author: SEE, Justice.

text:
    Ex parte John Michael WARD. (In re John Michael Ward v. State of Alabama).
    1051818.
    Supreme Court of Alabama.
    June 1, 2007.

      J. Clark Stankoski of Ham Stankoski, L.L.P., Fairhope, for petitioner.
    Troy King, atty. gen., Kevin Newsome, deputy atty. gen., and James R. Houts, asst. atty. gen., for respondent.
   SEE, Justice.

Facts and Procedural History

John Michael Ward was convicted of murder made capital because the victim was under the age of 14. See § 13A-5-40 (a)(15), Ala.Code 1975. The victim was Ward’s four-month-old child. Ward was sentenced to death. The Court of Criminal Appeals affirmed Ward’s conviction and sentence. Ward v. State, 814 So.2d 899 (Ala.Crim.App.2000), cert. denied, 814 So.2d 925 (Ala.2001), and cert. denied, 535 U.S. 907, 122 S.Ct. 1208, 152 L.Ed.2d 145 (2002).

Ward challenges his conviction and sentence in this appeal from the dismissal of his Rule 32, Ala. R.Crim. P., petition alleging ineffective assistance of counsel. Since his trial, Ward has been represented by nine different attorneys during his direct appeal, his Rule 32 petition, and his federal habeas corpus petition. One of these attorneys, David Nichols, was appointed by the trial court to represent Ward on direct appeal. In May 1999, Nichols informed the trial court that Ward had viable claims for postconviction relief, and the trial court appointed Nichols to represent Ward in any Rule 32 petition that would be filed. However, Nichols never filed a Rule 32 petition. In November 2000, this Court appointed James Russell Pigott to represent Ward, and, in March 2001, the Alabama State Bar suspended Nichols’s license to practice law. Nichols did not inform Ward that he had been suspended from practicing law and that he would not be able to represent Ward in his Rule 32 proceedings.

Ward was aware that the time limit was approaching for filing a Rule 32 petition. He filed a pro se motion requesting that the trial court order Nichols to send Ward’s records to Drew Colfax, the attorney who had prepared Ward’s petition for the writ of certiorari to the United States Supreme Court in his direct appeal. After learning that Colfax could not represent him in filing a Rule 32 petition, Ward asked the trial court to order Nichols to send him his file. Ward claimed that his attorneys had lost large portions of his records and that Nichols had never forwarded Ward’s file to Colfax. The trial court did not order Nichols to forward the files to Ward.

Ward filed another pro se motion in July 2002, asking for a copy of the pertinent records in the case so that he could file his Rule 32 petition. The trial court did not respond. That same month, Ward’s family hired A1 Pennington to represent Ward. Pennington informed Ward that he would file the Rule 32 petition “in the very near future, in order that there can be no questions as to its timeliness.... ” Petition at 6. Pennington never filed the Rule 32 petition in the trial court; instead, he filed a petition for a writ of habeas corpus in the United States District Court. Ward moved in the district court for a substitution of counsel, claiming that Pennington had been working to “circumvent [his] best interest-” Petition at 7. After Ward’s motion for substitution of counsel was denied, he requested its reconsideration, stating that “Pennington has outright deceived me by filing the Habeas Corpus as I was led to believe that he was to file the Rule 32 petition.” Petition at 8. The time for filing Ward’s Rule 32 petition expired on August 1, 2003.

Ward filed a complaint with the Alabama State Bar regarding Pennington’s representation. Pennington responded as follows to the complaint: “I took the position from the outset that the Rule 32 as the facts were postured was futile”; Pennington stated that he had made no representation that he would file a Rule 32 petition. The State Bar concluded that no further investigation was warranted.

In October 2004, the State moved to dismiss the petition for the writ of habeas corpus filed in the federal district court, alleging that the petition had been filed three days late. Ward filed a second motion to disqualify Pennington, and Pennington moved for leave to withdraw as Ward’s counsel. The federal district court appointed Greg Hughes as substitute counsel. Hughes filed a response to the State’s motion to dismiss, asking that Ward’s petition for the writ of habeas corpus be stayed to allow Ward to pursue a newly discovered “actual innocence” claim in the Baldwin Circuit Court. Ward’s attorney during the criminal trial, Spencer Davis, Jr., had had an expert, Dr. Chris Sperry,

“review portions of the discovery provided by the State of Alabama dealing with the cause of the death of the infant that gave rise to Mr. Ward’s charges. [Dr. Sperry] advised that in his opinion the cause of the child’s death was more likely Sudden Infant Death Syndrome (SIDS) than suffocation as opined by the State’s expert.”

