text:
    EX PARTE JEWELS BY PARK LANE, INC., et al.
    In re: Jennifer Miller v. Kathy Cassidy, individually, and d/b/a Park Lane Jewelry, and Jewels by Park Lane, Inc.
    1160333
    Supreme Court of Alabama.
    June 23, 2017
    Clark A. Cooper of Balch & Bingham LLP, Birmingham, for petitioners.
    Submitted on mandamus petition only.
   BOLIN, Justice.

Jewels by Park Lane, Inc. (hereinafter referred to as "JBPL"), and Kathy Cassidy, the national director for JBPL, seek a writ of mandamus compelling the Tallapoosa Circuit Court to vacate its order denying their motion to dismiss an action against them on the ground of improper venue arising out of a forum-selection clause and to enter an order dismissing the case. We grant the petition and issue the writ.

Facts and Procedural History

JBPL is a multilevel marketing company that sells jewelry through independent contractors who host parties offering JBPL's jewelry line for sale. Jennifer Miller lives and works in Alabama. In July 2015, Miller attended an annual convention hosted by JBPL in Rosemont, Illinois. At that time, Miller worked for a competitor of JBPL.

On August 4, 2015, Miller and JBPL entered into a "director agreement." The front of the agreement set out Miller's personal information along with the name of the JBPL person who "sponsored" her and the name of the JBPL manager to whom Miller would answer. The director agreement further provided, in pertinent part:

"I hereby apply to become an Independent Contractor of [JBPL]. As an Independent Contractor of JBPL, I understand and agree to the following terms:
"....
"16. The director agrees that this Agreement has been drafted in accordance with the laws of the state of Illinois, and that the company is a [sic] Illinois corporation. The director agrees that the company may use equitable remedies (including specific performance and injunctive relief) in addition to any other remedies available, for any actions of the director which may be deemed to be in violation of this Agreement or in violation of any of the company's programs. Any disputes arising hereunder shall be solely governed by and interpreted in accordance with the laws of the state of Illinois and personal and subject matter jurisdiction is solely vested in the courts of the state of Illinois."

The reverse side of the agreement contains a space for the name and address of the executive training manager to whom Miller's jewelry kit is to be sent. That space has one word filled in; it appears to read "Sent." The reverse side of the director agreement also provides spaces for the director, i.e., Miller, to set out the upcoming home parties at which JBPL's jewelry line will be displayed to potential customers. This part of Miller's director agreement is blank.

Another part of the director agreement provides, in pertinent part, as follows:

"Leader Direct Appointment Approval Authorization
"(Complete the following when Applicable.)
"1. Experienced candidate to be appointed to the management level of:
"___________.
"2. Explain the candidate's party plan/direct sales management experience. List companies he/she has represented and position/titles previously achieved.
"___________.
"3. Have you discussed this appointment with your Sr. Division and/or Vice-President?
"___________.
"Their name:___________
"4. Verbal approval from a Home Office executive must be obtained prior to extending an offer of direct appointment to a management level. A manager agreement submitted without prior Home Office authorization cannot be processed.
"I verbally secured Home Office approval from:
"___________.
"Sponsor's Signature:
"___________.
"I acknowledge that the information regarding my experience is accurate and true.
"Leader candidate's signature:
"
"Date:___________"

This part of Miller's director agreement has been completed with the relevant information.

On June 7, 2016, Miller sued JBPL and Cassidy. Miller alleged that JBPL promised to employ her for a 12-month period and to pay her $4,000 a month for that period. Miller set out claims alleging account stated, open account, breach of contract, and fraud. Miller sought compensatory damages, punitive damages, and attorney fees. Miller attached a letter to her complaint. The letter, dated "August 2015," provides:

"Dear Jennifer,
"Congratulations on your appointment to the Executive Position of Sales Vice President. As was shared with you confidentially in our meeting, in addition to our very generous compensation plan for the position of Sales Vice President, you will receive the following:
"For a period of 1 year: (review at end)
"$4,000 per month with an expectation to build to 10 new personal/group recruits who begin on a Wednesday payroll date in the same calendar month with a minimum of $500 net (commissionable) sales.
"In addition:
"$1,000 for every additional 10 new personal/group recruits, over and above the initial 10 and meeting the same sales and start date requirements, to a maximum of $8,000/month.
"This bonus will be paid on the first payroll of the following month and be attached to your paycheck earned through personal commission and/or group sales overrides.
"You May also choose 7 sets from our new catalog (pgs 1-87) to add to your kit.
"Welcome to the Park Lane Family, Jennifer. We look forward to working together for many years to come!
"/s/ Kathy Cassidy"

On August 12, 2016, JBPL and Cassidy filed a joint Rule 12(b)(3), Ala. R. Civ. P., motion to dismiss Miller's action based on improper venue. They argued that the outbound forum-selection clause in the director agreement required Miller to bring her action in Illinois. Subsequently, Miller amended her complaint to include a fraud-in-the-inducement claim. Miller admitted that the director agreement contained a forum-selection clause but argued that she would not have entered into the agreement but for the fraud perpetuated by JBPL and Cassidy. The defendants responded, arguing that, in order to void the forum-selection clause, the fraud must be directed to that particular clause and not to the contract as a whole. Following a hearing at which the parties discussed only the arguments related to the defendants' Rule 12(b)(3) motion, the trial court denied the defendants' motion to dismiss. JBPL and Cassidy timely filed a petition for a writ of mandamus.

Standard of Review

" 'Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995)."

Ex parte CTB, Inc., 782 So.2d 188, 190 (Ala. 2000).

"[A]n attempt to seek enforcement of the outbound forum-selection clause is properly presented in a motion to dismiss without prejudice, pursuant to Rule 12(b)(3), Ala. R. Civ. P., for contractually improper venue. Additionally, we note that a party may submit evidentiary matters to support a motion to dismiss that attacks venue. Williams v. Skysite Communications Corp., 781 So.2d 241 (Ala. Civ. App. 2000), quoting Crowe v. City of Athens, 733 So.2d 447, 449 (Ala. Civ. App. 1999)."

Ex parte D.M. White Constr. Co., 806 So.2d 370, 372 (Ala. 2001).

Discussion

At the outset, we note that "[a]n outbound forum-selection clause-a clause by which parties specifically agree to trial outside the State of Alabama in the event of a dispute-implicates the venue of a court rather than its jurisdiction. See Ex parte CTB, Inc., 782 So.2d 188 (Ala. 2000) ; and O'Brien Eng'g Co. v. Continental Machs., Inc., 738 So.2d 844, 845 n. 1 (Ala. 1999)." Ex parte Leasecomm Corp., 879 So.2d 1156, 1158 (Ala. 2003). In F.L. Crane & Sons, Inc. v. Malouf Construction Corp., 953 So.2d 366 (Ala. 2006), this Court held that an outbound forum-selection clause raises procedural issues and is governed by the law of the forum jurisdiction addressing the issue, which, in that case, was this Court. The Crane Court relied on Ex parte Procom Services, Inc., 884 So.2d 827 (Ala. 2003), in which this Court decided the validity of an outbound forum-selection clause under Alabama law despite a choice-of-law clause in the contract stating that Texas law governed disputes between the parties.

In Professional Insurance Corp. v. Sutherland, 700 So.2d 347 (Ala. 1997), this Court adopted the majority rule that an outbound forum-selection clause should be enforced so long as its enforcement is neither unfair nor unreasonable under the circumstances. An outbound forum-selection clause is enforceable unless the party challenging the clause can clearly establish that enforcement of the clause would be unfair on the basis that the contract was affected by fraud, undue influence, or overweening bargaining power or that enforcement would be unreasonable on the basis that the chosen forum would be seriously inconvenient for the trial of the action. Ex parte Leasecomm, 879 So.2d at 1159.

With regard to the inconvenience of the selected forum, this Court has stated:

" ' "When an agreement includes a clearly stated forum-selection clause, a party claiming that clause is unreasonable and therefore invalid will be required to make a clear showing of unreasonableness. In determining whether such a clause is unreasonable, a court should consider these five factors: (1) Are the parties business entities or businesspersons? (2) What is the subject matter of the contract? (3) Does the chosen forum have any inherent advantages? (4) Should the parties have been able to understand the agreement as it was written? (5) Have extraordinary facts arisen since the agreement was entered that would make the chosen forum seriously inconvenient? We state these items not as requirements, but merely as factors that, considered together, should in a particular case give a clear indication whether the chosen forum is reasonable." ' "

Ex parte Nawas Int'l Travel Serv., Inc., 68 So.3d 823, 827 (Ala. 2011) (quoting Ex parte Rymer, 860 So.2d 339, 342-43 (Ala. 2003), quoting in turn Ex parte Northern Capital Res. Corp., 751 So.2d 12, 15 (Ala. 1999) ).

Here, Miller, the party challenging the forum-selection clause, has not shown that the chosen forum is a seriously inconvenient venue for the trial of this case. Miller contends that she was a "director" in name only and was not to operate as an independent contractor but, instead, was hired as a sales vice president for JBPL. However, Miller acknowledges that she signed the director agreement that contains the forum-selection clause. Miller does not argue that the forum-selection clause is ambiguous. The chosen forum is the location of JBPL's headquarters, and JBPL's sole office is in Illinois as well. Cassidy travels to JBPL's headquarters to conduct business on regular basis. Miller traveled to Illinois to attend the JBPL convention. Miller does not argue that any extraordinary circumstances have arisen since the director agreement was entered into that would make Illinois a seriously inconvenient forum.

We now turn to whether enforcement of the forum-selection clause would be unfair on the basis that the director agreement was affected by fraud, undue influence, or overweening bargaining power. Miller does not argue that she was subject to undue influence in the negotiation or execution of the director agreement or that JBPL or Cassidy had overweening bargaining power over her. Instead, Miller asserts that the defendants fraudulently induced her to sign the director agreement.

