source: Caselaw Access Project

license: Public Domain

text:
    SMP WELDING, LLC v. Christopher Brock HILL
    1121290
    Supreme Court of Alabama.
    12-11-2015
   Affirmed.


text:
    ALL CRANE RENTAL OF ALABAMA, LLC, and TEK Aerial Lifts, LLC v. Christopher Brock HILL
    1121299
    Supreme Court of Alabama.
    12-11-2015
   Affirmed.


text:
    NINETEENTH STREET INVESTMENTS, INC., et al. v. Sharon ROBERTSON, as mother of Timothy Andrew Robertson, deceased
    1131285
    Supreme Court of Alabama.
    11-20-2015
   Affirmed.


text:
    Gene WARHURST, Jr. v. CITY OF FAIRHOPE and Fairhope Single Tax Corp.
    1131328
    Supreme Court of Alabama.
    11-20-2015
   Affirmed.


text:
    NINETEENTH STREET INVESTMENTS, INC., et al. v. Michael WALDROP
    1131380
    Supreme Court of Alabama.
    11-20-2015
   Affirmed.


text:
    NINETEENTH STREET INVESTMENTS, INC., et al. v. Jennifer VICKERY
    1131381
    Supreme Court of Alabama.
    11-20-2015
   Affirmed.


text:
    CAPSTONE PARTNERS, LLC v. Patricia COWART and Jerry Cowart
    1131421
    Supreme Court of Alabama.
    10-16-2015
   Reh. denied.


text:
    Capstone PARTNERS, LLC v. Dennis BALES and Linda Bales
    1131422
    Supreme Court of Alabama.
    10-16-2015
   Reh. denied.


text:
    CAPSTONE PARTNERS, LLC v. Mike ADAMSON and Beverly Adamson
    1131423
    Supreme Court of Alabama.
    10-16-2015
   Reh. denied.


text:
    CAPSTONE PARTNERS, LLC v. Daniel J. FOSTER and Brenda B. Foster
    1131424
    Supreme Court of Alabama.
    10-16-2015
   Reh. denied.


text:
    WATER WORKS BOARD OF THE CITY OF BIRMINGHAM v. Vance WILLIAMSON
    1131509
    Supreme Court of Alabama.
    10-23-2015
   Reh. denied.


text:
    AMERICAN RESOURCES INSURANCE CO. v. INTERNATIONAL PAPER CO.
    1140230
    Supreme Court of Alabama.
    11-13-2015
   Reh. denied.


text:
    INTERNATIONAL PAPER CO. v. AMERICAN RESOURCES INSURANCE CO.
    1140272
    Supreme Court of Alabama.
    11-13-2015
   Reh. denied.


text:
    Annie Louise WHITTY et al. v. MONTGOMERY COUNTY et al.
    1140279
    Supreme Court of Alabama.
    12-04-2015
   Affirmed.


text:
    AMERICAN RESOURCES INSURANCE CO. v. INTERNATIONAL PAPER CO.
    1140359
    Supreme Court of Alabama.
    11-13-2015
   Reh. denied.


text:
    EX PARTE Jacob Christopher WOODLEE
    1140415 (CR-13-1412)
    Supreme Court of Alabama.
    10-16-2015
   Writ of cert. quashed.


text:
    RJS ROTH IRA INVESTCO, LLC, a/k/a Roth IRA Holdco, LLC v. PAYDAY SUPPORT CENTER, LLC, et al.
    1140422
    Supreme Court of Alabama.
    11-13-2015
   Affirmed,


text:
    EX PARTE Stephen Dewayne GRAY
    1140467 (CR-13-0527)
    Supreme Court of Alabama.
    11/13/2015
   Cert, denied.


text:
    Latanya Nikkole WESTON, as administratrix of the estate of James Eugene Wilson, deceased v. DRC EMERGENCY SERVICES, LLC
    1140475
    Supreme Court of Alabama.
    11-13-2015
   Affirmed.


text:
    Robin DUBOSE, as guardian of the minor child, B.H. v. Allen JOHNSON
    1140493
    Supreme Court of Alabama.
    10-23-2015
   Affirmed.


text:
    Betty SMITH v. ESTATE OF Jewel M. ARMSTRONG, deceased, by Michael H. McDuffie as personal representative of the estate
    1140502
    Supreme Court of Alabama.
    11-25-2015
   Affirmed.


text:
    Gene WARHURST, Jr. v. CITY OF FAIRHOPE and Fairhope Single Tax Corp.
    1140533
    Supreme Court of Alabama.
    11-20-2015
   Affirmed.


text:
    EX PARTE CITY OF HUNTSVILLE
    1140539
    Supreme Court of Alabama.
    12-11-2015
   Mand. pet. denied.


text:
    MCFADDEN, LYON & ROUSE, LLC v. CIT COMMUNICATIONS FINANCE CORP.
    1140558
    Supreme Court of Alabama.
    10-23-2015
   Affirmed.


text:
    Ruth LEWIS, individually and as administratrix of the estate of Leemon L. Lewis, deceased v. AFFINITY HOSPITAL, LLC, d/b/a Trinity Medical Center
    1140560
    Supreme Court of Alabama.
    10-16-2015
   Affirmed.


text:
    EX PARTE Keith Edmund GAVIN
    1140665 (CR-10-1313)
    Supreme Court of Alabama.
    10-23-2015
   Cert, denied.


text:
    ROGERS & WILLARD, INC. v. ENGINEERED ARCHITECTURAL SYSTEMS, INC.
    1140733
    Supreme Court of Alabama.
    11-13-2015
   Affirmed.


text:
    Peter J. HOWARD v. TRUSTMARK NATIONAL BANK
    1140772
    Supreme Court of Alabama.
    10-16-2015
   Dismissed.


text:
    ESTATE OF Linda D. KING, deceased, Billy Smith, and Mary Smith v. Kendra CLAYTER
    1140780
    Supreme Court of Alabama.
    12-11-2015
   Affirmed.


text:
    Michael E. GREENE and Katherine S. Greene v. PREMIER AIRCRAFT SERVICE, INC.
    1140801
    Supreme Court of Alabama.
    11-13-2015
   Affirmed.


text:
    LOGAN PROPERTIES, LLC v. Danielle MCNEAL
    1140802
    Supreme Court of Alabama.
    12-04-2015
   Affirmed.


text:
    EX PARTE MOBILE INFIRMARY ASSOCIATION d/b/a Mobile Infirmary Medical Center
    1140882
    Supreme Court of Alabama.
    11-13-2015
   Mand. pet. denied.


text:
    EX PARTE Shawn POFF
    1140883
    Supreme Court of Alabama.
    11-13-2015
   Mand. pet. denied.


text:
    Lydia Kathryn TERRY v. Joel Kirby SPENCER
    1140888
    Supreme Court of Alabama.
    10-16-2015
   Affirmed.


text:
    COBBS, ALLEN & HALL, INC., and CAH Holdings, Inc. v. EPIC HOLDINGS, INC., et al.
    1140909
    Supreme Court of Alabama.
    12-18-2015
   Affirmed.


text:
    EX PARTE Melissa BOYKIN
    1140917 (2130837)
    Supreme Court of Alabama.
    10-16-2015
   Cert, denied.


text:
    John NUNNELEE v. CITY OF RAINBOW CITY
    1140927
    Supreme Court of Alabama.
    11-20-2015
   Dismissed.


text:
    ESTATE OF Carolyn Gail Russell DEESE, by and through its personal representative Franklin Douglas Deese v. James S. HIXON and Internal Medicine Associates, P.C.
    1140930
    Supreme Court of Alabama.
    12-04-2015
   Affirmed.


text:
    L.L., individually and as guardian and next friend of K.D., a minor v. WOOTEN CHAPEL BAPTIST CHURCH
    1140966
    Supreme Court of Alabama.
    11-20-2015
   Affirmed.


text:
    Mike CALDWELL v. ALABAMA POWER CO.
    1141005
    Supreme Court of Alabama.
    11-13-2015
   Affirmed.


text:
    EX PARTE Rita REYNOLDS
    1141064 (2130887)
    Supreme Court of Alabama.
    10-23-2015
   Cert, denied.


text:
    EX PARTE Brian D. WATTS and Government Employees Insurance Co.
    1141117
    Supreme Court of Alabama.
    10-30-2015
   Mand. pet. denied.


text:
    EX PARTE HYDRO-VAC INDUSTRIAL SERVICES, INC.
    1141122
    Supreme Court of Alabama.
    11-20-2015
   Mand. pet. denied.


text:
    EX PARTE Nickelle Jebeles GERONTAKIS
    1141147 (2131079)
    Supreme Court of Alabama.
    10-23-2015
   Cert, denied.


text:
    EX PARTE James Arthur CULBRETH
    1141174 (CR-14-1238)
    Supreme Court of Alabama.
    10-16-2015
   Cert, denied.


text:
    EX PARTE Tracey Michelle GRISSOM
    1141198 (CR-14-0114)
    Supreme Court of Alabama.
    12-04-2015
   Cert, denied.


text:
    EX PARTE Courtney James BOYD
    1141214 (CR-14-0795)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE David WILLSEY
    1141222 (2140066)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE Erin DEAN
    1141224 (2130990)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE Christopher Wayne SPEARS
    1141238 (CR-14-0708)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE W.H.
    1141243 (2140313, 2140314, and 2140315)
    Supreme Court of Alabama.
    10-23-2015
   Cert. denied.


text:
    EX PARTE A.O.
    1141244 (2140435, 2140436, and 2140437)
    Supreme Court of Alabama.
    10-23-2015
   Cert. denied.


text:
    EX PARTE Charles TURNER
    1141246 (CR-13-1745)
    Supreme Court of Alabama.
    10-23-2015
   Cert. denied.


text:
    EX PARTE Kamaluddeen Raheem RUSSAW
    1141250 (CR-13-1206)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE Terry BASS
    1141272 (CR-14-0562)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE Harry L. MCCALL and Vanies D. McCall
    1141276 (2121063)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE Brett Patrick NAFF
    1141282 (CR-13-1602)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE Jennifer L. KAMERER
    1141283 (2140687)
    Supreme Court of Alabama.
    12-04-2015
   Cert. denied.


