author: BARNES, J.,

text:
    Richard Manley PETERSON, Individually and Executor of the Estate of Cornelia Barnett Peterson, Deceased and Jason Andrew Peterson, Appellants v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM of Mississippi, Appellee.
    No. 2010-CA-01224-COA.
    Court of Appeals of Mississippi.
    Jan. 10, 2012.

      Robert M. Logan Jr., Newton, attorney for appellants.
    Office of the Attorney General by Peter W. Cleveland, attorney for appellee.
    Before LEE, C.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court:

¶ 1. On July 30, 1996, Thomas Calvin Peterson (Calvin) was appointed by an Alabama probate court as guardian and conservator of his mother, Cornelia Barnett Peterson, who was suffering under a disability due to drug addiction. Cornelia, a long-time employee of the State of Mississippi, had recently retired due to her disability, and Calvin submitted an application on her behalf to the Public Employees’ Retirement System (PERS) for disability retirement benefits, naming himself as beneficiary. Under the “Option 4-A” plan that Calvin selected, Cornelia was to receive a reduced benefit during her lifetime, and he was to receive 50% of the benefits upon Cornelia’s death. She began receiving benefits in 1997. In 1999, the Alabama court removed any guardianship or conservatorship over Cornelia, and a few months later, she requested that her beneficiary designation be changed to another son. PERS, citing statutory restrictions, denied this request. Cornelia died in 2002, and Calvin began receiving benefits.

¶ 2. Cornelia’s estate (the Estate) filed a complaint and subsequent motions of summary judgment against PERS and Calvin, claiming that Calvin was guilty of “fraudulent and unauthorized misconduct,” and PERS should have honored Cornelia’s request to change her beneficiary. The Hinds County Circuit Court granted the motion against Calvin, finding that he was “disqualified ab initio” as a beneficiary. The circuit judge’s order remanded the issue to the chancery court that was handling the estate probate proceedings for a determination of who should be designated the beneficiary of Cornelia’s benefits under Mississippi Code Annotated section 25-11-117.1 (Rev.2006).

¶ 3. However, in a second order, the circuit court denied the Estate’s motion for summary judgment against PERS, citing the statutory language prohibiting the change of beneficiary designation after the member has received benefits. PERS, therefore, ceased all benefit payments claiming that Calvin’s designation as the beneficiary was void. Appealing the denial of summary judgment in favor of PERS, the Estate claims that the circuit court’s holdings were inconsistent and that the circuit court erred by failing to state in the later judgment that payments were to continue to other designated beneficiaries.

¶ 4. We find that the Estate’s argument has merit, and we reverse the judgment of the circuit court and remand this case for further proceedings consistent with this opinion.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 5. Cornelia was a youth-services counselor with the Mississippi Department of Human Services. However, on April 15, 1996, she left her employment due to her addictions to drugs and alcohol. Later that year, Calvin filed a petition to be appointed as Cornelia’s guardian and conservator in the Probate Court of Sumter County, Alabama. His petition was granted on July 30,1996.

¶ 6. On August 26, 1997, Calvin applied to PERS for Cornelia’s disability retirement benefits on her behalf. He named himself as Cornelia’s sole beneficiary and selected “Option 4-A.” This option, under Mississippi Code Annotated section 25-11-115(1) (Rev.2006), provides that upon the death of the member, one-half of the retirement benefits shall continue to be paid to the person designated as the beneficiary. The retired member receives a reduced retirement benefit during his or her life so that the beneficiary may receive benefits after the member’s death. Copies of the Alabama order granting Calvin’s petition for conservatorship and guardianship accompanied the application to PERS.

¶ 7. On September 18, 1997, Calvin completed a second application for benefits, again naming himself beneficiary, but this time he selected “Option 2.” At this time, PERS received certified copies of the Alabama order and letters granting conserva-torship and guardianship. For reasons unknown to this Court, neither of the two previous applications were approved. On October 10, 1997, Calvin completed a third application for his mother, and like the first application, Calvin named himself as beneficiary and selected “Option 4-A.” The third application for benefits was approved by PERS on October 16, 1997. Cornelia was sent a notice letter, informing her that no changes to the selection of the option could be made, and she received her first disability benefit check on December 1, 1997.

¶ 8. In 1998, Cornelia, who was then living in Union County, Mississippi, filed a petition with the Probate Court of Sumter County, Alabama, to have Calvin removed as conservator. An order removing Calvin as conservator and guardian was entered on July 10,1998; subsequently, on October 22, 1998, Cornelia was awarded a judgment of $28,504.20. A successor guardian was appointed, who was later discharged on August 9,1999.

¶ 9. On March 21, 2000, Cornelia sent PERS a letter, requesting that Calvin be removed as her designated beneficiary and her other son, Jason Andrew Peterson, be substituted as the beneficiary. However, PERS responded that under Mississippi Code Annotated section 25-11-115(2) (Rev. 2006), Cornelia was not permitted to make any changes to her option after she had begun receiving benefits.

¶ 10. Cornelia died on February 21, 2002. The Estate filed a complaint with the Hinds County Chancery Court on February 18, 2004, against PERS and Calvin. This complaint subsequently was transferred to the Hinds County Circuit Court on June 14, 2004.

¶ 11. The Estate filed a motion for summary judgment on May 15, 2008, asserting that Calvin did not have proper legal authority to execute the PERS applications for benefits and that PERS was unjustly enriching Calvin “for his fraudulent acts.” In its subsequent reply to support its motion for summary judgment, the Estate requested that the application for benefits be reformed “to remove Thomas Calvin Peterson as sole beneficiary and to honor Cornelia Barnett Peterson’s intention to name her son Jason Andrew Peterson as beneficiary.” In its response to the motion, PERS maintained that it had no choice but to adhere to section 25-11-115(2) and deny Cornelia’s request to change her beneficiary. PERS also claimed that it was required to give full faith and credit to the Alabama order of conservatorship.

¶ 12. At the motion hearing on September 8, 2008, all parties stipulated that there were no genuine issues of material fact. On September 30, 2008, PERS notified Calvin that it was suspending any future benefit payments until the pending litigation was resolved.

¶ 13. On January 22, 2009, the circuit court granted the Estate’s motion for summary judgment against Calvin, finding Calvin had failed to register his Alabama letters of guardianship and conservator-ship in Mississippi; he had failed to obtain court approval to elect himself beneficiary of his mother; and he “was guilty of self-dealing.” Therefore, the circuit court declared Calvin “disqualified ab initio as a beneficiary” and awarded the Estate a judgment of $56,399.97, which was the amount “illegally received by [Calvin] from the Public Employees’ Retirement System of Mississippi through September 3, 2008, as beneficiary under the account of Cornelia B. Peterson, deceased.” It also awarded the Estate interest until the judgment is paid in full.

¶ 14. Yet, on March 6, 2009, the circuit court entered an order denying the Estate’s motion of summary judgment against PERS. In its findings of facts, the circuit court concluded that although the circumstances of the case were “unfortunate,” the decision by PERS to prohibit any changes to Cornelia’s designation of beneficiary was “consistent with [the] statute,” and there was “no legal basis for recovery against PERS[.]” The order did not address the issue of any future benefit payments.

¶ 15. The Estate filed a motion for a new trial, which the circuit court denied on July 10, 2009, finding it was inapplicable to summary judgments. On August 6, 2009, the Estate filed a notice of appeal of the circuit court’s order denying its motion for summary judgment against PERS. It claims that the circuit court erred in its March 6, 2009 order by not directing PERS to make future benefit payments as directed by the Newton County Chancery Court. Calvin is not participating in this appeal.

¶ 16. Upon review, we find that the circuit court’s March 6, 2009 order did not properly address the payment of future benefits as contemplated in its January 22, 2009 order. Accordingly, we reverse the circuit court’s judgment and remand this case for instructions that future benefit payments are to continue to the appropriate beneficiaryfies) as determined under section 25-11-117.1.

DISCUSSION

¶ 17. This Court applies a de novo review of a circuit court’s grant or denial of a motion of summary judgment. Charlot v. Henry, 45 So.3d 1237, 1246 (¶ 31) (Miss.Ct.App.2010) (citing Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002 (¶ 7) (Miss.2001)).

¶ 18. On appeal, the Estate contends the circuit court’s two rulings pertaining to its motion for summary judgment were inconsistent. In the circuit court’s findings of fact, on January 22, 2009, for the granting of summary judgment against Calvin, it stated:

Right and equity demand that Calvin not be justly enriched. This Court, therefore, finds that Calvin Peterson is disqualified ab initio as a beneficiary of Cornelia’s disability retirement benefits. Therefore, actions of self-dealing are void. Accordingly, those benefits should be distributed pursuant to Mississippi] Code Annotated section] 25-11-117.1. Cornelia’s estate remains open, and the matter of who is eligible to receive the benefits under [section] 25-11-117.1, consistent with this Court’s ruling, should be referred to that court for resolution, in the matter of In re Cornelia Peterson, deceased, Cause No.2002-NO110 in the Chancery Court of Newton County, Mississippi.
PERS is hereby forthwith enjoined from making any additional payments to [Calvin.]

(Emphasis added). Section 25-11-117.1 states in pertinent part:

(1) Except as otherwise provided in subsection (2) of this section, where benefits are payable to a designated beneficiary or beneficiaries under this article and the designated beneficiary or beneficiaries as provided by the member on the most recent form filed with the system is deceased or otherwise disqualified at the time such benefits become payable, the following persons, in descending order of precedence, shall be eligible to receive such benefits:
(b) The children of the member or retiree or their descendants, per stirpes [.]

(Emphasis added). Thus, the circuit judge’s January 22, 2009 order disqualified Calvin from receiving any future payments; and citing section 25-11-117.1(l)(b), the judge requested that the Newton County Chancery Court, which has jurisdiction over Cornelia’s estate, determine the beneficiary(ies) of Cornelia’s retirement benefits.

