author: CRAWLEY, Presiding Judge. CRAWLEY, Presiding Judge. BRYAN, Judge, MURDOCK, Judge,

text:
    Henry Courtney LUMPKIN and Myrtice Inez Lumpkin v. CITY OF GULF SHORES.
    2050634.
    Court of Civil Appeals of Alabama.
    Nov. 17, 2006.
    Opinion Overruling Application for Rehearing Jan. 12, 2007.
    Certiorari Denied April 13, 2007 Alabama Supreme Court 1060650.

      J. Gullatte Hunter III of Robertson & Hunter, P.C., Mobile, for appellant.
    J. David Whetstone and R. Scott He-trick of Adams & Reese, LLP, Mobile, for appellee.
   CRAWLEY, Presiding Judge.

Henry Courtney Lumpkin and Myrtice Inez Lumpkin owned beach-front property within the territorial limits of the City of Gulf Shores (“the City”). In May 2000, the Lumpkins incorporated Sand Crab Owners Association, Inc. (“the Association”), and submitted to the condominium form of ownership as outlined in the Alabama Uniform Condominium Act of 1991 (“the AUCA”), codified at Ala.Code 1975, § 35-8A-101 et seq. In April 2005, the City sought to condemn an easement over the property in order to establish and maintain a beach-conservation project. The City filed the necessary application in the probate court, naming as defendants the Lumpkins individually and the Association. The probate court condemned the easement, and the appointed commissioners assessed no damages as a result of the taking.

The Lumpkins appealed the probate court’s condemnation order to the circuit court. In October 2005, the City filed a motion to dismiss the Lumpkins’ appeal on the ground that they were not the real parties in interest. The City attached the declaration of condominium, the certificate of existence, and the articles of incorporation of the Association to its motion. Because the trial court did not exclude from its consideration those materials in ruling on the City’s motion, that motion was automatically converted to a motion for a summary judgment pursuant to Rule 12(b), Ala. R. Civ. P. See Wesson v. McCleave, Roberts, Shields & Green, P.C., 810 So.2d 652 (Ala.2001). The Lumpkins did not file a written response to the City’s motion. After a January 10, 2006, hearing on the motion, on January 11, 2006, the circuit court dismissed the Lumpkins’ appeal. The Lumpkins appealed the dismissal of their appeal to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

As noted above, the City argued that the Lumpkins were not the real parties in interest and should not be permitted to prosecute the appeal from the condemnation order. Rule 17(a), Ala. R. Civ. P., requires that “[ejvery action ... be prosecuted in the name of the real party in interest.” “ ‘[T]he real party in interest principle is a means to identity the person who possesses the right sought to be enforced. Therefore, the term directs attention to whether plaintiff has a significant interest in the particular action he has instituted.’ ” Dennis v. Magic City Dodge, Inc., 524 So.2d 616, 618 (Ala.1988) (quoting 6 C. Wright & A. Miller, Federal Practice & Procedure § 1542 (1971)). The City argued that the Association was the real party in interest because, under the declaration of condominium, the “common elements” of the condominium complex are owned by the Association and include “all portions of the condominium other than the Units” and encompass “all of the land” and because, under the AUCA, the Association has the power to grant easements through the common elements of the condominium complex. See Ala.Code 1975, § 35-8A-302(9). In addition, the City asserted, the Association, and not the Lump-kins as individuals, had the right under the AUCA and the declaration of condominium to any compensation awarded as a result of an eminent-domain proceeding in which a part of the common elements of the condominium complex are acquired. See Ala.Code 1975, § 35-8A-107(c). Thus, the City urges us to conclude that the Association, and not the Lumpkins, is the party aggrieved by the condemnation order and the failure of the commissioners to award any compensation.

We review a summary judgment de novo. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the non-movant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[SJubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d).

The Lumpkins first argue that “if the trial court’s rationale for dismissing the Lumpkins’ appeal was that [the Association] instead of the Lumpkins was the real party in interest, then [the Association] should be joined or substituted to prevent what is at present a gross miscarriage of justice.” Indeed, Rule 17(a) states that “[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest.” See also Dennis, 524 So.2d at 619 (“However, if [the plaintiff] was not the real party in interest, summary judgment should not have been granted based upon this ground until she had had an opportunity to substitute ... the real party in interest.”). The City’s motion arguing that the Association was the real party in interest was filed in October 2005, more than two months before the circuit court granted the motion. The Lumpkins did nothing in those two months to substitute the Association as the appellant or to join the Association as an additional appellant despite the clear objection by the City regarding the Lump-kins’ status as proper parties to prosecute the appeal. Thus, we do not agree that the summary judgment in favor of the City should be reversed in order to give the Lumpkins further opportunity to add or to substitute the Association as an appellant.

The Lumpkins further argue that the City named them as defendants in the original condemnation action and therefore that the City should now be es-topped from asserting that they are not real parties in interest. The Lumpkins rely upon the following statement of the law in Carver v. Foster, 928 So.2d 1017, 1027-28 (Ala.2005):

“‘[T]he doctrine of judicial estoppel “applies to preclude a party from assuming a position in a legal proceeding inconsistent with one previously asserted.” ’ Selma Foundry & Supply Co. v. Peoples Bank & Trust Co., 598 So.2d 844, 846 (Ala.1992) (quoting Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419 (3d Cir.1988)). ‘The law is settled in Alabama that a party who has, with knowledge of the facts, assumed a particular position in a judicial proceeding is estopped from assuming a position inconsistent to the first one to the prejudice of an adverse party.’ Russell v. Russell, 404 So.2d 662, 665 (Ala.1981).”

The City, the Lumpkins argue, asserted in the condemnation application that the Lumpkins had an ownership interest in the property over which the proposed easement was to run. Based on this statement, the Lumpkins assert that the City has taken the position that the Lumpkins are, in fact, real parties in interest.

The City argues, however, that the Lumpkins are confusing the concepts of “real party in interest” under Rule 17(a) and “necessary parties” under Rule 19, Ala. R. Civ. P. Rule 19 reads, in part:

“(a) Persons to Be Joined if Feasible. A person who is subject to jurisdiction of the court shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.”

According to the City, it chose to join the Lumpkins as defendants in the condemnation action because it believed that they might have been viewed as necessary parties to the action by virtue of their interest in the Association and the property. Joining them as defendants whose rights in the property might not be adequately protected by the Association, the City explains, is not tantamount to declaring that the Lumpkins are the real parties in interest in the condemnation action. We agree with the City.

