text:
    Jamarkus RABB, a minor, by and through his guardian ad litem, J. Glenn COBB v. ESTATE OF Fred Lee HARRIS, deceased; et al.
    1041650.
    Supreme Court of Alabama.
    Sept. 22, 2006.

      J. Glenn Cobb, Jr., Mobile, for appellant.
    Submitted on appellant’s brief only.
   NABERS, Chief Justice.

The lone issue remaining in this probate matter, which began in May 1998, is the amount of the attorney fee that should be awarded to J. Glenn Cobb, guardian ad litem for Jamarkus Rabb, the minor son of Fred Lee Harris, deceased. The probate court (hereinafter referred to as “the trial court”) awarded Cobb attorney fees totaling $4,000 for his work representing Rabb. On appeal, Cobb argues that this amount inadequately compensates him for the work he has done representing Rabb from July 1998, when he was appointed guardian ad litem, until the present. We affirm.

I.

This case began with the death of Fred Lee Harris on May 8, 1998. Harris died intestate and was survived by a wife and 13 children, including Jamarkus Rabb, the only minor among the heirs. On July 30, 1998, J. Glenn Cobb was appointed guardian ad litem for Rabb.

Among the assets held by Harris at his death was a bank account at Gulf Federal Bank containing approximately $34,500 (“the bank account”). The bank account was in both Harris’s and Rabb’s names. On August 19, 2003, the trial court ruled that Rabb was entitled to one-half of the funds in the bank account and that the estate was entitled to the other half. Arguing that he was entitled to the entire sum, Rabb appealed the trial court’s decision to this Court.

On November 15, 2004, this Court remanded the cause to the trial court because no final settlement order had been entered. The trial court took no action on remand, and on December 20, 2004, this Court dismissed Rabb’s appeal as being from a nonfinal judgment. Rabb v. Estate of Harris (No. 1080308).

On March 2, 2005, the trial court entered an order approving final settlement of Harris’s estate. The order again awarded Rabb one-half of the funds in the bank account. The order also awarded Cobb $3,000 for his work as guardian ad litem for Rabb. On March 25, 2005, Rabb filed a postjudgment motion arguing 1) that he was entitled to all of the funds in the bank account and 2) that Cobb was entitled to a larger attorney fee.

The trial court subsequently solicited briefs from the parties on the issue of account ownership. On June 28, 2005, the trial court entered an order purporting to reverse its previous decision and award Rabb the entire contents of the bank account. The order also provided that Cobb had until July 12, 2005, to submit evidence supporting his request for additional compensation and reimbursement of expenses and scheduled a hearing for July 15, 2005, to further consider his request. However, this order was void for lack of jurisdiction because, pursuant to Rule 59.1, Ala. R. Civ. P., Rabb’s postjudgment motion had already been denied by operation of law on June 23, 2005.

On July 25, 2005, Rabb appealed to this Court, repeating the arguments he had made in his postjudgment motion. On October 7, 2005, he filed a motion to remand the case to the trial court. This Court initially denied the motion to remand; however, on December 15, 2005, in response to a motion to reconsider filed jointly by Rabb and Harris’s estate, we remanded the case to the trial court for 60 days. On December 21, 2005, the trial court notified the parties that they had until January 4, 2006, to file additional pleadings. Otherwise, the trial court stated, it would enter an order substantially identical to the June 28, 2005, order that had been untimely.

Rabb was the only party to file an additional pleading in response to the trial court’s order. That pleading was devoted almost exclusively to the issue of Cobb’s attorney fee. On February 7, 2006, the trial court entered its final order. The order awarded Rabb all of the funds in the bank account. In regard to the issue of the attorney fee, the trial court stated, in pertinent part:

“H. As noted in the Court’s March 2, 2005 order, the [guardian ad litem] requested payment for 62.45 hours allegedly expended in 1998, 1999, 2000 and 2001, plus reimbursement of $16.00 of parking expenses. The [guardian ad li-tem] has requested payment of 409.2 hours of time allegedly expended with regard to this matter from January 1, 2002 through January 2[5], 2005 and reimbursement of $323.07 for advanced expenses during said time period. The expenses for the latter time period were for postage, parking and photocopying according to the [guardian ad litem]. No itemization of the actual expenses was furnished to the Court. The [guardian ad litem] stated that his customary hourly rate for work of this nature is $150.00.
“I. The long time practice of this Court, predating the undersigned, is that parking expenses for legal counsel are not allowed. The general practice in the Mobile legal community is that lawyers do not seek reimbursement of ordinary, ‘run of the mill’ postage expenses, if the lawyers are being compensated on an hourly basis for the preparation of the documentation being sent through the postal service.
“J. The long time practice of this Court where the Court is being requested to award or confirm attorney’s fees,

. especially in a contested situation or a situation where substantial fees are being requested, is for legal counsel to maintain written records regarding the time expended on the matter at hand and to furnish said information to the Court. Further, in these instances legal counsel itemizes expenses for the Court. This Court’s long time practice and procedure mirrors the long time practices in the federal and other courts in the Alabama state judicial system in the Mobile area. The [guardian ad litem] has practiced law for many years and should be very familiar with the practices and procedures of the federal and state courts in the Mobile area.

“K. The burden is on legal counsel to furnish to trial courts the information needed for trial courts to make fee determinations. Trial courts should be furnished sufficient information to enable them to make legal determinations that have some factual bases to support the determinations being made.
“L. The Court gave the [guardian ad litem] ample opportunity to address the factors specified in Van Schaack v. ÁmSouth Bank, N.A., 530 So.2d 740 (Ala.1988).
“M. With regard to the time expended by the [guardian ad litem] for the time period of January 1, 2002 through January 25, 2005, the Court has no way of identifying what activities of the [guardian ad litem] should be compensated. It should be noted that during said time period the [guardian ad litem] embarked upon an unsuccessful (and unwarranted) appeal of this Court’s ruling concerning the Bank Account.[]
“N. With regard to the expenses the [guardian ad litem] requested reimbursement that are associated with the time period of January 1, 2002 through January 25, 2005, the Court has no way of knowing what part of said expenses constitute parking expenses (which are not reimbursable as noted above) or properly allowed reimbursement.
“O. Before issuance of the March 2, 2005 order, the Court considered the factors relating to legal counsel compensation specified in Van Schaack, swpra, and concluded that the [guardian ad litem] should be compensated for 30 hours of work on behalf of Rabb and that a reasonable hourly rate to utilize for quantifying the [guardian ad litem’s] compensation was $100.00 per hour. Further, upon consideration of said factors, the Court concluded that the [guardian ad litem] should not be reimbursed for any of the requested expenses.
“P. Since the June 28, 2005 order, the Court has afforded the [guardian ad litem] more than one opportunity to present evidence for the Court to utilize in determining the appropriate fee and reimbursement of expenses this Court should award to the [guardian ad litem]. The Court practically gave the [guardian ad litem] a road map in terms [of] what information the [guardian ad litem] should furnish. The [guardian ad litem] has defiantly refused to do so.
“Q. The [guardian ad litem] apparently contends that all time the [guardian ad litem] has expended should be awarded, using an hourly rate furnished by the [guardian ad litem].
“R. The [guardian ad litem] apparently contends that because the Court has changed its ruling and determined that the [guardian ad litem’s] client is entitled to the Bank Account, the [guardian ad litem] should be awarded all of the fees requested by the [guardian ad litem]. The [guardian ad litem] fails to take into account that the Court changed its ruling based upon legal argument furnished by other legal counsel in other cases and the Court’s additional research on the issue. The change in the ruling was not related to any effort on the part of the [guardian ad litem].
“S. The approximate balance of the Bank Account is $34,500.00.
“T. If the Court awarded the [guardian ad litem] a fee based upon all of the time requested by the [guardian ad li-tem] at the hourly rate suggested by the [guardian ad litem], such fee would be $70,747.50 (471.65 hours x $150.00), plus reimbursement of expenses of $339.07. This would equate to more than twice the amount of Bank Account and would result in Rabb not receiving anything.
“U. The [guardian ad litem’s] compensation request relating to time expended before January 25, 2005 is factually unsupported and untenable.
“V. The [guardian ad litem] has not requested reimbursement of any legal fees or reimbursement of expenses associated with the time period following January 25, 2005. Notwithstanding the [guardian ad litem’s] failure to request compensation relating to his activities on behalf of Rabb since January 25, 2005, the Court is aware of said services because of the appeal to the Alabama Supreme Court and the remand request made to the Alabama Supreme Court.
“W. The Court is of the opinion and therefore concludes that the [guardian ad litem] should be paid $1,000.00 as compensation for services rendered by the [guardian ad litem] from January 25, 2005, to the current time.”

Following the entry of the trial court’s order, the case was returned to this Court, for a review of the attorney-fee award. The parties declined to file any additional briefs; we now consider the matter.

II.

“ ‘The determination of whether an attorney fee is reasonable is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion.’ Ex parte Edwards, 601 So.2d 82, 85 (Ala. 1992). Our deference to the trial court in attorney-fee cases is based upon our recognition that the trial court, which has presided over the entire litigation, has a superior understanding of the factual questions that must be resolved in fee determinations. See Hensley v. Eckerhart, 461 U.S. 424, 437,103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Nevertheless, the trial court’s order regarding an attorney fee must allow for meaningful review by articulating the decisions made, the reasons supporting those decisions, and the performance of the attorney-fee calculation. American Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir.1999); see also Hensley, 461 U.S. at 437,103 S.Ct. 1933.”

City of Birmingham v. Horn, 810 So.2d 667, 681-82 (Ala.2001). Moreover, an applicant for an attorney fee bears the burden of proving entitlement to the fee. Ex parte Edwards, 601 So.2d 82, 85 (Ala. 1992). Thus, we review the trial court’s decision awarding Cobb a total of $4,000 as an attorney fee to determine if in setting the amount of that award the trial court exceeded its discretion.

III.

