text:
    Phillip Randall SHAW v. STATE of Alabama ex rel. James HAYES, as sheriff of Etowah County. Vesta Fire Insurance Corporation v. State of Alabama ex rel. James Hayes, as sheriff of Etowah County.
    2050072 and 2050103.
    Court of Civil Appeals of Alabama.
    Sept. 8, 2006.

      Thomas W. Harmon, Anniston, for appellant Phillip Randall Shaw.
    Tom E. Ellis, Birmingham, for appellant Vesta Fire Insurance Company.
    Troy King, atty. gen., and Marc A. Star-rett, asst. atty. gen., for appellee.
   PER CURIAM.

In case no. 2050072, Phillip Randall Shaw (“the claimant”) appeals from a summary judgment entered by the Etowah Circuit Court in favor of the State of Alabama on its claim that a particular parcel of real property apparently owned by the claimant had been forfeited to the State pursuant to § 20-2-93, Ala.Code 1975. In case no. 2050103, Vesta Fire Insurance Corporation (“Vesta”), whose motion to intervene as a party in the State’s forfeiture action was not ruled upon by the trial court, purports to appeal from the same judgment. We reverse and remand the summary judgment based upon the issues raised by the claimant, without reaching the merits of Vesta’s attempted appeal, which we dismiss.

The record, as supplemented, reveals that the claimant was arrested at some time in 1999 by agents of the Etowah County Sheriff on charges of, among other things, trafficking in methamphetamine. Although the date of the claimant’s arrest is unclear, a number of items were seized, pursuant to § 20-2-93, by the “Etowah County Narcotics Task Force/Major Crime Unit” (“the Unit”) on April 15, 1999, including a parcel of real property in Gadsden on which the claimant’s residence was located. A document signed by the claimant dated December 22, 1999, states: “I, Phillip Randall Shaw, do hereby release to the ... Unit[ ] all items on the attached list[ ]” of the property seized on April 15, 1999.

On February 22, 2000, the State, on the relation of the sheriff of Etowah County and acting through the local district attorney, brought an in rem civil action against the parcel of real property, alleging in the complaint that the claimant had been arrested on April 15, 1999; that the parcel had been seized at that time; and that the State “ha[d] probable cause to believe that said property had been used or was intended to be used to facilitate a violation of the controlled substances law of the State of Alabama” so as to subject the parcel to forfeiture under § 20-2-93. The claimant filed an answer admitting the fact and date of his arrest and the seizure of the parcel of real property, but denying the State’s entitlement to relief; subsequently, a man named “Jeff Shaw,” who also claimed ownership of the parcel of real property, was allowed to intervene in the action in May 2000. In March 2003, the case was first set for a trial, which was to be held in June 2003; however, a trial did not take place in June 2003, and the cause was reset in November 2003 for a December 2003 trial and again in January 2004 for a March 2004 trial.

In February 2004, the State filed a motion for a summary judgment on its claim. That motion was supported by the claimant’s “release” of the parcel of real property to the Unit, a copy of the claimant’s deed to the parcel indicating his ownership, a copy of the claimant’s plea agreement as to the three criminal cases in which he was involved, and three criminal judgments finding the claimant guilty of trafficking in methamphetamine, trafficking in amphetamine, and unlawful possession of methamphetamine. Notably, each criminal judgment contained the notation that the claimant “does not waive any rights [he] might have in any civil action.”

The summary-judgment motion was set for a hearing to be held on March 2, 2004. However, the trial court did not hold a hearing on that date. The trial court then entered a series of orders continuing the trial of the cause to September 2004, to December 2004, to February 2005, to June 2005, to August 2005, and then to September 2005; however, the record does not reflect that the State’s summary-judgment motion was set for a hearing after its initial setting.

On August 22, 2005, Vesta filed a motion seeking, among other things, intervention in the action as of right and on a permissive basis. In its motion, Vesta alleged that it had filed an action in 2001 against the State and the claimant seeking a declaration that its policy of insurance on the parcel of real property did not afford coverage and that Vesta’s declaratory-judgment action had been stayed pending the entry of a judgment in the State’s forfeiture action. The trial court rendered an order stating that the motion to intervene would be heard before trial on September 19, 2005.

However, on September 14, 2005, three business days before that trial date, the trial court, without holding a hearing, granted the State’s February 2004 summary-judgment motion, determining (1) that the claimant had been arrested on December 17, 1999, while on the parcel of real property; (2) that the claimant had “voluntarily entered into a written, notarized agreement ... to convey all right, title and interest in” the parcel to the Etowah County Sheriff; (3) that the claimant had “failed and refused to execute the necessary documents to effect the transfer of title to the Sheriff’; and (4) that summary judgment was warranted based upon “the executed agreement of [the] [claimant ... to relinquish the specified real and personal property, coupled with his pleas of guilty to the Trafficking offense and other drug offenses that occurred on the premises that are the subject of this action, the evidentiary submissions in this case, and the attendant facts and circumstances of this case.” Significantly, Vesta’s motion to inteiwene was not ruled upon by the trial court before that judgment was entered.

On September 19, 2005, the claimant filed a motion to vacate the summary judgment, arguing that he had not waived his right to oppose the State’s forfeiture claim, that there had been no hearing on the State’s summary-judgment motion, and that the failure of the trial court to afford him an opportunity to be heard in opposition to the motion was erroneous. Vesta also filed a motion on September 19, 2005, to vacate the summary judgment. The record does not reflect an express ruling on either motion; however, pursuant to Rule 4(a)(3), Ala. R.App. P., the pendency of those postjudgment motions tolled the time for filing notices of appeal, rendering timely both the claimant’s and Vesta’s notices of appeal.

We first consider the claimant’s appeal. Citing Van Knight v. Smoker, 778 So.2d 801 (Ala.2000), the claimant contends that the trial court erred in granting the State’s summary-judgment motion without holding a hearing. We agree. As the Supreme Court noted in Van Knight:

“The Committee Comments to [Rule 78, Ala. R. Civ. P.,] state: ‘It is to be noted that the last sentence of the rule prohibits the granting of a Motion Seeking Final Judgment such as a Motion for Summary Judgment without giving the parties an opportunity to be heard orally.’ (Emphasis added [in Van Knight ].) Rule 56(c), Ala. R. Civ. P., itself entitles the parties to a hearing on a motion for summary judgment. See Hicks v. Alabama Pest Servs., Inc., 548 So.2d 148, 150 (Ala.1989); and Lightsey v. Bessemer Clinic, P.A., 495 So.2d 35, 38 (Ala.1986). Although, in certain limited circumstances, a trial court may rule on a motion for summary judgment without [conducting] a hearing, see Pate v. Roili-son Logging Equip., Inc., 628 So.2d 337, 341 (Ala.1993), once the trial court has set a date for a hearing on the motion, the court must allow the nonmoving party an opportunity to be heard. Hill v. Chambless, 757 So.2d 409 (Ala.2000); and Tharp v. Union State Bank, 364 So.2d 335 (Ala.Civ.App.1978).”

778 So.2d at 805 (final emphasis added). In Van Knight, the Supreme Court held that a trial court could not properly set a hearing on a summary-judgment motion for a particular date; enter an order rescheduling the hearing to a later date; and then enter a summary judgment after conducting a hearing on the original, superseded hearing date, ruling that the non-movant’s attorney was entitled to rely on the court’s notice resetting the hearing date. 778 So.2d at 806.

