author: CRAWLEY, Presiding Judge. MURDOCK, Judge,

text:
    Dave M. McGLATHERY v. Fred RICHARDSON et al.
    2040946.
    Court of Civil Appeals of Alabama.
    June 2, 2006.

      Gary P. Wolfe and Larry 0. Daniel, Jr., of Wolfe, Jones, Boswell, Wolfe & Hamner, Huntsville, for appellant.
    Claude E. Hundley III and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellees.
   CRAWLEY, Presiding Judge.

Dave M. McGlathery, the pastor of the Pine Grove Missionary Baptist Church, appeals an order of the Madison Circuit Court requiring that the church hold a general conference in which it is to consider a grievance filed with the church by Fred Richardson, Robert Drake, John Washington, Othel Washington, Denver A. Betts, Larry Abernathy, Clarence Davis, William H. Readus, Ronnie Smith, W.T. Washington, Dexter Kennedy, Richard Surles, Wayford Davis, and Nero Tucker (hereinafter collectively referred to as “Richardson”). McGlathery first argues that the dispute is an ecclesiastical dispute outside the jurisdiction of a civil court. McGlathery further argues that the order improperly infringes on the authority of the church’s Board of Deacons (“the Board”), that the order is too ambiguous to be performed or to be enforceable, and that the trial court’s order requiring the general conference is inconsistent with a prior order requiring the church to utilize article X of its bylaws to resolve the grievance. We dismiss the appeal.

At the root of this case is an apparent dispute among some members of the church as to the effectiveness of McGlath-ery as pastor. Apparently, several complaints against McGlathery were made by parishioners beginning in 2002. The Board, which is composed of 16 of the deacons from the church, investigated those complaints, counseled with McGlath-ery about concerns raised, and formulated plans to resolve remaining issues. The Board then held a meeting at which the Board, with four members abstaining, passed a vote of confidence in McGlathery.

Some of the members of the church were unhappy with the Board’s decision to retain McGlathery and filed an action seeking, among other things, injunctive relief regarding McGlathery’s handling of church business. That action was dismissed in May 2003; no appeal followed.

In April 2004, Richardson filed suit against McGlathery and the Board, alleging that they had failed to call a meeting after a specific request, had failed to call periodic meetings, had failed to call monthly meetings, had failed to maintain a roll of active members, had usurped the members’ right to participate in a general church conference, and had failed to allow access to church records. Richardson ultimately sought to compel the Board to call a general church conference to permit the church as a representative body to consider the retention of McGlathery. After a hearing, the trial court ordered on August 6, 2004, that the church use the church roll and article X of the church’s bylaws to resolve any grievance. When the Board did not call a general conference by October 2004, Richardson filed what he entitled a “Motion to Set Time Limits for Grievance Consideration and Holding of Church Conference,” in which he sought to have the trial court order specifically that a general conference be held in order to resolve the grievance. The trial court granted that motion, ordering specifically that the Board call a general conference to meet by January 15, 2005. That order was certified as final pursuant to Rule 54(b), Ala. R. Civ. P. McGlathery appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

Both parties agree that the appropriate standard of review in this case is de novo review. However, neither party properly characterizes the judgment in the present case, which appears to be a permanent injunction. Because the trial court’s judgment was not based on any testimonial evidence and instead was based only upon documentary evidence consisting primarily of the church’s articles of incorporation and bylaws, we review the trial court’s issuance of the injunction de novo. TFT, Inc. v. Warning Sys., Inc., 751 So.2d 1238, 1241 (Ala.1999); see also City of Dothan v. Eighty-Four West, Inc., 871 So.2d 54, 60 (Ala.Civ.App.2003) (on application for rehearing) (Murdock, J., concurring specially) (explaining that the standard of review of a permanent injunction when the sole issue is an issue of law is de novo review).

McGlathery contends that this matter arises from an ecclesiastical dispute and, therefore, that it is not within the jurisdiction of a civil court. Richardson argues that the dispute at the heart of this case arises from Richardson’s and McGlathery’s differing constructions of the church’s articles of incorporation and bylaws and not from an ecclesiastical dispute.

“As is the case with all churches, the courts will not assume jurisdiction, in fact has none, to resolve disputes regarding their spiritual or ecclesiastical affairs. However, there is jurisdiction to resolve questions of civil or property rights. Williams v. Jones, 258 Ala. 59, 61 So.2d 101 (1952).
“A[n] ... accurate reflection of present Alabama law on this subject is found in In re Galilee Baptist Church, 279 Ala. 393,186 So .2d 102 (1966) ....
“... As was stated in Galilee:
“ ‘... Spiritualities are beyond the reach of temporal courts, and a pastor may be deposed by a majority of the members at a congregational meeting at any time, so far as the civil courts are concerned, subject only to inquiry by the courts as to whether the church, or its appointed tribunal has proceeded according to the law of the church.... ’
“We recognize here there are civil, as opposed to ecclesiasticalf,] rights which have cognizance in the courts. A determination of whether the fundamentals of due process have been observed can be made in the judicial arena.”

Abyssinia Missionary Baptist Church v. Nixon, 340 So.2d 746, 748 (Ala.1976).

The Board’s decision not to call a meeting to discuss the issues Richardson seeks to raise because the Board did not think that the spiritual health of the church would be advanced by such a meeting is an ecclesiastical decision of the church government and cannot be overridden by a civil court. In other words, the trial court did not have jurisdiction to entertain Richardson’s complaint insofar as it requested that the Board be compelled to call a general conference. Accordingly, McGlathery’s appeal from the trial court’s order requiring that a general conference be called to deal with Richardson’s grievance is dismissed. See Jones v. Sears, Roebuck & Co., 342 So.2d 16, 17 (Ala.1977) (stating that a void judgment will not support an appeal); and Ruzic v. State ex rel. Thornton, 866 So.2d 564, 568-69 (Ala.Civ. App.2003) (same).

APPEAL DISMISSED.

THOMPSON, PITTMAN, and BRYAN, JJ., concur.

MURDOCK, J., concurs specially, with writing.

MURDOCK, Judge,

concurring specially.

I first note that the fact that the church at issue is incorporated under Alabama law does not affect my analysis in this case. As our courts have stated:

“[I]t has been observed that each religious denomination has its own distinct form of government, and the courts refrain, as far as possible, from interfering when the office or function is purely ecclesiastical or spiritual.... To the end that church property may be the better conserved and transferred, it is provided by statute that churches may incorporate .... There is nothing in our decisions and the statutory provisions obtaining which in any way stipulates that the incorporated religious bodies or churches shall be governed otherwise than by their particular form of church government. The fact of incorporation is not a surrender of anything to another or different entity; but it is simply the creation of a legal entity to hold its property, convey or incumber the same pursuant to the due authorization of its membership — the rules of the church made and provided for the expression of the will and judgment of its members after due notice.”

Blount v. Sixteenth Street Baptist Church, 206 Ala. 423, 426, 90 So. 602, 604 (1921). In particular, in the context of a case involving the predecessor to Ala.Code 1975, § 10-4-20 et seq., our Supreme Court stated:

“Wherever there is an incorporated church, there are two entities, the one, the church as such, not owing its ecclesiastical or spiritual existence to the civil law, and the legal corporation, each separate though closely allied. The church in the ordinary acceptation of the word, is a voluntary association of its members, united together by covenant or agreement, for the purpose of maintaining the public worship of God, observing the ordinances of His house, the promotion of the spirituality of its membership, and the spread of divine truth among others, as they understand and teach it. It is purely voluntary, and is not a corporation nor a quasi corporation .... On the other hand, a corporation is formed for the acquisition and taking care of the property of the church, and is in no sense ecclesiastical in its functions.
“In Sale v. The First Regular Bap. Church, 62 Iowa 26 (S.C. 49 Am. Rep. 136) [ (1883) ], the church was incorporated and the proceeding was by mandamus to reinstate a member expelled by the church. In drawing the distinction between the church and the corporation the court said: ‘The only and primary object of the corporation is the acquisition and taking care of property. The rules of the church as to the discipline of members have no relation to the corporate property or corporate matters .... By virtue of her church membership, the plaintiff became a member of the corporation, organized for religious and ecclesiastical purposes. The corporation was not organized for pecuniary profit. No such profit can accrue to any member. No property interest, or any other valuable civil right, has been affected by the action of the church. The plaintiff has not, and cannot suffer any civil damages whatever. This view is in harmony with Hardin v. Baptist Church, 51 Mich. 137 (S.C. 47 Am. Rep. 555) [ (1883) ], where numerous authorities are cited.’ In this case it was held that mandamus would not lie to restore to membership one claiming to have been wrongfully removed from a church, notwithstanding that church membership was a condition of membership of the corporation. We refer in this connection to the case of Ryan v. Cudahy, 157 Ill. 108 (1895)], as reported in the 49 vol. Of the Lawyer’s Reports Annotated, 353, where will be found on page 384, under the head of ‘Ecclesiastical Tribunals,’ a synopsis of the decisions of a great number of courts on the subject in hand, sustaining the views we announce.
“ ‘The two bodies, viz.: the corporation and the church, although one may exist within the pale of the other, are in no respect correlative. The objects and interests of the one are moral and spiritual; the other deals with things purely temporal and material.’ Petty v. Tooker], 21 N.Y. 267 [ (1860) ]; Nance v. Busby, 91 Tenn. 303 [(1892)].
“The foregoing is quite sufficient to show that the spiritual entity called a church, made up of members belonging to it, existing without any special law to that effect, is a different and distinct body in the contemplation of law, from the same body when incorporated under statutes for the- purpose — the two having different functions to perform, the one religious, and the other civil.”

