author: MURDOCK, Judge.

text:
    Russell Allen KILLINGSWORTH v. Carolyn Ann KILLINGSWORTH.
    2030767.
    Court of Civil Appeals of Alabama.
    Oct. 14, 2005.

      Robert H. Brogden, Ozark, for appellant.
    James R. Fuqua of Fuqua & Kominos, Ozark, for appellee.
   MURDOCK, Judge.

Russell Allen Killingsworth (“the husband”) appeals from a judgment divorcing him from Carolyn Ann Killingsworth (“the wife”). We affirm in part, reverse in part, and remand.

At the time of the trial, the husband was 55 years old and the wife was 51 years old. They were married in 1972 and have three adopted children, all of whom were adults or married at the time of the trial.

The husband has worked for the Alabama Department of Public Health for over 30 years. His annual salary is approximately $81,998, resulting in a gross monthly salary of approximately $6,833. According to the husband’s testimony, his living expenses are approximately $4,532 per month.

The wife works for the Dale County Board of Education. Her annual salary is approximately $32,000, resulting in a gross monthly salary of approximately $2,667. The wife’s living expenses include utilities, gas and oil for her vehicle, and her satellite television bill; however, the record contains no evidence of the amount of those particular expenses or of the total amount of her monthly expenses.

The husband is a vested participant in the Employees’ Retirement System of Alabama (“ERS”). When he retires, he will have a substantial retirement income from ERS. The husband testified that he did not know the amount of his monthly retirement benefit, which will be based on (1) the average of his highest 3 years’ salaries during the last 10 years that he works, and (2) the length of his service. The husband does not know when he will retire and begin receiving state retirement benefits.

The husband will also receive military retirement benefits based on 23 years of service in the Alabama National Guard. The husband does not know the amount of his military retirement benefits, nor does the record reveal when he will be eligible to begin receiving those benefits.

The wife is a participant in the Teachers’ Retirement System of Alabama (“TRS”). She has worked for the Dale County Board of Education for six or seven years and has paid into the TRS. The wife previously worked for a judge in Dale County and participated in the ERS in that job. When she quit working for the judge, she cashed in her ERS retirement. She will be required to make a lump-sum payment of $11,032.40 to repurchase the full ERS retirement credits that she cashed in. The record does not reveal whether the wife’s retirement benefits are vested, when she will be eligible to begin receiving those benefits, or the amount of those benefits.

On January 1, 2004, after this action was filed, the husband elected to participate in the ERS’s Deferred Retirement Option Plan (“DROP”). DROP provides an incentive for certain long-term state employees to continue working after they become eligible to retire. During an employee’s participation in DROP (a period of between three and five years), the employee’s DROP account accumulates a sum representing (1) the monthly retirement income the employee would be eligible to receive if he or she were to retire immediately, plus (2) the employee’s regular monthly contri-' buttons to the state retirement system (5% of the employee’s monthly salary), plus (3) interest on the foregoing amounts, currently at the rate of 4% per annum. Upon completion of the employee’s scheduled DROP participation, or upon certain involuntary events, the employee receives the funds accumulated in his or her DROP account. The wife gave testimony to the effect that the husband will accumulate between $200,000 and $300,000 in his DROP account during the agreed-upon period of service.

The husband filed this action on July 30, 2003. The wife filed an answer and a counterclaim. The trial court heard oral testimony and entered its judgment. The husband filed a timely notice of appeal to this court.

The judgment awarded the wife the marital home and its contents, 11 acres of land adjacent to the home, an automobile, and certain personal property. The husband claims that the property awarded to the wife is worth approximately $199,000; however, the wife introduced evidence from which the trial court could have concluded that the property awarded to the wife was worth approximately $164,000. The husband was ordered to pay all of the parties’ indebtedness.

The husband received approximately 32 acres of land located across the street from the marital home, a truck, a boat, and certain personal property. The husband argues that the assets he was awarded in the divorce judgment are worth only approximately $91,000, while the amount of debt for which he was ordered to be responsible approximates $129,000.

At trial, based on the duration of the parties’ marriage, the cause for divorce asserted by the wife (and discussed, infra), and the other evidence introduced, the wife requested an award of 50% of all of the husband’s retirement benefits. The judgment entered by the trial court instead awarded the wife 30% of any retirement benefits the husband will receive through the DROP program, 30% of the retirement benefits the husband will otherwise receive from the state, and 30% of the retirement benefits the husband will receive from the military. Similarly, the husband was awarded 30% of any retirement benefits the wife will receive from the state, to the extent those benefits are based on credits earned during the parties’ marriage. In addition, the wife was awarded periodic alimony in the amount of $750 per month.

The husband argues on appeal that the trial court erred in awarding to the wife a portion of the retirement benefits to be accumulated in the husband’s DROP account because, he contends, those benefits had not vested at the time the divorce action was filed; that the trial court erred in awarding the wife a share of the husband’s “normal” state retirement benefits where there was no evidence of the present value of those benefits; that the distribution of the marital assets was inequitable; and that the award of alimony was an abuse of discretion in light of the parties’ relative disposable incomes and the indebtedness the husband was required to pay.

Under the ore tenus rule, “ ‘appellate courts are not allowed to substitute their own judgment for that of the trial court if the trial court’s decision is supported by reasonable inferences to be drawn from the evidence.’ ” Yates v. El Bethel Primitive Baptist Church, 847 So.2d 331, 345 (Ala.2002) (quoting Ex parte Pielach, 681 So.2d 154, 155 (Ala.1996)). The award of alimony and the division of marital property are within the discretion of the trial court, and the judgment of the trial court is presumed correct when evidence is heard ore tenus. Ex parte Durbin, 818 So.2d 404, 408 (Ala.2001). To the extent that the trial court did not make detailed findings of fact, we must assume that “the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.” Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).

The award to the wife of a portion of the husband’s retirement benefits is governed by Ala.Code 1975, § 30-2-51(b), which authorizes, under certain conditions, a judge to include vested retirement benefits in the equitable distribution of marital property. Smith v. Smith, 836 So.2d 893, 899-900 (Ala.Civ.App.2002). Section 30-2-51(b) provides as follows:

“(b) The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:
“(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.
“(2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.
“(3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court.”

The husband’s first argument is that the award to the wife of a portion of the husband’s retirement benefits that will accumulate in his DROP account was in error because those benefits, according to the husband, were not vested at the time the divorce action was filed. The husband’s argument misapprehends the nature of DROP benefits. DROP is not a separate retirement program; rather, it is an option made available to certain state employees whose benefits have in fact already vested and who are eligible for immediate retirement. Ala.Code 1975, § 36-27-170(a), which creates DROP, provides that

“[t]he purpose of DROP is to allow, contractually, in lieu of immediate withdrawal from service and receipt of a retirement allowance, continued employment for a specific period of time, coupled with the deferral of receipt of a retirement allowance.... ”

(Emphasis added.)

The husband’s ERS retirement benefits were vested at the time the present action was filed, and the right to participate in DROP was a part of those vested benefits. In December 2003, while this action was pending, the husband reached age 55 and became eligible to retire immediately and begin receiving retirement benefits. He elected instead to participate in DROP, and thus to defer receipt of his vested retirement benefits. The DROP election did not change the character of the husband’s retirement benefits and did not re-suit in a new postdivorce asset that was not subject to distribution in the divorce.

The monthly retirement benefits to be accumulated in the husband’s DROP account are the benefits that had already accrued during his employment with the state before the filing of the divorce action, and they are not different in character from retirement benefits paid directly to a retired employee. An employee merely continues to earn his or her regular salary while his or her retirement benefits accumulate in a DROP account. Accordingly, at the conclusion of the required term of service, the husband will receive, on a deferred basis, the retirement benefits that he earned during the course of his marriage, and that he could have begun receiving in January 2004 but for his election to participate in DROP. The trial court therefore did not err in awarding to the wife a portion of those retirement benefits.

The trial court did err, however, by awarding to the wife a portion of that part of the husband’s DROP benefits representing the return to the husband of monthly contributions to the -state retirement plan (5% of his salary) during the period of his DROP service, plus interest on that amount. Those contributions will be derived from the husband’s salary, which will be earned after the filing of the divorce action and, therefore, do not constitute vested benefits subject to division under § 30-2-51.

In addition, we note that there is a possibility that, following the completion of the DROP period, the husband might opt to remain employed by the State of Alabama and, as a result, earn additional “normal” retirement benefits. See Ala. Code 1975, § 36—27—171(c)(3). Any such additional benefits would, of course, not be earned during the parties’ marriage and, therefore, would not be subject to distribution as part of the divorce. See § 30-2-51, Ala.Code 1975. Consequently, the trial court also erred to the extent that its judgment can be construed as awarding to the wife 30% of any such additional retirement benefits earned by the husband following the conclusion of his employment in connection with the DROP program.

