author: HOUSTON, Justice.

text:
    Ex parte STATE HEALTH PLANNING AND DEVELOPMENT AGENCY. (In re State Health Planning and Development Agency v. LithoMedTech of Alabama, LLC). Ex parte Prime Lithotripter Operations, Inc., and Prime Medical Services, Inc. (In re Prime Lithotripter Operations, Inc., and Prime Medical Services, Inc. v. LithoMedTech of Alabama, LLC, and Prime Lithotripter Operations, Inc., and Prime Medical Services, Inc., v. UroVenture, LLC, et al.)
    1011707, 1011708.
    Supreme Court of Alabama.
    Nov. 22, 2002.
    Rehearing Denied March 14, 2003.

      Mark D. Wilkerson and Keith S. Miller of Brantley, Wilkerson & Bryan, P.C., Montgomery, for petitioner State Health Planning and Development Agency.
    John T. Mooresmith, John C. Morrow, Cary Tynes Wahlheim, and Jennifer L. Griffin of Burr & Forman, L.L.P., Birmingham, for petitioners Prime Litho-tripter Operations, Inc., d/b/a Tennessee Valley Lithotripsy, and d/b/a Alabama Lithotripsy Services; and Prime Medical Services, Inc.
    Lenora W. Pate, Kaye K. Houser, and Charles R. Driggars of Sirote & Permutt, P.C., Birmingham, for respondents Uro-Venture, LLC, et al.
    Thomas T. Gallion III, Constance C. Walker, and Jamie A. Johnston of Haskell, Slaughter, Young & Gallion, L.L.C., Montgomery, for respondents LithoMedTech of Alabama, LLC.
   HOUSTON, Justice.

The central issue in these appeals is whether vendors that provide mobile litho-tripsy equipment to hospitals are providing a “health service” requiring a “certificate of need” (“CON”) under Ala.Code 1975, § 22-21-263(a)(4). The Court of Civil Appeals answered this question in the negative, holding that “the health-care facilities and HMOs [health maintenance organizations] that provide health services must seek CON review in connection with providing such a service[; however, the] sellers or vendors of equipment that health-care facilities and HMOs use in order to provide such services need not obtain a CON.” Prime Lithotripter Operations, Inc. v. LithoMedTech of Alabama, LLC, 855 So.2d 1085, 1095-96 (Ala.Civ.App.2001). We granted the petitions for writs of certiorari filed by the State Health Planning and Development Agency (“SHPDA”) and by Prime Lithotripter Operations, Inc., d/b/a Tennessee Valley Li-thotripsy and Alabama Lithotripsy Services, and its parent corporation, Prime Medical Services, Inc. (hereinafter collectively referred to as “Prime Medical”). We affirm the judgment of the Court of Civil Appeals.

For a detailed discussion of the facts and procedural posture of these cases, see Prime Lithotripter Operations, Inc., 855 So.2d at 1087-91. As an initial matter, we note that we agree with the Court of Civil Appeals that this case presents a matter of first impression. 855 So.2d at 1093.

Prime Medical and SHPDA contend that the sale or lease of mobile lithotripsy equipment is a “new institutional health service” under Ala.Code 1975, § 22-21-263(a)(4), and that vendors of the equipment would therefore need to acquire a CON. Section 22-21-263(a)(4) provides, in pertinent part:

“(a) All new institutional health services which are subject to this article and which are proposed to be offered or developed within the state shall be subject to review under this article. No institutional health services which are subject to this article shall be permitted which are inconsistent with the State Health Plan. For the purposes of this article, new institutional health services shall include any of the following:
“(4) Health services proposed to be offered in or through a health care facility or health maintenance organization, and which were not offered on a regular basis in or through such health care facility or health maintenance organization within the 12 month period prior to the time such services would be offered....”

(Emphasis added.)

The definition in 22-21-263(a)(4) of “new institutional health services” builds on the following definition of “institutional health services” provided in Ala.Code 1975, § 22-21-260(9): “health services provided in or through health care facilities or health maintenance organizations, including the entities in or through which such services are provided.” (Emphasis added.) “Health services” are defined in Ala.Code 1975, § 22-21-260(8) as follows:

“Clinically related (i.e., diagnostic, curative, or rehabilitative) services, including alcohol, drug abuse, and mental health services customarily furnished on either an in-patient or out-patient basis by health care facilities, but not including the lawful practice of any profession or vocation conducted independently of a health care facility and in accordance with applicable licensing laws of this state.”

(Emphasis added.)

The Court of Civil Appeals reached its conclusion by interpreting that statutory language as follows:

“Section 22-21-263 defines ‘new institutional health services’ in terms that contemplate either the provision of a new service or the acquisition of some physical facility or equipment that will enable a health-care facility or an HMO to provide a service. In other words, facilities or organizations that provide those health services are the focus of the certification requirements. Nothing in § 22-21-263 or any other provision of this article requires an entity that merely seeks to sell or lease equipment to a health-care facility (for that facility to then use in providing a service) to obtain a CON.
“The definition of ‘institutional health service’ in § 22-21-260(9) uses the clause ‘including the entities through which such services are offered.’ However, that clause refers to the ‘healthcare facilities or Health Maintenance Organizations,’ which obviously are ‘entities.’ The term ‘health services’ does not include ‘entities.’ Although the definition is unartfully written, what the Legislature was attempting to communicate was the idea that an ‘institutional health service’ is a service provided in or through a health-care facility or an HMO, and that the health-care facility or HMO includes, for this purpose, those ‘entities’ who contract with or are affiliated with the health-care facility or HMO to be the direct provider of the service to the patient. In other words, a health service will be considered as provided in or through a given health-care facility or an HMO (therefore potentially subjecting that health-care facility or HMO to the CON requirement) even if the direct deliverer of the services to the patient is a physician’s professional corporation (‘P.C.’), if that P.C. is the ‘entity in or through which’ the health-care facility provides a service to its patients. Because UroVenture and LithoMedTech are not providing a service, but only a piece of equipment, then they are not an ‘entity’ referred to in the clause ‘including entities in or through which such services are provided.’
“We. conclude that the health-care facilities and HMOs that provide health services must seek CON review in connection with providing such a service. The sellers or vendors of equipment that health-care facilities and HMOs use in order to provide such services need not obtain a CON.”

Prime Lithotripter Operations, Inc., 855 So.2d at 1095-96.

We find the Court of Civil Appeals’ reasoning interpreting § 22-21-263 to be sound. However, Prime Medical and SHPDA argue that the question of how to interpret the statutes at issue should be viewed with the presumption that SHPDA’s interpretation is correct.

“ ‘ “ ‘It is settled that courts should give great weight to any reasonable construction of a regulatory statute adopted by the agency charged with the enforcement of that statute.’ ” ’ ” QCC, Inc. v. Hall, 757 So.2d 1115, 1119 (Ala.2000) (quoting NationsBank of North Carolina, N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 256-57, 115 S.Ct. 810, 130 L.Ed.2d 740 (1995), quoting in turn other cases); see also Hulcher v. Taunton, 388 So.2d 1203, 1206 (Ala.1980) (“Interpretations of an act by the administrative agency charged with its enforcement, though not conclusive, are to be given great weight by the reviewing court.”).

SHPDA, the agency charged with enforcing Alabama’s CON laws, has interpreted the phrase “entities in or through which such services are provided” from § 22-21-260(9) to include “vendors of equipment which are providing services which are necessary to and a vital part of the provision of the health care service in question either to the health care facility, the health maintenance organization or the physicians who are directly providing the care to the patients.” SHPDA’s brief at 27. Prime Medical and SHPDA contend that this interpretation is “evidenced by the express terms of Ala. Admin. Code r. 410-1-4-.01(1)(d), which specifically includes ‘health services to be provided by vendors or lessors of equipment’ in the definition of ‘new institutional health services’ which are subject to review.” Id. at 27-28. Prime Medical and SHPDA argue that because this interpretation is reasonable it is entitled to great deference, especially given the fact that SHPDA has applied this construction of the statutory language to require a CON for the purchase of mobile lithotripsy equipment for over 10 years. See Farmer v. Hypo Holdings, Inc., 675 So.2d 387, 390 (Ala.1996) (“We have previously stated that because the legislature is presumed to be aware of how an administrative agency has interpreted a statute, the subsequent reenactment of the statute without material change is an indication that the legislature approves the agency’s interpretation.”). We disagree.

The traditional deference given an administrative agency’s interpretation of a statute appropriately exists (1) when the agency is actually charged with the enforcement of the statute and (2) when the interpretation does not exceed the agency’s statutory authority (i.e., jurisdiction). See Ex parte Jones Mfg. Co., 589 So.2d 208, 210 (Ala.1991) (“An administrative regulation must be consistent with the statutes under which its promulgation is authorized.... An administrative agency cannot usurp legislative powers or contravene a statute.... A regulation cannot subvert or enlarge upon statutory policy.”). The latter condition follows from the understanding that administrative agencies are creatures of the Legislature, which serves as the source of their authority and sets their relevant boundaries. Because an administrative agency may not expand its own jurisdiction by its interpretation of a statute (or by any other means), courts deciding whether to give deference to an agency’s interpretation of a statute must first determine whether the agency’s interpretation is operative within the agency’s particular sphere of statutory authority.