Hundley v. Collins, 131 Ala. 234, 239-41, 32 So. 575, 577 (1902). After Hundley was decided, the Supreme Court further opined:

“It is firmly established that courts decline to assume any jurisdiction as regards the purely ecclesiastical or spiritual feature of the church. ...
“On the other hand, in many eases we have recognized the right and duty of civil courts to exercise jurisdiction to protect the temporalities of the church, such as where civil rights or rights of property are involved.”

Williams v. Jones, 258 Ala. 59, 61, 61 So.2d 101, 102 (1952). More recently, in Abyssinia Missionary Baptist Church v. Nixon, 340 So.2d 746 (Ala.1976), the Supreme Court reiterated the limited jurisdiction of our courts in cases involving churches: “As is the case with all churches, the court will not assume jurisdiction, in fact has none, to resolve disputes regarding their spiritual or ecclesiastical affairs. However, there is jurisdiction to resolve questions of civil or property rights.” 340 So.2d at 748 (citing Williams).

The present case arises from allegations that a pastor is overbearing and uncooperative and from a dispute as to how the Board of Deacons is to respond to complaints by some church members as to the church’s leadership. The issue in the present case does not relate to church property, nor does it relate to any property right or “civil” right of Richardson as those terms have long been articulated in the context of church disputes. See Hund-ley, supra, and Williams, supra.

As our Supreme Court stated in Hund-ley:

“In this case, it is alleged the petitioner was both a trustee and elder of the church. To be a trustee, the statute required him to be a member of the church; and it also appears that under the rules of the church, elders must be members. Trusteeship and eldership are then dependent upon membership in the church. It follows, if one is excluded from membership, his office of trustee or elder ceases by virtue of the act of exclusion. Each of these offices it appears is filled by the members of the church, acting as a church.
“It is averred in the petition, that on the 11 July, 1900, at a meeting of such members of the church as were then assembled, such action was taken as was intended to be an exclusion of petitioner from said church. The petitioner treats the act as one of exclusion, since the prayer of the petition is, that he ‘be restored to membership in said church, and to his relation as elder therein and thereof.’ It is not pretended, nor can it be, that this act was done by the corporation, and not by the church. The petition sets out a paper drawn and presented as the foundation of the church’s action. It begins by an admonition addressed to the ‘Dear Brethren and Sisters,’ — an address of Christian endearment usual among church people, — reminding them that it is their solemn duty to obey the word of God, in that it commands them to withdraw themselves from every brother that walketh disorderly, proceeding to aver wherein the petitioner and certain others had been guilty of disorderly conduct; and ends by declaring it to be their duty to withdraw Christian fellowship from petitioner and others. No one can presume that such a paper referred to the brethren and sisters of the church in their corporate capacity; but by the language employed it must be supposed, — since it is not applicable in any other connection, — that those addressed were the members of the church sitting in conference, where the spiritual well-being and concerns of the ecclesiastical, spiritual body were to be considered and passed on. There were no property interests involved, nothing touching what are termed the tempo-ralities of the church as contradistin-guished from its spiritualities. The petitioner had no pecuniary interests, in any direction, involved in the proceeding, and it did not touch any of his civil rights at any point. It may be, the church proceeded irregularly according to common usage in such cases; but it is averred, that this church ‘is of the denomination known as “Disciples of Christ, of which Alexander Campbell was the original preacher, if not the founder, and that ‘each church is of itself independent, not subject to the control of any higher or other ecclesiastical judicature.’ As an ecclesiastical body, therefore, it was a law unto itself, self-governing and amenable to no court, ecclesiastical or civil, in the discharge of its religious functions. It could make and unmake its rules and regulations for the reception and exclusion of members, and in reference to other matters; and what other body religious or civil could question its right to do so? Certainly, if it violated no civil law, the arm of civil authority was short to reach it. Admitting, therefore, as we must on demurrer, that petitioner had no notice of this proceeding, and that it was irregular according to common usage, the church being independent, and not subject to higher powers, and being a law unto itself for its own procedure in religious matters, what it did towards the expulsion of petitioner was not unlawful, even if it was not politic and wise. If the civil courts may in this instance interfere to question the exclusion of petitioner, they may do so, in any instance where a member of that or any other church is removed, on the allegation of irregular and unfair proceedings for the purpose. This would open a door to untold evils in the administration of church affairs, not consistent with the principles of religious freedom as recognized in this country, where there is no established church or religion, where every man is entitled to hold and express with freedom his own religious views and convictions, and where the separation of state and church is so deeply intrenched in our constitutions and laws.
“These views are in accord with the decisions of other States and of the Supreme Court of the United States.”

131 Ala. at 241-43, 32 So. at 577-78 (emphasis added).

Likewise, in In re Galilee Baptist Church, 279 Ala. 393, 186 So.2d 102 (1966), our Supreme Court stated:

“[T]he court was without authority to grant to Thornes the right to occupy the pulpit of the church subject to the condition that he call a congregational meeting on the date specified in the decree. Such action would in effect amount to the court taking over and running the affairs of the Galilee Baptist Church. This is beyond the jurisdiction of the court.”

279 Ala. at 397, 186 So.2d at 106. Perhaps even more emphatically, in Williams, supra, in which the trial court was asked “to assume control of the conduct of the internal affairs of the church and to hold an election to determine whether Williams should be retained as pastor, after first determining who were members of the church qualified to participate in the election,” our Supreme Court stated, “[w]e have been unable to find any authority which even remotely tends to uphold the jurisdiction of the civil courts in a matter of this kind.” 258 Ala. at 67, 61 So.2d at 109.

I further note that in Odoms v. Woodall, 246 Ala. 427, 429, 20 So.2d 849, 851 (1945), the Supreme Court stated:

“The civil courts will not take jurisdiction of a controversy arising out of the removal of a minister if the right to the position is merely spiritual or ecclesiastical. But if he has a civil or property right in his position, the civil courts will protect that right.”

(Emphasis added.) See also Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, 426 U.S. 696, 714-15, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976) (“[I]t is the essence of religious faith that ecclesiastical decisions are reached and are to be accepted as matters of faith whether or not rational or measurable by objective criteria. Constitutional concerns of due process, involving secular notions of ‘fundamental fairness’ or impermissible objectives, are therefore hardly relevant to such matters of ecclesiastical cognizance.” (footnote omitted)).

Richardson argues that because the church did not follow the provisions of its articles of incorporation and bylaws, it is appropriate for a civil court to take jurisdiction over this dispute. As the foregoing authorities illustrate, however, it is the nature of the underlying dispute that determines whether a court has jurisdiction to consider matters of church procedure. As Hundley clearly articulates, if the substantive dispute is spiritual or ecclesiastical in nature, it is irrelevant to the civil court whether the church followed its own procedures, per se; the civil court has no jurisdiction to consider the matter. See also, e.g., Caples v. Nazareth Church of Hopewell Ass’n, 245 Ala. 656, 18 So.2d 383 (1944). Accord Sale v. First Regular Baptist Church, 62 Iowa 26, 17 N.W. 143 (1883); and Evans v. Shiloh Baptist Church, 196 Md. 543, 77 A.2d 160 (1950).

The judgment at issue does not concern Richardson’s civil rights or property rights. Unlike Odoms, supra, this case does not involve a claim by a pastor that he has a property or contract right not to be removed from his employment position. Instead, the alleged “right” at issue involves whether a church member has a right to cause the dismissal of a pastor or to cause a meeting to discuss the dismissal of a pastor. In the manner presented in this case, such a “right” is an ecclesiastical matter. The Board of Deacons resisted Richardson’s request that it consider the grievance and that it call a general conference to consider the grievance, in part, on the grounds that Richardson’s request is part of a protracted attempt by a disgruntled minority to continue strife in the

church and that it would be harmful to the spiritual welfare of the church that the Board of Deacons serves to have such a meeting, particularly since the Board had, within the last two years, conducted an extensive investigation and review of McGlathery’s services as pastor and given him an overwhelming vote of confidence. In other words, the Board of Deacons has made a judgment that it would not be in the best interest of the church for it to reconsider at this time whether McGlath-ery should no longer be pastor or to involve the members of the church in such a consideration. The law does not authorize a court to substitute its judgment for that of the duly elected church leaders as to such an ecclesiastical matter.

