author: THOMPSON, Presiding Judge.

text:
    Donald P. WILLIAMS v. LIMESTONE COUNTY WATER AND SEWER AUTHORITY et al.
    2150310
    Court of Civil Appeals of Alabama.
    Sept. 16, 2016
    Certiorari Denied November 16, 2016 Alabama Supreme Court 1151349.

      Rodney B. Slusher, Florence, for appellant.
    Wm. Dudley Motlow, Jr., of Porterfield, Harper, Mills, Motlow & Ireland, P.A., Birmingham, for appellee Limestone County Water & Sewer Authority.
    Daniel J. Newton of Gaines, Gault, Hendrix, P.C., Birmingham, for appellee Danny McCafferty.
   On Application for Rehearing

THOMPSON, Presiding Judge.

The opinion of June 17, 2016, is withdrawn, and the following is substituted therefor.

Donald P. Williams appeals from a summary judgment entered by the Lauderdale Circuit Court (“the trial court") in favor of the Limestone County Water and Sewer Authority (“LCWSA”), Danny McCafferty, and the other remaining defendants named in Williams’s complaint. The gravamen of Williams’s complaint was, that LCWSA and McCafferty had worked together to “steal” water from Williams for McCafferty’s benefit. .

The evidentiary submissions of the parties in support of and in opposition to LCWSA’s motion for a dismissal or, in the alternative, for a summary judgment indicate the following. McCafferty owns property in Rogersville across the street from Williams’s lake house. Williams purchased the lake house and surrounding property from McCafferty in 1995. The water meter that served both McCafferty’s property and Williams’s property was on the property McCafferty had retained. LCWSA records indicate that on June- 19, 1995, McCafferty’s service provided through that meter was disconnected. On October 23, 1995, Williams completed an application requesting water service from LCWSA, and service was begun in late 1995.

On April 19, 2002, Williams inquired about moving, the water meter that served his property from McCafferty’s property across the street to Williams’s property. According to the affidavit of Tammy Smith, the customer-service manager for LCWSA, Williams was given a quote for the cost of parts and labor to move the meter. Smith, who has worked for LCWSA since May 1994, said that on April 29, 2002, a service representative went to Williams’s house to see whether Williams wanted to move the water meter to his side of the road. After receiving the price quote, however, Williams did not pursue the matter.

Smith testified in her affidavit that, in late February or early March 2008, Williams’s service was disconnected because he had not paid his water bill. Smith stated that, in reviewing Williams’s water usage from late 1995, when Williams’s service began, until it was disconnected in 2008, “the usage was relatively constant indicating that the meter, even though on the opposite side of the road, was serving only Mr. Williams’s residence.”

On December 16, 2009, Williams, acting pro se, filed a civil action in the trial court against LCWSA and McCafferty (“the 2009 action”). The allegations in the complaint in the 2009 action are not dear, but Williams complained about the water meter that served his house being located across the street from his house. He alleged that he had learned from members of an LCWSA work crew that McCafferty was “stealing” his water and that Williams was being billed for it. Williams also appeared to complain that LCWSA had done work on water lines that caused his plumbing to rupture. On February 17, 2011, the trial court dismissed the 2009 action for lack of prosecution.

Byron F. Cook, the general manager of LCWSA, testified by affidavit that he spoke to Williams in late 2010 when Williams came to the office of LCWSA to complain about the location of the'water meter and his service. In his' affidavit, Cook stated that, in an effort to resolve Williams’s complaints, he and another LCWSA employee visited Williams’s property to inspect the meter. Cook said that on January 27, 2011, LCWSA installed a new meter on Williams’s property and connected that meter to Williams’s water line at no charge to Williams.

On March 10, 2011,. Williams sent the trial court a letter in which he' sought to have the 2009 action reinstated. The trial court treated the letter as ■ a motion to reinstate. Williams attempted to file an amended complaint in the 2009 action on March 15, 2011, in which he again asserted that he was being billed for water that McCafferty was using. The trial court denied Williams’s request to reinstate the 2009 action on April 1,2011.

Records indicate that the readings from the meter that served Williams’s property had remained the same from March 4, 2008, to and including September 8, 2015, the date of Smith’s affidavit. In her affidavit, Smith stated that a review of the readings on the meter installed in January 2011 have been relatively consistent and did not demonstrate any evidence of excessive usage. Smith said that the meter readings indicated to her that only Williams was using the water for which he was being billed. Cook echoed Smith’s testimony, saying that there was no evidence that Williams had ever been billed for anyone else’s use of water. He 'also said that LCWSA had “no knowledge of anyone else being tied into Mr. Williams’s water lines on his side of the water meter.”

On March 13, 2015, Williams, appearing pro se, initiated another civil action (“the 2015 action”) against LCWSA, “McCafferty/A-1 Title Loan et al/Oakfair Subdivision Association,” Helen Tatum, NuSouth Concrete of Pulaski, Tennessee, Rackley Security of Pulaski, Tennessee, and “Others AZ.” In the style of the complaint in the 2015 action, Williams instructs the reader to see the complaint filed in the 2009 action. In the 2015 complaint, Williams again alleged that McCafferty was “stealing” his water. He also alleged that, in 2013, the named defendants had conspired to steal his water, to destroy his boat dock, and to commit assault with weapons and had threatened to file criminal charges against him for disconnecting his water supply from the Oakfair subdivision “nonresidential chop shop.” As he did in the 2009 action, Williams also complained about “ruptured plumbing.” We note that it is difficult to discern the wrongful conduct alleged in the 2015 complaint or the specific legal claims Williams asserted. For example, the complaint contains a claim against several of the defendants for “taxation without representation.”

On April 20, 2015, McCafferty filed a motion to dismiss and for a more definite statement. On April 22, 2015, LCWSA also filed a motion to dismiss on the ground that the claims Williams alleged against it had arisen from the same facts as those asserted in the 2009 action, which had been dismissed, and that the claims were barred by the applicable statutes of limitations. A hearing was scheduled for arguments on the motion, and the trial court gave Williams time to obtain an attorney. Williams hired an attorney, and that attorney was given time to become familiar with the case file. Once Williams’s attorney became involved, at Williams’s request, Tatum was dismissed as a defendant.

After hiring an attorney, Williams also filed an “amended and restated complaint” in which he continued to assert that LCWSA had deliberately withheld from him that he was paying for water provided to McCafferty and A-l Title Loan. Williams also alleged that LCWSA had “innocently, negligently, wantonly, or intentionally made misrepresentations of material fact” by billing him for water that McCafferty and A-l Title Loan were using. In the amended complaint, Williams asserted that he was not aware that, from 2011 through 2014, he was being billed for water McCafferty was using. Williams stated that an LCWSA employee had told him in July 2014 that he was paying for MeCafferty’s water usage. Williams further alleged that LCWSA, McCafferty, and A-l Title Loan acted intentionally, maliciously, oppressively, and wantonly by conspiring to conceal from him or suppress that he was receiving monthly bills for water being furnished to McCafferty and to A-l Title Loan.

Williams also asserted claims of conversion and trespass against LCWSA, alleging that it had' unlawfully diverted water from his property and provided it to McCafferty and A-l Title Loan. In a second amended complaint, filed September 3, 2015, Williams added that he was seeking damages from McCafferty for conversion because, Williams said, McCafferty had knowledge that water was being diverted from Williams’s property to his property and McCafferty had used that water without payment. In addition to the conversion count, Williams also asserted a civil claim for theft of property against LCWSA and McCafferty. Williams asserted that their conduct resulted in the diversion or unauthorized use of water, which, Williams said, is a Class C felony offense under § 13A-8-23, Ala. Code 1975.

Williams also continued to complain that water lines installed by LCWSA were bursting, causing damage to his house. In the amended complaint, Williams alleged that defendants NuSouth and Rackley had trespassed on his property and removed a sea wall and a boat launch. Williams also alleged claims of conversion against Nu-South and Rackley.

After the amended complaint was filed, LCWSA renewed its motion to dismiss and, in the alternative, sought a summary judgment. LCWSA attached exhibits to its motion. Williams responded to the motion and included his own exhibits to the response. McCafferty also filed a motion to dismiss the amended complaint; however, that motion was filed before Williams’s second amended complaint alleged a claim of conversion against McCafferty. The record does not contain motions to dismiss or for a summary judgment from NuSouth, Rackley, or A-l Title Loan.

On October 30, 2015, after a hearing on the matter, the trial court entered a judgment in which it stated that, based on LCWSA’s renewed motion for a dismissal or, in the alternative, for a summary judgment, which contained a narrative summary of undisputed facts and an evidentia-ry submission, it had converted LCWSA’s motion to one seeking a summary judgment.

In the judgment, the trial court set forth what it called the history of the case, including the allegations Williams had made in his 2009 complaint regarding McCafferty’s “stealing water” and LCWSA’s billing Williams for it and LCWSA’s performing work that led to ruptures in Williams’s pipes and plumbing.

The trial court denied Williams’s motion to strike Smith’s affidavit. The trial court also denied LCWSA’s motion to strike Williams’s affidavit in its entirety, although it did strike two paragraphs of that affidavit on the ground that Williams had “attempted] to create a question of fact based on inadmissible hearsay.” The trial court wrote:

“In these paragraphs, Williams contends he ‘discovered,’ alleged from statements made by unnamed LCWSA employees, theft of water and him ‘paying for Mr. McCafferty’s water’ only ‘in July 2014.’ Obviously, although hearsay, this contention is in conflict with, and directly contradicts, averments in [Williams’s] previous complaints and in his letter to this Court set forth above.”

