text:
    Darwin WELLS Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00752-COA.
    Court of Appeals of Mississippi.
    Oct. 18, 2011.

      Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before IRVING, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Darwin Wells Jr. was indicted for the crime of capital murder in violation of Mississippi Code Annotated section 97-3-19(2)(e) (Rev.2006). Following the denial of Wells’s change-of-venue motion, a trial was held in the Jackson County Circuit Court. Wells was convicted of deliberate-design murder and sentenced to life in the custody of the Mississippi Department of Corrections (MDOC). Wells filed a motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the trial court denied. Aggrieved, Wells appeals raising the following issues as error: (1) whether he was denied the right to a fair trial when the trial court denied a change of venue and (2) whether he was irreparably and unfairly prejudiced when character evidence of other wrongs, acts, or other unrelated crimes was discussed in front of the jury. Finding no error, we affirm.

FACTS

¶ 2. On October 23, 2008, Michael and Linda Porter began traveling from Forrest County to Jackson County to watch Linda’s grandson play in a football game. Michael and Linda traveled down Highway 49, took Interstate 10, and ended up on Highway 63. While traveling down Highway 63, Michael and Linda decided to stop at a Conoco station and ask for directions to the football stadium. Michael pulled into the Conoco station, got out of the vehicle, and began to walk toward the service station. Linda testified that she noticed three young African American men standing in front of her vehicle. Linda testified she observed that one of the men had a white towel draped over his head. Linda further testified that as Michael was returning to the vehicle, two of the men attacked him. Linda stated that the man with the white towel on his head was not involved in the struggle at that time. Linda testified that Michael finally broke free of the men, entered his car, and shut the door. Then, Linda testified she saw the man with the white towel on his head walking toward the car. Linda stated that she saw him pull out a gun and shoot Michael. Linda testified that because Michael had the car in gear, the car shot then forward down the road after he was shot. Linda testified she attempted to manage the car, eventually running the vehicle into a ditch. She then ran to a house and sought help. Ultimately, Michael died from his injuries.

¶ 3. On February 6, 2009, Wells was indicted for the crime of capital murder in violation of section 97-3-19(2)(e). On September 17, 2009, Wells filed a motion for change of venue arguing: “The matters involved in this case have been given such extensive publicity through the newspapers, broadcast media, and other forms of communication operating within this County, and in a manner so prejudicial to his interests, that a fair trial by an impartial and unbiased jury cannot be had in this County.” On October 2, 2009, after a hearing on Wells’s motion for change of venue, the trial court reset the hearing for October 5, 2009, with the intentions of summoning a number of jurors from the jury impaneled for trial that morning to inquire as to their opinions and their opinions as to the feelings of the community, if any, in regard to the ability of the defendant to obtain a fair trial in Jackson County. After randomly selecting ten jurors from that day’s jury panel list and questioning the jurors accordingly, the trial court denied Wells’s motion for change of venue.

¶ 4. The trial commenced on October 26, 2009. On the morning of trial, Wells renewed his motion for change of venue, introducing two newspaper articles from The Mississippi Press and The Sun Herald dated October 25 and 26, 2009, to support his motion. Wells also advised the court that the WLOX television station covered the story on the same dates. Again, the trial court denied the renewed motion, subject to renewal later by counsel. The trial court conducted individual voir dire on the issue of media coverage. At the conclusion of the voir dire, Wells introduced additional newspaper articles from The Mississippi Press and The Sun Herald, both dated October 27, 2009, regarding Wells’s trial. Wells then renewed his continuing motion for a change of venue, which the trial court denied. At the conclusion of the trial, the jury convicted Wells of deliberate-design murder. The trial court sentenced Wells to life in the custody of the MDOC. On November 9, 2009, in response to defense counsel’s ore tenus motion for an extension of time within which to file a new trial motion, the trial court granted the motion. On December 9, 2009, Wells filed a motion for a JNOV or new trial. After a hearing on April 9, 2010, the trial court entered an order denying Wells’s post-trial motion. Wells filed his notice of appeal on May 6, 2010.

JURISDICTION

¶ 5. Before we consider Wells’s claims, we must first address the issue of whether this Court possesses the authority to consider today’s appeal due to the trial court’s order granting an extension of time for defense counsel to file a motion for a new trial. Although the State does not raise the issue of appellate jurisdiction, we must analyze this issue to assure that this Court has jurisdiction. See Boss v. State, 16 So.3d 47, 52 (¶6) (Miss.Ct.App.2009). As to the issue of jurisdiction, this Court has stated:

Rule 4(e) of the Mississippi Rules of Appellate Procedure instructs that a criminal defendant who makes a “timely motion” for a judgment of acquittal notwithstanding the verdict or a motion for new trial, under the Uniform Rules of Circuit and County Court Practice, has thirty days from the entry of the order denying such motion to file his notice of appeal. M.R.A.P. 4(e). In order for the time for notice of appeal to be tolled, the post-trial motion for a new trial must be filed within ten days of the entry of the judgment or order from which appeal is taken. Williams v. State, 4 So.3d 388, 391 (¶ 8) (Miss.Ct.App.2009); see also Rogers v. State, 829 So.2d 1287, 1288 (¶ 4) (Miss.Ct.App.2002) (under Rule 10.05 of the Uniform Rules of Circuit and County Court, a motion for a new trial must be filed within ten days of the entry of judgment). While there is no express provision in the Uniform Rules of Circuit and County Court regarding the filing of a motion for a JNOV, the Mississippi Supreme Court has found that a motion for a JNOV, as it relates to a criminal case, is untimely where filed beyond the ten-day limit for a motion for new trial and beyond the term of the court. McGraw v. State, 688 So.2d 764, 770 (Miss.1997).

Id.

¶ 6. In the present case, a review of the record shows that Wells was convicted of deliberate-design murder on October 29, 2009. The trial court filed its sentencing order on October 30, 2009. On November 9, 2009, in response to defense counsel’s timely ore tenus motion for an extension of time, the trial court entered an order extending the time in which Wells must file his motion for a new trial to thirty days from November 9, 2009. On December 9, 2009, defense counsel filed a JNOV/new trial motion. After a hearing, the trial court denied the motion on April 9, 2010. Wells’s notice of appeal was filed on May 6, 2010.

¶ 7. “[W]e find no authority that the circuit court has any discretion to extend time limits for filing a motion for a JNOV or for a new trial. As previously stated, Rule 10.05 requires that a motion for a new trial must be made within ten days of the judgment, and in the case of a motion for JNOV, the motion must be made either within the ten days or by the end of the term of court.” Ross, 16 So.3d at 53 (¶ 7). Defense counsel filed Wells’s JNOV/new trial motion on December 9, 2009, which was past the required time period but within the extended period granted by the trial court. Because defense counsel untimely filed a post-trial motion, the thirty-day requirement for filing his notice of appeal began on the date of imposition of sentence, October 30, 2009. See M.R.A.P. 4(e). Wells’s notice of appeal was filed on May 6, 2010. The notice of appeal was not timely filed in accordance with Rule 4(e); however, we acknowledge that defense counsel filed his post-trial motion within the extended time granted by the trial court and filed his notice of appeal within thirty days of the trial court’s denial of his post-trial motion.

¶ 8. This Court previously has provided:

[U]nder Rule 2(c) of the Mississippi Rules of Appellate Procedure, this Court may suspend the rules in the interest of expediting decision, or for other good cause shown, in cases where the defendant who is convicted, “ ‘through no fault of his own, is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court.’ ” Dorsey v. State, 986 So.2d 1080, 1084 (¶ 12) (Miss.Ct.App.2008) (citation omitted). The Mississippi Supreme Court has stated that: “We may suspend Rules 2 and 4 ‘when justice demands’ to allow an out-of-time appeal in criminal cases.” McGruder v. State, 886 So.2d 1, 2 (¶ 4) (Miss.2003) (citing Fair v. State, 571 So.2d 965, 966 (Miss.1990)).

Ross, 16 So.3d at 53 (¶ 8). In light of the foregoing, jurisprudence, and defense counsel’s reliance upon the trial court’s order of extension, we will address Wells’s assignments of error raised on appeal in the interests of justice.

DISCUSSION

I. CHANGE OF VENUE

¶ 9. Wells argues the trial court abused its discretion by not granting his requests for a change of venue. Wells contends that due to the large circulation of newspapers and television station broadcasts, a large percentage of the citizens in Jackson County were directly exposed to the prejudicial articles and reporting involving his case. Further, Wells asserts that “[w]hen it is doubtful that a fair and impartial jury can be obtained in the county where a homicide has been committed, an accused on trial for his life ‘is but asking for his rights when he requests a change of venue.’ ” Fisher v. State, 481 So.2d 203, 216 (Miss.1985) (quoting Johnson v. State, 476 So.2d 1195, 1210 (Miss.1985)). In response, the State argues the trial court took every effort and precaution to ensure Wells received a fair trial by an impartial jury. Specifically, the State asserts the trial court repeatedly reviewed and thoroughly addressed the issue pretrial and conducted an individualized voir dire regarding pretrial publicity as to the potential jurors’ knowledge of the facts and their ability to be unbiased. The State contends the trial court also reviewed the issue post-trial when ruling upon Wells’s post-trial motion.