¶ 19. However, in the circuit court’s March 6, 2009 order denying summary judgment against PERS, it did not address the issue of designation of future benefit payments. Thus, the Estate argues on appeal that the March 6, 2009 order should be reversed for clarification that future benefit payments are to continue and “paid to the appropriate beneficiaries as determined by the [cjhancery [cjourt, and PERS should recover from [Calvin] for payments erroneously made by PERS to him.”

¶ 20. PERS’s interpretation of the circuit court’s judgments is that Calvin’s election as a beneficiary is completely void; therefore, the application “must be viewed as one in which no beneficiary was selected.” Further, PERS claims that no additional benefits are payable since Cornelia’s retirement benefit payments have exceeded her total contributions. See Miss.Code Ann. § 25 — 11—115(1). PERS also contends that section 25-11-117.1 cannot apply since the statute reads that the designated beneficiary must be disqualified when benefits become payable.

¶ 21. We must disagree with PERS’s reasoning. The circuit court did not conclude that the PERS application, which designated “Option 4-A,” was invalid. Rather, the circuit court merely found Calvin, as fiduciary, “disqualified ab initio” as a beneficiary. Further, Cornelia did not attempt to designate another option; in fact, she reaffirmed “Option 4-A” and sought to have another son designated as the beneficiary. Moreover, PERS has failed to address the fact that Cornelia received a reduced benefit during her life based on the “Option 4-A” selection. If PERS views the application as one in which no beneficiary was selected, then Cornelia was compensated inadequately in the payment of her disability benefits during her life.

¶ 22. Also, we find that the circuit court’s order did not render Cornelia’s beneficiary designation void. While the use of the term “ab initio” means that his disqualification was “[f|rom the beginning” of the application’s approval, we do not find the designation as a beneficiary is to be regarded as never having occurred. This signifies that Calvin is considered to be disqualified when the benefits became payable to Cornelia. Furthermore, at the hearing on the motions, the Estate had expressed its concern that PERS would take the position that “no further payments are owed.” The circuit judge responded: “[I]t’s certainly the intent that— that PERS make these payments.” Therefore, PERS was aware that the circuit judge intended for benefit payments to continue to whomever was designated as beneficiary by the chancery court. PERS does not appeal the circuit court’s findings from its January 22, 2009 order.

¶ 23. Admittedly, we agree with the circuit court that PERS’s denial of Cornelia’s request to change beneficiaries was consistent with section 25-11-115(2). Further, nothing in the record shows that PERS was aware that Calvin was acting in a fraudulent manner. However, “public pension systems are bound up in the public interest and provide public employees significant rights which are deserving of conscientious protection.” Zigmont v. Bd. of Trustees, Teachers’ Pension and Annuity Fund, 91 N.J. 580, 453 A.2d 1333, 1334 (1983). In this unique situation, we agree with the circuit court’s determination in the January 22, 2009 order that it “must resort to its equity powers,” and the benefits should be distributed to Cornelia’s remaining eligible children as outlined in section 25-11-117.1.

¶ 24. Section 25-11-115(2) prohibits a change in beneficiary after the retired member receives his first payment because PERS bases the amount of benefits on the actuarial computation of the life of the retired member and, depending on which option the member chose, the life of the designated beneficiary. As PERS noted in its letter to Cornelia, denying her request to change her beneficiary: “In the case of Option 4-A, the actuarial equivalent is based not only on your age and life expectancy at the time of your retirement, but on the age and life expectancy of the beneficiary named on the retirement application.” This Court understands that to allow any changes to the beneficiary after benefits have been calculated and disbursement has commenced would create an administrative nightmare for PERS.

¶ 25. But although Calvin’s fraudulent behavior as Cornelia’s fiduciary “disqualified” him from future benefits, we find no reason why the benefit payments based upon Calvin’s lifetime may not continue to be paid to the beneficiary(ies) designated by the chancery court under section 25-11-117.1. This is similar to a granting of a life estate per autre vie, “an estate for or during the life of another!.]” 28 Am.Jur.2d. Estates § 60 (2011). Once Calvin is deceased, all benefit payments will terminate, and PERS will have only disbursed the same amount of benefits calculated at the time of the original application. The only difference is that Calvin will not benefit from his wrongdoing.

¶ 26. Accordingly, we reverse the March 6, 2009 judgment based on the omission of any instructions regarding future benefit payments, and we remand this case to the circuit court for proceedings consistent with this opinion.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THE APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ., CONCUR. CARLTON AND FAIR, JJ., NOT PARTICIPATING.

      . Option 2 provides:
      Upon the retired member’s death, his or her reduced retirement allowance shall be continued throughout the life of, and paid to, such person as the member has nominated by written designation duly acknowledged and filed with the board of trustees at the time of his or her retirement[.]

      . Although the Estate sent a notice of appeal to the Hinds County Circuit Clerk on August 5, 2009, with a request for estimated costs, it was not originally acknowledged or recorded. A second and third request were sent on September 4, 2009, and October 26, 2009, respectively. Those were also not acknowledged. A fourth notice of appeal was received by the circuit clerk on February 3, 2010, along with a motion requesting that the notice of appeal be deemed timely filed. The circuit court sustained the motion, allowing the appeal to proceed, and the original notice of appeal, stamped with the August 6, 2009 date, was entered into the record.

      . Cornelia’s total contribution to PERS is $36,381.92. The benefits disbursed to Calvin through September 3, 2008, totaled $56,399.97.

      . See Black’s Law Dictionary 5 (8th ed. 2004).


source: Caselaw Access Project

author: WISE, Justice. MURDOCK, Justice

license: Public Domain

text:
    N.C. v. P.R. CALDWELL.
    1081434.
    Supreme Court of Alabama.
    April 22, 2011.
    Rehearing Denied Aug. 12, 2011.

      Thomas E. James of Morris, Haynes & Hornsby, Birmingham, for appellant.
    Mark S. Boardman and Katherine C. Hortberg of Boardman, Carr, Hutcheson & Bennett, P.C., Chelsea, for appellee.
   WISE, Justice.

The plaintiff, N.C., appeals from a summary judgment entered by the Tallapoosa Circuit Court, in favor of P.R. Caldwell, her physical-education teacher, as to all of her claims against Caldwell. We reverse and remand.

Facts and Procedural History

In October 2005, N.C. was a student in the seventh grade at Edward Bell School; she had a physical-education class in the school gym during the fifth period of the school day, which was taught by Caldwell. On October 31, 2005, after the bell rang at the end of the physical-education class, Caldwell accompanied the majority of the students outside the gym, which was located in a separate building, and made sure they went into the other school buildings rather than into a nearby parking lot. N.C. was getting her book bag from the bleachers, and most of the other students had left the gym. A.H., a male student in the 12th grade at the school, approached N.C. and started pulling her toward the boys’ locker room with him. Shortly before he turned his attention to N.C., A.H. had made suggestive comments to another girl, but she ran out of the gym. A.H. and W.G., another male student, pulled N.C. toward the boys’ locker room, which was located under the gym. She told them to stop and tried to push away from them, but was not able to. A.H. pushed N.C. down the steps into the boys’ locker room, and she fell and hit her head on the rail. He then pulled her into the shower and raped her while W.G. stood watch.

After the incident, N.C. left the gym and went to her sixth-period class without reporting the incident to any teacher or school official. Caldwell was outside the gym when she left. N.C. told some of her girlfriends what had happened, but asked them not to say anything. N.C. presented evidence indicating that Caldwell had appointed A.H. to serve as a student aide in the fifth-period physical-education class and also evidence indicating that before the incident several female students had complained to Caldwell that A.H. had acted inappropriately toward them. On November 9, 2005, the incident with N.C. was reported to school officials.

N.C., by and through her grandfather and guardian, J.C., filed a personal-injury action against the Tallapoosa County Board of Education and against Caldwell and Glenda Menniefee, the principal of the school, in their official and individual capacities. Caldwell and Menniefee filed a motion for a summary judgment, with supporting materials; the Board also filed a motion for a summary judgment, with supporting materials. In the motion for a summary judgment, Caldwell and Mennie-fee specifically asserted, among other things, that N.C.’s claims against them were barred by the doctrine of State-agent immunity. N.C. filed a motion in opposition to the motion for a summary judgment as to Caldwell and attached additional materials to support her motion; she apparently did not oppose the entry of a summary judgment for the Board and Menniefee. Caldwell then filed motions to strike various evidentiary items and a response to N.C.’s opposition.

