author: PARKER, Justice.

text:
    PHARMACISTS MUTUAL INSURANCE COMPANY v. ADVANCED SPECIALTY PHARMACY LLC et al.
    1140046
    Supreme Court of Alabama.
    November 18, 2016
    Rehearing Denied February 10, 2017
    John C.S, Pierce, Thomas A. Woodall, and Jaime O. Erdberg of Sirote & Per-mutt, P.C., Mobile, for the appellant.
    Samuel H. Franklin of Lightfoot, Franklin & White, LLC, Birmingham; and D. Leon Ashford, S. Shay Samples, and James R. Moncus III of Hare, Wynn, Newell & Newton, LLP, Birmingham, for appellees Joe Fancher, as parent and administrator of the estate of Darryl Joe Fancher, deceased; Gina Yeager; David Bernard Evans, as administrator of the estate of Columbus Evans, deceased; Shirley Haynesworth, as power of attorney for and on behalf on Todd Hammond; and Donald J. Mottern, as administrator of the estate of Lavonne S. Mottern, deceased;
    Gerald D. Colvin, Jr., of Bishop, Colvin, Johnson & Kent, LLP, Birmingham, for appellee David Bernard Evans, as administrator of the estate of Columbus Evans, deceased.
    Wesley L. Laird of Laird, Baker & Blackstock, LLC, Opp, for appellee Joe Fancher, as parent and administrator of the estate of Darryl Joe Fancher, deceased.
    William A. Scott of Scott, Sullivan, Streetman & Fox, Birmingham, for appel-lee Shirley Haynesworth, as power of attorney for and on behalf of Todd Hammond.
    Stephen R. Arnold of White, Arnold & Dowd PC, Birmingham, for appellee Don-ald J. Mottern, as administrator of the estate of Lavonne S. Mottern, deceased.
    Jason A. Shamblin and Leila H. Watson of Cory, Watson, Crowder & DeGaris, PC, Birmingham, for appellee Cora P. Sheppard, as personal representative of the estate of Lunna Powell, deceased.
    William L. Garrison, William L. Bross, and Gayle L. Douglas of Heninger Garrison Davis, LLC, Birmingham, for appel-lees Lyndal Robinson, as personal representative of the estate of Jewell Robinson, deceased; Joseph Scarborough; and Lelon Harris. ;
    Jason P. Knight of'Knight & Knight, LLC, Cullman; and Zebulon P. Little of Griffith, Little, Lowry LLC, Cullman, for appellee Steven Smith for the estate of Dale Tidwell.
    Roger D. Burton and Bradley R. Burton of The Burton Law Firm, P.C., Birmingham, for appellee Alice F. Nixon.
    Kenneth E. Riley of Farris, Riley & Pitt, LLP, Birmingham, for appellee Patricia Ann Mainor, as administratrix of the estate of Frances Bray Jones, deceased.
    Patrick M. Lavette of Davenport, La-vette & Cleckler, PC, Birmingham, for ap-pellee Chester Robinson.
    Dennis R. Bailey and Bethany L. Bolger of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amici curiae Property Casualty Insurers Association of America and The National Association of Mutual Insurance Companies, in support of the appellant.
   PARKER, Justice.

Advanced Specialty Pharmacy LLC, Meds I.V., Inc. (Advanced Specialty Pharmacy LLC and Meds I.V., Inc., are hereinafter referred to collectively as “Meds I.V,”), and several individual defendants were sued by individuals asserting various wrongful-death and personal-injury claims (“the claimants”). Meds I.V., a company that performs pharmaceutical services, is insured by Pharmacists Mutual Insurance Company (“Pharmacists Mutual”). Pharmacists Mutual filed an interpleader complaint in the action and submitted $4 million to the Jefferson Circuit Court (“the circuit court”), which Pharmacists Mutual alleged was the policy limits of Meds I.V.’s insurance policies with it, and requested that the circuit court divide the insurance moneys among the claimants. The claimants alleged that the policy limits of Meds I.V.’s insurance policies with Pharmacists Mutual were $7 million rather than $4 million. The parties filed cross-motions for a summary judgment, and the circuit court entered a summary judgment in favor of the claimants. We affirm in part, reverse in part, and remand.

Facts and Procedural History

During the time relevant to this case, Meds I.V. produced total parenteral nutrition (“TPN”) that was used by hospitals and administered to patients. TPN is “widely used in healthcare settings to deliver critical nutrients to patients unable to tolerate enteral feeding.” Neil Gupta et al., “Outbreak of Serratia marcescens Bloodstream Infections in Patients Receiving Parenteral Nutrition Prepared by a Compounding Pharmacy,” 59 Clinical Infectious Diseases 1 (May 13, 2014)(Exhibit B to the claimants’ motion for a summary judgment). TPN is nutrition “maintained entirely by central intravenous injection or other nongastrointestinal route.” Sted-man’s Medical Dictionary 1245 (27th ed. 2000). The “ ‘intravenous formulation is intended to provide all daily nutritional requirements, such as electrolytes, amino acids, dextrose, and lipids, and is considered to be one of the most complex pharmaceuticals to prepare because of the need for careful titration and combination of multiple components.’ ” The claimants’ motion for a summary judgment (quoting Gupta et al., “Outbreak of Serratia mar-cescens Bloodstream Infections,” 59 Clinical Infectious Diseases 1).

According to a memorandum from the Centers for Disease Control and Prevention (“the CDC”), attached as Exhibit A to the claimants’ motion for a summary judgment, at Meds I.V.’s facility, “TPN products were compounded by a pharmacy technician in consultation with a licensed pharmacist.” Most ingredients for TPN, including an amino-acid solution, were provided by a manufacturer in sterile, multi-dose vials. However, as a result of a shortage in the manufacturer’s supply of amino-acid solution, Meds I.V. began preparing its own amino-acid solution. According to the same memorandum, to prepare the amino-acid solution, Meds I.V. mixed amino-acid “[pjowders ... with sterile water in a 100-liter non-sterile container.” Then, pursuant to a prescription written by a physician, Meds I.V. compounded the amino-acid solution with other ingredients to produce the prescribed TPN. The affidavit of Donald Bendure, an independent consultant hired by the claimants whose expertise included matters pertaining to risk management, commercial insurance, and insurance litigation, described Meds I.V.’s process for producing TPN:

“[Tjhere were two separate and distinct operations by Meds I.V. that led to the final TPN product delivered from Meds I.V. to the end-user patients: 1) a bulk manufacturing process of [amino-acid solution] not subject to a prescription requirement ... which were [sic] then stored for future use as one ingredient ..., followed by 2) a series of subsequent compound drug preparations, each according to specific individual prescri-ber/patient/pharmacist requirements

(Emphasis omitted.) Meds I.V. received requests daily from physicians to fill prescriptions for TPN.

In October 2010, Pharmacists Mutual issued to Meds I.V. two insurance policies: (1) the Business Owners Special Policy (“the business-owners policy”) and (2) the Commercial Umbrella/Excess Liability Coverage Policy (“the excess policy”) (the business-owners policy and the excess policy are hereinafter referred to collectively as “the policies”). The policies provided coverage to Meds I.V. from October 28, 2010, until October 28, 2011, during which the events giving rise to this case occurred.

The business-owners policy has a “general aggregate limit” of $3 million, a “products/completed work hazard aggregate limit” of $2 million, and :an “each occurrence limit” of $1 million, as detailed on the declarations page of the policy. The excess policy provides additional coverage in conjunction with Pharmacists Mutual’s obligation to provide coverage under the business-owners policy. Under the excess policy, Pharmacists Mutual agreed to pay, “up to [its] limit, all sums in excess of ‘underlying insurances’ [the business-owners policy] for which [Meds I.V.] becomes legally obligated to pay as ‘damages’ to which this insurance applies.” The excess policy has an “each occurrence limit” of $1 million, a “general aggregate limit” of $1 million, a^d a “products/completed work hazard aggregate limit” of $1 million, as detailed on the declarations page of the policy.

The business-owners policy provides two main categories of coverage: “Property Coverages” and “Commercial Liability Coverages.” “Commercial Liability Coverages” include four coverage categories: “Coverage L—Bodily Injury and Property Damage Liability”; “Coverage M—Medical Payments”; “Coverage O—Fire Legal Liability”; and “Coverage P—Personal and Advertising Injury Liability.” It is undisputed that “Coverage L” of the business-owners policy, which covers bodily injury, is the only coverage applicable in this case.

In March 2011, the CDC was notified of five patients in a hospital located in Birmingham, Alabama, who had contracted bloodstream infections (“BSIs”) as a result of the presence in their bodies of bacteria Serratia marcescens (“S. marcescens”). According . to the memorandum from the CDC, S. marcescens is “an opportunistic pathogen of the respiratory tract, urinary tract, and wounds [that] has been implicated in outbreaks of [BSIs] associated with contamination of intravenous products.” After receiving notification that those patients had contracted BSIs, the CDC began an investigation and determined that the BSIs were caused by TPN produced by Meds I.V. that was .contaminated with S. marcescens. Later, the CDC discovered at least 19 patients in 6 Alabama hospitals who had contracted BSIs as a result of contaminated TPN produced by Meds I.V. between January 2011 and March 2011; of those patients, 17 tested positive for the presence of S. marcescens. Nine deaths occurred as a result.

Concerning the cause of the contamination of the TPN that resulted in the BSIs in the claimants or those whom the claimants represent, Don McGuire, general counsel for Pharmacists Mutual, stated in an e-mail to Pharmacists Mutual’s reinsurer that one “pharmacy technician” at Meds I.V. had indicated that there were “a number of procedure violátions that could have resulted in a contaminated solution” of the TPN, and that “[o]ne important lapse was that ... on at least 3 occasions, bags were not quarantined and tested prior to 'their being used in compounding patient orders.” McGuire further explained that “[i]t is difficult to point to one piece of faulty equipment, for' example, as the sole cause of these claims,” given “the number of breaches allegedly committed by” Meds I.V.

