text:
    Dagmar TILLER v. YW HOUSING PARTNERS, LTD.
    2070417.
    Court of Civil Appeals of Alabama.
    Oct. 3, 2008.

      Kenneth J. Lay and Stephanie C. Blackburn of Legal Services Alabama, Inc., Birmingham, for appellant.
    Greggory M. Deitsch and R. Ryan Daugherty of Sirote & Permutt, P.C., Birmingham, for appellee.
   MOORE, Judge.

Dagmar Tiller appeals from a summary judgment entered by the Jefferson Circuit Court in favor of YW Housing Partners, Ltd. (“YW Housing”).

On April 5, 2007, YW Housing filed a complaint against Tiller in the Jefferson District Court alleging a claim of unlawful detainer. Tiller answered the complaint, asserting, among other things, the affirmative defense of retaliatory eviction; Tiller also filed a counterclaim asserting retaliatory eviction. On April 30, 2007, YW Housing filed an answer to the counterclaim. On June 25, 2007, the district court entered a judgment in favor of YW Housing on the complaint and the counterclaim. On June 21, 2007, Tiller filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial. On June 28, 2007, the district court noted that the parties had consented to extend the time for ruling on Tiller’s postjudgment motion, pursuant to Rule 59.1, Ala. R. Civ. P. On July 10, 2007, the district court denied Tiller’s postjudgment motion. On July 17, 2007, Tiller filed her notice of appeal to the Jefferson Circuit Court.

On August 16, 2007, YW Housing filed a motion for a summary judgment. That same day, YW Housing filed a motion to issue a writ of possession, alleging that Tiller had failed to pay money into the court pending the appeal of this case, as required by Ala.Code 1975, § 6-6-351. Tiller filed a response to the summary-judgment motion on August 28, 2007. On August 29, 2007, Tiller filed a motion for a reduction of bond, a motion for a stay, and a response to YW Housing’s motion for a writ of possession.

On September 7, 2007, the circuit court entered a judgment stating, in pertinent part:

“1. This is an appeal by ... Tiller, to the Circuit Court from a judgment in favor of [YW Housing] for unlawful de-tainer.
“2. [Tiller], during the pendency of this appeal, has not paid any monies to the Clerk of the Circuit Court, as ascertained by the District Court judgment of June [25], 2007, to prevent the issuance of a writ of possession as set out in § 35-9A-461(d) Code of Alabama, 1975.
“3. [Tiller’s] Motion for Reduction of Bond or Motion for Stay, in response to [YW Housing’s] Motion for Writ of Possession, is without merit.
“4. That although [Tiller] has filed a counter-affidavit to [YW Housing’s] Motion for Summary Judgment, the real issue in this case is a question of law and therefore proper under a Motion for Summary Judgment. The question of law is whether [Tiller] was occupying the premises under a written lease or under a tenancy at will.
“5. The initial lease between the parties, dated February 4, 2005, was a six (6) month lease ending by its terms on July 31, 2005. After the initial term, the lease attempts to create a month to month lease with no termination date. Pursuant to Womack v. Hyche, 503 So.2d 832 (Ala.1987), because the lease has no certain ending after the initial term, the lease became void and a tenancy at will was created. Therefore, the provisions of the lease, as argued by [Tiller] were no longer applicable at the time of the default of [Tiller] in failing to pay rent.
“6. On January 1, 2007, the Alabama Uniform Residential Landlord Tenant Act became effective and by its terms, Code of Alabama 1975, Title 35-9A-421(b), only a seven (7) day right to cure and termination notice is required.
“7. [YW Housing] complied with this provision, and [Tiller] failed to cure the default within the cure period.
“8. [YW Housing], having the right to terminate [Tiller’s] tenancy at will, [YW Housing’s] unlawful detainer was lawful and could not be in retaliation, as alleged by [Tiller] in her counterclaim.
“9. [Tiller] having failed to pay rent in the amount of $275.00 per month beginning March 2007 through August 2007, owes a total of $1,650.00.
“It is therefore ORDERED, ADJUDGED, AND DECREED by the Court as follows:
“1. [YW Housing’s] Motion to Issue Writ of Possession is hereby GRANTED pursuant to § 35-9A-461(d)(l), Code of Alabama 1975.
“2. The Clerk of the Court is hereby Ordered to issue an immediate Writ of Possession, and any lawful Sheriff of the County of Jefferson is hereby ordered to restore to [YW Housing] possession of the real property situated in Jefferson County, Alabama, to wit:
“[Address of the property]
“3. [Tiller’s] Motion for Reduction of Bond and Motion for Stay is hereby DENIED.
“4. [YW Housing’s] Motion for Summary Judgment is hereby GRANTED, and judgment is entered in favor of [YW Housing] and against [Tiller] on the unlawful detainer.
“5. Judgment is hereby entered in favor of [YW Housing] and against [Tiller] on the money count and a money judgment is hereby entered in favor of ... YW Housing ... and against ... Tiller, in the amount of One Thousand Six Hundred Fifty and 00/100 ($1,650.00).
“6. [Tiller’s] counterclaim is hereby DENIED.”

On September 25, 2007, YW Housing moved the court to amend the judgment to waive the automatic stay provided under Rule 62(a), Ala. R. Civ. P. The circuit court granted that motion on September 25, 2007. On September 26, 2007, the circuit court issued a writ of execution.

On October 4, 2007, Tiller filed a motion to alter, amend, or vacate the circuit court’s judgment or, in the alternative, for a new trial. YW Housing filed a response in opposition to that motion on October 23, 2007. The trial court denied Tiller’s post-judgment motion on December 3, 2007.

On January 7, 2008, Tiller filed her notice of appeal with the Alabama Supreme Court; that court transferred the appeal to this court because it is within the original appellate jurisdiction of this court.

Facts

YW Housing submitted an affidavit of Bernetta Cox, the director of housing of YW Housing. She attested that Tiller and YW Housing had entered into a lease agreement (“the lease”) for certain premises (“the premises”). The lease was executed on February 4, 2005, and provided, in pertinent part:

“This lease will be for an initial term of six months and will begin on February 4, 2005 and will end on July 31, 2005 or until terminated by either you [i.e., Tiller] or us [i.e., YW Housing] as provided in this lease. After the initial six-month term, the term of this lease shall be month to month.
“A. After the first six months of the lease, you may terminate tenancy in the premises by giving 30 days written notice to us. If you do not give the full 30 days notice, you shall be liable for rent up to the end of the 30 days for which notice was required or to the date the unit is re-rented, whichever comes first.
“B. We may terminate this lease and if necessary evict you if:
“(1) You fail to move out of the premises on or before the effective date of termination given in the notice required above.
“(2) You materially breach the terms of this lease. A material breach means:
“a. nonpayment of rent or any other financial obligation under the lease after expiration of a 3-day pay or quit notice, or
“b. four or more late rent payments within any 12-month period received after the fifth day of the month, or
“c. failure to reimburse us within 30 days or other reasonable time agreed upon by you and us for repairs required to maintain the premises (Section 8 of this lease), or
“d. a breach resulting in damages to the premises or any other portion of the project or
“e. a breach which adversely affects the health, safety, or quiet enjoyment of any resident or visitor to the premises, or
“f. a breach which interferes with our responsibilities.
“(3) You fail to provide true, correct and complete information about household income and or assets as provided for in Section 4 of this lease.
“(4) You fail to fulfill the obligations of this lease.

“C. Any notice of termination or eviction shall contain a statement of the facts constituting the cause for the termination or eviction and statement of your rights.”

An addendum to the lease, which was also executed on February 4, 2005, provided, in pertinent part:

“The premises are to be operated in accordance with the federal requirements of the low-income housing credit program. Tenant’s rights hereunder will be subject to the requirements that must be met under the program in order for Landlord to qualify to take the cost of the premises into basis for calculation of Landlord’s tax credit. Tenant will cooperate with all Landlord requirements related to such compliance and the Program.”

Cox attested that Tiller had failed to pay rent and other charges beginning in March 2007. Therefore, YW Housing served Tiller with a seven-day notice dated March 16, 2007, that stated, in pertinent part:

“YOU ARE HEREBY NOTIFIED that in consequence of your default in nonpayment of rent for the premises ... I have elected to terminate your lease, and you are hereby notified to quit and deliver up possession of the same to me within 7 days of the date of this notice.
“YOU ARE FURTHER NOTIFIED that unless you pay the rent $290.00 in full or vacate the premises within SEVEN DAYS, [we] will institute legal proceedings to evict you from the premises. If payment has been made to your account, please forward me copies of your rental receipts.”

(Emphasis omitted.) Cox further attested that Tiller had failed to vacate the premises and that she owed YW Housing $1,650 in unpaid rent and other charges.