Cobb states that he worked 471.65 hours on this case, that his hourly rate is $150, and that he had additional expenses of $339.07. Accordingly, he argues that the trial court’s decision awarding him only $3,000 for his work on this case through January 25, 2005, grossly under-compensates him for the work he has done for Rabb since he was appointed guardian ad litem in July 1998. As evidenced by its February 7, 2006, order, the trial court concluded that Cobb had failed to substantiate his request for an attorney fee. Therefore, it performed its own calculation, guided by the factors this Court enumerated in Van Schaack v. AmSouth Bank, N.A., 530 So.2d 740 (Ala.1988), and arrived at the figure of $3,000 for work performed through January 25, 2005, and the $1,000 figure awarded on remand for work performed after that date.

At the trial court level, Cobb supported his request for an attorney fee with two forms, which appear to be local to the Mobile Probate Court. Each form is entitled “Expense Voucher for Guardian Ad Litem, Administrator Ad Litem, or Court Representative” (“expense voucher”). The first expense voucher, which bears a stamp indicating that it was filed January 24, 2002, covers the years 1998, 1999, 2000, and 2001. It is signed by Cobb and states, in pertinent part:

“Number of hours spent in court: 20.50 “Number of hours spent in interviews, telephone calls, preparation of case, review of pleadings and documents: 41.95 “Total number of hours: 62.45 “Miscellaneous expenses: $16.00 “Reason: Parking at $1.00 per hr “Customary hourly rate you charge other clients for similar services: $150.00”

The second expense voucher is substantially identical to the first; however, it covers the period from January 1, 2002, through February 11, 2005. It is also signed by Cobb and is stamped as filed in the trial court on February 11, 2005. It states, in pertinent part:

“Number of hours spent in court: 73 “Number of hours spent in interviews, telephone calls, preparation of case, review of pleadings and documents: 336.2 “Total number of hours: 409.2 “Miscellaneous expenses: $323.07 “Reason: Postage, parking, copies, etc.
“Customary hourly rate you charge other clients for similar services: $150.00”

The expense vouchers appear to be the only materials submitted by Cobb in support of his attorney-fee request. Cobb argues that it is the custom in the Mobile

Probate Court that these completed expense vouchers are all that is required of guardian ad litems to receive an attorney fee. He further claims that that has been the practice since at least the 1950s. Based on this understanding of the process and notwithstanding the trial court’s repeated requests, Cobb refused to itemize the time claimed or to provide further documentation or evidence. Rather, in the final document Cobb submitted to the trial court, made after this Court remanded the case in December 2005, he instead stated:

“Wherefore, the [guardian ad litem] presumes that the Probate Judge will just have to take his word for all that set out herein and all that has been filed and stated earlier in this Court by the [guardian ad litem]. The only proof or ‘documentation’ that this Probate Court seems to demand in its last order will not be produced. If the Court wants that (whatever is meant by ‘that’) it will have to look for some other source than this [guardian ad litem]. Aside from it being a useless act, and impossible to perform, in the opinion of the [guardian ad litem], that would still not satisfy the Court. All that this Court has done, and whatever it now does in this matter and with the individuals involved for so long, is on the shoulders of this Court. The [guardian ad litem] does not condemn the Court now and does not want to speak harshly to it now. The [guardian ad litem] would be wrong in doing that. In the opinion of the [guardian ad litem], all persons involved, in this now 7.42 year matter, will rejoice when it is finally and completely ended and concluded. The [guardian ad litem] does find some remorse in that the ‘Good Old Days,’ of trust and respect, seem to be long gone. That was when a man’s word was his bond and, a statement of fact, from an attorney to a judge, in -writing or by voice, was accepted as true. Apparently, this is not now the rule in this Court. Too bad, the days of respect, trust and honesty have now, seemingly, passed by some folks.”

An applicant for an attorney fee bears the ultimate burden of proving that he or she is entitled to that award. Edwards, 601 So.2d at 85. In this case, Cobb failed to meet that burden. In Horn, we explained the rationale for requiring an attorney to prove that he or she is entitled to an attorney fee:

“Applicants for an attorney fee bear the burden of proving their entitlement to an award and documenting their appropriately expended hours. Edwards, 601 So.2d at 85; see also Hensley [v. Eckerhart], 461 U.S. [424] at 437, 103 S.Ct. 1933 [ (1983) ] (citing the importance of documenting in fee applications the hours expended). ‘The applicant should exercise “billing judgment” with respect to hours worked, and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims.’ Hensley, 461 U.S. at 437, 103 S.Ct. 1933 (citation omitted). As the United States Court of Appeals for the Eleventh Circuit stated in American Civil Liberties Union of Ga. v. Barnes, [168 F.3d 423 (11th Cir.1999) ]:
“ ‘If fee applicants do not exercise billing judgment, courts are obligated to do it for them, to cut the amount of hours for which payment is sought, pruning out those that are “excessive, redundant, or otherwise unnecessary.” Courts are not authorized to be generous with the money of others, and it is as much the duty of courts to see that excessive fees and expenses are not awarded as it is to see that an adequate amount is awarded.’
168 F.3d at 428.”

810 So.2d at 682.

In this case, the expense vouchers Cobb submitted to the trial court indicate that he kept some track of the time he expended on the case. However, if he “maintain[ed] billing time records in a matter that [would] enable a reviewing court to identify distinct claims,” 810 So.2d at 682, he inexplicably refused to share those records with the trial court. Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Accordingly, he has not met his burden of showing that he is entitled to the claimed attorney fee and.we cannot say that the trial court exceeded its discretion by awarding him a lower amount.

IV.

Cobb argues that the attorney fee he was awarded by the trial court for his service as guardian ad litem for Rabb was excessively low. However, because Cobb refused to substantiate his request for an attorney fee with any evidence or documentation, such as itemized billing records, the trial court did not exceed its discretion in relying on its own expertise and judgment to award Cobb a lesser amount. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

SEE, HARWOOD, STUART, and BOLIN, JJ., concur.

      . Rule 59.1, Ala. R. Civ. P., provides that a trial court’s failure to dispose of a post-judgment motion within 90 days of filing “shall constitute a denial of such motion as of the date of the expiration of the [90-day] period.” Rabb's motion was filed March 25, 2005; accordingly, it was denied by operation of law on June 23, 2005, five days before the trial court entered its order purporting to rule on the motion.

      . Elsewhere in the order, the trial court states that it had advised Cobb before he filed the first appeal on Rabb’s behalf that the court’s ruling regarding ownership of the bank account was not final and that Cobb should wait until a final order was issued before filing an appeal.

      . Cobb made his argument before the trial court awarded him an additional $1,000 on remand for services he performed after January 25, 2005.


source: Caselaw Access Project

author:
BRYAN, Judge.
      THOMPSON, Judge,

license: Public Domain

text:
    Billy George FLANAGAN v. ESTATE OF L.J. MACKENTEPE.
    2041050.
    Court of Civil Appeals of Alabama.
    June 2, 2006.
    Certiorari Denied Sept. 15, 2006 Alabama Supreme Court 1051329.
    Seth B. Thompson of Thompson & Thompson, Cullman, for appellant.
    Thomas A. Smith, Jr., of Smith & Smith, LLP, Cullman, for appellee.
   BRYAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(E), Ala. R.App. P.; Blackmon v. Brazil, 895 So.2d 900, 909 (Ala.2004); Bruce v. Cole, 854 So.2d 47, 54 (Ala.2003); Hudman v. Wesson, 792 So.2d 1113, 1115 (Ala.Civ.App.2001); Green v. Dixon, 727 So.2d 781, 783-84 (Ala.1998); Oehmig v. Johnson, 638 So.2d 846 (Ala.1994), overruled on other grounds, Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 764 n. 3 (Ala.2002); Harper v. Smith, 582 So.2d 1089, 1091-92 (Ala.1991).

This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala. Code 1975.

CRAWLEY, P.J., concurs.

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

THOMPSON, J., dissents, with writing, which MURDOCK, J., joins.

THOMPSON, Judge,

dissenting.

I dissent from the no-opinion affirmance of the trial court’s summary judgment in this property dispute because I find that the affidavits submitted by the parties in this case create a genuine issue of material fact regarding Flanagan’s claim that he acquired ownership of a disputed strip of property by virtue of adverse possession. The affidavits create a conflict in the evidence that must be resolved by the fact-finder. Bruce v. Cole, 854 So.2d 47, 54 (Ala.2003).

MURDOCK, J., concurs.


author: PITTMAN, Judge.

text:
    Ex parte Reta S. RICH. (In re Robert P. Bayles v. Reta S. Rich).
    2041109.
    Court of Civil Appeals of Alabama.
    July 21, 2006.
    Certiorari Denied Sept. 15, 2006 Alabama Supreme Court 1051608.
    Dagney Johnson Walker of Crew & Howell, P.C., Birmingham, for petitioner.
    Candice J. Shockley of Holliman & Shockley, Pelham, for respondent.
   PITTMAN, Judge.

This proceeding involves a challenge to the retention of jurisdiction by the Shelby Circuit Court over a domestic-relations action in which the custody of a child is at issue.

The exhibits submitted to this court in this mandamus proceeding indicate the following pertinent facts. Reta S. Rich (“the wife”) and Robert P. Bayles (“the husband”) were married in February 2003. Cheyenne Bayles (“the child”) was born to the wife in 1992. The husband apparently asserts that he “receive[d] the child into his home or otherwise openly [held] out the child as his natural child” so as to give rise to a presumption of paternity (see § 26-17-5(a)(4), Ala.Code 1975).

