author: MOORE, Judge.

text:
    Steve E. BARNETT v. Robert R. QUINN, Jr., and Quinn Enterprises, Inc.
    2060463.
    Court of Civil Appeals of Alabama.
    Aug. 17, 2007.

      James R. Howison of Lambert & Howi-son, P.C., Huntsville, for appellant.
    John R. Benn, Sheffield, for appellees.
   MOORE, Judge.

Steve E. Barnett appeals from a summary judgment entered in favor of Robert R. Quinn, Jr., and Quinn Enterprises, Inc. We reverse and remand.

Proceduml History

On December 30,‘ 2005, Barnett sued Quinn Enterprises, Inc.; Robert R. Quinn, Jr., individually; and “Robert R. Quinn, Jr., doing business as Quinn Enterprises.” In his complaint, Barnett alleged that the defendants had breached a commercial lease agreement and had acted negligently by failing to maintain and repair the leased property, allowing the property to lapse into such disrepair that it was condemned by the City of Huntsville.

On October 2, 2006, Quinn Enterprises and Quinn filed a consolidated motion for a summary judgment, along with supporting evidentiary materials. The motion was based solely on the defense of accord and satisfaction.

After a hearing, the court entered a summary judgment in favor of Quinn Enterprises and Quinn. Barnett filed his notice of appeal to the Alabama Supreme Court on February 8, 2007; that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Facts

Quinn Enterprises owns certain commercial real property that is the subject of the lease in this case (“the property”). On October 10, 2003, “Robert Quinn of Quinn Enterprises” (sometimes hereinafter referred to as “the landlord”) entered into a lease agreement with “Steve E. Barnett of Barnett’s Furniture” (sometimes hereinafter referred to as “the tenant”) regarding the property. According to a prior lease agreement, the landlord had agreed to lease 19,600 square feet of business space on the property to “Ronald B. Barnett [and] Steve E. Barnett of Barnett’s Furniture” for $5,600 per month, payable in advance on the first day of each month, for two years beginning on June 1, 2003. The prior lease agreement further provided that, at the commencement of the lease, “the tenant” would pay $11,500 to the landlord; that amount included the first and last month’s rent and a $800 security deposit. Both lease documents provided: “This lease shall become null and void in the event said building should be entirely destroyed by fire or other casualty, or in the event said building should be condemned and ordered torn down or removed by due process of law, and the liability of the Tenant for the rents thereafter accruing hereunder shall cease upon the happening of said events.”

On August 2, 2004, the City of Huntsville notified Quinn that the structure located on the property had been declared unsafe by the City’s housing official. Quinn was ordered to repair or demolish the structure by October 1, 2004, and to immediately vacate the structure until it was repaired and approved by the City.

On August 20, 2004, Quinn Enterprises tendered a check in the amount of $7,190.32 to Barnett’s Furniture (hereinafter referred to as “the check”). On the front of the check, the following was written:

Additionally, Quinn typed the following on the back of the check: “Endorsement of this check is a mutual release of liability between Quinn Enterprises & Barnett’s Furniture.” Barnett’s wife, Gina Barnett, endorsed the check and wrote the words, “Release of Liability as of 8/24/04” under the endorsement. Barnett’s wife then deposited the check.

In his affidavit, Barnett testified, in part, as follows:

“3) The check dated August 20, 2004 contains a release of liability solely as to one issue: The Plaintiff agreed not to hold the Defendant responsible for injuries to any of the Plaintiffs employees while removing inventory from the condemned premises.
“4) The purpose of the check dated August 20, 2004 was for the Defendant to refund the security deposit of one month’s rent which was paid at the beginning of the lease between the Plaintiff and the Defendant, and to refund any other rent due as a result of the condemnation of the premises.
“6) On or about August 24, 2004, the Plaintiff discussed with the Defendant this check and the purpose of the language on the back of the check. The Plaintiff also informed the Defendant that the Plaintiff was not releasing him for the damage incurred by the Plaintiff having to move from the condemned building. Further, the Plaintiff explained that the release of liability was related solely to the ability of the Plaintiffs employees to enter the condemned building and remove inventory.
“7) The money received by me in the check dated August 20, 2004 was already owed to me pursuant to the terms of the lease.”
Quinn, however, testified in his affidavit:
“After Barnett’s Furniture had moved to their new location I took a refund check to Steve Barnett on August 24th 2004. ... During the course of the conversation, Steve told me that he would not hold me responsible.
“I handed Steve the check and explained the details noted on the front of the check: $5,600.00 refund of last months rent paid at the beginning of occupancy, $300 refund of utility deposit, and $1,290.30 refund for last 5 days remaining in the month, after the city shut us down. I also explained that the mutual release statement on the back of the check, would release both of us of any liability to each other concerning the closure. Steve said he understood and that he hated this happened. He thanked me for the check, we wished each other well, shook hands and I left.”

Standard of Review

“The standard of review applicable to a summary judgment is the same as the standard for granting the motion.” McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).

“A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present ‘substantial evidence’ creating a genuine issue of material fact — ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Ala.Code 1975, 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala. 1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).

Discussion

Barnett argues that the trial court erred in entering the summary judgment in favor of the defendants because, he says, (1) there was no meeting of the minds to support an accord and satisfaction and (2) there was no consideration to support an accord and satisfaction. We find Barnett’s second argument to be dispositive of this appeal.

Our supreme court has stated:

“This Court has emphasized the contractual nature of an accord and satisfaction:
“ ‘An accord and satisfaction is an agreement reached between competent parties regarding payment of a debt the amount of which is in dispute. Limbaugh v. Merrill Lynch, Pierce, Fenner & Smith, 732 F.2d 859, 861 (11th Cir.1984); O’Neal v. O’Neal, 284 Ala. 661, 227 So.2d 430 (1969). There can be no accord and satisfaction “without the intentional relinquishment of a known right.” Id. at 663, 227 So.2d at 431.
“ ‘Like any other contract, a valid accord and satisfaction requires consideration and a meeting of the minds regarding the subject matter. Bank Indep. v. Byars, 538 So.2d 432, 435 (Ala. 1988); Farmers & Merchants Bank of Centre v. Hancock, 506 So.2d 305, 310 (Ala.1987); Austin v. Cox, 492 So.2d 1021, 1022 (Ala.1986); Ray v. Alabama Central Credit Union, 472 So.2d 1012, 1014 (Ala.1985).’ ”

Ex parte Meztista, 845 So.2d 795, 797-98 (Ala.2001) (quoting Leisure American Resorts v. Carbine Constr. Co., 577 So.2d 409, 411 (Ala.1990)).

In Waide v. Tractor & Equipment Co., 545 So.2d 1327 (Ala.1989), after the trial court had entered a summary judgment in favor of Tractor and Equipment Company (“the company”), Waide appealed, arguing that an accord and satisfaction had been established. The company argued, however, that there was no consideration for the alleged accord and satisfaction and, therefore, that no accord and satisfaction had been established. The supreme court noted that Waide had not alleged any consideration other than the relinquishment of certain equipment to the company. The court also noted that Waide was required by the terms of a contract to relinquish the equipment to the company. Because relinquishing the equipment was something Waide was already obligated to do, the supreme court held that that act did not constitute the required consideration for the alleged accord and satisfaction.

The facts in the present case are analogous to those in Waide, supra. In this case, the only consideration alleged by the defendants was (1) that Barnett had been released from further obligations to pay rent, (2) that Barnett had been refunded the rent that he had already paid for the five days remaining in the month following the condemnation of the building, (3) that Barnett had been refunded the prepayment of the last month’s rent that he had been required to pay at the beginning of the lease, and (4) that Barnett had been refunded the security deposit.

Barnett testified, however, that the defendants had been required to take all the foregoing actions pursuant to the lease agreement. The express language of the lease agreement supports Barnett’s testimony that the check was merely a refund of the security deposit and of rent that Barnett had paid in advance but was no longer obligated to pay because the property had been condemned. The defendants argue that they were not required to refund the rent paid for the five days remaining in the month after the building was condemned; however, the lease agreement specifically provides that in the event the building is condemned, the liability of the tenant for rents thereafter accruing shall cease. Also, Quinn’s writing on the front of the check indicated that the funds represented by the check were owed pursuant to the terms of the lease. There is no evidence indicating that those amounts were in dispute. Finally, there is no evidence indicating that the parties had any question of liability on the part of Barnett; therefore, there can be no consideration implicit in the language “mutual release of liability.”

Based on the foregoing, we conclude that a genuine issue of material fact exists as to at least one of the essential elements of the alleged accord and satisfaction— whether that alleged accord and satisfaction was supported by consideration. Because the evidence before the trial court did not establish the defendants’ entitlement to a judgment as a matter of law on the issue of an accord and satisfaction, we reverse the trial court’s judgment and remand this cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ„ concur.

      . That lease agreement appears to be identical or substantially identical to the one subsequently executed by Quinn and Barnett in October 2003 and made the subject of this litigation. Although some portions of the October 2003 lease agreement are not included in the record, the omitted portions are not necessary to our resolution of the issue raised on appeal.

      . At some point, Barnett vacated the property and relocated his business, Barnett’s Furniture, as a result of the condemnation notice. However, the record does not indicate the date that Barnett vacated the premises.

      . Barnett admitted that Gina Barnett was an authorized agent or representative of Barnett’s Furniture.

      . "A landlord holds a tenant’s security deposit in trust for the tenant. Return of the security deposit is a contractual obligation of the landlord, subject only to the landlord's right to offset damages to the property.” 49 Am. Jur.2d Landlord and Tenant § 105 (2006) (footnotes omitted). In this case, there was no evidence of damages to the property.

      . We express no opinion as lo Barnett's other argument — whether the parties had a meeting of the minds regarding the alleged accord and satisfaction.

