author: WILSON, J., FOR THE COURT:

text:
    C.D. PULLIAM, Appellant v. ALFA INSURANCE COMPANY and Angela Nance, Appellees
    NO. 2016-CA-00603-COA
    Court of Appeals of Mississippi.
    January 30, 2018
    ATTORNEY FOR APPELLANT: ROBERTA LYNN HAUGHTON
    ATTORNEYS FOR APPELLEES: RICHARD SHANE MCLAUGHLIN, MICHAEL EARL PHILLIPS, NICOLE H. MCLAUGHLIN, JACOB O. MALATESTA
    BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Annie Patterson was the owner and primary beneficiary of a $50,000 life insurance policy that insured the life of her nephew and ward, Christopher Nance. Annie designated Christopher's biological mother, Angela Nance, as the policy's contingent beneficiary. After Annie died, her father, C.D. Pulliam, attempted to make himself an owner and beneficiary of the policy. When Christopher died about a year later, a dispute arose as to whether C.D. or Angela was entitled to the proceeds of the policy.

¶ 2. The insurer, Alfa Insurance Co., filed an interpleader complaint to resolve the dispute and deposited the proceeds of the policy with the court. C.D. filed counterclaims against Alfa, alleging negligence and other tortious conduct in connection with his attempt to make changes to the policy. The chancery court eventually ruled that (1) Alfa was entitled to interplead all potential claimants under the policy and to be discharged from liability under the policy; (2) C.D.'s counterclaims should be "dismissed as moot"; and (3) Angela was entitled to the proceeds of the policy as its beneficiary. For the reasons that follow, we find no error and affirm as to the first and third issues, but we hold that C.D. permissibly filed counterclaims in this interpleader action and that those counterclaims should not have been "dismissed as moot." Accordingly, we affirm in part and reverse and remand in part for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 3. In September 2008, the Clay County Chancery Court appointed Annie Patterson general guardian of her nephew, Christopher Nance, who was then fourteen years old. Christopher's mother, Angela Nance, joined in Annie's petition for the guardianship. In November 2008, Alfa issued a $50,000 life insurance policy on the life of Christopher. Annie was the owner and primary beneficiary of the policy, and Angela was listed as the contingent beneficiary of the policy. Annie paid all premiums on the policy until her death on April 30, 2013. The policy provides that "upon the death of the owner, ownership and control of the policy ... shall pass to the estate of the deceased owner."

¶ 4. Annie was survived by her father, C.D. Pulliam, and siblings, Otis Pulliam and Willie Mae Townsend. No estate was ever opened for Annie. In October 2013, C.D. and Otis provided Alfa with an affidavit stating that they and Willie Mae were Annie's heirs. In addition, Otis completed an Alfa "Change of Ownership" form that purported to make Otis the owner of the policy, C.D. the contingent owner, Otis and C.D. the primary beneficiaries, and Willie Mae a contingent beneficiary. C.D. alleges that agents or employees of Alfa filled out the form and documentation and directed them to sign. C.D. also alleges that he paid all premiums on the policy after Annie's death.

¶ 5. Christopher died on November 16, 2014. The record contains a letter dated November 17, 2014, that is addressed to Annie and states as follows: "This is your notification that your recent policy change request has been closed as incomplete." The record is unclear as to what prompted this letter, which is dated only one day after Christopher's death but more than one year after Annie died and C.D. and Otis originally attempted to make changes to the policy. According to Alfa, the original attempted policy change was "closed as incomplete" because, in October 2013, Otis and C.D. had "incorrectly filled out a single owner form" rather than a form for multiple owners. As noted above, however, C.D. alleges that agents/employees of Alfa prepared the forms for him and Otis to sign.

¶ 6. On January 23, 2015, Alfa filed an interpleader complaint in the Clay County Chancery Court "to determine the proper beneficiary or beneficiaries of the ... policy." Alfa named C.D., Otis, Willie Mae, and Angela as defendants. Alfa stated that C.D. and Otis claimed that they were entitled to the proceeds of the policy as the primary beneficiaries. Alfa also stated that Angela had "not yet filed a claim" but might be entitled to the proceeds, "as she was named the contingent beneficiary by Annie ... when the policy was purchased." Alfa stated that it had "not been able to determine which of [them was] legally entitled to the proceeds." Alfa also filed a motion, which the court granted, to deposit $50,578.46 with the court pursuant to Mississippi Rule of Civil Procedure 22.

¶ 7. C.D. filed an answer and countercomplaint against Alfa. C.D. claimed that he was entitled to the proceeds of the policy, and he asserted counterclaims against Alfa for breach of contract, breach of the duty of good faith and fair dealing, negligence, gross negligence, bad faith failure to adjust and pay an insurance claim, tortious breach of contract, and punitive damages. C.D.'s countercomplaint generally alleged, among other things, that he had paid all premiums on the policy after Annie's death, that Alfa's agents or employees had filled out the change-of-ownership forms for him, and that any mistake in making the change of ownership and designation of new beneficiaries was the result of Alfa's tortious conduct. Angela sent a two-page pro se letter to the judge, which the clerk filed and docketed as her answer to Alfa's complaint. The docket reflects that Otis and Willie Mae were served, but neither answered the complaint or otherwise participated in the litigation.

¶ 8. Alfa answered C.D.'s countercomplaint and then filed a motion for summary judgment. In its motion for summary judgment, Alfa argued that it was entitled to summary judgment on its interpleader complaint because it had deposited the proceeds of the policy with the court. However, Alfa did not directly address C.D.'s counterclaims. The court held a hearing on the motion and granted Alfa's motion for summary judgment. The court's order stated that C.D.'s countercomplaint was "dismissed as moot." Angela appeared pro se at the summary judgment hearing, and the court advised her that she might want to hire an attorney to protect her interest in the litigation.

¶ 9. C.D. filed a notice of appeal from the court's order. However, Alfa filed a motion to dismiss the appeal. Alfa argued that the chancery court's order was not a final, appealable judgment because the chancellor did not finally adjudicate ownership of the interpled funds or certify the order as final pursuant to Mississippi Rule of Civil Procedure 54(b). A panel of the Supreme Court granted Alfa's motion and dismissed the appeal. Pulliam v. Alfa Ins. , No. 2015-TS-01147 (Dec. 17, 2015).

¶ 10. While the first appeal was pending, Angela retained counsel and filed a motion for summary judgment claiming ownership of the interpled funds as the rightful beneficiary of the policy. The chancery court subsequently granted Angela's motion for summary judgment and entered a final judgment finding that Angela was the beneficiary of the policy and that she was entitled to the proceeds because C.D. and Otis lacked authority to change the ownership and beneficiaries of the policy following Annie's death.

¶ 11. C.D. filed a timely notice of appeal from the final judgment. He identifies two issues on appeal: (1) whether the chancery court erred by "granting summary judgment to [Alfa] and dismissing [his] counterclaim" and (2) whether the chancery court erred in granting summary judgment and "awarding the interpled funds to Angela."

ANALYSIS

¶ 12. We review a chancery court's grant or denial of summary judgment de novo. Miss. Dep't of Revenue v. Hotel & Rest. Supply , 192 So.3d 942, 945 (¶ 5) (Miss. 2016). A party is entitled to summary judgment if the record shows that there is no genuine issue of material fact and that the party is entitled to a judgment as a matter of law. M.R.C.P. 56(c). We review the summary judgment record in the light most favorable to the nonmoving party. Thomas v. Chevron U.S.A. Inc. , 212 So.3d 58, 60 (¶ 7) (Miss. 2017). However, the nonmoving party "may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in [ Mississippi Rule of Civil Procedure 56 ], must set forth specific facts showing that there is a genuine issue for trial." M.R.C.P. 56(e). "To withstand summary judgment, the party opposing the motion must present sufficient proof to establish each element of each claim." Morton v. City of Shelby , 984 So.2d 323, 330 (¶ 17) (Miss. Ct. App. 2007).