The wife and the husband separated in November 2004. Later that month, the husband sought and obtained an ex parte “protection from abuse” order from the Shelby Circuit Court (see generally § 30-5-1 et seq., Ala.Code 1975); that order awarded “temporary custody” of the child to the husband and set the matter for a hearing on December 9, 2004, at which time the cause was continued (and the temporary-custody order was left in effect) because the wife did not appear. The husband thereafter filed a complaint in the Shelby Circuit Court seeking a divorce from the wife. In mid-December 2004, the wife filed in a Louisiana district court a complaint seeking protection from alleged domestic abuse; although the Louisiana court initially entered a protection order, that court subsequently dismissed the wife’s action after having been informed of the Shelby Circuit Court’s protection-from-abuse order awarding the husband temporary custody of the child. The Shelby Circuit Court then entered orders in February 2005 and in April 2005 reaffirming its earlier protection-from-abuse order containing the temporary-custody determination; the April 2005 order specifically directed that the earlier order would remain “in full force and effect” pending a hearing (which the Shelby Circuit Court envisioned would occur in June 2005).

In July 2005, the wife filed a domestic-relations action against the husband in the Coushatta Tribal Court (“the tribal court”), a court of general jurisdiction located on Indian lands in Louisiana. The tribal court, upon receipt of the wife’s complaint, entered an order on July 19, 2005, finding that the wife and the child were members of the Coushatta Tribe of Louisiana and purporting to “take jurisdiction over this Tribal matter” and to award custody of the child to the wife; in that order, the tribal court opined that the Shelby Circuit Court’s order awarding temporary custody of the child to the husband had “expired by its own terms.” Counsel for the wife then delivered a copy of the tribal court’s order to the judge of the Shelby Circuit Court who had been assigned to hear the case after the judges who had previously been assigned to the case (and who had entered the pertinent custody orders) had recused themselves. The successor judge then entered a judgment on July 25, 2005, “recogniz[ing]” the tribal court’s order and awarding custody of the child to the wife pending a “final determination” as to custody by the tribal court.

However, within a day after that judgment was entered, the husband filed a motion in the Shelby Circuit Court to vacate that judgment, and he later filed memoranda of law tending to support his contention that the Shelby Circuit Court had continuing primary jurisdiction to adjudicate the issue of custody of the child; the wife filed memoranda of law tending to support the proposition that the tribal court had exclusive jurisdiction. After a hearing, the Shelby Circuit Court entered an order vacating its July 25, 2005, judgment on the basis that it had “improperly applied the law pertaining to tribal jurisdiction over juvenile matters”; the Shelby Circuit Court specifically declined to recognize and give full faith and credit to the tribal court’s orders, opining that the tribal court lacked jurisdiction to decide the domestic-relations issues pending before the Shelby Circuit Court. The wife timely petitioned for a writ of mandamus challenging that order, and this court called for answers to the petition and briefs from the parties.

The wife first argues that the Shelby Circuit Court lacked jurisdiction to vacate its July 25, 2005, judgment purporting to relinquish jurisdiction. However, as this court recently noted in Ex parte C.L.J., 946 So.2d 880, 887 (Ala.Civ.App. 2006), a circuit court’s order that transfers jurisdiction over a child-custody matter to a tribal court constitutes a “final judgment” (citing Wilson v. Wilson, 53 Ala. App. 201, 205, 298 So.2d 622, 625 (Ala.Civ. App.1973)). Just as an order dismissing an action based on the doctrine of forum non conveniens is an appealable final judgment (C.L.J., 946 So.2d at 887 (citing Ex parte Ford Motor Credit Co., 772 So.2d 437, 439 (Ala.2000))), an order dismissing a custody action on the basis that a tribal court has exclusive jurisdiction is also a final judgment. Although a nonfinal order transferring a case from one Alabama circuit court to another Alabama circuit court is reviewable only by a petition for a writ of mandamus after the transferee court has docketed the case (see Ex parte Med-Partners, Inc., 820 So.2d 815, 821 (Ala. 2001)), Rule 59(e), Ala. R. Civ. P., affords limited jurisdiction, as here, to a circuit court allowing that court to alter, amend, or vacate a final judgment of that court terminating all judicial proceedings to be held in the Alabama state court system in a particular case. We thus conclude that MedPartners and Ex parte T.T.W., 899 So.2d 1018 (Ala.Civ.App.2004), which also involved an order transferring a case from one Alabama court to another, are not on point and that the Shelby Circuit Court, as a procedural matter, acted properly.

The wife also contends that exclusive jurisdiction over the parties’ custody dispute was vested in the tribal court. However, under Alabama’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), Ala. Code 1975, § 30-3B-101 et seq., which sets forth the standards under which Alabama courts are to determine whether they may exercise jurisdiction over a child-custody matter involving another “state,” our legislature has specifically excluded child-custody adjudications of Indian courts that fall outside the scope of the federal Indian Child Welfare Act (“the ICWA”), 25 U.S.C. § 1901 et seq., from the scope of judicial proceedings that mandate abstention under Alabama’s UCCJEA (see Ala.Code 1975, § 30-3B-102(15) and § 30-3B-104); indeed, the Alabama Comment to § 30-3B-102 explicitly states that “Alabama has chosen not to apply this act [i.e., the UCCJEA] to tribal adjudications.” Thus, as a matter of state law, the Shelby Circuit Court acted properly in re-taining the jurisdiction it had initially exercised over the issue - of the child’s custody.

Although the wife contends that the Shelby Circuit Court was required to respect the tribal court’s judgment under federal law, she cites no authority in her petition to support her contention other than cases generally recognizing the sovereignty of Indian tribes. If anything, however, federal law supports the Shelby Circuit Court’s retention of jurisdiction rather than its relinquishment of that jurisdiction. As the United States Court of Appeals for the Fourth Circuit recognized in In re Larch, 872 F.2d 66, 69 (4th Cir.1989), the ICWA “does not confer exclusive jurisdiction on either a tribal court or a state court to award custody of children in a divorce proceeding,” ie., “there can be concurrent jurisdiction in state and tribal courts” over child-custody matters incident to a divorce. Moreover, under the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A(g), another federal statute, a court of a state or territory of the United States (such as the tribal court) is not to exercise jurisdiction in a custody proceeding that is “commenced during the pen-dency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of th[at] section to make a custody or visitation determination.” See also Larch, 872 F.2d at 68 (tribal courts should abstain from taking jurisdiction over a custody dispute while another state court has jurisdiction). As we have noted, at the time that the tribal court first purported to assume jurisdiction, the Shelby Circuit Court’s order awarding temporary custody of the child to the husband was still in effect.

Although the Shelby Circuit Court, upon receipt of the tribal court’s July 19, 2005, order, initially wavered in exercising the jurisdiction that it had assumed and entered a judgment under which it would have relinquished jurisdiction, it acted within its discretion, while the cause was still “in the breast of the court” (Birmingham Television Corp. v. DeRamus, 502 So.2d 761, 766 (Ala.Civ.App.1986)), to timely vacate its judgment purporting to relinquish jurisdiction to decide the issue of the child’s custody. Moreover, because the Shelby Circuit Court’s final judgment relinquishing its jurisdiction remained subject to being vacated during the pendency of the husband’s motion to vacate that judgment, the Shelby Circuit Court did not act outside its discretion in determining that the tribal court did not have subject-matter jurisdiction so as to merit the application of comity to the tribal court’s proceedings. See MacLeod v. MacLeod, 448 So.2d 361, 362 (Ala.Civ.App.1983) (emphasizing that comity is not required of state courts and that “[wjhether a court will give comity to a foreign court’s decisions rests in the judicial discretion of the court where enforcement is sought”), and Wilson v. Marchington, 127 F.3d 805, 810 (9th Cir.1997) (indicating that a tribal court’s judgment should not be afforded comity if the tribal court did not have both personal and subject-matter jurisdiction).

For the reasons stated herein, the wife’s petition for a writ of mandamus is denied.

PETITION DENIED.

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

      . Although the tribal court purported to enter a "consent judgment” on August 9, 2005, awarding the wife primary custody of the child, that judgment was entered after the husband had filed a motion in the Shelby Circuit Court to vacate the July 25, 2005, judgment relinquishing jurisdiction, i.e., while the outcome of the Shelby Circuit Court proceedings was still in doubt.

      . For its part, the ICWA specifically does not apply to child placements “based upon ... an award, in a divorce proceeding, of custody to one of the parents” (25 U.S.C. § 1903(1)).


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

text:
    PROGRESSIVE SPECIALTY INSURANCE COMPANY v. UNIVERSITY OF ALABAMA HOSPITAL.
    2041124.
    Court of Civil Appeals of Alabama.
    July 21, 2006.
    Certiorari Denied Sept. 15, 2006 Alabama Supreme Court 1051580.
    R. Larry Bradford and Justin B. Lamb of Bradford & Sears, P.C., Vestavia Hills, for appellant.
    William Kent Upshaw of Comer & Up-shaw, LLP, Birmingham, for appellee.
   CRAWLEY, Presiding Judge.

Progressive Specialty Insurance Company (“Progressive”) issued a policy of automobile insurance to Deborah McFarland; That insurance policy provided “medpay” coverage; the policy limits of the medpay coverage were $2,000. On January 19, 2004, Nick Williams was involved in a single-vehicle automobile accident while driving McFarland’s automobile. Williams was hospitalized at University of Alabama Hospital (“UAB”) between January 20 and January 24, 2004, for treatment of injuries resulting from the January 19, 2004, accident. During Williams’s hospitalization and treatment, he accrued $27,898.57 in hospital charges. Pursuant to Ala.Code 1975, § 35-11-370, UAB filed a notice of hospital lien on January 29, 2004, for the amount of $27,898.57. Progressive paid the $2,000 policy limits for medpay coverage directly to Williams on February 11, 2004, after receiving either constructive or actual notice of UAB’s hospital lien. UAB contended that Progressive had impaired its hospital lien by directly paying the $2,000 in medpay coverage to Williams.

Progressive then filed an action seeking a judgment declaring that the hospital-lien statute applied only to proceeds available to a patient by virtue of a tort action or settlement. Progressive and UAB stipulated to the above-mentioned facts, and the trial court considered legal argument by both parties. The trial court entered a judgment declaring that the hospital-lien statute does apply to moneys due a patient as the result of a contractual undertaking such as a policy of insurance. The court further determined that Progressive had impaired UAB’s lien, and it awarded UAB $27,898.57 and attorney fees in the amount of $4,000. Progressive appeals, arguing that the hospital-lien statute, by its language, applies only to moneys due a patient as a result of the tort liability of a third party and that the trial court erred in awarding UAB attorney fees in the declaratory-judgment action. We affirm.

