author: WOODALL, Justice. SEE, Justice LYONS, Justice

text:
    Ex parte CHEMICAL WASTE MANAGEMENT, INC. (In re John Nichols v. Chemical Waste Management, Inc., et al.).
    1041039.
    Supreme Court of Alabama.
    Nov. 18, 2005.

      James L. Priester, Lorrie L. Hargrove, and James L. Mitchell of Maynard, Cooper & Gale P.C., Birmingham, for petitioner.
    J. Doyle Fuller and Susan G. Copeland of Law Office of J. Doyle Fuller, P.C., Montgomery; and William J. Baxley and Joel E. Dillard of Baxley, Dillard, Dauphin, McKnight & Barclift, Birmingham, for respondent.
   WOODALL, Justice.

Chemical Waste Management, Inc. (“ChemWaste”), petitions this Court for a writ of mandamus directing the Montgomery Circuit Court to dismiss the action filed against it by John Nichols. We deny the petition.

ChemWaste operates a hazardous-waste treatment, storage, and disposal facility located in Emelle, Alabama. Since September 30, 1992, the State of Alabama has “levied fees on waste received for disposal to be paid by the operators of each commercial site for the disposal of hazardous waste or hazardous substances.” § 22-30B-2(e), Ala.Code 1975. The parties agree that fees totaling $51 per ton are levied “on all hazardous waste ... received for disposal.” § 22 — 30B—2(c)(1). They further agree that fees totaling $21 per ton are levied “on all other waste ... at a commercial site for the disposal of hazardous waste and hazardous substances,” § 22-30B-2(c)(4), that is, nonhazardous waste.

ChemWaste receives hazardous waste, some of which ChemWaste treats to remove its hazardous characteristics before it disposes of the waste (“decharacterized waste”). For a time, ChemWaste paid the $51-per-ton tax on the decharacterized waste. However, on June 24, 1999, Chem-Waste submitted a petition for refund to the Alabama Department of Revenue (“the Department”), seeking a revenue ruling as to future waste-disposal fees for decharac-terized waste, as well as the refund of fees it alleged it had improperly paid to the Department with regard to the disposal of decharacterized waste.

ChemWaste and the Department resolved the petition for refund. While ChemWaste received no refund for the $51-per-ton tax it had paid on decharac-terized waste, the Department and Chem-Waste agreed that, after the date of their agreement, the total fees on decharacter-ized waste would be reduced to $21 per ton, that is, to the nonhazardous-waste rate.

On July 15, 2004, John Nichols, an Alabama taxpayer, sued ChemWaste, the Department, Clayton L. Young, and Nicholas Bailey in the Montgomery Circuit Court. According to Nichols, his lawsuit is “a legal challenge to the decision of the Department of Revenue to reduce a tax, i.e., an abatement, on a certain kind of waste that was received for disposal at the Emelle landfill.” Nichols’s brief, at 4. The decision Nichols refers to as a tax reduction or abatement is the Department’s agreement to accept fees on decharacterized waste at the rate of $21 per ton, instead of the $51-per-ton rate ChemWaste had previously paid on such waste at the Department’s insistence.

Count one of Nichols’s complaint is brought pursuant to the Declaratory Judgments Act, § 6-6-220 et seq., Ala. Code 1975. In that count, Nichols seeks “only a declaration that the tax abatement was wrongfully granted and is void,” Nichols’s brief, at 22, and “does not seek to recover funds on behalf of the State.” Nichols’s brief, at 14 (emphasis added). In counts two and three, Nichols alleges that the Department granted the reduction in fees to ChemWaste as the result of fraud perpetrated by ChemWaste, Young, and Bailey. The complaint alleges that “[t]he tax reduction will deprive the State of Alabama and its taxpayers of millions of dollars in revenues over the life of the landfill. As a result, the State and its taxpayers have been damaged.” The fraud counts include demands for compensatory and punitive damages, which, according to Nichols, are “claim[s] for monetary relief on behalf of the State.” Nichols’s brief, at 23.

In response to Nichols’s complaint, ChemWaste filed a motion to dismiss, alleging, in pertinent part, that Nichols has no standing to bring his action. The Department filed an answer and a petition for realignment of the parties. In its answer, the Department stated, in pertinent part:

“[I]t is respectfully submitted that the dismissal argument by ChemWaste that [Nichols] ‘has no standing to bring his declaratory judgment action,’ if granted by the court, would necessarily be dis-positive of the single cause of action asserted in the complaint against the Department. Therefore, if the court should so rule then the Department requests that such a resulting dismissal order should likewise dismiss the complaint as to the declaratory judgment action asserted against the Department.”

In its petition for realignment, the Department sought to be realigned as a plaintiff “in the ... event that the complaint for declaratory judgment is not dismissed as a result of the ‘lack of standing’ dismissal ground asserted by ChemWaste.”

On March 11, 2005, the trial court denied ChemWaste’s motion to dismiss. Then, on March 24, 2005, the trial court granted the Department’s motion to realign it as a plaintiff. On April 15, Chem-Waste timely filed its petition for a writ of mandamus.

Mandamus review is available when the question presented is one of subject-matter jurisdiction.

“ ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805 (Ala.2000).”

Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003)(emphasis added). “When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999). Under such a circumstance, the trial court has “no alternative but to dismiss the action.” 740 So.2d at 1029.

“To say that a person has standing is to say that that person is a proper party to bring the action. To be a proper party, the person must have a real, tangible legal interest in the subject matter of the lawsuit.” Doremus v. Business Council of Alabama Workers’ Comp. Self-Insurers Fund, 686 So.2d 252, 253 (Ala.1996). Specifically, “[standing ... turns on ‘whether the party has been injured in fact and whether the injury is to a legally protected right.’ Property at 2018 Rainbow Drive, 740 So.2d at 1027 (quoting Romer v. Board of County Comm’rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998)(Kourlis, J., dissenting)).

This Court has previously addressed the issue of taxpayer standing. See, e.g., Doremus. ChemWaste contends that, “[u]nder the authority of [Doremus ], [Nichols] has no standing.” Petition for writ of mandamus, at 9. We disagree.

In Beckerle v. Moore, 909 So.2d 185, 188 (Ala.2005), this Court described Doremus as holding “that a taxpayer did not have standing to sue to collect taxes owed the State.” In so holding, the Doremus Court explained:

“While it is firmly established that an Alabama taxpayer has standing to bring an action against the State challenging expenditures of State funds, Hunt v. Windom, 604 So.2d 395 (Ala.1992); Zeigler v. Baker, 344 So.2d 761 (Ala.1977), it is also established that an Alabama taxpayer, such as Doremus, has no standing to bring a lawsuit against the State and another Alabama taxpayer seeking the collection of State taxes allegedly owed by the other taxpayer, even though the State fails to act. The exclusive power and authority to sue for collection of State taxes lies with the State. Powers v. United States Fid. & Guar. Co., 236 Ala. 389, 182 So. 758 (1938); State v. Colonial Refrigerated Transportation, Inc., 48 Ala.App. 46, 261 So.2d 767 (1971). In Powers, this Court stated the following regarding a taxpayer’s action, brought on behalf of the plaintiff and all other Alabama taxpayers, seeking to collect money allegedly owed to the State by the surety on a bond:
“ “While we have held that a taxpayer’s suit to enjoin State officers is available under certain conditions, we do not think that the right to sue in equity to exact payment of a debt due the State is subject to the same principles which sustain a suit for city funds....
‘We do not think, however, that a citizen and taxpayer has the legal and constitutional right to assume the burden or privilege of enforcing an obligation due to the corporate State, and for its benefit.’
236 Ala. at 392-93, 182 So. at 761 (emphasis added).”

686 So.2d at 253 (footnotes omitted).

ChemWaste’s reliance upon Doremus is misplaced, because “[t]he taxpayer in this case, Nichols, did not bring an action to seek collection of taxes owed by Chem-Waste that the [Department] had failed to collect.” Nichols’s brief, at 11. Indeed, Nichols’s complaint is that instead of failing to collect taxes the Department “reduced the tax rate (which was set by the Legislature) the State charged on certain types of wastes received for disposal at Emelle.” Nichols’s brief, at 12. Therefore, Nichols argues, ChemWaste has been granted an unlawful tax reduction, which he argues should be declared invalid. This declaratory relief is requested in count one of Nichols’s complaint. This Court was faced with no such claim in Doremus.

In Henson v. HealthSouth Medical Center, Inc., 891 So.2d 863, 868 (Ala.2004), this Court held “that a taxpayer has standing to challenge a tax abatement conferred upon another taxpayer comparable to the previously recognized standing to challenge the expenditure of public funds so long as the taxpayer can demonstrate a probable increase in his tax burden from the challenged activity.” In count one of his complaint, Nichols, citing Henson, alleges that “[a] taxpayer has standing to bring an action alleging that a governmental entity has wrongly granted a tax reduction to another taxpayer and requesting that the tax reduction be declared void.” However, in its petition, ChemWaste argues that Nichols’s reliance upon Henson is misplaced, stating:

“There are three reasons why Henson does not apply to this case: (1) Henson created only a narrow exception to Do-remus for taxpayers to challenge an improper abatement, and this case does not involve an abatement; (2) this Court has distinguished Henson from Dore-mus on the basis that the plaintiff in Henson sought no monetary recovery, ■while the plaintiff here seeks compensatory and punitive damages; and (3) the [rate reduction] does not in fact cause the taxpayer/plaintiff to pay more taxes, a prerequisite for standing established in Henson.”

Petition for writ of mandamus, at 16-17. ChemWaste’s arguments are not persuasive.