text:
    EX PARTE Roscoe HOLLOWAY
    1141284 (CR-14-0762)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Floyd SIMS
    1141285 (2140510)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE SPRINGHILL HOSPITALS, INC., d/b/a Springhill Memorial Hospital
    1141300 (2140494)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE J.B.
    1141308
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE Phillip GAY
    1141309
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE The LYRIC CO.
    1141311 (2140213)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE David M. ANDRES
    1141316 (2140093)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE Timothy Ronald DORSEY
    1141319 (CR-14-0733)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE Bobbie Jean CARTER
    1141320 (CR-14-0898)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Debbie Tonita PURIFOY
    1141325
    Supreme Court of Alabama.
    10-23-2015
   Cert. denied.


text:
    EX PARTE Barrie Lee LEVERETT
    1141326 (CR-14-0302)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE Quintell Kendrick TARRANCE
    1141328
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE Elogene C. HUGHES
    1141332 (2131035)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Aaron BRISCOE
    1141342 (CR-14-0334)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Quinton Jafar PARHAMS
    1141344 (CR-13-1718)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE Oscar Kenneth GOWENS
    1141349 (CR-13-1786)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE Robert M. EVANS
    1141355 (CR-14-0704)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Melvin BUSH
    1141356 (CR-14-0752)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE Taylor WILSON
    1141357 (CR-14-0663)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE Jonathan WESTON
    1141362 (CR-14-0134)
    Supreme Court of Alabama.
    12-04-2015
   Cert. denied.


text:
    EX PARTE K.D.P.
    1141368 (CR-13-1930)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Woodburck NOE
    1141369 (CR-14-0897)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE William Robert SANDERS
    1141370 (CR-14-1299)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE Martha Jane JOHNSON
    1141376 (2140079)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE Rico D. LEWIS
    1141377 (CR-14-0195)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE John H. THOMPSON
    1141388 (CR-14-0767)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE Darrell WIMBERLY
    1141389 (CR-14-0104)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE Monica AGEE
    1141390 (2140937)
    Supreme Court of Alabama.
    10-16-2015
   Cert. denied.


text:
    EX PARTE Everette A. MANCE
    1141393 (2140179)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Christopher Isaac SURLES
    1141395 (CR-13-1849)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Carl Michael SEIBERT
    1141398 (2140062)
    Supreme Court of Alabama.
    12-04-2015
   Cert. denied.


text:
    EX PARTE John Henry PATTON
    1141404 (CR-14-0634)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Kym GRAY
    1141406 (CR-14-0860)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE James E. DUBOSE
    1141410 (CR-14-0787)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Christopher CHAPPELL
    1141413 (CR-14-1119)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Norman Rand SAWTELLE
    1141419 (CR-14-0946)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE James C. WAINWRIGHT
    1141425 (2140508)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Jerald David CALDWELL
    1141427 (CR-14-0349)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Arthur Lee WITHERSPOON
    1141428 (CR-13-1723)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE P.J.F., JR.
    1141431 (CR-13-1824)
    Supreme Court of Alabama.
    12-11-2015
   Cert. denied.


text:
    EX PARTE M.P.M.
    1141432 (CR-14-0508)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Christopher Anthony HARRIS
    1150001 (CR-14-0732)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Kaante GAINES
    1150002 (CR-14-0622)
    Supreme Court of Alabama.
    12-04-2015
   Cert. denied.


text:
    EX PARTE Reginald Tyrone LIGHTFOOT
    1150005 (CR-14-0160)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Michael Wayne LINDSAY
    1150006 (CR-14-0558)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Courtney BOYD
    1150013 (2140227)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Michael Deon OWEN
    1150015 (CR-14-1050)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE William Samson NELSON
    1150017 (CR-14-0061)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Dionntez BYNER
    1150044 (CR-14-0813)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE John Woodson KLOS
    1150045 (2140236)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Clint Toneyo FOSTER
    1150048 (2130951)
    Supreme Court of Alabama.
    12-04-2015
   Cert. denied.


text:
    EX PARTE James MENEFIELD
    1150056 (CR-14-1255)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Carlos CASTILLO
    1150060 (CR-13-1616)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE Lorenzo BILLINGSLEY
    1150063 (CR-14-0741)
    Supreme Court of Alabama.
    11-13-2015
   Cert. denied.


text:
    EX PARTE John Maurice EVANS
    1150077 (CR-14-0968)
    Supreme Court of Alabama.
    12-04-2015
   Cert. denied.


text:
    EX PARTE Carl McArthur JORDAN
    1150087 (CR-14-1350)
    Supreme Court of Alabama.
    12-04-2015
   Cert. denied.


text:
    EX PARTE David Lamar JOHNSON
    1150088 (CR-14-1233)
    Supreme Court of Alabama.
    12-04-2015
   Cert. denied.


text:
    EX PARTE Gary Derone NANCE, Jr.
    1150091 (CR-14-0596)
    Supreme Court of Alabama.
    12-04-2015
   Cert. denied.


text:
    EX PARTE Sabrina W. STOVER
    1150099 (2140705)
    Supreme Court of Alabama.
    12-04-2015
   Cert. denied.


text:
    EX PARTE John STEELE
    1150104 (CR-14-1098)
    Supreme Court of Alabama.
    12-04-2015
   Cert. denied.


text:
    EX PARTE Joseph WEST
    1150108 (2140463)
    Supreme Court of Alabama.
    12-04-2015
   Cert. denied.


text:
    EX PARTE D.M.
    1150109 (CR-143-1917)
    Supreme Court of Alabama.
    12-04-2015
   Cert. denied.


text:
    EX PARTE Leon Devon ROGERS
    1150110 (CR-14-1023)
    Supreme Court of Alabama.
    12-04-2015
   Cert. denied.


text:
    EX PARTE Turner Lee ROGERS
    1150145 (CR-14-1405)
    Supreme Court of Alabama.
    12-04-2015
   Cert. denied.


text:
    EX PARTE Fredrick J. DOUGLAS
    1150164 (2140600)
    Supreme Court of Alabama.
    12-04-2015
   Cert. denied.


author: MURDOCK, Justice.

text:
    DOLGENCORP, LLC v. Michelle SPENCE
    1150124
    Supreme Court of Alabama.
    Sept. 30, 2016

      Rick D. Norris, Richard E. Smith,'and W. Steven Nichols of Christian & Small, LLP, Birmingham, for appellant.

      Kimberly Griffin Kervin, Prattville; and Kelly Tipton Lee, Prattville, for appellee.
   MURDOCK, Justice.

Dolgencorp, LLC (“Dolgencorp”), appeals from a judgment entered on a jury verdict in the amount of $100,000 in favor of Michelle Spence in her action filed in the Autauga Circuit Court seeking damages arising from her arrest for shoplifting. We reverse and remand.

I. Facts

The evidence at trial showed the following. On April 16, 2013, Spence went to the Dollar General discount store located on McQueen Smith Road in Prattville to purchase some paper towels, toilet paper, mineral oil, and hair spray. Spence’s cousin, Kody Atchison, accompanied Spence to the store. Cindy Welch was the manager working at the Dollar General store that day. Welch and Spence did not know each other before that day, even though Spence was a regular shopper at that particular Dollar General store.

Spence got a shopping cart outside the store. She placed her purse in the compartment of the cart where the child seat is located, and she entered the store. Welch testified that she was stocking merchandise when she saw Spence enter the store. Welch continued to watch Spence as Spence walked toward the health-and-beauty-aid section.

Once Spence reached an aisle of health and beauty products, she picked up a container of mineral oil. The evidence is conflicting as to what occurred next. Welch testified that she witnessed Spence place the mineral oil in her purse, which was open. Spence testified that she placed the mineral oil in the compartment of the cart near her purse. Welch testified that she began to “suspect” that Spence was up to something so she specifically watched Spence as she walked to the, next aisle. Spence selected a container of hair spray. According to Spence, she placed the hair spray in the top compartment of the cart. Spence admitted that the hair-spray container was not visible in the cart, but she stated that this was because it had rolled to the side of her purse and then became sandwiched between the back of the cart and her purse. Welch testified that she was standing right over Spence’s shoulder and she watched Spence place the hairspray container in her open purse and then close the purse by zipping it. Spence testified that this was not possible because the purse was too small to hold the containers of mineral oil and hair spray and that the zipper on the purse was broken. Spence stated at trial that she no longer had the purse because she threw it away at some point.

Spence testified that as soon as she put the hair spray into her cart Welch grabbed her by the arm “and hollered, ‘You’re trying to conceal that.’” Spence stated that she responded by picking up the hair spray and saying: “What are you talking about? This hair spray? I’m not trying to conceal anything. I plan to pay for everything I get today and I’ve got more shopping to do.” Spence testified that Welch took the hair spray from her, then handed it back to her. Spence testified that Welch continued to yank her arm and told her: “You better not try to leave here ... you have to stay here. ... I’m calling the police.” Spence stated that Welch then “just took off’ for the store office. Spence and Atchison followed Welch toward the front of the store and stood there while Welch went into the office and telephoned the police. Spence testified that there were several people in the store at this time and that Welch’s handling of the situation embarrassed and humiliated her.

Approximately 15 or 20 minutes later, two Prattville police officers arrived at the Dollar General store.. Welch gave the police officers an oral statement of her version of what had happened. Spence requested that the officers review the videotape of the incident, but she was told that there was no video. The officers arrested Spence at approximately 3 p.m.; she was taken to the police station in city hall.

Welch remained in the store and continued working, while arranging for someone else, to oversee the store while she went to the police station. Welch arrived at city hall between 4 p.m. and 5 p.m., at which time she signed a complaint alleging theft of property against Spence. A magistrate, judge signed the complaint shortly thereafter. Spence was taken to jail at approximately 5 p.m.

Spence unsuccessfully attempted to contact her mother regarding bail. Spence then contacted Atchison to come down to the police station to see what could be done about getting her released from jail. Gpt. Larry Nixon, the jail warden/administrator, testified that Spence would have been released from jail that same day if $500 cash had been paid to the magistrate judge by 5 p.m., but no payment was submitted. Nixon also testified that when Spence’s purse was inventoried it was found to contain $229.37 in cash. Spence spent the night in jail with eight other inmates in a large holding cell. The following day Atchison posted a cash bond of $150 (a reduction approved by the magistrate judge), and Spence was released.

