text:
    Joseph DZWONKOWSKI, Sr. v. SONITROL OF MOBILE, INC., et al.
    2010101.
    Court of Civil Appeals of Alabama.
    Aug. 16, 2002.
    Rehearing Applications Denied Oct. 4, 2002.
    Certiorari Petitions Denied Feb. 21, 2003 Alabama Supreme Court 1020173 and 1020176.

      William W. Watts III of Hudson & Watts, L.L.P., Mobile, for appellant.
    Joseph C. Sullivan, Jr., and Brian Thomas Pugh of Hamilton, Butler, Riddick, Tarlton & Sullivan, P.C., Mobile, for appel-lees Sonitrol of Mobile, Inc., and Joseph Dzwonkowski, Jr.
    Alan C. Christian of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for appellee Robert Dzwonkowski.
   CRAWLEY, Judge.

This appeal concerns an intrafamily dispute between Joseph Dzwonkowski, Sr. (“Joe Sr.,” or “the father”), and two of his sons, Robert Dzwonkowski and Joseph Dzwonkowski, Jr. (“Joe Jr.,” or collectively “the sons”), as to the ownership and control of Sonitrol of Mobile, Inc., a closely held corporation doing business in Mobile County. The parties are shareholders and directors of Sonitrol.

The father has been president of the Sonitrol franchise in Mobile since 1977. Before 1990, all shares of the corporation were held in a voting trust controlled by the father. In 1990, nine shares of stock were issued, as follows: one share to Joe Sr.; four shares to Robert; and four shares to Joe Jr. At the same time, the parties executed a buy-sell agreement that gave the corporation or the remaining shareholders the option to purchase the shares of a shareholder whose employment with the corporation had ceased.

In 1994, Joe Jr. transferred his four shares of Sonitrol stock to Joe Sr., in exchange for his father’s paying certain debts and paying for Joe Jr.’s treatment for gambling addiction. The record contains a certificate of shares, with an issue date of February 16, 1990, endorsed by Joe Jr. and delivered to Joe Sr. on July 13, 1994. Joe Sr. never reendorsed the certificate to Joe Jr.; the certificate remained in Joe Sr.’s possession until it was admitted in evidence in the instant case. Joe Jr. alleged that his father had promised to return the four shares of stock to him once he “got his life in order.” Joe Jr. also alleged that his father’s conduct since 1994 has evinced an intent to retransfer the stock to him.

In November 1999, the father, acting as the president of Sonitrol, terminated the sons as employees of the corporation and demanded that the sons offer their shares of stock back to the corporation pursuant to the 1990 buy-sell agreement. The sons responded by calling a special meeting of the board of directors for the purpose of removing the father as president of the corporation.

On December 3, 1999, the father filed a declaratory-judgment action, seeking a determination of the ownership of stock in the corporation and a temporary restraining order (“TRO”) to prevent the sons from holding a special meeting of Soni-trol’s board of directors or from otherwise acting as directors and officers of Sonitrol. The sons counterclaimed, alleging that the father had interfered with the business operations of Sonitrol and had wrongfully diverted funds belonging to Sonitrol. They sought, among other things, a TRO to prohibit the father from acting in any representative capacity on behalf of Soni-trol.

Following a hearing, the circuit court determined, on December 13, 1999, that Sonitrol’s board of directors consisted of Joe Sr., Robert, and Joe Jr. and that the directors’ meeting called by the sons was authorized by Sonitrol’s bylaws. Immediately following that determination, a meeting of the Sonitrol board of directors took place. The sons attended the meeting; the father did not attend. By a majority vote of the directors, the father was removed as an officer, discharged from employment, and asked to surrender his stock for resale to the corporation. The following officers were then elected at the meeting: Joe Jr., president; and Robert, vice-president, secretary, and treasurer.

The court set a hearing date of March 1, 2000, to determine the ownership of four shares of stock originally issued to Joe Jr., later transferred to Joe Sr., and then claimed by Joe Jr. On January 17, 2000, however, the court notified the parties that the trial on the disputed stock-ownership issue would be heard by an advisory jury on January 19. After a two-day trial, the jury rendered an advisory verdict finding that the father owned five shares, Robert owned four shares, and Joe Jr. owned no shares.

Four days later, on January 24, the sons moved to amend their pleadings to add a defense that, they claimed, was previously unknown to them and that, they contended, entitled them to a judgment as a matter of law on the issue of the stock ownership. The trial court granted the motion to amend and, on January 26, 2000, held another hearing on the stock-ownership issue. At that hearing, the sons presented evidence, which they alleged was newly discovered, indicating that the father had previously testified, in a February 1999 deposition in connection with a Florida divorce proceeding involving the father’s second wife, that the father owned only one share of Sonitrol stock and that Robert and Joe Jr. each owned four shares of stock. The sons argued that the father was barred by the doctrine of judicial es-toppel from claiming, in an Alabama court proceeding, ownership of more than one share of Sonitrol stock when he had previously declared, in a Florida court proceeding, that he owned only one share. The trial court agreed with the sons’ estoppel argument; on February 4, 2000, the court entered an interlocutory order determining that Joe Sr. was estopped from asserting ownership of more than one share of Sonitrol stock. The court found that the ownership of the nine outstanding shares of Sonitrol stock was as follows: Joe Sr.— one share; Robert — four shares; Joe Jr.— four shares.

On September 27, 2000, Joe Sr. moved the court to reconsider its order of February 4, 2000. He alleged that his deposition testimony in the Florida divorce was not newly discovered evidence; that the deposition had been in existence at the time of the hearing before the advisory jury; that, with due diligence, the sons could have produced his deposition at the earlier hearing; and that the sons had thereby waived the defense of judicial estoppel.

On December 22, 2000, the sons moved for a partial summary judgment on the issue of the stock ownership. On February 7, 2001, the trial court entered an order denying Joe Sr.’s motion to reconsider its interlocutory order of February 4, 2000, and certified that order as one suitable for a permissive appeal to the Alabama Supreme Court pursuant to Rule 5, Ala. RApp. P. On March 5, 2001, Joe Sr. filed a notice of appeal; the appeal was dismissed as untimely on May 9, 2001.

On August 20, 2001, the trial court entered an order granting the sons’ motion for a partial summary judgment and certified that order as final pursuant to Rule 54(b), Ala. R. Civ. P. From the August 20, 2001, partial summary judgment in favor of the sons, Joe Sr. appealed to the Alabama Supreme Court. The supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

I. The Sons’ Motion to Dismiss the Father’s Appeal

The sons argue that the father’s appeal should be dismissed insofar as it raises issues that were made the basis of the interlocutory orders of February 4, 2000, and February 7, 2001. The sons maintain that the father’s failure to file a timely petition pursuant to Rule 5, Ala. R.App. P., for a permissive appeal from the interlocutory orders constitutes a waiver of the father’s right to assert that the basis for the interlocutory orders was erroneous. We disagree.

Citing Thompson Properties v. Birmingham Hide & Tallow Co., [Ms. 1000215, November 2, 2001] — So.2d - (Ala.2001), and Conseco Finance Corp. v. Sharman, 828 So.2d 890 (Ala.2001), the sons contend that the father is entitled to only “one bite at the appellate apple.” Thompson Properties and Conse- co Finance, however, are inapplicable. Those decisions hold that a party who fails to seek or to obtain permission to appeal from the denial of a summary judgment or from the denial of a motion to dismiss (both of which are interlocutory orders) may not seek review of those interlocutory orders upon a later appeal from a final judgment. Here, Joe Sr. is not seeking review of interlocutory orders; he is seeking review of a final judgment, namely: the partial summary judgment entered in favor of Robert and Joe Jr. and certified as final pursuant to Rule 54(b), Ala. R. Civ. P. This court must affirm that judgment if it can be upheld on any ground, see Ex parte Ramsay, 829 So.2d 146 (Ala.2002); Ex parte Ryals, 773 So.2d 1011 (Ala.2000); Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988), including the ground stated in the interlocutory orders of February 4, 2000, and February 7, 2001 — that principles of judicial estoppel barred Joe Sr. from claiming ownership of more than one share of stock.

Having determined that the father’s appeal is not due to be dismissed, we must now determine the propriety of the partial summary judgment. The principles of law applicable to a motion for a summary judgment are well settled. To grant the motion, the trial court must determine that the evidence does not disclose a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. If the movant makes a prima facie showing that those two conditions are satisfied, then the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); § 12-21-12(d), Ala. Code 1975. Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala. 1997). We must review the record in the light most favorable to the nonmovant and resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).

By entering the partial summary judgment, the trial court necessarily decided that there was no genuine issue of material fact regarding the stock ownership and that the sons were entitled to a judgment as a matter of law on the stock-ownership issue, i.e., that Joe Sr. owns one share, that Robert owns four shares, and that Joe Jr. owns four shares of Sonitrol stock. II. The “Transfer of Shares” Agreement

The sons contend that some time after July 13, 1994, when Joe Jr. endorsed and delivered his stock certificate to his father, Joe Sr. effectively transferred the four shares of stock back to Joe Jr. The sons argued below, and the trial court was apparently persuaded, that a document signed by the father and the sons on May 15, 1995, was “definitive as a matter of law” on the issue of stock ownership.