In Henson, HealthSouth had applied for, and been granted, “a tax abatement pursuant to the Tax Incentive Reform Act of 1992, § 40-9B-1 et seq., Ala.Code 1975 (‘TIRA’).” 891 So.2d at 864. “Abatement” is defined in TIRA as “[a] reduction or elimination of a taxpayer’s liability for tax.” § 40-9B-3(l). In holding that a taxpayer has standing to challenge a tax abatement conferred upon another taxpayer, the Court noted that “ ‘[f]or the purposes of an analysis of standing, ... granting of tax abatement does not differ significantly from an expenditure of public funds, since in either case the conduct complained of could result in the treasury’s containing less money than it ought to.’ ” Henson, 891 So.2d at 868 (quoting Sommer v. City of St. Louis, 631 S.W.2d 676, 680 (Mo.Ct.App.1982)) (emphasis added in Henson).

ChemWaste argues that the Department’s decision concerning the tax rate to be applied to decharacterized waste “was not an abatement of taxes otherwise rightfully owed, but rather an interpretation of what was rightfully owed under the statute.” Petition for writ of mandamus, at 2. Similarly, ChemWaste explains:

“Simply exempting a taxpayer for what otherwise is legally owed is not what happened in this case. In this case, the Department examined statutory language and determined one tax, rather than another, was legally owed. It was not an abatement, but rather the Department’s interpretation of the statute and what was legally owed under that statute.”

Petition for writ of mandamus, at 18. Obviously, ChemWaste admits, as it must, the statutory basis of the waste-disposal fees. However, it contends that Nichols has no standing to challenge the Department’s current interpretation of the statute as requiring that fees on decharacterized waste be imposed at the rate of $21 per ton, instead of the $51-per-ton rate previously imposed on such waste under the Department’s prior interpretation of the same statute.

If the Department’s current interpretation and resulting application of the relevant statute ’ are incorrect, then it would appear that the Department will collect less money than it should with regard to ChemWaste’s disposal of decharacterized waste. Therefore, the recognition of Nichols’s standing to challenge the Department’s decision is consistent with, rather than contrary to, the reasoning in Henson. The cause of any decrease in tax revenues is immaterial to an analysis of the standing issue.

ChemWaste argues that ‘Henson is in-apposite!!, because] the plaintiff in Henson sought no monetary recovery, while [Nichols] seeks a backdoor recovery of compensatory and punitive damages.” Chem-Waste’s reply brief, at 5-6. However, as previously noted, in count one of his complaint, Nichols seeks “only a declaration that the tax abatement was wrongfully granted and is void.” Count one contains no claim for monetary relief.

Also, ChemWaste argues that Nichols “has not pled sufficient facts to demonstrate that the [Department’s interpretation of the statute] cause[s] him to pay more taxes, a prerequisite for standing established in Henson.” ChemWaste’s reply brief, at 6. It is true that, under Henson, “the taxpayer [must] demonstrate a probable increase in his tax burden from the challenged activity.” Henson, 891 So.2d at 868. In Nichols’s complaint, he alleges:

“25. As a taxpayer, [Nichols] is liable to replenish the public treasury for the tax reduction that was wrongfully granted to ChemWaste. The tax reduction has resulted in a probable net increase in [Nichols’s] taxes since the reduction went into effect.”

Nichols’s allegations are more specific than the general allegations in Henson’s complaint and, thus, are sufficient to withstand ChemWaste’s motion to dismiss. See Henson, 891 So.2d at 868-69.

Finally, ChemWaste argues that, “[e]ven if [Nichols] somehow has standing to make a declaratory judgment claim ..., he has no standing to make fraud and conspiracy claims.” Petition for writ of mandamus, at 23. According to Chem-Waste, “only the Attorney General or other attorneys designated by the State may sue to recover monies owed the State.” Id. However, in his brief, Nichols no longer claims to have standing to bring fraud and conspiracy actions on behalf of the State. Instead, Nichols argues that, because he has standing to bring his declaratory-judgment action, and because the Department has been realigned as a plaintiff, “the State ... will be free to pursue the fraud and conspiracy actions on its own.” Nichols’s brief, at 28. Thus, Nichols argues, the issue of his standing to pursue the tort claims is moot. We agree.

For the foregoing reasons, ChemWaste has failed to show that it has a clear legal right to an order dismissing the action filed against it by Nichols. Therefore, the petition for the writ of mandamus filed by ChemWaste is denied.

PETITION DENIED.

HARWOOD, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

NABERS, C.J., and SEE and LYONS, JJ., dissent.

SEE, Justice

(dissenting).

I respectfully dissent.

Chemical Waste Management, Inc., operates a waste treatment, storage, and disposal facility that handles both hazardous and nonhazardous waste. ChemWaste must pay the State of Alabama a fee on all of the waste it receives for disposal at its facility. The parties agree that those fees are $51 per ton for hazardous waste and $21 per ton for nonhazardous waste. In 1999, ChemWaste petitioned the Alabama Department of Revenue for a refund of fees it had allegedly improperly paid to the Department for the disposal of decharac-terized waste, and for a ruling as to future waste-disposal fees for decharacterized waste. The Department and ChemWaste resolved the petition by agreement. Under the agreement, the Department did not refund any of the $51-per-ton fee that ChemWaste had paid on decharacterized waste, but the Department and Chem-Waste agreed that decharacterized waste in the future should be subject to the $21-per-ton nonhazardous-waste fee.

John Nichols, an Alabama taxpayer, sued ChemWaste and the Department, challenging the Department’s agreement with ChemWaste. Nichols alleged that the Department’s decision to impose on ChemWaste a fee of $21 per ton for de-characterized waste instead of the $51-per-ton fee is inconsistent with § 22-30B-2(c), Ala.Code 1975, and thus is void. ChemWaste moved the trial court to dismiss Nichols’s complaint on the ground that Nichols lacks standing. The trial court denied ChemWaste’s motion. Chem-Waste then filed this petition for a writ of mandamus.

In Henson v. HealthSouth Medical Center, Inc., 891 So.2d 863 (Ala.2004), this Court found the following language in Henson’s complaint sufficient to withstand a motion to dismiss on the basis of lack of standing:

“ ‘The prosecution of this action by [Henson] and the relief granted by the Court [will] provide[ ] a substantial profit to the general public, including citizens of Birmingham and Jefferson County.’ ”

891 So.2d at 868. The Henson Court held: “[A] taxpayer has standing to challenge a tax abatement conferred upon another taxpayer comparable to the previously recognized standing to challenge the expenditure of public funds so long as the taxpayer can demonstrate a probable increase in his tax burden from the challenged activity.” Henson, 891 So.2d at 868. Nichols’s complaint avers that he has standing because,

“[a]s a taxpayer, [Nichols] is liable to replenish the public treasury for the tax reduction that was wrongfully granted to ChemWaste. The tax reduction has resulted in a probable net increase in [Nichols’s] taxes since the reduction went into effect.”

ChemWaste’s Petition, Appendix 1, Nichols’s complaint at paragraph 25. The main opinion concludes that “Nichols’s allegations are more specific than the general allegations in Henson’s complaint and, thus, are sufficient to withstand Chem-Waste’s motion to dismiss.” 929 So.2d at 1012.

Henson, however, is markedly different from this case. HealthSouth owned and operated several hospitals in Alabama, some of which are located in Birmingham. HealthSouth proposed closing one of its Birmingham hospitals to build a new one in another Birmingham location and applied to the Industrial Development Board of the City of Birmingham for a tax abatement pursuant to the Tax Incentive Reform Act of 1992, § 40-9B-1 et seq., Ala. Code 1975 (“TIRA”). The Board granted HealthSouth a tax abatement in the amount of $30,390,000. Henson alleged that the abatement was illegally granted. 891 So.2d at 864-65.

This Court distinguished Henson from Doremus v. Business Council of Alabama Workers’ Compensation Self-Insurers Fund, 686 So.2d 252 (Ala.1996). In Dore-mus, a taxpayer sued the Business Council of Alabama Workers’ Compensation Self-Insurers Fund (“BCA Fund”), the attorney general of Alabama, and the commissioner of the Alabama Department of Insurance, alleging that the State had failed to collect a 1% tax on premiums received by the BCA Fund. Doremus claimed that the BCA Fund, as a “domestic insurer,” was required under § 27-4-5, Ala. Code 1975, to pay a tax of 1% on all premiums it received prior to January 1, 1995. The Doremus Court held that a taxpayer has no standing to sue the State and another taxpayer to collect taxes owed to the State by the other taxpayer. Doremus, 686 So.2d at 253. Henson distinguishes Dore-mus, stating:

“Doremus would be persuasive authority if the facts here involved a claim by one taxpayer against another taxpayer as to whom the plaintiff claimed that the taxing authority was refusing to enforce clearly applicable tax laws. Put another way, Henson is not arguing that Health-South owes outstanding taxes that the State refuses to collect. Such facts are not present in this case because the tax abatement authorized by TIRA excuses HealthSouth from liability for the taxes abated. Instead, Henson argues that HealthSouth has been granted an unlawful tax abatement and is seeking to have the abatement declared invalid.”

891 So.2d at 866. The distinction the Henson Court draws between that case and Doremus is that Henson, in which this Court held that the taxpayer had standing, was an abatement case, whereas Doremus was — like the case before us today — a tax-collection case.

The distinction between Henson and Doremus is precisely the same distinction that exists between Henson and this case. Like the plaintiffs in Doremus, Nichols is arguing that the State of Alabama is refusing to collect the full amount of tax Chem-Waste owes the State. Regardless of how Nichols chooses to characterize his challenge in his complaint, Nichols is essentially arguing that under § 22-30B-2(c), Ala. Code 1975, the Department should collect the higher $51-per-ton fee on Chem-Waste’s deeharaeterized waste rather than the $21-per-ton fee the Department has agreed to collect. According to the reasoning in Henson, because Nichols is not truly arguing that ChemWaste was granted an unlawful tax abatement,, but is essentially alleging that ChemWaste owes the State taxes the State is refusing to collect, Doremus applies. Henson, 891 So.2d at 866. According to this Court’s holding in Doremus, Nichols lacks standing as a taxpayer to sue ChemWaste and the Department to seek, the collection of taxes allegedly owed to the State by another taxpayer, ChemWaste. Doremus, 686 So.2d at 253 (“it is ... established that an Alabama taxpayer, such as Doremus, has no standing to bring a lawsuit against the State and another Alabama taxpayer seeking the collection of State taxes allegedly owed by the other taxpayer”) (citing Powers v. United States Fid. & Guar. Co., 236 Ala. 389, 182 So. 758 (1938)) (emphasis in Doremus).