Davis did not pursue this avenue further because “[he] did not have authorization to hire the expert. The trial had previously been continued and [he] was concerned with receiving the trial judge’s anger by asking for more money and/or a continuance.” The federal court granted the stay, and Hughes filed the Rule 82 petition on November 2, 2005.

However, the Rule 32 petition did not assert that there was newly discovered evidence of Ward’s innocence; instead, it relied solely on ineffective assistance of counsel as the basis of his petition. On December 15, 2005, the State moved to dismiss the Rule 82 petition, and Ward, acting pro se, moved for leave to “add to and to expand upon the issues set forth within the Rule 32 petition.” On December 19, 2005, the trial court dismissed the petition as untimely, finding that “Ward’s Rule 32 petition was filed ... far beyond the two-year limitation period in former Rule 32.2(c)[] and contains only nonjuris-dictional allegations of ineffective assistance of counsel.” On January 5, 2006, the federal district court granted Hughes’s motion to withdraw and appointed the Federal Defenders for the Middle District of Alabama to represent Ward in the federal habeas corpus proceeding. On or about January 9, 2006, Hughes filed in the Baldwin Circuit Court a notice of appeal and a motion to withdraw. On January 10, 2006, the Baldwin Circuit Court granted Ward’s pro se motion to amend his Rule 32 petition.

The Court of Criminal Appeals held that the trial court erred in granting Ward’s motion to amend his Rule 32 petition, and it affirmed, without an opinion, the summary dismissal of Ward’s Rule 32 petition. Ward v. State (No. CR-05-0655, August 18, 2006), 988 So.2d 1078 (Ala.Crim.App.2006) (table). We granted Ward’s petition to review two issues: first, whether the Court of Criminal Appeals erred in holding in its unpublished memorandum that the trial court had no power to grant a motion to amend filed after the entry of the judgment and in holding that the trial court could not have construed the motion to amend as a motion for reconsideration; and, second, whether the limitations period in Rule 32.2(c), Ala. R.Crim. P., is jurisdictional, and, if not, whether this Court should adopt the doctrine of equitable tolling.

Analysis

I.

Ward first argues that the decision of the Court of Criminal Appeals, holding that the trial court erred in granting Ward’s motion to amend his Rule 32 petition after the notice of appeal had already been filed, presents a material question of first impression for this Court. The Court of Criminal Appeals rejected Ward’s contention that the trial court construed Ward’s motion to amend as a motion to reconsider (and it also rejected his contention that, when the trial court granted the motion to amend, it effectively withdrew its order denying his Rule 32 petition). The Court of Criminal Appeals noted that Ward had mailed his motion to the trial court before the trial court had denied his Rule 32 petition; therefore, the Court of Criminal Appeals concluded, “Ward could not possibly have requested reconsideration of a ruling that had not yet occurred.”

Further, according to the Court of Criminal Appeals, the motion to amend in substance requested permission to amend the Rule 32 petition, and it concluded that there was no evidence in the record indicating that the trial court intended to set aside its summary dismissal of the Rule 32 petition. Because Rule 32.7(b), Ala. R. Crim. P., allows amendments to pleadings only “prior to the entry of judgment,” the Court of Criminal Appeals held that the trial court erred in granting the motion to amend the Rule 32 petition after it had denied the petition. Because, it reasoned, granting the motion was not the equivalent of setting aside the denial of the petition, the Court of Criminal Appeals held that the notice of appeal conferred jurisdiction upon it to hear the appeal.

Ward argues that the trial court could, and did, construe the motion to amend as a motion to reconsider. First, he notes that a trial court retains jurisdiction over a Rule 32 petition for 30 days after the entry of judgment. See Loggins v. State, 910 So.2d 146, 148 (Ala.Crim.App.2005) (“It is well settled that a circuit court generally retains jurisdiction to modify a judgment for only 30 days after the judgment is entered.”). He then points out that Rule 32.10(a), Ala. R.Crim. P., allows any party to appeal the decision of the trial court on a Rule 32 petition according to the procedures of the Alabama Rules of Appellate Procedure. Rule 4(b)(1), Ala. RApp. P., provides that when a timely postjudgment motion has been filed, a notice of appeal filed while the postjudgment motion is pending is treated as having been filed on the date the court denies that motion. A motion to amend may not be made after a judgment is entered on a Rule 32 petition, Rule 32.7(b), Ala. R. Crim. P., and thus such a motion is not a postjudgment motion under Loggins or Rule 4(b)(1), Ala. R.App. P. Ward argues that the trial court construed the motion to amend as a motion to reconsider. According to Ward, if a motion to reconsider the ruling on his Rule 32 petition was pending, the Court of Criminal Appeals lacked jurisdiction to affirm the summary dismissal, and the trial court could still entertain the Rule 32 petition.

