author: PARKER, Justice.

text:
    Jimmy E. NATION et al. v. LYDMAR REVOCABLE TRUST
    1160660
    Supreme Court of Alabama.
    September 22, 2017
    Justin L. Jones and James C. King of King, Wiley & Williams, Jasper, for appellants.
    Benjamin T. Larkin, Bessemer, for appellee.
   PARKER, Justice.

Jimmy E. Nation, Oliver D. McCollum, James P. Pickle, James W. Nation, Micah J. Nation, and Benjamin J. Chemeel II (hereinafter collectively referred to as "the defendants") appeal the Jefferson Circuit Court's denial of their motion to compel arbitration of a breach-of-contract claim filed against them by the Lydmar Revocable Trust ("Lydmar").

Facts and Procedural History

Lydmar owned a 75% membership interest in Aldwych, LLC. On March 27, 2008, Lydmar and the defendants entered into an agreement ("the agreement") pursuant to which Lydmar agreed to sell its membership interest in Aldwych, LLC, to the defendants for a purchase price of $1,550,000. The defendants paid Lydmar $900,000 at the time the agreement was executed and simultaneously executed two promissory notes for the balance of the purchase price.

The agreement contains a section entitled "Arbitration," which states:

"16.1 This Agreement provides for binding arbitration, which is the final, exclusive and required forum for the resolution of all disputes that may occur between the parties ... that are based on a 'legal claim.' If the dispute cannot be resolved and the matter is based upon a legal claim, the parties ... may initiate the arbitration process at any time, even if suit has already been filed. A dispute is based upon a 'legal claim' and is subject to this agreement if it arises or involves a claim under any federal, state or local statute, regulation, or common law doctrine. ...
"16.2 The rules and procedures to be used by the parties are based on the rules of the American Arbitration Association ('AAA'). The parties hereto reserve the right to mutually agree to modify or expand these rules and procedures.
"16.3 The arbitrator shall follow the rules of law of the State of Alabama, any applicable Federal law, any applicable statute of limitations, and any rules stated in the Agreement. The arbitrator shall have the authority to grant any remedy or relief that the arbitrator deems just and equitable and which is consistent with applicable law.
"16.4 The expenses of witnesses or experts for either side shall be paid by the party requiring the presence of such witnesses. Each side shall pay its own legal fees and expenses.
"16.5 To the fullest extent available under the law, the parties ... hereby waive their right to a trial before a jury for a legal claim, even if a court holds the other provisions of this Agreement unenforceable."

Additionally, the promissory notes contain nearly identical arbitration provisions to the one in the agreement.

On December 31, 2014, Lydmar sued the defendants asserting that the defendants had breached the agreement and the accompanying promissory notes. Specifically, Lydmar alleged that the defendants had breached their promises to repay the notes by failing to make the required payments. On March 5, 2015, the defendants filed an answer to Lydmar's complaint and asserted counterclaims alleging fraud, breach of contract and/or failure of consideration, fraudulent transfer of assets, and constructive trust.

At the request of the parties, the circuit court delayed setting the matter for a bench trial until they had an opportunity to resolve the case without a trial. The parties' attempts failed. Accordingly, on May 31, 2016, the defendants filed a motion to compel arbitration of Lydmar's breach-of-contract claim. Lydmar did not file a response to the defendants' motion to compel arbitration.

On July 7, 2016, the circuit court granted the defendants' motion to compel arbitration. The circuit court's order states, in pertinent part: "The cou[rt] finds a valid arbitration agreement governs the promissory note issues of [Lydmar's] claims and allegations. Further, the written agreement involves interstate commerce and is within the provisions of the Federal Arbitration Act." The circuit court further ordered the clerk of the circuit court to place the case on the circuit court's administrative docket "pending further orders of this court."

However, after the circuit court ordered the arbitration of Lydmar's claim, neither the defendants nor Lydmar initiated the arbitration process. Accordingly, on February 6, 2017, the defendants filed with the circuit court a motion to dismiss Lydmar's breach-of-contract claim; the motion was based on Lydmar's failure to initiate the arbitration proceedings. The defendants argued that it was Lydmar's responsibility to initiate the arbitration process and that Lydmar had failed to take any action toward fulfilling its responsibility to do so. Accordingly, citing Rule 41(b), Ala. R. Civ. P., the defendants requested that Lydmar's claim be dismissed without prejudice.

On March 2, 2017, Lydmar filed a response to the defendants' motion to dismiss. Lydmar did not contest the existence of the arbitration provisions requiring arbitration of its claim, but argued only that, under the Commercial Arbitration Rules of the American Arbitration Association ("AAA"), the defendants, and not Lydmar, had the responsibility to initiate the arbitration process. Because the defendants failed to do so in a reasonable time, Lydmar argued, the case was due to be returned to the active docket of the circuit court so that Lydmar could litigate its claim against the defendants in that court.

On March 15, 2017, the circuit court denied the defendants' motion to dismiss. In the same order, the circuit court ordered the clerk of the circuit court to return the case to the active docket. Although not expressly stated in the order, it appears that the circuit court, by returning the case to the active docket, effectively reversed its own order entered on July 7, 2016, granting the defendants' motion to compel arbitration. On March 22, 2017, the circuit court entered a scheduling order setting the case for a bench trial to occur during the week of June 5, 2017. The defendants appealed.

Standard of Review

Our standard of review of a ruling on a motion to compel arbitration is well settled:

" ' "This Court reviews de novo the denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala. 2000). A motion to compel arbitration is analogous to a motion for a summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala. 1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction affecting interstate commerce. Id.'[A]fter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.' Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala. 1995) (opinion on application for rehearing)." ' "

Chris Myers Pontiac-GMC, Inc. v. Perot, 991 So.2d 1281, 1282-83 (Ala. 2008) (quoting Elizabeth Homes, L.L.C. v. Gantt, 882 So.2d 313, 315 (Ala. 2003), quoting in turn Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala. 2000) ).

Discussion

The defendants first argue on appeal that they met their initial "burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction affecting interstate commerce." Perot, 991 So.2d at 1283. In support of their motion to compel arbitration, the defendants submitted to the circuit court copies of the agreement and the promissory notes, each of which contains an arbitration provision. Based on the agreement and promissory notes, the defendants demonstrated that their purchase of Lydmar's membership interest in Aldwych is a transaction affecting interstate commerce. This evidence of the existence of "a contract calling for arbitration and ... that the contract evidences a transaction affecting interstate commerce" was not refuted by Lydmar. Id. In fact, Lydmar did not even file a response to the defendants' motion to compel arbitration and offers no argument on appeal concerning this issue. Because the defendants had met their burden and Lydmar made no response, the circuit court, on July 7, 2016, granted the defendants' motion to compel arbitration.

Nevertheless, on March 15, 2017, the circuit court entered an order returning the case to the court's active docket. On March 22, 2017, the circuit court then entered a scheduling order setting the case for a bench trial during the week of June 5, 2017. We interpret those orders as effectively reversing its decision on the same motion to compel arbitration filed by the defendants that the circuit court had granted on July 7, 2016. The circuit court did not provide any reasoning explaining its reversal, and we can find no definite explanation in the record before us. However, because Lydmar did not produce any evidence indicating that the arbitration provisions in the agreement and promissory notes were invalid or that they did not apply to the dispute in question, we presume that the circuit court found convincing Lydmar's argument, made in response to the defendants' motion to dismiss, that the obligation to initiate the arbitration process was on the defendants and, by failing to initiate the process in a reasonable time, the defendants had waived their right to arbitration. This is the very argument Lydmar makes to this Court on appeal. The defendants argue that nothing in the arbitration provisions or the Commercial Arbitration Rules of the AAA place on the defendants an obligation to initiate the arbitration process and, thus, that they did not waive their right to arbitration by failing to initiate the arbitration process. We agree with the defendants.