Not only does the holding in Henson compel denying Nichols standing, but this Court’s precedent concerning general taxpayer standing also precludes granting standing to Nichols. Although federal courts have consistently construed taxpayer standing narrowly and required that a plaintiff show a direct injury in order to establish standing, Alabama has adhered to a broader concept of taxpayer standing. It is well established that an Alabama taxpayer has standing to, bring an action against the State challenging expenditures of State funds. Doremus v. Business Council of Alabama Workers’ Comp. Self-Insurers Fund, 686 So.2d at 253 (citing Hunt v. Windom, 604 So.2d 395 (Ala.1992); Zeigler v. Baker, 344 So.2d 761 (Ala.1977)). This Court stated in Zeigler: “In a long line of decisions this Court has recognized the right of the taxpayer to challenge, either as unconstitutional or as not conforming to the statute, the expenditure of public funds by county officers. The right of a taxpayer to challenge the unlawful disbursement of state funds likewise is unquestioned.” 344 So.2d at 763-64 (citations omitted). However, Nichols is not challenging an expenditure, or disbursement, of State funds; thus, the holding in Zeigler does not apply. Broxton v. Siegel- man, 861 So.2d 376, 386 (Ala.2003) (“As we view our caselaw, the requirement for standing in a taxpayer lawsuit is the expenditure of state funds-”). Instead, the general law of standing applies to Nichols: “ ‘To say that a person has standing is to say that that person is a proper party to bring the action. To be a proper party, the person must have a real, tangible legal interest in the subject matter of the lawsuit.’ ” Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1019 (Ala.2003) (quoting Doremus, 686 So.2d at 253); Eagerton v. Williams, 433 So.2d 436, 447 (Ala.1983) (“The rule is well settled that to be a proper party plaintiff [who has standing to sue], a person must have an interest in the right to be protected.”) (citing Bagley v. City of Mobile, 352 So.2d 1115 (Ala.1977)).

The majority today substantially expands Alabama’s general taxpayer-standing doctrine by giving Nichols standing to bring the action despite the fact that he has no tangible interest in the subject matter of the action. Nichols was not a party to the settlement agreement between the Department and ChemWaste, nor did he otherwise suffer a direct injury as a result of the settlement. The Department assessed ChemWaste’s tax liability under § 22-30B-2(c), Ala.Code 1975. The assessment was independent of any consideration of Nichols’s tax liability, and Nichols suggests no such connection beyond his own speculation that “[a]s a taxpayer, [Nichols] is liable to replenish the public treasury for the tax reduction that was wrongfully granted to Chem Waste.” The main opinion nonetheless holds that in the absence of a direct injury to Nichols and, therefore, in the absence of an actual case or controversy between Nichols and the State, Nichols has standing to sue the Department simply because he, like any other taxpayer, may see an increase in the general tax rates to retain revenues at the level at which they would have been had ChemWaste’s tax payment remained at the higher rate. This is an unlikely scenario; it presumes that the legislature routinely raises tax rates to make up every shortfall in revenue from an individual taxpayer. In fact, the legislature may, instead of raising taxes, base future expenditures on actual revenues, and, if necessary, allow proration in the present period to reduce present expenditures to the level of actual present revenue. That a settlement between an individual and the Department will cause a tax increase is, in the present political climate, the rankest speculation. If the bald averment in the complaint that, “[a]s a taxpayer, [Nichols] is liable to replenish the public treasury for the tax reduction that was wrongfully granted to” another taxpayer is sufficient to bestow standing, then this Court has authorized any taxpayer in Alabama to litigate every interpretation of every other taxpayer’s tax liability and has put the judiciary squarely in the middle of the executive branch’s performance of its constitutional function to execute the laws.

The Alabama Constitution expressly adopts the separation-of-powers principle that is implicit in the Constitution of the United States. Opinion of the Justices No. 380, 892 So.2d 332, 334 n. 1 (Ala.2004). Section 42, Alabama Constitution 1901, states:

“The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.”

The Alabama Constitution explicitly prohibits the judiciary from exercising the executive powers. Section 43 states:

“In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.”

This Court recently said that “ ‘ “[gjreat care must be exercised by the courts not to usurp the functions of other departments of government.... No branch of the government is so responsible for the autonomy of the several governmental units and branches as the judiciary.” ’ ” Birmingham-Jefferson Civic Ctr. Auth. v. City of Birmingham, 912 So.2d 204, 212 (Ala.2005) (quoting Piggly Wiggly No. 208, Inc. v. Dutton, 601 So.2d 907, 911 (Ala.1992), quoting in turn Finch v. State, 271 Ala. 499, 503, 124 So.2d 825, 829 (1960)). Thus, just as this Court will declare legislative usurpation of the judicial power vio-lative of the separation-of-powers provision of our Constitution, see Ex parte Jenkins, 723 So.2d 649 (Ala.1998), and will decline to exercise the judicial power when to do so would infringe upon the exercise of the legislative power, see Birmingham-Jefferson Civic Ctr. Auth., 912 So.2d at 212, so this Court must decline to interfere in the exercise of the executive power.

Each branch of government is entrusted with a core power. The core power of the executive branch is the execution of the laws. McInnish v. Riley, 925 So.2d 174 (Ala.2005) (citing Opinion of the Justices No. 380, 892 So.2d at 335). The Department, as part of the executive branch, see Ala.Code 1975, § 40-2-1 et seq., is charged with the execution of the tax laws. Ala.Code 1975, § 40-2-11. The Department has the authority and discretion to implement the applicable statute, § 22-30B-2(c), Ala.Code 1975, and to arrive at a settlement with ChemWaste regarding the rate of the fee charged for different types of waste. In the absence of a direct injury or an actual case or controversy, judicial review of Nichols’s complaint is an impermissible intrusion into the functioning of the executive branch.

I would hold that Nichols lacks standing to pursue his claim against ChemWaste and the Department and, consistent with the separation of powers, that this Court lacks jurisdiction to resolve this matter.

For the foregoing reasons, I respectfully dissent.

NABERS, C.J., concurs.

LYONS, Justice

(dissenting).

I must respectfully dissent.

I agree with ChemWaste that Henson v. HealthSouth Medical Center, Inc., 891 So.2d 863 (Ala.2004), albeit an action, like the one here, seeking no monetary relief, is nevertheless distinguishable, because we are- not in this case dealing with an improper abatement, giving rise to a total escape by the taxpayer from tax liability. Instead, we are confronted with a determination by the taxing authority as to the appropriate liability of ChemWaste under the taxing authority’s interpretation of the tax laws, an interpretation Nichols says is inconsistent with the intent of the legislature.

The rule is well settled with respect to the federal tax laws that “[a] taxpayer generally has no standing to challenge the tax liability determination of another taxpayer. Al-Kim, Inc. v. United States, 650 F.2d 944, 947 (9th Cir.1979); Graham v. United States, 243 F.2d 919, 922 (9th Cir.1957).” Ravetti v. United States, 37 F.3d 1393, 1395 (9th Cir.1994). See also In re United States Catholic Conference, 885 F.2d 1020, 1028 (2d Cir.1989), rejecting a taxpayer’s standing where the taxpayer contended that the Internal Revenue Service had made a decision in conflict with the intent of Congress with respect to the tax liability of another taxpayer, the United States Catholic Conference.

Our precedent is equally hostile to such interference, although thus far the issue has been addressed only in the context of the availability of a claim for money damages. See Doremus v. Business Council of Alabama Workers’ Comp. Self-Insurers Fund, 686 So.2d 252 (Ala.1996). I would hold, as a matter of first impression, that the fact that Nichols framed his claim so as to seek only prospective declaratory relief is inconsequential, because such a limitation does not prevent the inappropriate meddling by one taxpayer in the relationship of another taxpayer with the taxing authorities. I would hold that this Court lacks subject-matter jurisdiction, relegating to the ballot box, and not the courthouse, Nichols’s discontent with the judgment of the taxing authorities as to the applicability of the tax laws to another taxpayer.

      . The parties refer to these fees as taxes, and in this opinion we will use the terms "fees" and "taxes” interchangeably to refer to the amounts required to be paid pursuant to § 22-3OB-2.

      . The State of Alabama levies the fees pursuant to § 22-30B-2(c), Ala.Code 1975.

      . Decharacterized waste is hazardous waste that ChemWaste receives and treats so that, at the time of disposal, it is no longer classified as hazardous. ChemWaste's petition, at 2.

      .The Henson Court cited Sommer v. City of St. Louis, 631 S.W.2d 676 (Mo.Ct.App.1982), for 'the proposition that a taxpayer has standing where the taxpayer can show that the challenged activity will increase his tax burden. 891 So.2d at 868. However, the court in Sommer did not confer standing on the taxpayer; it found that a net loss of revenue to the City of St. Louis was merely a probable, and not a necessary, result of the challenged activity. Id.

      . TIRA authorizes “the governing body of a municipality, a county, or a public industrial authority [to] grant abatements of all of the taxes allowed to be abated under Section 40-9B-4 with respect to private use industrial property.” § 40-9B-5(a), Ala.Code 1975. Section 40-9B-4, Ala.Code 1975, contains limitations on what taxes may abated.

      . See Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) ("[A]t an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.' ”) (quoting Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979)); and Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 219-20, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974) ("It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained, or is immediately in danger of sustaining, a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public.”).