      . It appears that Quinn was not a party to the lease agreement. However, because Quinn did not attempt to make a prima facie showing that he was entitled to a summary judgment on that basis, we do not address that issue at this time. Nall v. Reinhardt Motors, Inc., 623 So.2d 1128, 1129 (Ala. 1993) (“The party moving for a summary judgment has the burden of showing, prima facie, the absence of a genuine issue of material fact.”).


source: Caselaw Access Project

license: Public Domain

text:
    Scott Christopher HOBBS v. Dorarena Kay HEISEY. Dorarena Kay Heisey v. Scott Christopher Hobbs.
    2060209.
    Court of Civil Appeals of Alabama.
    Aug. 17, 2007.
    Dinah P. Rhodes of Rhodes, Creech & Siniard, Huntsville, for appellant/cross-ap-pellee Scott Christopher Hobbs.

      William P. Burgess, Jr., Huntsville, for appellee/cross-appellant Dorarena Kay Heisey.
   MOORE, Judge.

Scott Christopher Hobbs (“the father”) appeals from a judgment entered by the Madison Circuit Court purporting to amend a prior judgment. Dorarena Kay Heisey (“the mother”) cross-appeals. We dismiss both the appeal and the cross-appeal as being from a void judgment.

Procedural History

On June 16, 2000, the father and the mother were divorced by the Madison Circuit Court. Pursuant to that judgment, the father and the mother were awarded joint legal and physical custody of their minor child. On March 19, 2002, the court entered a judgment modifying the divorce judgment; under the 2002 judgment, the parents retained joint legal and physical custody of the child. On October 12, 2005, the mother filed a petition requesting that she be awarded primary physical custody of the child, that the court incorporate the “Standard Parenting Clauses routinely utilized by ... the [cjourt,” that she be awarded child support, and that she be awarded her fees and expenses.

On November 21, 2005, the father filed his answer to the petition; he also filed a counterclaim in which he requested that, if the court were to determine that a change in custody was warranted, he be awarded primary physical custody of the child and child support. Further, the father requested that the court hold the mother in contempt for her alleged failure to comply with the prior orders of the court and that he be awarded an attorney fee. The mother answered the counterclaim on November 29, 2005.

On January 19, 2006, the mother filed an amendment to her petition requesting that the court hold the father in contempt. After an ore tenus hearing, the court entered a judgment on March 22, 2006. The judgment provided that the parties would continue to share legal and physical custody of the child. The judgment further provided:

“This Court’s decision should not be interpreted by anyone that the Defendant father’s actions in disciplining the child in the past are considered to be appropriate. In fact, such conduct and actions by the father in the future, if proven, will result in appropriate action by the Court by way of sanctions and modifications as necessary.”

The court ordered each party to pay their own attorney fees and denied both motions for contempt.

On April 12, 2006, the father filed a motion to alter or amend the March 22, 2006, judgment, requesting that it clarify what forms of discipline it deemed unacceptable. On April 20, 2006, the mother responded to the father’s April 12, 2006, motion; she also filed a motion for a new trial or, in the alternative, to alter or amend the March 22, 2006, judgment. In her motion, she requested that the trial court award her primary physical custody of the child, incorporate the “standard parenting clauses” used in the Madison Circuit Court, award her an attorney fee, and hold the father in contempt.

On June 28, 2006, the trial court withdrew its March 22, 2006, judgment and entered an amended judgment awarding primary physical custody of the child to the mother, incorporating the “standard parenting clauses,” awarding child support to the mother, finding the father in contempt, and awarding the mother an attorney fee.

On July 27, 2006, the father filed a motion to alter or amend the June 28, 2006, judgment. He requested that the court order that the parties share legal and physical custody of the child, that the court vacate its finding of contempt and its award of an attorney fee to the mother, and that the court find the mother in contempt and award him an attorney fee. The mother responded to the father’s July 27, 2006, motion on September 12, 2006.

On September 29, 2006, the court held a hearing on the father’s July 27, 2006, motion and, on October 26, 2006, 91 days after the postjudgment motion had been filed, the court purported to grant the father’s motion and to enter an amended judgment. On December 1, 2006, the father filed his notice of appeal; on December 7, 2006, the mother cross-appealed.

Discussion

Even though the issue has not been addressed by either party, this court must first determine whether the trial court had jurisdiction to enter the October 26, 2006, judgment from which both parties appeal. “Jurisdictional matters are of such importance that a court may take notice of them ex mero motu.” McMurphy v. East Bay Clothiers, 892 So.2d 395, 397 (Ala.Civ.App.2004).

“Rule 59.1, [Ala.] R. Civ. P.[,] is clear that a postjudgment motion is denied by operation of law if the trial court fails to dispose of it within ninety days.” Nunnery v. Nunnery, 587 So.2d 1214, 1214 (Ala.Civ.App.1991). After the 90-day period has run, a trial court no longer has jurisdiction to rule on a postjudgment motion. Id. Therefore, any judgment entered after the 90-day period has expired is void and will not support an appeal. Id.

In the present case, because the October 26, 2006, judgment was entered after the 90-day period to rule on a postjudgment motion had expired, that judgment is void and will not support an appeal. Nunnery, 587 So.2d at 1215. Because the parties have only sought review of the void October 26, 2006, judgment, we must dismiss the appeal and the cross-appeal. Id.

The mother’s request for the award of an attorney fee on appeal is denied. The father’s request for the award of an attorney fee on appeal is also denied.

APPEAL DISMISSED; CROSS-APPEAL DISMISSED.

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


text:
    J.J. v. LEE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2060163.
    Court of Civil Appeals of Alabama.
    Aug. 17, 2007.

      M. Joanne Camp, Opelika, for appellant.
    Troy King, atty. gen., and Sharon E. Ficquette and Lynn S. Merrill, asst, attys. gen., Department of Human Resources, for appellee.
   MOORE, Judge.

J. J. (“the mother”) appeals from the Lee Juvenile Court’s order of October 31, 2006, terminating her parental rights. We affirm.

Background

The mother has long suffered from paranoid schizophrenia and anxiety and has been under outpatient psychiatric care for the last 10 to 12 years. In 1996, the mother gave birth to a son whose custody was eventually granted to the mother’s aunt due to the mother’s mental illness. On January 30, 2005, the mother gave birth to a daughter, A.J. (“the child”). On February 1, 2005, after having previously received a report from the mother’s mental-health caseworker that the child may be in danger if the mother did not take her prescribed psychiatric medication, the Lee County Department of Human Resources (“DHR”) removed the child from the mother’s custody and placed the child in foster care.

On June 2, 2006, DHR filed a petition to terminate the parental rights of the mother. On September 21, 2006, and October 12, 2006, the juvenile court conducted a hearing on the petition at which it received ore tenus evidence. After that hearing, the juvenile court granted DHR’s petition and terminated the mother’s parental rights. J.J. appealed, asserting that the evidence presented to the juvenile court was insufficient to support termination of her parental rights.

Standard of Review

In cases in which a parent challenges the sufficiency of the evidence to support a termination of his or her parental rights, this court is required to conduct a “careful search of the record,” see Moore v. State Dep’t of Pensions & Sec., 470 So.2d 1269, 1270 (Ala.Civ.App.1985), to determine if clear and convincing evidence supports the judgment. Columbus v. State Dep’t of Human Res., 523 So.2d 419, 421 (Ala.Civ.App.1987); see also L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (“Due to the serious nature of the action of terminating a parent’s parental rights, this court must carefully review the unique set of facts established in each case in determining whether clear and convincing evidence was presented to support the termination of those rights.”); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (holding that due process allows parental rights to be terminated only upon clear and convincing evidence of unfitness); and Ala.Code 1975, § 26-18-7(a) (requiring clear and convincing evidence to support an order terminating parental rights). “ ‘ “[Cjlear and convincing evidence” is “[ejvidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.” ’ ” Ex parte T.V., 971 So.2d 1, 9 (Ala.2007) (quoting L.M. v. D.D.F., 840 So.2d at 179, citing, in turn, Ala.Code 1975, § 6-11-20(b)(4)).

Applicable Law

Section 26-18-7(a), Ala.Code 1975, a part of the 1984 Child Protection Act (“the CPA”), § 26-18-1 et seq., Ala.Code 1975, sets forth the law regarding termination of parental rights. That section provides:

“If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child.”

In addition, in cases in which a child is not in the physical custody of the parent, the CPA also requires the juvenile court to consider:

“(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.
“(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent.
“(3) Failure by the parents to maintain consistent contact or communication with the child.
“(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”

§ 26-18-7(b), Ala.Code 1975.

The CPA declares in two places that in deciding whether either of the statutory grounds for termination of parental rights has been established the juvenile court is not limited to consideration of the statutory factors set about above. See Ala.Code 1975, § 26-18-7(a) (“the court shall consider, ... but not be limited to, the following ....”); see also § 26-18-7(b). Accordingly, a juvenile court may consider other factors bearing on the question of whether or not grounds for termination of parental rights exist. See Brown v. Alabama Dep’t of Pensions & Sec., 473 So.2d 533 (Ala.Civ.App.1985).

Our supreme court has declared that before a juvenile court may terminate parental rights, it must conclude that there is no other viable alternative to termination. Ex parte T.V., supra. In many cases, DHR has a duty to use reasonable efforts to rehabilitate the parents so as to remove any obstacles to family reunification. See Ala.Code 1975, § 12-15-65(g)(2) and -65(m); Miller v. Alabama Dep’t of Pensions & Sec., 374 So.2d 1370 (Ala.Civ.App.1979). In addition, Ala.Code 1975, § 12-15-71(a), lists several alternatives to termination of parental rights, allowing a trial court to make any of the following orders affecting the custody of the child:

“(1) Permit the child to remain with the parents, guardian, or other custodian of the child, subject to conditions and limitations as the court may prescribe.
“(2) Place the child under protective supervision as herein provided or under the supervision of the Department of Human Resources.
“(3) Transfer legal custody to any of the following:
“a. The Department of Human Resources; provided, that the department is equipped to care for the child.
“b. A local public child-placing agency or private organization or facility willing and able to assume the education, care, and maintenance of the child and which is licensed by the Department of Human Resources or otherwise authorized by law to receive and provide care for the child.
“c. A relative or other individual who, after study by the Department of Human Resources, is found by the court to be qualified to receive and care for the child.
“(4) Make any other order as the court in its discretion shall deem to be for the welfare and best interests of the child.”