In order to determine if the circuit court erred in reversing its order granting the motion to compel arbitration and returning the case to the active docket, we must determine whether the arbitration provisions in the agreement and the notes, which incorporate the Commercial Arbitration Rules of the AAA, placed an obligation on the defendants to initiate the arbitration process. In answering this question, we must, of course, look to the terms of the arbitration provisions. In Perot, this Court stated:

"This Court has held that a trial court, in granting a motion to compel arbitration, cannot alter or ignore the terms of the arbitration agreement that provides the basis for compelling arbitration. See, e.g., Southern Energy Homes Retail Corp. v. McCool, 814 So.2d 845, 849 (Ala. 2001) (granting the petition for the writ of mandamus where the trial court 'failed to compel arbitration in a manner consistent with the terms of [the] arbitration provision'); and Ex parte Cappaert Manufactured Homes, 822 So.2d 385, 387 (Ala. 2001) ('[Section] 5 [of the Federal Arbitration Act] mandates that the method set forth in the arbitration agreement be followed.').... ' "Agreements to arbitrate are essentially creatures of contract," and ordinary contract rules govern the interpretation of arbitration provisions.' Orkin Exterminating Co. v. Larkin, 857 So.2d 97, 103 (Ala. 2003) (quoting Blount Int'l, Ltd. v. James River-Pennington, Inc., 618 So.2d 1344, 1346 (Ala. 1993) ). 'When interpreting a contract, a court should give the terms of the contract their clear and plain meaning and should presume that the parties intended to do what the terms of the agreement clearly state.' Brewbaker Motors, Inc. v. Belser, 776 So.2d 110, 112 (Ala. 2000)."

991 So.2d at 1283-84. The arbitration provisions at issue in the present case all essentially state, in pertinent part:

"This Agreement provides for binding arbitration, which is the final, exclusive and required forum for the resolution of all disputes that may occur between the parties ... that are based on a 'legal claim.' If the dispute cannot be resolved and the matter is based upon a legal claim, the parties ... may initiate the arbitration process at any time, even if suit has already been filed. A dispute is based upon a 'legal claim' and is subject to this agreement if it arises or involves a claim under any federal, state or local statute, regulation, or common law doctrine. ..."

Nothing in the arbitration provisions requires the defendants to initiate the arbitration process. The arbitration provisions simply state that "the parties ... may initiate the arbitration process at any time." (Emphasis added.) No language requires either party to initiate the arbitration process. Therefore, under the plain language of the arbitration provisions, we cannot conclude that the arbitration provisions require the defendants to initiate the arbitration process.

The defendants also argue that nothing in the Commercial Arbitration Rules of the AAA, which are incorporated into the arbitration provisions, requires them to initiate the arbitration process. This Court considered a similar situation in Perot, supra. In Perot, Larry C. Perot and Bobbi M. Perot purchased a vehicle from Chris Myers Pontiac-GMC, Inc., d/b/a Chris Myers Automotive. At the time of the purchase, the Perots signed an arbitration agreement. After purchasing the vehicle, the Perots sued Chris Meyers Automotive, alleging various claims related to a water-leakage problem with the purchased vehicle. Chris Meyers Automotive filed a motion to compel arbitration of the Perots' claims, which the circuit court granted. However, neither party initiated the arbitration process. Accordingly, the Perots filed a motion with the circuit court requesting that the circuit court compel Chris Meyers Automotive to initiate the arbitration process or, in the alternative, to reconsider its order compelling arbitration and allow them to litigate their claims against Chris Myers Automotive in that court. The circuit court entered an order stating that it was ex mero motu denying Chris Meyers Automotive's motion to compel arbitration. Chris Meyers Automotive appealed.

On appeal, this Court explained that the issue to be decided was whether Chris Meyers Automotive had the obligation to initiate the arbitration process and, if so, whether Chris Meyers Automotive had waived its right to arbitration by failing to initiate the process. This Court addressed the issue on two alternative grounds. First, this Court determined that the language of the arbitration agreement in that case, unlike the language in the arbitration provisions at issue in this case, obligated the Perots, as the plaintiffs, to initiate the arbitration process.

Second, in addition to the plain language of the arbitration agreement, this Court also determined that the Commercial Arbitration Rules of the AAA, which had been incorporated into the arbitration agreement at issue in Perot, obligated the plaintiffs to initiate the arbitration process. The applicable rule was Rule R-4 of the Commercial Arbitration Rules of the AAA, which is also the applicable rule in this case and which stated, at that time:

" ' "R-4. Initiation under an Arbitration Provision in a Contract
" ' "(a) Arbitration under an arbitration provision in a contract shall be initiated in the following manner:
" ' "i. The initiating party (the 'claimant') shall, within the time period, if any, specified in the contract(s), give to the other party (the 'respondent') written notice of its intention to arbitrate (the 'demand'), which demand shall contain a statement setting forth the nature of the dispute, the names and addresses of all other parties, the amount involved, if any, the remedy sought, and the hearing locale requested.
" ' "ii. The claimant shall file at any office of the AAA two copies of the demand and two copies of the arbitration provisions of the contract, together with the appropriate filing fee as provided in the schedule included with these rules.
" ' "iii. The AAA shall confirm notice of such filing to the parties." ' "

Perot, 991 So.2d at 1284-85 (quoting Northcom, Ltd. v. James, 848 So.2d 242, 246 (Ala. 2002), quoting in turn the Commercial Arbitration Rules of the AAA). This Court concluded that, "[u]nder this rule, it is clear that the 'claimant,' that is, the party asserting a claim, has the burden of initiating arbitration." 991 So.2d at 1285. Accordingly, this Court determined in Perot that, under the Commercial Arbitration Rules of the AAA, the obligation to initiate the arbitration proceedings rested with the plaintiffs. See also Northcom, Ltd. v. James, 848 So.2d at 246 (relying upon Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33 (Ala. 1998), Huntley v. Regions Bank, 807 So.2d 512 (Ala. 2001), and Universal Underwriters Life Ins. Co. v. Dutton, 736 So.2d 564 (Ala. 1999), in holding that, under a previous, but similar, version of Rule R-4, "the party asserting a legal claim, i.e., the plaintiff, must initiate arbitration proceedings").

As in Perot, the arbitration provisions here also incorporate the entirety of the Commercial Arbitration Rules of the AAA; the parties agree that the Commercial Arbitration Rules of the AAA apply. The parties further agree that Rule R-4 is the applicable rule that answers the question this Court has been asked to decide. This is the same rule this Court interpreted in Perot to mean that the plaintiff has the burden to initiate the arbitration process once the circuit court has entered an order compelling arbitration. However, as Lydmar notes, Rule R-4 has been amended since Perot, Northcom, Ex parte Dan Tucker Auto Sales, Huntley, and Dutton were decided. Rule R-4 now states:

"R-4. Filing Requirements
"(a) Arbitration under an arbitration provision in a contract shall be initiated by the initiating party ('claimant') filing with the AAA a Demand for Arbitration, the administrative filing fee, and a copy of the applicable arbitration agreement from the parties' contract which provides for arbitration.
"(b) Arbitration pursuant to a court order shall be initiated by the initiating party filing with the AAA a Demand for Arbitration, the administrative filing fee, and a copy of any applicable arbitration agreement from the parties' contract which provides for arbitration.
"i. The filing party shall include a copy of the court order.
"ii. The filing fee must be paid before a matter is considered properly filed. If the court order directs that a specific party is responsible for the filing fee, it is the responsibility of the filing party to either make such payment to the AAA and seek reimbursement as directed in the court order or to make other such arrangements so that the filing fee is submitted to the AAA with the Demand.
"iii. The party filing the Demand with the AAA is the claimant and the opposing party is the respondent regardless of which party initiated the court action. Parties may request that the arbitrator alter the order of proceedings if necessary pursuant to R-32.
"(c) It is the responsibility of the filing party to ensure that any conditions precedent to the filing of a case are met prior to filing for an arbitration, as well as any time requirements associated with the filing. Any dispute regarding whether a condition precedent has been met may be raised to the arbitrator for determination.
"....
"(e) Information to be included with any arbitration filing includes:
"i. the name of each party;
"ii. the address for each party, including telephone and fax numbers and e-mail addresses;
"iii. if applicable, the names, addresses, telephone and fax numbers, and e-mail addresses of any known representative for each party;
"iv. a statement setting forth the nature of the claim including the relief sought and the amount involved; and
"v. the locale requested if the arbitration agreement does not specify one."

