author: BOLIN, Justice.

text:
    Ex parte David SHARPLEY. (In re David Sharpley v. State of Alabama).
    1031937.
    Supreme Court of Alabama.
    June 24, 2005.

      J. Timothy Kyle of Russell, Straub & Kyle, Decatur, for petitioner.
    Troy King, atty. gen., and Andy S. Poole, asst. atty. gen., for respondent.
   BOLIN, Justice.

David Sharpley pleaded guilty in the Morgan Circuit Court to first-degree robbery. In sentencing Sharpley, the trial court applied an enhancement statute, § 13A-5-6(a)(4), Ala.Code 1975, which mandates a minimum sentence of 20 years’ imprisonment when the defendant has used or has attempted to use a firearm or a deadly weapon in the commission of a class A felony, and sentenced Sharpley to 30 years in prison. The Alabama Court of Criminal Appeals, in an unpublished memorandum, concluded that Sharpley’s argument that the trial court had improperly applied the firearm-enhancement statute in determining his sentence was not properly before that court, and it dismissed his appeal. Sharpley v. State (No. CR-03-0696, August 20, 2004), 920 So.2d 610 (Ala.Crim.App.2004) (table). We granted Sharpley’s petition for a writ of certiorari to address his claim that he had reserved his right to appeal the issue whether the application of the firearm-enhancement statute to increase his sentence was proper. We reverse and remand.

Facts and Procedural History

On April 21, 2003, Sharpley pleaded guilty to first-degree robbery; the State made no sentencing recommendation. At the time he entered his plea, Sharpley executed and presented the trial court with the following forms: an “Explanation of Rights and Plea of Guilty”; a “Notice and Waiver of Indigency Status”; and a “Notice and Waiver of Right to Appeal and Right to Seek PosNConviction Relief.” In a colloquy with the trial court, Sharpley explained that he understood that he had been charged with first-degree robbery; that he understood his rights as set forth in the forms; that he understood that he was waiving those rights by pleading guilty; and that he had consulted with his attorney before executing the forms. The trial court explained the range of punishment to Sharpley, including the possible sentence if the firearm enhancement was applicable. Counsel for Sharpley responded by stating that Sharpley did not concede that the firearm-enhancement statute was applicable to him. Sharpley requested a sentencing hearing on the applicability of the firearm-enhancement statute, and the trial court scheduled a sentencing hearing.

Following the sentencing hearing, the trial court, on August 14, 2003, determined that the firearm-enhancement statute was applicable to Sharpley’s case and sentenced Sharpley in open court to 30 years in prison. The trial court specifically noted during the sentencing that at the time Sharpley entered his guilty plea, he did not reserve any issue for appeal. Neither Sharpley nor his counsel objected to the trial court’s determination that no issue had been reserved for appeal.

On September 2, 2003, Sharpley, proceeding pro se, filed a notice of appeal in the trial court. On September 15, 2003, Sharpley, again proceeding pro se, moved to withdraw his guilty plea. Sharpley’s motion to withdraw his guilty plea was denied by operation of law 60 days after sentencing pursuant to Rule 24.4, Ala. R.Crim. P. Sharpley appealed to the Court of Criminal Appeals.

Sharpley argued on appeal to the Court of Criminal Appeals that the trial court had erroneously applied the firearm-enhancement statute; that the trial court had erroneously accepted his guilty plea because an allegedly improper “Explanation of Rights and Plea of Guilty” form was used, and it was not signed by the trial court; and that he had not knowingly, voluntarily, and intelligently entered his guilty plea. The Court of Criminal Appeals noted that Sharpley signed a waiver of his right to appeal and that he did not challenge in his postjudgment motion the voluntariness of his guilty plea or of his waiver. Citing Watson v. State, 808 So.2d 77 (Ala.Crim.App.2001), the Court of Criminal Appeals, in an unpublished memorandum, concluded that Sharpley’s arguments were not properly before the court.

On September 23, 2004, Sharpley petitioned this Court for a writ of certiorari. Sharpley contends in his petition, among other things, that he properly reserved for appeal the issue of the applicability of the firearm-enhancement statute. Specifically, Sharpley stated that his “Notice and Waiver of Right to Appeal and Right to Seek Post-Conviction Relief’ form was modified by strikeovers so that it did not waive his right to challenge the sentence either directly or collaterally. He further argues that he expressly reserved the right to challenge the applicability of the sentence enhancement.

Issue

This Court granted Sharpley’s petition for a writ of certiorari to decide the sole issue whether Sharpley had properly reserved the right to appeal the application of the firearm-enhancement statute in determining his sentence.

Analysis

Sharpley first contends that he modified the “Notice and Waiver of Right to Appeal and Right to Seek PosWConviction Relief’ form with strikeovers so that it did not waive his right to challenge the sentence either directly or collaterally. A review of the record, however, indicates otherwise. The “Notice and Waiver of Right to Appeal and Right to Seek Post-Conviction Relief’ form contains the following:

“Having read and understood the foregoing, I agree to:
“1) waive all my rights to appeal this case directly to an appellate court; “2) waive all my rights to challenge the conviction or sentence indirectly or collaterally by filing a separate action; and
“3) dismiss, with prejudice, any pending proceedings attacking this conviction or sentence.”

Each waiver provision on the form is preceded by a box in which the defendant enters his or her initials indicating that he or she has agreed to waive the rights set forth in that provision. The record indicates that Sharpley entered his initials in the box preceding each provision. The word “sentence” in the second provision, relating to the waiver of the “rights to challenge the conviction or sentence indirectly or collaterally,” has been struck through with a line. However, provision 1, waiving the right to appeal the case directly to an appellate court, has not been modified by a strikeover as Sharpley contends in his petition for a writ of certiorari. Thus, he has not modified the “Notice and Waiver of Right to Appeal and Right to Seek Post-Conviction Relief’ form so as not to waive his right to challenge the sentence directly on appeal to the Court of Criminal Appeals.

Sharpley also contends that he had expressly reserved his right to appeal the application of the firearm-enhancement statute to his sentence.

“ ‘Pursuant to Rule 14.4(a)(l)(viii)[, Ala. R.Crim. P.,] and Rule 26.9(b)[, Ala. R.Crim. P.], a defendant may appeal a guilty-plea conviction if: (1) the defendant “expressly reserved the right to appeal with respect to a particular issue or issues” before entry of the plea, Rule 14.4(a)(l)(viii), or (2) the defendant “has timely filed a motion to withdraw the plea of guilty and the motion has been denied,” Rule 26.9(b)(4)(ii).’ ”

Fuqua v. State, 912 So.2d 290, 291 (Ala.Crim.App.2005) (quoting Ingram v. State, 882 So.2d 374, 376 (Ala.Crim.App.2003)).

We note that the following colloquy occurred during Sharpley’s guilty-plea hearing:

“[The Court]: The range of punishment for a Class A felony ordinarily is not less than 10 years and not more than 99 years in prison and could include a fine not to exceed $20,000. By statute there is an enhanced punishment for use of a firearm or deadly weapon [in the commission of the felony]. If that was used or attempted to be used in the commission of a felony, the statute requires for commission of a Class A felony a term of imprisonment for not less than 20 years. If that enhancement is applicable, the range begins with 20 years. Do you understand?
“[Sharpley]: Yes, ma’am.
“[The Court]: Again is to 99 years in the penitentiary. Any questions about that?
“[Sharpley]: No, ma’am.
“[Sharpley’s Counsel]: If I may just for the record, that is the part of the charge that my client does not concede, is the firearm enhancement would be applicable to him under the circumstances in this case.
“[The Court]: Okay
“[Sharpley’s Counsel]: Your Honor, we will request a sentencing hearing on the issue of the applicability of firearm enhancement as to this defendant.”

At the sentencing hearing the trial court accepted testimony on the issue of the applicability of the firearm-enhancement statute and determined that the statute was applicable to Sharpley’s case. After sentencing Sharpley, the trial court specifically noted that Sharpley had failed to reserve any issue for appeal before he entered his guilty plea. Neither Sharpley nor his counsel objected to the trial court’s determination that Sharpley had failed to reserve for appeal the issue of the applicability to his case of the firearm-enhancement statute.

Sharpley failed to expressly reserve the right to appeal the issue of the applicability of the firearm-enhancement statute before entering his guilty plea. See Rule 14.4(a)(1)(viii), Ala. R.Crim. P. While Sharpley refused to concede the applicability of the firearm-enhancement statute, thereby placing the applicability of the enhancement provision at issue before the trial court, he failed to reserve the issue for appeal as required by Rule 14.4(a)(l)(viii).

However, as mentioned above, Sharpley filed a timely motion to withdraw the guilty plea, which was ultimately denied by operation of law. Sharpley stated no grounds in support of his motion to withdraw the guilty plea; however, because Sharpley filed a timely motion to withdraw his guilty plea, he properly invoked his right to appeal pursuant to Rule 26.9(b)(4)(ii), Ala. R.Crim. P. Ingram, supra.

Accordingly, the judgment of the Court of Criminal Appeals is reversed, and the case is remanded to the Court of Criminal Appeals for consideration of Sharpley’s appeal from the denial of his postjudgment motion.

REVERSED AND REMANDED.

NABERS, C.J., and SEE, LYONS, HARWOOD, WOODALL, STUART, SMITH, and PARKER, JJ., concur.

      . This case was originally assigned to another Justice; it was reassigned to Justice Bolin on January 17, 2005.

      . The trial court was not divested of jurisdiction to rule on Sharpley's motion to withdraw his guilty plea by the earlier filing of the notice of appeal. See Ex parte Walker, 652 So.2d 198 (Ala.1994). Additionally, we note that the 30-day period in which to file the postjudgment motion ended on Saturday, September 13, 2003. Therefore, the post-judgment motion, which was filed on Monday September 15, 2003, was timely. See Rule 1.3, Ala. R.Crim. P.


source: Caselaw Access Project

author: SEE, Justice.

license: Public Domain

text:
    ZANATY REALTY, INC. v. Amanda WILLIAMS.
    1040625.
    Supreme Court of Alabama.
    Nov. 18, 2005.
    Rehearing Denied Feb. 10, 2006.

      Kenneth Lee Cleveland of Cleveland & Cleveland, P.C., Birmingham, for appellant.
    Michael D. Ermert and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for appellee.
   SEE, Justice.

