text:
    S.G. v. A.L. and L.L.
    2150717
    Court of Civil Appeals of Alabama.
    11/18/2016
   Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Curtis Wayne EDWARDS v. Samuel Ray HOLMES et al.
    2150720
    Court of Civil Appeals of Alabama.
    12/06/2016
   Dismissed.


text:
    J.W. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES
    2150722
    Court of Civil Appeals of Alabama.
    10/28/2016
   Affirmed.


text:
    J.W. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES
    2150737
    Court of Civil Appeals of Alabama.
    10/28/2016
   Affirmed.


text:
    Sylvia W. HUGHES v. Lesle NELSON and William W. Danley
    2150740
    Court of Civil Appeals of Alabama.
    11/18/2016
   Affirmed.


text:
    J.T., Sr. v. ELMORE COUNTY DEPARTMENT OF HUMAN RESOURCES
    2150741
    Court of Civil Appeals of Alabama.
    12/02/2016
   Affirmed.


text:
    J.T., Sr. v. ELMORE COUNTY DEPARTMENT OF HUMAN RESOURCES
    2150742
    Court of Civil Appeals of Alabama.
    12/02/2016
   Affirmed.


text:
    J.T., Sr. v. ELMORE COUNTY DEPARTMENT OF HUMAN RESOURCES
    2150743
    Court of Civil Appeals of Alabama.
    12/02/2016
   Affirmed.


text:
    A.T.E. v. R.N. and K.N.
    2150751
    Court of Civil Appeals of Alabama.
    11/18/2016
   Affirmed.


text:
    Paul KENNAMER, Sr., and Dorothy Kennamer v. REDSTONE FEDERAL CREDIT UNION
    2150753
    Court of Civil Appeals of Alabama.
    10/19/2016
   Dismissed.


text:
    Kimber Godwin SESSIONS v. Justin James Moorer SESSIONS
    2150757
    Court of Civil Appeals of Alabama.
    12/02/2016
   Dismissed.


text:
    Carla LONGMIRE v. CITY OF MOBILE
    2150759
    Court of Civil Appeals of Alabama.
    12/09/2016
   Affirmed.


text:
    Harrinda SMITH and Marion Street v. BIRMINGHAM CITY SCHOOL BOARD et al.
    2150760
    Court of Civil Appeals of Alabama.
    11/04/2016
   Affirmed.


text:
    Shawntea F. THOMAS v. Mack D. MOORE, Sr.
    2150762
    Court of Civil Appeals of Alabama.
    11/10/2016
   Affirmed.


text:
    T.S. and C.S. v. Z.S. and A.S.
    2150778
    Court of Civil Appeals of Alabama.
    10/20/2016
   Dismissed.


text:
    Wayne A. MILLER and Judith A. Miller, Trustees, or any Successors in Trust, under the Wayne A. Miller Living Trust, dated October 9, 1998, and Gene C. Howe, as Trustee of the Gene C. Howe Revocable Living Trust v. BALDWIN COUNTY BOARD OF ADJUSTMENT, Baldwin County Planning and Zoning Commission, and Lillian Volunteer Fire Department
    2150780
    Court of Civil Appeals of Alabama.
    12/16/2016
   Affirmed.


text:
    DRUMMOND CO. v. Steven SARGENT
    2150798
    Court of Civil Appeals of Alabama.
    11/09/2016
   Dismissed.


text:
    Charles L. MCELVEEN v. FAMILY SERVICES CENTER, INC.
    2150800
    Court of Civil Appeals of Alabama.
    11/04/2016
   Affirmed.


text:
    J.L.R. v. CHEROKEE COUNTY DEPARTMENT OF HUMAN RESOURCES
    2150805
    Court of Civil Appeals of Alabama.
    11/04/2016
    Reh. denied. 12/09/2016
   Affirmed.


text:
    W.B.D. v. W.D.M.
    2150822
    Court of Civil Appeals of Alabama.
    10/12/2016
   Dismissed.


text:
    J.C. v. COLBERT COUNTY DEPARTMENT OF HUMAN RESOURCES
    2150824
    Court of Civil Appeals of Alabama.
    12/16/2016
   Affirmed.


text:
    J.C. v. COLBERT COUNTY DEPARTMENT OF HUMAN RESOURCES
    2150825
    Court of Civil Appeals of Alabama.
    12/16/2016
   Affirmed.


text:
    Dolores L. STEPHENSON v. Suzanne CLINE, as personal representative of the Estate of Betty Carter, deceased
    2150832
    Court of Civil Appeals of Alabama.
    12/02/2016
   Affirmed.


text:
    ALABAMA MUNICIPAL INSURANCE CORP. v. Roderick L. JAMES
    2150833
    Court of Civil Appeals of Alabama.
    11/08/2016
   Dismissed.


text:
    Susanne Marie PRATT v. John Wesley PRATT
    2150838
    Court of Civil Appeals of Alabama.
    10/03/2016
   Dismissed.


text:
    D.R. v. STATE DEPARTMENT OF HUMAN RESOURCES
    2150840
    Court of Civil Appeals of Alabama.
    12/06/2016
   Dismissed.


text:
    C.M. v. A.J.
    2150844
    Court of Civil Appeals of Alabama.
    12/16/2016
   Affirmed.


text:
    Joshua Mack JOSSEY v. Laura Elaine JOSSEY
    2150848
    Court of Civil Appeals of Alabama.
    10/03/2016
   Dismissed.


text:
    Charles MCCORVEY v. CATHEDRAL PLACE APARTMENT CATHOLIC HOUSING MOBILE
    2150849
    Court of Civil Appeals of Alabama.
    12/06/2016
   Dismissed.


text:
    Naomi FORTNER v. WALMART DISTRIBUTION
    2150871
    Court of Civil Appeals of Alabama.

      10/20/2016

   Dismissed,


text:
    EX PARTE STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. (In re Sandra Henley v. State Farm Mutual Automobile Insurance Co.)
    2150886
    Court of Civil Appeals of Alabama.
    10/12/2016
   Transferred to Sup. Ct.


text:
    Ronnie Maurice HOUSE v. Kathy Martin ARMISTEAD
    2150891
    Court of Civil Appeals of Alabama.
    10/04/2016
   Dismissed.


text:
    Cedric SHUFFORD and Veronica Taylor v. John HOLLIDAY
    2150892
    Court of Civil Appeals of Alabama.
    10/12/2010
   Dismissed.


text:
    Jovita CARTER v. William SLOAN
    2150895
    Court of Civil Appeals of Alabama.
    10/18/2016
   Reh. denied.


text:
    W.C.P. v. CLAY COUNTY DEPARTMENT OF HUMAN RESOURCES
    2150897
    Court of Civil Appeals of Alabama.
    11/04/2016
   Affirmed.


text:
    CHIPIO WINDSHIELD REPAIR, LLC v. GEICO GENERAL INSURANCE CO.
    2150910
    Court of Civil Appeals of Alabama.
    10/12/2016
   Dismissed.


text:
    Oscar DRAPER and Jeraldine Draper v. Frank BARRETT et al.
    2150917
    Court of Civil Appeals of Alabama.
    10/11/2016
   Dismissed.


text:
    Jeffrey Justin STVAN v. Deborah Louise STVAN
    2150918
    Court of Civil Appeals of Alabama.
    12/08/2016
   Dismissed.


text:
    S.F. v. J.N. and C.N.
    2150919
    Court of Civil Appeals of Alabama.
    10/04/2016
   Dismissed.


text:
    Karen Garmon SINGLETON v. Jerry Wayne SINGLETON
    2150923
    Court of Civil Appeals of Alabama.
    12/05/2016
   Dismissed.


text:
    Kristi JONES v. Michael JONES
    2150924
    Court of Civil Appeals of Alabama.
    10/26/2016
   Dismissed.


text:
    David Edward HUNT v. Amy Lee HUNT
    2150925
    Court of Civil Appeals of Alabama.
    11/28/2016
   Dismissed.


text:
    Terrence WASHINGTON v. STATE EX REL. Spencer B. WALKER
    2150934
    Court of Civil Appeals of Alabama.
    10/17/2016
   Dismissed.


text:
    Tyrone OWENS v. Serena WATKINS
    2150944
    Court of Civil Appeals of Alabama.
    10/27/2016
   Dismissed.


text:
    Heather BAILEY v. David BAILEY
    2150947
    Court of Civil Appeals of Alabama.
    11/29/2016
   Dismissed.


text:
    E.J. v. V.B.
    2150952
    Court of Civil Appeals of Alabama.
    12/16/2016
   Affirmed.


text:
    C.S. v. W.G.
    2150966
    Court of Civil Appeals of Alabama.
    11/30/2016
   Transferred to Russell Cir. Ct. for trial de de novo pursuant to Rule 28(D), Ala. R.Juv.P.


text:
    FRISCO FOREST PRODUCTS, LLC v. C. Dwayne STOKES
    2150971
    Court of Civil Appeals of Alabama.
    12/14/2016
   Dismissed.


text:
    K.W. v. LIMESTONE COUNTY DEPARTMENT OF HUMAN RESOURCES
    2150974
    Court of Civil Appeals of Alabama.
    12/22/2016
   Dismissed.


text:
    Lawrence M. WHITE v. JAMES D. TALLENT FAMILY TRUST
    2150986
    Court of Civil Appeals of Alabama.
    12/06/2016
   Dismissed.


text:
    EX PARTE Angel Denise BEARDEN (In re Angel Denise Bearden v. Bradley Dwayne Bearden)
    2151000
    Court of Civil Appeals of Alabama.
    10/31/2016
   Mand. pet. denied.


text:
    Danny Oneal HILYER v. Joyce Marie HILYER
    2151006
    Court of Civil Appeals of Alabama.
    12/06/2016
   Dismissed.


text:
    B.P. and L.P. v. BALDWIN COUNTY DEPARTMENT OF HUMAN RESOURCES
    2151009
    Court of Civil Appeals of Alabama.
    11/01/2016
   Dismissed,


text:
    Michael B. DUBOSE v. Angie DUBOSE
    2151017
    Court of Civil Appeals of Alabama.
    11/23/2016
   Dismissed.


text:
    EX PARTE J.N. (In re J.N. v. The matter of K.N. and K.N., minor children)
    2160007
    Court of Civil Appeals of Alabama.
    11/02/2016
   Mand. pet. denied.


text:
    T.B.T. v. ETOWAH COUNTY DEPARTMENT OF HUMAN RESOURCES
    2160008
    Court of Civil Appeals of Alabama.
    11/08/2016
   Transferred to Etowah Cir. Ct. for trial de novo pursuant to Rule 28 (D), Ala. R.Juv.P.


text:
    EX PARTE Imran M. KHAN (In re: Imran M. Khan v. Alicia White Khan)
    2160012
    Court of Civil Appeals of Alabama.
    10/07/2016
   Mand. pet. denied.


text:
    Robert Larry RUSSELL v. Jacquelyn L. RUSSELL
    2160015
    Court of Civil Appeals of Alabama.
    10/11/2016
   Dismissed.


