author:
PER CURIAM.
      MURDOCK, Judge,

text:
    Carl HARRIS v. Crystal MITCHELL.
    2050073.
    Court of Civil Appeals of Alabama.
    Aug. 18, 2006.
    Rehearing Denied Oct. 6, 2006.
    Certiorari Denied Dec. 8, 2006 Alabama Supreme Court 1060126.

      Joel E. Dillard of Baxley, Dillard, Dauphin, McKnight & Barclift, Birmingham, for appellant.
    Troy King, atty. gen., and Sharon E. Ficquette and Jennifer M. Bush, asst, at-tys. gen., for Department of Human Resources.
   PER CURIAM.

Crystal Mitchell was born to Annette Mitchell on January 12, 1984. Crystal’s parents were not married. On February 9, 1984, the State of Alabama, on behalf of Annette Mitchell, filed a paternity action against Carl Harris in the Marengo Juvenile Court. Crystal was not a party to the paternity action. On July 6, 1984, the Marengo Juvenile Court determined that Harris was not Crystal’s father and entered a judgment to that effect. There was no appeal from the judgment, and neither party filed a motion, pursuant to Rule 60(b), Ala. R. Civ. P., for relief from the judgment.

On December 23, 1996, when Crystal was 12 years old, Annette, as Crystal’s mother and next friend, filed in the Jefferson Family Court a complaint for paternity and child support, alleging that Harris was Crystal’s father. Harris answered and moved for a dismissal of the complaint, arguing that the action was barred by the doctrines of res judicata and collateral es-toppel, as well as laches. On June 28, 2000, the family court determined that Harris was Crystal’s father and ordered him to pay $269.70 per month in child support.

Harris appealed to the Jefferson Circuit Court, moved to have the proceedings transferred to the Marengo Circuit Court, and demanded a jury trial. Ultimately, the case was transferred to the Marengo Circuit Court, where a jury determined, on June 28, 2005, that Harris was Crystal’s father. The trial court ordered Harris to pay Crystal’s mother $88,541.61 in accrued child support.

Harris appeals, raising three issues: (1) that the trial court erred by determining that the doctrines of res judicata and collateral estoppel did not bar the 1996 paternity complaint against Harris; (2) that the trial court erred by concluding that Crystal was not required, in order to attack the 1984 paternity judgment, to file a motion pursuant to Rule 60(b), Ala. R. Civ. P.; and (3) that the trial court erred by awarding $33,541.61 in past-due child support to Annette, who was not a party to the 1996 paternity proceeding.

The Applicability of the Doctrines of Res Judicata and Collateral Estoppel

The trial court correctly determined that the 1996 paternity action against Harris was not barred by the doctrine of res judicata. When a mother has previously filed a paternity action against the alleged father, and the child is neither a party to nor represented in that action, as in this case, the doctrine of res judicata does not bar the child from subsequently asserting a claim against the same man under the Alabama Uniform Parentage Act, § 26-17-1 et seq., Ala.Code 1975 (“the AUPA”), because the mother and the child are not the same parties and are not in privity. See Ex parte Snow, 508 So.2d 266 (Ala.1987); T.K.S. v. State ex rel. M.S.B., 673 So.2d 429 (Ala.Civ.App.1995); and State ex rel. T.G. v. B.L.J., 627 So.2d 449 (Ala.Civ.App.1993). The reverse is also true; i.e., the fact that there was a judgment in favor of the alleged father in a paternity action brought by a child does not bar a subsequent paternity action brought by the mother against the same man under the doctrine of res judicata. See E.J.B. v. State ex rel. A.C., 669 So.2d 992 (Ala.Civ.App.1995).

Harris argues that because the interests of Crystal, Annette, and the State were all effectively represented by the district attorney in the 1984 paternity case, Crystal should be bound by the judgment in the earlier case. We reject that argument because the district attorney who prosecuted the 1984 paternity action could not have “represented” Crystal. On February 9, 1984, when the first paternity action was instituted, the provisions of §§ 26-12-1 through -9 (repealed on May 7, 1984), which was known as the deGraf-fenried Act, did not authorize a child to be made a party to a paternity proceeding. See Ex parte Snow, 508 So.2d at 267.

Harris also argues that the Alabama Supreme Court recently relaxed the requirement of “mutuality of estoppel” in Ex parte Flexible Products Co., 915 So.2d 34 (Ala.2005), and held that a party in a second action was bound by the judgment in an earlier action, notwithstanding the fact that he was not a party to the first action, because the party was “in privity of blood, estate, or law” with a party to the first action. Harris claims that Crystal is in privity of “blood, estate, and law” with her mother Annette.

Aside from the other distinctions between this case and Ex parte Flexible Products Co., supra (including the fact that this case involves the defensive use of issue preclusion and Ex parte Flexible Products Co. involved the offensive use of issue preclusion), the most obvious distinction between the cases is that Ex parte Flexible Products Co. was not a paternity case. The discussion of privity by the Alabama Supreme Court in Ex parte Flexible Products Co. is academic in light of that court’s discussion of privity in Ex parte Snow, specifically as it relates to claims asserted by a mother and a child as to the child’s paternity:

“For the parties to be substantially the same in both cases, they ‘must be either the same, or in privity of estate, blood, or law with the original parties.’ Lott v. Toomey, 477 So.2d 316, 319 (Ala.1985). [The child] was not a party to the paternity action brought by [the mother], nor was she represented by a guardian ad litem in that proceeding. Thus, unless [the child] and [the mother] are in privity, res judicata will not apply. As stated by this Court in Tatum v. Kelley, 481 So.2d [1132,] 1136 [(Ala.1985) ],
“‘[f]or privity to exist between two people, there must be an identity of interests between them. Butler v. Michigan Mutual Ins. Co., 402 So.2d 949, 953 (Ala.1981). “Privity” has been defined as “a mutual or successive relationship to the same rights of property.” Sims v. City of Birmingham, 254 Ala. 598, 607, 49 So.2d 302, 310 (1950).’
“ ‘ “[P]rivity, for purposes of judicial finality, does not normally arise ... from the relationship between parent and child.” ’ Brown v. Terry, 375 So.2d 457, 458-59 (Ala.1979) (quoting IB J. Moore, Moore’s Federal Practice ¶ 0.414[11] (2d ed.1974), ¶ 0.411[11] in 1984 edition)
“The interests of [the child] in establishing the existence of the father and child relationship are different from the interests of [the mother] in bringing the prior paternity action. If [the mother’s] action had been successful, she possibly could have received a judgment for support benefits on behalf of the child and a judgment for the reasonable expenses of her pregnancy and confinement. Code 1975, § 26-12-4 (repealed May 7, 1984). [The child], on the other hand, has personal interests in an adjudication of paternity that are independent of the interests of her mother. In addition to an inherent right to continuing support from her father, see Northcutt v. Cleveland, 464 So.2d 112 (Ala.Civ.App.1985), [the child’s] right to inherit from her natural father through intestate succession will be established by a judicial determination of paternity. Abrams v. Wheeler, 468 So.2d 126 (Ala.1985). A paternity proceeding may also directly affect [the child] in other important matters, including her custody, the knowledge of her heritage, and the determination of an accurate family medical history. Settle v. Beasley, 309 N.C. 616, 308 S.E.2d 288 (1983). Because there is not an identity of interests between [the child] and [the mother], they are not in privity, and res judicata will not apply to bar [the child’s] claim.”

Ex parte Snow, 508 So.2d at 268.

Rule 60(b) Motion

The trial court correctly determined that Crystal was not required to file a Rule 60(b) motion in order to attack the 1984 paternity judgment. “The purpose of Rule 60(b) is to ‘relieve a party or a party’s legal representative from a final judgment....’” Rowe v. Dunn, 949 So.2d 146, 149 (Ala.Civ.App.2006) (quoting Rule 60(b)) (emphasis added). Because Crystal was not a party to and was not bound by the 1984 paternity judgment, she had no reason to seek relief from that judgment.

The Child-Support Award

The trial court awarded $33,541.61 in past-due child support to Crystal’s mother, Annette. Harris argues that the court erred by awarding the past-due sum to Crystal’s mother, who was bound by the 1984 paternity determination in his favor but who was not a party to the 1996 paternity proceeding.

A final judgment in a paternity case must include an order of child support. See § 26-17-14(a), Ala.Code 1975; and Washington v. State ex rel. King, 537 So.2d 967 (Ala.Civ.App.1988). Section 2617-14(e) provides, in pertinent part, that “[s]upport orders may be in a lump sum amount if awarded against the appropriate party as a judgment representing an accrued arrearage.... ” The statute does not specify or limit the parties to whom lump-sum payments for the past care and support of the child should be made.

We conclude that Harris does not have standing to object to the trial court’s designation of the person to whom payment should be made. A party lacks standing to invoke the power of the court in his behalf in the absence of “a concrete stake in the outcome of the court’s decision.” Brown Mech. Contractors, Inc. v. Centennial Ins. Co., 431 So.2d 932, 937 (Ala.1983) (quoted in Ex parte Izundu, 568 So.2d 771, 772-73 (Ala.1990)). Any error regarding the recipient of the child-support award is a matter for correction between Crystal and her mother Annette. Cf. Topline Retreads of Decatur, Inc. v. Moore, 484 So.2d 1090, 1091 (Ala.Civ.App.1985)(concluding that an employer who was ordered to pay a workers’ compensation award to an injured employee had no standing to object to the attorney fee awarded to the employee’s attorney because, the court held, the employee “ ‘must bear the whole fee out of compensation awarded,’ [and] any error regarding the attorney’s fee award is a matter for correction between the employee and his attorney. ‘It is no basis for complaint on appeal by the employers.’ ” (quoting Rush v. Heflin, 411 So.2d 1295, 1297 (Ala.Civ.App.1982))).

“ ‘Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation.’ National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994). ‘ “[L]ack of standing [is] a jurisdictional defect.” ’ State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999) (quoting Tyler House Apartments, Ltd. v. United States, 38 Fed.Cl. 1, 7 (Fed.Cl.1997)). ‘[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987).”

Ex parte Fort James Operating Co., 871 So.2d 51, 54 (Ala.2003).

The judgment of the Marengo Circuit Court is affirmed.

AFFIRMED.

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

MURDOCK, J., concurs specially, with writing, which BRYAN, J., joins.

MURDOCK, Judge,

concurring specially.