On May 15, 1995, the parties entered into the following “Transfer of Shares Agreement”:

“TRANSFER OF SHARES AGREEMENT
“The purpose of this agreement is to document the transfer and exchange of Capital Stock between Robert Dzwon-kowski, a resident of Fergus Falls, Minnesota and Joseph Dzwonkowski, Jr., a resident of Pensacola, Florida. The effective date of this transfer is to be May 15,1995.
“Whereas Robert Dzwonkowski works primarily in the business of Barclay International of Minnesota, Inc., and Namekagon Forest Products, Inc., both associated with the kitchen cabinet business and the hardwood industry and both are located in the upper Midwest, where Robert Dzwonkowski resides. Joseph Dzwonkowski, Jr. works primarily in the business of Sonitrol of Mobile, Inc., a burglar alarm company located on the gulf coast of Alabama and Florida where he resides, and Robert and Joseph both feel that since their primary effort is in the businesses in which they work they both desire to consolidate their ownership in those businesses and exchange shares so that Robert owns Joseph’s shares in Barclay and Namekagon and Joseph owns Robert’s shares in Sonitrol.
“It is further agreed and understood by both parties that the value they are receiving by exchanging their shares in each other’s business is fair and equitable and after the exchange each person would be in a similar financial situation as before the exchange. This being especially true now that Barclay is going to be doing the additional finishing work for Western Cabinets.
“Now it is agreed that the following is a list of stockholders in each company and percentage of ownership.
“Barclay International of Minnesota, Inc. and Namekagon Forest Products Inc.:
“Joseph Dzwonkowski, Sr. 6.7%
“Joseph Dzwonkowski, Jr. 30.15%
“Robert Dzwonkowski 30.15%
“Rone’s 33.00%
100.00%
“Sonitrol of Mobile, Inc.:
“Joseph Dzwonkowski, Sr. 10%
“Joseph Dzwonkowski, Jr. 45%
“Robert Dzwonkowski 45%
“It is further agreed that after the exchange of stock contemplated under this agreement the following will be the stockholders’ ownership in each company:
Barclay International of Minnesota, Inc. and Namekagon Forest Products, Inc.:
“Joseph Dzwonkowski, Sr. 6.7%
“Robert Dzwonkowski 60.3%
“Rone’s 33.0%
100.0%
“Sonitrol of Mobile:
' “Joseph Dzwonkowski, Sr. 10%
“Joseph Dzwonkowski, Jr. 90%
100%
“It is further understood that the Dzwonkowskis have to agree to a transfer of shares according to the restriction agreement on their shares. The signing of this transfer agreement will constitute the stockholders agreeing to the transfer.
“The exchange of shares as indicated above is hereby agreed by the parties and the stockholders.”

The transfer-of-shares agreement was signed by Joe Jr. and Robert as “Parties” and by Joe Jr., Robert, and Joe Sr. as “Stockholders.” All signatures were witnessed and dated “5/15/95.” The sons contend that the transfer-of-shares agreement is an unambiguous tripartite agreement establishing Joe Jr.’s ownership of the disputed four shares of stock as of May 15, 1995 — 10 months after Joe Jr. had transferred the shares to the father.

“The law [then] governing the transfer of title to shares of stock [was] found in Article 8 of the Uniform Commercial Code.” Andrews v. Troy Bank & Trust Co., 529 So.2d 987, 990 (Ala.1988). Section 7-8-309, Ala.Code 1975, provided:

“An indorsement of a security whether special or in blank does not constitute a transfer until delivery of the security on which it appears or if the indorsement is on a separate document until delivery of both the document and the security.”

In Andrews, the Alabama Supreme Court stated that “[i]n the usual case, actual physical possession of the security by the [transferee] is necessary to complete a transfer of ownership in the security.” 529 So.2d at 991. The court explained:

“Under § 7-8-309, a transfer of an investment security to a purchaser requires both an indorsement and a delivery of the security .... [I]t is readily apparent that an interest in a security does not pass until delivery of the security. ‘Delivery’ is defined in the Code as ‘voluntary transfer of possession,’ Section 7-1-201(14), and occurs when the purchaser (transferee) or someone on his behalf acquires actual possession of the security. Section 7-8-313(l)(a); Morris v. Kaiser, 292 Ala. 650, 299 So.2d 252 (1974).”

529 So.2d at 990.

The sons acknowledge that the father never reendorsed or physically delivered the certificate of shares to Joe Jr. Nevertheless, they contend that the transfer-of-shares agreement represents a conveyance of the shares from Joe Sr. to Joe Jr. by one of four means: contract; constructive delivery; equitable assignment; or gift.

A. Contract

Joe Sr. argues that the transfer-of-shares agreement is not a three-party contract but a two-party contract, one that documents an exchange of mutual promises between Robert and Joe Jr., with Robert promising to transfer his shares of Sonitrol to Joe Jr., and Joe Jr. promising to transfer his shares in two Minnesota corporations to Robert. Joe Sr. points out that he signed the agreement in his capacity as a “stockholder,” and not as a “party” to the promised exchange of stock between his sons; he says he signed as a stockholder only to waive the restrictions on the transfer of stock established in the 1990 Sonitrol buy-sell agreement.

We agree with Joe Sr. that the transfer-of-shares agreement is a contract only between Robert and Joe Jr. The agreement provides for an exchange of stock between the sons and states the consideration moving between Robert and Joe Jr. The agreement does not even purport to transfer stock between Joe Sr. and Joe Jr. Compare Kallop v. McAllister, 678 A.2d 526, 531 (Del.1996) (stating that “[a]n agreement ‘purporting to ... transfer shares of corporate stock’ may be sufficient in itself to complete the delivery of a gift”) (emphasis added) (quoting Equitable Trust Co. v. Gallagher, 31 Del.Ch. 88, 98, 67 A.2d 50, 54 (1949)). Joe Sr.’s interest in Sonitrol (10% or one share) is, according to the agreement, exactly the same before and after the transfer between the sons. The transfer-of-shares agreement cannot be considered a contract by Joe Sr. to transfer four shares of stock to Joe Jr. because it does not meet the basic requirements for a contract: it states no action or forbearance by Joe Sr. in return for an action or forbearance by Joe Jr. Compare § 7-8-319, Ala. Code 1975, the former “Statute of Frauds” for securities transactions, that, at the time relevant here, required, in a contract for the sale of securities, a writing “signed by the party against whom enforcement is sought ... sufficient to indicate that a contract has been made for sale of a stated quantity of described securities at a defined or stated price.” (Emphasis added.) See DeVito v. Sheeran, 165 N.J. 167, 189, 755 A.2d 1147, 1160 (2000) (holding that a memorandum referring to the allocation of stock ownership did not satisfy § 8-319 of the Uniform Commercial Code).

Although Joe Sr.’s signature on the transfer-of-shares agreement may constitute evidence of his donative intent with respect to the four disputed shares of stock, and may be used to impeach or cast doubt upon his claim that he owns more than the 10%, or one share, reflected in the agreement, it does not constitute his contractual assent to transfer four shares of stock to Joe Jr. We conclude that, to the extent that the trial court decided that the transfer-of-shares agreement settled the question of the stock ownership as a matter of contract law, it erred.

B. Constructive Delivery and Equitable Assignment

The sons are correct that Alabama law recognizes that a transfer of stock can be accomplished without physical delivery of the stock certificate, by constructive delivery, equitable assignment, or gift. See Andrews v. Troy Bank & Trust Co., supra; Johnson v. Johnson, 273 Ala. 688, 144 So.2d 12 (1962); Livingston v. Powell, 257 Ala. 38, 57 So.2d 521 (1952); Thompson v. Hudgins, 116 Ala. 93, 22 So. 632 (1897).

In Johnson, a son who did not have possession of the stock certificates at issue notified a bank that he wanted to transfer to his mother his bank stock. The son later argued that there had been no valid transfer of the stock to his mother because there had been no delivery of the stock certificates to the mother. Rejecting that argument, the supreme court stated:

“To hold in agreement with [the son’s] contention that there must have been a delivery of the stock certificate along with his assignment to his mother would be to require an act at once impossible and useless. [The son] could not deliver what he did not hold, possess, or own. He did not possess the stock.”

273 Ala. at 692,144 So.2d at 16. The court quoted the following from a Massachusetts decision:

“ Where the owner of stock, intending to make an absolute transfer, for lack of indorsement or because of some other defect in the mode of transfer, fails to transfer the legal title, it is held that by the transfer the equitable title goes over to the transferee ... even though the provisions of that act [Uniform Stock Transfer Act] relative to transfers are not complied with, and though the act purports to state the only method of transfer.’ ”

273 Ala. at 694, 144 So.2d at 18 (opinion on rehearing) (quoting Whitney v. Nolan, 296 Mass. 419, 424-25, 6 N.E.2d 386, 389 (1937)). Johnson does not compel a result in favor of Robert and Joe Jr. because, in the present case, there is no mere “defect in the mode of transfer”; instead, there is a complete absence of indorsement or delivery of the stock certifícate. Moreover, unlike Johnson, delivery of the stock cer-tifícate would not have been impossible in the present case.

In Andrews, a husband took his bank stock certificates to the bank and requested that the bank establish “joint ownership in the stock with his wife.” 529 So.2d at 988. The husband died without having delivered the certificates to the wife, and the husband’s executor argued that in the absence of delivery, there had been no transfer to the wife. The supreme court disagreed. Quoting an Idaho decision, the court stated:

“ ‘While the requirement of physical delivery contained in Article 8 [of the UCC] may serve a valid evidentiary purpose in the case of a sole owner, where, as here, there is more than one listed owner, the requirement that the new owners personally receive physical possession of the stock certificates to constitute a valid transfer is not applicable because both joint tenants cannot enjoy possession simultaneously.’ ”

529 So.2d at 991 (quoting Ogilvie v. Idaho Bank & Trust Co., 99 Idaho 361, 365, 582 P.2d 215, 219 (1978)).

Concluding that Article 8 of the Uniform Commercial Code “did not abrogate the equitable principles ... that, as between the parties, there may be a transfer of ownership of stock in a corporation where the owner presently intends to make such a transfer even though there is some technical defect in the mode of transfer,” 529 So.2d at 992, the court held that “there was, at least, a constructive delivery of the stock to [the wife],” 529 So.2d at 992, and the wife had “acquired an interest in the stock by equitable assignment,” 529 So.2d at 991.

