author: YATES, Presiding Judge. MURDOCK, Judge, PITTMAN, Judge,

text:
    NATIONWIDE INSURANCE COMPANY v. Lynette NICHOLAS, individually and as the natural mother of Kurk L. Nicholas, Jr., a deceased minor.
    2020159.
    Court of Civil Appeals of Alabama.
    June 20, 2003.

      Lynn Hare Phillips of Hare, Clement & Duck, P.C., Birmingham, for appellant.
    Douglas J. Fees and Joe A. Macon III of Douglas J. Fees, P.C., Huntsville, for ap-pellee.
   YATES, Presiding Judge.

On September 20, 2001, Lynette Nicholas, individually and as the natural mother of Kurk L. Nicholas, Jr., her deceased son, sued Nationwide Insurance Company, seeking underinsured-motorist benefits. Nicholas also alleged negligence and wantonness based, she claimed, on Nationwide’s failure to comply with § 32-7-23, Ala.Code 1975, the Alabama Uninsured Motorist Statute.

On August 19, 2002, Nationwide filed a motion for a summary judgment and a statement of undisputed facts, arguing that Nicholas’s husband was the primary policyholder and that he had expressly rejected uninsured-motorist coverage. On September 4, 2002, Nicholas filed a brief in opposition to Nationwide’s summary-judgment motion, arguing that a genuine issue of material fact existed as to whether she had waived her right to uninsured-motorist coverage. Following a hearing, the trial court entered the following order:

“This matter came before the court for a Pretrial Conference and hearing on Defendant Nationwide Insurance Company’s Motion for Summary Judgment. After hearing argument on the Summary Judgment Motion, and after being apprised by the parties that they waive their right to a jury trial, and that there are no genuine facts in dispute, and that the dispositive issue in the case is a legal one, due to be decided by the Court, and having considered the positions of the parties as set forth in the record and in oral argument presented by the parties;
“It is therefore ordered, adjudged, and decreed that the defendant’s Motion for Summary Judgment is denied and, further, that a Final Judgment is, hereby entered in favor of the Plaintiffs in the amount of $40,000.00. Costs are taxed to the Defendant.”

No postjudgment motions were filed; Nationwide filed a notice of appeal on November 14, 2002.

It appears that the following facts are undisputed: Nationwide issued an automobile insurance policy listing Kurk Nicholas, Sr., and Lynette Nicholas, as the named insureds. The policy provided that 19-year-old Kurk Nicholas, Jr., was qualified for “family” coverage because, under the policy, “residents of the same household, [the policyholder’s] spouse, the relatives of either and any other person under the age of 21 in the care of any of the foregoing including the Policyholder” were provided with protection. On October 29, 1999, Kurk Nicholas, Sr., renewed the policy and signed a statement rejecting uninsured-motorist coverage; that policy was still in effect at the time of the accident in which Kurk Nicholas, Jr., was killed. Three automobiles were insured under the policy. It is undisputed that Lynette Nicholas did not sign a statement. On June 9, 2001, Kurk Nicholas, Jr., was struck by an un-derinsured intoxicated driver and was killed. The policy provided $20,000 per person and $40,000 per accident in uninsured-motorist coverage.

Section 32-7-23, Ala.Code 1975, provides, in part:

“(a) No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in subsection (c) of Section 32-7-6, under provisions approved by the Commissioner of Insurance for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, that the named insured shall have the right to reject such coverage; and provided further, that unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with the policy previously issued to him by the same insurer.”

The sole issue on appeal is, when a policy lists more than one named insured, must each named insured expressly reject uninsured-motorist coverage or is the rejection by one of the named insureds effective as a rejection of such coverage on behalf of all the named insureds? Our supreme court has held “a policy exclusion that ‘is more restrictive than the uninsured motorist statute ... is void and unenforceable.’ ” Peachtree Cas. Ins. Co. v. Sharpton, 768 So.2d 368, 370 (Ala.2000)(quoting Watts v. Preferred Risk Mut. Ins. Co., 423 So.2d 171, 175 (Ala.1982)). The Uninsured Motorist Statute “lays down a rule of construction requiring courts to interpret all motor vehicle liability insurance policies as providing the statutory coverage unless an agreement to reject on the part' of the named insured is in evidence.” Insurance Co. of North America v. Thomas, 337 So.2d 365, 369 (Ala.Civ.App.1976).

In State Farm Mutual Automobile Insurance Co. v. Martin, 292 Ala. 103, 289 So.2d 606 (1974), the issue was whether the husband, one of the named insureds, was covered by the provisions of his State Farm policy where his wife had signed a statement rejecting such coverage. The husband’s daughter had been injured when she was struck by an uninsured motorist. State Farm declined the husband’s uninsured-motorist coverage because of the wife’s express rejection of such coverage. The evidence in the record indicated that the Alabama Department of Insurance had sent a memorandum to insurance companies requiring that rejections of uninsured-motorist coverage “ ‘shall be in writing signed by the named insured.’ ” 292 Ala. at 106, 289 So.2d at 609 (emphasis omitted). State Farm had preprinted forms providing for such a rejection, which the wife signed. Both .the husband and the wife were listed in the policy as named insureds. The husband sued State Farm, seeking a declaratory judgment on the. question of coverage. The trial court held that the husband was covered.

Title 36, § 74(62a), Ala.Code 1940 (Re-comp.1958), the predecessor to § 32-2-37, was in effect-when Martin was decided; it provided, in pertinent part:

• “No automobile liability ... policy ... shall be delivered or issued ... in this state ... unless coverage is provided therein ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, that the named insured shall have the right to reject such coverage; and provided further, that unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with the policy previously issued to him , by the same insurer.”

Our supreme court in Martin held that the trial court did not err in concluding that the daughter was covered. The supreme court held that the general provision of the statute requiring that uninsured-motorist- coverage be offered was qualified by a proviso that the “named insured” shall have the right to reject such coverage and that “[a] proviso limits or modifies the enacting clause, and should be strictly construed in accord with the general purpose of the enactment.” 292 Ala. at 105, 289 So.2d at 608. In the present case, where Lynette Nicholas, as a “named insured,” did not reject the uninsured-motorist coverage existing under the family policy, such coverage continued in force as to her, notwithstanding the later rejection of that coverage by Kurk Nicholas, Sr. Section 32-7-23 does not authorize one named insured to reject uninsured-motorist coverage on behalf of another named insured.