But for the decision in Ex parte Snow, 508 So.2d 266 (Ala.1987), it would seem that the doctrine of res judicata, or the doctrine of collateral estoppel, should apply to the present case. Carl Harris undoubtedly relied upon the initial paternity judgment, as would any alleged father who prevails in a paternity action, and proceeded with his life and structured his financial affairs accordingly. Moreover, it was indeed the child’s rights or interest that the mother and the State were pursuing when the initial paternity action was filed. See, e.g., Bradley v. Division of Child Support Enforcement ex rel. Patterson, 582 A.2d 478, 481 (Del.1990) (“The private interests of the father, the mother, and the child are at stake in any paternity litigation, even one initiated by the State.... The issue to be resolved in any paternity proceeding is whether the putative father is, in fact, the child’s parent.... Consequently, a mother and/or a public authority are representing the child’s interests with respect to paternity and support, whether or not the child is actually made a party.”). In fact, but for a child’s alleged rights or interests in establishing who his or her father is, neither the mother nor the State would have any interest in a paternity action. It is the child’s rights or interests that are litigated in a paternity action. This would appear to be no less true merely because, as in both Snow and in the present case, the prior paternity action was filed at a time when the paternity statute did not authorize the child to file an action on his or her own behalf. See E.I.B. v. J.R.B., 259 N.J.Super. 99, 611 A.2d 662 (App.Div.1992); and Slocum ex rel. Nathan A. v. Joseph, 183 A.D.2d 102, 588 N.Y.S.2d 930 (1992).

I note that there is a split of authority as to whether the interest of a child and those of the mother or the State in a paternity action can be said to coincide sufficiently for a court to conclude that privity exists for purposes of applying the doctrine of res judicata. Many courts have held, or indicated that they would hold, that privity between the child and the mother or the State exists when the prior judgment was the result of a trial on the merits, as happened in the present case. For example, in E.I.B. v. J.R.B., 259 N.J.Super. at 104-08, 611 A.2d at 664-67, the court stated:

“We reject the trial court’s view that the mother’s representation of E.I.B. was inadequate because her motivation in bringing the first paternity action was primarily economic while the child’s motivation encompasses a host of non-economic interests, including knowledge of family medical history and the basic human need to know one’s heritage. As the court noted in Bradley v. Division of Child Support Enforcement ex. rel. Patterson, 582 A.2d 478, 482 (Del.1990), ‘[ijrrespective of the distinctions between the totality of rights in which a child may be interested, as opposed to the rights that are sought to be enforced by a mother or a public official, the fact remains that the putative father’s paternity of the child is the issue being litigated in an action initiated by any one of them.’ ...
“Our conclusion that E.I.B. is bound by the results of the prior paternity action brought by her mother on her behalf is supported by the decisions in most other jurisdictions in which the same or a similar issue has been presented ....
“With only a few exceptions, the cases which have held that a child was not in privity with a parent have involved prior paternity actions which were not actually litigated....
“The only cases brought to our attention in which a subsequent paternity action on behalf of a child has been found not to be barred under principles of res judicata or collateral estoppel by a prior unsuccessful action actually litigated on the child’s behalf in conformity with state law are Ex Parte Snow, 508 So.2d 266 (Ala.1987) and Settle By and Through Sullivan v. Beasley, 309 N.C. 616, 308 S.E.2d 288 (1983). However, these cases represent the minority view and in our opinion fail to accord sufficient weight to the interests of both a putative father and the courts in finality once there has been an adjudication of non-paternity in a proceeding in which the child’s interests have been adequately represented.”

Likewise, in Guziejka v. Desgranges, 571 A.2d 32 (R.I.1990), the Rhode Island Supreme Court stated:

“[Tjhere exists a privity relationship between a mother or a public officer who brings a paternity action and the child, whether named in the action as a party or not. It would be unconscionable to allow repetitious litigation of the same issue solely on the ground that the formal party in interest is the child rather than the mother or a public officer who, whether explicitly or not, is representing the child’s interest in respect to paternity and support. The distinction here should be one of substance and not of form.”

571 A.2d at 34 (emphasis added). The court went on to hold, however, that because the prior paternity action had not resulted in an adjudication on the merits, but had ended as the result of a procedural default by the mother, the child would not be precluded from prosecuting a paternity action. Guziejka, 571 A.2d at 35. Other courts have followed the same rationale as E.I.B. and Guziejka. See, e.g., Department of Human Servs. ex rel. Davis v. Seamster, 36 Ark.App. 202, 820 S.W.2d 298 (1991); Bradley, supra; State ex rel. Ricks v. Ricks, 530 So.2d 370 (Fla.Dist.Ct.App.1988) (holding that a child had no right to file a paternity action when the mother’s prior paternity action had been adjudicated on the merits); Draper v. Truitt, 250 Ill.App.3d 654, 621 N.E.2d 202, 190 Ill.Dec. 333 (1993); T.R. v. A.W., 470 N.E.2d 95, 97 (Ind.Ct.App.1984) (“From the child’s perspective, the imposition of preclusion will not dilute any rights not already forwarded by her mother in the first suit. The present statute, by joining the mother, child, and putative father as necessary parties to paternity actions avoids the problem now considered. It does not, however, extend to the parties or their privies a new cause of action where their cases have been fully litigated under the prior statute. For these reasons, the doctrine of issue preclusion bars retrial of this case.”); O’Bannon ex rel. O’Bannon v. Azar, 506 So.2d 522 (La.Ct.App.1987); Department of Human Servs. ex rel. Boulanger v. Comeau, 663 A.2d 46, 48 (Me.1995) (“When a paternity action is litigated to completion, the differing interests of the mother that may have motivated the action are no longer relevant, and the child’s interest is adequately represented even if the child is not made a party to the action.”); Johnson v. Hunter, 447 N.W.2d 871, 876-77 (Minn.1989) (“Because [the child] was not named as a party and was unrepresented in the 1969 action and because the issue of parentage has never been reached, it is difficult to say [the child] had an adequate opportunity to be heard when her mother failed to appear for trial. At that point their interests differed.... Unless a child’s specific interests on paternity are addressed on the merits, a separate cause of action will be available to such child in another proper action.” (emphasis added) ); Opinion of the Justices, 131 N.H. 573, 581, 558 A.2d 454, 458 (1989) (recognizing that although New Hampshire statutes authorized a paternity action by the mother, the child, or a public authority charged with supporting the child, “a judgment in a paternity action obtained against one of these parties may be given preclu-sive effect against all, since action by any one of them asserts the child’s claim, or subrogation rights derived therefrom”); and Slocum ex rel. Nathan A., supra.

Other courts have applied reasoning consistent with that set forth in Ex parte Snow. See Hall v. Lalli, 194 Ariz. 54, 977 P.2d 776 (1999); Settle ex rel. Sullivan v. Beasley, 309 N.C. 616, 308 S.E.2d 288 (1983); Commonwealth ex rel. Gray v. Johnson, 7 Va.App. 614, 376 S.E.2d 787 (1989); and In re paternity of J.F., 205 Wis.2d 510, 557 N.W.2d 84 (Ct.App.1996). See also S.O.V. v. People ex rel. M.C., 914 P.2d 355 (Colo.1996) (holding that a child was not in privity with the State, which had pursued a prior paternity action, when the paternity statute required that the child be made a party to any paternity proceeding); G.E.B. v. S.R.W., 422 Mass. 158, 661 N.E.2d 646 (1996); Johnson v. Norman, 66 Ohio St.2d 186, 421 N.E.2d 124 (1981) (holding that no privity existed between child and mother, who had pursued a prior paternity action that was dismissed with prejudice); State ex rel. Cihlar v. Crawford, 39 S.W.3d 172 (Tenn.Ct.App.2000); and State Dep’t of Health and Human Servs. ex rel. Cline v. Pentasuglia, 193 W.Va. 621, 457 S.E.2d 644 (1995).

In my opinion, the doctrine of res judica-ta or that of collateral estoppel should be applied when there has been a prior trial on the merits in a paternity proceeding, at least to the extent of child-support issues in which the interests of the party bringing the prior action (who has a legal obligation to support the child) and those of the child, clearly coincide. This court, however, is bound by the decision of our Supreme Court in Ex parte Snow. I therefore must agree with the main opinion that the child’s paternity action is not barred by those doctrines.

As for the question of to whom the accrued child support in this case should be paid, I agree that, even if there is disagreement between the custodial parent and her adult child in this regard, that is an issue for the two of them to resolve and not one in which the noncustodial parent has any stake. Cf. Semple School for Girls v. Yielding, 16 Ala.App. 584, 586, 80 So. 158, 160 (1918) (comparing the rights to certain property as between a parent and a child with the interests of the child in that property as against third parties in the context of a conversion action).

BRYAN, J., concurs.

      . Because the paternity action filed on behalf of Crystal was commenced before July 1, 1997, when the Alabama Legislature amended § 26-17-20(b), Ala.Code 1975, to eliminate the right to a jury trial in paternity actions, Harris’s demand for a jury trial, which the trial court granted, was proper. See H.E.T. v. State ex rel. C.D.L., 883 So.2d 706, 709 n. 3 (Ala.Civ.App.2003).

      . Since the decision in a few other courts have held that the doctrine of res judi-cata would not bar the child's action, largely as a result of changes in paternity statutes. See discussion, infra.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    Mozelle M. SEXTON, Sarah S. Lowe, and James M. Lowe v. Cheryl C. WAGNON.
    2050638.
    Court of Civil Appeals of Alabama.
    Nov. 17, 2006.

      Daniel B. King of King & King Attorneys, P.C., Gadsden, for appellants.
    James C. Inzer III of Inzer, Haney & McWhorter, P.A., Gadsden, for appellee.
   BRYAN, Judge.

The plaintiffs Mozelle M. Sexton, Sarah S. Lowe, and James M. Lowe appeal a judgment establishing the boundary line between their property and the property of the defendant Cheryl C. Wagnon. We affirm.

Sexton and the Lowes are the holders of record title to tract 10 (“tract 10”) of the J.T. Noojin Subdivision in Etowah County. Wagnon is the holder of record title to tract 9 (“tract 9”) of that subdivision. Tract 10 lies adjacent to, and east of, tract 9.