text:
    Charles CRAIG v. ALABAMA DEPARTMENT OF CORRECTIONS
    2160024
    Court of Civil Appeals of Alabama.
    12/02/2016
   Affirmed.


text:
    Zonnie WEAVER v. ALABAMA DEPARTMENT OF CORRECTIONS et al.
    2160025
    Court of Civil Appeals of Alabama.
    11/18/2016
   Affirmed.


text:
    Elyse HOOPER v. Colby HOOPER
    2160028
    Court of Civil Appeals of Alabama.
    12/15/2016
   Dismissed.


text:
    EX PARTE Irving JOHNSON (In re: Irving Johnson v. District Court and Circuit Judge, Dallas County)
    2160033
    Court of Civil Appeals of Alabama.
    11/23/2016
   Mand. pet. denied.


text:
    J.H. v. CULLMAN COUNTY DEPARTMENT OF HUMAN RESOURCES
    2160046
    Court of Civil Appeals of Alabama.
    11/09/2016
   Dismissed.


text:
    M.Y. v. PIKE COUNTY DEPARTMENT OF HUMAN RESOURCES
    2160053
    Court of Civil Appeals of Alabama.
    11/08/2016
   Dismissed.


text:
    James M. CLARK, Sr. v. Pamela S. CLARK
    2160056
    Court of Civil Appeals of Alabama.
    11/22/2016
   Dismissed.


text:
    EX PARTE T.M. (In re: C.M. v. T.M.)
    2160057
    Court of Civil Appeals of Alabama.
    10/26/2016
   Mand. pet. denied.


text:
    A.M. v. In re: A.D., J.D., Z.D., J.D., J.T., and R.D., minor children
    2160060
    Court of Civil Appeals of Alabama.
    11/22/2016
   Dismissed.


text:
    EX PARTE BIRMINGHAM ELECTRICAL CONTRACTORS, INC. (In re: Birmingham Electrical Contractors, Inc. v. Heather M. Jones)
    2160061
    Court of Civil Appeals of Alabama.
    10/28/2016
   Transferred to Sup. Ct. for lack of subject-matter jurisdiction.


text:
    EX PARTE Leonard E. DORSEY (In re: State ex rel. Jayla Metrice Dorsey)
    2160063
    Court of Civil Appeals of Alabama.
    11/10/2016
   Habeas corpus pet. dismissed.


text:
    EX PARTE Shelton L. FOSTER (In re: Shelton L. Foster v. Sheriff Dennis Meeks, Captain Preston Hughes, et al.)
    2160070
    Court of Civil Appeals of Alabama.
    12/16/2016
   Mand. pet. denied.


text:
    EX PARTE Steven G. MAPLES (In re: Teresa K. Maples v. Steven G. Maples)
    2160076
    Court of Civil Appeals of Alabama.
    11/02/2016
   Mand. pet. denied.


text:
    EX PARTE Jamie LAWRENCE (In re: Shirley McNeill v. Michael J. Brown, DVM, d/b/a Arab Veterinary Hospital, and Jamie Lawrence d/b/a Jamie Lawrence Stables)
    2160078
    Court of Civil Appeals of Alabama.
    10/28/2016
   Mand. pet. denied.


text:
    EX PARTE Yolanda TERRY (Social Worker, Macon County Department of Human Resources) (In re: Homer Lee Washington, as personal representative of the Estate of Mildred P. Collins v. Cherri Forrester et al.)
    2160080
    Court of Civil Appeals of Alabama.
    10/31/2016
   Transferred to Sup. Ct. for lack of subject-matter jurisdiction.


text:
    EX PARTE David Lamar JOHNSON (In re: David Lamar Johnson v. Jefferson S. Dunn et al.)
    2160090
    Court of Civil Appeals of Alabama.
    11/07/2016
   Maud. pet. denied.


text:
    EX PARTE Emily Hagan DAVIS (In re: Emily Hagan Davis v. William Van Davis)
    2160102
    Court of Civil Appeals of Alabama.
    11/10/2016
   Mand. pet. denied.


text:
    Daniel YOUNG, as representative of the Estate of Thomas G. Young v. Steven MATTHEWS and Tamela Matthews
    2160103
    Court of Civil Appeals of Alabama.
    12/14/2016
   Dismissed.


text:
    L.M. v. B.W. and B.W.
    2160122
    Court of Civil Appeals of Alabama.
    12/27/2016
   Dismissed.


text:
    ANDERSON AUTOMOTIVE, LLC v. Eugene KEELER
    2160124
    Court of Civil Appeals of Alabama.
    12/20/2016
   Dismissed.


text:
    Robert Landis WILLIAMS III v. Theresa M. WILLIAMS
    2160127
    Court of Civil Appeals of Alabama.
    12/27/2016
   Dismissed.


text:
    Michael T. CHAPPELL, Sr. v. Walter JONES
    2160128
    Court of Civil Appeals of Alabama.
    12/06/2016
   Transferred to Montgomery Cir. Ct.


text:
    EX PARTE Irving JOHNSON (In re: Irving Johnson v. J.R. Gaines, Circuit Judge)
    2160147
    Court of Civil Appeals of Alabama.
    11/30/2016
   Transferred to Sup. Ct. for lack of subject-matter jurisdiction.


text:
    J.W.B., JR. v. STATE EX REL. K.S.R.
    2160170
    Court of Civil Appeals of Alabama.
    12/27/2016
   Dismissed.


text:
    EX PARTE Johnny LAMPLEY, Jr. (In re: Nikkesha Tarrance Lampley v. Johnny Lampley, Jr.)
    2160177
    Court of Civil Appeals of Alabama.
    12/12/2016
   Mand. pet. denied.


author: THOMAS, Judge. THOMPSON, Presiding Judge,

text:
    Ex parte MARSHALL COUNTY DEPARTMENT OF HUMAN RESOURCES (In re: Marshall County Department of Human Resources v. J.V.)
    2150709
    Court of Civil Appeals of Alabama.
    July 1, 2016.
    See 233.So.3d 345.
    Luther Strange, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for petitioner
    E. Shane Hollaway, Guntersville, for respondent.
   THOMAS, Judge.

The Marshall County Department of Human Resources (“DHR”) seeks a writ of mandamus directing the Marshall Juvenile Court (“the juvenile court”) to terminate the “visitation” of J.V. (“the father”) with J.J.V. (“the child”). This is the second time the parties have appeared before this court. See Marshall Cty. Dep’t of Human Res. v. J.V., 203 So.3d 1243 (Ala.Civ.App. 2016).

On July 2, 2015, the juvenile court entered a judgment awarding legal and physical custody of the child to the father and ordering that- the transition of. custody of the child, who had been in the care of foster parents, be accomplished no.later than July 27, 2015. J.V., 203 So.3d at 1247. DHR appealed the juvenile court’s judgment to this court, arguing both that the award of custody to the father was not supported by the evidence and that such an immediate transition of custody was not in the child’s best interest. Id. at 1247-49. DHR sought, and this court granted, a stay of the transition of custody pending resolution of DHR’s appeal. Id. at 1247. On February 26, 2016, this court issued its opinion affirming the award of custody to the father but reversing the immediate transition of the child to the father’s custody. Id, at 1254. This court suggested that further transitioning be instituted so as to strengthen the relationship between the child and the father. Id. at 1254.

In compliance with our decision, the juvenile court entered an order on April 3, 2016, setting out the transition plan to which the parties had agreed, which included increasingly longer periods of visitation with a- custody-transition date of July 1, 2016. That order provided that the father was to have unsupervised visitation with the. child from May 27, 2016, to May 30, 2016. On May 26, 2016, DHR filed what it describes in its mandamus petition as a “Motion for Emergency Order to Cease Visitation” in the juvenile court, which, we presume, was supported by the report of Lois W. Petrella, a psychologist who had evaluated the child on May 13, 2016. Although we do not have the motion that DHR filed in the juvenile court before us, DHR appears to have sought an order terminating what it described as the father’s visitation based on allegations that the child was threatening to harm herself or to run away from the father’s home if forced to visit or to live with him. The juvenile court denied DHR’s motion. DHR then filed a motion to stay the impending May 2'7 through 30, 2016, visitation, which the juvenile court also denied.

DHR then filed an emergency motion to stay and a petition for the writ of mandamus in this court. The mandamus petition seeks , an order from this court compelling the juvenile court to “terminate visitation between the child and the father,” based on the premise that the juvenile court abused its discretion in not terminating visitation as requested. This court granted the stay pending resolution of this petition,, which we now deny.

“ ‘ “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 A.M.P., 997 So.2d 1008, 1014 (Ala.2008) (quoting Ex parte Perfection Siding, Inc,, 882 So.2d 307, 309-10 (Ala. 2003), quoting in turn Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)).

DHR cannot show a clear legal right to the relief it seeks in its petition. The visitation of which DHR now complains is not true visitation. The visitation awarded in the April 3, 2016, order is transitional visitation aimed at preparing the child for the transition of custody to the father. DHR’s request that we order the juvenile court to “terminate” the father’s visitation is in essence a request that we order the juvenile court to modify the award of custody to the father.

However, this court has affirmed the award of custody of the child to the father. J.V., 203 So.3d at 1254. DHR did not seek certiorari review of this court’s February 26, 2016, decision. The award of custody to the father'has therefore become the law of the case. Ex parte S.T.S., 806 So.2d 336, 341 (Ala.2001).

“The issues decided by an appellate court become the law of the case on remand to the trial court, and the trial court is not free to reconsider those issues. Murphree v. Murphree, 600 So.2d 301 (Ala.Civ.App.1992). According to the doctrine of the law of the case, ^whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the ease.’ Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala. 1987).”

Ex parte S.T.S., 806 So.2d at 341. The child’s custody is to be vested in the father at the completion of the transitional period, and thé juvenile court is not free to alter the custody award merely upon motion of the parties.

DHR’s allegations that the child has harmed herself and has threatened to run away from the father’s residence,-although nearly identical to testimony presented at the July 2015 evidentiary hearing before the entry of the July 2, 2015, judgment giving rise to the appeal- in J.V., are, in fact, allegations, presumably supported by new evidence, regarding the child’s, best interests. The juvenile court may consider those allegations and any such new evidence in a modification action. However, DHR’s attempt to present new evidence to alteré the award of custody in this action cannot succeed.'

Accordingly, DHR’s petition for the writ of mandamus is denied. This court’s stay order is lifted.

PETITION DENIED-

PITTMAN and MOORE, JJ., concur.

DONALDSON, J., concurs in the result, without writing.

THOMPSON, P.J., dissents, with writing.

THOMPSON, Presiding Judge,

dissenting.