I. Interpleader and C.D.'s Counterclaims Against Alfa

¶ 13. Mississippi Rule of Civil Procedure 22 permits a plaintiff to file a complaint for interpleader and join as defendants "[p]ersons having claims against the plaintiff ... when their claims are such that the plaintiff is or may be exposed to double or multiple liability." M.R.C.P. 22(a). "Any party seeking interpleader ... may deposit with the court the amount claimed, ... and the court may thereupon order such party discharged from liability as to such claims and the action shall continue as between the claimants of such money ...." M.R.C.P. 22(b). Interpleader protects a stakeholder subject to competing claims to identifiable funds "from being obligated to determine at his peril which claimant has the better claim." M.R.C.P. 22 cmt. "[A]nd, when the stakeholder himself has no interest in the fund, [interpleader] forces the claimants to contest what essentially is a controversy between them without embroiling the stakeholder in the litigation over the merits of the respective claims." Id. "The primary test for determining the propriety of interpleading the adverse claimants and discharging the stakeholder is whether the stakeholder legitimately fears multiple vexations directed against a single fund." Id.

¶ 14. "Ordinarily, interpleader is conducted in two 'stages.' " Id. In the first stage, the court determines "whether the plaintiff is entitled to interplead the defendants," and in the second stage, the court determines who is entitled to the interpled funds. Id. Alfa has admitted from the outset of this litigation that the beneficiary of the subject life insurance policy is entitled to its proceeds, which Alfa deposited with the chancery court. And Alfa's complaint only asked the chancery court to identify the proper beneficiary or beneficiaries under the policy. Therefore, Alfa emphasizes that its role should be limited to the "first stage" of the interpleader action.

¶ 15. We have no difficulty affirming the chancery court's determination that Alfa was entitled to interplead the defendants. Indeed, this case presents a common, well-recognized scenario in which interpleader is appropriate. See, e.g. , Jeffrey Jackson & Jason D. Childress, Mississippi Insurance Law and Practice § 19:12 (3d ed. 2017) ("A life insurer that is uncertain regarding to whom policy proceeds should be paid may interplead the competing claimants and tender the policy proceeds to the court."); 7 Charles Alan Wright, Arthur R. Miller et al., Federal Practice and Procedure § 1705 (3d ed. 2001) ("Typical examples involve multiple claims against a life-insurance company for the proceeds of a policy that focus on an attempted change of beneficiary ...."). Alfa legitimately feared multiple liability based on competing claims to the same life insurance proceeds. Therefore, interpleader was appropriate. See M.R.C.P. 22(a) & cmt.

¶ 16. On appeal, C.D. argues that interpleader is not appropriate because Alfa has "unclean hands." By "unclean hands," C.D. means that Alfa's alleged tortious conduct is responsible for the failure of his attempt to change the ownership and beneficiaries of the policy-or perhaps that Alfa induced him to pay premiums on a policy that he did not own. However, C.D.'s allegations-even if true-are not a defense to Alfa's interpleader complaint.

¶ 17. C.D.'s argument harkens back to the "historical requirements" for "equitable interpleader." First Nat'l Bank of Vicksburg v. Middleton , 480 So.2d 1153, 1155 (Miss. 1985). "Historically"-that is, prior to the adoption of the Mississippi Rules of Civil Procedure-"equitable interpleader ha[d] four requirements," one of which was that the party seeking interpleader "must have incurred no independent liability to either of the claimants." Id. (quoting V.A. Griffith, Mississippi Chancery Practice § 23 (2d ed. 1950) ). However, our Supreme Court held that " Rule 22 of the Mississippi Rules of Civil Procedure... terminated the historical requirements for interpleader in the chancery courts," including the no-independent-liability requirement. Id. at 1155, 1156-57. The Court explained that Rule 22 was "designed to eliminate the technicalities which formerly limited the use of interpleader, and thereunder interpleader is available to cover any situation of exposure to multiple liability under the procedure outlined in the rule." Id. at 1156 (emphasis added) (quoting 48 C.J.S. Interpleader § 5, at 125-26 (1981) ). Rule 22 is to be applied "liberally" and not subjected to "technical" limitations, "and any doubts should be resolved in favor of permitting an interpleader action to lie." Id. Rule 22"interpleader is a procedural device" "directed toward increasing the availability of interpleader." Id. Its availability is not subject to the equitable doctrine of unclean hands. Because interpleader was appropriate, and because Alfa deposited the full amount of the life insurance proceeds with the court, the chancery court appropriately released and discharged Alfa from any liability under the policy and as to the interpled funds. See M.R.C.P. 22(b) & cmt.

¶ 18. However, C.D.'s counterclaims against Alfa present a different issue. To begin with, it is clear that counterclaims are permissible in an interpleader action. See Robertson v. La Linda Inc. , 548 So.2d 1308, 1311-12 (Miss. 1989) ; Middleton , 480 So.2d at 1156-57 ; M.R.C.P. 22 cmt. (explaining that counterclaims by a claimant against the party that initiated the interpleader may be litigated in the second or third stage of an interpleader action); James W. Shelson, Mississippi Chancery Practice § 17:3 (2017) ("All ... counterclaims ... are appropriate for a resolution in the course of the interpleader proceedings, and the court will be in error if it refuses to entertain and decide all claims."); see also Kentucky Cent. Life Ins. v. Vollenweider , 844 S.W.2d 460, 461 (Mo. Ct. App. 1992) (interpleader action to determine rights to proceeds from life insurance policy; one claimant counterclaimed against insurer for misleading the insured "on how to go about changing ownership of the policy"; the appellate court noted that the counterclaim had been stayed pending appeal).

¶ 19. In this case, Alfa's motion for summary judgment in the chancery court did not directly address C.D.'s counterclaims. Rather, Alfa's motion addressed the availability of the interpleader procedure and Alfa's liability under the insurance policy as to the interpled funds (the proceeds of the policy). Moreover, it is clear that the chancery court's order granting summary judgment to Alfa did not address the merits of C.D.'s counterclaims. The court's order expressly stated that C.D.'s countercomplaint was "dismissed as moot."

¶ 20. C.D.'s independent claims against Alfa for negligence, fraud, and other torts may or may not have any merit. No court has addressed that issue, which is not before us on appeal. However, C.D.'s counterclaims are not "moot." They are separate and independent tort claims against Alfa. Moreover, Alfa's discharge from liability under the terms of the insurance policy did not terminate or bar C.D.'s tort claims. C.D. properly asserted these claims as counterclaims in the interpleader action, and the chancery court's refusal to entertain the claims was in error. See supra ¶ 18.

¶ 21. On appeal, Alfa argues that C.D.'s counterclaims involve distinct issues of fact and law and, thus, are only "permissive counterclaims," not "compulsory counterclaims." Alfa also predicts that C.D. "would likely seek discovery as to Alfa and its agents were [he] to proceed on [his] negligence claim." Alfa argues that, for these reasons, C.D.'s counterclaims "were properly dismissed as moot." However, characterization of the counterclaims as "permissive" or "compulsory" is irrelevant to the issues in this appeal. Even assuming (solely for the sake of argument) that the counterclaims were not compulsory, that does not render the claims "moot." Again, C.D. was entitled, under Mississippi Rules of Civil Procedure 13 and 22, to assert counterclaims against Alfa in this interpleader action. That being the case, it was error for the chancery court to dismiss the claims as "moot."

¶ 22. In summary, with respect to Alfa, we affirm the judgment of the chancery court insofar as the court permitted Alfa to interplead the defendants and discharged Alfa from liability under the policy and with regard to the interpled funds. However, we reverse and remand the judgment of the chancery court insofar as it dismissed C.D.'s counterclaims against Alfa as "moot." We now address the chancellor's subsequent ruling granting summary judgment to Angela as the beneficiary of the subject life insurance policy.

