text:
    PEOPLES COMMUNITY BANK v. Gerald A. HELMS and Johnnie P. Helms.
    2040631.
    Court of Civil Appeals of Alabama.
    April 7, 2006.
    Certiorari Denied June 9, 2006 Alabama Supreme Court 1051019.

      James L. Martin, Eufaula, for appellant.
    Joe W. Adams, Ozark, for appellees.
   MURDOCK, Judge.

Peoples Community Bank (“the Bank”) appeals from a judgment of the Barbour Circuit Court in favor of Gerald A. Helms and Johnnie P. Helms, a married couple. Because we conclude that the court’s finding with regard to the Bank’s security interest in certain property that the court awarded to the Helmses was erroneous, we reverse and remand.

Timothy Dawkins engaged in the business of buying and selling vehicles under the name D & S Motors. D & S was an unincorporated, sole proprietorship. D & S obtained a line of credit from the Bank on July 30, 1999, in the amount of $51,050.65; the Bank agreed to advance funds up to that amount upon D & S’s request and the presentation by D & S to the Bank of purchase invoices and vehicle titles. On that same day, D & S executed a promissory note in the same amount in favor of the Bank. D & S also entered into a security agreement with the Bank pursuant to which the Bank received a security interest in “all inventory which [D & S] hold[s] for ultimate sale or lease,” both presently and in the future. A separate provision in the security agreement stated that “the secured property includes, but is not limited by, the following: Inventory consistfing] of salvage automobiles .... ”

On August 11, 1999, the Bank filed a financing statement with the Alabama Secretary of State. That statement described the inventory in which the Bank possessed a security interest by virtue of its security agreement with D & S as “inventory consisting] of salvage automobiles,” and more fully described the inventory collateral on an attached page as all of the inventory D & S held or would hold in the future for ultimate sale or lease.

In early 2001, Dawkins and Gerald Helms discussed the possibility of purchasing automobiles at auction for the purpose of repairing them and selling them for a profit. Dawkins mentioned to Mr. Helms that there would soon be two automobile auctions held in Florida, and he asked Mr. Helms if he would be interested in purchasing two vehicles with him.

A few weeks later, Dawkins contacted Mr. Helms, told him that his son was at one of the automobile auctions in Florida, indicated that some of the vehicles at the auction were about to sell at a good price, and asked if he wanted to purchase some of the automobiles with Dawkins, as they had previously discussed. Mr. Helms agreed to purchase two vehicles with Daw-kins: a 2001 Lincoln Continental and a 2000 GMC truck. Dawkins and Helms agreed that Mr. Helms would pay for the purchase of the two vehicles and that Mr. Helms also would pay to have them repaired by Dawkins. After the vehicles were sold, Mr. Helms was to be reimbursed the amounts he had expended on purchasing and repairing the vehicles, and he and Dawkins would split the resulting profit. This agreement was not reduced to writing.

In late June 2001, Mr. Helms traveled to Florida with Dawkins to pay for and retrieve the two vehicles. As agreed, Mr. Helms paid for the vehicles, and the vehicles were transported to Dawkins’s shop to be repaired. Shortly after they were delivered to Dawkins’s shop, Dawkins began driving the Lincoln Continental and his wife and son began driving the GMC truck. Dawkins explained to Mr. Helms that the reason he and his family were driving the vehicles was , “to get the kinks out of them.” The bills of sale for these two vehicles named D & S as the purchaser; the vehicles were titled in Dawkins’s name individually.

In August 2001, Dawkins asked Mr. Helms if he could borrow money to purchase five vehicles at an automobile auction in Texas. According to Mr. Helms, Dawkins told him that “he had them sold to this Brian at Auto Trends in Anniston, Alabama, but he needed the money to pay for them to take them to Anniston, Alabama in order to get a price for them.” According to Mr. Helms, Dawkins explained that he would return the money he borrowed after five days, because the vehicles “were already sold.” Dawkins testified, however, that he did not guaranty Mr. Helms that the vehicles would be sold within five days of then* purchase.

After speaking with his wife, Mr. Helms agreed to let Dawkins borrow the money, which amounted to $41,540. Before transferring the funds, the parties wrote the following agreement:

“These vehicle[s] were purchased by D & S motors and paid for by Johnnie Helms on Saturday August 25, 2001 at IAA in Houston TX. Money will be paid back to Johnnie Helms when vehicles are sold.
“Stall# Control# Amount
“531 2001 Mazda Millenia 01007708 9845.00
“878 1997 Mazda Millenia 01008808 3080.00
“341 2000 BMW 01019924 14,545.00
“66 2001 Honda Civic 0100818 8425.00
“550 1995 Tahoe 01015103 5645.00
“Vehicle[s] delivered to Auto Trends in Anniston, AL.”

Unlike their previous oral agreement, Mr. Helms was not going to receive any of the profit from the sale of these vehicles; instead, upon the sale of the vehicles, Mr. Helms was to receive only a return of the funds that he and his wife had loaned to Dawkins to purchase the vehicles.

After the five vehicles were purchased, they were delivered to Auto Trends in Anniston. Dawkins and Mr. Helms traveled to Auto Trends, and Dawkins spoke with Brian in Brian’s office. Brian indicated that he would not purchase the vehicles.

Because they could not sell the vehicles in their current condition, Dawkins and Mr. Helms decided to have them repaired. Because Dawkins did not have the money to have them repaired, Mr. Helms agreed to pay for the repairs. Eventually, three of the vehicles were repaired.

Dawkins took the title certificates to the five vehicles that were purchased in Texas to Mrs. Helms for her to hold. All of those vehicles were titled in the name of D & S, except the 1997 Millennia. The record is unclear whether the 1997 Millennia was titled in the name of D & S or in Dawkins’s name individually.

In August 2001, Dawkins placed some of the above-described seven vehicles at a location in Enterprise, Alabama, that sold used vehicles. Approximately four weeks later, because the vehicles did not sell at the Enterprise location, Dawkins moved the vehicles to a location in Luverne, Alabama, in hopes that they would sell.

On August 17, 2001, the Bank made an advance to Dawkins in the amount of $25,200, which, according to the testimony of the president of the Bank, was “on the Lincoln Continental, 2000 Land Rover four by four, and 2000 Volkswagen Beetle.” In December 2001, D & S obtained from the Bank a renewal of the line of credit it had obtained in 1999. Dawkins executed a promissory note in the amount of $50,999.90 in favor of the Bank.

In February 2002, Dawkins and Mr. Helms moved several of the vehicles to a location in Pell City, Alabama. In late February 2002, one of the vehicles, the 1997 Mazda Millenia, sold. Although he received a check for the amount for which the Millenia was sold, Dawkins did not pay to the Helmses the amount that they were due from the sale per their agreement. After the 1997 Mazda Millenia was sold, Mr. Helms, with the help of two other individuals, traveled to the Pell City location and took possession of the 2000 GMC truck and the 2001 Lincoln Continental that had been placed there.

On March 27, 2002, the Helmses initiated the present action against Dawkins. Their complaint alleged a claim of breach of contract and asserted that the Helmses were entitled to the funds from the sale of the 1997 Mazda Millenia, as well as possession of the six remaining vehicles. In a separate document filed the same day, the Helmses prayed for both a temporary restraining order and a preliminary injunction preventing Dawkins from expending the funds received from the sale of the 1997 Mazda Millenia and from selling or damaging the other vehicles remaining in his possession. They also filed a motion for a writ of seizure, requesting an order seizing the vehicles remaining in Daw-kins’s possession.

The following day, the court entered a preliminary injunction preventing any of the parties from disposing of the vehicles at issue in the case or from disposing of any proceeds derived from their sale. The court also entered an order for a writ of seizure, ordering the sheriff to seize any of the vehicles at issue in the case remaining in Dawkins’s possession.

After the Helmses initiated this litigation, Dawkins visited Steve Stevens, the Bank’s president, and informed him of the litigation. He also turned over to Stevens replacement titles he had obtained on three of the vehicles.

On April 24, 2002, Dawkins answered the complaint and filed a counterclaim alleging breach of contract.

Thereafter, on July 24, 2002, the Bank moved to intervene in the case and filed a claim in intervention, asserting that it possessed a valid security interest in the vehicles at issue in the case and that its security interest was superior to the Helmses’ claim to the vehicles. It alleged that Daw-kins was in default on the promissory note he had executed in the Bank’s favor and that he owed $53,689.56, with interest accruing at a rate of approximately $15.50 per day beginning on July 16, 2002. It demanded recovery of the vehicles. The court granted the Bank’s motion to intervene on September 4, 2002.

On October 30, 2002, the court held a bench trial on the claims. On November 14, 2002, it entered an order finding the following facts:

“1. That the Plaintiffs, Gerald and Johnnie Helms entered into an agreement with Defendant, William T. Dawkins wherein the Plaintiffs fronted money for the purchase of certain vehicles. Defendant was to sell the vehicles and repay the Plaintiffs from such proceeds. The Court finds that the Plaintiffs did in fact front or advance the money used to purchase the seven vehicles involved in this case.
“2. That Defendant sold one of the seven vehicles, a 1997 Mazda [Millenia], but failed to repay the Plaintiffs as agreed. The agreement on this particular vehicle was that the Plaintiffs be repaid the amount of Three Thousand and Eighty Dollars ($3,080.00), plus the cost of repairs paid by the Plaintiffs, in the sum of One Thousand Sixty Four Dollars and Ninety-Nine Cents ($1,064.99).
“3. That the Intervener, Peoples Community Bank, did not give value for the vehicles that are the subject of this case. The business relationship between the Defendant and the Inter-vener had deteriorated from its start in 1998. Defendant is in serious default of his loan with Intervener. The Court finds that the intent of the agreement between Intervener and Defendant was the Intervener would forward money to Defendant for purchase of certain vehicles. Those vehicles would be secured by the promissory note executed by Defendant. The Court further finds that none of the vehicles in question were purchased with Intervener’s money. That its intervention in this case was for collection purposes and not to preserve liens on specific vehicles which its money had procured.”

