author: STUART, Justice.

text:
    CITY OF BIRMINGHAM and William Gilchrist v. William BROWN and Henry Clayton.
    1050798.
    Supreme Court of Alabama.
    Feb. 23, 2007.
    Rehearing Denied April 20, 2007.

      Fredric L. Fullerton II, asst, city atty., City of Birmingham Law Department, for appellants.
    C. Jackson Perkins, Birmingham, for ap-pellees.
   STUART, Justice.

The City of Birmingham (“the City”) and William Gilchrist appeal from a judgment entered on a jury’s verdict awarding damages to brothers William Brown and Henry Clayton (hereinafter referred to collectively as “the brothers”). We reverse and remand with directions.

Facts

The brothers own 4.6 acres of property at the corner of Ostlin Street and Weno-nah-Oxmoor Road in Jefferson County. The elevation of their property is lower than that of the property around it; approximately 1.48 acres of the property is situated in a floodplain. Additionally, “Little Shades Creek” runs across a portion of the property.

Alto Tarver and his wife own Tarver Consulting & Development Company (hereinafter referred to collectively as “Tarver”). Tarver owned a larger tract of land on Ostlin Street across from the brothers’ property; this tract of land sits at a much higher elevation than does the brothers’ property. Tarver proposed to develop its property into a residential subdivision to be known as Pine Ridge Estates.

To develop the property, Tarver had to obtain a “civil construction permit” from the City, which required that Tarver comply with certain City regulations. Tarver hired Ronald K. Wilson, an engineer at Design Services, Inc., to design a drainage system for the Pine Ridge Estates subdivision that would comply with the City’s regulations. Wilson designed a drainage system- and, on September 26, 2000, submitted a letter to the Department of Planning, Engineering, and Permits for the City; that letter stated, in pertinent part:

“I hereby certify that all drainage structures serving the proposed Pine Ridge [Estates] Subdivision were designed using sound engineering principles and practices. I further certify that all structures are sized to handle on-site storm runoff, as well as off-site runoff which drains through the site, based on a 10-year, 24-hour event as stipulated by the City of Birmingham.
“As with all developments, post-development runoff exceeds pre-development runoff due to an increase in impervious area. However, existing natural watercourses and drainage structures downstream of this development possess adequate capacity to accommodate the increase in flow.”

In January 2001, the City “accepted” Wilson’s drainage-system design, approved Tarver’s proposed subdivision plat for Pine Ridge Estates, and issued a civil construction permit for the subdivision.

The record indicates that water-drainage problems along Ostlin Street (where the brothers’ property is located) existed before Tarver received approval from the City for the subdivision and began construction. Correspondence in January 2001 between residents of Sand Ridge Neighborhood, a neighborhood located , in the vicinity of the brothers’ property, documented those problems and addressed the issue of water drainage along Ostlin Street. In a letter from Walter Jackson to Willie Cammack, president of the Sand Ridge Neighborhood Association, dated January 3, 2001, Jackson wrote, in pertinent part:

“As a result of our discussions, the [Birmingham] City Council, at its meeting on January 2, 2001, approved an appropriation of $60,000 to be used to improve existing storm water provisions along Ostlin Street, in addition to what is currently being done by Tarver Development Company (TDC), and to assist TDC with infrastructure improvements in that area: including curbs, gutters, and sidewalks. Hopefully, this will address the concerns of both Mr. & Mrs. Harris and Mr. Brown.”

This appropriation by the City was also addressed in the minutes of the January 8, 2001, meeting of the Sand Ridge Neighborhood Association. The minutes indicate that “[t]he [Birmingham] City Council ... approved an appropriation of $60,000 to be used to improve existing storm water provisions along Ostlin Street, in addition to what is currently being done by Tarver ... and to assist Tarver with infrastructure improvements along that area: including curbs, gutters, and sidewalks.” The evidence in the record establishes that the Birmingham City Council appropriated $50,000, not $60,000, to Tarver in January 2001, for the purpose stated in Jackson’s letter.

Tarver proceeded with the development of the Pine Ridge Estates subdivision. The drainage system for the subdivision was installed. The City then connected the drainage system to an existing drainage pipe located along a right-of-way and adjacent to the brothers’ property.

The brothers sued Tarver, the City, and William Gilchrist, the director of the Department of Planning, Engineering, and Permits for the City, in his official and individual capacity. According to the complaint, as a result of the drainage system installed for the Pine Ridge Estates subdivision, surface water from other property was diverted onto the brothers’ property, thereby flooding it. The complaint alleged trespass; nuisance; negligent design and construction of the drainage system; and willful and wanton design of the drainage system.

The City and Gilchrist filed motions for a judgment as a matter of law, arguing that the brothers’ claims asserting intentional wrongdoing should be dismissed. The City argued that claims of intentional wrongdoing were not allowed against the City; Gilchrist argued that the brothers had presented no evidence indicating that he had engaged in any intentional wrongdoing. The City and Gilchrist also argued that the brothers had no evidence to indicate that the City, Gilchrist, or any other City employee had acted with neglect, carelessness, or unskillfulness in the design and construction of the drainage system along Ostlin Road.

Gilchrist also argued that he was entitled to “discretionary-function immunity” as to all claims. He argued that his job responsibilities required him “to run the Department of Planning, Engineering, & Permits,” and that “[t]he method and- process of running such a department involved numerous discretionary functions— approving construction permits, managing employees, maintaining a department budget, supervising projects, etc.” For these reasons, Gilchrist maintained that he was not liable to the brothers for the flooding of the brothers’ property. The trial court did not rule on these motions before the trial.

The case was tried on February 16, 2005. The brothers called Alto Tarver as their first witness. Alto Tarver testified that he installed the drainage system according to the City’s regulations, that he relied on his engineer’s design to install the drainage system, and that the engineer certified that the existing waterways were adequate to handle the post-development runoff. Alto Tarver also identified several photographs as reflecting various views of the brothers’ property; these photos revealed a great deal of water standing on the property. Alto Tarver testified that he had seen the brothers’ property with large amounts of water standing on it both before and after the construction of the Pine Ridge Estates subdivision.

The brothers also called Randy Kemp, who works under the direction of Gilchrist as the “acting city engineer” in the Department of Planning, Engineering, and Permits. Kemp explained the process of obtaining a civil construction permit, stating:

“[W]e don’t allow any [construction] work in the city without issuing a permit for that work. In the case of infrastructure for a subdivision or commercial development or streets or a storm sewer and that kind of stuff, we issue a civil construction permit. We have criteria that we publish and ask the developers to comply with, such as, minimum pipe sizes. The City ... has an 18-inch minimum pipe size [requirement]. The design calculations may not require that size of pipe but we require [it] for certain reasons for maintenance requirements and that kind of thing. We have standards that are different from other jurisdictions. We are checking for things like that.”

Kemp testified that Wilson’s letter to the Department of Planning, Engineering, and Permits certified that the drainage structures proposed for the development of Pine Ridge Estates complied with the City’s requirements. Kemp stated that the City required such a letter from developers and/or their engineers before it would issue a civil construction permit. According to Kemp, Tarver’s development complied with all of the City’s regulations pertaining to drainage pipes, and he saw nothing negligent in the design of the drainage-sewer system used in the Pine Ridge Estates subdivision. Kemp explained that it is “pretty common” for the City to appropriate funds to assist developers in developing a subdivision.

Kemp testified that the brothers’ property was located in a floodplain, as determined by the Federal Emergency Management Agency. Kemp stated that he had no knowledge as to whether the brothers’ property flooded before Tarver began construction of the Pine Ridge Estates subdivision. Kemp, however, added that the presence of Little Shades Creek running across the brothers’ property could be the cause of some of the flooding occurring on the property.