Here, the Court of Civil Appeals, in interpreting the relevant statutes, properly did not give deference to SHPDA’s interpretation. See Prime Lithotripter Operations, Inc., 855 So.2d at 1096. We agree with the Court of Civil Appeals’ holding that, although § 22-21-263(a)(4) provides for CON review of certain “institutional health services,” the sale or lease of mobile lithotripsy equipment does not constitute such a “service,” but rather constitutes the mere providing of equipment for others (who are subject to CON review) to provide the actual service. Therefore, because the sale or lease of mobile lithotripsy equipment falls outside the SHPDA’s particular sphere of statutory authority, any SHPDA interpretation that would bring the acts of selling or leasing mobile litho-tripsy equipment into that sphere is invalid and is not entitled to deference.

Based on the above, we adopt the reasoning of the Court of Civil Appeals and affirm its judgment.

1011707 — AFFIRMED.

1011708 — AFFIRMED.

SEE, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., concurs in the result.

LYONS, J., recuses himself.

      . Lithotripsy is a noninvasive surgical procedure that eliminates kidney stones by bombarding them with shock waves.

      . Respondents LithoMedTech and UroVen-ture suggest that past CON review of mobile lithotripsy equipment was pursuant to Ala. Code 1975, § 22-21-263(a)(2), which includes in the definition of "new institutional health services” the following:
      "Any expenditure by or on behalf of a health care facility or health maintenance organization which ... is a capital expenditure in excess of one million five hundred thousand dollars ($1,500,000) for major medical equipment except for magnetic resonance imaging equipment only, which shall be reviewable regardless of the expenditure. ...”
      LithoMedTech and UroVenture note that, in the past, the limit in the statute on a capital expenditure was $500,000, an amount far less than it is today, and that the cost of obtaining mobile lithotripsy equipment was far more than it is today. Thus, in the past, the statute was triggered, making the sale of mobile li-thotripsy equipment that cost more than $500,000 subject to CON review.

      . In its brief to this Court, Prime Medical also raises the issue whether the State Health Coordinating Council was a necessary party to its action under Ala.Code 1975, § 41-22-10. However, this argument was not listed as a grounds for certiorari review, and it is therefore beyond the scope of our review.


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    Spencer CHRISTY v. SMITH MOUNTAIN, INC., d/b/a Lake Martin Building Supply.
    2011129.
    Court of Civil Appeals of Alabama.
    Feb. 21, 2003.

      Ruth S. Sullivan, Dadeville, for appellant.
    Perry G. Myer, Jr., Alexander City, for appellee.
   THOMPSON, Judge.

On May 23, 2001, Smith Mountain, Inc., d/b/a Lake Martin Building Supply (“Smith”), sued Spencer Christy (“Christy”) in the district court of Talla-poosa County, seeking $4,526.70 on an unpaid account for building materials. On June 8, 2001, Christy answered, denying the allegations set forth in the complaint. On September 21, 2001, the district court entered a default judgment, awarding Smith $5,895.54, the balance of the unpaid account plus accumulated interest, and an attorney fee of $1,179.11. That same day, Christy appealed that judgment to the Tal-lapoosa County Circuit Court (hereinafter “the trial court”) for a trial de novo.

On April 5, 2002, the trial court held a hearing and received ore tenus evidence. On April 10, 2002, Smith filed a motion to increase the attorney-fee award and the amount of interest awarded. On May 29, 2002, the trial court awarded Smith $4,526.70 on the unpaid account, plus interest of $2,114.58, and an attorney fee of $2,181.04. Christy filed a postjudgment motion; that motion was denied by the trial court on July 15, 2002. Christy timely appealed.

At the April 5, 2002, hearing, William Farrington, the principal shareholder, testified on behalf of Smith; Christy testified on his own behalf. Farrington testified that Smith is a building-supply company and hardware store in the Lake Martin area. According to the record on appeal and the testimony of both parties, Christy signed a “credit application and charge account agreement” (“the credit application”) with Smith on July 28, 1999. The credit application stated that interest on any overdue accounts would accrue at a rate of 1.5% per month; it also specified that in the event of a default in paying the account Christy would pay all costs of the debt collection, including a reasonable attorney fee and court costs.

At the hearing, Christy’s counsel objected to the introduction into evidence of the credit application and the accompanying testimony about an attorney fee on the grounds that “[the credit application was] not in the pleadings.” The trial court allowed the credit application to be admitted into evidence but stated that it would rule on the objection as to an attorney fee at an “appropriate time.”

Farrington testified that after the credit application was approved in 1999, Christy began ordering building supplies and hardware items on his account in order to repair a lake house he had purchased. According to exhibits and Farrington’s testimony, Christy consistently paid his account during 1999 and most of 2000. According to Smith’s records, on September 20, 2000, Christy’s account balance reached $0 for the last time. Smith’s records indicate that Christy continued to make payments on his account after September 20, 2000, but that the balance varied from $1,389.20 to $6,734.35. Farrington testified that he allowed Christy’s account to remain unpaid for five months and that he offered to extend Christy’s payment period if Christy would assign a second mortgage on his lake house to Smith as collateral for the debt. Christy testified that he refused to sign the mortgage assignment. In either February or March 2001, Smith referred Christy’s overdue account to a collection agency.

On March 3, 2001, Christy sent a letter to Smith acknowledging that he owed Smith $5,312.87 on his account. According to Farrington, after March 3, 2001, Christy made two additional payments of $786.17 and $100 on the account, leaving the balance owed on Christy’s account at $4,426.70, including interest, at the time of the trial in this matter. Smith alleged in its complaint that Christy’s account balance was $4,526.70. However, Smith’s exhibits and Farrington’s testimony indicate that Christy’s account balance was $4,426.70 at the time of trial. The trial court awarded Smith $4,526.70, on the unpaid account. Therefore, we reverse the trial court’s judgment insofar as it awarded Smith $4,526.70, and we remand the case for the trial court to enter an award of $4,426.70 on the unpaid account.

In his brief on appeal, Christy acknowledges that he owes Smith $4,426.70, the amount due on his account at the time of the trial. However, Christy argues that Smith’s complaint was insufficient to place the issues of interest and an attorney fee before the trial court. When the sufficiency of a complaint is at issue, this court will construe the complaint liberally in favor of the plaintiff. Radenhausen v. Doss, 819 So.2d 616 (Ala.2001). A complaint should be dismissed only if the plaintiff cannot prove any set of facts in support of the claim that would entitle him to relief. Radenhausen v. Doss, supra.

“While one purpose of the Alabama Rules of Civil Procedure is to effect justice upon the merits of the claim and to renounce procedural technicalities, we cannot ignore the ultimate goal of pleadings to provide fair notice to the parties of the claim against them and of the grounds upon which it rests.”

Bridewell v. Peoples Bank of Alabama, Inc., 501 So.2d 1244, 1247 (Ala.Civ.App.1987), citing Simpson v. Jones, 460 So.2d 1282 (Ala.1984). According to Rule 8(a), Ala. R. Civ. P., a claim for relief must contain “(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks.” To comply with that rule, the claim for relief must give the opposing party fair notice of the pleader’s claim and the grounds upon which that claim rests. Mitchell v. Mitchell, 506 So.2d 1009 (Ala.Civ.App.1987). For the purpose of actually stating the nature of the claim, “[a] fair reading and study of the Alabama Rules of Civil Procedure lead to the determination that pleading technicalities are now largely avoided and that the pleading of legal conclusions is not prohibited, as long as the requisite fair notice is provided thereby to the opponent.” Mitchell, 506 So.2d at 1010.

Christy argues that the complaint did not provide notice that the credit application was a basis of the complaint; therefore, Christy argues, Smith’s claims seeking an attorney fee and interest were not properly before the trial court. Smith’s complaint contained three counts, each alleging that Christy owed Smith $4,526.70 on the unpaid account; each count, although stated in different terms, sought the same relief. The complaint stated that the parties “entered into an agreement in which the defendant agreed to pay plaintiff $4,526.70 for materials.” Technically, the credit application provided that Christy would pay the amounts he charged on his account with Smith, but that credit application did not specifically mention the amount of $4,526.70. However, we conclude that the complaint did provide notice that Smith was suing on the credit application to recover the amount of money owed on Christy’s account. See Mitchell, 506 So.2d at 1010. In addition, the credit application provided for the recovery of interest and an attorney fee in any action to collect on the account. Therefore, we hold that the complaint satisfied the requirements of Rule 8(a), Ala. R. Civ. P.

Additionally, each count set forth in the complaint contained the statement, “[w]herefore plaintiff demands judgment against the defendant in the sum of $4,526.70, attorney fees, interest, and costs.” This plain statement sets forth the relief sought and satisfies the requirements of Rule 8(a), Ala. R. Civ. P.

Other than asserting that the award of an attorney fee was unreasonable, Christy makes no further argument. Because Christy has not properly challenged the reasonableness of the attorney-fee award, we affirm the trial court’s award of $2,181.04 as an attorney fee.

We also affirm the trial court’s decision to award interest to Smith. On appeal, however, Christy challenges the trial court’s calculation of interest. The credit application with Christy allows Smith to assess interest at a rate of 1.5% per month. This court is unable to ascertain how the trial court arrived at its award of interest, given the stated rate of 1.5% per month and an account balance of $4,426.70. Therefore, we must reverse the trial court’s calculation of the interest award and remand the case to the trial court for a recalculation of the interest award in accordance with the terms of the credit application.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

MURDOCK, J., concurs in the result.

