author: PARKER, Justice.

text:
    Ex parte BESSEMER CITY BOARD OF EDUCATION and Davis Middle School. (In re John Doe, a minor, by and through his next friend, W.A. v. Davis Middle School et al.).
    1121111.
    Supreme Court of Alabama.
    Nov. 15, 2013.

      Dana Bolden Hill of Boardman, Carr, Bennett, Watkins, Hill & Gamble, P.C., Chelsea, for petitioners.
    Andrew J. Coleman, Birmingham, for respondent.
   PARKER, Justice.

The Bessemer City Board of Education (“the Board”) and Davis Middle School (“the school”) (hereinafter collectively referred to as “the petitioners”) petition this Court for a writ of mandamus directing the Jefferson Circuit Court to vacate its May 17, 2013, order denying the petitioners’ motion to dismiss the claim filed against them by John Doe, a minor, by and through his next friend, W.A. (“Doe”), and to enter an order dismissing with prejudice the claim against the petitioners. We grant the petition and issue the writ.

Facts and Procedural History

On March 8, 2013, Doe filed a complaint alleging a single claim of negligence against the petitioners and Albert Soles, the principal of the school, in his individual capacity. The complaint alleged that Doe had been sexually abused by an unidentified male as a result of the negligence of the petitioners and Soles to adequately supervise him.

On April 15, 2013, the petitioners filed a motion to dismiss the action against them based on immunity grounds. Specifically, the petitioners argued that the Board is entitled to State immunity under Art. I, § 14, Ala. Const.1901, and that the school is not a separate legal entity from the Board. On May 17, 2013, the circuit court denied the petitioners’ motion.

The petitioners seek a writ of mandamus from this Court directing the circuit court to vacate its May 17, 2013, order denying the petitioners’ motion to dismiss and to enter an order dismissing with prejudice Doe’s action against the petitioners.

Standard of Review

“ ‘ “It is well established that mandamus will lie to compel a dismissal of [a] claim that is barred by the doctrine of sovereign immunity.” Ex parte Blankenship, 893 So.2d 303, 305 (Ala.2004).

“ ‘ “A writ of mandamus is a
“ ‘ “ ‘drastic and extraordinary writ that will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ ”
‘“Ex parte Wood, 852 So.2d 705, 708 (Ala.2002) (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)).
“ ‘ “ ‘[I]f an action is an action against the State within the meaning of § 14, such a ease “presents a question of subject-matter jurisdiction, which cannot be waived or conferred by consent.” ’ Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004) (quoting Patterson v. Gladwin Corp., 835 So.2d 137, 142-43 (Ala.2002)). ‘Therefore, a court’s failure to dismiss a case for lack of subject-matter jurisdiction based on sovereign immunity may properly be addressed by a petition for the writ of mandamus.’ Ex parte Alabama Dep’t of Mental Health & Retardation, 837 So.2d 808, 810-11 (Ala.2002).”
‘Ex parte Davis, 930 So.2d 497, 499-500 (Ala.2005).’ ”

Ex parte Phenix City Bd. of Educ., 67 So.3d 56, 58-59 (Ala.2011) (quoting Ex parte Lawley, 38 So.3d 41, 44-45 (Ala.2009)).

Analysis

The petitioners argue that Doe’s negligence claim against them is due to be dismissed because, they argue, the Board is entitled to State immunity under Art. I, § 14, Ala. Const.1901, and the school is not a separate legal entity from the Board. We agree.

In Phenix City, supra, a city board of education was sued separately by several minors, who, by and through their next friends, asserted various tort claims against the city board. In each case, the city board of education filed a motion to dismiss the tort claims filed against it based on the doctrine of State immunity; the trial court denied the city board of education’s motions to dismiss. The city board of education then petitioned this Court for writs of mandamus directing the trial court to vacate its orders denying the city board of education’s motions to dismiss and to enter orders dismissing with prejudice the tort claims asserted against the city board of education. In granting the city board of education’s petitions for writs of mandamus, this Court stated:

“In Enterprise City Board of Education v. Miller, 348 So.2d 782 (Ala.1977), this Court held that city boards of education were immune from civil actions. We stated:
“ ‘City boards of education are authorized by the legislature. Title 52, Section 148, et seq. [now § 16-11-1 et seq., Ala Code 1975].
‘“Like county school boards, they are agencies of the state, empowered to administer public education within the cities. As such, a city school board is not a subdivision or agency of the municipal government. Opinion of the Justices [No. 180 ], 276 Ala. 239, 160 So.2d 648 (1964). A city school board’s relation to the city is analogous to a county school board’s relation to the county. State v. Brandon, 244 Ala. 62,12 So.2d 319 (1943).
“ ‘There is no mention in the statutes under which city school boards are created of the ability to be sued. Title 52, section 168 [now § 16-11-13], allows a city school board to institute condemnation proceedings. The only other statute which refers to litigation at all is Title 52, section 161 [now § 16-11-12], which provides:
“ ‘ “The city board of education shall have the full and exclusive rights -within the revenue appropriated for such purposes, or accruing to the use of the public schools, to purchase real estate, furniture, appropriate libraries, fuel and supplies for the use of the schools, and to sell the same, and to make expenditures for the maintenance and repairs of the school grounds, buildings and other property, to establish and build new schools, to superintend the erection thereof, to purchase sites therefor, to make additions, alterations and repairs to the building and other property erected for school uses, and to make necessary and proper notes, contracts and agreements in relation to such matters. All such contracts shall inure to the benefit of the public schools, and any suit in law or equity brought upon them and for the recovery and protection of money and property belonging to and used by the public schools, or for damages, shall be brought by and in the name of the city.”
“ ‘It is clear, therefore, that there is no express language in the legislation which would allow a tort action against a city school board. Neither is there language from which legislative intent to allow such actions may be inferred. To the contrary, the legislation seems clearly to deny such suits.’
348 So.2d at 783-84.
“City boards of education are local agencies of the State; therefore, they enjoy constitutional immunity from tort actions alleging negligent entrustment and asserting claims of loss of services. Enterprise City Bd. of Edue., supra; Bessemer Bd. of Educ. v. Tucker, 999 So.2d 957, 962 (Ala.Civ.App.2008) (noting that, because city boards of education are agencies of the State, they enjoy immunity from suit to the extent authorized by the legislature ...). Accordingly, the claims against the Board of negligent entrustment and asserting loss of services on behalf of the parents are barred by Art. I, § 14, Ala. Const. 1901.”

Phenix City, 67 So.3d at 59-60. As an agency of the State, the Board is entitled, under Art. I, § 14, Ala. Const.1901, to absolute immunity from the negligence claim brought against it by Doe. Accordingly, the Board is due to be dismissed from the action.

The school is also due to be dismissed from the action because it is not a separate legal entity from the Board but operates under the direction of the Board. The legislature has vested city boards of education “with all the powers necessary or proper for the administration and management of the free public schools within such city....” § 16-11-9, Ala.Code 1975. The legislature has also provided that “[t]he general administration and supervision of the public schools and educational interest of each city [is] vested in a city board of education....” § 16-ll-2(b), Ala. Code 1975. Accordingly, the school is not a separate legal entity from the Board and is, therefore, also due to be dismissed from the action. See B.M. v. Crosby, 581 So.2d 842, 842 n. 1 (Ala.1991) (recognizing that a school and the board of education under which it operates are not separate legal entities); see also Alabama Girls’ Indus. Sch. v. Reynolds, 143 Ala. 579, 42 So. 114 (1904) (finding that a state-owned and - operated school was entitled to State immunity).

Doe argues that the State-agent-immunity rules set forth in Ex parte Cranman, 792 So.2d 392 (Ala.2000), and adopted by a majority of this Court in Ex parte Butts, 775 So.2d 173 (Ala.2000), should govern this case. However, State-agent immunity applies to a claim of immunity by an agent of the State; it does not apply to a claim of State immunity by an agency of the State itself. Because “[c]ity boards of education are local agencies of the State,” State-agent immunity is inapplicable here. Phenix City, 67 So.3d at 60 (citing Enterprise City Bd. of Educ. v. Miller, 348 So.2d 782, 783 (Ala.1977)).

Conclusion

The petitioners have demonstrated that they are entitled to absolute immunity from Doe’s action against them. Therefore, we grant the petition and issue a writ directing the circuit court to vacate its May 17, 2013, order denying the petitioners’ motion to dismiss and to enter an order dismissing the petitioners from the action.

PETITION GRANTED; WRIT ISSUED.

MOORE, C.J, and STUART, SHAW, and WISE, JJ., concur.

      . Soles did not join the petitioners' motion to dismiss.


source: Caselaw Access Project

author: MURDOCK, Justice. BOLIN, Justice BRYAN, Justice

license: Public Domain

text:
    EX PARTE ALABAMA DEPARTMENT OF TRANSPORTATION and John R. Cooper, as director of the Alabama Department of Transportation. (In re Asphalt Contractors, Inc. v. Alabama Department of Transportation and John R. Cooper, as director of the Alabama Department of Transportation).
    1101439.
    Supreme Court of Alabama.
    Dec. 6, 2013.

      Luther Strange, atty. gen.; John C. Nei-man, Jr., deputy atty. gen.; and Jim R.