Tiller attested in her affidavit that she had been current on her rent through the end of February 2007. Tiller attested that, at that time, she had “mentioned to the management of the premises that [she] might be moving, at which time the management deleted [her] from the computer system in which the rent is logged.” She attested that when she attempted to pay her March rent on March 1, 2007, it was refused by “the management.” According to Tiller, she attempted to pay rent again on or about March 5, 2007, and “they refused it again, stating that since [she] had advised them that [she] was vacating the premises, they were not going to accept the rent even though [she] told them [she] had changed [her] mind about moving.” Tiller attested that she had received the notice of termination on March 16, 2007, and that she again attempted to pay the March rent on or about March 19, 2007, but that it was again refused. According to Tiller, she did not breach the lease in any way.

Tiller also attested to her belief that “management” was retaliating against her for having filed a fair-housing complaint with the Department of Housing and Urban Development (“HUD”). She attested that, “[s]hortly before this eviction proceeding began, [she] filed a complaint with HUD alleging discrimination by management and alleging that management was in violation of the federal Fair Housing Act.” She further attested:

“Management has retaliated against me for filing a complaint with HUD against them and has threatened me on several occasions. I have had several problems with the management, and they have told other tenants that ‘they are trying to get rid of me because I have caused them problems with HUD.’ ”

Standard of Review

“The standard of review applicable to a summary judgment is the same as the standard for granting the motion.” McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).

“A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present ‘substantial evidence’ creating a genuine issue of material fact — ‘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.’ Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). ' Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).

Discussion

I. YW Housing’s Unlawful-Detainer Claim

Tiller’s first argument on appeal is that the circuit court erred in entering the summary judgment in favor of YW Housing on its unlawful-detainer claim because, she says, (1) the lease was not void, (2) YW Housing failed to follow the notice requirements set forth in the lease, (3) and there was a genuine issue of material fact regarding whether Tiller attempted to pay the March 2007 rent.

Initially, we must determine whether the lease was void, as held by the circuit court. In its judgment, the circuit court concluded: “Pursuant to Womack v. Hyche, 503 So.2d 832 (Ala.1987), because the lease has no certain ending after the initial term, the lease became void and a tenancy at will was created.” In Womack v. Hyche, the lease at issue provided for a one-year lease “ ‘with the option to renew the lease as long as the camp is run as a business for a profit.’ ” 503 So.2d 832, 834 (Ala.1987). Our supreme court in Womack quoted Industrial Machinery, Inc. v. Creative Displays, Inc., 344 So.2d 743, 745 (Ala.1977), which stated: “ ‘A lease for a term of years must have a term certain. There must be a certain beginning and a certain ending.’ ” 503 So.2d at 834. Based on that principle, the supreme court held that because the “lease had no certain ending, thus rendering the lease void as a tenancy for years, a tenancy at will was created.” 503 So.2d at 836. Accordingly, in Womack, the tenancy at will was created “by implication.” 503 So.2d at 836-37.

The lease in the present case is distinguishable from the lease in Womack, supra. The lease in this case provided for an initial term of six months and, thereafter, a month-to-month tenancy. Accordingly, the lease is “a combination of a tenancy for years and a periodic tenancy.” Brown v. Williams, 576 So.2d 195, 197 (AIa.1991) (citing Restatement (Second) of Property, Landlord and Tenant § 1.5(i)). Periodic tenancies are clearly recognized and accepted by Alabama law, and there is no authority that supports the circuit court’s conclusion that a periodic tenancy is void. See, e.g., Brown, 576 So.2d at 197.

Because we conclude that the lease in the present case is not void, we must next determine whether YW Housing complied with the notice requirements set forth in the lease. “When a forfeiture depends on giving a written notice of default, it must appear that the notice was given in strict compliance with the lease both as to time and contents.” Arlen Realty, Inc. v. Dozier, 393 So.2d 489, 491 (Ala.Civ.App.1980). Tiller argues that YW Housing failed to give the required three-day notice to quit and failed to include a “statement of the facts constituting the cause for the termination or eviction and statement of [her] rights.” With regard to the notice to quit, the evidence is undisputed that YW Housing provided notice to Tiller that she had defaulted and that she was required to cure the default within seven days or the lease would be terminated. Accordingly, we hold that the three-day notice requirement was met. As to the statement of facts and rights, we conclude that the notice contained a sufficient statement of facts constituting the cause for termination — Tiller’s default on her monthly rent. With regard to the “statement of rights,” there is nothing in the notice of termination that could possibly be construed as such. Accordingly, we find YW Housing’s notice deficient on this' point.

We next consider whether there was a genuine issue of material fact with regard to whether Tiller defaulted on her monthly rent obligation. YW Housing based its termination of the lease solely on the alleged nonpayment of the March 2007 rent. Cox attested that Tiller had failed to pay rent in March 2007. Tiller, however, attested that she had attempted to pay rent but that YW Housing had refused to accept her rent payment. “Where a party to a contract is the cause of the failure of the performance of the obligation due him, he cannot take advantage of that failure.” Lovoy v. Ratliff, 276 Ala. 156, 160, 159 So.2d 857, 861 (1964). We conclude that there is a genuine issue of material fact as to whether YW Housing was the fault of Tiller’s failure to pay the March 2007 rent; thus, summary judgment was improper regarding whether YW Housing could properly terminate Tiller’s lease on that ground.

II. Tiller’s Defense and Counterclaim Regarding Retaliatory Eviction

Tiller’s second argument on appeal is that the circuit court erred in entering a summary judgment in favor of YW Housing on YW Housing’s unlawful-detainer claim and on Tiller’s counterclaim because, she says, YW Housing failed to make a prima facie showing that there were no genuine issues of material fact regarding whether the eviction was retaliatory. Tiller asserted retaliatory eviction as a defense to YW Housing’s claim, and, in Tiller’s counterclaim, she asserted that she had been retaliated against in violation of Ala.Code 1975, § 35-9A-501; the Fair Housing Act, 42 U.S.C. § 8617; HUD regulations, 24 C.F.R. § 100.400(c)(4) and (5); and federal civil rights laws.

In YW Housing’s summary-judgment motion, it did not make any argument or present any evidence regarding the issue of retaliatory eviction. “A summary-judgment movant does not discharge his initial burden to challenge the sufficiency of the evidence of a nonmovant’s claim by simply ignoring the claim.” White Sands Group, LLC v. PRS II, LLC, 998 So.2d 1042, 1055 (AIa.2008). Because YW Housing failed to discharge its initial burden, we conclude that the circuit court erred in entering the summary judgment as to Tiller’s claim of retaliatory eviction.

III. Writ of Restitution

Finally, Tiller argues that the circuit court erred by “ending” her appeal because of her failure to pay rent to the clerk of the court during the pendency of her appeal. We note, however, that the court did not enter judgment in favor of YW Housing on that basis. Instead, the circuit court granted YW Housing’s motion for writ of possession pursuant to Ala.Code 1975, § 35-9A-461. Accordingly, we do not hold the circuit court in error on this point.

Conclusion

Based on the foregoing, we reverse the summary judgment entered by the circuit court in favor of YW Housing and remand the cause for further proceedings.

REVERSED AND REMANDED.

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

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

      . The postjudgment motion was filed after the judgment had been rendered but before the judgment was entered.

      . Because YW Housing failed to meet its initial burden on the issue of Tiller’s defense of retaliatory eviction and Tiller’s counterclaim alleging retaliatory eviction, we express no opinion as to the merits regarding those issues.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Brenda Elaine Hobson WILLIAMS v. Joseph Davis HOBSON.
    2070444.
    Court of Civil Appeals of Alabama.
    Oct. 3, 2008.

      David K. McWhorter, Gadsden, for appellant.
    Rick Griffin, Marion, for appellee.
   PITTMAN, Judge.

Brenda Elaine Hobson Williams (“the mother”) appeals from a judgment of the Etowah Circuit Court granting a motion filed by Joseph Davis Hobson (“the father”) to dismiss the mother’s action seeking to enforce the child-support provisions of a judgment entered in 1984. We reverse and remand.

The parties were divorced in September 1982 by a judgment of the Hale Circuit Court in which the father was ordered to pay the mother $50 per month as support for the parties’ minor child. After the father failed to make child-support payments, the mother sought to enforce the judgment in the Hale Circuit Court; in response, that court entered a judgment in March 1984 finding the father in contempt and calculating an arrearage to be discharged immediately by the father. As a component of that judgment, the Hale Circuit Court prospectively modified the father’s child-support obligation as follows:

“Henceforth, beginning the month of April, 1984, and before the 10th day of said month, the [father] shall report in writing to the Clerk of this Court all income received by him whether earned, given, borrowed, or from whatever source or kind or description. Twenty percent (20%) of all said support shall be paid to the Clerk of this Court as child support for said minor child. Additionally, with each monthly report, the [father] shall state therein to the Clerk of the Court all efforts made by him during that month preceding of attempts to secure work or employment [and] the failure to file a written report shall subject the [father] to further contempt action by this Court.”