¶ 10. “The decision to grant or deny a motion for change of venue is within the discretion of the trial judge.” McCune v. State, 989 So.2d 310, 316 (¶ 11) (Miss.2008). Appellate courts “will not disturb the ruling of the lower court where the trial judge did not abuse his discretion.” Id.

¶ 11. In McCune, the Mississippi Supreme Court spoke to the issue of change of venue. The McCune court stated:

In King [v. State, 960 So.2d 413, 429 (¶ 25) (Miss.2007) ], [we] noted that it had:
thoroughly addressed the requirements for change of venue in Howell v. State, 860 So.2d 704 (Miss.2003):
The right to a fair trial by an impartial jury is guaranteed by both the federal and state constitutions. Johnson v. State, 476 So.2d 1195, 1208 (Miss.1985) (citing U.S. Const. Amend. VI and Miss. Const, art. 3, § 26). “The accused has a right to a change of venue when it is doubtful that an impartial jury can be obtained.” Davis v. State, 767 So.2d 986, 993 (Miss.2000) [ (]citing White v. State, 495 So.2d 1346, 1348 (Miss.1986)[) ] “Upon proper application, there arises a presumption that such sentiment exists; and, the state then bears the burden of rebutting that presumption.” Johnson, 476 So.2d at 1211.
[We] enumerated “certain elements which, when present would serve as an indicator to the trial court as to when the presumption is irrebuta-ble.” White, 495 So.2d at 1349. The elements are as follows:
(1) capital cases based on considerations of a heightened standard of review;
(2) crowds threatening violence toward the accused;
(3) an inordinate amount of media coverage, particularly in cases of:
(a) serious crimes against influential families;
(b) serious crimes against public officials;
(c) serial crimes;
(d) crimes committed by a black defendant upon a white victim;
(e) where there is an inexperienced trial counsel.
Id.; Davis, 767 So.2d at 993-94.
Howell, 860 So.2d at 719.
King, 960 So.2d at 429-30 (emphasis added). Furthermore, “the State can rebut the presumption that the defendant could not receive a fair trial by proving that the trial court impaneled an impartial jury.” Id. at 431 (citing Swann v. State, 806 So.2d 1111, 1116 [ (¶ 19) ] (Miss.2002)).

Id. at 316-17 (¶ 12).

¶ 12. After reviewing the record, we find no evidence indicating the trial court erred in finding that the jurors were fair and impartial. The record shows that after Wells filed his motion for a change of venue, the trial court held a pretrial hearing where the court randomly selected ten jurors of a jury pool to ascertain the impact, if any, of pretrial publicity upon potential jurors. After questioning the jurors as to their knowledge of Wells’s case, the trial court denied Wells’s motion for a change of venue. In denying Wells’s motion, the trial court stated:

... I heard nothing from any of the witnesses that would indicate to me that opinions have been formed in such a manner that would deprive the defendant of a fair trial regardless of what the evidence may show. Nor do I find that there exists any rampant or widely held hostile view of the defendant himself personally or any of the young men involved in this particular incident.
... The question is whether I’m confident that the rights of the defendant may be prejudiced by selecting a jury here in Jackson County, and the question is whether there has been any prejudgment, whether any prejudgment has occurred or any opinions formed that would deprive the defendant of a fair trial. I find there is no evidence of any of that. The motion to change venue, I will deny.

The record further shows that the trial court again considered Wells’s renewed motion for change of venue at the beginning of trial, and the trial court again denied the motion.

¶ 13. With respect to the renewed motion at the beginning of trial, the record reflects that the trial court conducted an individual voir dire at the beginning of trial on the issue of media coverage. At the conclusion of the individual voir dire, Wells renewed his change-of-venue motion, and the trial court denied the motion, as previously explained herein. In denying the motion, the trial court’s findings reflect that the court applied a heightened standard of review of its consideration of the motion since the case was a capital case. The trial court then reviewed the motion in light of the factors to be considered by trial courts in determining whether a change of venue should be granted in order to ensure a fair trial due to pretrial publicity, and the trial court acknowledged the four newspaper articles furnished for the record as exhibits. After considering all of these matters pertinent to the motion, the trial court concluded that an atmosphere of fairness existed and that any jury verdict would be met with fairness in the community. The trial court failed to find that the media coverage or conversation in the community provided a basis, standing alone, to prevent any juror from sitting on the case. The trial court stated that an overwhelming majority of the potential jurors indicated that they could be impartial, and the court found Wells could receive a fair trial. The trial court stated that Wells’s motion for a change of venue should be denied on the grounds of publicity, inordinate publicity, or public hostility toward any of the defendants, and in particular, Wells.

¶ 14. Lastly, the trial court considered the venue issue again post-trial at the hearing on Wells’s JNOY/new trial motion. In denying Wells’s motion for a JNOV/new trial, the trial court again stated:

In regard to the new trial and issues on appeal, I can imagine that much scrutiny will be given to the change of venue processes. As I recall, motion was heard prior to trial. Random citizens selected from a jury pool were brought in and, based upon their knowledge of the case and what they knew about it, the Court overruled the motion at that time and undertook an extensive and thorough voir dire of the jurors during the jury selection process and was as thorough as possible. And there is no doubt in my mind that the fourteen jurors, I believe, that were seated were fair and impartial, and I think the verdict they rendered obviously reflected that, beyond any doubt in my mind. So, for those reasons, your motion will be denied.

¶ 15. The Mississippi Supreme Court has held that “a motion for a change of venue is not automatically granted in a capital case and is largely a matter within the sound discretion of the trial court.” Welde v. State, 3 So.3d 113, 118 (¶22) (Miss.2009) (quoting Davis v. State, 767 So.2d 986, 993 (¶ 15) (Miss.2000)). As evidenced above, the trial court thoroughly reviewed Wells’s requests for a change of venue and ultimately determined that all jurors seated were fair and impartial. After reviewing the record, we find no evidence to the contrary. Accordingly, we find no abuse of discretion in the trial court’s denial of Wells’s motion for change of venue. See McCune, 989 So.2d at 316 (¶ 11). This issue is without merit.

II. PAST ACTS

¶ 16. During the direct examination of Officer Terrance Gray, of the Moss Point Police Department, Officer Gray testified that he assisted in the investigation of the shooting that occurred at the Cono-co station on October 23, 2008. Officer Gray testified that he traveled to Wells’s residence, and upon arrival, he received permission from Wells’s grandmother, Addie Wells, to take Wells to the police station for questioning. Officer Gray testified that as he was driving Wells to the police station, Wells stated, “Officer, I don’t know why people bringing my name up in this murder. They hate me because of my past.” When the court recessed for lunch, defense counsel objected to the comment as to Wells’s past being allowed in front of the jury and moved for a mistrial.

¶ 17. The trial court denied Wells’s motion, explaining that the motion was untimely, as no contemporaneous objection was made at the time when the Court could have addressed the situation, and second, Wells’s statement referenced by Officer Gray was “imprecise, unspecific, and certainly ambiguous.” The trial court also offered to direct the jury to disregard the statement, but defense counsel declined the offer. See January v. State, 928 So.2d 211, 214 (¶ 15) (Miss.Ct.App.2006) (“Our supreme court has rejected the argument that a defendant is entitled to a mistrial when he refuses the court’s offer of a limiting instruction.”).

¶ 18. On appeal, Wells argues that the trial court improperly admitted into evidence testimony regarding his prior bad acts by Officer Gray’s testimony that Wells had stated: “They hate me because of my past.” Wells argues that the reference to his past acts failed to pass the analysis required by Mississippi Rules of Evidence 403 and 404(b). Further, Wells argues that a possibility existed that the jury improperly inferred that Wells “committed the crime for which he [was] on trial because he is a person who has displayed criminal propensities in the past[,]” see Watts v. State, 635 So.2d 1364, 1368 (Miss.1994); thus, he argues that this Court should reverse the trial court’s judgment and remand the case for a new trial.

¶ 19. In response, the State argues that neither a Rule 403 balancing test nor an analysis pursuant to Rule 404(b) applied because not one bad act or wrong was enunciated or elicited by the officer’s testimony revealing Wells’s statement that “They hate me because of my past.” The testimony reflects that the remark was an ambiguous assertion containing no reference to any particular conduct, incident, past bad act, or other particular experience with the “people” referred to in his remark, law enforcement, or others in the community. Further, the State asserts that the trial court offered to instruct the jury to disregard the statement, but Wells chose to forego the option. See Stone v. State, 867 So.2d 1032, 1035 (¶¶ 11-12) (Miss.Ct.App.2003). The State contends that the court having made the offer and the defense “[h]aving declined the offer, defense counsel cannot now claim error.” Jones v. State, 481 So.2d 798, 802 (Miss. 1985). The State also argues that if Wells had offered a contemporaneous objection to the statement, the trial court could have immediately addressed the concerns of the defense. The State nonetheless asserts that no corrective action or limiting instruction was necessary despite any concerns alleged by the defense.