Pharmacists Mutual’s outside counsel, Michael Ryan, reached a similar conclusion, as illustrated in the following excerpt from a letter he wrote to McGuire:

“The information provided by defense counsel [for Meds I.V.] ■... suggests that -there may be a number of different, independent violations of the standard of care which caused the contamination, including:
“Using non-sterile barrel;
“Using distilled water instead of sterile water to compound TPN;
“Failing to put finished bags of TPN through the quarantine process;
“Diluting amino acid solution with distilled water to make it go further;
“Using filters that were overworked or possibly dysfunctional; and
“Failing to respond to amino acid that was not the proper color and was too dark.”-

According to Ryan, there were “a number of independent - acts[,] each one of which could constitute a violation of [the] standard of care and each one of which could have caused the contamination,” and, for that reason, he stated, “[w]e are not ,., dealing with a single act or omission that affects multiple prescriptions” but, “[instead, we have multiple acts or omissions that appear to have affected multiple prescriptions.”

Through its investigation, the CDC concluded that “the tap water or the amino acid powder may have been the likely source for introduction, and subsequent contamination, of the TPN' products.” Moreover, the CDC identified the following deviations by Meds I.V. from the United States Pharmacopeia guidelines that likely contributed to the contamination of the TPN:

“Excessive particulate matter in the pre-fíltered amino acid solution interrupted flow across the filter membrane and likely interfered with the efficiency of the filter.
“Replacement of the filter caused a break in the system and served as a potential source for the contamination of the laboratory hood and solutions 'downstream of the filter.
“Storage of the mixed amino acid powders in-sterile water 1-2 days prior to filtration on some occasions may have contributed to overgrowth of bacteria and generation of bacterial endotoxins.
“Sampling of a small volumes (<25mL) of the lOOL-amino acid solution was likely insufficient to detect bacterial growth on sterility testing.”

In 2011, the claimants filed wrongful-death actions -and personal-injuries claims against Meds I.V,, among others, to recover damages for, the bodily injuries and deaths allegedly suffered as a result of the RSIs, which were caused by the contaminated TPN produced by Sleds I.V,

On May 10, 2012, Pharmacists Mutual filed a “complaint in interpleader” in the action in the circuit court and sought a discharge from its indemnity obligations under the policies by depositing $4 million with the clerk of the circuit court. Pharmacists Mutual alleged that the $4 million represented “the full amount of primary liability insurance coverage.and excess/umbrella insurance coverage” available under the policies. The $4 million was based solely on the general aggregate limits of the policies • ($3 million under the business-owners policy -and $1 million under the excess policy), without regard to the products/completed-work-hazard aggregate limits. Pharmacists Mutual requested immediate discharge from all liability on the underlying claims subsequent to its deposit of $4 million with the circuit court clerk.

On April 19, 2013, the claimants filed amended answers to Pharmacists Mutual’s complaint in interpleader ■ and counterclaims, which sought judgments -declaring the coverage under the policies. The claimants argued that their claims against Meds I.V. included both professional negligence and products liability. Thus, the claimants alleged that—in addition to the $4 million general aggregate limits ($3 million under the business-owners policy and $1 million under the excess policy) applicable to the professional-negligence claims—the products/eompleted-work-hazard aggregate limits of $2 million under the business-owners policy and $1 million under the excess policy should apply based on the claimants’ products-liability claims. Thus, the claimants sought a total of $7 million, representing “the sum of the two aggregate limits listed on the Declaration Sheets”—$4 million for the professional-negligence claims and $3 million for the products-liability claims.

On November 6, 2013, the claimants filed a motion for an order of disbursement of the $4 million. The claimants also asked that-the circuit court retain jurisdiction to determine the amount of additional insurance coverage, if any, available. The circuit court - ordered the disbursement, as follows: • -

“There being no dispute about the fact that [Pharmacists Mutual] is obligated to pay at least $4 million in coverage ... the [circuit court] is hereby directing the Clerk to disburse the approximately $4 million that is not in dispute. ... The [circuit court] retains jurisdiction to adjudicate the issue of whether [Pharmacists Mutual’s] liability limits exceed the admitted $4 million, and a separate order addresses the procedure for adjudicating that remaining issue.”-

The parties, later filed cross-motions for a summary judgment. On August 26, 2014, the circuit court granted the • claimants’ summary-judgment motion and denied Pharmacists Mutual’s motion. In its summary-judgment order, the circuit court determined that

“the 'Serratia marcescens likely- reached the claimants and their decedents because of (1) multiple contaminations during the manufacturing by Meds I.V. of an amino acid solution, which was produced without-a physician’s prescription or involvement and, among other ingredients, was-ultimately used by Meds IV. as a component of the compound TPN; and (2) multiple contaminations, separ rate and distinct from.those contamina-tions that occurred during the manufacturing of the amino acid solution, during the compounding of the TPN by Meds I.V. pursuant to physicians’ prescriptions.”

The circuit court concluded:

“1, Pursuant to the [business-owners policy], Pharmacists -Mutual owes Meds I.V. the following in indemnity obligations: -
“a. As acknowledged-- by -Pharmacists, Mutual, Pharmacists Mutual owes $3 million in indemnity-to Meds I.V. as a result of the ‘bodily injuries,’ suffered by .the claimants and their decedents, that were caused by the multiple ‘occurrences’ associated with the ‘pharmacy, services’ at Meds I.V.;
“b. Pharmacists Mutual owes $2 million in indemnity to Meds I.V. as a result of the ‘bodily injuries,’ suffered by the claimants and their-- decedents, that were caused by the multiple ‘occurrences’—of which there were, at least, three ‘occurrences’ distinct from the ‘occurrences’ that happened during the ‘compounding' of the TPN— associated with the ‘manufacturing' activities at Meds I.V.; and
“c. Pharmacists Mutual’s indemnity-obligations to Meds I.V. under the general aggregate.limit and the products/completed work hazard aggregate limit are not mutually exclusive and, as applied to these circumstances, must be aggregated for purposes of indemnifying Meds I.V. as a result of the ‘bodily injuries’ suffered by the claimants and their decedents. Accordingly, there is $5 million in coverage available to the claimants under the [business-owners policy].
“2. Pursuant to the excess policy, Pharmacists Mutual owes Meds I.V. the following in indemnity obligations:
“a. As acknowledged by Pharmacists Mutual, Pharmacists Mutual owes $1 million in indemnity to Meds I.V. as a result of the ‘bodily injuries,’ suffered by the claimants and their decedents, that were caused by the multiple ‘occurrences’ associated with the ‘pharmacy services’ at Meds I.V.;
“b. Pharmacists Mutual owes $1 million in indemnity to Meds I.V.'as a result of the ‘bodily injuries,’ suffered by the claimants and their decedents, that were caused by the multiple ‘occurrence’—of which there were, at least, three ‘occurrences’ distinct from the ‘occurrences’ that happened during the ‘compounding' of the TPN— associated with, the ‘manufacturing’ activities at Meds I.V.; and
“c. Pharmacists Mutual’s indemnity obligations to Meds I.V. under the general aggregate limit and the products/completed work aggregate limit are not mutually exclusive and, as applied to these circumstances, must be aggregated for purposes of indemnifying Meds I.V. as a result of the ‘bodily injuries’ suffered by the claimants and their decedents. Accordingly, there is $2 million in coverage available to the claimants under the excess policy.
“Finally, Pharmacists Mutual has already paid the sum of $4 million into court, and that $4 million has been disbursed to the claimants in accordance with the procedures previously approved by the court and the parties. In order to be discharged from the indemnity obligations under the [policies], Pharmacists Mutual is ordered to pay into court an additional sum of $3 million, which shall then be disbursed ... to the claimants in accordance with the same procedures previously approved by the court and the parties and used to disburse the initial $4 million.”

Pharmacists Mutual appealed.

Standard of Review

“Our standard of review for a summary judgment is as follows:

“ ‘We review the trial court’s grant or denial of a summary-judgment motion de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala. 2006). Once the summary-judgment movant shows there is no genuine issue of material fact, the non-movant must then present substantial evidence creating a genuine issue of material fact. Id. “We review the evidence in a light most favorable to the nonmovant.” 943 So.2d at 795. We review questions of law de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala. 2006).’ ”

Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 793 (Ala. 2007) (quoting Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala. 2006)). “Additionally, ‘[w]hen a circuit court interprets an insurance policy as a matter of law, that interpretation is subject to, de novo review.’ Hartford Cas. Ins. Co. v. Merchants & Farmers Bank, 928 So.2d 1006, 1009 (Ala. 2005).” Ex parte State Farm Mut. Auto. Ins. Co., 118 So.3d 699, 704 (Ala. 2012).

Discussion

The issues before this Court concern the interpretation of the policies. Concerning the interpretation of an insurance policy, this Court has stated:

“ ‘When analyzing an insurance policy, a court, gives words used in the policy their common, everyday meaning and interprets them ás a reasonable person in the insured’s position would have understood them. Western World Ins. Co. v. City of Tuscumbia, 612 So.2d 1159 (Ala. 1992); St. Paul Fire & Marine Ins. Co. v. Edge Mem’l Hosp., 584 So.2d 1316 (Ala. 1991). If, under this standard, they are reasonably certain in their meaning, they are not ambiguous as a matter of law and the rule of construction in favor of the insured does not apply. Bituminous Cas. Corp. v. Harris, 372 So.2d 342 (Ala. Civ. App. 1979). Only in cases of genuine ambiguity or inconsistency is it proper to resort to rules of construction: Canal Ins. Co. v. Old Republic Ins. Co., 718 So.2d 8 (Ala. 1998). A policy is not made ambiguous by the fact that the parties interpret the policy differently or disagree as to the meaning of a written provision in a contract. Watkins v. United States Fid. & Guar. Co., 656 So.2d 337 (Ala. 1994). A court must not rewrite a policy so as to include or exclude coverage that was not intended. Upton v. Mississippi Valley Title Ins. Co., 469 So.2d 548 (Ala. 1985).’
“B.D.B. v. State Farm Mut. Auto. Ins. Co., 814 So.2d 877, 879-80 (Ala. Civ. App. 2001). However, if a provision in an insurance policy is found to be genuinely ambiguous, ‘policies of insurance should be construed liberally in respeet to persons insured and strictly with respect to the insurer.’ Crossett v. St. Louis Fire & Marine Ins. Co., 289 Ala. 598, 603, 269 So.2d 869, 873 (1972).”

State Farm Mut. Auto. Ins. Co. v. Brown, 26 So.3d 1167, 1169-70 (Ala. 2009).