The brothers next called Cammack, who testified that he was familiar with the water problems on Ostlin Street both before and after the development of Pine Ridge Estates. Cammack testified that, to his knowledge, the brothers’ property had not flooded until after Pine Ridge Estates was developed. Cammack testified that he was aware that the Birmingham City Council had appropriated funds to Tarver to make improvements on Ostlin Street. Cammack was unable to explain why the City would have appropriated funds to “improve” water problems on Ostlin Street around the brothers’ property before Tarver began his construction if the brothers’ property was not already flooding before that construction began.

Brown testified that the brothers’ property did not flood until Tarver developed his property into a subdivision. According to Brown, after Pine Ridge Estates was developed, water came across Ostlin Road to the extent of “washing the road away.” Brown stated that even though he did not know exactly what the City or Tarver had done incorrectly, it was obvious that something had been incorrectly designed or installed or that someone had acted improperly, because the brothers’ property was now flooding. Brown admitted, however, that he had no evidence, other than his testimony, indicating that Tarver or the City had acted negligently in installing or connecting the drainage pipes for the Pine Ridge Estates subdivision.

Brown stated that he was “upset” about the flooding of the property but that he had not sought medical treatment for his emotional upset. He also claimed that his damages totaled $148,321, based on his estimate of the diminution in value to the property. He acknowledged that he had not consulted with an expert to determine the amount of damages; he also acknowledged that he had not consulted with an engineer or other expert to determine if more water was flowing onto his property now than before construction of the Pine Ridge Estates subdivision and, if so, how much. Brown testified that the claim— that more water was coming onto his property after the construction of the subdivision than before — -was based on “sight measurements.”

At the conclusion of the brothers’ case, the trial court entered judgments as a matter of law in favor of the City, Gilchrist, and Tarver as to all claims alleging intentional, willful, or wanton acts; as a result of this judgment, all of the brothers’ claims seeking punitive damages were dismissed.

The City, Gilchrist, and Tarver then put on their defenses on the remaining claims. The City and Gilchrist recalled Kemp as a witness. He testified that the City does not design or construct drainage systems for subdivisions but that, based on his experience and expertise as an engineer, he saw nothing negligent in the design of the drainage system that had been installed at Pine Ridge Estates.

Tarver then briefly took the stand as a defense witness. He testified that he did not design the drainage system that had been installed at Pine Ridge Estates but that, to his knowledge, the system met all the requirements and regulations of the City. At that point, all the defendants rested their case.

At the conclusion of all the evidence, the City, Gilchrist, and Tarver again moved for judgments as a matter of law. In then-arguments, they pointed out that the trial court had entered a judgment as a matter of law as to all claims alleging intentional, willful, or wanton conduct. They asserted that the brothers’ claim of negligent design and installation of the drainage system was the only count involving allegations of negligence and the only claim to survive the trial court’s earlier judgment as a matter of law. The defendants then argued that the brothers had failed to present evidence to support their claim of negligent design and installation; therefore, the defendants argued, they were entitled to a judgment as a matter of law as to that sole remaining count.

The trial court denied these motions, stating:

“I’m going to deny your motion in regards to negligence and allow that count to go to the jury as well in regards to the trespass and regards to the nuisance, along with the facts as set forth and what is not listed as a count, but actually could be classified as a count, those first paragraphs of the complaint. Now, I will give you an exception to my ruling on that.”

The jury returned a verdict in favor of the brothers, awarding them a total of $100,000; the jury specified that Tarver was liable for $25,000 of that award, the City was liable for $37,500, and Gilchrist was liable for $37,500. The City and Gilchrist appeal.

Standard of Review

In Waddell & Reed, Inc. v. United Investors Life Insurance Co., 875 So.2d 1143, 1152 (Ala.2003), this Court stated the standard of review applicable to a trial court’s ruling on a motion for a judgment as a matter of law:

“When reviewing a ruling on a motion for a JML [judgment as a matter of law], this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Regarding questions of fact, the ultimate question is whether the non-movant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. The nonmovant must have presented substantial evidence in order to withstand a motion for a JML. 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. 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. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling.”

(Citations omitted.)

Analysis

Gilchrist and the City contend that the trial court erred in denying their motion for a judgment as a matter of law because, they say, they were entitled to immunity from liability for the brothers’ claims not based on intentional, willful, or wanton conduct.

Gilchrist claims immunity by virtue of being an employee of the City. In Ex parte Cranman, 792 So.2d 392, 405 (Ala. 2000), this Court stated:

“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“(1) formulating plans, policies, or designs; or
“(2) exercising his or her judgment in the administration of a department or agency of government....
“(3) discharging duties imposed on a department or agency 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.... ”

792 So.2d at 405. Immunity applies to employees of municipalities in the same manner that immunity applies to employees of the State. See Ex parte City of Birmingham, 624 So.2d 1018 (Ala.1993). Ex parte Cranman, supra, did nothing to alter this application.

The evidence established that Gilchrist was the director of the Department of Planning, Engineering, and Permits for the City, the department responsible for approving the civil construction permit for the Pine Ridge Estates subdivision, and that Gilchrist, in his capacity as director, wrote Brown a letter, a year or two after the Pine Ridge Estates subdivision had been completed, addressing the brothers’ complaints about the flooding of their property. Gilchrist established his prima facie right to immunity.

The brothers offered no evidence to properly rebut Gilchrist’s right to immunity. The brothers’ evidence does not establish that Gilchrist had any personal involvement in designing or installing the drainage system for Pine Ridge Estates or that Gilchrist had any personal involvement in issuing the civil construction permit to Tarver for the subdivision other than by virtue of his employment in the City’s department responsible for issuing such permits. Because the evidence establishes that Gilchrist is entitled to immunity pursuant to Ex parte Cranman, the trial court erred in denying Gilchrist’s motion for a judgment as a matter of law on the issue of immunity. Therefore, we reverse the judgment entered against Gilchrist and remand this case with directions that the trial court enter a judgment as matter of law in Gilchrist’s favor.

We next address the judgment entered in favor of the brothers against the City. Section 11-47-190, Ala.Code 1975, addresses municipal liability. See City of Prattville v. Corley, 892 So.2d 845 (Ala. 2003) (residents’ claims of negligence, trespass, and nuisance asserted against the City of Prattville, arising from flooding of the City’s storm drains, fell within the scope of § 11-47-190, Ala.Code 1975). Section 11-14-190 provides:

“No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless such injury or wrong was done or suffered through the neglect, carelessness or unskillfulness of some agent, officer or employee of the municipality engaged in work therefor and while acting in the line of his or her duty, or unless the said injury or wrong was done or suffered through the neglect or carelessness or failure to remedy some defect in the streets, alleys, public ways or buildings after the same had been called to the attention of the council or other governing body or after the same had existed for such an unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council or other governing body and whenever the city or town shall be made liable to an action for damages by reason of the unauthorized or wrongful acts or negligence, carelessness or un-skillfulness of any person or corporation, then such person or corporation shall be liable to an action on the same account by the party so injured. However, no recovery may be had under any judgment or combination of judgments, whether direct or by way of indemnity under Section 11-47-24, or otherwise, arising out of a single occurrence, against a municipality, and/or any officer or officers, or employee or employees, or agents thereof, in excess of a total $100,000 per injured person up to a maximum of $300,000 per single occurrence, the limits set out in the provisions of Section 11-93-2 notwithstanding.”