In Andrews, the element of donative intent was undisputed and the element of delivery was only “technically” unsatisfied. Here, however, the issue of donative intent was highly disputed and delivery is completely lacking. In opposition to the sons’ motion for a summary judgment, Joe Sr. presented evidence indicating that he had not transferred, and that he did not intend to transfer, the four disputed shares of stock to Joe Jr. He submitted an affidavit in which he stated that the transfer-of-shares agreement was prepared as a potential estate-planning tool in contemplation of certain future events that never occurred and, thus, the agreement never became operative. He presented evidence indicating that he has four children — Robert and Joe Jr. by his first wife, and two other children by his second wife. He stated that two years after the transfer-of-shares agreement was signed, he, Robert, and Joe Jr. met with a lawyer to set up an estate plan that would divide the ownership of Sonitrol among all four of his children. Joe Sr. submitted a letter from the estate-planning lawyer to Joe Jr., stating that, at the time of the meeting, the parties agreed that Joe Sr. owned five shares, Robert owned four shares, and Joe Jr. owned no shares of Sonitrol stock. In addition, Joe Sr. submitted the testimony of Joe Jr., taken in a deposition on September 18-19, 2000, in which Joe Jr. admitted that he had stated to the Internal Revenue Service (“I.R.S.”), under penalty of perjury, that he owned no stock in Sonitrol in mid-1999. Finally, the trial court had before it undisputed evidence that all three parties — Joe Sr., Robert, and Joe Jr. — continued to treat Robert as the holder of four shares of Sonitrol stock even after the transfer-of-shares agreement was signed, thus supporting Joe Sr.’s argument that Robert and Joe Jr. never exchanged shares and the transfer-of-shares agreement never became operative.

C. Gift

A gift of stock “is accomplished ... [b]y actual or symbolic delivery of the subject of the. gift, with intent to give.” Thompson v. Hudgins, 116 Ala. at 106, 22 So. at 636. See also Hudgens v. Tillman, 227 Ala. 672, 151 So. 863 (1933). “A promise to make a .gift, is not a gift. It is void — not enforceable.” Thompson, 116 Ala. at 106, 22 So. at 636. One claiming to be a donee of a gift of stock must prove the elements of a gift by clear and convincing evidence. Davis v. Wachter, 224 Ala. 306, 309, 140 So. 361, 363 (1932). Assuming that the sons made a prima facie show ing as to the elements of a gift, we hold that Joe Sr. presented substantial evidence creating a genuine issue of material fact concerning whether he made a gift, promised to make a gift, or intended to make a gift of stock to Joe Jr.

D. Conclusion as to the Transfer-of-Shares Agreement

We conclude that the transfer-of-shares agreement of May 15, 1995, is not disposi-tive as to the stock ownership in Sonitrol. Even if Joe Sr.’s signature on the transfer-of-shares agreement is some evidence indicating that he recognized Joe Jr.’s ownership of 45%, or four shares, of Sonitrol stock, that evidence was contradicted by Joe Sr.’s affidavit and other materials submitted in opposition to the motion for a summary judgment. The Alabama decisions concerning transfers of stock by constructive delivery, equitable assignment, and gift do not provide a basis for holding that the transfer-of-shares agreement entitled the sons to a summary judgment. For all three exceptions to the Article 8 transfer rule, there are material questions of fact concerning donative intent that are unsuited to resolution by a summary judgment.

III. Judicial Estoppel

The trial court determined that Joe Sr. was estopped from claiming ownership of five shares of Sonitrol stock by his earlier testimony in a Florida divorce proceeding that he owned only one share of Sonitrol stock, and that his sons Robert and Joe Jr. each owned four shares. The doctrine of judicial estoppel, however, does not provide a basis for affirming the partial summary judgment in favor of the sons.

In Jinright v. Paulk, 758 So.2d 553 (Ala. 2000), the supreme court held that judicial estoppel does not always bar a plaintiff from later suing on a claim that he had not declared as a potential asset in a bankruptcy proceeding. In Jinright, the court discussed and clarified the doctrine of judicial estoppel. The court stated:

“The doctrine of judicial estoppel ‘applies to preclude a party from assuming a position in a legal proceeding inconsistent with one previously asserted. Judicial estoppel looks to the connection between the litigant and the judicial system[,] while equitable estoppel focuses on the relationship between the parties to the prior litigation.’ Selma Foundry & Supply Co. v. Peoples Bank & Trust Co., 598 So.2d 844, 846 (Ala. 1992) (quoting Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414 (3d Cir.), cert. denied, 488 U.S. 967, 109 S.Ct. 495, 102 L.Ed.2d 532 (1988)). The doctrine is applied to uphold the integrity of the judicial system. Chandler v. Samford University, 35 F.Supp.2d 861 (N.D.Ala.1999). However, this Court has recognized a number of limitations upon the rule against asserting inconsistent positions in judicial proceedings.
“ ‘ “[T]he following have been enumerated as essentials to the establishment of an estoppel under the rule that a position taken in an earlier action estops the one taking such position from assuming an inconsistent position in a later action: (1) The inconsistent position first asserted must have been successfully maintained; (2) a judgment must have been rendered; (3) the positions must be clearly inconsistent; (4) the parties and questions must be the same; (5) the party claiming estoppel must have been misled and have changed his position; and (6) it must appear unjust to one party to permit the other to change.” ’
“28 Am.Jur.2d § 70 Estoppel and Waiver (1966) (as quoted with approval in Porter v. Jolly, 564 So.2d 434, 437 (Ala.1990)). Thus, a party may not claim the benefit of the doctrine of judicial estoppel unless the party can demonstrate that the party against whom the estoppel is sought procured a judgment in its favor as a result of the inconsistent position taken in the prior proceeding. Moreover, the party claiming the estoppel must have been misled by the conduct of the party against whom the estoppel is sought, and consequently changed its position to its prejudice. Id.”

758 So.2d at 555.

Joe Jr. argues that the holding in Jin-right is limited to the situation in which a petitioner in bankruptcy omits a potential claim in his schedule of assets and then later sues on that claim. We do not read Jinright so narrowly, however, and we can find no indication that our supreme court, in outlining the elements that must be proved to establish judicial estoppel, confined its statements to the bankruptcy context.

We hold that the doctrine of judicial estoppel is inapplicable here for at least two reasons. First, Robert and Joe Jr., the parties asserting the estoppel, were not parties to the Florida divorce action. Cf. Singley v. Bentley, 782 So.2d 799 (Ala.Civ.App.2000) (holding that a farmer was not estopped to recover against a harvester for underpayment on 27,000 bushels of sweet potatoes by the farmer’s claim, in filing for federal crop-disaster benefits, that his crop had produced only 15,000 bushels; the harvester was not a party to the farmer’s application for benefits). Second, the parties claiming the estoppel did not establish that they were misled by Joe Sr.’s testimony in the Florida divorce proceedings and did not show that, as a consequence of Joe Sr.’s testimony, they changed their positions to their detriment. The material Joe Sr. submitted in opposition to the motion for a summary judgment tends to show that Joe Jr. was neither misled by nor changed his position in response to his father’s deposition testimony because, five months after the deposition, Joe Jr. informed the I.R.S. that he held no stock in Sonitrol.

Robert argues that the summary judgment can be upheld on the grounds of another judicial estoppel that was not made the basis of the trial court’s interlocutory orders of February 4, 2000 and February 7, 2001, namely that Joe Sr. was estopped from asserting his ownership of five shares of stock by his assertion in earlier proceedings before the Florida Electrical Contractors Licensing Board (“the Florida Board”) that he owned only one share of the stock.

On October 22, 1996, Sonitrol applied to the Florida Board for an electrical contractor’s license, and Joe Sr. was designated on the application as the “primary qualifier.” The application contains a sworn statement by Joe Sr. that he is the president of Sonitrol and that he owns one-ninth of the corporate stock. The application forms include a financial responsibility questionnaire inquiring whether the applicant has ever filed a voluntary or involuntary petition in bankruptcy. Joe Sr. answered that he had filed two bankruptcy petitions, both arising out of his personal guaranty of the debts of Barclay International, a Minnesota corporation of which he was the president.

The Florida Board regulations provide that it may refuse to qualify an applicant if any of its corporate officers or shareholders owning 10% or more of the corporate stock have, in the five years preceding the application, filed a petition in bankruptcy arising out of the construction operations of the applicant. On March 10, 1998, the Florida Board denied the license application on which Joe Sr. was shown as the primary qualifying agent for Sonitrol based on the Board’s concerns regarding Joe Sr.’s overdraft history at SouthTrust Bank of Mobile and his prior bankruptcies. On May 14, 1998, however, the Board issued an “Order on Reconsideration” stating that it would reopen the matter to receive further information concerning Joe Sr.’s financial status.

Robert argues that in order to become the primary qualifier Joe Sr. “had to represent that he was merely a 10% holder of the corporate stock of Sonitrol because of his bankruptcy problems.” He maintains that Joe Sr., having made such a representation, is estopped to claim that he holds more than 10% of the Sonitrol stock.

The Board’s order on reconsideration states that Joe Sr. appeared before the Board to discuss his financial difficulties. The order concludes that both of his personal bankruptcies arose out of the same business transaction with Barclay International, a company not engaged in electrical contracting work. The order recites that the Board had requested information from SouthTrust Bank of Mobile regarding Joe Sr.’s “overdraft situation” and that “upon receipt and review of a satisfactory explanation from SouthTrust Bank ... the Board will approve the application [of Joe Sr.] as primary qualifier.”

We assume that judicial estoppel applies to quasi-judicial proceedings before administrative agencies like the Florida Board. See Consolidated Stores, Inc. v. Gargis, 686 So.2d 268 (Ala.Civ.App.1996), overruled on other grounds, Bleier v. Wellington Sears Co., 757 So.2d 1163 (Ala.2000); Singley v. Bentley, supra. Nevertheless, we conclude that all the elements for applying judicial estoppel are not met by the circumstances of the Florida Board proceedings.

First, there is no indication that the inconsistent position asserted by Joe Sr.— that he held one-ninth of the Sonitrol stock — was “successfully maintained” before the Florida Board. In other words, the Board agreed to reconsider Sonitrol’s application for a license with Joe Sr. as the primary qualifier because it was satisfied that Joe Sr.’s prior bankruptcies involved a business that was not engaged in electrical contracting work, not because it was satisfied that Joe Sr. owned only one-ninth of the stock of Sonitrol.

Second, the record contains no “judgment rendered” by the Board. The May 14 order on reconsideration simply holds the application in abeyance pending receipt of further information from SouthTrust Bank of Mobile. All of the elements necessary to apply the doctrine of judicial estoppel are not present; therefore, Joe Sr.’s representations to the Florida Board do not estop him from claiming, in the present case, that he owns more than a one-ninth interest in Sonitrol. We hold that the summary judgment for Robert and Joe Jr. cannot be upheld based on the doctrine of judicial estoppel.