¶ 20. “We review the admission or exclusion of evidence under an abuse of discretion standard of review.” Madden v. State, 42 So.3d 566, 572 (¶27) (Miss.Ct.App.2010) (citing Jones v. State, 904 So.2d 149, 152 (¶ 7) (Miss.2005)). Additionally, we recognize that we review a trial court’s denial of a motion for mistrial under an abuse-of-discretion standard of review. Keys v. State, 909 So.2d 757, 763 (¶ 14) (Miss.Ct.App.2005) (citation omitted). In addressing this issue, we turn to precedent for guidance.

¶ 21. In Hancock v. State, 964 So.2d 1167, 1179 (¶¶ 26-27) (Miss.Ct.App.2007), this Court affirmed the trial court’s finding that a witness’s testimony, that the defendant, Don Frederick Hancock Jr., told him that he had gotten his experience robbing banks from his “prior record,” failed to constitute error. This Court stated that the reference to Hancock’s “prior record” contained no reference to any specific pri- or convictions or crimes and was ambiguous at best. Id. at (¶ 27). Furthermore, we found that where the testimony briefly referred to another crime, and the testimony was not purposefully elicited to show the defendant’s character, no reversible error occurs. Id. (citing Hobson v. State, 730 So.2d 20, 24 (¶ 10) (Miss.1998)).

¶ 22. After reviewing the record in the present case, we similarly find no abuse of discretion by the trial court in allowing the testimony at issue into evidence. See Madden, 42 So.3d at 572 (¶ 27); Keys, 909 So.2d at 763 (¶ 14). Likewise, we find no abuse of discretion in the trial court’s determination that Officer Gray’s testimony, as to Wells’s statement about people not liking him because of his past, constituted an unspecific and ambiguous remark. See Hancock, 964 So.2d at 1179 (¶¶ 26-27); Stone, 867 So.2d at 1035 (¶¶ 11-12). This issue is without merit.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY OF CONVICTION OF DELIBERATE-DESIGN MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ., CONCUR.

      . Michael was driving, and Linda was in the passenger seat of the vehicle.

      . On October 2, 2009, Wells filed two affidavits in support of his motion for change of venue.

      . In the order, the trial judge stated that "the time within which the [defendant must file a [mjotion for a [n]ew [tjrial herein is hereby extended to 30 days from this date[,]” November 9, 2009.

      . Further, defense counsel filed the JNOV/ new trial motion outside of the term of court, as the October 2009 term of the Jackson County Circuit Court began on the first Monday of October, October 5, 2009, and ran for eight weeks. See State of Mississippi Judiciary Directory and Court Calendar (2009).

      . M.R.A.P. 4(e) provides:
      If a defendant makes a timely motion under the Uniform Rules of Circuit and County Court Practice (1) for judgment of acquittal notwithstanding the verdict of the jury, or (2) for a new trial under Rule 10.05, the time for appeal for all parties shall run from the entry of the order denying such motion. Notwithstanding anything in this rule to the contrary, in criminal cases the 30 day period shall run from the date of the denial of any motion contemplated by this subparagraph, or from the date of imposition of sentence, whichever occurs later. A notice of appeal filed after the court announces a decision sentence, or order but before it disposes of any of the above motions, is ineffective until the date of the entry of the order disposing of the last such motion outstanding, or until the date of the entry of the judgment of conviction, whichever is later. Notwithstanding the provisions of Appellate Rule 3(c), a valid notice of appeal is effective to appeal from an order disposing of any of the above motions.

      . “We note that, in a civil case, this Court has no authority to suspend the rules regarding the timely filing of a notice of appeal. We would, therefore, caution counsel not to file requests for extensions of time, which affect the timeliness of appeals, without determining whether the rules authorize the trial judge to grant those requests.” Ross, 16 So.3d at 53 (¶ 8).

      . Additionally:
      [I]n cases where there has been pretrial publicity, the trial judge looks at two factors when evaluating the request for a change of venue. Holland v. State, 705 So.2d 307, 336 (Miss.1997). "First is the level of adverse publicity, both in extent of coverage and its inflammatory nature. Second is the extent of the effect the publicity had upon the venire persons in the case.” Id.

        McCune, 989 So.2d at 317 (¶ 12) (citing Gavin v. State, 785 So.2d 1088, 1095 (Miss.Ct.App.2001)).

      . Wells's attorney asserted at the pretrial hearing that Wells was fifteen years old at the time of the offense.

      . Wells filed a pretrial motion to suppress his statements made to law-enforcement officers, which was denied by the trial court. Wells also filed a motion in limine to exclude evidence of his prior bad acts. Specifically, Wells objected to the testimony of Kevin Williams, a school safety officer, who was expected to testify to information regarding Wells being in alternative school. The State explained that Williams received a tip that Wells was the shooter in the incident and relayed the information to the police. The State then conceded that while the police could testify that they received a tip, they could not testify as to the contents of the tip. The State said that they were not planning on calling Williams as a witness due to his testimony being hearsay. The court sustained the motion to the extent that it constituted hearsay.


source: Caselaw Access Project

author: BOLIN, Justice. MURDOCK, Justice

license: Public Domain

text:
    Ex parte Gilbert Lee LITTRELL. (In re Gilbert Lee Littrell et al. v. Doris Thrasher, individually and as the parent and next friend of Gary Marcus Matlock, and RLI Insurance Company).
    1100344.
    Supreme Court of Alabama.
    April 1, 2011.
    Rehearing Denied June 17, 2011.

      Terry B. Rochester of Harold G. Peck & Associates, Florence, for petitioner.
    Bert P. Taylor of Taylor Ritter, P.C., Orange Beach, for respondent Gary Marcus Matlock.
   BOLIN, Justice.

Gilbert Lee Littrell petitions this Court for a writ of mandamus directing the Colbert Circuit Court to vacate its order of November 10, 2010, denying Littrell’s motion to require RLI Insurance Company, the underinsured-motorist carrier, to be bound by its decision to opt out of participation in the trial of this case and to prevent any appearance and participation by RLI’s counsel Bert P. Taylor as additional counsel for the defendant, Doris Thrasher, or, alternatively, to allow Litt-rell in the trial of this case to reveal Taylor’s representation of RLI, RLI’s identity, and the reason for RLI’s involvement in the case. We grant the petition and issue the writ.

Littrell was employed by Edwards Oil Company of Lawrenceburg, Inc. On May 26, 2005, a vehicle being operated by Litt-rell was involved in a motor-vehicle accident with a vehicle being operated by Mat-lock, who was a minor at the time of the accident. Subsequently, Littrell sued Thrasher, individually and as the parent and next friend of Gary Marcus Matlock, and RLI, the underinsured-motorist carrier for Edwards Oil.

On February 12, 2007, RLI gave notice that it was exercising its right to reject a settlement offer made by Thrasher of $25,000, the limits of a liability policy issued by State Farm Mutual Automobile Insurance Company; that it was maintaining its subrogation interests against Thrasher; and that it was advancing the policy limits of $25,000 in compliance with the procedure set forth in Lambert v. State Farm Mutual Automobile Insurance Co., 576 So.2d 160 (Ala.1991). RLI also elected to “opt out” of the case and withdraw from active participation in the litigation of the case pursuant to Lowe v. Nationwide Insurance Co., 521 So.2d 1309 (Ala.1988). RLI stipulated that it would be bound by any judgment against Thrasher in excess of Thrasher’s policy limits up to the limits of coverage available to Littrell under the underinsured-motorist policy.

At all times during prosecution of this action, RLI was represented by LaBella Alvis of Christian & Small, LLP. However, on April 23, 2009, Bert P. Taylor of Taylor Ritter, P.C., entered an appearance on behalf of RLI as an additional attorney of record. Thereafter, Taylor participated in the depositions of Littrell, Matlock, and Dr. Johnny Stephen Howell, Littrell’s treating physician. In addition to participating in discovery, Taylor also enlisted expert witnesses on behalf of RLI.

On June 21, 2010, Taylor entered an appearance as cocounsel of record on behalf of the defendant Thrasher. Thrasher was already being represented by counsel apparently provided by her liability insurer State Farm. On June 23, 2010, Littrell objected to Taylor’s notice of appearance as cocounsel of record for Thrasher, arguing that Taylor, as counsel of record for RLI, is precluded from participating in the trial of this case because RLI had chosen to opt out and to withdraw from active participation in the case pursuant to Lowe, supra. Littrell requested that the trial court deny any appearance or participation by Taylor as counsel for Thrasher in the trial of this matter and require RLI to be bound by its previous decision to opt out.

