text:
    Millie VICK, as guardian of John David Powell v. Kathy SAWYER et al.
    1041654.
    Supreme Court of Alabama.
    Feb. 10, 2006.

      Kenneth L. Mendelsohn, Thomas E. James, and Ellenann B. Yelverton of Jemi-son, Mendelsohn & James, P.C., Montgomery, for appellant.
    Christopher A. Bottcher and Anthony R. Smith of Sirote & Permutt, P.C., Birmingham, for appellees Kathy Sawyer and Levi Harris.
    H. William Wasden and John P. Kav-anagh, Jr., of Bowron, Latta & Wasden, P.C., Mobile, for appellee Susan Stuardi.
   WOODALL, Justice.

Millie Vick, as guardian of John David Powell, her incapacitated son, appeals from a summary judgment in her action against Kathy Sawyer, an official of the Alabama Department of Mental Health and Mental Retardation (“the Department”), and Levi Harris and Susan Stuardi, as directors of the Albert P. Brewer Developmental Center (“the Center”), seeking recovery for injuries allegedly suffered by Powell while he was in the care and custody of the Center, which is operated and managed by the Department. This is second time this Court has addressed the issues presented in this case. See Ex parte Alabama Dep’t of Mental Health & Mental Retardation, 840 So.2d 876 (Ala.2002). We affirm.

Vick commenced this action against Sawyer, Harris, Stuardi, and the Department on June 7, 2001, seeking recovery for injuries allegedly sustained by Powell on four separate occasions: November 28, 1992; December 31, 1992; January 2, 1993; and June 8, 1999. The complaint alleged that, on those occasions, Powell “suffered injuries from abuse and neglect while at the Center.” It also alleged (1) that Harris and Stuardi “negligently failed to prevent continued abuse and neglect to John David Powell”; (2) that Sawyer, Harris, and Stuardi “negligently failed to correct [a] long-standing problem” of abuse of residents by employees of the Center; and (3) that Sawyer, Harris, and Stuardi “negligently failed to supervise employees of the [Department] including, but not limited to, negligently failing to inform employees of the policies and regulations; negligently failing to have supervisors properly train employees; [and] negligently allowing employees to abuse residents and negligently failing to monitor residents.” (Emphasis added.)

As we noted in our first opinion in this case, Vick sought production of the “investigative report[s] of the bureau of special investigations (‘BSI’), the investigative division of [the Department], relating to injuries Powell received while he was a resident at the [Center].” 840 So.2d at 876. The Department objected to producing the reports on the ground that such reports were “[l]aw enforcement investigative reports and related investigative material,” which, under Ala.Code 1975, § 12-21-3.1(b), are discoverable “prior to the disposition of the criminal matter under investigation ... only upon showing that the party seeking discovery has substantial need of the materials and is unable, without undue hardship, to obtain the substantial equivalent by other means.” § 12-21-3.1(d). According to the Department, “[a]ll witnesses interviewed by [the] BSI and all the documents reviewed by [the] BSI were available to [Vick],” who had failed to “present sufficient evidence to meet the requirements of [§ 12-21-3.1].”

The trial court rejected the Department’s argument and ordered production of the reports. In our opinion released on July 3, 2002, we directed the trial court to vacate that order, holding that the Department may ultimately “be compelled to produce the BSI investigation report[s], but only after Vick ha[d] shown that she [was] unable, without undue hardship, to obtain the substantial equivalent of the information contained in the report[s] by other means.” 840 So.2d at 877. On March 7, 2005, Vick filed a “renewed motion to compel production of the Bureau of Special Investigations reports.” The trial court denied that motion.

Subsequently, Sawyer, Harris, and Stuardi moved for summary judgments on the ground that they are entitled to “State-agent immunity,” as that concept is stated in Ex parte Cranman, 792 So.2d 392 (Ala.2000), and as it has been applied in Cranman and its progeny. Stuardi summarized her argument, as follows:

“Susan Stuardi is entitled to the defense of State-agent immunity in her personal capacity because any of her actions taken with respect to John David Powell (or any of the other residents at the [Center]) were undertaken in her capacity as Facility Director. There is no evidence that Ms. Stuardi exceeded the scope of her authority or violated any rule or regulation or that she acted willfully, maliciously, fraudulently or in bad faith. Ms. Stuardi is entitled to State-agent immunity ... inasmuch as she was a state employee, an agent of the state, and acted at all times by exercising her judgment in executing work responsibilities.”

Similarly, Harris and Sawyer argued that they are entitled to “immunity for exercising their judgment in the administration of the Department and the [Center].” In particular, they contended that they are entitled to immunity “for exercising their judgment with regard to allocating resources, hiring, firing, transferring, assigning, or supervising personnel; discharging duties imposed on the Department and/or the [Center] by statutes, rules, or regulations; and exercising judgment in the ... counseling or releasing [of] persons of unsound mind.”

Vick did not oppose the summary-judgment motions on their merits. Instead, she moved, pursuant to Ala. R. Civ. P. 56(f), “to continue the summary judgment hearing ... until a reasonable time after [she was] allowed to conduct [her] remaining discovery.” She requested that the trial court conduct an in camera review of the BSI reports, stating: “Plaintiff feels that after this court views the BSI reports, the court will find the information discoverable and that without production there will be an undue hardship on the Plaintiff to locate the information from other sources.” (Emphasis added.)

On June 16, 2005, the trial court granted the summary-judgment motions, stating:

“This matter is before the court on several pending motions. The remaining defendants, Kathy Sawyer, Levi Harris and Susan Stuardi have filed motions for summary judgment based primarily on their claims of state agent immunity. See Ex parte Cranman, 792 So.2d 392 (Ala.2000). [Vick], for her part, has filed a motion to continue the hearing on summary judgment pursuant
to Rule 56(f) and re-argues her motion for the court to enter an order directing the defendant to produce a copy of BSI reports. This court previously denied such a motion finding that [Vick has] failed to meet [her] burden of overcoming the privilege associated with such documents. See Ex parte Alabama Department of Mental Health & Mental Retardation, 840 So.2d 863 (Ala.2002).
“[Vick] continues to note the ‘undue hardship’ she suffers due to the lack of availability of information about witnesses for the occurrences made the basis of this suit, specifically those occurring on November 28, 1992, December 31, 1992, and January 2, 1993. The court would note that a primary cause of [Vick’s] hardship is her failure to file her lawsuit until 2001, almost nine years after three of the four occurrences of which she complains. It would appear to be inequitable to permit [Vick] to create, in large part, the hardship, and then argue the hardship as grounds for overcoming the privilege against disclosure of BSI records. For this reason, the court again denies the motion to compel the production of the BSI records, and further denies [Vick’s] motion to continue the summary judgment hearing so that [she] may obtain the BSI records in order to defend against the motions for summary judgment.
“[Vick] concedes that without the benefit of the BSI records, she has no evidence in opposition to the motion[s]. Thus, upon the review of the record, it appears to the court that the three remaining defendants are all entitled to state agent immunity under the facts of this case and accordingly, they are due to be dismissed from this lawsuit.
“For the foregoing reasons, [Vick’s] motion to continue the motion for summary judgment hearing is denied. Defendants Sawyer, Harris, and Stuardi’s Motions for Summary Judgment are hereby GRANTED.”

Vick appealed, seeking a reversal of the summary judgments and an order directing the trial court to order production of the BSI reports.

“A summary judgment is proper and must be affirmed on appeal if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.” Hughes v. Hertz Corp., 670 So.2d 882, 885 (Ala.1995)(citing Rule 56, Ala. R. Civ. P.). “[T]he summary-judgment stage is generally the appropriate point in litigation for determining [State-agent] immunity questions,” Cornner v. Mitchell, 886 So.2d 816, 816 (Ala.Civ.App.2003) (Pittman, J., dissenting), “following appropriate discovery.” Ex parte Alabama Dep’t of Mental Health & Mental Retardation, 837 So.2d 808, 813-14 (Ala.2002).

“Rule 56(f) protects a party opposing a motion for summary judgment if the party states reasons why he cannot present essential facts.” Starks v. Commercial Union Ins. Co., 501 So.2d 1214, 1216 (Ala.1987). Proper application of Rule 56(f) requires the nonmoving party to demonstrate by affidavit, Herring v. Parkman, 631 So.2d 996, 1002 (Ala.1994), “that matters it seeks by further discovery are ‘crucial’ to its case.” Smith v. Yanmar Diesel Engine Co., 855 So.2d 1039, 1042 (Ala.2003) (citing Stallworth v. AmSouth Bank, 709 So.2d 458, 468 (Ala.1997)); see also McCullar v. Universal Underwriters Life Ins. Co., 687 So.2d 156, 161 (Ala.1996) (nonmovant at summary-judgment stage has the “burden of proving how information from [documents sought in discovery] is crucial to her case”). The requirements of Rule 56(f) are similar to what the proponent of production in a case such as this one must demonstrate.

Specifically, we held in Ex parte Alabama Department of Mental Health & Mental Retardation, 840 So.2d 863, 867 (Ala.2002), that investigative reports of the BSI are “protected under § 12-21-3.1,” Ala.Code 1975, and, consequently, that a party is not entitled to information in the reports absent “a showing of undue hardship.” 840 So.2d at 868. In so doing, we discussed the manner in which the proponent of production of the reports could make such a showing:

“A showing of undue hardship requires more than a mere conclusory statement by the party seeking the information that he or she could not obtain the equivalent of the information in the reports sought by discovery without undue hardship. Before the trial court could grant [the proponent’s] motion to compel the production of the BSI investigation report, [she] was required to show that she had at least tried to interview or depose the witnesses interviewed by BSI investigators. Furthermore, before the trial court granted [the proponent’s] motion to compel production of the BSI report, the trial court should have conducted an in camera inspection of that report to determine whether the statements contained in the report are relevant and whether the information is such that it cannot be obtained from another source without undue hardship. See Ex parte May, 393 So.2d 1006, 1007 (Ala.1981) (holding that if tangible material is sought in discovery, in camera examination of the material may be required). The trial court is the appropriate forum for testing the validity of the justifications [the proponent] argues ....
“... Undue hardship might include, among other things, the unavailability of a witness whose statement cannot be obtained from another source; the lack of access to patients who had given statements to the BSI investigators or the impossibility of obtaining the equivalent of those statements from patients because of a patient’s physical or mental deterioration; the refusal of patients or hospital staff to make a statement to [the proponent] for fear of reprisal by the hospital; or the refusal of patients or staff members or even former staff members to speak to [the proponent] out of fear of self-incrimination.”

