author: BRYAN, Judge.

text:
    Patricia Ann WORRELL v. Joseph C. SHELL and Gwynne Shell.
    2090905.
    Court of Civil Appeals of Alabama.
    Feb. 18, 2011.

      Gregory L. Albritton, Evergreen, for appellant.
    Edward T. Hines of Thompson, Garrett & Hines, L.L.P., Brewton, for appellees.
   BRYAN, Judge.

Patricia Ann Worrell appeals from a judgment of the Escambia Circuit Court (“the circuit court”) dismissing her appeal from a condemnation judgment of the Probate Court of Escambia County (“the probate court”). We affirm.

On September 10, 2009, Joseph C. Shell and Gwynne Shell filed in the probate court a complaint seeking the condemnation of a right-of-way across Worrell’s land (“the right-of-way”) pursuant to § 18-3-1 et seq., Ala.Code 1975. Answering the complaint, Worrell denied that the Shells were entitled to the condemnation of the right-of-way. Following a hearing, the probate court, on March 5, 2010, signed an order granting the Shells’ complaint. Also on March 5, 2010, the probate court signed a second order appointing three commissioners to determine the amount of damages and compensation to which Wor-rell was entitled. On March 15, 2010, Worrell received by facsimile transmission a copy of the March 5, 2010, order granting the Shells’ complaint.

On March 16, 2010, the commissioners reported to the probate court in writing that they had assessed damages and compensation in the amount of $3,000. On March 23, 2010, the probate court signed another order identical to the March 5, 2010, order granting the Shells’ complaint.

On March 25, 2010, Worrell received a certified copy of the probate court’s March 23, 2010, order. That same day, Worrell filed a notice of appeal in the circuit court. As of March 25, 2010, the probate court had signed two orders granting the Shells’ complaint pursuant to § 18-1A-276, Ala. Code 1975; however, as of that date, the probate court had not signed an order condemning the right-of-way pursuant to § 18-1A-282, Ala.Code 1975, which provides, in pertinent part, that, “within seven days [after the commissioners make their report in writing regarding their assessment of the damages and compensation], the probate court must issue an order that the report be recorded and the property be condemned upon payment or deposit into the probate court of the damages and compensation so assessed.” Moreover, § 18-1A-283, Ala.Code 1975, provides, in pertinent part, that an appeal from a judgment of condemnation signed pursuant to § 18-1A-282 is to be perfected “by filing in the probate court rendering that judgment a written notice of appeal.... ” (Emphasis added.)

On March 26, 2010, the Shells deposited $4,350 into the probate court. That same day, the probate court signed an order titled “Final Order of Condemnation,” which adopted the report of the commissioners, ordered that the commissioners’ report and the probate court’s orders be recorded, awarded fees totaling $1,350 to the commissioners, ordered the Shells to pay the commissioners’ fees, found that the Shells had deposited into the probate court the $3,000 in damages and compensation assessed by the commissioners, found that the Shells had paid all court costs, ordered that the $3,000 deposited into the probate court by the Shells be paid to Worrell, and condemned the right-of-way.

On March 29, 2010, Worrell received a certified copy of the probate court’s March 5, 2010, order granting the Shells’ complaint. On March 30, 2010, Worrell received a certified copy of the probate court’s March 26, 2010, final order of condemnation. Also on March 30, 2010, Wor-rell filed an amended notice of appeal in the circuit court.

On May 3, 2010, the Shells moved the circuit court to dismiss Worrell’s appeal on the ground that the circuit court lacked jurisdiction over the appeal. On May 4, 2010, Worrell moved the probate court to set aside the March 26, 2010, final order of condemnation. Also on May 4, 2010, Wor-rell filed a notice of appeal in the probate court. On May 6, 2010, the Shells filed an amended motion to dismiss that asserted that the circuit court lacked jurisdiction over Worrell’s appeal on the ground that Worrell had not perfected her appeal in accordance with the statute governing such appeals. Also on May 6, 2010, the probate court signed an order determining that it no longer had jurisdiction to consider Worrell’s motion to set aside the final order of condemnation. On May 10, 2010, Worrell filed in the circuit court an objection to the Shells’ motion to dismiss. As grounds for her objection, Worrell asserted:

“1. Code of Alabama 1975 § 12 — 11— 30(4).[] This statute requires the Circuit Courts to superintend the Probate and other lower courts.
“2. That notice by the Probate Court in this matter was deficient in that the Probate Court failed to provide notice under Code of Alabama 1975 § 18-1A-282.[] Since the notice from the Probate Court is deficient and violates the requirements of the law, then the notice of the judgment(s) provided by the Probate Court is also deficient or at least interlocutory, until the Probate amends its order to include the notice.
“3. Based upon the facts of this case the doctrine of equitable estoppel allows for this matter to be heard in Circuit Court. [Boutwell v. State ], 988 So.2d 1015 (Ala.2007).
“4. That the ruling of the Probate Court is not in accordance with law and is therefore subject to review. See Ex parte Lula Dell [Cater], 772 So.2d 1117 (Ala.2000), and Code of Alabama 1975 § 18-1A-282.
“5. That the ruling violates [Article I,] Section 23 of the Alabama Constitution [of 1901], which clearly states, 1... [B]ut private property shall not be taken for, or applied to public use, unless just compensation be first made therefore; nor shall private property be taken for private use, or for use of corporations, other than municipal, without the consent of the owner; provided, however, the legislature may by law secure to persons or corporations the right of way over the lands of other persons or corporations, and by general laws provide for and regulate the exercise by persons and corporations of the rights herein reserved; but just compensation shall, in all cases, be first made to the owner’. Constitution of Alabama 1901 [, Art. I,] § 23. [Worrell] has received no compensation in accordance with this Constitutional mandate^] therefore the judgment(s) rendered in March of 2010 by the Probate Court of Escambia County is void, or at least interlocutory until such time as payment is made.
“6. Claims of [Worrell] before this, the Circuit Court, involve matters of equity, and correctness of law, both of which are under the jurisdiction of this Circuit Court. Code of Alabama 1975 § 12-11-31 and [Boutwell v. State ], 988 So.2d 1015 (Ala.2007).
“It is the claim, of [Worrell] that appeal to the Circuit Court was and is proper under [§ ] 12-11-30(4) which states, ‘The circuit court shall exercise general superintendence over all district courts, municipal courts and probate courts.’
“Additionally, it is the claim of [Wor-rell] that the notice of the Probate Court was deficient in that the Court failed to comply with section 18-1A-282.... This section is clear in [stating that] it is necessary that the court give notice of the right to appeal.[] The Probate Court has yet to provide this required notice to [Worrell][;] therefore, the order date cannot be valid.”

On May 25, 2010, the Shells submitted, in support of their motion to dismiss, a copy of the May 6, 2010, order of the probate court holding that it no longer had jurisdiction to consider Worrell’s motion to set aside the March 26, 2010, final order of condemnation and a copy of a receipt in which the probate court acknowledged receiving the $4,350 the Shells had deposited in the probate court on March 26, 2010.

Following a hearing regarding the Shells’ motion to dismiss, the circuit court entered a judgment dismissing Worrell’s appeal on the ground that the circuit court lacked jurisdiction. The circuit court’s judgment stated:

“This matter comes before the Court on the motion to dismiss filed by the appellees Joseph C. Shell and Gwynne Shell. An order of condemnation was entered by the Probate Court of Escam-bia County on March 26, 2010 and payment was made in accordance with the order of condemnation on the same date. Patricia Ann Worrell filed a notice of appeal from probate court to circuit court on March 25, 2010. This notice of appeal was filed in the Escambia County Circuit Court. On May 4, 2010, Patricia Ann Worrell filed a notice of appeal in the probate court.
“Section 18-1A-283 of the Alabama Code states that any of the parties may appeal from the order of condemnation to the circuit court of the county within thirty days from the making of the order of condemnation by filing in the probate court rendering the judgment a written notice of appeal. In Pace v. The Utilities Board of the City of Foley, 752 So.2d 510 ([Ala.Civ.App.]1999), the facts were identical to the facts of the present case. The original notice of appeal was filed in circuit court within the thirty day time period and a later notice of appeal was filed in the probate court after the thirty day time period had expired. In Pace, the Court of Civil Appeals found that the requirements of Section 18-1A-283 are mandatory and the failure to perfect an appeal in accordance with this section deprives the circuit court of jurisdiction to hear an appeal.
“The Court finds that the notice of appeal was filed in the Probate Court of Escambia County thirty-nine days after the entry of the order of condemnation. Therefore, this Court does not have jurisdiction to entertain the appeal from the probate court’s judgment of condemnation. Accordingly, it is
“ORDERED, ADJUDGED AND DECREED that the motion to dismiss filed by Joseph C. Shell and Gwynne G. Shell is granted.”

On June 25, 2010, Worrell timely appealed to this court. Because we tacked jurisdiction, we transferred the appeal to the supreme court. The supreme court then transferred the appeal back to this court pursuant to § 12-2-7(6), Ala.Code 1975.

The facts pertinent to Worrell’s appeal from the probate court’s March 26, 2010, final order of condemnation to the circuit court are not in dispute. Therefore, the issues before us are pure questions of law, and our review is de novo. See Boutwell v. State, 988 So.2d 1015, 1020 (Ala.2007) (“Boutwell II”).