Lydmar argues that Rule R-4 "makes clear that if a defendant in a lawsuit invokes the arbitration clause of a contract, then that defendant is the party who must file a demand with the AAA to initiate the arbitration, even though it was the plaintiff who filed suit." Lydmar's brief, at p. 8. Lydmar focuses this Court's attention on the language in Rule R-4 stating: "Arbitration pursuant to a court order shall be initiated by the initiating party filing with the AAA a Demand for Arbitration" and "[t]he party filing the Demand with the AAA is the claimant and the opposing party is the respondent regardless of which party initiated the court action." Lydmar does not, however, offer any analysis of how the language in those provisions places the burden to initiate the arbitration process on a defendant that has had a motion to compel arbitration granted. We do not find Lydmar's argument convincing.

In fact, we do not read anything in Rule R-4, or any other aspect of the Commercial Arbitration Rules of the AAA, placing the burden to initiate the arbitration process on a defendant that has successfully petitioned a circuit court to compel arbitration of the claims asserted against it. Rather, Rule R-4 makes clear that either party may demand arbitration by filing with the AAA a written demand for arbitration. Accordingly, as in Perot, we conclude that nothing in the Commercial Arbitration Rules of the AAA obligates the defendants to initiate the arbitration process. The defendants may certainly do so if they so choose, but we cannot say that they are obligated to do so under the arbitration provisions at issue in this case or under the Commercial Arbitration Rules of the AAA.

Conclusion

The defendants submitted evidence showing that Lydmar signed a contract agreeing that all disputes between them related to the defendants' purchase of Lydmar's membership interest in Aldwych would be settled in arbitration and that the contract evidenced a transaction affecting interstate commerce. Lydmar did not refute that evidence, nor did it establish that the defendants waived their right to rely on those arbitration provisions. Therefore, the circuit court erred by returning the case to its active docket and effectively denying the defendants' motion to compel arbitration; its March 15, 2017, order so doing is hereby reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

Bolin, Shaw, and Sellers, JJ., concur in the result.

      Although the circuit court's order states that Lydmar had asserted claims, it appears that Lydmar asserted only one breach-of-contract claim against the defendants.

      Although it is unnecessary for us in this case to address the issue whether Lydmar, as the plaintiff, has an obligation to initiate the arbitration process, we note that the amended version of the Commercial Arbitration Rules of the AAA does not appear to be substantially different in spirit from the pre-amended version of the rules as to that issue, i.e., who may initiate arbitration proceedings. Concerning the pre-amended version of Rule R-4, this Court stated in Northcom, Ltd v. James, 848 So.2d at 246-47 :
      "Our caselaw clearly dictates that under the Commercial Arbitration Rules, the party asserting a legal claim, i.e., the plaintiff, must initiate arbitration proceedings.
      " '[T]he Commercial Arbitration Rules state[ ] that the "initiating party (hereinafter claimant)" shall file the "appropriate filing fee" as mandated in the schedule accompanying the rules. That same rule later explains that after the "claimant" has stated the nature of the dispute, the respondent shall file an answering statement and send that statement to the claimant. The word "claimant" is defined in Black's Law Dictionary (6th ed. 1990) as "[o]ne who claims or asserts a right, demand or claim." The word "respondent" is defined in Black's as "one who makes an answer to a bill or other proceeding in equity" or one "who contends against an appeal." Considering these words in light of their plain meaning, we conclude that the "claimant" is the party who makes a demand upon another party and that the "respondent" is the party who must answer the allegations.
      " 'If we apply these general definitions to the facts of this case, it would be awkward to interpret the Commercial Arbitration Rules to mean that Tucker [the defendant below] is the claimant. Such an interpretation would force Tucker to state the nature of the claims against itself. Equally as awkward, this interpretation would then force Phelps [the plaintiff below] to answer the very complaint that he filed against Tucker. It is unreasonable to believe that the parties in this case intended to apply the terms "initiating party" and "claimant" to Tucker, the party defending itself against Phelps. Judging from the plain meaning of these labels as they are used in the Rules and from what the parties intended by the terms "claimant" and "initiating party," it is clear that Phelps is the claimant and Tucker is the respondent.'
      "Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d [33,] 36 [ (Ala. 1998) ] (some alterations original; some alterations added). See also Huntley v. Regions Bank, 807 So.2d 512 (Ala. 2001) (rejecting Regions Bank's argument that Huntley, the defendant, failed to properly invoke the arbitration agreement and holding that Regions Bank, as the plaintiff, bore the burden of properly invoking the arbitration agreement); and Universal Underwriters Life Ins. Co. v. Dutton, 736 So.2d 564 (Ala. 1999) (holding that the plaintiffs were the 'claimants' under the AAA's Commercial Arbitration Rules and that the claimants, as the initiating parties, were responsible for advancing the filing fee)."
      See also In re Bruce Terminix Co., 988 S.W.2d 702, 706 (Tex. 1998) ("It would be anomalous to require the party against whom relief is sought to present its opponent's case and pay a filing fee whose amount is based on the size of its opponent's claim. ... By agreeing to the AAA rules, [the parties to the arbitration agreement] placed the burden of initiating arbitration on the party seeking relief."); 1 Domke on Commercial Arbitration § 18:1 (3d ed. 2008) ("An initial question ... is whether the arbitration proceeding must be initiated by the party making the claim or by the party desiring the arbitration. Generally, it is the party seeking substantive relief which must initiate the arbitration, rather than the respondent."); and 3 Commercial Arbitration § 44:2 ("Where a contract does place the initial burden to commence arbitration [with the arbitrator] on either party, that duty to demand arbitration [with the arbitrator] rests with the party seeking relief."). This logic also appears to apply to the current version of the Commercial Arbitration Rules of the AAA.

      In his concurrence in the result in Perot, Justice Murdock noted that, although a party in the position of the defendants "might be thought of as less likely to initiate an arbitration proceeding, its doing so would be comparable to a potential defendant filing a declaratory-judgment action in a court of law to resolve a dispute between it and a potential plaintiff." Perot, 991 So.2d at 1286 n. 3 (Murdock, J., concurring in the result).


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    H.C. v. S.L.
    2160304
    Court of Civil Appeals of Alabama.
    September 15, 2017
    Kelly R. Knight of Gorham & Knight, LLC, Birmingham, for appellant.
    Kevin R. Roberts, Birmingham, for appellee.
    Benita Jenkins, Birmingham, guardian ad litem.
   THOMPSON, Presiding Judge.