In our February 26, 2016, decision,' this court'reversed that part of the judgment of the Marshall Juvenile Court (“the juvenile court”) transferring immediate custody of J.J.V. (“the child”) to J.V. (“the father”) because of our concern for the welfare’and safety of the child and to allow a more appropriate relationship between the father and the child to develop. Marshall Cty. Dep’t of Human Res. v. J.V., 203 So.3d 1243 (Ala.Civ.App.2016), This court held that the father and the child did not “.have a relationship strong enough to accomplish the transition of custody” and that “[b]oth the child and the father would be ill-served by a transition of custody at this time and under these circumstances.” Marshall Cty. Dep’t of Human Res. v. J.V., 203 So.3d at 1245.

Following this court’s decision in Marshall County Department of Human Resources v. J.V., supra, the parties arrived at' and the juvenjle court sanctioned a “visitation plan to transition to legal and physical custody” of. the child to the father* which began with supervised visitation-and gradually increased to unsupervised, overnight visitation. The ultimate goal of the transition was to have the father assume legal and physical custody of the child on July 1, 2016. The transition plan also provided that “[t]he child and [the] father shall continue to participate and cooperate with counseling with Dr. [Elaine] Eassa, a licensed psychologist.’’

In its petition for a writ of mandamus filed in this court, the Marshall County Department of Human Resources (“DHR”) alleges that certain events have occurred during the transition period, and it requests that this court order the juvenile court to “cease visitation in order to preserve the health and safety of the child.” In support of its petition, DHR presented evidence indicating that Dr, Lois W. Pe-trella, a licensed psychologist, evaluated the nine-year-old child in mid-May 2016. Dr. Petrella diagnosed the child as having post-traumatic stress disorder, among other things. The child cut herself with a can while visiting her father and attempted to shock or electrocute herself in order to avoid being forced to visit the father. This child has also stated that — at nine years of age — she has had thoughts of suicide when faced with having to visit the father. The evidence presented in Ex parte Marshall County DHR, supra, indicated that, because the Georgia home study'regarding the father’s home had not been approved, the Georgia child-protection agency would not monitor the family in connection with this case when the child visits the father or after the child is placed in the father’s custody in Georgia.

I do not agree with the main opinion when it states that “DHR’s request that we' order the juvenile court to ‘terminate’ the father’s visitation is in essence a request that we order the juvenile court to modify the award of custody to the father.” 234 So.3d at 521. I view DHR’s petition as requesting that this court order the juvenile court to exercise its power to protect the health and safety of the child. See § 12-15-138, Ala.Code 1975 (“The'juvenile court, at any time after a dependency petition has been filed, or on an emergency basis, may énter an order of protection or restraint to protect the health or safety of a child subject to the proceeding.”)..

Regardless of whether this court affirmed the initial award of custody to the father, the juvenile court possesses the power to halt visitation based upon the best interests ánd welfare of the child and to consider any properly filed modification action. Although I understand that the juvenile court is attempting tó meet one of the goals of the Alabama Juvenile Justice Act (“the AJJA”), § 12-15-101 et seq., Ala. Code 1975, by seeking to reunite the father and the child, I note that the AJJA requires that reunification be achieved in a manner that ensures the child’s safety. See § 12-15-101(b)(3), Ala.Code 1975 (A goal of the AJJA is “[t]o reunite a child with his or her parent or parents as quickly and as safely as possible when the child has been removed from the cústody of his or her parent or parents unless reunification is judicially determined not to be in the best interests of the child.”).

The evidence from the most recent psychological evaluation of the child is consistent with previous evidence indicating that the child has engaged in self-destructive behavior, and it appears to me that the situation has deteriorated rather than improved since the issuance of our last opinion. I can see no reason to alter my position that an immediate transfer of custody to the father is not presently in the best interests of the child. It is the function of the courts of this state to protect the children before them. J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1211 (Ala.Civ.App.2007); C.S. v. Mobile Cty. Dep’t of Human Res., 166 So.3d 680, 684 (Ala.Civ.App.2014). The juvenile court appears to have rejected the allegations that the father sexually abused the child. In any regard, whether the child needs protection from the father or not, it is clear that the child needs protection from her own potential conduct if she is forced to visit the father or transition to his home. Accordingly, I would grant DHR’s petition for a writ of mandamus and direct the juvenile court to end the visitation or at least temporarily suspend the transition until a more acceptable solution can be reached.

      . DHR has not provided a copy of that motion in the materials appended to its petition for the writ of mandamus.


author: THOMAS, Judge. DONALDSON, Judge, THOMPSON, Presiding Judge,

text:
    Valerie A. TAYLOR n/k/a Valerie Backus v. Lindsey V. WHEELER n/k/a Lindsey Woodard
    2150776
    Court of Civil Appeals of Alabama.
    December 16, 2016
    Rehearing Denied February 10, 2017
    Certiorari Denied April 21, 2017
    Alabama Supreme Court 1160416
    Charles P. Gaines of Gaines, Gaines & Rasco, P.C., Talladega, for appellant.

      Jonathan L. Brogdon of Church Brog-don, P.C., Pell City, for appellee.
   THOMAS, Judge.

On the night of December 6, 2007, an automobile driven by Valerie A. Taylor, now known as Valerie Backus," collided with an automobile driven by Lindsey V. Wheeler, now known as Lindsey Woodard. Lindsey and Valerie were injured. On December 2, 2009, Lindsey filed in the St. Clair Circuit Court a complaint against Valerie and against Lindsey’s uninsured-motorist carrier in which Lindsey requested an award of damages resulting from, she alleged, Valerie’s negligent, wanton, reckless, and willful conduct. Lindsey requested a jury trial. Valerie filed an answer in which she asserted that the accident had resulted from her inability to respond to a sudden emergency.

A jury trial was held. On February 9, 2016, the jury returned a verdict in favor of Valerie, and, that same day, the circuit court entered a judgment on the verdict. On February 15, 2016, Lindsey filed a postjudgment motion, seeking a new trial. After a postjudgment hearing, the circuit court entered an order (“the postjudgment order”) determining, among other things, that Lindsey had waived the right to complain" about any alleged confusion caused by a jury instruction regarding the sudden-emergency doctrine. The post-judgment order reads, in pertinent part:

“[Lindseyj’s last ground is that the jury’s verdict-was against, and inconsistent with, the great weight of the evidence-presented at trial. [Valerie] counters that ‘there, was more than enough “evidence which if believed justified the verdict” in this case.’ A review of the transcript of [Valeriej’s trial testimony ... shows the following:
“(i) the accident made the basis of this lawsuit was a rear-end collision ...;
“(ii) [Valeriej’s vehicle struck [Lind-seyj’s vehicle from the rear ...[;]
“(in) [Valerie] saw [Lindseyj’s brake . lights but was unable to stop in ' time or avoid the accident ...;
“(iv) [Lindseyj’s memory of the accident was not entirely clear . ..;
“(v) [Lindsey] did not stop in- emergency fashion ...; and
“(vi) [Valerie] testified as follows:
‘“Q. But you can see, and you would agree that [the accident] is your fault?
“[‘]A. I hit her, yes sir.
“[‘]Q. Okay. Did [Lindsey] do anything wrong?
“[‘]A. No sir.’
“In reviewing the Transcript, the only evidence to support a finding of a sudden emergency was the following testimony elicited from [Valerie] by her counsel on redirect examination:
“‘Q-. When [Lindsey’s attorney] was taking your deposition he asked.you do you remember seeing [Lindsey] in front of you and you said I do, she stopped suddenly, and I hit her. Is that what happened?
“[‘]A. Yes sir. ’
“[‘]Q. Okay. She Stopped suddenly, and you couldn’t?
“[‘]A. Yes sir.’
“This Court .is aware that jury verdicts are presumed to be correct and that a motion for new trial on the ground that a verdict is against the weight of the evidence should be carefully scrutinized.... However, the rule that jury verdicts are presumed to be correct does not override the rule that allows a trial court to grant a new trial if justice requires in cases where the verdict is wholly wrong. Clinton v. Hanson, 435 So.2d 48 (Ala. 1983). See also Glanton v. Huff[,] 404 So.2d 11 (Ala. 1981), and Gribble v. Cox, 349 So.2d 1141 (Ala. 1977). Clinton, Glanton and Gribble all involved rear-end collisions.
“Based upon the filings, the arguments of counsel, a review of-the transcript of the trial testimony of [Valerie], and the application of the foregoing, this Court is of the opinion that the verdict rendered herein was against the weight and preponderance of the evidence and, therefore, [Lindsey]’s Motion for [a new trial] is due to be granted. Accordingly, it is hereby ORDERED as follows: .
“1. [Lindsey]’s Motion for New Trial is hereby GRANTED.”

' Valerie filed a timely notice of appeal to this court on June 10, 2016. Wé transferred the appeal to our supreme court for lack of subject-matter jurisdiction; the appeal was transferred back;to this court pursuant to § 12-2-7(6), Ala. Code 1975. Valerie seeks our review, of whether the circuit court erred by granting Lindsey’s motion for- a new trial. ,

A trial court may grant a new trial when it “believes that justice demands that a new trial be granted on the weight and preponderance ground.” Jawad v. Grariade, 497 So.2d 471, 477 (Ala. 1986).

“In the landmark case Jawad v. Granade, 497 So.2d 471 (Ala. 1986), this Court established the standard of review it would apply in cases where a party appeals from an- order granting a motion for a new trial on the basis that the jury’s verdict-was ‘against the great weight or preponderance of the evidence’: ...
'“‘[A]n order granting a motion for neW trial oh the sole ground that the verdict is against the great weight or preponderance of the evidence will be reversed for abuse of discretion where on review it is easily; perceivable from the record that the jury verdict is supported by the evidence.’'
“Id. at 477.”

Scott v. Farnell, 775 So.2d 789, 791 (Ala. 2000).

Before the jury entered the courtroom, Lindsey’s attorney informed the circuit court that he neither intended to present any arguments nor expected to offer any jury instructions oh the claims of wantonness or willfulness. The majority of the testimony at the trial focused on damages for Lindsey’s injuries. Regarding the claim for damages based on negligence, Lindsey, who admitted more than once that she had an -incomplete memory of thé aécident, testified that, on the night of the accident, she had been completely stopped*'in “a pretty heavy amount of traffic-,” waiting for the vehicle affront of her to turn left-into :a- shopping-center entrance when- the accident occurred. Valerie testified' that” she had seen Lindsey’s brake lights but that she 'had been unable to - stop - in time to avoid the accident.-Valerie said: “I tried to stop, but it wasn’t successful^] and I hit her.” • In her deposition testimony, which she read aloud to the jury, Valerie testified that Lindsey had not stopped in'ah’“emergency fashion,” that she had' not ■ heard Lindsey’s tires squeal, and that Lindsey had done nothing wrong. However, as noted in the postjudgment order, Valerie replied “Yes, sir” to her attorney’s question: “[Lindsey] stopped suddenly, and you couldn’t?”

The circuit-court judge instructed the jury regarding the burden of proof, provided a definition for and listed the elements of the tort of negligence, and said that, if the accident had been caused by a sudden emergency, then the “verdict must be in favor of [Valerie].”

