author: PITTMAN, Judge.

text:
    Craig JENKINS and Jenkins Savings Systems, Inc., d/b/a A-Plus Mortgage, Ltd. v. Victoria COVINGTON and Vivian Covington.
    2040948.
    Court of Civil Appeals of Alabama.
    March 10, 2006.
    Tiffany B. McCord, Montgomery, for appellants.
    Submitted on appellants’ brief only.
   PITTMAN, Judge.

In June 2003, Victoria Covington and Vivian Covington sued Craig Jenkins and Jenkins Savings Systems, Inc., d/b/a A-Plus Mortgage, Ltd. In their one-count complaint, the plaintiffs alleged that the defendants had converted to their own use the proceeds of a check made payable to the plaintiffs in the amount of $7,732.24; the plaintiffs sought compensatory and punitive damages based on that claim. The defendants, through counsel, answered the complaint with a general denial. In July 2004, the trial court held a scheduling conference, which counsel for both the plaintiffs and the defendants attended. After that conference, the trial court issued an order stating that a pretrial conference would take place on January 24, 2005, and that a trial would take place on February 7, 2005. Copies of that order were provided to counsel for both the plaintiffs and the defendants.

The cause was called for trial on February 7, 2005, as scheduled; however, neither the defendants nor their counsel appeared at trial. A default judgment was entered in favor of the plaintiffs at that time, and the trial court permitted counsel for the plaintiffs to present evidence of damages. During that hearing, the plaintiffs testified that they had received only $4,030 of the proceeds of a check in the amount of approximately $7,732.24 and stated that Jenkins had told them that $3,500 of the proceeds had been diverted in order to defray the plaintiffs’ costs to enter a program that would allow biweekly mortgage-note repayments; Vivian Cov-ington testified that no such program actually existed.

At the conclusion of the presentation of evidence, the trial court and counsel for the plaintiffs made the following remarks (emphasis added):

“THE COURT: ... All right. What’s your claim?
“[Plaintiffs’ counsel]: Your Honor—
“THE COURT: Now, we have an answer filed, so we assume [the defendants] were served.
“[Plaintiffs’ counsel]: They were served, Your Honor.
“THE COURT: Okay.
“[Plaintiffs’ counsel]: And they filed an answer and failed to appear in court.
“THE COURT: Okay. [Counsel for the defendants] appeared at the scheduling conference?
“[Plaintiffs’ counsel]: He was here at the scheduling conference.
“THE COURT: All right. Now, what are you asking for?
“[Plaintiffs’ counsel]: I just wanted to point out to the Court that Mr. Jenkins is being sued for basically the same fact situation in [another action pending in the same circuit, but before a different judge]. I just found out last week.
“THE COURT: I just want to know what you want to — whether you’re asking for a judgment, and for what amount.
“[Plaintiffs’ counsel]: We had asked for — We had asked for $15,000 from Mr. Jenkins. But—
“THE COURT: Well, 3,000 plus dollars—
“[Plaintiffs’ counsel]: Plus interest.
“THE COURT: Okay. Well, how much is that?
“[Plaintiffs’ counsel]: That would be— bring it to about 4 or $5,000.
“THE COURT: Well, tell me what it is.
“[Plaintiffs’ counsel]: It would be 4,000 — I believe $4,984.
“THE COURT: — $84. $¿,984 on the complaint
“[Plaintiffs’ counsel]: On the complaint.
“THE COURT: That’s the amount plus interest.
“[Plaintiffs’ counsel]: Plus interest; the state’s rate of interest.
“THE COURT: All right. Now, this was conversion?
“[Plaintiffs’ counsel]: This was conversion, Your Honor.
“THE COURT: And fraud.
“[Plaintiffs’ counsel]: I would like to amend the complaint, having found this information out which establishes a pattern and practice of doing this.
“THE COURT: Well, I’ll allow you to amend it to fraud. Go ahead and amend it.
“[Plaintiffs’ counsel]: I would like to amend the complaint to include a count of fraud.
“THE COURT: How much are you asking for on fraud?
“[Plaintiffs’ counsel]: We would ask for a minimum of $45,000 on the fraud count.
“THE COURT: The Court is going to enter a judgment of $50,000 on the fraud count; $4,984 on the underlying count. You go draw the order ... and I’ll sign it.”

Later that day, counsel for the defendants filed what he termed a “motion to reconsider” the trial court’s apparent intended judgment in which he alleged that he had not been retained until the month before the scheduled trial, that he had been unaware of the trial date and had had a scheduling conflict, and that he needed further time to properly represent the defendants’ interests. Four days later, the plaintiffs filed a response that pointed out that defendants’ counsel had been involved in the case since the filing of the answer in August 2003, averred that defendants’ counsel had attended the scheduling conference, and contended that 17 months was “ample time to prepare” for trial.

On February 22, 2005, while the defendants’ “motion to reconsider” remained pending and although no final judgment had yet been entered in the cause, counsel for the defendants filed a notice. of appeal based upon the trial court’s February 7, 2005, announcement of its intended judgment. Of course, the designation in the notice of the appropriate appellate court as “the Circuit Court” was erroneous. See State of Alabama ex rel. S.L. v. S.W., 700 So.2d 1369, 1371 (Ala.1997) (“it is axiomatic that a court cannot hear an appeal from a judgment of that same court”). However, Rule 3(c), Ala. R.App. P., provides that, when a notice of appeal does not designate .the proper appellate court, “such designation shall be treated as a clerical mistake and corrected accordingly” and that “[t]he necessary clerical steps shall be taken to docket the appeal and to file the record and briefs in the appropriate appellate, court.” Moreover, under Rule 4(a)(4), Ala. R.App. P., “[a] notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or- order shall be treated as filed after the entry and on the day thereof.” Because the trial court entered a final judgment in favor of the plaintiffs and against the defendants and awarding damages in the amount of $54,984 on April 28, 2005, 17 days after that court had entered an order denying the defendants’ “motion to reconsider,” we conclude that the defendants’ appeal was perfected on April 28, 2005, and that that appeal was within the jurisdiction of the Alabama Supreme Court (see Ala.Code 1975, §§ 12-2-7 and 12-3-10). We have jurisdiction because the appeal was subsequently transferred to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Under Rule 60(b), Ala. R. Civ. P., leave to make a motion seeking relief from a trial court’s judgment “need not be obtained from any appellate court except during such time as an appeal from the judgment is actually pending before such court ” (emphasis added). Despite the defendants’ previously filed notice of appeal, new counsel for the defendants appeared in the trial court and, on June 7, 2005, purported to file a motion pursuant to Rule 60(b), Ala. R. Civ. P., seeking relief from the trial court’s judgment of April 28, 2005. The trial court entered an order purporting to deny that motion on July 14, 2005, and the defendants filed a second notice of appeal as to that order. However, because the notice of appeal previously filed by the defendants in the cause had ripened on April 28, 2005, when the trial court entered a judgment in conformity to its earlier announcement in' open court, “an appeal from the judgment [wa]s actually pending” at the time that the defendants sought Rule 60(b) relief. Because an appeal was pending, it was incumbent upon the defendants to obtain leave from the appropriate appellate court (ie., the Alabama Supreme Court) in order for the defendants to file a valid motion under Rule 60(b) when they did and in order for the trial court to have jurisdiction to rule upon that motion. E.g., Brown v. Foster, 785 So.2d 1141, 1141-42 (Ala.Civ.App.2000). To the extent that the defendants have sought review of the correctness of the trial court’s ruling on the motion for relief from the judgment, we conclude that the trial court did not have jurisdiction to consider the defendants’ Rule 60(b) motion at the time it acted. Id. As a result, only the April 28, 2005, default judgment is properly presented for review.