Ward contends that the motion to amend must be construed as a motion to reconsider because otherwise the trial court’s action in granting permission to amend would be “pointless and nonsensical.” Petition at 20. Because trial courts are presumed to know and to follow existing law, Stewart v. State, 730 So.2d 1203, 1221 (Ala.Crim.App.1996), and because we will affirm the judgment of the trial court if it was correct on any rationale, Kilgore v. State, 643 So.2d 1015, 1018 (Ala.Crim.App.1993), Ward argues, we must presume that the trial court intended to grant a motion to reconsider.

The State responds, first, that Ward had no authority to file the pro se motion to amend when he was represented by appointed counsel at the time. Second, the State argues that the motion to amend could not reasonably be considered a motion for reconsideration and that, because Rule 32.7(b), Ala. R.Crim. P., permits amendments in Rule 32 proceedings only “prior to the entry of judgment,” the motion to amend should have been denied. Third, the State points out that none of the trial court’s actions are consistent with the theory that the trial court intended to reconsider its dismissal of the petition; the State points out that “[t]he circuit court has not attempted to hold any additional hearings, status conferences, or otherwise suggest that it believes jurisdiction still lies in that [c]ourt.” Answer at 16. The State also notes that the judgment was never ordered to be set aside on the case-action-summary sheet, and Ward’s counsel of record also treated the petition as denied and pursued an appeal.

Ward appears to be correct that this Court has never addressed the propriety of a trial court’s construing an untimely motion to amend a Rule 32 petition as a motion to reconsider. However, the facts of this case do not demonstrate that the trial court so construed Ward’s motion to amend. In Ward’s pro se motion, entitled simply “Motion,” Ward asked the trial court to “grant permission for defendant to add to and expand upon the issues in the petition on file.” Ward stated that he needed more time to convey to his attorney “the complex nature of the details [of the issues raised in the petition] without running out of time.” The trial court’s only statement in granting Ward’s motion was “motion granted.”

Although the Court of Criminal Appeals reasoned that ‘Ward could not possibly have requested reconsideration of a ruling that had not yet occurred,” the question is whether the trial court could have construed the motion as one requesting reconsideration of the petition. In Water Works & Sewer Board of Talladega v. Consolidated Publishing, Inc., 892 So.2d 859, 864 (Ala.2004), we stated:

“This Court has long held that it may consider court filings according to their substance, not their label. ...
“ ‘... This Court has stated that it is “committed to the proposition that it will treat a motion (or other pleading) and its assigned grounds according to its substance.” Further, the Court has held that “[t]he substance of a motion and not its style determines what kind of motion it is.” ’ ”

(Citations omitted.) A motion to reconsider is generally a request that the trial court take a second look at what has already come before it; such a motion generally does not encompass a movant’s presentation of new facts or new evidence not previously presented to the trial court. See Ex parte Dowling, 477 So.2d 400, 403 (Ala.1985) (construing a motion for relief from judgment under the Alabama Rules of Civil Procedure as a motion for reconsideration because the facts alleged in the second postjudgment motion were known to the movant when he filed his original postjudgment motion); see also Adkison v. Adkison, 957 So.2d 1135, 1137 (Ala.Civ. App.2006) (“Because the husband’s second postjudgment motion asserted as its basis the very same facts as his first post-judgment motion instead of asserting facts that were unknown to the husband when he filed his first postjudgment motion, his second postjudgment motion in reality constituted a motion to reconsider the denial of the husband’s first postjudgment motion rather than a Rule 60(b) motion.”).

Here, Ward’s motion stated that he wanted to supply new facts and arguments for the trial court to consider; Ward requested the opportunity to “add to and expand upon the issues set forth within the Rule 32 petition.” Because Ward sought to present new information — not to have the prior information reconsidered — the trial court could not reasonably have construed the motion to amend as a motion for reconsideration. For this reason, it does not appear that the Court of Criminal Appeals improperly held the trial court in error for granting Ward’s motion to amend after judgment had been entered. See Rule 32.7(b), Ala. R.Crim. P. (“Amendments to pleadings may be permitted at any stage of the proceedings prior to the entry of judgment.”). The Court of Criminal Appeals therefore had jurisdiction to consider Ward’s appeal.

II.