The charges against Spence were dismissed after two court appearances because no witnesses appeared to testify against her. Welch quit working for Dol-gencorp not long after the incident—namely at the end of May 2013—in order to move to Ferriday, Louisiana, to be with her husband, who had cancer. Based on the testimony at trial and the briefs of the parties to this Court, it is undisputed that Welch did not tell anyone at Dolgencorp about the incident involving Spence before she left employment with the company.

Welch had started working for Dolgen-corp in December 2011. She testified that Dolgencorp trained its employees through the use of videos that, among other things, explained Dolgencorp’s Standard Operating Procedures (“SOPs”). Dolgencorp employees also were given an electronic copy of Dolgencorp’s employment handbook. Employees signed an acknowledgment form in which they attested that they had read and understood all information contained in the employment handbook. Welch signed an acknowledgment on December 5, 2011, at the outset of her employment with Dolgencorp, and she signed another one on April 13, 2013, three days before the incident involving Spence.

Welch testified that during her training she learned about a four-step approach for handling suspected shoplifters know as “ASAP.” The ASAP approach is contained in Dolgencorp’s “Shoplifting Prevention SOP.” Welch testified that she did not remember specifically ever seeing a written document that discussed the proper way to deal with a shoplifter, although she stated that she did read everything she attested to reading (by signing acknowledgment forms) during her training and employment.

Welch further testified that the first step in the four-step ASAP approach was to “approach” the subject. The second step was to “smile” from approximately five feet away. The third step was to “ask” a “face-saving” question, The fourth step was to “proactively” offer assistance. A portion of the policy also states: “[I]f the customer produces the merchandise the employee is not to accuse them of stealing or attempt to detain them.” Another portion of Dolgencorp’s shoplifting SOP states: “[T]he best deterrent is customer service. Never engage in verbal accusation with anyone suspected of shoplifting. Never tquch anyone suspected of shoplifting or touch his or her personal belongings.” The SOP states that, if possible, a store manager should give the suspected shoplifter an opportunity to pay for the items in question before seeking assistance from law-enforcement authorities.

Welch admitted that she did not follow' Dolgencorp’s shoplifting SOP on April 16, 2013. She stated that she believed that the SOP provided “guidelines” on how to handle shoplifting situations, that the “procedures may not fit every situation,” - and that in “different situations you do different things.” Welch also admitted, however, that no one at Dolgencorp told her that, she did not have to follow the SOP in every situation.

Dolgencorp’s district manager for the store at which Welch was working conducted an annual performance review of Welch in 2012. Welch’s overall performance-review score was “good.” The performance review concluded:

“Store conditions have greatly improved-upon every visit to [store no.] 9090. Cindy works very hard and she needs to ensure all people in her store are working as hard as she is. Last year’s shrink results[] were unacceptable and Cindy has made a good effort to change the current cycles trend. Cindy is a real team player and I look forward, to working with- him [sic] more in the future.”1

Welch testified that district managers discussed improving “shrinkage” with store managers at least once a year.

On June 23, 2014, Spence sued Dolgen-corp and Welch. She asserted claims of invasion of privacy, defamation, false imprisonment, and negligent and wanton training. Dolgencorp filed its answer on October 16, 2014,' denying all allegations. On June 15,12015, Spence filed an amended complaint in which she added claims asserting malicious prosecution and assault and battery against Dolgencorp and Welch. Dolgencorp filed its answer to the amended complaint on July 7, 2015.

Spence never perfected service' of her complaint oh Welch. On the first day of trial, Spence moved to dismiss Welch from the action, and the trial court granted the motion. The trial court’s written order stated simply: “Oral Motion to Dismiss Gindy Welch, granted.” ■

On July 21, 2015, following a two-day trial, the jury returned a general verdict in favor of Spence and against Dolgencorp in the amount of $100,000 in compensatory damages. The trial court entered 'a judgment on'the jury’s verdict the same day.

On August 14, 2015, Dolgencorp filed, a “Renewed Motion for Judgment as a Matter of Law Post-Judgment and Motion for a New Trial.” On September 28, 2015, the trial court. denied Dolgencorp’s motion. Dolgencorp appealed to this Court on October 27, 2015.

II. Analysis

Dolgencorp first presents arguments as to why it believes the trial court erred in failing to enter a judgment as-a matter of law (“JML”) on the claims asserted by Spence. Dolgencorp argues in the alternative that it was entitled to a new trial. Our conclusions regarding the arguments Dol-gencorp presents in favor of a JML preter-mit the need to discuss Dolgencorp’s arguments regarding its motion for a new trial.

A. Did Welch’s Dismissal from the Action Affect Spence’s Claims Based on the Doctrine of Respondeat Superior?

Dolgencorp first contends that, because Spence’s claims against Dolgencorp’s employee, Welch, were dismissed, Dolgen-corp was entitled to a JML as to all of Spence’s claims against Dolgencorp básed on the doctrine of respondeat superior. We disagree.

This Court has held:

“ ‘[W]hen [a] principal and his agent are sued in [a] joint action in tort for misfeasance or malfeasance on the part of the servant, and his liability for the conduct of said servant is under the rule of re-spondeat superior, a verdict in favor of the servant entitles the master to have the verdict against him set aside.’ ”

Larry Terry Contractors, Inc. v. Bogle, 404 So.2d 613, 614 (Ala.1981) (quoting Louisville & Nashville R.R. v. Maddox, 236 Ala. 594, 600, 183 So. 849, 853 (1938)). The difficulty with Dolgencorp’s argument is that, in this case, there was no adjudication of the merits of Spence’s claims against Dolgencorp’s employee, Welch. As noted, Spence herself moved to dismiss her claims against Welch because she had been unable to effect service on Welch.

Dolgencorp concedes that it appears that'Spence’s claims against Welch-were dismissed without prejudice, see note 5, supra, but it contends that “the fact that Spence voluntarily dismissed Welch before trial,' and then- tried her claims -against Spence’s principal, Dolgencorp, to a verdict, operates as res judicata such that the dismissal of Welch necessarily was with prejudice.” Dolgencorp fails to explain, however, why'the fact that Spence tried her direct claims against one defendant to a conclusion somehow operates in “bootstrap” fashion to create a “res judicata” bar of her separate claims against another (much-less how any such alleged res -judi-cata bar of Spence’s claims against Welch could somehow, in circular fashion, then come back to undo the very adjudication of the claim against Dolgencorp that would be the basis of such a res judicata bar in the first place). Nothing in our rules of procedure requires, under penalty of a res judicata bar, that a plaintiff must try in the same action his or her claims against two different defendants arising out of the same transaction or occurrence.

Even if the claims against Welch had been expressly dismissed by the trial court “with prejudice” as, for example, a sanction for some procedural or discovery failure on Spence’s part (which they were not), there still would have been no adjudication of the factual merits of the nature required to undermine a claim against Welch’s employer based on the doctrine of respondeat superior. As Spence correctly notes, Welch obtained a judgment' “because of a legal principle related to the Alabama Rules of Civil Procedure. The effect ... is not an adjudication of the facts of Welch’s misconduct on behalf of Dolgencorp.”

Welch’s dismissal did not affect Spence’s ability to pursue her separate claims against Dolgencorp based on a theory of respondeat superior. Under the circumstances presented, if Spence could prove negligence on the part of a Dolgencorp employee, then she would have a basis for recovery against Dolgencorp on a respon-deat superior theory. The trial court, therefore, did not err in declining to enter a JML in favor of Dolgencorp on the basis that it had previously dismissed Spence’s claims against Dolgencorp’s employee, Welch.

B, Spence’s Assault and Battery Claim

Dolgencorp contends that it cannot be held liable for Welch’s alleged assault and battery under the doctrine of respon-deat superior because there is no evidence indicating that Welch was acting within the line and scope of her employment when she allegedly grabbed Spence’s arm and shook it.

“The plaintiff in an action alleging assault and battery must prove ‘(1) that the defendant touched the plaintiff; (2) that the defendant intended to touch the plaintiff; and (3) that the touching was conducted in a harmful or offensive manner.’ ” Harper v. Winston Cty., 892 So.2d 346, 353 (Ala.2004) (quoting Ex parte Atmore Cmty. Hosp., 719 So.2d 1190, 1193 (Ala.1998)).

“An employer is liable for the intentional torts of its employee if: (1) the employee’s acts are committed in furtherance of the business of the employer; (2) the employee’s acts are within the line and scope of his employment; or (3) the employer participated in, authorized, or ratified the tortious acts. Potts v. BE&K Constr. Co., 604 So.2d 398, 400 (Ala.1992). This Court has stated that tortious acts furthered an employer’s business where, for example, a defendant undertaker refused to release the body of the plaintiffs husband until the plaintiff had paid for services rendered, Levite Undertakers Co. v. Griggs, 495 So.2d 63 (Ala.1986), and where the defendant used threatening or abusive behavior in an attempt to coerce the plaintiff into dropping his claim, National Security Fire & Casualty Co. v. Bowen, 447 So.2d 133 (Ala. 1983). In contrast, where a co-employee defendant’s behavior is aimed at ‘satisfying [the co-employee’s] own lustful desires,’ this Court has held that ‘no corporate purpose could conceivably be served.’ Busby [v. Truswal Sys. Corp.], 551 So.2d [322,] 327 [ (Ala.1989) ]. ...
“An employee’s tortious acts occur within the scope of his employment if the acts are ‘so closely connected with what the servant is employed to do and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment.’ Prosser & Keeton, The Law of Torts 503 (5th ed. 1984). In Big B, Inc. v. Cottingham, 634 So.2d 999, 1002 (Ala. 1993), this Court held that there was sufficient evidence that a store manager who falsely imprisoned a customer suspected of shoplifting was acting within the scope of his employment because preventing shoplifting was closely related to his employment as a store manager. In contrast, where the store manager forced the customer to perform a sexual act with him, this Court has held that the manager was acting outside the scope of his employment. Id. at 1002; see also Hendley v. Springhill Mem’l Hosp., 575 So.2d 547 (Ala.1990) (holding that a hospital is not liable for the unauthorized sexual touching by an agent).”