The trial court conducted a hearing on the various motions. Afterward, it entered the following order:

“This matter has come before the Court on the Motion for Summary Judgment for the defendants Glenda Mennie-fee and P.R. Caldwell, the Motion for Summary Judgment for the Tallapoosa County Board of Education, and three Motions to Strike filed by P.R. Caldwell. All parties have briefed the issues proposed and provided their evidence to the Court. The Court held lengthy oral argument on February 17, 2009.
“[N.C.’s] Complaint alleged that the Tallapoosa County Board of Education was in violation of Title IX for allegedly subjecting the minor plaintiff to sexual discrimination through a hostile sexual environment or was deliberately indifferent to a hostile sexual environment. [N.C.] also stated a claim, pursuant to 42 U.S.C. § 1983, that defendants Mennie-fee and Caldwell violated the minor plaintiffs Fourteenth Amendment Due Process and Equal Protection rights by failing to take appropriate corrective action after having actual knowledge that [A.H.] was sexually harassing students. [N.C.] also claimed that defendants Menniefee and Caldwell negligently or wantonly supervised the minor plaintiff and the students in the minor plaintiffs class; left [A.H.] unsupervised in a classroom setting with the minor plaintiff and other students; and failed to report pursuant to Alabama Code (1975) § 26-14-3.
“[N.C.] has responded separately to the Motions for Summary Judgment. [N.C.’s] filing on February 13, 2009, states that [N.C.] has no objection to this Court granting summary judgment on behalf of the Tallapoosa County Board of Education and Glenda Mennie-fee. Nevertheless, since [N.C.] is a minor and cannot contract to settle cases without approval of the Court, this Court has reviewed the law and evidence to determine whether summary judgment should be entered for the Tallapoo-sa County Board of Education and Glenda Menniefee.
“[N.C.] contests summary judgment for Mr. Caldwell, candidly stating that its strongest opposition is to summary judgment on the state tort claims, not the federal claim. P.R. Caldwell’s principal defense is immunity. [N.C.] has not responded to Mr. Caldwell’s arguments that the official capacity claim against him is duplicative of the claim against the Board of Education, that there is no private right of action under Alabama Code (1975) § 26-14-3, that there is no express or implied duty to provide a safe environment, and that [N.C.’s] request for an ‘obey the lav^ injunction is due to fail.
“Immunity, both state and federal, is quite strong. Our Supreme Court has been particularly reluctant to hold an educator responsible for sexual misconduct by another. The Court has said that, without immunity, educators ‘may act not on the basis of policy, but with the goal of avoiding personal liability or vexatious suits,’ Nance v. Matthews, 622 So.2d 297, 302 (Ala.1993). In suits where a student was sexually assaulted either by another student or outsider and where the educators were accused of improper supervision, the Supreme Court has consistently found the educators immune on summary judgment. In cases where employees of a board of education sexually assaulted students and the supervisory educators were said to have knowledge of either the specific sexual assaults or that the board employee would sexually assault students, the Supreme Court has ruled in favor of the educators on both a motion for judgment on the pleadings and a motion to dismiss. In cases where there is notice to the supervisory educators of a potential for sexual or other physical misconduct by one student on another or by an educator on a student, the Supreme Court has consistently ruled in favor of the supervisory educators, either affirming summary judgment or, by order of mandamus, requiring the trial court to enter summary judgment. These cases include decisions that either there is no legal breach of duty or that breach of any duty did not proximately cause the sexual misconduct or physical misconduct.
“The federal claim against Mr. Caldwell is a federal civil rights violation. To be liable, Coach Caldwell must both have acted with deliberate indifference and have lost qualified immunity. [N.C.] cannot win on either argument, given the law from the Alabama Supreme Court, as noted above, and federal caselaw. Importantly, for a government employee to lose qualified immunity, the Eleventh Circuit says a court must consider decisions of the Alabama Supreme Court, U.S. Supreme Court, or Eleventh Circuit Court of Appeals. [N.C.] cannot present such caselaw, and this Court has not found caselaw supporting [N.C.] in the Court’s own examination of this matter.
“Pending before the Court are three Motions to Strike. The Court has considered each and finds portions of those motions well taken. In resolution of those Motions to Strike, the Court has not considered any improper evidence in reaching its decision. However, should the Court deny the Motions to Strike, the Court finds that nothing presented by [N.C.] overcomes the immunity possessed by the defendants.
“Further, the claim for equitable relief found in Paragraphs 43 through 47 of [N.C.’s] Complaint is due to be denied for the reason stated in the defendants’ arguments.
“Having examined the law, reviewed the evidence presented by parties, and analyzed the arguments of the parties, the Court finds that the defendants the Tallapoosa County Board of Education, Glenda Menniefee, and P.R. Caldwell, whether sued officially or individually, are entitled to summary judgment on all claims of [N.C.]. Therefore, it is ORDERED, ADJUDGED and DECREED that summary judgment is entered in favor of the defendants the Tallapoosa County Board of Education, Glenda Menniefee, and P.R. Caldwell, on all claims of [N.C.]. Costs of court incurred are taxed as paid.”

N.C. filed a motion to alter, amend, or vacate, which was denied by operation of law. This appeal followed.

Standard of Review
“ ‘ “This Court’s review of a summary judgment is de novo. Williams v. State Farm, Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the non-movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. South-Trust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).”’
“Prince v. Poole, 935 So.2d 431, 442 (Ala.2006) (quoting Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004)).”

Brown v. W.P. Media, Inc., 17 So.3d 1167, 1169 (Ala.2009).

Discussion

In Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000), the rule governing State-agent immunity was restated as follows:

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

792 So.2d at 405. Also,

“[t]his Court has established a ‘burden-shifting1 process when a party raises the defense of State-agent immunity. Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala.2003). In order to claim State-agent immunity, a State agent bears the burden of demonstrating that the plaintiffs claims arise from a function that would entitle the State agent to immunity. Giambrone, 874 So.2d at 1052; Ex parte Wood, 852 So.2d 705, 709 (Ala.2002). If the State agent makes such a showing, the burden then shifts to the plaintiff to show that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority. Giambrone, 874 So.2d at 1052; Wood, 852 So.2d at 709; Ex parte Davis, 721 So.2d 685, 689 (Ala.1998). ‘A State agent acts beyond authority and is therefore not immune when he or she “fail[s] to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.” ’ Giambrone, 874 So.2d at 1052 (quoting Ex parte Butts, 775 So.2d 173, 178 (Ala.2000)).”

Ex parte Estate of Reynolds, 946 So.2d 450, 452 (Ala.2006). “State-agent immunity protects agents of the State in their exercise of discretion in educating students. We will not second-guess their decisions.” Ex parte Blankenship, 806 So.2d 1186, 1190 (Ala.2000). However, “[o]nce it is determined that State-agent immunity applies, State-agent immunity is withheld upon a showing that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority. Cranman, 792 So.2d at 405.” Ex parte Bitel, 45 So.3d 1252, 1257-58 (Ala.2010).

N.C. does not appear to take issue with the fact that Caldwell would ordinarily be entitled to State-agent immunity under Ex parte Cranman. However, she argues that, in this case, Caldwell is not entitled to State-agent immunity because, she alleges, there is a genuine issue of material fact as to whether, in his acts and omissions, he was acting beyond the scope of his authority. Specifically, she contends that Caldwell acted beyond his authority when he allegedly failed to properly supervise her, A.H., and W.G. at the time of the rape; when he allegedly allowed A.H. to act as a teacher’s aide; and when he ignored and failed to report previous claims by other female students of sexual harassment by A.H. Therefore, she contends that the trial court erred in entering a summary judgment for Caldwell on the basis of State-agent immunity.

In her deposition, N.C. specifically stated that A.H. approached her after the fifth-period dismissal bell had rung. She also stated that Caldwell and the other students had left the gym and that she, A.H., and W.G. were the only ones in the gym when A.H. approached her. Finally, N.C. stated that, when she left the gym after the rape, Caldwell was outside walking by the stairs.

Caldwell presented evidence indicating that at the time the rape occurred he was exercising judgment in accompanying the students away from the gym and ensuring that they went to other parts of the school. In his affidavit, Caldwell stated, in part:

“My name is P.R. Caldwell. At all times relevant to this suit, I was employed by the Tallapoosa County Board of Education as a physical education teacher for high school students, assistant basketball coach and the athletics director at Edward Bell High School.
“On October 31, 2005, the minor plaintiff identified as ‘N.C.’ was a student in my fifth period high school physical education class. There were twenty-one students in my fifth period class that school year. The fifth period class was held in the school’s gym, which consists of a competition size gymnasium, separate weight room, lobby and restrooms and girls’ and boys’ locker rooms. There are also two stairwells and bleachers. All of these are separated from the rest of the school, with the distance meaning that, unless I stood near the front of the gym, I could not hear the school’s bells or [public-announcement] system, which was also used for security purposes. The locker rooms are located underneath the gym so neither set of stairs leading to the locker rooms nor the locker rooms themselves are visible from the gym. Likewise, areas of the lobby, the entire bathrooms, in between cars in the parking lot and the outside of the building cannot be seen from inside the gym. Based upon my own judgment and discretion under the circumstances, taking into account the weather, number of students present in the gym and curriculum and skills to be taught on a particular day, I determined where the students would be during class (either outside, in the gym or in the weight room) and how they would be supervised. I had been given no specific instructions, either written or verbal, by the Tallapoosa County Board of Education or by any of my superiors (or anyone else) regarding how to supervise the students in the gym, locker rooms and weight room prior to the incident made the basis of the complaint. I also had been given no specific instructions or guidelines on how to supervise students in the different areas when it was necessary for me to divide them between the gym, locker rooms and weight room. I was not given any specific instructions or guidelines on how to dismiss students at the end of the class period from the gym. There are no Board of Education policies which specifically instruct me on how to do this. In determining how to allocate my time between the students so that they were adequately monitored and supervised, I relied upon my own judgment. The 2005-06 school year was the only year in which I was not provided an aide to assist me in monitoring the activities of the students in my classes.
“I believe that young adults and high school students possess the maturity and knowledge to be able to work on the skills assigned that day if I step out of the gym and into the weight room or vice versa. I believe that they also know how to exit the gym at the end of the class period and proceed to their lockers and next classes. I know from my experience and training that high school students need not be individually supervised at all times nor do these students require an educator to be within their view constantly when performing physical education activities. When class is over, my experience tells me that students leave to go to their next class. I, too, am allowed to leave, including to go to the office to retrieve my mail. I must regularly check my mailbox for mail and notices, including absentee notices during the school day. Furthermore, walking away from the gym when the classes change allows me to better monitor the change of classes, particularly since the gym is in a separate building from the remainder of the school. My presence outside the gym also discourages students from going to the parking lot.”

Menniefee also provided evidence that showed that Caldwell was acting within the scope of his duties when the rape occurred. In her affidavit, she stated: '

“It is my understanding that there were no students assigned to Coach Caldwell in the sixth period during the 2005-06 school year. It was appropriate for Coach Caldwell to walk out of the gym with the students from his fifth period class after the dismissal bell had rung to check his mail between class periods. If sixth period was Coach Caldwell’s planning period that year, he would not have been required to remain in the gym during sixth period.”

