source: Caselaw Access Project

author: SMITH, Justice.

license: Public Domain

text:
    HOUSING AUTHORITY OF the CITY OF HUNTSVILLE v. HARTFORD ACCIDENT AND INDEMNITY COMPANY.
    1040885.
    Supreme Court of Alabama.
    Sept. 29, 2006.
    John M. Heacock, Jr., of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellant.
    L. Graves Stiff III and Elise M. Frohsin of Starnes & Atchison, LLP, Birmingham, for appellee.
   SMITH, Justice.

On April 21, 2004, the Housing Authority of the City of Huntsville (“the Housing Authority”) sued Hartford Accident and Indemnity Company (“Hartford”), alleging that Consolidated Construction Company (“Consolidated”), for whom Hartford had issued a performance bond, had improperly installed fire-alarm systems at a residential facility operated by the Housing Authority. The complaint sought to enforce Hartford’s obligations under the performance bond and demanded a judgment against Hartford “for compensatory damages in such amount as a jury may determine, plus interest and the costs of this action.” Hartford filed a motion for a summary judgment, which the trial court granted on February 15, 2005. The Housing Authority appeals. We affirm.

Facts and Procedural History

Hartford issued a performance bond in favor of Consolidated, the general contractor for the renovation of the Housing Authority’s premises. It is undisputed that Consolidated substantially completed its work at the premises on May 1, 1999, and that the Housing Authority discovered defects in the fire-alarm systems within one year of the completion date. Finally, it is undisputed that the Housing Authority did not file any action against Consolidated or Hartford for damages associated with Consolidated’s work at the premises within the applicable two-year statutory limitations period. The Housing Authority filed this action on April 21, 2004, almost five years after Consolidated had completed its work, seeking to enforce Hartford’s obligations under the performance bond. Consolidated was not made a party in this case.

The trial court, in its summary-judgment order, held:

“Under the applicable statute of limitations, all civil claims, whether in tort or contract, against an architect, engineer or contractor must be commenced within two (2) years ‘next after a cause of action accrues or arises, and not thereafter.’ Ala.Code [1975,] § 6-5-221(a)....
“It is not disputed that the foregoing statute of limitations applies to any action against Consolidated, as a contractor for the [Housing] Authority project. It is also undisputed that the [Housing Authority] failed to commence an action against Consolidated within the period of time required by Ala.Code [1975,] §§ 6-5-220(e) and 6-5-221(a).
“Under Alabama law, a surety may make any defense not personal to the principal that the principal can. More specifically, a surety may assert as a defense the statute of limitations available to the principal even if the principal through negligence, inadvertence, collusion, or otherwise, has not raised it. Alabama Surface Mining Reclamation Comm’n v. Commercial Standard Ins. Co., 469 So.2d 619, 620 (Ala.Civ.App.1985) (citing Commercial Standard Ins. Co. v. Alabama Surface Mining Reclamation Comm’n, 443 So.2d 1245, 1249 (Ala.Civ.App.1983), cert. denied, 467 U.S. 1242 (1984)).
“Because the [Housing Authority] failed to commence an action against Consolidated within two years following its discovery of the alleged deficiencies in the fire alarm system, and because Hartford, as surety, is entitled to assert the benefit of all defenses available to its principal, all claims against Hartford, as surety, are time-barred.”

Standard of Review

In Smith v. State Farm Mutual Automobile Insurance Co., 952 So.2d 342, 346 (Ala.2006), this Court stated the applicable standard of review governing an appeal from a trial court’s ruling on a summary-judgment motion:

“We review the trial court’s grant or denial of a summary-judgment motion de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala.2006). Once the summary-judgment movant shows there is no genuine issue of material fact, the nonmovant must then present substantial evidence creating a genuine issue of material fact. Id. ‘We view the evidence in the light most favorable to the nonmovant.’ 943 So.2d at 795. We review questions of law de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala.2006).”

Discussion

The Housing Authority presents one issue on appeal: Whether Hartford can assert as a defense the two-year statute of limitations found at § 6-5-221, Ala. Code 1975. The Housing Authority alleges that the two-year statute of limitations asserted by Hartford under § 6-5-221, Ala.Code 1975, applies only to the builder, i.e., Consolidated, and to certain other design professionals. The Housing Authority argues that all other parties, including sureties, are excluded from asserting the two-year statute of limitations.

The statute of limitations in the present case is found at § 6-5-221, Ala.Code 1975; that statute reads, in part:

“(a) All civil actions in tort, contract, or otherwise against any architect or engineer performing or furnishing the design, planning, specifications, testing, supervision, administration, or observation of any construction of any improvement on or to real property, or against builders who constructed, or performed or managed the construction of, an improvement on or to real property designed by and constructed under the supervision, administration, or observation of an architect or engineer, or designed by and constructed in accordance with the plans and specifications prepared by an architect or engineer, for the recovery of damages for:
“(i) Any defect or deficiency in the design, planning, specifications, testing, supervision, administration, or observation of the construction of any such improvement, or any defect or deficiency in the construction of any such improvement; or
“(ii) Damage to real or personal property caused by any such defect or deficiency; or
“(in) Injury to or wrongful death of a person caused by any such defect or deficiency;
“shall be commenced within two years next after a cause of action accrues or arises, and not thereafter. Notwithstanding the foregoing, no relief can be granted on any cause of action which accrues or would have accrued more than thirteen years after the substantial completion of construction of the improvement on or to the real property, and any right of action which accrues or would have accrued more than thirteen years thereafter is barred, except where prior to the expiration of such thirteen-year period, the architect, engineer, or builder had actual knowledge that such defect or deficiency exists and failed to disclose such defect or deficiency to the person with whom the architect, engineer, or builder contracted to perform such service.
“(b) This section shall apply to any civil action commenced against an architect, engineer, or builder as defined in this article, whether for his or her own act or omission or failure to act, for the act or omission or failure to act of his or her agents or employees, or for the act or omission or failure to act of any person or entity, its agents, or employees, who are acting under the instructions, control, or supervision of the architect, engineer, or builder.”

The Housing Authority argues that § 6-5-221 does not apply in this case because Hartford is not an “architect, engineer, or builder.” Hartford argues, on the other hand, that, as a surety, it may, under the common law, assert as a defense the statute of limitations available to its principal, Consolidated. The trial court relied on Alabama Surface Mining Reclamation Commission v. Commercial Standard Insurance Co., 469 So.2d 619 (Ala.Civ.App.1985), in deciding that Hartford could assert the same statute-of-limitations defense available to Consolidated. In Alabama Surface Mining, the Alabama Surface Mining Reclamation Commission sued a surety under a bond executed pursuant to the Surface Mining Reclamation Act. That Act required that complaints alleging violations of Commission regulations “must, as a jurisdictional matter, be filed with the Commission within 90 days of the event or events giving rise to such complaint.” Commercial Standard Ins. Co. v. Alabama Surface Mining Reclamation Comm’n, 443 So.2d 1245, 1247 (Ala.Civ.App.1983). The Commission argued that the liability of the operator and the surety under the bond is not extinguished until reclamation is complete. The Commission further contended that the bond obligations under the Act are enforceable by a breach-of-contract action, which is a separate and distinct remedy from a verified complaint filed under the Act and, thus, not subject to the 90-day limitations period of the Act. The Court of Civil Appeals affirmed the trial court’s summary judgment in favor of the surety, discharging it from liability under the bond. Specifically, the Court of Civil Appeals held:

“The following language from Commercial Standard [Insurance Co. v. Alabama Surface Mining Reclamation Commission, 443 So.2d 1245 (Ala.Civ.App.1983),] remains determinative:
“ ‘Under Alabama law, a surety may make any defense not personal to the principal, that the principal can. United States Fidelity & Guaranty Co. v. Town of Dothan, 174 Ala. 480, 56 So. 953 (1911). Specifically a surety may assert as a defense the statute of limitations available to the principal, State v. Bi-States Construction Co., 269 N.W.2d 455 (Iowa 1978), even if the principal through negligence, inadvertence, collusion, or otherwise, has not raised it. United States v. Frankini Construction Co., 139 F.Supp. 153 (D.Mass.1956). See also, 72 C.J.S. Principal and Surety § 255 (1951). Thus, in this case, the surety, Commercial, could claim the benefit of Hendrix’[s] defense of the lack of jurisdiction in the Commission to entertain the complaint against it.’

443 So.2d at 1249.”

Alabama Surface Mining, 469 So.2d at 620.

The Housing Authority has not asked this Court to overrule the express holdings in Alabama Surface Mining and Commercial Standard. We acknowledge that there is a conflict of authority as to whether a surety may assert as a defense the statute of limitations available to the principal.

Some jurisdictions agree with Alabama Surface Mining and hold that the expiration of the statutory limitations period against the principal obligor discharges the secondary obligor. See Lawyers Surety Corp. v. Texas, 825 S.W.2d 802 (Tex.App.1992) (holding that the surety is bound by the obligation of the principal and the surety’s liability depends upon the principal’s liability and, thus, the three-year statute of limitations for the initiation of a suit for unpaid gas and diesel fuel taxes applied to a collection action by the state against the surety on a tax bond); State v. Bi-States Constr. Co., 269 N.W.2d 455, 457 (Iowa 1978) (holding that “a surety may assert as a defense the statute of limitations available to the principal”). But see Bloom v. Bender, 48 Cal.2d 793, 798, 313 P.2d 568, 571 (1957) (holding that the obligation of the surety remains, notwithstanding the fact that the statute of limitations has run on the obligation of the surety’s principal).

We adhere to the rule that a surety may assert as a defense the statute of limitations available to the principal. We thus hold that, in the present case, Hartford, as a surety for Consolidated, may assert the defenses available to Consolidated, including the statute-of-limitations defense.