In June 2007, the mother filed her complaint in the Etowah Circuit Court seeking to have the father held in contempt for, she alleged, having failed to make reports to the Hale Circuit Court and for having failed to pay child support as directed in the divorce judgment, as amended; copies of the two judgments were attached as exhibits to her complaint. The father filed a motion to dismiss, asserting that the mother’s complaint was barred by the equitable doctrine of laches; he alleged that any payments he might have made under the terms of the divorce judgment, as amended, would necessarily be obscured by the lapse of, time. The trial court scheduled a hearing on the father’s motion; however, rather than solely considering the allegations of the complaint, the trial court apparently heard, and did not exclude, testimony from the parties before entering a judgment granting the relief requested by the father, from which the mother has appealed.

Although a motion to dismiss under Rule 12(b)(6), Ala. R. Civ. P., for failure to state a claim may properly, in some circumstances, be based upon an affirmative defense such as laches when the face of the complaint itself shows that the affirmative defense bars the claim, see Williams v. Nash, 428 So.2d 96, 99-100 (Ala.Civ. App.1983), the trial court’s reception of extraneous evidence resulted in the conversion of the father’s motion to one seeking a summary judgment. See Rule 12(b), Ala. R. Civ. P. (“If, on a motion asserting the ... failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for [a] summary judgment.”). It is well settled that “we review a summary judgment de novo ” and that “ ‘a summary judgment carries no presumption of correctness.’ ” Lary v. Worlcr-Loss Data Inst., 911 So.2d 18, 20 (Ala.Civ.App.2005). On a motion for a summary judgment, “[t]he moving party bears the burden of ... showing that it is entitled to a judgment as a matter of law.” White v. Howie, 677 So.2d 752, 753 (Ala. Civ.App.1995).

On appeal, the mother contends that the trial court erred in granting the father’s motion because, she says, laches is not a valid defense to an action seeking to enforce a child-support obligation. The mother’s contention is a sound one. As we recently stated in Mills v. Dailey, [Ms. 2060807, July 3, 2008]-So.3d-(Ala. Civ.App.2008), “Alabama law has long held that the defense of laches is inapplicable to actions enforcing child-support obligations.” — So.3d at-(citing, among other cases, Trimble v. Trimble, 628 So.2d 789 (Ala.Civ.App.1993)); see also Carltron v. Carltron, 565 So.2d 656, 659 (Ala.Civ. App.1990) (“[T]he defense of laches is not applicable to an action for nonpayment of child support or alimony. ... Rather, such payments constitute final judgments from the date that they become due and, thus, are subject to a twenty-year statute of limitations.”).

In response to the line of authority relied upon by the mother, the father asserts that Moffett v. Moffett, 570 So.2d 691 (Ala. Civ.App.1990), instead controls. In Mof-fett, we affirmed a trial court’s refusal of a mother’s 1989 request to determine back child support pursuant to a 1971 default divorce judgment. Notably, however, that judgment had provided that if the father’s whereabouts could be ascertained and the father were to return to Alabama, a “ ‘reference’ ” would be held “ ‘to determine the amount of child support to be paid to the ... [mother] for the maintenance of ” the parties’ minor child. 570 So.2d at 691 (emphasis added). We noted that although laches does not apply to “ ‘past-due child support payments,’” the trial court in Moffett had “never fixed a child support obligation.” Id. at 691-92 (quoting Davis v. State ex rel. Sledge, 550 So.2d 1034, 1035 (Ala.Civ.App.1989)).

Moffett is distinguishable because the Hale Circuit Court’s 1984 judgment did fix a child-support obligation, albeit one that is denominated not as a stated sum of dollars and cents but as a percentage of the father’s income. Although the income terms of the 1984 judgment of the Hale Circuit Court may be remarkable, that judgment is not uniquely susceptible to the application of the doctrine of laches as was the judgment in Moffett, which essentially contained a provision deferring to subsequent proceedings a decision regarding the imposition of any child-support obligation upon the father in that case. Here, however, the judgment sought to be enforced by the mother is of a class of judgments that we have previously held enforceable by contempt proceedings directed to ascertaining the income that the judgment debt- or has earned for the pertinent period. See Sartin v. Sartin, 678 So.2d 1181, 1182 (Ala.Civ.App.1996) (affirming 1995 judgment holding father in contempt of court for failing to pay alimony and child support under 1979 divorce judgment setting consolidated payment obligation of “ ‘an amount equal to twenty-five percent of the [father’s] net income’”). Thus, Moffett does not amount to authority supporting the trial court’s summary judgment.

The father also contends that because the trial court’s judgment is based, in part, upon oral testimony, and because no transcript of that testimony or acceptable substitute for such a transcript (see generally Rules 10(d) and 10(e), Ala. RApp. P.) appears in the record, this court must conclusively presume that the evidence supports the trial court’s judgment and affirm. To be sure, “where no record is presented for review, this court may not reverse” (In re Coleman, 469 So.2d 638, 639 (Ala.Civ.App.1985) (emphasis added)); however, the appellant has the responsibility only “to provide enough of the record to support the issues presented.” State v. Robinson, 510 So.2d 834, 835 (Ala.Civ.App.1987). Thus, we have properly held that “[a]n appellant is not required to include the trial transcript in the record on appeal when the transcript is not necessary to decide the issue presented for review,” such as when the question presented “is one of law, not fact.” Douglass v. Allen, 574 So.2d 39, 41 (Ala.Civ.App. 1990). Here, no amount of testimony can alter the effect of the legal principle that laches is simply not a proper defense to an action to recover child support that is unpaid.

In this case, the trial court erred in concluding that, by asserting the defense of laches, the father had met his burden of showing that he was entitled to a judgment as a matter of law. The judgment of the Etowah Circuit Court is reversed, and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

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

      . We note that Ala.Code 1975, § 6-9-191, provides that a rebuttable presumption that a judgment has been satisfied will arise after 10 years has elapsed from the entry of a judgment without issue of execution. However, the effect of that statute upon the mother's claim in this case has not been raised or argued, and we need not consider it further.


text:
    NORTH CLARKE WATER AUTHORITY v. Robert DOCKERY.
    2061173.
    Court of Civil Appeals of Alabama.
    Oct. 3, 2008.

      Thomas H. Boggs, Jr., Demopolis, for appellant.
    Ronnie L. Williams, Mobile, for appellee.
   PITTMAN, Judge.

The North Clarke Water Authority (“the Authority”) appeals from a judgment purporting to grant Robert Dockery’s request to quiet title to a certain parcel of property located on or near the section line that serves as the boundary line between Mar-engo and Clarke Counties. Because the trial court did not receive evidence as to the location of the section line in relation to the disputed property, we must reverse the judgment and remand the ease for further proceedings.

On April 3, 2006, Dockery filed a complaint seeking a judgment to quiet title to a specific parcel of land in Marengo County described as being located “in Lot C, Section 20, Township 12 North, Range 2 East, and lying east of County Road 71, containing 3.8 acres, more or less.” The Authority filed a motion to dismiss; that motion was denied on May 25, 2006. Subsequently, the Authority filed an answer denying Dockery’s claims and alleging that the action was more accurately described as a boundary-line dispute between adjoining landowners and not one to quiet title.

On the second day of the trial in this •case, which took place between December 6-7, 2006, Dockery attempted to amend his complaint to add an ejectment claim, admitting that he did not have peaceable possession of the disputed property because a padlocked fence surrounded the Authority’s pumping station that was located on a portion of the disputed property. The Authority objected to Dockery’s request to amend his complaint, and the trial court sustained that objection. On May 14, 2007, the trial court entered a judgment that purported to quiet title to the disputed property in Dockery. About two weeks later, the Authority filed a post-judgment motion; that motion was denied by operation of law on August 24, 2007. Thereafter, the Authority filed a timely notice of appeal to the Alabama Supreme Court. The supreme court transferred the case to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

“In an action to quiet title, when the trial court hears evidence ore tenus, its judgment will be upheld unless it is palpably wrong or manifestly unjust.” Woodland Grove Baptist Church v. Woodland Grove Cmty. Cemetery Ass’n, Inc., 947 So.2d 1031, 1036 (Ala.2006). “However, the presumption of correctness does not attach to a trial court’s conclusions of law.” Id. A burden-shifting analysis applies to actions to quiet title under § 6-6-540, Ala. Code 1975. First, the plaintiff must prove “actual or constructive possession of the property and that [that] possession was peaceable, as distinguished from scrambling or disputed.” Cobb v. MacMillan Bloedel, Inc., 604 So.2d 344, 345 (Ala.1992). “Actual possession generally refers to the physical occupation of the land.” Woodland Grove, 947 So.2d at 1037 n. 7.

In this case, Dockery admitted at trial that he was not in peaceable possession of part of the disputed property. Thus, the trial court could not “quiet” title in Dockery pursuant to § 6-5-540. However, our review of the judgment cannot end at this point simply with a reversal, as urged by the Authority. The record reveals that the Authority defended Dock-ery’s action by asserting that the case was actually a boundary-line dispute between adjoining landowners. “When issues not raised by the pleadings are tried by express consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” See Rule 15(b), Ala. R. Civ. P.; see also Holifield v. Smith, [Ms. 2061204, July 11, 2008] - So.3d -(Ala.Civ.App.2008).

The Authority presented evidence regarding the exact location of its pumping station, which the Authority claimed was situated entirely within Clarke County. On the other hand, Dockery offered evidence tending to indicate that the Authority’s pumping station encroached upon Dockery’s land, which he insisted was located solely within Marengo County.

Both Dockery and the surveyor he hired, Glenn McCord, testified that Dock-ery’s land was located in Marengo County. The flaw in McCord’s approach is that he testified that he did not attempt to establish exact boundary lines, but only plotted Dockery’s land and its relative location to the surrounding Marengo County landowners’ tracts of land. Although McCord stated that he had researched Clarke County and Marengo County land records, he also testified that he had not actually surveyed the location of the Marengo-Clarke County line as part of his work. He merely opined that all Dockery’s land was located in Marengo County, without having plotted the section line relative to the disputed property.

On the other hand, the Authority asserted that the portion of the disputed property on which it had built its pumping station was located solely in Clarke County and had never been part of Dockery’s Marengo County property. Thus, the true controversy in this case became a dispute concerning the proper location of the Mar-engo-Clarke County line, which was established by a government survey setting out the section line. Our review of the evidence and exhibits shows that neither Dockery nor the Authority offered any evidence of a government survey reflecting the exact location of the county line relative to the disputed property.

The bulk of the testimony at trial concerned the location of a fence that had been placed on a portion of Dockery’s land when that parcel had belonged to Dock-ery’s predecessor in title. The documentary evidence offered by Dockery, which had been prepared by McCord, indicated that the fence was located south of the pumping station, thus indicating that the pumping station had been built on Dockery’s land. On the other hand, the documentary evidence offered by the Authority indicated that the fence ran more or less north of, and to one side of, the pumping station, thereby indicating that the station was not on Dockery’s land. Another document offered into evidence by the Authority also purported to show the Marengo-Clarke County line, i.e., the section line, relative to the pumping station, but that document was rejected by the trial court as not having been properly authenticated.

“In this state all disputes as to lines of sections and subdivisions thereof are to be governed by the United States Survey and located by reference to the original government survey.” Mims v. Alabama Power Co., 262 Ala. 121, 124, 77 So.2d 648, 651 (1955). Although a boundary line between adjacent landowners may be fixed or changed by agreement or by adverse possession, neither process can “ ‘relocate a section line as surveyed by the government surveyors.’ ” Id. (quoting McNeil v. Hadden, 261 Ala. 691, 693, 76 So.2d 160, 162 (1954)). The trial court’s judgment, which purported to quiet title as to all property located north of the fence as drawn on Dockery’s documents, attempted to resolve the dispute based solely upon the location of the fence. We find no mention of the proper location of the boundary line between Marengo County and Clarke County relative to the adjoining landowners’ property as required by Alabama law. See Mims and McNeil, supra.

Because the undisputed evidence indicated that all Dockery’s property was situated in Marengo County and all the Authority’s property was located in Clarke County, we conclude that the relative location of the fence, in relation to the disputed property, was immaterial to a proper determination of the county boundary line (section line) that serves as the boundary between the parties’ properties. See, e.g., Dial v. Bond, 849 So.2d 189 (Ala.Civ.App. 2002) (trial court properly determined boundary between adjoining landowners was government survey line despite evidence indicating that old fence line was boundary).

Although neither party requested that trial court order an independent survey of the county line and its exact location relative to the disputed property, we conclude that in order to make a proper determination of the boundary between the properties of the adjoining landowners, the trial court will need the parties to adduce evidence of the location of the section line in relation to the adjoining landowners’ properties. After such evidence is adduced— by reference to government surveys, the report and or testimony of an independent surveyor who has plotted the exact location of the section line relative to the two landowners’ properties, or by other equivalent means — the trial court will have sufficient evidence to determine whether the Authority’s pumping station has encroached over the county line and onto Dockery’s property.

Because we must reverse the trial court’s judgment, we pretermit discussion of the remaining issues raised by the Authority in this appeal.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

      . Although the decisions in Mims and McNeil have been limited by Watson v. Price, 356 So.2d 625 (Ala.1978), insofar as those decisions concern the tacking periods of adverse possession by successive property owners, Watson does not abrogate Mims or McNeil as to the determinative issue in this case,


author: PER CURIAM.

text:
    Xavier JETT v. STATE of Alabama.
    CR-05-1749.
    Court of Criminal Appeals of Alabama.
    Aug. 18, 2006.
    Rehearing Denied Oct. 27, 2006.

      Edward D. Tumlin, Birmingham, for appellant.
    Submitted on appellant’s brief only.
   PER CURIAM.

The appellant, Xavier Jett, appeals his convictions for attempted murder and discharging a gun into an occupied dwelling. On April 25, 2006, Jett was sentenced to life in the penitentiary. On that same day, Jett filed in open court a motion for a new trial. The motion was not forwarded to the circuit clerk’s office, and Jett did not file a copy of the motion for a new trial in the circuit clerk’s office. The circuit court denied the motion on May 26, 2006. Jett then filed a notice of appeal on June 20, 2006.

The question presented in this case is whether the motion for a new trial was properly “filed” as that term is used in Rule 24.1, Ala.R.Crim.P., so as to toll the time for filing a notice of appeal.

Rule 24.1(b), Ala.R.Crim.P., states:

“A motion for a new trial must be filed no later than thirty (30) days after sentence is pronounced. After a denial of a motion for a new trial, the previously filed notice of appeal shall be deemed to have been filed as of the date of the denial of the motion and shall include an appeal from the denial of the motion.”

(Emphasis added.)

Rule 24.3, Ala.R.Crim.P., states:

“In order to perfect the filing of a motion in arrest of judgment or a motion for new trial, it is not necessary for the motion to be presented to the judge, nor is it required, in order to perfect its filing, that the motion be set for a date certain.”

(Emphasis added.)

Recently, this Court in Poole v. State, 926 So.2d 376 (Ala.Crim.App.2005), held that a notice of appeal was not properly “filed” when it was delivered to the circuit court in open court but was not forwarded to the circuit clerk’s office until after the period for filing a timely notice of appeal had expired. In Poole, we stated:

“ A pleading or other paper may be said to have been duly filed when it is delivered to the proper filing officer.’ Covington Bros. Motor Co. v. Robinson, 239 Ala. 226, 229, 194 So. 663, 666 (1940). See also United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897 (1916).
“‘As pointed out by the authorities, the word “file” is derived from the Latin word “filum,” a thread, and its application is drawn from the ancient practice of placing papers on a thread or wire for ready reference. In Words and Phrases, Second Series, vol. 2, page 531, is the following definition: “There can be no ‘filing’ of a paper in a legal sense except by its delivery to an official whose duty it is to file papers and who is required to keep and maintain an office or other public place for their deposit, and the paper must either be delivered personally to such officer with the intent that the same shall be filed by him, or delivered at the place where the same should be filed.” ’
“Ex parte State ex rel. Breitling, 221 Ala. 398, 399, 128 So. 788, 788 (1930).
“ ‘The object of “filing” is to deposit the document in a public place so that it may be seen and examined by any person interested. A document may be said to be “filed” with an officer when it is placed in his official custody and deposited in the place where his official records and papers are usually kept. A document is “filed” when delivered in a public office to the custodian of the records thereof.’
“State v. Brazzel, 229 La. 1091, 1095-96, 87 So.2d 609, 610-11 (1956).”

926 So.2d at 377-78. In Ingram v. State, 882 So.2d 374, 376-77 (Ala.Crim.App.2003), we also stated:

“ ‘We start with the basic premise that words used in court rules must be given them plain meaning.’ Nieto v. State, 842 So.2d 748, 749 (Ala.Crim.App.2002). ‘[W]hen interpreting a rule of procedure, we must give the wording of the rule its plain meaning.’ J.W. v. State, 751 So.2d 529, 531 (Ala.Crim.App.1999). To invoke the right to appeal under Rule 26.9(b)(4)(ii), a defendant must have ‘timely filed’ a motion to withdraw his or her guilty plea. (Emphasis added.) ‘File’ is defined in Black’s Law Dictionary 628 (6th ed.1996), in part, as ‘[t]o deliver an instrument or other paper to the proper officer or official for the purpose of being kept on file by him as a matter of record and reference in the proper place.’ (Emphasis added.)”

(Footnote omitted.)

We hold that to comply with the filing requirements of Rule 24, Ala.R.Crim. P., a motion for a new trial must be filed in the appropriate circuit clerk’s office. Here, the motion was not filed in the circuit clerk’s office; therefore, it was not effective to toll the time for filing a notice of appeal. When Jett deposited the motion for new trial “with the circuit court without filing the [motion] with the circuit clerk he assumed the risk that the [motion] would not be timely forwarded to the circuit clerk.” Poole, 926 So.2d at 379.

Jett’s notice of appeal was filed more than 42 days after Jett was sentenced. See Rule 4, Ala.R.App.P. Accordingly, the notice of appeal was untimely filed. Jett’s remedy, if any, is to file a petition for postconviction relief pursuant to Rule 32.1(f), Ala.R.Crim.P.

APPEAL DISMISSED.

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

      . The circuit clerk was not aware that a motion for a new trial had been filed in this case until the clerk's office of this Court inquired as to whether one had been filed.


author: PER CURIAM. SEE, Justice

text:
    Ex parte Xavier JETT. (In re Xavier Jett v. State of Alabama).
    1060281.
    Supreme Court of Alabama.
    July 20, 2007.

      Bryan A. Stevenson and Randall S. Susskind of Equal Justice Initiative of Alabama, Montgomery; and Edward D. Tum-lin, Birmingham, for petitioner.
    Troy King, atty. gen., Kevin C. Newsom, deputy atty. gen., and Stephanie N. Mor-man and James B. Prude, asst, attys. gen., for respondent.
   PER CURIAM.

On April 25, 2006, Xavier Jett was sentenced to life in prison following his convictions for attempted murder and for discharging a gun into an occupied dwelling. He filed a motion in open court for a new trial. That motion was denied on May 26. On June 20, Jett filed his notice of appeal to the Court of Criminal Appeals. The Court of Criminal Appeals held that Jett’s motion for a new trial had not been effectively filed under Rule 24.1, Ala. R.Crim. P., because it was not filed with the clerk of the circuit court. Based on that holding, the Court of Criminal Appeals concluded that the motion for a new trial did not toll the running of the time for filing a notice of appeal and that Jett’s notice of appeal was filed outside the 42-day period for the filing of an appeal; it therefore dismissed his appeal. Jett v. State, 5 So.3d 637 (Ala.Crim.App.2006). Because we hold that Rule 24.1, Ala. R.Crim. P., does not prohibit Jett from filing his motion with the trial judge in open court, we reverse and remand.

Facts and Procedural History

Xavier Jett was convicted of attempted murder and of discharging a gun into an occupied dwelling. On April 25, 2006, the trial court sentenced him to life in prison. At the sentencing hearing, Jett filed a motion for a new trial with the trial judge. The motion is contained in the clerk’s record, and the handwritten case-action-summary sheet notes that it was denied. The Alabama Judicial Information System online case-action summary includes a notation that the motion for a new trial was filed on April 25, 2006.

When the Court of Criminal Appeals began reviewing Jett’s appeal, it contacted the clerk of the circuit court, who stated that the motion for a new trial had not been filed in that office. The Court of Criminal Appeals concluded that the motion Jett had filed with the trial judge had not been forwarded to the clerk of the circuit court. For this reason, the Court of Criminal Appeals held, the motion for a new trial had not been properly filed pursuant to Rule 24.1(b), Ala. R.Crim. P., and, therefore, it had not tolled the running of the time for filing a notice of appeal. That court held that the notice of appeal was therefore untimely, and it dismissed Jett’s appeal. We granted Jett’s petition for the writ of certiorari to determine whether Jett’s motion for a new trial was effectively filed and whether the Court of Criminal Appeals violated Jett’s due-process rights when it contacted the circuit court clerk’s office without giving him notice and an opportunity to be heard. However, because we hold that Jett’s motion for a new trial was effectively filed, we need not decide the issue whether the Court of Criminal Appeals erred in contacting the circuit clerk without notifying Jett.

Standard of Review

‘“This Court reviews pure questions of law in criminal cases de novo.’ ” Ex parte Morrow, 915 So.2d 539, 541 (Ala.2004) (quoting Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003)).

Analysis

Jett argues that the Court of Criminal Appeals erred in concluding that his motion for a new trial, because it was filed in open court rather than in the circuit court clerk’s office, was not effectively filed and therefore did not toll the running of the time within which he could file his notice of appeal. We agree.

In dismissing Jett’s appeal as untimely, the Court of Criminal Appeals relied on Poole v. State, 926 So.2d 375 (Ala.Crim. App.2005), a case interpreting Rule 4(b)(1), Ala. R.App. P. In Poole, the Court of Criminal Appeals held that a written notice of appeal filed with the trial judge but not transmitted to the court clerk is ineffective. 926 So.2d at 379. Rule 4(b)(1) specifically requires that a written notice of appeal be filed with the clerk of the trial court; therefore, the Court of Criminal Appeals concluded in Poole: “[T]he notice of appeal was not filed with the proper official within 42 days of the date of sentencing.” 926 So.2d at 379.

Jett argues that Poole is distinguishable from this case because Rule 4(b)(1) applies to a notice of appeal, not to a motion for a new trial. Rule 4(b)(1) provides that “a notice of appeal by the defendant shall be filed with the clerk of the trial court.” On the other hand, Rule 24.1(b), Ala. R.Crim. P., governing the timeliness of a motion for a new trial, does not require filing “with the clerk of the trial court,” but states instead only that “[a] motion for a new trial must be filed no later than thirty (30) days after sentence is pronounced.” Thus, unlike Rule 4(b)(1), Rule 24.1(b) does not, on its face, require that a motion for a new trial be filed in the clerk’s office.

The State argues that “reference to similar procedural rules” shows that the Alabama Rules of Criminal Procedure “contemplate that the motion [for a new trial] is to be filed in the circuit clerk’s office.” State’s brief at 5-6. The State notes that the Alabama Rules of Appellate Procedure provide that, “[i]n criminal cases, an appeal permitted by law as a matter of right to an appellate court shall be taken by filing a written notice of appeal with the clerk of the trial court....” Rule 3(a)(2), Ala. R.App. P.

The State further points out that the Alabama Rules of Civil Procedure define the term “filing with the court” as follows:

“The filing of papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk.”

Rule 5(e), Ala. R. Civ. P.

Finally, the State notes that, in Rule 24.3, Ala. R.Crim. P., the Court eliminated the previous practice that had required a motion for a new trial to be presented to the trial judge. The State contends that “[t]he only logical conclusion to be drawn from [this] change in language is that this Court intended to discontinue the procedural requirement, or practice, of ‘filing’ motions with the trial judge.” State’s brief at 11.

Our construction of Rule 24.1, Ala. R.Crim. P., begins with the plain language of the rule itself. Ex parte Haynes Downard Andra & Jones, LLP, 924 So.2d 687, 692 (Ala.2005) (“ ‘ “We start with the basic premise that words used in court rules must be given their plain meaning.” ’ ” (quoting Southeastern Meats of Pelham, Inc. v. City of Birmingham, 895 So.2d 909, 913 (Ala.2004), quoting in turn Nieto v. State, 842 So.2d 748, 749 (Ala. Crim.App.2002))). In construing Rule 24.1, “we are mindful that rules and statutes relating to the same subject matter must be read in pañ materia, thus allowing for legal harmony where possible.” Ex parte State ex rel. Daw, 786 So.2d 1134, 1136 (Ala.2000). However, we also recognize that this Court adopts a court rule 'with knowledge of other court rules and existing law. See Ex parte Fontaine Trailer Co., 854 So.2d 71, 83 (Ala.2003) (“ ‘It is a familiar principle of statutory interpretation that the Legislature, in enacting new legislation, is presumed to know the existing law.’” (quoting Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So.2d 293, 297 (Ala.1998))); Daw, 786 So.2d at 1137 (“In construing rules of court, this Court has applied the rules of construction applicable to statutes.”).

Here, Rule 24.1, Ala. R.Crim. P., does not specify the manner in which a filing must be made. On the other hand, both Rule 5(e), Ala. R. Civ. P., and Rule 3(a)(2), Ala. R.App. P., specifically provide for papers to be filed in the office of the clerk of the trial court in certain circumstances. It is apparent that this Court knows how to craft a rule that would require a party to file a motion for a new trial in the trial court clerk’s office instead of with a trial judge. The absence of language requiring the motion to be filed in the office of the clerk of the trial court suggests that a party may file a motion for a new trial directly with the trial judge if the judge is willing to accept it for filing in this manner.

A reading of Rule 24.1 in harmony with Rule 5(e), Ala. R. Civ. P., and Rule 3(a)(2), Ala. R.App. P., supports this interpretation. Rule 5(e) specifically allows a litigant, with the trial judge’s permission, to file a motion for a new trial directly with the trial judge. Rule 3(a)(2), although stating that a written notice of appeal must be filed in the office of the clerk of the trial court, provides that a criminal defendant may also give an oral notice of appeal directly to the trial judge at the time of sentencing. Thus, the reference to the Alabama Rules of Civil Procedure and the Alabama Rules of Appellate Procedure actually demonstrates that the definition of “filing” is broader than the Court of Criminal Appeals understood it to be.

Contrary to the State’s assertion, the language of Rule 24.3, Ala. R.Crim. P., does not indicate that “this Court intended to discontinue the procedural requirement ... of ‘filing’ motions with the trial judge.” State’s brief at 11. Rule 24.3 states that “[i] n order to perfect the filing of ... a motion for a new trial, it is not necessary for the motion to be presented to the judge.... ” Although Rule 24.3 allows a party to file a motion without presenting it directly to the trial judge, it does not prohibit a party from presenting the motion to the judge. We cannot say that the Court intended in Rule 24.3 to “discontinue the procedural requirement ... of ‘filing’ motions with the trial judge.” State’s brief at 11.

In light of the fact that Rule 24.1 does not prohibit the filing of a motion for a new trial with the trial judge and that both Rule 5(e), Ala. R. Civ. P., and Rule 3(a)(2), Ala. R.App. P., contemplate filings directly with the trial judge in certain circumstances, we hold that Jett’s filing of a written motion for a new trial directly with the trial judge — a motion stamped “filed in open court” appears in the clerk’s record— was sufficient to toll the period within which to file a notice of appeal.

Finally, the State argues that Jett’s motion for a new trial, even if the trial judge could permissibly accept it, nonetheless had to be delivered to the circuit clerk before it could be considered effective. The State cites Ex parte United States Hoffman Machinery Co., 270 Ala. 337, 118 So.2d 914 (1960), in support of this proposition. That case, however, interpreted Tit. 13, § 119, Ala.Code 1940, which provided, in pertinent part:

“[Ajfter the lapse of thirty days from the date on which a judgment or decree was rendered, the court shall lose all power over it ... unless a motion to ... grant a new trial has been filed and called to the attention of the court, and an order entered continuing it for hearing to a future day.”

In Hoffman Machinery Co., the plaintiff submitted his motion for a new trial to the trial judge on a Friday. The 30th day was a Saturday. Because the clerk’s office was not open on Saturday, the motion did not reach the clerk’s office until Monday. The defendant moved to strike the motion for a new trial. However, the precise question in that case was not whether the motion had been filed, but whether the trial court had jurisdiction to hear the motion because no order for a continuance had been entered before the 30th day. It was the order granting a continuance or granting a new trial that had to be filed with the clerk of the trial court, and that order would not be effective until so filed. See Mt. Vernon-Woodberry Mills v. Union Springs Guano Co., 229 Ala. 91, 93, 155 So. 716, 717-18 (1934) (“We have held that the entry here meant is the act of delivering it to the clerk to be filed, or of writing it on the motion docket or minutes.”). Thus, Hoffman Machinery Co. does not stand for the proposition that a motion for a new trial must be filed in the clerk’s office in order to be effective. Therefore, we hold that a motion for a new trial is effectively filed under Rule 24.1,- Ala. R.Crim. P., when it is received by the trial judge.

Conclusion

Because Jett effectively filed his motion for a new trial, the Court of Criminal Appeals erred in dismissing his appeal on the ground that Jett’s notice of appeal was untimely filed. That court’s judgment is reversed, and the case is remanded for the Court of Criminal Appeals to consider the merits of Jett’s appeal.

REVERSED AND REMANDED.

WOODALL, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

SEE and LYONS, JJ., concur specially.

COBB, C.J., recuses herself.

SEE, Justice

(concurring specially).

I join fully in the main opinion; I write specially only because of my concern about the practice addressed in Jett’s alternative argument — the argument this Court finds it unnecessary to reach.

The Court of Criminal Appeals held that Jett had not effectively filed his motion for a new trial because he had filed it with the trial judge instead of in the office of the clerk of the trial court. The Court of Criminal Appeals states in its opinion that “[t]he circuit clerk was not aware that a motion for a new trial had been filed in this case until the clerk’s office of this Court inquired as to whether one had been filed.” Jett v. State, 5 So.3d 637, 639 n. 1 (Ala.Crim.App.2006). Jett notes that the filing of the motion appears both in the case-action summary and in the Alabama Judicial Information System online case-action summary; the motion appears in the clerk’s record and is stamped “filed in open court.” Jett argues that the Court of Criminal Appeals violated his due-process rights when it contacted the clerk of the circuit court to determine whether the motion had actually been filed in the clerk’s office.

It has long been our rule that an appellate court may not rely on facts outside the record. Liberty Nat’l Life Ins. Co. v. Patterson, 278 Ala. 48, 48, 175 So.2d 737, 741 (1965) (“ ‘[The record] is the sole, conclusive, and unimpeachable evidence of the proceedings in the lower court. If incomplete or incorrect, amendment or correction must be sought by appropriate proceedings rather than by impeachment on the hearing in the appellate court. Accordingly, the record cannot be impeached, changed, altered, or varied on appeal by an ex parte and unauthorized certifícate of the trial judge or of the clerk, nor by statements in the briefs of counsel, nor by affidavits or other evidence or matters de-hors the record.’ ” (quoting Union Mut. Ins. Co. v. Robinson, 216 Ala. 527, 528-29, 118 So. 587, 587 (1927))). Moreover, a court may not ordinarily take judicial notice of the records of another court. See Belyeu v. Boman, 252 Ala. 371, 373, 41 So.2d 290, 291 (1949) (holding that the Supreme Court of Alabama may not take judicial notice of the records of the trial court unless those records appear in the clerk’s record or in the records of the Supreme Court); Worthington v. Amerson, 741 So.2d 437, 438 n. 2 (Ala.Civ.App. 1999) (“Generally, a court may not take judicial notice of the records of another court.”).

Rule 201, Ala. R. Evid., does provide that a court may take judicial notice of “adjudicative facts” “ ‘concerning the immediate parties — who did what, where, when, how, and with what motive or intent. ...’” Advisory Committee’s Notes to Rule 201, Ala. R. Evid. (quoting 2 K. Davis, Administrative Law Treatise § 15.03, at 353 (1958)). This Court has not yet been presented with the issue whether the adoption of the Alabama Rules of Evidence changed the common-law rule in Alabama that a court ordinarily may not notice the records of another court, but the majority of states retain the common-law rule. See Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5106.4 (2007). Even under Rule 201, however, it does not appear that the Court of Criminal Appeals would be permitted in this case to take judicial notice of whether Jett had filed his motion for a new trial in the circuit court clerk’s office. Rule 201 allows a court to notice a fact that is “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Rule 201(b), Ala. R. Evid. In this case, it appears that the record on its face indicated that Jett had timely filed his motion for a new trial. The circuit court clerk apparently had entered the filing of the motion both in the case-action summary and in the Alabama Judicial Information System online case-action summary. Thus, it appears that the Court of Criminal Appeals went beyond taking judicial notice of an undisputed fact and relied on a telephone call to the circuit court clerk to establish that, notwithstanding the recordation of the motion reflected in the record, the motion had not been filed in the clerk’s office. Because the fact of filing was in dispute in this case, it would appear that judicial notice was not appropriate. See Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir.2001) (“[T]he court did more than take judicial notice of undisputed matters of public record. The court took judicial notice of disputed facts stated in public records.”).

The better practice would have been to afford Jett notice and an opportunity to be heard before the Court of Criminal Appeals noticed the records of the circuit court clerk. At least one jurisdiction has held that, “[i]f the party against whom the fact is noticed is not permitted an opportunity to demonstrate that the fact is not true in the case at bar, a denial of due process results.” Sumpter v. State, 264 Ind. 117, 122-28, 340 N.E.2d 764, 768 (1976).

LYONS, J., concurs.

      . The Court of Criminal Appeals stated in a footnote in its opinion dismissing Jett's appeal: "The circuit clerk was not aware that a motion for a new trial had been filed in this case until the clerk’s office of this Court inquired as to whether one had been filed.” 5 So.3d at 639 n. 1.

      . Rule 24.1(b), Ala. R.Crim. P., provides:
      "A motion for a new trial must be filed no later than thirty (30) days after sentence is pronounced. After a denial of a motion for a new trial, the previously filed notice of appeal shall be deemed to have been filed as of the date of the denial of the motion and shall include an appeal from the denial of the motion.”

      . Two other cases cited by the Court of Criminal Appeals in its opinion in the instant case, Covington Bros. Motor Co. v. Robinson, 239 Ala. 226, 194 So. 663 (1940), and Ex parte State ex rel. Breitling, 221 Ala. 398, 128 So. 788 (1930), did not address this specific issue. Robinson held that the referee in a bankruptcy case is, for all intents and purposes, the bankruptcy court, and that all papers may be filed with the referee unless they require action by the bankruptcy judge. For this reason, either the referee or the judge would be the "proper filing officer” for an amendment to the schedule in a bankruptcy petition. Breitling held that the mailbox rule does not apply to the filing of a complaint: placing the complaint in the mail did not constitute filing; a complaint is not filed until it is actually received by the clerk of the court. In Brei-tling, a statute required that the complaint be directed to the clerk of the trial court.

      . Rule 24.3, Ala. R.Crim. P., provides:
      "In order to perfect the filing of a motion in arrest of judgment or a motion for new trial, it is not necessary for the motion to be presented to the judge, nor is it required, in order to perfect its filing, that the motion be set for a date certain.”

      . The State also cites a number of cases that stand for the proposition that "a trial judge’s order (or ruling) on any motion or judgment is not effective until it is filed in the circuit clerk’s office.” State's brief at 17-18. These cases do not address whether the motion itself, as opposed to the order ruling on that motion, is effective before it is filed with the clerk.

      . Because we hold that the Court of Criminal Appeals erred in dismissing Jett’s appeal, it is not necessary to decide whether the Court of Criminal Appeals violated Jett’s due-process rights when it contacted the circuit court clerk without notifying Jett.


author: WELCH, Judge. BASCHAB, Presiding Judge,

text:
    Xavier JETT v. STATE of Alabama.
    CR-05-1749.
    Court of Criminal Appeals of Alabama.
    April 4, 2008.
    Edward D. Tumlin, Birmingham, for appellant.

      Troy King, atty. gen., and P. David Bjurberg and James B. Prude, asst, attys. gen., for appellee.
   On Remand from the Alabama Supreme Court

WELCH, Judge.

Xavier Jett was convicted of attempted murder, a violation of §§ 13A-6-2 and 13A-4-2, Ala.Code 1975, and discharging a firearm into an occupied vehicle, a violation of § 13A-11-61, Ala.Code 1975. The trial court sentenced Jett to life imprisonment for each offense, the sentences to be served concurrently.

The evidence elicited at trial tended to show the following. On July 30, 2004, LaNorris Woods parked his car in the middle of the street in front of his house on Beech Avenue in Birmingham, where he intended to quickly pick up his girlfriend and their daughter to take a trip to Huntsville. As he drove up to his house, Woods noticed a white sport utility vehicle (“SUV”) doing “circles” on his street. (R. 54.)

While Woods was in the house getting his girlfriend, he saw the SUV and heard it blow its horn. Woods knew that his car was blocking the street, so he ran out to move it so the SUV could get by. As he drove his vehicle toward the SUV, Woods said, he saw Jett get out of the front passenger seat and shoot him. He said he could not identify the driver.

As Jett was shooting at him, Woods attempted to drive away, but he ran the car off the road and into the woods. Woods was able to get out of his car and go back to his house, where he asked his girlfriend to call the police and an ambulance. His girlfriend was apparently'unable to place the calls with her telephone, so Woods went to a neighbor for help. The neighbor, Kenneth May, testified that he witnessed the shooting, but he did not say (nor was he asked) whether he saw the shooter. He said he “hit the ground” when the shooting started. (R. 104.) When the shooting stopped, he said, the SUV “just took off real fast,” and he did not see anything else until he saw Woods walking toward his house. (R. 104.) May called emergency 911 and then stayed with Woods until paramedics arrived.

Woods was transported by ambulance to the hospital, where he was admitted for treatment for gunshot wounds to his arms, back, neck, and shoulder.

Woods identified Jett as the person who shot him. Woods testified that he and Jett had been friends until a friend of Woods’s younger brother was shot and killed. Woods testified that he thought Jett and another man had killed his brother’s friend.

The State elicited testimony from Woods that he had been convicted of shooting Jett after the shooting of Woods’s brother’s friend. Woods explained that when he was released from the hospital after being treated for his wounds, the police asked him to come to the police station. At that time, he identified Jett as the person who shot him. At the same time, police arrested Woods for the previous shooting of Jett.

On appeal, Jett contends that the trial court abused its discretion in denying his motion for a new trial based upon newly discovered evidence.

“ ‘ “The appellate courts look with disfavor on motions for new trials based on newly discovered evidence and the decision of the trial court will not be disturbed absent abuse of discretion.” Further, “this court will indulge every presumption in favor of the correctness” of the trial judge’s decision. The trial court is in the best position to determine the credibility of the new evidence.’ ”

Ex parte Heaton, 542 So.2d 931, 933 (Ala.1989), quoting Isom v. State, 497 So.2d 208, 212 (Ala.Crim.App.1986).

“ ‘To establish a right to a new trial based on newly discovered evidence, the [appellant] must show the following: (1) that the evidence will probably change the result if a new trial is granted; (2) that the evidence has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; and (5) that it is not merely cumulative or impeaching. While all five requirements ordinarily must be met, the law has recognized that in certain exceptional circumstances, even if the newly discovered evidence is cumulative or impeaching, if it appears probable from looking at the entire case that the new evidence would change the result, then a new trial should be granted. This Court in Slaughter v. State, 237 Ala. 26, 185 So. 373 (1938), recognized the exception as follows:
“ ‘ “The authorities generally recognize the rule that ordinarily such impeaching or contradicting testimony does not suffice for a new trial, though there are exceptional instances where such proffered proof may justify a reconsideration of the cause.”
‘“Id., 237 Ala. at 27, 185 So. at 373 (emphasis added). Those exceptional circumstances subsequently were defined by this Court in Maund v. State, 254 Ala. 452, 48 So.2d 553 (1950).
“ ‘ “[T]he overruling of a motion for a new trial based upon newly discovered evidence tending only to discredit the State’s witnesses is not error unless upon the whole case it appears probable that the new evidence would change the result.”
“ ‘Id., 254 Ala. at 462, 48 So.2d at 562 (citations omitted) (emphasis added).
“ ‘We recognize the existence of recent caselaw that seems to reject the exception for newly discovered cumulative or impeaching evidence that would probably change the result of a trial. See, e.g., Isom v. State, 497 So.2d 208 (Ala.Crim.App.1986); Baker v. State, 477 So.2d 496 (Ala.Crim.App. 1985); and Bland v. State, 390 So.2d 1098 (Ala.Crim.App.1980). Those cases seem to hold that cumulative or impeaching evidence will never establish a right to a new trial. However, it is evident that in each of those cases, the newly discovered evidence, when viewed in light of the other evidence presented at trial, most likely would not have changed the result. Therefore, a new trial under those circumstances would be unjustified. However, those cases should not be taken as precluding a new trial on the basis of newly discovered evidence simply because the new evidence is cumulative or impeaching, if that evidence would probably change the result if a new trial were granted.’
“(First emphasis added; some citations omitted.)”

Ex parte Layton, 911 So.2d 1052, 1055-56 (Ala.2005) (footnote omitted), quoting Heaton, 542 So.2d at 933-34.

In Story v. State, 439 So.2d 1317, 1322 (Ala.Crim.App.1983), this court quoted with approval Reynolds v. City of Birmingham, 29 Ala.App. 505, 507, 198 So. 360, 361 (1940), which held:

“‘As to the insistence that the newly discovered evidence was merely impeachment of defendant’s alibi, the rule in this regard has its exceptions and such proffered proof, even though simply impeaching may justify a new trial. Slaughter v. State, supra [237 Ala. 26, 185 So. 373 (Ala.1938)]. Moreover, it has been held, and the view seems logical, that if the impeaching testimony tends to destroy or obliterate the effect of the evidence upon which the verdict rested, it is more than impeaching for that its tendency would be to defeat the verdict returned. Dennis v. State, 103 Ind. 142, 2 N.E. 349 (Ind.1885).’ ”

In this case, Jett moved for a new trial on the basis of newly discovered evidence after he learned from other inmates at the jail that Woods was claiming that he knew that another man had shot him, but that he was blaming Jett to get “leverage” against Jett in his case against Woods. (R. 291.) The trial court held a hearing on Jett’s motion, at which the following evidence was adduced.

Brandon Mitchell testified that he was related by marriage to Woods and that they were “frat brothers” in a gang called “Rude Boys.” (R. 302.) At the time of his testimony, Mitchell was being held in the Jefferson County jail on a capital murder charge. Mitchell said that while in jail, Woods “confided in him” that Jett was not the person who had shot Woods and told Mitchell the “actual” shooter’s nickname. He also said that Woods told him he had paid Marquell Savage to testify against Jett at trial.

Mitchell said that Woods, whose conviction for Jett’s shooting was being appealed, told Mitchell that the reason he was blaming Jett for his shooting was that “[Woods] felt like it was leverage on this case. He felt like if he put the case on him, Mr. Jett will drop the charges on him and they’ll drop the charges on each other. Therefore, neither one of them would have a case.” (R. 305.) Mitchell said the first time he told Jett of this information was when he “got in the block” with Jett, who had already been convicted. (R. 306.)