Ex parte Atmore Cmty. Hosp., 719 So.2d at 1194.

Under Spence’s version of the incident, Welch’s method of confronting Spence about Spence’s alleged attempt to shoplift store merchandise may have been improper, but Welch clearly was carrying out an objective of her employment, i.e., she was attempting to prevent loss of inventory from the store she managed. Moreover, Dolgencorp had made it clear to Welch in her 2012 performance evaluation and training reminders from district managers that excessive shoplifting from the store was unacceptable. Viewed in this light, Welch’s actions also furthered Dolgencorp’s business. Welch’s actions did not involve attempting to satisfy personal desires; she was attempting to carry out her duties as a store manager, albeit in a manner not condoned by Dolgencorp’s SOP. Therefore, there is evidence indicating that Welch was acting within the line and scope of her employment and that her actions furthered Dolgencorp’s business. Accordingly, Dol-gencorp could be held liable for Welch’s alleged assault and battery, and the trial court did not err in submitting that claim to the jury.

C. Spence’s Negligent-Training Claim

Dolgencorp contends that Spence failed to present substantial evidence in support of her negligent-training claim against Dolgencorp. Specifically, Dolgen-corp contends that Spence failed to present any evidence indicating that its SOP for shoplifting was inadequate in any way or that Dolgencorp failed to communicate effectively its shoplifting SOP to Welch. Although we'are inclined to agree with the former proposition, we cannot agree with the latter.

Spence did not contend at trial, and she does not assert on appeal, that Dolgen-corp’s shoplifting SOP was inadequate or improper. Instead, she argues that Dol-gencorp failed to communicate its SOP effectively to Welch. Although this Court expresses no opinion on the merits of this argument, we cannot say that the record is so devoid of evidence in support of it that the trial court erred to reversal in submitting Spence’s negligent-training claim to the jury. Welch testified that her training occurred during “Christmastime” when “it was very busy.” She explained her training as “do a little training ... stock a truck ... do whatever to help in the store because it [was] December. It was busy.” When questioned as to whether she had ever been “trained by Dolgencorp on the proper way to stop a shoplifter,” Welch answered: “I don’t remember—I don’t recall seeing this, no.” The record indicates that Welch could not recall being trained as to other aspects of Dolgencorp’s shoplifting policy, including the requirement that the store manager write a detailed statement about the alleged shoplifting incident and that evidence relating to such an occurrence be sealed inside a Dolgen-corp bag and maintained pending criminal proceedings. Welch further testified that she was “following the number one rule of any retail business and that is to protect the assets of the store.” She testified that Dolgencorp never spoke with her about her interpretation of the policies and procedures for handling shoplifters. She further testified that it was her understanding that the shoplifting SOP provided “guidelines” for store managers that she could decide to follow or not.

Additional evidence supporting the submission of Spence’s negligent-training claim to the jury included evidence indicating that the store manager who succeeded Welch had been employed with Dolgen-corp for a period of more than two years but had never seen a copy of Dolgencorp’s shoplifting SOP until a few hours before his deposition.

Again, this Court offers no comment on the ultimate, merits of the negligent-training claim. Dolgencorp argues. on appeal only that there was not sufficient evidence of negligent training in the first place to have submitted the claim to the jury. Because we cannot agree with this proposition, we decline to hold the .trial court in error for having done so.

D. Spence’s False-Imprisonment Claim

Dolgencorp contends that Spence failed to present substantial evidence in support of her claim of false imprisonment. Dolgencorp’s argument hinges on its contention that .Welch had probable cause to detain Spence after believing she witnessed Spence conceal store merchandise in her purse.

“False imprisonment consists in the unlawful detention of the person of another for any length of time whereby he is deprived of his personal liberty.” § 6-5-170, Ala. Code 1975. “A merchant, pursuant to § 15-10-14(a) and (c), [Ala. Code 1975,] is given the statutory right to detain a person if he has probable cause for suspecting that items from his store have been unlawfully taken.” Whitlow v. Bruno’s, Inc., 567 So.2d 1235, 1238-39 (Ala.1990).

Probable 'cause has been defined as “ ‘[a] reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged.’ ” ’ ” Wesson v. Wal-Mart Stores E., L.P., 38 So.3d 746, 751 (Ala.Civ.App.2009) (quoting Eidson v. Olin Corp., 527 So.2d 1283, 1285 (Ala.1988), quoting in turn Parisian Co. v. Williams, 203 Ala. 378, 383, 83 So. 122, 127 (1919)). “Alabama law requires that ‘the existence of probable cause is to be judged in light of the facts as they appeared when the underlying action was filed.’ ” Gunter v. Pemco Aeroplex, Inc., 646 So.2d 1332, 1334 (Ala.1994) (quoting Fina Oil & Chem. Co. v. Hood, 621 So.2d 253, 257 (Ala.1993)). “ ‘ “The question [of probable cause] is not whether the [falsely imprisoned] plaintiff was guilty of the'thing charged, but whether the ... defendant acted in good faith on the appearance of things.” ’ ” Wesson, 38 So.3d at 751 (quoting Eidson, 527 So.2d at 1285).

- Dolgencorp argues that “the evidence clearly established that Welch had probable cause to suspect Spence' of shoplifting and to call the police and report the same.” Dolgencorp notes that Welch testified that she saw Spence place a container of mineral oil -into her open purse and thereafter drop a container of hair spray' into the purse and then zip the purse closed. Dol-gencorp adds that Spence testified that the hair spray was not visible in her cart because it was underneath the purse.

The problem with DolgeneOrp’s argument is that what Welch did and did not see is in dispute. Typically, “probable cause is a jury question in false arrest cases.” Frison v. Delchamps Store No. 11, 507 So.2d 478, 480 (Ala.1987) (citing Bank of Cottonwood v. Hood, 227 Ala. 237, 241, 149 So. 676, 679 (1933)). “Tf the facts-on the issue of probable cause are not in dispute, whether such facts amount to probable cause is a question of-law for the courts.’ ” Eidson, 527 So.2d at 1285 (quoting Hanson v. Couch, 360 So.2d 942, 945 (Ala.1978) (emphasis added)).

The facts here are in dispute. Although Welch testified that she witnessed Spence place merchandise in her purse, Spence and Atchison testified that Spence placed the items in her cart, that the purse was too small to hold the merchandise, and that the zipper on the purse was broken and the purse could not be closed. If the testimony presented by Spence and Atchi-son was believed by a jury, and/or the jury found Welch’s testimony not credible, then there would be a basis for a finding that Welch lacked probable cause to- believe Spence was guilty of shoplifting. Because of the conflicting evidence, the trial court did not err in allowing Spence’s false-imprisonment claim to go to the jury.

E. Spence’s Malicious-Prosecution Claim

Dolgencorp contends that Spence failed to present substantial evidence to support her claim of malicious prosecution. Specifically, Dolgencorp argues that Welch had probable cause to sign the complaint charging Spence with theft of merchandise and that Welch lacked malicious intent in doing so.

“The plaintiff in a malicious prosecution case must prove each of the following elements: 1) that a prior judicial proceeding was instigated by the defendant 2) without probable cause and 3) with malice; 4) that that prior proceeding was terminated in the plaintiffs favor; and 5) that the plaintiff suffered damage[ ] as a result of that prior proceeding.”

Whitlow, 567 So.2d at 1237.

“'In determining probable cause for the initiation of civil proceedings, all that is necessary is that the claimant reasonably believe that there is a chance that his claim may be held valid upon adjudication.’
“[Boothby Realty Co. v. Haygood,] 269 Ala. [549] at 553, 114 So.2d [555] at 558 [(1959)]. ‘[T]he existence of probable cause is to be judged in light of the facts as they appeared when the underlying action was filed.’ Fina Oil & Chem. Co. v. Hood, 621 So.2d 253, 257 (Ala.1993). ‘ “The question is not whether the ... -plaintiff [claiming malicious prosecution] was guilty of the thing charged, but whether the ... defendant acted in good faith on the appearance of. things.” ’ Eidson v. Olin Corp., 527 So.2d 1283, 1285 (Ala.1988) (quoting Birwood Paper Co. v. Damsky, 285 Ala. 127, 134-35, 229 So.2d 514, 521 (1969))...
“ ‘Because malicious-prosecution actions are not favored in the law, at the trial of the malicious prosecution action [the plaintiff] would have a strict burden of proving á negative—i.e., the complete absence of ... probable cause for [the defendant] to' bring the [underlying] action. [The plaintiffs] failure to prove the absence of probable cause would result 'in a judgment in favor of [the' defendant] as a matter of law. For purposes of summary judgment, the converse of [the plaintiffs] burden of proof may be stated as follows: If there are any undisputed facts of record establishing that [the defendant] had probable cause to bring the former action ... against [the plaintiff], then [the plaintiff] cannot recover for malicious prosecution and summary judgment is appropriate.
“ ‘ “If the facts on the issue of probable cause are not in dispute, whether such facts amount to probable cause is a question of law for the courts.” Hanson v. Couch, [360 So.2d 942], 945 [ (Ala.1978) ]; Gulf States Paper Corp. v. Hawkins, 444 So.2d 381 (Ala.1983).
“‘The test that this Court must apply when reviewing the lack-of-probable-cause element in a malicious prosecution case in which summary judgment has been granted to a defendant is as follows: Can one or more undisputed facts be found in the record below establishing that the defendant acted in good faith on the appearance of things as they existed when the suit was filed, based upon direct evidence, or upon circumstantial evidence and inferences that can reasonably be drawn therefrom? If so, then summary judgment in favor of the defendant on the plaintiffs malicious prosecution count would be appropriate.’
“Eidson, 527 So.2d at 1285-86 ....
“ ‘Malice in a malicious prosecution action has been defined as whatever is done willfully and purposely, whether the motive is to [injure the] accused, to gain some advantage to the prosecutor, or through mere wantonness or carelessness, if at the same time wrong and unlawful within the knowledge of the actor.
“ ‘Malice may be inferred from the want of probable cause, or from defendant’s conduct, where such conduct will admit of no other reasonable construction.’ ”

Willis v. Parker, 814 So.2d 857, 863-64 (Ala.2001) (quoting Dillon v. Nix, 55 Ala. App. 611, 613-14, 318 So.2d 308, 310 (Ala. Civ.App.1975) (some emphasis omitted and some emphasis added)).