II. The Interpled Funds

¶ 23. "Generally, a policy of life insurance is a stand-alone contract whose purpose is to provide a sum of money to the named beneficiary upon the death of the listed insured." Barber v. Balboa Life Ins. , 747 So.2d 863, 866 (¶ 11) (Miss. Ct. App. 1999). The policy owner may select any individual as the policy's beneficiary. Van Zandt v. Morris , 196 Miss. 374, 380, 17 So.2d 435, 436 (1944). However, "[t]he policy owner's rights largely end at the death of the insured. The policy beneficiary then has a right to the proceeds, which until death is only an expectancy. At the insured's death the right to change the beneficiary no longer exists; the rights of the beneficiary have vested." Evans v. Moore , 853 So.2d 850, 855 (¶ 22) (Miss. Ct. App. 2003) (citations omitted).

¶ 24. As discussed above, the policy was issued to Annie as the owner and primary beneficiary, with Angela designated as the contingent beneficiary. The policy provides that "upon the death of the owner, ownership and control of the policy ... shall pass to the estate of the deceased owner." "The language and provisions of insurance policies are viewed as contracts and are subject to the same rules of interpretation as other contracts." Hayne v. The Doctors Co. , 145 So.3d 1175, 1180 (¶ 12) (Miss. 2014). "Because insurance policies are creatures of contract, if the language is clear and unambiguous, then the language of the policy must be interpreted as written." Id. Therefore, when Annie died ownership and control of the policy passed to her estate.

¶ 25. The chancellor concluded, and we agree, that C.D. and Otis had no authority to change the ownership of the policy or designate new beneficiaries. No estate was ever opened for Annie, nor was there ever any determination of her heirs. The only purported authority for C.D.'s and Otis's action is an affidavit they provided to Alfa identifying themselves (and Willie Mae) as Annie's heirs. This was insufficient to give them authority to change the ownership of a policy that, by its clear and unambiguous terms, was the property of Annie's estate. Cf. Long v. McKinney , 897 So.2d 160, 174 (¶ 60) (Miss. 2004) (holding that an "estate must, of course, be opened and administered through the chancery court" before claims may be pursued on its behalf); Delta Health Group Inc. v. Estate of Pope ex rel. Payne , 995 So.2d 123, 125-26 (¶ 12) (Miss. 2008) (holding that when "no estate had been opened," a party could not act as "the administrator of a non-existent estate").

¶ 26. While there does not appear to be a Mississippi case addressing this precise issue, courts in other states have reached the logical conclusion that parties such as C.D. and Otis lack authority to make changes to the ownership or beneficiaries of a life insurance policy owned by a deceased relative. In Prudential Insurance Co. v. Stephens , 498 F.Supp. 155, 157 (E.D. Va. 1980), the court held that when the policy owner died,

title to the policy passed to her administrator whenever he may qualify as such, not to her husband ... in his capacity as the sole heir of her estate. Although her husband was preferred by statute for appointment as administrator of her estate, he had to apply to qualify as administrator. Because he never qualified, title to the policy never passed to him, and any act of dominion he exercised over the policy, other than those acts specifically permitted by statute, had no legal effect. A change of the beneficiary of a life insurance policy does not fall within the ... narrow categories of permitted acts.

Id. at 157. (Emphasis supplied) (internal citation omitted).

¶ 27. Similarly, in Vollenweider , supra , the Missouri Court of Appeals held that the deceased policy owner's husband lacked authority make changes to the policy, although he was the insured and was named as her executor in her will. See Vollenweider , 844 S.W.2d at 462. The court held that the husband "never became the personal representative of [his deceased wife's] estate because her estate was not opened until after [his] death," and the husband lacked authority to make himself "the owner of the policy merely because he was named as personal representative under [her] will." Id.

¶ 28. The result is the same in this case. Neither C.D. nor Otis opened an estate or took any other steps to obtain the authority necessary to act on behalf of Annie's estate. Therefore, C.D. and Otis lacked the authority to make changes to the ownership or beneficiary designations of the subject life insurance policy, which became the property of Annie's estate upon her death. Accordingly, Annie's designation of Angela as the policy's contingent beneficiary remained in effect at the time of Christopher's death. And the chancery court correctly concluded that there was no genuine issue of material fact and that Angela was entitled to the proceeds of the policy.

CONCLUSION

¶ 29. Alfa was entitled to interplead the defendants and to be discharged from liability as to any claim to the proceeds of the insurance policy under the terms of the insurance policy. In addition, the chancery court correctly ruled that there was no genuine issue of material fact and that Angela was entitled to summary judgment and to the proceeds of the policy. Therefore, we affirm the chancery court on those issues. However, the Mississippi Rules of Civil Procedure permit counterclaims in an interpleader action, and C.D.'s counterclaims were not "moot" and should not have been dismissed on that ground. Accordingly, we reverse and remand that part of the case for further proceedings consistent with this opinion.

¶ 30. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      Like Virginia, Mississippi has certain statutes that permit a decedent's heirs at law to take possession of certain categories of the decedent's assets without opening and administering an estate. See, e.g. , Miss. Code Ann. § 91-7-322 (Rev. 2013); see generally Robert A. Weems, Wills and Administration of Estates in Mississippi § 2.52 (3d ed. 2003). It is not apparent that any of these statutes would apply to the facts of this case or that C.D. complied with the necessary statutory requirements. Nor has C.D. argued that any of these statutes apply or authorized him to change the ownership and beneficiaries of the policy. Therefore, this opinion does not address the applicability of any such statutes.


source: Caselaw Access Project

author: GRIFFIS, P.J., FOR THE COURT:

license: Public Domain

text:
    Earnest BELL a/k/a Ernest Bell a/k/a Earnest Bell, Jr., Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01751-COA
    Court of Appeals of Mississippi.
    February 20, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE
    BEFORE GRIFFIS, P.J., WESTBROOKS AND TINDELL, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Ernest Bell was convicted of attempted felony motor-vehicle theft. Bell has appealed, and his counsel has filed a brief pursuant to Lindsey v. State , 939 So.2d 743 (Miss. 2005). His counsel states he has searched the record but was unable to find any arguable issues for appellate review. Bell was given the opportunity to, but did not, file a pro se brief. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Otis Davis owned a red 1998 Pontiac Grand Prix, which he purchased for $1,500. On the morning of July 21, 2015, Otis locked and parked the vehicle on the side of Thompson Road near his job site. That afternoon, Oeisha Davis, Otis's daughter, was driving on Highway 82, crossing over onto Thompson Road, when she saw a black vehicle parked near her father's Grand Prix. As she approached, Oeisha saw a man emerge from the driver's side of Otis's car. When she asked what he was doing, the man responded, "Mike sent me." At that point, Oeisha's mother, Mary Turner, pulled up to the scene. When Mary arrived, Oeshia saw the passenger-side door of Otis's car open and a "taller guy" emerge from the Grand Prix. Both men subsequently drove off in the black vehicle.

¶ 3. Oeisha called the police. She gave a description and the license-plate number of the vehicle, as well as the direction the vehicle was headed. When Oeisha looked into the Grand Prix, she saw an object, later identified as a hammer, on the passenger-side floor. She also noticed damage to the steering column.

¶ 4. Mary lives on Thompson Road. She was headed towards Highway 82 when she saw her daughter stopped on the side of the road near Otis's car. When Mary approached the Grand Prix, she saw a man exit the driver's side of Otis's vehicle and another man exit the passenger side. According to Mary, the man who exited the passenger side yelled, "let's go," and the two men left the scene in a black vehicle. Mary testified that the man she saw exit the passenger side of the Grand Prix was driving the black vehicle. She further testified that the black vehicle had a Leflore County tag.