We note that this holding is in accordance with Restatement (Third) of Surety-ship & Guaranty § 43 (1996), which states:

“[I]f the obligee fails to institute action against the secondary obligor on the secondary obligation until after the obli-gee’s action against the principal obligor on the underlying obligation is barred by the running of the statute of limitations as to that action, the secondary obligor’s rights and duties with respect to the principal obligor and the obligee are the same as if, on the day that the statute of limitations expired, the obligee had released the principal obligor from its duties pursuant to the underlying obligation without preserving the secondary obligor’s recourse against the principal obligor. Accordingly, the principal obligor is discharged from duties to the secondary obligor ..., and the secondary obligor is discharged from duties to the obligee.... ”

The Housing Authority relies on several cases in support of its contention that a surety cannot assert the statute-of-limitations defense available to its principal. However, all of the cases it cites are distinguishable. The Housing Authority argues that under Burkes Mechanical, Inc. v. Ft. James-Pennington, Inc., 908 So.2d 905 (Ala.2004), Hartford cannot claim the benefit of the statute of limitations set out in § 6-5-221. In Burkes Mechanical, a party alleged that it met the definition of a “builder” under § 6-5-221; however, this Court analyzed that claim and held otherwise. In the present case, Hartford does not make any allegation that it satisfies the statutory definition of a builder; thus Burkes Mechanical does not apply. The Housing Authority also cites City of Birmingham v. Cochrane Roofing & Metal Co., 547 So.2d 1159 (Ala.1989), for the proposition that a surety’s obligation may be subject to a longer statute of limitations than that of the principal. However, the surety in Cochrane Roofing was not even a party to the action, and this Court did not discuss the viability of the argument that a surety may assert a statute-of-limitations defense that is available to the principal. Finally, the Housing Authority cites Ex parte Water Works Board of Gulf Shores, 508 So.2d 242 (Ala.1987), which holds that an injured party may proceed against a surety without first exhausting all of its remedies against the principal. It is unclear how this holding applies to the present situation. That holding says nothing about a surety’s ability to assert the statute-of-limitations defense available to its principal, and Hartford has not made any allegation that the Housing Authority must exhaust all remedies against the principal before the Housing Authority may proceed against Hartford. Therefore, Ex parte Water Works has no application to the present situation.

The trial court’s holding that Hartford, as a surety, may assert the same statute-of-limitations defense that its principal may assert is in conformity with the prior controlling decisions of Commercial Standard and Alabama Surface Mining and with the Restatement (Third) of Surety-ship & Guaranty and the rule expressed in other jurisdictions.

The Housing Authority alleges that, even if the common law allows a surety to assert a statute-of-limitations defense available to its principal, § 6-5-228 expressly excludes a surety from asserting the two-year limitations period available under § 6-5-221. Therefore, the Housing Authority argues, the six-year statute of limitations applicable to contract actions should apply to Hartford. However, while it appears that the two-year limitations period does not expressly apply to a surety, the statute does not limit the application of any existing common-law doctrine.

Section 6-5-228, Ala.Code 1975, provides:

“Nothing contained in this article shall be construed as affecting any period of limitation for any cause of action arising out of or relating to the sale or disposition of real estate, or against any person other than architects, engineers and builders as defined in this article.”

It is well-settled law in this State that the interpretation of a statute begins with the plain language of the statute itself. Ex parte Achenbach, 788 So.2d 4 (Ala.2000). In this case, the statute is silent with regard to the common-law doctrine that allows a surety to assert the defenses that are available to its principal. The common-law doctrine allowing a surety to assert all defenses available to its principal was in existence when § 6-5-221 was enacted. The legislature could have expressly limited that doctrine if it desired to do so, but it chose not to. See Ex parte Bozeman, 781 So.2d 165, 169 (Ala.2000) (holding that “the Alabama Legislature could have stepped beyond the confines of the text of the compact and included limitations in the statute expressly allowing ‘technical’ violations to occur. However, it, like Congress, did not do so. This Court will not interject its interpretation of what the Legislature should have done.”).

Contrary to the Housing Authority’s allegation, the plain language of the statute does not compel the conclusion that the legislature in § 6-5-221 expressly limited the common-law doctrine that allows a surety to assert the defenses that are available to its principal. On its face, the statute applies only to “architects, engineers and builders,” and it expressly states that all other periods of limitation for any cause of action against any other party are unaffected by the statute. The statute simply does not apply to Hartford, who is a surety and not an architect, engineer, or builder. The statute neither expands nor limits defenses available to Hartford; instead, it has no effect on Hartford at all. If, under the common law, a surety may assert the statute of limitations available to its principal, then, according to § 6-5-228, that common-law rule is unaffected by § 6-5-221. Therefore, Hartford may assert the limitations period available to its principal, whatever that period may be. To hold that § 6-5-221 does not allow Hartford to assert a statute-of-limitations defense that is available to its principal, even though Hartford could otherwise do so, would be to do exactly the opposite of what § 6-5-228 commands, because such a construction of the statute would directly affect a period of limitation for a cause of action against a person other than an architect, engineer, or builder.

Conclusion

In Alabama, a surety may assert the statute of limitations available to its principal; this ability is unaffected by § 6-5-221, Ala.Code 1975. The material facts in the present case are undisputed, and the Housing Authority has failed to show, as a matter of law, that the trial court’s judgment was erroneous. The trial court’s summary judgment in favor of Hartford is affirmed.

AFFIRMED.

NABERS, C.J., and SEE, LYONS, HARWOOD, WOODALL, STUART, BOLIN, and PARKER, JJ., concur.

      . It is undisputed that Hartford is not an architect, engineer, or builder for purposes of § 6-5-221. See § 6-5-220(a)-(c), Ala.Code 1975.


author: WOODALL, Justice.

text:
    Ex parte VOLVO TRUCKS NORTH AMERICA, INC., and Capital Trailer & Equipment Company, Inc., d/b/a Capital Volvo Truck & Trailer. (In re Christee Johnson, as administratrix of the estate of Joe Freeman, Jr., deceased v. Volvo Trucks North America, Inc., et al.). Ex parte Indiana Mills & Manufacturing, Inc. (In re Christee Johnson, as administratrix of the estate of Joe Freeman, Jr., deceased v. Volvo Trucks North America, Inc., et al.).
    1051074 and 1051077.
    Supreme Court of Alabama.
    Sept. 29, 2006.

      John C. Morrow, D. Christopher Carson, and Martin E. Burke of Burr & For-man, LLP, Birmingham, for petitioners Volvo Trucks North America, Inc., and Capital Trailer & Equipment Company, Inc.
    Charles A. Stewart III and Angela R. Rogers of Bradley Arant Rose & White, L.L.P., Montgomery, for petitioner Indiana Mills & Manufacturing, Inc.
    D. Michael Andrews of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for respondent.
   WOODALL, Justice.

Volvo Trucks North America, Inc. (“Volvo Trucks”); Capital Trailer & Equipment Company, Inc., d/b/a Capital Volvo Truck & Trailer (“Capital”); and Indiana Mills & Manufacturing, Inc. (“Indiana Mills”), petition this Court for writs of mandamus directing the Montgomery Circuit Court to vacate its order denying their motions for a change of venue to the Butler Circuit Court pursuant to § 6-3-21.1(a), Ala.Code 1975, the forum non conveniens statute, and to transfer this action to Butler County. We deny the petitions.

I. Factual Background

These petitions arise out of a complaint filed in Montgomery Circuit Court by Christee Johnson, as administratrix of the estate of her father, Joe Freeman, Jr., deceased, against Volvo Trucks, Capital, and Indiana Mills. According to the complaint, Freeman was killed when the truck he was operating on a highway in Butler County for his employer, Evergreen Forest Products (“Evergreen”), overturned in a collision with an oncoming vehicle. Freeman was thrown through the windshield of the truck, which was a 2004 Volvo truck manufactured by Volvo Trucks and sold to Evergreen by Capital at Capital’s place of business in Montgomery.

The complaint alleged that the “driver restraint system” installed in the truck, which was manufactured by Indiana Mills, was defective in that it failed to restrain Freeman within the vehicle. It alleged negligence, wantonness, “uncrashworthiness,” and violations of the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”).

The defendants moved to transfer the action from Montgomery County to Butler County on the ground of forum, non conve-niens, contending that Butler County was an appropriate forum and the more convenient forum for the witnesses in this case. After the Montgomery Circuit Court denied their motions, the defendants filed these mandamus petitions.

II. Discussion

“‘[A] writ of mandamus is an extraordinary remedy, which requires the petitioner to demonstrate a clear, legal right to the relief sought, or an abuse of discretion.’ ” Ex parte Leasecomm Corp., 886 So.2d 58, 62 (Ala.2003) (quoting Ex parte Palm Harbor Homes, Inc., 798 So.2d 656, 660 (Ala.2001)). “ ‘A petition for a writ of mandamus is a proper method for presenting a venue challenge based on the doctrine of forum non conveniens.’ ” Ex parte Brookwood Health Servs., Inc., 781 So.2d 954, 956-57 (Ala.2000) (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)).

Transfer of an action on the basis of forum non conveniens is accomplished pursuant to § 6-3-21.1(a), which provides, in pertinent part:

“With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action ... to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.... ”

(Emphasis added.)

“ ‘The burden of proving that venue is improper, or that venue should be transferred or changed because of the application of the doctrine of forum non con-veniens is upon the party making such a claim.’ ” Ex parte Wiginton, 743 So.2d 1071, 1075 (Ala.1999)(quoting trial court’s order). “The doctrine [of forum non con-veniens ] is applicable only when the action is commenced in a county in which venue is appropriate.” Montgomery Elevator Co. v. Pinkney, 628 So.2d 767, 768 (Ala.Civ.App.1993). On the bases of Ala.Code 1975, § 6-3-7(a)(2) (“[a]ll civil actions against corporations may be brought in ... the county of the corporation’s principal office in this state”), and Ala. R. Civ. P. 82(c) (“Where several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought.”), the petitioners concede that Montgomery County is “an appropriate venue” within the meaning of § 6-3-21.1 for the commencement of this action.