840 So.2d at 868-69 (emphasis added). Thus, under § 12-21-3.1, the proponent of discovery must not only demonstrate a general unavailability of witnesses, but she must also — as under Rule 56(f) — apprise the trial court of the purported relevance and materiality of the information sought.

In connection with her Rule 56(f) motion, Vick’s counsel filed an affidavit, stating: “[Vick] is in the unique position of trying to determine what happened to her son on the four occasions he obtained injuries.” The affidavit then described counsel’s efforts to contact witnesses who might have information regarding the cause of Powell’s injuries. Counsel stated that he had deposed six individuals, including Sawyer and Harris, but none of them “remembered anything about [Powell’s] injuries.” Counsel also said that he had contacted 11 other former employees of the Center, who likewise remembered nothing about Powell’s injuries. Counsel then stated that searching for additional witnesses would be prohibitively expensive. It was for that reason that, according to counsel, Vick could not respond to the summary-judgment motions “without reviewing the BSI reports.” Vick asserts this same ground for the production of the BSI reports in her briefs on appeal.

In opposition to this argument, the defendants all contend that the reports are immaterial to the defense asserted in their motions for summary judgment, namely, that Vick’s claims against them are barred by State-agent immunity. They also contend that Vick has failed to apprise the trial court — and this Court — of the potential relevance of the reports. Stuardi argues that Vick has “offered no explanation to link the [rjeports to the issues supporting immunity from suit under Cranman and [its progeny].” Stuar-di’s brief, at 25. Stuardi insists that Vick’s Rule 56(f) affidavit does not state “what information the BSI [r]eports could provide, outside of identifying who injured [Powell],” and that it does not explain “how [such] information would shed necessary light on the State-agent immunity issue[ ],” which was the basis of her summary-judgment motion. Stuardi’s brief, at 25. According to Sawyer and Harris, Vick has failed “even to make a hypothetical argument” linking the information she purports to seek from the BSI reports to their State-agent-immunity defense. Joint brief of Sawyer and Harris, at 50. We agree.

State agents are “ ‘immune from civil liability’ ” in their personal capacities for negligence and wantonness, when the challenged conduct involves the exercise of judgment (1) in the administration of a government agency or department, including “ ‘allocating resources,’ ” and “ ‘hiring, firing, transferring, assigning, or supervising personnel’ or (2) in “ ‘the discharge of duties imposed by statute, rule, or regulation in ... counseling or releasing persons of unsound mind....’” Howard v. City of Atmore, 887 So.2d 201, 204-05 (Ala.2004) (quoting Cranman, 792 So.2d at 405). See also Giambrone v. Douglas, 874 So.2d 1046 (Ala.2003). Immunity also attaches to conduct involving the “ ‘formu-lat[ion of] plans [or] policies,’ ” and to conduct involving the discharge of governmental duties imposed “ ‘by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner.’ ” Howard, 887 So.2d at 204-05 (quoting Ex parte Cranman, 792 So.2d at 405).

It is uncontroverted that neither Sawyer nor Harris nor Stuardi was directly involved in Powell’s care or treatment. Harris and Stuardi testified by affidavit that their duties as directors of the Center were administrative, involving formulating plans and policies and exercising judgment in allocating resources, supervising employees, and implementing standards set by the Department. They both testified that there were no “detailed” rules, guidelines, or “checklists” with which they were required to comply. Similarly, Sawyer’s affidavit describes Sawyer as an executive official “exercising] discretion and judgment in allocating resources among the various facilities the [Department] operated,” and in “developing] plans, policies and procedures to ensure that the [Department] could discharge its ... mission.” She stated that “[t]here were no detailed checklists, guidelines or specific procedures” constraining her discretion.

The affidavits of Sawyer, Harris, and Stuardi set forth the quintessential elements of State-agent immunity. Indeed, Vick’s complaint alleges only that the defendants acted negligently in the exercise of their supervisory functions. Such aver-ments are prima facie contrary to well-established immunity principles.

As we have already pointed out, Vick’s only response to the summary-judgment motions is the argument presented in her Rule 56(f) motion, and repeated here, that she needs the BSI reports to ascertain the cause of Powell’s injuries on the four occasions made the basis of this action. Indeed, she argues that the discovery of “[h]ow or why these injuries occurred is still unknown to [Vick] and that is why this suit was filed.” Vick’s brief, at 12 (emphasis added). To be sure, she asked the trial court to conduct an in camera review of the BSI reports, but in doing so she stated only that it would “find the information discoverable.” (Emphasis added.) She did not apprise the court of the issue for which the information would be “discoverable.” Specifically, she did not suggest to the court what facts should be the focus of its in camera review, or how such facts would be relevant, Ex parte Alabama Department of Mental Health, 840 So.2d at 867, or “crucial,” McCullar, 687 So.2d at 161, to overcoming the defendants’ motions for a summary judgment based on their status as State agents.

In summary, Vick has failed to show that she is entitled to the reports, and, because she does not address the merits of the motions for a summary judgment, she has failed to show that the trial court erred in entering summary judgments for Sawyer, Harris, and Stuardi. Those judgments are, therefore, affirmed.

AFFIRMED.

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

      . Rule 56(f) provides:
      "Should it appear from the affidavits of a party opposing the [summary-judgment] motion that the party cannot, for reasons stated, present ... facts essential to justify the party's opposition, the court may deny the motion ... or may order a continuance to permit ... discovery to be had or may make such other order as is just.”

      . All of the claims against the Department were dismissed, pursuant to a joint motion of the parties, on May 5, 2005. Therefore, the Department is not involved in this appeal.


source: Caselaw Access Project

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

license: Public Domain

text:
    LPP MORTGAGE, LTD. v. Michael RUSSELL, Eron Russell, and Agnes Wambles.
    2030028.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2004.
    Rehearing Denied March 4, 2005.
    Certiorari Denied Feb. 10, 2006 Alabama Supreme Court 1040863.

      John T. Bender of McFadden, Lyon & Rouse, L.L.G., Mobile, for appellant.
    Larry R. Grissett, Opp, for appellees Michael Russell and Eron Russell.
    Debbie Lindsey Jared of Jared & Brun-son, Elba, for appellee Agnes Wambles.
   CRAWLEY, Judge.

LPP Mortgage, Ltd. (LPP), sued Michael Russell, Eron Russell, and Agnes Wambles alleging that they had breached personal guaranty agreements securing a promissory note executed in favor of the Small Business Administration (“the SBA”); the SBA had assigned the promissory note, a mortgage securing the promissory note, and the personal guaranty agreements to LPP mortgage. LPP Mortgage moved for a judgment as a matter of law (“JML”) both at the close of its ease-in-chief and at the close of all the evidence. Both motions were denied. The jury returned a verdict in favor of all the defendants. The trial court entered a judgment based on that verdict. LPP Mortgage timely appealed the trial court’s denial of its motions for a JML. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala. Code 1975.

Our supreme court has stated:

‘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 a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). For actions filed after June 11, 1987, the nonmovant must present ‘substantial evidence’ in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; 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 nonmov-ant and entertains such reasonable inferences as the jury would have been free to draw. Motion Industries, Inc. v. Pate, 678 So.2d 724 (Ala.1996). Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).”

Delchamps, Inc. v. Bryant, 738 So.2d 824, 830-31 (Ala.1999).

When the terms of a contract are unambiguous, the construction of the contract is a question of law for the court. Colonial Bank of Alabama v. Coker, 482 So.2d 286 (Ala.1985). Although LPP Mortgage made no postverdict motion pursuant to Rule 59, Ala. R. Civ. P., we may nonetheless review the trial court’s denial of LPP Mortgage’s motions for a JML because “repeated adverse rulings on pure questions of law are not ordinarily required for appellate review of those same issues.” Barnes v. Dale, 530 So.2d 770, 777 (Ala.1988).

The record reveals the following facts. Russell Cash and Carry, Inc., borrowed $111,000 from the SBA. Michael Russell, as president of Russell Cash and Carry, Inc., executed a promissory note in favor of the SBA on May 24, 1990. Subsequently, to guarantee payment of the promissory note, Michael Russell and Eron Russell granted the SBA a mortgage on real property they owned in Coffee County and they executed a personal guaranty agreement. The personal guaranty agreement provided:

“The Undersigned [Michael Russell and Eron Russell] hereby grant[ ] to Lender [the SBA] full power, in its uncontrolled discretion and without notice to the undersigned, but subject to the provisions of any agreement between the Debtor [Russell Cash and Carry, Inc.] or any other party and Lender at the time in force, to deal in any manner with the Liabilities and the collateral, including, but without limiting the generality of the foregoing, the following powers:
“(a) To modify or otherwise change any terms of all or any part of the Liabilities or the rate of interest thereon (but not to increase the principal amount of the note of the Debtor to the Lender), to grant any extension or renewal thereof and any other indulgence with respect thereto, and to effect any release, compromise or settlement with respect thereto.
“(b) To enter into any agreement of forbearance with respect to all or any part of the Liabilities, or with respect to all or any part of the collateral, and to change the terms of any such agreement.”

In 1993, the Russells sold the business to Elba Cash and Carry, Inc., Kenneth Grantham, and Raymond Rice. As part of the purchase of the business, an assumption-of-liability agreement was signed by Grantham, individually and as president of Elba Cash and Carry, Inc.; by Rice, individually; and by Agnes Wambles, Grant-ham’s mother. Pursuant to the assumption of liability agreement, Elba Cash and Carry, Inc., Grantham, and Rice assumed the outstanding indebtedness owed under the promissory note and acquired the Russell’s interests in the real property securing the promissory note, subject to the mortgage in favor of the SBA. Contemporaneously with the assumption-of-liability agreement, Wambles signed a personal guaranty agreement, with the same provisions as the one signed by the Russells, in favor of the SBA.