      . Christy failed to appear before the district court at the scheduled hearing.

      . The $100 payment was made after Smith filed its complaint in the district court seeking $4,526.70 as the balance of the unpaid account.


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

text:
    The IMPROVED BENEVOLENT AND PROTECTIVE ORDER OF the ELKS of the WORLD and Donald P. Wilson v. Edwin MOSS et al.
    2020020.
    Court of Civil Appeals of Alabama.
    Feb. 28, 2003.

      Jerry M. Blevins, Montgomery, for appellants.
    J.L. Chestnut, Jr., of Chestnut, Sanders, Sanders, Pettaway, Campbell & Albright, L.L.C., Selma, for appellees.
   On Application for Rehearing

THOMPSON, Judge.

The opinion of November 15, 2002, is withdrawn, and the following is substituted therefor:

On January 19, 1996, Edwin Moss, Jim Stallings, Malcolm Thomas, Thomas Hereford, C. Ray Edmonds, Lem Long, Jr., and the Alabama State Association of the Improved Benevolent and Protective Order of the Elks of the World filed a complaint seeking a declaratory judgment, injunctive relief, an accounting, and damages. The plaintiffs named as defendants in that action the Improved Benevolent and Protective Order of the Elks of the World (“IB-POEW”); Donald Wilson, individually and in his capacity as the grand exalted ruler of the IBPOEW; and Alexander Ashley, Hersey Quinn Winford, and Randolph Lloyd Iffil, individually and in their capacities as grand lodge officers of the IB-POEW. The case action summary sheet and other documentation contained in the record on appeal indicates that the defendants each received service of process.

On April 18, 1996, the plaintiffs sought from the clerk of the circuit court the entry of a default judgment against defendants IBPOEW and Wilson. On that same date, the clerk entered, pursuant to Rule 55, Ala. R. Civ. P., a default against IBPOEW and Wilson. On April 19, 1996, the trial court conducted a hearing on the plaintiffs’ motion for a default judgment. The trial court noted in its judgment in this case that during the April 19, 1996, hearing, an attorney appeared on behalf of the defendants and argued various issues, including improper service of process, and that that attorney agreed to accept service of the complaint on behalf of the defendants.

After April 19, 1996, the defendants did not file an answer or respond to the plaintiffs’ discovery requests. On August 6, 1996, the plaintiffs again filed in the trial court a motion seeking the entry of a judgment on the clerk’s entry of default. On August 12,1996, the trial court entered a default judgment in favor of the plaintiffs against IBPOEW and Wilson. In that August 12, 1996, default judgment, the trial court set aside Wilson’s election to an office within the IBPOEW, ordered that the IBPOEW allow an accounting of its books, and awarded damages to the individual plaintiffs. No appeal was taken from the August 12, 1996, default judgment. The trial court later entered an order dismissing defendants Ashley, Win-ford, and Iffil.

In March 1998, the plaintiffs filed a motion seeking to add certain persons as additional defendants to the action. The plaintiffs also moved to have defendants IBPOEW and Wilson held in contempt for their alleged failure to comply with the terms of the August 12, 1996, default judgment. The trial court conducted an evi-dentiary hearing, and on May 7, 1998, it entered an order requiring the enforcement of its August 12, 1996, default judgment and adding the proposed additional defendants to the action subject to the qualification that the newly added defendants were not subject to liability under the August 12,1996, default judgment.

On September 7, 2001, IBPOEW and Wilson (hereinafter together referred to as “the defendants”) filed a motion purportedly pursuant to Rule 60(b)(4), Ala. R. Civ. P., in which they sought relief from the August 12, 1996, default judgment. In that motion, the defendants briefly asserted that the default judgment was void for lack of personal and subject-matter jurisdiction. The trial court denied the defendants’ Rule 60(b)(4) motion on May 31, 2002. The defendants appealed. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, the defendants argue that the trial court lacked subject-matter jurisdiction because, they allege, the plaintiffs’ claims were derivative in nature and that, therefore, its default judgment was void. The defendant’s September 7, 2001, motion was made pursuant to Rule 60(b)(4), Ala. R. Civ. P., which allows a party to seek relief from a void judgment. A motion made pursuant to Rule 60(b)(4) must be made within a “reasonable time.” Rule 60(b), Ala. R. Civ. P.; McNutt v. Beaty, 370 So.2d 998 (Ala.1979); Greene v. Connelly, 628 So.2d 346 (Ala.1993); Bryant v. First Tuskegee Bank, [Ms. 2010817, Nov. 15, 2002] - So.2d - (Ala.Civ.App.2002). See also Marshall v. Mick-State Homes, Inc., 468 So.2d 131, 133 (Ala.1985) (“The only time limitation with regard to attacking a void judgment is that it be done within a reasonable time.”). “ What constitutes a “reasonable time” depends on the facts of each case, taking into consideration the interest of finality, the reason for the delay, the practical ability to learn earlier of the grounds relied upon, and the prejudice to the other parties.’ ” Bryant v. First Tuskegee Bank, — So.2d at - (quoting Ex parte W.J., 622 So.2d 358, 361 (Ala.1993)).

In this case, the record indicates that the defendants were properly served via certified mail and that an attorney also later agreed to accept service on their behalf. The August 12,1996, default judgment awarded the individual plaintiffs money damages; set aside the election of defendant Wilson to an office within the IBPOEW; and required the IBPOEW to allow an accounting or an audit of its financial records. On May 7, 1998, the trial court entered an order that, among other things, required the enforcement of its August 12, 1996, default judgment. The May 7, 1998, order specifically addressed the conduct of the defendants after the entry of the August 12, 1996, default judgment.

We note that in their brief on original submission, the defendants cited no authority in support of their argument on this issue, in contravention of Rule 28(a)(10), Ala. R.App. P. On application for rehearing, the defendants contend that because this court may take notice of a lack of subject-matter jurisdiction ex mero motu they were not required to properly argue the issue before this court. We need not decide that issue, however. There is no evidence in the record indicating, and the defendants have made no argument, that the five-year delay between the entry of the August 12, 1996, default judgment and their September 7, 2001, motion for relief from that judgment was reasonable.

In their brief on application for rehearing, the defendants contend that they filed their Rule 60(b) motion within a reasonable time of the May 7, 1998, order. However, in their Rule 60(b) motion, the defendants did not purport to be seeking relief from the May 7, 1998, order. Also, the May 7, 1998, order, as it applied to the defendants IBPOEW and Wilson, simply enforced the provisions of the August 12, 1996, default judgment. Therefore, we reject the defendants’ argument that the May 7, 1998, order somehow rendered reasonable the timing of their Rule 60(b)(4) motion seeking relief from the August 12, 1996, default judgment. Further, the defendants’ argument pertaining to the May 7, 1998, order has been impermissibly raised for the first time in the defendants’ brief on application for rehearing. See Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251, 253 (Ala.1985) (“New supporting arguments presented for the first time on rehearing generally will not be considered.”); Schulte v. Smith, 708 So.2d 138, 141 n. 2 (Ala.1997) (“this argument was raised for the first time on application for rehearing, and therefore will not be considered”).

In Bryant v. First Tuskegee Bank, supra, this court determined that a motion made pursuant to Rule 60(b)(4) and filed more than two years after the entry of a default judgment was, under the facts of that case, not filed within a reasonable time. In reaching that holding, the court cited Ashley v. State ex rel. Brooks, 668 So.2d 7 (Ala.Civ.App.1994). Bryant v. First Tuskegee Bank, — So.2d at -. In Ashley, supra, this court held that a Rule 60(b)(4) motion filed two years after the entry of a consent judgment was not filed within a reasonable time.

Even assuming, without deciding, that the plaintiffs’ claims were derivative and did not vest jurisdiction in the trial court, we conclude that because the defendants waited five years to file the Rule 60(b)(4) motion, that motion was not filed within a reasonable time. Therefore, we affirm the trial court’s denial of that part of the defendants’ Rule 60(b) motion that addressed the issue of subject-matter jurisdiction.

The defendants also argue that the trial court erred in denying their motion for relief from the August 12, 1996, default judgment because, they argue, the trial court did not have personal jurisdiction over them; they argue that the default judgment is void for that reason. See Bryant v. First Tuskegee Bank, supra (a judgment is void if the trial court lacked personal jurisdiction over the parties). As discussed previously, a Rule 60(b)(4) motion alleging a judgment is void must be filed within a reasonable time. See Rule 60(b), Ala. R. Civ. P.; McNutt v. Beaty, supra; Greene v. Connelly, supra; Bryant v. First Tuskegee Bank, supra; Marshall v. Mid-State Homes, Inc., supra. We have already determined that given the facts of this case, the defendants’ Rule 60(b)(4) motion was not filed within a reasonable time of the August 12, 1996, default judgment from which the defendants sought relief. Therefore, the trial court’s denial of the defendants’ motion seeking relief from judgment on the basis of lack of personal jurisdiction is due to be affirmed.