The husband contends that the wife failed to establish the present value of his “normal” retirement benefits and thus was not entitled to any portion of those benefits. See Applegate v. Applegate 863 So.2d 1123 (Ala.Civ.App.2003); and McAlpine v. McAlpine, 865 So.2d 438 (Ala.Civ.App.2002). But see Wilkinson v. Wilkinson, 905 So.2d 1, 3 (Ala.Civ.App.2004) (Murdock, J., concurring specially).

At trial, the husband did not make the argument he now makes on appeal concerning the lack of sufficient evidence as to the present value of his state retirement benefits; nor did he file a post-judgment motion for a judgment as a matter of law or a postjudgment motion under Rule 59, Ala. R. Civ. P. The husband’s only argument at trial concerning retirement benefits was his argument, discussed above, that his DROP benefits would accrue after the divorce action was filed; he made no argument with respect to his retirement benefits other than his DROP benefits. In particular, he did not argue that the wife could not recover a portion of his retirement benefits without proving the present value thereof or raise an issue as to the lack of evidence regarding present value. We will not reverse a trial court based upon an argument not presented to it. Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988). See also New Properties, L.L.C. v. Stewart, 905 So.2d 797, 801-02 (Ala.2004) (citing, inter alia, Rule 52(b), Ala. R. Civ. P., and holding that “in a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review”); and Gates v. Gates, 830 So.2d 746, 751 (Ala.Civ.App.2002).

Finally, the husband argues on appeal that the trial court abused its discretion in awarding the wife $750 per month in periodic alimony, while also awarding to the wife what he contends is an excessive portion of the marital property. The award of alimony and the division of marital property are to be considered together, and are within the discretion of the trial court. Ex parte Durbin, 818 So.2d at 408. Although the distribution of marital property need not be equal, it must be equitable, and the determination as to what is equitable lies within the sound discretion of the trial court. Ex parte Durbin, 818 So.2d at 408. Factors to be considered in determining an equitable award of alimony and an equitable division of marital property include the parties’ respective ages, earning capacities, and future prospects, the parties’ standards of living and stations in life, the length of the marriage, the conduct of the parties in regard to the cause of the divorce, and the source, value, and types of marital properties. Rolls v. Rolls, 623 So.2d 744 (Ala.Civ.App.1993); Crowe v. Crowe, 602 So.2d 441, 443 (Ala.Civ.App.1992) (fault can be considered in the division of property, even if the divorce is not granted on the basis of fault); and Murray v. Murray, 598 So.2d 921 (Ala.Civ.App.1992).

At trial, the husband asked the trial court to award to the wife the parties’ marital home, while expressing a willingness to remain responsible for the pay-merit of the approximately $101,000 indebtedness on that home. He also asked the trial court to award to him the 11 acres of land adjacent to the marital home, as well as the 32 acres of land located across the road therefrom. The trial court followed the suggestion of the husband, with the exception of awarding to the wife the 11 acres of land adjacent to the marital home.

After carefully reviewing the record before us, including the evidence of the parties’ earning capacities, their future prospects, and the length of their marriage, and also considering the absence of evidence in the record as to such matters as the wife’s monthly expenses and the values of the retirement accounts at issue, we cannot conclude that the trial court’s judgment is due to be reversed with respect to its alimony award and division of marital property. As noted, an award of alimony and the division of marital property are within the sound discretion of the trial court, and the judgment of the trial court is presumed correct when evidence is heard ore tenus. Ex parte Durbin, 818 So.2d at 408. Further, in assessing the evidence presented ore tenus in this case, the trial court was required to and did make credibility determinations to which this court is required to give deference. Amaro v. Amaro, 843 So.2d 787, 790-91 (Ala.Civ.App.2002).

In addition, the record contains substantial evidence, albeit disputed by the husband, that the husband committed adultery. The trial court could have concluded that adulterous conduct by the husband was a cause for the divorce. As has also already been noted, the conduct of the parties in regard to the cause of the divorce may be considered by the trial court in awarding alimony and making a division of the marital property. While the trial court did not make explicit detailed findings with regard to the issue of the husband’s alleged adultery, we assume that “the trial court made those findings necessary to support its judgment.” Ex parte Bryowsky, 676 So.2d at 1324.

In light of the foregoing, we reverse the trial court’s judgment insofar as it awarded to the wife a portion of the following retirement benefits of the husband: (1) the return to the husband, with interest, of the monthly contribution the husband has made and will continue to make to the state retirement system in connection with his employment by the state following the filing of the divorce action, and (2) retirement benefits, if any, which the husband may accrue as a result of electing to remain employed by the State of Alabama after completing the term of service required of him in connection with his participation in the DROP program. In all other respects, the judgment of the trial court is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMPSON and PITTMAN, JJ„ concur.

CRAWLEY, P.J., and BRYAN, J., concur in the result, without writing.

      . The funds in the DROP program are either paid to the employee in a lump sum or rolled over into a qualified retirement plan, such as an individual retirement account.
      In the event the employee voluntarily terminates his or her participation in DROP, the employee receives his or her monthly contributions, plus interest, but any deferred retirement income that has accumulated in the DROP account is forfeited.

      . The husband does not assert that the trial court erred in awarding the wife a portion of his military retirement benefits. The wife did not cross-appeal with respect to the award to the husband of 30% of her retirement benefits.

      . If the husband leaves his employment with the state before his DROP period ends, he will immediately begin receiving directly the same retirement benefits that he would otherwise continue to accumulate in his DROP account.


source: Caselaw Access Project

author: CRAWLEY, Presiding Judge.

license: Public Domain

text:
    Thomas W. GLOOR III v. BancorpSOUTH BANK.
    2030673.
    Court of Civil Appeals of Alabama.
    Oct. 14, 2005.

      Henry E. Lagman, Birmingham, for appellant.
    John P. Scott, Jr., and Joshua H. Threadcraft of Starnes & Atchison, LLP, Birmingham, for appellee.
   CRAWLEY, Presiding Judge.

BancorpSouth Bank (“the Bank”) sued Thomas W. Gloor III, alleging that Gloor had defaulted on two promissory notes and seeking to recover on the debts evidenced by those notes. Gloor answered and counterclaimed, alleging breach of contract, fraud, and conversion. The Bank filed a motion for a summary judgment, with supporting evidence, on its claim and on Gloor’s counterclaims. The trial court entered a summary judgment in favor of the Bank on its claim and on Gloor’s counterclaims. After the denial of his post-judgment motion, Gloor timely appealed.

The following facts are undisputed. On August 17, 2000, the Bank loaned Gloor $8,500. Gloor signed a promissory note and a security agreement giving the Bank a security interest in a 1988 Mercedes-Benz automobile. On October 2, 2000, Gloor borrowed additional money from the Bank, paid off the $8,500 loan, and signed a new promissory note for $11,364.51, payable in 29 monthly installments of $304.83, with a final balloon payment of $5,265.64 due on April 1, 2003. As evidence of the indebtedness, Gloor signed the promissory note and a security agreement granting the Bank a security interest in his 1988 Mercedes-Benz automobile. The Bank was designated as the first lienholder on a certificate of title to the vehicle. The Bank’s security interest was perfected pursuant to § 32-8-61, Ala.Code 1975, a part of the Alabama Uniform Certificate of Title and Antitheft Act, § 32-8-1 et seq., Ala.Code 1975, by delivery of the certificate of title to the Department of Revenue.

On October 20, 2000, Gloor obtained a third loan from the Bank in the amount of $1,675. This loan was unsecured. For the third loan, Gloor signed a promissory note obligating him to make monthly payments to the Bank in the amount of $152.01 for 12 months.

After Gloor had made one payment on the $11,364.51 note, the Bank mistakenly mailed him a copy of that note stamped “paid” as well as the cértificate of title, which reflected that the Bank had released its lien on the vehicle. The parties agree that Gloor had not paid the note in full and that the release-of-lien designation was a mistake.

In support of its motion for a summary judgment, the Bank submitted, among other things, the deposition testimony of Gloor; the deposition testimony of Bruce Hathorn, the branch manager of the Bank; and the promissory notes and security agreements Gloor had signed. Gloor testified by deposition that in November 2000, after he had made only one payment on the $11,364.51 loan, he received in the mail a copy of the promissory note for $11,364.51 stamped “paid” and the certificate of title for the vehicle with the Bank’s lien marked “released.” Upon receipt of those documents, Gloor testified, he telephoned Bruce Hathorn at the Bank and told him that the Bank had “screwed up.” Gloor also stated that he told Hathorn that he knew the vehicle had “a substantial amount of loan value left” and that he needed to borrow some more money for Christmas. According to Gloor, Hathorn replied, “My god, we have screwed up. Get the title back down here; I will take care of this money you want to borrow; this loan is cancelled.” Gloor said that Hathorn told him to throw away the copy of the note stamped “paid” and that Hat-horn would “get [Gloor] a new note with new monies.”