If the Lumpkins were considered necessary parties to the condemnation action and were not joined, the City’s failure to join them would have been a jurisdictional defect. Burnett v. Munoz, 853 So.2d 963 (Ala.Civ.App.2002). The City’s decision to join them does not indicate that the Lump-kins “ ‘possessefd] the right sought to be enforced,’ ” Dennis, 524 So.2d at 618 (quoting 6 C. Wright & A. Miller, Federal Practice & Procedure § 1542 (1971)), which in the present case is the right to avoid the condemnation of an easement by eminent domain or to have appropriate compensation assessed for the easement condemned by the City. The City simply chose to join the Lumpkins to prevent any issues regarding the possibilities of the Lumpkins’ rights not being adequately protected or of inconsistent obligations arising. See Ex parte Reliance Insurance Co., 380 So.2d 266, 270 (Ala.1980) (requiring joinder of a lessee who was the named beneficiary of an insurance policy despite the lessee’s disclaiming any interest in the proceeds of the policy so as to protect the insurer and others from the risk of incurring inconsistent obligations). Accordingly,' the City has not assumed inconsistent positions with regard to the status of the Lumpkins, and it should not be judicially estopped from arguing that the Lumpkins are not real parties in interest.

Accordingly, we affirm the summary judgment entered in favor of the City, which effectively dismissed the Lumpkins’ appeal from the probate court’s condemnation order.

AFFIRMED.

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

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

On Application for Rehearing

CRAWLEY, Presiding Judge.

APPLICATION OVERRULED.

THOMPSON and PITTMAN, JJ., concur.

BRYAN, J., concurs specially, with writing.

MURDOCK, J., dissents, with writing.

BRYAN, Judge,

concurring specially.

I concur in overruling the appellant’s application for rehearing in this case. I write separately to note that, although I concurred in the affirmance opinion on original submission, upon further review of the briefs and the record in considering the appellant’s application for rehearing, I have concluded that I should have voted to concur in the result on original submission.

MURDOCK, Judge,

dissenting.

Although I concurred in the result upon original issuance of the opinion of this court in this matter, upon consideration of the Lumpkins’ application for rehearing I have come to the conclusion that this court should have reversed the trial court’s summary judgment in favor of the City of Gulf Shores. Accordingly, I respectfully dissent from this court’s decision to overrule the Lumpkins’ application for rehearing.


source: Caselaw Access Project

author: PITTMAN, Judge. MOORE, Judge,

license: Public Domain

text:
    Randall BARNES v. BAY FURNITURE AND APPLIANCE COMPANY, INC.
    2050291.
    Court of Civil Appeals of Alabama.
    Feb. 9, 2007.
    Certiorari Denied April 13, 2007 Alabama Supreme Court 1060789.
    Richard L. Watters, Mobile, for appellant.
    Michael Gillion, Mobile, for appellee.
   PITTMAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(A), Ala. R.App. P.; Ala.Code 1975, § 25-5-81(e); Ex parte Staggs, 825 So.2d 820, 822 n. 1 (Ala.2001); Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996); Devan Lowe, Inc. v. Stephens, 842 So.2d 703, 706 (Ala.Civ.App.2002); Alverson v. Fontaine Fifth Wheel Co., 586 So.2d 216, 217 (Ala.Civ.App.1991); and DeHart v. Ideal Basic Indus., Inc., 527 So.2d 136, 137 (Ala.Civ.App.1988).

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

MOORE, J., concurs specially.

MOORE, Judge,

concurring specially.

I concur in the decision to affirm the judgment of the trial court denying the employee’s claim for permanent-total-disability benefits and awarding the employee compensation on the basis of a 50% permanent partial disability. The determinations as to the percentage of disability and the percentage of loss of ability to earn are for the trial court, which has much discretion in that regard. Alverson v. Fontaine Fifth Wheel Co., 586 So.2d 216, 217 (Ala.Civ.App.1991). In reaching its decision, the trial court is not bound by the opinions of expert witnesses, even if their testimony is uncontroverted. Rogers v. Chrysler Motors Corp., 587 So.2d 367, 370 (Ala.Civ.App.1991).

I write specially to add that it appears to me that, as a matter of law, the trial court could not have awarded permanent-total-disability benefits in this case. The trial court did not make any finding of fact that the injury to the employee’s knee extended to any other part of his body. Even if we were to find that the court impliedly made such a finding, that finding could not be sustained on appeal because the undisputed evidence in this case showed that the employee permanently lost partial use of his right leg due to an injury to his right knee and that that injury did not extend to any other part of the employee’s body. Pursuant to Ex parte Dmmmond Co., 837 So.2d 831 (Ala. 2002), the trial court could only have concluded that the exclusive remedy for the employee’s disability rested in §§ 25-5-57(a)(3)a.l6. and 25-5-57(a)(3)d., Ala.Code 1975, which together provide for weekly benefits for a percentage of 200 weeks for a permanent partial loss of use of a leg. Hence, the trial court certainly did not err in failing to award benefits pursuant to § 25-5-57(a)(4), Ala.Code 1975, as asserted by the employee.

I write further to address the employee’s contention that a trial court is bound by the direct testimony of the employee’s witnesses when the employer fails to present any witnesses to rebut the testimony of the employee’s witnesses. Although it is true that a trial court is not free to ignore undisputed evidence, Easterly v. Beaulieu of America, Inc., 717 So.2d 406 (Ala.Civ.App.1998), the law does not consider evidence to be “undisputed” simply because another witness fails to directly contradict such evidence. Devan Lowe, Inc. v. Stephens, 842 So.2d 703 (Ala.Civ.App.2002). Rather, a trial court may decide that the testimony of a witness should be given little or no weight after cross-examination, based on its observations of the witness, in view of the totality of the evidence (including the exhibits introduced at trial), or for some other equally good reason. In any of those instances, the trial court, as the fact-finder, would not be bound by the direct testimony of a witness even in the absence of direct contradiction by another witness.

In this case, utilizing what I would consider the best practice, the trial court explicitly set out its reasons for discounting the testimony of the employee, the employee’s treating physician, and the employee’s vocational expert, all of whom testified that the employee could no longer work. Based on the detailed findings of fact set out in the trial court’s judgment, I cannot agree that the trial court ignored the direct testimony of the employee’s witnesses; rather, I conclude that the trial court fully considered that testimony along with the other evidence when assessing the disability of the employee, which is the trial court’s proper function as the fact-finder. See, e.g., Fowler v. Employers Choice, 658 So.2d 452 (Ala.Civ.App.1994) (trial court properly rejected the treating physician’s diagnosis of reflex sympathetic disorder based on its own observations of the employee’s alleged affected extremity). I find no error in either the manner in which the trial court reached its decision to reject the testimony regarding the employee’s alleged inability to work or the ultimate factual conclusion it reached in this regard.


author: PER CURIAM.

text:
    In the Matter of ANONYMOUS, a minor.
    2060558.
    Court of Civil Appeals of Alabama.
    April 4, 2007.
   PER CURIAM.

An unemancipated minor filed a petition in an Alabama juvenile court pursuant to § 26-21-1 et seq., Ala.Code 1975, seeking a judicial waiver of parental consent for an abortion. The minor waived the appointment of counsel, but the juvenile court appointed a guardian ad litem to represent her. Following a hearing, at which only the minor testified, the juvenile court denied the petition. The minor appeals.