N.C. did not dispute Caldwell’s assertions in his affidavit that he- was acting within the scope of his duties when he left the gym with the other students after the fifth-period dismissal bell rang. Based on the undisputed evidence presented, Caldwell satisfied his burden of establishing that, at the time of the rape, which occurred after the fifth-period dismissal bell had rung, he was exercising judgment in the discharge of his duty to supervise and educate students by accompanying them out of the gym, ensuring that they did not go to the parking lot but went back to the school building, and thereafter going to the main school building to check his mail.

However, N.C. also argues that Caldwell acted beyond his authority by appointing A.H. as a student aide to assist him with his fifth-period physical-education class. In support of her motion in opposition to Caldwell’s motion for a summary judgment, N.C. presented affidavits from three students who stated that Caldwell had told them that A.H. was going to be in charge of the class a few days a week because Caldwell did not have an aide to assist him with the class. She also presented an affidavit from A.H. in which he stated that Caldwell had asked him to supervise students in the gym and weight room from noon until 3:00 p.m. on certain days, that Caldwell went into his office or left campus during those times, and that Menniefee was aware that A.H. was supervising students because Caldwell had allegedly told her about the arrangement. Caldwell did state that the 2005-2006 school year was the first year he had not been given an aide to assist him and that he did not have a teaching assistant or other teacher to help him with monitoring his students. However, he never indicated that he appointed A.H. to act as a student aide during Caldwell’s fifth-period physical-education class. Rather, when he was asked if he allowed A.H. to be in the gym after A.H. was finished with school on any given day, Caldwell specifically stated that they always tried to run other students out of the gym and that he had, in fact, asked A.H. to leave the gym on previous occasions because he was not supposed to be there. He further stated that he did not know that A.H. was in the gym on the day of the incident; that, to his knowledge, A.H. did not have permission from anyone to be in the gym on the day of the incident; and that, if he had known A.H. was there, he would have asked him to report to the office. Also, the faculty handbook for Edward Bell School provides: “Any student not scheduled for a class should not attend that class.” Further, Menniefee testified that A.H. should not have been in the gym at the time the incident occurred. Specifically, she testified that he got out of school at 11:45 a.m. and was required to leave campus at that time unless he was eating lunch. Finally, Menniefee testified that she conducted teacher evaluations of Caldwell and that, during her walk-through visits to the gym, he was performing his duties and supervising the students in his classes and was not in his office or off campus. Thus, there are genuine issues of material fact as to whether Caldwell actually appointed A.H. as a student aide and, if he did, whether he acted beyond his authority in doing so.

Finally, N.C. argues that Caldwell acted beyond his authority because he allegedly ignored and failed to report prior claims by other female students of sexual harassment by A.H. The Tallapoosa County Schools 2005-2006 Code of Conduct provides that “[i]t shall also be a violation of board policy for any teacher ... to tolerate sexual harassment.... ” Menniefee testified that, if Caldwell had been aware that A.H. was sexually harassing female students, he would have been required to report it. She also testified that Caldwell never reported any such sexual harassment by A.H. to her. Further, Caldwell stated that he was not aware that A.H. was sexually harassing anyone and that he had not received any specific complaints to that effect. He added that, if he had known that A.H. was sexually harassing female students, he would have taken disciplinary action against A.H. However, N.C. presented affidavits from two female students who alleged that A.H. made inappropriate comments of a sexually harassing nature to them and that they complained to Caldwell that A.H. was “harassing” them. Therefore, there are genuine issues of material fact as to whether Caldwell was actually aware that A.H. was sexually harassing other female students and, if he was, whether he failed to respond to the allegations.

Caldwell established that N.C.’s claims arose from a function that would entitle him to State-agent immunity. See Blankenship, supra; Cranman, supra. However, N.C. produced evidence that, if believed, could establish that Caldwell acted beyond his authority in appointing A.H. as a student aide and in ignoring and failing to report other claims of sexual harassment by A.H. See Bitel, supra; Cranman, supra. Therefore, there are genuine issues of material fact as to whether Caldwell is entitled to a summary judgement on the basis of the doctrine of State-agent immunity. See, e.g., Ex parte Jones, 52 So.3d 475 (Ala.2010).

“ ‘If there is a genuine issue as to any material fact on the question whether the movant is entitled to immunity, then the moving party is not entitled to a summary judgment. Rule 56, Ala. R. Civ. P.’ Ex parte Wood, 852 So.2d 705, 708 (Ala.2002); Blackwood v. City of Hanceville, 936 So.2d 495, 507 (Ala.2006) (holding that there was a genuine issue of material fact as to the State-agent defendant’s rate of speed; a jury’s determination of that speed would determine whether the defendant was entitled to State-agent immunity and privilege under Ala.Code 1975, § 6-5-338(a) and § 32-5A-7(b)(3)).”

Suttles v. Roy, 75 So.3d 90, 100 (Ala.2010).

Conclusion

Because there remain genuine issues of material fact that could defeat Caldwell’s claim of State-agent immunity, the trial court erred in entering a summary judgment for Caldwell on that ground: Therefore, we reverse the trial court’s judgment and remand this case for further proceedings.

REVERSED AND REMANDED.

COBB, C.J., and WOODALL, STUART, BOLIN, PARKER, SHAW, and MAIN, JJ., concur.

MURDOCK, J., dissents.

MURDOCK, Justice

(dissenting).

I respectfully dissent. I cannot find substantial evidence in the record that the pre-incident complaints by other students were specific enough to put Caldwell on notice that A.H.’s “harassing” of these students was sexual in nature. Nor does there appear to be substantial evidence showing that there was in place an established school policy, written or otherwise, forbidding Caldwell from appointing a student to assist him or that Caldwell was aware of information that would have established that A.H. should not be allowed to serve as a student aide.

Apart from the foregoing, I question the understanding of the “beyond his or her authority” element employed by the Court in the main opinion. See Ex parte Monroe County Bd. of Educ., 48 So.3d 621, 630 (Ala.2010) (Murdock, J., concurring in part and dissenting in part); Ex parte Watson, 37 So.3d 752, 765-66 (Ala.2009) (Murdock, J., concurring in part and dissenting in part).

      . N.C.'s complaint filed in 2007 and in the Tallapoosa Circuit Court was filed in the name of "N.C., a minor child, by and through her guardian, J.C.” The noticé of appeal filed in 2009 was filed in the name "N.C.” It does not appear from anything in the record, however, that N.C. has reached the age of majority or has been emancipated.

      . The record indicates that A.H. pleaded guilty to the first-degree rape of N.C.

      . Cranman was a plurality opinion. The test set forth in Cranman was subsequently adopted by a majority of the Court in Ex parte Butts, 775 So.2d 173, 178 (Ala.2000).

      . N.C. also addresses the admissibility of several evidentiary items. Although the trial court stated that portions of Caldwell’s motions to strike were well taken, it did not specify which, if any, of the evidentiary items it struck. For purposes of this opinion, we have treated all the items considered as having been admitted. Therefore, we will not address N.C.’s arguments regarding the admissibility of the evidentiary items.

      . The record indicates that A.H. was finished with his school day around lunchtime.


author: WOODALL, Justice. MURDOCK, Justice

text:
    Ex parte WACHOVIA BANK, N.A. (In re Tameka Floyd and Unique Image Pro Car Care v. Wachovia Bank et al.).
    1100645.
    Supreme Court of Alabama.
    May 27, 2011.

      Floyd D. Gaines, W. Patton Hahn, and Marianne H. Combs of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, for petitioner.
    Fred D. Gray and Stanley F. Gray of Gray, Langford, Sapp, McGowan, Gray, Gray & Nathanson, P.C., Tuskegee, for respondents.
   WOODALL, Justice.

Wachovia Bank, N.A. (“Wachovia”), petitions this Court for a writ of mandamus directing the Macon Circuit Court to vacate its order denying Wachovia’s motion to transfer the underlying case to Lee County on the ground of forum non conve- niens and to enter an order granting the motion. We grant the petition and issue the writ.

I. Factual and Procedural Background

On April 4, 2008, Tameka Floyd and her husband, Adam Lee Floyd, were joint signatories on a business checking account in the name of Adam Lee Floyd, d/b/a Unique Image Pro Car Care (“Unique”), at one of Wachovia’s branch banks in Auburn. On that day, an allegedly unauthorized withdrawal in the amount of $3,000 appeared on Unique’s account. The discovery of this withdrawal precipitated an investigation by the Auburn Police Department.

On March 30, 2009, Tameka Floyd and Unique filed a complaint in the Macon Circuit Court against Wachovia and Tammy Sistrunk, a sometime employee of Unique, alleging that Sistrunk — a resident of Macon County — had taken funds from Unique’s account “by forging the name of an authorized signatory on withdrawal slips.” The complaint alleged that Wacho-via “knew, or should have known, that Defendant Sistrunk was not a signatory on Plaintiffs’ account and ... had no authority to withdraw money.” The complaint sought recovery of damages on various theories, including negligence and conversion.

On April 30, 2009, Wachovia answered the complaint, contending, among other things, that venue was improper in Macon County. Its venue challenge did not include, in the alternative, a request for a change of venue on the ground of forum non conveniens. On October 7, 2009, Floyd and Unique filed a first amended complaint, asserting a fraud claim against Wachovia.

On January 22, 2010, Wachovia answered the first amended complaint, again pleading that venue was improper in Macon County and, in the alternative, that the case was “due to be transferred pursuant to AIa.Code [1975,] § 6-3-21.1 for the convenience of the parties and witnesses and in the interest of justice.” On January 26, 2010, Wachovia filed a motion to transfer the action to Lee County, arguing primarily that a transfer was required based on caselaw applying the “interest-of-justice” prong of § 6-3-21.1.

On April 6, 2010, the motion to transfer was orally argued in the trial court. On April 8, 2010, Floyd and Unique filed a second amended complaint, adding as a defendant James M. Sutherland, a resident of Macon County. The amended pleading averred that Sutherland was “an employee of Defendant Wachovia and [was] responsible for supervision of the tellers, who processed” Sistrunk’s allegedly unauthorized account activity. On May 28, 2010, Wa-chovia filed a renewed motion to transfer the action to Lee County. On June 7, 2010, Sutherland filed a motion for a summary judgment.