Nevertheless, in order to satisfy their burden of proving that § 6-3-21.1 is applicable, the petitioners “must establish (1) that there is another county where venue is appropriate and (2) that transferring the case to that county is ‘in the interest of justice’ or necessary ‘for the convenience of parties and witnesses.’ ” Ex parte Sawyer, 892 So.2d 898, 903 (Ala.2004) (emphasis added). Thus, as a threshold matter, the petitioners had the burden of showing that Butler County is a county “in which the action might have been properly filed.”

In that connection, Ala.Code 1975, § 6-3-7, provides, in pertinent part:

“(a) All civil actions against corporations may be brought in any of the following counties:
“(1) In the county in which a substantial part of the events or omissions giving rise to the claim occurred ...; or
“(2) In the county of the corporation’s principal office in this state; or
“(3) In the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiffs residence; or
“(4) If subdivisions (1), (2), or (3) do not apply, in any county in which the corporation was doing business by agent at the time of the accrual of the cause of action.”

(Emphasis added.)

In the trial court, the petitioners argued:
“Since the only named defendants in this lawsuit are corporations, ... the Court must apply Alabama’s venue statute pertaining to suits against corporations. According to Ala.Code § 6-3-7(a)(1), civil actions against corporations may be brought in ‘the county in which a substantial part of the events or omissions giving rise to the claim occurred.... ’ Thus, since the accident underlying this lawsuit occurred in Butler County, Plaintiff could have originally filed suit there. Butler County is therefore an appropriate transferee venue under Alabama’s doctrine of forum non conve-niens.”

(Emphasis added.) In fact, the petitioners relied exclusively on § 6-3-7(a)(l) as a basis for venue in Butler County.

However, Johnson argues that § 6-3-7(a)(1) cannot provide the basis for venue in this case, because, she states, “this is a product liability case brought against corporate defendants and the proper inquiry is the location of the events or omissions attributed to the corporate defendants, not ... the place of the [accident].” Johnson’s brief, at 7 (emphasis added). Thus, she contends that it was the marketing and sale in Montgomery County of the truck with the allegedly defective seatbelt that constituted the relevant “events or omissions,” not the accident in Butler County as a result of which Freeman was killed.

For that proposition, she cites Ex parte Suzuki Mobile, Inc., 940 So.2d 1007 (Ala.2006). In Suzuki, we clarified the operative language of § 6-3-7(a)(l) in the context of a personal-injury action based on product-liability theories. Suzuki arose “out of an accident that occurred in Choctaw County involving an all-terrain vehicle (‘ATV’) and allegedly resulting in personal injuries to [Brian R. Frennea II].” 940 So.2d at 1008. “The ATV was purchased in Mobile County from Suzuki Mobile, Inc., which does business as Hall’s Motorsports, Inc. (‘Hall’s’), and has its principal place of business in Mobile County.” Id. Brian’s father, Brian R. Frennea, filed a complaint in Choctaw County against Hall’s and other corporate defendants, which allegedly had “designed, manufactured, assembled, distributed, or sold the ATV.” The complaint asserted product-liability theories, including a claim under the AEMLD. Id.

The defendants moved to transfer the action to Mobile County, contending that § 6-3-7(a)(l) did not authorize the action in Choctaw County. According to Fren-nea, however, § 6-3-7(a)(l) provided the only basis for an action in Choctaw County. 940 So.2d at 1009. Thus, the disposi-tive question was whether the situs of the accident was the proper focus of an analysis under § 6-3-7(a)(l) in an action alleging personal injuries caused by a defective product. We answered that question in the negative.

In so doing, we said: “ ‘We construe “the events or omissions giving rise to the claim” to be a clear reference to the wrongful acts or omissions of the corporate defendant.’ 940 So.2d at 1010 (quoting Ex parte Pikeville Country Club, 844 So.2d 1186, 1189 (Ala.2002) (emphasis added in Suzuki)). We explained that, in an action for injuries caused by an allegedly defective product, the “wrongful acts or omissions of the corporate defendant” are acts such as “designing, manufacturing, assembling, distributing, and selling” the allegedly defective product, along with any alleged “fail[ure] to warn.” 940 So.2d at 1010.

On the principle of Suzuki it is clear that venue in Butler County cannot be based on § 6-3-7(a)(l). It is not disputed that the sale of the truck with the allegedly defective seatbelt occurred in Montgomery County. The petitioners’ reliance on subsection (a)(1) was, therefore, misplaced.

In these mandamus proceedings, the petitioners argue — for the first time— that venue in Butler County, where Johnson lives, would be proper on the basis of § 6-3-7(a)(3), asserting that Capital “does business by agent in the county of the plaintiffs residence.” The petitioners filed in each proceeding a motion to accept an affidavit of Greg Maxwell, the vice president of Capital. The affidavit, which was not presented to the trial judge, purports to establish that Capital does business in Butler County. However, the arguments and affidavit simply come too late.

It is well settled that we “will not ... issue a writ of mandamus commanding a trial judge to rescind an order, based upon a ground asserted in the petition for the writ of mandamus that was not asserted to the trial judge, regardless of the merits of a petitioner’s position in the underlying controversy.” State v. Reynolds, 887 So.2d 848, 851-52 (Ala.2004); see also Ex parte Ebbers, 871 So.2d 776, 787 (Ala.2003); Ex parte Wiginton, 743 So.2d at 1073. Similarly, evidence not presented to the trial court will not be considered in a mandamus proceeding. Ex parte Hanna Steel Corp., 905 So.2d 805, 808 (Ala.2004); Ex parte AAMCO Transmissions, Inc., 897 So.2d 285, 288 (Ala.2004); Ex parte Walter Indus., Inc., 879 So.2d 547, 549 (Ala.2003); Ex parte Fontaine Trailer Co., 854 So.2d 71, 74 (Ala.2003); Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.1995). Consequently, the petitioners’ motions to accept the affidavit of Greg Maxwell are denied.

III. Summary

In short, the petitioners presented neither argument nor facts to the trial court sufficient to establish Butler County as an appropriate forum for this action. Thus, they have failed to satisfy their threshold burden of proving that § 6-3-21.1 is applicable. We therefore pretermit consideration of their arguments that Butler County is the more convenient forum. Because the petitioners have not shown that they are entitled to a writ of mandamus, their petitions are denied.

1051074 — PETITION DENIED.

1051077 — PETITION DENIED.

NABERS, C.J., and SEE, LYONS, HARWOOD, STUART, SMITH, BOLIN, and PARKER, JJ., concur.


author: THOMPSON, Judge.

text:
    ALLIED PRODUCTS CORPORATION v. Eddie W. THOMAS.
    2040458.
    Court of Civil Appeals of Alabama.
    Sept. 15, 2006.
    Kyle L. Kinney and John B. Welsh of Gaines, Wolter & Kinney, P.C., Birmingham, for appellant.
    Richard E. Crum of Cobb, Shealy, Crum & Derrick, P.C., Dothan; and William C. Maddox, Dothan, for appellee.
   On Application for Rehearing

THOMPSON, Judge.

The opinion of December 30, 2005, is withdrawn, and the following is substituted therefor:

On July 29, 2002, Eddie W. Thomas filed in the trial court a complaint against a party he designated as “Bush Hog L.L.C., A Division of Crown Consolidated Industries.” In his complaint, Thomas sought workers’ compensation benefits following a work-related injury that he sustained on or about September 12, 1997. Relevant to this appeal, Thomas alleged that “Bush Hog, L.L.C.,” was an Alabama limited liability company and that at the time of his injury he was employed by “Bush Hog, L.L.C.” On August 2, 2002, Thomas served process on “Bush Hog, L.L.C.,” at 2501 Griffin Avenue in Selma, Alabama.

On August 12, 2002, “Bush Hog, LLC,” filed a motion to dismiss, asserting that Bush Hog, LLC, was not Thomas’s employer at the time of the accident and, therefore, that Thomas had served the wrong defendant. In support of its motion to dismiss, Bush Hog, LLC, attached an August 6, 2002, affidavit of David Middle-brooks, the director of human resources for Bush Hog, LLC. In his August 6, 2002, affidavit, Middlebrooks stated, in relevant part:

“Prior to March 7, 2000, the Bush Hog Division of Allied Products Corporation was the owner of the manufacturing facility in Selma, Alabama. Eddie Thomas was an employee of the Bush Hog Division of Allied Products Corporation. On March 7, 2000, Allied Products Corporation sold the Bush Hog Division of Allied Products Corporation to Cfrown] C[onsolidated] Industries. The sale was for the assets of Bush Hog only. As part of the sale, Allied Products Corporation retained all of the liabilities, including the liability for pending workers’ compensation claims against Bush Hog Division of Allied Products Corporation.
“Eddie Thomas’s correct employer at the time of his accident on September 12, 1997, was the Bush Hog Division of Allied Products Corporation and not Bush Hog, LLC, a Division of Crown Consolidated Industries, as alleged in Eddie Thomas’s Complaint.”

On September 23, 2002, the trial court granted the motion to dismiss filed by Bush Hog, LLC.

On September 30, 2002, Thomas moved to amend his complaint to name “Bush Hog Division of Allied Products Corporation” as a defendant. The trial court granted Thomas’s motion to amend on October 21, 2002. On December 16, 2002, Thomas served “Bush Hog Division of Allied Products Corporation c/o David Mid-dlebrooks” at the same Selma address— 2501 Griffin Avenue, Selma, Alabama 36701 — that he had served “Bush Hog, L.L.C., A Division of Crown Consolidated Industries.” The summons indicates that Barbara McGuire signed for the summons and complaint.

Allied Products Corporation (“Allied Products”) did not file an answer or otherwise defend in the action. On February 20, 2004, the trial court entered a default judgment in favor of Thomas against “Bush Hog, a Division of Allied Products Corporation.” In the default judgment, the trial court found that Thomas was “permanently and totally disabled” and ordered “Bush Hog, a Division of Allied Products Corporation” to pay workers’ compensation benefits accordingly.

On October 13, 2004, Thomas filed a motion to amend the February 20, 2004, judgment; the assertions in that motion are not relevant to this appeal.