The transcript of the hearing on the minor’s petition comprises 12 double-spaced pages. The minor testified at the hearing that she was at that time 17 years old and 12 to 14 weeks pregnant. The minor stated that she fives with her mother and her stepfather and that her father fives in another town. The minor testified that she has lived with her mother and stepfather the majority of her fife, but that she has also maintained a relationship with her father. The minor, a senior in high school, testified that she found out that she was pregnant after taking a home-pregnancy test. She subsequently went to a hospital, where a second, “medical” pregnancy test confirmed that she was pregnant.

The minor testified that she has not told her mother and stepfather that she was pregnant because she fears that they would “kick her out” of the house. According to the minor, the mother and stepfather had warned her that they would “kick her out” of the house if she ever became pregnant. The minor testified that she would have nowhere to go if she were forced to leave her mother and stepfather’s house. The minor testified that she has never had a discussion with her father regarding the possibility of her becoming pregnant. The minor testified that she did not believe that either of her parents would consent to her having an abortion.

The minor testified that she understood the gravity of her decision to seek an abortion. The minor stated that she had discussed her decision with her boyfriend, who she said is the father of the unborn child. The minor testified that she had considered the possibility of seeking assistance from her boyfriend’s parents, but expressed concern that even with assistance she would “still be stuck with a baby that [she does not] want.” According to the minor, at the time of the hearing the boyfriend had not discussed the minor’s pregnancy with his parents.

The minor assured the juvenile court that she had considered all her options and had also considered the health risks associated with the abortion procedure. However, the minor testified that, at the time of the hearing, she had not talked to a counselor regarding her decision to have an abortion. The minor testified that the only adults she had spoken to before filing her petition for a waiver of parental consent were the doctor who performed her “medical” pregnancy test and the doctor’s nurse. The minor testified that she and the nurse discussed “possibilities” and whether the minor should tell her parents about the pregnancy. The minor’s testimony did not indicate that she had discussed with a doctor or counselor the physical, psychological, or emotional risks that might be associated with the abortion procedure.

A juvenile court shall grant a petition for a waiver of parental consent to an abortion if it finds either “(1) [t]hat the minor is mature and well-informed enough to make the abortion decision on her own; or (2) [t]hat performance of the abortion would be in the best interest of the minor.” § 26-21-4(f), Ala.Code 1975 (emphasis added). See Ex parte Anonymous, 595 So.2d 497, 498 (Ala.1992). However, the “petition for- waiver of parental consent may be denied only if the court specifically finds both [ (1) that] the minor is immature and not well enough informed to make the abortion decision on her own and (2) that performance of the abortion would not be in her best interests.” Ex parte Anonymous, 595 So.2d at 498. A juvenile court’s order on a petition for a waiver of parental consent must contain written, specific factual findings and legal conclusions supporting its decision. § 26-21-4(g), Ala.Code 1975.

In Ex parte Anonymous, 803 So.2d 542 (Ala.2001), our supreme court explained the application of the ore tenus rule in cases of this type:

“We find that in a case where a minor seeks a waiver of parental consent for an abortion and no adverse party cross-examines her or otherwise challenges her testimony, a rule compelling acceptance of undisputed live testimony as true — without affording, any deference to the trial court’s ability to observe and asséss the demearior of the witness' — -is unsound. In such a case — where the trial court has had the opportunity to observe the witness and where assessments of the level of the minor’s maturity are crucial — the trial court’s findings should be afforded considerable deference. Here, the trial judge had the responsibility of determining the facts. In particular, it was the trial judge’s responsibility to determine whether the petitioner is mature enough and well-informed enough about the abortion procedure to make an independent decision whether to undergo an abortion without parental consent. See § 26 — 21—4(f), Ala. Code 1975. In addition to hearing the testimony, the trial judge could observe the minor and could consider her demeanor as she testified. That aspect of the evidence is denied an appellate court by a cold record. The trial judge was in a far better position than are we to determine, as a matter of fact, the minor’s maturity and level of knowledge.”

803 So.2d at 546. Under the ore tenus rule, the juvenile court’s judgment is presumed correct unless its factual findings are plainly erroneous or manifestly unjust. Ex parte Anonymous, 803 So.2d at 546.

At the outset, the minor contends that the transcript of the hearing on her petition omits approximately 30 to 45 minutes of a discussion between the minor, the juvenile court judge, the guardian ad litem, and a juvenile intake officer that occurred before going “on the record.” The minor refers to numerous facts in support of her arguments on appeal that are not contained in the record on appeal and, in essence, asks this court to look beyond the record on appeal to the assertions made in her brief. “[0]ur supreme court has stated that an appellate court is limited to a review of the record, and the record cannot be changed, altered, or varied on appeal by statements in briefs of counsel.” Quick v. Burton, 960 So.2d 678, 681-82 (Ala.Civ.App.2006) (citing Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166, 176 (Ala.2000), and Gotlieb v. Collat, 567 So.2d 1302, 1304 (Ala.1990)). In addition, the minor did not file a statement pursuant to Rule 10(d), Ala. R.App. P., including the alleged untranscribed portion of the hearing as part of the record on appeal. Therefore, we will not consider the additional evidence offered by the minor in her brief on appeal.

The minor contends on appeal that the juvenile court’s order does not adequately set forth specific factual findings and legal conclusions supporting its decision as required by § 26-21-4(g). In its order, the juvenile court made the following pertinent findings when it denied the minor’s petition for a waiver of parental consent:

“(1) The [minor] is 17 years of age, is unmarried and unemancipated, [and] is approximately 12 to 14 weeks pregnant. ...
“(2) The minor is not mature and well informed enough to make the abortion decision and the performance of the abortion is not in the best interest of the minor child.
“(3) The minor child ... has had only a brief consultation with a nurse practitioner, when the results of the pregnancy test were given and has not consulted with any other party.
“(4) The minor child has not consulted with a physician, nurse practitioner, counselor or any other medical professional or adult concerning her health, well being, and interest when an abortion procedure is performed or any other viable alternatives.”

Contrary to the minor’s assertion on appeal, the trial court’s order complies with § 26-21-4(g), by making specific factual findings regarding the minor’s failure to consult with health-care professionals regarding the physical, psychological, and emotional ramifications of undergoing an abortion procedure and the minor’s failure to address viable alternatives to having an abortion. Given the brevity of the transcript and the limited facts in the transcript, the factual findings made by the juvenile court in its order support its conclusion that “[t]he minor is not mature and well informed enough to make the abortion decision and the performance of the abortion is not in the best interest of the minor child.”

The minor further contends on appeal that the juvenile court’s findings that she was not mature enough and not well-informed enough about the abortion decision and that having an abortion was not in her best interest were unsupported by the evidence. The minor’s testimony revealed that she filed the petition for a waiver of parental consent based on a conversation she had had with her mother and stepfather at some point before she became pregnant, during which the mother and stepfather told the minor that they would require her to leave their house if she were to become pregnant. The minor testified that she sought the waiver because “[she did not] want to have nowhere to go.” The minor testified that even if her parents would be willing to assist her, she would “still be stuck with a baby that [she does not] want.”

