author: MOORE, Judge.

text:
    M.G. v. J.T.
    2110179.
    Court of Civil Appeals of Alabama.
    Feb. 24, 2012.

      William C. Porter, Cullman, for appellant.
    Andria Richter, Cullman, guardian ad litem, for B.T.
   MOORE, Judge.

M.G. (“the mother”) appeals from a judgment of the Cullman Juvenile Court (“the juvenile court”) declaring B.T. (“the child”), who was born on November 26, 1996, dependent and awarding custody of the child to J.T., the child’s stepmother (“the stepmother”).

Procedural History

On October 24, 2011, the stepmother filed a dependency petition alleging that the child’s father, H.T. (“the father”), had died; that she feared for the child’s safety around the mother because there were drugs around the mother’s home; that the mother had not paid child support; that the child, who was 14 years old, had been living with the stepmother since she was 5 years old; and that the mother had not been in the child’s life “much at all” and had visited with the child only 3 times in the year preceding the filing of the petition. That same day, the juvenile court entered an order appointing a guardian ad litem for the child and scheduling a hearing on the stepmother’s petition for October 27, 2011. On October 27, 2011, the juvenile court entered a judgment stating:

“This case is before the court on the Petition of the step-mother ... for Custody of [the child]. The Petition alleges that [the father] passed away on October 22, 2011. Furthermore, the Petition alleges that the ... mother ... has failed to support the minor child by never paying child support as ordered in a previous divorce decree and not exercising visitation on a regular basis as provided in the divorce decree. Additionally, the Petition alleges there may be illegal drug use around the mother’s home. The mother was not served with the Petition and was not present in court.
“The Court finds that after review of the Pleadings and discussion with the [guardian ad litem] and the attorney for the [stepmother] ... the minor child is dependent and in need of care and supervision. Accordingly, it is hereby ORDERED, ADJUDGED, AND DECREED as follows:
“1. [The stepmother] is awarded the full care, custody, and control of the minor child ... and is granted the authority to authorize medical treatment, including surgical procedures as necessary; coordinate with school and educational officials on issues concerning the minor child; and to coordinate with officials from the Social Security Administration to secure survivor benefits due the minor child.
“2. The grant of custody shall be continuing until the child is emancipated and shall grant [the stepmother] all rights and privileges necessary to act in loco parentis for the benefit of the minor child.”

The mother was served with the petition on October 31, 2011, and, on that same day, she filed, pro se, a letter requesting custody of the child. She alleged that the stepmother’s son had sexually abused the child, disputed the stepmother’s allegations regarding the mother’s lack of visitation with the child, and asserted that the father and the stepmother had prevented her from being a part of the child’s life. On November 3, 2011, the mother filed, through counsel, a motion to set aside or vacate the judgment for lack of jurisdiction. The mother argued that the juvenile court had violated her due-process rights to notice and an opportunity to be heard and had failed to conduct an evidentiary hearing. On November 14, 2011, the mother filed her notice of appeal to this court. On December 1, 2011, the juvenile court entered an order setting the mother’s motion for a hearing on the next available docket. On December 4, 2011, the juvenile court vacated its December 1, 2011, order because the mother had filed her appeal.

Discussion

On appeal, the mother argues that the juvenile court lacked jurisdiction to enter its October 27, 2011, judgment. Specifically, she argues that her due-process rights were violated because she was not given notice or an opportunity to be heard, no evidentiary hearing was held, the juvenile court'held improper ex parte communications with the guardian ad litem and the stepmother’s attorney, and the guardian ad litem failed to comply with her duty to investigate.

We initially note that the mother’s arguments regarding the alleged ex parte communications and the guardian ad litem’s alleged failure to investigate were not raised in the juvenile court. “This court cannot consider arguments raised for the first time on appeal. Our review is restricted to the evidence and the arguments considered by the trial court.” S.K. v. Madison Cnty. Dep’t of Human Res., 990 So.2d 887, 895 (Ala.Civ.App.2008). Thus, we decline to consider the mother’s arguments on those issues.

The mother next asserts that the juvenile court’s failure to give her notice and an opportunity to be heard and to hold an evidentiary hearing violated her due-process rights and, thus, that the juvenile court’s judgment is void for want of due process of law.

“ ‘It is well settled that “[i]n dealing with such a delicate and difficult question — the welfare of a minor child — due process of law in legal proceedings should be observed,” which necessarily includes “a hearing or opportunity to be heard before a court of competent jurisdiction.” ’ ” Ex parte R.W., 41 So.3d 800, 803 (Ala.Civ. App.2009) (quoting Parker v. Parker, 10 So.3d 567, 569 (Ala.Civ.App.2008), quoting in turn Danford v. Dupree, 272 Ala. 517, 520, 132 So.2d 734, 735-36 (1961)). Rule 13(A)(1), Ala. R. Juv. P., specifically provides that, in dependency proceedings, a child’s parents must be served with a summons and a copy of the petition. Further, pursuant to § 12-15-310(b), Ala.Code 1975, a part of the Alabama Juvenile Justice Act (“the AJJA”), § 12-15-101 et seq., Ala.Code 1975, “the juvenile court may find a child dependent only if clear and convincing evidence presented in an adjudicatory hearing establishes the dependency of the child.” Montgomery Cnty. Dep’t of Human Res. v. McDermott, 74 So.3d 455, 458 (Ala.Civ.App.2011). “[T]he AJJA does not authorize a juvenile court to declare a child dependent ex mero motu without an evidentiary hearing held in accordance with due process.” Id.

“ ‘ “A judgment is void only if the court which rendered it [1] lacked jurisdiction of the subject matter, or [2] of the parties, or [3] if it acted in a manner inconsistent with due process.” ’ Neal v. Neal, 856 So.2d 766, 781 (Ala.2002) (quoting Seventh Wonder v. Southbound Records, Inc., 364 So.2d 1173, 1174 (Ala. 1978)). See also Smith v. Clark, 468 So.2d 138, 141 (Ala.1985); Cassioppi v. Damico, 536 So.2d 938, 940 (Ala.1988); Pollard v. Etowah County Comm’n, 539 So.2d 225, 228 (Ala.1989); Satterfield v. Winston Indus., Inc., 553 So.2d 61, 64 (Ala.1989); Fisher v. Amaraneni, 565 So.2d 84, 87 (Ala.1990); Hughes v. Cox, 601 So.2d 465, 467-68 (Ala.1992); Greene v. Connelly, 628 So.2d 346, 351 (Ala.1993); and Rule 60(b)(4), Ala. R. Civ. P.
“‘“[I]t is established by the decisions in this and in Federal jurisdictions that due process of law means notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing.”
‘Frahn v. Greyling Realization Corp., 239 Ala. 580, 583, 195 So. 758, 761 (1940) (emphasis added). The rule that a want of due process, so defined, voids a judgment is not redundant with the rule that a want of personal jurisdiction likewise voids a judgment, for a person already effectively made a party to litigation could, on some critical motion or for some critical proceeding within that litigation, be deprived of the “notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing,” required by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, Frahn, supra. See Winhoven v. United States, 201 F.2d 174 (9th Cir.1952), Bass v. Hoagland, 172 F.2d 205 (5th Cir.1949), Cassioppi [v. Damico, 536 So.2d 938 (Ala. 1988) ], and Seventh Wonder [v. Southbound Records, Inc., 364 So.2d 1173 (Ala.1978) ].’
“Neal, 856 So.2d at 781-82.
“In Frahn v. Greyling Realization Gorp., our supreme court noted:
“ ‘It was observed in Evans v. Evans, 200 Ala. 329, 76 So. 95 [ (1917) ], that such are the requirements of due process, being the fundamental conditions universally prescribed in a system of laws established and all state laws, statutory and judicially declared, regulating procedure, evidence and method of trials, which must be consistent with such requirements of the constitutions. Such rule is stated as follows in 6 R.C.L. § 442, p. 446: “... In fact one of the most famous and perhaps the most often quoted definition of due process of law is that of Daniel Webster in his argument in the Dartmouth College case (Dartmouth College v. Woodward, 4 Wheat. 518, 4 U.S. (L.Ed.) 629 [ (1819) ]), in which he declared that by due process of law was meant ‘a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.’ (Ex parte Wall, 107 U.S. 265, 2 S.Ct. 569, 27 U.S. (L.Ed.) 552 [ (1883) ].) Somewhat similar is the statement that it is a rule as old as the law that no one shall be personally bound until he has had his day in court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity (to be heard) wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and can never be upheld where justice is fairly administered. (Galpin v. Page, 18 Wall. 350, 21 U.S. (L.Ed.) 959 [ (1873) ]; Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 U.S. (L.Ed.) 215 [ (1897) ]; Ferry v. Campbell, 110 Iowa 290, 81 N.W. 604, 51 L.R.A. 92 [ (1900) ]).” (Parenthesis supplied.)’
239 Ala. 580, 583, 195 So. 758, 761 (1940).”

M.H. v. Jer. W,. 51 So.3d 334, 337-38 (Ala.Civ.App.2010).

In the present case, the juvenile court’s judgment indicates that the mother was neither served with a summons and a copy of the petition nor given an opportunity to be heard. Further, the juvenile court indicated that it had merely reviewed the pleadings and had had “discussions” with the guardian ad litem and the stepmother’s attorney; there is no indication that the juvenile court conducted an adjudicatory hearing at which clear and convincing evidence established the dependency of the child. Because of those deficiencies, we conclude that the juvenile court’s October 27, 2011, judgment was entered in a manner that is inconsistent with due process and, therefore, is void. A void judgment will not support an appeal. Jones v. Sears Roebuck & Co., 342 So.2d 16, 17 (Ala.1977). Accordingly, we dismiss the mother’s appeal, albeit with instructions to the juvenile court to vacate its void judgment.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . The mother also stated that she had been awarded custody of the child by the Cullman Circuit Court. The mother attached a copy of a judgment entered by the Cullman Circuit Court on October 31, 2011, awarding the mother sole custody of the child.

