text:
    John Brent SMITH v. Cynthia Dawn SMITH and SouthTrust Bank.
    2020171.
    Court of Civil Appeals of Alabama.
    May 23, 2003.

      Richard Rudolph Klemm of Klemm & Gourley, P.C., Dothan, for appellant.
    Deborah S. Seagle of Smith & Seagle, Dothan, for appellee Cynthia Dawn Smith.
    Virginia Lynn Mclnnes of Farmer, Farmer, Malone & Sherrer, P.A., Dothan, for appellee SouthTrust Bank.
   THOMPSON, Judge.

On April 18, 2002, John Brent Smith (“the husband”) sued Cynthia Dawn Smith (“the wife”) and SouthTrust Bank (“South-Trust”) alleging conversion, breach of contract, negligence, wantonness, and fraud. The husband alleged that SouthTrust had allowed the wife to remove funds from his home-equity line of credit without his authorization or knowledge. On May 21, 2002, the wife filed a motion to dismiss, alleging that the husband’s claims had been previously resolved by a settlement agreement incorporated into their November 2000 divorce judgment. SouthTrust joined the wife’s motion to dismiss and pleaded the affirmative defenses of res judicata, collateral estoppel, release, waiver, and accord and satisfaction. On October 4, 2002, the trial court entered the following notation on the case action summary: “Deft’s SouthTrust Bank, Inc. and [the wife’s] motion to dismiss is hereby granted.” The husband appealed. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

The trial court’s case action summary indicates that a “motion hearing” was set for October 4, 2002; however, the transcript from that hearing was not made a part of the record on appeal. The following facts are taken from the pleadings of the parties. From May 23, 1992, until December 14, 2000, the husband and the wife were married. It is undisputed that, during their divorce proceedings, the husband and the wife signed a settlement agreement that was incorporated into the Houston Circuit Court’s divorce judgment. The section of that judgment entitled “marital debts” stated:

“[The wife] shall pay that debt outstanding on the SouthTrust Visa card in her name, that debt to Army Aviation Federal Credit Union which was secured by the Certificate of Deposit in the name of [the husband], and $6,000 to [the husband] which was transferred from the parties’ accounts. [The wife] shall reimburse [the husband] for any payments he may be required to make on said loan or losses he may incur as a result thereof. [The husband] shall be granted a lien for said monies due and owing, at the time of payment, from [the wife] on those proceeds payable to her from her automobile accident on or about December 10,1999.”

In the present action, filed in the circuit court of Henry County, the husband alleges that, on June 22, 1999, while he was married to the wife, he entered into a contract with SouthTrust for a home-equity line of credit in the amount of $50,000. According to the husband, the wife was not a comaker, signatory, surety, or guarantor on that indebtedness and, therefore, he claims, she did not have any right to withdraw funds from the account. The husband alleged that the wife withdrew over $13,000 in four transactions over a period of four months during the marriage. The husband stated that the withdrawals were unauthorized and without his knowledge.

The husband sued SouthTrust alleging that the wife’s four withdrawals were a breach of the Uniform Commercial Code, Title 7, Ala.Code 1975 (“the UCC”). The husband alleged that, if SouthTrust had used good faith and ordinary care, the wife would not have been able to withdraw the money from an account over which she had no rights; the husband also alleged that SouthTrust was negligent and wanton in permitting the unauthorized withdrawals.

The wife’s motion to dismiss claimed that the debts the husband referred to in his complaint occurred while the parties were married and were addressed in the settlement agreement incorporated into the divorce judgment. The wife alleged that the debts she owed to the husband were to be payed from the proceeds of a separate legal action. The wife also stated that any further litigation involving her debts to the husband should be brought in the Houston Circuit Court because it has jurisdiction over their divorce judgment. In support of her motion to dismiss, the wife attached a copy of the settlement agreement and the divorce judgment.

The husband filed a response to the wife’s motion to dismiss, stating that the mention of “disputed debts” in the settlement agreement “may or may not have included” the debts from the parties’ marriage. However, the husband alleged that the wife’s withdrawals from the “home equity line of credit account” were not mentioned in the settlement agreement. The husband also alleged that the $6,000 that was transferred from the parties’ accounts and was referred to in the settlement agreement was not the same debt as the $13,470.30 removed from the home-equity line of credit.

In his brief on appeal, the husband focuses primarily on his claims against SouthTrust. However, he does argue that the trial court erred in granting the wife’s motion to dismiss for failure to state a claim on which relief could be granted. His argument with regard to this issue on appeal, however, is a one-page recitation of the facts citing no case-law or statutory authority in support of his contention. It is not the function of this court to create legal arguments or perform legal research for an appellant. Carr v. Howard, 777 So.2d 738 (Ala.Civ.App.2000) (citing McLemore v. Fleming, 604 So.2d 353 (Ala.1992)). Therefore, we affirm the trial court’s granting of the wife’s motion to dismiss.

The husband asserts that the trial court also erred in granting SouthTrust’s motion to dismiss for failure to state a claim upon which relief could be granted. The applicable standard of review for a Rule 12(b)(6), Ala. R. Civ. P., dismissal is set forth in Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993):

“On appeal, a dismissal is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would enti-tie her to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).”

(Emphasis added.)

According to Rule 8(a), Ala. R. Civ. P., a claim for relief must contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which the pleader deems himself entitled. To comply with that rule, the claim for relief must give the opposing party fair notice of the pleader’s claim and the grounds upon which that claim rests. Christy v. Smith Mountain, Inc., 855 So.2d 1103 (Ala.Civ.App.2003)(citing Mitchell v. Mitchell, 506 So.2d 1009 (Ala.Civ.App.1987)).

The husband sued SouthTrust alleging a breach of contractual duties found in the UCC. The husband also sued SouthTrust based on its alleged negligence and wantonness in allowing the wife to withdraw $13,470.30 from his home-equity line of credit without the proper authorization. Additionally, the husband demanded $13,470.30 plus interest that he claimed SouthTrust owed him.

We cannot say that the husband’s complaint as it relates to SouthTrust failed to state a claim upon which relief could be granted. While this court will not consider whether the husband will ultimately prevail, we find that he has stated a claim on which he might prevail. See Nance v. Matthews, supra (citing Fontenot v. Bramlett, 470 So.2d 669 (Ala.1985)). Viewing the evidence in the light most favorable to the husband, it appears that he has set forth facts that might entitle him to relief. See Nance v. Matthews, supra (citing Garrett v. Hadden, 495 So.2d 616 (Ala.1986)). Therefore, given the evidence in the record and the applicable standard of review, SouthTrust’s motion to dismiss for failure to state a claim is reversed, and the cause is remanded to the trial court for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

YATES, P.J., and CRAWLEY and PITTMAN, JJ., concur.

MURDOCK, J., concurs in part and dissents in part.

MURDOCK, Judge,

concurring in part and dissenting in part.

I concur in that portion of the main opinion reversing the trial court’s dismissal of the husband’s claims against South-Trust; I respectfully dissent as to that portion of the main opinion affirming the trial court’s dismissal of the husband’s claims against the wife.

The main opinion analyzes the dismissal of the husband’s claims against SouthTrust as a dismissal under Rule 12(b)(6), Ala. R. Civ. P., for failure to state a claim upon which relief could be granted. I agree with this analysis insofar as it goes.

I find it important, however, for the proper disposition of both the husband’s appeal as to his claims against SouthTrust and the husband’s appeal as to his claims against the wife, to note that SouthTrust’s “motion to dismiss” that was granted by the trial court was not based solely on Rule 12(b)(6). Rather, as discussed by the husband in his brief on appeal, the bulk of SouthTrust’s motion is devoted to assertions that a series of affirmative defenses justify the dismissal of the husband’s complaint. Those affirmative defenses include a paragraph in which SouthTrust “joins in the motion to dismiss heretofore filed by the [wife] and adopts the request for relief contained therein and the grounds offered in support thereof.” The grounds offered in the wife’s motion were solely in the nature of affirmative defenses. In addition, SouthTrust’s motion expressly asserts the affirmative defenses of res judicata, collateral estoppel, release, waiver, and accord and satisfaction. Significantly, the record contains no indication of which of the grounds in SouthTrust’s motion to dismiss served as the basis for the trial court’s decision to grant that motion. The record contains only a brief entry on the case action summary sheet: “Upon [hearing] Deft’s SouthTrust Bank Inc. and Cynthia Dawn Smith’s Motion to Dismiss is Hereby Granted.”

Included in the statement of the standard of review in the husband’s brief, are, among other things, descriptions of the appellate standard of review both for a dismissal of a complaint pursuant to Rule 12(b)(6) and for a summary judgment. No doubt because SouthTrust’s motion to dismiss was based primarily upon affirmative defenses requiring consideration of matters outside the pleadings and because the wife’s “motion to dismiss” was based exclusively on matters outside the pleadings, the husband quoted the following passage from American Trust Corp. v. Champion, 793 So.2d 811, 813 (Ala.Civ.App.2001), in which this court stated the appropriate standard of review of a motion to dismiss involving matters outside the pleadings:

“Because, on the issue of res judicata, the trial court considered matters outside the pleadings, we conclude that the motion to dismiss on that ground should be treated as one for a summary judgment, and that we should review the res judicata issue by the summary-judgment standard. We review a summary judgment de novo. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law.”