The minor testified that the only adults she had consulted regarding her pregnancy were the doctor who gave her the result of her “medical” pregnancy test and the doctor’s nurse. The minor did not indicate in her testimony that she had discussed with the doctor the physical risks of undergoing an abortion procedure or the alternatives to having an abortion. When the juvenile court asked her what type of questions she and the nurse had gone over, the minor responded:

“Just — I mean, the possible — the possibilities considering that I am only 17 and, like, just what I should — what I could do and if I shouldn’t tell my parents and if I — I mean, they told me if I ever — if I just needed to talk to someone that I could come back.”

The minor’s testimony also did not indicate that she had discussed with a doctor, a nurse, or a counselor any potential psychological or emotional problems that might arise after having an abortion.

“[T]he burden of proof with respect to both the maturity/well-informed prong and the best-interest prong of § 26-21-4(f) lies with the minor.” In re Anonymous, 833 So.2d 75, 78 (Ala.Civ.App.2002). . Regarding evidence of the maturity of the minor here and whether she was well-informed enough to make the abortion decision on her own, the minimal evidence presented by the minor revealed that she had not discussed with an adult either the physical risks or emotional consequences of having an abortion in order to enable her to make a well-informed decision. In her brief testimony, the minor also presented very little evidence as to whether an abortion would be in her best interest: she testified that, if she were forced to tell her mother and stepfather that she was pregnant, they would “kick her out” and she would have nowhere to go. The minor provided no evidence of any plans she had for the future and how continuing her pregnancy would affect those plans, other than her testimony that she believed she would have no place to live if she was unable to have the abortion. The minor did not testify as to how her father might react to the news of her pregnancy or his willingness to assist her.

In Ex parte Anonymous, 889 So.2d 525, 525-26 (Ala.2003), our supreme court held that the minor in that case failed to meet her burden of proof as to whether an abortion was in her best interest. In so holding, our supreme court concluded that the minor failed to meet her burden of proof “as to the best-interest prong, particularly in light of the absence of evidence as to the attitude or ability of the minor’s father to assist her and as to whether an abortion is in her physical and emotional best interest.” Like the minor in Ex parte Anonymous, the minor in this case provided no testimony regarding her father’s attitude or ability to assist her and whether an abortion would be in her physical and emotional best interest.

Based on the testimony of the minor in this case, the juvenile court was not persuaded that the minor was mature and well-informed enough to make the decision to have an abortion, nor was it persuaded that the performance of the abortion was in the best interest of the minor. After reviewing the minor’s testimony, we cannot conclude that the juvenile court’s judgment in this regard was “plainly erroneous or manifestly unjust.” Ex parte Anonymous, 803 So.2d at 546.

The minor also contends on appeal that the trial court failed to enter its order within 72 hours of the filing of the minor’s petition for a waiver of parental consent as required by Rule 2, Temporary Rules Governing Procedures for Petitions by an Un-emancipated Minor Requesting Waiver of Parental Consent for the Performance of an Abortion, and that, therefore, the waiver should be granted. Rule 2 provides, in pertinent part:

“In eases arising out of the jurisdiction of the trial court over an unemancipated minor, who files a petition for a waiver of written consent of a parent or legal guardian to the performance of an abortion, the trial court shall, within seventy-two (72) hours from the filing of the petition, render and enter its final judgment.”

That provision of Rule 2 requiring a ruling by the juvenile court within 72 hours of the filing of the petition is taken from Ala.Code 1975, § 26-21-4(e), which in turn reflects the principle espoused in Bellota v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) — that resolution of the issue and any appeal in a case involving a request by a minor for a waiver of parental consent for an abortion “will be completed with anonymity and sufficient expedition to provide an effective opportunity” for the minor to obtain an abortion if a waiver is due to be granted. 443 U.S. at 643-44, 99 S.Ct. 3035 (emphasis added).

The record on appeal reveals that the minor filed her petition for a waiver of parental consent to an abortion on March 12, 2007. The juvenile court then set the matter for a hearing to be held the following day. On March 13, 2007, the juvenile court rendered its judgment denying the minor’s petition and entered that judgment in the wrong division of the circuit court. On March 19, 2007, the juvenile court’s order was entered in the proper division of the circuit court.

The minor has not demonstrated on appeal that the juvenile court’s failure to comply with Rule 2 amounts to reversible error. Section 26-21 — 4(e), Ala.Code 1975, and Rule 2, Temporary Rules Governing Procedures for Petitions by an Unemanci-pated Minor Requesting Waiver of Parental Consent for the Performance of an Abortion, do not expressly mandate reversal on appeal should the juvenile court fail to “render and enter” its final judgment within 72 hours of the filing of the petition for a waiver of parental consent. Absent such an express mandate, we cannot agree that a breach of the 72-hour rule is such a default that a judicial waiver must issue, especially where the legislature has expressly found “that parental consultation is usually desirable and in the best interests of [a] minor” contemplating an abortion. Ala.Code 1975, § 26-21-l(b).

Based on the foregoing, the judgment of the juvenile court denying the minor’s petition for a waiver of parental consent is due to be affirmed.

AFFIRMED.

All the judges concur.

      . The county in which the minor filed her petition contains two divisions.


author: PITTMAN, Judge.

text:
    H.M.J., a minor, by and through Jack A. BLUMENFELD, guardian ad litem v. S.L.A. and J.W.A.
    2050973.
    Court of Civil Appeals of Alabama.
    April 6, 2007.
    Jack A. Blumenfeld, Dothan, for appellant.
    Jere C. Segrest and Kevin Walding of Hardwick, Hause, Segrest & Walding, Do-than, for appellee S.L.A.
    Yvonne Gabrielson, Dothan, for appellee J.W.A.
   PITTMAN, Judge.

In December 2005, S.L.A. (“the wife”) filed a complaint in the Houston Circuit Court seeking a divorce from her husband, J.W.A. (“the husband”), alleging that she was “pregnant with the . parties’ child and expect[ed] to give birth to [the] child during the month of May 2006.” The hus- ■ band filed an answer in which he averred that he was unable to admit or deny that he was the biological father of the unborn child and stated in a counterclaim that the wife had told him “not to be so sure” that he was the father of the unborn child; despite having doubts about his paternity, the husband nonetheless claimed that he should receive custody of the child upon its birth and sought DNA testing of the. child. The child, who was named H.M.J. upon birth, was appointed a guardian ad litem, Jack A. Blumenfeld, who appeared in the action and presented arguments on behalf of the child in the circuit court.