Thus, to establish liability on the part of the City, under § 11-47-190, Ala.Code 1975, the brothers had to present evidence indicating that some agent, employee, or officer of the City had acted neglectfully, unskillfully, or carelessly.

According to the evidence, the drainage system for the Pine Ridge Estates subdivision submitted by Tarver for the City’s approval met all the requirements for a civil construction permit as established by the City’s Department of Planning, Engineering, and Permits. The brothers did not offer any expert testimony to challenge the adequacy of the requirements established by that department, and they did not establish that anyone employed with or acting on behalf of the City acted with neglect, carelessness, or unskillfulness in reviewing the engineer’s certification of the proposed drainage system for Pine Ridge Estates, in accepting the engineer’s certification, or in issuing the civil construction permit in reliance on the certification submitted by Tarver’s engineer. At most, the brothers’ evidence established that the surface water from Tarver’s property was caused to run onto the brothers’ property, causing flooding. This evidence, however, does not involve a showing that the “flooding” of the brothers’ property was “done or suffered through the neglect, carelessness or unskillfulness of some agent, officer or employee” of the City. See Sargent v. Lambert Constr. Co., 378 So.2d 1153 (Ala.Civ.App.1979). Because the brothers did not establish that their damage or injuries were suffered as a result of some neglect, carelessness, or unskillfulness of an agent, officer, or employee of the City, they did not establish a basis for recovery against the City.

Therefore, we reverse the judgment entered in the brothers’ favor against the City and remand the case for the trial court to enter a judgment as a matter of law in favor of the City.

Because of our resolution of the foregoing issues, we need not address the other issues raised on appeal by the City and Gilchrist.

Conclusion

The trial court erred in denying the motion for a judgment as a matter of law filed by the City and Gilchrist. We reverse the judgment of the trial court and remand this cause to the trial court with directions that it enter a judgment in favor of the City and Gilchrist.

REVERSED AND REMANDED WITH DIRECTIONS.

COBB, C.J., and SEE, LYONS, WOODALL, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

      . It appears that Jackson is involved with the Birmingham City Council and that he acted as a liaison between the city council and the Sand Ridge Neighborhood Association.

      . The brothers did not name the engineer hired by Tarver as a defendant in this action.

      . The trial court acknowledged that the brothers could not have recovered any damages from the City for willful or wanton or intentional conduct "of some agent, officer or employee of the municipality engaged in work therefor and while acting in the line of his duty,” pursuant to § 11-47-190, Ala.Code 1975.

      . It appears that the trial court recognized that the complaint and the evidence set forth the common-law claim recognized in Sargent v. Lambert Construction Co., 378 So.2d 1153, 1155 (Ala.Civ.App.l979)("'An upper proprietor who collects surface water into a channel and casts it upon property of a lower proprietor to his damage, when if it were not so collected the water would be scattered and diffused, is liable for the damage though the property is located within an incorporated town or city.' ”).

      . Tarver did not appeal the judgment against it; therefore, we do not address that judgment.

      . The brothers do not argue that the injury was caused by the City's failure “to remedy some defect in the streets, alleys, public ways or buildings”; therefore, we do not apply this portion of § 11-47-190.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge. THOMAS, Judge,

license: Public Domain

text:
    J.S. v. ST. CLAIR COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2051061.
    Court of Civil Appeals of Alabama.
    April 27, 2007.
    Timothy Paul Wasyluka, Jr., of Wasylu-ka Law, LLC, Birmingham, for appellant.
    Troy King, atty. gen., and Sharon E. Ficquette and Elizabeth L. Hendrix, asst, attys. gen., Department of Human Resources, for appellee.
   THOMPSON, Presiding Judge.

On November 1, 2005, the St. Clair County Department of Human Resources (“DHR”) filed a petition seeking to terminate the parental rights of J.S. (“the mother”) to A.S., her five-year-old son. The mother answered. Following a hearing on December 6, 2005, at which the trial court received ore tenus evidence, the trial court entered an order on July 28, 2006, terminating the mother’s parental rights. The mother timely appealed.

The evidence presented at the termination hearing revealed that the child had been born with a mild form of arthrogryp-osis, a debilitating birth defect resulting when a baby is born with multiple joints in a fixed position. The child’s limitations as a result of the arthrogryposis include an inability to walk. The child requires physical therapy each day and undergoes occupational therapy once a week. The child requires 24-hour, supervised care.

In February 2003, the child was removed from the mother’s custody by the Calhoun County Department of Human Resources and was placed in foster care as a result of allegations of domestic violence, neglect, and drug abuse. The child was later returned to the mother’s physical custody in October 2003. In April 2004, DHR investigated reports that the mother was abusing drugs and not caring for the child in light of the child’s special needs. As a result of that investigation, the child was removed from the mother’s custody in April 2004.

Janet Salas, a DHR caseworker, testified that when she visited the mother to investigate the reports of drug abuse and neglect, the mother, who was living with her father at the time, tested positive for cocaine. Salas testified that the mother was unable to get out of bed and that she had hung towels over the windows in order to block sunlight from coming into the house. According to Salas, the house smelled of animal urine and feces.

The mother has a long history of drug abuse. The mother testified that she had abused drugs for approximately 10 years. The mother stated that she had used marijuana, cocaine, and methamphetamine. The mother explained that she would get high on drugs at night when the child was asleep. The mother testified that her last positive drug screen was in September 2005 when she tested positive for crack cocaine; however, other evidence indicated that the mother had tested positive for drugs in October 2005. The mother admitted that she had used crack cocaine over the course of the year preceding the final hearing after the child was removed from her custody. The mother testified that she had tried to participate in a rehabilitation program but was unsuccessful because she had no health insurance. The mother testified that she had been participating in Alcoholics Anonymous meetings during the three weeks preceding the termination hearing. The mother testified that she last used drugs in September 2005 and that she considered herself to be drug-free at the time of the December 6, 2005, termination hearing.

At the time of the termination hearing, the mother, who was then 38 years old, lived in a Salvation Army women’s shelter. The mother had lived in the shelter since September 2005. The mother testified that she had nowhere else to go. The mother testified that she had her own room at the shelter and that living in the shelter offered her a “controlled” environment.

The mother testified that before living in the shelter she had been “jail hopping.” According to the mother, she had been in and out of jail at least four times since April 2004, when the child was removed from her custody. The mother testified that she had been jailed at different times for possessing marijuana and drug paraphernalia, for failing to appear on those possession charges, for negotiating a worthless negotiable instrument, and for charges stemming from the unauthorized use of a vehicle. The mother testified that the length of her stays in jail ranged from five days to three months. The mother testified that there were no outstanding criminal charges against her at the time of the termination hearing.

The mother testified that after her father died in July 2004 she was forced to move out of his house. The mother explained that she had no place to live from August 2004 to February 2005 but that she lived wherever she could find a place to lay her head. In February 2005, the mother lived at the Hannah Home, a group home for women and children, but she lost her bed there after she was incarcerated for five days. The mother testified that she then went to live with a friend for a couple of months before renting a hotel room in Anniston. After living in the hotel room, the mother was incarcerated again. The mother testified that, after her release from jail, she lived under overpasses and ate out of trash cans. The mother testified that she later stayed at a friend’s house before being arrested for failing to appear on charges of drug possession.

The mother is a licensed cosmetologist. The mother testified that, at the time of the termination hearing, she was employed at the Personal Touch Hair Care Salon. The mother had worked for the salon for almost three months at the time of the hearing. The mother testified that she was earning a net income of $160 to $230 a week. The mother testified that she had not paid child support since the child had been in the custody of DHR, but she acknowledged that she had saved money from her employment as a cosmetologist. The mother explained that she had given toys, diapers, and clothes to the child’s foster parents for the benefit of the child. In addition to the child, the mother has two children who are no longer in her custody. The record does not indicate whether the mother’s parental rights to those children have been terminated.