Despite the foregoing longstanding authority, Richardson cites more recent Supreme Court cases and argues that the issue in this case involves civil rights or property rights and due-process concerns. After reviewing the cases on which Richardson relies, as well as other cases, I am not convinced that the Supreme Court has overruled its longstanding precedent and substantially expanded the jurisdiction of civil courts as to cases like the present case simply on the ground of some alleged “due process” violation. For example, in Yates v. El Bethel Primitive Baptist Church, 847 So.2d 331 (Ala.2002), the Supreme Court noted:

“In Williams v. Jones, 258 Ala. 59, 62, 61 So.2d 101, 104 (1952), we cited several of our cases in which, ‘the civil courts of this state have taken jurisdiction of disputes between factions of Baptist churches or of churches similarly governed on the ground that property or civil rights were involved.’ This case began as one involving the finances, financial assets, and business of the Church, not any of its purely ecclesiastical or spiritual features, and those financial and business aspects of the Church have remained center stage throughout. ”

Yates, 847 So.2d at 336 (emphasis added). The Supreme Court further stated:

“[The parties] argue no issues of differences in religious faith or creed, and argue no spiritual conflicts, or ecclesiastical doctrine. Rather, the underlying dispute revolves around the property of the Church — control over its financial assets and affairs — and not God.”

847 So.2d at 346. The Supreme Court then proceeded to address whether the trial court properly considered the circumstances surrounding the contested church election, an issue that was an integral party of determining the rights of parties as to church property and other temporal matters (for example, who, among competing factions, has a right to possess and control church property and finances). See also Murphy v. Green, 794 So.2d 325 (Ala.2000) (underlying dispute as to ownership of church property); Shearry v. Sanders, 621 So.2d 1307 (Ala.1993) (underlying dispute as to whether the pastor could transact business for the church and as to control over church property); Bacher v. Metcalf, 611 So.2d 1030 (Ala.1992) (underlying dispute as to the wrongful retention of a church leadership position and misuse of church funds); McKinney v. Twenty-Fifth Avenue Baptist Church, Inc., 514 So.2d 837 (Ala.1987) (underlying dispute as to financial matters and wrongful disruption of religious services); Trinity Presbyterian Church of Montgomery v. Tankersley, 374 So.2d 861 (Ala.1979) (underlying dispute as to control of church property); and Abyssinia Missionary Baptist Church v. Nixon, 340 So.2d 746 (Ala.1976) (underlying dispute as to misappropriation of church funds). See also Lott v. Eastern Shore Christian Center, 908 So.2d 922 (Ala.2005) (underlying dispute as to access to the church financial records); and In re Galilee Baptist Church, 279 Ala. 393, 186 So.2d 102 (Ala.1966) (underlying dispute as to control over church facilities).

Unlike the above-cited cases, the underlying dispute in the present case is not related to the church’s financial assets or other property or some other temporal matter; the underlying dispute in the present case arises out of a minority of the church members’ interests in voicing their disapproval of the pastor to the majority of the church. Such a dispute is a spiritual or ecclesiastical matter that is beyond the jurisdiction of a civil court. Because the circuit court had no jurisdiction to consider the issue that has been certified for purposes of appeal, its judgment is void, and it will not support an appeal. See, e.g., Roux v. Hamby, 914 So.2d 879 (Ala.Civ.App. 2005). Therefore, I agree that the appeal is due to be dismissed.

      . The trial court apparently granted the motion at a hearing on November 22, 2004, by writing his order in the bottom margin of the motion. That order was never entered on the case-action-summary sheet by the clerk of the court. When the parties moved that the judgment be certified as final pursuant to Rule 54(b), Ala. R. Civ. P., the trial court entered an order by separate paper on December 1, 2004, in which it referred to a handwritten order of November 11, 2004; the December 1 order directed the church to hold a general conference by January 15, 2005. That order was also made final on December 1, 2004.

      . The Board has not appealed the trial court's order.

      . The appellate briefs of both parties contain discussion of the requirements imposed on nonprofit corporations incorporated under Ala.Code 1975, § 10-3A-1 et seq. The church in this case, however, was incorporated under Ala.Code 1975, § 10-4-20 et seq. The proper analysis does not depend upon under which of these statutes the church was organized, however, because the issue before us does not entail property or "civil” rights over which the circuit court has jurisdiction. Because no such rights are at issue, it is not necessary to examine the corporate statutes that might otherwise govern how the church in its corporate capacity would be required to address those rights.

      . Although not critical to my analysis, I note that the church at issue is a Missionary Baptist Church, a church whose form of government is
      "a pure democracy, and, apart from some general regulations which have been accepted as a sort of covenant by all the churches of that denomination, each church is a law unto itself in the management of its own affairs. Its organization is congregational, and each church must of necessity be governed by laws which inhere in that form of government.”

        Barton v. Fitzpatrick, 187 Ala. 273, 278, 65 So. 390, 392 (1914); see, e.g., Manning v. Yeager, 203 Ala. 185, 82 So. 435 (1919). Indeed the bylaws of the church corporation discuss and confirm the congregational nature of the church’s government by repeatedly emphasizing that authority within the church derives from "the majority consent of the official active membership of the church.” In particular, I note that section III of the bylaws confirms that the members of the Board of Deacons and the pastor serve subject to the authority of the majority of the official active membership of the church. Also, article IX of the bylaws confirms that the members can attend to "major voting matters such as those déaling with selection or changes in the leadership positions of the church, i.e., Pastor or others” at a “special call meeting or a matter that is attended to immediately after morning worship service.”
      In accord with the foregoing, Richardson takes the position that the majority of the members of the church, not the Board of Deacons or the pastor, constitute the ultimate authority as to the matters at issue. Yet, in a dispute between the parties that has been openly displayed before church members, including Richardson's attempts to call for meetings when the church met to worship, Richardson has not convinced the majority of the members to bypass the Board of Deacons and the pastor and to hold a general church conference. It certainly would not seem that Richardson could be heard to complain to a civil court under such circumstances.

      . I fail to see how principles of "due process” under the United States Constitution would be implicated in an alleged deprivation that involves no state action. Thus, I assume that the references to "due process” in our pertinent caselaw, see Abyssinia, supra, must mean the process that is due under a church’s governing documents or pertinent corporate law, where applicable.


source: Caselaw Access Project

author: CRAWLEY, Presiding Judge.

license: Public Domain

text:
    William HARRIS et al. v. Gary COOK and Linda Cook.
    2041079.
    Court of Civil Appeals of Alabama.
    June 9, 2006.

      Donald G. Madison, Montgomery, for appellants.
    James D. Hamlett, Montgomery, for ap-pellees.
   CRAWLEY, Presiding Judge.

William Harris, Kelly Harris, Faye Hall, and Earl Hall (“the landowners”) sued Gary Cook and Linda Cook, alleging that the Cooks had trespassed on their property, had cut down trees and a fence on their property, and had intentionally caused them emotional distress by those actions. The landowners also sought both an ex parte temporary restraining order and a permanent restraining order to prevent the Cooks from entering their property. The trial court held a hearing on May 7, 2002, at which all parties and their respective attorneys were present. Both sets of parties presented briefs to the court addressing the issues addressed at the May 7 hearing. The Cooks answered the complaint on May 21, 2002; they also asserted a counterclaim under the Alabama Litigation Accountability Act (“the ALAA”), Ala. Code 1975, § 12-19-270 et seq. On May 23, 2002, the trial court entered a judgment stating:

“This matter came before the Court on May 7, 2002, for a hearing on the Motion for Ex-Parte Restraining Order filed by the Plaintiffs, William B. Harris, Kelly Harris, Faye Hall, and Earl Hall. All parties had notice of said hearing and an opportunity to be present and to submit pleadings and legal briefs for this Court’s consideration and review. The Court, after considering the same, makes the following findings:
“1. That there is no evidence that any kind of easement existed in favor of the Defendants to warrant and justify entry onto the Plaintiffs’ properties by the Defendants.
“2. That no easement by implication or necessity existed in favor of the Defendants. Absent an express grant, reservation, deed or other written and/or documented conveyance of an easement interest in favor of the Defendants, there is no justification for entry onto the Plaintiffs’ properties by the Defendants.
“The Court, after considering the same, is of the opinion that the requested restraining order should be GRANTED. It is therefore ORDERED that the Defendants are hereby permanently restrained and enjoined from (a) entering on those portions of the Southern Cross Trail Road which traverse the Plaintiffs’ real property, as well as from entering onto the real property owned by the Plaintiffs and (b) touching, tearing down, interfering, damaging, meddling with or in any way removing or altering any fence located on the Plaintiffs’ properties. There being no further issues to resolve, it is further ORDERED that the above-styled case is hereby DISMISSED with prejudice.”

Both sets of parties filed postjudgment motions. The landowners’ June 6, 2002, motion requested that the trial court amend its judgment to award damages on the trespass claim and requested that the landowners be permitted to amend their complaint to add additional counts. The Cooks’ motion requested that the judgment be set aside and that the case be set for a jury trial; the only reason given in support of the Cooks’ motion was that the Cooks had not had time to prepare for a bench trial. The trial court denied the Cooks’ motion; it set the landowners’ motion for a hearing on July 2, 2002. The transcript of the July 2 hearing indicates that the landowners argued briefly to the trial court that they wished to “reopen” the case to prove trespass damages and that they wished, if the case were “reopened,” to amend their complaint to add a malicious-prosecution claim. The trial court never ruled on the landowners’ motion, and it was denied by operation of law on September 4, 2002. Rule 59.1, Ala. R. Civ. P.