      Ippolito, Jr., asst. atty. gen. and chief counsel, and Floyd R. Gilliland, Jr., and Reed Williams, deputy attys. gen., Alabama Department of Transportation, for petitioners.
    Cowin Knowles and E. Hamilton Wilson, Jr., of Ball, Ball, Matthews & Novak, P.A., Montgomery, for respondent.
   MURDOCK, Justice.

The Alabama Department of Transportation (“ALDOT”) and its director John R. Cooper petition this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its order denying their motion to dismiss all claims filed against them by Asphalt Contractors, Inc. (“ACI”). We grant the petition in part and deny it in part.

I. Facts and Procedural History

Most of the factual background is succinctly explained in ACI’s original complaint.

“1. Trichloroethylene (‘TCE’) and other chemicals were used by ALDOT at its Coliseum Boulevard and Fairgrounds Road facilities since the early 1970s. The use, storage, handling, management, and/or disposal of TCE by AL-DOT was pursuant to the authority of [Cooper],
“2. TCE was used extensively by AL-DOT (or its predecessor agency) as a degreaser and/or cleaning agent and/or as a solvent. TCE was also used to test the suitability of various materials for use as a road pavement. TCE was used by ALDOT from the 1960’s through 1985. All of these activities were undertaken pursuant to the authority and approval of [Cooper].
“8. The practices and procedures used by ALDOT, its Director, officers, agents, and employees, resulted in on-site discharge and disposal of TCE. Spent TCE was poured into the sewer system until the late 1980’s. TCE then found its way into surrounding groundwater and soil.
“4. TCE is now contained in shallow groundwater, which is about 10' to 50' below land surface in an area in North Montgomery.
“5. Over a period of years, the TCE discharged and disposed of at the AL-DOT locations contaminated a plume of groundwater immediately beneath the Eastern Meadows, Vista View, and Chisholm residential communities. The contaminated plume of groundwater is known as the Coliseum Boulevard Plume (‘CBP’). The CBP is located in Montgomery, Alabama, and includes areas generally east of Lower Wetumpka Road, south of the CSX Railroad tracks and Northern Boulevard, and west of Emory Folmar Boulevard. However, the plume of contaminated groundwater has continued to migrate over a broader area.
“6. ACI operates sand and gravel mines on properties southwest of the CBP. North Montgomery Materials likewise operated sand and gravel mines on property adjacent to ACI’s property and southwest of the CBP.
“8. Hydraulic control is the method used to intercept, capture or control groundwater flow. It is a remedial technology that involves the use of de-watering systems (i.e., wells, pumps, excavation dewatering) to affect the movement of groundwater. ALDOT determined that a hydraulic-control system was capable of accomplishing a remedial objective of plume containment within a controlled boundary and minimizing exposure at the extraction point. “9. During its investigations, ALDOT discovered that the rate and direction of groundwater flow in the CBP was influenced by the dewatering operations in the area of North Montgomery Materials, Inc. and ACI (i.e., known as the Southwest Area (‘SWA’)). The pumping of water affected the southwestward migration of the dissolved TCE groundwater plume. ALDOT determined through modeling that groundwater in the western part of the CBP could be controlled by continued, managed pumping at the SWA.
“11. ALDOT had a duty to remediate the CBP. ALDOT, incident to its responsibilities for investigation and remediation of the CBP, implemented an institutional Control Program (TCP’) to minimize exposure of the groundwater containing TCE and to prevent TCE contamination of deeper groundwater aquifers.
“12. ALDOT developed a Corrective Measures Implementation Plan for the western part of the CBP. The Interim Operating Plan for ALDOT utilized an interim operating plan to manage and maintain Hydraulic control over the groundwater in the western part of the CBP.
“13. In April 2009, ALDOT purchased the site [of] the former sand and gravel mine located west of Lower Wetumpka Road from North Montgomery Materials, Inc.
“14. ALDOT implemented the Hydraulic control features of the Interim Plan involved the use of a series of ponds through which groundwater moves [sic]. The ponds are located on the land purchased form North Montgomery Materials, Inc. and adjacent to ACI’s property. “15. The Dewatering Pond [is] located on the former North Montgomery Materials, Inc. property. Groundwater is captured by designed pumping into the Dewatering Pond. Water from the De-watering Pond is then pumped to the Transfer Pond which provides primary treatment and settling of solids in water. Water from the Transfer Pond is then pumped to the South Pond for additional treatment prior to discharge into a wetland area. Wetland vegetation in the South Pond provides treatment of the TCE-laden water. The water is then discharged into Three Mile Branch.
“16. Part of the South Pond sits atop property owned by ALDOT, and previously owned by North Montgomery Materials, Inc. and part atop property currently owned by ACI. Water which backs up from the South Pond sits atop property currently owned by ACI. Water from the South Pond then flows into a wetland area, part of which sits atop property owned by ACI. As such, AL-DOT is discharging TCE-laden water onto ACI property.
“17. Since at least April 2009, ALDOT has pumped groundwater into the Dewa-tering Pond and from there onto the Transfer Pond and then to the South Pond. A portion of the South Pond and wetland area used in ALDOT’s remedial efforts to treat the CBP is on ACI’s property, and as such, TCE is being discharged onto ACI’s property.
“18. On April 15, 2010, ACI demanded that ALDOT immediately cease all dumping of contaminated water on ACI’s property. However, the dumping of TCE-laden water onto ACI’s property has continued to the date of filing of this action.”

On April 12, 2011, ACI filed a “Petition for Temporary Restraining Order/Preliminary Injunction/Complaint” against AL-DOT and Cooper, in his official capacity as the director of ALDOT. The complaint asserted trespass to realty and inverse condemnation and made claims for injunc-tive relief. ACI requested damages for the full fair-market value of its property, consequential and incidental damages, compensatory damages, punitive and exemplary damages, expenses, costs, interest, and attorney fees.

On May 12, 2011, ALDOT and Cooper filed a motion to dismiss the complaint in which they contended that the trial court lacked subject-matter jurisdiction because ALDOT and Cooper were entitled to State immunity. On May 19, 2011, ACI filed a response to ALDOT’s motion to dismiss. On July 13, 2011, ACI filed an amended complaint in which it added a claim that it was entitled to an injunction because, it says, ALDOT, through Cooper, acted fraudulently, in bad faith, beyond its authority, or under a mistaken interpretation of the law.

On July 15, 2011, the trial court held a hearing on the motion to dismiss and heard testimony and arguments concerning ACI’s request for a preliminary injunction. On July 27, 2011, the trial court entered an order denying the motion to dismiss, and it took ACI’s motion for a preliminary injunction under advisement.

II. Standard of Review

“ ‘It is well established that mandamus will lie to compel a dismissal of claim that is barred by the doctrine of sovereign immunity.’ Ex parte Blankenship, 893 So.2d 303, 305 (Ala.2004).

“ ‘A writ of mandamus is a
“ ‘ “drastic and extraordinary writ that will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” ’
“Ex parte Wood, 852 So.2d 705, 708 (Ala.2002) (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)).
“ ‘ “[I]f an action is an action against the State within the meaning of § 14, such a case ‘presents a question of subject-matter jurisdiction, which cannot be waived or conferred by consent.’ ” Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004) (quoting Patterson v. Gladwin Corp., 835 So.2d 137,142-43 (Ala.2002)). “Therefore, a court’s failure to dismiss a case for lack of subject-matter jurisdiction based on sovereign immunity may properly be addressed by a petition for the writ of mandamus.” Ex parte Alabama Dep’t of Mental Health & Retardation, 837 So.2d 808, 810-11 (Ala.2002).’
“Ex parte Davis, 930 So.2d 497, 499-500 (Ala.2005).”

Ex parte Lawley, 38 So.3d 41, 44-45 (Ala.2009).

“ ‘In Newman v. Savas, 878 So.2d 1147 (Ala.2003), this Court set out the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:
“ ‘ “A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). This Court must accept the allegations of the complaint as true. Creóla Land Dev., Inc. v. Bentbroolce Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.”
“ ‘878 So.2d at 1148-49.’
“Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 563 (Ala.2005). We construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff. Drummond Co., 937 So.2d at 58.”

Ex parte Alabama Dep’t of Transp., 978 So.2d 17, 21 (Ala.2007).

III. Analysis

ALDOT and Cooper contend that they are immune from suit under Art. I, § 14, Ala. Const.1901. As to ALDOT, they are unquestionably correct.

“This Court has repeatedly held that § 14, Ala. Const.1901, ‘affords the State and its agencies an “absolute” immunity from suit in any court.’ Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004); see also Ex parte Mobile County Dep’t of Human Res., 815 So.2d 527, 530 (Ala.2001) (‘Pursuant to § 14, Ala. Const, of 1901, the State of Alabama and its agencies have absolute immunity from suit in any court.’); Ex parte Tuscaloosa County, 796 So.2d 1100, 1103 (Ala.2000) (‘Under Ala. Const, of 1901, § 14, the State of Alabama has absolute immunity from lawsuits. This absolute immunity extends to arms or agencies of the state....’). This absolute immunity from suit also bars suits for relief by way of mandamus or injunction. Ex parte Troy Univ., 961 So.2d 105, 110 (Ala.2006).”