Amanda Williams (“Williams”) approached Cindy Berry, a real-estate agent with Travis Realty, Inc., seeking assistance in buying her first house. Berry told Williams and her husband, Bert Williams, that as a low-income family they qualified for a program sponsored by AmeriDream, Inc. That program provides financial assistance to low-income families to help them with the down payment on a house. Williams eventually made an offer on a house owned by Mary France Shadrix, who had listed the house with Berry. Because Berry had a relationship with Sha-drix, Berry and Williams signed a limited consensual dual-agency agreement, which meant that Berry would be working as an agent for both Williams and Shadrix. Nonetheless, Berry had an obligation to explain the necessary procedures for purchasing a house to Williams and to answer Williams’s questions truthfully.

Williams applied for a mortgage from Wells Fargo Home Mortgage, Inc. Wells Fargo was required to appraise the property to determine its market value in order to secure mortgage insurance from the United States Department of Housing and Urban Development (“HUD”). Wells Fargo hired Zanaty Realty, Inc., to appraise the property that Williams was attempting to buy.

One of Zanaty’s employees, Mark Stalker, performed the appraisal. Stalker has been employed by Zanaty for 14 years; he has been a home appraiser for 12 of those 14 years. Stalker is not a licensed home inspector, nor is he qualified to be a home inspector. Stalker appraised Williams’s property following the procedures required under the HUD mortgage-insurance program. Stalker used a standard HUD form to conduct his appraisal. The appraisal form shows Williams as the “Borrower or Owner.” It also identifies Wells Fargo as the “Lender or Client.”

The appraisal contains the following disclosure:

“I am not a licensed building contractor or professional building inspector. I am not qualified to survey or analyze physical items that are not readily visible. If any parties in this transaction have any questions or concerns regarding any mechanical or structural physical problems, condition, infestation, contamination, or other issues regarding the subject property, an expert in that field of specialty should be consulted.”

Moreover, with respect to the intended use of the appraisal, the appraisal contains the following disclaimer:

“PURPOSE, INTENDED USE, AND INTENDED USER OF THE APPRAISAL:
“The purpose of the appraisal is to estimate the market value of the subject property, as defined in this report, on behalf of the above referenced client [Wells Fargo] as the intended user of this report. The intended use of the appraisal is to assist the client, as intended user of this report, in evaluating the subject property for lending purposes. The use of this appraisal by anyone other than the stated intended user, or for any other use than the stated intended use, is prohibited.”

(Capitalization in original.) Stalker testified that an appraisal conducted pursuant to HUD procedures and recorded on the standard HUD form was not a substitute for an inspection by a qualified home inspector. HUD provides a handbook for appraisers employed by lenders to determine the market value of a property for mortgage-insurance purposes. The handbook states:

“Appraisals performed for HUD/FHA are not intended to protect the buyer: they protect HUD. Many homebuyers mistakenly believe that a HUD appraisal and subsequent inspection is a guarantee that the property is free from defects when, in fact, the appraisal only establishes the value of the property for mortgage insurance purposes.”

The appraisal results on the standard HUD form are not given to buyers. Buyers are provided with a HUD form that contains a summary of the appraisal and states the following:

“Important NOTICE TO THE HOME-BUYER Read Carefully
“As part of our job insuring the mortgage for the lender, the FHA requires the lender to conduct an appraisal to:
“• estimate the value of your potential new home
“• make sure it meets minimal FHA standards
“• ensure that it is marketable
“Appraisals are different from home inspections.
“Home inspections give more detailed information about your potential new home.”

(Capitalization and emphasis in original.)

Williams testified that before closing on the house she purchased, she received a form from HUD entitled, “For Your Protection Get a Home Inspection.” This form stated:

“As part of our job insuring the loan, we require that the lender conduct an FHA appraisal. An appraisal is different from a home inspection. Appraisals are for lenders; home inspections are for buyers.”

Williams telephoned Berry when she received the form from HUD and asked Berry whether she needed to get a home inspection. Berry incorrectly informed Williams that a home inspection would be provided as part of the AmeriDream program. Williams did not conduct a preclos-ing inspection of the house; AmeriDream did not conduct or provide for a home inspection.

Williams never read or saw a copy of Stalker’s appraisal or the appraisal summary. At the closing, Williams did not read any of the documents, but she signed the documents in the places Berry instructed her to sign.

Immediately after Williams and her husband moved into the house, they noticed a plumbing leak. Upon investigating the leak, they discovered other defects and problems with the house. The Williamses did not notice the problems with the house before they purchased it. Three months after moving into the house, the Williamses went into the attic, where they discovered damage caused by a fire that had occurred before they purchased the home.

Williams sued Travis Realty, Berry, Shadrix, Wells Fargo, and Zanaty. Wells Fargo was dismissed from the case before trial. Williams’s complaint alleges that Shadrix concealed defects in the house; that Travis Realty had improperly acted as both Shadrix’s and Williams’s agent under a limited consensual dual-agency agreement; that Berry, as an employee of Travis Realty, committed wrongful acts of fraud, fraudulent concealment, and negligence in connection with the sale of the house; and that Zanaty negligently appraised the property. During the trial, Travis Realty and Berry settled with Williams and the trial court dismissed them with prejudice. Shadrix did not appear, so the trial court entered a default judgment for Williams against Shadrix.

Williams’s claim of negligence against Zanaty was tried before a jury. The jury returned a verdict in favor of Williams. The trial court entered a judgment against Zanaty in the amount of $104,400. Zanaty renewed its motion for a judgment as a matter of law made at the close of Williams’s evidence and moved for a new trial. The trial court denied both motions. Zanaty appeals.

Standard of Review

The standard of review applicable to a ruling on a motion for a judgment as a matter of law is identical to the standard used by the trial court in granting or denying the motion. Floyd v. Broughton, 664 So.2d 897, 898 (Ala.1995); see King Motor Co. v. Wilson, 612 So.2d 1153 (Ala.1993); Ogle v. Long, 551 So.2d 914 (Ala.1989). A motion for a judgment as a matter of law tests the sufficiency of the evidence presented by the parties. Carter v. Henderson, 598 So.2d 1350, 1353 (Ala.1992). Thus, we review the trial court’s ruling viewing the evidence in the light most favorable to the nonxnovant and determine whether the party with the burden of proof produced sufficient evidence to create a conflict warranting a determination by a jury. Macon County Comm’n v. Sanders, 555 So.2d 1054, 1056 (Ala.1990); John R. Cowley & Bros. v. Brown, 569 So.2d 375 (Ala.1990).

A motion for a new trial tests the weight and preponderance of the evidence. King Motor Co., 612 So.2d at 1157. A jury verdict is entitled to a presumption of correctness, and this Court will not reverse the denial of a motion for a new trial unless the evidence, seen in the light most favorable to the nonmovant, shows that the jury verdict was plainly and palpably wrong. Christiansen v. Hall, 567 So.2d 1338, 1341 (Ala.1990).

Discussion

Zanaty argues that it was entitled to a judgment as a matter of law on Williams’s negligence claim because, it argues, Zanaty, as the appraiser employed by a mortgage company, Wells Fargo, for mortgage-insurance purposes, owed no duty to Williams, the buyer. We agree.

“It is axiomatic that to maintain a negligence claim, one must point to the existence of a duty on the part of the defendant.” Smith v. AmSouth Bank, Inc., 892 So.2d 905, 909 (Ala.2004) (citing Patrick v. Union State Bank, 681 So.2d 1364, 1367 (Ala.1996)); Morton v. Prescott, 564 So.2d 913, 915 (Ala.1990) (“It is settled that for one to maintain a negligence action the defendant must have been subject to a legal duty.”). Furthermore, “[i]t is a well-established rule of-law in this state that in order to prove a claim of negligence a plaintiff must establish that the defendant breached a duty owed by the defendant to the plaintiff and that the breach proximately caused injury or damage to the plaintiff.” Lowe's Home Ctrs., Inc. v. Laxson, 655 So.2d 943, 945-46 (Ala.1994).

In Fisher v. Comer Plantation, Inc., 772 So.2d 455, 462 (Ala.2000), this Court held that “real-estate appraisers are subject to liability for negligent or wanton misrepresentation.” However, the appraiser’s liability for negligence is limited to those parties to whom the real-estate appraiser owes a duty — that is, “ ‘specifically foreseen and limited groups of third parties for whose benefit and guidance the [appraiser] supplied the [appraisal] and who used it as the [appraiser] intended it to be used.’ ” Fisher, 772 So.2d at 462 (quoting Boykin v. Arthur Andersen & Co., 639 So.2d 504, 510 (Ala.1994)). Therefore, the Court held that “[the buyer] would have the burden of showing that ... the appraiser, foresaw, or should have foreseen, that his appraisal would -be relied upon by a limited class that included [the buyer].” 772 So.2d at 462 (citing Restatement (Second) of Torts § 552 (1977)). The seller of the property in Fisher was a real-estate firm. One of the individual owners of the real-estate firm paid for an appraisal. The buyer, however, used the real-estate appraisal as the foundation for his price negotiations and, after purchasing the property, discovered that the appraisal had vastly overstated the market value of the property. On these facts, we held that the real-estate appraiser owed no duty to the buyer. We concluded that “no evidence suggests [the appraiser] knew, or should have known that [the individual owner who paid for the appraisal] was going to distribute the appraisal report to prospective purchasers.” Fisher, 772 So.2d at 463.

Williams alleges that Zanaty was negligent in conducting its appraisal of her property. To support a claim of negligence, Williams must show that Zanaty owed her a duty. As this Court articulated in Fisher, the key factor in determining whether a real-estate appraiser owes a duty to a buyer of the appraised property is whether injury to the buyer was foreseeable by the appraiser. See Fisher, 772 So.2d 455; see also Taylor v. Smith, 892 So.2d 887, 892 (Ala.2004); Bush v. Alabama Power Co., 457 So.2d 350, 353 (Ala.1984) (“The ultimate test of a duty to use care is found in the foreseeability that harm may result if care is not exercised.”).

Viewing the facts in the light most favorable to Williams as the nonmovant, we conclude that the facts in this case do not support Williams’s contention that Zanaty owed her a duty. Williams contends that Zanaty knew or should have known that she would rely on the appraisal as an indication of the condition of the. house. However, the appraisal expressly discloses that Zanaty’s appraiser, Stalker, “is not a licensed building contractor or professional building inspector” and is “not qualified to survey or analyze physical items [in the house] that are not readily visible.” Zanaty could not foresee that Williams would rely on Stalker’s appraisal to ensure the condition of her house, because the appraisal expressly precludes the use of the appraisal for that purpose.