Hathorn testified by deposition, that it was he who telephoned Gloor about the mistakenly released lien on the certificate of title, not the other way around. Hat-horn testified that he informed Gloor that “the bank had made a mistake and [had] inadvertently mailed the title to him released.” Hathorn said that he asked Gloor to return the certificate of title and that Gloor did so. According to Hathorn, Gloor came to the Bank, returned the certificate of title marked “released,” signed an application for a replacement certificate of title, and applied for another loan, stating that he needed about $8,000 to pay off existing loans at Union State Bank. Hathorn denied Gloor’s loan application the same day based on Gloor’s poor credit score, which, he said, had dropped in one month from 647 to 513. Hathorn said that when he rejected Gloor’s loan application, Gloor did not ask that Hathorn return the certificate of title that Gloor had surrendered to the Bank. Hathorn testified that a Bank employee subsequently destroyed the certificate of title that Gloor had returned and submitted to the Department of Revenue an application for a replacement certificate of title. Hathorn acknowledged that the Bank later received a replacement certificate of title reflecting the Bank’s security interest in Gloor’s vehicle. The trial court’s judgment states, in pertinent part:

“The undisputed facts are as follows:

“1. Thomas W. Gloor, III became indebted to BancorpSouth Bank as a result of three transactions: a loan for $8500 in August 2000, collateralized by a 1988 Mercedes Benz automobile; a new loan in October 2000 for $11,364.51 which paid off the August note and was also collateralized by the 1988 Mercedes Benz; and an unsecured loan in the amount of $1675.00 later in October 2000.
“2. The only payment on these debts made by Gloor was one payment on the second collateralized note; in other words, neither note was paid in full.
“3. Sometime after October 2, 2000, BancorpSouth mistakenly mailed Gloor the certificate of title to the 1988 Mercedes Benz.
“4. Sometime after October 2, 2000, Gloor received a copy of the October collateralized note with a ‘paid’ stamp on it, but the copy was not the original nor was it two-sided as is the original.
“5. Gloor knew that the sending of the certificate of title and the paid-stamped note were mistakes.
“6. In November 2000, Gloor took the certificate of title to loan officer Bruce Hathorn in an effort to receive additional loan proceeds. He states that Hathorn promised him another loan, but later in the same day called him and told him that his loan request was denied.
“7. Gloor did not deliver the certificate of title to the State of Alabama Department of Revenue.
“The Court finds as a matter of law:
“1. One of the primary purposes of the Alabama Uniform Certificate of Title and Antitheft Act is to protect third parties from acquiring automobiles which are being sold either unlawfully or in derogation of the rights of secured creditors. In this regard its effect is similar to the Real Property Recording Act.
“2. Had Gloor sought a new certificate of title from the State of Alabama Department of Revenue, knowing that [the] note underlying the lien shown on that title was not satisfied and had not been paid in full, he would have been perpetrating a fraud. This is something no court should countenance.
“3. The Court finds persuasive the cases of Peoples Bank of South Carolina, Inc. v. Robinson, 272 S.C. 155, 249 S.E.2d 784 (1978), and Gover v. Home & City Savings Bank, 574 So.2d 306 (Fla. 1st Dist.Ct.App.1991). The cases of In re Blackerby, 53 B.R. 649 (Bankr.N.D.Ala.1985), and In re Marshall, 266 B.R. 554 (Bankr.M.D.Ga.2001), are also instructive.
“4. Gloor is still indebted to Ban-corpSouth Bank on the two unpaid notes at issue in this case. See Deason v. Thrash, 465 So.2d 1118 (Ala.1985).
“5. BancorpSouth was not obligated to loan additional funds to Gloor when he surrendered the certificate of title to the 1988 Mercedes Benz. Gloor was merely doing that which he was required to do under the terms of the October 2000 collateralized note.
“6. There was no meeting of the minds as to any contract terms regarding the loan application Gloor made when the certificate of title was returned to the bank.
“7. There was no contract between Gloor and BancorpSouth Bank in November 2000 extant; therefore, there could be no breach of such a contract.”

Gloor appeals the trial court’s summary judgment on the Bank’s claim relating to the promissory note evidencing the $11,364.51 loan and on his counterclaims relating to the same note; Gloor does not raise any issues regarding the note evidencing the $1,675 uncollateralized loan.

Standard of Review

Appellate review of a summary judgment is de novo. Ex parte Ballew, 771 So.2d 1040 (Ala.2000). A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see § 12-21-12(d), Ala.Code 1975.

The Bank’s Claim Against Gloor

Citing § 8-1-23, Ala.Code 1975, and § 7-3-604, Ala.Code 1975, Gloor argues that his promissory note was canceled and that the lien on his vehicle was discharged when the Bank surrendered to him a copy of a note marked “paid” and a certificate of title indicating that the Bank had released the hen on his vehicle. Section 8-1-23 provides:

“An obligation is extinguished by a release therefrom given to the debtor by the creditor upon a new consideration or in writing with or without new consideration.”

Section 7-3-604(a) provides:

“(a) A person entitled to enforce an instrument, with or without consideration, may discharge the obligation of a party to pay the instrument (i) by an intentional voluntary act, such as surrender of the instrument to the party, destruction, mutilation, or cancellation of the instrument, cancellation or striking out of the party’s signature, or the addition of words to the instrument indicating discharge, or (ii) by agreeing not to sue or otherwise renouncing rights against the party by a signed writing.”

Section 8-1-23 applies to contractual obligations generally, without regard to whether the obligation is evidenced by an “instrument,” whereas § 7-3-604, a part of Alabama’s version of the Uniform Commercial Code (“the UCC”), specifically applies to the cancellation and surrender of an instrument, which includes a promissory note, see § 7 — 3—104(e), Ala.Code 1975. We conclude that § 7-3-604 is the statutory provision applicable in this case. Accord FirsTier Bank, N.A. v. Triplett, 242 Neb. 614, 497 N.W.2d 339 (1993) (stating that discharge by cancellation and surrender of an instrument is. governed by the Nebraska version of the UCC § 3-604).

Before the enactment of § 7-3-604, former § 7-3-605 governed the discharge and surrender of promissory notes and other negotiable instruments. See Act No. 549, Ala. Acts 1965. In 1995, however, former § 7-3-605 was repealed and replaced with the current § 7-3-604. See Act No. 668, Ala. Acts 1995. Although the issue has not arisen in any reported Alabama decision, there is a sizeable body of caselaw in other jurisdictions concerning whether the mistaken cancellation and surrender of a promissory note or other negotiable instrument discharges the debt evidenced by the note or other negotiable instrument. See generally Michael P. Sullivan, Annotation, Unintentional Cancellation of Negotiable Instrument Under UCC Article 3, 59 A.L.R.4th 617 (1988). Because much of this caselaw is based on former UCC § 3-605, we will set out the former provision. Former § 7-3-605 provided:

“(1) The holder of an instrument may even without consideration discharge any party:
“(a) In any manner apparent on the face of the instrument or the indorsement, as by intentionally cancelling the instrument or the party’s signature by destruction or mutilation or by striking out the party’s signature; or
“(b) By renouncing his rights by a writing signed and delivered or by surrender of the instrument to the party to be discharged.
“(2) Neither cancellation nor renunciation without surrender of the instrument affects the title thereto.”

The majority of courts in other jurisdictions have held that the cancellation and surrender of an instrument has no effect when it is the product of mistake or clerical error. See, e.g., Guaranty Bank & Trust Co. v. Dowling, 4 Conn.App. 376, 494 A.2d 1216 (1985); Cover v. Home & City Sav. Bank, 574 So.2d 306 (Fla.Dist.Ct.App.1991); Richardson v. First Nat’l Bank of Louisville, 660 S.W.2d 678 (Ky.Ct.App.1983); FirsTier Bank, N.A. v. Triplett, supra; Los Alamos Credit Union v. Bowling, 108 N.M. 113, 767 P.2d 352 (1989); and Peoples Bank of South Carolina, Inc. v. Robinson, 272 S.C. 155, 249 S.E.2d 784 (1978).

The facts of Peoples Bank of South Carolina, Inc. v. Robinson, supra, are illustrative. In Robinson, the borrowers executed a promissory note payable to the bank and a security agreement granting the bank a lien on their automobile. The bank was designated as the first lienholder on the certificate of title of the vehicle. Before the borrowers paid the note in full, the bank made a clerical error, marked the note and security agreement “paid and satisfied,” and returned them to the borrower, with a release of lien noted on the certificate of title. Contending that the bank had discharged their indebtedness pursuant to the South Carolina version of § 3-605(l)(b) of the UCC, the borrowers made no further payments on the note. The bank sued for possession of the automobile, and the trial court entered a summary judgment in favor of the bank. Affirming that judgment, the Supreme Court of South Carolina held:

“Although the record reveals that the promissory note and security agreement were marked ‘Paid and Satisfied’ and were returned to [the borrowers] with a notarized release of lien on their certificate of title, we cannot conclude that these unintentional actions constitute a discharge as envisioned by § 36-3-605(l)(b). Commentators on the Uniform Commercial Code conclude that the courts ‘... have glossed this section (36-3-605(l)(b)) by requiring that surrender of the instrument be accompanied by an intent to discharge the party.’ J. White, R. Summers, Uniform Commercial Code at 447 (1972).”