Ex parte Alabama Dep’t of Transp., 978 So.2d at 22. See also Ex parte Alabama Dep’t of Transp., 985 So.2d 892, 895 (Ala.2007) (stating that “ALDOT is a State agency, and this Court has repeatedly held that the absolute bar of § 14 applies to the State and its agencies”). Thus, the trial court erred in denying the motion to dismiss ACI’s claims against ALDOT. We therefore grant the petition as to ACI’s claims against ALDOT.

ACI’s claims against Cooper, however, are another matter. This Court has repeatedly stated that there are general categories of actions against State officials that do not come within the prohibition of § 14. Those categories are:

“(1) actions brought to compel State officials to perform their legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; and (4) actions brought under the Declaratory Judgments Act, Tit. 7, § 156, et seq., seeking construction of a statute and its application in a given situation.... Other actions which are not prohibited by § 14 are: (5) valid inverse condemnation actions brought against State officials in their representative capacity; and (6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority or in a mistaken interpretation of law.”

Drummond Co. v. Alabama Dep’t of Transp., 937 So.2d 56, 58 (Ala.2006) (first emphasis added).

ALDOT and Cooper correctly argue that ACI’s claim against Cooper in his official capacity alleging trespass to realty does not fall within any of the categories of so-called “exceptions” to State immunity. Consequently, the trial court should have granted ALDOT and Cooper’s motion to dismiss ACI’s claim against Cooper alleging trespass to realty.

ALDOT and Cooper also contend that the trial court lacked jurisdiction over the original complaint, so this Court should not consider the claim in ACI’s amended complaint for an injunction based on allegations that Cooper acted fraudulently, in bad faith, beyond his authority, or under a mistaken interpretation of the law. Whatever the merits of such an argument might otherwise be, the predicate for it in this case — that the trial court lacked jurisdiction over the original complaint — is incorrect. ACI’s original complaint stated an inverse-condemnation claim over which the trial court had jurisdiction.

“Regarding the power of eminent domain, this Court has stated that ‘“[i]n every government there is inherent authority to appropriate the property of the citizen for the necessities of the State, and constitutional provisions do not confer the power, though they surround it with safeguards to prevent abuse.” ’ Jones v. Nashville, Chattanooga & St. Louis Ry., 141 Ala. 388, 394, 37 So. 677, 679 (1904) (quoting Cooley’s Const. Lim., 366-57).
“ ‘The Takings Clause of the Constitution of the United States provides:
“ “‘No ... private property [shall] be taken for public use, without just compensation.”
“‘U.S. Const, amend. V. This limitation on the power of the Federal Government to take property without just compensation also applies, through the Due Process Clause of the Fourteenth Amendment, to limit takings by state governments. See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992).’
“Alabama Power Co. v. Citizens of the State of Alabama, 740 So.2d 371, 389 (Ala.1999). The Alabama Constitution of 1901 provides similar safeguards. See Ala. Const, of 1901, art. I, § 23, and art. XII, § 235.”

State v. Armstrong, 779 So.2d 1211, 1214 (Ala.2000). This Court has further explained:

“Generally, the State’s exercise of the power of eminent domain is accomplished through the statutorily regulated process of condemnation. See, e.g., State Dep’t of Transp. v. McLelland, 639 So.2d 1370 (Ala.1994). Section 18-1A-32(a), Ala.Code 1975, provides:
“ ‘(a) If property is to be acquired by a condemnor through the exercise of its power of eminent domain, the condemnor shall commence a condemnation action for that purpose. A con-demnor shall not intentionally make it necessary for an owner of property to commence an action, including an action in inverse condemnation, to prove the fact of the taking of his property.’
“This Court stated in Ex parte Carter, 395 So.2d 65, 67 (Ala.1980), ‘[i]nverse condemnation is defined as the taking of private property for public use without formal condemnation proceedings and without just compensation being paid by a governmental agency or entity which has the right or power of condemnation.’ ”

Alabama Dep’t of Transp. v. Land Energy, Ltd., 886 So.2d 787, 792 (Ala.2004). See also Jefferson Cnty. v. Southern Natural Gas Co., 621 So.2d 1282, 1287 (Ala.1993) (observing that “ ‘[ijnverse condemnation’ ... is a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when the taking authority has not initiated condemnation proceedings”).

ALDOT and Cooper contend that ACI did not state a valid inverse-condemnation claim because it has not alleged that ALDOT committed an actual physical taking of its property for public use; rather, ACI has claimed that ALDOT injured its property through the pumping of TCE-laden water onto its land. ALDOT and Cooper cite Willis v. University of North Alabama, 826 So.2d 118 (Ala.2002), in support of the distinction between a physical taking of property and injury to property.

In Willis, Donald Willis filed an inverse-condemnation action against the University of North Alabama (“UNA”), which had built a multilevel parking deck across the street from his property. Willis complained that the parking deck “damaged his property and caused the value of his property to decrease substantially.” Id. at 119. The Willis Court affirmed a summary judgment entered by the trial court in favor of UNA. In doing so, the Court overturned two previous cases — Foreman v. State, 676 So.2d 303 (Ala.1995), and Barber v. State, 703 So.2d 314 (Ala.1997)— which had “held that under § 23[, Ala. Const. 1901,] ‘“a governmental authority need only occupy or injure the property in question.” ’ ” 826 So.2d at 121. The Willis Court concluded that “those holdings [were] incorrect” because § 23, Ala.Const. 1901, requires that private property not be “taken” for public use without just compensation. Id. The Court noted that “the trial court assumed that Willis’s property was injured ...; however, since no portion of Willis’s property was ‘taken,’ or applied to public use by UNA, UNA was not required to compensate Willis under § 23 of the Constitution.” Id. ALDOT and Cooper argue that, like the property owner in Willis, ACI has claimed only that its property has been injured, not taken, and thus that ACI has not stated a valid inverse-condemnation claim under § 23.

ACI argues that it has stated a valid inverse-condemnation claim. It first notes that this Court has stated that “an inverse-condemnation action must be brought against a State official in his or her official capacity.” State v. Cornelius, 36 So.3d 504, 507 (Ala.2009). ACI named Cooper, in his capacity as director of ALDOT, as a defendant in its inverse-condemnation action. Moreover, ACI distinguishes Willis, observing that

“[u]nlike Willis, in the current case, there was a physical taking (i.e., a continued discharge of water onto ACI’s property) and that taking was properly pled in ACI’s complaint. ACI alleged that ALDOT ‘took’ ACI’s property by discharging TCE-laden water onto ACI’s property and using ACI property as a TCE filter.”

ACI’s brief, p. 19 (emphasis added). ACI further contends that “[b]y pumping water onto ACI’s property without first obtaining a drainage easement via appropriate eminent-domain proceedings, ALDOT improperly subjected ACI’s property to public use in violation of the constitution.” Id. at 20.

In its original complaint, ACI alleged that

“[w]ater from the Transfer Pond is then pumped to the South Pond for additional treatment prior to discharge into a wetland area. Wetland vegetation in the South Pond provides treatment of the TCE-laden water. The water is then discharged into Three Mile Branch.
“16. Part of the South Pond sits ... atop property currently owned by ACI. Water which backs up from the South Pond sits atop property currently owned by ACI. Water from the South Pond then flows into a wetland area, part of which sits atop property owned by ACI. As such, ALDOT is discharging TCE-laden water onto ACI property.
“17. Since at least April 2009, ALDOT has pumped groundwater into the Dewa-tering Pond and from there onto the Transfer Pond and then to the South Pond. A portion of the South Pond and wetland area used in ALDOT’s remedial efforts to treat the CBP is on ACI’s property, and as such, TCE is being discharged onto ACI’s property.”

(Emphasis added.) The complaint further alleged that

“2. The State of Alabama and its agencies exercise the power of eminent domain as accomplished through the statutorily regulated process of condemnation.
“3. ALDOT, and [Cooper], in his representative capacity, as an agency of the State, [have] the right of power of eminent domain to acquire property for its use.
“4. Alabama Constitution Article 1, § 23 requires that the taking of any private property by the State be compensated. More specifically, private property shall not be taken for or applied to public use unless just compensation be first made therefor.
“5. Through its discharge of TCE-laden water upon ACI’s land, ALDOT and [Cooper], in his representative capacity, have damaged ACI’s real property. Such actions constitute a taking of ACI’s real property.
“6. The taking of ACI’s property for public use without formal condemnation proceedings and without just compensation being paid by ALDOT and [Cooper], in his representative capacity, constitutes inverse condemnation.”

(Emphasis added.)

Though it is true that ACI alleged that ALDOT and Cooper “damaged,” or injured, ACI’s property, it is also apparent that ACI alleged that ALDOT and Cooper appropriated ACI’s property for public use. ACI alleged that ALDOT, under Cooper’s direction, physically pumped chemically tainted water onto ACI’s property, used ACI’s property to help in the cleanup of TCE from area groundwater, and dumped at least a portion of the remaining water into ACI-owned wetland property. ALDOT and Cooper allegedly did all of this without initiating eminent-domain proceedings in order to use ACI’s private property for public use. Clearly, in this case, unlike in Willis, there has been a “physical invasion” of the plaintiffs land.