Moreover, because she was' not the intended user of the appraisal, Williams was not even given a copy of it. Wells Fargo hired Zanaty to conduct an appraisal of Williams’s house to ascertain its market value so that Wells Fargo could obtain mortgage insurance through HUD. The intended-use statement in the appraisal reads: “The purpose of the appraisal is to estimate the market value of the subject property, as defined in this report, on behalf of the referenced client as the intended user of this report.” “Wells Fargo Home Mortgage” is listed as the “Lender or Client.” The appraisal contains an express prohibition, stating that “[t]he use of this appraisal by anyone other than the stated intended user, or for any other use than the stated intended use, is prohibited.” Williams’s use of the appraisal as a substitute for a home-inspection report is thus expressly precluded under the terms of the appraisal itself — Williams is not within the limited group of third parties for whose benefit and guidance Zanaty supplied the appraisal and who used it as Zanaty intended it to be used. Fisher, 772 So.2d at 462. Therefore, our holding in Fisher compels us to find that Zanaty owed Williams no duty.

Even if Williams could somehow prove that her reliance on the appraisal was foreseeable, any duty Zanaty might have owed her was nullified by the disclaimer language in the appraisal:

“The purpose of the appraisal is to estimate the market value of the subject property ... on behalf of [Wells Fargo] as the intended user of this report. The intended use of this appraisal is to assist [Wells Fargo] ... in evaluating the subject property for lending purposes.”

The appraisal also states the following with regard to structural elements of the house:

“I am not a licensed building contractor or professional building inspector. I am not qualified to survey or analyze physical items that are not readily visible. If any parties in this transaction have any questions or concerns regarding any mechanical or structural physical problems, condition, infestation, contamination, or other issues regarding the subject property, an expert in that field of specialty should be consulted.”

In Brushwitz v. Ezell, 757 So.2d 423 (Ala.2000), this Court found that a similar disclaimer eliminated any duty between Ezell, the appraiser, and the Brushwitzes, the buyers. The mortgage lender hired Ezell to appraise the Brushwitzes’ house. The appraisal in Brushwitz contained the following disclaimer:

“ You should note that:
“ T) The appraisal was performed for the lender’s use to determine the adequacy of the property as security for the loan and not for your use to determine value,
“ ‘2) the appraisal does not guarantee nor imply that the house is free of defects, and
“ ‘3) you need to take whatever steps you feel are necessary to assure yourself that this house is acceptable to you before closing the purchase of the home.’ ”

757 So.2d at 426. Under the facts in Brushwitz, Ezell should have foreseen that the Brushwitzes would rely on the appraisal; however, we held that the disclaimer altered the relationship between Ezell and the Brushwitzes and eliminated any duty Ezell owed to the Brushwitzes. Our holding in Brushiuitz compels us to conclude in this case that, even if a duty running from Zanaty to Williams could somehow be inferred, the disclaimer in the appraisal terminated that duty.

Conclusion

Reviewing the evidence in the light most favorable to Williams, we conclude that Williams did not meet her burden to produce evidence sufficient to create a conflict warranting a jury determination as to whether Zanaty owed Williams a duty. Therefore, we hold that Zanaty was entitled to a judgment as a matter of law on Williams’s negligence claim. Because of that holding, we need not address Zanat/s argument that it is entitled to a new trial. We, therefore, reverse the trial court’s judgment and render a judgment in favor of Zanaty.

REVERSED AND JUDGMENT RENDERED.

NABERS, C.J., and STUART and BOLIN, JJ., concur.

HARWOOD, J., concurs in the result.

      . Amanda Williams is the only named plaintiff because only her name appears on the documents relating to the purchase of the house.

      . AmeriDream, Inc., is a nonprofit organization under § 501(c)(3) of the Internal Revenue Code, whose mission is "[t]o expand affordable housing opportunities for underserved groups and promote the value of home ownership as the foundation for building strong communities and individual prosperity.”

      . "(3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them.” Restatement (Second) of Torts § 552 (1977).

      . Similarly, Zanaty could not foresee that giving Williams a copy of the HUD form Zanaty was required to fill out summarizing the results of its appraisal would cause Williams to rely on the appraisal as a substitute for a home inspection. The HUD form is captioned: “Important NOTICE TO THE HOME-BUYER Read Carefully.” (Capitalization in original.) The form states that "[ajppraisals are different from home inspections " (emphasis in original) and informs the buyer that "[h]ome inspections give more detailed information about your potential new home.”


author: LYONS, Justice.

text:
    Steve COCHRAN v. June H. WARD, as executrix of the estate of Conrad J. Ward, deceased, and June H. Ward.
    1041361.
    Supreme Court of Alabama.
    Jan. 27, 2006.

      J. Robert Faulk of McDowell, Faulk & McDowell, L.L.C., Prattville, for appellant.
    G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for appellee.
   LYONS, Justice.

Steve Cochran appeals from the trial court’s denial of his postjudgment motion for a judgment as a matter of law (“JML”), a new trial, or, in the alternative, a motion to alter, amend, or vacate a judgment entered on a jury verdict in favor of June H. Ward and her husband Conrad J. Ward. We affirm.

I. Factual Background and Proceedings Below

In January 2003, the Wards entered into a contract with A-l Metals, Inc., for the installation of a metal roof on their house. Steve Cochran, a sales representative for A-l, negotiated the contract. During their initial meeting with Cochran, the Wards specifically inquired about the qualifications of the installers. Cochran, according to the Wards, told them that all installers of A-l metal roofs were factory-trained and fully qualified. The first crew from A-l, headed by Dan Irving, Sr., arrived at the Wards’ house on March 12, 2003, and left on March 16, 2003. The second crew, headed by Todd Johnson, arrived on April 11, 2003, and left on August 1, 2003. When the second crew left, the job was still uncompleted. During the installation process, the roof leaked at various locations of the house, causing damage to the house.

In August 2003, the Wards sued A-l and Cochran, seeking compensatory and punitive damages for negligence, wantonness, fraudulent misrepresentation, and suppression, relating to the installation of the metal roof. The trial court entered a partial summary judgment in favor of the Wards and against A-l on the Wards’ claim that the roof was negligently installed.

The case proceeded to trial on theories of fraudulent misrepresentation and suppression against both A-l and Cochran; a theory of wantonness against A-l; and for a determination of damages, if any, for the Wards based on A-l’s negligent installation of the roof. At trial, Cochran moved for a JML at the close of the Wards’ case and again at the close of all the evidence, arguing that the evidence relating to the alleged fraudulent misrepresentation was insufficient to support a verdict against him. The trial court denied both motions. The jury returned a general verdict against both A-l and Cochran and assessed the Wards’ damages at $350,000. The trial court entered a judgment against both A-l and Cochran. Cochran filed a postjudgment motion for a JML, a new trial, or, in the alternative, a motion to alter, amend, or vacate the judgment, pursuant to Rule 59, Ala. R. Civ. P., reasserting his argument that the evidence of fraudulent misrepresentation was insufficient to support a verdict against him. Following a hearing, the trial court denied this motion. Cochran appealed.

II. Sufficiency of Evidence of Misrepresentation

Cochran first contends that he is entitled to a JML because, he says, the Wards failed to present sufficient evidence indicating that A-l installer Todd Johnson was not factory-trained or fully qualified to install the metal-roofing system on their house. As noted previously, Cochran had represented to the Wards that A-l installers were factory-trained and fully qualified to install the metal-roofing system.

When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in granting or denying the motion. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate issue is whether the nonmovant has presented sufficient evidence to allow the case or issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). In an action filed after June 11, 1987, the nonmovant must present substantial evidence to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; and West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id.

In order to withstand a motion for a JML against their claim of fraudulent misrepresentation, the Wards were required to present substantial evidence indicating (1) that Cochran misrepresented to them that Todd Johnson was factory-trained and fully qualified to install the metal-roofing system on their house, (2) that Cochran did so willfully to deceive, recklessly without knowledge, or mistakenly, and (3) that the Wards suffered damage as a proximate consequence of their reliance on his misrepresentation. Ex parte Alfa Mut. Fire Ins. Co., 742 So.2d 1237 (Ala.1999). In the alternative, the Wards may show that Cochran’s failure to disclose, or suppression of, a material fact, rather than an affirmative misrepresentation, induced the reliance and proximately caused their damage. Id.

The evidence at trial relating to whether Todd Johnson was factory-trained or fully qualified to install the metal roof was conflicting. Classic Products, Inc., manufactured the metal shingles used on the Wards’ house; it also provided its suppliers, including A-l, with hands-on training in installing the shingles. At trial, the Wards presented the deposition testimony of Todd Eugene Miller, the president of Classic Products, as well as Jeffery Mescher, the installation-training technician for Classic Products.

The jury heard the following deposition testimony of Miller:

“Q. Okay. Has Classic [Products] ever, at any time, provided any training to Dan Irving, Sr. ?
“A. Yes. Dan Irving was present for a training session we ran in New Orleans once upon a time.
“Q. Okay. Has Classic [Products] ever provided any training to Todd Johnson?
“A. Not to our knowledge.”

(Emphasis added.)

The jury heard also heard the following deposition testimony of Mescher:

“Q. How many people have you trained on the installation of Classic’s products, any judgment?
“A. Probably anywhere from 250 to 350 I would suspect.
“Q. And is that a hands-on type of training?
“A. Yes, it is.
“Q. Where the product is actually installed?
“A. Correct.
“Q. How many different states — or what different states have you given training in?
“A. All of them except for four in the United — in the 50.
“Q. So you’ve given training in 46 states?
“A. Yes, sir.
“Q. Now, when customers have complaints or questions about a Classic [Products] roofing system, do you sometimes go inspect that out in the field?
“A. I have in the past, yes.
“Q. Now, have you been to the home of Conrad Ward and June Ward in Elmore County?
“A. Yes.
“Q. I’m sorry. What is the date you were at the Wards’ home?
“A. Right. It was May 9, 2003.
“Q. And did you find any problems in the installation?
“A. Well, there were some things that — that were brought to my attention as far as being considered not necessarily good roofing practice.
“Q. Now, if A-l Metals’ installers had received any training from Classic [Products], would you have been the person responsible for providing that training?
“A. Yes, I was.
“Q. All right. Now, did you ever provide any type of training to Dan Irving, Sr.?
“A. Sometime in the past, there was a training class held in New Orleans that Dan was present at.
“Q. Have you ever provided any training to Todd Johnson?
“A. I don’t recall his name in any of the [training sessions], no, sir.”

(Emphasis added.)