The judgment of the circuit court is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

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

      . A petition for permission to appeal pursuant to Rule 5(a), Ala. R.App. P., must be filed within 14 days of the trial court’s certification, see Rule 5(a)(2), Ala. R.App. P.

      . The November 2, 2001, opinion was withdrawn and another opinion substituted in Thompson Properties v. Birmingham Hide & Tallow Co., 839 So.2d 629 (Ala.2002).

      . Article 8 as it read at the times at issue in this case was repealed by Act No. 96-742, Ala. Acts 1996, and a new Article 8 was enacted. The Code sections that are quoted here are from Article 8 as it read before January 1, 1997, the effective date of Act No. 96-742. Some of these Code sections have been replaced by other Code sections and some were repealed in their entirety and no longer have a corresponding section in Article 8.

      . Section 7-8-113, Ala.Code 1975, proposed by Act No. 96-742 and effective January 1, 1997, provides:
      "A contract or modification of a contract for the sale or purchase of a security is enforceable whether or not there is a writing signed or record authenticated by a party against whom enforcement is sought, even if the contract or modification is not capable of performance within one year of its making.”

        But see § 8 — 9—2(8), Ala.Code 1975, also proposed by Act No. 96-742 and effective January 1, 1997 (making “every agreement for the sale or purchase of securities other than through the facilities of a national stock exchange or of the over-the-counter securities market” subject to the Alabama general Statute of Frauds).


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Patricia Ann MYERS, as executrix of the estate of Jessie Logan Horton v. Sammy Joe COLLINS.
    2010472.
    Court of Civil Appeals of Alabama.
    Aug. 16, 2002.
    Rehearing Denied Sept. 27, 2002.
    Certiorari Denied Feb. 21, 2003 Alabama Supreme Court 1020141.
    John A. Daugherty and Cheryl A. Daugherty of Daugherty & Daugherty, Vestavia Hills, for appellant.
    Daniel P. Avery of Porterfield, Harper & Mills, P.A., Birmingham, for appellee.
   PITTMAN, Judge.

Patricia Ann Myers, as executrix of the estate of Jessie Logan Horton, appeals the dismissal by the Chilton Circuit Court of Horton’s appeal to that court of the Chil-ton County Probate Court’s order awarding Sammy Joe Collins a fee for acting as a personal representative. Bertie Logan died owning $306,000 of real property and an undisclosed amount of personal property. Horton and Collins were two of Logan’s heirs. On July 2, 1999, the probate court, in response to a petition for final settlement of Logan’s estate, issued an order awarding Collins $35,637.71 as a fee for acting as personal representative of Logan’s estate.

On February 17, 2000, the probate court issued an order denying Horton’s motion to alter, amend or vacate a judgment, even though the record on appeal contains no mention of a postjudgment motion having been filed. Collins admits in his appellate brief that Horton filed a Rule 60(b), Ala. R. Civ. P., postjudgment motion on October 27,1999 (C. 10.), and that following the denial of that motion on November 5,1999, Horton filed a Rule 59, Ala. R. Civ. P., postjudgment motion, which was the subject of the February 17, 2000, probate court order.

The record reflects that Horton appealed the probate court’s judgment to the circuit court on March 23, 2000. On April 12, 2000, the circuit court accepted jurisdiction over the matter, pursuant to § 12-22-20 and § 12-22-21, Ala.Code 1975. On April 14, 2000, the estate of Jessie Logan Horton filed a notice of Horton’s death. (C. 12.) In September 2000, Patricia Ann Myers, executrix of Horton’s estate, filed a request to be substituted as the plaintiff in this action. The circuit court set the cause for trial on August 20, 2001.

Collins filed a motion in circuit court to dismiss the appeal for lack of jurisdiction on July 23, 2001. After receiving briefs from the parties, the circuit court held oral argument on the matter on December 12, 2001. On December 17, 2001, the circuit court dismissed the appeal. On January 28, 2002, Myers appealed to the Alabama Supreme Court; that court transferred the case to this court, pursuant to § 12-2-7(6), Ala.Code 1975. Myers argues only one issue on appeal: that the fee the probate court ordered for the personal representative is statutorily impermissible and excessive.

The record is clear that the probate court entered its final order regarding the Logan estate on July 2, 1999. A notice of appeal must be filed with the clerk of the court within 42 days from the date of the entry of judgment. See Rule 4(a)(1), Ala. R.App. P. In the alternative Horton could have filed a Rule 59 motion (or a Rule 50, 52, or 55 motion) within 30 days, and this would toll the running of time to file an appeal. Horton did neither.

Neither party disputes the fact that the first postjudgment motion filed by Horton was a motion pursuant to Rule 60(b), that was filed on October 27, 1999, and was 117 days after entry of the probate court’s order. A Rule 60(b) motion is not one of the enumerated postjudgment motions that tolls the time for filing an appeal under Rule 4, Ala. R.App. P. Pursuant to Rule 2(a)(1), Ala. R.App. P., “[a]n appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate, court.” See also Paris v. Estate of Williams, 769 So.2d 321, 323 (Ala.Civ.App.2000).

APPEAL DISMISSED.

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

THOMPSON, J., concurs in the result.


author: THOMPSON, Judge.

text:
    Richard WINECOFF and Sandy Winecoff v. COMPASS BANK.
    2011156.
    Court of Civil Appeals of Alabama.
    Jan. 10, 2003.

      J. Wilson Mitchell of Mitchell, Bernauer & Winborn, Florence, for appellants.
    J. Michael Tanner of Ashe, Tanner & Wright, P.C., Tuscumbia, for appellee.
   THOMPSON, Judge.

Richard Winecoff and Sandy Winecoff sued Compass Bank. Compass Bank answered and counterclaimed. Compass Bank moved for a summary judgment on the Winecoffs’ claims against it. The Wi-necoffs opposed that motion. On June 20, 2002, the trial court entered a summary judgment on the Winecoffs’ claims. In its June 20, 2002, order, the trial court noted that Compass Bank’s counterclaim against the Winecoffs was still pending, and it purported to certify, pursuant to Rule 54(b), Ala. R. Civ. P., the order as final. The Winecoffs appealed.

The record indicates that the Winecoffs had a joint checking account at Compass Bank. On May 1, 2001, Sandy Winecoff redeemed two United States Savings Bonds at Compass Bank. Compass Bank later determined that it had paid Sandy Winecoff $2,425.60 in excess of the amount actually due on those savings bonds. Therefore, Compass Bank “set off,” or deducted, $1,272.59 from the Winecoffs’ joint checking account as a partial repayment of the amount it had allegedly overpaid. Compass Bank contended that the terms of the account agreement between it and the Winecoffs allowed it to effect that set-off. The Winecoffs argued that the setoff was not authorized by the account agreement or by applicable caselaw. The Wine-coffs claimed that the allegedly improper setoff caused checks written on their joint checking account, which they believed had funds sufficient to cover those checks, to be returned to Compass Bank for insufficient funds.

In their complaint against Compass Bank, the Winecoffs alleged conversion, breach of contract, breach of fiduciary duty, defamation, suppression, negligence and wantonness, wrongful seizure of funds, and the tort of outrage. The Winecoffs’ claims were based on their allegation that they had been injured by Compass Bank’s allegedly improper setoff of the $1,272.59 from their joint checking account. In its counterclaim, Compass Bank sought to recover the remaining $1,153.01 it claimed it had overpaid Sandy Winecoff when she redeemed the savings bonds.

In its motion for a summary judgment on the Winecoffs’ claims, Compass Bank argued only that it had the authority, under both its agreement with the Winecoffs and applicable caselaw, to set off the Wine-coffs’ joint account for the amount it claimed it had overpaid with regard to the savings bonds. The Winecoffs opposed that motion, arguing a lack of mutuality in their joint-checking-account agreement with Compass Bank.

We conclude, however, that the June 20, 2002, partial summary judgment was not appropriate for certification under Rule 54(b). “ ‘Appellate review in a piecemeal fashion is not favored.’ ” Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala.Civ.App.1999) (quoting Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala.Civ.App.1996)). An order should be certified final pursuant to Rule 54(b) only in an exceptional case; a Rule 54(b) certification should not be entered routinely. Moss v. Williams, 747 So.2d 905, 907 (Ala.Civ.App.1999). See also Parrish v. Blazer Fin. Servs., Inc., 682 So.2d 1383 (Ala.Civ.App.1996). In considering whether an order was properly certified as final pursuant to Rule 54(b) in a case involving a claim and a counterclaim, our supreme court stated:

“Rule 54(b) is properly applied in a situation where the claim and the counterclaim present more than one claim for relief, either of which could have been separately enforced. Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975). Under ‘appropriate facts,’ a partial summary judgment on an original claim may be finally adjudicated pursuant to Rule 54(b), leaving a counterclaim undecided so that the parties can further litigate the issues presented by the counterclaim. Pate v. Merchants National Bank of Mobile, 409 So.2d 797, 798 (Ala.1982). In Pate, a bank filed suit against a promissor and individual guarantors following default on a promissory note. After the bank filed a motion for a summary judgment, the defendants filed an amended answer to the bank’s complaint, including a counterclaim by one of the defendants. The counterclaim alleged that the bank had wrongfully converted funds deposited in that defendant’s checking account. The Pate Court affirmed the trial court’s entry of final judgment pursuant to Rule 54(b) in favor of the bank on its motion for summary judgment, leaving the counterclaim undecided and subject to further litigation. [The Pate Court found] that the bank’s claim on the note established one claim and that the defendant’s counterclaim for conversion of checking account funds formed a separate claim

Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987).

In Branch v. SouthTrust Bank of Do-than, N.A., supra, SouthTrust sued Branch seeking to recover on a promissory note. Branch counterclaimed, alleging fraudulent misrepresentation related to his execution of that promissory note. The trial court entered a partial summary judgment in favor of SouthTrust and purported to certify its judgment as final pursuant to Rule 54(b). Our supreme court set aside the Rule 54(b) certification, concluding:

“The counterclaim asserted by Branch is based upon an alleged fraudulent representation by an agent of SouthTrust upon which Branch claims he relied in executing the promissory note. It therefore appears that the issues in the two claims in this case are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.... [I]n the interest of justice, the claims should not be adjudicated separately.”