A basic overview of the business-owners policy is necessary to understand the parties’ arguments. The business-owners policy states that Coverage L “applies only to ‘bodily injury’ ... caused by an ‘occurrence.’ ” An “occurrence” is defined in the business-owners policy as “an accident and includes continuous or repeated exposure to similar conditions.” As stated above, the parties agree that numerous occurrences caused the claimants to suffer bodily injuries, to which Coverage L applies.

Coverage L of the business-owners policy states that “[t]he amount [Pharmacists Mutual] will pay for ‘damages’ is limited as described under How Much We Pay.” “Damages” is defined in the business-owners policy as “compensation in the form of money for a person who claims to have suffered an injury.” The “How Much We Pay” section of the business-owners policy, which was amended by the “pharmacy services professional liability coverage” endorsement, states, in pertinent part:

“How Much We Pay ...
“1. The ‘limits’ shown on the ‘declarations’ and subject to the following conditions, are the most [Pharmacists Mutual will] pay regardless of the number of:
“a) ‘insureds’ under the Commercial Liability Coverages;
“b) persons or organizations who sustain injury or damage; or
“c) claims made or ‘suits’ brought; or
“d) policy periods involved.
“[Pharmacists Mutual’s] total liability under Commercial Liability Coverages for damages resulting from one loss will not exceed the ‘limits’’ shown on the declarations page. All ‘bodily injury'.., resulting from one ‘occurrence’ ... is considered the result of one loss.
“2. The General Aggregate Limit is the most [Pharmacists Mutual] will pay for the sum of:
“a. all ‘damages’ under Coverage L, except ‘damages’ due to ‘bodily injury’ ... included in the ‘products/completed work hazard’;
“3. The • Products/Completed Work. Hazard Aggregate Limit is the most [Pharmacists Mutual] will pay for ‘damages’ due to ‘bodily injury’ ... included in the ‘products/completed work hazard.’
“8. The General Aggregate- Limit and the Products/Completed Work Hazard Aggregate Limit apply separately to, each consecutive 12-month period beginning with the inception date of the Commercial Liability Coverage shown on the ‘declarations.’ ”

In order to determine which limit applies to Pharmacists Mutual’s liability under Coverage L, it is necessary to determine whether the damages claimed by the claimants are the result of bodily 'injury “included in the ‘products/completed work hazard.’ ”• The business-owners policy defines “products/completed work hazard” as follows: . ;

“17. ‘Products/completed work hazard’—
“a, ‘Products hazard’ means ‘bodily injury'.., arising out of ‘products’ after physical possession of the products has been-relinquished to others.
“The ‘bodily injury’ ,.. must occur away from premises [Meds I.V.] own[s] or rentfs] unless [Meds I.V.’s] business includes selling, handling, or distributing ‘products’ for consumption on premises owned by or rented to [Meds I.V.]; and
“b. ‘Completed work hazard’ means ‘bodily injury’ ... occurring away from premises [Meds I.V.] own[s] or rent[s] and arising out of ‘[Meds I.V.’s] work.’ ”

The term “products” is, defined as “goods or products manufactured, sold, handled, distributed, or disposed of by [Meds I.V.].”

In summary, ,in order for the products/completed-work-hazard aggregate limit to, apply to limit Pharmacists Mutual’s liability under Coverage L, there must be: (1) damages (2) based on a bodily injury and (3) the bodily injury must be “included in. the ‘products/completed work hazard.’ ” In order for a bodily injury to be “included in the ‘products/completed work hazard,’ ” that injury must be the result of either a “products hazard” or a “completed work hazard.” In the present case, the circuit court, determined that the claimants’ bodily injuries were caused by a “products hazard.” Therefore, in order for the claimants’ bodily injuries to be considered “included in the ‘products/completed work hazard,’” their bodily injuries must (1) have arisen “out of ‘products’ after physical possession of the products has been relinquished to others” and (2) have been incurred “away from premises [Meds I.V.] own[s] or rent[s].” If it is demonstrated that the claimants’ bodily injuries fit within -this definition, then the products/completed-work-hazard aggregate limit applies to limit Pharmacists Mutual’s liability under Coverage L, If the claimants’ bodily injuries do not fit within this definition, then the general aggregate limit applies to the liability of Pharmacists Mutual under Coverage L.

Based on this interpretation of the business-owners policy, it is evident that a bodily injury cannot both arise “out of ‘products’ after physical possession of the products has been relinquished to others” and be incurred “away from premises [Meds I.V.] own[s] or rent[s]” and, at the same time, not arise “out of ‘products’ after physical possession of the products has been relinquished to others” and be incurred “away from premises [Meds I.V.] own[s] or rent[s].” Under the definition of “products hazard,” why the product caused a bodily injury is inconsequential; it is only consequential that it did cause a bodily injury. Once it is determined that a bodily injury has been caused by a “products hazard,” the products/eompleted-work-hazard aggregate limit alone applies to limit Pharmacists Mutual’s liability for damages arising out of that bodily injury.

In the present case, it is undisputed that the claimants suffered bodily injuries. It is also undisputed that the claimants’ bodily injuries are not “included in the ‘products/completed work hazard.’” Pharmacists Mutual concedes this point. However, the circuit court determined that the claimants’ bodily injuries are, at the same time, both “included in the ‘products/completed work hazard’ and not “included in the ‘products/completed work hazard.’ ” The circuit court reached this conclusion by determining that the claimants’ bodily injuries were caused by multiple, separate, and distinct occurrences. Specifically, the circuit court held that “Pharmacists Mutual has admitted that ... the claimants’ ‘bodily injuries’ .,. were caused by ‘occurrences’ associated with Meds I.V.-’s .‘pharmacy services’—specifically, its ‘compounding’ of TPN.” On this basis, the circuit court concluded that the claimants’ bodily injuries are not “included in the ‘products/completed work hazard’ ” and, thus, that the general aggregate limit applied to Pharmacists Mutual’s liability under Coverage L. The circuit court also held that “there were, at least, three ‘occurrences’ within the meaning of the [policies] that happened during the ‘manufacturing’ of the amino acid solution by Meds I.V.,” and that “those ‘occurrences’ likely contributed to the bodily injuries suffered by the claimants and, in fact, were separate and distinct from the ‘occurrences’ that happened during the ‘compounding’ of the TPN.” The circuit court stated that “[tjhese distinct ‘occurrences’ resulted iri Meds I.V. ‘manufacturing’ defective ‘products’—specifically, multiple batches of amino acid solution contaminated with Serra-tia marcescens.” On this basis, the circuit ■ court concluded that the claimants’ bodily injuries—that is, the same bodily injuries the circuit court concluded are not “included in the ‘products/compl'eted work hazard,’ ” thus subjecting any damagés 'arising out of those bodily injuries to the general aggregate limit—are “included in the ‘products/completed work hazard/” and, thus, that the products/completed'-work-hazard aggregate limit applied to limit Pharmacists Mutual’s liability under Coverage L.

The circuit court’s conclusion is contrary to the plain language of the business-owners policy. Specifically, the plain language of the business-owners policy is clear that a bodily injury is either “included in the ‘products/completed work hazard,’ ” or it is not. A bodily injury cannot simultaneously be and not be “included in the ‘products/completed work hazard.’ ”

Pharmacists Mutual conceded, and the claimants agreed, that the claimants’ bodily injuries are not “included in the ‘products/completed work hazard.’ ” As a result, the circuit court held that Pharmacists Mutual’s liability for damages under Coverage L is limited by the general aggregate limit of $4 million. The circuit court then held, after adopting the parties’ position that the claimants’ bodily injuries are not “included in the ‘products/completed work hazard,’” that the claimants’ bodily injuries are also “included in the .‘products/completed work hazard.’” This holding is inconsistent. As Pharmacists Mutual argues in its brief before this Court, a bodily injury can be caused by only one occurrence. In other words, Pharmacists Mutual is essentially arguing that a bodily injury is either “included in the ‘products/completed work hazard’” or it is not. See Pharmacists Mutual’s brief, at pp. 17-22. For the reasons set forth above, we agree with Pharmacists Mutual that the plain language of the business-owners policy requires such a result. Accordingly, we hold that the circuit court erred in determining that the claimants’ bodily injuries were both “included in the ‘products/completed work hazard’” and, at the same time, not “included in the ‘products/completed work hazard.’ ”

Conclusion

Based on the foregoing, we affirm the summary judgment insofar as it held that the general aggregate limit applied to limit Pharmacists Mutual’s liability to $4 million. However, we reverse the circuit court’s judgment insofar as it held that the products/completed-work-hazard aggregate limit also applied to expand Pharmacists Mutual’s liability by $3 million to $7 million. We remand the case to the circuit court for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

Shaw, J., recuses himself.

      . This case was originally assigned to another Justice on this Court; it was reassigned to Justice Parker.

      . This appellee is also referred to in the record as Advance Specialty Pharmacy LLC.

      .The nature, of the relationship between Advanced Specialty Pharmacy LLC and Meds I,V„ Inc., is unclear from the record, although it is clear that the entities are related.

      . Enteral is defined as "[w]ithin, or by way of, the intestine or gastro-intestinal tract, especially as distinguished from parenteral.” Sted-man's Medical Dictionary 597 (27th ed. 2000).

      . What is not explicitly stated in the circuit court’s order is that the circuit court determined that each claimant’s bodily injuries were caused by two distinct occurrences. The circuit court concluded that the amino acid manufactured by Meds I.V. was contaminated, which it considered to be an "occurrence,” Based on that occurrence, the circuit court determined that the claimants’ bodily injuries arose from a “products hazard.” That is, the circuit court determined that the claimants suffered bodily injuries that arose out of a product (the circuit court held ‘that the amino-acid solution manufactured by Meds I.V. was a product) after physical possession of the product had been relinquished to the hospitals that administered the TPN. The circuit court then stated that "[t]he contaminated amino acid solution was then incorporated by Meds I.V,, along with other ingredients, to create TPN during the 'compounding' phase, which caused the contamination to reach the claimants and their decedents.” The circuit court considered the compounding of the TPN to be a separate and distinct occurrence. Based on that occurrence, the circuit court determined that the claimants’ bodily injuries the circuit court determined are included in the "products/completed work hazard” are also not included in the "products/completed work hazard.”