Cochran, on the other hand, argues that Todd Johnson was factory-trained and fully qualified to install the roof. Herman Cline, the president of A-l when the metal roof was installed on the Wards’ house, testified that Todd Johnson was trained by Jeffery Mescher of Classic Products over a two-day period in Odenville, Alabama. Cline testified as follows:

“Q. You’re sure [Todd Johnson] was there?
“A. Yes.
“Q. He is not mentioned in the report, is he?
“A. He is not mentioned. But there are several of them that was there.
“Q. Now, the report says that about twenty people showed up for first day and about half that many showed up the second day; is that right?
“A. That’s what it says, yes, sir.
“Q. Were you there both days?
“A. I was there, yes, sir.
“Q. Both days?
“A. Yeah.
“Q. Todd Johnson, was he one of the ones that came the first day but not the second day?
“A. As far as I remember, he was there both days.
“Q. You’re sure of that?
“A. I’m not sure, but I say he was there.
“Q. You cannot say under oath that Todd Johnson had ever previously installed the type of shingle he was putting on the Ward home; is that true?
“A. I couldn’t say that because I really don’t know....”

(Emphasis added.)

In essence, Cline could not state for certain that Todd Johnson was present for the entire two-day training session held by Classic Products, thereby casting doubt on whether Johnson was fully qualified to install the metal roof in question. Cline also could not state with any certainty that Todd Johnson had ever installed the type of metal roof in question. Cline further stated in his affidavit that he had gone to the Wards’ house on several different occasions to inspect the roof and that he did not “see any problems with the installation of the system.” Mescher, on the other hand, contradicted Cline’s testimony by providing extensive testimony regarding the faulty manner in which the roof had been installed. Finally, Michael Bazzell, a general contractor familiar with the metal-roofing system manufactured by Classic Products, inspected the roof and testified that the underlayment of the roof was so improperly installed that the roof could not be repaired unless it was first removed.

Viewing the evidence, as we must, in a light most favorable to the Wards as the nonmovants, Carter, 598 So.2d at 1353, this Court concludes that the Wards produced substantial evidence from which a jury could infer that Todd Johnson was not factory-trained or fully qualified to install the metal roof. The very fact that the roof was improperly installed creates a factual dispute regarding whether Todd Johnson was “fully qualified” to install it. Accordingly, the trial court did not err in submitting the case to the jury over Cochran’s objection that the Wards failed to present sufficient evidence that Todd Johnson, the installer for A-l, was not factory-trained or fully qualified to install the metal-roofing system. The trial court therefore did not err in denying Cochran’s motion for a JML.

III. Form of the Verdict

Cochran next contends that the trial court committed reversible error by presenting a verdict form that, he says, precluded the jury from assessing damages based on each separate cause of action. This Court must first determine whether Cochran properly preserved this issue for our review. The trial" court in this case presented the jury with three alternative verdict forms. The first verdict form allowed the jury to find in favor of the Wards and against A-l Metals and to assess damages. The second verdict form allowed the jury to find in favor of Cochran and against the Wards on the Wards’ fraud claims. The third verdict form, with which Cochran finds fault, allowed the jury to find in favor of the Wards and against both A-l and Cochran and to assess damages based on the Wards’ fraud claims. Cochran argues that the third verdict form also allowed the jury to assess damages against him based on the Wards’ separate claim against A-l alleging wantonness. The argument is without merit. The verdict form specifically states that the damages award is based on a finding of fraud, not wantonness:

“[W]e the jury find ... in favor of the [Wards] and against the defendants A-l Metals and [Cochran] and assess [the Wards] damages at_, that is if you find fraud, either innocent — fraud by misrepresentation or innocent misrepresentation on the part of [Cochran] because- [Cochran] is not charged with wantonness. Only A-l is charged with wantonness.”

After the trial court presented the jury with this verdict' form, the jury was excused and the following transpired:

“[THE COURT]: What says the defendant?
“[Counsel for Cochran]: Other than what I had just—
“[THE COURT]: You can make your record later.
“[Counsel for Cochran]: Yes, sir.”

Other than this scant reply, Cochran made no specific objection to the use of this third verdict form, nor did he state any grounds for any objection. See Rule 51, Ala. R. Civ. P. (in order to preserve error, a party must state the matter objected to and the grounds of the objection). “[I]f an objection to a verdict form is specific enough to indicate why the party is objecting, then the issue whether the verdict form was proper is preserved for review.” CP & B Enters., Inc. v. Mellert, 762 So.2d 356, 362 (Ala.2000). Cochran’s objection was not specific enough to indicate the basis for his objection; accordingly, we hold that Cochran failed to properly object to the use of verdict form. Id.

We further note that, during deliberations, the jury foreperson forwarded a note to the trial judge regarding the allocation of the damages award. The trial judge opened the note and read it to the attorneys. The note specifically inquired as to whether the jury should itemize the damages or assess one total amount. The trial judge stated to the attorneys that “[m]y answer to their question will be written this way. Just one total amount — nothing to itemize, period, and my initials.” (Emphasis added.) The trial judge then asked, “What says the defendant?” to which counsel for Cochran stated, “No objection.” Thereafter, the jury returned a verdict in favor of the Wards and against A-l and Cochran, and assessed damages at $350,000. The trial court entered a judgment based on the verdict. Based on the foregoing, we conclude that any argument concerning the use of the verdict form, to which Cochran failed to object, is not preserved for our revievy. Mellert, supra.

TV. Excessiveness of Damages Award

Cochran lastly contends that he is entitled to a new trial because, he says, the award of punitive damages was excessive. Cochran suggests that because economic damages totaled $75,000, the verdict of $350,000 must have, by necessity, contained an element of punitive damages. The trial court in this case instructed the jury on the species of fraud for which punitive damages are recoverable, as well as the species of fraud for which punitive damages are not recoverable. The verdict form used by the jury did not specify whether the damages were compensatory damages. The language on the face of the verdict form, however, is consistent with the trial court’s instruction on the species of fraud for which punitive damages are not recoverable. The verdict form specifically instructed the jury that it should find in favor of the Wards and against Cochran and A-l — “if you find fraud, either innocent-fraud by misrepresentation or innocent misrepresentation ...(Emphasis added.) As previously noted, Cochran consented to the use of this verdict form by failing to make any specific objection to it.

■ Because the verdict form applicable only to legal fraud was used by the jury and because it is inconsistent with an award of punitive damages, we must conclude that the total award of $350,000 represented compensatory damages. We presume that the jury follows the trial court’s instructions unless there is evidence to the contrary. Bradley v. State, 925 So.2d 232 (Ala.2005); Wootten v. Ivey, 877 So.2d 585, 590 (Ala.2003). A jury’s verdict is presumed correct, and that presumption is strengthened by the trial court’s denial of a motion for a new trial. Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166 (Ala.2000).

We do not find any evidence to contradict the presumption that the jury followed the trial court’s instruction, notwithstanding Cochran’s bare contention that the verdict “of necessity” included punitive damages. At trial, the Wards presented evidence of actual damage, as well as evidence of mental anguish. As previously noted, during the installation process, the roof leaked throughout the house, causing damage to the house. Mr. Ward testified that the difference in the value of the house before and after the roof was installed was $75,000. Mrs. Ward testified that she suffered inconvenience, disappointment, and loss of sleep as a result of the improperly installed roof. She testified that she had consulted with a physician, who prescribed an antianxiety medication for her. Based on the undisputed evidence regarding economic damage of $75,000 and the evidence of mental anguish, and in light of the language on the verdict form, we reject Cochran’s contention that the $350,000 award “of necessity” included punitive damages. We further note that it is not unusual for juries to award compensatory damages for mental anguish at or above' the level awarded here. See Orkin Exterminating Co. v. Jeter, 832 So.2d 25 (Ala.2001); Oliver v. Towns, 770 So.2d 1059 (Ala.2000); Delchamps v. Bryant, 738 So.2d 824 (Ala.1999); Sperau v. Ford Motor Co., 674 So.2d 24 (Ala.1995), vacated on other grounds, 517 U.S. 1217, 116 S.Ct. 1843, 134 L.Ed.2d 945 (1996), on remand, 708 So.2d 111 (Ala.1997); Crown Life Ins. Co. v. Smith, 657 So.2d 821 (Ala.1994); and Sears, Roebuck & Co. v. Harris, 630 So.2d 1018 (Ala.1993). Because Cochran makes no argument that the damages for mental anguish are excessive, we pretermit any discussion of that issue. Based on the foregoing, the trial court did not err in denying Cochran’s postjudgment motion for a JML or for a new trial.

V Conclusion

The trial court did not err in denying Cochran’s postjudgment motions for a JML, a new trial, or, in the alternative, to alter, amend, or vacate the judgment. The judgment of the trial court is affirmed.

AFFIRMED.

NABERS, C.J., and WOODALL, SMITH, and PARKER, JJ., concur.

      . During the pendency of this case, Mr. Ward died. June Ward, as executrix of his estate, was substituted as a party.


author: WOODALL, Justice.

text:
    GULF BEACH HOTEL, INC., d/b/a Perdido Beach Resort v. STATE of Alabama ex rel. John David WHETSTONE etc. Ex parte Gulf Beach Hotel, Inc., d/b/a Perdido Beach Resort. (In re State of Alabama ex rel. John David Whetstone, District Attorney, on behalf of the citizens and taxpayers of the State of Alabama v. Gulf Beach Park Authority, Inc., et al.).
    1041643 and 1050044.
    Supreme Court of Alabama.
    Jan. 27, 2006.

      William J. Baxley of Baxley, Dillard, Dauphin, McKnight & Barclift, Birmingham; Julian B. Brackin, Jr., of Brackin, McGriff & Johnson, P.C., Foley; and Fred K. Granade of Stone, Granade & Crosby, P.C., Bay Minette, for appellant/petitioner Gulf Beach Hotel, Inc., d/b/a Perdido Beach Resort.
    John David Whetstone, district atty., Bay Minette, for appellee/respondent the State of Alabama.
    Allan R. Chason of Chason <& Chason, P.C., Bay Minette; and William A. Gunter and Otis J. Goodwyn, Jr., Alabama Department of Conservation and Natural Resources for appellees/respondents Gulf State Park Authority, Inc., Barnett Law-ley, and Alabama Department of Conservation and Natural Resources.
    Kirkland E. Reid of Miller, Hamilton, Snider & Odom, LLC, Mobile; James L. North of North & Associates, Birmingham; and Taylor D. Wilkins, Jr., of Wilkins, Bankester, Biles & Wynne, Bay Minette, for appellee/respondent Auburn University-
   WOODALL, Justice.