Insofar as the both SouthTrust’s and the wife’s motions are based upon the assertion of affirmative defenses, the above-quoted standard of review is, of course, correct. Unless the facts necessary to establish the affirmative defenses asserted by the defendants are affirmatively shown to be true in the plaintiffs complaint (which would then convert the motion to dismiss to one for a judgment on the pleadings pursuant to Rule 12(c), Ala. R. Civ. P.), a motion to dismiss dependent on such extraneous facts would require consideration of matters, i.e., evidence, outside the pleadings and could not be granted if genuine issues exist as to such facts.

Although found in section I of the “Argument” portion of the husband’s brief, which is devoted primarily to the dismissal of the husband’s claims against South-Trust, the following argument is made on appeal by the husband:

“Judgment on the pleadings and motion to dismiss share a similar analysis. A judgment on the pleadings approaches from a negative aspect: a party is not entitled to a judgment on the pleadings unless the pleadings show no material facts in dispute. See Stockman v. Echlin, Inc., 604 So.2d 393 (Ala.1992). Positively, as to a dismissal, ‘[i]t is never proper to dismiss a complaint if it contains even a generalized statement of facts which will support a claim for relief.’ Dunson v. Friedlander Realty, 369 So.2d 792 (Ala.1979).
“As the Pleadings plainly show a dispute of material fact between [the husband] and the Appellees, the Court could not have properly made a judgment on the pleadings or a dismissal.”

Appellant’s brief at p. 10 (emphasis added).

The husband reviews in detail the factual elements which must be shown to prove the affirmative defenses of res judicata, collateral estoppel, and accord and satisfaction. The husband’s brief then states:

“The marital debt settlement provisions in paragraph nine of the divorce judgment do not include the violation of the line of credit agreement between SouthTrust and [the husband].... The specifics of allegations of the complaint and the unnamed account in the agreement disagree greatly as to the amounts owed and as to whether the account is joint or solely owned by [the husband].
“Simply stated, the parties did not address the Home Equity Line of Credit in their Settlement Agreement. The parties properly did not make South-Trust a party to the divorce.
“[The wife], in her Motion to Dismiss, admits to the allegations in the complaint when she says: 'Plaintiff and Defendant were husband and wife at the time the events complained of occurred.’ ... Factual issues therefore remain as to conversión, negligence, liability of [the wife] and/or SouthTrust for damages.”

Finally, in section III of the “Argument” portion of his brief, the husband argues as follows:

- “[The wife’s] motion to dismiss reads in terms of the affirmative defenses raised by SouthTrust.... She states that she ‘would pay the disputed debts from proceeds of the accident’ recovery. ... The divorce settlement agreement reads similarly.... [The wife] admits to the allegations in the complaint when she says: ‘Plaintiff and Defendant were husband and wife at the time the events complained of occurred.’ Factual issues therefore remain as to conversion, negligence, liability of [the wife] and/or SouthTrust for damages.
“The elements of res judicata, estop-pel and accord and satisfaction ... apply equally to [the wife’s] motion as they do to SouthTrust.
“The issues presented in this cause were not addressed in the divorce.... Neither the Home Equity Line of Credit, nor the amount drawn from that account by [the wife], appears in the Settlement Agreement. As these issues have not been previously litigated and remain unsettled between the parties to the divorce, [the husband’s] complaint contains factual issues that should be heard and not dismissed.”

Appellant’s brief at pp. 15-16.

In her brief to this court, the wife addresses the merits of the arguments made by the husband by reviewing the elements of res judicata and arguing that those elements exist in the present case. Apparently in reference to the assertion in her motion to dismiss that the husband’s claims should have been raised before the same court that entered the parties’ divorce judgment, the wife then argues that the husband should have filed a contempt action in that court.

I believe the husband’s brief fairly apprises the wife of the arguments the husband asserts as grounds for reversal. As this court recently recognized:

“Our ‘appellate rules place emphasis on reaching the merits of litigation.’ Thoman Eng’rs Inc. v. McDonald, 57 Ala.App. 287, 289, 328 So.2d 293, 295 (Civ.App.1976). In McDonald this court stated its duty in respect to the review of an appellant’s brief under Rule 28, Ala. R.App. P.: ‘to determine ... whether an issue on the merits has been raised in a manner which is fair to all concerned.’ McDonald, 57 Ala.App. at 290, 328 So.2d at 294.”

Benjamin v. Benjamin, 858 So.2d 270, 272 n. 1 (Ala.Civ.App.2003). See Rule 1, Ala. R.App. P. (“[The Rules of Appellate Procedure] shall be construed so as to assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits.”); see also Propst v. Brown, 250 Ala. 282, 34 So.2d 497 (1948).

In addition, the wife obviously understood the arguments being made and was not prejudiced by the order or manner of presentation of those arguments in the husband’s brief. Our observations in Benjamin v. Benjamin with respect to the appellee’s responsive brief are therefore equally applicable in the present case:

“ ‘[D]espite the apparent handicap, [the appellee] did respond to this issue in his brief, and, in these circumstances, [the appellee] suffering no actual hardship due to [the appellant’s] omissions, we determine that it is in keeping with the spirit of the [Ala. R.App. P.] to decide this question on its merits.’
“[Thoman Eng’rs Inc. v.] McDonald, 57 Ala.App. [287] at 290, 328 So.2d [293] at 295 [(Civ.App.1976)]. See also Kirksey v. Roberts, 613 So.2d 352, 353 (Ala.1993) (stating that our supreme court will consider a case on the merits even if the appellant’s brief fails to comply with Rule 28 and does not contain any authority in support of the appellant’s claims if the court is able to adequately discern the issues presented); Bishop v. Robinson, 516 So.2d 723, 724 (Ala.Civ.App.1987)(stating that, if the appellee adequately responds to the issues raised by the appellant in her brief, the court can consider the merits of the case despite the failure of the appellant to comply with Rule 28, in light of the preference that cases be decided on the merits).”

Benjamin, 858 So.2d at 272 n. 1.

Based on the foregoing, I respectfully dissent as to the main opinion’s conclusion that the husband has not presented an adequate argument with respect to whether. the trial court should have granted the wife’s “motion to dismiss.” Further, because I find the husband’s argument to be meritorious, I would reverse that portion of the trial court’s judgment granting the wife’s “motion to dismiss.”

      . According to her brief on appeal, the wife sued an unrelated party seeking damages from a “car accident”; that action was filed in the Houston Circuit Court, case number CV-103.

      . SouthTrust contends that the summary-judgment standard of review applies to this appeal because, it argues, its motion to dismiss was converted to a Rule 56, Ala. R. Civ. P., motion for a summary judgment. See Rule 12(c), Ala. R. Civ. P. However, South-Trust did not submit the supporting evidence necessary to convert its motion to dismiss into a motion for a summary judgment.

      . As discussed further below, the primary assertion in the wife's motion to dismiss was that any obligation by the wife to repay the husband for moneys withdrawn from the husband's home-equity line of credit was subsumed in the parties’ divorce settlement agreement. The wife’s motion suggests, but does not expressly state, defenses in the nature of res judicata or contractual waiver, arising out of the parties' settlement of their divorce and the judgment resulting therefrom. The motion concludes with the additional contention, based upon the wife's assertion that "the property settlement between [the husband] and [the wife]” addressed the debt at issue, that any further litigation should be addressed in the court that handled the parties’ divorce. Nowhere in her "motion to dismiss” does the wife seek the dismissal of the husband's complaint on the Rule 12(b)(6) ground of "failure to state a claim upon which relief can be granted.”

      . The brief also contains arguments regarding waiver as that affirmative defense relates to SouthTrust's motion to dismiss.

      . Section III is entitled "WHETHER the court erred when it granted [the wife’s] motion to dismiss?”


source: Caselaw Access Project

author: THOMPSON, Judge. CRAWLEY, Judge, MURDOCK, Judge,

license: Public Domain

text:
    J.A.H. v. CALHOUN COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2020206.
    Court of Civil Appeals of Alabama.
    May 23, 2003.
    Nancy P. Vernon of Maloney & Vernon, L.L.C., Jacksonville, for appellant.
    William H. Pryor, Jr., atty. gen.; and J. Coleman Campbell, deputy atty. gen.; and Lynn S. .Merrill and Connie M. Carraway, asst, attys. gen., Department of Human Resources, for appellee.
   THOMPSON, Judge.

This case has previously been before this court. At the original hearing scheduled in this matter, M.H. (“the mother”) and J.A.H. (“the father”), were represented by the same court-appointed attorney. Before the hearing began, the mother and the father separated; the court-appointed attorney ceased representing the father due to a conflict of interest. On April 3, 2002, the Calhoun Juvenile Court (“the trial court”) terminated the mother’s and father’s parental rights to H.L.H. (“the child”). The father appealed and this court reversed the trial court’s decision to terminate the father’s parental rights and remanded the action to the trial court so that it could appoint counsel to represent the father. See J.A.H. v. Calhoun County Dep’t of Human Res., 846 So.2d 1098 (Ala.Civ.App.2002).

On remand, the trial court appointed an attorney to represent the father. On November 21, 2002, the trial court held a hearing and terminated the father’s parental rights. The father filed a timely appeal.

The father, who was 25 years old at the time of the hearing, testified that on August 20, 2001, he pleaded guilty to 4 counts of armed robbery. The father was sentenced to serve 4 consecutive 25-year terms of imprisonment and was incarcerated in the Ventress Correctional Facility. The father will not be eligible for parole until September 2009; at that time, the child will be 10 years old. At the time the hearing commenced, the father had not visited with the child in two years, even though he had been imprisoned for only one year and three months. The father testified that he did not know the child’s date of birth.