      . The mother’s postjudgment motion was timely filed within the 14-day period for filing such motions provided in Rule 1(B), Ala. R. Juv. P. The mother’s postjudgment motion was deemed denied on November 17, 2011, 14 days after it was filed. See Rule 1(B). Because the mother filed her notice of appeal while her postjudgment motion was still pending, the appeal was held in abeyance until her postjudgment was disposed of, and the appeal became "effective” on that date. See Rule 4(a)(5), Ala. R.App. P.


source: Caselaw Access Project

license: Public Domain

text:
    Ex parte ALABAMA STATE PERSONNEL BOARD. (In re Shelton Maye v. Alabama Department of Youth Services and Alabama State Personnel Board).
    2110166.
    Court of Civil Appeals of Alabama.
    Feb. 24, 2012.

      Alice Ann Byrne and Tara S. Knee, Alabama State Personnel Department, Legal Division, for petitioner.
    Scott Morro of Morro Law Center, LLC, Gardendale, for respondent.
   MOORE, Judge.

The Alabama State Personnel Board (“the Board”) petitions this court for a writ of mandamus directing the Jefferson Circuit Court (“the circuit court”) to dismiss Shelton Maye’s administrative appeal. We grant the petition and issue the writ.

Procedural History

On April 13, 2011, the Board issued an order upholding the decision of the Alabama Department of Youth Services (“DYS”) to terminate Maye’s employment. On May 9, 2011, Maye filed a “Notice of Appeal” in the circuit court stating that he was appealing “the [Board’s] Order issued April 13, 2011,” and that “this is an appeal from the [Board].” Maye named only DYS as a “respondent.” The certificate of service on the notice of appeal reflects that it was served on Paul D. Thomas, the deputy director of the Alabama State Personnel Department, and Michael Meyer, counsel for DYS. The case-action-summary sheet attached to the mandamus petition filed by the Board reflects that the Board was added as a party to the appeal on June 9, 2011. The Board asserts that on July 7, 2011, it filed a motion to dismiss the appeal. On September 9, 2011, Maye filed an “Amended Notice of Appeal and Petition for Judicial Review,” again naming only DYS as a respondent, but certifying service by United States mail of the document on “Alice Ann Byrne, Esq. and Tara S. Knee, Esq., State of Alabama Personnel Department.” The Board asserts that, on October 17, 2011, it filed a second motion to dismiss. On October 18, 2011, the circuit court denied the Board’s July 7, 2011, motion to dismiss, and, on October 28, 2011, the circuit court entered an order denying the Board’s second motion to dismiss. The Board filed its petition for a writ of mandamus with this court on November 9, 2011.

Standard of Review
“ ‘ “ ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (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 Integon Corp., 672 So.2d 497, 499 (Ala.1995)....”
‘Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003).’
“Ex parte Progressive Specialty Ins. Co., 31 So.3d 661, 663 (Ala.2009). A petition for the writ of mandamus is a proper means of seeking review of a trial court’s refusal to dismiss a case for the failure of a party pursuing an administrative appeal to comply with the mandatory procedures for appeal set out in the [Alabama Administrative Procedure Act]. See, e.g., Ex parte Crestwood Hosp. & Nursing Home, Inc., 670 So.2d 45, 48 (Ala.1995) (recognizing that the petitioner was entitled to the requested writ directing the trial court to dismiss the case because the hospital failed to comply with the requirements of the [Alabama Administrative Procedure Act]).”

Ex parte Alabama State Pers. Bd., 86 So.3d 993, 995 (Ala.Civ.App.2011) (granting Board’s petition for writ of mandamus directing trial court to dismiss administrative appeal filed by Andrew Sutley based on Sutle/s failure to adhere to appellate-procedure requirements of the Alabama Administrative Procedure Act); see also Ex parte Sutley, 86 So.3d 997 (Ala.2011) (denying Sutley’s petition for writ of mandamus seeking to overturn this court’s order in Ex parte Alabama State Personnel Board, supra).

Discussion

In its mandamus petition, the Board argues that the circuit court erred in denying its motions to dismiss because, it says, Maye failed to adhere to the appellate-procedure requirements of the Alabama Administrative Procedure Act (“the AAPA”), § 41-22-1 et seq., Ala.Code 1975. Specifically, the Board asserts that Maye failed to properly file his notice of appeal pursuant to § 41-22-20(b) & (d), Ala.Code 1975, and failed to properly ' name the Board as a respondent pursuant to § 41-22-20(h), Ala.Code 1975, and, thus, did not properly invoke the appellate jurisdiction of the circuit court.

We initially note that the Board has failed to attach to its mandamus petition the two motions to dismiss it contends the circuit court erred in denying. The Alabama Rules of Appellate Procedure require the attachment of “parts of the record that would be essential to an understanding of the matters set forth in the petition” for a writ of mandamus. Rule 21(a)(1)(E), Ala. R.App. P. However, it is clear from Maye’s answer and the briefs filed with this court that the Board moved to dismiss the appeal on the same ground it is now asserting in its petition for a writ of mandamus. See Ex parte Trawick, 959 So.2d 51, 54-55 (Ala.2006) (holding that omission of motion at issue on petition for a writ of mandamus was not fatal to petitioner’s claim in similar circumstances). Moreover, we note that the issue here involves the subject-matter jurisdiction of the circuit court, see Ex parte Alabama State Pers. Bd., supra, an issue that can be raised at any stage of the proceedings. See, e.g., C.J.L. v. M.W.B., 868 So.2d 451, 453 (Ala.Civ.App.2003) (“[A] court’s lack of subject-matter jurisdiction may be raised at any time by any party and may even be raised by a court ex mero motu.”). Therefore, we will proceed with our analysis.

Section 41-22-20(b), Ala.Code 1975, provides that an appeal from a state-agency proceeding is to be instituted “by filing of notice of appeal or review ... with the agency,” meaning the agency that made the final decision aggrieving the appellant, Ex parte Sutley, 86 So.3d at 999, which, in this case, would be the Board. Id. Pursuant to § 41-22-20(d), the notice of appeal must be filed with the agency within 30 days after the aggrieved party receives notice or other service of the decision of the agency from which the appeal lies. See Martin v. State Dep’t of Mental Health & Mental Retardation, 814 So.2d 290, 292-93 (Ala.Civ.App.2001). Thus, in this case, Maye had 30 days from his receipt of the notice of the final decision of the Board rendered on April 13, 2011, to file a notice of appeal with the Board. The Board maintains, and Maye does not contest, that Maye did not file a notice of appeal with the Board within 30 days of his receipt of the Board’s April 13, 2011, final decision. Rather, the record reflects that Maye filed a “Notice of Appeal” directly in the circuit court on May 9, 2011.

In Brunson v. Alabama State Board of Medical Examiners, 69 So.3d 913 (Ala.Civ. App.2011), this court dismissed an appeal from a physician whose certificate to issue controlled substances had been revoked by the Alabama Board of Medical Examiners. Pursuant to § 20-2-53(b), Ala.Code 1975, appeals from such orders are governed by § 41-22-20. The record indicated, among other things, that the physician had failed to file a notice of appeal with the Alabama Board of Medical Examiners within 30 days of his receipt of that board’s order as required by § 41-22-20(d). 69 So.3d at 915. This court held that the failure of the physician to strictly comply with the appellate procedure set out in § 41-22-20(d) deprived this court of jurisdiction to hear the appeal.

In Brunson, the physician also failed to file a timely petition for review with this court, the second step in the appellate process under § 41-22-20(d). See Martin, supra. This court found that omission to be “perhaps most salientf ],” 69 So.3d at 915, but the court did not intend to suggest that the failure to file the initial notice of appeal with the agency would not, by itself, be considered a jurisdictional defect. Indeed, with the exception of the filing of a cost bond, see State Dep’t of Human Res. v. Funk, 651 So.2d 12, 15 (Ala.Civ.App.1994), this court and our supreme court have repeatedly held that any failure to strictly comply with the appellate procedure set out in the AAPA deprives a circuit court of jurisdiction to hear the appeal. See, e.g., Ex parte Sutley, supra; Ex parte Worley, 46 So.3d 916 (Ala.2009) (plurality opinion); Ex parte Crestwood Hosp. & Nursing Home, Inc., 670 So.2d 45, 48 (Ala.1995); Krawczyk v. State Dep’t of Pub. Safety, 7 So.3d 1035 (Ala.Civ.App. 2008); Eitzen v. Medical Licensure Comm’n of Alabama, 709 So.2d 1239, 1240 (Ala.Civ.App.1998); and State Dep’t of Human Res. v. Funk, supra. Finding no good reason to treat the initial filing requirement any differently, we hold that, under § 41-22-20(d), a circuit court can acquire appellate jurisdiction over a final state-agency decision only if the appellant initially filed a notice of appeal with the agency within 30 days of the appellant’s receipt of the agency’s final decision.

Section 41-22-20(d) provides that

“[fjailure to file such petition within the time stated shall operate as a waiver of the right of such person to review under this chapter, except that for good cause shown, the judge of the reviewing court may extend the time for filing, not to exceed an additional 30 days, or, within four months after the issuance of the agency order, issue an order permitting a review of the agency decision under this chapter notwithstanding such waiver.”

It is unclear whether the extensions provided above relate to the initial period for filing the notice of appeal with the agency or to the period for filing a petition for judicial review with the circuit court. We need not resolve that question, however, because Maye does not make any argument that he requested an extension of time to file his notice of appeal with the Board or that he made a showing of good cause that would have allowed the circuit court to grant such a request. This case therefore falls within the general waiver rule, and we conclude that the circuit court did not acquire jurisdiction to review the final decision of the Board.

Because we decide the issue on the foregoing grounds, we do not address the Board’s other contentions. The petition for a writ of mandamus is granted. The circuit court is directed to vacate its orders denying the Board’s motions to dismiss and to enter a new order dismissing the case.

PETITION GRANTED; WRIT ISSUED.

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

      . The Board is an administrative body of the Alabama State Personnel Department. See §§ 36-26-4 and 36-26-6, Ala.Code 1975.