In case no. 1041643, Gulf Beach Hotel, Inc., d/b/a Perdido Beach Resort (“Gulf Beach”), appeals from the denial of its motion for leave to intervene for the purpose of challenging jurisdiction in a declaratory-judgment action filed by the State of Alabama in the Baldwin Circuit Court. We dismiss the appeal. In case no. 1050044, Gulf Beach petitions this Court for a writ of mandamus directing the Baldwin Circuit Court to vacate its order making Gulf Beach a party to the State’s declaratory-judgment action pursuant to Rule 19, Ala. R. Civ. P., and to dismiss that action for lack of subject-matter jurisdiction. We grant the petition and issue the writ.

The State’s declaratory-judgment action was filed by the district attorney of Baldwin County on May 27, 2005. According to the complaint, the action was brought “at the request of the Governor of the State of Alabama.” The district attorney is given authority to commence an action on behalf of the State by § 6 — 5—1(b), Ala. Code 1975. Named as defendants were the Gulf State Park Authority, Inc. (“the Authority”); the Alabama Department of Conservation and Natural Resources (“the Department”); Barnett Lawley, in his official capacity as Commissioner of Conservation and Natural Resources; and Auburn University. The complaint states, in toto, as follows:

“1.) The Plaintiff is the District Attorney of Baldwin County, Alabama, and brings this action pursuant to Alabama Code Sections 6-5-1; 6-6-220 et seq.; 12-17-184 (1975), at the request of the Governor of the State of Alabama and on behalf of the citizens and taxpayers of Baldwin County, Alabama.
“2.) The defendant, Alabama Department of Conservation and Natural Resources (hereinafter ‘Conservation’) is an agency of the State of Alabama with its principal office located in Montgomery, Alabama and it is a State agency responsible for the operation and maintenance of the Gulf State Park which is located in Baldwin County, Alabama.
“3.) Barnett Lawley is the Commissioner of the Alabama Department of Conservation and Natural Resources.
“4.) The Gulf State Park Authority (hereinafter ‘Authority’) is an Alabama non-profit corporation doing business in Baldwin County, Alabama.
“5.) Defendant Auburn University (hereinafter ‘Auburn’) is an institution of higher learning and a ‘body corporate’ and is operated by agents of the State of Alabama. Code of Alabama § 16-48-1. Auburn University is located in Lee County, Alabama.
“6.) Venue is proper in Baldwin County, Alabama because the subject matter of this action involves real estate located in Baldwin County, Alabama.
“7.) The Plaintiff requests that the Court determine whether the proposed agreement between Conservation and Auburn concerning property located in Baldwin County, complies with all statutory requirements and that any and all statutory requirements are constitutional.
“8.) Alabama citizens and taxpayers, including but not limited to citizens and taxpayers of Baldwin County, have expressed concerns to the Plaintiff regarding the legality of the proposed transaction between Conservation and Auburn and whether the proposed transaction is in compliance with Alabama statutory requirements and that said statutory requirements are constitutional. Under the proposed agreement, which is attached hereto as Exhibit A, Conservation would lease to Auburn a tract of land, which was formerly a part of Gulf State Park. “9.) Alabama Code section 9-14-27 (1975) states that:
“ ‘No concession contract shall be granted, the term of which exceeds six years, unless the concessionaire is required by the terms of the contract to expend major monetary sums for the purpose of improving, furnishing, equipping or enlarging existing facilities or constructing and or furnishing additional facilities on the concession premises. In the event such major expenditures are made by [a] concessionaire, the term of his concession contract may be extended, but in no event exceed [12] years.’
“10.) Alabama Code section 9-14-2 (2001) states:
“ ‘All parks ... now owned or hereafter established or acquired by the State shall constitute the State Park system ... [;] provided, that nothing in this section shall be construed as restricting or limiting in any manner the power and authority now granted by law to the Commissioner of Conservation and Natural Resources to sell, lease or exchange any park ... now owned or hereafter acquired by the State.’
“11.) Plaintiff would represent to the Court that a justifiable controversy exists as to whether Alabama Code Section 9-14-27 limits the number of years that a concession contract may be entered into regarding properties located at the Gulf State Park or whether Alabama Code Section 9-14-2 allows Conservation, without restriction, to sell or lease or exchange property.
“12.) Section 93 of Article IV of the Official Recompilation of the Alabama Constitution of 1901 as amended provides that the State shall not lend money or credit to aid in any individual, association, or corporation.
“13.) The Plaintiff would represent to the court that a justifiable controversy exists as to whether the proposed agreement between Conservation with Auburn violates Section 93 of Article IV of the Official Recompilation of the Alabama Constitution of 1901 as amended as it forbids the State from becoming interested in private enterprise.
“14.) The Plaintiff would represent that a justifiable controversy exists as to whether or not Alabama Code Section 9-14B-1 et seq. which creates the Gulf State Park Authority violates Section 93 of Article IV of the Official Recompilation of the Alabama Constitution 1901 as amended as it causes the State of Alabama to become interested in a private enterprise i.e. a hotel/convention center for profit and allows the State to lend its money or credit in violation of said constitutional section.
“15.) Article XI of the Alabama State Constitution § 213.32 (Amend. 617) states in pertinent part as follows:
“ ‘Such acquisition, provision, construction, improvement, renovation, equipping and maintenance of the State Park[s] System, shall be completed at the direction of the Alabama State Park[s] [S]ystem [IJmprovement [C]orporation with the advice and concurrence of the Joint Legislative Committee on State [PJarks, and all state park system land and facilities, except for existing concessions [sic], concession operations or other existing permitted operations, shall thereafter be exclusively and solely operated and maintained by the Department of Conservation and Natural Resources.’
“16.) The Plaintiff would represent to the Court that a justifiable controversy exists as to whether Article XI, § 213.32 (Amend. 617) is applicable to the property which is the subject of the proposed agreement between Conservation and Auburn.
“17.) The Plaintiff would further represent that if Article XI § 213.32 of the Alabama Constitution is applicable to the proposed transaction between Conservation and Auburn that said agreement would be in violation of the Alabama State Constitution.
“18.) Alabama Code Section 9-15-70, provides the statutory requirements for the sale of lands owned by the State of Alabama.
“19.) The Plaintiff would represent that a justifiable controversy exists as to whether or not Alabama Code Section 9-15-70 controls the lease of property subject to the agreement and whether or not such lease falls within the exemptions set forth in Alabama Code Section 9-15-82.
“20.) Alabama Code Section 9-14-20 requires that Conservation advertise for sealed bids on all concessions within the State parks of Alabama and that invitations to bid will also be given by sending notices to all persons, firms or corporations who have filed a request to be solicited for bids or concessions within the State park system.
“21.) No bids were solicited prior to the proposed agreement between Conservation and Auburn.
“22.) The Plaintiff would represent that a justifiable controversy exists as to whether or not the proposed agreement between Conservation and Auburn regarding land to be leased to Auburn is subject to the bid requirements of Alabama Code Section 9-14-20.
“23.) The proposed agreement between Conservation and Auburn delegates the operation and maintenance of State land to a government entity and a private corporation other than Conservation. “24.) The Plaintiff would represent that a justifiable controversy exists as to whether or not this part of the proposed agreement violates Article XI of the Alabama State Constitution § 213.32 (Amend. 617).
“25.) The Plaintiff would represent that the proposed agreement between the parties if otherwise valid must be entered into with proper notice to the public in an open meeting.
“26.) The Plaintiff would represent that a justifiable controversy exists as to whether Alabama Code Section 13A-14-2, was complied with and whether compliance is required when Conservation and Auburn enter into this agreement. “27.) The Plaintiff would represent to the Court that the Attorney General has been served with a copy of this complaint pursuant to Alabama Code Section 6-6-227 (1975) as the Plaintiff alleges the Gulf State Park Act to be unconstitutional.
“28.) The Attorney General of the State of Alabama has issued an opinion regarding many of the matters set forth in this Complaint and has stated that in his opinion the agreement between Conservation and Auburn and a private corporation is constitutional and in accordance with the laws of the State of Alabama. A copy of the opinion is attached hereto as Exhibit B.
“29.) The Plaintiff would represent that it would be in the best interest of the taxpayers and citizens of Baldwin County and the parties hereto that the Court make a declaration of rights and status of all parties hereunder.
“30.) A justifiable controversy exists among the parties concerning the legality and constitutionality of the proposed transaction between Conservation and Auburn.
“WHEREFORE, the Plaintiff requests that the Court will take expedited action in this case and set the matter for a hearing forthwith. Upon hearing this Complaint the Plaintiff requests that the Court render a final judgment and decree finding and determining whether the transaction between Conservation and Auburn complies with all statutory and constitutional requirements and that whether or not all proceedings in furtherance of the agreement are legal and binding. The Plaintiff would further request that the Court grant any and all further and different relief to which the Plaintiff is entitled.”

(Exhibits omitted in this opinion; emphasis added.)

On July 13, 2005, Gulf Beach filed a motion for leave to intervene in the State’s declaratory-judgment action. According to the motion, it was “for the sole and limited purpose of moving for leave to intervene ... in order to file a motion to dismiss ... or in the alternative to transfer [the] action to the circuit court for Montgomery County.” On July 22, 2005, the trial court denied Gulf Beach’s motion for leave to intervene. Gulf Beach timely appealed from that order (case no. 1041643).

On July 21, 2005, the defendants filed a motion, pursuant to Ala. R. Civ. P. 19, requesting that Gulf Beach be joined as a plaintiff in the declaratory-judgment action. On that same date, the State filed a motion for leave to amend its complaint to add Gulf Beach as “a plaintiff, involuntary plaintiff, or defendant.” On July 22, 2005, the trial court denied the defendants’ motion to join Gulf Beach as a plaintiff. However, on August 2, the trial court granted the State’s motion, thereby making Gulf Beach a party to the State’s declaratory-judgment action. Gulf Beach subsequently filed a motion challenging its joinder, which the trial court denied. Gulf Beach then petitioned this Court for mandamus relief (case no. 1050044).

“There must be a bona fide justi-ciable controversy in order to grant declaratory relief. If no justiciable controversy exists when the suit is commenced, then the court lacks jurisdiction.” Durham v. Community Bank of Marshall County, 584 So.2d 834, 835 (Ala.1991) (citations omitted). Where “the trial court ha[s] no subject-matter jurisdiction, [it has] no alternative but to dismiss the action.” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1029 (Ala.1999). “ ‘Any other action taken by a court lacking subject matter jurisdiction is null and void.’ ” Id. (quoting Beach v. Director of Revenue, 934 S.W.2d 315, 318 (Mo.Ct.App.1996)). The dispositive issue in these cases is whether the State’s complaint alleges a justiciable controversy between the defendants and the State.