This Court has explained:

"[T]he proper inquiry is whether the forum-selection clause is the result of fraud in the inducement in the negotiation or inclusion in the agreement of the forum-selection clause itself. If the forum-selection clause is the result of fraud in the inducement, then the fraud exception to the enforceability of the clause applies. However, if the claim of fraud in the inducement is directed toward the entire contract, the fraud exception to enforcement of the forum-selection clause does not apply."

Ex parte Leasecomm, 879 So.2d at 1159 (emphasis added); see also Ex parte PT Solutions Holdings, LLC, 225 So.3d 37, 44-45 (Ala. 2016) (explaining that the logic behind considering the validity of the forum-selection clause before analyzing the validity of the contract as a whole is to ensure that the more general claims of contractual fraud will be litigated in accordance with the contractual expectations of the parties in selecting a forum).

In the present case, Miller argues that she was fraudulently induced to sign the director agreement as a whole. The fraud alleged was not specific to the forum-selection clause itself. See Ex parte Soprema, Inc., 949 So.2d 907 (Ala. 2006) (holding that the plaintiff did not meet the exception to the enforcement of the forum-selection clause where the plaintiff's allegations of fraud related to the agreement generally and were not directed to the forum-selection clause); Ex parte Procom Servs., Inc., 884 So.2d 827 (Ala. 2003) (holding that because the plaintiff alleged only that he had relied upon fraudulent statements pertaining to his salary when he entered into his employment contract, he failed to clearly establish that enforcement of the forum-selection clause was unfair as he failed to allege that the forum-selection clause was affected by fraud). Therefore, Miller failed to clearly establish that the enforcement of the forum-selection would be unreasonable or unfair.

Conclusion

Accordingly, we conclude that JBPL and Cassidy have shown a clear legal right to have the action against them dismissed on the basis that venue in the Tallapoosa Circuit Court is, by application of the outbound forum-selection clause, improper. The trial court exceeded its discretion in denying their motion to dismiss Miller's action. We direct the court to dismiss the cause, without prejudice, pursuant to Rule 12(b)(3), Ala. R. Civ. P.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur.

Sellers, J., recuses himself.

      The defendants also moved to dismiss Miller's complaint pursuant to Rule 12(b)(6), Ala. R. Civ. P. At the hearing on their motion to dismiss, the parties discussed only the forum-selection clause. In their mandamus petition, the defendants state that the petition is based solely on Rule 12(b)(3).


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    P.H. v. COLBERT COUNTY DEPARTMENT OF HUMAN RESOURCES
    2150863, 2150864, 2150865, 2150866
    Court of Civil Appeals of Alabama.
    December 16, 2016 As Modified on Denial of Rehearing Feb. 10, 2017. Certiorari Denied June 9, 2017
    Alabama Supreme Court 1160427, 1160428, 1160429, and 1160430
    Leigh Anne Landis, Tuscumbia, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellee.
   MOORE, Judge.

P.H. ("the mother") appeals from a judgment entered by the Colbert Juvenile Court ("the juvenile court") in four separate actions terminating her parental rights to T.B., H.B., C.B., and C.H. ("the children"). We affirm the juvenile court's judgment.

Procedural History

On January 26, 2016, the Colbert County Department of Human Resources ("DHR") filed separate petitions to terminate the parental rights of the mother to the children. The mother answered the petitions on June 6, 2016. After a trial, the juvenile court entered a judgment terminating the mother's parental rights to the children. The mother filed her notices of appeal on July 15, 2016.

Facts

Mary Ellen Mayfield, a caseworker for DHR, testified that the children had previously been placed in foster care in August 2013. The record indicates that DHR had removed the children from the mother's care at that time based on the mother's drug use and her allowing individuals who were under the influence of drugs or alcohol to supervise the children. On August 18, 2015, the juvenile court entered an order, over the objection of DHR, returning custody of the children to the mother. The juvenile court specifically found that the mother had obtained stable housing and transportation, had maintained employment, had completed intensive outpatient drug treatment and parenting classes, had maintained consistent visitation with the children, and had tested negative on all drug screens. The juvenile court also noted that the mother had denied a current relationship with B.P., who had been reported to be a drug addict and to be abusive toward the mother, and had denied that B.P. had had access to the children.

The mother testified that, in August 2015, when the children were returned to her care, she was living in a mobile home. She testified that, within a week after the children were returned to her, one of the children had informed her that a DHR worker had spoken to her at school. The mother testified that she had decided to hide from DHR and that she had taken the children to Mississippi where, she said, they had stayed in various hotels until she ran out of money. The mother testified that, at that point, she and the children went to stay with B.P.'s grandmother. She testified that, once DHR found out where she was staying, she, B.P., and the children moved to another house in an effort to hide from DHR. She admitted that the weather had been cold and that the only source of heat in the house was a space heater in one room.

Ariel Brown, another DHR caseworker, testified that, on November 24, 2015, DHR had located the mother, B.P., and the children in the house and that the house had had no heat at that time. She testified that there also was no running water or furniture in the house, that the children were dirty, and that three of the children had had severely matted hair. The mother disputed that testimony. The mother admitted that she had refused to submit to a drug screen and that B.P. had tested positive for marijuana and alcohol. The evidence also indicated that three of the children had tested positive for methamphetamine; the mother testified that the children had taken cold medicine. Brown and Mayfield testified that the mother had been arrested for minor traffic offenses at that time and that the children had been placed in foster care.

Mayfield testified that when the children were taken back into DHR's custody, DHR had asked the mother to complete a substance-abuse assessment, to attend counseling, and to submit to a mental-health evaluation. The mother had not submitted to the mental-health evaluation; she had attended counseling for only one month and was not attending counseling at the time of the trial. Mayfield also testified that DHR had recommended that the mother submit to a domestic-violence assessment and that the mother had made an appointment for a domestic-violence assessment in January 2016 but had failed to attend that assessment. Mayfield testified that the mother had completed a substance-abuse assessment that had resulted in a recommendation that the mother attend inpatient drug treatment. She testified that she had informed the mother that DHR would pay for that treatment but that the mother had failed to complete that treatment because, she stated, the mother had not felt like she needed it. The mother admitted that, after completing outpatient drug treatment, she had been able to maintain her sobriety only three or four months. Indeed, the mother tested positive for marijuana in January and May 2016.

Mayfield testified that DHR had set up weekly visitations for the mother but that the mother had failed to visit between February 10, 2016, and May 4, 2016. The mother testified that, during that time, she had been held captive by B.P. She specifically testified that she had been allowed to leave his home only to go to work cleaning houses. She also testified that B.P. had severely abused her during that time, including having broken her jaw. Mayfield testified, however, that the mother had previously told her that she had broken her jaw in a fall. The mother testified that B.P.'s grandmother had eventually telephoned the police and that she had then gone to Safeplace, a domestic-violence shelter, for one month; the mother received counseling during the time she was at Safeplace

The mother admitted that, since November 2015, she had lived at eight places and that she had been in jail on two separate occasions. She testified, however, that a day before the trial, she had signed a lease on a house and that she had recently been hired to work at a gas station. She admitted that, at the time of trial, there were no utilities at the house and that there were no beds set up for the children.

Standard of Review

A judgment terminating parental rights must be supported by clear and convincing evidence, which is " ' "[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion." ' " C.O. v. Jefferson Cty. Dep't of Human Res., 206 So.3d 621, 627 (Ala. Civ. App. 2016) (quoting L.M. v. D.D.F., 840 So.2d 171, 179 (Ala. Civ. App. 2002), quoting in turn Ala. Code 1975, § 6-11-20(b)(4) ).

" '[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly ... establish the fact sought to be proved.'
" KGS Steel[, Inc. v. McInish,] 47 So.3d [749] at 761 [ (Ala. Civ. App. 2006) ].
"To analogize the test set out ... by Judge Prettyman [in Curley v. United States, 160 F.2d 229, 232-33 (D.C. Cir. 1947),] for trial courts ruling on motions for a summary judgment in civil cases to which a clear-and-convincing-evidence standard of proof applies, 'the judge must view the evidence presented through the prism of the substantive evidentiary burden'; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court's weighing of the evidence, that would 'produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion.' "

Ex parte McInish, 47 So.3d 767, 778 (Ala. 2008). This court does not reweigh the evidence but, rather, determines whether the findings of fact made by the juvenile court are supported by evidence that the juvenile court could have found to be clear and convincing. See Ex parte T.V., 971 So.2d 1, 9 (Ala. 2007). When those findings rest on ore tenus evidence, this court presumes their correctness. Id. We review the legal conclusions to be drawn from the evidence without a presumption of correctness. J.W. v. C.B., 68 So.3d 878, 879 (Ala. Civ. App. 2011).

Discussion

On appeal, the mother first argues that there was not clear and convincing evidence of grounds to terminate her parental rights.

Section 12-15-319, Ala. Code 1975, provides, in pertinent part:

"(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parent[ ] of a child [is] unable or unwilling to discharge [his or her] responsibilities to and for the child, or that the conduct or condition of the parent[ ] renders [him or her] unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parent[ ]. In determining whether or not the parent[ ] [is] unable or unwilling to discharge [his or her] responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following:
"....
"(2) Emotional illness, mental illness, or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of a duration or nature as to render the parent unable to care for needs of the child.
"....
"(7) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parent[ ] have failed.
"....
"(10) Failure by the parent[ ] to maintain regular visits with the child in accordance with a plan devised by the Department of Human Resources, or any public or licensed private child care agency, and agreed to by the parent.
"(11) Failure by the parent[ ] to maintain consistent contact or communication with the child."