Elba Cash and Carry, Inc., and Grant-ham subsequently sought to borrow $425,000 from Covington County Bank. Rice was no longer involved in the business. The SBA was to be a minority participant in that loan, providing 15% of the funds. However, Covington County Bank would agree to the loan only if Elba Cash and Carry, Inc., and Grantham would execute a mortgage in favor of Covington Bank on the real property securing the promissory note in favor of the SBA and the SBA would agree to subordinate its mortgage to the mortgage in favor of Cov-ington County Bank. Neither the Russells nor Wambles was notified of the subordination agreement.

Elba Cash and Carry, Inc., and Grant-ham defaulted on the loans from Coving-ton County Bank and the SBA. The bank foreclosed on the property, purchased the property at auction, and subsequently sold it to a third party. The proceeds from the sale were not sufficient to pay off the debt secured by the mortgage to Coving-ton County Bank, much less the outstanding debt owed to the SBA under its promissory note and mortgage. After the foreclosure and sale, the SBA assigned the promissory note, mortgage, and personal guaranty agreements to LPP Mortgage. The assignment included:

“such other documents, agreements, instruments and other collateral that evidence, secure or otherwise relate to Assignor’s right, title, or interest in and to the MORTGAGE and/or the Note...

LPP Mortgage sued the Russells and Wambles in an attempt to collect on the debt owed under the promissory note and their personal guaranty. The jury, however, returned a verdict in favor of the Rus-sells and Wambles. The trial court entered a judgment on the jury’s verdict. LPP Mortgage argues that the trial court erred in denying its motions for a JML. We agree; therefore, we reverse the judgment of the trial court.

“[T]he consent of the mortgagor is unnecessary to effect a change in the order of priority as between a mortgagee and the holder of any other outstanding interest in the property, such as another mortgagee, a lessee, or a lienholder.”

Oakes v. Michigan Oil Co., 476 So.2d 618, 622 (Ala.1985). Furthermore, the personal guaranty agreements signed by the Rus-sells and Wambles specifically authorize the SBA “to deal in any manner with the Liabilities and the collateral” and “to grant any extension or renewal thereof and any other indulgence with respect thereto” without notice. The SBA, pursuant to those provisions, subordinated the mortgage in favor of the SBA to the mortgage in favor of Covington County Bank.

The Russells and Wambles voluntarily entered into the guaranty agreements. We recognize that had the priority of the mortgage in favor of the SBA not been subordinated, the Russells and Wambles would be in a far superior financial position to the one they are in now. Absent the subordination agreement, the debt to the SBA that the Russells and Wambles personally guaranteed would have been satisfied first out of the foreclosure sale. However, the principal amount that the Russells and Wambles personally guaranteed has not been increased, and they must now face the legal consequences of having failed to repay the indebtedness covered by their guaranty agreements. See Graydon v. Colonial Bank-Gulf Coast Region, 597 So.2d 1345 (Ala.1992); Oakes v. Michigan Oil Co., 476 So.2d 618, 622 (Ala.1985).

REVERSED and REMANDED.

MURDOCK, J., concurs in the result, with writing, which THOMPSON and PITTMAN, JJ., join.

YATES, P. J., dissents, with writing.

MURDOCK, Judge,

concurring in the result.

In contrast to the view expressed in the dissenting opinion, I cannot construe the portion of the guaranty agreements relied upon in that dissenting opinion as applicable to this case. That provision makes it clear that the guarantor does not grant the lender the power to “increase the principal amount” of the guaranteed debt. I agree with the main opinion that that is not what has been done in this case.

However, I cannot fully agree with all of the reasoning in the main opinion. Among other things, that opinion relies upon the principle that the “ ‘consent of the mortgagor is unnecessary to effect a change in the order of priority as between a mortgagee and the holder of any other outstanding interest in the property, such as another mortgagee, a lessee, or a lienholder.’ ” 936 So.2d at 527 (quoting Oakes v. Michigan Oil Co., 476 So.2d 618, 622 (Ala.1985)). While this principle may be true enough, I do not see that it has any bearing on the outcome of the present case. It is not as mortgagors that the Russells (who conveyed their ownership interest in the subject real property to Grantham and Elba Cash & Carry, and did not hold the status of mortgagor at the time the SBA agreed to subordinate its interest as mortgagee of that real property) and Wambles (who never was a mortgagor) were allegedly injured by the SBA’s agreement to subordinate their mortgage in the real property. Instead, it is in their capacity as guarantors that the Russells and Wam-bles have suffered injury, under the theory they assert. Their asserted injury does not derive from a diminution in some interest in mortgaged real property due to Covington County Bank having a right to foreclose on that real property ahead of LPP (the SBA’s successor in interest), rather than vice versa. Instead, the injury, if any, both to the Russells and to Wambles would derive from the fact that, as guarantors, they have been called upon to pay more to LPP than they would have been called upon to pay if the real property had been available to LPP under a “first mortgage” and LPP had chosen to collect all or part of the subject debt by foreclosing on that real property.

I concur in the result reached by the main opinion because the claims of the Russells and Wambles are very simply and straightforwardly met by the following provisions of the guaranty agreements that the Russells and Wambles signed and that define the nature of their guaranty obligation:

“The Undersigned waives any notice of the incurring by the Debtor at any time of any of the Liabilities, and waives any and all presentment, demand, protest or notice of dishonor, nonpayment, or other default with respect to any of the Liabilities and any obligation of any party at any time comprised in the collateral. The undersigned hereby grants to Lender full power, in its uncontrolled discretion and without notice to the undersigned, but subject to the provisions of any agreement between the Debtor or any other party and Lender at the time in force, to deal in any manner with the Liabilities and the collateral, including, but without limiting the generality of the foregoing, the following powers:
“(b) To enter into any agreement or forbearance with respect to all or any part of the Liabilities, or with respect to all or any part of the collateral, and to change the terms of any such agreement;
“(d) To consent to the substitution, exchange, or release of all or any part of the collateral, whether or not the collateral, if any, received by Lender upon any such substitution, exchange, or release shall be of the same or of a different character or value than the collateral surrendered by Lender;
“In case the Debtor shall fail to pay all or any part of the Liabilities when due, whether by acceleration or otherwise, according to the terms of said note, the Undersigned, immediately upon the written demand of Lender, will pay to Lender the amount due and unpaid by the Debtor as aforesaid, in like manner as if such amount constituted the direct and primary obligation of the Undersigned. Lender shall not be required, prior to any such demand on, or payment by, the Undersigned, to make any demand upon or pursue or exhaust any of its rights or remedies against the Debtor or others with respect to the payment of any of the Liabilities, or to pursue or exhaust any of its rights or remedies with respect to any part of the collateral.”

THOMPSON and PITTMAN, JJ., concur.

YATES, Presiding Judge,

dissenting.

Because I would affirm the judgment entered on the jury’s verdict in this case, I must respectfully dissent.

The personal guaranty agreements signed by the Russells and Wambles provide:

“The Undersigned hereby grants to Lender full power, in its uncontrolled discretion and without notice to the undersigned, but subject to the provisions of any agreement between the Debtor or any other party and Lender at the time in force, to deal in any manner with the Liabilities and the collateral, including, but without limiting the generality of the foregoing, the following powers:
“(a) To modify or otherwise change any terms of all or any part of the Liabilities or the rate of interest thereon (but not to increase the principal amount of the note of the Debtor to the Lender), to grant any extension or renewal thereof and any other indulgence with respect thereto, and to effect any release, compromise or settlement with respect thereto.”

The principal amount of the promissory note for which the Russells guaranteed payment was $111,000. The balance owed on that promissory note at the time the assumption-of-liability agreement was executed by Grantham, Rice, and Wambles was $93,190.40. Wambles executed a personal guaranty agreement for that amount.

Grantham and Elba Cash and Carry, Inc., borrowed $425,000 from Covington County Bank. The SBA agreed to subordinate the first mortgage executed by the Russells to the mortgage executed by Grantham, on behalf of himself and as president of Elba Cash and Carry, Inc. I believe that the principal amount for which the Russells and Wambles were responsible, pursuant to their guaranty agreements, substantially increased in violation of the language contained in the personal guaranty agreements.

      . This case was originally assigned to another judge on the Court of Civil Appeals. It was reassigned to Judge Crawley on November 18, 2004.

      . The appellant does not address the subject of redemption.


author: PITTMAN, Judge.

text:
    BROOKWOOD HEALTH SERVICES, INC., d/b/a Brookwood Medical Center v. BAPTIST HEALTH SYSTEM, INC., d/b/a Shelby Baptist Medical Center. Alabama State Health Planning and Development Agency v. Baptist Health System, Inc., d/b/a Shelby Baptist Medical Center.
    2031014 and 2031015.
    Court of Civil Appeals of Alabama.
    June 30, 2005.
    Rehearing Denied Nov. 18, 2005.

      John T. Mooresmith, John C. Morrow, and F.A. Flowers III of Burr & Forman, LLP, Birmingham, for appellant Brook-wood Health Services, Inc., d/b/a Brook-wood Medical Center.
    Mark D. Wilkerson and Dana H. Bill-ingsley of Wilkerson & Bryan, P.C., Montgomery, for appellant State Health Planning and Development Agency.
    M. Ann Huckstep and Laurence J. McDuff of Adams & Reese/Lange Simpson, LLP, Birmingham; Fournier J. Gale III and Stephen W. Still of Maynard, Cooper & Gale, P.C., Birmingham; Frank C. Ellis, Jr., of Wallace, Ellis, Fowler & Head, Columbiana; and Hewitt L. Conwill of Conwill & Justice, Columbiana, for ap-pellee.
   PITTMAN, Judge.

This appeal concerns the propriety of an administrative order denying authority to a hospital to operate a cardiac-surgery center.

On August 28, 2000, Baptist Health System, Inc. (“Baptist”), which operates Shelby Baptist Medical Center (“Shelby Baptist”) in Alabaster, filed an application with Alabama’s State Health Planning and Development Agency (“SHPDA”) seeking a Certificate of need (“CON”) permitting Baptist to offer therapeutic cardiac cathet-erization and open-heart surgery at Shelby Baptist. Brookwood Health Services, Inc., which operates Brookwood Medical Center (“Brookwood”) in southern Jefferson County, sought to intervene and requested a contested-case hearing (see § 41-22-12, Ala.Code 1975); after Brookwood was permitted to intervene, a hearing was conducted before an administrative law judge (“ALJ”).