This Court has recognized that a purpose of the Declaratory Judgment Act, codified at §§ 6-6-220 through -232, Ala. Code 1975, is “to enable parties between whom an actual controversy exists or those between whom litigation is inevitable to have the issues speedily determined when a speedy determination would prevent unnecessary injury caused by the delay of ordinary judicial proceedings.” Harper v. Brown, Stagner, Richardson, Inc., 873 So.2d 220, 224 (Ala.2003)(some emphasis added). Further, “[w]e have recognized that a justiciable controversy is one that is ‘ “definite and concrete, touching the legal relations of the parties in adverse legal interest, and it must be a real and substantial controversy admitting of specific relief through a [judgment].” ’ MacKenzie v. First Alabama Bank, 598 So.2d 1367, 1370 (Ala.1992)(quoting Copeland v. Jefferson County, 284 Ala. 558, 561, 226 So.2d 385, 387 (1969)).” Harper, 873 So.2d at 224 (emphasis added). Thus, the Declaratory Judgment Act does not “ ‘ “empower courts to decide ... abstract propositions, or to give advisory opinions, however convenient it might be to have these questions decided for the government of future cases.” ’ ” Bruner v. Geneva County Forestry Dep’t, 865 So.2d 1167, 1175 (Ala.2003)(quoting Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 944 (Ala.1994), quoting in turn Town of Warrior v. Blaylock, 275 Ala. 113, 114, 152 So.2d 661, 662 (1963)) (emphasis added in Stamps).

In determining whether the State’s complaint alleges a bona fide justi-ciable controversy, we “must accept the allegations of the complaint as true,” and “must also view the allegations of the complaint most strongly in [the State’s] favor.” Harper, 873 So.2d at 223. Having done so, we conclude that the State’s complaint fails to allege a justiciable controversy between the defendants and the State. Indeed, the State’s declaratory-judgment action is, in essence, nothing more than an action by the State against itself seeking an advisory opinion from this Court.

The Authority is “a public corporation and instrumentality of the state.” § 9-14B-4(a), Ala.Code 1975. The Department is “an executive and administrative department” created “to enable the Governor to exercise a direct and effective control over the natural resources, state parks and historical sites of the state.” § 9-2-1, Ala.Code 1975. The Commissioner is “appointed and ... hold[s] office at the pleasure of the Governor,” and serves as “the advisor of the Governor.” § 9-2-5, Ala.Code 1975. Finally, Auburn University, “a body corporate” consisting of the Governor, the State Superintendent of Education, and the trustees of Auburn University, § 16-48-1, Ala.Code 1975, “is an instrumentality of the State.” Rigby v. Auburn Univ., 448 So.2d 345, 347 (Ala.1984). Consequently, it is inarguable that the State’s declaratory-judgment complaint does not allege any controversy between parties whose legal interests are adverse. Instead, it reflects only the State’s own uncertainty concerning the legality of the proposed transaction between the Department and Auburn University. While it might be convenient for this Court to address the issues raised by the State, this Court is not empowered by the Declaratory Judgment Act to give advisory opinions, and it will not do so.

“A void judgment will not support an appeal.” Baldwin County v. Bay Minette, 854 So.2d 42, 47 (Ala.2003)(citing Stamps, 642 So.2d at 945). Likewise, a void order will not support an appeal. Therefore, Gulf Beach’s appeal is dismissed.

The trial court’s order purporting to add Gulf Beach as a party is void for lack of subject-matter jurisdiction. Thus, we grant Gulf Beach’s petition for writ of mandamus and direct the Baldwin Circuit Court to vacate that order. Further, we direct the trial court to dismiss the State’s declaratory-judgment action for lack of subject-matter jurisdiction.

1041643 — APPEAL DISMISSED.

1050044 — PETITION GRANTED; WRIT ISSUED.

NABERS, C.J., and HARWOOD, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

SEE, J., concurs in the result.

LYONS, J., recuses himself.


author: PITTMAN, Judge. CRAWLEY, Presiding Judge,

text:
    S.B. v. CLEBURNE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2040462.
    Court of Civil Appeals of Alabama.
    Jan. 27, 2006.
    Joshua J. Lane, Anniston, for appellant.
    Troy King, atty. gen., and Sharon E. Ficquette and Elizabeth Hendrix, asst, at-tys. gen., Department of Human Resources.
   PITTMAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(A), Ala. R.App. P.; Ala.Code 1975, §§ 12-15-1(10), 12 — 15—65(f), and 12-15-65(m); Crowley v. Bass, 445 So.2d 902, 904 (Ala.1984); R.G. v. Calhoun County Dep’t of Human Res., 716 So.2d 219, 221 (Ala.Civ.App.1998); Jones v. Webb, 524 So.2d 374, 374 (Ala.Civ.App.1988); Martin v. State ex rel. Dep’t of Human Res., 502 So.2d 769, 771 (Ala.Civ.App.1987); Lucero v. Lucero, 485 So.2d 347, 348 (Ala.Civ.App.1986); and 42 U.S.C. § 671(a)(15)(D)(i).

THOMPSON and BRYAN, JJ., concur.

CRAWLEY, P.J., concurs specially, with writing.

MURDOCK, J., dissents, without writing.

CRAWLEY, Presiding Judge,

concurring specially.

I concur specially in this case to address my concerns regarding the child’s permanent placement. Under the circumstances presented in this case, the trial court was within its discretion to determine that the Cleburne County Department of Human Resources should no longer be required to exert efforts to reunite S.B. and her child. However, when a trial court makes a determination, under Ala.Code 1975, § 12-15-65(m), that the Department of Human Resources no longer must continue its “reasonable efforts” to reunite a parent and his or her child, the trial court is then obligated under Ala.Code 1975, § 12-15-65(n), to hold a permanency hearing as provided in § 12-15-62 within 30 days. Following the resolution of this appeal, such a hearing must be conducted at the trial court level so that the mandatory requirements of § 12 — 15—65(n) can be met.


author: PER CURIAM.

text:
    Linda Head HAMBRIGHT v. David Jonathan HAMBRIGHT.
    2040837.
    Court of Civil Appeals of Alabama.
    Jan. 27, 2006.
    John F. Brasfield, Tuscaloosa, for appellant.
    J. Ronald Boyd and Charles H. Dunn of Boyd, Fernambucq & Vincent, P.C., Birmingham, for appellee.
   PER CURIAM.

Linda Head Hambright (“the mother”) appeals from the trial court’s denial of her motion to set aside a default judgment transferring custody of the parties’ minor son to David Jonathan Hambright (“the father”).

This action began on May 28, 2004, when the father filed in the trial court a pleading entitled a “motion for injunctive relief and motion for modification pursuant to the Alabama Parent-Child Relationship Protection Act.” In his pleading, the father alleged, among other things, that he had fully exercised his visitation rights with the child under the parties’ February 26, 2001, divorce judgment and that he and the child had an excellent relationship. He further alleged that the mother had orally informed him that she intended to move to Jackson, Mississippi. The father requested, among other things, that the trial court enjoin the mother from removing the child from the jurisdiction of the trial court; he also sought a modification of the provisions of the divorce judgment “concerning custody and visitation.”

In her response to the father’s pleading, the mother alleged, among other things, that she and the child had moved from Hoover, Alabama, to Brandon, Mississippi, and that she had provided the father with notice of her intention to move to Mississippi and to permanently reside in that state. The mother further alleged that her motive for the move was a change of employment and that she had obtained a new position with a substantial increase in salary that would provide the child with more advantages in life. She also asserted that the move had not interrupted the father’s visitation with the child and that she and the father met at the Alabama/Mississippi state line to exchange the child for visitation. The mother stated that the move was in the best interest of the child and requested that the trial court permit her to remove the child from the jurisdiction of the trial court.

The mother also counterclaimed for an increase in child support. The mother’s response and counterclaim were filed by M. Judith Barnett, an attorney licensed to practice law in the State of Mississippi but not in the State of Alabama, and John F. Brasfield, an attorney licensed to practice law in the State of Alabama. On July 26, 2004, Barnett filed a “Verified Application for Admission to Practice under Rule VII of the Rules Governing Admission to Alabama State Bar.” In her application, Barnett requested that the trial court permit her to practice law in the State of Alabama for the limited purpose of representing the mother in this action only; Brasfield consented to the association of Barnett as counsel for the mother in this action.

In September 2004, the trial court set this action for a hearing on January 20, 2005; the hearing was ultimately continued until April 4, 2005.

On January 19, 2005, the father filed a motion requesting that the trial court compel the mother to appear for a deposition. In his motion, the father alleged that the mother had failed to attend scheduled depositions on October 24, 2004, November 8, 2004, and December 27, 2004. The father further alleged that Barnett had advised the father’s attorney that she had experienced trouble communicating with the mother in late December 2004 and that she was unable to find the mother. On March 3, 2005, the trial court held a hearing on the father’s motion. On that same day, it entered an order requiring the mother to attend a deposition in Birmingham, Ala-: bama, no later than March 20, 2005. In its March 3, 2005, order, the trial court noted that neither the mother nor her counsel were present at the March 3, 2005, hearing.

The trial court conducted an ore tenus hearing on April 4, 2005; that hearing was not transcribed. On April 6, 2005, the trial court entered a judgment transferring custody of the child to the father, granting the mother specific visitation rights, and ordering the mother to pay monthly child support. In its judgment, the trial court noted that neither the mother nor her counsel were present for the hearing.

On April 8, 2005, Barnett filed a motion to withdraw as counsel for the mother. In her motion, Barnett alleged that the mother had failed to cooperate with her and had failed to contact her for several months. The trial court granted Barnett’s motion on April 11, 2005.

