author: BRYAN, Judge.

text:
    COUNCIL OF the CITY OF PHENIX CITY et al. v. PHENIX CITY BOARD OF EDUCATION.
    2100346.
    Court of Civil Appeals of Alabama.
    Sept. 2, 2011.
    Certiorari Denied Oct. 7, 2011 Alabama Supreme Court 1101477.

      James P. Graham, Jr., of Graham Legal Firm, city atty., Phenix City; and Eric B. Funderburk of Funderburk <& Lane, Phe-nix City, for appellant.
    Sydney S. Smith of Smith & Smith, P.C., Phenix City, for appellee.
   BRYAN, Judge.

The Council of the City of Phenix City and its members, H.S. “Sonny” Coulter, Jimmy Wetzel, Max Wilkes, Michelle E. Walker, and Arthur Sumbry (collectively “the Council”), appeal from a permanent injunction entered in favor of the Phenix City Board of Education (“the Board”). We reverse and remand.

The Board is a city board of education authorized pursuant to § 16-11-1 et seq., Ala.Code 1975. The City of Phenix City (“the City”) has adopted a council-manager form of municipal government, pursuant to Act No. 71, Ala. Acts 1977. The Council appoints the members of the Board to serve five-year terms, with the term of one member expiring annually. § 16-11-3, Ala. Code 1975.

The Council formed a committee to investigate conduct of the Board. In October 2010, the committee sent the Board’s attorney a letter directing the Board and its superintendent, Dr. Larry DiChiria, to produce certain information and documents concerning the Board’s activities. The Board did not produce the requested information and documents. In November 2010, the committee issued a subpoena directing DiChiria to produce the information and documents that the committee had requested in the letter. In serving the subpoena, the committee relied on § 9.03 of the City’s charter, which is identical to § 9.03 of Act No. 71, Ala. Acts 1977. Section 9.03 grants subpoena power to any committee authorized by the Council or the city manager “to inquire into the conduct of any office, department, board or agency or officer of the City” or “to make investigations as to municipal affairs.”

The Board subsequently sued the Council, seeking a temporary restraining order, a preliminary injunction, and a permanent injunction to prevent the Council from compelling the Board to produce the requested information and documents. The trial court entered a temporary restraining order. On November 22, 2010, the trial court entered a permanent injunction enjoining the Council from subpoenaing the Board. The trial court concluded that § 9.03 did not grant the Council the authority to subpoena the Board. The Council appealed to the supreme court, and the supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

“‘To be entitled to a permanent injunction, a plaintiff must demonstrate success on the merits, a substantial threat of irreparable injury if the injunction is not granted, that the threatened injury to the plaintiff outweighs the harm the injunction may cause the defendant, and that granting the injunction will not disserve the public interest.’
“TFT, Inc. v. Warning Sys., Inc., 751 So.2d 1238, 1242 (Ala.1999), overruled on another point of law, Holiday Isle, LLC v. Adkins, 12 So.3d 1173 (Ala.2008). The entry of a permanent injunction is reviewed de novo, TFT, Inc., 751 So.2d at 1241....”

Sycamore Mgmt. Group, LLC v. Coosa Cable Co., 42 So.3d 90, 93 (Ala.2010).

On appeal, the Council argues that § 9.03 grants it the power to subpoena the Board in this case. Section 9.03 provides:

“Investigations by council or city manager. The council, the city manager, or any person or committee authorized by either of them, shall have power to inquire into the conduct of any office, department, board or agency or officer of the City and to make investigations as to municipal affairs, and for that purpose may subpoena witnesses, administer oaths, and compel the production of books, papers and other evidence. Failure to obey such subpoena or to produce books, papers or other evidence as ordered under the provisions of this section shall constitute a misdemeanor and shall be punishable by a fine not to exceed $100 or by imprisonment not to exceed six months, or both.”

The Council first argues that the members of the Board are “officers” of the City under § 9.03 and, therefore, that § 9.03 grants the Council subpoena power over the Board. In support of its argument, the Council cites Day v. Andrews, 279 Ala. 563, 188 So.2d 523 (1966), which concerned an attempt by a mayor and city council to remove members of a city board of education. In Day, our supreme court stated: “Members of a city board of education, after due appointment, are officers of the city and cannot be removed except for causes specified in [Article VII,] Section 173 of the Constitution of Alabama 1901....” 279 Ala. at 565, 188 So.2d at 526. See also Wright v. Cook, 216 Ala. 270, 271, 113 So. 252, 254 (1927) (stating that members of a town’s board of education “are officers of the town and cannot be removed from office except for the causes specified in [§ ] 173 of the Constitution”). Although the court in Day characterized members of a city board of education as officers of the city for purposes of impeachment under Art. VII, §§ 173-75, Ala. Const.1901, the court also stated:

“A reading of the entire provisions concerning the appointing and functioning of city boards of education shows beyond per adventure that the legislative purpose was to invest in boards of education, when duly and legally selected, the authority to act as free and independent agencies of the city in the operation of the city school systems, free of interference by the governing bodies which may have appointed the members.”

279 Ala. at 565,188 So.2d at 525-26.

In Enterprise City Board of Education v. Miller, 348 So.2d 782 (Ala.1977), our supreme court discussed how a city board of education should be characterized for purposes of determining immunity from tort actions. The supreme court stated:

“Like county school boards, [city boards of education] are agencies of the state, empowered to administer public education within the cities. As such, a city school board is not a subdivision or agency of the municipal government. Opinion of the Justices, 276 Ala. 239, 160 So.2d 648 (1964). A city school board’s relation to the city is analogous to a county school board’s relation to the county. State v. Brandon, 244 Ala. 62, 12 So.2d 319 (1943).”

348 So.2d at 783. See also Ex parte Phenix City Bd. of Educ., 67 So.3d 56 (Ala.2011) (stating that city boards of education are agencies of the State and, therefore, enjoy constitutional immunity from tort actions).

Thus, a city board of education is an “independent agenc[y],” Day, 279 Ala. at 565, 188 So.2d at 525, that is “not a subdivision or agency of the municipal government,” Miller, 348 So.2d at 783. Therefore, we conclude that the members of the Board are not officers of the City under § 9.03. Thus, § 9.03 does not grant the Council or its committee subpoena power over the Board on the ground that the Board members are officers of the City.

The Council also argues that § 9.03 authorizes the subpoena in this case because, the Council says, the subpoena concerns “municipal affairs” under § 9.03. Thus, we must determine whether the activities of the Board are “municipal affairs.” Act No. 71, Ala. Acts 1977, does not define the term “municipal affairs.” Black’s Law Dictionary 1042 (8th ed.2004) defines “municipal affairs” as “[t]he matters relating to the local government of a municipality.” One court interpreting a provision in a city charter granting a city council subpoena power with respect to “municipal affairs” has described the scope of those powers as “broad.” Frank v. Balog, 189 Misc. 1016, 1019, 73 N.Y.S.2d 285, 288 (Sup.Ct.1947).

In Board of Education of Union City v. Union City, 112 N.J.Super. 493, 271 A.2d 733 (Law Div.1970), the Superior Court of New Jersey addressed whether a city’s governing body could exercise subpoena power over the city’s board of education. The state law in that ease granted the power of subpoena to a committee of the city’s governing body to consider “any subject matter within its jurisdiction.” 112 N.J.Super. at 494, 271 A.2d at 733; See N.J. Stat. Ann. § 40:48-25. Similar to the situation in this case, the court in Union City first acknowledged “the autonomous character of the board of education in the management and conduct of the school system.” 112 N.J.Super. at 495, 271 A.2d at 734. However, the court then stated:

“[Tjhere are nevertheless certain areas of interdependence between the board [of education] and the governing body of the city.
“The Board of Education of Union City is ... appointed by the mayor of the city.... There is a Board of School Estimate, composed of two members of the Board of Education, two members of the governing body and the mayor, which passes on the school budget and fixes the amount of the necessary appropriation to be submitted to the governing body.... The governing body must appropriate the amount certified by the Board of School Estimate up to a maximum of 1 ½% of the assessed valuation of property in the municipality....
“In connection with capital projects, the Board of School Estimate also determines the amount necessary, and the governing body, subject to certain limitations, is required to appropriate the amount so certified either from its general funds or through the issuance of municipal bonds.... A bond issue for school purposes must be authorized by ordinance adopted by the board of commissioners of the city and, under certain circumstances, by the voters of the municipality.
“All moneys necessary for school purposes must be provided by the city through local taxation.
“As a consequence, there are sufficient areas of mutual relationship between the two bodies to demonstrate that the activities of the Board of Education of Union City, including cost, efficiency and performance of the school system, are a matter of legitimate interest to the governing body of the city so as to justify the inquiry by its investigating committee. See dissenting opinion in Botkin v. Mayor, etc., Westwood, 52 N.J.Super. 416, 437, 145 A.2d 618 (App.Div.1958); Hackensack Bd. of Education v. Hackensack, 6[3] NJ.Super. 560, 165 A.2d 33 (App.Div.1960). The rationale articulated in Board of Trustees of Free Public Library v. City of Union City, [112 N.J.Super. 484, 271 A.2d 728 (Ch.Div.1970) ] is equally applicable and dispositive of the plaintiffs’ contentions herein.
“The subject is manifestly within the jurisdiction of the governing body, in the sense of the latter’s legitimate interest in the business of the Board of Education for the purpose of performing its statutory functions vis-a-vis the school system. Consequently, the inquiry into the operation of the Board of Education is properly within the jurisdiction of the investigating committee, and the Board’s architect and employee, Lugosch, is subject to its subpoena.”

112 N.J.Super. at 495-96, 271 A.2d at 734.

Similarly, in this case, the Council appoints the members of the Board. § 16-11-3. Section 16-11-12, Ala.Code 1975, provides that “any action brought upon [a city board of education’s contracts] and for the recovery and protection of money and property belonging to and used by the public schools, or for damages, shall be brought by and in the name of the city.” That provision indicates “that city boards of education are closely related to the city governing body.” State ex rel. McQueen v. Brandon, 244 Ala. 62, 66, 12 So.2d 319, 322 (1943) (addressing Ala.Code 1940, Title 52, § 161, and Ala. School Code 1927, § 201, predecessors to § 16-11-12). If the income of a city board of education is insufficient, that board “shall petition the city council ... to call an election for the issuance of bonds on the credit of the city” to provide sufficient funding for the board’s schools. § 16-11-19. The Board’s verified complaint stated that, “for many years, previous ... Councils have given the [Board’s schools] appropriations from city funds to assist in the operation of the public school system.”

Furthermore, the record on appeal suggests that the Board and the Council have or had an agreement allowing the Board to use a stadium owned by the City. The record contains a proposed lease agreement concerning the stadium that was sent from the Board’s superintendent to a Council member. The Board’s previous use of the stadium is the subject of several of the Council’s requests for information and documents.

“Investigation in itself is an important and valuable tool for the functioning of government. In the absence of a clear showing of bad faith, such a power should be construed liberally to permit a broad scope of inquiry to achieve the legitimate ends of the investigation.” Board of Trustees of Free Public Library v. Union City, 112 N.J.Super. 484, 490, 271 A.2d 728, 731 (Ch.Div.1970). The Council has a legitimate interest in the activities of the Board. Although the Council and the Board are separate entities, they interrelate in several ways. Therefore, the Board’s activities are “municipal affairs” pursuant to § 9.03 and, thus, may properly be investigated by the Council under that section. Accordingly, we reverse the trial court’s judgment insofar as it permanently enjoined the Council from exercising its subpoena power over the Board.

The Council filed a motion to strike various parts of the Board’s brief on the grounds that those parts are either factually incorrect, unsupported by the record, or irrelevant to the issues on appeal. We deny the Council’s motion.

REVERSED AND REMANDED.

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

      . The complaint also sought to prevent the Council from attempting to remove members of the Board. In part, the permanent injunction entered by the trial court enjoined the Council from attempting to remove any member of the Board. That part of the injunction is not an issue on appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    M.B. CANTON COMPANY, INC. v. BOARD OF ADJUSTMENT OF the CITY OF MOBILE.
    2100301.
    Court of Civil Appeals of Alabama.
    Sept. 30, 2011.
    Jim H. Fernandez of Fernandez & Combs, L.L.C., Mobile, for appellant.
    John L. Lawler, Mobile, for appellee.
   PER CURIAM.

M.B. Canton Company, Inc. (“Canton”), appeals from a summary judgment of the Mobile Circuit Court in favor of the Board of Adjustment of the City of Mobile (“the Board”). We affirm.

Facts and Procedural History

Canton owns a parcel of real property that is next to a parcel of real property owned by Scott Callahan and Jacqui Callahan. One of the structures on the Callahan property was a pool house, which was also partially situated on the Canton property, pursuant to an easement. The pool house was classified under the Mobile zoning ordinance as a nonconforming structure because it did not meet the setback requirements of the ordinance. The pool house was damaged in Hurricane Katrina in August 2005. The Callahans sought to restore the pool house and entered into negotiations with the City of Mobile (“the City”) for a building permit. Canton responded to the Callahans’ efforts by filing a lawsuit in the Mobile Circuit Court, alleging that the Callahans’ easement for the pool house had been extinguished. After Canton filed its lawsuit, the City agreed to hold the permitting process for the restoration of the pool house in abeyance until after the lawsuit had concluded.

On October 17, 2008, the circuit court entered a judgment in favor of the Calla-hans, determining that the easement for the pool house had not been extinguished. The October 17, 2008, judgment also stated that,

“[i]f the [Callahans] desire to remedy the damage resulting from Hurricane Katrina, they shall promptly proceed with and complete the permitting process within 120 days. There was evidence at trial about the possible impact of new building codes, and [the Calla-hans] are authorized to update the pool/ guest house so as to comply with any new codes, provided that they do not materially alter the character of the easement. [The Callahans] shall under no circumstances cause the footprint of the pool/guest house to be increased; If necessary permits are obtained, [the Callahans] are to commence and complete the permitted work in a reasonable time, as opposed to deferring the work for any period of time. The foregoing time frames shall be automatically extended if there are post-judgment or appellate proceedings in this case, or if there is litigation over the permitting process, to the extent of any resulting delay that is not attributable to [the Callahans’] unwillingness to proceed as directed.”

Canton appealed the October 17, 2008, judgment to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975. This court affirmed the circuit court’s judgment, without an opinion. M.B. Canton Co. v. Callahan (No. 2080439, September 25, 2009), 58 So.3d 858 (Ala.Civ.App.2009) (table). Canton then petitioned our supreme court for the writ of certiorari, which that court denied on January 15, 2010.

Following the conclusion of Canton’s lawsuit, the Callahans renewed their application for a building permit with the City. The Callahans’ building-permit application included plans to increase the height of the pool house to comply with regulations promulgated by the Federal Emergency Management Agency (“FEMA”). On March 19, 2010, the City’s Urban Planning Department issued a building permit to the Callahans for the restoration of the pool house. Canton then appealed to the Board, challenging the Urban Planning Department’s decision to issue the building permit to the Callahans.

The Board held a hearing on Canton’s appeal, at which Canton was represented by counsel. The Callahans were also present at the hearing before the Board. At the hearing before the Board, Canton argued that the zoning ordinance requires that, in order to restore a nonconforming structure, the owner must apply for a building permit within one year of the occurrence of the damage and must complete construction within two years. Canton argued that the Callahans had not met those time requirements. Canton also argued that, although the zoning ordinance allows a party to apply to the Board for an extension of those deadlines, the Callahans had not applied to the Board for an extension under the zoning ordinance. Thus, Canton argued, the Callahans had abandoned the pool house and, consequently, the Urban Planning Department had erred in issuing the Callahans a building permit to restore the pool house. The Board upheld the issuance of the building permit to the Callahans. Canton appealed the decision of the Board to the circuit court for a trial de novo.

Canton moved the circuit court for a summary judgment in its favor. In its motion for a summary judgment, Canton argued that the Callahans had not met the requirements of the zoning ordinance because they failed to obtain a permit within one year of the date of the damage to the pool house and failed to complete construction within two years of that date. Canton also alleged that the Callahans failed to apply for an extension of the time deadlines in the zoning ordinance. Canton further argued that, because the Callahans failed to apply for an extension from the Board, any variance granted by the Board from the deadlines in the ordinance was error because, Canton argued, any hardship suffered by the Callahans was brought about by their own actions. Additionally, Canton argued that the zoning ordinance did not authorize the Board to issue a permit that would allow the Calla-hans to increase the height of pool house.

The Board responded to Canton’s motion for a summary judgment. and also moved the circuit court for a summary judgment in its favor. The Board argued that the delays in the permitting and construction of the pool house were due to the actions of Canton, not the inaction of the Callahans. The Board also argued that the Board had the authority to grant the Callahans a variance from the time requirements of the zoning ordinance. Finally, the Board argued that the increase in the height of the pool house was allowable under the zoning ordinance because, the Board said, it did not increase the nonconformity of the structure.

On August 25, 2010, the circuit court denied Canton’s motion for a summary judgment and entered a summary judgment in favor of the Board. Canton appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Standard of Review

“Our review of a summary judgment is de novo. ‘A motion for summary judgment is granted only when the evidence demonstrates that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c), Ala. R. Civ. P.’ Reichert v. City of Mobile, 776 So.2d 761, 764 (Ala.2000). We apply ‘the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact.’ Bussey v. John Deere Co., 5B1 So.2d 860, 862 (Ala.1988); System Dynamics Int’l, Inc. v. Boykin, 683 So.2d 419, 420 (Ala.1996). In order to defeat a properly supported motion for a summary judgment, the nonmoving party must present substantial evidence that creates a genuine issue of material fact. ‘Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Borders v. City of Huntsville, 875 So.2d 1168, 1176-77 (Ala.2003).

Analysis

On appeal, Canton argues that the Board did not comply with the City’s zoning ordinance when the Board approved the Callahans’ building permit. The zoning ordinance at issue in this case states:

“1. CONTINUANCE OF NONCONFORMING STRUCTURES. Except as herein provided, any nonconforming structure may be occupied and operated and maintained in a state of good repair.
“2. ENLARGEMENT OR EXTENSION OF NONCONFORMING STRUCTURES. A nonconforming structure in which a nonconforming use is operated may be enlarged or extended on land owned on the effective date of this ordinance or on the effective date of any amendment hereto by which the structure became a nonconforming structure; provided, however, that the enlargement or extension shall conform to the height, building site area, building site coverage, and yard requirements of the district in which it is located and to the off-street parking requirements and the off-street loading requirements of this ordinance.
“3. RESTORATION OF DAMAGED NONCONFORMING STRUCTURES. A nonconforming structure damaged in any manner and from any cause whatsoever may be restored, provided restoration is begun within one-year and completed within two-years of the date of the damage. The Board of Zoning Adjustment may grant an extension of the one-year or two-year period upon application and showing of hardship.”

Section VII(B), City of Mobile Zoning Ordinance.

Canton first argues that the circuit court erred in entering a summary judgment in favor of the Board because, Canton says, the Board’s decision to grant the Callahans a variance from the time requirements in the zoning ordinance was arbitrary. When a board of adjustment decides an appeal from a decision of a city permitting official, its powers are delineated in § 11-52-80, Ala.Code.1975, which provides, in pertinent part:

“(d) The board of adjustment shall have the following powers:
“(1) To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this article or of any ordinance adopted pursuant thereto;
“(2) To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance; and
“(3) To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done.
“(e) In exercising the powers mentioned in subsection (d) of this section, such board may, in conformity with the provisions of this article, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision, or determination as ought to be made and, to that end shall have all the powers of the officer from whom the appeal is taken. The concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision, or determination of any such administrative official or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance or to effect any variation in such ordinance.”

(Emphasis added.) Thus, by the plain language of § 11-52-80, the Board had the authority to approve a variance from the requirements of the zoning ordinance as part its review of the permitting official’s decision, provided that approving such a variance would alleviate unnecessary hardship, would fall within the spirit of the ordinance, and would result in substantial justice.

In spite of Canton’s vigorous protestations that allowing the Board to grant a variance from the requirements to obtain a permit within one year and to complete construction within two years was arbitrary, it is clear that the Board had evidence before it from which it could have determined that Canton’s actions in attempting to prevent the issuance of the building permit by filing a lawsuit against the Callahans in the circuit court, thereby forcing the City to hold the permitting process in abeyance, warranted a variance from the strict terms of the zoning ordinance requiring a party to meet certain time requirements for the permitting and restoration of a nonconforming structure or to file for an extension of those time requirements. Given the facts of this case, which clearly show Canton’s continual efforts to delay and block the issuance of the building permit, we see nothing arbitrary in the Board’s decision to grant the Calla-hans a variance from the time requirements in the zoning ordinance.

We also cannot agree with Canton that the failure to comply with the time requirements and extension procedure in the zoning ordinance was the fault of the Cal-lahans. As we noted above, the delay in the permitting process was the direct result of Canton’s lawsuit, not the result of any action taken or not taken by the Calla-hans. The Board also could have determined that, because the City had agreed with Canton to delay issuing the permit until after the resolution of its lawsuit, there was no need for the Callahans to file for an extension of time because that agreement implicitly served as a time extension.

Finally, Canton argues that the Board approved an impermissible expansion of the Callahans’ pool house. The Callahans increased the height of the pool house structure to comply with FEMA regulations, adding a second story to the structure. Canton argues that the zoning ordinance authorizes the pool house to be only restored, not expanded. In making its argument, Canton relies on the common definition of the word “restore.” However, one of the definitions quoted by Canton for the word “restore” is “to put or bring back into existence or use.” Merriam-Webster’s Collegiate Dictionary 1063 (11th ed.2003). In this case, in order to put or bring the pool house back into existence or use, its height must be increased to conform with current FEMA regulations. Because the pool house cannot be put or brought “back into existence or use” without complying with the FEMA regulations, it appears that the increase in the height of the pool house in order to comply with those regulations can be considered restoring the pool house.

Additionally, the pool house is a nonconforming structure because it does not meet the setback requirements for the zoning area in which it is located. The changes to the pool house will change only the height of the pool house, not its footprint. Canton provides no argument, and did not provide any evidence to the circuit court indicating, that the restored pool house would not comply with the height requirements for the zoning area in which it is located. Thus, the increase in the height of the pool house does not increase its nonconformity because it does not impact the footprint of the structure. See Ex parte City of Fairhope, 739 So.2d 35, 39 (Ala.1999). Therefore, we find no merit in Cantoris argument on this issue.

Conclusion

Because we discern no error in the circuit court’s entry of a summary judgment in favor of the Board, we affirm the judgment of the circuit court.

AFFIRMED.

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

      . When the pool house was built, the children of Kenneth Canton, the owner of Canton, owned both the Canton property and the Callahan property. Kenneth Canton directed the creation of the easement when his children sold what was to become the Callahan property to a third party. The Callahans purchased the Callahan property from that third party.

      . Kenneth Canton, the owner of Canton, was not present at the hearing.

      . We note that this result also conforms with the circuit court's judgment in Canton’s case against the Callahans, which permitted the Callahans "to update the [pool house] so as to comply with any new codes, provided that they do not materially alter the character of the easement” and provided that they do not enlarge the footprint of the pool house.


author: PER CURIAM. MOORE, Judge,

text:
    T.K. v. M.G.
    2091162.
    Court of Civil Appeals of Alabama.
    April 1, 2011.
    Rehearing Denied June 10, 2011.
    Lana K. Hawkins, Arab, for appellant.
    Submitted on appellant’s brief only.
   PER CURIAM.

T.K. (“the mother”) appeals from a judgment of the Marshall Juvenile Court (“the juvenile court”) declaring K.W. (“the child”) dependent and awarding custody of the child to M.G., the child’s father (“the father”).

The father, who was the noncustodial parent of the child, filed a dependency petition on November 17, 2009, alleging that the mother, the custodial parent, was unable to discharge her parental responsibilities to and for the child because of her use of illegal drugs, her inadequate finances, and her inability to properly care for the child. The father also sought an award of custody of the child and child support. Along with his dependency petition, the father filed a motion requesting that he be awarded custody of the child based on emergency circumstances. The juvenile court granted the father’s motion for an award of emergency custody of the child.

On December 1, 2009, the juvenile court entered an order adopting an agreement between the mother and the father pursuant to which the father was awarded pen-dente lite custody of the child and the mother was awarded visitation rights; that order also contained a requirement that the father, the mother, and the mother’s current husband enroll in the Marshall County Family Drug Court program. The pendente lite custody order was subsequently amended on May 3, 2010, to provide that the mother’s visitation with the child be supervised. The juvenile court scheduled the matter for a hearing on August 4, 2010, and on May 20, 2010, it entered an order reflecting the terms of the parties’ agreement regarding the mother’s summer visitation with the child.

On August 3, 2010, the day before the scheduled dependency hearing, the father filed an “amended petition for custody” in which, in addition to the relief sought in his original dependency petition, he sought an order requiring the mother to pay a portion of the child’s medical expenses and his attorney fee in this matter. The mother moved to strike or dismiss that amended petition, and the juvenile court granted that motion after concluding that it was untimely filed. Accordingly, the August 4, 2010, hearing proceeded on the father’s original dependency petition.

On the date of the dependency hearing, the mother filed a motion to dismiss the father’s dependency petition, arguing that the juvenile court lacked subject-matter jurisdiction over the matter. The juvenile court did not rule on that motion before conducting the evidentiary hearing. Following the dependency hearing, the juvenile court entered a judgment on August 5, 2010, in which it, among other things, found by clear and convincing evidence that the child was dependent, awarded the parties joint legal custody of the child, awarded the father primary physical custody of the child, and awarded the mother visitation.

The mother filed a postjudgment motion in which she argued that the juvenile court lacked subject-matter jurisdiction and that her due-process rights had been violated. The juvenile court denied the post-judgment motion, specifically finding that it had subject-matter jurisdiction over the action. The mother then timely appealed to this court.

On appeal, the mother argues that the juvenile court’s final judgment is void for lack of subject-matter jurisdiction. The mother contends that, although the father’s petition purported to invoke the dependency jurisdiction of the juvenile court, the action is actually in the nature of a custody dispute between the parents and is not a dependency action. The mother contends that the juvenile court therefore erred as a matter of law in concluding that it had subject-matter jurisdiction over the father’s action. We review the legal question of subject-matter jurisdiction de novo. Hill v. Hill, [Ms. 2090130, Dec. 3, 2010] — So.3d -, - (Ala.Civ.App.2010).

Section 12-15-114(a), Ala.Code 1975, a part of the Alabama Juvenile Justice Act (“the AJJA”), § 12-15-101 et seq., Ala. Code 1975, provides, in pertinent part:

“A juvenile court shall exercise exclusive original jurisdiction of juvenile court proceedings in which a child is alleged to have committed a delinquent act, to be dependent, or to be in need of supervision. A dependency action shall not include a custody dispute between parents.”

In her brief submitted to this court, the mother cites Ex parte T.C., 63 So.3d 627, 631 (Ala.Civ.App.2010), in support of her argument. In that ease, a mother sought to modify a 2006 custody judgment entered by a juvenile court. The children at issue had not previously been declared dependent, delinquent, or in need of supervision. This court dismissed the mother’s appeal, concluding that the juvenile court lacked subject-matter jurisdiction over the mother’s custody-modification action. The court explained that under the AJJA, which was effective starting January 1, 2009, a dependency action did not include a custody dispute between parents, see § 12-15-114, Ala.Code 1975, and that the juvenile court’s continuing jurisdiction over custody matters applies only to a child who has been determined to be dependent, delinquent, or in need of supervision. Ex parte T.C., supra. See also § 12-15-117(a), Ala.Code 1975 (the juvenile court maintains continuing jurisdiction over a dependent or delinquent child or a child in need of supervision); R.T. v. B.N.H., 66 So.3d 807, 811 (Ala.Civ.App.2011) (the juvenile court did not have jurisdiction under the AJJA to modify the original custody judgment that was entered as part of a paternity action); K.C. v. R.L.P., 67 So.3d 94, 96 (Ala.Civ.App.2011) (“Because the child has never been found dependent, and because the present [custody] action was filed after January 1, 2009, it could only have been properly filed in the circuit court [and not in the juvenile court].”); and Ex parte L.N.K., 64 So.3d 656, 658 (Ala.Civ.App.2010) (“[A] juvenile court no longer has continuing jurisdiction over a child based solely on its having made a prior paternity determination.”).

The mother argues that this case, like Ex parte T.C., supra, is a custody dispute. However, in his dependency petition, the father alleged that the mother was using illegal drugs in the presence of the child and that the mother was failing to properly care for the child. The allegations in the father’s petition were sufficient to invoke the dependency jurisdiction of the juvenile court. See § 12-15-102(8), Ala.Code 1975 (defining “dependent child”); and § 12-15-114(a), Ala.Code 1975. See also B.R.G. v. G.L.M., 57 So.3d 137, 140 n. 3 (Ala.Civ.App.2010) (the father’s allegations that the mother had abused the child and had failed to provide supervision were sufficient to invoke the dependency jurisdiction of the juvenile court and “squarely present[ed] the juvenile court with the question whether the child [was] dependent”); and L.L.M. v. S.F., 919 So.2d 307 (Ala.Civ.App.2005) (the allegations contained in the dependency petitions filed by the father and the grandparents were sufficient to invoke the dependency jurisdiction of the juvenile court).

“Once the dependency jurisdiction of a juvenile court has been properly invoked, the juvenile court has an imperative statutory duty -to conduct an evidentiary hearing to determine the dependency of the child.” K.C.G. v. S.J.R., 46 So.3d 499, 501 (Ala.Civ.App.2010). In this case, the child was alleged to have been dependent as a result of the conduct of his custodial parent; in essence, the father alleged that the child was one “[w]hose parent, legal guardian, legal custodian, or other custodian is unable or unwilling to discharge ... her responsibilities to and for the child.” § 12-15-102(8)(a).6„ Ala.Code 1975. The juvenile court, properly exercising its dependency jurisdiction, conducted an evi-dentiary hearing, and it then entered a judgment finding the child to be dependent and awarding custody to the father. Among its factual findings in that judgment, the juvenile court noted the mother’s long history of drug abuse, her recent relapse using crystal methamphetamine, her recent suicide attempt, and her marriage to a man under indictment for manufacturing illegal drugs.

The mother is correct that, in some cases, this court has concluded that the dispute at issue was more in the nature of a custody dispute than a dependency action. See, e.g., S.D.F. v. A.K., 875 So.2d 326, 328-29 (Ala.Civ.App.2003); S.G. v. P.C., 853 So.2d 246 (Ala.Civ.App.2002); B.S.L. v. S.E., 826 So.2d 890 (Ala.Civ.App. 2002); and C.L.C. v. J.D.A., 690 So.2d 365 (Ala.Civ.App.1996). However, this court has also upheld judgments similar to the one at issue in this appeal, i.e., judgments in which a parent is awarded custody of a dependent child. See G.H. v. Cleburne County Dep’t of Human Res., 62 So.3d 540 (Ala.Civ.App.2010) (Cleburne County DHR filed petitions alleging the dependency of the children, and the juvenile court entered a judgment finding the children dependent and awarding custody of them to the father); J.J. v. J.H.W., 27 So.3d 519 (Ala.Civ.App.2008) (affirming an award of custody of a dependent child to the child’s father); and L.L.M. v. S.F., 919 So.2d 307 (Ala.Civ.App.2005) (affirming an award of custody of a dependent child to the father).

Given the foregoing, we cannot say that, as a matter of law, a child cannot be deemed dependent when a fit parent is willing and able to care for the child. The allegations in the father’s pleading, motions, and affidavit, if supported by evidence, would tend to support the dependency determination. The mother has not challenged on appeal the evidentiary support for the juvenile court’s dependency determination.

Even if the mother had asserted in her appellate brief an argument regarding the sufficiency of the evidence supporting the juvenile court’s dependency judgment, this court could not address that argument. The mother did not include in the record on appeal a copy of the transcript of the dependency hearing. See Goree v. Shirley, 765 So.2d 661, 662 (Ala.Civ.App.2000) (it was the responsibility of mother, as the appellant, to include sufficient information in record to warrant a reversal); and State ex rel. Gibson v. Gibson, 555 So.2d 1092, 1092-92 (Ala.Civ.App.1989) (same). Therefore, the evidence pertaining to the facts, procedure, and history of this case that was presented to the juvenile court is not available for this court’s review, and this court must presume that the evidence omitted from the record was sufficient to support the juvenile court’s judgment. J.B. v. Cleburne County Dep’t of Human Res., 992 So.2d 34, 40 (Ala.Civ. App.2008).

We hold that the mother has failed to demonstrate on appeal that the juvenile court lacked jurisdiction over this matter. Accordingly, we pretermit a discussion of the due-process argument raised by the mother, because that argument was predicated on her contention that the juvenile court lacked subject-matter jurisdiction.

The mother’s request for an attorney fee on appeal is denied.

AFFIRMED.

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

MOORE, J., dissents, with writing.

MOORE, Judge,

dissenting.

On appeal, T.K. (“the mother”) argues that the juvenile court’s final judgment is void for lack of subject-matter jurisdiction. The mother contends that, although the petition filed by M.G. (“the father”) purported to invoke the dependency jurisdiction of the juvenile court, it actually set out a custody dispute between the parents, which is not a dependency action. The mother contends that the juvenile court therefore erred as a matter of law in holding that it had subject-matter jurisdiction over the action and in denying her motion to dismiss and her motion to vacate the judgment. I agree.

Because juvenile courts are not courts created by the Alabama Constitution, juvenile courts derive their jurisdiction solely from statute, and that jurisdiction cannot be extended beyond the terms of the empowering statute. See Ex parte K.L.P., 868 So.2d 454, 456 (Ala.Civ.App.2003). Section 12-15-114, Ala.Code 1975, a part of the new Alabama Juvenile Justice Act (“the new AJJA”), § 12-15-1 et seq., Ala. Code 1975, sets forth the original jurisdiction of juvenile courts and provides, in pertinent part:

“A juvenile court shall exercise exclusive original jurisdiction of juvenile court proceedings in which a child is alleged to have committed a delinquent act, to be dependent, or to be in need of supervision. A dependency action shall not include a custody dispute between parents.”

§ 12-15-114(a), Ala.Code 1975 (emphasis added). Heretofore, neither this court nor our supreme court has construed the meaning of the language used in § 12-15-114(a).

As I read it, the first sentence states, generally, that a juvenile court shall have jurisdiction over proceedings in which a petition has been filed alleging the dependency of a child. However, the second sentence provides that the juvenile court shall not consider a “custody dispute between parents” to be “[a] dependency action.” The phrase “custody dispute between parents” refers to a legal contest pitting one parent against another for the custody, or some aspect thereof, of a minor child or children. Therefore, by its plain and unambiguous language, see City of Bessemer v. McClain, 957 So.2d 1061, 1074 (Ala.2006) (requiring courts to give effect to the plain language of a statute), the second sentence of § 12-15-114(a) excludes the possibility that a juvenile court could exercise dependency jurisdiction over a contest solely between two parents as to the custody of one or more of their children. In effect, the second sentence of § 12-15-114(a) creates an exception to the first sentence by declaring that a custody dispute between parents, even if cast in the form of a dependency petition, will not invoke the jurisdiction of the juvenile court.

My reading would be consistent with the other changes wrought by the enactment of the new AJJA. Under former law, the term “dependent child” included a child “[w]hose custody is the subject of controversy.” See former § 12-15-1(10)c., Aa. Code 1975; see also Title 62, § 311, Aa. Code 1940 (Recomp.1958). At one time, that language had been interpreted as bringing custody disputes between parents within the dependency jurisdiction of juvenile courts. See Hajovsky v. Hajovsky, 276 Aa. 77, 159 So.2d 194 (1963). The new AJJA repealed that part of the definition of “dependent child,” see § 12-15-102(8)a., Aa.Code 1975, reinforcing the conclusion that the dependency jurisdiction of Aabama’s juvenile courts no longer extends to custody disputes between parents.

Moreover, the new AJJA defines a “dependent child” to include a child who “is in need of care or supervision” and “[w]ho is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child.” § 12-15-102(8)a.2„ Aa.Code 1975. In considering the significance of that definition, Justice Murdock recently explained that

“dependency is a status created by law that either is true of a child or is not. That is, either a child is dependent or it is not. A child cannot be dependent visa-vis one parent but not dependent as to the other parent. If the child is not dependent ‘as to one parent/ then the child is not dependent.”

Ex parte W.E., 64 So.3d 637, 638 (Ala.2010) (Murdock, J., concurring specially). Like Justice Murdock, I believe from the language employed in the new AJJA that the legislature intended that a child cannot be considered dependent if one of the child’s parents is able to provide adequate care of the child. Hence, any petition filed by a noncustodial parent asserting his or her fitness to exercise custody over the subject child cannot possibly invoke the dependency jurisdiction of the juvenile court regardless of an allegation that the conduct of the custodial parent endangers the child.

I further note that, under former law, this court often pierced the form of the pleadings to hold that “dependency petitions” actually presented a custody dispute between parents that should be decided according to custody, as opposed to dependency, principles. See Jones v. Webb, 524 So.2d 374, 375 (Ala.Civ.App.1988); C.L.C. v. J.D.A., 690 So.2d 365 (Ala.Civ.App.1996); B.S.L. v. S.E., 826 So.2d 890 (Ala.Civ.App.2002); S.G. v. P.C., 853 So.2d 246 (Aa.Civ.App.2002); and S.D.F. v. A.K., 875 So.2d 326, 328-29 (Ala.Civ.App.2003). See also N.G. v. L.A., 790 So.2d 262, 267 (Ala.Civ.App.2000) (“When a case is more in the nature of a custody case than a determination-of-dependency case, and the trial court relies on the juvenile-dependency statute to adjudicate the child dependent and award custody to a nonparent, that ruling will not stand.”). By declaring in § 12-15-114(a) that a dependency action shall not include a custody dispute between parents, the legislature obviously intended to strengthen that line of caselaw. Now, not only is a custody dispute between parents declared not to be a dependency action, but the legislature has further clarified that such a dispute can no longer be decided by juvenile courts because the dispute lies outside their jurisdiction.

Taken altogether, the changes in the new AJJA indicate an obvious legislative intent that a noncustodial parent cannot invoke the dependency jurisdiction of a juvenile court by simply casting his or her custody claim in the form of a dependency petition. In failing to give effect to that intent, the main opinion relies on cases either decided under former law, see, e.g., L.L.M. v. S.F., 919 So.2d 307 (Ala.Civ.App.2005), or cases in which third parties had filed a dependency petition, see, e.g., B.R.G. v. G.L.M., 57 So.3d 137, 140-41 (Ala.Civ.App.2010). Those cases have no bearing on the issue presently before the court, i.e., whether, based on § 12-15-114(a), a juvenile court, pursuant to its dependency jurisdiction, currently has jurisdiction to decide a custody dispute solely between parents.

Furthermore, I cannot concur that the legislature intended that some custody disputes between parents will fall within the dependency jurisdiction of the juvenile courts based on the nature of the factual allegations asserted in the complaint. If that is true, then juvenile-court intake officers and juvenile-court judges would bear the responsibility of ferreting out those custody disputes between parents that are within, and those custody disputes between parents that are outside, the dependency jurisdiction of the juvenile courts. The legislature plainly intended to avoid such a guessing game by, in effect, declaring in the second sentence of § 12-15-114(a) that no custody dispute between parents can ever be characterized as a dependency action. The legislature obviously intended that the valuable judicial resources of a juvenile court should not be wasted in undertaking to determine whether it had jurisdiction over such disputes, much less by adjudicating them. The majority’s reasoning totally subverts that purpose.

By enacting § 12-15-114(a), the legislature has declared that any custody dispute between parents lies outside the dependency jurisdiction of the juvenile courts. Based on the language employed in § 12-15-114(a), the history leading up to the adoption of § 12-15-114(a), and the changes made by the legislature to the former Alabama Juvenile Justice Act, former § 12-15-1 et seq., Ala.Code 1975, I conclude that the legislature intended that a noncustodial parent cannot invoke the dependency jurisdiction of a juvenile court by filing a petition naming the custodial parent as a defendant, asserting the dependency of the child, and requesting a transfer of the custody of the child to the noncustodial parent.

“Once the dependency jurisdiction of a juvenile court has been properly invoked, the juvenile court has an imperative statutory duty to conduct an evidentiary hearing to determine the dependency of the child.” K.C.G. v. S.J.R., 46 So.3d 499, 501 (Ala.Civ.App.2010). In this case, the father did not properly invoke the dependency jurisdiction of the juvenile court when he filed his petition. The juvenile court therefore had no duty to adjudicate the father’s petition, and it acted without subject-matter jurisdiction in so doing. A judgment entered without subject-matter jurisdiction is void and will not support an appeal. Ex parte Thomas, 54 So.3d 356, 362 (Ala.2010). Thus, without considering the other issues raised by the mother, I would dismiss this appeal, albeit with instructions to the juvenile court to vacate its final judgment.

      . In his affidavit submitted in support of his dependency petition, the father alleged, among other things, the following specific facts:
      "About two weeks ago, I found out [the mother] was in the hospital.... I later found out last Wednesday ... that [the mother] was in the hospital because she was high and thought aliens were coming to kill her.
      "... On Friday, November, 13, 2009, I went to pick [the child] up at school as I always do on my weekend. While there [the mother] and [the mother's husband] showed up and caused a scene and the police were called. When the police arrived the[y] both left immediately. While at the school, [the mother's husband] admitted to me that [the mother] had been taking drugs....
      "I have since learned that [the mother] has several DUI’s and was supposed to be in in-patient treatment for her drug problems. Her husband was also indicted by the Grand Jury in April 2009 for Unlawful Manufacturing....”

      . In that emergency motion, the father alleged:
      "1. That a Petition for a Determination of Dependency has been filed in this case.
      "2. That the mother and [the mother's husband] are unable to provide a safe and stable home for the child in that the mother has drug and alcohol addiction and has been arrested for felony [driving under the influence] and recently hospitalized due to her drug addiction and the [mother’s husband] has been indicted for unlawful manufacturing a controlled substance.
      “3. That the mother can no longer take care of the child in that the mother is believed to be taking illegal drugs to include crystal meth and is believed to have the child exposed to drug users and dealers.
      “4. That there exits a real and present danger to the child in that the mother is no longer willing to care for the child due to her continued drug use.
      "5. That it is in the best interest of the child to be placed in the temporary custody of the [father] pending a final hearing.”

      . The juvenile court also acknowledged that the mother had made recent improvements in her circumstances, including divorcing her husband, enrolling in a drug-treatment program, attending church, and maintaining a job.

      . I note that the mother does not contest the jurisdiction of the juvenile court to enter the ex parte order granting the father temporary custody of the child in response to his emergency motion. Hence, I do not express any opinion on that point, except to say that any emergency jurisdiction exercised by the juvenile court ends once the emergency subsides and that a juvenile court cannot rely on that jurisdiction to resolve a dispute between parents regarding the "permanent” custody of their child. See R.T. v. B.N.H., 66 So.3d 807, 811 (Ala.Civ.App.2011).


author: BOLIN, Justice. MURDOCK, Justice

text:
    Ex parte T.K. (In re T.K. v. M.G.).
    1101109.
    Supreme Court of Alabama.
    Oct. 14, 2011.
    Lana K. Hawkins, Arab, for petitioner.
    Submitted on petitioner’s brief only.
   BOLIN, Justice.

WRIT QUASHED. NO OPINION.

WOODALL, SHAW, and MAIN, JJ., concur.

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

This Court granted the petition for cer-tiorari review in this case to consider the issue whether the dispute presented was merely a custody dispute between two parents, as to which the juvenile court would not have had jurisdiction, or, in fact, was a dependency proceeding, as to which the juvenile court would have had jurisdiction. See Ala.Code 1975, § 12-15-114(a) (“A dependency action shall not include a custody dispute between parents.”); § 12-15-102(8)a.2. (defining a “dependent child” as a child “[w]ho is without a parent ... willing and able to provide for the care, support, or education of the child.” (emphasis added)); and T.K. v. M.G., 82 So.3d 1, 6 (Ala.Civ.App.2011) (Moore, J., dissenting). Of particular relevance to this case is the fact that

“dependency is a status created by law that either is true of a child or is not. That is, either a child is dependent or it is not. A child cannot be dependent visa-vis one parent but not dependent as to the other parent. If the child is not dependent ‘as to one parent,’ then the child is not dependent.”

Ex parte W.E., 64 So.3d 637, 638 (Ala.2010) (Murdock, J., concurring specially).

The concerns expressed by Judge Moore in his dissenting opinion below are critical concerns that need to be addressed by this Court. Nonetheless, I concur in quashing the writ in this case. Although (a) Rule 89(g)(1), Ala. RApp. P., allows a petitioner to rely on the argument made in the petition to this Court rather than filing a separate brief, and (b) questions of subject-matter jurisdiction are presented, we are hampered in our attempt to address those questions by the fact that neither party has provided this Court with a brief and the fact that the petition provides only general principles of law without attempting to apply those principles to the particular facts of this case. Ultimately, however, this Court is not able to undertake, itself, the task of applying those principles to the facts of this case and addressing the questions presented because the record does not contain a transcript of the final eviden-tiary hearing in the trial court that resulted in the finding of “dependency.”


author: BURKE, Judge. KELLUM, Judge,

text:
    Arthur David AHMED v. STATE of Alabama.
    CR-10-1032.
    Court of Criminal Appeals of Alabama.
    July 29, 2011.
    Rehearing Denied Sept. 23, 2011.
    Arthur David Ahmed, pro se.
    Luther Strange, atty. gen., and Robin D. Scales, asst. atty. gen., for appellee.
   BURKE, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

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

KELLUM, Judge,

concurring specially.

I write specially to note that this action appears to be Arthur David Ahmed’s fifth Rule 32, Ala. R.Crim. P., petition challenging his 1999 conviction for murder and his resulting sentence of life imprisonment without the possibility of parole. I believe that allowing Ahmed 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 Ahmed and other similarly situated inmates. See Ex parte Thompson, 38 So.3d 119 (Ala.Crim.App.2009).


author: JOINER, Judge.

text:
    Steven Lyle LAY v. STATE of Alabama.
    CR-08-2011.
    Court of Criminal Appeals of Alabama.
    Sept. 30, 2011.

      Deborah Queen Harding, Montgomery, for appellant.
    Troy King and Luther Strange, attys. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
   JOINER, Judge.

Steven Lyle Lay appeals the circuit court’s summary denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P. The petition challenged his 2001 convictions for two counts of third-degree robbery, violations of § 13A-8-43, Ala.Code 1975, and one count of unlawful possession of a controlled substance, a violation of § 13A-12-212, Ala. Code 1975, and the resulting concurrent sentences, as an habitual offender, of life imprisonment for each of the robbery convictions and 15 years’ imprisonment for the possession-of-a-controlled-substance conviction. The convictions resulted from guilty pleas entered by Lay pursuant to plea agreements with the State, in which Lay agreed to waive all jail credit in exchange for the State’s reducing the charges against him from first-degree robbery to third-degree robbery. See § 15-18-5, Ala.Code 1975. Lay did not file a direct appeal of his convictions and sentences. Lay filed two previous petitions for postconviction relief.

Lay’s present Rule 32 petition, his third, was deemed filed on July 30, 2009. Lay filed the standard Rule 32 form found in the appendix to Rule 32 and attached a supplement setting out his detailed claim. In his supplement to the petition, Lay claimed that his plea agreements were illegal and therefore void. Lay specifically argued that credit for time incarcerated pending trial under § 15-18-5, Ala.Code 1975, is mandatory and cannot be waived as part of a plea agreement.

On August 31, 2009, the State responded and moved to dismiss Lay’s Rule 32 petition, arguing that pursuant to Rule 32.7(d), Ala. R.Crim. P., Lay was not entitled to relief because he failed to state a claim. The State, in its response, however, also appeared to address the substantive merits of the claim by providing examples of constitutional, statutory, and procedural rights that can and cannot be waived and alleged that “the negotiated plea agreement between the petitioner, the trial counsel and the state prosecutor to waive jail credit was not illegal; did not violate public policy; and the sentencing court had jurisdiction to accept the plea and impose sentence.” (C. 27.) (footnote omitted). Lay filed a motion on September 3, 2009, requesting an evidentiary hearing. That same day, the circuit court issued an order dismissing Lay’s postconviction petition on the ground that it failed to state a claim upon which relief could be granted.

On appeal, Lay reiterates his claim that the circuit court was without jurisdiction to accept his guilty pleas, to render judgments, or to impose sentences because, he says, pursuant to § 15-18-5, Ala. Code, the circuit court was required to credit him for pretrial confinement, even though he agreed to forfeit jail credit pursuant to his plea agreements with the State. The State responds that Lay’s claim was not jurisdictional because, it says, jail credit does not implicate the jurisdiction of the court and it can be waived pursuant to a negotiated plea agreement.

A circuit court may summarily dismiss a petitioner’s Rule 32 petition pursuant to Rule 32.7(d), Ala. R.Crim. P.,

“[i]f the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition.”

“ ‘[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, the court’s review in a Rule 32 proceeding is de novo. Ex parte White, 792 So.2d 1097, 1098 (Ala.2001).’” Ex parte Clemons, 55 So.3d 348, 350 (Ala.2007). “The interpretation of a statute presents a question of law; consequently, our review is de novo. Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala.2003).” Ex parte Quick, 23 So.3d 67, 70 (Ala.2009).

Lay’s claim presents a question of first impression in Alabama: whether a criminal defendant may waive jail credit imposed pursuant to § 15-18-5, Ala.Code 1975, as a part of a plea agreement. For the reasons stated below, we conclude that a criminal defendant may waive jail credit as part of a negotiated plea agreement. Thus, the denial of Lay’s petition was proper.

In Alabama, there is no constitutional right to jail credit for pretrial confinement. Entitlement to jail credit is purely a statutory right. Section 15-18-5, Ala.Code 1975, provides:

“Upon conviction and imprisonment for any felony or misdemeanor, the sentencing court shall order that the convicted person be credited with all of his actual time spent incarcerated pending trial for such offense. The actual time spent incarcerated pending trial shall be certified by the circuit clerk or district clerk on forms to be prescribed by the Board of Corrections.”

See also Rule 26.9(b)(2), Ala. R.Crim. P. (providing that the trial court “[s]hall state that a credit will be allowed on the sentence, as provided by law, for time during which the defendant has been incarcerated on the present charge”). The standard to uphold a waiver of a statutory right is a lesser standard than the standard required to uphold a waiver of a constitutional right. See Ex parte Dunn, 514 So.2d 1300 (Ala.1987); Watson v. State, 808 So.2d 77 (Ala.Crim.App.2001); Turner v. State, 924 So.2d 737, 782 (Ala.Crim.App.2002). See also Belisle v. State, 11 So.3d 256, 317 (Ala.Crim.App.2007).

“Applying well-settled rules, [the Alabama Supreme] Court has stated that if the language of a statute is clear then there is no room for judicial construction of the statute and the clearly expressed intent of the legislature must be given effect. Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa County, 589 So.2d 687 (Ala.1991).”

Ex parte Nixon, 729 So.2d 277, 278 (Ala. 1998). In the absence of clear legislative intent to the contrary, the word “shall” is to be afforded a mandatory connotation when it appears in a statute. Ex parte Brasher, 555 So.2d 192, 195 (Ala.1989) (citing Prince v. Hunter, 388 So.2d 546, 548 (Ala.1980)). See Pierson v. State, 677 So.2d 246 (Ala.1995). It does not follow, however, that the use of the word “shall” always signals, in all postures, that the legislature intended for noncompliance with a mandatory provision to be fatal. See, e.g., Ex parte Nixon, 729 So.2d at 278 (holding that, although the provision of Administrative Procedure Act declaring that a final order “shall” be rendered within 30 days of the hearing is mandatory, a violation of that provision does not deprive the hearing officer of jurisdiction).

We recognize that both the Alabama Supreme Court and this Court have held, in cases where a writ of habeas corpus has been filed challenging the calculation of an inmate’s term of imprisonment, that the plain language of § 15-18-5 requires that the actual time an accused spent in pretrial confinement must be credited toward the sentence imposed. See Ex parte Quick, 23 So.3d at 70; Fuqua v. State, 910 So.2d 141, 143 (Ala.Crim.App.2005). This Court has also held that no objection in the trial court is necessary to preserve for review an issue regarding credit for time spent incarcerated before probation is revoked. Mumpfield v. State, 872 So.2d 205 (Ala.Crim.App.2003). Our research, however, has revealed no Alabama case addressing whether the statutory right to credit for time spent in pretrial incarceration may be waived as part of a negotiated plea agreement, and Lay cites no authority in support of his contention.

We conclude that, because many other constitutional, statutory, and procedural protections — even some that contain mandatory language — have been found to be waivable, a criminal defendant can waive his right to credit for time spent in incarceration pending trial pursuant to a negotiated plea agreement. For instance, in United States v. Mezzanatto, 513 U.S. 196, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995), the United States Supreme Court, in holding that a criminal defendant had waived the protections of Rule 11(e)(6), Fed.R.Crim.P. (now Rule 11(f)), recognized that a criminal defendant could waive beneficial provisions of federal statutes, procedural and evidentiary rules, and even fundamental constitutional protections:

“Rather than deeming waiver presumptively unavailable absent some sort of express enabling clause, we instead have adhered to the opposite presumption. See Shutte v. Thompson, 15 Wall. 151, 159, 21 L.Ed. 123 (1873) (‘A party may waive any provision, either of a contract or of a statute, intended for his benefit’); Peretz v. United States, 501 U.S. 923, 936, 111 S.Ct. 2661, 2669, 115 L.Ed.2d 808 (1991) (‘The most basic rights of criminal defendants are ... subject to waiver’). A criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution. See, e.g., Ricketts v. Adamson, 483 U.S. 1, 10, 107 S.Ct. 2680, 2685-2686, 97 L.Ed.2d 1 (1987) (double jeopardy defense waivable by pre-trial agreement); Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969) (knowing and voluntary guilty plea waives privilege against compulsory self-incrimination, right to jury trial, and right to confront one’s accusers); Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) (Sixth Amendment right to counsel may be waived). Likewise, absent some affirmative indication of Congress’ intent to preclude waiver, we have presumed that statutory provisions are subject to waiver by voluntary agreement of the parties. See, e.g., Evans v. Jeff D., 475 U.S. 717, 730-732, 106 S.Ct. 1531, 1538-1540, 89 L.Ed.2d 747 (1986) (prevailing party in civil-rights action may waive its statutory eligibility for attorney’s fees).”

Alabama law also recognizes that a criminal defendant may waive many constitutional, statutory, and procedural rights. See G.E.G. v. State, 54 So.3d 949, 955 (Ala.2010) (“By pleading guilty, a defendant waives three constitutional rights: the right against self-incrimination, the right to trial by jury, and the right to confront his accusers.” Heptinstall v. State, 624 So.2d 1111, 1112 (Ala.Crim.App.1993) (citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969))). Likewise, a defendant’s decision to plead guilty also waives nonjurisdictional constitutional rights, such as claims involving (1) an illegal search and seizure, (2) a coerced confession, (3) an improper grand-jury selection, and (4) the denial of a speedy trial. Gordon v. Nagle, 647 So.2d 91, 94 (Ala.1994); Boykin, supra. Additionally, a defendant can waive his right to testify on his own behalf, but that right must be waived by the defendant, not defense counsel. Ex parte McWilliams, 640 So.2d 1015, 1021 (Ala.1993); Reeves v. State, 974 So.2d 314, 325 (Ala.Crim.App.2007).

Further, a criminal defendant waives his statutory right to appeal when he enters a guilty plea. Watson v. State, 808 So.2d 77 (Ala.Crim.App.2001); See § 12-22-130, Ala.Code 1975. In a capital case, a defendant may also waive his right to have the sentencing hearing conducted before the jury. Belisle, supra, Turner, supra, see § 13A-5-46, Ala.Code 1975.

In addition, a criminal defendant may waive the right to be represented by counsel. Tomlin v. State, 601 So.2d 124, 128 (Ala.1991) (citing Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)) (recognizing the right to self-representation); Rule 6.1(b), Ala. R.Crim. P. A criminal defendant may also waive his right to arraignment, to be present, and to a jury trial. See Hargett v. State, 813 So.2d 948, 949 (Ala.Crim.App.2001) (arraignment); Rule 14.1(a) and (b), Ala. R.Crim. P., and Simpson v. State, 874 So.2d 575, 578 (Ala.Crim.App.2003) (citing Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973)) (right to be present); and Rule 9.1(b), Ala. R.Crim. P., and Arrington v. State, 773 So.2d 500, 502 (Ala.Crim.App.2000) (right to jury trial); Rule 18.1(b)(1), Ala. R.Crim. P.