Linda Bodenheimer, a clinical psychologist, evaluated the father in July 1999 by administering a series of tests. Based on those tests, Bodenheimer concluded that the father was depressed unless he was acting out against someone; Bodenheimer also concluded that the father was self-centered and did not respect authority. Bodenheimer testified that the father’s intelligence was “borderline” and that his reading and writing skills were below average; however, she noted that the father had “street smarts.” Bodenheimer noted that the father was most concerned with his own problems and that he did not put the child’s needs ahead of his own. Bo-denheimer acknowledged that she had not observed the father with the child, but she stated that, based on his psychological evaluation, it would be “extremely difficult” for the father to properly parent the child.

James Holiday served as the mother and father’s marriage and family therapist, and he counseled the father individually. Holiday testified that, in the beginning, the father responded well to therapy and his overall well-being improved dramatically. According to Holiday, the father’s financial situation worsened, and the Department of Human Resources (“DHR”) then removed the child from his home. Additionally, Holiday testified that the father was unable to obtain permanent employment and that he lived in seven different residences during the course of the counseling. The father admitted to Holiday that he was abusing illegal drugs during the period that he was undergoing counseling. According to Holiday, the father’s progress ceased and further attempts at counseling him failed.

Due to worsening financial conditions, the father was forced to take in boarders to pay his rent. According to Holiday’s testimony, at least one of the boarders was discovered smoking marijuana in the father’s residence; the father eventually forced that boarder to leave his residence. The residence itself was unkempt, filled with overturned ashtrays and scraps of uneaten food. Lorna Usrey, a DHR counselor, testified that the father admitted that, during the period that the father’s financial situation was worsening, he and the mother began verbally abusing one another. Usrey also stated that the mother and the father both reported having sexual relations outside of the marriage.

Gloria Craig, a DHR employee, testified that the father’s Individualized Service Plan (“ISP”) required that he attempt to end his use of drugs and alcohol. According to Craig, the father failed every random drug screening that she supervised. Yvonne Gilley, the DHR program supervisor, testified that the father passed only one drug screening during DHR’s involvement with him and the child. According to Gilley, the father did not comply with the ISP requirements that he improve his financial situation, end his drug use, and improve his marital relationship with the mother.

Craig was assigned to interview those relatives that might serve as an alternative placement' for the child. The child was placed with B.H. (“the uncle”) and C.H. (“the aunt”) for approximately one month, but that placement ended at the aunt’s request because she and the uncle were experiencing marital difficulties. The paternal grandmother was not considered as a relative placement because DHR was investigating allegations of child abuse and neglect made against her. The father’s brother was contacted but indicated that he was financially unable to care for the child. J.H., whose name was listed as a relative placement, was disqualified when DHR discovered that he was not the child’s blood relative. Craig noted that, during the search for relative placements, the father attended very few visitations with the child; however, she also noted that, during the visitations he did attend, he and the child interacted well.

Elaine Hubbard, a social worker who supervised the child’s foster care, testified that DHR has had custody of the child since 2000. Hubbard stated that, at the time she was assigned to the child’s case, the child was three years old and had been in DHR’s custody for two years. At the time DHR took custody of the child, she had problems with her speech, and she was prone to kicking, hitting, and biting both people and objects. Hubbard visited the father in jail, seeking information about relative-placement options. Hubbard testified that the father only provided a list of first names of people to be considered as potential relative placements; that list did not contain addresses or phone numbers. Hubbard performed a home study on the paternal grandmother and stated that the paternal grandmother was very ill and that, financially, her debt far exceeded her income.

Stacey Rolfe, a DHR employee assigned to the foster-care and adoption unit, testified that the child has been diagnosed with fetal alcohol syndrome and a speech disorder. The child was receiving therapy and was enrolled in a behavior-modification plan devised by an agency referred to in the record as the “Mental Health Center.” Rolfe reported that the child had been placed with a stable foster-care family and that DHR had arranged for the adoption of the child with an unspecified family if the father’s parental rights were terminated. Rolfe testified that, except for the paternal grandmother, not one of the father’s relatives had contacted DHR offering to serve as a placement for the child.

In its November 21, 2002, order, the trial court found that the child had been previously adjudicated dependent on July 12, 1999, and that she was still dependent at the time of the hearing in this matter. The trial court determined that, considering the evidence and the grounds for termination found in § 26-18-7, Ala.Code 1975, the father’s parental rights should be terminated.

Section 26-18-7, Ala.Code 1975, sets forth the statutory authority for the termination of a parent’s parental rights; it provides, in pertinent part:

“(a) If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
“(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for [the] needs of the child.
“(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.
“(4) Conviction of and imprisonment for a felony.
“(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.
“(6) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
“(7) That the parent has been convicted by a court of competent jurisdiction of any of the following:
“(8) That parental rights to a sibling of the child have been involuntarily terminated.
“(b) Where a child is not in the physical custody of its parent or parents appointed by the court, the court, in addition to the foregoing, shall also consider, but is not limited to the following:
“(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.
“(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent.
“(3) Failure by the parents to maintain consistent contact or communication with the child.
“(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”
This court has stated:
“Every parent has a prima facie right to custody of his or her child and that right can only be overcome by a showing of clear and convincing evidence that removing the child from the parent’s custody would be in the best interests of the child. M.H.S. v. State Dep’t of Human Resources, 636 So.2d 419 (Ala.Civ.App.1994).
“ ‘The trial court is given the authority to terminate parental rights if it finds from clear and convincing evidence that the parents are unable or unwilling to discharge their responsibilities to and for the children. § 26-18-7, Ala.Code 1975. The trial court shall consider whether the parents have abandoned their children, whether the parents have problems with drugs or alcohol, and whether reasonable efforts to rehabilitate the parents have failed. § 26-18-7(a), Ala.Code 1975. If the children are not in the physical custody of their parent or parents, the trial court shall also consider such circumstances as whether the parents have provided material needs for the children, whether the parents have maintained regular, scheduled visits with the children, and whether the parents have adjusted their circumstances to meet the needs of the children according to agreements reached administratively or judicially. § 26-18-7(b), Ala.Code 1975.’
“M.H.S. v. State Dep’t of Human Resources, 636 So.2d at 421.
“Where a nonparent petitions to terminate a parent’s parental rights, the trial court must apply a two-pronged test. Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). The trial court must first determine that the child is dependent. Id. After finding the child dependent, the court must examine viable alternatives to the termination of parental rights. Id. On appeal, the trial court’s determination is presumed to be correct, and it will not be reversed absent a showing that the decision is so unsupported by the evidence as to be plainly and palpably wrong. M.H.S. v. State Dep’t of Human Resources, supra. In a proceeding to terminate parental rights, the paramount consideration of the trial court, and of this court, is the best interests of the children involved. Id.”

A.R.E. v. E.S.W., 702 So.2d 138, 139-40 (Ala.Civ.App.1997).

On appeal, the father argues that the trial court erred by admitting into evidence court reports, authored by DHR representatives, that were allegedly based on hearsay. The father cites this court’s decision in Y.M. v. Jefferson County Department of Human Resources, [Ms. 2010755 Jan. 24, 2003] - So.2d - (Ala.Civ.App.2003), in support of his argument that the court reports contained inadmissible hearsay evidence. However, as this court noted in K.W. v. J.G., 856 So.2d 859 (Ala.Civ.App.2003), Y.M. was a plurality opinion.

Further, Y.M. can be distinguished factually from this case. In Y.M, the appellant/mother objected several times to the trial court’s taking “judicial knowledge” of the court reports submitted to the trial court by DHR. In this case, however, the father did not object when DHR moved to admit reports that might contain hearsay. In K.W., this court held that a party may not raise an issue for the first time on appeal. K.W. v. J.G., supra (citing Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992), and Somers v. McCoy, 777 So.2d 141 (Ala.Civ.App.2000)). The record indicates that the father did not object to the introduction of any of DHR’s court reports; therefore, we must affirm the trial court’s admission of those reports.

The father also argues that DHR failed to search for any possible relative placements that existed as a viable alternative to the termination of his parental rights. The father, while incarcerated, presented Hubbard with a list of the first names of possible relative placements; that list did not contain those relatives’ last names, phone numbers, or addresses. Despite the father’s lack of cooperation in identifying possible relative resources, DHR found and investigated several of his family members; none of those placements were suitable. DHR placed the child with her aunt and uncle who, after one month, returned the child to DHR’s custody. The paternal grandmother was disqualified because of her poor health and her financial difficulties and because DHR was investigating allegations of child abuse and neglect made against her. The father’s brother was contacted and indicated that he was financially unable to care for the child. The testimony indicated that there were no other relatives that approached DHR about taking custody of the child. The trial court determined that DHR had presented clear and convincing evidence that DHR had searched for all viable alternatives to the termination of the father’s parental rights.

The father makes no other arguments in his brief to this court. Given our standard of review and our review of the evidence, we must affirm the trial court’s decision to terminate the father’s parental rights and its determination that DHR did search for viable alternatives before terminating the father’s parental rights. Ex parte Beasley, 564 So.2d 950 (Ala.1990); A.R.E. v. E.S.W., supra.

AFFIRMED.

YATES, P.J., and PITTMAN, J., concur.

CRAWLEY and MURDOCK, JJ., concur in the result.

CRAWLEY, Judge,

concurring in the result.