On May 3, 2005, Brasfield, the mother’s attorney who is licensed to practice in Alabama, filed in open court an appearance on behalf of the mother. Also on May 3, 2005, the mother filed in open court a “motion for emergency hearing” and a motion styled as a “motion to alter, amend, or vacate and petition to show cause.” As grounds in support of her motion, the mother alleged:

“1) On April 4, 2005, a hearing was held on a petition filed by the [father] concerning the [mother’s] relocation. The [mother] hired an attorney in Mississippi, Judith Barnett, to represent her before the Court. Ms. Barnett appeared Pro Hac Vice through Attorney John F. Brasfield. Throughout the intervening months, Attorney Barnett lost contact with the [mother]. The [mother] had a new address and the attorney’s letters to the [mother] were never forwarded to the [mother]. There is no indication from Ms. Barnett if she had tried any other type of search for the mother other than the U.S. Mail. Thus, the [mother] never received notice of the April 4th court date. She was awaiting to hear from her attorney during this period. The [mother] contends that she had properly filed a change of address for[m] when she moved.
“2) Throughout the months in question, the [father] was in frequent contact with the [mother] and exercised regular visitation with the parties’ minor son. The [father] knew where the mother was living and her telephone number. The [father] never mentioned the upcoming Court date nor did he mention anything about the change of custody until the Sunday of the visitation, whereupon he informed the [mother] that she had lost her custody of the minor child. The father’s attorney had knowledge of the inability of the [mother’s] attorney to find [the mother]. Mr. Boyd [the father’s attorney] had contacted, Judith Barnett and John Brasfield in regard to discovery and depositions, earlier in the year and was told by both attorneys that they could not find the [mother].
“3) The [mother] had no reason to disregard or not to appear with this Court. She simply did not receive any notice from her attorney, and from her lack of experience with the legal system and the seemingly smooth relations and visitations with the [father], she thought this matter may have been concluded between the attorneys.
“4) It is within the Court’s discretion to set aside this judgment and set this matter to be heard on the merits of the matter before the trial court.”

The trial court held a hearing on the mother’s postjudgment motion on May 13, 2005; that hearing was not transcribed. On May 16, 2005, the trial court entered an order denying the mother’s postjudgment motion. The mother timely appealed.

The dispositive issue on appeal is whether the trial court exceeded its discretion in denying the mother’s motion to set aside the default judgment.

Rule 55(c), Ala. R. Civ. P., states:

“In its discretion, the court may set aside an entry of default at any time before judgment. The court may on its own motion set aside a judgment by default within thirty (30) days after the entry of the judgment. The court may also set aside a judgment by default on the motion of a party filed not later than thirty (30) days after the entry of the judgment.”

In Sampson v. Cansler, 726 So.2d 632 (Ala.1998), our supreme court observed:

“In Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala.1988), this Court held that the trial court has broad discretion in determining whether to grant or to deny a defendant’s motion to set aside a default judgment, but that that discretion is not boundless. The trial court must balance two competing policy interests associated with default judgments — judicial economy and the defendant’s right to defend on the merits. Kirtland, 524 So.2d at 604. These interests must be balanced under the two-step process set out in Kirtland.
“Under Kirtland, the trial court must first presume that cases should be decided on the merits whenever it is practicable to do so. This presumption exists because the right to have a trial on the merits ordinarily outweighs the need for judicial economy. Second, the trial court must apply a three-factor analysis in determining whether to set aside a default judgment: it must consider ‘1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.’ Kirtland, 524 So.2d at 605.”

726 So.2d at 633. Further, it is well settled that,

“[rjegarding the first Kirtland factor, the existence of a meritorious defense,
“ ‘a defaulting party has satisfactorily made a showing of a meritorious defense when allegations in an answer or in a motion to set aside the default judgment and its supporting affidavits, if proven at trial, would constitute a complete defense to the action, or when sufficient evidence has been adduced either by way of affidavit or by some other means to warrant submission of the case to the jury.
“ ‘The allegations set forth in the answer and in the motion must be more than mere bare legal conclusions without factual support; they must counter the cause of action averred in the complaint with specificity — namely, by setting forth relevant legal grounds substantiated by a credible factual basis. Such allegations would constitute a “plausible defense.” ’
“[Kirtland v. Fort Morgan Auth. Serv., Inc.,] 524 So.2d [600] at 606 [(Ala.1988) ]. (citations omitted).
“Regarding the third Kirtland factor, culpability of the defaulting party’s conduct,
“ ‘[cjonduct committed wilfully or in bad faith constitutes culpable conduct for purposes of determining whether a default judgment should be set aside. Negligence by itself is insufficient. Willful and bad faith conduct is conduct characterized by incessant and flagrant disrespect for court rules, deliberate and knowing disregard for judicial authority, or intentional nonre-sponsiveness ....
“ ‘However, a defaulting party’s reasonable explanation for inaction and non compliance may preclude a finding of culpability.’
524 So.2d at 607-08 (citations omitted).”

Rudolph v. Philyaw, 909 So.2d 200, 203 (Ala.Civ.App.2005).

It is also well settled that, “[rje-garding the second Kirtland factor, the absence of prejudice to the nondefaulting party, ‘the prejudice must be substantial.’ ” Philyaw, 909 So.2d at 203 (quoting Kirtland, 524 So.2d at 607). “[M]ere delay or increased cost is not sufficient to justify a refusal to set aside a default judgment.” Ex parte Gilliam, 720 So.2d 902, 906 (Ala.1998).

As to the necessity that a defendant demonstrate that he or she meets all three Kirtland factors, particularly with respect to the second Kirtland factor, this court recently stated in Sumlin v. Sumlin, 931 So.2d 40 (Ala.Civ.App.2005):

“We note ... that our Supreme Court in Kirtland did not state which party had the burden of showing each of the Kirtland factors. Obviously, as a general rule, a movant has the burden of demonstrating those elements necessary to justify the trial court in granting the relief requested. This would be particularly appropriate as to the first and third Kirtland factors — the existence of a meritorious defense and the absence of culpability on the part of the movant in allowing the default judgment to occur— in that those factors speak to matters within the knowledge of the movant. The same may not be true of the second factor, however. To put the burden of demonstrating the lack of prejudice to the nonmovant on the movant may be problematic in two ways: (1) its asks the movant to prove a negative, and (2) whether or not the nonmovant has been prejudiced in some manner, such as by the death or other unavailability of a witness, is information more commonly within the knowledge of the nonmovant.
“.... In Phillips v. Randolph, [828 So.2d 269 (Ala.2002),] ... all three of the Kirtland factors weighed in favor of denying the defendant’s motion for relief from the default judgment. ... [A] failure to demonstrate that one or both of the second and third Kirtland factors supports the granting of relief from a default judgment is not necessarily fatal to a motion for such relief....
“In Ex parte Gilliam, 720 So.2d [902] at 906 [ (Ala.1998) ], the Supreme Court found fault with the nonmovant for not presenting concrete facts indicating that any witnesses had become unavailable or that any evidence had been lost. Also, in Sampson v. Cansler, 726 So.2d 632 (Ala.1998), the Supreme Court indicated its favorable disposition toward a defendant’s motion for relief from a default judgment on the ground that ‘Ms. Can-sler [the nonmovant] has not argued prejudice except in the form of delay and increased costs.’ 726 So.2d at 635. Further, as recently as December of last year, our Supreme Court stated that ‘common sense dictates that a plaintiff [the nonmovant] is usually in a far better position to know what prejudice might befall him from the delay, and more importantly how substantial that prejudice would be,’ even as it indicated that the Court’s holding in Phillips v. Randolph, 828 So.2d 269, required an initial showing by the movant. Royal Ins. Co. of America v. Crowne Invs., Inc., 903 So.2d 802, 811 (Ala.2004). While this court’s holding in Philyaw was to the same effect as the Supreme Court’s holding in Phillips v. Randolph, both Phillips and Philyaw were cases in which the analysis of all three Kirtland factors weighed against granting relief from the default judgment.”

Sumlin, 931 So.2d at 48-49 (footnote omitted).

In Sumlin, the husband sued the wife for a divorce and sought custody of the parties’ minor daughter. The wife answered and counterclaimed seeking custody of the daughter. Neither the wife nor her attorney appeared for the trial of the case. Consequently, the trial court conducted an ore tenus hearing and entered a default against the wife. Several days later, the trial court entered a judgment of divorce awarding custody of the daughter to the husband. The wife filed a timely motion to set aside the default judgment. As grounds in support of her motion, the wife alleged that her attorney had a scheduling conflict — specifically, that her attorney had several criminal matters scheduled on the same date and at the same time that the divorce action was set for trial. The wife also alleged that her attorney had tried unsuccessfully on a number of occasions to contact the trial judge to request a continuance; that her attorney had discussed the scheduling conflict with the husband’s attorney but the husband’s attorney had advised the wife’s attorney that the husband’s attorney would have to appear because the husband would not agree to a continuance; and that the wife’s attorney filed a motion to continue and advised the wife not to appear. Thereafter, the trial court entered an order denying the wife’s motion to set aside the default judgment. Sumlin, 931 So.2d at 44.

This court held that the trial court exceeded its discretion in failing to set aside the default judgment, and we reversed the trial court’s judgment and remanded the cause for further proceedings. 931 So.2d at 49. In so holding, this court stated:

“We are aware of no case in which this court or our Supreme Court has held that a ‘consideration’ of the Kirt-land factors and the necessary ‘balancing] of the equities’ made it appropriate to deny relief from a default judgment under circumstances such as those present here. The meritorious-defense factor weighed in favor of such relief, and there is at least a genuine issue as to whether the culpable-conduct factor did also. Neither the record nor the nonmovant suggests that there would be substantial prejudice if relief were granted. Nor do we believe it appropriate to interpret Phillips [v. Randolph, 828 So.2d 269 (Ala.2002),] as supporting a denial of relief under such circumstances, particularly in a case such as this, where so much (the proper custody of a child) is at stake and the record reflects that the defaulting party moved so promptly for relief.
“As noted at the outset, a trial court’s discretion in deciding whether to grant or to deny a motion for relief from a default judgment is not absolute. In reviewing trial-court decisions denying relief from default judgments, we must take care not to abdicate our responsibility as an appellate court to ensure that trial courts, within the discretion afforded them, are fairly balancing the equities in such cases and preserving the ‘strong bias’ in favor of deciding cases on their merits.”

931 So.2d at 49 (emphasis added).

In the present case, as in Sumlin, the mother filed a response before the matter was tried and before the default judgment was entered against the mother. In this case, as in Sumlin, the mother’s response made allegations, that if proven at trial, would constitute a complete defense to the action. We therefore conclude that, based on the record before us, the mother fully satisfied the first Kirtland factor. Turning to the third Kirtland factor, in the present case, as in Sumlin v. Sumlin, there is, at a minimum, a genuine issue as to whether the mother engaged in culpable conduct. Finally, turning to the second Kirtland factor, in the present case, as in Sumlin, neither the record nor the father, the nonmovant, suggests that there would be substantial prejudice if the default judgment was set aside. Finally, and importantly, this case, like Sumlin, involves the important issue of child custody.

Based on Sumlin v. Sumlin, we hold that the trial court exceeded its discretion in this particular case in denying the mother’s motion to set aside the default judgment. Accordingly, the trial court’s judgment is reversed, and the cause is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

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

THOMPSON, J., dissents, without writing.