In the present case, the evidence indicated that, despite reasonable efforts by DHR and the mother's completion of a drug-treatment program, the mother had been unable to overcome her drug addiction. Ala. Code 1975, § 12-15-319(a)(2) & (7). Moreover, despite the recommendation that the mother complete inpatient drug treatment and DHR's willingness to pay for that treatment, the mother had refused to submit to it. In addition, the evidence indicated that the mother had failed to visit with the children for a period of three months. § 12-15-319(a)(10) & (11). Finally, although the mother claimed that she had moved on from an unhealthy relationship with B.P., the mother had again become involved with B.P. shortly after the children were returned to her custody. The mother's actions resulted in the children's not being properly cared for, being moved from place to place, hiding from DHR, living in a house with no heat, and having poor hygiene. Based on the foregoing, the juvenile court could have properly concluded that there was clear and convincing evidence indicating that the mother was "unable or unwilling to discharge [her] responsibilities to and for the child[ren]." § 12-15-319(a).

The mother next argues that DHR failed to use reasonable efforts to reunify her with the children. She specifically argues that DHR placed unreasonable restrictions on her visitation, that she had not known that DHR would pay for inpatient drug treatment until the month before the trial, and that she had been unable to make efforts to rehabilitate herself for three months because she had been held captive by B.P. We note, however, that the juvenile court heard evidence indicating that the mother had told Mayfield that she did not need inpatient drug treatment. Additionally, the evidence indicated that, for a three-month period and through no fault of DHR, the mother had failed to visit with the children. The juvenile court found the mother's explanation for not visiting the children during that three-month period, i.e., her being held captive by B.P.

except when she went to work, to be "bizarre." See Ex parte McInish, 47 So.3d at 778 (holding that the juvenile court must weigh the evidence). Furthermore, the mother herself, not DHR, made the choice to repeatedly become involved with B.P. to the detriment of the children.

We note that DHR is required to use " 'reasonable' efforts, not unlimited or even maximal efforts," to reunify a parent with a child. M.A.J. v. S.F., 994 So.2d 280, 292 (Ala. Civ. App. 2008). In the present case, it is clear that DHR used reasonable efforts, including offering drug treatment to the mother and referring her for a domestic-violence assessment. Therefore, we do not find error on this point.

Finally, the mother argues that there were viable alternatives to termination of her parental rights. Specifically, she argues that it would be in the best interests of the children to allow her to visit while the children remain in foster care or with a relative and she continues to rehabilitate herself.

In A.F. v. Madison County Department of Human Resources, 58 So.3d 205 (Ala. Civ. App. 2010), this court considered a case in which a mother had "failed to adjust her circumstances and resolve her substance-abuse problem over a four-year period." 58 So.3d at 214. The mother in A.F. argued that her parental rights could not be terminated because the half brother of the father of the child and the wife of the half brother had not been excluded as potential custodians for the child by the Madison County Department of Human Resources and because the juvenile court had commented that, after terminating the mother's parental rights, it would consider placing the child with those relatives. This court reasoned that, once the juvenile court had determined that the mother was not likely to overcome her drug addiction so as to be in a position to safely assume custody of the child within the foreseeable future, the juvenile court "was no longer required to consider whether a viable placement alternative existed before terminating the mother's parental rights." Id. at 215. Thus, this court held, the mere fact that the child could possibly be placed with relatives did not prevent the juvenile court from entering a judgment terminating the parental rights of the mother to the child.

Similarly, in the present case, the juvenile court could have been clearly convinced that the mother would not overcome the barriers to reunification with the children. Therefore, the juvenile court "was no longer required to consider whether a viable placement alternative existed before terminating the mother's parental rights." A.F., 58 So.3d at 215. We further note that the mother had failed to visit the children at all for a three-month period and that the children had been traumatized by her failing to show up for visitations. The evidence indicated that DHR had an adoptive resource who was willing to adopt all four of the children. Considering the mother's failure to rehabilitate herself and her lack of consistency in visitation, the juvenile court could have properly concluded that there was no viable alternative to termination of her parental rights.

Conclusion

Based on the foregoing, we affirm the juvenile court's judgment.

2150863-AFFIRMED.

2150864-AFFIRMED.

2150865-AFFIRMED.

2150866-AFFIRMED.

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

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

      DHR also petitioned to terminate the parental rights of D.B., the father of T.B., H.B., and C.B., as well as the parental rights of D.C., the alleged father of C.H., and any unknown father of C.H. The juvenile court terminated the parental rights of all the aforementioned parties, and that aspect of the judgment is not at issue on appeal.


author: DONALDSON, Judge.

text:
    C.C.N. v. R.E.S.
    2150588
    Court of Civil Appeals of Alabama.
    April 07, 2017 Certiorari Denied June 9, 2017
    Alabama Supreme Court 1160633
    Scott W. Hunter, Daphne; and Ginger Poynter, Mobile, for appellant.
    Robert E. Lusk, Jr., of Lusk Law Firm, LLC, Fairhope, for appellee.
    On Application for Rehearing
   DONALDSON, Judge.

This court's no-opinion order of affirmance issued on February 10, 2017, is withdrawn, and the following is substituted therefor.

C.C.N. ("the father") appeals from the judgment of the Mobile Juvenile Court ("the juvenile court") denying his petition to modify a custody order pertaining to A.B.S. ("the child"). We affirm the judgment.

Facts and Procedural History

The father and R.E.S. ("the mother") were in a dating relationship for approximately six months. After they ended the relationship, the mother discovered that she was pregnant. The father was initially permitted to attend prenatal appointments with the mother, but, because the parties consistently argued, the mother refused to allow the father to continue to attend. The child was born on April 24, 2009. Shortly after the child's birth, the father initiated an action in the juvenile court seeking a judgment declaring his paternity of the child and an award of custody of the child, which action was docketed as case number CS-09-5695 ("the CS case"). In February 2012, in addition to establishing the father's paternity of the child, the juvenile court awarded the parents joint legal custody and the mother sole physical custody, with the father having visitation. It is not entirely clear from the record, but it appears that the order containing that custody award was appealed to the Mobile Circuit Court ("the trial court") for a de novo review because the record was not certified as adequate, pursuant to Rule 28(B), Ala. R. Juv. P. The appeal was assigned case number DR-12-58 ("the DR case"). In March 2013, the parties entered into an agreement in the DR case pursuant to which they would have joint legal custody, the mother would have sole physical custody, and the father would have "standard visitation." The agreement was adopted as an order of the trial court in the DR case.

On December 10, 2013, the father filed in the trial court a pleading that he described as an "Instanter Motion for Modification of Custody." The trial-court clerk docketed the pleading as case number DR-12-58.01 ("the DR .01 case"). On February 7, 2014, the mother filed a motion in the DR .01 case to suspend visitation, in which she asserted that the child had disclosed that the father had sexually abused the child. The parties filed numerous additional pleadings, including motions for immediate change of custody, motions to suspend visitation, and motions for contempt. Each party made various allegations of parental alienation against the other. The mother made numerous allegations that the father had sexually abused the child and attempted to terminate the father's parental rights on three different occasions.

On June 6, 2014, after a hearing, the trial court entered an order in the DR .01 case granting pendente lite sole physical custody to the father and granting visitation to the mother. At a hearing in the DR .01 case on September 19, 2014, the assigned trial-court judge, Judge Edmond G. Naman, disclosed that he had been contacted ex parte on behalf of the mother, that he had received what he considered to be political threats related to the case, and that he believed that he needed to recuse himself.

On September 23, 2014, Judge Naman entered the following order in the DR .01 case:

"The Court having reviewed the above numbered petition, it has been ascertained that said petition should have been filed under Case Number CS 2009 5695 as the next point designator (the court notes that the above numbered case was a De Novo Appeal from the said CS 2009 5695 case when an adequate record could not be produced. The order from said case should have been entered into the Juvenile court file as the final order therein, thereby terminating the Circuit Court jurisdiction over these parties and the child who is the subject matter of the case.)
"It is therefore ORDERED, that the above numbered petition is hereby transferred to the Juvenile Court and the Clerk shall cause the same to be properly docketed. It is further ORDERED that the undersigned recuses himself in said case and the case shall be assigned to the Honorable George Brown, District Judge."

The case was then docketed in the juvenile court as case number CS-09-5695.02. It is unclear from the record whether there was a case number CS-09-5695.01. On January 15, 2015, after a hearing, the juvenile court entered an order prohibiting contact between the child and the child's maternal grandmother. The juvenile court also adopted and confirmed the previous pendente lite custody order entered by the trial court in the DR .01 case. The juvenile court opined that the December 2013 petition filed by the father had been improperly filed in the trial court and should have been filed in the juvenile court.

On September 23, 2015, the juvenile court entered another pendente lite order that, among other things, dissolved the previous order of temporary custody to the father and granted the parties joint legal and physical custody pending the final hearing. The juvenile court also ordered that the child could have no contact with certain family members of the parents.