¶ 5. Mary testified that she saw "wrenches" inside the Grand Prix and noticed that the steering wheel was broken. She was presented a photo line-up, and she identified Bell as the man she saw emerge from the passenger side of Otis's Grand Prix. Mary also identified a photograph of the Grand Prix and said that it was the vehicle Bell exited.

¶ 6. Deputy Jim Burton with the Montgomery County Sheriff's Office was informed of an automobile break-in. Based on the description and license-plate number of the vehicle, Burton located and stopped the vehicle that Bell was driving. Burton then arrested Bell and a male passenger.

¶ 7. At the sheriff's office, Bell was advised of his Miranda rights. Bell signed a waiver of those rights and gave a recorded statement. The recorded statement was admitted into evidence and played for the jury. In the statement, Bell explained that he saw the Grand Prix on the side of the road and parked his vehicle so that his passenger could get out and look at the car. Bell admitted he was there when Oeisha and Mary arrived. However, Bell denied talking to them and denied being in the Grand Prix or using a hammer to damage the car.

¶ 8. Otis testified that he occasionally parked his car on the side of Thompson Road when he went to work. Otis stated his car was not for sale and did not have a "for sale" sign on it. Otis further stated that he did not call anyone to come get the car and that no one had permission to enter his locked vehicle. Otis also testified that he did not own the hammer found in his car, he had never seen the hammer before, and he did not leave the hammer in his car. Otis testified that, although there was no sign of forced entry, his car was "tore up" on the inside.

¶ 9. Bell testified at trial. Bell explained that he bought and repaired vehicles, and he would then resell the vehicles for profit. Bell told the jury that he "wasn't trying to steal [Otis's] car." Instead, he stopped to see whether the vehicle was for sale. However, Bell acknowledged that there was no "for sale" sign on the Grand Prix.

¶ 10. After the jury returned a guilty verdict, Bell was sentenced as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2014) to five years in the custody of the Mississippi Department of Corrections. Bell subsequently filed a motion for a judgment notwithstanding the verdict or, alternatively, a new trial. The motion was denied, and Bell timely appealed.

ANALYSIS

¶ 11. In Lindsey , the Mississippi Supreme Court implemented the following procedure for cases where appellate counsel does not believe any arguable issues exist for appellate review:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1) -[ (5), (8) ].
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client's appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding the arrest; (b) any possible violations of the client's right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issues or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant's success on appeal.
(5) Once briefing is complete, the appellate court must consider the case on the merits and render a decision.

Lindsey , 939 So.2d at 748 (¶ 18) (internal citations omitted).

¶ 12. Here, Bell's counsel filed a brief in compliance with Rule 28 and said that he had "diligently searched the procedural and factual history ... and scoured the record" but was unable to find any arguable issues that he could present in good faith for appellate review. Further, Bell's counsel claimed that he had "scrupulously" reviewed the entire record and transcript and considered the following: (a) the weight and sufficiency of the evidence, (b) speedy-trial issues, (c) challenges of jurors for cause, (d) all rulings of the trial court, (e) possible issues of ineffective assistance of counsel, (f) all jury instructions, (g) the admission of all evidence and exhibits, (h) the indictment, and (i) sentencing. Although Bell's counsel did not specifically assert that he had examined the reason for and the circumstances surrounding Bell's arrest or possible prosecutorial misconduct, he did say that he had reviewed the procedural and factual history of the case, as well as the indictment and transcript. Bell's counsel specifically concluded that, pursuant to Lindsey , he found no arguable issues for appellate review.

¶ 13. Bell's counsel sent a copy of the brief to Bell and informed Bell that although he found no arguable issues in the record, Bell had the right to file a pro se brief. The record shows Bell was given forty days, but did not file a brief.

¶ 14. We have independently reviewed the record. We find no arguable issues that require supplemental briefing or further review. We therefore affirm the judgment.

¶ 15. AFFIRMED.

LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.


author: WESTBROOKS, J., FOR THE COURT:

text:
    Derrick STOKES a/k/a Derrick Lee Stokes, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00045-COA
    Court of Appeals of Mississippi.
    February 20, 2018
    ATTORNEY FOR APPELLANT: DERRICK STOKES (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER
    BEFORE GRIFFIS, P.J., WESTBROOKS AND TINDELL, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. In May 2008, Derrick Stokes pleaded guilty to gratification of lust and exploitation of a child. The Madison County Circuit Court sentenced Stokes to fifteen years in the custody of the Mississippi Department of Corrections for the gratification-of-lust conviction. For the exploitation-of-a-child conviction, the circuit court sentenced Stokes to a consecutive ten-year sentence with five years suspended, five years to serve, and five years of post-release supervision. Stokes now appeals the denial of his fifth motion for post-conviction relief (PCR). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. To date, Stokes has filed five PCR motions. In Stokes's first PCR motion, he alleged that his guilty pleas were involuntary; he received ineffective assistance of counsel; he found newly discovered evidence; and he pleaded guilty based on misrepresentation and duress.

Stokes v. State , 66 So.3d 746, 747 (¶ 2) (Miss. Ct. App. 2011). The circuit court denied his PCR motion. Id. Stokes appealed to this Court, arguing that the circuit court erred in denying his motion without an evidentiary hearing; the circuit court erred by accepting his guilty plea without appointing a sign-language interpreter during the plea hearing because Stokes alleged he was legally deaf; and he received ineffective assistance of counsel. Id. This Court dismissed his appeal because it was untimely. Id. at 749 (¶ 8).

¶ 3. Stokes filed his second PCR motion on April 8, 2013. Stokes v. State , 145 So.3d 1238, 1239 (¶ 4) (Miss. Ct. App. 2014). Stokes argued once again that the circuit court erred by not appointing a sign-language interpreter. Id. Stokes asserted that had an interpreter been appointed, Stokes would not have entered the guilty pleas. Id. The circuit court held that his claims were time-barred and successive-writ barred. Id. Stokes appealed to this Court, arguing that the circuit court denied him due process when it did not appoint a sign-language interpreter during the plea hearing. Id. at (¶ 5). This Court affirmed the circuit court's judgment. Id. at 1241 (¶ 13).

¶ 4. On October 27, 2014, Stokes filed a third PCR motion. Stokes v. State , 199 So.3d 745, 748 (¶ 5) (Miss. Ct. App. 2016). The circuit court denied the motion as time-barred and successive-writ barred. Id. Stokes did not appeal that decision. Id. Instead, he filed a fourth PCR motion prior to the circuit court's denial of his third PCR motion. Id. Again, Stokes argued that his guilty pleas were involuntary because of his hearing impairment. Id. Additionally, he requested DNA testing. Id. The circuit court dismissed Stokes's fourth PCR motion, finding that it was time-barred and successive-writ barred. Id. Stokes appealed. Id. This Court affirmed the circuit court's judgment and noted that Stokes's ineffective-assistance-of-counsel claim was barred by res judicata. Id. at 749, 750 (¶¶ 12, 15).

¶ 5. Stokes filed his fifth PCR motion on October 12, 2016, more than eight years after his guilty pleas. Stokes again argued that his due-process rights were violated because he was not provided with a sign-language interpreter at the plea hearing. Stokes also claimed that the indictment was void for the omission of the word "feloniously." In support of his argument that he had a hearing impairment, Stokes attached his own affidavit and the affidavit of a fellow inmate. Stokes also attached two pages of an uncertified transcript from the Mississippi School for the Deaf and an uncertified copy of one page of an audiology report. The circuit court dismissed Stokes's fifth PCR motion because he had not raised any issue that might provide an exception to the procedural bars.

¶ 6. Aggrieved, Stokes appeals and presents the following arguments: (1) the circuit court erred in dismissing his fifth PCR motion; (2) he was denied due process because of an insufficient indictment; and (3) the circuit court should have appointed a sign-language interpreter during the plea hearing.

