author: BRYAN, Judge.

text:
    Annette JOHNSON v. GARY L. JESTER, P.C., d/b/a Jester and Jenkins.
    2040799.
    Court of Civil Appeals of Alabama.
    May 5, 2006.
    Michael L. Weathers, Florence, for appellant.
    Patrick J. Thomas, Florence, for appel-lee.
   BRYAN, Judge.

The defendant Annette Johnson appeals a summary judgment in favor of the plaintiff Gary L. Jester, P.C., d/b/a Jester and Jenkins (“Jester”). We reverse and remand.

On June 5, 2001, Jester, a law firm, sued Johnson. Jester alleged that Johnson had employed it to represent her in a grandparent-visitation proceeding and to perform other legal work related to her deceased daughter’s estate and that Johnson owed Jester a total of $8,055.85 in unpaid fees. Jester sought recovery of the $8,055.85 pursuant to three theories: -(1) breach of contract, (2) account stated, and (3) quantum meruit. Jester did not demand a jury trial.

In her answer, Johnson denied that she owed Jester any fees and asserted the affirmative defenses of setoff, payment, satisfaction, and the Statute of Frauds. Johnson demanded a jury trial.

In October 2004, Jester filed a summary-judgment motion, which the trial court denied on a procedural ground without addressing the merits of the motion. In January 2005, Jester filed an amended complaint in which it dismissed its claims alleging breach of contract and account stated and again alleged the same claim of quantum meruit it had alleged in its original complaint. That same day, Jester moved for a summary judgment on its quantum meruit claim. Jester also filed a motion to strike Johnson’s demand for a jury trial on the ground that Johnson was not entitled to a jury trial on Jester’s quantum meruit claim.

In response, Johnson filed a pleading in opposition to Jester’s summary-judgment motion, moved the trial court to strike Jester’s amended complaint, and filed a pleading in opposition to Jester’s motion to strike Johnson’s demand for a jury trial.

Jester supported its summary-judgment motion with, among other things, a copy of a check dated June 1, 2000, that Johnson had made payable to Jester; copies of the letters Jester had sent Johnson while it was representing her; copies of the bills Jester had sent Johnson while it was representing her; and the affidavit of Willson Jenkins (“Jenkins”), the Jester attorney who had dealt with Johnson. In pertinent part, Jenkins’s affidavit stated:

“I am a partner in the law firm of Gary Jester, P.C., an Alabama professional corporation doing business as ‘Jester & Jenkins.’ The defendant, Annette Johnson, and I consummated an attorney-client relationship in June 2000. In particular, I provided legal services to the defendant in her attempt to obtain visitation rights with her grandson .... I also investigated and handled several probate issues concerning the defendant’s deceased daughter’s estate. The services that I provided were beneficial to the defendant: for example, she obtained visitation rights with her grandson. The defendant was unhesitatingly and knowingly accepting of both the legal services I provided, and the benefits obtained from those services.
“Understandably, I expected to be reasonably compensated for the legal services provided to the defendant. The defendant paid a retainer fee on June 1, 2000. (See [a copy of Johnson’s check made payable to Jester with ‘retainer fee’ written on it]). It was my understanding, as well as that of the defendant’s, that this was only the initial payment — the first installment, if you will, paid by the defendant to reasonably compensate me for my services to her. In fact, I informed the defendant that she could expect the legal services to cost up to $15,000 for trial due to the fact that her legal issue was one of first impression in Alabama.
“I documented the number of hours and the type of work provided to the defendant. I submitted three different billing statements to the defendant, informing her of how much she owed the plaintiff. The defendant did not object, or say this wasn’t our agreement. In fact, the defendant said she was raising the money through a Halloween fundraiser, and told me that the ‘cost was not a problem.’ ”

Johnson opposed Jester’s summary-judgment motion with her affidavit and the affidavit of a friend who had accompanied her to Jester’s office on one occasion. In pertinent part, Johnson’s affidavit stated:

“When I first met with R. Willson Jenkins on June 1, 2000, R. Willson Jenkins told me that his hourly fee rate was One Hundred Twenty-Five Dollars and No Cents ($125.00). I told R. Willson Jenkins my husband was off of work due to an injury and my husband and I were totally dependant upon my hourly wages. I told R. Willson Jenkins that I could not afford to pay him $125.00 per hour to represent me. I told R. Willson Jenkins the only way I could employ him to represent me would be if he could tell me the exact total amount of what his attorney fees would be to represent me, and, if he could not do that, I would have to get another attorney to represent me.
“On June 1, 2000, R. Willson Jenkins told me he would represent me for the flat total attorney’s fee of Nine Hundred Seventy-Five Dollars and No Cents ($975.00) plus the expenses of any deposition^), subpoenas, and court costs.
“On June 1, 2000, R. Willson Jenkins and I entered into a verbal employment agreement that R. Willson Jenkins would represent me for the total amount of attorney fees of Nine Hundred and Seventy-Five Dollars and No Cents ($975.00). On June 1, 2000, I wrote a personal check made payable to R. Will-son Jenkins for the amount of One Thousand Dollars and No Cents ($1,000.00) — $975.00 for the total attorney’s fees that R. Willson Jenkins told me he would represent me for plus $25.00 toward the payment of costs and expenses. R. Willson Jenkins and I never reduced our verbal employment agreement to writing.
“R. Willson Jenkins and the Law Firm of Jester and Jenkins could never have had a reasonable expectation that I could pay them more in attorney fees than the Nine Hundred Seventy-Five Dollars and No Cents ($975.00) I paid to R. Willson Jenkins on June 1, 2000. I made it perfectly clear to R. Willson Jenkins that I did not have the means or wherewithal to pay any more in attorney fees. On June 1, 2000, R. Willson Jenkins told me that he understood and that the Nine Hundred Seventy-Five Dollars and No Cents ($975.00) would be all that I would have to pay in attorney’s fees.”