On June 29, 2010, Taylor moved the trial court to allow him to withdraw as counsel of record for RLI. Littrell states that Taylor is not being compensated by Thrasher or her insurer and, according to Littrell, is still employed by RLI. On November 10, 2010, the trial court entered an order denying Littrell’s request to disqualify Taylor from participating in this matter as Thrasher’s counsel of record. This timely petition for a writ of mandamus followed.

Standard of Review

This Court has stated:

“ ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ”

Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala.2003) (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)). In reviewing a trial court’s application of the law to undisputed facts, we apply a de novo standard of review. Ex parte J.E., 1 So.3d 1002, 1008 (Ala.2008).

Discussion

This Court set forth in Lowe, supra, the following procedure now applied in cases when the defendant motorist is either uninsured or underinsured and a uninsured/underinsured-motorist claim is made:

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

521 So.2d at 1310. As this Court noted, three essential considerations are accommodated by the above-quoted procedure: (1) the right of the liability insurer to know of and to participate in the suit; (2) the right of the insured to litigate all aspects of his or her claim in a single suit, avoiding costly and time-consuming separate trials of the same issues and facts; and (3) protection from the introduction of extraneous and corrupting influences, namely evidence of insurance coverage, during the liability phase of a trial. Lowe, supra.

Littrell argues that Taylor’s entry of an appearance as additional counsel of record for Thrasher and his withdrawal as counsel for RLI, after RLI had “opted out” of the proceedings pursuant to Lowe, violates the procedure set forth in Lowe. Littrell contends that Taylor’s appearance is a procedural move designed to insulate RLI from being introduced in any way at trial, while permitting RLI to actively participate at trial. Littrell cites Ex parte Edgar, 543 So.2d 682 (Ala.1989), in support of his position.

In Ex parte Edgar, the plaintiff sued the defendant seeking damages for injuries she sustained as the result of an automobile accident. She also asserted a claim against her insurer, Alfa Mutual Insurance Company, seeking underinsured-motorist benefits. Alfa filed a motion pursuant to Lowe seeking to exercise its right not to participate in the trial of the claims asserted by the plaintiff against the defendant. However, Alfa also sought in the motion the right to participate in discovery. Subsequently, Alfa amended the motion by stating that it was also reserving the right to intervene in the case at a later date. The plaintiff objected to Alfa’s motion to opt out of the case, stating that, if it did opt out, there was no authority to grant Alfa’s requests to participate in discovery and to reserve the right to join the litigation at a later date. The trial court denied Alfa’s request to withdraw from the case. Ex parte Edgar.

Alfa petitioned this Court for a writ of mandamus. In denying the petition and concluding that Alfa had made an improper election to withdraw from the case, this Court stated:

“[I]f the insurer is joined as a defendant by its insured, it is afforded the option under Lowe, if it acts timely, of being dismissed as a party to the case. Consequently, the insurer’s withdrawal from the case under Lowe terminates its right to participate in discovery. Rule 26, [Ala.] R. Civ. P.
“Alfa had the right under Lowe to withdraw from the present case at the time that it filed its motion on May 2, 1988. However, Alfa sought permission in that motion to continue to participate in discovery and, in addition, sought in its August 29, 1988, amended motion to reserve the right to intervene, if it determined that it would be in its best interest to later reenter the case. This is just the opposite of the procedure that was sanctioned in Lowe. Although Alfa argues that its request to participate in discovery was in the nature of a request for additional relief and, therefore, that its inclusion in the motion is not a ground upon which the trial court could have based its ruling, we view Alfa’s request to withdraw as being conditioned on its also being allowed to participate in discovery. The clear import of Alfa’s motion, as amended, is that Alfa wanted out of the case, but only if it could monitor the progression of the case through the discovery process and then intervene if it deemed it necessary in order to protect its interest. Construing Alfa’s motion in this manner, the trial court had no authority to grant it.”

Ex parte Edgar, 548 So.2d at 684-85.

Littrell argues that RLI, like Alfa in Ex parte Edgar, withdrew from the case pursuant to Lowe in order to prevent a jury from learning of the existence of insurance coverage and yet, at the same time, wanted to participate in discovery and at trial through its attorney Taylor. Littrell states that by substituting Thrasher as his client, Taylor is attempting to participate in the litigation of this matter on behalf of RLI without allowing Littrell the opportunity to reveal the identity of RLI and the reason for its being involved in the case. Thrasher relies upon the decisions in Driver v. National Security Fire & Casualty Co., 658 So.2d 390 (Ala.1995), and Ex parte State Farm Mutual Automobile Insurance Co., 674 So.2d 75 (Ala.1995), in support of her position that Taylor may serve as an additional counsel of record for her.

The plaintiff in Driver was a passenger in a vehicle that was involved in a collision with another vehicle being operated by the defendant, an uninsured motorist. The defendant died of injuries sustained in the accident. The plaintiff was insured by a liability-insurance policy issued by National Security Fire & Casualty Company (“National Security”), which contained an uninsured-motorist provision inuring to the benefit of the plaintiff. The plaintiff sued the uninsured defendant and included a claim against National Security seeking uninsured-motorist benefits under the policy. After the action was filed, the probate court appointed an attorney as the administrator ad litem for the defendant’s estate. The same attorney who was appointed administrator ad litem also represented the defendant’s estate in the pending litigation. Thereafter, National Security opted out of the trial of the case, pursuant to the procedure established in Lowe. On the eve of trial, the attorney for the defendant’s estate requested that National Security’s former counsel enter an appearance for the defendant’s estate and assist in the trial. Over objection by the plaintiff, National Security’s former counsel entered an appearance for the defendant’s estate as co-counsel. The jury ultimately rendered a verdict in favor of the defendant’s estate, and the trial court entered a judgment on that verdict.

The plaintiff argued on appeal that the trial court committed reversible error in allowing National Security’s former counsel to act as cocounsel for the defendant’s estate at trial. In affirming the judgment, this Court stated:

“National Security opted out under Lowe, to prevent the jury’s knowing that insurance was involved in the case. In order to avoid any conflict, National Security agreed to waive any subrogation rights it might have against the estate of [the defendant] in the event there was a verdict for Driver. Furthermore, National Security agreed, as required by Lowe, to be bound by the jury’s decision as to liability and damages and to satisfy any judgment for [the plaintiff], up to the policy limits. Lowe, [521 So.2d] at 1310.
“In Ex parte Edgar, 543 So.2d 682 (Ala.1989), the insured sued an alleged tort-feasor to recover damages arising out of an automobile accident and sued Alfa Mutual Insurance Company to recover underinsured motorist benefits. Alfa sought to exercise its option not to participate in the trial of the driver’s claims against the tort-feasor. Alfa did, however, seek to participate in discovery and then to intervene, if necessary, in order to protect its interest. The trial court denied Alfa’s motion to withdraw, stating that the motion was not timely. This Court held that Alfa had the right under Lowe to withdraw from the case, i.e., that the election was timely, but held that its withdrawal from the case terminated its right to participate in discovery. Ex parte Edgar, supra, at 685.
“The plaintiff cites Lowe and Edgar for the proposition that if an insurance company opts out of the trial in an uninsured motorist case it cannot ‘participate’ in the trial by hiring an attorney for the uninsured defendant motorist. We disagree.
“Both Lowe and Edgar involved a situation where the defendant motorist was allegedly underinsured. In such a situation, where the defendant motorist has liability insurance but the limits may not be sufficient to fully satisfy the potential judgment against him, the defendant motorist has an attorney retained by the carrier to defend him. When the under-insured carrier is named as a defendant, and chooses to opt out of the trial of the case, there is an attorney defending the interest of the underinsured motorist. As this Court acknowledged in Lowe, the underinsured motorist carrier, in opting out of the case, is essentially placing its fate in the hands of an attorney chosen by someone else. 521 So.2d at 1310.
“A different situation is created when the defendant motorist has no liability coverage: If the uninsured motorist carrier opts out of the trial of the case and there is no defense counsel already in place to represent the defendant motorist, then there is no mechanism to protect the interests of the insurer if the defendant motorist fails to, or chooses not to, defend his case. Understanding the need for the uninsured motorist insurance carrier to protect its interests, we hold that once the carrier opts out of the trial under Lowe, it may, in its discretion, hire an attorney to represent the uninsured motorist defendant.”

Driver, 658 So.2d at 394-95.

In Ex parte State Farm, the plaintiff was involved in an automobile accident with an uninsured motorist. The plaintiff had an automobile-liability policy with State Farm. The plaintiff sued the defendant and joined a claim against State Farm, seeking uninsured-motorist benefits. State Farm chose to opt out of the trial, relying on the procedures set forth in Lowe. State Farm then petitioned the trial court to allow it to hire an additional attorney to help represent at trial the defendant, who had already retained his own attorney. The trial court denied State Farm’s request. State Farm then petitioned this Court for a writ of mandamus directing the trial court to allow it to hire additional trial counsel for the defendant.