STANDARD OF REVIEW

¶ 7. "When reviewing a trial court's decision to [dismiss] a petition for post-conviction relief, this Court will not disturb the trial court's factual findings unless they are found to be clearly erroneous." Stokes , 145 So.3d at 1239 (¶ 6). "However, where questions of law are raised[,] the applicable standard of review is de novo." Lambert v. State , 941 So.2d 804, 807 (¶ 14) (Miss. 2006).

DISCUSSION

Whether the trial court erred in dismissing Stokes's PCR motion.

¶ 8. Stokes argues that his fifth PCR motion is not barred because his due-process rights were abridged by the absence of a sign-language interpreter at the guilty-plea hearing. The State argues that Stokes's motion is time-barred, successive-writ barred, and barred by res judicata.

¶ 9. A PCR motion "is untimely unless [it is] filed within three years after [the] entry of the judgment of conviction." Smith v. State , 118 So.3d 180, 182 (¶ 7) (Miss. Ct. App. 2013). Additionally an order denying or dismissing a PCR motion is a bar to a second or successive PCR motion. Miss. Code Ann. § 99-39-23(6) (Rev. 2015). Stokes entered his guilty pleas more than eight years ago, and the circuit court previously had dismissed four of Stokes's PCR motions. Thus, Stokes's fifth PCR motion is successive.

¶ 10. Stokes claims that the abridgment of his constitutional right to due process is an exception to the time bar and the successive-writ bar. Stokes is correct that "errors affecting fundamental constitutional rights" are exceptions to the procedural bars in the Mississippi Uniform Post-Conviction Relief Act. See Rowland v. State , 42 So.3d 503, 507 (¶ 12) (Miss. 2010). Nevertheless, a mere assertion of a constitutional-right violation does not automatically preclude the application of the procedural bars. Sims v. State , 227 So.3d 1167, 1169 (¶ 18) (Miss. Ct. App. 2017). To find an exception to the statute of limitation or the successive-writ bar, "[t]here must at least appear to be some basis for the truth of the claim ...." Stovall v. State , 873 So.2d 1056, 1058 (¶ 7) (Miss. Ct. App. 2004).

¶ 11. After reviewing the transcript of Stokes's plea hearing, we conclude that Stokes understood each question asked by the circuit court and answered knowingly and intelligently. When he was hesitant regarding a question, the circuit court repeated or rephrased the question, and Stokes quickly responded as though he understood each question. Therefore, Stokes's contentions fail to support an exception to the procedural bar.

¶ 12. Regarding Stokes's remaining issues, the circuit court has previously ruled on them incident to his earlier PCR motion. Consequently, we decline to address them.

CONCLUSION

¶ 13. Accordingly, we affirm the circuit court's judgment dismissing Stokes's fifth PCR motion.

¶ 14. AFFIRMED .

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND TINDELL, JJ., CONCUR.


author: BOLIN, Justice.

text:
    SSC SELMA OPERATING COMPANY, LLC, d/b/a Warren Manor Health and Rehabilitation Center, and SavaSeniorCare Administrative Services, LLC v. Jackie FIKES
    1160080
    Supreme Court of Alabama.
    May 19, 2017
    Joseph H. Driver, Donald B. Kirkpatrick II, R. Brett Adair, and Daniel B. Harris of Carr Allison, Birmingham, for appellants.
    James R. Morgan, Birmingham, for appellee.
   BOLIN, Justice.

SSC Selma Operating Company, LLC, doing business as Warren Manor Health and Rehabilitation Center, and SavaSeniorCare Administrative Services, LLC (hereinafter collectively referred to as "the companies"), appeal from an order of the Dallas Circuit Court denying their motion to compel arbitration of a retaliatory-discharge claim filed against them by Jackie Fikes. We reverse and remand.

Facts

On March 4, 2016, Fikes sued the companies, seeking to recover worker's compensation benefits pursuant to the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala. Code 1975 ("the worker's compensation claim"), and alleging that the companies had discharged her from her employment in violation of Ala. Code 1975, § 25-5-11.1, solely because she had filed a claim for worker's compensation benefits ("the retaliatory-discharge claim"). Fikes specifically alleged that on February 19, 2013, she suffered a work-related injury when she attempted to lift a patient while working for the companies as a certified nurse assistant; that she underwent medical treatment for her work-related injury; and that she returned to work under light-duty restrictions until March 4, 2014, at which time, she says, the companies wrongfully terminated her employment. Fikes requested in the complaint that the worker's compensation claim and the retaliatory-discharge claim be severed in order for the retaliatory-discharge claim to be tried by a jury. It does not appear from the record that the trial court severed the claims. The companies moved to compel arbitration of the retaliatory-discharge claim pursuant to their employment-dispute-resolution program (hereinafter "the EDR program") under which Fikes had agreed to be bound. Fikes responded, arguing that the retaliatory-discharge claim was not covered by the EDR program. On October 12, 2016, the trial court entered an order denying the companies' motion to compel arbitration; the companies appeal pursuant to Rule 4(d), Ala. R. App. P.

Standard of Review

"This Court's standard of review on an appeal from a trial court's order granting or denying a motion to compel arbitration is well settled. Bowen v. Security Pest Control, Inc., 879 So.2d 1139, 1141 (Ala. 2003). A direct appeal is the proper procedure by which to seek review of such an order, Rule 4(d), Ala. R. App. P., and this Court will review de novo the trial court's grant or denial of a motion to compel arbitration. Bowen, 879 So.2d at 1141. The party seeking to compel arbitration has the initial burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction involving interstate commerce.

Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So.2d 1129, 1132 (Ala. 2003). The party seeking to compel arbitration must present some evidence tending to establish its claim. Wolff Motor Co. v. White, 869 So.2d 1129, 1131 (Ala. 2003). Once the moving party meets that initial burden, the party opposing arbitration has the burden of presenting evidence tending to show that the arbitration agreement is invalid or that it does not apply to the dispute in question. Bowen, 879 So.2d at 1141. See also Title Max of Birmingham, Inc. v. Edwards, 973 So.2d 1050, 1052-53 (Ala. 2007)."

Alabama Title Loans, Inc. v. White, 80 So.3d 887, 891-92 (Ala. 2011).

Discussion

At the outset, it is noted that neither the companies nor Fikes disputes that the EDR program governs the arbitration of employment disputes between the companies and its employees or that the transaction-Fikes's employment by a company operating in 19 states-involves interstate commerce. The only issue before this Court is whether Fikes met her burden of demonstrating that her retaliatory-discharge claim was not covered under the EDR program. The relevant portions of the document establishing the EDR program state:

"Your decision to accept employment or to continue employment with the [companies] constitutes your agreement to be bound by the EDR Program. Likewise, the [companies] agree[ ] to be bound by the EDR Program. This mutual agreement to arbitrate claims means that both you and the [companies] are bound to use the EDR Program as the only means of resolving employment related disputes and to forego [sic] any right either may have to a jury trial on issues covered by the EDR Program.
"....
"The EDR Program is the process for resolving most workplace disputes between you and the [companies], including but not limited to, disputes concerning legally protected rights such as freedom from discrimination, retaliation or harassment.
"....
"Disputes covered under the EDR Program pertain to claims such as discipline, discrimination, fair treatment, harassment, termination and other legally protected rights [i.e., 'such as freedom from discrimination, retaliation or harassment'-as stated in the prior paragraph].
"Disputes not covered under the EDR Program relate to worker's compensation, unemployment benefits, health, welfare and retirement benefits, and claims by the [companies] for injunctive relief to protect trade secrets and confidential information."

(Emphasis added.)