The trial court held a hearing on all pending motions on February 10, 2005. Johnson argued that the trial court should strike Jester’s amended complaint because Jester had not complied with Rule 15(a), Ala. R. Civ. P. Specifically, Johnson argued that, because Jester amended its complaint less than 42 days before the first trial setting, Rule 15(a) required that Jester first obtain leave of the trial court to file its amended complaint, a requirement that Jester had not met. Johnson also argued that Rule 41(a)(2), Ala. R. Civ. P., prohibited Jester from unilaterally dismissing its breach-of-contract and account-stated claims so late in the proceedings.

With regard to the merits of the summary-judgment motion, Johnson argued, among other things, that her affidavit testimony established a genuine issue of material fact regarding one of the essential elements of Jester’s quantum meruit claim. Specifically, she argued that Jester was required to prove, as an essential element of its. quantum meruit claim, that Jester had a reasonable expectation that it would be paid more than a flat fee of .$975.00 for its services and that Johnson’s affidavit testimony to the effect that Jenkins had agreed to provide the legal services for a flat fee of $975.00 established the existence of a genuine issue of material fact regarding that essential element.

On February 23, 2005, the trial court entered a judgment denying Johnson’s motion to strike Jester’s amended complaint and entering a summary judgment in favor of Jester on its quantum meruit claim. Explaining the trial court’s rationale for entering a summary judgment in favor of Jester, the judgment, in pertinent part, stated:

“The law in Alabama regarding quantum meruit is ‘that if one knowingly accepts services rendered by another and the benefit and result thereof, the law implies a promise on the part to the one that so accepts with knowledge, to pay the reasonable value of such services rendered.’ CIT Group/Equipment Fin., Inc. vs. Roberts, 885 So.2d 185, 190 (Ala.Civ.App.2003). The Plaintiff must also demonstrate that he had a reasonable expectation of compensation. Id. Finally, the measure of damage for a successful claim based on the theory of quantum meruit is the reasonable value to the benefactor of the services provided. Beltline, Inc. vs. Powell, 371 So.2d 920, 924 (Ala.Civ.App.1979).
“(1) [Johnson] knowingly accepted the legal services provided to her by [Jester]. There is no issue of fact with respect to this first element. [Johnson’s] affidavit conclusively established that she knowingly accepted the legal services provided by [Jester]. See Affidavit of Annette Johnson. In other words, [Johnson] was aware that R. Willson Jenkins was her lawyer. [Johnson] did not terminate the attorney/client relationship until after the Lauderdale County Circuit Court granted, as a result of [Jester’s] legal services and representation, grandparental visitation rights to [Johnson].
“(2) [Jester] established a prima facie case that there was no genuine issue of material fact concerning whether it had a reasonable expectation of being compensated at an hourly rate for the legal services provided to [Johnson]. [Johnson] failed to provide substantial evidence rebutting [Jester’s] prima facie case and thus creating a genuine issue of material fact concerning this issue.
“(b) [Johnson] fails to set forth substantial evidence rebutting the prima fa-cie showing made by [Jester]. [Johnson] submitted affidavits by Annette Johnson and Rebecca Johnson with her response to [Jester’s] motion for summary. judgment. [Johnson] submitted no other evidence to rebut the prima facie showing made by [Jester]. (Mov-ant’s [sic] affidavit was insufficient to create a genuine issue of material fact.) Robertson vs. Woodward, 607 So.2d 198, 199 (Ala.1992).
“Importantly, neither the affidavit of Annette Johnson nor the affidavit of Rebecca Johnson represent substantial evidence rebutting [Jester’s] prima facie showing. First, neither affidavit explains why [Johnson] wrote ‘retainer fee’ on the initial check she submitted to [Jester] on June 1, 2000, if, as she says, [Jester] was only charging her a $975.00 flat fee.
“Second, the affidavits fail to substantially discuss or rebut the inferences to be drawn from the billing statements, accompanying letters and proposed promissory note submitted by [Jester] to [Johnson]. For example, [Johnson’s] affidavit does not explain why [Jester] submitted billing invoices and proposed promissory note (for the total sum of $8,055.00) where [Johnson] alleges that [Jester] only expected to be paid the $975.00 flat fee. [Johnson] did not object to these billing invoices nor complaint ] to [Jester] that this was not the agreement previously agreed to by the parties. See affidavit of R. Willson Jenkins. [Johnson’s] affidavit also fails to deal with the inconsistency between the fact that she paid [Jester] a second $1,000.00 on January 18, 2001 (for $2,000 total) and her contention that [Jester] agreed to represent her for a $975.00 flat fee.
“[Johnson] failed to present substantial evidence rebutting [Jester’s] prima facie showing. [Johnson] therefore failed to create a genuine issue of material fact on the question of whether [Jester] held a reasonable expectation of being compensated at any hourly rate.
“(3) [Jester’s] motion, and attachments thereto, conclusively establish the reasonable value of the legal services provided by [Jester]. [Jester] attached to its summary judgment motion billing invoices compiled by [Jester] and submitted to [Johnson] during the attorney/client relationship. The invoices set forth the amount of time spent by [Jester], along with the specific type of legal service provided. The invoices further show that [Jester] billed [Johnson] at a rate of $125.00 per hour. Importantly, [Johnson] contested only whether [Jester] held a reasonable expectation of being compensated at an hourly rate. [Johnson] failed to present substantial evidence on the issue of whether the rate of $125.00 per hour is a reasonable rate to be charged for the legal services provided to [Johnson], As such, there is no genuine issue of material fact concerning the issue of reasonable value of the services performed.”

The judgment did not rule on Jester’s motion to strike Johnson’s demand for a jury trial — presumably because the entry of a summary judgment in favor of Jester rendered that motion moot.

On March 24, 2005, Johnson filed a Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate the judgment. As a ground for the motion, Johnson asserted that the trial court had erred in denying her motion to strike Jester’s amended complaint because, Johnson said, Jester had not complied with the requirements of Rules 15(a) and 41(a)(2). With respect to the summary judgment in favor of Jester, Johnson argued, among other things, that the summary judgment was erroneous because, she said, her affidavit testimony had established the existence of a genuine issue of material fact regarding whether Jester had a reasonable expectation of receiving more than a flat fee of $975.00 for the legal services it provided Johnson.

Following a hearing on Johnson’s post-judgment motion, the trial court, on May 18, 2005, entered an order denying that motion. Johnson then timely appealed to this court.