In 2005, Sexton and the Lowes sued Wagnon, seeking a determination of the location of the boundary line between the parties’ properties. Sexton and the Lowes contended that the location of the boundary line was depicted on a survey (“the survey line”) prepared for them in 2005. Wagnon contended that the boundary line was located where her possession and the possession of her predecessor in title (“the possession line”) had established it. The southern and northern termini of the survey line and the possession line are the same. However, whereas the survey line runs in a straight northeasterly line from its southern terminus to its northern terminus, the possession line first runs in a straight northeasterly line from the southern terminus of the survey line to a point marked by a metal bed rail that had been driven in the ground, which is an unspecified distance east of the survey line; then runs in a straight northwesterly line to a point marked by a galvanized pipe, which is located on the survey line approximately midway between the southern and northern termini of the survey line; and then runs northeasterly along the survey line to its northern terminus. Thus, a triangle is formed by (1) the segment of the survey line connecting its southern terminus and the galvanized pipe, (2) the segment of the possession line connecting the southern terminus of the survey line and the bed rail, and (3) the segment of the possession line connecting the bed rail and the galvanized pipe. Within that triangle is a gore of land (“the gore”).

The case proceeded to trial before the trial judge, sitting without a jury, and the trial judge received evidence ore tenus. Therefore, in reviewing the trial judge’s judgment, we must view the evidence in the light most favorable to the prevailing party, see Diggs v. Diggs, 910 So.2d 1274, 1275 (Ala.Civ.App.2005), and Driver v. Hice, 618 So.2d 129, 131 (Ala.Civ.App.1993), which, in this case, is Wagnon. Viewed in that manner, the evidence established the following material facts.

Wagnon’s father was deeded tract 9 in 1973. That same year, Wagnon’s father employed a surveyor to survey tract 9 and to mark its boundaries on the ground. The surveyor marked the line he determined to be the boundary line between tract 9 and tract 10 with stakes. Approximately six months later, Wagnon’s father drove a portion of an old metal bed rail into the ground beside one of the stakes the surveyor had used to mark the boundary line between tract 9 and tract 10. The bed rail was located approximately 200 to 300 feet from the southern terminus of the boundary line between tract 9 and tract 10. Wagnon’s father drove a galvanized pipe into the ground beside another stake the surveyor had used to mark the boundary line between tract 9 and tract 10. The galvanized pipe was located approximately 300 to 400 feet northwest of the bed rail and approximately midway between the southern and northern termini of the boundary line between tract 9 and tract 10. Over the years, the surveyor’s stakes disappeared, but the bed rail and the galvanized pipe remained where Wagnon’s father had driven them into the ground until 2005. Wagnon’s father treated the bed rail and the galvanized pipe as landmarks marking the boundary line between tract 9 and tract 10.

In 1980 or 1981, Wagnon’s father placed a mobile home a short distance southwest of the bed rail and approximately 10 feet west of the straight line running from the southern terminus of the boundary line between tract 9 and tract 10 to the bed rail. In 1982 or 1983, Wagnon’s father marked the straight line running from the southern terminus of the boundary line to the bed rail by planting three poplar trees along that line. In order to locate the trees along that line, Wagnon’s father ran a string from the southern terminus of the boundary line to the bed rail. He then planted the three trees along the line formed by the string. The line of poplar trees was located south of the mobile home.

Soon after Wagnon’s father planted the three poplar trees, Wagnon married, and she and her husband began living in the mobile home. From that time on, either Wagnon or her father mowed the grass in the gore all the way up to the possession line every one or two weeks. No one other than Wagnon, her husband, and her father has used the gore since 1973. In 1996, Wagnon’s father conveyed tract 9 to her. The deed did not purport to convey to her any part of tract 10 that her father may have possessed adversely.

The owners of tract 10 never gave their permission for Wagnon’s father or Wagnon and her husband to use the gore. In 2005, a surveyor prepared a survey of tract 10 for Sexton and the Lowes. That survey depicted the survey line and indicated that the gore was located east of the survey line. Sexton and the Lowes then demanded that Wagnon cease using the gore and recognize the survey line as the boundary line between the parties’ properties. Wag-non ceased some of her use of the gore but refused to cease using it altogether, and she insisted that the possession line, rather than the survey line, is the boundary line between the parties’ properties.

After the trial, the trial judge viewed the ground where the survey line and the possession line are located. Thereafter, the trial judge entered a final judgment in which he found that Wagnon had acquired title to the gore by adverse possession and, therefore, that the possession line is the true boundary line between the parties’ properties. Sexton and the Lowes appealed to the supreme court, and the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975, transferred the appeal to this court.

On appeal, Sexton and the Lowes argue that the trial court erred in finding that Wagnon owned the gore by virtue of adverse possession because, Sexton and the Lowes say, (1) Wagnon did not hold title to tract 9 for 10 years, the period required to establish adverse possession of a coterminous landowner’s property, before Sexton and the Lowes filed this action; and (2) Wagnon was not entitled to tack her father’s adverse possession of the gore because the deed by which her father conveyed tract 9 to her did not purport to convey the gore to her.

Wagnon concedes that she did not hold title to tract 9 for 10 years before Sexton and the Lowes filed this action; however, she argues that she is entitled to tack her father’s adverse possession of the gore despite the fact that her deed does not purport to convey the gore to her. We agree.

In Watson v. Price, 356 So.2d 625, 627 (Ala.1978), the Alabama Supreme Court stated:

“Because the application of the tacking principle is confusing under our present case law, we deem it appropriate to restate the principle and articulate the rationale for the rule. For the purpose of effecting title by adverse possession, where all the traditional elements are present, tacking of periods of possession by successive possessors is permitted against the coterminous owner seeking to defeat such title, unless there is a finding, supported by the evidence, that the claimant’s predecessor in title did not intend to convey the disputed strip. We hold that this rule should apply even though the conveying instrument contains no legal description of the property in question, and irrespective of the period for which the property was possessed by the present claimant’s predecessor in title.”

(Emphasis added.)

In the case at bar, Wagnon introduced clear and convincing evidence establishing that her father exercised possession of the gore under a claim of right for more than 10 years; that his possession of the gore was actual, exclusive, open, notorious, and hostile; and that, in addition to conveying tract 9 to Wagnon, he delivered possession of the gore to her. Under Watson v. Price, supra, that evidence established a rebuttable presumption that Wagnon was entitled to tack the period her father adversely possessed the gore despite the absence from her deed of language purporting to convey the gore to her. Sexton and the Lowes did not introduce any evidence to rebut that presumption. Therefore, the trial court did not err in finding that Wagnon had adversely possessed the gore.

Sexton and the Lowes make several other arguments for the first time in their reply brief. However, “[an appellate court] does not address issues raised for the first time in a reply brief.” Byrd v. Lamar, 846 So.2d 334, 341 (Ala.2002). Accordingly, we affirm the trial court’s judgment.

AFFIRMED.

MURDOCK, J., concurs.

CRAWLEY, P.J., and THOMPSON and PITTMAN, JJ., concur in the result, without writing.

      . See Johnson v. Brewington, 435 So.2d 64, 65 (Ala.1983) ("The coterminous owners in a boundary dispute 'may alter the boundary line between their tracts of land ... by adverse possession for ten years.' ” (quoting Kerlin v. Tensaw Land & Timber Co., 390 So.2d 616, 618 (Ala.1980))).

      . Although Sexton and the Lowes argue that Wagnon's father did not adversely possess the gore because he did not erect a fence or post signs to mark where the possession line deviated from the survey line, they cite no legal authority for the proposition that the erection of a fence or the posting of signs was a sine qua non of adverse possession by Wagnon’s father. “ ' "[WJhere an appellant fails to cite any authority for an argument, this [c]ourt may affirm the judgment as to th[at] issue[ ], for it is neither this [c]ourt's duty nor its function to perform all the legal research for an appellant.” ' ” Mantiply v. Mantiply, 951 So.2d 638, 653 (Ala.2006) (quoting Spradlin v. Birmingham Airport Auth., 613 So.2d 347, 348 (Ala.1993), quoting in turn Sea Calm Shipping Co. v. Cooks, 565 So.2d 212, 216 (Ala.1990)).


author: MURDOCK, Judge.

text:
    Katherine Lynn LEWIS v. Steve Allen LEWIS.
    2050115.
    Court of Civil Appeals of Alabama.
    Nov. 17, 2006.

      J.R. Herring, Dothan, for appellant.
    Michael B. Brown, Dothan, for appellee.
   MURDOCK, Judge.

Katherine Lynn Lewis (“the mother”) appeals from a judgment transferring the physical custody of the parties’ two minor children.

The mother and Steve Allen Lewis (“the father”) were divorced in November 2001. The parties have twins, a son and a daughter, who were four years old at the time of the divorce and eight years old at the time of the trial in this case. The divorce judgment awarded the parties “joint custody” of the children, with the mother having “primary custody” and the father having reasonable rights of visitation. In March 2002, the trial court entered an order that, among other things, increased the amount of the father’s child-support obligation but did not alter custody of the children.

In June 2005, the father filed a petition to modify custody, alleging that there had occurred a material change in circumstances since March 2002 that necessitated a change in custody and that “the positive good that would result to the children from the change in the primary physical custody would greatly outweigh any disruptive effects that might be caused thereby.” The father alleged that

“a change in custody would provide better day to day living conditions, more stability, more attention, more family time, more security and less negative influences for the minor children. The children want to live with their father. The Plaintiff/Mother has had a man spend the night in her home with the children present.”

On August 9, 2005, the trial court conducted an ore tenus proceeding at which it heard testimony from the parties, both children, and others. On August 16, 2005, the trial court entered a judgment granting the father’s petition to modify custody. The judgment provided, in pertinent part:

“[The father’s alleged grounds for a modification of custody] include partiality and harshness in discipline between the two children, lack of time and attention devoted to them, inadequate housekeeping, and presence of a male in the home overnight from time to time.
“Upon hearing the evidence, the Court finds that there has been a material change of circumstances in that there was material proof of all of the aforementioned other than the lack of impartiality in discipline. Additionally, the children are strong and articulate in their desire to live with their father. Therefore, the Court changes primary custody of the minor children to [the father] with [the mother] to have the same rights of visitation under the Divorce Decree as granted to the noncustodial parent. The Court finds that the benefits accruing to the children from such a change would outweigh any disruptive effect particularly since the children would remain in the same school.”

The mother filed a postjudgment motion, which was denied.

The mother appeals, contending (1) that the trial court denied her due process by arbitrarily limiting to one hour the amount of time that each party had to present his or her evidence and by allowing the father to exceed his allotted amount of time and (2) that the father did not meet the burden imposed on him by Ex parte McLendon, 455 So.2d 863 (Ala.1984).

The parties are both public-school teachers in the Dothan area. The father is a high-school teacher and golf coach. The mother teaches fourth grade in the same school that the children attend. The parties live within a few miles of each other, and the children will be able to attend the same school regardless of which party has physical custody.