In this case, the trial court, after the filing of the State’s summary-judgment motion in February 2004, set that motion for a hearing on March 2, 2004. That court set no further hearing on that motion, nor did that court even refer to the pendency of that motion at any subsequent time; instead, that motion was granted, without a hearing, on September 14, 2005, three business days before a scheduled trial date. Although one might reasonably expect a trial court to take up a pending summary-judgment motion on the day of trial before conducting an ore tenus proceeding, a nonmoving party (such as the claimant in this case) has a right under our law to expect that a trial judge, having previously set a date for a hearing on a summary-judgment motion, “will not issue a ruling [on that motion] before that party has had an opportunity to timely respond to the motion.” Hill v. Chambless, 757 So.2d 409, 411 (Ala.2000) (footnote omitted; emphasis added). Viewed in connection with Rule 56(c)(2), Ala. R. Civ. P., the “opportunity” to “timely respond” encompasses the entire period from the filing of a summary-judgment motion until two business days in advance of the date upon which that motion is to be heard. Although the length of time afforded to the claimant to respond to the State’s motion in this case was considerable, it was not all that Rule 56(c)(2), Van Knight, and Hill allow; thus, the trial court’s entry of the summary judgment one day before any response to the State’s motion would arguably have been due constitutes error.

The State contends that Cofield v. City of Huntsville, 527 So.2d 1259 (Ala.1988), and Hicks v. Alabama Pest Services, Inc., 548 So.2d 148 (Ala.1989), mandate affirmance notwithstanding the failure to hold a hearing, essentially invoking the harmless-error doctrine (see Rule 45, Ala. R.App. P.). We disagree. In each of those cases, the Supreme Court determined that the movant’s evidentiary submissions demonstrated that there was no genuine issue of material fact and that the movant was entitled to a judgment as a matter of law. Cofield, 527 So.2d at 1261; Hicks, 548 So.2d at 150 (bad-faith claim).

Here, however, we cannot agree with the State that its motion negated all material fact issues so as to demonstrate the State’s entitlement to a judgment as a matter of law in its favor. Most notably, the State’s evidentiary submissions do not demonstrate that the parcel of real property was “used or intended to be used for the manufacture, cultivation, growth, receipt, storage, handling, distribution, or sale of any controlled substance in violation of any law of this state” so as to be subject to forfeiture under § 20-2-93(a)(8), Ala.Code 1975; that portion of the State’s complaint alleging such facts was expressly denied by the claimant, and the motion and submissions do not otherwise support the trial court’s determinations that the claimant was arrested on the property and that drugs were seized from the property at the time of his arrest. Moreover, the “release” form relied upon by the State in no way indicates an intent to convey title to the parcel (as opposed to possession of the parcel) to the Unit. Thus, we cannot conclude that the summary judgment may properly be affirmed on a harmless-error basis.

We conclude that the trial court erred in failing to hold a hearing on the State’s summary-judgment motion before entering a summary judgment in favor of the State in this case. The summary judgment, therefore, must be reversed, and the cause must be remanded for further proceedings.

Vesta’s appeal is based upon the theory that the summary judgment in favor of the State amounts to an implicit denial of its motion to intervene. Alabama law does indeed afford a party whose motion to intervene has been denied a right to appeal from that decision; in Thrasher v. Bartlett, 424 So.2d 605, 607 (Ala.1982), and Universal Underwriters Insurance Co. v. Anglen, 630 So.2d 441, 442 (Ala. 1993), the Alabama Supreme Court, citing federal authorities in support, concluded that an order denying intervention as of right and an order denying permissive intervention, respectively, were each appeal-able final judgments. Notwithstanding that general principle of appealability, however, we note that “in order to be immediately appealable, an order denying a motion to intervene must be truly final with respect to the proposed intervenor— that is, the order must rule definitively on the party’s participation in the litigation before the [trial] court.” United States v. City of Milwaukee, 144 F.3d 524, 528 (7th Cir.1998) (emphasis added).

In this case, the trial court did not enter such a definitive ruling, and the issues raised by Vesta’s intervention request, such as the precise nature of Vesta’s interest in the parcel of real property, have not been conclusively adjudicated, and it would arguably be presumptuous for this court to tread where the trial court has not yet gone. As we have noted, the summary judgment that purportedly aggrieves Vesta is due to be reversed, thereby obviating the very basis of Vesta’s appeal. We thus dismiss that appeal as moot. However, we would observe that on remand the trial court should apply Rule 24, Ala. R. Civ. P., in determining whether Vesta should be entitled to intervene in the action before that court enters a final judgment on the State’s claim.

2050072 — REVERSED AND REMANDED WITH INSTRUCTIONS.

2050103 — APPEAL DISMISSED.

All the judges concur.

      . One is to exclude intervening weekend days and holidays in computing periods of time set forth in the Rules of Civil Procedure that measure less than 11 days, such as the 2-day period specified in Rule 56(c)(2). See generally Rule 6(a), Ala. R. Civ. P.


source: Caselaw Access Project

author: BRYAN, Judge. MURDOCK, Judge,

license: Public Domain

text:
    Eric B. SHEELEY v. Carol Sheeley CHAPMAN. Ex parte Eric Sheeley. (In re Eric Sheeley v. Clayton K. Taylor).
    2040960 and 2040965.
    Court of Civil Appeals of Alabama.
    Sept. 8, 2006.
    Pittman, J., concurred in the result.
    Murdock, J., concurred in the result, with opinion.

      Jerry M. Blevins, Montgomery, for appellant/petitioner Eric B. Sheeley.
    Submitted on appellant’s brief only in case no. 2040960.
    Lynne R. Thrower and K. David Sawyer, Administrative Office of Courts, Montgomery, for respondent Judge Clayton K. Taylor in case no. 2040965.
   BRYAN, Judge.

These consolidated cases arise from a postdivorce proceeding. In case no. 2040960, Eric B. Sheeley (“the father”) appeals the judgment entered in that post-divorce proceeding insofar as it: (1) ordered him to pay postminority support in the amount of $425 per month; (2) ordered the collection of those payments through an income-withholding order; (3) failed to terminate the father’s child-support payments upon his daughter Britney’s reaching the age of majority; and (4) failed to terminate, upon Britney’s reaching the age of majority, the income-withholding order by which the father’s child-support payments were collected.

We reverse the trial court’s judgment in case no. 2040960 insofar as it: (1) ordered the collection of the father’s postminority-support payments through an income-withholding order; (2) failed to terminate the father’s child-support payments upon Britney’s reaching the age of majority; and (3) failed to terminate, upon Britney’s reaching the age of majority, the income-withholding order by which the father’s child-support payments were collected. In all other respects, we affirm the judgment.

In case no. 2040965, the father petitioned this court for a writ of mandamus ordering the trial court to terminate the income-withholding order by which the father’s child-support payments were collected. Before taking case no. 2040960 under submission, we treated the petition for a writ of mandamus as a motion for a stay of the income-withholding order and issued the stay. Our reversal in case no. 2040960 of the trial court’s judgment insofar as it failed to terminate the income-withholding order by which the father’s child-support payments were collected renders the father’s request for relief in case no. 2040965 moot. Accordingly, we dismiss that case as moot.

The father and Carol Sheeley Chapman (“the mother”) divorced in 1989. They had one child, a daughter named Britney, who was born in 1986. The divorce judgment awarded the mother primary physical custody of Britney, ordered the father to pay child support, and ordered the collection of the child-support payments through an income-withholding order.

In July 2004, the father petitioned the trial court to modify the divorce judgment to award him primary physical custody of Britney. The mother answered the father’s petition and counterclaimed for an award of postminority educational support. Thereafter, the father answered the mother’s counterclaim.

When the case was called for trial on February 24, 2005, the father orally abandoned his claim for primary physical custody of Britney. The trial court then received evidence ore tenus regarding the mother’s counterclaim seeking an award of postminority support.

