text:
    Robert BREWER and Mary Pauline Brewer v. Joshua ATKINSON, William J. Atkinson III, and Atkinson Nursery, Inc.
    2161073
    Court of Civil Appeals of Alabama.
    March 9, 2018
    Clay T. Rossi of Rossi Law Firm, LLC, Mobile, for appellants.
    Julie D. Pearce of Gaines Gault Hendrix, P.C., Birmingham, for appellees.
   THOMAS, Judge.

In March 2015, Robert Brewer and Mary Pauline Brewer were traveling through Theodore in Mobile County in their pickup truck around 11:00 p.m. The pickup truck collided with a cow, later identified as "Cow 64," that had wandered onto the roadway, causing damage to the pickup truck and injuries to Robert. In February 2016, the Brewers sued Joshua Atkinson, the owner of Cow 64, William J. Atkinson III, the owner of the property upon which Cow 64 had been kept, and Atkinson Nursery, Inc. ("the nursery"), the business operated by William (Joshua, William, and the nursery are hereinafter referred to collectively as "the Atkinsons"), in the Mobile Circuit Court ("the trial court"). In the complaint, the Brewers claimed that Joshua had violated a duty under Ala. Code 1975, § 3-5-1 et seq., to refrain from knowingly or willfully putting or placing Cow 64 on a public roadway and that they were entitled to damages for such breach. The Brewers also sought damages for the alleged negligence, negligence per se, or wantonness of William and the nursery and for Joshua's alleged negligent hiring, training, or supervision of William and/or the nursery based on allegations that the Atkinsons had failed to properly fence Cow 64. In addition, Mary sought damages for loss of consortium. The Atkinsons answered the complaint, generally denying liability.

In February 2017, the Brewers moved for a partial summary judgment, arguing that William and the nursery, as mere keepers of Cow 64 as opposed to its owners, were not entitled to rely on Ala. Code 1975, § 3-5-3(a), which, the Brewers contended, limits the liability of only owners of livestock to owners or occupants of motor vehicles who strike livestock on a roadway. In March 2017, the Atkinsons moved for a summary judgment on all claims against them, arguing, among other things, that they had not knowingly or willfully put or placed Cow 64 on the roadway and were therefore, under § 3-5-3(a), not liable to the Brewers. The trial court entered a judgment on July 7, 2017, denying the Brewers' motion for a partial summary judgment and granting the Atkinsons' motion for a summary judgment on all counts of the complaint. The Brewers filed a timely postjudgment motion on August 3, 2017, in which they asserted for the first time a challenge to the constitutionality of § 3-5-3(a). The trial court summarily denied the Brewers' postjudgment motion the next day, and the Brewers timely appealed to our supreme court, which transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

On appeal, the Brewers raise three arguments. They argue that § 3-5-3 is unconstitutional facially and as applied. They argue that § 3-5-3(a) is repugnant to Alabama's status as a "closed range" state and that the 1951 amendments to Alabama's stock laws implicitly repealed the limitation of liability in § 3-5-3(a). Finally, they contend that the fence in which Cow 64 was contained was not properly constructed in accordance with the statutes governing livestock fencing found at Ala. Code 1975, §§ 3-4-3, 3-4-4, and 3-4-5 and, therefore, that there existed a jury question on whether the Atkinsons knowingly or willfully created a hazard that Cow 64 would enter the roadway by allegedly improperly constructing and maintaining the fence.

We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Rule 56(c)(3) ; see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala. 1992). If the movant meets this burden, "the burden then shifts to the nonmovant to rebut the movant's prima facie showing by 'substantial evidence.' " Lee, 592 So.2d at 1038 (footnote omitted). "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989) ; see Ala. Code 1975, § 12-21-12(d).

As noted above, the Brewers first raised a constitutional challenge to § 3-5-3(a) in their postjudgment motion. The Brewers argued that § 3-5-3(a) is unconstitutional both facially and as applied. However, the Brewers did not properly serve the attorney general with the facial constitutional challenge because they mailed a copy of their postjudgment motion to the attorney general by use of regular first-class mail. See Ex parte Gentry, 238 So.3d 66, 72-74 (Ala. Civ. App. 2017) (explaining that service on the attorney general may be made by certified mail under Rule 4(i)(2), Ala. R. Civ. P., but that sending notice of a constitutional challenge to the attorney general by the use of regular mail is insufficient service of process). We conclude that the facial constitutional challenge was not properly before the trial court and is therefore not properly before this court for consideration. Tucker v. Personnel Bd. of Dothan, 644 So.2d 8, 9 (Ala. Civ. App. 1994) ("If the party challenging the constitutionality of a statute fails to serve the attorney general, as required by Ala. Code 1975, § 6-6-227, the trial court has no jurisdiction to decide the constitutional claims.").

We have held, however, that the attorney general is not required to be served with an "as applied" challenge to a statute. See Ex parte Gentry, 238 So.3d at 74-75 (citing Ex parte Squires, 960 So.2d 661, 664-65 (Ala. 2006), for the proposition that "[a] party need not serve the attorney general to assert an 'as applied' challenge to a statute"). Thus, the failure to properly serve the attorney general is not an impediment to our review of the Brewers' "as applied" challenge to § 3-5-3(a). Instead, we conclude that our review of the Brewers' "as applied" challenge to § 3-5-3(a) is precluded because of the Brewers' late assertion of that challenge.

By now it is well settled that "a trial court has the discretion to consider a new legal argument in a post-judgment motion, but it is not required to do so." Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1369 (Ala. 1988) ; see also Espinoza v. Rudolph, 46 So.3d 403, 416 (Ala. 2010) ; Special Assets, L.L.C. v. Chase Home Fin., L.L.C., 991 So.2d 668, 677-78 (Ala. 2007).

The trial court denied the Brewers' postjudgment motion without comment on the arguments contained therein. Thus, nothing in the record indicates that the trial court considered the constitutional challenge to § 3-5-3(a), and, therefore, we will not presume that the trial court did so. See Special Assets, 991 So.2d at 678. Furthermore, our supreme court has explained that " '[a]n appellant cannot invoke action by a court and have a case tried on certain issues and then later, when dissatisfied with the result, raise an entirely new issue, such as the constitutionality of the statutes under which he was proceeding,' " in a postjudgment motion. Alabama Power Co. v. Capps, 519 So.2d 1328, 1330 (Ala. 1988) (quoting Talley v. A & M Constr. Co., 284 Ala. 371, 373, 225 So.2d 359, 360 (1969) ); see also Hicks v. Huggins, 405 So.2d 1324, 1327 (Ala. Civ. App. 1981) ("Constitutional issues raised for the first time in a motion for new trial come too late for consideration on appeal."). Accordingly, we will not consider the "as applied" constitutional challenge to § 3-5-3(a) asserted by the Brewers.

The Brewers next argue that the limited remedy contained in § 3-5-3(a) was developed as part of an "open range" livestock system, under which livestock owners could allow their livestock to roam at large and upon the lands of another. According to the Brewers, the 1951 amendments to Alabama's stock laws created a "closed range" livestock system, in which livestock owners are required to fence in livestock. Based on these premises, the Brewers challenge § 3-5-3(a) as repugnant to the "closed range" system and contend that, based on Monfee v. Seymore, 392 So.2d 1198 (Ala. Civ. App. 1980), this court should decide that the limited remedy contained in § 3-5-3(a) was implicitly repealed by the 1951 amendments to Alabama's stock laws.

In Monfee, this court determined that Ala. Code 1975, § 3-4-6(a), had been implicitly repealed by the 1951 amendments to Alabama's stock laws. Monfee, 392 So.2d at 1201. Section 3-4-6(a) had extended immunity to livestock owners for damage done by their livestock to lands not enclosed by a lawful fence. As we explained in Monfee, before the enactment of the 1939 Local Option Stock Law, Act No. 68, Ala. Acts 1939 ("the 1939 act"), Alabama had been what is referred to as an "open range" state. Id. at 1200. That is, before the 1939 act, "Alabama was an open range state where it was lawful for one to allow his livestock to go at large on the lands of another." Id. Thus, if a landowner wanted to protect his crops from roaming livestock, the landowner was required to fence the livestock out of his property. Id. at 1201. As we noted in Monfee, the 1939 act, which included what is now § 3-5-3(a), changed Alabama from an "open range" state to a "closed range" state, except that it allowed each county the option of electing to remain an "open range" county. Id. In 1951, the legislature, in Act No. 53, Ala. Acts 1951 ("the 1951 act"), abolished those provisions of the 1939 act allowing for the creation of "open range" counties, making the entire state a "closed range." Id. The 1951 act also "repealed ... 'all other laws or parts of laws in conflict herewith.' " Id. (quoting the 1951 act). We concluded in Monfee that the immunity extended by § 3-4-6(a) to livestock owners for damage done by livestock to another's property was repugnant to "closed range" principles, which require livestock owners to fence in livestock, and, therefore, that § 3-4-6(a) had been implicitly repealed by the 1951 act. Id.

However, we cannot agree with the Brewers that the limited remedy contained in § 3-5-3(a) was implicitly repealed by the 1951 act. The Court of Appeals considered this exact argument in Randle v. Payne, 39 Ala. App. 652, 656, 107 So.2d 907, 910 (Civ. 1958) :

"We think of necessity we must approach this review on the basis of whether the 1951 Act repealed the limited remedy provided in Section 79 of the 1939 Act [which is now § 3-5-3(a) ], which in effect created a new cause of action, i.e., liability of the owner of stock running at large on a public highway, where no such right, or remedy, had before existed.
"It is appellant's contention, in effect, that the 1951 Act reinstated the common law, which allows a remedy based on negligence for damages by trespassing cattle, and therefore, by implication, repealed the limitations for recovery placed on the owner of a motor vehicle injured by stock at large on a public highway as provided in Section 79, supra."

The Randle court had previously explained that

"[t]he doctrine established by the early statutes and decisions of this State, prior to more recent legislative enactments, was that the owner of livestock was not liable for damages for intrusions of stock on the lands of another. The burden was upon the landowner to fence stock out.
"Such has been the law since the formation of Alabama, for the laws of the Mississippi Territory, which were adopted by the State of Alabama at the formation of our State constitution, contain provisions in direct repugnance to the common law on this subject, and to the extent of this repugnance repealed the common law. Nashville & [Chattanooga] R.R. Co. v. Peacock, 25 Ala. 229 [ (1854) ].
".... In other words, we were an open range State."

