author: STUART, Justice. LYONS, Justice JOHNSTONE, Justice

text:
    Ex parte STATE of Alabama DEPARTMENT OF INDUSTRIAL RELATIONS, SECOND INJURY TRUST FUND. (In re Roy A. Gibbs, Jr., et al. v. State of Alabama Department of Industrial Relations, Second Injury Trust Fund).
    1000260.
    Supreme Court of Alabama.
    May 3, 2002.
    Rehearing Denied Aug. 23, 2002.

      Frank D. Marsh, general counsel, and Craig A. Donley, asst, general counsel, Department of Industrial Relations, for petitioner.
    Ralph E. Coleman of Coleman & Friday, L.L.C., Birmingham, for respondent Roy Gibbs, Jr.
    David G. Wirtes, Jr., of Cunningham, Bounds, Yance, Crowder & Brown, L.L.C., Mobile; and Jay A. York and J. Stephen Legg of York & Legg, Mobile, for amicus curiae Alabama Trial Lawyers Association, in support of the respondent’s second application for rehearing.
   On Application For Rehearing

STUART, Justice.

The opinion of September 14, 2001, is withdrawn and the following is substituted therefor.

The issue presented by the parties is whether the dependents of a recipient of benefits from the Second Injury Trust Fund (hereinafter “SITF”) are entitled to continue to receive SITF benefits after the death of the recipient. We decide this case on another basis; therefore, we do not reach this issue.

The parties entered a stipulation of facts before the trial court. Those facts are:

“1. [Roy A. Gibbs] was injured on the job with ... Jim Walter Resources, Inc., on March 28, 1992 and was last able to work on April 12, 1992 and [he] was a qualified employee as of this date as provided in Code of Alabama 1975, as amended, [§ ] 25-5-316.
“2. That [Gibbs] had previously received injuries on the job of which [Jim Walter Resources, Inc.] had notice prior to his employment by [Jim Walter Resources, Inc.] which affected his employability with [Jim Walter Resources, Inc.].
“3. [Gibbs] was qualified and entitled to be paid benefits under the Second Injury Trust Fund.
“4. [Gibbs] was paid $165.00 per week from April 1, 1994, until July 29, 1994. Thereafter, [Gibbs] was paid from the ‘Trust’ [§ ] 25-5-316, $165.00 per week until December 28, 1997, at which time the payments increased to $385.00 per week for and during the term of [Gibbs’s] disability.
“5. [Gibbs] was paid these amounts until July 14, 1998, when [he] died [from a cause] not related to the injuries.
“6. At that time, [Gibbs] left surviving him a dependent wife, Cindy Gibbs, and a dependent child, Roy [A.] Gibbs, Jr., a minor, 15 years of age and decedent had residing with him one dependent grandchild, namely, John Kenneth Phillips Gibbs.[]
“7. Upon the death of [Gibbs], the ‘Trust’ discontinued payment of benefits and now refuses to make benefit payments to said dependents.
“8. The Parties stipulate the issue is whether the ‘Trust’ is hable to pay dependent(s) upon the death of [Gibbs].”

(C. 8-9.)

Gibbs’s dependents filed a declaratory-judgment action seeking to establish their rights to continued benefits. The trial court ruled that the dependents were not entitled to receive SITF benefits after the death of the qualified recipient, Roy A. Gibbs. The Court of Civil Appeals, relying on § 25-5-57(a)(5), Ala.Code 1975, reversed the judgment and remanded the case to the trial court. That court held, essentially, that the dependents step into the shoes of the deceased worker and continue to receive the benefits the deceased worker had been receiving. We granted certiorari review. We now reverse and remand.

Gibbs was injured on March 28, 1992. Section 25-5-57(a)(5), Ala.Code 1975, provides:

“(5) Death Following Disability. If an employee sustains an injury occasioned by an accident arising out of and in the course of his or her employment and, during the period of disability caused thereby, death results proximately therefrom, all payments previously made as compensation for the injury shall be deducted from the compensation, if any, due on account of death. If an employee who [sic] sustains a permanent partial or permanent total disability, the degree of which has been agreed upon by the parties or has been ascertained by the court, and death results not proximately therefrom, the employee’s surviving spouse or dependent children or both shall be entitled to the balance of the payments which would have been due and payable to the worker, whether or not the decedent employee was receiving compensation for permanent total disability, not exceeding, however, the amount that would have been due the surviving spouse or dependent children or both if death had resulted proximately from an injury on account of which compensation is being paid to an employee.”

(Emphasis added.)

The dependents’ claim to Gibbs’s workers’ compensation benefits is purely statutory and is governed exclusively by the Alabama Workers’ Compensation Act. The provision of that Act governing benefits to be paid after the employee’s death contains several restrictions on the payment of those benefits.

The restrictions the Legislature placed on the rights of the surviving spouse and children to benefits, where the claimant’s death is not caused by an accident arising out of or in the course of his employment, are: (1) the employee must have sustained a permanent partial or permanent total disability; (2) the degree of the disability must have been agreed upon by the parties or must have been ascertained by the court; (3) the employee’s surviving spouse or dependent children are the only proper recipients; (4) the surviving spouse or dependent children are entitled to the balance of payments that would have been payable to the employee; and (5) the amount of the benefits may not exceed the amount that would have been due if the employee’s death had resulted proximately from an injury on account of which compensation is being paid to an employee. § 25-5-57(a)(5), Ala.Code 1975. The fifth restriction is determinative in this case.

When the death of the employee results from nonwork-related causes, the dependents may not receive more benefits than they would have received if the employee had died as a result of the employment-related injury. The recovery of benefits by dependents following the death of an employee caused by a work-related injury is governed by § 25-5-60, Ala.Code 1975; that section provides, in pertinent part:

“In death cases, where the death results proximately from the accident within three years, compensation payable to dependents shall be computed on the following basis and shall be paid to the persons entitled thereto without administration, or to a guardian or other person as the court may direct, for the use and benefit of the person entitled thereto....”

The parties presented no arguments related to the fifth restriction placed on the recovery of benefits by dependents following the death of the employee from nonwork-related causes. However, “this Court ‘will affirm the judgment appealed from if supported on any valid legal ground.’ ” Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988), quoting Tucker v. Nichols, 431 So.2d 1263, 1265 (Ala.1983).

The Court of Civil Appeals recently decided a case addressing the issue whether a surviving dependent spouse is eligible to receive workers’ compensation benefits even though the worker’s death did not occur as a result of the worker’s work-related injury for which he had received benefits and did not occur within three years of the date of the worker’s injury. The Court of Civil Appeals, in Drummond Co. v. Boatman, 825 So.2d 823 (Ala.Civ.App.2001), held that because Mr. Boatman’s death did not result from his work-related injury and did not occur within three years from the date of the injury, his surviving dependent spouse was precluded from recovering workers’ compensation benefits based on her husband’s injury. In the case before us, Gibbs, the employee, was injured on March 28,1992, and died of nonwork-related causes more than six years later, on July 14, 1998. Therefore, Gibbs’s dependents are not entitled to receive workers’ compensation benefits from the SITF following his death.

Because we conclude that under the facts of this case, the dependents are precluded from receiving benefits because of the restriction imposed by § 25-5-57(a)(5), we need not discuss the issue whether the statutes relative to the SITF otherwise preclude the dependents’ entitlement to benefits.

The trial court correctly found that the dependents were not entitled to continued benefits after Gibbs’s death. Therefore, we reverse the judgment of the Court of Civil Appeals and remand this case for that court to enter a judgment affirming the judgment of the trial court.

APPLICATION OVERRULED; OPINION OF SEPTEMBER 14, 2001, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, SEE, BROWN, HARWOOD, and WOODALL, JJ., concur.

LYONS and JOHNSTONE, JJ., dissent.

LYONS, Justice

(dissenting).

I must respectfully dissent. The main opinion completely abandons the rationale of its original opinion, and in the opinion substituted today, reverses the judgment of the Court of Civil Appeals on a ground not argued by the parties. It does so in reliance on the opinion of the Court of Civil Appeals in Drummond Co. v. Boatman, 825 So.2d 828 (Ala.Civ.App.2001), a case in which, I respectfully submit, the Court of Civil Appeals came to the same inequitable conclusion as does the main opinion in this case.

In Drummond Co., the Court of Civil Appeals, in a 4-1 decision, overruled prior cases and construed § 25-5-60, Ala.Code 1975, which provides for a lump-sum payment of death benefits where the death results from a work-related injury and occurs within three years of the injury, so as to preclude payment of any benefits to the surviving spouse and/or the dependent children of a deceased employee if the employee’s death as the result of the work-related injury occurs beyond that three-year period. By that rationale, the main opinion in this case and the Court of Civil Appeals in Drummond Co. have defeated the operation of § 25-5-57(a)(5), Ala.Code 1975; that section provides that when an employee subsequently dies from causes independent of the work-related injury, the surviving spouse and/or the dependent children continue- to receive monthly disability benefits, not to exceed the amount that would have been due had death resulted from the work-related injury. Judge Yates dissented in Drummond Co., and I agree with her construction of the statutes at issue.

Our easelaw emphatically recognizes our obligation to construe the workers’ compensation law liberally in favor of the employee in order to effectuate the beneficent purposes of the law. See, e.g., Cooper v. Nicoletta, 797 So.2d 1072 (Ala.2001); Yates v. United States Fid. & Guar. Co., 670 So.2d 908 (Ala.1995). The result reached by this Court in the main opinion and by the Court of Civil Appeals in Drummond Co. ignores that principle.

Both § 25-5-57(a)(5) and § 25-5-60 deal with the death of an employee who has been receiving disability benefits. As I read § 25-5-57(a)(5), “Death Following Disability,” it means:

1. If an employee is injured on the job and later dies from the job-related injury and any death benefit is due, the employer can deduct from the death benefit any payments already made as compensation for the injury.
2. If the employee is injured on the job and later dies from a cause other than the job-related injury, the employee’s dependents can collect unpaid benefits not exceeding the amount that would have been due those dependents if the employee’s death had resulted from the work-related injury for which a death benefit would be due.