After that hearing, the ALJ issued a 24-page document containing recommended findings of fact and conclusions of law on March 6, 2002; in that document, the ALJ opined that SHPDA’s Certificate of Need Review Board (“CONRB”) should approve the Shelby Baptist CON application. However, upon review of the ALJ’s recommendations, SHPDA’s CONRB issued an order on May 2, 2002, denying the CON application. In pertinent part, the CONRB’s order contained the following determinations:

“After careful review of the record, the Recommended Order and the exceptions thereto, the [CONRB] has determined that the ALJ reached the wrong conclusions in applying the applicable review criteria to his factual findings. In so doing, the CON[RB] is not rejecting the ALJ’s Recommended Findings of Fact, which are hereby adopted to the extent the same are not inconsistent with this Order.
“... Ala. Admin. Code [r.] 410-1-2.03 states that ‘in the absence of a designated geographical service area for a particular service, the county in which the service is to be provided shall be deemed to be the health service area.’ Ala. Admin. Code [r.] 410-2-3-03(3) addresses open-heart surgery[;] however, this particular subsection of the State Health Plan (SHP) does not designate a specific health service area. For this reason, the ALJ found that the ‘health service area’ in [this case] was Shelby County, where the services proposed are to be provided. Planning Policy 3 requires that ‘There shall be no additional adult open heart units initiated unless each existing unit in the health service area is operating and is expected to continue to operate at a minimum of 350 adult open heart operations per year.’ Id. (emphasis added). Since there were no other open-heart providers in Shelby County, the [ALJ] found that the application was consistent with the guideline contained in Planning Policy 3.
“... In other instances, the SHP and the SHPDA Rules refer generally to a provider’s ‘service area’ as opposed to the defined term ‘health service area’. In [a 1998 order issued in another contested case], the [CONRB] found that while SHPDA rules arguably provide that the ‘health service area’ for purposes of Planning Policy 3 should be limited to the county in which the service is provided, other statutes and regulations give the [CONRB] the right to consider the impact of the project on providers outside of the county. In upholding this finding, the Fair Hearing Officer stated:
“ ‘The [CONRB] correctly recognized that while the “health service area” mentioned in Planning Policy 3 may, according to [r.] 410-1-2-.03 of the SHPDA Rules, pertain to Calhoun County, the consideration of the impact on Birmingham open heart surgery programs is required under [r.] 410 — 1—[6—].06(l)(e) which states in pertinent part:
“ ‘ “When the service area of the proposed facility or service overlaps the service of an existing facility or service, then the effect on the existing service or facility ... shall be considered.” ’
“... Ala.Code [1975,] § 22-21-266(3) ... requires a finding that ‘existing inpatient facilities providing inpatient services similar to those proposed are being used in an appropriate and efficient manner consistent with community demands for services,’ ie., there must be a community need for the proposed service. Such a conclusion must be made prior to the approval of any new inpatient facilities or services. Id.
“... The [CONRB] finds, as a matter of law, that it may consider the impact of the Shelby Baptist proposal on Brook-wood and similarly situated facilities, the manner in which such facilities are currently available to serve the needs of the patients in Shelby Baptist’s proposed service area, and the quality of service provided by such high volume, established sites to area residents.2 Taking these factors into consideration, the [CONRB] differs with the conclusions reached by the [ALJ] as to need and finds that the project should be denied.”
“⅛ contrast, Ala. Admin. Code [r.] 410-2-3-03(1) which addresses cardiac catheterization services specifically mentions counties in its planning policies.
“2 The [CONRB] notes that Shelby County considers the patient base of the proposed facility to extend beyond Shelby County.”

Because the CONRB’s order was issued after the application had already been considered by an ALJ as a contested case, and because reconsideration of the CONRB’s decision was not sought, the denial of the application by the CONRB constituted the “final order” of SHPDA under Ala.Code 1975, § 22-21-275(14), as amended in 1998.

Baptist sought judicial review in the Shelby Circuit Court of SHPDA’s denial of the CON application; Brookwood was permitted to appear in those review proceedings as an intervenor. After all of the judges of the circuit court had recused themselves, the Chief Justice of the Alabama Supreme Court appointed a judge from another circuit to decide the case. On July 13, 2004, the circuit court entered a judgment reversing the denial of the Shelby Baptist CON application and directing SHPDA to issue the requested CON. The circuit court’s judgment of reversal was based upon three stated grounds: (1) the CONRB’s alleged failure to articulate the standards it utilized in determining that the CON application was due to be denied; (2) the CONRB’s alleged failure to apply the same standards utilized in approving CON applications pertaining to open-heart services in four other counties; and (3) the CONRB’s alleged failure to sufficiently justify rejecting the findings and recommendations of the ALJ. Both SHPDA and Brookwood appealed from the judgment of the circuit court.

We set forth at length the applicable principles of review in Colonial Management Group, L.P. v. State Health Planning & Development Agency, 853 So.2d 972, 974-75 (Ala.Civ.App.2002):

“This court reviews a trial court’s judgment regarding the decision of an administrative agency ‘without any presumption of its correctness, since the [trial court] was in no better position to review the [agency’s decision] than’ this court. Under the Alabama Administrative Procedure Act (‘AAPA’), § 41-22-1 et seq., Aa.Code 1975, which governs judicial review of agency decisions,
“ ‘[e]xcept where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence or for further proceedings. The court may reverse or modify the decision or grant other appropriate relief from the agency action, equitable or legal, including declaratory relief, if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
“ ‘(1) In violation of constitutional or statutory provisions;
“ ‘(2) In excess of the statutory authority of the agency;
“ ‘(3) In violation of any pertinent agency rule;
“ ‘(4) Made upon unlawful procedure;
“ ‘(5) Affected by other error of law;
“ ‘(6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
“ ‘(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.’
“ § 41-22-20(k), Ala.Code 1975 (emphasis added [in Colonial Management ]). In reviewing the decision of a state administrative agency, ‘[t]he special competence of the agency lends great weight to its decision, and that decision must be affirmed, unless it is arbitrary and capricious or not made in compliance with applicable law.’ ‘The weight or importance assigned to any given piece of evidence presented in a CON application is left primarily to the [CONRB’s] discretion, in light of the [CONRB’s] recognized expertise in dealing with these specialized areas.’ Neither this court nor the trial court may substitute its judgment for that of the administrative agency. ‘This holds true even in cases where the testimony is generalized, the evidence is meager, and reasonable minds might differ as to the correct result.’ Further, ‘an agency’s interpretation of its own rule or regulation must stand if it is reasonable, even though it may not appear as reasonable as some other interpretation.’ ”

853 So.2d at 974-75 (citations omitted). See also State Health Planning & Dev. Agency v. Baptist Health Sys., Inc., 766 So.2d 176 (Ala.Civ.App.1999), and State Health Planning Agency v. Mobile Infirmary Ass’n, 608 So.2d 1372 (Ala.Civ.App.1992).

Mindful of that deferential standard of review, we now turn to whether the three grounds cited by the circuit court support the reversal of the CONRB’s decision. We first consider whether CONRB did not adequately articulate the standards it utilized in denying Shelby Baptist’s CON application. The benchmark by which a reviewing court is to judge the sufficiency of an agency’s statement of its reasons for acting in a particular manner in a contested case is that established by the Alabama Supreme Court in Ex parte Nursing Home of Dothan, Inc., 542 So.2d 940, 945 (Ala.1989): whether a party has been “constructively apprised of the reasons” for a particular decision by virtue of express findings in an administrative order or evidence presented during the contested-case hearing. Accord, Montgomery Rehab. Hosp. v. State Health Planning Agency, 610 So.2d 403, 409 (Ala.Civ.App.1992). As the Supreme Court aptly stated in Nursing Home of Dothan, “[w]e do not expect the technical precision from non-lawyer administrative boards that is expected of judges in the drafting of judgments and orders.” 542 So.2d at 945.

Ala. Admin. Code, r. 410-1-6-05(1), states that before approval of a proposed health-care project can be granted, a “determination of a substantially unmet public requirement for the proposed health care facility, service, or capital expenditure” must be made. In his proposed findings of fact and conclusions of law, the ALJ isolated the issue of community need for open-heart services as the “major focal point of disagreement” between Shelby Baptist and Brookwood. For his part, the ALJ analyzed the community-need issue based upon analysis of whether Shelby County, which he deemed to be the pertinent “health service area,” needed an indigenous open-heart surgery provider. In doing so, the ALJ made a number of determinations that were intermediate to his recommended conclusion that the CON be granted, including that no more effective alternatives to the proposed Shelby Baptist facility existed and that Shelby Baptist’s proposal was consistent with the most recent State Health Plan (“SHP”). However, the CONRB implicitly rejected those intermediate determinations, as well as the ALJ’s ultimate conclusion of need. The CONRB’s order reveals that its rejection of the ALJ’s determinations was based upon express determinations that it could “consider the impact of the Shelby Baptist proposal on Brookwood and similarly situated facilities,” as well as “the manner in which stick facilities are currently available to serve the needs of the patients in Shelby Baptist’s proposed service area” and “the quality of service provided by such high volume, established sites to area residents” (emphasis added).

Clearly, from the face of its order, the CONRB indicated that it had weighed the potential effect of granting Shelby Baptist’s CON application on Brookwood and other Jefferson County-based open-heart-surgery facilities more heavily than did the ALJ. In doing so, the CONRB could also have weighed certain aspects of the evidence adduced at the administrative hearing in a manner different from the ALJ. For example, while the ALJ, in his recommended findings of fact and conclusions of law, cited demographic evidence indicating that Shelby County’s overall population and its population over the age of 45 years had increased dramatically in recent years, other evidence adduced at the hearing tended to show that overall demand for open-heart surgery at Jefferson County’s then-existing 21 open-heart operating rooms, including Baptist’s programs at Montclair and Princeton, had declined by 11% despite that increase in population, a decline attributable partly to a higher incidence of cardiac catheterization and stenting procedures. Evidence was also adduced at the administrative hearing indicating that, as a general rule, the level of a medical provider’s open-heart-surgery caseload (whether a surgeon or a facility) is directly related to the likelihood of a positive surgical outcome for a patient served by that medical provider, and the logical inference could have been drawn that approval of a new open-heart-surgery facility in the vicinity of seven existing such facilities would reduce the aggregate quality of cardiac care.