On May 4, 2006, based upon an- agreement between the wife and the husband, the wife’s testimony, and the arguments of the guardian ad litemi, the circuit court entered a judgment annulling the parties’ marriage on the basis that the 'parties’ marriage had been illegal and void. As a component of its judgment, the circuit court purported to find from the evidence that grounds existed under § 26-18-7, Ala. Code 1975, that would warrant termination of any parental rights held by the husband in and to the child and purported to thereby terminate those rights. The husband filed a motion to alter, amend, or vacate the judgment on May 17, 2006, thereby tolling the time for taking an appeal from the circuit court’s judgment (see Rule 4(a)(3), Ala. R.App. P.); he also filed what he termed a “motion to set aside” the judgment. The wife’s previous husband, R.J., also filed a motion to intervene in which, among other things, he requested that the child’s last name be changed. The circuit court, after a hearing, made an entry on the case-action-summary sheet on June 8, 2006, indicating that the case had been “settled” and that the wife’s attorney was to provide the circuit court with a proposed judgment form after obtaining approval of the form from counsel for the husband.

On June 27, 2006, the child’s guardian ad litem filed what he termed a “motion to alter, amend, or vacate the judgment” in which he contended that the termination of the husband’s parental rights was not supported by evidence of the child’s best interests. That motion, which was filed more than 30 days after the judgment it attacks, was not a timely postjudgment motion and did not itself further toll the time for taking an appeal. However, at the time the guardian’s motion was filed, the circuit court had not entered an order expressly granting or denying the husband’s postjudgment motions, and they therefore remained pending and continued to toll the time for any party to file a notice of appeal; for that reason, we deny the wife’s motion to dismiss this appeal as untimely. On July 17, 2006, the circuit court entered a new judgment that (a) divorced the husband and the wife, rather than annulling their marriage; and (b) stated that any rights the husband had to the child were terminated.

Only the child, through the guardian ad litem, has appealed from the divorce judgment, specifically challenging that aspect of the judgment pertaining to termination of the husband’s parental rights. As in B.C.M. v. J.T., 738 So.2d 1266, 1267 (Ala.Civ.App.1999), however, “[w]e need not address the facts of this case or the factual arguments advanced ..., given § 12-15-30(b)(6), Ala.Code 1975,” which vests in the juvenile courts “exclusive original jurisdiction of proceedings” that involve “[tjermination of parental rights.” See also N.W.S.S. v. S.D.S., 747 So.2d 339, 340-41 (Ala.Civ.App.1999), and R.H. v. D.W.M., 772 So.2d 1183, 1186 (Ala.Civ.App.2000) (both of which hold that the circuit courts do not have subject-matter jurisdiction to rule on requests to terminate parental rights). Because the circuit court lacked subject-matter jurisdiction to enter the portion of its judgment that purported to terminate the parental rights of the husband, that portion of the judgment is void and will not support an appeal. See Moore v. John Hancock Life Ins. Co., 876 So.2d 443, 448 (Ala.2003). We thus vacate that portion of the circuit court’s judgment purporting to terminate those parental rights the husband may have as to the child, and we dismiss the appeal.

JUDGMENT VACATED IN PART; APPEAL DISMISSED.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.

      . The circuit court ordered the case sealed, and out of due regard for that order we have opted to preserve the parties' anonymity in our opinion.

      . Because the husband did not file a notice of appeal, we cannot address his contention that the circuit court erred in denying his request for paternity testing. See, e.g., Yarbrough v. Motley, 579 So.2d 684, 686 (Ala.Civ.App.1991) ("[WJhere an appellee seeks to enlarge [his] own rights under a judgment, the appel-lee must do so by filing a cross-appeal.”). We do not, however, grant the wife's motion to strike that issue from the husband’s brief. See Wilson v. Crosby Lumber Co., 386 So.2d 1173, 1175 (Ala.Civ.App.1980).


author: McMILLAN, Judge. WELCH, Judge

text:
    John Henry PATTON v. STATE of Alabama.
    CR-05-2156.
    Court of Criminal Appeals of Alabama.
    March 2, 2007.
    Rehearing Denied April 20, 2007.
    Mitch Damsky, Birmingham; and David Gespass, Birmingham, for appellant.
    Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
   McMILLAN, Judge.

The appellant, John Henry Patton, appeals the district court’s denial of his Rule 32, Ala.R.Crim.P., petitions for postconviction relief, in which he attacked his February 23, 1990, guilty-plea conviction for first-degree receiving stolen property and his resulting sentence of two years’ imprisonment, and his August 27, 1990, guilty-plea conviction for unlawful possession of a controlled substance and his resulting sentence of one year and one day in prison. Patton stated in his petitions that he did not appeal his convictions and sentences.

Patton filed his Rule 32 petitions on November 30, 2004. In his petitions, Patton alleged that the district court was without jurisdiction to accept his guilty pleas and to impose the sentences because, he claimed, there is no indication in the record that the informations against him were given under oath. After receiving a response from the State, the district court conducted evidentiary hearings on February 17, 2005, and June 25, 2005. The district court issued separate orders denying the petitions on August 28, 2006.

On appeal, Patton argues: (1) that he raised a jurisdictional claim that was not subject to the procedural bars in Rule 32.2; and (2) that he was denied the opportunity to establish his entitlement to relief when the district court refused to enforce Patton’s subpoena of Jefferson County District Attorney David Barber, who submitted an affidavit to the district court. Because we answer the first question adversely to Patton, the second claim is moot because the lone claim in the petitions was procedurally barred.

Patton argued that although he allegedly entered his guilty pleas to informations filed by the district attorney, the trial court record did not contain properly signed or notarized informations in either case. Patton correctly avers that jurisdictional claims are not subject to the limitations period in Rule 32.2(c), the prohibition against successive petitions in Rule 32.2(b), or the grounds of preclusion in Rule 32.2(a). See, e.g., Edmond v. State, 954 So.2d 608 (Ala.Crim.App.2006); and Grady v. State, 831 So.2d 646, 648 (Ala.Crim.App. 2001). Patton also cites the following excerpt from Ross v. State, 529 So.2d 1074 (Ala.Crim.App.1988):

“Because Ross’s plea of guilt does not rest upon an indictment or information, Ross’s conviction and sentence are void.
“ ‘It is well settled, at common law and from the earliést colonial days in this country, that a prosecution for a crime must be preceded by a formal accusation. Thus, a legally effective criminal prosecution requires that a formal charge be openly made against the accused by an indictment or presentment of a grand jury, or by an information of a prosecuting attorney.’
“2 Wharton’s Criminal Procedure § 225 (C.Torcia 12th ed.1974).
“ ‘Jurisdiction of the offense and of the person must concur to authorize a court of competent jurisdiction to proceed to final judgment in a criminal prosecution. [Citations omitted.]
“ ‘To this end, a formal accusation sufficient to apprise the defendant of the nature and cause of the accusation is a prerequisite to jurisdiction of the offense. Const.1901, § 6; Butler v. State, 130 Ala. 127, 30 South. 338 [ (1901) ]; Miles v. State, 94 Ala. 106, 11 South. 403 [ (1892) ]; 12 Cyc. 221 (VI, H).
“ ‘Irregularities in obtaining jurisdiction of the person may be waived, but a formal accusation by indictment, or information, or complaint supported by oath is essential to complete jurisdiction, and cannot be waived. 12 Cyc. 221; Butler v. State, supra; Johnson v. State, 82 Ala. 29, 2 South. 466 [ (1887) ].’
“Sherrod v. State, 14 Ala.App. 57, 59-60, 71 So. 76, 78, rev’d on other ground, 197 Ala. 286, 72 So. 540 (1916).”