Nationwide cites Universal Underwriters Insurance Co. v. Thompson, 776 So.2d 81 (Ala.2000), McCullough v. Standard Fire Insurance Co. of Alabama, 404 So.2d 687 (Ala.1981), and Safeway Insurance Co. v. Hambrick, 723 So.2d 93 (Ala.Civ.App.1998), as authority for the proposition that a signed, written rejection of uninsured-motorist coverage by one named insured is effective to remove uninsured-motorist coverage from the entire automobile policy. However, each of those cases is easily distinguishable. Thompson involved a garage policy issued to several named insureds. The insurance company provided the insureds with an “Elective Options Form,” which provided boxes to be “checked” under different columns and headings to indicate rejection of uninsured-motorist coverage. Our supreme court held that, because the form was ambiguous, a question of fact existed as to whether the “checked” boxes on the form indicating a rejection of uninsured-motorist coverage except as to certain individuals or whether they indicated that such coverage was not rejected but that the amount of coverage for certain individuals was increased. Both McCullough and Hambrick involved insurance policies that did not provide any coverage (i.e., neither liability nor uninsured-motorist coverage) for the named insured’s child.

Other jurisdictions have addressed the issue whether, when an insurance policy lists more than one individual as a named insured, a written rejection of uninsured-motorist coverage by one of the named insureds is effective as a rejection on behalf of all of the named insureds. In Plaster v. State Farm Mutual Automobile Insurance Co., 791 P.2d 813 (Okla.1989), the Oklahoma Supreme Court answered a certified question from a federal district court on this issue. In Plaster, James Plaster and Patricia Plaster, both named insureds, obtained automobile insurance. However, only Mr. Plaster executed a written rejection of uninsured-motorist coverage. Their son, who was an “additional” insured under the policy, was killed in a one-car accident while riding as a passenger. In 1981, the Oklahoma Uninsured Motorist Statute, Okla. Stat. tit. 36, § 3636 (1981), provided:

“(F) The named insured shall have the right to reject such uninsured motorist coverage in writing, and except that unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.”

The Plaster court stated:

“Because Patricia L. Plaster is a ‘named insured’, the only method provided by statute for waiver of uninsured motorist coverage is by written rejection, not by the written rejection of another ‘named insured’, but by the written rejection of Patricia L. Plaster. The statute does not authorize Mr. Plaster to reject coverage for Mrs. Plaster when they are both named insureds. Failure of the insurance company to obtain a written rejection required by 36 O.S.1981, § 3636(F) resulted in the inclusion of uninsured motorist coverage as part of the policy by operation of law. Beauchamp v. Southwestern Nat. Ins. Co., 746 P.2d 673, 676 (Okla.1987).
“We therefore hold that where an automobile insurance policy lists more than one individual as a ‘named insured’, a written rejection of uninsured motorist coverage by less than all named insureds is not a complete rejection of that coverage within the four corners of the policy. However, such partial rejection does operate to estop an individual named insured who signs the rejection from asserting the uninsured motorist provisions of the policy.”

791 P.2d at 814.

The Supreme Court of Iowa in Preferred Risk Insurance Co. v. Cooper, 638 N.W.2d 717 (Iowa 2002), held that the wife, a named insured, did not reject uninsured/underinsured-motorist coverage under the family automobile policy and was entitled to that coverage despite the fact that her husband had declined such coverage. The wife was permanently injured and the parties’ daughter was killed in an automobile collision. The trial court concluded that as a matter of law underin-sured-motorist coverage must be provided to the wife because the policy included such coverage and she did not join in a subsequent declination of that existing coverage as required by Iowa’s Uninsured Motorist Statute, Iowa Code § 516A.1 (1997). The Iowa Supreme Court stated:

“In seeking reversal of the district court’s judgment, [the insurer] relies on decisions from other jurisdictions, which have similar statutes, holding that in acquiring automobile insurance one spouse has the right to decline underin-sured-motorist coverage on behalf of the other spouse. Those decisions are Messerly v. State Farm Mutual Automobile Insurance Co., 277 Ill.App.3d 1065, 214 Ill.Dec. 794, 662 N.E.2d 148, 149 (1996), and Hall v. Allstate Insurance Co., 53 Wash.App. 865, 770 P.2d 1082, 1083 (1989). The premise on which' these cases were decided is that, if A relies on B to acquire insurance for A, A only receives the insurance for which B arranges.
“We are convinced that the rationale of the Illinois and Washington appellate courts is flawed. If the insurance that is being acquired is subject to a statute mandating that the insurer include certain specified coverages in all policies unless expressly declined in writing by the named insured, a person relying on another- to make him or her a named insured may reasonably expect that the coverages obtained will be those mandated-by law. That is the conclusion reached by the Oklahoma Supreme Court in Plaster v. State Farm Mutual Automobile Insurance Co., 791 P.2d 813, 814-15 (Okla.1989)(when statute requires written rejection by named insured, rejection by one insured was inoperative as to another insured who had not executed a written rejection).
“There is another reason why the rationale of the Illinois and Washington-appellate courts is inapposite. That rationale is not relevant here because the situation involves a rejection of existing insurance rather than .the acquisition of new insurance. We agree with the district court’s conclusion that, because [the wife] did not reject the underinsured motorist coverage existing under the family auto policy, that coverage continued in force as to her, notwithstanding [the husband’s] later declination of such coverage.”

638 N.W.2d at 719.

In Hall v. Allstate Insurance Co., 53 Wash.App. 865, 770 P.2d 1082 (1989), the wife brought an action, seeking a declaration that she was entitled to uninsured-motorist coverage despite her husband’s waiver of such coverage. The Washington appellate court held that the husband had the right to waive such coverage for both himself and his wife. Hall, however, is distinguishable because Washington is a community-property state. The wife argued that the Washington Uninsured Motorist Statute manifested a “strong public policy in favor of protection of injured persons through [uninsured-/underinsured-motorist (“UIM”)] coverage.” 53 Wash. App. at 867, 770 P.2d at 1084. The court stated:

“It is true that the legislature provided special treatment for this term of the insurance coverage by requiring it to be specifically rejected. However, if the legislature wished to mandate UIM coverage, it could have done so. Nothing in the statutory language suggests any change in or restriction on the normal principles of agency and community property management when dealing with waivers of UIM coverage.”

Id.

Messerly v. State Farm Mutual Automobile Insurance Co., 277 Ill.App.3d 1065, 662 N.E.2d 148, 214 Ill.Dec. 794 (1996), is also distinguishable from the present case. In Messerly, the husband obtained automobile insurance on behalf of himself and his wife. Under Illinois law, a certain amount of uninsured-motorist coverage is required and the insurer is required to offer additional uninsured-motorist coverage to all named insureds under a policy. The husband declined such additional coverage. The wife was later involved in an accident and incurred damages in excess of

the coverage her husband selected. The offer of the additional coverage was made at the time the husband and wife applied for insurance.