      . Pharmacists Mutual argued that the claimants’ bodily injuries were caused by "pharmacy services” provided by Meds I.V. Pharma- . cists Mutual argued that bodily injuries caused by "pharmacy services” are necessarily not "included in the ‘products/completed work hazard.’ ” Pharmacists Mutual does not direct this Court's attention to any language in the policies requiring such a result, and nothing in this opinion should be read as deciding that issue.


source: Caselaw Access Project

author: BOLIN, Justice.

license: Public Domain

text:
    Melvin HASTING v. Christopher ROBERTS, individually and in his capacity as the director of the Office of Indigent Defense Services
    1150813
    Supreme Court of Alabama.
    February 17, 2017
    Melvin Hasting, Cullman, for appellant.
    Luther Strange, atty. gen., and J. Matt Bledsoe, asst. atty. gen, for appellee.
   BOLIN, Justice.

Melvin Hasting appeals from the trial court’s order dismissing his claim seeking injunctive relief against Christopher Roberts, individually and in his official capacity as the director of the Office of Indigent Defense Services (“OIDS”).

Facts and Procedural History

Section 41-4-321, Ala. Code 1975, created OIDS within the Department of Finance. OIDS is tasked with “developing] and improv[ing] programs to provide legal representation to indigents” in the State. § 41-4-322(a), Ala. Code 1975. OIDS has to have a director who is tasked with “developing] standards governing the provision of defense services,” which standards shall include “prescribing minimum experience, training, and other qualifications for appointed counsel [or] contract counsel.” § 41-4-322(c), Ala. Code 1975. Roberts was appointed director of OIDS in April 2015.

Section 15-12-4, Ala. Code 1975, provides for the establishment in each judicial circuit in the State of a voluntary indigent-defense advisory board (“the advisory board”). The advisory board shall consist of five members who are residents of the judicial circuit; those five members shall include the presiding circuit judge as the chair, the president of the local circuit bar association, and three attorneys who are selected by the bar commissioner for the circuit. § 15-12-4(b), Ala. Code 1975. The advisory board in each circuit is required by statute to determine the method for delivering indigent-defense services in the circuit and shall certify its system to the Indigent Defense Review Panel (“the review panel”) on or before October 1 of each year. § 15-12-4(e), Ala. Code 1975; § 41-4-322(d), Ala. Code 1975. If the advisory board chooses to use a contract-counsel system for indigent defense, the advisory board “shall follow the procedures of the director for requesting and accepting applications or proposals for such, contracts and shall make a recommendation for contract counsel to the director.” § 15-12-26(b), Ala. Code 1975. The director may appeal the determination of the advisory board to the review panel, which “shall make a decision in a timely manner, which decision shall be deemed final.” § 15-12-4(e)(1), Ala. Code 1975. The review panel consists of five members who each serve a three-year term. Two members of the review panel are appointed by the president of the 'Alabama State Bar, one member is appointed by the president of the Alabama Circuit Judges Association, one member is appointed by the president of the District Judges Association, and one member is appointed by the president of the Alabama Lawyers Association. §. 41-4-324, Ala. Code 1975. ■

Por the fiscal years 2012-2013, 2013-2014, and 2014-2015, the advisory board in Cullman County chose the contract-counsel system as its method of providing indigent defense in that county and submitted recommendations to the director of OIDS of the attorneys it had determined should receive th'é contracts to provide the indigent defense. Hasting was one of the attorneys recommended by'the advisory-board to receive a felony indigent-defense contract for a shortened term in 2013 and for the fiscal years 2013-2014 and 2014-2015. OIDS accepted the advisory board’s recommendations and awarded Hasting an indigent-defense contract in each of those fiscal years.

For the fiscal year 2015-2016 the advisory board again determined that the contract-counsel system should be the method of providing indigent defense in Cullman County and submitted its recommendations to Roberts of the attorneys who should receive the indigent-defense contracts. The advisory board did not recommend Hasting as one of those attorneys who should receive an indigent-defense contract for fiscal year 2015-2016.

On September 1,- 2015, Hasting, sued Roberts, individually and in his official capacity, seeking certain injunctive and declaratory relief. Hasting, alleged, among other things, that Roberts, as the director of OIDS, was required to develop. standards governing the provision of indigent-defense services in Cullman County and that Roberts had failed to develop those standards; that the advisory'board was in violation of the law because,' Hasting said, its membership was not composed as mandated by statute; that the advisory board operated without “guidelines and criteria” for how it chose contract counsel; and that the advisory board recommends giving indigent-defense contracts to attorneys who have obvious conflicts of interest, including members of the advisory board ■ themselves,.

Hasting sought a judgment ■ declaring that the advisory board in Cullman County was operating outside the confines of the applicable statutes; that Roberts was required to dissolve the advisory board if he determined that its composition was unlawful; that Roberts was required to develop standards governing the provision of indigent-defense services in the circuits; that the advisory board was required to have procedures and criteria in place for recommending contract counsel given that the contract-counsel system was the ‘method chosen to provide indigent defense in Cullman County; and that the recommendations of the advisory board were not to be considered if it was determined that they were made unlawfully.

Hasting’s claim for injunctive relief sought to enjoin Roberts from accepting and approving the advisory board’s recommendations for the indigent-defense-service contracts for the fiscal year 2015-2016; from terminating preexisting indigent-defense contracts; and from implementing any indigent-defense method without first developing a procedures manual.

On September 9, 2015, the trial court entered an order setting Hasting’s request for a preliminary injunction for a hearing on October 1, 2015. On September 28, 2015, Roberts notified Judge Gregory Nicholas, the presiding judge of Cullman County and chair of the advisory'board, that it was his “intention pursuant to Alabama Code 11975,] Section 15—12—26[,] to not enter into any indigent defense service contracts” for the 2015-2016 fiscal year and that his decision was based on “pending litigation.” After Roberts notified Judge Nicholas of his intention not to enter into any indigent-defense contracts, indigent defense in Cullman County was provided by the appointment method. On September 29, 2015, both Hasting and Roberts jointly moved the trial court to cancel the hearing scheduled for October 1, 2015, on Hasting’s request for a preliminary injunction, stating that “both parties agree that said hearing is unnecessary at this time.”

In October 2015,- Roberts appealed to the review panel the advisory board’s recommendations for the 2015-2016. fiscal year. Roberts stated the-following as the basis for his appeal to the review panel:

“1. Currently two civil litigations have been commenced ■ and are pending regarding the composition, procedure, meetings and actions of the Indigent Advisory Board in the 32nd Judicial Circuit. .....
“2. Each action alleges inappropriate composition, procedure, meetings and actions on the part of the Indigent Defense Advisory Board for the 32nd Judicial Circuit.
“3. Of particular note, Alabama .Code .[1975,] Section 15—12—4[,] establishes the composition,, meetings, powers and duties of the Indigent Advisory Board. The code section sets forth that the presiding circuit judge shall serve as chair of the committee with members of said committee to include the local bar association president and three members.selected by the bar commissioner for that circuit.
“4. For the 32nd Judicial Circuit, the Presiding Judge, Gregory Nicholas, re-cused himself from- all board activities due to a potential conflict of interest. Further, it appears two members of the 2015 advisory board received contracts pursuant to the board’s actions. Information has also been provided that the local bar president did not .participate in the meeting and actions of the indigent defense advisory board. Thus, there exists a material issue as to whether the Indigent Defense Advisory Board meets the statutory requirements of Alabama Code [1975,] Section 41-4-322(d).”

On October 29, 2015, members of the advisory board filed with the review panel a ■response to Roberts’s appeal and/or a cross-appeal from Roberts’s decision to not follow the recommendations of the advisory board for the 2015-2016 fiscal year and to appeal those recommendations to the review panel. In their filing, the members of the advisory board denied the allegations contained in Roberts’s appeal to the review panel and requested that his appeal be denied and that the review panel reverse Roberts’s decision not to approve the advisory board’s recommendations.

While Roberts’s appeal and the advisory board’s cross-appeal were pending, OIDS promulgated rules and standards relative to the establishment' of the eontraet-coun-sel system of indigent defense, which became effective on January 4, 2016. On January 8, 2016, the review panel, following a hearing, entered an order denying Roberts’s appeal, stating, in part:

“After review of the evidence and testimony provided, it is the unanimous determination of the Panel that the process used by the local board of the 32nd Judicial Circuit' (Cullman County) in selecting the method of local delivery of services and in selecting the attorneys to whom contracts were awarded was exemplary. Therefore, the appeal of the Director is denied and the cross-appeal of the 32nd Judicial Circuit (Cullman County) local indigent defense advisory board as it relates to the reinstatement of the contract system is granted and should be reinstated immediately.”

Pursuant to the review panel’s final decision and subsequent to the rules and standards applicable tó the contract-counsel system becoming effective, the contract-counsel' system was reinstated in Cullman County in January 2016, and OIDS entered into indigent-defense contracts with the attorneys previously recommended by the advisory board for the 2015-2016 fiscal year.

On January 11, 2016, Hasting moved the trial court to reset the hearing on his request for a preliminary injunction that had been previously canceled' upon the joint motion of Hasting and Roberts following Roberts’s decision not to enter into indigent-defense contracts. The trial court granted the motion to reset the hearing for March 15, 2016. Hasting argued at the hearing that the indigent-defense contracts entered into in January 2016 were based on the recommendations made by the advisory board in October 2015, while, Hasting says, the advisory board was acting in contravention of the statute and without rules and standards in place relative to the establishment of the contract-counsel system of indigent defense. Roberts argued that Hasting had failed to show any irreparable harm because the indigent-defense contracts are entered into on a year-by-year basis, and there is no guarantee that an attorney who had received a contract in the prior year would receive one. Roberts also contended that the issue was moot because the contracts had been entered into and were then being paid.

On March 15, 2016, the trial court entered an order dismissing Hasting’s claim seeking to enjoin Roberts from approving the contract recommendations of the advisory board. On March 21, 2016, the trial court entered an order, pursuant to Rule 54(b), Ala. R. Civ. P., certifying as final its order dismissing Hasting’s claim for in-junctive relief. Hasting appeals. For the reasons stated, we dismiss the appeal.