On June 15, 2010, the trial court entered an order setting an August date for the trial of the case. On June 30, 2010, Wa-chovia filed a motion for a summary judgment. On July 22, 2010, the trial court entered an order postponing the trial date. On July 12, 2010, Wachovia moved to strike the plaintiffs’ jury demand. On January 13, 2011, the trial court heard arguments on, among other things, the summary-judgment motions and the motion to strike the jury demand. Before ruling on those motions, the trial court, on January 28, 2011, denied Wachovia’s motion to transfer the case to Lee County. This petition followed.

II. Discussion

A petition for a writ of mandamus is the appropriate “method for obtaining review of a denial of a motion for a change of venue” pursuant to § 6-3-21.1. Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998). Section 6-3-21.1 provides, in pertinent part:

“(a) With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein....
“(b) The right of a party to move for a change or transfer of venue pursuant to this statute is cumulative and in addition to the rights of a party to move for a change or transfer of venue pursuant to Section 6-3-20, Section 6-3-21 or Alabama Rules of Civil Procedure.”

(Emphasis added.)

“A party moving for a transfer under § 6-3-21.1 has the initial burden of showing, among other things, one of two factors: (1) that the transfer is justified based on the convenience of either the parties or the witnesses, or (2) that the transfer is justified ‘in the interest of justice.’ ” Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 539 (Ala.2008). Although we review a ruling on a motion to transfer to determine whether the trial court exceeded its discretion in granting or denying the motion, id., where “the convenience of the parties and witnesses or the interest of justice would be best served by a transfer, § 6-3-21.1, Ala.Code 1975, compels the trial court to transfer the action to the alternative forum.” Ex parte First Tennessee Bank Nat’l Ass’n, 994 So.2d 906, 912 (Ala.2008) (emphasis added).

In its petition for the writ of mandamus, Wachovia relies solely on the interest-of-justice prong as a ground for transfer.

“ ‘[I]n analyzing the interest-of-justice prong of § 6-3-21.1, this Court focuses on whether the “nexus” or “connection” between the plaintiffs action and the original forum is strong enough to warrant burdening the plaintiffs forum with the action.’ Ex parte First Tennessee Bank Nat’l Ass’n, 994 So.2d [at 911].... Further, in examining whether it is in the interest of justice to transfer a case, we consider ‘the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county.’ Ex parte Smiths Water & Sewer Auth., 982 So.2d 484, 490 (Ala.2007).”

Ex parte Indiana Mills, 10 So.3d at 540. Thus, the dispositive question is whether the nexus between this action and Macon County is “strong enough to warrant burdening” Macon County with this action. For the following reasons, we hold that it is not.

Lee County is the situs of all the alleged acts or omissions giving rise to the plaintiffs’ claims. Any allegedly unauthorized withdrawals were made from a Wa-chovia branch in Lee County. Police investigation of the matter was conducted in Lee County. Lee County is Floyd’s place of residence, as well as the location of Unique. Thus, Lee County is the place where all the injury alleged in the complaint occurred. Although it is not a talisman, the fact that the injury occurred in the proposed transferee county is often assigned considerable weight in an interest-of-justice analysis. See Ex parte Autauga Heating & Cooling, LLC, 58 So.3d 745, 748 (Ala.2010) (“ ‘[T]his Court has held that “litigation should be handled in the forum where the injury occurred.” ’ ” (quoting Ex parte Indiana Mills, 10 So.3d at 540)); Ex parte McKenzie Oil, Inc., 13 So.3d 346, 349 (Ala.2008) (same).

In short, nothing material to this case transpired in Macon County. Macon County’s sole material contact with this case is that the two individual defendants, Sistrunk and Sutherland, reside there. Recent cases decided under the interest-of-justice prong are dispositive.

In Ex parte Autauga Heating & Cooling, LLC, for example, this Court issued a writ of mandamus directing the Montgomery Circuit Court — in the interest of justice — to transfer the action to Elmore County. 58 So.3d at 747. That case arose out of an automobile accident involving Lori Lee Wright, a resident of Elmore County, and Richard Alexander Rogers, a resident of Montgomery County. The vehicle being operated by Rogers at the time of the accident was owned by Autauga Heating & Cooling, LLC (“Autauga”), which had its principal place of business in Autauga County. The accident occurred in Elmore County, and Wright received treatment at the scene of the accident from emergency medical personnel who lived in Elmore County. 58 So.3d at 749. When an action was brought against Rogers in the county of his residence, Rogers sought the removal of the action to Elmore County, the situs of the alleged acts or omissions and the place of the injury.

This Court concluded that a transfer of the case was required. In so doing, we said:

“Although we agree with Wright that the case has a connection with Montgomery County because Rogers is a resident of Montgomery County and [Autauga] may have some business connections there, ... the overall connection between Montgomery County and this case is weak and ... the connection between the case and Elmore County is strong.
“... Besides the fact that Rogers is a resident of Montgomery County, there was no other evidence before the trial court indicating a connection between the case and Montgomery County.
“The accident underlying this action occurred in Elmore County, and the emergency personnel who responded to the accident were from Elmore County. The plaintiff herself is a resident of El-more County. This Court sees no need to burden Montgomery County, with its weak connection to the case, with an action that arose in Elmore County simply because the individual defendant resides in Montgomery County and the corporate defendant does some business there.”

58 So.3d at 750 (emphasis added).

In so holding, this Court relied on and discussed Ex parte Indiana Mills & Manufacturing, Inc.:

“This Court addressed similar facts in Ex parte Indiana Mills & Manufacturing, Inc., supra. In Indiana Mills, the decedent was driving a garbage truck in Lee County owned by his employer when the raised rear door of the truck struck an overhead railroad trestle, causing the truck to crash. The decedent was killed when he was ejected from the truck. His widow filed a complaint in Macon County against the manufacturers of the garbage truck and the seat belts in the truck and three employees of the decedent’s employer. The employer’s principal place of business was in Tallapoosa County. The employer conducted business in Macon County, and one of the individual defendants lived in Macon County. The defendants moved the trial court to transfer the case to Lee County based on the doctrine of forum non conveniens. The trial court denied that motion, and the defendants petitioned this Court for mandamus relief.
“This Court granted the defendants’ mandamus petition and ordered the trial court to transfer the case from Macon County to Lee County based on the ‘interest of justice’ prong of § 6-3-21.1. In doing so, this Court noted that the accident occurred in Lee County, that the law-enforcement and emergency personnel who had responded to the accident were based out of Lee County, that the chief deputy coroner who investigated the decedent’s death did his work in Lee County, and that the records and documents of the fire department that responded to the accident were located in Lee County. Comparing this to the fact that only one of the individual defendants resided in Macon County and that the employer conducted business there, there being no other relevant facts involving Macon County, this Court held that the nexus between Lee County and the case was strong, that the nexus between Macon County and the case was weak, and that the trial court thus had exceeded its discretion in refusing to transfer the case to Lee County.”

Ex parte Autauga Heating & Cooling, 58 So.3d at 750 (discussing Ex parte Indiana Mills) (emphasis added).

In this case, as in Autauga Heating & Cooling and Indiana Mills, the injury occurred in the county to which the transfer is sought. Here, as in Autauga Heating & Cooling and Indiana Mills, no material act or omission occurred in the forum county. As in Indiana Mills, the official investigation of the incident was in the county to which the transfer was sought — here, Lee County. As in those cases, the only material connection with the forum county is a defendant’s residence. To be sure, in this case two defendants reside in the forum county, rather than one. Given the posture of this case, however, that distinction is inconsequential.

As an employee allegedly responsible for supervision of the tellers, the presence of the second Macon County defendant— Sutherland — adds nothing to the equation. The allegedly negligent supervision he provided would have occurred only in Lee County. Moreover, he was added to the action on April 8, 2010, after the January 26, 2010, motion to transfer was orally argued.

It is true that the interest of justice may not be served in granting a motion to transfer made only after the trial court has “spent substantial amounts of time on a lawsuit, and has implicitly developed an understanding of the facts and law relative to the case.” Frazier v. Commercial Credit Equip. Corp., 755 F.Supp. 163, 168 (S.D.Miss.1991). However, a change in the legal landscape that results from the trial court’s failure to rule promptly on a motion to transfer cannot be used by the plaintiff as a rationale for the eventual denial of the motion. See Frazier, 755 F.Supp. at 167 (“the juncture in the case at which the motion to transfer is presented [is] of primary relevance in determining if a transfer of the action will best promote the interests of justice” (emphasis added)).

Thus, Floyd and Unique cannot rely, as they attempt to do, on the fact that Wa-chovia’s motion to transfer was denied only after “[t]he court and parties [had] expended considerable time, effort and expense in preparing this case for trial and on hearing various ... motions,” Respondents’ brief, at 28, including the summary-judgment motions, certain motions to compel discovery, and Wachovia’s motion to strike the jury demand. It appears that none of these activities predated the motion to transfer the case on the basis of the doctrine of forum non conveniens. We are not informed of the amount of time and resources, if any, the trial court expended on this case before the filing of the motion to transfer the case. If considerable judicial resources have now been expended on this case, it is not the fault of Wachovia but is primarily the result of the fact that the ruling on the motion to transfer came 12 months after the motion was filed. Under these circumstances, the nexus between this action and Macon County is not “strong enough to warrant burdening” Macon County with this action.

III. Conclusion

In summary, Wachovia has met its burden of showing that transfer of this action to Lee County is justified in the interest of justice. The trial court exceeded its discretion, therefore, in denying the motion to transfer. Because Wachovia is entitled to a writ of mandamus directing the Macon Circuit Court to grant its motion, we grant the petition and issue the writ.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and STUART, BOLIN, PARKER, SHAW, MAIN, and WISE, JJ., concur.