Ward argues that the Court of Criminal Appeals erred in affirming the trial court’s summary dismissal of Ward’s petition on the basis that it was untimely. First, he argues that the limitations period provided in Rule 32.2(c), Ala. R.Crim. P., is not jurisdictional. Second, he argues that equitable tolling is available to suspend the running of the limitations period in Rule 32.2(c). The Court of Criminal Appeals held that the limitations period is jurisdictional and that equitable tolling therefore is not available under Rule 32. Both issues raise questions of first impression for this Court’s resolution.

A.

Although the Court of Criminal Appeals has consistently held that the limitations period set forth in Rule 32.2(c), Ala. R.App. P., is jurisdictional, this Court apparently has never squarely addressed the issue. See Ex parte Hutcherson, 847 So.2d 386, 388 (Ala.2002) (suggesting that the limitations period in Rule 32.2(c) is a “defense”); see also 847 So.2d at 388 (Johnstone, J., concurring specially) (asserting that no case from this Court has held that Rule 32.2(c) creates a jurisdictional bar).

Rule 32.2(c), Ala. R.Crim. P., provides that “the court shall not entertain any petition” brought under certain specified grounds unless the petition was timely filed. Ward points out, however, that the Alabama Constitution, in empowering this Court to promulgate court rules, specifically provides that any such rule “shall not ... affect the jurisdiction of circuit and district courts.” Amendment No. 328, § 6.11 (Art. VI, § 150, Ala. Const. 1901 (Off.Recomp.)). To interpret Rule 32.2(c) as establishing a jurisdictional bar prohibiting out-of-time petitions, he argues, runs afoul of this constitutional provision. We agree.

The Court of Criminal Appeals has suggested that the limitations provision found in Rule 32.2(c) is not jurisdictional. See Howard v. State, 616 So.2d 398 (Ala.Crim.App.1993) (holding that the State had waived the limitations defense found in Rule 32.2(c) by failing to raise it), overruled by Williams v. State, 783 So.2d 135 (Ala.Crim.App.2000); Jackson v. State, 612 So.2d 1356, 1357 (Ala.Crim.App.1992) (“Generally, the statute of limitations is an affirmative defense that must be affirmatively pleaded or it is waived.”). However, the Court of Criminal Appeals later held in Williams that “the failure to file a Rule 32 petition within the two-year limitations period is a jurisdictional defect that can be noticed at any time and is not waived by the failure of the State to assert it.” 783 So.2d at 137. Thus, the Court of Criminal Appeals has interpreted Rule 32.2(c) as depriving the trial court of jurisdiction to hear an untimely Rule 32 petition. See, e.g., Williams, 783 So.2d at 137 (“In this case, the appellant filed his Rule 32 petition more than two years[] after this court issued a certificate of judgment. Therefore, his petition was not timely, and the circuit court did not have jurisdiction to grant him relief pursuant to Rule 32.1(f), Ala. R.Crim. P. Accordingly, we dismiss this appeal.”).

None of the cases on which the Court of Criminal Appeals relied in Williams, however, support that court’s holding that the limitations provision in Rule 32.2(c) is jurisdictional. Instead, it appears that the Court of Criminal Appeals in Williams and its progeny conflated statutes of limitations with procedural limitations periods such as the one in Rule 32.2(c). The court relied primarily on Hines v. State, 516 So.2d 937, 938 (Ala.Crim.App.1987), in which the petitioner challenged his conviction on the ground that the three-year statutory limitations period established by the legislature for the prosecution of the offense of incest had expired. The Court of Criminal Appeals held that, because “the statute of limitations is a jurisdictional matter,” the petitioner had stated a valid claim for relief. The court in Williams also cited Ex parte Campbell, 784 So.2d 323 (Ala.2000), in support of its holding. However, Campbell likewise dealt with the statute of limitations for prosecuting a criminal case, and we stated that “[bjecause the statute of limitations is jurisdictional and an indictment returned after the expiration of the limitations period of the statute is void, Campbell’s guilty plea did not waive this issue.” 784 So.2d at 325. Finally, the court in Williams cited Hunt v. State, 642 So.2d 999, 1018 (Ala.Crim.App.1993), another case involving the statute of limitations applicable to a criminal offense. See Hunt, 642 So.2d at 1018 (“A statute of limitations defect is considered ‘jurisdictional’ in the sense that the trial court is not authorized to pronounce the accused guilty of a time-barred offense.”).

The Court of Criminal Appeals’ holding that the limitations provision in Rule 32.2(c) is jurisdictional cannot be reconciled with Art. VI, § 150, Ala. Const. 1901 (Off.Recomp.) (added by Amendment No. 328, § 6.11), which provides:

“The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts; provided, however, that such rules shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts or venue of actions therein.... These rules may be changed by a general act of statewide application.”