As I read § 25-5-60, “Compensation for Death,” it means:

When an employee dies within three years and the death is the result of the job-related injury, certain scheduled benefits are due, depending on the number of dependents, etc.

Interpreting § 25-5-60, we can say that all deaths occurring more than three years after the injury are, by definition, not considered work-related. In light of the foregoing, we can then interpret § 25-5-57(a)(5) to mean:

1. When an employee dies from a job-related injury, that is, when the employee’s death occurs within three years of the injury and results from the preceding injury, the employer can deduct prior payments from the death benefit.
2. When an employee dies for any reason more than three years after the initial injury or dies within three years of the injury but from a cause unrelated to the injury, his dependents collect the rest of his benefits, not to exceed what the employee would have received if he or she had died from a job-related injury that occurred within three years.

Under this reading, Gibbs’s dependents should be entitled to the balance of the permanent and total disability payments that would have been due Gibbs had he lived, not to exceed the amount they would have received in death benefits had Gibbs died from his job-related injury within three years.

The benefits mandated in § 25-5-57(a)(5) as compensation to the surviving spouse and/or dependent children of an employee who was rendered disabled by an injury on the job and who later dies are completely different from the death benefits mandated in § 25-5-60 to be paid to a deceased employee’s surviving spouse and/or dependent children following a fatal job-related injury, i.e., an injury that results in the employee’s death within three years of the injury. Section 25-5-57(a)(5) expressly provides that an employee’s surviving spouse and/or dependent children “shall be entitled” to the balance of the disability benefits that would have been due the employee. The only purpose for which death benefits are mentioned in that statute is to provide a “cap” on the benefits due the employees’ survivors. The main opinion has rewritten § 25-5-57(a)(5) so that in the future, upon the death of an employee who has been injured on the job and who has been receiving disability benefits as a result of that injury for more than three years, that employee’s surviving spouse and/or dependent children are entitled to nothing. In many eases, those disability benefits are the sole source of income for the employee and his or her family. To deprive the surviving spouse and/or dependent children of those benefits cannot be the result the Legislature intended for the families of employees who had the misfortune both to be injured on the job and to die before they themselves had received all of the benefits to which they were entitled. I maintain that the main opinion in this case and the Court of Civil Appeals’ opinion in Drummond Co. are wrongly decided. I therefore dissent.

JOHNSTONE, Justice

(dissenting).

I join Justice Lyons’s dissent. I add some observations of my own.

Section 25 — 5—57(a)(5), Ala.Code 1975, compensates dependents for a worker’s after-disability death not resulting from a compensable accident. This category of death is not subject to any three-year-after-accident death deadline. The dependents in the case before us are entitled to recover under this Code section.

Section 25-5-60, Ala.Code 1975, compensates dependents for a worker’s after-disability death resulting from the compensa-ble accident. This category of death is subject to the three-year-after-accident death deadline.

The only function of the three-year-after-accident death deadline in § 25-5-60 is to differentiate between deaths deemed caused by the compensable accident and deaths deemed not caused by the compen-sable accident. A death more than three years after the compensable accident is deemed not caused by the accident simply through a legislative judgment that the issue of causation becomes too speculative after the passage of the three-year interval. Such a death is to be treated just like one more obviously unrelated to the com-pensable accident and is to be compensated to the dependents pursuant to § 25-5-57(a)(5), subject only to the monetary limit imposed by § 25-5-60 on compensation for deaths caused by the compensable accident, which deaths are defined, in part, as those occurring within three years of the compensable accident.

Every death following a compensable accident is necessarily either caused by it or not caused by it. Section 25-5-60 simply means that occurrence within three years is a statutory criterion for the category of deaths deemed to be caused by the com-pensable accident. Section 25-5-57(a)(5) compensates all the others — those belatedly resulting from the compensable accident and those resulting from something else entirely, as in the case now before us— subject to the monetary limits of § 25-5-60.

      . Gibbs's dependents included a surviving spouse, a minor child, and a grandchild. Under the “Death After Disability” provisions of the Workers’ Compensation Act, the only dependents who are entitled to payments after the employee's death are the surviving spouse and children of the employee. Other “dependents” are not eligible. § 25-5-57(a)(5), Ala. Code 1975; Harris v. Kimerling Truck & Parts Co., 504 So.2d 304 (Ala.Civ.App.1986).

      . Those statutes are § 25-5-57(a)(4)f. and -57(a)(5) (as those provisions read on the date of Gibbs's accident) and § 25-5-316.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Roy A. GIBBS, Jr., et al. v. STATE of Alabama DEPARTMENT OF INDUSTRIAL RELATIONS, SECOND INJURY TRUST FUND.
    2990424.
    Court of Civil Appeals of Alabama.
    Oct. 4, 2002.
    Ralph E. Coleman of Coleman, Friday & Clem, Birmingham, for appellant Roy A. Gibbs, Jr.
    Frank D. Marsh, general counsel, and Craig A. Donley, asst, general counsel, Department of Industrial Relations, for appellee.
   After Remand from the Alabama Supreme Court

PER CURIAM.

The prior judgment of this court has been reversed and the cause remanded by the Supreme Court of Alabama. Ex parte State Dep’t of Indus. Relations, 848 So.2d 251 (Ala.2002). On remand, and in compliance with the Supreme Court’s opinion, we hereby affirm the judgment of the trial court.

AFFIRMED.

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


author: PITTMAN, Judge.

text:
    A.M. and B.M. v. LAMAR COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2010564.
    Court of Civil Appeals of Alabama.
    Oct. 4, 2002.

      Glenn Carlyle Noe, Sulligent, for appellants.
    William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill, asst. atty. gen., Department of Human Resources, for appellee.
   PITTMAN, Judge.

The Lamar County Department of Human Resources (“DHR”) filed a petition to terminate the parental rights of A.M. (“the father”) and B.M. (“the mother”) in September 2001 as to their two children, P.A.M. (“the son”) and B.A.M. (“the daughter”). Following a one-day hearing, the juvenile court terminated the parental rights of the father and the mother. Both parents appeal; they argue that the juvenile court erred by terminating their parental rights when, they contend, (1) DHR did not make reasonable efforts to rehabilitate them; (2) DHR did not prove that the efforts it did make to rehabilitate them had failed; and (3) DHR did not properly consider and reject all viable alternatives to a termination of their parental rights.

A nonparent who seeks to terminate a parent’s parental rights must prove by clear and convincing evidence that the children are dependent- and that there are no viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950 (Ala.1990).

Section 26-18-7(a), Ala.Code 1975, states, in pertinent part:

“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 needs of the child.
“(8) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child....
“(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 [DHR] ... leading toward the rehabilitation of the parents have failed.
“(8) That parental rights to a sibling of the child have been involuntarily terminated.”

Section 26-18-7(b) further provides that if the child is not in the custody of the parents, the juvenile court may consider whether the parents are providing monetary support for the child, whether they are regularly exercising visitation with the child, and whether they are adjusting their “circumstances to meet the needs of the child.”

During the hearing, Melanie Dulaney, the mother’s DHR case manager, testified that she began working with the mother in 1990 when the mother was pregnant with the son. She was the mother’s case manager throughout most of the 1990s. Initially, Dulaney testified, the mother needed basic home-management and parenting skills. Dulaney testified that she needed to learn to break housecleaning chores into manageable tasks. Dulaney also testified that after the son was born, the mother needed to learn the basic skills in taking care of a baby, e.g., how to change diapers, how to bathe a baby, and how to properly feed a baby. Beginning in 1991, shortly after the son’s birth, DHR sent a case aide to assist the mother in learning the rudimentary housekeeping and child-raising skills she needed.

During direct examination, Dulaney was asked about the progress the parents made during the years she supervised the mother.

“Q. Was there any progress made in those parenting areas during the time that you were working with them?
“A. No.”

Dulaney testified that the parents regularly had loud arguments that often called for crisis intervention. She also stated that the mother regularly, as frequently as every other day before DHR removed the children, complained that her son’s behavior was out of control and that she needed help handling him.

Charity Moore, a social worker with DHR, began visiting the family in February 2001. During her initial visit, she noticed that the bathroom and refrigerator needed cleaning, and she discussed with the mother the causes of roach infestations. A week later she returned and the house was much dirtier than it had been during her previous visit. There was food on the floor in the kitchen and in the dining room. The kitchen floor was tracked with mud as well. Clothes and toys were on the floor in the son’s room, and he had written on the floor with markers. There were clothes and dirty diapers on the floor of the parents’ bedroom. The bathroom had dirty clothes and dried urine on the floor, and several live roaches were in the bathtub. Moore and the mother discussed the cleaning tasks that needed to be performed and the types of cleaners that should be used.

Four days later, Moore returned to the house and noticed that the rooms were much cleaner. The dirty diapers and food were no longer on the floor, and the bathroom had been cleaned. Moore talked to the mother about taking steps to “baby-proof’ the house, such as putting medicines out of reach.

Two weeks later Moore returned to the house to discuss a report that the mother had given her son a dose of her antidepressant medication. The mother stated that her son had been out of control, and, because she could not find the medicine he had been prescribed for treatment of attention deficit hyperactivity disorder, she had given him some of her prescription medication to calm him. The mother also stated that, later that same day, she had given him a dose of his own ADHD medicine. Moore testified that she discussed the potential dangers of giving a child medicine that had not been prescribed for him with the mother. During this visit Moore also observed an argument between the mother and her son regarding the television. The mother tried to discipline the son for changing the television station while the five-week-old daughter was seated in front of the television set. Moore had to explain to the mother that a newborn does not actually watch or understand television programs.