However, it is a fundamental principle of appellate procedure, one that we note ex mero motu, that an appeal will not properly lie from a void judgment entered by a trial court. See Underwood v. State, 439 So.2d 125, 128 (Ala.1983) (“a void judgment will not support an appeal”). In Continental Casualty Co. v. Barlar, 55 Ala.App. 441, 316 So.2d 690 (Civ.App.1975), this court addressed the validity of a judgment when, as in this case, an amendment to the complaint had been made, but had not been served upon the defendant, before the entry of a default judgment that awarded relief above and beyond the relief originally requested. After noting Rule 54(c), Ala. R. Civ. P., which provides that “[a] judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment,” we held that the default judgment entered in Barlar “was for an amount exceeding that claimed in the original complaint,” that the judgment “was beyond the authority of the court to render,” and that because the trial court had exceeded its authority its “indivis[i]ble judgment [wa]s void in its entirety.” 55 Ala.App. at 443, 316 So.2d at 692; accord, Caver v. Caver, 410 So.2d 902, 904 (Ala.Civ.App.1982) (“A party should have the right to assume that a court’s judgment following his default will not extend beyond the issues presented by the complaint and the relief requested therein. He is deprived of his day in court if a default judgment is taken against him which neither comports with the issues stated nor with the relief sought.”).

Similarly, in this case, the record reveals that the trial court allowed the plaintiffs, at the damages hearing conducted after the defendants had been found to be in default, to amend their complaint so as to state a fraud claim for the first time and entered a default judgment awarding $50,000 in damages on that claim. In doing so, the trial court entered a default judgment affording relief that was different in kind from that prayed for by the plaintiffs in the demand for judgment, and therefore under Barlar the trial court’s judgment is void in its entirety. We dismiss the defendants’ appeal with instructions to the trial court to set aside the default judgment in favor of the plaintiffs and for that court to conduct further proceedings consistent with this opinion.

APPEAL DISMISSED WITH INSTRUCTIONS.

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


source: Caselaw Access Project

author: BRYAN, Judge. PITTMAN, Judge, THOMPSON, Judge,

license: Public Domain

text:
    TENET HEALTH SYSTEM MEDICAL, INC. v. Susan ROBERTS.
    2040679.
    Court of Civil Appeals of Alabama.
    March 10, 2006.
    Kyle L. Kinney and John B. Welsh of Gaines, Wolter & Kinney, Birmingham, for appellant.
    David L. Selby II and Angela C. Shields of Kee & Selby, LLP, Birmingham, for appellee.
   BRYAN, Judge.

Tenet Health System Medical, Inc. (“Tenet Health”), appeals a workers’ compensation judgment insofar as it purported to retain the trial court’s jurisdiction over the case to address any future changes regarding the disability of former Tenet Health employee Susan Roberts. We reverse the judgment insofar as it purported to retain the trial court’s jurisdiction over the case, and we remand the cause.

In June 1996, Roberts filed a complaint against Tenet Health seeking workers’ compensation benefits. Roberts’s complaint alleged that she had contracted hepatitis C in an accident while working for Tenet Health. The complaint further alleged that Roberts had suffered permanent disability as the result of her having contracted hepatitis C.

In December 1998, Roberts and Tenet Health entered into a settlement agreement regarding Roberts’s workers’ compensation claim. The settlement agreement provided, in pertinent part:

“In order ... to settle this claim which is disputed as to liability and as to the extent of [Roberts’s] injury, [Tenet Health] and [Roberts] have entered into a compromise settlement wherein [Tenet Health] has agreed to pay and [Roberts] has agreed to accept the sum of Four Hundred, Twenty-Seven and 00/100 Dollars ($427.00) per week as long as [Roberts] is permanently and totally disabled as defined by the Alabama Worker’s Compensation Act. Further, the parties agree that [Tenet Health] shall be responsible for future medical and surgical treatment and supplies directly relating to or arising out of [Roberts’s] accident and injury....”

(Emphasis added.) The settlement agreement was approved by the trial court in December 1998.

In February 2004, Tenet Health petitioned the trial court to reopen the case and to terminate Roberts’s workers’ compensation disability benefits. Tenet Health alleged that Roberts was “no longer permanently and totally disabled as defined by the Alabama Worker’s Compensation Act” and that, “in accordance with the Settlement Agreement, [Roberts’s workers’ compensation] benefits are due to be terminated.” The case proceeded to trial in February 2005.

On March 9, 2005, the trial court entered a judgment terminating Roberts’s workers’ compensation benefits. The trial court in its judgment found that Roberts had held several full-time jobs after leaving her employment with Tenet Health. The judgment stated, in pertinent part:

“The question before the court is not whether Ms. Roberts’[s] terrible disease has been cured. It has not. The question at this time is whether she has obtained gainful employment while receiving permanent total disability benefits .... It is clear that she has been fortunate enough to be able to work.
“Under these circumstances, it is clear that the law requires the court to order the termination of the periodic benefits. If [Roberts] again becomes totally disabled, the court will retain jurisdiction to reinstate the benefits to which she is entitled.
“The court retains jurisdiction over this case to address any changes in [Roberts’s] condition. [Tenet Health] remains responsible for all medical benefits arising from [Roberts’s] compensa-ble illness.”

Tenet Health timely appealed to this court. On appeal, Tenet Health argues that the trial court in its judgment erred by purporting to retain jurisdiction over the case. Tenet Health maintains that the trial court’s express retention of jurisdiction was “ineffective and contrary to settled Alabama law.” Because this appeal involves a purely legal issue, our review of the trial court’s judgment is without a presumption of correctness. See § 25-5-81(e)(1), Ala.Code 1975 (“In reviewing the standard of proof set forth herein and other legal issues, review ... shall be without a presumption of correctness.”).

Tenet Health argues that our supreme court’s opinion in Ex parte Kimberly-Clark Corp., 779 So.2d 178 (Ala.2000), warrants reversal in the present case. In Kimberly-Clark, the worker was injured within the line and scope of his employment when a pipe ruptured, causing a caustic substance to splash on the worker. 779 So.2d at 179. The caustic substance severely burned the worker’s skin and caused substantial injury to his eyes. Id. Following a hearing, the trial court found that the worker had suffered a 100% loss of use of his right eye and had suffered a permanent injury to his left eye, resulting in a partial loss of vision. Id. The trial court entered a judgment awarding the worker compensation for a 20% permanent partial disability. Id. The trial court’s judgment stated: “ ‘Given the clear potential for the condition of the Plaintiff to deteriorate and the fact the injuries of Plaintiff may ultimately result in permanent blindness, the Court hereby expressly retains jurisdiction over this matter and reserves the right to modify this Order.” ’ 779 So.2d at 179.

The worker later petitioned the trial court to modify its judgment and asked for permanent and total disability benefits. Id. The worker contended that the trial court had retained jurisdiction over the case and had reserved the right to modify the judgment. Id. After the trial court set a date for an evidentiary hearing, the employer petitioned this court, and later the supreme court, for a writ of prohibition directing the trial court not to hold the evidentiary hearing. 779 So.2d at 180. In analyzing the effect of the provision of the trial court’s judgment purporting to retain jurisdiction over the case, our supreme court stated:

“In language unique to Alabama, the original [workers’ compensation] act provided that the decision of the judge hearing the claim would be conclusive, 1919 Ala. Acts, No. 245, p. 206, at 224-25, § 24, and that any ‘[subsequent proceedings thereon shall only be for the recovery of moneys thereby determined to be due.’ 1919 Ala. Acts, No. 245, at pp. 227-28, § 28....
“In 1975, the Legislature amended § 24 of the original act to eliminate the power of the court unilaterally to modify settlements based on the postjudgment change of an employee’s condition, so that now a settlement may be modified only by agreement of the parties, with court approval. See § 25-5-84, Ala. Code 1975. At that time, the Legislature enacted a new provision allowing reopening of permanent-total-disability cases. See § 25-5-57(a)(4)b., Ala.Code 1975. This statute applies only when the employer petitions the trial court to reduce an award of permanent-total-disability benefits.”

