author: Judge Terri F. Love

text:
    Emily BEASLEY v. Leon CANNIZZARO in His Capacity as District Attorney for the Parish of Orleans
    NO. 2018-CA-0520
    Court of Appeal of Louisiana, Fourth Circuit.
    November 21, 2018
    Michael A. Foley, Avery B. Pardee, P. J. KEE, JONES WALKER LLP, 201 St. Charles Avenue, 50th Floor, New Orleans, LA 70170, COUNSEL FOR PLAINTIFF/APPELLEE
    Irena Zajickova, Assistant District Attorney, Donna R. Andrieu, Assistant District Attorney, 619 South White Street, New Orleans, LA 70119 And David M. Fink, Bernard Louis Charbonnet, Jr., THE LAW OFFICE OF BERNARD L. CHARBONNET, JR., A PROFESSIONAL LAW CORPORATION, 365 Canal Street, One Canal Place, Suite 1155, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Tiffany G. Chase )
   Judge Terri F. Love

This appeal arises from the trial court's judgment ordering the Orleans Parish District Attorney to produce certain charge conference sheets in redacted form. We find the District Attorney failed to carry its burden of proving that refusal to disclose the charge conference sheets in their entirety was warranted. Additionally, he has not shown that the trial court abused its discretion in ordering an in camera inspection of the charge conference sheets or that the trial court's factual findings are manifest error. Therefore, we affirm the trial court's judgment and order the trial court to conduct a hearing to assess and award Ms. Beasley reasonable attorney's fees and other litigation costs pursuant to La. R.S. 44:35(D).

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

Emily Beasley ("Ms. Beasley") is a private investigator retained by pro bono counsel representing Steven Williams ("Mr. Williams") in post-conviction proceedings. Mr. Williams was convicted on January 9, 2013, of the April 3, 2006 murder of Demarcus Jordan. The State's conviction of Mr. Williams relied on the testimony of a single eyewitness. At the time the murder occurred, Mr. Williams was 17 years old, and the charges against him were twice refused between 2006 and 2009. Counsel for Mr. Williams claims that it remains unknown what exculpatory facts led to the charges against Mr. Williams initially being refused only to be accepted when presented a third time.

Ms. Beasley made a public records request of Leon Cannizzaro, in his official capacity as the District Attorney for Orleans Parish ("District Attorney"), for documents relating to the screening, investigating, and prosecution of Mr. Williams. In response to Ms. Beasley's request, the District Attorney provided a "privileged list" identifying 38 items which his office claimed were being withheld pursuant to La. R.S. 44:4.1(C). Among the items withheld were charge conference sheets identified as items 22, 31, and 34.

Ms. Beasley thereafter filed a petition for writ of mandamus seeking a court order directing the District Attorney to produce the charge conference sheets. The District Attorney opposed the petition asserting that the charge conference sheets constitute privileged work product. The trial court thereafter issued a judgment ordering the District Attorney to produce to the trial court for an in camera inspection the charge conference sheets identified as items 22, 31, and 34 in the privileged list attached to the petition for writ of mandamus.

Following the in camera inspection, the trial court granted Ms. Beasley's petition for a writ of mandamus. In the April 2018 judgment granting Ms. Beasley's petition, the trial court ordered the District Attorney to redact certain information and ordered the District Attorney to produce all other documents requested. The District Attorney files this timely appeal.

STANDARD OF REVIEW

"[A] district court's findings of fact in a mandamus proceeding are subject to a manifest error standard of review." St. Bernard Port, Harbor and Terminal District v. Guy Hopkins Construction Co., Inc. , 16-0907, p. 4 (La. App. 4 Cir. 4/5/17), 220 So.3d 6, 10 (citing Hess v. M & C, Inc. , 14-962, p. 3 (La. App. 3 Cir. 2/11/15), 157 So.3d 1200, 1203 ). In this case, the District Attorney challenges the trial court's factual finding as to what constitutes privileged information in order to be considered exempt from a public records request. The trial court determined that only portions of the charge conference sheets constitute attorney work product, which can be redacted. Accordingly, this Court reviews the trial court's factual findings under a manifest error standard of review. Roper v. City of Baton Rouge/Parish of East Baton Rouge , 16-1025, p. 13 (La. App. 1 Cir. 3/15/18), 244 So.3d 450, 460 (finding determination of whether defendants produced all non-exempt documents responsive to a public records request is a factual determination and subject to manifest error standard of review); See also Kimpton Hotel & Restaurant Group, Inc. v. Liberty Mut. Fire Ins. Co. , 07-1118, 07-1209, 07-1310, p. 7 (La. App. 4 Cir. 12/19/07), 974 So.2d 72, 77 (reviewing the trial court's determination that materials are not privileged and protected by the work product doctrine under an abuse of discretion).

DISCUSSION

The Louisiana Supreme Court "has determined that the right of access to public records is a fundamental right guaranteed by La. Const. art. XII § 3, and whenever there is any doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public's right of access." Landis v. Moreau , 00-1157, p. 4 (La. 2/21/01), 779 So.2d 691, 694 (citing Title Research Corp. v. Rausch , 450 So.2d 933 (La. 1984) ). "The Public Records Act exempts from disclosure of records relating to pending or anticipated criminal litigation, 'until such litigation has been finally adjudicated or otherwise settled.' " Id. , 00-1157, p. 4-5, 779 So.2d at 695 (quoting La. R.S. 44:3(1) ). Ms. Beasley was enlisted as an investigator as part of Mr. Williams' post-conviction representation. Consequently, the charge conference sheets which Ms. Beasley seeks disclosure of are not specifically exempted under the Public Records Act.

As the custodian of the public records Ms. Beasley seeks, the District Attorney bears the burden of proving that a record is exempt from disclosure under the Public Records Act. Trenticosta v. Mamoulides , 93-621 (La. App. 5 Cir. 2/23/94), 633 So.2d 786, 789. However, the fact that a record contains material which is not a public record is not a basis for restricting access to the requested record. Vandeweghe v. Parish of Jefferson , 11-52, p. 11 (La. App. 5 Cir. 5/24/11), 70 So.3d 51, 58 ; Times Picayune Pub. Corp. v. Board of Sup'rs of Louisiana State University , 02-2551, p. 8 (La. App. 1 Cir. 5/9/03), 845 So.2d 599, 605-606 ; Shane v. Parish of Jefferson , 14-2225, p. 25 (La. 12/8/15), 209 So.3d 726, 745 (finding privacy interests may be adequately protected by redaction). "If any record contains material which is not a public record, the custodian may separate the nonpublic record and make the public record available for examination." La. R.S. 44:32(B).

The District Attorney asserts that the charge conference sheets, in their entirety, are exempt from disclosure pursuant to La. R.S. 44:4.1(C) and La. R.S. 44:3(D). In that the District Attorney refused to disclose any portion of the charge conference sheets, it was the District Attorney's "burden of proof to establish why disclosure should be kept." Trenticosta , 633 So.2d at 789. The record demonstrates that the only evidence offered to show that the charge conference sheets are exempt from disclosure was the affidavit of the First Assistant District Attorney Graymond Martin.

Like the trial court, we find Mr. Martin's affidavit fails to satisfy the District Attorney's burden of demonstrating that the charge conference sheets were properly withheld from disclosure. Notably, Mr. Martin attests to the purpose of a charge conference sheet and its contents but only in general terms. The affidavit makes no mention of the case at bar or the specific public records request that Ms. Beasley made. Also absent in Mr. Martin's affidavit is any evidence that Mr. Martin reviewed the charge conference sheets at issue. Further, Mr. Martin does not indicate that redaction of any potentially exempt information is impossible or overly burdensome. Therefore, we find Mr. Martin's affidavit does not support the District Attorney's assertion that the charge conference sheets were properly withheld from disclosure.

Nevertheless, the District Attorney maintains that the charge conference sheets, in their entirety, are exempt under La. R.S. 44:4.1(C), which provides that the Public Records Act:

Shall not apply to any writings, records, or other accounts that reflect the mental impressions, conclusions, opinions, or theories of an attorney or expert, obtained or prepared in anticipation of litigation or in preparation for trial.

However, as Ms. Beasley points out, the Public Records Act does not exempt from disclosure underlying facts that are contained in the charge conference sheets. The plain language of La. R.S. 44:4.1(C) is limited to "mental impressions, conclusions, opinions, or theories." The plain language of the statute makes no mention of the writings of an attorney which reflect the underlying facts of an investigation.