514 So.2d at 1374.

In this case, the Winecoffs based the claims in their complaint on their contention that Compass Bank did not have the authority to set off their account for a portion of an amount it contended it had overpaid the Winecoffs. Compass Bank counterclaimed, essentially contending that the setoff was proper and seeking the payment of the remainder of the amount of the alleged overpayment to Sandy Wine-coff on her redemption of the savings bonds. Thus, the Winecoffs’ claims and Compass Bank’s counterclaim are not based on separate facts or theories of recovery, as were the claim and the counterclaim in Pate, supra. Rather, the claims and the counterclaim each rested on the issue whether Compass Bank could validly effect a setoff against the Winecoffs’ joint checking account. Compass Bank’s counterclaim, which remains pending in the trial court, is related to the Winecoffs’ claims resolved by the partial summary judgment; however, there has been no determination of that counterclaim. We conclude that the Winecoffs’ claims and Compass Bank’s counterclaim are “so closely intertwined” as to create a “unreasonable risk of inconsistent results” if the claims are adjudicated separately. See Branch v. SouthTrust Bank of Dothan, N.A., supra. See also Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88 (Ala.2002) (dismissing an appeal from an order that the court determined was not appropriate for Rule 54(b) certification because the claims and counterclaims involved were so intertwined as to create a risk of inconsistent results if adjudicated separately). The trial court erred in certifying its partial summary judgment as final pursuant to Rule 54(b), Ala. R. Civ. P.; that certification must be set aside. The appeal is taken from a nonfinal partial summary judgment, and it must be dismissed for want of jurisdiction. See Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., supra; Moss v. Williams, supra; Harper Sales Co. v. Brown, Stagner, Richardson, Inc., supra; Parrish v. Blazer Fin. Servs., Inc., supra.

APPEAL DISMISSED.

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


author: PER CURIAM. PER CURIAM.

text:
    Ex parte SUMMIT MEDICAL CENTER OF MONTGOMERY, INC., an Alabama corporation d/b/a Beacon’s Women’s Center. (In re State of Alabama v. Bernetta L. Willis).
    CR-01-2300.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 2002.
    Opinion Issuing Writ of Mandamus on Return to Remand Jan. 7, 2003.

      Stephen R. Glassroth, Montgomery, for petitioner.
    C. Franklin Snowden III, Montgomery, for respondent.
   PER CURIAM.

The petitioner, Summit Medical Center of Montgomery, Inc., d/b/a Beacon’s Women’s Center (hereinafter referred to as “Beacon’s”), filed this petition for a writ of mandamus directing Judge Charles Price to quash a subpoena duces tecum directed to Beacon’s. The subpoena was issued as a result of criminal charges filed against Bernetta L. Willis; Willis was charged with theft of property in the second degree for allegedly stealing the contents of a handbag that was in a bathroom at Beacon’s clinic on March 27, 2001. Before trial, Willis moved for a subpoena duces tecum to be issued to Beacon’s requesting the names of all individuals who were in the building on March 27, 2001, between the hours of 4 p.m. and 6:30 p.m., the period during which the contents of the handbag were stolen. The subpoena also requested a complete list of all receipts for moneys paid to Beacon’s by Willis and her codefendant on March 27, 2001. Beacon’s failed to deliver the requested materials; Willis filed a motion to compel. Beacon’s then filed a motion to quash the subpoena. After a hearing on the motions, Judge Price modified the subpoena as to the production of the receipts, but he denied the motion to quash. Beacon’s then filed this petition for a writ of mandamus. Willis’s trial was scheduled for August 21, 2002. We stayed all action in the circuit court pending the resolution of this mandamus petition.

Initially, we must determine if a mandamus petition is the appropriate method by which to obtain review of Judge Price’s ruling denying the motion to quash the subpoena duces tecum. Although Beacon’s is not a party to the criminal action against Willis, a mandamus petition may be used to review rulings on motions to quash subpoenas from parties and nonparties. In Ex parte Thackston, 275 Ala. 424, 426, 155 So.2d 526 (1963), the Alabama Supreme Court stated, “[t]his court has reviewed the issuance of a subpoena duces tecum, both as to parties and nonparties, or witnesses, on a petition for mandamus.” See also State v. Reynolds, 819 So.2d 72 (Ala.Crim.App.1999).

Beacon’s argues that Judge Price erred in denying the motion to quash the subpoena duces tecum because, it says, the subpoena was being used for discovery purposes — a purpose prohibited by law. It further argues that the subpoena should be quashed pursuant to Rule 17.3(c), Ala. R.Crim.P.„ because, it argues, compliance with the subpoena would be “unreasonable, oppressive, or unlawful.”

Willis responds that she has complied with all of the prerequisites of United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); therefore, she argues, she is entitled to the requested documents. Willis further asserts that the trial court failed to make findings of facts concerning the four factors used in Nixon to determine whether the requested documents should be produced; and she argues that we should direct the trial court to comply with our holding in Reynolds, supra, requiring the trial court to address the Nixon factors.

This ease is similar to Reynolds. In Reynolds, the State filed a petition for a writ of mandamus directing the trial court to quash the subpoena duces tecum issued to the Green Bottle Grill restaurant. The accused, Jacqueline Reynolds, had been employed at the Green Bottle Grill as a bookkeeper. Reynolds was accused of stealing approximately $12,000 from the Green Bottle Grill. Reynolds served a subpoena duces tecum on the Green Bottle Grill, seeking numerous records and financial documents that were created before Reynolds’s employment with the company. We wrote:

“The view adopted by the Alabama Supreme Court in Rule 17.3(d), [Ala. R.Crim.P.] was previously expressed by the United States Supreme Court in United States v. Nixon, 418 U.S. 683, 698-700, 94 SiCt. 3090, 41 L.Ed.2d 1039 (1974). In Nixon, the United States Supreme Court stated:
“ ‘A subpoena for documents may be quashed if their production would be “unreasonable or oppressive,” but not otherwise. The leading case in this Court interpreting this standard is Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879 (1951). This case recognized certain fundamental characteristics of the subpoena duces tecum in criminal cases: (1) it was not intended to provide a means of discovery for criminal cases, id., at 220; (2) its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials; ibid. As both parties agree, cases decided in the wake of Bowman have generally followed Judge Weinfeld’s formulation in United States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y.1952), as to the required showing. Under this test, in order to require production prior to trial, the moving party must show: (1) that the documents are evi-dentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general “fishing expedition.” ’
“(Footnotes omitted; emphasis added.) This Court has embraced the standard of review set out in United States v. Nixon. See Sale [v. State, 570 So.2d 862 (Ala.Crim.App.1990) ], and Williams v. State, 489 So.2d 4 (Ala.Cr.App.1986).
“Our analysis of the validity of Judge Williams’s ruling is hampered by the fact that he failed to make findings of fact as to the four factors set out in United States v. Nixon.”

819 So.2d at 75-76. In Reynolds, we ordered the circuit court to make specific findings concerning the four factors articulated by the United States Supreme Court in United States v. Nixon.

In compliance with our holding in Reynolds, we direct the Circuit Court of Montgomery County to address the four factors in United States v. Nixon. Specifically, the court is directed to address (1) whether the documents requested by Willis are evidentiary and relevant; (2) whether they are not otherwise procurable reasonably in advance of trial by the exercise of due diligence; (3) whether Willis can prepare for trial without the production and inspection of the requested documents in advance of trial and whether the failure to inspect the documents may tend unreasonably to delay the trial; and (4) whether the application for the subpoena was made in good faith and not as a general “fishing expedition.” See United States v. Nixon. The trial court is directed to file its findings with this Court no later than 42 days from the date of this opinion.

ORDER ISSUED.

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

On Return

PER CURIAM.

The petitioner, Summit Medical Center of Montgomery, Inc., d/b/a Beacon’s Women’s Center (hereinafter referred to as “Beacon’s”), filed a petition for a writ of mandamus directing Judge Charles Price to quash the subpoena duces tecum issued to Beacon’s. We directed the trial court to make written findings of fact consistent with the United States Supreme Court’s holding in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). See Ex parte Summit Med. Ctr. of Montgomery, Inc., 854 So.2d 614 (Ala. Crim.App.2002). Specifically, we directed the trial court to make findings addressing the four prongs in Nixon, i.e., (1) whether the documents requested by Willis are evi-dentiary and relevant; (2) whether they are not otherwise procurable reasonably in advance of trial by the exercise of due diligence; (3) whether Willis can prepare for trial without inspecting the requested documents in advance of trial and whether the 'failure to inspect the documents may tend unreasonably to delay the trial; and (4) whether the application for the subpoena was made in good faith and not as a general “fishing expedition.”

The trial court has filed its findings with this Court. Those findings state as follows:

“First, this is a criminal case; Bernet-ta L. Willis is charged and indicted for the offense of Theft of Property in the Second Degree. One indicted has a fundamental right to search for witnesses that may aid in his/her defense. Thus, this Court finds that: (1) the information requested by the defendant and, as modified, granted by the Court is evi-dentiary and relevant; (2) the information cannot be procured by the defendant in advance of trial from any other source by exercise of due diligence; (3) the defendant cannot fairly or justly prepare for trial without the information ordered by the Court; and (4) the application for the subpoena was made in good faith and not as a general ‘fishing expedition.’ United States v. Nixon, 418 U.S. 683 (1974).”

During the hearing on the motion to quash the subpoena duces tecum the following occurred:

“[Willis’s counsel]: Summit obviously is not going to volunteer information to me. This is the only way I can get a list of the people who were there, so I can at least ask them if they did see anything. If they didn’t, that’s fine. I’m not bothering them....
“[Beacon’s counsel]: Your Honor, this is precisely the kind of material that the Court of Criminal Appeals has said is a fishing expedition. If it were evidence that was known to be exculpatory, that’s one thing. But his is simply the—
“The Court: Well, he’s just trying to find some witnesses to see whether anybody saw anything.”