MURDOCK, J., dissents.

MURDOCK, Justice

(dissenting).

A transfer of the underlying action from Macon County to Lee County based upon the “convenience-of-the-parties-and-witnesses” prong of § 6-3-21.1, Ala.Code 1975, might be justified. Wachovia Bank, N.A., does not ask this Court for relief based upon that prong, however. Instead, it limits itself to a request for relief based upon the “interest-of-justice” prong of § 6-3-21.1.

I acknowledge that the tortious conduct at issue occurred in Lee County and that, in fact, as the main opinion notes, “nothing material to this case transpired in Macon County.” 77 So.3d at 574. Macon County, however, is the county in which two of the individual defendants have their permanent residences. In adopting § 6-3-2(a)(3), Ala.Code 1975, our legislature made a policy determination binding on the courts of this State that, as a general rule, it is enough to establish proper venue of an action against an individual that the county where the action is brought is the county that is the permanent residence of that individual. Rule 82(c), Ala. R. Civ. P., provides that where, as here, several claims or parties have been joined in a suit, the suit may brought in “any county in which any one of the claims could properly have been brought.” Read together, § 6-3-2(a)(3) and Rule 82(c) impose no condition on the bringing of an action against multiple defendants in a county where at least one individual defendant maintains his or her permanent residence, other than that fact.

With this Court’s recent interpretation of the “interest-of-justice” prong of § 6-3-21.1, I believe we largely have negated the intended field of operation of statutory provisions such as § 6-3-2(a)(3). See also § 6 — 3—2(a)(2) (providing for actions on contracts brought against an individual to be commenced in the county where the defendant resides if he or she maintains a permanent residence in that county); § 6-3-7(a)(2) (providing that an action may be brought against a corporation in the county of the corporation’s principal office in this state). In effect, we have substituted a new presumption that an action cannot be tried in a county if the only connection between the lawsuit and the county is that the county is the permanent residence of one or more of the defendants. We now call such a connection a “weak connection” and, as a general rule, require the transfer of the tort action to the county where the “accident” occurred. See Ex parte Autauga Heating & Cooling, LLC, 58 So.3d 745 (Ala.2010):

“Besides the fact that Rogers is resident of Montgomery County, there was no other evidence before the trial court indicating a connection between the case and Montgomery County.
“... This Court sees no need to burden Montgomery County, with its weak connection to the case, with an action that arose in Elmore County simply because the individual defendant resides in Montgomery County and the corporate defendant does some business there.”

58 So.3d at 750 (emphasis added) (also quoting Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 540 (Ala.2008), for the principle that “ ‘ “litigation should be handled in the forum where the injury occurred.”’” 58 So.3d at 748).

In interpreting and applying the “interest-of-justice” prong in this manner, we have, I believe, given that prong far greater meaning and effect than it has historically been understood by the bench and bar to have. Moreover, we have given it an effect inconsistent with the legislative determination that other statutorily prescribed locations for actions under §§ 6-3-2 and 6-3-7 are generally and presumptively appropriate. As I indicated in my special writing in Ex parte Ford Motor Co., 47 So.3d 234 (Ala.2010) (Murdock, J„ concurring in the result), there was insight and wisdom in Justice Hugh Maddox’s opinion for this Court in Ex parte First Family Financial Services, Inc., 718 So.2d 658, 661 (Ala.1998):

“In Ex parte First Family Financial Services, Inc., 718 So.2d 658, 661 (Ala.1998), Justice Maddox, writing for the Court, stated that a change of venue based on forum non conveniens is appropriate only ‘ “ ‘when trial in the chosen forum would “establish ... oppressiveness and vexation to a defendant ... out of all proportion to plaintiffs convenience,” or when the “chosen forum [is] inappropriate because of considerations affecting the court’s own administrative and legal problems.” ’ ” ’ (Quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), quoting in turn Roster v. Lumbermens Mutual Casualty Co., 330 U.S. 518, 524, 67 S.Ct. 828, 91 L.Ed. 1067 (1947).) As Justice Maddox went on to explain, a transfer based on improper venue normally should occur only where the balance of ‘the private- and public-interest factors involved ... weight ] heavily against litigation in the forum the plaintiff selected.’ 718 So.2d at 661.9
“ 9 The views expressed by Justice Maddox on behalf of the Court in First Family Financial Services are consistent with the notion that venue statutes such as § 6-3-7 reflect a legislative determination that the statutorily prescribed locations are generally and presumptively just and appropriate.”

Ford Motor Co., 47 So.3d at 243 (Murdock, J., concurring in the result). See also Ex parte Autauga Heating & Cooling, LLC, 58 So.3d at 752 (Murdock, J., dissenting).

My views as expressed above are a function of what I perceive to be the plain language and effect of the various statutes at issue as given us by our legislature. I have little doubt that these statutes can and have resulted in the placement of lawsuits on occasion in counties that I would think inappropriate. Unless and until the legislature makes some policy choices different than those it has made with the enactment of those statutes, however, I must consider myself constrained by my reading of those statutes.

Finally, I would add that, in my view, the incorrectness of the result achieved here is only compounded by the fact that, in this particular case, litigation has proceeded for a substantial time in the Macon Circuit Court. Although the statement by the federal district court judge in Frazier v. Commercial Credit Equipment Corp., 755 F.Supp. 163, 168 (S.D.Miss.1991), that “the juncture in the case at which the motion to transfer is presented [is] of primary relevance in determining if a transfer of the action will best promote the interests of justice” may or may not correctly reflect Alabama law, my view of this case makes it unnecessary to consider this issue. Moreover, I see no need to go further and suggest, as does the main opinion, that a “change in the legal landscape that results from the trial court’s failure to rule promptly on a motion to transfer,” 77 So.3d at 575, may never be a factor that supports the eventual denial of the motion.

Rehearing Denied Aug. 12, 2011.

      . That argument has been abandoned, and it is now undisputed that venue is not "improper” in Macon County.

      . "This Court notes that the doctrine of forum non conveniens ... does not include the timeliness requirement of Rule 82(d), Ala. R. Civ. P., relating to improper venue.” Ex parte Harper, 934 So.2d 1045, 1048 n. 2 (Ala.2006). See § 6-3-21.1(b) (“The right of a party to move for a change or transfer of venue pursuant to this statute is cumulative and in addition to the rights of a party to move for a change or transfer of venue pursuant to Section 6-3-20, Section 6-3-21 or Alabama Rules of Civil Procedure.”).

      Rehearing Denied Aug. 12, 2011.


author: BOLIN, Justice.

text:
    Ex parte COMPASS BANK d/b/a BBVA Compass and Amy Hovis. (In re Jerome Sirote v. Compass Bank d/b/a BBVA Compass et al.).
    1100870.
    Supreme Court of Alabama.
    Aug. 5, 2011.

      A. Kelly Brennan Bolvig, Adam K. Israel, and Jason B. Tompkins of Balch & Bingham LLP, Birmingham, for petitioners.
    S. Mitchell Howie, Huntsville, for respondent.
   BOLIN, Justice.

Compass Bank d/b/a BBVA Compass and Amy Hovis petition this Court for a writ of mandamus directing the Madison Circuit Court to dismiss an action filed in that court by Jerome Sirote, based on Alabama’s abatement statute, § 6-5-440, Ala.Code 1975.

Facts and Procedural History

On October 5, 2010, Sirote filed a complaint in the federal district court against BBVA Compass, and its employees, Amy Hovis and Lisa D. Williams, alleging breach of contract; breach of fiduciary duty; violations of the Truth in Lending Act, 15 U.S.C. § 1601 et seq. (“TILA”); violations of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq. (“RESPA”); fraud; deceit; and violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. Sirote contended that BBVA Compass, through its employees, Hovis and Williams, forged his name on a deed of trust for property in Tennessee owned by Sirote and his wife and that it also forged his name on an amended trust deed. Both deeds secured promissory notes held by BBVA Compass and executed by Sirote and his wife. Sirote also alleged that BBVA Compass misappropriated and converted millions of dollars in bonds that BBVA Compass was managing for him. Sirote alleged that BBVA Compass improperly processed transactions in his deposit account and misstated material facts related to that account.

The defendants moved to dismiss Si-rote’s complaint. On December 80, 2010, the federal district court entered an order dismissing Sirote’s federal claims with prejudice. With regard to Sirote’s state-law claims, the court stated:

“Jurisdiction over plaintiffs remaining claims — for breach of contract, breach of fiduciary duty, fraud, and deceit under Alabama law (Counts One, Two, Five, and Eight, respectively, of plaintiffs original Complaint, and Counts One, Two, Five, and Six, respectively, of plaintiffs proposed Amended Complaint) — was based upon 28 U.S.C. § 1367, the statute governing supplemental jurisdiction over state law claims. In cases where the court’s jurisdiction is based solely upon a federal question, the district court has discretion to entertain state claims that are ‘supplemental’ to the federal claim. See 28 U.S.C. § 1367(a). The district court may decline to exercise supplemental jurisdiction when:
“‘(1) the claim raises a novel or complex issue of state law,
“ ‘(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
“‘(3) the district court has dismissed all claims over which it has original jurisdiction, or
‘(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.’
28 U.S.C. § 1367(c) (emphasis supplied). ‘[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims.’ Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 7 (1988).
“Here, plaintiffs federal claims have been eliminated. There is no independent basis for this court to assert jurisdiction over plaintiffs state law claims.19 Accordingly, this court will decline supplemental jurisdiction over the remaining state law claims, and will exercise its discretion to dismiss those claims.
" 19 Plaintiff cannot assert federal jurisdiction based on satisfaction of the requirements of the diversity statute, 28 U.S.C. § 1332, because complete diversity of citizenship is not present. See 28 U.S.C. § 1332(a)(l)(re-quiring that, in addition to an amount in controversy exceeding $75,000, the civil action must be between 'citizens of different States.' Plaintiff is a resident of Alabama, as are the individual defendants Amy L. [Hovis] and Lisa D. Williams.... ”

Sirote filed a Rule 59(e), Fed.R.Civ.P., motion to alter, amend, or vacate the judgment, which the federal court denied. On February 11, 2011, Sirote filed a notice of appeal to the United States Court of Appeals for the Eleventh Circuit.