As we have consistently held:

“ ‘ “The Constitution of Alabama, like that of the nation and of the other states, is the supreme law within the realm and sphere of its authority. Subject only to the restraints resulting from the Constitution of the United States, the Constitution of Alabama is the highest form and expression of law that exists in the state.” ’ ”

Folsom v. Wynn, 631 So.2d 890, 896 (Ala.1993) (quoting Gafford v. Pemberton, 409 So.2d 1367, 1374 (Ala.1982), quoting in turn Johnson v. Craft, 205 Ala. 386, 393, 87 So. 375, 380 (1921)). For this reason, in Ward v. State, 540 So.2d 1350, 1351 (Ala.1988), we recognized that Amendment No. 328, § 6.11 (now § 150 (OffiRecomp.)), limits our ability to promulgate court rules that enlarge or restrict the jurisdiction of the circuit court, and we noted the general rule that a court rule cannot “enlarge or restrict” the jurisdiction of the courts.

“ ‘ “In construing a constitutional provision, the courts have no right to broaden the meaning of words used and, likewise, have no right to restrict the meaning of those words.” ’ This Court is ‘ “not at liberty to disregard or restrict the plain meaning of the provisions of the Constitution.” ’ ” City of Bessemer v. McClain, 957 So.2d 1061, 1092 (Ala.2006) (on second application for rehearing) (quoting City of Birmingham v. City of Vestavia Hills, 654 So.2d 532, 538 (Ala. 1995), quoting in turn McGee v. Borom, 341 So.2d 141,143 (Ala.1976)). Section 150 states that this Court may not promulgate rules that “affect” the jurisdiction of the circuit court. Thus, the Court of Criminal Appeals’ holding that a petitioner’s failure to comply with the timeliness requirement of Rule 32.2(c) deprives the trial court of jurisdiction to hear his petition runs afoul of § 150, Ala. Const.1901. See Ex parte Clemons, [Ms. 1041915, May 4, 2007] — So.3d-,-(Ala.2007) (holding that in light of Art. VI, § 150, Ala. Const.1901, the grounds of preclusion set forth in Rule 32.2(a), Ala. R.App. P., do not limit the jurisdiction of the trial court). We, therefore, hold that the limitations provision of Rule 32.2(c) is an affirmative defense and not a jurisdictional bar.

B.

Because the State raised the expiration of the limitations period in its motion to dismiss Ward’s Rule 32 petition, we must address Ward’s argument that equitable tolling is available under Rule 32.2(c). The Court of Criminal Appeals, in its unpublished memorandum, held that equitable tolling is unavailable to suspend the running of the Rule 32.2(c) limitations period. Ward appears to be correct that this Court has never addressed this issue.

Although we today hold that the limitations provision in Rule 32.2(c) is not a jurisdictional bar, it is nonetheless written in mandatory terms. Rule 32.2(c) provides that “the court shall not entertain any petition for relief from a conviction or sentence” that is not timely. In prior cases in which it concluded that equitable tolling is unavailable, the Court of Criminal Appeals based its holding on the mandatory “shall” language found in Rule 32.2(c) and the fact that no Alabama court has ever held that there is an exception to the limitations period. See, e.g., Arthur v. State, 820 So.2d 886, 889-90 (Ala.Crim.App.2001) (holding that there is no exception to Rule 32.2(c) and that the limitations period is jurisdictional). However, this Court has never held that equitable tolling is not available in a case such as this one. Moreover, because Rule 32.2(c) does not establish a jurisdictional bar, the trial court has the power to hear an untimely petition because the running of the limitations period would “not divest the circuit court of the power to try the case.” Ex parte Seymour, 946 So.2d 536, 539 (Ala.2006).

Further, as Ward points out, under federal habeas corpus practice, the federal courts have held that equitable tolling is available for a § 2244 petition, notwithstanding that the word “shall” appears in 28 U.S.C. § 2244(d)(1) (establishing procedures for petitions for the writ of habeas corpus). See, e.g., Baldayaque v. United States, 838 F.3d 145, 153 (2d Cir.2003) (holding that equitable tolling may be available where the attorney’s behavior was outrageous or the attorney’s incompetence was extraordinary); Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003) (allowing equitable tolling where the petitioner’s attorney failed to file the petition and failed to return the petitioner’s file despite multiple requests from the petitioner); Sandvik v. United States, 177 F.3d 1269 (11th Cir.1999) (allowing equitable tolling in cases of extraordinary circumstances beyond the petitioner’s control and unavoidable even with the exercise of diligence).