During the 2003-2004 academic year, the mother hosted two high-school foreign-exchange students in her home. Those students were both females and were 16 years old when they lived with the mother and the children. The evidence shows that the children liked the exchange students and that there were no particular problems with the exchange students.

In 2004, the mother obtained approval from the Alabama Department of Human Resources to be a foster parent. The mother completed a 10-week training course and passed the required background checks and home inspections. From August through October 2004, the mother served as a foster parent for an 18-year-old girl who was learning disabled. From November 2004 through June 2005, the mother was foster mother to J.M. At the time of the trial, J.M. was 18 years old and had a 19-month-old baby of her own who lived with J.M. in the mother’s home. During her stay in the mother’s home, J.M. was working full-time.

There is evidence in the record to support the trial court’s findings concerning the mother’s lack of time and attention to the children. J.M. testified that the mother’s home was frequently “hectic” because the mother would start too many things and would then be unable to finish any of them. J.M. also testified that, in her opinion, the mother did not spend enough time with the children. It appears that the hectic conditions in the mother’s home were exacerbated by the mother’s admittedly messy housekeeping.

The father testified that the mother’s home was in “utter chaos” and lacked stability because of the coming and going of the exchange students and the foster children. The father testified that he felt that the mother could not give adequate time and attention to the parties’ children and also care for the exchange students and the foster children, some of whom the father described as “high maintenance.”

There is evidence in the record indicating that the mother was harsh in disciplining the children and that she often yelled at both children and often spanked the son. J.M. testified that the children were more scared and reserved around the mother than they were around the father. A friend of the father testified that the son was more reserved than he had been before the divorce. Both children testified that they much preferred to live with the father because he was nicer and his discipline was not as harsh. There is evidence indicating that the children began asking to live with the father shortly after the divorce.

Finally, there is evidence indicating that the mother’s boyfriend had spent four or five nights in the mother’s home while the children were present. The record also shows, however, that on each occasion the mother and the boyfriend slept in different rooms.

The mother’s first contention is that the trial court erred by arbitrarily limiting each party to one hour in which to present his or her evidence and by allowing the father additional time not granted to the mother. In general, a trial court does not have discretion to arbitrarily limit the time in which the parties must present their evidence and “ ‘a trial court may not simply disallow testimony due to time constraints and the desire to clear its docket.’ ” Harbert v. Harbert, 721 So.2d 224, 225 (Ala.Civ.App.1998) (quoting Morrison v. Morrison, 628 So.2d 839, 841 (Ala.Civ.App.1993)).

In this case, however, the mother did not preserve these arguments for appellate review. Among other things, she did not object to the time limitation or request additional time in which to complete the presentation of her evidence. Davis v. Southland Corp., 465 So.2d 397, 402 (Ala.1985) (“Timely objection is a condition precedent to raising an error on appeal.”).

The mother’s second contention is that the father did not meet the burden imposed on him by Ex parte McLendon, supra. As to this substantive contention, we note the presumption of correctness accorded to the trial court’s judgment:

“When this Court reviews a trial court’s child-custody determination that was based upon evidence presented ore ten-us, we presume the trial court’s decision is correct: ‘ “A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong....” ’ Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993) (citations omitted). This presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. ‘In child custody cases especially, the perception of an attentive trial judge is of great importance.’ Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981).”

Ex parte Fann, 810 So.2d 631, 633 (Ala.2001).

To the extent that the trial court did not make detailed written findings of fact, we must “ ‘assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.’ ” Ex parte Fann, 810 So.2d at 636 (quoting Lemon v. Golf Terrace Owners Ass’n, 611 So.2d 263, 265 (Ala.1992)). Moreover, we note that it is not the role of the appellate courts to reweigh the evidence. Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).

Ex parte McLendon provides that when one parent has been awarded sole physical custody,

“ ‘the party seeking modification [must] prove to the court’s satisfaction that material changes affecting the child’s welfare since the most recent [judgment] demonstrate that custody should be disturbed to promote the child’s best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child.’ ”

455 So.2d at 865 (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976)).

The trial court found that there had been a material change in circumstances since the entry of the March 2002 modification order and “that the benefits accruing to the children from such a change [of custody] would outweigh any disruptive effect.” We have reviewed the record and conclude that there is evidence to support the trial court’s determination. Although the parties have not experienced what could be considered major life changes— e.g., changing jobs, moving to a different town, remarriage, health problems, etc.— since the divorce, the trial court could have concluded that the cumulative effect of the events and behaviors that the trial court found to have occurred was sufficient to constitute a material change in circumstances and to warrant a change of custody. See Ex parte Devine 398 So.2d 686 (Ala.1981) (listing factors to consider in determining custody).

Although many of the mother’s behaviors at issue in this case were of concern to the father during the divorce proceeding, there is evidence indicating that the conditions in the mother’s household have worsened since the entry of the March 2002 modification order. The trial court could reasonably have concluded that the conditions in the mother’s home have become more hectic and chaotic and that those conditions are materially affecting the children. Among other things, the trial court could have concluded that the presence of additional “high maintenance” children exacerbated the problems arising from the mother’s lack of time and attention to the parties’ children.

Further, the children both expressed a “strong and articulate” desire to live with the father. The preference of a child to live with a particular parent is not determinative, but it is a factor to be considered by the court. See Overturf v. Leverett, 702 So.2d 469, 471 (Ala.Civ.App.1997) (affirming a change of custody based in large part on the child’s desire to live with his father); and Terry v. Ragland, 666 So.2d 539, 541 (Ala.Civ.App.1995) (trial court properly considered the children’s preferences, along with other factors, in modifying custody). The reasons given by the children for their desire to live with the father are consistent with testimony that the mother did not spend enough time with the children, that the mother’s discipline was harsh and apparently ineffective, that the children were scared of the mother, and that the children were more reserved in the mother’s presence.

Finally, the trial court reasonably could have concluded that the disruptive effect of a change of custody was not great. From the time of the divorce until the trial court’s judgment, the father and the mother lived in the same community. The father exercised his visitation rights and was actively involved in the children’s lives. Further, the children will continue to attend the same school and participate in the same activities regardless of which parent has primary custody.

Based on the record before us, and the deference owed to a trial court’s judgment based on evidence received ore tenus, the trial court’s judgment in this case is due to be affirmed.

The mother’s and the father’s requests for the award of attorney fees on appeal are denied.

AFFIRMED.

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

      . Before the parties divorced, they hosted a foreign-exchange high-school student in their home.

      . The father testified that
      “the things that I knew about prior to the divorce that were not brought out in court have gotten even worse since then, especially with the introduction of all these people [the children] have had to live with. I have always asked, when are they going to have their own childhood? They are always accommodating everybody else."


author: CRAWLEY, Presiding Judge.

text:
    STATE DEPARTMENT OF HUMAN RESOURCES ex rel. Kathy BOWEN v. Stanley BOWEN.
    2050544.
    Court of Civil Appeals of Alabama.
    Nov. 22, 2006.

      Troy King, atty. gen., and Sharon E. Ficquette and Jennifer M. Bush, asst, at-tys. gen., for appellant Department of Human Resources.
    Joshua B. Sullivan of Henslee, Robertson, Strawn & Sullivan, LLC, Gadsden, for appellee.
   CRAWLEY, Presiding Judge.

Kathy Bowen (“the former wife”) and Stanley Bowen (“the former husband”) were divorced in August 2002. The former wife was awarded custody of the parties’ two children. The former husband was required to pay child support and alimony. In addition, among other things, the divorce judgment required the former husband to pay certain debts of the parties.

The former husband became delinquent in his alimony payments and failed to comply with certain other requirements of the divorce judgment, so the former wife moved to have the former husband held in contempt in February 2003. The former wife’s motion was docketed as case number DR-01-1171.01. The former husband answered the wife’s motion and counterclaimed for a reduction in alimony and in child support based upon his loss of income due to disability. The contempt issues and the modification issues were' finally addressed in a judgment entered on April 6, 2005, in which the trial court did not find the former husband in contempt, determined the former husband’s alimony and child-support arrearages, modified the former husband’s child-support obligation, and did not modify the former husband’s alimony obligation. The former husband filed a Rule 59, Ala. R. Civ. P., motion to alter, amend, or vacate the April 7 judgment on April 29, 2005. In that motion, he also sought a modification of custody. The former wife objected to the former husband’s request to modify custody, which had not been an issue in the case. The trial court entered an order on the former husband’s postjudgment motion on October 25, 2005. In that order, the trial court stated that the parties had “agreed to waive any time constraints on a post-judgment ruling.” The court further determined that the former wife would receive $7,666 in Social Security benefits that the parties’ children were due to receive as a result of the former husband’s disability; the trial court credited $2,778.18 of that amount against the former husband’s alimony arrearage and ordered that the remaining $4,887.82 should be credited against the former husband’s future alimony payments.

The State Department of Human Resources (“DHR”), on behalf of the former wife, moved to have the former husband held in contempt regarding the former husband’s child-support arrearage in March 2005. That action was docketed as case number DR-01-1171.02. The trial court dismissed that case without prejudice in October 2005.

After the former wife objected to the former husband’s attempt to inject the custody issue into case number DR-01-1171.01, the former husband filed a separate action seeking custody in May 2005. That action was docketed as case number DR-01-1171.03. The parties reached an agreement regarding custody, which was reflected in the trial court’s October 25, 2005, judgment. That judgment reflected that it was entered in both case number DR-01-1171.01 and case number DR-01-1171.03.

DHR appeals from the October 25, 2005, judgment entered in both case number DR-01-1171.01 and case number DR-01-1171.03 insofar as the judgment awards the former husband a credit toward his alimony arrearage and a credit toward his future alimony payments based on the former wife’s receipt of Social Security benefits allegedly due the parties’ children as a result of the former husband’s disability. Because DHR was not a party below, because the record does not reflect that DHR intervened in either case number DR-01-1171.01 or case number DR-01-1171.03, and because DHR did not demonstrate that it is the real party in interest, we conclude that DHR is not a proper party to bring an appeal from the October 25, 2005, judgment, and, therefore, we dismiss the appeal.

“To have standing to appeal a judgment, one must have been a party to the judgment below. The caption of the complaint indicates the parties to a judgment on that complaint.” Triple J Cattle, Inc. v. Chambers, 621 So.2d 1221, 1223 (Ala.1993) (citation omitted). As noted above, case number DR-01-1171.01 was a contempt action instituted by the former wife and case number DR-01-1171.03 was a custody-modification action instituted by the former husband. The captions in both complaints contain only the names of the former husband and the former wife. The caption of the October 25, 2005, judgment entered in both cases contains only the names of the former husband and the former wife. The case-action-summary sheet pertaining to both actions does not indicate that DHR was made a party to either action. The only action to which DHR was a party was the action instituted by it in case number DR-01-1171.02, and that action was dismissed.