In this appeal — admittedly it is a close call — we conclude that the circuit court plainly and palpably erred in granting Lindsey’s motion for a new trial. In reaching our conclusion, we have considered the fact that the jury verdict is supported by some evidence of a sudden emergency; however, we are unconvinced that the jury’s verdict rested exclusively on that determination. It is equally plausible that the jury determined, based on the instructions given, that Valerie had not been negligent.

A review of the jury charge reveals that the circuit-court judge said:

“In order for you to decide whether or not [Valerie] is responsible, you must decide three issues: Number 1, whether [Valerie] was negligent; Number 2, whether [Lindsey] was harmed; and Number 3, whether or not [Valerie] is responsible for the harm that [Lindsey] suffered.
“If ... you do not find all three of these issues, then you must find- for [Valerie].
If you are reasonably satisfied from the evidence that the accident that is made the basis of this lawsuit was proximately caused by a sudden emergency, which was not the fault of [Valerie], then your verdict must be in favor of [Valerie].
“Let’s talk about negligence. Negligence is the failure to use reasonable care to prevent harm to oneself or to others. So negligence is the failure to use reasonable care. A person’s conduct is negligent when he or she does something that a reasonably prudent person would not do in a similar situation, or if he or she fails to do something that a reasonably prudent person would have done in that particular situation. The reasonably prudent person that we are talking about is the reasonably prudent person that will be the twelve of you sitting as a jury.
“Now, you must decide if [Valerie] was negligent in this case. There is no presumption of negligence arising out of the fact that an accident occurred.”

The circuit-court judge also substantially quoted Alabama Pattern Jury Instruction-Civil (“the APJI”) § 26.04 (3d ed. 2015), saying:

“Á driver must keep a lookout for others, and he or she must use reasonable care to anticipate the presence of others. A driver is negligent if he or she fails to see what was there to be seen, or otherwise fails to discover a vehicle or other person that he or she should have discovered in time to avoid hitting it.”

The record indicates that, during its deliberations, the jury requested a clarification of the definition of “negligence.” The circuit-court judge offered the language provided by the APJI § 28.01:

“Negligence is the failure to use reasonable care to prevent harm to oneself or others.
“A person’s conduct is negligent when (he/she) either does something that a reasonably prudent person would not do in a similar situation, or (he/she) she fails to do something that a reasonably prudent person would have done in a similar situation.”

It appears likely that, based on that language and the scant testimony provided, the jury of lay persons could have determined that Valerie had not been negligent.

Furthermore, there were conflicting statements regarding the circumstances of the accident: (1) Lindsey’s statement that she was completely stopped, (2) Valerie’s statement that Lindsey had not stopped in an “emergency fashion,” and (3) Valerie’s statement that Lindsey .had stopped suddenly. The resolution of conflicts -in the evidence rests solely with the trier of fact, in this case, the jury. See Sharrief v. Gerlach, 798 So.2d 646, 651 (Ala. 2001) (citing Jones v. Baltazar, 658 So.2d 420, 422 (Ala. 1995), citing in turn James v. Woolley, 523 So.2d 110, 112 (Ala. 1988)). We conclude that the jury properly exercised its duty to resolve conflicts, find the facts, and express its findings in its verdict.

Thus, the verdict was not against the great weight or preponderance of the evidence; therefore, we conclude that the circuit court abused its discretion by granting Lindsey’s motion for a new trial. The May 6, 2016, order of the circuit court granting a new trial is reversed, and the cause is remanded for the circuit court to vacate the May 6, 2016, order and to reinstate the February 9, 2016, judgment én-tered on the verdict.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Pittman, J., concurs.

Donaldson, J., concurs specially.

Thompson, P. J., dissents, with writing, which Moore, J., joins.

DONALDSON, Judge,

concurring specially.

I concur. The Alabama Supreme Court has held that “[djenying, and to a more limited extent granting, a motion for new trial is within the sound discretion of the trial court.” Carter v. Henderson, 598 So.2d 1350, 1354 (Ala. 1992). When a motion for a new trial is based on the trial judge’s perception of the weight of the evidence and not on procedural or substantive errors or irregularities, the trial court’s discretion is. more limited, and, if such a motion is granted/ our greatest deference should be in favor of the jury’s verdict.

In Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982), the United States Court of Appeals for the Fifth'Circuit explained the scope of the trial court’s discretion in deciding whether to set aside a jury’s verdict and grant a new trial:

“Th[e] deferential standard of - review has largely arisen from the consideration of cases in which motions for new trials have been denied. ... When the trial judge has refused to disturb a jury verdict, all the factors that govern our review of [the trial judge’s] decision favor affirmance. Deference to the trial judge, who has had an opportunity to observe the witnesses and to consider the evidence in the context of a living trial rather than upon a cold record, operates in harmony with deference to the jury’s determination of the weight of the evidence and the constitutional allocation to the jury of questions of fact. ... "When the trial judge sets aside a jury verdict and orders a new trial, however, our deference to [the trial judge] is in opposition to the deference due the jury. Consequently, in -this circuit as in several others, we apply a broader review to orders granting new trials than to orders denying them. ... And where a new trial is granted on the ground that the verdict is against the weight of the evidence, , we exercise particularly close scrutiny, to protect the litigants’ right to a jury trial.”

In Redd v. City of Phenix City, 934 F.2d 1211, 1215 (11th Cir. 1991), the United States Court of Appeals for the Eleventh Circuit noted:

‘When a [trial] court grants a new trial because the verdict is against the weight of the evidence, [the appellate] .court’s review will be extremely stringent to protect/a party’s right to a jury trial. ... This is particularly true when the new trial is premised upon sufficiency of the evidence as opposed to some factor which may have infected the .eyi-dence itself. ... When there is. some support for a jury’s.verdict, it is irrelevant what we or the . [trial] judge would have concluded.” .

In Lind v. Schenley Industries, Inc., 278 F.2d 79, 90 (3d Cir. 1960), the United States Court of Appeals for the Third Circuit observed:

“[W]here no undesirablé or pernicious element has occurred or been introduced into the trial and the trial judge nonetheless grants a new trial on the ground that the verdict was against the weight of the evidence, the trial judge in negating the jury!s verdict has, to some extent at least, substituted his judgment of the facts and the credibility of the witnesses for that of. the jury. Such an action effects,a denigration of the jury system and to the extent that new trials are granted the judge takes over, if he does not usurp, the prime -function of the jury as the-trier of the facts. It then becomes .-the dqty of the appellate tribunal to • exercise a closer degree of scrutiny and supervision than is the case where, a new trial is granted because of some undesirable or pernicious influence obtruding into the trial. Such a. close scrutiny is required in order to protect the litigants’ right to jury trial.”

In Tyler v. Davis, 196 So.3d 258 (Ala. Civ. App. 2015), a motor-vehicle-accident case, the jury returned a verdict for the plaintiff but awarded only $100 in damages. The-trial judge granted the plaintiff’s motion for a new trial because- the trial judge determined that the damages “ ‘were so inadequate as to indicate that the verdict [was] the result of passion, prejudice, or other improper motives such as the injection of [inadmissible evidence] and inapplicable defenses ....’” Id. at 259. The trial judge specifically listed the reasons why the verdict was tainted. This court reversed and ordered the jury verdict to be reinstated. I dissented and stated: “The trial judge personally observed and. heard the statements of counsel and the testimony of the witnesses, and the trial judge personally observed the reactions of the jurors. Because of the trial judge’s decidedly superior vantage point to make a finding as to whether those events improperly tainted the jury verdict, I would affirm.” Id. at 265 (Donaldson, J., dissenting). The trial judge’s determination that the jury verdict was tainted because of “undesirable or pernicious elements]” both perceived and articulated by the trial judge was due our greatest deference. See Redd, 934 F.2d at 1215 n.3 (“If a trial judge grants a new trial because of prejudice .,., then this court’s review will not be as rigorous. This pays tribute to our jury system. Our system of justice seeks a jury verdict arising from a trial free' of impropriety.”).'

In contrast, the jury verdict in this case was not found to be tainted but was set aside based on a judicial perception of the weight of the evidence to support it. Our standard of review is that “an order granting a motion for new trial on the sole ground that the verdict is against the great weight or preponderance of the evidence will be reversed for abuse of discretion where on review it is easily perceivable from the record that the jury verdict is supported by the evidence.” Jawad v. Granade, 497 So.2d 471, 477 (Ala. 1986). The trial court charged the jury that “[t]here is no presumption of negligence arising out of the fact that an accident occurred.” The jury was told that it was entitled to weigh the evidence and to assess the credibility of the witnesses. As noted by the main opinion, the trial court instructed the jury that the plaintiff had =to prove that the defendant was negligent before it could return a verdict for the plaintiff. The jury apparently was not, as charged by the trial judge, “reasonably satisfied from the evidence” that the defendant did “something that a reasonably prudent person would not do in a similar situation, or ... fail[ed] to do something that a reasonably prudent person would have done in a similar situation.” That decision was for the jury to make. See Jones v. Baltazar, 658 So.2d 420 (Ala. 1995) (holding that whether motorist whose vehicle struck another vehicle from the rear was negligent was a question for the jury). Accordingly, applying the standard of review, established in Jawad v. Granade, 497 So.2d at 477, it is “easily perceivable” that the verdict was supported by the evidence cited in the main opinion, even though the verdict is certainly subject to earnest disagreement.

THOMPSON, Presiding Judge,

dissenting.

I would affirm the trial court’s order granting Lindsey Wheeler’s motion for a new trial on the ground that the verdict was. against the great weight or preponderance of the evidence.

“‘The decision whether to grant or to deny a motion for a new trial rests within the sound discretion of the trial court.’ CSX Transp., Inc. v. Miller, 46 So.3d 434, 446 (Ala. 2010) (citing Jordan v. Calloway, 7 So.3d 310, 313 (Ala. 2008)).” CNH America, LLC v. Ligon Capital, LLC, 160 So.3d 1195, 1209 (Ala. 2013). Regarding the propriety of the granting of a new trial based on the sufficiency of the evidence, our supreme court has explained:

“In Jawad v. Granade, 497 So.2d 471 (Ala. 1986), this Court established the standard of review it would apply when a party appeals from an order granting a motiop for a new trial on the basis that the jury’s verdict was ‘against the great weight or preponderance of the evidence’:
[A]n order granting- a motion for a new trial on the, sole ground that the verdict is against the. great, weight or preponderance of the evidence will be reversed for abuse of discretion where on review it is easily perceivable from the record that the jury verdict is supported by the evidence.’
497 So.2d at 477.”

Beauchamp v. Coastal Boat Storage, LLC, 4 So.3d 443, 449 (Ala. 2008).

In granting Wheeler’s motion for a new trial,'the trial court found that “the verdict [in favor of the* defendant,- Valerie Taylor,] was against the great weight and preponderance of the evidence.” In reviewing the record in this case, I conclude that it is not “’easily perceivable from the record that the jury verdict is supported by the evidence.’” Id. (quoting Jawad v. Granade, 497 So.2d 471, 477 (Ala. 1986)). Accordingly, I believe that the trial court did not abuse its discretion in granting a new trial.