The parties in this case had previously been involved in another action regarding the Cooks’ attempt to erect a fence along an easement that formed a private road (“the Southern Cross Trail Road”) for several adjoining landowners, including the landowners in the present action, in the Southern Cross Trail Subdivision. The Cooks had voluntarily stopped erecting the fence after the first action was filed; however, the Cooks later began placing rocks along the easement for, they said, erosion control. The landowners had filed a petition for a rule nisi in the first action; that petition had been set for a hearing on July 22, 2002. Interestingly, the bulk of the arguments presented in the July 2, 2002, hearing in this action involved issues arising from the Cooks’ placement of the rocks along Southern Cross Trail Road. After the July 22 hearing on the rule nisi petition in the first action, the parties submitted briefs, and the trial court in that action, on October 10, 2002, entered a judgment finding that the Cooks’ placement of the rocks along the easement did not “technically” violate the prior orders of the court issued in both actions. The Cooks then filed a motion in both actions requesting permission to finish work on the ditches along the easement; the trial court granted that motion on December 10, 2002.

On August 6, 2003, the Cooks filed in the present action a motion for relief from judgment pursuant to Rule 60(b), Ala. R. Civ. P. In their motion, the Cooks explained that their deed contained an easement across the property owned by the landowners and that the deed, “for reasons unknown to the [Cooks] ... was never presented to, or considered by the court.” The landowners filed a motion to strike the Cooks’ Rule 60(b) motion. The trial court held a hearing on September 2, 2004, after which the parties submitted memorandums of law. The record reflects that three other hearings were set for November 29, 2004, March 15, 2005, and March 29, 2005. The trial court entered an order on June 2, 2005, granting the Cooks’ Rule 60(b) motion. The text of the June 2, 2005, order states that the May 23, 2002, judgment was in fact intended to preserve the status quo until the Cooks were able to present evidence regarding the easement. The landowners, after receiving an extension of time within which to file their appeal pursuant to Rule 77(d), Ala. R. Civ. P., appealed the trial court’s order granting the Cooks’ Rule 60(b) motion to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

The landowners argue that the trial court had no jurisdiction to entertain the Cooks’ Rule 60(b) motion, which was filed over one year after the May 23, 2002, judgment determining that the Cooks did not have an easement across the landowners’ property. The Cooks argue that the May 23, 2002, order was not a final judgment and that, thus, the trial court was finally adjudicating the matter when it entered its order in June 2005.

We must first consider whether the May 23, 2002, order was in fact a final judgment. Although it appears that the parties originally treated the order as a final judgment, that fact is not determinative. Moreover, although the trial court indicated in its June 2005 order that the May 23, 2002, judgment was not final, that determination is not conclusive. American Auto. Acceptance Co. v. New S. Fed. Sav. Bank, 867 So.2d 1061, 1063 (Ala.2003) (quoting Smith v. Fruehauf Corp., 580 So.2d 570, 572 (Ala.1991))(stating that a final judgment “ ‘will not be made nonflnal by the trial court’s calling it nonfinal’ ” (emphasis omitted)). Instead, we look to see whether the judgment conclusively decided all claims or all of the rights and liabilities of all of the parties. Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App.1987).

The May 2002 order began by specifically referencing only the “ex parte” injunction sought by the landowners; however, in substance, the order awarded a permanent injunction to the landowners based on findings that the Cooks did not have an easement over the landowners’ property. The order continued by stating that no other issues remained to be addressed and then dismissed the action with prejudice. Thus, the May 2002 judgment dismissed the landowners’ trespass and intentional-infliction-of-emotional-distress claims, making the judgment final. See Dolgen-corp, Inc. v. Pounders, 912 So.2d 523, 525 (Ala.Civ.App.2005) (indicating that a dismissal of a plaintiffs remaining claims rendered a judgment final). The Cooks’ ALAA counterclaim is not a bar to the finality of the May 2002 judgment; because that judgment, which was otherwise final, did not address the outstanding ALAA claim, the claim was implicitly denied. Gonzalez, LLC v. DiVencenti, 844 So.2d 1196, 1202 (Ala.2002) (stating that a trial court must either rule on a pending ALAA motion or reserve jurisdiction in its judgment on the merits or the judgment on the merits is a final disposition of the case and jurisdiction over the ALAA claim is lost). Accordingly, we conclude that the May 28, 2002, judgment was a final judgment that left no issues pending in the trial court at the time of its entry.

We must determine, therefore, whether the Cooks’ Rule 60(b) motion was properly granted. Although the Cooks do not state in their motion upon which subsection of Rule 60(b) they rely, the landowners posit that the only subsection possibly applicable to the Cooks’ motion is subsection (b)(2), which permits a court to relieve a party from a judgment based upon “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Ala. R. Civ. P. 59(b).” The Cooks’ motion alleges that the evidence upon which they rely, i.e., the deed to their property, was not presented to the court. We agree, therefore, that the Cooks’ motion was based on Rule 60(b)(2).

A Rule 60(b)(2) motion must be brought within four months of the judgment that it seeks to have set aside. Rule 60(b). The Cooks’ Rule 60(b)(2) motion was brought 15 months after the May 2002 judgment. Thus, the motion was untimely and the trial court lacked jurisdiction to entertain the motion. McDonald v. Cannon, 594 So.2d 128, 129 (Ala.Civ.App.1991). A judgment entered without jurisdiction is void and will not support an appeal. Jones v. Sears Roebuck & Co., 342 So.2d 16, 17 (Ala.1977). Accordingly, we dismiss the appeal and order that the trial court vacate its June 2005 order granting the Cooks’ Rule 60(b) motion.

APPEAL DISMISSED.

THOMPSON, PITTMAN, MURDOCK, and BRYAN, JJ., concur.

      . Typically, an order granting a Rule 60(b) motion is considered interlocutory and therefore not appealable. Ex parte Short, 434 So.2d 728, 730 (Ala.1983); and Johnson v. Johnson, 703 So.2d 1001, 1002 (Ala.Civ.App.1997). However, the trial court's order granting the Cooks’ Rule 60(b) motion and determining that they were entitled to an easement across the landowners' property left no other proceedings to be had in the trial court and is therefore a final judgment as opposed to an interlocutory order. Reaves v. Reaves, 883 So.2d 693, 697 n. 3 (Ala.Civ.App.2003). Thus, an appeal is the proper vehicle by which to seek review in the present case. Id.


author: COBB, Judge.

text:
    R.E.N. v. STATE of Alabama.
    CR-04-1846.
    Court of Criminal Appeals of Alabama.
    May 26, 2006.

      Dan Blalock, Jr., Abbeville, for appellant.
    Troy King, atty. gen., and Kristi L. Dea-son Hagood, asst. atty. gen., for appellee.
   COBB, Judge.

R.E.N. appeals his May 10, 2005, conviction by the Henry Circuit Court of one count of first-degree rape in violation of § 13A-6-61, Ala.Code 1975, and one count of first-degree sodomy in violation of § 13A-6-63, Ala.Code 1975. On June 10, 2005, the trial court sentenced R.E.N. to concurrent terms of imprisonment of 40 years and imposed a fine of $3,500 as to each count. He was also ordered to pay $1,000 to the victims’ compensation fund in accordance with § 15-23-17(b), AIa.Code 1975, as to each count. We affirm.

The evidence tended to show the following: T.N. attended a church-affiliated camp for youth where the topic of rape was discussed, and T.N. decided she had to tell what had happened to her “... to save other people’s lives — to save other girls from getting hurt.” (R. 84.) T.N. told her stepfather that her biological father, R.E.N., had molested her while she lived with him in Henry County. T.N.’s mother then told her other daughter, N.N., that T.N. had been molested, and N.N. told her mother that R.E.N. had also molested her.

N.N. testified that R.E.N. made her perform fellatio on him and that R.E.N. would perform cunnilingus on her and insert his fingers into her vagina. She could not recall how old she was when R.E.N. began performing these acts on her. According to N.N., R.E.N. had had sexual intercourse with her in a camping trailer next to R.E.N.’s manufactured home before her fifteenth birthday. N.N. did not recall anything R.E.N. said to her before or while they were having sexual intercourse. In total, N.N. recalled having sexual intercourse with R.E.N. approximately 10 times. N.N. also stated that she and her father had oral sex every time she was at her father’s residence.

N.N. testified that her father did not have any particular rules for her to follow; however, she obeyed her father because he was her parent. She also stated that he did not threaten her to force her into a sexual relationship. Instead, he told her that he could go to jail if she told anyone about their relationship and that she would not have a father anymore. This made her feel sad “because everybody’s supposed to have a dad.” (R. 47). She also stated she was afraid of R.E.N. “[bjecause you see things on T.V., and I didn’t want it to happen to me. I didn’t want to end up getting killed or anything.” (R. 47.) N.N. testified that when she and R.E.N. had sexual intercourse she “just laid there. I was too scared to [fight him off.]” (R. 48.)

N.N. never told her stepmother about the sexual abuse “[bjecause she probably wouldn’t believe me, and she doesn’t really like me anyways.” (R. 49.)

N.N.’s sexual abuse occurred from the age of 13 until the age of 16. N.N. and T.N. would visit R.E.N. every other weekend. At the time, N.N. and T.N. lived with their mother in Birmingham, and their mother and R.E.N. would meet in Montgomery (halfway between Birmingham and her father’s residence) to facilitate visitation. N.N. voluntarily went to her father’s residence “so then nobody would know, and so [she] could see the two babies.” (R. 56.)

R.E.N. was indicted for rape and sodomy as to both N.N. and T.N. The jury acquitted R.E.N. of all charges related to T.N.