Dolgencorp emphasizes that, in an action alleging malicious prosecution, probable cause is to be assessed from the subjective view of the defendant. See, e.g., Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166, 174 (Ala.2000) (stating that, “[i]n malicious prosecution eases, ‘probable cause’ is defined as ‘such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty1 ” (quoting Delchamps, Inc. v. Morgan, 601 So.2d 442, 445 (Ala.1992)). Dol-gencorp argues that, from her viewpoint, Welch had reason to believe that Spence was attempting to steal merchandise because Spence concealed the merchandise in her purse. Dolgencorp in particular argues that this Court’s reasoning in Morgan supports its position on probable cause as it relates to the malicious-prosecution claim.

In Morgan, Lela Morgan sued Del-champs, Inc. (“Delchamps”), and a Del-champs employee, Larry Mims, alleging malicious prosecution, false imprisonment, and assault and battery stemming from an incident in which Mims accused Morgan of attempting to steal a package of cigarettes from a Delchamps grocery store. Regarding probable cause, the Court explained:

“The question ... is not whether Morgan was in fact guilty of the charge of shoplifting, but whether Mims in fact saw events that would lead him to believe that she was guilty. S.S. Kresge Co. [v. Ruby], 348 So.2d [484] at 488 [ (Ala.1977) ]. Mims testified that on the day Morgan was arrested for shoplifting, he saw her enter the store, pick up a package of cigarettes from the cigarette carousel, and walk toward the rear of the store. He testified that he had noticed that this was a pattern for shoplifters. He further testified that he then followed Morgan and that when he was in a position where he was facing her he saw her place the cigarettes in the pocket of her pants and that he had no doubt at that time that she had placed the cigarettes in her pocket. (R. 127.) It is undisputed that Morgan had a pack of Winston cigarettes in her pants pocket, which was visible through the fabric of her pants, while she was in the store. She maintained that all Mims saw was a partial pack of cigarettes; Mims maintains that it was ‘a complete package,’ a ‘perfectly square box package.’ (R. 128.) Because the question before the court was one of probable cause and was therefore dependent on Mims’s subjective belief, even if Mims’s belief that Morgan had a complete pack of cigarettes in her pocket was subsequently shown to be incorrect, the question should not have been submitted to the jury. The fact that Morgan was acquitted of the charge does not prove that Delchamps lacked probable cause to arrest her. Piggly Wiggly Alabama Co. v. Rickles, 212 Ala. 585, 103 So. 860 (1925).
((
“Because Morgan undisputedly had a visible pack of cigarettes in her pocket, Mims could have entertained ‘an honest and strong suspicion’ that she had concealed store property. Therefore, the malicious prosecution count should not have been submitted to the jury.”

Morgan, 601 So.2d at 445 (emphasis added).

Dolgencorp argues that, just as it did not matter in Morgan for purposes of evaluating probable cause that Mims might have been mistaken that Morgan had stolen a package of cigarettes, in this case the fact that Welch may have been mistaken as to whether Spence actually was attempting to steal the mineral oil and hair spray is not the issue. The issue is whether Welch’s subjective belief that Spence was attempting to steal the items of merchandise was reasonable under the circumstances. Dolgencorp contends that it was.

The difficulty with the comparison to Morgan, however, is that it was undisputed that Morgan had a package of cigarettes in her pocket. It is not undisputed in this case that Spence had the mineral oil and the hair spray in her purse. The Morgan Court is clear, as was the Court in Willis and the cases cited therein, that the element of probable cause in a malicious-prosecution claim is only a matter for determination by the court if the facts in consequence are undisputed. That simply is not the case here.

The element of malice is another matter. Dolgencorp notes that it is undisputed that Welch and Spence did not know each other before their encounter. Spence introduced no evidence indicating that Welch acted out of ill will or a desire for revenge or that she was trying to gain some kind of advantage over Spence. The evidence simply indicated that Welch believed Spence was attempting to steal merchandise from the store, and that is the reason she signed the complaint against Spence.

Spence essentially concedes that she did not introduce any evidence of personal ill will or a desire for revenge on Welch’s part, but she argues that she did not have to. She cites Delchamps, Inc. v. Larry, 613 So.2d 1235, 1239 (Ala.1992), for the proposition that “[m]alice is an inference of fact and may be inferred from the lack of probable cause or from mere wantonness or carelessness.” Spence contends that Welch was careless and that she should have made further inquiry before prosecuting Spence because Spence had told Welch she planned to pay for everything, she had showed Welch the two items of merchandise, she had said she was not-done shopping, and Welch did not follow the Dolgencorp shoplifting SOP by offering' Spence the opportunity to pay for the items.

Spence’s position is equivalent to arguing that Welch’s failure to follow Dolgen-corp’s SOP amounted to malice. This Court clarified in cases subsequent to Larry, however, that carelessness is evidence of malice only “ ‘if at the same time' [the act is] wrong and unlawful within the knowledge of the actor.’ ” Willis, 814 So.2d at 863-64 (quoting Dillon v. Nix, 55 Ala.App. 611, 613-14, 318 So.2d 308, 310 (Ala.Civ.App.1975) (emphasis omitted)). See also Goodman, 789 So.2d at 174 (stating that “[m]alice is an inference of fact, and it may be inferred from a lack of probable cause or from mere wantonness or carelessness if 'the actor, when doing the act, knows it to be wrong or unlawful” (emphasis added)). And as this Court held in Willis: “ ‘[M]alice may be inferred from the want of probable cause, or from defendant’s conduct, where such conduct will admit of no other reasonable construction.’” 814 So.2d at 864. Based on the record presented, we cannot conclude that Spence presented evidence sufficient to support a finding of malice on Welch’s part. We conclude, therefore, that the trial court erred in submitting Spence’s malicious-prosecution claim to the jury.

F. Spence’s Defamation Claim

Dolgencorp contends that Spence failed to present- substantial evi- • dence to support her defamation claim. Specifically, Dolgencorp states that Spence’s defamation claim is based on Welch’s report to the police of the suspected theft. Dolgencorp argues that Welch was entitled to a qualified privilege under § 13A-11-161, Ala. Code 1975, for reporting the suspected theft. Under this privilege, Spence had to present evidence of “actual malice” on- Welch’s part to sustain the defamation claim. Dolgencorp contends that there is no evidence of “actual malice.”

“ ‘The elements of a cause of action for defamation are: 1) a false and defamatory statement -concerning the plaintiff; 2) an unprivileged communication of that statement to a third party; 3) fault, amounting at least to negligence on the. part of the defendant; and 4) either actionability of the statement irrespective of special harm or the existence of special harm caused by-the publication of the statement.’ ”

Wal-Mart Stores, Inc. v. Smitherman, 872 So.2d 833, 840 (Ala.2003) (quoting McCaig v. Talladega Publ’g Co., 544 So.2d 875, 877 (Ala.1989)), Section 13A-11-161 provides, in pertinent part: “The publication of a fair and impartial report ... of any charge of crime made to any judicial officer or body .., shall be privileged, unless it be proved that the same was published with actual malice.” This Court has explained:

“Actual malice as used in this statute refers to the common law standard.of malice rather than the constitutional standard of malice as set out in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In Alabama, where a communication concerning'a-private person is protected by a qualified or conditional privilege,[] such a person cannot recover in a defamation action unless that person can show that the communication was made with actual or common law malice (shown by evidence of previous ill will, hostility, threats, other actions, former libels or slanders, and the like, emanating from the defendant, or by the violence of the defendant’s language, the mode and extent of the publication, and the like).”

Wilson v. Birmingham Post Co., 482 So.2d 1209, 1213 (Ala.1986).

“Ordinarily, ‘[t]he determination of whether a statement is privileged is a question of law for the trial judge.’" Wiggins v. Mallard, 905 So.2d 776, 783 (Ala. 2004) (quoting Atkins Ford Sales, Inc. v. Royster, 560 So.2d 197, 200 (Ala.1990)). The Court has also observed, however, that “the détermination of malice in defamation cases is particularly within the province of the jury.” Cousins v. T.G. & Y. Stores Co., 514 So.2d 904, 906 (Ala.1987).

Spence appears to concede that the qualified privilege applies in this case, and indeed this Court previously has applied it to situations in which store employees have reported suspected shoplifters to law-enforcement authorities. See, e.g., Cousins, supra; Tidwell v. Winn-Dixie, Inc., 502 So.2d 747 (Ala.1987). Spence argues, however, that' she did introduce evidence of actual malice.

Spence notes that Welch did not watch video surveillance of the incident and did not allow Spence to pay for the items as Dolgencorp’s shoplifting SOP instructs. In her argument regarding her malicious-prosecution claim, Spence suggested that those decisions by Welch were careless. Now she suggests that they demonstrate that Welch knew that her shoplifting accusation was false. Spence speculates that the reason Welch persisted in her accusation despite knowing it was false was that “ill will and hostility were actually at work.” Importantly, however, Spence provides no basis for .the existence of such ill will.

Conversely, there is ample evidence indicating that the reason Welch did not “investigate further” is that she believed she had witnessed Spence’s attempt to steal the merchandise. Welch repeatedly stated as much in her testimony, Welch testified: “When she. got to the aisle with the hair spray, I was standing at the end of the aisle. As she was putting it in her purse and zipping it, I was right over, her shoulder looking. I saw her put it in her purse and zip her purse.” Again, Welch testified: “I saw the items go in her purse and the purse be. [sic] zipped.” Yet again, when Spence’s counsel asked Welch how she knew that the items were in Spence’s purse,, she testified: “Because I saw her put them in and zip the purse.” . .

The record does not contain substantial evidence of actual malice on Welch’s part. Therefore, the trial court erred in submitting Spence’s defamation claim to the jury.

G. Good Count/Bad Count

“In the present case, the jury returned a general verdict, without indicating which of the various elaims it based its verdict upon. This Court cannot’ presume that the verdict was based solely upon the ‘good’ counts, i.e’., the claims that are supported by the evidence. The jury could have based its verdict, awarding compensatory and punitive damages, solely upon the ‘bad’ counts, i.e., the claims that are not supported by the evidence. For this reason, we have no alternative but to order a new trial.”