Even assuming that this court could reach the personal-jurisdiction issue, we would affirm on the merits. The defendants argue that the attorney who accepted service of process on their behalf did not comply with Rule 4(h), Ala. R. Civ. P., in doing so. However, in the trial court, the defendants contended only generally that the trial court did not have personal jurisdiction over them. In pertinent part, that motion stated only that the court lacked personal jurisdiction over the defendants; in a footnote, the defendants asserted that the attorney who accepted service of process on their behalf did not have authority to do so. The defendants’ Rule 60(b) motion did not contain any explanation of the defendants’ argument as to the effect of that alleged lack of authority to accept personal service; further, it contained no citations to any supporting authority.

In their brief on appeal, the defendants cite Rule 4(h), Ala. R. Civ. P., and some supporting caselaw; the defendants argue that Rule 4(h) requires that acceptance of service of process be in writing and be signed by the defendant and a credible witness. See Rule 4(h), Ala. R. Civ. P.; Colvin v. Colvin, 628 So.2d 802 (Ala.Civ.App.1993). Before the trial court, however, the defendants did not seek relief from the default judgment on the basis of the trial court’s purported failure to ensure compliance with Rule 4(h), Ala. R. Civ. P. An appellant may not on appeal seek reversal of a trial court’s judgment on the basis of an argument not presented to the trial court. See Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988) (“[an appellate court] will not reverse the trial court’s judgment on a ground raised for the first time on appeal”).

Further, we note that the case-action summary indicates that the defendants were served, and the record on appeal contains return receipts indicating that each defendant was served, by certified mail. On application for rehearing, the defendants contend that “the issue [presented to this Court] on submission was whether service [of process] was perfected on appellants via certified mail, and not whether Rule 4(h) was complied with.” A review of the brief originally submitted to this court indicates that the defendants dedicate only two sentences in that brief to the issue of certified service. In those two sentences, the defendants make several factual assertions: that the record indicates that service on the defendants was issued; that the record indicates that service was perfected by that method; and that the record contains no documentation other than the case-action summary to verify that service of process. The defendants’ original brief contains no argument or citation to authority pertaining to the issue of certified service. The remainder of the defendants’ argument on the issue of personal jurisdiction in the defendants’ original brief is dedicated to their argument pertaining to Rule 4(h).

In their reply brief, the defendants do briefly argue that the certified service of the defendants was not proper. However, an argument may not be raised, nor may an argument be supported by citations to authority, for the first time in an appellant’s reply brief. Sanders v. Smitherman, 776 So.2d 68, 73 n. 4 (Ala.2000); C & S Family Credit of Alabama, Inc. v. McNairy, 613 So.2d 1232, 1232 n. 1 (Ala.1992); Pate v. Billy Boyd Realty & Constr., Inc., 699 So.2d 186, 189 (Ala.Civ.App.1997). Further, in their Rule 60(b) motion submitted to the trial court, the defendants did not assert that the certified service of process was ineffective or improper; the defendants have improperly attempted to raise this issue for the first time on appeal in their reply brief.

The defendants also argue that the trial court failed to give them proper notice pursuant to Rule 55(b)(2), Ala. R. Civ. P., béfore entering the default judgment against them, and that, therefore, the judgment is void. This is not an issue the defendants presented to the trial court in their Rule 60(b) motion. Even assuming that this court may address this issue for the first time on appeal, we would affirm. As previously discussed, the defendants’ Rule 60(b)(4) motion was not made within a reasonable time; therefore, we cannot say that the trial court erred in denying that motion.

Further, Rule 55(b)(2) provides in part that “[i]f the party against whom judgment by default is sought has appeared in the action, the party ... shall be served with written notice of the application for judgment at least three (3) days prior to the hearing on such application.” The defendants contend that they did not receive the required three days’ notice before the default judgment was entered.

The defendants contend in their brief on appeal that they first appeared in this matter during the April 19, 1996, hearing before the trial court, which took place one day after the clerk entered the default against them. In their brief on appeal, the defendants do not contend that they were entitled to notice under Rule 55(b)(2) of that April 19, 1996, hearing, apparently conceding that, under that rule, they were not entitled to notice until such time as they appeared in the action. On August 2, 1996, the plaintiffs filed another motion asking the trial court to enter a judgment on the default already entered by the clerk. The defendants argue that the trial court, without providing them notice as required by Rule 55(b)(2), impermissibly entered a default judgment only four days after the plaintiffs filed their second motion for a default judgment.

The plaintiffs filed their motion for a default judgment on August 2, 1996; that motion indicates that it was properly served on the defendants. On August 12, 1996, more than three days after the plaintiffs filed their written application for a default judgment, the trial court entered its default judgment. Further, in that default judgment, the trial court noted that it had declined, given the defendants’ arguments at the April 19, 1996, hearing, to enter a default judgment at that time. However, in entering its August 12, 1996, default judgment, the trial court determined that the defendants still had failed, even after over 90 days had passed from the April 19, 1996, hearing on the default judgment, to respond to the complaint or to the plaintiffs’ discovery requests. Thus, the evidence supports the trial court’s conclusion that the defendants had “failed to plead or otherwise defend as provided by” the Alabama Rules of Civil Procedure, see Rule 55(a), Ala. R. Civ. P.

The trial court’s judgment is due to be affirmed.

OPINION OF NOVEMBER 15, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.

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

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

CRAWLEY, Judge,

concurring in the result.

I concur in the result reached by the majority in this case because I am constrained to agree that under the facts of this case the Rule 60(b)(4), Ala. R. Civ. P., motion was not filed within a reasonable time. See Greene v. Connelly, 628 So.2d 346 (Ala.1993). Our supreme court has said on several occasions that the reasonable-time limitation contained in Rule 60(b) applies to a Rule 60(b)(4) motion. However, I agree with the discussion of the application of that time limit to challenges of void judgments in McBrayer v. Hokes Bluff Auto Parts, 685 So.2d 763, 765 (Ala.Civ.App.1996). In McBrayer, this court stated that “persuasive authority now indicates that the ‘reasonable time’ limitation should not be applied to actions seeking to set aside void judgments pursuant to Rule 60(b)(4), Ala. R. Civ. P.” McBrayer, 685 So.2d at 765. That persuasive authority includes the federal courts and sister states. See id. (citing Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126 (11th Cir.1994), Allred v. Tucci, 85 N.C.App. 138, 354 S.E.2d 291 (1987); Falkner v. Amerifirst Fed. Savings & Loan Assoc., 489 So.2d 758 (Fla.Dist.Ct.App.1986); Garcia v. Garcia, 712 P.2d 288 (Utah 1986); Reynaud v. Koszela, 473 A.2d 281 (R.I.1984); Barkley v. Poland, 7 Kan.App.2d 625, 646 P.2d 1124 (1982); and 11 C. Wright & A. Miller, Federal Practice and Procedure § 2862 (1973)). Because our supreme court has yet to adopt the federal approach, I must concur in affirming the denial of the Rule 60(b)(4) motion.

MURDOCK, Judge,

concurring in the result.

I concur in the result reached by the majority. I write separately, however, to address only the three-day-notice issue under Rule 55(b)(2), Ala. R. Civ. P.

The defendants attempt to use Rule 60(b)(4), Ala. R. Civ. P., to obtain relief from a default judgment they claim was entered without the three days’ notice provided for in Rule 55(b)(2), Ala. R. Civ. P. Rule 60(b)(4) provides that a party may obtain relief from a judgment that is “void.” In Welch v. GFC Credit Corp., 336 So.2d 1346 (Ala.Civ.App.1976), this court recognized that an issue existed as to whether a violation of the provisions of Rule 55(b)(2) would render a judgment void, but found it unnecessary to resolve that issue. No Alabama case decided since Welch has found it necessaiy to resolve this issue. Compare, e.g., Planet Corp. v. Sullivan, 702 F.2d 123 (7th Cir.1983) (explaining that Rule 60(b)(4), Fed. R.Civ.P., which is for the most part identical to Alabama’s Rule 60(b)(4), is generally considered to be inapplicable when the only ground for asserting that the judgment is void is the failure to give notice pursuant to Rule 55(b)(2), and, thus, a default entered without written notice is voidable, not void); Martha Stewart Living Omnimedia, L.L.C. v. Beers Flower Shop, Inc. (No. 98-Civ.3398) (S.D.N.Y., September 21, 1998) (not published in F.Supp.) (explaining that rather than determining that a default judgment is void when there has been a failure to give notice, the more sensible rule is to consider the criteria ordinarily consulted when evaluating a Rule 60 motion); Traveltown, Inc. v. Gerhardt Inv. Group, 577 F.Supp. 155, 157 (N.D.N.Y.1983) (“Where the 3 day notice requirement of Rule 55(b)(2)[, Fed. R.Civ.P.,] has not been complied with, the default judgment is generally regarded as voidable under Rule 60(b)(6) rather than void under Rule 60(b)(4).”). See generally Osborn v. Roche, 813 So.2d 811 (Ala.2001) (a judgment is void under Rule 60(b)(4) only if the court that rendered the judgment lacked subject-matter jurisdiction or personal jurisdiction or if it acted in a manner inconsistent with due process); R.J. Reynolds Tobacco Co. v. Cantley, 717 So.2d 751 (Ala.1998) (Rule 60(b) is not intended as a substitute for appellate correction of errors).