ALDOT and Cooper contend that even if we conclude that their actions constituted a taking for constitutional purposes, ACI’s inverse-condemnation claim is still barred by § 14 because ACI seeks to recover money from the State. ALDOT and Cooper note that this Court has recently stated:

“The ‘exceptions’ to § 14 are qualified by the general principle that ‘ “[a]n action is one against the [Sjtate when a favorable result for the plaintiff ... would result in the plaintiffs recovery of money from the [Sjtate.” ’ Alabama Agric. & Mech Univ. v. Jones, 895 So.2d 867, 873 (Ala.2004) (quoting Shoals Cnty. Coll. v. Colagross, 674 So.2d 1311, 1314 (Ala.Civ.App.1995)(em-phasis omitted)); see also Ex parte Butts, 775 So.2d 173, 177 (Ala.2000) (‘A complaint seeking money damages against a State employee in his or her official capacity is considered a complaint against the State, and such a complaint is barred by Art. I, § 14, Alabama Constitution of 1901.’). Further, this Court has held that actions to recover money damages from the State that seek to compel the payment of money the State is not legally obligated to pay pursuant to a contract are generally barred.”

Ex parte Murphy, 72 So.3d 1202, 1207-08 (Ala.2011). See also Ex parte Town of Lowndesboro, 950 So.2d 1203, 1206 (Ala.2006) (stating that “a party may not indirectly sue the State by suing its officers or agents ‘ “when a result favorable to plaintiff would be directly to affect the financial status of the state treasury ” ’ ” (quoting Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002), quoting in turn State Docks Comm’n v. Barnes, 225 Ala. 403, 405, 143 So. 581, 582 (1932) (emphasis added in Patterson))). Based on Murphy, ALDOT and Cooper contend that ACI cannot maintain its action because the result would be the recovery of monetary damages from the State.

Murphy stated that “actions to recover money damages from the State ... are generally barred.” Murphy, 72 So.3d at 1208 (emphasis added). A valid inverse-condemnation action is a clear exception to this general bar. This Court has stated:

“An entity with the power of eminent domain has a legal duty to commence a condemnation action to exercise that power. See Ala.Code 1975, § 18-1A-32(a). However, when the State takes property without initiating a condemnation action and without paying just compensation to the property owner, the property owner has a cause of action for ‘inverse condemnation, by which he can recover just compensation for the taking. See, e.g., Ex parte Carter, 395 So.2d 65, 67 (Ala.1980).”

Armstrong, 779 So.2d at 1214 (emphasis added). The very point of an inverse-condemnation action is for the private-property owner to be able to recover compensation for the government’s use of his or her property that he or she would have received had the government initiated eminent-domain proceedings as it was supposed to do. It would make no sense for valid inverse-condemnation actions to fall outside § 14 immunity and yet to conclude that such a plaintiff could not recover damages from the State.

Because ACI stated a valid inverse-condemnation claim in its original complaint, the trial court had jurisdiction to entertain ACI’s amended complaint in which it modified its claim for injunctive relief by alleging that Cooper acted fraudulently, in bad faith, beyond his authority, or under a mistaken interpretation of law. Specifically, ACI alleged in its amended complaint that

“ALDOT, by and through [Cooper], in his representative capacity, acted fraudulently], in bad faith, beyond his authority, or in a mistaken interpretation of law, by employing Hydraulic control measures with knowledge that its measures would necessarily involve the discharge of TCE-laden water onto ACI’s property; by failing to seek or obtain permission or consent from ACI prior to discharging TCE-laden water onto ACI’s property; and by taking ACI’s property and thereby obtaining and taking a draining easement without [AL-DOT’s] seeking or obtaining permission or consent from ACI.”

At a minimum, under the facts presented by ACI, it is possible for ACI to maintain a claim that ALDOT, through Cooper, acted in bad faith. ACI stated in its complaint that ALDOT had been pumping water onto ACI property since April 2009 and that in April 2010 ACI had demanded that ALDOT immediately cease doing so but that ALDOT continued to do so. As of the date of the trial court’s order, July 27, 2011, the evidence was that ALDOT had not stopped pumping water onto ACI’s property, meaning that ALDOT had continued its action for nearly a full year after ACI demanded it stop doing so. Accordingly, sufficient facts were presented to state a claim of bad faith.

Because ACI stated a viable claim for injunctive relief based on allegations of bad faith, the trial court did not err in denying ALDOT and Cooper’s motion to dismiss that claim as to Cooper. Whether ACI can show further grounds at trial for application of the injunction exception to immunity is a matter that should be addressed at trial.

IV. Conclusion

The trial court erred in denying the motion to dismiss ALDOT as a party to this action. Conversely, the trial court did not err in denying the motion to dismiss as to ACI’s inverse-condemnation claim against Cooper in his official capacity. Likewise, the trial court properly refused to dismiss ACI’s claim for injunctive relief against Cooper. Accordingly, we grant the petition for a writ of mandamus in part and deny it in part.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

PARKER and WISE, JJ., concur.

MOORE, C.J., and BOLIN, SHAW, and BRYAN, JJ., concur in the result.

STUART, J., recuses herself.

BOLIN, Justice

(concurring in the result).

I concur with the main opinion that Asphalt Contractors, Inc. (“ACI”), stated a valid inverse-condemnation claim against the Alabama Department of Transportation (“ALDOT”) based on its allegations, among others, that ALDOT appropriated ACI’s property for public use; that AL-DOT, through John R. Cooper, its director, physically pumped chemically tainted water onto ACI’s property; and that ALDOT did all of these things without initiating eminent-domain proceedings. As stated below, however, my concurrence is based on a different rationale than that of the main opinion; therefore, I concur in the result.

ALDOT claimed that ACI did not state a valid inverse-condemnation claim because it failed to allege that ALDOT had committed an actual physical taking of ACI’s property. As the main opinion states: “ACI has claimed that ALDOT injured its property through the pumping of TCE-laden water onto its land.” 148 So.Sd at 736. See Willis v. University of North Alabama, 826 So.2d 118 (Ala.2002)(holding that an inverse-condemnation claim requires a physical taking of property).

My rationale in this writing is a reiteration of the opinion expressed in my recent dissent in M & N Materials, Inc. v. Simpson, 143 So.3d 1, 50-51 (Ala.2013) (on application for rehearing) (Bolin, J., dissenting from the denial of rehearing and joining Justice Bryan’s special writing), that the Willis decision was wrongly decided and should be overruled. Inverse condemnation is the taking of private property for public use without formal condemnation proceedings and without just compensation being paid by the governmental agency or entity that has the power of condemnation. See Foreman v. State, 676 So.2d 303, 305 (Ala.1995), overruled on other grounds by Willis. This Court’s holding in Foreman allowed for the possibility of compensation under Alabama’s general eminent-domain provision, § 23, Alabama Constitution of 1901, for injuries to property that were not physical in nature. Foreman, however, was subsequently overruled by Willis on the ground that § 23 requires an actual physical taking of property.

In Willis, Donald Willis, the plaintiff, claimed that a multilevel parking deck being built across the street from his property “damaged his property and caused the value of his property to decrease substantially.” Willis, 826 So.2d at 119 (emphasis added). There is no significant difference between ACI’s assertion in its inverse-condemnation claim that its property was “injured” and Willis’s assertion in his inverse-condemnation claim that his property was “damaged.” Both allege a compensable damage, or injury, to property pursuant to the Alabama Eminent Domain Code, § 18-1A-1 et seq., Ala. Code 1975.

I again submit that § 23 does not require an “actual physical taking” by a con-demnor and that, accordingly, both Willis and ACI alleged a valid inverse-condemnation cause of action. Indeed, it appears that ACI tracked the express operative provision of § 18-1A-32, Ala.Code 1975, which states:

“(a) If property is to be acquired by a condemnor through the exercise of its power of eminent domain, the condem-nor shall commence a condemnation action for that purpose. A condemnor shall not intentionally make it necessary for an owner of property to commence an action in inverse condemnation, to prove the fact of the taking of his property.
“(b) The judgment and any settlement in an inverse condemnation action awarding or allowing compensation to the plaintiff for the taking or damaging of property by a condemnor shall include the plaintiffs litigation expenses.”

(Emphasis added.)

The property owner here, ACI, sought injunctive relief as well as damages based on its allegation that ALDOT, through Cooper, injured and/or damaged its property through the physical dumping of chemically tainted water onto the property. Rather than straining to allow ACI an inverse-condemnation remedy by a different route, the simple — and I submit proper — resolution of the “physical taking” versus “damaging” argument would be to admit that Willis was wrongly decided and to overrule it, allowing ACI and other similar plaintiffs to pursue their statutory remedy for damage to property under the plain, express language of § 18-1A-32.

BRYAN, J., concurs.

BRYAN, Justice

(concurring in the result).

I join Justice Bolin’s special writing. I write to emphasize my belief that Willis v. University of North Alabama, 826 So.2d 118 (Ala.2002), was wrongly decided and should be overruled. See my dissent in M & N Materials, Inc. v. Simpson, 143 So.3d 1, 54 (Ala.2013) (on application for rehearing) (Bryan, J., dissenting).