Worrell first argues that Pace v. Utilities Board of Foley, 752 So.2d 510 (Ala.Civ.App.1999), the case the circuit court relied on in determining that Worrell’s notice of appeal was untimely, is distinguishable from the case now before us. Specifically, Worrell argues that Pace is distinguishable because Pace involved a condemnation action brought by a public entity whereas the case now before us involves a condemnation action brought by private parties. However, § 18-3-3, Ala. Code 1975, provides that, in condemnation actions by private parties, “the same proceedings shall be had as in cases of condemnation of lands for public uses as provided by Chapter 1[A] of this title.” Moreover, this court has held that “[t]he same principles set forth in the Eminent Domain Code governing actions brought by the state to condemn land in general will govern actions brought by a private party to condemn a right-of-way.” Carroll v. Ward, 814 So.2d 287, 289 (Ala.Civ.App.2001). Consequently, we find no merit in Worrell’s argument that Pace is distinguishable because it involved a condemnation action brought by a public entity rather than a condemnation action brought by private parties.

Worrell also argues that Pace is distinguishable because, Worrell says, in Pace there is no indication that the probate court failed to give the parties timely notice of their right to appeal to the circuit court within 30 days as required by § 18-1A-282 whereas, in the case now before us, it is undisputed that the probate court faded to give the parties such notice. Citing Boutwell II, supra, Worrell further argues that, because the probate court did not give her notice of her right to appeal, the doctrine of equitable estoppel should be applied so as to extend the period for her to file her notice of appeal to May 4, 2010, the date she filed her notice of appeal in the probate court.

In Boutwell II, the probate judge signed the judgment of condemnation pursuant to § 18-1A-282 on January 26, 2004, and recorded it in the minutes of the probate court on January 27, 2004. On February 25, 2004, the 30th day after the probate judge had signed the judgment of condemnation, the condemnee and his attorney contacted the probate judge regarding the deadline for filing the condemnee’s notice of appeal. The probate judge informed them that a notice of appeal filed the next day, i.e., February 26, which was the 31st day after the probate judge had signed the judgment of condemnation, would be timely-

The condemnee filed his notice of appeal on February 26; however, the circuit court dismissed the condemnee’s appeal on the ground that his notice of appeal was not timely filed. The condemnee then appealed from the judgment of the circuit court. This court reversed the judgment of the circuit court on the ground that the 30-day period for the condemnee to file his notice of appeal had begun running on January 27, the date the probate judge recorded the judgment of condemnation in the minutes of the probate court, rather than on January 26, the date the probate judge signed the judgment, and, therefore, the condemnee’s appeal to the circuit court was filed within 30 days of the “making” of the judgment within the meaning of § 18-1A-283. Boutwell v. State, 988 So.2d 1012, 1015 (Ala.Civ.App.2005) (“Boutwell I”).

On certiorari review, the supreme court in Boutwell II affirmed the judgment of this court in Boutwell I, but it did so on the basis of a different rationale. The supreme court held that the judgment of condemnation was “made” within the meaning of § 18-1A-283 on the date the order stated that it was “done,” i.e., the date the probate judge had signed it, rather than on the date the probate judge had recorded it in the minutes of the probate court and that, therefore, the condemnee’s notice of appeal was not timely filed because it was filed on the 31st day after the probate judge had signed the judgment. 988 So.2d at 1020-21. However, the supreme court further held that the doctrine of equitable estoppel should be applied so as to extend the period for the condemnee to file his notice of appeal to the 31st day after the probate judge had signed the judgment of condemnation because the condemnee had relied to his detriment on the probate judge’s erroneous statement that the condemnee’s notice of appeal would be timely filed if it was filed on February 26, the 31st day after the probate judge had signed the judgment of condemnation. 988 So.2d at 1021-27. In holding that the date a probate court “makes” a judgment of condemnation within the meaning of § 18-1A-283 is the date the probate judge signs the judgment of condemnation, the supreme court stated, “we are mindful of the potential unfairness that could result if a probate court drafted and signed an order of condemnation, yet failed to notify the parties of the order, thereby compromising their time for taking an appeal.” 988 So.2d at 1021 (emphasis added; footnote omitted). However, the supreme court did not address the effect of a failure by the probate court to notify the parties of their right to appeal.

We disagree with Worrell’s argument that Boutwell II mandates that the doctrine of equitable estoppel should be applied in the case now before us so as to extend the period for her to file her notice of appeal to May 4, 2010. Worrell is not entitled to the application of the doctrine of equitable estoppel unless she can prove that she relied on a misleading communication, either by words, conduct, or silence, on the part of the probate court that caused her failure to perfect her appeal. See Crest Const. Corp. v. Shelby County Bd. of Educ., 612 So.2d 425, 430 (Ala.1992). In Crest Const. Corp., the supreme court stated:

“The elements of equitable estoppel are:
“ ‘(1) The person against whom estop-pel is asserted, who usually must have knowledge of the facts, communicates something in a misleading way, either by words, conduct, or silence, with the intention that the communication will be acted on; (2) the person seeking to assert estoppel, who lacks knowledge of the facts, relies upon that communication; and (3) the person relying would be harmed materially if the actor is later permitted to assert a claim inconsistent with his earlier conduct.’ ”

612 So.2d at 425 (emphasis added) (quoting General Elec. Credit Corp. v. Strickland Div. of Rebel Lumber Co., 437 So.2d 1240, 1243 (Ala.1983)). There is no evidence indicating that Worrell’s failure to perfect her appeal was caused by her reliance on a misleading communication, either by words, conduct, or silence, on the part of the probate court. Although Worrell complains that the probate court did not notify her that she had a right to appeal within 30 days, she filed a notice of appeal, i.e., the March 30, 2010, amended notice of appeal she filed in the circuit court, within 30 .days after the probate court signed the March 26, 2010, final order of condemnation — she just filed it in the wrong court. Section 18-1A-282 does not require the probate court to notify the parties that their notices of appeal must be filed in the probate court rather than in the circuit court. Accordingly, we conclude that the failure of the probate court to notify Wor-rell that she had a right to appeal within 30 days does not constitute a valid basis for holding that equitable estoppel should be applied so as to extend the period for her to file her notice of appeal to May 4, 2010. Moreover, because the failure of the probate court to give her that notice does not entitle her to the extension of the period to file her notice of appeal, the case now before us cannot be distinguished from Pace based on the failure of the probate court to give her that notice.

Worrell also argues that the March 23, 2010, order of the probate court granting the Shell’s complaint was invalid because, she says, it did not comply with the requirements of § 18-1A-283. However, the record on appeal does not indicate that Worrell presented that argument to the circuit court. “This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.” Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). Therefore, we do not consider this argument.

Worrell also argues that the probate court’s March 26, 2010, final order of condemnation is void because, she says, (1) it was signed more than seven days after the March 16, 2010, report of the commissioners and (2) it was signed before any payment of compensation to Worrell. However, we cannot consider those arguments because the record on appeal does not indicate that Worrell presented those arguments to the circuit court. See Andrews.

Citing § 12-11-11, Ala.Code 1975, Worrell appears to argue that the circuit court erred in failing to transfer to the probate court the notices of appeal she had filed in the circuit court. However, we cannot consider that argument because the record on appeal does not indicate that Worrell presented it to the circuit court. See Andrews.

Citing § 12-11-30(4), Worrell also argues that the circuit court erred in determining that it did not have jurisdiction over her appeal because, she says, the circuit court had a duty to superintend the probate court. However, Worrell cites no legal authority supporting the proposition that § 12-11-30(4) authorizes the circuit court to exercise jurisdiction over an appeal from a condemnation judgment that has not been perfected in accordance with § 18-1A-283, and Pace indicates that that proposition has no merit. Accordingly, based on the authority of Pace, we reject Worrell’s argument that § 12-11-30(4) authorized the circuit court to exercise jurisdiction over her appeal despite her failure to perfect her appeal in accordance with § 18-1A-283.

Finally, Worrell argues that the probate court’s orders are invalid because, she says, they conflict with Article I, Section 23, of the Alabama Constitution of 1901, which, she says, required that she be paid just compensation before the probate court condemned the right-of-way. Section 18-1A-282 provides that, after the commissioners make their report in writing regarding their assessment of damages and compensation for the condemnation, “the probate court must issue an order that the report be recorded and the property be condemned upon payment or deposit into the probate court of the damages and compensation ... assessed [by the commissioners] -” (Emphasis added.) In the case now before us, the probate court found in its March 26, 2010, final order of condemnation that the Shells had already deposited into the probate court the amount of the damages and compensation assessed by the commissioners, and, therefore, it condemned the right-of-way. The probate court also ordered that the damages and compensation deposited into the probate court by the Shells be paid to Worrell. In State ex rel. City of Mobile v. Williams, 222 Ala. 274, 275, 132 So. 321, 322 (1931), the supreme court held that a condemnation order signed pursuant to a predecessor of § 18-1A-282 should “contain the condition that the condemnation is effective ‘upon the payment of the damages and compensation so assessed and reported or the deposit of the same in court [J....” (Emphasis added.) Wor-rell has not cited any caselaw holding that depositing the amount of the damages and compensation in the probate court rather than paying it to the condemnee before the property is condemned violates Art. I, § 23, Ala. Const. 1901. Accordingly, we find no merit in Worrell’s argument that the probate court’s orders violated Art. I, § 23.

Because Worrell has not presented a meritorious argument that the circuit court erred in dismissing her appeal from the probate court’s judgment, we affirm the judgment of the circuit court.