On appeal, Johnson argues that the trial court erred in allowing Jester to amend its complaint because the amendment of the complaint at such a late stage of the proceedings prejudiced her. “ ‘ “ ‘[T]he grant or denial of leave to amend is a matter that is within the discretion of the trial court and is subject to reversal on appeal only for an abuse of discretion.’ ” ’ ” Deakle v. Childs, 939 So.2d 936, 939 (Ala.Civ.App.2006) (quoting Rector v. Better Houses, Inc., 820 So.2d 75, 78 (Ala.2001), quoting in turn Boros v. Baxley, 621 So.2d 240, 245 (Ala.1993)). Jester’s amendment neither alleged a new factual basis for a claim nor alleged a new theory of recovery; it merely dismissed two of Jester’s claims. Therefore, the amendment neither caused a delay in the litigation nor prejudiced Johnson. Accordingly, we find no abuse of discretion in the trial court’s allowing the amendment.

Johnson also argues that the trial court erred in entering a summary judgment in favor of Jester because, she says, her affidavit testimony to the effect that Jenkins agreed to provide her with legal services for a flat fee of $975.00 established the existence of a genuine issue of material fact regarding whether Jester could reasonably expect to receive more than a flat fee of $975.00 for those services. We agree. Johnson’s testimony directly contradicted Jenkins’s testimony. However, instead of denying the summary-judgment motion because of this conflict in the evidence regarding an essential element of Jester’s claim, the trial court purported to eliminate the conflict by rejecting Johnson’s testimony. The trial court found that, in the absence of an explanation by Johnson, the presence of the words “retainer fee” on her June 1, 2000, check and her second payment of $1,000.00 belied her testimony that Jenkins had agreed to a flat fee of $975.00. This court has stated:

“Appellate courts must keep in mind that in reviewing summary judgments, we are to view the evidence in the light most favorable to the nonmovant, and we must draw all reasonable inferences in [the nonmovant’s] favor. Crowne Investments, Inc. v. Bryant, 688 So.2d 873 (Ala.1994). Our task, as well as that of the trial court, is merely to determine whether the nonmoving party has presented sufficient evidence to create a genuine issue of material fact. At the summary judgment stage, we are not to weigh the nonmoving party’s evidence against that of the moving party to determine whose evidence we believe, or whether the moving party has a stronger case, or whether either party has proved his case — we only determine ivhether a genuine issue of material fact exists ....”

Kovalchick v. South Baldwin Hosp., 695 So.2d 1199, 1202 (Ala.Civ.App.1997) (emphasis added). Thus, the trial court erred by weighing and rejecting Johnson’s testimony instead of determining whether Johnson had submitted sufficient evidence to establish a genuine issue of material fact.

Because Johnson’s affidavit testimony established the existence of a genuine issue of material fact regarding the existence of an essential element of Jester’s claim, we must reverse the summary judgment in favor of Jester and remand the case for further proceedings consistent with this opinion. Our resolution of this issue renders the remaining issues raised by Johnson moot.

REVERSED AND REMANDED.

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

      . Johnson cites Rule 41(a)(2), Ala. R. Civ. P., as well as Rule 15(a), Ala. R. Civ. P., in support of this argument. However, Johnson has not cited to us any authority standing for the proposition that Rule 41(a)(2), which deals with a plaintiffs voluntary dismissal of an entire action, applies to an amendment of a complaint that dismisses fewer than all of the plaintiff's claims. In the absence of a citation to authority standing for that proposition, this court need not consider Johnson’s argument with respect to Rule 41(a)(2). See Ex parte Showers, 812 So.2d 277, 281 (Ala.2001).


source: Caselaw Access Project

author: BRYAN, Judge. THOMPSON, Judge,

license: Public Domain

text:
    PEERLESS LANDFILL COMPANY, INC., and Waste Management, Inc. v. HALEYVILLE SOLID WASTE DISPOSAL AUTHORITY.
    2040734.
    Court of Civil Appeals of Alabama.
    May 5, 2006.

      Anthony N. Fox of Scott, Sullivan, Streetman & Fox, P.C., Birmingham, for appellants.
    Jeffery A. Mobley and Michael E. New-ell of Lowe, Mobley & Lowe, Haleyville, for appellee.
   BRYAN, Judge.

Peerless Landfill Company, Inc. (“Peerless”), and Waste Management, Inc. (“Waste Management”), appeal a summary judgment in favor of the Haleyville Solid Waste Disposal Authority (“the Authority”). We reverse and remand.

The Authority controls a landfill in Winston County. In March 1994, Peerless and the Authority entered into a contract (“the Peerless contract”) in which Peerless agreed to operate the landfill for the Authority. Section 6.1 of the Peerless contract contained the following indemnity provision:

“6.1 Hold Harmless. The CONTRACTOR shall hold harmless, indemnify and defend the AUTHORITY, its officers, employees, representatives and agents, from and against any claim, action, loss, damage, injury, liability, cost and expense of whatsoever kind or nature arising out of injury to persons, including death, or damage to property, including any and all costs resulting from environmental contamination, arising out of or incidental to any negligent or intentional act or omission of the CONTRACTOR in the operation of the facility. In the event of joint negligence on the part of the AUTHORITY and the CONTRACTOR, any loss shall be apportioned.

(Emphasis added.) Peerless operated the landfill until April 10, 1996. On April 10, 1996, TransAmerican Waste Industries, Inc. (“TransAmerican”), and the Authority entered into a contract (“the TransAmeri-can contract”) in which TransAmerican agreed to assume Peerless’s rights and obligations under the Peerless contract. TransAmerican and the Authority also agreed, among other things, to amend the indemnity provision in the Peerless contract so that it provided, in pertinent part:

“Hold Harmless. The CONTRACTOR shall hold harmless, indemnify and defend the AUTHORITY, including without limitation the members of its board, its officers, employees, representatives and agents, from and against any claim, action, loss, damage, injury, liability, cost and expense of whatsoever kind or nature (‘Claims’), including Claims alleging injury to persons (including death), or damage to property (including without, limitation environmental contamination or alleged contamination), to the extent such Claim arises out of or [is] related or is incidental to any negligent or intentional act or omission of the CONTRACTOR in the operation of the Facility.”

(Emphasis added.) Subsequent to Trans-American’s assumption of Peerless’s rights and obligations under the Peerless contract, TransAmerican became Waste Management.

Waste Management was operating the landfill on October 9, 1999, when a fire occurred there. Two years later, on October 9, 2001, several individuals who owned property near the landfill (“the individual plaintiffs”) sued the Authority, Peerless, and Waste Management, alleging, among other things, that negligence on the part of the Authority, Peerless, and Waste Management proximately caused the fire to damage the individual plaintiffs’ property. The Authority sent Waste Management a letter demanding that Waste Management defend and indemnify it against the individual plaintiffs’ claims; however, Waste Management did not respond. Therefore, the Authority paid its own attorneys to defend it against the individual plaintiffs’ claims. The Authority also filed a cross-claim against Peerless and Waste Management in which the Authority sought, among other things, contractual indemnity for the amount it had paid its attorneys to defend it against the claims of the individual plaintiffs.

Thereafter, the Authority, Peerless, and Waste Management moved the trial court for summary judgments on the claims of the individual plaintiffs. The trial court granted the Authority’s summary-judgment motion with respect to all of the individual plaintiffs’ claims and granted Peerless and Waste Management’s summary-judgment motion with respect to all of the individual plaintiffs’ claims other than their negligence claim. Subsequently, Peerless and Waste Management paid the individual plaintiffs a sum of money to settle their negligence elaim, although Peerless and Waste Management disclaimed liability in the settlement documents.

The Authority then moved the trial court to enter a partial summary judgment in its favor on its cross-claim against Peerless and Waste Management. Specifically, the Authority sought a summary judgment on the issue of liability with respect to its contractual-indemnity claim. The Authority argued that the indemnity provision of the Peerless contract, as amended by the TransAmerican contract, clearly and unambiguously obligated Peerless and Waste Management to provide the Authority with a defense against the individual plaintiffs’ claims because those claims arose from the operation of the landfill and, therefore, entitled the Authority to recover the attorneys’ fees it had incurred in defending itself against the individual plaintiffs’ claims.

Peerless and Waste Management argued that the Authority was not entitled to the partial summary judgment it sought because: (1) the individual plaintiffs had claimed that the Authority was directly liable for its own negligence rather than claiming that it was vicariously liable for the negligence of Peerless or Waste Management and the indemnity provision did not require Peerless and Waste Management to defend the Authority against claims based on its own negligence; and (2) the indemnity agreement only required Peerless and Waste Management to defend the Authority if Peerless and Waste Management committed negligence or an intentional tort and a genuine issue of material fact existed regarding whether Peerless and Waste Management had committed negligence or an intentional tort in connection with the fire.

The trial court held a hearing and allowed the parties to submit additional evidence in support of, and in opposition to, the partial-summary-judgment motion. On March 16, 2005, the trial court entered an order granting the Authority’s partial-summary-judgment motion without stating its rationale. Thereafter, the trial court received evidence ore tenus regarding the issue of damages and, on April 22, 2005, entered a judgment in favor of the Authority in the amount of $43,238.81, the amount the Authority had paid its attorneys to defend it against the individual plaintiffs’ claims. Subsequently, Peerless and Waste Management timely appealed to this court.

On appeal, Peerless and Waste Management first argue that the trial court erred in entering a partial summary judgment in favor of the Authority with regard to liability on its contractual-indemnity claim because: (1) the clear and unambiguous language of the indemnity agreement conditioned their obligation to indemnify the Authority on Peerless’s or Waste Management’s having committed negligence or an intentional tort; and (2) a genuine issue of material fact existed regarding whether Peerless or Waste Management had committed negligence or an intentional tort in connection with the fire.

In response, the Authority argues that the clear and unambiguous language of the indemnity agreement obligates Peerless and Waste Management to provide the Authority with a defense against all claims arising from the operation of the landfill regardless of whether Peerless or Waste Management had committed negligence or an intentional tort. In the alternative, the Authority, citing Star Electrical Contractors, Inc. v. Stone Building Co., 863 So.2d 1071 (AIa.2003), argues that, regardless of whether the indemnity provision conditions Peerless’s and Waste Management’s obligation to indemnify on their having committed negligence or an intentional tort, their refusal to defend the Authority after the Authority gave them notice of the individual plaintiffs’ claims precludes them from asserting that that condition has not been met.

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

Hunt v. NationsCredit Fin. Servs. Corp., 902 So.2d 75, 83 (Ala.Civ.App.2004).

In determining whether the language of the indemnity provision conditions Peerless’s and Waste Management’s obligation to defend the Authority on Peerless’s or Waste Management’s having committed negligence or an intentional tort, we employ well-established principles of contract interpretation. This court has summarized those principles as follows:

“It is well settled that the words of a contract are to be given their ordinary meaning and that the intention of the parties is to be derived, if possible, from the provisions of the contract itself. Food Serv. Distribs., Inc. v. Barber, 429 So.2d 1025, 1028 (Ala.1983) (citing Sisco v. Empiregas, Inc., 286 Ala. 72, 237 So.2d 463 (1970)). Where a contract, by its terms, is plain and free from ambiguity, there is no room for construction and the contract must be enforced as written. Ex parte Conference America, Inc., 713 So.2d 953, 956 (Ala.1998); Ex parte South Carolina Ins. Co., 683 So.2d 987, 989 (Ala.1996). ‘[A] document is unambiguous if only one reasonable meaning emerges.’ Wayne J. Griffin Elec., Inc. v. Dunn Constr. Co., 622 So.2d 314, 317 (Ala.1993). In other words, ‘[w]hen any aspect of a contract is capable of more than one meaning, it is ambiguous.’ Voyager Life Ins. Co. v. Whitson, 703 So.2d 944, 948 (Ala.1997). When the terms of a contract are ambiguous, the true meaning of the contract becomes a question for the fact-finder. Mooney v. Henderson & Walton Women’s Center-East, Inc., 684 So.2d 1340 (Ala.Civ.App.1996). ‘If one must go beyond the four corners of the agreement in construing an ambiguous agreement, the surrounding circumstances, including the practical construction put on the language of the agreement by the parties to the agreement, are controlling in resolving the ambiguity.’ Voyager Life Ins. Co., 703 So.2d at 949.”