See Hunley v. Houston County Dep’t of Pensions & Sec., 365 So.2d 81, 84 n. 1 (Ala.Civ.App.1978); and Miller v. Alabama Dep’t of Pensions & Sec., supra. A trial court may terminate parental rights when clear and convincing evidence proves that those alternatives are not viable. Ex parte T.V., supra.

Evidence Presented at the Termination Hearing

The evidence presented at the termination hearing established that the mother, who was 42 years old at the time of the termination hearing, has lived for many years on her own in a suitably furnished and clean apartment with subsidized rent. The mother does not hold a job but maintains herself with Social Security disability benefits amounting to $623 per month. A caseworker from the East Alabama Mental Health Center monitors the mother and sometimes provides the mother with transportation to pick up groceries. However, the mother handles her own finances, cleaning, cooking, and other ordinary activities of daily living. The caseworker mainly ensures that the mother complies with her medication schedule. The caseworker testified at trial that the mother ordinarily complies with her medication schedule, except when the medication causes her physical side effects.

During her pregnancy the mother ceased taking her psychiatric medication out of concern for its effects on the child. As a result, the Lee County Probate Court twice committed the mother to a psychiatric hospital — in August and October 2004, respectively. After the mother gave birth to the child, she became compliant with her medications and remained compliant both with her medications and with her therapy appointments up to the time of the termination hearing.

Despite the mother’s compliance with her medication regimen, she continued to exhibit unusual behavior and beliefs. She testified that she gave birth to children from the time she was three years old. According to the mother, in 1996, she gave birth to a son at home who was taken from her by unknown persons; she claimed that the next day she had a second son who came out of her afterbirth. According to the mother, it was this second son that now resided with her aunt. The mother still asked about the whereabouts of the phantom first son. When she became pregnant in 2004, the mother again believed that she was having twins, and at the termination hearing she maintained that one of the unborn twins remained inside her despite obstetrical testing establishing otherwise.

The mother testified that when she was a little girl someone tied her to a chair while she was sleeping; that she awoke when she heard a baby crying out her name; that she untied herself, looked in a mirror, and noticed her eyes had turned blue; that she went to the oven from where the baby’s cries were coming and saw that the baby’s eyes were also blue; and that the baby was burned. The mother recalled the police questioning her about the baby; she testified that she had admitted putting the baby in the oven, although the mother indicated that she had not actually done it.

The mother also testified that when she was pregnant with the child she saw a big snake outside her window. Believing that snakes thrived off human breast milk, she got a knife and tried to make a spear out of a broomstick. According to the mother, the property manager at her apartment falsely accused the mother of trying to stab someone named Sue Ann with the knife. In addition, the mother testified that she sometimes sees colorful spirits. She also called the police one time to report blood dripping from her ceiling. Their investigation yielded nothing. Several witnesses testified that the mother had reported seeing a creature appearing to be half-man and half-wolf in her apartment. Witnesses also testified that the mother has reported at various times that worms were eating her flesh; that someone was playing tic-tac-toe on her head; and that people were dying in the apartment upstairs from the mother’s apartment.

While the child was in the custody of foster parents, the mother expressed concerns that the child was being sexually molested because of the way the child appeared and acted, although the child appeared and acted normally. The mother even telephoned the police twice to report her concerns as well as her belief that a security guard had struck the child on the head; the mother also reported that the foster parents were not properly feeding the child. The mother testified that she felt the child was in danger because many people hated the mother and that those people might hurt the child as a way to harm the mother.

The mother did not receive any rehabilitation services from DHR. A DHR caseworker testified that DHR knew that the mother was receiving state-sponsored mental-health treatment but that DHR never planned to offer the mother any additional services. DHR has always maintained the position that the child could never be safely reunified with the mother and that any other rehabilitative services were futile.

A DHR caseworker testified that the mother visited the child once a week under the supervision of DHR employees. The mother never missed a visit and always seemed eager to spend time with the child. Overall, the mother acted appropriately during those visits and never neglected the child. During those visits, the mother fed the child, changed her diapers, and played with the child. None of the visits were ever terminated prematurely due to the mother’s behavior. However, on one occasion, the mother, when disciplining the child, stated that she would slit the child’s throat and cut its head off. The mother immediately laughed afterwards and said she would not actually do those things to the child. The remark concerned the caseworker, although the caseworker testified that she believed the then one-year-old child could not understand the mother. The mother also seemed fixated on the child’s genital area and her concern that the child may have been subjected to sexual abuse. The mother stated that she wanted to breastfeed the child so that she could change its skin from black to white. The mother also regularly commented that the child looked sad, that the child did not love the mother, and that the foster parents were not adequately feeding the child. The mother never actually physically harmed the child or exhibited behavior that any witness believed could affect the child emotionally or mentally during her visits.

At the hearing, one of the mother’s mental-health caseworkers testified that, based on her four years of observing the mother in a home environment, the mother was capable of caring for the child so long as she received assistance from mental-health workers and DHR. Another of the mother’s mental-health caseworkers, who had known the mother since 1997, testified that the mother had never intentionally harmed herself or others and that the mother could care for the child so long as she had supervision. The mother’s psychiatrist and the mother’s therapist testified that the mother was as mentally stable as she would ever be and that the mother had never intentionally tried to harm herself or others. However, the psychiatrist would not rule out the possibility that the mother could harm the child while under a delusional state. The psychiatrist opined that the mother would only be capable of caring for the child if she were provided 24-hour-a-day supervision by a person who would perform the majority of the parental duties. The psychiatrist also recommended that the mother be allowed to maintain visitation with the child in order to avoid any further deterioration in her mental status.

DHR attempted to locate relatives to take custody of the child. The mother’s aunt who had taken custody of the mother’s son declined to take the child. The mother’s brother occasionally expressed interest in taking the child, but he basically admitted his interest was based on pressure from the family to help out. Ultimately, the brother did not follow through with DHR’s attempt to perform a home study on his house. The brother also admitted that he had no parenting skills and that he would have to rely on others to properly care for the child. The mother objected to her brother’s being considered as the child’s legal custodian for this latter reason.

Grounds for Termination

The evidence presented at the termination hearing unequivocally established that the mother suffers from a serious and chronic mental illness that is unlikely to change in the foreseeable future, even with continued treatment. The mother’s mental illness makes it difficult for the mother to distinguish reality from fiction. The mother’s psychiatrist testified that the mother could harm the child while in a distorted mental state, even though she had never harmed anyone in the past. All of the mother’s mental-health experts testified that the mother could not independently care for the child; they all agreed that she could care for the child only with constant supervision.

In Muffoletto v. State Department of Human Resources, 537 So.2d 939 (Ala.Civ.App.1988), this court affirmed a judgment terminating the parental rights of a mother who suffered from chronic schizophrenia and Tourette’s syndrome. Medication controlled the mother’s condition to the point that she could live alone, but she required numerous hospitalizations after the child’s birth. Efforts to reunify the mother with the child failed due to those repeated hospitalizations. This court sympathized with the mother because, due to circumstances beyond her control, she could not safely assume custody of her child. The court nevertheless held that the record contained clear and convincing evidence that the mother’s mental illness rendered her incapable of earing for her child.

In Thornton v. Thornton, 519 So.2d 960 (Ala.Civ.App.1987), this court upheld a judgment terminating the parental rights of a mother who had shot and killed the child’s four-year-old sibling while suffering from a violent episode of chronic schizophrenia. The mother’s psychiatrist testified that the mother’s mental condition was in remission but that he could not guarantee that the mother would not have another violent episode even while taking her psychotropic medication. The psychiatrist also testified that a violent episode was likely if the mother quit taking her medication.

In T.L.W. v. State Department of Human Resources, 678 So.2d 128 (Ala.Civ. App.1995), a mental-health expert testified that the mother suffered from major depression, addictive disease problems, and a personality disorder that made it unlikely that she would ever be able to adequately care for her children. This court noted that the mother obviously loved her children and that they loved her. Nevertheless, this court held that clear and convincing evidence supported the trial court’s judgment determining that the mother was unable to discharge her responsibilities to and for her children, that her mental condition rendered her unable to properly care for her children, and that the mother’s condition was unlikely to change in the foreseeable future.

Although the cases cited above are not directly on point with this case, the legal principles applied in those cases lead us to conclude that grounds for termination of parental rights exist when a parent, due to a severe and prolonged mental illness, cannot safely and consistently perform ordinary parental responsibilities without constant and significant assistance from and supervision by state agencies. As this court stated in T.L.W.:

“ ‘[Ajlthough it appears that the mother is genuine in her love and concern for her child[ ], it appears ... that her limitations are so severe that she [is] unable to care for the[ ] child[ ].’ ”

678 So.2d at 132 (quoting G.L. v. State Dep’t of Human Res., 646 So.2d 81, 84 (Ala.Civ.App.1994)).

At trial, and again in her briefs to this court, the mother emphasized that she complied with every request by DHR and that she never missed a single visit with the child. However, the CPA requires only that the juvenile court must consider those factors when deciding the ultimate question of whether the parent is unable or unwilling to discharge parental responsibilities to and for the child. See Ala. Code 1975, § 26-18-7(a). The mere fact that a parent has satisfied one or more of those factors is not determinative of whether a parent is able to discharge his or her responsibilities to and for the child; that fact does not prevent the trial court from finding grounds for termination of parental rights when clear and convincing evidence shows that the parent’s mental illness prevents proper care of the child.

In this case, out of love for her child, the mother no doubt did everything within her power to gain custody of the child, including complying with all of DHR’s requests and consistently visiting the child. Nevertheless, clear and convincing evidence established that it was not within her power to overcome her mental problem to the point that she could properly care for the child. Therefore, the juvenile court did not err in finding grounds for termination of the mother’s parental rights.