On March 22, 2016, after multiple days of testimony, the juvenile court entered an order denying the father's petition to modify custody and finding, in part, as follows:

"The Court took extensive testimony over multiple days, and at the conclusion thereof, the Court did fail to find evidence presented sufficient to overcome the [Ex parte] McLendon [, 455 So.2d 863 (Ala. 1984),] standard and thereby warrant a modification of custody.
"Specifically, the Court finds that both the Mother/Defendant and the Father/Plaintiff have been involved in litigation concerning the child's custody almost since the time the child was born. Said litigation has taken the form of a petition for custody shortly after the child was born which was litigated extensively, and a trial de novo appeal of same which was extensively litigated, before Circuit Judge Edmond Naman, both trials resulting in a finding that the best interests of the child would be served by an award of custody to the mother with standard visitation to the father.
"Subsequent thereto, the father filed his current petition, and numerous motion hearings were conducted, counselors were assigned by Judge Naman prior to the case being reassigned to the undersigned, and temporary orders were put into place concerning the child's custody. The most recent temporary order which was put into place by the undersigned, mandated that the parents equally share the custody of the child on a week to week basis with weekly exchanges, and, that no collateral relative be allowed to have contact with the child. This order was put in place as a temporary order in [September] 2015, pending the final hearing in the matter on February 18 and February 25, 2016. The Court further ordered that the child could not be taken to a counselor without permission of the Court and the Guardian ad Litem. The Court finds that subsequent to said order no one presented any evidence that the child suffered any harm by not seeing collateral relatives, nor that the child suffered any harm by not being taken to a counselor.
"The Court finds that the extreme antagonistic behaviors presented by each parent toward the other, and as exacerbated by collateral relatives, namely grandparents, most importantly, has led to a constant instability in the child's life and a constant situation of discord. The Court finds that this condition in the child's life has existed since the time she was born, and continues to exist and therefore there is no change of circumstances in the child's life.
"The Court further finds that while it could certainly be interpreted that the mother's claims of sexual abuse at the hands of the father could amount to an attempt at alienation of the child from the father, the Court finds from the testimony of Dorothy Ward that the mother has made a real and genuine effort to accept that there was no abuse at the hands of the father and to attempt to be cooperative and to 'co-parent' the child with the ... Father. The Court further finds from Ms. Ward's testimony that the father attended 3 meetings and informed her in writing that 'he did not find it to be in his best interest' that he continue with the co-parenting counseling. The Court finds that the father has not placed the needs and interests of the child ahead of his own and that behavior has been consistent throughout the history of this case.
"The Court finds that during the course of his own testimony the father stated that he believed the mother believed he committed the acts of abuse. If the Court were to accept this then all of the acts of the mother in attempting to prevent the child from having contact with the father and in complaining to the authorities about the sexual abuse would be completely justified even if in fact the abuse didn't occur, because her belief would mandate that she attempt to protect her child in this manner.
"The Court further finds that there has been no significant evidence presented that a change of custody would benefit the child in any way whatsoever, even if a change in circumstances could be established. To the contrary, the Court finds that it is likely the parents will never cooperate with one another to co-parent the child nor will they act consistently in the best interests of the child but rather in their own perceived best interests.
"From the foregoing the Court finds that insufficient evidence has been presented which would warrant a change in custody...."

The juvenile court also reinstated the father's previous child-support obligation of $265 per month.

On April 1, 2016, the father filed a motion to alter, amend, or vacate the judgment. On April 15, 2016, the father filed a notice of appeal to this court. The juvenile court entered an order on April 20, 2016, purporting to deny the father's postjudgment motion. That motion, however, had been denied by operation of law on April 15, 2016. See Rule 1(B), Ala. R. Juv. P.

Discussion

In the September 23, 2014, order, Judge Naman purported to recuse himself and "assign" the DR .01 case to the juvenile court. The father did not raise an objection to that procedure until he filed his appellate brief. On appeal, the father argues that Judge George A. Brown, the juvenile-court judge, lacked jurisdiction to hear the case because, he asserts, a judge who recuses himself cannot name his own replacement. The mother asserts that Judge Naman's assignment of Judge Brown is not a jurisdictional defect and that the father failed to preserve the issue for appellate review.

In support of his argument, the father cites Ex parte Jim Walter Homes, Inc., 776 So.2d 76, 78 (Ala. 2000), in which our supreme court held that a judge "who has been disqualified from presiding over a case by the Canons of Judicial Ethics, [cannot], pursuant to Rule 13, Ala. R. Jud. Admin., appoint his successor." In that case, however, the defendants objected to the judge's assignment at the first proceeding in which the assigned judge presided, and the defendants filed a petition for the writ of mandamus before the assigned judge made any rulings. Id. This court has explained that a "party may not lie in wait and raise the issue of recusal after learning the outcome of the proceeding." Adams v. Board of Trs. of Univ. of S. Alabama, 676 So.2d 1326, 1328 (Ala. Civ. App. 1996). In Hornady Truck Lines, Inc. v. Howard, 985 So.2d 469, 476 (Ala. Civ. App. 2007), this court, in interpreting Jim Walter Homes, reaffirmed the principle that a party waives issues related to the purported disqualification of a trial judge if the party does not raise the objection in the trial court. See also Edge v. Edge, 494 So.2d 71, 72 (Ala. Civ. App. 1986) ("[T]he issue of a trial judge's qualification or disqualification to preside over a case cannot be raised on appeal if it was not raised before the trial court.").

In his reply brief, the father cites L.R.S. v. M.J., 229 So. 3d 772 (Ala. Civ. App. 2016), in asserting that Judge Brown, a district-court judge in the Thirteenth Judicial Circuit, was never granted proper authority to hear the case and that his orders are void for lack of jurisdiction. In L.R.S., this court held that a judgment entered by a district-court judge serving as a juvenile-court judge was void because the case did not fall within the jurisdiction of the juvenile court but, instead, fell within the jurisdiction of the circuit court. On rehearing, a majority of this court determined that a standing order under which the case was purportedly assigned, which authorized the district-court judge to function as a circuit-court judge, was invalid as an improper attempt to enlarge the jurisdiction of the district court. This court noted that, although Rule 13(A), Ala. R. Jud. Admin., authorizes the temporary assignment of judges, the standing order at issue in L.R.S." 'affect[ed] the jurisdiction of the Mobile Juvenile Court in a manner that violates the constitutional limitation on the judicial rule-making power, and, hence, we find the standing order to be void ab initio." L.R.S., 229 So. 3d at 779 (opinion on rehearing). In contrast, nothing in the record in this case suggests that the trial court's transfer of the case to the juvenile court was pursuant to the standing order at issue in L.R.S. Moreover, as explained above, the father did not preserve for appellate review any objection to any procedural irregularity in Judge Naman's transfer of the case after his recusal.

The father also argues that the juvenile court, regardless of the manner in which the judge was assigned, lacked jurisdiction to hear this matter because, he asserts, it is simply a custody dispute between parents and is therefore excluded from the juvenile court's jurisdiction. In support of his argument, the father again cites L.R.S.; however, as noted in our opinion on original submission in L.R.S., that case concerned the jurisdiction of a juvenile court to entertain an initial custody action when no finding of dependency had been made. L.R.S., 229 So. 3d at 776 ("[A] juvenile court cannot use its dependency jurisdiction to dispose of the custody of a child unless the juvenile court finds the child to be dependent."). In contrast, the case before us involves a modification of a previous juvenile-court judgment. As we noted on original submission in L.R.S., a "juvenile court does have jurisdiction to decide the parentage of a child under Ala. Code 1975, § 12-15-115(a)(6), which, by reference to the Alabama Uniform Parentage Act, Ala. Code 1975, § 26-17-101 et seq., gives the juvenile court jurisdiction to decide the custody of the subject child and to assess child support." Id. at 777. See also § 26-17-104, Ala. Code 1975 ("A circuit or district court of this state or any other court of this state, as provided by law, shall have original jurisdiction to adjudicate parentage pursuant to this chapter and may determine issues of custody, support, and visitation incidental to a determination of parentage.").

Section 12-15-115(a)(7), Ala. Code 1975, provides that the juvenile court has original jurisdiction over "[p]roceedings to establish, modify, or enforce support, visitation, or custody when a juvenile court previously has established parentage." The record indicates that the juvenile court previously entered a judgment in the CS case establishing, among other things, the child's parentage and that, in this action, the father sought to modify that judgment. According to various orders of the juvenile court, the father's petition to modify was incorrectly docketed by the trial-court clerk as the DR .01 case; as noted earlier, the initial DR case had been a de novo appeal of the CS case. Just as we noted on original submission in L.R.S. that "[t]he erroneous designation of the case as a 'CS' case did not bestow subject-matter jurisdiction on the juvenile court," 229 So. 3d at 776-77, here, too, although the trial-court clerk erroneously docketed the petition to modify as a "DR" case, the petition should have been docketed as a "CS" case, because it sought to modify a prior order of the juvenile court. Accordingly, the trial court's transfer of the case to the juvenile court is not reversible. See Ex parte N.B., 204 So.3d 887, 893 (Ala. Civ. App. 2016) (authorizing a juvenile court's transfer of a case that " 'should have been brought in another court in the same county' to the appropriate court, i.e., the circuit court" pursuant to § 12-11-11, Ala. Code 1975 (citing Ex parte E.S., 205 So.3d 1245 (Ala. 2015) )).

Finally, the father argues that the juvenile court was plainly and palpably wrong in denying his petition to modify custody. We note that the judgment was entered following trial proceedings at which evidence was presented ore tenus to the juvenile court.

" ' "A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong...." ' Ex parte Perkins, 646 So.2d 46, 47 (Ala. 1994), quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala. Civ. App. 1993) (citations omitted). This presumption is based on the trial court's unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. 'In child custody cases especially, the perception of an attentive trial judge is of great importance.' Williams v. Williams, 402 So.2d 1029, 1032 (Ala. Civ. App. 1981)."

Ex parte Fann, 810 So.2d 631, 633 (Ala. 2001). Because the mother previously had been granted sole physical custody of the child, the juvenile court was required to apply the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984).

"The law is well settled that '[a] parent seeking to modify a custody judgment awarding primary physical custody to the other parent must meet the standard for modification of custody set forth in Ex parte McLendon [, 455 So.2d 863 (Ala. 1984) ].' Adams v. Adams, 21 So.3d 1247, 1252 (Ala. Civ. App. 2009). The custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984), requires that
" 'the noncustodial parent seeking a change of custody must demonstrate (1) "that he or she is a fit custodian"; (2) "that material changes which affect the child's welfare have occurred"; and (3) "that the positive good brought about by the change in custody will more than offset the disruptive effect of uprooting the child." Kunkel v. Kunkel, 547 So.2d 555, 560 (Ala. Civ. App. 1989) (citing, among other cases, Ex parteMcLendon, 455 So.2d 863, 865-66 (Ala. 1984) (setting forth three factors a noncustodial parent must demonstrate in order to modify custody)).'
" McCormick v. Ethridge, 15 So.3d 524, 527 (Ala. Civ. App. 2008). It is not sufficient for a noncustodial parent seeking a modification of custody to show that he or she is a fit custodian. Id. The noncustodial parent must prove all three McLendon factors in order to warrant a modification of custody. Id."