In granting State Farm’s petition, this Court relied on the decision in Driver, supra, and stated:

“Even when an uninsured motorist can afford to hire a defense attorney, the interests of the insurance company providing uninsured motorist benefits may not always be adequately represented at trial by that attorney, because the uninsured motorist’s interests may not always be squarely aligned with those of the insurance carrier. Obviously, there are also potential collusion problems. ‘Understanding the need for the uninsured motorist insurance carrier to protect its interests,’ we held in Driver, supra, ‘that once the carrier opts out of the trial under Lowe, it may, in its discretion, hire an [additional] attorney to represent the uninsured motorist defendant.’ 658 So.2d at 395.”

Ex parte State Farm, 674 So.2d at 77.

Thrasher argues that this ease is similar to cases involving an uninsured motorist because RLI has advanced the $25,000 in policy limits and that RLI, like an uninsured carrier in the uninsured scenario, must now bear the full brunt of potential liability. Thus, Thrasher contends, the holdings in Driver and Ex parte State Farm are applicable in this case and RLI has the right to appoint counsel to represent her.

Initially we note that, applying this Court’s holding in Ex parte Edgar, supra, to the facts of this case, it is clear that RLI and its attorney Taylor were without authority to participate in discovery after RLI had elected to opt out of the case pursuant to Lowe, supra. However, it does not appear from the materials presently before this Court that Littrell objected to RLI’s and Taylor’s participation in discovery. It was not until Taylor entered a notice of appearance on behalf of Thrasher that Littrell raised any objection in this case. Accordingly, any issue as to RLI’s and Taylor’s participation in discovery has been waived.

Secondly, Littrell argues that because this case involves «/wderinsured-mo-torist benefits, as opposed to iminsured-motorist benefits, and State Farm has provided Thrasher with competent and experienced counsel, who has represented Thrasher since the beginning of the action, the holdings in Driver and Ex parte State Farm are not applicable and RLI cannot retain Taylor to represent Thrasher. We agree. The holdings in Driver and Ex parte State Farm are limited to the uninsured scenario. The precarious situation in which an insurer might find itself in the uninsured scenario, as thoroughly explained in Driver and Ex parte State Farm, is simply not present here, where the underinsured Thrasher has been provided counsel by State Farm since the outset of the ease.

Further, Thrasher’s contention that this case is similar to the uninsured scenario because RLI has advanced the policy limits in this case and must bear the full brunt of any potential liability is not well taken. Although RLI has advanced the policy limits in this case, it also expressly preserved its subrogation interests against Thrasher pursuant to the procedures set forth in Lambert, supra. Thus, RLI does not bear the full brunt of the potential liability alone. Both RLI and Thrasher have a mutual interest in limiting their exposure to potential liability. We also note that State Farm does not become a disinterested party simply because RLI has advanced the policy limits under State Farm’s liability policy covering Matlock. This Court stated in Lambert that “the tort-feasor’s liability insurer has a higher duty than that of merely offering to pay the limits of its insured’s liability policy. This Court has held that the insurer’s duty to defend is more extensive than its duty to pay.” Lambert, 576 So.2d at 167. Therefore, this is not a situation, as discussed in Ex parte State Farm, where the interests of the parties are not “squarely aligned.” Ex parte State Farm, 674 So.2d at 77.

Conclusion

We conclude that Littrell has demonstrated a clear legal right to the relief sought. Accordingly, we grant the petition for a writ of mandamus and direct the Colbert Circuit Court to vacate its order of November 10, 2010, denying Littrell’s motion to require RLI to be bound by its decision to opt out of participation in the trial of this cause and to prevent any appearance and participation by RLI’s counsel Bert P. Taylor as additional counsel for the defendant Thrasher.

PETITION GRANTED; WRIT ISSUED.

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

MURDOCK, J., dissents.

MURDOCK, Justice

(dissenting).

The procedure described in Lowe v. Nationwide Insurance Co., 521 So.2d 1309 (Ala.1988), was suggested to the Court by both parties to that appeal, and agreed to by the Court, under circumstances where there were no “problems of confidence in defense counsel[’s]” ability to protect the interests of the underinsured-motorist-in-surance carrier. 521 So.2d at 1310. Specifically, in Lowe, the same insurance company provided both liability coverage to the alleged tortfeasor and underinsured-motorist coverage to the plaintiff. As the Court explained:

“[T]he alleged tort-feasor’s liability insurer and the plaintiffs underinsured motorist insurer are the same company. The problems of confidence in defense counsel and the knowledge of applicable limits do not exist. The suggested procedure seems unimpeachable under the circumstances, as well as being readily adaptable to other underinsured motorist claims.”

Lowe, 521 So.2d at 1310. Thus, Lowe was not concerned with the issue whether the plaintiffs underinsured-motorist insurer would be permitted to pay for counsel other than, or in addition to, whatever counsel might otherwise represent the alleged tortfeasor.

Subsequently, however, in Driver v. National Security Fire & Casualty Co., 658 So.2d 390 (Ala.1995), this Court was concerned with such a situation. The Court in Driver held that an uninsured-motorist-insurance carrier could hire an attorney to represent an uninsured-motorist defendant, even after the carrier had opted out of the trial under the procedure described in Lowe, because of “the need for the uninsured motorist insurance carrier to protect its interests” with an attorney in whom it had “confidence.” Driver, 658 So.2d at 395.

This Court was again confronted with a situation in which “confidence in defense counsel” might be an issue in Ex parte State Farm Mutual Automobile Insurance Co., 674 So.2d 75 (Ala.1995). The Court held that an uninsured-motorist-insurance carrier may hire an additional attorney to represent an uninsured-motorist defendant who already had hired an attorney using his or her own funds. 674 So.2d at 77.

The above-emphasized rationale of Driver logically applies (1) to the situation where an uninsured motorist has not been able to hire an attorney using his or her own funds and the interests of the alleged tortfeasor and of the uninsured-motorist-insurance carrier would be better protected if the alleged tortfeasor were to be represented by counsel proposed by the carrier, i.e., the situation presented in Driver, (2) to the situation where an uninsured motorist has hired an attorney using his or her own funds but the alleged tort-feasor and the uninsured-motorist-insurance carrier agree that their respective interests would be better protected if different or additional counsel were to represent the alleged tortfeasor, i.e., the situation presented in State Farm, and (3) to the situation where an underinsured motorist is represented by an attorney paid for by his or her own liability insurance company, but the alleged tortfeasor, his or her liability carrier, and the underinsured-motorist-insurance carrier agree that their respective interests would better protected if the alleged tortfeasor were to be represented by different or additional counsel proposed by the carrier, i.e., the situation presented in the present case. I fail to see a principled distinction between any of these three situations. In all three, the reason articulated by this Court for its holdings in Driver and State Farm is present: the insurance carrier’s need to protect its interest by insuring that the alleged tortfeasor, whose potential liability it insures, is represented by defense counsel in whom the carrier has confidence.

Further, absent a conflict of interest or similar concern involving the plaintiff (e.g., where proposed counsel for the alleged tortfeasor previously has represented the plaintiff in the same litigation), I cannot discern what concern it is of a plaintiff what counsel the alleged tortfeasor (and his or her liability carrier, where applicable) has chosen or agreed to (as has occurred here with respect to Taylor) or who pays counsel’s fees. Lowe was concerned with accommodating three specific, competing considerations:

“1) that of protecting the right of the insurer to know of, and participate in, the suit; 2) that of protecting the right of the insured to litigate all aspects of his claim in a single suit (‘Separate trials of the same issues and facts are a waste of time and money, and should be avoided if possible,’ Wall v. Hodges, 465 So.2d 359 (Ala.1984)); and 3) that of protecting the liability phase of the trial from the introduction of extraneous and corrupting influences, namely, evidence of insurance. Robins Engineering, Inc. v. Cockrell, 354 So.2d 1 (Ala.1977).”

521 So.2d at 1309. Only one of these considerations is a concern of the plaintiff, i.e., protecting the right of the plaintiff to litigate both its claim against the alleged tortfeasor and its claim against the uninsured/underinsured-motorist carrier in the same proceeding. The Lowe Court adopted an arrangement that fully addressed this concern, giving to plaintiffs the initial right to choose, in every case, whether they will litigate both their claims in the same proceeding. Once the plaintiff makes that choice, the concern of the plaintiff identified in Lowe will have been addressed. Assuming the plaintiff chooses to litigate both of its claims in the same proceeding, the concerns that remain are those of the uninsured/underinsured-mo-torist carrier. Thus, the Lowe Court left it to the insurance carrier to choose whether to accept the risk of the “extraneous and corrupting influence” that would attend its appearance before the jury in the single proceeding chosen by the plaintiff. I fail to see how the manner in which the alleged tortfeasor’s counsel is selected disrupts or otherwise has any bearing upon the arrangement adopted in Lowe, including in particular the manner in which the Lowe Court accommodated the plaintiffs right to litigate both its claims in the same proceeding.