The hospital-lien statute reads as follows:

“Any person, firm, hospital authority or corporation operating a hospital in this state shall have a lien for all reasonable charges for hospital care, treatment and maintenance of an injured person who entered such hospital within one week after receiving such injuries, upon any and all actions, claims, counterclaims and demands accruing to the person to whom such care, treatment or maintenance was fur-
nished, or accruing to the legal representatives of such person, and upon all judgments, settlements and settlement agreements entered into by virtue thereof on account of injuries giving rise to such actions, claims, counterclaims, demands, judgments, settlements or settlement agreements and which necessitated such hospital care, subject, however, to any attorney’s lien.”

§ 35-11-370 (emphasis added).

Progressive argues that the language used in the hospital-lien statute clearly evinces an intent that the statute be applied only to moneys owed a patient on the basis of tort liability. UAB disagrees, stating that the text of the statute contains no words evincing an intent that the lien attach only to moneys resulting from tort liability to a patient. We are presented, then, with a question of statutory construction.

“ ‘ “In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:
“ ““ ‘Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’ ” ’
“Richardson v. Terry, 893 So.2d 277, 283 (Ala.2004) (quoting DeKalb County LP Gas Co. v. Suburban Gas[ Inc.], 729 So.2d 270, 275-76 (Ala.1998)). ‘ “When ascertaining legislative intent, statutes which are in pari materia ... must be interpreted as a whole in light of the general purpose of the statute.” ’ Ex parte Berryhill, 801 So.2d 7, 10 (Ala. 2001) (quoting Kirkland v. State, 529 So.2d 1036, 1038 (Ala.Crim.App.1988)).”

Blackmon v. Brazil, 895 So.2d 900, 907 (Ala.2004).

Progressive grounds its entire argument on a comparison between the hospital-lien statute and Ala.Code 1975, § 25-5-ll(a), the statute governing reimbursement of the employer out of damages recovered from third parties in the workers’ compensation context. See Bunkley v. Bunkley Air Conditioning, Inc., 688 So.2d 827 (Ala. Civ.App.1996). In Bunkley, this court held, based on a previous case in which our supreme court had construed the predecessor statute to § 25-5-ll(a), that § 25-5-ll(a) allowed a credit to the employer “only against recoveries from the third-party wrongdoer whose tortious act proximately caused the worker’s injury.” Bunkley, 688 So.2d at 830 (relying on State Farm Mut. Auto. Ins. Co. v. Cahoon, 287 Ala. 462, 252 So.2d 619 (1971)). The language of § 25-5-ll(a), however, differs from the language of the hospital-lien statute.

Section 25-5-ll(a) reads, in pertinent part, as follows:

“If the injury or death ... was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer....”

(Emphasis added.) Section 25-5-ll(a) requires that the injury be caused by circumstances that result in legal liability for damages. That is, § 25-5-ll(a) permits an employer to be reimbursed, when recovery is realized, for its payment of workers’ compensation benefits when the employee is injured under circumstances that result in legal liability of a third party for the injury. Bunkley, 688 So.2d at 830. The language in the hospital-lien statute indicates that the lien attaches to “any and all actions, claims, counterclaims and demands” that accrue to the patient. § 35-11-370. The statute does not limit the hospital’s right to assert a lien to only those claims that arise out of legal liability based upon the circumstances surrounding the accident giving rise to the patient’s injuries. Thus, Progressive’s argument that the hospital-hen statute does not apply to moneys available to a patient by virtue of a contractual obligation such as . an insurance policy cannot find support in the construction of language in § 25-5-11(a), which is materially different.

The language in § 35-11-370 indicates that a lien attaches to all actions, claims, counterclaims, and demands that accrue to a patient on account of the injuries for which he or she was treated. Although terms like “actions,” “claims,” and “counterclaims” evoke the legal equivalents of those terms, i.e., a cause of action or a legal claim raised in a complaint, the terms “claim” and “demand” are not limited solely to any peculiarly legal meaning by other wording in the statute. A claim is defined as “a demand for something due or believed to be due <an insurances-.” Merriam-Webster’s Collegiate Dictionary 227 (11th ed.2003). Likewise, a demand is defined as “something claimed as due.” Merriam-Webster’s Collegiate Dictionary 330 (11th ed.2003). We conclude, therefore, that, despite Progressive’s argument to the contrary, the language used in the hospital-lien statute does not confine itself solely to tort claims and does not limit the right of a hospital to assert a lien on moneys realized only from tort settlements or actions.

In addition, our supreme court has at least implicitly held that hospital liens can attach to moneys owed a patient by virtue of a contractual obligation. See Mitchell v. Huntsville Hosp., 598 So.2d 1358 (Ala.1992), and Guin v. Carraway Methodist Med. Ctr., 588 So.2d 1317 (Ala.1991). Although neither Mitchell nor Guin involved the argument made here on appeal, both cases involved a hospital’s right to insurance payments made on behalf of a patient whose hospital bills were unpaid.

In Guin, the case originated as an inter-pleader action when the insurance company sought the court’s aid in determining to whom to pay the hospital accident policy benefits to which the patient was entitled. Guin, 583 So.2d at 1318. After the trial court discharged the insurance company and realigned the parties, the trial court entered a summary judgment awarding the policy benefits to Carraway Methodist Medical Center. Id. The patient’s husband had assigned the policy benefits to Carraway, and the patient and her father argued to the trial court and on appeal that the husband’s assignment of those benefits was invalid. Id. The trial court determined that § 35-11-370 gave Carra-way an automatic lien for the reasonable value of the medical services provided to the patient. Id. at 1319. The supreme court did not discuss the purported assignment of benefits and instead relied solely on § 35-11-370 to affirm the award of the policy benefits to Carraway.

In Mitchell, the controversy involved whether an attorney for a patient was entitled to attorney fees out of the insurance benefits he secured for the patient and for the benefit of the hospital. Mitchell, 598 So.2d at 1359. In its discussion of why the attorney was not entitled to a fee out of the insurance benefits the insurance company had paid directly to the hospital, the supreme court made the following observation:

“A revealing light is cast on this case by considering what would have happened if Connecticut General had done what Mitchell requested it do and what, according to the stipulation of facts, it was contractually obligated to do: send the policy benefits to Mrs. Jeffreys as guardian for Johanna or to Mitchell as Mrs. Jeffreys’ attorney. In that event, if Mitchell had deducted his fee before paying the balance of the proceeds to the Hospital, Mrs. Jeffreys would have still owed the Hospital the difference between the outstanding bill and the amount of that payment. Similarly, if Connecticut General had sent two-thirds of the benefits to the Hospital and one-third of the benefits to Mitchell, the amount due to the Hospital would have been decreased only by the amount it received. In either event, the hospital lien would remain in effect for the balance due. See Ala.Code 1975, § 35 — 11— 370; Guin v. Carraway Methodist Medical Center, 583 So.2d 1317 (Ala.1991).”

Mitchell, 598 So.2d at 1360-61.

Our supreme court “has recognized that the hospital-lien statute is to be construed broadly in order not to defeat a valid hospital claim.” Ex parte University of South Alabama, 761 So.2d 240, 244 (Ala.1999). Thus, based on both the language of the statute and our supreme court’s implicit holdings in Guin and Mitchell, we affirm the trial court’s determination that the hospital-lien statute does apply to moneys due a patient by virtue of a contractual undertaking such as an insurance policy.

Progressive also argues that the trial court improperly awarded UAB attorney fees because, it says, attorney fees are not awardable in a declaratory-judgment action. Progressive relies upon City of Vestavia Hills v. Randle, 292 Ala. 492, 296 So.2d 710 (1974), which did in fact reverse a judgment awarding attorney fees in a declaratory-judgment action. However, the Randle court began its analysis of the attorney-fee issue by stating the general rule that “[a]ttorney’s fees are not allowable unless authorized by statute or contract .... ” Randle, 292 Ala. at 494, 296 So.2d at 711.

In reaching its holding reversing the award of attorney fees, the Randle court quoted from Clark v. Exchange Insurance Association, 276 Ala. 334, 161 So.2d 817 (1964), in which the supreme court rejected the argument that an award of attorney fees was permitted under the section of the declaratory-judgment act providing that “[f]urther relief based on a declaratory judgment or decree may be granted whenever necessary or proper”:

“ ‘As before stated, appellant’s second contention is that the provision in Section 163 of Title 7, Code of Alabama 1940, in our declaratory judgment act, to the effect that, “Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper,” is a statutory authorization for the award of attorney’s fees in declaratory judgment actions.
“ ‘Our act provides that further relief may be granted in declaratory judgment actions “whenever necessary or proper.” This authorizes a court to grant such additional relief as is authorized by law. ... The supplementary relief provision of our act (Section 163, supra) is not authority for the allowance of attorney’s fees in declaratory judgment action.’ ”

Randle, 292 Ala. at 494, 296 So.2d at 711 (quoting Clark, 276 Ala. at 338, 161 So.2d at 820) (emphasis added). Randle is not authority for the proposition that attorney fees are never recoverable in a declaratory-judgment action; instead, Randle simply recognized that the declaratory-judgment act itself contains no provision for an award of attorney fees. Based on the above-quoted language from Clark, Randle recognized that a trial court may award additional relief authorized by law when resolving a declaratory-judgment action.

Although UAB may not have been entitled to attorney fees simply for defending the declaratory-judgment action, the trial court’s conclusion that Progressive impaired UAB’s hospital lien entitled UAB to attorney fees pursuant to Ala.Code 1975, § 35-11-372, which states that a lienholder who prevails in an action alleging an impairment of its lien “shall be entitled to recover from the defendant, costs and reasonable attorney’s fees.” The attorney fees awarded by the trial court were, therefore, “additional relief ... authorized by law.” Thus, we conclude that the award of attorney fees to UAB was proper.