The trial court then found that Williams’s claims were barred by the applicable statutes of limitations. The trial court stated that Williams has been making essentially the same claims since 2009. The judgment reads:

“[H]ad [Williams] properly pursued and prosecuted his 2009 Complaint, it is possible, although the record suggests highly improbable, that a claim or cause of action may have been fashioned which would have survived the statute of limitations. Despite the Court’s patience and tolerance, however, [Williams] failed and refused to properly prosecute the 2009 action, in which he avers nearly identical facts supporting his various and sundry claims.
“Likewise, to the extent [Williams] makes in his most recent Complaint claims for legal fraud, he cannot circumvent application of the statute of limitations by claiming that he could not have discovered the alleged water ‘diversion’ or ‘conversion’ until 2014. As the pleadings in this case and' [the 2009 action] confirm, [Williams] has repeatedly averred in previously filed Complaints, and represented to this Court, that he knew of the alleged diversion or conversion of water to' McCafferty and by McCafferty and LCWSA, even after the water meter was moved to his side of the road. Williams cannot successfully invoke the ‘savings clause’ extending the statute of limitations for legal fraud claims two years from a party’s ‘reasonable discovery’ of the fraud, by now making allegations that directly contradict allegations he made in at least two previously filed Complaints. Not only can Williams not successfully invoke the savings clause as to his fraud claims, he cannot create a genuine issue of material fact by he, himself, suddenly trying to dispute facts he previously averred.in Complaints and in a letter to the Court. The Court deems the previous factual averments and the representations to the Court in the letter (which was* treated as a Motion to Reinstate) to be admissions by Williams which cannot now be disavowed in order to invoke the fraud ‘savings clause.’ ”

The trial court concluded that there were no genuine issues of material fact and that a summary judgment was “to be entered as a matter of law in favor of LCWSA and'all remaining named Defendants in this action.” Williams filed a timely notice of appeal to our supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.. Code 1975.

An appellate court reviews a summary judgment' pursuant' to the following standard:

“[An appellate c]ourt’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie - showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to-the existence of a genuine'issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12.”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

In his appellate brief, Williams first contends that the trial court erred in entering a summary judgment in favor of LCWSA as to Williams’s claims of conversion and trespass. In .support of his argument, Williams sets forth the Code sections providing a six-year limitations period for conversion, § 6-2-34(3), Ala. Code 1975, and a six-year limitations period for trespass, § 6-2-34(2), Ala. Code 1975. He argues that, as stated in his first amended complaint and in the affidavit he submitted in opposition to LCWSA’s motion for a dismissal or a summary judgment, his claims of conversion and trespass are based on wrongs he alleges LCWSA committed between January 2011 through July 2014. Williams filed his complaints in this action in 2015. Therefore, he contends, the claims of conversion and trespass cannot be time-barred, and, he asserts, the trial court erred in entering the summary judgment in favor of LCWSA as to those claims.

Similarly, Williams argues that the trial court erred in entering the summary judgment in favor of LCWSA as to his claims of fraudulent misrepresentation and concealment on the ground that they, too, are barred by the applicable statutes of limitations. In its judgment, the trial court explained that, as to the fraud claim, Williams could not “circumvent” the applicable two-year statute of .limitations by alleging that he had not discovered the alleged water ‘“diversion”’ or “‘conversion’” until 2014. The trial court found that, based on his previous complaints and representations to the court, Williams had known of alleged diversion or conversion of water even., after the water meter was moved to his side of the road' in 2011. However, in his affidavit, Williams testified that he believed that the installation of the water meter at his house in 2011 “ended [his] problem of paying for Mr. McCafferty’s water until I ’discovered differently in July 2014.”

On its face, Williams’s contention that the claims of conversion and trespass are not time-barred appears to have some merit. His argument as to the claims of fraudulent misrepresentation and concealment is not as clear. However, because we conclude that the summary judgment is due to be affirmed as to those claims on a separate ground, we need not reach the merits of this issue. “‘[W]e can affirm a summary judgment on any valid legal ground presented by the record, whether that ground was considered by, or even if it was rejected by, the trial court, unless due-process constraints require otherwise.’ Wheeler v. George, 39 So.3d 1061, 1083 (Ala.2009).” Kruse v. Vanderbilt Minerals, LLC, 189 So.3d 42, 56 (Ala.2015).

In its evidentiary submission to the trial court in support of its motion for a dismissal or a summary judgment, LCWSA included records tending to show that Williams’s water usage was consistent from late 1995, when his service began, until it was disconnected in 2008. That usage was registered on the meter on McCafferty’s property. Records indicated that, after Williams’s service was disconnected, no water usage was detected by that meter. Smith also stated that, after the new meter was installed on Williams’s property in 2011, the meter once again showed relatively consistent usage and showed • no evidence of excessive usage. She testified that the meter readings indicated to her that Williams was being billed only for' water he was' using. Cook, LCWSA’s manager, also testified in his affidavit that there .was no evidence. indicating that Williams had been billed for .anyone else’s water usage and that LCWSA had no knowledge that anyone else was tied into Williams’s water line.

The only evidence Williams presented tending to rebut the testimony of Smith and Cook was a statement in his affidavit that an LCWSA employee had told him that the water to McCafferty’s “building across the road” was diverted through Williams’s meter. However, in its judgment, the trial court struck that statement as being inadmissible hearsay. On appeal, Williams does not challenge the propriety of the trial court’s decision to strike portions of his affidavit. Thus, any arguments Williams could have made as to that issue are deemed waived. Edosomwan v. A.B.C. Daycare & Kindergarten, Inc., 32 So.3d 591, 593 (Ala.Civ.App.2009) (citing Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003)) (stating that issues not raised and argued in brief are waived and affirming a summary judgment insofar as it related to claims about which the appellant had failed to raise an argument on appeal).

That the first meter through which Williams’s water usage was recorded did not indicate any usage of water at all after Williams’s service was disconnected indicates that no one other than Williams was using water tied to that meter. When Williams began service anew in 2011, Smith said, the water usage again remained constant, and the usage appears to have been consistent with the usage of water recorded by the first meter. Other than Williams’s speculation and conjecture, there is no evidence in the record from which one could reasonably determine that anyone other than Williams was using the water for which he was being billed.

“ ‘Mere conclusory allegations or speculation that fact issues exist will not defeat a properly supported summary judgment motion, and bare argument or conjecture does not satisfy the nonmov-ing party’s burden to offer facts to defeat the motion.’ Crowne Invs., Inc. v. Bryant, 638 So.2d 873, 878 (Ala.1994); see also Hurst v. Alabama Power Co., 675 So.2d 397, 400 (Ala.1996) (same); and Waddell v. Colbert Cnty.-Northwest Alabama Healthcare Auth., 97 So.3d 178, 184 (Ala.Civ.App.2012) (affirming a summary judgment when the nonmovant failed to present any evidence in opposition to the properly supported summary-judgment motion).”

Metcalf v. Pentagon Fed. Credit Union, 155 So.3d 256, 263 (Ala.Civ.App.2014).

Because in his opposition to the motion for a dismissal or a summary judgment Williams failed to submit substantial evidence tending to indicate that water was improperly diverted from him or that he was billed or paid for any water usage other than his own, his claims based on such alleged conduct cannot be sustained. Moreover, in his brief on appeal, Williams has made no argument or contention that a genuine issue of material fact exists as to his claims of conversion, trespass, fraud, or concealment against LCWSA. Any arguments Williams could have made regarding the existence of genuine issues of material fact as to those claims are waived. See Edosomwan v. A.B.C. Daycare & Kindergarten, Inc., 32 So.3d at 593.

Even if we were to determine on appeal that the claims of conversion, trespass, fraud, or concealment against LCWSA were not barred by the applicable statutes of limitations, the record indicates that LCWSA still would have been entitled to a summary judgment because Williams failed to demonstrate that a genuine issue of material fact existed or that LCWSA was not entitled to a judgment as a matter of law on those claims. Accordingly, we affirm the summary judgment in favor of LCWSA as to those claims.

Williams also contends that the trial court erred in entering a summary judgment in favor of LCWSA as to his claim of negligence. That claim is based on Williams’s assertion that LCWSA negligently installed, maintained, and operated the water lines and water system servicing his residence. He said that uneven water pressure in the system caused water pipes on his property to burst. Williams acknowledges that the negligence claim has a two-year statute of limitations, see § 6-2-38(1), Ala. Code 1975, but, he says, the last incident involving the bursting of a water line occurred in 2014, within the limitations period. As part of his negligence claim, Williams also alleged that LCWSA provided unsafe drinking water.

“Pursuant to Ala. R. Civ. P. 56(c), a summary judgment is proper ‘if the pleadings, depositions, answers to interrogatories, and admissions of file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ The burden of establishing that there is no genuine issue of material fact is on the movant. Berner v, Caldwell, 543 So.2d 686, 688 (Ala.1989). If the movant makes a prima facie showing of the absence of a genuine issue of material fact, then the burden shifts to the nonmovant to rebut the prima facie showing of the movant.”