We hold that equitable tolling is available in extraordinary circumstances that are beyond the petitioner’s control and that are unavoidable even with the exercise of diligence. We recognize that “[i]n a capital case such as this, the consequences of error are terminal, and we therefore pay particular attention to whether principles of ‘equity would make the rigid application of a limitation period unfair’ and whether the petitioner has ‘exercised reasonable diligence in investigating and bringing [the] claims.’ ” Fahy v. Horn, 240 F.3d 239, 245 (3d Cir.2001) (quoting Miller v. New Jersey Dep’t of Carr., 145 F.3d 616, 618 (3d Cir.1998)). Nevertheless, “the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule.” United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.2000).

Finally, we must address the petitioner’s burden of demonstrating that he or she is entitled to the relief afforded by the doctrine of equitable tolling. Rule 32.7(d), Ala. R.Crim. P., allows the trial court to summarily dismiss a Rule 32 petition that, on its face, is precluded or fails to state a claim, and we have held that the trial court may properly summarily dismiss such a petition without waiting for a response to the petition from the State. Bishop v. State, 608 So.2d 345, 347-48 (Ala.1992) (“ ‘Where a simple reading of a petition for post-conviction relief shows that, assuming every allegation of the petition to be true, it is obviously without merit or is precluded, the circuit court [may] summarily dismiss that petition without requiring a response from the district attorney.’”). Although the Rules of Criminal Procedure initially place the burden on the State to plead any ground of preclusion, the ultimate burden is on the petitioner to disprove that a ground of preclusion applies. Rule 32.3, Ala. R.Crim. P.

Because the limitations provision is mandatory and applies in all but the most extraordinary of circumstances, when a petition is time-barred on its face the petitioner bears the burden of demonstrating in his petition that there are such extraordinary circumstances justifying the application of the doctrine of equitable tolling. See Spitsyn v. Moore, 345 F.3d at 799 (holding that the burden is on the petitioner for the writ of habeas corpus to show that the exclusion applies and that the “extraordinary circumstances” alleged, rather than a lack of diligence on his part, were the proximate cause of the untimeliness); Drew v. Department of Corr., 297 F.3d 1278, 1286 (11th Cir.2002) (“The burden of establishing entitlement to this extraordinary remedy plainly rests with the petitioner.”). Thus, when a Rule 32 petition is time-barred on its face, the petition must establish entitlement to the remedy afforded by the doctrine of equitable tolling. A petition that does not assert equitable tolling, or that asserts it but fails to state any principle of law or any fact that would entitle the petitioner to the equitable tolling of the applicable limitations provision, may be summarily dismissed without a hearing. Rule 32.7(d), Ala. R.Crim. P.

Conclusion

The trial court could not reasonably have construed Ward’s motion to amend as a motion to reconsider that would have held the notice of appeal in abeyance; therefore, we affirm the Court of Criminal Appeals’ decision that it had jurisdiction to consider Ward’s appeal. We conclude, however, that the Court of Criminal Appeals erred in holding that Rule 32.2(c), Ala. R.Crim. P., creates a jurisdictional bar that precludes application of the doctrine of equitable tolling; therefore, we reverse its judgment in that respect and remand the cause for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

COBB, C.J., recuses herself.

      . See Rule 32.2(c), Ala. R.Crim. P., "Court Comment of January 27, 2004, to Amendment to Rule 32.2 Effective August 1, 2002.” The Court of Criminal Appeals issued its certificate of judgment on September 7, 2001; thus, Ward had one year from August 1, 2002, within which to file his Rule 32 petition.

      . The limitations period in Ward's case was actually slightly less than two years. See note l.

      . The State does not squarely address Ward’s argument that Art. VI, § 150, Ala. Const. 1901 (Off.Recomp.), prevents this Court from holding that Rule 32.2(c), Ala. R.Crim. P., affects the jurisdiction of the trial court. Instead, the State argues that, "[a]lthough courts are required to 'say what the law is’ when presented with legislation or executive orders of questionable constitutionality, a circuit court cannot overrule, modify, or otherwise supersede a ruling of this Court.... [A] circuit court is an inferior court that must apply this Court’s rules as written. ” Answer at 20. The State cites Marshall v. State, 884 So.2d 900 (Ala.2003), for the proposition that only this Court, and not the Court of Criminal Appeals, may amend rules of practice and procedure, arguing that the Court of Criminal Appeals had no option but to obey Rule 32.2(c), Ala. R.Crim. P., and to affirm the summary dismissal of the petition.

      . Rule 32.2(c) was amended effective August 1, 2002, to change the limitations period to one year.