779 So.2d at 180-81. In granting the petition and issuing the writ prohibiting the trial court from reopening the worker’s case in Kimberly-Clark, the supreme court concluded that “[i]t is for the Legislature, and not this Court, to create a remedy for reopening a judgment at the behest of the employee, as it has done for the employer through § 25 — 5—57(a)(4)b.” 779 So.2d at 182.

Tenet Health argues that Kimberly-Clark is controlling in the present case. As Kimberly-Clark points out, § 25-5-57(a)(4)b., Ala.Code 1975, provides that an employer, but not an employee, may petition the trial court to reopen a workers’ compensation judgment awarding or approving compensation for permanent and total disability. Section 25-5-57(a)(4)b. provides, in pertinent part:

“At any time, the employer may petition the court that awarded or approved compensation for permanent total disability to alter, amend, or revise the award or approval of the compensation on the ground that as a result of physical or vocational rehabilitation, or otherwise, the disability from which the employee suffers is no longer a permanent total disability and, if the court is so satisfied after a hearing, it shall alter, amend, or revise the award accordingly.”

Roberts argues that Kimberly-Clark and § 25-5-57(a)(4)b. are not controlling in the present case because, Roberts says, the present case involves an underlying settlement agreement, the terms of which allow the case to be reopened to address changes in Roberts’s condition. The dis-positive issue is whether the language of the settlement agreement is sufficient to allow the trial court to retain jurisdiction to allow Roberts to reopen the case should her condition change.

The settlement agreement provided that Tenet Health would pay Roberts $427.00 per week for “as long as [Roberts] is permanently and totally disabled as defined by the Alabama Worker’s Compensation Act.” This provision of the settlement agreement anticipated that Roberts at some point might be found to be less than permanently and totally disabled. However, this provision does not address whether Roberts would be allowed to reopen the case in the event — as is the situation here — she were to be found by the trial court to be less than permanently and totally disabled. The settlement agreement does not expressly allow Roberts to reopen the case and, as Kimberly-Clark illustrates, there is no statutory authority allowing Roberts to do so under these circumstances. Therefore, the trial court erred in purporting to retain jurisdiction to allow Roberts to reopen the case.

As Roberts points out, hepatitis C is an incurable disease, and the possibility remains that she will someday be unable to obtain gainful employment due to the disease. Although we are sympathetic to her situation, we cannot construe the settlement agreement to include language that the agreement does not contain, and the Alabama Workers’ Compensation Act does not provide a remedy allowing Roberts to reopen her case under these circumstances. As our supreme court in Kimberly-Clark stated, “It is for the Legislature, and not this Court, to create a remedy for reopening a judgment at the behest of the employee, as it has done for the employer through § 25-5-57(a)(4)b.” 779 So.2d at 182. Accordingly, we reverse the trial court’s judgment insofar as it purported to retain the trial court’s jurisdiction over the case.

REVERSED AND REMANDED.

CRAWLEY, P.J., concurs.

PITTMAN, J., concurs specially, with writing.

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

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

PITTMAN, Judge,

concurring specially.

The provision of the settlement agreement stating that Roberts was to receive $427 per week “as long as [Roberts was] permanently and totally disabled” was, in effect, merely declaratory of the employer’s right to reopen conferred by Ala.Code 1975, § 25-5-57(a)(4)b. Under Ex parte Kimberly-Clark Corp., 779 So.2d 178 (Ala. 2000), a trial court’s retention of jurisdiction to modify any award of permanent-disability compensation under the Act, other than to modify a permanent-total-disability award on a petition of the employer under § 25-5-57(a)(4)b., is improper. Moreover, the main opinion correctly, if implicitly, rejects Roberts’s contention that the trial court’s judgment is not final. The judgment, although improperly envisioning the initiation of new proceedings in the event of a change in Roberts’s medical condition, is final in that it “sufficiently ascertains and declares the rights of the parties.” See Mike Makemson Logging v. Colburn, 600 So.2d 1049, 1050 (Ala.Civ.App.1992). I therefore concur in the main opinion.

THOMPSON, Judge,

concurring in the result.

Recently, this court dismissed an appeal from an order in which the trial court reserved jurisdiction to modify the order upon a certain contingency. In Hubbard v. Hubbard, 935 So.2d 1191 (Ala.Civ.App.2006), after divorcing the parties, the trial court entered an order that disposed of all of the marital property but reserved jurisdiction to modify the property division in the event the husband did not comply with his bankruptcy plan and the wife became responsible for the marital debts. This court concluded that “[b]y retaining jurisdiction to modify the property division, the trial court necessarily did not effect a complete adjudication of all matters in controversy.” Hubbard v. Hubbard, 935 So.2d at 1193.

Before the current case was submitted to this court, Roberts filed a motion to dismiss Tenet Health’s appeal, arguing that the trial court’s May 9, 2005, order was not sufficiently final so as to support the appeal. On October 25, 2005, this court denied Roberts’s motion to dismiss. In her brief submitted to this court, Roberts again argues that the trial court’s May 9, 2005, order was not final, citing Jones v. Jones, 869 So.2d 1120, 1123 (Ala.2003), for the proposition that “ ‘[a]n order is not final if it permits a party to return to court and prove more damages or if it leaves open the question of additional recovery.’ ” (Quoting Grantham v. Vanderzyl, 802 So.2d 1077, 1080 (Ala.2001)).

The pertinent facts of this case appear to be similar to those of Hubbard v. Hubbard, supra. Both cases involve orders in which a trial court, in an otherwise final disposition of the issues, reserved jurisdiction to reconsider the case if circumstances existing at the time the order was entered were to change. Both eases appear to allow the parties “ ‘to return to court ... [and] leave[] open the question of additional recovery.’ ” Jones v. Jones, 869 So.2d at 1123. Therefore, I think it is incumbent on this court to address the issue whether the order in this case is sufficiently final so as to be capable of supporting an appeal. I conclude that it is sufficiently final to support the appeal, and I concur in the result.

In Tombrello Coal Co. v. Fortenberry, 248 Ala. 640, 29 So.2d 125 (1947), the trial court fashioned a workers’ compensation award but reserved jurisdiction to decrease the award should the plaintiffs degree of disability change. The trial court later amended the judgment in order to clarify that certain benefits were due, and it included in that amendment a slightly different reservation of jurisdiction to redetermine disability. Our supreme court denied the employer’s writ of certiorari seeking to challenge the amendment, apparently arguing that the amendment was an enlargement of the original judgment. Our supreme court disagreed, concluding that the employer had shown no error in that it had failed to appeal the original judgment.

Also, noting that the workers’ compensation statute then in effect did not allow for the reopening of a workers’ compensation judgment, the court concluded

“that the condition in the original judgment, as well as in the amended judgment, for reexamination as to the extent and nature of the employee’s injuries, was ineffective, and is to be so treated on collateral attack. This unauthorized condition, therefore, of the original judgment was subject to be corrected on review in this court, but does not affect the conclusive nature of the original judgment as carried forward in the amendment awarding compensation upon the basis of total disability.”

Tombrello Coal Co. v. Fortenberry, 248 Ala. at 643, 29 So.2d at 127 (emphasis added). The court concluded that it must “disregard[ ]” the “ineffective conditional provision of the judgment.” Id.

Thus, in Tombrello Coal Co. v. Foitenberry, supra, the court determined that the provision purporting to reserve jurisdiction was ineffective as a matter of law because the workers’ compensation statute did not contain a provision allowing a trial court to reopen a judgment. In Hubbard v. Hubbard, however, there was no such legal impediment preventing the trial court from reserving jurisdiction to reconsider its determination upon a certain contingency.