On January 5, 2005, Allied Products filed a motion styled “motion to set aside [the] default judgment and objection to [Thomas’s] motion to amend [the] final order.” In substance, that motion sought relief from the judgment, pursuant to Rule 60(b), Ala. R. Civ. P. In its motion, Allied Products asserted that the default judgment was void because, it argued, it had not been served with process in accordance with former Rule 4(c)(6), Ala. R. Civ. P. In support of its motion, Allied Products attached another affidavit of Middlebrooks, dated December 17, 2004, and an exhibit that it referred to as the “Corporate Details sheet [for Allied Products] ... from the Alabama Secretary of State’s website.”

In his December 17, 2004, affidavit, Mid-dlebrooks stated, in relevant part:

“2. I am the Director of Human Resources for Bush Hog, LLC. I was the Director for Human Resources for Bush Hog at the Selma, Alabama manufacturing facility when Bush Hog was a division of the Allied Products Corporation.
“3. Bush Hog was a division of Allied Products Corporation on September 12, 1997.
“4. Prior to March 7, 2000, the Bush Hog Division of Allied Products Corporation was the owner of the manufacturing facility in Selma, Alabama, located at 2501 Griffin Avenue, Selma, Alabama 36701.
“5. On September 12, 1997, Eddie Thomas was an employee of the Bush Hog Division of Allied Products Corporation. I knew Eddie Thomas when he was an employee of Bush Hog Division of Allied Products Corporation.
“6. On March 7, 2000, Allied Products Corporation sold the assets but not the liabilities of the Bush Hog Division of Allied Products Corporation to Crown Consolidated Industries.
“7. Crown Consolidated Industries and Allied Products Corporation are two separate corporate entities.
“8. Included in the sale was the manufacturing facility at 2501 Griffin Avenue, Selma, Alabama 36701.
“9. Allied Products Corporation does not own Bush Hog, LLC, nor has it owned the manufacturing facility at 2501 Griffin Avenue, Selma, Alabama 36701 since the sale on March 7, 2000.
“10. Eddie Thomas’s correct employer at the time of the incident made the basis of his complaint was the Bush Hog Division of Allied Products Corporation.
“11. I was not an authorized agent for service of process for the Bush Hog Division of Allied Products Corporation on December 12, 2002.”

The “Corporate Details sheet [for Allied Products] ... from the Alabama Secretary of State’s website” indicated that on May 21, 2001, Allied Products withdrew from doing business in Alabama. That sheet also listed Allied Products’ address for service of process as “1355 East 93rd Street, Chicago, IL 60619”; its registered agent as “CSC-Lawyers Incorporated Service, 150 South Perry Street, Montgomery, AL 36104”; and its principal address as “208 South La Salle Street, Chicago, IL.”

In its motion, Allied Products asserted, among other things, that on December 11, 2002, Thomas attempted to serve Allied Products at 2501 Griffin Avenue, Selma, Alabama 36701, and that the summons indicated that the summons and complaint were served on Barbara McGuire, who, Allied Products presumed, was an employee of Crown Consolidated Industries. It does not appear that McGuire was an agent or an employee or associated in any way with Allied Products, and, therefore, she was not authorized to accept service on behalf of Allied Products, pursuant to former Rule 4(c)(6). Allied Products asserted that, pursuant to former Rule 4(c)(6), service on it was not proper at 2501 Griffin Avenue, Selma, Alabama 86701. Allied Products also asserted that it did not answer Thomas’s complaint because the summons and complaint were never served and never received by anyone at Allied Products and that Allied Products had no notice, pursuant to former Rule 4, Ala. R. Civ. P., that Thomas had filed suit.

On January 19, 2005, the trial court entered an order denying Allied Products’ motion for relief from the default judgment.

The record contains a letter brief that Thomas filed in the trial court on January 19, 2005, the same day the trial court denied Allied Products’ motion for relief from the default judgment. Attached to that letter as an exhibit was a copy of a letter from Mark C. Standefer, senior vice president, general counsel, and secretary for Allied Products, to counsel for Thomas, dated December 19, 2002, stating, in part, “I understand from Mr. David Middle-brooks at Bush Hog, LLC, that you recently amended a Complaint you previously filed on behalf of Eddie Thomas to name Allied Products Corporation ... as [a] defendant.” The letter stated that “Allied [Products] filed a voluntary petition under Chapter 11 of the bankruptcy code on October 2, 2000,” and that “[i]f, as reported by Mr. Middlebrooks, you have filed a lawsuit against Allied [Products], you are in violation of the automatic stay.” The letter then gave additional information regarding the bankruptcy proceedings, in-eluding the name and telephone numbers of Allied Products’ bankruptcy counsel.

Allied Products timely appealed. Allied Products contends on appeal that the trial court should have granted its Rule 60(b)(4), Ala. R. Civ. P., motion because, it argues, Allied Products was never properly served pursuant to former Rule 4(c)(6), Ala. R. Civ. P.

Rule 60(b), Ala. R. Civ. P., provides, in relevant part: “On motion and upon such terms as are just, the court may relieve a party or ‘ a party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (4) the judgment is void.”

“We review de novo a trial court’s ruling on a Rule 60(b)(4), Ala. R. Civ. P., motion.” Bank of America Corp. v. Edwards, 881 So.2d 403, 405 (Ala.2008) (citing Northbrook Indem. Co. v. Westgate, Ltd., 769 So.2d 890, 893 (Ala.2000)).

Rule 4(c), Ala. R. Civ. P., governs service of process on a corporation. Former Rule 4(c), which was in effect at the time Thomas attempted service on Allied Products, provided, in part:

“Service of process ... shall be made as follows:
“(6) ... Upon a corporation, either domestic or foreign, by serving the agent authorized by appointment or by law to receive service of process or by serving the corporation by certified mail at any of its usual places of business or by serving an officer or an agent of the corporation.”

In Bank of America, supra, our supreme court stated:

“ ‘ “The standard of review on appeal from the denial of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process. Satterfield v. Winston Industries, Inc., 553 So.2d 61 (Ala.1989).” ’ ”

881 So.2d at 405, quoting Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So.2d 655, 657 (Ala.2001), in turn quoting Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991). See also Northbrook, 769 So.2d at 893.

In Bank of America, supra, our supreme court also stated:

“ ‘One of the requisites of personal jurisdiction over a defendant is “perfected service of process giving notice to the defendant of the suit being brought.” Ex parte Volkswagenwerk Aktiengesells-chaft, 443 So.2d 880, 884 (Ala.1983). “When the service of . process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally.” Id. A judgment rendered against a defendant in the absence of personal jurisdiction over that defendant is void. Satterfield v. Winston Industries, Inc., 553 So.2d 61 (Ala.1989).’ ”

881 So.2d at 405, quoting Horizons 2000, Inc. v. Smith, 620 So.2d 606, 607 (Ala.1993). See also Northbrook, 769 So.2d at 893. “ ‘ “Failure of proper service under Rule 4 [Ala. R. Civ. P.] deprives a court of jurisdiction and renders its judgment void.” ’ ” Bank of America, 881 So.2d at 406, quoting Northbrook, 769 So.2d at 893, in turn quoting Ex parte Pate, 673 So.2d 427, 428-29 (Ala.1995).

In the present case, the evidence indicates that at the time Thomas was injured on September 12,1997, his employer was Allied Products. There is no evidence in the record indicating that “Bush Hog” was a separate legal entity from Allied Products at the time of the injury. Rather, the evidence indicates that “Bush Hog” was merely a division of Allied Products at that time. The evidence further indicates that Allied Products sold the assets of its Bush Hog division to Crown Consolidated Industries on March 7, 2000. Although the record is silent regarding the date on which Bush Hog, LLC, was formed, the evidence is clear that at the time Thomas attempted service on Allied Products on December 16, 2002, Bush Hog, LLC, bore a relationship to Crown Consolidated Industries. There is absolutely no evidence in the record indicating any type of relationship between Bush Hog, LLC, and Allied Products at the time of the attempted service.

Further, at the time of the attempted service, the evidence indicates that Middle-brooks was no longer an employee of Allied Products, but, instead, was an employee of Bush Hog, LLC. The evidence also indicates that at that time Middlebrooks was not an agent of Allied Products for service of process, and there is no evidence indicating that he was an officer of Allied Products. Similarly, there is no evidence indicating that Barbara McGuire, who signed for the summons and complaint on December 16, 2002, was an agent or officer of Allied Products. At the time Thomas attempted service on Allied Products, 2501 Griffin Avenue, Selma, Alabama 36701, was the usual place of business for Bush Hog, LLC — not Allied Products. Allied Products is a separate legal entity apart from Bush Hog, LLC, and Crown Consolidated Industries. Therefore, Thomas has not demonstrated that he properly served Allied Products in accordance with former Rule 4(c)(6).

Although we find no Alabama case with the same set of facts as the case before us, our caselaw supports our conclusion. See, e.g., Bank of America, 881 So.2d at 407 (holding that under former Rule 4(c)(6) the plaintiff failed to serve a bank with the complaint, when the plaintiff served the bank’s subsidiary, and, thus, the trial court never acquired jurisdiction over the bank and the default judgment against the bank was void; the bank’s assistant vice president averred that the address to which the complaint was sent was not the bank’s usual place of business and that the bank’s subsidiary was not the bank’s authorized agent, and there was absolutely no evidence in the record indicating the relationship between the bank and the subsidiary, other than the parent-subsidiary relationship); Northbrook, 769 So.2d at 893-94 (holding that under former Rule 4(c)(6) a corporation’s former office was not one of its “usual places of business” for purposes of servid of process, when, at the time of the attempted service, the corporation had ceased doing business at that location, no longer had any agents or employees there, and had not authorized agents or employees of its former parent corporation, which maintained an office at that location, to accept service or transact business on its behalf; corporation was not doing business at that location simply because its former parent corporation had agreed to accept and forward mail to the corporation at its new address).