      . In Clemons, we held that the preclusion grounds set out in Rule 32.2(a), Ala. R.Crim. P., are affirmative defenses available to the State, not jurisdictional bars that deprive the trial court of the power to hear a Rule 32 petition. — So.3d at-. Under the reasoning of Clemons, the limitations provision of Rule 32.2(c) is also an affirmative defense that may be waived by the State rather than a jurisdictional bar and may be raised by the appellate court sua sponte “[ojnly in extraordinary circumstances.” Clemons, — So.3d at-.


source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    Ex parte John Michael WARD. (In re John Michael Ward v. State of Alabama).
    1070397.
    Supreme Court of Alabama.
    Feb. 19, 2010.

      J. Clark Stankoski of Stankoski, L.L.P., Fairhope, for petitioner.
    Troy King, atty. gen., and Thomas R. Govan, Jr., asst. atty. gen., for respondent.

       Justice Shaw was a member of the Court of Criminal Appeals when that court considered this case.

   LYONS, Justice.

John Michael Ward petitioned this Court for a writ of certiorari to review whether the Court of Criminal Appeals erred in affirming the Baldwin Circuit Court’s summary denial of his Rule 82, Ala. R.Crim. P., petition for postconviction relief. We issued the writ of certiorari to review whether the doctrine of equitable tolling we adopted in Ward’s earlier appeal of the dismissal of his Rule 32 petition is applicable to him. For the reasons discussed below, we hold that Ward should be allowed to benefit from the doctrine of equitable tolling, and we reverse the judgment of the Court of Criminal Appeals and remand the case.

I. Facts and Procedural History

Ward was convicted of capital murder in the death of his four-month-old son and was sentenced to death in 1998. The murder was made capital because the victim was less than 14 years of age. § 13A-5-40(a)(15), Ala.Code 1975. On direct appeal, the Court of Criminal Appeals affirmed Ward’s conviction and his sentence. Ward v. State, 814 So.2d 899 (Ala.Crim. App.2000), cert. denied, 814 So.2d 925 (Ala. 2001), cert. denied, 535 U.S. 907, 122 S.Ct. 1208, 152 L.Ed.2d 145 (2002) (“Ward I”).

Ward filed a Rule 32 petition for post-conviction relief on November 2, 2005. The time for filing his Rule 32 petition had expired on August 1, 2003, however, and the trial court summarily dismissed Ward’s petition. The Court of Criminal Appeals affirmed, without an opinion, the trial court’s summary dismissal of the petition. Ward v. State (No. CR-05-0655), 988 So.2d 1078 (Ala.Crim.App.2006) (table) (“Ward II”). We granted certiorari review to address two issues, one of which was “whether the limitations period in Rule 32.2(c), Ala. R.Crim. P.,[] is jurisdictional, and, if not, whether this Court should adopt the doctrine of equitable tolling.” Ex parte Ward, 46 So.3d 888, 891 (Ala.2007) (“Ward III ”). We held that the time limitation imposed in Rule 32.2(c) is not jurisdictional and that “equitable tolling is available in extraordinary circumstances that are beyond the petitioner’s control and that are unavoidable even with the exercise of diligence.” Ward III, 46 So.3d at 897. We then concluded that “the Court of Criminal Appeals erred in holding that Rule 32.2(c), Ala. R.Crim. P., creates a jurisdictional bar that precludes application of the doctrine of equitable tolling,” and we “reverse[d] its judgment in that respect and remand[ed] the cause for further proceedings consistent with th[e] opinion.” Ward III, 46 So.3d at 898.

The complex circumstances surrounding the nearly two-year delay between the running of the limitations period in Rule 32.2(c) and Ward’s filing of his Rule 32 petition are addressed in Ward III. For purposes of this opinion, we note that Ward has been represented by nine different attorneys during his direct appeal, his Rule 32 petition, and a petition for a writ of habeas corpus filed in federal court. One of those attorneys was later suspended from practicing law, another lost portions of Ward’s file, and another, Ward says, told Ward’s family that he would file a Rule 32 petition on Ward’s behalf before the one-year deadline in Rule 32.2(c) expired but did not do so. The attorney who eventually filed Ward’s Rule 32 petition asked the federal court to stay Ward’s habeas corpus petition to allow him to pursue in the state court a claim of actual innocence based on newly discovered evidence. The federal court granted the stay, and Ward’s Rule 32 petition was filed on November 2, 2005. However, instead of asserting a claim of newly discovered evidence tending to prove Ward’s innocence, the Rule 32 petition relied solely on ineffective-assistance-of-counsel claims. The petition failed to set forth any justification for its untimeliness. It stated only that no timely Rule 32 petition had been filed because Ward’s previous attorneys had not filed any petition and that Ward, who is not trained in the law, had assumed that all legal requirements to obtain postconviction review were being met. Ward’s present counsel was appointed in 2006 while his appeal in Ward II was pending. Ward asserted the doctrine of equitable tolling for the first time in his brief to the Court of Criminal Appeals in Ward II.