AFFIRMED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

      .In pertinent part, § 18-3-3, Ala.Code 1975, provides that "the same proceedings shall be had [in cases seeking condemnation of a right-of-way by a private party] as in cases of condemnation of lands for public uses as provided by chapter 1[A] of this title.” (Section 18-3-3 was not amended when Chapter 1 of Title 18, Ala.Code 1975, was repealed and replaced by Chapter 1A. See Ala. Acts 1985, Act No. 85-548.) In pertinent part, § 18-1A-276, Ala.Code 1975, provides that, "within 10 days after the hearing [regarding the complaint seeking condemnation, the probate court] shall make an order granting or refusing the complaint.”

      . In pertinent part, § 18-1A-279, Ala.Code 1975, provides that, "[i]f the complaint be granted, in whole or in part, within 10 days after the complaint is granted, the judge of probate must appoint three citizens of the county in which the lands sought to be condemned are situated” as commissioners to assess the damages and compensation to which the condemnee is entitled.

      . In pertinent part, § 18-1A-282, Ala.Code 1975, provides that "[t]he commissioners must, within 20 days from their appointment, make a report in writing to the probate court stating the amount of damages and compensation ascertained and assessed by them....”

      . The $4,350 included $3,000 to pay the commissioners' assessment of the damages and compensation due Worrell plus $1,350 to cover the commissioners’ fees.

      . As noted above, § 18-1A-283 requires that a notice of appeal to the circuit court from the probate court's order condemning the property pursuant to § 18-1A-282 must be filed in the probate court. Moreover, § 18-1A-283 requires that such a notice be filed within 30 days of the "making" of the probate court’s order pursuant to § 18-1A-282. In Boutwell v. State, 988 So.2d 1015, 1021 (Ala.2007), the supreme court held that a condemnation order is "made” on the date the order states it was "done,” i.e., on the date it was signed.

      . Section 12-11-30(4) provides that "[t]he circuit court shall exercise a general superintendence over all district courts, municipal courts, and probate courts.”

      . In pertinent part, § 18-1A-282 provides that "[a] notice of entry of [the order condemning the right-of-way] and the amount of the award shall immediately be mailed by first class mail to each party whose address is known, together with a notice of the right to appeal therefrom to the circuit court within 30 days from the date of such order." (Emphasis added.)

        .See supra note 7.

      . Chapter 1 of Title 18, Ala.Code 1975, was repealed and replaced by Chapter 1A. See Ala. Acts 1985, Act No. 85-548.

      . See supra note 7.

      . Section 12-11-11 provides:
      "Whenever it shall appear to the court that any case filed therein should have been brought in another court in the same county, the court shall make an order transferring the case to the proper court, and the clerk or register shall forthwith certify the pleadings, process, costs and order to the court to which the case is transferred, and the case shall be docketed and proceed in the court to which it is transferred, and the costs accrued in the court in which the case was originally filed shall abide by the result of the case in the court to which transferred.”

      . See supra note 6.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    ARVINMERITOR, INC. v. Clifton JOHNSON.
    2090822.
    Court of Civil Appeals of Alabama.
    Feb. 25, 2011.

      J. Richard Carrigan, Timothy A. Palmer, and J. Carin Pendergraft of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Birmingham, for appellant.
    W. Eason Mitchell, Tuscaloosa, for ap-pellee.
   MOORE, Judge.

Clifton Johnson (“the employee”) filed a claim for workers’ compensation benefits against ArvinMeritor, Inc. (“the employer”), on July 19, 1999. On February 21, 2003, the Fayette Circuit Court (“the trial court”) entered a judgment in which it determined that the employee was 100% permanently and totally disabled as a result of an occupational disease he had contracted in the course of his employment with the employer; the judgment required the employer to pay workers’ compensation disability benefits as well as all the employee’s reasonably necessary future medical expenses related to his occupational disease. The record indicates that the employer paid the benefits as required.

The employee later pursued a claim against alleged third-party tortfeasors for the same occupational disease in a civil action numbered CV-04-06. In November 2008, the employee negotiated a confidential settlement with the third parties that exceeded the past amounts of workers’ compensation disability and medical benefits paid by the employer. Pursuant to Ala.Code 1975, § 25-5-ll(a), the employer had a right to credit the third-party proceeds against its liability for workers’ compensation benefits, see Davidson v. Pet, Inc., 644 So.2d 896 (Ala.1994), and a right to subrogation as to the employee’s recovery of medical expenses from the third parties. See Ex parte Miller & Miller Constr. Co., 736 So.2d 1104 (Ala.1999). Also in November 2008, the employer and the employee negotiated a settlement of the employer’s rights under Ala. Code 1975, § 25-5-11.

On January 27, 2009, the employer and the employee jointly petitioned the trial court to approve their settlement. In that petition, the parties set out their settlement agreement, which, in pertinent part, states:

“a. [The employee] and [the employer] have agreed to settle all of [the employee’s] claims for workers’ compensation benefits, including all accrued benefits of any type and all future benefits which might be owed for permanent and total disability, and for the closing of all future medical expenses, in return for [the employer’s] waiver of its right to credit or reimbursement under Ala. Code [1975], § 25-5-ll(a), and contribution by [the employer] of up to $65,000 for establishment of a Medicare set aside trust.
“b. This agreement closes all of [the employee’s] rights to workers’ compensation benefits of any kind, including, without limitation, medical benefits. A Medicare set aside trust for the future compensable medical expenses of [the employee] will be established. The cost of such Medicare set aside trust is $83,936.17. Upon entry by this Court of the order' described in Paragraph a. above, [the employer] will contribute up to $65,000 to fund the Medicare set aside trust, with the balance of the amount necessary to fund such Medicare set aside trust to be paid by [the employee]. The Parties agree that the establishment of an approved Medicare set aside trust will relieve [the employer] of any future medical expense obligation concerning [the employee].
“d. Upon-entry by this Court of an order relieving [the employer] of all obligation to make any further payments to [the employee] for worker’s compensation benefits, medical, rehabilitation, and vocational rehabilitation expenses, [the employer] will waive its right to reimbursement under Ala.Code, § 25-5-11, for all settlements with third party tort-feasors in CV 04-06 made through the date of the approval of such Order.
“e. If [the employer] is not relieved of all obligation to make further payments to [the employee] for worker’s compensation benefits, medical and rehabilitation expenses, [the employer] retains its right to reimbursement under Ala.Code, § 25-5-11.
“f. [The employee] hereby declares and represents to the Court that no representations made by any attorney or agent of [the employer], other than those set forth in this Petition, induced him to enter into this settlement....”

On February 27, 2009, after a hearing, the trial court entered an amended judgment approving the settlement as set out in the parties’ petition.

Five months later, the employee filed a petition with the trial court asserting that no Medicare set-aside trust (“MSAT”) had been established as required by the judgment approving the parties’ settlement and that, despite that failure, the employer had ceased paying his medical expenses. The employee claimed that he was ready, willing, and able to pay $18,936.17 toward the cost of establishing the MSAT but that the employer had informed him that those funds would be inadequate to cover the employee’s portion for the MSAT, the cost of which exceeded the $83,936.17 figure represented to the employee before the settlement. The employee requested to interplead the $18,936.17 to the clerk of the trial court pending the disposition of those funds by the trial court. The employee also requested that the trial court order the employer to pay his accruing medical expenses pursuant to the 2003 judgment.

On January 6, 2010, the employer filed a response to the employee’s petition. In that response, the employer maintained that the parties had reached an agreement in November 2008 pursuant to which the employer would pay a maximum of $65,000 toward the cost of establishing the MSAT and that the employer had then obtained an estimate from a vendor that the cost of establishing the MSAT would be $88,936.17. According to the employer’s counsel, following approval of the settlement, the Centers for Medicare and Medicaid Services informed the parties that the cost of establishing the MSAT would be substantially higher than had been estimated. The employer contended that it was ready, willing, and able to pay the $65,000 that it had agreed to pay, but no more. The employer essentially maintained that the employee was obligated to pay the difference and that the employee was “repudiating” the settlement. The employer asserted that the employee had received funds from the third-party settlement that exceeded the employer’s liability for the employee’s medical expenses and that it therefore had no obligation to pay the employee’s accruing medical expenses. The employer petitioned the court to order the employee to pay all amounts necessary to establish the MSAT that exceeded $65,000.

On January 7, 2010, the trial court conducted a hearing on the matter. At that hearing, the attorney for the employee represented to the trial court that the employer had agreed to pay $65,000 to fund the MSAT and that the employee had agreed to fund “the remainder,” which, in the settlement petition, was represented by the employer to be $18,936.17. After the parties learned that the represented figure was inaccurate because of a “mistake” made by the vendor that had estimated the cost of funding the MSAT, the parties attempted to work out a new settlement to fund the MSAT, but to no avail. The employee had since incurred approximately $1,800 in medical expenses that the employer had refused to pay. Counsel for the employee claimed that, because the time had expired for the employer to obtain relief from the judgment approving the settlement and because the MSAT had not been established, the employer was required to continue paying the employee’s medical expenses. The attorney for the employee represented that the employee remained willing to work out a settlement with the employer to resolve the MSAT funding issue.

The employer’s attorney maintained that the parties had agreed in November 2008 that the employer would contribute $65,000 to fund the MSAT with the employee paying the remainder. At that time, according to the employer’s counsel, the parties did not know the cost of the MSAT, which the employer later obtained from the vendor.

On April 20, 2010, the trial court entered a judgment, finding that the parties had agreed that the employer would pay $65,000 toward funding the MSAT and that the employee “would be responsible for amounts required to fund the [MSAT] if they exceeded $65,000.” The trial court further found that the parties had represented to the court in their joint petition that the amount to fund the MSAT was $83,963.17, which, the trial court found, was a figure obtained by the employer and which had not been described as an “estimate.” The trial court concluded that the employer had induced the employee to agree to the settlement by representing that the employee would have to pay $18,963.17 as his portion of the cost of funding the MSAT. The trial court con-eluded that “[e]quity demands” that the employer pay the difference between what the employer represented was the cost to fund the MSAT and the actual cost to fund the MSAT and that the employee contribute only the $18,968.17 to which he had agreed, which amount the employee was to hold in trust until the MSAT was established. The trial court further ordered the employer to continue to pay the employee’s medical expenses as set out in the 2008 judgment until the MSAT was established, including those medical expenses already incurred to date. The employer appealed that judgment on June 1, 2010.

The employer first argues that it could not be ordered to pay the higher cost for funding the MSAT because, it says, in November 2008 the employee agreed to pay those costs. Whatever the terms of the parties’ settlement agreement in November 2008, those terms are immaterial to the proper disposition of this case. The parties submitted their settlement agreement to the trial court for its approval, pursuant to Ala.Code 1975, § 25-5-56. The judgment approving that settlement superseded any other agreement of the parties and now, like any other consent judgment, establishes the enforceable terms of the settlement. See Ex parte Ingalls Shipbuilding Corp., 32 Ala.App. 609, 613, 28 So.2d 808, 811 (1947) (“[I]f undisturbed[, the order approving the settlement] has the force and effect of a judgment on the basis of which an enforcement may be had for its satisfaction.”); and Birmingham Steel Erectors v. Haynes, 816 So.2d 494 (Ala.Civ.App.2001) (holding that the rights of parties are controlled by judgment approving workers’ compensation settlement and not by parol evidence of other terms). In its judgment approving the settlement, the trial court incorporated the terms of the settlement as represented to it in the joint petition filed by the parties in January 2009. In that petition, the parties submitted that the cost of funding the MSAT was $83,936.17 and that the employer would pay $65,000 toward that amount and the employee would pay the balance. The judgment approved the settlement on those terms only, with no requirement that the employee pay any amount beyond $18,936.17. Hence, we reject any contention that the employee is required to pay a different amount based on any preexisting agreement that was not approved by the trial court.

We do, however, agree that the judgment likewise does not require the employer to pay any additional amount. The judgment adopts the terms of the parties’ joint petition, which explicitly and unambiguously states that the employer shall pay no more than $65,000 to establish the MSAT. Any attempt to alter that arrangement by requiring the employer to pay more than the amount that it agreed to pay would constitute a substantive change to the terms of the settlement agreement and the judgment approving the settlement agreement and not an enforcement of their terms as the employee contends. A court cannot unilaterally modify or supplement the essential terms of a workers’ compensation settlement agreement that has been incorporated into a judgment. See Matthew’s Masonry Co. v. Aldridge, 25 So.3d 464, 469 (Ala.Civ.App.2009). Nothing in the Alabama Workers’ Compensation Act, Ala.Code 1975, § 25-5-1 et seq., authorizes a court to take such an unusual action in relation to a judgment approving a settlement.

The trial court justified its action on its finding that the employer had falsely represented the cost of funding the MSAT. Such a false representation, if proven by competent evidence, would have constituted a sound basis for vacating the judgment approving the settlement, see § 25-5-56; see also Burger-Phillips Co. v. Phillips, 234 Ala. 568, 176 So. 181 (1937), but it would not authorize the trial court to impose a new obligation on the employer that was not contained within the existing judgment. By referring to “equity” when ordering the employer to pay the additional cost of funding the MSAT, the trial court may have been relying on the equitable remedy of reformation, which allows a court to modify the express terms of a contract in cases in which the parties are mutually mistaken as to a material fact. See Ala.Code 1975, § 8-1-2. However, “a court, in reforming a contract, must reform it in such a way as to reflect the parties’ intentions; the court is not permitted to create a new contract for the parties.” Nichols v. Pate, 54 So.3d 398, 403 (Ala.Civ.App.2010) (citing Federated Guar. Life Ins. Co. v. Painter, 360 So.2d 309, 311 (Ala.1978)). Hence, we reverse that portion of the trial court’s judgment requiring the employer to pay the additional cost of funding the MSAT.

This court realizes that its holding leaves the parties at an impasse. Both parties are fully complying with their obligations under the judgment approving the settlement. The employee, on the one hand, has tendered payment of the $18,936.17 as required, and the employer, on the other hand, remains committed to paying the $65,000 it promised to pay. Each party requested the trial court to resolve that impasse by imposing the additional obligation on the other. The parties, however, simply failed to provide in their settlement agreement for the contingency that the cost of funding the MSAT could exceed $83,936.17, and, accordingly, the trial court could not grant either party’s request. Based on the issues raised in this appeal, it is not the province of this court to advise the parties on the appropri-. ate manner to settle their dispute; we may only hold the trial court in error for imposing a legally incorrect remedy.

The parties agreed that the establishment of the MSAT would relieve the employer of the payment of the employee’s future medical expenses. Because of the impasse, it is undisputed that the MSAT has not been established, and, for that reason, the employee maintains that he has a right to continued medical benefits. However, the employer points out that the parties further agreed that

“[i]f [the employer] is not relieved of all obligation to make further payments to [the employee] for worker’s compensation benefits, medical and rehabilitation expenses, [the employer] retains its right to reimbursement under Ala.Code [1975], § 25-5-11.”

The employer maintains that, even if it has not been relieved of its obligation to pay future medical benefits based on the failure to establish the MSAT, it retains the right to suspend the payment of future medical benefits under § 25-5-ll(a).

Although we agree that the employer still retains its rights under § 25-5-11, because it has not yet been relieved of its obligation to pay the employee’s future medical expenses, we do not agree that it has the right, under § 25-5-11, to unilaterally cease paying the future medical expenses as it claims. The employer maintains that it has such a right based solely on the trial court’s factual finding that the employee recovered more from his third-party settlement than the employer had previously paid in workers’ compensation disability and medical benefits. We reject this argument.

In Ex parte BE & K Construction Co., 728 So.2d 621 (Ala.1998), on remand, Bussen v. BE & K Construction Co., 728 So.2d 624 (Ala.Civ.App.1999), our supreme court held that, because an employer has only a right of “subrogation,” not a right of “reimbursement” or “credit,” as to future medical expenses, an employer may withhold payment of future medical expenses only until the future medical expenses received from the third party have been exhausted, after which time the employer or carrier must resume payment. 728 So.2d at 624. As was made clear in a series of subsequent cases, in order to withhold payment of future medical expenses, an employer must first prove the amount an employee recovered from the third-party settlement that was fairly attributable to his or her future medical expenses. See Ex parte Miller & Miller Constr. Co., Inc., 736 So.2d at 1105; Miller & Miller Constr. Co. v. Madewell, 829 So.2d 778, 780 (Ala.Civ.App.2002); Miller & Miller Constr. Co. v. Madewell, 878 So.2d 1171, 1174 (Ala.Civ.App.2003); and Skilstaf, Inc. v. Williams, 895 So.2d 916, 920-21 (Ala.Civ.App.2002), aff'd, 895 So.2d 924 (Ala.2004). Thus, the mere fact that an employee has recovered some unstated and uncategorized amount from a third party that exceeds the past amounts paid by the his or her employer for workers’ compensation disability and medical benefits does not alone entitle the employer to withhold payment of medical expenses.

In this case, the trial court did not make any finding as to the total amount of the employee’s third-party recovery, which was kept confidential, or the amount of the employee’s third-party recovery that was fairly attributable to the payment of his future medical expenses. The record indicates that the employer has not requested a hearing for that purpose as required by the foregoing caselaw. At the hearing held by the trial court on January 7, 2010, the employer did not present any evidence regarding the amount attributable to future medical expenses recovered by the employee from the third parties. Without producing evidence and receiving a determination of the amount of the third-party recovery fairly attributable to the employee’s future medical expenses, the employer cannot unilaterally withhold the payment of the employee’s future medical expenses. To the contrary, the employer remains obligated by the 2003 judgment to continue to pay those expenses, unless and until it is expressly relieved of that obligation by the trial court.

By reserving its rights under § 25-5-11 in the event it was not relieved of its obligation to continue to pay the employee’s medical expenses, the employer did not thereby gain the right to unilaterally terminate its right to pay the employee’s future medical expenses if the MSAT was not established. Therefore, we affirm that portion of the trial court’s judgment requiring the employer to continue to pay the employee’s medical expenses in accordance with the 2003 judgment. The trial court also required the employer to continue paying those medical expenses until the MSAT is established. We note, however, that, in the event the MSAT is not established, the employer’s obligation to pay the employee’s future medical expenses may also be suspended by following the procedure set out in Ex parte BE & K Construction Co., 728 So.2d at 624, and its progeny.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ„ concur.


text:
    J.W. and S.W. v. C.B.
    2100108.
    Court of Civil Appeals of Alabama.
    Feb. 25, 2011.
    Shannon R. Clark, Enterprise, for appellants.
   BRYAN, Judge.

J.W. (“the paternal grandfather”) and S.W. (“the paternal grandmother”) (hereinafter collectively referred to as “the paternal grandparents”) appeal from a judgment entered by the Coffee Juvenile Court (“the juvenile court”) following the issuance of an opinion from this court in J.W. v. C.B., 56 So.3d 693 (Ala.Civ.App.2010).

Procedural History

On July 21, 2008, the juvenile court adjudicated F.C.W. (“the child”) to be dependent, awarded physical custody of the child to the paternal grandparents, and awarded joint legal custody of the child to the paternal grandparents and S.B., the child’s maternal grandfather, and J.B., the child’s maternal grandmother. Id. at 695. In June 2009, C.B. (“the mother”) filed a petition to modify the July 2008 custody award, and, after a trial, the juvenile court, in December 2009, granted the mother’s custody-modification petition and awarded the mother legal and physical custody of the child. Id. at 695. The paternal grandparents and L.W., the father of the child, appealed the custody-modification judgment, and this court concluded that there was insufficient evidence to support the juvenile court’s conclusion that a material change in circumstances had occurred since the entry of the last custody judgment. Id. at 700. We remanded the case to the juvenile court with instructions to enter an order consistent with this court’s opinion reversing the custody-modification judgment. Id. at 700.

After this court issued a certificate of judgment in J.W., the juvenile court entered a judgment on October 7, 2010, in which it stated that, based on this court’s decision in Ex parte T.C., 68 So.3d 627 (Ala.Civ.App.2010), it was required to conclude that it had never obtained subject-matter jurisdiction over the mother’s custody-modification action. The juvenile court then vacated its December 2009 custody-modification judgment, and it stated that any petition to modify the juvenile court’s July 2008 custody judgment must be filed in the circuit court. The paternal grandparents filed a timely notice of appeal from that judgment.

Issue

On appeal, the paternal grandparents argue that the juvenile court erred in con-eluding that it did not have jurisdiction to consider the mother’s custody-modification action.

Standard of Review

The question presented on appeal is a question of law. Accordingly, this court will review the juvenile court’s judgment de novo, without giving any presumption of correctness to the juvenile court’s legal conclusions. See Ex parte Byrom, 47 So.3d 791, 794 (Ala.2010) (citing Simcala, Inc. v. American Coal Trade, Inc., 821 So.2d 197, 200 (Ala.2001)) (“Because the issue before us presents a pure question of law, we review the matter de novo, without any presumption of correctness.”).

Discussion

The juvenile court’s October 2010 judgment effectively dismissed the mother’s custody-modification action for lack of subject-matter jurisdiction. See State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1029 (Ala.1999) (when a trial court has no subject-matter jurisdiction over an action, the trial court has no alternative but to dismiss the action). The paternal grandparents argue that the juvenile court erred by relying on Ex parte T.C., supra, because, they allege, the present case is distinguishable from Ex parte T.C. because there is no indication that the children in Ex parte T.C. had ever been previously adjudicated dependent by the Baldwin Juvenile Court.

We acknowledge that the procedural history regarding the Baldwin Juvenile Court’s jurisdiction in Ex parte T.C. is not abundantly clear. In Ex parte T.C., this court divulged only that the father had been awarded primary physical custody of the children by the Baldwin Juvenile Court in 2006. 63 So.3d at 628. We concluded that the Baldwin Juvenile Court did not have subject-matter jurisdiction to decide the mother’s custody-modification petition in Ex parte T.C. because § 12-15-117(a), Ala.Code 1975, a provision in the new Alabama Juvenile Justice Act (“the AJJA”), § 12-15-101 et seq., Ala.Code 1975, provides that a juvenile court’s retained jurisdiction is limited ‘“to cases in which “a child has been adjudicated dependent, delinquent, or in need of supervision.” ’ ” Id. at 630 (quoting W.B.G.M. v. P.S.T., 999 So.2d 971, 975 (Ala.Civ.App.2008) (Pittman, J., concurring specially), quoting in turn § 12-15-117(a)) (emphasis added in W.B.G.M.). Therefore, we must presume that the Baldwin Juvenile Court had not previously adjudicated the children in Ex parte T.C. to be dependent, delinquent, or in need of supervision.

In Ex parte T.C., we also stated that, by making substantive changes to the former Juvenile Justice Act, see former § 12-15-1 et seq., Ala.Code 1975, regarding a juvenile court’s retained and original jurisdiction, see § 12-15-114(a), Ala.Code 1975, “[t]he clear intent of the Legislature was to provide that the juvenile courts of this state should no longer be deciding custody disputes except insofar as their resolution is directly incidental to core juvenile-court jurisdiction (such as in original paternity actions, see Ala.Code 1975, § 26-17-104).” Id. at 630-31. Apparently, the juvenile-court judge in the present ease interpreted that part of our decision in Ex parte T.C. as holding that a juvenile court does not have subject-matter jurisdiction over a custody-modification petition unless the custody-modification petition also contains an allegation of dependency, i.e., a core basis for juvenile-court jurisdiction. We take this opportunity to clarify our decision in Ex parte T.C.

Pursuant to the AJJA, if a juvenile court has previously adjudicated a child to be dependent, delinquent, or in need of supervision, the juvenile court has continuing jurisdiction over that child until the child attains the age of 21 or until the juvenile court terminates its jurisdiction over the child. See § 12-15-117(a); and Ex parte L.N.K., 64 So.3d 656, 658 (Ala.Civ.App.2010) (“By its plain terms, § 12-15-117(a) does not grant juvenile courts continuing jurisdiction over children unless they have been ‘adjudicated dependent, delinquent, or in need of supervision.’”). Nothing in the AJJA limits a juvenile court’s continuing jurisdiction pursuant to § 12-15-117(a) to proceedings in which the child is again alleged to be dependent, and nothing in Ex parte T.C. should be construed as limiting a juvenile court’s continuing jurisdiction in that manner.

Because the child in the present case had been previously adjudicated dependent by the juvenile court in July 2008, § 12-15-117(a) afforded the juvenile court continuing jurisdiction over the child until the child attained the age of 21 or until the juvenile court terminated its jurisdiction over the case involving the child before the child’s attainment of the age of 21. The record demonstrates that, at the time the mother filed her custody-modification petition in June 2009, the child had not yet attained the age of 21 and the juvenile court had not terminated its jurisdiction over the case involving the child. Accordingly, we conclude that the juvenile court had continuing jurisdiction over the child, and, thus, it had continuing jurisdiction to consider the mother’s custody-modification petition. Therefore, we conclude that the juvenile court erred in determining that it did not have subject-matter jurisdiction over the mother’s custody-modification petition.

Because we have found no basis for holding that the juvenile court could not exercise jurisdiction over the mother’s custody-modification action, we reverse the judgment of the juvenile court insofar as it dismissed the mother’s custody-modification action for lack of subject-matter jurisdiction. We remand the case with instructions to the juvenile court to vacate its October 7, 2010, judgment and to enter a judgment consistent with this court’s opinion in J.W., supra.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

      . There is an indication in the record on appeal that the juvenile court actually adjudicated the child dependent on June 21, 2008. Regardless, it is undisputed that the juvenile court adjudicated the child dependent in 2008.


text:
    Ex parte Jennifer Ann VEST (Herron). (In re Jennifer Ann Vest (Herron) v. David Jeremy Vest).
    2100127.
    Court of Civil Appeals of Alabama.
    Feb. 25, 2011.

      Ronald (Chip) Herrington of Blacksher & Herrington, LLC, Mobile, for petitioner.
    G. Houston Howard II, Wetumpka, for respondent.
   BRYAN, Judge.

Jennifer Ann Vest (Herron) (“the mother”) petitions this court for a writ of mandamus directing the Elmore Circuit Court to vacate its order denying the mother’s motion to dismiss or transfer this postdi-vorce proceeding, which David Jeremy Vest (“the father”) commenced in the El-more Circuit Court. We deny the petition.

Motion to Strike

As a threshold matter, the father moves this court to strike (1) two pleadings attached to the mother’s mandamus petition that were filed in the Mobile Circuit Court and (2) statements in the mother’s petition and briefs based on those two pleadings. As the ground of his motion, the father asserts that those two pleadings were not before the Elmore Circuit Court when it denied the mother’s motion to dismiss or transfer. In support of his motion, the father submits an affidavit signed by the clerk of the Elmore Circuit Court. The clerk’s affidavit certifies that the pleadings attached to the affidavit constitute all the pleadings that were filed in the father’s postdivorce proceeding between June 25, 2010, the date the father commenced his postdivorce proceeding, and September 29, 2010, the date the El-more Circuit Court denied the mother’s motion to dismiss or transfer. The pleadings attached to the clerk’s affidavit do not include the two pleadings that are the subject of the father’s motion. In ruling on a petition for the writ of mandamus, “this [c]ourt is bound by the record, and it cannot consider a statement or evidence in a party’s brief that was not before the trial court. Ex parte American Res. Ins. Co., 668 So.2d 932, 986 (Ala.1995).” Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala.2002). Therefore, because the two pleadings that are the subject of the father’s motion were not before the El-more Circuit Court when it denied the mother’s motion to dismiss or transfer, we grant the father’s motion with respect to those two pleadings and any statements in the mother’s petition and briefs that are based solely on those two pleadings.

Procedural History

On June 25, 2010, the father filed in the Elmore Circuit Court a motion seeking a modification of the provision awarding the mother custody of the parties’ minor daughter in the parties’ divorce judgment, which had been entered by the Elmore Circuit Court in 2002, and a finding of contempt against the mother based on allegations that she had violated the divorce judgment by denying the father the visitation to which he was entitled by virtue of the visitation provision in the divorce judgment. On July 23, 2010, the mother filed a motion to dismiss the father’s postdivorce proceeding on the ground that venue was not proper in the Elmore Circuit Court because, she said, (1) she had previously commenced a postdivorce proceeding in the Mobile Circuit Court that was still pending and the father had neither objected to venue in that proceeding nor moved the Mobile Circuit Court to transfer that proceeding to the Elmore Circuit Court, and (2) neither party was then living in Elmore County and the father had lived in Mobile County for over two years. On August 6, 2010, the mother amended her motion to assert an additional ground and to seek, as an alternative to dismissal, a transfer of the father’s postdivorce proceeding to the Mobile Circuit Court. The additional ground the mother asserted was that the father had waived any right he may have had to object to venue in the Mobile Circuit Court (1) by admitting in the mother’s postdivorce proceeding in Mobile Circuit Court that he had lived in Mobile County and (2) by failing to assert an objection to venue in the Mobile Circuit Court. Following a hearing, the Elmore Circuit Court, on September 29, 2010, entered an order denying the mother’s motion.

On November 8, 2010, the mother petitioned this court for a writ of mandamus. After a preliminary review of the petition, this court called for an answer to the petition and briefs in support of, and in opposition to, the mother’s petition.

Standard of Review

“A petition for the writ of mandamus is the appropriate means by which to challenge a trial court’s order regarding a change of venue. Ex parte Sawyer, 892 So.2d 898, 901 (Ala.2004). The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows ‘ “ ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ” ’ Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000) (quoting Ex parte Gates, 675 So.2d 371, 374 (Ala.1996)); Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala.1999).”

Ex parte Children’s Hosp. of Alabama, 931 So.2d 1, 5-6 (Ala.2005).

“Applying the general rules to a petition for a writ of mandamus challenging a ruling related to venue, this Court has held: ‘The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.’ Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala.1987). ‘Our review is limited to only those facts that were before the trial court.’ Ex parte Kane, 989 So.2d 509, 511 (Ala.2008).”

Ex parte De Vega, 65 So.3d 886, 891 (Ala.2010).

Analysis

The mother argues that the El-more Circuit Court erred in denying her motion to dismiss or transfer the father’s postdivorce proceeding because, she says, § 6-5^40, Ala.Code 1975, bars the father’s postdivorce proceeding. Section 6-5-440 provides:

“No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pen-dency of the former is a good defense to the latter if commenced at different times.”

Regarding § 6-5-440, the supreme court has stated:

“This Court has held that the obligation imposed on a defendant under Rule 13(a), Ala. R. Civ. P., to assert compulsory counterclaims, when read in conjunction with § 6-5-440, Ala.Code 1975, which prohibits a party from prosecuting two actions for the same cause and against the same party, is tantamount to making the defendant with a compulsory counterclaim in the first action a ‘plaintiff in that action (for purposes of § 6-5-440) as of the time of its commencement. See, e.g., Ex parte Parsons & Whittemore Alabama Pine Constr. Corp., 658 So.2d 414 (Ala.1995); Penick v. Cado Systems of Cent. Alabama, Inc., 628 So.2d 598 (Ala.1993); Ex parte Canal Ins. Co., 534 So.2d 582 (Ala.1988). Thus, the defendant subject to the counterclaim rule who commences another action has violated the prohibition in § 6-5-440 against maintaining two actions for the same cause. We affirm the general rule expressed in these cases; to do otherwise would invite waste of scarce judicial resources and promote piecemeal litigation.”

Ex parte Breman Lake View Resort, L.P., 729 So.2d 849, 851 (Ala.1999). The mother argues that the claim asserted in the post-divorce proceeding commenced by the father in the Elmore Circuit Court constitutes a compulsory counterclaim in the postdivorce proceeding she commenced in the Mobile Circuit Court and, therefore, that his commencement of a postdivorce proceeding in the Elmore Circuit Court violates § 6-5-440.

Although the mother asserted in the Elmore Circuit Court that the post-divorce proceeding the father had commenced in that court was due to be dismissed or transferred due to the pendency of her previously commenced postdivorce proceeding in the Mobile Circuit Court, she neither cited § 6-5-440 to the Elmore Circuit Court in support of that assertion nor asserted in the Elmore Circuit Court that the claim asserted in the motion commencing the father’s postdivorce proceeding in the Elmore Circuit Court constituted a compulsory counterclaim in the mother’s postdivorce proceeding. In ruling on the mother’s mandamus petition, we cannot consider an argument that she did not present to the Elmore Circuit Court. See Ex parte American Res. Ins. Co., 58 So.3d 118, 121 n. 2 (Ala.2010) (“Restoration Coatings did not argue to the trial court that Mobile County was an improper venue under § 6-3-7(a), Ala.Code 1975. Thus, any such argument has been waived.”). Moreover, even if we could consider the mother’s argument that the claim asserted in the father’s motion constitutes a compulsory counterclaim barred by § 6-5-440, the mother did not establish in the Elmore Circuit Court that she was entitled to prevail on the merits of that argument because she did not file in the Elmore Circuit Court a copy of the pleading with which she commenced her postdi-vorce proceeding and, thus, failed to establish that the claim asserted in the father’s postdivorce proceeding was a compulsory counterclaim in her postdi-vorce proceeding in the Mobile Circuit Court. Therefore, we cannot hold that the Elmore Circuit Court erred in denying the mother’s motion to dismiss or transfer based on the mother’s argument that § 6-5-440 barred the father’s postdivorce proceeding. See Ex parte De Vega, supra, and Ex parte Pike Fabrication, supra.

The mother also argues that the Elmore Circuit Court erred in denying her motion to dismiss or transfer because, she says, venue is not proper in the Elmore Circuit Court because, she says, the father had been residing in Mobile County for more than six months when the mother commenced her postdivorce proceeding in the Mobile Circuit Court. However, although the mother alleged in her motion to dismiss or transfer that venue was not proper in the Elmore Circuit Court because, she said, the father had been residing in Mobile County for over two years and she had been residing in Mississippi, she did not submit any evidence proving those allegations. In the absence of any evidence proving those allegations, we cannot hold that the Elmore Circuit Court erred in denying the mother’s motion to dismiss or transfer based on the mother’s second argument. Id.

The mother also argues that the Elmore Circuit Court erred in denying her motion to dismiss or transfer because, she says, the father did not object to venue in her postdivorce proceeding in the Mobile Circuit Court and thereby waived any objection to venue in the Mobile Circuit Court. However, the mother did not submit to the Elmore Circuit Court the pleadings that had been filed in her postdivorce proceeding in the Mobile Circuit Court, and, consequently, there was no evidence before the Elmore Circuit Court proving that the father had waived his objection to venue in the Mobile Circuit Court. Therefore, we cannot hold that the Elmore Circuit Court erred in denying the mother’s motion to dismiss or transfer based on the mother’s third argument.

Accordingly, the mother has not established that she has a clear legal right to an order compelling the Elmore Circuit Court to vacate its order denying the mother’s motion to dismiss or transfer; therefore, we deny the mother’s petition for a writ of mandamus. See Ex parte Children’s Hosp. of Alabama, supra.

PETITION DENIED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

      . Section 30-3-5, Ala.Code 1975, provides:
      "Notwithstanding any law to the contrary, venue of all proceedings for petitions or other actions seeking modification, interpretation, or enforcement of a final decree awarding custody of a child or children to a parent and/or granting visitation rights, and/or awarding child support, and/or awarding other expenses incident to the support of a minor child or children, and/or granting post-minority benefits for a child or children is changed so that venue will lie in: (1) the original circuit court rendering the final decree; or (2) in the circuit court of the county where both the custodial parent or, in the case of post-minority benefits, where the most recent custodial parent, that parent having custody at the time of the child’s attaining majority, and the said child or children have resided for a period of at least three consecutive years immediately preceding the filing of the petition or other action. The current or most recent custodial parent shall be able to choose the particular venue as herein provided, regardless of which party files the petition or other action.”


author: WELCH, Judge.

text:
    Hermanno M. MIZUSAWA v. STATE of Alabama.
    CR-08-1517.
    Court of Criminal Appeals of Alabama.
    Aug. 27, 2010.
    Rehearing Denied Dec. 10, 2010.
    Certiorari Denied Feb. 11, 2011 Alabama Supreme Court 1100365.

      Joseph P. Van Heest, Montgomery (withdrew 7/23/10); Jeffery C. Duffey, Montgomery; Paul F. Enzinna, Washington, D.C.; Benjamin Barton Fitzpatrick, Washington D.C.; and Jeffrey A. Lamken, Washington, D.C., for appellant.
    Troy King, atty. gen., and John J. Davis, asst. atty. gen., for appellee.
   WELCH, Judge.

Hermanno M. Mizusawa was convicted of one count of possession of obscene matter containing a visual reproduction of a person under the age of 17 years, a violation of § 13A-12-192(b), Ala.Code 1975. The trial court sentenced Mizusawa to 8 years in prison; however, the trial court suspended the sentence and ordered Mizu-sawa to serve 18 months in prison followed by 2 years’ probation.

Facts

Because Mizusawa does not challenge the sufficiency of the evidence on appeal, the following brief rendition of the facts will suffice:

The indictment charged Mizusawa as follows:

“Mizusawa ... did knowingly possess any obscene matter containing a visual reproduction of a person under the age of 17 years engage in any act of sadomasochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct, in violation of Section 13A-12-192(b), Code of Alabama, 1975.”

(C. 16.)

Section 13A-12-192(b), Ala.Code 1975, provides:

“Any person who knowingly possesses any obscene matter containing a visual reproduction of a person under the age of 17 years engaged in any act of sadomasochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct shall be guilty of a Class C felony.”

(Emphasis added.)

The State’s evidence tended to show that 350 images depicting young children engaged in the prohibited acts in § 13A-12-192(b) were found on a computer recovered from Mizusawa’s bedroom. At trial, the State introduced 30 of the 350 images. Sergeant Gary Graves, a computer forensic investigator, testified that during his investigation, he determined that three individuals were documented as users of the computer; Mizusawa was the “administrator” for the computer and, as such, he had full control over its operating system. The images retrieved from the computer were found under Mizusawa’s user name.

Mizusawa, a computer-systems analyst, testified that he did not save or download the obscene images onto the hard drive of the computer taken from his bedroom nor was he aware that the images were on the computer. He hypothesized that the images may have accidentally been downloaded onto the computer while he performed data-recovery work. According to Mizusawa, he connected the computer from which the images where taken to the hard drive of computers belonging to other people when he was attempting to recover lost data for those people. He testified that it was possible that the obscene images came from the hard drive of another computer. Mizusawa also surmised that, although he was listed as the administrator for the computer, several individuals had access to the computer and had used it over a period of time. Therefore, according to Mizusawa, the other users could be responsible for the obscene images discovered on the computer.

The trial court charged the jury, in pertinent part, as follows:

“The law says it is unlawful to knowingly possess any obscene matter containing a visual reproduction of a person under the age of seventeen years engaged in any act of sadomasochistic abuse, sexual intercourse, sexual excitement, masturbation, genitalia nudity, genital nudity, or other sexual conduct. To convict, the State must prove beyond a reasonable doubt each of these following elements of the act of possession of obscene matter: That the defendant, Mr. Mizusawa, was in the possession of obscene matter; that the obscene matters that he was in possession of were visual reproductions of persons under the age of seventeen years; that the visual reproductions were of persons under the age of seventeen years while engaged in acts of sadomasochistic abuse, sexual intercourse, sexual excitement, masturbation, genitalia nudity, or other sexual conduct; and that the defendant knowingly possessed this obscene matter.
“Now, for the purposes of this statute, knowingly means that the defendant is aware of the character and the content of the matter that he possessed or that the defendant recklessly disregarded circumstances suggesting the character and content of the matter.”

(R. 501-02.)(Emphasis added.) Mizusawa timely objected to the trial court’s jury instruction before the jury retired, and he requested that his objection be recorded. See Rule 21.3, Ala. R.Crim. P. (“No party may assign as error the court’s ... giving of an erroneous, misleading, ... or otherwise improper oral charge, unless the party objects thereto before the jury retires to consider its verdict, stating the matter to which he or she objects and the grounds of the objection.”). However, the trial court stated, “Not right now,” and a bench conference was conducted but not recorded. (R. 508.) After the jury retired to deliberate, the trial court allowed Mizusa-wa to place his objection to the jury instructions on the record. At that time the following occurred:

“MR. VAN HEEST [defense counsel]: I would maintain despite the fact that the definition of knowingly under -190, Section -190(4) has a(4)(b) and includes recklessly—
“THE COURT: Excuse me. That is 13A-12-190(4).
“MR. VAN HEEST: The definition of knowingly subsection (b). While that statute does include a person recklessly disregards circumstances as the Court read, we believe that the Ward [v. State, 994 So.2d 293, 301 (Ala.Crim.App.2007),] case again would indicate that something more knowingly has to be knowingly and not recklessly. And that knowingly has to be seeking out, deliberately seeking out images as well and not again recklessly. In this case, we object to that because it’s our concern that the jury could hear reckless and think that because of the facts in this case where Mr. Mizusawa was passed out drunk and was not exercising proper supervision that that could be considered that he somehow knowingly possessed the obscene material. For that reason, we objected as well.”

(R. 514-15.)

Argument

Mizusawa argues on appeal that the trial court committed reversible error because, he says, its jury instruction defining the word “knowingly” decreased the State’s burden of proof, which allowed the jury to find him guilty under a lesser evidentiary standard. He argues that the instruction containing the language “or that the defendant recklessly disregarded circumstances suggesting the character and content of the matter” allowed jurors to find him guilty based on the less culpable state of mind of “recklessly” rather than the more culpable state of mind of “knowingly.” Mizusawa suggests that the trial court gave an incorrect instruction because, he says, the trial court erroneously tracked the definition of “knowingly” in the Alabama Code 1975, Art. 4, Division 4, entitled “Obscene Materials Containing Visual Reproduction of Children,” at § 13A-12-190(4). Section 13A-12-190(4), Ala.Code 1975, states:

“For the purposes of this division, the following terms shall have the meanings respectively ascribed to them by this section:
“(4) Knowingly. A person knowingly disseminates[] or publicly displays[ ] obscene matter when the person knows the nature of the matter. A person knows the nature of the matter when either of the following circumstances exist:
“a. The person is aware of the character and content of the matter; or
“b. The person recklessly disregards circumstances suggesting the character and content of the matter.”

(Emphasis added.)

Mizusawa argues that the definition of the term “knowingly” in § 13A-12-190(4), Ala.Code 1975, does not apply to possession of obscene matter as defined in § 13A-12-192(b). Mizusawa explains that there are offenses defined within Division 4, “Obscene Materials Containing Visual Reproduction of Children,” that require proof of the elements of knowingly dis seminating or knowingly displaying publicly obscene matter. For example, § 13A-12-191 states that “[a]ny person who shall knowing disseminate or display publicly any obscene matter ... shall be guilty of a Class B felony.” Section 13A-12-192(a) states that “[a]ny person who knowingly possesses with intent to disseminate any obscene matter ... shall be guilty of a Class B felony.” In contrast, Mizusawa notes, neither dissemination nor public display is an element of § 13A-12-192(b), which prohibits “[a]ny person [from] knowingly possessing] any obscene matter ...” A violation of § 13A-12-192(b) is classified as a Class C felony. Thus, according to Mizusawa, the definition of “knowingly” set forth in § 13A-12-190(4), Ala.Code 1975, applies only to an offense requiring proof of disseminating or publicly displaying obscene matter, but not to “simple” possession as was charged here. Mizusawa argues that “knowingly” as defined in the Alabama Code 1975, Chapter 2, entitled “Principles of Criminal Liability,” at § 13A-2-2(2), is the definition applicable to “simple” possession of obscene matter. There, “knowingly” is defined as:

“A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of that nature or that the circumstance exists.”

Analysis

A trial court has broad discretion in formulating its jury instructions, provided that those instructions are accurate reflections of the law and facts of the case. Knotts v. State, 686 So.2d 431, 456 (Ala.Crim.App.1995), aff'd 686 So.2d 486 (Ala.1996); Clark v. State, 621 So.2d 309, 324 (Ala.Crim.App.1992). Moreover, the trial court’s oral charge to the jury cannot be viewed in bits and pieces but must be viewed in its entirety. Jones v. State, 644 So.2d 1336, 1338 (Ala.Crim.App.1994).

Section 13A-12-190(4) does not actually define the word “knowingly”; it defines the terms “knowingly disseminates” and “knowingly publicly displays.” These terms are defined for application to offenses containing the elements of “disseminate” and/or “display publicly,” and as defined in § 13A-12-190(4), offenses containing these elements may be committed recklessly. Thus, the definitions provided in § 13A-12-190(4) are not applicable to the charge of simple possession defined in § 13A-12-192(b), because subsection (b) does not require proof that the accused disseminated or publicly displayed obscene material. The mens re necessary to violate § 13A-12-192(b) is “knowingly” as defined in § 13A-2-2(2)(“A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of that nature or that the circumstance exists.”).

Therefore, the trial court erred when it charged the jury it could find Mizusawa guilty of possession of obscene matter, as defined under § 13A-12-192(b), if the jurors found that Mizusawa “recklessly disregarded circumstances suggesting the character and content of the matter.” (R. 502.) This instruction is not a correct statement of law. A correct statement of the law would require the jury to find that the defendant possessed obscene matter and that he was “aware that his conduct is of that nature or that the circumstance exists.” § 13A-2-2(2), Ala. Code, 1975. Therefore, here, the jury was erroneously instructed that it could, as an alternative to finding a mens re of knowingly, find Mizusawa guilty if he had acted recklessly; this instruction lowered the State’s burden of proof.

We must, therefore, determine whether the erroneous jury charge was harmless in light of the entire jury charge. See Rule 45, Ala. R.App. P. Mizusawa testified that the obscene matter could have been downloaded onto the computer by other people who had access to the computer or that he could have inadvertently downloaded the obscene matter onto the computer during the process of restoring hard drives in computers belonging to other people. If given the opportunity, as it was in the instant case, the jury could have interpreted Mizusawa’s theory of defense as reckless conduct. In light of Mi-zusawa’s defense, we cannot construe the charge, when taken as a whole, in such a way as to not mislead the jury. Essentially, the challenged jury charge expanded the scope of the indictment so that it permitted the jury to convict Mizusawa of conduct not prohibited by the statute nor charged in the indictment — the reckless possession of obscene matter. This error was not harmless.

Because the erroneous jury instruction may have contributed to the jury’s verdict, this Court concludes that the erroneous jury charge adversely affected Mizusawa’s substantial rights and thus was not harmless. Rule 45, Ala. R.App. P. Accordingly, the judgment of the circuit court is reversed, and this cause remanded for a new trial.

REVERSED AND REMANDED.

KELLUM and MAIN, JJ., concur. WISE, P.J., and WINDOM, J., concur in the result.