Because Thomas failed to properly serve Allied Products pursuant to former Rule 4(c)(6), Ala. R. Civ. P., the trial court did not acquire jurisdiction over Allied Products. Thus, the default judgment against Allied Products is void, and the court should have granted Allied Products’ motion for relief from the judgment. We reverse the trial court’s order denying Allied Products’ Rule 60(b)(4), Ala. R. Civ. P., motion and remand the case for further proceedings consistent with this opinion.

Allied Products also filed a motion to strike this court’s consideration of the letter brief and the attached exhibit that Thomas filed in the trial court on January 19, 2005. We deny Allied Products’ motion to strike as moot.

MOTION TO STRIKE DENIED; APPLICATION GRANTED; OPINION OF DECEMBER 30, 2005, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

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

      . This case was reassigned to Judge Thompson on July 18, 2006.

      . "Bush Hog, LLC,” refers to itself as "Bush Hog, LLC,” and not "Bush Hog, L.L.C.”

      . It is well established that the substance of a motion and not its nomenclature is controlling; the relief sought in a motion determines how to treat the motion. Ex parte Lang, 500 So.2d 3 (Ala.1986); and Campbell v. Campbell, 718 So.2d 76 (Ala.Civ.App.1998).

      . The record indicates that application for service was made on December 11, 2002, but that service was delivered on December 16, 2002.

      . That order also disposed of Thomas's motion to amend the judgment, thus disposing of all the issues in the case.

      . We note that Rule 4, Ala. R. Civ. P., was amended, effective August 1, 2004. Rule 4(c) was amended to read, in part, as follows:
      "Service of process ... shall be made as follows:

      "(6) ... Upon a domestic or foreign corporation or upon a partnership, limited partnership, limited liability partnership, limited liability company, or unincorporated organization or association, by serving an officer, a partner (other than a limited partner), a managing or general agent, or any agent authorized by appointment or by law to receive service of process.”
      We further note that the Committee Comments to Amendment to Rule 4 effective August 1, 2004, state, in part:
      “Former subdivisions (6) — (9) are combined into a new subdivision (6). The former provision allowing corporations and other business entities to be served by certified mail at any of their usual places of business has been eliminated. Now, personal or certified mail service must be directed to the registered or appointed agent or to a specific person, such as an 'officer.' ”

      . Allied Products argues in the alternative that, applying the factors set forth in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988), the trial court abused its discretion in denying its motion for relief from the judgment. In light of our disposition of this case, it is unnecessary to address that argument.

      . Although the exhibit attached to Thomas's January 19, 2005, letter brief indicates that Allied Products possibly was aware that Thomas had filed a lawsuit against it, there is no evidence in the record indicating that Allied Products received a copy of the summons and complaint. Regardless, this court has held that under former Rule 4 actual knowledge of a lawsuit does not confer personal jurisdiction over a defendant without compliance with Rule 4. Cain v. Cain, 892 So.2d 952, 955 (Ala.Civ.App.2004). We note that the effect of the 2004 amendment to Rule 4 is not before this court.


author: BRYAN, Judge.

text:
    Buster JAMES v. Henry “Butch” BREWSTER.
    2050297.
    Court of Civil Appeals of Alabama.
    Sept. 15, 2006.

      Walter W. Kennedy III, Pell City, for appellant.
    Alan C. Furr of Church, Minor, Abbott, Furr & Davis, P.C., Pell City, for appellee.
   BRYAN, Judge.

The defendant Buster James appeals a judgment insofar as it (1) established the western boundary line of James’s property; and (2) declared that James did not have an easement to use a portion of a concrete driveway on the property of the plaintiff Henry “Butch” Brewster. We affirm in part, reverse in part, and remand.

On June 9, 1997, Hubert Steadman and Carrie Steadman, a married couple, deeded to James a parcel of real property in St. Clair County. James’s property was adjacent to, and generally east of, property the Steadmans retained. Both James’s property and the property the Steadmans retained were located generally north of U.S. Highway 78 (“the highway”). A house, a garage, a concrete driveway, and a fence line were located on the property the Steadmans retained. The house faced the highway. The garage was located to the northeast of the house. The concrete driveway ran northward from the highway along a route that passed the western side of the Steadmans’ house and then turned eastward and ran behind the house to the garage and another building. The fence line began at the eastern boundary of the concrete driveway and ran westward along the southern boundary of the property the Steadmans retained.

The same day they executed the deed to James, the Steadmans executed an amendment of that deed. The amendment stated:

“No portion of the aforementioned 3½ acres [i.e., the property deeded to James] shall come within 15 feet of existing Steadman garage, nor closer than 50 feet from the existing Steadman home, and shall be in a straight line to the existing fence at existing ditch.
“The seller agrees that the existing driveway may be used by both parties (the Grantor and the Grantee). The Grantor additionally grants an easement across the property of the Grantor for a city water line to the Grantee’s property and for a driveway no wider than 15 feet in front of the existing Steadman house to the Grantee’s property.”

James moved a mobile home onto his property and began living there. Later in 1997, Hubert Steadman died. Carrie Steadman died in 1998. Upon the death of Carrie Steadman, Brewster inherited the Steadmans’ property. After he inherited the Steadmans’ property, Brewster placed chert on a route running in front of the house and connecting the existing concrete driveway with James’s property. Thereafter, Brewster objected to James’s using the portion of the concrete driveway that was north of the intersection of the concrete driveway and the chert driveway (“the intersection”). However, he did not object to James’s using the portion of the concrete driveway between the highway and the intersection or the route running in front of the house where Brewster had placed the chert.

James continued to use the portion of the concrete driveway that was north of the intersection, and, on January 29, 2001, Brewster sued James. Brewster alleged that James’s use of the concrete driveway north of the intersection constituted trespass. Answering, James denied that his use of that portion of the concrete driveway constituted trespass.

On August 16, 2005, the case was tried by the trial judge sitting without a jury. The trial judge received evidence ore tenus as well as evidence in the form of documents.

Brewster introduced two surveys. One was prepared for him by registered surveyor S.M. Allen in 2000 (“the 2000 survey”). The other survey was prepared for Brewster by Allen in 2003 (“the 2003 survey”). Allen testified that the 2000 survey showed the boundaries of Brewster’s property based on the deeds of record and the landmarks located on the property. The 2000 survey depicted the boundary line between Brewster’s property and James’s property as running in a generally southeasterly direction from a point on the north line of the Northwest Quarter of the Southwest Quarter of Section 2, Township 17 South, Range 2 East, St. Clair County, Alabama, to a point on the fence line that ran along the southern boundary of Brewster’s property.

Allen testified that he had prepared the 2003 survey to depict a boundary line between Brewster’s property and James’s property that was based on a proposed compromise of the dispute between Brewster and James rather than the evidence regarding the location of the true boundary line.

James introduced a survey that had been prepared for him by registered surveyor Robert Darty (“the Darty survey”) in 2005. Darty testified that his survey showed the boundaries of James’s property according to Darty’s interpretation of James’s deed and the amendment of that deed. James also introduced his deed and the amendment of that deed.

In addition to receiving evidence ore tenus and evidence in the form of documents, the trial court viewed the parties’ properties.

On September 19, 2005, the trial court entered a final judgment. In pertinent part, the judgment stated:

“Upon consideration of the testimony, exhibits and arguments of counsel and the Court having taken judicial knowledge of its file, the Court finds as follows:
“1. Defendant Buster James was conveyed property by that certain deed dated June 9, 1997, which is recorded in Deed Record S9703263S in the Office of the Judge of Probate of St. Clair County, Alabama. Said deed was admitted into evidence as [James’s] Exhibit # 1.
“2. The description contained in said deed is vague and imprecise and is subject to different interpretations.
“3. The Court believes the [Stead-mans] in said deed intended the West boundary line of [James’s] property to be as depicted on the survey by S.M. Allen dated August 10, 2008, which was admitted into evidence as [Brewster’s] Exhibit #2. Said boundary line runs roughly in a Southeasterly direction and extends from the North line of the Northwest Quarter of the Southwest Quarter of Section 2, Township 2 South, Range 2 East to a point on the North right-of-way of old U.S. Highway 78 (also known as Bankhead Highway).
“4. As to [Brewster’s] trespass claims, the Court finds [James] could have reasonably believed that he had an easement across the entire length of the concrete driveway and therefore the Court finds [James] is not guilty of trespass. Furthermore, even if [James] was guilty of trespass, the Court finds that [Brewster] has suffered no damages.
“5. The deed to [James], which was admitted into evidence as [James’s] Exhibit # 1, granted to [James] an easement across [Brewster’s] property for a driveway fifteen (15) feet in width in front of the existing Steadman home to [James’s] property.
“6. The survey by Robert Darty dated April 25, 2005, which was admitted into evidence as [James’s] Exhibit # 5, depicts an area labeled as ‘chert drive.’ This driveway runs East and West, parallel to U.S. Highway 78 and lies between the residence located on [Brewster’s] property and U.S. Highway 78 (Bankhead Highway). The Court finds [James] is entitled to an easement across the existing concrete driveway from the North right-of-way of U.S. Highway Number 78 to the ‘chert drive.’ [James] is also entitled to an easement across the ‘chert drive’ fifteen (15) feet in width, which [James] may pave or otherwise improve at his sole cost and expense.
7. The Court finds [James] does not have an easement across the remainder of the concrete driveway which runs past the residence on [Brewster’s] property. It is therefore CONSIDERED, ORDERED AND ADJUDGED as follows:
“1. The documents which were admitted into evidence at the trial of this matter are referred to as if fully set forth herein.
“2. The West boundary line of [James’s] property is judicially established as depicted on [Brewster’s] Exhibit # 2, the Allen survey dated August 10, 2003.
“3. As to [Brewster’s] trespass claims, judgment is entered for [James] and against [Brewster].
“4. [James] is entitled to an easement across the existing concrete driveway from the North right-of-way of U.S. Highway Number 78 to the ‘chert drive’ area depicted on [James’s] Exhibit # 5, the survey by Robert Darty dated April 25, 2005. [James] is also entitled to an easement across the ‘chert drive,’ said easement being 15' in width which is to extend 7½' North and South from the centerline of the ‘chert drive’ area on said survey. [James] may pave or otherwise improve the easement as he sees fit, at his sole cost and expense.
“5. [James] is ordered to cease using the remainder of the concrete driveway beyond the area described in paragraph 5 [sic] above.”