The court then held:

“A. The Plaintiffs are hereby awarded ownership of the six vehicles currently held by the Barbour County Sheriffs Department and subject to the Writ of Seizure. Those vehicles are further identified as follows:
“2001 Mazda [Millenia] VIN JM1TA221611701245
“2000 BMW VIN WBAAM5346YFR18801
“2001 Honda Civic VIN 2HGES16561H581575
“1995 Chevrolet Tahoe VIN 1GNEK18K4SJ333513 “2001 Lincoln Continental VIN 1LNHM97VX1Y651602 “2000 GMC Pick-Up VIN 1GTGK29U4YE406937
“The Defendant shall endorse the current titles to Plaintiff Johnnie Helms. This execution shall perfect the purchase money security interest in the vehicles for the Plaintiffs as per the intent of the Defendant and Plaintiffs. Said endorsement shall be made within ten (10) days of this Order. Failing therein, the Clerk of this Court is authorized and directed to execute said titles in the name and stead of Defendant.
“B. The Plaintiffs shall sell the vehicles in a commercially reasonable manner. The Plaintiffs shall keep records of all sales and costs of repairs. These figures will be filed with the Court. Any sum of money recovered by the Plaintiffs in excess of their investment plus necessary repairs shall be surrendered to Intervener as payment for Defendant on his promissory note. The Plaintiffs shall cooperate with In-tervener in the sale of the vehicles and shall keep Intervener informed of the progress of the sales.
“C. The Court awards judgement in favor of Plaintiffs and against Defendant for Four Thousand One Hundred Forty-Four Dollars and Ninety-Nine Cents ($4,144.99) which figure represents the cost of the vehicle plus repairs of the 1997 Mazda [Millenia]. Defendant was previously ordered not to expend these proceeds in the Writ of Seizure in this case. Said funds shall be paid to the Plaintiffs or to the Court within ten (10) days of this Order.
“D. The Counterclaim of the Defendant is dismissed.”

On November 25, 2002, Dawkins and the Bank filed motions to alter, amend, or vacate the judgment, or, alternatively, for a new trial. On February 10, 2003, all of the parties executed a document in which they expressed their consent to allow the postjudgment motions to remain pending more than 90 days from the date on which they were filed.

The court held a hearing on the post-judgment motions on December 7, 2004. On January 24, 2005, the court entered an order denying those-motions. The order stated, in pertinent part:

“Steve Stevens, City President of Peoples Community Bank, testified that his Bank had a floor plan agreement with Defendant. Any vehicle purchased by Defendant automatically became subject to the floor plan. During his testimony, Stevens produced a set of vehicle titles for the same set of vehicles. The Bank’s titles were marked replacement titles. This Court then had two sets of titles in evidence for the same vehicles. The testimony showed that Intervener advanced money to Defendant based on the replacement titles. Stevens further testified that he had knowledge that Defendant was severally [sic] past due on his loan to the bank. Stevens was also aware of Defendant’s poor reputation in the community for honesty and trustworthiness. Stevens also testified that the Bank’s relationship with Defendant had steadily deteriorated from its inception in 1998. The Court believes that from the evidence presented that Defendant was present when Plaintiffs took possession of the vehicle titles in March of 2002. The Court further finds that Defendant was deceptive if not criminal in securing the replacement titles. Most of the replacement titles were issued after the fifing of the Complaint and even after the Order of Writ of Seizure. The Court further finds that Defendant committed a fraud upon the Bank by providing the Bank replacement titles when Defendant knew the location of the original titles. The Court finds that neither the Defendant nor the Bank provided the funds to purchase the vehicles. Evidence produced showed that Plaintiffs had paid for the purchase of all the vehicles.
“As to Intervener, Peoples Community Bank, the Court finds that the Bank was aware of Defendant’s financial status and community reputation. The Court finds that the Bank relied upon the fraudulent conduct of its customer, the Defendant. The Court agrees that the replacement set of titles presented to the Bank were properly secured. However, the replacement titles should have raised a red flag as to the reliability of the titles based on the financial status and their personal knowledge of Defendant. The Court finds that the replacement set of titles were fraudulently obtained by Defendant. Stevens testified that the bank did not wish to criminally prosecute their own client. The court considered this testimony in its decision as the Bank could have and still may file criminal charges against Defendant.
“In the Order of this Court dated November 14, 2002, the vehicles were awarded to the Plaintiffs and they were to be sold. Any amount over the Plaintiffs investment and repairs was to be awarded to the Bank. Defendant’s counterclaim for breach of contract against Plaintiffs was dismissed. Both Defendant and Intervener filed post trial motions and all parties agreed in writing to waive the statutory time to rule on these motions.
“After the sale of the last vehicle, this Court heard the post trial motions on December 7, 2004. After considering the oral and written arguments, the court hereby denies the motions.
“As to the final distribution of funds, this Court finds that Plaintiffs expended the amount of $56,630.00 plus repairs in the amount of $4,612.33. The vehicles sold and Plaintiffs were able to recover the amount of $38,144.99. The BMW vehicle was unable to be sold and was assigned a value of $3,500.00 for purposes of this accounting. Therefore, the court awards the Plaintiffs the amount of $38,144.99 and the BMW with a value of $3,500.00 and a judgment against the Defendant for the balance of unrecov-ered funds totaling $19,597.34. This Court refuses to allow the Bank to profit from a fraud committed by its own client at the expense of an innocent third party which gave value for the vehicles. The Intervener, Peoples Community Bank, is free to seek other civil or criminal remedies for collection of their note executed by Defendant.”

The Bank appeals.

The Bank contends that it had a valid, perfected security interest in the seven vehicles at issue in this case. Thus, according to the Bank, the trial court erred when it awarded the vehicles, and the proceeds from the sales of those vehicles, to the Helmses. The Helmses respond by arguing that the trial court correctly awarded them the seven vehicles and the proceeds from the sale of the vehicles because, as the trial court held, the Bank’s advances to Dawkins were limited to the purchase of other vehicles not presently at issue and, thus, the seven vehicles at issue in this case were not covered by the Bank’s security agreement with Dawkins.

The trial court’s judgment is premised on its findings that (1) the Bank’s and D & S’s intent with regard to the security agreement was that the Bank would have a security interest only in those vehicles with respect to which it had provided purchase-money financing, and (2) the Bank “did not give value for the vehicles.” The trial court’s analysis in this regard is flawed.

The security agreement between the Bank and D & S provided that the Bank would have a security interest in all of D & S’s presently existing and future inventory that it held or would hold for sale. The language employed in the agreement was unambiguous and plainly provided that all of D & S’s inventory was subject to the agreement. Because the language of the agreement was unambiguous, the trial court should have determined the Bank’s and D & S’s intentions by referencing only the language expressed therein, without resort to any surrounding circumstances. See H.R.H. Metals, Inc. v. Miller ex rel. Miller, 833 So.2d 18, 24 (Ala.2002). See also Peppertree Apartments, Ltd. v. Peppertree Apartments, 631 So.2d 873, 880 (Ala.1993) (“The intention of the parties to a note or other contract is to be determined from the contract itself, where the contract is plain and unambiguous.”); and American Nat’l Bank & Trust Co. of Mobile v. Robertson, 384 So.2d 1122, 1125 (Ala.Civ.App.1980) (“[A] security agreement is effective according to its terms.”). In other words, the trial court was not authorized to ascribe to the security agreement a meaning at odds with its plain language.

The next question presented is whether the Bank gave value for the security interest it obtained in the vehicles. The giving of value is one of the three elements that must be present for a security interest to be enforceable. See former § 7-9-203(1), Ala.Code 1975.

Former § 7-9-204, Ala.Code 1975, which was in force until January 1, 2002, provided:

“(1) Except as provided in subsection (2), a security agreement may provide that any or all obligations covered by the security agreement are to be secured by after-acquired collateral.
“(2) [Subsection (2) deals with consumer goods, which are not at issue in the present case.]
“(3) Obligations covered by a security agreement may include future advances or other value whether or not the advances or value are given pursuant to commitment ....”

Former § 7-1-201(44), Ala.Code 1975, defined “value” as follows:

“ “Value.’ Except as otherwise provided with respect to negotiable instruments and bank collections ... a person gives “value’ for rights if he or she acquires them:
“(a) In return for a binding commitment to extend credit or for the extension of immediately available credit whether or not drawn upon and whether or not a charge-back is provided for in the event of difficulties in collection; or
“(b) As security for or in total or partial satisfaction of a preexisting claim; or
“(d) Generally, in return for any consideration sufficient to support a simple contract.”

Based on the foregoing statutes, we hold that the Bank provided value when it made a commitment to extend credit, and when it made actual advances to D & S pursuant to that commitment. See Southern Ready Mix, Inc. v. AmSouth Bank, 576 So.2d 188, 189-91 (Ala.1991). The trial court’s holding to the contrary is in error.

The Helmses also argue in their brief:

“[T]he evidence shows that although [the Bank] was well aware of Dawkins’[s] account being severely past due, at no time did it put said account in default in an effort to collect the pledged collateral under the security agreement, which was still available. Instead, [the Bank], with knowledge of Dawkins’s financial status and reputation in the community for dishonesty, accepted as substitution collateral replacement titles from Daw-kins without inquiry into the same. More importantly, [the Bank] accepted said substitution collateral after having learned of the pending litigation between the Helms[es] and Dawkins. As such, it is clear that [the Bank] wrongly relied upon the fraud of its own customer, Dawkins, and it did so for the sole purpose of gaining a better position— i.e., to get the [B]ank out of a bad situation. In other words, [the Bank] is trying to benefit from the Helms[es]’ misfortune.”