Although I concur in the affirmance of the judgment terminating the parental rights of the father, I disagree with the statements in the opinion indicating that the holding in Y.M. v. Jefferson County Department of Human Resources, [Ms. 2010755, January 24, 2003] - So.2d - (Ala.Civ.App.2003), is somewhat less than authoritative because Y.M. was a plurality opinion. See my opinion concurring specially in E.W. v. Jefferson County Department of Human Resources, [Ms. 2010856, April 25, 2003] - So.2d -, - (Ala.Civ.App.2003) (Crawley, J., concurring specially), which explains my opinion that the legal principle that hearsay is inadmissible in the adjudicatory phase of a termination proceeding was agreed with by a majority of this court.

MURDOCK, Judge,

concurring in the result.

I concur in the result. I write separately to note my disagreement with the apparent implication in the main opinion’s effort to discount Y.M. v. Jefferson County Department of Human Resources, [Ms. 2010755, Jan. 24, 2003] - So.2d - (Ala.Civ.App.2003), as only a “plurality opinion” that that opinion does not stand for the proposition that hearsay evidence that is otherwise inadmissible under our Rules of Evidence is not competent evidence with respect to the issue whether to terminate parental rights. See E.W. v. Jefferson County Dep’t of Human Res., [Ms. 2010856, April 25, 2003] - So.2d -, - (Ala.Civ.App.2003) (Murdock, J., concurring in the result).


author:
YATES, Presiding Judge.
      THOMPSON, Judge,

text:
    TRIPLE D TRUCKING, INC. v. AMERICAN PETROLEUM EQUIPMENT AND CONSTRUCTION, INC.
    2020216.
    Court of Civil Appeals of Alabama.
    May 23, 2003.
    ChéReé M. Dudley, Bessemer, for appellant. '
    James S. Ward of Corley, Moncus & Ward, P.C., Birmingham, for appellee.
   YATES, Presiding Judge.

Triple D Trucking, Inc. (“Triple D”), appeals from a summary judgment in favor of American Petroleum Equipment and Construction, Inc. (“APEC”), on Triple D’s claim alleging work and labor performed.

We initially note that in reviewing the disposition of a motion for a summary judgment, we use the same standard the trial court used in determining whether the evidence before it presented a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that no genuine issue of material fact exists, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). This court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Banners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

This dispute arises out of the construction of a Winn-Dixie Marketplace supermarket in Pinson, Alabama. Pinson Marketplace, L.L.C. (“Pinson Marketplace”), the owner of the land on which the supermarket was to be built, entered into a contract on November 1, 1999, with Charles & Vinzant Construction Company (“Charles & Vinzant”) to construct the supermarket. Charles & Vinzant, as the general contractor, entered into a subcontract with APEC to perform certain site work for the project. APEC further subcontracted a portion of its work, including hauling dirt, to Specialty Demolition & Salvage, Inc. (“Specialty”). Specialty, in turn, subcontracted with Triple D to complete the dirt hauling for the project.

Triple D apparently ran into difficulties in being compensated for its work done on the project. On June 9, 2000, Triple D filed a mechanic’s lien against the property upon which the supermarket was being constructed; the lien included both the buildings and improvements upon the land. The lien claimed to secure an indebtedness of $44,858.97. On October 23, 2000, Charles & Vinzant moved the Probate Court of Jefferson County to transfer the lien filed by Triple D to a bond pursuant to § 35-11-233, Ala.Code 1975. The probate court granted that motion on the same day.

Triple D, on November 30, 2000, sued Specialty, APEC, Charles & Vinzant, Pin-son Marketplace, and Compass Bank, seeking to recover for work and labor performed and equipment furnished. The complaint also sought to enforce the lien filed by Triple D. Triple D alleged the following in its complaint:

“1. On ... March 13, 2000, [Triple D] and [Specialty] entered into an agreement for work and labor done and equipment furnished in furtherance of improvement of the described property and the construction of a building thereon, located at 4705 Centerpoint Road, Pinson, Alabama 35126, designated the Winn-Dixie Marketplace Project.
“2. [Triple D] agreed to provide the work and labor done and to furnish the equipment for the agreed sum of $45 per hour, and the cost of furnished materials to said construction project.
“3. [Triple D] provided the work and labor and equipment for [Specialty], until [June 1, 2000]. [APEC] on or about [June 1, 2000] discharged [Specialty], and concurrently therewith engaged the services of [Triple D], at which time [APEC] induced [Triple D] to continue to perform work upon the project and stated to [Triple D] that if it would continue to haul its bills for services would be paid. [Triple D] continued to haul and subsequently] tendered its billing invoices to [APEC].
“4. [Triple D] completed performance as agreed, work and labor was done and equipment and materials were furnished until [June 29, 2000, when APEC] stopped calling [Triple D] to schedule trucks to come to the Pinson job site to engage in hauling, and at that time the amount invoiced to the Defendants, was the sum of $90,407.85. Over the course of the accumulation of the said sum the Defendants paid a total of $49,108.95.”

On March 4, 2002, Charles & Vinzant and Pinson Marketplace moved for a summary judgment, .arguing, among other things, that Triple D had failed to provide the notice required by § 35-11-218, Ala. Code 1975, before seeking to enforce its mechanic’s lien. On May 13, 2002, the trial court entered a summary judgment in favor of Charles & Vinzant and Pinson Marketplace, finding that Triple D had failed to provide the required notice of intent to file a mechanic’s lien as required by § 35-11-218, Ala.Code 1975. The trial court made this order final pursuant to Rule 54(b), Ala. R. Civ. P.

APEC moved for a summary judgment on March 5, 2002; APEC amended its motion on March 26, 2002, to argue that Triple D was a general contractor as defined by § 34-8-1, Ala.Code 1975; that Triple D was not licensed as a general contractor; and that contracts entered into by unlicensed general contractors are void. In support of its motion, APEC presented the affidavit of the executive secretary of the State Licensing Board for General Contractors, which indicated that Triple D was not licensed as a general contractor.

Triple D responded to APEC’s amended motion on May 6, 2002, arguing that it is a motor-vehicle contract carrier licensed and regulated by the Alabama Public Service Commission (“the Commission”) pursuant to § 37-3-1 et seq., Ala.Code 1975, and as such is not required to be licensed as a general contractor pursuant to § 34-8-1, Ala.Code 1975. Following a hearing on APEC’s motion for a summary judgment, the trial court, on May 13, 2002, entered the following order, which reads, in part:

“3. [Triple D] presented the Court on this day with an argument that [it] is a common carrier by motor vehicle and/or a contract carrier by motor vehicle that is properly licensed by the Alabama Public Service Commission and, therefore, is not required to be licensed as a general contractor under [§ 34-8-1 et seq., Ala.Code 1975. Triple D] has not presented the Court with any evidence that [it] is so licensed by the Alabama Public Service Commission as a common carrier by motor vehicle and/or contract carrier by motor vehicle.
“[Triple D] is hereby allowed ten (10) days from today’s date within which to submit to the Court proper evidentiary materials to establish that [it] is properly licensed by the Alabama Public Service Commission as a common carrier by motor vehicle and/or contract carrier by motor vehicle. No further evidentiary materials will be accepted by the Court after this ten (10) day period.”

On May 22, 2002, Triple D filed a brief in opposition to APEC’s motion for a summary judgment; a copy of a decision by the Commission indicating that Triple D was issued a motor carrier certificate; the affidavit of Triple D’s president Dan Youngblood; and a letter from APEC to Specialty. On May 31, 2002, APEC moved to strike the filing by Triple D of the Commission’s decision, contending that it was neither an original nor a certified copy and, therefore, was due to be stricken. APEC also moved to strike portions of Youngblood’s affidavit, contending they were hearsay, legal conclusions, inadmissible opinions or conclusions, and that they lacked the proper foundation or predicate. On June 4, 2002, APEC submitted its brief in support of its motion for a summary judgment.

On June 12, 2002, the trial court entered an order striking the decision of the Commission submitted by Triple D and entered a summary judgment in favor of APEC. Triple D appeals, following the denial of its postjudgment motion.

APEC argues on appeal, as it did in support of its motion for a summary judgment, that Triple D was performing “site work” and “grading” on the supermarket project and, therefore, was a general contractor as defined by § 34-8-1, Ala.Code 1975. APEC contends that Triple D was not licensed as a general contractor and that contracts entered into by unlicensed general contractors are void and, therefore, Triple D cannot recover on its claim alleging work and labor performed.

Section 34-8-1, Ala.Code 1975, provides, in relevant part:

“(a) For the purpose of this chapter, a ‘general contractor’ is defined to be one who, for a fixed price, commission, fee, or wage undertakes to construct or superintend or engage in the construction, alteration, maintenance, repair, rehabilitation, remediation, reclamation, or demolition of any building, highway, sewer, structure, site work, grading, paving or project or any improvement in the State of Alabama where the cost of the undertaking is fifty thousand dollars ($50,000) or more, shall be deemed and held to have engaged in the business of general contracting in the State of Alabama.
“(c) For the purpose of this chapter a ‘subcontractor’ is defined to be a ‘general contractor’ as defined in subsection (a), who performs work under contract to another general contractor.”

“It is well settled that ‘[ejxpress or implied contracts entered into by an unlicensed general contractor are null and void because they violate public policy.’ ” White v. Miller, 718 So.2d 88, 89 (Ala.Civ.App.1998), quoting Goodwin v. Morris, 428 So.2d 78, 79 (Ala.Civ.App.1983). To be entitled to a summary judgment on a non-licensure defense with respect to an alleged general contractor, a party must prove “(1) that the alleged contractor was unlicensed; (2) that the contracted work was of the type covered by the licensure statute; and (3) that the ‘cost’ of the work was [$50,000] or more.” Central Alabama Home Health Servs., Inc. v. Eubank, 790 So.2d 258, 260 (Ala.Civ.App.2000).