Austin Apparel, Inc. v. Bank of Prattville, 872 So.2d 158, 165 (Ala.Civ.App.2003).

Applying those principles to the indemnity provision now before us, we find that the plain language of the indemnity provision in the TransAmerican contract, as well as the indemnity provision in the Peerless contract it superseded, obligated Peerless and Waste Management to defend the Authority against claims only “to the extent such Claim[s] arise [ ] out of or [are] related or [are] incidental to any negligent or intentional act or omission of the CONTRACTOR in the operation of the Facility.” Thus, the plain language of the indemnity provision required Peerless and Waste Management to defend the Authority only if Peerless or Waste Management had committed negligence or an intentional tort. Had the parties intended to provide that Peerless and Waste Management were obligated to defend the Authority against all claims arising out of the operation of the landfill regardless of whether Peerless or Waste Management had committed negligence or an intentional tort, they could have expressed that intent. For example, they could have stated that Peerless and Waste Management were obligated to defend the Authority against “all claims arising from the operation of the landfill regardless of whether Peerless and Waste Management are liable for those claims.” However, the parties did not express such an intent. Therefore, we conclude that the indemnity provision conditions Peerless’s and Waste Management’s obligation to indemnify the Authority on Peerless’s or Waste Management’s having committed negligence or an intentional tort.

We also find no merit in the Authority’s alternative argument that Star Electrical stands for the proposition that Peerless’s and Waste Management’s refusal to defend the Authority after the Authority gave them notice of the individual plaintiffs’ claims precludes Peerless and Waste Management from asserting that the condition precedent to their obligation to indemnify the Authority has not been met. In Star Electrical, the supreme court reiterated the well-established principle of indemnity law that “ “[w]hen the indemnitor has notice of the claim [against the indemnitee] and refuses to defend [the in-demnitee], the indemnitor is bound by any good faith reasonable settlement [the in-demnitee enters into with the claimant], and the indemnitee need only show [its] potential liability [to the claimant].” ’ ” 863 So.2d at 1075 (quoting Stone Bldg. Co. v. Star Elec. Contractors, Inc., 796 So.2d 1076, 1090 (Ala.2000)). However, Star Electrical does not hold that an indemnitor’s refusal to defend the indemnitee after receiving notice of the claim against the indemnitee precludes the indemnitor from contesting whether the indemnity agreement obligates the indemnitor to indemnify the indemnitee against that claim. Therefore, the Authority’s reliance on Star Electrical is unavailing.

Accordingly, because the plain language of the indemnity provision conditioned Peerless’s and Waste Management’s obligation to indemnify the Authority upon Peerless’s or Waste Management’s having committed negligence or an intentional tort, we must determine whether the Authority established the nonexistence of a genuine issue of material fact regarding whether Peerless or Waste Management committed negligence or an intentional tort in connection with the fire. Neither the denial of Peerless and Waste Management’s summary-judgment, motion with respect to the individual plaintiffs’ negligence claim nor Peerless and Waste Management’s subsequent payment of money to settle that claim constituted an adjudication that they committed negligence or an intentional tort with respect to the fire. Moreover, the Authority did not submit evidence establishing a prima facie case that Peerless or Waste Management committed such torts in support of the Authority’s motion for a partial summary judgment on the issue of liability. Thus, the Authority did not establish the nonexistence of a genuine issue of material fact regarding whether Peerless or Waste Management committed negligence or an intentional tort in connection with the fire. Consequently, the trial court erred in entering a partial summary judgment in favor of the Authority on the issue of liability. See Hunt, supra. Therefore, we must reverse the trial court’s judgment and remand the case for further proceedings consistent with this opinion.

Our resolution of the first issue raised by Peerless and Waste Management pre-termits discussion of the other issue they have raised.

REVERSED AND REMANDED.

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

THOMPSON, J., concurs specially, with writing.

THOMPSON, Judge,

concurring specially.

I agree that the trial court’s entry of a partial summary judgment in favor of the Authority is due to be reversed. The Authority failed to meet its burden before the trial court by not presenting evidence sufficient to establish that the fire at issue arose as a result of the negligent or intentional acts or omissions of Peerless or Waste Management. As such, the Authority failed to establish the nonexistence of a genuine issue of material fact regarding the question whether Peerless and Waste Management were bound to indemnify the Authority.

      . Apparently, Peerless became a guarantor of TransAmerican's performance of Peerless’s obligations under the Peerless contract.


author: COBB, Judge.

text:
    Matthew Grant BRAND v. STATE of Alabama.
    CR-04-1882.
    Court of Criminal Appeals of Alabama.
    April 28, 2006.

      James R. Johnson, Carbon Hill, for appellant.
    Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   COBB, Judge.

Matthew Grant Brand appeals his April 12, 2005, conviction by the Franklin County Circuit Court of unlawful manufacture of a controlled substance in violation of § 13A-12-217, Ala.Code 1975; unlawful possession of marijuana in the second degree in violation of § 13A-12-214, Ala. Code 1975; and possession of drug paraphernalia in violation of § 13A-12-260, Ala.Code 1975. On May 25, 2005, the trial court sentenced Brand to 15 years’ imprisonment; that sentence was split and Brand was ordered to serve 2 years for the conviction for unlawful manufacture of a controlled substance, one year for the conviction for second-degree marijuana possession, and six months for the drug-paraphernalia conviction. He was also ordered to pay $150 to the Crime Victims Compensation Fund in accordance with § 15-23-17(b), Ala.Code 1975, and $100 to the Forensic Trust Fund in accordance with § 36-18-7, Ala.Code 1975.

On January 2, 2002, Russellville Police officer Scotty Lowry received a telephone call from the manager of the Russellville Wal-Mart discount department store notifying him that two white males had purchased materials that could be used in the manufacture of methamphetamine. The manager also provided Officer Lowry the tag number of the automobile in which the individuals left the Wal-Mart parking lot. The vehicle, which was unoccupied, was located in the parking lot of the Franklin Shopping Center. Police set up surveillance and watched as Brand and Morgan exited Rite-Aid pharmacy and entered the vehicle. Police saw several bags inside the vehicle in plain view; some of them were transparent and contained boxes of cold and allergy medications.