In concurring in the majority opinion, I express no view, and I do not read the majority opinion as expressing a view, as to whether a failure to comply with the notice provision of Rule 55(b)(2) renders a default judgment void. I simply agree that, even if Rule 60(b)(4) (as opposed to Rule 55(c) or some other provision of Rule 60(b)) is the proper vehicle for obtaining relief for the alleged violation of Rule 55(b)(2) in this case, the defendants did not file such a motion within a reasonable time.

      . The default judgment was signed by the trial judge on August 6, 1996, but was not filed in the clerk's office until August 12, 1996.


author: CRAWLEY, Judge.

text:
    David F. STEELE et al. v. W.V. McRANEY, Sr., et al. Mark A. Roberts et al. v. Regions Bank et al.
    2010850 and 2010911.
    Court of Civil Appeals of Alabama.
    Feb. 28, 2003.

      Daniel G. Blackburn of Blackburn & Conner, P.C., for David F. Steele et al.
    John C. Caíame of Gamble, Gamble & Caíame, L.L.C., Selma, for James H. Sherer, Mark A. Roberts, Zachary M. Hutch-ins, John Thomas Sexton, and William D. Sudduth.
    Donald R. Jones, Jr., and William R. Pringle, Montgomery, for Goodwyn, Mills & Cawood, Inc.
   CRAWLEY, Judge.

W.V. McRaney, Sr.; W.V. McRaney, Jr.; and Michael V. McRaney, individually and as custodian for Jillian Paige McRaney, a minor (hereinafter collectively referred to as “McRaney”), sued David F. Steele, Har-vell Hines Steele, and J. Hudson Hines (hereinafter collectively referred to as “Steele”), alleging that Steele had wrongfully cut timber on property owned by McRaney.

McRaney and Steele are adjoining landowners. Steele contracted with a corporation, Hines, Steele and Steele, Inc., to cut timber on an eight-acre tract of real property that Steele thought it owned. McRa-ney claims that it has a deed to a portion of the eight-acre tract and that it owns the remainder of the eight-acre tract by adverse possession.

McRaney’s five-count complaint alleged trespass, conversion, negligent hiring and supervision, wanton hiring and supervision, and an action to quiet title to the disputed property. Steele generally denied the allegations of the complaint and counterclaimed, also seeking to quiet title to the property. Steele filed a third-party complaint against Mark A. Roberts, James H. Sherer, Zachary M. Hutchens, John Thomas Sexton, and William D. Sudduth (hereinafter collectively referred to as “Roberts”), the grantors from whom Steele had acquired the property. Steele’s third-party complaint alleged a breach by Roberts of the covenant of seisin, the covenant against encumbrances, and the covenant of quiet enjoyment.

Roberts answered Steele’s third-party complaint and filed a third-party complaint against Regions Bank, Marie Hotz and John Stewart, as trustees of the Simpson Foundation (hereinafter collectively referred to as “Regions”), the grantors from whom Roberts had acquired the property it conveyed to Steele. Roberts’s third-party complaint alleged the same breach-of-covenant claims against its grantor, Regions, that Steele alleged against its grant- or, Roberts.

Regions filed a third-party complaint against Goodwyn, Mills & Cawood, Inc. (hereinafter referred to as “the surveyors”), alleging that the surveyors had surveyed its property in 1986, and that they had negligently included in that survey property not owned by Regions. Regions further alleged that the legal description of the property that appeared in the deeds from Regions to Roberts and from Roberts to Steele had been based on the incorrect survey.

The surveyors moved for a judgment on the pleadings, arguing that the statutory limitations period had expired on any action arising out of an alleged breach of contract or negligence in surveying the property. Regions moved for a summary judgment on the ground that Roberts’s claims against it were barred by the 10-year statute of limitations applicable to actions for breach of covenants in a deed. Roberts moved for a summary judgment against Steele on two grounds: (1) that the covenants contained in the statutory warranty deeds from Roberts to Steele were limited to actions “done or suffered” during the time that Roberts allegedly held title to the disputed property and, Roberts argued, it did nothing to cause a defect in the title during the time of its purported ownership; and (2) that the deeds from Roberts to Steele contained certain language disclaiming any covenants.

The trial court entered a judgment on the pleadings in favor of the surveyors because it appeared from the face of Regions’ third-party complaint that the action was barred by the statute of limitations. On Steele’s third-party complaint against Roberts, the trial court entered a summary judgment for Roberts. On Roberts’s third-party complaint against Regions, the trial court entered a summary judgment for Regions (but on a ground other than the statute-of-limitations ground argued by Regions). On McRaney’s complaint against Steele, the trial court entered a summary judgment in favor of all three Steele defendants on count 3 (alleging negligent hiring and supervision) and count 4 (alleging wanton hiring and supervision). As to counts 1 and 2 of McRaney’s complaint (alleging trespass and conversion), the trial court entered a summary judgment in favor of two of the Steele defendants — David F. Steele and Harvell Hines Steele. After entry of these judgments, the following claims remained to be adjudicated by the trial court: counts 1 and 2 of McRaney’s complaint against the third Steele defendant — J. Hudson Hines; count 5 of McRaney’s complaint against all three Steele defendants; and Steele’s counterclaim against McRaney. The last two claims both sought to quiet title to the disputed property.

The trial court entered an order making its judgments final pursuant to Rule 54(b), Ala. R. Civ. P. Steele appealed to the Alabama Supreme Court. Roberts cross-appealed. The supreme court transferred the appeals to this court pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Steele argues (1) that the trial court erred in determining that the covenants contained in the statutory warranty deeds from Roberts to Steele were limited to defects in title that occurred during the time that Roberts allegedly held title to the disputed property, and (2) that the deeds from Roberts to Steele contained certain language disclaiming any covenants. On cross-appeal, Roberts contends that Regions’ liability to Roberts is contingent on Roberts’s liability to Steele. Therefore, Roberts argues, if this court reverses the summary judgment for Roberts on Steele’s third-party complaint, then it must also reverse the summary judgment for Regions on Roberts’s third-party complaint. Because we affirm as to the appeal, it is unnecessary to address the issue raised on the cross-appeal.

Under Rule 56(c)(3), Ala. R. Civ. P., a trial court is authorized to enter a summary judgment when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Because the pertinent facts in this case are essentially undisputed, we review the trial court’s application of the law to those facts to determine whether the defendants and third-party defendants were entitled to judgments as a matter of law. See Carpenter v. Davis, 688 So.2d 256, 258 (Ala.1997). We review the trial court’s judgments under a de novo standard. See Hipps v. Lauderdale County Bd. of Educ., 631 So.2d 1023, 1025 (Ala.Civ.App.1993).

I. Disputed property for which McRaney claims record title

The disputed property is that part of the northeast quarter of Section 24, Township 12 North, Range 11 East, lying north of Cedar Creek (“the northeast quarter”) and the fractional northwest quarter of Section 24, Township 12 North, Range 11 East, lying north of Cedar Creek (“the northwest quarter”). McRaney has a deed to the northeast quarter; McRaney claims ownership of the northwest quarter by adverse possession. In this section we will discuss the issues that pertain to the disputed property in the northeast quarter.

It is undisputed that all deeds relevant to this appeal are statutory warranty deeds containing the words “grant, bargain, and sell.”

“In all conveyances of estates in fee where the words ‘grant, bargain, and sell’ appear, the deed is construed by statute as containing the following covenants of title: a covenant of seizin; a covenant against encumbrances; and a covenant of quiet enjoyment. [Ala.] Code 1975, § 35-4-271.”

St. Paul Title Ins. Corp. v. Owen, 452 So.2d 482, 485 (Ala.1984). See generally Jesse P. Evans III, Alabama Property Rights and Remedies § 4.4(a)(2d ed.1998). Section 35-4-271, Ala.Code 1975, provides:

“In all conveyances of estates in fee, the words ‘grant,’ ‘bargain,’ ‘sell’ or either of them, must be construed, unless it otherwise clearly appears from the conveyance, an express covenant to the grantee, his heirs and assigns, that the grantor was seised of an indefeasible estate in fee simple, free from incum-brances done or suffered by the grantor, except the rents and services that are reserved; and also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by the express words of such conveyance; and the grantee, his heirs, personal representatives, and assigns may, in any action, assign breaches, as if such covenants were expressly inserted.”

It is undisputed that the defect in Steele’s record title was created by the erroneous legal description of the property in the deed from Regions to Roberts. The same erroneous legal description was contained in the deed from Roberts to Steele.

Relying on St. Paul Title Insurance Corp. v. Owen, supra, the trial court determined that Roberts was not liable to Steele for breach of the implied covenants listed in § 35-4-271 because the defect in the title to the property Roberts conveyed to Steele existed when Roberts acquired the property from its grantor, Regions. In Owen, a title insurance company, as subro-gee of the remote grantee’s mortgagee, sued the original grantor, alleging a breach of the express covenants in its warranty deed, and also sued subsequent grantors, alleging a breach of the implied covenants in their statutory warranty deed. The Alabama Supreme Court held that the title insurance company could recover from the original grantor for breach of the express covenants contained in the warranty deed, but the title insurance company could not recover from the subsequent grantors on the covenants contained in their statutory warranty deed. The court stated:

“James and Cheryl Owen [the subsequent grantors] conveyed their complete, albeit non-existent interest, in the subject property to Dennis Carlisle [the remote grantee-mortgagor] by statutory warranty deed. By so doing, they merely warranted that they had not conveyed title to anyone else; that they had not allowed the property to become encumbered while they held purported title; and that they had not caused or suffered anyone to do anything that would interfere with the property’s quiet enjoyment by the grantee, the grantee’s heirs or assigns. Because the record indicates that James and Cheryl did nothing to affect the purported title they conveyed, they did not breach any of the covenants of title contained in the statutory warranty deed delivered to Dennis Carlisle and are therefore not liable to the appellant, as subrogee of [Dennis Carlisle’s mortgagee].”