Lucas v. Alfa Mut. Ins. Co., 622 So.2d 907, 908-09 (Ala.1993).

“The elements of a negligence claim are a duty, a breach of that duty, causation, and damage.” Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 679 (Ala.2001). In reviewing the evi-dentiary submission that LCWSA filed in support of its motion for a dismissal or a summary judgment, we find no evidence relevant to whether it breached a duty, if any, to Williams regarding the installation, maintenance, or operation of its water system or water lines or pipes. LCWSA also failed to address the negligence claim before the trial court or to discuss the propriety of the summary judgment entered as to that claim in its initial appellate brief. In its judgment, the trial court did not specifically address the negligence claim or provide any reason as to why a summary judgment in favor of LCWSA would be proper as to that claim.

Based on the record before us, we must conclude that LCWSA failed to meet its burden of demonstrating that no genuine issue of material fact exists or that it is entitled to a judgment as a matter of law regarding Williams’s • claim that LCWSA had negligently installed, maintained, or operated its water system, water lines, or pipes, resulting in burst lines or pipes on his property or negligently provided unsafe drinking water. See- Rule 56(c), Ala. R. Civ. P., and Armstrong Bus. Servs., Inc., supra. Thus, that portion of the summary judgment entered in favor of LCWSA as to the negligence claim is reversed.

In its brief in support of its application for rehearing, LCWSA asserts for the first time that certain statements made in affidavits of two LCWSA employees support the summary judgment in its favor on Williams’s negligence claim. However, in Fort James Operating Co. v. Stephens, 996 So.2d 833, 843-44 (Ala.2008), our supreme court held that it could not consider an argument the appellee, Stephens, raised for the first time in support of an application for rehearing. Accordingly, this court cannot consider LCWSA’s argument, made for the first time in support of its application for rehearing, regarding the propriety of the summary judgment as to Williams’s claim of negligence.

Finally, Williams argues that the trial court erred in “dismissing” McCafferty and the other “named defendants” when it granted LCWSA’s motion for. a summary judgment. Williams contends that McCafferty, NuSouth, and Rackley had no motions pending before the trial court. Therefore, he says, the entry of the summary judgment as to those parties “violates Rule 56(c)(2), [Ala. R. Civ. P.,] and was issued without any supporting materials filed by these named defendants.”

Contrary to Williams's assertion, McCaf-ferty did have a motion to dismiss pending before the trial court when the summary judgment was entered. In that motion, filed on August 17,. 2015, McCafferty argued that the first amended complaint failed to set forth any facts to support the claim of conspiracy and the civil claim alleging felonious theft of property, see §§ 6-5-370 and 13A-8-23, Ala. Code 1975, that Williams .had asserted against him. No evidentiary submissions were attached to that motion. On September 3, 2015, after McCafferty’s motion to dismiss had been filed, Williams filed a second amended complaint in which he added McCafferty as a defendant regarding the claim of trespass alleged in the first amended complaint. McCafferty did not file a motion to dismiss or for a summary judgment challenging that claim against him. Furthermore, McCafferty has not challenged Williams’s right to file the second amended complaint. See Rule 15(a), Ala. R. Civ. P.

In his appellate brief, McCafferty claims that the trial court’s summary judgment is properly viewed as a- judgment granting his motion to dismiss. He cites no authority for that proposition. He also states in his brief that Williams did not raise any challenge to the trial court’s “acceptance of McCafferty’s arguments that Williams failed'to state a claim against him,” As mentioned, however, McCafferty never filed a motion requesting that the trial court dismiss the claim of trespass that Williams made against him in the second amended complaint. McCafferty also fails to mention that claim in his appellate brief.

A fair reading of the judgment indicates that the trial court did not contemplate that “ground” as a reason for the entry of the summary judgment. Instead, the judgment clearly stated that the .trial court found “there is no genuine issue of material fact and that summary judgment is to be entered as-a matter of law .in favor of LCWSA and all remaining named Defendants in this action.” Therefore, we reject McCafferty’s assertion that, despite entering a summary judgment in his favor, the trial court actually agreed with him that Williams had failed to state claims against him and dismissed the claims—one of which was not even mentioned in McCaf-ferty’s motion to dismiss.

Williams argues that the trial court could not properly enter a summary judgment against defendants McCafferty, NuSouth,. and Rackley because they did not comply with the requirements of-Rule 56,. Ala. R. Civ. P.; specifically, he asserts that they failed to demonstrate to the trial court that there were no genuine issues of material. facts as to the claims against them and that they were entitled to a judgment as a matter of law as to those claims.

“[A]n entry of a summary judgment for the defendants would not be proper until they have complied with the requirement of the rule that they submit a narrative summary of what they contend to be the undisputed material facts. See Rule 56(c), Ala. R. Civ. P., Northwest Florida Truss, Inc. v. Baldwin County Comm’n, 782 So.2d 274 (Ala.2000), and Moore v. ClaimSouth, Inc., 628 So.2d 500 (Ala.1993).”

Singleton v. Alabama Dep’t of Corr., 819 So.2d 596, 600 (Ala.2001). Furthermore, the entry of a judgment in favor of the defendants who had not requested one deprived Williams of an opportunity to test their evidence or legal arguments.

“‘Under Rule 12 and Rule 56, Ala. R. Civ. P,, the nonmovant must receive “(1) adequate notice that the trial court intends to treat the motion as one for summary judgment and (2) a reasonable opportunity to present material in opposition.”’ Traywick v. Kidd, 142 So.3d 1189, 1195 (Ala.Civ.App.2013) (quoting Phillips v. AmSouth Bank, 833 So.2d 29, 31 (Ala.2002), quoting in turn Graveman v. Wind Drift Owners’ Ass’n, 607 So.2d 199, 202 (Ala.1992)).”

Johnson v. Dunn, 216 So.3d 1217, 1222 (Ala.Civ.App.2016).

Because McCafferty, NuSouth, and Rackley did not file motions for a summary judgment setting forth what each believed to be undisputed facts or stating why he or it was entitled to a judgment as a matter of law, the trial court had no basis upon which to - enter a summary judgment in their favor. Thus, the summary judgment in favor of McCafferty, NuSouth, and Rackley is improper. We note that, in his argument as to this issue, Williams did not challenge the propriety of the judgment as it pertained to A-l Title Loan. As mentioned, Williams’s pleadings and other documents-in the record do not make clear whether A-l Title Loan is a defendant in this action and, if so, whether it has been served. See note 3,' supra. Nonetheless, to the extent that Á-1 Title Loan is a defendant in this action, the judgment must be affirmed as to that defendant.

For the reasons set forth above, that portion of the judgment in favor of LCWSA on the negligence claim is reversed, as is that portion of the. judgment in favor of McCafferty, NuSouth, and Rackley as to the claims against them. The remainder of the judgment is affirmed.

APPLICATION OVERRULED; OPINION OF JUNE 17, 2016, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED

IN PART; REVERSED IN PART; AND REMANDED. '

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

      , According to Williams, the lake house, where he resides, is not within the Rogersville city limits or in Limestone' County, but in Lauderdale County,

      . In the letter, Williams explained that'he Was having difficulty keeping attorneys in the case. He said that the attorneys had given numerous reasons for their decisions not to represent him in the case,

      . The record indicates that NuSouth and Rackley might be part of the same entity or that they might share an address. It appears that Williams treats them as separate defendants. NuSouth was served with the complaint in the 2015 action; however, we cannot determine from the record before us whether Rackley was served. Oalcfair Subdivision is not named in the style of the amended complaints and is not mentioned in the text of the amended complaints. In other words, no allegations are made against Oakfair, and the record indicates that an entity by that name was not served in the 2015 action. Additionally, A-l Title Loan is not named in the style of Williams’s amended complaints, although it is referred to as a defendant within the body of the first amended complaint. There is no indication in the record that A-l Title Loan was substituted for one of the fictitiously named defendants, which were identified as "Others A-Z.’’ Williams’s complaints suggest that there is a'relationship between A-l Title Loan and McCafferty. In his affidavit in opposition to LCWSA’s motion for a dismissal or a summary judgment, Williams states that he "believe[s] A-l Title Loan is a business owned or operated by” McCafferty. It does not appear from the record that an entity named A-l Title Loan was served with the complaint in the 2015 action. These matters were not discussed in the parties' briefs on appeal.

      . We note that Williams does not mention A-l Title Loan when arguing that the trial court improperly entered a summary judgment against the other "named defendants.”


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    EX PARTE J.B. (In re S.Q. v. J.B.)
    2151005
    Court of Civil Appeals of Alabama.
    Nov. 18, 2016

      Heather Fann of Boyd, Fernambucq, Dunn <& Fann, P.C., Birmingham, for petitioner.
    Ralph J. Bolen of Bolen & Bolen, Attorneys at Law, Chelsea, for respondent. >

   THOMAS, Judge.

In January 2016, J.B. (“the alleged father”) commenced an action against S.Q. (“the mother”) in the Circuit Court of Martin County, Florida (“the Florida court”), seeking to establish the paternity of A.L.Q. (“the child”). The alleged father’s verified complaint initiating the action in the Florida court (“the Florida action”) averred that he and the mother were unmarried and that both were residents of Florida. He further averred that he and the mother had engaged in sexual intercourse in March, April, and May 2015 and, thus, that the child had been conceived in Florida.