In Eubank, Eubank had entered into an agreement with Central Alabama Home Health Services (“CAHHS”) and its president George E. Hutchinson to provide services as a “property manager.” Eubank’s work was centered around two planned construction projects. According to Eu-bank, CAHHS needed someone to meet with CAHHS personnel, bankers, architects, engineers, and real estate professionals to coordinate the construction projects. Id.

Eubank sued CAHHS and Hutchinson, alleging breach of contract and account stated based upon the work performed by Eubank and seeking $12,393.95. A jury trial was held in which CAHHS moved for a judgment as a matter of law, arguing that Eubank was not entitled to recover because he had failed to obtain required state occupational licenses. CAHHS argued that the work performed by Eubank was that of a general contractor and that because Eubank lacked a state license to perform general contracting work his claim must fail as a matter of law. The trial court denied CAHHS’s motion and submitted the case to the jury. The jury returned a verdict in favor of Eubank and CAHHS appealed following the denial of its postverdict judgment as a matter of law. Id.

Construing the language of § 34-8-l(a), Ala.Code 1975, this court concluded that the services provided by Eubank were not, as a matter of law, those of a general contractor. In reaching that conclusion, this court noted the testimony of Eubank describing his “go-between” role and the testimony of both Eubank and Hutchinson that Eubank was not hired as a general contractor. Id.

It is undisputed that Triple D was not licensed as a general contractor and that the amount invoiced by Triple D for its work on the project was $90,407.85, which exceeds the statutory minimum of $50,000; the dispositive issue is whether the contracted work was of the type covered by the licensure statute. See Eubank, supra. APEC pointed to Triple D’s complaint in which Triple D alleged that it had entered into a contract to provide work and labor and equipment in furtherance of an improvement to the real property upon which the supermarket was to be constructed. APEC also relied upon the verified statement of hen filed by Triple D and signed by Youngblood in which he stated that the lien was claimed for “labor and vehicles furnished in the completion of the hauling of chert used as a fill medium at the project site.” Further, APEC relied upon the following excerpts from Youngblood’s affidavit:

“Triple D moved dirt on this project to make the foundation for all other construction that was done on the seventeen acres that a lien was filed against.... We transported the loads to the land and filled in the original foundation of the buildings and parking.... Inspections were carried out while we were placing the dirt.”

Triple D argues that its invoices, which were submitted by APEC in support of its original motion for a summary judgment, indicate that it was charging for strictly hauling dirt and not for spreading or compacting the dirt, or for other actual site work. Youngblood specifically testified that “[Triple D] provided a service as a sub-contractor to move dirt on the job.”

We conclude that the record in this case indicates that Triple D was engaged only in the hauling and dumping of dirt for the project. APEC has failed to present evidence indicating that Triple D was engaged in “site work” or “grading.” Accordingly, the summary judgment in favor of APEC is reversed and the case is remanded for further proceedings.

REVERSED AND REMANDED.

CRAWLEY and PITTMAN, JJ., concur.

THOMPSON and MURDOCK, JJ., concur in the result.

THOMPSON, Judge,

concurring in the result.

I agree with the main opinion that the summary judgment in favor of APEC is due to be reversed because I conclude that the issue whether Triple D is a general contractor or a motor-vehicle contract carrier is, in this case, a factual question. However, because Triple D’s status is a factual question, I believe it is the job of the trial court, and not this court, to resolve that issue.

      . Charles & Vinzant and Pinson Marketplace were not made parties to this appeal. Additionally, counsel for Specialty informed the trial court and parties that Specialty was no longer in business and that all of its equipment had been repossessed. Although they were named as defendants by Triple D, Triple D did not prosecute claims against Specialty and Compass Bank. Neither Specialty nor Compass Bank are parties to this appeal.

      . It does not appear that the court struck any portion of Youngblood's affidavit.

      . Section 34-8-l(a), Ala.Code 1975, was amended effective January 1, 1998, to increase the amount in question from $20,000 to $50,000. Neither party contended in Eu-bank that the amendment applied to that case, therefore, the court applied the pre-amendment amount of $20,000. See Eubank, at 260 fn. 3.

      . CAHHS also argued that Eubank performed the work of an "architect.” Because we are only concerned with the defense of nonlicen-sure as it relates to general contractors in the present case, we omit the discussion in Eubank relating to § 34-2-30(2), Ala.Code 1975, and architects.


author: SHAW, Judge.

text:
    Ty William RYAN v. STATE of Alabama.
    CR-01-2203.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 2003.
    Rehearing Denied March 14, 2003.
    Certiorari Denied May 16, 2003 Alabama Supreme Court 1021025.

      John Keith Warren, Ashland, for appellant.
    William H. Pryor, Jr., atty. gen., and Elizabeth Ray Butler, asst. atty. gen., for appellee.
   SHAW, Judge.

The appellant, Ty William Ryan, was convicted of burglary in the first degree, a violation of § 13A-7-5, Ala.Code 1975, of theft of property in the first degree, a violation of § 13A-8-3, Ala.Code 1975, and of theft of property in the second degree, a violation of § 13A-8-4, Ala.Code 1975. He was sentenced, as a habitual offender with five prior felony convictions, to life imprisonment without the possibility of parole for the burglary conviction, to life imprisonment for the first-degree-theft-of-property conviction, and to 20 years’ imprisonment for the seeond-degree-theft-of-property conviction.

The evidence presented at trial indicated the following. On November 21, 2001, Paul Jenkins and his wife went to a house they owned in Clay County; they often used the house when hunting. When they arrived, Mrs. Jenkins noticed that the hot water heater had been left on and that the toilet had not been flushed. Upon further investigation, the Jenkinses discovered that all of the drawers in the house had been “rambled through,” and that the cushions from the sofa had been placed on the floor, and it appeared as if someone had slept on them (giving rise to the burglary charge). (R. 33.) When Jenkins realized that someone had broken into the house, he went outside to check on his Yamaha brand four-wheeler and discovered that it was missing (giving rise to the first-degree-theft-of-property charge). (R. 33-34.) The Jenkinses then notified the police about the break-in. In addition to the four-wheeler, Jenkins testified that the following items were missing from the house: a 12-gauge shotgun and a .22 Magnum rifle (giving rise to the second-degree-theft-of-property charge); several hunting knives and kitchen knives; a saddlebag for his four-wheeler; ammunition; and some items from the refrigerator. (R. 34-38.)

Tony Knight, a patrol officer with the Lineville Police. Department, responded to the call. Officer Knight spoke with the Jenkinses, inventoried the missing items, and filled out an incident and offense report. Shortly thereafter, three other officers from the Lineville Police Department — Investigator Derrick Forbes, Officer Cris Nall, and Officer Stephen Caldwell — arrived at the scene. They concluded that the perpetrator had entered the house through a side window where the screen was missing.

Later that night, the officers followed tire tracks on the ground that began behind the house and found Jenkins’s four-wheeler. The following day, November 22, 2001, Officer Knight and Investigator Forbes followed the same tire tracks and discovered Jenkins’s guns and several other items in a heavily wooded area of the property adjacent to the Jenkins’s house. While Officer Knight was securing the area, a man, later identified as Ryan, walked by with a shotgun. (R. 71.) Officer Nall, who was nearby, also saw Ryan and called out to ask what he was doing. When Ryan came up to Officer Nall, Ryan placed the shotgun under his own chin, as if he were going to shoot himself. Officers Knight and Ryan eventually talked Ryan into surrendering the shotgun, and he was then arrested. Ryan was carrying saddlebags, containing shotgun shells, around his neck, and had a knife sticking out of his pocket.

Ryan was taken into custody and brought to the Lineville police station where he was read his Miranda rights. Ryan acknowledged that he understood his rights, and he signed a waiver-of-rights form. Ryan then gave a written statement to the police confessing that he had broken into the Jenkinses’ house, spent the night there, and taken the four-wheeler, the guns, the knives, and several other items.

I.

On appeal, Ryan contends that the trial court erred, in denying his motion for a judgment-of acquittal, made at the close of the State’s case, because, he says, the State failed to establish a prima facie case of burglary in the first degree. Specifically, Ryan asserts that the State failed to establish that the Jenkinses’ hunting house was a “dwelling” under § 13A-7-l(3), Ala. Code 1975, for purposes of proving burglary in the first degree under § 13A-7-5, Ala.Code 1975.

At trial, Jenkins testified regarding the frequency with which he and his wife went to the hunting house. Jenkins stated that he would “go about every other day except Sundays” during hunting season, and that he went there often in the summers as well to garden. (R. 31.) He explained that because he was a cardiology patient, he attended cardiac rehabilitation on Mondays, Wednesdays, and Fridays, but that he would hunt on Tuesdays, Thursdays, and Saturdays during hunting season on the property in Clay County. (R. 31.) At the time of the incident, the house was furnished, there was food in the refrigerator, and the plumbing, electricity, and heating were operating. (R. 32, 44, 53.) Jenkins stated that he and/or his wife would sleep at the hunting house at least once a week year-round. (R. 51.)

“ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.’ ” Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). “ ‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). “ ‘When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.’ ” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). “The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).

Section 13A-7-5, Ala.Code 1975, provides, in pertinent part:

“(a) A person commits the crime of burglary in the first degree if he knowingly and unlawfully enters or remains unlawfully in a dwelling with intent to commit a crime therein, and, if, in effecting entry or while in [the] dwelling or in immediate flight therefrom, he or another participant in the crime:
“(1) Is armed with explosives or a deadly weapon;.... ”

Section 13A-7-1(3), Ala.Code 1975, defines “dwelling” as a “building which is used or normally used by a person for sleeping, living or lodging therein.”