      . The circuit court did not specify in its October 28, 2011, order which motion to dismiss it was denying. Because it had already denied the July 7, 2011, motion, presumably the circuit court was denying the second motion to dismiss.


author: THOMAS, Judge.

text:
    Willard Singleton SIMS v. ESTATE OF Edwina A. WEST.
    2110150.
    Court of Civil Appeals of Alabama.
    Feb. 24, 2012.

      Augustine Meaher III, Mobile; and James E. Robertson, Jr., Mobile, for appellant.
    Submitted on appellant’s brief only.
   THOMAS, Judge.

Edwina A. West died in April 2005. In May 2008, Frank Kruse, the general administrator of Mobile County, filed a petition requesting that letters of administration be granted to him. On June 24, 2008, the Mobile Probate Court granted letters of administration to Kruse.

On January 29, 2009, Kathryn Edwards, who claimed to be an heir of West, filed a petition for letters testamentary, claiming that West had had a will and that Edwards was named in West’s will as a successor executrix. In March 2009, Edwards filed a petition to disqualify the executrix named in West’s will, Joanne Edwards, because Joanne was suffering from advanced dementia. Willard Sims, another heir of West’s, opposed Edwards’s petition for letters testamentary.

In April 2009, Sims filed an offer to purchase the real property owned by West’s estate for $3,000 plus the cancellation of her $112,615.67 claim against the estate. Sims had asserted a claim against the estate for improvements she had made to the real property and for services and care rendered to West before her death.

In May 2009 and in June 2009, Kruse petitioned the probate court for permission to sell the real property of the estate to Sims. On August 3, 2009, Edwards objected to allowing Sims’s claim against the estate and to the proposed sale of the real property to Sims. After a trial held on January 27 and March 16, 2010, the probate court entered an order on March 24, 2010, that disallowed Sims’s claim against the estate. On April 14, 2010, Sims filed a motion for a new trial with the probate court.

Sims filed in the Mobile Circuit Court a petition seeking removal of the administration of the estate from the probate court on that same date, April 14, 2010. Also on April 14, 2010, Sims filed in the circuit court the same motion for a new trial that she had filed in the probate court. The circuit court entered an order on June 9, 2010, removing the administration of the estate from the probate court. The circuit court purported to deny Sims’s motion for a new trial on June 7, 2011.

On July 5, 2011, Sims filed what she styled a “motion for reconsideration” with the circuit court. In that motion, Sims argued that her claim should not have been disallowed for various reasons, including that some portion of the claim had been for funeral expenses and that Edwards would be unjustly enriched if the claim were not allowed. Sims also filed a brief in support of her motion and an affidavit of another heir regarding the alleged agreement between Sims and West regarding Sims’s care of West during West’s lifetime. The circuit court denied Sims’s “motion for reconsideration” on September 8, 2011. On September 28, 2011, Sims filed her notice of appeal to the Alabama Supreme Court from the circuit court’s order denying her motion for a new trial and her “motion for reconsideration.” This case was transferred to this court by the supreme court, pursuant to Ala. Code 1975, § 12-2-7(6).

Although no party questions our appellate jurisdiction in the present appeal, we may take notice of the lack of jurisdiction ex mero motu. See Keeton v. Keeton, 959 So.2d 114, 115 (Ala.Civ.App. 2006); Singleton v. Graham, 716 So.2d 224, 225 (Ala.Civ.App.1998) (discussing the general rule that this court notices lack of jurisdiction ex mero motu and citing cases noting that rule). The question of jurisdiction in the present case is complicated by the fact that the administration of the estate was removed to the circuit court during the pendency of Sims’s motion for a new trial seeking reconsideration of the probate court’s judgment disallowing her claim against the estate. Nonetheless, as we will explain in further detail below, Sims’s appeal was untimely filed and is due to be dismissed.

A probate court’s judgment allowing or disallowing a claim against an estate is a final judgment, Willingham v. Starnes, 247 Ala. 30, 32, 22 So.2d 424, 426 (1945), and, by statute, an appeal from such a judgment is to be taken to the circuit court within 30 days. Ala.Code 1975, § 43-2-354. Sims, however, did not appeal the probate court’s judgment disallowing her claim to the circuit court. Instead, upon Sims’s motion, the circuit court removed the administration of the estate from the probate court during the pen-dency of Sims’s postjudgment motion directed toward the probate court’s judgment disallowing Sims’s claim against the estate.

Our supreme court has held that, “[w]hen the administration of an estate is removed from the probate court to the circuit court, the circuit court typically takes the proceeding where the probate court left off.” Ex parte Farley, 981 So.2d 392, 396 (Ala.2007); see also Estate of Autry v. McDonald, 332 So.2d 377, 379 (Ala. 1976); Ex parte Stephens, 233 Ala. 167, 169, 170 So. 771, 773 (1936) (“When the circuit court, in the exercise of its unquestioned jurisdiction, reached out and brought before it for administration the estate , it took over that estate, and the proceedings had therein, just where they stood when the same were taken over. The order of removal did not serve to set aside or to annul what had been properly done theretofore in the probate court, but rather to ‘pick up the proceedings’ where the probate court had left off.... ”). In addition, “[w]hen the administration of the estate is removed, all aspects of the administration must be removed.” Ex parte Clayton, 514 So.2d 1013, 1017 (Ala.1987). Notably, however, removal of the administration of an estate does not “deem[ ] [previous orders of the probate court] to be vitiated and voided.” White v. Hilbish, 282 Ala. 498, 502, 213 So.2d 230, 234 (1968). Once a probate court has “reached a final judgment prior to removal of the administration of the estate[,] ... it [is] unnecessary and improper to retry the claim against the estate.” Ex parte Clayton, 514 So.2d at 1017.

Thus, when the administration of West’s estate was removed to the circuit court, the circuit court “ ‘pickfed] up the proceedings’ where the probate court had left off,” Ex parte Stephens, 233 Ala. at 169, 170 So. at 773, and the circuit court was permitted to rule on Sims’s pending motion for a new trial directed toward the probate court’s judgment disallowing Sims’s claim against the estate. Although the circuit court did purport to rule on that motion, it did so one year after the removal of the administration of West’s estate from the probate court. Sims’s motion for a new trial had been pending for 56 days on June 9, 2010, the date the administration of the estate was removed to the circuit court; thus, pursuant to Rule 59.1, Ala. R. Civ. P., Sims’s motion for a new trial was deemed denied by operation of law on July 13, 2010. To be timely, Sims’s notice of appeal had to have been filed by August 24, 2010. Sims’s notice of appeal was filed on September 28, 2011, over one year too late.

Even if we were to construe Sims’s motion as a Rule 60(b), Ala. R. Civ. P., motion to set aside the probate court’s order disallowing her claim against the estate, which we do not because Sims’s motion neither relied on Rule 60(b) nor recited any grounds under Rule 60(b), see Cornelius v. Green, 477 So.2d 1363, 1364-65 (Ala.1985), and Morrison v. Phillips, 992 So.2d 743, 745 (Ala.Civ.App.2008), such a construction would not save Sims’s notice of appeal from being considered untimely. Although a Rule 60(b) motion is not subject to the strictures of Rule 59.1, Sims would have been required to appeal the circuit court’s June 7, 2011, denial of that motion within 42 days, or by July 19, 2011. Sims’s “motion for reconsideration” of the circuit court’s June 7, 2011, ruling on her original motion would not have served to toll the time for taking an appeal. See Ex parte Keith, 771 So.2d 1018, 1022 (Ala.1998) (“After a trial court has denied a post-judgment motion pursuant to Rule 60(b), that court does not have jurisdiction to entertain a successive postjudgment motion to ‘reconsider’ or otherwise review its order denying the Rule 60(b) motion, and such a successive postjudgment motion does not suspend the running of the time for filing a notice of appeal.”). Thus, even if Sims’s motion were construed as a Rule 60(b) motion, Sims’s appeal, which was not filed until September 28, 2011, would still be untimely.

Because Sims’s appeal was not timely filed, we must dismiss her appeal. Rule 2(a)(1), Ala. R.App. P.

APPEAL DISMISSED.

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

      . Pursuant to Ala.Code 1975, § 12-13-12, the Rules of Civil Procedure govern actions in the probate court, unless a different procedure is provided by a statute. Rule 59 and Rule 59.1, Ala. R. Civ. P., apply in probate-court proceedings. Morrison v. Phillips, 992 So.2d 743, 745 (Ala.Civ.App.2008).

      . Even if we were to conclude that the removal of the administration of the estate to the circuit court started anew the 90-day period to rule on Sims’s pending motion, which we do not, that motion would have been deemed denied by operation of law, at the latest, on September 7, 2010.

      . Pursuant to Ala.Code 1975, § 43-2-354, an appeal from a circuit court’s judgment allowing or disallowing a claim against an estate must be taken to the appropriate appellate court within 42 days.


author: PER CURIAM.

text:
    WELLS FARGO BANK, N.A., and Teresa Grier v. John Robert CHAPMAN, Jr., individually and as the administrator of the estate of Margaret McCall Chapman, deceased.
    2101200.
    Court of Civil Appeals of Alabama.
    Feb. 24, 2012.

      Victor Hayslip and William J. Long of Burr & Forman LLP, Birmingham, for appellants.
    Davis B. Whittelsey and Jonathan K. Corley of Whittelsey, Whittelsey & Poole, P.C., Opelika, for appellee.
   PER CURIAM.

Wells Fargo Bank, N.A. (“Wells Fargo”), and Teresa Grier appeal from the judgment of the Tallapoosa Circuit Court denying their motion to compel John Robert Chapman, Jr. (“Chapman”), individually and as administrator of the estate of Margaret McCall Chapman (“the estate”), to arbitrate the claims brought against Wells Fargo and Grier arising out of the “cashing in” of a certifícate of deposit (“CD”) on April 2, 2009, and the death of Margaret McCall Chapman (“Maggie”) on April 2 or 3, 2009.

In May 2003, Maggie, who was then approximately 15 years old, opened a checking account (“the account”) at what was then SouthTrust Bank (“SouthTrust”). The account was a “multiple-party with survivorship” account, with Chapman, Maggie’s father, designated as the other party to, and other authorized signer on, the account. Both Maggie and Chapman signed the signature card, with Maggie also signing an Internal Revenue Service (“IRS”) certification on the signature card. The signature card contained, in pertinent part, the following deposit agreement:

“I/We hereby authorize each person whose name appears above to transact business with this account in writing, by telephone, in person, by telegram, by telex, and by means of any automated teller machine, point of sale terminal, or other electronic device. I/We acknowledge receipt of the Bank’s Rules and Regulations Governing Deposit Accounts and its Schedule of Services and Service Charges, and I/we acknowledge that we received a copy of the Bank’s Schedule of Funds Availability before signing this agreement. I/We agree to be bound by such Regulations and Schedule and all amendments made to either of them from time to time upon notice to any one of the persons signing above, each of whom is hereby designated as agent for the others in connection with all matters concerning this account.”

The arbitration agreement contained in the SouthTrust Rules and Regulations Governing Deposit Accounts (“account regulations”) in effect at the time Maggie and Chapman opened the account read, in part:

“34. ARBITRATION OF DISPUTES. BY OPENING OR MAINTAINING YOUR ACCOUNT, YOU AND WE AGREE THAT ANY CONTROVERSY BETWEEN YOU AND US, OR BETWEEN YOU AND ANY OF OUR OFFICERS, EMPLOYEES, AGENTS, OR AFFILIATED ENTITIES, THAT ARISES OUT OF OR IS RELATED TO YOUR ACCOUNT, OR ANY PRODUCT OR SERVICES RELATED TO YOUR ACCOUNT, OR ANY ADVERTISEMENT, INDUCEMENT, DISCLOSURE OR AGREEMENT RELATED TO YOUR ACCOUNT OR ANY SUCH PRODUCT OR SERVICES, OR THAT QUESTIONS THE ENFORCEABILITY OF THIS AGREEMENT TO ARBITRATE, OR ANY RELATIONSHIP THAT RESULTS FROM ANY OF THE FOREGOING, WHETHER THE CONTROVERSY IS NOW EXISTING OR ARISES IN THE FUTURE AND WHETHER BASED ON CONTRACT, IN TORT, OR ON ANY OTHER LEGAL THEORY, INCLUDING CLAIMS OF FRAUD, SUPPRESSION, MISREPRESENTATION AND FRAUD IN THE INDUCEMENT (INDIVIDUALLY AND COLLECTIVELY, ANY ‘CLAIM’), WILL BE SETTLED BY BINDING ARBITRATION UNDER THE FEDERAL ARBITRATION ACT (‘FAA’), 9 U.S.C. SECTION 1ET SEQ....
“The arbitration will be administered by the American Arbitration Association (‘AAA’) under its Arbitration Rules for the Resolution of Consumer-Related Disputes....
“.... Any question regarding whether a particular dispute is subject to arbitration, including claims of unconscionability, will be decided by the arbitrator. ...”

Over the following years, changes were made to the account regulations governing the account and SouthTrust Bank merged with Wachovia Bank (“Wachovia”), which instituted its own regulations regarding the account. All the SouthTrust and Wa-chovia account regulations contained arbitration clauses, although they were not identical. Maggie continued to utilize the account until the date of her death on April 2 or 3, 2009.

Upon Maggie’s death, Chapman became the owner of the account by virtue of the survivorship provisions of the account. At some point after Maggie’s death, Wachovia merged with Wells Fargo. As of June 2011, the account remained open.

According to the complaint, Chapman held a CD in his name as “custodian” for Maggie with Wachovia at a branch in Alexander City. On April 2, 2009, Chapman went to the Wachovia branch in Alexander City between 10:30 a.m. and 11:15 a.m. During that visit, Chapman spoke with Grier, whom he informed that the purpose of his visit was to be certain that Maggie could not access or receive the funds held in the CD. Grier represented to Chapman that because he was the custodian of the CD, Maggie could not access the funds held in the CD without his signature. Chapman advised Grier or other agents of Wachovia that “payment of the CD funds [to Maggie] would result in Maggie being placed in imminent danger of suffering bodily injury and/or death.” Chapman then requested that Maggie’s name be removed from the CD entirely, so as to prevent her access to the funds; Grier represented that Maggie’s name had been removed from the CD and that no signature was necessary to effect the removal of Maggie’s name from the CD. However, despite those assurances, at approximately 1:58 p.m. on that same day, Maggie, who was then 21 years old, and another person visited the Wachovia branch in Auburn, Maggie redeemed the CD, and the bank paid her $11,224.17 in cash.

After Maggie received the money, she and others used some of the funds to purchase illegal narcotic drugs, which they consumed together. The remaining funds were taken to Birmingham to be used by others to purchase a vehicle, while Maggie remained in Auburn. Maggie died from a drug overdose on April 2 or 3, 2009.

Chapman, individually and as the administrator of Maggie’s estate, sued Wells Fargo and Grier, among others, alleging various theories of recovery. Against Wells Fargo, the complaint asserted claims of wrongful death, breach of contract, fraudulent misrepresentation, fraudulent suppression, and negligence/wantonness. Against Grier, the complaint asserted the following claims: fraudulent misrepresentation, fraudulent suppression, and negligence/wantonness.

Wells Fargo and Grier moved to compel arbitration of the claims against them. They produced copies of several account regulations that had governed the account at SouthTrust, Wachovia, and Wells Fargo between 2003 and 2010. Each of those account regulations contains an arbitration clause. Wells Fargo also presented the affidavit testimony of Timothy O. Merck, a vice president of Wells Fargo. In his two affidavits, Merck testified that Wells Fargo is a National Banking Association, that “it is regulated by the Federal Reserve Board,” that “its deposits are insured by the Federal Deposit Insurance Corporation,” that “it has depositors throughout the United States,” that “its accounts are not segregated by state,” and that “the pool of money used to pay account holders is derived from a pool of funds that regularly flows across state lines.” Merck further stated that Wells Fargo was the legal successor to both SouthTrust and Wacho-via, which had succeeded SouthTrust.

Chapman, on his own behalf and on behalf of the estate, filed a response in opposition to Wells Fargo and Grier’s motion in which he argued that Wells Fargo and Grier had not offered evidence of a contract calling for arbitration, that no agreement governing the CD at issue had been offered as evidence, and that Wells Fargo and Grier had not provided evidence indicating that Maggie or Chapman had ever received notice of the mergers of the respective banks or of changes to the account regulations governing the account. Chapman also argued that Grier, as an employee of Wells Fargo, was not entitled to rely on any arbitration agreement that might exist. Chapman did not provide the court any evidence in support of his opposition to the motion to compel arbitration.

The trial court denied Wells Fargo and Grier’s motion to compel arbitration. Wells Fargo and Grier appeal, arguing that they met their prima facie burden of proving the existence of a contract calling for arbitration and proving that the contract involved a transaction affecting interstate commerce and that Chapman and the estate failed to prove any applicable defenses to the arbitration agreement. We affirm the judgment in part, reverse it in part, and remand the cause with instructions.

“ ‘[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.’ Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999). Furthermore:
“‘A motion to compel arbitration is analogous to a motion for summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Id. “After a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” ’
“Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (emphasis omitted)).”

Vann v. First Cmty. Credit Corp., 834 So.2d 751, 752-53 (Ala.2002). Because motions to compel arbitration are analogous to summary-judgment motions and because our review is de novo, we will consider the arguments made by Chapman regarding whether Wells Fargo and Grier presented evidence of the existence of a contract requiring arbitration and whether Chapman presented sufficient evidence of defenses to the validity of any such contract to determine whether the trial court erred in denying Wells Fargo and Grier’s motion to compel arbitration.

Chapman contends that he did not sign the original SouthTrust signature card and that he is therefore not bound by the arbitration agreement in the original SouthTrust account regulations. However, our examination of the document reveals that he and Maggie signed in the signature section and that Maggie signed the IRS tax certification, because her Social Security number was the one used to establish the account. Thus, we reject any contention by Chapman that he is not bound by the arbitration agreement in the original SouthTrust account regulations.

Chapman next argues that Wells Fargo and Grier failed to prove that Maggie and Chapman were provided with the SouthTrust account regulations and, therefore, that the trial court properly denied Wells Fargo and Grier’s motion to compel arbitration. However, the SouthTrust signature card that both Maggie and Chapman signed stated that they “acknowledged receipt of the Bank’s Rules and Regulations Governing Deposit Accounts” and that they “agree to be bound by such Regulations -” The fact that the account regulations were part of the contract between Maggie and Chapman and South-Trust was therefore evident; Maggie and Chapman acknowledged receipt of those regulations, and Chapman cannot now claim ignorance of them. See Tyler v. Williams, 963 So.2d 76, 78 (Ala.2007) (holding that a customer who signed directly above a provision notifying her that terms and conditions of the agreement were on the reverse side of the document could not argue that she had not assented to those terms). Thus, we find no merit to the argument that Wells Fargo and Grier did not prove that Maggie and Chapman had notice of the arbitration provision in the SouthTrust account regulations.

Chapman also challenges the validity of the arbitration agreement on the ground that Maggie’s minority at the time she opened her SouthTrust account prevented her from being able to contract. Certainly, Maggie’s contract with South-Trust was voidable because she executed it when she was a minor and it was not a contract for “necessaries.” S.B. v. Saint James Sck, 959 So.2d 72, 96 (Ala.2006); see also Williams v. Baptist Health Sys., Inc., 857 So.2d 149,151 (Ala.Civ.App.2003). Maggie was entitled to disaffirm her contract during her minority or within a reasonable time after she reached the age of majority. Standard Motors, Inc. v. Raue, 37 Ala.App. 211, 65 So.2d 829 (1953). However, the record discloses no evidence indicating that Maggie at any time disaf-firmed her contract with SouthTrust or with its successor, Wachovia. The account was in use up until her death and has been maintained since her death by Chapman, who became to the owner of the account via survivorship rights. Maggie’s minority at the time she opened the SouthTrust account did not serve to render the original arbitration agreement invalid.

Chapman appears to further argue in his brief on appeal that Maggie could not have disaffirmed the contract with SouthTrust because its merger with Wachovia occurred before she reached the age of majority; we fail to see the legal importance of this fact. As noted above, Maggie could have disaffirmed her contract with SouthTrust while she was a minor; she did not. She also failed to disaffirm the contract at any time after the merger with Wachovia or after she reached the age of majority. As we ex-plain below, we agree with Chapman that Wells Fargo and Grier have failed to prove that Maggie and Chapman were provided notice of the amendments to the account regulations that were adopted between 2003 and 2010. Because we conclude neither that Chapman nor Maggie was bound by any of the amendments to the account regulations, we will not accept Chapman’s argument that the SouthTrust arbitration agreement was superseded by the Wacho-via account regulations and that, therefore, Maggie could not have been bound by either set of account regulations. A party may not accept only those portions of a contract he or she finds advantageous to his or her position and reject others; if the amendments to the regulations did not apply to Maggie, the SouthTrust arbitration agreement remains in effect. Value Auto Credit, Inc. v. Talley, 727 So.2d 61, 62 (Ala.1999) (quoting J. Calamari & J. Perillo, The Law of Contracts § 8-4, at 310 (3d ed.1987)) (stating that “ ‘[t]he infant is not entitled to enforce portions that are favorable to him and at the same time disaffirm other portions that he finds burdensome’ ”); Delta Constr. Corp. v. Gooden, 714 So.2d 975, 981 (Ala.1998) (stating that a party is not entitled “to arbitrarily pick and choose between provisions in the contract .... ”).

As support for the trial court’s denial of Wells Fargo and Grier’s motion to compel arbitration, Chapman further suggests that Wells Fargo and Grier failed to prove the existence of a valid arbitration agreement because they did not prove that Maggie had received notice of the changes to the account regulations between 2003 and 2009 or of the merger between SouthTrust and Wachovia. Based on that argument, Chapman contends that Maggie could not have been bound by the arbitration agreements contained in the various account regulation changes and in the Wachovia account regulations, to which, Chapman argues, Maggie never assented. Likewise, Chapman appears to argue that he received no notice of the Wells Fargo merger and its account regulations, so he cannot be bound by the arbitration agreement in the account regulations as amended by Wells Fargo. As Wells Fargo and Grier point out, the various account regulations indicate that changes may be made in the account regulations from time to time; as Chapman points out, the exact wording and requirements of each of the account regulations varies, but they all require that some form of notice of the changes be provided to the account holder.

Our supreme court has stated that “[ajmendments to the conditions of unilateral-contract relationships [like those between a bank and its customers] with notice of the changed conditions are not inconsistent with the general law of contracts.” SouthTrust Bank v. Williams, 775 So.2d 184, 190-91 (Ala.2000). Based on that principle, the Williams court concluded that such amendments, when promulgated with the requisite notice, are impliedly assented to by the customer when the customer holds open his or her account after notice of the amendments. Williams, 775 So.2d at 191; see also UBS PaineWebber, Inc. v. Brown, 880 So.2d 411, 414 (Ala.2003) (relying on Williams for the principle that “a person who continues a business relationship after receiving notice of an arbitration provision in the contract governing that relationship implicitly consents to arbitrate any dispute that falls within the scope of the agreement”). Similarly, in Ex parte Rush, 730 So.2d 1175, 1178 (Ala.1999), our supreme court held that a signature to an arbitration agreement is not required if mutual assent to the terms of the contract containing the agreement may be inferred from other conduct of the parties, including, specifically, a party’s having been mailed the contract, having received the contract, having been designated as a party to the contract, and having benefited from or having relied upon other terms of the contract.

However, the record in each of those cases contained evidence indicating that notice of the provision in question had been provided to each party. In Williams, SouthTrust had presented evidence indicating that its customers had been given notice of the amendments to its regulations in January 1997 when SouthTrust “enclos[ed] in each customer’s ‘account statement’ a complete copy of the regulations, as amended.” Williams, 775 So.2d at 187. In Brown, UBS PaineWebber, Inc. (“PaineWebber”), provided a letter that, it averred, it had sent to Brown, informing him that his account would be automatically transferred to PaineWebber due to PaineWebber’s acquisition of J.C. Bradford & Co., L.L.C. Brown, 880 So.2d at 413. PaineWebber presented evidence indicating that it had also enclosed with its letter a disclosure brochure informing Brown that, upon the transfer of his account, that account would be governed by the PaineWebber master account agreement, which, PaineWebber contended, had also been provided to Brown and included an arbitration provision. Id. Likewise, the evidence in Ex parte Rush demonstrated that the Rushes had been mailed and had received the Termite Protection Plan containing the arbitration agreement at issue. Ex parte Rush, 730 So.2d at 1178.

The record in the present case lacks any evidence indicating that notice of the various changes in the account regulations over the years or notice of the mergers between SouthTrust and Wachovia and Wachovia and Wells Fargo were provided to Maggie or to Chapman. The two affidavits in the record from Merck do not include testimony that notice of the amendments to the various account regulations was properly provided to Maggie and Chapman, as required by those account regulations. Thus, we cannot agree that Wells Fargo and Grier proved that Wells Fargo’s arbitration agreement governs this case by virtue of the amendments to the account regulations since 2003. However, Chapman, individually, and in his capacity as administrator of the estate, because, insofar as he is advancing any claims that belonged to Maggie while she was alive, he stands in Maggie’s shoes, see SouthTrust Bank v. Ford, 835 So.2d 990, 993-94 (Ala. 2002), is bound by the original SouthTrust arbitration agreement.

We next consider whether Chapman is required to submit the wrongful-death claim to arbitration under the South-Trust arbitration agreement. Chapman argues that, pursuant to Entrekin v. Internal Medicine Associates of Dothan, P.A., 764 F.Supp.2d 1290, 1294-96 (M.D.Ala. 2011), the arbitration agreement does not apply to the wrongful-death claim because that claim was not Maggie’s claim to assert, and, thus, she could not agree to arbitrate that claim. The Entrelcin court based its decision that an arbitration agreement entered into by a decedent could not be used to compel arbitration of a wrongful-death claim based on his death on its observation that, under Alabama law, a wrongful-death claim is a claim belonging to a decedent’s personal representative, not to the decedent, because it comes into being only after death. Entre-kin, 764 F.Supp.2d at 1295; see also Henderson v. MeadWestvaco Corp., 23 So.3d 625, 629 (Ala.2009) (quoting Ivey v. Wiggins, 276 Ala. 106, 108, 159 So.2d 618, 619 (1964)) (explaining that Ala.Code 1975, § 6-5-410(a), the wrongful-death statute, “ ‘creates a distinct cause of action which comes into being only upon death from wrongful act’ ”), and Ivey v. Wiggins, 276 Ala. at 108, 159 So.2d at 620 (“The chose in action here never did belong to the intestate; the statute creates it only upon his wrongful death.”). However, our supreme court has enforced arbitration agreements in cases involving wrongful-death claims when the personal representatives had themselves been signatories to the arbitration agreements. See Carraway v. Beverly Enters. Alabama, Inc., 978 So.2d 27 (Ala.2007); and Briarcliff Nursing Home, Inc. v. Turcotte, 894 So.2d 661 (Ala.2004).

We assume that Chapman advances this argument because Chapman contends that he did not sign the SouthTrust signature card and that he is therefore not bound by the SouthTrust arbitration agreement. We have concluded that the evidence establishes that Chapman did sign the signature card, however; therefore, we need not determine whether Carraway and Tur-cotte stand for the proposition that a decedent may agree to arbitrate a wrongful-death claim arising from his or her own death. Instead, we may rely on Chapman’s being a signatory to the SouthTrust arbitration agreement to compel him to arbitrate the wrongful-death claim like the personal representatives in Carraway and Turcotte.

Chapman further argues that Wells Fargo and Grier failed to provide an arbitration agreement pertaining specifically to the CD at issue. This argument is essentially one that the dispute regarding the CD is not within the scope of the arbitration agreement. Typically, once the movant has met its burden of proof, “ ‘ “the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” ’ ” Vann, 834 So.2d at 753 (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000), quoting in turn Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995)). In this case, however, the agreement indicated that the “arbitration will be administered by the American Arbitration Association (‘AAA’) under its Arbitration Rules for the Resolution of Consumer-Related Disputes.” In support of their motion to compel arbitration, Wells Fargo and Grier offered evidence indicating that, pursuant to the applicable arbitration rules adopted by the American Arbitration Association (“AAA”), the arbitrator was empowered to “rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.” Wells Fargo and Grier argue that, as a result, the issue of arbitrability is for the arbitrator, rather than the trial court, to resolve.

In CitiFinancial Corporation, L.L.C. v. Peoples, 973 So.2d 332 (Ala.2007), our supreme court addressed an almost identical issue. Borrowers brought an action against certain lenders alleging wrongful foreclosure and seeking to have the foreclosure deed declared void. Id. at 334. The lenders moved to compel arbitration, the trial court denied that motion, and the lenders appealed. Id. Our supreme court noted that language in the arbitration agreement at issue indicated that the arbitration agreement incorporated “the Commercial Rules of the [AAA].” Id. at 339. The supreme court further noted that those “conferr[ed] authority to decide [ar-bitrability] issues on the arbitrator.” Id. Our supreme court held that “an arbitration provision that incorporates rules that provide for the arbitrator to decide issues of arbitrability clearly and unmistakably evidences the parties’ intent to arbitrate the scope of the arbitration provision.” Id. at 340. The supreme court, therefore, concluded that the trial court had erred in denying the lenders’ motion to compel arbitration. Id.

By agreeing to SouthTrust’s account regulations, Maggie and Chapman agreed that the applicable arbitration rules of the AAA would govern any of their disputes with SouthTrust and its successor, Wells Fargo, and, pursuant to those rules, they agreed to submit any disputes as to the arbitrability of a particular claim to the arbitrator for resolution. Thus, that threshold question is not for the trial court to decide but, rather, is an issue for the arbitrator to resolve.

Chapman makes one additional argument regarding the motion to compel insofar as it relates to the claims asserted against Grier. He argues that Grier, as a nonsignatory to the arbitration agreement, is not entitled to enforce the arbitration agreement. We note that the SouthTrust arbitration agreement includes within its scope disputes between account holders and employees. Grier was employed by Wachovia on April 2, 2009, and, based on the allegations of the complaint, she was also employed by Wells Fargo at some point; the record does not reflect whether she was employed by SouthTrust. However, under the terms of the SouthTrust arbitration agreement, which continues in effect in light of the failure of proof regarding whether Maggie and Chapman received notice of the amendments to the account regulations or of the mergers between SouthTrust and Wachovia and Wa-chovia and Wells Fargo, any claims against Grier brought by Chapman, individually or on behalf of the estate, would be arbitrable if she were considered to be the employee of SouthTrust’s successor bank, Wachovia.

In any event, our supreme court has long held that a nonsignatory employee is entitled to rely on the arbitration agreement of his or her employer when the employee is sued for conduct occurring in the line and scope of his or her employment. See Monsanto Co. v. Benton Farm, 813 So.2d 867, 874 (Ala. 2001); Ex parte Gray, 686 So.2d 250, 251 (Ala.1996) (relying on Paine, Webber, Jackson & Curtis, Inc. v. McNeal, 143 Ga.App. 579, 581, 239 S.E.2d 401, 404 (1977)). Chapman appears to argue, without citation to any authority, that Grier was acting outside her capacity as an employee of Wachovia when she spoke with Chapman on April 2, 2009, thus preventing her from enforcing the arbitration agreement. Specifically, Chapman states that “[i]t is difficult to comprehend how making various misrepresentations which eventually led to the death of another could possibly be within the line and scope of one’s employment with a bank.” We disagree with the argument advanced by Chapman that Grier’s conduct was not “within the line and scope of [her] employment.” Grier’s alleged misstatements to Chapman regarding the availability of the CD funds to Maggie and any actions Grier took or did not take to ensure that only Chapman could access the CD funds were clearly in the scope of her employment with Wacho-via and concerned the business of her employer; based on the allegations contained in the complaint, nothing Grier allegedly said or did could be said to have “emanated from wholly personal motives of [Grier] and was committed to gratify wholly personal objectives or desires of [Grier].” Hendley v. Springhill Mem’l Hasp., 575 So.2d 547, 550 (Ala.1990). Although in the complaint Grier is described as having acted “individually and/or in her capacity as agent, servant, and/or employee of Wells Fargo,” no factual allegation or evidence in the record indicates that Grier was involved in anything but furthering Wacho-via’s business when she assisted Chapman on April 2, 2009 See Joe Hudson Collision Ctr. v. Dymond, 40 So.3d 704, 712 (Ala.2009) (reversing a judgment denying a motion to compel arbitration by a supervisor who had allegedly assaulted the plaintiff because the complaint described the supervisor as “acting in the line and scope of his employment”). Thus, we cannot agree with Chapman that Grier is not permitted to enforce the arbitration agreement.

Wells Fargo and Grier have demonstrated that a written arbitration agreement exists, they have provided undisputed evidence demonstrating that banking activities like those Wells Fargo engages in affect interstate commerce, and they have demonstrated that Grier is entitled to enforce the arbitration agreement. Thus, Wells Fargo and Grier met their burden on the motion to compel arbitration. Chapman has failed to demonstrate that the SouthTrust arbitration agreement was invalid. The trial court erred in denying Wells Fargo and Grier’s motion to compel arbitration, and we reverse its judgment and remand the cause for the trial court to enter an order granting the motion to compel arbitration of the claims against Wells Fargo and Grier and to either issue a stay the action against Wells Fargo and Grier pending arbitration or to dismiss the action. See Peoples, 973 So.2d at 341 (“On remand, the trial court shall grant the motion to compel arbitration and either issue a stay of these proceedings pending arbitration or dismiss the case.”); see also Johnson v. Jefferson Cnty. Racing Ass’n, 1 So.3d 960, 969-70 (Ala.2008) (discussing the trial court’s discretion regarding whether to stay or dismiss an action after compelling arbitration).

Wells Fargo and Grier further argue on appeal that the trial court erred by failing to impose the costs of this litigation on Chapman, individually and in his capacity as administrator of the estate. According to Wells Fargo and Grier, the Wells Fargo arbitration agreement requires that a party who fails to submit to arbitration after a lawful demand bears the costs and expenses, including attorney fees, incurred by the party seeking to compel arbitration. However, as we explained above, the operative arbitration agreement is the South-Trust arbitration agreement and not the Wells Fargo arbitration agreement. Thus, we cannot reverse the trial court’s judgment insofar as it refused to order Chapman to bear the costs and expenses associated with the motion to compel arbitration.

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

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

      . On appeal, Chapman does not make any argument that the contracts containing the arbitration agreements do not involve a transaction affecting interstate commerce.

      . As noted above, the various account regulations prescribed different ways of effecting notice, including mailing a copy of the amendments to the account holder or posting the amendments at a bank branch. In light of Wells Fargo and Grier's failure to present evidence indicating that notice of amendments and mergers was provided to Maggie and Chapman, we need not discuss further the various requirements of the various account regulations regarding notice.

      . We note that Chapman argues that he did not sign the SouthTrust account as a personal representative or in a representative capacity. However, although the personal representatives in Carraway and Turcotte signed the arbitration agreements in some form of representative capacity, that particular fact did not appear to form the basis of the decisions to compel those personal representatives to arbitrate; to be certain, neither personal representative was a personal representative before the death of each decedent. Instead, it appears that the supreme court considered the fact that each personal representative was a signatory to the agreement to be the pivotal issue. See Noland Health Servs., Inc. v. Wright, 971 So.2d 681, 687 (Ala.2007) (explaining that the personal representatives-plaintiffs in Turcotte were signatories to the arbitration agreement).

      . If, as Chapman argues, Grier’s actions were not in the scope of her employment with Wachovia, then Wells Fargo would not be responsible for Grier's alleged misrepresentations, because liability of a principal under the theory of respondeat superior is based on the requirement that the act of the employee be committed in the line and scope of his or her employment or that the act be in the furtherance of the employer’s business or that the employer participate in, authorize, or ratify the act. See Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935-36 (Ala.2006).


author: WELCH, Presiding Judge. KELLUM, Judge,

text:
    Courtney James BOYD v. STATE of Alabama.
    CR-10-1868.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 2011.
    Rehearing Denied Feb. 3, 2012.
    Courtney James Boyd, pro se.
    Luther Strange, atty. gen., and P. David Bjurberg, asst. atty. gen., for appellee.
   WELCH, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

JOINER, J., concurs. KELLUM, J., concurs specially, with opinion.

KELLUM, Judge,

concurring specially.

I write specially to note that this action appears to be Courtney James Boyd’s tenth Rule 32, Ala. R.Crim. P., petition challenging his 1999 conviction for first-degree robbery and his resulting sentence of 20 years’ imprisonment. I believe that allowing Boyd 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 Boyd and other similarly situated inmates. See Ex parte Thompson, 38 So.3d 119 (Ala.Crim.App.2009).


author: WINDOM, Presiding Judge.

text:
    STATE of Alabama v. Isaac Andy BAKER.
    CR-10-1831.
    Court of Criminal Appeals of Alabama.
    Feb. 10, 2012.

      Luther Strange, atty. gen., and Laura I. Cuthbert and Madeline H. Lewis, asst, attys. gen., for appellant.
    Daniel C. Lemley, Tuscaloosa; and Paige Oldshue, Tuscaloosa, for appellee.
   WINDOM, Presiding Judge.

The State of Alabama appeals the circuit court’s pretrial order granting Isaac Andy Baker’s motion in limine and excluding out-of-court statements that E.G.J. made to her parents and to a counselor. Specifically, the State argues that the circuit court erroneously concluded that E.G.J.’s out-of-court statements constitute inadmissible hearsay under Rule 801, Ala. R. Evid. According to the State, although E.GJ.’s out-of-court statements are hearsay, the statements are nonetheless admissible pursuant to § 15-25-31, Ala.Code 1975, a part of the Child Sexual Abuse Victim Protection Act, § 15-25-30 et seq., Ala.Code 1975, and Rule 802, Ala. R. Evid. Therefore, the circuit court abused its discretion by ruling that E.GJ.’s statements are inadmissible under Rule 801, Ala. R. Evid. This Court agrees with the State.

Faye Baker, Baker’s wife, operated a child day-care facility in the Bakers’ house in Tuscaloosa County. After retiring from the Tuscaloosa Police Department, Baker helped his wife with the children at the day-care facility. E.G.J., who was born on January 9, 2006, attended Faye Baker’s day-care facility from March 2006 until some time between July 11 and August 15, 2008.

On May 1, 2009, E.G.J. made a statement to her mother indicating that Baker had performed oral sex on her while she was at the day-care facility. That same day, E.G.J. told her father the same thing. Later, on May 3, 2009, E.G.J. made an additional statement to her mother and father that indicated that Baker had performed oral sex on her. E.G.J. made additional statements to her parents on May 17 and May 26, 2009 that incriminated Baker.

In addition to the statements E.G.J. made to her parents, she was interviewed by Janie Plaxco, a forensic evaluator at the Tuscaloosa Children’s Center, on multiple occasions between May 14 and June 2, 2009. During those interviews, E.G.J. again indicated that Baker had engaged in deviate sexual intercourse with her while she was attending Faye Baker’s day-care facility.

On September 24, 2009, a Tuscaloosa County grand jury issued an indictment charging Baker with two counts of first-degree sodomy for acts he allegedly performed on E.G.J. when she was 2½ years old. See § 13A-6-63, Ala.Code 1975. At some point thereafter, the State gave Baker notice of its intent to offer hearsay evidence. (C. 9.) The State’s notice indicated that it intended to admit into evidence E.GJ.’s out-of-court statements to her parents and to Plaxco pursuant to § 15-25-31, Ala.Code 1975, which provides for the admission into evidence of child victims’ hearsay statements in certain circumstances.

Thereafter, on April 14, 2011, Baker filed a motion in limine urging the circuit court to exclude E.G.J.’s out-of-court statements on the following grounds: 1) E.G.J. would not have been a competent witness at the time the statements were given because she was three years old; 2) the admission of the out-of-court statements would violate the Confrontation Clause of the Sixth Amendment to the United States Constitution; and 3) the statements do not meet the criteria for the hearsay exception contained in § 15-25-31, Ala.Code 1975. After Baker filed his motion in limine, this Court issued its opinion in M.L.H. v. State, [Ms. CR-09-0649, July 8, 2011] — So.3d -(Ala.Crim.App.2011). In M.L.H., this Court determined that § 15-25-31, Ala. Code 1975, which provides for the admission, as substantive evidence, of out-of-court statements of victims of sexual offenses who are under the age of 12 at the time of the proceeding, conflicted with Rule 801, Ala. R. Evid, which defines hearsay. Id. at-. This Court then decided that Rule 801, Ala. R. Evid., superseded § 15-25-31, Ala Code 1975, and governed the admission of out-of-court statements because Rule 801 was adopted after § 15-25-31 became effective. Id. at-. This Court held that out-of-court statements that would be admissible as substantive evidence pursuant to § 15-25-31 are nevertheless inadmissible as substantive evidence if those statements fall within the definition of hearsay contained in Rule 801, Ala. R. Evid. Id. at-. In effect, this Court held that Rule 801, Ala. R. Evid., abrogated § 15-25-31 and rendered out-of-court statements that would have been admissible as substantive evidence under § 15-25-31 inadmissible to prove the matter asserted, unless those statements are nonhearsay or fall within a hearsay exception contained in the Rule 803, Ala. R. Evid.

On August 3, 2011, the State filed a motion for a pretrial ruling on Baker’s motion in limine. Thereafter, on August 8, 2011, the State filed a motion to continue. In its motion, the State recognized this Court’s holding in M.L.H. Specifically, the State explained that:

“On July 8, 2011, the Alabama Court of Criminal Appeals released the case of M.L.H. v. State, [Ms. CR-09-0649, July 8, 2011] — So.3d-(Ala.Crim.App. 2011).... In this case, the Court held that the hearsay rules enacted on passage of the Alabama Rules of Evidence (hereinafter, ‘the Rules’), effective January 1, 1996, prohibit the admission of out-of-court statements made by the victim that would normally be admissible as substantive evidence under [§§ 15-25-31 through 39, Ala.Code 1975,] unless the Rules or subsequent legislation create an exception to Ala. R. Evid. Rule 801. Et. Seq.”

(C. 35.)

After acknowledging this Court’s opinion in M.L.H., the State moved the circuit court to continue the proceedings to allow the Alabama Supreme Court an opportunity to review this Court’s decision in M.L.H. Put differently, the State moved the circuit court to continue the proceedings until this Court’s decision in M.L.H. became final. As grounds for its motion, the State asserted this Court’s opinion in M.L.H. dictated that E.G.J.’s out-of-court statements be excluded and that the exclusion of those statements would be fatal to the State’s case. It then asserted:

“The State has a good faith reason to believe that M.L.H., which has been appealed by the State of Alabama Attorney General’s Office, will ultimately be reversed by the Alabama Supreme Court. In short, the State contends that the Alabama Court of Criminal Appeals overlooked the fact that the Rules provide in Ala. R. Evid. Rule 802 that ‘[h]earsay is not admissible except as provided by these rules, or by other rules adopted by the Supreme Court of Alabama or by statute.’ In other words, the exception to the hearsay rule established under the Child Sexual Abuse Victim Protection Act ‘remains viable after the adoption of the Alabama Rules of Evidence.’ Gamble, McElroy’s Ala. Evid. § 260.04 (5th ed.1996). See also, Gamble’s Alabama Rules of Evidence § 802 ‘Practice Pointers,’ fn. 3 (2nd ed.2002).”

(C. 36) (emphasis in original.) According to the State, a continuance would alleviate the necessity for the State to appeal the circuit court’s ruling, which, if M.L.H. is applied, should exclude the E.GJ.’s out-of-court statements.

The circuit court held a hearing on the pending motions. During the hearing, the circuit court denied the State’s motion to continue the proceedings. After the hearing, the circuit court issued an order granting Baker’s motion to exclude E.G.J.’s out-of-court statements on the ground that that result was required under M.L.H. In granting Baker’s motion, the circuit court explained it was not analyzing whether E.G.J.’s statements meet the criteria of admissibility under §§ 15-25-31 through -39, Ala.Code 1975, or whether the admission of the statements would violate the Confrontation Clause of the Constitution of the United States. Instead, the court explained that:

“In light of the opinion of the Alabama Court of Criminal Appeals in M.L.H, v. State, [Ms. CR-09-0649, July 8, 2011] — So.3d-(Ala.Crim.App.2011)..., this Court finds no reason to conduct an analysis under [§§ 15-25-31 through -39, Ala.Code 1975]. According to the M.L.H. decision, because the hearsay rules under the Alabama Rules of Evidence became effective subsequent to [the effective date of §§ 15-25-31 through -39, Ala.Code 1975,] the Ala-banla Rules of Evidence govern the admissibility of the alleged victim’s hearsay statements. Because the proffered statements would not qualify as non-hearsay under the Alabama Rules of Evidence nor would they qualify as an exception to the hearsay rules set out in the Alabama Rules of Evidence, this Court finds that the out-of-court statements made by the alleged victim to her mother, her father, and Ms. Plaxco ... are not admissible at trial as substantive evidence.
“Obviously, were the M.L.H. decision to be reversed, then this Court would be in a position to further analyze the admissibility of these statements under [§§ 15-25-31 through -39, Ala.Code 1975]. At this time, however, this Court specifically makes no conclusions regarding the admissibility of the proffered statements under [§§ 15-25-31 through -39, Ala.Code 1975].”

(C. 39.)

The State timely appealed the circuit court’s ruling. The sole issue before this Court is whether the adoption of Rule 801, Ala. R. Evid., superseded §§ 15-25-31 through -39, and rendered hearsay statements by child victims, otherwise admissible under §§ 15-25-31 through -39, inadmissible, in accordance with this Court’s opinion in M.L.H.

After the State filed its brief in this Court, the Alabama Supreme Court reversed this Court’s judgement in M.L.H. and held that the adoption of the Alabama Rules of Evidence did not supersede or abrogate §§ 15-25-31 through -39. M.L.H. v. State, [Ms. 1101398, Dec. 2, 2011] — So.3d -, - (Ala.2011). Specifically, in — So.3d at-, the Alabama Supreme Court held that there is no conflict between Rule 801, Ala. R. Evid., and §§ 15-25-31, Ala.Code 1975. The Court agreed with this Court’s determination that M.L.H.’s out-of-court statements constituted hearsay as defined in Rule 801, but then explained that Rule 801, Ala. R. Evid., does not govern whether hearsay statements are admissible. Instead, Rule 801 merely defines which out-of-court statements constitute hearsay and declares that certain out-of-court statements are not hearsay. Id. at-. The Court then explained that the admissibility of hearsay is governed by Rule 802, Ala. R. Evid., which “provides: ‘Hearsay is not admissible except as provided by these rules, or by other rules adopted by the Supreme Court of Alabama or by statute.’ ” Id. at-(quoting Rule 802, Ala. R. Evid.). The Court then explained:

“By definition, if a hearsay statement is admissible under an exception to Rule 802, it is admissible as substantive evidence — i.e., ‘to prove the truth of the matter asserted.’ Rule 801(c); see, e.g., Biles v. State, 715 So.2d 878, 887 (Ala. Crim.App.1997) (quoting and relying upon Advisory Committee’s Notes to Rule 803(4), Ala. R. Evid., which state that, under the hearsay exception expressed in Rule 803(4), ‘all statements serving reasonably as the basis of diagnosis or treatment’ are ‘admitted as substantive proof of the matter asserted’), and Gwarjanski v. State, 700 So.2d 357, 359 (Ala. Crim.App.1996) (noting that a logbook that was ‘admissible into evidence under the business records exception to the hearsay rule ... could be considered as substantive evidence’). Section 15-25-31, the section of the Act the Court of Criminal Appeals determined conflicts with Rule 801(d)(1)(A), creates a statutory exception to the hearsay rule. T.P. v. State, 911 So.2d 1117, 1123 (Ala.Crim.App.2004); see also Charles W. Gamble, Gamble’s Alabama Rules of Evidence § 802, Author’s Statement of the Rule n. 3 (2d ed.2002).”

M.L.H., — So.3d at-. The Court ultimately held that out-of-court statements that constitute hearsay under Rule 801, Ala. R. Evid., and that meet all the requirements of §§ 15-25-31 through -39, Ala.Code 1975, fall within an exception to the prohibition of hearsay evidence contained in Rule 802, Ala. R. Evid, and are thus admissible as substantive evidence.

Here, the circuit court, relying on this Court’s opinion in M.L.H., .— So.3d at -, held that Rule 801, Ala. R. Evid., superseded and abrogated §§ 15-25-31 through -39, Ala.Code, and rendered E.G.J.’s hearsay statements inadmissible. That decision conflicts with the Alabama Supreme Court’s decision in M.L.H., — So.3d at-. In accordance with the Alabama Supreme Court’s decision, the circuit court’s judgment excluding E.G.J.’s statements is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

WELCH, KELLUM, BURKE, and JOINER, JJ., concur.

      . The State’s notice is not contained in the record; however, based on Baker’s pleadings and the parties' arguments, the substance of the notice is clear — the State intended to use E.G.J.’s out-of-court statements as substantive evidence at trial.

      . The circuit court did not decide whether E.G.J.’s statements meet the criteria for admissibility pursuant to §§ 15-25-31 through -39, Ala.Code 1975, or whether the admission of the statements would violate the Confrontátion Clause, and the record is insufficient for this Court to make those determinations. Therefore, these issues are better left for the circuit court to decide on remand.


author: BURKE, Judge.

text:
    Sherman Lee CAMPBELL v. STATE of Alabama.
    CR-10-0932.
    Court of Criminal Appeals of Alabama.
    Feb. 10, 2012.

      Robin Carter Clem, Huntsville, for appellant.
    Luther Strange, atty. gen., and John J. Davis, asst. atty. gen., for appellee.
   BURKE, Judge.

Sherman Lee Campbell was convicted of arson in the first degree, a violation of § 13A-7-41, Ala.Code 1975, and of domestic violence in the third degree, a violation of § 13A-6-132, Ala.Code 1975. Campbell was sentenced to 25 years’ imprisonment in the State penitentiary for his conviction of first-degree arson and was sentenced to a one year in the Madison County jail for his conviction of third-degree domestic violence, the sentences to run concurrently. As to his arson conviction, he was ordered to pay a fine of $3,000 and, as to his domestic-violence conviction, he was fined $1,000. For each conviction, he was ordered to pay a fine of $100 to the Alabama Victims’ Compensation Fund, restitution, as well as court costs and attorney fees. This appeal follows.

At trial, the State presented evidence which tended to show the following:

Christina Hamlett testified that, at the time of the incident, she had been dating Campbell for over five and a half years and their relationship had been volatile, often resulting in the two striking each other. On May 7, 2009, Campbell picked Hamlett up from work and they went to Bay Boys, a “shot house” where people drink and play games and gamble. (R. 110-11.) They were there for approximately an hour and argued about a girl Campbell had been driving around in Hamlett’s automobile. The fighting continued later that evening, after they arrived at the house that they shared. According to Hamlett, Campbell broke a television and, as Hamlett began packing her belongings to leave, he went outside and punctured the tires on the automobile. She then ran for his truck, and he hit her in the eye. She ran inside and sat on her bed to wipe the blood from her injury; Campbell followed her and lit a napkin on fire and threw it on the bed. Hamlett used the bedspread to put out the fire and then ran away. She testified that she never smelled gasoline, but she later found the can in the house and testified that gasoline had been poured over the furniture.

Officer Jeremy Phipps, a police officer with the Huntsville Police Department, testified that, while he was on patrol on May 7, 2009, he saw a woman who was later identified herself as Christina Ham-lett running toward his patrol car. He testified that Hamlett’s face was swollen and bleeding, and that she was “acting crazy.” (R. 84.) Hamlett told Phipps that Campbell had hit her and that he was going to try and burn down her house. Phipps went to Hamlett’s residence. When Phipps arrived at the home, he could smell a strong smell of gasoline coming from the house. According to Ham-lett’s son, who was present at her home when Phipps arrived, Campbell had already left the residence. Phipps completed a report of domestic violence at that time.

On May 8, 2009, Norma Hoblit, an investigator for the Huntsville Police Department, was assigned the case and spoke with Hamlett. Hamlett informed Hoblit that Campbell had injured her and had tried to burn down her house. Hoblit then contacted Sgt. Kevin O’Connell, an arson investigator for the Huntsville Police Department at the time, and they went to Hamlett’s residence. Hoblit could still smell the strong odor of gasoline, and she observed burnt paper and damage to a blanket on the bed in the bedroom. Ham-lett’s son showed the officers where the gasoline can was located. He also showed them punctured tires on Hamlett’s car and a knife located on the roof and two knives in the yard. The investigators collected burnt tissue paper as evidence. Hoblit indicated that the couch was still damp and that she could see the stains from gasoline on the couch.

Sgt. O’Connell testified that there was a strong odor of gasoline inside the house and that the sofa was saturated with a liquid that smelled like gasoline. Sgt. O’Connell also observed toilet paper or paper towels that were burned, as well as damage to the mattress and a blue blanket located on the bed. Based on the fact that a victim was inside the house at the time of the incident and that there was fire damage to the mattress and blanket, which indicated an open-flame source for the fire, Sgt. O’Connell decided that Campbell should be charged with arson. Sgt. O’Connell thought that the damage alone was sufficient to bring the charge because the fire was “maintained” and was only extinguished when the victim smothered it. (R. 151.)

At the end of the prosecution’s case, Campbell made a motion to dismiss on the grounds that all elements of the crime of arson in the first degree had not been satisfied. Campbell’s motion was denied. Campbell then presented evidence that showed the following:

Campbell testified that Hamlett had been intoxicated when they left Bay Boys and went to her house. Campbell claims that he never hit Hamlett but that she jumped on him, causing them to bump heads. Campbell claims that when Ham-lett jumped on him, he had a chain saw in one hand and a gasoline can in the other, which was spilled when Hamlett jumped on him. Campbell denied pouring gasoline on the couch and lighting a fire. Campbell claims that there was no damage to the house when he left the evening of the incident.

On appeal, Campbell claims that the State failed to present evidence sufficient to sustain a conviction of arson in the first degree. Specifically, Campbell claims that in order to uphold a conviction for arson, there must be some destruction or consumption of material to the building. Thus, Campbell argues, because there was no evidence of fire damage to the building, the court erred in denying his motion to dismiss. Campbell also included in his notice of appeal that he was appealing his conviction for third-degree domestic violence case; however, he did not raise any argument concerning that conviction in his brief on appeal. Thus, the trial court’s judgment of conviction for that offense is due to be affirmed. Pursuant to § 13A-7-41, Ala.Code 1975, arson in the first degree is defined as follows:

“(a) A person commits the crime of arson in the first degree if he intentionally damages a building by starting or maintaining a fire or causing an explosion, and when:
“(1) Another person is present in such building at the time, and “(2) The actor knows that fact, or the circumstances are such as to render the presence of a person therein a reasonable possibility.”

The State admits that, as a matter of law, it failed to prove all the elements of first-degree arson because there was no evidence of any actual damage to the building involved. Davidson v. State, 792 So.2d 1153, 1156 (Ala.Crim.App.1998) (“In order to establish the corpus delicti of arson, the State must prove: (1) damage to a building, (2) intentionally and willfully caused by a responsible person, (3) by starting or maintaining a fire or causing an explosion, not as the result of accidental or natural causes. Bolden v. State, 568 So.2d 841 (Ala.Crim.App.1989).”). Cf. Bateman v. State, 408 So.2d 194, 197 (Ala.Crim.App. 1981) (holding that a conviction for attempted arson was proper as a lesser-included offense of first-degree arson conviction where the jury was so charged because no actual damage was done to the building). However, the State argues that, despite the trial court’s failure to charge the jury in this case as to the lesser-included offense of attempted arson, the State’s evidence sufficiently proved all the elements of attempted arson in the first degree. Therefore, the State argues that this Court should render a judgment of conviction for the lesser-included offense of attempted arson.

In urging this Court to render a conviction for the lesser included offense of attempted arson, the State relies on a decision by the United States Court of Appeals for the Fifth Circuit in United States v. Hunt, 129 F.3d 739, 745-46 (5th Cir.1997), which held that modification of a judgment was allowed even when the trial court did not instruct the jury on the lesser-included offense if the modification would not result in undue prejudice to the defendant. The State also bases its argument on a Connecticut case, State v. Sanseverino, 291 Conn. 574, 969 A.2d 710, 720 (2009), in which the court noted that some courts have held that it is appropriate for an appellate court to modify a judgment to reflect a conviction for a lesser-included offense, even if that offense was not charged to the jury. Thus, the State argues that because all the elements of the lesser-included offense of attempted arson are included in the charge of arson in the first degree, Campbell had his day in court and was subsequently found guilty; thus, the State contends, Campbell would not suffer undue prejudice by a modification of the judgment and this Court should modify the judgment and render a conviction finding Campbell guilty of attempted arson.

Although the State urges this Court to adopt the view of the Hunt court, the Alabama Supreme Court has already addressed this issue and has made a decision to the contrary. The Alabama Supreme Court has held that when the State fails to present sufficient proof of all the elements of a crime, a conviction must be reversed, judgment must be rendered for the defendant, and an appellate court may not enter judgment on a lesser-included offense unless the jury was charged as to the lesser-included offense. Ex parte Roberts, 662 So.2d 229, 232 (Ala.1995). See also Ex parte Beverly, 497 So.2d 519 (Ala.1986).

In the present case, the State admits that Campbell could not have been convicted for the crime of arson in the first degree because the State presented no evidence of any actual damage to the building involved. Additionally, the jury was not charged as to the lesser-included offense of attempted arson. Therefore, under the principles set forth by the Alabama Supreme Court in Ex parte Roberts, Campbell’s conviction of arson in the first degree cannot be sustained and a judgment may not be entered for the lesser-included offense of attempted arson.

Based on the foregoing, the judgment of the trial court is reversed and judgment is rendered for Campbell on the charge of arson in the first degree.

AFFIRMED AS TO HIS CONVICTION FOR THIRD-DEGREE DOMESTIC VIOLENCE; REVERSED AND JUDGMENT RENDERED AS TO HIS CONVICTION FOR FIRST-DEGREE ARSON.

WINDOM, P.J., and WELCH, KELLUM, and JOINER, JJ., concur.

      . The State acknowledges that this Court is bound by prior decisions of the Alabama Supreme Court, which state that an appellate court may not enter a judgment on a lesser-included offense unless the jury was charged as to that offense. However, the State notes that its argument in this case is made to preserve the issue for certiorari review, because, the State contends, recent developments in various state and federal appellate courts permit the Alabama Supreme Court to revisit these decisions and to allow an appellate court to render a judgment for a lesser-included offense under certain circumstances, such as those present in this case.