(Footnote omitted.) The Helmses have not explained to this court, and they have provided no legal authority demonstrating, why the above-stated facts, even if they were supported by the evidence, would serve to defeat the Bank’s security interest in all of D & S’s inventory.

For the foregoing reasons, the trial court’s judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Effective January 1, 2002, former § 7-9-203(1) was replaced by § 7-9A-203(b).

        . Effective January 1, 2002, former § 7-9-204 was replaced by § 7-9A-204.

      . Effective January 1, 2005, former § 7-1-201(44) was replaced by § 7-1-204.

      . As a separate matter, the trial court, in its November 2002 order, made a passing reference to a purchase-money security interest of the Helmses in the seven vehicles. The court, however, did not expressly reach the questions whether any such security interest actually existed or was enforceable or whether the Helmses’ asserted interest took priority over the Bank’s security interest. We do not reach those questions here.


source: Caselaw Access Project

author: MURDOCK, Judge.

license: Public Domain

text:
    Douglas ROBBINS v. Paula ROBBINS.
    2050316.
    Court of Civil Appeals of Alabama.
    June 9, 2006.

      Jon M. Folmar, Luverne, for appellant.
    Mark T. Smyth, Luverne, for appellee.
   MURDOCK, Judge.

Douglas Robbins, the former husband, appeals from a judgment entered by the Crenshaw Circuit Court dismissing his “Petition to Modify Divorce Decree and for Rule Nisi Contempt” filed against Paula Robbins, the former wife. The former husband’s petition sought a termination of his periodic-alimony obligation to the former wife and requested that the trial court order the former wife to turn over certain items of personal property that had been awarded to him in the divorce judgment. We dismiss the appeal for lack of jurisdiction.

The trial court entered the judgment dismissing the former husband’s petition on August 11, 2005. The former husband filed a “Motion to Vacate Judgment” on September 1, 2005 (see Rule 59(e), Ala. R. Civ. P.), and the former wife filed a response to that motion on September 13, 2005. The trial court subsequently entered an order on October 4, 2005, setting the former husband’s postjudgment motion for a hearing on November 15, 2005. Thereafter, on November 8, 2005, “[d]ue to an irresolvable conflict,” the trial court entered an order continuing the hearing until December 20, 2005. On December 20, 2005, the trial court made the following entry on the case-action-summary sheet: “Motion to Vacate Judgment denied by operation of law.” The former husband appeals.

Neither party has raised an issue relating to the timeliness of the former husband’s appeal; however, this court has held that “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997)(quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). The timely filing of a notice of appeal is a jurisdictional act. Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985).

Subject to certain exceptions that are not applicable in this ease, Rule 4(a)(1), Ala. R.App. P., requires that in all cases in which an appeal is permitted, the notice of appeal shall be filed within 42 days of the entry of the judgment or order appealed from. Rule 4(a)(3), Ala. R.App. P., provides that a postjudgment motion filed pursuant to Rule 59, Ala. R. Civ. P., will suspend the time for filing a notice of appeal until (1) the date such motion is granted or denied or (2) the date the motion is deemed denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P.

Rule 59.1, Ala. R. Civ. P., states:

“No post-judgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to dispose of any pending post-judgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.”

(Emphasis added.)

A trial court loses jurisdiction to rule on a postjudgment motion if it does not rule on the motion within the time prescribed by Rule 59.1. See Ex parte Caterpillar, Inc., 708 So.2d 142, 143 (Ala.1997).

The former husband’s post-judgment motion was filed on September 1, 2005. The trial court did not enter an order granting or denying the post-judgment motion within the 90-day period set forth in Rule 59.1 and the motion was therefore deemed denied by operation of law on November 30, 2005.

The former husband had 42 days from the date that his postjudgment motion was denied by operation of law to file a notice of appeal. The final date on which the former husband could have filed an effective notice of appeal was January 11, 2006. He filed his notice of appeal on January 13, 2006. Rule 2(a)(1), Ala. R.App. P., provides that “[a]n appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.” We have concluded that the former husband’s appeal is untimely; therefore, we dismiss the appeal.

APPEAL DISMISSED.

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


author: BRYAN, Judge.

text:
    Prentice MILLER v. Pauline M. HARRIS.
    2041084.
    Court of Civil Appeals of Alabama.
    June 16, 2006.

      E. Tatum Turner of Turner, Onderdonk, Kimbrough, Howell, Huggins & Bradley, P.A., Chatom, for appellant.
    C. Robert Montgomery, Chatom, for ap-pellee.
   BRYAN, Judge.

Prentice Miller appeals from a judgment entered in favor of Pauline M. Harris granting Harris an easement over Miller’s land. We affirm the judgment insofar as it grants Harris an exclusive easement over Miller’s land, but we remand the cause for the trial court to provide a sufficient description of the easement.

Harris owns a 30-acre tract of land lying adjacent to, and north of, Miller’s land. Harris and Miller are siblings, and their father, Earl Miller, had previously owned the lands currently owned by Harris and Miller. Harris’s land contains wetlands stretching from east to west across the length of her land. Approximately six to seven acres of Harris’s land lies south of the wetlands, which were estimated by various witnesses at trial to be between 50 and 250 yards wide. Harris’s land south of the wetlands is primarily woodland. Harris testified that, in 1993, she used a private, gravel road on Miller’s land to harvest timber from her land south of the wetlands. Harris testified that besides using the gravel road to harvest timber, she had used the gravel road roughly a half dozen times to access her land south of the wetlands. The section of Harris’s land north of the wetlands is accessible by a public road.

On April 3, 2003, Harris sued Miller, seeking “an implied easement or way of necessity” over Miller’s land. Harris’s complaint alleged that she could access her land located south of the wetlands only by crossing over the private road on Miller’s land. Following a trial at which evidence was received ore tenus, the trial court entered a judgment granting Harris an easement by necessity over Miller’s property. In pertinent part, the judgment stated:

“1. [Harris] established original unity of ownership of the lands of [Harris] and [Miller], All of said lands were originally owned by Earl S. Miller, deceased, father of [Harris] and [Miller].
“4. Approximately six to seven acres of [Harris’s] land on the south side (and which adjoins [Miller’s] land) is landlocked by topography. A branch and swampy area runs east to west across [Harris’s] land making it impossible to access from the northern portion of [Harris’s] land. The Court, after viewing the property, is satisfied that [Harris] has shown that constructing a road across the swamp would require unreasonable expense disproportionate to the value of the property. No other means of access exists to the property South of the wetlands.
“5. [Harris] has used the road which crosses [Miller’s] lands as access to her property South of the wetlands since she was deeded her lands in 1980. Further, [Harris’s] and [Miller’s] brothers[,] Ar-nette Miller and Bill Ray Miller[,] testified that, during their father’s ownership of all of the property now owned by [Harris] and [Miller], the road was used as the sole means of access to the property lying South of the wetlands.
“It is therefore ORDERED, ADJUDGED and DECREED as follows:
“1. [Harris] is granted an easement by necessity over and across the lands of [Miller].... Said easement shall be located where the road accessing [Harris’s] lands is currently situated.
“2. Said easement shall be exclusive to [Harris] and her successors in title for access to her lands and for the reasonable use and enjoyment of the lands served by the easement.”

Miller timely appealed the judgment to the supreme court, and, pursuant to § 12-2-7(6), AJa.Code 1975, the supreme court transferred the appeal to this court.

Harris’s complaint sought an easement by implication or, alternatively, an easement by necessity. The trial court’s judgment granted Harris an easement by necessity. On appeal, Miller argues that the trial court erred because, Miller says, Harris is entitled to neither an easement by implication nor an easement by necessity. This court “ ‘ “will affirm the judgment appealed from if supported on any valid legal ground.” ’ ” Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45, 51 (Ala.2003) (quoting Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988)). This rule is qualified only by exceptions inapplicable to the present case. See Liberty Natl Life Ins. Co. v. University of Alabama Health Sews. Found., 881 So.2d 1013, 1020 (Ala.2003). Because the record on appeal reflects that Harris established that she is entitled to an easement by implication over Miller’s land, we do not address whether Harris is entitled to an easement by necessity.

Easements may be acquired “(1) by express conveyance, (2) by reservation or exception, (3) by implication, (4) by necessity, (5) by prescription, (6) by contract, and (7) by reference to boundaries or maps.” Helms v. Tullis, 398 So.2d 253, 255 (Ala.1981).

“To prove entitlement to an easement by implication, a landowner must show that his or her parcel of property had original unity of ownership with the land through which the easement is sought. Helms [v. Tullis], 398 So.2d [253,] at 255 [ (Ala.1981) ]. Additionally, the use must be open, visible, continuous, and reasonably necessary to the estate granted. Id. ‘The implication is that the parties implied such an easement because the grantee, having seen the use the grantor made of the property, can reasonably expect a continuance of the former manner of use.’ Helms, 398 So.2d at 255-56.”

Bluffs Owners Ass’n, Inc. v. Adams, 897 So.2d 375, 378-79 (Ala.Civ.App.2004).