During her final visit, Moore observed the father trying to feed the baby with a filthy bottle; the mother said she had not washed it between feedings. Moore also observed dishes with dried food on the countertops, the stovetop, and the floor, and she noticed unidentifiable food in uncovered containers in the refrigerator. Floors were scattered with clothes, papers, and refuse; the bathroom floor had dried urine on it. Following this visit, DHR filed a dependency petition and removed the children from the parents’ custody.

DHR placed the children in foster care. DHR formulated an Individualized Service Plan (“ISP”) for the parents and assigned a case aide to teach the parents basic homemaking skills. According to the case aide, the parents made no improvement in their homemaking skills. The same case aide testified that she had been in the parents’ home in 1991 and had tried to teach them the same skills at that time. During the ISP meetings both parents were hostile and threatened the DHR employees. After the parents continued to make no improvement, DHR filed its petition to terminate their parental rights.

Both the mother and the father have moderate to severe mental-health problems. Dr. Teresa Davis, a clinical psychologist, stated that as part of the review process before the termination hearing, both parents received thorough evaluations at a mental health center.- The reports indicate that the mother has borderline intellectual functioning, which makes her prone to making poor judgments and impulsive decisions because she is unable to think through a specific situation completely. A person with borderline intellectual functioning can usually perform adequately in everyday settings but does not tolerate stress or frustration well and needs constant supervision to succeed in anything but simple, repetitive tasks. The mother also has been diagnosed with “schi-zotypal” personality features — e.g., paranoid behavior, bizarre thoughts, and inappropriate actions. The report concluded that the combination of her two conditions makes the mother incapable of supervising and raising a child without constant supervision. The evaluation concluded that the mother needs frequent, perhaps daily, guidance regarding housekeeping, nutrition, budgeting, and child raising. She cannot perform these tasks unassisted.

The father is receiving supplemental social security income for his mental disability; he falls into the bottom 20 percent of the general population for mental function. The father also suffers from a generalized anxiety disorder that causes problems with sleeping and eating, which in turn results in constant irritability and nervousness. He also has a personality disorder that causes him to interact inappropriately with people. His combination of problems leads to an inability to manage stress in everyday life. In periods of stress, his temper becomes uncontrollable. Without continuous counseling and anger-management intervention, the evaluation concluded that the father should not have children in his care.

I. Efforts to Rehabilitate

The parents first argue that DHR did not provide reasonable efforts to rehabilitate them. We disagree. The parents specifically argue that because Sue Thomas, the case aide, testified that she might not have spent two hours each week in their house, as required by the ISP, DHR did not provide reasonable efforts to rehabilitate them. Thomas’s testimony is that she could not recall exactly how much time she spent at the parents’ house each week. Furthermore, the evidence indicates that DHR provided a variety of in-home services to instruct the parents on caring for the newborn daughter, on meal preparation, and on budgeting for food costs. However, the evidence indicates that the parents did not ever learn how to perform these basic tasks without supervision. As stated above, DHR began its involvement with the family in 1991, and in 2001 DHR was still attempting to teach the parents basic housekeeping and child-caring skills. If the mother and the father had not mastered the basic principles of child care and housekeeping during a 10-year period of ongoing instruction, we conclude that requiring the case aide to spend more time with the parents during 2001 would not have resolved the problem. Therefore, we conclude that DHR provided reasonable efforts to rehabilitate the parents.

II. Whether Rehabilitation Efforts Failed

The parents next argue that DHR failed to prove that the efforts to rehabilitate them had failed. We interpret this as a sufficiency-of-the-evidence argument. As stated above, DHR is required to prove by clear and convincing evidence that the children are dependent. The mother has borderline intellectual functioning and the father has a mental-retardation diagnosis. The evidence indicates that neither parent has learned basic parenting or housekeeping skills. During the 10-year period of DHR intervention, the caseworkers repeatedly tried to teach those basic skills to the parents. The evidence indicated that the son had to tell the mother how to feed the daughter her bottles. The evidence also showed that the father watched R-rated movies with inappropriate subject matter for children while they were present and that he became hostile with the caseworkers. By the time of the hearing, the mother had formally refused any further assistance from DHR and only accepted some general counseling. Based on this evidence, we conclude that clear and convincing evidence supports a finding that the children are dependent.

III.Viable Alternatives

The parents lastly argue that the trial court erred by not properly considering and rejecting all viable alternatives to a termination of their parental rights. The alternative suggested by the parents is for DHR to reinstate the degree of services DHR provided when it first became involved with the family in 1991. The record indicates that a case aide was in the parents’ home almost five days a week to ensure that the parents developed and maintained sufficient parenting and household skills. As stated above, clear and convincing evidence supports a finding that the children are dependent and that the parents are unable or unwilling to change their condition to care for the children. Therefore, on the facts of this case, we conclude that the viable alternative of providing intensive in-home help is not required and, in fact, would be futile, at this time.

IV.Conclusion

The juvenile court’s judgment terminating the parents’ parental rights is affirmed.

AFFIRMED.

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

THOMPSON, J., concurs in the result.


author: PITTMAN, Judge. CRAWLEY, Judge,

text:
    SHERMAN INTERNATIONAL CORPORATION v. SUMMIT GENERAL CONTRACTORS, INC., et al.
    2010331.
    Court of Civil Appeals of Alabama.
    Oct. 4, 2002.
    Jeffrey W. Brumlow of Massey, Stotser & Nichols, P.C., Birmingham, for appellant.

      L. Tennent Lee III of Wilmer & Lee, P.A., Huntsville, for appellees.
   PITTMAN, Judge.

On January 27, 1999, Sherman International Corporation sued Summit General Contractors, Inc.; Flint River Development Corp., Inc.; Chuck Sisco; and Myron Wilson, alleging breach of contract and seeking to perfect a materialman’s lien. In their answer, the defendants generally denied the allegations of the complaint. On June 10, 1999, the parties requested that the trial court place the case on its administrative docket because the parties had entered into a settlement agreement; the trial court granted the request and placed the case on the administrative docket. On February 26, 2001, Sherman filed a motion to reassign the case to the trial docket and to set the case for trial. On October 1, 2001, Sherman filed a motion to enforce the settlement agreement between the parties or, alternatively, for a judgment on the pleadings. The next day, the defendants filed a motion in opposition to the motion to enforce the settlement agreement; Wilson and Sisco also filed a motion for a summary judgment. Each party filed a brief in support of its own motion and in opposition to the other parties’ motions. On October 30, 2001, the trial court granted Sherman’s motion for a judgment on the pleadings as to the two corporate defendants, Summit and Flint River, and granted Wilson and Sisco’s motion for a summary judgment. Sherman appeals.

Sherman first contends that the trial court erred in not enforcing the settlement agreement entered into between the parties. Secondly, Sherman contends the trial court erred by not barring Wilson and Sisco from asserting the affirmative defense of forgery in their motion for a summary judgment. We disagree with both contentions, and we affirm.

Sherman contends that the trial court erred by failing to enforce the settlement agreement.

In Mays v. Julian LeCraw & Co., 807 So.2d 551 (Ala.Civ.App.2001); this court stated:

“ ‘The law in Alabama is clear in that agreements made in settlement of litigation are as binding on parties thereto as any other contract. A settlement agreement once entered into cannot be repudiated by either party and will be summarily enforced.
“ ‘When parties who are sui juris make a final settlement between themselves, such settlement is as binding on them in many respects as a decree of the court. However, such settlement may be opened for fraud, accident, or mistake.’ ”

807 So.2d at 554 (emphasis added)(quoting Nero v. Chastang, 358 So.2d 740, 743 (Ala.Civ.App.1978)).

The settlement agreement at issue in the present case is very short; it reads, in its entirety, as follows:

“The plaintiff acknowledges that it has received $31,268.60 in partial settlement of its claims in the above referenced lawsuit. The defendants agree to pay the balance of $15,631.96 in installments, the amount of which is to be determined by multiplying the cost of each lot in the Riverbend I and Stillwater Downs III subdivisions by 1.28% as each lot is sold. Such payments are to continue until the aforesaid balance plus simple interest at 8% per annum is paid. The liens and personal guarantees, if any, are to remain in force until plaintiffs claim is paid in full, as set out herein, at which time this action will be dismissed with prejudice. Plaintiff agrees that upon payment of the percentage of the sale price, as set out above, it will release the lot or lots sold from its lien.
“The parties move the court, in consideration of the foregoing settlement agreement, to place this case on the administrative docket until it can be dismissed in accordance with the terms of this agreement.”

The settlement agreement did not compromise the amount of the debt owed by the defendants; it simply provided a manner of payment of that debt. Specifically, the parties agreed that, as each lot in the subdivisions was sold by the defendants, 1.28% of the sales price for that lot would be applied against the outstanding balance owed by the defendants. The settlement agreement did not provide that the action would be dismissed based upon the exchange of promises, but instead specifically provided that the action was to remain pending until it could “be dismissed in accordance with the terms of this agreement.” Thus, the agreement clearly contemplated that the underlying claims against the defendants would remain pending unless and until such time as the debt at issue in those claims was paid through the mechanism described in the agreement.

Unfortunately for the parties to this action, however, the lots in the subdivisions were not sold in the regular course of business. Instead, the defendants defaulted on loans secured by mortgages on the lots, and those mortgages were foreclosed upon.

As a result of the foreclosure, Sherman filed a “motion to enforce settlement agreement or in the alternative motion for judgment on the pleading” to which it attached a copy of the above-quoted settlement agreement. The motion essentially set forth the above-described developments and concluded by requesting that the court “enter an Order enforcing the Settlement Agreement and requiring Defendants ... to pay the remaining amounts due Sherman International Corporation, or in the alternative, enter judgment against the Defendants ... for those amounts due Sherman.”