The mother testified that DHR offered her parenting classes, drug counseling, and transportation. According to the mother, DHR offered to help her secure housing only if she remained employed for six months. On cross-examination, the mother testified that, at the time she asked for DHR’s help to secure housing, she was employed but was abusing drugs. The mother admitted that she had not attended all the scheduled visitations with the child. The mother testified that she had successfully completed parenting classes. The mother agreed that it had been in the child’s best interests to be in DHR’s custody during the 20 months preceding the termination hearing because of her drug abuse and general instability. The mother testified that if the child had not been in the custody of DHR, the child would have stayed with his father during those times that the mother was in jail. The mother admitted on cross-examination that she had not started making strides towards reunification until September 2005 — three months before the termination hearing.

Penny Walts, a former DHR caseworker, was the second caseworker assigned to the mother’s case; Walts received the case on September 19, 2004. Walts testified that she held her first Individualized Service Plan (“ISP”) meeting with the mother on November 9, 2004. According to Walts, the mother had not completed any of the goals set by DHR in the initial ISP. Walts testified that the mother had visited the child sporadically and that the mother had failed to complete parenting classes. Walts explained that the mother’s problems were her drug abuse and her lack of stability.

Walts testified that the mother did not adjust her way of living to meet the needs of the child. Walts testified that she referred the mother to drug treatment but that the mother refused inpatient drug treatment. According to Walts, when she referred the mother for outpatient drug treatment at New Pathways, a drug-treatment facility, in November 2004, the mother did not attend until February 2005, and even then, Walts stated, the mother did not successfully complete the outpatient program.

Walts explained that it was hard to keep track of the mother. According to Walts, the mother had moved 21 times over the course of the 9 months that Walts worked on the mother’s case. Walts testified that the rate at which the mother changed residences made it very difficult to locate the mother and to provide services for the mother’s benefit.

Walts testified that she believed that it was in the child’s best interest that the trial court terminate the mother’s parental rights. According to Walts, given the mother’s 10-year battle with drug addiction, two months of sobriety was not sufficient to demonstrate that the mother was truly drug-free. Walts testified that, of the 20 months that the child had been in DHR’s custody, three months of living in a shelter was insufficient to demonstrate the mother’s stability. Walts testified that she consistently asked the mother for names of potential relative resource placements at ISP meetings and that she explored those potential relative resources. According to Walts, the mother’s immediate and extended family were unable to take care of the child.

Kimberly Green, a DHR employee, was assigned the mother’s case in September 2005. Green testified that, at the time she received the case, the mother had made no changes to her lifestyle. Green testified that she held an ISP meeting with the mother and included gaining stability and obtaining housing in the mother’s goals. According to Green, the mother had not contemplated drug rehabilitation. Green testified that she referred the mother to drug-treatment programs but that the mother was terminated from participation in the programs when she tested positive for marijuana, cocaine, and benzodiaze-pine. Green testified that the mother had tested positive for drugs in September 2005 and October 2005.

Green testified that she contacted numerous relative resource placements identified by the mother, some of which had been investigated earlier by Walts for potential placement of the child. According to Green, of the relative resources provided by the mother, some were physically incapable of caring for a child with disabilities and others declined to take care of the child because of his disability.

Green explained that since DHR had filed its petition to terminate the mother’s parental rights, the mother had started attending drug counseling. Green testified that in September 2005 the mother began paying $109 per month in child support and $28.50 towards her child-support arrearage. Green stated that the mother had only missed one supervised visit with the child in the three months preceding the termination hearing. Green believed that it was in the child’s best interests to terminate the mother’s parental rights. Green testified that the child needed stability and that she did not foresee the mother changing her cycle of behavior to accommodate the child’s needs. Green noted the mother’s recent improvement, but she believed that any improvements made by the mother would be short-lived.

The mother contends on appeal that the trial court abused its discretion by terminating her parental rights. With regard to reviewing a case that involves the termination of parental rights, this court has held:

“A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990). A juvenile court’s decision to .terminate parental rights, which is based on evidence presented ore tenus, is presumed correct and will be reversed only if the record demonstrates that the decision is unsupported by the evidence and is plainly and palpably wrong. R.B. v. State Dep’t of Human Res., 669 So.2d 187 (Ala.Civ.App.1995).”

B.M. v. State, 895 So.2d 319, 331 (Ala.Civ. App.2004). See also T.C. v. Cullman County Dep’t of Human Res., 899 So.2d 281 (Ala.Civ.App.2004); and E.Z. v. Calhoun County Dep’t of Human Res., 828 So.2d 332 (Ala.Civ.App.2002).

Section 26-18-7, Ala.Code 1975, sets forth the statutory authority for the termination of parental rights. That section provides, in pertinent part:

“(a) If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
“(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child.
“(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.
“(4) Conviction of and imprisonment for a felony.
“(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.
“(6) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
“(7) That the parent has been convicted by a court of competent jurisdiction of any of the following:
“(8) That parental rights to a sibling of the child have been involuntarily terminated.

“(b) Where a child is not in the physical custody of its parent or parents appointed by the court, the court, in addition to the foregoing, shall also consider, but is not limited to the following:

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

The mother argues on appeal that DHR faded to demonstrate that she would be unable to care for the child in the foreseeable future. The mother suggests that the trial court disregarded the improvements she had made in the three months before the termination hearing when it determined that her parental rights were due to be terminated. She asserts that the termination of her parental rights was premature.

At the time of the hearing in this matter, the child had been in the custody of DHR for 20 months. During that time, the mother had been in and out of jail and had lived wherever she could. The mother regularly used illegal drugs. The mother admitted to continuing to use drugs even after DHR removed the child from her custody. The mother continued to use drugs even after DHR, with the goal of reunification, had developed an ISP requiring the mother to stop using drugs in order to regain custody of the child. DHR provided the mother with several referrals for drug treatment, but the mother did not respond to DHR’s request that she seek treatment for her drug addictions. The mother continued to use illegal drugs until two to three months before the termination hearing.

Over the course of the 20 months that the child was in DHR’s custody, the mother, with the knowledge that one of the goals set by DHR in its ISP was for her to gain stability and to secure housing, changed residences 21 times. At the time of the hearing, the mother was living in a shelter. The mother’s testimony revealed that she had no immediate plans to leave the shelter and secure housing of her own.

In this case, the mother failed to make a consistent effort to meet the goals set forth by DHR. In her brief on appeal, the mother acknowledges her failure to fully comply with the goals set by DHR, stating that her “compliance may not have been ideal, or overall complete to a point where the court should have returned [the child] to her custody, but [the mother’s] compliance was marked, and not refuted by DHR’s evidence.” The mother further states that, “[a]lthough [she] did not complete all of DHR’s requirements, her ability to reform after her last time in prison demonstrates a likelihood that she would change her circumstances.” (Emphasis added.)

Multiple witnesses testified at the termination hearing that the child needed stability. The child suffers from a debilitating birth defect and requires consistent care. DHR made this need for stability clear to the mother when it developed an ISP for her that included goals of finding stable housing, maintaining stable employment, and ending her drug use. The mother’s suggestion on appeal that her recent, minimal compliance with DHR’s requirements demonstrates the likelihood that she will change her circumstances in the future is unsupported by the evidence; rather, the evidence indicates that the mother learned very little from her involvement with DHR. The evidence supports the conclusion that the mother demonstrated an inability to care for the child in the foreseeable future. Given the evidence presented at the termination hearing, we cannot say that the trial court abused its discretion by terminating the mother’s parental rights.