      . This Court has observed that "[t]hese actions are sometimes referred to as 'exceptions’ to § 14; however, in actuality these actions are simply not considered to be actions ' "against the State” for § 14 purposes.’ ” Alabama Dep’t of Transp, v. Harbert Int'l, Inc., 990 So.2d 831, 840 (Ala.2008) (quoting Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002)).

      . In their reply brief, ALDOT and Cooper contend for the first time that ALDOT’s action of pumping water into the South Pond and subsequently pumping water into the wetlands cannot be considered a "taking” because testimony in the hearing in the trial court concerning whether the trial court should issue a preliminary injunction indicated that in approximately six weeks from the date of the hearing ALDOT would be diverting the water to a different pond. As a result, ALDOT and Cooper argue, ALDOT’s action is not a "permanent invasion” of ACI's property. ALDOT and Cooper likewise argue for the first time in their reply brief that ALDOT did not damage ACI's property because testimony in the hearing indicated that no trace of TCE had been found in the water pumped into the South Pond. The evidence adduced thus far includes the testimony of Buddy Cox, who is in charge of the TCE cleanup project, to which ALDOT and Cooper refer. Cox stated that ALDOT was awaiting a permit from the Alabama Department of Environmental Management to begin pumping water into an alternate pond. Cox indicated that ALDOT expected the permit to be forthcoming in six weeks, but there was no evidence indicating that receiving the permit was a foregone conclusion or that the use of ACI's pond definitely would cease in six weeks. Further, even assuming a diversion of the water did occur in six weeks, according to ACI's facts, ALDOT's pumping of water into the South Pond has been ongoing for two years. As to the contention that no trace of TCE has been found in the South Pond, even if this is true, ALDOT's pumping of water into the South Pond still constitutes the use of ACI’s property for public use. In other words, an absence of TCE from the South Pond, alone, does not preclude ACI’s inverse-condemnation claim. As presented in this case, the issue whether the use of the ACI’s property fails to qualify as a "taking” on the ground that it was not a "permanent invasion” is not of such a nature that this Court should address either the legal or factual questions raised by this issue without both parties having had the opportunity to brief it properly. (In addition, the question may require some further degree of factual development in the trial court.) See generally Arkansas Game <& Fish Comm'n v. United States,—U.S.—,—, 133 S.Ct. 511, 521, 184 L.Ed.2d 417 (2012) (holding that government action need not be permanent to qualify as a taking for purposes of the Fifth Amendment to the United States Constitution but stating that " 'temporary limitations are subject to a more complex balancing process to determine whether they are a taking.’ " (quoting Loretto v. Teleprompter Manhattan CATV Carp., 458 U.S. 419, 435 n. 12, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982))).

      . We express no view on whether, assuming it prevails on its inverse-condemnation claim, ACI will be entitled to all the types of damages it has requested in its complaint. In Armstrong, this Court explained:
      "When the condemning authority seeks to acquire less than all of a parcel of property, the landowner is entitled to ‘the difference between the fair market value of the entire property before the taking and the fair market value of the remainder after the taking.’ Ala.Code 1975, § 18 — 1 A — 170(b)."
      779 So.2d at 1214 (also noting that "[t]he Legislature has provided that a property owner who prevails in an inverse-condemnation action is entitled to recover litigation expenses in addition to just compensation for the taking. See Ala.Code 1975, § 18-1A-32(b)”).

      . In their reply brief, ALDOT and Cooper contend that because ACI focused the arguments in its brief on the validity of its inverse-condemnation claim, ACI "abandoned" all other claims in its complaint. Petitioners' reply brief, p. 2. Citing Ex parte Turner, 840 So.2d 132 (Ala.2002), ALDOT and Cooper contend that ACI’s alleged "failure to respond to the arguments in [the petitioners’] mandamus petition compels this Court to accept the petition's arguments as true.” Petitioners' reply brief, pp. 2-3. We reject ALDOT and Cooper’s argument. ALDOT and Cooper misstate the rule in Turner. The Court in Turner explained that the respondent in that case, by failing to "file an answer and brief,” "did not comply with this Court’s order.” 840 So.2d at 134. The Court concluded that the respondent’s "failure to respond to the allegations in [the] petition for a writ of mandamus compels this Court to consider the averments of fact in [the] petition as true.” Id. at 134-35 (emphasis added). The Turner Court did not state that it was compelled to accept the petitioner’s arguments as true but that it had to accept the petitioner’s presentation of the facts in the-absence of any facts being presented by the respondent. This Court cannot simply accept a mandamus petitioner’s arguments as true regardless of the arguments (or lack thereof) presented by the respondent because “[t]he burden of establishing a clear legal right to the relief sought rests with the petitioner.” Ex parte Metropolitan Prop. & Cas. Ins. Co., 974 So.2d 967, 972 (Ala.2007). "A writ of mandamus is a drastic and extraordinary writ”; thus, it is incumbent upon ALDOT and Cooper, as the petitioners, to convince this Court that they are entitled to immunity under § 14 concerning each claim made by ACI even if ACI elected to present counterarguments for only one of its claims. Ex parte Simpson, 36 So.3d 15, 22 (Ala.2009). Furthermore, though in its brief ACI primarily focused on the validity of its inverse-condemnation claim, it also argued that the trial court had jurisdiction to consider its amended complaint — and therefore its claim for injunc-tive relief — because the original complaint contained at least one claim not barred by § 14.


author: BRYAN, Justice.

text:
    Ex parte BAY AREA PHYSICIANS FOR WOMEN. (In re Michelle White v. Bay Area Physicians for Women).
    1121069.
    Supreme Court of Alabama.
    Dec. 13, 2013.
    W. Christian Hines III of Starnes Davis Florie LLP, Mobile; and Michael A. Florie and Sybil V. Newton of Starnes Davis Florie LLP, Birmingham, for petitioner.
   BRYAN, Justice.

Bay Area Physicians for Women (“BAPW”) petitions for a writ of mandamus directing the Baldwin Circuit Court to vacate an order entered by that court on November 8, 2012, reinstating a medical-malpractice case filed against BAPW and transferring the case to the Mobile Circuit Court.

On November 1, 2012, Michelle White filed a complaint in the Baldwin Circuit Court seeking damages from BAPW and several fictitiously named defendants under the Alabama Medical Liability Act, § 6-5-540 et seq., Ala.Code 1975. Although the complaint was filed in the Baldwin Circuit Court, the heading of the complaint stated: “IN THE CIRCUIT COURT OF MOBILE COUNTY, ALABAMA.” Also, in the body of the complaint, White alleged that BAPW was located in Mobile County, that the events giving rise to the action had occurred in Mobile County, that venue was proper in Mobile County, and that the Mobile Circuit Court had jurisdiction of the action. On November 8, 2012, Baldwin Circuit Court Judge Langford Floyd entered an order dismissing White’s complaint without prejudice because it was “[f]iled in [the] wrong county.”

Later on November 8, White filed in the Baldwin Circuit Court a motion to reinstate the complaint and then to transfer the case to the Mobile Circuit Court, alleging (1) that her legal counsel accidentally filed the complaint in Baldwin County, (2) that the Baldwin Circuit Court did have subject-matter jurisdiction and in person-am jurisdiction of the case, (3) that BAPW had not filed a motion to dismiss the action, (4) that the statute of limitations on her claim had run since the case had been filed in the Baldwin Circuit Court, (5) that she would be prejudiced if the case were not reinstated, and (6) that “the issue” could be cured by reinstating the ease and transferring the case to the Mobile Circuit Court, pursuant to Rule 82(d)(1), Ala. R. Civ. P. On November 8, 2012, the Baldwin Circuit Court granted White’s motion, reinstated her case, and then transferred the case to the Mobile Circuit Court.

Five months later, on April 8, 2018, BAPW filed a motion in the Baldwin Circuit Court, seeking the dismissal of White’s case and asking the Baldwin Circuit Court to vacate its November 8, 2012, order reinstating the case and transferring the case to the Mobile Circuit Court. BAPW argued that the Baldwin Circuit Court could not reinstate the case and transfer it to the Mobile Circuit Court because it did not have in personam jurisdiction over BAPW at the time the November 8, 2012, order was entered because White had not perfected service of process upon BAPW at that time. Thus, BAPW argued, the order was void and due to be vacated. As an alternative form of relief, BAPW asked the Baldwin Circuit Court to dismiss the case, without prejudice, pursuant to Rule 4(b), Ala. R. Civ. P., because White had failed to perfect service on BAPW within 120 days after filing the complaint. On May 2, 2013, the Baldwin Circuit Court denied BAPW’s motion, and BAPW filed this petition for a writ of mandamus on June 13, 2013.

In its petition for a writ of mandamus, BAPW asks this Court to order the Baldwin Circuit Court (1) to vacate its May 2, 2013, order, in which the Baldwin Circuit Court denied BAPW’s motion to vacate the November 8, 2012, order and dismiss the case and (2) to vacate the November 8, 2012, order reinstating the case and transferring it to the Mobile Circuit Court.

“ ‘ “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)).”

Ex parte Chapman Nursing Home, Inc., 903 So.2d 813, 815 (Ala.2004).