      . Mizusawa cited Ward in a requested jury charge requesting that the jury be instructed that in order to convict Mizusawa the jury must find that he "knowingly possessed obscene matter, ... sought out the obscene matters, knew they were able to be located on the computer, and had the ability to exercise dominion and control over those images on the computer.” (C. 73.) Ward states: "After considering Alabama's definition of possession in relation to computer images, we believe that the question becomes: Did the defendant specifically seek out the prohibited images and did he have the ability to exercise dominion and control over those images?” Ward, 994 So.2d at 301.

      . Section 13A — 12—190(1) defines "disseminate” as "[t]o sell, lend or show for monetary consideration or to offer or agree to do the same.”

      . Section 13A — 12—190(2) defines "display publicly” as "[t]he exposing, placing, posting, exhibiting or in any fashion displaying in any location, whether public or private, an item in such a manner that it may be readily seen and its content or character distinguished by normal unaided vision viewing it from a public thoroughfare, depot or vehicle.”

      . For purposes of this opinion, possession under § 13A-12-192(b) shall be referred to as "simple possession."


author: WINDOM, Judge. KELLUM, Judge,

text:
    Rashad LEE v. STATE of Alabama.
    CR-10-0043.
    Court of Criminal Appeals of Alabama.
    Feb. 4, 2011.
    Rashad Lee, pro se.
    Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   WINDOM, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WELCH, P.J., concurs. KELLUM, J., concurs specially, with opinion.

KELLUM, Judge,

concurring specially.

I -write specially to note that this action appears to be Rashad Lee’s seventh Rule 32, Ala. R.Crim. P., petition challenging his 2000 guilty-plea conviction for murder and his resulting sentence of life in prison. I believe that allowing Lee to file multiple petitions for postconviction relief in which his claims are either precluded or without merit wastes scarce judicial resources. Therefore, I would encourage the circuit court to consider adopting sanctions like those proposed in Peoples v. State, 531 So.2d 323 (Ala.Crim.App.1988), and Procup v. Strickland, 792 F.2d 1069 (11th Cir.1986), to prevent future frivolous litigation on the part of Lee and other similarly situated inmates. See Ex parte Thompson, 38 So.3d 119 (Ala.Crim.App.2009).


text:
    Garron BETHEL v. STATE of Alabama.
    CR-10-0176.
    Court of Criminal Appeals of Alabama.
    Feb. 4, 2011.
    Garrón Bethel, pro se.
    Troy King, atty. gen., and P. David Bjurberg, asst. atty. gen., for appellee.
   WINDOM, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WELCH, P.J., concurs. KELLUM, J., concurs specially, with opinion.

KELLUM, Judge,

concurring specially.

I write specially to note that this action appears to be Garrón Bethel’s sixth Rule 32, Ala. R.Crim. P., petition challenging his 1998 convictions for third-degree receiving stolen property and two counts illegal possession of credit cards and his resulting concurrent sentences to 20 years’ imprisonment. I believe that allowing Bethel to file multiple petitions for postconviction relief in which his claims are either precluded or without merit wastes scarce judicial resources. Therefore, I would encourage the circuit court to consider adopting sanctions like those proposed in Peoples v. State, 531 So.2d 323 (Ala.Crim.App.1988), and Procup v. Strickland, 792 F.2d 1069 (11th Cir.1986), to prevent future frivolous litigation on the part of Bethel and other similarly situated inmates. See Ex parte Thompson, 38 So.3d 119 (Ala.Crim.App.2009).


author: PER CURIAM.

text:
    Tony SHIRLEY v. STATE of Alabama.
    CR-09-1817.
    Court of Criminal Appeals of Alabama.
    Feb. 25, 2011.

      Tony Shirley, pro se.
    Troy King, atty. gen., and James H. Rutter III, asst. atty. gen., for appellee.
   PER CURIAM.

Tony Shirley was convicted of felony driving under the influence, in violation of § 32-5A-191 (a)(2), Ala.Code 1975, pursuant to a guilty plea on December 1, 2003. He was sentenced to 10 years’ imprisonment; that sentence was suspended, and he was ordered to serve five years on probation. Shirley violated his probation by being convicted of another driving-under-the-influence charge, and his probation was revoked in 2008. Thereafter, Shirley filed a petition for writ of habeas corpus, alleging that the trial court was without jurisdiction to enhance his sentence to one imposed for a felony by using three prior driving-under-the-influence convictions from municipal courts. A hearing was held on Shirley’s petition, and the trial court denied the petition, holding that Shirley’s failure to appeal his 2003 conviction or to previously raise this claim precluded his ability to raise it in the present petition.

This matter has previously been discussed and determined by the Alabama Supreme Court. In Ex parte Holbert, 4 So.3d 410 (Ala.2008), the Court concluded that municipal convictions for driving under the influence are not convictions for violations of § 32-5A-191, Ala.Code 1975, and therefore are not subject to § 32-5A-191(h), which enhances a fourth or subsequent conviction for driving under the influence to a Class C felony. The Court opined:

“We recognize that many municipal DUI ordinances have adopted the language of § 32-5A-191. However, an individual convicted of violating a municipal ordinance has not been convicted of violating § 32-5A-191 merely because the ordinance adopted the language of § 32-5A-191. We note that the Court of Criminal Appeals recently and correctly held that, although a municipal DUI ordinance may have adopted the language of § 32-5A-191, the municipal ordinance and § 32-5A-191 set out separate offenses. See City of Decatur v. Lindsey, 989 So.2d 1157, 1164 (Ala.Crim. App.2007), writ quashed Ex parte Lindsey, 989 So.2d 1164 (Ala.2008).”

Ex parte Holbert, 4 So.3d at 415 (Ala.2008).

The State argues that because Shirley was sentenced five years before the Supreme Court’s holding in Ex parte Holbert, his sentence was legal when he was sentenced. However, this court has applied this holding under facts where the commission of the offense pre-dated the decision in Holbert. In Johnston v. State, 45 So.3d 376 (Ala.Crim.App.2009), this court determined that § 32-5A-191(o), which was added to the statute in a 2006 amendment, could not be applied to a June 24, 2004, offense. However, this court determined that Ex parte Holbert applied and barred the use of two of the prior convictions used to enhance his sentence that had been municipal convictions. Johnston had been sentenced on September 12, 2007. Johnston v. State, 45 So.3d at 378.

Similarly, in Moore v. State, 40 So.3d 750 (Ala.Crim.App.2009), this court determined that prior municipal convictions had been improperly used to enhance Moore’s sentence because “[w]hile Moore’s conviction for felony DUI was pending on appeal, our Supreme Court released Ex parte Holbert, 4 So.3d 410 (Ala.2008).” Moore v. State, 40 So.3d at 752.

Moreover, the circuit court’s holding that this issue was precluded because Shirley did not appeal his conviction and sentence is incorrect because this is a jurisdictional matter.

“The implication of the Supreme Court’s decision in Holbert is jurisdictional in nature. In Holbert, the Supreme Court held that the trial court erred in including Holbert’s municipal convictions in the total number of convictions necessary to constitute a felony offense of DUI under § 32-5A-191(h). 4 So.3d at 416. In the instant case, the circuit court sentenced Moore based on the erroneous inclusion of the municipal DUI convictions. Thus, the sentence imposed by the circuit court exceeded the maximum authorized by law. ‘Matters concerning unauthorized sentences are jurisdictional.’ Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994). It is well settled that jurisdictional matters are of such magnitude that appellate courts may take notice of them at any time and may do so even ex mero motu. Nunn v. Baker, 518 So.2d 711 (Ala.1987); State v. Crittenden, 17 So.3d 253 (Ala.Crim.App.2009); State v. Isbell, 955 So.2d 476 (Ala.Crim.App.2006). Therefore, this Court may take notice of an illegal sentence, even though Moore did not raise the issue in the circuit court or in his brief on appeal. See, e.g., McCall v. State, 794 So.2d 1243 (Ala.Crim.App.2000); Pender v. State, 740 So.2d 482 (Ala.Crim.App.1999).”

Moore v. State, 40 So.3d at 752-53.

Because Shirley was illegally sentenced for a Class C felony pursuant to § 32-5A-191(h), Ala.Code 1975, based on municipal convictions, the circuit court erred in denying his petition for a writ of habeas corpus because “the trial court erred in counting [Shirley’s] prior municipal convictions toward the total number of convictions necessary to constitute the felony offense of DUI under § 32-5A-191(h).” Ex parte Holbert, 4 So.3d at 416. Therefore, the judgment is due to be reversed and the case remanded.

REVERSED AND REMANDED.

WELCH, P.J., and KELLUM, J., concur. WINDOM, J., concurs in the result.

      . The record in this case contains a Rule 32, Ala.R.Crim.P., petition filed on September 8, 2009, which raised the same issue concerning the municipal convictions, as well as another issue. There is no indication in the record as to whether this is a Rule 32 petition. The State was ordered to respond, but there is also no indication that the State did so. According to the case-action summary, a petition for a writ of habeas corpus was filed on April 23, 2010, and a second petition for a writ of habeas corpus was filed on June 15, 2010. The petition for a writ of habeas corpus contained in the record was the latter. (C. 85-87.) This petition is due to be treated as a Rule 32 petition according to its substance. See Ex parte Deramus, 882 So.2d 875 (Ala.2002) (motion should have been treated as one for a writ of habeas corpus because the pleading must be construed according to its substance, not its style). Miller v. State, 766 So.2d 990, 991 (Ala.Crim.App.2000) (" ‘A petition for a writ of habeas corpus contesting the validity of a conviction should [be] treated as a petition for post-conviction relief.’ ”).