On August 12, 2015, S.L. ("the paternal grandmother") filed in the Jefferson Juvenile Court, Bessemer Division ("the juvenile court"), a petition seeking to have N.L. ("the child") declared dependent and seeking an award of custody of the child. The juvenile court entered an order on September 1, 2015, finding the child dependent and awarding the paternal grandmother pendente lite custody of the child. A similar order was entered on October 19, 2015. It is undisputed that H.C. ("the mother") had not been served at the time either of those orders was entered. The paternal grandmother filed an amended dependency petition on December 11, 2015.

The juvenile court conducted a hearing on May 11, 2016, and July 5, 2016. At the close of that hearing, the juvenile court orally found the child dependent, cited reasons for that finding, and scheduled a dispositional hearing for December 2016, during which, it said, it would receive additional evidence from the parties. The juvenile court entered an order on July 8, 2016, in which it found the child dependent, awarded custody to the paternal grandmother, and ordered the attorneys for the parties and the child's guardian ad litem to agree on a visitation schedule for the mother for the fall of 2016. In that order, the juvenile court scheduled the dispositional hearing for December 15, 2016.

The juvenile court conducted the dispositional hearing on December 15, 2016, and December 16, 2016. On December 22, 2016, the juvenile court entered a judgment in which it noted that the child had previously been found dependent, awarded custody of the child to the paternal grandmother, and closed the case. The mother filed a postjudgment motion that was denied by operation of law on January 18, 2017. See Rule 59.1, Ala. R. Civ. P.; Rule 1(B), Ala. R. Juv. P. On January 19, 2017, the juvenile court purported to enter a postjudgment order amending the December 22, 2016, judgment. However, once the mother's postjudgment motion had been denied by operation of law, the juvenile court lost jurisdiction to enter that January 19, 2017, postjudgment order. R.J.G. v. S.S.W., 42 So.3d 747, 751 (Ala. Civ. App. 2009). Regardless, the mother timely appealed.

The mother argues on appeal that the juvenile court erred in awarding custody of the child to the paternal grandmother because, she says, the child was not dependent at the time the December 22, 2016, dispositional judgment was entered. In order to make a custodial disposition of the child at the time the December 2016 dispositional judgment was entered, the juvenile court was required to find that the child was dependent at the time of the disposition. T.B. v. T.H., 30 So.3d 429, 431 (Ala. Civ. App. 2009). " '[I]n order to make a disposition of a child in the context of a dependency proceeding, the child must in fact be dependent at the time of that disposition.' " V.W. v. G.W., 990 So.2d 414, 417 (Ala. Civ. App. 2008) (quoting K.B. v. Cleburne Cty. Dep't of Human Res., 897 So.2d 379, 389 (Ala. Civ. App. 2004) (Murdock, J., concurring in the result)). See also D.D.P. v. D.M.B., 173 So.3d 1, 3 (Ala. Civ. App. 2015) (same). If the child is not dependent at the time of the dispositional judgment, the juvenile court lacks jurisdiction to make a custody determination. M.D. v. S.C., 150 So.3d 210, 212 (Ala. Civ. App. 2014) ; L.R.J. v. C.F., 75 So. 3d 685, 687 (Ala. Civ. App. 2011) ; see also C.C. v. B.L., 142 So.3d 1126, 1129 (Ala. Civ. App. 2013) ("In light of the juvenile court's finding that the child was not dependent, the juvenile court lacked jurisdiction to enter a judgment affecting the custody of the child, including visitation.").

We note that in a situation in which the evidence clearly supports a dependency determination but in which the juvenile court has omitted an explicit dependency finding, this court has held that a dependency determination may be implicit in the judgment. See, e.g., S.L.M. v. S.C., 171 So.3d 656 (Ala. Civ. App. 2013) ; M.W.H. v. R.W., 100 So.3d 603, 607 (Ala. Civ. App. 2012) ; and J.P. v. S.S., 989 So.2d 591, 598 (Ala. Civ. App. 2008). In J.P. v. S.S., supra, the juvenile court found the child in that case dependent in late October 2006, and, after a dispositional hearing, it entered a June 2007 judgment awarding custody of the child to an aunt and uncle. The father appealed, arguing that the child was no longer dependent at the time the June 2007 dispositional judgment was entered. This court stated that, "when the evidence in the record supports a finding of dependency and when the trial court has made a disposition consistent with a finding of dependency, in the interest of judicial economy this court may hold that a finding of dependency is implicit in the trial court's judgment." J.P. v. S.S., 989 So.2d at 598. Given the evidence in that case, this court held that a finding that the child continued to be dependent was implicit in the judgment. Id.

In this case, the juvenile court found the child to be dependent at the time it entered the July 8, 2016, order. At the conclusion of the July 2016 hearing, it noted, among other things, that the mother had not resided long at her new apartment, that the mother had not yet completed her probationary period for a conviction for harassment, and that the mother had not yet completed crisis-management classes required as a condition of that probation. The juvenile court received additional evidence over the course of two days in December 2016. At the dispositional hearing, the mother presented evidence indicating that, among other things, she had completed the probationary period, she had completed the crisis-management classes, she remained living in the same apartment in which she had lived at the time of the July 2016 hearing, and she had a long-term lease for that apartment.

In its December 22, 2016, judgment, the juvenile court did not make any determination regarding whether the child remained dependent at the time it entered that judgment. This court has reviewed the evidence in the record on appeal. It is not clear from our review whether the child remained dependent when the December 22, 2016, dispositional judgment was entered, and, therefore, this court cannot, as we did in J.P. v. S.S., supra, interpret the juvenile court's December 22, 2016, judgment as containing an implicit dependency determination. We conclude that the juvenile court must make a determination regarding whether the child remained dependent at the time the December 22, 2016, judgment was entered. We reverse the December 22, 2016, judgment and remand the cause for the juvenile court, as expeditiously as possible, to enter a new judgment determining whether the child was dependent at the time it entered the December 22, 2016, judgment.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: THOMAS, Judge.

text:
    Chad HOWARD v. BIG M EXCAVATING, INC.
    2160519
    Court of Civil Appeals of Alabama.
    September 15, 2017
    E. Alen Dodd, Jr., and J. Eric Brisendine of Scruggs, Dodd & Brisendine, Attorneys, P.A., Fort Payne, for appellant.
    W. Patton Hahn and Samuel, C. Pierce of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Birmingham, for appellee
   THOMAS, Judge.

Chad Howard appeals a summary judgment entered in favor of one of several defendants, Big M Excavating, Inc. ("Big M"). Because the judgment is not final, we dismiss the appeal. The documents included in record on appeal indicate the following. In 2006 Howard purchased Lot 13 Autumn Ridge ("Lot 13") from Pinnacle Development Properties, Inc. ("Pinnacle Development"). The septic-tank system on Lot 13 eventually failed and could not be repaired. In 2009 Hometown Properties, LLC ("Hometown Properties"), and Wayne Foster purported to convey to Howard an additional property ("the SD lot") for Howard's use as a "sewer easement"; however, according to Howard, he later discovered that neither Hometown Properties nor Foster owned the SD lot. It appears that the parcel that included the SD lot had, instead, been owned by Hometown Residential Properties, Inc. ("Hometown Residential"), subject to a mortgage in favor of West Alabama Bank & Trust ("the bank").

Regardless, certain sewer lines that terminated on the SD lot were connected to the waste-disposal system on Lot 13. In February 2010 the bank foreclosed on Hometown Residential's mortgage and purchased the parcel that contained the SD lot at the foreclosure sale. Big M purchased the parcel that contained the SD lot from the bank. In 2012 Big M cut the sewer lines leading from Lot 13 to the SD lot.