On February 11, 2011, the same day Sirote filed his notice of appeal, Sirote filed a complaint in the Madison Circuit Court against BBVA Compass, Hovis, and Williams, alleging breach of contract, breach of fiduciary duty, fraudulent concealment, accounting for bonds, deprivation of possession of personal property in violation of § 6-5-260, Ala.Code 1975, conversion, money had and received, unjust enrichment, and civil conspiracy. Sirote contended in the state-court action that BBVA Compass, through its employees, Hovis and Williams, forged his name on a deed of trust on property in Tennessee owned by Sirote and his wife and again forged his name on a modification of that deed, both of which secured promissory notes in favor of BBVA Compass executed by Sirote and his wife. Sirote also alleged that BBVA Compass misappropriated and converted millions of dollars in bonds that it was managing for him. Sirote further alleged that BBVA Compass improperly processed transactions in his deposit account and misstated material facts related to that account. According to BBVA Compass, Williams was never properly served; she is not a party to this petition.

BBVA Compass and Hovis moved to dismiss on the ground that Sirote’s complaint violated § 6-5-440, which prohibits a party from prosecuting two actions simultaneously in different courts if the claims alleged in each action arose from the same underlying operative facts. The trial court denied the motion. BBVA Compass and Hovis then filed this petition asking this Court to direct the trial court to dismiss Sirote’s action against them. We grant the petition and issue the writ.

Standard of Review

“[A] writ of mandamus is an extraordinary remedy, which requires the petitioner to demonstrate a clear, legal right to the relief sought, or an abuse of discretion.” Ex parte Palm Harbor Homes, Inc., 798 So.2d 656, 660 (Ala.2001). Mandamus is the appropriate remedy to correct a trial court’s failure to properly apply § 6-5-440. See Ex parte Chapman Nursing Home, Inc., 903 So.2d 813 (Ala.2004); Ex parte Breman Lake View Resort, L.P., 729 So.2d 849, 852 (Ala.1999).

Analysis

Section 6-5-440 provides:

“No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pen-dency of the former is a good defense to the latter if commenced at different times.”

This Court has stated:

“[Section 6-5^140], by its plain language, forbids a party from prosecuting two actions for the ‘same cause’ and against the ‘same party.’ This Court has previously held that an action pending in a federal court falls within the coverage of this Code section:
“ ‘ “The phrase ‘courts of this state,’ as used in § 6-5-440, includes all federal courts located in Alabama. This Court has consistently refused to allow a person to prosecute an action in a state court while another action on the same cause and against the same parties is pending in a federal court in this State.” ’ ”

Ex parte Norfolk Southern Ry., 992 So.2d 1286, 1289 (Ala.2008) (quoting Ex parte University of South Alabama Found., 788 So.2d 161, 164 (Ala.2000), quoting in turn Weaver v. Hood, 577 So.2d 440, 442 (Ala.1991)). The application of § 6-5-440 “is guided by ‘whether a judgment in one suit would be res judicata of the other.’ ” Chiepalich v. Coale, 36 So.3d 1, 3 (Ala.2009) (quoting Sessions v. Jack Cole Co., 276 Ala. 10, 12, 158 So.2d 652, 654-55 (1963)).

“ ‘[A] “cause of action” grows out of the wrongful act, and not the various forms of damages that may flow from the single wrongful act.’ Sessions [v. Jack Cole Co.], 276 Ala. [10,] 12, 158 So.2d [652,] 654 [ (1963) ].
“Plaintiffs state and federal actions arise from the same alleged fact situation. Although plaintiffs state court action was instituted on different theories of recovery, these theories are not different causes of action in the context of the rule against splitting a cause of action. A cause of action may give rise to one or more theories of recovery. It has been recognized that where a single wrong leads to an action under state law and leads to an action under federal law, there is but one wrong and one cause of action. Norman Tobacco & Candy Co. v. Gillette Safety Razor Co., 295 F.2d 362 (5th Cir.1961).”

Terrell v. City of Bessemer, 406 So.2d 337, 339 (Ala.1981).

BBVA Compass and Hovis contend that although Sirote gives different labels to some claims in his complaint filed in the state court, every claim he has made in the federal district court and in the state court is based on the same allegations of wrongdoing. BBVA Compass and Hovis go on to argue that Sirote’s appeal of the dismissal of his federal-court complaint did not lessen the application of § 6-5^440, because an action is deemed pending in federal court so long as a party’s right to appeal has not yet been exhausted or expired. BBVA Compass and Hovis argue that the federal court’s decision to decline to assert supplemental jurisdiction over Si-rote’s state-law claims and to dismiss those claims without prejudice does not mean that Sirote can pursue his state-law claims in state court because if the Court of Appeals for the Eleventh Circuit reverses the judgment of the federal district court, the federal district court will again have jurisdiction over all Sirote’s claims.

Sirote does not dispute that his state-court claims arose out of the same facts as the claims that he has asserted in the federal-court action. Sirote asserts that when he properly filed his notice of appeal to the Eleventh Circuit Court of Appeals, the federal district court was divested of jurisdiction and the federal appellate court now has jurisdiction. Sirote argues that the Court of Appeals for the Eleventh Circuit is not a “court of this state” for the purposes of Alabama’s abatement statute, because, he argues, § 6-5-440 has been interpreted to govern only courts in which suits are “filed” or “prosecuted,” and not appellate courts. Sirote argues that BBVA Compass and Hovis’s argument that, if Sirote wins on appeal, the federal district court will again have jurisdiction over his state-law claims is speculative and does not place a justiciable controversy before the court. He also argues that their argument ignores the abstention doctrine.

This Court has addressed an exception to § 6-5-440. In Terrell, 406 So.2d 337, the plaintiff brought claims under 42 U.S.C. § 1983, along with common-law claims, in the federal court. The federal court declined to entertain the pendent common-law claims on the ground that the different legal principles and possible defenses involved in the federal and common-law counts would create jury confusion. The federal court retained jurisdiction over the plaintiffs claim asserted under 42 U.S.C. § 1983. The plaintiff then brought the common-law claims against the same defendant in the state court, and the defendants moved to dismiss those claims in light of § 6-5-440. The Temll Court recognized that there was one cause of action for the single wrong, even when the wrong leads to actions under both state and federal law. 406 So.2d at 339. The Court in Terrell adopted the position that if “the court in the first action would dearly not have had jurisdiction to entertain the omitted theory or ground (or, having jurisdiction, would dearly have declined to exercise it as a matter of discretion), then a second action in a competent court presenting the omitted theory or ground should not be precluded.” 406 So.2d at 340 (emphasis added). Therefore, the Court carved out an exception to the rule allowing a cause of action for the same wrong against the same party to be pending in only one court at a time. Because the plaintiff could not litigate his state-law claims in the federal court, the Terrell Court held that he “should be afforded an opportunity to pursue his alleged common law theories of recovery in state court.” 406 So.2d at 339.

We have also addressed abatement under § 6-5-440 when an appeal has been filed in a federal appellate court in the earlier filed federal-court action. In L.A. Draper & Son, Inc. v. Wheelabrator-Frye, Inc., 454 So.2d 506 (Ala.1984), the sole issue presented on appeal was whether the filing of an appeal in the federal appeals court of the dismissal of the plaintiffs pendent unfair-competition claim served under § 6-5-440 to abate the plaintiffs subsequent unfair-competition claim and related common-law claim brought in the state court. In L.A. Draper & Son, the plaintiff first filed an action in the federal district court, asserting that the defendants had conspired to destroy the plaintiffs business in violation of federal antitrust law and state unfair-competition laws. The federal district court had jurisdiction of the unfair-competition claim on the basis of pendent jurisdiction. At the close of the plaintiffs case, the court directed a verdict with respect to the federal antitrust claim and dismissed the pendent state-law unfair-competition claim when the defendants stipulated that they would not raise a statute-of-limitations defense (as to the time between the filing of the federal action and the dismissal of the claims) to the plaintiffs unfair-competition claim if an action was filed in the state court. The federal district court issued a final order, and subsequently the plaintiff filed an action in the state court and then appealed the federal district court’s dismissal of the state-law unfair-competition claim.

In L.A. Draper & Son, this Court discussed Terrell and noted that the Court in Terrell did not consider the issue whether the plaintiff could have sought review of the federal court’s decision not to exercise pendent jurisdiction over that plaintiffs state claims. Relying on the Terrell Court’s reasoning that the harm to which § 6-5-440 is directed is to prevent a party from having to defend against two suits in different courts at the same time brought by the same plaintiff on the same cause of action, the Court noted that Terrell was procedurally similar except that the plaintiff in Terrell did not appeal the dismissal of his common-law claims. The plaintiff in L.A. Draper & Son did; therefore, the L.A. Draper & Son Court concluded that it was not clear that the federal court would not entertain the common-law claims. Accordingly, the Court held that the filing of the appeal from the federal district court’s dismissal of the plaintiffs state-law claim served to abate the plaintiffs subsequently filed action in state court. “An action is deemed pending in federal court so long as a party’s right to appeal has not yet been exhausted or expired.” 454 So.2d at 508.