Randle, 39 Ala. App. at 654-55, 107 So.2d at 909.

As the Randle court further explained, the 1939 act, which the court described as "a rather comprehensive stock law," changed Alabama to a "closed range" state, in part by providing that the owner of stock running at large was to be liable for damage to crops and other vegetation. Randle, 39 Ala. App. at 655, 107 So.2d at 909. In that same provision, which is now codified at § 3-5-3(a), the legislature provided for limited liability of livestock owners for damage incurred by to the owners or occupants of motor vehicles caused by stock if the owner of the stock had "knowingly or wilfully put or placed such stock upon such" roadway. This provision, the court noted, created a limited right to recover against the owner of livestock where none had before existed.

"As stated in 1 Am. Jur., 'Actions,' Section 12 : 'It is an established principle that if the statute creating a new right where none existed before provides, also, a valid remedy for the enforcement of the right created, the remedy thus given must be pursued in the enforcement of the right, to the exclusion of any other remedy, provided it is an adequate one.'
"If the limited remedy provided in Section 79 of the 1939 Act for the owner of motor vehicles for damages caused by stock at large on a public highway be deemed repealed by the 1951 Act, such repeal must result by implication because of repugnancy between the 1939 and the 1951 Acts. We cannot read any repugnancy between the two acts merely because the 1951 Act omits to create or enlarge the existing remedy provided in Section 79. Indeed, repeals of statutes by implication are not favored, and if the latter statute is not repugnant or inconsistent with the prior statute, it must be deemed to continue in full operative effect. See 18 Ala. Digest, Statutes, [Key No.] 158 and 159 for innumerable authorities. This being so, it is our conclusion that the owner of a motor vehicle suffering damage from stock at large is limited to the remedy provided by Section 79, supra."

Randle, 39 Ala. App. at 656, 107 So.2d at 910.

Although the contention is contained in their argument regarding the constitutionality of § 3-5-3(a), the Brewers contend that decisions like Randle and Scott v. Dunn, 419 So.2d 1340 (Ala. 1982), are incorrectly premised on the idea that, at the time of the enactment of our state constitution, Alabama was an "open range" state. Instead, the Brewers contend, the operative date should be 1975, when Alabama incorporated the common law of England at the time the legislature enacted the 1975 Code, and, thus, the Brewers say, Alabama common law at that time was in accordance with "closed range" principles; therefore, the Brewers argue, § 3-5-3(a) did not create a new right of recovery, but, instead, limited the common-law right to recover that obtained under the English common law and is therefore repugnant to Alabama law. Even were we inclined to agree with the Brewers, and we are not, we first note that this court is bound by the pronouncements of our supreme court, see Ala. Code 1975, § 12-3-16, which has always maintained that, insofar as livestock laws were concerned, until the 1939 act, Alabama followed the law of the Mississippi Territory, which was that livestock could range freely and that the burden was on a landowner to fence out livestock as opposed to being on the livestock owner to fence in his or her livestock. Scott, 419 So.2d at 1341-42. In addition, the Brewers' argument fails because, when Alabama adopted the English common law in the 1975 Code, it did so with the express proviso that it was adopted "so far as it is not inconsistent with the Constitution, laws and institutions of this state." Ala. Code 1975, § 1-3-1. Because § 3-5-3(a) existed as Title 3, Section 79, Ala. Code 1940 (Recomp. 1958) (or as Section 79 of the 1939 act), the English common law allowing for recovery in situations involving motor-vehicle collisions with livestock was inconsistent with existing Alabama law and was, therefore, not adopted.

Finally, we turn to the Brewers' argument that the failure of the Atkinsons to construct the fence containing Cow 64 in accordance with the statutory requirements for livestock fencing set out in §§ 3-4-3, 3-4-4, or 3-4-5 created a genuine issue of material fact regarding whether they "knowingly or willfully" allowed Cow 64 to pose a hazard. The Brewers appear to contend that, if the Atkinsons "acted consciously and with knowledge and awareness ... that the fencing was never in compliance with the law," they could be found to have knowingly or willfully allowed Cow 64 to roam. Of course, the Brewers appear to misconstrue what is required to prove that one has acted "knowingly or willfully."

Willfulness is not equivalent to wantonness. Lyons v. Walker Reg'l Med. Ctr., 868 So.2d 1071 (Ala. 2003). That is, proof that one had " 'knowledge and consciousness that the injury is likely to result from the act done or from the omission to act,' " Mazda Motor Corp. v. Hurst, 261 So.3d 167, 189 (Ala. 2017) (quoting Ex parte Dixon Mills Volunteer Fire Dep't, Inc., 181 So.3d 325, 333 (Ala. 2015) ), although sufficient to establish wantonness, is not sufficient to establish that one has acted willfully. To be sure, more recent cases have, in discussions of wantonness, discussed "willful and wanton" or "willful or wanton" conduct as if the two are simply interchangeable terms for the same level of culpability. See, e.g., Mazda Motor Corp., 261 So.3d at 188-93 (discussing the proof required to support a claim of wantonness); see also Ex parte Dixon Mills Volunteer Fire Dep't, 181 So.3d at 333 (discussing whether the defendant had engaged in "willful or wanton misconduct" under Ala. Code 1975, § 6-5-336(d)(2) ). However, we do not perceive these sometimes confusing statements as an intent to change the long-standing law governing the separate concepts of willfulness and wantonness.

"An approved definition of wantonness is the conscious failure of one charged with the duty to exercise due care and diligence, to prevent an injury after discovery of peril. Or, under circumstances where one is charged with the knowledge of such peril, and conscious that injury will likely, probably or inevitably result from his actions, or his failure to act, he does not take the proper precautions to prevent injury.
"To constitute 'willful or intentional injury,' there must be knowledge of danger accompanied with a design or purpose to inflict injury, whether the act be one of omission or commission. To constitute 'wantonness' the design may be absent if the act is done with knowledge of its probable consequence and with a reckless disregard of those consequences."

English v. Jacobs, 263 Ala. 376, 379, 82 So.2d 542, 544-45 (1955) ; see also Porterfield v. Life & Cas. Co. of Tennessee, 242 Ala. 102, 105, 5 So.2d 71, 73 (1941). Our supreme court has also discussed the distinction between an averment of "willful and wanton conduct" and an averment of "willful or wanton conduct." Dickey v. Russell, 268 Ala. 267, 270, 105 So.2d 649, 651 (1958). The Dickey court explained that to support a claim of "willful and wanton" conduct a plaintiff must present proof of "willfulness or design or purpose," while to support a claim of "willful or wanton" conduct, a plaintiff must present proof of only wantonness. Dickey, 268 Ala. at 270, 105 So.2d at 651.

Section 3-5-3(a) requires knowing or willful conduct on the part of the livestock owner. That is, it requires proof that the livestock owner had a design or purpose to inflict injury. Thus, even proof that the Atkinsons acted wantonly, i.e., that they were conscious of the danger of Cow 64 wandering free because of the allegedly defective fence, is insufficient to establish liability under § 3-5-3(a).

In addition, § 3-5-3(a) requires proof not only that the owner acted knowingly or willfully, but also that he or she "put or placed such stock upon such public highway." See Carpenter v. McDonald, 495 So.2d 640, 641 (Ala. 1986) (stating that a livestock owner is not liable to the owner or occupant of a motor vehicle "unless the owner knowingly or wilfully puts the livestock on the road"); Chandler v. Waugh, 290 Ala. 70, 74, 274 So.2d 46, 49 (1973) (stating that liability to the owner or occupant of a motor vehicle arises under § 3-5-3(a)"only where the owner or keeper knowingly or wilfully placed or put the livestock on the highway, road or street"); and Carter v. Alman, 46 Ala. App. 633, 635, 247 So.2d 676, 677 (Civ. 1971) (indicating that liability under the predecessor statute to § 3-5-3(a) arises only when the owner puts or places livestock on the roadway). The facts of Carter are quite similar to those of the present case. The plaintiff in Carter presented evidence indicating that the livestock owner's cows were often "out of his pasture, and that the fence was of insufficient height to properly contain his cattle." Carter, 46 Ala. App. at 635, 247 So.2d at 677. This court explained that, "for recovery, a motorist must submit proof that the owner of the feasant beast placed or put it upon the highway with a 'designed set purpose, intention, or deliberation.' Evidence of negligence or gross carelessness is not enough." Id. We concluded that the plaintiff in Carter had not met her burden of providing evidence establishing that the livestock owner had put or placed his errant cow on the roadway. Id. Similarly, the Brewers have presented no evidence establishing that the Atkinsons placed or put Cow 64 on the highway. Thus, the Brewers failed to present evidence creating a genuine issue of material fact, and we affirm the summary judgment in favor of the Atkinsons.

AFFIRMED.

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

      The Brewers included fictitiously named parties in their complaint, but the record does not reflect that the complaint was ever amended to substitute any actual parties for the fictitiously named parties; thus, no parties other than the Atkinsons were served with the complaint, and the existence of the fictitiously named parties in the complaint does not prevent the judgment entered by the trial court from being final. See Rule 4(f), Ala. R. Civ. P.; Griffin v. Prime Healthcare Corp., 3 So.3d 892 n.1 (Ala. Civ. App. 2008).

      Section 3-5-3(a) reads, in pertinent part, as follows:
      "[T]he owner of any stock or animal shall not be liable for any damages to any motor vehicle or any occupant thereof suffered, caused by or resulting from a collision with such stock or other animal, unless it be proven that such owner knowingly or wilfully put or placed such stock upon such public highway, road or street where such damages were occasioned."
      We note that the Brewers have not raised on appeal the argument that § 3-5-3(a) does not apply to keepers of livestock. See Chandler v. Waugh, 290 Ala. 70, 74, 274 So.2d 46, 49 (1973) (indicating that the predecessor statute to § 3-5-3 applied to an "owner or keeper of stock").