In Landis v. Moreau , the trial court ruled that audiotapes containing statements of witnesses interviewed by the district attorney's office during its investigation were exempt from disclosure under the Public Records Act. Id. , 00-1157 (La. 2/21/01), 779 So.2d 691. The Louisiana Supreme Court reversed the trial court's ruling, ordering an in camera inspection. The Supreme Court stated: "we are not persuaded that the eighteen audiotapes at issue contain only exchanges between the witnesses and the prosecutor regarding the state's theory of the case. The trial court could have viewed the audiotapes, in camera , pursuant to La. R.S. 44:35(B)." Id. , 00-1157, p. 10, 779 So.2d at 698. The matter was then remanded "to the trial court for an in camera inspection ... to determine whether any portions of the tape recorded statements [were] discoverable." Id. , 00-1157, p. 11, 779 So.2d at 698. While the audiotapes contained statements from the district attorney's office about a criminal prosecution, the Landis court held that they were not intrinsically protected by the work product privilege embodied in La. R.S. 44:4.1(C).

Similarly, in this case, the trial court ordered and conducted an in camera inspection to determine whether any portions of the charge conference sheets are discoverable. In doing so, the trial court made a factual determination that the charge conference sheets do not consist entirely of the mental impressions, opinions, conclusions, or theories of the District Attorney's office, but contain underlying facts that are not exempt under the Public Records Act. The trial court consequently ordered the District Attorney to redact the mental impressions of attorneys and produce those portions of the documents that consist of the underlying facts and/or evidence in Mr. Williams' case.

"[A]ccess to public records can be denied only when the Public Records Law or the Constitution specifically and unequivocally provide otherwise." Shane , 14-2225, p. 9, 209 So.3d at 735. Moreover, any doubt as to whether the public has the right of access to a public record, the doubt "must be resolved in favor of the public's right of access." Landis , 00-1157, p. 4, 779 So.2d at 694. The District Attorney bore the burden of establishing that one of the exemptions to the Public Records Act applied to prove his refusal to provide the charge conference sheets was warranted. We find the District Attorney has not met its burden. Likewise, the District Attorney has not demonstrated to this Court that the trial court abused its discretion in ordering an in camera inspection or committed manifest error in concluding that information about the charge conference sheets, in redacted form, must be disclosed under the Public Records Act.

Finally, in the event this Court should affirm the trial court's ruling, Ms. Beasley asserts that she is entitled to an award of fees pursuant to La. R.S. 44:35(D)(1), which provides in pertinent part:

If a person seeking the right to inspect ... or to receive a copy ... of a public record prevails in such suit, he shall be awarded reasonable attorney fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorney fees or an appropriate portion thereof.

We find the trial court did not commit manifest error in concluding that the District Attorney incorrectly refused to disclose the charge conference sheets in their entirety. Accordingly, the trial court is instructed to conduct a hearing to assess and award Ms. Beasley reasonable attorney's fees and costs pursuant to La. R.S. 44:35(D). See also Ferguson v. Stephens , 623 So.2d 711, 717 (La. App. 4th Cir. 1993) (finding plaintiff prevailed on demand for access to the public records and was entitled to attorney's fees and other litigation costs pursuant to La. R.S. 44:35(D) ).

DECREE

A review of the record demonstrates that the trial court completed a thorough review of the evidence and pursuant to Landis conducted an in camera inspection to determine whether the charge conference sheets at issue were exempt under the Public Records Act. The District Attorney bore the burden of proving that refusal to disclose the charge conference sheets in their entirety was warranted. The District Attorney has failed to carry his burden and has not demonstrated to this Court that the trial court committed manifest error or abused its discretion. Therefore, we affirm the trial court's judgment granting Ms. Beasley's petition for writ of mandamus and ordering the District Attorney to produce the charge conference sheets in redacted form. In that Ms. Beasley is the prevailing party, the trial court is instructed to conduct a hearing to assess and award Ms. Beasley reasonable attorney's fees and costs pursuant to La. R.S. 44:35(D).

AFFIRMED


source: Caselaw Access Project

author: BARNES, J., FOR THE COURT:

license: Public Domain

text:
    TURNER & ASSOCIATES P.L.L.C., The Estate of Bennie L. Turner and Angela Turner, Appellants v. Gerald WATKINS, Appellee
    NO. 2017-CA-01352-COA
    Court of Appeals of Mississippi.
    December 4, 2018
    ATTORNEYS FOR APPELLANTS: RANDOLPH WALKER, ANGELA TURNER FORD
    ATTORNEYS FOR APPELLEE: J. RHEA TANNEHILL JR., JACOB BYSTROM JORDAN, OXFORD
    BEFORE GRIFFIS, P.J., BARNES AND WILSON, JJ.
   BARNES, J., FOR THE COURT:

¶1. After Gerald Watkins, a roofing contractor, was injured when he fell off a roof, he hired Turner & Associates PLLC to file a personal-injury lawsuit against the homeowner. Years later, Watkins discovered no action was filed on his behalf, and the statute of limitations had expired. He filed a complaint against Turner & Associates PLLC, Bennie Turner, and Angela Turner (collectively "Turner"), alleging legal malpractice/negligence, breach of contract, intentional or negligent misrepresentation/fraud, negligent supervision, and intentional/negligent infliction of emotional distress.

¶2. On August 13, 2013, Watkins filed a motion for summary judgment, which the Pontotoc County Circuit Court denied, finding there were genuine issues of material fact as to whether there was a binding contract between the parties and whether Turner's paralegal, Carolyn Turner Karriem, "had the authority to enter into the settlement of the legal malpractice case."

¶3. On June 28, 2016, Watkins filed a notice of discovery, including requests for admissions. When Turner failed to respond, Watkins filed a second motion for summary judgment on February 8, 2017, arguing that his requests for admissions were deemed admitted. Turner claimed it never received the discovery requests. The trial court granted the motion, finding that under Mississippi Rule of Civil Procedure 36, the requests for admissions were deemed admitted and Watkins was entitled to summary judgment.

¶4. Turner appeals, claiming: (1) Watkins did not prove the underlying claim would have been successful; (2) Karriem's authority to enter into a settlement was not addressed by the requests for admissions; (3) the trial court failed to make any findings of fact whether Turner received the notice of service of discovery; (4) the requests for admissions did not resolve all genuine issues of material fact; and (5) the "release" was not enforceable. Finding the trial court's order granting summary judgment is not a final, appealable judgment, we dismiss for lack of jurisdiction.

DISCUSSION

¶5. Although the issue of jurisdiction was not raised by either party, this Court must address on its own initiative whether the trial court's order was a final, appealable judgment. Jeffers v. Saget , 235 So.3d 103, 105 (¶ 8) (Miss. Ct. App. 2017). "Jurisdiction is a question of law, which we review de novo." Way v. Clark , 208 So.3d 9, 11 (¶ 10) (Miss. Ct. App. 2017) (citing Germany v. Germany , 123 So.3d 423, 427 (¶ 8) (Miss. 2013) ). "A final, appealable judgment is one that adjudicates the merits of the controversy which settles all issues as to all the parties and requires no further action by the [trial] court." Walters v. Walters , 956 So.2d 1050, 1053 (¶ 8) (Miss. Ct. App. 2007) (internal quotation marks omitted). In its order filed on August 28, 2017, the trial court concluded:

On June 28, 2016, counsel for the Plaintiff propounded discovery including interrogatories, request for production of documents and requests for admissions on the Defendants. To date, the Defendants have failed to respond to the discovery requests. Pursuant to ... Rule 36, the Requests for Admissions are deemed admitted since the Defendants failed to respond within thirty (30) days. The Requests for Admissions addressed dispositive items like admitting there was a valid contract between the Plaintiff and Defendants, admitting the Defendants misrepresented possible awards to Plaintiff, admitting the statute of limitations expired on the Plaintiff's claim, admitting negligence, misrepresentations, and fraud by Defendants, and admitting that the Absolute Release was a legally and bind[ing] document.
In light of these admissions, under Rule 56 of the [Mississippi Rules of Civil Procedure,] there are no genuine issues of material facts and therefore summary judgment is proper.
IT IS THEREFORE ORDERED AND ADJUDGED that the Plaintiff Gerald Watkins'[s] Second Motion for Summary Judgment shall be, and hereby is, GRANTED.
SO ORDERED AND ADJUDGED this the 24th day of August, 2017.

No other judgment is contained in the record. The advisory notes to Mississippi Rule of Civil Procedure 54 state: "The terms 'decision' and 'judgment' are not synonymous under these rules. The decision consists of the court's opinion which consists of findings of fact and conclusions of law; the rendition of judgment is the pronouncement of that decision and the act that gives it legal effect."

¶6. Here, the court's order granted Watkins's motion for summary judgment, but it did not award Watkins any monetary judgment or damages. The parties have acknowledged that the amount of judgment to be enrolled is unclear, and this Court cannot assume that the court's judgment was the $5,000,000 requested by Watkins in his complaint and identified in his requests for admissions. Thus, the court's order did not adjudicate all the issues and requires further action by the trial court. See Jackson v. Lowe , 65 So.3d 879, 882 (¶ 8) (Miss. Ct. App. 2011) (This Court could not assume a "final order's silence" on a party's claim for damages constituted a final adjudication; therefore, the court's "final judgment" was an interlocutory order.). Since the court's order was not a final judgment for purposes of appeal, we dismiss for lack of jurisdiction.