Walker v. Lanier, 180 So.3d 39, 42 (Ala. Civ. App. 2015).

The juvenile court specifically found that there had been no material change in circumstances and that the "extreme antagonistic behaviors presented by each parent toward the other" had existed since the child's birth. The juvenile court went on to find that, even if there had been a change in circumstances, there had been no "evidence presented that a change of custody would benefit the child in any way whatsoever." The father points to the mother's allegations of sexual abuse as amounting to parental alienation and abuse. The record indicates, however, that those allegations began before the first custodial judgment was entered and continued throughout the remainder of the proceedings in the juvenile court and the trial court. Moreover, the juvenile court specifically found that the father had engaged in similar alienating behavior. As to any disputed evidence, "the trial court is free to choose which evidence it believes and is responsible for solving any conflicts." Cale v. Littleton, 631 So.2d 1036, 1038 (Ala. Civ. App. 1993). The juvenile court's judgment is supported by the evidence, and its findings are not plainly or palpably wrong. Accordingly, we affirm the judgment.

APPLICATION GRANTED; NO-OPINION ORDER OF AFFIRMANCE OF FEBRUARY 10, 2017, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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


author: THOMPSON, Presiding Judge.

text:
    Walter J. ALEXANDER, Jr. v. ESTATE OF George BETHEA
    2160194
    Court of Civil Appeals of Alabama.
    June 9, 2017
    Stephen H. Last, Legal Services Alabama, Montgomery, for appellant.
    Submitted on appellant's brief only.
   THOMPSON, Presiding Judge.

Walter J. Alexander appeals from a judgment of the Montgomery Circuit Court ("the circuit court") dismissing Alexander's attempt to appeal a judgment of the Montgomery District Court ("the district court").

The record reveals the following information relevant to this appeal. On September 15, 2016, the district court entered a judgment ordering Alexander to pay $6,949.59 plus costs to the Estate of George Bethea ("the estate"). The judgment noted that the parties had 14 days in which to appeal. On September 28, 2016, Alexander filed in the district court a timely notice of appeal and an affidavit of substantial hardship. That same day, the district court entered an order stating that the "affidavit of substantial hardship and order for appeal filed by Alexander ... is hereby denied."

On September 29, 2016, Alexander filed in the circuit court a "motion to reconsider" the district court's denial of his "affidavit of substantial hardship." Alexander attached the affidavit to the motion and asked the circuit court to grant the "affidavit" and waive the filing fee. On September 30, 2016, the estate filed a "motion to quash [Alexander's] motion for reconsideration." In addition to debating Alexander's financial need for a waiver of the filing fee, the estate also argued that the circuit court lacked jurisdiction over the matter because, it said, Alexander had failed to perfect his appeal within 14 days of the entry of the district court's September 15, 2016, judgment. The basis for the estate's assertion was that Alexander's application for a waiver of the filing fee had been denied and Alexander had not paid the filing fee within 14 days of the entry of the judgment. Therefore, the estate said, Alexander's appeal to the circuit court was due to be dismissed.

On October 14, 2016, the circuit court entered an order denying the "affidavit." However, the order also stated that "[t]he circuit court filing fee is hereby waived." That same day, the circuit court entered the following order:

"This matter having come before the court on [the estate's] motion to quash [Alexander's] application for waiver of filing fees and [the estate's] motion to dismiss the appeal with remand to the district court and having considered the same finds that the motions are due to be granted. It is ordered that [Alexander's] application is quashed and this case is hereby dismissed and remanded to the district court."

On October 17, 2016, Alexander filed a motion to vacate the circuit court's judgment dismissing his appeal. That motion was deemed denied by operation of law on January 17, 2017. Alexander filed a timely notice of appeal to this court on January 24, 2017. The estate did not favor this court with a brief on appeal.

On appeal, Alexander contends that the circuit court erred in dismissing his appeal. We agree. In fact, the estate's argument to the circuit court that the appeal was due to be dismissed based on Alexander's failure to pay the filing fee within 14 days of the entry of the district court's judgment has been rejected by this state's appellate courts.

In Finch v. Finch, 468 So.2d 151 (Ala. 1985), our supreme court held that payment of the filing fee within the time allowed for an appeal is not a jurisdictional requirement for perfecting an appeal. In De-Gas, Inc. v. Midland Resources, 470 So.2d 1218, 1220 (Ala. 1985), our supreme court discussed the law requiring that a filing fee be paid at the time an original complaint is filed in the district or the circuit court and distinguished that law from opinions holding that the payment of the filing fee is not a jurisdictional requirement for perfecting an appeal.

"Observing, among other things, that the limitations period allows for a defendant to be judicially notified of an action being filed against them, our supreme court concluded in De-Gas [, Inc. v. Midland Resources, 470 So.2d 1218 (Ala. 1985),] that the payment of the filing fee or the filing of a court-approved verified statement of substantial hardship is a jurisdictional prerequisite to the commencement of an action for statute-of-limitations purposes. Id. at 1222. The supreme court distinguished its holding in De-Gas, however, from Finch v. Finch, 468 So.2d 151 (Ala. 1985), in which our supreme court held that the payment of the filing fee within the time allowed for an appeal is not a jurisdictional requirement for perfecting an appeal, because the nonappealing party is already aware of the existence of the action in which the appeal is involved and because there is no provision requiring the payment of the filing fee at the time the appeal is filed. 470 So.2d at 1222."

Ex parte Alabama Dep't of Labor, 202 So.3d 329, 331 (Ala. Civ. App. 2016). Furthermore, in the context of appeals to the circuit court from decisions of administrative agencies,

"this court has held that the timely filing of a notice of appeal with the circuit court clerk pursuant to section 25-4-95[, Ala. Code 1975,] invokes the jurisdiction of the circuit court. Crawley v. Carter, 378 So.2d 1139 (Ala. Civ. App. 1979). The failure to pay the filing fees initially or to obtain a waiver of such filing fee from the court may warrant sanctions, including dismissal of the appeal, at a later time. But when the notice of appeal is timely filed, the circuit court has jurisdiction of the appeal."

Rubin v. Department of Indus. Relations, 469 So.2d 657, 658 (Ala. Civ. App. 1985).

Our research has revealed no legal support for the circuit court's decision to dismiss Alexander's appeal on the ground that Alexander had not filed a filing fee within 14 days of the entry of the district court's judgment. Based on the authorities cited above, we conclude that the circuit court erred in dismissing Alexander's appeal. Accordingly, the circuit court's judgment is reversed, and the cause is remanded to that court for further proceedings.

We note that in its two orders of October 14, 2016, the circuit court entered conflicting instructions. In one order, the circuit court waived the filing fee. In the other order, the circuit court quashed Alexander's application for a waiver of the filing fee. On remand, the circuit court is directed to enter an order clarifying its decision as to whether the filing fee is, in fact, waived.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.

      Rule 59.1, Ala. R. Civ. P., provides that a postjudgment motion that is not ruled on by the court within 90 days is deemed denied at the expiration of the 90-day period. The 90th day after Alexander's filing of his postjudgment motion on October 17, 2016, was Sunday, January 15, 2017. Monday, January 16, 2017, was a state holiday. Therefore, Alexander's postjudgment motion was deemed denied on Tuesday, January 17, 2017. See Rule 6(a), Ala. R. Civ. P., First Alabama State Bank v. McGowan, 758 So.2d 1116 (Ala. Civ. App. 2000), and Richburg v. Cromwell, 428 So.2d 621 (Ala. 1983) ; see also Williamson v. Fourth Ave. Supermarket, Inc., 12 So.3d 1200, 1203-04 (Ala. 2009).


author: WELCH, Judge.

text:
    Eric PAYNE v. STATE of Alabama
    CR-15-0225
    Court of Criminal Appeals of Alabama.
    February 10, 2017 Rehearing Denied April 21, 2017 Certiorari Denied June 9, 2017
    Alabama Supreme Court 1160663
    Gregory Carl Morgan, Talladega; and George Nelson Sims, Jr., Talladega, for appellant.
    Luther Strange, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   WELCH, Judge.

The appellant, Eric Payne, was indicted for the intentional murder of his eight-month-old daughter, J.P., an offense defined as capital by § 13A-5-40(a)(15), Ala. Code 1975. He was convicted of the lesser-included offense of intentional murder, a violation of § 13A-6-2, Ala. Code 1975, and was sentenced to life imprisonment.

The State's evidence tended to show the following. At around 4:30 p.m. on June 11, 2013, paramedics were dispatched to Eric Payne's apartment off Old Shocco Road in Talladega in response to a 911-emergency telephone call. David White, a paramedic with NorthStar Emergency Services, testified that when he and fellow paramedic Ken Jones arrived at the apartment two police officers were performing CPR on a small child, J.P., in the living-room area of the apartment. One officer handed J.P. to him. J.P., he said, was in cardiac arrest, was not breathing, and had no pulse. White testified that Payne told him at the scene that J.P. had fallen off a bed earlier that day, that Payne had given J.P. Motrin brand pain reliever, and that J.P. then stopped breathing. White testified that CPR was performed on J.P. until the ambulance arrived at Citizens Hospital. J.P. was then transported via a helicopter to the Children's Hospital in Birmingham and was later pronounced dead. The coroner testified that J.P. died of blunt-force trauma to her head and neck, that she had a skull fracture, that she had multilayered retinal hemorrhages, and that she had injuries to her ribs.