In Foreman v. State, 546 So.2d 977 (Ala.Crim.App.1986), this Court noted:

“The legislature defined ‘dwelling’ as ‘[a] building which is used or normally used by a person for sleeping, living or lodging therein.’ Ala.Code (1975), § 13A-7-1(3). The Commentary to § 13A-7-1 states that the term dwelling ‘is restricted to buildings used for sleeping and living.’ Thus, we can only conclude that the legislature intended that the term ‘dwelling’ be construed narrowly to encompass only those areas ‘normally used for sleeping, living or lodging’ and not be given the common law construction whereby outbuildings within the curti-lage of the dwelling proper would be included.”

546 So.2d at 981. See also Woods v. State, 568 Solid 331, 333 (Ala.Crim.App.1990) (“Under current law, the premises must be a ‘dwelling,’ see § 13A-7-5(a), ‘which is restricted to buildings used for sleeping and living.’ §§ 13A-7-5 through 13A-7-7, Commentary at 233 (emphasis added [in Woods]).”); and Ward v. State, 701 So.2d 53 (Ala.Crim.App.1996). “Normally” is defined in Black’s Law Dictionary 1059 (6th ed.1990) as follows: “[a]s a rule; regularly; according to rule, general custom, etc.” As the Commentary to § 13A-7-1 notes, the statutory definition of a dwelling “approximates” the Alabama common-law definition. In 3 C. Torcia, Wharton’s Criminal Law § 325 (15th ed.1995), it is stated that at common law “[a] person ‘lives’ in a structure if he uses it regularly for the purpose of sleeping.” In R. Perkins and R. Boyce, Criminal Law, p. 259 (3d ed.1982), the authors noted:

“[ c]ertain it is that the dweller and his entire household may be away for months, without depriving the house of its character as his dwelling. It was ruled in the 1500’s, and often repeated since, that a man may have two dwellings at the same time actually used during alternate periods and that burglary may be committed in the one not being used at the moment, — such as a winter home in the city and a summer cottage in the mountains.”

(Footnotes omitted.) And in Ex parte Vincent, 26 Ala. 145, 152 (1855), referenced in the Commentary to § 13A-7-1, the Alabama Supreme Court stated that at common law a building could be deemed a dwelling, in a burglarious sense, if it is one in which a person “usually or often” lodges at night. See also Moore v. State, 35 Ala.App. 95, 44 So.2d 262 (1950) (construing T. 14, § 86, 1958 Code); and Hamilton v. State, 354 So.2d 27 (Ala.Crim.App.1977) (construing T. 14, § 86, Code of Alabama 1940 (Recomp.1958)).

It is clear from Jenkins’s testimony that the hunting house satisfies the definition of “dwelling” in § 13A-7-1. The house was used regularly for lodging during hunting trips, and it had hot water, heat, electricity, furnishings, including a bed, and a stocked refrigerator. Contrary to Ryan’s contention, there is no language in § 13A-7-1 that can reasonably be interpreted as requiring uninterrupted daily use of a building for it to be classified as a dwelling. Although older cases sometimes discuss the common-law definition of dwelling in terms of “permanent use,” see, e.g., Ex parte Vincent, supra; Reeves v. State, 245 Ala. 237, 16 So.2d 699 (1944); and Russell v. State, 36 Ala.App. 19, 52 So.2d 230 (1951), it appears that those discussions pertained to the common-law requirement that a building, to qualify as a dwelling, not be one that had been abandoned by its owner. See, e.g., Hamilton v. State, supra; Olds v. State, 19 Ala.App. 162, 95 So. 780 (1923); Wharton’s Criminal Law, supra, at § 325. See also Black’s Law Dictionary, 1139 (6th ed.1990) defining “permanent abode” as “[a] domicile or fixed home, which the party may leave as his interest or whim may dictate, but which he has no present intention of abandoning.”

The trial court correctly ruled that the State’s evidence sufficiently established that the Jenkinses’ hunting house was a “dwelling” for purposes of the first-degree burglary statute. The trial court did not err in denying Ryan’s motion for a judgment of acquittal.

II.

Ryan also contends that the trial court erred in failing to give the jury an instruction on burglary in the second degree as a lesser-included offense to the offense of burglary in the first degree.

During the charge conference at the conclusion of the State’s case, Ryan requested that the trial court instruct the jury on the offense of burglary in the second degree as a lesser-included offense to burglary in the first degree. (R. 120-25.) After a lengthy discussion regarding whether the Jenkinses’ hunting house was a “dwelling” or a “building,” the trial court denied the request. Just before the court’s oral charge, Ryan again requested a charge on burglary in the second degree. (R. 149-50.) The following colloquy then occurred:

“THE COURT: You’re requesting burglary second on our [previous] discussions of whether this particular dwelling was a building versus a dwelling?
“[Ryan’s counsel]: Yes, sir.
“THE COURT: And I’ve already determined as a matter of law that this was a dwelling.
“[Ryan’s counsel]: And, therefore, the motion is denied, Your Honor?
“THE COURT: It’s denied.”

(R. 150.) (Emphasis added.) At the conclusion of the jury charge, Ryan once again requested the second-degree burglary instruction. The trial court noted Ryan’s exception to the court’s refusal to give the charge and stated the following for the record:

“THE COURT: ... And for the record, the exception is noted to the Court’s not giving burglary in the second degree as a lesser included offense dealing with dwelling versus building. The Court considered that, considered as a matter of law that there was no evidence which would indicate that the dwelling in this case was anything other than a dwelling. It was definitely a budding, but it was a dwelling. Okay.”

(R. 183-84.) (Emphasis added.)

A defendant has the right to request a jury charge based upon any material hypothesis that the evidence tends to establish, and where there is a reasonable theory to support a requested charge as a lesser-included offense, a trial court’s refusal to give the charge is reversible error. See Ex parte Chavers, 361 So.2d 1106 (Ala.1978); Miller v. State, 675 So.2d 534 (Ala.Crim.App.1996). A court may, however, properly refuse to charge on a lesser-included offense “(1) when it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) when the requested charge would have a tendency to mislead or confuse the jury.” Chavers, 361 So.2d at 1107 (emphasis added). Furthermore, § 13A-l-9(b), Ala.Code 1975, states that “[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.”

In this case, no evidence was presented that would support the giving of an instruction on burglary in the second degree. The trial court made the determination as a matter of law that the Jenkinses’ house was, in fact, a “dwelling,” thereby negating the need to charge the jury on second-degree burglary, which deals with the burglary of a “building” rather than a “dwelling.” This ruling was correct because no evidence was presented to indicate that the Jenkinses’ house was anything other than a dwelling and, therefore, there was no evidence to support a charge on second-degree burglary. Thus, the trial court did not err in refusing to give Ryan’s requested instruction on burglary in the second degree.

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

AFFIRMED.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ„ concur.

      . Ryan's convictions for burglary and for theft of property in the second degree arose from the same act or omission pursuant to § 15-3-8, Ala.Code 1975. "It is proper for a defendant to be convicted of both burglary and theft where the crimes arose from the same transaction.” Brown v. State, 821 So.2d 219, 225 (Ala.Crim.App.2000). However, it is well settled that "[i]n accordance with this statute, ... where a defendant is charged with both burglary and theft (or larceny) arising from a transaction that is the foundation for both charges, the defendant may receive only one punishment.” Ex parte McKelvey, 630 So.2d 56, 57 (Ala.1992)(footnote omitted). In this case, Ryan received concurrent' sentences for his convictions. "A court- may sentence a defendant for burglary and theft if the sentences are made concurrent, rather than consecutive.” Brown, 821 So.2d at 225.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The term 'norma!' is defined in Black’s Law Dictionary 1083 (7th ed.1999) as follows: “[according to a regular pattern; natural[;] ... [ajccording to an established rule or norm.”

      . "Permanent abode” is defined in Black’s Law Dictionary 501, 1160 (7th ed.1999), under the term "domicile,” as "[t]he place at which a person is physically present and that the person regards as home; a person's true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.”


author:
COBB, Judge.
     BASCHAB, Judge,

text:
    Geoffrey Richard BOSTWICK v. ALABAMA BOARD OF PARDONS AND PAROLES.
    CR-01-2238.
    Court of Criminal Appeals of Alabama.
    March 21, 2003.
    Rehearing Denied May 23, 2003.

      Geoffrey Richard Bostwick, pro se.
    Gregory O. Griffin, Sr., chief counsel, and Hugh Davis, Francis A. Long; Sr., and Steven M. Sirmon, asst, attys. gen., Alabama Board of Pardons and Paroles.
   COBB, Judge.

Geoffrey Richard Bostwick is currently serving a 20-year sentence for a 1987 murder conviction. On January 7, 2002, the Alabama Board of Pardons and Paroles (“the Board”) considered him for parole, but voted to deny Bostwick parole and not to schedule him for further parole eligibility consideration.

On January 31, 2002, Bostwick filed a petition for a writ of certiorari in the Montgomery Circuit Court. After the Board responded, the circuit court summarily dismissed the petition on June 11, 2002, in a detailed order. This appeal followed.

Bostwick claimed in his petition and reiterates on appeal that the Board “may” have relied on erroneous information in his file in denying him parole. The circuit court noted in its order that “[t]his claim made by [Bostwick] is merely speculative and unsupported by any evidence provided to this Court.” (C. 65.)