Lack of Viable Alternatives

The mother next argues that the juvenile court erred in failing to consider viable alternatives to termination of her parental rights. The mother initially argues that DHR did not make any effort to reunify her with the child. The mother also contends that the juvenile court should have awarded her custody with DHR’s supervision, as recommended by the mental-health experts. DHR counters that it had no duty to attempt to reunify the mother with the child, citing D.W. v. State Department of Human Resources, 595 So.2d 502 (Ala.Civ.App.1992). DHR also asserts that granting the mother custody with supervision by DHR was not a viable alternative in this case.

In D.W., supra, a father argued that the juvenile court had erred by terminating his parental rights due to his mental illness. The father asserted that DHR had a duty to rehabilitate him and that it had made no effort, such as arranging parenting classes for him, to do so. The caseworker testified that DHR made no effort to rehabilitate the father because his mental illness— chronic schizophrenia that sometimes provoked violent psychotic episodes — was so severe that any rehabilitation effort would have been futile. The court held that DHR had no duty to rehabilitate the father, stating:

“A child may be found to be dependent based on the mental illness or mental deficiency of a parent, if the disorder renders the parent unable to take care of the child and is unlikely to change in the foreseeable future. If such a finding is made, there is no requirement that rehabilitation be attempted before the parental rights may be terminated. Matter of Hutchins, 474 So.2d 1152 (Ala. Civ.App.1985).”

595 So.2d at 504.

In In re Hutchins, 474 So.2d 1152 (Ala.Civ.App.1985), this court held that DHR’s duty to use reasonable efforts to rehabilitate a parent arose from § 26-18-7(a)(6), Ala.Code 1975. That section applies when DHR petitions to terminate parental rights based on a parent’s inability or unwillingness to discharge his or her parental responsibilities to the child. However, if the juvenile court properly concludes that the parent suffers from a condition, such as a mental illness, that renders the parent unable to properly care for the child, and that such condition is unlikely to change in the foreseeable future, § 26-18-7(a)(6) is inapplicable and DHR has no duty to use reasonable efforts to rehabilitate the parent.

We conclude that DHR’s reliance on D.W. and Hutchins is misplaced. D.W. was decided in 1992 and, since that time, the legislature has amended the juvenile code. As a result, the duty to rehabilitate a parent does not arise exclusively from § 26—18—7(a)(6), if it ever did. Rather, Ala.Code 1975, § 12-15-1.1(3), establishes a goal for the juvenile courts of this state “[t]o reunite a child with his or her parents as quickly and as safely as possible when the child has been removed from the custody of his or her parents.” Alabama Code 1975, § 12-15-65(g), provides that a juvenile court, when entering an order continuing the placement of a child outside of his or her home, must make specific findings that reasonable efforts have been made to reunite the child with his or her family, or that such reasonable efforts have failed. The duty to reunify the child with the child’s parents includes the duty to rehabilitate the parents if such rehabilitation can help achieve the ultimate goal of reunification. See J.B. v. Jefferson County Dep’t of Human Res., 869 So.2d 475 (Ala.Civ.App.2003). Hence, Hutchins, which D.W. relied upon, is no longer an accurate statement of the law. As the law now stands, DHR has a duty to use reasonable efforts to rehabilitate a parent in every case in which reunification is practicable. J.B., 869 So.2d at 481.

Despite its misplaced reliance on D.W., DHR correctly argues that it had no duty to attempt rehabilitation based on the facts of this particular case. Section 12-15—65(g) requires DHR to use “reasonable” efforts to reunify the child with his or her parents. Obviously, any effort at rehabilitation would only be reasonable if such effort, if successful, could remove the obstacle to family reunification.

In this case, the mother’s chronic schizophrenia is incurable and, according to her psychiatrist, no known treatment can effectively control her condition so that the mother can assume proper care of the child. Accordingly, DHR could not have undertaken any effort that would have allowed the child to safely reunify with the mother. See Ala.Code 1975, § 12-15-65(m) (“In determining the reasonable efforts to be made with respect to a child, and in making such reasonable efforts, the child’s health and safety shall be the paramount concern.”). In short, rehabilitation of the mother was not a viable alternative to termination of her parental rights in this case. Therefore, the juvenile court did not err in failing to order DHR to arrange for parenting classes, to conduct a home study of the mother’s apartment, or to pursue other rehabilitation efforts.

The juvenile court also did not commit reversible error by failing to grant the mother custody with DHR supervision. Although § 12-15-71(a)(l) and (a)(2) grant the juvenile court the option of placing the child with the parent with DHR supervision, the juvenile court is not required to do so when clear and convincing evidence proves that such an alternative is not viable. In this case, the juvenile court had before it clear and convincing evidence that the mother could only parent the child with constant supervision by persons trained in proper parenting techniques. Undisputed evidence proved that DHR did not have the resources to employ a person 24 hours a day to supervise and to guide the mother’s interaction with the child. Clear and convincing evidence also established that DHR attempted without success to find a suitable custodian for the child within the mother’s family. Therefore, clear and convincing evidence sustains the juvenile court’s implicit finding that placement of the child with the mother with DHR supervision on a permanent basis was not a viable alternative to termination of the mother’s parental rights.

For these reasons, we affirm the termination of the mother’s parental rights.

AFFIRMED.

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

      . The parental rights of the child's unknown father, who the mother could not or would not identify, were also terminated by the juvenile court. Before the termination hearing, DHR published notice of the hearing and checked the Putative Father Registry. No one responded to the publication notice and DHR found no registrant claiming to be the father of the child at issue in this case. The father's parental rights are not at issue in this appeal.

      . The record indicates that the mother merely imagined this event.

      . The evidence was undisputed that the child was gaining weight normally and was being routinely checked by a pediatrician.

      . The mother’s mental-health records were produced at the termination hearing; those records documented that the mother constantly voiced concern and distress over the loss of custody of her child.

      . The mother does not argue that the juvenile court erred by failing to consider granting the foster parents permanent custody and allowing her supervised visitation. See D.C. v. J.C., 842 So.2d 17 (Ala.Civ.App.2002); D.M.P. v. State Dep’t of Human Res., 871 So.2d 77, 95 n. 17 (Ala.Civ.App.2003); and W.L.H. v. B.L.M., 829 So.2d 173, 175 (Ala.Civ.App.2002) (Murdock, J., concurring specially). Hence, we cannot address whether the juvenile court erred in failing to consider that alternative. See Asam v. Devereaux, 686 So.2d 1222 (Ala.Civ.App. 1996). However, we note that, although the mother no longer has a legal right to visitation with the child, nothing in the law prevents the foster parents or adoptive parents from allowing the mother supervised visitation with her child so as to preserve some sort of bond with the mother if the foster parents or adoptive parents agree.


author: THOMAS, Judge.

text:
    Ex parte ONYX WASTE SERVICES OF FLORIDA d/b/a Onyx Waste Services Southeast, Inc. (In re Deon Henley v. Onyx Waste Services of Florida d/b/a Onyx Waste Services Southeast, Inc.).
    2060453.
    Court of Civil Appeals of Alabama.
    Aug. 17, 2007.
    Shane M. Oncale and Cynthia N. Williams of Clark, Oncale, Hair & Smith, PC, Birmingham, for petitioner.
    Dennis Harmon, Columbus, Mississippi, for respondent.
   THOMAS, Judge.

Deon Henley sued Onyx Waste Services of Florida doing business as Onyx Waste Services Southeast, Inc. (“Onyx”), alleging an on-the-job injury and seeking workers’ compensation benefits. Onyx filed a motion in the trial court to dismiss or, in the alternative, to transfer the action from Tuscaloosa County to Chilton County. That motion was denied by the trial court on October 26, 2006. Onyx then moved the trial court to reconsider that order; the trial court denied Onyx’s motion to reconsider on January 12, 2007. Onyx petitioned our Supreme Court for a writ of mandamus on February 21, 2007. Our Supreme Court then transferred the petition to this court. We dismiss the petition.

Although neither party challenges this court’s appellate jurisdiction, or addresses in detail the timeliness of Onyx’s petition for a writ of mandamus, we must consider ex mero motu whether this court has jurisdiction over the petition. Goodyear Tire & Rubber Co. v. Moore, 900 So.2d 1239, 1240 (Ala.Civ.App.2004), and Dunlop Tire Corp. v. Arch, 784 So.2d 1056, 1058 (Ala.Civ.App.2000).

The dispositive jurisdictional question we must address is whether Onyx’s petition for a writ of mandamus was timely filed. Importantly, unlike a postjudgment motion following a final judgment, a motion to reconsider an interlocutory order does not toll the presumptively reasonable time period that a party has to petition an appellate court for a writ of mandamus. Rule 21(a)(3), Ala. R.App. P., and Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala.2003). Rule 21(a)(3), Ala. R.App. P., provides:

“The petition shall be filed within a reasonable time. The presumptively reasonable time for filing a petition seeking review of an order of a trial court or of a lower appellate court shall be the same as the time for taking an appeal. If a petition is filed outside this presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.”

In the present case the petition for a writ of mandamus was filed 40 days after the denial of Onyx’s motion to reconsider, and 118 days after the trial court first denied Onyx’s motion to dismiss or, alternatively, to transfer the action to Chilton County.

Onyx claims in its petition to this court that the trial court granted in part its motion to reconsider because the trial court agreed with Onyx that venue in Tuscaloosa County would not be proper under § 6-3-7(a)(3), Ala.Code 1975. We disagree that the trial court granted in part Onyx’s motion; the trial court specifically stated that Onyx’s motion to reconsider was denied. As a result, the entirety of the action will be tried in Tuscaloosa County. The trial court clarified the basis of its first order when it denied Onyx’s motion to reconsider; it did not grant the motion in part.