It is undisputed that there was original unity of ownership of the lands in dispute. Miller argues, however, that Harris failed to show that the use of the claimed easement was open, visible, continuous, and reasonably necessary. The record indicates that the use of the claimed easement before Harris’s acquisition of her land was sufficiently open, visible, and continuous to create an implication that Harris could reasonably expect the use of the easement. It is undisputed that Earl Miller, the previous owner of Harris’s and Miller’s lands, had accessed the land immediately south of the wetlands by way of an unimproved road located in the same location as the gravel road currently on Miller’s land. Harris testified that Earl Miller had used the road to plant gardens, to conduct turpentine operations, and to conduct logging operations on what is currently Harris’s land south of the wetlands. Given that such use was consistent with the primarily woodland nature of the land, the use of the claimed easement was open, visible, and continuous. Cf. Rohrer v. Allen, 415 So.2d 1054 (Ala.1982) (stating that, in an adverse-possession case, land need only be used in a manner consistent with its nature to establish possession); and Limbaugh v. Richardson, 402 So.2d 957, 958 (Ala.1981) (stating that, in an adverse-possession case, “continual use is not required, it being sufficient that the claimants show a use or exercise of dominion ‘as in its present state it is reasonably adapted to’ ”).

Miller also argues that the easement granted to Harris was not reasonably necessary for the enjoyment of her land. The trial court addressed the reasonable necessity of the easement in its judgment:

“Approximately six to seven acres of [Harris’s] land on the south side (and which adjoins [Miller’s] land) is landlocked by topography. A branch and swampy area runs east to west across [Harris’s] land making it impossible to access from the northern portion of [Harris’s] land. The Court, after viewing the property, is satisfied that [Harris] has shown that constructing a road across the swamp would require unreasonable expense disproportionate to the value of the property. No other means of access [besides the easement] exists to the property South of the wetlands.”

“An implied easement requires that the easement be reasonably necessary, but it is a question of fact in each particular case whether the right in question constitutes a necessity to the property conveyed.” Pinkston v. Hartley, 511 So.2d 168, 169 (Ala.1987). “Following ore tenus proceedings, the determination of fact by the trial court, and its judgment based thereon, will not be disturbed on appeal unless found to be manifestly unjust or plainly erroneous.” Smith v. Trawick, 676 So.2d 336, 337 (Ala.Civ.App.1996). Moreover, “[wjhere a trial judge takes a view of the subject property there must be a strong showing of error before reversal is proper.” Bull v. Salsman, 435 So.2d 27, 30 (Ala.1983). A finding that the easement is reasonably necessary in this case is not manifestly unjust or plainly erroneous.

The record reveals that there was unity of ownership of Harris’s and Miller’s lands and that the use of the claimed easement was open, visible, continuous, and reasonably necessary. It is undisputed that Earl Miller, the previous owner of Harris’s and Miller’s lands, had accessed the land immediately south of the wetlands by way of an unimproved road over the land currently owned by Miller. The rationale supporting an easement by implication is that “the parties implied such an easement because the grantee, having seen the use the grantor made of the property, can reasonably expect a continuance of the former manner of use.” Helms, 398 So.2d at 255-56. Given the facts of this case, a reasonable implication is that an easement was implied over Miller’s land allowing access to Harris’s land south of the wetlands.

The trial court, in its judgment, granted an easement “where the road accessing [Harris’s] lands is currently situated.” Our review of the record indicates that, although there is a clearly defined gravel road running across Miller’s land toward Harris’s property, that gravel road does not extend to Harris’s property. Pastureland, belonging to Miller, lies between the end of the gravel road and Harris’s property. The record indicates that this pastureland contains no roads or pathways that would fit the description of the road designated as the easement in the judgment. Because the trial court’s judgment does not sufficiently describe the entire easement, we remand the cause. On remand, the trial court should provide a description of the easement from the end of the gravel road on Miller’s property to Harris’s property sufficient to enable Harris to have reasonable use of the easement without unduly encumbering Miller’s property.

We affirm the judgment of the trial court insofar as it grants an exclusive easement to Harris across Miller’s land. We remand the cause, however, for the trial court to provide a description of the easement from the end of the gravel road on Miller’s property to Harris’s property sufficient to enable Harris to have reasonable use of the easement without unduly encumbering Miller’s property.

AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS.

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


author: SHAW, Judge. BASCHAB, Judge,

text:
    Em SATTERWHITE v. CITY OF AUBURN.
    CR-03-2095.
    Court of Criminal Appeals of Alabama.
    March 3, 2006.
    Rehearing Denied April 14, 2006.
    Certiorari Denied June 9, 2006 Alabama Supreme Court 1051040.

      Gregory Farzan Yaghmai, Birmingham, for appellant.
    Patrick C. Davidson and Matthew White, Opelika, for appellee.
   SHAW, Judge.

Em Satterwhite was convicted in the Auburn Municipal Court of criminal trespass in the third degree, a violation of § 13A-7-4, Ala.Code 1975, for an incident that occurred on December 9, 2002, on the premises of Hastings Entertainment, Inc. (“Hastings”), a book and video store in Auburn. Satterwhite appealed for a trial de novo in the circuit court, and after a jury trial, was again convicted of criminal trespass in the third degree. She was sentenced to 30 days’ in the county jail.

The City of Auburn claimed that Satter-white was guilty of criminal trespass in the third degree because, it alleged, she disobeyed a lawful order and refused to leave the Hastings store after being asked to leave by Hastings’s management. Satter-white’s defense was that although a Hastings manager had requested that she leave Hastings with her dog, which she says is a service animal, she was not guilty of criminal trespass in the third degree because, she argued, the request was not a lawful order under the Americans with Disabilities Act of 1990 (“ADA”).

At trial, Hap Greg, a corporal with the Auburn police department, and Robin Rich, a patrol officer with the Auburn police department, testified for the prosecution. Satterwhite was the sole witness for the defense.

Cpl. Greg testified that on December 9, 2002, the Auburn police department “received a complaint from a Satterwhite subject in reference to harassment at Hastings,” and he responded to the call. (R. 56.) Cpl. Greg stated that he initially thought that the call had come from someone connected with Hastings, but that when he inquired about the call upon his arrival at Hastings, the on-duty manager told him that “there’s a lady back here with a dog” (R. 58) and then guided him to the store’s reading area. Cpl. Greg also stated that as they walked to the back of the store, the manager told him that the dog had “urinated in the store somewhere” and that “someone [had] complained that [the dog] smelled.” (R. 68.)

Cpl. Greg testified that Satterwhite was seated on a couch in the reading area, reading a magazine, and that there was a dog lying on the floor next to her. He stated that the dog had on a regular collar with a six- or eight-foot walking leash attached to the collar. Cpl. Greg testified that he told Satterwhite that there had been some complaints about her dog— “that the dog was smelly and that the dog had urinated in the store” (R. 60) — and that the management had asked her to leave. According to Cpl. Greg, Satter-white responded, “[M]y dog does not smell.” (R. 60.) Cpl. Greg then asked Satterwhite “is this some type of a service animal?” and she said, “yes.” (R. 61.) However, he then asked her “what type of service does this dog give you?” (R. 61.) Cpl. Greg said that Satterwhite just sat there and stared and would not respond to any of his questions except when he asked her “Do you have any disabilities, anything this dog would assist you with?” (R. 61), at which point she told him, “You can’t ask me that.” (R. 61.)

Cpl. Greg testified that before December 9, 2002, he had not had any dealings with service animals other than “[o]ne of our dispatchers [had] a seeing eye dog” (R. 79); that he had not had any training regarding service animals in a place of business (R. 79); that he did not have any knowledge about service animals under the ADA or under what circumstances a service animal may be required to leave a place of business (R. 80). He testified that he was aware that “usually [service animals are] trained in some type of way.” (R. 81.) Cpl. Greg also testified that on December 9, 2002, he did not “observe any urine anywhere” and he did not “smell any urine anywhere” (R. 82), but that he remembers that Satterwhite’s dog “did smell.” (R. 82.)

Cpl. Greg said that he “begg[ed] and plead[ed]” with Satterwhite “for about an hour” to take her dog out of the store because “[t]hey don’t want you here with your dog” (R. 62), and that when “Satter-white finally said, ‘I’m not leaving’ ” (R. 62), he told the manager to tell Satterwhite to leave the store and that if she did not leave, he would arrest her. The manager then said to Satterwhite, “Ma’am, I’m asking you, you must leave the store now.” (R. 63.) Cpl. Greg testified that he “waited a few minutes and she just looked at us” (R. 63), and then he said to her, “ ‘[Ms.] Satterwhite, I’m a police officer. The management has asked you to leave. Now, I am directing you, you must leave now or I’m going to place you under arrest.’ ” (R. 63.) He further testified that after he told Satterwhite this, “[s]he just stared at me. And after about two or three minutes I said, ‘You’re under arrest for criminal trespassing. Come with me.’ And I put handcuffs on her.” (R. 63.)

Cpl. Greg testified that after he had placed the handcuffs on Satterwhite, she walked to his police car and he transported her to the jail. He said that Satterwhite “[w]alked just fine” to his patrol car, and that an animal-control officer was called to come pick up Satterwhite’s dog. (R. 64.) Cpl. Greg stated that Satterwhite did not inform him that she was disabled until after he had placed her under arrest and transported her to the police station for processing.

Officer Rich testified that when he arrived at Hastings on the evening of December 9, 2002, Cpl. Greg was already at the scene, speaking with a Hastings employee and Satterwhite. Officer Rich stated that he heard Cpl. Greg tell Satterwhite that there had been some complaints about the dog being in the store — the dog had an “odor or [the dog] had urinated on something” (R. 95) — and that the store’s management had requested that she leave the store. He testified that Satterwhite’s initial response was that “she needed the dog” (R. 91), and that

“[Cpl. Greg] questioned [Satterwhite] when she said she needed the dog. He asked if it was a service animal; asked if the dog performed any function for her; [asked] if she had any health problems that would require a service animal. And at about that point, she just quit talking to him. She just sat there stone-faced and didn’t speak to him any more after that.”