On May 31, 2005, the father moved the trial court to terminate, upon Britney’s reaching the age of majority, the income-withholding order by which his child-support payments were collected. The mother opposed the father’s motion on the ground that the income-withholding order would be needed to collect any postminority support the trial court might award.

On June 24, 2005, the trial court entered a written judgment. In pertinent part, that judgment stated:

“During trial, the parties stipulated to Britney Sheeley’s aptitude for attendance at college, one of the factors enumerated in Ex parte Bayliss, 550 So.2d 986, 995 (Ala.1989), and its progeny. The court notes that the petition was filed prior to [Britney’s] reaching the age of majority and prior to her attending college at Jacksonville State University in the fall of 2004. The testimony showed that Britney began attending college full time at Jacksonville State University in the fall of 2004 and continued attending college full time in the Spring of 2005, seeking a degree in nursing in her pursuit of becoming a registered nurse. Due to the distance involved in traveling to and from Jacksonville State, [Britney] lives in an apartment closer to campus. Her expenses are approximately $600 per month for rent and utilities, $100 per month for food and $91.00 per month for books. An unspecified amount would cover varying school fees and gasoline to and from school. The only testimony stated that, prior to the move, the child support of more than $400 per month did not always cover gasoline, however, [Britney] was commuting to and from her home in Alexander City prior to her move closer to campus at that time.
“The testimony shows that [the father] has sufficient separate estate, earning capacity and income to pay for one-half of the estimated amount of [Britney’s] basic expenses while attending college. The Court heard testimony concerning the strained relationship between Britney Sheeley and her father, and does not find this fact to have any bearing on the issue of post-minority support, as [the father’s] own actions and conduct have contributed to the strain between he and his child.
“Based on the foregoing, IT IS HEREBY ORDERED AND ADJUDGED that the petition for post-minority support filed by [the mother] is granted. The Court finds that Britney Sheeley has the commitment and aptitude for a college education, and that [the father] shall provide post-minority support to [the mother] in the amount of $425.00 per month. The Court finds that this amount will not put an undue hardship on the father and orders that said post-minority support shall be paid every month, beginning with September, 2004 while [Britney] is enrolled in school and continuing until and including August of 2008 or until Britney Sheeley receives a four year bachelor’s degree, whichever comes first, so long as she is carrying a full load of classes each regular school term and maintaining an overall GPA of 2.5. Payment is to be made each month and shall be payable via income deduction order, with the arrear-age to be deducted at the rate of an additional $75.00 per month until paid in full. [The father] is entitled to proof of Britney’s enrollment and completion of a full load of classes each semester. Within 30 days of registration, [the mother] shall provide to [the father] proof that Britney is enrolled in classes on a full-time basis. Within 30 days of receipt, [the mother] shall provide to [the father] a copy of Britney’s report card. Within 30 days of this Order, [the mother] shall provide copies of Britney’s report cards for the last two semesters.
“IT IS FURTHER ORDERED AND ADJUDGED that [the father] is required to place Britney Sheeley on his health insurance plan within 30 days of this Order and to maintain health insurance on her until she receives a bachelor’s degree or ceases to attend college full time, or reaches the age of 24, whichever [occurs] first. [The mother] must submit all documentation that the health insurance administrator may require to ensure prompt coverage. [The father] is to deliver all insurance cards for Britney Sheeley directly to [the mother] upon receipt.”

The judgment neither terminated the father’s child-support payments upon Britney’s reaching the age of majority nor terminated, upon Britney’s reaching the age of majority, the income-withholding order by which the father’s child-support payments were collected.

On July 11, 2005, the trial court entered a written order denying the father’s May 31, 2005, motion seeking an order terminating, upon Britney’s reaching the age of majority, the income-withholding order by which the father’s child-support payments were collected. Also on July 11, 2005, the trial court entered an income-withholding order to collect the postminority support of $425 per month the trial court had awarded the mother in the judgment entered on June 24, 2005.

On July 18, 2005, the father moved the trial court to alter, amend, or vacate the judgment entered on June 24, 2005. Among other things, that motion sought an amendment of the judgment to terminate the father’s child-support payments upon Britney’s reaching the age of majority and to terminate, upon Britney’s reaching the age of majority, the income-withholding order by which the father’s child-support payments were collected. On August 3, 2005, the trial court denied the father’s postjudgment motion. The father then appealed to this court. The father also filed a separate petition seeking a writ of mandamus ordering the trial court to terminate the income-withholding order by which the father’s child-support payments were collected. As noted above, before taking the father’s appeal under submission, we treated his petition seeking a writ of mandamus as a motion seeking a stay of the income-withholding order by which his child-support payments were collected, and we issued a stay of that income-withholding order.

On appeal, the father first argues that the trial court erred in ordering him to pay postminority support because, he says, the payment of postminority support would cause him undue hardship.

“In Penney v. Penney, 785 So.2d 376, 379 (Ala.Civ.App.2000), this court stated:

“ ‘The trial court must also determine if the noncustodial parent has “sufficient estate, earning capacity, or income to provide financial assistance without undue hardship.” Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990). Undue hardship does not imply the absence of personal sacrifice, because many parents sacrifice to send their children to college. Id.’

Walker v. Walker, 917 So.2d 144, 147 (Ala.Civ.App.2005).

“Because the trial court received evidence ore tenus, we must presume its judgment is ‘correct unless it is so unsupported by the evidence that it is plainly and palpably wrong.’ ” Id. (quoting Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990)). The father testified that he is employed by Honda Manufacturing of Alabama as an assembly line worker and that he makes $22 per hour. He testified that his net income, after payment of taxes, is $2,964 per month and that he must support his common-law wife and their two children. According to the father, his monthly expenses exceed his net monthly income by $1,910.11. By finding that the father had the financial ability to pay $425 per month in postminority support, the trial court implicitly found that the father’s testimony that his monthly expenses exceeded his net monthly income was not credible. “In ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of the witnesses, and it should accept only that testimony which it considers worthy of belief.” Clemons v. Clemons, 627 So.2d 431, 434 (Ala.Civ.App.1993). This court cannot substitute its judgment regarding the credibility of the witnesses when the trial court receives their testimony in an ore tenus proceeding. See Ex parte Drummond, 785 So.2d 358, 363 (Ala.2000) (“[T]he trial judge, who heard oral testimony from the parties and from other witnesses, was best able to determine the credibility to be afforded that testimony. Appellate courts can only review the record. Consequently, the trial court must be left with some discretion to determine which witnesses it deems more credible than others. Once the trial court makes that determination, it is not for the reviewing court to substitute its judgment for that of the trial court.” (emphasis added) ). Therefore, we cannot hold that the trial court erred in finding that the award of $425 in postminority support would not cause the father undue hardship.

However, the father’s list of monthly expenses does not include tuition, which is an expense that qualifies for postminority support. See Walker v. Walker, 917 So.2d at 148. The evidence established that the mother must pay $300 per semester for Britney’s tuition. Because a semester is four months long, $75 per month ($300 divided by 4 equals $75) for tuition must be added to the father’s list of expenses. Thus, the father’s list of permissible expenses and Britney’s tuition total $707.50 per month.

The father also argues that, even if the trial court did not err in ordering him to pay postminority support, it erred in ordering him to pay $425 per month in post-minority support because, he says, the evidence did not support such a large amount of postminority support. Specifically, he argues: (1) that the evidence established only $632.50 per month in expenses that qualified for postminority support; (2) that the $632.50 per month of qualified expenses should be reduced by $400 per month because Britney testified that she hoped to earn that amount while she was attending college; and (3) that he should be required to pay only $150 of the remaining balance of $232.50.