It is true that in Driver the Court did make note of the fact that the uninsured-motorist carrier in that case had waived its subrogation rights against the alleged tort-feasor “in order to avoid any conflict [of interest],” 658 So.2d at 394; RLI has not waived its subrogation rights against the alleged tortfeasor here. Nowhere, however, does the Court in Driver state that the uninsured-motorist carrier’s waiver of sub-rogation rights was necessary to its holding that the tortfeasor could be represented by the same counsel that previously had represented the uninsured-motorist carrier. There was no mention of any such waiver in State Farm. Further, the potential conflict referenced by the Court is one that would be between the uninsured/underinsured-motorist carrier and the alleged tortfeasor. (If anything, a less than zealous representation of the alleged tortfeasor resulting from counsel’s knowledge that the insurer with whom he or she maintains a relationship maintains a right of subrogation against the alleged tortfea-sor would tend to work to the plaintiffs advantage.) Again, I fail to see how, in a case where the alleged tortfeasor (and his or her liability carrier if applicable) chooses to be represented by an attorney proposed by the uninsured/underinsured-mo-torist carrier, and accordingly waives any possible conflict relating to such representation, the plaintiff has any “standing” to complain as to whom the alleged tortfeasor chooses to have represent him or her. Insofar as I can see, the alleged tortfeasor’s choice of attorney does not disrupt the arrangement adopted in Lowe or, more specifically, deprive the plaintiff of the “benefit” intended for the plaintiff by that arrangement, i.e., litigating all its claims in one proceeding.

      . A wrongful-death case styled Misty Marlar, individually, mother, and as administrator of the estate of Austin Blake Miller v. Gilbert Lee Littrell, as individual, and Edwards Oil Com

        pany of Lawrenceburg, Inc. (CV-05-0237), and based on the same motor-vehicle accident was consolidated with this case below.

      . Thrasher has not presented this Court with a statement of facts. Rather, Thrasher has expressly adopted the statement of facts presented by Littrell. Thrasher states in brief that it is irrelevant whether RLI is paying her legal fees and that that fact does not alter Taylor’s obligations to Thrasher as her counsel.

      . The dissent states that it "cannot discern what concern it is of a plaintiff what counsel the alleged tortfeasor (and his or her liability carrier, where applicable) has chosen or agreed to (as has occurred here with respect to Taylor) or who pays counsel’s fees.” 73 So.3d at 1221. The plaintiff’s concern, at least in this case, is the fact that the defendant RLI, who has chosen to opt out of the proceeding pursuant to Lowe, nevertheless continues to have a representative presence in the proceeding in the form of its former counsel, who potentially would be free to present evidence generated by RLI for the benefit of RLI while Littrell would be prohibited from discussing the identity of RLI and its reasons for being involved in the case. The dissent would allow RLI to have the "best of both worlds” by allowing it to participate in the proceeding, all the while enjoying the protection of its anonymity. This is not what is contemplated by this Court’s decision in Lowe. For over 20 years the bench and bar have had a reliable mechanism in the under-insured scenario in Lowe. If an underinsured carrier were permitted to opt out and then allowed to provide the alleged tortfeasor representation in the form of its counsel, the mechanism provided in Lowe and concerns underlying the adoption of that mechanism would be rendered meaningless.

      . The purpose of the procedures adopted by this Court in Lambert was to reduce the conflict that may arise between an underinsured carrier and its insured.

      . Given the duties of loyalty and of zealous representation owed the tortfeasor by whatever counsel represents the tortfeasor, I do not believe this Court can assume that an under-insured-motorist carrier will have a "representative presence” or will be "participatfing] in the proceeding” in the manner referenced in note 3 of the main opinion. 73 So.3d at 1219-20 n. 3. In any event, the three concerns identified in Lowe as informing the Court's decision are no less met where a tortfeasor chooses to be represented by counsel who previously represented an uninsured/underinsured-motorist carrier in connection with the case.


author: PER CURIAM. COBB, Chief Justice STUART, Justice

text:
    Ex parte A.S. (In re A.S. v. I.M.S.).
    1100238.
    Supreme Court of Alabama.
    May 13, 2011.

      Frances R. Niccolai, Mobile, for petitioner.
   PER CURIAM.

A.S., the mother, appeals from the judgment of the juvenile court terminating her parental rights.

Facts and Procedural History

The child who is the subject of these proceedings was born in 2007 while the mother was incarcerated following her convictions for first-degree theft of property, third-degree escape, second-degree forgery, first-degree receipt of stolen property, second-degree escape, and intimidating a witness. The charges arose out of a shoplifting incident at a department store. The child was placed with the child’s grandmother (the mother’s adoptive mother), who is also the child’s paternal great-aunt (the mother’s paternal aunt). In August 2008, the mother was released from prison and was placed on probation. In September 2008, the mother was arrested for harassment and third-degree theft of property arising out of an incident at a discount store. On September 12, 2008, the grandmother sought temporary custody of the child pending a hearing on the grandmother’s petition to seek permanent custody. The juvenile court granted the grandmother’s motion for temporary custody.

The mother served six months’ imprisonment on the harassment charge and was released in March 2009. The third-degree-theft-of-property charge was dismissed. In June 2009, the mother was arrested after being indicted on charges arising out of the shoplifting incident at the department store. A probation-revocation hearing was set.

On June 22, 2009, the juvenile court entered an order awarding the grandmother custody of the child. On July 16, 2009, the grandmother filed a petition to terminate the mother’s parental rights. In her petition, the grandmother alleged that the mother had failed to maintain consistent contact or communications with the child and had failed to provide support for the child and that there were no viable alternatives other than terminating the mother’s parental rights. The juvenile court set the grandmother’s petition for a hearing.

At the hearing on the petition seeking termination of the mother’s parental rights, the mother testified that she was at that time serving a 15-year prison sentence but that she was enrolled in a program in the prison for people with addictions and that if she successfully completed the program she would be released in six months. The mother explained that the program consisted of counseling five days a week for six months. She stated that she was a kleptomaniac and that the program was intended to treat her addiction to shoplifting. The mother testified that if she was not released early as a result of completing that program, then she would be eligible for an early release under a probation program where she would be released but continue counseling and check in on a daily basis. She testified that she would be able to obtain employment while on release as part of the probation program.

The mother testified at the hearing on the grandmother’s petition that she was then 26 years old and that she lived with the grandmother until she was 19. The mother testified that the grandmother adopted her when she was 12 and that the grandmother received funds from Social Security to aid in her support. While she was living with the grandmother, she became pregnant and had a child when she was 15 years old. The grandmother adopted that child, a boy. The mother testified that, at 15 years of age, she did not understand that by agreeing to the adoption she was voluntarily giving up her rights as a parent and that she lived in the house with the grandmother and that child for three years. The mother testified that the grandmother receives a Social Security benefit for the older child and that that was the reason the grandmother adopted her older child.

The mother testified that the child who is the subject of this petition was born while she was incarcerated. The mother stated that the child calls both the grandmother and the mother “mom.” She stated that she has a relationship with the child and that the grandmother allows her to talk with the child. She testified that she has given some money to the grandmother to support the child. The mother testified that the child would be provided for if the grandmother adopted the child and that the grandmother had promised her she would not stop the mother from seeing the child.

Upon questioning by the juvenile court, the mother testified that she was “okay” with the grandmother’s adopting the child but that she did not want her parental rights terminated.

“Q. [The juvenile court:] Let me make sure I understand something, Ms. S., because it is important.
“A. [The mother:] Yes, sir.
“Q. Is it your statement today that you’re okay with your grandmother who’s adopted you and so she’s now legally your mother, adopting [the child]?
“A. I have no problem with that.
“Q. Okay. You’re okay with her adopting. You understand that if she adopts [the child], then she’s [the child’s] mother? Do you understand that’s what adoption means? Or do you understand that?
“A. Would that be terminating my parental rights also, Your Honor?
“Q. Well, [the child] can’t have two mothers. Okay. So if you consent to an adoption, when the adoption order is signed, it’s not an order terminating your rights, but you no longer have the rights of a parent because you’re no longer the child’s mother. Do you understand? You’re her biological mother, that will never changed.
“A. Yes, sir.
“Q. But you’re not her mother at that point.
“A. Would that mean she would, like, have to keep my child away from me?
“Q. No. She doesn’t have to keep your child away from you. She could let you visit whenever she wants you to. She would be in charge, though. You wouldn’t have a right to say, I want to visit her. That’s the difference. Whether I terminate your parental rights so she can adopt; or you agree to the adoption and she adopts, either way she’s in charge and you don’t have a say so. Do you understand?
“A. (Nodding head affirmatively.)
“Q. Do you understand?
“A. Yes, sir.
“Q. Okay. So, in other words, it’s not a real difference. It’s just the way the legal procedure goes. Either with a court order from me, or with your consent. In the case with [your older child], you filed a consent.
“A. Right.
“Q. It’s the same — that amounts to the same thing as my order terminating your rights.
“A. Right.
“Q. That consent does what I do, except that you did it voluntarily. That’s why the lawyer asked you about, Did you do this voluntary?
“A. Well, I have....
“Q. At 15 you may not have understood unfortunately.
“A. Well, I have no problem with her, you know....
“Q. Okay. I just wanted to make sure I understood you. And to, a little bit, put on record what it means.”