“In the absence of the right to appeal or other adequate remedy, the writ of certiorari lies to review the rulings of an administrative board or commission.” Ellard v. State, 474 So.2d 743, 748 (Ala.Crim.App.1984). Section 12-3-9, Ala.Code 1975, states that the Court of Criminal Appeals shall have “exclusive appellate jurisdiction of ... all postconviction writs in criminal cases.”

“As this court stated in Andrus v. Lambert, 424 So.2d 5, 9 (Ala.Cr.App.1982):
“ ‘The right to a parole is a privilege granted by the people of Alabama to those committed to our penal institutions as punishment for crimes. Holley v. State, 397 So.2d 211, 216 (Ala.Crim.App.), cert. denied, 397 So.2d 217 (Ala.1981). Obtaining an early release through parole, like obtaining a pardon, is wholly contingent upon either the grace of the detaining authority or some affirmative statutory entitlement. United States v. Chagra, 669 F.2d 241, 264 (5th Cir.1982). While no constitutional or inherent right of a convicted person to be conditionally released prior to the expiration of a valid sentence exists, Greenholtz v. Nebraska, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979), a prisoner has the right to be properly considered for parole. Christopher v. U.S. Board of Parole, 589 F.2d 924 (7th Cir.1978); Wallace v. Turner, 525 F.Supp. 1072 (S.D.Fla.1981). The paroling authority must comply with constitutional requirements and may not determine parole eligibility on improper grounds. Wallace v. Turner, supra. A parole should not be denied for false, insufficient, or capricious reasons. Christopher, supra.
“Although no due process guarantees apply to the granting or denying of parole, parole should not be denied for ‘capricious reasons.’ ”

Tedder v. Alabama Bd. of Pardons & Paroles, 677 So.2d 1261, 1263-64 (Ala.Crim.App.1996). See also Strong v. Alabama Bd. of Pardons & Paroles, 859 So.2d 1201 (Ala.Crim.App.2001), and Tucker v. Alabama Bd. of Pardons & Paroles, 781 So.2d 358 (Ala.Crim.App.2000). Therefore, although the Board has nearly unfettered discretion in granting or denying parole, sufficiently pleaded claims that the Board has relied upon false information in its decision-making process are proper subject matter for petitions for a writ of cer-tiorari filed in the Montgomery Circuit Court and appealed to this Court.

In Strong, the petitioner alleged that, in denying him parole, the Board had relied on information in his file that indicated that, while in prison, Strong had been convicted of escape. The petitioner attached an affidavit to his certiorari petition stating that a friend who had been present at the parole hearing told him that the Board “made reference to the escapes when it denied Strong’s parole.” Strong, 859 So.2d at 1204. Neither the circuit court nor the Board addressed the petitioner’s claim. This Court remanded the cause for the circuit court to order the Board to respond to the allegation and, considering the Board’s response, to decide the merits of Strong’s allegation.

Unlike Strong, in this case, as the circuit court noted, the petitioner’s claim is mere speculation in that he has not supported his claim with any evidence. Therefore, we affirm the circuit court’s summary dismissal of the petition.

AFFIRMED.

McMILLAN, P.J., and SHAW, J., concur; BASCHAB, J., concurs specially, with opinion; WISE, J., concurs in the result.

BASCHAB, Judge,

concurring specially.

Because the majority appears to follow the current state of the law, I am forced to concur in the result. However, I also concur specially to urge a change in the law.

The Board argues that “[tjhere is no legal basis for a prisoner to seek judicial review of the Board’s decision not to parole him.” (Board’s brief at p. 28.) Specifically, it contends that “[t]he Alabama Legislature has given the Board of Pardons and Paroles discretionary authority to decide what prisoners may be paroled, and when, and under what conditions.” (Board’s brief at pp. 27-28.) Therefore, it concludes that “the decision to deny parole is not reviewable.” (Board’s brief at p. 25.) For the reasons set forth below, I agree that such a decision is not reviewable in a state court.

Section 15-22-24(a), Ala.Code 1975, provides, in pertinent part:

“The Board of Pardons and Paroles, hereinafter referred to as ‘the board,’ shall be charged with the duty of determining what prisoners serving sentences in the jails and prisons of the State of Alabama may be released on parole and when and under what conditions.”

Section 15-22-26, Ala.Code 1975, provides, in pertinent part:

“No prisoner shall be released on parole merely as a reward for good conduct or efficient performance of duties assigned in prison, but only if the Board of Pardons and Paroles is of the opinion that there is a reasonable probability that, if such prisoner is released, he will live and remain at liberty without violating the law and that his release is not incompatible with the welfare of society.”

In Thompson v. Board of Pardons and Paroles, 806 So.2d 374, 375 (Ala.2001), the Alabama Supreme Court held:

“Section 15-22-26 is a typical parole statute that gives the parole board total discretion in the granting of paroles. Tedder v. Alabama Bd. of Pardons & Paroles, 677 So.2d 1261, 1263 (Ala.Crim.App.), cert. denied, 518 U.S. 1008, 116 S.Ct. 2531, 135 L.Ed.2d 1054 (1996); see also Thomas v. Sellers, 691 F.2d 487, 488-89 (11th Cir.1982). Because the statute provides that parole may be granted at the board’s discretion, it does not confer a liberty interest in parole that is protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. E.g., Tedder, 677 So.2d at 1263.”

(Emphasis added.) See also Hill v. State, 594 So.2d 246 (Ala.Crim.App.1992). In Henley v. State of Alabama Board of Pardons and Paroles, 849 So.2d 255, 260 (Ala.Crim.App.2002), we noted:

“This rationale is also found in § 41-22-3(3), which provides that the Board is not subject to provisions relating to due process at an administrative hearing when it ‘considers the granting or denial of pardons, paroles or restoration of civil and political rights or remission of fines and forfeitures.’ ”

Thus, the opportunity to be released on parole is a privilege, or a matter of grace, rather than a right in Alabama. Compare Coslett v. State, 697 So.2d 61, 64 (Ala.Crim.App.1997) (holding that “[t]he opportunity to earn ‘good time’ is a privilege, not a right, in Alabama”).

Alabama courts have previously held that decisions that are totally discretionary are not reviewable on appeal. With regard to the initial grant or denial of probation, Alabama courts have repeatedly held that such a decision is a matter of grace that is entirely within the discretion of the trial court. See Driggers v. State, 344 So.2d 226 (Ala.Crim.App.1977); Sparks v. State, 40 Ala.App. 551, 119 So.2d 596 (Ala.Ct.App.1959). See also Rheuark v. State, 625 So.2d 1206 (Ala.Crim.App.1993); Alderman v. State, 615 So.2d 640 (Ala.Crim.App.1992); Morgan v. State, 589 So.2d 1315 (Ala.Crim.App.1991); Roden v. State, 384 So.2d 1248 (Ala.Crim.App.1980). The courts have also held that such decisions are not reviewable on appeal. See Rheuark, supra; Alderman, supra; Morgan, supra; Roden, supra. Applying the same rules, this court has also held that “the refusal of a trial court to amend its original sentencing order imposing a reverse split sentence to postpone the period of incarceration indefinitely does not involve the revocation of probation and there is no right to appeal from that refusal.” Thomas v. State, 675 So.2d 1341, 1342 (Ala.Crim.App.1994). Finally, with regard to the decision to refer a defendant to drug court, we have stated:

“We believe that, like the prosecutor’s decision to permit a defendant to complete a treatment program, the prosecutor’s decision to refer a defendant to drug court is solely within the prosecutor’s . discretion. That decision is not subject to appellate review.”

C.D.C. v. State, 821 So.2d 1021, 1025 (Ala.Crim.App.2001) (footnote omitted).

Because the initial decision to grant or deny parole lies completely within the Board’s discretion, this court has previously questioned whether such a decision is reviewable. In Henley v. State of Alabama Board of Pardons and Paroles, 849 So.2d 255, 261 (Ala.Crim.App.2002), we stated:

“After reviewing the Supreme Court’s decisions in Thompson [v. Board of Pardons & Paroles, 806 So.2d 374 (Ala.2001) ] and Ex parte Board of Pardons & Paroles, [793 So.2d 774 (Ala.2000),] we question whether the Board’s rulings denying parole are reviewable by a higher tribunal; especially given the Supreme Court’s language in Thompson to the effect that the Board’s parole decisions are totally discretionary. Cf. Alderman v. State, 615 So.2d 640 (Ala.Crim.App.1992) (the original grant or denial of probation is not reviewable on appeal because it is within the total discretion of the trial court).”

We recognize that, in Andrus v. Lambert, 424 So.2d 5, 9 (Ala.Crim.App.1982), this court held:

“While no constitutional or inherent right of a convicted person to be conditionally released prior to the expiration of a valid sentence exists, Greenholtz v. Nebraska, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979), a prisoner has the right to be properly considered for parole. Christopher v. U.S. Board of Parole, 589 F.2d 924 (7th Cir.1978); Wallace v. Turner, 525 F.Supp. 1072 (S.D.Fla.1981). The paroling authority must comply with constitutional requirements and may not determine parole eligibility on improper grounds. Wallace v. Turner, supra. A parole should not be denied for false, insufficient, or capricious reasons. Christopher, supra.