In February 2016, the mother commenced a paternity and child-support action in the Jefferson Juvenile Court (“the Alabama court”), seeking to establish the alleged father’s paternity of the child and an award of child support. That action was assigned case no. CS-16-67 (“the Alabama action”). The mother alleged in her complaint in the Alabama action that she was a resident of Jefferson County, Alabama, and that the alleged father was a resident of Martin County, Florida. She made no averments regarding the state in which the child was conceived.

In April 2016, the alleged father filed in the Alabama action a verified motion to dismiss. In that motion, the alleged father averred that the Alabama court lacked both subject-matter jurisdiction over the Alabama action and personal jurisdiction over him. The alleged father stated that he was a resident of Florida and that the mother did not live in Jefferson County, Alabama, as she had alleged. Thé alleged father also notified the Alabama court that the Florida action was pending in the Florida court and stated that, pursuant to Ala. Code 1975, § 30-3B-204, the Alabama court was therefore required to communicate with the Florida court.

In response, the mother filed what she entitled as a “motion to strike [the alleged father’s] motion to dismiss.” In her response, the mother contested the jurat certifying the alleged father’s verified motion, because it failed to indicate the county or state in which the motion was sworn. She also contended that the alleged father had attempted to make statements regarding facts of which he had no personal knowledge. The mother attached to her response her own affidavit, in which she stated, among other things, that she had moved to Jefferson County, Alabama, from Jensen, Florida, in February 2015. The mother also attached to her affidavit rental agreements for two different residences in Jefferson County, Alabama, at which, she said, she had resided since February 2015.

The Alabama court set the matter for a hearing to be held on August 10, 2016. After hearing arguments of counsel at the August 10, 2016, hearing, which the Alabama court conducted via telephone, the Alabama court denied the alleged father’s verified motion to dismiss. The alleged father filed a motion to reconsider the August 10, 2016, order on August 24, 2016; he attached several documents to that motion. For example, he attached to that motion a custody agreement between the mother and R.K., the father of the mother’s other child, indicating that the mother, after February 2015, had listed a Jensen, Florida, address as her residence. In addition, he provided a statement from a process server indicating that packages bearing the mother’s name and a Jensen, Florida, address were at the residence located at that address when he attempted service on the mother in February 2016. The. Alabama court had not ruled on that motion as of September 21, 2016.

On September 22, 2016; the alleged father filed this petition for the writ of mandamus. This court called for an answer, and the answer was filed on October 6, 2016. The petition was submitted for decision on October 7, 2016. The alleged father argues that the Alabama court lacks personal jurisdiction over him .and that it also lacks subject-matter jurisdiction over the Alabama action under the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), codified at Ala. Code 1975, § 30-3B-101 et seq.

We must first consider whether the jurisdiction of this court was timely invoked. Rule 21(a)(3), Ala. R. App. P., provides that a petition for the writ of mandamus is presumptively timely if it is filed within the period permitted for an appeal of a judgment of the court in which the challenged order was entered. Because this is a paternity action commenced in the Jefferson Juvenile Court, the applicable period is 14 days. See Ex parte C.J.A., 12 So.3d 1214, 1215-16 (Ala. Civ. App. 2009) The Alabama court entered its interlocutory order denying the alleged father’s verified motion to dismiss on August 10, 2016, more than 14 days before the petition was filed. Motions to reconsider an interlocutory order do not toll the time for seeking review by a petition for the writ of mandamus. See Ex parte C.J.A., 12 So.3d at 1215-16; Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala. 2003). Thus, the petition was not timely filed.

Pursuant to Rule 21(a)(3), “[i]f a petition is filed outside th[e] presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.” The alleged father has included a statement regarding timeliness with his petition. As we explained in Ex parte Fiber Transport, L.L.C., 902 So.2d 98, 100-01 (Ala. Civ. App. 2004), a. party seeking to convince this court to consider an untimely filed petition should discuss the factors set out in

“[t]he ‘Committee Comments to Amendments to Rule 21(a) and 21(e)(4)[, Ala. R. App. P.,] Effective September 1, 2000,’ [which are as follows]:
“ ‘[T]he prejudice to the petitioner of the court’s not accepting the petition and the prejudice to the opposing party of the court’s accepting it; the impact on the timely administration of justice in the trial court; and whether the appellate court has pending before it other proceedings relating to the same action, and as to which the jurisdiction of the appellate court is unchallenged.’ ”

The alleged father states the following as reasons for this court to disregard the untimeliness of his petition: that the Alabama judge had been on leave for several months, that the parties were unaware that the August 10, 2016, hearing would be conducted via telephone until the date of the hearing, that the Alabama court was unable to view the alleged father’s evidence because- the. hearing was conducted via telephone, that the alleged father “fully anticipated [the Alabama] court’s dismissal of the case for lack of jurisdiction” based on the motion to reconsider, and that, despite having been provided documentary evidence in support of the motion to reconsider, the Alabama court had neither set the motion for a hearing nor ruled on the motion within 14 days. The alleged father also relies on the fact that the prejudice to him will be considerable, because, he says, he will be required to litigate the Alabama action, in violation of his due-process rights, while, he states, “the mother will face little prejudice.” Regarding the “impact on the timely administration of justice” in the Alabama court, the alleged father contends that the timely administration of justice “will be served by prompt and final ruling” on this petition.

We begin our analysis regarding the timeliness of the alleged father’s petition with the recognition that our supreme court recently determined that, in situations in which a petition for the writ of mandamus challenges the subject-matter jurisdiction of the court in which the challenged interlocutory order was rendered, the petition need not timely invoke the jurisdiction of the appellate court. Ex parte K.R., 210 So.3d 1106, 1112 (Ala. 2016). Instead, relying on the principle that an appellate court may review the issue of subject-matter jurisdiction regardless of whether that issue was raised in the trial court or even on appeal, our supreme court stated that subject-matter jurisdiction could be raised ex mero motu at any time despite the lack of a timely filed petition invoking the appellate court’s jurisdiction, Ex parte K.R., 210 So.3d at 1112. Thus, regarding the alleged father’s issue relating to the subject-matter jurisdiction of the Alabama court, we must consider that issue regardless of the failure of the alleged father to timely invoke our jurisdiction.

As noted, the alleged father makes other arguments in his petition. He argues that the Alabama court lacks personal jurisdiction over, him and that the Alabama court violated a provision of the UCCJEA by failing to communicate with the Florida court. See Ala. Code 1975, § 30-3B-206(b) (requiring a court facing a simultaneous proceeding in another state that appears to be exercising jurisdiction in conformity with the UCCJEA to “stay its proceeding and communicate with the court of the other state”). Those arguments are not arguments pertaining to the subject-matter jurisdiction of the Alabama court.and, therefore, could be rejected merely because the petition was untimely filed. Ex parte K.R., 210 So.3d at 1111-12. However, we may entertain all the issues raised in the petition if we conclude that the alleged father has asserted “good cause” for us to do so despite the untimeliness of the petition.

As noted, the alleged father’s statement regarding timeliness focuses on the unusual nature of the proceeding in the Alabama court and his attempt to have the interlocutory order reconsidered. We conclude that the facts and circumstances relating to the Alabama court’s conducting the hearing via telephone and its subsequent failure to hold a hearing on the motion to reconsider or to grant the motion to reconsider “are not relevant to the issue whether [the alleged father] ha[s] stated circumstances constituting ‘good cause’ for [his] delay in filing [the] petition for a writ of mandamus.” Ex parte Fiber Transp., 902 So.2d at 101. It is well settled that a motion to reconsider - does not toll the time to file a petition for the writ of mandamus, id. at 99-100, so we, cannot conceive of allowing the petitioner’s belief that a trial court would grant a motion to reconsider, and the petitioner’s surprise when it does not, to form a basis for permitting the petitioner to seek mandamus review outside the presumptively reasonable time for- doing so. However, the alleged. father makes further arguments relating to prejudice and “the impact on the timely administration of justice,” which are factors that this court should consider when determining whether a petitioner has established good cause for the consideration of an untimely petition under Rule '21(a)(3). See Ex parte Fiber Transp,, 902 So.2d at 100-01.

The alleged father asserts that he will suffer prejudice resulting from the potential loss of his .ability to seek mandamus review of the denial of his motion to dismiss. Specifically, he contends that he will be forced to litigate this matter in the Alabama court despite the violation of his due-process rights resulting from the Alabama court’s improperly exercising personal jurisdiction over him. He mentions also that the Florida action will not proceed until the Alabama action is resolved. He further asserts, albeit in a conclusory fashion, that our consideration of his untimely petition will not prejudice the mother, ' perhaps because the parties seek the same basic relief—that the alleged father be declared the father of the child. In addition, as we have explained, the alleged father’s petition, insofar as it challenges the subject-matter jurisdiction of the Alabama court, must be considered despite the untimely filing of the petition; thus, we consider that we have pending before us “other' proceedings relating to the same action, and as to which the jurisdiction of the appellate court [may not be] []challenged.” Committee Comments to Amendments to Rule 21(a) and 21(e)(4), ■ Ala. R. App. P., effective September 1, 2000. Based on these facts and circumstances, we conclude that the alleged father’s statement regarding timeliness establishes good cause for our consideration of the petition despite its being filed outside the presumptively reasonable time for its filing, and, therefore, each of the issues raised in the alleged father’s petition are validly before us for our consideration.