Thus, because “one who is not a party to a cause cannot appeal,” we dismiss the appeal. Sho-Me Motor Lodges, Inc. v. Jehle-Slauson Constr. Co., 466 So.2d 83, 88 (Ala.1985) (dismissing the appeal of a purported appellant who was not a party aggrieved by a judgment it attempted to appeal).

DHR also argues that it is entitled to a writ of mandamus because, it alleges, the October 25, 2005, judgment is void because it was entered more than 90 days after the former husband’s postjudgment motion was filed. See Rule 59.1, Ala. R. Civ. P.; and State v. Redtop Market, 937 So.2d 1013, 1014 (Ala.2006). The former husband supplemented the record with a statement indicating that the parties agreed in open court to extend the 90-day period to rule on his postjudgment motion but that the court reporter failed to record the agreement. Although DHR’s attorney challenges the supplementation, presenting an affidavit from the attorney who represented DHR in the trial court stating that she never agreed to extend the 90-day period, because we have concluded that DHR was never a party to either case number DR-01-1171.01 or case number DR-01-1171.03, DHR’s consent would not have been required to extend the 90-day period. In addition, we note that DHR’s appeal was filed on April 3, 2006, more than 42 days after the entry of the October 25, 2005, judgment. Therefore, if DHR’s appeal had been treated as a petition for a writ of mandamus, it would have been presumptively untimely. Rule 21(a), Ala.R.App. P.; and Ex parte Fiber Transp., L.L.C., 902 So.2d 98 (Ala.Civ.App.2004). We therefore decline to treat DHR’s appeal as a petition for a writ of mandamus.

APPEAL DISMISSED.

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

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


text:
    Deborah EADY v. CREWS MOBILE HOMES, INC.
    2050743.
    Court of Civil Appeals of Alabama.
    Nov. 22, 2006.
    Richard D. Lively, Prattville, for appellant.
    M. Andrew Donaldson of Slaten & O’Connor, P.C., Montgomery; and Carol Ann Smith and Candace L. Hudson of Smith & Ely, LLP, Birmingham, for appel-lee.
   CRAWLEY, Presiding Judge.

In March 2001, Deborah Eady and her son, Jason Eady, went to the premises of Crews Mobile Homes, Inc., to view some mobile homes because Jason was considering purchasing one. Jason had asked Deborah to co-sign on a loan with him. Deborah originally agreed to co-sign with Jason; in fact, she executed several documents pertaining to the sale of a mobile home to Jason. However, certain of those documents contained errors, and Jason and Deborah were told that they would have to execute the documents again. Deborah began to have misgivings about co-signing the loan; she did, however, execute the documents a second time. When Crews informed Jason and Deborah that the second set of documents were also invalid, Deborah told Jason that she would not co-sign the documents. Jason told Crews that Deborah would not sign the documents; allegedly, Crews told Jason that he could sign Deborah’s signature on the documents, and Jason did so. Jason did not inform Deborah that he signed her name to the documents relating to his purchase of the mobile home.

In July 2004, Green Tree-AL, LLC, the company with which the purchase of the mobile home was financed, sued Jason and Deborah, alleging that they had defaulted on the payments due under the installment sales contract for the mobile home. On October 7, 2004, Deborah filed a counterclaim against Green Tree, a cross-claim against Jason, and a third-party complaint against Crews. Deborah’s third-party complaint alleged that Crews had been negligent and/or wanton when it knowingly accepted her forged signature on the sales and financing documents and alleged that Crews had conspired with Jason to conceal the fact that Jason had forged Deborah’s signature on the sales and financing documents. Thereafter, Green Tree and Deborah entered into a stipulation of dismissal without prejudice regarding Green Tree’s claims against Deborah.

After filing its answer to Deborah’s third-party complaint, Crews filed a motion for a summary judgment against Deborah, arguing that her claims against it were barred by the applicable two-year statute of limitations, which, Crews contended, had expired on or about March 21, 2003. Deborah responded to the summary-judgment motion by arguing that her cause of action against Crews had not accrued until such time as she was actually damaged by the forging of her name on the sales and financing documents, i.e., once she was sued by Green Tree based on her apparent liability under the financing documents for Jason’s default on the payments. The trial court entered a summary judgment in favor of Crews, which it later made final pursuant to Rule 54(b), Ala. R. Civ. P. Deborah timely appealed to this court, which transferred the appeal to the supreme court because of our lack of subject-matter jurisdiction, see Ala.Code 1975, § 12-3-10; the supreme court then transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

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

Crews argues that Deborah’s cause of action against it accrued on or about March 21, 2001, when Jason signed her name to certain documents in connection with the sale of a mobile home to Jason. Relying on Gilmore v. M & B Realty Co., 895 So.2d 200, 208 (Ala.2004) (quoting Chandiwala v. Pate Construction Co., 889 So.2d 540, 543 (Ala.2004)), Crews argues that Deborah’s cause of action accrued on the date that Jason signed her name to the sale and financing documents because she would have been able to maintain an action against it on that date despite the fact that her full damages had not yet accrued. Indeed, Gilmore does reiterate the principles that “ ‘[t]he statute of limitations on a claim begins to run when the cause of action accrues’ ” and that “ ‘[a] cause of action accrues as soon as the claimant is entitled to maintain an action, regardless of whether the full amount of damage is apparent at the time of the first legal injury.’ ” Gilmore, 895 So.2d at 208 (quoting Chandiwala, 889 So.2d at 543). To better understand the application of these principles, we will examine Gilmore.

In 1993, the Gilmores responded to an advertisement placed by M & B Realty Company (“M & B”) advertising for sale houses upon which the Department of Veterans’ Affairs (“VA”) had foreclosed. Gilmore, 895 So.2d at 204. The realtor showed the Gilmores a house located at 4361 Bayou Drive in Theodore, Alabama. Id. at 205. However, the house on which the VA had foreclosed was actually located at 4360 Bayou Drive. Id. To confuse the situation even more, the VA paperwork listed the address of the house as 4369 Bayou Drive, an address that did not exist. Id. at 204. The Gilmores eventually made an offer on the house located at 4361 Bayou Drive and, ultimately, purchased the property on which the VA had foreclosed. Id. at 205. The Gilmores lived in the house located at 4361 Bayou Drive for over five years beginning in November 1993; on April 11,1999, L.K. Crenshaw appeared on their doorstep and announced that he owned the house at 4361 Bayou Drive. Id. at 207. Upon investigation, the Gilmores discovered that, in fact, they owned not the house located at 4361 Bayou Drive but instead the house located across the street at 4360 Bayou Drive, which was occupied by others and was in a dilapidated condition. Id. In August 2000, the Gilmores sued M & B and others, alleging, among other things, negligence and wantonness against M & B. Id. at 203 & 208. The trial court entered a summary judgment in favor of M & B without stating a ground. Id. at 203.

On appeal, the parties both agreed that the trial court likely entered a summary judgment on the negligence and wantonness claims against M & B on the basis that the two-year statute of limitations had run on those claims before the Gilmores filed their action. Id. The Gilmores argued in their brief on appeal “that they experienced no injury at the time of the closing of the transaction on November 24, 1993, but rather that ‘the injury occurred when the true owner of the house first appeared at the [Gilmores’] doorstep in 1999.’ ” Id. at 207-08. In response to this argument, the court stated that “the Gil-mores misperceive the law” and proceeded to an analysis of whether the statute of limitations had run on the negligence and wantonness claims. Id. at 208. After stating the general rules governing the accrual of a cause of action as quoted above, the court explained that, “[h]ad the Gilmores learned the true nature of the property mix-up immediately after the transaction closed and they began occupying the premises, they could have begun prosecution then of the same negligence and wantonness claims they asserted in August 2000.” Id.

The injury to the Gilmores occurred on the date of closing when they purchased a house they had not been shown and would not have desired to purchase and began living in a house that they did not actually own. They would have been able to maintain a cause of action alleging negligence and wantonness on the date of closing. Thus, their cause of action against M & B accrued on that date.

Deborah argues that her injury did not occur on the date that Jason signed her name to the sales and financing documents. Deborah says that she suffered no injury merely as a result of having her name forged. Instead, she argues, she was not injured until she had to defend the action filed by Green Tree. Based on Ex parte Floyd, 796 So.2d 308 (Ala.2001), we agree with Deborah.

Ex parte Floyd, like the present case, involved a forged instrument. In Ex parte Floyd, however, the instrument was a “Full Satisfaction of Mortgage” and the defendant was the notary who had improperly notarized the instrument. The problem began when, in June 1996, Diversified, Inc., sold some real property to Trantham Enterprises, Inc.; the purchase was accomplished by a small cash payment accompanied by a $22,500 note secured by a mortgage. Ex parte Floyd, 796 So.2d at 304. The mortgage was recorded in the Jefferson Probate Court. Id. Trantham Enterprises in turn sold the real property to James Lay doing business as Kenco Investments. Id.

In January 1997, Kristie Wilson, a notary public, was presented a document to notarize. Id. at 304. That document, which was entitled “Full Satisfaction of Mortgage,” purported to recognize the complete satisfaction of Trantham Enterprise’s debt to Diversified that was secured by the mortgage. Id. at 305. The signature on the document was purportedly that of “Joel Williams,” who was described as the “Vice President” of Diversified. Id. However, the acknowledgment on the document described the signatory as Bobby Floyd, the president of Diversified. Id. Wilson notarized the document despite the discrepancy, and it was subsequently recorded in the Jefferson Probate Court. Id.

Colonial Bank loaned money to Lay, based on what appeared to be his clear title to the real property. Id. Colonial Bank eventually foreclosed on the mortgage, recorded a foreclosure deed, and, on September 29, 1998, moved to intervene in a lawsuit involving Diversified and Floyd to assert its claim that its mortgage was superior to the one held by Diversified. Id. Diversified, of course, maintained that its mortgage was superior. Id. The outcome of that action was not clear from the record in Ex parte Floyd. Id.

In February 1999, Diversified sued Wilson and her bond company, alleging that she had negligently exercised her duty as a notary public. Id. The defendants sought to have the complaint dismissed because, they argued, it was filed outside the two-year statute of limitations. Id. They argued that the statute of limitations began to run on the date that Wilson had notarized the forged document. Id. at 305-06.