We conclude that the decision of the CONRB, in light of the administrative record and the statements contained in the CONRB’s order, constructively apprised Shelby Baptist of the reasons why its CON application was denied. The circuit court, therefore, erred in sustaining Shelby Baptist’s challenge to the CONRB’s decision based upon that ground.

We next consider the circuit court’s conclusion that the CONRB failed to sufficiently justify rejecting the findings and recommendations of the ALJ. In Forest Manor, Inc. v. State Health Planning & Development Agency, 723 So.2d 75 (Ala.Civ.App.1998), a majority of this court intimated that where an administrative agency rejects findings made by a designated hearing officer, the agency’s decision must be based upon stronger supporting evidence than in cases where those findings are accepted. However, in Colonial Management, supra, this court “rethought” that absolute rule, acknowledging that while some deference to the findings of an agency’s hearing officer is due when there is conflicting testimony and witness demeanor is material, “many CONRB decisions involve an analysis of statistical and demographic data that is unaffected by an assessment of witness credibility and demeanor.” 853 So.2d at 976. Indeed, this court went so far as to adopt a statement from the dissenting opinion in Forest Man- or to the effect that “ ‘the ALJ’s recommendation is not a binding order on the parties, and the SHPDA regulations do not require that the CONRB give any deference to an ALJ’s recommendation.’ ” 853 So.2d at 976 (emphasis added; quoting Forest Manor, 723 So.2d at 82 (Crawley, J., dissenting, joined by Thompson, J.)).

In light of the principles espoused in Colonial Management, we must conclude that the circuit court erred in requiring the CONRB to justify its rejection of the ALJ’s recommendation to grant Shelby Baptist’s CON application. The ALJ’s recommended findings of fact and conclusions of law, although somewhat detailed, contain no indication that the ALJ’s determinations were in any way based upon the credibility or lack of credibility of- any witness. Rather, the parties to the contested case principally argued the merits of their positions based upon statistical tendencies and demographic data — evidence whose nature places it plainly outside the scope of what remains of the Forest Manor “stronger-supporting-evidence” rule.

The final ground of reversal stated by the circuit court in its judgment is that the CONRB’s decision is arbitrary because the CONRB purportedly failed to apply the same standards to Shelby Baptist’s application that the CONRB utilized in approving CON applications pertaining to open-heart services in four other counties. As to that basis of reversal, we note that our Supreme Court has recognized that consistency in administrative rulings is “essential” and that “[t]o act in one manner in one case and the opposite manner in another case, where the circumstances are the same in all material respects, would be to act arbitrarily or, at best, unreasonably.” Mobile County Gas Dist. v. Mobile Gas Serv. Corp., 284 Ala. 664, 671, 227 So.2d 565, 571 (1969) (emphasis added). However, in the same case, our Supreme Court quoted WOKO, Inc. v. FCC, 153 F.2d 623, 631 (D.C.Cir.), rev’d on other grounds, FCC v. WOKO, Inc., 329 U.S. 223, 67 S.Ct. 213, 91 L.Ed. 204 (1946), for the proposition that the doctrine of stare decisis does not apply to administrative decisions. 284 Ala. at 671, 227 So.2d at 571; accord, Ex parte Shelby Med. Ctr., Inc., 564 So.2d 63, 68 (Ala.1990) (“Because there is need for flexibility in administrative decisionmaking, the doctrine of stare decisis generally does not bind administrative agencies to their prior decisions.”).

Shelby Baptist, both in the circuit court and in this court, has contended that the denial of its CON application is wholly inconsistent with SHPDA’s actions in granting open-heart CON applications submitted by providers in five other counties. The record on appeal contains only two of the five CONRB orders upon which Shelby Baptist has based its arbitrariness argument (and only two of the four CONRB orders cited by the circuit court), and we are therefore constrained to limit our inquiry as to this issue to the circumstances of those two orders that appear in the record. See Ex parte Shelby Med. Ctr., Inc., 564 So.2d at 68 (holding that where the evidence presented to the CONRB by prior applicants was not in the record on appeal, the record was “insufficient” to determine whether the CONRB had acted arbitrarily).

An examination of the particular circumstances of those two CON applications, to the extent that the record allows this court to compare those dispositions, does not conclusively demonstrate that the circumstances in those cases are “the same in all material respects” as those present here. One of the allegedly inconsistent orders involved a CON application where the intervening opponents of the application were a “joint program” subject to a smaller minimum open-heart operation load requirement specified in a different SHPDA regulation. The CONRB’s order in that case further cited evidence that the applicant (unlike Shelby Baptist) had lost half of its cardiology practitioners because of the lack of an open-heart program and had experienced difficulties recruiting replacement physicians. In the second ostensibly “comparable” CON case, the CONRB’s order granting the requested CON expressly relied upon the lack of opposition from any other provider of open-heart services claiming that the proposal in that case would have an adverse impact upon any existing provider of the proposed services, whether in or out o/the applicant’s county. Consideration of that factor mirrors the CONRB’s approach in this case, which was to consider the potential effects upon nearby out-of-county open-heart-surgery providers such as Brookwood that would result from granting Shelby Baptist’s CON application.

Shelby Baptist claims that the CONRB’s order denying its CON application in this case is also inconsistent with three additional CONRB orders. However, Shelby Baptist’s appellate brief cites only to a portion of one of the two CONRB orders appearing in the record and to testimony of one of its witnesses at the administrative hearing as substantiating that claim. That evidence does not approach the level of sufficiency set forth in Ex parte Shelby Medical Center, Inc., supra, that would allow a reviewing court to compare, in any thorough and reasoned manner, the circumstances in those cases with those present in this case, and the circuit court plainly erred in basing its conclusion of arbitrariness upon those decisions.

Whether to grant a requested CON in one case and to deny a requested CON in another, allegedly similar, case falls squarely within the discretion of the CONRB, as our holding in State Health Planning Agency v. Mobile Infirmary Ass’n, 608 So.2d 1372 (Ala.Civ.App.1992), demonstrates:

“The trial court held that SHPA’s [i.e., the State Health Planning Agency’s] refusal to grant a CON to Mobile Infirmary was ‘arbitrary and capricious’ in part because SHPA had earlier granted [another hospital’s] CON application for a cath lab, despite that hospital’s lack of a heart-surgery unit, although the [SHP] recommends that as a prerequisite. While recognizing the discrepancy, we are not prepared to say that this was ‘arbitrary and capricious’ on SHPA’s part. The [SHP] guidelines are merely a set of criteria used in processing applications and SHPA is entitled to exercise its discretion in following these guidelines. SHPA weighed the factors and granted a CON for a cath lab to [the other hospital], despite its lack of a heart-surgery unit. Review of that determination was not before the trial court, nor is it before this court in this case. Neither this court nor the circuit court may substitute its judgment for that of the administrative agency.”

608 So.2d at 1374-75 (citations omitted). We conclude that the CONRB’s denial of Shelby Baptist’s CON application based upon concerns that other open-heart-surgery providers in the nearby area would be adversely affected was not arbitrary or capricious, and the circuit court erred in entering its judgment to the contrary.

Based upon the foregoing facts and authorities, we conclude that the circuit court erred in reversing the order of the CONRB denying Shelby Baptist’s CON application and that its judgment is due to be reversed and the cause remanded. However, in so doing, we note that the regulatory background upon which the CONRB acted has been substantially altered during the pendency of SHPDA’s and Brookwood’s appeals. On October 18, 2004, SHPDA adopted an amendment to the SHP substantially altering “Planning Policy 3” relied upon by the CONRB in the order under review; that policy now reads:

“There shall be no additional adult open heart units initiated unless each existing unit in the county is operating and is expected to continue to operate at a minimum of 350 adult operations per year; provided, that to insure availability and accessibility, one adult open heart unit shall be deemed needed in each county not having an open heart surgery unit in which the current population estimate (as published from time to time by the Center for Business and Economic Research, University of Alabama) exceeds 150,000 without consideration of other facilities, wherever located.”

Ala. Admin. Code, r. 410-2-3-.03(2)(b)3. (emphasis added). We have not considered the effect, if any, of that amendment in deciding these appeals.

REVERSED AND REMANDED.

CRAWLEY, P.J., and BRYAN, J., concur.

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

MURDOCK, J., dissents, without writing.

      . Under § 22-21-275(14) before its 1998 amendment, decisions of the CONRB were customarily subject to another layer of administrative review under which a “fair hearing officer” ("FHO”) would consider the propriety of the CONRB's decision in a particular case; the decision of the FHO, not the CONRB, was then deemed to be the final decision of SHPDA. E.g., Forest Manor, Inc. v. State Health Planning & Dev. Agency, 723 So.2d 75, 79-80 (Ala.Civ.App.1998). However, as we noted in Colonial Management Group, L.P. v. State Health Planning & Development Agency, 853 So.2d 972, 976 (Ala.Civ.App.2002), "[u]nder the current statutory provisions, if a party does not seek a fair hearing before it appeals the CONRB's decision to the circuit court,” or if such a hearing may not be properly sought because an ALJ has already conducted a contested-case hearing, "the CONRB’s decision becomes the final decision of SHPDA.”

      . Although the SHP states that in order "to prevent duplication of existing resources which may not be fully utilized, the opening of new open heart surgery units should be contingent upon existing units operating, and continuing to operate, at a level of at least 350 operations per year” (Ala.Admin.Code, r. 410-2-3-.03(2)(a)4.), evidence was adduced at the administrative hearing indicating that one of the seven Jefferson County open-heart-surgery facilities had performed no more than 305 such operations in any year between 1995 and 2000 and that a second facility had seen its operations per year decline from 620 to 409 during that period.

      . In reversing the appellate court's judgment in WOKO, the United States Supreme Court held that the administrative agency in that case was not bound "to deal with all cases at all times as it has dealt with some that seem comparable.” 329 U.S. at 228, 67 S.Ct. 213.