Discussion

In South Alabama Gas District v. Knight, 138 So.3d 971, 974-76 (Ala. 2013), this Court stated:

“When an action becomes moot during its pendency, the court lacks power to further adjudicate the matter.
“ ‘ “The test for mootness is commonly stated as whether the court’s action on the merits would affect the rights of the parties.” Crawford v. State, 153 S.W.3d 497, 501 (Tex. App. 2004) (citing VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993)). “A case becomes moot if at any stage there ceases to be an actual controversy between the parties.” Id. (citing National Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999)).’
“Chapman v. Gooden, 974 So.2d 972, 983 (Ala. 2007) (first emphasis, added). See also Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (‘[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’).
“Events occurring subsequent to the entry or denial of an injunction in the trial court may properly be considered by this Court to determine whether a cause, justiciable at the time the injunction order is entered, has been rendered moot on appeal. ‘[I]t is the duty of an appellate court to consider lack of subject matter jurisdiction....’ Ex parte Smith, 438 So.2d 766, 768 (Ala. 1983). ‘[Jjusticiability is jurisdictional.’ Ex parte State ex rel. James, 711 So.2d 952, 960 n. 2 (Ala. 1998). A justiciable controversy is one that ‘is definite and concrete, touching the legal relations of the parties in adverse legal interest, and it must be a real and substantial controversy admitting of specific relief through a decree.’ Copeland v. Jefferson Cnty., 284 Ala. 558, 561, 226 So.2d 385, 387 (1969). A case lacking ripeness has yet to come into existence; a moot case has died. Between the two lies the realm of justiciability.- : See 13B Charles Alan Wright et al., Federal Practice and Procedure § 3533 (3d ed. 2008) (‘It is not enough that the initial requirements of standing and ripeness have been satisfied; ' the suit must remain alive throughout the course of litigation, to the moment of final appellate disposition.’).”

(Footnotes omitted.)

Hasting received an indigent-defense contract for a shortened term in 2013 and contracts for the fiscal years 2013-2014 and 2014-2015. The advisory board again determined that for the 2015-2016 fiscal year the contract-counsel system should be. the method of providing indigent defense in Cullman County and submitted to Roberts its recommendations of the attorneys to receive those indigent-defense contracts. Hasting was not on the recommended list to receive an indigent-defense contract for the fiscal year 2015-2016. Hasting then sued Roberts seeking to enjoin him from accepting and approving the advisory board’s recommendations for the indigent-defense-service contracts for the fiscal year 2015-2016. Based on the pending litigation and the allegations that the advisory board had acted outside the confines of the statute, Roberts chose not to accept the recommendations of the advisory board and appealed those recommendations to the review panel. Following a hearing, the review panel determined that the process used by the advisory board in selecting the method of local delivery of indigent services and in selecting the attorneys to whom contracts were awarded was “exemplary.” The review panel also ordered that the contract-counsel system be reinstated immediately for the 2015-2016 fiscal year. In January 2016, Roberts entered into the indigent-defense-contracts for the 2015-2016 fiscal year that had been recommended by the advisory board. Those indigent-defense contracts had expired at the beginning of the new fiscal year on October 1, 2016, because the statute requires the advisory board to make a new'recommendation to the director regarding the method of indigent defense each year on or before October 1. § 15—12— 4(e), Ala. Code 1975; § 41-4-322(d), Ala. Code 1975. Because a new fiscal year— 2016-2017—began on October 1, 2016, Hasting’s claim seeking to enjoin Roberts from accepting and approving the advisory board’s recommendations for the indigent-defense-service contracts for the fiscal year 2015-2016 is now moot, and'there is' no longer an actual controversy to be decided by this Court. Because there is' no longer a justiciable issue before this Court; the Court lacks subject-matter jurisdiction, arid the appeal must be dismissed. Knight, supra.

APPEAL DISMISSED;

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

      . On September 11, 2015, a second action filed by. another attorney arising from the advisory board's recommendation of contract counsel in Cullman County for the fiscal year . 2015-2016 was filed against Roberts and the members of the advisory board. That action asserted both tort claims and claims for in-junctive and' declaratoiy relief. That second action' was subsequently consolidated with Hasting’s action, but it is not the subject of this appeal. :


author: PER CURIAM. PITTMAN, Judge,

text:
    EX PARTE J.L.P. (In re J.S.W. v. J.L.P.)
    2150813
    Court of Civil Appeals of Alabama.
    February 3, 2017

      Josh M. O’Neal of Brock, O’Neal Attorneys, Cullman, for petitioner.
    Amy L. Herring, Huntsville, for respondent.
   PER CURIAM.

In 2009, J.S.W. (“the mother”) gave birth to C.M.P. (“the child”). Although the mother was not married when she gave birth to the child, it is undisputed that J.L.P. (“the father”) is the father of the child. In 2013, the State of Alabama, acting on behalf of the mother, filed a petition in the Cullman District Court seeking a judgment ordering the father to pay child support for the child. That child-support action (“the child-support action”) was docketed as case number CS-2013-900025, which made it a juvenile-court child-support action. See, e.g., J.J. v. R.R., 159 So.3d 84, 85 (Ala. Civ. App. 2014) (“This court has recognized that ‘CS’ actions are juvenile-court actions and are to be governed by the Rules of Juvenile Procedure.”). Thus, although the pleadings and orders filed in the child-support action were styled “In the District Court of Cull-man County, Alabama,” the Cullman District Court was actually sitting as the Cull-man Juvenile Court (“the juvenile court”) in that action.

Initially, the father was represented by counsel in the child-support action; however, his counsel had withdrawn before the juvenile court held a hearing regarding a discovery dispute on October 30, 2013. When the parties appeared for that hearing, the mother, who was represented by counsel, and the father, who was acting pro se, engaged in settlement negotiations. Those negotiations resulted in the parties agreeing that the father would consent to the termination of his parental-rights and that the mother would waive the father’s obligation to pay child support. The parties reported their agreement to the juvenile court, and, on November 6, 2013, the juvenile court, without receiving any evidence indicating that grounds for terminating the father’s parental rights existed, entered a judgment (“the TPR judgment”) terminating the father’s parental rights, awarding sole custody of the child to the mother, and providing that the father was not obligated to pay child support. The father did not appeal from the TPR judgment.

In February 2015, the father, acting through counsel, filed a motion under Rule 60(b)(4), Ala. R. Civ. P. (“the February 2015 Rule 60(b)(4) motion”), in the juvenile court. That motion asserted that the TPR judgment was void because, the father said, he had not been represented by counsel at the October 30, 2013, hearing; he had not been informed of his right to appointed counsel in a termination-of-parental-rights proceeding at the October 30, 2013, hearing; and his due-process rights had been violated because, he said, he had not been afforded the procedural rights to which a parent is entitled in a termination-of-parental-rights proceeding. On April 29, 2015, the juvenile court denied the February 2015 Rule 60(b)(4) motion.

On May 5, 2015, the father filed a motion titled “Motion to Reconsider” in which he asserted for the first time that the juvenile court had lacked subject-matter jurisdiction to terminate his parental rights. Insofar as it asserted that new ground for relief from the TPR judgment, the May 5, 2015, motion to reconsider was actually a new Rule 60(b)(4) motion (“the May 2015 Rule 60(b)(4) motion”), rather than a successive Rule 60(b)(4) motion, in relation to the February 2015 Rule 60(b)(4) motion. See, e.g., J.B.M. v. J.C.M., 142 So.3d 676, 682 (Ala. Civ. App. 2013) (“The general rule against successive Rule 60(b)[, Ala. R. Civ. P.,] motions does not apply when a subsequent Rule 60(b) motion raises new grounds upon which a judgment could be set aside.”). Therefore, the juvenile court had jurisdiction to consider it. However, before the juvenile court had ruled on that motion, the father, on August 5, 2015, filed a notice of appeal to the Cullman Circuit Court (“the circuit court”), which docketed the father’s appeal as case number DR-15-269.

In Veteto v. Yocum, 794 So.2d 1117 (Ala. Civ. App. 2000), this court considered what, effect the filing of a notice of appeal from a district-court judgment would have if the district court had not ruled on a pending Rule 59, Ala. R‘. Civ. P., motion. Noting that Rule 4(a)(5), Ala. R. App. P., which provides that a notice of appeal from a circuit-court judgment filed “before the disposition of all post-judgment motions filed pursuant to Rules 50, 52, 55, and 59, Alabama Rules of Civil Procedure, shall be held in abeyance until all post-judgment motions filed pursuant to Rules 50, 52, 55, and 59 are ruled upon,” does not apply to appeals from district courts, this, court held that the filing of a notice of appeal from a district-court judgment before the disposition of a Rule 59 motion would effect the withdrawal of the Rule 59 motion and immediately vest the circuit court with jurisdiction over the appeal. 794 So.2d at 1118-19. However, an appeal from the denial, of a Rule 60(b)(4) motion does not vest the court to which the appeal is taken with jurisdiction to review the judgment challenged by the Rule 60(b)(4) motion;. rather, it vests the court to which the, appeal is taken with jurisdiction to review only the propriety of the lower court’s ruling on the Rule 60(b)(4) motion. See, e.g., Hilliard v. SouthTrust Bank of Alabama, N.A., 581 So.2d 826, 828 (Ala. 1991) (“An appeal from an order denying a Rule 60(b)[, Ala. R. Civ. P.,] motion presents for review only the correctness of that order and does not present for review the correctness of the final judgment from which the appellant seeks relief under the Rule 60(b) motion.”). Thus, in circumstances such as those in this case, if a notice of appeal filed while a Rule 60(b)(4) motion remains pending effected a withdrawal of the Rule 60(b)(4) motion, there would be-nothing for the court to which the appeal was taken. to review. Accordingly, we conclude that the holding in Veteto does not apply when a notice of appeal is filed while a Rule 60(b)(4) motion is pending in a juvenile court. Thus,.the father’s .May 2015 Rule 60(b) motion was not withdrawn.