      Thus, the Ex parte Dixon Mills Volunteer Fire Department court properly discussed whether the evidence supported a claim of wantonness and omitted discussion of willfulness in concluding that the volunteer defendant's actions were not "willful or wanton." 181 So.3d at 335.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Rosalyn M. CAPLAN v. Patty BENATOR and Linda Fleet
    2160904
    Court of Civil Appeals of Alabama.
    March 16, 2018
    Michael G. Strickland of Strickland & Kendall, LLC, Montgomery, for appellant.
    Jack Owen of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellee Patty Benator; and John W. McClurkin of Vernis & Bowling of Southern Alabama, LLC, Mobile, for appellee Linda Fleet.
   THOMPSON, Presiding Judge.

Rosalyn M. Caplan instituted this tort action against Patty Benator and Linda Fleet ("the daughters"), the executors of the estate of their late father, Edgar K. Simon, Jr., in connection with conduct that occurred in the days and weeks after Simon died. After a trial in the Montgomery Circuit Court ("the trial court"), a jury returned a verdict in favor of Caplan and awarded her $1 in damages. The trial court entered a judgment on the jury's verdict, and Caplan appeals.

The evidence adduced at trial indicates the following. Caplan, who was 93 years old at the time of the trial, testified that she had been in a romantic relationship with Simon for about 14 years. Caplan and Simon lived together at Simon's house ("the house") in Montgomery for approximately ten years before his death in 2015. Caplan had no ownership interest in the house.

Simon executed a will ("the will") on June 2, 2009. Among other things, the will provided:

"At the time I make this Will, I currently own [the house] and all contents located therein .... If I own such at the time of my death, I hereby will, devise and bequeath [the house] and all contents therein and all insurance thereon, to my two surviving children, in equal shares, share and share alike, subject to the holdover period provided herein. Provided she is living in [the house] at the time of my death, I give and grant to my friend, Rosalyn Caplan, the right to live and remain in [the house] for a period of ninety (90) days following my death. During such time, she shall be allowed to continue to occupy and continually occupy [the house] for a period of ninety (90) days and enjoy the contents therein.
"During said holdover period, Rosalyn Caplan shall not be responsible for any cost, maintenance, repair or upkeep of [the house]. She shall not be responsible for the payment of any insurance or any ad valorem taxes assessed against [the house].
"....
"Upon vacating [the house] Rosalyn Caplan shall notify my Executors, in writing, at which time all right, title, and interest in and to [the house] along with its beneficial use shall pass immediately to my surviving children, in equal shares, share and share alike."

Simon appointed the daughters as the executors of his will. The will "authorize[s] and empower[s] my Executors and each Executor to exercise all powers as are granted to my Trustee and to make all distributions that the Trustee is permitted to make under this Will, regardless of whether or not any trust authorized by this Will shall have then become operative."

Regarding the powers of the trustee, the will states:

"A. "Without limitation of the powers conferred by statutes or general rules of law, the Trustee shall have the following powers and authorities, in addition to others now or hereinafter conferred by law with respect to any property or rights held by each trust:
"....
"(d) To sell, transfer, assign and convey any of the property of the trust or any interest therein, or to exchange the same for other property, in a public or private sale or transaction, for such price or prices and upon such terms and conditions as in its absolute discretion and judgment may be deemed for the best interest of the trust and the beneficiaries hereunder, and to execute and deliver any deeds or conveyances (with or without warranty), receipts, releases, contracts, leases, subleases, assignments, transfers or other instruments necessary or appropriate in connection therewith;
"....
"(f) To make all repairs and improvements at any time deemed necessary or proper to and upon real estate and any buildings or improvements situated thereon ...;
"....
"(m) To appoint, employ, remove and compensate such accountants, attorneys, agents, ... and representatives, ... as the Trustee deems necessary or desirable for the administration of the trust ...;
"....
"(t) To do all other acts which in the Trustee's judgment are necessary or desirable, for the proper and advantageous management, investment and distribution of any of the trusts;
"....
"C. The powers herein granted to the Trustee may be exercised in whole or in part, from time to time, and shall be deemed to be supplementary to and not exclusive of the general powers of trustees pursuant to law, and shall include all powers and authority reasonably necessary to carry the same into effect."

In April 2015, Simon, who had been diagnosed with cancer, was under hospice care. Caplan notified the daughters that Simon's death was imminent, and the daughters and their husbands arrived at the house on April 21, 2015. Simon died in the early morning hours of April 22, 2015.

Caplan testified that, on the day Simon died, Fleet asked Caplan to give her the joint credit card that Caplan had with Simon. Caplan said the card had been used for joint expenses such as groceries and that Simon had paid the credit-card bill each month. At Fleet's request, Caplan said, she also gave Fleet the extra set of car keys to Simon's automobile. Caplan had her own vehicle. On the day Simon died, Caplan also enabled Fleet to see Simon's accounts on the computer. Caplan said that the daughters also began removing "things" from the walls and putting things in boxes.

Benator testified that, on April 25, 2015, four days after Simon had died, she received a telephone call from Caplan's son, Stan Caplan ("Stan"), who lived in San Diego. The next day, Benator said, she received an e-mail from Stan, who was following up on the telephone conversation. The e-mail read, in part: "You and your family are not welcome to visit [the house] and are formally noticed not to communicate directly with my mother. In the event of an emergency, you may contact me." Benator testified that Stan was the intermediary between Caplan and the daughters.

The daughters next came to the house on April 29, 2015, accompanied by an attorney and a real-estate agent. Caplan acknowledged that that visit had been arranged before the daughters arrived and that she was agreeable to that visit. She said that she believed that Stan had made the arrangements. Caplan said that she had no interaction with the daughters that day; she spoke only with the attorney. She also agreed that no one threatened or harassed her on that day. The real-estate agent did a walk-through of the house to assess the house and to see what repairs might be needed. Benator said the visit lasted 30 minutes at the most.

Benator and her daughter, Jaime, returned to the house on May 14, 2015. Caplan testified that she was aware they were coming to the house that day so that Jaime could see the contents of the house, but she did not recall how she learned Benator and Jaime were coming. Caplan was aware that, after she vacated the house, Jaime was going to take some of Simon's furniture and household items for her apartment. Once again, Caplan testified that she was agreeable to that visit.

However, at that visit, Benator took silverware from the house, which upset Caplan. Caplan explained that, at the time of Simon's death, she and Simon had been using the silverware that had been kept in a vault until about five or so years before. Caplan said that they had discarded the "old silver" Simon had had for about 35 years or so. However, when Benator and Jaime came to the house on May 14, 2015, Caplan said, Benator took the silverware and "ran out the door." Caplan said that she had asked Benator not to take the silverware because she was using it. The evidence was undisputed that there was other silverware in the house that Caplan could use. Caplan also conceded that she knew the silverware Benator took from the house had belonged to Simon's wife, the daughters' mother. The silverware was engraved with the initials of the daughters' mother. After Benator left with the silverware, Caplan notified the police, but she did not execute a warrant.

Caplan said that she had no communications with the daughters between the time Benator left the house on May 14, 2015, and when the daughters next came to the house on June 8, 2015. Caplan also testified that, during that period, she had had no problems with her heart other than what she called her "usual complications," which included angina. Caplan also testified that she "had a problem" with her heart and began seeing a cardiologist in 2005. As a result of her heart problems, Caplan said, she takes "a lot of medication" and has to exercise.

However, Caplan said, on June 8, 2015, she was awakened by the sound of keys in the door. She said that she believed someone was breaking into the house. Caplan said that she went into the kitchen and saw the daughters "trying to break in my house." She added that she saw Fleet at the back door and Benator "running all around the house, trying all the doors and windows." She said that she did not let the daughters in the house because, she said, she "did not want to be bothered or disturbed or made sick."

Caplan testified that, even after she recognized the daughters, she felt panic and was scared. She said that she could feel her blood pressure rising. She said that the daughters saw her, and she indicated to them that she was calling the police. Caplan testified that the daughters told her "in a very menacing way" that they would be back to the house, and they left.

Benator testified that the daughters had arranged to come to the house on June 8, 2015, to meet with an estate-sale representative. An e-mail from the daughters to Caplan dated June 4, 2015, a copy of which was sent to Stan, informed Caplan that they would be in Montgomery on June 8 and needed access to the house. Benator explained that the daughters, both of whom lived in Atlanta, would be passing through Montgomery that day on their way home from a memorial held for their father at the beach. In the e-mail, the daughters suggested that they visit the house about 2:30 or 3:30 that afternoon, adding that they wanted "to make this as convenient as possible." A few minutes after that e-mail was sent, Benator said, she received an e-mailed response from Stan, copies of which were sent to Fleet and an attorney working with the daughters, that said: "You're not allowed on the property. The police will be called the moment you trespass." Benator said that the tenor of the e-mails that were exchanged leading up to the daughters' arrival at the house on June 8, 2015, was the same.

Benator testified that the daughters arrived in Montgomery early, about 11:00 or 11:30 a.m., and decided to just drive past the house and then have lunch before going to the house to meet the estate-sale representative. When they drove by the house, Benator said, they noticed that the vehicle of the driver who sometimes assisted Simon and Caplan was in the driveway and that Caplan's vehicle was not in the garage, so they stopped. They went to the side door that they had always used and rang the doorbell, Benator said. No one answered, and they knocked on the door. When no one answered, Benator said, they decided to start Simon's automobile, which was in the garage and had been sitting idle for several weeks. The garage door was locked, Benator said, adding that she had not known that door to be locked in 40 years. She had difficulty putting the key in the lock, Benator said, and the door would not open. Stan had not responded to the daughters' request for a time when Caplan would be moving, she said, so they thought perhaps Caplan had already moved. The furniture Simon had kept on the patio was not there, and they looked in the windows of the den to see whether Caplan's furniture was gone. Benator said that she then tried her key in the side door, and, again, her key would not work. After trying her key in the front door and discovering that that did not work either, Benator said, the daughters realized that the locks to the house had been changed. As the daughters went back around the house toward their vehicle, Benator said, she saw Caplan through the window, standing by the back door with her arms crossed. When Caplan did not make an effort to let them in, Benator said, Benator told her they would be back, and the daughters left.