(Emphasis added.)

James moved the trial court to alter, amend, or vacate the judgment; however, the trial court denied that motion. James then appealed to the supreme court. Brewster did not cross-appeal. The supreme court, pursuant to § 12-2-7(6), Ala. Code 1975, transferred James’s appeal to this court.

On appeal, James first argues that the trial court erred by judicially establishing the boundary line between the parties’ properties in the absence of a claim seeking such relief in Brewster’s complaint. However, the record reflects that James’s .own counsel represented to the trial court at trial that the location of the boundary line was an issue in the case. A party may not induce error by the trial court and then later win a reversal on the basis of that error. Neal v. Neal, 856 So.2d 766, 784 (Ala.2002) (“A party cannot win a reversal on an error that party has invited the trial court to commit.”); Atkins v. Lee, 603 So.2d 937, 945 (Ala.1992) (“A party may not predicate an argument for reversal on ‘invited error,’ that is, ‘error into which he has led or lulled the trial court.’ Dixie Highway Express, Inc. v. Southern Ry., 286 Ala. 646, 651, 244 So.2d 591, 595 (1971); see also State Farm Mutual Automobile Ins. Co. v. Humphres, 293 Ala. 413, 418, 304 So.2d 573, 577 (1974).”). Accordingly, James’s first argument has no merit.

James also argues that the trial court erred in finding that the boundary line was located where it is depicted on the 2003 survey because, James says, the evidence does not support that finding. First, James argues that that finding is not supported by the evidence because Brewster did not introduce deeds establishing his title to the property he claimed to own. However, Brewster testified that he inherited the property depicted on the 2000 survey from Carrie Steadman. James has not cited to us any legal authority for the proposition that Brewster’s testimony alone was insufficient to establish his title to the property he claimed.

“Rule 28(a)(10), Ala. R.App. P., requires that arguments in an appellant’s brief contain ‘citations to the cases, statutes, other authorities, and parts of the record relied on.’ ... [I]t is well settled that a failure to comply with the requirements of Rule 28(a)(10) requiring citation of authority in support of the arguments presented provides this Court with a basis for disregarding those arguments. Ex parte Showers, 812 So.2d 277, 281 (Ala.2001).”

State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala.2005).

James next argues that the trial court’s finding that the Steadmans intended the boundary line to be the one depicted on the 2003 survey was unsupported by the evidence. James argues that the 2003 survey depicted a compromise boundary line rather than the true boundary line as established by the evidence.

In Todd v. Owens, 592 So.2d 534 (Ala.1991), the supreme court stated the law that governs our review of this issue:

“ ‘ “[A] judgment establishing a boundary line between coterminous landowners on evidence submitted ore tenus is presumed to be correct and need only be supported by credible evidence. If so supported, the trial court’s conclusions will not be disturbed on appeal unless plainly erroneous or manifestly unjust.” Tidwell v. Strickler, 457 So.2d 365, 367 (Ala.1984) (citations omitted).’
“Garringer v. Wingard, 585 So.2d 898, 899 (Ala.1991). The presumption of correctness is especially strong in boundary line dispute cases because it is difficult for the appellate court to review the evidence in such cases. Bearden v. Ellison, 560 So.2d 1042 (Ala.1990). Moreover, the presumption is further enhanced if the trial court personally views the property in dispute, as was done here. Bell v. Jackson, 530 So.2d 42 (Ala.1988); Wallace v. Putman, 495 So.2d 1072, 1075 (Ala.1986) ”

592 So.2d at 535.

In Catrett v. Crane, 295 Ala. 337, 329 So.2d 536 (1976), the trial court had created a totally new boundary line equidistant between the two disputed survey lines. On appeal, the supreme court reversed, holding that there was no evidence to support the line fixed by the trial court. 295 Ala. at 338, 329 So.2d 536.

On the other hand, in Todd v. Owens, supra, the trial court found in favor of the Owenses in a boundary-line dispute. However, instead of fixing the boundary line entirely where the Owenses’ evidence established that the true boundary line was located, the trial court fixed one portion of it where the Owenses’ evidence established that it was located and fixed another portion of it where Todd’s evidence established that it was located. Todd appealed, but the Owenses did not cross-appeal. The supreme court explained and held:

“After a careful review of the evidence in this case, we find it clear that the trial court tried to effect a compromise. Todd argues that such a compromise effectually fixes the boundary line at neither of the points supported by the evidence, and that such a compromise is cause for reversal, citing Catrett v. Crane, 295 Ala. 337, 329 So.2d 536 (1976). In Catrett, the trial court created a totally new boundary line equidistant between the two disputed survey lines; this. Court reversed, holding that there was no evidence to support the line fixed by the trial court. Id. at 338, 329 So.2d 536. However, this is not what we have in the case before us.
“In this case the trial court found that the evidence supported a finding that for approximately one-half of the line the old fence line was the boundary, and for approximately the second half of the line the court determined that the deed line was the true boundary. Neither party claims that the line fixed is, in its entirety, the true line; however, if any error has occurred in this case, it prejudices only the Owenses, and they did not appeal.
“Having reviewed the evidence in this case, we conclude that the record contains credible evidence to support the trial court’s finding as to that portion of the boundary line involved in this appeal; therefore, the judgment of the trial court is due to be affirmed.”

592 So.2d at 535-36.

In the case now before us, it appears that at least a portion, if not all, of the boundary line depicted in the 2003 survey was a proposed compromise that was not based on evidence of the actual location of the boundary line. Therefore, the holding in Todd v. Owens is not applicable in the case now before us, and on the authority of the holding in Catrett v. Crane, we must reverse the trial court’s judgment insofar as it fixes the location of the boundary line.

James also argues that the trial court erred in holding that he did not have the right to use the portion of the concrete driveway located north of the intersection. James argues that the Steadmans granted him an easement to use the entire concrete driveway in the amendment of his deed. The trial court apparently found that the language of the amendment conferred upon James only a license to use the concrete driveway instead of an easement and that Brewster, the Steadmans’ successor in title, had revoked that license with respect to the portion of the concrete driveway lying north of the intersection. In determining whether an instrument creates an easement or a mere license, the intent of the parties to the instrument is the critical factor to consider. See Boyce v. Cassese, supra. With regard to James’s use of the concrete driveway, the amendment merely states, “The seller agrees that the existing driveway may be used by both parties (the Grantor and the Grantee).” Thus, the amendment neither characterizes James’s use of the concrete driveway as an easement nor uses the traditional language used to convey an interest in real property. The language is more consistent with a grant of permission to use the concrete driveway than a grant of an interest in real property.

On the other hand, the amendment expressly grants James an easement for a driveway in front of the Steadmans’ house:

“The Grantor additionally grants an easement across the property of the Grantor for a city water line to the Grantee’s property and for a driveway no wider than 15 feet in front of the existing Steadman house to the Grantee’s property.”

(Emphasis added.)

Given the language of the amendment, we find no error in the trial court’s implicit findings that the Steadmans intended James’s right to use the concrete driveway to be only a license rather than an easement and that Brewster had revoked that license with respect to the portion of the driveway lying north of the intersection. Cf. Boyce v. Cassese.

We reverse the judgment of the trial court insofar as it held that the 2003 survey depicted the location of the boundary line between the parties’ properties. In all other respects, we affirm the judgment of the trial court. Finally, we remand the case to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

MURDOCK, J., concurs in the result, without writing.

      . Merriam-Webster’s Collegiate Dictionary 212 (11th ed.2003), defines chert as "a rock resembling flint....”

      . In Boyce v. Cassese, 941 So.2d 932 (Ala. 2006), the supreme court quoted Jon W. Bruce & James N. Ely, Jr., The Law of Easements and Licenses in Land (West Group 2001), as follows regarding the difference between a license and an easement:
      "'§ 1:4 — Fundamental difference

      " 'A license is often defined as permission to do an act or a series of acts on another’s land that, absent authorization, would constitute trespass. Because permission is the voluntary grant of a personal privilege, the landowner may usually revoke consent at any time and thereby terminate the license. Given their revocable nature, licenses generally are not considered to reach the status of interests in land. In contrast, easements are irrevocable interests in land of potentially perpetual duration.’ ”


author: PITTMAN, Judge.

text:
    Reyna M. RODRIGUEZ v. Jose A. RODRIGUEZ, Jr.
    2050114.
    Court of Civil Appeals of Alabama.
    Sept. 22, 2006.

      Bill G. Hall and D. Milburn Gross, Jr., of Abies, Baxter, Parker & Hall, P.C., Huntsville, for appellant.
    Clement J. Cartron, Huntsville, for ap-pellee.
   PITTMAN, Judge.

Reyna M. Rodriguez (“the former wife”) appeals from an order that was issued after the entry of a judgment in a post-divorce modification proceeding. We dismiss the appeal ex mero motu based upon a lack of appellate jurisdiction.

This case has a complicated procedural history. The record indicates that the Madison Circuit Court entered a judgment divorcing the former wife and Jose A. Rodriguez, Jr. (“the former husband”), in 1998. The divorce judgment incorporated a settlement agreement signed by the parties that provided, among other things, that the former wife would receive an award of periodic ■ alimony in the amount of $2,110 per month and that, as a part of the property division, the former husband would receive all right, title, and interest in a parcel of commercial business property that had served as the offices for the former husband’s hospital-equipment business.