I would affirm the judgment of the trial court; therefore, I respectfully dissent.

Moore, J., concurs.

      . On September 5, 2014, the circuit court granted Lindsey’s uninsured-motoris’t carrier’s motion to opt" out of thé litigation,

      . One of Lindsey’s injuries appears to have been a blow to her head that had caused a concussion and, possibly, a short-term loss of consciousness upon impact. , :


author: MOORE, Judge.

text:
    RGIS INVENTORY SPECIALISTS and Fidelity and Guaranty Insurance Company v. George Allen HUEY et al.
    2150801
    Court of Civil Appeals of Alabama.
    December 16, 2016
    Rehearing Denied February 10, 2017
    Certiorari Denied April 14, 2017
    Alabama Supreme Court 1160426

      Jeremy T. England (withdrew 09/22/2016) and L. Pepper Cossar of Mar-kow Walker, P.A., Ocean Springs, Mississippi, for appellants.
    Jerald D. Crawford of Schwartz & Associates, P.A., Jackson, Mississippi, for George Allen Huey.
   MOORE, Judge.

RGIS Inventory Specialists (“the employer”) and Fidelity and Guaranty Insurance Company, the employer’s workers’ compensation insurance carrier (“the carrier”), appeal from an order denying their motion to intervene. We affirm.

Background

On January 19, 2009, while en route from Mississippi to Tennessee to perform his job duties for the employer, George Allen Huey (“the employee”) was injured in an automobile accident in Alabama. As a result of his injuries, the employee filed a claim for Mississippi workers’ compensation benefits. The Mississippi Workers’ Compensation Commission denied his claim, which denial was later affirmed on appeal. See Huey v. RGIS Inventory Specialists, 168 So.3d 1145 (Miss. Ct. App.), cert. denied, 152 So.3d 1176 (Miss. 2014).

On November 12, 2010, the employee commenced an action (“the third-party action”) in the Sumter Circuit Court (“the trial court”) against Kenneth Dale Connor, Barbers Milk, LLC, and an entity identified as Dean Foods. On January 4, 2016, while the third-party action remained pending, the employee filed a motion with the Mississippi Workers’ Compensation Commission requesting to reinstate his workers’ compensation claim, which request was heard, but not decided, on April 7, 2016. On April 28, 2016, the employer and the carrier filed in the trial court a motion to intervene in the third-party aetion, seeking a judgment declaring their subrogation rights as to any award the employee might receive in the third-party action or their right to set off any such award against their potential liability for workers’ compensation benefits. On May 24, 2016, the trial court denied the motion to intervene.

On June 9, 2016, the employee, Conner, Dean Foods, and Barber Milk filed a joint stipulation of dismissal based on the settlement of the claims in the third-party action; on June 17, 2016, the trial court entered an order “grant[ing]” the joint stipulation of dismissal. That same day, the employer and the carrier filed a notice of appeal to this court. Based on our determination that we lacked jurisdiction over the appeal, this court transferred the appeal to our supreme court, which subsequently transferred the appeal back to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

Discussion

Before proceeding to the merits, we first address the contention of the employee that the joint stipulation of dismissal renders the appeal moot. The employee cites Gallagher Bassett Services, Inc. v. Phillips, 991 So.2d 697, 700-01 (Ala. 2008), in which our supreme court dismissed an appeal from the denial of a motion to intervene. In Phillips, an employee settled a third-party action and filed a stipulation of dismissal. The next day, the workers’ compensation insurance carrier that had paid the employee workers’ compensation benefits filed a motion to interyene in the third-party action, which the trial court denied. Our supreme court held that the stipulation of dismissal had effectively ended the jurisdiction of the trial court to act on the motion to intervene and, thus, that its order denying the motion to intervene was void and not appealable.

In this case, unlike in Phillips, at the time the trial court denied the motion to intervene, it had jurisdiction over the third-party action, which had not yet been dismissed. Thus, the employer and the carrier have appealed from a valid order. The subsequent voluntary dismissal of the action does not render the appeal moot because the trial court could still exercise its jurisdiction and afford the employer: the declaratory relief requested. See, e.g., Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1511 n.2 (11th Cir. 1996) (holding that appeal from denial of motion to intervene was not moot despite settlement of underlying case .after motion to intervene had been denied); CVLR Performance Horses, Inc. v. Wynne, 792 F.3d 469, 475 (4th Cir. 2015) (discussing various federal-court decisions and concluding that.settlement and “dismissal of the underlying action does not automatically moot a preexisting appeal of the denial of a motion to intervene”); and Glass v. Birmingham Southern R.R., 905 So.2d 789, 794 (Ala. 2004) (recognizing that federal-court decisions “can serve as persuasive authority” for Alabama’s appellate courts).

Turning to the merits, we note that the right of the employer and the carrier to intervene in the third-party action involves a question of Alabama law because the third-party action arose from an accident occurring in this state. See Northeast Utils., Inc. v. Pittman Trucking Co., 595 So.2d 1351, 1354 (Ala. 1992) (holding that Alabama law applied to third-party action although injured employee had received workers’ compensation benefits under Connecticut law); Middleton v. Caterpillar Indus., Inc., 979 So.2d 53, 57 (Ala. 2007) (holding that Alabama procedural rules apply in all civil actions maintained in Alabama state courts). The appellate brief ified by the employer and the carrier does not cite any relevant Alabama legal authority providing the employer and the carrier with a right to intervene in the third-party action. The employer and the carrier also do not cite any Alabama legal authority the trial court allegedly violated in denying the motion to intervene. Instead, the employer and the carrier rely solely on Miss. Code Ann., § 71-3-71, Mississippi cases construing that statute, and Mississippi cases regarding the timeliness of an intervention motion, all of which are not applicable. “Rule 28(a)(10)[, Ala. R. App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If they do not, the arguments are waived.” White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008). Because the employer and the carrier have failed to present this court with an argument containing relevant legal authorities, we conclude that the employer and the carrier waived their argument that the trial court wrongfully denied the motion to intervene.

Conclusion

Based on the foregoing, we affirm the trial court’s judgment.-;

AFFIRMED.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.

      . In the motion to intervene below, this entity is also referred to as "RGIS, LLC.”

      . An order denying a motion to intervene is a final judgment that will support an' appeal. See Universal Underwriters Ins. Co. v. Anglen, 630 So.2d 441, 442 (Ala. 1993).


author: THOMAS, Judge.

text:
    L.M. v. SHELBY COUNTY DEPARTMENT OF HUMAN RESOURCES L.M. v. Shelby County Department of Human Resources
    2150658
    2150659
    Court of Civil Appeals of Alabama.
    January 20, 2017
    Certiorari Denied April 14, 2017
    Alabama Supreme Court 1160368 & 1160369

      Randall W. Nichols and Anne Lamkin Durward of Massey Stotser & Nichols, PC, Birmingham, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, -and Elizabeth L.Hendiix, asst. atty. gen., Department of Human Resources, for appellee.
   THOMAS, Judge.

R.G. gave birth to A.C. (“the daughter”) in December 2011. The daughter tested positive for cocaine at birth. K.R., R.G.’s aunt, adopted the daughter at that time. R.G. gave, birth to C.G. (“the son”) in September 2013, and, shortly afterward, the Shelby County Department of Human Resources (“DHR”) received.a report alleging that R.G. had been abusing drugs and neglecting the son,, and, in January 2014, it received a report alleging that K.R. had been hospitalized after overdosing on Valium and that she was unable to care for the daughter.

The Shelby Juvenile Court adjudicated the daughter and the son (“the children”) dependent and awarded their custody to DHR (case number JU-13-548.01 and case number JU-14-274.01). DHR first placed the children in foster care, and, later, it placed them with K.R.; however K.R. and C.M., K.R.’s boyfriend, absconded with the children and concealed their whereabouts from DHR from March 2014 until December 2015. In the meantime, L.M., who is the appellant and the adult daughter of C.M., filed in the-juvenile , court petitions (case number JU-13-548.03 and case number JU-14-274.02), seeking custody of the children. L.M., as explained in more detail infra, is a cousin of both R.G and K.R. In December 2015 K.R. died from a drug overdose,- the location of the children was revealed to DHR, the daughter disclosed that she had been sexually abused, and the children were temporarily placed iri the “Kirksey home” before being returned to foster care.

A total of nine actions were filed in the juvenile court. Five actions were filed by various parties regarding the son: case number JU-13-548.01, case number JU-13-548.02 (filed by K.R., who is deceased), case number JU-13-548.03, case number JU-13-548.04, and case number JU-13-548.05 (a termination-of-parental-rights action filed by DHR). Four actions were filed by various parties regarding the daughter: case number JU-14-274.01, case number JU-14-274.02, case number JU-14-274.03, and case number JU-14-274.04 (a termination-of-parental-rights action filed by DHR). The juvenile court consolidated the actions, and, on April 20, 2016, it entered one judgment in seven of the actions, but not in the termination-of-parental-rights actions. Ultimately, the judgment was certified as final, pursuant to Rule 54(b), Ala. R. Civ. P. The juvenile court concluded that L.M. is the children’s cousin; however, it denied L.M.’s custody petitions, noting that L.M. had had limited contact with the children. On May 3, 2016, L.M. filed timely notices of appeal. This court consolidated appeal number 2150658, regarding the son, and appeal number 2150659, regarding the daughter.

L.M. argues that she is a relative entitled to priority over a nonrelative in considering an award of custody of the children, and she argues that DHR “deliberately sabotaged” her ability to establish a relationship with the children. Thus, because she contends on appeal only that the juvenile court erred by denying her petitions for custody of the children, our review of these appeals is limited to issues arising from case number JU-13-548.03 (L.M.’s petition for custody regarding the son) and case number JU-14-274.02 (L.M.’s petition for custody regarding the daughter). See Rogers & Willard, Inc. v. Harwood, 999 So.2d 912, 923 (Ala. Civ. App. 2007) (“This court will not consider on appeal issues that are not properly presented and argued in brief.”).

“ ‘In matters concerning child custody and dependency, the trial court’s judgment is presumed correct on appeal and will not be reversed unless plainly and palpably wrong.’ Ex parte T.L.L., 597 So.2d 1363, 1364 (Ala. Civ. App. 1992); see also Ex parte R.E.C., 899 So.2d 272, 279 (Ala. 2004). Additionally, in Ex parte Anonymous, 803 So.2d 542 (Ala. 2001), the Alabama Supreme Court stated:
“ ‘The ore tenus rule provides that a trial court’s findings of fact based on oral testimony “have the effect of a jury’s verdict,” and that “[a] judgment, grounded on such findings, is accorded, on appeal, a presumption of correctness which will not be disturbed unless plainly erroneous or manifestly unjust.” Noland Co. v. Southern Dev. Co., 445 So.2d 266, 268 (Ala. 1984). “The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.” Hall v. Mazzone, 486 So.2d 408, 410 (Ala. 1986).’
803 So.2d at 546.”

J.W. v. C.H., 963 So.2d 114, 119 (Ala. Civ. App. 2007).