      . "We note that the federal courts narrowly construe taxpayer standing to require a distinct injury to the plaintiff, ... but this Court ... has recognized a broader concept of taxpayer standing.” Knutson v. Bronner, 721 So.2d 678, 680 n. 3 (Ala.1998).


source: Caselaw Access Project

author: CRAWLEY, Presiding Judge.

license: Public Domain

text:
    L.A. v. R.H. and E.H.
    2040900.
    Court of Civil Appeals of Alabama.
    Nov. 10, 2005.

      Valerie L. Goudie, Anniston, for appellant.
    Peggy P. Miller, Anniston, for appellees.
   CRAWLEY, Presiding Judge.

L.A. has custody of her children A.L.B. and D.R.B. (“the children”), the grandchildren of R.H. and E.H. (“the grandparents”). The grandparents have been awarded court-ordered visitation with the children. On May 6, 2005, the grandparents were notified by a letter sent via facsimile from L.A.’s attorney to the grandparents’ attorney that L.A. and her husband, W.A., would not be bringing the children for visitation with the grandparents that weekend. Although the grandparents’ attorney explained to L.A.’s attorney that visitation was required by the visitation order and that the parties had not agreed to alter the visitation schedule, L.A. and W.A. did not bring the children to the designated visitation-exchange location at the appointed time on May 6. The grandparents brought a contempt action against L.A. After the parties presented their factual stipulations, the trial court found L.A. to be in contempt, fined her $100, and ordered her to pay the grandparents’ attorney fees. L.A. appeals.

The factual stipulations reveal that the weekend of May 6-8, 2005, was a weekend during which the grandparents were entitled to visitation under the visitation order. That weekend was also Mother’s Day weekend. W.A. made plans for the children to spend Mother’s Day with L.A. Although L.A. reminded W.A. that the weekend was a visitation weekend under the visitation order, W.A. said that he was not going to allow visitation to occur and said that he would accept the consequences. Notably, it appears that W.A. is not subject to the visitation order.

Rule 70A, Ala. R. Civ. P., governs contempt proceedings that arise out of civil actions. Rule 70A(a)(2)(C)(ii) defines criminal contempt as “[wjillful disobedience or resistance of any person to a court’s lawful writ, subpoena, process, order, rule, or command, where the dominant purpose of the finding of contempt is to punish the contemnor.” In order to establish that a party is in criminal contempt of a court order, a contempt petitioner must prove beyond a reasonable doubt that the party against whom they are seeking a finding of contempt was subject to a “ ‘lawful order of reasonable specificity,’ ” that the party violated that order, and that the party’s violation of the order was willful. Ex parte Ferguson, 819 So.2d 626, 629 (Ala.2001) (quoting United States v. Turner, 812 F.2d 1552, 1563 (11th Cir.1987)).

L.A. argues first that the factual stipulations did not establish that she willfully disobeyed the court’s visitation order. According to L.A., she did not actively participate in the decision to deny the grandparents visitation. Instead, she says, she “passive[ly] accepted ... her husband’s [decision to deny visitation].” Thus, she argues, she cannot be held in criminal contempt.

This argument is specious. L.A. acknowledged that she knew that the visitation order required that the children be delivered to the grandparents for the May 6-8 weekend. Despite this acknowledged fact, L.A., encouraged by W.A.’s insistence, failed to take any action to deliver the children to the grandparents. Her “passive” acceptance of W.A.’s chosen course of action actively denied visitation to the grandparents. The stipulated facts are clear — L.A. willfully disobeyed a court’s lawful visitation order. The trial court’s finding of criminal contempt is irrefutable. We therefore affirm the contempt judgment.

L.A. correctly argues that the trial court’s contempt judgment impermissibly orders her to pay the grandparents’ attorney fees. See Ex parte Collins, 860 So.2d 1259, 1260 (Ala.2003) (reaffirming an earlier holding that the award of an attorney fee is not proper in a criminal contempt case and noting that the attorney-fee award does not void the contempt judgment). The grandparents concede this error. Accordingly, that portion of the trial court’s contempt judgment awarding the grandparents an attorney fee is reversed, and the cause is remanded.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


author: THOMPSON, Judge.

text:
    Teresa TROUSDALE v. Dexter TUBBS.
    2040744.
    Court of Civil Appeals of Alabama.
    Nov. 10, 2005.

      Thomas W. McCutcheon, Florence, for appellant.
    Submitted on appellant’s brief only.
   THOMPSON, Judge.

Teresa Trousdale (“the mother”) and Dexter Tubbs (“the father”) were divorced by a June 1999 judgment of the trial court. The divorce judgment awarded the mother custody of the two children born of the parties’ marriage. The record indicates that modifications following that divorce judgment resulted in custody of the parties’ son being transferred to the father and then later returned to the mother; it appears that the parties have been engaged in litigation almost continuously since their divorce and that the mother has retained custody of the parties’ daughter throughout that period.

On November 25, 2003, the mother filed a petition seeking a modification of previous judgments. In that petition, the mother sought a modification of child support and a determination that the father be held in contempt for an alleged failure to pay child support. On October 25, 2004, the trial court entered an order that incorporated a settlement agreement reached by the parties. The October 25, 2004, order provided, among other things, that the father receive custody of the parties’ son; that the father pay $80 per week in child support for the parties’ daughter; and that “[a]ll other provisions not specifically modified herein shall remain in full force and effect.” The October 25, 2004, order did not mention the issue of a child-support arrearage.

On November 19, 2004, the mother filed a motion seeking to “set aside” the October 25, 2004, order. In that motion, the mother alleged that the agreement upon which the October 25, 2004, order was based was procured by fraud. Specifically, she alleged that at the time of the agreement, the parties’ son was living with the father, that the son had returned to her home, and that the father had “planned” to return the son to her custody at the time he entered into the settlement agreement. Also on November 19, 2004, the mother filed a petition to modify in which she again sought to have the father held in contempt and sought a modification of child support.

On May 9, 2005, the trial court conducted a hearing at which it heard the arguments of counsel and received ore tenus evidence on the mother’s motion to “set aside” and her petition to modify. The record indicates that the trial court treated the mother’s November 19, 2004, petition to modify as a part of her November 19, 2004, motion to “set aside” the October 25, 2004, order rather than as a separate filing. At the May 9, 2005, hearing, the mother argued that the order should be set aside because of the alleged fraud pertaining to the custody issue. She also argued, for the first time, that the October 25, 2004, order should be set aside because it did not address the issue of past-due child support. The mother maintained that the language in the October 25, 2004, order stating that “the parties have reached an agreement as to all issues pending before the Court” was a clerical error. The father objected to the mother’s raising the purported clerical error for the first time at the hearing, and he pointed out to the trial court that the mother’s attorney had drafted the settlement agreement upon which the trial court had based its October 25, 2004, order.

At the hearing, the trial court allowed the mother to make an offer of proof with regard to the issue of the alleged child-support arrearage. The trial court asked the mother to present evidence pertaining to her allegation that the father had committed fraud with regard to the custody issue; she presented little evidence relevant to that issue.

On May 13, 2005, the trial court entered an order in which it modified custody of the parties’ son, ordered the father to pay child support until the son reached the age of majority, and denied the mother’s motion to set aside the October 25, 2004, order. In its May 13, 2005, order, the trial court noted that it had not, in its October 25, 2004, order, ruled upon the mother’s claim seeking a child-support arrearage. The mother appeals.

On appeal, the mother argues that the trial court erred in refusing to consider the issue of the father’s alleged child-support arrearage. The mother cites to Ex parte State ex rel. Lamon, 702 So.2d 449 (Ala.1997). In that case, our supreme court held:

“It is well settled that child support payments become final judgments on the day they are due and may be collected as any other judgment is collected; and that payments that mature or become due before the filing of a petition to modify are not modifiable. See State ex rel. Howard v. Howard, 671 So.2d 83 (Ala.Civ.App.1995); Cunningham, v. Cunningham, 641 So.2d 807 (Ala.Civ.App.1994); Glenn v. Glenn, 626 So.2d 638 (Ala.Civ.App.1993); Frasemer v. Frasemer, 578 So.2d 1346 (Ala.Civ.App.1991); Barnes v. State ex rel. State of Virginia, 558 So.2d 948 (Ala.Civ.App.1990); Endress v. Jones, 534 So.2d 307 (Ala.Civ.App.1988). Furthermore, it is well settled that a trial court has no power to forgive an accrued arrearage. See, State ex rel. McDaniel v. Miller, 659 So.2d 640 (Ala.Civ.App.1995); Hardy v. Hardy, 600 So.2d 1013 (Ala.Civ.App.1992), cert. denied, Ex parte Hardy, 600 So.2d 1016 (Ala.1992).”

702 So.2d at 450-51.

However, we do not reach the mother’s argument. “An appeal ordinarily will lie only from a final judgment — i.e., one that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.” Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). “The issue of whether a judgment is final is jurisdictional.” Hardy v. State ex rel. Chambers, 541 So.2d 566, 567 (Ala.Civ.App.1989). Matters of jurisdiction are of such importance that a court may consider them ex mero motu. Bacadam Outdoor Adver., Inc. v. Kennard, 721 So.2d 226 (Ala.Civ.App.1998) (citing Nunn v. Baker, 518 So.2d 711 (Ala.1987), and Wallace v. Tee Jays Mfg. Co., 689 So.2d 210 (Ala.Civ.App.1997)). When an appellate court determines that an order from which an appeal is taken is not final and will not support an appeal, that court must dismiss the appeal on its own motion. Hardy v. State ex rel. Chambers, supra.

In this case, the trial court has yet to rule with regard to the issue of a child-support arrearage; therefore, the May 13, 2005, order from which the mother appealed is not a final judgment capable of supporting the appeal. Accordingly, we must dismiss this appeal.

APPEAL DISMISSED.

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


author: PITTMAN, Judge.

text:
    J.B. v. F.B. and A.B.
    2040448.
    Court of Civil Appeals of Alabama.
    Nov. 18, 2005.
    Joshua J. Lane, Anniston, for appellant.
    Leon Garmon, Gadsden, for appellees.
   PITTMAN, Judge.