Before the daughters returned to the house to meet the estate-sale representative, Benator testified, they contacted the Montgomery Police Department to explain their presence and asked if an officer could accompany them to the house. Two officers met them at the house, she said. Benator disputed Caplan's testimony that Caplan rode up to the house after they had already arrived. Instead, Benator said, Caplan was already in the house and the driver was leaving when the daughters arrived at the house. Benator testified that one of the officers knocked on the door and Caplan said that the daughters were not allowed in the house. After a discussion with the officers, Fleet and the estate-sale representative were permitted to enter the house, but Benator was not allowed inside. Fleet and the representative left the house within 30 minutes, Benator said, and the police officers stayed at the house the entire time. Benator said that, while she was there, paramedics were called to care for Caplan, checked Caplan's vital signs, and then left. That was the last time the daughters visited the house while Caplan lived there.

On cross-examination regarding the June 8, 2015, visit, Caplan testified that she understood that the daughters could come into the house. However, she said, they could have waited 90 days, until she left the house. Caplan questioned why the daughters would come to the house when, she said, they knew she did not want company. After the daughters initially came to the house on June 8, 2015, Caplan testified, she called Stan, who told her to obtain a restraining order. She contacted her driver, who took her to the police department. After seeing the police, Caplan told the driver she needed to go home because she was having chest pains and was feeling weak. She said: "[I]t was the usual symptoms, only worse." When Caplan arrived at the house, she said, she saw police officers in her driveway and the daughters were at the house with a man Caplan apparently did not recognize. The police informed Caplan that the daughters had a court order to enter the house to take photographs of the contents of the house. Caplan said that she allowed Fleet to go in the house. Meanwhile, paramedics were called to check on Caplan. She did not go to the hospital at that time.

After the daughters left the house, Caplan said, she called her son and her own daughter. Caplan's daughter arrived in Montgomery the next day. On June 10, 2015, an attorney came to the house to help Caplan obtain a restraining order against the daughters. That night, Caplan said, paramedics were called to the house. Caplan said that she refused to go to the hospital initially, but, when paramedics had to be called a second time that night, she was taken to the hospital where she was diagnosed as having had a heart attack. Caplan was treated and released from the hospital about five days later. She testified that she was "really not the same person" after the heart attack. She described the difficulties she had immediately after the heart attack. She also said that, since she moved to Birmingham, she has been able to drive within a certain area.

Dr. Forrest Flemming, the cardiologist who treated Caplan, testified by means of a video deposition. In his deposition, Dr. Flemming said that it was his opinion that a combination of things led to Caplan's heart attack, including the stress brought about by Simon's death, her imminent move, her poor health, and the daughters' visits to the house, which, he said, "was the straw that broke the camel's back, as it were." Even Caplan's own attorney's visit to the house after the daughters' June 8, 2015, visit could have been a contributing cause of the heart attack, Dr. Flemming said. He added that he could not say which event, if any, caused the heart attack. He also stated: "I would not say that this event [the daughters' June 8, 2015, visit to the house] on its own did this" and "[a]s far as I know, and all of my-all the evidence was she was going to have a heart attack at some point."

When Caplan was asked whether she was requesting that the jury award her money damages, Caplan replied: "I want justice, justice. And the money damages, that's up to y'all."

In her complaint against the daughters, Caplan alleged claims of trespass, negligent breach of fiduciary duties, wanton breach of fiduciary duties, negligence, and wantonness based on the events described above. Before the trial began, the trial court entered a summary judgment in favor of the daughters on the trespass claims. After hearing the trial testimony, the trial court declined to charge the jury regarding wantonness, wanton breach of fiduciary duties, and punitive damages. The jury returned a general verdict in favor of Caplan on the claims of negligence and negligent breach of fiduciary duties and awarded her compensatory damages in the amount of $1. The trial court entered a judgment on the verdict and denied Caplan's motion for a new trial, which was based in part on the ground of inadequate damages. Caplan appealed the judgment to our supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

On appeal, Caplan first contends that the trial court erred in denying her request for a new trial based on what she said were inadequate damages. She asserts that the award of $1 in damages was inadequate compensation for her injuries and was inconsistent with the jury's determination that the daughters were liable to her for their conduct.

"In Alabama, jury verdicts are presumed to be correct and that presumption of correctness is further strengthened by a trial court's denial of a motion for new trial. The appellate court reviews the tendencies of the evidence most favorable to the prevailing party and indulges such inferences as the jury was free to draw. Accordingly, when a judgment is based on a jury verdict, it will not be reversed unless it is plainly and palpably wrong. Ashbee v. Brock, 510 So.2d 214 (Ala. 1987)."

Dennis v. Lewis, 621 So.2d 301, 303 (Ala. Civ. App. 1993).

" ' "When reviewing a motion for new trial on the grounds of inadequate damages, the reviewing court must consider whether the verdict is so opposed to the clear and convincing weight of the evidence as to clearly fail to do substantial justice, and whether the verdict fails to give substantial compensation for substantial injuries. Orr v. Hammond, 460 So.2d 1322 (Ala. Civ. App. 1984). In addition, the reviewing court must keep in mind that a jury verdict is presumed to be correct and will not be set aside for an inadequate award of damages unless the amount awarded is so inadequate as to indicate that the verdict is the result of passion, prejudice, or other improper motive. Orr v. Hammond, supra. ' "
" Wells [v. Mohammad ], 879 So.2d 1188, 1194 (Ala. Civ. App. 2003) (quoting Helena Chem. Co. v. Ahern, 496 So.2d 12, 14 (Ala. 1986) )."

412 S. Court St., LLC v. Alabama Psychiatric Servs., P.C., 163 So.3d 1020, 1029 (Ala. Civ. App. 2014).

Caplan argues that the jury's award of $1 was inadequate to compensate her for what she says are her "uncontradicted special damages," as well as for her pain and suffering. In her complaint, Caplan alleged that the daughters were the proximate cause of her heart attack, and she sought damages for physical, emotional, and mental injuries that she claimed she suffered as a result of what she says was the daughters' wrongful conduct. She contends that, because the jury found the daughters' liable, it was required to award her monetary damages for her injuries. The daughters' contention throughout the trial and on appeal has been that their actions were not "wrongful" and, further, that they were not the proximate cause of Caplan's heart attack.

Once a defendant's liability is determined, Alabama law requires that the jury's assessment of damages include, at least, an amount sufficient to compensate the plaintiff for his or her uncontradicted special damages, as well as a reasonable amount of compensation for pain and suffering. Paschal v. Nixon, 646 So.2d 110, 111 (Ala. Civ. App. 1994). However, the cases that Caplan cites in support of her argument that the damages awarded to her were inadequate all involve specific events, such as motor-vehicle accidents, in which the proximate cause of the plaintiffs' injuries was clear. See, e.g., Daniel v. Adkins, 676 So.2d 346 (Ala. Civ. App. 1996) (holding that, after a motor-vehicle accident, an award of $1,000 was deemed inadequate when undisputed evidence showed damages of approximately $9,000); Jones v. Butts, 646 So. 2d 104 (Ala. Civ. App. 1994) (plaintiff had been in a motor-vehicle accident and had sustained stipulated damages of $8,700; thus, $1 award was held to be inadequate).

This case is distinguishable from the cases Caplan cites, however, because the proximate cause of her injury, i.e., the heart attack, was in dispute. Even if, as the jury found, the daughters acted negligently, it does not necessarily follow that their negligence caused Caplan's injury.

"It is ... axiomatic that a jury is entitled to award nominal damages in those cases where no causal connection can be found between the damages suffered and the duty breached. Benson v. Vick, 460 So.2d 1309 (Ala. Civ. App. 1984) ; Williams v. Clark, 50 Ala. App. 352, 279 So.2d 523 (1973)."

Courtesy Ford Sales, Inc. v. Hendrix, 536 So.2d 88, 90 (Ala. Civ. App. 1988). Additionally, "[i]t is peculiarly within the province of the jury to resolve conflicts regarding the proximate consequences of a defendant's negligence. Youngblood v. Thornton, 576 So.2d 229 (Ala. 1991)." Dennis v. Lewis, 621 So.2d at 304.

In this case, Caplan suffered a heart attack two days after her last contact with the daughters. Undisputed evidence indicated that Caplan had suffered from a heart condition for years before Simon's death. Her cardiologist, Dr. Flemming, testified that he could not say which of the many recent stressful events in Caplan's life, if any, caused her heart attack. He also stated: "I would not say that this event [the daughters' June 8, 2015, visit to the house] on its own did this" and "[a]s far as I know, and all of my-all the evidence was she was going to have a heart attack at some point."

After reviewing the record, we conclude that, based on the evidence presented, the jury reasonably could have determined that, although the daughters acted negligently in dealing with Caplan, Caplan failed to prove that their negligence was the proximate cause of her heart attack. Accordingly, the trial court did not err in denying Caplan's motion for a new trial based on the inadequacy of the damages awarded to her.

Caplan also argues that the trial court erred in entering a summary judgment in favor of the daughters as to her claim of trespass. Specifically, she argues, the trial court erred in determining that, as a matter of law, executors of an estate have a "right to interfere with the possession of another estate beneficiary without express or implied authority."

In support of her argument, Caplan states that Simon's will gave her the right to "exclusive" possession of the house and its contents for 90 days after Simon's death. Although the trial court did not set forth its basis for entering the summary judgment on the trespass claim, in denying Caplan's request for a preliminary injunction in this matter, the trial court found that

"the right of use and occupancy of [the house] and contents granted to plaintiff Caplan is not exclusive, and it is clear from a reading of other portions of Mr. Simon's will that [the daughters], as appointed personal representatives of the Estate of Edgar K. Simon, Jr., have duties attendant to the repair, maintenance and upkeep of the premises, as well as general rights and duties attendant to their appointment as personal representatives, which justify their presence in and upon the said premises from time to time."

To resolve this issue, we must determine Simon's intent in granting Caplan the right to remain in the house for 90 days after his death, which requires us to apply the following standard.