L.M. argues that, because she is “the only relative resource available,” the juvenile court erred by declining to award custody of the children to her. The goals of the Alabama Juvenile Justice Act, § 12-15-101 et seq., Ala. Code 1975, include “preserv[ing] and strengthening] the family of the child whenever possible” and providing “a preference at all times for the-preservation of the family.” § 12-15-101(b)(1) and (8), Ala. Code 1975. Section 12-15-314(a)(3)c., Ala. Code 1975, provides, in pertinent part, that a willing, fit, and able relative shall have priority for placement or custody over a nonrelative unless the juvenile court finds it not in the best interests of the child. Section 12-15-301(13) defines a “relative” as

“[a]n individual who is legally related to the child by blood, marriage, or adoption within the fourth degree of kinship, including only a brother, sister, uncle, aunt, first cousin, grandparent,. great grandparent, great-aunt, great-uncle, -great great grandparent, niece, nephew, grandniece, grandnephew, or a stepparent.”

L.M. does not contend that the children are her first cousins. L.M. testified that K.R. and a person identified as “D.” are her first cousins. (D. is R.G.’s mother.) Thus, the juvenile court correctly determined that the children are not L.M.’s first cousins; however, it incorrectly determined that' the children are related to L.M. “to the 4th degree of blood relations.” Although the finding that the children were within the fourth degree of kinship to L.M. is error, DHR, the prevailing party, could not have properly filed a notice of appeal regarding that error. “[W]here a judgment is wholly in a party’s favor and there is nothing prejudicial in the judgment no appeal lies to the prevailing party.” Personnel Bd. of Jefferson Cty. v. Bailey, 475 So.2d 863, 865-66 (Ala. Civ. App. 1985). The juvenile court’s error did not prejudice L.M. because its finding that she was related to the children “to the 4th degree of blood relations” was favorable to her position. -We cannot reverse the juvenile court’s judgment based on its erroneous conclusion that L.M. was a “relative” of the children, pursuant to § 12-15-301(13).

Next, L.M. argues that the juvenile court erred by concluding that she was not a suitable custodian because, she says, DHR failed to initiate a proper or adequate investigation regarding her ability to meet the needs of the children. L.M. asserts that DHR actively sabotaged her efforts to build a relationship with the children by, she says, denying her supervised visitation, which had been ordered by the juvenile court, in order to claim that, she was a stranger to the children. Indeed, in a December 12, 2015, shelter-care order, the juvenile court had ordered DHR to. provide supervised visitation between the children.and L.M. The transcript contains the following exchange that took place between the mother’s attorney and ' Star Pope, a DHR employee, at the trial;

“Q; You heard [L.M.] state that she had asked for visitation, and she was told that that was not a good idea, not a possibility. Did you hear her testimony of that.?
“A: Yes, I heard it.
“Q: Do you know who said that to her?
“A: She contacted me and requested visitation. I told her we would address it after the home study. When I did the home study and went , over all the reasons thaLDHR wasn’t supportive of her petition, I informed her that DHR wouldn’t be in agreement with visitation with her at. this point, .that the judge would have to make that decision.
“Q. Was there an order in January granting her visitation with these kids?
“A.vNo. There was an order in December at the shelter care saying that she may haver — it’s not prohibited but not that she was entitled to the visitation and there was an [Individualized Service Plan] in January that addressed it.”

Pope said that she had performed a second home study on L.M.’s home on March 9, 2016. Pope said that the home was adequate and that L.M. appeared to have the ability to financially support the children; regardless, L.M.’s home was “not found to be favorable for the placement of children,” and the home-study report includes an allegation that L.M. had been aware, of the location of the children during the time that DHR could not locate the children. According to Pope,. the daughter had reported knowing L.M., which had suggested to. DHR that L.M. had been in contact with the children, that she had deceived DHR, and that she had lacked protective capacity. L.M. testified that she had had some contact with C.M. while he and K.R. had had the children “in hiding,” that she had asked C.M. to let her have the children, but that C.M. had never told her where the children were located. L.M. said that she had not seen the daughter since October 2013, and she said: “I don’t think if I'was in a lineup [the daughter] could pick me out or if I was sitting in the room that she would even look at me like she knew me.” Pope testified that L.M. was not a proper custodian because either the children did not know L.M. or, if they • knew her, like the daughter had claimed, L.M. had participated in concealing them whereabouts. Pope said that L.M. intended to remain in contact with C.M. and. that L.M., had said that C.M. had done nothing to put the children at risk.

L.M, said- that her- husband had been at work and.unable to participate in the home study; however, she claimed that he had told her that an award of custody of the children was “fine with him.” Pope testified that she had contacted L.M.’s husband by telephone because she had needed information regarding L.M.’s husband’s income and that he had informed her that he did not think that the children belonged in his home and had politely refused to provide any additional information. Pope noted in the’ home-study report that L.M.’s husband had “respectfully decline[d] the desire to provide or confirm ... that he is not in agreement [with] the children being placed in the care and custody of his wife.” L.M.’s husband did not appear at the hearing because, according to L.M., he was at work.

Although we do not condone DHR’s unilateral decision to deny L.M.’s court-ordered supervised visitation, we conclude that the juvenile court could have properly determined that L.M. was not a-suitable custodian for reasons Other than her- lack of a relationship with the children. Despite L.M.’s denials, Pope’s testimony tended to demonstrate that L.M.’s husband had not supported her desire for an award of custody of the children and that, even though she had had contact with C.M. during the time, that DHR could not locate the children, L.M. had refused to disclose C.M.’s or the children’s whereabouts. The juvenile court apparently resolved the factual disputes in favor of DHR, and it concluded that custody of the children should not be awarded to L.M. Our standard of review prevents us from reweighing the evidence and substituting our judgment for that of the juvenile court. Ex parte R.E.C., 899 So.2d 272, 279 (Aa. 2004) (quoting Delbridge v. Civil Serv. Bd. of Tuscaloosa, 481 So.2d 911, 913 (Ala. Civ. App. 1985)) (stating that an appellate court does not “ ‘reweigh the testimony and substitute its own judgment for that of the trier of fact’ ”).

In conclusion, we reject L.M.’s argument that she is a relative of the children as that term is defined by § 12 — 15—301(13), and we affirm the judgment of the juvenile court, which declined to award custody of the children to her.

2150658 — AFFIRMED.

2150659 — AFFIRMED.

Thompson, P. J., and Pittman and Donaldson, JJ., concur.

Moore, J., concurs in the result, without writing.

      . On remand from this court, the juvenile court entered two orders certifying the judgment as final pursuant to Rule 54(b), Ala, R. Civ. P. When an action involves multiple claims or parties, Rule 54(b) gives the trial court the discretion to "direct the entry of a final judgment as to one or more but fewer than all of thé claims or parties.” If a judgment is properly certified as final pursuant to Rule 54(b), an appeal will lie from that judgment.

      . The judgment reads, in pertinent part:
      "[L.M.] is the biological 3rd cousin to the minor children and legally the 2nd cousin to [the daughter], [L.M.] is related to the minor children to the 4th degree of blood relations.”

      .L.M. purported to appeal the judgment regarding case number JU-13-548.01, case number JU-13-548.02, case number JU-13-548.03, case number JU-13-548.05, case number JU-13-274.01, case number JU-13-274.02, and case number JU-13-274.04. We have restyled the appeals to accurately reflect from which actions her appeals arise.

      . Section 12-15-301 was amended by Act No. 2016-129, Ala. Acts 2016, effective July 1, 2016. Before the amendment, the definition of "relative” was found in § 12-15-301(11); as part of the amendment,’§ 12-15-301(11) renumbered as § 12-15-301(13).

      . See Alabama State Pers. Bd. v. Garner, 4 So.3d 545, 553-54 (Ala. Civ. App. 2008)(ex-plaining the method for computing the degrees of kinship). In this case, the datighter was adopted by BCR.; therefore, under the law, L.M.’s and K.R.'s grandparents are the daughter’s- great-grandparents. Counting the degrees of relationship between the daughter and the daughter’s and L.M.’s common ancestors, the daughter's great-grandparents, yields three degrees of relationship. Counting from the common ancestors, L.M.’s grandparents, to L.M. yields two additional degrees of relationship. Therefore, the daughter and L.M. are related to one another in the fifth degree. The son’s great-great-grandparents are L.M.’s grandparents.. Counting the degrees of relationship between the son and the son’s and L.M.’s common ancestors yields four degrees of relationship. Counting from, the common ancestors, L.M.’s grandparents, to L.M., the son’s great-great grandparents, yields two additional degrees of relationship. Therefore, the son and L.M. are related to one another in the sixth degree.


author: WELCH, Judge.

text:
    Ricky Lynn CLOUD v. STATE of Alabama
    CR-15-1156
    Court of Criminal Appeals of Alabama.
    December 16, 2016
    Rehearing Denied February 3, 2017
    Certiorari Denied April 14, 2017
    Alabama Supreme Court 1160409

      Ricky Lynn Cloud, pro se.
    Luther Strange, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
   WELCH, Judge.

Ricky Lynn Cloud appeals the Cullman Circuit Court’s summary dismissal of his Rule 32, Ala. R. Crim. P., petition for postconviction relief. The petition challenged his September 30, 1998, conviction for aggravated stalking, a violation of § 13A-6-91, Ala. Code 1975, and his resulting sentence of 20 years’ imprisonment.

This Court affirmed Cloud’s conviction and sentence on appeal in an unpublished memorandum issued on April 30, 1999. See Cloud v. State (No. CR-98-0145), 768 So.2d 1024 (Ala. Crim. App. 1999)(table).

In Forma Pauperis Application

Cloud filed an in Forma Pauperis Application, which was granted. We’note that Cloud’s application did not Comply with the requirement of Rule 32.6(a), Ala. R. Crim. P., that,

“[i]f the petitioner desires to prosecute the petition in forma pauperis, he or she shall file the ‘In Forma Pauperis Declaration’ at the end of the form. In all such cases, the petition shall also be accompanied by a certificate of the warden or other appropriate officer of the institution in which the petitioner is confined, stating the amount of money or securities on deposit to the petitioner’s credit in any account in the institution for the previous twelve (12) months, which certificate may be considered by the court in acting upon the petitioner’s application for leave to proceed in forma pau-peris. If the application to proceed in forma pauperis is granted, the filing fee shall initially be waived, but may be assessed as provided in Rule 32.7(e).”

(Emphasis supplied.)

The circuit court would not have abused its discretion if it had refused to consider the in forma pauperis application until Cloud had complied with the requirements of Rule 32.6(a), Ala. R. Crim. P., and supplied the certificate described above. Cf. Hyde v. State, 950 So.2d 344 (Ala. Crim. App. 2006).

We also note that the in forma pauperis application that was submitted contained Cloud’s statement that he received the sum of $49.00 per month, from his sister. (C. 3-4 and 30-31.)

Cloud’s statement showed that, iñ a year’s time, he had an income of $588.00 that he would have been able to use to pay the filing fee. This is appreciably more than the amount necessary to pay the filing fee for a Rule 32 petition in the Cull-man Circuit Court.