272 S.C. at 157, 249 S.E.2d at 785.

In the present case, the Bank points out that the evidence was undisputed that the Bank had made a mistake — and that Gloor knew that the Bank had made a mistake— in surrendering to Gloor the note marked “paid” and the certificate of title with a release-of-lien designation. The Bank argues that because of the mistake it did not, as a matter of law, have the intent to discharge Gloor’s indebtedness. The Bank cites § 32-8-64(a), Ala. Code 1975, a part of the Alabama Uniform Certificate of Title and Antitheft Act, for the proposition that the purported release of a lien on a vehicle certificate of title is invalid as a matter of law unless the security interest has been satisfied. Section 32-8-64(a) provides:

“(a) Upon the satisfaction of a security interest in a vehicle for which the certificate of title is in the possession of the lienholder, he shall, within 10 days after demand execute a release of his security interest, in the space provided therefor on the certificate or as the department prescribes, and mail or deliver the certificate and release to the next lienholder named therein, or, if none, to the owner or any person who delivers to the lienholder an authorization from the owner to receive the certificate. The owner, other than a dealer holding the vehicle for resale, shall promptly cause the certificate and release to be mailed or delivered to the department, which shall release the lienholder’s rights on the certificate or issue a new certificate.”

(Emphasis added.)

In Smith v. American Honda Finance Corp. (In re Marshall), 266 B.R. 554 (Bankr.M.D.Ga.2001), the creditor mistakenly executed a release of its lien on the certificate of title to a vehicle that secured an installment contract with the debtor. The creditor mailed the certificate of title to the debtor. After realizing its mistake, the creditor applied for a replacement title. The debtor filed for bankruptcy protection listing the creditor as unsecured; the creditor filed a claim as a secured creditor. The trustee in bankruptcy challenged the creditor’s security interest in the vehicle, contending that the creditor had released its lien on the vehicle when it mailed the debtor a copy of the certificate of title marked “released.” The parties stipulated that the debtor had not paid the debt and had not mailed the certificate of title marked “released” to the Alabama Department of Revenue. Applying Alabama law, the United States Bankruptcy Court for the Middle District of Georgia held that the creditor had a perfected security interest in the debtor’s vehicle and that the trustee could not avoid that interest. The court explained:

“Section 32-8-64(a) of the Alabama Code governs the issue of the release of a security interest in an automobile. After conducting a plain reading of § 32-8-64(a), the court finds that three steps must be completed in order for a lien release to be effective: (1) execution of a release on the certificate; (2) delivery of the certificate to the next lienholder or owner; and (3) delivery of the certificate to the [Department of Revenue] by the next lienholder or owner. Moreover, given the beginning language of the statute, ‘[u]pon satisfaction of the security interest ...,’ the court finds that the satisfaction of the lien is a prerequisite for a release to be valid. See General Electric Capital Corp. v. Spring Grove Transport, Inc. (In re Spring Grove Transport, Inc.), 202 B.R. 862, 866 (Bankr.E.D.Va.1996) (distinguishing Ala. Code § 32-8-64(a) from Virginia law). Therefore, because the lien was not satisfied and the final step of delivery to the [Department of Revenue] was not completed, the court finds that [the creditor] did not effectively release its security interest in the [vehicle].”

Marshall, 266 B.R. at 556 (footnote omitted). See also Southtrust Bank of Alabama v. Toffel (In re Blackerby), 53 B.R. 649, 653 (Bankr.N.D.Ala.1985) (holding that a bank did not release its security interest in the debtor’s vehicle “simply by virtue of its mistakenly so noting [a release] on the certificate of title”).

In G.E. Capital Mortgage Services, Inc. v. Neely, 135 N.C.App. 187, 519 S.E.2d 553 (1999), the court held that when the mortgagors admitted that a note, which had been mistakenly canceled by the mortgagee, was never paid and that the mortgagee had canceled the debt in error, “the only issue remaining [was] purely a legal one, namely the effect of the Note being marked ‘Paid and Satisfied.’ ” 135 N.C.App. at 190, 519 S.E.2d at 555. In the present case, Gloor admitted that he had made only one payment on the note and that, at the time he received the note and certificate of title from the Bank, he had not satisfied his debt to the Bank. Gloor also admitted that he knew the Bank had made a mistake in surrendering the note and certificate of title to him.

Gloor argues, however, that the “mistake” cases decided by the courts of other jurisdictions are distinguishable because, he says, none of them involved a creditor’s promise to cancel a preexisting debt and to lend the debtor “new monies” in exchange for the debtor’s surrendering the instrument evidencing the mistakenly discharged preexisting debt. Gloor argues that he provided the Bank with new consideration- — surrendering the certificate of title with the mistakenly released lien — -in exchange for the Bank’s promise to cancel his debt and to make him a new loan.

Gloor’s “new consideration” argument is flawed because in returning the certificate of title to the Bank he was doing only what he was already legally obligated to do according to the terms of the promissory note he had signed. Gloor agreed

“[to] defend [the Mercedes-Benz automobile] against any other claim ... to do whatever [the Bank] require[d] to perfect [its] interest and keep [its] priority ... [and] not do anything to harm [the Bank’s] position.”

In Griffin v. Hardin, 456 So.2d 1113 (Ala.Civ.App.1984), this court held that a judgment debtor’s offer to pay a weekly amount on a judgment that she was legally obligated to pay stated no consideration for a new agreement with the judgment creditor. The court stated:

“It is an established principle that the doing or undertaking to do that which one is already under a legal obligation to do by his contract is no consideration for a secondary, subsequent or new agreement. Little v. Redditt, 264 Ala. 371, 88 So.2d 354 (1956). It is stated in 17 C.J.S. Contracts § 111 (1963): ‘Where a party is under a duty created or imposed by law to do what he does or promises to do, his act or promise is clearly of no value and is not sufficient consideration for a promise given in return.’ Hill v. Hill, 217 Ala. 235, 115 So. 258 (1928). A promise to do what one is already under a legal obligation to do is not a sufficient consideration for another contract. South and N.A.R. Co. v. Highland Avenue and Belt Railroad Co., 119 Ala. 105, 24 So. 114 (1898).”

456 So.2d at 1116. The summary judgment in favor of the Bank on its claim against Gloor is due to be affirmed.

Gloor’s Counterclaims Against the Bank

Gloor’s counterclaims against the Bank alleged breach of contract, fraud, and conversion. On appeal, Gloor makes no argument with respect to his counterclaim alleging conversion, and, therefore, we do not address it. When an appellant fails to argue an issue in brief, that issue is waived. Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982).

Gloor alleged the same operative facts for both the breach-of-contract and fraud claims: (1) that Hathorn promised to (and, Gloor says, thereby misrepresented the fact that he would) cancel the $11,364.51 loan and lend Gloor “new monies” if Gloor returned the certificate of title to the Bank; (2) that Gloor relied on Hathorn’s promise and returned the certificate of title; and (3) that Hathorn rejected Gloor’s loan application.

On the breach-of-contract claim, the trial court determined that no contract was formed because Gloor’s surrender of the certificate of title did not constitute consideration for a new agreement. The court determined that “Gloor was merely doing that which he was required to do under the terms of the October 2000 collat-eralized note.” The trial court also determined that the parties had no “meeting of the minds as to any contract terms regarding the loan application Gloor made when the certificate of title was returned to the Bank.” Although on appeal Gloor makes no argument and cites no authority for reversing the trial court’s conclusion that the parties had no meeting of the minds concerning the terms and conditions of a new loan, it is clear that the trial court’s conclusion was correct. Hathorn denied making the statement that if Gloor would return the certificate of title, the Bank would lend him “new monies,” but even assuming that Hathorn made the alleged statement, it constitutes, at most, an unenforceable agreement to enter into a loan agreement in the future. See Stiegler v. Dittman, 584 So.2d 507, 518 (Ala.1991).

The trial court stated no conclusions of law with respect to the counterclaim alleging fraud. Nevertheless, we conclude that the trial court’s summary judgment in favor of the Bank on Gloor’s counterclaim alleging fraud is due to be affirmed because Gloor presented no evidence (1) that at the time Hathorn made the alleged promise Hathorn had no intent to perform; and (2) that Gloor was injured by his reliance on Hathorn’s alleged promise.