Our supreme court disagreed. It explained when a statute of limitations commences to run thusly:

“In Garrett v. Raytheon Co., ... 368 So.2d [516,] 518-19 [ (Ala.1979) ], this Court stated:
“ ‘The very basic and long settled rule of construction of our courts is that a statute of limitations begins to run in favor of the party liable from the time the cause of action “accrues.” The cause of action “accrues” as soon as the party in whose favor it arises is entitled to maintain an action thereon.
[T]here are cases where the act complained of does not itself constitute a legal injury at the time, but plaintiffs injury only comes as a result of, and in furtherance and subsequent development of, the act defendant has done. In such cases, the cause of action “accrues,” and the statute of limitation^] begins to run, “when, and only when, the damages are sustained.” ’
“(Quoting Kelley v. Shropshire, ... 199 Ala. [602,] 605, 75 So. [291,] 292 [ (1917) ].) Thus, if the act complained of does not in and of itself constitute a legal injury on the date on which it was performed, the cause of action does not accrue on that date. It is only when the first legal injury occurs that the cause of action accrues and the limitations period begins to run.”

Ex parte Floyd, 796 So.2d at 308.

The court noted that the satisfaction-of-mortgage document was void because it was forged. Id. That fact, according to the court, did “bear on the analysis of the timing of Diversified’s injury.” Id. The court went on to explain that Diversified appeared to be the victim of wrongdoing by those responsible for the forged satisfaction-of-mortgage document and concluded that, there being no evidence indicating that “Diversified had prior knowledge of a cloud on its title” or that Diversified had “incurred any loss or expense as a result of having that knowledge,” the statute of limitations on Diversified’s claim against Wilson would have begun to run at “the time when it incurred actual damage as a result of Wilson’s actions,” which was when Diversified was required to defend its title when Colonial Bank first asserted the priority of its mortgage — September 29, 1998. Id. at 308. Because Diversified’s complaint was filed on February 8, 1999, which was within two years of September 28, 1998, the court reversed this court’s affirmance of the trial court’s dismissal of Diversified’s complaint on statute-of-limitations grounds. Id. at 309.

Based on the principles espoused in Ex parte Floyd, Deborah’s injury did not occur on the date Jason signed her name to the sales and financing documents. Deborah incurred no liability on that date because her signature was a forgery. Ala. Code 1975, § 7-3-401(a)(i) (“A person is not hable on an instrument unless ... the person signed the instrument.”); see also Ex parte Floyd, 796 So.2d at 308 (“A forged instrument is void.”). Because there is no evidence indicating that Deborah had any knowledge of the forged signature on the sales and financing documents or that she had suffered any loss or had gone to any expense as a result of the forged documents, until Deborah had to defend Green Tree’s action, she had suffered no injury and therefore had no cause of action against Crews to maintain. Ex parte Floyd, 796 So.2d at 308. That is, Deborah’s cause of action did not accrue at the time Jason forged the documents but instead accrued in July 2004, when Jason defaulted on the payments and Deborah had to defend the action filed against her by Green Tree. Thus, the trial court incorrectly entered a summary judgment in favor of Crews based on its statute-of-limitations argument. The judgment is therefore reversed, and the cause is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

THOMPSON and PITTMAN, JJ., concur.

MURDOCK and BRYAN, JJ., concur in the result, without writing.


text:
    Leigh Dunn MARCHAND v. KERR-McGEE CHEMICAL, LLC.
    2050705.
    Court of Civil Appeals of Alabama.
    Nov. 22, 2006.
    J. Stephen Legg, Mobile, for appellant.

      John F. Janecky of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for appellee.
   CRAWLEY, Presiding Judge.

This is a workers’ compensation case. Leigh Dunn Marchand (“the worker”) appeals from a summary judgment entered against her and in favor of Kerr-McGee Chemical, LLC (“the company”). Interestingly, it was the company in this case that brought suit against the worker, seeking a judgment that the worker was not entitled to workers’ compensation benefits. The worker counterclaimed, alleging that she was entitled to workers’ compensation benefits and that she was wrongfully discharged in retaliation for making a workers’ compensation claim. On April 20, 2005, the trial court entered a summary judgment in favor of the company on the worker’s claim for workers’ compensation benefits. On May 4, 2005, the trial court ordered that the case be consolidated with case number CV-04-1976, a separate action brought by the worker against various defendants, including Terry Taylor, M.D., Mary Meyer, and Kerr-McGee Chemical Corporation. On March 10, 2006, the trial court purported to enter a “final” summary judgment in favor of the company and against the worker on the worker’s retaliatory-discharge claim. The worker appealed the trial court’s judgment as to her wrongful-discharge claim to our supreme court, which transferred this appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

Although the trial court entitled its order of March 10, 2006, as a “final” judgment,

‘“it is not the title of an order that makes it final; rather, the test of a judgment’s finality is whether it sufficiently ascertains and declares the rights of the parties.’ Ex parte DCH Reg’l Med. Ctr., 571 So.2d 1162, 1164 (Ala.Civ.App.1990) (citing McCulloch v. Roberts, 290 Ala. 303, 276 So.2d 425 (1973)). ‘An appeal will ordinarily lie only from a final judgment; that is, a judgment that conclusively determines the issues before the court and ascertains and declares the rights of the parties.’ Palughi v. Dow, 659 So.2d 112, 113 (Ala.1995).”

Queen v. Belcher, 888 So.2d 472, 475 (Ala.2003).

The trial court’s judgment does not resolve all the issues before it concerning all the parties. The trial court consolidated the worker’s action against Terry Taylor, M.D., Mary Meyer, and Kerr-McGee Chemical Corporation, case number CV-04-1976, with her action against the company alleging wrongful discharge under the workers’ compensation act. Nothing in the record before this court indicates that the trial court entered any judgment regarding the worker’s claims against the defendants in case number CV-04-1976. Furthermore, the trial court did not certify the judgment against the worker in her wrongful-discharge action as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.

This court has a duty to dismiss, on its own motion, an appeal from a nonfinal judgment. See, e.g., Wilson v. Wilson, 736 So.2d 633, 634 (Ala.Civ.App.1999). Consequently, we must dismiss this appeal because it is from a nonfinal judgment.

APPEAL DISMISSED.

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

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


author: BASCHAB, Judge.

text:
    Willie Edward WILLIAMS v. STATE of Alabama.
    CR-05-0291.
    Court of Criminal Appeals of Alabama.
    Aug. 25, 2006.
    Rehearing Denied Oct. 27, 2006.
    Certiorari Denied Dec. 8, 2006 Alabama Supreme Court 1060284.
    Raymond E. Johnson, Montgomery, for appellant.
    Troy King, atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, Willie Edward Williams, was convicted of one count of first-degree burglary, a violation of § 13A-7-5(a)(l), Aa.Code 1975, with regard to Count 1 of the indictment; nine counts of third-degree burglary, violations of § 13A-7-7, Ma.Code 1975, with regard to Counts 2-10 of the indictment; five counts of first-degree theft of property, violations of § 13A-8-3(a), Aa.Code 1975, with regard to Counts 11, 12, 14, 15, and 16 of the indictment; three counts of second-degree theft of property, violations of § 13A-8-4(a), Aa.Code 1975, with regard to Counts 13, 17, and 18 of the indictment; and one count of third-degree theft of property, a violation of § 13A-8-5, Aa.Code 1975, with regard to Count 19 of the indictment. The trial court sentenced him, as a habitual offender, to serve terms of life in prison on Counts 1, 2, 4, 5, 6, 7, 11, 12, 14, 15, 16, and 17 of the indictment and terms of twenty years in prison on Counts 3, 8, 9, 10, 13, and 18 of the indictment. See § 13A-5-9, Aa.Code 1975. It also sentenced him to serve a term of one year in the county jail on Count 19 of the indictment. The appellant filed a motion for a new trial, which was denied by operation of law. See Rule 24.4, Aa. R.Crim. P. This appeal followed.

The appellant argues that the trial court erroneously forced him to represent himself at trial. • Before the trial started, the trial court conducted a hearing on the appellant’s pretrial motions. After a recess in the proceedings and before the voir dire proceedings started, the following occurred:

“THE COURT: A1 right. Let the record show Mr. Williams is back in court now with his lawyer. The [district attorney’s] office is represented by Mr. Foreman and Mr. Dean. The lawyers have reviewed the questionnaires. We’re ready to bring the venire up.
“I understand there’s a motion to be made by the defense counsel. Is there a motion to be made by the defense counsel?
“[DEFENSE COUNSEL]: Your Honor, just on the record, the defendant has fired me as his counsel. So at this time I’d make a motion to withdraw as counsel.
“THE COURT: All right. Well, the defendant is free to represent himself.
“Do you understand court is convened to try your case? Everybody is in place. All the witnesses are here. The venire is downstairs. You understand that you are free to represent yourself if would like? Do you understand that?
“THE DEFENDANT: Your Honor, this man — I got paperwork, facts here. This guy [sat] here and lied in front of your face about the evidence; about the handwriting.
“THE COURT: Are you—
“THE DEFENDANT: I need to hire me a new lawyer.
“THE COURT: No, I’m not — The Court is not going to continue the case. Now, are you ready to proceed to represent yourself?
“THE DEFENDANT: No, I’m not.
“THE COURT: Well, you’re going to have to.
“THE DEFENDANT: I need a new lawyer.
“THE COURT: Well, that’s — you had time to hire him before now. And the Court is going to proceed. You’re free to represent yourself. You can handle it any way you want to. The Court is going to—
“Any other basis for withdrawal?
“[DEFENSE COUNSEL]: No, Your Honor.
“THE COURT: Okay. The Court denies the motion for the — that we continue morning....
“THE COURT: Now, the Court will grant your motion to withdraw. Defendant will represent himself. And we’ll bring the venire up.
“[DEFENSE COUNSEL]: May I be excused, Your Honor?
“THE COURT: You’re excused.
“Bring the venire up.
“Mr. Williams, get in position. Move your chair around here so you can face the venire. Get ready to strike the jury. And we’ll go to trial.
“All right. We have—
“Bring the chair around.
“Let the record show the Court will give him a legal pad and pencil. He will be monitored by the deputy. And after that, Mr. Williams will have to comply with all rules and court procedure.
“THE DEFENDANT: Can I have a paper that’s telling me the rules and court procedures?
“THE COURT: No, no, no. There’s no paper that tells you the rules. Okay? Now, have a seat.
“Everybody get in place. We’ll bring the venire up. Okay?
“Clean legal pad; clean pencil, let the record show that the Court has made available to Mr. Williams.
“Now, go ahead.”