Ross v. State, 529 So.2d at 1077-78. We note further that the Alabama Supreme Court has held that “because a sworn information is essential to confer on a trial court jurisdiction to accept a guilty plea, the district attorney’s failure to make the information under oath cannot be waived.” Ex parte Looney, 797 So.2d 427, 429 (Ala.2001). Were Ex parte Looney or Ross the latest statement of the law regarding jurisdiction, Patton’s contention that he has raised a jurisdictional claim that entitles him to relief may have been meritorious. However, neither Ex parte Looney nor Ross are the latest statement of the law.

The Alabama Supreme Court recently held that “a trial court derives its jurisdiction from the Alabama Constitution and the Alabama Code.” Ex parte Seymour, 946 So.2d 536, 538 (Ala.2006). The Alabama Supreme Court continued:

“Jurisdiction is ‘[a] court’s power to decide a case or issue a decree.’ Black’s Law Dictionary 867 (8th ed.2004). Subject-matter jurisdiction concerns a court’s power to decide certain types of cases. Woolf v. McGaugh, 175 Ala. 299, 303, 57 So. 754, 755 (1911) (‘ “By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought.” ’ (quoting Cooper v. Reynolds, 77 U.S. (10 Wall.) 308, 316 (1870))). That power is derived from the Alabama Constitution and the Alabama Code. See United States v. Cotton, 535 U.S. 625, 630-31 (2002) (subject-matter jurisdiction refers to a court’s ‘statutory or constitutional power’ to adjudicate a case). In deciding whether Seymour’s claim properly challenges the trial court’s subject-matter jurisdiction, we ask only whether the trial court had the constitutional and statutory authority to try the offense with which Seymour was charged and as to which he has filed his petition for certiorari review.
“Under the Alabama Constitution, a circuit court ‘shall exercise general jurisdiction in all cases except as may be otherwise provided by law.’ Amend. No. 328, § 6.04(b), Ala. Const.1901. The Alabama Code provides that ‘[t]he circuit court shall have exclusive original jurisdiction of all felony prosecutions ....’ § 12-11-30, Ala.Code 1975. The offense of shooting into an occupied dwelling is a Class B felony. § 13A-11-61(b), Ala.Code 1975. As a result, the State’s prosecution of Seymour for that offense was within the circuit court’s subject-matter jurisdiction, and a defect in the indictment could not divest the circuit court of its power to hear the case.
“The United States Supreme Court has long held that ‘defects in an indictment do not deprive a court of its power to adjudicate a case.’ Cotton, 535 U.S. at 630. As Justice Holmes stated in Lamar v. United States, 240 U.S. 60, 64 (1916), ‘[t]he objection that the indictment does not charge a crime ... goes only to the merits of the case.’
“A number of states agree. See Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997); Howell v. State, 421 A.2d 892, 895 (Del.1980); Ford v. State, 330 Md. 682, 625 A.2d 984 (1993); Roth v. State, 714 P.2d 216 (Okla.Crim.App.1986); State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005); Studer v. State, 799 S.W.2d 263 (Tex.Crim.App.1990); but see State v. Byington, 135 Idaho 621, 21 P.3d 943 (2001). The Supreme Court of Missouri, addressing this precise issue, framed the issue succinctly: ‘Subject matter jurisdiction of the circuit court and the sufficiency of the information or indictment are two distinct concepts. The blending of these concepts serves only to confuse the issue to be determined.’ State v. Parkhurst, 845 S.W.2d 31, 34-35 (Mo.1992). We find this approach persuasive and consistent with both the Alabama Constitution and the Alabama Code.
“The validity of Seymour’s indictment is irrelevant to whether the circuit court had jurisdiction over the subject matter of this case. A defect in an indictment may be error, see Rule 15.2(d), Ala. R.Crim.P. — or even constitutional error, see Ala. Const., Art. I, § 8 — but the defect does not divest the circuit court of the power to try the case. A defendant who challenges a defective indictment is thus subject to the same preclusive bars as one who challenges any other nonju-risdictional error, such as an illegal seizure or a violation of the Confrontation Clause.”

Ex parte Seymour, 946 So.2d at 538-39.

Just as a circuit court, which was the trial court in Seymour, derives its jurisdiction from the Alabama Constitution and the Alabama Code, so too do the district courts in Alabama’s court system. Under the Alabama Constitution, the district court is a “court of limited jurisdiction,” Amend. No. 328, § 6.01, Ala. Const. 1901 (Art. IV, § 143 (Official Recomp.)), and “shall exercise uniform original jurisdiction in such cases, and within such geographical boundaries, as shall be prescribed by law....” Amend. No. 328, § 6.05, Ala. Const.1901 (Art. IV, § 143 (Official Recomp.)). Thus, as this Court has previously noted, except in cases involving certain municipal ordinance infractions as is discussed more fully in Amend. No. 328, § 6.05, Ala. Const.1901, “the district court has original jurisdiction only in such cases as the legislature provides.” Henderson v. State, 616 So.2d 406, 408 (Ala.Crim.App.1993) (emphasis omitted). The Alabama Legislature has so acted; the Alabama Code provides that “[t]he district court may exercise original jurisdiction concurrent with the circuit court to receive pleas of guilty in prosecutions of offenses defined by law as felonies not punishable by sentence of death.” § 12 — 12—32(b)(1), Ala. Code 1975. Receiving stolen property in the first degree is a Class B felony, see § 13A-8-17(b), Ala.Code 1975; the offense of unlawful possession of a controlled substance is a Class C felony, see § 13A-12-212(b), Ala.Code 1975. Thus, based on the rationale expressed in Ex parte Seymour, we conclude that the district court had subject-matter jurisdiction to accept Patton’s guilty pleas to those offenses, and any defects in the informations could not divest the district court of its power to accept the pleas. Therefore, Patton’s claim, although couched in jurisdictional terms, is not truly jurisdictional, and Patton is not entitled to any relief because his petition was filed well beyond the limitations period in Rule 32.2(c), Ala.R.Crim.P.

Based on the foregoing, the judgment of the district court is affirmed.

AFFIRMED.

BASCHAB, P.J., and SHAW and WISE, JJ., concur; WELCH, J., concurs in the result, with opinion.

WELCH, Judge

(concurring in the result).

In 1990, the appellant, John Henry Patton, pleaded guilty in the district court to two felonies pursuant to two informations allegedly filed by the district attorney. He appeals from the denial of two Rule 32, Ala. R.Crim. P., petitions, claiming that the district court abused its discretion when it denied his petitions because, he says, the district attorney’s office failed to prepare and present an information signed under oath by the district attorney in each case, as required by § 15-15-21, Ala.Code 1975, and therefore, Patton contends, the district court did not have jurisdiction to convict and sentence him in either case.