Although the appellate courts of Alabama have not previously been presented with exactly this question, other states addressing the issue whether credit for jail time can be waived have drawn essentially the same conclusion that we draw in this case. See, e.g., Ray v. State, 256 Ark. 695, 509 S.W.2d 830 (1974) (holding that by agreeing to the entry of a guilty plea for a specified sentence, the postconviction petitioner necessarily waived any right to assert a claim for a lesser sentence including a credit for jail time spent in the county jail before the imposition of his sentence); People v. Johnson, 28 Cal.4th 1050, 1054-55, 123 Cal.Rptr.2d 700, 704, 51 P.3d 913, 916 (2002) (holding that a defendant may waive entitlement to credit for jail time against an ultimate jail or prison sentence for past and future days in custody); People v. Johnson, 82 Cal.App.3d 183, 188, 147 Cal.Rptr. 55, 58 (1978) (providing that, notwithstanding the mandatory language of jail-credit statute, a defendant can agree to waive presentence credits as a condition of a plea bargain); § 921.161(1), Fla. Stat. (2007) (stating that “the court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence”); Canada v. State, 1 So.3d 338, 339 (Fla.Dist.Ct.App.2009) (holding that “ ‘although a defendant can waive jail credit as a condition of a plea, the waiver must be knowing and affirmatively appear as a condition of the plea agreement’” (quoting Hill v. State; 985 So.2d 1216, 1217 (Fla.Dist.Ct.App.2008))); People v. Caballero, 228 Ill.2d 79, 87-88, 319 Ill.Dec. 364, 885 N.E.2d 1044, 1048-49 (2008) (citing cases that hold that a claim for sentencing credit involves a statutory right and is not cognizable in a postconviction proceeding); Propes v. Commonwealth, 257 S.W.3d 119, 120 (Ky.Ct.App.2008) (holding that the defendant’s negotiated plea of guilty waived the operation of the statute providing credit for time spent in custody before the commencement of a sentence); In re Turley, 496 S.W.2d 865, 866-67 (Mo.Ct.App.1973) (recognizing that the statute for allowance of jail time credit was mandatory but could be waived); Commonwealth v. Byrne, 833 A.2d 729, 734 (Pa.Super.Ct.2003) (upholding, in postconviction review, a waiver when the defendant “knowingly, voluntarily, and intelligently waived his right to credit for time served” and case did not involve “a defendant’s express acquiescence and agreement to the imposition of the ... sentence”); Collins v. State, 240 S.W.3d 925, 929 (Tex.Crim.App.2007) (holding that a defendant may affirmatively waive his right to presentence jail-time credit by entering into a plea bargain with the state if the record supports the occurrence of a waiver (citing Ex parte Olivares, 202 S.W.3d 771 (Tex.Crim.App.2006))). But see § 40-23-101(c), Tenn. Code Ann. (2006); State v. Filauro, (No. M2002-02186-CCA-R3-CD, Apr. 16, 2004) (Tenn.Crim.App.) (unpublished opinion) (holding that the statutory grant of pretrial jail credit is mandatory and sentence based on waiver of jail credits pursuant to a negotiated plea agreement was an illegal sentence).

Based on the foregoing, we conclude that a defendant may, as part of a negotiated plea agreement, waive his or her right to credit for time spent incarcerated awaiting trial under § 15-18-5, Ala.Code 1975. The judgment of the circuit court denying Lay’s Rule 32 petition is due to be affirmed.

AFFIRMED.

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

      . This case was originally assigned to another member of this Court. It was reassigned to Judge Joiner on March 1, 2011.

      . This Court may take judicial notice of its records. See Nettles v. State, 731 So.2d 626, 629 (Ala.Crim.App.1998); Hull v. State, 607 So.2d 369, 371 n. 1 (Ala.Crim.App.1992). The record shows that the State presented plea offers that were knowingly,, voluntarily, and intelligently accepted by Lay. " ‘The heart of a plea bargain, from a defendant's point of view, is the option of avoiding a possibly harsher sentence after conviction at trial.' ” Maddox v. State, 502 So.2d 790, 794 (Ala.Crim.App.1986) (quoting Hitchcock v. Wainwright, 770 F.2d 1514, 1519 (11th Cir.1985)). In this case, admittedly, the State conferred a substantial benefit upon Lay by allowing him to plead guilty to the lesser included offenses of third-degree robbery and thereby reducing the sentences he faced. In return, Lay agreed to waive any right to pretrial jail credit against his sentences.

      .This Court affirmed by unpublished memorandum the denial of Lay's first Rule 32 petition on January 24, 2003. See Lay v. State,
        (No. CR-01-2518) 876 So.2d 1194 (Ala.Crim.App.2003) (table). Lay filed a second Rule 32 petition on November 19, 2003, which the circuit court summarily dismissed. This Court affirmed by unpublished memorandum the denial of Lay's second postconviction petition on May 21, 2004. See Lay v. State, (No. CR-03-0594) 919 So.2d 1241 (Ala.Crim.App.2004) (table).

      . The State attached the transcript of the August 13, 2001, plea hearing to its response.

      . After this case was originally submitted on briefs, this Court appointed counsel for Lay and ordered Lay’s counsel and the State to file supplemental briefs. After this case was reassigned on March 1, 2011, it was set for oral argument. This case was orally argued on August 17, 2011.

      . In light of our holding that Lay's claim fails as a matter of law, we pretermit discussion of the issue whether Lay’s claim was jurisdictional.

      . Prior to the enactment of § 15-18-5, Ala. Code 1975, Alabama law did not provide for credit for pretrial incarceration. Instead, Alabama law "provided that time spent incarcerated by the defendant before conviction did not count as a credit toward the sentence imposed.” Committee Comments to Rule 26.9, Ala. R.Crim. P.

      . Rule 11(f), Fed.R.Crim.P., provides:
      "(f) Admissibility or Inadmissibility of a Plea, Plea Discussions, and Related Statements. The admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by Federal Rule of Evidence 410.”
      Rule 410, Federal Rules of Evidence, states: "Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
      "(1) a plea of guilty which was later withdrawn;
      "(2) a plea of nolo contendere;
      "(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or
      "(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
      "However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.”

      . Section 12-22-130 states: "A person convicted of a criminal offense in the circuit court or other court from which an appeal lies directly to the Supreme Court or Court of Criminal Appeals may appeal from the judgment of conviction to the appropriate appellate court."

      . Section 13A-5-46(a) provides:
      "(a) Unless both parties with the consent of the court waive the right to have the sentence hearing conducted before a jury as provided in Section 13A-5-44(c), it shall be conducted before a jury which shall return an advisory verdict....”

      . Rule 6.1 (b) states:
      "(b) Waiver of Right to Counsel. A defendant may waive his or her right to counsel in writing or on the record, after the court has ascertained that the defendant knowingly, intelligently, and voluntarily desires to forgo that right."

      .Rule 14.1(a) and (b) provides:
      "(a) In General. Except as provided in section (b), no defendant shall be tried for the commission of any misdemeanor or felony offense until he has been arraigned in open court.
      "(b) Exceptions. An arraignment need not be held in any case where a defendant represented by counsel has filed with the court a written waiver of arraignment and plea of not guilty, not guilty by reason of mental disease or defect, or not guilty and not guilty by reason of mental disease or defect, signed by the defendant and counsel, stating the age and birth date of the defendant, and acknowledging receipt by the defendant of a copy of the charge against him, with a copy of his plea and waiver of arraignment served on the prosecutor by the defense counsel.”

      . Rule 9.1(b) provides for waiver and states, in pertinent part:
      “[A] defendant may waive the right to be present at any proceeding in the following manner:
      "(i) With the consent of the court, by an understanding and voluntary waiver in open court or by a written consent executed by the defendant and by the defendant's attorney of record, filed in the case.
      "(ii) By the defendant’s absence from any proceeding, upon the court’s finding that such absence was voluntary and constitutes an understanding and voluntary waiver of the right to be present, and that the defendant had notice of the time and place of the proceeding and was informed of the right to be present.”

      . Rule 18.1(b)(1) states, in part:
      "(b) Waiver of Trial by Jury. In all cases, the defendant may waive his right to trial by jury, with the consent of the prosecutor and the court....”

      . Section 40-23-101(c), Tenn.Code. Ann. (2006), provides:
      "The trial court shall, at the time the sentence is imposed and the defendant is committed to jail, the workhouse or the state penitentiary for imprisonment, render the judgment of the court so as to allow the defendant credit on the sentence for any period of time for which the defendant was committed and held in the city jail or juvenile court detention prior to waiver of juvenile court jurisdiction, or county jail or workhouse, pending arraignment and trial.”