On appeal, R.E.N. argues that the trial court erred in denying his motion for a judgment of acquittal at trial because there was insufficient evidence to support a conviction for either first-degree rape or first-degree sodomy; he argues that the State offered no evidence of forcible compulsion as required by §§ 13A-6-61 and -63, Ala.Code 1975.

“ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.’ ” Ballenger v. State, 720 So.2d 1033, 1034 (Ala. Crim.App.1998) (quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985)). “ ‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997) (quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992)). “ When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.’ ” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim. App.1998) (quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990)). “The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).

R.E.N. correctly asserts that factually his case is almost identical to Rider v. State, 544 So.2d 994 (Ala.Crim.App.1989). In Rider, a stepfather was accused of molesting his stepdaughter. The stepdaughter refused to answer the prosecutor’s question as to whether she “voluntarily” performed oral sexual acts on her stepfather. She testified she tried to “mind” her stepfather because she “liked the way he treated her, like she was his only child.” 544 So.2d at 995. The victim in Rider also stated she did not resist because she believed if she stopped her stepfather would not treat her the way he did. The victim also stated that she did not tell anyone about the abuse because she did not want her stepfather to go to jail. 544 So.2d at 995.

Noting the existence of two types of forcible compulsion, physical force which overcomes earnest resistance and an implied or express threat that places a person in fear of immediate death or serious physical injury to himself or another person, this Court held that no forcible compulsion existed in that case. Although the evidence indicated there was some physical force involved, this Court held there was no evidence of any earnest resistance by the victim and, thus reversed the conviction. 544 So.2d at 996. Similarly in the matter currently before this Court, there is no evidence of “earnest resistance” on the part of N.N.

In Powe v. State, 597 So.2d 721 (Ala.1991), the Alabama Supreme Court held that a jury could reasonably infer that the defendant, the father of the 11-year-old victim, held a position of authority and domination over the victim sufficient to allow the inference of a threat to the daughter if she did not comply with his wishes and demands. In explaining its rationale in Powe v. State, supra, the Alabama Supreme Court quoted the following from the Pennsylvania Supreme Court:

“There is an element of forcible compulsion, or the threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, inherent in the situation in which an adult who is with a child who is younger, smaller, less psychologically and emotionally mature, and less sophisticated than the adult, instructs the child to submit to the performance of sexual acts. This is especially so where the child knows and trusts the adult. In such cases, forcible compulsion... derives from the respective capacities of the child and the adult sufficient to induce the child to submit to the wishes of the adult.. .without the use of physical force or violence or the explicit threat of physical force or violence.”

597 So.2d at 728, quoting Commonwealth v. Rhodes, 510 Pa. 537, 557, 510 A.2d 1217, 1227 (1986).

In Ex parte J.A.P., 853 So.2d 280 (Ala.2002), the Alabama Supreme Court limited Powe’s forcible-compulsion analysis to cases involving the sexual assault of children by adults who exercise positions of domination and control over the children.

The evidence showed that R.E.N. was N.N.’s father. R.E.N. and N.N.’s mother had joint custody of N.N., and N.N. would visit her father every other weekend. N.N. testified she was afraid of the consequences of telling of the sexual abuse at the hands of her father. Specifically, she testified that she was scared because “.. .your father’s not supposed to do that to you. And I was hoping it wasn’t true.” (R. 54.) Considering these facts and the forcible compulsion analysis set forth in Powe, we conclude that the evidence in the present case is sufficient to support the trial court’s denial of R.E.N.’s motion for a judgment of acquittal. We further hold that Powe v. State, 597 So.2d 721 (Ala.1991), Ex parte J.A.P., 853 So.2d 280 (Ala. 2002), and their progeny have implicitly overruled this Court’s holding in Rider v. State, 544 So.2d 994 (Ala.Crim.App.1989), inasmuch as Rider did not recognize the forcible-compulsion analysis found in Powe v. State as limited by Ex parte J.A.P. to adults who exercise positions of domination and control over a child.

For the foregoing reasons, we affirm the judgment of the Henry Circuit Court.

AFFIRMED.

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

      . N.N. had two half siblings who were the children of R.E.N. and who resided with R.E.N. and his wife.


author: BERGER, WILLIAM J., Associate Judge. FARMER, C.J.,

text:
    BNP PARIBAS, a foreign corporation, and Paribas Principal, Inc., a foreign corporation, Appellants, v. James A. WYNNE, III, individually and as Trustee of the James A. Wynne, III Revocable Trust No. 2 dated March 19, 1998, Appellees.
    No. 4D03-4972.
    District Court of Appeal of Florida, Fourth District.
    Jan. 12, 2005.
    Keith T. Grumer and Maidenly Sotuyo-Macaluso of Grumer & Levin, P.A., Fort Lauderdale, for appellants.
    Carlos A. Rodriguez, William R. Leonard, and David B. Pakula, Fort Lauder-dale, for appellees.
   BERGER, WILLIAM J., Associate Judge.

This is an appeal from a non-final order dissolving a pre-judgment writ of garnishment. We affirm because the complaint and the proof at the evidentiary hearing below demonstrate the plaintiffs/appellants (“Paribas”) are seeking recovery for unliquidated damages. As such, their claims cannot support a prejudgment garnishment. Papadakos v. Spooner, 186 So.2d 786 (Fla. 3d DCA 1966); Marshall-Shaw v. Ford, 755 So.2d 162, 165 (Fla. 4th DCA 2000). Garnishment is limited to recovery of a “debt” or on a judgment. Sec. 77.01, Fla. Stat.

We write to discuss Paribas’ contention the trial court did not have authority to extend the statutory deadline for the defendants/appellees (“Wynne”) to move to dissolve the writ, and since Wynne’s motion to dissolve was filed after the deadline, it should have been denied and a default entered against Paribas as to the writ.

Garnishment is a special statutory proceeding. Garel and Jacobs, P.A. v. Wick, 683 So.2d 184, 186 (Fla. 3d DCA 1996). Under rule 1.010 of the rules of civil procedure, “the form, content, procedure, and time for pleadings in all special statutory proceedings shall be as prescribed by the statutes governing the proceedings unless these rules specifically provide to the contrary.” (emphasis added) A special statutory proceeding “shall be controlled by the statute itself unless the rules [of civil procedure] provide otherwise.” Federated Stores Realty, Inc. v. Burnstein, 392 So.2d 573, 574 (Fla. 4th DCA 1980). This is a limitation imposed on the judiciary by the Florida Supreme Court in promulgating rule 1.010.

As this court has stated, “[i]n a special statutory proceeding ... the trial court does not have the same discretion to bend time requirements that might be allowed under the rules of civil procedure.” Dracon Constr., Inc. v. Facility Constr. Mgmt., 828 So.2d 1069, 1071 (Fla. 4th DCA 2002) (followed in City of Coconut Creek v. City of Deerfield Beach, 840 So.2d 389, 392 (Fla. 4th DCA 2003)). In Sturge v. LCS Development Corporation, 643 So.2d 53 (Fla. 3d DCA 1994), the trial court properly denied a motion for enlargement of time to respond to a complaint to discharge a construction lien where the motion was filed on the statutory deadline. “The statute does not contain a provision authorizing extensions of time which would serve to toll the statutory twenty-day period.” Id. at 55.

As an example of a rule which “provides otherwise,” rule 1.090(a) governs computation of time “prescribed or allowed by these rules, by order of court, or by any applicable statute” [emphasis added] and the rule applies to a special statutory proceeding. Berry v. Clement, 346 So.2d 105, 106 (Fla. 2d DCA 1977) (summary eviction proceeding under chapter 51). Likewise, rule 1.090(e), which allows five days for mailing to be added to a deadline, applies to a special statutory proceeding because the express language in the rule does not limit its scope; it applies to all circumstances “[w]hen a party has a right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon that party.” Volksbank Regensburg v. Burger, 703 So.2d 538 (Fla. 4th DCA 1997), en banc.

In contrast, rule 1.090(b), which allows a court in its discretion to enlarge the time to perform an act, is expressly limited to periods “required or allowed to be done at or within a specified time by order of court, by these rules, or by notice given thereunder.'” (emphasis added) This rule, by not expressly mentioning statutes, is inapplicable to procedural deadlines under a special statutory proceeding.

Turning to the garnishment statute, a defendant seeking to dissolve a pre-judgment writ may do so by motion. § 77.07(1), Fla. Stat. Under section 77.07(2), Florida Statutes, the deadline to move to dissolve the writ is twenty days from service on the defendant of the garnishee’s answer. The statute also expressly establishes the consequences for an untimely motion, namely, the striking of the motion “as an unauthorized nullity, and the proceedings shall be in a default posture as to the party involved.” The rules of civil procedure do not specifically provide for extension of the twenty day deadline.

In the instant case, the proper course would have been for the trial court to have denied Wynne’s motion to extend the time for filing its motion to dissolve, based on rule 1.010. We affirm the result below, however, because, as previously noted, by alleging unliquidated damages, Paribas was not entitled to a pre-judgment writ in the first instance and a default against Wynne as to the pre-judgment writ would unquestionably have to be set aside. Williamson v. Bertino, 685 So.2d 93, 95 (Fla. 4th DCA 1997)(a default should be set aside if the complaint fails to state a cause of action).