¶7. APPEAL DISMISSED.

LEE, C.J., GRIFFIS, P.J., CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. IRVING, P.J., AND TINDELL, J., NOT PARTICIPATING.

      There appeared to be an attempt by the parties to settle the action for $300,000, evidenced by an "Absolute Release with Indemnity and Confidentiality Covenants" signed by Watkins. The release purported that Watkins received $18,000 from Turner in consideration for the release and indemnity, but he did not receive any further compensation.

      Watkins died on December 30, 2016. There is no evidence in the record of Watkins's death, but counsel acknowledged in the appellee's brief that Watkins is deceased. Counsel also stated at oral argument that he was aware of Watkins's death when filing the second summary-judgment motion. Turner's reply brief argues the trial court's order was improper since there was no party-plaintiff. No suggestion of death was submitted, but Watkins's counsel filed a motion for substitution of parties on October 8, 2018. However, based on our dismissal of the appeal, we leave this matter for the trial court, and we dismiss the motion.

      Watkins's counsel suggested that if the order is interlocutory, he would consent to an interlocutory appeal. We must reject this proposition as the parties failed to follow the procedural rules to file such an appeal. See M.R.A.P. 5.


author: WISE, Justice. SELLERS, Justice (dissenting).

text:
    Jami JOHNSTON v. CASTLES AND CROWNS, INC., and Delaire Tibbetts
    1160171
    Supreme Court of Alabama.
    November 3, 2017 Rehearing Denied February 2, 2018
    Christopher W. Weller and Chad W. Bryan of Capell & Howard, P.C., Montgomery, for appellant.
    W. Craig Hamilton, Frederick G. Helmsing, Jr., and J. Blair Newman, Jr., of McDowell Knight Roedder & Sledge, LLC, Mobile, for appellees.
   WISE, Justice.

Jami Johnston, the defendant, counterclaim plaintiff, and third-party plaintiff below, appeals from a judgment in favor of Castles and Crowns, Inc. ("Castles"), the plaintiff and counterclaim defendant below, and Delaire Tibbetts, the third-party defendant below. We reverse and remand.

Facts and Procedural History

Castles is a children's clothing company formed by Julie Vickers and Amy Bowers. Vickers and Bowers designed the clothes, which were then manufactured at a factory in El Salvador. Castles had two clothing seasons-fall/winter and summer/spring. At the beginning of each season, Castles would submit a purchase order with the factory, which would then produce clothing for that season. Castles' clothing was sold by representatives who would host home parties to sell the clothing. The representatives would receive trunks that included samples of the fashions for that season. Customers would then place orders that would be shipped from the factory directly to the customer. At the end of each season, any unsold inventory was shipped from the factory to Castles' office. Castles would sell some of its leftover inventory through certain liquidators and consignment companies. At one time, Castles operated a factory-outlet store where it would sell some of its leftover inventory. Subsequently, Castles closed the factory-outlet store and opened a boutique store at which it would sell some of its leftover inventory.

Brandi Stuart, Johnston's sister, worked for Castles from 2006 until 2011. Stuart was initially a representative who sold Castles' clothing at home shows. Vickers subsequently offered Stuart a job working in Castles' office. Ultimately, Stuart became the operations manager for Castles. Stuart received a salary from Castles; she was allowed to purchase Castles' clothing at a discount; and she received a bonus each season based on the gross sales for that season. Stuart testified that the bonus was originally 1%, but it was increased to 3% at some point. However, Castles presented evidence indicating that Stuart received a 1% bonus the entire time she worked for Castles. Vickers testified that, on one occasion, Stuart was allowed to take her bonus in Castles' clothing but that every other bonus was in cash. However, Stuart testified that she was allowed to take her bonuses in cash, clothing, or a combination of cash and clothing.

In 2009, Stuart contacted Johnston and asked her if she was interested in selling children's clothing. Subsequently, Johnston formed Children's Liquidations, a consignment company that would provide children's clothes to other consignment companies for sale. Castles presented evidence indicating that, from 2009 to 2010, while she was working with Castles, Stuart had 7,149 pounds of Castles' clothing shipped either to Johnston or to consignment companies used by Johnston. Stuart used Castles' FedEx shipping account to ship the clothing. Tibbetts, who worked at Castles' boutique store, testified that, on one occasion, Johnston came to the store and picked up multiple boxes of Castles' clothing. Vickers testified that she was aware that, during the time Stuart worked for Castles, some clothes were being sent to Johnston from Castles. When asked about her understanding as to what was occurring with those clothes, Vickers replied that, on a couple of occasions, Stuart had asked her if it was okay if she sent some clothes to Johnston, just as she would to other liquidators; that Vickers was aware that Johnston was receiving those clothes; and that Vickers was expecting to receive a check from Johnston upon the sale of the clothes, just as she did from the other liquidators. The evidence at trial established that neither Stuart nor Johnston paid Castles for those clothes or remitted any of the proceeds from Johnston's sales of the clothes to Castles. However, Stuart maintained that the clothes sent to Johnston were part of her bonuses that she had taken in clothing. Additionally, Johnston testified that Stuart told her that she had either received the clothes as part of her bonus or that she had purchased the clothing.

Evidence was presented indicating that Johnston had sent some of the Castles' clothing she had received from Stuart to consignment companies. Johnston did not use the same consignment companies as Castles used. On some occasions, Johnston took some of the items and sold them at a warehouse sale. For the items Johnston had sent to other consignment companies, the consignee would retain a portion of the sales proceeds as a fee and remit the remaining amount to Johnston. Of that amount, Johnston would keep 30% and give Stuart 70%. For items Johnston sold at the warehouse sale, Johnston would retain the original consignee's fee. Of the amount remaining after the deduction of that fee, Johnston would receive 30% and Stuart would receive 70%.

Some of Castles' FedEx records indicated that some packages had been shipped from Castles directly to the consignment companies used by Johnston. There were also some FedEx records that listed Johnston as the sender and Johnston's consignment companies as the recipients.

In January 2011, Vickers terminated Stuart's employment based on issues with her performance. After Stuart's employment was terminated, Tibbetts, who was working at Castles' boutique store, received a telephone call from a woman who asked for "Jami." When told that no one named Jami worked for Castles, the woman asked for Stuart. When told that Stuart was no longer with the company, the woman asked if Castles' clothing was going to be sent for a consignment sale. Tibbetts told the woman she would have to get back with her, and Tibbetts contacted Vickers. Vickers testified that they subsequently started going through Castles' records. Castles' FedEx records showed the shipments to Johnston. Tibbetts also testified that her 2010 end-of-the-year inventory showed a large amount of missing inventory. Additionally, Vickers discovered credit-card statements for Castles that included personal charges made by Stuart. Johnston testified that, at the time of the trial, she still had boxes of Castles' clothing in her home.

Michelle Cox was the owner of New 2 U, a consignment company that put on events in the fall and spring in various locations in Mississippi. From September 2009 to March 2011, Cox and Johnston had an ongoing relationship pursuant to which Johnston shipped Castles' clothing to Cox; Cox sold the clothing at New 2 U consignment events; Cox retained 30% of the sales proceeds; and the remaining 70% of the sales proceeds were sent to Johnston. Cox's business relationship with Johnston ended at the conclusion of the March 2011 event. Cox testified that, during the March 2011 event in Tupelo, she received a telephone call from Tibbetts, who identified herself as working for Castles. Tibbetts asked Cox if they had any Castles' inventory. When Cox replied that they did, Tibbetts told Cox that she needed to pull those items from the sales floor. Cox testified that, when she asked why, Tibbetts asked her how she had obtained Castles' clothing and that she told Tibbetts that Johnston had shipped the items to her. She further testified that Tibbetts told her that Castles was conducting an internal audit; that some discrepancies had come to light; and that Castles wanted to look into it further. Cox testified that she did not know what Tibbetts meant; that Tibbetts never used the word "stolen"; and that she had asked Tibbetts specifically if the items that had been shipped to her had been stolen. Cox went on to testify that

"[i]t was definitely implied that they were saying that [Johnston] wasn't the rightful owner of those items and did not have the right to send them to me."

Cox testified that Tibbetts asked her to pull Castles' items from the sales floor; to return the items to Castles; and to send any proceeds from Castles' items that had been sold up to that point to Castles. Cox refused to pull the items from the sales floor, refused to send the items to Castles, and refused to send the proceeds from the items that had been sold to Castles. Ultimately, Cox remitted 70% of the proceeds from that event to Johnston. At the conclusion of the March 2011 event, Cox stopped selling Castles' items on consignment for Johnston. However, Cox testified that, about one year later, Johnston contacted her and asked her to sell another line of children's clothing that Johnston was representing. Cox said that she started selling that line of clothing.