Owen, 452 So.2d at 486. The court explained:

“Unlike the express covenants of title found in a general warranty deed, ... the implied covenants of title contained in a statutory warranty deed are more limited in effect.
“In the early case of Heflin v. Phillips, 96 Ala. 561, 11 So. 729 (1892), the Court noted: Tn construing this statute [predecessor of 35-4-271] this Court declared that the words “grant, bargain, sell” do not import an absolute general covenant of seizin against incumbrances and for quiet enjoyment, but that they amount to a covenant only against acts done or suffered by the grantor and his heirs.’ 96 Ala. at 562, 11 So. 730 (Emphasis added [in Owen]). See also Griffin v. Reynolds, 17 Ala. 198 (1850). More than twenty years after Heflin, the Court remarked: ‘All authorities hold that the covenants implied by statute are limited to the acts of the grantor and those claiming under him, and do not extend to defects of title anterior to the conveyance to him.’ Mackintosh v. Stewart, 181 Ala. 328, 333, 61 So. 956, 958 (1913).”

Owen, 452 So.2d at 485-86 (alterations added in Owen). See also Evans, Alabama Property Rights § 4.4(a) at 88 (stating that “[the] ... covenants [implied under § 35-4-271] do not obligate the grantor for defects or encumbrances arising or created by some person or entity other than the grantor; any defects or encumbrances arising or created prior to the acquisition by the grantor are excluded from the covenant”).

In the present case, Roberts acquired purported title to the disputed property by statutory warranty deed from Regions. Roberts subsequently conveyed the described property by statutory warranty deed to Steele. The defect in the title Roberts conveyed to Steele, i.e., the erroneous legal description of the property that was contained in Regions’ deed to Roberts, was clearly anterior to Roberts’s conveyance to Steele.

Steele argues that Owen is distinguishable because it did not involve the liability of a grantor to his immediate grantee. Instead, Steele points out, Owen dealt with whether a subrogee of the grantee’s mortgagee could recover against the grantor. That distinction has no legal significance in light of Owen’s clear holding that there is no recovery, under the implied covenants in a statutory warranty deed, against a grantor who did nothing while holding the purported title to affect the title he conveyed.

Steele argues that the trial court wrongly applied Owen because, Steele contends, § 35-4-271 should be construed so that only the covenant against encumbrances — and not the covenant of seisin— is limited to defects in title “done or suffered by the grantor.” That argument was made and rejected nearly 200 years ago in Gratz’ Lessee v. Ewalt, 2 Bin. 95 (Pa.1809), a Pennsylvania decision interpreting a Pennsylvania statute that was the progenitor of the Alabama statute, and later in Roebuck v. Duprey, 2 Ala. 535 (1841), an early Alabama decision construing the predecessor to § 35-4-271. In Roebuck, the Alabama Supreme Court, noting that the Alabama statute was “almost a literal transcript of a law of Pennsylvania enacted in 1715,” 2 Ala. at 539, stated:

“The question arising upon the construction of this section is, do the words, ‘grant, bargain, sell,’ import an absolute or general covenant of seisin, against incumbrances and for quiet enjoyment; or do they amount to a covenant only, against acts done or suffered by the grantor and his heirs. Though much circumlocution is employed by the Legislature, so as to obscure their meaning; yet we think the most natural interpretation, and the only one that consists with the established rules of construction, requires that the grantor should be held to covenant, that the estate undertaken to be conveyed was indefeasible as to any act of himself, The opposite conclusion can only be attained upon the hypothesis, that the second clause of the section provides for two distinct covenants, viz: 1. That the grantor stipulates with the grantee as against all the world, that ‘he is seized of an indefeasible estate in fee simple.’ 2. That he is seized of such an estate freed from in-cumbrances done or suffered by himself. If this idea were well founded, the second covenant would be wholly inoperative, as it would be embraced by the first, which is much more extensive. But this clause must be regarded as a unit, the latter words limiting and controlling those which precede them. The fitness of the thing, as well as the punctuation employed, very clearly [show] this.
“Again: the third clause serves further to [show], that the second must be restricted in the manner we have stated. It is limited in its objects in covenanting ‘for quiet enjoyment against the grantor, his heirs and assigns.’ Why thus restrict the covenant for quiet enjoyment, if it was intended by the first part of the second clause to make the words, ‘grant, bargain, sell,’ import a general warranty? It would destroy the harmony of the section; but all its parts operate together upon the construction we have given it.”

Roebuck, 2 Ala. at 589-40. The court continued:

“This precise question arose in the case of Lessee of Gratz v. Ewalt, 2 Bin. 95 [(Pa.1809)], upon the interpretation of the Pennsylvania statute. In that case, the Court held, that words, ‘grant, bargain, sell,’ did not, under the act of that State, amount to a general warranty, but merely to a covenant that the grantor has not done any act, nor created any incumbrance, whereby the estate granted by him may be defeated.”

2 Ala. at 540.

In Griffin v. Reynolds, 17 Ala. 198 (1850), Reynolds sued Griffin, his grantor, alleging a breach of the covenant created by the words “grant, bargain and sell” in a statutory warranty deed. The supreme court stated:

“[Although [Griffin] might not have had the title to the lands at the time he executed his deed [to Reynolds], and the title may have then been in another who still holds it, yet it does not follow that he (whoever he may be) acquired the title to the premises by the act of the grantor [Griffin], To show a breach of this covenant it must appear that the title has failed from the acts of the grantor. If this be not shown, the covenant is not shown to be broken, although the grantee may have been evicted; for non constat he may have been evicted on a title which was not created by the act of the grantor nor derived from him.”

Griffin, 17 Ala. at 200 (emphasis added). The court held that “[t]he act of 1808, respecting conveyances, creates a covenant by the use of the words ‘grant, bargain, and sell,’ but this covenant extends to acts done by the grantor or his heirs only.” 17 Ala. at 199. See also Parker v. Parker, 93 Ala. 80, 82, 9 So. 426, 427 (1890) (stating that if “[t]he imperfection in, or incum-brance upon the title to the land conveyed to [the grantee], was not done or suffered by ... his grantor_[but] by ... the former owner,” then there is no breach of the covenants in a statutory warranty deed).

We conclude that, as to the disputed property in the northeast quarter, the trial court correctly entered a summary judgment for Roberts on Steele’s third-party complaint alleging breach of the covenants in its statutory warranty deed. The trial court also correctly entered a summary judgment for Regions on Roberts’s third-party complaint. The trial court correctly determined that Regions’ statute-of-limitations defense was unavailing and that Regions could avoid liability to Roberts only if Roberts had no liability to Steele.

Roberts acquired title from Regions in 1989. Section 6-2-33(2), Ala.Code 1975, provides a 10-year statutory limitations period for “[a]ctions for the recovery of lands, tenements or hereditaments.” The covenant of seisin and the covenant against encumbrances are present covenants, meaning that they do not run with the land and are not enforceable against remote grantors. See Evans, Alabama Property Rights § 4.4(b)(i) and (iii). The statutory limitations period regarding a breach of the covenant of seisin and the covenant against encumbrances begins to run at the time of the conveyance, when the deed is executed and delivered. See Scofield v. Cheatham, 485 So.2d 722 (Ala.1986); Cook v. Exchange Realty & Mortg. Co., 374 So.2d 1339 (Ala.1979); Evans, Alabama Property Rights § 4.4(b)(iii). Roberts filed its third-party complaint against Regions in 2001, more than 10 years after the deed conveying the property from Regions to Roberts was executed and delivered. Therefore, the statute of limitations respecting a breach of the covenants of seisin and against encumbrances had already expired when Roberts filed its third-party action against Regions.

The covenant of quiet enjoyment, however, is an in futuro covenant, see St. Paul Title Ins. Corp. v. Owen, 452 So.2d at 485, that runs with the land and is enforceable against a remote grantor, see Self v. Petty, 469 So.2d 568 (Ala.1985). See generally Evans, Alabama Property Rights § 4.4(b)(iv). The statute of limitations with respect to an action for breach of the covenant of quiet enjoyment does not begin to run until there has been an eviction, actual or constructive. See St. Paul Title Ins. Corp. v. Owen, 452 So.2d at 485. “A constructive eviction may occur where there exists an outstanding title which could be asserted against the party in possession in a judicial proceeding.” Evans, Alabama Property Rights § 4.4(b)(iv) at 92. In the present case, there was no eviction until McRaney sued Steele, see St. Paul Title Ins. Corp. v. Owen, 452 So.2d at 485. Therefore, the statutory limitations period did not bar Roberts’s third-party complaint against Regions.