With no evidence before it other than a copy of the settlement agreement, the trial court was asked to assess the facts, including the agreed-upon fact of foreclosure, construe the settlement agreement, and determine whether the settlement agreement was enforceable. The trial court did this. The court interpreted the settlement agreement as placing the action and the claims brought by Sherman against the defendants in that action “on hold” pending the anticipated sale of the lots. Specifically in this regard, the trial court found:

“1. The ‘Settlement Agreement’ was contingent upon the sale of lots and was to be paid from the sale of residential lots in Riverbend I and Stillwater Downs III Subdivisions.
“2. The defendants have complied with the provisions of the settlement agreement.
“3. The settlement agreement did not enter a judgment against the defendants, but only placed the case on the administrative docket and preserved the rights of the plaintiff if any against the defendants should payment not be made.”

The record, though limited, fully supports these findings.

The trial court specifically noted that the settlement agreement was not the equivalent of a judgment against the defendants but, by having the case placed on the court’s administrative docket, preserved Sherman’s rights in the event that payments were not made in the manner prescribed in the agreement. In other words, the trial court construed the settlement agreement as not intending to substitute the defendant’s contractual obligations under the settlement agreement for their underlying obligations, if any, which were the subject of the action filed by Sherman. The trial court also construed the settlement agreement to contemplate that the event that would trigger a 1.28% installment payment would be a “sale” of a lot in the normal sense of that term.

Sherman argues on appeal, however, that the settlement agreement also contemplated that a foreclosure would constitute a “sale” of the lots for purposes of triggering some payment obligation under the settlement agreement. Other than a copy of the settlement agreement, itself, however, Sherman introduced no evidence to support such an interpretation of the settlement agreement. The plain language of the settlement agreement certainly does not lend itself to such an interpretation. Moreover, we find nothing in the record indicating that the plaintiffs even made this contract-interpretation argument to the trial court. We therefore cannot hold the trial court in error for construing the parties’ settlement agreement as it did. See Sea Calm Shipping Co., S.A. v. Cooks, 565 So.2d 212 (Ala.1990); Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992).

We do not find the terms of the settlement agreement to be ambiguous; therefore, it fell to the trial court to construe those terms. See Cabnetware, Inc. v. Birmingham Saw Works, Inc., 614 So.2d 1034, 1038 n. 2 (Ala.1993); BõWing Office Systems, Inc. v. Johnson, 744 So.2d 915, 918 (Ala.Civ.App.1999). The plain language of the settlement agreement supports the trial court’s reading and construction of the agreement. Thus, we do not hold the trial court in error for concluding that the particular installment method described in the settlement agreement for the satisfaction of Sherman’s claims was contingent on the actual sale of lots. The lots clearly would no longer be sold by the defendants because of the foreclosure, and the trial court could not enforce the settlement agreement.

The trial court realized that it was not the parties' intention, if the settlement agreement could not be consummated, that the defendants would be relieved of their underlying obligations. As the trial court aptly noted, under the settlement agreement, the action was expressly to remain pending to “preserve the rights of the plaintiff if any against the defendants should payment not be made” in the manner prescribed in the agreement. (Thus, in one sense, the trial court actually did enforce the settlement agreement because it awarded Sherman the very relief contemplated by the settlement agreement itself, i.e., reactivation of the action, in the event the installment payments prescribed by the settlement agreement could not be made.) The fact that the trial court went even further and not only reactivated the action but actually awarded the plaintiff a judgment on the pleadings surely is something about which the plaintiff cannot complain. Indeed, Sherman asked for this very relief as an alternative to its motion for enforcement of the settlement agreement. As to this issue we find no error on the part of the trial court.

Sherman’s second argument is that the trial court erred by not barring Wilson and Sisco from asserting the affirmative defense of forgery in their motion for a summary judgment. Sherman contends that Wilson and Sisco are procedurally barred from denying that their signatures on the surety portion of the underlying contract are forgeries. Specifically, Sherman contends that forgery is an affirmative defense that must be pleaded in the defendant’s answer or else it is waived. Wilson and Sisco’s answer provided a general denial to the complaint; it did not include a specific affirmative denial.

Rule 8(c), Ala. R. Civ. P., states, in pertinent part:

“In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”

Forgery is not one of the affirmative defenses listed in Rule 8(c). We find no previous Alabama case that specifically states whether forgery is an affirmative defense to a breaeh-of-contract claim.

A review of relevant caselaw in other jurisdictions shows general disagreement as to whether forgery constitutes an affirmative defense to a breach-of-contract claim. Some jurisdictions refer to the “affirmative defense of forgery” without disclosing whether forgery is an affirmative defense in their jurisdiction by statute or by a procedural rule. See, generally, Seaboard Sur. Co. v. Nigro Bros., 222 A.D.2d 574, 635 N.Y.S.2d 296 (1995); Domingue v. Dickinson, 611 So.2d 796 (La.Ct.App.1992); and Edwards v. Estate of Harrison, 235 Ill.App.3d 213, 601 N.E.2d 862, 176 Ill.Dec. 164 (1992). Some jurisdictions have held that forgery is an affirmative defense based specifically upon the authority of a state statute. See Suris v. Tropical Fed. Sav. & Loan Ass’n, 515 So.2d 1049, 1050 (Fla.Dist.Ct.App.1987)(noting that “forgery must be raised by specific allegation in an answer” and citing § 673.307, Fla. Stat. (repealed 1992)).

On the other hand, many jurisdictions analyze affirmative defenses in such a way that forgery would not constitute an affirmative defense. In the cases from those jurisdictions, there is a more elongated discussion of the reasoning for the court’s conclusions. The Texas appellate courts have consistently analyzed affirmative defenses in the following manner:

“ ‘Affirmative defenses,’ as opposed to a defendant’s denials, are any propositions that a defendant may interpose to defeat the plaintiffs prima facie case. They do not rebut any factual propositions asserted in the plaintiffs case, but open the way for the defendant to adduce evidence establishing an independent reason why the plaintiff may not recover.”

W.R. Grace Co. v. Scotch Corp., 753 S.W.2d 743, 746 (Tex.App.1988)(emphasis on “reason” added); see also Hays Consol. Independent School Dist. v. Valero Transmission Co., 645 S.W.2d 542 (Tex.App.1982). Additionally, in World Enterprises, Inc. v. Midcoast Aviation Services, Inc., 713 S.W.2d 606 (Mo.Ct.App.1986), the Missouri appellate court was faced with the question whether a contract provision limiting a party’s liability was an affirmative defense that should have been specifically pleaded. The reasoning and caselaw applied to analyze the contract provision are instructive:

“An affirmative defense is a defense which avers that even if the petition is true, the plaintiff cannot prevail because there are additional facts which permit the defendant to avoid legal responsibility. The term ‘additional facts’ contemplates new matter, i.e., acts, transactions, or occurrences which do not form part of the original contract or transaction but those which have arisen since the plaintiffs cause of action came into existence.
“Since an affirmative defense by definition includes new matter or additional facts, Rule 55.08 [Mo.R.Civ.PJ requires such a defense to be pleaded in order to give notice to the plaintiff. If the plaintiffs cause of action never had a legal existence, however, the proper answer is a general denial.”

World Enterprises, 713 S.W.2d at 608-09 (footnote and citations omitted). In a footnote to the above discussion the Missouri appellate court specifically noted:

“Additional facts and new matter, when considered in the context of affirmative defenses, may be explained by the following example:
“ ‘[I]n an action for damages for nonperformance of a written contract, if the contract was valid, but had in some way been discharged, that would be new matter; but, if it was forged, the forgery would not be new matter and need not be pleaded. A showing of forgery would be a showing that the alleged cause of action never existed, and hence is fully covered by a simple denial.’
“Cushing v. Powell, 130 Mo.App. 576, 109 S.W. 1054, 1054 (1908).”

World Enterprises, 713 S.W.2d at 609 n. 3. We find the reasoning used by the Texas and Missouri appellate courts in the above-noted decisions to be highly persuasive.

Our own cases provide some guidance in the general area of what constitutes an affirmative defense. “An affirmative defense is defined as ‘new matter which, assuming the complaint to be true, constitutes a defense to it.’ ” Bechtel v. Crown Cent. Petroleum Corp., 451 So.2d 793, 795 (Ala.1984)(quoting Black’s Law Dictionary (rev. 5th ed.1979)). Accord 2A, J. Moore, Moore’s Federal Practice § 8.27 (2d ed,1982)(stating that an affirmative defense concerns matters outside the claimant’s prima facie case).

The averment in Sherman’s complaint that Wilson and Sisco individually guaranteed the contract cannot be assumed true if Wilson and Sisco’s defense is that their signatures to that contract were forged. Therefore, Wilson and Sisco’s assertion of a forgery is not an affirmative defense because it is not external to Sherman’s claims against them. Instead, whether Wilson and Sisco signed the contract in question is an essential internal element of Sherman’s claims. Thus, Wilson and Sis-co’s general denial of the complaint was sufficient to preserve their opportunity to assert the alleged forgeries at the summary-judgment stage and on appeal. See Ex parte Atmore Cmty. Hosp., 719 So.2d 1190, 1193 n. 1 (Ala.1998).

We find that the trial court committed no error in its disposition of Sherman’s motion to enforce the settlement agreement or, alternatively, for a judgment on the pleadings, and we find no error in the trial court’s refusal to bar Wilson and Sis-co from asserting the defense of forgery in their motion for a summary judgment. The judgment of the trial court is due to be affirmed.

AFFIRMED.

THOMPSON, J., concurs.

CRAWLEY, J., concurs in part and concurs in the result.

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

CRAWLEY, Judge,

concurring in part and concurring in the result.

I concur with the court’s holding that the trial court did not err by refusing to bar Wilson and Sisco from asserting the defense of forgery in their motion for a summary judgment. I also concur with the holding that Sherman has no cause to complain of the trial court’s entry in Sherman’s favor of a judgment on the pleadings in the underlying action for breach of contract. This court’s further discussion of the trial court’s refusal to enforce the settlement agreement is, therefore, unnecessary.