In connection with his argument that the evidence established only $632.50 in expenses that qualify for postminority support, the father lists the following monthly expenses as the ones that qualify for post-minority support:

books rent cable television credit card water electric cell phone Internet Total — $112.50 — $260.00 — $ 60.00 — $ 25.00 — $ 35.00 — $ 60.00 — $ 60.00 — $ 20.00 $632.50

We next consider the father’s argument that the amount of the expenses that qualify for postminority support must be reduced by the $400 per month in net income Britney hoped to earn in the future. In Ex parte Bayliss, 550 So.2d 986 (Ala.1989), the supreme court held that a trial court, in deciding whether to award postminority support, “shall consider all relevant factors that shall appear reasonable and necessary, including primarily the financial resources of the parents and the child.... ” 550 So.2d at 987. However, that holding is not tantamount to a holding that a trial court, in computing the amount of postminority support to award, must reduce the total amount of expenses that qualify for postminority support by the amount of the income the child hopes to earn in the future. Consequently, there is no merit to the father’s argument that the trial court erred because, in computing the amount of his postminority-support obligation, it did not reduce the amount of the expenses that qualified for postminority support by the $400 per month in net income Britney hoped to earn.

The father’s argument that he should have been required to pay only $150 per month in postminority support is premised upon his arguments that only $632.50 in expenses qualified for postminority support and that that amount should have been reduced by the $400 per month in net income Britney hoped to earn. Because the arguments on which it is premised have no merit, the father’s argument that he should have been required to pay only $150 per month in postminority support likewise has no merit.

The evidence established that the father’s net income was $2,964 per month. The evidence established that the mother’s gross income was $1,600 per month. The evidence established that Britney had no income of her own at the time of trial, although she hoped to obtain a job in the future. Given the evidence regarding the cost of Britney’s tuition and other necessaries and the evidence regarding the parents’ and Britney’s financial resources, we cannot hold that the trial court erred in awarding the mother $425 per month in postminority support.

The father also argues that the trial court erred in ordering the collection of his postminority-support payments through an income-withholding order because, he says, such an income-withholding order violates this court’s holding in W.L.S. v. K.S.S.V., 810 So.2d 777 (Ala.Civ.App.2001), that § 80-3-60, Ala.Code 1975, authorizes an income-withholding order only while the child is a minor. In W.L.S. v. K.S.S.V., the child had reached the age of majority before the mother, who was the custodial parent, sought to recover a child-support arrearage from the father. After the trial court assessed an arrearage and issued an income-withholding order in order to collect the arrearage, the father appealed to this court. We stated:

“The father argues that § 30-3-60(8), Ala.Code 1975, allows an income-withholding order to be used only to order support for a minor child, and that because the parties’ daughter was no longer a minor when the mother initiated her action to collect the child-support arrearage, the trial court erred in issuing an income-withholding order. We agree.
“Section 30-3-60, Ala.Code 1975, contains definitions that pertain to withholding orders for child support. See § 30-3-60, Ala.Code 1975. Section 30-3-60(8) defines ‘Support or Support Order’ as ‘[sjupport of a minor child and spousal support when such spousal support is collected by the Department of Human Resources.... ’
“In construing a statute, this court looks to the plain meaning of the words used by the Legislature. Our supreme court has said:
“ ‘ “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’
“Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998)(quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)).
“ ‘It is true that when looking at a statute we might sometimes think that the ramifications of the words are inefficient or unusual. However, it is our job to say what the law is, not to say what it should be. Therefore, only if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers.’
“DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 276 (Ala.1998). Although we have found no cases that discuss whether an income-withholding order can be used to collect child-support arrearage after the child for whom the support was intended has reached the age of majority, our supreme court has held that the term ‘child-support obligation’ does not encompass a child-support arrearage. Ex parte State ex rel. Daw, ... 786 So.2d 1134 [ (Ala.2000) ]....
“Considering that the mother filed her petition to collect the child-support ar-rearage after the parties’ daughter had reached the age of majority and in light of the plain language in § 30-3-60(8), which provides that an income-withholding order may be used for support of a minor child, we conclude that the trial court erred when it ordered that the child-support arrearage be paid through income withholding. See Ex parte State ex rel. Daw, supra (holding that one to whom a child-support arrearage is owed becomes a judgment creditor who may then pursue the typical means of collection that are available to the holder of any judgment).”

810 So.2d at 779-80 (footnote omitted).

Based on the holding in W.L.S. v. ES.S.V. that § 30-3-60 authorizes income-withholding orders only for the collection of child support while the child is a minor, the trial court in the case now before us erred in ordering the collection of postmi-nority support through an income-withholding order.

Finally, the father argues that the trial court erred in failing to terminate, upon Britney’s reaching the age of majority, the father’s child-support payments and the income-withholding order by which those payments were collected. Subject to two exceptions, a noncustodial parent has no duty to support a child after the child reaches the age of majority. See Ex parte Bayliss, 550 So.2d at 991-92. The two exceptions are: (1) that a noncustodial parent has a duty to continue supporting a mentally or physically disabled child who continues to be disabled after reaching the age of majority; and (2) that a noncustodial parent has a duty to provide postminority educational support ordered by a court pursuant to a petition seeking such support that is filed before the child reaches the age of majority. See Bayliss. Britney is not disabled; therefore, the first exception did not justify the trial court’s failure to terminate the father’s child-support payments upon Britney’s reaching the age of majority. The trial court made a separate award of postminority support; therefore, the second exception did not justify the trial court’s failure to terminate the father’s child-support payments upon Britney’s reaching the age of majority. Thus, the trial court erred in failing to terminate the father’s child-support payments upon Britney’s reaching the age of majority. Moreover, because the father’s duty to pay child support terminated upon Britney’s reaching the age of majority, the trial court also erred in failing to terminate, upon Britney’s reaching the age of majority, the income-withholding order by which the father’s child-support payments were collected.

In case no. 2040960, we reverse the trial court’s judgment insofar as it: (1) ordered the collection of the father’s postminority-support payments through an income-withholding order; (2) failed to terminate the father’s child-support payments upon Britney’s reaching the age of majority; and (3) failed to terminate, upon Britney’s reaching the age of majority, the income-withholding order by which the father’s child-support payments were collected. In all other respects, we affirm the judgment. Finally, we remand the case to the trial court for the trial court to correct the errors in its judgment.

Our reversal, in case no. 2040960, of the trial court’s judgment insofar as it failed to terminate the income-withholding order by which the father’s child-support payments were collected renders the father’s request for relief in case no. 2040965 moot. Accordingly, we dismiss that case as moot.

The father’s request for an attorney’s fee and costs is denied.

2040960 — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

2040965 — DISMISSED.

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

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

MURDOCK, J., concurs in the result, with writing.

MURDOCK, Judge,

concurring in the result.

I read § 30-3-60(8), Ala.Code 1975, as explaining that the term “support” means payments applicable to the costs and expenses associated with the maintenance and rearing of a child during their minority and a “support order” as an order providing for such support. The fact that such support is not collected until after the child reaches the age of majority does not in my reading of § 30-3-60(8) take the support or the support order out from under the ambit of § 30-3-60(8). The purpose of support payments made after a child reaches the age of majority may still relate to the costs and expenses of maintaining and raising that child during his or her minority. The fact that the custodial parent was forced to “advance” such expenses during the minority of the child and then seek reimbursement for them after the child reaches the age of majority does not make such resulting payments from the noncustodial parent any less applicable in the eyes of the law to the maintenance and rearing of the child when he or she was a minor. For this reason, I dissented in W.L.S. v. K.S.S.V., 810 So.2d 777 (Ala.Civ.App.2001), and I adopt herein the further analysis of this issue set forth in that dissenting opinion. See W.L.S., 810 So.2d at 781-84 (Murdock, J., concurring in the result in part and dissenting in part).