      . At the time of the entry of the default judgment, the son was 11 years old; he is now 12 years old.


author: MURDOCK, Judge.

text:
    Glenn Edwin HUBBARD v. Debra M. HUBBARD.
    2040481.
    Court of Civil Appeals of Alabama.
    Jan. 27, 2006.
    Derek E. Yarbrough of Motley, Motley & Yarbrough, LLC, Dothan, for appellant.
    J.R. Herring, Dothan, for appellee.
   MURDOCK, Judge.

Glenn Edwin Hubbard (“the husband”) appeals from a judgment of the Dale Circuit Court divorcing him from Debra M. Hubbard (“the wife”). We dismiss the appeal as being from a nonfinal judgment.

The parties were married in October 1987. At the time this action was filed, the parties had one surviving child, a son who was 13 years old. The wife filed this action in the Houston Circuit Court in February 2004, seeking a divorce on the ground of incompatibility and seeking custody of the parties’ minor child. The ease was transferred to the Dale Circuit Court in August 2004 and was subsequently eon-solidated with a child-support case also pending between the parties. The case was tried ore tenus on October 19, 2004. On October 26, 2004, the trial court entered a judgment that divorced the parties, awarded the parties joint legal and physical custody of the parties’ minor child, and declined to award child support to either party. The trial court reserved ruling on all other issues.

On November 10, 2004, the trial court amended its October 26, 2004, judgment to address the division of the marital property as follows: the parties’ vehicles, furniture, and personal items were divided; the husband was awarded the marital home-place consisting of a double-wide mobile home and 2 acres of land; the wife was awarded approximately 25-27 acres of land adjacent to the homeplace; the wife was ordered to be responsible for paying her student-loan debt; the husband was ordered to be responsible for all of the payments to be made under the husband’s Chapter 13 bankruptcy plan and all other debts of the marriage, except for the wife’s student-loan debt; and the trial court retained jurisdiction to modify the distribution of property and title to the double-wide mobile home and the 2 acres of land if “the husband converts his Chapter 13 Bankruptcy or does not complete his payment plan so that the wife became responsible for paying the debts of the parties,” for which the husband was responsible.

In December 2004, the husband filed a motion for a new trial on the grounds that the judgment was not supported by the evidence and that the trial court had abused its discretion in making the property division. On January 18, 2005, the trial court amended its judgment with respect to its award of one of the parties’ automobiles, but otherwise it denied the husband’s motion. The husband appeals.

Although neither party has raised the issue of this court’s jurisdiction over this appeal, we note that “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case. See Jim Walter Homes, Inc. v. Holman, 373 So.2d 869, 871 (Ala.Civ.App.1979). Because we find that there was no final judgment, we dismiss the appeal.

Our Supreme Court has defined a final judgment as

“a terminative decision by a court of competent jurisdiction which demonstrates there has been complete adjudication of all matters in controversy between the litigants within the cognizance of that court. That is, it must be conclusive and certain in itself.... All matters should be decided; damages should be assessed with specificity leaving the parties with nothing to determine on their own.”

Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623, 625 (Ala.1976).

We have not located a case exactly like the present case, in which the trial court made a disposition of all of the marital property but purported to retain jurisdiction to modify the property division upon the occurrence of some contingency. This court has, however, frequently dismissed appeals from judgments that failed to dispose of all of the marital property or otherwise failed to adjudicate all issues between the parties. See Deal v. Deal, 899 So.2d 1010 (Ala.Civ.App.2004) (the husband was ordered either to pay the wife $11,500 as a property settlement or to pay that amount over time as periodic alimony); McIntyre v. McIntyre, 889 So.2d 587 (Ala.Civ.App.2004) (the trial court retained jurisdiction to approve the expenses of a sale of marital property and to divide the net proceeds between the parties); and McGill v. McGill, 888 So.2d 502 (Ala.Civ.App.2004) (judgment directing the wife to make two lists of the parties’ remaining personal property and directing the husband to choose which list of property he wanted).

The judgment in this case disposes of all of the marital property, but the trial court purports to retain jurisdiction to modify the property division upon the happening of certain contingencies. By retaining jurisdiction to modify the property division, the trial court necessarily did not effect a complete adjudication of all matters in controversy. To phrase the matter another way, there remains “ ‘something more for the court to do’ ” with respect to the disposition of the homeplace. Owens v. Owens, 739 So.2d 511, 513 (Ala.Civ.App.1999) (quoting Wesley v. Brandon, 419 So.2d 257, 258 (Ala.Civ.App.1982)). Accordingly, the judgment is not final and therefore is not appealable.

Unlike an award of child support or alimony, a property division in a divorce is not ongoing but is a one-time thing. DuBoise v. DuBoise, 275 Ala. 220, 228, 153 So.2d 778, 785 (1963). Thus, a trial court lacks the power or authority to modify a final property division based on future events. Id. See McEntire v. McEntire, 345 So.2d 316, 319-20 (Ala.Civ.App.1977) (a trial court had no authority to modify a husband’s obligation to make mortgage payments whether that obligation was characterized as either a part of the property settlement or as alimony in gross).

Because the trial court purported to retain jurisdiction to modify the property division based upon future events, it has not entered a final judgment reviewable by this court on appeal. Accordingly, the husband’s appeal is due to be dismissed.

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

APPEAL DISMISSED.

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

      . At the time of the trial, the husband’s Chapter 13 bankruptcy plan called for him to make payments of $625 per month, with 51 payments remaining. Although the record is not clear, it appears that much of the debt included in the husband’s Chapter 13 bankruptcy plan relates to a failed business of the husband, the mobile home, and the two acres of land awarded to the husband.
      The record is also not clear as to whether the wife is personally obligated on any of the debt included in the husband’s Chapter 13 bankruptcy plan.

      . If the trial court’s intention in retaining jurisdiction to modify the property division was to insure that the wife was not forced to pay debts for which the husband was responsible, the trial court is free to impose an obligation on the husband to indemnify the wife, or to grant the wife a mortgage or security interest in some or all of the property awarded to the husband.


author: BASCHAB, Judge.

text:
    Lebron LUSTER v. STATE of Alabama.
    CR-03-1065.
    Court of Criminal Appeals of Alabama.
    Aug. 27, 2004.

      Lebrón Luster, pro se.
    Charles W. Crook, gen. counsel, and Andrew W. Redd, asst. gen. counsel, Department of Corrections, for appellee.
   BASCHAB, Judge.

In a prison disciplinary proceeding, the appellant, Lebrón Luster, was found guilty of absconding supervision — absent without permission, a violation of Rule # E9, Regulation # 403. He was sanctioned with the loss of privileges for 45 days and referral for custody review. He also alleges that he was removed from work release as a result of the disciplinary proceeding. The appellant filed a petition for a writ of habeas corpus, alleging that prison officials violated his due process rights under Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), during the disciplinary proceeding. After the State responded, the circuit court summarily dismissed the petition. This appeal followed.

The appellant argues that he was denied due process of law during the disciplinary proceeding because he was not allowed to call two witnesses, including his work release supervisor, to testify during the hearing. The disciplinary report indicates only that the witnesses were “[n]ot available.” (C.R. 15.) We addressed a similar situation in Pearsall v. State, 564 So.2d 1014, 1017 (Ala.Crim.App.1989), aff'd in part, rev’d in part on other grounds, 564 So.2d 1017 (Ala.1990), as follows:

“Appellant contends that the disciplinary board failed to honor his request to require the presence of a witness at the hearing. The record shows that he requested the presence of Alfred Smith to be a witness in his behalf. The record also shows, ‘Witness: Not Available.’ In any case, Smith did not appear, and appellant alleges in his petition that the board did not contact Smith and made no effort to do so. In Ponte v. Real, 471 U.S. 491, 105 S.Ct. 2192, 85 L.Ed.2d 553 (1985), the Supreme Court elaborated on its Wolff v. McDonnell position regarding the necessity for a statement of reasons for not calling a witness requested by an inmate at a disciplinary hearing. The Court held that a statement of reasons in the record was constitutionally required. Was the reason given here sufficient? We do not think so. In our opinion, more than just a terse ‘not available’ is required. Specific reasons must be given, explaining the witness’s nonavailability.”

Also, in Starkling v. State, 697 So.2d 499, 500 (Ala.Crim.App.1997), we explained:

“ ‘An inmate facing a disciplinary proceeding should be allowed to call witnesses in his defense, when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.’ Wolff v. McDonnell, 418 U.S. 539, 563, 94 S.Ct. 2963, 2979, 41 L.Ed.2d 935 (1974). In this case, if the sole reason for not making the witnesses available to the appellant at the disciplinary hearing was that they could not be reached in what appears from the disciplinary report to have been a last minute and rather perfunctory attempt to telephone them, that reason would be insufficient to meet the due process requirements of Wolff v. McDonnell. ‘ “Denying the presence of a witness because of the mere fact that the requested witness is ‘off duty’ or ‘cannot be reached by phone’ does not comport with those basic due process rights afforded in both Williams [v. Davis, 386 So.2d 415 (Ala.1980)], and Wolff, supra.” ’ Lewis v. State, 485 So.2d 811, 812 (Ala.Cr.App.1986), quoting Ex parte Bland, 441 So.2d 122, 125 (Ala.1983).”

From the record before us, we cannot determine why the appellant was not allowed to call the requested witnesses during the disciplinary hearing. Therefore, we remand this case to the circuit court with instructions that that court set aside its order of dismissal, conduct a hearing to determine the reason or reasons the witnesses were not made available, and make specific findings of fact as to the reason or reasons the witnesses were not made available. If the circuit court determines that the failure to have the witnesses present was for a reason or reasons other than those authorized by Wolff, the appellant is entitled to a new disciplinary hearing. On remand, the circuit court shall take all necessary action to ensure that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include a transcript of the evidentiary hearing and the circuit court’s specific findings of fact.

REMANDED WITH INSTRUCTIONS.

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

      . Because the State does not refute that allegation, we must take it as true. See Ex parte Brooks, 897 So.2d 1017 (Ala.2004).

      . Although the Wolff due process protections do not apply in cases involving the loss of privileges, see Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), and Summerford v. State, 466 So.2d 182 (Ala.Crim.App.1985), the Alabama Supreme Court has held that an inmate has a liberty interest in remaining on work release. See Ex parte Beny, 794 So.2d 307 (Ala.2000).

      . At this time, we pretermit discussion of any other arguments the appellant raises in his brief to this court.