On April 22, 2011, Castles sued Stuart and Johnston. The complaint alleged claims of conversion; civil conspiracy; "willfulness, negligence, and wantonness"; trespass to chattel; and unjust-enrichment against Johnston and Stuart. It also asserted fraudulent-misrepresentation and suppression claims against Stuart.

On May 26, 2011, Johnston filed her answer. She also asserted a counterclaim against Castles and a third-party complaint against Vickers and Tibbetts. In her counterclaim and third-party complaint, Johnston alleged claims of defamation; "negligence, wantonness, and willfulness"; conspiracy; and tortious interference with business and contractual relations. She also sought recovery against Castles under the theory of respondeat superior.

On June 28, 2011, Castles filed its "Answer to Jami Johns[t]on's Counterclaims and Third-Party Complaint."

Stuart subsequently filed an answer and an amended answer. Stuart included a counterclaim against Castles alleging libel and slander and tortious interference with Stuart's business relationships.

On January 21, 2013, Castles filed its first amended complaint, asserting the same claims as it did in the original complaint. Count one alleged conversion and stated, in pertinent part:

"25. [Stuart and Johnston] appropriated to their own use and benefit pieces of clothing belonging to Castles without lawful justification. The pieces of clothing converted by [Stuart and Johnston] had a value which will be proven at trial.
"26. [Stuart and Johnston] appropriated to their own use and benefit shipping labels belonging to Castles and the use of Castles' shipping account. The appropriated shipping labels and use of Castles' shipping account had a value which will be proven at trial."

Count two asserted a claim of civil conspiracy and stated, in pertinent part:

"31. At all times material, [Stuart and Johnston] did knowingly combine with each other and others, known and unknown, to accomplish by concert the unlawful purpose of appropriating Castles' property as described above, and [Stuart and Johnston] did cause Castles to suffer damage in the form of substantial financial loss, including loss of income, loss of past and future profits, and injury to business reputation."

Count seven alleged unjust enrichment and stated:

"[Stuart and Johnston] hold monies and other property improperly received, appropriated, converted, or usurped from Castles as set forth above. [Stuart and Johnston] were thereby unjustly enriched and secured benefits in the form of those monies, property and/or assets. It would be unconscionable and unjust for [Stuart and Johnston] to retain those benefits.
"WHEREFORE, Castles demands judgment against [Stuart and Johnston] requiring them to disgorge all funds, profits, gain, unjustified expenses, and all other monies and/or property that are rightfully the property of Castles, and pay damages and/or restitution as equitable relief appropriate under Alabama law, and award Castles' costs, expenses and attorneys' fees. Castles demands the imposition of a constructive trust in favor of it as to all money received by [Stuart and Johnston] from the sale of Castles' property, and such other relief as it may be entitled."

Castles, Vickers, and Tibbetts filed a motion for a summary judgment as to the counterclaims filed by Stuart and Johnston and the third-party claims filed by Johnston. The trial court granted the motion "as to Brandi Stuart and Jami Johnston's claims for libel, negligence, wantonness, and willfulness." However, it denied the motion as to the remaining claims.

Trial of this case started on August 29, 2016. After the close of the evidence, Castles and Johnston each filed a motion for judgment as a matter of law. The trial court entered a judgment as a matter of law as to Johnston's remaining third-party claims against Vickers and Stuart's remaining counterclaims against Castles. Johnston did not pursue her conspiracy claim against Tibbetts and Castles. Castles did not pursue its willfulness, negligence, and wantonness claim and its trespass-to-chattel claim against Johnston and Stuart. It also did not pursue its fraudulent-misrepresentation claim, its suppression claim, and its unjust-enrichment claim against Stuart. Castles' conversion and civil-conspiracy claims against Johnston and Stuart; Castles' unjust-enrichment claim against Johnston; and Johnston's defamation claim and tortious-interference-with-business-and-contractual-relations claim against Castles and Tibbetts were submitted to the jury. During its oral charge, the trial court stated:

"Castles and Crowns also has a claim for unjust enrichment against Defendant Jami Johnston only. In the event you find in favor of Ms. Johnston on the conversion, conspiracy claims."

(Emphasis added.) It also stated:

"All right. In the event you find in favor of Defendant Jami Johnston on the claims of conversion, conspiracy, Castles also then asserts a claim that Jami Johnston was unjustly enriched. And to prevail on the unjust enrichment, Castles must then prove by a preponderance of the evidence that Jami Johnston knowingly accepted, knowingly accepted and retained a benefit provided by Castles and Castles had a reasonable expectation of compensation."

(Emphasis added.)

The verdict form provided, in pertinent part:

"We, the jury, find in favor of the Plaintiff, Castles and Crowns, Inc., and against Defendant Brandi Stuart ___ (check if applicable) and Defendant Jami Johnston ___ (check if applicable) for conversion.
"OR
"We, the jury find in favor of the Defendant ___ Brandi Stuart (check if applicable) and Defendant Jami Johnston ___ (check if applicable) on the conversion count.
"We, the jury, find in favor of the Plaintiff, Castles and Crowns, Inc., and against Defendant Brandi Stuart ___ (check if applicable) and Defendant Jami Johnston for engaging in a conspiracy to convert Castles inventory ___ (check if applicable).
"OR
"We, the jury, find in favor of the Defendant ___ Brandi Stuart (check if applicable) and Defendant Jami Johnston ___ (check if applicable) on the conspiracy to convert inventory count.
"We, the jury, award to the Plaintiff, Castles and Crowns, Inc., compensatory damages in the amount of _________ and, if applicable, punitive damages in the amount of _________.
"If you do not find against Jami Johnston on either of the above counts, you must decide whether she is liable for unjust enrichment. We, the jury, find in favor of the Plaintiff, Castles and Crowns, Inc., and against Defendant Jami Johnston for unjust enrichment ___ (check if applicable).
"We, the jury, award to the Plaintiff, Castles and Crowns, Inc., _______ in compensatory damages on the unjust enrichment count.
"OR
"We the jury find in favor of Defendant Jami Johnston ___ (check if applicable) on the unjust enrichment count."

(Emphasis added.) During its charge to the jury, the trial court reviewed the verdict form, stating, in pertinent part:

"And here it says: 'If you do not find against Jami Johnston on either of the above counts, you then get into the unjust enrichment. We, the jury find in favor of the Plaintiff Castles and Crowns and against Jami Johnston for unjust enrichment'-
"Check mark if that's your verdict.
"-based on the evidence.
"Below that, we, the Jury, award to the Plaintiff Castles and Crowns, blank, and compensatory damages on the unjust enrichment claim.
"If you check that claim.
"Or, we, the Jury, find in favor of the Defendant Jami Johnston, if that's your verdict based on the evidence on the unjust enrichment count."

The jury returned a verdict in favor of Castles and against Johnston and Stuart on the conversion and conspiracy claims. It awarded Castles $800,000 in compensatory damages and $1 in punitive damages. It also found in favor of Castles and against Johnston on the unjust-enrichment claim and awarded Castles $75,000 in compensatory damages. The jury also found in favor of Castles and Tibbetts and against Johnston on the defamation and tortious-interference-with-business-and-contractual-relations claims.

After the jury was discharged, the following occurred:

"THE COURT: All right. The jury came back with a verdict in favor of Castles and Crowns and also-Castles and Crowns on the conversion and the conspiracy claim. And then also further came back in favor of Castles and Crowns against Jami Johnston on the claim for unjust enrichment, which is not consistent with my instructions and the law. So I'm going to set aside that verdict and render judgment in favor of Jami Johnston on the unjust enrichment claim.
"Any other challenges to the verdict, of course, you have time to do it, but I'm going to go ahead and get that done now.
"[COUNSEL FOR STUART]: Well, so you're curing the inconsistent verdict?
"THE COURT: Yes, I'm curing the inconsistency. I think that's-
"Now, if you want to challenge that I'm wrong doing that, yes, you certainly have the right to do that. It could be that the whole thing gets thrown out, as you might already-later.
"[COUNSEL FOR STUART]: Well, I mean, if it's-I don't know. I'm just, in my mind, I'm saying it's an inconsistent verdict.
"[COUNSEL FOR JOHNSTON]: Very inconsistent.
"[COUNSEL FOR STUART:] It's an inconsistent verdict, so, you know ....
"THE COURT: It's inconsistent, no question.
"[COUNSEL FOR CASTLES]: Yeah, the jury made a mistake; however, y'all agreed to the verdict form. Raised no objections to the verdict form.
"THE COURT: I don't think there's anything wrong with the verdict form.
"[COUNSEL FOR STUART]: They didn't follow instructions, so, you know, that may not-that's just ....
"THE COURT: Yes. That could be an issue, maybe it's not an issue, I don't know, but it certainly was not consistent. And I think, you know, I'm setting aside this unjust enrichment. But, yeah, I fully expect there to be further discussion about whether that's the right thing to do or not. Now, let's just leave it like that and file what you need to file within 30 days. Okay?
"[COUNSEL FOR STUART]: Thank you.
"[COUNSEL FOR CASTLES]: Thank you."