“Rule 59.1, Ala. R. Civ. P., provides that ‘[n]o post-judgment motion filed pursuant to Rules 50, 52, 55, or 59[, Ala. R. Civ. P.,] shall remain pending in the trial court for more than ninety (90) days.’ In district court, ‘Rule 59.1 applies in the district courts except that the time period of ninety (90) days is reduced to fourteen. (14) days.’ Rule 59.1(dc). Rule 1(A), Ala. R. Juv. P., provides that the Rules of Civil Procedure are applicable in juvenile court to the extent they are not inconsistent with the Rules of Juvenile Procedure. Rule 1(B), Ala. R. Juv. P., provides that no post-judgment motion shall remain pending for more than 14 days. ■
“It is well settled that the- 90-day period for pending postjudgment motions applies only to motions filed under Rules 50, 52, 55, and 59, and that it does not apply to Rule 60(b) motions to set aside a judgment. Conway v. Housing Auth. of Birmingham Dist., 676 So.2d 344 (Ala. Civ. App. 1996). A Rule 60(b) motion does not bring up for review the merits of the underlying judgment and is instead a collateral attack on the judgment. It does not affect the finality of a judgment or suspend its operation. While a postjudgment motion filed pursuant to Rule 50,- 52, 55, or 59 cannot remain pending in the juvenile courts for more than 14 days, J.S. v. S.W., 702 So.2d 169 (Ala. Civ. App. 1997), a Rule 60(b) motion for relief from judgment is not deemed denied by operation of law under Rule 1(B), Ala. R. Juv. P.”

Ex parte R.S.C., 853 So.2d 228, 233-34 (Ala. Civ. App. 2002). Therefore, the father’s May 2015 Rule 60(b)(4) motion remains pending in the juvenile court. See R.S.C. 853 So.2d at 233-34, Thus, the father’s August 5, 2015, notice of appeal was premature with respect to the May 2015 Rule 60(b)(4) motion because no final judgment has been entered with respect to that motion.-See Rule 28(A)(1), Ala. R. Juv. P. (authorizing appeals from only “final orders or judgments” of the juvenile court (emphasis added)); see also R.S.C., 853 So.2d at 233-34 (holding that, because a parent’s Rule 60(b) motions were not deemed denied by operation of law under Rule 1(b), Ala. R. Juv. P., the parent’s petition for a writ of mandamus seeking to set aside purported denials of the Rule 60(b) motions by operation of law was premature because the trial court had not yet ruled upon the motions).

On the other hand,-'the August 5, 2015, notice of appeal was filed more than 14 days after the entry of the judgment denying the February 2015 Rule 60(b)(4) motion, and, therefore, was untimely with respect to that judgment. See Rule -28(C), Ala. R. Juv. P. (“Written notice of appeal shall be filed within 14 days of the date of the entry of [the] order or judgment appealed from, whether the appeal is to an appellate court or to the circuit court for trial de novo.”).

Because the August 5, 2015, notice of appeal was untimely as to the February Rule 60(b)(4) motion and premature as to the May 2015 Rule 60(b)(4) motion, that notice of appeal never vested the circuit court with jurisdiction. Nonetheless, the circuit court, oh May 17, 2016, entered the following judgment:

“This matter comes before the Court on appeal and/or motion for relief from Judgment entered in the District Court of Cullman County, CS-2013-900025, in which the Court accepted and confirmed an agreement between the parties to terminate [the father’s] parental rights to a minor child, the subject of the proceedings.
“The Judgment was entered on 11/6/13. Some fifteen months thereafter, on 2/3/15, [the father] filed a Motion To Set Aside. After hearing, the Motion was denied on 4/29/15.
“[The father’s] appeal followed, This Court held a hearing on [the mother’s] •Motion To Dismiss Appeal on 2/18/16 and thereafter allowed additional briefing by .the parties on the issues raised by each.
“After reviewing the :arguments of counsel and briefs submitted, the Court finds that any appeal is time-barred. Furthermore, the Court finds that [the father] is entitled to no relief cognizable pursuant to Rule 60(b), Alabama Rules Of Civil Procedure.
“THEREFORE, ail relief requested in the pleadings submitted on behalf of [the father] is respectfully DENIED.”

The father filed a notice of appeal to this court on June 23, 2016, 37 days after the entry of the circuit court’s judgment. For the reasons discussed below, we are treating the father’s appeal, which was untimely, as a petition for the writ of mandamus, and we have restyled the case accordingly. See, e.g., Kirksey v. Johnson, 166 So.3d 633, 643 (Ala. 2014).

Because the father’s appeal to the circuit court was an appeal from a judgment entered by a juvenile court, he was required to file his notice of appeal from the circuit court’s judgment within 14 days after that judgment was entered. See, e.g., H.E.H. v. K.L.C., 976 So.2d 458, 459 (Ala. Civ. App. 2007) (holding that notice of appeal filed 29 days after entry of a circuit court’s judgment in an appeal from juvenile court was untimely “because it was required to be filed within 14 days of the entry of the judgment even though the case was proceeding as an appeal for a trial de novo in the circuit court”). Thus, the father’s notice of appeal from the circuit court’s judgment was untimely. However, in Ex parte J.B., 223 So.3d 251, 254 (Ala. Civ. App. 2016), this court interpreted our supreme court’s decision in Ex parte K.R., 210 So.3d 1106 (Ala. 2016), as having held that in situations in which a petition for a writ of mandamus challenges the subject-matter jurisdiction of the court that rendered the challenged ruling, the mandamus petition need not timely invoke the jurisdiction of the appellate court. Accordingly, we have exercised our discretion to treat the father’s appeal as a petition for a writ of mandamus challenging the subject-matter jurisdiction of the circuit court.

As explained above, the circuit court never acquired jurisdiction over the "father’s appeal, and, therefore, its judgment is void..Moreover, the materials before this court indicate that the juvenile court never ruled on the father’s May 2015 Rule 60(b)(4) motion, and, therefore, that Rule 60(b)(4) motion is still pending before the juvenile court. Accordingly, we issue a writ of mandamus directing the circuit court to vacate its May 17, 2016, judgment.

PETITION GRANTED; WRIT ISSUED.

Thompson, P.J., and Moore, J., concur.

Pittman, J., concurs, specially,.with writing, which Donaldson, J., joins.

Thomas, J., recuses herself.

PITTMAN, Judge,

concurring specially.

I concur in the main opinion. But see Ex parte M.F.B., 228 So.3d 460, 462-63 (Ala. Civ. App. 2017) (Pittman, J., concurring specially).

Donaldson, J., concurs.

      . Although it is outside the scope of our review in this case, we point out for the benefit of the bench and bar that ’’[t]he convenience or the desires of the parents may not serve as the sole basis for terminating a noncustodial parent's parental rights.” S.D.P. v. U.R.S., 18 So.3d 936, 940 (Ala. Civ. App. 2009). Moreover, because our jurisdiction in this case is limited to determining whether the Cullman Circuit Court acquired jurisdiction over the father’s appeal from a subsequent judgment of the juvenile court, we do not consider the issues (1) whether the filing of tire child-support petition, which did not seek termination of the father’s parental rights, was sufficient to invoke the juvenile court's jurisdiction to terminate the father’s parental rights; (2) whether the mother could lawfully waive the child's right to child support from the father; or (3) whether the failure of the juvenile court to inform the father of his right to appointed counsel in a termination-of-parental-rights proceeding before terminating his parental rights rendered the TPR judgment void. Thus, nothing in this opinion should be interpreted as expressing an opinion regarding those issues.


author: PER CURIAM.

text:
    EX PARTE Ronald D. VETETO (In re: Ronald D. Veteto v. Anthony Merriweather et al.)
    2160203
    Court of Civil Appeals of Alabama.
    February 3, 2017

      Ronald D. Veteto, pro se.
    Submitted on mandamus petition only.
   PER CURIAM.

Ronald D. Veteto, an inmate incarcerated at the St. Clair Correctional Facility (“the prison”), petitions this court for a writ of mandamus directing the Montgomery Circuit Court (“the trial court”) to enter a temporary restraining order requiring that Dewayne Estes, the warden of the prison, supply him with materials that Veteto says are essential for him to prepare, present, and argue the underlying civil action. Estes is one of the defendants in the action below. Veteto also asks this court to direct the trial court to enter an order compelling certain discovery.

This is the second time Veteto has come before this court in this matter. In Veteto v. Merriweather, 219 So.3d 676 (Ala. Civ. App. 2016), we reversed the trial court’s summary judgment in favor of all the defendants and remanded the cause for further proceedings. In his petition for the writ of mandamus, Veteto alleges that, since the release of the opinion in Veteto, Estes and his subordinates have engaged in a “pattern of harassment, retaliation, and punishment” against him that includes denying him access to legal research, clerical supplies, and other resources. Veteto claims that Estes and other prison employees have also allowed “hostile inmates” to steal or destroy his personal property, including his legal records and the file he had accumulated in this case. He also states that his petition is not notarized because, he says, “[t]he Warden/subordinates refuse to provide timely notarial services before I mail this.”

Veteto further alleges in his petition that he has filed motions for a temporary-restraining order and for a hearing on a preliminary injunction that the trial court has “ignored.” He also asserts that the trial court has attempted to “force” Veteto to try this ease without his records, discovery, litigation essentials, witnesses, evidence, and proper preparation.

When Veteto initially filed his petition for the writ of mandamus, he did not provide this court with any materials, such as orders of the trial court or other parts of the record, that would be essential to our understanding of the matters set forth in the petition, as required by Rule 21(a)(1)(E), Ala. R. App. P. He also failed to serve the respondent judge or other parties with a copy of his petition. In his petition, Veteto states that Estes “refused” to supply him with the supplies and postage necessary to serve the other parties and asked that the clerk of this court serve the petition for him.

On December 23, 2016, this court notified Veteto that his petition was deficient, because it failed to comply with Rule 21(a)(1)(E), and because he had failed to serve a copy of the petition on the respondent judge and all other parties, as required by Rule 21(a)(1), Ala. R. App. P. Veteto was given 14 days in which to comply with the cited provisions of Rule 21. On January 4, 2017, Veteto filed his response, in which he. states that, “until some court orders the warden” to provide him with pens, paper, and other supplies, he cannot serve the petition as directed. He also states that he cannot provide this court with copies of the trial court’s orders because, he says, they were made orally in court and no transcripts of the trial-court proceedings have been prepared.

■ “‘This Court has consistently held that the writ of mandamus is an extraordinary and drastic writ and that a party seeking such a writ must meet certain criteria. We will issue the writ of mandamus only when (1) the petitioner has a clear legal right to. the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court’s jurisdiction is properly invoked. Ex parte Mercury Fin. Corp., 715 So.2d 196, 198 (Ala. 1997). Because mandamus is an extraordinary remedy, the standard by which this Court reviews a petition for the writ of mandamus is to determine whether the trial court has clearly abused its discretion. See Ex parte Rudolph, 515 So.2d 704, 706 (Ala. 1987).’
“Ex parte Flint Constr. Co., 775 So.2d [805,] 808 [ (Ala. 2000) ].”