The alleged father first argues that the Alabama court lacks personal jurisdiction over him.

“ ‘ “[A] petition for a writ of mandamus is the proper device by which to challenge the denial of a motion to dismiss for lack of in personam jurisdiction.” Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d 519, 525 (Ala. 2003). “A petitioner may be entitled to a writ of mandamus in such a case upon a showing of a clear legal right to an order dismissing the action against it.” Ex parte First Western Bank, 898 So.2d 701, 704 (Ala. 2004). “ ‘The burden of establishing a clear legal right to the relief sought rests with the petitioner.’” Ex parte Dangerfield, 49 So.3d 675, 680 (Ala. 2010) (quoting Ex parte Metropolitan Prop. & Cas. Ins. Co., 974. So.2d 967, 972 (Ala. 2007)).’ ”

Ex parte W.C.R., 98 So.3d 1144, 1145 (Ala. Civ. App. 2012) (quoting Ex parte McNeese Title, LLC, 82 So.3d 670, 673 (Ala. 2011)).

The bases for personal jurisdiction over a nonresident defendant in a paternity action are set out in Ala. Code 1975, § 30-3D-201:

“(a) In a proceeding to establish or enforce a support order or to determine parentage of a child, a tribunal of this state may exercise personal jurisdiction over a nonresident individual or the individual’s guardian or conservator if:
“(1) the individual is personally ' served with summons within this state;
“(2) the individual submits to the jurisdiction of this state by consent in a record, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
“(3) the individual resided with the child in this state;
“(4) the individual resided in this state and provided prenatal expenses or support for the child;
“(5) the child resides in this state as a result of the acts or directives of the individual;
“(6) the individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse;
“(7) the individual asserted parentage of a child in the putative father registry maintained in this state by the Department of Human Resources; or
“(8) there is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.”

The alleged father contends that the mother’s complaint in the Alabama action fails to assert any basis under § 30-3D-201 for personal jurisdiction over him. Indeed, the mother’s complaint avers only that the alleged father lives in Florida, that he and the mother are not married, that he has held out the child to be his natural child, and that he has a duty to support the child. At the conclusion of her complaint, the mother requests that the alleged father be served at an address in Florida. The complaint reveals no connection between the alleged father and the State of Alabama.

In his verified motion to dismiss, the alleged father states that he resides in Florida. He also avers that he has never lived in Alabama. In her response to the alleged father’s motion to dismiss, the mother barely addresses his personal-jurisdiction challenge, stating in her response only that “jurisdiction does not lie where the child was conceived but with the residency of [the mother].” Similarly, in her answer to the alleged father’s petition for the writ of mandamus, the mother reiterates that jurisdiction in Jefferson County, Alabama, is proper because she resides there.

We considered the application of Ala. Code 1975, former § 30-3A-201, the precursor statute to § 30-3D-201, in Ex parte W.C.R., 98 So.3d 1144 (Ala. Civ. App. 2012), which is quite similar to the instant case. The complaint initiating the action in Ex parte W.C.R. was filed by N.L.J., the mother of a child born out of wedlock; she requested a paternity determination and child support. Ex parte W.C.R., 98 So.3d at 1145. N.L.J. alleged in her complaint that W.C.R. was the father of the child; he was served in Louisiana. Id W.C.R. appeared specially in the action and moved to dismiss the action based on lack of personal jurisdiction over him. Id The trial court, after a hearing, denied W.C.R.’s motion, and he sought review of that denial by filing a petition for the writ of mandamus. Id.

We explained in Ex parte W.C.R. that former § 30-3A-201 set out the bases for jurisdiction over a defendant in a paternity and child-support action. Id. at 1146. The bases under § 30-3A-201 were identical to those that now appear in §'30-3D-201. W.C.R. contended that no basis existed for the exercise of personal jurisdiction over him. Id. at 1145. N.L.J. agreed that the only possible basis for jurisdiction over W.C.R. was that set out in former § 30-3A-201(8). Id. at 1146.

We determined that no basis for personal jurisdiction over W.C.R. existed, explaining as follows:

“It is well settled that
“ ‘[t]he extent of an Alabama court’s personal jurisdiction over a person or corporation is governed by Rule 4.2, Ala. R. Civ. P., Alabama’s “long-arm rule,” bounded by the limits of due process under the federal and state constitutions. Sieber v. Campbell, 810 So.2d 641 (Ala. 2001). Rule 4.2(b), as amended in 2004, states:
“ ‘ “(b) Basis for Out-of-State Service. An appropriate basis exists for service of process outside of this state upon a person or entity in any action in this state when the person or entity has such contacts with this state that the prosecution of the action against the person or entity in this state is not inconsistent with the constitution of this state or the Constitution of the United States....”
“ ‘In accordance with the plain language of Rule 4.2, both before and after the 2004 amendment, Alabama’s long-arm rule consistently has been interpreted by this Court to extend the jurisdiction of Alabama courts to the permissible limits of due process. Duke v. Young, 496 So.2d 37 (Ala. 1986); DeSotacho, Inc. v. Valnit Indus., Inc., 350 So.2d 447 (Ala. 1977). As this Court reiterated in Ex parte McInnis, 820 So.2d 795, 802 (Ala. 2001) (quoting Sudduth v. Howard, 646 So.2d 664, 667 (Ala. 1994)), and even more recently in Hiller Investments Inc. v. Insultech Group, Inc., 957 So.2d 1111, 1115 (Ala. 2006): “Rule 4.2, Ala. R. Civ. P., extends the personal jurisdiction of the Alabama courts to the limit of due process under the federal and state constitutions.” ...
‘“This Court discussed the extent of the personal jurisdiction of Alabama courts in Elliott v. Van Kleef, 830 So.2d 726, 730 (Ala. 2002):
““‘This Court has interpreted the due .process guaranteed under the Alabama Constitution to be coextensive with the due process guaranteed under the United States Constitution. See Alabama Waterproofing Co. v. Hanby, 431 So.2d 141, 145 (Ala. 1983), and DeSotacho, Inc. v. Valnit Indus., Inc., 1350 So.2d 447, 449 (Ala. 1977)....
“‘“The Due Process Clause of the Fourteenth Amendment permits a forum state to subject a nonresident defendant to its courts only when that defendant has sufficient ‘minimum contacts’ with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The critical question with regard to the nonresident defendant’s contacts is whether the contacts are such that the nonresident defendant ‘ “should reasonably anticipate being haled into court” ’ in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), quoting WorldWide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).” ’
“Ex parte DBI, Inc., 23 So.3d 635, 643-44 (Ala. 2009) (emphasis omitted),
“Moreover, in Ex parte McNeese Title, LLC, [82 So.3d 670 (Ala. 2011)], our supreme court noted the burden on the respective parties in establishing personal jurisdiction when it is at issue. Specifically,
“‘“[our supreme court] has explained the appropriate analysis and the parties’ respective burdens on a personal-jurisdiction issue as follows. ‘The plaintiff has the burden of proving that the trial court has personal jurisdiction over the defendant, Ex parte Covington Pike Dodge, Inc., 904 So.2d 226 (Ala. 2004).’ J.C. Duke & Assocs. Gen. Contractors, Inc. v. West, 991 So.2d 194, 196 (Ala. 2008).
“ ““ “ ‘In considering a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for want of personal jurisdiction, a court must consider as true the allegations of the plaintiffs complaint not controverted by the defendant’s affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir. 1996), and Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (11th Cir. 1990), and “where the plaintiff s. complaint and the defendant’s affidavits conflict, the ... court must construe all reasonable inferences in favor of the plaintiff,” Robinson, 74 F.3d at 255 (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990)).’ ”
“ ‘ “ Wenger Tree Serv. v. Royal Truck & Equip., Inc., 853 So.2d 888, 894 (Ala. 2002) (quoting Ex parte McInnis, 820 So.2d 795, 798 (Ala. 2001)). However, if the defendant makes a prima facie evidentiary showing that the Court has no personal jurisdiction, “the plaintiff .is then required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and he may not merely reiterate the factual allegations in the complaint.” Mercantile Capital, LP v. Federal Transtel, Inc., 193 F.Supp.2d 1243, 1247 (N.D. Ala. 2002) (citing Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000)). See also Hansen v. Neumueller GmbH, 163 F.R.D. 471, 474-75 (D. Del. 1995) (“When a defendant files a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(2), and supports that motion with affidavits, plaintiff is required to controvert those affidavits with his own affidavits or other competent evidence in order to survive the motion.”) (citing Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir. 1984)).’
“ ‘ “Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 229-30 (Ala. 2004) (...; footnote omitted).”
“‘Ex parte Excelsior Fin., Inc., 42 So.3d 96, 103 (Ala. 2010).
“ ‘However, when the complaint fails to allege any jurisdictional basis, “there is nothing in the complaint..., that the court must consider as true and that therefore places [any] burden on [the defendant] to controvert by affidavit.” Excelsior, 42 So.3d at 104 (defendant need not present evidence of absence of jurisdiction when the complaint contains no jurisdictional averments).’
“Ex parte McÑeese Title, LLC, 82 So.3d at 674 (emphasis omitted).
“In the. present case, [N.LJ.’s] complaint failed to allege any jurisdictional basis for the Alabama trial court to have in personam jurisdiction over [W.C.R.]. Specifically, she averred that she resided in Alabama with the child, that [W.C.R.] resided in Louisiana, that [W.C.R.] had never resided in the same state as the child, and that [W.C.R.] had never visited the child. Thus, [N.L.J.] failed to state that [W.C.R.] had had any contacts with Alabama, Furthermore, in his motion to dismiss, [W.C.R,] stated that he has never resided in Alabama, that he is domiciled in Louisiana, and that he was served with the complaint in Louisiana. Therefore, the record is devoid of evidence of any contacts that [W.C.R.] may have with Alabama to sugr gest that he had sufficient ‘minimum contacts’ with Alabama or ‘should reasonably anticipate being haled into court’ in Alabama. World-Wide Volkswagen Corp. v. Woodson, 444 U.S, 286, 291, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).”