The dissent raises the issue whether Lynette Nicholas was entitled to $40,000 in damages. Nationwide has not raised this issue on appeal. Therefore, Nationwide is deemed to have waived any argument it might have raised with regard to the amount of damages recoverable by Lynette Nicholas. Robino v. Kilgore, 838 So.2d 366 (Ala.2002), and Boshell v. Keith, 418 So.2d 89 (Ala.1982). In addition to Nationwide’s having waived that argument, we note that the Missouri case cited by the dissent is distinguishable from the present case. In Livingston v. Omaha Property & Casualty Insurance Co., 927 S.W.2d 444 (Mo.Ct.App.1996), the mother sued the insurance company seeking compensation under her uninsured-motorist coverage because of the death of her daughter, who was struck and killed by an uninsured motorist. The daughter was not a named insured under the mother’s policy, and, because the daughter owned her own automobile and was insured with another company, she was not covered under any other terms of the mother’s policy. Uninsured-motorist coverage in wrongful-death actions is intended to provide indemnity for damages resulting from an insured’s wrongful death for persons who may be entitled to bring such an action on behalf of the insured. In Livingston, the daughter was not covered under the mother’s policy, and, in fact, the mother had settled with the daughter’s insurance company. Here, Kurk Nicholas, Jr., was covered under the Nicholases’ policy.

In the present case, the Alabama Uninsured Motorist Statute provides that the “named insured” has the right to reject uninsured-motorist coverage. Both Lynette Nicholas and Kurk Nicholas, Sr., are named insureds. Lynette Nicholas did not reject uninsured-motorist coverage as is required by the Uninsured Motorist Statute; therefore, she is entitled to uninsured-motorist coverage under the terms of the uninsured-motorist provisions of the policy. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

CRAWLEY, J., concurs.

MURDOCK, J., concurs in the result.

THOMPSON, J., concurs in the result only.

PITTMAN, J., dissents.

MURDOCK, Judge,

concurring in the result.

The sole issue presented to this court in the present case is whether Alabama law (namely § 32-7-23, Ala.Code 1975) authorizes one named insured to reject uninsured-motorist coverage on behalf of another named insured; I agree with the main opinion that it does not. In so doing, however, I note (a) that the record in this case does not present to this court the different question of whether, under principles of agency, a named insured may authorize another named insured to reject uninsured-motorist coverage on his or her behalf and (b) that I am not persuaded that State Farm Mutual Automobile Insurance Co. v. Martin, 292 Ala. 103, 289 So.2d 606 (1974), is dispositive of this different question.

PITTMAN, Judge,

dissenting.

As the main opinion correctly notes, although courts in other states have construed uninsured-motorist (“UM”) statutes so as to permit any named insured to reject such coverage on behalf of all insureds, the Alabama Supreme Court, in State Farm Mutual Automobile Insurance Co. v. Martin, 292 Ala. 103, 289 So.2d 606 (1974), effectively construed that portion of § 32-7-23(a), Ala.Code 1975, that provides for rejection of UM coverage by “the named insured” (emphasis added), as actually mandating rejection of such coverage by all persons listed as “named insureds” in the policy in order for that rejection to be deemed effective as to all named insureds. As I read Martin, because Lynette Nicholas, an additional “named insured” under the Nationwide policy, was not offered an opportunity to reject UM coverage, she is deemed “insured” under the UM statute as to claims she might assert on her own behalf based upon the loss of Kurk Nicholas, Jr.

That said, however, I cannot agree that Martin supports the award of $40,000 to Lynette Nicholas. At the time of the automobile collision that killed Kurk Nicholas, Jr., the Nationwide policy afforded no UM coverage because Nationwide, at the written direction of Kurk Nicholas, Sr., in October 1999, had removed that coverage. Even when the policy provided for UM coverage, that coverage was limited to the statutory mínimums of $20,000 per person and $40,000 per accident. See § 32-7-6, Ala.Code 1975. Thus, the trial court’s award to Lynette Nicholas can only be justified in this case if she can properly recover from Nationwide the statutory “per accident” limit of coverage in both her individual capacity and as a successor to any rights of recovery available to Kurk Nicholas, Jr.

Although minimum coverage for “bodily injuries]” caused by an uninsured motorist is legally imputed under § 32-7-23 when the named insured has not rejected such coverage, Lynette Nicholas, in her individual capacity, has suffered no bodily injuries; at most, she has suffered only a loss of her son’s services, which falls outside the scope of § 32-7-23. See Weekley v. State Fatm Mut. Auto. Ins. Co., 537 So.2d 477, 480 (Ala.1989) (noting that “[a] consortium claim does not constitute a claim for bodily injury”); Livingston v. Omaha Prop. & Cas. Ins. Co., 927 S.W.2d 444, 445 (Mo.Ct.App.1996) (holding that an insured mother was not entitled under a similarly worded UM statute to recover UM benefits for the death of her daughter in an automobile collision, even though the mother was “legally entitled” to bring a wrongful-death claim). Moreover, because § 32-7-23(a) provides that UM coverage may be rejected by “the named insured,” I would hold that Kurk Nicholas, Jr., had he survived the automobile collision that claimed his life, would have been bound, as an additional insured, by the rejection of UM coverage executed by his father, a named insured, and, therefore, would not have been entitled to recover from Nationwide. “Requiring offers of [UM] coverage to be made to all insureds under automobile policies would be contrary to reasonable business practices from which both insurers and consumers benefit.” Messerly v. State Farm Mut. Auto. Ins. Co., 277 Ill.App.3d 1065, 1070, 662 N.E.2d 148, 151, 214 Ill.Dec. 794, 797 (1996). In short, Lynette Nicholas is not entitled under either capacity in which she has sued Nationwide to recover damages based upon the loss of Kurk Nicholas, Jr.

Because I conclude that Lynette Nicholas is entitled to recover nothing from Nationwide under the facts of this case, which is precisely what Nationwide contends on appeal, I respectfully dissent.

      . The underinsured driver was also insured by Nationwide, and it appears that the Nich-olases were paid his policy limits of $25,000.

      . Wash. Rev.Code § 26:16.030 (2002), provides, as it did in 1989, in pertinent part that "[e]ither spouse, acting alone, may manage and control community property.”