In March 2013 Howard commenced an action in the Tuscaloosa Circuit Court against Foster, Hometown Properties, Hometown Residential, Pinnacle Development, and fictitiously named defendants A-F. In April 2013 Pinnacle Development filed a motion to dismiss all claims against it, which the circuit court granted. In May 2013 Foster, Hometown Properties, and Hometown Residential filed an answer and a motion to dismiss pursuant to Rule 12(b), Ala. R. Civ. P. Although no such order appears in the record, the State Judicial Information System case-action-summary sheet contains the following entry: "6/25/2013 ... ORDER DENYING MOTION TO DISMISS AND CANCELLING HEARING." (Capitalization in original.)

In December 2013 Howard filed a motion seeking to add Big M as a defendant, which the circuit court granted. Foster filed a suggestion of bankruptcy, and the circuit court placed the action on its administrative docket for a period. In March 2015 Howard filed a motion seeking to return the action to the circuit court's active docket. Foster filed a motion to dismiss all claims against him, which reads, in its entirety:

"COMES NOW the undersigned attorney for Defendant Wayne Foster and hereby files this Motion to Dismiss any and all claims against Defendant Wayne Foster pursuant to the attached Chapter 7 Discharge Order.
"Further, the undersigned [attorney] moves the Court to allow him to withdraw as counsel for Hometown Properties, LLC[,] and Hometown Residential Properties, Inc., as these entities have no assets, are no longer doing business, and counsel has not been retained in this matter by said entities."

Before the circuit court entered an order granting Foster's motion to dismiss on March 26, 2015, Howard filed an amended complaint in which he alleged, in pertinent part, that "the defendants" were liable for damages for negligence and wantonness and that Big M, specifically, was liable for damages for trespass. The circuit court entered an order dismissing Foster from the action. That order reads, in pertinent part: "All other claims remain pending." Thus, Howard's claims against Hometown Properties, Hometown Residential, Big M, and fictitiously named defendants A-F remained pending.

Big M filed a motion for a summary judgment, a brief in support, and certain deeds as exhibits. Howard filed his own affidavit in response. The circuit court entered a summary judgment in favor of Big M, which reads, in pertinent part: "Summary Judgment is entered in favor of Defendant Big M Excavating, Inc.[,] on all claims asserted by [Howard] against said Defendant." The circuit court did not certify the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P.

Howard filed a motion to reconsider, which the circuit court denied. On May 10, 2016, Howard filed a notice of appeal to the Alabama Supreme Court. The appeal was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala. Code 1975.

Although the parties do not raise any argument regarding this court's jurisdiction to consider the appeal, "jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu." Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987). See also Ex parte Smith, 438 So.2d 766, 768 (Ala. 1983) ("Lack of subject matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu.").

" 'With some exceptions not applicable here, an appeal lies only from a final judgment. Ex parte Green, 58 So.3d 135, 144 (Ala. 2010) ; see also Bean v. Craig, 557 So.2d 1249, 1253 (Ala. 1990) ; § 12-22-2, Ala. Code 1975. "The general rule is that a trial court's order is not final [for purposes of appeal] unless it disposes of all claims as to all parties." Dickerson v. Alabama State Univ., 852 So.2d 704, 705 (Ala. 2002).'
" First Commercial Bank of Huntsville v. Nowlin, 122 So.3d 829, 831 (Ala. 2013) (footnote omitted)."

Johnson v. Reddoch, 198 So.3d 497, 503 (Ala. 2015).

The circuit court has not disposed of Howard's claims against Hometown Properties or Hometown Residential; thus, the judgment from which Howard has appealed is nonfinal. "An appeal will not lie from an order or judgment which is nonfinal." Robinson v. Computer Servicenters, Inc., 360 So.2d 299, 302 (Ala. 1978). Therefore, we dismiss the appeal as having been taken from a nonfinal judgment.

APPEAL DISMISSED.

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


author: WELCH, Judge.

text:
    Douglas Alfred GREEN v. STATE of Alabama
    CR-15-0579
    Court of Criminal Appeals of Alabama.
    October 21, 2016
    Lisa Bumpers Deen, Mobile, for appellant.
    Luther Strange, atty. gen., and Madeline H. Lewis, asst. atty. gen., for appellee.
   WELCH, Judge.

On January 13, 2016, Douglas Alfred Green entered blind pleas to the following charged offenses: two counts of first-degree theft of property (CC-15-4527 and CC-15-4531), see § 13A-8-3, Ala. Code 1975; fraudulent use of a credit card (CC-15-4528), see § 13A-9-14, Ala. Code 1975; first-degree receiving stolen property (CC-15-4529 and CC-15-4530), see § 13A-8-17, Ala. Code 1975; and third-degree burglary (CC-15-5200), see § 13A-7-7, Ala. Code 1975. On January 13, 2016, Green was sentenced to 99 years' imprisonment for each conviction. The six sentences were ordered to be served concurrently with each other and consecutively with another sentence for which probation had been revoked. Restitution was ordered in the amount of $2,461.49. Green appeals.

Facts

On December 15, 2015, Green and his counsel initially appeared before the Honorable Jay A. York for a probation-revocation hearing and to enter blind guilty pleas to the six convictions Green now appeals. Near the conclusion of the plea colloquy, Judge York realized that he had a conflict of interest regarding two of the charges against Green. Judge York had the six cases immediately transferred to the Honorable Charles Graddick.

On December 16, 2015, Green and his counsel appeared before Judge Graddick. Judge Graddick essentially stated that because of the large number of charges against Green that required the court's review and the fact that Green had been in the Metro Jail for 16 months, and because it appeared that Green had a substance-abuse problem, the court would release Green from the Metro Jail and send him immediately to the PASCO Home, an in patient drug-treatment center. However, Judge Graddick was very clear that the case would resume on January 13, 2016, and the court indicated that at that time a disposition would be reached and the appropriate sentences imposed. Judge Graddick specifically stated at that time that no presentence report was needed because the court was aware of Green's extensive criminal record. On January 13, 2016, Judge Graddick adjudicated Green guilty of the charged offenses and imposed sentences.

I.

Green contends that his sentences were imposed without allowing him the opportunity to speak on his own behalf, i.e., without an allocution. The record supports this contention, and the State concedes that this case must be remanded for resentencing "so that Green will be allowed to address the trial court before his sentence is pronounced." (State's brief, at p. 6.)