In Graham Foods, Inc. v. First Alabama Bank, 567 So.2d 859 (Ala.1990), the supreme court held that a bank customer’s allegation that a bank officer had assured him that his loan would be approved and that acceptance by the bank’s credit committee “ ‘was a formality and was no obstacle,’ ” 567 So.2d at 860, did not state a claim for promissory fraud. The bank officer denied assuring the customer that the loan would be approved and stated that at the time the customer submitted his loan application he did not know whether the loan would be approved by the bank’s credit committee. The court stated:

“The alleged fraud consists of [the bank officer’s] alleged statements that the bank would lend [the bank customer] the additional money.... [The bank customer] concedes that its complaint alleges only promissory fraud, because the alleged misrepresentations concerned actions to be taken in the future. Because fraud requires a misrepresentation of a material existing fact, an action for promissory fraud requires proof of the promisor’s intent at the time of making the representation not to perform the act promised, that is, proof that he had a present intent to deceive.”

567 So.2d at 861. The court concluded:

“[A] finding that [the bank officer] promised the loan, coupled with the fact of his denial of such a promise, does not prove intent to deceive. It tends to prove that [the bank officer] recklessly made statements beyond his authority, but not that he intended that [the customer] not receive the loan or that he intended to deceive [the customer]. Reckless misrepresentation will not support a charge of promissory fraud. Thus, the assurances that [the customer] would receive the loan will not support a fraud claim.”

567 So.2d at 862 (citation omitted). In the present case, the evidence established that Gloor’s credit score was 647 on October 2, 2000, when the Bank loaned him $11,364.51. A little more than one month later, when the Bank denied the loan application that is the subject of Gloor’s counterclaim alleging fraud, Gloor’s credit score had dropped to 513, a score that Gloor admitted was “low.” Those facts do not support the allegation that, if Hathorn promised to lend Gloor “new monies,” he had the intent to deceive Gloor and was guilty of promissory fraud.

In fraud actions, damages must be shown because injury is an essential element of the cause of action. Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 485, 233 So.2d 484, 491 (1970). Although Gloor’s pleading and proof on the fraud claim are not models of clarity, Gloor apparently contends that he was injured when he surrendered “something of value”' — the certificate of title — to the Bank in reliance on Hathorn’s alleged promise to lend him “new monies.” As we have previously discussed, Gloor suffered no legal injury by surrendering the certificate of title to the Bank. See Griffin v. Hardin, supra. See also Amason v. First State Bank of Lineville, 369 So.2d 547, 551 (Ala.1979)(stating that “[t]o merely aver performance of what one is under a preexisting duty to perform does not satisfy the legal requirement that one show he was injured by the misrepresentations upon which he relied”).

The judgment of the Jefferson Circuit Court is affirmed.

AFFIRMED.

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

      . Hathorn stated that Gloor did not mention that he had also received a copy of the note stamped "paid.”


author: THOMPSON, Judge.

text:
    Phyllis Dianne HAYES v. The ESTATE OF Clayton M. REYNOLDS, deceased, et al.
    2040677.
    Court of Civil Appeals of Alabama.
    Oct. 21, 2005.
    Roger W. Pierce of Haygood, Cleveland, Pierce, Mattson & Thompson, LLP, Auburn; and Brian P. Strength of Cochran, Cherry, Givens & Smith, P,C., Tuskegee, for appellant.
    Deborah Alley Smith and Jennifer M. Thompson of Christian & Small, LLP, Birmingham, for appellees.
   THOMPSON, Judge.

Phyllis Dianne Hayes, the primary beneficiary of a contested will, appeals, the entry of a summary judgment in favor of the adult children of Clayton M. Reynolds (“Reynolds”), deceased, that invalidated the will. Claiming that Reynolds lacked the requisite testamentary capacity when he executed the will, Paula R. Baran, Jamie R. Caldwell, and Clayton M. Reynolds III (“the children”), all of whom are the children of Reynolds, contested the will’s validity in the probate court of Macon County. The matter was removed to the Macon Circuit Court (“the trial court”) pursuant to § 43-8-198, Ala.Code 1975.

The children moved for a summary judgment, and the parties submitted briefs to the trial court. After a hearing on the motion, the trial court entered a summary judgment in favor of the children. The trial court determined that “the overwhelming medical psychiatric evidence” and “the entire record submitted” on the motion for a summary judgment supported its judgment. Hayes timely appealed to the supreme court, which transferred the case to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Reynolds, a retired telephone technician and radio operator in the Merchant Marine, resided in Macon County until his death on June 16, 2002. In May 2000, Reynolds executed a will in which he devised all of his property and assets to his three children-and a life estate in his house to his cohabitating female companion, Phyllis Dianne Hayes. Reynolds’s ■ longtime attorney, Joel Scarborough, Jr., drafted the will in May 2000. In August 2000, Reynolds asked his two daughters to help him manage his finances, and he gave one of his daughters, Jamie Caldwell, his general power of attorney.

In September 2000, Reynolds’s regular physician referred -him to Dr. Stephen Bryan at the Alabama Neurological Center in Montgomery. Dr. Bryan diagnosed Reynolds as having Alzheimer-type dementia related to alcohol consumption, In June 2001, Reynolds underwent heart surgery. Reynolds stayed in the hospital for one month.after his surgery, and,, due to the apparent ■ worsening of his mental state, Reynolds was referred to Warren Jackson; Ph.D., in Birmingham, to undergo a comprehensive neuropsychological evaluation.

Dr. Jackson examined Reynolds in July 2001. Reynolds had not consumed alcohol in over 30 days at the time of that evaluation. At the time of the evaluation, Reynolds was 72 years old and was taking six different, prescription medications. Dr. Jackson testified that three of those medications — Ativan, Aricept, and Serax — could affect a patient’s state of mind.

Dr. Jackson diagnosed Reynolds with Alzheimer-type dementia. Dr. Jackson noted that some of the short-term memory tests indicated that Reynolds “had no recall whatsoever.” Dr. Jackson opined that he expected Reynolds’s mental state to “decline over time.” When asked if Reynolds would have been able to absorb information after the date of the evaluation, Dr. Jackson responded “absolutely not.” Dr. Jackson advised Reynolds’s family not to allow him to operate an automobile and to encourage him not to consume alcohol because alcohol could exacerbate Reynolds’s symptoms.

Shortly after Dr. Jackson’s diagnosis, Hayes, against the wishes of the children, informed Reynolds about his Alzheimer-type dementia. The children testified that Hayes also told Reynolds that the children had somehow arranged the evaluation or diagnosis in order to prevent Reynolds from making another will. Hayes served as Reynolds’s primary caregiver after his surgery, and each month Caldwell, via Hayes, provided money for support to Reynolds. Reynolds continued to drive his automobile and consume alcohol during that time.

According to the children, Reynolds became increasingly hostile towards them, a fact that they contend was exacerbated by Hayes’s influence. In the fall of 2001, Reynolds chased Caldwell with a shovel, and, on another occasion, he pushed her to the ground. The children testified that Reynolds’s mental state steadily deteriorated after his June 2001 heart surgery.

In January 2002, Reynolds approached Scarborough about drafting a new will. Because he was aware of Dr. Jackson’s diagnosis, Scarborough arranged for Reynolds to undergo another psychological evaluation. That evaluation, performed by Dr. Paul Blanton, supported Dr. Jackson’s diagnosis. Dr. Blanton reported that, at the time of the evaluation, Reynolds did not know the day of the month or the approximate time of day. Scarborough refused to draft a new will for Reynolds.

In February 2002, the children petitioned the probate court to establish a guardianship and conservatorship for Reynolds. The probate court held a hearing on the matter on April 30, 2002. After hearing the testimony of several witnesses, the probate court took the matter under advisement and ultimately appointed Hayes to be Reynolds’s guardian and Caldwell and Baran to be conservators of Reynolds’s estate. The probate judge testified in his deposition in this matter that Reynolds stated at the April 30, 2002, hearing that he planned to draft a new will and exclude the children from sharing in his estate. The probate judge also testified that Reynolds appeared to understand the questions asked of him during the hearing and gave appropriate answers to the questions. Nonetheless, on June 11, 2002, the probate judge determined that Reynolds was no longer capable of managing “his own personal affairs or making important decisions.”

On May 1, 2002, the day after the hearing before the probate court, Hayes drove Reynolds to another attorney, Larry Cooper, in order for Reynolds to make a new will. Before that meeting, Cooper had never met Reynolds. Reynolds informed Cooper that he was upset with the children and that he wanted to leave the children out of his will. Reynolds told Cooper about his past heart troubles, but neither Reynolds nor Hayes informed Cooper of Reynolds’s Alzheimer-type dementia. Reynolds and Hayes also told Cooper that Reynolds had been deemed competent in the guardianship and conservatorship matters that were still pending in the probate court.