The procedural facts of this case are similar to those of Tombrello Coal Co. v. Fortenberry, supra. Although an employer may reopen a workers’ compensation judgment based on a change in the injured employee’s condition, under the current Workers’ Compensation Act, an employee may not reopen a workers’ compensation judgment if his or her condition alters after the entry of that judgment. Therefore, the trial court’s purported reservation of jurisdiction to reconsider its determination should Roberts’s condition deteriorate was ineffective as a matter of law. See Tombrello Coal Co. v. Fortenberry, supra. The May 9, 2005, order constituted a final adjudication of all of the issues in controversy between the parties. Therefore, I conclude that the May 9, 2005, order supports the current appeal.


author: CRAWLEY, Presiding Judge.

text:
    Darryl C. HARDIN and Ann Price Hardin d/b/a Antiques and Collectibles of Northport v. KIRKLAND ENTERPRISES, INC.
    2040720.
    Court of Civil Appeals of Alabama.
    March 10, 2006.

      Ritchie L. Tipton, Tuscaloosa, for appellants.
    Gary L. Blume of Blume & Blume, Attorneys at Law, P.C., Tuscaloosa, for ap-pellee.
   CRAWLEY, Presiding Judge.

On July 21, 2004, Kirkland Enterprises, Inc. (“the landlord”), sued Darryl C. Hardin and Ann Price Hardin d/b/a Antiques and Collectibles of Northport (“the tenants”), alleging the breach of a lease. Following a bench trial, the circuit court entered a judgment in favor of the landlord in the amount of $46,841.00, representing the amount of rent due under the remaining term of the lease, late fees, eviction costs, repair costs, and attorney fees and costs of the action. The tenants appeal, conceding that they owe the landlord $23,896.44, but contending that the balance of the judgment in excess of that amount is erroneous because the lease agreement did not allow the landlord to collect unaccrued (or “accelerated”) rent after the eviction.

On August 15, 2001, the tenants signed a three-year commercial lease. They paid rent until November 2003, after which they made no more payments through the end of the lease term, August 14, 2004. On December 11, 2003, the landlord served the tenants with a notice of termination of the lease. On December 30, 2003, the landlord served the tenants with a “Notice of ■ Eviction Action,” which was brought pursuant to § 35-9-80, Ala.Code 1975, in the Tuscaloosa District Court. Following the entry of a judgment in favor of the landlord in the district court and the tenants’ unsuccessful appeal to the circuit court, the tenants vacated the leased premises on March 8, 2004.

After the tenants vacated the premises, the landlord remodeled the building. On July 1, 2004, the landlord moved its subsidiary, Weathers Auto Supply Company, Inc., into the premises when the subsidiary was forced to relocate because of an urban-renewal project. When asked whether the subsidiary paid rent to the landlord, Buddy Kirkland, the landlord’s president, testified as follows:

“[W]e factored that into our financial statements, yeah. That is our building and, of course, we sort of set our businesses up like in departments, you know, and we had allocated so much rent to each division.”

There was no evidence regarding the amount of rent that the landlord allocated to the subsidiary.

The tenants argue that they owe no rent past March 8, the date they vacated the premises and the landlord recovered possession.

“After the dispossession of a tenant in summary proceedings for nonpayment of rent, the lease is at an end, and the tenant’s liability thereafter is for damages, not further rent payments.”

49 Am.Jur.2d Landlord, and Tenant § 1012 (1995) (footnote omitted). See O’Byrne v. Henley, 161 Ala. 620, 622-23, 50 So. 83, 83 (1909) (stating that “[a]n eviction of the tenant by the landlord ... will authorize the tenant to abandon the premises, and will exonerate him from further liability for rent”). It is, however, “within the right of the contracting parties to agree that the time for the payment of the rent might be accelerated, in certain contingencies,” H.M. Price Hardware Co. v. Meyer, 224 Ala. 35, 38, 138 So. 543, 546 (1931); see also Maddox v. Hobbie, 228 Ala. 80, 83, 152 So. 222, 223 (1934), and “there must be an express provision in a lease in order for it to provide for acceleration upon default.” Camelot Music, Inc. v. Marx Realty & Improvement Co., 514 So.2d 987, 990 (Ala.1987). Accord International Biochemical Indus., Inc. v. Jamestown Mgmt. Corp., 262 Ga.App. 770, 772, 586 S.E.2d 442, 445 (2003):

“Although the general rule is that when a landlord evicts a tenant and takes possession of the premises, the lease is terminated and the right to claim rent which accrues after eviction is extinguished, the parties to a lease may contract to hold the lessee liable for post-eviction rent.”

See generally Annotation, Liability for Rent Accruing after Landlord’s Institution of Action or Proceedings Against Tenant to Recover Possession, 93 A.L.R. 1474, 1477 (1934) (stating that “it is generally recognized that an actual eviction of a tenant for any cause will, in the absence of a contractual provision to the contrary, relieve him from any liability for subsequently accruing rent, the lease having been terminated by such eviction”).

The parties disagree about whether the lease contains a contractual provision allowing for the collection of rent after eviction. Section 12 of the lease provides that, in the event the rent is not paid when due, the landlord “shall have the option to do any of the following in addition to and not in limitation of any other remedy permitted by law or by this lease”:

“I. Terminate the lease in which event Lessees shall immediately surrender the premises to Lessor. If Lessees fail to do so, Lessor may, without further notice and without prejudice to any other remedy Lessor may have for possession or arrearages in rent or damages for breach of contract, enter upon the premises and expel or remove Lessees and Lessees’ effects, by force if necessary, without being liable to prosecution for any claim for damages therefor; and Lessees agree to indemnify Lessor for all loss and damage that Lessor may suffer by reason of such lease termination, whether through inability to relet the premises or through decrease in rent, or otherwise; in the event of such termination, Lessor may, at Lessor’s option, declare the entire amount of rent which would become due and payable during the remainder of the term of this lease or any renewal or extension thereof to be due and payable immediately, in which event, Lessees agree to pay the same at once, together with all rents, theretofore due, together with interest thereon, if any, at a rate of 12% per annum, plus any costs of collection and a reasonable attorney’s fee.
“II. Enter the premises as the agent of the Lessees, by force if necessary, without being hable to prosecution for any claim for damages therefore, and relet the premises as the agent of the Lessees, and receive the rent therefor, and the Lessees shall pay Lessor any deficiency that may arise by reason of such reletting, on demand at anytime from time to time.”

(Emphasis added.)

Section 12.1. of the lease is composed of two sentences. The first sentence is short; it gives the landlord the right to terminate the lease, and it states that, if the landlord exercises that option, the tenants “shall immediately surrender the premises” to the landlord. The second sentence is longer and consists of three provisions separated by semicolons. The second sentence deals with the rights and obligations of the parties in the event the tenants fail to surrender the premises upon the landlord’s termination of the lease. In that event, the landlord may enter and expel the tenants and remove the tenants’ effects (forcibly, if necessary) and the landlord will not be liable for damages. The acceleration-of-rent provision is located in the second sentence, after the second semicolon, and is introduced by the phrase “in the event of such termination.”

The tenants argue that the phrase “in the event of such termination” refers to the kind of termination described in the first provision of the second sentence— that is, a termination brought about by the landlord’s reentry of the premises and expulsion of the tenants. The landlord, on the other hand, argues that the phrase refers to the entirety of § 12.L, dealing with termination of the lease. Moreover, the landlord points out that the tenants did not “immediately surrender the premises” as contemplated by the first sentence of § 12.1. The issue therefore is: Does the phrase “in the event of such termination” refer to what happened in the present case — the landlord’s termination of the lease by eviction and the tenants’ eventual surrender of the premises to the landlord? Or does the phrase “in the event of such termination” refer only to the specific scenario described in the second sentence of § 12.1. — the landlord’s entry upon the premises and his expulsion of the tenants and removal of the tenants’ effects?

The circuit court apparently determined that the phrase introducing the acceleration-of-rent provision referred to both types of terminations — those outlined in the first sentence and those outlined in the second sentence of § 12.1. The circuit court’s judgment states, in pertinent part:

“The Court finds that § 12 of the Lease Agreement specifically allows the [landlord] to reenter the premises and also declare the entire amount of rent, which would become due and payable during the remainder of the term of the Lease. Thus, [the tenants] contractually agreed that they could be held liable for this accelerated rent, even in the event of eviction.”