(Transcript of motion hearing, pp. 5-6.)

The United States Supreme Court in United States v. Nixon stated that the primary purpose of the subpoena duces tecum was to “expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials.” 418 U.S. at 698-99, 94 S.Ct. 3090 (footnote omitted). The United States Supreme Court also stressed that a subpoena duces tecum was for the production of evidence not for informational discovery.

As the Oregon Court of Appeals stated in State v. Cartwright, 173 Or.App. 59, 67, 20 P.3d 223, 229 (2001), concerning the purpose of a subpoena:

“[A] subpoena compels the production of evidence. It is not a means of informational discovery, nor does it serve as an investigatory tool to enable a party to examine information or to interview a witness prior to trial to ascertain the existence of relevant evidence or testimony.”
This case' is virtually identical to the case of State v. Reynolds, 819 So.2d 72 (Ala.Crim.App.1999). As we did in Reynolds, we confine our decision to the fourth prong in United States v. Nixon. In Reynolds, 819 So.2d at 78 (opinion on return to remand), quoting People v. Morrison, 148 Misc.2d 61, 66-67, 559 N.Y.S.2d 1013, 1017-18 (City Crim.Ct.1990), we stated:
“ ‘A fundamental distinction exists between a defendant’s right to discovery ... and a defendant’s right to compel the production of evidence by subpoena ... The right to discovery is the right to receive information and documents from the prosecution and its agents concerning’ the case.' A. defendant’s right to discovery is governed and limited by statute [in Alabama, by rule].... The specific material that is required to be disclosed is specified in the statute and the timing of its disclosure is, likewise, governed by statute.
“ ‘The right to compulsory process, on the other hand, is the right to compel witnesses to come into court pursuant to subpoena and give testimony or produce documentary or other physical evidence. The right to compulsory process has its roots in constitutional principles which recognize that a defendant must be able to compel the production of evidence in the proceedings relating to the case in order to present a defense to the charges if he or she chooses to do so. However, based on constitutional analysis set forth above and decisional law, the right to compulsory process is not an unlimited and unrestricted right to compel the production of any documents sought by a defendant. Rather, it is a restricted right, the exercise of which must satisfy certain relevancy and evi-dentiary standards and which is subject to other procedures for obtaining the material sought.
“ ‘... The right to compel material pursuant to subpoena is, therefore, limited to the compulsion of “evidence” and is not a right to compel the production of documents that refer to evidence or that provide leads that unll assist in the identification of evidence or to ascertain the existence of witnesses or evidence.’”

(Emphasis added.)

It appears from the comments made by Willis’s attorney at the motion hearing that the sole purpose of the subpoena was to go on a “fishing expedition” to see if he could find any witness to what transpired at the clinic on the day of the theft. The trial court should have quashed the subpoena because Willis failed to satisfy the prerequisites of United States v. Nixon.

In issuing this writ and directing the trial court to quash the subpoena, we remind the State that it has a continuing obligation to disclose exculpatory information to Willis. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

For the foregoing reasons, this petition is due to be, and is hereby, granted.

PETITION GRANTED.

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

      . At the hearing, Willis stated that the State had disclosed the names of two people who were present at the clinic at the time of the theft.


author: PATTERSON, Retired Appellate Judge.

text:
    Sandy Lewis WHITSON v. STATE.
    CR-00-2176.
    Court of Criminal Appeals of Alabama.
    Jan. 7, 2003.

      Donald W. Lambert, Vernon, for appellant.
    William H. Pryor, Jr., atty. gen., and Joseph G.L. Marston III, asst. atty. gen., for appellee.
   PATTERSON, Retired Appellate Judge.

The appellant, Sandy Lewis Whitson, appeals his conviction for first-degree robbery and his sentence of life imprisonment.

The issues Whitson asserts on appeal can be understood only after a review of the unusual procedural history of this case. After three days of trial proceedings, a jury returned a guilty verdict against Whitson, on May 23, 2001, for first-degree robbery, and the trial court accepted that verdict. Pursuant to that verdict and because Whitson had four prior non-Class-A felony convictions, Whitson was subject to an enhanced sentence of “imprisonment for life or life without the possibility of parole, in the discretion of the trial court.” § 13A-5-9(c)(3), Ala.Code 1975. However, on the date set for sentencing, June 25, 2001, after the trial court noted that it had not yet adjudged Whitson guilty of first-degree robbery pursuant to the jury’s verdict and had not yet sentenced Whitson, Whitson confirmed to the court that he wished to withdraw his plea of “not guilty” to first-degree robbery and plead guilty to that same offense. In exchange, the State would recommend that Whitson be sentenced, as an habitual offender, to life imprisonment rather than life imprisonment without parole. The court granted Whit-son’s request. After accepting Whitson’s plea to the same offense the jury had already found him guilty of, the trial court sentenced Whitson to life imprisonment. The court further ordered that Whitson pay restitution in the amount of $1,053.35.

Thereafter, Whitson filed a motion for a new trial, in which he raised issues arising from the jury trial. He contends, on appeal, that the trial court erroneously refused, in the hearing on his motion for a new trial, to allow defense counsel to present any evidence of alleged errors in his jury trial on the charge to which he eventually pleaded guilty and that the trial court erroneously denied his motion for a new trial. In his post-guilty-plea motion, he was not seeking a withdrawal of his guilty plea. Rather, “what [he] was requesting was review and preservation of errors for appeal.” (Whitson’s brief, p. 9.)

Whitson points out that, during the guilty-plea proceeding, the trial court stated that Whitson was not waiving his right to a jury trial because he had already had a trial. From this statement, he argues, “[a]n appellant could reasonably conclude that not having waived a jury trial, he could move for a new trial and preserve error for appeal from that trial.” (Whit-son’s brief, p. 8.) He reasons that because he had a jury trial before he pleaded guilty, he did not waive his right to a jury trial and, not having waived that right, he could raise error from that jury trial in a motion for a new trial and on appeal.

In his argument, Whitson acknowledges the general rule that a guilty plea waives all nonjurisdietional defects occurring before the plea is entered. See, e.g., Prim, v. State, 616 So.2d 381 (Ala.Crim.App.1993). He contends, however, that the facts here — that he entered a guilty plea after a jury had returned a verdict — remove this case from the ambit of the general rule. In addition to pointing out that the Alabama Rules of Criminal Procedure do not provide for the acceptance of a guilty plea after a jury verdict, he argues that public policy dictates that the waiver doctrine not apply here. He explains, as follows:

“[T]he plea, according [to] the testimony of [Whitson’s trial counsel] ..., was demanded for the sole purpose of limiting the defendant’s rights on appeal. And, indeed, there could logically be no other reason for a plea after a jury verdict. ... To allow prosecutors to cleanse the trial record of error by demanding pleas after a jury verdict takes the rule regarding waiver of defects by a plea of guilty to a new and dangerous place. If this practice is allowed by this Court and is adopted by prosecutors, this Court will be limiting its right to review error of the lower courts.”

He also argues that the trial court, by denying Whitson the opportunity to put forth any evidence of error that allegedly occurred at trial, denied him the opportunity to present jurisdictional issues on appeal.

Before we can address these specific claims, we must first determine if the trial court had the authority to allow Whitson to plead guilty after the jury had returned a guilty verdict. We begin with the following Committee Comments to Rule 14.4, Ala. R.Crim. P.:

“[I]f trial has commenced before a jury, the parties may reach a plea agreement at any time prior to return of a verdict by the jury. If such an agreement is reached and approved by the court, the court may tentatively permit a withdrawal of the plea of not guilty and may proceed to accept defendant’s plea under Rule 14.4, outside the presence of the jury. Once accepted by the court, the jury may be discharged without necessity for submission of the agreement to the jury.”

(Emphasis added.) See also 1 Hugh Maddox, Alabama Rules of Criminal Procedure § 14.4, p. 481 (3d ed.1999) (“parties may make a plea agreement during the trial, and even after the case is submitted to the jury and before the jury has reached a verdict”). Cf. Rule 18.1(b)(4) (“If trial has commenced before a jury on a plea of not guilty, the defendant may withdraw the plea of not guilty and enter a plea of guilty, in which event the court shall proceed as provided in Rule 14.4, and it shall not be necessary that the plea or sentence be presented to, consented to, or approved by the jury, except in capital cases.”). Thus, the trial court cannot accept a guilty plea as long as the jury verdict stands.

That brings us to consideration of whether, before accepting Whitson’s guilty plea, the trial court implicitly, sua sponte, invalidated the jury’s verdict finding Whit-son guilty of first-degree robbery. Rule 24.1(c)(1) and (2) recognize that the trial court, on its own motion, may order a new trial “[flor the reason that the verdict is contrary to law or to the weight of the evidence; or ... [i]f for any other reason the defendant has not received a fair and impartial trial.” “Motions for new trial are not favored by the courts, are viewed with great caution, and are not to be granted lightly.” 23A C.J.S. Criminal Law § 1423, p. 365 (1989) (footnotes omitted). The trial court gave not even an innuendo as to the reason it rejected the jury’s verdict.

However, even more glaring a disregard for mandated procedure would be the trial court’s failure to follow the restriction in Rule 24.1(a) that the trial court may not order a new trial until “the defendant has been sentenced.” “ ‘Sentence’ means the pronouncement by the court of the penalty imposed upon the defendant after a judgment of guilty.” Rule 26.1(a)(2). “ ‘Judgment’ means the adjudication of the court based upon a plea of guilty by the defendant, upon the verdict of the jury, or upon its own finding following a nonjury trial, that the defendant is guilty or not guilty.” Rule 26.1(a)(1).

Therefore, assuming arguendo that the trial court implicitly, sua sponte, ordered a new trial, it did not follow the requirements of Rule 24.1, and its disregard for the jury’s verdict was not authorized. See 23A C.J.S. Criminal Law at § 1423, p. 365 (“Rules of criminal procedure relating to motions for new trial are mandatory and must be obeyed by the courts as well as by the parties.” (Footnote omitted.)). We further find that the trial court did not comply with the requirements of Rule 24.2(a), which provides for a motion for arrest of judgment “if the charging instrument does not charge an offense, or if the court was without jurisdiction of the offense charged.” The court may arrest judgment only within 30 days after sentence is pronounced. Again, the trial court’s disregard for the jury’s verdict would not have been authorized.