On September 1, 2016, the trial court entered a final judgment on the verdict. In its judgment, the trial court stated:

"The jury also returned a verdict against Defendant Jami Johnston in the amount of $75,000 for unjust enrichment, even though the Court instructed the jury (as did the verdict form) to consider the unjust enrichment claim only if the jury did not return a verdict against Jami Johnston on the claims for conversion and conspiracy. The jury did return a verdict against Jami Johnston on the claims for conversion and conspiracy; thus, the verdict against Defendant Jami Johnston for unjust enrichment is inconsistent with the other findings by the jury and the Court's instructions. Therefore, the Court will not enter a judgment on the jury verdict against Defendant Jami Johnston for unjust enrichment."

On September 30, 2016, Johnston filed a Rule 59, Ala. R. Civ. P., motion to alter, amend, or vacate the judgment as to her or for a new trial. She argued that she was entitled to a new trial based on an inconsistent verdict. In her motion, Johnston argued that a trial court cannot cure an inconsistent verdict or any other erroneous verdict by modifying the verdict. Johnston also filed a Rule 50, Ala. R. Civ. P., renewed motion for judgment as a matter of law.

On October 3, 2016, Castles, Vickers, and Tibbetts filed a Rule 59 motion to alter or amend "certain language contained in the Court's Final Judgment in this case." In that motion, they asked the court to take out the language in its judgment that characterized the verdict "as 'inconsistent' with the jury's other findings and the Court's instructions."

On November 1, 2016, Castles and Tibbetts filed their opposition to Johnston's Rule 59 motion. They asserted that the verdict was not inconsistent. They also asserted that the motion should be denied because the trial court allowed the jury to decide the legal claims and then properly disposed of the equitable claim of unjust enrichment. They also asserted that the verdict form allowed the result claimed to be inconsistent and that Stuart and Johnston did not object to the verdict form. Castles also filed an opposition to Johnston's renewed motion for a judgment as a matter of law.

On November 2, 2016, Johnston filed a "Reply/Supplement" to her Rule 59 motion and a response to Castles, Vickers, and Tibbetts' Rule 59 motion.

On November 4, 2016, the trial court denied Johnston's motion to alter, amend, or vacate the judgment or for a new trial; denied Johnston's renewed motion for a judgment as a matter of law; and denied the motion to alter or amend the judgment filed by the Castles, Vickers, and Tibbetts. This appeal followed.

Discussion

I.

Johnston argues that the trial court erred when it did not grant her motion for a new trial after expressly determining that the jury's verdict was inconsistent. Specifically, she asserts that the jury was bound to abide by the trial court's instructions and that the jury did not follow the trial court's instructions regarding the unjust-enrichment claim.

This Court addressed a similar situation in Clark v. Black, 630 So.2d 1012 (Ala. 1993). Clark involved an accident that occurred when a motorcycle being driven by Michael Clark collided with an automobile being driven by Tommie Black. Michael, by and through his parents as next friends, and his parents, individually, sued Black. The plaintiffs included a negligence claim against Black and sought damages for physical and mental suffering, loss of services and society, and medical expenses. They also alleged that Black had acted wantonly, and they requested punitive damages. The case eventually went to trial. During the trial, the trial court directed a verdict in favor of Black as to the wantonness claim. The jury then found in favor of Michael and his parents as to the negligence claim. It then awarded Michael $5,000 as past damages and $15,000 in future damages. It assessed Michael's parents' damages as $0. Subsequently, the Clarks moved for a new trial and argued, in pertinent part:

" 'The jury's verdict in favor of Michael, Tillman, and Carolyn Clark with an award of damages to Michael Clark but without an award of damages to Tillman and Carolyn Clark constitutes an inconsistent verdict as a matter of law.' "

Clark, 630 So.2d at 1014. The trial court denied the Clarks' postjudgment motion. On appeal, the Clarks argued that the jury's verdict was inconsistent and therefore invalid. This Court addressed this issue as follows:

"The jury resolved the liability issue in favor of all three plaintiffs; it awarded Michael $20,000, but awarded his parents, suing individually, $0, notwithstanding virtually uncontroverted evidence that Michael's medical expenses had exceeded by $5,000 the amount paid or covered by insurance. See generally Ala. Code 1975, § 12-21-45 (abolishing the 'collateral source rule'). The Clarks contend that such a verdict was inconsistent as a matter of law, and, consequently, that their motion for a new trial was due to be granted. Black contends that Michael's$20,000 award included compensation for medical expenses, and, therefore, she insists that the verdict is not inconsistent, because, she argues, in the complaint Michael, not his parents, sought compensation for medical expenses. We disagree with Black's contention.
"Regardless of the posture of the claims in the complaint for medical expenses, the trial judge, without objection, charged the jury that the parents were entitled to compensation for medical expenses incurred in the treatment of the minor. More specifically, he stated:
" 'Now, in this case, you have a suit that is brought by the parents of Michael Clark on his behalf. The evidence in the case is that Michael Clark is a minor and the law requires that the parents sue as next friend of the minor. Therefore, we have the claim of Michael Clark [that] is brought ... by the parents. Also, we have the claim of the parents, individually.
" '... [T]he parents, in their individual rights, are bringing a claim for medical expenses, nursing services provided to the child, and loss of services of their minor child for temporary disability, and loss of services for their minor child for permanent disability.
" '....
" 'The measure of damages for medical expenses is all reasonable expenses necessarily incurred for doctors and medical bills which the plaintiff[s have] paid or become obligated to pay and the amount of reasonable expenses of medical care, treatment, and services reasonably certain to be required in the future. The reasonableness of, and the necessity for, such expenses are matters for your determination from the evidence.
" '....
" 'If you are reasonably satisfied from the evidence that the plaintiff[s] paid, or became obligated to pay, medical expenses for the care and treatment of [their] minor child as a proximate consequence of the negligence of the defendant, then the plaintiff[s] would be entitled to recover the reasonable expense for such care and treatment as shown by the evidence as being reasonably necessary.'
"(Emphasis added.)
"Unchallenged jury instructions become the law of the case. Louisville & Nashville R.R. v. Atkins, 435 So.2d 1275 (Ala. 1983). The jury is bound to follow such instructions, even if they are erroneous. Lee v. Gidley, 252 Ala. 156, 40 So.2d 80 (1949) (erroneous instructions became the law of the case, and a judgment entered on the jury's verdict comporting with those instructions would not be reversed on appeal). 'A verdict contrary to [the court's instructions] would have to be set aside on motion' of the prejudiced party. New Hampshire Fire Ins. Co. v. Curtis, 264 Ala. 137, 142, 85 So.2d 441, 446 (1955).
"Pursuant to these principles, the jury was bound by the trial court's instructions to award damages to Tillman and Carolyn Clark for medical expenses if it resolved the liability issue in the Clarks' favor. Because it so resolved this issue, we hold that the jury's failure to award the parents any amount was inconsistent with the virtually uncontroverted evidence that medical expenses exceeded by approximately $5,000 the amount paid by insurance, and was contrary to the court's instructions. Consequently, the trial court erred in denying the Clarks' motion for a new trial."

630 So.2d at 1017-18 (some emphasis added; footnotes omitted). See also Monteleone v. Trail Pontiac, Inc., 395 So.2d 1003, 1005 (Ala. Civ. App. 1980) (holding that, "[w]here the jury disregards the instructions of the trial court, the court falls into error if it denies appellant's motion for new trial which raises the legality of the verdict. Edwards Chevrolet Co. v. Brokaw, 47 Ala. App. 631, 259 So.2d 838 (1972).").

"A verdict has been described as 'inconsistent' when the jury 'inconsistently resolved the same issue in two separate counts,' State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 319 (Ala. 1999), when the verdict appears to be 'the result of confusion,' City of Bessemer v. Foreman, 678 So.2d 759, 760 (Ala. 1996), or when the record in a case does not reveal a situation in which the jury's decisions can coexist, Ex parte Alfa Mut. Ins. Co., 799 So.2d 957, 962 (Ala. 2001). See also Smith v. Richardson, 277 Ala. 389, 391, 171 So.2d 96, 97 (1965) (stating that differing verdicts on separate but identical claims filed by separate parties were 'clearly inconsistent, having been rendered at the same time by the same jury, on identical facts, [and having] render[ed] speculative what the jury intended by its verdicts. Patently, the verdicts indicate confusion on the part of the jury.'). When a jury verdict is inconsistent, the proper remedy is a new trial. Bessemer, 678 So.2d at 760. This is so because 'any attempt to reconcile the inconsistencies in a verdict must be based on mere speculation about the jury's intent.' Id. ; see also A.L. Williams & Assocs., Inc. v. Williams, 517 So.2d 596, 598 (Ala. 1987) ('Where the jury verdict is the result of confusion or is inconsistent in law, the trial court should grant a new trial. A new trial is necessary, because once the jury is dismissed any attempt to reconcile the inconsistencies in a verdict amounts to mere speculation about the jury's intent.' (citation omitted))."