The mother also contends on appeal that the termination of her parental rights was error given DHR’s failure to establish that no viable alternatives to the termination of her parental rights existed. Specifically, the mother contends that DHR failed to establish by clear and convincing evidence that continuing the child’s placement in foster care and allowing the mother to continue her visitation with the child was not a viable alternative to the termination of her parental rights. The mother also suggests that DHR failed to address the possible placement of the child with the mother’s oldest son, M.B.

The mother argues on appeal that placement of the child with her oldest son, M.B., was a viable alternative to the termination of her parental rights. The mother maintains that she informed DHR that she had an older son, that DHR should have known that the son was nearing the age of majority and, thus, that M.B. could have been considered as a relative resource for the placement of the child. The record on appeal does not support the mother’s assertion that DHR knew that M.B. was reaching the age of majority, and that M.B. could be considered a relative resource for the child.

The evidence that the mother suggests was presented to the trial court is not contained in the record on appeal. “This Court is bound by the record, and the record may not be impeached by matters outside the record, such as allegations included in the appellant’s brief.” Coleman v. Taber, 572 So.2d 399, 401 (Ala. 1990); see also Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166, 176 (Ala.2000). The mother’s testimony regarding M.B. is limited to his existence; there is no testimony’ regarding his age or his potential as a relative resource placement for the child. Further, the mother did not invoke Rule 10(f), Ala. R.App. P., which provides for the modification of the record on appeal when material is omitted from the record. Therefore, we will not consider the mother’s argument regarding DHR’s purported failure to consider M.B. as a potential relative resource for the placement of the child. The mother has not demonstrated that the trial court erred by finding that no viable alternatives existed to the termination of her parental rights.

The mother compares her situation to that of the mother in our supreme court’s recent decision in Ex parte T.V., 971 So.2d 1 (Ala.2007), in support of her argument that her current circumstances do not warrant the termination of her parental rights. However, the facts supporting the mother in Ex parte T.V. are distinguishable from the facts in the instant case. In Ex parte T.V., DHR received custody of T.V.’s child in 1999 amid allegations that T.V. was addicted to drugs, unemployed, incarcerated, and homeless. 971 So.2d at 2. However, by 2004, when the petition to terminate T.V.’s parental rights was filed, T.V. had made “progress” and had “met the goals DHR originally set for her” as part of an ISP. 971 So.2d at 3. At the time of the termination hearing, T.V. was no longer homeless, had married the father of the child, had been both drug-free and regularly employed for almost two years, and had contributed to the support of the child.

In the instant case, the mother admits on appeal that she did not meet the goals DHR set for her as part of her ISP. Unlike the mother in Ex parte T.V., the mother in this case waited until three months before the termination hearing to begin working towards reunification with the child. The mother did not make significant progress over the course of the 20 months that the child was in DHR’s custody.

We cannot agree with the mother’s position that the trial court erred by not allowing the child to remain in DHR’s custody for however long it would take the mother to meet the goals DHR had set for her. This would only serve the mother’s best interests and not those of the child. “It is the consideration of the best interests of the child that lies at the heart of every proceeding to terminate parental rights. L.G. [v. State Dep’t of Human Resources, 603 So.2d 1100 (Ala.Civ.App. 1992) ].” H.M.W. v. Mobile County Dep’t of Human Res., 631 So.2d 1049, 1050 (Ala. Civ.App.1993). Therefore, we affirm the judgment of the trial court.

AFFIRMED.

PITTMAN, BRYAN, and MOORE, JJ., concur.

THOMAS, J., concurs specially.

THOMAS, Judge,

concurring specially.

I concur in affirming the judgment terminating the mother’s parental rights. Because the mother compares her situation to that of the mother in Ex parte T.V., 971 So.2d 1 (Ala.2007), and because she argues that her current circumstances do not warrant the termination of her parental rights, I take this opportunity to explain how I believe T.V. should be interpreted, why this mother’s circumstances are different from those in T.V., and how cases involving a parent’s “recent progress” should be analyzed.

In T.V., the mother was a former unemployed, homeless, crack cocaine addict who arguably had abandoned her child before DHR petitioned to terminate her parental rights. DHR had had grounds to terminate the mother’s parental rights four years earlier, but it had declined to do so. By the time the termination petition was heard, however, the mother had completely turned her life around. She had not only conquered her drug addiction but had also begun to counsel others to avoid drugs; she was married, gainfully employed, and active in her church. When DHR’s termination petition was heard, there were, quite simply, no grounds for termination of T.V.’s parental right. When the termination petition was heard in the present case, the mother had made recent progress in meeting some of the goals set for her in the ISP, but DHR had grounds for termination of the mother’s parental rights because the mother had not met all the goals set out for her.

When the evidence indicates that a parent has made recent progress toward improving the conditions that led to the child’s becoming dependent, and the parent argues that DHR’s decision to terminate parental rights is unwarranted or premature because, the parent says, his or her recent progress indicates that he or she is capable of achieving reunification with the child, the juvenile court should determine

“whether the parent’s recent progress [is] substantial and consistent and, therefore, indicative of a willingness and ability to maintain that progress, or whether the parent’s efforts [are] late, incomplete and, therefore, unconvincing, measures taken only in anticipation of the termination-of-parental-rights hearing.”

J.D. v. Cherokee County Dep’t of Human Res., 858 So.2d 274, 277 (Ala.Civ.App. 2003). See also V.O. v. State Dep’t of Human Res., 876 So.2d 1151, 1157 (Ala. Civ.App.2003); P.W. v. State Dep’t of Human Res., 822 So.2d 423 (Ala.Civ.App. 2001); V.M. v. State Dep’t of Human Res., 710 So.2d 915 (Ala.Civ.App.1998); L.A.G. v. State Dep’t of Human Res., 681 So.2d 596 (Ala.Civ.App.1996); and Bowman v. State Dep’t of Human Res., 534 So.2d 304 (Ala.Civ.App.1988).

Because the record supports a determination that this mother’s recent progress was only partial and was begun only three months before the termination-of-parental-rights hearing, the juvenile court was authorized to find that the mother’s efforts were “late, incomplete and, therefore, unconvincing, measures taken only in anticipation of the termination-of-parental-rights hearing.” J.D. v. Cherokee County Dep’t of Human Res., 858 So.2d at 277.

      . The trial court also terminated the parental rights of K.S., the child's legal father; however, K.S. did not appeal the termination of his parental rights.

      . The record indicates that DHR held the first ISP meeting with the mother on May 19, 2004; however, the specific goals identified in that ISP were not discussed at the termination hearing.


author: COBB, Judge.

text:
    John HERREN v. STATE.
    CR-04-1593.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 2006.

      John Herren, pro se.
    Troy King, atty. gen., and Madeline Hin-son Lewis, asst. atty. gen., for appellee.
   On Return to Remand,

COBB, Judge.

This court’s opinion of May 26, 2006, remanding this cause for further proceedings based on Ex parte Cole, 842 So.2d 605 (Ala.2002), is hereby withdrawn and the following opinion substituted therefor.