The threshold question that must be decided in this case is whether BAPW’s petition is timely. Rule 21(a)(3), Ala. R.App. P., governs the time for filing mandamus petitions. It provides, in pertinent part:

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

BAPWs petition was filed within 42 days of the Baldwin Circuit Court’s May 2, 2013, order denying BAPWs motion to vacate its November 8, 2012, order and to dismiss White’s claim; thus, insofar as its petition challenges the May 2, 2013, order, it is timely. As noted above, in its motion, BAPW sought an order from the Baldwin Circuit Court vacating that court’s November 8, 2012, order reinstating White’s case and transferring the case to the Mobile Circuit Court. However, the Baldwin Circuit Court did not have authority to grant BAPW the relief it requested. In Ex parte Chapman Nursing Home, this Court explained:

“ ‘Once the transferor court has granted the motion to transfer the case and the file has been sent to, and docketed by, the transferee court, the transferor court cannot then change its mind and vacate or set aside its transfer order or order the case returned.’ Ex parte MedPartners, Inc., 820 So.2d 815, 821 (Ala.2001). The transferee court, likewise, cannot ‘retransfer’ the case to the county in which it was originally filed. Ex parte Tidwell Indus., Inc., 480 So.2d 1201 (Ala.1985). ‘The aggrieved party’s sole remedy in such a case is a petition for writ of mandamus directed to the transferor court.’ MedPartners, 820 So.2d at 821.”

903 So.2d at 815 (emphasis added).

Thus, in response to BAPWs April 8, 2013, motion, the Baldwin Circuit Court could not have “change[d] its mind” about transferring the case and vacated the November 8, 2012, transfer order. Thus, to the extent that BAPW requests a writ of mandamus ordering the Baldwin Circuit Court to vacate its May 2, 2013, order, we conclude that the Baldwin Circuit Court did not have authority to grant BAPW the relief it requested in that motion and, thus, that BAPW does not have a clear legal right to the relief it sought. Accordingly, BAPW’s petition for a writ of mandamus is due to be denied as to that relief.

Regarding that part of BAPW’s petition challenging the November 8, 2012, order, and requesting this Court to order the Baldwin Circuit Court to vacate that order, we conclude that BAPWs petition is untimely and must be dismissed. Pursuant to Ex parte Chapman Nursing Home, BAPWs “sole remedy” for relief from the Baldwin Circuit Court’s November 8, 2012, order reinstating the case and transferring it to Mobile Circuit Court was to file a petition for a writ of mandamus directed to the Baldwin Circuit Court. Such a petition should have been filed within 42 days of the Baldwin Circuit Court’s November 8, 2012, order. See Rule 21(a)(3). No petition was filed in that time. Instead, BAPW waited more than five months before seeking relief from the Baldwin Circuit Court’s order in that court.

It is possible that BAPW’s delay was because service of process had not been perfected and BAPW was unaware of the entry of the November 8, 2012, order until April 2013. Even if that were the case, however, the proper procedure for seeking review of the Baldwin Circuit Court’s November 8, 2012, order was to immediately petition this Court for a writ of mandamus directed to the Baldwin Circuit Court and to include in that petition “a statement of circumstances constituting good cause for [this Court] to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.” Rule 21(a)(3). This Court has held that such a statement is mandatory if the petition is filed beyond the presumptively reasonable time. See Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549 (Ala.2003).

BAPW did not include in its petition a statement of circumstances constituting good cause for this Court to consider its petition seeking to vacate the November 8, 2012, order, notwithstanding that it was filed more than seven months after the Baldwin Circuit Court entered the November 8, 2012, order. Accordingly, insofar as BAPW’s petition for a writ of mandamus seeks vacatur of the Baldwin Circuit Court’s November 8, 2012, order, it is due to be dismissed as untimely filed.

PETITION DISMISSED IN PART AND DENIED IN PART.

MOORE, C.J., and BOLIN, MURDOCK, and MAIN, JJ., concur.

      . The motion states that BAPW appeared "exclusively for the purpose of challenging sufficiency of process and service of process.”

      . The materials attached to BAPW’s petition indicate that the complaint was served on BAPW on April 12, 2013, approximately four days after BAPW had filed its motion to vacate or, in the alternative, to dismiss.

      . Included in the exhibits attached to BAPW's petition is the "Alabama SJIS Case Detail,” which indicates that the Mobile Circuit Court received and docketed the transferred case on November 13, 2012.

      . The mandamus petition is directed to the transferor court, even though the case is no longer pending in the transferor court. As Justice Lyons explained in his treatise Alabama Rules of Civil Procedure:

        " 'Where the trial court has improperly ordered a transfer, mandamus against the transferor court is an appropriate remedy, notwithstanding the fact that an order has been entered which moves the case to the transferee court. The transferee court lacks authority to consider a motion to retransfer an action to the county in which it was initially filed. Mandamus to the transferor court is the appropriate avenue for seeking redress of any error in the transfer.'
      "2 Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated § 82.4, p. 553 (3d ed. 1996) (citations omitted).”

        Ex parte MedPartners, Inc., 820 So.2d 815, 821 (Ala.2001).


author: PER CURIAM. MOORE, Chief Justice MURDOCK, Justice

text:
    Ex parte Cornelius NEWMAN. (In re Cornelius Newman v. State of Alabama).
    1120389.
    Supreme Court of Alabama.
    Dec. 20, 2013.
    David K. Hogg, Dothan, for petitioner.
    Luther Strange, atty. gen., and John C. Neiman, Jr., deputy atty. gen., and Jean A. Therkelsen, asst. atty. gen., for respondent.
   PER CURIAM.

WRIT QUASHED. NO OPINION.

STUART, BOLIN, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., and PARKER and MURDOCK, JJ., dissent.

MOORE, Chief Justice

(dissenting).

I dissent from the Court’s decision to quash the writ in this case. Cornelius Newman was convicted of first-degree robbery and was sentenced to 35 years in prison. In my view the trial court incorrectly permitted the Houston County prosecutor to try as a serious felony actions that should have been charged as one or more misdemeanors. By misconstruing the robbery and theft statutes, the Court of Criminal Appeals left undisturbed a serious miscarriage of justice. This theft-of-serviees case was improperly transposed into a robbery case when Newman brandished a weapon in a restaurant parking lot to avoid paying for a meal. Clearly Newman did not obtain by force property that was served to him in the restaurant, nor did he use force to compel acquiescence to the taking of food he had already eaten. Even the suggestion is ludicrous.

I would reverse the conviction imposed in the trial court because under Alabama law Newman did not commit first-degree robbery. Thus, his punishment far exceeds a sentence for theft of services and menacing or reckless endangerment, charges which would be applicable under the facts of this case.

I.

On November 7, 2010, Newman entered a Waffle House restaurant in Dothan, ate a meal, and left. Upon being told by his waitress that Newman had not paid the $8.00 bill for his food, two Waffle House employees confronted him in the parking lot of the restaurant. Newman claimed that other patrons had paid for his meal. Becoming belligerent, he retrieved a shotgun from the trunk of his car, pointed it in the direction of the employees, and began cursing and yelling. Without paying the $8.00, Newman drove off with the shotgun in his lap. Responding to a 911 emergency call from the restaurant, the police stopped Newman’s vehicle and arrested him a few blocks away from the Waffle House.

A Houston County grand jury indicted Newman for first-degree robbery under § 13A-8-41, Ala.Code 1975. Although the State drafted the indictment to allege a theft of United States currency, namely the $8.00 owed for the meal, the trial court did not find the theft-of-currency allegation plausible and amended the indictment “to allege the proper item, which was a meal that was stolen,” namely “the food that was allegedly eaten without being paid for.”

A jury convicted Newman of first-degree robbery, a Class A felony, for stealing the meal and using a firearm to effectuate his escape. The court sentenced him to 35 years in prison. On appeal, Newman argued, among other things, that walking out of the restaurant without paying for a meal he had eaten was a theft of services, not a theft of property. Affirming his conviction, the Court of Criminal Appeals in an unpublished memorandum dismissed Newman’s argument, stating that “the food consumed by Newman were goods.” Newman v. State (No. CR-11-1408, Oct. 19, 2012), — So.3d—(Ala.Crim.App.2012) (table).

II.

“The standard of review in determining sufficiency of evidence is whether evidence existed at the time appellant’s motion for acquittal was made, from which the jury could by fair inference find the accused guilty.” Linzy v. State, 455 So.2d 260, 262 (Ala.Crim.App.1984). “In deciding this issue, we are required to view the evidence presented in the light most favorable to the state.” Id.

III.

“A person commits the crime of robbery in the first degree if he violates Section 13A-8-43 and he: (1) Is armed with a deadly weapon or dangerous instrument; or (2) Causes serious physical injury to another.” § 13A-8-41(a), Ala.Code 1975. Section 13A-8-43 states:

“(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
“(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”

By brandishing a weapon in the parking lot, Newman both used force and threatened the imminent use of force. “Wielding a gun ... constitutes both the use of force and the threat of force as a matter of law.” Glover v. State, 610 So.2d 1253, 1254 (Ala. Crim.App.1992). Thus, my analysis turns on whether Newman’s actions constituted “theft” within the meaning of § 13A-8-43.