Jones Express, Inc. v. Jackson, 86 So.3d 298, 303-04 (Ala. 2010) (emphasis added).

"As this Court stated in Underwriters Nat'lAssurance Co. v. Posey, 333 So.2d 815, 817 (Ala. 1976) :
" 'When two actions are tried together, and inconsistent verdicts are rendered, sound practice requires that both verdicts be set aside without attempt by analysis of the evidence to determine which result the jury intended. This rule of law is based upon the principle that, where verdicts are inconsistent on their face the jury has misconceived the issues presented, or was prompted by bias.' "

Barnes v. Oswalt, 579 So.2d 1319, 1323 (Ala. 1991). Further,

"[t]his Court has written:
" 'Where a jury verdict is the result of confusion or is inconsistent in law, the trial court should grant a new trial; a new trial is necessary because, once the jury is dismissed, any attempt to reconcile the inconsistencies in a verdict must be based on mere speculation about the jury's intent.'
" City of Bessemer v. Foreman, 678 So.2d 759, 760 (Ala. 1996). See also Clark v. Black, 630 So.2d 1012 (Ala. 1993) ; Humana Med. Corp. v. Traffanstedt, 597 So.2d 667 (Ala. 1992)."

Ex parte Alfa Mut. Ins. Co., 799 So.2d 957, 962 (Ala. 2001).

In this case, the trial court instructed the jury to consider Castles' unjust-enrichment claim against Johnston if it did not find against Johnston on the conversion and conspiracy claims. The jury found against Johnston on both the conversion and conspiracy claims. However, it then considered the unjust-enrichment claim and found against Johnston on that claim as well. Thus, the jury's verdict was inconsistent with the trial court's instructions and was obviously the result of confusion on the part of the jury. After it had discharged the jury, the trial court acknowledged the inconsistency in the jury's verdict. The trial court attempted to cure that inconsistency by setting aside the award in favor of Castles on the unjust-enrichment claim. However, as this Court noted in Jones and Ex parte Alfa Mutual, the trial court's attempt to reconcile the inconsistency in the jury's verdict was based on mere speculation about the jury's intent. Additionally, the jury failed to follow the trial court's instructions, and Johnston moved for a new trial on that ground. Based on the decisions in Clark and Monteleone, Johnston was entitled to a new trial because the jury failed to follow the trial court's instructions. For these reasons, the trial court erred when it denied Johnston's motion for a new trial.

II.

Johnston also argues that, if this Court determines that she is entitled to a new trial, the new trial "must encompass both the claims asserted by Castles against Johnston and the counterclaims/third-party claims asserted by Johnston against Castles and ... Tibbetts." (Johnston's brief, at p. 32.)

" Rule 59(a) likewise addresses new trials: 'A new trial may be granted to all or any of the parties and (1) on all of the issues in an action where there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of Alabama.' (Emphasis added.) The rule is not prefaced by words such as 'on motion for new trial by one of the parties' or by any other words that would limit its application. It, too, requires a new trial as to all parties and all issues in this case."

Price-Williams Assocs., Inc. v. Nelson, 631 So.2d 1016, 1019-20 (Ala. 1994). Thus, Johnston is entitled to a new trial as Castles' conversion, conspiracy, and unjust-enrichment claims against her and as to her tortious-interference-with-business-and-contractual-relations and defamation claims against Castles and Tibbetts.

Conclusion

Based on the foregoing, the trial court erred when it denied Johnston's motion for a new trial. Accordingly, we reverse the trial court's judgment as to Castles' conversion, conspiracy, and unjust-enrichment claims against Johnston and her tortious-interference-with-business-and-contractual-relations and defamation claims against Castles and Tibbetts and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

Sellers, J., dissents.

SELLERS, Justice (dissenting).

I respectfully dissent. In order for verdicts to be legally irreconcilable, they must, on the basis of the same factual situation, be mutually exclusive. In this case, there were multiple verdicts in favor of the same party on all claims. The verdicts in and of themselves were not mutually exclusive. The record indicates that the trial court instructed the jury to engage in a two-step process, separating the counts alleging conversion and conspiracy from the count alleging unjust enrichment. In essence, the trial court instructed the jury that, if it found there had been conversion and conspiracy, then there was no need to consider the unjust-enrichment count. Only if the jury determined that there had been no conversion and conspiracy would the jury need to consider the unjust-enrichment count. After the jury returned verdicts on all three counts, the trial court acted within its discretion in eliminating the duplicative award for unjust enrichment. Ordering a new trial is an extreme remedy, and, based on these facts, I would affirm the trial court's judgment.

      Apparently, the summary judgment disposed of Stuart's counterclaim against Castles alleging libel, but not Stuart's counterclaim alleging slander against Castles or Johnston's counterclaim/third-party claim alleging defamation against Castles, Vickers, and Tibbetts.

      Although Vickers is shown as a movant on the Rule 59 motion, all claims against her appear to have been resolved by summary judgment and a judgment as a matter of law.

      Stuart also filed a notice of appeal in this Court, which was docketed as case no. 1160227. On June 23, 2017, counsel for Castles and Tibbetts filed a motion to dismiss the appeal, which this Court granted on July 28, 2017.


author: MURDOCK, Justice (dissenting).

text:
    EX PARTE LYON FRY CADDEN INSURANCE AGENCY INC.
    (In re Terry Williams et al. v. Precision Sand Products, LLC, et al.)
    1170235
    Supreme Court of Alabama.
    January 3, 2018
    ORDER
   The Petition for Writ of Mandamus filed by Lyon Fry Cadden Insurance Agency, Inc., on December 19, 2017, directed to the Honorable Clark Stankoski, Judge of the Circuit Court of Baldwin County, having been submitted to the Court,

IT IS ORDERED as follows:

1. That the Respondents, Judge Clark Stankoski and Precision Sand Products, LLC, file with the Clerk of this Court their answers to the said petition, a copy of which appears to have been served on them, or their attorneys, on December 19, 2017, with briefs in support of said answer(s), within fourteen (14) days from the date of this order; and,

2. That the Petitioner may file a brief in reply to Respondents' answers and briefs within seven (7) days from the date Respondents' answers and briefs are filed.

IT IS FURTHER ORDERED that the Clerk of this Court shall serve a copy of this order upon all parties to this cause, or their attorneys of record, electronically or by mailing a copy thereof to them by United States mail, postage prepaid.

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

Murdock, J., dissents.

MURDOCK, Justice (dissenting).

The Court today orders answer and briefs in response to a petition for a writ of mandamus filed by Lyon Fry Cadden Insurance Agency, Inc. ("LFC"). The petition asks this Court to reverse an order by the trial court denying LFC's motion to dismiss what is labeled as a "third-party complaint" against it filed by Precision Sand Products, LLC ("Precision"), complaining as to the adequacy of a commercial general-liability insurance policy issued by Nautilus Insurance Company ("Nautilus") and placed by LFC as an agent. I respectfully dissent.

Mandamus relief generally is not available to address a trial court's order denying a motion to dismiss. There is a limited set of issues that constitute exceptions to this general rule, including lack of subject-matter jurisdiction. See Ex parte Rhodes, 144 So.3d 316, 318 (Ala. 2013). None of the grounds for relief urged upon this Court by LFC implicate the subject-matter jurisdiction of the trial court or any other exception for which mandamus review is available. To the contrary, all the grounds for relief go to the merits of the claims asserted against LFC, including either their legal cognizability or Precision's inability to prove the elements of those claims at this juncture.

The only issue in this case that at first blush might appear to be an exception to the general rule is whether Precision's claims against LFC are "ripe." A lack of ripeness of a claim does in fact implicate the subject-matter jurisdiction of the court. In this case, however, if any of the claims by Precision are premature-and it is not clear to me that all of them are, given that some of them claim that the policy sold to Precision is inadequate and that this inadequacy is causing Precision presently to have to defend a declaratory-judgment action in federal court brought by Nautilus challenging coverage and to have to hire separate counsel in the underlying state-court action-that prematurity is not in the nature of a jurisdictional defect. It, rather, is more properly considered simply as an issue whether Precision can at this time prove all the elements of its claim against LFC. As I noted in my special writing in Ex parte Safeway Insurance Co. of Alabama, 990 So.2d 344 (Ala. 2008) :

"If we ... are to attach the label of 'ripeness,' then, at a minimum, we should recognize that we are in fact using that concept to measure the substantive sufficiency of the plaintiff's claim, or at least the substantive sufficiency of the plaintiff's proof at this juncture, that a wrongful act or decision by the insurer already has occurred. I believe we unnecessarily confuse our jurisprudence, and set a precedent that may have unforeseen consequences in future cases, to go the further step of holding that this brand of ripeness implicates the trial court's [subject-matter] jurisdiction."