Additionally, we note that this case is distinguishable from a situation in which a trial court withdraws its previous order because it was issued “by mistake” and then enters a new order providing the same relief as the first order. See Ex parte International Refining & Manufacturing Co. d/b/a IRMCO, 959 So.2d 1084, 1089 (Ala.2006)(holding that when a trial court effectively withdraws its previous order and then enters another order regarding the same subject matter and reaching the same result as the previous order, the date the second order is entered is the date from which the period in which a party may petition for a writ of mandamus begins to run). In this case, the materials submitted to this court by Onyx do not indicate that the trial court withdrew its first order. Furthermore, in Ex parte International Refining & Manufacturing, the trial court conducted a hearing within 42 days of the date it entered its original order compelling discovery and stated at that hearing that it had entered that order by mistake. 959 So.2d at 1089. In contrast, the hearing in this case on the motion to reconsider was not held within 42 days of the entry of the original order, and nothing in Onyx’s petition indicates that the trial court withdrew its original order within 42 days of its entry.

When a petition for a writ of mandamus has not been filed within a presumptively reasonable time, the petition “shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.” Rule 21(a)(3), Ala. R.App. P. “The filing of such a statement in support of an untimely petition for a writ of mandamus is mandatory.” Ex parte Fiber Transp. L.L.C., 902 So.2d 98, 100 (Ala.Civ.App.2004) (citing Ex parte Pelham Tank Lines, Inc., 898 So.2d 733, 736 (Ala.2004), and Ex parte Troutman Sanders, 866 So.2d at 550). Onyx has not included such a statement in its petition. Therefore, because the petition was not filed within a presumptively reasonable time and no statement constituting good cause for this court to consider the petition was filed, we must dismiss the petition.

PETITION DISMISSED.

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


author: PER CURIAM.

text:
    Benjamin LARKIN and Sharon Easton v. AMERICAN WESTERN INSURANCE COMPANY et al.
    2060720.
    Court of Civil Appeals of Alabama.
    Aug. 24, 2007.

      Benjamin Larkin and Sharon Easton, pro se.
    James W. Garrett and R. Mac Freeman, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellees.
   PER CURIAM.

This appeal arises from a pro se complaint originally filed by Benjamin Larkin and Sharon Easton in the Montgomery District Court naming as defendants American Western Insurance Company (“AWIC”) and three other business entities and seeking an award of $10,000 based upon an alleged breach of an insurance contract between the plaintiffs and AWIC. Although none of the defendants are shown as having been served, an attorney appearing on behalf of AWIC and “GULFinance” filed a motion to dismiss, after which the district court scheduled the case for a March 6, 2006, bench trial.

Although Rule 15(a), Ala. R. Civ. P., as made applicable to district courts via Rule 15(dc), requires a party to obtain leave of court to amend a pleading less than 42 days before a trial setting, the plaintiffs filed an “emergency” motion on March 3, 2006, three days before trial, in which they alleged that they had “recently received a complete total” of their claim for damages and that those damages would exceed the district court’s jurisdictional threshold (ie., $10,000; see Ala.Code 1975, § 12-12-30); the plaintiffs therefore sought an order transferring the case to the Montgomery Circuit Court. At the beginning of the March 6, 2006, trial, at which Sharon Ea-ston appeared and at which Benjamin Lar-kin did not appear, the district court denied the plaintiffs’ motion as having been untimely filed. After the district court made that ruling, Easton left the courtroom and did not return; the district court then entered a judgment dismissing the case for failure to prosecute. Under Rule 41(b), Ala. R. Civ. P., as made applicable to district courts under Rule 41 (dc), that judgment of dismissal “operate[d] as an adjudication upon the merits” and was, in effect, a dismissal with prejudice because the district court, in its order, did not “otherwise specify]” the effect of its judgment.

On March 17, 2006, the plaintiffs filed two motions. One of the motions simply requested the district court to revisit its ruling on the motion in which they had requested transfer of the case to the circuit court. However, another motion, labeled “Motion for Relief/Rehearing from Final Decision,” asserted that the plaintiffs had not failed to prosecute and that they believed the amount of their “oral claim” exceeded both their paper estimates and the district court’s monetary jurisdiction; in that motion for “rehearing,” the plaintiffs requested (1) that the district court transfer the case to the circuit court, (2) that the district court “correct it[s] records” to show that the “oral” claim exceeded its jurisdiction, and (3) that the district court “correct” the judgment to reflect that the plaintiffs’ claim had been discussed at length in open court and that the judgment was actually drafted by counsel for AWIC. The district court did not expressly act on either of the plaintiffs’ March 17, 2006, motions, but on March 23, 2006, the district court placed an entry on the case-action-summary sheet specifying that its judgment of dismissal was “without prejudice.” As evidenced by a district-court filing stamp, on April 6, 2006, 14 days after the district court’s amendment of its judgment, the plaintiffs filed a notice of appeal to the circuit court for a trial de novo; the plaintiffs also filed on that date an affidavit of substantial hardship requesting a waiver of prepayment of docket fees as to the appeal, which the district court granted on that date. However, on April 7, 2006, an entry was placed on the district-court case-action-summary sheet reflecting that the case had been appealed to and “received by” the Montgomery Circuit Court on that date.

In the circuit court, counsel for AWIC filed a motion to dismiss the appeal; AWIC contended in that motion that neither motion filed by the plaintiffs in the district court on March 17, 2006, was a valid postjudgment motion that would extend the time for taking an appeal and that the plaintiffs had not filed their notice of appeal until April 7, 2006, which, AWIC argued, was too late to invoke the circuit court’s appellate jurisdiction. The plaintiffs then requested the entry of a judgment against all defendants other than AWIC and filed a response in opposition to AWIC’s motion to dismiss in which they averred that the district court had entered its judgment on March 6, 2006; that they had filed a proper postjudgment motion on March 17, 2006; that the district court had denied that motion and entered a judgment on March 23, 2006; and that they had appealed on April 6, 2006. On September 13, 2006, the circuit court entered a judgment dismissing the appeal as untimely. On October 6, 2006, less than 30 days after the entry of the circuit court’s judgment dismissing the appeal, the plaintiffs filed a “motion for relief’ from that judgment averring that they had filed a timely appeal; the circuit court denied that motion on November 2, 2006. On December 13, 2006, 41 days later, the plaintiffs appealed from the circuit court’s judgment.

The sole issue presented is whether the plaintiffs properly perfected their appeal to the circuit court from the district court’s judgment. We answer in the affirmative.

As noted in Greer v. Greer, 516 So.2d 719 (Ala.Civ.App.1987), one of the eases cited by the plaintiffs in their appellate brief, “[w]hen a post-trial motion has been filed pursuant to Rules 50, 52, 55 and 59 of the Alabama Rules of Civil Procedure (Ala. R. Civ. P.), the time for filing a notice of appeal” from a circuit court’s judgment to an appellate court as specified in Rule 4(a)(3), Ala. R.App. P., “is tolled”; “[s]uch a post-trial motion ... has to be filed within 30 days after the entry of final judgment for such motion to be considered timely filed” under Rules 50(b), 52(b), 55(c), 59(b), and 59(e), Ala. R. Civ. P. 516 So.2d at 720. However, the plaintiffs’ appeal from the district court’s judgment to the circuit court was governed neither by Rule 4(a)(3), Ala. R.App. P., nor by the 30-day time limit specified in the Rules of Civil Procedure cited in Greer. Rather, in civil cases filed in district court in which an appeal lies to a circuit court, the rule is that “[a]ny party may appeal from a final judgment ... by filing notice of appeal in the district court, within Ik days from the date of the judgment or the denial of a posttrial motion, whichever is later.” Ala. Code 1975, § 12-12-70(a) (emphasis added). In addition, “post-trial motions” under Rules 52, 55, and 59, Ala. R. Civ. P., that are filed in district court must be filed within 14 days after the entry of judgment. See Rules 52(dc), 55(dc), and 59(dc), Ala. R. Civ. P.

In this case, the district court entered a final judgment dismissing the plaintiffs’ case with prejudice on March 6, 2006. See Rules 41(b), 58(a), and 58(c), Ala. R. Civ. P., as made applicable in district courts via Rule 58(dc). The plaintiffs filed a motion for “relief’ or “rehearing” on March 17, 2006, that directly attacked the district court’s judgment. By seeking additional findings and by asserting that the district court lacked jurisdiction to rule as it did, the motion in effect sought an order vacating the district court’s judgment and entering a new judgment transferring the case to the circuit court — relief that is cognizable under Rules 52(b) and 59(e), Ala. R. Civ. P., as made applicable to district courts under Rules 52(dc) and 59(dc). See Crosslin v. Crosslin, 494 So.2d 431, 431-32 (Ala.Civ.App.1986) (motion for “rehearing” deemed filed under Rule 59, Ala. R. Civ. P.); City of Birmingham v. City of Fairfield, 396 So.2d 692, 696 (Ala. 1981) (motion “to reconsider” or “to rehear” deemed a Rule 59(e) motion when it “reargu[ed] ... germane legal propositions”); see also Rule 41, Ala. R. Civ. P., Committee Comments on 1973 Adoption (noting that when a case had been dismissed pursuant to Rule 41, “[a] rehearing may be requested under Rule 59(a)(2) and amendments to the court’s findings may be pursued under Rule 52(b)”). “[A] motion filed within the ... limitation [period] of Rule 59(e), seeking relief from a judgment that is available under Rule 59(e), should be treated as a Rule 59(e) motion to alter, amend, or vacate the judgment” rather than as a Rule 60(b), Ala. R. Civ. P., motion for relief from the judgment. Ex parte Johnson, 715 So.2d 783, 785 (Ala. 1998). We thus reject AWIC’s position that the plaintiffs, instead of filing a “post-trial” motion that tolled the time for taking an appeal from the district court’s judgment, filed a motion pursuant to Rule 60(b), Ala. R. Civ. P., that did not toll the time for appeal.