We know of no statute, rule of criminal procedure, or caselaw that allows the entry of a guilty plea after a jury verdict to effectively set aside the jury verdict and, for all practical purposes, nullify the guilt-phase proceeding before the jury. We have found no authority giving the trial court such unrestrained discretion. Compare State v. Ciarcia, 21 Ohio App.3d 107, 109, 487 N.E.2d 332, 333 (1984) (where a criminal rule provided that, in the event no procedure was specifically prescribed by rule, the trial court should look to the rules of civil procedure and to applicable law and where a civil rule provided that the court could relieve a party from final judgment for any reason justifying relief from the judgment, the trial court properly exercised its discretion in granting a motion for a new trial after a jury verdict, and accepting a plea of guilty to a lesser offense as part of a plea agreement under which the defendant was to provide information about other crimes and to testify truthfully relating to the murder with which he was charged; the court found that “[s]uch agreements further the ends of justice, are a benefit to society and, therefore, are viewed with favor by the courts”).

Here, the trial court acted without the authority of the law. Therefore, we must reverse the trial court’s judgment finding Whitson guilty pursuant to his guilty plea. Accordingly, the jury’s verdict remains a valid and legal verdict.

‘When a defendant has been tried by a jury, the court’s judgment must be based on the jury’s verdict. Marable v. State, 229 Ala. 435, [437,] 157 So. 861[, 862] (1934) [ (‘The judgment and sentence of the court must be based on, and correspond to, a valid and legal verdict.’) ]; Stephens v. State, 22 Ala.App. 533, 118 So. 231, cert. denied, 218 Ala. 168, 118 So. 232 (1928) [ (judgment must be reversed if the judgment and sentence are not responsive to and in accord with the verdict of the jury) ].”

Committee Comments to Rule 26.1 (bracketed material added). See also Sexton v. State, 23 Ala.App. 318, 127 So. 497 (1929).

We remand this case for the trial court to follow the mandates of Rule 26.2(b):

“(1) Upon a determination of guilt[, in this case, the verdict of guilty by the jury»] judgment ... shall be pronounced and entered together with the sentence. Pronouncement of judgment may be delayed if necessary until such time as sentence can be pronounced.
“(2) Upon a determination of guilt for any felony offense, the court shall, after receipt of the presentence report, unless a presentence report is not required, conduct a sentence hearing and pronounce sentence, or shall set a date for sentence hearing and pronouncement of sentence.”

In conclusion, we remind the bench and bar of the “[pjurpose, objectives, and construction” of the Alabama Rules of Criminal Procedure, as stated in Rule 1.2:

“These rules are intended to provide for the just and speedy determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unnecessary delay and expense, and to protect the rights of the individual while preserving the public welfare.”

Allowing such a disregard for our procedural rules as exemplified here would render totally ineffective the objectives set out above. In fact, it would wreak havoc. For example, in State v. Benoit, 492 So.2d 60 (La.Ct.App.1986), after the jury entered a verdict finding Benoit guilty, the trial court granted Benoit’s motion for a new trial so that a plea agreement could be implemented. However, during the guilty-plea proceeding, Benoit refused to acknowledge his guilt. The trial court did not accept his plea and sentenced him pursuant to the jury’s verdict. The appellate court held that the sentence was void and remanded the case for a new trial, stating, “Since the jury verdict was set aside by the now final order granting the new trial, the trial court was without authority to impose a sentence. La. C. Cr. P. art. 857. To be valid, a sentence must rest upon a valid and sufficient verdict or plea of guilty.” Id. at 61.

Even more illustrative of the quagmire that can result from a disregard for procedural rules is State v. Kelly, (No. 55905)(Ohio Ct.App., Nov. 2, 1989)(unpub-lished), the facts of which are remarkably similar to those of Whitson’s case. In Kelly, after a jury had entered a verdict finding Kelly guilty of murder, the trial court accepted Kelly’s guilty plea to voluntary manslaughter entered pursuant to a plea agreement. On appeal, Kelly raised issues relating to his murder trial without directly challenging his conviction for manslaughter pursuant to his guilty plea, and the prosecution contended that Kelly’s plea effectively waived all claims pertaining to his trial and that only the appeal from his guilty plea and conviction was before the appellate court. That court vacated Kelly’s guilty plea, reversing his conviction, remanded for sentencing on the jury verdict, and stated that Kelly could raise his jury-trial issues in an appeal from his murder sentence. The court based this action partly on its finding that Kelly’s plea of guilty to manslaughter was illegally induced by the jury’s guilty verdict of murder and the prosecutor’s tactful use of it. The court noted, “In fear of losing the jury’s verdict, on appeal, the prosecutor used the guilty verdict to coerce [Kelly] into pleading to the lesser offense of voluntary manslaughter.” Id The court further predicated its action on its finding, after reviewing the jury trial for possible ap-pealable issues, that Kelly had unknowingly waived fundamental appeal rights.

If we were to allow such maverick procedure, outside our rules of procedure, we would be permitting the nullification of a jury verdict, without just cause, only to have a subsequent guilty plea set aside, thus necessitating another trial. Jury verdicts would be unnecessarily vulnerable to possible claims of double-jeopardy violations. We would be encouraging defendants to seek “two bites at the apple,” i.e., to pursue the chance of an acquittal and, if convicted, to pursue plea bargaining with the prosecution. Moreover, postverdict plea bargaining could encourage impermissible inducements or pressures to plead. In turn, the trial courts and this court would receive an entirely new plethora of claims attacking guilty pleas. For example, the trial court might be called to review, without a transcript, the underlying trial for appealable errors to determine if the defendant, by pleading guilty, was unknowingly waiving valuable appellate rights or to determine if defense counsel was ineffective in advising the defendant to plead guilty. Plea bargaining serves the important function of alleviating some of the burdens placed on prosecutors and the courts by reducing the number of cases to be tried and appealed. However, postver-dict plea bargaining would not serve this function; it would only increase the burdens of the prosecutors, the trial courts, and the appellate courts. Without question, permitting postverdict guilty pleas pursuant to plea bargaining would only thwart just and speedy proceedings, simplicity in procedure, fairness, and elimination of unnecessary delay and expense. It would not necessarily protect the rights of the individual or preserve the public welfare.

“[0]rderly procedure and regulated methods, in the indictment, trial, and conviction or acquittal of those charged with crime, must be preserved — otherwise, we would drift into chaos.... ” McGee v. State, 22 Ala.App. 500, 500, 117 So. 487, 488 (1928). We find the following apropos here: “It is incumbent upon the parties to strictly adhere to our clearly articulated rules of procedure. Procedural rules do nothing if they do not establish uniformity upon which all participants in the legal system can rely.” Trujillo v. Serrano, 117 N.M. 273, 278, 871 P.2d 369, 374 (1994).

The trial court is “ ‘to avoid unreasonable or undue departures from [the] mode of trial [by a jury] or from any of the essential elements thereof....’” Singleton v. State, 288 Ala. 519, 522, 262 So.2d 768, 772 (1971), quoting Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854 (1930). This duty was not exercised in this case.

Accordingly, the judgment of the trial court is reversed, and this case is remanded.

The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Ala.Code 1975.

REVERSED AND REMANDED.

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

      . This was Whitson's second jury trial on this indictment. The first resulted in a mistrial after the jury was unable to reach a verdict.

      . The trial court’s sentencing order states the following in regard to its adjudication of Whitson's guilt:
      "On May 23, 2001, a duly empaneled jury returned a verdict finding the defendant, Sandy Lewis Whitson, Guilty of Robbery in the 1st Degree as charged in the Indictment.
      "The defendant and counsel ... and counsel for the State of Alabama ... appeared in open court for the defendant to be sentenced on his conviction for Robbery, 1st Degree. The defendant, before adjudication, changed his plea from Not Guilty to Guilty, and entered his plea of Guilty to the charge of Robbery in the 1st Degree. The Court hereby adjudicates the defendant Guilty of Robbery in the 1st Degree.”

      . The trial court stated, "Most of those explanation of rights or waiver of your rights [set out in the form similar to that approved in Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971)] were as to a trial but you have already had a trial.” The court did not thereafter advise Whitson of his rights. The court further stated, “Now, you have not done that [waived your right to a trial in this case;] you had a trial. So, you have not waived that right, but you are going to enter a plea of guilty now, as has been made known to the Court.”

      . We note that, under the Ohio Supreme Court Rules, this opinion has no weight of legal authority. However, we are not relying on it for its precedential value, but merely as an example of the multitude of problems arising from the acceptance of a guilty plea after a jury verdict of guilty.


author: PER CURIAM.

text:
    Darryl WILLIAMS v. STATE of Alabama.
    CR-02-0020.
    Court of Criminal Appeals of Alabama.
    Jan. 17, 2003.
    C. Franklin Snowden III, Montgomery, for appellant.
   PER CURIAM.

On August 19, 2002, the appellant, Darryl Williams, pleaded guilty to sodomy in the first degree and was sentenced to 10 years in the state penitentiary. He appealed from the conviction entered on his guilty plea. It has come to this Court’s attention that Williams did not reserve the right to raise any issue on appeal nor did he file a motion to withdraw his guilty plea. The question presented is what effect the failure to reserve an issue for appeal and the failure to file a motion to withdraw a guilty plea has on the appellate review of a conviction entered pursuant to a plea.