“It is well settled that lease agreements are contracts and that the general principles of contract construction apply in ascertaining the scope and meaning of a lease agreement.” Bowdoin Square, L.L.C. v. Winn-Dixie Montgomery, Inc., 873 So.2d 1091, 1098 (Ala.2003). Whether a lease is ambiguous is a question of law for the trial court. Interstate Inv. Corp. v. Rose Care, Inc., 631 So.2d 836, 839 (Ala.1993).’ An appellate court applies a de novo review to a trial court’s determination of whether a contract is ambiguous and to a trial court’s determination of the legal effect of an unambiguous contract term. See Winkleblack v. Murphy, 811 So.2d 521, 525-26 (Ala.2001).

We acknowledge that there may be some grammatical ambiguity about what type of termination the phrase “such termination” refers to. Nevertheless, we hold that the phrase is not ambiguous in the legal sense. A provision in a written instrument is not ambiguous in the legal sense if the terms are “susceptible of only one reasonable meaning.” Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000) (emphasis added). Reading § 12 of the lease as a whole leads to the conclusion that subsection I. refers to the event of termination of the lease — however that termination is accomplished' — in contradistinction to subsection II., which refers to a continuation of the lease— allowing the landlord to relet the premises as the agent of the tenants and to seek any deficiency in rent from the tenants. See generally McClure v. Daniel, 45 Ala.App. 558, 561-62, 233 So.2d 500, 502 (Civ.1970) (noting that “[w]hen a lessee abandons the leased premises or defaults in payment of the rent, it is the option of the lessor to allow the premises to remain vacant and recover rent for the whole term, or to put an end to the lease by re-entry”).

As the landlord points out, construing § 12.1. in the way the tenants propose could encourage a landlord who intends to insist upon the right to accelerate the rent to risk a physical confrontation with the tenant (by expelling the tenant from the leased premises) rather than to use the more peaceable statutory remedy of eviction. Moreover, the tenants’ conduct in this case did not fit within the scenario contemplated by the first sentence of § 12.L, i.e., an “immediate[] surrender” of the premises to the landlord. Instead, the tenants failed to surrender possession of the premises until the landlord had prevailed in both the district court eviction proceeding and the tenants’ appeal to the circuit court. We, therefore, hold that the circuit court correctly determined that the tenants “contractually agreed that they could be held liable for ... accelerated rent ... in the event of eviction.”

The tenants next contend that, even if the landlord was entitled to seek accelerated rent after the eviction, they are not liable to pay the accelerated rent because the landlord did not make a timely demand for payment of accelerated rent — either in its notice of termination, its notice to vacate, or its eviction action. The lease provision applicable to this contention is contained in § 12.L:

“Lessor may, at Lessor’s option, declare the entire amount of rent which would become due and payable during the remainder of the term of this lease or any renewal or extension thereof to be due and payable immediately, in which event, Lessees agree to pay the same at once .... ”

(Emphasis added.) The tenants argue that, because the landlord did not exercise its option to declare the accelerated rent “due and payable immediately,” i.e., at the termination of the lease, the landlord waived its right to seek accelerated rent later, on July 21, 2004, when it filed its complaint in this proceeding.

The quoted provision in § 12.1. of the lease is an optional, as opposed to an automatic, rent-acceleration provision. See generally C.T. Dreehsler, Annotation, What is Essential to Exercise of Option to Accelerate Maturity of Bill or Note, 5 A.L.R.2d 968, 970 (1949):

“It appears to be well settled that a provision in a bill or note accelerating the maturity thereof on nonpayment of interest or installments, or other default, at the option of the holder, requires some affirmative action on the part of the holder, evidencing his election to take advantage of the accelerating provision, and that until such action has been taken the provision has no operation.”

An optional acceleration provision is not self-executing; it generally requires the holder of the option to take some affirmative action evidencing his intention to exercise the option within a reasonable time after default. See McJenkin v. Central Bank of Tuscaloosa, N.A., 417 So.2d 158, 157 (Ala.1982):

“A ‘due on sale’ acceleration clause, not unlike other acceleration clauses, while giving an option to the holder to declare the full amount due, is not self-executing. Default does not ipso facto mature the whole debt. Walker Bank & Trust Co. v. A.P. Neilson, 26 Utah 2d 383, 490 P.2d 328 (197[1]). And the election of the holder to declare the acceleration of the due date of the whole debt must be exercised within a reasonable time after default. Malouff v. Midland Federal Savings and Loan Association, 181 Colo. 294, 509 P.2d 1240 (1973). See, also, Tierce v. APS Co., 382 So.2d 485 (Ala.1979).”

(Footnote omitted.)

Although we have found decisions indicating that the holder of an optional right to accelerate a debt waives the right to exercise his option if he accepts partial payments or past-due payments, see In re Parks, 193 B.R. 361, 366 (Bankr.N.D.Ala.1995) (noting that “ ‘[t]he forfeiture declarable under the strict terms of the contract may be waived by continued recognition and receipt of part payments, after ground of forfeiture’ ” (relying on Alabama law and quoting Barry v. Welch, 248 Ala. 167, 168, 26 So.2d 872, 873 (1946))), the tenants cite no authority (and we have found none) for the proposition that a landlord waives his right to collect unaccrued rent after an eviction if the landlord does not immediately make a demand for payment pursuant to an optional acceleration clause in the lease.

The tenants make no argument that the landlord had a duty to mitigate its damages upon termination of the lease. They do not contend that the landlord’s recovery should have been reduced by the rent allocated by the landlord to its subsidiary’s occupation of the premises after July 1, 2004. Cf. Watts Bldg. Corp. v. School, Ogle, Benton, Gentle, & Centeno, 598 So.2d 832, 834 (Ala.1992) (holding that the landlord “is entitled to collect the rent due under the remaining term of the lease, subject to [the landlord’s] mitigation of its damages”). They also do not contend that the circuit court erred by failing to require the landlord to reduce its claim for future rent to present value. Cf. HealthSouth Rehab. Corp. v. Falcon Mgmt. Co., 799 So.2d 177, 185 (Ala.2001). See generally David C. Skinner, Gambling with Remedies: Rent Acceleration and Mitigation of Damages in Alabama, 45 Ala. L.Rev. 275 (1993).

Accordingly, we conclude that the judgment of the Tuscaloosa Circuit Court is due to be affirmed.

AFFIRMED.

THOMPSON, PITTMAN, and MURDOCK, JJ., concur.

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


text:
    STATE DEPARTMENT OF HUMAN RESOURCES v. A.J.T. A.J.T. v. State Department of Human Resources.
    2050024.
    Court of Civil Appeals of Alabama.
    March 24, 2006.
    Troy King, atty. gen., and Sharon E. Ficquette and Elizabeth Hendrix, asst, at-tys. gen., Department of Human Resources, for appellant/cross-appellee State Department of Human Resources.
    Jerry Wayne Baker, Jr., Albertville; and A. Dalton Chandler, Albertville, guardian ad litem, for appellee/cross-appel-lant A. J.T.
   CRAWLEY, Presiding Judge.

In May 2002, the State Department of Human Resources (“DHR”) received a report that five children were being left at home alone. Upon investigation, DHR discovered that the children, G.M.A., T.A.A., A.D.A., A.J.A., and F.M.T., whose ages ranged from eight to one, were being left at home by their mother, D.A., who had a methamphetamine addiction, and A.J.T., the father of A.J.A. and F.M.T. DHR instituted a safety plan that allowed the children to remain in the home provided that A.J.T. supervised the children’s contact with the mother and that the mother was not left alone with the children. However, the parties failed to comply with the safety plan; A. J.T. would go to work, leaving the mother alone with the children, and the mother would then leave the children unattended. The children were then placed with a friend of the family for supervision while DHR instituted services for the family. The mother, however, was not cooperative with DHR, refusing to take drug tests and failing to otherwise adjust her circumstances to meet her children’s needs. Her parental rights were ultimately terminated in December 2003, and she is not involved in the present appeal.