As the trial court pointed out, there are two ways in which Regions could be liable for a breach of the covenant of quiet enjoyment. First, Regions could be responsible for a breach of the covenant of quiet enjoyment because the erroneous legal description in its deed to Roberts (and in Roberts’s deed to Steele) resulted in Steele’s constructive eviction. Steele, however, made no claim against Regions. The only claim against Regions was by Roberts. As the trial court correctly determined, Roberts must be liable to Steele in order for Regions to be liable to Roberts. As we have already discussed, Roberts had no liability to Steele with regard to the disputed property in the northeast quarter because the alleged defect in the title was anterior to Roberts’s conveyance to Steele.

The second basis for determining that Regions could be hable for a breach of the covenant of quiet enjoyment concerns the disputed property in the northwest quarter that McRaney claims by adverse possession.

II. Disputed property that McRaney claims by adverse possession

McRaney did not plead or prove when its alleged adverse possession of the disputed property in the northwest quarter ripened into title. In order to avoid liability in a breach-of-covenant action, however, it is the grantor who has the burden of pleading and proving that the adverse possession was complete before he acquired his title. See Mackintosh v. Stewart, 181 Ala. 328, 333, 61 So. 956, 958 (1913) (holding that because the fact and effect of adverse possession are peculiarly within the knowledge of a grantor, the grantor has the burden of pleading and proving that any adverse possession ripened into title before the grantor’s term of ownership). Because none of the parties presented any evidence as to when McRa-ney’s alleged adverse possession may have ripened into title, that issue was a question of fact unsuited to disposition by a summary judgment.

Section 35-4-271 provides that the words “grant,” “bargain,” “or sell” in a statutory warranty deed include the implied covenants of seisin, against encumbrances, and for quiet enjoyment “unless limited by the express words of such conveyance.” (Emphasis added.) The trial court determined that it was unnecessary to decide when or if McRaney’s alleged adverse possession ripened into title because certain language in the deed from Roberts to Steele served to disclaim or limit the implied covenants. The deed contains the following language:

“SUBJECT, HOWEVER, TO: Any and all easements, reservations, restrictions, rights of way heretofore filed for record which affect said property; all mineral and mining rights heretofore reserved and not owned by grantor; any and all rights of parties in possession, variation in area or in measurements, boundary line disputes, roadways, unrecorded ser-vitudes or easements, any matters not of record including lack of access which would be disclosed by an accurate survey and inspection of the property, and easements or other uses of subject property not visible from the service.”

Citing a North Carolina decision, Kennedy v. Kennedy, 236 N.C. 419, 72 S.E.2d 869 (1952), Steele argues that because the foregoing limitations are not in the granting or habendum clauses of the deeds, but are located after the legal description, the limitations are repugnant to the granting clause and are therefore void. The trial court rejected that argument on four grounds: (1) the deed in Kennedy was a general warranty deed, not a statutory warranty deed; the limitation in Kennedy appeared immediately after the legal description of the property, whereas, in the present case, the legal description appeared on an attached “Exhibit A” and the limitations appeared “in the body of the main deed directly under the ‘see attached Exhibit A’ language referring to the description of the property”; (3) North Carolina decisions are not controlling authority in Alabama; and (4) the Alabama Supreme Court has, according to the trial court, “spoken to this issue.”

The trial court’s judgment quotes the following from Pardue v. Citizens Bank & Trust Co., 287 Ala. 50, 55-56, 247 So.2d 368, 372 (Ala.1971):

“The words ‘subject to’ have been construed by this and other courts. In Blackwell v. Burketts, 251 Ala. 233[, 235], 36 So.2d 326[, 328 (1948)], where the court, in construing the words ‘subject to the stipulations hereinafter set forth’ in a testamentary bequest, said

‘The natural and legitimate office of such proviso is to indicate that subsequent provisions would qualify these bequests.’

“In McCarter v. Crawford, 245 N.Y. 43[, 46-47], 156 N.E. 90, [91 (1927)] where the contract of sale was made ‘subject to such a state of facts as an accurate survey would show,’ the Court of Appeals said:

“ ‘... To take subject to means to be subordinated to these facts. If a survey showed that one of the buildings encroached upon adjoining property, the plaintiff agreed to take subject to, or under this state of facts. Unless we give this meaning to the provision, it might just as well have been left out of the contract....
“ ‘The encroachments claimed to have existed did not constitute a valid objection in view of the terms of sale under which the property was sold, which recited that it was to be taken subject to any state of facts which an accurate survey might show.’
“In Texaco, Inc. V. Pigott, D.C., 285 F.Supp. 458[, 468 (S.D.Miss.1964)], aff'd, 358 F.2d 723 (5th Cir.), it was held that the words ‘subject to’ as used in a deed mean ‘subservient to’ or ‘limited by and are ‘words of qualification showing the grantor’s intent not to grant an absolute title.’ ”

Steele has cited us to no convincing authority that would undermine the trial court’s reliance on Pardue. We conclude that the limitation in the deed subjected the conveyance to the rights of parties in possession and that there was no implied covenant with respect to those who might have been adversely possessing against the grantor. We therefore hold that the trial court correctly entered a summary judgment for Roberts with respect to the disputed property in the northwest quarter. Because the summary judgment for Roberts was correct, the summary judgment for Regions was also correct.

The judgments of the trial court are affirmed.

AFFIRMED.

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

      . For typical language in a warranty deed and in a statutory warranty deed, see St. Paul Title Insurance Co. v. Owen, 452 So.2d 482, 483 (Ala.1984), and Jesse P. Evans III, Alabama Property Rights and Remedies §§ 4.9(a) and 4.9(d)(2d ed.1998).


author: PITTMAN, Judge. MURDOCK, Judge,

text:
    Ellis PAULK v. William L. McCARTY, as trustee of the William L. McCarty, Jr. DMD PA Profit Sharing Plan and Trust. Gilbert J. Malish, Jr., et al. v. William L. McCarty, as trustee of the William L. McCarty, Jr. DMD PA Profit Sharing Plan and Trust.
    2011225 and 2011277.
    Court of Civil Appeals of Alabama.
    Feb. 28, 2003.

      Charles H. Volz III of Volz & Williams, P.C., Montgomery, for appellants Gilbert J. Malish, Jr., et al.
    R. Brooke Lawson III of Capell & Howard, P.C., Montgomery, for appellant Ellis Paulk.
    Jesse M. Williams III and Hendon B. DeBray of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee.
   PITTMAN, Judge.

These appeals concern the duty of a court to award litigation expenses to the defendant in a condemnation case when a final judgment denying condemnation has been entered.

In June 1998, William L. McCarty, acting as the trustee of the William L. McCarty, Jr. DMD PA Profit Sharing Plan and Trust (hereinafter “the condemnor”), filed a complaint in the Montgomery County Probate Court pursuant to § 18-3-1 et seq., Ala.Code 1975, seeking condemnation of a right of way across several parcels of land lying between property owned by the condemnor and a nearby public highway. Named as defendants were a number of parties who held ownership interests in the parcels over which the condemnor’s proposed right of way would run, including Ellis Paulk; Gilbert J. Malish, Jr.; and Betty Bonita Malish; a subsequent amendment to the condemnor’s complaint added as defendants Michael Malish and Debra Malish, who were tenants holding an option to purchase land owned by Gilbert Malish and Betty Malish. We will refer to these defendants (who are appellants in this court) as “Paulk” and “the Malishes.”

The probate court entered an order in September 1999 granting the condemnor a right of way and appointing three commissioners to assess the damages and compensation due to be awarded. The commissioners’ report proposed awards of $2,000 to Paulk and $12,000 to the Malish-es and the mortgagee of their property; the probate court then entered a final judgment in December 1999 awarding those amounts as damages and compensation for the condemnor’s taking of the right-of-way.

In January 2000, Paulk and the Malishes appealed from the probate court’s judgment to the Montgomery Circuit Court pursuant to § 18-1A-283, Ala.Code 1975, seeking a trial de novo as to the issues decided by the probate court. In the circuit court, the condemnor sought to amend the complaint so as to amend the legal description of the property subject to the right of way; however, Paulk objected to the proposed amendment, arguing that the circuit court was without jurisdiction to grant a right of way that differed from the right of way sought by the condemnor and granted in the probate court. In addition, both Paulk and the Malishes argued that a more convenient route between the con-demnor’s property and a public road existed than was proposed by the condemnor. After an ore tenus proceeding, the circuit court entered a judgment in January 2001 denying the relief requested by the con-demnor, concluding that the probate court had not considered other possibly more convenient routes and that the probate court had heard no evidence concerning the particular right-of-way that the con-demnor had sought in the proposed amended complaint in the circuit court. Although the circuit court denied the relief requested by the condemnor, that court “remand[ed] the entire matter for further consideration” by the probate court, stating that it “require[d] the [condemnor] to return to the Probate Court” should the condemnor wish to amend the complaint “to reflect a different easement or right of way than was originally sought in the Probate Court and for the Probate Court to consider ... other possible routes.”

In response to the circuit court’s reversal of the probate court’s judgment and its remanding the cause to the probate court for further proceedings, the condemnor filed a motion requesting that the circuit court vacate its order remanding the cause and to instead grant the right of way sought in the proposed amendment to the complaint filed in the circuit court; Paulk and the Malishes opposed that motion and filed motions seeking awards of their litigation expenses pursuant to § 18-1A-232, Ala.Code 1975. The circuit court denied each of those motions.