"When the resolution of an appeal turns on the construction of a will, we apply a de novo standard of review. See Harrison v. Morrow, 977 So.2d 457, 459 (Ala. 2007).
" ' "The law in Alabama regarding the interpretation of wills is well settled:
" ' " '[T]he intention of the [testator] is the law of the will, which the court should consider as a whole, giving effect to each provision where it is possible to do so; it is the court's duty to carry out the [testator]'s intention where that intent can be ascertained. To determine the intent of a testator or testatrix, the court must look to the four corners of the instrument, and if the language is unambiguous and clearly expresses the testator's or testatrix's intent, then that language must govern. Galin v. Johnson, 457 So.2d 359 (Ala. 1984). Where a will contains ambiguous or doubtful expressions, it is the duty of the court to determine what the testator or testatrix intended. Brittain v. Ingram, 282 Ala. 158, 209 So.2d 653 (1968).' "
" ' Barnett v. Estate of Anderson, 966 So.2d 915, 918 (Ala. 2007). "A document is unambiguous if only one reasonable meaning emerges." Kershaw v. Kershaw, 848 So.2d [942] at 951 [ (Ala. 2002) ]. '
" Scholl v. Stacy, 981 So.2d 1116, 1120 (Ala. 2007)."

McKnight v. Way, 58 So.3d 810, 815 (Ala. Civ. App. 2010).

As to the terms of Simon's will, we first note that, contrary to Caplan's contention, no language in the will gives Caplan an "exclusive" right to occupy the house. In reading the will as a whole, it appears that Simon contemplated that the daughters would have to carry out their duties as executors of the will during the 90 days Caplan was permitted to remain in the house. For example, in the will, Simon explicitly stipulated that, "[d]uring said [90-day] holdover period, Rosalyn Caplan shall not be responsible for any cost, maintenance, repair or upkeep of [the house]." Those tasks were explicitly delegated to the daughters, however. The will authorizes the daughters "[t]o make all repairs and improvements at any time deemed necessary or proper to and upon real estate and any buildings or improvements situated thereon." It makes no sense that the daughters would be responsible for the maintenance and upkeep of the house but would not be permitted into the house during the "holdover period."

The daughters, as the executors of the estate, also were given the responsibility of working with agents and representatives involved in the sale of the house and its contents. The will specifically gave them "all powers and authority reasonably necessary to carry the same into effect." The house was not put on the market and its contents were not placed up for sale before Caplan vacated the house. However, the trial court could have found that, in preparation for such acts, it was necessary for the daughters to meet with the real-estate agent and the estate-sale representative and allow those people to assess the inside of the house and its contents. Accordingly, the trial court could have determined that they had to be able to enter the house to fulfill their obligations.

Furthermore, in her appellate brief, Caplan seems to suggest that the daughters were attempting to take possession of the house before the 90-day "holdover period" ended. She cites § 43-2-837, Ala. Code 1975, for the proposition that an executor "shall take possession of the decedent's property" "[except] as otherwise provided by the decedent's will." She also cites Self v. Roper, 689 So.2d 139, 141 (Ala. Civ. App. 1996), for the proposition that a "personal representative is generally not in possession or control of the real property." The language Caplan quoted from Self is set forth in a discussion of the fee to which a personal representative is entitled for the administration of an intestate decedent's estate. Noting that "the personal representative is entitled to a percentage 'of the value of all property received and under the possession and control of the personal representative,' " this court went on to explain that, "[u]nlike personal property, the intestate decedent's real property devolves to the decedent's heirs. That is, the personal representative is generally not in possession or control of the real property." Self, 689 So.2d at 141 (quoting § 43-2-848(a), Ala. Code 1975 ). A review of Self shows that it has no application to this matter.

There is no evidence in the record that the daughters intended to occupy the house before the 90 days had expired or that they ever requested that Caplan move from the house before the 90 days expired. The daughters emphasize that, in requesting access to the house with a real-estate agent on April 29, 2015, and an estate-sale representative on June 8, 2015, they were attempting to carry out their obligations under the terms of the will. In her brief on appeal, Caplan concedes that there is no Alabama authority that prohibits the executors of an estate from entering the testator's residence while carrying out their duties under the will.

In considering the will in its entirety and the unambiguous language contained in the will, we conclude that Simon gave the daughters, as executors of his will, the power and authority to enter the house as necessary to effectuate the terms of the will. There is absolutely no language contained in the will that supports Caplan's position that she had exclusive control over the house and its contents during the 90-day "holdover" period or that Caplan had the legal right to prevent the daughters from entering the house to carry out their obligations under the will. Additionally, we note that Caplan had given her permission for the daughters to enter the house on April 29, 2015, and on May 14, 2015. Benator did not enter the house on the June 8, 2015, visit, and, after discussions with police officers, Caplan permitted Fleet to enter the house on June 8, 2015.

Furthermore, Caplan has cited no legal authority that would permit her to prohibit the daughters from entering the house to carry out their duties. Because in the will Simon gave the daughters, in their roles as executors, the express authority to meet with the real-estate agent and the estate-sale representative at the house, we cannot say that the trial court erred in entering a summary judgment in favor of the daughters as to Caplan's trespass claim.

Caplan next contends that Alabama should recognize the "fiduciary exception" to the attorney/client privilege. Specifically, she maintains that the daughters should not have been able to assert the attorney/client privilege "as protection from discovery of their communications with the Estate's attorneys."

The daughters hired the law firm of Hartley & Hartley to represent the estate. An attorney for that firm ("the attorney") accompanied with the daughters to the house on April 29, 2015. During the course of the litigation in this matter, Caplan sought to subpoena the attorney's files regarding his representation of the estate, and the daughters objected. One of the grounds Caplan raised in arguing that she was entitled to the attorney's files was that the daughters, in their role as executors, were representatives of the beneficiaries of Simon's estate and were therefore consulting the attorney not only on their own behalf but on behalf of all of the beneficiaries under Simon's will. Therefore, Caplan argued, the daughters should not be able to claim privilege against Caplan, a beneficiary, as to their communications with the attorney. The daughters argued, correctly, that, unlike some jurisdictions, Alabama does not recognize the fiduciary exception to the attorney/client privilege.

On August 18, 2015, the trial court entered an order quashing the subpoena for the attorney's files. In doing so, the trial court acknowledged the absence of controlling authority as to this issue, but concluded

"that the weight of authority in Alabama is to the effect that when the personal representative employs an attorney to advise on estate matters, the attorney's client is the personal representative and none other. Furthermore, no exception is delineated in Rule 502 Alabama Rules of Evidence which would abrogate the privilege in this instance."

Alabama already recognizes an exception to the attorney/client privilege that is tangentially related to the fiduciary exception Caplan seeks. Rule 502(d)(2), Ala. R. Evid., provides that, "[a]s to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction," there is no attorney/client privilege. In his treatise on Alabama evidence, Dean Charles Gamble has explained that, under the Rule 502(d)(2) exception,

"[w]hen the respective claims of all parties to the litigation arise through the same deceased client, no privilege may be raised as to communications between that client and the client's attorney. This exception finds its most common application in cases where the parties claim under the same will or in intestate succession."

II Charles W. Gamble and Robert J. Goodwin, McElroy's Alabama Evidence § 388.06(2) (6th ed. 2009)(footnote omitted).

In her appellate brief, Caplan does not explain the purpose for wanting to know the substance of the communications between the daughters and the attorney. The gravamen of her argument is that executors hold a fiduciary position as to the beneficiaries of a will and, as a result, the executors should not be able to claim privilege against beneficiaries when seeking legal counsel in connection with their fiduciary duties. This action does not involve a challenge to the will or a claim under the will, which, under certain circumstances would be subject to the Rule 502(d)(2) exception. Instead, this case is about Caplan's belief that the daughters acted improperly toward her after Simon's death, causing her to have a heart attack, and her request for damages based on her negligence claims.

In her brief on appeal, Caplan does not explain to this court what she hoped to learn from the communications between the daughters and the attorney that would be relevant to this action. In other words, Caplan does not explain how the fiduciary exception to the attorney/client privilege that she wants us to adopt would be applicable to her claims.

Rule 26(b)(1), Ala. R. Civ. P., provides, in relevant part:

"Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter."

(Emphasis added.)

Because Caplan has not explained how the communications between the daughters and the attorney for the estate would be relevant to this action, this court is of the opinion that this is not the proper case in which to recognize a fiduciary exception to the attorney/client privilege or to expand on the exception already provided by Rule 502(d)(2). We therefore decline to accept Caplan's invitation to recognize such an exception.

Because it is undisputed that Alabama does not currently recognize a fiduciary exception to the attorney/client privilege, see Rule 502(d), Ala. R. Evid., based on the arguments and the record before this court, we will not hold the trial court in error for refusing to allow Caplan to have access to the communications between the daughters and the attorney under the circumstances involved in this action.

Finally, Caplan argues that the trial court erred in refusing to charge the jury on wantonness, wanton breach of fiduciary duty, and punitive damages. Therefore, she says, a new trial is warranted in this matter.

Rule 51, Ala. R. Civ. P., provides, in pertinent part:

"No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless that party objects thereto before the jury retires to consider its verdict, stating the matter objected to and the grounds of the objection."

Thus, to preserve her arguments for appeal that the trial court erred in refusing to give certain instructions to the jury, Caplan was required to have: "(1) objected before the jury retired to consider its verdict; (2) stated the matter that [s]he was objecting to; and (3) supplied the grounds for [her] objection." Ware v. Timmons, 954 So.2d 545, 558 (Ala. 2006). Our review of the trial transcript indicates that Caplan did not object to the trial court's refusal to instruct the jury on wantonness, wanton breach of fiduciary duty, or punitive damages and did not contend in any manner that the trial court should have given any additional instructions. As a result, she has waived her contention that the trial court erred with regard to the jury instructions.

Caplan has failed to demonstrate that the trial court erred to reversal in entering a summary judgment on her trespass claim and in denying her motion for a new trial. After reviewing the record and considering the arguments made on appeal, we conclude that the judgment entered on the jury's verdict in favor of Caplan and the award to her of $1 in damages is due to be affirmed.

AFFIRMED.