      . Exactly what payment amount would be required is unclear, given the nature of a foreclosure.


author: PITTMAN, Judge. YATES, Presiding Judge,

text:
    AUBURN MEDICAL CENTER, INC. v. ALABAMA STATE HEALTH PLANNING & DEVELOPMENT AGENCY and East Alabama Health Care Authority d/b/a East Alabama Medical Center.
    2010257.
    Court of Civil Appeals of Alabama.
    Oct. 11, 2002.

      Alvin T. Prestwood of Volz, Prestwood & Hanan, P.C., Montgomery, for appellant.
    Mark D. Wilkerson and Keith S. Miller of Brantley, Wilkerson & Bryan, P.C., Montgomery, for appellee State Health Planning & Development Agency.
    James E. Williams and J. Flynn Mozin-go of Melton, Espy & Williams, P.C., Montgomery, for appellee East Alabama Health Care Authority.
   PITTMAN, Judge.

Auburn Medical Center, Inc. (hereinafter “AMC”), appeals two interrelated administrative decisions of the Alabama State Health Planning and Development Agency (hereinafter “SHPDA”). The case was originally filed in the Montgomery Circuit Court on April 24, 2001, seeking judicial review of two SHPDA decisions, both rendered on February 28, 2001, and which became effective on March 8, 2001. One decision granted a certificate of need (“CON”) to the East Aabama Health Care Authority d/b/a East Aabama Medical Center (hereinafter “EAMC”) to provide specialty-care assisted living in Lee County, and the other decision denied AMC’s request for a declaratory ruling regarding that CON application as well as other projects of EAMC. AMC had sought a rehearing of those decisions, and SHPDA denied the request by failing to act on it before April 18, 2001. AMC filed timely notices of appeal of both SHPDA decisions to the circuit court. On September 26, 2001, the trial court affirmed the decisions of SHPDA. AMC filed a postjudgment motion, which was denied on October 29, 2001. AMC filed its notice of appeal to this court on December 7, 2001.

Athough this case was submitted on briefs on April 29, 2002, EAMC subsequently filed a motion to dismiss the appeal on August 14, 2002. We will address the motion to dismiss the appeal first.

In its motion, EAMC cites a June 14, 2002, Aabama Supreme Court decision, Ex parte East Alabama Health Care Authority, 847 So.2d 951 (Ala.2002), which held that AMC’s CON had expired in June 1995. Accordingly, EAMC argues that AMC did not have standing to bring the original challenges before SHPDA and the circuit court, nor does AMC have standing now to bring this appeal. Upon a close examination of Ex parte East Alabama Health Care Authority, we must agree with this conclusion and dismiss the appeal due to lack of standing.

In Ex parte East Alabama Health Care Authority, our supreme court answered the crucial question: Did AMC’s CON expire in June 1995 or was the time limitation tolled by the filing of a complaint under SHPDA’s rules and regulations?

“SHPDA issued the present version of AMC’s CON on December 7, 1992. Since [Aa. Admin. Code (SHPDA Rules and Regulations) ] § 410-1-11-.01 stipulates that a CON will expire after 12 months, AMC’s CON was due to expire in December 1993. However, § 410-1-11-.02 states in pertinent part:
“ ‘The holder of the certificate of need must incur a firm commitment or obligation as defined by statute and these rules within the initial twelve (12) month period, or if extended, within the extension period. Should the obligation be incurred before the expiration date of the certificate of need, then the certificate shall be continued in force and effect for a period not to exceed one year, or:
“ ‘(a) the completion of the construction project, where the certificate is for construction;.... ’
“On November 2, 1993, AMC entered into a construction contract ... thus incurring the commitment necessary to extend the duration of the CON beyond the December deadline. Under the terms of § 410-1-11-.02, AMC’s CON was now due to expire upon completion of the construction of the hospital facility. However, § 410-1-11-.04 places a restriction on such an extension. That section states, in pertinent part:
“ ‘If the holder of the certificate of need fails to commence the construction project within the time period stated in the construction contract or to complete the construction project within the time period stated in the construction contract, then the Certificate of Need shall be terminated and shall be null and void.’ ”

847 So.2d at 954. Our supreme court reviewed AMC’s facility-construction contract and concluded that, because AMC’s facility was not completed by the deadline imposed in its construction contract, AMC’s CON expired in June 1995. 847 So.2d at 954. “AMC’s CON had expired as a matter of law in accordance with SHPDA’s Rules and Regulations in June 1995, and nothing in those -rules gives SHPDA the power to resurrect it.” 847 So.2d at 957.

The expiration of AMC’s CON is essential to the resolution of this appeal. Without a valid CON, AMC has no legal right to provide medical services in Lee County. Therefore, AMC has no direct or individual interest in SHPDA’s administrative decisions beyond that of a member of the public at large. “[Standing is an issue of subject-matter jurisdiction, and it does not have to be raised in the trial court to be considered by an appellate court.” Birmingham Zoning Board of Adjustment v. Jackson, 768 So.2d 407, 408 (Ala.Civ.App. 2000).

Standing may be defined as a party’s right to seek legal redress when “ ‘the party has been injured in fact and [when] the injury is to a legally protected right.’ State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1027 (Ala.1999). If a party has no direct or discernable legal interest then he has no standing to challenge an administrative decision, nor can he challenge the decision of a trial court affirming that decision. Cf. Springhill Hosps., Inc. v. Alabama State Health Planning Agency, 549 So.2d 1348 (Ala.Civ.App.1989)(holding that the hospital, which stood to lose patients and whose expansion opportunities would be adversely affected by the agency action, had standing to appeal agency decision).

Once AMC’s CON expired in June 1995, AMC no longer had a direct or legally defendable interest in any decisions of SHPDA regarding health care in Lee County. However, SHPDA’s rules and regulations provide for two forms of third party involvement: (1) declaratory relief pursuant to Ala. Admin. Code (SHPDA Rules and Regulations) Rule 410-1-9-.01 (see also § 41-22-11, Ala.Code 1975, for the corresponding provision in the Alabama Administrative Procedure Act) and (2) intervention pursuant to Ala. Admin. Code (SHPDA Rules and Regulations) Rule 410-1-9-.0S (see also § 41-22-14, Ala.Code 1975, for the corresponding provision in the Alabama Administrative Procedure Act). A declaratory ruling under Rule 410-1-9-.01 is available to “any person substantially affected” by an administrative rule or statute enforceable by an administrative agency. Rule 410-1-2-.18 defines an “affected person” as the applicant, or health care facilities in the same area, or persons who have a letter of intent to provide similar services. AMC meets none of these definitions.

Similarly, intervention under Rule 410-1-9-.03 is available to only three classes of persons: (1) a person who has standing to obtain injunctive relief under § 22-21-276, Ala.Code 1975, (2) a person who has a statutory right to intervene, and (3) a person who has an individual interest in the outcome of the case as distinguished from a public interest. Pursuant to § 22-21-276, Ala.Code 1975, a person entitled to injunctive relief is “any holder of a certificate of need that is adversely affected in the exercise of privileges thereunder by a violation [of Title 22, Chapter 21]” or is “a member of the public directly and adversely affected by such a violation.” Because AMC’s CON expired in June 1995, AMC is not entitled to relief under the first half of the statutory provision. While we recognize that a party may have standing to challenge an agency action without being the primary object of that action, Medical Ass’n of State v. Shoemake, 656 So.2d 863, 865 (Ala.Civ.App.1995), AMC makes no argument showing that it qualifies as a member of the public directly and adversely affected by SHPDA’s decisions in this case.

The only argument AMC makes with respect to standing is to state that it qualifies under § 41-22-ll(a), Ala.Code 1975, as a person “substantially affected by a rule” to seek declaratory relief. However that same Code section requires that the petition “shall state with particularity facts sufficient to show the person seeking relief is substantially affected by the rule.” § 41-22-ll(a), Ala.Code 1975. AMC relied on the existence of its CON to establish its standing before SHPDA and on appeal to the trial court. Because our supreme court has decided that AMC’s CON expired in June 1995, this argument fails.

“When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.” State v. Property at 2018 Rainbow Drive, 740 So.2d at 1028. Thus, if AMC had no standing to challenge SHPDA’s decision to the trial court, the trial court had no jurisdiction to enter an order affirming SHPDA’s decisions. We, too, have no jurisdiction to entertain AMC’s appeal. We must, therefore, dismiss the appeal due to lack of standing on the part of AMC.

APPEAL DISMISSED.

THOMPSON, J., concurs.

YATES, P.J., and CRAWLEY, J., concur in the result.

YATES, Presiding Judge,

concurring in the result.

“Justiciability is a compound concept, composed of a number of distinct elements. Chief among these elements is the requirement that a plaintiff have ‘standing to invoke the power of the court in his behalf.’ ” Ex parte State ex rel. James, 711 So.2d 952, 960 (Ala.1998), quoting Ex parte Izundu, 568 So.2d 771, 772 (Ala.1990). “Standing requires injury in fact.” Kid’s Care, Inc. v. Alabama Dep’t of Human Res., 843 So.2d 164, 166 (Ala.2002). “ ‘Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation.’ ” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999), quoting National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994).

“Mootness doctrine encompasses the circumstances that destroy the justicia-bility of a suit previously suitable for determination. It is not enough that the initial requirements of standing and ripeness have been satisfied; the suit must remain alive throughout the course of litigation, to the moment of final appellate disposition.”

13A Charles A. Wright et al., Federal Practice & Procedure § 3533, at 211 (2d ed.1984)(footnote omitted).

In the present case, Auburn Medical Center, Inc. (“AMC”), had a certificate of need (“CON”) to operate a hospital in competition with East Alabama Medical Center (“EAMC”), when it challenged EAMC’s proposed construction of an assisted living and special-care facility. While this litigation was pending, the Alabama Supreme Court, in separate litigation, declared AMC’s CON void. Ex parte East Alabama Health Care Auth., 847 So.2d 951 (Ala.2002). The present appeal is now moot, because AMC lost its interest in the litigation. Therefore, I concur in the majority’s dismissal of this appeal.