My difference with the main opinion in W.L.S., however, does not bear on the appropriate result in the present case. Indeed, the present case merely serves to highlight the distinction I attempted to draw in my dissenting opinion in W.L.S. Specifically, unlike W.L.S., the present case involves support payments applicable to the college expenses of a non-minor child; W.L.S. involved support payments, even though collected after the child became an adult, applicable to the rearing of that child when he or she was a minor. I therefore find the holding of W.L.S., as well as the issue of disagreement between myself and the remainder of the court in that case, to be inapposite here.

I concur in the result in the present case because the support payments at issue are applicable to costs and expenses related to the education of a non-minor and therefore do not constitute “support” within the meaning of that term intended by the Legislature in § 30-3-60(8).


author: CRAWLEY, Presiding Judge.

text:
    HICA EDUCATION LOAN CORPORATION, by and through its agent, SALLIE MAE, INC. v. Mark L. FIELDING.
    2050504.
    Court of Civil Appeals of Alabama.
    Sept. 8, 2006.

      J. Paul Clinton of Stokes & Clinton, PC, Mobile, appellant.
    Submitted on appellant’s brief only.
   CRAWLEY, Presiding Judge.

Mark L. Fielding defaulted on his student loans, which were serviced by HICA Education Loan Corporation, by and through its agent, Sallie Mae, Inc. (“HICA”). HICA sued Fielding in Florida; however, upon learning that Fielding no longer resided in Florida, HICA voluntarily dismissed the Florida action. HICA then sued Fielding in the Talladega Circuit Court, instituting the action on September 19, 2005. Fielding was served and he sent the court a letter to which he attached a document that appears to be a copy of an order purporting to dismiss the Florida action without prejudice. Fielding did not serve this filing on HICA; however, HICA learned of the filing, which the case-action-summary sheet lists as “Answer viz: order of dismissal from Flagler Co., Florida,” and obtained a copy. Athough the case-action-summary sheet does not so reflect, the case was set for a “routine docket call” on January 12, 2006, at which HICA failed to appear.

The trial court entered a judgment dismissing HICA’s complaint for lack of prosecution under Rule 41(b), Ala. R. Civ. P., on January 12, 2006. HICA moved to set aside the dismissal on January 23, 2006, alleging that its failure to appear was based on a calendaring error. The trial court set a hearing on HICA’s motion for February 8, 2006. HICA’s regular counsel, J. Paul Clinton of Stokes and Clinton, P.C., practices in Mobile County; he associated local counsel, Van Wilkins, to appear in court. Wilkins had not filed a notice of appearance, however, and the trial court refused to accept his appearance on HICA’s behalf at the February 8, 2006, hearing and denied HICA’s motion to set aside the dismissal. HICA appeals, arguing that the trial court exceeded its discretion in dismissing the action for lack of prosecution.

“A dismissal for want of prosecution is within the discretion and inherent power of the trial court. Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). The granting of a dismissal will be reversed only if an abuse of discretion is shown. See Smith v. Wilcox County Board of Education, 365 So.2d 659 (Ala.1978); 9 Wright & Miller, Federal Practice & Procedure § 2370 (1976) (2d ed.). Dismissal with prejudice is a harsh sanction and should be used only in extreme circumstances. Nevertheless, in every action there comes a point when the interest of the court in controlling its calendar and the risk to the defendant outweigh the interest in disposing of the litigation on the merits. See Dyotherm Corp. v. Turbo Machine Co., 392 F.2d 146 [(3d Cir.1968)], on remand, 48 F.R.D. 380, appeal dismissed, 434 F.2d 65 ([3]d Cir.19[70]).
“In Alabama, and many federal courts, the interest in disposing of the litigation on the merits is overcome and a dismissal may be granted when there is a clear record of delay, willful default or contumacious conduct by the plaintiff. Smith v. Wilcox County Board of Education, 365 So.2d at 661. See, e.g., Boazman v. Economics Laboratory, Inc., 537 F.2d 210 (5th Cir.1976); Pond v. Braniff Airways[, Inc.], 453 F.2d 347 (5th Cir.1972). Willful default or conduct is a conscious or intentional failure to act. Welsh v. Automatic Poultry Feeder Co., 439 F.2d 95 (8th Cir.1971). Willful’ is used in contradistinction to accidental or involuntary noncompliance. No wrongful motive or intent is necessary to show willful conduct.” Selby v. Money, 403 So.2d 218, 220-21 (Ala.1981); see also Burton v. Allen, 628 So.2d 814, 815 (Ala.Civ.App.1993).

As HICA argues, our review of the record failed to disclose a “clear record of delay, willful default or contumacious conduct by the plaintiff.” In fact, only four months had elapsed between the filing of this action and the dismissal. HICA’s inadvertent failure to appear at the January 12, 2006, docket call cannot be construed as willful. Likewise, its alleged failure to appear at the February 8, 2006, hearing was not willful. HICA’s counsel, Clinton, associated Wilkins, who the trial court refused to allow to appear on HICA’s behalf despite his presence in court for that very purpose.

Wilkins’s failure to file a formal notice of appearance was not a sufficient basis for the trial court’s refusal to accept his appearance on HICA’s behalf. See Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45, 52 (Ala.2003). As our supreme court has explained:

“ ‘ “An appearance in a suit by an attorney of the proper court, is presumed to be authorized. The burden of proof is upon the party denying the authority.” ’ Pallilla v. Galilee Baptist Church, 215 Ala. 667, 669, 112 So. 134, 135 (1927) (quoting Doe v. Abbott, 152 Ala. 243, 245, 44 So. 637, 637 (1907)). ‘Where the authority of an attorney to appear for a party to a cause or proceeding is a subject of inquiry, the appearance of the attorney is presumptive evidence of the authority of the attorney to represent the party; and, in the absence of evidence to the contrary, such appearance is sufficient to justify the conclusion that the attorney was authorized by the par- ' ty to appear and represent him in the cause or proceeding.’ Kemp v. Donovan, 208 Ala. 289, 290, 94 So. 168, 169 (1922) (citations omitted). Accord, 7 Am. Jur.2d Attorneys at Law § 160 (1997) and 7A C.J.S. Attorney & Client § 171 (1980); [b]ut cf. Singleton v. Allen, 431 So.2d 547, 549 (Ala.Civ.App.1983).”

Ayers, 886 So.2d at 52. See also Big Red Elephant v. Bryant, 477 So.2d 342, 344 (Ala.1985) (holding that an attorney who purported to represent a party and against whom no allegation that he did not represent that party was made had authority to file a suggestion of death on behalf of that party despite the fact that he had not filed a notice of appearance). Nothing in the record indicates that Fielding challenged Wilkins’s authority to appear on behalf on HICA. Thus, Wilkins was presumed to have had that authority.

Because the record fails to justify the trial court’s dismissal of HICA’s action against Fielding, and its subsequent refusal to set aside that dismissal, on the ground that Wilkins had not filed a formal notice of appearance, we reverse the trial court’s judgment of dismissal and remand this cause for further proceedings in HICA’s action against Fielding.

REVERSED AND REMANDED.

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

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


author:
CRAWLEY, Presiding Judge.
      BRYAN, Judge,

text:
    PRESLEY ROOFING & CONSTRUCTION COMPANY, INC. v. Darlene P. LEWIS, in her official capacity as clerk of the City of Prichard.
    2050330.
    Court of Civil Appeals of Alabama.
    Sept. 8, 2006.

      C. Mark Erwin of Satterwhite & Erwin, L.L.C., Mobile, for appellant.
    Willie J. Huntley, Jr., and Matthew Paul Simpson, Mobile, for appellee.
   CRAWLEY, Presiding Judge.