"This Court has previously held ... that 'the requirement that the defendant be afforded the opportunity to speak on his or her behalf at the sentencing hearing [is an] exception[ ] to the general preservation rule and [is] required to afford a defendant the minimal due process.' Banks v. State, 51 So.3d 386, 392 (Ala. Crim. App. 2010)....
" 'Rule 26.9(b)(1), Ala. R. Crim. P., provides that, in pronouncing the sentence, the circuit court must "[a]fford the defendant an opportunity to make a statement in his or her own behalf before imposing sentence." In Banks, 51 So.3d at 393, this Court noted:
" ' "[R]egarding the requirement of an allocution, Ex parte Anderson, 434 So.2d 737 (Ala. 1983), and the cases following it hold that when the lack of an allocution or the waiver of allocution is raised on direct appeal remand is required because a sentence without an allocution is erroneous. See Davis v. State, 747 So.2d 921, 925 (Ala. Crim. App. 1999) ; Newton v. State, 673 So.2d 799, 800-01 (Ala. Crim. App. 1995) ; Burks v. State, 600 So.2d 374, 382-83 (Ala. Crim. App. 1991) ; Duncan v. State, 587 So.2d 1260, 1264 (Ala. Crim. App. 1991) ; Cline v. State, 571 So.2d 368, 372 (Ala. Crim. App. 1990) ; Maul v. State, 531 So.2d 35, 36 (Ala. Crim. App. 1988). See also Ebens v. State, 518 So.2d 1264, 1269 (Ala. Crim. App. 1986) ; Oliver v. State, 25 Ala.App. 34, 34, 140 So. 180, 181 (1932) (wherein the court noted that 'to constitute a valid judgement[, the fact that the defendant was asked if he had anything to say why the sentence of law should not be pronounced upon him] must appear in the minute entry of the judgment'). We note that in Shaw v. State, [949 So.2d 184 (Ala. Crim. App. 2006) ], this Court recognized and reiterated that on direct appeal, when the issue of the lack of an allocution or a waiver of an allocution is raised, the case is to be remanded. 949 So.2d at 187. Rule 26.9(b)(1)[, Ala. R. Crim. P.,] also provides that in pronouncing the sentence, the trial judge must '[a]fford the defendant an opportunity to make a statement in his or her own behalf before imposing sentence.' The Committee Comments following Rule 26 state that a defendant is entitled to allocution, regardless of the gravity of the sentence imposed. See Rule 26.9, Ala. R. Crim. P., Committee Comments." '
" Thompson v. State, 92 So.3d 801, 805 (Ala. Crim. App. 2011)."

Green v. State, 200 So. 3d 677, 678-79 (Ala. Crim. App. 2015).

Therefore, this case must be remanded for resentencing.

II.

Green contends that the trial court erred in denying his motions to withdraw his guilty pleas because his guilty pleas were based on a material misrepresentation by his trial counsel.

Review of this claim is unnecessary because this case is being remanded for a new sentencing proceeding. "[A] new sentencing hearing revives the underlying criminal matter" allowing Green's counsel or Green to file a new motion to withdraw his guilty plea should he desire. Ex parte Walker, 152 So.3d 1247, 1250 (Ala. 2014) ("The Rule 32 court's grant of a new sentencing hearing revives the underlying criminal matter, authorizing the trial court to conduct a sentencing hearing, independent of the Rule 32 action, and to resentence the defendant, if appropriate.").

Conclusion

As stated in Part I of this opinion, Green was not afforded an opportunity to make a statement in his own behalf before the circuit court sentenced him. Thus, Green's sentence must be reversed and the case remanded to the circuit court for a new sentencing proceeding. "On remand the circuit court shall conduct a sentencing hearing in which a proper allocution is provided pursuant to Rule 26.9(b), Ala. R. Crim. P." Green v. State, 200 So. 3d at 679. The circuit court is directed to make a return to this Court showing compliance with these instructions within 56 days from the date of this opinion. The return to remand shall include a transcript of the sentencing hearing and copies of documents, if any, relied upon by the circuit court in imposing Green's sentence.

AFFIRMED AS TO CONVICTIONS; REVERSED AS TO SENTENCING;

AND REMANDED WITH INSTRUCTIONS.

Windom, P.J., and Burke and Joiner, JJ., concur. Kellum, J., not sitting.

      On January 19, 2016, counsel for Green, Scott Hawk, filed a lengthy motion to reconsider and to set aside the sentencing order. This motion was denied on January 21, 2016. On January 25, 2016, Green filed a pro se motion to withdraw his guilty pleas. This motion was denied on February 4, 2016. On February 5, 2016, counsel for Green filed a 10-page motion to withdraw the guilty pleas. On February 12, 2016, the circuit court summarily denied counsel's motion to withdraw the guilty pleas. On February 10, 2016, Green filed his second pro se motion to withdraw his guilty pleas. In this motion, Green contended that his guilty pleas were not entered voluntarily but were the result of ineffective assistance of counsel. He asserted that counsel was ineffective for the following reasons: 1) counsel advised Green to enter guilty pleas but did not inform him of the difference between a negotiated plea and a blind plea; 2) counsel did not inform Green that he had a right to a sentencing hearing and a pre-sentence investigation report; 3) counsel knew that Green believed he would be sentenced to a halfway house if he pleaded guilty but did nothing to correct this false belief; Green asserts that he would not have entered guilty pleas if he had known he would not be sentenced to the halfway house. This motion was summarily denied on February 16, 2016.
      On February 29, 2016, Hawk filed a motion to withdraw as counsel, citing Green's allegation of ineffective assistance of counsel as a ground for withdrawal. The motion to withdraw was granted on March 1, 2016.

      This Court agrees with the State's assertion on appeal that this claim was not raised below. Green, in his second pro se motion to withdraw his guilty pleas, asserted that his counsel had failed to inform him of certain information and had failed to correct Green's mistaken belief regarding sentencing, but Green did not allege that counsel presented any material misrepresentations regarding Green's guilty pleas.

      Other assertions contained in part II of Green's appellate brief do not appear to be independent issues for appellate review. However, to any extent that these assertions were meant to be independent issues, they do not satisfy Rule 28(a)(10), Ala. R. App. P.

      Note from the reporter of decisions: On September 1, 2017, on return to remand, the Court of Criminal Appeals affirmed without opinion.


text:
    FLORIDA BOARD OF BAR EXAMINERS RE: B.A.B.
    CASE NO.: SC18-472
    Supreme Court of Florida.
    APRIL 4, 2018
    Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board's recommendation is approved by the Court and B.A.B. shall be admitted to The Florida Bar subject to the following conditions:
    1. The applicant's license to practice law shall be placed on probation for a period of three years.
   2. During the period of probation, the applicant shall:

(a) abstain from the consumption of alcoholic beverages;

(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc.;

(c) participate actively in the program offered by Florida Lawyers Assistance, Inc. during the entire probationary period by complying with the rehabilitation contract with that organization executed on November 25, 2013, and by extending the contract to cover the entire period of probation if necessary;

(d) participate actively in Alcoholics/Narcotics Anonymous by attending, at least, weekly meetings or such greater frequency as required by Florida Lawyers Assistance, Inc.; practice AA/NA principles in all of his affairs and carry the AA/NA message to other individuals with a substance use disorder;

(e) attend attorney support meetings at least monthly, or at such greater frequency as required by Florida Lawyers Assistance, Inc,;

(f) submit to and pay for a minimum of eight (8) random urine/drug alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by Florida Lawyers Assistance, Inc.; and

(g) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2 (a), (b), (c), (d), (e), and (f) above.

3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule 1-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.

4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate his license.

5. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the applicant's practice of law.

6. If the applicant's license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

7. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court's order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.

8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. By executing this Agreement, the applicant acknowledges that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 7 or 8 above, the applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.

10. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant's file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.

A True Copy

Test:

John A. Tomasino

Clerk, Supreme Court


text:
    FLORIDA BOARD OF BAR EXAMINERS RE: L.C.M.
    CASE NO.: SC18-484
    Supreme Court of Florida.
    APRIL 4, 2018
    Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board's recommendation is approved by the Court and L.C.M. shall be admitted to The Florida Bar subject to the following conditions:
    1. The applicant's license to practice law shall be placed on probation for a period of two years.
   2. During the period of probation, the applicant shall:

(a) abstain from the consumption of alcoholic beverages;

(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc.;

(c) participate actively in the program offered by Florida Lawyers Assistance, Inc. during the entire probationary period by complying with the rehabilitation contract with that organization executed on February 14, 2018, and by extending the contract to cover the entire period of probation if necessary;

(d) participate actively in Alcoholics/Narcotics Anonymous by attending, at least, weekly meetings or such greater frequency as required by Florida Lawyers Assistance, Inc.; practice AA/NA principles in all of her affairs and carry the AA/NA message to other individuals with a substance use disorder;

(e) attend attorney support meetings at least monthly, or at such greater frequency as required by Florida Lawyers Assistance, Inc.;

(f) submit to and pay for a minimum of eight random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by Florida Lawyers Assistance, Inc.; and

(g) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2 (a), (b), (c), (d), (e), and (f) above.