(R. 46-50.) At that time, the trial commenced with the appellant representing himself.

“In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that a defendant has a Sixth Amendment right to represent himself in a criminal case. In order to conduct his own defense, the defendant must ‘knowingly’ and ‘intelligently’ waive his right to counsel, because in representing himself he is relinquishing many of the benefits associated with the right to counsel. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. The defendant ‘should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” ’ Faretta, 422 U.S. at 836, 95 S.Ct. at 2541 (other citations omitted).”

Tomlin v. State, 601 So.2d 124, 128 (Ala.1991). Rule 6.1(b), Ala. R.Crim. P., states, in part: “If a nonindigent defendant appears without counsel at any proceeding after having been given a reasonable time to retain counsel, the cause shall proceed.” However, the previous paragraph of Rule 6.1(b), Ala. R.Crim. P., which does not distinguish between indigent and nonindi-gent defendants, provides, in pertinent part:

“A defendant may waive his or her right to counsel in writing or on the record, after the court has ascertained that the defendant knowingly, intelligently, and voluntarily desires to forgo that right. At the time of accepting a defendant’s waiver of the right to counsel, the court shall inform the defendant that the waiver may he withdrawn and counsel appointed or retained at any stage of the proceedings.”

(Emphasis added.) Finally, the Committee Comments to Rule 6.1 state: “The court is required to inform the defendant that the waiver may be withdrawn since under section (c) the defendant has the burden of requesting counsel if he later decides to withdraw the waiver.”

Even if we were to hold that the appellant impliedly waived his right to counsel when he fired his attorney during a recess in the proceedings, the record in this case does not indicate that the trial court ever advised the appellant about the dangers and disadvantages of self-representation and that he had the right to withdraw any waiver of the right to counsel at any time during the proceedings. See Leonard v. State, 484 So.2d 1185 (Ala.Crim.App.1985). Accordingly, we must reverse the trial court’s judgment and remand this case for a new trial. See Farid v. State, 720 So.2d 998 (Ala.Crim.App.1998); Hairgrove v. State, 680 So.2d 946 (Ala.Crim.App.1995). On remand, should the appellant, whether indigent or nonindigent, waive his right to be represented by counsel, the trial court shall comply with the requirements of Faretta and Rule 6.1(b), Ala. R.Crim. P.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB and WISE, JJ., concur; SHAW, J., concurs in the result.

      . Because we must reverse the appellant’s convictions on this ground, we need not address the remaining issues he raises on appeal.


text:
    Diana Lynn SHIVENER v. STATE of Alabama.
    CR-05-0978.
    Court of Criminal Appeals of Alabama.
    Aug. 25, 2006.

      Aimee C. Smith, Montgomery, for appellant.
    Troy King, atty. gen., and John J. Davis, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, Diana Lynn Shivener, pled guilty to reckless murder, a violation of § 13A-6-2(a)(2), Ala.Code 1975, and leaving the scene of an accident with injuries, a violation of § 32-10-1, Ala.Code 1975. Ultimately, the trial court sentenced her to serve a term of twenty years in prison on the reckless murder conviction, but split the sentence and ordered her to serve five years followed by five years on probation. It also sentenced her to serve a term of ten years in prison on the leaving the scene conviction, but split the sentence and ordered her to serve three years followed by five years on probation. The appellant did not file any post-judgment motions. This appeal followed.

The appellant argues that “the trial court erred by imposing an increased sentence on [her] after the trial court had previously entered a valid sentence.” (Appellant’s brief at p. 8.) The trial court initially conducted a sentencing hearing on January 11, 2006. After giving the victim’s family an opportunity to be heard, the following occurred:

“THE COURT: All right. On each of these counts, you are hereby sentenced to 15 years in the penitentiary, split to serve five, followed by three years probation. However, as the — I want you to complete the LifeTech program—
“[DEFENSE COUNSEL]: Excuse me, Your Honor. Leaving the scene of the accident, the maximum punishment is 10 years. That’s a class C felony, so it couldn’t—
“THE COURT: Okay. Well, I’m sorry. Fifteen years on the class A, 10 years on the class C, split to serve five; but, however, I want you to complete the Life Tech program first, pay court costs, $50 Victim’s Compensation Fund. Restitution?
“[PROSECUTOR]: Restitution in the amount of $696.
“THE COURT: $696 in restitution. Sentence is to run concurrent. Thank y’all.
“(Short recess.)
“(Defendant present.)
“THE COURT: Okay. I previously sentenced you to 15 years split five, and I now understand that I can’t do that, that five is too long a split under the law. Is that right?
“[DEFENSE COUNSEL]: Yes, sir.
“THE COURT: Everything stays the same except it’s 10 split to serve three, concurrent.
“THE DEFENDANT: And I still go to Life—
“THE COURT: Yes, ma’am. Just tell them that was a mistake we made.
“(Court adjourned.)”

(R. 12-13.)

On January 12, 2006, the State filed a “Motion to Reconsider Sentence” in which it alleged that the victim’s representative was not present when the trial court amended the appellant’s split sentence on the leaving the scene conviction and that the victim’s representative had a right to be present. On January 18, 2006, defense counsel filed a “Defendant’s Response to State’s Motion to Reconsider Sentence” in which he asserted:

“At this time the Court cannot bring the Defendant back before it to enhance the sentence. See Ex parte Tice, 475 So.2d 590 (Ala.1984), Wood v. State, 602 So.2d 1195 (Ala.Cr.App.1992). Therefore, unless the State wishes to reduce the Defendant’s sentence, there is no reason to reconsider the Defendant’s sentence.”

(C.R. 22.)

On February 1, 2006, the trial court conducted a hearing. During that hearing, the following occurred:

“[PROSECUTOR:] ... [A]t the time of the original sentencing, the victim’s representative was present in court.
“It is my understanding that-after the sentence had been handed down, that the victim’s mother left the courtroom, and that’s when this mistake was brought to the court’s attention.
“It was at that time that [the previous prosecutor] asked the court for time to get the victim to come back, and the court was going to correct or modify the sentence. And it is my understanding at that time the court denied that request and went ahead with the modification of the sentence.
“I will show the court some law. First there is a statute [§ ]15 — 23—6Y[, Ala.Code 1975]. I made a copy for defense counsel and a copy for the court. Which says that the victim has a right to be present through — throughout all criminal proceedings pursuant to Section 15-14-50 which is the Crime Victim’s Court Attendance Act.
“I do have the short title of that act for the court which is in 15-14-50. It is just a short title. It is not the entire act.
“Basically what the State of Alabama is requesting that the court do is just void the sentence that the court handed out, and with the victim present, resen-tence the defendant. We think that would be the right thing to do since the 'victim was not here when the modification was done.”

(S.R. 4-5.) After hearing arguments from both sides, the trial court stated:

“THE COURT: Here is what I’m going to do. You know I made the mistake when I did the first sentence, and I think I said 15, 5 and then I said we will just do what — and that was my mistake. And I admit I made that mistake. But I never entered a sentence on the docket and—
“[DEFENSE COUNSEL]: But you did on the record, Judge.
“THE COURT: I know. But what I’m going to do now is I’m going to resentence her. I’m going to do away with both of the other sentences and void those. 20 years split 5 on the Class A. 10 years split 3 on the Class C. $696 in restitution, $50 Crime Victim’s. And I think there is also a recommendation that she go to Life Tech. So — my sentence is to run concurrent. Court costs, $50 Victim’s Compensation and cost and I will note that you reserve that for appeal.”

(S.R. 10.)

Murder is a Class A felony, see § 13A-6-2(e), Ala.Code 1975, and leaving the scene of an accident with injuries is a Class C felony. See § 32-10-6, Ala.Code 1975. Therefore, the appellant’s initial fifteen-year sentence on the reckless murder conviction and ten-year sentence on the leaving the scene conviction were valid sentences. See § 13A-5-6(a)(l) and (a)(3), Ala.Code 1975. Because the appellant’s original sentences did not exceed fifteen years in prison, the maximum period of incarceration the trial court could have imposed on the split portion of her sentences was three years. See § 15-18-8(a)(1), Ala.Code 1975. However, the trial court ordered that the appellant serve five years on the split portion of her sentences. Accordingly, the execution of the appellant’s sentences was improper pursuant to § 15 — 18—8(a)(1), Ala.Code 1975.

“ ‘Once a valid sentence has been entered, it cannot, in the absence of fraud or another compelling reason, be altered anytime thereafter so as to increase the severity of the sentence.’ Ex parte Tice, 475 So.2d 590, 591-92 (Ala.1984). ‘The term “sentence,” of course, assumes a valid statutorily-imposed punishment.’ Johnson v. State, 421 So.2d 1306, 1314 (Ala.Cr.App.1982). A trial court has ‘not only the power but the duty to sentence [a defendant] as required by law.’ Abram v. State, 574 So.2d 986, 988 (Ala.Cr.App.1990) (quoting Johnson v. State, 421 So.2d at 1314). Although the manner in which the trial court ‘split’ the appellant’s original sentence was improper, the sentence itself was valid. Therefore, the trial court did not have the power to increase the appellant’s sentence from eight to ten years’ imprisonment.
“The appellant’s original sentence of eight years’ imprisonment was valid and was not infirm. The error in sentencing only concerned the manner in which the trial court suspended the sentence. That court had ordered an improper execution of a valid sentence. See Ex parte Tice, supra; Thomas v. State, 552 So.2d 875, 876 (Ala.Cr.App.1989), affirmed, 552 So.2d 878 (Ala.1989).”

Wood v. State, 602 So.2d 1195, 1196 (Ala.Crim.App.1992) (footnote omitted).

Because the appellant’s fifteen-year and ten-year sentences were valid, the trial court did not have the authority to modify them. Rather, it had the authority to modify only the execution of the appellant’s sentences. See Wood, supra. Therefore, the trial court erred when it increased the appellant’s sentence on the reckless murder conviction and ordered her to serve a term of twenty years in prison, and the twenty-year sentence it imposed on February 1, 2006, is void.

Immediately after the sentencing hearing, and again at the hearing on February 1, 2006, the trial court modified the minimum period of incarceration on the leaving the scene conviction to three years. The execution of the appellant’s sentence in that case complies with § 15-18-8, Ala. Code 1975. However, it does not appear that the trial court modified the minimum period of confinement on the reckless murder conviction. Therefore, the execution of the appellant’s original fifteen-year sentence on the reckless murder conviction is still improper.