J.B. appeals from a judgment of the Etowah Probate Court granting an adoption petition as to S.E.E., a child born on August 2, 2002. This is the second appeal to come before this court arising out of a dispute between the same parties over the custody of S.E.E. See J.B. v. A.B., 888 So.2d 528 (Ala.Civ.App.2004) (“J.B. I”).

A brief factual summary will establish the procedural posture of this appeal. C.E. (“the mother”) was married to S.E. (“the former husband”) for approximately nine years until their divorce in 1998. Following the divorce, C.E. had sexual relations with several men, including J.B. The mother gave birth to S.E.E. (“the child”) on August 2, 2002; the father’s name was listed as “unknown” on the child’s birth certificate. Around the time of the child’s birth, the mother and the former husband began cohabiting again; the couple have purportedly established a common-law marriage since that time. The mother, the former husband, J.B., and the child all live in Missouri.

On December 11, 2002, A.B. (the former husband’s sister) and F.B. (A.B.’s husband), both of whom are residents of Eto-wah County, filed a petition in the Etowah Juvenile Court “for [a] change of custody by consent.” The petition was signed by A.B., F.B., and their adult son, C.B.; the child’s mother had signed the petition on December 4, 2002. The Etowah Juvenile Court issued an order declaring the child to be dependent and awarding A.B. and F.B. temporary custody of the child on December 11, 2002. A.B. traveled to Missouri to pick up the child on December 14, 2002, and the child has remained with A.B. and F.B. since that time. The results of a blood test conducted in December 2002 indicated that J.B., rather than the former husband, was the biological father of the child. J.B. filed a petition to determine paternity, child custody, and child support in Missouri on December 31, 2002.

In April 2003, after learning of the child’s relocation to Alabama, J.B. filed a motion pursuant to Rule 60, Ala. R. Civ. P., requesting that the Etowah Juvenile Court vacate the custody award of the child to A.B. and F.B. That motion was denied, and J.B. appealed. On February 27, 2004, this court dismissed the appeal with instructions to the juvenile court, holding that the December 11, 2002, order awarding custody to A.B. and F.B. was void because of the juvenile court’s lack of jurisdiction over the child. See J.B. 1

While J.B. I was pending on appeal, J.B. also pursued the paternity, child-custody, and child-support action that he had filed in Missouri in December 2002. On October 30, 2003, the Circuit Court of Johnson County, Missouri, entered a judgment establishing J.B. as the biological father of the child. In addition, that Missouri judgment determined that that court “has personal jurisdiction over each of the parties and jurisdiction over the subject matter.” However, the Missouri court specifically denied J.B.’s requests for an award of child custody and child support.

In March 2004, J.B. again filed a petition in the Missouri court requesting that that court order the return of the child to the State of Missouri and award custody of the child to J.B. pending further proceedings. However, the record reflects that in July 2004 the Missouri court set a hearing date of September 30, 2004, to hear arguments regarding a “motion for preliminary designation of home state of child.” In addition, the record reflects that the Etowah Juvenile Court entered an order on September 23, 2004, specifically staying further proceedings regarding the child until a decision could be made by the Missouri court.

On August 17, 2004, F.B. and A.B. filed a petition for adoption in the Etowah Probate Court (“the probate court”). In that petition, the father’s identity was not provided. The only attempt to serve the natural parents of the child was by publication in an Etowah County newspaper.

The Missouri court held a hearing regarding the home state of the child on November 24, 2004. During that hearing, A.B. recited a time line summarizing the two years of litigation surrounding the child; that time line included the filing of the Alabama adoption petition. That testimony was the first notice to J.B. of the adoption pending in Alabama.

On November 30, 2004, while specifically declining to submit to the jurisdiction of Alabama courts, J.B. filed a “notice of contest to adoption” in the probate court. In that notice, the J.B. indicated that the probate court should stay its adoption proceedings until the Missouri court could make a determination concerning the child’s domicile. However, on December 22, 2004, the probate court conducted an adoption hearing at which J.B., A.B., and F.B. were represented by legal counsel. Following the hearing, on January 5, 2005, the probate court entered a final judgment granting the petition to adopt the child and denying J.B.’s contest of the adoption.

The probate court’s judgment determined that J.B. had failed to file with the Alabama Putative Father Registry and had, therefore, given his irrevocable implied consent pursuant to § 26 — 10C—1 (i), Ala.Code 1975. In addition, the probate court noted that J.B. had not established a significant parental relationship with the child to overcome the implied consent to adoption. The adoption judgment concluded that the best interests of the child would be served by granting the adoption petition, and it ordered that the child’s name be changed to reflect A.B. and F.B.’s surname. Following the denial of his post-judgment motion, J.B. filed this appeal.

J.B. asserts that the probate court abused its discretion when it failed to stay the adoption proceedings until the Missouri court had made a determination regarding the child’s home state. Secondarily, J.B. asserts error in the probate court’s determination that he had failed to establish a significant parental relationship with the child. Finally, the father contends that the probate court improperly applied Alabama’s Putative Father Registry Act, § 26-10C-1 et seq., Ala.Code 1975, to this case. We conclude that J.B.’s first contention is dispositive and mandates reversal in this case.

As discussed more completely in J.B. I, Alabama’s Uniform Child Custody Jurisdiction and Enforcement Act (“the UC-CJEA”), § 30-3B-101 et seq., Ala.Code 1975, sets forth the criteria for deciding which state’s courts will have jurisdiction to make a child-custody determination. Except in certain exceptional circumstances not present here, § 30-3B-201(a), Ala.Code 1975, a part of the UCCJEA, provides that a court of this state has jurisdiction to make an initial custody determination only if:

“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
“(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, and:
“a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
“b. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
“(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208; or
“(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).”

(Emphasis added.)

In J.B. I, we determined that the home state of the child was Missouri; therefore, we held that, based upon lack of jurisdiction, the custody award made by the juvenile court was void. The pertinent facts have not changed in any material respect since that decision so as to permit a court of this state to exercise jurisdiction over the child. Moreover, the Missouri court previously had expressly exercised jurisdiction over the child when it entered its October 30, 2003, judgment declaring J.B. to be the biological father of the child and stating that it had “personal jurisdiction over each of the parties and jurisdiction over the subject matter.” The record reflects the fact that the Missouri court had held a hearing to determine the home state of the child; a judgment had not been entered before the probate court purportedly granted A.B. and F.B.’s adoption petition in this case. Once again, we note that an order entered by a court without jurisdiction is a nullity. Ex parte Norfolk S. Ry. Co., 816 So.2d 469, 472 (Ala.2001) (citing Ex parte Hornsby, 663 So.2d 966 (Ala.1995)).

In addition, a portion of the Alabama Adoption Code, § 26-10A-21, Ala.Code 1975, specifies:

“If, at any time during the pendency of the adoption proceeding, it is determined that any other custody action concerning the adoptee is pending in the courts of this state or any other state or country, any party to the adoption proceeding, or the court on its own motion, may move to stay such adoption proceeding until a determination has been made by an appropriate court with jurisdiction pursuant to the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA)[ ] or the Parental Kidnapping Prevention Act (PKPA).”

In this case, the probate court was notified of another ongoing proceeding in the Missouri court.

In light of our holding in J.B. I regarding lack of Alabama courts’ jurisdiction over the child, and in view of § 26-10A-21, Ala.Code 1975, we must conclude that the probate court did not have jurisdiction to enter a judgment of adoption because it did not have jurisdiction over the child at the time that it entered its judgment. Without jurisdiction, that judgment is void. A void judgment will not support an appeal. Carter v. Hilliard, 838 So.2d 1062, 1064 (Ala.Civ.App.2002). We therefore dismiss J.B.’s appeal to this court, but we direct the probate court to set aside its void judgment of January 5, 2005.

APPEAL DISMISSED WITH INSTRUCTIONS TO THE PROBATE COURT.

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

      . In March 2004, the child's birth certificate, issued by the State of Missouri, was amended to change the child’s name from S.E.E. to S.M.B. and to add J.B.’s name as the father of the child.

      . Following that decision, the Etowah Juvenile Court entered a new custody order awarding temporary custody of the child to A.B. and F.B. pending further judicial action in the matter. Apparently, no appeal from that custody order has been taken, and we do not address the validity of that order.

      . We note that the UCCJA has been repealed and replaced by the UCCJEA. See § 30-3B-101 etseq., Ala.Code 1975.


author: SHAW, Judge.

text:
    Gabrien Dona BIRDSONG v. STATE of Alabama.
    CR-04-0550.
    Court of Criminal Appeals of Alabama.
    May 27, 2005.

      Gabrien Dona Birdsong, pro se.
    Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   SHAW, Judge.

Gabrien Dona Birdsong appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his convictions in 2001 for murder made capital because it was committed during the course of a robbery; for attempted murder; for burglary in the first degree; and for robbery in the first degree. Birdsong was sentenced to life imprisonment without the possibility of parole for the capital-murder conviction, to 99 years’ imprisonment for the burglary conviction and the attempted-murder conviction, and to 50 years’ imprisonment for the robbery conviction. This Court affirmed Birdsong’s convictions and sentences on direct appeal in an unpublished memorandum issued on March 14, 2003. See Birdsong v. State (No. CR-01-0083), 876 So.2d 1184 (Ala.Crim.App.2003) (table). This Court issued a certificate of judgment on April 1, 2003.

Birdsong filed the present petition on March 10, 2004, claiming that his appellate counsel was ineffective for various reasons. After receiving a response from the State, the circuit court summarily denied the petition on December 14, 2004.

I.