• More recently, in Ex parte J.E. Estes Wood Co., 42 So.3d 104 (Ala.2010), a railroad company filed an action in the federal court after a “controlled burn” by a timber-management company grew out of control and burned a bridge on the railroad company’s property. The railroad company alleged both federal and state-law claims. Two days later, the railroad company filed an action in the state court based on the same underlying facts and sought the same relief under the same theories as it sought in the federal action. Although a motion to dismiss the complaint in the federal court for lack of subject-matter jurisdiction was pending, the defendants moved to dismiss the state-court action pursuant to § 6-5^40. In response to the state-court motions, the railroad company asked the state court to stay the state-court action, which the state court did. The defendants then filed a petition for a writ of mandamus with this Court. While the petition was pending, the federal district court dismissed the railroad company’s action, and, subsequently, the railroad company appealed the dismissal to the United States Court of Appeals for the Eleventh Circuit. At the outset, this Court stated that the dismissal of the earlier federal action did not render § 6-5-440 inapplicable during an appeal from that dismissal. It went on to hold that a stay of the state-court action is not an abatement and that a stay is not an option that can be exercised at the discretion of the court.

“[T]he principle codified by [§ 6-5-440] ‘is founded upon the policy of discouraging a multiplicity of suits — of protecting the defendant from oppression, [and] from the grievance of double vexation for the same cause or thing.’ Foster v. Napier, 73 Ala. 595, 606 (1883). ‘[W]hen a defendant is twice impleaded by the same plaintiff, for the same thing, the oppression and vexation is not matter of fact; it is a conclusion of law, and is not dependent upon an inquiry into the actual circumstances of the two cases.’ 73 Ala. at 603.”

42 So.3d at 111. In a footnote in J.E. Estes Wood, this Court stated:

“Where the plaintiffs first-filed action is in federal court seeking relief on both federal claims and state-law claims but the federal court has declined to exercise its pendent jurisdiction over the state-law claims, the plaintiff may then pursue the state-law claims in state court without violating § 6-5-440. Terrell v. City of Bessemer, 406 So.2d 337 (Ala.1981). However, the dismissal of an earlier filed federal action does not render § 6-5-440 inapplicable during the pendency of an appeal. L.A. Draper & Son, Inc. v. Wheelabrator-Frye, Inc., 454 So.2d 506 (Ala.1984).”

42 So.3d at 111 n. 1.

In the present case, the federal district court dismissed Sirote’s state-law claims without prejudice, based on its lack of supplemental jurisdiction because it had dismissed Sirote’s federal-law claims. This case is distinguishable from Ten-ell, where the dismissal of the state-law claims was based on the federal court’s discretionary authority to refuse to entertain state-law claims. The plaintiff in Terrell was no longer able to pursue his state-law claim in the federal court, and the plaintiff in Ten-ell did not seek an appeal of that decision. Accordingly, the Court created an exception to the abatement statute so that the plaintiff there could pursue his state-law claims. Here, Sirote has appealed the federal district court’s dismissal of his state-law claims.

We note that Rule 3, Fed. R.App. P., provides that a notice of appeal must be filed with the district court clerk. Rule 3(c), Fed. R.App. P., provides that the notice of appeal must designate the judgment, order, or part thereof being appealed. In the present case, Sirote’s notice of appeal in the federal court provides that he is appealing from the “order dismissing all of plaintiffs claim (his federal claims of TILA and RE SPA violations with prejudice and his state law claims without prejudice) entered in this action.” Clearly, Sirote has appealed from the dismissal of both his federal-law claims and his state-law claims. Cf. Guy v. Lexington-Fayette Urban Cnty. Gov’t, 57 Fed.Appx. 217, 223 (6th Cir.2003) (not selected for publication in the Federal Reporter) (“Although ‘the law is well settled that an appeal from a final judgment draws into question all pri- or non-final rulings and orders,’ McLaurin v. Fischer, 768 F.2d 98, 101 (6th Cir.1985), if an appellant ‘chooses to designate specific determinations in his notice of appeal— rather than simply appealing from the entire judgment — only the specified issues may be raised on appeal.’ Id. at 102; see also Crawford v. Roane, 53 F.3d 750, 752 (6th Cir.1995). Therefore, where ‘a party intentionally does not appeal a part of judgment, he cannot, after the time for filing has elapsed, change his mind and appeal from that part of the judgment.’ Bach v. Coughlin, 508 F.2d 303, 307 (7th Cir.1974); see also Wilson v. Firestone Tire & Rubber Co., 932 F.2d 510, 516 (6th Cir.1991) (holding that the plaintiff failed to preserve any state law contract/promissory estoppel claim for appeal where, in his notice of appeal, the plaintiff failed to raise dismissal of state law claims as matters for appeal).”).

In Tiftarea Shopper, Inc. v. Georgia Shopper, Inc., 786 F.2d 1115 (11th Cir.1986), the United States Court of Appeals for the Eleventh Circuit addressed the appeal of the dismissal of a plaintiffs federal and state-law claims. That court stated: “The district court dismissed the pendant state claims after it had dismissed the federal claim on the ground that absent the federal claim it had no subject matter jurisdiction over the state claims. Because we find that the federal claim should not have been dismissed, we must reverse on the state law claims.” 786 F.2d at 1118. Here, the result of an appellate court’s reversal in Sirote’s federal action will be the reinstatement of all of his claims.

The exception set out in Terrell applies to allow a second action on the same cause when the court in the first action would clearly not have had jurisdiction to entertain the omitted theory or ground or, having jurisdiction, would clearly have declined to exercise jurisdiction as a matter of discretion. In this case, it remains unclear whether the federal district court will entertain Sirote’s state-law claims, which will be reinstated if Sirote succeeds on appeal. Therefore, the Terrell exception does not apply.

Additionally, this Court in both L.A. Draper & Son and J.E. Estes Wood held that § 6-5-440 will operate to bar a subsequent state-court action if an appeal is pending in the first-filed federal-court action. In other words, for purposes of abatement, a case is pending until it has been finally adjudged, which would include the resolution of a timely appeal.

Sirote argues that this case presents a nonjusticiable controversy because, he argues, the Eleventh Circuit Court of Appeals may not reverse the decision of the district court, and therefore he contends that the controversy is an anticipated controversy and not a justiciable one. We disagree. Sirote’s appeal from the judgment of the federal district court is pending. If the federal appeals court reverses the district court’s decision, then all Si-rote’s claims will be before the federal district court. If the federal appeals court affirms the district court’s decision, then Sirote may pursue his state-law claims. It is the pendency of the appeal that makes this controversy justiciable, and it is currently being litigated in both the federal and the state courts.

Sirote argues that if the federal appeals court reverses the decision of the federal district court and his state-law claims are pending in the state court, then the federal district court would likely decline to decide the case based on the abstention doctrine. In Ex parte Norfolk Southern Railway, 992 So.2d 1286 (Ala.2008), this Court addressed the abstention doctrine discussed in Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Under the Colorado River abstention doctrine, a federal court stays an action when there is an ongoing parallel action in a state court. In Norfolk Southern, the train conductor was injured in a collision between a train he was operating and a tractor-trailer truck. The conductor filed an action in the state court against the railroad company under the Federal Employment Liability Act and against the truck driver, the truck driver’s employer, and the owner of the truck, alleging negligence and wantonness. Subsequently, the railroad company filed a complaint in the federal court against the truck driver, the driver’s employer, and the owner of the truck, alleging negligence and wantonness.

In the state-court action, the truck driver, the driver’s employer, and the owner of the truck filed an answer and filed what they asserted were “cross-claims” against the railroad company, the conductor, and the train engineer. The railroad company filed a motion in the state court contending that § 6-5-440 required the trial court to dismiss the “cross-claims” because the federal-court action had been filed and took precedence over the state-court action. The truck driver, the truck owner, and the employer moved the federal court to stay the case under Colorado River. The federal court found that Colorado River required it to abstain from proceeding with the case, and it entered a stay. The state court denied the railroad company’s motion to dismiss, and the railroad company petitioned this Court for a writ of mandamus. While the petition was pending, the railroad company appealed the district court’s order entering a stay, and the federal appeals court affirmed the decision of the district court.

This Court held:

“In the instant case, the federal district court exercised its power under Colorado River to stay the action pending in that court. [The railroad company] attempted, but failed, to have the Eleventh Circuit Court of Appeals dissolve that stay. For all practical purposes, the federal district court has declined to hear [the railroad company’s] claims. If this Court were to halt the Clarke County action pursuant to § 6-5-440, then this case would present the absurd result the Terrell exception was crafted to prevent: the respondents would have no forum in which to present their claims. We thus hold that, when a federal court abstains from hearing a case under the Colorado River doctrine, that case is not considered as an action being prosecuted, for purposes of § 6-5-440.”

992 So.2d at 1291. Accordingly, we denied the petition.

In the present case, the federal district court ruled against Smote and dismissed his federal-law claims with prejudice and dismissed his state-law claims without prejudice. Sirote has appealed the decision to the Eleventh Circuit Court of Appeals. Sirote’s argument is that if the Eleventh Circuit Court of Appeals reverses the judgment of the district court then the district court would be required under the factors set out in Colorado River to stay or to dismiss the federal-court action. Sirote presents nothing to support his argument that the federal district court will be required to stay or dismiss the federal-court action following his appeal while his subsequently filed state-court action is pending, because the abstention doctrine discussed in Colorado River is discretionary. Also, we note that Sirote first filed his claims arising out of these facts in the federal court, and he has timely appealed that court’s decision to the federal appeals court. This indicates Si-rote’s desire to litigate his claims in the federal court. As discussed above, the federal district court will retain jurisdiction over Sirote’s state-law claims if the Eleventh Circuit Court of Appeals reverses its decision. To require BBVA Compass and Hovis to defend claims in the state court while also defending claims arising out of the same facts in the federal court is prohibited under § 6-5-440.

Conclusion

Sirote’s pending appeal in the federal court abates his subsequently filed state-court action against BBVA Compass and Hovis arising out of the same facts. Accordingly, BBVA Compass and Hovis have shown that they have a clear legal right under § 6-5^440 to a dismissal of Sirote’s claims pending in the state court. We grant the petition and issue the writ.

PETITION GRANTED; WRIT ISSUED.

WOODALL, MURDOCK, SHAW, and MAIN, JJ., concur.