990 So.2d at 354 (Murdock, J., concurring in the result).

I therefore respectfully dissent as to ordering answer and briefs in this case.


author: MAIN, Justice.

text:
    Ex parte State of Alabama
    (In re: STATE of Alabama v. Kentory Deshawn BROWN)
    1161087
    Supreme Court of Alabama.
    February 2, 2018
    Steve Marshall, atty. gen., and Andrew L. Brasher and James R. Houts, deputy attys. gen., for petitioner.
    Aylia McKee, chief public defender, and Linda M. Braye, asst. public defender, Office of the Public Defender, Montgomery, for respondent.
    Brian McVeigh, president, Alabama District Attorneys Association; and Barry Matson, executive director, Office of Prosecution Services, Montgomery, for amici curiae Alabama District Attorneys Association and Office of Prosecution Services, in support of the petitioner.
   MAIN, Justice.

The State of Alabama petitions for a writ of mandamus directing the presiding judge of the Montgomery Circuit Court to exercise his power of superintendence over the Montgomery District Court and to order that court to vacate its order granting Kentory Deshawn Brown's discovery request. We grant the petition and issue the writ.

Facts and Procedural History

On March 24, 2015, Brown was charged with third-degree burglary and second-degree theft of property. On March 25, 2015, in the district court, Brown filed a motion requesting the appointment of an attorney, a bond hearing, and a preliminary hearing. On April 13, 2015, Brown moved for the State to turn over all discovery permitted by Rule 16.1, Ala. R. Crim. P.; the district court granted the discovery motion on the same day it was filed. However, the State failed to provide the requested discovery.

After continuing the case on April 17, 2015, the district court held a preliminary hearing on May 1, 2015. At the beginning of the preliminary hearing, Brown again requested the discovery. In refusing to produce the requested discovery, the State argued (1) that the case was under active investigation and that nothing had been turned over to the district attorney's office by the Montgomery Police Department, (2) that the demand for discovery was premature because no indictment had been issued, and (3) that the district court had limited jurisdiction in felony criminal cases and, not being the trial court, could not order discovery. The district court indicated that it would issue an order requiring the State to produce the requested discovery, but the court proceeded with the preliminary hearing. On the same day as the preliminary hearing, the court found probable cause that the offenses had been committed and bound over both cases to the Montgomery County grand jury.

On May 4, 2015, the district court ordered the State to produce the requested discovery within seven days of the date of its order. On May 7, 2015, the State filed a motion to reconsider and a motion to stay the proceedings.

On May 11, 2015, the State filed a petition for a writ of mandamus with the Montgomery Circuit Court, requesting that the circuit court determine that the district court had exceeded its authority in ordering the State to produce discovery and order the district court to rescind its order requiring the State to produce discovery. On May 13, 2015, the circuit court denied the State's petition and ordered that the discovery be turned over "when available." Further, the circuit court stated that "the State may file specific objections to discovery requests that may impede investigations and such objections will be determined on a case by case basis." The circuit court also stayed its order pending appellate review.

On May 19, 2015, the State filed with the Court of Criminal Appeals a petition for a writ of mandamus and a motion to stay the proceedings while the petition was pending. On May 20, 2015, the Court of Criminal Appeals stayed the proceedings below. On September 1, 2017, in an opinion, the Court of Criminal Appeals denied the petition for a writ of mandamus. See State v. Brown, 259 So.3d 683 (Ala. Crim. App. 2017). The State petitioned this Court for a writ of mandamus on September 8, 2017.

Standard of Review

"In Ex parte Melton, 837 So.2d 819, 820-21 (Ala. 2002), this Court discussed the standard of review applicable to a petition for the writ of mandamus:
" ' "A writ of mandamus is an extraordinary remedy, and it will be 'issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.' Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala. 1991)."
" ' Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala. 1998).' "

Ex parte Ward, 957 So.2d 449, 451 (Ala. 2006).

Discussion

The State argues that the district court, as a court of limited jurisdiction, did not have jurisdiction to issue its order granting Brown's discovery request. The State asks this Court to direct the circuit court to fulfill its duty to superintend the district court and order the district court to vacate its discovery order. In response, Brown argues that the district court had jurisdiction to issue its discovery order. Brown agrees with the Court of Criminal Appeals' holding that, under Rule 2.2, Ala. R. Crim. P., the district court had concurrent jurisdiction with the circuit court to, among other things, grant Brown's discovery request.

Section 12-11-30(2), Ala. Code 1975, provides, in pertinent part, that "[t]he circuit court shall have exclusive original jurisdiction of all felony prosecutions and of misdemeanor or ordinance violations which are lesser included offenses within a felony charge or which arise from the same incident as a felony charge; except, that the district court shall have concurrent jurisdiction with the circuit court to receive pleas of guilty in felony cases not punishable by sentence of death." Section 12-12-32(b), Ala. Code 1975, provides that "[t]he district court may exercise original jurisdiction concurrent with the circuit court to receive pleas of guilty in prosecutions of offenses defined by law as felonies not punishable by sentence of death" and that "[t]he district court shall have jurisdiction to hold preliminary hearings in prosecutions for felonies as provided for in Title 15 of this code." Section 15-11-2, Ala. Code 1975, provides, in pertinent part, that "[t]he district court shall exercise exclusive jurisdiction to hold preliminary hearings in prosecutions for felonies." Similarly, Rule 2.2(a), Ala. R. Crim. P., provides:

"All felony charges and misdemeanor or ordinance violations which are lesser included offenses within a felony charge or which arise from the same incident as a felony charge shall be prosecuted in circuit court, except that the district court shall have concurrent jurisdiction to receive guilty pleas and to impose sentences in felony cases not punishable by sentence of death, including related and lesser included misdemeanor charges, and may hold preliminary hearings with respect to felony charges."

Therefore, in noncapital felony cases, a district court has authority only to hold preliminary hearings and to receive guilty pleas and impose sentences resulting from those guilty pleas.

In its opinion denying the State's petition, the Court of Criminal Appeals, after recognizing the plain-meaning rule of statutory construction, stated:

"In Alabama, district courts and circuit courts exercise concurrent jurisdiction to receive guilty pleas in prosecutions of offenses defined by law as felonies not punishable by a sentence of death. Further, district courts and circuit courts have jurisdiction to hold preliminary hearings in prosecutions of felonies not punishable by a sentence of death. See § 12-12-32(b), Ala. Code 1975, and Rule 2.2(a), Ala. R. Crim. P. Nothing in the plain language of § 12-12-32(b) or Rule 2.2(a), Ala. R. Crim. P., bars discovery by Brown. There is a section in Rule 16.1 that bars discovery of certain types of matters, i.e., internal State documents made by the prosecutor or by law-enforcement agents in connection with the investigation or prosecution of the case or statements made by State witnesses or prospective State witnesses. See Rule 16.1(e), Ala. R. Crim. P. Here, the circuit court's order granting discovery does not allow the discovery of such material.
"Although the State attempts to argue that district courts are limited solely to receiving pleas of guilty in felony cases and to holding preliminary hearings in prosecutions for felonies not involving a sentence of death, to so strictly limit the scope of the district court's jurisdiction in conducting such matters flies in the face of the district court's authority to function as a court whose jurisdiction is concurrent with the circuit court. Both courts, for example, may appoint counsel and may determine indigency of the defendant. See Rules 6.1 and 6.3, Ala. R. Crim. P.
"It is well established that ' "[d]iscovery matters are within the sound discretion of the trial judge.... The court's judgment on these matters will not be reversed absent a clear abuse of discretion and proof of prejudice resulting from the abuse." ' Smith v. State, 112 So.3d 1108, 1136 (Ala. Crim. App. 2012) (quoting Belisle v. State, 11 So.3d 256, 277 (Ala. Crim. App. 2007) ). Although there is no authority for discovery in the preliminary hearing stage, Rowland v. State, 460 So.2d 282, 284 (Ala. Crim. App. 1984), there is also no prohibition. The material that the district court and the circuit court ordered produced is permitted by Rule 16.1. It is well established that ' "[a] writ of mandamus will issue to compel the exercise of a trial court's discretion, but it will not issue to control or to review a court's exercise of its discretion unless an abuse of discretion is shown." ' Ex parte Alfa Mut. Ins. Co., 212 So.3d 915, 918 (Ala. 2016) (quoting Ex parte Yarbrough, 788 So.2d 128, 132 (Ala. 2000) ).
"Based on the above considerations, there was no abuse of discretion by the district court in its May 4, 2015, discovery order or by the circuit court in its May 13, 2015, discovery order. Although the right to discovery is not unlimited, the discovery ordered in this case is within the guidelines of Rule 16.1, Ala. R. Crim. P., and is proper. Additionally, it should be noted that the circuit court in its May 13, 2015, order, gave the State the option of filing specific objections to discovery requests on a document-by-document basis."

Brown, 259 So.3d at 687-88.