Under Rule 59.1, Ala. R. Civ. P., as made applicable to district courts under Rule 59.1(dc), unless all parties consent or an appellate court grants an extension, “[n]o post-judgment motion filed pursuant to Rules ... 52, 55, or 59 shall remain pending” for over 14 days. It is unclear whether the district court, at the time it entered its March 23, 2006, order amending its judgment of dismissal to provide that the dismissal was without prejudice, intended its ruling to be construed as a denial of the plaintiffs’ March 17, 2006, post-trial motion; however, even if it did not so intend, its failure to expressly grant that motion by March 31, 2006, would have amounted to a denial of that motion as of that date under Rule 59.1 and Rule 59.1(dc). The plaintiffs filed their notice of appeal in the district court on April 6, 2006, which was 14 days after the district court entered its March 23, 2006, order that would constitute the earlier of the two days upon which the post-trial motion could be said to have been denied. Thus, based upon the plain language of § 12 — 12— 70(a), Ala.Code 1975, we must conclude that the circuit court erred in concluding that the plaintiffs’ appeal was untimely.

We likewise reject AWIC’s contention, in its brief on appeal, that the plaintiffs untimely invoked appellate jurisdiction as to their appeal from the circuit court. As Greer notes, Rule 4(a)(3), Ala. R.App. P., provides for the tolling of the time for taking an appeal from a circuit court’s judgment during the pendency of a motion pursuant to, among other rules, Rule 59(e), Ala. R. Civ. P. In their post-judgment motion in the circuit court, which was filed less than 30 days after the entry of the circuit court’s judgment dismissing the appeal, the plaintiffs averred that they had timely appealed from the district court’s judgment and that they were seeking relief from the circuit court’s judgment based upon that fact. In so doing, the plaintiffs properly sought relief cognizable under Rule 59(e), Ala. R. Civ. P., as they had previously done in the district court in response to that court’s judgment. See City of Birmingham and Ex parte Johnson, supra. The plaintiffs filed a notice of appeal within 42 days of the entry of the circuit court’s order denying their post-judgment motion, and thereby timely invoked this court’s appellate jurisdiction.

We conclude that the plaintiffs’ appeal from the district court’s judgment of dismissal to the circuit court was timely filed. The circuit court thus erred in dismissing the plaintiffs’ appeal, and we hereby reverse that judgment and remand the case for further proceedings. In doing so, we note that the plaintiffs will be “limited in the amount of [their] recovery to the jurisdictional amount that could have been claimed and recovered in the [district] court,” i.e., $10,000, unless a counterclaim exceeding the district court’s jurisdictional threshold is asserted by a defendant. See Rule 13(j), Ala. R. Civ. P.

The plaintiffs have filed in this court a “Motion for [J]udgment and Make Whole Relief [sic ]” in which a default judgment against the appellees is sought. That motion is denied.

REVERSED AND REMANDED.

All the judges concur.

      . Those entities were identified as “GULFi-nance,” "Jordan-Morgan, Inc.,” and "The Frederick Agency.”

      . A subsequent motion to correct the case-action-summary sheet to expressly state that the notice of appeal had been filed on April 6, 2006, was never ruled upon.


author: WISE, Judge.

text:
    Timothy Darrell HOLLAWAY v. STATE of Alabama.
    CR-05-2165.
    Court of Criminal Appeals of Alabama.
    May 25, 2007.

      Britt Cauthen, Decatur; and Ralph E. Slate, Decatur, for appellant.
    Troy King, atty. gen., and Marc Bass, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Timothy Darrell Holla-way, was convicted of two counts of unlawful possession of a controlled substance, a violation of § 13A-12-212, Ala.Code 1975; one count of attempted manufacture of a controlled substance, a violation of § 13A-12-218, Ala.Code 1975; one count of second-degree possession of marijuana, a violation of § 13A-12-214, Ala.Code 1975; one count of possession of drug paraphernalia, a violation of § 13A-12-260, Ala. Code 1975; and one count of attempting to evade a police officer, a violation of § 32-5A-193, Ala.Code 1975. For the two possession-of-a-controlled-substance convictions, he was sentenced to two five-year concurrent sentences; those sentences were split, and he was ordered to serve 2 years with the balance suspended followed by 5 years’ probation. For his attempted-manufacture-of-a-eontrolled-substance conviction, he was sentenced to 15 years’ imprisonment to run concurrently; that sentence was split, and he was ordered to serve 3 years’ imprisonment with the balance suspended followed by 5 years’ probation. For his possession-of-marijuana conviction, he was sentenced to 12 months’ imprisonment to run concurrently. For his possession-of-drug-paraphernalia conviction, he was sentenced to 12 months’ imprisonment to run concurrently. For his attempting-to-evade conviction, he was sentenced to 3 months’ imprisonment to run concurrently with all of his other convictions. Mandatory statutory fines were assessed, and Hollaway was ordered to pay attorney fees and court costs.

The record established that on December 12, 2004, Deputy Doug Key of the Morgan County sheriffs office attempted to serve process in a civil matter on Timothy Hollaway at his residence at 806 Hodges Street in Hartselle. While serving the papers, he detected an odor that he recognized from his training and experience to be consistent with the manufacture of methamphetamine. Deputy Key left the residence but continued surveillance at the residence and observed a truck leaving the residence. Other officers were called to pursue the driver of the truck, Belinda Williams; those officers apprehended Williams and placed her under arrest for an outstanding warrant. Deputy Key contacted Investigator Jim England of the drug task force about the suspected illegal activity at the residence, and England obtained a search warrant for the premises.

Later that evening, Investigator England, Agent Steven Siaja, and Deputy Doug Key of the Morgan County Sheriffs Department, Lt. Rutherford and Agent Ana Franklin of the Decatur Police Department organized crime unit, and Sgt. Faron White of the Decatur Police Department executed a search warrant on Timothy Hollaway’s residence. After knocking and announcing their presence, the officers forcibly entered the residence. Upon their entry, they found Hollaway and Jennifer Bradford in the master bedroom. Following Hollaway’s direction, the officers found numerous precursor chemicals and items used in the manufacture of methamphetamine. Among the items found were an air purifier, a set of digital scales, extracted red phosphorous, hydrogen peroxide, coffee filters, a bottle of ether, an electric cooking plate, a bottle of tincture of iodine, sulphuric acid, a hydrogen gas generator, Coleman brand camp-stove fuel, pseu-doephedrine residue, “Red Devil” brand lye, a pipe containing marijuana, a hypodermic syringe and a glass pipe containing methamphetamine, various guns, and an instruction booklet on how to manufacture methamphetamine.

At the conclusion of the search, Holla-way was arrested and taken to the Morgan County jail. After being advised of his Miranda rights, Investigator England asked Hollaway if he wished to make a statement about the items discovered in his residence. Hollaway then made a statement that he was producing methamphetamine in the house and that all the equipment, precursor chemicals, marijuana, and drug paraphernalia belonged to him. Forensic testing was performed on the substance believed to be pseudoephed-rine, which confirmed that it was indeed pseudoephedrine.

On January 5, 2005, based on information gained from a confidential informant, another search warrant was executed on Hollaway’s residence by Agent Siaja, Agent Franklin, and Lt. Rutherford. Agent Siaja had gained information that there was probably a significant quantity of methamphetamine at the residence. When officers entered the residence, Holl-away was not home. When the officers stepped outside to move their vehicles, Hollaway drove past the residence and ran a stop sign in an apparent attempt to avoid whoever was at his residence. Agent Siaja gave chase, turning on his blue lights. With assistance from the Hartselle Police Department, Agent Siaja pursued Holla-way for 45 minutes, traveling at speeds between 50 and 80 miles per hour. Holla-way continued to elude Agent Siaja until he was finally forced to stop approximately one block from his residence.

Officers took Hollaway into custody and brought him inside the residence. The residence was then searched. Officers had to chisel the hinges off the safe in the master bedroom, because they did not have a key or the combination. Officers found methamphetamine and 53 Xanax pills in the safe in Hollaway’s master bedroom. They also discovered two ounces of marijuana, a set of digital scales, a glass pipe, and various other components consistent with the manufacture of methamphetamine in the safe. Hollaway testified that, other than law enforcement during the first search of his residence, no one had the key or combination to his safe.

On the basis of the search, Hollaway was charged with two counts of unlawful possession of a controlled substance, one count of second-degree possession of marijuana, one count of attempt to manufacture a controlled substance, and one count of unlawful possession of drug paraphernalia, together with the traffic violations of reckless driving and attempting to elude a police officer.

At trial, Hollaway testified that he had no knowledge of the purpose of the components law-enforcement officers seized from his home. He stated that the items belonged to Eric Gatlin. According to Holla-way, Gatlin had a key to the residence and had left some items in bags and boxes in the kitchen. Hollaway admitted to possession of the Xanax pills, but disputed the quantity seized. He denied possessing marijuana or drug paraphernalia.

I.

On appeal, Hollaway claims that the trial court erred when it denied his motion for a judgment of acquittal. He appears to argue that there was insufficient evidence to submit the possession-of-a-controlled-substance, methamphetamine, and attempted-manufacture-of-a-controlled-substance counts to the jury. He contends that the State’s evidence merely amounted to a prima facie case of constructive possession and that it was not affirmatively proven that he was in exclusive control of the materials law-enforcement officers found in his residence.

“ ‘ “In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.” ’ Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala. 1985). ‘ “The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.” ’ Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). ‘ “When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.” ’ Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). ‘The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).
“ ‘The trial court’s denial of a motion for judgment of acquittal must be reviewed by determining whether there was legal evidence before the jury at the time the motion was made from which the jury by fair inference could find the defendant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978). In applying this standard, this court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Cr.App.1983). When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for judgment of acquittal does not constitute error. McConnell v. State, 429 So.2d 662 (Ala.Cr.App.1983).”

Gavin v. State, 891 So.2d 907, 974 (Ala.Crim.App.2003) (quoting Ward v. State, 610 So.2d 1190, 1191 (Ala.Crim.App.1992)). See also Ward v. State, 814 So.2d 899, 908-10 (Ala.Crim.App.2000).