(R. 91.) Officer Rich testified that he heard the manager ask Satterwhite to leave; that Satterwhite “just sat there” (R. 92); that Cpl. Greg told Satterwhite that she needed to leave because she had been asked to leave and that if she did not leave, she would be arrested; that Satterwhite continued to sit there without saying a word; and that Cpl. Greg arrested Satter-white for criminal trespass. Officer Rich stated that they were at Hastings for “quite some time” that evening (R. 95) and that he estimated that they were there for approximately “45 minutes to an hour.” (R. 95.) Officer Rich said that after Sat-terwhite’s arrest, he remained outside with the dog for 10 to 20 minutes until the animal-control officer arrived and took possession of the dog.

On cross-examination, Officer Rich testified that he did not observe or smell any urine (R. 95), and that he “didn’t notice any” odor from Satterwhite’s dog. (R. 95-96.) He also stated that he did not observe Satterwhite’s dog bark or try to bite anyone. (R. 96.)

In her defense, Satterwhite testified that in 2000 the arthritis in her knees became worse, and she was diagnosed with fibro-myalgia and diffused pain syndrome. Sat-terwhite said that she applied for Social Security disability benefits in 2001 after her doctor had told her that she could no longer work or go to school and that she was approved to receive Social Security disability benefits. However, Satterwhite did not elaborate as to why her doctor told her that she could not work or go to school and she did not elaborate as to the nature of the Social Security disability determination. Satterwhite stated that she researched what was required for an animal to be classified as a service animal and learned that it was not necessary for the animal to be trained at a school. She stated that she trained Dingo, a mixed-breed dog that had originally been the family’s pet, to assist her with the problems she was experiencing and that Dingo began working as her service animal in 2001.

Satterwhite stated that at the time of the incident at Hastings in December 2002, she was on “[s]everal kinds of medication for [her] arthritis and knees” and that even though she was taking “about 40 pills at day” (R. 109), she was still having problems with her knees and joints and she was having problems “getting around.” (R. 109.) She also testified that although “[i]t was difficult for [her] to get around, [she] was moving around better because [she] had Dingo.” (R. 119.) Satterwhite said that in December 2002, Dingo “helped [her] get up and down and helped [her] to move around” (R. 110) and that “without the assistance of Dingo” she was not “able to get up and just walk around like nothing was wrong.” (R. 119-20.)

Satterwhite stated that she went to Hastings on December 9, 2002, to see if a book she had ordered had come in, and that she had been to Hastings before with Dingo many times and had never been asked to leave. However, when she walked in the door of Hastings on December 9, 2002, Satterwhite said, a man who identified himself as the manager told her that she could not bring her service animal into the store because food was being sold there and the dog’s presence would constitute a health-code violation. Satterwhite testified that although she told the manager that Dingo was a service animal, he said that it did not matter. Satterwhite then told the manager that she was there to check on a book order and then proceeded to the book department. According to Satterwhite, the person in the book department told her that she needed to get the dog out of there or she would be arrested.

Satterwhite testified that at that point she used her cellular telephone to call the police and tell them that she was a disabled person in a store with her service animal, that she was being threatened, and that she would like some assistance. About 15 minutes later, Satterwhite said, she received a telephone call from the police dispatcher, who asked where in the store she was located. Thereafter, two police officers and the assistant manager of Hastings came back to where she was sitting, and one of the police officers asked her if there was some reason that she needed a service animal. Satterwhite testified that she told the police officer that he could not ask questions about her personal health, but that he could ask what type of service the dog provided, and that she “went on to tell [the police officer] that [the dog] was a mobility-assistance animal.” (R. 117.) Satterwhite stated that she did not go into any detail about what a mobility-assistance animal does because the police officer did not seem receptive to what she was telling him. Satterwhite denied that she sat there stone-faced, refusing to answer questions posed by the police officer. However, she admitted that she refused to answer the question regarding her personal medical condition. Sat-terwhite testified that she volunteered information to the police officers and even told them that the information she was providing could be verified on the Department of Justice, Americans with Disabilities Act Web site. Satterwhite stated that only about 10 minutes passed between the time the police officer began to speak to her and the time he arrested and handcuffed her and that Cpl. Greg seemed eager to place her under arrest.

Satterwhite stated that the police officer also told her that he could ask her about anything he wanted and that she was violating the health code by having the dog in the store. Satterwhite said that she told the officer that she had spoken with someone from the state health department regarding service animals and the health code and that it was not a violation of the health code for her to have a service animal in a business that served food. She stated that the officer then told her that she was “just a selfish little girl who thought that the laws didn’t apply to [her] and that [she] could take [her] dog anywhere” and that if she did not leave the store at once, he would arrest her. (R. 119.)

Satterwhite testified that Dingo neither urinated anywhere in the store nor caused a foul odor, and that she did not growl or bark at anyone. Satterwhite also stated that, in fact, she had to ask two people not to pet Dingo because she was a service animal, not a pet.

I.

At trial, Satterwhite submitted six proposed jury instructions regarding the ADA and the use of a service animal, and she argued that those proposed instructions were relevant in this case because the jury needed to have some understanding of the ADA in order to understand the basis of her defense. The trial court stated that it was refusing the requested instructions because they “are all abstract statements of law that are not related to this case.” (R. 141.)

After the jury had retired for deliberations, it sent out a note with the following question: “Does dog or ADA factor into this decision?” (R. 157.) The trial court answered this question in the negative, stating that Satterwhite had not presented any “evidence at all of what the ADA says” and that she had not brought “any kind of expert in to testify about the divisions of [the] ADA that might have prevented a criminal trespass from being a legal charge in this case.” (R. 158.) Satter-white’s attorney objected, stating that the ADA was “the crux of our defense” — that based on the ADA “[Satterwhite] didn’t disobey a lawful order” and that “we wouldn’t need an expert in this case because that’s the federal law.” (R. 158.)

On appeal, Satterwhite contends that the trial court erred in refusing her proposed jury instructions regarding the ADA and that the ADA did not apply to this case. (Issues I and II in Satterwhite’s brief.)

An accused has the right to have the jury charged on “ ‘any material hypothesis which the evidence in his favor tends to establish.’ ” Ex parte Stork, 475 So.2d 623, 624 (Ala.1985). “ ‘In determining whether an instruction was supported by the evidence the question is not whether the Supreme Court or Court of Criminal Appeals believes the evidence, but simply whether such evidence was presented.’ ” Id. “[E]very accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility.” Ex parte Chavers, 361 So.2d 1106, 1107 (Ala.1978). “ ‘ “It is a basic tenet of Alabama law that ‘a party is entitled to have his theory of the case, made by the pleadings and issues, presented to the jury by proper instruction, ... and the [trial] court’s failure to give those instructions is reversible error.’ ” ’ ” Ex parte McGriff, 908 So.2d 1024, 1035 (Ala.2004), quoting Winner Int’l Corp. v. Common Sense, Inc., 863 So.2d 1088, 1091 (Ala.2003), quoting in turn other cases. “In order to determine whether the evidence is sufficient to necessitate an instruction and to allow the jury to consider the defense, we must view the testimony most favorably to the defendant.” Ex parte Pettway, 594 So.2d 1196, 1200 (Ala.1991). Thus, the disposi-tive question here is whether, viewing the evidence in the light most favorable to Satterwhite, Satterwhite presented sufficient evidence to necessitate jury instructions on the ADA.

In 1990, Congress passed the ADA. The following is the stated purpose of the ADA:

“(b) Purpose
“It is the purpose of this chapter — ■
“(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;
“(2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;
“(3) to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities; and
“(4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.”

42 U.S.C. § 12101(b).

Under the provisions of the ADA,

“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

42 U.S.C. § 12182(a).

The ADA defines the term “disability” as:

“(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
“(B) a record of such an impairment; or
“(C) being regarded as having such an impairment.”

42 U.S.C. § 12102(2).

In Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998), the United States Supreme Court set out a three-step inquiry to determine whether a particular condition falls within the definition of a disability under 42 U.S.C. § 12101(2)(A). First, it must be determined whether the condition is a physical or mental impairment. Second, the affected life activity must be identified and it must be determined whether the affected life activity “constitutes a major life activity under the ADA.” Bragdon, 524 U.S. at 631, 118 S.Ct. 2196. Third, it must be determined whether “the impairment substantially limited the major life activity.” Bragdon, 524 U.S. at 631, 118 S.Ct. 2196.

The ADA does not define the terms “substantially limits” or “major life activities.” However, the “courts may rely upon the regulations promulgated by the Equal Employment Opportunity Commission (‘EEOC’) for guidance.” Gordon v. E.L. Hamm & Assocs., Inc., 100 F.3d 907, 911 (11th Cir.1996). In Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), the United States Supreme Court stated that the EEOC regulations define the elements of a “disability” in the following manner:

“[A] ‘physical impairment’ includes ‘[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.’ [29 C.F.R.] § 1630.2(h)(1). The term ‘substantially limits’ means, among other things, ‘[u]n-able to perform a major life activity that the average person in the general population can perform’; or ‘[significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.’ § 1630.2<j). Finally, ‘[m]ajor [l]ife [activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.’ § 1630.2(1).”

527 U.S. at 479-80,119 S.Ct. 2139.

“The definition of disability also requires that disabilities be evaluated ‘with respect to an individual’ and be determined based on whether an impairment substantially limits the ‘major life activities of such individual.’ [42 U.S.C.] § 12102(2). Thus, whether a person has a disability under the ADA is an individualized inquiry. See ... 29 CFR pt. 1630, App. § 1630.20) (‘The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual’).”