      . "In some areas, open-heart surgical teams, including surgeons and specialized technologists, are utilizing more than one institution. For these institutions, the guidelines may be applied to the combined number of open-heart operations performed by the surgical team where an adjustment is justifiable and promotes more cost-effective use of available facilities and support personnel. In such cases, in order to maintain quality care, a minimum of 75 open-heart operations in any institution is advisable.” Ala. Admin.Code, r. 410-2-3-.03(2)(a)6.


author:
PER CURIAM.
      MURDOCK, Judge, PITTMAN, Judge,

text:
    Kassi Ray CRAVENS v. Chad Michael CRAVENS.
    2040004.
    Court of Civil Appeals of Alabama.
    Sept. 9, 2005.
    Rehearing Denied Dec. 16, 2005.
    Certiorari Denied Feb. 10, 2006 Alabama Supreme Court 1050382.

      Christopher G. McCary of Legal Services Alabama, Inc., Anniston, for appellant.
    Shannon L. Millican, Gadsden, for appel-lee.
   PER CURIAM.

Kassi Ray Cravens (“the wife”) appeals from a judgment entered by the Calhoun Circuit Court in which it declined to hold that DNA evidence rebutted the presumption that her former husband Chad Michael Cravens (“the husband”) is the father of Jon Michael Cravens (“the child”), who was born during the marriage of the wife and the husband.

The parties were married in August 2000. Thereafter, the wife gave birth to the child in October 2000. In December 2003, the husband sued the wife for a divorce on the grounds of an irretrievable breakdown of the marriage and incompatibility. Among other things, he sought pendente lite and permanent legal custody of the child. The trial court granted the husband pendente lite custody. Answering the complaint, the wife denied that the husband is the biological father of the child. She also counterclaimed for custody of the child. Contemporaneously, the wife moved the trial court for a DNA test. The husband objected to the wife’s motion on the grounds (1) that he was the biological father of the child and (2) that the child was born during the marriage. However, the trial court granted the wife's motion, and the husband gave a DNA sample for testing.

On May 5, 2004, the trial court held a hearing at which it received evidence ore tenus. The DNA test results, which were admitted by agreement of the parties, excluded the husband as the biological father of the child. However, despite the DNA test results the husband asserted that he was the legal father of the child. The wife admitted that the husband is a good father and that it would not be in the best interest of the child to sever the husband's relationship with the child. Furthermore, the wife testified that she had not previously filed a paternity action because the alleged biological father did not want to have a relationship with the child. At the close of the evidence, the trial court ordered the wife and the husband to alternate custody on a weekly basis until the trial court entered a final judgment.

On June 9, 2004, the trial court entered a final judgment divorcing the husband and the wife and awarding them joint legal and physical custody of the child. Noting that, because the child was born during the marriage, the husband was presumed to be the father of the child under Alabama statutory law, the trial court declined to hold that the DNA evidence had rebutted that presumption. The wife timely appealed.

On appeal, the wife argues that the trial court erred in declining to hold that the DNA evidence rebutted the statutory presumption that the husband was the father of the child. Specifically, she argues that she has standing to challenge the husband’s paternity because, she says, she raised the issue during the divorce action. She further argues that her right to custody is superior to the husband’s because, she says, a parent’s right to custody is superior to that of a nonparent.

The Alabama Uniform Parentage Act (“the AUPA”), codified at § 26-17-1 et seq., Ala.Code 1975, establishes statutory criteria for determining the paternity of a child. In pertinent part, § 26 — 17—5(a)(1) states:

“A man is presumed to be the natural father of a child if any of the following apply:
“(1) He and the child’s natural mother are or have been married to each other and the child is born during the marriage,.... ”

(Emphasis added.) Furthermore, § 26-17-6(a) states:

“A child, a child’s natural mother, or a man presumed to be the child’s father under subdivision (1), (2), or (3) of Section 26-17-5(a), may bring an action at any time for the purpose of declaring the existence of the father and child relationship presumed under subdivision (1), (2), or (3) of Section 26-17-5(a), but for purposes of support, the action shall be brought before the child reaches the age of 19.”

(Emphasis added.)

In Ex parte C.A.P., 683 So.2d 1010 (Ala.1996), the Alabama Supreme Court held that an alleged biological father did not have standing to challenge a child’s paternity where the presumed father persistently asserted his parental status. In Ex parte C.A.P., a man claiming to be the biological father of a child who was born while the mother was married to someone else sought to establish his paternity. The Alabama Supreme Court stated:

“ ‘[T]he legal question is whether a man has standing to bring an action seeking to declare a child illegitimate and to have himself declared the father of that child. This is not permitted under the [AUPA], as long as there is a presumed father, pursuant to § 26-17-5(a)(1), who has not disclaimed his status as the child’s father; consequently, another man ... has no standing to challenge the presumed paternity of that child. Put another way, so long as the presumed father persists in maintaining his parental status, not even the subsequent marriage of the child’s mother to another man can create standing in the other man to challenge the presumed father’s parental relationship.’ ”

Ex parte C.A.P., 683 So.2d at 1011-12 (quoting Ex parte Presse, 554 So.2d 406, 418 (Ala.1989)) (emphasis added). In Ex parte C.A.P., the supreme court further stated that an unwed father’s interest in establishing paternity is outweighed by “the obvious objectives of the Alabama Uniform Parentage Act, which are to provide for the psychological stability and general welfare of the child and to afford legitimacy to children whenever possible.” Ex parte C.A.P., 683 So.2d at 1012.

In Hooten v. Hooten, 754 So.2d 634 (Ala.Civ.App.1999), a mother sought to reopen a determination of paternity in a divorce judgment in order to establish that the presumed father, the mother’s former husband, was not the biological father of the child born during the marriage. This court held that “the mother had no standing to reopen the determination in the divorce judgment that the father is the biological father of the child, either pursuant to Rule 60(b)[, Ala. R. Civ. P.,] or pursuant to § 26-17A-1.” 754 So.2d at 635. Furthermore, this court stated:

“Our supreme court has held that no one, including the mother of the child, has standing to challenge a presumed father’s paternity as long as the presumed father persists in claiming paternity of the child. Ex parte C.A.P., 683 So.2d 1010 (Ala.1996); Ex parte Presse, 554 So.2d 406 (Ala.1989). Because the father persists in claiming his paternity of the child, the mother has no standing to challenge the paternity adjudication of the divorce judgment.”

Hooten, 754 So.2d at 635 (emphasis added).

In B.N.P. v. D.M.P., 896 So.2d 505 (Ala.Civ.App.2004), this court affirmed a trial court’s judgment holding that a child, who was born during the marriage of the mother to the presumed father, did not have standing to contest the paternity of the presumed father after the presumed father and the mother had divorced.

In a special writing in which two other judges joined, Judge Murdock stated that “[t]he AUPA purports to ... govern disputes over paternity, whether raised in a divorce action or in an independent action.” 896 So.2d at 511 (Murdock, J., concurring in the result, with Crawley and Pittman, JJ., joining). Judge Murdock, quoting Hooten, supra, stated that “ ‘[o]ur supreme court has held that no one, including the mother of the child, has standing to challenge a presumed father’s paternity as long as the presumed father persists in claiming paternity of the child.’ 754 So.2d at 635 (citing Ex parte Presse and Ex parte C.A.P., 683 So.2d 1010 (Ala.1996)).” B.N.P., 896 So.2d at 511-12 (footnote omitted). Furthermore, Judge Mur-dock noted that “[a]side from the presumed father (who persists in claiming paternity) the other two parties named in § 26-17-6(a), Ala.Code 1975, are the child and the child’s mother. I see no difference in the treatment of those two parties by the statute.” B.N.P., 896 So.2d at 511 n. 3.

In the case now before us, the husband is the presumed father because the child was born during the marriage. Ex parte C.A.P., 683 So.2d at 1011. The wife challenged the paternity of the husband in the divorce proceeding. Throughout the proceeding, the husband persisted in asserting his paternity. Indeed, the husband persisted in asserting his paternity even after the DNA test results indicated that he was not the biological father of the child. Moreover, the same policy considerations involved in Ex parte C.A.P.—i.e., providing for the psychological well-being of the child and affording legitimacy to the child whenever possible — apply to the present case. Ex parte C.A.P., supra. Consequently, applying the reasoning of Judge Murdock, joined by Judge Crawley and Judge Pittman, in B.N.P., we now conclude, under the facts of the case now before us, that the wife does not have standing to challenge the paternity of the husband. See Hooten, supra; B.N.P., supra.

Even though this court has held that “the mother of a child born during a marriage may bring a paternity action to rebut the strong presumption that the husband is the father of the child,” S.E.B. v. J.H.B., 605 So.2d 1230, 1232 (Ala.Civ.App.1992); see also Goodno v. Cobb, 567 So.2d 376 (Ala.Civ.App.1990), those cases preceded our supreme court’s decision in Ex parte C.A.P.

AFFIRMED.

CRAWLEY, P.J., and BRYAN, J., concur.

MURDOCK, J., concurs specially, with writing.

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

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

MURDOCK, Judge,

concurring specially.