The evidence indicated that at 10:43 a.m. on January 2, 2002, Brand purchased three boxes of allergy medicine containing pseu-doephedrine and three packages of AA lithium batteries from the Wal-Mart discount store. At 10:44 a.m. at a different cash register in the same Wal-Mart store, Morgan purchased three boxes of tablets containing pseudoephedrine. At 10:58 a.m., Brand purchased three boxes of tablets containing pseudoephedrine at the Russellville Family Dollar discount store. At 11:08 a.m., Brand purchased from the Rite-Aid store in Russellville 3 boxes of 48-count tablets containing pseudoephed-rine. At 11:11 a.m., Morgan purchased 2 boxes of 48-count tablets containing pseu-doephedrine at the same Rite-Aid. In total, Brand and Morgan had purchased 14 boxes of medicines containing pseu-doephedrine in less than 30 minutes.

I.

As best as we can discern from Brand’s brief, he appears to argue that the trial court committed reversible error when it permitted Officer Lowry to read the ingredients label on the boxes of medication that had been introduced as exhibits during the trial. As we have previously stated, “The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing of abuse of discretion.” Kennedy v. State, 929 So.2d 515, 519 (Ala.Crim.App.2005), quoting Ex parte hoggins, 771 So.2d 1093, 1103 (Ala.2000).

During the trial, the State introduced into evidence boxes of cold and allergy medicine purchased by Brand on January 2, 2002. The State then asked Officer Lowry to read the ingredients listed on each box. Brand objected, contending the information contained on the box was hearsay. The trial judge overruled the objections.

Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), Ala. R. Evid. Generally, hearsay is not admissible, unless it comes within an exception by the Alabama Rules of Evidence, by statute, or by other rules adopted by the Supreme Court of Alabama. Rule 802, Ala. R. Evid. In this matter, the label on a medicine box is hearsay because it is a written assertion “other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted” and would not be admissible unless some exception applied. Rules 801(c) & 802, Ala. R. Evid.

However, Rule 803(17), Ala. R. Evid., provides that “[mjarket quotations, tabulations, lists, directories, or other published complications, generally used and relied upon by the public and by persons in particular occupations” are excluded from the hearsay rule. The question whether pharmaceutical labeling falls within this exception to the hearsay rule is one of first impression for Alabama appellate courts.

Given the widespread epidemic of illegal methamphetamine production, other jurisdictions with rules identical to Rule 803(17), Ala. R. Evid., have addressed this issue. In State v. Heuser, 661 N.W.2d 157 (Iowa 2003), the Iowa Supreme Court held that pharmaceutical labeling falls within the market-report exception to the Iowa Rules of Evidence, which exception is identical to Alabama’s Rule 803(17). Regarding the labels of boxes of cold medication, the Iowa Supreme Court held:

“The applicable state and federal regulations suggest the cold medication labels are accurate and trustworthy. Additionally, the contemporary nature of pharmaceutical practice exemplifies the inherent trustworthiness of cold medication labels.
“ ‘In this modern day, thousands of pharmaceuticals are compounded, processed, or produced, and then packaged and labeled for distribution in that package for direct sale to a customer unopened, and frequently under seal, and as the modern advertising puts it “untouched by human hands.” This is no longer an age when the processor puts the ingredients into a vial with an “eyedropper,” with highly variable results appearing in the finished “preparation,” but an era characterized by automatic mixing, measuring, and filling apparatus, the entire productive process being controlled by electronic and nucleonic gauges, measuring to infinitesimal precision, to produce an absolute result in meeting a required standard. This is the process that brings to a pharmacist an “exempt” preparation, properly labeled as required by statute, and in this case a label ... specifically designed to make that preparation more quickly identifiable.’
“State v. Mitchell, 18 Ohio App.2d 1, 246 N.E.2d 586, 589 (1969). For all these reasons, over-the-counter drug labels are generally relied upon as accurate.”

661 N.W.2d 157, 164 (Iowa 2003).

Using the same reasoning as the Heuser court, the Indiana Supreme Court likewise held that cold-medicine labeling falls within Indiana’s “market report” exception, which is identical to Alabama’s “market report” exception to the hearsay rule. Reemer v. State, 835 N.E.2d 1005 (Ind.2005). The Mississippi Supreme Court, relying on the reasoning of Heuser, has also held that cold-medicine labeling falls under Mississippi’s “market report” exception to the hearsay rule, which is also identical to Alabama’s “market report” exception. Burchfield v. State, 892 So.2d 191 (Miss.2004). Similarly, the intermediate appellate courts in two other states have held that the labeling of cold medicine fall within the “market report” exception to the hearsay rule. See People v. Shevock, 335 Ill.App.3d 1031, 782 N.E.2d 949, 270 Ill.Dec. 390 (2003) and Shaffer v. State, 184 S.W.3d 353 (Tex.Ct.App.2006).

We find the reasoning of the Iowa Supreme Court in its “market list” analysis persuasive; thus, we hold that the labeling found on cold-medicine boxes falls within the “market list” exception in Rule 803(17) to the hearsay rule. The Alabama Safe Foods Act of 2000 makes it illegal for drugs to be mislabeled in Alabama. § 20-1-26, Ala. Code 1975. Likewise, federal statutes prohibit such mislabeling. As the Mississippi Supreme Court aptly stated:

“We cannot imagine any hearsay evidence more trustworthy and relied upon by the public than the ingredients label on an unopen box of medication purchased from a drug store. The Food and Drug Administration regulates over-the-counter medications. Failure to properly list the ingredients places the pharmaceutical manufacturer in peril.”

Burchfield, 892 So.2d at 198.

The labels on the boxes of medicine are required by state and federal law. The boxes of cold medicine Brand possessed were in the original packages. Neither the boxes nor the “blister” packs were opened. The fact that the pills were in the original, unbroken packages indicates that the contents had not been changed since the manufacture packaged them. The labeling on the boxes clearly listed pseu-doephedrine hydrochloride as one of the active ingredients in each pill. The ingredients labels on the boxes qualify as a “market list” that is “generally used and relied upon by the public ....” Rule 803(17), Ala. R. Evid.

Thus, the trial court properly allowed Officer Lowry to read the ingredients labels on the boxes of cold medication to the jury. Brand is not entitled to any relief as to this claim.

II.

Brand next argues that the trial court erred when it denied his motion for a judgment of acquittal. Brand’s argument is premised on the notion that the evidence showed he had only one precursor substance and that § 13A-12-217, Ala.Code 1975, requires that the evidence show that more than one precursor substance was in his possession in order to sustain a conviction for the unlawful manufacture of a controlled substance. However, in light of our recent decision in O’Callaghan v. State, [Ms. CR-04-1941, Feb. 3, 2006] — So.2d - (Ala.Crim.App.2006), Brand’s argument is without merit.

In O’Callaghan, the appellant argued that insufficient evidence was presented to obtain a conviction because the evidence at trial indicated that he was in possession of only one precursor substance. Holding that § 13A-12-217, Ala.Code 1975, requires the introduction of evidence of possession of only a singular precursor substance, we noted:

“There is no indication that the legislature, in the face of a growing methamphetamine epidemic at the time of the enactment of § 13A-12-217 in 2001, intended to relax the threshold and require the possession of more than one precursor substance used in the manufacture of methamphetamine in order to establish that a person has committed the crime of unlawful manufacture of a controlled substance.”

O’Callaghan, — So.2d at -.

Because § 13A-12-217 does not require evidence of plural precursor substances, the trial court properly denied Brand’s motion for a judgment of acquittal.

III.

During the trial, the State introduced for impeachment purposes various receipts dated December 2001 for cold medicine that had been found in the automobile driven by Brand. As best as we can tell, Brand argues that he was prejudiced by the introduction of this evidence because he was not provided copies of these receipts during discovery. Brand alternatively argues that the evidence was not introduced for impeachment purposes and that the prejudicial effect of this evidence outweighs its impeachment value.

Before trial, Brand filed a motion for production and disclosure of information and other items. The trial court entered an order requiring the State “[t]o permit [Brand] to analyze, inspect, and copy or photograph books, papers, documents ... or portions of any of these things, which are within the possession, custody or control of the State and ... which were obtained from or belonged to [Brand].” While Brand refutes that the receipts belonged to him, the evidence showed that they were obtained from his vehicle. Thus, these documents should have been produced to Brand during the course of discovery.

While Brand should have received these items during the course of discovery, we note that “ ‘the remedy for violations of discovery rules [rests] within the sound discretion of the trial court.’ ” Morrison v. State, 601 So.2d 165, 178 (Ala.Crim.App.1992), quoting Buchannon v. State, 554 So.2d 477, 486 (Ala.Crim.App.1989). When the State introduced this evidence for impeachment purposes, Brand objected that the evidence had not been disclosed during the course of discovery. Brand did not ask for any curative measure under Rule 16.5, Ala. R.Crim. P. Under Rule 16.5, Ala. R.Crim. P., the trial court could have continued the trial, prohibited the State from introducing the evidence that had not been disclosed, or entered any other order it deemed just under the circumstances. The trial court gave the jury the following curative instruction:

“THE COURT: Ladies and gentlemen of the jury, the documents that are about to be utilized will be used for credibility purposes only, for impeachment purposes only. It is not evidence for your consideration that this defendant is guilty of anything contained in the indictment, it is strictly for credibility only.”

(R. 314.) We find no abuse of discretion on the part of the trial court; thus Brand is not entitled to any relief as to his claim.

Brand also alleges that the receipts were not used for impeachment purposes. The record, however, indicates otherwise. Before the State introduced the receipts, the following exchange occurred:

“Q. [Prosecutor]: Now, what vehicle did y’all leave in?
“A. [Brand]: We left in my, now, wife’s. Then she was my girlfriend.
“Q. Your wife’s vehicle?
“A. Uh-huh.
“Q. As you said, you’ve driven that vehicle before; right?
“A. Several times.
“Q. And when you weren’t driving, your wife was driving; right?
“A. Yes, sir.
“Q. Had you ever used that vehicle to buy pseudoephedrine, other ingredients to methamphetamine in other places? '
“A. Never before.
“Q. And so would there be any other records or receipts in that vehicle for the similar-type materials that we see here?
“A. Not that I know of.”

(R. 312-13.) After this exchange the State informed the trial court that it would be using the receipts for impeachment purposes, and the trial court gave a limiting instruction to the jury regarding the use of that evidence for impeachment purposes. That evidence was clearly used for impeachment purposes pursuant to Rule 607, Ala. R. Evid.; thus Brand’s assertion lacks validity.

Brand argues that the prejudicial effect of this evidence outweighed its impeachment value. “ ‘[T]he latitude and extent of cross-examination is a matter which of necessity rests largely within the sound discretion of the trial court, and rulings with respect thereto will not be revised on appeal except in extreme cases of abuse.’ ” Southern Energy Homes, Inc. v. Washington, 774 So.2d 505, 515 (Ala.2000), quoting State v. Howington, 268 Ala. 574, 575, 109 So.2d 676, 677 (1959). As our Supreme Court has recognized, “All impeachment evidence is prejudicial to some extent. It is only when the probative value of the impeachment evidence is substantially outweighed by its prejudicial impact that it should be excluded.” Southern Energy Homes, Inc. v. Washington, 774 So.2d at 516 (Ala.2000). The probative value of the receipts as impeachment evidence is not substantially outweighed by its prejudicial impact. Therefore, there was no abuse of discretion on the part of the trial court in permitting this evidence to be used for impeachment purposes. Brand is thus not entitled to any relief as to this claim.

For all the foregoing reasons, we affirm the judgment of the Franklin Circuit Court.

AFFIRMED.

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

      . We note that Brand’s brief barely meets the minimal requirements of Rule 28(a), Ala. R.App. P. As the Supreme Court has held
      "Appellants who fail to comply with [Ala.] R.App. P. 28(a) place themselves in a perilous position. While we attempt to avoid dismissing appeals or affirming judgments on what may be seen as technicalities, we are sometimes unable to address the merits of an appellant’s claim when the appellant fails to articulate that claim and presents no authorities in support of that claim. Under appropriate circumstances we will refuse to consider the appeal.”

        Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251, 253 (Ala.1985). While Rule 28 has been amended significantly since Stover, those changes have not affected the holding in that case.

      . Brand testified at trial that the vehicle he was driving belonged to his girlfriend.


author: WISE, Judge.

text:
    D.L.B. v. STATE of Alabama.
    CR-04-2088.
    Court of Criminal Appeals of Alabama.
    April 28, 2006.

      James M. Byrd, Mobile, for appellant.
    Troy King, atty. gen., and Robin Blevins Scales, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, D.L.B., appeals from the circuit court’s revocation of his probation. The record indicates that on July 10, 2003, D.L.B. was adjudicated a youthful offender, based on the circuit court’s finding that D.L.B. had altered the identification number on a firearm. He was sentenced to 3 years’ imprisonment; however, the court suspended that sentence, conditioned upon D.L.B.’s successful completion of a 180-day term in “Boot Camp,” and placed D.L.B. on supervised probation for the balance of his 3-year term. After D.L.B. was “dismissed from Boot Camp due to disruptive behavior,” the court remanded him to the custody of the Department of Corrections to serve a one-year term of imprisonment, with the balance of his sentence to be served on supervised probation.

Following his release from custody, D.L.B. began serving the probationary term of his sentence. On March 18, 2005, while on probation, D.L.B. was arrested by the Mobile County Sheriffs Office and charged with unlawful possession of a controlled substance — Xanax. D.L.B.’s probation officer filed a probation delinquency report on April 26, 2005, recommending that a hearing be conducted to determine if D.L.B. had violated the terms and conditions of his probation. On July 7, 2005, D.L.B. was arrested by the Mobile County Sheriffs Office for distribution of a controlled substance — cocaine.

A revocation hearing was scheduled for June 28, 2005; the hearing was reset for July 6, 2005. When the arresting officers did not appear for the July 6 hearing, the hearing was reset yet again, this time for July 13, 2005. A brief hearing was held on July 13, 2005. Present before the court were D.L.B. and his counsel, the prosecuting attorney, and one of the arresting officers. After hearing argument from the prosecutor and defense counsel, the circuit court revoked D.L.B.’s probation. No testimony was taken at the hearing, after the State conceded that the officer present for the hearing could not “actually place the drugs” and that the other arresting officer — the one who actually found ' the drugs — was on vacation. The court noted that it was revoking D.L.B.’s probation based on the State’s representation (R. 6). The court advised defense counsel: “Mr. Byrd, if you want to file a reconsideration and ask for a hearing, I will certainly reconsider. But as far as I am concerned, [D.L.B.] stays with the State at this point. He is in custody.” (R. 6-7.) Defense counsel acknowledged the court’s action, stating: “For the record, Judge, I renew my position that you can’t do this [revoke D.L.B.’s probation] without a hearing. The State has had two tries at the hearing and they’re not going forward with the evidence, just representations.” (R. 7.)

The court noted in its revocation order that since beginning his probation, D.L.B. had been arrested for unlawful possession of a controlled substance and for distribution of a controlled substance. The court stated that it was “reasonably satisfied from said evidence that [D.L.B.] did violate the terms and conditions of his probation by committing the violations set out above.” (C. 10.) This appeal followed.

D.L.B. argues that the circuit court erroneously revoked his probation without first conducting a revocation hearing. Specifically, D.L.B. argues that the July 13, 2005, hearing, at which no witnesses testified and no evidence was presented, is insufficient to comply with the requirements of § 15-22-54, Ala.Code 1975. We agree.

In Hollins v. State, 737 So.2d 1056, 1057 (Ala.Crim.App.1998), this Court held:

“Section 15-22-54, Ala.Code 1975, requires a hearing as a prerequisite to the revocation of probation. This statutory requirement is mandatory and jurisdictional. Story v. State, 572 So.2d 510 (Ala.Cr.App.1990). Additionally, the appellant was denied his constitutional right to due process by the revocation of his probation without a hearing. The minimal due process to be accorded a probationer before his probation can be revoked includes written notice of the claimed violations of probation, disclosure to the probationer of the evidence against him, an opportunity to be heard in person and to present witnesses and documentary evidence, the right to confront and to cross-examine adverse witnesses, a neutral and detached hearing body such as a traditional parole board, and a written statement by the factfin-ders as to the evidence relied on and the reasons for revoking probation. Rule 27.5 and 27.6, Ala.R.Crim.P. See Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); Hernandez v. State, 673 So.2d 477 (Ala.Cr.App.1995).”

Quoted with approval in Young v. State, 889 So.2d 55, 56 (Ala.Crim.App.2004); Zackery v. State, 832 So.2d 672, 673 (Ala.Crim.App.2001); Phillips v. State, 755 So.2d 63, 65 (Ala.Crim.App.1999).

Although the July 13, 2005, hearing purported to be a probation-revocation hearing, the court announced that it was revoking D.L.B.’s probation without hearing testimony from any State’s witnesses and without allowing D.L.B. an opportunity to be heard. Because the circuit court revoked D.L.B.’s probation based on the representations of the prosecutor, rather than on evidence presented to the court in the form of witness testimony or other legal evidence, D.L.B. was denied the right to a hearing where he could be heard and present witnesses and documentary evidence and where he could confront and cross-examine adverse witnesses. Also, defense counsel’s comments indicate that he was not aware of one of the grounds for revocation cited by the court in its written order, namely D.L.B.’s July 7, 2005, arrest and subsequent indictment for distribution of cocaine. Finally, the record does not indicate that D.L.B. waived his right to a revocation hearing pursuant to Rule 27.5(b), Ala.R.Crim.P. Indeed, counsel made it clear on several occasions that D.L.B. wished to have a formal revocation hearing. Accordingly, we reverse the circuit court’s judgment and remand this case to that court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . In the event D.L.B. wishes to further challenge the adequacy of the circuit court’s revocation proceedings, he may file a new notice of appeal to this Court.