CRAWLEY, J., concurs.

      . Indeed, AMC did not file a response to the appellees’ motion to dismiss in this case.


author: WISE, Judge. SHAW, Judge, BASCHAB, Judge,

text:
    Warner WINBORN, Jr. v. STATE of Alabama.
    CR-01-1386.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2002.
    Rehearing Denied Oct. 4, 2002.
    Warner Winborn, Jr., pro se.
    William H. Pryor, Jr., atty. gen., and James B. Prude, asst. atty. gen., for appel-lee.
   WISE, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, p.j., and COBB, J., concur. SHAW, J., concurs in the result, with opinion. BASCHAB, J., dissents, with opinion.

SHAW, Judge,

concurring in the result.

I concur in the result. See my special writing in Dowdell v. State, [Ms. CR-01-0610, June 28, 2002] — So.2d - (Ala.Crim.App.2002).

BASCHAB, Judge,

dissenting.

Because I believe the circuit court is in a better position than this court to evaluate the validity of a request for post-conviction DNA testing, I must respectfully dissent. See my dissent in Dowdell v. State, [Ms. CR-01-0610, June 28, 2002] — So.2d -(Ala.Crim.App.2002).


author: COBB, Judge.

text:
    Paul Eugene BAILEY v. STATE of Alabama.
    CR-01-1399.
    Court of Criminal Appeals of Alabama.
    Sept. 27, 2002.
    Paul E. Bailey, pro se.
    William H. Pryor, Jr., atty. gen., and Jack W. Willis, asst. atty. gen., for appel-lee.
   COBB, Judge.

On March 25, 1995, Paul Eugene Bailey was indicted for first-degree robbery and attempted first-degree kidnapping. Bailey was convicted of first-degree robbery and second-degree kidnapping. On January 18, 1996, Bailey was sentenced, as a habitual offender, to life in prison without the possibility of parole and to life in prison, respectively. Bailey filed a motion for a new trial; the trial court denied the motion after a hearing. On appeal, this Court affirmed his convictions and sentences in an unpublished memorandum. Bailey v. State, (No. CR-95-0725) 725 So.2d 1075 (Ala.Crim.App.1997) (table).

On January 9, 2002, Bailey filed this, his fourth, Rule 32, Ala. R.Crim. P., petition. Without receiving a response from the State, the circuit court summarily denied the petition on March 8, 2002. Bailey filed a “Motion to Amend, Alter, or Vacate Judgment,” which the circuit court also summarily denied. This appeal followed.

In his petition, Bailey claimed that the trial court was without jurisdiction to render its judgment or to impose sentence because, although he was indicted for the offense of attempted first-degree kidnapping, the trial court erroneously “amended” his indictment to charge second-degree kidnapping, of which he was subsequently convicted. Taking judicial notice of the record of Bailey’s direct appeal, we agree with his claim. See Hull v. State, 607 So.2d 369 (Ala.Crim.App.1992).

Bailey was indicted as follows:

“PAUL EUGENE BAILEY ... did, on or about November 16, 1994, with the intent to commit the crime of kidnapping, a violation of 13A-6N3 of the Code of Alabama, 1975, attempt to commit said offense, to-wit: by attempting to abduct Cheryl D. Gibson while armed with a knife, in violation of 13A-4-2 of the Code of Alabama, 1975.”

(C. 34 from Rule 32 proceedings, C. 7 from direct appeal, R. 52 from direct appeal.)

The evidence adduced at trial showed that Bailey approached the victim while she was sitting in her automobile in line at a drive-through window at a fast-food restaurant. Bailey approached the victim’s car and asked her for a ride. When she refused, Bailey brandished a knife and attempted to open the driver’s door and get into the front seat of the car with the victim. As Bailey tried to slip into the front seat from the driver’s side, the victim got out of the car on the passenger’s side. A manager of the restaurant came outside to see what was happening. Bailey pretended that he and the victim were having a lover’s quarrel, and he walked away. Police apprehended him shortly thereafter.

At the close of the State’s case-in-chief, the trial court determined sua sponte that the evidence presented during trial did not establish first-degree kidnapping in that the evidence did not establish the elements of any of the subsections of § 13A-6-43(a). The trial court decided to “amend” the indictment to include second-degree kidnapping and to instruct the jury on second-degree kidnapping, without the element of attempt. The following exchange occurred:

“THE COURT: ... Now, my first thought was that the Defendant could agree to amend the indictment to set out one or more of these [fact scenarios in § 13A-6-43(a) ], but there’s a lesser included — and if that be the case he did not, jeopardy would not attach, but since a lesser included offense is stated under this indictment, and that is Title 13A-6-44, kidnapping in the second degree, even though the indictment shows one section, it sets out the offense of the other. So, as specifically as I know how to tell you, I intend to charge [the jury] on kidnapping in the second degree, which is a Class C felony and not a Class A felony.
“[Prosecutor]: But not on kidnapping in the first degree?
“THE COURT: I have no intention[ ] of mentioning kidnapping in the first degree.
“[Prosecutor]: So, simply all — we don’t need to distinguish that in our closing arguments—
“THE COURT: No.
“[Prosecutor]: — all we’re talking about is kidnapping. Okay.
“THE COURT: Now, if I was [defense counsel], I would stand and object most vociferously in the charge of any offense because the indictment doesn’t sufficiently apprise him, but that would be the argument you would make, would it not, [defense counsel]?
“[Defense counsel]: Absolutely, Judge, and note my objection.
“THE COURT: And for the Court to proceed under Title 13A-6-44 is prejudicial to your client because you haven’t been apprised of this lesser included offense. I think that’s stretching things, but that would be your argument, would it not?
“[Defense counsel]: Yes, Your Honor.
“THE COURT: And I’m sure your argument, [prosecutor], would be that even though the indictment is not artfully drawn that it sufficiently covers the offense for which he’s charged. Is that what your argument would be?
“[Prosecutor]: Judge, that and that apparently some secretary has not used my form that I have worked diligently on over the last 18 years, because that is not my form, and it would be a scrivener’s error, so — but we’re satisfied with a charge of kidnapping in the second degree. That’s no problem.
“THE COURT: It’s done.”

(R. 53-54 from direct appeal.)

During the charge conference, the following exchange occurred:

“[Prosecutor]: Judge, there’s one thing that — as you say, attempt, and I’d ask Your Honor to spend a little bit more time with this in your general charge. Attempt on kidnapping is the obvious intent. You try to do a crime and you’re unsuccessful in that. But there’s no necessity for that in — you just do some overt—
“THE COURT: I haven’t used the word attempt at all.
“[Prosecutor]: Well, you’ll have to in the kidnapping, because that’s what is charged, attempted kidnapping in the second degree.
“THE COURT: You better read that statute.
“[Prosecutor]: All right, let me read it again.
“THE COURT: ‘A person commits the crime of kidnapping in the second degree if he abducts another person.’ That’s what differentiates this between first and second.
“[Prosecutor]: Right.
“THE COURT: Now, it does say as an element of defense, ‘A person does not commit a crime under this section if the abduction is not coupled with intent to use or threaten the use of force.’ I intend to—
“[Prosecutor]: Right, but he did not abduct her. I mean he tried to abduct her. He told her to get back in the car. She didn’t do it.
“THE COURT: I don’t think you’re listening, [prosecutor].
“[Prosecutor]: All right, it must be going past me then.
“THE COURT: I think if you get in the car and you put a knife on someone and say, You’re not going anywhere,’ they’re abducting. Okay?
“[Prosecutor]: Okay.
“THE COURT: Under the—if you’ll look more under the cases under this:
‘Abduction is a serious form of restraint, and restraint requires an intent to prevent the victim’s liberation by substantial removal, isolation, concealment, so forth. In order to establish the second [sic] in the second degree, the State must show that the accused prevented the liberation of the victim either by use of or threat of use of deadly force or with the intent to secret the victim in a place where she was not likely to be found.’
“I don’t intend to read that second part because that’s not applicable to the facts we have here.
“Okay. Are you all ready?”

(R. 91-98 from direct appeal.)

Initially, we note that, although this is Bailey’s fourth Rule 32 petition, and although he filed this petition outside the two-year period of limitations in Rule 32.2(c), Ala. R.Crim. P., we nonetheless address this claim because it is jurisdictional. See Ex parte Cole, 842 So.2d 605 (Ala.2002) (“When, as here, an indictment for first-degree robbery fails to set forth facts from which one might conclude that the defendant was aided in the robbery by another participant—an essential element of the offense of second-degree robbery— the insufficiency of the factual basis for a guilty plea to second-degree robbery may be subsequently attacked on the basis that the trial court lacked subject-matter jurisdiction to accept the plea.”).

Under the Alabama Code, first-degree kidnapping requires proof of an actual abduction in conjunction with some sort of aggravating factor, and second-degree kidnapping requires proof of only the actual abduction. Section 13A-6-43, Ala.Code 1975, provides in pertinent part:

“(a) A person commits the crime of kidnapping in the first degree if he abducts another person with intent to
“(1) Hold him for ransom or reward; or
“(2) Use him as a shield or hostage; or
“(3) Accomplish or aid the commission of any felony or flight therefrom; or
“(4) Inflict physical injury upon him, or to violate or abuse him sexually; or
“(5) Terrorize him or a third person; or
“(6) Interfere with the performance of any governmental or political function.”

Whereas “[a] person commits the crime of kidnapping in the second degree if he abducts another person.” § 13A-6-44(a), Ala.Code 1975.