I fully agree with the reasoning of the main opinion applying the rule that “ ‘no one, including the mother of the child, has standing to challenge a presumed father’s paternity as long as the presumed father persists in claiming paternity,’ ” 936 So.2d at 541 (quoting Hooten v. Hooten, 754 So.2d 634, 635 (Ala.Civ.App.1999)) (emphasis omitted), including the explanation of the policy objectives underlying that rule. In addition, this court made the following statement regarding the nature of and reasons for that rule in P.G. v. G.H., 857 So.2d 823, 829 (Ala.Civ.App.2002):

“The Presse Court also noted with approval the position that ‘ “the presumption that the husband of the mother of a child born during marriage is the father of that child — is often said to be one of the strongest presumptions known to the law.” ’ [Ex parte Presse, 554 So.2d 406, 413 (Ala.1989)] (quoting Note, R. McG. & C.W. v. J.W. & W.W.: The Putative Father’s Right to Standing to Rebut the Marital Presumption of Paternity, 76 N.W.U.L.Rev. 669 (1981)).... [T]he Presse Court quoted at great length from the plurality opinion in Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989). In light of [the biological father’s] evidentiary argument that he rebutted the presumption of [the presumed father’s] paternity, we note the following portion of Michael H. quoted with approval by our Supreme Court in Ex parte Presse:
“ ‘ “[The biological father] asserts that requirements of procedural due process prevent the State from terminating his liberty interest in his relationship with his child without affording him an opportunity to demonstrate his paternity in an evidentiary hearing. We believe this claim derives from a fundamental misconception of the nature of the California statute. While § 621 is phrased in terms of a presumption, that rule of evidence is the implementation of a substantive rule of law. California declares it to be, except in limited circumstances, irrelevant for paternity purposes whether a child conceived during and born into an existing marriage was begotten by someone other than the husband and had a prior relationship with him. As the Court of Appeal phrased it:
“ ““ “The conclusive presumption is actually a substantive rule of law based upon a determination by the Legislature as a matter of overriding social policy, that given a certain relationship between the husband and wife, the husband is to be held responsible for the child, and that the integrity of the family unit should not be impugned.” ’ [Michael H. v. Gerald D.,] 191 Cal.App.3d [995,] 1005, 236 Cal.Rptr. [810,] 816 [(1987)], quoting Vincent B. v. Joan R., 126 Cal.App.3d [619], at 623, 179 Cal.Rptr. [9], at 10 [(1981)].
“ ‘ “Of course the conclusive presumption not only expresses the State’s substantive policy but also furthers it, excluding inquiries into the child’s paternity that would be destructive of family integrity and privacy.” ’
“Ex parte Presse, 554 So.2d at 415 (quoting Michael H. v. Gerald D., 491 U.S. at 119-20, 109 S.Ct. 2333) (emphasis omitted).”

PITTMAN, Judge,

concurring in the result.

Although I joined the special writing in B.N.P. v. D.M.P., 896 So.2d 505 (Ala.Civ.App.2004), that is relied upon in the per curiam opinion, in my view Hooten v. Hooten, 754 So.2d 634 (Ala.Civ.App.1999), is the primary authority that compels affir-mance in this case. Hooten, by interpreting Ex parte C.A.P., 683 So.2d 1010 (Ala.1996), as having taken the position that “no one, including the mother of the child, has standing to challenge a presumed father’s paternity as long as the presumed father persists in claiming paternity of the child” (754 So.2d at 635), overruled by implication the contrary holdings in S.E.B. v. J.H.B., 605 So.2d 1230 (Ala.Civ.App.1992), and Goodno v. Cobb, 567 So.2d 376 (Ala.Civ.App.1990). The pertinent special writing in B.N.P. relied upon Hooten’s reading of C.A.P. and applied that reading to a new procedural setting — a child’s paternity challenge. It remains to be seen whether the Alabama Supreme Court will eventually espouse Hooten’s gloss on C.A.P., but Hooten does support affir-mance, and I therefore concur in the result to affirm.

      . The husband initially filed this action in the Etowah Circuit Court; however, the Etowah Circuit Court granted the wife's motion to transfer the action to the Calhoun Circuit Court.

      . "[Section] 26-17-5(a)(l) does not require that the child be conceived during the marriage to make the husband the presumed father. Rather, all that is required, under either caselaw or statute, is that the child be born during the marriage. The Code uses the word 'birth' as the benchmark for establishing presumptions of paternity, not the time of conception....
      " '[S]ince the husband was married to the mother at the time of the birth, we find that § 26-17-5(a)(l) controls and that the husband is the presumed father under that section.' ”

        Ex parte C.A.P., 683 So.2d 1010, 1012 (Ala.1996)(quoting Foster v. Whitley, 564 So.2d 990, 991 (Ala.Civ.App.1990)).

      . " ‘When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.' ” P.G. v. G.H., 857 So.2d 823, 826 (Ala.Civ.App.2002) (quoting State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999)). “ 'Standing imparts justiciability to the issues raised....’ ” Langham v. Wampol, 902 So.2d 58, 62 (Ala.Civ.App.2004) (quoting Cassady v. Claiborne, 590 So.2d 339, 341 (Ala.Civ.App.1991), citing, in turn, Worth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)).

      . This court has noted that under § 26-17-9(a) "an action for paternity may be joined with an action for divorce.” Ex parte Jones, 896 So.2d 553, 555 (Ala.Civ.App.2004). Additionally, " 'a paternity adjudication in a divorce action, which is necessary for purposes of support and inheritance, is res judicata to the parties in the divorce action...Powers v. State, 622 So.2d [400], 401 [(Ala.Civ.App.1993)].” Gann v. Gann, 705 So.2d 509, 511 (Ala.Civ.App.1997).


author: SHAW, Judge.

text:
    Anthony Lynn KNIGHT v. STATE of Alabama.
    CR-04-0199.
    Court of Criminal Appeals of Alabama.
    March 18, 2005.

      Joe M. Reed, Montgomery, for appellant.
    Troy King, atty. gen., and Bettie J. Car-mack, asst. atty. gen., for appellee.
   SHAW, Judge.

Anthony Lynn Knight pleaded guilty to unlawful possession of a controlled substance, cocaine, a violation of § 13A-12-212, Ala.Code 1975, and to harassment, a violation of § 13A-ll-8(a)(l), Ala.Code 1975. He was sentenced to two years’ imprisonment for the possession conviction and to six months’ imprisonment in the city jail for the harassment conviction, the sentences to run concurrently. Both sentences were suspended, and Knight was placed on one year’s probation for both convictions; for the harassment conviction, he was also ordered to spend four consecutive weekends in the city jail beginning October 8, 2004.

Before entering his guilty pleas, Knight “reserve[d] the suppression [issue] that [he] previously had a hearing on.” (R. 38.) On appeal, Knight argues that this Court should reverse the trial court’s denial of his motion to suppress.

The record reflects that Knight filed a motion to suppress, in which he contended that all the evidence in this case should be suppressed as fruit of the poisonous tree because, he said, all the evidence was discovered as a result of an illegal stop and search. Specifically, he contended that the anonymous tips received by the Montgomery Police Department on August 10, 2002, did not have the requisite indicia of reliability to justify a Terry stop of the vehicle in which Knight was a passenger.

On July 14, 2003, the trial court conducted a hearing on Knight’s suppression motion. At the suppression hearing, Terrence James, an officer with the Montgomery Police Department, testified that on the evening of August 10, 2002, a BOLO (be on the lookout) was issued for a full-size red pickup truck. The BOLO was issued pursuant to a call dispatch had received indicating that people in a full-size red pickup truck were exchanging gunfire with people in a bluish-gray compact-size vehicle near Highland Avenue and Ann Street in Montgomery. Dispatch received a second call 15 to 30 minutes after the first regarding the “same thing, same description, shooting in the area of ... Highland Avenue” (R. 11), and a second BOLO was issued. Officer James testified that within 30 minutes of the issuance of the second BOLO, he and his partner were sitting at the corner of Hall and Highland — four to five blocks from Highland Avenue and Ann Street, the area where the shots had reportedly been fired — when they observed a full-size red pickup truck pass through the intersection. The officers initiated a traffic stop of the truck because it matched the description of the vehicle in the BOLO.

At the conclusion of the suppression hearing, the trial court did not issue a ruling on the motion to suppress; instead, the trial court indicated that it did not know the answer to the question “if you get a call of someone shooting something or doing something, when can you stop them” (R. 32), but that it hoped to get the answer to the question by reading the caselaw provided by the parties.

At the guilty-plea proceedings held on January 29, 2004, the following exchange occurred:

“[Knight’s attorney]: ... My only question would be, Judge, does [Knight] need to preserve his appeal of the suppression [issue] now or before he plead or — because I was listening to what you said, unless he preserves anything before he pleads—
“THE COURT: If I were you, just to be safe, I would go ahead and reserve the right to appeal the suppression issue. I haven’t ruled on it yet, have I?
“[Knight’s attorney]: Yes, sir.
“THE COURT: I did?
“[Prosecutor]: I don’t think there was an order put out.
“THE COURT: Well, anyway, do you want to reserve the suppression [issue] that you previously had a hearing on?
“[Knight’s attorney]: Yes, sir.
“THE COURT: All right.”

(R. 37-38.) At the conclusion of the sentencing hearing, Knight’s attorney stated: “[W]e want[ ] to preserve his right to appeal the suppression issue.” (R. 52.) The trial court replied: “He is reserving the issue of the suppression that he previously argued with me for appeal.” (R. 52.)

“This court will not review the merits of a motion presented by the appellant at trial unless the court below has issued a ruling adverse to the appellant on the motion. Knight v. State, 623 So.2d 376, 379 (Ala.Cr.App.1993). It is the appellant’s duty to preserve the record for appeal by invoking a ruling from the trial court. White [v. State], 589 So.2d [765,] 766 [(Ala.Crim.App.1991)].”

Berryhill v. State, 726 So.2d 297, 302 (Ala.Crim.App.1998).

“If counsel makes objections and secures rulings ‘off the record,’ this court cannot consider those rulings.... Our review is limited to matters of record.”

Jefferson v. State, 449 So.2d 1280, 1282 (Ala.Crim.App.1984). Our review of the record does not reveal an adverse ruling by the trial court on Knight’s motion to suppress.

In Mitchell v. State, 913 So.2d 501 (Ala.Crim.App.2005), this Court stated:

“Reserving the right to appeal an issue is not the equivalent of preserving an issue for appellate review. To preserve an issue for appellate review, the issue must be timely raised and specifically presented to the trial court and an adverse ruling obtained. The purpose of requiring an issue to be preserved for review is to allow the trial court the first opportunity to correct any error. See, e.g., Ex parte Coulliette, 857 So.2d 793 (Ala.2003). To reserve an issue for review, a defendant must express his or her intention, before the guilty plea is entered, to appeal the issue in question. Because a guilty plea waives all nonju-risdictional defects occurring before the entry of the plea, by entering a guilty plea a defendant is presumed to have abandoned all nonjurisdictional defects that occurred before the plea unless he or she expressly conditions the plea on the right to appeal the issue in question by expressly reserving it before entry of the plea. See, e.g., Prim v. State, 616 So.2d 381 (Ala.Crim.App.1993). Reserving an issue for appeal avoids the waiver effect of the guilty plea, but it does not preserve the issue for appellate review.4 Thus, in the guilty-plea context, an issue relating to a defect occurring before the entry of the plea must be both preserved by a timely and specific motion and/or objection and an adverse ruling from the trial court and reserved for appeal before the entry of the plea.
“In this case, Mitchell reserved issue (1) for appeal; however, he failed to preserve it by filing a timely motion and/or objection with the trial court and obtaining an adverse ruling on the motion or objection. Therefore, it is not properly before this Court for review.
“4Reserving an issue before a guilty plea is entered is also one of two methods by which a defendant may invoke the limited right to appeal a guilty-plea conviction. See Rule 14.4(a)(1) (viii), Ala.R.Crim.P. The other method is by filing a motion to withdraw the guilty plea. See Rule 26.9(b), Ala.R.Crim.P.”