AFFIRMED.

KLEIN, J., concurs.

FARMER, C.J., concurs specially with opinion.

FARMER, C.J.,

concurring specially.

I join in affirming the dissolution of the writ because I agree that plaintiffs’ cause of action involves unliquidated damages and does not support a prejudgment writ of garnishment. I would stop there, however, and not address the enlargement of time the trial court gave the defendants to file a motion to dissolve the writ. Everything the majority says about the authority of the court to extend the time is unnecessary to the decision and is therefore not binding in future cases.

I think it is also in error. When the legislature prescribes the procedure and time to commence a statutory proceeding affecting mechanics liens or development orders, as in Dracon Constr. Inc. v. Facility Constr. Mgt. Inc., 828 So.2d 1069 (Fla. 4th DCA 2002), and City of Coconut Creek v. City of Deerfield Beach, 840 So.2d 389 (Fla. 4th DCA 2003), there is every reason to enforce the limitations period. After all, the legislature has created mechanics lien laws and has assumed control over land development. If the legislators think a proceeding to cancel a subcontractor’s lien or to challenge a development order must be filed within 30 days, who are judges to say otherwise?

But that is a far cry from regulating the procedure and timing of motions to dismiss a garnishment proceeding. Garnishment existed at common law. Regulating procedure for ancient writs is traditional work for courts. With the comparable procedural provisions in statutes creating a right to attorneys fees, the supreme court has held that judges are free to grant enlargements of the time periods stated in the statute. See Gulliver Academy, Inc. v. Bodek, 694 So.2d 675 (Fla.1997) (time periods in statutes are procedural and are governed by Florida Rules of Civil Procedure); Knealing v. Puleo, 675 So.2d 593 (Fla.1996) (same); TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606 (Fla.1995) (same); Timmons v. Combs, 608 So.2d 1 (Fla.1992) (same); Leapai v. Milton, 595 So.2d 12 (Fla.1992) (same). Creating procedures for courts is, under the Florida Constitution, given exclusively to the supreme court and not to the legislature. Art. V, § 2, Fla. Const. While judges might, as a matter of grace, initially apply a time limit suggested by the legislature, that should not bar them from granting additional time when justice suggests.

Rule 1.090(b) does not provide otherwise. The first clause in subdivision (b)(1) allows an extension without any showing of excusable neglect and even without notice when an application is made, as here, before the original time has expired. Fla. R. Civ. P. 1.090(b)(1) (“court at any time in its discretion ... with or without notice, may order the period enlarged if request therefor is made before the expiration of the period originally prescribed”). But one should carefully observe that the provision following clause (b)(2) expressly prohibits the enlargement of certain specified time periods under any circumstances. Fla. R. Civ. P. 1.090(b) (“but [the court] may not extend the time for making a motion for new trial, for rehearing, or to alter or amend a judgment; making a motion for relief from a judgment under rule 1.540(b); taking an appeal or filing a petition for certiorari; or making a motion for a directed verdict.”). Conspicuously absent from this list at the end of subdivision (b) is any mention of a time set by statute. Obviously the garnishment statute is within the class omitted. As the canon says, expressio unius est exclusio alterius. See Gay v. Singletary, 700 So.2d 1220, 1221 (Fla.1997) (“when a law expressly describes the particular situation in which something should apply, an inference must be drawn that what is not included by specific reference was intended to be omitted or excluded”). I take this omission in rule 1.090(b)(2) as tacit rule authority for a trial judge to enlarge even a statutory period of time when the application is made before the expiration of the original time.

For that matter, I doubt that the legislature had any purpose to prohibit judges from enlarging time to file motions in garnishment cases. Just as the garnishment statutes do not explicitly bar the judiciary from vacating defaults, I do not think they prevent judges from giving more time to file a motion to dissolve a legally improper writ.

As I said at the beginning, however, all this is unnecessary to today’s decision— that no prejudgment writ of garnishment should have been issued to which a response was due because the writ was being used to enforce a claim for unliquidated damages. That is our only holding in this case; the rest is all obiter dicta.

      . Paribas alleged claims against Wynne for fraudulent inducement and breach of contract by competing with his new employer, soliciting customers, divulging trade secrets, interfering with third party contracts, diminishing goodwill, enticing away employees, not devoting his best efforts to the new employer, breaching his fiduciary duties of loyalty and care, failing to report illegal conduct to the board of directors, and for other conflicts of interest and misdeeds. Paribas sought unspecified general damages in excess of $15,000.

      . In Scott v. Premium Development, Inc., 328 So.2d 557 (Fla. 1st DCA 1976), the court refused to set aside a default judgment canceling a lienor’s recorded lien. The default had been entered after the lienor had failed to respond by the statutory deadline to an order to show cause why his lien should not be canceled. The court stated, "On Scott's failure to respond to the rule by the return date and his failure to obtain an order extending the time for his response, the court was entirely correct in following the mandate of the statute by forthwith ordering the cancellation of Scott's lien against Premium’s property.” Id. at 559 (emphasis added). As this court has noted, the italicized language is dicta. Federated Stores Realty, supra at 574.

      . "The defendant, by motion, may obtain the dissolution of a writ of garnishment.... The court shall set down such motion for an immediate hearing.”

      . "[The defendant] shall file and serve a motion to dissolve the garnishment within 20 days after the date indicated in the certificate of service on the defendant and any other such person of the plaintiff’s notice required by s. 77.055, stating that any allegation in plaintiff’s motion for writ is untrue. On such motion this issue shall be tried, and if the allegation in plaintiff's motion which is denied is not proved to be true, the garnishment shall be dissolved. Failure of the defendant or other interested person to timely file and serve the motion to dissolve within such time limitation shall result in the striking of the motion as an unauthorized nullity by the court, and the proceedings shall be in a default posture as to the party involved.” § 77.07(2), Fla. Stat.

      .The twenty day requirement is referred to in section 77.055, which states the plaintiff must serve a notice on the defendant "advising that he or she must move to dissolve the writ of garnishment within twenty days after the date indicated on the certificate of service in the notice if any allegation in the plaintiff's motion for writ of garnishment is untrue."


author: THE COURT:

text:
    Richard JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2775.
    District Court of Appeal of Florida, Fifth District.
    June 16, 2005.
   BY ORDER OF

THE COURT:

In accordance with the May 18, 2005, Mandate and instructions of the Florida Supreme Court by Opinion filed April 21, 2005, it is

ORDERED that the previous mandate and opinion of this Court rendered in this cause are withdrawn. Moreover, the July 10, 2001, judgment(s), and sentence(s) rendered by the Circuit Court for Orange County, Florida, are Affirmed.


author: POLEN, J.

text:
    Edmund ACCARDI, Appellant, v. HILLSBORO SHORES IMPROVEMENT ASSOCIATION, INC., Mary Clince, Mary Clince Saavedra, Rick McKenna, Stephen Schorr, Linda Hammett, Helene Passin, Jacqueline Glaff, Paul Fecteau, Paul Schlegel, Cheryl Prachal, Unknown Directors of Hillsboro Shores Improvement Association, Inc., Brian Mead, Shawn Titcombe, Daniella Howard, Hugh Rappa, Lyn Simross, and Susanna Wilken, Appellees.
    No. 4D04-2333.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2005.

      Romney C. Rogers of Rogers, Morris & Ziegler, Fort Lauderdale, for appellant.
    Alan S. Rosenberg of Koleos, Rosenberg, Metzger & Doyle, P.A., Fort Lauder-dale, for appellees.
   POLEN, J.

This appeal arises from a final judgment dismissing with prejudice Edmund Accar-di’s third amended complaint for nuisance and trespass against Hillsboro Shores Improvement Association (“the Association” or “HSIA”) and its individual directors. We affirm in part and reverse in part.

Aceardi has been a homeowner in the Hillsboro Shores subdivision of Pompano Beach since 1998. The Association is a Florida not-for-profit corporation owning a lot adjacent to Accardi’s lot. The Association’s lot connects Bay Drive to a wooden footbridge leading to the public beach. The deed contains the following restrictive covenant:

The above described lands are conveyed subject to the following restrictions: (1) said lands shall be used only for access to and from the beach, and in no event for any commercial or monetary profit purpose. No building or buildings shall be erected on said lands; (2) all the property owners of lots in Hillsboro Shores Section A, B & C and those that may own the same in the future, shall have the use of the above described premises.

Prior to the present lawsuit, Accardi filed three prior cases against the Association. The first case, filed in 1999, resulted in a March 31, 2002, Final Declaratory Judgment, granting him both declaratory and injunctive relief, holding that the Association’s lot and wooden footbridge shall be used only for access to and from the beach and reasonably related purposes. Additionally, the Association was ordered not to use or permit the property to be used for parties, meetings, or social gatherings of any kind, nor for commercial or monetary profit purposes. The Association was ordered not to construct or maintain any improvement which would facilitate or encourage any use other than beach access and was ordered to remove the barbeque pit, tables, and table seating. The trial court retained jurisdiction to enforce the order and to enter any additional, coercive, supplemental, or subsequent orders under section 86.011, Florida Statutes (2001). Subsequently, Accardi filed an administrative action against Hillsboro to remove a wooden walkway allegedly encroaching his property. Accardi prevailed and on April 14, 2003, Hillsboro stipulated to the removal of the walkway. Finally, Accardi filed an action against the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida for formal legal title to the beachfront property.