Debbie Hurst testified that she lived in an apartment next to Payne and Payne's girlfriend, Kyeandrea Barclay, and that they all became friends. Early on the morning of June 11, 2013, at around 9:00 a.m., Payne and Hurst's boyfriend, Terry Spratlin, and Darnell Huddleston, Hurst's former sister-in-law, came to her apartment. Hurst said that they talked and smoked marijuana. Several times during the day, Hurst said, she asked Payne where J.P. was and Payne told her that she was in his apartment asleep. She also asked Payne to check on J.P., Hurst said, and Payne left her apartment and came back about five minutes later and said that J.P. was asleep. Hurst testified that Payne was acting strange that day. At around 3:45 p.m., Hurst said, Payne said that he had to get ready for work, and he went back to his apartment. He came back shortly thereafter, she said, and told her that "something was wrong with his baby." (R. 177.) Hurst testified that she and Spratlin went to Payne's apartment. She testified:

"J.P. was laying on the couch, and her head was swollen, and her eyes [were] like protruded out of her head. I lifted her eyelid because I worked for an ophthalmologist. She was not breathing. She had no air in or out. I could not find a pulse, and I told them to call 911."

(R. 177.) She talked to the 911 operator, Hurst said, and put the baby on the floor and tried to perform CPR. Hurst further testified that she saw J.P. the day before and that J.P. had been happy and laughing that day.

Vickie Walker, an emergency-room nurse at Citizens Hospital, testified that she was working on the afternoon that J.P. was brought into the emergency room and that she took J.P. to the critical-care unit. She said that J.P. was lifeless, that she had no pulse, that she had no respirations, and that she was showing no signs of life. (R. 212.) Walker testified that hospital personnel tried to shock J.P.'s heart "but we were unable to get a heart rate back at that initial shock. And we continued CPR again to try to circulate the blood through the body. Shocked again, and finally that baby got a little pulse, and we began to work with that." (R. 214.) J.P. was then transferred to Birmingham. Walker testified that she spoke to Payne about what happened and he told her that "the baby was lying on his lap and fell on the floor and hit her head" and that Payne had given J.P. ibuprofen. (R. 215.)

The State presented the testimony of five physicians who had treated or performed the autopsy on J.P. All testified that J.P.'s injuries were not consistent with falling from a bed because, they said, the injuries were too severe.

In his defense, Payne presented the testimony of Dr. Peter Stephens, a doctor certified in anatomic pathology, clinical pathology, and forensic pathology. Dr. Stephens testified that J.P. died as a result of falling off a bed and that her injuries were consistent with a vitamin D deficiency. (R. 619.)

Eric Payne testified in his own defense. He said that he arrived at his apartment from work at around 5:00 a.m. on the morning of June 11, 2013, and that J.P. was restless and that he tried to calm her down. He said that he fell asleep in his bed with J.P. on his chest and that when he woke J.P. was on the floor crying. Payne said that he did not notice that J.P. had any injuries and that he gave her some ibuprofen. He said that, when she started to fall asleep, he put her in her playpen and started doing "little things around the house." (R. 692.) A little while later he heard his neighbor's nephew, Britton, pull up outside because the music in his car was loud.

"I went out there with Britton, and we were talking about music, and I don't know how much time had passed because I was not looking at the clock; neither do I have a clock in my house. So some time had passed by before Britton had asked me-he was like, 'Hey, man, where is the baby?' I said, 'Hold on, let me go check on her,' proceeded in to check on her as I always do, and I went in. I just rubbed her on the back, and she moved a little bit like she normally do, and I went back outside, I said, 'Man, she asleep.' "

(R. 693.) He talked some more with Britton, Payne said, and then went back to check on J.P. a second time.

"Okay. After the second time when I checked on [J.P.], then we were all talking, and we eventually ended up walking into Deb's [Hurst's] house following the conversation. I left my door open, as I always do just in case [J.P.] starts crying, I can come back home and check on her. Because me and Deb's house is so close together, it is kind of no need for a baby monitor because I can be my own baby monitor because I can hear just fine and I can hear when my baby wakes up. So I left the door open, and I left Deb's door open, and Deb fed me hot dogs."

(R. 696.) Payne said that he went back to his apartment at around 4:00 p.m. and found that J.P. was unresponsive and was limp. He tried CPR and then went to Hurst's apartment for help. Hurst came over, he said, and he telephoned 911.

Payne raises only one issue on appeal to this Court. He argues that the circuit court erred in allowing five physicians to testify concerning the cause of J.P.'s injuries and that the circuit court erred in not applying the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), standard of admissibility to the five physicians' testimony. In essence, Payne challenges the reliability of that testimony and not its relevance.

The record reflects that Payne moved in limine that the State be "barred from entering any evidence, or eliciting any testimony from physicians or other witnesses, regarding the scientific probability of certain injuries sustained by the alleged victim...." (C. 103.) The circuit court considered and denied the motion after each doctor was questioned by defense counsel on voir dire. (R. 368, 411, 447, 490, and 519.)

In Alabama, the admission of expert testimony is governed by Rule 702, Ala. R. Evid. Effective January 1, 2012, the Alabama Supreme Court amended Rule 702, Ala. R. Evid., to mirror the comparable Federal Rule of Evidence. 1 Rule 702, Ala. R. Evid., now reads:

"(a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
"(b) In addition to the requirements in section (a), expert testimony based on a scientific theory, principle, methodology, or procedure is admissible only if:
"(1) The testimony is based on sufficient facts or data;
"(2) The testimony is the product of reliable principles and methods; and
"(3) The witness has applied the principles and methods reliably to the facts of the case."

Section 12-21-160, Ala. Code 1975, also provides:

"(a) Generally. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
"(b) Scientific evidence. In addition to requirements set forth in subsection (a), expert testimony based on a scientific theory, principle, methodology, or procedure is only admissible if:
"(1) The testimony is based on sufficient facts or data,
"(2) The testimony is the product of reliable principles and methods, and
"(3) The witness has applied the principles and methods reliably to the facts of the case."

The Alabama Court of Civil Appeals, in discussing the 2012 amendment to Rule 702, Ala. R. Evid., stated:

"The intent of the amendment was to provide additional criteria for a trial court to consider when an opposing party properly challenges the qualifications of a proposed expert witness by applying a process and procedure similar to the process and procedure established by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)."

Colbert Cty. Northwest Alabama Health Care Auth. v. RegionalCare Hosp. Partners, Inc., 195 So.3d 948, 960 (Ala. Civ. App. 2015). "The amendment requires trial judges to act as 'gatekeepers' and determine whether the scientific evidence is both 'relevant and reliable.' See Daubert [v. Merrell Dow Pharmaceuticals, Inc. ], 509 U.S. [579] at 597 [ (1993) ]." Advisory Committee's Notes to Amendment to Rule 702 Effective January 1, 2012.

"To assist courts in evaluating the reliability of expert testimony, Daubert [v. Merrell Dow Pharmaceuticals, Inc. ], 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),] set forth a non-exclusive list of factors. Daubert, 509 U.S. at 593, 113 S.Ct. 2786. The specific factors articulated by Daubert are: (1) whether the expert's theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether the technique or theory is generally accepted within the relevant scientific community; (4) the known or potential rate of error of the technique or theory when applied; and (5) the existence and maintenance of standards controlling application of the technique. Id. at 593-94, 113 S.Ct. 2786.
"No single Daubert factor is dispositive of the reliability of an expert's testimony, and not all of the Daubert factors will apply to 'all experts or in every case.' Kumho Tire [Co., Ltd. v. Carmichael ], 526 U.S. [137] at 141-42, 152 [ (1999) ] ; Fed. R. Evid. 702, advisory committee's notes, 2000 amendments; [State v.] Bernstein, 234 Ariz. [89] at 95, ¶ 12, 317 P.3d [630] at 636 [ (2014) ] ; see e.g., Tyus v. Urban Search Management, 102 F.3d 256, 263 (7th Cir. 1996) (stating that the Daubert factors did not precisely apply to the proffered sociologist's expert testimony). Moreover, courts since Daubert have identified other factors for judges to consider in determining reliability, including whether: (1) the expert's testimony is prepared solely in anticipation of litigation, or is based on independent research; (2) the expert's field of expertise/discipline is known to produce reliable results; (3) other courts have determined that the expert's methodology is reliable; and (4) non-judicial uses for the expert's methodology/science. Fed. R. Evid. 702, advisory committee's notes, 2000 amendments; Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167 ; Oddi v. Ford Motor Co., 234 F.3d 136, 156 (3rd Cir. 2000) ; Daubert [v. Merrell Dow Pharmaceuticals, Inc. ], 43 F.3d [1311] at 1317 [ (9th Cir. 1995) ]."

State ex rel. Montgomery v. Miller, 234 Ariz. 289, 299, 321 P.3d 454, 464 (2014).

However, "[t]he inquiry envisioned by Rule 702 is, we emphasize, a flexible one." Daubert, 509 U.S. at 594-95, 113 S.Ct. 2786. "In some cases, the relevant reliability concerns may focus upon personal knowledge or experience of the Daubert factors and scientific foundation. Kumho Tire [Co., Ltd. v. Carmichael ], 526 U.S. [137] at 150, 119 S.Ct. 1167, 143 L.Ed.2d 238 [ (1999) ]." Smart v. BNSF Ry., 52 Kan.App.2d 486, 495, 369 P.3d 966, 973-74 (2016).

As one court has stated:

"The United States Supreme Court has clarified the import of the Daubert factors, stating:
"The factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony. The conclusion, in our view, is that we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert, nor can we now do so for subsets of cases categorized by category of expert or by kind of evidence.
" Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238 (1999) (quotations and citation omitted)."

Ratliff v. Commonwealth, 194 S.W.3d 258, 270 (Ky. 2006) (emphasis added).