Cook’s Pest Control, Inc. v. Rebar, 28 So.3d 716, 729 (Ala.2009).

As in Rebar, the jury in this case returned a general verdict without indicating which of Spence’s various claims it was returning the verdict upon. We have determined that the malicious-prosecution and defamation claims were improperly submitted to the jury. Therefore, we have in this appeal a “good-couni/bad-count” situation. Dolgencorp submitted a motion for a JML specifically directed to the various claims; that motion was denied. We cannot assume that the verdict was based only on those of Spence’s claims that were properly submitted to the jury. Accordingly, the judgment based on the jury verdict for Spence must be reversed; we remand this case for a new trial on Spence’s claims that were properly submitted to the jury, i.e., negligent training, invasion of privacy, false imprisonment, and assault and battery. See e.g., Rebar, supra; Alfa Life Ins. Corp. v. Jackson, 906 So.2d 143, 146 (Ala. 2005); and Waddell & Reed, Inc. v. United Inv’rs Life Ins. Co., 875 So.2d 1143, 1165-66 (Ala.2003).

III. Conclusion

We reverse the judgment for Spence and remand the case to the trial court for the entry of a JML in favor of Dolgencorp on Spence’s claims of malicious prosecution and defamation and for a new trial on Spence’s remaining claims of negligent training, invasion of privacy, false imprisonment, and assault and battery.

REVERSED AND REMANDED.

Stuart, Bolin, Main, and Bryan, JJ., concur.

      . Cindy Welch, the store manager, testified that she did not recall anyone being with Spence, but both Spence and Atchison testified that Atchison was with Spence.

      . No video of the incident was submitted at trial.

      . The term “shrink results” refers to loss of inventory as a result of shoplifting.

      . Spence’s wanton-training claim was not submitted to the jury,

      . The dismissal appears to have been without prejudice. Rule 41(a)(2), Ala. R. Civ. P., expressly states that, “[u]nless otherwise specified in the order, a dismissal under this paragraph is without prejudice,”

      . The reference to not having seen “this” apparently is a reference to Dolgencorp’s written policies. Welch testified that she provided an electronic signature in connection with the video training provided by Dolgencorp; she testified that she never saw the actual policies and procedures in print.

      . Sections 15—10—14(a) and (c), Ala. Code 1975, provide:
      “(a) A peace officer, a merchant or a merchant’s employee who has probable cause for believing that goods held for sale by the merchant have been unlawfully taken by a person and that he can recover them by taking the person into custody may, for the purpose of attempting to effect such recovery, take the person into custody and detain him in a reasonable manner for a reasonable length of time. Such taking into custody and detention by a peace officer, merchant or merchant's employee shall not render such police officer, merchant, or merchant’s employee criminally or civilly liable for false arrest, false imprisonment or unlawful detention.

      ;‘‘(c) A merchant or a merchant’s employee who causes such arrest as provided for in subsection (a) of this section of a person for larceny of goods held for sale shall not be criminally or civilly liable for false arrest or false imprisonment where the merchant or merchant’s employee has probable cause for believing that the perspn arrested committed larceny of goods held for sale.”

      . In Ex parte Blue Cross & Blue Shield of Alabama, 773 So.2d 475, 477-78 (Ala.2000), this Court stated that it would
      “henceforth use the term qualified privilege, because, as we discuss and hold, the defense is not subject to any condition but is. simply subject to the qualification, or limitation, that it suffices against only claims for innocent or mistaken defamation and not against claims for defamation committed with actual malice.”


author: THOMAS, Judge.

text:
    J.H. v. CULLMAN COUNTY DEPARTMENT OF HUMAN RESOURCES A.C. v. Cullman County Department of Human Resources
    2150689, 2150690, and 2150701
    Court of Civil Appeals of Alabama.
    Nov. 10, 2016

      Michelle Israel, Denver, Colorado, for appellant J.H.
    Alex J. Chaney, Cullman, for appellant A.C.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   THOMAS, Judge.

J.H. (“the father”) and A.C. (“the mother”) are the unmarried parents of T.L.C. (“the son”), who was born in August 2006. The father is also the father of M.E.H., who was born in April 2010 and M.F.H., who was born in February 2012. K.H., the father’s wife, is the mother of M.E.H. and M.F.H. (“the daughters”).

On October 21, 2015, the Cullman County Department of Human Resources (“DHR”) petitioned the Cullman Juvenile Court to terminate the parental rights of the father and the mother to the son (case number JU-09-173.05) and of the father and K.H. to M.E.H. (case number JU-11-240.04) and M.F.H. (case number JU-14-300.02). After a trial on April 11, 2016, the juvenile court entered three separate judgments on April 18, 2016, terminating the father’s and the mother’s parental rights to the son and the father’s and K.H.’s parental rights to the daughters. The mother filed a notice of appeal seeking our review of the judgment terminating her parental rights to the son in appeal number 2150701. The father did not file a notice of appeal regarding the judgment terminating his parental rights to the son; however, he filed notices of appeal seeking review of the judgment terminating his parental rights to M.E.H. in appeal number 2150689 and seeking review of the judgment terminating his parental rights to M.F.H. in appeal number 2150690. On August 23, 2016, this court consolidated the three appeals.

The Mother’s Appeal

The juvenile court entered its judgment in case number JU-09-173.05 on April 18, 2016. The mother filed a post-judgment motion seeking to alter, amend, or vacate that judgment on April 29, 2016, which is within the 14 days allowed by the Rules of Juvenile Procedure. See Rule 1(B), Ala. R. Juv. P. (“All postjudgment motions ... must be filed within 14 days after entry of order or judgment and shall not remain pending for more than 14 days.”). The juvenile court denied the mother’s postjudgment motion in case number JU-09-173.05 on May 4, 2016. The mother, therefore, had 14 days, or until May 18, 2016, to file a notice of appeal of the May 4, 2016, denial of her post-judgment motion filed in case number JU-09-173.05. Rule 4(a)(3), Ala. R. App. P. (appeals from judgments of a juvenile court must be filed within 14 days). The mother filed her notice of appeal on May 19, 2016. Although the mother had filed in the juvenile court a motion to proceed in forma pauperis on May 18, 2016, we have explained that, even when such a motion indicates a desire to file a notice of appeal, “[a] motion to proceed in forma pauperis is not a postjudgment motion that tolls the time for filing a notice of appeal.” A.J. v. Cullman Cty. Dep’t of Human Res., 112 So.3d 51, 53 (Ala. Civ. App. 2012).

“ ‘The timely filing of [a] notice of appeal is a jurisdictional act.’ Rudd v. Rudd, 467 So.2d 964, 965 (Ala. Civ. App. 1985); see also Parker v. Parker, 946 So.2d 480, 485 (Ala. Civ. App. 2006) (‘an untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived’).”

Kennedy v. Merriman, 963 So.2d 86, 88 (Ala. Civ. App. 2007). Because the mother’s appeal was untimely for the foregoing reasons, we dismiss appeal number 2150701.

The Father’s Appeals

Appeal numbers 2150689 and 2150690 were timely filed. The juvenile court entered its judgments in case numbers JU-11-240.04 and JU-14-300.02 on April 18, 2016, and the father filed postjudgment motions in both actions on April 28, 2016. The juvenile court denied the father’s post-judgment motion in case number JU-11-240.04 on May 4, 2016, and it denied the father’s postjudgment motion in case number JU-14-300.02 on May 9, 2016. On May 16, 2016, the father filed timely notices of appeal in both actions.

The father seeks this court’s review of whether the juvenile court “erred in terminating [his] parental rights to the [daughters] and [the son] where [the father] demonstrated sufficient parenting skills for a subsequent child in [his] custody.” Although the father has included the son in his issue statement, the- father did not file an appeal in case number JU-09-173.04; thus, the judgment terminating his parental rights to the son is not a 'subject of the father’s appeals. The father cites Bowman v. State Department of Human Resources, 534 So.2d 304, 305 (Ala. Civ. App. 1988), for his argument that the juvenile court failed to consider evidence presented regarding his current conditions or regarding his conduct relating to his ability or willingness to care for the daughters.

“This court’s standard of appellate review of judgments terminating parental rights is well settled. A juvenile court’s factual findings, based on ore tenus evidence, in a judgment terminating parental rights are presumed to be correct and will not be disturbed unless they are plainly and palpably wrong. See, e.g., F.I. v. State Dep’t of Human Res., 975 So.2d 969, 972 (Ala. Civ. App. 2007). Under express direction from our supreme court, in termination-df-parental-rights cases this court is ‘required to apply a presumption of correctness to the trial court’s finding[s]’ when tde trial court bases its decision on conflicting ore ténus evidence. Ex parte State Dep’t of Human Res., 834 So.2d 117, 122 (Ala. 2002) (emphasis added). Additionally, we will reverse a juvenile court’s judgment terminating parental rights only if the record shows that the judgment is not supported by clear and convincing evidence. F.I., 975 So.2d at 972.”

J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1183 (Ala. Civ. App. 2007)(foot-note omitted).

The record reflects that DHR had first become involved with the then 20-year-old father in 2010, when DHR received reports that M.E.H., who was an infant, had a skin irritation caused by numerous flea bites. Dr. Barry Wood, a psychologist, testified that he had evaluated the father in 2010, and, according to Dr. Wood, the father had slightly lower-than-average intelligence, had suffered from one or more learning disabilities and a personality disorder-, and had abused illegal substances since he was 14 years old.

Amy Olivér, a DHR employee, testified that DHR again became involved with the family in 2013 when neither K.H. nor the daughters were living with the father. Oliver testified that DHR had received reports that K.H. had not properly supervised the daughters and that a neighbor had sexually abused M.E.H, Oliver testified that, in May 2013, the daughters had been removed from KH.’s custody and had begun living with the father, who was also caring for the son. Oliver testified that DHR had provided various services to the father; however, the daughters were removed and placed in the custody of DHR in May 2014 because the son had attempted to start fires in the house, the-father had allegedly physically abused the son, the father “moved around a lot” and had léft the daughters in the care of others, the father had failed to stay on his “mental-health medication,” and DHR had received reports that the father was using methamphetamine. Furthermore, the .father admitted that, against DHR’s instructions, he had twice taken the daughters to a home where a registered sex offender lived.