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

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


author: MOORE, Judge.

text:
    ALABAMA MEDICAID AGENCY v. Melissa Joelle BROOKS and Cynthia Danielle Martin, as personal representatives of the estate of Melissa Daniel Driver, deceased
    2170286
    Court of Civil Appeals of Alabama.
    March 16, 2018
    Steve Marshall, atty. gen., and Matthew J. Ward, asst. atty. gen., Alabama Medicaid Agency, for appellant.
    Jeffrey McLaughlin of McLaughlin & Edmondson, LLC, Guntersville, for appellee.
   MOORE, Judge.

The Alabama Medicaid Agency ("Medicaid") appeals from a judgment, entered by the Marshall Circuit Court ("the circuit court"), dismissing its appeal from a judgment of the Marshall Probate Court ("the probate court") that denied its claim against the estate of Melissa Daniel Driver ("the estate"), who is deceased. We reverse the circuit court's judgment.

Procedural History

Health Management Systems, which works on behalf of Medicaid in its estate recovery efforts, filed in the probate court a claim, pursuant to Ala. Code 1975, § 43-2-354, against the estate in the amount of $44,978.10. On June 20, 2016, the probate court entered a judgment denying Medicaid's claim. On July 17, 2016, Medicaid electronically filed in the circuit court a document entitled "The Alabama Medicaid Agency's Appeal from the Marshall County Probate Court's Order on Contest of Claims," purporting to appeal to the circuit court for a trial de novo. See § 43-2-354. Medicaid named as "respondents" Melissa Joelle Brooks and Cynthia Danielle Martin, in their capacity as "co-executrixes" of the estate.

On September 6, 2016, Medicaid filed against the estate an application for the entry of default and a motion for a default judgment. That same day, the circuit-court clerk issued an entry of default. On September 8, 2016, the estate filed a motion to set aside the entry of default and also moved to strike Medicaid's appeal and to dismiss the appeal. On October 24, 2016, the circuit court set aside the entry of default, denied the application for a default judgment, and dismissed the appeal. With regard to dismissing the appeal, the circuit court reasoned that, because a notice of appeal cannot be electronically filed, see Rule 5, Ala. R. Civ. P., and Administrative Policies and Procedures for Electronic Filing in the Civil Divisions of the Alabama Unified Judicial System, the circuit court lacked subject-matter jurisdiction over Medicaid's appeal.

On November 22, 2016, Medicaid filed a postjudgment motion; that motion was denied on December 13, 2016. On January 17, 2017, Medicaid filed its notice of appeal to the Alabama Supreme Court; that court subsequently transferred the appeal to this court after determining that the case was within this court's appellate jurisdiction.

Discussion

In its judgment dismissing the appeal, the circuit court relied on this court's decision in Alabama Department of Revenue v. Frederick, 166 So.3d 123 (Ala. Civ. App. 2014). In Frederick, the Alabama Department of Revenue attempted to perfect its appeal from an adverse judgment entered by the Jefferson Circuit Court by filing a notice of appeal electronically in that court. Rule 3(a)(1), Ala. R. App. P., provides, in pertinent part, that an appeal from a judgment entered in a civil case may be taken "by filing a notice of appeal with the clerk of the trial court." In Frederick, this court determined that the "Administrative Policies and Procedures for Electronic Filing in the Civil Division of the Alabama Unified Judicial System" document ("the electronic-filing policy manual") does not allow electronic filing of a notice of appeal. 166 So.3d at 125. This court dismissed the appeal on the ground that the electronic filing of a notice of appeal has no legal effect. Id.

In this case, Medicaid appealed to the circuit court from an adverse judgment of the probate court regarding its claim against the estate. Section 43-2-354 governs such appeals and provides:

"The personal representative of the estate of a decedent may give notice in writing to the claimant or anyone having a beneficial interest in a claim against the estate that such claim is disputed in whole or in part; if in part, specifying the part disputed. Thereupon the judge of the court having jurisdiction of the administration of the estate shall, on written application of either the personal representative or the claimant, hear and pass on the validity of such claim, or part thereof, first giving 10 days' notice of such hearing to the interested parties. If the claimant in such proceeding shall fail to recover upon the disputed part of such claim, he shall be taxed with the costs thereof. This section shall not apply to claims against estates declared insolvent. If the judgment on any such claim is rendered by a probate court, either party may, within 30 days after the rendition of such judgment, appeal to the circuit court of the county in which the administration of said estate is pending, and the trial of the validity of said claim in said circuit court shall be de novo, and upon demand of either party, filed in the circuit court within 30 days from the taking of said appeal, shall be tried by a jury. If the administration of an estate in which a claim is disputed is pending in the circuit court, the trial of the validity of said claim shall be by jury upon demand of either party filed within 30 days after written notice that the claim is disputed. In any event either party may appeal to the supreme court or court of civil appeals, as the case may be, from the judgment of the circuit court, such appeal to be taken within 42 days and as other appeals are taken."

(Emphasis added.)

Section 43-2-354 provides that a party aggrieved by a judgment of a probate court regarding a disputed claim against an estate may appeal to the circuit court for a trial de novo. However, § 43-2-354 does not explicitly provide a specific procedure for appealing from a probate court to a circuit court. Section 12-22-25, Ala. Code 1975, provides that a party appealing from a judgment entered by a probate court must give security for costs of the appeal, but no statute generally applicable to appeals from a probate court otherwise specifies the procedure for appealing a probate-court judgment to the circuit court. See Finch v. Finch, 468 So.2d 151 (Ala. 1985). More specifically, as Medicaid correctly points out, no applicable statute or rule explicitly requires a party appealing pursuant to § 43-2-354 to first file a notice of appeal.

Generally speaking, a "notice of appeal" refers to a document filed with the clerk of the inferior court that entered the judgment from which the appeal lies, stating an intention to appeal the judgment of the inferior court to a superior court. See Black's Law Dictionary 1229 (10th ed. 2014). Because the timely filing of a notice of appeal ordinarily serves as the means to perfect an appeal, see, e.g., Rule 3, Ala. R. App. P., our supreme court decided that it would not be advisable to allow electronic filing of a notice of appeal. Thus, the electronic-filing policy manual requires that all notices of appeal be filed by paper, consistent with the long-standing practice and procedure in this state.

Under § 43-2-354, however, a party does not have to file a notice of appeal with the clerk of the probate court in order to perfect an appeal to the circuit court. An appeal "is the mode of commencing a new and independent suit ..., the object of which is a revision of the proceedings of the inferior court." Anders Bros. v. Latimer, 198 Ala. 573, 575, 73 So. 925, 926 (1917). In regard to appeals pursuant to § 43-2-354, it appears that the legislature, by omitting any reference to a notice of appeal, intended that the ordinary "mode of commencing a new and independent suit," i.e., the filing of a complaint under Rule 3(a), Ala. R. Civ. P., would be sufficient to perfect an appeal and invoke the appellate jurisdiction of the circuit court. Unlike a "notice of appeal," a complaint may be filed electronically.

In this case, Medicaid electronically filed a "complaint" in the circuit court, notifying the circuit court that it was appealing from an adverse judgment of the probate court. The content of its complaint was sufficient to invoke the appellate jurisdiction of the circuit court, and Medicaid used a permissible means to file its complaint. Because the appeal was timely and properly filed, we conclude that the circuit court erred in dismissing Medicaid's appeal. We therefore reverse the judgment of the circuit court and remand the cause to the circuit court for further proceedings.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

Thompson, P.J., dissents, without writing.


text:
    EX PARTE M.M.S.
    (In re In the matter of the adoption petition of E.S.H. and S.M.H.)
    Ex parte M.M.S.
    (In re In the matter of the adoption petition of E.S.H. and S.M.H.)
    2170214 2170215
    Court of Civil Appeals of Alabama.
    March 30, 2018
    Christopher D. Albert, Weaver, for petitioner.
    Robert D. Drummond, Jr., Fairhope; and Wendy Ghee Draper, Anniston, for respondents E.S.H. and S.M.H.
   Alice K. Martin, probate judge, Calhoun County, as respondent.

On Application for Rehearing

THOMPSON, Presiding Judge.

This court's opinion of February 2, 2018, is withdrawn, and the following is substituted therefor.

M.M.S. ("the mother") petitions this court for writs of mandamus directing the Calhoun Probate Court ("the probate court") to vacate its interlocutory decrees of May 9, 2017, regarding custody of her two minor children ("the children") and to vacate its interlocutory orders of May 15, 2017, barring removal of the children from the probate court's jurisdiction or from Lee County, where the children live with their foster parents, E.S.H. and S.M.H. ("the foster parents"). The mother also challenges the probate court's jurisdiction to enter the May 9, 2017, decrees and May 15, 2017, orders.

The materials before this court indicate the following. On June 12, 2015, the Calhoun Juvenile Court ("the juvenile court") entered orders finding the children dependent and placing the children in shelter care pursuant to the allegations of the Calhoun County Department of Human Resources ("DHR"). The reason for the dependency finding is not included in the materials before us. According to the mother's mandamus petitions, DHR then placed the children with the foster parents. The children have been residing with the foster parents since June 2015. DHR has retained legal custody of the children since the shelter-care orders were entered.

On October 26, 2016, the children's guardian ad litem filed in the juvenile court a petition for the termination of the mother's parental rights to the children ("the termination petition"). Subsequently, DHR sought to remove the children from foster care and place them with a relative in Texas, effective in May 2017. On May 8, 2017, the foster parents filed in the probate court a petition for adoption for each of the children. The adoption petitions indicated that "dependency/custody/termination of parental rights proceedings" were pending in the juvenile court and that, pursuant to orders of the juvenile court, DHR had legal custody of the children. The adoption petitions also indicated that there was no "placing agency" in these cases.

On May 9, 2017, the probate court entered an interlocutory decree for each child, awarding custody of each child to the foster parents. On May 15, 2017, the probate court entered an interlocutory order for each child directing that each child "shall not be removed from the jurisdiction of [the probate] court except as to their current residence in Lee County, Alabama."

Also on May 15, 2017, the mother filed in the probate court motions to set aside the interlocutory decrees and to dismiss the adoption actions. The mother argued that the juvenile court had jurisdiction over the children and that DHR retained legal custody of the children. Accordingly, the mother stated, the probate court did not have jurisdiction over the children. On May 17, 2017, the mother moved to set aside the May 15, 2017, interlocutory orders preventing the removal of the children from the probate court's jurisdiction. On May 19, 2017, the probate court ordered the parties to file briefs in the adoption actions. On June 6, 2017, the mother filed in the probate court motions contesting the adoption proceedings and supporting briefs. Nothing in the materials before us shows that the probate court ruled on any of the mother's various motions. On July 12, 2017, after a dispositional hearing, the juvenile court entered an order stating that the most appropriate permanent plan for the children was relative custody and/or adoption and that custody was to remain with DHR.