Presley Roofing & Construction Company, Inc. (“Presley Roofing”), appealed to the Alabama Supreme Court from the circuit court’s denial of its petition for a writ of mandamus directed to the clerk of the City of Prichard (“the City”) seeking to have the clerk reissue a business license that the City had previously revoked. The supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

On June 2, 2005, Larry Presley, the owner of Presley Roofing, applied to the Mining and Reclamation Division of the State Department of Industrial Relations (“DIR”) for a permit to conduct surface mining for dirt on property he owned in the police jurisdiction of the City. DIR subsequently notified Presley that his application was incomplete and that he would have to submit, among other things, proof that he had obtained a business license from the City.

On June 23, 2005, Presley applied to the City for a business license to operate a dirt pit on property located within the police jurisdiction but outside the corporate limits of the City. Presley testified that, upon instructions from a clerk in the City’s business-license office, he filled out an application form and presented it to the clerk.

At the top of the form, entitled “Application for City Business License,” there are spaces for entering the business name, the business address, and the type of license requested, as well as the business owner’s name, address, telephone number, Social Security number, and driver’s license number. At the bottom of the application form, the following notation appears in all capital letters: “NOTE: CERTIFICATIONS ONE AND TWO (BELOW) MUST BE SIGNED BEFORE THIS LICENSE WILL BE ISSUED.” The first “certification” consists of the applicant’s statement that the information provided in the application is true and correct, followed by a space for acknowledgment by a notary public. The second “certification,” which appears on the reverse side of the application form, consists of spaces indicating approval (or disapproval) of the application by two entities: the Fire Marshall and the Inspection Department. Finally, the form contains a section indicating that the application has been referred to one of three entities: the Board of Adjustment and Appeals; the Zoning Commission; or the Planning Commission.

Gene W. Cain, a business-license clerk for the City, testified that he received Presley Roofing’s business-license application on June 23, 2005, that he wrote “P.J.,” indicating “police jurisdiction,” on the application form, and that he issued the license upon Presley’s payment of the fee. Cain testified that he did not require Presley to complete the certifications at the bottom or on the reverse side of the application form. Cain explained that many business-license applications arrived by mail, in which case, he said, the applicant’s signature was required to be notarized, but, he stated, he had been trained not to require a notarized signature if the applicant appeared in person to complete the application form. Cain further explained that, because the property was located outside the city limits, he did not think the “certifications” on the reverse side of the application form applied. Cain conceded that, although he had processed applications for the renewal of licenses to operate dirt pits, he had never handled an initial application to license a dirt pit before Presley Roofing presented its application in this case.

After Presley Roofing received a business license from the City, Presley resubmitted his application to DIR for a surface-mining permit, this time enclosing a copy of the business license. On July 11, 2005, DIR issued the permit. On July 12, 2005, the City wrote Presley a letter stating that it had issued the business license in error and that it was revoking the license. When Presley inquired why the license was being revoked, he was not told that there were any deficiencies in the application. Instead, he was informed that “the Mayor ... didn’t want any more dirt pits in the police or fire jurisdiction.”

Sammy Green, the Code enforcement officer for the City, testified that in late June 2005 he met with the residents of two different subdivisions who had heard that “someone was trying to start a dirt pit operation” in the area and who had begun a petition drive opposing the operation. Green sent copies of the petitions to DIR, and then he talked to City Clerk Darlene Lewis, Cain, and the mayor. He informed those City officials that Presley’s license “did not go through the proper procedure.” At trial, Green testified that the proper procedure was as follows:

“Once [Presley Roofing] makes application, then it goes to the Inspection Department, and the Inspection Department determines what other steps need to be taken. At that time, [because the property was located] in the police jurisdiction, [the application] needed to go before the Planning Commission.
“See, a dirt pit is considered a special exception where you would have to have approval from the people that stay in the area.... And if there was no opposition at the time of the hearing, then that license would be ... granted. In this case, that never happened. The application was just filled out, and the license was issued; so it never did complete any of the steps that are set in place for dirt pits or landfills or junk yards. All those are considered special exceptions.... ”

Green acknowledged that the City’s zoning ordinances did not apply outside the city limits, but, he said, the City’s planning jurisdiction extended beyond its zoning jurisdiction. He said that the Planning Commission heard issues of land use within the City’s police jurisdiction. When asked whether the procedure he outlined was contained in any ordinance or written policy of the City, Green stated that he did not know.

I.

Citing Pritchett v. Nathan Rodgers Construction & Realty Corp., 379 So.2d 545 (Ala.1979), Presley Roofing argues that the City’s action revoking its business license was arbitrary and capricious because, it argues, the City took that action without reference to the authority of a state statute, a local ordinance, or any formal act by the City requiring that all business-license applications be approved by the Inspection Department and, further requiring that, if the business is a dirt pit, that the application also be approved by the Planning Commission.

Pritchett, upon which Presley Roofing relies for its arbitrary-and-capricious argument, is inapt. In Pritchett, the owner of an apartment complex applied for permission from the City of Saraland to connect the complex to the city’s sewer system. Despite the fact that the owner was led to believe by various city officials that his request would be granted, the city council initially failed to act on the request. Then, at a meeting of the city council on October 3, 1977, the council voted that no apartments would be allowed to tie into the system without a feasibility study. At that same meeting, however, another apartment owner requested that he be allowed to connect to the sewer system and, without conducting a feasibility study, the city council approved the request. The Alabama Supreme Court determined that because the city had acted “without the aid of reasonable regulations ... and without any statement of the reasons for denying” one request and granting another, its actions were arbitrary. Pritchett, 379 So.2d at 547. In the present case, the City gave reasons for its revocation of the license and there was no other applicant who, although similarly situated, was treated differently from Presley Roofing.

We acknowledge that, at trial, the City never referred to, quoted from, or introduced into evidence any City ordinance, and, likewise on appeal, the City has not cited any ordinance relating to the proper procedure for obtaining a license to operate a business within the police jurisdiction of the City. The argument by Presley Roofing, however, overlooks the fact that the City did not have the burden of showing that Presley Roofing had no legal right to the license. Instead, as the petitioner for a writ of mandamus, Presley Roofing had the burden of showing that it did have a clear legal right to the relief it sought.

“ ‘The writ of mandamus is a drastic and extraordinary writ, to be “issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993); see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala.1995).’ Ex parte Carter, ... 807 So.2d 534 at 536 [ (Ala.2001) ].”

Ex parte McWilliams, 812 So.2d 318, 321 (Ala.2001).

The record suggests that the City had a procedure for obtaining a license to operate a business within the City’s police jurisdiction. The “Application for City Business License,” and the testimony of Green indicate that the procedure was outlined on the application form and that the procedure was not followed in this case. The City’s failure to cite an ordinance as the underpinning for its procedure (and as the basis for its revocation of the license) did not relieve Presley Roofing of its burden to show that it had a clear legal right to the license.

II.

Presley Roofing argues that the evidence indicates that the proper procedure for obtaining a business license was followed in this case. Presley Roofing points to the testimony of Cain, asserting that because Cain believed it was unnecessary to route the license application to the Inspection Department or to the Planning Commission for approval, those steps were not required. Presley Roofing also points to evidence indicating that, before it filed its mandamus petition in the circuit court, no City official had raised a question with regard to the alleged deficiencies in the license application that, the City argued at trial, served as the basis for revoking the license.

Those assertions are essentially equitable-estoppel arguments. However, “ ‘ “[t]he doctrine of equitable estoppel is not a bar to the correction ... of a mistake of law.” ’ ” State Highway Dep’t v. Headrick Outdoor Advertising, Inc., 594 So.2d 1202, 1205 (Ala.l992)(quoting First Nat’l Bank of Montgomery v. United States, 176 F.Supp. 768, 772 (M.D.Ala.1959), affd, 285 F.2d 123 (5th Cir.1961), quoting in turn Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 182, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957))(emphasis omitted). “Neither the State nor its political subdivisions ... [can] be estopped by doing that which they have no authority to do.” Ex parte Fields, 432 So.2d 1290, 1293 (Ala.1983).