Summer Gibson, a DHR employee, testified that, in May 2014, DHR had learned from the father’s mother that the father had suffered from mental-health issues since his childhood. Gibson said ..that the father had had a long history of psychiatric hospitalizations and that the father’s mental capacity was “just a little bit slower.”

Dr. Wood reevaluated the father in November 2014, which was 17 months before the termination-of-parental-rights trial. At that time, the daughters had been living with foster parents for six months. Dr. Wood testified that, in conducting a personalty test, he had accommodated the father by reading aloud the questions on the test, which, Dr. Wood thought, might enhance the father’s ability to respond to the questions; however, Dr. Wood had determined that the test results were invalid because the father’s answers were “chaotic,” which had indicated to Dr. Wood that the father had been manipulative or unwilling to submit to.the personality test. Dr. Wood said that the father’s progress from 2010 to 2014 had been “disappointing.”

However, Dr. Wood testified that the father’s claim of a “thought disorder,” like bipolar disorder, was more likely a “pursuit of a secondary gain,” which, Dr. Wood said, was access to disability compensation. Regardless, according to Dr. Wood, the father had “a host of problems,” including a propensity for physical aggression, hubris, a lack of insight, a failure to respond to recurrent feedback from DHR, methamphetamine abuse, and the experience of withdrawal symptoms when he was not using illegal substances. Dr. Wood testified:

“I looked at all of that information together and reports that he, you know, exhibited physical aggression with [the son]. So when I looked at all of this information together, basically I arrived at the idea that he had a personality disorder with mixed features, narcissism, but perhaps primarily anti-social features. That’s what I think was going on. I didn’t think it was schizophrenia. I didn’t think it was schizoaffective. I didn’t think it was even bipolar. I thought it was a protracted stimulant, amphetamine history interplayed ... with a personality disorder that developed at least by the time he was in mid-adolescence and persisted and that was basically my conclusion. So for those reasons and the drug relapse and so forth, I was not optimistic at the end of the second evaluation.
a
“There are no real local treatments for personality disorder. It is really sort of a[n] embedded distorted way of looking at yourself and other . people in the world. It also involves impulsivity, poor judgment. When you look at all of that information and the restrictive amount of time that DHR has to intervene, the long history here of having seen him now, you know, four years apart and not seeing a real significant progress, there weren’t any recommendations that I could really come up with. I have some that I have put forward, but I felt that the core problem, which is his personality disorder, was not going to resolve in a—you know, if ever, but ’certainly not within a time frame that would avail itself within DHR limits.
“[The father] said he was convicted of drug paraphernalia, possession of methamphetamine during 2008. He reported he was convicted of writing bad checks on several occasions during 2009. And he was sentenced to probation for assault during 2012. All of these cumulative factors weigh together to support that diagnosis of personality disorder.”

The father testified that his last positive drug screen had occurred in September 2015. He admitted that he had not completed drug-rehabilitation classes as requested by DHR, and, according to the father, he did not need to participate in drug-rehabilitation classes because he was no longer abusing drugs. The father testified that he wanted try to “better [him]self and be a better father. Go to school, get a better education, try to get a better job, get off my check.”

“As this court has noted, the question whether a parent has truly and completely rehabilitated so as to resume the custody of a child is a question of fact to be determined by the juvenile court. T.B. v. Cullman County Dep’t of Human Res., 6 So.3d 1195, 1199 (Ala. Civ. App. 2008).
“‘If the juvenile court is convinced from its observations that the parent acted shortly before the termination-of-parental-rights hearing so as to make it appear that he or she was addressing or had resolved identified obstacles to reunification but that, in reality, the barriers to reunification had only been temporarily removed or merely hidden, the juvenile court may conclude that grounds for termination still exist.’
“J.W.M. v. Cleburne County Dep’t of Human Res., 980 So.2d 432, 438-39 (Ala. Civ. App. 2007)(plurality opinion).”

R.L.M.S. v. Etowah Cty. Dep’t of Human Res., 37 So.3d 805, 811 (Ala. Civ. App. 2009).

When deciding whether grounds to terminate parental rights exist, the juvenile court is not limited to evidence of current conditions; it may also consider the past history of the parent. Ex parte State Dep’t of Human Res., 624 So.2d 589, 593 (Ala. 1993). From the evidence regarding the father’s past history, most of which was undisputed, the juvenile court reasonably could have inferred that the father had suffered from a long-standing inability to discharge his responsibilities to and for the daughters. The juvenile court also reasonably could have determined that the circumstances existing at the time of the trial could not correct the father’s mental-health issues that jeopardized the health, safety, and welfare of the daughters.

Based on our limited standard of review, this court may not reweigh the evidence and substitute our opinion for that of the juvenile court; instead, this court must affirm the judgment when it is supported by clear and convincing evidence that is sufficient to sustain the juvenile court’s findings. See J.C., supra. Accordingly, we do not agree that the judgments terminating the father’s parental rights should be reversed due to the alleged failure of the juvenile court to consider the current conditions of the father.

2150689—AFFIRMED.

2150690—AFFIRMED.

2150701—APPEAL DISMISSED.

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

      . K.H. did not file notices of appeal and is not a party to these appeals.

      . Although the father and K.H. are' not divorced, at the time of the termination-of-parental-rights trial, the father had been living with- another woman in Zellwood, Florida. There is one child of that relationship.

      . Testimony indicated that the son had been diagnosed with a number of mental-health issues.


author: MOORE, Judge.

text:
    Paula PARKER v. Rebecca PARKER, Stephany Parker, Heather Parker, Dan Parker, and June Parker
    2150679
    Court of Civil Appeals of Alabama.
    Nov. 10, 2016
    Stuart M. Maples and Deanna S. Smith of Maples: Law Firm, PC, Hunstville, for appellant.

      Jeffrey McLaughlin and Lea Mosley Hicks of McLaughlin & Edmondson, LLC, Guntersville, for appellees Rebecca Parker, Stephany Parker, and Heather Parker.
   MOORE, Judge.

Paula Parker appeals from a judgment entered by the Marshall Circuit Court (“the circuit court”) approving the final settlement of an estate, specifically challenging an order adopting the recommendation of a special master, who was appointed pursuant to Rule 53, Ala. R. Civ. P. We reverse the circuit court’s judgment.

Procedural History

On April ,13, 2013, John David Parker (“the decedent”) died testate. On May 24, 2013, Paula, the decedent’s surviving spouse, and Rebecca Parker Shah, the decedent’s daughter from a previous marriage, filed a petition in the Madison Probate Court (“the probate court”) to probate the will of the decedent. On May 31, 2013, the decedent’s will was admitted to probate and letters testamentary were issued to Paula' and Rebecca. On November 27, 2013, Paula filed a petition to remove the administration of the estate to the circuit court; she also filed a petition seeking to receive her elective share as a surviving spouse. On January 8, 2014, the circuit court granted the petition to remove.

On April 22, 2014, the circuit court appointed attorney David Roadruck as a special master, pursuant to Rule 53, Ala. R. Civ, P„ and ordered him to make a recommendation regarding the amount each party was to receive as his or her share of the decedent’s estate. On February 17, 2016, the special master filed his recommendation with the circuit court. On February 18, 2016, the circuit court entered an order in' accordance with' the special master’s recommendation. On March 18, 2016, Paula filed a motion to “alter, amend, or vacate” the February 18, 2016, order. Paula argued, among other things, that “the Special Master failed to serve [her] with his Recommendation in accordance with Rule 53(e)(1)[, Ala. R. Civ. P., and that,] therefore, [she had been] deprived of any opportunity to object prior to the Court’s Order adopting the Recommendation.” The circuit court set the motion for a hearing,' and on March 31, 2016, after the hearing, the circuit court entered an order denying the motion and stating that “[t]he Recommendation of the Special Master is attached to this Order.”

On May 5, 2016, the circuit court entered a judgment approving a final settlement of the estate. That judgment specifically stated: “That service of the Recommendation of the Special Master did occur on February 18, 2016, through the Alabama ! e-filing system when the Court entered its order on that date, or, alternatively, when this Court attached the Recommendation of the Special Master to it's Order entered March 31, 2016.” On May 12, 2016, Paula filed her notice of appéal tó' the Alabama Supreme Court; that court subsequently transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

Discussion

On appeal, Paula argues that the circuit court’s appointment of a special master did not comply with Rule 53. “The appointment of a special master lies within the sound discretion of the trial court, and its decision to appoint a special master should not be reversed unless the trial court clearly exceeds that discretion.” Ex parte Alabama State Pers. Bd., 54 So.3d 886, 892 (Ala. 2010). Rule 53(b), Ala. R. Civ. P., provides, in pertinent part: “[I]n actions to be tried without a jury, save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it.”

Section 43-8-70(a), Ala. Code 1975, provides that a surviving spouses’s elective share is the lesser of:

“(1) All of the estate of the deceased reduced by the value of the surviving spouse’s separate estate; or
“(2) One-third of the estate of the deceased.”

Thus, in order to determine Paula’s elective share, the circuit court must have first calculated the values of Paula’s separate estate and the decedent’s estate. This case involved multiple properties with disputed individual values; the total value of the properties at issue was over $2 million. The evidence included valuations by a certified public accountant and real-estate appraisals. Considering the complexity of the accounting and computations in this matter, we cannot conclude that the circuit court exceeded its discretion in appointing a special master.

Paula also argues that the special master acted outside his scope of authority by determining the legal issue of whether certain property should have been included in the “estate” of the decedent. The circuit court ordered the special master “to make recommendations ... as [to] sums [parties are] to receive.” As noted previously, in order to determine Paula’s elective share under § 43-8-70(a), the values of Paula’s separate estate and the decedent’s estate had to have first been determined. In order to make those determinations as ordered, the special master had to make the threshold determination as to what property composed the decedent’s estate. Rule 53(e)(1) specifies that a special master has the authority to make conclusions of law if he or she is required to do so in order to carry out the circuit court’s directives. In this case, because the special master was required to determine what properties were included in the decedent’s estate in order to carry out the circuit court’s instructions, we cannot conclude that there was any error in this regard.