On September 13, 2017, the mother filed a motion for an immediate ruling in the probate court. On November 13, 2017, the probate court entered orders determining that it had original jurisdiction over the adoption actions, but it transferred the cases to the juvenile court for the limited purpose of determining whether to terminate the mother's parental rights. The probate court explicitly stated that it retained original jurisdiction of the adoption actions. Upon the completion of the termination proceedings, the probate court directed, the cases "shall be remanded" to the probate court for further proceedings. On November 27, 2017, the mother filed a petition for a writ of mandamus in this court addressing the May 9, 2017, interlocutory decree and the May 15, 2017, interlocutory order entered in each adoption action. The next day, November 28, 2017, this court consolidated the petitions ex mero motu.

"Mandamus is an extraordinary remedy. An appellate court will grant a petition for a 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 Flint Constr. Co., 775 So. 2d 805, 808 (Ala. 2000) (citing Ex parte Mercury Fin. Corp., 715 So.2d 196, 198 (Ala. 1997) ). Review by mandamus is not appropriate where the petitioner has another adequate remedy, such as an appeal. Ex parte Jackson, 780 So.2d 681 (Ala. 2000) ; Ex parte Inverness Constr. Co., 775 So.2d 153 (Ala. 2000) ; Ex parte Walters, 646 So.2d 154 (Ala. Civ. App. 1994)."

Ex parte Amerigas, 855 So.2d 544, 546-47 (Ala. Civ. App. 2003).

The mother contends that the probate court erred in entering the interlocutory decrees of May 9, 2017, and the interlocutory orders of May 15, 2017, because, she says, the children were not placed with the foster family by a "placing agency" for the purpose of adoption. Therefore, she maintains, the statutory requirements set forth in § 26-10A-18, Ala. Code 1975, for the entry of the interlocutory decrees and orders at issue had not been met.

Although within a few weeks of the entry of the May 2017 interlocutory decrees and orders the mother filed motions seeking to set them aside, i.e., to have the probate court reconsider those decrees and orders, she did not file her petitions for a writ of mandamus seeking to vacate those decrees and orders until November 27, 2017, more than six months after the entry of the decrees and orders at issue.

"[U]nlike a postjudgment motion following a final judgment, a motion to reconsider an interlocutory order does not toll the presumptively reasonable time period that a party has to petition an appellate court for a writ of mandamus. Rule 21(a)(3), Ala. R. App. P., and Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala. 2003). Rule 21(a)(3), Ala. R. App. P., provides:
" 'The petition shall be filed within a reasonable time. The presumptively reasonable time for filing a petition seeking review of an order of a trial court or of a lower appellate court shall be the same as the time for taking an appeal. If a petition is filed outside this presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.' "

Ex parte Onyx Waste Servs. of Florida, 979 So.2d 833, 834 (Ala. Civ. App. 2007).

The time for filing an appeal from a probate-court judgment in an adoption action is 14 days. § 26-10A-26(a), Ala. Code 1975; see also Ex parte W.L.K., 175 So.3d 652, 655-56 (Ala. Civ. App. 2015). Because the mother delayed more than six months in filing her petitions challenging the interlocutory decrees and orders, the petitions were not filed within a presumptively reasonable time.

"When a petition for a writ of mandamus has not been filed within a presumptively reasonable time, the petition 'shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.' Rule 21(a)(3), Ala. R. App. P. 'The filing of such a statement in support of an untimely petition for a writ of mandamus is mandatory.' Ex parte Fiber Transp. L.L.C., 902 So. 2d 98, 100 (Ala. Civ. App. 2004) (citing Ex parte Pelham Tank Lines, Inc., 898 So.2d 733, 736 (Ala. 2004), and Ex parte Troutman Sanders, 866 So.2d [547] at 550 [ (Ala. 2003) ] )."

Ex parte Onyx Waste Servs. of Florida, 979 So.2d at 835 (emphasis added).

The mother has not included a statement of good cause for not timely filing her mandamus petitions to this court. Because the petitions were not filed within a presumptively reasonable time and no statement providing good cause for this court to consider the petitions was filed, we must dismiss the mother's petitions to the extent they seek to challenge the reasons for the trial court's entry of the interlocutory decrees and orders.

Because the petitions are untimely, we would ordinarily dismiss them in their entirety. However, the mother also asserted an issue challenging the probate court's jurisdiction to consider the adoption actions. In Ex parte K.R., 210 So.3d 1106, 1112 (Ala. 2016), our supreme court held that the untimeliness of a petition for a writ of mandamus was "insignificant" when the issue challenged a probate court's jurisdiction to enter interlocutory orders such as the decrees and orders at issue in this case. The K.R. court explained its holding, saying:

" '[W]e take notice of the lack of jurisdiction ex mero motu. See Ruzic v. State ex rel. Thornton, 866 So. 2d 564, 568-69 (Ala. Civ. App. 2003) (discussing the general rule that this court notices lack of jurisdiction ex mero motu and citing to several cases noting that rule).' Lawrence v. Alabama State Pers. Bd., 910 So.2d 126, 128 (Ala. Civ. App. 2004)."

210 So.3d at 1112. Accordingly, despite the untimeliness of the mother's petitions, we will consider her argument that the probate court did not have jurisdiction over the adoption actions.

The mother specifically argues that the probate court did not have jurisdiction over the issue of custody because, she says, there already were cases regarding custody of the children pending in the juvenile court. In her petitions, the mother cites Arthur v. State, 238 So.3d 1276 (Ala. Crim. App. 2017), for the proposition that "jurisdiction of one case cannot be in two courts at the same time." She contends that, because the juvenile court had obtained jurisdiction over the issue of the custody of the children first, the foster parents' actions in probate court could not proceed at the same time.

Caselaw indicates that foster parents have filed adoption petitions during the pendency of juvenile-court actions to terminate the parental rights of biological parents whose children are in the physical custody of foster parents. See, e.g., Ex parte A.M.P., 997 So.2d 1008 (Ala. 2008) ; J.A.W. v. G.H., 72 So.3d 1254 (Ala. Civ. App. 2011) (juvenile court did not have jurisdiction to enjoin foster parents from proceeding in adoption action in probate court).

Ex parte A.M.P. also involved a request to vacate an interlocutory order entered in an adoption action that was filed after a custody award had already been made by a juvenile court in a dependency action involving the same child. A.M.P. was the mother of a child who was in the legal custody of the State Department of Human Resources ("the State DHR") and who had been placed with foster parents who were not related to that child. Certain family members of that child sought custody in the juvenile court, but their custody petitions were denied, and that child remained in the physical custody of the foster parents. Other family members of that child approached the State DHR regarding being relative resources for adoption and began having weekend visitation with that child. The foster parents filed an adoption petition in the Cullman Probate Court. The Cullman Probate Court entered an interlocutory order granting the foster parents' adoption petition. A.M.P. filed a motion to set aside the interlocutory order on the ground that she had not consented to the adoption. The Cullman Probate Court denied the motion. The other family members also contested the adoption. Ex parte A.M.P., 997 So.2d at 1011-12.

A.M.P. filed a petition for a writ of mandamus in this court, seeking an order directing the Cullman Probate Court to set aside its interlocutory order of adoption and to transfer the adoption petition to the juvenile court. While the mandamus petition was pending, the Cullman Probate Court entered a final judgment granting the adoption. A.M.P. sought a stay of that judgment and appealed the judgment to this court. The family members wishing to adopt that child sought a new trial in the Cullman Probate Court, but no order was entered on their motion. The family members also appealed the adoption judgment to this court. The mandamus petition seeking to set aside the Cullman Probate Court's interlocutory order and the appeals from the adoption judgment were consolidated and transferred to our supreme court pursuant to § 12-3-15, Ala. Code 1975. Id. at 1013.

Regarding A.M.P.'s petition for a writ of mandamus seeking to vacate the interlocutory order, our supreme court wrote:

"In the present case, the foster parents did not receive the child into their home for the purpose of adoption; instead, they were the foster parents of the child and initially received the child into their home for the purpose of serving as foster parents. However, [ A.M.P. ] did not file a motion with the Court of Civil Appeals for a stay of the interlocutory order. With no stay in place, the probate court had jurisdiction to continue the adoption proceedings."

Ex parte A.M.P., 997 So.2d at 1015 (emphasis added).

In these cases, the materials before us indicate that the mother sought a stay of the adoption actions in the probate court on June 6, 2017. On November 13, 2017, the probate court entered an order declaring that it had original jurisdiction of the adoption actions. The probate court transferred the actions to the juvenile court for the limited purpose of determining whether to terminate the mother's parental rights and stating that original jurisdiction was to remain with the probate court. When the juvenile court entered its judgment on the issue of the termination of parental rights, the probate court said, the actions were to be remanded to the probate court for further proceedings. The probate court did not grant a stay in the proceedings. The mother has not challenged the denial of her motion in her petitions, nor has she sought a stay in this court.

Because there is no stay in place, on the authority of Ex parte A.M.P. and the lack of any other legal authority prohibiting a probate court from considering an adoption petition while a dependency action regarding the same child is pending in a juvenile court, we conclude that the probate court had jurisdiction to proceed with the adoption actions, and we reject the mother's contention that the probate court did not have jurisdiction over the adoption actions because the juvenile court had already made a custody decision regarding the children. Thus, the mother's petitions are denied to the extent they challenge the probate court's subject-matter jurisdiction.

2170214-APPLICATION FOR REHEARING DENIED; OPINION OF FEBRUARY 2, 2018, WITHDRAWN; OPINION SUBSTITUTED; PETITION DISMISSED IN PART AND DENIED IN PART.

2170215-APPLICATION FOR REHEARING DENIED; OPINION OF FEBRUARY 2, 2018, WITHDRAWN; OPINION SUBSTITUTED; PETITION DISMISSED IN PART AND DENIED IN PART.