527 U.S. at 483, 119 S.Ct. 2139 (emphasis added).

“In deciding whether an individual is substantially limited in a major life activity, courts should consider the nature and severity of the impairment; the duration or expected duration of .the impairment; and the permanent or long term impact, or expected permanent or long term impact, of the impairment. [29 C.F.R.] § 1630.2(j)(2).”

Penny v. United Parcel Serv., 128 F.3d 408, 414 (6th Cir.1997).

“[T]he first requirement that any ADA claimant must meet is to demonstrate that he or she is disabled within the meaning of the statute and regulations.” Penny, 128 F.3d at 414.

“A physical impairment, standing alone, is not necessarily a disability as contemplated by the ADA. The statute requires an impairment that substantially limits one or more of the major life activities.”

Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir.1995). “[Ijndividuals ... claiming the Act’s protection[ ] [must] prove a disability by offering evidence that the extent of the limitation in terms of their own experience ... is substantial.” Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 567, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999). “[MQoderate difficulty or pain experienced while walking does not rise to the level of a disability.” Penny, 128 F.3d at 415.

“Although the record clearly indicates that Penny suffers an impairment that affects to some degree his ability to walk, he has not ‘adduced sufficient evidence from which a factfinder reasonably could conclude that the nature and severity of his injury significantly restricted his ability to walk as compared with an average person in the general population.’ Kelly v. Drexel University, 94 F.3d 102,105 (3rd Cir.1996).”

Penny, 128 F.3d at 415. See also Albert-son’s, 527 U.S. at 567, 119 S.Ct. 2162 (noting that the United States Court of Appeals for the Ninth Circuit “did not identify the degree of loss suffered by Kirkingburg, nor are we aware of any evidence in the record specifying the extent of [KirMngburg’s] visual restrictions”).

Federal regulations implementing the ADA state that “[generally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability.” 28 C.F.R. § 36.302(c)(1).

“Service animal means any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.”

28 C.F.R. § 86.104.

There is no doubt that Hastings is a “public accommodation” within the meaning of the regulations. See 28 C.F.R. § 36.104, defining “public accommodation” and “place of public accommodation.” However, by seeking to invoke the protections of the ADA, Satterwhite had to present evidence showing that her ability to walk or move about was substantially and significantly restricted by her impairment, so that a service animal was needed to assist her with mobility. See Penny, 128 F.3d at 414-15 (finding that Penny had failed to establish that his impairment rose to the level of a disability under the ADA as there was no testimony concerning how the impairment hindered his ability to walk — the only statements Penny made diming his deposition were “T limp on occasion’ ” and “ ‘[i]t hurts to do my job everyday’ ” and “ ‘[s]ometimes it hurts to walk’”); Kelly v. Drexel Univ., 94 F.3d 102, 105-08 (3d Cir.1996) (finding that while Kelly is impaired, he did not establish he was disabled — during his deposition, Kelly testified that he believed that “he could not walk ‘more than a mile or so’ and that he ‘certainly couldn’t jog,’ ” and that when climbing stairs, he would “ ‘have to pace [himjself slower, and [he] would, naturally, hold onto the rail’”); Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025 (5th Cir.1999) (finding that while Talk had some impairment in her ability to walk, it did not meet the criteria for a disability under the ADA — Talk stated that she ‘“walk[s] with a limp and move[s] at a significantly slower pace than the average person’ ” and that “extreme cold causes her difficulty in walking”); and Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944, 951 (7th Cir.2000) (finding that Moore’s limitations did not meet the criteria for a disability under the ADA — Moore stated during his deposition that he “ ‘consistently’ ” walked distances of less than a mile, that a mile walk “‘wouldn’t be any problem as long as [he’s] paying attention to what [he’s] doing,’ ” and that his arthritis affected the “ ‘rate and pace’ ” of his activities as opposed to his ability to perform the activities).

Satterwhite testified that she had been diagnosed with arthritis, fibromyalgia, and diffused pain syndrome; that her doctor told her that she could no longer work or go to school; that she had been approved for Social Security disability benefits; that at the time of the incident at Hastings in December 2002, she was having problems with her knees and joints and she was having problems “getting around” even though she was taking “about 40 pills a day” (R. 109); that Dingo was her service animal; that “[i]t was difficult for [her] to get around [but she] was moving around better because [she] had Dingo” (R. 119); that Dingo “helped [her] get up and down and helped [her] to move around” (R. 110); and that “without the assistance of Dingo” she was not “able to get up and just walk around like nothing was wrong.” (R. 119-20.) Although Satterwhite’s defense to the trespass charge was that she was covered by the ADA and that the request of the Hastings manager that she leave the premises with her service animal was not a lawful order, our review of the record reveals that Satterwhite did not present sufficient evidence during her trial indicating that she was, in fact, covered by the ADA.

The fact that a person has been diagnosed with an impairment is not determinative as to whether that person is disabled under the ADA. Therefore, the fact that Satterwhite testified that she suffered from arthritis and had been diagnosed with fibromyalgia and diffused pain syndrome was not sufficient to establish that she fell within the ADA. Siitton, 527 U.S. at 483, 119 S.Ct. 2139. Furthermore, Sat-terwhite’s description of her limitations— that she was having problems with her knees and joints and having problems “getting around” (R. 109) — was vague and did not provide any details as to exactly how her impairment substantially limited her mobility. It is not uncommon for an individual suffering from arthritis to experience problems “getting around.” However, “moderate difficulty experienced while walking does not rise to the level of a disability.” Talk, 165 F.3d at 1025. Sat-terwhite did not present any evidence showing that any of her conditions impaired her ability to walk or to move about to such an extent that she was either unable to walk or move about or was significantly restricted in her ability to walk or move about as compared with the average person.

Although Satterwhite testified that her doctor had told her that she could no longer work or go to school and that she had been approved to receive Social Security disability benefits, she did not provide any other details regarding why her doctor had told her that she was no longer able to work or to go to school or why she was approved to receive Social Security disability benefits. The fact that the Social Security Administration (“SSA”) decided to grant disability benefits to Satterwhite also does not necessarily mean that she has a disability that comes within the ADA, i.e., a substantial limitation in her ability to walk or move about, for which a trained service animal would be needed. See Weigel v. Target Stores, 122 F.3d 461 (7th Cir.1997). There was no evidence presented indicating that Satterwhite’s doctor had told her that she could no longer work or go to school or that the basis for her receiving Social Security disability benefits was causally related to the fact that she was experiencing some problems “getting around.” (R. 109.) Satter-white did not specifically testify, or present any evidence to show, that her doctor had told her that she could not work or go to school because of her arthritis, fibromyal-gia, or diffused pain syndrome, and she did not specifically testify, or present any evidence to show, that she was awarded Social Security disability benefits because of these specific conditions.

However, even assuming that the trial court and the jury could have reasonably inferred from Satterwhite’s testimony that her doctor’s statements concerning work and school and the determination by the SSA that she was entitled to disability benefits were based on the fact that she has arthritis and fibromyalgia and suffers chronic pain, neither the trial court nor the jury could have found that the doctor’s statements and the SSA’s findings were based on the fact that Satterwhite’s ability to walk or move about was substantially impaired, at least without resorting to pure speculation. Under the standard of review that governs our resolution of this issue, this Court is required to view the evidence in the light most favorable to Satterwhite and to determine whether the evidence was sufficient to create a reasonable inference that at the time of the incident she was suffering from a disability as defined by the ADA, and that she needed a service animal to assist her in coping with that disability. The evidence presented at trial indicates that Satterwhite does indeed suffer from several physical impairments that might very well render her disabled within the meaning of the ADA. However, it would have required pure speculation on the part of the trial court and the jury based on the limited evidence presented at trial to find that Satterwhite had a disability that substantially limited her mobility and required the assistance of a service animal. The evidence presented in this case does not create the reasonable inference that would be necessary for this Court to hold the trial court in error for refusing at least some of the requested instructions.

Given the state of the record — specifically that Satterwhite presented no evidence that tended to establish that she needed a service animal to assist her with a disability covered by the ADA at the time of the December 2002 incident at Hastings — we hold that the trial court did not err in refusing her proposed jury instructions regarding the ADA and in telling the jury that the ADA did not apply to the facts of this case.

II.

Satterwhite contends that the trial court erred when it allowed the City to question her regarding a “proof of claim” that she had filed against the City of Auburn following this incident as a prelude to the potential filing of a civil suit seeking damages because, she says, this evidence was immaterial and irrelevant. (Issue III in Satterwhite’s brief.) The City argues that this evidence was offered to show bias and to attack Satterwhite’s credibility.

“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 401, Ala. R.Evid. The credibility of a witness is always relevant and material. See, e.g., Mickle v. State, 226 Ala. 616, 617, 148 So. 319, 320 (1933) (“Any fact tending to discredit the testimony of an adverse witness is always relevant and material.”). Rule 616, Ala.R.Evid., provides that “[a] party may attack the credibility of a witness by presenting evidence that the witness has a bias or prejudice for or against a party or the case or that the witness has an interest in the case.”

“The case law of this state has consistently held the institution of a civil suit arising out of the same facts as a criminal prosecution to be within the permissible scope of cross-examination to show bias on the part of the witness. This rule is augmented by the public policy of this state as codified in § 12-21-137, Code 1975, which mandates the right of every party to a ‘thorough and sifting’ cross-examination of the opponent’s witnesses. Riley v. City of Huntsville, 379 So.2d 557 (Ala.1980).
“The general rule, from which the more narrow rule here under consideration evolved, is stated in Green v. State, 258 Ala. 471, 64 So.2d 84 (1953):
“ ‘It is always competent on cross-examination to make such interrogation of a witness as would tend to test his interest, bias or prejudice or to illustrate or impeach the accuracy of his testimony.’
“See also, Morrison v. State, 267 Ala. 1, 100 So.2d 744 (1957).
“In the discharge of its fact finding functions the jury’s search for the truth includes the paramount right to consider a witness’s motivation, and any evidence testing ‘his interest, bias or prejudice’ so as to ‘illustrate or impeach the accuracy of his testimony’ is a competent, material and relevant subject of cross-examination, and the jury’s right to be given such evidence is, of itself, part of the fact finding process. Green v. State, supra.”