In September 2002, when the children’s custodian informed DHR that she would need to leave the state for a family emergency, DHR placed the children in foster care. DHR filed a petition to terminate the parental rights of A.J.T. in September 2003. After a trial in June 2005, the trial court terminated AJ.T.’s parental rights but granted him visitation with A.J.A. and F.M.T. every other weekend. DHR filed a postjudgment motion in which it argued that the trial court could not properly award visitation to A.J.T. while also terminating his parental rights and awarding permanent custody of the children to DHR. After a hearing on that motion, the trial court amended its judgment to award A.J.T. 48 hours of visitation each month, the timing of which was to be determined by DHR, the foster parents, or the adoptive parents of the children. DHR appeals, arguing that the trial court erred by awarding A.J.T. visitation after terminating his parental rights; A.J.T. cross-appeals, arguing that the termination of his parental rights was not supported by the evidence. We reverse.

This court has held that a judgment terminating parental rights but reserving certain parental rights to the parent is contradictory. B.C.M. v. H.E.C., 907 So.2d 445, 446 (Ala.Civ.App.2005). Although the juvenile court in B.C.M. specifically terminated only the mother’s right to object to the adoption of her child and reserved to her the right to visit with the child and to be involved in the child’s schooling and activities, this slight difference between the cases is inconsequential. A judgment terminating the parental rights of a parent and awarding permanent custody of a child to DHR gives DHR the right to make permanent plans, including adoption, for that child. Ala. Code 1975, § 26-18-8(1). To reserve to the parent any right is diametrically opposed to the fundamental principles underlying the termination of parental rights. A termination of parental rights should be accomplished only in the most egregious of circumstances, is to be based on a determination that the parent is unwilling or unable to provide for the child and that the circumstance or condition resulting in

the parent’s unwillingness or inability to provide for the child is unlikely to change in the foreseeable future, should occur only after consideration of all possible viable alternatives to termination, and must be in the child’s best interest. Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990). To terminate parental rights and yet award visitation indicates that the trial court must think that continued contact between the parent and the child is in the child’s best interest and that the complete severance of the parent-child relationship is not. Accordingly, we must reverse the trial court’s judgment and remand this cause for the trial court to determine, based on the evidence presented at trial, whether AJ.T.’s rights should be terminated without the reservation of visitation or whether termination of AJ.T.’s parental rights is not truly in the best interest of the children.

In light of our disposition of DHR’s appeal, we dismiss AJ.T.’s cross-appeal as being moot.

APPEAL — REVERSED AND REMANDED WITH INSTRUCTIONS.

CROSS-APPEAL — DISMISSED AS MOOT.

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


text:
    Edward F. TRACY v. Amy C. TRACY.
    2040823.
    Court of Civil Appeals of Alabama.
    March 31, 2006.
    Edward F. Tracy, pro se.
    Walter B. Calton, Eufaula, for appellee.
   PITTMAN, Judge.

Edward F. Tracy (“the father”) appeals from an order of the Barbour Circuit Court denying a petition for modification of visitation rights as to children born of his marriage to Amy C. Tracy (“the mother”) and making other determinations. We dismiss the appeal.

The record indicates that the father filed a petition requesting a modification of visitation as to the parties’ two minor children in the Barbour Circuit Court on December 20, 2004. That court, after an ore tenus hearing, entered an order on April 4, 2005, denying the father’s petition; however, the trial court also, sua sponte, raised the issue of whether the father’s child-support obligation should be altered. In connection with that issue, the trial court found that the father was underemployed and directed the father to find part-time paid employment at a minimum of 20 hours per week. The trial court directed the father to file and serve an income affidavit after obtaining employment; however, the trial court did not determine the amount of prospective child support to be paid.

We conclude that the father’s appeal is from a nonfinal order and, thus, is due to be dismissed. An appeal ordinarily lies only from a final judgment. Ala.Code 1975, § 12-22-2. An order is generally not final unless it disposes of all claims or the rights and liabilities of all parties. See Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ.App.2002) (noting that an order that does not dispose of all claims is not a final judgment and that, in such an instance, an appeal may be had only upon an express determination that there is no just reason for delay and upon an express direction for the entry of a judgment under Rule 54(b), Ala. R. Civ. P.).

We note that the father filed a post-judgment motion requesting that the trial court vacate its order denying his petition for modification of visitation; that motion also requested that the trial court vacate its finding that he was underemployed. Rule 32(B)(5), Ala. R. Jud. Admin., provides:

“(5) Unemployment; Underemployment. If the court finds that either parent is voluntarily unemployed or underemployed, it shall estimate the income that parent would otherwise have and shall impute to that parent that income; the court shall calculate child support based on that parent’s imputed income.”

(Emphasis added.)

In this case, although the trial court, sua sponte, raised the issue of child support and found that the father was underemployed, the trial court failed to impute income to the father and calculate child support pursuant to Rule 32(B)(5). Because the issue of child support has not been fully adjudicated by the trial court, the father has attempted to appeal from a nonfinal order. Thus, we dismiss the father’s appeal. See § 12-22-2, Ala.Code 1975.

APPEAL DISMISSED.

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

      . The record reflects no pleading or motion in which the mother sought an increase in the father’s child-support obligation.

      . In this case, the trial court did not direct the entry of a judgment pursuant to Rule 54(b), Ala. R. Civ. P., as to the visitation claim.


text:
    ALABAMA STATE PERSONNEL BOARD and Alabama Department of Transportation v. Terry L. CARSON, Sr.
    2040811.
    Court of Civil Appeals of Alabama.
    March 31, 2006.

      Alice Ann Byrne, gen. counsel, for Alabama State Personal Board.
    J. Charles Wilson, Mobile, for appellee.
   PITTMAN, Judge.

Terry L. Carson, Sr., filed in the Montgomery Circuit Court, pursuant to Ala. Code 1975, § 41-22-20 (a portion of the Alabama Administrative Procedure Act (“the AAPA”)), a petition for judicial review of an order of the Alabama State Personnel Board (“the Board”) upholding the decision of the Alabama Department of Transportation (“the employer”) to terminate his employment. After the parties had submitted briefs and arguments, the circuit court entered a judgment that provided, in pertinent part:

“This matter came before the Court for a hearing on the oral arguments of the parties on April 1, 2005. The Court has carefully reviewed the record in this matter, and the Court finds that the employer’s termination of Terry Carson, Sr. on or about March 21, 2000, and the subsequent affirmation of said termination, were clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. The Court therefore hereby ORDERS, ADJUDGES and DECREES as follows:
“1. The [employer] is ORDERED to immediately reinstate ... Terry Carson, Sr.’s employment.
“2. [Carson] is awarded back pay in the amount of $54,574.00 which sum is the difference in his earnings with the [employer] and earnings through employment since his termination through the end of May 2005.”

The Board and the employer appeal. Among other arguments, the Board and the employer assert that the circuit court’s judgment is not in compliance with Ala. Code 1975, § 41-22-20(1), which provides as follows:

“Unless the court affirms the decision of the agency, the court shall set out in writing, which writing shall become a part of the record, the reasons for its decision.”

Under that provision, “an explanatory writing must become a part of the record whenever any appropriate relief is granted, not just a reversal or modification of the agency decision.” Ala.Code 1975, § 41-22-20, Commentary (emphasis added).