Birdsong contends that his appellate counsel was ineffective for not pursuing certiorari review with the Alabama Supreme Court of this Court’s affirmance of his convictions and sentences. However, it is well settled that a defendant is not entitled to counsel on a discretionary appeal to the Alabama Supreme Court. See Jackson v. State, 612 So.2d 1356 (Ala.Crim.App.1992), and Cunningham v. State, 611 So.2d 510 (Ala.Crim.App.1992). Therefore, Birdsong could not be denied the effective assistance of counsel as a result of his appellate counsel’s not seeking cer-tiorari review, and the circuit court properly denied this allegation of ineffective assistance of appellate counsel.

II.

Birdsong also contends that his appellate counsel was ineffective for not raising in a motion for a new trial and then pursing on appeal several allegations of ineffective assistance of trial counsel.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court articulated two criteria that must be satisfied to show ineffective assistance of counsel. A defendant has the burden of showing (1) that his counsel’s performance was deficient and (2) that the deficient performance actually prejudiced the defense. To prove prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Furthermore, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” 466 U.S. at 689, 104 S.Ct. 2052. “The standards for determining whether appellate counsel was ineffective are the same as those for determining whether trial counsel was ineffective.” Jones v. State, 816 So.2d 1067, 1071 (Ala.Crim.App.2000), overruled on other grounds by Brown v. State, 903 So.2d 159 (Ala.Crim.App.2004).

A.

Birdsong contends that his appellate counsel should have argued that his trial counsel was ineffective for not objecting to the validity of his indictment. Specifically, Birdsong argues that the indictment was defective because, he says, “it failed to show that at least eleven (11) other grand jury members were present when the indictment was found, endorsed a true bill, signed by the foreman, or returned and filed in open court by the foreman” (C.ll), and, thus, he says, his trial counsel was ineffective for not objecting to the indictment. This argument is meritless.

Section 12-16-204, Ala.Code 1975, provides that “[t]he concurrence of at least 12 grand jurors is necessary to find an indictment, and when so found it must be endorsed ‘a true bill’ and the endorsement signed by the foreman.” Section 15-8-70, Ala.Code 1975, provides:

“All indictments must be presented to the court by the foreman of the grand jury in the presence of at least 11 other jurors, must be endorsed ‘filed’ and must have the endorsement dated and signed by the clerk; but no entry of an indictment found must be made on the minutes, nor must any indictment be inspected by any other person than the district attorney, the presiding judge and the clerk of the court until the defendant has been arrested or has given bail for his appearance.”

See also Rule 12.8(a), Ala.R.Crim.P. (“An indictment shall not be returned without the. concurrence of at least twelve (12) grand jurors.”), and Rule 12.8(b), Ala. R.Crim.P. (“When an indictment is found, it must be endorsed ‘A True Bill,’ and the indictment must be signed by the foreman. The indictment shall be returned and filed in open court by the foreman in the presence of at least eleven (11) other members of the grand jury”).

To the extent that Birdsong is arguing that the indictment does not state on its face that there was a concurrence of at least 12 grand jurors in returning the indictment, such a specific statement on the face of an indictment is not required because “the signature of the grand jury foreman signified] the concurrence of 12 or more grand jurors,” Ex parte James, 813 So.2d 841, 842 (Ala.2001) (Johnstone, J., concurring specially). In this case, the indictment was endorsed a true bill and contains the signature of the grand jury foreman.

To the extent that Birdsong is arguing that the indictment failed to state on its face that it was presented in open court by the grand jury foreman in the presence of at least 11 other grand jurors, such a specific statement on the face of an indictment is also not required. Rather, a statement on the indictment that it was returned in open court by the grand jury foreman, which the indictment in this case includes, signifies that the presentment in open court was in the presence of at least 11 other grand jurors. See Williams v. State, 150 Ala. 84, 43 So. 182 (1907); McKee v. State, 82 Ala. 32, 2 So. 451 (1887); Russell v. State, 33 Ala. 366 (1859); and Meadows v. State, 105 So. 428, 21 Ala.App. 72 (1925).

The indictment in this case was valid, and any objection to the indictment would have been baseless. “[C]ounsel could not be ineffective for failing to raise a baseless objection.” Bearden v. State, 825 So.2d 868, 872 (Ala.Crim.App.2001). Because trial counsel was not ineffective for not objecting to the indictment, appellate counsel could not be ineffective for not raising this allegation of ineffective assistance of trial counsel. Therefore, summary denial of this allegation of ineffective assistance of appellate counsel was proper.

B.

Birdsong also contends that his appellate counsel should have argued that his trial counsel was ineffective for not objecting to what he claims was a misleading jury instruction on felony murder as a lesser-included offense of capital murder during a robbery. Specifically, Birdsong argues that the trial court’s instruction on felony murder failed to sufficiently apprise the jury that although felony murder does not require an intent to kill, it does require the intent to commit the underlying felony.

We have reviewed the trial court’s jury instruction on felony murder; the instruction follows the language in the Alabama Pattern Jury Instructions: Criminal (3d ed.1994). The trial court correctly instructed the jury that felony murder required the defendant to have caused the victim’s death during the commission of a robbery in the first degree, and the court accurately defined the elements of robbery in the first degree, including the element that the defendant have the intent to overcome the victim’s physical resistance or physical power of resistance or the intent to compel acquiescence to the taking of the property as well as the intent to deprive the owner of his or her property. The instruction was not misleading, but properly apprised the jury of the elements of felony murder. Because the trial court’s jury instruction on felony murder was proper, any objection would have been baseless. “[Cjounsel could not be ineffective for failing to raise a baseless objection.” Bearden v. State, 825 So.2d 868, 872 (Ala.Crim.App.2001). Because trial counsel was not ineffective in this regard, appellate counsel could not be ineffective for not raising this allegation of ineffective assistance of trial counsel. Therefore, summary denial of this allegation of ineffective assistance of appellate counsel was proper.

C.

Finally, Birdsong contends that his appellate counsel should have argued that his trial counsel was ineffective for not challenging his convictions for murder made capital because it was committed during a robbery and for robbery in the first degree on double-jeopardy grounds.

Count II of the indictment charged Birdsong with murder made capital because it was committed during a robbery as follows:

“The Grand Jury of said county further charge that, before the finding of this indictment, GABRIEN DONA BIRDSONG, whose name is otherwise unknown to the Grand Jury, did intentionally cause the death of another person, to-wit: Quentin Troupe, by shooting him with a pistol, and the said GA-BRIEN DONA BIRDSONG did cause said death during the time that he was in the course of committing a theft of property, to-wit: United States currency, the property of Milton Hines or other occupants of the residence, by the use of force or by threatening the imminent use of force against the person of the said Quentin Troupe, another person present, with the intent to overcome his physical resistance or physical power of resistance or to compel acquiescence to the taking of or escaping with the property, while the said GABRIEN DONA BIRDSONG was armed with a deadly weapon or dangerous instrument, to-wit: a pistol or shotgun, in violation of Section 13A-5-40(a)(2) of the Code of Alabama.”

(Record on Direct Appeal, C. 6.) Count V of the indictment charged Birdsong with robbery in the first degree as follows:

“The Grand Jury of said county further charge that, before the finding of this indictment, GABRIEN DONA BIRDSONG, whose name is otherwise unknown to the Grand Jury, did on or about December 29, 1999, in the course of committing a theft of United States currency, the property of Milton Hines, use force against the person of Quentin Troupe, with intent to overcome his physical resistance or physical power of resistance, or threaten the imminent use of force against the person of Quentin Troupe with intent to compel acquiescence to the taking of or escaping with the property, while the said GABRIEN DONA BIRDSONG was armed with a deadly weapon or dangerous instrument, to-wit: a pistol or shotgun, in violation of Section 13A-8^41 of the Code of Alabama.”

(Record on Direct Appeal, C. 7.)

It is clear that the robbery forming the basis of the first-degree-robbery charge was the same robbery underlying the capital-murder charge. Thus, robbery as charged in Count V of the indictment was a lesser-included offense of capital murder during a robbery as charged in Count II of the indictment, and Birdsong’s convictions for both violate the principles of double jeopardy. Although Birdsong raises this claim in terms of ineffective assistance of appellate counsel, this type of double-jeopardy violation is jurisdictional. As this Court explained in Buford v. State, 891 So.2d 423 (Ala.Crim.App.2004):

“It is well settled that ‘[a] defendant cannot be convicted of both a capital offense and a lesser offense that is included in the capital charge.’ Adams v. State, [Ms. CR-98-0496, August 29, 2003] — So.2d -, - (Ala.Crim. App.2003). See also Turner v. State, 924 So.2d 737 (Ala.Crim.App.2002). Section 13A-l-8(b), Ala.Code 1975, provides, in pertinent part:
“ ‘(b) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
“ ‘(1) One offense is included in the other, as defined in Section 13A-1-9.’
“Such a double-jeopardy transgression implicates the jurisdiction of the trial court and must be noticed by this Court regardless of whether it was raised. See, e.g., Straughn v. State, 876 So.2d 492 (Ala.Crim.App.2003) (opinion on return to remand and on application for rehearing); Borden v. State, 711 So.2d 498 (Ala.Crim.App.1997), affd, 711 So.2d 506 (Ala.1998); and Rolling v. State, 673 So.2d 812 (Ala.Crim.App.1995).”

891 So.2d at 435-36. Therefore, Birdsong’s conviction for robbery in the first degree must be vacated.

Based on the foregoing, we remand this case for the circuit court to vacate Birdsong’s conviction and sentence for robbery in the first degree under Count V of the indictment. Due return shall be filed with this Court no later than 21 days from the date of this opinion.

REMANDED WITH DIRECTIONS.

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

      . We note that appellate counsel did, in fact, raise several allegations of ineffective assistance of trial counsel at a hearing on Birdsong’s motion for a new trial and did pursue those claims on appeal. However, counsel did not raise the allegations of ineffective assistance of trial counsel that Birdso'ng now claims should have been raised.