For the above-stated reasons, we remand this case to the trial court with instructions that that court vacate the twenty-year sentence it imposed on the reckless murder conviction on February 1, 2006, and conduct a new sentence hearing with regard to that conviction. During that hearing, the trial court shall reinstate the appellant’s original fifteen-year sentence and set aside the split portion of that sentence. If the trial court determines that a split sentence is still appropriate, the maximum period of incarceration cannot exceed three years. The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 28 days after the release of this opinion. The return to remand shall include a transcript of the new sentencing hearing.

REMANDED WITH INSTRUCTIONS.

McMILLAN, p.j., and COBB, SHAW, and WISE, JJ., concur.

       Note from the reporter of decisions: On December 1, 2006, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: LAGOA, Judge.

text:
    Vanessa Del C. GARCIA, n/k/a Vanessa Del Carmen Acosta, Appellant, v. John Paul GARCIA, Appellee.
    No. 3D06-1063.
    District Court of Appeal of Florida, Third District.
    April 11, 2007.
    Rehearing Denied June 5, 2007.

      Vanessa Del Carmen Garcia n/k/a Vanessa Del Carmen Acosta, in proper person.
    Laurence A. Wanshel, Miami, for appel-lee.
    Before RAMIREZ, SHEPHERD, and LAGOA, JJ.
   LAGOA, Judge.

Appellant, Vanessa Del C. Garcia, the former wife, appeals from a non-final order denying her motion to transfer venue. She also seeks to compel the trial court to hear matters which were referred to the general magistrate. We affirm the trial court’s order denying the motion to transfer of venue and, as to the other issue, we grant mandamus.

I. PROCEDURAL HISTORY

The parties were divorced in Miami-Dade County in 2003. In October, 2004, the former wife moved with the parties’ children to West Palm Beach. Thereafter, in 2005, the former wife filed, in Miami-Dade County, a Petition for Modification of Primary Physical Residence, Parental Responsibility, Visitation and Child Support. The trial court referred the Petition to a general magistrate, who recommended that the Petition be denied. The trial court subsequently entered an order approving and incorporating the general master’s report.

On November 18, 2005, Appellee, the former husband, filed a Verified Petition to Enforce His Visitation and Shared Parental Responsibilities with the Parties’ Minor Children, Petition for Clarification of the Husband’s Visitation Rights and Shared Parental Responsibilities, and to appoint an Appropriate Mental Health Professional. The former husband also filed a Verified Emergency Motion for Visitation and Family Study pending his prior Petition. On March 16, 2006, the trial court entered an order referring the former husband’s Verified Emergency Motion as well as the Verified Petition to the same general magistrate who had heard and recommended denial of the wife’s previous Petition.

On March 22, 2006, the former wife filed an objection to the referral to the general magistrate. The general magistrate, in turn, on March 30, 2006, entered a Report of General Magistrate on Failure to Consent to Magistrate’s Hearing and Notice of Filing in which he returned the matter in the cause to the presiding circuit court judge. However, three days earlier the trial judge entered an Order on Status in which he set aside the former wife’s objection to the general magistrate and ruled that the “[gjeneral Magistrate has continued jurisdiction.”

Additionally, on March 22, 2006, the former wife separately filed a Motion for Change of Location/Venue. In her Motion, the former wife argued that it was no longer convenient for her to litigate the post-dissolution matters in Miami-Dade County, as she had moved West Palm Beach and the travel required to Miami-Dade County would present a financial hardship to her. The trial court denied the motion for change of venue.

II. ANALYSIS

We review a trial court’s determination regarding whether or not to transfer venue for the convenience of the parties under an abuse of discretion standard. Blackhawk Quarry Co. v. Hewitt Contracting Co., 931 So.2d 197, 199 (Fla. 5th DCA 2006); Commodore Realty, Inc. v. Classic Carpet & Tile, Inc., 843 So.2d 359 (Fla. 3d DCA 2003). However, because the Appellant failed to provide this Court with a transcript of the hearing below, the record presented to us is inadequate to demonstrate whether the trial court abused its discretion in denying the motion to transfer venue. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). Accordingly, we are required to affirm the trial court’s order.

The former wife also appeals from the general magistrate’s Report because she misperceives it to be an order denying her objection to the referral. As explained above, the general magistrate’s Report in fact properly returned the matter to the trial court’s jurisdiction. We surmise that the former wife’s confusion stems from the fact that the trial judge set aside her objection to the referral in an Order on Status three days prior to the general magistrate’s action.

To the extent that the former wife seeks relief from the order denying her timely objection to the referral, we treat her request as one for a writ of mandamus. See Christ v. Christ, 939 So.2d 256, 257 (Fla. 1st DCA 2006)(timely objection to a magistrate referral may be raised through a writ of mandamus or a writ of prohibition); Novartis Pharm. Corp. v. Carnoto, 798 So.2d 22, 23 (Fla. 4th DCA 2001)(“Mandamus lies to compel a trial court to resolve issues without a special master when the trial court has referred such issues to resolution by special master without the consent of both sides to a dispute.”); Taylor v. Taylor, 569 So.2d 1389 (Fla. 4th DCA 1990)(treating appeal from order of referral as both a petition for writ of prohibition and mandamus); see also Bathurst v. Turner, 533 So.2d 939 (Fla. 3d DCA 1988).

Florida Family Law Rule 12.490(b) provides in relevant part:

(1) No matter shall be heard by a general magistrate without an appropriate order of reference and the consent to the referral of all parties. Consent, as defined in this rule, to a specific referral, once given, cannot be withdrawn without good cause shown before the hearing on the merits of the matter referred. Consent may be express or may be implied in accordance with the requirements of this rule.

In accordance with the Rule, the trial court’s March 16, 2006 order of referral stated, in part:

A REFERRAL TO A GENERAL MAGISTRATE REQUIRES THE CONSENT OF ALL PARTIES. YOU ARE ENTITLED TO HAVE THIS MATTER HEARD BY A JUDGE. IF YOU DO NOT WANT TO HAVE THIS MATTER HEARD BY THE GENERAL MAGISTRATE, YOU MUST FILE A WRITTEN OBJECTION TO THE REFERRAL WITHIN 10 DAYS OF THE TIME OF SERVICE OF THIS ORDER. IF THE TIME SET FOR THE HEARING IS LESS THAN 10 DAYS AFTER SERVICE OF THIS ORDER, THE OBJECTION MUST BE MADE BEFORE THE HEARING.... FAILURE TO FILE A WRITTEN OBJECTION WITHIN THE APPLICABLE TIME PERIOD IS DEEMED TO BE A CONSENT TO THE REFERRAL.

As the Rule makes clear, a referral to a general magistrate requires the consent of all of the parties. In this case, the Appellant filed her objection to the referral within the time period provided by the Order of Referral, and the general magistrate properly relinquished jurisdiction back to the trial court. Indeed, the general magistrate’s Report specifically determined “that the objection to [the] order of referral ... was a timely objection pursuant to Rule 12.490(b), Florida Family Law Rules of Procedure.” The trial court, however, improperly “set aside” the objection and ordered the general magistrate to retain jurisdiction. Because the former wife properly objected, she was entitled to have the matter heard before a circuit court judge. See Christ, 939 So.2d at 256; Swezy v. Bart-Swezy, 866 So.2d 1248, 1249 (Fla. 4th DCA 2004).

Although the general magistrate correctly returned the matter to the trial court after the former wife filed a timely objection to the referral order, the final act of the trial court was to “set aside” the former wife’s objection. Accordingly, in an abundance of caution, we grant mandamus requiring the trial court to hear and determine the former husband’s Verified Emergency Motion and Verified Petition to Enforce Visitation.

Affirmed. Mandamus granted.

      . We note that the record indicates that the trial court judge who referred the matter to the general magistrate and “set aside” the objection has recused himself from further consideration of the cause.


author: SUAREZ, J.

text:
    Richard GOLDSTEIN and Jeffrey E. Levey, as Co-Personal Representatives of the Estate of A. Glenn Braswell, deceased, v. Renee BRASWELL, Appellee.
    No. 3D05-2070.
    District Court of Appeal of Florida, Third District.
    April 11, 2007.

      Linda L. Carroll, Miami, for appellant.
    Humberto H. Ocariz, for appellee.
    Before FLETCHER, RAMIREZ, and SUAREZ, JJ.
   SUAREZ, J.

A. Glenn Braswell (“former husband”) appeals the entry of the final fourth money judgment in favor of Renee Braswell (“former wife”) and also requests this court to reassign this case to a new trial judge. We affirm the trial court’s final fourth money judgment and deny the former husband’s request to have this matter reassigned.

This appeal is yet another in a long line of appeals arising out of the dissolution of marriage and marital settlement agreement entered into by these two parties over six years ago. There is, therefore, no reason to once again go through the litany of facts of this case.

We first affirm the trial court’s final fourth money judgment. Former husband filed this appeal arguing that the trial court’s delay in signing the judgment after the hearing, coupled with what the former husband contends was the trial court’s intervention on behalf of the former wife at the hearing, requires reversal. We disagree. A delay coupled with “an indication that something is seriously amiss on the merits,” and not a claim of bias, may lead to reversal. See Ascontec Consulting, Inc. v. Young, 714 So.2d 585, 587 (Fla. 3d DCA 1998). For something to be “seriously amiss on the merits” there must be conflict or inconsistencies existing between the trial court’s findings at the time of trial and the ultimate judgment, or some significant findings not supported by the record, along with the delay in the entry of the judgment. Edel v. Walker, 927 So.2d 989, 990-91 (Fla. 5th DCA 2006). A review of the record shows that the trial court did not intervene at the hearing and that there are no inconsistencies or conflict between the trial court’s findings during the hearing in question and the final fourth money judgment entered by the trial court. Therefore, we affirm the trial court’s final fourth money judgment.

Former husband next requests that this court order the case to be “reassigned” to another trial judge claiming the present judge lacked neutrality or impartiality. It would appear that the former husband has brought this request as a motion to “reassign” instead of as a motion to disqualify as former husband has already appealed a motion to disqualify on, basically, the same grounds which were denied. See Braswell v. Braswell, 910 So.2d 271 (Fla. 3d DCA 2005). We deny former husband’s request. We have reviewed the record and do not find any bias or prejudice by the trial judge.

We affirm the trial court’s final fourth money judgment and deny the former husband’s request to have this case reassigned.