AFFIRMED.

THOMPSON and BRYAN, JJ., concur.

PITTMAN, J., concurs in part and concurs in the result, with writing.

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

PITTMAN, Judge,

concurring in part and concurring in the result.

I concur in the result to affirm, and I concur in that portion of the main opinion addressing the applicability of § 35-11-370, Ala.Code 1975, which imposes a lien upon all “claims ... accruing to the person to whom ... care, treatment, or maintenance was furnished ... on account of injuries giving rise to such ... claims,” to claims that an injured patient may be entitled to assert against an insurer ex con-tractu. Although the parties disputed in the trial court the amount of attorney fees to be awarded to UAB, the issue whether UAB is entitled to an award of attorney fees at all was not raised in the trial court. “This court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.” Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992).

MURDOCK, Judge,

concurring in the result.

Section 25-5-ll(a) applies when the same “circumstances” that “caused” an injury or death “also ereat[e] a legal liability for damages.” In a case such as the one before us, however, more than just the circumstances that caused the injury are necessary to create the legal liability. Specifically, the legal liability in this case also depends for its existence upon the contract between the patient’s insurer and the patient. Thus, while language of the nature found in § 25-5-11(a) would not be broad enough to apply to facts such as those presented here, the broader language utilized in § 35-11-370 is.

      . Judge Pittman, in his opinion concurring in part and concurring in the result, states that Progressive failed to raise this issue in the trial court. However, based on our view of Progressive's “Opposition to [UAB’s] Eviden-tiary Submission in Support of Award of Attorney’s Fees,” in which Progressive stated that "the rate charged is excessive and is not allowed in this declaratory judgment action,” Progressive did raise the issue.

      . Although not relevant in this case, we note that attorney-fee awards are also permitted when justified by special equity. See Lee v. Baldwin County Elec. Membership Corp., 853 So.2d 946, 952 (Ala.2003) (discussing the "common fund” and "common benefit” exceptions to the American rule that each party bears the responsibility of paying its own attorney fees).


author: CRAWLEY, Presiding Judge.

text:
    Dathan BENEFIELD et al. v. Gregory BENEFIELD and Sandra Benefield Nuckolls.
    2050159.
    Court of Civil Appeals of Alabama.
    Sept. 1, 2006.

      Sheila C. Field of Field & Field, L.L.C., Anniston, for appellants.
    Submitted.on appellants’ brief only.
   CRAWLEY, Presiding Judge.

This is an appeal from an action seeking a sale of property and a division of the resulting proceeds; the parties are the heirs of D. Monroe Benefield (“Monroe”) and Arleavy Benefield (“the widow”). Da-than Benefield (“Dathan”) and six other heirs (collectively “the plaintiffs”) sued Gregory Benefield (“Gregory”) and Sandra Benefield Nuckolls, alleging that the ownership of certain real property was held by the parties as tenants in common and requesting a sale of the property and a division of the resulting proceeds among the parties according to their respective interests. Gregory answered, alleging that the plaintiffs did not have any legal interest in the property in question. Additionally, Gregory filed a counterclaim requesting, among other things, that, in the event the trial court found that the plaintiffs did have an interest in the property, the cost of Gregory’s expenditures and improvements to the property be set off against any interest awarded to the plaintiffs. Apparently, Sandra Benefield Nuc-kolls did not file an answer to the complaint. The trial court entered a judgment denying the plaintiffs’ sale-for-division claim, implicitly finding that the plaintiffs had no legal interests in the property; in its judgment, the trial court also denied Gregory’s counterclaim for a set off. The plaintiffs timely appealed to this court, whereupon the appeal was transferred to our supreme court on. the basis that this court lacked subject-matter jurisdiction. The appeal was then transferred back to this court by our supreme court, pursuant to § 12-2-7(6), Ala.Code 1975. We reverse and remand.

I. Factual Background

The relevant facts of this case begin with the death of Monroe on March 15, either in 1947 or 1948. Monroe did not have a will; he was survived by his widow and their four children, Cecil Benefield, Julius Benefield, Miriam Benefield Perry, and Dathan Benefield. In 1973, the widow, individually and as the administratrix of Monroe’s estate, and Cecil, Julius, and Miriam brought a sale-for-division action against Dathan. The trial court in that action entered a judgment entitled a “Decree Confirming Private Sale.” The portion of that judgment relevant to this case is as follows:

“1. The facts contained in the joint petition of the parties to confirm said private sale of the property involved in the cause are true.
“2. That the aforesaid private sale of the following described real property, to-wit:
“The East half of the Southeast quarter (SE 1/4) of Section 15; the West half of the Southwest quarter (SW 1/4) of Section 14; the West half of the Southeast quarter (SE 1/4) of section 14; the Northeast Quarter (NE 1/4) of the Southwest quarter (SW 1/4) of Section 14; all in Township 16, Range 12, containing 280 acres more or less, located in Cleburne County, Alabama,
“to the said Julius C. Benefield, Miriam Benefield Perry and Dathan E. Bene-field for the total purchase price of Forty-two Thousand Two Hundred Eighty and no/100 ($42,280.00) Dollars, be and the same is hereby confirmed by the Court.
“3. The Register of this Court shall execute and deliver a Deed to the said Julius C. Benefield, Miriam Benefield Perry and Dathan E. Benefield, conveying to them all of the rights, title and interest of all of the parties to this cause in and to said property as hereinabove described.
“4. The following property, to-wit: “The Southeast quarter (SE 1/4) of the Southwest quarter (SW 1/4) of Section 14, Township 16, Range 12, in Cleburne County, Alabama,[] “is hereby set aside to [the widow] as her homestead under the exemption laws of the State of Alabama.
“5. That from the total amount of $17,032.24 paid into Court by the said Julius C. Benefield, Miriam Benefield Perry and Dathan E. Benefield, [three of the children] the Register of this Court shall make disbursement to the persons named below as follows:
“C. Dower interest of [the widow] $5,063.00.
“6. The balance of the purchase price paid into Court after allowing the purchasers credit for their respective shares therein amounted to the sum of $17,032.24. After payment of the above referenced costs, there remains for distribution to the parties the sum of $8,429.44. The register shall, therefore, distribute the remaining sum of $8,429.44 to the following parties:
“Cecil M. Benefield [the remaining child] — $8,429.44.
“DONE and ORDERED this 1st day of June, 1978.”

In 1988 the widow conveyed her interest in the property set aside in the 1973 action as her homestead (“the homestead property”) to Julius Benefield. That conveyance purported to convey to Julius a fee simple, and it warranted that the widow was “lawfully seized in fee of the said premises.” In 1996 Julius died; Julius’s will purported to convey a fee-simple interest in the homestead property to his son, Gregory Benefield. In 1998 the widow died, and Dathan contested her will. According to Dathan’s testimony during the trial of this case, he alleged in the will contest that he and the widow’s other heirs were the owners of the homestead property. During that will contest, Gregory argued that he was the sole owner of the homestead property. The record is not clear as to the outcome of the will-contest action; however, it appears that the validity of the widow’s will was upheld. Regardless of whether the widow’s will was valid, there is no assertion by the parties to this case that the underlying issue regarding the widow’s interest in the homestead property was resolved at that time.

Ultimately, in 2002 the plaintiffs filed their complaint in this action seeking a sale for division of the homestead property. Gregory filed an answer stating that he owned the homestead property in fee simple; alternatively, as a counterclaim, Gregory asserted that if the trial court found that he did not have a fee-simple interest in the homestead property that he should be entitled to a credit for the various improvements he had made to the property.

The trial court heard ore tenus testimony and received documentary evidence into the record. Particularly relevant to this case is the judgment in the 1973 action. Gregory argued that, because the judgment in the 1973 action ordered that the widow was to have certain property set aside for her as her homestead, according to the Code in existence at that time, that judgment awarded her a fee-simple interest in the homestead property, which she properly conveyed by deed to her son Julius, who then properly conveyed the homestead property by will to his son (the widow’s grandson), Gregory. The plaintiffs argued that a homestead interest is for the life of the person possessing that interest and that the widow could not have transferred a fee-simple interest in the homestead property. Thus, the plaintiffs claimed, as heirs of the widow they possessed a legal interest in the homestead property and, they argued, the sale-for-division action should proceed.

The trial court did not make written findings of fact, but it entered a judgment against the plaintiffs on their sale-for-division claim. The trial court also entered a judgment against Gregory on his counterclaim seeking a setoff for the value of his expenditures on the homestead property.

II. Discussion

On appeal, the plaintiffs continue to argue that Gregory did not have fee-simple title to the homestead property. The reason for this, the plaintiffs claim, is that the widow held only a life estate in the homestead property. Thus, the plaintiffs argue, the widow’s conveyance of her interest in the homestead property to her son Julius during her lifetime could have been effective only for the remainder of her life. Additionally, the plaintiffs argue, Julius’s conveyance of his interest in the homestead property to his son Gregory by will was also effective only for, at most, the remainder, of the widow’s life. When the widow died in 1998, the plaintiffs argue, title to the homestead property vested in the heirs of Monroe. According to the plaintiffs, a sale for division of the homestead property is proper because, they argue, the parties are tenants in common and Gregory does not have fee-simple title to the property.

Although he did not submit a brief to this court, Gregory argued to the trial court that he in fact did have proper title to the homestead property and asserted in his counterclaim that, in the event the trial court found he did not have proper title, he was entitled to set off from any award to the plaintiffs the cost of improvements and expenditures he made on the homestead property.

In this case, the trial court received evidence ore tenus, but it made no specific findings of fact. Because the trial judge made no specific findings of fact, we will assume that the trial judge made those findings necessary to support the judgment. Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992). Under the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support its judgment carry a presumption of correctness, and the judgment will not be reversed unless found to be plainly and palpably wrong. Id. Furthermore, “ ‘[t]he trial court’s judgment in such a case will be affirmed, if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.’ ” Id. (quoting Clark v. Albertville Nursing Home, Inc., 545 So.2d 9, 13 (Ala.1989)).