On April 28, 2004, Accardi filed the Third Amended Complaint in the current action, alleging causes of action for nuisance and trespass against both the Association and the individual directors. The complaint provides a detailed history of the aforementioned lawsuits. In the present action, Accardi seeks monetary damages for the nuisance and trespass alleged to have been brought upon him, including costs and attorney’s fees he incurred from the previous equitable actions.

After a hearing, the lower court granted the motion to dismiss the Third Amended Complaint with prejudice, finding that the same parties or their privies to this action had previously litigated the action, that the same issues were previously fully litigated, and that the same issues were determined by the court previously in the March 31, 2002 Final Declaratory Judgment. The trial court also determined that the complaint does not allege any new issues necessary to establish a claim or defense for trespass or nuisance, thus barring Accar-di’s new suit by collateral estoppel.

Accardi argues that the trial court erred by dismissing the complaint with prejudice based on collateral estoppel and/or res judicata. The standard of review of a motion to dismiss is de novo. Royal & Sunalliance v. Lauderdale Marine Center, 877 So.2d 843, 845 (Fla. 4th DCA 2004).

First, we reject Accardi’s contention that the trial court improperly dismissed the complaint with prejudice because the court was forced to venture outside of the four corners of the complaint. “In reviewing a motion to dismiss, a trial court is limited to the four corners of the complaint, and it must accept all the allegations in the complaint as true.” Royal & Sunalliance, 877 So.2d at 845 (citations omitted). According to Accardi, the trial court went outside of the four corners of the complaint by stating at the hearing that Accardi did not ask for damages for nuisance and trespass in prior cases, but only sought and was granted an abatement, injunetion, and declaratory judgment, for the same nuisance and trespass. We disagree, finding that Accardi pled and discussed the previous proceedings in the complaint in specific detail, providing the trial court with sufficient history of the litigation to analyze the issues of collateral estoppel and res judicata.

Second, we conclude that res ju-dicata and collateral estoppel do not bar Accardi’s present suit for damages. In order for res judicata to bar subsequent claims, four identities must be established: ‘“(1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the actions; and (4) identity of the quality or capacity of the persons for or against whom the claim is made.’ ” Freehling v. MGIC Fin. Corp., 437 So.2d 191, 193 (Fla. 4th DCA 1983) (citation omitted). The suit is not barred by res judicata because the nuisance and trespass claims do not share identity of cause of action or identity in the thing sued for with the prior equitable claims. “The presence of [identity of cause of action] is a question of ‘whether the facts or evidence necessary to maintain the suit are the same in both actions.’ ” Tyson v. Viacom, Inc., 890 So.2d 1205, 1209 (Fla. 4th DCA 2005)(en banc) (citations omitted). In this case, the facts and evidence necessary to prove Accardi’s present claims for nuisance and trespass are not identical to those necessary to prove his prior equitable claims. Furthermore, identity in the thing sued for is lacking in this case based on the following rationale from Inter-Active Services, Inc. v. Heathrow Master Ass’n, 809 So.2d 900 (Fla. 5th DCA 2002):

In Inter-Active I, “the thing sued” for was an injunction against Heathrow’s threatened breach of the parties’ contract, whereas “the thing sued” for here was money damages sustained by InterActive as a result of Heathrow’s actual breach of contract. The instant damages arose after trial in Inter-Active I. The facts and evidence necessary to prove Inter-Active’s breach of contract claims are different from the facts and evidence which were necessary to prove Inter-Active’s claim for injunctive relief and thus, an identity of the “thing sued for” does not exist in this case.

Id. at 902-03. Likewise, in the present case, the thing sued for in the past was equitable relief to prevent the continued violation of the restrictive covenant by HSIA, while the thing sued for now is monetary damages based on nuisance and trespass stemming from the impact of HSIA’s violation of the restrictive covenant on Accardi’s property rights.

Additionally, Accardi’s claims for nuisance and trespass are not barred by collateral estoppel. “Collateral estoppel may be employed where two causes of action fail to meet the identity test [of res judicata], but the other identities are present, i.e., identity of parties and issues.” Palm AFC Holdings, Inc. v. Palm Beach County, 807 So.2d 703, 704 (Fla. 4th DCA 2002). Determining identity of issues requires a similar analysis to determining identity of causes of action under res judicata. See Real Estate Corp. of Fla., N.V. v. Dawn Developers, Inc., 677 So.2d 366, 368 (Fla. 5th DCA 1996). In this case, identity of issues is lacking between the present claims for nuisance and trespass and the past claims for equitable relief. The equitable claims addressed the issues of what HSIA was permitted to do with the community lot adjacent to Accardi’s under a restrictive covenant contained in the subdivision’s deed restrictions and curtailing actions by HSIA deemed to be in conflict with that covenant. The nuisance and trespass claims raise the issue of whether HSIA’s actions interfered with Accardi’s property rights so as to entitle him to monetary damages.

These conclusions regarding res judicata and collateral estoppel are supported by Fell v. Jonas, 183 So.2d 735 (Fla. 3d DCA 1966), in which lessors filed a suit in equity for cancellation of a lease, did not seek monetary damages in the suit, and obtained a decree canceling the lease. Id. at 735. The lessors subsequently filed a suit for breach of lease, seeking monetary damages. Id. The trial court concluded that the lessors were precluded from bringing the subsequent action by failing to seek damages in the equity proceeding. Id. The Third District reversed, relying on Wise v. Quina, 174 So.2d 590 (Fla. 1st DCA 1965). Fell, 183 So.2d at 735. The court wrote the following about Quina:

In the cited case certain parties sued for and obtained injunctive relief in equity upon establishing unlawful invasion of their property. Damages were not sought in the equity suit, nor did the decree deal with the subject of damages. An action at law for damages was dismissed on summary judgment on the grounds that the equity suit operated to bar the law action by estoppel by judgment; that the filing of an action for damages amounted to splitting a single cause of action; and because full relief, including damages, could have been sought in the equity court, which had jurisdiction to render complete relief. On appeal therefrom to the district court of appeal in the first district, the dismissal of the action for damages was reversed. In doing so the court of appeal was pointed to the fact that damages were not sought in the equity suit or dealt with in the decree, and stated: ‘The nature of the relief prayed for in the equity suit is, of course, an important consideration in determining whether the final decree is res adjudicata as to the action at law.’

Fell, 183 So.2d at 735.

Third, we hold that Accardi is precluded from seeking, as part of his damages in the present litigation, his attorney’s fees from the prior declaratory and injunctive action. Accardi could have and should have sought fees as part of the previous actions as the prevailing party pursuant to the declaratory judgment statute, section 86.011, Florida Statutes (2001).

Fourth, we hold that the causes of action against the directors are not barred by the statutes providing for immunity from civil liability for officers and directors of not-for-profit corporations and associations absent criminal activity, fraud, self-dealing, or unjust enrichment. See §§ 617.0831, 617.0834(1), Fla. Stat.; see also Munder v. Circle One Condo., Inc., 596 So.2d 144 (Fla. 4th DCA 1992) (holding that an alleged obvious wrong did not pierce the officer’s insulation from liability, although “[f]raud, self-dealing, unjust enrichment and betrayal of trust, may well result in individual liability.”)

In the present case, Aceardi’s claims against the directors for nuisance and trespass include allegations which are sufficient to pierce the directors’ insulation from civil liability. Those allegations are as follows:

32.C.1. By knowingly and in bad faith using the beach access personally or for friends or family for a party venue as described in paragraph 19 in violation of Deed restrictions.
32.d. By misinforming and committing fraud on the members of HSIA in order to collect funds to retaliate against your Plaintiff and by falsely stating to those members that your Plaintiff was attempting to close the beach access.
54.c. By knowingly and in bad faith using the Plaintiffs property personally or for friends or family and without Plaintiffs consent for unreasonably loud with vulgar language parties.
54.d. By misinforming and committing fraud on the members of HSIA in order to collect funds to retaliate against your Plaintiff and by falsely stating to those members that your Plaintiff was attempting to close the beach access.

The allegations in paragraph 32.C.1 and paragraph 54.c. may be interpreted as claims of unjust enrichment and the allegations in paragraph 32.d. and 54.d. may be interpreted as claims of fraud and/or betrayal of trust. Either of these claims would produce the directors from behind the immunity shield, despite the protections afforded by sections 617.0831 and 617.0834(1). Therefore, we hold that the causes of action against the individual directors are not barred by the statutes providing for immunity from civil liability for officers and directors of not-for-profit associations.

Based on the foregoing, we reverse in part the final judgment dismissing Accar-di’s third amended complaint with prejudice. However, we affirm the dismissal with prejudice with regard to Accardi’s request for attorney’s fees from the prior actions. Lastly, we hold that Accardi’s claims against the directors include allegations which are sufficient to pierce the directors’ insulation from civil liability.

Affirmed in Part; Reversed in Part.

GUNTHER and WARNER, JJ., concur.