Ex parte W.C.R., 98 So.3d at 1146-48.

Much like the situation presented in Ex parte W.C.R., the materials before us in the present matter provide no foundation for a determination that the Alabama court has a basis for exercising personal jurisdiction over the alleged father. The allegations in the mother’s complaint and the alleged father’s assertions in his verified motion to dismiss reveal, without dispute, that the alleged father is a resident of Florida. The mother has made no allegation that the alleged father has ever been to Alabama, that the child was conceived in Alabama, or that the alleged father’s “acts or directives” resulted in the child’s residency in this state. § 30r-3D-201(a). Thus, under § 30-3D-201(a), the only possible basis for the Alabama court’s jurisdiction is under subsection (8). However, neither the complaint nor any other materials before us contain allegations indicating that the 'alleged father has had any, much less minimum, contacts with Alabama.

Based on Ex parte W.C.R., we conclude that the mother has failed in her burden to prove that the Alabama court has a basis for exercising personal jurisdiction over the alleged father. The alleged father has demonstrated a clear, legal right to the relief he seeks. The Alabama court is therefore ordered to dismiss the Alabama action. In light of our resolution of the alleged father’s personal-jurisdiction challenge, we pretermit discussion of the other issues raised in his petition. See Ex parte Chatham, 109 So.3d 662, 663 (Ala. Civ. App. 2012) (pretermitting other issues after resolution of an issue dispositive of the petition).

PETITION GRANTED; WRIT ISSUED.

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

      . Thus, the alleged father was not required to rebut the mother's jurisdictional averments with evidence, see Ex parte W.C.R., 98 So.3d at 1148 (quoting Ex parte McNeese Title, LLC, 82 So.3d 670, 674 (Ala. 2011), quoting in turn Ex parte Excelsior Fin., Inc., 42 So.3d 96, 104 (Ala. 2010)), and we need not determine whether the missing information on the jurat certifying the alleged father's verified motion to dismiss resulted in that motion being unverified,


author: JOINER, Judge,

text:
    Ex parte State of Alabama. (In re STATE of Alabama v. L.D.B.)
    CR-15-1128
    Court of Criminal Appeals of Alabama.
    Nov. 10, 2016
    Jeffrey A. Willis, asst. dist. atty., Ash-land, for petitioner.
   ORDER

The State of Alabama filed this petition for a writ of mandamus requesting that this Court direct Judge George C. Simpson to set aside his May 24, 2016, order granting youthful-offendér status to L.D.B. The State filed a motion to reconsider on June 1, 2016, and Judge Simpson denied that motion on June 14, 2016.

This Court expresses no opinion on the merits of the State’s arguments or the appropriateness of the trial court’s actions in this case, because the State’s petition is not timely filed. A petition for a writ of mandamus must be filed within a reasonable time, and the presumptively reasonable time is defined as the time for taking an appeal. See Rule 21(a)(3), Ala. R. App. P. It appears from the petition that the State is seeking review of a pretrial order, rather than a posttrial order. Accordingly, the presumptively reasonable time for the State to file its petition is seven days from the date of Judge Simpson’s order granting youthful-offender status to L.D.B. Cf. State v. Ellis, 165 So.3d 576 (Ala. 2014). Rule 21(a)(3), Ala. R. App. P., provides that a petition filed outside the presumptively reasonable time shall include a statement of circumstances constituting good cause for this Court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time. The State did not include such a statement in its petition.

In order to have timely filed its petition for a writ of mandamus, the State would have had to file it within seven days of Judge Simpson’s May 24, 2016, order. The State, instead, filed a motion to reconsider on June 1, 2016. The motion to reconsider was denied on June 14, 2016. “A motion for reconsideration of an interlocutory order does not toll the period for filing a petition for a writ of mandamus.” Ex parte Children’s Hospital of Alabama, 931 So.2d 1, 6 (Ala. 2005). See also Ex parte Troutman Sanders, LLP, 866 So.2d 547 (Ala. 2003). The petition was filed on June 20, 2016— some 27 days after the entry of the May 24, 2016, order. Accordingly, this petition for a writ of mandamus is hereby DISMISSED.

Windom, P.J., and Welch and Kellum, JJ., concur. Joiner, J., concurs specially,. with opinion, joined by Burke, J.

JOINER, Judge,

concurring specially.

The State of Alabama has filed a petition for a writ of mandamus asking this Court to direct the Clay Circuit Court to set aside its May 24, 2016, order granting L.D.B. youthful-offender status. Because the State’s petition was not filed within a presumptively reasonable time and because the State’s petition does not “include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time,” see Rule 21(a)(3), Ala. R. App. P., I must concur with this Court’s decision to dismiss the State’s untimely petition. I write specially, however, to note that, had the State either filed a timely petition or demonstrated “good cause” for its untimely filing, I would be inclined, to issue the writ.

In this case, the Clay County grand jury indicted L.D.B. for one count of murder, see § 13A-6-2, Ala. Code 1975, for “intentionally causing the death of Jolee Nicole Callan, by shooting her with a pistol.” (State’s petition, p. 135, Exhibit C.) Because he was only 52 days shy of turning 21 years old when he allegedly shot and killed Callan, L.D.B. “applied to be tried and treated as a Youthful Offender, pursuant to ... § 15—19—1[, Ala. Code 1975].” (State’s petition, p. 135, Exhibit C.)

The Youthful Offender Act requires a circuit court to conduct an evidentiary hearing on a defendant’s application for youthful-offender status when that defendant has been “charged with a crime that contains as an element of the crime ... that the defendant ... intentionally killed the victim.” Thus, the circuit court, on May 24, 2016, 'conducted an evidentiary hearing on “the allegations of the crime and the extent of injuries of the victim.” § 15—19— 1(c), Ala. Code 1975.

At that hearing, the State presented evidence that tended to establish the following: On August 30, 2015, L.D.B. telephoned emergency 911 and told the operator that he had “murdered [his] ex-girlfriend” on the Pinhoti Trail at Mount Cheaha. (State’s petition, p. 33, Exhibit A.) Additionally, L.D.B. told the operator where law-enforcement officers could find him. When a law-enforcement officer with the Oxford Police Department found L.D.B. and took him into custody, L.D.B. told the officer that the “murder weapon was in the backseat of his car.” (State’s petition, p. 33, Exhibit A.) Additionally, L.D.B. told the officer that he and Cal-lan had

“decided to do a suicide pact; that they would go to a place in Mount Cheaha and jump. [L.D.B.] said he brought a gun for backup just in case they couldn’t go through with it. [L.D.B.] also stated that [Callan] did not want to see it coming and that he shot her in the back of the head.”

(State’s petition, p. 34, Exhibit A.) L.D.B. explained that, after he shot Callan, he “threw her body off the cliff.” (State’s petition, p. 34, Exhibit A.)

Shanon House, an investigator with the Clay County Sheriffs Department, was dispatched to the Pinhoti Trail to investigate the murder L.D.B. said had occurred there. According to Investigator House, when she arrived at the Pinhoti Trail she was led by other law-enforcement officers to a cliff from which Callan’s body.had been thrown. Investigator House explained that she had to climb down approximately 40 feet to get to Callan’s body. She further explained that, after getting Callan to the morgue, the coroner discovered that Cal-lan had been shot twice—one shot “in the back of the head, and the other one was point-blank in between the eyes.” (State’s petition, p. 31, Exhibit A.) According to Investigator House, Callan had a “burn mark” right between her eyes, which, she said, came from- “the barrel of the gun.” (State’s petition, p. 13, Exhibit A.)

Investigator House testified that she spoke with L.D.B. about the murder and that he explained that he shot Callan.“in the back of the head” then “rolled her over and shot her again between the eyes and then [threw] her off the cliff so a walking by family or whoever else walked by the trail would not see her.” (State’s petition, p. 35, Exhibit A).

■ Although L.D.B. claimed that he and Callan had a “suicide pact,” Investigator House explained that her investigation revealed no evidence that such a pact existed; . rather, she explained that text messages between L.D.B. and Callan revealed the following:,

“From my understanding, ... I do believe at one time [L.D.B. and Callan] wfere cohabitating; they were living together. They broke up, and I do believe that she had started seeing someone else. And [L.D.B.] had been threatening to commit, suicide; that he was constantly talking about it. And then [Callan] finally broke down and said, ’Yeah, I’ll go hiking with you for one—you know, one last time.’, ■
“I think [Callan] referred [to] it as a symbolic reason.”