Although Gregory testified that he had a fee-simple interest in the homestead property, his testimony was in the nature of a legal conclusion and we owe it no deference. See Ex parte Dial, 387 So.2d 879, 880 (Ala.1980) (stating that it has long been the law that a witness may not give his opinion on a question of law or upon matters that involve questions of law because conclusions of law are exclusively for the courts to make). The determinative factors in this case are the documents themselves, specifically the judgment in the 1973 action.

“A ‘homestead’ is generally defined as the home or house where a family resides, where the head of the family dwells, and any adjoining or appurtenant land used for the family’s comfort and sustenance. Skipworth v. Skipworth, 383 So.2d 524 (Ala.1980); Gardner v. Roberts, 565 So.2d 638 (Ala.Civ. App.1990). The purpose of the homestead exemption is, within certain limitations, to protect and secure a home for one’s family, regardless of financial circumstances. First Alabama Bank of Dothan v. Renfro, 452 So.2d 464 (Ala.1984). To qualify for the protection afforded by Alabama’s homestead exemption, one must be a ‘resident’ and must, in fact, occupy a ‘home’ in the state of Alabama.”

Sims v. Cox, 611 So.2d 339, 340 (Ala.1992). In this case it is not disputed that the widow qualified for the protection of Alabama’s homestead exemption. What is disputed is whether the homestead interest she acquired in the property was for her life only or was in fee simple.

Courts apply the homestead law in Alabama as it existed at the time of the decedent’s death. E.g., Rodgers v. Bradley, 533 So.2d 546, 548 (Ala.1988); see also Hicks v. Huggins, 405 So.2d 1324, 1326-27 (Ala.Civ.App.1981) (stating that the homestead law to be applied was the law in effect at the time of the decedent’s death in 1946, despite the fact that the decedent’s widow did not seek to have the homestead set aside for her until 1979).

In this case, the relevant statutes at the time of Monroe’s death were codified as Title 7, § 661, § 663, and § 697, Ala.Code 1940. Section 661 provided:

“The homestead of any resident of this state, leaving surviving him at his death a widow and minor child or children, or either, with the improvements and appurtenances not exceeding in value two thousand dollars, and in area one hundred and sixty acres, shall be exempt from administration and the payment of the debts in favor of such widow and minor children, or either, in any event, during the life of the widow, or the minority of the child or children, whichever may last terminate; and the rents and profits of such homestead, if there be a widow and no minor child, shall inure to her benefit during her life; or if there be a minor child or children, and no widow, then to the benefit of such child, or children, during minority; or if there be both widow and minor child or children, then to their equal benefit during the life of the widow and the minority of the child or children. Such homestead may be retained by the widow or minor child or children, until it is ascertained whether the estate is solvent or insolvent; and if the estate is insolvent, it shall vest in them absolutely, and it shall not be sold or partitioned by order of any court until the death of the widow and the youngest child is of age, except by the order of the circuit court in equity, for reinvestment, with the consent of the widow, in writing, if living.”

(Emphasis added.) Section 663 provided:

“When the homestead set apart to the widow and minor child or children, or either, constitutes all the real estate owned in this state by the decedent at the time of his death, the title of such homestead vests absolutely in them, whether there be administration on the estate of the decedent or not; but the title to the homestead shall not vest absolutely in them as against the other heirs of decedent until it is so set apart and until it is judicially determined that it is all the real estate owned by the decedent, and that it is not of greater value than two thousand dollars; but as against the creditors of decedent, the title of the homestead will be presumed to be absolute until it is judicially determined that it is not all of the real estate left by decedent, and that it is of greater value than two thousand dollars, and the homestead secured hereby shall be held and governed as in section 661 of this title.”

Section 697 provided in March of 1947 as follows:

“If no exceptions are filed and sustained to such report of the commissioners setting apart exemptions, and it is determined that the property set apart was all the property left by decedent, and that he left less property than was exempt to the widow and minors, the title to the property so set aside, whether real or personal, vests absolutely in the widow and minor child or children, or either, as the case may be, share and share alike, and shall be held and governed by section 661 of this title; but if it be determined by the court that the decedent owned and left at his death more property than was thus set aside, or more than was exempt by law to the widow and minors, the title to the property shall vest in the widow and minors, share and share alike, but only during the life of the widow and the minority of the children.”

(Emphasis added.)

We note that “[generally, a homestead is a life estate in the widow.” Taylor v. Russell, 369 So.2d 537, 541 (Ala.l979)(citing Bryant v. Perryman, 213 Ala. 561,105 So. 561 (1925)).

Title 7, § 663, Ala.Code 1940, provided, in part, that the title to the homestead shall not vest absolutely in the widow and her children as against the other heirs of decedent “until it is so set apart and until it is judicially determined that it is all the real estate owned by the decedent, and that it is not of greater value than two thousand dollars.” Title 7, § 697, Ala.Code 1940, provided, in part, that if it is “determined by the court that the decedent owned and left at his death more property than was thus set aside, or more than was exempt by law to the yúdow and minors, the title to the property shall vest in the widow and minors, share and share alike, but only during the life of the widow and the minority of the children.” In this case, Monroe owned more property than that which was set aside as the widow’s homestead. The judgment in the 1973 action, by granting Julius Benefield, Miriam Benefield Perry, and Dathan an interest in 280 acres that was separate from the property set aside as the widow’s homestead, indicates that the property the widow received was certainly not all of the property owned by Monroe at his death. The statutes quoted above provide that in this case the widow acquired a life estate in the homestead property. The plain language of the statutes mandate this result.

The trial court in the 1973 action would have applied the same principles as we do in the present case, given that the widow’s homestead rights were established by the law existing at the time of Monroe’s death. Our conclusion that the judgment in the 1973 action granted the widow a life estate in the homestead property is supported by our supreme court’s holding in Walker v. Hayes, 248 Ala. 492, 28 So.2d 413 (1946). The Walker court noted the plain language of the homestead statutes and then observed that “the general trend of legislative intention [has been] to vest the fee in the widow and minor child or children as the case might be, only after the report of the commissioners has been made as required by the statute, and also only after there has been certain judicial determination.” 248 Ala. at 495, 28 So.2d at 416. In this case, the record does not disclose that there has been a judicial determination regarding the homestead property to meet the statutory requirements necessary for the widow to have been granted a fee simple in the homestead property. In fact, the record demonstrates that such a judicial determination could not have been made because the homestead property was not all the property Monroe owned at the time of his death.

In Bishop v. Johnson, 242 Ala. 551, 556, 7 So.2d 281, 284 (1942), our supreme court held that,

“unless title to the homestead is vested absolutely in the widow and minor child or children, they have only the right of occupancy until set apart to them as provided by the statute of force at the time of the death of the husband and father. The extent of such right of occupancy by the widow exists during her life and the minority of children. And if the widow undertakes to sell her life estate, even though the same be by a warranty deed, she conveys only her life estate and not the fee (Code 1923, § 6925, Code 1907, § 3420, Code 1940, Tit. 47, § 153), and such act does not affect the rights of minor children or heirs at law.”

Consequently, the purported conveyance of the homestead property in fee simple by the widow to her son Julius was ineffective; she conveyed only her life estate. Furthermore, Julius’s purported conveyance of the homestead property by will to his son Gregory conveyed only the widow’s life estate. Bonner v. Pugh, 376 So.2d 1354, 1357 (Ala.l979)(noting that when a person who has only an estate for life purports to transfer an estate greater than the estate for life, his or her conveyee acquires thereby, as against the owner of a future interest in such land, no right, privilege, power, or immunity greater than those possessed by the conveyer). Finally, when the widow died in 1998, Monroe’s heirs acquired a present interest in the homestead property and, therefore, properly could bring an action for a sale for division.

III. Conclusion

The property interest set aside as homestead for the widow in the judgment in the 1973 action was not all the property held by Monroe at the time of his death; therefore the widow obtained only a life estate in the homestead property. As a consequence, the conveyances of that property, first by the widow to her son Julius, and then by Julius to his son Gregory, conveyed only a life estate in the property. Therefore, Gregory presently holds only the interest that he would inherit following his father’s death, and the sale-for-division action brought by the plaintiffs may proceed.

REVERSED AND REMANDED.

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

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

      . In addition to Dathan, the plaintiffs are Jackie Benefield, Miriam Benefield Periy, Linda Benefield Miller, Steve Benefield, Judy Benefield Maxwell, and James M. ("Mike”) Benefield. Mike Benefield was originally named as a defendant, but he was realigned as a plaintiff.

      . By finding against the plaintiffs on their sale-for-division claim, the trial court effectively rendered Gregory’s counterclaim moot.

      . Whether Monroe died in 1947 or 1948 does not affect the resolution of this case because no relevant change in the applicable statutes occurred during that time.

      . This is separate property from that which was ordered deeded to the children,

      . Specifically, the heirs of the widow include her living children, Dathan Benefield, and Miriam Benefield Perry; the heirs of her deceased child Julius C. Benefield, including Jackie Benefield, Judy Benefield Maxwell, Gregory Benefield, and Sandra Benefield Nuckolls; and the heirs of her deceased child Cecil Benefield, Linda Benefield Miller, Steve Benefield, and Mike Benefield.

      . On July 29, 1947, Title 7, § 697, Ala.Code 1940, was amended to no longer apply to personal property; however in all other respects this section remained the same.


author: BASCHAB, Judge.

text:
    STATE of Alabama v. Robert Darien DAVIS.
    CR-05-0985.
    Court of Criminal Appeals of Alabama.
    June 30, 2006.
    Rehearing Denied Aug. 11, 2006.
    Certiorari Denied Sept. 15, 2006 Alabama Supreme Court 1051637.