The State responded and produced from its files unsigned copies of the informa-tions underlying each conviction. The State asserted that in each ease an information, signed by the district attorney, had been properly filed in the district court before the entry of Patton’s plea. The State also asserted that the original informations had been lost after the plea was entered.

In this case the majority determined that Patton’s claim that the absence of an information, signed under oath by the district attorney, was a nonjurisdictional claim pursuant to the rationale set forth in Ex parte Seymour, 946 So.2d 536 (Ala.2006). Thus, according to the majority, the claim was proeedurally barred. See Rule 32.2(c), Ala. R.Crim. P.

In so holding, the majority ruled that Seymour had implicitly overruled Ex parte Looney, 797 So.2d 427 (Ala.2001). Looney held that an information signed under oath by the district attorney was “essential’to confer on a trial court jurisdiction to accept a guilty plea.” Looney, 797 So.2d at 429.

I disagree with the majority’s conclusion that Looney has been overruled by Seymour.

Seymour held that an indictment that was defective because it failed to allege a culpable mental state did not deprive a trial court of subject-matter jurisdiction. It overruled cases that had held that a valid indictment is the source of a trial court’s subject-matter jurisdiction. Ash v. State, 843 So.2d 213 (Ala.2002), and Ex parte Lewis, 811 So.2d 485 (Ala.2001). Seymour did not address the question of whether a trial court has subject-matter jurisdiction over a case in which the indictment was void ab initio, e.g., an indictment not preferred as the result of 12 or more grand jurors — or as in the instant case, an information not signed under oath by the district attorney.

The Alabama Supreme Court in Seymour stated:

“In deciding whether Seymour’s claim properly challenges the trial court’s subject-matter jurisdiction, we ask only whether the trial court had the constitutional and statutory authority to try the offense with which Seymour was charged and as to which he has filed his petition for certiorari review.”

Seymour, 946 So.2d at 538.

The authority for a district court to proceed by information derives from the Alabama Constitution and the Alabama Code. Article I, § 8, of the Alabama Constitution of 1901, provided that an information could not be used to proceed against an individual for an indictable offense except in limited circumstances. This provision was amended by Amendment No. 37, which provided:

“No person shall for any indictable offense be proceeded against criminally by information, except in cases arising in the militia and volunteer forces when in actual service, or when assembled under arms as a military organization, or, by leave of the court, for misfeasance, misdemeanor, extortion and oppression in office, otherwise than is provided in the Constitution; provided, that in cases of misdemeanor, the legislature may by law dispense with a grand jury and authorize such prosecutions and proceedings before justices of the peace or such other inferior courts as may be by law established. Provided further that in all felony cases, except those punishable by capital punishment, the legislature may by law dispense with a grand jury and authorize such prosecutions and proceedings in such manner as may be provided by law if the defendant, after having the advice of counsel of his choice or in the event he is unable to employ counsel, the advice of counsel which must be appointed by the court, makes known in open court to a judge of a court having jurisdiction of the offense that he desires to plead guilty, provided, however, the defendant cannot plead guilty within fifteen days after his arrest.”

§ 8, Ala. Const.1901, as amended by Amendment No. 37.

Amendment 37 was implemented by the legislature in § 15-15-20.1, Ala.Code 1975. That section prescribes procedures for using informations as follows:

“(a) In any criminal proceeding for a non-capital felony offense commenced by complaint, the defendant may give written notice three days after his or her arrest to a judge of the district or circuit court of the county having jurisdiction of the offense charged that the defendant desires to plead guilty as charged or as a youthful offender upon the granting of youthful offender status.
“(b) Upon receipt of the written notice from the defendant stating his or her desire to plead guilty, the court shall direct the district attorney to prefer and file an information against the defendant. The information shall be made under oath of the district attorney or a witness, and shall accuse the defendant with the same specificity as required in an indictment of the offense or offenses for which the defendant is charged. This section shall not be construed to preclude the district attorney from amending or dismissing a pending charge against a defendant before the defendant pleads guilty.
“(c) Upon the filing of an information, the court shall ascertain whether the defendant has retained counsel, and, shall appoint counsel if the defendant is indigent. The court shall set an arraignment date to enable the defendant to formally enter a plea of guilty in open court. Arraignment may be held and the guilty plea entered at any time after the filing of an information.
“(d) The court shall receive and enter the plea of guilty of the defendant, and shall immediately pronounce and enter a judgment of conviction, set a date for sentencing, and thereafter proceed as provided by law.
“(e) Upon acceptance from the defendant [of a] plea of guilty and pronouncement and entry of judgment and sentencing, the defendant shall have a right of appeal from the action of the court. “(f) In district court, a record of the defendant’s plea of guilty shall be kept by mechanical or electronic device. Any exhibits shall be preserved by the court. The record shall be preserved by the court and shall be transcribed by the designee if the defendant gives notice of appeal. The transcript of the defendant’s plea of guilty shall be certified as directed by the court or as required by the Alabama Rules of Appellate Procedure.
“(g) If the court does not accept plea of guilty of the defendant or if youthful offender status of the defendant’s application is denied, the court shall:
“(1) Order the defendant discharged.
“(2) Order the defendant released as provided by law.
“(3) Order the defendant held in custody pending action of the grand jury, or until released on bail.
“(h) This section supersedes Rule 2.2.(e) of the Alabama Rules of Criminal Procedure.
“(i) This section applies to all persons charged with non-capital felonies after its effective date.”

A district court derives its authority to take a guilty plea in a felony case in which an information is filed from the Alabama Constitution and the Alabama Code, if the information is filed in accordance with the Alabama Constitution and the Alabama Code. The district court does not have jurisdiction to accept a plea to a felony offense as to which the defendant has not been indicted, except by virtue of the provisions of those documents.

In Seymour, the Alabama Supreme Court cited Butler v. State, 130 Ala. 127, 30 So. 338 (1901). Butler concerned a conclusory affidavit that failed to set out any elements of larceny. It was held that the solicitor’s complaint failed to charge an offense because it was founded on a void complaint. The Alabama Supreme Court also cited Kyser v. State, 22 Ala.App. 431, 117 So. 157 (1928). In Kyser a circuit judge issued a warrant alleging a violation of the prohibition law and tried the case. The court there held that without an indictment or an appeal from a lower court conviction, the circuit court did not have subject-matter jurisdiction to try a criminal case. The Court in Seymour did not explicitly overrule Butler or Kyser.

Thus, I believe that Seymour stands for the proposition that a flaw in an otherwise properly returned indictment or information does not impugn the trial court’s jurisdiction. However, I do not believe that Seymour permits a trial court to pronounce judgment where an indictment or information has not, in essence, been properly considered, executed, and brought forward from the grand jury. Likewise, I do not believe that an information presents charges against a defendant until it is properly signed under oath by the district attorney.