Ex parte Brooks, 393 So.2d 486, 487-88 (Ala.1980).

“The majority of the cases on this issue concern ‘the right of a defendant to cross-examine a prosecution witness concerning the contemplation of filing or pendency of a civil action against him.’ Gunn v. State, 387 So.2d 280, 283 (Ala.Crim.App.), cert. denied, 387 So.2d 283 (Ala.1980). However, the State also has the right to cross-examine the defendant or a defense witness on this matter. Gunn, supra. Furthermore, the State may cross-examine a defendant concerning a civil action against a third party. Reeves v. State, 432 So.2d 543 (Ala.Crim.App.1983).”

Calhoun v. State, 487 So.2d 265, 267 (Ala.Crim.App.1986). See also Gunn v. State, 387 So.2d 280, 283 (Ala.Crim.App.1980) (“While we have not found a case from this jurisdiction on point concerning the cross-examination of an accused or defense witness concerning his contemplated or pending civil action against a prosecuting witness, we see no reason why the State should not be accorded the same right of cross-examination in this instance as accorded a defendant.”).

We have reviewed the transcript (R. 132-33) and find no error on the part of the trial court in allowing the City to question Satterwhite about the document she had filed with the City of Auburn. The testimony concerning the filing of that document was relevant to demonstrate bias on Satterwhite’s part. The issue of Satter-white’s credibility was for the jury.

III.

Satterwhite also contends that the trial court erred when it did not grant her motion for a judgment of acquittal because, she says, the City failed to provide enough evidence that she was unlawfully on the premises of Hastings. (Issue IV in Satterwhite’s brief.) We disagree.

“ ‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). “ ‘When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.’ ” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990).

The evidence indicated that Satterwhite did not leave Hastings after being informed that she would not be allowed to remain in the store with her dog and she was asked to leave by both a Hastings manager and Cpl. Greg. This evidence was sufficient to warrant submitting the case to the jury. Therefore, the trial court properly denied Satterwhite’s motion for a judgment of acquittal.

IV.

Finally, Satterwhite contends that her sentence of 80 days’ imprisonment in the county jail is so disproportionate to the offense charged that it is cruel and unusual punishment and constitutes a violation of her Eighth Amendment rights. See Brown v. State, 611 So.2d 1194, 1198, n. 6 (Ala.Crim.App.1992). (Issue V in Satterwhite’s brief.)

“Criminal trespass in the third degree is a violation.” § 13A-7-4(b), Ala.Code 1975. “Sentences for violations shall be for a definite term of imprisonment in the county jail, not to exceed 30 days.” § 13A-5-7(b), Ala.Code 1975. Satterwhite’s sentence clearly falls within the statutory range. We have reviewed the record and find no abuse of discretion on the part of the trial court in sentencing Satterwhite to 30 days’ imprisonment in the county jail. Thus, Satterwhite is not entitled to any relief on this issue.

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

AFFIRMED.

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

BASCHAB, J., concurs in the result, with opinion.

BASCHAB, Judge,

concurring in the result.

In this case, the appellant alleges that she did not have to obey the officer and leave the premises of Hastings because his order was illegal under the ADA. However, the appellant was not being asked to leave because she was disabled; she was not being asked to leave because she was accompanied by a dog. In fact, according to her own testimony, she had been allowed to enter Hastings with her dog on previous occasions. She was being asked to leave because her dog smelled and had urinated on the floor. This determination was made by the manager, who had the authority to make such a determination and who then told the police officer that he wanted the appellant to leave with her dog. The issue here is whether she remained unlawfully after her right to enter was revoked, in this case, because her dog smelled and urinated on the floor. Whether or not a dog is a service animal accompanying a disabled person, it still cannot create a disturbance. What if the dog had growled or barked constantly or shed hair everywhere? Here, the dog was creating an environment that was not conducive to conducting business, according to the manager. It is because of this the appellant was asked to leave. The jury, therefore, need not and should not have been instructed to apply or interpret federal statutory law (ADA). Neither the facts nor the law required such instructions, and we need go no further. Therefore, I respectfully concur in the result reached by the majority in this case.

      . Section 13A-7-4(a), Ala.Code 1975, provides:
      "A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises.”

      . The State does not contend that conflicting state law should take precedence over the ADA and the regulations implementing its provisions. In any event, we note that the language of the ADA indicates that Congress intended that the ADA preempt state law with which it conflicts. See, e.g., Oconomowoc Residential Programs, Inc. v. City of Greenfield, 23 F.Supp.2d 941 (E.D.Wis.1998); and Green v. Housing Auth. of Clackamas County, 994 F.Supp. 1253 (D.Ore.1998). See also Am.Jur.2d New Topic Service, Americans With Disabilities Act: Analysis and Implications §§ 1, 2, and 690 (1992).

      . We note that at the hearing on Satterwhite’s motion to alter, amend, or vacate the sentence, Satterwhite presented evidence indicating that the Social Security Administration found that she had "severe impairments of fibromyalgia, patella febrile dysfunction, generalized anxiety disorder, and recurrent major depressive disorder.” See Defendant’s Exhibit # 2, detailing the decision of the administrative law judge to award disability benefits to Satterwhite. (R. 166.) However, that exhibit was not presented at trial and, therefore, cannot be considered by this Court as a basis for holding the trial court in error for refusing the requested jury instructions.

      . Although the definition of a "disability” under the SSA is similar to the definition of a "disability” under the ADA, the two definitions are not the same. See 42 U.S.C. § 423(d)(1)(A) for the definition of a "disability” under the SSA — an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”

      . Indeed, the fact that the SSA found that Satterwhite suffered from generalized anxiety disorder and recurrent major depressive disorder suggests that Satterwhite was awarded benefits due, in no small part, to the existence of these psychological conditions, neither of which would appear to require the assistance of a service animal for mobility. The written findings of the administrative law judge who granted Satterwhite's request for Social Security benefits, see note 3, supra, indicate that Satterwhite suffers from several physical and psychological disorders. It is unclear, however, whether the psychological disorders were independent of, or directly related to, Satter-white's physical disorder. Furthermore, it does not appear that the administrative law judge made a finding that Satterwhite’s ability to walk was substantially impaired or that she was otherwise immobile. In any event, as noted previously, this evidence was submitted to the trial court following sentencing and cannot form the basis for holding the trial court in error for refusing the requested jury instructions.

      . Some of the requested instructions were redundant and could properly have been refused for that reason alone.


author: PER CURIAM.

text:
    Ex parte Tommy J. GILLENTINE. (In re State of Alabama v. Tommy J. Gillentine).
    CR-05-1308.
    Court of Criminal Appeals of Alabama.
    June 9, 2006.

      Tommy J. Gillentine, pro se.
    Troy King, atty. gen., and Andy Scott Poole, and Jack W. Willis, asst, attys. gen., for respondent.
   PER CURIAM.

The petitioner, Tommy J. Gillentine, filed this petition for a writ of habeas corpus directing Judge John H. Bentley to set bail in a reasonable amount. In February 2001, Gillentine was indicted for two counts of capital murder. In August 2002, Gillentine was convicted of the lesser offense of manslaughter and was sentenced as a habitual felon to life in the penitentiary. We affirmed his conviction on direct appeal by an unpublished memorandum. See Gillentine v. State, 880 So.2d 504 (Ala. Crim.App.2003) (table).

In February 2004, Gillentine filed a petition for postconviction relief pursuant to Rule 32, Ala.R.Crim.P., challenging his manslaughter conviction. The circuit court denied the petition; Gillentine appealed. By order, we dismissed Gillen-tine’s appeal after finding that the circuit court had not ruled on the in forma pau-peris declaration before ruling on the merits of the Rule 32 petition and that its judgment denying the petition was not a valid judgment. Gillentine v. State (CR-03-1946, December 3, 2004).

In March 2006, the circuit court entered a new order granting Gillentine’s Rule 32 petition and setting aside his manslaughter conviction. The circuit court found that there had been reversible error in Gillen-tine’s trial because the jury had not been given a jury instruction on reasonable doubt.

The State then notified the circuit court that it intended to proceed to trial on the original capital-murder charges. Gillen-tine moved that the capital-murder charges be dismissed, because, he argued, he had been acquitted of capital murder when the jury returned a verdict of manslaughter in his first trial. Apparently, that motion was denied. Gillentine then moved that bail be set. Judge Bentley declined to set bail. Gillentine then filed this original petition for a writ of habeas corpus. Gillentine’s trial is scheduled to begin on June 19, 2006.

Gillentine argues that he is entitled to a reasonable bail because, he argues, the Double Jeopardy Clause of the United States Constitution forbids his prosecution for capital murder after he was previously convicted of the lesser offense of manslaughter.

The State asserts that because there was a structural defect in Gillentine’s first trial — the trial judge failed to give the jury an instruction on reasonable doubt — Gil-lentine’s retrial on the original capital-murder charges is not barred. Accordingly, it asserts, the circuit court correctly denied bail because Gillentine is awaiting trial on capital-murder charges. It cites the United States Supreme Court’s opinion in Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), in support of its assertion.

Generally, a conviction for a lesser-included offense is an implied acquittal of a greater offense. See Ex parte Dorsey, 881 So.2d 538, 538 (Ala.2003). However, this conclusion is based on the premise that the first proceedings are valid and legal. If the first proceedings are invalid or void, then there is no violation of the Double Jeopardy Clause in any subsequent proceeding. See Dutton v. State, 807 So.2d 596 (Ala.Crim.App.2001).