That night, Cooper drafted the new will for Reynolds. In accordance with Reynolds’s instructions, the new will devised essentially all of Reynolds’s estate to Hayes; the will specified that the children were to receive five dollars each. Hayes’s two daughters were named as alternative beneficiaries in the event that Hayes predeceased Reynolds. Hayes and Reynolds returned to Cooper’s office the next day, on May 2, 2002, and reviewed the draft of the will Cooper had prepared the night before. Reynolds and Hayes noted a few details in the draft that needed to be corrected. One such detail involved an incorrect description of the county in which some of Reynolds’s property was located. Cooper made the changes, and Reynolds executed the new will on May 2, 2002.

In his deposition, Cooper testified that Reynolds seemed aware that he was making a new will during their meeting on May 1, 2002, and that Reynolds seemed to know what he was doing as he executed the will on May 2, 2002. Cooper also testified that Hayes was with Reynolds during their discussions. Cooper could not remember whether Hayes and Reynolds were alone as they reviewed the draft of the will, and determined the changes that needed to be made.

Reynolds died on June 16, 2002. Two weeks after Reynolds’s death, the children attempted to probate the May 2000 will. Hayes subsequently came forward with the May 2002 will, and these proceedings followed.

A motion for a summary judgment is properly granted where no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; and Bussey v. John Deere Co., 531 So.2d 860, 862-63 (Ala.1988). “When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present ‘substantial evidence’ creating a genuine issue of material fact.” Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999) (citing Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989)). Substantial evidence, is “ ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Horton v. Rasberry, 852 So.2d 155, 157 (Ala.Civ.App.2002) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). When reviewing a summary judgment, appellate courts consider the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant. Carter v. Innisfree Hotel, Inc., 661 So.2d 1174, 1177 (Ala.1995).

A testator must have testamentary capacity to execute a valid will. Specifically, a testator must have

“ ‘mind and memory sufficient to recall and remember the property [he] was about to bequeath, and the objects of [his] bounty, and the disposition which [he] wished to make — to know and understand the nature and consequences of the business to be performed, and to discern the simple and obvious relation of its elements to each other....’”

Fletcher v. DeLoach, 360 So.2d 316, 318 (Ala.1978) (quoting Knox v. Knox, 95 Ala. 495, 503,11 So. 125, 128 (1892)). However, it is presumed that every person who has obtained the age of majority has the capacity to make a valid will, and the person challenging a will has the burden of proving that the testator lacked testamentary capacity. Horton, supra, citing Fletcher, supra, and Knox, supra. A lack of capacity may be shown by evidence indicating that the testator suffered from a permanent type of insanity before executing the will or evidence indicating that the testator lacked “capacity at the time [he] executed the will.” Fletcher, 360 So.2d at 318.

Whether a testator lacked testamentary capacity is generally a question of fact. See, e.g., Allen v. Sconyers, 669 So.2d 113, 118 (Ala.1995). Our supreme court has upheld a summary judgment in favor of a will’s proponent upon a showing that the testator merely displayed common signs of aging such as occasional forgetfulness. H.B. Cleveland v. Central Bank of the South, 574 So.2d 741, 743 (Ala.1991). In reversing a summary judgment invalidating a will, this court has noted that a testator may be found to be mentally competent to execute a will, despite evidence indicating that the testator was previously diagnosed as having dementia. Speegle v. Oswald, 774 So.2d 595, 596 (Ala.Civ.App.2000) (citing Sanders v. Brooks, 611 So.2d 336, 338 (Ala.1992)). However, our supreme court has reversed a summary judgment upholding the validity of a will because, as the court noted, the testatrix suffered from Alzheimer-type dementia and, eight days after she executed the challenged will, she had been seen by her doctor who determined that her mental condition had deteriorated. Allen, supra.

There is conflicting evidence regarding Reynolds’s mental state immediately before and at the time of the execution of the 2002 will. In support of their motion for a summary judgment, the children presented evidence that Reynolds suffered from Alzheimer-type dementia before executing the 2002 will. See Horton, supra. The children presented the detailed deposition testimony of Dr. Jackson, who described his diagnosis of Reynolds as “not a close case.” Further, just two days before Reynolds executed the 2002 will, the probate court held a hearing that led to its judgment declaring Reynolds incompetent and appointing a guardian and conservator. Further, neither Reynolds nor Hayes told Cooper about Reynolds’s Alzheimer-type dementia diagnoses. Cooper was also not fully informed about the proceedings in the probate court. Dr. Jackson’s testimony, as well as the testimony of Reynolds’s daughters, is in stark contrast to the testimony presented by Hayes.

In opposition to the children’s motion for a summary judgment, Hayes presented the deposition testimony of the probate judge and Cooper. The probate judge testified that only two days before Reynolds executed the will Reynolds seemed to understand the questions asked of him and answered those questions appropriately. The probate court, nonetheless, declared Reynolds to be incompetent based upon the evidence presented. Cooper testified that Reynolds appeared to understand what property he owned and that he was making a new will. Aso, despite his not being fully informed of Reynolds’s mental-health issues, Cooper testified that Reynolds said that he was upset with the children and that he understood that he was essentially writing them out of the will.

Viewing all of the evidence in the light most favorable to Hayes and resolving all reasonable doubts regarding the existence of a genuine issue of material fact in favor of Hayes, the nonmovant, as we must, we conclude that Hayes presented substantial evidence sufficient to defeat the children’s motion for a summary judgment. Given the conflicting evidence, we must conclude that the question of Reynolds’s testamentary capacity is a question of fact that is not appropriate for resolution by a summary judgment. See McClung v. McClung, 709 So.2d 30, 32 (Ala.Civ.App.1997).

Accordingly, we reverse the trial court’s summary judgment in favor of the children and remand the cause for further proceedings.

REVERSED AND REMANDED.

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

      . We note that our supreme court recently considered the trial court's entry of a summary judgment in favor of Reynolds’s children in an unrelated matter involving Reynolds's capacity to contract. Ex parte Chris Langley Timber & Mgmt., Inc., 923 So.2d 1100 (Ala.2005). In that case, Reynolds entered into a contract for the sale of timber approximately three months before the date on which he executed the will at issue in this case. Our supreme court determined that there was a genuine issue of material fact regarding whether Reynolds had the capacity to enter into a contract and remanded the case. Id.

      . A testator being assigned a guardian and/or conservator does not, by itself, preclude the testator from executing a valid will. Houston v. Grigsby, 217 Ala. 506, 116 So. 686 (1928) (holding that proof of the adjudication of insanity and that the testatrix was under guardianship of the probate court when she executed the contested will was sufficient to cast upon the will’s proponent the burden of establishing testamentary capacity at the time she executed the will). See also Toler v. Murray, 886 So.2d 76 (Ala.2004) (stating that a ward of the probate court retains testamentary authority and, therefore, may, upon a proper showing by the will’s proponent, be deemed to have had testamentary capacity at the time of the will's execution).


author: WISE, Judge.

text:
    Tony Terrell MACK v. STATE of Alabama.
    CR-04-1060.
    Court of Criminal Appeals of Alabama.
    June 24, 2005.
    Tony Terrell Mack, pro se.
    Troy King, atty. gen., and Cecil G. Bren-dle, Jr., asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Tony Terrell Mack, appeals from the denial of his motion to reconsider his sentence, made pursuant to § 13A-5-9.1, Ala.Code 1975. On April 7, 1999, Mack was convicted of one count of unlawful possession of a controlled substance — marijuana—and one count of unlawful distribution of a controlled substance — cocaine. He was sentenced, as an habitual offender with 3 prior felonies, to a term of 15 years’ imprisonment for the marijuana-possession conviction and to life imprisonment for the cocaine-distribution conviction. This Court affirmed Mack’s convictions and sentences on December 3, 1999, by unpublished memorandum. See Mack v. State (No. CR-98-1328), 796 So.2d 449 (Ala.Crim.App.1999) (table). On May 7, 2000, Mack pleaded guilty to one count of first-degree escape and was sentenced as a habitual offender to life imprisonment. No appeal was taken from this conviction.

On September 20, 2004, Mack filed a motion for reconsideration in the Tuscaloosa Circuit Court, seeking reconsideration of the life sentence imposed as a result of his conviction for unlawful distribution of a controlled substance. On December 2, 2004, Mack filed an amended motion for reconsideration, reasserting his request to be resentenced for his cocaine-distribution conviction and adding a request to be re-sentenced for his escape conviction.

On January 20, 2005, Circuit Judge Thomas S. Wilson, the same judge who sentenced Mack in the cases in question, denied Mack’s motion. In its order, the court stated:

“The defendant files this motion for sentence reduction pursuant to Code of Aabama, § 13A-5-9.1. This Code section allows retroactive application of the amendment to § 13A-5-9 allowing the court to sentence a defendant convicted of a Class A felony with three prior felony convictions to be sentenced to life without parole or life. The defendant in this case received a life sentence. Therefore,. there is no relief available to the defendant under § 13A-5-9.1. The petition is therefore overruled and denied.”