It appears that the Court of Criminal Appeals reasoned that the applicable statutes and rules implicitly vest a district court with the authority to perform functions in noncapital felony cases that are related to the district court's explicitly granted authority to hold preliminary hearings and to receive guilty pleas. Concerning the district court's authority to hold preliminary hearings, Brown and the Court of Criminal Appeals seem to gloss over the fact that the district court's May 4, 2015, discovery order was issued after the preliminary hearing was completed, probable cause was found, and the cases were bound over to the grand jury. Any issue concerning the first discovery order issued before the preliminary hearing or any issue concerning the district court's implicit authority to order discovery as a function of the district court's explicit authority to hold a preliminary hearing became moot when the cases were bound over to the grand jury. Further, "[w]ithin fourteen (14) days after waiver or conclusion of the preliminary hearing, all original papers and records shall be transmitted to the circuit court," and "[t]he grand jury proceedings may be challenged only by written motion to dismiss the indictment, filed in the circuit court and alleging grounds therefor." Rules 5.4(e) and 12.9(a), Ala. R. Crim. P. Also, the Court of Criminal Appeals has stated: "While it is an independent body in its deliberations, still the grand jury is a constituent part of the circuit court." Mayberry v. State, 48 Ala. App. 276, 283, 264 So.2d 198, 204 (Ala. Crim. App. 1971). Thus, the district court does not retain authority over a case once the case has been bound over to the grand jury. In the present case, the preliminary hearing was completed before the district court issued the discovery order on May 4; thus, that order could not have been issued pursuant to the district court's authority to hold preliminary hearings.

Concerning whether the district court had implicit authority to enter the May 4 discovery order pursuant to its explicit authority to receive guilty pleas, we note that an indictment is required to initiate a felony prosecution and that a defendant can waive the indictment and plead guilty by way of an information only under the terms of § 15-15-20.1, Ala. Code 1975, which implemented Article I, § 8, Ala. Const. 1901, as amended by Amendments No. 37 and No. 598. See Kennedy v. State, 39 Ala. App. 676, 690, 107 So.2d 913, 926 (1958) (stating that "the [defendant] cannot waive the absence of an indictment: waiver thereof is only possible under the terms of Amendment 37, supra, when a prisoner desires to plead guilty while awaiting action of a prospective grand jury on a noncapital felony charge"). The present case was bound over to the grand jury, and no indictment or information had been issued when the district court issued its May 4 discovery order. Thus, at that point in time, Brown could not plead guilty and the district court could not receive a guilty plea. Because the district court could not at that time receive a guilty plea, the court did not have implicit authority to enter the discovery order related to its explicit authority to receive guilty pleas.

In the present case, when the district court issued its May 4 discovery order, the district court had already completed its function of holding a preliminary hearing and could not yet exercise its function of receiving a guilty plea. Therefore, the district court did not have any basis of authority on which to issue its May 4 discovery order.

Conclusion

Based on the foregoing, we hold that the State has demonstrated a clear legal right to a writ of mandamus directing the presiding judge of the Montgomery Circuit Court to vacate his order denying the State's petition for a writ of mandamus that was filed in that court and to direct the Montgomery District Court to vacate its order granting Brown's discovery request.

PETITION GRANTED; WRIT ISSUED.

Bolin, Parker, Wise, and Sellers, JJ., concur.

Stuart, C.J., and Shaw and Bryan, JJ., concur in the result.

STUART, Chief Justice (concurring in the result).

I concur with the majority's conclusion that the State has demonstrated a clear legal right to a writ of mandamus directing the Montgomery Circuit Court to vacate its order denying the State's petition for a writ of mandamus and to issue a writ directing the Montgomery District Court to vacate its order granting Kentory Deshawn Brown's discovery request. I believe that because a district court's jurisdiction is limited in felony cases and the proceedings within the district court's limited jurisdiction do not involve discovery, a district court does not have authority to issue discovery orders in felony cases.

Circuit courts have jurisdiction over felony cases, both capital and noncapital. § 12-12-32(a)(1), Ala. Code 1975. District courts have limited jurisdiction with regard to felony cases. Specifically, § 12-12-32(b), Ala Code 1975, provides that the district court has "original jurisdiction concurrent with the circuit court to receive pleas of guilty" in noncapital felony cases and exclusive jurisdiction to hold preliminary hearings in felony prosecutions. Thus, the district court's authority is restricted to matters that fall within the those two proceedings in felony cases.

The district court's jurisdiction in noncapital felony cases is specifically limited to accepting pleas of guilty, as provided in § 12-12-32(b)(1). Discovery is not a component of a guilty-plea proceeding. Therefore, because the district court does not have authority to entertain any matter presented by a defendant in a noncapital felony case other than a matter involved in the entry of a plea of guilty when exercising its jurisdiction pursuant to § 12-12-32(b)(1), the district court exceeds its authority when it addresses discovery matters.

A district court also has exclusive jurisdiction to conduct a preliminary hearing in felony cases to determine probable cause. § 12-12-32(b)(2), Ala. Code 1975. The Court of Criminal Appeals in Daniels v. State, 335 So.2d 412, 414 (Ala. Crim. App. 1976), explained a defendant's right to, and the purpose of, a preliminary hearing:

"The right of a defendant to a preliminary hearing in a felony case is with reference only to his status at the time. He is then in custody or under bond. He has the right to a reasonably prompt hearing. The purpose thereof is to afford him an opportunity to test the validity of his confinement, or of his subjection to bond, by a judicial determination of the question of probable cause, which, if favorable to him would entitle him to discharge from the particular proceeding, not absolution, however, from the alleged crime. It so happens that at such a preliminary hearing a defendant obtains some information, and sometimes tremendously valuable information, as to evidence that is likely to be presented against him on the trial of his case. This, however, is merely a legitimate by-product of the process that is not embraced within the policy providing for it. A preliminary hearing is not a prerequisite to a valid indictment. The committing magistrate, or other judicial officer conducting a preliminary hearing, and the grand jury act independently of each other. Even if the judicial officer conducting the preliminary hearing finds there is no probable cause and discharges defendant, the grand jury may theretofore or thereafter lawfully find probable cause and return an indictment as to the same alleged crime."

Thus, during a preliminary hearing, the district court determines whether probable cause that the defendant has committed an offense exists and, consequently, whether the defendant's confinement or release, subject to the conditions of bail, is proper.

The district court's jurisdiction to conduct preliminary hearings in felony cases does not authorize the district court to address discovery matters. A preliminary hearing addresses probable cause to confine the defendant and to proceed with a prosecution. A defendant conducts discovery to obtain evidence that is likely to be presented against him or her at trial. It is premature to order the State at the preliminary-hearing stage to provide evidence in the State's possession because the need for discovery of evidence that may be used against a defendant at trial does not begin until a determination to prosecute the case is made, i.e., until an indictment issues. The need for discovery is a consequence, not a component, of a preliminary hearing. It is true that a defendant may learn of evidence during a preliminary hearing that may be presented at a trial against him or her; that, however, is a boon from the preliminary hearing, not a product of the district court's authority.

Simply, the jurisdiction granted district courts in felony cases is limited. The jurisdiction granted a district court in felony cases to accept pleas of guilty in noncapital felony cases and to conduct preliminary hearings in all felony cases to determine probable cause extends only over those proceedings, and those proceedings do not involve discovery determinations; therefore, the district court here exceeded the scope of its authority when it entered a discovery order in this case, and the Montgomery Circuit Court erred in refusing to direct the district court to vacate its order.

      "The circuit court shall exercise a general superintendence over all district courts, municipal courts, and probate courts." § 12-11-30(4), Ala. Code 1975.

      Article I, § 8, Ala. Const. 1901, provides:
      "No person shall for any indictable offense be proceeded against criminally by information, except in cases arising in the militia and volunteer forces when in actual service, or when assembled under arms as a military organization, or, by leave of the court, for misfeasance, misdemeanor, extortion, and oppression in office, otherwise than is provided in the Constitution.... In all felony cases, except those punishable by capital punishment, the Legislature may by law dispense with a grand jury and authorize prosecutions and proceedings in any manner as may be provided by law if the defendant, after having had the advice of counsel of his or her choice or in the event he or she is unable to employ counsel, the advice of counsel which shall be appointed by the court, makes known in open court to a judge of a court having jurisdiction of the offense that he or she desires to plead guilty."
      Section 15-15-20.1, Ala. Code 1975, provides, in pertinent part:
      "(a) In any criminal proceeding for a noncapital felony offense commenced by complaint, the defendant may give written notice three days after his or her arrest to a judge of the district or circuit court of the county having jurisdiction of the offense charged that the defendant desires to plead guilty as charged or as a youthful offender upon the granting of youthful offender status.
      "(b) Upon receipt of the written notice from the defendant stating his or her desire to plead guilty, the court shall direct the district attorney to prefer and file an information against the defendant. The information shall be made under oath of the district attorney or a witness, and shall accuse the defendant with the same specificity as required in an indictment of the offense or offenses for which the defendant is charged...."