The case-action summary does not indicate the motions that may have been filed by either party in this case during the four years following the divorce; however, the record indicates that the former wife filed a petition for a finding of contempt against the former husband, averring that he should be found in contempt of court for, among other things, failing to pay an outstanding alimony arrearage, failing to pay monthly periodic-alimony payments, and failing to keep the commercial business property listed with a real-estate agent. On November 23, 2004, after holding a hearing, the trial court entered a judgment that, among other things, determined the former husband’s alimony arrearage to be $63,500 but reduced the former husband’s prospective alimony obligation. The trial court’s judgment also directed the former husband to execute a statutory warranty deed to the former wife conveying any and all interest that he might have in the commercial business property. The judgment further provided that if the former husband was unable to execute the deed, he was to assign all right, title, and interest in the commercial business property to the former wife so that the commercial business property could be sold and the net proceeds from the sale could be applied toward the former husband’s alimony ar-rearage.

On December 21, 2004, the former husband filed a postjudgment motion requesting that the trial court clarify its November 23, 2004, judgment. The next day, the former wife filed a motion to alter, amend, or vacate the November 2004 judgment pursuant to Rule 59(e), Ala. R. Civ. P., requesting that the trial court revisit its alimony-arrearage calculation, clarify certain provisions in the judgment, and amend the judgment to direct the former husband to pay certain outstanding credit obligations. On January 7, 2005, the former wife filed a motion objecting to the transfer of the commercial business property to the former wife.

On January 28, 2005, after holding a hearing, the trial court amended its judgment. In that amended judgment, the trial court found that the former husband had not paid certain credit-card debts that he had been obligated to pay in the original divorce judgment. Although the trial entered a judgment in favor of the former wife against the former husband in the amount of $19,592.73 as to those debts and ordered that execution of the judgment as to those debts should issue, the trial court’s amended judgment denied the former wife’s postjudgment motion in all other respects. No appeal was taken from the trial court’s amended judgment.

On April 14, 2005, a “certificate of judgment” was issued against the former husband. Twelve days later, a writ of execution was issued. That same day, the former husband filed a notice of right to claim exemption and a claim of exemption. The former wife subsequently filed a motion objecting to the former husband’s claim of exemption.

On July 7, 2005, the former husband filed a motion for relief from the trial court’s January 2005 amended judgment, asserting that neither he nor his counsel had received a copy of the January 2005 amended judgment granting in part and denying in part the former wife’s post-judgment motion and that the former husband had no knowledge that the trial court had entered a civil judgment against him in the amount of $19,592.73 until he was served with a “notice of levy” by a sheriffs deputy. In that motion, the former husband asserted that he had been prejudiced by the trial court’s “oversight” in allegedly failing to send a copy of its amended judgment because he had been unable to timely seek an appeal from the trial. court’s amended judgment. The former husband requested that the trial court make the “record date of rendering of the [ojrder speak the truth by altering or changing the date from the 28th day of January 2005, to a date that would reasonably provide [the former husband] with opportunity to appeal the trial court’s [o]rder.”

After holding a hearing, the trial court entered an order on September 21, 2005, determining the former husband’s entitlement to certain exemptions. That order purported to amend the January 28, 2005, amended judgment:

“That brings the issue of the motion for relief from judgment as filed by [the former husband] before the Court, which the Court determined should be granted. [The former husband’s attorney] expressly appeared before the Court in the hearing that resulted in the entry of the order by the Court on January 28, 2005, but he also did not receive distribution of any copy of the order as required by the Rules of Civil Procedure. It is conceivable that the [former husband] was not aware of the judgment having been entered, therefore he was prohibited from being permitted to file any appeal or motion before the Court to stay execution of the order entered by the Court on January 28th. Therefore, the Court hereby amends the Order of January 28, 2005[,] and causes the re-issuance of same such that the Order of that judgment shall now be considered to be entered as of the 21st day of September, 2005.”

The former wife filed a notice of appeal on November 2, 2005. Her appeal challenges those aspects of the trial court’s November 28, 2004, judgment, as amended by its January 28, 2005, amended judgment, requiring transfer of the commercial business property to the former wife and calculating the former husband’s alimony arrearage.

Based upon a review of the record and the pertinent provisions of law, we conclude that this court does not have jurisdiction to hear this appeal. “[J]uris-dictional matters are of such magnitude that [an appellate court will] take notice of them at any time and [will] do so even ex mero motu.” Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987); see also Rule 2(a)(1), Ala. R.App. P. (providing that an appeal shall be dismissed if the notice of appeal is not timely filed to invoke the jurisdiction of the appellate court).

Rule 4(a)(1), Ala. R.App. P., provides (with limited exceptions not pertinent to this case) that a party desiring to appeal to an appellate court must file his or her notice of appeal within 42 days of the date of the entry of the judgment. Although Rule 4(a)(3), Ala. R.App. P., provides that the filing of a postjudgment motion under Rule 59, Ala. R. Civ. P., will suspend the time for filing a notice of appeal, “the full time fixed for filing a notice of appeal shall be computed from the date of the entry in the civil docket of an order granting or denying such motion.” In this case, the trial court rendered an order denying, in pertinent part, the former wife’s postjudgment motion on January 28, 2005, and it entered that order on the civil docket. Thus, the 42-day period for filing a notice of appeal from the trial court’s amended judgment expired on March 11, 2005. Because the former wife’s notice of appeal was not filed until November 2, 2005, it is untimely.

Although the trial court purported to grant the former husband’s motion for relief from its amended judgment on September 21, 2005, based upon a lack of notice of the entry of that court’s January 28, 2005, amended judgment granting in part and denying in part the former wife’s postjudgment motion, the language of the former husband’s motion demonstrates that it was, in substance, an untimely motion seeking relief available under Rule 77(d), Ala. R. Civ. P., which “exclusively governs situations in which a party claims lack of notice of the entry of a judgment or order.” Hopper v. Sims, 777 So.2d 122, 125 (Ala.Civ.App.2000).

Rule 77(d), Ala. R. Civ. P., provides, in pertinent part, as follows:

“Lack of notice of the entry [of an order or judgment] by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except that upon a showing of excusable neglect based on a failure of the party to learn of the entry of the judgment or order the circuit court in any action may extend the time for appeal not exceeding thirty (30) days from the expiration of the original time now provided for appeals in civil actions.”

Thus, the trial court lost jurisdiction to grant the former husband’s motion 72 days after the January 2005 order amending its November 2004 judgment had been entered the 42 days permitted under Rule 4, Ala. R.App. P., plus the 30 days specified in Rule 77(d)), i.e., on April 11, 2005. To the extent that the trial court purported to “reissue” its amended judgment so as to restart the time period for appealing from that judgment, the trial court’s September 21, 2005, order is a nullity.

In summary, the former wife’s notice of appeal was filed more than 42 days after the trial court had entered its amended judgment granting in part and denying in part the former wife’s postjudgment motion. Consequently, the November 2, 2005, notice of appeal is untimely as a matter of law, and this court must dismiss the appeal based upon the absence of appellate jurisdiction. Rule 2(a)(1), Ala. R.App. P. The trial court is directed to vacate that portion of its September 21, 2005, order quoted above.

APPEAL DISMISSED WITH INSTRUCTIONS TO THE CIRCUIT COURT.

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

MURDOCK, J., concurs in the result, without writing.

      . That motion is most properly cognizable as an amendment to the former wife's previously-filed postjudgment motion; such an amendment may be permitted by a trial court within its discretion. See City of Rainsville v. State Farm Mut. Auto. Ins. Co., 716 So.2d 710, 711 (Ala.Civ.App.1998).

      . The 72d day following January 28, 2005, was April 10, 2005. April 10, 2005, was a Sunday; therefore, the notice of appeal would have had to have been filed by April 11, 2005. See Rule 26, Ala. R.App. P., and Rule 6, Ala. R. Civ. P.


author: McMILLAN, Presiding Judge.

text:
    S.T.E. v. STATE.
    CR-04-2298.
    Court of Criminal Appeals of Alabama.
    April 28, 2006.

      Robert G. Poole and Davis B. Whittel-sey, Opelika, for appellant.

      Troy King, atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

S.T.E. was indicted for unlawful possession of marijuana in the first degree, a violation of § 13A-12-213, Ala.Code 1975. The trial court granted his motion to be treated as a youthful offender under the Youthful Offender Act. After reserving the right to challenge the legality of the search and seizure on appeal, S.T.E. entered a plea of guilty. The trial court sentenced him to 3 years in the custody of the Department of Corrections and ordered him to perform 100 hours of community service. The court also ordered him to pay a $1,000.00 as a Drug Demand Reduction Act assessment, $100.00 for deposit in the Alabama Forensic Services Trust Fund, $50 to the Crime Victims Compensation Fund and court costs.

At the suppression hearing, Officer Russell Hayes of the Auburn Police Department, testified that on June 21, 2004, he responded to a call at the Summer Brooke Apartments. After he had resolved the problem for which he had been called, the manager informed him of an additional situation that involved possible animal cruelty or neglect. The manager told Hayes that a dog belonging to S.T.E. had been left unattended for long periods. He also showed Hayes photographs of S.T.E.’s apartment, which showed animal feces all over the floor. Hayes contacted Krista Weldon, Auburn’s animal control officer, and asked her to report to the scene. The two of them then went to S.T.E.’s apartment. S.T.E. opened the door, and the dog escaped. After S.T.E. returned with the animal, Hayes asked if he would allow them to “look at the dog and look at his surroundings, its food and water and everything, and check — just check on the general welfare of the animal.” S.T.E. then allowed the officers to come inside the apartment.