Notwithstanding my opinion regarding Seymour, I agree with the majority’s conclusion that Patton is not entitled to relief from his convictions. Here, the trial court conducted an evidentiary hearing and explicitly found that the information signed by the district attorney, under oath, was present in each 1990 case to which Patton pleaded guilty. The trial court found that the informations had been lost following the entry of Patton’s plea. The trial court then correctly disposed of Patton’s Rule 32 petitions on the merits.

Though not addressed in the majority opinion, I note that Patton also argued in the district court and on appeal that he was denied the right of confrontation because the district court refused to require the district attorney to respond to a subpoena duces tecum that Patton had filed seeking to have the district attorney produce notary public logs related to his cases. The district court found affidavits from the district attorney regarding standard practices of the district attorney’s office and its handling of informations to be sufficient. Rule 32.9, Ala. R.Crim. P., allows the court broad discretion in taking evidence by deposition, by interrogatories, and by testimony, or by any combination of these. I do not believe that the district court abused its discretion by receiving the affidavit in lieu of notary public logs.

Therefore, unlike the majority, I would affirm the judgment of the district court denying Patton’s Rule 32 petitions because I believe that Patton’s claim is without merit.

      . At the first hearing, the district court heard argument from the parties, and set the second hearing to allow the parties time to obtain additional evidence on the matter. Patton’s argument was generally that the trial court record and the district attorney’s file did not contain a properly signed information in either case. The State argued generally that the signed copy would have been sent to the court, and that had an information not been prepared, the file would reflect grand jury proceedings; the State further noted that the case action summary in both cases contained a notation by the trial court indicating that Patton was pleading guilty to the respective offenses as charged in the information filed by the district attorney. Although we do not address the merits of Patton’s claims, we note that the evidence presented in this case closely mirrors the evidence elicited and found to be sufficient to support the district court’s determination that an information had been properly filed in Coleman v. State, 843 So.2d 237 (Ala.Crim.App.2001).

      . The limitations period in Rule 32.2(c) is "mandatory and jurisdictional,” Arthur v. State, 820 So.2d 886, 889 (Ala.Crim.App.2001), and "[a]n Alabama court has no authority to excuse a procedurally defaulted claim.” Davis v. State, [Ms. CR-03-2086, August 25, 2006]-So.2d-,-(Ala.Crim.App.2006) (opinion on application for rehearing).

      . In 1996 §§ 15-15-20 through 15-15-22 were repealed and replaced by § 15-15-20.1, Ala.Code 1975. See Ex parte Hambrick, 774 So.2d 535 (Ala.2000). At the time Patton pleaded guilty, § 15-15-21 provided:
      “When the desire of a defendant to plead guilty is made known to the court, it shall direct the district attorney of such court to prefer and file an information against such defendant, under the oath of such district attorney or some witness, which information shall accuse the defendant, with the same certainty as an indictment, of the criminal offense for which he is being held.”
      Section 15-15-20.1, Ala.Code 1975, contains essentially the same requirements as former § 15-15-21, Ala.Code 1975.

      . See note 3.


author: BASCHAB, Presiding Judge.

text:
    Dennis Ray CRANE II v. STATE of Alabama.
    CR-06-0223.
    Court of Criminal Appeals of Alabama.
    April 27, 2007.
    Jeremy Shane Givens, Centre, for appellant.

      Troy King, atty. gen., and Stephanie E. Reiland, asst. atty. gen., for appellee.
   BASCHAB, Presiding Judge.

The appellant, Dennis Ray Crane II, was indicted for attempted murder in case number CC-06-148 and first-degree robbery in case number CC-06-149. Pursuant to a negotiated agreement, he pled guilty to first-degree assault, a violation of § 13A-6-20(a)(l), Ala.Code 1975, in case number CC-06-148 and attempted first-degree robbery in case number CC-06-149. The trial court sentenced him to serve consecutive terms of twenty years in prison, but split the sentences and ordered him to serve five years followed by, five years on probation. The appellant filed a motion to withdraw his guilty plea in case number CC-06-149, which the trial court denied after conducting a hearing. This appeal followed.

Initially, with regard to case number CC-06-148, our review of the record indicates that, when the appellant entered his guilty pleas, he did not reserve the right to appeal any issues. Also, he did not file a motion to withdraw his guilty plea in case number CC-06-148. Therefore, the appellant did not reserve the right to appeal his guilty plea in case number CC-06-148. See Rules 14.4(a)(l)(viii) and 26.9(b)(4), Ala. R.Crim. P. Accordingly, we dismiss the appeal in case number CC-06-148.

In case number CC-06-149, the appellant was indicted for first-degree robbery, but pled guilty to attempted first-degree robbery. We addressed a similar situation in Casey v. State, 925 So.2d 1005, 1006 (Ala.Crim.App.2005), as follows:

“Casey was originally indicted for robbery in the first degree, and on February 28, 1983, he pleaded guilty to attempted robbery in the first degree.

He claims that the trial court had no jurisdiction to accept the plea because, he argues, the offense he was charged with and to which he pleaded guilty did not exist under Alabama law. In Petty v. State, 414 So.2d 182, 183 (Ala.Crim.App.1982), this Court said:

“ ‘Because the definition of robbery has been enlarged and expanded by the new criminal code, “the former offense of assault with intent to rob has been merged into the present offense of robbery.” [Marvin v. State, 407 So.2d 576, 579 (Ala.Crim.App.1981).] For this same reason the former crime of attempted robbery now constitutes robbery. Section 13A-8-43(a) adds a definition that extends robbery to include conduct which occurs in an attempt to commit a theft or in flight after the attempt or commission. Section 13A-8-40(b).’
“The State concedes that because Casey pleaded guilty to an offense that does not exist, his conviction is void and should be set aside. In Ex parte Wesley, 481 So.2d 1162, 1163 (Ala.1985), the Alabama Supreme Court held that the State may reindict an appellant for the appropriate offense of robbery; in Ex parte Wesley, the appellant had previously been charged with robbery in the first degree, but that charge had been amended pursuant to a guilty-plea agreement to charge the non-existent offense of attempted robbery. Thus, while the first indictment was improper and void, the State could properly charge an offense established by the evidence.”

See also Watkins v. State, 941 So.2d 343 (Ala.Crim.App.2006); Pilgrim v. State, 963 So.2d 697 (Ala.Crim.App.2006).

For the reasons set forth above, the trial court did not have jurisdiction to render a judgment and impose a sentence against the appellant for attempted first-degree robbery. Therefore, his conviction and sentence in case number CC-06-149 are void and must be set aside. However, the State may reindict the appellant for the appropriate offense of first-degree robbery. See Ex parte Wesley, supra; Casey, supra. Accordingly, we reverse the appellant’s conviction and sentence for attempted first-degree robbery in case number CC-06-149 and remand this case to the trial court for proceedings that are consistent with this opinion.

APPEAL DISMISSED AS TO CASE NUMBER CC-06-148; REVERSED AND REMANDED AS TO CASE NUMBER CC-06-149.

McMILLAN, SHAW, WISE, and WELCH, JJ., concur.

      . Because of our disposition of this case, we pretermit discussion of the claim the appellant raises in his brief to this court.