(C. 10.) This appeal followed.

Mack argues that the trial court erred when it summarily dismissed his motion - for reconsideration. Specifically, Mack contends that persons convicted of Class B felony offenses and who have at least three prior felony convictions are likewise eligible to file a motion for reconsideration pursuant to § 13A-5-9.1, Aa. Code 1975. We agree.

In 2000, the Aabama Legislature amended § 13A-5-9, Aa.Code, the Habitual Felony Offender Act (“the HFOA”). Before the legislature amended § 13A-5-9, a defendant convicted of a Class A felony, and who had three or more prior felony convictions, was subject to a mandatory sentence of life imprisonment without the possibility of parole. Similarly, a defendant convicted of a Class B felony who had three or more felony convictions was subject to a mandatory sentence of imprisonment for life. Following the 2000 amendment to § 13A-5-9 that became effective May 25, 2000, a defendant convicted of a Class A felony, who possessed three or more prior felony convictions and had no prior convictions for any Class A felonies, is eligible for a sentence of imprisonment for life or life imprisonment without parole at the trial court’s discretion. § 13A-5-9(c)(3), Aa.Code 1975. Likewise, a defendant convicted of a Class B felony, who had three or more prior felony convictions, is eligible for a sentence of imprisonment for life or for any term not less than 20 years. See § 13A-5-9(c)(2), Aa.Code 1975.

In 2001, the Aabama Legislature enacted Aabama Act No. 2001-977, codified as § 13A-5-9.1, Aa.Code 1975, mandating that the 2000 amendments be applied retroactively. The statute provides:

“The provisions of Section 13A-5-9 shall be applied retroactively by the sentencing judge or presiding judge for consideration of early parole of each nonviolent convicted offender based on evaluations performed by the Department of Corrections and approved by the Board of Pardons and Paroles and submitted to the court.”

In Kirby v. State, 899 So.2d 968 (Ala.2004), the Alabama Supreme Court discussed which inmates were eligible to seek resentencing, stating:

“Reading § 13A-5-9.1 in conjunction with § 13A-5-9, it is clear that a sentencing judge or a presiding judge can resentence only two narrowly defined classes of habitual offenders: those who had been sentenced to life imprisonment without the possibility of parole under the mandatory provisions of the HFOA upon conviction of a Class A felony, with no prior Class A felony convictions; and those who had been sentenced ■ to life imprisonment under the mandatory provisions of the HFOA upon conviction of a Class B felony. Moreover, of those habitual offenders, the judge can resentence only those who are nonviolent offenders.
“We conclude that the state’s trial judges have the authority under the statute to determine whether a defendant is a non-violent offender and that those judges are competent to make that determination based upon the nature of the defendant’s underlying conviction, other factors brought before the judge in the record of the ease, and information submitted to the judge by the DOC and the Parole Board concerning the inmate’s behavior while incarcerated.”

899 So.2d at 974 (emphasis added).

Mack was convicted of one count of unlawful distribution of a controlled substance and one count of first-degree escape; both of these offenses are Class B felonies. See §§ 13A-10-31 and 13A-12-211, Ala.Code 1975. Pursuant to § 13A-5-9, as it existed at the time of these convictions, the trial court was required to sentence Mack to life imprisonment, based on the fact that he had three or more prior felony convictions. However, as Kirby notes, Mack falls within the category of inmates eligible to file a motion for reconsideration, requesting that the trial court resentence him under the amended provisions of § 13A-5-9, Ala.Code 1975. Accordingly, the trial court mistakenly concluded that Mack was not eligible to file a motion for reconsideration of his 1999 and 2000 sentences for life imprisonment.

Based on the foregoing, this case is remanded for the trial court to enter a new order addressing the merits of Mack’s request that he be resentenced for the aforementioned Class B felonies pursuant to § 13A-5-9(c)(2) as amended, effective May 25, 2000. 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 28 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, p.j„ and COBB, BASCHAB, and SHAW, JJ., concur.


text:
    Charles Erastis PIGG v. STATE of Alabama.
    CR-04-0436.
    Court of Criminal Appeals of Alabama.
    June 24, 2005.

      Larry W. Madison, Hartselle, for appellant.
    Troy King, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Charles Erastis Pigg, was convicted of one count of first-degree robbery, a violation of § 13A-8-41, Ala.Code 1975. He was sentenced as an habitual offender to serve a term of life imprisonment without the possibility of parole. Additionally, the court ordered Pigg to pay restitution in the amount of $2497, less any moneys recovered immediately following the crime. This appeal followed.

The evidence tended to establish that on February 4, 2002, a white male entered a bank on the “Beltline” Highway in Decatur. He placed a handwritten note on the teller’s counter demanding money. According to the teller, the note stated: “Hand me the money or I will kill myself and everyone here.” The teller proceeded to hand over a large sum of money, and the man left the bank.

Bank personnel notified the police of the robbery. Upon arrival, the police began a search of the area. They discovered a trail of currency leading from the bank to the Knight’s Inn, a motel across the street from the bank. They also found a pair of sunglasses and a baseball cap like the one witnesses had described the robber wearing. Further investigation revealed that Pigg, who matched the general description of the bank robber, was registered at the motel—using the name “Charlie McCroy.” Pigg had been registered at the hotel for approximately 2 months under the name of “Charlie McCroy,” paying weekly for his lodging. He had gotten two weeks behind in his payments; however, Pigg paid his entire bill in the amount of $385.06 in cash on February 4, 2002—the day of the robbery.

During a search of Pigg’s motel room, evidence technicians found a piece of paper under the telephone, folded into a small square. The piece of paper read “I’m ready to kill all, even myself. No die packs or S/alarm. If you’re ready to gamble, obviously so am I.” The hotel room was dusted for fingerprints and the outside garbage was searched for other relevant evidence. Investigators took the evidence that was found to the police station for proper chain-of-custody processing and obtained a warrant for the arrest of Charles Erastis Pigg, alias Charles McCroy. A National Crime Information Center alert was entered and Pigg was eventually taken into custody in Maywood, Missouri; he was extradited to Alabama for prosecution.

I.

On appeal, Pigg argues that the State’s evidence was insufficient to convict him of first-degree robbery. Specifically he contends that, in order to sustain his conviction for first-degree robbery under § 13A-8-41, Ala.Code 1975, the State was required to prove that he either: (1) used a deadly weapon to carry out the robbery; or (2) represented in some way that he was armed with a deadly weapon when he committed the robbery.

We note that the record before us contains no motion for judgment of acquittal, nor does it contain a motion for a new trial alleging that the verdict was contrary to the weight or sufficiency of the evidence. “Review on appeal is limited to review of questions properly and timely raised at trial.” Newsome v. State, 570 So.2d 703, 716 (Ala.Crim.App.1989).

Even if Pigg had properly preserved this issue for appellate review, his argument is without merit. In Herndon v. State, 563 So.2d 1065, 1068 (Ala.1990), recognizing that an unloaded gun is a “deadly weapon” for purposes of § 13A-8-41, the Alabama Supreme Court stated that “§ 13A-8-41(b) relates to those factual situations where any person present reasonably believes that the robber is using a deadly weapon or dangerous instrument, not whether the robber is, in fact, ‘armed with a deadly weapon.’” “In a prosecution for first-degree robbery, the robbery victim does not actually have to see a weapon to establish the element of force; his or her reasonable belief that the robber is armed is sufficient.” Rice v. State, 620 So.2d 140, 141 (Ala.Crim.App.1993) (quoted with approval in Stallings v. State, 793 So.2d 867, 868 (Ala.Crim.App.2000), and Porter v. State, 666 So.2d 106, 108 (Ala.Crim.App.1995)). See also § 13A-8-41(b), Ala.Code 1975. Based on the evidence set out above, the State produced sufficient evidence from which the jury could, by fair inference, find beyond a reasonable doubt that when the bank teller read the note containing the word “kill,” she could have reasonably believed that Pigg. had the necessary weapon to carry out his threats. Ample evidence was presented to support Pigg’s conviction for first-degree robbery. Thus, no basis for reversal exists.

II.

Pigg also argues that his sentence of life imprisonment without the possibility of parole is illegal. Specifically, he contends that the State failed to show that his two prior convictions for bank robbery would have been Class A felonies had they been committed in Alabama. Thus, he claims, his sentence is thereby taken outside of the mandatory sentencing aspects of the Habitual Felony Offender Act (“the HFOA”), specifically § 13A-5-9(c)(3), Ala. Code 1975.