Officer Weldon testified that she checked for rabies tags and city licenses; the dog had none and she issued a citation or warning to S.T.E. Officer Hayes said that he found no sign of feces in the apartment and that the dog appeared to be healthy. Hayes told S.T.E. that they would like “to look at the dog’s food and water and where it lived at [sic] because those are three things that you are required to provide; is [sic] shelter, water, and food.” S.T.E. walked to the bathroom, which was in the back area of the apartment and pulled out some dog-food bowls and a large bag of dog food. He then set the dog food in front of the bathroom door. Officer Hayes pointed to the back of the apartment and asked if he “could look around in those areas,” and S.T.E. “did say that it was fine.” Hayes entered the bedroom and inspected the dog’s bed, which appeared to be in acceptable condition. He then walked from the bedroom into the bathroom to check the items S.T.E. had left outside the bathroom door. When he entered the bathroom, Hayes saw a small bag of Purina brand Puppy Chow sitting on the counter. He looked inside the bag “to check the condition of the food, to make sure it was what I would consider to be [acceptable] for a dog; edible; not moldy or old or anything of that nature.” Inside the bag, Hayes found a large bag containing what appeared to be marijuana. He stepped out of the bathroom and called additional officers, including a narcotics officer, to assist at the scene.

I.

S.T.E. contends that Officer Hayes’s search exceeded the scope of his consent. He argues that Hayes asked to see the dog’s “food and water and where it lived,” and he showed him the dog’s food and the dog’s food and water bowls. Hayes then asked to see where the dog slept and found the bed to be in acceptable condition. At that point, S.T.E. says, the scope of his consent had been met and the search should have ended. He argues that Hayes should not have entered the bathroom or opened the closed bag of Puppy Chow because, he says, the animal Hayes was checking on was a dog, not a puppy, and he had already produced a bag of dog food in response to the officers’ request to see the animal’s food.

“ ‘The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of objective reasonableness — -what would the typical reasonable person have understood by the exchange between the officer and the suspect?’ Generally, a general consent to search an area ... permits the police to open closed but unlocked containers found in the place as to which consent was given, especially if the police have told the suspect what they are searching for and that object might be concealed in the closed container.”

Tillman v. State, 647 So.2d 7, 10 (Ala.Crim.App.1994) (citations omitted).

Here, S.T.E. had expressly consented to an examination of his dog’s food. Therefore, Officer Hayes could reasonably believe that he was allowed to examine a bag of Puppy Chow sitting in plain view. S.T.E. argues that the dog was not a puppy, but he has offered no evidence regarding the size or age of the dog. Furthermore, S.T.E. gave express consent for the officers to examine both his dog’s “surroundings” and the “back areas” of his apartment. The bathroom was in the back part of the apartment, and the door from the adjacent bedroom was open and could have been entered by the dog. Therefore, it was reasonable for Officer Hayes to conclude that under the consent given he could examine the bathroom and the bag of Puppy Chow.

II.

S.T.E. has not challenged the sentence imposed on him by the -trial court. However, “[m]atters concerning unauthorized sentences are jurisdictional and, therefore, can be reviewed even if they have not been preserved.” Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994). The trial court permitted S.T.E. to be treated as a youthful offender under the Youthful Offender Act. “The Youthful Offender Act is intended to extricate persons below twenty-one years of age from the harshness of criminal prosecution and conviction.” Ex parte Raines, 294 Ala. 360, 363, 317 So.2d 559, 561 (1975). “An adjudication of youthful offender status is very different from conviction as an adult because it is not deemed a conviction of crime at all.” Gordon v. Nagle, 647 So.2d 91, 95 (Ala.1994).

Section 13A-12-281(a), Ala.Code 1975, a part of the Demand Reduction Assessment Act, imposes an additional penalty of $1,000 for first offenders and $2,000 for second and subsequent offenders on “every person convicted of, or adjudicated delinquent for,” certain drug offenses, including the offense set out in § 13A-12-213. Section 36-18-7(a), Ala.Code 1975, the Alabama Forensic Services Trust Fund statute, imposes an additional fee of $100 on “any conviction in any court of the state for drug possession, drug sale, drug trafficking, and drug paraphernalia offense as defined in Sections 13A-12-211 to 13A-12-260, inclusive.” Neither statute explicitly states that the penalty or fee is to be imposed on youthful offenders or on adjudications under the Youthful Offender Act.

“ ‘[Penal] statutes are to reach no further in meaning than their words.’ ” Fuller v. State, 257 Ala. 502, 505, 60 So.2d 202, 205 (1952). “‘“No person is to be made subject to [penal statutes] by implication, and all doubts concerning their interpretation are to predominate in favor of the accused.” ’ ” Fuller, 257 Ala. at 505, 60 So.2d at 205 (quoting Scott v. State, 152 Ala. 63, 64, 44 So. 544, 545 (1906) (quoting in turn Bishop on Statutory Crimes § 194)). In Sheffield v. State, 708 So.2d 899 (Ala.Crim.App.1997), this court addressed the statutory mandate of § 13A-1-6, Ala.Code 1975, which requires all provisions of the Alabama Criminal Code to be construed “according to the fair import of their terms to promote justice and to effect the objects of the law We stated:

“The focus in § 13A-1-6 on the ‘fair import of [a penal statute’s] terms’ is the legislature’s manifestation of its ‘preference for the meaning of the statute over legislative intent as a criterion of interpretation.’ ‘The reference to a “meaning of the statute” which is juxtaposed with and therefore distinct from legislative “intention,” expresses concern for giving effect to the way in which the statute is understood by others than the members of the legislature itself.’ ‘[I]n-quiry begins not with conjecture about what [the legislature] would have liked to have said when it wrote the statute or with what [the legislature] would say today given the chance, but rather what [the legislature] indeed expressed in the statutory context.’ ”

701 So.2d at 905 (citations omitted).

Because § 13A-12-281 and § 36-18-7 do not explicitly apply to youthful offenders, the trial court should not have imposed either penalty on S.T.E. For the foregoing reasons, we affirm S.T.E.⅛ adjudication of guilt and youthful-offender adjudication and remand this cause for the trial court to vacate the $1,000 assessment imposed pursuant to the Drug Demand Reduction Act and the $100 fee imposed for deposit to the Alabama Forensic Services Trust Fund. Due return should be filed in this court no later than 42 day from the date of this opinion.

AFFIRMED IN PART AND REMANDED WITH DIRECTIONS.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . We note that in 1995, the legislature addressed a similar omission from § 15-23-17, which permits the assessment of additional costs and penalties under the Alabama Crime Victims Compensation Act, by amending the statute to add the appropriate language. Similar clarifications could be made by the legislature with regard to the drug-demand-reduction assessment and the forensic-services fee.

       Note from the reporter of decisions: On August 11, 2006, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On August 25, 2006, that court denied rehearing, without opinion. On October 13, 2006, the Supreme Court denied certiorari review, without opinion (1051727).


text:
    Carnell Joseph EDMOND v. STATE of Alabama.
    CR-04-2392.
    Court of Criminal Appeals of Alabama.
    April 28, 2006.

      Carnell Joseph Edmond, pro se.
    Troy King, atty. gen., and Nancy M. Kirby, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

The appellant, Carnell Joseph Edmond, appeals from the summary denial of his Rule 32, Ala. R.Crim. P., postconviction petition challenging his 1995 guilty-plea conviction for second-degree receiving stolen property and the resulting sentence of three years in the penitentiary; that sentence was suspended and Edmond was ordered to serve three years on probation. Edmond did not appeal that conviction.

On appeal, Edmond raises the following claims:

1) That the Constitution of the United States or of the State of Alabama requires a new trial, a new sentence proceeding, or other relief.
2) That judgment was obtained by plea of guilty which was unlawfully induced or not made voluntarily with the understanding of the nature of charge and the judgment of said charge.
3) That his conviction was obtained by the unconstitutional failure of the prosecution to disclose to Edmond evidence favorable to him.
4) That the court was without jurisdiction to render the judgment or to impose the sentence.
5) That the sentence imposed exceeds the maximum authorized by law.
6) That newly discovered material facts exist that require that the conviction and sentence be vacated.
7) That Edmond failed to appeal within the prescribed time and that failure was without fault on his part.
8) That Edmond’s conviction was the result of ineffective assistance of counsel at the guilty plea hearing and at sentencing.
9) That Edmond’s Rule 32 petition was denied by the trial court without ruling or adjudication on or upon each of the merits raised in his petition.

The circuit court’s order denying Edmond’s Rule 32 petition reads in relevant part:

“3. The Court having read [Edmond’s] petition and having considered the State of Alabama’s response thereto, and taking judicial notice of its files, case action summaries, and indictments, makes the following findings of fact:
“a) [Edmond] raises no new issues that could not have been raised on direct appeal.
“b) [Edmond] raises no newly discovered facts or issues which would toll the statute of limitations contained in Rule 32.2(c).
“c) [Edmond] raises no valid issues that would preclude this Court from having jurisdiction to impose the sentence listed above. The sentence does not exceed the maximum allowed by law.
“d) [Edmond] raises no other issues in his petition for which relief can be granted. Rule 32.7(d).”

Because Edmond’s Rule 32 petition was filed outside the statutory period of limitations provided in Rule 32.2(c), the only claims that can be considered are those that are jurisdictional. The only jurisdictional claims he raises are claims 4, 5, and 6 above.

Claims 6, alleging newly discovered evidence, is without merit/ Edmond claims that he was recently made aware by his “inmate para-legal” that he was illegally and unconstitutionally convicted and sentenced. Clearly, this allegation does not meet any requirement of newly discovered evidence. See Banks v. State, 845 So.2d 9, 16 (Ala.Crim.App.2002).

Claims 4 and 5 allege that the trial court lacked jurisdiction to accept the appellant’s guilty plea and that his sentence exceeds the maximum authorized by law. Edmond argues that although he was indicted for first-degree theft, the trial court incorrectly allowed him to plead guilty to receiving stolen property in the second degree. Because receiving stolen property in the second degree is not a lesser-included offense of first-degree theft, see McMillian v. State, 905 So.2d 862 (Ala.Crim.App.2005), this cause must be remanded for the circuit court to determine whether Edmond’s allegation is true. The return to remand to this court shall contain a copy of the indictment along with any proceedings conducted by the trial court and shall be filed within 56 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . Edmond is currently serving a life sentence on another conviction.

       Note from the reporter of decisions: On August 18, 2006, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On September 8, 2006, that court denied rehearing, without opinion. On October 13, 2006, the Supreme Court denied certiora-ri review, without opinion (1051808).