The mother testified that she had served time in jail in Florida after being convicted of receiving stolen property and attempted escape. She stated that charges arising out of her theft at the department store in Alabama were pending at the same time as were the charges in Florida. The mother testified regarding an incident following a court hearing on custody of the child where the mother had the child with her and wanted to leave with the child and the mother’s father took the child from her. The mother testified that after that hearing the grandmother told her to leave her house.

The grandmother testified at the hearing that she was then 80 years old and that she had adopted the mother’s older child and that she had temporary custody of the younger child. She testified that she receives Social Security benefits for the older child and that she receives Temporary Assistance for Needy Families for the younger child. The grandmother testified that she wants the younger child to have a life with the older child and not to move around to different places. The grandmother testified that if the mother would “straighten up and be a mother,” she would like for the mother to take care of both of her children. The grandmother testified that she did not mind if the mother had visitation with the child if the mother would behave. She testified that while she was living with the grandmother and the child the mother would sometimes stay out late and did not help with the child.

“Q. [The juvenile court:] You have legal custody of [the child] right now; do you not?
“A. [The grandmother:] Yes, I do.
“Q. So why did you feel you need to adopt her?
“A. Because I wants to adopt her. I wants to adopt her like I did her brother.
“Q. Why?
“A. I just want [the younger child] to have a home like [the older child] has.
“Q. [The child] is 3 years old; is that correct?
“A. No. [The child is] 2.
“Q. She’ll be 3 in February, I’m sorry. Is that correct?
“A. Yes. Yes.
“Q. So when [the child] reaches 18, you’ll be 95 years old?
“A. I’m 80 now.
“Q. So you’ll be 95 when [the child is] 15?
“A. That’s right.
“Q. Do you think you can raise her to majority age?
“A. I done raised her this far. When the Lord see time for me to stop, He’ll take care of that.
“Q. What did you think will happen to [the child] then?
“A. I got daughters and sons that will take her. I have children that love [the child] like they love their own.
“Q. Okay. And [the child] has her mother also; does she not?
“A. Sure she have a mother and I’m not trying to take these children away from their mother. But their mother has got to straighten up and be a mother.
“Q. I understand. And the mother loves her children; does she not?
“A. I’m sure she do. I hope she do.
“Q. Okay. And if something were to happen to you and the mother was out of prison and doing well, would you want [the child] to go with the mother?
“A. I sure would. I would want both of them to go with her if she’s going to be a mother for them.”

At the end of the hearing on the grandmother’s termination petition, the juvenile court asked counsel for the mother to provide a copy of the mother’s records from the Alabama Department of Corrections regarding the mother’s sentence of incarceration, which counsel subsequently provided to the court. The sentencing information provided to the court indicated that the earliest possible release date for the mother is September 2011 and that her “long date” for release is December 2016. The mother has accrued time for good behavior while in prison.

On May 3, 2010, the juvenile court entered an order terminating the mother’s parental rights. The juvenile court found that the child was dependent and that the mother was incarcerated. The juvenile court found that it was in the best interest of the child that the mother’s parental rights be terminated to allow the custodial grandmother to adopt the child. The mother appealed.

The Court of Civil Appeals affirmed the judgment of the juvenile court, without an opinion. A.S. v. I.M.S. (No. 2090774, November 19, 2010), — So.3d - (Ala.Civ.App.2010) (table). The mother petitioned for, and this Court granted, certiorari review.

Standard of Review

In order to terminate an individual’s parental rights, the trial court must find by clear and convincing evidence that the child is dependent and that an alternative less drastic than the termination of parental rights is not available. § 12-15-319, Ala.Code 1975; Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). “The trial court’s decision in proceedings to terminate parental rights is presumed to be correct when the decision is based upon ore tenus evidence, and such a decision based upon such evidence will be set aside only if the record shows it to be plainly and palpably wrong.” Ex parte State Dep’t of Human Res., 624 So.2d 589, 593 (Ala.1993). “This presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility.” Ex parte Farm, 810 So.2d 631, 633 (Ala.2001). The party seeking to terminate parental rights, however, has the burden of presenting clear and convincing evidence showing that the parent whose rights are at stake is not capable of discharging, or is unwilling to discharge, his or her parental responsibilities and that no viable alternatives to terminating his or her parental rights exist. Ex parte Ogle, 516 So.2d 243, 247 (Ala.1987); see also K.W. v. J.G., 856 So.2d 859, 874 (Ala.Civ.App.2003) (holding that the party seeking to terminate a parent’s rights bears the burden of proving that the termination of those rights is the appropriate remedy).

Analysis

The juvenile court specifically found that the child was dependent, based on the fact that the mother was incarcerated, although the juvenile court did not make a specific finding of fact regarding whether any viable alternatives to a termination of the mother’s parental rights existed. When a juvenile court has not made specific findings of fact in support of a judgment terminating parental rights, the appellate court must presume that the juvenile court made those findings necessary to support its judgment, provided those findings are supported by the evidence. D.M. v. Walker County Dep’t of Human Res., 919 So.2d 1197, 1210 (Ala.Civ.App.2005) (citing Ex parte Fann, 810 So.2d 631 (Ala.2001)).

When determining whether to terminate an individual’s parental rights, “the primary focus of a court ... is to protect the welfare of children and at the same time to protect the rights of their parents.” Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). Therefore, “a court should terminate parental rights only in the most egregious of circumstances.” Id. Ex parte Beasley set out a two-pronged test that a court must apply in terminating an individual’s parental rights. First, unless the person petitioning for the termination of parental rights is a parent of the child, the court must make a “finding of dependency.” 564 So.2d at 954. In order to make a finding of dependency, the court must consider, among others, the factors found in § 12-15-319(a)(l)-(12), Ala.Code 1975. After making a finding of dependency, the court must ensure that “all viable alternatives to a termination of parental rights have been considered.” 564 So.2d at 954.

The mother does not dispute that the child is dependent because she is incarcerated. Section 12-15-319(a) sets out factors a court must consider before terminating parental rights and provides, in pertinent part:

“If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents.”

In determining whether a parent is “unable or unwilling to discharge [her] responsibilities to and for the child,” the juvenile court must consider several factors, including “[c]onviction of and imprisonment for a felony.” § 12 — 15—819(a)(4).

In the present case, the mother argues that, although there was clear and convincing evidence of the child’s dependency, the grandmother failed to prove that no viable alternative to the termination of her parental rights existed under the circumstances. She argues that her condition is not “unlikely to change in the foreseeable future” because she will be eligible for probation in September 2011.

In Ex parte T.V., 971 So.2d 1 (Ala.2007), this Court reversed a judgment terminating a mother’s parental rights because the petitioner presented insufficient evidence to establish that no other viable alternative to termination of the mother’s parental rights existed. In T.V., the child was found to be dependent because the mother was addicted to drugs when the child was born, she rarely visited the child, and she had failed to support the child. Foster parents had raised the child, who was, at the time the petition was filed, four years old, and they had permanent legal custody of the child. The evidence before the trial court indicated that the mother had been drug-free for a year, that she had reconciled with her family and was raising her older child, and that she regularly attended church. This Court held that there was a viable alternative to termination of parental rights in that the foster parents could continue to have legal custody of the child and the mother could visit the child and establish a bond with the child.

In the present case, the grandmother has failed to present clear and convincing evidence that there is no less drastic measure than termination of the mother’s parental rights. The grandmother has sole custody of the child, and the mother’s visitation with the child is at the grandmother’s discretion. The grandmother testified that if the mother is behaving, then she wants the mother to have visitations with the child. The grandmother also testified that if something happened to her, she would want the mother to care for both of her biological children. The mother has shoplifting offenses and escape attempts on her record, but she has no convictions involving drugs or abuse. The harassment charge appears to have been filed by an employee of the discount store where the third-degree-theft charges arose who was familiar with the mother and who had had a long-term dispute with the mother. The mother has maintained limited contact with the child through telephone calls to the grandmother and has provided a small amount of support for the child. The evidence before the juvenile court indicated that the mother is in a treatment program in prison for her kleptomania and is apparently behaving while she is incarcerated because she has earned good-time credit. The mother is satisfied with the grandmother’s care of the child as evidenced by the mother’s testimony that she would not mind if the grandmother adopted the child but that she does not want her parental rights to the child terminated. The grandmother’s maintaining custody of the child and having the ability to determine and supervise the mother’s visitation "with the child is a viable alternative to termination of the mother’s parental rights while the mother is making progress towards rehabilitation. Thus, the juvenile court’s decision to terminate her parental rights appears to be premature.