Fikes, relying solely on the provision concerning disputes "not covered" under the EDR program, argues that the plain language of the provision is unambiguous and expressly provides that an employment dispute that "relate[s] to worker's compensation" is not covered under the EDR program. Specifically, she argues that the retaliatory-discharge claim is related to the worker's compensation claim because she has to demonstrate that the companies terminated her employment because she filed a claim for worker's compensation benefits. The companies, on the other hand, argue (1) that the EDR program specifically covers employment-related disputes concerning termination and legally protected rights such as freedom from retaliation; (2) that a retaliatory-discharge claim is not in the nature of a worker's compensation claim; and (3) that the obvious and clear intention of the EDR

program is to exclude as arbitrable claims by the companies for injunctive relief to protect trade secrets and confidential information, as well as claims that are governed by special statutes-claims typically handled administratively and limited in their potential recoveries, i.e., specifically, worker's compensation benefits are governed by the Alabama Workers' Compensation Act, and claims seeking such benefits are typically tried before a circuit court judge without a jury, § 25-5-81, Ala. Code 1975; unemployment-compensation benefits are governed by the Alabama Unemployment Compensation Act, Ala. Code 1975, § 25-4-1 et seq. ; and an employee-welfare-benefit plan, pension plan, or retirement plan is governed by the Employee Retirement Income Security Act of 1974. The companies further argue that, even if the scope of the arbitration agreement that is part of the EDR program is not clear, any ambiguities therein as to its scope must be resolved in favor of arbitration. We agree.

In Koullas v. Ramsey, 683 So.2d 415, 416-17 (Ala. 1996), this Court stated:

"The strong federal policy favoring the enforceability of arbitration contracts is designed to place arbitration agreements on the same footing as any other contract. Allied-Bruce Terminix Companies v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995). Like any other contract, an arbitration agreement must be enforced in accordance with its terms; both federal and state courts have consistently recognized that the duty to arbitrate is a contractual obligation and that a party cannot be required to arbitrate any dispute that he or she has not agreed to arbitrate. AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) ; A.G. Edwards & Sons v. Clark, 558 So.2d 358 (Ala. 1990). Whether an arbitration agreement applies to a dispute between the parties is to be determined by the language of the contract entered into by the parties. Blount Int'l, Ltd. v. James River-Pennington, Inc., 618 So.2d 1344 (Ala. 1993).
"In the event of an ambiguity or uncertainty over the applicability of an arbitration clause, federal policy dictates that it be resolved in favor of arbitration. Allied-Bruce. However, this Court will not stretch the language of a contract to apply to matters that were not contemplated by the parties when they entered the contract. Seaboard Coast Line R.R. v. Trailer Train Co., 690 F.2d 1343 (11th Cir. 1982). To determine whether the arbitration clause applies to this dispute, we must consider the intent of the parties, as it is expressed in the language of the ... contract."

It is apparent from the language of the document establishing the EDR program that the intent of the program is to submit to arbitration those employment-related disputes the plaintiff would ordinarily be entitled to have resolved by a jury trial, i.e., disputes sounding in tort, as opposed to those disputes that are governed by specific statutes and are typically limited in their recovery. In the case at hand, it is well settled that although a retaliatory-discharge claim brought pursuant to § 25-5-11.1 arises out of a worker's compensation factual setting, the claim is nevertheless a tort action and is governed by the general rules of tort law. Jackson Cty. Hosp. v. Alabama Hosp. Ass'n Trust, 619 So.2d 1369 (Ala. 1993). In Jackson County Hospital, this Court explained the relationship between a retaliatory-discharge claim and a worker's compensation claim:

"[T]he [Alabama's Workers' Compensation] statute has no special provisions tying the [retaliatory-discharge] claim to damages relating to workers' compensation benefits; on the contrary, a plaintiff who brings a claim under § 25-5-11.1 can be awarded damages under the general law of torts. Caraway v. Franklin Ferguson Mfg. Co., 507 So.2d 925 (Ala. 1987). See, also, Continental Eagle Corp. v. Mokrzycki, 611 So.2d 313 (Ala. 1992) (mental anguish and loss of wages compensable 'under the general law of torts and, thus, under Ala. Code 1975, § 25-5-11.1.' 611 So.2d at 315 ). The award of such damages could entail proof of damage or harm and could entail jury trials, which are nonexistent in traditional workers' compensation actions....
"We note that claims that do 'arise under' workers' compensation laws are generally for occupational diseases and accidental injuries resulting from one's employment. The § 25-5-11.1 action for retaliatory discharge operates to protect an employee who files a traditional worker's compensation claim but, in so doing, does not itself become a 'worker's compensation' action. We therefore hold that the retaliatory discharge claim is in the nature of a traditional tort, albeit one that is applied in the specialized circumstances of a worker's compensation claim, and thus does not arise 'under' our workers' compensation law for purposes of the general liability insurance provision in this case."

619 So.2d at 1371.

Likewise here, claims that "relate to" worker's compensation laws "are generally for occupational diseases and accidental injuries resulting from one's employment," as opposed to claims alleging retaliatory discharge. The two claims-a workers' compensation claim and a tort claim-are mutually exclusive, in part, by virtue of their limited recoveries. See, e.g., Robert W. Lee & Steven W. Ford, Alabama Workers' Compensation Law and Handbook § 1.04 (2d ed. 2004)(internal citations omitted)("In a tort claim, all damages that can be proven can be awarded (i.e., pain and suffering, actual lost wages, lost earning capacity, punitive damages, loss of consortium, disfigurement, loss of enjoyment of life, medical bills, etc.). In a workers' compensation claim in Alabama, however, three benefits are available: (1) lifetime medical coverage for all reasonable and necessary medical expenses that are related to the on-the-job injury and provided by the authorized doctor; (2) compensation based upon injuries to scheduled members of the body, or upon loss of earning capacity; and (3) payment of vocational rehabilitation expenses, if appropriate.").

In Dillard's, Inc. v. Gallups, 58 So.3d 196, 199 (Ala. Civ. App. 2010), the Court of Civil Appeals addressed a similar argument by an employee regarding whether a retaliatory-discharge claim was arbitrable by virtue of the following description in the parties' agreement of the types of claims required to be arbitrated:

" 'Personal injuries except those covered by workers' compensation or those covered by an employee welfare benefit plan, pension plan or retirement plan which are subject to the Employee Retirement Income Security Act of 1974 (ERISA) other than claims for breach of fiduciary duty (which shall be arbitrable).
" 'Retaliation for filing a protected claim for benefits (such as workers' compensation) or exercising your protected rights under any statute.' "

The employee argued that the two provisions created an ambiguity because his retaliatory-discharge claim was arbitrable under the second provision, yet excluded under the first provision. The employee specifically argued that the retaliatory-discharge claim was excluded under the first provision because, according to him, the claim arose under the Alabama Workers' Compensation Act. Relying, in part, on this Court's decision in Jackson County Hospital, the Court of Civil Appeals rejected the employee's argument:

"Our supreme court has determined that, although a retaliatory-discharge action 'operates to protect an employee who files a traditional workers' compensation claim ..., [it] does not itself become a "workers' compensation" action.' Jackson County Hosp., 619 So.2d at 1371. The issue in Jackson County Hospital was whether the Alabama Hospital Association Trust ('the Trust') was required to defend Jackson County Hospital ('the Hospital') against a retaliatory-discharge claim brought against the Hospital. Id. at 1370. Although the opinion does not make it clear, the agreement between the Trust and the Hospital must have excluded workers' compensation claims from those claims the Trust was required to defend. Id. at 1370-71....
"....
"... Based on ... Jackson County Hospital, therefore, we hold that the trial court erred in concluding that [the employee's] retaliatory-discharge claim could not be arbitrated because it fell under the first of the two relevant above-quoted provisions in the [agreement]. A retaliatory-discharge claim does not arise under the Workers' Compensation Act such that it falls within the exclusion stated in the [agreement] for '[p]ersonal injuries ... covered by workers' compensation.' "

58 So.3d at 201-04. See also Gibson v. Staffco, L.L.C., 63 So.3d 1272, 1274 (Ala. Civ. App. 2010) ("Recently, this court [in Dillard's, Inc. v. Gallups ] held that, in the context of the arbitrability of claims, a claim of retaliatory discharge does not fit within a contractual exclusion from arbitration for workers' compensation claims.").