Therefore, certainly second-degree kidnapping can be a lesser-included offense of first-degree kidnapping if evidence of the aggravating factor is insufficient. See generally Pettiway v. State, 539 So.2d 372 (Ala.1988); Willingham v. State, 695 So.2d 144 (Ala.Crim.App.1996); and King v. State, 595 So.2d 539 (Ala.Crim.App.1991).

Following that same logic, certainly attempted second-degree kidnapping can be a lesser-included offense of attempted first-degree kidnapping where the abduction is imperfected and the evidence of the existence of the aggravating factor is insufficient.

The problem arises in a case, such as here, where the appellant was indicted for the inchoate, or imperfected, offense of attempted first-degree kidnapping and was subsequently convicted for the perfected offense of second-degree kidnapping, where no facts were alleged in the indictment, or adduced at trial for that matter, that indicated that an actual abduction had occurred.

“(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
“(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or
“(2) It consists of an attempt or solicitation to commit the offense charged to commit a lesser included offense; or
“(3) It is specifically designated by statute as a lesser degree of the offense charged; or
“(4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.”

§ 18A-l-9(a), Ala.Code 1975.

The offense of second-degree kidnapping, which requires an actual abduction, cannot be a lesser-included offense of the offense of attempted first-degree kidnapping, which, as an attempted crime, requires a failure to consummate the abduction. See Committee Comments to § 13A-4-2, Ala.Code 1975. Put another way, attempted first-degree kidnapping requires proof of only “any overt act towards the commission of’ an abduction under § 13A-6-43(a). § 13A-4-2(a), Ala.Code 1975. Second-degree kidnapping requires proof of an additional element; second-degree kidnapping requires proof of the abduction, that is, one step further than a mere attempt. A lesser-included offense cannot require proof of more elements than the underlying offense.

Moreover, we note that, even if Bailey had acquiesced to this “amendment,” of the indictment his conviction and sentence would nonetheless be void. Had the trial court obtained Bailey’s consent to amend the indictment charging attempted first-degree kidnapping by adding the fact that an abduction had actually taken place, a new offense would have been charged because attempted first-degree kidnapping, which does not require proof of an actual abduction, is not “broad enough to include such an element,” as proof of an actual abduction is required in order to convict a defendant of second-degree kidnapping. See, e.g., Ex parte Cole, 842 So.2d 605, 609 (Ala.2002).

For the reasons stated above, we remand this cause in order for the circuit court to vacate Bailey’s conviction and sentence for second-degree kidnapping. However, Bailey’s original indictment for attempted first-degree kidnapping remains valid. Cole, supra. The State may try Bailey on this charge or may reindict Bailey for the proper offense. See Cole, 842 So.2d at 609 (“A reindictment after a conviction that has been held to be void does not constitute double jeopardy because, if a court is without jurisdiction, there can be no valid conviction; hence there is no jeopardy.”).

This cause is remanded to the circuit court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Bailey does not take issue with his first-degree robbery conviction and sentence in this Rule 32, Ala. R.Crim. P., petition.


text:
    Charlotte OWENS v. STATE of Alabama.
    CR-01-1078.
    Court of Criminal Appeals of Alabama.
    Sept. 27, 2002.
    Marshall Gardner, Florence, for appellant.
    William H. Pryor, Jr., atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.
   COBB, Judge.

■ On November 15, 2001, Charlotte Owens was found guilty of two counts of harassment, violations of § 13A-ll-8(a)(l)(b), Ala.Code 1975. Owens appealed these convictions to the Lauderdale Circuit Court. On January 7, 2002, the two harassment counts at issue, two other harassment counts, and two counts of disorderly conduct were consolidated and presented at a trial de novo in the circuit court. On January 10, 2002, Owens was convicted of two counts of harassment. The circuit court sentenced her, in each case, to three months in jail. Each sentence was to run concurrently to the other. The circuit court split those sentences and ordered Owens to serve five days in jail for each conviction. The circuit court suspended the remainder of Owens’s sentences and placed her on probation for two years. This appeal followed.

On August 16, 2001, Vicki Rogers and her daughter, Joy Rogers, were shopping at a Wal-Mart discount store in Florence. While shopping, Vicki and Joy walked down an aisle and encountered Owens and her husband, Ronald Owens. Vicki testified that the Owenses lived near her parents. Vicki’s father, Joy’s grandfather, was suffering from cancer at the time of the encounter.

According to Vicki and Joy, Owens said, in a loud tone of voice, “Look, Ronald, there [are] two of those churchgoing hypocrites.” (R. 56, 71.) Vicki testified that Owens began to laugh after making that statement. Vicki and Joy testified that they attempted to ignore the comment and continued shopping. Shortly thereafter, in a different aisle of the store, Owens, again in a loud tone of voice, said, “One of those hypocrites is fixing to bust hell wide open. And it’s not gonna be too much longer I hear.” (R. 58.)

Vicki and Joy testified that they believed the statement referred to Vicki’s father, who was also Joy’s grandfather, because they had been informed that day that his doctors could do nothing more to treat his cancer. Vicki and Joy testified that Owens’s second statement caused other shoppers to stop and look toward the disturbance.

Vicki testified that the statement infuriated her. She testified that her first thought was to grab Owens. Joy testified that the statement upset her and made her mad. Joy stated that she wanted to punch Owens, but that she restrained herself because she did not want to cause any more of a scene than had already been made by the statements.

Owens and her husband, Ronald, testified that they did not go to Wal-Mart on August 16, 2001. Rather, they testified that they had gone to the Salvation Army thrift shop to donate old clothes, toys, and other items. The defense introduced a receipt from the Salvation Army made out to Owens. The receipt was hand-dated August 16, 2001, and listed clothing in the remarks section.

On appeal, Owens argues that, under the circumstances, the statements she allegedly made did not constitute fighting words and thus were protected by the First Amendment of the U.S. Constitution. Specifically, she contends that the evidence merely tended to show that she made statements to her husband in a conversation and that those statements did not invoke an immediate or violent response from Vicki or Joy Rogers. The State argues that, under the circumstances, the statements constituted fighting words. Thus, the State argues, sufficient evidence was presented to establish that Owens was guilty of harassment. We agree with Owens.

According to § 13A-ll-8(a)(l), Ala.Code 1975,

“[a] person commits the crime of harassment if, with intent to harass, annoy, or alarm another person, he or she either:
“b. Directs abusive or obscene language or makes an obscene gesture towards another person.”

What constitutes abusive or obscene language is dictated by the circumstances surrounding the utterance. R.I.T. v. State, 675 So.2d 97, 99 (Ala.Crim.App.1995). In B.E.S. v. State, 629 So.2d 761 (Ala.Crim.App.1993), this Court stated:

“In order to bring § 13A-ll-8(a)(l)(b) within the range of constitutionally permitted legislation, we have held that the words ‘abusive or obscene language,’ as used in this statute, are to be ‘ “interpreted narrowly to apply only to ‘fighting words.’ ” ’ Robinson v. State, 615 So.2d 112, 113 (Ala.Cr.App.1992) (applying Swann v. City of Huntsville, 455 So.2d 944, 950 (Ala.Cr.App.1984), and Mosley v. City of Auburn, 428 So.2d 165, 166 (Ala.Cr.App.1982), superseded on other grounds, Mason v. City of Vestavia Hills, 518 So.2d 221 (Ala.Cr.App.1987), wherein this Court had previously interpreted in the same manner the same words contained in § 13A-11-7(a)(3), the disorderly conduct statute). See also Shinault v. City of Huntsville, 579 So.2d 696, 699-700 (Ala.Cr.App.1991) (Bowen, J., concurring in result).”

629 So.2d at 763. In Robinson v. State, 615 So.2d 112 (Ala.Crim.App.1992), this Court stated:

“ ‘Fighting words’ are ‘those words which have a likelihood of causing a violent response by the person to whom they are addressed. They are words that by their very utterance provoke a swift physical retaliation and incite an immediate breach of the peace.’ Skelton v. City of Birmingham, 342 So.2d 933, 936-37 (Ala.Crim.App.), remanded [on other grounds], 342 So.2d 937 (Ala.1976).”

615 So.2d at 113.

In South v. City of Mountain Brook, 688 So.2d 292 (Ala.Crim.App.1996), this Court noted:

“ ‘ “Fighting words” are “personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.” Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284 (1971). The utterance itself must “tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. [568,] 572, 62 S.Ct. [766,] 769 [(1942)]. See also Lewis v. City of New Orleans, 415 U.S. 130, 132, 94 S.Ct. 970, 972, 39 L.Ed.2d 214 (1974). “It is not enough that [the words] merely arouse anger or resentment,” Skelton v. City of Birmingham, 342 So.2d 933, 937 (Ala.Cr.App.), remanded on other grounds, 342 So.2d 937 (Ala.1976), or that the words are deemed “a socially unacceptable mode of communication,” State v. Authelet, 120 R.I. 42, 385 A.2d 642, 649 (R.I.1978). It is clear that the words must “by their very utterance provoke a swift physical retaliation and incite an immediate breach of the peace.” Skelton v. City of Birmingham, 342 So.2d at 936-37.’ ”

688 So.2d at 295 (quoting B.E.S. v. State, 629 So.2d 761, 764 (Ala.Crim.App.1993)).

Here, Vicki and Joy stated that they were angered by Owens’s statements. Both testified that their immediate reaction was to want to grab or punch Owens because of the statements. Additionally, both testified that the second statement drew the attention of other persons.

Clearly, statements about the illnesses of or impending death of a father or other close family member are likely to be hurtful and upsetting. However, we cannot say that they have an increased likelihood of attracting an immediate and violent response. Although we do not condone Owens’s comments, those isolated comments, without more, simply do not reach the level of “fighting words” as required by the relevant caselaw. See Conkle v. State, 677 So.2d 1211, 1213 (Ala.Crim.App.1995)(“I’m going to get you, little girl. You’re as good as dead,” did not amount to fighting words and would not sustain conviction for harassment).