The Mississippi Court of Appeals in University of Mississippi Medical Center v. Peacock, 972 So.2d 619, 627 (Miss. Ct. App. 2006), addressed whether the circuit court had erred in admitting expert testimony when no data or articles had been cited to support the expert's opinion. The court stated:

"[University of Mississippi Medical Center] contends that no foundation of reliable data or methodology was established to support Dr. Sykes's opinion as he 'did not rely on or even cite any scientific journals or studies supporting the parameters he considered in making the diagnosis [and] never stated that he had any personal experience in treating patients with abdominal compartment syndrome. ' As previously noted, the Daubert[ v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),] reliability inquiry is 'flexible,' with the trial court having " 'considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.' " [ Mississippi Transp. Comm'n v.] McLemore, 863 So.2d [31] at 37 (¶ 13) [ (Miss. 2003) ] (quoting Daubert, 509 U.S. at 594, 113 S.Ct. 2786 ; Kumho Tire [Co., Ltd. v. Carmichael ], 526 U.S. [137] at 152, 119 S.Ct. 1167 [ (1999) ], respectively)."

972 So.2d at 627.

"The [appellees] argue that [the doctor's] testimony is unreliable because '[e]xperience alone ... can never form the basis for expert testimony,' but this argument fails. Standards of scientific reliability, such as testability and peer review, do not apply to all forms of expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151, 119 S.Ct. 1167, 1175-76, 143 L.Ed.2d 238 (1999). For nonscientific expert testimony, 'the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.' Id. at 152, 119 S.Ct. at 1176. A district court may decide that nonscientific expert testimony is reliable based 'upon personal knowledge or experience.' Id. at 150, 119 S.Ct. at 1175."

American General Life Ins. Co. v. Schoenthal Family, LLC, 555 F.3d 1331, 1338 (11th Cir. 2009).

With these principles in mind, we review the experts and their testimony. The following experts testified:

Dr. Michelle Kong

Dr. Michelle Kong, a physician employed at the Children's Hospital in Birmingham, testified that she had been licensed as a physician since 2005, that she had completed three years of training and residency in pediatrics, that she had completed an additional three years of training in pediatrics critical care, that she is certified by the American Board of Pediatrics for both pediatrics and pediatrics critical care, that she became certified in pediatrics in 2008, that she became certified in pediatrics critical care in 2010, that she completed her pediatric-critical-care fellowship at the University of Alabama at Birmingham, that she has lectured and written papers in her speciality of pediatric critical care, that she has had experience in treating child victims of abuse, that she had treated thousands of children who had been admitted as the result of accidents, that she has treated numerous children, but less than 100, who had been victims of child abuse, and that she had treated numerous children who had skull fractures.

Before the circuit court accepted Dr. Kong as an expert, Dr. Kong was questioned outside the presence of the jury. She stated that she relied on various journals related to pediatric critical care and critical-care medicine. When questioned about specific articles and studies, she stated that there are thousands of journals and hundreds of studies relating to pediatrics critical care. Dr. Kong stated:

"[S]o the process in taking care of this child in thinking about what we need to rule out or rule in is based on experience in the field. What we typically see and our experience is based on our foundation of knowledge that is based on what we know that is in the literature."

(R. 365.) Dr. Kong said that it was a regular part of her practice to make determinations as to the cause of injuries of children. (R. 368.)

In accepting Dr. Kong as an expert, the circuit court stated:

"It is my job as the trial judge to make sure that the expert is an expert and that the testimony would be relevant and reliable as to the issues present in this case.
"An expert may be qualified on the basis of experience in certain fields. Experiences are [the] predominant basis for a great deal of reliable expert testimony. The Court finds that the expert-that the witness is an expert based upon her experience, which has led to her opinion.
"The Court has heard testimony concerning the expert's knowledge, skill, experience, training and education and finds that the witness is an expert. The subject matter of her testimony is within her field of practice. The expert has proven to have training and experience in dealing with the injuries to children similar to this child. The expert testified during the cause of-determining the cause of injury was part of her training or experience and a vital part of clinical medicine. The expert also testified that it was a regular part of her practice to make determinations as to the cause of injuries. The expert testified that her opinions were based on various tests, examinations, treatments given to the victim; that the expert indicated that she had referred to studies and literature in the field in reaching her conclusions. That the expert did consider other obvious causes of the victim's condition. The expert had firsthand knowledge of the victim's condition and that the testimony will assist the trier of fact in determining the relevant fact in the case, and the testimony is based on sufficient facts and reliable principles and methods, and she has reliably applied the same to the facts of this case.
"Based on the predicate laid by the district attorney in the case, and the questions asked by the defense counsel, the Court finds that the testimony of the witness is relevant and reliable and is admissible."

(R. 368-70.) Dr. Kong testified that it was her opinion that J.P.'s injuries-a retinal hemorrhage and extensive brain swelling-were not consistent with the history that she had been given and that J.P.'s injuries were more severe than what would have been caused by falling off a bed. Dr. Kong also testified that she asked an opthamologist to examine J.P.'s body to rule out any nonaccidental trauma.

Dr. Leslie Hayes

Dr. Leslie Hayes, a physician at Children's Hospital, testified that she took over J.P.'s care from Dr. Kong. Dr. Hayes testified that she obtained her medical license in 2001, that she specializes in critical-care pediatrics, that she has specialized in that field for 12 years, that she obtained her certification in pediatrics in 2003, that she obtained her certification in critical-care pediatrics in 2006, that she completed her residency in general pediatrics and general internal medicine, that she completed a three-year fellowship in critical-care pediatrics, and that she lectures and teaches in her field of expertise. Dr. Hayes was questioned on voir dire outside the presence of the jury. She testified that it was her regular practice in treating children to make a determination of the cause of the child's injuries. The circuit court found that her testimony was admissible for the same reasons it stated for Dr. Kong's testimony.

Dr. Hayes testified that when she first examined J.P. the child was brain dead. Dr. Hayes said that she performed various tests to determine the extent of brain activity and found that J.P. had extensive bleeding in and around the brain and that there was no brain activity. (R. 396.) Dr. Hayes testified that J.P.'s extensive injuries were not consistent with having fallen from a bed but were consistent with an unrestrained child having been ejected from a vehicle. (R. 414.)

Dr. Richard Martin

Dr. Richard Martin, a radiologist with Radiologist Associates, testified that he had been with Children's Hospital for 10 years, that he is licensed to practice medicine in Alabama and in Georgia, that after medical school he completed a five-year residency in general diagnostic radiology, that he completed an additional year of training in pediatric radiology at Emory in Atlanta, that he is board-certified in diagnostic radiology with an added qualification in pediatric radiology, that he is an assistant professor of radiology at the University of Alabama at Birmingham, that he lectures residents, that part of his five years of training in radiology concerned child abuse, that he is a member of the American College of Radiology, that in his career he had examined radiographs for approximately 200,000 children, and that he had examined numerous radiographs from children who were victims of child abuse. Dr. Martin was questioned outside the presence of the jury, and the following occurred during Dr. Martin's questioning by defense counsel:

"[Defense counsel]: And you stated that you reached a conclusion that [J.P.'s] injuries could not have been caused by the history that you received?
"[Dr. Martin]: I believe they were in excess of what would be generated from a fall from a bed.
"[Defense counsel]: Is that conclusion the product of reliable principles and methods?
"[Dr. Martin]: It is the product of my experience, my training, and what I have read in textbooks and articles over the years.
"[Defense counsel]: Can you tell me about the textbooks and articles?
"....
"[Dr. Martin]: Well, there's a Caffey's textbook, there's a-
"[Defense counsel]: Can you spell that?
"[Dr. Martin]: C-a-f-f-e-y. That's a book I have in my fellowship. I can't tell you a page number. Lane Donnelly has a review of pediatric radiology.
"[Defense counsel]: You said Donnelly?
"[Dr. Martin]: Lane Donnelly.
"[Defense counsel]: Is that a textbook also?
"[Dr. Martin]: It is.
"[Defense counsel]: Okay.
"[Dr. Martin]: I mean, there's a host of textbooks. There's a pediatric radiology book written by my mentor-in-training, Ed Burton.... I can't tell you a page number. It is a review in pediatric radiology.
"[Defense counsel]: Okay. If I were to look in these books, would I find information that says a fall from this height can cause this severity of fracture, but a fall from this height could not?
"[Dr. Martin]: I can give you some articles where if you want to see them ... but where a test dummy was rolled off a 27-inch bed and the force was not sufficient to cause a significant brain injury.
"I can get you another paper that says in-home falls less than six feet rarely cause injury. When they do, it is typically a small swelling. One to three percent of those may cause a small linear fracture ; and less than one percent of that one third percent can cause a hemorrhage, typically epidural, which in this case it wasn't; less likely subdural. When it is subdural it is confined to the small area of injury, not usually to the brain. I can show you a study where over ten years kids in an urban environment that fell from three stories or less all survived."

(R. 443-44.) The circuit court found that Dr. Martin was an expert in radiology and that his testimony was relevant and reliable. Dr. Martin testified that it was his opinion that the injuries that J.P. suffered were not consistent with having fallen off of a bed but were the result of severe trauma. (R. 449.)