Ex parte Alabama Dep’t of Human Res., 227 So. 3d 519, 521 (Ala. Civ. App. 2017).

Rule 58, Ala. R. Civ. P., does not allow for an oral rendition of a judgment or order. Baxley, Dillard, Dauphin, McKnight & James v. Burt, 101 So.3d 784, 787 (Ala. Civ. App. 2012). According to Veteto, the trial court has not yet entered written orders on the motions for a temporary restraining order, a hearing, or to compel discovery. Therefore, there are no-adverse rulings for this court to. consider at this timé. Moreover, it is the duty of this court to review the propriety of orders and judgments made in the trial court; this court cannot issue rulings on the motions pending before the trial court. Vete-to’s petition is therefore premature.

Moreover, we recognize that Veteto claims that circumstances imposed by prison officials have rendered him unable to comply with the rules of appellate procedure. However, “[i]t is -well settled that the ‘Rules governing the operation of the courts of this state are no more forgiving to a pro se litigant than to one represented by counsel.’ Lockett v. A.L. Sandlin Lumber Co., 588 So.2d 889, 890 (Ala. Civ. App. 1991); see also Leeth v. Jim Walter Homes, Inc., 789 So.2d 243, 246 (Ala. Civ. App. 2000) (same).” Metcalf v. Pentagon Fed. Credit Union, 155 So.3d 256, 261 (Ala. Civ. App. 2014).

Rule 21(a)(l)provides, in part:

“(1) General. Application for a writ of mandamus or of prohibition directed to a judge or judges shall be made- by filing a petition therefor with the clerk ,of the appellate court having jurisdiction thereof with certifícate of service on the respondent judge or judges and on all parties to the action in the trial court. The petition shall contain, under appropriate headings and in the order here indicated:
“(E) Appendix. An appendix including copies of any order or opinion or parts of the record that would be essential to an understanding of the matters set forth in the petition .... ”

(Emphasis added.)

This court has held that petitions for the writ of mandamus-that do not comply with Rule 21(a)(1)(E) by failing to-include certain materials, such as court orders and other parts of the record essential-to our. consideration of the request for relief, are due to be dismissed. Ex parte Strickland, 172 So.3d 857, 860 (Ala. Civ. App. 2014). Without such materials- this court is unable to conduct a meaningful review or to grant the relief sought in the petition. In other words, without- providing this court with such materials, a petitioner is unable to demonstrate that he or she has a clear legal right to the relief requested. ;

. In this case, the trial court-- has not yet entered orders as to Veteto’s .pending motions. Additionally, Veteto has failed to comply with the requirements of Rule 21(a)(1)(E) and has not provided us with any means by which we ■ can conduct a meaningful review of the issues presented in his petition. Accordingly, the petition is dismissed.

PETITION DISMISSED. '

All the judges concur.


author: THOMAS, Judge.

text:
    Kevin Dwayne ALLISON v. Christy Michelle HELMS
    2160017
    Court of Civil Appeals of Alabama.
    February 10, 2017

      Kevin Dwayne Allison, pro se.
    Submitted on appellant’s brief only.
   THOMAS, Judge.

Kevin Dwayne Allison (“the husband”), and Christy Michelle Helms (“the wife”) were married in July 2010. In April 2013, the husband began serving a 20-year sentence in the penitentiary. On September 16, 2016, he filed a verified complaint in the Marshall Circuit Court in which he sought a divorce from the wife. The complaint stated that the wife was a resident of Marshall County, that the husband had been a resident of the state for the six months preceding the complaint, and that neither party was a member of the armed services. The husband stated as grounds for the divorce incompatibility, see Ala. Code 1975, § 30—2—1(a)(7), and his incarceration. See Ala. Code 1975, § 30-2-1(a)(4) (providing that “[i]mprisonment in the penitentiary of this or any other, state for two years, the sentence being for seven years or longer,” is a ground for divorce).

When he filed his complaint, the husband included a second copy of the complaint,, an unsigned copy of an answer and waiver that he had prepared for the wife to sign, and a proposed divorce judgment. He requested that the wife be served, but the record does not reflect that service was attempted or. perfected. Instead, the trial court entered an order on September 19, 2016, which stated, in its entirety, as follows:

“FINAL ORDER OF DIVORCE filed by ALLISON KEVIN DWAYNE is hereby DENIED.
“The pleadings are inadequate and incomplete. The parties are highly encouraged to seek legal advice.”

(Capitalization in original.)’

The husband filed a notice of appeal on September 30, 2016. He challenges what he characterizes as the trial court’s dismissal of his divorce complaint, Because the trial court did not dismiss the husband’s divorce complaint, we dismiss the appeal.

The trial court apparently thought that the husband was seeking to have the proposed divorce judgment entered immediately as a judgment in an uncontested-divorce proceeding. We presume that the trial court entered the September 30, 2016, order properly refusing to enter the divorce judgment because the wife had not filed a signed answer and waiver and because the required 30-day waiting period had not expired. See Ala. Code 1975, § 30-2-8.1(a) (“A court shall not enter a final judgment of divorce until after the expiration of 30 days from the date of the filing of the summons and complaint.”). However, based on the language of the September 30, 2016, order, we conclude that it does not' dismiss the action.

An appeal generally lies only from a final judgment. “A ‘final judgment’ is a terminal decision which,demonstrates there has been complete adjudication of all matters in controversy between the litigants.” Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala. Civ. App. 1986). The trial court did not dismiss the husband’s divorce complaint; instead, the trial court refused to enter a premature divorce judgment. The husband’s divorce action remains pending in the trial court, and the action shall proceed to judgment once service on the wife is perfected. We therefore dismiss the husband’s appeal.

APPEAL DISMISSED.

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


author: JOINER, Judge.

text:
    Larry Joe MARTIN v. STATE of Alabama
    CR-15-1158
    Court of Criminal Appeals of Alabama.
    February 10, 2017
    E. Patrick Hill, Huntsville, for appellant.
    Luther Strange, atty. gen., and Yvonne A. H. Saxon, asst. atty. gen., for appellee.
   JOINER, Judge.

Larry Joe Martin was convicted of second-degree assault, see § 13A-6-21, Aa. Code 1975, and was sentenced to 10 years’ imprisonment; that sentence was split for Martin to serve 6 months’ detention in the Huntsville-Madison County Metro Jail followed by 3 years’ supervised probation. The circuit court ordered Martin to pay a $2,500 fine, a $175 bail-bond fee, a $100 crime-victims-compensation assessment, court costs, and attorney’s fees.

The. case-action-summary sheet included in the record indicates that Martin was arrested on August 10, 2013, that he was formally indicted on August 29, 2014, and that his trial was set for March 7, 2016. Beginning as early as August 20, 2015, Martin made several motions in this case—specifically: (1) a written motion in limine and objection to the State’s notice of intent to introduce evidence of Martin’s prior convictions and other prior bad acts; (2) two -written motions to suppress certain evidence; (3) an oral motion requesting a mental-health examination; (4) and, on March 4, 2016, a motion asserting the affirmative defense of self-defense. On the morning of March 7, 2016, the State filed a motion for discovery and its certification of compliance with Rule 16.1, Ala. R. Crim. P. In response, Martin filed a motion requesting, for the first time, a pretrial immunity hearing as provided for in Harrison v. State, 203 So.3d 126 (Ala. Crim. App. 2016).

The circuit court addressed Martin’s motion for an immunity hearing immediately before trial commenced. In support of his motion, Martin argued: “For good cause, I would show that I just received information that relates to self-defense.” In response, the State argued: (1) that the motion—filed 23 minutes before voir dire was scheduled to commence—was untimely and (2) that it had not received the necessary notice to prepare for a pretrial immunity hearing. The circuit court denied the motion and arraigned Martin. Before calling in the venire and commencing with voir dire, the circuit court stated:

“This case was called for trial this morning. At about between 11:00 and 11:15 I notified the lawyers that since I had additional pleas to take, that I would not be able to start the trial this morning, come back today at 1:00 and be ready to strike a jury and begin their trial. Apparently over the lunch break defense counsel filed a motion, pursuant to the self-defense statute, asking for an evidentiary hearing as to the issue of immunity. I am familiar with the Harrison v. State case, and based on the fact—of .course, defense counsel, and even the defendant, isn’t admitted to inject or create error in a process. Based on the fact that we have a jury standing outside ready to go, the request for an evidentiary hearing has been denied.
“Part of my job is to ensure that we have fair play and that both sides have a fair opportunity to present their side and also to administer 'the effective and efficient operation of the court. So in the future, if you have something like that, file it a little earlier.”

(R. 9-10.) Martin objected to the circuit court’s ruling.

Martin was ultimately convicted of second-degree assault. Following his conviction and sentencing, Martin filed a motion for a new trial arguing, among other issues, that the circuit court had improperly denied his motion for a pretrial immunity hearing. The circuit court denied his new-trial motion.

On appeal, Martin contends only that the circuit court -erred when it denied as untimely his request for a pretrial immunity hearing.

Rule 15.3, Ala. R. Crim. P., provides:

“(a) Pre-Trial Motions. A motion under Rule 15.2 must be made:
“(1) In circuit court, at or before arraignment or by such later date as may be set by the court;
“(b) Extension or Limitation of Time. For good cause shown,' the court may extend or limit the time of filing such motions.”

Therefore, a circuit court’s decision to deny a motion made under Rule 15.2, Ala. R. Crim. P., as untimely is due to be evaluated ' under an abuse-of-discretion standard' of review; “ ‘A trial court abuses its' discretion only when its decision is based'on an erroneous conclusion of law or where the record contains no evidence on which -it rationally could have based its decision.’ ” McCain v. State, 33 So.3d 642, 647 (Ala. Crim. App. 2009)(quoting Holden v. State, 820 So.2d 158, 160 (Ala. Crim. App. 2001)).