However, in Monroe v. Thigpen, 932 F.2d 1437, 1442 (11th Cir.1991), the Court of Appeals for the Eleventh Circuit stated:

“It is true that the Alabama parole statute is framed in discretionary terms and therefore does not confer a liberty interest in parole. Ala.Code § 15-22-26 (1975); Thomas, 691 F.2d at 489. Nevertheless, this discretion is not unlimited. A parole board may not engage in ‘flagrant or unauthorized action.’ Thomas, 691 F.2d at 489. Section 15-22-26 cannot be read as granting the Board the discretion to rely upon false information in determining whether to grant parole. Therefore, by relying on the false information in Monroe’s file, the Board has exceeded its authority under section 15-22-26 and treated Monroe arbitrarily and capriciously in violation of due process. Thomas, 691 F.2d at 489.

Finally, we point out that, in Thomas v. Sellers, 691 F.2d 487 (11th Cir.1982), the Court of Appeals for the Eleventh Circuit found that the Board’s action in denying parole in that case had not been arbitrary and capricious. In so holding, it implied that the federal courts are the proper venue for determining whether a parole board has engaged in “flagrant or unauthorized action” in denying parole when it stated:

“We have stressed in the past that absent flagrant or unauthorized action by a parole board the discretionary power vested in a parole board will not be interfered with by the Federal courts.”

691 F.2d at 488 (emphasis added).

Based on the Eleventh Circuit’s holdings in Monroe and Sellers, we should overrule Andrus and its progeny, including Graves v. Alabama Board of Pardons and Paroles, 845 So.2d 1 (Ala.Crim.App.2002); Strong v. Alabama Board of Pardons and Paroles, 859 So.2d 1201 (Ala.Crim.App.2001); Tucker v. Alabama Board of Pardons and Paroles, 781 So.2d 358 (Ala.Crim.App.2000); Tedder v. Alabama Board of Pardons and Paroles, 677 So.2d 1261 (Ala.Crim.App.1996); and Sloan v. Alabama Board of Pardons and Paroles, 647 So.2d 85 (Ala.Crim.App.1994). Because the initial decision to grant or deny parole is completely within the discretion of the Board, such a decision should not be reviewable by state comets. See Braxton v. Josey, 567 F.Supp. 1479, 1480 (D.Md.1983) (noting that review was appropriate in federal court because “Maryland does not provide for judicial review of decisions to deny parole”). Compare Quintero v. Board of Parole and Post-Prison Supervision, 329 Or. 319, 986 P.2d 575, 579 (1999) (noting that state statute “provides that ‘any decision relating to a release date’ is not subject to judicial review”). Cf. Esensoy v. Board of Pardons and Paroles, 793 So.2d 774, 778 (Ala.2000) (holding that “judicial review of the Board’s denial of a request for remission of a fine or forfeiture is limited to those situations where the Board has failed to consider a request that it exercise its discretion or where there is justification for the court’s exercising its equitable jurisdiction”); Kirk v. State, 536 So.2d 118, 119 (Ala.Crim.App.1987) (noting that, “although it has been held that parolees do not have a constitutionally protected liberty interest under Alabama’s parole statutes, they nevertheless are entitled to a due process hearing when an attempt is made to revoke their parole”). Therefore, we should dismiss this appeal.

      . This case was originally assigned to another Judge on the Court of Criminal Appeals on November 4, 2002. It was transferred to Judge Cobb on February 14, 2003.

      " 10In Andrus v. Lambert, 424 So.2d 5, 9 (Ala.Crim.App.1982), the Alabama Court of Criminal Appeals stated that ‘parole should not be denied for false, insufficient, or capricious reasons.' Andrus further states that a prisoner has a right to be properly considered for parole and that the 'paroling authority must comply with constitutional requirements and may not determine parole eligibility on improper grounds.' Id. at 9. Andrus relied principally on a Seventh Circuit case, Christopher v. United States Bd. of Parole, 589 F.2d 924, 927 (7th Cir.1978), which was decided before Greenholtz, supra. In Christopher, the Seventh Circuit noted that, under federal regulations, once a federal prisoner had been given an effective parole date his release could be denied only upon the occurrence of a few specified events. Christopher at 928. The court held that these regulations created an expectancy of parole sufficient to trigger the protection of the Due Process Clause. Id. at 927. Unlike the regulation at issue in Christopher, the Alabama parole statute creates no expectancy of parole entitled to the protections of the Due Process Clause. Thomas, supra. Moreover, the question of whether a state law creates a federally protected right does not depend exclusively on the construction of that law by state courts. Ellard v. Alabama Bd. of Pardons and Paroles, 824 F.2d 937, 944 & n. 7 (11th Cir.1987), cert. denied, 485 U.S. 981, 108 S.Ct. 1280, 99 L.Ed.2d 491 (1988). Accordingly, although we find Andrus instructive, we rely instead upon Thomas, supra.”


author: PER CURIAM.

text:
    Ex parte Lutha James ROBINSON. (In re State of Alabama v. Lutha James Robinson).
    CR-02-1153.
    Court of Criminal Appeals of Alabama.
    May 23, 2003.

      Lutha James Robinson, pro se.
    William H. Pryor, Jr., atty. gen., and James B. Prude, asst. atty. gen., for respondent.
   PER CURIAM.

The petitioner, Lutha James Robinson, filed this petition for a writ of mandamus directing Judge Loyd Little, Jr., to reissue his previous order denying his postconviction petition so that Robinson can file a timely notice of appeal. In July 2002, Robinson filed a postconviction petition pursuant to Rule 32, Ala.R.Crim.P. Judge Little denied the petition on November 14, 2002. In January 2003, Robinson inquired as to the status of his Rule 32 petition and requested a copy of the case action summary sheet. Robinson then learned that his petition had already been denied. In February 2003, Robinson wrote Judge Little and informed him that although the petition was denied in November 2002 he never received notice of its denial; therefore, he said, he was unable to file a timely notice of appeal. This petition followed.

The State has conceded that this petition should be granted. The State contends that there is no information to contradict Robinson’s assertions and, in fact, the prison logs reflect that Robinson received no legal mail from November 14, 2002, to the end of 2002 — the dates in which he should have received notice of the denial of the petition in order for his notice of appeal to be timely.

As the Alabama Supreme Court stated in Ex parte Miles, 841 So.2d 242, 244-45 (Ala.2002):

“In Ex parte Johnson, 806 So.2d 1195 (Ala.2001), an inmate petitioned this Court for a writ of mandamus directing the trial court to advise him of the disposition of his Rule 32, Ala. R.Crim. P., petition for postconviction relief. Based upon the facts presented, this Court concluded that, through no fault of his own, the inmate had not received notice that his Rule 32 petition had been denied. Further, because the inmate’s 42-day period in which to appeal had expired, this Court ordered that the trial court vacate its order denying the inmate’s Rule 32 petition, that a new order be entered, and that the inmate receive prompt notice of that order. In making this determination, this Court observed:
“ ‘ “Procedural due process, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, § 6, of the Alabama Constitution of 1901, broadly speaking, contemplates the rudimentary requirements of fair play, which include a fair and open hearing before a legally constituted court or other authority, with notice and the opportunity to present evidence and argument, representation by counsel, if desired, and information as to the claims of the opposing party, with reasonable opportunity to controvert them.... Although it is generally held in Alabama that a party is under a duty to follow the status of his case, whether he is represented by counsel or acting pro se, and that, as a general rule, no duty rests upon either the court or the opposing party to advise that party of his scheduled trial date, see the cases collected at 18A Ala. Digest Trial § 9(1) (1956), a party’s right to procedural due process is nonetheless violated if he is denied his day in court because the court, acting through its clerk, assumed the duty of notifying that party of his scheduled trial date and then negligently failed to do so.
“ ‘ “The circuit court’s dismissal of Weeks’s appeal, on the facts presented, lacked one of the fundamental attributes of a fair judicial proceeding — • the opportunity for all of the parties to be heard — and could never be upheld where justice is fairly administered. Because the sole object and only legitimate end of state government (including the judicial branch of state government) is to protect the citizen in the enjoyment of life, liberty, and property, it would surely amount to ‘usurpation and oppression’ by this state’s judicial branch of government if this branch failed to recognize Weeks’s right to procedural due process and he was not afforded his day in court. Article I, § 35, Ala. Const.” ’
806 So.2d at 1196-97 (quoting Ex parte Weeks, 611 So.2d 259, 261-62 (Ala.1992) (citations omitted)).
“Based upon our review of the material in Miles’s petition, we conclude that Miles’s receipt of the trial court’s denial of his Rule 32 petition 49 days after that order was entered was through no fault of his own. Further, to not allow Miles an opportunity to file a notice of appeal under these circumstances would violate his clear legal right to procedural due process.... Accordingly, as this Court ordered in Johnson, we direct the trial court (1) to vacate its November 16, 2001, order denying Miles’s Rule 32 petition, (2) to enter a new order on Miles’s petition, and (3) to provide Miles prompt notice of that order.”

(Footnote omitted.)

Based on the Supreme Court’s holding in Miles, this petition is due to be granted. Judge Little is directed to set aside his previous order denying Robinson’s Rule 32 petition, to reissue a new order, and to give Robinson prompt notification of the issuance of the order.

PETITION GRANTED; WRIT ISSUED.

McMILLAN, P.J., and COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . "The proper avenue for seeking an out-of-time appeal from the denial of a Rule 32 petition is to file another Rule 32 petition in the circuit court or to file a petition for a writ of mandamus in this Court.” King v. State, [Ms. CR-00-0508, April 26, 2002] - So.2d -, - (Ala.Crim.App.2002). See also Fountain v. State, 842 So.2d 719 (Ala.Crim.App.2000), aff’d in part, rev'd in part, 842 So.2d 726 (Ala.2001); Brooks v. State, [Ms. CR-00-1134, April 26, 2002] - So.2d - (Ala. Crim.App.2002).