In December 2001, the condemnor filed a “motion for release of funds” in the circuit court. In that motion, the condem-nor alleged that $14,000, which had been paid to the clerk of the probate court as damages and compensation pursuant to the December 1999 judgment, had been transferred to the clerk of the circuit court. The motion averred that the con-demnor “ha[d] determined not to proceed further” in the probate court after remand; it requested that the $14,000 held by the circuit clerk be returned to the condemnor. In response to the condemnor’s motion, Paulk argued that the circuit court should not release the funds until it had entered a final judgment finally denying the relief requested, dismissing all claims, and vacating any rights the condemnor might have obtained in Paulk’s property. The Malish-es then filed a motion seeking involuntary dismissal of the condemnor’s action and another motion seeking an award of litigation expenses pursuant to § 18-1A-232.

On June 12, 2002, the circuit court entered a final judgment reciting the procedural history of the case and noting that its January 2001 order on appeal had, in denying the relief requested in the complaint, remanded the case to the probate court for further proceedings. The circuit court denied all relief requested in the condemnor’s complaint as amended and expressly found in favor of all of the defendants. The circuit court stated that its judgment “constitute[d] a determination ... that the [condemnor] is not entitled to the right of way sought over [the Malishes’ and Paulk’s] properties as described in the original Complaint or in the Complaint as Amended and constitutes a reversal of the order of the Probate Court”; it further stated that its judgment “eliminates the easement or right of way which was granted” by the probate court’s judgment “and renders it of no force and effect.” The $14,000 paid into court was directed to be returned to the condemnor.

Two days after the circuit court’s final judgment, Paulk filed a motion for an award of litigation expenses. The condem-nor filed responses in opposition to the motions of Paulk and the Malishes for litigation expenses, contending that the relief requested was outside the scope of § 18-1A-232 and was precluded by the circuit court’s denial of an award of litigation expenses immediately following the remand of the case to the probate court in 2001. The circuit court entered an order on August 5, 2002, denying the motions for litigation expenses, concluding that it had never entered a final judgment on the merits.

Paulk and the Malishes filed separate notices of appeal from the circuit court’s order denying litigation expenses. The Alabama Supreme Court transferred the appeals to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

As we noted in Williams v. Deerman, 724 So.2d 18, 20 (Ala.Civ.App.1998), the same principles and procedures set forth in the Alabama Eminent Domain Code, § 18-1A-1 et seq., Ala.Code 1975, governing eminent-domain actions in general govern actions brought by private parties to condemn a right-of-way easement pursuant to § 18-3-1 et seq., Ala. Code 1975. With respect to the issue raised by the parties in this ease, § 18-1A-232, a part of the Eminent Domain Code, provides for an award in certain cases of “litigation expenses,” which would include reasonable attorney, appraisal, and engineering fees necessary to participation in probate-court or circuit-court condemnation proceedings. See § 18-1A-3(12), Aa.Code 1975. Section 18-1A-232 provides:

“(a) The court shall award the defendant his litigation expenses, in addition to any other amounts authorized by law, if the action is wholly or partly dismissed for any reason.
“(b) If the scope of the property to be taken is reduced as the result of (1) a partial dismissal, (2) a dismissal of one or more plaintiffs, or (3) a final judgment determining that the plaintiff cannot take part of the property originally sought to be taken, the court shall award the defendant the portion of his litigation expenses attributable to the property within the scope of the reduction.
“(c) Costs and litigation expenses authorized by this section may be claimed, taxed, and awarded under the same procedures that apply to costs in other civil actions.”

The Commentary to § 18-1A-232 notes that “[t]his section requires the plaintiff to pay defendant’s litigation expenses in the event of a dismissal of the action, in whole or in part, or a judgment that it [, i.e., the plaintiff] did not have the right to take all or part of the subject property.” (Emphasis added).

In Carroll v. Ward, 814 So.2d 287 (Ala.Civ.App.2001), this court concluded that the phrase “shall award” in § 18-1A-232 was unambiguous and that a litigation-expense award was mandatory when a condemnation action brought pursuant to § 18-3-1 et seq., Ala.Code 1975, had been terminated by the entry of a judgment by a circuit court dismissing a de novo appeal from a probate-court condemnation judgment. Here, the circuit court’s January 2001 order, although identified as a reversal of the probate court’s judgment, remanded the case to the probate court for further proceedings, “requiring] the [con-demnor] to return to the Probate Court” in order to make any desired amendments to the condemnation complaint. Only in June 2002, after the condemnor had elected not to pursue the matter further in the probate court and sought a return of moneys paid into court to satisfy the probate court’s condemnation judgment, did the circuit court fully dispose of the case by entering a final judgment declaring that the condemnor was not entitled to the right of way sought in the original and amended complaints. Thus, the condem-nor correctly argues that the judgment under review here differs from that in Carroll in that the circuit court in this case did not dismiss the condemnation action.

However, while the circuit court’s judgment does not amount to a dismissal under § 18-1A-232(a), that judgment clearly did reduce “the scope of the property to be taken” from that sought in the original complaint and authorized by the probate court so as to implicate § 18-lA-232(b). Indeed, by its terms, the circuit court’s final judgment “constitutes a determination ... that the [condemnor] is not entitled to the right of way sought” in either the original or the amended complaints. Stated another way, in the words of the Commentary to § 18-1A-232, the circuit court in this case has entered a judgment that the condemnor “did not have the right to take all ... of the subject property.” Thus, in this case, § 18-lA-232(b) mandates an award to the Malishes and Paulk of “the portion of [their] litigation expenses attributable to the property within the scope of the reduction,” which would necessarily include all of their “litigation expenses” because the circuit court reduced the property to be condemned to nothing.

Based upon the foregoing facts and authorities, we conclude that the circuit court erred in denying the motions filed by the Malishes and by Paulk seeking an award of litigation expenses. The circuit court’s order denying those motions is reversed. The cause is remanded for the circuit court for further proceedings, to include the entry of an order awarding litigation expenses to the Malishes and to Paulk in compliance with § 18-1A-3(12) and § 18-1A-232. The appellants’ request for an award of attorney fees on appeal is denied.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

MURDOCK, J., concurs specially.

MURDOCK, Judge,

concurring specially.

In concurring in the majority opinion, I note that I do not read that opinion as commenting upon (a) whether the circuit court’s conclusion that it could not entertain an amendment to the condemnor’s complaint was correct or (b) whether the circuit court had the authority, as purportedly exercised in its January 2001 interlocutory order, to remand this cause to the probate court.

      . We note that the definition of "litigation expenses” contained in the Eminent Domain Code contains the qualifiers “reasonable” and "necessary” in identifying attorney, appraisal, and engineering fees as within its scope. See § 18 — 1A—3(12), Ala.Code 1975. In concluding that § 18-lA-232(b) mandates an award of litigation expenses in this case, we express no opinion at this time regarding what fees may or may not be “reasonable” and "necessary.” That is a matter for the circuit court, on remand, to decide in the first instance.


author: PER CURIAM.

text:
    Milton LUCAS III v. STATE of Alabama.
    CR-02-0742.
    Court of Criminal Appeals of Alabama.
    Feb. 7, 2003.
    Milton Lucas III, pro se.
    Submitted on appellant’s brief only.
   PER CURIAM.

The appellant, Milton Lucas III, appeals the denial of his petition for postconviction filed pursuant to Rule 32, Ala.R.Crim.P. On October 16, 2002, Lucas filed a postcon-viction petition attacking four different convictions; the convictions occurred in 1990 and 1993. The trial court, after considering the merits, denied the petition; this appeal followed. According to Rule 32.1, Ala.R.Crim.P., as recently amended, the trial court’s ruling is due to be reversed.

Effective August 1, 2002, Rule 32.1, Ala.R.Crim.P., was amended to provide as fohows, “A petition that chaEenges multiple judgments entered in more than a single trial or guilty-plea proceeding shall be dismissed without prejudice.” (Emphasis added.)

“Our supreme court has consistently held that the word ‘shaE’ is mandatory when used in a rule promulgated by that court. See Waites v. University of Alabama Health Services Foundation, 638 So.2d 838 (Ala.1994); Ex parte Head, 572 So.2d 1276 (Ala.1990); Jefferson County Commission v. F.O.P., 543 So.2d 198 (Ala.1989).”

Martin v. Martin, 637 So.2d 901, 902 (Ala.Civ.App.1994).

The trial court should have dismissed Lucas’s petition without prejudice instead of ruling on the merits of the petition. According to Rule 32.2, Ala.R.Crim.P., the trial court’s ruling is due to be reversed and remanded to the circuit court for that court to vacate its judgment denying Lucas’s Rule 32 petition and to dismiss the petition without prejudice.

REVERSED AND REMANDED.

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

      . Before this rule was amended, this Court had several approaches to a Rule 32 petition that attacked multiple convictions. See Heulett v. State, 842 So.2d 741 (Ala.Crim.App.2002) (considered the merits of the petition as to all convictions challenged); Reese v. State, 796 So.2d 436 (Ala.Crim.App.2001) (considered the merits of one conviction and vacated lower court's judgment as to other conviction); James v. State, 781 So.2d 361 (Ala.Crim.App.2000), and Johnson v. State, 755 So.2d 74 (Ala.Crim.App.1999) (reversed the lower court's ruling on the petition and directed the court to give the defendant the opportunity to file separate petitions attacking each separate conviction). The amendment to Rule 32.1 resolves the problem created by multiple approaches.