      Troy King, atty. gen., and Robin Blevins Scales, asst. atty. gen., for appellant.
    Raymond E. Johnson, Montgomery, for appellee.
   BASCHAB, Judge.

The State appeals from the trial court’s order suppressing evidence law enforcement officers seized during an encounter with the appellee, Robert Darien Davis. The appellee filed a pretrial motion to suppress cocaine and marijuana law enforcement officers seized on the evening of March 6, 2005. After conducting a hearing, the trial court granted the appellee’s suppression motion. This appeal followed.

Lieutenant Dale O’Banion of the Montgomery Police Department testified that, on the evening of March 6, 2005, he responded to a shooting at Tulane Court; that, when he arrived, there were about 200 people in the area; that, while he was standing in the road trying to get information from his supervisors, Chief Art Baylor arrived on the scene; that the appellee was walking across the street and away from the crime scene with a beer can in his hand; and that Baylor told him to stop the appellee. He also testified that holding an open beer can was a violation of the open container law set forth in Municipal Ordinance Number 2000-670 and was a citable offense; that he walked toward the appel-lee; and that the appellee saw him, reached into his right front pants pocket, removed an object, and handed the object to Leslie Moore. O’Banion testified that Moore took the object in his right hand and placed it in his right front pants pocket; that, because the appellee was walking away from the crime and because he had not seen a weapon, he stopped Moore and put him against the wall; that, when he asked Moore what he had in his pocket, Moore said, “ ‘It ain’t mine’ ”; and that he reached into Moore’s pocket and pulled out a golf-ball sized clear plastic bag that contained a white powdery substance that he believed to be powder cocaine. (R. 14.) Finally, he testified that, at that time, the appellee was standing to his right and was pouring the contents of the beer can on the ground; that he told some other officers to take the appellee into custody; and that Officer S.R. Cooper took the appellee into custody.

Officer S.R. Cooper of the Montgomery Police Department testified that, on March 6, 2005, he responded to the scene of a shooting; that, while he was at the scene, O’Banion told him to arrest the appellee; that O’Banion told him that the appellee was being arrested for possession of cocaine; that, when he arrested the appellee, he asked the appellee if he had any knives or anything that would harm him when he searched him; that, at that time, the ap-pellee told him that he had marijuana in his right front pocket; and that he retrieved the marijuana.

Sarah Wyatt testified that she was the appellee’s girlfriend; that, on the evening of the shooting, the appellee had been barbecuing; that she had put meat seasoning she had prepared in a beer can; that the appellee had had that beer can; and that the can did not contain any alcoholic beverages. She also testified that, after she learned about the shooting, she ran across the street; that she was not with the appellee when law enforcement officers arrived; that she did not see the appellee before he was arrested; and that she did not know what the appellee had in his hand at that time. Finally, Wyatt testified that the appellee told her that he had dropped the beer can and a fork when law enforcement officers told him to stop.

The State argues that the trial court erroneously granted the appellee’s motion to suppress. During the hearing on the motion to suppress, the appellee argued that the officers arrested him for violating the open container law; that the officers did not have probable cause to arrest him because they could not determine whether the beer can actually contained beer; that he was not actually charged with violating the open container law; and that, therefore, the seizure of the cocaine and the marijuana was improper. At the conclusion of the hearing, the trial court stated that it would take the motion to suppress under advisement. Subsequently, it made the following entry on the case action summary sheet: “Suppression Motion Granted.” (C.R.2.)

In State v. Hill, 690 So.2d 1201, 1203-04 (Ala.1996), the supreme court stated the following with regard to standards of review to be applied when reviewing a trial court’s ruling on a motion to suppress:

“As a preliminary matter, we note that there has been some debate regarding the applicable standard of appellate review. In its unpublished memorandum, the Court of Criminal Appeals showed great deference to the trial court’s decision to suppress the evidence of the cocaine and marijuana. It stated:
“ ‘[A] trial court’s ruling on a motion to suppress will not be disturbed unless it is “palpably contrary to the weight of the evidence.” Patterson v. State, 659 So.2d 1014 (Ala.Cr.App.1995). The trial court is in a far better [sic] than this court to rule on the merits of a motion to suppress. Sullivan v. State, 23 AlaApp. 464,127 So. 256 (1930). The trial court’s ruling [on] the motion to suppress was not palpably wrong.’
“The State contends that the deference of the Court of Criminal Appeals to the judgment of the trial court was unwarranted. It claims that an appellate court should review de novo the trial court’s finding that ‘reasonable suspicion’ was lacking, because the facts in the case are not in dispute. We agree.
“The trial judge made his ruling following a hearing at which he heard oral testimony only from Officer Bailey. We stated in Ex parte Agee, 669 So.2d 102 (Ala.1995):
“ ‘Where evidence is presented to the trial court ore terms in a nonjury case, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Odom v. Hull, 658 So.2d 442 (Ala.1995). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment. Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So.2d 415 (Ala.1994).’
669 So.2d at 104. ‘Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to those facts.’ Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980) (citations omitted). The trial judge’s ruling in this case was based upon his interpretation of the term ‘reasonable suspicion’ as applied to an undisputed set of facts; the proper interpretation is a question of law.
“Hill counters with the argument that some facts are disputed, and he argues that the judge’s assessment of credibility was a key factor in his decision to suppress. It is true that, absent clear error, the trial court’s credibility choices on issues of fact at suppression hearings are binding on this Court. Powell v. State, 624 So.2d 220 (Ala.Cr.App.1998). However, Hill has not indicated what facts are in dispute. He presented no evidence at the hearing, and there was no evidence that conflicts with or tends to undermine the testimony given by Bailey. Hill also adopted the statement of facts as set out in the State’s brief, under Rule 39(k), Ala. R.App. P., adding only that the car was actually owned by Hill’s brother and that when it appeared that Heard might attempt to flee Bailey told Heard that he had a police dog in his vehicle, although Bailey had no such dog. But these two facts are not relevant to the question whether the officer had a ‘reasonable suspicion’ at the time he stopped the car. Thus, we review de novo the trial court’s ruling on the issue and the judgment of the Court of Criminal Appeals. Ex parte Agee, supra.

(Emphasis added.)

The only ground the defense asserted during the hearing on the motion to suppress was its contention that the marijuana and cocaine should be suppressed because all of the evidence was seized as a result of an improper arrest. Initially, we note that the officers recovered the cocaine during a search of Leslie Moore, not the appellee. Also, the record indicates that officers detained and searched Moore before the appellee was stopped or arrested. Finally, the appellee did not attempt to challenge the detention or search of Moore. Accordingly, the trial court’s decision to grant the appellee’s motion to suppress as to the cocaine was clearly erroneous.

With regard to the marijuana, the appellee contended that the seizure of the marijuana was the fruit of an improper arrest. However, he based his argument on his assertion that he had been arrested for violating the open container ordinance; that that arrest was improper because the officers could not determine that the beer can actually contained beer; and that he was not actually cited for violating the ordinance. However, Cooper testified that O’Banion told him that the appellee was being arrested for possessing cocaine. Further, the defense did not present any conflicting evidence regarding the basis for his arrest and did not challenge the validity of his arrest for possession of cocaine. Because the undisputed testimony during the suppression hearing indicated that the appellee was arrested for possessing cocaine rather than for violating the open container ordinance, the appellee’s argument in support of his motion to suppress was obviously without merit. Accordingly, the trial court’s decision to grant the ap-pellee’s motion to suppress as to the marijuana was also clearly erroneous.

For the above-stated reasons, the trial court erred when it granted the appellee’s motion to suppress the cocaine and marijuana law enforcement officers seized from Moore and the appellee. Accordingly, we reverse the trial court’s judgment and remand this case to that court for proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

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

      . The appellee was charged with one count of unlawful possession of a controlled substance and one count of second-degree unlawful possession of marijuana.

      . In his brief to this court, the appellee argues that "the State waived its right to object to the suppression of the evidence when they did not properly proceed by presenting evidence to justify the search." (Appellee's brief at p. 9.) However, the State did present evidence to support the validity of the seizure of the evidence and presented arguments against the granting of the motion to suppress. Therefore, the appellee’s argument is without merit.


author: COBB, Judge.

text:
    Stephone TAYLOR v. STATE of Alabama.
    CR-05-1132.
    Court of Criminal Appeals of Alabama.
    Aug. 11, 2006.
    Rehearing Denied Sept. 22, 2006.
    Stephone D. Taylor, pro se.
    Troy King, atty. gen., and Cecil G. Bren-dle, Jr., asst. atty. gen., for appellee.
   COBB, Judge.

Stephone Taylor appeals the Montgomery Circuit Court’s denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P. The petition sought relief from his August 1998 conviction, entered pursuant to a plea of guilt, for second-degree robbery, for which he was sentenced to life imprisonment. No direct appeal was taken, but Taylor did file a Rule 32 petition for postconviction relief in 1999; the trial court denied Taylor’s petition, and this Court affirmed its denial in an unpublished memorandum. Taylor v. State (No. CR-98-2287), 796 So.2d 460 (Ala.Crim.App.1999) (table).

Taylor filed the instant Rule 32 petition on August 22, 2005, alleging (1) that the trial court was without jurisdiction to render judgment and to impose the sentence and (2) that newly discovered material facts existed. Specifically, Taylor argued that the trial court lacked jurisdiction because, he says, the indictment was defective in that it did not recite that another person was present during the robbery and aided in the robbery. On January 31, 2006, the trial court denied Taylor’s petition. Taylor appealed.