John Herren appeals from the trial court’s summary dismissal of his five Rule 32, Ala. R.Crim. P., petitions. In 1984 Herren was indicted in three cases for robbery in the first degree (CC-84-2876, CC-84-2878, and CC-84-2879), violations of § 13A-8-41, Ala.Code 1975, and in two cases for escape in the third degree (CC-84-2877 and CC-84-2880), violations of § 13A-10-33(a), Ala.Code 1975. After plea negotiations in each case, Herren entered guilty pleas to three charges of second-degree robbery and to two charges of third-degree escape. He was sentenced to 15 years’ imprisonment in each of the four charges, to be served concurrently. No direct appeal was taken. In 2005 he filed five Rule 32, Ala. R.Crim. P., petitions seeking postconviction relief from his convictions. To avoid dismissal pursuant to the two-year-limitations-period preclusion found in Rule 32.2(c), Ala. R.Crim. P., Her-ren attacked the trial court’s jurisdiction to render judgement and to impose sentence in each case. After receiving the State’s motion to dismiss in four of the five cases, the circuit court summarily denied relief in each petition.

Herren appeals, essentially reiterating the jurisdictional claims he raised in his petitions.

In reviewing the circuit court’s denial of Herren’s petitions, we will affirm the judgment of the circuit court “[i]f the circuit court is correct for any reason, even though it may not be the stated reason .... See Roberts v. State, 516 So.2d 936 (Ala.Cr.App.1987).” Reed v. State, 748 So.2d 231, 233 (Ala.Crim.App.1999); Ex parte City of Fairhope, 739 So.2d 35, 39 (Ala.1999); McWilliams v. State, 897 So.2d 437, 450 (Ala.Crim.App.2004), overruled on other grounds, Hunt v. State, 940 So.2d 1041 (Ala.Crim.App.2005).

I.

As to Herren’s escape convictions, as best we can discern, Herren claims that the trial court did not have jurisdiction to render judgment and to impose sentence because, he argues, the indictments were void. According to Herren, the two indictments charging him with escape in the third degree were void because they did not allege that, at the time of his escape, he was under a sentence of imprisonment on a conviction for a criminal offense.

On June 30, 2006, the Alabama Supreme Court decided the case of Ex parte Seymour, 946 So.2d 536 (Ala.2006). The Seymour court held:

“The validity of Seymour’s indictment is irrelevant to whether the circuit court had jurisdiction over the subject matter of this case. A defect in an indictment may be error, see Rule 15.2(d), Ala. R.Crim. P. — or even constitutional error, see Ala. Const., Art. I, § 8 — but the defect does not divest the circuit court of the power to try the case. A defendant who challenges a defective indictment is thus subject to the same preclusive bars as one who challenges any other nonju-risdictional error, such as illegal seizure or a violation of the Confrontation Clause.”

946 So.2d at 539. Because Herren’s challenge to the validity of his indictment is a nonjurisdictional claim, it is precluded by Rule 32.2(c), Ala. R.Crim. P., because the petition was filed outside the limitations period, and by Rules 32.2(a)(3) and (5), Ala. R.Crim. P., because the claim could have been, but was not, raised at trial and on appeal.

Moreover, § 13A-10-33(a), Ala. Code 1975, defines the offense of escape in the third degree as follows: “A person commits the offense of escape in the third degree if he escapes or attempts to escape from custody.” Here, the indictment in ease no. CC-84-2877 charged that Herren did “escape or attempt to escape from the custody of Charles Wyatt, District Court Bailiff of Jefferson County.” (CR. 134.) The indictment in case no. CC-84-2880 charged that Herren did “escape from the custody of Jerome Weldon” (CR. 345.) Both indictments are sufficient to charge escape in the third degree.

“ ‘Section 13A-10-33, by definition is a “catchall” statute for escapes. It is applicable to all escapes, including those from city or county jails or from city or county jail officials.... It applies to escapes from “any detention pursuant to a lawful arrest or court order.” See, Ala. Code §§ 13A-10-31 through 13A-10-33 Commentary (1975).’ ”

Long v. State, 675 So.2d 532, 534 (Ala. Crim.App.1996) (quoting Abernathy v. State, 462 So.2d 960, 961 (Ala.Crim.App. 1984) (emphasis added in Abernathy)). Thus, the trial court’s denial of relief as to Herren’s escape convictions is affirmed.

Thus, Herren is entitled to no relief on this claim.

II.

In his petitions and on appeal Her-ren alleges that the trial court lacked jurisdiction to accept his guilty pleas to second-degree robbery because, he argues, second-degree robbery was not a lesser-included offense of first-degree robbery as charged in his indictment. Specifically, Herren argued that the first-degree-robbery indictments did not allege that he was aided in the commission of the robbery by another person and they were never amended to include such an allegation. Herren relies on Ex parte Cole, 842 So.2d 605 (Ala.2002), wherein the Alabama Supreme Court stated:

“When ... 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.”

Ex parte Cole, 842 So.2d at 609. See also Toliver v. State, 881 So.2d 1070, 1074 (Ala. Crim.App.2003)(“[T]he 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.”).

Although Herren’s claim is couched in jurisdictional terms, it is not truly jurisdictional. As stated in Part I of the opinion, the Alabama Supreme Court in Ex parte Seymour, supra, held that the validity of an indictment is “irrelevant” to a circuit court’s subject-matter jurisdiction. Following Seymour, in Taylor v. State, 953 So.2d 429, 431 (Ala.Crim.App.2006), this Court recognized that Ex parte Seymour, had implicitly overruled Ex parte Cole and its progeny. Accordingly, because this claim is not jurisdictional, it is precluded by Rules 32.2(a)(3) and (a)(5) and Rule 32.2(c), Ala. R.Crim. P.

Thus, Herren is entitled to no relief on this claim.

HOLDING

Based on the above, this Court’s opinion of May 26, 2006, remanding this cause to the circuit court with directions is withdrawn. This cause is once again remanded to the circuit court for that court to set aside its order of July 5, 2006, in which the circuit court reinstated the charge of robbery in the first degree and placed the case on a circuit court trial docket. The circuit court is to take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 28 days of the release of this opinion.

OPINION OF MAY 26, 2006, WITHDRAWN; REMANDED WITH DIRECTIONS.

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

      . The State conceded that a hearing was warranted in case no. CC-84-2879.

       Note from the reporter of decisions: On May 11, 2007, on return to second remand, the Court of Criminal Appeals affirmed, without opinion.


author: BASCHAB, Presiding Judge.

text:
    Michael Odell JACKSON v. STATE of Alabama.
    CR-05-2017.
    Court of Criminal Appeals of Alabama.
    March 2, 2007.

      Glenn L. Davidson, Mobile, for appellant.
    Troy King, atty. gen., and Jean A. Ther-kelsen, asst. atty. gen., for appellee.
   BASCHAB, Presiding Judge.

The appellant, Michael Odell Jackson, was convicted of two counts of second-degree robbery, in violation of § 13A-8-42(a), Ala.Code 1975, and one count of third-degree robbery, in violation of § 13A-8-43(a)(l), Ala.Code 1975. The trial court sentenced him to serve consecutive terms of twenty years in prison on the second-degree robbery convictions, but split the sentences and ordered him to serve five years followed by five years on supervised probation. It also sentenced him to serve a consecutive term of ten years in prison on the third-degree robbery conviction, but split the sentence and ordered him to serve three years in prison followed by five years on supervised probation. The appellant did not file any post-trial motions. This appeal followed.

The victim, Jennifer Ramige, testified that she was walking toward her residence in Pine Bend Apartments around 9:00 p.m. or 9:15 p.m. on August 1, 2005, holding her sleeping two-year-old child. As she was putting her key into her door, she heard someone running behind her and turned around. Shortly thereafter, a man she later identified as the appellant rushed toward her, tugged her purse a couple of times, yanked her purse off of her arm, and ran away.