      . Because this double-jeopardy violation implicates the jurisdiction of the trial court, we need not address the State’s argument that Birdsong suffered no prejudice as a result of his two convictions as required under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . Buford was Birdsong’s codefendant.


author: COBB, Judge.

text:
    Charles Thomas KING v. STATE of Alabama.
    CR-03-1704.
    Court of Criminal Appeals of Alabama.
    June 24, 2005.
    Rehearing Denied Sept. 16, 2005.
    Certiorari Denied Nov. 10, 2005 Alabama Supreme Court 1041978.

      Robert B. Tuten, Huntsville, for appellant.

      Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
   COBB, Judge.

Charles King was indicted by a Madison County grand jury on two counts of first-degree sexual abuse for having sexual contact with his step-granddaughter, who was six years old at the time of the incidents. § 13A-6-66, AkuCode 1975. He was convicted of both charges following a jury trial, and the trial court imposed 10-year concurrent sentences. The trial court also ordered King to pay a $2,500 fine for each count, $500 to the Crime Victims Compensation Fund for each count, court costs, and restitution. This appeal follows.

The evidence at trial tended to show the following. King had been married to Ruth, the victim’s grandmother, for approximately 10 years. Ruth’s daughter is the mother of the victim, E.M. E.M. and her younger brother visited with the Kings at their home once or twice each week. On an afternoon in May 2002, near the end of her first-grade school year, E.M. was sitting on a couch at home with her mother. E.M. suddenly began crying and told her mother that Grandpa was always kissing and touching her and he pulled his pants down in front of her. E.M. told her mother she was afraid that she would go to jail, and she asked her mother not to tell anyone. E.M. said the devil made Grandpa do these things. E.M.’s mother contacted the police. E.M.’s mother testified that E.M. had expressed feelings of shame and guilt, and that E.M. believed she had done a “bad thing.” (R. 128.)

E.M. testified at trial. She stated that King had touched her “private parts,” where she goes to the bathroom. (R. 137-38.) E.M. testified that she had touched King’s private part and “his titties.” (R. 139.) These touchings occurred at King’s house when she was in the first grade, she said.

Lucy McLean testified that she was an investigative interviewer employed by the Children’s Advocacy Center and was working under contract to the Department of Human Resources. She investigated cases of alleged child sexual abuse. She testified about her education and experience and about the guidelines for conducting a forensic interview. McLean conducted a forensic interview of E.M. and determined that a more extensive evaluation was required. She made a referral for a forensic evaluation. The videotape of McLean’s interview with E.M. was played for the jury.

Denise Houston met with E.M. while Houston was employed at the National Children’s Advocacy Center. She testified at length about her education and work experience as a forensic evaluator, therapist, and trainer. She also testified as to the way she conducts a forensic evaluation of a child suspected of being abused. Specifically, she noted that the evaluation is conducted during the course of several sessions, with the initial sessions devoted to gathering general information from the parent and the child and to building rapport. Houston testified about the sessions she conducted with E.M.’s mother and with E.M.

Houston described E.M. as being distressed and reluctant to speak about what King had done, other than to tell Houston that “Grandpa broke a big rule,” and that Grandpa made her “do something.” (R. 186.) Later in the session, E.M. told Houston that King had forced her to touch “his weiner” or his “private spot” and that it got bigger when she touched it. (R. 191-93.) She said that she had seen her little brother’s “weiner” when he was in the bathroom, and that King’s “weiner” was bigger and wetter, and that it left “nasty, smelly stuff” on her hands. (R. 195.) E.M. further testified that King kissed her on the lips and put his tongue in her mouth, and that he made her put her mouth and tongue on his stomach and “titties.” (R. 197.) Houston testified that E.M.’s statements were consistent with a victim of child sexual abuse.

Dr. Deborah Williams testified that she conducted a physical examination of E.M. The results of the examination were normal, and the doctor detected no problems with E.M.’s hymen or her genital or rectal areas.

George Johnson, an investigator with the Madison County Sheriffs Department, testified that he interviewed King after he saw the videotape of the forensic interview conducted by Lucy McLean. King was 67 years old at the time of the interview. He told the investigator that he had not had sex in a while due to some problems he had. King told him that E.M. was affectionate and liked to kiss everyone. King also stated that E.M. had walked into the bathroom and bedroom on more than one occasion and had seen him naked. He said E.M. had done this at other people’s houses, too. King took three polygraph examinations; the results of the tests were inconclusive.

Ruth King, the victim’s maternal grandmother, testified that she was married to King when the sexual abuse took place, but that she never saw King touch E.M. inappropriately. She stated that E.M. enjoyed being around King and that she expressed love for him. She said that she once found E.M. in the bathroom while King was in the shower. Ruth testified that the glass shower door was closed, but that King’s naked body was visible through the door. Finally, she testified that, for the duration of their marriage, King was capable having erections and ejaculating, and that she had observed him with erections during 2001 and 2002.

King testified on his own behalf. He denied doing any of the things E.M. alleged he had done. King testified that he retired from the military as a lieutenant colonel with many commendations and awards. He married Ruth in 1990 and they divorced after E.M. made the allegations of sexual abuse. He acknowledged that E.M. and her brother got under the covers with him and Ruth for a few minutes in the morning on the days the children stayed at the Kings’ house, but he said that he and E.M. just cuddled. When defense counsel asked King whether he had ever put his tongue on E.M., as some of the testimony had indicated, King responded, “No, sir, not that I can recall.” (R. 294.) On cross-examination, in response to the prosecutor’s question about whether he had ever kissed E.M. with an open mouth, King stated, “Not that I can recall, but I’ve — ”. (R. 323.) King testified that, on the morning E.M. was in the bathroom while he was in the shower, the water was running and he did not know E.M. had come into the bathroom. He knew only that Ruth yelled at E.M. for being in the bathroom and took her out.

King testified that he injured his groin in 1996 when he fell through rotten porch timbers and landed straddling a joist. He did not seek medical treatment at the time, but testified that he believed that the injury diminished his erectile functioning. In 1999 he asked his physician for a test to measure his testosterone level, and in 2003 he consulted a urologist regarding his erectile difficulties. He stated that, in 2001 and 2002, he could not have an erection and he could not ejaculate, although he said that he attempted to masturbate a few times each week.

I.

King first argues that § 15-25-31 et seq., Ala.Code 1975, the Child Sexual Abuse Victim Protection Act, is unconstitutional because it violates his right to confrontation and the Supreme Court’s recent interpretation of that right, as set forth in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). He also argues that the trial court erred to reversal when it permitted the State to introduce hearsay statements from the victim; he claims that Crawford precludes the admission of all hearsay statements unless a defendant was afforded the opportunity to cross-examine the witness at the time the out-of-court statements were made. King preserved these arguments for review by filing a pretrial motion to declare the statute unconstitutional and a pretrial motion in limine to prevent the State from introducing any hearsay statements. (C. 102-105.) King also objected at trial when the hearsay statements were offered. At the pretrial hearing on the motions, the State argued that, because the victim would testify at trial and would be available for cross-examination, King’s right of confrontation was protected and Crawford did not apply. The trial court denied King’s pretrial motions and his objections to the hearsay evidence offered during the trial. We agree with the State; the trial court’s rulings were correct.

In Crawford v. Washington, the United States Supreme Court held that the Sixth Amendment’s Confrontation Clause precludes the admission of testimonial hearsay evidence where the witness is unavailable to testify and the defendant has not had a prior opportunity for cross-examination. 541 U.S. at 68, 124 S.Ct. 1354. The Supreme Court clearly stated that the Confrontation Clause provides no bar to the admission of hearsay statements when the hearsay declarant testifies at trial:

“Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U.S. 149, 162 (1970). It is therefore irrelevant that the reliability of some out-of-court statements ‘ “cannot be replicated, even if the declarant testifies to the same matters in court.”’ Post, at 74 (quoting United States v. Inadi, 475 U.S. 387, 390 (1986)). The Clause does not bar admission of a statement so long as the declar-ant is present at trial to defend or explain it. (The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. See Tennessee v. Street, 471 U.S. 409, 414 (1985).)”

541 U.S. at 59 n. 9, 124 S.Ct. 1354.

The victim’s hearsay statements to which King now objects were introduced during the testimony of the two child advocacy workers. Alabama law authorizes the admission of an out-of-court statement made by a child under the age of 12 under certain circumstances. Specifically, § 15-25-31, Ala.Code 1975, provides:

“An out-of-court statement made by a child under 12 years of age at the time of the proceeding concerning an act that is a material element of any crime involving child physical offense, sexual offense, and exploitation, as defined in Section 15-25-39, which statement is not otherwise admissible in evidence, is admissible in evidence in criminal proceedings, if the requirements of Section 15-25-32 are met.”

Section 15-25-32(1), Ala.Code 1975, provides that an out-of-court statement may be admitted as provided in § 15-25-31 if the child testifies at the proceeding and is subject to cross-examination about the out-of-court statements.

E.M. testified at trial. Therefore, Crawford, which addressed “[tjestimonial statements of witnesses absent from trial,” 541 U.S. at 59, 124 S.Ct. 1354, was not implicated, and King’s right to confront and cross-examine his accuser was fully satisfied. Because the provisions of the Child Sexual Abuse Victim Protection Act relevant to this case did not violate the holding of Crawford or the principles of the Confrontation Clause, King’s argument is moot, and we need not address the constitutionality of the statute as a whole.

King argues that the Crawford was also violated because the testimony of the child-advocacy workers “went far beyond the scope of the testimony of the alleged victim,” and that he could not have cross-examined the victim further without proving the State’s case to the jury. (King’s brief at p. 33.) Before Denise Houston testified, King objected to any testimony that went beyond the details provided by the victim in her testimony. (R. 155.) The hearsay testimony did not violate Crawford, as we held above. To the extent King argues that his cross-examination of the victim was somehow limited at trial, we find that any limitation was the result of defense counsel’s decisions and not the result of any action by the trial court or by the prosecutor. We note, additionally, that the United States Supreme Court has stated the following about the right to effective cross-examination:

“ ‘ “The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.” [Davis v. Alaska, 415 U.S. 308, 315-16] (quoting 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed.1940) (emphasis in original)). Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”

Delaware v. Fensterer, 474 U.S. 15, 19-20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985).