Taylor argues that the trial court did not have subject-matter jurisdiction to render judgment and to impose a sentence because the indictment failed to allege an essential element of the charged offense and was, he argues, therefore defective. The indictment charging Taylor reads:

“The Grand Jury of said County charge that, before the finding of this indictment,
STEPHONE D. TAYLOR, alias, STEPHONE TAYLOR, alias,
D. TAYLOR, alias,
RUDDY TAYLOR, alias, STEPHONE TAYLOR, alias,
S.D. TAYLOR, alias,
DATKOTA TAYLOR, alias, STEPHONE- DATKOTA TAYLOR,
whose name is otherwise unknown to the Grand Jury, did, in the course of committing a theft of wallet and/or lawful currency and/or coinage of the United States of America, of the value of $20.00, a better description of which is unknown to the Grand Jury, use force against the person of the owner or any person present, Miles Smith, with intent to overcome his physical resistance or physical power of resistance, or threaten the imminent use of force against the person of the owner or any person present, Miles Smith, with intent to compel acquiescence to the taking of or escaping with the property, while the said Stephone Taylor was armed with a deadly weapon or dangerous instrument, a gun, a better description of which is unknown to the Grand Jury, in violation of Section 13A-8-41 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

(C. 17.) Although the indictment charged Taylor with first-degree robbery, he pleaded guilty to second-degree robbery, a lesser-included offense to the charged offense of first-degree robbery. Typically, an indictment need not specifically charge the lesser-included offense. Ex parte Peterson, 890 So.2d 990 (Ala.2004). Rule 13.2(c), Ala. R.Crim. P., states: “Specification of an offense in an indictment or information shall constitute a charge of that offense and of all lesser included offenses necessarily included therein.”

Until recently, a trial court lacked subject-matter jurisdiction to adjudicate a defendant guilty of a lesser-included offense based on an amended indictment if the original indictment charging the offense omitted an element of the lesser-included offense. Ex parte Cole, 842 So.2d 605 (Ala.2002). However, on June 30, 2006, the Alabama Supreme Court decided the matter of Ex parte Seymour, 946 So.2d 536 (Ala.2006). In Seymour, the Supreme Court overruled Ex parte Lewis, 811 So.2d 485 (Ala.2001), Ash v. State, 843 So.2d 213 (Ala.2002), “and other Alabama cases [that] have held to the contrary.” Seymour, 946 So.2d at 539. In doing so, the Court opined:

“The validity of Seymour’s indictment is irrelevant to whether the circuit court had jurisdiction over the subject matter of this case. A defect in an indictment may be error, see Rule 15.2(d), Ala. R.Crim. P. — or even constitutional error, see Ala. Const., Art. I, § 8 — but the defect does not divest the circuit court of the power to try the case. A defendant who challenges a defective indictment is thus subject to the same preclusive bars as one who challenges any other nonju-risdictional error, such as illegal seizure or a violation of the Confrontation Clause.”

946 So.2d at 539. Although the Supreme Court did not specifically list Ex parte Cole, supra, as one of the cases it was overruling in Seymour, it also overruled “other Alabama cases [that] have held to the contrary.” 946 So.2d at 539. Therefore, we read Seymour to overrule Ex parte Cole.

Taylor’s sole argument on appeal is that the indictment is defective for failing to include an element of the lesser-included offense to which he pleaded guilty. He further argues that the defect divests the trial court of subject-matter jurisdiction. However, the Supreme Court held in Ex parte Seymour “that a circuit court has subject-matter jurisdiction over a felony prosecution, even if that prosecution is based on a defective indictment.” 946 So.2d at 539. Taylor is therefore not entitled to any relief.

For the foregoing reasons, the Montgomery Circuit Court properly dismissed Taylor’s Rule 32 petition.

AFFIRMED.

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

      . Taylor did not argue the existence of newly discovered material facts in his brief to this court; thus, that issue is deemed abandoned, and we will not address it.

      . Ash held that "[a] valid indictment is the source of the subject matter jurisdiction to try a contested criminal case.” Ash, 843 So.2d at 216. Lewis held that ''[failure to allege an essential element of the charged offense is a jurisdictional defect....” Ex parte Lewis, 811 So.2d at 487.


text:
    Larry James LAWRENCE v. STATE of Alabama.
    CR-05-0068.
    Court of Criminal Appeals of Alabama.
    Sept. 29, 2006.

      Larry James Lawrence, pro se.
    Troy King, atty. gen., and James B. Prude, asst. atty. gen., for appellee.
   COBB, Judge.

Larry James Lawrence appeals the Jefferson Circuit Court’s summary denial of his Rule 32, Ala. R.Crim. P., petition for postconviction relief, in which he attacked his February 24, 2005, conviction for second-degree theft of property and his resulting sentence of 15 years’ imprisonment.

Lawrence was indicted as follows:

“James Lawrence ... after having been previously convicted of Theft in the 2nd degree, did knowingly obtain or exert unauthorized control over one pocket knife of the value of $29.99; two multi-tools of the aggregate value of $119.98; one pocket knife of the value of $44.99; two archery/bow site of the aggregate value of $65.98; and four archery/bow site of the aggregate value of $184.00, the property of ACADEMY SPORTS AND OUTDOORS, INC., A CORPORATION with the intent to deprive the owner of said property, in violation of Section 13A-8-4 of the Alabama Criminal Code, against the peace and dignity of the State of Alabama.”

(C. 26) (capitalization in original).

Lawrence entered a guilty plea to the above charge and did not appeal his conviction or sentence. On August 8, 2005, he filed the instant petition. In his petition, Lawrence presented the following claims:

“(1) Petitioner’s conviction and sentence was unauthorized by law because the element of the prior felony, i.e., the element providing the enhancement on his conviction from theft in the third degree to theft in the second degree, was not certified and proven to the finder of fact as required by Apprendi v. New Jersey, 530 U.S. 466 (2000).[] Thus, petitioner should have been convicted and sentenced for the misdemeanor of theft of property in the third degree as defined in § 13A-8-5, Ala.Code 1975, instead of the Class C felony of theft in the second degree as defined in § 13A-8-4(g), Ala. Code 1975.
“(2) Petitioner’s trial counsel was ineffective for failing to object to the illegal enhancement of his conviction and sentence as set forth in issue (1).
“(3) Petitioner claims that the trial court was without jurisdiction to render judgment and impose sentence because it used the same prior conviction to enhance the charge from a misdemeanor to a Class C felony and then to enhance his sentence under the Habitual Felony Offender Act. This is ‘double dipping’ because its effect was to enhance his sentence two times.
“(4) Petitioner claims that trial counsel was ineffective for failing to prevent the State from using the prior conviction to enhance the charge and enhance the sentence as set forth in claim (3).”

After the State responded with a motion to dismiss, the circuit court, citing Rule 32.7, Ala. R.Crim. P., summarily dismissed the petition. Lawrence then filed this appeal essentially reasserting the claims from his petition.

At the time the offense was committed, the Code of Alabama defined second-degree theft as follows:

“(a) The theft of property which exceeds five hundred dollars ($500) in value but does not exceed two thousand five hundred dollars ($2,500) in value, and which is not taken from the person of another, constitutes theft of property in the second degree.
“(g) Notwithstanding subsection (a), the theft of property which exceeds two hundred fifty dollars ($250) in value but does not exceed two thousand five hundred dollars ($2,500) in value, and which is not taken from the person of another, where the defendant has previously been convicted of a theft of property in the first or second degree or receiving stolen property in the first or second degree, constitutes theft of property in the second degree.”

Section 13A-8-4, Ala.Code 1975. Because Lawrence stole property valued at $444.94, he was properly charged under subsection (g)-

Lawrence’s first claim — that he should have been convicted and sentenced of a misdemeanor because evidence of his prior felony was not certified and proven— lacks credence. The United States Supreme Court stated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. Thus the prior conviction did not have to be proved beyond a reasonable doubt. Furthermore, by pleading guilty, Lawrence admitted that he had a prior conviction, an element of the offense of second-degree theft of property under § 13A-8-4(g), Ala.Code 1975. “A guilty plea serves as an admission to all elements of the offense charged.” Mitchell v. State, 495 So.2d 738,'739 (Ala.Crim.App.1986). Thus, we find that the prior conviction was proven.

Lawrence’s second claim regarding ineffective assistance of counsel based on the aforementioned substantive claim also lacks credence. Counsel cannot be said to be ineffective for not filing a motion for which there is no legal basis. See Patrick v. State, 680 So.2d 959, 963 (Ala.Crim.App.1996); Hope v. State, 521 So.2d 1883, 1386 (Ala.Crim.App.1988).

As to Lawrence’s third claim that it was improper for the trial court to use the prior conviction that enhanced the misdemeanor charge to a felony charge to enhance his sentence under the Habitual Felony Offender Act, we agree. Regarding this issue, this Court has previously stated:

“ ‘In instances where there is only one prior conviction, and that conviction is a necessary element or ingredient of the currently charged offense, such prior conviction is not available and may not again be used to enhance the punishment under the Habitual Felony Offender Act. To hold otherwise, would nullify the punishment provision of the currently charged offense ... because the prior conviction would always activate the Habitual Felony Offender Act; we do not believe that the legislature intended that result.’ ”

Ringer v. State, 501 So.2d 493, 493-94 (Ala.Crim.App.1986) (quoting Wigley v. State, 456 So.2d 339, 341 (Ala.Crim.App.1982)).

The same rationale applies for a conviction under § 13A-8-4(g), Ala.Code 1975. The legislature made the prior felony a necessary element for a conviction of second-degree theft of property. The legislature also clearly directed that second-degree theft of property be punished as a Class C felony. Thus, to allow the prior felony to be used in accordance with the Habitual Felony Offender Act to enhance Lawrence’s sentence would result in the elevation of second-degree theft to a Class B felony in every case. Such an outcome could not have been the intent of the legislature. Therefore, this cause is due to be remanded so the trial court may impose the proper sentence.

Because Lawrence is receiving relief concerning his substantive claim that his prior conviction should not have been used to enhance his second-degree-theft-of-property conviction under the Habitual Felony Offender Act, we need not address his remaining ineffective-assistance-of-counsel claim relating to the aforementioned issue.

We therefore reverse the Jefferson Circuit Court’s dismissal of Lawrence’s petition for postconviction relief and remand this cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . In Apprendi, the United States Supreme Court held that ‘‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct 2348.