Section 13A-8-43(a) is a single sentence that twice mentions a victimized “owner” and makes specific mention of “the property” in subsection (a)(2). Sections 13A-8-43(a)(1) and -43(a)(2) both require action, whether force or the threat of force, “against the person of the owner or any person present.” Chapter 8 of Title 13A (“Offenses Involving Theft”) defines “owner” as follows: “A person, other than the defendant, who has possession of or any other interest in the property involved, even though that interest or possession is unlawful, and without whose consent the defendant has no authority to exert control over the property.” § 13A-8-l(8), Ala. Code 1975 (emphasis added). Third-degree robbery is thus an attempted or accomplished taking of property from the owner of that property.

A further indication that use of the term “owner” in § 13A-8-43 limits its application to the theft of property is the prominent role of the term “owner” in the theft statutes.

“A person commits the crime of theft of property if he or she:
“(1) Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his or her property;
“(2) Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his or her property;

§ 13A-8-2, Ala.Code 1975 (emphasis added). Thus, the theft-of-property statute dovetails with the third-degree-robbery statute. Both focus on the victimized owner of property.

The trial judge correctly instructed the jury that the offense of robbery required the taking of property:

“[Robbery in the first degree] contains the following elements: First, that the defendant committed or attempted to commit a theft of property. Second, that the defendant used or threatened the use of force against another person in the taking or the escaping with the property. And, three, that the defendant was armed with a deadly weapon.”

(Emphasis added.) But the judge failed to instruct the jury that a meal ordered and consumed at a restaurant is not “property” in the contemplation of the theft and robbery statutes but is instead a service.

IV.

Alabama law recognizes that the act of walking out of a restaurant without paying for a meal is a theft of services:

“(a) A person commits the crime of theft of services if:
“(1) He intentionally obtains services known by him to be available only for compensation by deception, threat, false token or other means to avoid payment for the services; ...
“(b) ‘Services’ includes but is not necessarily limited to labor, professional services, transportation, telephone or other public services, accommodation in motels, hotels, restaurants or elsewhere, admission to exhibitions, computer services and the supplying of equipment for use.
“(c) Where compensation for services is ordinarily paid immediately upon the rendering of them, as in the case of motels, hotels, restaurants and the like, absconding without payment or bona fide offer to pay is prima facie evidence under subsection (a) that the services were obtained by deception.

§ 13A-8-10, Ala.Code 1975 (emphasis added).

By “absconding without payment” from the Waffle House restaurant, Newman, as a matter of law, committed theft of services, not theft of property. The definition section of the theft statutes defines “property” as:

“Any money, tangible or intangible personal property, property (whether real or personal) the location of which can be changed (including things growing on, affixed to, or found in land and documents, although the rights represented hereby have no physical location), contract right, chose-in-action, interest in a claim to wealth, credit, or any other article or thing of value of any kind.
“Commodities of a public utility nature, such as gas, electricity, steam, and water, constitute property, but the supplying of such a commodity to premises from an outside source by means of wires, pipes, conduits, or other equipment shall be deemed a rendition of a service rather than a sale or delivery of property.”

§ 13A — 8—1 (10), Ala.Code 1975. The definition of “property” does not include theft of services. See Victoria Ferreira, Criminal Offenses and Defenses in Alabama 465 (Thomson West 3d ed. 2003) (“Services are not included in the general definition of property [in § 13A-8-l(10) ].”). The second paragraph of the property definition, in fact, distinguishes between “a rendition of a service” and “a sale or delivery of property,” thus indicating that services are not property.

The Commentary to the theft-of-services statutes states that theft of services is a crime distinct from theft of property. “Alabama imposes sanctions upon a person who wrongfully obtains services, thereby recognizing the distinction between ‘property’ and ‘services,’ and the necessity for giving protection to the latter not usually included in larceny-like crimes.” Commentary to §§ 13A-8-10 through 13A-8-10.3. The Commentary further emphasizes the distinction between theft of services and theft of property: “ ‘Services’ are not included in the general definition of ‘property’ [;] thus no conflict in subject-matter exists between this section and theft of property.” Id. (emphasis added). Additionally, the Code section on civil liability for theft has separate sections on “theft of property consisting of goods for sale on the premises of a merchant” and intentionally defrauding an eating establishment by leaving without paying, again indicating that failure to pay for a meal at a restaurant is not a theft of property. § 6-5-271(a) and (c), Ala.Code 1975.

Because Newman did not use force to deprive an owner of property, he cannot be convicted of robbery. Walking out without paying a meal ticket of $500 or less is theft of services in the third degree, a Class A misdemeanor. § 13A-8-10.3. Newman’s threatening acts in the parking lot, of course, could have independently constituted other criminal or wrongful acts, such as reckless endangerment, a Class A misdemeanor, § 13A-6-24, Ala.Code 1975, or menacing, a Class B misdemeanor, § 13A-6-23, Ala.Code 1975. See Oliver v. City of Opelika, 950 So.2d 1229, 1233 (Ala.Crim.App.2006) (holding that pointing a pistol at a person with intent to frighten him is sufficient to support a charge of menacing).

V.

Even if we were to consider Newman’s eating a meal at the Waffle House and not paying for it to be a hybrid act consisting partly of a theft of services and partly of a theft of property, his act still would not come under the contemplation of the robbery statute. The meal served to Newman no longer existed after he ate it; thus, the property requirement of the robbery statute could no longer be satisfied at the time he displayed a gun in the parking lot. Dining in and then walking out, followed by brandishing a gun to avoid paying, lacks the necessary property element of the statute. See Ingram v. State, 878 So.2d 1208, 1213 (Ala.Crim.App.2003) (finding defendant guilty of robbery when he used force “in an attempt to flee with the stolen merchandise ” (emphasis added)). The use of force must coincide with compelling acquiescence to the taking of the property or the attempt to flee with it. Here the property no longer existed and the theft had ceased before force was used.

In Harris v. State, 451 So.2d 406 (Ala.Crim.App.1984), store personnel recovered a stolen cassette player before a perpetrator pulled a knife and ran from the store. The theft did not qualify as robbery.

“At the only time that he used force or threatened the imminent use of force against Mr. Pate, defendant was obviously attempting to escape or otherwise prevent his detention, arrest, and imprisonment, under circumstances that preclude the possibility of any intent on his part to compel acquiescence to the taking of or escaping with the property. He had failed in his attempted theft of the property. It was not on or about him at the time. He had taken it, but thereafter it had been taken from him, and it was not then within his power to take it again.”

451 So.2d at 410. Similarly, when the use of force “took place after the theft itself had clearly ceased,” the theft could not be “transposed” into robbery. Ex parte Sapp, 497 So.2d 550, 551 (Ala.1986). In Newman’s case, once he consumed the meal, he had no power to return it to the restaurant or to escape with it. Once eaten, the meal no longer existed as property within the meaning of the robbery statute. See § 13A-8-l(10). When Newman arose from his seat in the restaurant after eating his meal, his theft of property “had clearly ceased.” See State v. Jackson, 40 Or.App. 759, 763, 596 P.2d 600, 602 (1979) (concluding that robbery was not proven when “there were no fruits of the theft for defendant to use force to retain”).

VI.

This Court must respect the choices the legislature has made in enacting the theft-of-property, theft-of-serviees, and robbery statutes. As the Court of Criminal Appeals has explained:

“This court stands firm on its commitment to honor the separate functions of the legislature and the judiciary.
“‘[S]ince the power to declare what conduct is subject to penal sanctions is legislative rather than judicial, it would risk judicial usurpation of the legislative function for a court to enforce a penalty where the legislature had not clearly and unequivocally prescribed it. In other words, before a person can be punished his case must be plainly and unmistakably within the statute sought to be applied.’
“3 Singer, [Sutherland Statutory Construction ] § 59.03 [ (5th ed. 1992),] at p. 104-05....”

Sheffield v. State, 708 So.2d 899, 910 (Ala.Crim.App.1997). Because the robbery statute requires the theft of property, the statute does not apply to a theft of services. Further, here, the theft, even if partly of property, ceased once the meal was eaten. “A basic rule of review in criminal cases is that criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, i.e., defendants.” Clements v. State, 370 So.2d 723, 725 (Ala.1979).

VII.

Because the State presented insufficient evidence to satisfy the property element of the robbery statute, we should reverse the judgment of the Court of Criminal Appeals, in effect reversing Newman’s conviction. Because Newman was not tried on any other counts, we should render a judgment of acquittal on the first-degree-robbery charge. “Where a conviction is reversed solely on the basis of insufficiency of the evidence, retrial is barred because such a reversal is equivalent to an acquittal by the trial court.” Lindley v. State, 728 So.2d 1153, 1156 (Ala.1998) (citing Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)).

“It is a fundamental concept of criminal law that the State must prove all the elements of the offense charged against the defendant. When the State fails to present sufficient proof of all the elements, a conviction must be reversed and a judgment for the defendant must be rendered under the principles of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). ‘The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.’ Burks, 437 U.S. at 11, 98 S.Ct. at 2147.”