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

      The termination petition also sought the termination of the parental rights of the children's father. These petitions for a writ of mandamus pertain only to the mother.

      The Alabama Adoption Code, § 26-10A-1 et seq., Ala. Code 1975, defines a "licensed child placing agency" as "[a]ny adoption agency that is licensed under the provisions of the Alabama Child Care Act of 1971 or any adoption agency approved by the Department of Human Resources." § 26-10A-2(6), Ala. Code 1975.

      Section 26-10A-18 provides, in part:
      "Once a petitioner has received the adoptee into his or her home for the purposes of adoption and a petition for adoption has been filed, an interlocutory decree shall be entered delegating to the petitioner (1) custody, except custody shall be retained by the Department of Human Resources or the licensed child placing agency which held custody at the time of the placement until the entry of the final decree and (2) the responsibility for the care, maintenance, and support of the adoptee, including any necessary medical or surgical treatment, pending further order of the court."


author: Per Curiam.

text:
    Chad RAGER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3672
    District Court of Appeal of Florida, First District.
    November 21, 2018 Rehearing Denied January 29, 2019
    Chad Rager, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Holly N. Simcox, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Roberts, Makar, and Bilbrey, JJ., concur.


text:
    Joey ATWATER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1247
    District Court of Appeal of Florida, First District.
    November 16, 2018 Rehearing Denied January 29, 2019
    Joey Atwater, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

B.L. Thomas, C.J., and Wetherell and Winsor, JJ., concur.


text:
    Jerome ROBERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2883
    District Court of Appeal of Florida, First District.
    November 6, 2018 Rehearing Denied February 5, 2019
    Jerome Roberson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Rowe, Bilbrey, and Winsor, JJ., concur.


text:
    Sharon FULTON, Petitioner, v. STUDENT TRANSPORTATION OF AMERICA/NATIONAL INTERSTATE INSURANCE CO., Respondents.
    No. 1D17-4731
    District Court of Appeal of Florida, First District.
    June 20, 2018 Rehearing Denied July 30, 2018
    James R. Parris of Parris & Papa, P.A., Jacksonville, for Petitioner.
    Thomas G. Portuallo of Eraclides, Gelman, Hall, Indek, Goodman, Waters & Traverso, Jacksonville, for Respondents.
   Per Curiam.

DENIED.

Makar, Winokur, and Winsor, JJ., concur.


text:
    J.R.E., a Minor Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4147
    District Court of Appeal of Florida, First District.
    January 16, 2019
    Andy Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Brooke Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Rowe, Bilbrey, and Kelsey, JJ., concur.


text:
    Zairon Jarquis FUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-196
    District Court of Appeal of Florida, First District.
    December 19, 2018 Rehearing Denied February 5, 2019
    Joseph A. Costello of the Costello Law, LLC, Fort Lauderdale, for Appellant.
    Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Wolf, Makar, and M.K. Thomas, JJ., concur.


text:
    Michael E. SULLIVAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1041
    District Court of Appeal of Florida, First District.
    December 14, 2018 Rehearing Denied February 5, 2019
    Michael E. Sullivan, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED.

Rowe, Bilbrey, and Winsor, JJ., concur.


text:
    Kenneth FORD, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4936
    District Court of Appeal of Florida, First District.
    December 14, 2018 Rehearing Denied February 5, 2019
    Kenneth Ford, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Rowe, Bilbrey, and Winsor, JJ., concur.


text:
    Chad A. HOY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2986
    District Court of Appeal of Florida, First District.
    January 22, 2019
    Brett S. Chase of Chase Law Florida, P.A., St. Petersburg, for Appellant.
    Ashley B. Moody, Attorney General, and Barbara Debelius, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Wetherell, Rowe, and Winokur, JJ., concur.


text:
    Jeremy Jermaine BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2170
    District Court of Appeal of Florida, First District.
    January 22, 2019
    Andy Thomas, Public Defender, and Greg Caracci, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Sharon Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Wetherell, Rowe, and Winokur, JJ., concur.


text:
    Hugh M. DURDEN, John S. Lord, Thomas G. Kuntz, John F. Porter III, Geoffrey M. Rogers, and Winfred L. Thornton, as Trustees Under the Last Will and Testament and Codicils Thereto of Alfred I. Dupont, Deceased, and Ashley Brooke Moody, the Attorney General of the State of Florida and the Nemours Foundation, Petitioners, v. Kathleen JENNINGS, the Attorney General of the State of Delaware, Respondent.
    No. 1D18-2894
    District Court of Appeal of Florida, First District.
    January 22, 2019
    Daniel K. Bean and Kathleen Wubker of Abel Bean Law, P.A., Jacksonville; Edward F. Koren of Holland & Knight, LLP, Tampa for Petitioners Hugh M. Durden, John S. Lord, Thomas G. Kuntz, John F. Porter III, Geoffrey M. Rogers, and Winifred L. Thorton.
    R. Eric Bilik, R. Patrick Dover, and Emily Y. Rottmann of McGuireWoods LLP, Jacksonville, for Petitioner The Nemours Foundation.
    Ashley B. Moody, Attorney General; Blaine H. Winship, Special Counsel, Tallahassee for Petitioner Ashley Brooke Moody.
    John B. Macdonald of Akerman LLP, Jacksonville; Katherine E. Giddings and Kristen M. Fiore of Akerman LLP, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED .

B.L. Thomas, C.J., Roberts, J., and Long, Jr., Robert E., Associate Judge, concur.


text:
    Mark A. BROWNE, Petitioner, v. Holly E. BLANTON-BROWNE, Respondent.
    No. 1D18-562
    District Court of Appeal of Florida, First District.
    January 22, 2019
    Mark A. Browne, pro se, Petitioner.
    Nicholas Martino, Jacksonville, for Respondent.
   Per Curiam.

DENIED on the merits.

Rowe, Bilbrey, and Winsor, JJ., concur.


text:
    George P. CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5196
    District Court of Appeal of Florida, First District.
    January 25, 2019
    George P. Carter, pro se, Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Roberts, Kelsey, and Winsor, JJ., concur.


text:
    Alvin T. PRICE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2211
    District Court of Appeal of Florida, First District.
    January 22, 2019
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Makar, Winokur, and M.K. Thomas, JJ., concur.


text:
    STATE of Florida, Appellant, v. Grigoriy SARKISOV, Appellee.
    No. 1D18-2916
    District Court of Appeal of Florida, First District.
    January 22, 2019
    Ashley B. Moody, Attorney General, and Tabitha R. Herrera, Assistant Attorney General, Tallahassee, for Appellant.
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Bilbrey and Jay, JJ., concur; B.L. Thomas, C.J., dissents.


text:
    Uri TAL, Appellant, v. CITY OF LAUDERHILL, Appellee.
    No. 1D18-1285
    District Court of Appeal of Florida, First District.
    January 22, 2019
    Robert C. Buschel of Buschel Gibbons, P.A., Fort Lauderdale, for Appellant.
    Laura K. Wendell, Brett J. Schneider, and Milton R. Collins of Weiss, Serota, Helfman, Cole & Bierman, P.L., Fort Lauderdale, for Appellee.
   Per Curiam.

AFFIRMED .

Makar, Winokur, and M.K. Thomas, JJ., concur.


text:
    Sheila Renee BONNER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5146
    District Court of Appeal of Florida, First District.
    January 25, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant; Sheila Renee Bonner, pro se, Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Roberts, Kelsey, and Winsor, JJ., concur.


text:
    Gerald BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5023
    District Court of Appeal of Florida, First District.
    January 25, 2019
    Gerald Brown, pro se, Appellant.
    Ashley B. Moody, Attorney General, and Sharon Traxler, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED . See Manning v. State , 28 So. 3d 971, 973 (Fla. 2d DCA 2010).

Makar, Winokur, and M.K. Thomas, JJ., concur.


text:
    Isaac J. HARVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2358
    District Court of Appeal of Florida, First District.
    January 25, 2019
    Isaac J. Harvis, pro se, Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

DISMISSED .

Roberts, Kelsey, and Winsor, JJ., concur.


text:
    Timothy BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1323
    District Court of Appeal of Florida, First District.
    January 25, 2019
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Roberts, Kelsey, and Winsor, JJ., concur.


text:
    Theresa BRENNAN-BROOKS, Appellant/Cross-Appellee, v. INDIAN RIVER FIRE RESCUE/JOHNS EASTERN COMPANY, INC., Appellees/Cross-Appellants.
    No. 1D18-1301
    District Court of Appeal of Florida, First District.
    January 25, 2019
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant/Cross-Appellee.
    William H. Rogner of Hurley, Rogner, Miller, Cox & Waranch, P.A., Winter Park, for Appellees/Cross-Appellants.
   Per Curiam.

AFFIRMED .

Rowe, Ray, and Osterhaus, JJ., concur.


text:
    Richard Lee ETHERIDGE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1159
    District Court of Appeal of Florida, First District.
    January 25, 2019
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Roberts, Kelsey, and Winsor, JJ., concur.


text:
    James RICHARDSON, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 1D18-1073
    District Court of Appeal of Florida, First District.
    January 25, 2019
    James Richardson, Jr., pro se, Appellant.
    Ashley B. Moody, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

B.L. Thomas, C.J., and Wetherell and Winsor, JJ., concur.


text:
    Eric B. GREGORY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5462
    District Court of Appeal of Florida, First District.
    January 25, 2019
    Eric B. Gregory, Sr., pro se, Appellant.
    Ashley B. Moody, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Wolf, Makar, and M.K. Thomas, JJ., concur.


text:
    Shannon CASTRO, Appellant/Cross-Appellee, v. Jose CASTRO, Appellee/Cross-Appellant.
    No. 1D17-5326
    District Court of Appeal of Florida, First District.
    January 25, 2019
    H. E. Ellis, Jr., of Staples, Ellis + Associates, P.A., Pensacola, for Appellant/Cross-Appellee.
    R. Stan Peeler of Peeler Law Firm, PLLC, Pensacola, for Appellee/Cross-Appellant.
   Per Curiam.

AFFIRMED .

Wolf, Lewis, and Rowe, JJ., concur.