      . While Lynette Nicholas may have incorrectly styled her complaint as an individual claim, it is also properly styled as a representative claim on behalf of her son; moreover, it appears that "stacking” is permissible under § 32-7-23(c).
      "The Uninsured Motorist Statute, [Ala.] Code 1975, § 32-7-23, absent rejection by the named insured, mandates uninsured motorist coverage for the protection of persons insured under a motor vehicle liability policy. As heretofore construed by this Court, the statute mandates stacking in the case of the named or designated insureds as well as relatives living in the same household where such persons are included in the policy's definition of 'insureds’ for purposes of liability. These persons are entitled to stack the available coverages because their right to coverage under the primary liability coverage is not limited to their use or occupancy of a vehicle insured under the policy. A clause limiting their rights of uninsured motorist coverage to the minimum coverage available on only one insured vehicle would be an unreasonable derogation of the mandate of the statute, because additional premium charges would not afford them any additional benefits.”

        Holloway v. Nationwide Mut. Ins. Co., 376 So.2d 690, 694-95 (Ala.1979).


source: Caselaw Access Project

author: MURDOCK, Judge. YATES, Presiding Judge,

license: Public Domain

text:
    M.C. v. L.J.H.
    2011043.
    Court of Civil Appeals of Alabama.
    June 20, 2003.

      Regina Rose Hudson, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Jennifer M. Bush, asst. atty. gen., Department of Human Resources, for appellee.
   MURDOCK, Judge.

This is an appeal from the denial of a motion to set aside a paternity judgment.

Although the record before us is sparse, it indicates the following. On April 17, 1992, the State of Alabama, on behalf of L.J.H., filed a complaint in the Jefferson Juvenile Court requesting that M.C. be adjudicated the father of N.C.H. and that M.C. be ordered to pay child support. A hearing was held on May 27, 1992, and it appears from the record that M.C. denied paternity and requested paternity testing. That same day, the court entered an order that, among other things, directed the parties to submit to paternity testing and reset the ease for trial on August 10, 1992.

M.C. did not appear for trial on August 10, 1992, and the court reset the case “for blood test and/or trial” on September 14, 1992. M.C. failed to appear for trial on September 14, 1992, and the State moved to amend the complaint and for a default judgment. The trial court entered an order that same day, stating, in pertinent part:

“Case being set for trial and [M.C.] failing to appear, State’s motion to amend petition and application for default and final default judgment hereby granted. Petition hereby amended as follows, Defendant’s name changed to [M.Coa., aka M.Col.]. Final default judgment hereby entered in favor of State of Alabama] ex reí. [L.J.H.] against [M.Coa., aka M.Col.] See attached order.”

The default judgment referenced in the above-quoted order found “[M.Coa., aka M.Col.]” to be the father of N.C.H. and ordered him to pay child support.

Nine years later, on October 5, 2001, L.J.H. filed a contempt petition against M.C., requesting that the court enter a judgment against M.C. for accrued child-support arrearages, plus interest, and seeking the entry of an income-withholding order. On February 13, 2002, the juvenile court entered an order that stated: “M.C. pleads true to contempt. [M.C.] found in contempt. [M.C.] shall comply with all prior court orders. Case reset in 45 days. The clerk shall correct the defendant’s name to [M.Col.]”

On March 25, 2002, M.C. filed multiple motions in open court pursuant to Rule 60(b), Ala. R. Civ. P. The court denied those motions on April 29, 2002. M.C. appealed the judgment of the juvenile court on his Rule 60(b) motions to the circuit court. The circuit court entered an order on June 7, 2002, stating, in pertinent part:

“THIS MATTER being presented to the Court on Notice of Appeal from [Juvenile Court] (CS 92-000526), and upon due consideration, the Court is of the opinion that this cause should be transferred to the Court of Civil Appeals under the authority of Rule 28(D) of the Alabama Rules of Juvenile Procedure. Accordingly, it is therefore,
“ORDERED, ADJUDGED, AND DECREED by the Court:
“2. That there was no evidentiary hearing below, the [Juvenile Court] simply ruling on Motion, without taking testimony. And, the Appellant shall prepare a statement of the proceedings from the best available means, including his recollection, pursuant to Rule 10(d) of the Alabama Rules of Appellate Procedure, or in the alternative, an agreed statement as to the record on appeal pursuant to Rule 10(e) of the Alabama Rules of Appellate Procedure.”

The case was then transferred to this court.

M.C. argues on appeal that the juvenile court erred in denying his Rule 60(b) motion because, he claims, the 1992 judgment was void and because, he also claims, “rare circumstances” existed.

Although neither party has raised the issue of this court’s jurisdiction over this appeal, we note that “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)).

M.C.’s Rule 60(b) motions were filed in the family court of Jefferson County and docketed with a “CS” number, which indicates a juvenile-court child-support matter. Ala.Code 1975, § 26-17-10(a); State ex rel. Provitt v. Coleman, 821 So.2d 1015, 1019 (Ala.Civ.App.2001). For this reason, this proceeding is governed by the Rules of Juvenile Procedure instead of the Rules of Civil Procedure. C.D.W. v. State ex rel. J.O.S., 852 So.2d 159 (Ala.Civ.App.2002); R.H. v. J.H., 778 So.2d 839 (Ala.Civ.App.2000).

Rule 28(A)(1), Ala. R. Juv. P., provides that an appeal from a final judgment entered by a juvenile court is reviewable by this court if:

“(a) A record certified as adequate by the juvenile court judge or a stipulation of facts is available and the right to a jury trial has been exercised or waived by all parties entitled thereto; or,
“(b) The parties stipulate that only questions of law are involved and the juvenile court certifies the questions.”

Our review of the record reveals (1) that the juvenile court did not certify the record as adequate and there is no stipulation of facts or waiver of the right to a jury trial, and (2) that the parties did not stipulate that only questions of law are involved and there is no certification of questions of law by the juvenile court. Accordingly, because neither prong of Rule 28(A)(1) has been satisfied, this court does not have jurisdiction to consider M.C.’s appeal.

In light of the foregoing, we conclude that the circuit court erred in transferring the appeal to this court. Pursuant to Rule 28(D), Ala. R. Juv. P., we transfer the appeal back to the circuit court for a trial de novo.

APPEAL TRANSFERRED.

CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

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

YATES, Presiding Judge,

concurring in the result.

I agree that this appeal should be transferred to the circuit court. “[T]he denial of a rule 60(b)[, Ala. R. Civ. P.,] motion by a district court is a final order or judgment which, pursuant to § 12-12-71, [Ala.Code 1975,] must on its face be appealed to the circuit court.” Terry v. Frisbee, 404 So.2d 345, 346 (Ala.Civ.App.1981). Section 12-12-71 sets out two exceptions, § 12-12-72 and § 12-15-120, neither of which is applicable in the present case.

“Section 12-15-120 applies where the case was initially transferred from the district court to the circuit court. There was no transfer in this case.

“Section 12-12-72(1) is applicable in instances where the case is of such nature as to give the parties the right to a jury trial and neither party wishes to avail himself of that right on appeal to the circuit court. In such instances where an adequate record or stipulation of facts is available, the circuit court may be bypassed by a direct appeal to the appellate courts. However, in the instant case, neither party is entitled to a jury trial. The granting or denial of a rule 60(b) motion is a decision for the trial judge. Rule 60(b), [Ala. R. Civ. P.] Therefore, we find that this case does not fall within the exception provided by § 12-12-72(1).

“The exception found in § 12-12-72(2) has two requirements: (1) the parties must stipulate that only questions of law are involved, and (2) the district court must certify those questions. In the instant case, there is neither a stipulation by the parties nor a certification of questions by the district court. Section 12-12-72(2) is, therefore, inapplicable.”

Terry, 404 So.2d at 346^47.

      . The "Comment to Amendment Effective November 15, 1985” to Rule 28 explains that the purpose of Rule 28 is to reconcile the provisions of Ala.Code 1975, § 12-15-120 (and § 12-11-30(3)) with the provisions of § 12-12-72, the two statutes upon which Presiding Judge Yates bases her special writing concurring in the result.


author: CRAWLEY, Judge.

text:
    DRUMMOND COMPANY, INC. v. William MYERS.
    2020120.
    Court of Civil Appeals of Alabama.
    June 20, 2003.

      Edward R. Jackson and James C. Brakefield of Tweedy, Jackson, Beech & Fikes, Jasper, for appellant.
    Robert T. Wilson, Jr., and Patricia Frederick of Wilson & Wilson, P.C., Jasper, for appellee.
   CRAWLEY, Judge.

The Drummond Company, Inc. (“the company”), appeals from a judgment awarding William Myers (“the worker”) benefits under the Workers’ Compensation Act based on a hearing loss the worker had allegedly sustained during the 22-year period in which he had worked for the company. The company challenges only one aspect of the judgment; it claims that the trial court erred to reversal in treating the worker’s injury as an injury to the body as a whole instead of as an injury to a scheduled member. See § 25-5-57(a)(3)a.l8., Ala.Code 1975; Drummond Co. v. Key, 854 So.2d 1159 (Ala.Civ.App.2002).

The standard of review this court uses when reviewing a trial court’s judgment in a workers’ compensation case is well settled. The Workers’ Compensation Act provides that “[i]n reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.” § 25-5-81(e)(l), Ala.Code 1975. Our supreme court has stated the standard of review to be applied to the trial court’s . findings of fact as follows:

“[Ujnder the applicable standard of review, we will not reverse the trial court’s finding of fact if that finding is supported by substantial evidence — if that finding is supported by ‘evidence 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.’ ”

Ex parte Trinity Indus., Inc., 680 So.2d 262, 268-69 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), and citing § 12-21-12(d), Ala.Code 1975)). See also § 25-5-81(e)(2), Ala.Code 1975. Further', “[t]he [1992 Workers’ Compensation] Act did not'alter the rule that this court does not weigh the evidence before the trial court.” Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995). However, our review of legal issues is without a presumption of correctness. § 25-5-81(e)(l), Ala.Code 1975; see also Ex parte Trinity Indus., 680 So.2d at 268.

The worker had worked for the company approximately 22 years, primarily as an electrician, repairing equipment in a coal mine owned by the company. He testified that he began experiencing problems with his hearing sometime between 1980 and 1985. He said that he consulted Dr. John Simmons about the problem; Dr. Simmons prescribed a hearing aid for him. Dr. Jack Aland testified in a deposition that he had examined the worker and had determined that the worker had moderate hearing loss. The evidence indicated that the company had provided earplugs to protect its workers’ hearing from the noise caused by the mining equipment; however, the worker testified that he had chosen not to use the earplugs because he had wanted to be able to hear the noise of the “top cracking” that preceded the collapse of a mine wall.

On January 21, 1997, the employee stopped working for the company because it closed the mine in which he was employed. On October 9, 1998, the worker sued the company, alleging that he had contracted pneumoconiosis, an occupational lung disease, as a result of his exposure to dust, smoke, and dangerous fumes while performing his coal-mining duties during his employment with the company and that he was permanently disabled as a result of such exposure. On January 5, 1999, the worker amended his complaint to include a claim for permanent hearing loss as a result of being exposed to hazardous noise levels during his employment.

The trial court held a trial on August 15, 2001, at which the worker and his wife presented testimony. The deposition testimony of several pulmonary specialists; Dr. Jack Aland; and a vocational expert, William Crunk, along with the worker’s medical records, were admitted into evidence. Thereafter, the trial court entered a judgment on September 24, 2001, denying the worker’s claim based on pneumoconiosis but finding him 37% permanently partially disabled based on his hearing loss. The trial court’s judgment stated, in pertinent part:

“That on and prior to [the worker’s] last date of employment with [the company] on January 21, 1997, and while working within the line and scope of his employment for [the company], [the worker] suffered an occupational hearing loss, which occupational disease arose out of and in the course of his employment for [the company] and resulted from the nature of [the worker’s] employment in and about the mining of coal due to large noisy machinery, which machinery emits noises with high frequencies and high decibel levels on regular and recurring bases in said work environment, and which adversely affects coal miners’ hearing. In particular, this Court finds that the coal mining industry has attached to it the particular hazard of hearing loss, and such hazard is different from and distinguishable from hazards associated with those ordinarily incident to employment in general. [The worker] was exposed to such hazards from the commencement of his employment by [the company] and continuing until termination of said employment.
“That [the worker’s] injury is continuous and permanent. As a proximate consequence of said injury, [the worker] suffers severe hearing loss. That [the worker’s] injuries are disabling and place limitations on his ability to obtain suitable employment and his ability to earn a livelihood.
“That [the worker] served in the military for two years. That [the worker] worked as an auto mechanic while in the military. That, after discharge from the military, he attended G.I. school and obtained his high school diploma. That following his military service, [the worker] worked as a union carpenter for more than twenty (20) years. Following that employment, [the worker] worked as a coal miner for approximately twenty-two (22) years. That [the worker] has no special training or skills other than mechanic work, carpentry work, and coal mining work. That [the worker] has a severe hearing impairment, which makes it difficult for him to hear and carry on a conversation, especially in a noisy environment.
“The Court specifically finds that [the worker] has sustained a thirty-seven percent (37%) permanent partial disability pursuant to the Workers’ Compensation Act of Alabama, and that [the worker] has lost at least thirty-seven percent (37%) of his access to employment and/or his employability, which is based upon [the worker’s] abilities in his presently disabled condition as a result of his age, education and experience. That the thirty-seven percent (37%) permanent partial disability to [the worker] is a direct result of [the worker] contracting an occupational-related hearing loss, which said condition causes [the worker] to be thirty-seven percent (37%) permanently partially disabled and incapacitated from working and having access to employment in the job market to that extent.”

The company argues that the trial court failed to follow our supreme court’s test, which was recently restated in Ex parte Drummond Co., 837 So.2d 831 (Ala.2002), for determining when an injury to a scheduled member could be compensated outside the schedule and treated as a disability to the entire body. We agree.

The supreme court explained its reason for restating the test as follows:

“[T]he [test set forth in Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968),] permitted an injury to a scheduled member to be compensated outside the schedule if the effect of the injury extends to other parts of the body and produces a greater or more prolonged incapacity than that which naturally results from the injury to the specific member. However, the Court of Civil Appeals has substantially expanded the Bell test to include, as effects that will take the injury outside the schedule: (1) pain, swelling, and discoloration; (2) work restrictions; (3) impairment ratings to the body as a whole; and (4) vocational disabilities. It also appears that the Court of Civil Appeals has considered the worker’s ability to find future employment as a factor in deciding whether an injury to a scheduled member should be compensated outside the schedule.”

Ex parte Drummond, 837 So.2d at 834 (footnotes omitted). The Ex parte Drum-mond Court then restated the proper test to follow when determining whether to compensate an - injury to a scheduled member outside the schedule as follows: “ ‘[I]f the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive.’ ” 837 So.2d at 834, quoting 4 Lex K. Larson, Larson’s Workers’ Compensation Law § 87.02 (2001).

Hearing loss is a scheduled injury. See § 25-5-57(a)(3)a.l8., Ala.Code 1975. Applying the test restated by the supreme court in Ex parte Drummond, the compensation provided by application of the schedule is the worker’s exclusive remedy, unless the worker has demonstrated that his hearing loss has “ ‘extended] to other parts of [his] body and interfere^] with their efficiency.’ ” 837 So.2d at 833.

The evidence does not support such a demonstration. The evidence relating to the worker’s hearing loss is limited to his ability to hear. William Crunk, the worker’s vocational expert, made no reference to the worker’s hearing loss; his testimony and report were based solely on the worker’s pulmonary problems. The worker’s wife testified only about the worker’s lung disease and did not refer to his hearing loss. The worker testified briefly about his hearing loss, but he did not indicate that it affected any other portion of his body. In his deposition, Dr. Jack Aland addressed the severity of the worker’s hearing loss and whether the impairment could be related to exposure to the noise of the mining equipment, but Dr. Aland did not address whether the worker’s hearing loss interfered with the efficiency of any other portion of his body.

Further, the trial court’s judgment does not contain any finding that the worker’s hearing loss adversely affected any other portion of his body. On the contrary, in its judgment the trial court states: “That the thirty-seven percent (37%) permanent partial disability to [the worker] ... causes [the worker] to be thirty-seven percent (37%) permanently partially disabled and incapacitated from working and having access to employment in the job market to that extent.” The trial court expressly stated that the primary factor it relied upon in making its determination that the worker was 37% permanently partially disabled to the body as a whole was the worker’s limited access to future employment.

The express rationale the trial court stated in support of its disability determination indicates that the trial court applied the “substantially expanded” Bell test that was overruled by our supreme court — not the more restrictive, restated test set out in Ex parte Drummond, — in determining when a scheduled injury may be compensated outside the schedule. 837 So.2d at 834. Therefore, the judgment is reversed and the case is remanded for the trial court to enter a judgment awarding benefits to the worker for his hearing loss by application of the scheduled allowance set forth at § 25-5-57(a)(3)a.l8., Ala.Code 1975.

REVERSED AND REMANDED.

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

      . It is not clear from the record what the term "lop” in this phrase refers to, but we presume from the context in which the term is used that the worker is referring to the top of the mine wall.


author: BASCHAB, Judge. COBB, Judge,

text:
    James E. McINVALE v. STATE of Alabama.
    CR-02-1231.
    Court of Criminal Appeals of Alabama.
    June 27, 2003.
    James E. Mclnvale, pro se.
    Andrew W. Redd, gen. counsel, and Beth Slate Poe, asst. atty. gen., Department of Corrections, for appellee.
   BASCHAB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

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

COBB, Judge,

concurring in the result.

In its unpublished memorandum, the majority dismisses James E. Mclnvale’s appeal from the denial of his petition for the writ of habeas corpus. Mclnvale, who is currently incarcerated in Jefferson County, filed in Lee County a petition for a writ of habeas corpus requesting disposition of a detainer against him in Lee County. The majority holds 1) that the petition was actually a “simple motion,” the denial of which was not appealable, and 2) that, even if the filing was a petition for a writ of habeas corpus, it should have been filed in the county where Mclnvale was incarcerated, that is, Jefferson County.

I agree to dismiss the appeal because, apparently, our existing caselaw allowing an action such as this one, see Aaron v. State, 497 So.2d 603 (Ala.Crim.App.1986), has been implicitly overruled by Ex parte Sandlin, 554 So.2d 401 (Ala.1989).

In Aaron v. State, 497 So.2d 603 (Ala.Crim.App.1986), the petitioner, incarcerated in St. Clair County, filed in St. Clair County a petition for a writ of habeas corpus concerning a detainer in Jefferson County. The circuit court dismissed the petition. In reversing the circuit court’s dismissal of the petition, this Court held that Aaron’s petition for a writ habeas corpus, filed in the county of his incarceration rather than in the county holding the detainer, was appropriate in such a case.

However, in Ex parte Sandlin, 554 So.2d 401 (Ala.1989), the petitioner, an inmate in St. Clair County, filed in St. Clair County, a petition for a writ of habeas corpus concerning a detainer in Morgan County. The circuit court dismissed the petition. In affirming the judgment of the circuit court, the Alabama Supreme Court held:

“Because it is apparent from the recr ord before us that [the] petitioner had already filed a motion to dismiss the indictments pending against him in Morgan County [pursuant to Rules 16.2 and 16.3, Ala. R.Crim. P.], and because we find that his petition for writ of habeas corpus does not raise any question concerning an incarceration on the pending charges, we hold that the trial court correctly dismissed his petition.”

554 So.2d at 403. Thus under the same procedural facts as existed in Aaron, the Alabama Supreme Court held that habeas was not appropriate. The Court pointed out the correct procedure for presenting a claim regarding a detainer — filing a motion to dismiss in the county holding the detain-er. Appeal to this Court is necessarily through a petition for a writ of mandamus, as the denial of a motion to dismiss is not a final, appealable order.

In the wake of Sandlin, this Court has been addressing detainer claims presented to it by petitions for a writ of mandamus. This Court has not explained in a published opinion how it is that at one time, petitions for a writ of habeas corpus were the remedy for such claims, but now they are not.

I am not the author of the majority decision in this case; I recognize that my special writing is therefore of no prece-dential value. I write specially to point out both the problem and the need for a solution — a published opinion, with prece-dential value, explaining the procedure by which the Court reviews detainer claims.

Also,.I write specially to.advise the appellant that although the unpublished evolution of this area of law remains unexplained in current caselaw, this Court will hear a complaint regarding a detainer on an appeal if presented in a petition for a writ of mandamus challenging the denial of a motion to dismiss filed in the court holding the detainer against him.


author: McMILLAN, Presiding Judge. COBB, Judge,

text:
    Frank Ray BALL v. STATE.
    CR-01-2550.
    Court of Criminal Appeals of Alabama.
    June 27, 2003.
    Yader A1 Pennington, Mobile, for appellant.
    William H. Pryor, Jr., atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

BASCHAB, SHAW, and WISE, JJ„ concur. COBB, J., dissents, with opinion.

COBB, Judge,

dissenting.

Before entering his guilty plea, Frank Ball reserved the right to appeal the trial court’s order denying his motion-to suppress evidence seized during a search. The majority, in its unpublished memorandum, holds that the search warrant was invalid because the affidavit submitted to the magistrate did not establish probable cause. The majority determined, however, that the good-faith exception to the exclusionary rule, United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), applied and that the evidence was properly admitted. I agree that the warrant was invalid, but I do not agree that the good-faith exception applies. The motion to suppress should have been granted.

In United States v. Leon, the Supreme Court held that evidence obtained pursuant to a facially valid search warrant that is later determined to be invalid is admissible if the officers acted in good faith and in objectively reasonable reliance on the warrant. Id. at 922, 104 S.Ct. 3405. The Court recognized four circumstances in which the good-faith exception was inapplicable: (1) when the magistrate relied on information in an affidavit that the affiant knew was false or would have known was false but for his reckless disregard of the truth; (2) when the magistrate abandoned his judicial role and failed to act in a neutral manner; (3) when the affidavit was so lacking in any indicia of probable cause as to render it unreasonable to believe that probable cause existed; and (4) when the warrant was so facially deficient that the executing officer could not reasonably presume it to be valid. The test for reasonable reliance is whether the affidavit was sufficient to “create disagreement among thoughtful and competent judges as to the existence of probable cause.” Leon, 468 U.S. at 926, 104 S.Ct. 3405.

As the majority recognizes, nothing in the affidavit in this case connects Frank Ball with 3395 Lakewind Drive, the house that was searched. His residence was listed as 2505 Granada Avenue. No illegal activity was alleged to have occurred at the Lakewind Drive location. The only connection the affidavit provided was that the electric utility bill for the Lakewind Drive property was in the name of Nicosia Ball, the person with whom the affidavit alleged that Frank Ball resided at the Granada Avenue address.

The United States Court of Appeals for the Ninth Circuit considered a case presenting virtually identical circumstances to those involved in the case before us. United States v. Hove, 848 F.2d 137 (9th Cir.1988). In Hove, the Court stated:

“We agree with Hove that the affidavit submitted by Sgt. Moya in support of this search warrant was so deficient that any official belief in the existence of probable cause must be considered unreasonable. The test for reasonable re-banee is whether the affidavit was sufficient to ‘create disagreement among thoughtful and competent judges as to the existence of probable cause.’ [United States v.] Leon, 468 U.S. [897] at 926, 104 S.Ct. [3405] at 3422. See also United States v. Tate, 795 F.2d 1487, 1490 (9th Cir.1986). Here, reasonable judges could not disagree over whether probable cause existed to search the DeAnza location because the affidavit offers no hint as to ivhy the police wanted to search this residence. The affidavit does not link this location to the defendant and it does not offer an explanation of why the police believed they may find incriminating evidence there; the affidavit simply lists the DeAnza address as a location to be searched. It is critical to a showing of probable cause that the affidavit state facts sufficient to justify a conclusion that evidence or contraband will probably be found at the premises to be searched. [United States v. Hendricks, 743 F.2d 653, 654 (9th Cir.1984).] No such facts were stated in this affidavit. Thus, any official belief in the existence of probable cause must be considered unreasonable.”

848 F.2d at 139-40 (emphasis added).

As in Hove, the good-faith exception cannot apply in these circumstances. The affidavit on which the warrant was based was so lacking in probable cause as to render reliance on it entirely unreasonable, and the executing officer could not presume it to be valid. Moreover, we find the following quote from the United States Court of Appeals for the Third Circuit applicable:

“And particularly where the affiant is also one of the executing officers, it is somewhat disingenuous, after having gone to the magistrate with the paltry showing seen here, to suggest, as the government suggests, that at bottom it was the magistrate who made the error and the search and seizure are insulated because the officer’s reliance on that error was objectively reasonable.”

United States v. Zimmerman, 277 F.3d 426, 438 (3d Cir.2002).

Officer John Nixon was the affiant in this case, and he was also one of the officers who executed the warrant. As the Third Circuit Court of Appeals noted, the paltry evidence offered in this affidavit did not insulate Officer Nixon and his colleagues from a determination that the search was conducted in violation of the constitution.

The good-faith exception did not apply in this case to save the prosecution from the unconstitutional search of the Lake-wind Drive location. “Good faith is not a magic lamp for police officers to rub whenever they find themselves in trouble.” United States v. Reilly, 76 F.3d 1271, 1280 (2d Cir.1996).

The search was unconstitutional, and the motion to suppress should have been granted in this case. Therefore, I dissent.

      . The majority states that Nicosia is Frank's wife, but the affidavit does not allege this. It merely states that they resided together at the Granada Avenue residence.


author: PER CURIAM.

text:
    Phillip BUMPUS v. STATE of Alabama.
    CR-02-0964.
    Court of Criminal Appeals of Alabama.
    July 18, 2003.
    Phillip Bumpus, pro se.
    William H. Pryor, Jr., atty. gen., and G. Ward Beeson III, asst. atty. gen., for ap-pellee.
   PER CURIAM.

The appellant, Phillip Bumpus, appeals the revocation of his probation. Bumpus was convicted of selling marijuana and was sentenced to 12 years’ imprisonment. His sentence was suspended and Bumpus was ordered to serve 18 months in prison and five years on probation. Bumpus admitted violating the terms of his probation after he had tested positive for marijuana. Bumpus gave oral notice of appeal at his probation-revocation hearing. The State has filed a motion to dismiss this appeal, arguing that the clerk’s record contains no written notice of appeal.

We allowed Bumpus the opportunity to respond to the State’s motion to dismiss this case. Bumpus answered by arguing that his attorney’s performance at his probation-revocation hearing was ineffective because he failed to file a written notice of appeal. He admits that no written notice of appeal was filed in the case but, he argues, we should not penalize him because of his attorney’s ineffectiveness.

The record reflects that Bumpus gave oral notice of appeal at the time his probation was revoked. The record does include a form entitled, “Notice of Appeal to the Alabama Court of Criminal Appeals by the Trial Court Clerk” that was filed in this Court by the circuit clerk within 42 days from the date of the probation-revocation proceeding. This form was signed by the circuit clerk. However, there is no assertion that Bumpus or his attorney completed this form.

In Gray v. State, 808 So.2d 1234 (Ala.Crim.App.2001), this Court held that oral notice of appeal made at the time probation is revoked was not effective. We stated that an oral notice of appeal is effective only if it is made at the time of sentencing and that a probation-revocation proceeding is not the equivalent of a sentencing hearing. This Court overruled Gray in part in its subsequent decision in McLin v. State, 840 So.2d 937 (Ala.Crim. App.2002). The McLin court stated, “[T]o the extent that Gray holds that the form entitled ‘Notice of Appeal to the Alabama Court of Criminal Appeals by the Trial Court Clerk’ can never be sufficient to perfect an appeal, it is hereby overruled.” 840 So.2d at 942.

The situation presented in this case is unlike both McLin and Reeves v. State, [Ms. CR-01-1102, November 22, 2002] — So.2d- (Ala.Crim.App.2002). In both those cases it was clear from the record that the defendants or their attorneys completed the forms entitled “Notice óf Appeal to the Alabama Court of Criminal Appeals by the Trial Court Clerk.” Here, it is uncontested that there was no form filed or completed by Bumpus. Neither does Bumpus assert in his response that he completed the form entitled “Notice of Appeal to the Alabama Court of Criminal Appeals by the Trial Court Clerk.” Indeed, the contrary appears to be true; the form is signed by the circuit clerk, and'this signature matches the other entries on the form.

Because there was no written notice of appeal filed in this case, the State’s motion to dismiss this appeal is due to be, and is hereby, granted.

APPEAL DISMISSED.

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

      . The record reflects that Bumpus is not indigent and that he represents himself in this appeal.


text:
    Arthur BROWN v. STATE of Alabama.
    CR-02-1037.
    Court of Criminal Appeals of Alabama.
    July 18, 2003.
    Blanchard L. McLeod, Jr., Selma, for appellant.
    Submitted on appellant’s brief only.
   PER CURIAM.

The appellant, Arthur Brown, pleaded guilty to four counts of leaving the scene of an accident at which four persons were injured and one count of assault. He was sentenced to 10 years’ imprisonment on each count of leaving the scene of an accident and to 15 years’ imprisonment for the assault conviction, the sentence for assault to run concurrently with those for leaving the scene of an accident. Brown filed written notice of appeal within 42 days of the date he was sentenced.

Brown pleaded guilty on October 21, 2002. Rule 14.4(a)(l)(viii), Ala.R.Crim.P., was amended effective August 1, 2002, to specifically state that a defendant has

“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.”

Rule 26.9(b)(4)(h), Ala.R.Crim.P., was also amended effective August 1, 2002, to provide that a defendant who pleads guilty may appeal, after pleading guilty, if he has filed a motion to withdraw the guilty plea.

Here, because the record before this Court showed that no motion to withdraw the guilty plea was filed in the circuit court, we requested that counsel notify this Court if Brown had reserved any issue to raise on appeal. See Rule 14.4, Ala. R.Crim.P. In response to this Court’s order, Brown’s attorney informed this Court that the trial court had improperly advised Brown that he had the unconditional right to appeal his guilty plea proceedings. Counsel also asserts that we should not apply the recent amendment in Rule 14.4, Ala.R.Crim.P., to Brown because he is unlearned in the law and he was relying on what both the court and his attorney told him. The record supports counsel’s assertion that the trial court incorrectly informed Brown that he had a unconditional right to appeal. Appellate counsel also states that guilty plea counsel failed to inform Brown about the recent amendments to Rule 14.4, Ala.R.Crim.P.

This Court is bound by the Alabama Rules of Criminal Procedure as pronounced by the Alabama Supreme Court in its recent amendment to Rule 14.4, Ala. R.Crim.P. Because Brown failed to invoke the limited right to appeal a guilty plea, we have no authority to consider this appeal. See Williams v. State, 854 So.2d 625 (Ala.Crim.App.2003). Brown’s remedy, if any, is to file a petition for postconviction relief challenging the voluntariness of his guilty plea. Challenges to the voluntariness of a guilty plea may be addressed for the first time in a timely filed postconviction petition. See Cantu v. State, 660 So.2d 1026 (Ala.1995); Ex parte Rivers, 597 So.2d 1308 (Ala.1991); Gordon v. Nagle, 647 So.2d 91 (Ala.1994). We make no comment at this time on the merits of such a petition.

Because Brown failed to invoke the limited right to appeal 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.

      . Our records reflect that guilty plea counsel was allowed to withdraw and a new attorney was appointed to represent Brown on appeal.

      . The Alabama Supreme Court in Ex parte Blackmon, 734 So.2d 995, 997 (Ala.1999), stated that "a misrepresentation by a defendant’s counsel, if material, may render a guilty plea involuntary.” Subsequent to the amendment to Rule 14.4, Alabama has not had the occasion to address whether misinforming a defendant who pleads guilty that he has a right to appeal the guilty plea proceedings will constitute a material misrepresentation that renders a guilty plea involuntary. Before the amendment of Rule 14.4 we had held that the failure to notify a defendant who pleads guilty that he has the right to appeal would not automatically constitute ineffective assistance of counsel. See Langford v. State, 531 So.2d 944 (Ala.Crim.App.1988).