      . As this court recently held:
      [G]enerally, collateral estoppel is an affirmative defense which must be raised in an answer. See Palmer v. McCallion, 645 So.2d 131, 133 (Fla. 4th DCA 1994)(“Res judicata and collateral estoppel are affirmative defenses that ordinarily must be pled in an answer or similar pleading.”). An exception is made, however, where the face of the complaint is sufficient to demonstrate the existence of the defense. See Duncan v. Prudential Ins. Co., 690 So.2d 687, 688 (Fla. 1st DCA 1997) (affirming dismissal on grounds of res judicata and estoppel by judgment where appellant had specifically incorporated into her complaint the previous proceedings).

        Norwich v. Global Fin. Assocs., LLC, 882 So.2d 535, 536-37 (Fla. 4th DCA 2004) (quoting Bess v. Eagle Capital, Inc., 704 So.2d 621, 622 (Fla. 4th DCA 1997)) (emphasis added).


author: PER CURIAM.

text:
    DEVELOPERS OF NORTHLAKE, INC., and Twin Cities Investors, Inc., Appellants, v. NORTHLAKE EQUITIES, INC., Appellee.
    No. 4D04-2064.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2005.

      Reed B. McClosky of Freedman & McClosky, P.A., Fort Lauderdale, for appellants.
    Jeffrey L. Hochman and Tamara M. Scrudders of Johnson, Anselmo, Murdoch, Burke, Piper & McDuff, P.A., Fort Laud-erdale, for appellee.
   PER CURIAM.

Corporate partners in a development project appeal an order enforcing a court-approved mediation settlement agreement. They argue the court erred in interpreting a provision regarding the payment of proceeds from the sale of a parcel of the development project. We agree and reverse.

The Northlake Shopping Center project is owned by two corporations, the Developers of Northlake (Developers) and Twin Cities Investors. Each of the two principal stockholders of Developers and Twin Cities involved in this dispute has a 50% ownership in each of these corporations. However, only one of them is associated with the owners of Northlake Equities, Inc. (Equities).

Developers and Twin Cities entered into an agreement to pay Equities $825,000 as a development fee for overseeing construction of phase I of the Northlake project. Disputes arose, one of which concerned the $825,000 fee. Not surprisingly, this resulted in litigation.

The parties agreed to have an independent Canadian attorney, Robert Raich, resolve the disputes. After conducting a two-day hearing, Mr. Raich rendered a decision. In paragraph 35, he determined that:

[wjith respect to Northlake, I am satisfied that Equities deserves some compensation for its work but not in the amount of $825,000.00. I am satisfied that a fee of $300,000 is warranted to the end of phase I of this project, which amount I order to be paid to Equities on the sale of the project.

On August 23, 1999, the parties entered into a mediation settlement agreement, binding them to the arbitration decision. The trial court approved and ratified the mediation settlement agreement.

In March 2002, Developers and Twin Cities sold parcel No. 4, a small portion of phase I (2.76%), to Wendy’s Restaurants. Developers and Twin Cities made no payment to Equities from the proceeds of the sale. Equities filed a “Verified Motion to Enforce the 8/23/99 Order,” demanding 2.76% of the $300,000 determined in the arbitrator’s decision. Developers and Twin Cities refused to pay, claiming that no money was owed to Equities until the Northlake project was sold in its entirety.

On April 16, 2004, the trial court held a hearing on Equities’ verified motion. Each side claimed the arbitration provision was unambiguous. Equities argued the $300,000 should be paid on a pro rata basis as parcels of the Northlake project were sold. It suggested to the trial court that foregoing payment until the entire project is sold would lead to an unreasonable and absurd result intended neither by the arbitrator nor by the court that approved the settlement.

Developers and Twin Cities argued no payment was due until the last parcel of the Northlake project was sold. Alternatively, if the court found the provision ambiguous, then the arbitrator should be called upon to clarify the ambiguity.

The trial court adopted Equities’ interpretation of the provision and granted the motion to enforce. The court ordered Developers to pay Equities $8,283.00 or 2.76% of the $300,000. This appeal followed.

The provision adopted by the trial court in its order, incorporating the mediation settlement agreement, is subject to the common rules of construction and presents a question of law for the court. McCann v. Walker, 852 So.2d 366 (Fla. 6th DCA 2003). Parol evidence should only be considered if the wording is ambiguous. Friedman v. Va. Metal Prods. Corp., 66 So.2d 515 (Fla.1952). The parties obviously read the provision differently. Nevertheless, we find the language in paragraph 35 is clear and susceptible of only one interpretation.

Giving that language its plain meaning, the fee is warranted to the end of phase I, but is to be paid only upon the sale of the project. While it may make little sense to require Equities to await the sale of the entire project before it is compensated when it is overseeing only the development of phase I, that is precisely what the arbitrator’s words say. The inequity of the outcome does not change the meaning of the words.

Because we find the language to be unambiguous, there is no need to consider the use of parol evidence or referral to the arbitrator for clarification. Further, neither party sought clarification of this provision within the statutory time frames of the arbitration statute. Such clarification is no longer an option. See § 682.10, Fla. Stat. (1999).

For these reasons, we reverse the order enforcing the mediation settlement agreement and the judgment for $8,283.00 and remand the case to the trial court for entry of an order denying Equities’ motion to enforce.

FARMER, KLEIN and MAY, JJ„ concur.

      . The trial court did not include Twin Cities in the order.


author: COPE, C.J. COPE, C.J.

text:
    Willard BRYANT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2332.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 2005.
    Opinion on Rehearing Dec. 27, 2006.

      Willard Bryant, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, C.J., and GERSTEN and SUAREZ, JJ.
   COPE, C.J.

Willard Bryant appeals an order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm.

The trial court denied the defendant’s motion on the theory that it was successive. On this appeal, defendant-appellant Bryant correctly states that where a trial court denies a motion on account of successiveness, the documents demonstrating successiveness must be attached to the trial court’s order. See Ranaldson v. State, 672 So.2d 564, 565 (Fla. 1st DCA 1996). No such attachments are present in this case. Therefore the trial court’s order cannot be sustained insofar as it relies on the ground of successiveness.

The trial court also denied the defendant’s motion as time-barred. We re-spectfully disagree with that conclusion. The defendant in this case claims that his sentence on count one exceeds the legal maximum. That is a claim which may properly be brought under Florida Rule of Criminal Procedure 3.800(a), as the defendant has done. See State v. Callaway, 658 So.2d 983, 988 (Fla.1995).

Apparently because the sentence on count one was imposed pursuant to a plea bargain, the trial court ruled that such a claim must be brought under Florida Rule of Criminal Procedure 3.850, and as such, was time-barred. It is true that a claim that a sentence exceeds the legal maximum may be brought under Rule 3.850. Rule 3.850 states, in part, “A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time.” Fla. R.Crim. P. 3.850(b). Thus, when such a claim is made under Rule 3.850, it is not subject to any time limit. Id. That is so even where a sentence which exceeds the legal maximum was imposed pursuant to a plea bargain. See Collado v. State, 776 So.2d 355, 356 (Fla. 3d DCA 2001), and eases cited therein.

On the merits, however, we affirm. The defendant is incorrect in believing that his sentence exceeds the legal maximum. The defendant entered into a plea agreement in 1979 whereby he pled guilty in count one to second degree murder (as reduced from the charge of first degree murder) as well as other offenses. A life sentence was imposed on count one.

The defendant is under the impression that second degree murder is a first degree felony as to which the legal maximum sentence is thirty years. He maintains that count one was enhanced to a life felony under circumstances declared impermissible in Traylor v. State, 785 So.2d 1179 (Fla.2000). He requests relief under Traylor.

In reality, the offense of second degree murder is “a felony of the first degree, punishable by imprisonment for a term of years not exceeding life.... ” § 782.04(2X3), Fla. Stat. (1977). For such an offense, a life sentence is a legal sentence. That being so, the defendant’s life sentence on count one is a legal sentence. See Betancourt v. State, 804 So.2d 313, 315 (Fla.2001); Bannister v. State, 844 So.2d 767, 768 (Fla. 3d DCA 2003).

Affirmed.

On Motion for Rehearing

COPE, C.J.

By motion for rehearing defendant-appellant Bryant argues that he is entitled to a determination whether his 1979 second degree murder conviction is a first degree felony punishable by life imprisonment, or whether it was reclassified on account of the use of a firearm, and is therefore a life felony. The defendant argues that the level of felony makes a difference in his parole eligibility. As the defendant’s crime date occurred several years prior to the adoption of the sentencing guidelines, the defendant has a parole-eligible sentence. The defendant has attached to his motion correspondence with the Florida Parole Commission, which appears to support his claim that the level of felony may make a difference to consideration by the Florida Parole Commission.

We therefore reverse the order now before us in part and remand for the trial court to review the record and make a determination whether the defendant’s second degree murder conviction is a life felony (by reason of reclassification pursuant to § 775.087(1), Fla. Stat. (Supp.1976)) or was not reclassified, and is therefore a first degree felony punishable by life imprisonment.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

      . Alternatively, it is sufficient if the documents demonstrating successiveness are attached to the defendant’s motion, the State's response, the defendant’s reply, or any motion for rehearing, response, or reply. See Fla. R.App. P. 9.141(b)(2)(A).

      . According to the indictment, the crime date was May 12, 1979.

      . The judgment in the defendant's case does not indicate whether the court treated count one as a first degree felony punishable by life, or a life felony. Under the analysis just stated, it makes no difference.