Dr. Martin Cogen

Dr. Martin Cogen, the chief of pediatric ophthalmology at the Children's Hospital, testified that he had been at Children's Hospital for 11 years, that he had been practicing medicine for 26 years, that he is licensed in Alabama and in Georgia, that he graduated from medical school in 1983, that he completed a one-year internship in general internal medicine, that he completed a one-year internship in emergency medicine, that he completed a three-year ophthalmology residency at the Callahan Eye Foundation Hospital at the University of Alabama at Birmingham, and that he completed a one-year fellowship in pediatric ophthalmology. Dr. Cogen was questioned concerning his basis of knowledge, and the following occurred:

"[Defense counsel]: What medical literature that you may be relying on when making-when stating that opinion?
"[Dr. Cogen]: So there's a review article in pediatrics. If you would like I can quote the exact chapter and verse.
"[Defense counsel]: If you will just state the name of the study, name, and author and year.
"[Dr. Cogen]: So there are several references. There's one review article entitled, 'Retinal Hemorrhage and Abusive Head Trauma,' published by Alex Levin. That's in the Journal of Pediatrics.
"[Defense counsel]: What year is that?
"[Dr. Cogen]: 2010.
"[Defense counsel]: There's another article, which I think I gave you a copy of called 'Ophthalmic Findings in Suspected Child Abuse Victims.' That's published in the Journal of the American Academy of Ophthalmology, 2013. Do you know the author of that one?
"[Dr. Cogen]: The lead author has a hyphenated last name. It's Pierre, P-i-e-r-r-e, K-a-h-n, et al. And both of these list numerous references and they actually make reference to the difficulty in animal and experimental models to try to mimic the exact physical characteristics of a baby's eye.
"So I guess to try to answer your question as best I can, I'm aware of articles and studies that have been published dealing with the experimental nature of the forces required to cause retinal hemorrhages and vitreous base avulsion and retinal schisis and retinal folds, but I can't quote you the individual chapters and verses of those experiments, but they do exist.
"....
"[Defense counsel]: Did you base any part of your conclusion on Levin's study from 2012?
"....
"[Dr. Cogen]: The fact that the vitreous base avulsion in this particular case or any other case would be virtually pathognomonic of a quote, 'shaking' type of injury, yes."

(R. 488-90.) The circuit court, in allowing Dr. Cogen's testimony, stated:

"The subject matter of his testimony is within the doctor's field of practice. The expert has proven to have training and experience in dealing with eye injuries to children. The expert testified that his opinion was based upon test, examinations, and treatments, given to the victim. The expert indicated that he had referred to studies and literature in the field in reaching a conclusion. The expert did consider other obvious causes of the victim's condition. The expert had firsthand knowledge of the victim's condition. The testimony itself will assist the trier of fact in determining a relevant factor in the case. The Court finds that the testimony of the witness is relevant and reliable and is admissible."

(R. 490.) It was Dr. Cogen's opinion that the amount of damage to J.P.'s retinas and her multilayered retinal hemorrhaging were not consistent with a three-foot fall but were consistent with "shaken baby" or some type of violent back and forth movement.

Dr. Steven Dunton

Dr. Steven Dunton, senior medical examiner with the Montgomery office of the Department of Forensic Sciences, testified that he has been licensed to practice medicine since 1982, that he received his medical degree from the University of Texas, that he completed a three-year pediatrics residency at the University of Oklahoma, that he completed one year of speciality training in pediatrics at Emory University, that he completed a four-year residency in anatomic and forensic pathology, and that he is board-certified in forensic pathology, anatomic pathology, and pediatrics. Dr. Dunton was questioned by Payne outside the presence of the jury and the following occurred:

"[Defense counsel]: Do you base that conclusion on specific studies that support-studies that have been done regarding infants or children falling from varying heights?
"[Dr. Dunton]: Variety of literature over the years, both in journals, textbooks, and in the course of 25 years experience as a forensic pathologist and forensic pediatric.
"[Defense counsel]: Can you tall me today the names of any of those studies or literature or publications?
"[Dr. Dunton]: Off the top of my head, let's see, Greg Rieber, R-i-e-b-e-r, had a nice study concerning short distance falls....
"There have been studies concerning falls downstairs. David Chadwick out of San Diego writes quite a bit about head trauma and children and associated findings. If you looked at the indices in the American Journal of Forensic pathology and Medicine, over the years there have been quite a few articles concerning these questions.
"Same thing for the Journal of Forensic Sciences. The new E-journal we have, through our National Association of Medical Examiners, academic forensic pathology has some entries. They are in the hundreds, if not the thousands."

(R. 516-17.) The circuit court accepted Dr. Dunton as an expert.

Dr. Dunton testified that he performed an autopsy on J.P. and that J.P. had blunt force trauma injuries to her head and bruising on both sides of her head, that she had a skull fracture, that she had bilateral, multilayered, and diffused retinal hemorrhages, that she had injuries to her ribs, and that it was his opinion that J.P. died of blunt-force trauma to her neck and head. It was his opinion, Dr. Dunton said, that the injuries to J.P.'s ribs were not typical of accidental falls but were something that showed up in child-abuse cases and that the injuries J.P. suffered were not the result of falling off of a bed.

The Kentucky Supreme Court addressed the admissibility of expert testimony under Rule 702, Kentucky Rules of Evidence, a rule virtually identical to Rule 702, Ala. R. Evid. In Futrell v. Commonwealth, 471 S.W.3d 258, 282-83 (Ky. 2015), the Kentucky Supreme Court stated:

"In our courts, the admissibility of expert testimony is governed by Kentucky Rule of Evidence (KRE) 702. That rule provides as follows:
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if
"(1) the testimony is based upon sufficient facts or data,
"(2) the testimony is the product of reliable principles and methods, and
"(3) the witness has applied the principles and methods reliably to the facts of the case.
"Our rule is identical to its federal counterpart, Rule 702 of the Federal Rules of Evidence. Both rules incorporate guidance provided by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Under Daubert, a trial court's task in assessing proffered expert testimony is to determine whether the testimony 'both rests on a reliable foundation and is relevant to the task at hand.' Daubert, 509 U.S. at 597, 113 S.Ct. 2786. In making its reliability determination, the trial court must consider " 'whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue.' " Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 39 (Ky. 2004) (quoting Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786 ). As the United States Court of Appeals for the Sixth Circuit has noted, ' Daubert attempts to strike a balance between a liberal admissibility standard for relevant evidence on the one hand and the need to exclude misleading "junk science" on the other.' Best v. Lowe's Home Ctrs., Inc., 563 F.3d 171, 176-77 (6th Cir. 2009). The court's role is not to judge the correctness of the expert's conclusions; that assessment is for the jury. The court's gatekeeping role, rather, is to 'focus ... solely on [the] principles and methodology' employed to generate the conclusions, and to ensure that those principles and methods are reliable. Daubert, 509 U.S. at 595, 113 S.Ct. 2786.
"There is no 'definitive checklist or test' for determining reliability, but in Daubert the Court recognized a number of factors bearing on the inquiry. These include whether the principle, theory, or method in question 'can be (and has been) tested,' whether it 'has been subjected to peer review and publication,' whether it has a 'known or potential rate of error,' and whether it enjoys acceptance within 'a relevant scientific community.' 509 U.S. at 593-94, 113 S.Ct. 2786. Appellants contend that all of these ' Daubert factors' weigh against the admissibility of Dr. [Melissa] Currie's inflicted-injury testimony, and that the trial court therefore abused its discretion by allowing that testimony to be introduced. Appellants, however, have failed to appreciate the basis of Dr. Currie's opinion.
"To begin, Daubert concerned scientific expertise, but the Court subsequently explained that Rule 702 applies to other types of expertise as well and that '[t]he factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony.' Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Citing Kumho Tire, this Court has upheld the admission of a forensic pediatrician's opinion to the effect that burns on a child had been inflicted. The opinion was adequately supported, we held, by case reports documenting burns inflicted by means of cigarette lighters and by the doctor's own experience with patients who had suffered such burns. 'The cause of an injury may be within the ambit of an expert witness's specialized knowledge,' we held, 'and is properly admissible subject to the trial judge's KRE 702 determination.' Ratliff v. Commonwealth, 194 S.W.3d 258, 270 (Ky. 2006). At the Daubert hearing in this case, Dr. Currie testified that her opinion was in part based on her familiarity with a voluminous body of case reports concerning injuries like those suffered by the child in this case and on her experience as a consultant in more than 3000 cases of potential child abuse, in most of which she had herself examined the child."

471 S.W.3d at 282-83.

Whether a witness is qualified to testify as an expert is a question within the sound discretion of the trial court. See Lockhart v. State, 163 So.3d 1088, 1156 (Ala. Crim. App. 2013). As detailed above, the five physicians all testified extensively concerning their qualifications and experience and their basis of knowledge for their opinions. It is clear that the circuit court fully complied with the requirements of newly amended Rule 702, Ala. R. Evid., and properly determined that the experts's testimonies were reliable. The circuit court did not abuse its discretion in allowing the five physicians to state their expert opinions concerning whether J.P.'s extensive injuries were the result of a fall from a bed.

For the foregoing reasons, we affirm Payne's conviction for murder and his sentence of life imprisonment.

AFFIRMED.

Windom, P.J., and Kellum, Burke, and Joiner, JJ., concur.

      Some courts have held that: "A differential diagnosis is deemed reliable for Daubert purposes if it is rendered after the physician conducts a physical examination, takes a medical history, reviews clinical tests, including laboratory tests, and excludes obvious (but not all) alternative causes." State v. McMullen, 900 A.2d 103, 116 (D.N.J. 2006). Alabama has not recognized this "clinical exception" to the Daubert requirements.


author: PER CURIAM.

text:
    Bobby Allen RALEIGH, Appellant, v. STATE of Florida, Appellee.
    No. SC17-1693
    Supreme Court of Florida.
    [February 28, 2018]
    Martin J. McClain of McClain & McDermott, P.A., Wilton Manors, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

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

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

After reviewing Raleigh's response to the order to show cause, as well as the State's arguments in reply, we conclude that Raleigh is not entitled to relief. Raleigh was sentenced to death on two counts of first-degree murder following a jury's unanimous recommendation for death on both counts. Raleigh v. State , 705 So.2d 1324, 1326 (Fla. 1997). Raleigh's sentences of death became final in 1998. Raleigh v. Florida , 525 U.S. 841, 119 S.Ct. 105, 142 L.Ed.2d 84 (1998). Thus, Hurst does not apply retroactively to Raleigh's sentences of death. See Hitchcock , 226 So.3d at 217. Accordingly, we affirm the denial of Raleigh's motion.

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

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

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

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J., concurring in result.

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


text:
    Steven SERRANO, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2503
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Angelica Casini BELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3519
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Stephen Parker BLACKWELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3523
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.