3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule 1-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.

4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate her license.

5. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the applicant's practice of law.

6. If the applicant's license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

7. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court's order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.

8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. By executing this Agreement, the applicant acknowledges that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 7 or 8 above, the applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.

10. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant's file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.

A True Copy

Test:

John A. Tomasino

Clerk, Supreme Court


author: PER CURIAM. QUINCE, J., dissenting.

text:
    Michael Anthony TANZI, Appellant, v. STATE of Florida, Appellee.
    No. SC17-1640
    Supreme Court of Florida.
    [April 5, 2018]
    Neal Dupree, Capital Collateral Regional Counsel, Scott Gavin, Staff Attorney, and Paul Kalil, Assistant Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Scott A. Browne, Senior Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

Michael A. Tanzi appeals an order denying a motion to vacate judgments of conviction, including one of first-degree murder, and a sentence of death under Florida Rule of Criminal Procedure 3.851.

The underlying facts of this case were described in this Court's opinion on direct appeal.

Tanzi v. State , 964 So.2d 106, 110-12 (Fla. 2007). Tanzi pled guilty to the first-degree murder of Janet Acosta. Id. at 111. He carjacked, kidnapped, beat, sexually battered, robbed, and strangled Ms. Acosta. Id. at 110-11. Following a unanimous jury recommendation for death, the trial court sentenced Tanzi to death for Ms. Acosta's murder. Id. at 111. The trial court found seven aggravating factors and ten mitigating circumstances. We affirmed Tanzi's convictions and sentence of death. Id. at 121. We also affirmed the denial of Tanzi's initial postconviction motion and denied relief on his habeas petition. Tanzi v. State , 94 So.3d 482, 497 (Fla. 2012).

In this successive postconviction motion, Tanzi argues that he is entitled to relief pursuant to Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). We agree with Tanzi that Hurst is applicable in his case. See Mosley v. State , 209 So.3d 1248 (Fla. 2016). However, because we find that the Hurst error in this case is harmless beyond a reasonable doubt, we affirm the denial of postconviction relief. As we stated in Davis v. State , 207 So.3d 142, 175 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2218, 198 L.Ed.2d 663 (2017) :

[T]he jury unanimously found all of the necessary facts for the imposition of death sentences by virtue of its unanimous recommendations. .... The unanimous recommendations here are precisely what we determined in Hurst to be constitutionally necessary to impose a sentence of death.

We reject Tanzi's assertion that the Hurst error was not harmless because the jury was not given a mercy instruction. See Knight v. State , 225 So.3d 661, 683 (Fla. 2017), cert. denied , No. 17-7099, --- U.S. ----, 138 S.Ct. 1285, 200 L.Ed.3d 477, 2018 WL 1369193 (U.S. Mar. 19, 2018).

Additionally, we reject Tanzi's Hurst -induced Caldwell claim. See Reynolds v. State , No. SC17-793, slip op. at 26-36 (Fla. Apr. 5, 2018).

Accordingly, the Hurst violation in this case is harmless beyond a reasonable doubt and, as in Davis , does not entitle Tanzi to relief. Thus, we affirm the denial of postconviction relief.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and LAWSON, JJ., concur.

CANADY and POLSTON, JJ., concur in result.

QUINCE, J., dissents with an opinion.

QUINCE, J., dissenting.

I cannot agree with the majority's finding that the Hurst error was harmless beyond a reasonable doubt. As I have stated previously, "[b]ecause Hurst requires 'a jury, not a judge, to find each fact necessary to impose a sentence of death,' the error cannot be harmless where such a factual determination was not made." Hall v. State , 212 So.3d 1001, 1036-37 (Fla. 2017) (Quince, J., concurring in part and dissenting in part) (citation omitted) (quoting Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 619, 193 L.Ed.2d 504 (2016) ); see also Truehill v. State , 211 So.3d 930, 961 (Fla.) (Quince, J., concurring in part and dissenting in part), cert. denied , --- U.S. ----, 138 S.Ct. 3, 199 L.Ed.2d 272 (2017). The jury did not make the specific factual findings that Hurst requires a jury to find in order to impose some of the most serious aggravators at issue in this case. Therefore, I dissent.

      We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

      The trial court found the following aggravating factors: (1) that the murder was committed by a person previously convicted of a felony and under sentence of imprisonment or on felony probation; (2) that the murder was committed during the commission of a kidnapping; (3) that the murder was committed during the commission of two sexual batteries; (4) that the crime was committed for the purpose of avoiding arrest; (5) that the murder was committed for pecuniary gain; (6) that the murder was especially heinous, atrocious, or cruel (HAC); and (7) that the murder was committed in a cold, calculated, and premeditated (CCP) manner. Tanzi , 964 So.2d at 111 n.1. "The court gave each aggravator 'great weight' except the HAC aggravator, which the court gave 'utmost weight.' " Id.

      The court found the following mitigating circumstances: (1) that Tanzi suffered from "axis two" personality disorders; (2) that he was institutionalized as a youth; (3) that his behavior benefited from psychotropic drugs; (4) that he lost his father at an early age; (5) that he was sexually abused as a child; (6) that he twice attempted to join the military; (7) that he cooperated with law enforcement; (8) that he assisted inmates by writing letters and that he enjoys reading; (9) that his family has a loving relationship for him; and (10) that he had a history of substance abuse. Tanzi , 964 So.2d at 111 n.1.

      Caldwell v. Mississippi , 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).

      We also reject Tanzi's claim that the change in law following Hurst and Perry v. State , 210 So.3d 630 (Fla. 2016), entitles him to have his previously denied postconviction claims revisited.


author: PER CURIAM. LAWSON, J., dissenting.

text:
    STATE of Florida, Appellant, v. Joseph P. SMITH, Appellee.
    No. SC17-1542
    Supreme Court of Florida.
    [April 5, 2018]
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Christina Z. Pacheco, Assistant Attorney General, Tampa, Florida, for Appellant
    James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Ann Marie Mirialakis and Ali A. Shakoor, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellee
   PER CURIAM.

This case is before the Court on appeal from an order granting a successive motion to vacate a sentence of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of death, we have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

FACTS AND BACKGROUND

This Court has previously detailed the gruesome facts of this case. Smith v. State (Smith I ), 28 So.3d 838, 844-53 (Fla. 2009). Relevant to the instant proceeding, Joseph Smith was convicted of first-degree murder, kidnapping, and capital sexual battery of eleven-year-old Carlie Jane Brucia and was sentenced to death. Id. at 844. After a penalty phase, the jury recommended a death sentence by a vote of ten to two. Id. at 851. On direct appeal, we held that the trial court's finding of the CCP aggravator was not supported by competent, substantial evidence and thus the CCP aggravator was stricken. Id. at 868. Nevertheless, we ultimately affirmed Smith's convictions and sentence. Id. at 878. The United States Supreme Court denied certiorari review on June 28, 2011. Smith v. Florida , 564 U.S. 1052, 131 S.Ct. 3087, 180 L.Ed.2d 912 (2011).

Smith subsequently filed a motion for postconviction relief raising numerous challenges, including a Ring challenge, which the postconviction court summarily denied. Smith v. State (Smith II ), 151 So.3d 1177, 1181 (Fla. 2014). Smith appealed to this Court, and we affirmed the denial of postconviction relief. Id. at 1184. Next, Smith filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Florida, which was stayed as of July 15, 2016.