Presley Roofing failed to establish that it was entitled to the license as a matter of law. Therefore, the circuit court correctly denied the petition for the writ of mandamus.

The judgment of the Mobile Circuit Court is affirmed.

AFFIRMED.

THOMPSON and PITTMAN, JJ., concur.

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

BRYAN, J., concurs in the result, with writing.

BRYAN, Judge,

concurring in the result.

Because this action was before the circuit court on a petition for a writ of mandamus and the petitioner failed to demonstrate a “clear legal right” to the relief it seeks, I concur in the result.

      . DIR subsequently withdrew the permit it had issued to Presley Roofing.

      . In the absence of statutory authority, a circuit court cannot take judicial notice of a municipal ordinance. General Motors Acceptance Corp. v. City of Red Bay, 825 So.2d 746, 749-50 (Ala.2002). Section 11-45-11, Ala. Code 1975, provides that "[a]ll courts of the state of Alabama shall take judicial notice of all municipal ordinances of each Class 1 municipality.” Class 1 municipalities are those with a population of 300,000 inhabitants or more. § 11-40-12, Ala.Code 1975. We take judicial notice of the fact that the population of the City is less than 300,000.


author: PITTMAN, Judge. MURDOCK, Judge,

text:
    Leonardo HUGHES v. Deneen S. HUGHES.
    2040936.
    Court of Civil Appeals of Alabama.
    Sept. 8, 2006.
    Michael G. Trucks of Trucks & Trucks, Fairfield, for appellant.
    Denise S. Pomeroy and Thomas B. Hanes of Dominick, Fletcher, Yeilding, Wood & Lloyd, P.A., Birmingham, for ap-pellee.
   PITTMAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(C), Ala.R.App. P.; Ex parte Farm, 810 So.2d 631, 633 (Ala.2001); Ex parte Paironas, 693 So.2d 473, 475 (Ala.1997); Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996); Ex parte McLendon, 455 So.2d 863 (Ala.1984); C.B.B. v. J.S.D., 831 So.2d 620, 621-22 (Ala.Civ.App.2002); and Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App.1995).

The appellee’s request for an award of attorney fees on appeal is granted in the amount of $2,500.

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

MURDOCK, J., concurs specially.

MURDOCK, Judge,

concurring specially.

I concur to affirm the trial court’s judgment. I disagree, however, with this court’s award of attorney fees to the wife on appeal.


author: COBB, Judge.

text:
    Tauarus M. TOLBERT v. STATE.
    CR-03-1757.
    Court of Criminal Appeals of Alabama.
    Aug. 26, 2005.

      W. Gregory Hughes, Mobile, for appellant.
    Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   COBB, Judge.

Tauarus M. Tolbert appeals from the circuit court’s denial of his Rule 32, Ala. R.Crim. P., petition. Tolbert, who was 19 years old at the time of the offense, was one of three codefendants convicted of robbing a Shell gasoline service station in Bay Minnette. The petition sought post-conviction relief from Tolbert’s conviction for robbery in the first degree and his sentence as a habitual felon to life in prison. Tolbert was tried on March 1, 2000. This trial ended in a mistrial based on the prosecution’s withholding exculpatory material that came to its attention during discovery. Tolbert was retried and convicted on May 1, 2000, and was sentenced on June 22, 2000. No direct appeal was taken. This petition was timely filed on June 24, 2002. In his petition, Tolbert presents numerous claims of ineffective assistance of trial counsel.

To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that his counsel’s performance was deficient, which requires a showing that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment of the United States Constitution; and (2) that he was prejudiced by counsel’s deficient performance, which requires a showing that the outcome of the trial would probably have been different, but for counsel’s performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

“ ‘Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.’ Boyd v. State, 746 So.2d 364, 406 (Ala.Crim.App.1999). In other words, it is not the pleading of a conclusion ‘which, if true, entitle[s] the petitioner to relief.’ Lancaster v. State, 638 So.2d 1370, 1373 (Ala.Crim.App.1993). It is the allegation of facts in pleading which, if true, entitle a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala. R.Crim. P., to present evidence proving those alleged facts.”

Boyd v. State, 913 So.2d 1113, 1125 (Ala.Crim.App.2003). The claims in Tolbert’s petition are nothing but bare allegations failing to plead sufficient facts supporting either prong of the Strickland test to suggest that Tolbert is entitled to any relief on his ineffective-assistance-of-counsel claims. See Rules 32.3 and 32.6(b), Ala. R.Crim. P. Nevertheless, despite his deficiency in pleading, Tolbert was granted a hearing on his claims at which he was afforded the opportunity to prove his various ineffective-assistance-of-counsel claims. Moreover, at the hearing for the first time, without objection, Tolbert asserted that the failure to appeal was through no fault of his own and requested an out-of-time appeal. The circuit court denied Tolbert’s petition by the following written order:

“Rule 32 hearing held on 5-18-04. Testimony taken from [defendant], Tauarus Tolbert and [attorney] Earnie White. After reviewing the testimony of the Rule 32 hearing, reviewing the petition and case file and the March 1, 2000, mistrial and the May 1, 2000, trial and the June 22, 2000, sentencing hearing, it is the finding of this Court, that [Tolbert’s] allegations of ineffective assistance of counsel are without merit. [Attorney] White’s performance was not deficient and [Tolbert] was not prejudiced to the extent that a different outcome of the trial would have resulted but for the ineffective assistance of counsel. Some of [Attorney] White’s actions or inactions are perceived by the Court to be trial strategy and appear to be proper and effective. Petition is denied.”

(Vol.l, p. 2.)

Essentially, Tolbert claims on appeal, as at his hearing, that trial counsel, Earnest White, was ineffective because he failed to investigate the case, failed to develop a sound trial strategy, failed to adequately question witnesses on direct and cross-examination, failed to make a Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), challenge, failed to have inculpatory evidence suppressed, failed to challenge the victim’s identification of Tolbert, failed to reach a plea bargain with the State on his behalf, failed to present any witnesses for the defense, failed to present any witnesses at sentencing, failed to advise Tolbert whether to testify or to remain silent at sentencing, failed to appeal after being requested to do so, and, incorrectly instructed Tolbert not to testify on his own behalf at trial and allowed Tolbert to admit to having prior felony convictions.

“The standard of review on appeal in a post conviction proceeding [where the facts are disputed] is whether the trial judge abused his discretion when he denied the petition. Ex parte Heaton, 542 So.2d 931 (Ala.1989).” Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App.1992). Nevertheless, if the circuit court’s ruling is correct for any reason, it will be affirmed on appeal. Hoobler v. State, 668 So.2d 905, 908-09 (Ala.Crim.App.1995).

Here, Tolbert was not wearing a mask at the time of the robbery. He was positively, absolutely, and unequivocally identified as one of the robbers by the two female clerks who were working in the Shell station at- the time of the robbery. He was also identified by a customer who saw him in the store moments before the robbery. Also, one of Tolbert’s two code-fendants testified that Tolbert participated in the robbery. The absoluteness of these identifications was beyond a successful challenge. Moreover, when he was arrested, Tolbert was carrying a marked two-dollar bill taken from the store’s cash register during the robbery. In light of the overwhelming evidence of Tolbert’s guilt, our review of the trial transcript discloses note a defense consisting of poor strategy choices, but rather a strong prosecution leaving scant strategy choices for the defense. “This Court cannot use hindsight to second-guess trial counsel’s decision but must place itself in trial counsel’s position at the time the decision was made.” Gooch v. State, 717 So.2d 50, 54 (Ala.Crim.App.1997). With that backdrop in mind, the ineffective-assistance claims were either disputed by counsel, in which case we find no abuse of discretion in the circuit court’s resolving the factual dispute against Tolbert, or the claims were undisputed, but even taken as true they did not prejudice the outcome of the trial. Tolbert failed to establish with any particularity any deficiency in White’s representation that resulted in any prejudice. With one exception, we can find no abuse of discretion with the circuit court’s denial of Tolbert’s ineffective-assistance-of-counsel claims.