Based on the foregoing analysis, we conclude that the trial court erred in denying the companies' motion to compel arbitration of Fikes's retaliatory-discharge claim. When the language of the document establishing the EDR program is viewed as a whole, it is apparent that the intent of the program is to include as arbitrable those employment-related disputes the employee would be entitled to have resolved by a jury trial, as opposed to those disputes that are governed by special statutes and limited in their potential recovery-such as claims arising under a workers' compensation act. Stated differently, when viewed in its proper context, a retaliatory-discharge claim asserted by an employee participating in the EDR program is not "related to" disputes concerning workers' compensation laws, which are governed solely by the workers' compensation act, and, thus, is governed by the general rules of tort law. Even assuming, arguendo, that an uncertainty or a latent ambiguity exists in the language of the document establishing the EDR program concerning covered and noncovered disputes, it is well settled that federal policy "dictates that [any uncertainty or ambiguity] be resolved in favor of arbitration." Koullas, 683 So.2d at 417. "[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).

Conclusion

Fikes has failed to demonstrate that her retaliatory-discharge claim is not covered by the EDR program. Accordingly, we reverse the trial court's order denying the companies' motion to compel arbitration of that claim and remand this case to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

Murdock and Shaw, JJ., concur in the result.

      On January 27, 2017, this Court entered an order denying the companies' motion to stay the proceedings below in their entirety pending this appeal.


author: BRYAN, Justice.

text:
    Lamar RAGLAND v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    1160140
    Supreme Court of Alabama.
    May 19, 2017
    Myron K. Allenstein and Rose Marie Allenstein of Allenstein & Allenstein, LLC, Gadsden, for appellant.
    Bert S. Nettles, C. Dennis Hughes, and Tracy T. Miller of Hand Arendall LLC, Birmingham, for appellee.
   BRYAN, Justice.

Lamar Ragland appeals the dismissal of his bad-faith claim against State Farm Mutual Automobile Insurance Company. For the reasons set forth herein, we dismiss the appeal.

Procedural History

On July 21, 2016, Ragland filed a complaint in the Etowah Circuit Court ("the circuit court") seeking punitive damages from State Farm based on State Farm's alleged bad-faith failure to pay and related failure to subject his claim for underinsured-motorist ("UIM") benefits to a cognitive review. In his complaint, Ragland alleged that he had an automobile-liability policy with State Farm that included UIM benefits; that he had been injured in an automobile accident in January 2012 that was caused by Joshua Clayton Baker's negligence and wantonness; that he had incurred damages "in a determinable amount"; that Ragland had "settled his claim with [Baker], who paid close to policy limits"; that Baker was underinsured; that Ragland was entitled to UIM benefits from State Farm "in the same amount that [Ragland] would be entitled to from [Baker]"; that counsel for State Farm had admitted in a telephone conversation on July 21, 2014, that coverage existed; and that, after almost two years, State Farm had not paid any UIM benefits and had not offered a reasonable amount to settle the claim.

On August 25, 2016, State Farm filed a motion to dismiss Ragland's complaint without prejudice, pursuant to Rule 12(b)(1) and 12(b)(6), Ala. R. Civ. P.; it further alleged that the complaint was due to be dismissed based on the doctrine of collateral estoppel. State Farm alleged that Ragland had filed a separate civil action in the circuit court on May 30, 2014, which was assigned case no. CV-2014-9000484 ("Ragland I"); that Ragland's complaint in Ragland I contained one count against State Farm seeking to recover UIM benefits from State Farm resulting from the January 2012 automobile accident involving Baker, an allegedly underinsured motorist; that Ragland sought an undetermined and unliquidated amount of damages in that action and a judgment against State Farm up to the limits of his policy with State Farm; that Ragland had filed an amended complaint in Ragland I on April 8, 2016, reasserting his claim for UIM benefits and had added a bad-faith claim against State Farm for refusing to pay the same UIM benefits that were at issue and were sought to be determined in that case; that State Farm had filed a motion to dismiss the amended complaint in Ragland I as "procedurally improper, or, in the alternative, to dismiss the amended complaint without prejudice for lack of subject-matter jurisdiction"; that the circuit court had dismissed the newly asserted bad-faith claim in the amended complaint in Ragland I without prejudice on May 4, 2016, leaving in place the original complaint; and that a trial in Ragland I on Ragland's claim for UIM benefits was still pending.

State Farm argued that Ragland had refiled on July 21, 2016, as a separate action, the same bad-faith claim against State Farm the circuit court had dismissed on May 4, 2016, in Ragland I. State Farm argued that the complaint Ragland filed on July 21, 2016, was due to be dismissed for lack of subject-matter jurisdiction or, alternatively, for failure to state a claim upon which relief could be granted, because, it said, the bad-faith claim was premature in light of the fact that there had been no determination of liability on the part of the allegedly underinsured motorist. Thus, it argued, because there had been no determination that Ragland was legally entitled to UIM benefits from State Farm, Ragland could not maintain a bad-faith claim against State Farm. See generally LeFevre v. Westberry, 590 So.2d 154, 158 (Ala. 1991) (" '[T]here can be no breach of an uninsured motorist contract, and therefore no bad faith, until the insured proves that he is legally entitled to recover.' " (quoting Quick v. State Farm Mut. Auto. Ins. Co., 429 So.2d 1033, 1035 (Ala. 1983) )).

Ragland's complaint filed on July 21, 2016, which was assigned case number CV-2016-900523, was transferred to the same circuit judge to whom Ragland I had been assigned, and the two actions were consolidated. After conducting a hearing, the circuit court, on October 5, 2016, entered an order dismissing, without prejudice, Ragland's complaint filed in case no. CV-2016-900523 without citing its reasons for doing so. Ragland timely appealed. Ragland's claim for UIM benefits is still pending in the circuit court.

On February 22, 2017, the clerk of the Supreme Court entered an order remanding this case to the circuit court for a determination as to whether an order pursuant to Rule 54(b), Ala. R. Civ. P., would be proper in light of this Court's decision in Hanner v. Metro Bank & Protective Life Insurance Co., 952 So.2d 1056, 1059 (Ala. 2006), which held that a judgment disposing of fewer than all aspects of a consolidated action is not final and appealable. On remand, the circuit court entered an order pursuant to Rule 54(b) certifying the October 5, 2016, order as a final judgment.

Analysis

State Farm moved this Court to dismiss Ragland's appeal as being from a nonfinal judgment. State Farm argued that the October 5, 2016, order dismissing Ragland's complaint without prejudice was not a final judgment that could support an appeal and, alternatively, that a Rule 54(b) certification of the order was improper. Generally speaking, an order dismissing a claim without prejudice will not support an appeal. See Palughi v. Dow, 659 So.2d 112, 113 (Ala. 1995) (holding that an order dismissing a complaint without prejudice was not a final judgment that would support an appeal). However, "exceptions" to that rule have been recognized. See, e.g., Hutchinson v. Miller, 962 So.2d 884 (Ala. Civ. App. 2007) (concluding that an action dismissed without prejudice based on the lack of subject-matter jurisdiction "conclusively determined the issues before the court" and was sufficient to support an appeal); and Double B Country Store, LLC v. Alabama Dep't of Transp., 171 So.3d 28, 30-31 n. 1 (Ala. Civ. App. 2015) (concluding that an order dismissing the plaintiff's action without prejudice based on the lack of subject-matter jurisdiction was sufficient to support an appeal because the trial court conclusively determined that it did not have power to entertain the plaintiff's action).