Finally, the State correctly notes in its brief to this Court that King reserved the right to recall E.M. to testify. (R. 155.) He could have cross-examined the victim further after the child-advocacy workers testified, but he chose not to do so.

The principles announced in Crawford v. Washington were not implicated here because the victim testified at trial. Therefore, Crawford does not require a review of the constitutionality of the Child Sexual Abuse Victim Protection Act under the circumstances of this case. The hearsay statements were properly admitted pursuant to §§ 15-25-31 and 15-25-32, Ala. Code 1975. King’s argument, that the hearsay statements somehow limited his cross-examination of the victim, is merit-less. King is not entitled to relief on any of the Crawford claims.

II.

King next argues that the trial court erred when it denied his motion in limine and permitted the forensic investigator, Lucy McLean, and the forensic interviewer, Denise Houston, from the Children’s Advocacy Center to testify as to the victim’s out-of-court statements because that testimony contained more details of the assaults than the victim provided in her testimony. He argues that the witnesses improperly vouched for the victim’s credibility and that their testimony constituted improper bolstering of the victim’s testimony. He further alleges that the hearsay testimony and the videotape of the victim’s investigative interview violated Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Initially, we question whether King has preserved for review the allegation that the State’s witnesses improperly bolstered the victim’s testimony or vouched for her credibility. Although King filed a motion in limine requesting that the court prevent the State from using any of its witnesses to vouch for the credibility of any of its other witnesses (C. 56-57), when the child-advocacy workers who interviewed the victim testified at trial, King argued only that their testimony was inadmissible hearsay and that they should not be permitted to testify to details the victim did not provide in her trial testimony (R. 155-56, 237-38.) The adverse ruling on King’s motion in limine did not preserve this specific objection for appellate review; preservation of the issue required a specific objection on these grounds at the time the evidence was introduced. E.g., Moody v. State, 888 So.2d 532, 582 (Ala.Crim.App.2003).

Even if King had preserved for review his claim that the witnesses improperly bolstered the victim’s testimony and vouched for her credibility, he would not be entitled to any relief. As discussed in the preceding part of this opinion, the trial court correctly allowed Houston and McLean to testify about their interviews with the victim; the testimony was admissible pursuant to §§ 15-25-31 and 15-25-32, Ala.Code 1975, and it did not implicate Crawford principles. Furthermore, the State correctly argues that, because King attempted to impeach the victim during cross-examination by asking her about details she had provided during her interviews with Houston, the State was permitted to elicit on cross-examination from Houston the complete details of the victim’s prior statements. Strickland v. State, 550 So.2d 1042, 1052-53 (Ala.Crim.App.1988), aff'd, 550 So.2d 1054 (Ala.1989).

King is not entitled to any relief on these claims of error.

III.

King next argues that the trial court erred when it limited his right to cross-examine his former wife, Ruth King. Specifically, he argues that he should not have been prohibited from inquiring about Ruth’s sexual abuse by her grandfather when she was a child because the information was relevant to show her bias and how it affected her credibility.

Before trial, the State filed a motion in limine requesting that King be prohibited from inquiring of State’s witnesses whether they had been victims of sexual assault or sexual abuse, and alleging that such questioning would be irrelevant to the charges involving the minor victim. (C. 114.) At the hearing on the motion, the prosecutor requested that King make an offer of proof outside the jury’s presence before attempting to introduce evidence about a witness’s alleged prior victimization. King agreed to that stipulation, and the trial court entered an order to that effect. (R. 23, C. 114.)

At trial, on the day after Ruth King had testified, defense counsel stated that, during the previous evening, King had informed him that Ruth had been sexually abused by her grandfather when she was a child. Defense counsel requested permission to recall Ruth and to cross-examine her about the abuse in order to show her possible bias. (R. 350.) The prosecutor objected, stating that Ruth had not provided any testimony about whether King had abused the victim, and that her testimony had been limited to her observations of King’s interactions with the victim and to her own sexual experiences with King. The trial court denied defense counsel’s request. Defense counsel recalled Ruth to the stand, but did not question her about her alleged prior sexual abuse. On appeal, the State argues that, even if the trial court erred in refusing to allow King to cross-examine Ruth about the alleged pri- or sexual abuse, any error was harmless beyond a reasonable doubt. We agree.

We addressed a similar set of circumstances in Hooper v. State, 585 So.2d 142 (Ala.Crim.App.1991). Hooper was charged with raping his minor daughter. The trial court refused to allow Hooper to ask on cross-examination of two minor witnesses, friends of his daughter’s who testified that the victim reported the abuse to them, whether they previously had been the victims of sexual abuse. Each witness had been sexually abused by someone other than the appellant. We found that, as to at least one of the witnesses, the trial court erred in limiting Hooper’s right to cross-examine her about her prior sexual abuse because it would have tended to show possible bias. 585 So.2d at 145-46. However, we found that the error was harmless because the victim had made similar complaints to other witnesses who also testified at trial about the complaints. We explained:

“Although we are extremely reluctant to hold that any improper limitation of cross-examination constitutes harmless error, we are convinced beyond any reasonable doubt that the error in this case did not contribute to the verdict of the jury. See Chapman v. California, 886 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Violations of the confrontation clause of the Sixth Amendment are subject to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).
“ ‘[W]e hold that the constitutionally improper denial of a defendant’s opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824], harmless-error analysis. The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. Those factors include the importance of the witness’ testimony in the prosecution’s ease, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.’
“Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438.”

Id. at 146.

Ruth King did not testify that E.M. told her about the abuse allegations, nor did she testify that she saw King abuse E.M. She testified, as did King, that E.M. had a close, loving relationship with King and that E.M. and her brother sometimes snuggled in bed with the Kings. Both Ruth and King testified as to E.M. being in the bathroom while King was in the shower, although their testimony differed about whether the water in the shower was on or off. Ruth testified about King’s ability to have erections and to ejaculate during the period of time the abuse took place. Although King testified that his abilities were more limited than Ruth testified, even he admitted that he frequently masturbated.

Evidence about King’s abuse of E.M. came from E.M., her mother, Lucy Me-Lean, and Denise Houston. The State’s case against King was strong, even without Ruth’s testimony, particularly because Ruth testified that she had not seen any alleged abuse, and she did not testify that E.M. reported the abuse to her. Furthermore, King was otherwise permitted a thorough and sifting cross-examination of Ruth and was even permitted to recall her for additional cross-examination, during which he asked her questions regarding a possible motive to testify falsely. (R. 359.)

Applying the analysis discussed in Hooper, we are confident that any error that resulted from the trial court’s limitation of the cross-examination of Ruth was harmless beyond a reasonable doubt. King is not entitled to any relief on this claim.

IV.

King next argues that the trial court erred when it granted the State’s untimely objection to a defense exhibit, his complete medical record, and admitted only those pages of the medical record that had previously been disclosed to the State.

The record reflects that, during King’s testimony, defense counsel attempted to introduce as Defendant’s Exhibit 1 four pages of King’s medical record regarding his treatment for erectile dysfunction. The State objected on grounds that defense counsel had failed to establish the proper foundation for the admission of the records. (R. 305-06.) After much discussion outside the presence of the jury, defense counsel stated that he would, with the court’s permission, secure the attendance of the records custodian from the clinic to authenticate “whatever part of this we’re going to introduce.” (R. 316.) On the following day, the records custodian identified Defendant’s Exhibit 1 as copies of King’s medical records. (R. 344.) The record was admitted without objection.

During defense counsel’s closing argument, the prosecutor objected when she saw defense counsel flipping through more than the four pages of the medical record that had been provided by the defense during discovery. (R. 377.) Defense counsel explained that the records custodian had the complete record, although he had initially intended to introduce only the four pages that were “pertinent.” (R. 379.) Defense counsel also said, “We only wanted the things that were pertinent to this issue and [the clinic] sent some more,” and that the Exhibit 1 contained “the four pertinent pages that the prosecutor saw, but it also has some other stuff about having the flu and some other things.” (R. 383.) Defense counsel argued that the State’s objection to the complete medical record was untimely because the complete medical record had already been admitted by the court. The court then determined that defense counsel had provided the State with only four documents and stated that those were the only documents that should have been admitted. Defense counsel then stated, “I don’t have a problem with that because nothing else is pertinent to the issues at hand, Judge. I’m objecting to the State bringing up this matter at this point....” (R. 389-90.)

We find no error in the trial court’s ruling on this matter. Our review of the entire record convinces us that defense counsel’s intent had always been to introduce only four pages of King’s medical records. Defense counsel provided only those four pages to the State as compliance with his discovery obligation and he stated on several occasions that only those four pages were pertinent to the issues at hand. The trial court has the discretion to determine the admissibility of evidence offered and to impose any sanctions for violations of discovery orders.

Rule 16.5, Ala. R.Crim. P., provides in pertinent part:

“If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection; may grant a continuance if requested by the aggrieved party; may prohibit the party from introducing evidence not disclosed; or may enter such order as the court deems just under the circumstances.”

The trial court determined that defense counsel had offered, and it had admitted into evidence, portions of King’s medical record that had not been provided to the State and that defense counsel, himself, acknowledged were not relevant. When the prosecutor became aware that defense counsel in closing argument was referring to more than the four “pertinent” pages that had been disclosed during discovery, the trial court acted well within its discretion when it amended its earlier ruling and admitted only that portion of the record that had been provided to the State. No error occurred, and King is not entitled to any relief on his claim.

For the foregoing reasons, the judgment of the Circuit Court of Madison County is due to be affirmed.

AFFIRMED.

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

      . E.M. referred to King as "Grandpa.” She called her paternal grandfather "Papa.” (R. 119.)