913 So.2d at 505. While Knight reserved the suppression issue for appeal before he entered his guilty pleas, there is no indication in the record that Knight obtained an adverse ruling from the trial court on his suppression motion. Thus, he did not preserve the suppression issue for appellate review.

Because the issue presented on appeal is not properly before this Court for appellate review, the trial court’s judgment is due to be affirmed.

However, although we are affirming Knight’s convictions for unlawful possession of a controlled substance and harassment, we must remand this case for resentencing on the harassment conviction because the trial court has imposed a sentence that exceeds the maximum allowed by statute. “Matters concerning unauthorized sentences are jurisdictional,” Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994), and we may take notice of an illegal sentence at any time. See, e.g., Pender v. State, 740 So.2d 482 (Ala.Crim.App.1999).

Harassment is a Class C misdemeanor. See § 13A-ll-8(a)(3), Ala.Code 1975. The sentence that may be imposed for a Class C misdemeanor is imprisonment in the county jail for “not more than three months.” § 13A-5-7(a)(3), Ala.Code 1975. As previously noted, Knight was sentenced to six months’ imprisonment for the harassment conviction. Thus, Knight’s sentence for the harassment conviction exceeds the maximum allowed by statute.

Therefore, based on the foregoing, we remand this case for the trial court to resentence Knight pursuant to § 13A-5-7(a)(3). Due return shall be filed with this Court no later than 35 days from the date of this opinion.

AFFIRMED AS TO CONVICTIONS; REMANDED WITH DIRECTIONS AS TO SENTENCING.

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

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


text:
    Willie Edward LEWIS v. STATE of Alabama.
    CR-04-0606.
    Court of Criminal Appeals of Alabama.
    April 29, 2005.
    Willie Edward Lewis, pro se.
    Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   SHAW, Judge.

Willie Edward Lewis appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconvietion relief, in which he attacked his 1982 guilty-plea conviction for robbery in the second degree and his resulting sentence of two years’ imprisonment. Lewis did not appeal his conviction and sentence.

Lewis filed the present petition on August 10, 2004. In his petition, Lewis alleged that the trial court lacked jurisdiction to accept his guilty plea to second-degree robbery because, he said, second-degree robbery was not a lesser-included offense of first-degree robbery as charged in his indictment. Specifically, Lewis argued that the first-degree-robbery indictment did not allege that he was aided in the commission of the robbery by another person and that the indictment was never amended to include such an allegation. After receiving a response from the State, the circuit court summarily denied the petition on November 30, 2004.

In its brief on appeal, the State correctly concedes that this case must be remanded for a determination of whether the first-degree-robbery indictment was properly amended to add the fact that Lewis was aided in the robbery by another person before Lewis pleaded guilty to second-degree robbery. We note, however, that in its response to Lewis’s petition the State argued that Lewis had failed to prove his claim and in its order summarily denying Lewis’s petition the circuit court found both that Lewis had failed to plead his claim and that he had failed to prove his claim. However, Lewis had no burden of proof at the pleading stage. As this Court explained in Ford v. State, 831 So.2d 641 (Ala.Crim.App.2001):

“[A]t the pleading stage of Rule 32 proceedings, a Rule 32 petitioner does not have the burden of proving his claims by a preponderance of the evidence. Rather, at the pleading stage, a petitioner must provide only ‘a clear and specific statement of the grounds upon which relief is sought.’ Rule 32.6(b), Ala. R.Crim.P. Once a petitioner has met his burden of pleading so as to avoid summary disposition pursuant to Rule 32.7(d), Ala.R.Crim.P., he is then entitled to an opportunity to present evidence in order to satisfy his burden of proof.”

831 So.2d at 644. See also Thomas v. State, 908 So.2d 308 (Ala.Crim.App.2004); Borden v. State, 891 So.2d 393 (Ala.Crim.App.2002); and Johnson v. State, 835 So.2d 1077 (Ala.Crim.App.2001). Moreover, contrary to the circuit court’s finding, Lewis satisfied his burden of pleading under Rule 32.3 and 32.6(b), Ala.R.Crim.P. Therefore, the circuit court erred in finding that Lewis failed to plead and to prove his claim.

Lewis attached as an exhibit to his Rule 32 petition a copy of the indictment returned against him by the grand jury; that indictment charged:

“Willie Edward Lewis, [w]hose name is to the Grand Jury otherwise unknown, did, in the course of committing a theft of $263.00 in lawful currency or coinage or currency and coinage of the United States of America, a better description of which is unknown to the Grand Jury, of the value of $263.00, the property of Mary Findley, use force against the person of the owner or any person present, Mary Findley, with the intent to overcome her physical resistance or physical power of resistance, or threaten the imminent use of force against the person of the owner or any person present, Mary Findley, with the intent to compel acquiescence to the taking of or escaping with the property, while the said Willie Edward Lewis was armed with a deadly weapon or dangerous instrument, to-wit: pistol or an object otherwise unknown to the Grand Jury, in violation of Section 13A-8-41 of the Code of Alabama.”

(C. 19.)

In Ex parte Cole, 842 So.2d 605 (Ala.2002), the Alabama Supreme Court stated:

“When, as here, an indictment for first-degree robbery fails to set forth facts from which one might conclude that the defendant was aided in the robbery by another participant — an essential element of the offense of second-degree robbery — the insufficiency of the factual basis for a guilty plea to second-degree robbery may be subsequently attacked on the basis that the trial court lacked subject-matter jurisdiction to accept the plea. Had the trial court obtained [the defendant’s] consent to amend the indictment charging first-degree robbery by adding the fact that another participant was present, no new offense would have been charged because first-degree robbery is broad enough to include such an element. An indictment so amended, permitting a defendant to plead guilty to second-degree robbery, would not run afoul of Rule 13.5(a)[, Ala. R.Crim. P.]. That, however, did not occur here. To treat the proceedings in this case as if the original indictment included that additional fact just because Cole pleaded guilty would disregard the settled principle that one cannot consent to an improper amendment to an indictment.”

842 So.2d at 609. In Toliver v. State, 881 So.2d 1070 (Ala.Crim.App.2003), this Court explained:

“It is well settled that ‘[r]obbery in the second degree is not a lesser included offense of robbery in the first degree, unless the defendant is aided in the commission of the robbery by another person actually present....’ Howard v. State, 710 So.2d 456, 458 (Ala.Crim.App.1996), remanded on other grounds, 710 So.2d 460 (Ala.1997). We believe that the point of Ex parte Cole was that the fact that the defendant was aided in the commission of the robbery by another person must be included within the first-degree-robbery charge itself for second-degree robbery to be a lesser-included offense of first-degree robbery. In other words, if the first-degree-robbery charge does not include the fact that the defendant was aided in the robbery by another person, then second-degree robbery is not a lesser-included offense of first-degree robbery, and a trial court would not have jurisdiction to accept a plea to second-degree robbery because that offense would not be encompassed within the first-degree-robbery indictment. Of course, as the Supreme Court noted in Ex parte Cole, because the offense of robbery in the first degree is broad enough to encompass the fact that the defendant was aided in the robbery by another person, amending an indictment charging first-degree robbery to include that fact would not violate Rule 13.5(a), Ala.R.Crim.P. However, amending an indictment charging first-degree robbery that did not include the fact that the defendant was aided in the robbery by another person to charge second-degree robbery — either by a formal and express amendment to the indictment or by the entry of a plea to second-degree robbery — would violate Rule 13.5(a) because, under those circumstances, second-degree robbery would not be a lesser-included offense of first-degree robbery.”

881 So.2d at 1074. See also Wright v. State, 902 So.2d 738 (Ala.2004), and Childers v. State, 899 So.2d 1025 (Ala.2004),

The record before us does not contain a transcript of the guilty-plea colloquy; thus, we cannot determine whether the indictment charging Lewis with first-degree robbery was amended to include the allegation that he was aided in the robbery by another person. Further, as noted above, the State alleged in its response only that Lewis had failed to prove his claim; it did not, however, refute Lewis’s claim. Thus, we must accept Lewis’s allegation as true. See, e.g., Bates v. State, 620 So.2d 745, 746 (Ala.Crim.App. 1992), quoting Smith v. State, 581 So.2d 1283, 1284 (Ala.Crim.App.1991) (“‘When the State does not respond to a petitioner’s allegations, the unrefuted statement of facts must be taken as true.’ ”).

Based on the foregoing, we remand this case for the circuit court to determine whether the indictment charging first-degree robbery was amended to add the fact that Lewis was aided in the robbery by another person and for that court to issue specific written findings of fact in that regard. The court shall either conduct an evidentiary hearing or take evidence in the form of affidavits, written interrogatories, or depositions. See Rule 32.9(a), Ala. R.Crim.P. If the court determines that the indictment charging Lewis with first-degree robbery was properly amended to add the fact that Lewis was aided in the robbery by another person, the court should so state in its order. If, however, the court determines that the indictment was not properly amended to add the fact that Lewis was aided in the robbery by another person, it shall vacate Lewis’s conviction for second-degree robbery. Due return shall be filed with this Court within 42 days from the date of this opinion. The return to remand shall include the circuit court’s written findings, a transcript of the evidentiary hearing, if one is conducted, and any other evidence received by the court on remand.

REMANDED WITH DIRECTIONS.

McMILLAN, PH., and COBB and WISE, JJ., concur. BASCHAB, J., concurs in the result.