The Alabama Supreme Court has stated:

“A trial court-has the authority to manage and control its docket. See Eastern Dredging & Constr., Inc. v. Parliament House, L.L.C., 698 So.2d 102, 104 (Ala. 1997); C.E. v. M.G., 169 So.3d 1061, 1068 (Ala. Civ. App. 2015); and Smith v. State, 961 So.2d 916, 928 (Ala. Crim. App. 2006). However, § 13A-3-23(d)[, Ala. Code 1975,] provides for immunity from the process of ‘criminal prosecution,’ and, as explained in [Ex parte] Auburn University, [6 So.3d 478 (Ala. 2008),] the general purpose of immunity is not just to prevent one from having the burden to ‘stand trial,’ but also to prevent one from having the burden of ‘being subjected to suit’ and of litigation in the first place. In light of this, a proceeding to test a defendant’s entitlement to immunity should occur as soon as practicable, with due regard to the trial court’s authority to manage its docket and both sides’ ability to prepare for the proceeding.”

Ex parte Watters, 220 So.3d 1093, 1099 (Ala. 2016).

As noted above, although Martin filed several motions well in advance of trial and specifically asserted the defense of self-defense in a motion filed three days before his trial was scheduled to commence, he did not request a pretrial immunity hearing until 23 minutes before his trial was to begin. Aside from a general assertion from Martin’s defense counsel that she had recently “received information that relates to self-defense,” Martin did not communicate to the circuit court or otherwise preserve for the record his reasoning for' waiting until only 23 minutes before trial to request a pretrial immunity hearing. The record before us simply does not give any indicátion as to why Martin could not have made an earlier request for a pretrial hearing, especially in light of the fact that he had already filed a motion asserting his claim that he was acting in self-defense. Moreover, the State was prepared to commence with voir dire, and the venire was “standing outside ready to go” at the time Martin requested the hearing. Martin has not shown that his request was made as soon as practicable, and, in fact, it appears that holding such a hearing at the time Martin requested it would clearly have interfered with the circuit court’s ability to manage its docket and would have done little, if anything, to advance the purposes of immunity discussed in Watters, supra. Whether there could ever be circumstances that would justify such a late request for a pretrial immunity hearing is not before us. Under the particular circumstances of this case, however, the circuit court -did not abuse its discretion when it . denied Martin’s motion as being untimely, and Martin is : not entitled to relief.

Based on the foregoing, the judgment of the circuit court is affirmed.

AFFIRMED.

Welch, Kellum, and Burke, JJ,, concur.

Windom, P.J., concurs in the result.

      . In Harrison, supra, this Cbiirt cited Rule 15.4, Ala. R. Crim. P.—which provides the procedure for pretrial hearings on motions made pursuant to Rule 15.2(a)~-as providing a mechanism for holding a pretrial hearing when a defendant who claims immunity from Criminal prosecution requests a pretrial evi-dentiary hearing on that matter. Therefore, it necessarily follows that a motion requesting a pretrial immunity hearing is a motion made pursuant to Rule 15.2; Ala. R. Crim. P,


text:
    FLORIDA BOARD OF BAR EXAMINERS RE: G.R.F.
    CASE NO.: SC17-1770
    Supreme Court of Florida.
    OCTOBER 6, 2017
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and G.R.F. shall be admitted to The Florida Bar subject to the following conditions:

1. The applicant’s license to practice law shall be placed on probation for a period of one year.
2. During the period of probation, the applicant shall:
(a) continue to consult with Richard Senesac, Ph.D., or other licensed mental health provider, at least, quarterly or more frequently as his mental health provider deems necessary;
(b) follow promptly, diligently and completely all instructions by his mental health provider including the taking of any medication in the recommended manner as may be prescribed by his mental health provider;
(c) have his mental health provider submit quarterly reports to The Florida Bar during the entire probationary period. These reports shall confirm the applicant’s consultations for the preceding quarter and shall advise The Florida Bar of the applicant’s continuing ability to engage in the active practice of law;
(d) obtain an agreement from his mental health provider stating that the mental health provider will immediately notify The Florida Bar if the applicant, misses a schedule appointment without prior rescheduling; and
(e)submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the entire probationary pei'iod attesting to his compliance with the conditions set forth in 2(a), (b), (c), and (d) above.
3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule l-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.
4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. ■ Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate his license.
5. If the applicant’s license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.
6. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.
7. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution or the filing of any grievance or complaint related to the applicant’s practice of law.
8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.
9. The applicant specifically consents to and authorizes the release of any and all materials in the applicant’s file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under the Consent Agreement.

A True Copy

Test:

John A. Tomasino Clerk, Supreme Court


text:
    Kenneth Louis DESSAURE, Appellant, v. STATE of Florida, Appellee.
    No. SC17-1075
    Supreme Court of Florida.
    [November 16, 2017]
    James V. Viggiano, Jr., Capital Collateral Regional Counsel, Mark S. Gruber, and Julie A. Moriey, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Stephen D. Ake, Senior Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

We hereby affirm the trial court’s denial of Kenneth Louis Dessaure’s successive motion for postconviction relief. See Mullens v. State, 197 So.3d 16, 40 (Fla. 2016) (determining that defendant who validly waived penalty phase jury was not entitled to relief under Hurst because a defendant “cannot subvert the right to jury factfind-ing by waiving that right and then suggesting that a subsequent development in the law has fundamentally undermined his sentence”), cert. denied, - U.S. -, 137 S.Ct. 672, 196 L.Ed.2d 557 (2017); see also Brant v. State, 197 So.3d 1051, 1079 (Fla. 2016) (relying on Mullens to conclude that a claim for Hurst relief after defendant waived penalty phase jury was equally precluded in the postconviction context).

It is so ordered."

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.


text:
    Andrew Richard ALLRED, Appellant, v. STATE of Florida, Appellee.
    No. SC17-846
    Supreme Court of Florida.
    [November 16, 2017]
    James V. Viggiano, Jr., Capital Collateral Regional Counsel, Mark S.' Gruber, and Julie A, Morley, Assistant Capital Collateral Regional Counsel,- Middle Region, Temple Terrace, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Vivian Singleton, Assistant Attorney General, ■ Daytona Beach, Florida, for Appellee
   PER CURIAM.

Andrew Richard Allred, a prisoner under sentences of death, appeals the circuit court’s order summarily denying his first successive motion for postcohvictiori relief, which was filed under Florida Rule of Criminal Procedure 3.851, We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

In 2008, Allred pleaded -guilty to and was convicted of the first-degree premeditated murders of Michael Ruschak and Tiffany Barwick. Allred subsequently waived his right to a jury in the penalty phase. Following the penalty phase bench trial and a Spencer hearing, the trial court sentenced Allred to death for each of the murders. We affirmed Allred’s convictions and sentences of death on direct appeal. Allred v. State, 55 So.3d 1267 (Fla. 2010). We also upheld the denial of his initial motion for po'stconviction relief. Allred v. State, 186 So.3d 530 (Fla. 2016).

In January 2017, Allred filed his current first successive postconviction motion, in which he .raised numerous claims, in light of Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and Hurst v. State, 202 So.3d 40 (Fla. 2016), cert. denied, — U.S. -, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). In April 2017, the circuit court entered an order summarily denying Allred’s successive postconviction motion. This appeal followed. While All-red’s postconviction case was pending in this Court, we directed the parties to-file briefs addressing why the circuit court’s order should not be affirmed based on this Court’s precedent in Mullens v. State, 197 So.3d 16 (Fla. 2016), cert. denied, — U.S. -, 137 S.Ct. 672, 196 L.Ed.2d 557 (2017).

In Mullens, this Court held that a defendant “capnot subvert the right, to jury factfinding by waiving that right and then suggesting that a subsequent development in the law has fundamentally undermined his sentence.” Mullens, 197 So.3d at 40. This Court has consistently relied on Mul-lens to deny Hurst relief to defendants that have waived the right to a penalty phase jury. See, e.g., Dessaure v. State, No. SC17-1075, 230 So.3d 411, 2017 WL 5494384 (slip op. issued Fla. Nov. 16, 2017); Twilegar v. State, No. SC17-839, 228 So.3d 550, 2017 WL 4985519 (Fla. Nov. 2, 2017); Covington v. State, 42 Fla. L. Weekly S787, 2017 WL 3764377, at *14 (Fla. Aug. 31, 2017); Knight v. State, 211 So.3d 1, 5 n.2 (Fla. 2016); Robertson v. State, No. SC16-1297, 2016 WL 7043020, at *1 n.1 (Fla. Dec. 1, 2016); Davis v. State, 207 So.3d 177, 212 (Fla. 2016), cert. denied, — U.S. -, 137 S.Ct. 2218, 198 L.Ed.2d 663 (2017); Brant v. State, 197 So.3d 1051, 1079 (Fla. 2016). Allred is among those defendants who validly waived the right to a penalty phase jury, and his arguments dó not compel departing from our precedent.

Accordingly, we affirm the circuit court’s order summarily denying Allred’s first successive motion for postconviction relief. - =

It is so ordered.

LABARGA,C.J.,.and PARIENTE, • LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.

      . Spencer v. State, 615 So.2d 688 (Fla. 1993).


text:
    David GAL, Petitioner, v. PREPARED INSURANCE COMPANY, Respondent.
    No. SC16-2190
    Supreme Court of Florida.
    [November 16, 2017]
    Arnold R. Ginsberg of Arnold R. Ginsberg, P.A., Miami, Florida; and Justin P. Cernitz of Cernitz & Shanbron, P.A., Miami, Florida, for Petitioner
    Elizabeth K, Russo of Russo Appellate Firm, P.A., Miami, Florida; and Maria Medina of Diaz Briscoe Medina, P.A., Miami, Florida, for Respondent
    Kansas R. Gooden of Boyd & Jenerette, P.A., Jacksonville, Florida; and Elaine D. Walter of Gaebe, Mullen, Antonelli & DiMatteo, Coral Gables, Florida, for Amicus Curiae Florida Defense Lawyers Association
   PER CURIAM.

We initially accepted jurisdiction to review the decision of the Fourth District Court of Appeal in Prepared Ins. Co. v. Gal, 209 So.3d 14 (Fla. 4th DCA 2016), on grounds of express and direct conflict with Trinidad v. Fla. Peninsula Ins. Co., 121 So.3d 433 (Fla. 2013), and also with Colon v. Lara, 389 So.2d 1070 (Fla. 3d DCA 1980). See art. V, § 3(b)(3), Fla. Const. Having considered the Fourth District’s opinion and the briefs of the parties, upon further review, we have determined that we should exercise our discretion and discharge jurisdiction. Accordingly, we hereby dismiss review.

It is so ordered.

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

CANADY, J., concurs in result.

LEWIS, J., dissents.