In a long line of cases since the 1981 adoption of the AAPA, we have required substantial compliance with § 41 — 22—20(í) on pain of reversal. For example, in Alabama Medicaid, Agency v. Norred, 497 So.2d 176, 176 (Ala.Civ.App.1986), we reviewed a judgment reversing an administrative order in which the trial court stated, in pertinent part, that “ ‘[t]he Court is satisfied that according to the testimony and exhibits presented at ... [an administrative hearing], the conclusions and recommendations of the hearing officer are correct and that the [agency] was in error.’ ” In concluding that that statement of reasons was insufficient under § 41-22-20(Z) and in reversing that judgment, we noted the limited and deferential standard of review due to be applied in circuit courts under the AAPA. 497 So.2d at 176-77; accord, Alabama Medicaid Agency v. Beverly Enters., 504 So.2d 1211, 1213 (Ala.Civ.App.1987) (“this court, without a listing by the circuit court of its reasons for rejecting the Agency’s decision that reimbursement should be denied, cannot determine if the circuit court complied with the prescribed review standard”); Alabama Medicaid Agency v. Peoples, 549 So.2d 504, 506 (Ala.Civ.App.1989) (“the [circuit] court cannot merely recite the statutory grounds for reversal or modification set forth in § 41-22-20(k)[, Ala.Code 1975,] when setting aside an agency’s findings”); see also Alabama Renal Stone Inst. v. Trustees of Susie Parker Stringfellow Mem. Hosp., 680 So.2d 358 (Ala.Civ.App.1996); State of Alabama Home Builders Licensure Bd. v. Butler, 706 So.2d 1267, 1268 (Ala.Civ.App.1997); cf. Alabama Dep’t of Mental Health & Mental Retardation v. Marshall, 741 So.2d 434, 436 (Ala.Civ.App.1999) (although judgment stating only that agency’s findings and conclusions were contrary to the evidence contravened § 41-22-20(Z), appeal from that judgment was dismissed as untimely).

The circuit court in this case, although it reversed the Board’s order, failed to specify, in its judgment or in a separate opinion, “the reasons for its decision.” Without such a specification of reasons, we “cannot determine if the circuit court complied with the prescribed review standard” so as to properly assess the correctness of the circuit court’s decision to reverse the Board’s order. Beverly Enters., 504 So.2d at 1213. The judgment of the circuit court is therefore reversed, and the cause is remanded for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

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


author: SHAW, Judge.

text:
    Randy Lee WHEELER v. STATE of Alabama.
    CR-04-1553.
    Court of Criminal Appeals of Alabama.
    Oct. 28, 2005.

      Randy Wheeler, pro se.
    Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   SHAW, Judge.

Randy Lee Wheeler appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his October 2003 convictions for one count of first-degree rape and two counts of first-degree sexual abuse and his resulting sentences, as a habitual felony offender, of 35 years’ imprisonment for the rape conviction and 20 years’ imprisonment for each of the sexual-abuse convictions, the sentences to run concurrently. On June 18, 2004, this Court affirmed Wheeler’s convictions and sentences in an unpublished memorandum. Wheeler v. State, (No. CR-03-0635) 919 So.2d 1242 (Ala.Crim.App.2004) (table). The Alabama Supreme Court denied cer-tiorari review and this Court issued a certificate of judgment on November 12, 2004.

Wheeler filed his Rule 32 petition on March 14, 2005. In his petition, Wheeler alleged:

(1) That the trial court lacked jurisdiction to render the judgment in his case or to impose the sentences because, he says, there was no arrest warrant issued pursuant to the multicount indictment;
(2) That the trial court lacked jurisdiction to render the judgment in his case or to impose the sentences because, he says, the trial court did not place prospective jurors under oath before the voir dire examination;
(3) That the evidence was insufficient to sustain his convictions for one count of rape and two counts of sexual abuse;
(4) That the trial court illegally sentenced him to multiple sentences because, he says, the State lacked the authority to prosecute him for those offenses that were not part of the arrest warrant; and
(5) That he was denied effective assistance of trial and appellate counsel.

After receiving a response from the State, the circuit court summarily denied Wheeler’s petition on April 22, 2005.

Initially, we note that Wheeler does not pursue on appeal claims (1) and (4), as set out above. Thus, those claims are deemed to be abandoned. See, e.g., Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995) (“We will not review issues not listed and argued in brief.”).

I.

Wheeler contends that the trial court lacked jurisdiction to render the judgment or to impose the sentences because, he says, the trial court did not place prospective jurors under oath before voir dire examination (claim (2)). In its order summarily denying Wheeler’s petition, the circuit judge, who was the same judge who presided over Wheeler’s trial, stated:

“[Wheeler] does not allege that no oath was ever given to the jurors and, in fact, the trial court administered an oath to the jury before trial. Thus, any defect in the administration of oaths was waiva-ble, and was so waived. Fortner v. State, 825 So.2d 876 (Ala.Crim.App.2001).”

(C. 80.) We agree with the circuit court. Wheeler did not allege that neither the jury venire nor the petit jury were administered an oath; he alleged only that the jury venire was not administered an oath. Thus, this is a defective-oath situation, which is a nonjurisdictional claim subject to the procedural bars in Rule 32.2, Ala. R.Crim.P. See Brooks v. State, 845 So.2d 849, 851-52 (Ala.Crim.App.2002). Specifically, this claim is barred by Rule 32.2(a)(3) and (5), Ala.R.Crim.P., because it could have been, but was not, raised at trial and on appeal.

II.

Wheeler contends that he is actually innocent of the offenses of which he was convicted and that the evidence was insufficient to sustain his convictions for one count of rape and two counts of sexual abuse (claim (3)). However, this claim was raised and addressed at trial and on direct appeal, and, thus, is barred by Rule 32.2(a)(2) and (4), Ala.R.Crim.P.

III.

Wheeler alleges that both his trial counsel and his appellate counsel were ineffective for not raising or adequately raising several issues (claim (5)).

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court articulated two criteria that must be satisfied in order to show ineffective assistance of counsel. A defendant has the burden of showing (1) that his counsel’s performance was deficient and (2) that the deficient performance actually prejudiced the defense. To prove prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Furthermore, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” 466 U.S. at 689, 104 S.Ct. 2052.

Although Wheeler alleged in his Rule 32 petition that the assistance of both his trial and appellate counsel had been ineffective regarding the issue whether an arrest warrant was issued on the multicount indictment, he did not plead with sufficient specificity how the actions or inactions of his trial and appellate counsel were deficient and how this alleged deficient performance prejudiced his defense to the extent required to substantiate a claim under Strickland.

As to Wheeler’s claim that his trial and appellate counsel rendered ineffective assistance when no objection was made at trial or no issue raised on appeal regarding the trial court’s instruction to the jury that the “victim’s word alone was sufficient to convict” (C. 53), we do not find that Wheeler is entitled to any relief on this ground. It is well settled that “ '[t]he question of the victim[’s] credibility [is] one for the jury and not for this Court.’ ” Rowell v. State, 647 So.2d 67, 69 (Ala.Crim.App.1994), quoting Coats v. State, 615 So.2d 1260, 1260 (Ala.Crim.App.1992). In the present case, the jury was charged that it was to determine the credibility of each witness when deciding whether to accept or reject that witness’s testimony. If the jury believed the victim’s testimony concerning the incidents, then the victim’s testimony, without more, was sufficient to sustain Wheeler’s convictions for rape and sexual abuse; thus, there was nothing for trial counsel to object to or for appellate counsel to raise on appeal.

As to Wheeler’s allegation of ineffective assistance of counsel involving the trial court’s alleged failure to administer the oath to the jury venire before voir dire examination, we must remand this case to the circuit court to make findings regarding this allegation. In Wilson v. State, 845 So.2d 2, 4-5 (Ala.Crim.App.2002), this Court stated:

“However, Wilson’s claim is not that the trial court lacked jurisdiction to render the judgment or to impose the sentence because the venire was not sworn, which is nonjurisdictional and waivable, but that his trial counsel rendered ineffective assistance when he did not object. Thus, whether the venire had been, in fact, administered the oath has a direct bearing on this particular ineffective-assistance-of-trial-counsel claim. See Fortner v. State, 825 So.2d 876 (Ala.Crim.App.2001). Therefore, it is necessary for this cause to be remanded to the circuit court to make such findings as are necessary to determine whether the venire was properly sworn.”