On January 5, 2017, after the issuance of Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), Hurst v. State , 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017), and its progeny, Smith filed this Successive Motion to Vacate Death Sentence, which the postconviction court granted with regard to the claim that Smith is entitled to a new penalty phase. The State's appeal followed. On September 19, 2017, this Court issued an order to show cause why the lower court's order should not be affirmed based on this Court's precedent in Hurst , Davis v. State , 207 So.3d 142 (Fla. 2016), and Mosley v. State , 209 So.3d 1248 (Fla. 2016), to which the parties responded.

ANALYSIS

Smith contends that he is entitled to relief pursuant to the United States Supreme Court's opinion in Hurst v. Florida , which held that Florida's capital sentencing scheme was unconstitutional because "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury's mere recommendation is not enough." 136 S.Ct. at 619. On remand, this Court held that a unanimous jury recommendation for death is required before the trial court may impose a sentence of death. Hurst , 202 So.3d at 54. Moreover, this Court held that "in addition to unanimously finding the existence of any aggravating factor, the jury must also unanimously find that the aggravating factors are sufficient for the imposition of death and unanimously find that the aggravating factors outweigh the mitigation before a sentence of death may be considered by the judge." Id. We also determined that Hurst error is capable of harmless error review. Id. at 67.

Hurst applies retroactively to defendants whose sentences became final after the United States Supreme Court issued its decision in Ring . Mosley , 209 So.3d at 1283. Thus, Hurst applies retroactively to this case, which became final in 2011.

Accordingly, we must determine whether the Hurst error during Smith's penalty phase proceeding was harmless beyond a reasonable doubt. "[I]n the context of a Hurst v. Florida error, the burden is on the State, as the beneficiary of the error, to prove beyond a reasonable doubt that the jury's failure to unanimously find all the facts necessary for imposition of the death penalty did not contribute to [the] death sentence ...." Hurst , 202 So.3d at 68. As applied to the right to a jury trial with regard to the facts necessary to impose the death penalty, it must be clear beyond a reasonable doubt that a rational jury would have unanimously found that each aggravating factor was proven beyond a reasonable doubt, that the aggravating factors were sufficient to impose death, and that the aggravating factors outweighed the mitigating circumstances.

We conclude that the State cannot establish that the error in Smith's case was harmless beyond a reasonable doubt. In Smith's case, the jury did not make the requisite factual findings and did not unanimously recommend a sentence of death. Instead, the jury recommended the sentence of death by a vote of ten to two. Therefore, this Court has no way of knowing if the jury unanimously found any of the five valid aggravating factors-(1) Smith committed the felony while he was on probation; (2) the murder was committed while Smith was engaged in the commission of a sexual battery or kidnapping; (3) the murder was committed for the purpose of avoiding lawful arrest; (4) HAC; and (5) the victim was under twelve years of age-that the aggravating factors were sufficient to impose a death sentence, or whether the aggravating factors outweighed the mitigating circumstances. Further, this Court cannot speculate why the two jurors who voted to recommend a sentence of life imprisonment determined that a sentence of death was not the appropriate punishment. Thus, in line with our post- Hurst precedent, we conclude that the Hurst error in Smith's case was not harmless beyond a reasonable doubt. Accordingly, we vacate Smith's sentence of death and remand for a new penalty phase.

CONCLUSION

Therefore, we affirm the postconviction court's order granting Smith a new penalty phase.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.

CANADY and POLSTON, JJ., dissent.

LAWSON, J., dissents with an opinion.

LAWSON, J., dissenting.

See Pagan v. State , 235 So.3d 317, 319-20 (Fla. 2018) (Lawson, J., dissenting).

      As we stated in Smith I ,
      The trial court determined that the State had proven beyond a reasonable doubt the existence of six statutory aggravators: (1) Smith committed the felony while he was on probation, see § 921.141(5)(a), Fla. Stat. (2003) (moderate weight); (2) the murder was committed while Smith was engaged in the commission of a sexual battery or kidnapping, see § 921.141(5)(d), Fla. Stat. (2003) (significant weight); (3) the murder was committed for the purpose of avoiding lawful arrest, see § 921.141(5)(e), Fla. Stat. (2003) (great weight); (4) the murder was especially heinous, atrocious or cruel (HAC), see § 921.141(5)(h), Fla. Stat. (2003) (great weight); (5) the murder was cold, calculated, and premeditated (CCP), see § 921.141(5)(i), Fla. Stat. (2003) (great weight); and (6) the victim was under twelve years of age, see § 921.141(5)(l), Fla. Stat. (2003) (great weight).
      The trial court concluded that Smith had failed to prove the existence of any statutory mitigating circumstances. The trial court found a total of thirteen non-statutory mitigating circumstances: (1) a long and well-documented history of mental illness (moderate weight); (2) a long and well-documented history of drug abuse (moderate weight); (3) longstanding severe pain from back injuries that contributed to his addiction (little weight); (4) Smith repeatedly sought help for his problems (little weight); (5) Smith was repeatedly denied treatment or received inadequate treatment (little weight); (6) positive qualities, including-(a) skills as a mechanic, plumber, and carpenter; (b) performance of kind deeds for others; (c) love and support with his family; (d) despite his incarceration, attempts to exert a positive influence on family members; (e) artistic skills; and (f) he cares about animals (moderate weight); (7) providing information that led to the resolution of this case (very little weight); (8) his family assisted law enforcement with Smith's knowledge and cooperation (slight weight); (9) demonstration of spiritual growth (moderate weight); (10) maintenance of gainful employment (slight weight); (11) he is a loving father to his three daughters (moderate weight); (12) remorse (little weight); and (13) he is amenable to rehabilitation and a productive life in prison (little weight).
      28 So.3d at 852-53 (footnotes omitted).

      Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

      E.g. , Mosley , 209 So.3d 1248 (granting Hurst relief for nonunanimous jury recommendation, post-Ring defendant); Peterson v. State , 221 So.3d 571 (Fla. 2017) (same); Bevel v. State , 221 So.3d 1168 (Fla. 2017) (same); Snelgrove v. State , 217 So.3d 992 (Fla. 2017) (same); Newberry v. State , 214 So.3d 562 (Fla. 2017) (same); Orme v. State , 214 So.3d 1269 (Fla. 2017) (same); Baker v. State , 214 So.3d 530 (Fla. 2017) (same); Deviney v. State , 213 So.3d 794 (Fla. 2017) (same); Jackson v. State , 213 So.3d 754 (Fla. 2017) (same); Smith v. State , 213 So.3d 722 (Fla. 2017) (same); Hodges v. State , 213 So.3d 863 (Fla. 2017) (same); Anderson v. State , 220 So.3d 1133 (Fla. 2017) (same); Ault v. State , 213 So.3d 670 (Fla. 2017) (same); Dubose v. State , 210 So.3d 641 (Fla. 2017) (same); Hojan v. State , 212 So.3d 982 (Fla. 2017) (same); Durousseau v. State , 218 So.3d 405 (Fla. 2017) (same); Calloway v. State , 210 So.3d 1160 (Fla. 2017) (same); McGirth v. State , 209 So.3d 1146 (Fla. 2017) (same); Williams v. State , 209 So.3d 543 (Fla.) (same), cert. denied , --- U.S. ----, 137 S.Ct. 2302, 198 L.Ed.2d 734 (2017) ; Armstrong v. State , 211 So.3d 864 (Fla. 2017) (same); Kopsho v. State , 209 So.3d 568 (Fla. 2017) (same).