Williams pleaded guilty on August 19, 2002, pursuant to Rule 14.4, Ala.R.Crim.P., a rule amended effective August 1, 2002, to read as follows:

“(a) Colloquy with Defendant. In all minor misdemeanor cases, the execution of a form similar to Form C-44B will be sufficient and no colloquy shall be required. In all other cases, except where the defendant is a corporation or an association, the court shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court for the purposes of:
“(1) Ascertaining that the defendant has a full understanding of what a plea of guilty means and its consequences, by informing the defendant of and determining that the defendant understands:
“(i) The nature of the charge and the material elements of the offense to which the plea is offered;
“(ii) The mandatory minimum penalty, if any, and the maximum possible penalty provided by law, including any enhanced sentencing provisions;
“(iii) If applicable, the fact that the sentence may run consecutively to or concurrently with another sentence or sentences;
“(iv) The fact that the defendant has the right to plead not guilty, not guilty by reason of mental disease or defect, or both not guilty and not guilty by reason of mental disease or defect, and to persist in such a plea if it has already been made, or to plead guilty;
“(v) The fact that the defendant has the right to remain silent and may not be compelled to testify or give evidence against himself or herself, but has the right, if the defendant wishes to do so, to testify on his or her own behalf;
“(vi) The fact that, by entering a plea of guilty, the defendant waives the right to trial by jury, the right to confront witnesses against him or her, the right to cross-examine witnesses or have them cross-examined in the defendant’s presence, the right to testify and present evidence and witnesses on the defendant’s own behalf, and the right to have the aid of compulsory process in securing the attendance of witnesses;
“(vii) The fact that, if the plea of guilty is accepted by the court, there will not be a further trial on the issue of the defendant’s guilt; and
“(viii) The fact that there is no right to appeal unless the defendant has, before entering the plea of guilty, expressly reserved the right to appeal with respect to a particular issue or issues, in which event appellate review shall be limited to a determination of the issue or issues so reserved.”

(Emphasis added.)

The August 2002 amendment of Rule 14.4 dramatically affected appellate review of a guilty plea proceeding. Before the recent revision of Rule 14.4, subsection (e)(5) of Rule 2.2, Ala.R.Crim.P., which was also amended effective August 1, 2002, specifically stated that a defendant had a right to appeal a guilty plea. When Rule 14.4 was amended, Rule 2.2 was also amended to delete any reference to a defendant’s right to appeal a guilty plea.

According to Rule 14.4(a)(l)(viii), Ala. R.Crim.P., the only way to appeal from a guilty-plea proceeding is to reserve the right to appeal a certain issue before pleading guilty. However, we note that Rule 26.9(b), Ala.R.Crim.P., was also amended in August 2002. This rule now states:

“(b) Pronouncement of Sentence. In pronouncing sentence, the court shall:
“(4) Inform the defendant as to the defendant’s right to appeal; provided, however, in cases in which the defendant has entered a plea of guilty, the court shall advise the defendant of his or her right to appeal only in those cases in which the defendant (i) has entered a plea of guilty, but before entering the plea of guilty has expressly reserved his or her right to appeal with respect to a particular issue or issues, or (ii) has timely filed a motion to withdraw the plea of guilty and the motion has been denied, either by order of the court or by operation of law.”

(Emphasis added.) Rule 26.9(b)(4)(h) appears to add a right to appeal the denial of a motion to withdraw a guilty plea — a right that is not specifically recognized in Rule 14.4(a)(l)(viii) — the rule that specifically addresses guilty plea proceedings.

The record of Williams’s guilty-plea proceeding reflects the following:

“The Court: Any issues you need to reserve for appeal?
“[Defense counsel]: No.”

(R. 5.) Moreover, no motion to withdraw the guilty plea was filed in this case.

As previously noted, Rule 2.2(e), Ala. R.Crim.P., has been amended to eliminate the absolute right to appeal a judgment entered in a guilty plea proceeding. Although Rules 14.4(a)(l)(viii) and 26.9(b)(4) now provide a limited right to appeal, Williams failed to reserve any issue for appellate review before he entered his guilty plea, and he did not file a motion to withdraw his guilty plea. Consequently, Williams cannot proceed with this appeal because he has failed to invoke the limited right to appeal recognized in the rules as recently amended. If Williams is entitled to any review of his guilty-plea proceedings that review would be through a post-conviction proceeding pursuant to Rule 32, Ala.R.Crim.P.

Because no issues were preserved for this Court to review on direct appeal and because Williams did not move to withdraw his guilty plea, this appeal is due to be, and is hereby, dismissed.

APPEAL DISMISSED.

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

      . We note that when Rule 2.2(e)(5), Ala. R.Crim.P., was adopted by the Alabama Supreme Court this rule superseded § 15-15-26, Ala.Code 1975. Section 15-15-26 stated, "After the court has heard and considered a plea of guilty by a defendant and has permitted the filing of such plea and sentenced the defendant, such defendant shall not have the right of appeal from the action of the court." It appears that with the recent amendment of Rule 14.4, the Supreme Court has revived § 15-15-26.


text:
    Ex parte Timothy O. BUMPERS. (In re State of Alabama v. Timothy O. Bumpers).
    CR-02-0053.
    Court of Criminal Appeals of Alabama.
    Jan. 17, 2003.

      Thomas M. Goggans, Montgomery; and Bruce Maddox, Montgomery, for petitioner.
    William H. Pryor, Jr., atty. gen., and Edgar W. Greene, Jr., district atty., for respondent.
   PER CURIAM.

The petitioner, Timothy 0. Bumpers, filed this petition for a writ of habeas corpus directing Judge Thomas ap Roger Jones to reinstate his bail. Bumpers was arrested and indicted for three counts of possessing controlled substances. His bail was originally set at $1,500. Bumpers posted that bail and was released. On September 27, 2002, the State moved to have Bumpers’s bail revoked, stating as the ground that Bumpers had been arrested for a new offense while he was free on bail. Judge Jones granted the State’s request and Bumpers was arrested for the bail violation. No bail-revocation hearing was held. On October 2, 2002, Bumpers filed a motion seeking to be released on the original bail. Judge Jones denied that motion; this petition followed.

Bumpers argues that he has been illegally held in violation of Rule 7.5(a), Ala. R.Crim.P., since September 27, 2002, and that he is entitled to be released on his original bail. We allowed the State an opportunity to respond. The State’s only response is as follows:

“The Defendant is being held by the Sheriff in Dallas County pursuant to the Circuit Court, Thomas Jones presiding, revoking his bond. Said order was based upon the commission of a new drug [offense] by the Defendant.
“Judge Jones has ordered a hearing set on this matter for the next available scheduled Court date, October 18, 2002.”

Based on the State’s answer we instructed this Court’s clerk’s office to contact the circuit clerk for Dallas County to determine if a hearing was held as scheduled. The circuit clerk verified that a hearing was held on that date, but the clerk noted that the hearing did not address Bumper’s request to be released on his original bail. The October 18 hearing dealt with a motion that had previously been filed by Bumpers to dismiss the drug charges against him.

Rule 7.5, Ala.R.Crim.P., states:

“(a) Issuance of Warrant. Upon motion of the prosecutor stating with particularity the facts or circumstances constituting a material breach of the conditions of release or stating with particularity that material misrepresentations or omissions of fact were made in securing the defendant’s release, the court having jurisdiction over the defendant released shall issue an arrest warrant under Rule 3.1 to secure the defendant’s presence in court. A copy of the motion shall be served with the warrant, and a hearing shall be held on the motion without undue delay, except in no event later than seventy-two (72) hours after the arrest of the defendant released, as provided in Rule 4.3(a).
“(b) Hearing; Review of Conditions; Revocation of Release. If, after a hearing on the matters set forth in the motion, the court finds that the defendant released has not complied with or has violated the conditions of release, or that material misrepresentations or omissions of fact were made in securing the defendant’s release, the court may modify the conditions or revoke the release. If a ground alleged for revocation of the release is that the defendant released has violated the condition under Rule 7.3(a)(2) by committing a criminal offense, or that there was a misrepresentation or omission concerning other charges pending against the defendant released, the court may modify the conditions of release or revoke the release, if the court finds that there is probable cause (or if there has already been a finding of probable cause) to believe that the defendant released committed the other offense or offense charged.”

(Emphasis added.) It appears from the scant exhibits filed with this petition that the reason for revoking Bumpers’s bail was the fact that Bumpers had been charged with a new drag offense. However, there is no indication that the trial judge made a finding of probable cause as to the new charge. Nor is there any indication of the circumstances surrounding Bumpers’s arrest.

Bumpers argues that according to Rule 7.5(b), Ala.R.Crim.P., he was entitled to a hearing on the motion to revoke bail. After a careful reading of Rule 7.5(b), we disagree with Bumpers’s interpretation. Rule 7.5(b) contains separate provisions for bail violators who have been charged with certain violations of the conditions of release and violators who have been charged with a new offense while free on bah. (See the emphasized portion of Rule 7.5(b) quoted above.) This rule states that a trial court has the authority to revoke or modify bail when the bail violation is the commission of a new offense or offenses while on bail. The rule further states that there must be a finding of probable cause or there may already have been a finding of probable cause. There is no reference in this portion of the rule to a hearing. In fact, by the use of the language “or if there has already been a finding of probable cause,” this rule implies that the court may revoke bail without a hearing. Cf. Johnson v. State, 848 So.2d 1027 (Ala.Crim.App.2002) (bail was revoked without a hearing for bail violator charged with having contact with one of the victims and we directed the trial court to release Johnson on the terms of his original release).

Here, it is unclear from the scant materials submitted with the petition and the meager answer whether the trial court made any probable cause finding when it revoked bail for Bumpers based on his commission of a new offense while on bail. We recognize that a probable cause determination may have been made at the time of Bumpers’s arrest, if he was arrested based on an arrest warrant; however, the scant information in the petition and answer fails to disclose the circumstances surrounding Bumpers’s arrest.

This petition is granted to the extent that Judge Jones is directed to comply with Rule 7.5(b), Ala.R.Crim.P., by stating for the record that the new offense for which Bumpers was arrested was based on probable cause. Any other relief sought by Bumpers in his petition is denied.

It is clear that the drafters of Rule 7.5(b) attempted to make an exception for those offenders who commit other crimes while out on bail. However, what is not totally clear from the ambiguous wording of this rule, is how a court is to apply this exception. If our interpretation of this rule is inconsistent with the Supreme Court’s intent in adopting Rule 7.5(b), Ala. R.Crim.P., we invite the Criminal Rules Committee to suggest clarifying this rule.

PETITION GRANTED IN PART; DENIED IN PART.

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

      . We recognize that an arrest warrant may only be issued after probable cause has been found. See § 15-7-3, Ala.Code 1975.