The one exception is Tolbert’s claim that White did not acquiesce to Tolbert’s request that White challenge his conviction on appeal. “ ‘Appeal to this court has been ruled to be a matter of right. Failure to file a timely appeal to this court is a classic example of ineffective assistance of counsel’ Mcmcil v. State, 682 So.2d 501, 502 (Ala.Crim.App.1996). See also Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).” Seay v. State, 881 So.2d 1065, 1067 (Ala.Crim.App.2003). Tolbert claims that at the conclusion of the trial, after sentencing, he requested his retained counsel, White, to file an appeal on his behalf. According to Tolbert, White told him at that time that there was no need to appeal and that Tolbert should write him a letter about it later. Tolbert stated that he wrote two letters to White telling him to appeal, but he received no response from White. White testified that he “talked with [Tolbert and his family] briefly” after sentencing but that he did not “recall” any instructions asking him to take “affirmative action” regarding an appeal. (Vol. 2, p. 107-08.) White testified that he did not recall receiving letters from Tolbert but if Tolbert had requested an appeal, he “most likely would have appealed the case.” (Vol. 3, p. 122.) White conceded that it was at least “possible” that this was the type of case — a 19-year-old sentenced to life in prison — “that would warrant very close scrutiny in terms of whether or not to file an appeal to the Alabama Court of Criminal Appeals.” (Vol. 3, p. 108.) White also acknowledged that where a defendant is indigent, like Tolbert, “the safest thing to do is to file the Notice of Appeal, withdraw, have the Court appoint that person an indigent lawyer, then you’ve preserved his rights to appeal.” (Vol. 3, p. 109.)

There is no indication in the record on direct appeal that counsel ever withdrew his representation of Tolbert. Moreover, White does not dispute that neither he nor the trial court informed Tolbert that he had only 42 days from sentencing to timely file notice of appeal. At the conclusion of the Rule 32 hearing the circuit court, reflecting on a recent reversal resulting from its granting an out-of-time appeal, stated that the granting an out-of-time appeal “may not be something that this Court can do” but it would “look at that case [reversing the court] again.” (Vol. 3, p. 127.)

In Esters v. State, 894 So.2d 755 (Ala.Crim.App.2003), we analyzed the circuit court’s denial of an out-of-time appeal by the following mandates of Rule 6.2, Ala. R.Crim. P.:

“ ‘(b) Duty of Continuing Representation. Counsel representing a defendant at any stage shall continue to represent that defendant in all further proceedings in the trial court, including filing of notice of appeal, unless counsel withdraws in accordance with a limited contract of employment as described in Rule 6.2(a), or for other good cause as approved by the court.
“ ‘(c) Withdrawal. Counsel may be permitted to withdraw for good cause shown; however, no attorney shall be permitted to withdraw after a case has been set for trial except upon written motion stating the attorney’s reasons for withdrawing.’

“(Emphasis added.) In the Committee Comments to Rule 6.2, we find the following:

“ ‘Section (b) contemplates that the usual procedure will be that counsel initially retained privately or appointed by the court will continue to represent the defendant through all stages of the trial proceeding, including filing notice of appeal. The rationale is that that attorney has the advantage of familiarity with the case. Continued representation also guarantees that the defendant’s right of appeal is not lost in the period between termination of trial counsel’s responsibilities in the case and retention or appointment of counsel for an appeal, if any. See ABA, Standards for Criminal Justice, Providing Defense Services 5-5.2 (2d ed.1986).
‘Counsel must move to withdraw by means of a formal written motion. Withdrawal mil be permitted only upon order of the court in response to such motion.’ ”

Esters v. State, 894 So.2d at 760 (footnote omitted)(appointed counsel failed to appeal). Moreover, Rule 24(b), Ala. R.App. P., concerning “Leave to Proceed on Appeal In Forma Pauperis in Criminal Cases” provides: “Appointed trial counsel shall continue as defendant’s counsel on appeal unless relieved by order of the trial court.”

Because whether counsel was instructed to file an appeal is disputed, because the circuit court expressed reservations about its authority to grant an out-of-time appeal, and because there are no findings of fact regarding this issue, we remand this case for the circuit court to make specific findings of fact regarding Tolbert’s failure-to-appeal claim. We repeat our instructions from Seay v. State, 881 So.2d at 1067-68:

“If the circuit court finds that counsel did, in fact, represent that he would file a notice of appeal, but did not do so, then [Tolbert] is entitled to an out-of-time appeal. See Noble v. State, 708 So.2d 217 (Ala.Crim.App.1997) (if the failure to timely file a notice of appeal is through no fault of the appellant’s, he is entitled to an out-of-time appeal); Jones v. State, 495 So.2d 722 (Ala.Crim.App.1986) (petitioner granted an out-of-time appeal after no notice of appeal was filed, despite petitioner’s specific request that his counsel file a notice of appeal).
“If, however, the circuit court finds that no such representations were made, the circuit court should apply the analysis set forth in Roe v. Flores-Ortega, [528 U.S. 470 (2000) ]. Under this standard, if counsel fails to make any representations about appealing, no per se prejudice rule applies. Nevertheless, counsel still owes a duty to consult with his client about appealing ‘when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are non-frivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.’ 528 U.S. at 480, 120 S.Ct. 1029. On remand, the court should make such findings of fact necessary to determine whether counsel owed a duty to [Tolbert] to consult with him regarding an appeal, whether such a duty was breached, and whether [Tolbert] was prejudiced by that breach. Therefore, the court should make findings regarding whether [Tolbert] showed any non-frivolous grounds for appeal, whether [Tolbert] or his [family] indicated to counsel any desire to appeal, whether other ‘substantial reasons’ are shown to believe that [Tolbert] would have appealed, and whether counsel’s conduct was so deficient that it caused [Tolbert] to forfeit an appeal that he would have otherwise filed. 528 U.S. at 485-87, 120 S.Ct. 1029.
“Although an evidentiary hearing has already been conducted, on remand the circuit court may also conduct such further proceedings or take such additional evidence as it deems necessary to make its determination and specific findings of fact.”

A return to remand shall be filed with this Court within 42 days of the date of this opinion. The return to remand shall include a transcript of the remand proceedings, if any are conducted, and the evidence submitted, as well as the circuit court’s findings of fact.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED WITH DIRECTIONS.

McMILLAN, PM., and BASCHAB, SHAW, and WISE, JJ., concur.

      . Fernando Finklea and Kendrell Finklea were also convicted in separate proceedings of the robbery of the Shell service station.

      .We note that these claims appear inconsistent. However the record clarifies that Tol-bert did not testify at trial and that Tolbert did not admit a prior felony at sentencing. The Slate offered proof at the sentencing hearing of one prior felony conviction.

      . The record on direct appeal was made part of the record in this Rule 32 proceeding by its admission as an exhibit at the hearing on Tolbert’s Rule 32 petition.

      . He was identified as the robber wielding a firearm during the robbery.

      . Tolbert’s family obtained the money to pay for his defense at trial. However, Tolbert was not able to afford counsel on appeal.