Paula also argues that the special master failed to serve her with his report and recommendation and that the circuit court entered an order in accordance with the special master’s recommendation without giving her 10 days to object. Rule 53(e) provides, in pertinent part:

“(1) Contents and Filing. The master shall prepare a report upon the matters submitted to the master by the order of reference and, if required to make findings of fact and conclusions of law, the master shall set them forth in the report. The master shall file the report with the clerk of the court and serve on all parties notice of the filing. In an action to be tried without a jury, unless otherwise directed by the order of reference, the master shall file with the report a transcript of the proceedings and of the evidence and the original exhibits. Unless otherwise directed by order of reference, the master shall serve a copy of the report on each party.
“(2) In Nonjury Actions. In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous. Within ten (10) days after being served with notice of the filing of the report any party shall serve any written objections thereto upon the other parties. Applications to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(d)[, Ala. R. Civ. App.]. The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.”

In the present case, the record indicates that the special master filed his recommendation with the circuit court but did not serve it on Paula. The day after the recommendation was filed, the circuit court entered an order adopting the special master’s recommendation.

In Johnson v. Willis, 893 So.2d 1138, 1141-42 (Ala. 2004), our supreme court reversed a judgment when the circuit court failed to “follow the appropriate procedure for adopting a special master’s report.” In the present case, because the special master failed to serve Paula with a copy of the recommendation and Paula was not given the requisite 10 days to object before the circuit court entered its order adopting the special master’s recommendation, it is clear that Rule 53 was not followed. Therefore, we reverse the circuit court’s order adopting the special master’s recommendation, as well as the judgment approving the final settlement of the estate, and remand this cause for further proceedings in accordance with Rule 53 and this opinion. Johnson, 893 So. 3d at 1141-42. Although Paula makes additional arguments regarding the merits of this case, we decline to address those arguments in light of our reversal for noncompliance with Rule 53. Id.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Paula also filed a will contest; that contest was later dismissed. The will contest is not an issue in this appeal.

      . We note that Paula arguably waived this argument by failing to object to the appointment until after the order was entered on the special master's report and recommendation.


author: BURKE, Judge,

text:
    Joe Louis SPENCER v. STATE of Alabama
    CR-14-1004.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 2015.
    Rehearing Denied March 11, 2016.
    Joe Louis Spencer, pro se.
    Luther Strange, atty. gen., and Andy Scott Poole, asst. atty. gen., for respondent.
   ORDER

Joe Louis Spencer appeals the circuit court’s denial of his motion for reconsideration of his sentence filed pursuant to § 13A-5-9.1, Ala. Code 1975. In his certificate of service to the district attorney, Spencer stated that the motion for reconsideration was being mailed on March 6, 2014. The motion, however, was not received and filed by the Escambia Circuit Clerk’s office until March 23, 2015. On March 27, 2015, the circuit court entered an order denying Spencer’s motion, stating that § 13A-5-9.1, Ala.Code 1975, had been repealed with the effective date of March 13, 2014. Spencer filed a motion to reconsider the circuit court’s denial, arguing that he was entitled to have the mailbox rule applied to his pleading, which required that his filing be deemed filed on March 6, 2014, when he placed the motion in the prison mail and before the statute was repealed.

On appeal, Spencer argues that the circuit court erred in denying his motion and that he was entitled to have his motion deemed filed on March 6, 2014, when, according to Spencer, he placed it in the prison mail. The State contends that Spencer was not entitled to the application of the mailbox rule.

In the case of prisoner’s pro se pleadings the date the pleading is filed in the clerk’s office is not necessarily controlling. In Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), the United States Supreme Court developed the “prisoner mailbox rule,” which provides that a prisoner’s pro se pleading is deemed to have been filed at the time it is delivered to the proper prison authorities to be forwarded to the clerk of the court. The Alabama Supreme Court has adopted the prisoner mailbox rule and extended it to notices of appeal, Rule 32 petitions, and petitions for writ of certiorari to the Alabama Supreme Court. See generally, Ex parte Jones, 773 So.2d 989 (Ala.1998) (notice of appeal); Ex parte Williams, 651 So.2d 569 (Ala.1992) (petition for writ of certiorari): Holland v. State, 621 So.2d 373 (Ala.Crim.App.1993) (Rule 32 petition). Further, in order to receive the benefits of the prisoner mailbox rule, the inmate must use the confining institution’s system for legal mail and prove in some way the date that the pleading was deposited into the institution’s mail system. See Rule 4(c), Ala. R.App. P. (stating that a notarized statement may serve as proof); Ex parte Wright, 860 So.2d 1253, 1257 (Ala.2002) (holding that a notarized statement is just one way in which to prove the date the pleading was deposited in the mail). The mailbox rule, however, has generally only been applied to time-sensitive pleadings. Alabama courts have declined to extend the mailbox rule to filings that do not have time requirements. Allen v. State, [825 So.2d 264 (Ala.Crim.App.2001)]; Ex parte Allen, 825 So.2d 271 (Ala.2002)(declining to extend the rule to supplemental pleadings under Rule 32 where no deadlines had been imposed). The mailbox rule is not automatically required simply because a pro se inmate is involved in litigation. See N.H. v. Vickers, 865 So.2d 452 (Ala.Civ.App.2003)(mailbox rule did not apply to prisoner’s filings in civil proceedings under civil procedure rules).

Before it was repealed § 13A-5-9.1, Ala. Code 1975, did not have a filing limitation. Based on the decisions of the Alabama courts and because § 13A-5-9.1 did not impose any time requirements for petitions filed pursuant to that statute, we decline to extend the mailbox rule to motions for sentence reconsideration filed pursuant to § 13A-5-9.1. As such, Spencer’s motion was deemed filed on March 23, 2015, when it was received and filed in the clerk’s office. Act 2014-165, Alabama Acts, repealed § 13A-5-9.1, Ala.Code 1975, and became effective March 13, 2014. The Act also provides that “[a]ny case, on the effective date of this act, in which a motion filed pursuant to Section 13A-5-9.1, Code of Alabama 1975, is pending in the trial court or is subject to appeal from the denial or dismissal of a motion shall not be affected by this act.” The motion to reconsider filed in this case was not filed until March 2015, approximately a year after the effective date of Act 2014-166.

As of March 13, 2014, there is no vehicle for the circuit court to obtain jurisdiction of a motion to reconsider a sentence that is filed more than 30 days after a defendant’s sentence has been pronounced. “The trial judge lost all jurisdiction to modify the original sentence 30 days after its imposition.” Massey v. State, 587 So.2d 448, 449 (Ala.Crim.App.1991). A void judgment will not support an appeal. See Carpenter v. State, 782 So.2d 848 (Ala.Crim.App.2000). Accordingly, this appeal is DISMISSED.

WINDOM, PX and WELCH, KELLUM, and JOINER, JJ., concur. BURKE, J., dissents, with opinion.

BURKE, Judge,

dissenting.

I respectfully dissent from the majority’s order dismissing Joe Louis Spencer’s appeal based on its determination that the circuit court did not have jurisdiction to deny Spencer’s motion for reconsideration of his sentence filed pursuant to § 13A-5-9.1, Ala.Code 1975. In reaching this determination, the majority has declined to extend the “prisoner-mailbox rule” to such motions for sentence reconsideration.

Section 13A-5-9.1 was repealed by Act No. 2014-165, p.‘ 472, § 1, Ala. Acts 2014, effective March 13, 2014. In repealing that section, the legislature provided that the act was prospective only and stated: “Any case, on the effective date of this act [March 13, 2014], in which a motion filed pursuant to Section 13A-5-9.1, Code of Alabama 1975, is pending in the trial court or is subject to an appeal or pending in an appellate court on appeal from the denial or dismissal of a motion shall not be-affected by this act.” Act No. 2014-165, p. 472, § 2.

Spencer’s motion was received by and filed in the circuit clerk’s office on March 23, 2015. However, in the certificate of service on his petition, Spencer stated that he had placed the motion iii the prison mailbox on March 6, 2014, seven days before the repeal of § 13A-5-9.1.

In Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), the United States Supreme Court created the “prisoner-mailbox rule” in order to protect the rights of incarcerated pro se inmates. Noting the unique circumstances of incarcerated litigants, the Court held that a prisoner’s notice of appeal was deemed to be “filed” when he “delivered it to the prison authorities for forwarding to the court clerk.” Id. at 276, 108 S.Ct. at 2385. As noted by the majority, Alabama courts have adopted the prison-mailbox rule and extended it to Rule 32 petitions, notices of appeal, and petitions for a writ of certiora-ri to the Alabama Supreme Court. See generally, Ex parte Jones, 773 So.2d 989 (Ala.1998) (notice of appeal); Ex parte Williams, 651 So.2d 569 (Ala.1992) (petition for writ of certiorari); Holland v. State, 621 So.2d 373 (Ala.Cr.App.1993) (Rule 32 petition).

The majority also noted that Alabama courts have refused to extend the prisoner-mailbox rule to filings that do not have a time requirement. See Ex parte Allen, 825 So.2d 271 (Ala.2002) (declining to extend the rule to supplemental pleadings under Rule 32 where no deadlines had been imposed); N.H. v. Vickers, 865 So.2d 452 (Ala.Civ.App.2003) (mailbox rule did not apply to prisoner’s filings in civil proceedings under civil procedure rules). In declining to extend the mailbox rule to motions for sentence reconsideration, the majority correctly .points out that, “[b]e-fore it was repealed, § 13A-5-9.1, Ala. Code 1975, did not have a filing limitation.” Accordingly, those motions were not time sensitive, and . the. prisoner-mailbox- rule would have had no application..

However, by repealing § 13A-5-9.1 and stating that any motions filed prior to the effective date of its repeal would not be affected by its repeal, the Legislature effectively placed a time limitation on motions for sentence reconsideration. Thus, I find the present situation distinguishable from those described in Ex parte Allen and Vickers, supra. Accordingly, I would apply the prisoner-mailbox rule to the present case and therefore disagree with the majority’s conclusion that the circuit court did not háve jurisdiction to rule on Spencer’s motion.

Based on the foregoing, I would remand the present case to the circuit court with instructions that it rule on Spencer’s motion.