The circuit judge would not have abused his discretion if he had denied the request to proceed in forma pauperis for this reason. The judge could have issued an order requiring that the petitioner pay the requisite filing fee, or a portion of the it, prior to ruling on the petition. See Ex parte, Wyre, 74 So.3d 479 (Ala. Crim. App. 2011).

“[A]n inmate who has appreciably more than the amount necessary, to pay a filing fee deposited in his inmate account in the 12 months preceding the filing of an [In Forma Pauperis] request is not indigent as that term is defined in Rule 6.3(a), Ala. R. Crim. P. Wyre had $876.52 deposited to his account in that period — more than twice the amount necessary to pay the filing fee. Thus, he is not indigent.”

74 So.3d at 482.

Rule 32 Petition

The instant Rule 32 petition, Cloud’s fourth, was deemed filed on February 18, 2016, and was untimely. Cloud filed the standard Rule 32 form found in the appendix to Rule 32, Ala. R. Crim. P. Cloud selected the following constitutional grounds provided on paragraph 12 of the form: 12(A)(7) — conviction obtained by violation of the protection against double jeopardy; and 12(A)(9) — denial of effective assistance of counsel. Cloud also selected the ground 12(B) — the court was without jurisdiction to render judgment or to impose the sentence.

Petitioner’s Claims

In his supplement to the petition, Cloud raised the following claims:

In claim (1), Cloud alleged that there was a material variance between the indictment and the proof at trial because he argues, the protection order that formed an element of the offense was moot.

. In claim (2), Cloud alleged that the prosecutor committed misconduct when she expressed her personal belief that Cloud was guilty by saying: “Don’t let a murder be the stopping of Rickey Lynn Cloud, find him guilty because he is.”

In claim (3), Cloud alleged that his protection against double jeopardy was violated because he was tried for stalking for allegedly violating the same protection order on two different occasions.

In claim (4), Cloud alleged that his trial counsel was ineffective for failing to object to: (a) the indictment on the ground alleged in his first claim;' (b) the prosecuto-rial misconduct alleged in his second claim; and, (c) the double jeopardy violation described in his third claim.

Cloud later filed a motion to amend the petition, which was denied by the circuit court.

State’s Response

The State filed a motion to dismiss, asserting that the claims were procedurally barred by: Rule 32.2(a)(4), because they could have been, but were not, raised on direct appeal; Rule 32.2(b), because they were presented in a prior petition, or could have been presented in a prior petition, and Cloud failed to aver good cause why they could not have been presented in the prior petition; and, Rule 32.2(c), because the claims were raised in an untimely petition. The State further pleaded that the claims were not - meritorious, that they failed to state a claim for which relief could be granted, and that they were not pleaded with the specificity required by Rule 32.7(b).

The State alleged that it was appropriate to sanction Cloud for filing repetitive, frivolous petitions. The State attached as exhibits the four unpublished memorandums of this court — one issued in Cloud’s direct appeal and three issued after the appeal of the dismissal of each of his prior Rule 32 petitions.

Circuit Court’s Order

The circuit court issued ah order dismissing the petition and finding that claims 1, 2, and 3 were nonjurisdictional and were precluded by Rules 32.2(a)(4) and 32.2(c); that claim 4 was procedurally barred by Rule 32.2(d), because the petition raised an ineffective-assistance-of-counsel claim that was untimely; and that the entire petition was procedurally barred by Rule 32.2(b).

The court also imposed sanctions for further frivolous Rule 32 filings:

“The Court further finds that because [Cloud] has previously filed multiple post-conviction petitions in this case, which have been summarily dismissed and affirmed on appeal, it is necessary to adopt reasonable measures to prevent further frivolous litigation by [Cloud] that waste limited judicial resources. It is therefore ORDERED and DECREED as follows:
“1. [Cloud’s] Petition is Denied and [Cloud] is hereby expressly enjoined from filing any new petition, motion or pleading relating to any claim that he has previously raised on appeal or in a post-conviction petition -for relief.
“2. In the event [Cloud] files any other post-conviction motion, petition or pleading with this Court he shall execute a sworn affidavit expressly certifying that the claims being raised-are new claims that have not previously been raised by him in any previous filing.
“3. In the event [Cloud] files any other post-conviction motion, petition or pleading with this Court he shall submit with his new petition or motion a summary of all previous post-conviction motions or petitions filed by him that relate to his conviction in the above case. The summary shall include the date of each filing; the claims made by him in each previous filing; the relief requested by him in each filing; a short statement as to the decision of the trial court with respect to each claim and, if the decision was appealed, the ruling of any appellate court.
“4. Any request filed by [Cloud] to proceed in forma pauperis shall include the information required in the above paragraphs ánd a listing of any monies [Cloud] has had ‘on the books,’used to purchase any food or items, or in any account of the Alabama Department of Corrections for the 9 previous months.
“5. [Cloud] shall be subject to the contempt power of this Court in the event he is found in the .future to -haye submitted a false affidavit to the Court or -to have-, willfully violated any other provision of this order. Upon a finding of contempt, [Cloud] -may be punished as provided by law and this puiiishment may include an additional period of incarceration for contempt after completion of his sentence in the present case.
“6. [Cloud] shall be served with a.copy of this order by personal service with return made to the Cullman County Circuit Court Clerk.
“The filing restrictions placed on [Cloud] by this order have been narrowly tailored to prevent continued frivolous filings by [Cloud] but are designed to allow him access. to the court in the event he has meritorious claim. In the event any future filing by [Cloud] does not conform to the procedure set forth herein, the court will not grant any application to proceed in forma pauperis and the Clerk is directed and hereby ORDERED to refuse to accept a filing fee for any future filings until [Cloud] complies with the filing restrictions imposed herein.”

(C. 92-94.)

Standard of Review

When reviewing a circuit court’s summary dismissal of a postconviction petition, ‘“[t]he standard of review this Court uses ... is whether the [circuit] court abused its discretion.’ ” Lee v. State, 44 So.3d 1145, 1149 (Ala. Crim. App. 2009) (quoting Hunt v. State, 940 So.2d 1041, 1049 (Ala. Crim. App. 2005)). However, “when the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo. State v. Hill, 690 So.2d 1201, 1203 (Ala. 1996).” Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001).

Moreover, except for utilizing on appeal a preclusionary bar under circumstances that are not present in this case, “when reviewing a circuit court’s rulings made in a postconviction petition, we may affirm a ruling if it is correct for any reason.” Bush v. State, 92 So.3d 121, 134 (Ala. Crim. App. 2009).

Appeal

On appeal, Cloud reasserts the claims raised in his petition. In claim (1), Cloud alleged that there was a material variance between the indictment filed on July 2, 1998, and the proof at trial because the protection order that Cloud was charged with violating as an element of aggravated stalking was moot and had expired.

The indictment was attached to Cloud’s petition as Exhibit 1 and charged:

“The Grand Jury of said county charge that, before the finding of this indictment, RICKEY LYNN CLOUD, whose name is otherwise unknown to the Grand Jury, did, intentionally and repeatedly follow or harass another person, to-wit: GLENDA CLOUD and did make a credible threat, either expressed or implied, with the intent to place the said GLENDA CLOUD in reasonable fear of death or serious bodily harm, and in doing so violated a court order or injunction, to-wit: Protection from abuse order dated November 1996, and Cull-man County Circuit Court case number CC97-584, dated March 3,1998, in violation of title 13A-6-91 of the CODE OF ALABAMA.”

(C. 24.)

This claim is in essence a claim that the evidence was insufficient to convict Cloud of aggravated stalking. It is well settled that postconviction claims challenging the sufficiency of the State’s evidence are nonjurisdictional and subject to the grounds of preclusion set forth in Rule 32.2, Ala. R. Crim. P. See Ex parte Batey, 958 So.2d 339, 343 (Ala. 2006) (“Alabama courts have repeatedly held that an argument about the adequacy of the State’s evidence is not jurisdictional and is therefore barred by Rule 32.2.”).

Moreover, although not a basis for the circuit court’s dismissal, a simple review of Cloud’s Rule 32 petition convinces this court that he failed to meet his burden to plead the full factual basis for his claims. Ala. R. Crim. P. 32.3; 32.6(b); see McNabb v. State, 991 So.2d 313, 335 (Ala. Crim. App. 2007)(this court may sua sponte apply the specificity requirement contained in Rule 32.6(b), Ala. R. Crim. P.). In Boyd v. State, 913 So.2d 1113 (Ala. Crim. App. 2003), this court stated:

“Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief. In other words, it is not the pleading of a conclusion which, if true, entitlefs] the petitioner to relief. It is the allegation of facts in pleading which, if true, entitle[s] a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala. R. Crim. P., to present evidence proving those alleged facts.”

913 So.2d at 1125 (internal citation and quotations marks omitted).

Cloud did not allege in his petition when the instance of aggravated stalking he was accused of committing occurred, nor did he allege any facts regarding the effect of the order issued by the Cullman Circuit Court in case no. CC-97-584, dated March 3, 1998.

Therefore, the circuit court properly found that this claim was precluded under Rules 32.2(a)(4), 32.2(b) and 32.2(c), and correctly dismissed it.

In claim (2), Cloud alleged that the prosecutor committed misconduct when she expressed her personal belief that Cloud was guilty by saying: “Don’t let a murder be the stopping of Rickey Lynn Cloud, find him guilty because he is.”

However, this claim is not jurisdictional, and it is therefore subject to preclusion under Rule 32.2. See, e.g., Sunday v. State, 857 So.2d 166, 169 (Ala. Crim. App. 2002)(“[Sunday’s prosecutorial-misconduct claim] is precluded because it could have been, but was not, raised at trial or on appeal”).

Therefore, the circuit court properly found that this claim was precluded under Rules 32.2(a)(4), 32.2(b), and 32.2(c).

In claim (3), Cloud alleged that he was subject to double jeopardy because he was tried for stalking based on violating the same protection order on two different occasions. .

This issue was raised in the direct appeal of his case and rejected by this court in its unpublished memorandum:

“On November 19, 1996, a trial court granted a Protection from Abuse' Order requiring Cloud to stop harassing his ex-wife and children. After many instances of harassment, on March 3, 1998, a grand jury indicted Cloud for aggravated stalking. Cloud pled, guilty to a lesser charge of attempted stalking and the trial court sentenced him to twelve months imprisonment, split to serve time already served and 2 years probation. The plea agreement also required Cloud to stay away from, and not telephone, his ex-wife, and to give up visitation rights to his children. Approximately ’two months later, Cloud telephoned his ex-wife and stated ‘[d]ead, dead, dead. Tonight.’ (R. 79.) A few minutes later, Cloud called back and stated ‘[fjire, burn. You are going to burn tonight, you fucking bitch.’ (R. 79.) The next morning Mrs. Cloud obtained a warrant and the police arrested Cloud. At trial, the trial court allowed evidence of1 harassment' and stalking that occurred prior to Cloud’s first conviction.
“Double jeopardy attaches in one of three ways: ‘a' second prosecution for the same'offense after an acquittal; a second prosecution for the same offense after a conviction; and multiple charges and punishments for the same offense.’ State v. Randall, 669 So.2d 223, 227 (Ala. Cr. App. 1995).
“Here, Cloud was not subjected to double jeopardy because he was not prosecuted for the same offense. In fact, after Cloud’s first conviction, Cloud kept' harassing his ex-wife. Specifically, Cloud made two death threats to his ex-wife. At trial, the State’s evidence of Cloud’s prior harassment history was admissible, to prove a credible threat and intent, which are elements of stalking.”