Because Owens’s statements did not amount to “fighting words,” her conviction for harassment is due to be reversed and judgment rendered in her favor.

REVERSED AND JUDGMENT RENDERED.

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

      . Owens's motion to dismiss was granted in one of the harassment charges and in the two disorderly conduct charges. The jury found Owens not guilty of one of the remaining harassment charges and guilty of the two remaining harassment charges.


author: WISE, Judge.

text:
    Daniel Deron JOHNSON v. STATE of Alabama.
    CR-01-1645.
    Court of Criminal Appeals of Alabama.
    Sept. 27, 2002.
    Daniel Johnson, pro se.
    William H. Pryor, Jr., atty. gen., and Stephanie N. Morman and Robin Blevins Scales, asst, attys. gen., for appellee.
   WISE, Judge.

The appellant, Daniel Deron Johnson, was convicted of manslaughter, a violation of § 13A-6-3, AIa.Code 1975. On September 7, 2000, the trial court sentenced him to 25 years’ imprisonment. On October 10, 2000, Johnson’s appellate counsel filed a motion for a judgment of acquittal or, in the alternative, a motion for a new trial. That same day, Johnson also filed a motion seeking recusal of the circuit court judge. The circuit court conducted a hearing on Johnson’s motions on December 14, 2000. At the conclusion of the hearing, the court denied Johnson’s motions. Johnson, through his appellate counsel, attempted to appeal his conviction; however, on February 5, 2001, this Court dismissed his appeal as untimely. See Hull v. State, 607 So.2d 369, 371 (Ala.Crim.App.1992) (this Court may take judicial notice of its own records).

On September 28, 2001, Johnson filed a motion for postconviction relief, pursuant to Rule 32, Ala.R.Crim.P., in which he alleged that his failure to timely appeal his conviction was through no fault of his own. Based on this allegation, Johnson requested that the circuit court grant him an out-of-time appeal. On April 30, 2002, the circuit court entered an order denying Johnson’s petition. This appeal followed.

Johnson argues that the circuit court erred in refusing to grant him an out-of-time appeal. The State concedes that Johnson is entitled to an out-of-time appeal, based on his appellate counsel’s failure to timely perfect an appeal.

“Appeal to this court has been [held] to be a matter of right. Failure to file a timely appeal to this court is a classic example of ineffective assistance of counsel.” Mancil v. State, 682 So.2d 501, 502 (Ala.Crim.App.1996). Accordingly, because Johnson presented an allegation that the State concedes is true and that would entitle him to relief, the circuit court erred in summarily denying his claim. See Ex parte Boatwright, 471 So.2d 1257 (Ala.1985). As we stated in Lane v. State, 786 So.2d 1143 (Ala.Crim.App.2000):

“ ‘The failure of counsel to perfect an appeal, resulting in the foreclosure of state appellate review, is a denial of constitutionally effective counsel.’ Jones v. State, 495 So.2d 722, 724 (Ala.Crim.App.1986). ‘Challenges based on the inadequacy of counsel constitute grounds for [Rule 32 relief] .... The traditional relief available on [Rule 32] has been expanded to include a belated or out of time appeal where necessary to insure justice and fairness.’ Jones, 495 So.2d at 723-24.”

786 So.2d at 1145-46.

Based on the foregoing, we reverse the circuit court’s judgment and remand this cause to the circuit court with instructions that it grant Johnson leave to file an out-of-time appeal. We note that the circuit court should also determine whether Johnson is indigent and, thus, entitled to appointed counsel. See Wright v. State, 845 So.2d 836, 840 (Ala.Crim.App.2002) (opinion on return to remand).

REVERSED AND REMANDED WITH DIRECTIONS.

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

      . Because the last day for filing this motion was Saturday October 7, and because Monday, October 9 was a state and federal holiday, Johnson's motion was timely filed. See Rule 1.3(a), Ala.R.Crim.P.

      . At the time of his trial and unsuccessful attempt to appeal, Johnson does not appear to have been indigent. However, based on the motion to proceed in forma pauperis Johnson filed in conjunction with his Rule 32 petition, it appears that his financial status has changed. See, e.g., Malone v. State, 687 So.2d 218, 219 (Ala.Crim.App.1996) (holding that the petitioner was indigent based on the balance of his prison fund in the months preceding the filing of his Rule 32 petition). However, this is a matter that should first be determined by the circuit court.


author: SHAW, Judge.

text:
    M.B.M. v. STATE of Alabama.
    CR-01-1646.
    Court of Criminal Appeals of Alabama.
    Sept. 27, 2002.

      Charlie A. Bottoms, Jr., Florence, for appellant.
    William H. Pryor, Jr., atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   SHAW, Judge.

The appellant, M.B.M., appeals from the juvenile court’s order transferring him to the circuit court for prosecution as an adult on the charge of theft of property in the second degree.

The appellant presents only one issue on appeal: he argues that the juvenile court erred in transferring him to the circuit court because, he says, there was no probable cause to believe that he committed the crime of second-degree theft of property. The appellant preserved this issue by moving to dismiss the State’s motion to transfer at the conclusion of the transfer hearing.

At the transfer hearing, Diana Tidwell, a juvenile probation officer with Lauderdale County, testified that she had been supervising the appellant for approximately two years and that the appellant had several prior delinquency adjudications, including adjudications for theft. The prosecutor then questioned her about the theft-of-property charge that was the subject of the transfer hearing as follows:

“[Prosecutor]: And are you personally familiar with the current charges pending against him?
“[Appellant’s counsel]: Your Honor, I’m going to object to this line of questioning if it’s going to go into what she personally knows. She wasn’t the arresting officer. The only thing she really — would be something that’s hearsay, and I would object to the introduction of that.
“[Prosecutor]: I can rephrase, Your Honor.
“THE COURT: Rephrase.
“[Prosecutor]: As part of your duties, as already testified to, have you become familiar with the substance and nature of the current charge pending against this individual?
“[Tidwell]: Yes. Florence police brought us a new charge of theft of property third.
“[Prosecutor]: And at this time are you prepared to tell the court what the nature and substance of that allegation is?
“[Tidwell]: Yes, I can.
“[Prosecutor]: Would you, please?
“[Appellant’s counsel]: I’m going to object to that, Your Honor.
“THE COURT: Overruled.
“[Tidwell]: Okay. On December 17th [the appellant] was arrested after a shoplifting incident at Dillard’s [department store]. He was arrested outside of Dillard’s. There was another [sic] adult that got away.”

(R. 4-5.) When asked on cross-examination whether she had “any evidence of the allegation to show or support the charge,” Tidwell replied, “No. At this hearing we never present anything like that.” (R. 11.) Other than the testimony set out above, the State presented no other evidence and no other witnesses at the transfer hearing.

A transfer hearing is divided into two phases: a probable-cause phase and a dispositional phase. “During the probable cause phase, the juvenile court determines whether there is probable cause to believe that the juvenile committed the alleged crime.” J.S.A. v. State, 615 So.2d 1288, 1290 (Ala.Crim.App.1998). “It is not necessary at the transfer hearing that the state prove beyond a reasonable doubt that the appellant committed the crime charged.” T.L.N. v. State, 719 So.2d 260, 262 (Ala.Crim.App.1997).

“A transfer hearing is not designed to determine the guilt or innocence of the juvenile accused of the crime, but is, instead, a probable cause hearing to determine whether the juvenile should be transferred out of the juvenile court for criminal prosecution as an adult. Ex parte Whisenant, 466 So.2d 1006 (Ala.), on remand, Whisenant v. State, 466 So.2d 1013 (Ala.Cr.App.1985). Probable cause, in the context of a transfer hearing, is defined as that which would warrant a man of reasonable prudence and caution in believing that the offense has been committed and that the juvenile in question is the offender. Bragg v. State, 416 So.2d 715 (Ala.1982).”

Ex parte W.T.K., 586 So.2d 850, 851 (Ala.1991). “We will not interfere with the juvenile court’s order transferring a juvenile to circuit court unless that order is clearly erroneous.” M.B. v. State, 641 So.2d 330, 332 (Ala.Crim.App.1994).

The only evidence presented by the State at the transfer hearing was the testimony of Tidwell that she had learned from the Florence Police Department that the appellant had been arrested outside of Dillard’s department store for shoplifting and had been charged with theft of property in the third degree. We point out, however, that the appellant was charged in the delinquency petition with theft of property in the second degree, not theft of property in the third degree, and that the delinquency petition alleged that the appellant stole items from Parisian department store, not Dillard’s department store. Under these circumstances, we question whether Tidwell was even testifying about the incident that formed the basis for the second-degree theft charge or whether she was testifying about another incident — one unrelated to the present charge. However, even assuming that Tidwell was testifying about the present charge, the mere fact that the appellant was arrested for the crime is not sufficient to warrant a man of reasonable prudence and caution in believing that the appellant actually committed the crime. If it were, there would be no need for the probable-cause phase of the transfer hearing. Moreover, Tidwell’s testimony was entirely hearsay. Although generally in a juvenile transfer hearing “hearsay evidence is admissible to show probable cause that the accused committed the crime in question,” W.M. v. State, 607 So.2d 1303, 1304 (Ala.Crim.App.1992), hearsay evidence cannot “constitute the sole basis for a finding of probable cause to transfer the child to circuit court.” O.M. v. State, 595 So.2d 514, 518 (Ala.Crim.App.1991). See also C.E.B. v. State, 661 So.2d 786 (Ala.Crim.App.1994)(finding of probable cause in a transfer hearing cannot be based solely on hearsay testimony).

In this case, not only was the only evidence offered of probable cause hearsay, that evidence — that the appellant had been arrested for the crime — even if it was not solely hearsay, was not sufficient to establish probable cause that the appellant committed the crime. Therefore, the juvenile court erred in transferring the appellant to circuit court for prosecution as an adult. The judgment of the juvenile court is reversed and this case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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