(State’s petition, pp. 36-37, Exhibit A.) Investigator House explained that Callan then drove to L.D.B.’s house and together they drove approximately an hour and 15 minutes to Mount Cheaha where, upon arriving, L.D.B. shot Callan and threw her body off of a 40-foot cliff.

The State also presented to the circuit court statements from two inmates—Sha-hiem Ackles and John Morrison—in which the inmates claimed that L.D.B, admitted to killing Callan because he “couldn’t see her with anybody else,” explained that he did not feel any remorse for shooting her, and contended that “he would not have gotten caught if he had not told on himself.” (State’s petition, p. -40, Exhibit A.)

Additionally, at the evidentiary hearing, L.D.B. presented the testimony of Dr. John R. Goff, a clinical neuropsychologist, who explained that he had performed several tests on L.D.B. and had concluded that L.D.B. has Asperger’s Disorder.. According to Dr. Goff, L.D.B.’s disorder would make it difficult for him to assimilate in a prison setting.

After the evidentiary, hearing, the circuit court issued- an order granting L.D.B. youthful-offender status, finding that if it

“were to deny youthful offender to [L.D.B,,] whose only prior offense was the running of a stop sign, and who, immediately following the offense, called 911 and admitted to the offense, the only .... realistic basis, upon which this court would take that action would be the seriousness of a charge of. murder, and yet Watkins[ v. State, 357 So.2d 156 (Ala. Crim. App. 1977),] prohibits this court from doing that. Perhaps this court could recite the evidence and state that youthful offender status is denied due'to that evidence; however, the actual, although unacknowledged, reason for denial would still be the seriousness of the charge, disallowed by Watkins, supra, and this court elects to take seriously the mandates of our Court of Criminal Appeals.”

(State’s petition, pp. 135-36, Exhibit C.)

Thereafter, the State moved the circuit court to reconsider its order granting L.D.B. youthful-offender status, arguing that, although Watkins v. State, 357 So.2d 156 (Ala. Crim. App. 1977), prohibits the circuit court from denying youthful-offender status based on the seriousness of the charged offense, the circuit court may consider the nature of the facts underlying the charged offense as a sufficient reason for denying youthful-offender status.

On June 14, 2016, the circuit court issued an order denying the State’s motion to reconsider. In that order, the circuit court acknowledged the “legal premise that the nature of the fact situation on which a charge is based may, alone, be a sufficient reason for denying youthful offender status. Ex parte Farrell, 591 So.2d 444, 449 (Ala. 1991).” The court, however, concluded:

“It is difficult to imagine a set of facts justifying a charge of murder which would not provide a strong motivation to deny youthful offender; however, Farrell, supra, additionally affirmed the previous state of the law, that the nature of the charge, alone, is an insufficient basis upon which to deny youthful offender. It would appear, then, that the facts would need to be somewhat more egregious than simply intentionally causing the death of another, e.g., in the course of a robbery or conducted in a particularly brutal or callous manner or perpetrated against an infant or a child.
“Considering the prohibition against basing denial of youthful offender status simply on the nature of the charge, this court does not find a fact situation in this case which takes this matter beyond the pale of the nature of the charge, such as would mandate or even justify denial of youthful offender.”

(State’s petition, pp. 144-45, Exhibit E.)

With regard to a circuit court’s decision to grant or deny youthful-offender status, this Court has explained’:

“ ‘A trial court has almost absolute discretion in deciding whether to grant or to deny a defendant’s application for youthful-offender status, and this Court will not overturn such a decision absent an affirmative showing that the decision was arbitrary or that it was made without some investigation or examination of the defendant. Burks v. State, 600 So.2d 374 (Ala. Crim. App. 1991). The trial court need not articulate on the record its reasons for denying a defendant youthful-offender status. Reese v. State, 677 So.2d 1239 (Ala. Crim. App. 1996). “All that is required is that the trial court undertake an examination of the defendant sufficient to enable it to make an intelligent determination as to whether, in its discretion, the defendant is eligible for treatment as a youthful offender.” Gamble v. State, 791 So,2d 409, 419 (Ala. Crim. App. 2000) (citing Fields v. State, 644 So.2d 1322 (Ala. Crim. App. 1994)). “Generally, the trial court considers the nature of the crime charged, any prior convictions, the defendant’s age, and any other matters deemed relevant by the court.” Reese v. State, 677 So.2d at 1240.’
“Murphy[ v. State], 108 So.3d [531] at 539 [(Ala. Crim. App. 2012)].”

Foye v. State, 153 So,3d 854, 861 (Ala. Crim. App. 2013) (emphasis added).

Although I recognize that a circuit court has “almost absolute discretion” when determining whether to grant or deny youthful-offender status, here, after examining the State’s petition and the exhibits the State attached to that petition, I am not convinced that the circuit court truly considered “the nature of the crime charged” and the facts underlying that charge when it concluded that the “fact situation in this case” was not so “egregious” that it went “beyond the pale of the nature of the charge, such as would mandate or even justify denial of youthful[-]offender” status. Indeed, the nature of the facts underlying the offense charged in this case were calculated, callous, and egregious and would, standing alone, justify denying L.D.B. youthful-offender status.

As explained above, the State presented evidence indicating that L.D.B. lured his ex-girlfriend, Callan, to his house by telling her that he wanted to go hiking at the Pinhoti Trail. After making the nearly hour-and-15-minute drive to the Pinhoti Trail, L.D.B. shot Callan in the back of the head, rolled her body over and shot her between the eyes at “point-blank” range, and then threw her body off a cliff. Although L.D.B. claimed that he and Callan both intended to commit suicide, he told two other inmates that he killed Callan because he “couldn’t see her with anybody else,” that he did not feel any remorse for shooting her, and that “he would not have gotten caught if he had not told on himself.” Moreover, at the time Callan was killed, L.D.B, was not a minor; he was only 52 days short of turning 21 years old.

Given the calculated and callous nature of the facts underlying the charged offense in this case and given L.D.B.’s age at the time the offense was committed, I am convinced that there existed only one possible result for L.D.B.’s application for youthful-offender status—denial. Because the circuit court granted that application, I would conclude that the circuit court, in doing so, exceeded its “almost absolute discretion.” As it stands, however, the State’s petition for a writ of mandamus was not filed within a presumptively reasonable time, and this Court cannot issue the writ the State seeks in this case.

Thus, although L.D.B. committed an offense for which he could receive a possible maximum punishment of life imprisonment, the circuit court has determined that L.D.B.’s alleged actions were not so “egregious” as to warrant denying him youthful-offender status. Thus, L.D.B. faces, at the worst, a possible maximum sentence of three years in “the custody of the Board of Corrections.” See § 15-19-6, Ala. Code 1975.


author: Per Curiam.

text:
    Jahem REETERS, Petitioner, v. Scott J. ISRAEL, Sheriff of Broward County, Respondent.
    No. 4D17-1366
    District Court of Appeal of Florida, Fourth District.
    [June 28, 2017]
    Howard Finkelstein, Public Defender, and Donald J. Cannarozzi, Assistant Public Defender, Fort Lauderdale, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for respondent.
   Per Curiam.

Jahem Reeters, a juvenile charged as an adult, petitions for a writ of habeas corpus claiming that the trial court has improperly held him without bond for offenses punishable by life. We deny the petition and conclude' that the- holding of Treacy v. Lamberti, 141 So.3d 174 (Fla. 2013), does not apply in this case due to changes in juvenile sentencing law passed in 2014. Because life is now a possible punishment for juveniles charged as adults with offenses punishable by life, bond may be denied where the proof of guilt is evident or the presumption is great.

Factual and Procedural Background

In June 2016, when he was 14 years old, petitioner was taken into custody as a juvenile for carjacking with a firearm, carrying a concealed firearm, and fleeing or eluding police. The probable cause affidavit reflects that petitioner and a co-defendant approached the victim in a store parking lot as he walked to his vehicle. Petitioner demanded the victim’s keys, and when the victim refused, petitioner pointed a gun at the victim’s forehead. The victim handed over the keys, and petitioner and the- co-defendant took the victim’s vehicle. Petitioner drove the vehicle and refused to stop when police attempted to pull him over. He led police on a high speed chase. He and the co-defendant ultimately surrendered when cornered in a dead-end street. Police found the gun in the vehicle.

Petitioner was initially charged as a juvenile and released from custody. Eight months later, in Februaiy-2017, the State filed an information charging him as an adult for this incident with armed, carjacking, robbery with a firearm, aggravated fleeing and eluding (high speed), and driving without a license. The court issued a capias for petitioner’s arrest, directing that he be held without bond.

Before arraignment, recognizing that he would be taken into custody on the no bond capias, petitioner filed a motion to set bond and argued that, pursuant to Treacy v. Lamberti 141 So.3d 174 (Fla. 2013), he could not be held without bond. He. appeared at arraignment and was taken, into custody.

, At the hearing on the motion to set bond, the State noted that petitioner was charged in Miami-Dade circuit court with attempted robbery with a firearm and attempted felony murder. He had another Miami-Dade case for grand theft auto and burglary of a conveyance.