“ ‘[T]he termination of parental rights is a drastic measure, and we know of no means by which those rights, once terminated, can be reinstated. The evidence in [this] case[ ] “does not rise to the level of being so clear and convincing as to support termination of the parental rights of the mother, such action being the last and most extreme disposition permitted by statute.” ’ ”

D.O. v. Calhoun County Dep’t of Human Res., 859 So.2d 439, 445 (Ala.Civ.App.2003) (quoting V.M. v. State Dep’t of Human Res., 710 So.2d 915, 921 (Ala.Civ.App.1998)).

We reverse the Court of Civil Appeals judgment affirming the juvenile court’s judgment terminating the mother’s parental rights, and we remand this case to the Court of Civil Appeals for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

COBB, C.J., concurs in the result.

STUART and WISE, JJ., dissent.

COBB, Chief Justice

(concurring in the result).

Although I agree with the conclusion in the majority opinion that the juvenile court erred in terminating the mother’s parental rights, I disagree with the reliance in the opinion on Ex parte T.V., 971 So.2d 1 (Ala.2007). T.V. presented a situation that is distinct from the situation presented in this case. At the time of the hearing on the termination petition in T.V., the mother, a former homeless, unemployed crack addict, had already turned her life around. This Court focused on the fact that a juvenile court, in deciding whether to terminate an individual’s parental rights, must look at the parent’s current conditions. The Court in T.V. stated:

“The Court of Civil Appeals has ‘consistently held that the existence of evidence of current conditions or conduct relating to a parent’s inability or unwillingness to care for his or her children is implicit in the requirement that termination of parental rights be based on clear and convincing evidence.’ D.O. v. Calhoun County Dep’t of Human Res., 859 So.2d 439, 444 (Ala.Civ.App.2003); see also P.H. v. Madison County Dep’t of Human Res., 937 So.2d 525, 531 (Ala.Civ.App.2006) (quoting D.O.).”

971 So.2d at 5. T.V.’s conditions at the time of the hearing were exemplary and demonstrated a probability that she would be able to function appropriately as a parent. Thus, the Court in T.V. held:

“Because the trial court did not, after full consideration of all the viable alternatives to terminating T.V.’s parental rights, find clear and convincing evidence that none existed, the order terminating her rights must be reversed and the cause remanded to the trial court for a full consideration of viable alternatives to terminating of T.V.’s parental rights. See State Dep’t of Human Res. v. A.J.T., 939 So.2d 46, 47-48 (Ala.Civ.App.2006) (‘A termination of parental rights ... should occur only after consideration of all possible viable alternatives to termination, and must be in the child’s best interest.’).”

971 So.2d at 10.

In this case, the mother is in prison for shoplifting. While the mother is in prison, the child, who is now 4 years old, is being cared for by her now 82-year-old maternal grandmother. The juvenile court terminated the mother’s parental rights so that the grandmother can adopt the child. The mother argues that the juvenile court erred in terminating her parental rights because, according to the mother, she can be out of prison soon and she will be able to find employment. These are events that may occur in the future; they do not represent the mother’s current conditions. Accordingly, I believe that the majority’s reliance on T.V.’s “current” conditions is misplaced.

However, T.V. does have application to the extent it requires the juvenile court to find clear and convincing evidence that no viable alternatives to the termination of parental rights exist. As applied to this case, I would hold that there was not a sufficient finding by clear and convincing evidence that the status quo, in which the grandmother maintains custody and the mother presents a reasonable likelihood that she will be able to function properly as a mother in the future, is not a viable alternative to the termination of the mother’s parental rights.

STUART, Justice

(dissenting).

I respectfully dissent. The termination of an individual’s parental rights is a serious matter, but one properly entrusted to the judgment of juvenile court judges who are experienced in such matters and who are best equipped to hear ore tenus evidence and to determine whether the statutory requirements for termination have been met and whether it is in the best interest of the child that the rights of the parent be terminated.

As I stated in my dissent in Ex parte T.V, 971 So.2d 1, 11-12 (Ala.2007) (Stuart, J., dissenting):

“The ‘best interest of the child’ is always of paramount importance in cases involving child custody and the termination of parental rights. In making such a determination the court or the agency determining the best interest of the child must give great weight to the stability, security, and permanency of the relationship between the child and the child’s caregiver. As the Nebraska Supreme Court has held:
“ ‘[Wjhere a parent is unable or unwilling to rehabilitate himself or herself within a reasonable time, the best interests of the child require termination of parental rights. In re Interest of Joshua M. et al., 251 Neb. 614, 558 N.W.2d 548 (1997).... The concept of permanency is not simply a “buzzword”, as [the mother] contends, but, rather, a recognition that when there is no reasonable expectation that a natural parent will fulfill his or her responsibility to a child, the child should be given an opportunity to live with an adult who has demonstrated a willingness and ability to assume that responsibility and has a permanent legal obligation to do so.’
“In re Sunshine A., 258 Neb. 148, 158, 602 N.W.2d 452, 460 (1999).”

In this case, the majority in effect reverses the juvenile court’s decision to terminate the mother’s parental rights to the child because, it concludes, termination of the mother’s parental rights is “premature.” 73 So.3d at 1230. The facts establish that the mother is presently in prison serving sentences for felony offenses. She presented evidence indicating that her earliest release date is September 2011 (16 months from the date of the termination-of-parental-rights order, May 3, 2010) and her “long date” for release is December 2016. This is not the mother’s first period of incarceration. In fact this child was born in 2007 while the mother was in prison for felony offenses. The mother has a lengthy criminal record. She has previously been released early from a sentence of incarceration and been placed on probation. She subsequently had that probation revoked. For this Court to assume that the mother will be released in September 2011, that she will not violate probation, parole, or early-release conditions so as to be reincarcerated, or that she will not re-offend and commence a new period of incarceration is mere speculation. The child apparently has lived with the grandmother, who now seeks to adopt the child, her entire life. The juvenile court’s order is supported by clear and convincing evidence, and its decision to terminate the mother’s parental rights is certainly not “premature.”

Further, the mother does not oppose the grandmother’s adopting the child. She simply does not want her parental rights terminated, which apparently means she just wants to be able to visit the child. There is no indication that the mother wants to or is capable of assuming responsibility for caring for the child.

The juvenile court’s order is supported by clear and convincing evidence, and it is not plainly and palpably wrong. This child deserves permanence and to remain with the person who has cared for her her entire life, the grandmother. The affir-mance by the Court of Civil Appeals of the juvenile court’s order is due to be affirmed.

WISE, J., concurs.

      . The grandmother’s petition also sought to terminate the parental rights of the putative father. He was served by publication and did not appear in court. His rights were terminated, and he is not a party to this appeal.

      . I note that the child's 82-year-old grandmother suffers from diabetes and high blood pressure, that the grandmother has some significant physical limitations, and that the mother states that the grandmother is in poor health. The grandmother testified that, if she became physically unable to care for the child, she would want the child to be cared for by the mother if the mother was capable of caring for the child. By terminating the mother’s parental rights to allow the grandmother to adopt the child, the juvenile court has ensured that the mother would not be legally responsible for the care and support of the child in the event the grandmother was no longer physically able to care for the child and that the child would likely have to undergo further uncertainty and additional proceedings to determine who would have ultimate custody of her. It appears that changing the status quo and terminating the mother's parental rights is not a reliable way to obtain stability, security, and permanency for the child and is therefore not in the best interest of the child. See Ex parte J.R., 896 So.2d 416, 423 (Ala.2004) (" ‘[T]he paramount concern in ... proceedings [to terminate parental rights] is the child’s best interests.’ ” (quoting J.V. v. State Dep’t of Human Res., 656 So.2d 1234, 1235 (Ala.Civ.App.1995))); cf. Ex parte J.E., 1 So.3d 1002, 1013 (Ala.2008) (Cobb, C.J., concurring specially) ("[T]his is not a case in which maintenance of the status quo would thwart the goal of ultimately providing the child permanent placement in a safe environment.... ”).


author: MOORE, Judge.

text:
    A.S. v. I.M.S.
    2090774.
    Court of Civil Appeals of Alabama.
    June 17, 2011.
    Frances R. Niccolai, Mobile, for appellant.
   After Remand from the Alabama Supreme Court

MOORE, Judge.

This court affirmed the juvenile court’s judgment, without an opinion. A.S. v. I.M.S. (No. 2090774, Nov. 19, 2010), — So.3d -(Ala.Civ.App.2010) (table). The judgment of this court has been reversed, and the cause remanded by the Supreme Court of Alabama. See Ex parte A.S., 73 So.3d 1223 (Ala.2011). On remand to this court, and in compliance with the Supreme Court’s opinion, the juvenile court’s judgment terminating the parental rights of A.S. is hereby reversed, and the cause is remanded for the entry of a judgment consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur.