author: THOMAS, Judge.

text:
    Jill PLACEY v. Laurie PLACEY.
    2090223.
    Court of Civil Appeals of Alabama.
    June 11, 2010.

      J. Flint Liddon, Birmingham, for appellant.
    Warren “Bo” Burke, Jr., of Klasing & Williamson, P.C., Birmingham, for appel-lee.
   THOMAS, Judge.

In November 2007, Laurie Placey (“the mother”) filed a protection-from-abuse (“PFA”) petition pursuant to the Protection from Abuse Act, codified at Ala.Code 1975, § 30-5-1 et seq. (“the PFAA”), against Jill Placey (“the daughter”) in the Family Court Division of the Jefferson Circuit Court. In her petition, the mother alleged that the 28-year-old daughter lived with the mother and John Placey (“the father”), that the daughter had pushed the mother, that the daughter had thrown frozen food at the mother, and that the daughter had threatened to kill both her parents by specific, detailed methods. The mother further alleged that the daughter was mentally ill, suffering from “treatment-resistant depression” and borderline-personality disorder.

After a trial, the trial court entered a PFA order on March 27, 2008, restraining the daughter from committing further acts of abuse or threatening further abuse and from having any contact with the mother. The order also prohibited the daughter from “annoying, telephoning, contacting, or otherwise communicating, directly or indirectly, with the mother” and restrained the daughter from “transferring, concealing, encumbering, or otherwise disposing of any specified property mutually owned or leased by the parties.” The order further excluded the daughter from the mother’s residence. The PFA order was set to expire on March 27, 2009.

The record reflects that litigation over the PFA order continued and that the daughter, in two “motions for consideration,” requested that certain property, in-eluding furniture, photographs, a video camera, a snake, a dog named Preston, and a quarter horse and all the tack related to that horse, be returned to her. In February 2009, the mother filed a motion to extend the existing PFA order for an additional period. See § 30-5-7(e)(2) (permitting a trial court to “continue” a PFA order for a definite period upon motion and a showing of cause). The trial court held another hearing, after which it extended the PFA order in effect to March 24, 2010.

On July 28, 2009, the mother filed a motion requesting that the trial court hold the daughter in contempt for violating the PFA order. The mother alleged that the daughter’s fiancé, Michael Witcher, had forcibly removed the family dog, Preston, from the mother’s possession while the mother was out walking Preston. The mother further alleged that Witcher then had placed Preston into the automobile in which the daughter was waiting and had driven away.

On July 30, 2009, the trial court rendered an order in which it stated that “[the] Court must now state and order that the ownership of the dog, Preston, has been discussed at every hearing and now [the Court] put[s] down in writing what has been verbally ordered: that [the mother and the father] have OWNERSHIP of Preston.” This order was entered on August 6, 2009. On August 31, 2009, the trial court entered an order requiring the daughter to return Preston to the mother.

On September 3, 2009, the daughter moved to have the trial court certify the August 6, 2009, order as a final judgment, pursuant to Rule 54(b), Ala. R. Civ. P. The trial court did so on September 9, 2009. The daughter then timely appealed to this court. The mother’s contempt motion, which had been set for a hearing on August 11 and again on August 26, 2009, was repeatedly continued and had not been ruled on as of the date the notice of appeal was filed.

The daughter makes two arguments on appeal. She argues first that the evidence at trial did not support the conclusion that the mother owned Preston. Her second argument is that the trial court lacked the authority to determine the permanent disposition of personal property under the PFAA.

We will first consider the daughter’s second argument — that the trial court lacked the authority to determine the permanent disposition of personal property under the PFAA. The daughter relies on the stated purposes of the PFAA to argue that “the Legislature never intended for the PFAA to be a remedy for all criminal and civil disputes among the parties” to a PFA action. She further argues that the filing of a PFA petition does not “grant the trial court subject-matter jurisdiction for the permanent distribution of personal property.”

The purposes of the PFAA are set out in Ala.Code 1975, § 30-5-l(b):

“(b) This chapter shall be liberally construed and applied to promote all of the following purposes:
“(1) To assure victims of domestic violence the maximum protection from abuse that the law can provide.
“(2) To create a flexible and speedy remedy to discourage violence and harassment against family members or others with whom the perpetrator has continuing contact.
“(3) To expand the ability of law enforcement officers to assist victims, to enforce the law effectively in cases of domestic violence, and to prevent further incidents of abuse.
“(4) To facilitate equal enforcement of criminal law by deterring and punishing violence against family members and others who are personally involved with the offender.
“(5) To recognize that battering is a crime that will not be excused or tolerated.
“(6) To provide for protection orders to prevent domestic abuse and provide for court jurisdiction and venue; to provide for court hearing for petitions for relief; to provide for the contents and the issuance of protection orders; and to provide penalties for violations of protection orders.”

Based on these “limited” purposes of the PFAA, the daughter contends that the PFAA was never intended to facilitate the disposition of the property of parties involved in PFA actions. She further points out that the temporary nature of a PFA order, which under § 30 — 5—7(e)(1) is limited to one year, although it may be extended for a definite period pursuant to § 30-5-7(e)(2), also supports the conclusion that a permanent determination of the ownership of property was not intended to be made in a PFA action. The disposition of property, the daughter says, should be handled in a appropriate action in an appropriate court, separate and apart from the PFA action.

Although a determination of ownership of property is not a stated purpose of the PFAA, that alone does not decide the question whether a court considering a PFA action has the authority to determine the ownership of specific personal property. The court deciding a PFA action has the power to make an order that, among other things, “[p]rohibit[s] the defendant from transferring, concealing, encumbering, or otherwise disposing of specified property mutually owned or leased by the parties.” § 30 — 5—7(c)(10). The court is also specifically given the broad power to “[ojrder other relief as it deems necessary to provide for the safety and welfare of the plaintiff....” § 30 — 5—7(c)(9). Because the Jefferson Family Court was acting in its capacity as a circuit court in its exercise of jurisdiction over the PFA action, that court would have had the same jurisdiction as a circuit court to consider, together with the PFA action, an action seeking to establish title to personal property, such as a detinue action. See § 30 — 5—3(b)(1) (stating that a PFA action may be joined with any other civil action).

The trial court’s August 6, 2009, order indicated that the ownership of Preston had been an issue in the litigation since its inception. In fact, the daughter had filed “motions for consideration” in which she had requested that the trial court award her various items of personal property, including Preston. The transcript of the March 2009 hearing contains much testimony concerning the personal property the daughter sought to have returned to her. The trial court had made statements regarding the ownership of Preston during the several hearings it had held in this case. The mother’s contempt allegations asserting that the daughter’s fiancé had forcibly removed Preston from the mother’s possession revived the issue before the court and resulted in the trial court’s having to, in order to protect the mother and to effectuate the no-contact provisions in the PFA order, state definitively that Preston belonged to the mother. The trial court acted within its discretion in entering an order definitively determining the ownership of Preston so as to protect the mother from the daughter’s continued, yet prohibited, contact with the mother. Its exercise of jurisdiction over the question of the ownership of Preston, as well as various other items of personal property that were, in fact, returned to the daughter, was based on the daughter’s requests in her “motions for consideration” and the requests made at the 2009 hearing and at other, earlier hearings that the trial court determine those ownership rights; thus, the issue concerning the ownership of Preston and the other personal property at issue was tried by the implied consent of the parties. See Rule 15(b), Ala. Rule Civ. P. (“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”); Winkleblack v. Murphy, 811 So.2d 521, 529-30 (Ala.2001); and Horwitz v. Horwitz, 897 So.2d 387, 343-44 (Ala.Civ.App.2004). The daughter also argues that the trial court’s determination that Preston belonged to the mother was not supported by the evidence. The daughter testified that she and not the mother had gone to the Shelby County Humane Society to select and adopt Preston in March 2003. The adoption contract that the daughter executed is contained in the record; it lists the daughter as the adopter. However, the daughter indicated on the adoption contract that she lived with her parents and that her parents would assist in “the daily exercise, training, and care” of Preston. The adoption contract also prohibits the daughter from selling Preston or giving him away to another person.

The daughter argues that the adoption contract proves that she, and not the mother, is Preston’s owner. Relying on the clause in the contract prohibiting her from transferring ownership of Preston, the daughter argues that her allowing the mother to assist in the care of Preston cannot be considered to have been a relinquishment of the daughter’s ownership of Preston. We are not convinced that the contract of adoption necessarily decides the question of ownership.

Although our state has several laws dealing with animals, and dogs in particular, some of which involve the liability of an owner of an animal for damage or injury caused by it, only one statute defines “owner” — the statute concerning rabies, Ala.Code 1975, § 3-7A-1 et seq. Section 3-7A-l(9) defines “owner” as “[a]ny person having a right of property in a dog, cat, ferret, or other animal, or who keeps or harbors the animal, or who has it in his or her care, or acts as its custodian, or who permits the animal to-remain on or about any premises occupied by him or her.” The breadth of this definition is necessitated by the purpose of the statute, which is to assure the immunization of household pets against rabies in order to protect the public health and welfare. However, it is instructive to note that ownership of an animal involves more than a mere right of property in an animal.

“Mere documentary title is not conclusive of ownership of an animal. A Certificate of registration creates only pri-ma facie presumption of title which can be rebutted by other competent evidence of actual ownership of a dog.
“A dog is a corporeal movable, the ownership of which is presumed to be in the person who possesses it.
“Broadly speaking, the burden of proving ownership of animals rests upon the party asserting ownership. Exclusive possession of an animal for a period of time is presumptive evidence of ownership thereof, and long possession of animals is strong evidence of ownership.
“Ownership may be shown by any competent evidence.”

4 Am.Jur.2d Animals § 5 (2007) (footnotes omitted). “Where a pet is the subject of a division of property, the courts sometimes consider the best interest of the animal, and, as a pet is personal property, sometimes do not.” 3B C.J.S. Animals § 4 (2003) (footnotes omitted).

The testimony at trial, while conflicting, would support the conclusion that Preston was cared for primarily by the mother, who testified that Preston was “high maintenance.” The mother explained that Preston had to be walked every day and that he required special, expensive dog food. The mother explained that she had encouraged the daughter to pick out a dog at the humane shelter but ■ that Preston had always lived with the family as & family pet. According to both the mother and a letter from Preston’s veterinarian admitted into evidence, the parents had taken Preston to every veterinarian visit and had paid for all of the veterinarian bills associated with Preston’s care. The mother had cared for Preston since the daughter’s removal from the family home in 2008.

The trial court determined that Preston would be better cared for in the family home occupied by the mother, where Preston had spent the last six years of his life. The trial court noted at trial that the daughter was living in a hotel and that Preston needed a yard and not the cramped quarters of a hotel room. Thus, it appears that the trial court considered the best interest of Preston in determining that the mother was Preston’s true owner. In light of the fact that the trial court considered conflicting ore tenus evidence in making this determination, we cannot revisit it. See Argo v. Greene, 441 So.2d 950, 952 (Ala.Civ.App.1983) (“Where evidence relating to the ownership and right to possession of personal property ... is in conflict, the resolution of the conflict is for the [fact-finder].”).

AFFIRMED.

THOMPSON, P.J., and PITTMAN, J., concur.

BRYAN and MOORE, JJ., concur in the result, without writings.

      . In April 2010, the legislature amended the PFAA, effective July 1, 2010. Those amendments are not applicable in this case.

      . In Jefferson County, PFA petitions are handled in the Jefferson Family Court, a division of the Jefferson Circuit Court. See Act No. 674, Ala. Acts 1967 (renaming the “Juvenile and Domestic Relations Court of Jefferson County” the "Family Court of Jefferson County”); Act No. 478, Ala. Acts 1935 (establishing in certain counties a "Juvenile and Domestic Relations Court” and providing that those courts would exercise jurisdiction over juvenile matters and also exercise "all the power, jurisdiction and authority” of the circuit courts). PFA petitions are apparently assigned "JU” case numbers, although those petitions are not juvenile in nature and although only circuit and district courts have jurisdiction over PFA actions. Ala.Code 1975, § 30 — 5—2(a)(3).

      . Because this case involves no issues of juvenile law, and because the PFAA requires that a PFA action be handled in either a circuit court or a district court, but not a juvenile court, Ala.Code 1975, § 30-5-2(a)(3), this court has concluded that the time for taking the appeal in this case was 42 days, not 14 days. See Rule 4(a)(1), Ala. R.App. P.

      . The PFAA specifically prohibits any order entered or any agreement made pursuant to the act from affecting title to real property. § 30 — 5—7(f)-


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    Elfreda MILLER v. Wesley CLECKLER.
    2090195.
    Court of Civil Appeals of Alabama.
    June 11, 2010.

      Rex W. Slate of Smith & Alspaugh, P.C., Birmingham, for appellant.
    Laura Sidwell Maki of Wade Anderson & Associates, Birmingham, for appellee.
   BRYAN, Judge.

Elfreda Miller, the plaintiff below, appeals from a summary judgment entered in favor of Wesley Cleckler, one of the defendants below, in Mrs. Miller’s action alleging negligence and wantonness. We affirm in part, reverse in part, and remand.

This case involves a four-automobile accident that occurred on Interstate 65 (“I-65”) in Shelby County. On Friday afternoon, August 4, 2006, Mrs. Miller was driving an automobile south on 1-65. Mrs. Miller was traveling in the left lane behind her husband, Richard Miller, who was driving a separate automobile. Cleckler was also traveling south on 1-65, driving his pickup truck. Cleckler testified that he was driving at a speed of 60 or 65 miles per hour and that traffic was “pretty heavy” at the time. Both Cleckler and Mrs. Miller testified that the speed limit was 70 miles per hour. Mrs. Miller testified that there was a “steady flow of traffic” with vehicles “moving freely.” The record on appeal contains testimony from observers that Cleckler was “darting” through traffic “at a high rate of speed” “trying to pass everyone.”

At some point, Cleckler merged his pickup truck from the right lane into the left lane in front of Mr. Miller’s vehicle. Cleckler testified that, when he moved into the left lane ahead of Mr. Miller, he moved into a gap of about three or four automobile lengths. Cleckler further testified that, shortly after moving into the left lane, the vehicles in front of him began to brake, causing him to apply his brakes “px-etty good.” Mr. Miller testified that Cleckler moved “directly in front of’ his vehicle and that Cleckler “slammed on his brakes” because he was too close to the vehicle in front of him. As a result of decider’s braking, Mr. Miller and the other drivers traveling behind Cleckler began to brake as well.

At that time, Charles Williams was driving a vehicle behind Mrs. Miller, who was behind Mr. Miller. Williams testified that he was traveling at a speed of approximately 70 miles per hour approximately one automobile length behind Mrs. Miller. Mrs. Miller testified that, when she applied her brakes in response to Mr. Miller’s braking in front of her, Williams’s vehicle struck her vehicle from behind, causing her vehicle to collide with the back of Mr. Miller’s vehicle. Mr. Miller’s vehicle in turn collided with the back of Cleck-ler’s pickup truck. ' Mrs. Miller testified that her vehicle was not in danger of colliding with Mr. Miller’s vehicle before Williams struck her from behind. However, Williams testified that he thought that Mrs. Miller’s vehicle had collided with Mr. Miller’s vehicle before his own vehicle collided with Mrs. Miller’s vehicle, but he was not completely sure about that. The accident occurred at approximately 3:15 p.m. on a sunny day.

Mrs. Miller sued Cleckler, Williams, and fictitiously named parties, alleging negligence and wantonness and seeking to recover damages for injuries allegedly sustained in the automobile accident. Cleckler answered and denied liability. Cleckler’s answer asserted, among other things, that Mrs. Miller’s injuries were proximately caused by the negligence or wantonness of another. Cleckler then moved for a summary judgment, asserting that his actions did not proximately cause the accident. Cleckler’s summary-judgment motion also asserted that, although Alabama law prohibits a driver from following another driver too closely, Alabama law does not require a driver to look behind him before stopping for traffic. Cleckler’s motion implicitly argued that Williams’s conduct proximately caused the accident. The trial court entered a judgment granting Cleckler’s summary-judgment motion, and the trial court certified that judgment as final, pursuant to Rule 54(b), Ala. R. Civ. P. Mrs. Miller appealed to the supreme court, and the supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

“In reviewing the disposition of a motion for summary judgment, ‘we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was ‘entitled to a judgment as a matter of law.’ Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

On appeal, Mrs. Miller first argues that the trial court erred in entering a summary judgment in decider’s favor on the negligence claim because, she says, the record contains substantial evidence indicating that decider’s conduct proximately caused the accident. Conversely, decider argues that the evidence establishes that Williams’s conduct was the sole proximate cause of the accident. That is, decider maintains that Williams’s conduct served as an intervening cause between decider's alleged negligence and the accident.

“In order to establish a negligence claim, a plaintiff must prove: ‘(1) a duty to a foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4) damage or injury.’ ” S.B. v. Saint James Sch., 959 So.2d 72, 97 (Ala.2006) (quoting Martin v. Arnold, 643 So.2d 564, 567 (Ala.1994)). “A summary judgment is rarely appropriate in a negligence action.” Nelson v. Meadows, 684 So.2d 145, 148 (Ala.Civ.App.1996). Typically, the question of proximate causation is a question of fact to be resolved by the jury; that question must be decided by the jury if reasonable inferences from the evidence support the plaintiff's claim. Dixon v. Board of Water & Sewer Comm’rs of Mobile, 865 So.2d 1161, 1166 (Ala.2003); City of Mobile v. Largay, 346 So.2d 393, 395 (Ala.1977). See also Tuscaloosa County v. Barnett, 562 So.2d 166, 169 (Ala.1990) (stating that questions of proximate causation and intervening cause are questions for the jury).

“Loosely defined, an ‘intervening cause’ is one which occurs after an act committed by a tortfeasor and which relieves him of his liability by breaking the chain of causation between his act and the resulting injury. Vines v. Plantation Motor Lodge, 336 So.2d 1338 (Ala.1976). This Court has stated:
“ ‘However negligent a person may have been in some particular, he is liable only to those who may have been injured by reason of such negligence, as the proximate cause. Where some independent agency has intervened and been the immediate cause of the injury, the party guilty of negligence in the first instance is not responsible.’ Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388 (1961).
“An intervening cause may be an ‘act of God,’ such as an extraordinary event of nature, Bradford v. Stanley, 355 So.2d 328 (Ala.1978), or the actions of another, usually, though not necessarily, another tortfeasor; however, a cause is not an intervening cause, so as to relieve a tortfeasor of his liability, unless it comes into active operation after the tortfeasor has acted. [W Keeton, D. Dobbs, R. Keeton, D. Owen,] Prosser & Keeton on Torts, [§ 44, p.] 301 [ (5th ed. 1984) ]. In other words, it must occur between the act of the tortfeasor and the injury sustained for the chain of causation between the act and the injury to be broken. Vines, supra; Aplin v. Dean, 231 Ala. 320, 164 So. 737 (1935).
“Not every cause which comes into operation after a tortfeasor has acted will relieve him of liability for his wrongful act. More than the proper temporal relationship between the tortfeasor’s act and the subsequent cause is required. In order to be an intervening cause, a subsequent cause also must have been unforeseeable and must have been sufficient in and of itself to have been the sole ‘cause in fact’ of the injury. Vines, supra, at 1339. If an intervening cause could have reasonably been foreseen at the time the tortfeasor acted, it does not break the chain of causation between his act and the injury. Vines, supra; Morgan [v. City of Tuscaloosa, 268 Ala. 493, 108 So.2d 342 (1959)]; Louisville & N.R. Co. v. Courson, 234 Ala. 273, 174 So. 474 (1937). Conversely, if the intervening cause was unforeseeable, the causal chain is broken. Vines, supra. In the same respect, if the intervening cause is not sufficient to be considered the sole ‘cause in fact’ of the injury, if it is not in and of itself sufficient to stand as the ‘efficient cause’ of the injury, the causal chain is not broken; but, if the intervening cause was alone sufficient to produce the injury complained of, it is deemed the proximate cause of the injury and the tortfeasor or tortfeasors between whose acts and the injury the cause intervened are relieved of liability. Watt v. Combs, 244 Ala. 31, 12 So.2d 189 (1943); Goodwyn v. Gibson, 235 Ala. 19, 177 So. 140 (1937).”

General Motors Corp. v. Edwards, 482 So.2d 1176, 1194-95 (Ala.1985), overruled on other grounds, Schwartz v. Volvo North America Corp., 554 So.2d 927 (Ala.1989). Therefore, in summary, in order for conduct to be an intervening cause insulating the defendant from liability, the conduct must (1) occur after the defendant’s actions giving rise to the negligence claim, (2) be unforeseeable to the defendant at the time the defendant acts, and (3) be sufficient to be the sole proximate cause of the plaintiffs injury. Id.

Cleckler contends that Williams, by following one automobile length behind Mrs. Miller while traveling 70 miles per hour, served as the intervening cause of the accident and the alleged resulting injuries. Cleckler cites Mrs. Miller’s testimony stating that, when she braked in response to Cleckler’s and Mr. Miller’s braking in front of her, her vehicle was in no danger of colliding with the back of Mr. Miller’s vehicle until Williams’s vehicle struck her vehicle. However, Williams testified that he thought Mrs. Miller’s vehicle collided with the back of Mr. Miller’s vehicle first, before the collision between Williams’s vehicle and Mrs. Miller’s vehicle, but he was not completely sure about that. Therefore, there appears to be a factual issue regarding the initial collision in this case. If Mrs. Miller’s vehicle in fact collided with the back of Mr. Miller’s vehicle before Williams’s vehicle collided with the back of Mrs. Miller’s vehicle, Williams’s tailgating could not be an intervening cause sufficient to break the chain of causation between Cleckler’s conduct and the accident. In such a situation, whether Cleckler’s conduct caused the accident would be a factual question to be resolved by the trier of fact.

Even assuming that there is no genuine issue of material fact regarding the initial collision and that Williams’s vehicle struck Mrs. Miller’s vehicle first, Cleckler has not established that Williams’s conduct was an intervening cause. In order for Williams’s conduct to be an intervening cause, it must have occurred after Cleckler’s alleged negligence, it must have been unforeseeable to Cleckler, and it must have been sufficient to be the sole proximate cause of the accident. General Motors, supra. First, Williams’s conduct, tailgating, occurred concurrently with Cleckler’s conduct. Second, there is a genuine issue of material fact regarding whether Williams’s conduct should have been foreseeable to Cleckler. Cleekler testified that traffic at the time of the accident was heavy. Given that testimony, there is a factual issue regarding whether Cleekler should have foreseen that a driver would be tailgating among the cars behind him, creating a potentially dangerous situation if Cleekler should have to brake suddenly, when Cleekler merged into a space three or four automobile-lengths long directly ahead of Mr. Miller.

In addition to asserting in the summary-judgment motion that he did not cause the accident, Cleekler also asserted that there is no caselaw or statute stating that a driver “has a duty to look behind him before he stops for traffic.” Insofar as Cleekler may have moved for a summary judgment on the additional ground that he did not owe a duty to Mrs. Miller, we make the following comments. Cleck-ler, as the driver ahead, had a duty to the drivers behind him “ ‘to use the road in the usual way, in keeping with the laws of the road.’ ” Cox v. Miller, 361 So.2d 1044, 1045 (Ala.1978) (quoting Gribble v. Cox, 349 So.2d 1141, 1144 (Ala.1977)). In general, a driver has the duty to exercise due care and to keep a lookout for others using the road. Holley v. Josey, 263 Ala. 349, 354, 82 So.2d 328, 332 (1955). “ ‘[E]ven if a motorist complies with all the requirements of a statute or ordinance regulating the operation of motor vehicles, he may yet be liable for the failure to exercise ordinary care to avoid injury to another traveler in front of or behind him on the highway.’ ” Cox, 361 So.2d at 1046 (quoting Gribble, 349 So.2d at 1144). The trial court could not have properly entered a summary judgment in favor of Cleekler based on the general ground that he did not owe a duty to Mrs. Miller.

Mrs. Miller also argues that the trial court erred in entering a summary judgment in favor of Cleekler on her wantonness claim. In Ex parte Essary, 992 So.2d 5, 9 (Ala.2007), our supreme court stated:

“ ‘Wantonness’ has been defined by this Court as the conscious doing of some act or the omission of some duty while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result. Bozeman v. Central Bank of the South, 646 So.2d 601 (Ala.1994). To constitute wantonness, it is not necessary that the actor know that a person is within the zone made dangerous by his conduct; it is enough that he knows that a strong possibility exists that others may rightfully come within that zone. Joseph v. Staggs, 519 So.2d 952, 954 (Ala.1988). Also, it is not essential that the actor should have entertained a specific design or intent to injure the plaintiff, only that the actor is ‘conscious’ that injury will likely or probably result from his actions. Id. ‘Conscious’ has been defined as ‘ “perceiving, apprehending, or noticing with a degree of controlled thought or observation: capable of or marked by thought, will, design, or perception” ’; ‘ “having an awareness of one’s own existence, sensations, and thoughts, and of one’s environment; capable of complex response to environment; deliberate.” ’ Berry v. Fife, 590 So.2d 884, 885 (Ala.1991) (quoting Webster’s New Collegiate Dictionary 239 (1981) and The American Heritage Dictionary of the English Language 283 (1969), respectively).”

The record contains testimony that, before the accident occurred, Cleekler was moving his pickup truck from lane to lane in heavy traffic, apparently trying to pass other drivers. Mr. Miller testified that Cleekler was driving “at a high rate of speed.” However, Mr. Miller also testified that he was driving only approximately 65 miles per hour when Cleekler moved his pickup truck directly ahead of him immediately before the accident. The evidence in the record indicates that the speed limit was 70 miles per hour. Cleckler testified that, when he merged in front of Mr. Miller, he moved into a space three or four automobile-lengths long before having to brake for the traffic ahead of him. Although Cleckler’s conduct conceivably could amount to negligence, there is not substantial evidence supporting the wantonness claim against him. The record does not contain substantial evidence indicating that Cleckler acted with the requisite consciousness that injury was likely to or would pivbably result from his conduct. Ex parte Essary. Accordingly, the trial court did not err in entering a summary judgment on Mrs. Miller’s wantonness claim against Cleckler.

In conclusion, we affirm the summary judgment with respect to Mrs. Miller’s wantonness claim. We reverse the summary judgment with respect to Mrs. Miller’s negligence claim, and we remand the case to the trial court.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

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

      . Section 32-5A-89(a), Ala.Code 1975, provides:
      "(a) The driver of a motor vehicle shall not follow another more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway. Except when overtaking and passing another vehicle, the driver of a vehicle shall leave a distance of at least 20 feet for each 10 miles per hour of speed between the vehicle that he is driving and the vehicle that he is following.”


author: MAIN, Judge.

text:
    Fredrick Darnell BANKS v. STATE of Alabama.
    CR-08-0769.
    Court of Criminal Appeals of Alabama.
    Feb. 5, 2010.

      Glenn L. Davidson, Mobile, for appellant.
    Troy King, atty. gen., and Marc Alan Starrett, asst. atty. gen., for appellee.
   MAIN, Judge.

Fredrick Darnell Banks was convicted of first-degree robbery, a violation of § 13A-8^11(a)(l), Ala.Code 1975. The trial court sentenced Banks to life imprisonment. This appeal followed.

Patty Thompkins, an employee of a Winn-Dixie grocery store in Mobile County, testified that on January 23, 2008, she was working at the store and noticed a black male, later identified as Banks, wearing dark clothing enter the store at approximately 11:30 p.m. Thompkins stated that she felt uneasy about the male. He walked around the store with one item, a bag of dog food, in his buggy and continuously talked on his cellular telephone. When he approached Thompkins’s checkout register, he no longer had the dog food in his buggy. Instead, he held a soft drink and continued to talk on his telephone. Thompkins asked him for his Winn-Dixie reward card. He provided Thompkins with a phone number instead, which Thompkins used to access his card. While she was ringing up his soda purchase, Thompkins noticed his earrings which were “praying hands.” After the sale, he remained in the store, standing between the register and the front door.

Meanwhile, another customer, later identified as Dustin Alston, entered the store and stood in line at Thompkins’s register. Alston asked for cigarettes, and Thompkins walked toward the customer-service counter to get them. As she returned from the customer-service counter, she saw two masked black men carrying guns entering the store.

Thompkins attempted to flee the store, but the two masked men grabbed her at gunpoint, asking for the manager. Meanwhile, Banks held a gun to Alston’s head. The store manager, Michael Bjorensen, who was on the ground by the self-checkout lanes, stood up, and the masked men took Thompkins and him at gunpoint to the store office. The men threatened the office manager, Denise Bourg, to open the office door or they would shoot Thompkins and Bjorensen.

Thereafter, the men forced Thompkins, Bjorensen, and Bourg, along with Alston, to lie on the ground. The men took cash from the store safe, and then brought another employee, Ronald Sutton, who had been working in the rear of the store, into the office. After the men left the store, the office manager telephoned emergency 911. The men took over $16,000 from the store during the robbery.

Detective David Marston of the City of Mobile Police Department investigated the robbery. Based upon the Winn Dixie reward account used by Banks on the evening of the robbery, Detective Marston searched for Banks as a potential suspect. Several days after the robbery, on January 30, 2008, officers detained Banks when they came upon his vehicle, a white Cadillac, broken down and in the middle of a road. After waiving his Miranda rights, Banks told Detective Marston that he had never been inside the Winn-Dixie grocery store. He later admitted that he was at the store on the evening of January 28, 2008, “but did not see anything.” (R. 337.) During the interview, Banks wore the “praying hands” earrings that Thompkins had noticed on the evening of the robbery.

Detective Marston obtained a search warrant for Banks’s vehicle. The search resulted in the seizure of two photographs of Banks, a black jacket, and pants, where a money wrapper marked with the address and number of the Winn-Dixie grocery store where the robbery took place was found inside one of the pockets. The officers found no money or guns in the vehicle.

Sheri Banks, Banks’s mother, testified that a few days before his arrest, Banks telephoned her and told her that a man had pulled a gun on him. She instructed him to call the police. After receiving the telephone call from her son, she went to her sister’s house and telephoned the police. When the police arrived at Sheri Banks’s sister’s house, the officer prepared an incident report. She testified that Banks also reported the incident to the police.

I.

Banks first argues that the trial court erred in prohibiting him from introducing into evidence an incident report for menacing he filed after the robbery; the evidence, he said, related to the issue of flight. Banks moved to admit the incident report, which he argued showed that someone had threatened him with a gun on January 28, 2008, several days after the January 23, 2008, robbery at the Winn Dixie store, but before he was arrested on January 30, 2008, because he claimed that it was admissible to rebut the State’s evidence that he was eluding the police following the robbery at the Winn Dixie grocery store. We conclude that the trial court did not exceed its discretion in refusing to admit the January 28, 2008, incident report.

“ ‘ “The admission or exclusion of evidence is a matter within the sound discretion of the trial court.” Taylor v. State, 808 So.2d 1148, 1191 (Ala.Crim.App.2000), aff'd, 808 So.2d 1215 (Ala.2001). “The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing of abuse of discretion.” Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000). In addition, “[tjrial courts are vested with considerable discretion in determining whether evidence is relevant, and such a determination will not be reversed absent plain error or an abuse of discretion.” Hayes v. State, 717 So.2d 30, 36 (Ala.Crim.App.1997).’
“Gavin v. State, 891 So.2d 907, 963 (Ala.Crim.App.2003).”

Woods v. State, 13 So.3d 1, 23 (Ala.Crim.App.2007).

Rule 401, Ala.R.Evid., defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Although relevant evidence is admissible, Rule 402, Ala.R.Evid., it “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Rule 403, Ala. R.Evid.

Banks’s mother testified that on January 28, 2008, five days after the robbery at the Winn-Dixie grocery store, she initiated the filing of an incident report because her son told her that someone had pulled a gun on him and threatened to shoot him. Sheri Banks further testified that her son, Banks, gave his rendition of the events for the report. After Sheri Banks testified and was cross-examined, Banks moved to admit the incident report into evidence. Defense counsel argued that the incident report was relevant to negate that Banks was on the run after the Winn-Dixie robbery. Defense counsel also argued that the incident report showed that law-enforcement officers had spoken to Banks prior to his arrest for the Winn-Dixie robbery. Before Sheri Banks testified, the State argued that the incident report was not relevant. The trial court found that the incident report was inadmissible and only bolstered Sheri Banks’s testimony. (R. 381, 384.)

In this case, the incident report was cumulative of Sheri Banks’s testimony. See Smith v. State, 745 So.2d 922, 936 (Ala.Crim.App.1999) (stating that the exclusion of admissible evidence does not constitute reversible error when the evidence would have been merely cumulative of other evidence of the same nature that was admitted). Further, the exclusion of the incident report was harmless in that it did not affect the outcome of the trial or Banks’s substantial rights. See Ex parte Lowe, 514 So.2d 1049, 1050 (Ala.1987) (“The proper inquiry here is not whether evidence of the defendant’s guilt is overwhelming but, instead, whether a substantial right of the defendant has or probably has been adversely affected.”). Therefore, the trial court did not err in not admitting the incident report.

II.

Banks next argues that the trial court erred by refusing to give his requested jury charges concerning eyewitness-identification testimony. Specifically, Banks contends that the trial court erred in refusing to give proposed jury charges 6 and 7. (C. 33-34; R. 360-61.)

Banks’s requested jury charge no. 6 provided:

“The reliability of eyewitness identification has been raised as an issue in this case and deserves your attention. Identification testimony is an expression of belief or impression by the witness. Its value depends upon the opportunity the witness had to observe the offender at the time of the offense and later to make a reliable identification, and upon the influences and circumstances under which the witness made the identification.
“You must consider the credibility of each identification witness in the same way as any other witness. Consider whether she is truthful, and consider whether she had the capacity and opportunity to make a reliable observation on the matter covered in his testimony.
“The State has the burden of proving beyond a reasonable doubt that the defendant was the person who committed the crime.”

(C. 33.) Banks’s requested jury charge no. 7 provided as follows:

“I charge you, members of the jury, that identification testimony by an eyewitness is in the nature of opinion testimony, and the jury should view and weigh such testimony as it would any expression of opinion by a witness.”

(C. 34.)

The following exchange occurred regarding proposed instructions numbered 6 and 7:

“THE COURT: Number 6. I’m denying Number 6 because I’m — I give that, but I don’t talk about the reliability of witnesses, and identification is an expression of belief or opinion, and all of that. I’ve just never given anything like that, and I don’t intend to start now. It may be right, it may be wrong, but I’m going to deny that charge, Number 6.
“As with Number 7, stating that an eyewitness’s testimony is in the nature of opinion testimony. Well, most people’s testimony is their opinion. I mean, so, I don’t know what that meant. So I’m denying it. That’s 6 and 7.”

(R. 360.)

“[DEFENSE COUNSEL]: Yes, sir. As to 6 and 7, the eyewitness, I think they are correct statements of the law, and especially in light of the Prosecution saying in her voir dire that eyewitness testimony is just as credible as DNA and fingerprints, et cetera. And I think that was a misrepresentation of what eyewitness testimony is. But it still can be tested as to its credibility. So I think that in lieu of those voir dire statements, that those would be apropos in this case to be given, and gravaman to the defense that it’s not so much just this is the guy that did it, but as to what they claim they saw, et cetera. That’s their opinion, and it can still be attacked as to their credibility. They may have a belief in it. So I think they cover that aspect of it. I don’t think it will be adequately covered in your oral charge.”

(R. 361.)

We first question whether Banks adequately preserved this issue for review. Banks argued at trial, and he argues on appeal, that the refused instructions were correct statements of the law and that they would not be adequately covered in the oral charge. On appeal, Banks cites no authority for the proposition except authority stating only general propositions of law. Rule 28(a)(10), Ala.R.App.P., requires that an argument in an appellate brief contain “the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.” Banks has failed to satisfy Rule 28(a)(10). See Spradlin v. Spradlin, 601 So.2d 76, 78-79 (Ala.1992) (holding that citation to a single case with no argument as to how that case supports the appellant’s contention on appeal was insufficient to satisfy Rule 28(a)(5) (now Rule 28(a)(10)), Ala.R.App.P.).

However, even if it were properly before this Court, Banks’s argument is without merit. The record indicates that the trial judge did give a lengthy charge concerning the credibility of the witnesses. The court gave the following instruction:

“[THE COURT]: In deciding whether or not you believe any witness, I suggest you ask yourself a few questions. Did the witness impress you as one who was telling the truth? Did the witness have any particular reason not to tell the truth? Did the witness have a personal interest in the outcome of the case? Did the witness have an opportunity and ability to observe accurately the things he or she testified about? Did the witness appear to understand the questions clearly and answer them directly? Did the witness’s testimony differ from other testimony or other evidence?
“The credibility of a witness may be impeached or attacked by introducing evidence that the witness made a statement on an earlier occasion which is inconsistent with the witness’ trial testimony.
“If you believe from the evidence that a witness has made a statement on an earlier occasion which is inconsistent with the witness’ trial testimony, such evidence may go to the credibility of that witness, and you may consider it along with all of the other evidence in determining what weight you will give that witness’ testimony.
“I will tell you that a fact may be established as firmly by the testimony of one witness as that of the testimony of the entire community.
“I charge you that the testimony of law enforcement officers is to be subjected to the same test and given the same consideration of weight as that of any other witness. No more or no less weight can be given their testimony simply because of their official capacity.
“Everyone, law enforcement officers and others, are judged and treated the same way.
“I also charge you that the weight of the evidence is not necessarily determined by the number of witnesses who testified.”

(R. 392-95.) The trial court adequately covered the relevant legal issues of the case and did not err in refusing to give the requested instructions. See Ex parte Jones, 450 So.2d 171 (Ala.1984) (trial court properly refused defendant’s requested charges on identification where witness identified defendant); Miller v. State, 687 So.2d 1281, 1285 (Ala.Crim.App.1996) (trial court thoroughly charged the jury on the credibility of the witnesses and the manner in which the jury was to treat the identification testimony); Jennings v. State, 513 So.2d 91, 94-95 (Ala.Crim.App.1987) (trial court adequately covered the issue of identification, and its refusal of the defendant’s requested charge on the same point of law was not error); Henderson v. State, 373 So.2d 1218 (Ala.Crim.App.), cert. denied, Ex parte Henderson, 373 So.2d 1221 (Ala.1979) (trial court properly refused requested identification evidence instructions where requested charges were misleading and abstract because there was no evidence indicating that victim’s identification was tainted by fact that police had shown victim pictures of defendant before trial); Rowser v. State, 346 So.2d 533, 535-536 (Ala.Crim.App.), cert. denied, Ex Parte Rowser, 346 So.2d 536 (Ala.1977) (where a witness is positive in identifying the defendant there is no good reason for giving a charge on the human error or mistake that may occur in the identification process). Therefore, even if the issue were properly before this Court, we would find no error in the trial court’s refusal to give the requested jury charges.

III.

Lastly, Banks argues that the trial court committed reversible error in sentencing him without a sentencing hearing, without an allocution, and without a pre-sentence investigation and report. We must first determine whether this claim is properly before this court.

In Ex parte Seymour, 946 So.2d 536, 538 (Ala.2006), a collateral-review case, the Alabama Supreme Court, in holding that a defect in the criminal indictment is a non-jurisdictional error that may be waived, discussed extensively the concept of a trial court’s subject-matter jurisdiction. Additionally, this Court has held that on collateral-review, “the failure of the trial court to advise a defendant of his or her right to appeal a guilty-plea conviction and to have counsel appointed on appeal if he or she is indigent is not a defect that impacts the jurisdiction of the trial court.” Robey v. State, 950 So.2d 1235, 1237 (Ala.Crim.App.2006). In Shaw v. State, 949 So.2d 184 (Ala.Crim.App.2006), this Court held that, on collateral review, “[a] claim that a defendant was not afforded the opportunity to address the court before the sentence is imposed is not a jurisdictional claim.” 949 So.2d at 187.

Although we have consistently held in collateral-review proceedings that an al-locution, the right to appeal a guilty-plea conviction, and the right to have counsel appointed on appeal are nonjurisdictional errors that may be waived, we conclude that the requirement that a sentencing hearing be held and the requirement that the defendant be afforded the opportunity to speak on his or her behalf at the sentencing hearing are exceptions to the general preservation rule and are required to afford a defendant the minimal due process. Rule 26.6(b), Ala.R.Crim.P, provides that a sentencing hearing is required in all cases in which the judge has “discretionary” sentencing authority, unless a hearing is waived by the parties with the consent of the court. Further, the Committee Comments following the rule state that “after conviction, a judge holds a hearing for the purpose of receiving evidence bearing on the issues of the length and terms of the sentence to impose and whether to grant probation, unless the statute gives no discretion as to either term of sentence or probation.” Rule 26.6, Ala.R.Crim.P., Committee Comments.

Robbery in the first degree, when a firearm or deadly weapon was used in the commission of the robbery, is a Class A felony punishable by life imprisonment or by imprisonment for not more than 99 years or less than 20 years. See § 13A-8-41, Ala.Code 1975; § 13A-5-6(a)(l), Ala. Code 1975; and § 13A-5-6(4), Ala.Code 1975. Here, the trial court could have sentenced Banks to a term as short as 20 years or as long as 99 years or life. Because the trial court had discretion in determining Banks’s sentence, a sentencing hearing was required, unless such a hearing was waived by the parties with the trial court’s consent. Rule 26.6(b)(1), Ala. R.Crim. P.; Cf. Holley v. State, 651 So.2d 50 (Ala.Crim.App.1994) (trial court’s error in sentencing defendant without a sentence hearing was harmless because the minimum sentence was imposed).

The record discloses that immediately after the jury returned a guilty verdict on the charge of first-degree robbery, the trial judge adjudged Banks guilty and sentenced him to life imprisonment. Thereafter, the trial judge remanded Banks to the custody of the sheriff. Banks’s trial counsel gave oral notice of appeal and then moved to withdraw as Banks’s counsel. The trial court instructed Banks’s trial counsel to file a written notice of appeal and appointed another attorney to represent Banks on appeal. (R. 415-16.) Further, the trial judge entered notations on the case-action summary adjudging Banks guilty, ordering him to pay $50 to the crime victims compensation fund, giving him credit for time spent in jail, noting the oral notice of appeal, and appointing appellate counsel for Banks. (C. 4.)

Although the trial court purported to commence a sentencing “hearing” immediately after a determination of guilt, the court merely announced Banks’s sentence without allowing Banks the opportunity to be heard. The record does not indicate that Banks waived a sentencing hearing. See Day v. State, 539 So.2d 410, 415 (Ala.Crim.App.1988) (mere acquiescence does not constitute a waiver of a sentence hearing). “ ‘A hearing ordinarily is defined, in matters not associated with full trials, as a proceeding in which the parties are afforded an opportunity to adduce proof and to argue (in person or by counsel) as to the inferences flowing from the evidence.’ Fiorella v. State, 40 Ala.App. 587, 590, 121 So.2d 875, 878 (I960).” Ex parte Anderson, 999 So.2d 575, 578 (Ala.2008).

Additionally, regarding the requirement of an allocution, Ex parte Anderson, 434 So.2d 737 (Ala.1983), and the cases following it hold that when the lack of an allocution or the waiver of allocution is raised on direct appeal remand is required because a sentence without an allocution is erroneous. See Davis v. State, 747 So.2d 921, 925 (Ala.Crim.App.1999); Newton v. State, 673 So.2d 799, 800-01 (Ala.Crim.App.1995); Burks v. State, 600 So.2d 374, 382-83 (Ala.Crim.App.1991); Duncan v. State, 587 So.2d 1260, 1264 (Ala.Crim.App.1991); Cline v. State, 571 So.2d 368, 372 (Ala.Crim.App.1990); Maul v. State, 531 So.2d 35, 36 (Ala.Crim.App.1988). See also Ebens v. State, 518 So.2d 1264, 1269 (Ala.Crim.App.1986); Oliver v. State, 25 Ala.App. 34, 34, 140 So. 180, 181 (1932) (wherein the court noted that “to constitute a valid judgment[, the fact that the defendant was asked if he had anything to say why the sentence of law should not be pronounced upon him] must appear in the minute entry of the judgment”). We note that in Shaw v. State, supra, this Court recognized and reiterated that on direct appeal, when the issue of the lack of an allocution or a waiver of an allocution is raised, the case is to be remanded. 949 So.2d at 187. Rule 26.9(b)(1) also provides that in pronouncing the sentence, the trial judge must “[a]fford the defendant an opportunity to make a statement in his or her own behalf before imposing sentence.” The Committee Comments following Rule 26 state that a defendant is entitled to allocution, regardless of the gravity of the sentence imposed. See Rule 26.9, Ala. R.Crim.P., Committee Comments. However, this Court has consistently held in appeals from the denial of a Rule 32, Ala. R.Crim. P., petition that “[a] claim that a defendant was not afforded the opportunity to address the court before the sentence is imposed is not a jurisdictional claim.” Shaw v. State, 949 So.2d at 187. See Holloway v. State, 971 So.2d 729 (Ala.Crim.App.2006); Robey v. State, 950 So.2d 1235 (Ala.Crim.App.2006). See also Davis v. State, 720 So.2d 1006, 1024-25 (Ala.Crim.App.1998). As Justice Stuart stated in her dissent in Ex parte Robey, 953 So.2d 363, 365 (Ala.2006),

“The law in Alabama regarding a trial court’s personal and subject-matter jurisdiction over a criminal defendant is convoluted, and the definition of subject-matter jurisdiction, i.e., a trial court’s authority to render judgment and to impose sentence, is tortured with inaccuracy and confusion.”

953 So.2d at 365-66. Recent Alabama Supreme Court opinions such as Seymour and Robey have done much to clarify the understanding and to rein in the use of the term “jurisdictional.” We invite the Alabama Supreme Court to take the next opportunity to also provide guidance as to the question whether certain “due process” rights or mandatory stages of trial proceedings constitute “jurisdictional” matters and to determine which is bad law: the line of cases in collateral proceedings holding that the lack of an allocution is a nonjurisdictional defect subject to the procedural bars of Rule 32, Ala.R.Crim.P., or the line of direct-appeal cases addressing unpreserved challenges to the lack of allo-cution, holding that these challenges are not jurisdictional but instead are exceptions to the preservation requirements this Court is ordinarily subject to, thus providing a definitive answer to the questions raised by the conflicting caselaw.

With all the above-discussed principles of law in mind, we conclude that because the record shows no sentencing hearing or any waiver of a sentencing hearing, and shows no allocution or a waiver of an allo-cution, we are compelled to reverse the sentence and remand this cause to the trial court for that court to resentence Banks. On remand the trial judge shall conduct a proper sentencing hearing in which a pre-sentence investigation is conducted and a proper allocution is provided. The trial court is directed to make a return to this Court showing compliance with these instructions within 49 days from the date of this opinion. The return to remand shall include a transcript of the sentencing hearing and a copy of the presentence investigation or other documents, if any, relied upon by the trial court in imposing sentence.

For the above-mentioned reasons, Banks’s conviction for first-degree robbery is due to be affirmed, his sentence is reversed, and the case remanded for resen-tencing.

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

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)


author: PER CURIAM. WELCH, Judge,

text:
    Craig Allen TURNER v. STATE of Alabama.
    CR-08-1647.
    Court of Criminal Appeals of Alabama.
    March 26, 2010.
    Rehearing Denied June 18, 2010.
    Craig Allen Turner, pro se.
    Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WISE, P.J., and WINDOM and MAIN, JJ., concur. WELCH, J., dissents, with opinion, which KELLUM, J., joins.

WELCH, Judge,

dissenting.

For the reasons that follow, I respectfully dissent from unpublished memorandum affirming the circuit court’s summary denial of Craig Allen Turner’s Rule 32, Ala. R.Crim. P., petition for postconviction relief. Turner’s petition challenged his April 2005 conviction for manufacturing a controlled substance and his sentence to 15 years’ imprisonment. Turner did not appeal.

The instant Rule 32 petition, Turner’s first, was deemed filed on April 3, 2009. In the petition, Turner claimed that the information filed by the district attorney on March 31, 2005, was not made under oath, and because the information was defective, the trial court did not have jurisdiction to accept his guilty plea. Turner submitted the March 31, 2005, information to the circuit court as an exhibit to his petition. The information, while signed by the district attorney, was not notarized.

On May 11, 2009, Turner filed a motion for an evidentiary hearing. On May 12, 2009, the State filed a motion to dismiss, asserting that Turner’s defective-information claim was nonjurisdictional pursuant to Ex parte Seymour, 946 So.2d 536 (Ala.2006), and Patton v. State, 964 So.2d 1247 (Ala.Crim.App.2007), and that Turner’s claim was barred under Rule 32.2(a)(3), (a)(5), and (c), Alai R.Crim. P. On June 2, 2009, Turner filed a responsive pleading in which he argued that because he was convicted before the ruling in Seymour was issued, Seymour should not be applied retroactively to his petition.

On July 10, 2009, the circuit court issued the following order denying the petition:

“The State’s Motion to Dismiss contains a review and response to Defendant’s Rule 32 petition and the Court finds the State’s motion to be fully supported by the facts of this cause. The Court has examined the above mentioned documents, the original court file, and the case action summary. Thereupon, the undersigned concludes that Defendant’s claims as set out in his petition should be summarily dismissed for those reasons enumerated by the State. Specifically, the Court finds:
“1 — that Defendant’s claim that the Court did not have subject matter jurisdiction over his case, although couched in jurisdictional terms is a nonjurisdictional claim, which is precluded by Rules 32.2(a)(3), (a)(5), and (c), Ala. R.Crim. P.
“Without limiting the generality of the foregoing conclusion, the Court notes that the State’s motion makes it abundantly clear that no material issue of fact or law exists which would entitle the Defendant to any relief under Rule 32 of the Alabama Rules of Criminal Procedure.”

(C. 30-31.)

On appeal, Turner reiterated the claims raised in his petition. The State argued that under Ex parte Seymour, 946 So.2d 536 (Ala.2006), and Patton v. State, 964 So.2d 1247 (Ala.Crim.App.2007), Turner’s claim was nonjurisdictional, and because it was not timely raised, it was procedurally barred. The majority, in an unpublished memorandum, relied on Seymour and Patton to affirm the circuit court’s denial of relief to Turner.

The issue presented by Turner — whether the trial court derived jurisdiction from an unverified information in a guilty-plea case — was not an issue addressed in Seymour, and Seymour does not control our resolution of this case. The issue was, however, squarely presented in Ex parte Looney, 797 So.2d 427 (Ala.2001). In Looney, the Alabama Supreme Court stated the issue: “Whether the trial court had subject-matter jurisdiction to accept his guilty plea, given that the district attorney had not signed under oath the information purporting to charge the offense.” 797 So.2d at 428. The Court held that the information was defective and that the defect was a jurisdictional error that nullified the conviction. The Court explained:

“Section 15-15-20.1(b), Ala.Code 1975, provides that once a defendant charged with a noncapital felony offense, in a criminal proceeding commenced by complaint, informs the court that he intends to plead guilty, the district attorney will file an ‘information [which] shall be made under oath of the district attorney or a witness, and shall accuse the defendant with the same specificity as required in an indictment of the offense or offenses for which the defendant is charged.’ (Emphasis added.)”

797 So.2d at 428.

The Court further explained that the word, “shall,” as it was used in the statute, was unambiguous and had to be accorded its natural, plain meaning, which was mandatory and compulsory. The Court held:

“[W]e conclude that the word ‘shall,’ as it is used in § 15-15-20.1, Ala.Code 1975, demands that the information be made under oath. The information submitted to the trial court at Looney’s plea hearing was signed by the district attorney. However, the record contains no evidence whatever to indicate that the information was given under oath. Therefore, because it does not comply with the mandatory requirements of the statute, the information is defective.
“Citing Johnston v. City of Irondale, 671 So.2d 777 (Ala.Crim.App.1995), the State argues that this defect was nonju-risdictional and that Looney therefore waived his right to object to it on appellate review, by not objecting to it at the trial level. A defendant can waive irregularities in a court’s obtaining jurisdiction over him. Ross v. State, 529 So.2d 1074, 1078 (Ala.Crim.App.1988) (quoting Sherrod v. State, 14 Ala.App. 57, 59-60, 71 So. 76, 78, rev’d on other grounds, 197 Ala. 286, 72 So. 540 (1916)). However, ‘ “a formal accusation by indictment, or information, or complaint,” ’ made in the manner prescribed by law and “supported by oath” ’ is a prerequisite to the trial court’s jurisdiction “and cannot be waived.”’ Id.; State v. Thomas, 550 So.2d 1067, 1070 (Ala.1989) (citing City of Dothan v. Holloway, 501 So.2d 1136, 1146 (Ala.1986) (Beatty, J., dissenting)).
“We conclude that because a sworn information is essential to confer on a trial court jurisdiction to accept a guilty plea, the district attorney’s failure to make the information under oath cannot be waived. Thus, Looney could raise this issue on appeal.
“Because the information is defective, the trial court did not have jurisdiction to accept the plea. ‘In the absence of an indictment or information upon which this prosecution should have begun, the trial court was without jurisdiction to render judgment.’ Ross v. State, supra, 529 So.2d at 1078 (citing Woodham v. State, 28 Ala.App. 62, 178 So. 464 (1938)). ‘Thus, the judgment was null and void and of no force and effect.’ Id.”

797 So.2d at 429. (Emphasis added.)

When the same issue was again presented in Patton v. State, 964 So.2d 1247 (Ala.Crim.App.2007), this Court determined that the Alabama Supreme Court had implicitly overruled Looney, and held that Patton’s claim — that the district court did not have jurisdiction to convict and sentence him because the informations filed by the prosecutor were not given under oath — was not jurisdictional based on its interpretation of Seymour. I believe that this interpretation of Seymour was too broad. For the reasons discussed below, I am convinced the holding of Seymour is far more limited than this Court originally interpreted it to be in Patton. For similar reasons, I also believe that this Court unnecessarily and incorrectly held that Looney was implicitly overruled by Seymour. Although I do not easily decide that it is necessary to overrule a case, I have, following lengthy analysis and deliberation, determined that this Court’s decision in Patton must be overruled. I also believe that Turner has presented a jurisdictional claim that should be addressed.

As for my determination that the holding in Seymour has been interpreted too broadly, I note that the issue actually decided by the Alabama Supreme Court in Seymour was clearly stated in the first two sentences of that opinion:

“The issue presented in this case is whether a conviction is void for lack of subject-matter jurisdiction because the indictment charging the offense omitted an element of the offense. We hold that it is not.”

946 So.2d at 536. The Court also stated, “We granted Seymour’s petition for the writ of certiorari to determine whether the failure to allege a culpable mental state in the indictment charging Seymour with the offense of shooting into an occupied dwelling divested the trial court of jurisdiction over that offense.” Id. at 537.

It is axiomatic that the holding in a case, the ratio decidendi, is established only by the decision’s application of a principle of law to the particular facts of the case. After explaining that the jurisdiction of a court is derived from the Constitution and statutes of Alabama, the Court in Seymour determined only that the omission from the indictment of an element of a charged offense did not deprive a court of subject-matter jurisdiction over the charge. The Court in Seymour expressly overruled Ash v. State, 843 So.2d 213, 216 (Ala.2002), which held, in relevant part, that an indictment is the source of a trial court’s jurisdiction, and Ex parte Lewis, 811 So.2d 485 (Ala.2001), which held that “[flailure to allege an essential element of the charged offense is a jurisdictional defect....” The Court also stated other cases like Lewis and Ash — cases held that a valid indictment was the source of the trial court’s jurisdiction — were overruled. Seymour addressed no defect in the indictment process other than the omission of an essential element of the charged offense.

The Court in Seymour was not confronted with deciding, for example, whether an indictment that was not preferred by the vote of 12 or more grand jurors was sufficient to confer subject-matter jurisdiction on the court. Such an indictment would not have been preferred in accordance with the Constitution of Alabama and the statutes governing the method by which defendants are charged with an offense by indictment. Nonetheless, Seymour has been cited for reasons far beyond its limited holding.

The following sweeping language from Seymour is often quoted:

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

946 So.2d at 539.

It appears that in the conclusion of its opinion in Seymour the Alabama Supreme Court exceeded the scope of the issue on which it had granted certiorari review, and overstated its own holding in the case. Although the issue in Seymour was whether a conviction was void for lack of subject-matter jurisdiction because the indictment failed to allege an element of the charged offense, the Court stated a much broader conclusion: “We hold that a circuit court has subject-matter jurisdiction over a felony prosecution, even if that prosecution is based on a defective indictment.” 946 So.2d at 539. That statement was far more expansive than was necessary to resolve the issue on which the Court had granted certiorari review and is, essentially, obiter dictum. “Because obiter dictum is, by definition, not essential to the judgment of the court which states the dictum, it is not the law of the case established by that judgment. Gray v. Reynolds, 553 So.2d 79, 81 (Ala.1989).” Ex parte Williams, 838 So.2d 1028, 1031 (Ala.2002).

The broad statements of dicta have led to misinterpretation and misapplication of the actual holding in Seymour, which was far more limited. Reading those broad statements, it is easy to lose sight of the narrow issue decided in Seymour, i.e., whether the omission in an indictment of an element of the charged offense deprives the court of subject-matter jurisdiction. In fact, this Court lost sight of that narrow holding when it decided Patton. Patton alleged in his Rule 32 petition that the district court had had no jurisdiction to accept his guilty pleas and to impose sentences against him because the informa-tions charging him were not given under oath. This Court relied on the overly broad interpretation of Seymour to hold that “any defect in the informations could not divest the district court of its power to accept the pleas.” Patton, 964 So.2d at 1250. Nothing in the holding in Seymour supports the conclusion that a defect in the presentation of the charging document, itself, is a nonjurisdictional, waivable defect. An information or indictment not signed under oath and not preferred in accord with the statutes and Constitution of Alabama precludes a trial court from pronouncing judgment against a defendant. Absent the signature of the district attorney or a witness under oath, it remains merely a piece of paper with the charge against the defendant written upon it. Thus, while Alabama’s trial courts derive their jurisdiction from the Alabama Constitution and the Code of Alabama and have the power to adjudicate cases, as the Alabama Supreme Court stated in Seymour, this power or jurisdiction can only be exercised through the filing of pleadings sufficient to invoke the power of the court to act.

An information or indictment not made under oath, therefore, does not comply with the mandatory requirements of the law and is insufficient to reach a trial court for adjudication. The question of subject-matter jurisdiction, of a court’s power to decide a case, does not become relevant until a charge is properly placed before the court in the manner prescribed by the relevant law. Therefore, questions regarding whether a charge was properly presented are not resolved by reference to the missing-element holding in Seymour. As the Alabama Supreme Court has recognized, “jurisdiction” is a broad term:

“Jurisdiction in personal actions depends upon two elements: The subject-matter to be adjudged; the presence in court of the parties whose rights are to be affected by the judgment. In respect of subject-matter the court acquires jurisdiction by the act of its creation; it is inherent in the constitution of the court. The other element it acquires by its own act, by its process properly issued and served, or by voluntary appearance of the defendant. Lamar v. Commissioners’ Court, 21 Ala. 772. ‘By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought.’ Cooper v. Reynolds, 10 Wall. 316, 19 L.Ed. 931.”

Wolff v. McGaugh, 175 Ala. 299, 57 So. 754, 755 (1911) (quoted in Seymour, 946 So.2d at 538). When the process necessary to initiate proceedings is defective, the resulting judgment is void; Seymour does not hold otherwise, and the Courts of this State have acknowledged this rule in post-Seymour cases.

In Ex parte Jenkins, 992 So.2d 1248 (Ala.2007), Jenkins filed two motions for sentence reconsideration pursuant to § 13A-5-9.1, Ala. Code 1975, see Kirby v. State, 899 So.2d 968 (Ala.2004) (“Kirby motion”), and he appealed from the denial of the second motion. Jenkins argued that because the first Kirby motion was ruled on by a judge other than the sentencing judge or the presiding judge of the circuit, the ruling on the first Kirby motion was void and the second motion was not prohibited by the rule against successive motions for sentence reconsideration. The Alabama Supreme Court held:

“Because § 18A-5-9.1 confers on a court continuing jurisdiction over a motion for sentence reconsideration, to be exercised by only the sentencing judge or the presiding judge, [the judge who ruled on the first motion], who was neither, did not have jurisdiction over Jenkins’s first motion for sentence reconsideration. Accordingly, the judgment purporting to deny that motion is a void judgment.”

Jenkins, 992 So.2d at 1250.

The State argued that the ruling on the first Kirby motion was not void but voidable, under the holding in Seymour. The Alabama Supreme Court disagreed and stated:

“In Seymour, we overruled a line of Alabama cases that recognized an indictment as the circuit court’s source of jurisdiction in a criminal case, holding that ‘a defect in the indictment could not divest the circuit court of its power to hear the case.’ Seymour, 946 So.2d at 538. Under our holding in Seymour, a defect in a criminal indictment no longer deprives the trial court of jurisdiction, as it had under the common law, but instead is a nonjurisdictional error that may be waived. The State argues that, because Jenkins failed to raise the improper denial of his 'first motion for sentence reconsideration in the trial court or on appeal, the error is waivable under Seymour, and the judgment denying his first Kirby motion is not void, but voidable.
“However, Seymour dealt with an area of the law rendered jurisdictional through a series of judicial decisions based in the common law. In the present case, jurisdiction over a motion for sentence reconsideration is conferred by the legislature in § 13A-5-9.1, as this Court recognized in Kirby and as the Court of Criminal Appeals held in Bulger [v. State, 904 So.2d 219 (Ala.Crim.App.2004)]. In Seymour, we stated:
“ ‘Jurisdiction is “[a] court’s power to decide a case or issue a decree.” Black’s Law Dictionary 867 (8th ed. 2004).... That power is derived from the Alabama Constitution and the Alabama Code. See United States v. Cotton, 535 U.S. 625, 630-31 (2002) (subject-matter jurisdiction refers to a court’s “statutory or constitutional power” to adjudicate a case).’
946 So.2d at 538. Indeed, the Alabama Constitution states that a circuit court ‘shall exercise general jurisdiction in all cases except as may otherwise be provided by law.’ Amend. No. 328, § 6.04(b), Ala. Const.1901 (§ 142, Official Recomp.).
“By enacting § 13A-5-9.1, the legislature conferred on the trial court continuing jurisdiction over motions for sentence reconsideration, to be exercised by only the sentencing judge or the presiding judge. As the State acknowledges, ‘[a] judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process.’ Smith v. Clark, 468 So.2d 138, 141 (Ala.1985). Because the judge who denied Jenkins’s first motion for sentence reconsideration was neither the sentencing judge nor the presiding judge, under § 13A-5-9.1 he was without jurisdiction to consider that motion, and the denial of that motion resulted in a void judgment.”

Jenkins, 992 So.2d at 1250. (Some emphasis added.)

The Alabama Supreme Court in Jenkins implicitly acknowledged that the holding in Seymour is limited — that it does not operate to validate a judgment from a proceeding over which the trial court had no jurisdiction to consider. It is that principle of law that governed the Alabama Supreme Court’s decision in Looney, and that principle was not overruled by Seymour. Moreover, as the Alabama Supreme Court noted in Looney, the procedure governing the acceptance of guilty pleas is designated by statute. The analysis applied by the Alabama Supreme Court in Jenkins regarding Kirby motions continues to apply in guilty-plea proceedings, and jurisdiction over a proceeding that is conferred by the legislature requires compliance with the mandatory procedures or any resulting judgment is void. Therefore, when this Court held in Patton that Patton’s claim regarding the district attorney’s failure to present informations signed under oath as required by § 15-15-21, Ala.Code 1975, might have raised a jurisdictional claim under Looney, if that case had not been abrogated by Seymour, I believe that this Court erred. Looney should have been applied in Patton, and Patton’s claim should have been addressed on the merits. Therefore, this Court’s decision in Patton should be overruled.

Furthermore, although the case predates Seymour, State v. Thomas, 550 So.2d 1067 (Ala.1989), is instructive. In Thomas, a juvenile court held Thomas in contempt of court for her failure to reveal the whereabouts of her son, who was suspected of committing delinquent acts. However, no delinquency petition had yet been filed with the juvenile court before Thomas was held in contempt. The Alabama Supreme Court agreed with this Court’s determination that the juvenile court had no jurisdiction over Thomas:

“The jurisdiction of the juvenile court would attach only after a petition had been properly filed with the intake officer, and the court had conducted a preliminary inquiry to determine whether the child was within the jurisdiction of the court....
“In the present case, the petitions charging [the son] with murder and arson were not ‘sworn out’ until after Mrs. Thomas had been found in contempt by the juvenile court and incarcerated. Because an action had not been properly commenced against Mrs. Thomas’s juvenile son, the juvenile court did not have the jurisdiction to hold Mrs. Thomas in contempt. If the proper petitions charging [the son] had been filed with the intake officer and the preliminary inquiry conducted to determine if [the son] was within the jurisdiction of the juvenile court, the court could have properly exercised its powers and held Mrs. Thomas in contempt.”

550 So.2d at 1072 (footnote omitted and some emphasis added).

Again, the principle of law applied in Thomas is the same one applied by the Alabama Supreme Court in Looney and in Jenkins: Unless a proceeding is properly initiated in accordance with the statute, constitution, or rule conferring jurisdiction over the proceeding, any judgment resulting from that proceeding is void.

The foregoing principle of law was not abrogated by the holding in Seymour, and under that principle, the court below erred when it affirmed the dismissal of Turner’s Rule 32 petition on procedural grounds. Turner’s claim that the information against him was not signed under oath implicated the jurisdiction of the court, and that claim should have been addressed on the merits. Therefore, I would reverse the judgment of the trial court and remand the cause for further proceedings.

Finally, I note that as the discussion of jurisdictional principles and caselaw above reveals, consistency and clarity regarding jurisdiction in criminal cases has often been lacking. I agree with Justice Stuart’s dissent in Ex parte Robey, 953 So.2d 363 (Ala.2006):

“The law in Alabama regarding a trial court’s personal and subject-matter jurisdiction over a criminal defendant is convoluted, and the definition of subject-matter jurisdiction, i.e., a trial court’s authority to render judgment and to impose sentence, is tortured with inaccuracy and confusion. This Court should seize the first opportunity to clarify the definition of a trial court’s subject-matter jurisdiction in a criminal case.”

953 So.2d at 365-66 (Stuart, J., dissenting). Justice Stuart dissented from the denial of the petition for a writ of certiorari because, she stated, “this petition presents an excellent opportunity to continue the clarification of the law on subject-matter jurisdiction that this Court began in Ex parte Seymour” 953 So.2d at 366. I likewise take this opportunity to encourage the Alabama Supreme Court to clarify the law on jurisdiction, and particularly to acknowledge that its holding in Seymour has been read far too broadly in cases in which it has been applied.

For all of the foregoing reasons, I would reverse the judgment of the circuit court and remand the cause for further proceedings.

KELLUM, J., concurs.

      . Turner and the State differ as to the precise date in April that Turner pleaded guilty and was convicted. However, the date is not pertinent to my dissent.

      . Section 13A-5-9.1, Ala.Code 1975, was amended effective June 14, 2007, to allow a ruling by the sentencing judge or, if the sen-fencing judge is no longer in office, by any circuit judge appointed by the presiding judge.