The circuit court correctly found that this claim was precluded- under Rule 32.2(a)(4), which procedurally bars claims that were raised on appeal.

In claim (4), Cloud alleged that his trial counsel was ineffective for failing to object to: (a) the indictment on the ground alleged in his first claim; (b) the prosecuto-rial misconduct alleged in his second claim; and, (c) the double jeopardy violation described in his third claim.

To prevail on a claim of ineffective assistance of counsel, the petitioner must ultimately prove (1) that counsel’s performance was deficient and (2) that the deficient performance actually prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

- Although couched in jurisdictional terms, Cloud’s ineffective-assistance claims are not truly jurisdictional and, therefore, are subject to the procedural bars of Rule 32, Ala. R. Crim. P. See, e.g., Cogman v. State, 862 So.2d 191, 192-193 (Ala. Crim. App. 2002) (a claim alleging ineffective assistance of counsel is not jurisdictional).

The circuit court properly dismissed this claim because it was procedurally barred under Rule 32.2(d), because the petition raised an ineffective assistance of counsel claim which was untimely, and under Rule 32.2(b), because it was raised, in a successive petition.

Moreover, because none of the three claims that form the basis for his allegation that his trial counsel was ineffective had merit, Cloud has failed to plead a meritorious claim of ineffective assistance of counsel. Counsel would' not be ineffective for failing to assert a meritless or baseless claim. See Patrick v. State, 680 So.2d 959, 963 (Ala. Crim. App. 1996); Hope v. State, 521 So.2d 1383, 1386 (Ala. Crim. App. 1988); Bearden v. State, 825 So.2d 868 (Ala. Crim. App. 2001).

Conclusion

A circuit court may summarily dismiss a petitioner’s Rule 32 petition pursuant to Rule 32.7(d), Ala. R. Crim. P.,

“[i]f the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition.”

See also Hannon v. State, 861 So.2d 426, 427 (Ala. Crim. App. 2003); Cogman v. State, 852 So.2d 191, 193 (Ala. Crim. App. 2002); Tatum v. State, 607 So.2d 383, 384 (Ala. Crim. App. 1992); Because the petitioner’s claims were precluded, or were without merit, summary disposition was appropriate.

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

AFFIRMED.

Windom, P.J., and Burke and Joiner, JJ.,-concur. Kellum, J., not sitting,

      . The indictment in CC-98-510 spells the appellant’s first name as "Rickey'' (C. 24), as does he in his filings. In the direct appeal of his conviction, he is denominated "Ricky.”

      . See Ex parte Brown, 164 So.3d 625 (Ala. Crim. App. 2014).

      . The Court of Criminal Appeals may take judicial notice of its own records. See Hull v. State, 607 So.2d 369, 371 (Ala. Crim. App. 1992); Ex parte Salter, 520 So.2d 213, 216 (Ala. Crim. App. 1987), Cloud raised this issue in his second Rule 32 petition. See Cloud v. State ( No. CR-02-0046), 880 So.2d 505 (Ala. Crim. App. 2010) (table).


author: PER CURIAM. PARIENTE, J.,

text:
    Marvin Burnett JONES, Appellant, v. STATE of Florida, Appellee.
    No. SC17-497
    Supreme Court of Florida.
    [January 22, 2018]
    Robert A. Norgard of Norgard, Nor-gard, & Chastang, Bartow, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, Florida, for Ap-pellee
   PER CURIAM.

We have for review Marvin Burnett Jones’s appeal of the circuit court’s order denying Jones’s motion filed .pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Jones’s motion sought relief pursuant to the United States Supreme Court’s decision in Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, — U.S. —, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). This Court stayed Jones’s appeal pending the disposition of Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, — U.S. —, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). After this Court decided Hitchcock, Jones responded to this Court’s order to show cause arguing why Hitchcock should not be dispositive in this case.

After reviewing Jones’s response to the order to show cause, as well as the State’s arguments in reply, we conclude that Jones is not entitled to relief. Jones was sentenced to death following a jury’s recommendation for death by a vote of nine to three. Jones v. State, 690 So.2d 568, 569-70 (Fla. 1996). Jones’s sentence of death became final in 1997. Jones v. Florida, 522 U.S. 880, 118 S.Ct. 205, 139 L.Ed.2d 141 (1997). Thus, Hurst does not apply retroactively to Jones’s sentence of death. See Hitchcock, 226 So.3d at 217. Accordingly, we affirm the denial' of Jones’s motion.

The Court having carefully considered all arguments raised by Jones, we caution that any rehearing motion containing rear-gument will be stricken. It is so ordered.

LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J.,

concurring in result.

I concur in result because I recognize that this Court’s opinion in Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, — U.S. —, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock.


text:
    Ernest D. SUGGS, Appellant, v. STATE of Florida, Appellee. Ernest D. Suggs, Appellant, v. Julie L. Jones, etc., Appellee.
    No. SC17-1225
    No. SC16-1066
    Supreme Court of Florida.
    [January 22, 2018]
    Robert S. Friedman, Capital Collateral Regional Counsel, Dawn B. Macready, and Stacy Biggart, Assistant Capital Collateral Regional Counsel, Northern Region, Tallahassee, Florida, for Appellant/Petitioner
    Pamela Jo Bondi, Attorney General, and Lisa Hopkins, Assistant Attorney General, Tallahassee, Florida, for Appellee/Respon-dent
   PER CURIAM.

We have for review Ernest D. Suggs’ appeal of the circuit court’s order denying Suggs’ motion filed pursuant to Florida Rule of Criminal Procedure 3.851, as well as Suggs’ motion for rehearing on his petition for a writ of habeas corpus. This Court has jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

Suggs’ motion and habeas petition sought relief pursuant to the United States Supreme Court’s decision in Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, — U.S. —, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). This 'Court stayed Suggs’ appeal and consideration of his motion for rehearing pending the disposition of Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, — U.S. —, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). After this Court decided Hitchcock, Suggs responded to this Court’s order to show cause arguing why Hitchcock should not be dispositive in both cases.

After reviewing Suggs’ response to the order to show cause, as well as the State’s arguments in reply, we conclude that Suggs is not entitled to relief. Suggs was sentenced to death following a jury’s recommendation for death by a vote of seven to five. Suggs v. State, 644 So.2d 64, 66 (Fla. 1994). His sentence of death became final in 1995. Suggs v. Florida, 514 U.S. 1083, 115 S.Ct. 1794, 131 L.Ed.2d 722 (1995). Thus, Hurst does not apply retroactively to Suggs’ sentence of death. See Hitchcock, 226 So.3d at 217. Accordingly, we affirm the denial of Suggs’ motion and deny Suggs’ motion for rehearing on his petition for a writ of habeas corpus.

The Court having carefully considered all arguments raised by Suggs, we caution that any rehearing motion containing rear-gument will be stricken. It is so ordered.

LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J.,

concurring in result.

I concur in result because I recognize that this Court’s opinion in Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, — U.S. —, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock.


text:
    Harry Franklin PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. SC17-984
    Supreme Court of Florida.
    [January 22, 2018]

      Neal Dupree, Capital Collateral Regional Counsel, William Hennis, and Marta Jaszczolt, Assistant Capital Collateral Regional Counsel, Southern Region, Ft. Lauderdale, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Melissa J. Roca, Assistant Attorney General, Miami, Florida, for Appellee
   PER CURIAM.

We have for review Harry Franklin Phillips’ appeal of the circuit court’s order denying Phillips’ motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Phillips’ motion sought relief pursuant to the United States Supreme Court’s decision in Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, — U.S. —, 137 S.Ct. 2161, 198 L,Ed.2d 246 (2017). This Court stayed Phillips’ appeal pending the disposition of Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, — U.S. —, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). After this Court decided Hitchcock, Phillips responded to this Court’s order to show cause arguing why Hitchcock should not be dispositive in this case.

After reviewing Phillips’ response to the order to show cause, as well as the State’s arguments in reply, we conclude that Phillips is not entitled to relief. Phillips was sentenced to death following a jury’s recommendation. for death by a vote of seven to five. Phillips v. State, 705 So.2d 1320, 1321 (Fla. 1997). Phillips’ sentence of death became final in 1998. Phillips v. Florida, 525 U.S. 880, 119 S.Ct. 187, 142 L.Ed.2d 152 (1998). Thus, Hurst does not apply retroactively to Phillips’ sentence of death. See Hitchcock, 226 So.3d at 217. Accordingly, we affirm the denial of Phillips’ motion.

The .Court having carefully considered all arguments raised by Phillips, we caution that any rehearing motion containing reárgument will be stricken. It is so ordered.

LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J.,

concurring in result.

I concur in result because I recognize that this Court’s opinion in Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, — U.S. —, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock.


text:
    Eric Scott BRANCH, Appellant, v. STATE of Florida, Appellee.
    No. SC17-1509
    Supreme Court of Florida.
    [January 22, 2018]

      Robert S. Friedman, Capital Collateral Regional Counsel, Stacy Biggart, Alice B. Copek, and Kathleen Pafford, Assistant Capital Collateral Regional Counsel, Northern Region, Tallahassee, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Lisa Hopkins, Assistant Attorney General, Tallahassee, Florida, for Appellee
   PER CURIAM.

We have for review Eric Scott Branch’s appeal of the circuit court’s order denying Branch’s motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Branch’s motion sought relief pursuant to the United States Supreme Court’s decision in Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, — U.S. —, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). This Court stayed Branch’s appeal pending the disposition of Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, — U.S. —, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). After this Court decided Hitchcock, Branch responded to this Court’s order to show cause arguing why Hitchcock should not be dispositive in this case.

After reviewing Branch’s response to the order to show cause, as well as the State’s arguments in repily, we conclude that Branch, is not entitled to relief. Branch was sentenced to death following a jury’s recommendation for death by a vote of ten to two. Branch v. State, 685 So.2d 1250, 1252 (Fla. 1996). Branch’s sentence of death became final in 1997. Branch v. Florida, 520 U.S. 1218, 117 S.Ct. 1709, 137 L.Ed.2d 833 (1997). Thus, Hurst does not apply retroactively to Branch’s sentence of death. See Hitchcock, 226 So.3d at 217. Accordingly, we affirm the denial of Branch’s motion.

The Court having carefully considered all arguments raised by Branch, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.

LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J.,

concurring in result.

I concur in result because I recognize that this Court’s opinion in Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, — U.S. —, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock.