author: PER CURIAM. LYONS, Justice MOORE, Chief Justice

text:
    Timothy Joe SPRINKLE, a minor, by and through his next friend, Emmett PHILYAW v. George Hardy EDWARDS, Jr.
    1010199.
    Supreme Court of Alabama.
    Oct. 4, 2002.
    Bryan G Duhé, Mobile, for appellant.
    James W. Porter II of Porter, Porter & Hassinger, P.C., Birmingham, for appellee.

       Justice Stuart was the circuit judge in Baldwin County to whom this case was assigned during the initial proceedings in this case.

   PER CURIAM.

This case arises out of an automobile accident in which Timothy Joe Sprinkle, a minor, was injured. It is undisputed that the accident was caused by George Hardy Edwards, Jr., a deputy sheriff, who was responding to an emergency dispatch and driving at a high rate of speed. The trial court entered a summary judgment for Edwards. Because we find that Sprinkle’s claim is precluded by the doctrine of res judicata, we affirm the trial court’s judgment.

Factual and Procedural Background

Sprinkle was injured when Deputy Sheriff Edwards, responding to an emergency 911 dispatch call, allegedly drove through a dangerous curve at approximately 90 miles per hour without his emergency flashers or siren on, violating § 32-5A-7(c), AIa.Code 1975. Edwards lost control of his vehicle and collided with another vehicle traveling in the opposite direction that was operated by Peggy Davidson Cooley and in which the plaintiff, Timothy Joe Sprinkle, was a passenger. As a result of the collision, Cooley and her unborn child were killed, and Sprinkle was injured.

Sprinkle sued Edwards and others in the Baldwin Circuit Court, alleging negligence, wantonness, and violations of his civil rights under 28 U.S.C. § 1983. The defendants removed the case to federal court. Once in federal court, the defendants filed a motion to dismiss the complaint for failure to state a claim under Rule 12(b)(6), Fed.R.Civ.P. (hereinafter referred to as “Federal Rule 12(b)(6)”). The federal district court granted that motion, but did not indicate in its order whether the dismissal was with prejudice, and it permitted Sprinkle to restate his § 1988 claims if he could do so in a viable manner. Within 14 days of that dismissal, Sprinkle filed another complaint in the Baldwin Circuit Court realleging his state-law claims of negligence and wantonness against Edwards in his individual capacity; that complaint included no federal claims. Edwards moved to dismiss the state-law claims, arguing that they were barred by the doctrines of res judicata and/or collateral estoppel. The trial court denied Edwards’s motion. Edwards then filed a motion for a summary judgment, arguing that the action was barred by the doctrines of res judicata and/or collateral estoppel, or, in the alternative, that Edwards was immune from liability under the theory of State-agent immunity. The trial court granted that motion and entered a summary judgment for Edwards, but it did not specify on what ground.

Sprinkle appeals from that summary judgment, raising two issues. First, Sprinkle argues that the doctrines of res judicata and/or collateral estoppel do not bar his state action because, he says, the dismissal by the federal district court pertained only to the federal claims raised before that court, not the state-law claims; he argues that a dismissal based on Federal Rule 12(b)(6) is not a ruling on the merits of his state-law claims and therefore cannot bar a subsequent action. Second, Sprinkle argues that Edwards is not immune from suit on the ground of State-agent immunity under Ex parte Cranman, 792 So.2d 392 (Ala.2000), or under § 6-5-338, Ala.Code 1975.

Analysis

Sprinkle first argues that the dismissal of his complaint by the federal district court on the Federal Rule 12(b)(6) ground of failure to state a claim does not meet the elements of res judicata. The elements of res judicata are:

“(1) a prior judgment on the merits; (2) rendered by a court of competent jurisdiction; (3) substantially the same parties involved in the prior case are involved in the current case; and (4) the same cause of action [is] presented in both suits.”

Ex parte Jefferson County, 656 So.2d 382, 384-85 (Ala.1995) (citing Smith v. Scott Paper Co., 620 So.2d 976 (Ala.1993)).

Specifically, Sprinkle argues that the federal district court’s dismissal was not a judgment on the merits as to his state-law claims. He argues that the federal district court’s dismissal did not discuss the state-law claims and that, in any event, a Federal Rule 12(b)(6) dismissal becomes final only if it is converted to a Rule 56, Fed. R.Civ.P., motion for a summary judgment. Federal Rule 12(b) states, in pertinent part:

“If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”

It is undisputed that the defendants’ motion was not treated as a summary-judgment motion but as a motion to dismiss. Sprinkle argues that Federal Rule 12(b)(6) tests only whether the claims have been adequately stated in the complaint; it does not test the merits of those claims. According to Sprinkle, courts reach the merits of the claims only when they reach the summary-judgment stage of the litigation.

Sprinkle further argues that a dismissal can have res judicata effect only if there is a dismissal and if leave to amend the complaint is denied with prejudice. Citing Carter v. Money Tree Co., 532 F.2d 113, 115 (8th Cir.1976). Sprinkle points out that because the federal district court granted him leave to amend his complaint, the denial was without prejudice.

Edwards counters by arguing that the federal district court granted Sprinkle ■leave only to amend as to the federal claims stated in his complaint, not as to the state-law claims. Thus, he argues, the federal district court’s dismissal of the state-law claims was with prejudice. Additionally, Edwards points to Rule 41(b), Fed.R.Civ.P., which states:

“Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication on the merits.”

Failure to state a claim is not one of the exceptions listed in Federal Rule 41(b); thus, Edwards argues, by implication a dismissal for failure to state a claim “operates as an adjudication on the merits.”

Edwards is correct. The United States Supreme Court has stated that “[t]he dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a ‘judgment on the merits’ ” for res judicata purposes. Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981) (citing Angel v. Bullington, 330 U.S. 183, 190, 67 S.Ct. 657, 91 L.Ed. 832 (1947), and Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946)). Thus, a dismissal for failure to state a claim pursuant to Federal Rule 12(b)(6) is generally preclusive.

However, while this rule settles the point that Sprinkle’s § 1983 claims, if not amended, would be precluded by the doctrine of res judicata, it does not answer the question whether the state-law claims were dismissed with prejudice. The federal district court’s order does not discuss Sprinkle’s state-law claims. This Court could answer such a question only by delving into the mind of the federal district court, an exercise this Court lacks the inclination or the ability to perform.

Federal Rule 41 explicitly states that unless the court has specified otherwise, a dismissal is an adjudication on the merits. The federal district court did not specify otherwise in this case, and we will not presume the opposite conclusion — that the dismissal in this case was not an adjudication on the merits — on the basis of its silence. Therefore, because the federal court’s decision was an adjudication on the merits by a court of competent jurisdiction involving the same parties and the same claims, Sprinkle’s action against Edwards is barred by the res judicata effect of the federal district court’s dismissal of all Sprinkle’s claims. However, because the federal district court neglected to mention Sprinkle’s state-law claims in its dismissal, we note that if Sprinkle was to obtain a clarification from the federal district court under Rule 60, Fed.R.Civ.P., that the dismissal of his state-law claims was without prejudice, Sprinkle would be entitled to relief from our determination, according to Rule 60(b), Ala. R. Civ. P. Our conclusion precludes any discussion of Edwards’s State-agent immunity arguments. The trial court’s summary judgment for Edwards is affirmed. We further hold that Edwards’s motion for sanctions against Sprinkle is denied because Sprinkle’s claims were not frivolous.

AFFIRMED; MOTION FOR SANCTIONS DENIED.

HOUSTON, BROWN, and HARWOOD, JJ., concur.

SEE and LYONS, JJ., concur specially.

WOODALL, J., concurs in the result.

MOORE, C.J., and JOHNSTONE, J., concur in part and dissent in part.

STUART, J., recuses herself.

LYONS, Justice

(concurring specially).

I concur in the opinion of the Court. I write specially to address that aspect of the dissenting opinion of Chief Justice Moore dealing with the Court’s affirmance of the trial court’s dismissal of Sprinkle’s claim based upon the doctrine of res judi-cata.

The Chief Justice relies upon the concurring opinion of Judge Lasker in McLearn v. Cowen & Co., 660 F.2d 845, 851 (2d Cir.1981) (“Where the district court, on the pleadings, dismisses a complaint containing both state and federal claims and fails to indicate whether the state claims are being dismissed on the merits, however, the most useful operative rule is to presume that the court declined to exercise its discretionary pendent jurisdiction over the state law claims.” (emphasis added)).

The problem with embracing such a presumption in this case is that it requires Deputy Edwards, the party who obtained the dismissal, to overcome the presumption. How does he do so? Taking testimony from the United States District Court by affidavit or deposition is not a viable alternative. With respect to this presumption, Judge Meskill stated in his dissenting opinion in McLeam: ‘Whether dismissal of a complaint containing both federal and state claims should, as Judge Lasker argues, be presumed to address only the federal claims on the merits, ‘absent clear indications to the contrary,’ must remain an open question until a litigant properly raises it in an appropriate proceeding.” McLearn, 660 F.2d at 853 (emphasis added). As the main opinion notes, a motion by Sprinkle in federal court pursuant to Rule 60, Fed.R.Civ.P., is the appropriate proceeding.

The dissenting opinion would put this Court in the business of second-guessing the effect of a judgment in federal court that on its face, by the plain language of Rule 41, Fed.R.Civ.P., operates as an adjudication of all claims on the merits. In McLeam, the state court had previously, and quite properly, treated the prior federal dismissal as an adjudication on the merits as mandated by the plain language of Rule 41, Fed.R.Civ.P. See McLearn v. Cowen & Co., 48 N.Y.2d 696, 699, 897 N.E.2d 750, 752, 422 N.Y.S.2d 60, 62 (1979). But, in a subsequent memorandum, the state appellate court gave the plaintiff the opportunity to reopen the state court proceedings if it could get the federal court to clarify its order so that it no longer precluded the state-law claims. MeLearn v. Cowen & Co., 52 N.Y.2d 896, 418 N.E.2d 1325, 437 N.Y.S.2d 306 (1981).

The main opinion properly recognizes that the federal court order is an adjudication on the merits and affirms the trial court’s summary judgment, which was entered on the basis that the state-law claims are barred by the doctrine of res judicata. However, this Court also recognized, just as the state appellate court did in McLean, the availability to Sprinkle of postjudgment relief under Rule 60, Ala. R. Civ. P., if he should subsequently obtain relief from the federal court judgment under Rule 60, Fed.R.Civ.P. While this route might appear circuitous, it properly places the burden on Sprinkle, rather than on Edwards, to clarify the federal district court’s judgment, which on its face is an adjudication on the merits against Sprinkle.

SEE, J., concurs.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I concur in the majority’s decision to deny Deputy Edwards’s motion for sanctions. However, I must respectfully dissent from its decision to affirm the trial court’s dismissal of Sprinkle’s claim on res judicata grounds. The majority interprets Rule 41, Fed.R.Civ.P., to necessarily mean that the district court’s ruling in Sprinkle’s federal action operated as an adjudication on the merits of both Sprinkle’s federal claims and his state-law claims. I agree that it operates as an adjudication on the merits as to the federal claims; I do not, however, agree that it operates as an adjudication on the merits as to Sprinkle’s state-law claims.

The Court’s argument is one based on the federal district court’s silence, because the district court, in its order of dismissal, failed to address Sprinkle’s state-law claims at all. Because of that omission, I believe that the question in this case becomes whether the district court exercised its pendant jurisdiction under 28 U.S.C. § 1367 to hear the state-law claims and thus whether its ruling was a ruling on the merits of those claims as well. In McLearn v. Cowen & Co., 660 F.2d 845 (2d Cir.1981), Judge Morris Lasker, in his concurring opinion, commented on the situation we have in this case:

“It is certainly the preferred practice in cases involving pendent state law claims for the district court to state explicitly whether a dismissal of state law claims is on the merits or whether it is declining to exercise its pendent jurisdiction. Where the district court, on the pleadings, dismisses a complaint containing both state and federal claims and fails to indicate whether the state claims are being dismissed on the merits ... the most useful operative rule is to presume that the court declined to exercise its discretionary jurisdiction over the state law claims.”

660 F.2d at 851.

In this case, the federal district court failed even to mention whether it was dismissing Sprinkle’s state-law claims against Edwards in his individual capacity. Accordingly, I am of the opinion that the proper presumption should be that the district court never exercised its discretionary pendent jurisdiction over those claims. This conclusion is supported by the general federal rules surrounding jurisdiction over supplemental state-law claims. “The general rule is that when as here the federal claim drops out before trial ... the federal district court should relinquish jurisdiction over the supplemental claim.” Van Harken v. City of Chicago, 103 F.3d 1346, 1354 (7th Cir.1997).

The federal district court in this case explicitly held that Sprinkle’s complaint that Deputy Edwards violated § 32-5A-7(c), Ala.Code 1975, “cannot be a basis for imposing § 1983 liability,” but the federal district court made no finding as to the viability of Sprinkle’s state-law claims pertaining to the alleged violation of that statute. Consequently, I believe that it is proper to assume that the federal district court never exercised jurisdiction over the state-law claims. Because the district court never exercised jurisdiction over those claims, those claims have not been adjudicated on their merits. Therefore, the doctrine of res judicata cannot apply in this case, and the summary judgment could not have been entered on res judica-ta grounds.

Because I conclude that the doctrine of res judicata does not bar Sprinkle’s claims, the next question is whether some form of immunity prevents Sprinkle from maintaining an action against Deputy Edwards. Three types of immunity could potentially bar an action in this case: (1) absolute immunity, (2) State-agent immunity, and (3) statutory discretionary-function immunity. I conclude that none of these types of immunity protects Deputy Edwards from suit in this case.

Edwards argues that, as a constitutional officer, he possesses absolute immunity under Art. I, § 14, Ala. Const.1901, which provides “[t]hat the State of Alabama shall never be made a defendant in any court of law or equity.” Section 14 has been construed to provide sovereign immunity to all constitutional officers, including deputy sheriffs. See Ex parte Purvis, 689 So.2d 794, 795-96 (Ala.1996). This Court has explicitly held, however, that sheriffs are not immune from liability in actions brought:

“(1) to compel [a sheriff] to perform his duties, (2) to compel him to perform ministerial acts, (3) to enjoin him from enforcing unconstitutional laws, (4) to enjoin him from acting in bad faith, fraudulently, beyond his authority, or under mistaken interpretation of law, or (5) to seek construction of a statute under the Declaratory Judgment Act if he is a necessary party for the construction of the statute.”

Parker v. Amerson, 519 So.2d 442, 443 (Ala.1987).

Sprinkle’s action does not fall under any of the above exceptions, and Sprinkle does not even attempt to argue that it does. It is clear that Deputy Edwards is immune from suit in his official capacity. However, Sprinkle also sued Edwards in his individual capacity. “Sovereign immunity [through Art. I, § 14] does not extend to protect state officials from personal liability for torts committed in their official capacities.” Turner v. Sayers, 575 So.2d 1135, 1138-39 (Ala.Civ.App.1991), citing DeStafney v. University of Alabama, 413 So.2d 391 (Ala.1981). Thus, absolute immunity does not bar Sprinkle’s claims.

Deputy Edwards may, however, be immune from liability based on State-agent immunity or statutory discretionary-function immunity. In Ex parte Cranman, 792 So.2d 392 (Ala.2000), this Court restated the law of State-agent immunity, stating, in part:

“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s ... exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons .... ”

792 So.2d at 405 (second emphasis added). Section 6-5-338(a) is the basis for statutory discretionary-function immunity. It gives a police officer “immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the fine and scope of his or her law enforcement duties.” (Emphasis added.) Thus, whether this incident is analyzed under Cranman or the statutory immunity provided by § 6-5-338(a), the question is whether Deputy Edwards was engaged in a function involving the exercise of his judgment in the performance of his duties.

Sprinkle sued Deputy Edwards, alleging that Deputy Edwards had been negligent when responding to an emergency by driving at an excessive speed and failing to engage his lights and siren, a violation of § 32-5A-7(c). Section 32-5A-7 permits drivers of authorized emergency vehicles to take certain privileges with regard to the rules of the road when answering an emergency call or when pursuing a suspect. Section 32-5A-7(b)(3) specifically allows the driver of such a vehicle to “[exceed the maximum speed limits so long as he does not endanger life or property....” Section 32-5A-7(c), however, restricts that permission by stipulating that “[t]he exemptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of an audible signal meeting the requirements of Section 32-5-13 and visual requirements of any laws of this state requiring visual signals on emergency vehicles.”

Deputy Edwards was answering an emergency 911 “hang-up” call when he exceeded the speed limit and crashed into the vehicle Sprinkle was in. There can be no doubt that Deputy Edwards was engaged in the performance of his law-enforcement duties at the time of the accident. Discretionary acts require “constant decision-making and judgment.” Phillips v. Thomas, 555 So.2d 81, 85 (Ala.1989). Deputy Edwards’s decision to answer the emergency 911 dispatch call as well as his decision to drive at an excessive rate of speed both required him to exercise personal judgment. In White v. Birchfield, 582 So.2d 1085 (Ala.1991), a police officer who answered an emergency 911 distress call was driving at an excessive rate of speed with a suspect in the backseat of the car. The car became airborne as a result of the speed and the suspect’s head was knocked against the roof of the car, injuring the suspect. This Court concluded that the officer was entitled to immunity, reasoning that “[the officer’s] decision to answer the call in a life-threatening situation was within the boundaries of his discretion in performing his duties as a deputy sheriff.” 582 So.2d at 1087.

However, in this case Deputy Edwards also violated an express statute regarding the use of lights and sirens in an emergency situation. The statute does not give Deputy Edwards discretion with respect to using his siren and lights when answering an emergency call at an excessive rate of speed. Section 32-5A-7 permits authorized emergency vehicles to “exercise the privileges set forth in this section, but subject to the conditions herein stated.” One of those conditions is using visual and audible signals, i.e., emergency lights and sirens. The statute says that the exemptions provided in that section “shall apply only” when the emergency vehicle uses emergency lights and sirens. (Emphasis added.) Where a deputy’s discretion to exercise personal judgment has been revoked by statute, he cannot be said to have discretionary immunity for his action.

The case of Williams v. Crook, 741 So.2d 1074 (Ala.1999), is directly on point. In that case, a Bay Minette police officer answered a domestic-disturbance dispatch call and was traveling in excess of the speed limit toward the scene of the disturbance. Along the way, he crashed into another vehicle, injuring the vehicle’s occupants. The officer was not using his emergency lights or sirens; he testified that he feared doing so would alert those at the scene of the domestic disturbance of his arrival and might result in participants’ running away. This Court ruled that the police officer was not entitled to discretionary-function immunity from claims asserted by the victims. The Court stated, in part:

“Thus, under the express provision of the statute, we must conclude that Crook [the police officer] did not have the discretion to exceed the speed limit unless he also complied with the provisions of § 82-5A-7(c), and he admittedly did not do that. Thus, the accident that gave rise to the plaintiffs’ claims is not alleged to have been the result simply of actions as to which Crook was called upon to exercise his personal judgment. Although he did have the discretion to decide whether he would drive in excess of the speed limit, once he made that decision he did not have the discretion to further decide whether he would comply with the audible- and visual-signal requirements of § 32-5A-7(c).”

Williams, 741 So.2d at 1077. While Williams specifically discussed immunity under only § 6-5-338(a), the analysis applies equally to a Cranman analysis on these facts, because that “statute, by its terms, extends state-agent immunity to peace officers performing discretionary functions within the line and scope of their law-enforcement duties.” Moore v. Crocker, [Ms. 1992321, April 12, 2002] — So.2d -, - (Ala.2002).

Therefore, because Sprinkle s action was not barred by the doctrine of res judicata and because Deputy Edwards did not possess absolute, State-agent, or discretionary-function immunity for his actions, he can be sued in his individual capacity for the injuries sustained by Sprinkle. The summary judgment should be reversed. Therefore, I must dissent from the majority opinion insofar as it affirms the summary judgment.

JOHNSTONE, J., concurs.

      . In so holding, we note that we did not consider Sprinkle’s response to Edwards’s motion.


source: Caselaw Access Project

author:
PER CURIAM.
      MOORE, Chief Justice JOHNSTONE, Justice

license: Public Domain

text:
    Anthony Jermaine HALE f/n/a Anthony Jerome Hale v. STATE of Alabama.
    1010196.
    Supreme Court of Alabama.
    Oct. 11, 2002.

      John W. Beck, Fairhope, for appellant.
    William H. Pryor, Jr., atty. gen., and E. Vincent Carroll, deputy atty. gen., for ap-pellee.
   PER CURIAM.

The defendant Anthony Jermaine Hale was indicted for, tried for, and convicted of unlawful distribution of marijuana (§ 13A-12-211, Ala.Code 1975). After a sentencing hearing, the trial court sentenced Hale, as an habitual felony offender with one prior felony conviction, to the maximum of life imprisonment (§ 13A-5-9(a)(2), Ala. Code 1975), plus an additional ten years’ imprisonment pursuant to the schoolyard and public housing project enhancement statutes (§§ 13A-12-250 and 13A-12-270, Ala.Code 1975, respectively). Hale filed a postjudgment motion for a reduction of his sentence on the sole ground that it was excessive, cruel, and unusual in violation of his federal and state constitutional rights. The trial court denied the motion. Upon Hale’s appeal, the Court of Criminal Appeals recused, and the appeal was transferred to this Court pursuant to § 12-3-14, Ala. Code 1975.

The defendant Hale argues three issues, which we will explain, analyze, and decide. The conviction and sentence will be affirmed.

I. Chain of Custody

Procedural Facts

At trial, Hale objected to the offer of marijuana and a certificate of analysis, offered by the State pursuant to § 12-21-300 et seq., Ala.Code 1975, on the sole ground that the State had failed to prove the requisite chain of custody and thus had failed to establish a proper predicate for the admission of this evidence. Hale did not challenge this evidence on the ground that § 12-21-300 et seq. was unconstitutional either because it shifted the burden of proof to him, Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), or because it violated his right to confront witnesses against him, California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), or because it violated any other constitutional guarantee. Nor did Hale challenge the form or content of the certificate of analysis itself for noncompliance with § 12-21-300.

Issue

Hale argues that, because the two Department of Forensic Sciences (“DFS”) employees who exercised custody over the evidence bag containing a plastic bag of plant material did not testify to the safeguarding and handling of the evidence bag and its contents at DFS and because the certificate of analysis itself does not prove the safeguarding and handling of this evidence at DFS, a link is missing from the chain of custody of this evidence, and the predicate for the admission of this evidence is insufficient.

Substantive Facts

Deputy Darryl Holsenback testified that he purchased a “plastic sandwich bag that contain[ed] what look[ed] like marijuana” from Hale for twenty dollars on June 4, 1998. Thereafter, Deputy Holsenback met Deputy Donnie Payne, who had monitored the sale through audio equipment, at a predetermined location, and they placed the plastic sandwich bag in an “evidence bag,” sealed the evidence bag, and initialed it. Deputy Payne testified that he then gave the sealed evidence bag to Lieutenant Charlie Jones. Lieutenant Jones testified that, upon his receipt of the sealed evidence bag, he placed it in an evidence locker until he removed the bag to transport it to DFS in Mobile, Alabama. Once Jones arrived at DFS on June 11, 1998, he gave the sealed evidence bag to Gary Wallace, an employee at DFS. Jones stated that he retrieved the evidence bag from DFS on September 16, 1998. He said that the bag was “in the same or substantially the same condition as it was in when [he] first dropped it off.” He stated that the bag, with a certificate of analysis attached to it, “had been opened across the bottom and then heat-sealed when the analysis was complete, [and] forensic analysts [had] placed initials across the seal where they had opened it.”

The certificate of analysis admitted at trial reads:

“ALABAMA DEPARTMENT OF FORENSIC SCIENCES
“P.O. Box 7925 2451 Fillingim St.
“Mobile, Alabama 36670 Mobile, Alabama 36617
“(334) 471-7026 Facsimile (334) 470-5816
“CERTIFICATE OF ANALYSIS
“BCSO C. Jones
“P.O. Box 2199
“Robertsdale, Al 36567
“CASE NUMBER: 98MB04931 SUBMITTING CASE NUMBER: 9802000175
“SUSPECT® RACE SEX BIRTH DATE STATUS
“Unknown B M [none given] Unk
“SERVICE REQUESTED: Identify
“CHAIN OF CUSTODY:
“RELINQUISHED BY: RECEIVED BY: DATE TIME
“C. Jones J.G. Wallace 06/11/1998 11:34
“J.G. Wallace Dameon C. Hutto 06/11/1998 11:34
“DESCRIPTION OF EVIDENCE:
“One sealed plastic pouch containing one plastic bag containing plant material.
■ “DATES OF ANALYSES: 06/24/1998-06/24/1998
“RESULTS OF ANALYSES:
“Laboratory analyses revealed the plant material to be Marihuana [sic]. Weight is 2.15 grams or 0.07 ounces.
“Sworn to and subscribed before me this the 29th Day of June 1998 as a trae and correct copy.
“/s/Dameon C. Hutto /s/Sharon D. Campbell
“Dameon C. Hutto Sharon D. Campbell
“FORENSIC SCIENTIST Notary Public
“Analyst My Commission expires 7/28/2001”

Neither Dameon Hutto nor Wallace testified at trial. No testimony or other evidence tended to prove that Hutto safeguarded the content of the inner bag against its being exchanged for other evidence, mixed with other evidence, or changed in condition.

Law

Section 12-21-13, Ala. Code 1975, provides:

“Physical evidence connected with or collected in the investigation of a crime shall not be excluded from consideration by a jury or court due to a failure to prove the chain of custody of the evidence. Whenever a witness in a criminal trial identifies a physical piece of evidence connected with or collected in the investigation of a crime, the evidence shall be submitted to the jury or court for whatever weight the jury or court may deem proper. The trial court in its charge to the jury shall explain any break in the chain of custody concerning the physical evidence.”

(Emphasis added.) This statute, by its terms, applies only to “[p]hysical evidence connected with or collected in the investigation of’ the charged crime. To invoke the statute the proponent of the evidence must first establish that the proffered physical evidence is in fact the very evidence “connected with or collected in the investigation.” Moreover,

“[i]n Land v. State, 678 So.2d 201 (Ala.Cr.App.1995), aff'd, 678 So.2d 224 (Ala.1996), a case which appears to rely on § 12-21-13, this court ruled that where a witness can specifically identify the evidence, and its condition is not an issue in the case, then the State is not required to establish a complete chain of custody in order for the evidence to be admitted into evidence. We stated: ‘The eyeglasses were admissible without establishing a chain of custody because [the testifying officer] was able to specifically identify them, and their condition was not an issue in the case.’ Land, 678 So.2d at 210. ...
“The evidence in Lee’s case cannot be admissible under § 12-21-13, Ala.Code 1975, because no witness directly testified at trial that the substance tested by [DFS] was the same substance Lee had sold to Larimer. Moreover, the condition of the substance, i.e., whether it was a cocaine, was the crux of the case. Therefore, because there were missing links in the chain of custody, the trial court erred in admitting the substance into evidence over Lee’s chain-of-custody objection.”

Lee v. State, 748 So.2d 904, 912-13 (Ala.Crim.App.1999) (emphasis added). Because no witness in the case before us could otherwise identify the content of the inner bag in the evidence bag as marijuana, forensic testing was necessary. Therefore, § 12-21-13 does not apply to eliminate the need of the State to prove an unbroken chain of custody of the evidence bag and its contents.

“ ‘Proof of [an] unbroken chain of custody is required in order to establish sufficient identification of the item and continuity of possession, so as to assure the authenticity of the item. In order to establish a proper chain, the State must show to a ‘reasonable probability that the object is in the same condition as, and not substantially different from, its condition at the commencement of the chain.’ ”

Ex parte Holton, 590 So.2d 918, 919-20 (Ala.1991) (citations omitted).

“‘[Wjhen dealing with a controlled substance, “the law is concerned with tracing the integrity of the substance only up through the completion of the analysis.” Congo v. State, 409 So.2d 475, 479 (Ala.Crim.App.1981), cert. denied, 412 So.2d 276 (Ala.1982). “An alteration or substitution of the items after [the expert] finished [his] analysis and comparison would, therefore, have been immaterial.” Blanco v. State, 485 So.2d 1217, 1219 (Ala.Crim.App.1986).’ ”

Land v. State, 678 So.2d 201, 212 (Ala.Crim.App.1995), aff'd, 678 So.2d 224 (Ala.1996) (quoting Parker v. State, 587 So.2d 1072, 1089 (Ala.Crim.App.1991) (emphasis added)).

This Court has explained the links and elements of a valid chain of custody of evidence:

“The chain of custody is composed of ‘links.’ A ‘link’ is anyone who handled the item. The State must identify each link from the time the item was seized. In order to show a proper chain of custody, the record must show each link and also the following with regard to each link’s possession of the item: ‘(1) [the] receipt of the item; (2) [the] ultimate disposition of the item, i.e., transfer, destruction, or retention; and (3) [the] safeguarding and handling of the item between receipt and disposition.’ Imwinklereid, The Identification of Original, Real Evidence, 61 Mil. L.Rev. 145,159 (1973).
“If the State, or any other proponent of demonstrative evidence, fails to identify a link or fails to show for the record any one of the three criteria as to each link, the result is a ‘missing’ link, and the item is inadmissible. If, however, the State has shown each link and has shown all three criteria as to each link, but has done so with circumstantial evidence, as opposed to the direct testimony of the ‘link,’ as to one or more criteria or as to one or more links, the result is a ‘weak’ link. When the link is ‘weak,’ a question of credibility and weight is presented, not one of admissibility.”

Ex parte Holton, 590 So.2d at 920 (emphasis added); see also Ex parte Cook, 624 So.2d 511, 513 (Ala.1993). The sealed condition of a bag containing an item or substance is circumstantial evidence of the safeguarding and handling of that item or substance by a particular link who receives the sealed bag, does not open it, and relinquishes it, still sealed, to the next link. Ex parte Holton, 590 So.2d at 920.

Section 12-21-300, Ala.Code 1975, provides:

“(a) In any criminal case, or juvenile or family court case which is of a criminal nature, the prosecuting authority may offer a certificate of analysis as described below, in lieu of direct testimony. The court shall receive as evidence the certificate of analysis from any of the following:
“(1) A person performing an analysis or examination in any laboratory operated by the Alabama Department of Forensic Sciences or authorized by the department to conduct an analysis or examination of the type performed.
“(2) A person performing an analysis or examination in any criminalis-tics laboratory established pursuant to federal law.
“(b) To be admissible pursuant to this section, a certificate of analysis shall contain all of the following:
“(1) The date and time the evidence was delivered to the facility.
“(2) The name of the person making the delivery, and the name of the person receiving the delivery.
“(3) A brief description of the evidence.
“(4) The type of examination or analysis requested.
“(5) The name of the person making the examination or analysis.
“(6) The date or dates of the examination or analysis.
“(7) The results of the examination or analysis.
“The certificate of analysis shall give the name and address of the facility in which the examination or analysis was made, and it shall be signed by and sworn to as true and correct, under penalty of law, by the person making the examination or analysis.”

Section 12-21-301 provides:

“The party seeking to introduce a certificate of analysis shall not less than 40 days prior to the commencement of the hearing or trial, give written notice to all parties of intent to offer proof by a certificate of analysis. The notice shall include a copy of the certificate of analysis.”

Section 12-21-302 provides:

“(a) The party against whom the certificate is offered may request, not later than 30 days prior to the commencement of the hearing or trial, a hearing to show cause why a subpoena should be issued for cross-examination of the person who performed the examination or analysis.
“(b) The request shall be in writing and shall contain a certification that the requesting party intends in good faith to conduct the cross-examination. The request shall also include a statement of the basis upon which the requesting party intends to challenge the findings contained in the certificate of analysis. The court shall grant the request for subpoena only for good cause shown. Good cause shall not include a challenge to the findings contained in the certificate of analysis, unless the requesting party first establishes a legitimate basis for the challenge. If the request for subpoena is granted, and the requesting party subsequently fails to conduct the cross-examination previously certified to, the court shall assess against the requesting party, all necessary and reasonable expenses incurred for the attendance in court of the certifying witness.”

Analysis

The testimony of Deputy Holsen-back, Deputy Payne, and Lieutenant Jones, including their testimony to the sealing and the sealed condition of the evidence bag, identify all links in the chain of custody and prove the safeguarding and handling of the evidence by each link in the chain until the evidence bag was relinquished to Wallace at DFS, where Hutto analyzed the plant material and determined it to be marijuana. Section 12-21-300 preempts the traditional chain of custody predicate law for this evidence once it was received by DFS in this case.

On the one hand the certifícate of analysis does not conform to the § 12—21— 300 requirement that “it shall be signed and sworn to as true and correct.” Hutto swore only that the certificate was “a true and correct copy.” Of what he does not say. On the other hand, Hale did not challenge this defect or any other in the form or content of the certificate and did not challenge the § 12-21-300 et seq. statute itself. Therefore, Hale has effectively conceded the validity of the statute itself and the sufficiency of the certifícate as compliance with § 12-21-300.

This Code section expressly declares that a compliant certificate of analysis will “be admissible.” Thus, if DFS fulfills the requirements of § 12-21-300 and the State properly invokes the statute, it preempts or supplants the traditional requirements of the law for a predicate to admissibility consisting of proof of safeguarding and handling by the personnel at DFS. Therefore, the trial court did not err in admitting the certificate and the plant material with it.

II. Application of the Habitual Felony Offender Act

Facts

Before the sentencing hearing, the State gave Hale notice of intention to seek enhancement of Hale’s sentence pursuant to the Habitual Felony Offender Act (§ 13A-5-9(a)(2), Ala.Code 1975) for a prior conviction of a felony committed by Hale. At the sentencing hearing, the State offered a case action summary of a 1996 conviction of Hale for unlawful distribution of a controlled substance as proof of the prior felony conviction. The case action summary did not show that Hale was treated as a youthful offender when he received the prior conviction. Hale did not object to the offer of the case action summary on any ground.

Issue

Hale argues that, because the case action summary of the prior conviction was not certified and did not indicate whether he was a youthful offender at the time of the conviction, the trial court erred in admitting the case action summary as proof of a prior felony conviction.

Law and Analysis

“The failure to object in the trial court to the State’s method of proving or failure to prove prior convictions precludes consideration of that issue on appeal.” Nichols v. State, 629 So.2d 51, 57-58 (Ala.Crim.App.1993) (citing Harrell v. State, 555 So.2d 257 (Ala.Crim.App.), aff'd, 555 So.2d 263 (Ala.1989); and Faircloth v. State, 471 So.2d 485 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985)). Further, “[w]hile a prior adjudication as a youthful offender cannot be used to enhance punishment under Alabama’s Habitual Felony Offender Act, Ex parte Thomas, 435 So.2d 1324, 1326 (Ala.1982), the properly authenticated evidence of a prior felony conviction need not indicate that the accused waived youthful offender treatment or was denied treatment as a youthful offender.” Goodwin v. State, 516 So.2d 818, 821 (Ala.Crim.App.1986), writ quashed, 516 So.2d 821 (Ala.1987).

Because" Hale did not object to the case action summary on any ground before the trial court, he has not preserved his arguments for appellate review. Nichols, supra; Harrell, swpra; and Faircloth, supra. Furthermore, Hale’s contention that the case action summary of his prior conviction was inadmissible on the ground that it did not indicate whether he was treated as a youthful offender is without merit.

III. Application of Sentencing Enhancements Pursuant to §§ 13A-12-250 and 13-12-270, Ala.Code 1975

Facts

Hale was tried and convicted in September 2000, and was sentenced in October 2000. At a sentencing hearing, the trial court heard the proof that the sale by Hale occurred within three miles of a school and within three miles of a public housing project. Hale did not object to this proof on any ground at the sentencing hearing. The trial court sentenced Hale to an additional ten years in prison pursuant to the schoolyard and public housing project sentence enhancement statutes (§§ 13A-12-250 and 13A-12-270, Ala.Code 1975, respectively). Although Hale filed a motion to reduce his total sentence of life plus ten years in prison on the ground that it was excessive, cruel, and unusual, he did not assert any other ground in his motion.

Issue

Hale argues that the trial court erred in enhancing his sentence pursuant to the schoolyard and public housing project sentence enhancement statutes because the facts necessary to support these sentence enhancements were not charged in the indictment and proven beyond a reasonable doubt to the jury, as, Hale argues, the recent rule of law in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), decided on June 26, 2000, requires. Specifically, he argues that the absence of allegations of the facts to support the sentence enhancements in the indictment deprived the trial court of jurisdiction to sentence him to the additional ten years pursuant to the sentence enhancement statutes.

Law and Analysis

In Poole v. State, 846 So.2d 370, 373 (Ala.Crim.App.2001), the Court of Criminal Appeals discussed and analyzed Apprendi as follows:

“... Apprendi pleaded guilty to two counts of second-degree possession of a firearm for an unlawful purpose and to one count of unlawfully possessing an ‘antipersonnel bomb.’ A New Jersey statute provided that a sentence could be enhanced if the crime was motivated by ‘bias.’ New Jersey sought to invoke this statute. After a hearing, the trial court, based on the testimony from the witness stand, found by a preponderance of the evidence that the crime was motivated by racial bias. The trial court then enhanced Apprendi’s sentence. Apprendi specifically reserved the right to challenge this enhancement on appeal. Apprendi argued that due process required that the question whether the crime was motivated by bias be presented to a jury and proven beyond a reasonable doubt. The New Jersey Supreme Court upheld the enhanced sentence. The United States Supreme Court reversed. Citing earlier decisions, the United States Supreme Court stated:
“ ‘... Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: “[I]t. is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.” [Jones v. United States,] 526 U.S. [227], at 252-25B, 119 S.Ct. 1215 [ (1999) ] (opinion of Stevens, J.); see also id., at 253,119 S.Ct. 1215 (opinion of Scalia, J.).’
530 U.S. at 485-90, 120 S.Ct. 2348 (emphasis added; footnotes omitted). ...
“.... [Constitutional defects must be objected to in the trial court before we may review them on appeal. See Barrett v. State, 705 So.2d 529 (Ala.Crim.App.1996); Puckett v. State, 680 So.2d 980 (Ala.Crim.App.1996); Andersen v. State, 418 So.2d 967 (Ala.Crim.App.1982); Hansen v. State, 598 So.2d 1 (Ala.Crim.App.1991); Cagle v. State, 504 So.2d 1225 (Ala.Crim.App.1987); Crosslin v. State, 540 So.2d 98 (Ala.Crim.App.1988). Therefore, before this Court will review an alleged Apprendi violation, the defendant must object in the trial court. ...
“... [T]he Apprendi holding implies that the failure to allege in the indictment the location of the crime does not affect the validity of the indictment, i.e., does not rise to the level of a jurisdictional defect. Had the defect in Apprendi amounted to a jurisdictional defect that would invalidate the indictment, a reviewing court would, ex mero motu, be charged with noticing the defect. See Ex parte Hargett, 772 So.2d 481 (Ala.Crim.App.1999). The Supreme Court did not hold in Apprendi that the underlying conviction was due to be vacated.”

Poole, 846 So.2d at 373-87 (emphasis added). Thus, Poole holds that the absence of sentence enhancement allegations from the indictment does not deprive the trial court of jurisdiction to impose the enhancements. We approve and adopt this holding and the rationale of the Poole court for this holding.

Therefore, Hale cannot prevail on his argument that the failure of the State to charge the sentence enhancement factors in his indictment deprived the trial court of jurisdiction to enhance his sentence. Furthermore, because Hale does not argue that Apprendi created a new rule of criminal procedure to apply retroactively, see Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), and Ex parte Beavers, 598 So.2d 1320 (Ala.1992), and because he did not argue before the trial court at any time that the application of the sentence enhancements violated his rights to due process and to a trial by jury, he has waived appellate review of these arguments. Poole, supra, and the cases cited therein.

IV. Conclusion

None of the defendant Hale’s arguments warrants a reversal of the conviction and sentence. Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

HOUSTON, SEE, LYONS, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., and JOHNSTONE, J., concur in part and dissent in part.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I join in Justice Johnstone’s special writing only as to his argument that the sentence enhancements in this case, or in any óther Case, should be alleged in the indictment because the facts necessary to trigger the enhancements are, in effect, elements of the crime. In all other respects, I concur with the main opinion.

JOHNSTONE, Justice

(concurring in part and dissenting in part).

But for two exceptions, I concur in the main opinion. Specifically, I concur in the introduction and in Part I, “Chain of Custody,” and Part II, “Application of the Habitual Felony Offender Act.” Consequently, I concur in affirming the conviction although not the sentence. While I further agree- that, under the procedural and legal posture of this case, life in prison was within the legal range of penalties, I will offer some observations about this sentence at the very end of this special writing.

My -first exception is that I respectfully dissent from the rationale and holdings of Part III, “Application of Sentencing Enhancements Pursuant to §§ 13A-12-250 and 13A-12-270, Ala.Code 1975.” My second exception is a consequence of the first: I respectfully dissent from affirming the sentence. I would reverse and remand for resentencing without application of §§ 13A-12-250 and 13A-12-270 and without the two consecutive five-year enhancements pursuant to those two Code sections.

In the case before us, Hale tacitly waived all nonjurisdictional objections to the-imposition of the five-year schoolyard enhancement pursuant to § 13A-12-250 and the five-year public housing project enhancement pursuant to § 13A-12-270. However, Hale argues that the absence from the indictment of allegations of facts to support the schoolyard and public housing project enhancements deprived the trial court of jurisdiction to add those enhancements to his sentence. I respectfully submit that he is right.

The analysis is simple. It consists of three cardinal propositions.

First, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), hold that sentence enhancement factors applied to increase a defendant’s penalty above the maximum prescribed by the statute defining the offense charged against the defendant are essential elements of a greater offense. Second, Alabama state law requires that all essential elements be pleaded in the indictment. Third, by Alabama state law, the absence of any allegation of or reference to the schoolyard and public housing project sentence’ enhancement statutes or factors in the marijuana distribution indictment in this case deprived the trial court of jurisdiction to impose any enhancement on the bases of those enhancement statutes and factors. This special writing will demonstrate each of these three cardinal propositions in sequence.

Apprendi initially explains some legal history:

“[Fjacts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition ‘elements ’ of a separate legal offense.”

Apprendi, 530 U.S. at 483 n. 10, 120 S.Ct. 2348 (emphasis added).

“The State had posited in Mullaney [v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975),] that requiring a defendant to prove heat-of-passion intent to overcome a presumption of murderous intent did not implicate [In re] Winship, [397 U.S. 358, 90 S.Ct. 1068 (1970),] protections because, upon conviction of either offense, the defendant would lose his liberty and face societal stigma just the same. Rejecting this argument, we acknowledged that criminal law ‘is concerned not only with guilt or innocence in the abstract, but also with the degree of criminal culpability’ assessed. 421 U.S., at 697-98, 95 S.Ct. 1881. Because the ‘consequences’ of a guilty verdict for murder and for manslaughter differed substantially, we dismissed the possibility that a State could circumvent the protections of Winship merely by ‘redefining] the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment.’ 421 U.S., at 698.”

Apprendi, 530 U.S. at 484-85, 120 S.Ct. 2348 (footnote omitted) (emphasis added to “the elements”). The Apprendi Court then holds:

“[W]hen the term ‘sentence enhancement’ is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict. Indeed, it fits squarely within the usual definition of an ‘element’ of the offense.”

Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348 (emphasis added). Ring, supra, explains:

“We held that Apprendi’s sentence violated his right to ‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’ Id., at 477, 120 S.Ct. 2348 (quoting United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)). That right attached not only to Apprendi’s weapons offense but also to the ‘hate crime’ aggravating circumstance.”

536 U.S. at 602, 122 S.Ct. at 2439 (emphasis added). Ring then adopts the Appren-di holding as well as Justice Thomas’s concurrence to like effect:

‘“[W]hen the term “sentence enhancement” is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.’-, [530 U.S.], at 495, 120 S.Ct. 2348. ‘[M]erely because the state legislature placed its hate crime sentence enhancer within the sentencing provisions of the criminal code does not mean that the finding of a biased purpose to intimidate is not an essential element of the offense.’ (internal quotation marks omitted); see also id., at 501, 120 S.Ct. 2348, (THOMAS, J., concurring) (‘[I]f the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact[,] ... the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime.’).”

536 U.S. at 605, 122 S.Ct. at 2441 (emphasis added). The Ring Court then holds: “Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ Apprendi, 530 U.S., at 494, n. 19.” 536 U.S. at 609, 122 S.Ct. at 2443.

Second, Alabama state law requires that “[a]n indictment must include all of the essential elements that constitute the offense, and it must not leave any element open to inference.” Lanier v. State, 733 So.2d 931, 936 (Ala.Crim.App.1998) (citing Heidelberg v. State, 575 So.2d 621 (Ala. Crim.App.1991)). “Failure to charge an offense is the kind of defect involved in due process of law and it cannot be waived. Although the law does not compel a ‘ritual of words’ in an indictment, ‘[t]he omission of an element of the crime, however, is not a mere formality that may be waived.’ ‘An indictment that fails to allege each material element of an offense fails to charge that offense.’ ” Barbee v. State, 417 So.2d 611, 613 (Ala.Crim.App.1982) (citations omitted).

Third, by Alabama state law, “[fjailure to allege an essential element of the charged offense is a jurisdictional defect, and the failure to raise the defect at trial or on direct appeal does not constitute a waiver.” Ex parte Lewis, 811 So.2d 485, 487 (Ala.2001) (citing Byrd v. State, 763 So.2d 987 (Ala.Crim.App.2000), and Heidelberg, supra). “A valid indictment is the source of the subject matter jurisdiction to try a contested criminal case. Absent a valid indictment, a trial court would lack subject matter jurisdiction to try, to convict, or to sentence a defendant in a contested criminal case.” Ash v. State, 843 So.2d 213, 216 (Ala.2002) (citations omitted).

In the case before us, the particular indictment at issue vested the trial court with jurisdiction to try, to convict, and to sentence Hale for unlawful distribution of marijuana as, and only as, defined and punished by § 13A-12-211 and § 13A-5-6(a)(2). At sentencing, the State invoked the Habitual Felony Offender Act, § 13A-5 — 9(a)(2), Ala.Code 1975, and proved one prior felony conviction; Hale did not preserve any valid objection. Thus, the trial court had jurisdiction to sentence Hale within the range of ten years to life in prison. See § 13A-12-211(b), § 13A-5-9(a)(2), and § 13A-5-6(a)(l).

“The sentence imposed following conviction of a crime must conform to the statute and cannot exceed the term prescribed by law. ... When the court imposes sentence in excess of that authorized by statute, it exceeds its jurisdiction, and the sentence is consequently void.” Ferguson v. State, 565 So.2d 1172, 1173 (Ala.Crim.App.1990) (citing Ex parte McKivett, 55 Ala. 236 (1876); City of Birmingham v. Perry, 41 Ala.App. 173, 125 So.2d 279 (1960); 21 Am. Jr.2d Criminal Law § 237 (1981); and Ex parte Brannon, 547 So.2d 68 (Ala.1989)). Because Hale’s indictment neither alleged the schoolyard and public housing project sentence enhancement factors nor even cited the enhancement statutes, § 13A-12-250 and § 13A-12-270, the trial court lacked jurisdiction to apply those statutes to enhance Hale’s sentence above the life-in-prison maximum for the commission of the Class B felony of distribution of marijuana after conviction of a single prior felony within the ambit of the Habitual Felony Offender Act. § 13A-12-211(b), § 13A-5-9(a)(2), and § 13A-5-6(a)(1).

Thus, the schoolyard and public housing project enhancements of Hale’s sentence are void. Therefore, I respectfully submit that we should reverse Hale’s sentence and should remand this cause for resen-tencing.

Hale did not argue to us that his sentence of life in prison plus ten years violated his Eighth Amendment, United States Constitution, guarantee' against cruel and unusual punishment. See Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), and Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). Nonetheless, wise public officials may benefit the public by pondering the ramifications of this sentence and like sentences, if not for moral reasons, at least for practical reasons.

Hale has received his sentence for selling 2.15 grams, or .07 ounces, of marijuana after having already been convicted of distributing some controlled substance. The record does not reveal the quantity or identity of the controlled substance Hale distributed the first time. The amount of marijuana Hale sold to receive the sentence now before us is enough to make four or five average-sized marijuana cigarettes. State v. Laurino, 108 Ariz. 82, 83, 492 P.2d 1189, 1190 (1972) (the average weight of a marijuana cigarette is “a half a gram”).

The August 10-16, 2002, issue of The Economist magazine presents and analyzes some statistics on the criminal justice system in the United States. About 2,000,000 Americans are in state and federal prisons. “A Stigma That Never Fades,” The Economist, August 10-16, 2002, at 25. About 4,500,000 more are on parole or probation. Id. Another 3,000,000 Americans are ex-convicts who have completed their sentences and any periods of probation. Id.

The total population of the United States on September 18, 2002, at 7:58:20 p.m., EDT, was 288,076,459. “U.S. POP-Clock Projection” by the U.S. Census Bureau, Population Division. It was increasing by a net of one person every ten seconds. Id. Even so, the total of inmates, probationers, and ex-convicts, as counted by the slightly less current statistics in The Economist, at 25, aggregated about 3.3% of the entire population, including babies and children too young to be in the criminal justice system.

Nearly one in eight American men of all races, and one in three American black men, has been convicted of a felony. “Too Many Convicts,” The Economist, August 10-16, 2002, at 9. One in 20 American men of all races, and one in five American black men, has been incarcerated. Id.

The United States — counting the federal and state prison systems — incarcerates a higher percentage of the national population than any other nation in the world. The Economist, at 25. Russia’s incarceration ratio is second to that of the United States. Id. The incarceration ratio in England, the highest in Europe, is only one-fifth of the ratio in the United States. Id.

Approximately 51% of all current inmates of state prisons and local jails are incarcerated for nonviolent offenses. Paige M. Harrison and Allen J. Beck, Ph. D., “Prisoners in 2001,” Bureau of Justice Statistics Bulletin, NJC 1951989, July 2002, at 12. Approximately 80% of all current federal inmates are incarcerated for nonviolent offenses. Id. at p. 14.

An ubiquitous fad these days is baggy, oversized trousers, falling off the hips. The origin of this fad is the prison system, where prisoners are issued too-big trousers when trousers that fit are unavailable. A variation of this fad — baggy, long trunks — has spread to boxers and basketball players, local and national.

The originators of the fad were emulating their friends or role models who were prison inmates. To some extent, the young men who adopt or copy the fad are expressing the same admiration or alliance.

Will the prison population and its admirers and allies reach a critical mass? If so, what will happen?

Exaggerating the dangers of some crimes can be a bonanza for politicians, bureaucrats, and law enforcement officials. The exaggeration prompts legislators at all levels of government to allocate more and more money to the bureaucracies and agencies. The exaggeration likewise prompts legislators, judges, and law enforcement officials to invade and progressively to eliminate the privacy, immunities, and liberties of individual citizens. For instance, hardly more than a vestige remains of the Fourth Amendment, United States Constitution, guarantee against unreasonable searches and seizures. Finally, politicians win votes by creating a menace or a worse menace in the minds of the voters and then “fighting” that menace by legislating or imposing draconian sentences. But what about the costs?

Hale is a drug offender. As of August 2002, 2,849 inmates were serving drug offense sentences exceeding ten years each in the Alabama penitentiary system. Alabama Department of Corrections, Monthly Statistical Report, Demographics and Sentencing (Research, Monitoring & Evaluation, August 2002), p. 7. As of September 30, 2001, the annual cost of incarcerating each inmate in the Alabama penitentiary system was $9,581, the lowest annual cost per inmate in this nation. “Comparison of Alabama Prison System to Other States,” American Correctional Association Directory (2002). Even so, and even without any recognition of any increase in the annual cost since September 30, 2001, the annual cost of incarcerating the 2,349 inmates serving drug offense sentences of ten years or longer each in the Alabama penitentiary system is $22,505,769.

Every year this state encounters a budget crisis. The Judicial Branch of government and a number of agencies in the Executive Branch of government are suffering funding shortages, some critical, right now, and will be suffering worse shortages in the near future in the absence of some relief.

I doubt that any politician would be unable to rationalize the life-plus-ten-year sentence in Hale’s case and to get some votes in the process. But are the taxpayers really getting their money’s worth? Are they getting their money’s worth in the hundreds of similar cases? Are we misusing our penitentiary system? Do the other Western nations know something we do not know? Do the public officials in all three branches of our State government owe a duty, as appropriate to their respective constitutional roles, see Article III, § 43, Alabama Constitution of 1901, to reexamine our sentencing laws and their application?


author: LYONS, Justice.

text:
    BROWN ELECTRO MECHANICAL SYSTEMS, INC. v. THOMPSON ENGINEERING, INC., and Cincinnati Insurance Company.
    1011457.
    Supreme Court of Alabama.
    Oct. 11, 2002.

      H.E. Nix, Jr., Kenneth A. Hitson, Jr., and Pascal Bruijn of Nix, Holtsford, Gilli-land, Higgins & Hitson, P.C., Daphne, for appellant.
    Howard Y. Downey of Lloyd, Gray & Whitehead, P.C., Birmingham, for appellee Thompson Engineering, Inc.
    Norman E. Waldrop, Jr., and M. Kathleen Miller of Armbrecht Jackson, LLP, Mobile, for appellees.
   LYONS, Justice.

Brown Electro Mechanical Systems, Inc. (“Brown”), appeals from the trial court’s order dismissing its cross-claim against Thompson Engineering, Inc. (“Thompson”), and Cincinnati Insurance Company (“Cincinnati”). We affirm.

I. Facts and Procedural History

On May 27, 2000, Tony Sanspree was swimming near Dauphin Island. While he was in the water, he saw several ducks swim under a boat ramp. He got out of the water and stood on a metal portion of a seawall that surrounded the ramp’s boathouse. A boat lift hung from the boathouse, and for unknown reasons, Sanspree came into contact with the cables and straps of the boat lift. When Sanspree touched the cable, he was electrocuted.

Patrick G. Carrigan owned the premises and the boat lift in question; he had homeowner’s insurance through Cincinnati. Within six days of Sanspree’s death, Cincinnati contracted with Thompson to inspect the boathouse and the electrical supply of the boat lift. Thompson tested the steel cables on the boat lift and discovered that the cables carried around 110 volts of electricity. After this test, Brown, which had installed the components of the boat lift’s system, says that it warned Cincinnati and Thompson not to move any of the electrical components or conductors. Cincinnati and Thompson, however, did not heed this warning and conducted tests on the electrical junction box of the boat lift. Those tests produced an arc that burned and destroyed several of the wires in the junction box. The configuration and condition of the boat hit’s electrical wiring were materially damaged, and as a result, the components are unavailable to ascertain the condition of the system at the time of Sanspree’s death.

Sanspree’s mother and custodial parent, Karen Ann Ward, sued Carrigan, alleging that he was negligent in maintaining the safety of his premises; Brown, alleging it had negligently installed the boat hit’s electrical supply; and Cincinnati and Thompson, alleging that they had negligently destroyed material evidence. Ward later amended her complaint to add as a defendant Wihiam L. Patterson, a private consultant hired by Thompson to assist in its inspection of the boat lift. Brown then filed a cross-claim against Cincinnati and Thompson, alleging neghgent spohation of material evidence. Cincinnati filed cross-claims against Thompson and Patterson, alleging negligence, breach of contract, and breach of workmanlike performance and seeking indemnification for any damages levied against it because of the spoliation claims.

Brown’s cross-claim alleges that the tests performed by Cincinnati and Thompson destroyed evidence necessary to defend Ward’s claim against Brown and to maintain any potential actions against the individual or individuals originally responsible for wiring the boat lift or against the manufacturers of the wiring components. Brown seeks to hold Cincinnati and Thompson liable for any damages that would result if Ward’s claim against Brown is successful. The trial court dismissed Brown’s cross-claim as premature, and made its order dismissing the cross-claim final pursuant to Rule 54(b), Ala. R. Civ. P. Brown appealed.

II. Standard of Review

In Nance v. Matthews, 622 So.2d 297 (Ala.1993), this Court stated the standard of review applicable to a motion to dismiss:

“On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6) [Ala. R. Civ. P.] is whether, when the allegations of the complaint, are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [it] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [it] may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.”

622 So.2d at 299 (citations omitted).

Brown alleges that Cincinnati and Thompson negligently damaged and possibly destroyed evidence necessary for it to prepare its defense against Ward’s negligent-installation claim. Brown avers that “if [it] is liable to [Ward] for negligence in the death of Sanspree, which is denied, then in that event Cincinnati and Thompson are liable to [Brown] for all damages owed to [Ward], including all attorney’s fees, costs and expenses in defending the action and in prosecuting the cross-claim.” We can view Brown’s cross-claim either as a claim for damages against a codefendant or we can view it as a claim for indemnity. However, Brown does not argue indemnity concepts, thus foreclosing our consideration of the claim as one for indemnity.

III. Prematurity of Brown’s Cross-claim

The trial court dismissed Brown’s cross-claim as premature. This rationale is sound, if the pleading is viewed as a claim for damages. Brown argues that its cross-claim should not be dismissed, pointing to the similarities between its spoliation-of-evidence claim and the claim asserted in Smith v. Atkinson, 98 F.Supp.2d 1334 (M.D.Ala.2000) (“Smith I”). In Smith I, the United States district court denied a motion to dismiss a spoliation-of-evidence claim based on our response to a certified question in Smith v. Atkinson, 771 So.2d 429 (Ala.2000)(“Smith II”). In Smith II, we noted that this Court had never recognized spoliation of evidence as a cause of action separate and independent of negligence, and we declined to do so in that case. Smith II, 771 So.2d at 432. We then held that general principles of Alabama tort law provided a remedy for an injured party whose recovery is defeated because a third party lost or destroyed material evidence. In Smith II we established a test to determine when a party could be liable for negligent spoliation of evidence. 771 So.2d at 432. We analyzed concepts of duty, breach, and proximate cause. With respect to proximate cause, we held:

“Therefore, we conclude that, in order for a plaintiff to show proximate cause, the trier of fact must determine that the lost or destroyed evidence was so important to the plaintiffs claim in the underlying action that without that evidence the claim did not survive or would not have survived a motion for summary judgment under Rule 56, Ala. R. Civ. P.”

771 So.2d at 434 (emphasis added).

Applying this standard to an alleged tortfeasor defendant asserting a claim for damages against a spoliator of evidence other than the plaintiff, the Smith standard must be reformulated. In order for a defendant to show proximate cause, the trier of fact must determine that the lost or destroyed evidence was so important to the, defense in the underlying action that without that evidence the defendant had no defense to liability. The alternative available to a plaintiff is a way to avoid futile litigation by showing that without the spoliated evidence a summary judgment would have been entered against him had the plaintiff filed an underlying action. Id. Where, as here, the plaintiffs claim remains pending against the defendant, that alternative has no field of operation.

No showing can be made in this action at this stage of the proceedings that the lost or destroyed evidence was so important to Brown’s defense in the underlying action that without that evidence Brown had no defense to liability. Until Brown suffers a judgment at the hands of Ward and it can be established that without the lost evidence Brown had no defense to liability, a spoliation claim against a third party is premature.

Cincinnati and Thompson point to Missouri law as support for their contention that a spoliation cross-claim is premature when the underlying tort claim remains pending. In Baugher v. Gates Rubber Co., 863 S.W.2d 905 (Mo.Ct.App.1993), the Missouri Court of Appeals dismissed one defendant’s negligent-spoliation cross-claim against another defendant because “[r]eso-lution of the underlying claim would be necessary to demonstrate actual harm and prevent speculative recovery.” Baugher, 863 S.W.2d at 914.

Our application of Smith II to a cross-claim by a tortfeasor, so as to require proof that the lost or destroyed evidence was so important to the defense in the underlying action that without that evidence the defendant had no defense to liability is analogous to the Missouri court’s rationale in rejecting the cross-claim between codefendants for spoliation on the ground that it was premature.

Brown relies upon Yoder v. Kuvin, 785 So.2d 679 (Fla.Dist.Ct.App.2001), for the proposition that spoliation claims should be brought simultaneously with the underlying tort action. In Yoder, the plaintiffs brought a products-liability claim against the manufacturer of a ladder. The plaintiffs placed the ladder in the possession of a third-party bailee, who subsequently lost the ladder. The plaintiffs sought to consolidate a spoliation claim and a breach-of-bailment claim against the third-party bail-ee in the underlying products-liability action. The trial court dismissed the plaintiffs’ spoliation claim because it held that the claim was barred by the statute of limitations. Id. at 680.

The Florida District Court of Appeals held that the statute of limitations had not run because the injury would not occur until the underlying action had been decided. The court then quoted Miller v. Allstate Insurance Co., 650 So.2d 671, 673-74 (Fla.Dist.Ct.App.1995), stating that “ ‘where a viable means exists to pursue the underlying products liability claim, that cause of action must be pursued prior to, or together with, the spoliation of evidence claim.’ ” Yoder, 785 So.2d at 681. The Florida court also pointed to “judicial economy” as a reason for allowing the plaintiffs’ claims to be brought simultaneously with the underlying tort claim. Id.

The ladder manufacturer in Yoder filed a cross-claim against the alleged spoliator. The Yoder opinion does not address the viability of the cross-claim, does not state whether the cross-claim sounded in indemnity or damages, and does not address the consolidation of that claim with the plaintiffs’ claims. Even if we found Florida law persuasive, the holdings in Yoder as to limitations periods and the propriety under Florida law of consolidating a plaintiffs underlying products-liability claim with a damages claim for negligent spoliation do not support Brown’s contention that it has stated a viable cross-claim.

TV. Conclusion

The trial court properly dismissed Brown’s cross-claim against Cincinnati and Thompson. The trial court’s order is affirmed.

AFFIRMED.

MOORE, C.J., and HOUSTON, JOHNSTONE, and WOODALL, JJ., concur.


author: BROWN, Justice.

text:
    NORTHCOM, LTD., et al. v. R.E. JAMES et al.
    1002072.
    Supreme Court of Alabama.
    Oct. 11, 2002.

      Richard W. Whittaker, Enterprise, for appellants.
    Joe C. Cassady of Cassady, Fuller & Marsh, L.L.P., Enterprise, for appellees.
   BROWN, Justice.

Northeom, Ltd., Jerry Oakley, and William R. McDonald III, the defendants in an action pending in the Coffee Circuit Court, appeal from an order issued on July 17, 2001. That order held that the defendants had failed to initiate arbitration, removed the case from the trial court’s administrative docket, and ordered the defendants to answer the complaint against them filed by R.E. James, Roberta Gwenn James, and Kathy James Pittman (hereinafter collectively referred to as “the plaintiffs”). Oakley and McDonald are shareholders in Northeom, Ltd., and we will refer to all three defendants collectively as “Northeom.” We reverse the trial court’s order and remand with instructions.

Facts and Procedural History

In 1986, Northcom entered into a contract with the plaintiffs for the purchase of two radio stations. The contract contained the following arbitration clause:

“Arbitration. In the event of any dispute arising under this agreement, the dispute shall be settled by arbitration under the rules of the American Arbitration Association with Buyer and Seller each to appoint an arbitrator, and the two (2) arbitrators thus appointed to select [a] third arbitrator. The decision of said arbitrators shall be binding on all parties hereto, and may be entered as a final judgment in a court of competent jurisdiction.”

In May 1994, the plaintiffs brought a breach-of-contract action against North-com in the Coffee Circuit Court. North-com moved to compel arbitration, but the trial court denied the motion. Northcom appealed the trial court’s order denying arbitration to this Court. We reversed the order of the trial court, holding that the plaintiffs were required to arbitrate their claims against Northcom pursuant to the arbitration agreement in the contract. See Northcom, Ltd. v. James, 694 So.2d 1329 (Ala.1997).

On remand to the Coffee Circuit Court, the plaintiffs purported to continue the litigation of this case. The record indicates that the plaintiffs served interrogatories on Northcom in February 1998. Northcom refused to answer the interrogatories. On May 5, 1998, the plaintiffs filed a motion to compel Northcom to answer the interrogatories, and on May 7, 1998, the trial court granted that motion. On May 15, 1998, Northcom moved the trial court to comply with this Court’s remand order and stay the action pending arbitration. After a hearing on the motion, the trial court entered a stay in the case on September 8, 1998, pending arbitration.

On January 27, 1999, the plaintiffs filed with the Coffee Circuit Court a motion to “require defendants to appoint an arbitrator.” The trial court granted the motion on February 12, 1999, and ordered North-com to appoint an arbitrator within 10 days. Northcom then moved the trial court to set aside its February 12, 1999, order, arguing that the plaintiffs had not yet initiated arbitration proceedings. The trial court denied Northcom’s motion on August 26, 1999. After the trial court denied a motion to reconsider its order, Northcom filed a petition for a writ of mandamus with this Court; we denied the petition on February 10, 2000. Northcom moved the trial court to dismiss the plaintiffs’ case against it. On July 17, 2001, the trial court entered the following order:

“1. The Court, by order dated ... September [8], 1998, stayed proceedings in this cause and directed the parties to proceed with arbitration pursuant to the terms of the subject arbitration agreement.
“3. Plaintiffs’ institution of this action clearly evidences the existence of a dispute arising under the agreement. Plaintiffs appointed the arbitrator in compliance with the arbitration agreement more than two years ago and afforded notice thereof to the Defendants.
“4. The Defendants, Northcom Ltd., Inc., Jerry W. Oakley, and William R. McDonald, III, are the parties who moved to compel (i.e., gave written notice of intent to arbitrate) and seek the benefits of arbitration in resolving the contract dispute in this case. The Alabama Supreme Court, in its May 9,1997, opinion reversing this Court’s denial of the motion to compel arbitration even referred to Defendant Northcom as the party ‘requesting arbitration.’
“5. Defendants have failed and refused to appoint an arbitrator as per the terms of the arbitration agreement, although specifically ordered by the Court to do so in February 1999. Defendants’ non-compliance with the order to commence arbitration and failure to take affirmative steps by joining with Plaintiffs in initiating the arbitration process through appointment of an arbitrator is deemed a waiver thereof.
“IT IS, THEREFORE, ORDERED AND ADJUDGED as follows:
“1. That the Plaintiffs’ ‘Motion for Court to Order Circuit Clerk to Appoint Arbitrator’ is denied.
“2. That the Defendants’ ‘Motion to Dismiss Plaintiffs’ Complaint’ is denied.
“3. That this case is transferred from the administrative docket and the stay of further discovery and proceedings pursuant to Plaintiffs’ complaint is lifted.
“4. That the Defendants shall file their respective answers to Plaintiffs’ complaint within 14 days.”

It is undisputed that although the plaintiffs purported to select an arbitrator, they never initiated arbitration proceedings after this Court’s May 9, 1997, opinion. Northcom now appeals the trial court’s July 17, 2001, order.

Analysis

Northcom argues that the trial court’s July 17, 2001, order is due to be reversed because, it argues, the order is based upon the erroneous assumption that Northcom bears the burden of initiating arbitration proceedings in this case and because the order holds that Northcom waived its right to arbitrate by failing to initiate such proceedings. We agree.

A trial court is vested with the authority “ ‘to manage its affairs in order to achieve the orderly and expeditious disposition of cases.’ ” Mangiafico v. Street, 767 So.2d 1103, 1105 (Ala.2000) (quoting Iverson v. Xpert Tune, Inc., 553 So.2d 82, 87 (Ala.1989)). However, a trial court may not enter orders compelling parties to act in a manner that is inconsistent with the parties’ own arbitration agreement.

“When a trial court compels arbitration, it must do so in a manner consistent with the terms of the arbitration provision. See Ex parte Cappaert Manufactured Homes, 822 So.2d 385, 387 (Ala.2001), (‘[section] 5 [of the Federal Arbitration Act] mandates that the method set forth in the arbitration agreement be followed’); Southern Energy Homes Retail Corp. v. McCool, 814 So.2d 845 (Ala.2001)(trial court directed to vacate its order because it failed to compel arbitration in a manner consistent with the terms of the agreement between the parties); Ex parte Dan Tucker Auto Sales, [Inc., 718 So.2d 33 (Ala.1998) ] (trial court erred in assigning administrative fees of arbitration to the defendant when the Rules of the [American Arbitration Association] provided for the relief of a party in the event of a hardship).”

BankAmerica Hous. Servs. v. Lee, 833 So.2d 609, 618 (Ala.2002). Furthermore, a trial court may not mandate “mechanisms and procedures inconsistent with the mechanisms and procedures set out in the [Commercial Arbitration] Rules [of the American Arbitration Association].” 833 So.2d at 618.

This Court has already held that the contract between Northcom and the plaintiffs contains a valid arbitration provision and that the plaintiffs must, in accordance with the contract, submit their claims against Northcom to arbitration. See Northcom, Ltd. v. James. The arbitration provision in this case clearly states that arbitration is to take place “under the rules of the American Arbitration Association” (“the AAA”).

“Parties to a contract are bound by pertinent references therein to outside facts and documents. Green Springs Associates, Ltd. v. Green Springs Village, Ltd., 577 So.2d 872 (Ala.1991); Ben Cheeseman Realty Co. v. Thompson, 216 Ala. 9, 112 So. 151 (1927). ‘Other writings or matters contained therein, which are referred to in a written contract may be regarded as incorporated by the reference as a part of the contract and[,] therefore, may properly be considered in the construction of the contract.’ 17A Am.Jur.2d Contracts § 400 (1991). The contract between [the parties in this case] declares that disputes are to be resolved through binding arbitration according to the AAA’s Commercial Arbitration Rules; therefore, the agreement incorporates the language of the Commercial Arbitration Rules regarding the resolution of disputes.”

Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 36 (Ala.1998)(second alteration added). Thus, because the contract between Northcom and the plaintiffs refers to the AAA’s rules governing the arbitration of disputes, those rules are made applicable to this case by the contract, and they govern this dispute, including the procedures for initiating the arbitration proceedings.

The Commercial Arbitration Rules of the AAA, which govern the transaction in this case, provide as follows:

“R-4. Initiation under an Arbitration Provision in a Contract
“(a) Arbitration under an arbitration provision in a contract shall be initiated in the following manner:
“i. The initiating party (the ‘claimant’) shall, within the time period, if any, specified in the contract(s), give to the other party (the ‘respondent’) written notice of its intention to arbitrate (the ‘demand’), which demand shall contain a statement setting forth the nature of the dispute, the names and addresses of all other parties, the amount involved, if any, the remedy sought, and the hearing locale requested.
“ii. The claimant shall file at any office of the AAA two copies of the demand and two copies of the arbitration provisions of the contract, together with the appropriate filing fee as provided in the schedule included with these rules.
“iii. The AAA shall confirm notice of such filing to the parties.”

Our caselaw clearly dictates that under the Commercial Arbitration Rules, the party asserting a legal claim, i.e., the plaintiff, must initiate arbitration proceedings.

“[T]he Commercial Arbitration Rules state[ ] that the ‘initiating party (hereinafter claimant)’ shall file the ‘appropriate filing fee’ as mandated in the schedule accompanying the rules. That same rule later explains that after the ‘claimant ’ has stated the nature of the dispute, the respondent shall file an answering statement and send that statement to the claimant. The word ‘claimant’ is defined in Black’s Law Dictionary (6th ed.1990) as ‘[o]ne who claims or asserts a right, demand or claim.’ The word ‘respondent’ is defined in Black’s as ‘one who makes an answer to a bill or other proceeding in equity’ or one ‘who contends against an appeal.’ Considering these words in light of their plain meaning, we conclude that the ‘claimant’ is the party who makes a demand upon another party and that the ‘respondent’ is the party who must answer the allegations.
“If we apply these general definitions to the facts of this case, it would be awkward to interpret the Commercial Arbitration Rules to mean that Tucker [the defendant below] is the claimant. Such an interpretation would force Tucker to state the nature of the claims against itself. Equally as awkward, this interpretation would then force Phelps [the plaintiff below] to answer the very complaint that he filed against Tucker. It is unreasonable to believe that the parties in this case intended to apply the terms ‘initiating party’ and ‘claimant’ to Tucker, the party defending itself against Phelps. Judging from the plain meaning of these labels as they are used in the Rules and from what the parties intended by the terms ‘claimant’ and ‘initiating party,’ it is clear that Phelps is the claimant and Tucker is the respondent.”

Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d at 36 (some alterations original; some alterations added). See also Huntley v. Regions Bank, 807 So.2d 612 (Ala.2001)(rejecting Regions Bank’s argument that Huntley, the defendant, failed to properly invoke the arbitration agreement and holding that Regions Bank, as the plaintiff, bore the burden of properly invoking the arbitration agreement); and Universal Underwriters Life Ins. Co. v. Dutton, 736 So.2d 664 (Ala.1999)(holding that the plaintiffs were the “claimants” under the AAA’s Commercial Arbitration Rules and that the claimants, as the initiating parties, were responsible for advancing the filing fee).

Thus, in this case, under the AAA’s Commercial Arbitration Rules, the plaintiffs, as the party initiating this legal action, are the claimants, and Northcom, the defendant, is the respondent. As the claimants, the plaintiffs must pursue their claims against Northcom by giving North-com, the respondent, a written notice, or demand, for arbitration. The demand must meet all of the requirements specified by the Commercial Arbitration Rules. Furthermore, the plaintiffs must file two copies of the demand with the AAA, along with a copy of the arbitration agreement and a filing fee. In other words, the plaintiffs must initiate arbitration proceedings according to the AAA rules. The record before us indicates that the plaintiffs have not done so; instead, they have purported to “appoint” an arbitrator, and they allege that Northcom must do the same. Appointing an arbitrator does not initiate the arbitration process as provided in the Commercial Arbitration Rules.

Moreover, although we are aware that Rule R-14(a) of the Commercial Arbitration Rules allows parties to agree on the method for selecting arbitrators as the parties have done in this case, this provision does not address the initiation of arbitration proceedings as defined in Rule R-4 of the Commercial Arbitration Rules.

The trial court erred in ordering the parties to commence arbitration in a manner that conflicted with the provisions of the arbitration agreement. Furthermore, it is clear that Northcom could not have waived its right to arbitrate by failing to initiate arbitration proceedings when it never had the burden to do so under the terms of the arbitration agreement. Thus, the trial court erred in concluding that Northcom waived its right to arbitrate. Therefore, we reverse the July 17, 2001, order of the trial court and remand the case. On remand, the trial court shall order the plaintiffs to initiate arbitration in accordance with their agreement to arbitrate and shall stay the case pending arbitration or shall dismiss the case if the plaintiffs persist in failing to initiate arbitration.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

MOORE, C.J., dissents.

      . A more detailed statement of facts is contained in our earlier opinion in this case, Northcom, Ltd. v. James, 694 So.2d 1329 (Ala.1997).

      . Both parties agree that the arbitration is to be conducted pursuant to the Commercial Arbitration Rules. Moreover, Rule R-l of the Commercial Arbitration Rules provides, in part:
      "The parties shall be deemed to have made these [Commercial Arbitration Rules] a part of their arbitration agreement whenever they have provided ... for arbitration by the AAA of a domestic commercial dispute without specifying particular rules."

      (Emphasis added.)


author: MONROE, Judge. THOMPSON, Judge,

text:
    Roy A. GIBBS, Jr., et al. v. STATE of Alabama DEPARTMENT OF INDUSTRIAL RELATIONS, SECOND INJURY TRUST FUND.
    2990424.
    Court of Civil Appeals of Alabama.
    July 28, 2000.
    Rehearing Denied Oct. 13, 2000.

      Ralph E. Coleman of Coleman, Friday & Clem, Birmingham, for appellant Roy A. Gibbs, Jr.
    Frank D. Marsh, general counsel, and Craig A. Donley, asst, general counsel, Department -of Industrial Relations, for appellee.
   MONROE, Judge.

In 1992, Roy A. Gibbs, Sr., while working for Jim Walter Resources, Inc., suffered a work-related injury. He had suffered a previous work-related injury. Because of this second injury, he was determined to be entitled to benefits under the Second Injury Trust Fund (SITF). He received benefit payments from the SITF, until he died in 1998. He died of a cause unrelated to his work-related accidents.

After his father’s death, Roy A. Gibbs, Jr., and other dependents filed a declaratory judgment action seeking a continuation of the workers’ compensation benefits, claiming they, as dependents, were entitled to receive benefits. The parties filed a stipulation of facts and briefs in support of their arguments. The trial court denied the declaratory judgment, holding that the SITF had no obligation to make benefit payments to the dependents. Gibbs, Jr., and other surviving dependents appealed to this court, claiming that the trial court’s order was erroneous. We agree.

The facts are not in dispute; we are to determine only whether the. trial court properly applied the law to those facts. A trial court’s decisions on legal issues are reviewed de novo and are not entitled to a presumption of correctness on appeal. Stewart v. Goodyear Tire & Rubber Co., 686 So.2d 1225 (Ala.Civ.App.1996).

The trial court’s order states that the parties stipulated to the following facts. The worker was injured while working in the line and scope of his employment with Jim Walter Resources, Inc., on March 28, 1992. He had previously suffered work-related injuries. The worker was found to be qualified for, and entitled to receive, benefits under the SITF. The SITF paid him benefits until he died in July 1998.

Section 25-5-57(a)(5), Ala.Code 1975, reads:

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

Because the worker died from causes unrelated to his work-related accident, the second sentence of § 25 — 5—5V(a)(5) is controlling.

The statute is clear: When the amount of disability benefits due the worker has been established, if the worker then dies from a cause unrelated to the work-related injury, his dependents are entitled to the benefits that would have been due to the worker. “Essentially, the [dependent] steps into the shoes of the worker, to continue receiving the benefits owed.” Chatham Steel Corp. v. Shadinger, 768 So.2d 969 (Ala.Civ.App.1999). However, the dependents cannot recover more benefits than the maximum they would have been entitled to had the worker died from his work-related injury. Section 25-5-60, Ala.Code 1975, provides the maximum amount of benefits allowed in cases in which the worker dies from a work-related injury. “In other words, if a worker is entitled to receive workers’ compensation disability benefits, but dies of an unrelated cause, his dependents are entitled to those benefits, or to the maximum amount of benefits they would have received had he died of a work-related injury, whichever amount is lower.” Chatham Steel Corp., 768 So.2d at 971.

Under the statute, when a worker dies from a cause unrelated to his work-related injury, in order for the worker’s dependents to be entitled to recover benefits, the amount of the worker’s disability benefits he was entitled to must have been established. In denying the dependents benefits, the trial court found that “there was no agreement as to the amount of future payments due or to any specific degree of disability, [and] therefore [that there was] no balance of payments due.” However, under 25-5-57(a)(5), an agreement is not required when the court has ascertained the degree of permanent total disability. In Vann Express, Inc. v. Phillips, 539 So.2d 296, 297 (Ala.Civ.App.1988), discussing § 25-5-57(a)(5) and the phrase “judicially ascertained,” our supreme court stated: “[W]e find the phrase ‘judicially ascertained’ to require that a court of competent jurisdiction consider the matter and then enter a final order setting forth the extent of the injured employee’s disability.” The Alabama Supreme Court further stated that the “particular statutory language reflects legislative intent to insure that disability determinations not be made following an employee’s death.” Phillips, 539 So.2d at 297.

In July 1994, the court entered an order finding that in 1992 the worker had suffered previous injuries and that he had sustained a 15% permanent disability for the loss of his left eye; a 21% permanent partial impairment for an injury to his right leg; and a 64% permanent impairment for a back and spinal-cord injury. After sustaining these injuries, Gibbs suffered an additional injury for which he sought compensation from the SITF. In its 1994 order, the court further stated that the worker was “entitled to be paid pursuant to the Second Injury Trust Fund for total permanent disability as set out hereafter.” The court ordered that he receive $165 per week from the SITF, until December 1997. At that time, the SITF was to pay the worker $385 per week throughout his disability.

SITF argues that because the order provides that SITF was to pay the worker benefits “throughout his disability,” SITF’s obligation ceased when the worker’s disability ceased. SITF argues that his disability ended at his death. Thus, SITF claims the dependents are not entitled to any further payments. This argument is directly contrary to the language and the legislative intent of § 25-5-57(a)(5).

The trial court erred in holding that the worker’s dependents were not entitled to benefits under § 25-5-57(a)(5). Therefore, the judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.-

ROBERTSON, P.J., and YATES, J., concur.

CRAWLEY and THOMPSON, JJ., dissent.

THOMPSON, Judge,

dissenting.

I dissent for the reasons set forth in my dissents in Chatham Steel Corp. v. Shadinger, 768 So.2d 969 (Ala.Civ.App.1999) and Drummond Co. v. Lolley, 786 So.2d 509 (Ala.Civ.App.2000).

CRAWLEY, J., concurs.