A second inmate at the Jefferson County jail, Stanley Chatman, testified that Woods told him that Jett was not the person who shot him. Woods said he knew who had shot him and he had him “knocked off.” (R. 321.) Chatman said he also heard Woods talking to Savage “in the vent on the ninth floor in his cell,” and Woods was telling Savage to testify that Jett was the one who had shot him and that Savage had personally witnessed the shooting. (R. 321.) He said “you can hear on the vents real good.” (R. 327.) Both Chatman and another inmate testified that the vents were often used as a means of communication among the inmates at the Jefferson County jail.

Chatman said Woods told him that Jett “had put a case on him and he said he was using it for leverage in his case.” (R. 322.) Chatman said Woods told him the person who actually shot him was Damian Smith, and that he had had Smith killed. (R. 322.) Chatman said when he was put in the same cell block with Jett, he told him what Woods had said.

A third inmate, Adrian Christian, also testified that he had heard Woods tell Savage to say Jett was the shooter. Although Woods did not tell Christian who the actual shooter was in his case, Woods did say that “he wasn’t going to go down by himself or something like that” and he was going to “take [Jett] down with him.” (R. 348.)

Finally, another inmate from the Jefferson County jail, Dennis Johnson, testified that Woods told him that Jett was not the person who had shot him. Johnson said Woods

“told me that a dude named Damian shot him, and he said he was going to put it on Mighty Bite [Jett’s nickname] and see if Mighty Bite will drop the case on him so he don’t have to go to court so he can get out. And he said if he dropped the case — if Mighty Bite dropped the case on him, then he’s going to drop the case on Mighty Bite.”

(R. 359.) He said that Woods did not tell him what had happened to Damian Smith.

After hearing arguments from the parties’ counsel, the trial court, without explanation, denied Jett’s motion for new trial.

In its appellate brief, the State argues that the testimony elicited from the inmates at the hearing on the motion for a new trial was merely impeachment testimony and, therefore, could not serve as the basis for a new trial. We agree that the evidence presented was impeachment testimony. However, this is one of those exceptional cases in which the impeaching testimony tends to destroy or obliterate the effect of the evidence upon which the verdict rested.

In Story v. State, supra, Story was convicted of trafficking in marijuana. At trial, evidence demonstrated that Story and her codefendant, the driver of the car, were arrested after a tote bag containing marijuana was discovered in the trunk of the car in which Story was a passenger.

The codefendant testified that he had met Story earlier in the evening and that Story had tried to sell him marijuana. He said eventually Story agreed to spend the night with him, but before getting into his car she took a bag from the trunk of her car and put it into the trunk of his car. He denied ownership of the bag. 439 So.2d at 1319. Other witnesses also testified that they had seen Story sell marijuana from the trunk of her car earlier in the evening.

After Story was convicted, she moved for a new trial based on newly discovered evidence. An undercover police officer testified at the hearing on her motion, saying that he had met Story’s codefen-dant in a separate undercover operation. The codefendant told him that the police had impounded his car and that there was some marijuana in a bag in the trunk, but he blamed it on the girl that was in his car. 439 So.2d at 1320. The codefendant also told the undercover officer that he got some of his friends to “ ‘come and testify that it was her dope and that it was in her car,’ ” and that she had needed a ride, and so the codefendant had transported the girl and her bag. 439 So.2d at 1321. The codefendant acknowledged that the marijuana was his, however. Id.

This court found that the undercover officer’s testimony not only undermined the testimony of the codefendant, but also the testimony of the other witnesses, and that, without that testimony, the State would have failed to make a prima facie case against Story, because that testimony was the only evidence linking Story to the marijuana. As a result, this court said, “ ‘we cannot say that proof of the statements would not probably change the result’ ” of the case against Story. 439 So.2d at 1321 (quoting Houston v. State, 208 Ala. 660, 660, 95 So. 145, 147 (1923)). “This is especially so in light of the apparent neutrality of [the undercover officer] and lack of motive in falsely testifying, as opposed to the obvious potential bias of [the code-fendant’s] friends and acquaintances who testified against appellant. We also note the potentially great weight a jury might give an apparently neutral officer of the law.” 439 So.2d at 1321.

The trial court’s order denying Story’s motion for a new trial was reversed because this court could not say that proof of the statements made by the codefendant would not change the result of Story’s trial.

A similar situation exists in this case. A review of the record shows that the only evidence tying Jett to the crime was the testimony of Woods and Savage. Although bullet casings were found at the scene of the shooting, no weapon was ever recovered or tied to the shooting. There was no fingerprint evidence linking the bullet casings to Jett. May, Woods’s neighbor who witnessed the shooting, did not identify the shooter.

Granted, unlike in Story where an undercover officer testified as to what the codefendant had told him, the inmates who testified at the hearing on the motion for a new trial here are not upstanding citizens whose veracity cannot be doubted. But the veracity of the two witnesses who identified Jett as the shooter — Woods and Savage — is not beyond reproach either.

It is not this court’s role to judge the credibility of witnesses or to weigh evidence. The trial court did not indicate the basis for its decision to deny Jett’s motion for a new trial. We cannot determine from the record whether the credibility of the impeaching witnesses played a role in the trial court’s decision.

However, based upon the record before us, we cannot say that the evidence presented at the motion for a new trial would not probably change the outcome of Jett’s trial. Indeed, evidence that Woods knew he had been shot by someone other than Jett and had blamed Jett in an effort to get Jett to drop his case against Woods may very well lead a jury to reach the opposite result if the evidence had been known at trial.

Furthermore, the record indicates that Jett was not aware of Woods’s statements to other inmates in the Jefferson County jail until after his conviction. The record does not indicate that Jett knew, or should have known, about Woods’s belief that someone other than Jett had shot him until after the trial.

However, “[o]ne condition of the trial court’s granting a new trial on the basis of newly discovered evidence is that the court must believe the evidence presented at the hearing.” McDonald v. State, 451 So.2d 440, 442 (Ala.Crim.App. 1984).

The trial court did not state a basis for its denying Jett’s motion for a new trial. Therefore, we cannot determine whether the basis for the denial of the motion was that the newly discovered evidence constituted impeachment evidence or whether the trial court found that the evidence was simply not credible. As a result, we must remand this cause for the circuit court to clarify the basis for denying Jett’s motion for a new trial. See Farris v. State, 890 So.2d 188, 193 (Ala.Crim.App.2003).

If the trial court’s basis for denying the motion was that it found the evidence constituted impeachment evidence, that finding was error, and the court should reconsider Jett’s claim in light of this opinion. On the other hand, if the trial court’s decision was based upon its finding upon the issue of credibility, the court should make a specific finding regarding the credibility of the newly discovered evidence and determine whether the outcome of Jett’s trial would have been different if jurors had been provided with that new evidence. Fanis, 890 So.2d at 193.

The trial court’s findings shall be filed with this Court within 42 days of the date _ of this opinion. The return to remand shall include the trial court’s written findings of fact and anything else the trial court believes will assist this Court in reviewing this issue.

REMANDED WITH DIRECTIONS.

BASCHAB, P.J., concurs in the result, with opinion. McMILLAN, SHAW, and WISE, JJ., concur in the result.

BASCHAB, Presiding Judge,

concurring in the result.

Although I do not agree with all of the main opinion’s comments and reasoning, I do agree that we should remand this case for the trial court to set forth its reasons for denying the appellant’s motion for a new trial. I also specifically note:

“ ‘The testimony of a witness that a person, other than the defendant, confessed to the witness that he himself committed the crime charged against the defendant, is hearsay and inadmissible. Welsh v. State, 96 Ala. 92, 96, 11 So. 450 (1891) [1892], “Such declarations are hearsay evidence, the weakest, most uncertain, and most dangerous.” Snow v. State, 58 Ala. 372, 375 (1877); Smith v. State, 9 Ala. 990, 995-96 (1846); Prince v. State, 356 So.2d 750, 751 (Ala.Cr.App.1978).’
“Garrison v. State, 416 So.2d 793, 794 (Ala.Cr.App.1982).
“The proposed evidence would not have been admissible at trial because it was hearsay; therefore, the trial court committed no error in denying the appellant’s motion for a new trial. ‘Error does not occur when the trial court denied the motion for new trial based on evidence that would not have been admissible at a new trial.’ King v. State, 574 So.2d 921, 925 (Ala.Cr.App.1990).”

Snyder v. State, 683 So.2d 45, 46-47 (Ala. Crim.App.1996). See also Apicella v. State, 809 So.2d 841 (Ala.Crim.App.2000); McBryar v. State, 368 So.2d 568 (Ala.Crim.App.1979).

      . The trial court instructed the jury that the police had investigated the shooting of Woods's brother’s friend, which had been ruled a justifiable homicide, and that regardless, Jett had not been implicated in that shooting. (R. 38.)

      . Savage testified that he had been at Woods's house at the time of the shooting. He said he heard gunshots and "got down” until the shooting stopped. He said that he then ran to the door, which was made of wood, opened the door, and looked outside. He said he saw "maybe three” people in a white SUV and saw Jett look back at him and point a rifle at him, so he slammed the door and got back down. (R. 152-53.)