The State, in its response to Wheeler’s Rule 32 petition, stated:

“The potential jurors are administered an oath, according to Alabama Rules of Criminal Procedure during orientation with the Court Administrator’s Office prior to voir dire. Additionally, [the trial judge] administered the oath according to Rule 12.1 after the jury was selected, but prior to trial. (See record page 72, line 24.)”

(C. 68, 69-70.) However, the record in the present case does not affirmatively show that the jury venire was administered an oath before voir dire examination, and the State did not submit an affidavit establishing that the oath was, in fact, administered to the jury venire before voir dire examination. Thus, we have no alternative but to remand this case for the circuit court to determine whether the jury venire was properly sworn. See Ex parte Hamlett, 815 So.2d 499 (Ala.2000).

Based on the foregoing, we remand this case for the circuit court to address the merits of Wheeler’s claim that his trial counsel was ineffective for not objecting to the alleged failure to administer the oath to the jury venire and to issue specific findings of fact in that regard. Those findings must necessarily include a determination of whether the jury venire was, in fact, sworn. The circuit court may conduct an evidentiary hearing or may take evidence in the form of affidavits, written interrogatories, or depositions. See Rule 37.9(a), Ala.R.Crim.P. Due return shall be filed with this Court no later than 42 days from the date of this opinion. The return to remand shall include the circuit court’s written findings of fact; a transcript of the evidentiary hearing, if one is conducted; and any other evidence received or relied on by the court in making its determination.

REMANDED WITH DIRECTIONS.

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


author: BASCHAB, Judge.

text:
    Douglas Ray GOODWIN v. STATE of Alabama.
    CR-04-1940.
    Court of Criminal Appeals of Alabama.
    Oct. 28, 2005.
    Douglas Goodwin, pro se.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   BASCHAB, Judge.

On August 22, 1985, the appellant, Douglas Ray Goodwin, pled guilty to unlawful possession of marijuana, a violation of § 20-2-70, Ala.Code 1975. The trial court sentenced him to serve a term of twenty-five years in prison. He did not appeal his conviction. On March 8, 2005, the appellant filed a Rule 32 petition, challenging his conviction. After the State responded, the circuit court summarily denied the petition. This appeal followed.

The appellant argues that his sentence exceeds the maximum authorized by law because he was allegedly improperly sentenced as a habitual offender. Specifically, he contends that he was indicted on August 22, 1985; that he did not have any prior convictions for violations of the Controlled Substances Act, § 20-2-1 et seq., Ala.Code 1975; and that he should not have been sentenced as a repeat offender. The State concedes that a remand is necessary to determine whether the appellant was properly sentenced pursuant to the Controlled Substances Act. For the reasons set forth herein, we agree.

The case action summary sheet in this case indicates that the appellant was “sentenced as Habitual Offender.” (C.R. 16.) However, in Ex parte Chambers, 522 So.2d 313, 316 (Ala.1987), the Alabama Supreme Court held:

“The Habitual Felony Offender Act, with its punishment enhancement provisions, is a penal statute, and must be strictly construed, especially in regard to its applicability to felony offenses outside the Criminal Code. A careful reading of the pertinent provisions of Title 13A, Chapter 5, along with the commentary thereto, makes it quite obvious that the legislature did not intend the Habitual Felony Offender Act to apply to felony drug offenses. That legislative intent is made unequivocal by the inclusion of a recidivist statute in the Controlled Substances Act itself, the enhancement provisions of which are plainly applicable to the facts of the present case.
“... Because the sentences applicable to drug offenses and repeat drug offenses are provided within the Controlled Substances Act, we hold that defendants convicted thereunder must be sentenced according to its provisions, not the sentencing provisions of Title 13A.”

(Footnote omitted.) Thus, the appellant should not have been sentenced as a habitual offender pursuant to the Habitual Felony Offender Act.

Also, § 20-2-70(a), Ala.Code 1975, pursuant to which the appellant pled guilty, provided, in pertinent part:

“Except as authorized by this chapter, any person who possesses, sells, furnishes, gives away, obtains or attempts to obtain by fraud, deceit, misrepresentation or subterfuge or by the forgery or alteration of a prescription or written order or by the concealment of material fact or by use of false name or giving a false address controlled substances enumerated in schedules I, II, III, IV and V is guilty of a felony and, upon conviction, for the first offense may be imprisoned for not less than two nor more than 15 years and, in addition, may be fined not more than $25,000.00; provided, that any person who possesses any marihuana for his personal use only is guilty of a misdemeanor and, upon conviction of the offense, shall be imprisoned in the county jail for not more than one year, and in addition, shall be fined not more than $1,000.00; provided further, that the penalties for the subsequent offenses relating to possession of marihuana shall be the same as specified in the first sentence of this subsection.”

(Emphasis added.) Section 20-2-76, Ala. Code 1975, provided, in pertinent part:

“(a) Any person convicted of a second or subsequent offense under this chapter may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized or both.
“(b) For purposes of this section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this chapter or under any statute of the United States or of any state relating to narcotic drugs, marihuana, depressant, stimulant or hallucinogenic drugs.”

In Kidd v. State, 398 So.2d 349, 351 (Ala.Crim.App.1981), this court stated:

“This court interpreted those two statutes and explained away their apparent conflict in Palmer v. State, 54 Ala.App. 707, 312 So.2d 399 (1975). On rehearing in Palmer, we held that § 20-2-70 is controlling as to the punishment for subsequent offenses ‘relating to the possession of marihuana ’ and that § 20-2-76 is controlling as to punishment for other types of narcotic drugs and ‘drug offenses relating to marihuana other than possession of same.’
“In cases where a defendant is to be charged with a subsequent offense of possession of marijuana only, it follows from Palmer, supra, that § 20-2-76 cannot be used against him for enhancement of punishment. His punishment in such instances is governed by the first sentence in § 20-2-70, being from two to fifteen years’ imprisonment and/or a fine of $25,000.”

Thus, if the appellant did not have any prior convictions for violations of the Controlled Substances Act, or if his prior conviction or convictions were related to possession of marijuana, then he should have been sentenced pursuant to § 20-2-70, Ala.Code 1975, rather than pursuant to the recidivist provisions set forth in § 20-2-76, Ala.Code 1975. Under § 20-2-70, Ala. Code 1975, the proper range of punishment was not less than two nor more than fifteen years in prison. If this section applied, the appellant’s sentence of twenty-five years in prison is excessive.

Finally, in Kidd, 398 So.2d at 351, we further noted:

“It is reasonably clear from Napier [v. State, 344 So.2d 1235 (Ala.Crim.App.1977)], and from Funches v. State, 56 Ala.App. 22, 318 So.2d 762, cert. denied, 294 Ala. 757, 318 So.2d 768 (1975), that when the State wishes to bring a defendant under the ambit of § 20-2-76 the prior conviction must be alleged in the indictment and later proven at trial.”

We have reviewed the indictment that the appellant attached to his petition, and it does not allege that he has any prior convictions pursuant to the Controlled Substances Act.

For these reasons, the appellant’s argument may be meritorious. Accordingly, we remand this case to the circuit court with instructions that it make specific, written findings of fact as to whether the appellant was sentenced pursuant to the Habitual Felony Offender Act or pursuant to § 20-2-76, Ala.Code 1975; whether he had any prior convictions for violations of the Controlled Substances Act and, if so, for what offenses; and whether any such prior convictions were used to enhance his sentence in this case. On remand, the circuit court may require the State to respond more specifically to the appellant’s claim and/or take affidavits or conduct an evidentiary hearing on that claim. If the circuit court determines that the appellant was improperly sentenced pursuant to the Habitual Felony Offender Act or § 20-2-76, Ala.Code 1975, it shall resentence him pursuant to § 20-2-70, Ala.Code 1975. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 70 days after the release of this opinion. The return to remand shall include the circuit court’s specific, written findings of fact; any additional response by the State; and affidavits or a transcript of the evidentiary hearing, if any.

REMANDED WITH INSTRUCTIONS.

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