Ex parte Roberts, 662 So.2d 229, 232 (Ala.1995). See also Cottonreeder v. State, 389 So.2d 1169, 1175 (Ala.Crim.App.1980) (holding that, because the State “failed to prove a prima facie case, ... the case must be reversed and [a judgment] rendered”).

Had the trial court charged the jury on a lesser-included offense, such as third-degree theft, we could have entered a judgment on that offense.

“It is well established that if an appellate court holds the evidence insufficient to support a jury’s guilty verdict on a greater offense, but finds the evidence sufficient to support a conviction on a lesser included offense, it may enter a judgment on that lesser included offense, provided that the jury was charged on the lesser included ojfense.”

Ex parte Roberts, 662 So.2d at 232 (emphasis added). Because Newman was charged only with first-degree robbery and not with any ancillary or lesser-included offenses, the Court of Criminal Appeals should have rendered a judgment in his favor.

In my view the Court of Criminal Appeals should have reversed Newman’s conviction for first-degree robbery as inconsistent with a proper interpretation of the applicable statutes and rendered a judgment in his favor. Accordingly, I respectfully dissent from this Court’s decision to quash the writ.

MURDOCK, Justice

(dissenting).

Although I understand that it is difficult to have much sympathy for someone who “pulls” a gun on another person for any reason, I must agree with Chief Justice Moore that it is hard to avoid the conclusion that there is an injustice in the result in this case: a conviction for robbery and a 35-year prison sentence for the theft of a meal from a restaurant. Unfortunately, of course, fairness and the result required by the law in a given case are not always the same. That said, I specifically am compelled to dissent because in this case I believe they are the same. I hold this belief for several reasons.

As Chief Justice Moore notes at the outset of Part IV of his dissent, Alabama law expressly provides that “ ‘the crime of theft of services’ ” includes the theft of “ ‘accommodation in ... restaurants.’ ” 143 So.3d at 749 (quoting § 13A-8-10, Ala. Code 1975 (emphasis omitted)). It cannot be disputed that Cornelius Newman took, without paying for, “accommodation in a restaurant” and therefore could have been prosecuted for theft of services under § 13A-8-10. Newman, however, was not prosecuted under that statute but instead was prosecuted under § 13A-8 — 41(a), Ala. Code 1975, for the crime of robbery, which, for the reasons explained in Chief Justice Moore’s dissent, has as an element a theft of property under § 13A-8-43, Ala. Code 1975. Such a conviction for robbery can be sustained in this case only if we can conclude that the legislature intended that the failure to pay a restaurant bill could be treated as either the crime of theft of services or the crime of theft of property, or both. I do not believe that we can conclude that the legislature intended such dual treatment in a case of a theft from a restaurant any more than we can conclude that it intended such dual treatment for the theft of a can of goods from a shelf in grocery store (which are available on that shelf only because of the “service” rendered by store clerks in “stocking” them on that shelf).

Put more directly, the real question in this case is not whether the food served by a restaurant constitutes “property,” but whether the food was considered by the legislature to be part of the “accommodation” provided by the restaurant. In § 13A-8-10, the legislature chose to establish the crime of theft of services and, furthermore, to include within that crime the theft of “accommodation in ... restaurants.” § 18A-8-10(b), Ala.Code 1975. I believe the plain and “everyday” meaning of these provisions is that the legislature intended by these provisions to refer to a theft of whatever it is that restaurants provide to their customers. Common experience and the common understanding of the terms involved tell us that tangible food served to customers dining in a restaurant is part of the “accommodation in ... restaurants” to which the legislature was referring in § 13A-8-10.

In addition, this plain, everyday meaning is supported by dictionary definitions and the treatment of these same concepts in the statutory law and caselaw of this and other jurisdictions. The first definition of “accommodation” in Merriamr-Webster’s Collegiate Dictionary 8 (11th ed. 2003) is “[sjomething supplied for convenience or to satisfy a need: as a: lodging, food, and services or traveling space and related services. ...” Similarly, one definition of the term “accommodation” in Webster’s New International Dictionary of the English Language Unabridged 15 (2d ed. 1957) is “[wjhatever supplies a want or affords ease, refreshment, or convenience; anything furnished which is desired or needful; — often in pl[ural]; as, the accommodations (that is, lodgings and food) at a hotel.” (Final emphasis added.) These definitions indicate that the phrase “accommodation in ... restaurants” refers to both service of food to the customer and the food itself. Cf. § 13A-8-l(10), Ala. Code 1975 (defining “property” for purposes of theft and explaining the legislature’s intent that, although a delivered commodity constitutes property, the delivery of that commodity by a consumer is “deemed a rendition of a service rather than a sale or delivery of property”). See also State v. Rientjes, 130 Wash.App. 1029 (2005) (not reported in P.3d) (discussing a state statute making it a crime to obtain hotel or restaurant accommodations by fraud and applying the rule that where there is both a general and a special statute punishing conduct, an accused can be charged only under the special statute); Jankey v. Twentieth Century Fox Film Corp., 212 F.3d 1159, 1161 (9th Cir.2000) (discussing a federal statute defining “public accommodations” as including “a restaurant, bar or other establishment serving food or drink”); Gigliotti v. Wawa Inc., (No. CIV-A-99-3432, February 2, 2000) (E.D. Pa.2000) (not reported in F.Supp.2d) (discussing Title II of the Civil Rights Act of 1964 and its prohibition of discrimination in places of “public accommodation,” 42 U.S.C. § 2000a, and defining “public accommodation” as including “any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises”); Staron v. McDonald’s Corp., 872 F.Supp. 1092, 1093 (D.Conn.1994) (discussing the Americans with Disabilities Act and its applicability to “public accommodations” defined in the Act to include “a restaurant, bar or other establishment serving food or drink”); and State v. Hams, 6 Kan.App.2d 721, 722, 633 P.2d 1171, 1173 (1981) (discussing K.S.A. 36-206, which makes it a crime to obtain by fraud “food, lodging, or other accommodation at any restaurant”).

Finally, the foregoing understanding of the statutes in question is bolstered by the “fundamental rule that criminal statutes are construed strictly against the State.” Ex parte Hyde, 778 So.2d 237, 239 n. 2 (Ala.2000). As this Court stated in Ex parte Bertram, 884 So.2d 889 (Ala.2003):

“ ‘A basic rule of review in criminal cases is that criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, i.e., defendants. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert, denied, 265 Ala. 700, 90 So.2d 238 (1956).
“ ‘No person is to be made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused. Fuller v. State, [257 Ala. 502, 60 So.2d 202 (1952) ].’ ”

884 So.2d at 891 (quoting Clements v. State, 370 So.2d 723, 725 (Ala.1979), quoted in whole or in part in Ex parte Murry, 455 So.2d 72, 76 (Ala.1984), and in Ex parte Walls, 711 So.2d 490, 494 (Ala.1997) (emphasis omitted)). See also State v. Rientjes, supra (holding that Washington’s more specific theft-of-services statute governs over its more general theft statute where both might otherwise be applicable); People v. Fiene, 226 Cal.App.2d 305, 308, 37 Cal.Rptr. 925, 927 (1964) (invoking a similar rationale).

PARKER, J., concurs.

      . The Commentary to the theft-of-services statutes makes clear that items defined as services are not also property. See Part IV below.

      . The prosecutor explained: “[F]ood is not, like, an item, like, if a briefcase is stolen, where it can be returned in substantially the same or similar condition. And so, I admit that it is a little bit unique.”

      . The definition of "owner” in § 13A — 8—1(8) applies to § 13A-8-43. "The definitions contained in Section 13A-8-1 are applicable to this article unless the context otherwise requires.” § 13A-8-40(a), Ala.Code 1975. Article 2 ("Robbery") in Chapter 8 of Title 13A encompasses §§ 13A-8-40 through -44.

      . " 'In the course of committing a theft' embraces acts which occur in an attempt to commit or the commission of theft, or in immediate flight after the attempt or commission.” § 13A-8-40(b), Ala.Code 1975.

      . That the robbery statute is based on theft of property reflects its roots in the common law. Prior to the adoption of the Alabama Criminal Code (now Title 13A), the punishment for certain crimes was defined by statute, but not the offense itself. "For example, rape and robbery statutes provided only punishments and one had to look to the common law for a definition.” Joseph A. Colquitt, The Alabama Criminal Code — 25 Years and Counting, 56 Ala. L. Rev. 967, 971 (2005). Robbery was defined at common law as "the felonious and forcible taking of the property of another from his person, or in his presence, against his will, by violence or by putting him in fear.”, Lambert v. State, 48 Ala.App. 600, 602, 266 So.2d 812, 814 (Ala.Crim.App.1972). The taking of property was thus an integral element of common-law robbery.

      . Thus, for example, taking a soft drink off the shelf in a grocery store, drinking it, and not paying for it is a theft of property, but ordering the same soft drink in a restaurant, drinking it, and leaving without paying is a theft of services.

      . On the same principle, the use of force to escape apprehension after the stolen property has been abandoned does not elevate the theft to robbery. "[T]he use of force to merely effect an escape after the property taken has been abandoned does not supply the element of force necessary to make the taking a robbery.” Banks v. State, 575 So.2d 1244, 1245 (Ala.Crim.App.1991).