In the present case, unlike in Hutchinson and Double B where the trial courts conclusively determined the issue of those courts' subject-matter jurisdiction to hear the plaintiffs' actions, the circuit court in the present case did not conclusively determine that Ragland could not bring his bad-faith claim in the circuit court. Indeed, both Ragland and State Farm agree that Ragland's bad-faith claim against State Farm may be brought in the circuit court-the parties simply disagree on the proper time to bring that claim. However, we need not decide whether the circuit court's order dismissing Ragland's bad-faith claim without prejudice had the requisite elements of finality to support an appeal because, even if we assume that it did, we agree that the October 5, 2016, order was improperly certified as a final judgment pursuant to Rule 54(b).

In Hanner v. Metro Bank & Protective Life Insurance Co., supra, this Court held that "a trial court must certify a judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., before a judgment on fewer than all the claims in a consolidated action can be appealed." 952 So.2d at 1061. In the present case, Ragland's bad-faith claim was consolidated with Ragland's pending UIM claim, but the circuit court "disposed of," at least for the time being, only Ragland's bad-faith claim. Thus, without an order certifying the October 5, 2016, order as final pursuant to Rule 54(b), Ragland's appeal would have been dismissed. Hanner, 952 So.2d at 1062. Consistent with the procedure discussed in Hanner, we remanded the case " 'to the trial court for a determination as to whether it chooses to certify the order as final, pursuant to Rule 54(b), and, if it so chooses, to enter such an order and to supplement the record to reflect that certification.' " 952 So.2d at 1061-62 (quoting Foster v. Greer & Sons, Inc., 446 So.2d 605, 609 (Ala. 1984) ). As noted above, the circuit court certified its October 5, 2016, order as final pursuant to Rule 54(b).

Rule 54(b) provides:

"When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment."

Assuming that the circuit court's October 5, 2016, order is eligible for consideration as a final judgment that would support an appeal in its own right, we must still consider "whether the trial court exceeded its discretion in determining that there was no just reason for delay in the entry of the judgment." Lighting Fair, Inc. v. Rosenberg, 63 So.3d 1256, 1265 (Ala. 2010). State Farm argues that the circuit court exceeded its discretion in entering a Rule 54(b) certification of the October 5, 2016, order because, it says, the dismissal of Ragland's bad-faith claim is "inextricably intertwined" with Ragland's still pending UIM claim against State Farm. See Meeks v. Morrow, 151 So.3d 1069, 1074 (Ala. 2014) (" '[A] Rule 54(b) certification should not be entered if the issues in the claim being certified and a claim that will remain pending in the trial court " 'are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.' " ' " (quoting Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala. 2006) )). Additionally, State Farm contends that the Rule 54(b) certification was improper because the question whether the circuit court properly dismissed Ragland's bad-faith claim could become moot depending on the outcome of the still pending UIM claim.

In Lighting Fair, supra, the trial court entered an order disposing of fewer than all the claims pending and certified the adjudication of those claims as final pursuant to Rule 54(b). On appeal, this Court noted the possibility that the claims and issues before the Court on appeal could be rendered moot by the adjudication of the claims that remained pending in the trial court. The Court then noted:

"[T]he United States Courts of Appeals for the Seventh and First Circuits have specifically considered mootness in determining whether there is no just reason for delay in the entry of a judgment under Rule 54(b), Fed. R. Civ. P. See, e.g., Lottie v. West American Ins. Co., 408 F.3d 935, 940 (7th Cir. 2005) ('[W]e might never have to consider at all the bad faith and race discrimination claims if the contract claim is resolved in favor of West American. There would be no reason to consider whether the insurer's breach was so egregious that it amounted to bad faith if there was no breach. Likewise, there would be no reason to consider whether West American breached the contract on account of race if West American did not in fact breach the contract.'); Horn v. Transcon Lines, Inc., 898 F.2d 589, 592 (7th Cir. 1990) ('The possibility that developments in the litigation may moot a claim suggests that appellate resolution be deferred.'); Spiegel v. Trustees of Tufts College, 843 F.2d 38, 44-45 (1st Cir. 1988) ('Should Spiegel prevail on Count IV-and we intimate no view of the matter-she might well have her tenure, her monetary balm, and payment for her litigation expenses. The first three statements of claim would be largely (if not entirely) mooted and the need for appellate review would vanish. Appellate courts, understandably, have treated such a possibility as a major negative in the Rule 54(b) equation.')."

Lighting Fair, 63 So.3d at 1264-65. The Court in Lighting Fair concluded that the trial court exceeded its discretion in finding that there was no just reason for delay in certifying as final any claim that could be rendered moot upon final adjudication of the claims still pending in the trial court. Thus, the appeal challenging the judgment on those claims was dismissed as one taken from a nonfinal judgment.

In the present case, it was undisputed below that the viability of Ragland's bad-faith claim was entirely dependent on the success of his still pending UIM claim. At the hearing on State Farm's motion to dismiss, counsel for Ragland stated: "If we lose our U[I]M case, we'll gladly dismiss the bad faith case. So I acknowledge you can't have bad faith if you don't have a contract claim." Ragland's counsel is correct. In order to prevail on a bad-faith claim against an insurance company, a plaintiff must prove, among other things, the existence of "an insurance contract between the parties and a breach thereof by the defendant." National Sec. Fire & Cas. Co. v. Bowen, 417 So.2d 179, 183 (Ala. 1982). See also State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 318 (Ala. 1999) (holding that Alabama law "limit[ed] bad-faith liability to those cases in which the insured is entitled to benefits under the policy"). Ragland's claim for UIM benefits under his policy with State Farm is still pending, and this Court is not privy to any information from that case regarding the basis for State Farm's challenge to Ragland's claim that he is entitled to UIM benefits pursuant to his insurance contract with State Farm. However, it is undisputed that, in the event that Ragland is not successful in his bid to recover UIM benefits from State Farm in that pending action, Ragland cannot bring a bad-faith claim against State Farm, either for failing to pay benefits under the contract or for failing to subject his claim to a cognitive evaluation or review. See Bowen and Slade, supra. Because it is undisputed that Ragland's bad-faith claim could be rendered moot if State Farm prevails in the pending UIM case between the parties, we conclude that the circuit court exceeded its discretion in concluding that there was no just reason for delay in the entry of a final judgment and by certifying its October 5, 2016, order as final pursuant to Rule 54(b). Accordingly, Ragland's appeal is due to be dismissed as taken from a nonfinal judgment. See Lighting Fair, supra.

Conclusion

The appeal is dismissed as being from a nonfinal judgment.

APPEAL DISMISSED.

Bolin, Parker, and Main, JJ., concur.

Murdock, J., concurs in the result.

      If an order does not have the requisite elements of finality in its own right, notwithstanding the fact that additional claims remain pending in the trial court, a Rule 54(b) certification, in and of itself, will not make the order final and appealable. See, e.g., Haynes v. Alfa Fin. Corp., 730 So.2d 178, 181 (Ala. 1999) ("[F]or a Rule 54(b) certification of finality to be effective, it must fully adjudicate at least one claim or fully dispose of the claims as they relate to at least one party.").

      In Palughi, the Court stated:
      "This Court has held that the words 'without prejudice,' when used in an order, 'mean that there is no decision of the controversy on its merits, and [that an order containing those words] leaves the whole subject in litigation as much open to another suit as if no suit had ever been brought.' Vacalis v. Lowry, 279 Ala. 264, 267, 184 So.2d 345, 347-48 (1966) ; see, also, Taylor v. Major Finance Co., 289 Ala. 458, 268 So.2d 738 (1972). An appeal will ordinarily lie only from a final judgment; that is, a judgment that conclusively determines the issues before the court and ascertains and declares the rights of the parties. Rule 54(b), A[la]. R. Civ. P...."
      659 So.2d at 113.