“ ‘Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.’ White v. State, 294 Ala. 265, 272, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975). ‘Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused.’ Cochran v. State, 500 So.2d 1161, 1177 (Ala.Cr.App.1984), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So.2d 1179 (Ala.1985).”

White v. State, 546 So.2d 1014, 1017 (Ala.Crim.App.1989).

As for Hollaway’s claim that the verdict was against the great weight of the evidence, it is not the province of this court to reweigh the evidence presented at trial. Johnson v. State, 555 So.2d 818, 820 (Ala. Crim.App.1989). A verdict rendered on conflicting evidence is considered conclusive on appeal, provided the State establishes a prima facie case. See, e.g., Jones v. State, 719 So.2d 249, 255 (Ala.Crim.App.1996), aff'd, 719 So.2d 256 (Ala.1998)(“Any issues regarding the weight and credibility of the evidence are not reviewable on appeal once the state has made a prima facie case.”).

The record contains ample evidence from which the jury could, by fair inference, find Hollaway guilty of the charged offenses. In his signed statement given to Investigator England, Hollaway admitted that the narcotics, the items used in the manufacture of methamphetamine, and the precursor chemicals found in his residence belonged to him. The methamphetamine was found in a safe in Hollaway’s bedroom along with 58 Xanax pills, marijuana, and a glass pipe. At trial, Hollaway asserted that all of the contraband belonged to him. Hollaway was the only individual who had the key or the combination to the safe. Clearly, the trial court did not err when it allowed the issue of Hollaway’s guilt to be submitted to the jury.

II.

Hollaway also claims that the constitutional prohibition against double jeopardy precluded his separate conviction for multiple offenses of possession of a controlled substance, methamphetamine, and Xanax, because the offenses arose out of one single act of possession.

In Straughn v. State, 876 So.2d 492, 508 (Ala.Crim.App.2003), this Court recognized that although certain double-jeopardy claims implicate the jurisdiction of the trial court—and are not subject to waiver—other double-jeopardy claims are singularly constitutional in nature and, thus, may be waived. In Straughn, we held that although the evidence established that the marijuana found on Straughn’s property and the marijuana found growing at a neutral site were part of a single act of possession, Straughn’s failure to challenge at trial whether the evidence was sufficient to establish separate acts of possession of marijuana resulted in a waiver of his double-jeopardy claim. 876 So.2d at 508-09. Unlike Straughn, however, the methamphetamine and Xanax here were found in the same location—Hollaway’s safe—at the same time. Moreover, although the indictment purported to allege separate offenses, it instead alleged alternative methods of committing the same offense.

In Ex parte Darby, 516 So.2d 786 (Ala.1987), the Alabama Supreme Court recognized the basic principle that a single crime cannot be divided into two or more offenses and thereby subject the perpetrator to multiple convictions for the same offense. The Supreme Court relied on this Court’s decision in Vogel v. State, 426 So.2d 863, 882 (Ala.Crim.App.1980), aff'd in part, writ quashed in part, 426 So.2d 882 (Ala.1982), in which we stated that “[ojnce the presence of the first controlled substance is proven, the offense is complete, and the presence of other controlled substances at the same time does not act to split the possession.” Because the statutory requirements constituting possession of a controlled substance pursuant to § 13A-12-212, Ala.Code 1975, contain the same elements for possession of methamphetamine and possession of Xanax, and both substances were seized by virtue of the same search, the possession of both drugs represented one single act of possession. Here, the unit of prosecution was the act of possessing any controlled substance, and the fact that law-enforcement officials discovered two different controlled substances in Hollaway’s safe did not establish evidence of two separate offenses. By splitting this single act into separate offenses, Hollaway’s double-jeopardy rights were violated, and the jurisdiction of the trial court to enter a judgment on both counts was implicated. See, e.g., Ex parte Robey, 920 So.2d 1069, 1071 (Ala.2004); McPherson v. State, 933 So.2d 1114 (Ala.Crim.App.2005). Accordingly, our holding in Straughn is not applicable to this case.

Based on the foregoing, we remand this case to the trial court with instructions that that court enter a new order adjudging Hollaway guilty of the single offense of unlawful possession of a controlled substance and sentence him for that single offense. See Ex parte Rice, 766 So.2d 143, 152-53 (Ala.1999). We further remand this case for the trial court to set aside that part of its order imposing a $1,000 fine pursuant to the Demand Reduction Assessment Act for the attempted-manufacture-of-a-controlled-substance conviction. The Demand Reduction Assessment Act, § 13A-12-281(a), Ala.Code 1975, provides:

“In addition to any disposition and fine authorized by Sections 13A-12-202, 13A-12-203, 13A-12-204, 13A-12-211, 13A-12-212, 13A-12-213, 13A-12-215, and 13A-12-231, or any other statute indicating the dispositions that can be ordered for such a conviction, every person convicted of a violation of any offense defined in the sections set forth above, shall be assessed for each such offense an additional penalty fixed at one thousand dollars ($1,000) for a first offense and two thousand dollars ($2,000) for a second or subsequent offense.”

Because this section does not authorize an additional penalty for persons convicted of violating or attempting to violate § 13A-12-218, the trial court should not have assessed this fine in connection with Holla-way’s conviction for the attempted manufacture of a controlled substance. Due return shall be filed with this Court within 28 days of the date of the opinion.

REMANDED WITH INSTRUCTIONS.

McMILLAN, SHAW, and WELCH, JJ., concur. BASCHAB, P.J., concurs in the result.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . During the previous search, Hollaway had given law enforcement officers the combination to his safe. Precursor chemicals were found in the safe during the initial search.


author: BASCHAB, Presiding Judge.

text:
    Willie Thomas BURTON, Jr. v. STATE of Alabama.
    CR-05-1879.
    Court of Criminal Appeals of Alabama.
    June 29, 2007.
    Rehearing Denied Aug. 24, 2007.

      Charles H. Pullen, Huntsville, for appellant.
    Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
   BASCHAB, Presiding Judge.

The appellant, Willie Thomas Burton, Jr., was indicted for the capital offense of arson-murder. He was convicted of reckless murder, a violation of § 13A-6-2(a)(2), Ala.Code 1975, and first-degree arson, a violation of § 13A-7-41, Ala.Code 1975. The trial court sentenced him, as a habitual offender, to serve consecutive terms of imprisonment for life without the possibility of parole. See § 13A-5-9(c)(3), Ala. Code 1975. The appellant filed a motion for a new trial and an amended motion for a new trial, which the trial court summarily denied. This appeal followed.

The State presented evidence that the appellant and the victim, Teresa Burton, were married; that the appellant had previously been violent toward the victim; that emergency personnel received a call about a fire at the Burton residence at 5:47 p.m. on March 25, 2004; that the appellant pulled the victim out of the house, put out the fire that was on her, and left; that the victim’s clothes were damaged by the fire, but the appellant’s were not; that the victim sustained burns to approximately 96 percent of her body; and that, after receiving medical treatment, the victim died as a result of the burns. An autopsy revealed that the victim’s blood alcohol content was .123.

Neighbors and medical personnel testified that the victim repeatedly stated that the appellant had thrown gasoline on her and set her on fire. One neighbor testified that, when the appellant came out of the house with the victim, he said, “ ‘I’m sorry. I’m sorry. I burnt her.’ ” (R. 846.)

Jimmy Townsend, who worked with the appellant, testified that the appellant telephoned him the next morning and asked him for a ride to the police station. At that time, the appellant said that he “F’d up” and that

“him and his wife got into an argument. They had been drinking that night. And the gas can was sitting on the front porch. And he grabbed the gas can and throwed it on her, and throwed the gas on her and lit her up. And he burnt himself on both arms trying to put her out.”

(R. 939.) Townsend testified that the appellant told him they were arguing because the victim had told him “that she had a man could F better than he could.” (R. 945.) Finally, he testified that the appellant’s clothes were smoky and that he had burns on each arm.

While the appellant was speaking to law enforcement officers about the incident, the following occurred:

“SMITH: And I’m an investigator with the police department and uh you already know Investigator Sharp.
“BURTON: Yes sir.
“SMITH: Ok, and (SKIPS) a lawyer one will be appointed to represent you before any questioning if you wish. With these rights in mind, do you wish to talk to Investigator Sharp and myself?
“BURTON: Yes sir.
“SMITH: Ok uh, (SKIPS) it is my understanding or let me ask you something else before we get started. Right now, I mean at this moment you are not, are you under the influence of any alcohol?
“BURTON: (NOISES) we was drunk. (NOISES) whiskey.
“SHARP: Who was we?
“BURTON: My wife and I.
“SHARP: Ok, so tell us about the—
“BURTON: We was man we got into a heated argument. I jumped up right there and got a gas can. I didn’t know no lot of gas was in it and when I come in the door she hit the gas can and it doused on her. How it ignited, I couldn’t tell you. Me and her both was drunk. Had to be a cigarette in the ashtray or something. As far as I don’t remember nothing else. But I remember when it ignited it got on her and I went over there and tried to put it out. I put her out and I drug her out of the house.
“SHARP: Why did you go get a gas can?
“BURTON: Why did I go get one? I just, it was just a heat of the moment thing. I ain’t had no intention of doing nothing with it.
“SMITH: And what did you do with the gas can?
“BURTON: I came in the house with it and she hit it.
“SMITH: Uh huh. She hit it?
“BURTON: Yes sir, she hit the gas can.
“SMITH: Hit it like, hit it hit it like this?
“BURTON: Tried to take it away from me. Me and her was wrestling with it. Yeah.
“SMITH: Ok, ok. You brought it in the house.
“BURTON: Yes sir, I brought it in the house.
“SMITH: Where did you get it from?
“BURTON: It was out there out beside my right around the corner of the house.
“SMITH: Did you open the spout or anything on it.
“BURTON: All I remember is grabbing it up.
“SMITH: So does she smoke, your wife?
“BURTON: Yes sir. Both of us smoke.
“SMITH: Ok, ok. But right now you are not under the influence of alcohol, is that correct?
“BURTON: No sir.
“SMITH: Are you under the influence of any drugs or anything?
“BURTON: No sir.
“SMITH: Ok, are you talking with us with a clear (SKIPS)
“BURTON: (SKIPS)
“SMITH: Ok, so y’all were drinking yesterday?
“BURTON: Drinking heavy.
“SMITH: Is there anything going on in your life I mean that is causing you stress or anything between you and your wife?
“BURTON: Oh, yeah she just recently came back, you know she had left for a couple of weeks. She had recently came back and we got to arguing.
“SHARP: What was the argument about?
“BURTON: About some guy she was supposed to be messing with.
“SHARP: What’s his name?
“BURTON: She said his name was Cedric.
“SMITH: Did she tell you this or did you find it out?
“BURTON: Yeah, she told me this.
“SMITH: Is this what y’all was arguing about last night?
“BURTON: Yes sir.
“SHARP: How long have you been married?
“BURTON: Twenty, twenty something years. About twenty one or twenty two years.
“SHARP: Have you had arguments before?
“BURTON: Yes sir.
“(SKIPS)
“SHARP: So tell us about what happened when (SKIPS)
“BURTON: The gas can she grabbed it and we was wrestling with it.
“SHARP: Ok, why was she wrestling with it?
“BURTON: I guess she thought I was fixing to pour it on. She didn’t, I mean she didn’t want me to pour it on her.
“SHARP: She didn’t want you to pour it on her?
“BURTON: Naw, un huh. I had the can I told her I am fixing to dash the gas on you and she grabbed it.
“SHARP: So you said that you were going to put the gas on her?
“BURTON: I told her that.
“SHARP: And you remember saying that?
“BURTON: Yeah.
“SMITH: What made you say that, was you upset about the Cedric situation?
“BURTON: Yes sir.
“SHARP: (SKIPS)
“BURTON: Naw I got deep burns from putting her out.
“SHARP: Ok, but when she knocked it out of your hands, did any gas get on you?
“BURTON: Yeah. Got on, I guess some of it got on my hands.
“SHARP: On your hands, nowhere else?
“(SKIPS)
“SMITH: When you dragged her out of the house.
“BURTON: Yeah I dragged her out, I put her out, drug her out of the house. I panicked man I panicked and I took off I was scared to death.
“SMITH: What direction did you take off?
“BURTON: I went, I went back at the house and got in that creek.
“SMITH: So you went to the back of your house?
“BURTON: Yes sir, yes sir.
“SMITH: Is there a fence in your yard or anything?
“BURTON: Yes sir, yes sir.
“SMITH: Did you go through a gate or over the fence?
“BURTON: Over the fence.
“SMITH: And you went, where did you go from there?
“BURTON: Aw the creek go a long way down there, I walked to the end of the creek and just sat there. Like to froze to death. I was wet.
“SHARP: Let me ask you this sir. The house was on fire, your wife was burned. Did you call the fire department or HEMSI.
“BURTON: My neighbor did, I, I. He come out there and I told him I said would you please call 911.
“SMITH: (SKIPS) at length and uh and y’all got (SKIPS)
“BURTON: I was upset, we was drinking man, we was highly intoxicated. We both were.
“SMITH: Ok.”

An arson investigation revealed that the point of origin of the fire was in the den by a couch; that there was a gas can between six and twelve inches away; and that the fire was incendiary, or set by human hands by a person who knew a fire should not be set there, whether intentional or not. There was evidence of gasoline on the victim’s clothing and on the carpet from the den, but there was not any evidence of cigarette smoking materials in the den. An arson investigator and a fire debris scientist testified that, in their opinion, a cigarette would not have burned at a high enough temperature to ignite the gasoline.

The appellant argues that the jury’s verdicts finding him guilty of reckless murder and first-degree arson were inconsistent and mutually exclusive. Specifically, he contends that “[t]he jury, in finding that [he] acted with recklessness, as to the universal malice murder charge, implicitly acquitted [him] of acting with intent as to the first degree arson charge.” (Appellant’s brief at p. 13.)

The Alabama Supreme Court addressed a similar situation and discussed inconsistent and mutually exclusive verdicts in Heard v. State, [Ms. 1041265, January 12, 2007] — So.2d-, - (Ala.2007), as follows:

“Heard was found guilty of more than one offense based on crimes against one victim.
“Confusion exists throughout Alabama courts over the difference between inconsistent verdicts and mutually exclusive verdicts. ‘The general rule is that there need be no rational compatibility between the verdicts on the several counts of an indictment. The exception to this rule is where the jury returns multiple convictions as to crimes which are mutually exclusive of each other. Conway v. State, 489 So.2d 641, 642 (Ala.Cr.App.1986) .... ’ Grikis v. State, 552 So.2d 187, 187 (Ala.Crim.App.1989). This seemingly straightforward rule has been somewhat difficult to apply because of confusion over the meaning of the terms ‘inconsistent verdicts’ and ‘mutually exclusive verdicts.’
“... [M]utually exclusive verdicts are the result of two positive findings of fact that cannot logically coexist. In other words, it is legally impossible for the State to prove the elements of both crimes. In order to determine whether the guilty verdicts are mutually exclusive as a matter of law, the alleged underlying offenses or acts must be carefully scrutinized. The two guilty verdicts are not mutually exclusive if no element of one crime necessarily negates an element of the other.
“Mutually exclusive verdicts exist when a guilty verdict on one count logically excludes a guilty verdict on another count. In contrast, inconsistent ver-diets can exist where there is a verdict of guilty and another of not guilty, as when there are two guilty verdicts that are not mutually exclusive. Inconsistent criminal verdicts are permissible; mutually exclusive verdicts are not.
“There has been much confusion as to whether the verdicts returned against Heard were mutually exclusive or merely inconsistent. Heard was convicted of both capital murder and felony murder. According to Alabama law, a defendant must have the intent to kill in order to be found guilty of a capital offense. § 13A-5-40(b), Ala.Code 1975; Ex parte Woodall, 730 So.2d 652, 657 (Ala.1998)(‘No defendant can be found guilty of a capital offense unless he had an intent to kill, and that intent to kill cannot be supplied by the felony-murder doctrine.’). Felony murder, on the other hand, does not require the specific intent to kill; it requires only the intent to commit the underlying felony. § 13A-6-2(a)(3), Ala.Code 1975; Mitchell v. State, 706 So.2d 787 (Ala.Crim.App.1997). The absence of an intent to kill, however, is not necessarily an element of felony murder, as contrasted with the intent to kill, which is an element of capital murder.
“In other words, a felony-murder conviction does not require proof that the defendant unintentionally killed the victim, only that the defendant intended to commit the underlying felony. Therefore, it is possible that a defendant intended to kill the victim (the element necessary for the capital conviction) while at the same time intending to commit an underlying felony (the element necessary for the felony-murder conviction). Therefore, the most that can be said of the verdicts finding Heard guilty both of capital murder and of felony murder is that they may be merely inconsistent. These two verdicts are not mutually exclusive; they do not contain mutually exclusive essential elements.
“Because these verdicts are not mutually exclusive, the verdicts should stand; ‘[t]hat the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation of inquiry into such matters.’ Dunn [v. United States], 284 U.S. [390,] 394 [ (1932) ].”

With regard to reckless murder, § 13A-6-2(a), Ala.Code 1975, provides:

“A person commits the crime of murder if he or she does any of the following:
“(2) Under circumstances manifesting extreme indifference to human life, he or she recklessly engages in conduct which creates a grave risk of death to a person other than himself or herself, and thereby causes the death of another person.”

With regard to first-degree arson, § 13A-7-41(a), Ala.Code 1975, provides:

“A person commits the crime of arson in the first degree if he intentionally damages a building by starting or maintaining a fire or causing an explosion, and when:
“(1) Another person is present in such building at the time, and
“(2) The actor knows that fact, or the circumstances are such as to render the presence of a person therein a reasonable possibility.”

As was the case in Heard, the appellant was convicted of more than one offense based on crimes committed against one victim. To be guilty of arson, he must have had the intent to start or maintain a fire. See Henderson v. State, 715 So.2d 863 (Ala.Crim.App.1997); Minnis v. State, 690 So.2d 521 (Ala.Crim.App.1996). “The doctrine of universal malice, depraved heart murder, or reckless homicide manifesting extreme indifference to human life is intended to embrace those cases where a person has no deliberate intent to kill or injure any particular individual.” Haney v. State, 603 So.2d 368, 399 (Ala.Crim.App.1991), aff'd, 603 So.2d 412 (Ala.1992).

Assuming, without deciding, that the jury’s verdicts in this case were inconsistent, we conclude that they were not mutually exclusive. We have carefully examined the appellant’s acts and the offenses for which the jury found him guilty. Based on that review, we find that it was not legally impossible for the State to prove the elements of both offenses because no element of either offense negates an element of the other. Even though reckless murder involves a situation in which the defendant does not intend to kill or injure another person, it does not require that none of his actions be intentional. For example, it does not exclude the possibility that he committed another intentional act, such as setting a fire. Thus, the jury could have reasonably concluded that the appellant acted with extreme indifference to human life but did not intend to kill or injure the victim when he threw gasoline around the den; that the appellant acted intentionally when he started the fire; and that the victim died as a result of both of the appellant’s actions. Therefore, the verdicts were not mutually exclusive. Cf. Martinez v. State, [Ms. CR-05-1669, March 2, 2007] — So.2d -, -- (Ala.Crim.App.2007) (opinion on return to remand) (applying Heard and holding that the jury’s verdicts were mutually exclusive because a single act cannot be both negligent and reckless). Accordingly, the appellant’s argument is without merit, and we affirm the trial court’s judgment.

AFFIRMED.

McMILLAN, SHAW, WISE, and WELCH, JJ., concur.

      . Because inconsistent verdicts are permissible according to Heard, we need not determine whether the verdicts in this case were inconsistent.