“ ‘It is essential to constitute jeopardy that the court in which the accused is put upon his trial shall have jurisdiction. If it is without jurisdiction, there can be no valid conviction, and hence there is no jeopardy.’ Benjamin F. Cox v. State, 585 So.2d 182, 192 (Ala.Crim.App.1991), (quoting Anthony G. Cox v. State, 462 So.2d 1047, 1051 (Ala.Crim.App.1985)).”

807 So.2d at 598.

In Sullivan v. Louisiana, the United States Supreme Court addressed the impact of a jury instruction that incorrectly defined reasonable doubt. The United States Supreme Court stated:

“In [Arizona v.] Fulminante, [499 U.S. 279 (1991),] we distinguished between, on the one hand, ‘structural defects in the constitution of the trial mechanism, which defy analysis by “harmless-error” standards,’ 499 U.S., at 309, and, on the other hand, trial errors which occur ‘during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented,’ id., at 307-308, 111 S.Ct., at 1252, 1264. Denial of the right to a jury verdict of guilt beyond a reasonable doubt is certainly an error of the former sort, the jury guarantee being a ‘basic protectio[n]’ whose precise effects are unmeasurable, but without which a criminal trial cannot reliably serve its function, Rose [v. Clark], 478 U.S. [570], at 577 [(1987)]. The right to trial by jury reflects, we have said, ‘a profound judgment about the way in which law should be enforced and justice administered.’ Duncan v. Louisiana, 391 U.S. [145], at 155 [(1968)]. The deprivation of that right, with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error.’

508 U.S. at 281-82, 113 S.Ct. 2078 (emphasis added).

This Court in Davis v. State, 682 So.2d 476 (Ala.Crim.App.1995), found reversible error in' a trial court’s failure to give a jury instruction on reasonable doubt during a capital-murder trial after the defendant had pleaded guilty. Relying on Sullivan v. Louisiana, this Court stated:

“The United States Supreme Court in Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993), stated that an error in an instruction defining reasonable doubt can never be harmless error. Likewise, the failure to define reasonable doubt and to instruct the jury on the burden of proof during a proceeding in which the appellant pleads guilty to capital murder and in which the State is required by statute to prove the appellant’s guilt beyond reasonable doubt cannot be harmless error. ‘ “The inquiry ... is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993).’ Hutcherson v. State, 677 So.2d 1174 (Ala.Crim.App.1994).”

682 So.2d at 482.

The failure to give a jury instruction on reasonable doubt is a structural defect that nullifies the proceedings. Although this Court has never specifically addressed the impact of a structural defect on subsequent trial proceedings, a Louisiana Court of Appeals thoroughly addressed this issue in State v. Langley, 896 So.2d 200 (La.Ct.App.2004). In State v. Langley, the court found that a trial judge’s absences from the courtroom during trial led to a structural defect in the proceedings. In addressing the impact of a structural defect on Langley’s retrial, the Louisiana Court of Appeals stated:

“Generally, in Louisiana, if there are curable defects or errors in a defendant’s first trial, he will either object and obtain relief or his failure to object will operate to cure the defects or errors. However, if the error or defect is not curable, as in the instant case, the defendant has necessarily not been in jeopardy because of the presence of the error or defect. See La.Code Crim.P. art. 595, cmt.(b).
“Our supreme court discoursed on this issue in State v. Goodley, 428 So.2d 648 (La.1982), wherein it was determined that an illegally obtained manslaughter verdict did not bar retrial for first degree murder based on double jeopardy. Subsequently, in State v. Campbell, 95-1409 (La.3/22/96), 670 So.2d 1212, the court held the defendants could be retried for jury tampering after a jury returned an invalid verdict of guilty of attempted jury tampering. Cases such as these which involve an invalid jury verdict or structural error affecting the framework of the trial itself fall outside the general rule articulated in La.Code Crim.P. art. 598. Article 598 provides that when a defendant is found guilty of a lesser degree of the offense charged, the verdict acts as an acquittal of all greater offenses charged in the indictment. However, when a structural error destroys the validity of the proceedings, the trial and resulting verdict are an absolute nullity and can have no effect whatsoever.
“The United States Supreme Court addressed the issue in Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), a case where the defendant was convicted of first degree murder, but the jury deadlocked in the penalty phase. The jury was unable to agree on whether an aggravating circumstance warranted the death penalty; the trial judge, following state law, then entered a life sentence. The Supreme Court held there was no double jeopardy bar to the state’s seeking the death penalty on retrial after the defendant’s successful appeal.
“In Goodley, the court addressed double jeopardy issues which arise when an illegal verdict is found. The court succinctly explained:
“ ‘Where no valid judgment has been obtained, the defendant’s double jeopardy interests simply cannot be considered to extend so far as to compel society to relinquish its interest in punishing one whose guilt is clear by means of a fair and procedurally accurate trial.
“ ‘This principle has been implicitly recognized and followed in Louisiana. In the case of State v. Cook, 396 So.2d 1258 (La.1981) a patent error review revealed an invalid verdict which necessitated the reversal of the defendant’s conviction. In ordering the reversal, this court held that retrial of the defendant was proper because ‘there was no legal verdict rendered, either of conviction or of acquittal’. Cook, supra at 1261. Although the Cook opinion does not directly address the double jeopardy issue, its holding does implicitly recognize that the double jeopardy protection simply does not extend to a situation in which no verdict, either of conviction or acquittal, has been rendered.
“ ‘It therefore becomes evident that the prohibition against double jeopardy does not operate to bar Goodley’s retrial for the crimes of first degree murder or manslaughter. Although there is no doubt that jeopardy did attach in Goodley’s initial trial for first degree murder, such jeopardy is not regarded as having come to an end so as to bar a subsequent prosecution for either first degree murder or manslaughter. Under the Fifth Amendment, where a non-waivable defect, such as an illegal verdict, prevents a jury from delivering either a conviction or acquittal at a defendant’s first trial, that defendant cannot avail himself of the plea of double jeopardy.’
“Goodley, 423 So.2d at 651.
“The Goodley and [United States v.] Mortimer [, 161 F.3d 240 (3d Cir.1998),] cases characterize the verdict resulting from structural error as a nullity. The concept of nullity in criminal proceedings has long been distinguished from mere error, the latter of which may or may not affect the validity of the verdict.”

896 So.2d at 210-11.

In this case, Gillentine’s conviction resulting from his first trial was reversed because the court failed to give a jury instruction on reasonable doubt. The failure to give a reasonable-doubt instruction is a structural defect that nullifies the proceedings. See Sullivan v. Louisiana, supra. “[W]hen a structural error destroys the validity of the proceedings, the trial and resulting verdict are an absolute nullity and can have no effect whatsoever.” State v. Langley, 896 So.2d at 210.

Accordingly, Gillentine is to be retried on the original charges of capital murder. Art. I, § 16, Ala. Const.1901, provides:

“That all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great; and that excessive bail shall not in any case be required.”

(Emphasis added.)

Judge Bentley acted within his discretion in denying bail in this capital-murder case. This petition for a writ of habeas corpus is due to be denied.

PETITION DENIED.

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

BASCHAB, J., dissents.

      . Gillentine has also filed a petition for a writ of mandamus directing Judge Bentley to dismiss the capital-murder charges and to order that he be retried on the manslaughter charge. We have docketed that petition as CR-05-1261.


author: ANSTEAD, J.,

text:
    Arthur Dennis RUTHERFORD, Petitioner, v. Charles J. CRIST, Jr., etc., et al., Respondent.
    No. SC06-2023.
    Supreme Court of Florida
    Oct. 17, 2006.
   Arthur Rutherford, who is under a pending death warrant, has filed a Petition Seeking to Invoke this Court’s All Writs Jurisdiction and a Motion for Stay of Execution, which is scheduled for October 18, 2006. Rutherford’s petition concerns the Department of Corrections’ denial of a public records request for current lethal injection procedures, followed by the circuit court’s denial of a motion to compel production. The State has filed a response to which it has attached the Department’s procedures governing execution by lethal injection, effective August 16, 2006. We permitted Rutherford to file a reply.

We deny relief. Our review of the current lethal injection procedures, attached to the State’s response, reveals nothing that would cause this Court to revisit our previous conclusions “that procedures for administering the lethal injection as attested do not violate the Eighth Amendment’s prohibition on cruel and unusual punishment.” Rutherford v. State, 926 So.2d 1100, 1113 (Fla.2006) (quoting Hill v. State, 921 So.2d 579, 583 (Fla.2006), and Sims v. State, 754 So.2d 657, 668 (Fla. 2000)).

Accordingly, Rutherford’s petition and motion for a stay of execution are hereby denied. No motion for rehearing will be allowed.

It is so ordered.

LEWIS, C.J., and WELLS, PARIENTE, QUINCE and CANTERO, JJ., concur.

ANSTEAD, J., concurs specially with an opinion.

BELL, J., recused.

ANSTEAD, J.,

concurring specially.

I concur in the majority’s denial of relief because I, too, am bound by the rulings of this Court rejecting similar challenges to the State’s procedures for execution by lethal injection in Hill and Rutherford as cited by the majority. I am troubled, however, by the fact that the State has not at all times made its execution procedures and protocols a matter of public record, and by the fact that since our initial decision in Sims approving the use of lethal injection based substantially on theory, there has been no public evidentiary hearing focused on the purpose and effectiveness of the State’s procedures, and on what actually takes place during the course of an execution by lethal injection. Now that this method of execution has been in place for a number of years we would all benefit by such a hearing.