Defense counsel explained that petitioner was not alleged to be the shooter in the Miami-Dade case and that the trial judge in that case had released petitioner to house arrest on an ankle monitor after an Arthur hearing. Petitioner appeared at his' arraignment for this case wearing the ankle monitor and knowing he would be take'n into custody. Defense counsel argued that the court had to set bond based on Treacy. Counsel recognized that juvenile sentencing law had changed since Treacy but' argued that there is á presumption against a life sentence for a juvenile. The State would have to show that, considering the statutory factors, a life sentence is appropriate. Alternatively, defense counsel asked the court to exercise its discretion to grant bond and presented testimony from petitioner’s mother regarding his financial ability to post a bond.

The State countered that life was a possible sentence, whether or not it was likely, and that the court could hold petitioner with no bond.

The court concluded that Treacy no longer controlled because the law had changed. After reviewing the packet submitted by the State,, the court found that proof of guilt was evident and the presumption great. The court declined to exercise its discretion to grant bond pointing out the very serious nature of the charges in this case. Petitioner allegedly pointed a firearm at the victim’s head when he refused to give'up'the keys to his vehicle. The court explained that regardless of whether a life sentence was likely, the danger to the community and risk of flight were substantial. The court denied the motion and continued to hold petitioner without bond pending trial. This petition followed.

Analysis

This habeas corpus petition presents a pure question of law subject to a de novo standard of review. State v. Blair, 39 So.3d 1190, 1191 (Fla. 2010).

Article I, Section 14 of the Florida Constitution provides: “Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions.”

Armed carjacking and robbery, with a firearm are first degree felonies punishable by life. § 812.133(2)(a), Fla. Stat. (2016); § 812.13(2)(a), Fla. Stat. (2016). Petitioner does not contest the trial court’s finding that proof of guilt is evident and the presumption great for these counts. Nor does petitioner challenge the trial court’s discretionary decision to decline to set bond in this case. Petitioner’s argument is purely legal. He contends that Treacy remains valid and that he is entitled to bond.

In Treacy, the Florida Supreme Court held that a juvenile was entitled to bond, even for an offense punishable by life, because Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), prohibited a life sentence without parole for a non-homicide offense. Treacy, 141 So.3d at 175 (“Because we find that juvenile offenders cannot be charged with a crime punishable by life imprisonment under Florida’s current statutory scheme and Graham, we hold that such defendants are entitled to bond under the provisions of article I, section 14, of the Florida Constitution.”) (emphasis supplied). Central to the Florida Supreme Court’s decision was the fact Florida law at the time did not provide for parole or a sentence review process for juveniles. Thus, pursuant to Graham, a juvenile could not constitutionally receive a life sentence for a non-homi-eide offense at the time of Treacy.

In 2014, however, the Florida Legislature enacted new statutes for sentencing juveniles convicted as adults. Ch. 2014-220, Laws of Fla. Pursuant to section 921.1401, Florida Statutes (2016), a trial court may sentence a juvenile to life imprisonment for a non-homicide offense after considering various factors. Pursuant to section 921.1402, a juvenile sentenced to life (or beyond certain thresholds) is entitled to sentence review by the judge after a specified period.

Thus, if convicted as charged, petitioner could ultimately be sentenced to life if the judge finds it appropriate after considering the statutory factors in section 921,1401, which provides as follows:.

(2) In determining whether life imprisonment or a term of years equal to life imprisonment is an appropriate sentence, the court shall consider factors relevant to the offense and the defendant’s youth and attendant circum-' stances, including, but not limited to:
(a) The nature and circumstances of the offense committed by the defendant.
(b) .The effect of the crime on the victim’s family and on the community.
(c) ' The defendant’s age, maturity, intellectual capacity, and mental and emotional health at the time of the offense,
(d) The defendant’s background, including his or her family, home, and community'environment,
(e) The effect, if any, of immaturity, impetuosity, or failure to appreciate risks and consequences on the defendant’s participation in the offense.
(f) The extent of the defendant’s participation in the offense.
(g) The effect, if any, of familial pressure or peer pressure on the defendant’s actions.
(h) The nature and extent of the defendant’s prior criminal history.
(i) The effect, if any, of characteristics attributable to the defendant’s youth on the defendant’s judgment.
(j) The possibility of rehabilitating the defendant.

§ 921.1401(2), Fla. Stat. (2016).

If sentenced to life for non-homicide offenses, petitioner’s sentence would be subject to review after 20 years and, if necessary, 10 years thereafter. § 921.1402(d). Unlike the situation in Trea-cy, petitioner has not shown that a life sentence under the current statute would violate Graham.

Petitioner argues that the statutory scheme creates a presumption against a life sentence for a juvenile and that the State has failed to show that a life sentence would be appropriate under the 2014 statute. He contends that, absent evidence that the statutory factors support a life sentence, he is not charged with an offense punishable by life. He argues that Treaey has not been abrogated by the change in sentencing law and that, although a life sentence is possible and might ultimately be imposed, this does not mean that he can be held without bond. He argues that, although the legislature enacted sections 921.1401 and 921.1402 to satisfy the requirements of Graham, Treaey remains valid law because he cannot be sentenced to life without a full sentencing hearing. He notes that the court made no findings that he could be sentenced to life as authorized by section 921.1401.

We disagree with petitioner’s argument and conclude that Treaey’s holding does not apply under the facts of this case. Changes in juvenile sentencing law now make a life sentence possible. Treaey’s holding was based on the fact that a life sentence could not have been imposed “under Florida’s current statutory scheme.” 141 So.3d at 175 (emphasis supplied). That is no longer the situation. The Florida Constitution provides that the offense must be “punishable” by life: a life sentence must only be possible—not likely—in order to deny bond.

In Treaey, the Florida Supreme Court disagreed with this Court’s conclusion that Article I, Section 14 focused on the classification of the crime. Id. at 178. Treaey concluded that the plain language of the Constitution requires a punishment-based analysis. Id. Applying a punishment-based analysis, and the plain language of the Constitution, a life sentence is now possible, so Treaey’s holding no longer applies.

Conclusion

Petitioner has not shown error in the trial court’s conclusion that he is not entitled to bond under Article I, Section 14 of the Florida Constitution. To deny bond, the trial court was not required to find that a life sentence is likely under section 921.1401. Accordingly, the petition is denied.

Petition denied.

Taylor, Damoorgian and Gerber, JJ., concur.

      . State v. Arthur, 390 So.2d 717 (Fla. 1980).

      . Petitioner has not taken issue with the deni- . al of bond on the other two counts, which are not offenses punishable by life.

      . A defendant's youth and the other factors in section 921.1401 are matters that a trial court may consider when exercising its discretion to grant bond. See Arthur, 390 So.2d at 720 (recognizing that, even where proof of guilt is evident or the presumption great, the court has discretion to grant or deny bail and that "[o]n this issue, the burden is on the accused to demonstrate that release on bail is appropriate”).


author: Damoorgian, J.

text:
    Tasheem T. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-0296
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2017]

      Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Damoorgian, J.

Tasheem Davis appeals his conviction and sentence for one count of robbery with a firearm and one count of burglary of an occupied conveyance while armed with a firearm. Both offenses stemmed from a single criminal episode during which Appellant possessed, but did not discharge, a firearm. Appellant was sentenced to fifteen years with a ten year mandatory minimum for the robbery charge, and five years with a three year mandatory minimum for the burglary charge. The trial court, believing that it was constrained to do so pursuant to our original holding in Williams v. State, 125 So.3d 879 (Fla. 4th DCA 2013), imposed both mandatory minimum sentences consecutively. We affirm Appellant’s convictions without further comment, but for reasons discussed below, remand for imposition of concurrent mandatory minimum prison terms.

“Section 775.087, Florida Statutes, commonly referred to as the 10-20-Life statute, provides for mandatory minimum sentences for offenders who possess or use a firearm in some manner during the commission of certain crimes.” Mendenhall v. State, 48 So.3d 740, 746 (Fla. 2010). As to how sentences are to be imposed under the 10-20-Life statute, the statute provides:

It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection 'consecutively to any other term of imprisonment imposed for any other felony offense.

§ 775.087(2)(d), Pla. Stat. (2016) (emphasis added).

In Williams v. State, 125 So.3d 879, 884 (Fla. 4th DCA 2013), we held that based on the language in the above quoted subsection (2)(d), a trial court is required to impose the mandatory minimum sentences for qualifying felonies which occur during the same criminal episode consecutively. During the pendency of this appeal, the Florida Supreme Court quashed our decision in Williams v. State and held that “consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from fhe same criminal episode and a firearm was merely possessed but not discharged.” 18,6 So.3d 989, 993 (Fla. 2016).

In the present case, it is undisputed that Appellant did not discharge a firearm when committing the multiple qualifying offenses. Accordingly, the “trial court must impose the mandatory minimum sentences concurrently under such circumstances.” Williams, 186 So.3d at 993. We accordingly affirm Appellant’s convictions but remand for imposition of concurrent mandatory minimum prison terms. See Azor v. State, 192 So.3d 1255, 1255 (Fla. 4th DCA 2016).

Affirmed in part, reversed and remanded in part.

Ciklin and Levine, JJ., concur.