Kelvin Deeds testified that he and the appellant got together and smoked marijuana one day in August 2005. He admitted that, afterward, he helped the appellant commit a robbery at Lafayette Square Apartments. He also testified that the appellant committed a second robbery at Pine Bend Apartments, but stated that he stayed in the vehicle and did not help with that robbery. Ultimately, he was charged with two counts of robbery, but pled guilty to one count of second-degree robbery.

Detective Charles Bagsby of the Mobile Police Department testified that he investigated the robbery involving Jennifer Ram-ige; that she tentatively identified the appellant in a photographic spread on August 14, 2005; and that Kelvin Deeds implicated the appellant in the robbery of Ramige. He also testified that the appellant made a statement in which he contended that Deeds robbed Ramige and that he remained in the vehicle.

I.

The appellant argues that the State did not establish a prima facie case of second-degree robbery with regard to Ramige in case number CC-06-210. Specifically, he contends that “there was no evidence that he was aided by another person actually present.” (Appellant’s brief at p. 18.)

“A person commits the crime of robbery in the second degree if he violates Section 13A-8-43 and he is aided by another person actually present.”

§ 13A-8-42(a), Ala.Code 1975.

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

§ 13A-8-43(a), Ala.Code 1975.

This court addressed a similar situation in Fantroy v. State, 560 So.2d 1143, 1144 (Ala.Crim.App.1989), and held as follows:

“The State’s evidence, viewed in its most favorable light, shows that Robert Lynch, one of two codefendants, grabbed a purse from Mrs. Kathryn Hannon after a brief struggle. Lynch fled a distance on foot, jumped a chain link fence, and got into a white Cadillac driven by the defendant. The evidence is uncontradicted that only one person actually stole the purse and that the defendant was not physically present when that taking occurred.
“The indictment specifically charged the defendant with a violation of Ala. Code 1975, § 13A-8-42. ‘A person commits the crime of robbery in the second degree if he violates section 13A-8-43 [robbery in the third degree] and he is aided by another person actually present.’ (Emphasis added.) ‘Robbery in the second degree, § 13A-8-42, requires that at least two robbers be present.’ Commentary to § 13A-8-42. ‘Where an accomplice to a robbery acts solely as the getaway driver and participates in neither the threat of force, its use, nor the taking of property, and is not in the immediate vicinity of the robbery or so positioned as to be capable of rendering assistance to the robber, he is not “another person actually present” within the meaning of the aggravating accomplice factor of robbery, second degree.’ People v. Hedgeman, 70 N.Y.2d 533, 523 N.Y.S.2d 46, 517 N.E.2d 858 (1987) (getaway driver was actually present). Under the facts presented, the defendant could be guilty, as a matter of law, only of robbery in the third degree.
“The trial judge should have granted the defendant’s motion for a directed verdict of acquittal as to robbery in the second degree and should have instructed the jury on robbery in the third degree.
“Therefore, this case is remanded with directions that the defendant’s conviction for second degree robbery be set aside and that the defendant be adjudged guilty of third degree robbery and sentenced accordingly.”

Also, in Ex parte Lynch, 587 So.2d 303, 304 (Ala.1990), the Alabama Supreme Court stated, “We hold that the Court of Criminal Appeals in Fantroy correctly interpreted § 13A-8-42.”

In this case, Ramige testified that the appellant was the only person who approached her and took her purse. Also, Deeds stated that he stayed in the vehicle while the appellant went to Pine Bend Apartments and robbed another person. As in Fantroy, the State did not present evidence that the appellant was aided by another person who was actually present when he took Ramige’s purse and did not present evidence that Deeds was so positioned as to be capable of rendering assistance to the appellant. Therefore, it did not establish a prima facie case of second-degree robbery with regard to Ramige.

However, the trial court instructed the jury as follows:

“I will tell you the only difference in the laws in the State of Alabama between Robbery in the Second Degree and Robbery in the Third Degree is the third element in Robbery in the Second Degree, and that is, that the person was aided by another person who was actually present. Other than that, the elements are the same.”

(R. 375.) By convicting the appellant of second-degree robbery, the jury necessarily found him guilty of third-degree robbery. Also, the evidence presented during the trial clearly supported a conviction for the lesser included offense of third-degree robbery in that case. “Appellate courts have the ‘inherent authority to reverse a conviction while at the same time ordering an entry of judgment on a lesser included offense.’ Edwards v. State, 452 So.2d 506, 507 (Ala.Crim.App.1983), aff'd, 452 So.2d 508 (Ala.1984).” Campbell v. State, 555 So.2d 252, 254 (Ala.Crim.App.1989). Accordingly, we remand this case to the trial court with instructions that it enter a judgment of guilty of the lesser included offense of third-degree robbery and impose a sentence for that offense.

II.

The appellant also argues that the trial court erroneously prevented him from impeaching Ramige with what he alleges was a prior inconsistent statement. Specifically, he contends that the trial court should have allowed him to present testimony from his mother that, during the preliminary hearing in this case, when Ramige was asked if she recognized the appellant, she said, “ ‘Not for sure.’ ” (R. 335.)

With regard to extrinsic evidence about a prior inconsistent statement of a witness, Rule 613(b), Ala. R. Evid., provides, in part:

“Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness has been confronted with the circumstances of the statement with sufficient particularity to enable the witness to identify the statement and is afforded an opportunity to admit or to deny having made it.”

In this case, the defense did not confront Ramige with the circumstances surrounding the making of the alleged statement with sufficient particularity for her to be able to identify the statement and to properly admit or deny having made the statement. In fact, when cross-examining Ramige, defense counsel did not make any reference at all to the alleged prior inconsistent statement. Therefore, the defense did not establish a sufficient predicate to present extrinsic evidence through the appellant’s mother about any alleged prior inconsistent statement Ramige made during the preliminary hearing. See Rule 613(b), Ala. R. Evid. Accordingly, the trial court did not err when it did not allow the appellant’s mother to testify about any alleged prior inconsistent statement Ramige made during the preliminary hearing.

III.

Finally, the appellant argues that “[t]he trial court erred in refusing to grant the defendant’s motion for mistrial after it was disclosed that the State failed to produce evidence of a photo spread identification involving the victim in which the victim’s identification of the defendant was ‘tentative.’ ” (Appellant’s brief at p. 30.) After the jury had been selected and sworn and the trial court had given its preliminary instructions, the following occurred:

“THE COURT: [Defense counsel], you had some motions?
“[DEFENSE COUNSEL]: Yes, Your Honor, I wanted to make a brief motion as to a Brady violation by the State, Judge. At this time, there was a photo spread involved in this case, I spoke with the witness, Jennifer Ramige, who told me that Detective Charles Bagsby approached her and showed her a photo spread that included six African-American males on it and she was able to identify my client, Mr. Jackson, as the one that was involved in the robbery. Your Honor, there’s evidence to support that, under oath, given by Detective Pierce.
“THE COURT: Okay. But what—
“[DEFENSE COUNSEL]: Your Honor, my motion is that this should be a mistrial. The photo spread was never given to the defense and I asked specifically for it in a motion for discovery. And if you’ll recall, [the prosecutor] said that day, ‘Judge, I don’t know what he’s talking about, I’ve talked to the detectives, I’ve talked to the victims, there was never a photo spread.’
“THE COURT: Okay. [Prosecutor].
“[PROSECUTOR]: Yes, Judge. That is correct and I spoke with Detective Bagsby this morning. The correct statement about what happened was this morning I spoke with one of the witnesses who did say, T think I was shown a photo spread.’ I went back to the Detective, I said, ‘[D]id you show her one?’ He said, ‘I’ve looked, I can’t find it.’ He did end up finding it. The photo spread did not positively identify his client. It was inconclusive. The witnesses here will say inconclusive. The State does not have any — any intentions on presenting that, bringing that up, it was an inconclusive photo spread. I was never given a copy of it, Judge, I—
“THE COURT: Okay. And where is the photo spread at now?
“[PROSECUTOR]: I believe it may be in the detective’s file and the witness will say she was not able to look at it and make a determination and it actually says, I believe it — does it say inconclusive or—
“THE DETECTIVE: It says tentative ID.
“[PROSECUTOR]: Yeah, could — tentatively could not ID the person.
“THE COURT: What are you requesting, [defense counsel]?
“[DEFENSE COUNSEL]: Judge, that violates Brady.
“THE COURT: What are you requesting, sir?
“[DEFENSE COUNSEL]: I’m requesting that all of these cases be dismissed. The victims were shown—
“THE COURT: Are you requesting that the cases be dismissed?
“[DEFENSE COUNSEL]: Yes, Judge, with prejudice, they were shown—
“THE COURT: Under what grounds? What legal authority?
“[DEFENSE COUNSEL]: Legal authority that I offered, Judge, is that under the Brady case, the defense is entitled to all exculpatory material. Judge, you entered an order saying that they had to produce this to us by the Friday after I filed the motion and we heard the motion, Judge, they have.
“THE COURT: When did you find out the photo spread exist — existed?
“[DEFENSE COUNSEL]: Judge, I knew it existed when we had the docket, I said it to you, ‘Judge, there is a photo spread in this case, they have not produced it.’
“THE COURT: Okay. But if they violated my order and you [were] aware of that, why didn’t you bring it to the attention of the Court?
“[DEFENSE COUNSEL]: Judge, the representation by [the prosecutor] was that she had talked to the detective, she had talked to the victims, there was no photo spread.
“THE COURT: Okay. Motion to dismiss is denied.
“[DEFENSE COUNSEL]: Judge, I would further ask that the photo spread be given to us, the reason why—
“THE COURT: Yes, sir, they’ll give it to you right now.
“[PROSECUTOR]: Judge, we don’t intend — •
“THE COURT: Just a moment, please. They’ll give it to you right now, anything else you are requesting?
“[DEFENSE COUNSEL]: Yes, Your Honor, I would ask that all of the witnesses or the victims who were shown the photo spread and could not identify Mr. Jackson as the person whose done this, Judge, that’s exculpatory—
“THE COURT: Okay. What are you requesting, sir?
“[DEFENSE COUNSEL]: — that needs to be handed over as well. A list of all of the victims and the circumstances that they looked at this and—
“THE COURT: Okay. [Prosecutor], you are to furnish to the opposing counsel, any — the name of any witness that was shown that photo spread and the results of what their comments to the detective.
“[PROSECUTOR]: I will, Judge. Can I have a moment — well I don’t have any notations of any of that, we don’t have anything — my only understanding is Ms. Ramige, and it was a tentative. I will make sure and verify with them, if you’d like. Judge, the only knowledge I have is one witness who tentatively and could not identify positively as to who it was and so, therefore, the State was not intending to use it and I was just shown this, this morning and that’s the only information that I have. I will go meet with them to verify if anybody else said anything—
“THE COURT: Well, the witnesses are in the courtroom now; correct?
“[PROSECUTOR]: Yeah, and there’s no notations in the narrative regarding that.
“THE COURT: Okay. Any of the witnesses present in this case was shown a photo spread other than Ms. Ramige? Okay. Please deliver the photo spread to [defense counsel]. [Defense counsel], that’s it. Anything else?
“[DEFENSE COUNSEL]: Judge, I would like the record to reflect, just so I can preserve any error for appeal, that’s possible in this case, that I did file a motion for discovery, that Brady material was specifically requested, and that Your Honor, on the date of the hearing that we had in court, said that all Brady material was to be provided to the defense from the State on the Friday after the hearing.
“THE COURT: The record speaks for itself. Anything else?
“[DEFENSE COUNSEL]: No, Your Honor.”

(R. 71-76.)

“The imposition of sanctions upon noncompliance with a court’s discovery order is within the sound discretion of the court. United States v. Koopmans, 757 F.2d 901, 906 (7th Cir.1985); United States v. Saitta, 443 F.2d 830, 831 (5th Cir.1971); Hansen v. United States, 393 F.2d 763, 770 (8th Cir.1968). Moreover, the trial court should not impose a sanction which is harsher than necessary to accomplish the goals of the discovery rules. United States v. Gee, 695 F.2d 1165, 1169 (9th Cir.1983).”

McCrory v. State, 505 So.2d 1272, 1279 (Ala.Crim.App.1986). Also,

“ ‘[t]ardy disclosure of Brady material is generally not reversible error unless the defendant can show that he was denied a fair trial. United States v. Gordon, 844 F.2d 1397 (9th Cir. 1988); United States v. Shelton, 588 F.2d 1242 (9th Cir.1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2822, 61 L.Ed.2d 275 (1979); Ex parte Raines, 429 So.2d 1111 (Ala.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1804, 76 L.Ed.2d 368 (1983); McClain v. State, 473 So.2d 612 (Ala.Cr.App.1985). A delay in disclosing Brady material requires reversal only if “the lateness of the disclosure so prejudiced appellant’s preparation or presentation of his defense that he was prevented from receiving his constitutionally guaranteed fair trial.” United States v. Shelton, 588 F.2d at 1247 (quoting United States v. Miller, 529 F.2d 1125, 1128 (9th Cir.), cert. denied, 426 U.S. 924, 96 S.Ct. 2634, 49 L.Ed.2d 379 (1976)).’
“[Coral v. State,] 628 So.2d [954,] 980 [ (Ala.Crim.App.1992), aff'd, 628 So.2d 1004 (Ala.1993) ].”

Ward v. State, 814 So.2d 899, 919 (Ala.Crim.App.2000).

In this case, the record does not indicate that the State intentionally suppressed the photographic spread. In fact, it does not appear that the prosecutor was ever given a copy of the photographic spread. Also, the trial court made the photographic spread available to the defense immediately after defense counsel’s motion and questioned the other witnesses as to whether they had been shown a photographic spread. Finally, the defense thoroughly cross-examined Ramige about the photographic spread and the fact that law enforcement officials classified her identification of the appellant as tentative. Under these circumstances, the appellant has not shown that he was prejudiced by the State’s late disclosure of the photographic spread or that he did not receive a fair trial as a result of the late disclosure. Therefore, the trial court did not abuse its discretion when it did not grant a mistrial on this ground.

For the above-stated reasons, we affirm the appellant’s convictions and sentences for second-degree robbery in case number CC-06-209 and third-degree robbery in case number CC-06-212. However, we reverse his conviction for second-degree robbery in case number CC-06-210 and remand the case to the trial court with instructions that it enter a judgment of guilty of the lesser included offense of third-degree robbery and impose a sentence for that offense. The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 28 days after the release of this opinion. The return to remand shall include a transcript of the remand proceedings conducted by the trial court.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

      . The appellant does not challenge his remaining convictions in his brief to this court.

      . To the extent the appellant argues that the State improperly questioned Ramige about the out-of-court identification, his argument is not properly before this court because he did not first present it to the trial court. See Newsome v. State, 570 So.2d 703, 716 (Ala.Crim.App.1989) (noting that "[rjeview on appeal is limited to review of questions properly and timely raised at trial”).