As long as there is a state counterpart for a federal crime, the federal offense may be used for purposes of the HFOA. See Carter v. State, 420 So.2d 292 (Ala.Crim.App.1982). “All prior felony convictions may be considered in connection with the Habitual Felony Offender Act, regardless of what their origin may be. Watson v. State, 392 So.2d 1274 (Ala.Crim.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981).” Long v. State, 446 So.2d 658, 660 (Ala.Crim.App.1983).

At trial, evidence of 15 prior offenses was introduced; including two prior federal felony convictions for bank robbery, in violation of 18 U.S.C. § 2113(a), in the State of South Carolina. Additionally, the State’s motion to sentence Pigg as a habitual felony offender contained a list of approximately 13 other felony convictions, together with certified copies of all of Pigg’s convictions. The indictment charging Pigg with bank robbery provided, in pertinent part, as follows:

“On or about April 26, 1991, in the District of South Carolina, the defendant, [Pigg], by force, violence and intimidation did take from the person or presence of another money belonging to and in the care, custody, control, management and possession of the Republic National Bank, Columbia, South Carolina, a bank whose deposits were then insured by the Federal Deposit Insurance Corporation;
“All in violation of Title 18, United States Code, Section 2113(a).”

(C. 47); and

“On or about April 19, 1991, in the District of South Carolina, the defendant, [Pigg], by force, violence and intimidation did take from the person or presence of another money belonging to and in the care, custody, control, management and possession of the South Carolina National Bank, Columbia, South Carolina, a bank whose deposits were then insured by the Federal Deposit Insurance Corporation;
“All in violation of Title 18, United States Code, Section 2113(a).”

(C. 48.)

Although both the trial court and the prosecutor appeared to be under the impression that the bank-robbery convictions constituted Class A felonies under Alabama law, the language set out in the indictments indicates that Pigg was not charged with the commission of Class A felonies under Alabama law. First-degree robbery, a Class A felony, is defined in § 13A-8-41, Ala.Code 1975, which provides:

“(a) A person commits the crime of robbery in the first degree if he violates Section 13A-8-43 and he:
“(1) Is armed with a deadly weapon or dangerous instrument; or
(2) Causes serious physical injury to another.”

Section 13A-8-43, Ala.Code 1975, provides, in pertinent part:

“(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
“(b) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”

As seen above, neither of the federal bank-robbery indictments charged that during the commission of the two bank robberies either that Pigg was armed with a deadly weapon or dangerous instrument, or that Pigg caused serious physical injury to another. Thus, these convictions did not constitute Class A felonies in Alabama. Instead, under Alabama law, the indictments charged Pigg with third-degree robbery, a Class C felony. Accordingly, the trial court erroneously concluded that it had no choice but to sentence Pigg to life imprisonment without the possibility of parole. Therefore, because none of Pigg’s prior convictions were for Class A felonies, the trial court had the discretion to sentence Pigg to either life imprisonment or to life imprisonment without the possibility of parole. See § 13A-5-9(c)(3), AIa.Code 1975. Thus, this case must be remanded for the trial court to resentence Pigg.

For the reasons stated above, this case is remanded for the trial court to resen-tence Pigg. Our remand should not be interpreted to prohibit the trial court from again sentencing Pigg to life imprisonment without the possibility of parole, if it determines that such a sentence is warranted. The trial court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days after the release of this opinion. The return to remand shall include the trial court’s new sentencing order as well as a transcript of the sentencing hearing.

REMANDED WITH DIRECTIONS.

McMILLAN, PH., and COBB and SHAW, JJ., concur.

BASCHAB, J., concurs in the result.

      . None of these convictions were for Class A felonies. See § 13A-5-9(c)(3), Ala.Code 1975.


author: McMILLAN, Presiding Judge.

text:
    Bruce Dewayne CASEY v. STATE.
    CR-04-1518.
    Court of Criminal Appeals of Alabama.
    Sept. 30, 2005.

      Bruce Dewayne Casey, pro se.
    Troy King, atty. gen., and James B. Prude, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

Bruce Dewayne Casey appeals from the summary dismissal of his Rule 32, Ala. R.Crim. P., postconviction petition attacking his 1983 guilty-plea conviction for attempted robbery in the first degree and the resulting sentence of life imprisonment, as a habitual offender.

Casey was originally indicted for robbery in the first degree, and on February 28, 1983, he pleaded guilty to attempted robbery in the first degree. He claims that the trial court had no jurisdiction to accept the plea because, he argues, the offense he was charged with and to which he pleaded guilty did not exist under Alabama law. In Petty v. State, 414 So.2d 182, 183 (Ala.Crim.App.1982), this Court said:

“Because the definition of robbery has been enlarged and expanded by the new criminal code, ‘the former offense of assault with intent to rob has been merged into the present offense of robbery.’ [Marvin v. State, 407 So.2d 576, 579 (Ala.Crim.App.1981).] For this same reason the former crime of attempted robbery now constitutes robbery. Section 13A-8^á3(a) adds a definition that extends robbery to include conduct which occurs in an attempt to commit a theft or in flight after the attempt or commission. Section 13A-8-40(b).”

The State concedes that because Casey pleaded guilty to an offense that does not exist, his conviction is void and should be set aside. In Ex parte Wesley, 481 So.2d 1162, 1163 (Ala.1985), the Alabama Supreme Court held that the State may rein-dict an appellant for the appropriate offense of robbery; in Ex parte Wesley, the appellant had previously been charged with robbery in the first degree, but that charge had been amended pursuant to a guilty-plea agreement to charge the nonexistent offense of attempted robbery. Thus, while the first indictment was improper and void, the State could properly charge an offense established by the evidence.

The judgment of the circuit court dismissing Casey’s Rule 32 petition is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.


text:
    STATE v. Carlos B. HUMPHRIES.
    CR-04-0371.
    Court of Criminal Appeals of Alabama.
    Sept. 30, 2005.

      Troy King, atty. gen., and James B. Prude, asst. atty. gen., for appellant.
    J. Clay Benson, Jr., Montgomery, for appellee.
   McMILLAN, Presiding Judge.

The State appeals from the trial court’s dismissal of the charge of theft of property in the first degree, a violation of § 13A-8-3, Ala.Code 1975, on grounds that the ap-pellee, Carlos B. Humphries, was entrapped into committing the crime.

The record indicates that Hum-phries had originally agreed to enter a guilty plea to the charge. During the proceedings, however, the trial court refused to accept the plea because Hum-phries denied stealing the vehicle. Hum-phries informed the court that he saw a vehicle that had been left in the road with the ignition running. He stated that he entered the car to move it out of the roadway, and that he had been in it only a few seconds when the ignition shut down and he was arrested by police officers. The trial court then set the case for an evidentiary hearing, after which the court apparently determined that, as a matter of law, Humphries was entrapped into committing the illegal activity.

“ ‘ “Entrapment occurs when state officers or persons under their control incite, induce, lure, or instígate a person into committing a criminal offense, which that person would not have otherwise committed, and had no intention of committing.” ’ Wright v. State, 494 So.2d 936, 938 (Ala.Cr.App.1986) (quoting Geckles v. State, 440 So.2d 1189, 1191 (Ala.Cr.App.1983)). ‘When a defendant raises an entrapment defense, he must initially come forward with evidence that the governmental conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it.’ Lambeth [v. State], 562 So.2d [575,] 578 [(Ala.1990) ]; See Pierce v. United, States, 414 F.2d 163, 168 (5th Cir.), cert. denied 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425 (1969). ‘Once the defendant has carried this burden, the prosecution must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime charged.’ Lambeth, 562 So.2d at 578; See United States v. Gomez-Rojas, 507 F.2d 1213 (5th Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975).
“ ‘ “Such defense is not available, however, where the officer or other person acted in good faith for the purpose of discovering or detecting a crime and merely furnished the opportunity for the commission thereof by the one who had the criminal intent.” ’ Wright v. State, 494 So.2d 936, 939 (Ala.Cr.App.1986) (quoting Jackson v. State, 384 So.2d 134, 139 (Ala.Cr.App.1979)).”

Harris v. State, 794 So.2d 1214, 1218 (Ala.Crim.App.2000).

After careful examination of the record, we are convinced that the evidence of the State supports a finding that Hum-phries was not entrapped into illegal activity as a matter of law. We have reviewed the transcripts of both hearings, including the initial guilty-plea hearing and the evi-dentiary hearing, and we are convinced that it would serve no purpose to re-create them here.

Because it is the law of this State that whether a defendant was “entrapped” is a question for the jury unless the evidence is so clear and convincing that it can be passed on by the trial court as a matter of law, and because there is conflicting evidence in this case, we are of the opinion that the trial court’s judgment must be reversed and the entrapment issue left for the jury. Clay v. State, 687 So.2d 1245 (Ala.Crim.App.1996); Tyson v. State, 361 So.2d 1182 (Ala.Crim.App.1978).

REVERSED AND REMANDED.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.