After this Court reversed its judgment and remanded the case in Ward III, the Court of Criminal Appeals, in an unpublished memorandum, again affirmed the trial court’s summary dismissal of Ward’s Rule 32 petition. Ward v. State (No. CR-05-0655, August 17, 2007), 14 So.3d 196 (Ala.Crim.App.2007)(table) (“Ward IV”). The Court of Criminal Appeals, in its unpublished memorandum, held that the trial court properly denied Ward’s petition on the ground that it was time-barred by Rule 32.2(c) and further held that the doctrine of equitable tolling was not available to Ward so as to suspend the running of the limitations period because “Ward did not assert the doctrine of equitable tolling in his petition, nor did he plead any facts or principles of law regarding equitable tolling in his petition.” The Court of Criminal Appeals pointed out in its unpublished memorandum in Ward IV that the facts and legal principles supporting Ward’s argument for equitable tolling appeared only in his principal and reply briefs and in an untimely motion to supplement the record that the trial court granted. We again granted certiorari review to consider whether Ward should be allowed an opportunity to present his evidence in support of equitable tolling to the trial court for consideration.

II. Analysis

In its unpublished memorandum in Ward IV, the Court of Criminal Appeals quoted from our opinion in Ward III as follows:

“ ‘Finally, we must address the petitioner’s burden of demonstrating that he or she is entitled to the relief afforded by the doctrine of equitable tolling. Rule 32.7(d), Ala. R.Crim. P., allows the trial court to summarily dismiss a Rule 32 petition that, on its face, is precluded or fails to state a claim, and we have held that the trial court may properly summarily dismiss such a petition without waiting for a response to the petition from the State. Bishop v. State, 608 So.2d 345, 347-48 (Ala.1992) (“ “Where a simple reading of a petition for post-conviction relief shows that, assuming every allegation of the petition to be true, it is obviously without merit or is precluded, the circuit court [may] summarily dismiss that petition without requiring a response from the district attorney.’ ”). Although the Rules of Criminal Procedure initially place the burden on the State to plead any ground of preclusion, the ultimate burden is on the petitioner to disprove that a ground of preclusion applies. Rule 32.3, Ala. R.Crim. P.
“ ‘Because the limitations provision is mandatory and applies in all but the most extraordinary of circumstances, when a petition is time-barred on its face the petitioner bears the burden of demonstrating in his petition that there are such extraordinary circumstances justifying the application of the doctrine of equitable tolling. See Spitsyn v. Moore, 345 F.3d [796,] 799 [(9th Cir. 2003) ] (holding that the burden is on the petitioner for the writ of habeas corpus to show that the exclusion applies and that the “extraordinary circumstances” alleged, rather than a lack of diligence on his part, were the proximate cause of the untimeliness); Drew v. Department of Corr., 297 F.3d 1278, 1286 (11th Cir. 2002) (“The burden of establishing entitlement to this extraordinary remedy plainly rests with the petitioner.”). Thus, when a Rule 32 petition is time-barred on its face, the petition must establish entitlement to the remedy afforded by the doctrine of equitable tolling. A petition that does not assert equitable tolling, or that asserts it but fails to state any principle of law or any fact that would entitle the petitioner to the equitable tolling of the applicable limitations provision, may be summarily dismissed without a hearing. Rule 32.7(d), Ala. R.Crim. P.’ ”

(Quoting Ward III, 46 So.3d at 897-98.) Based on the above-quoted portion of this Court’s opinion in Ward III, the Court of Criminal Appeals concluded that the trial court’s summary denial of Ward’s Rule 32 petition was proper because Ward did not assert the doctrine of equitable tolling in his Rule 32 petition.

Especially pertinent to this case, however, is the paragraph in Ward III that precedes the above-quoted material relied upon by the Court of Criminal Appeals in Ward TV. We there stated:

“We hold that equitable tolling is available in extraordinary circumstances that are beyond the petitioner’s control and that are unavoidable even with the exercise of diligence. We recognize that ‘[i]n a capital case such as this, the consequences of error are terminal, and we therefore pay particular attention to whether principles of “equity would make the rigid application of a limitation period unfair” and whether the petitioner has “exercised reasonable diligence in investigating and bringing [the] claims.” ’ Fahy v. Horn, 240 F.3d 239, 245 (3d Cir.2001) (quoting Miller v. New Jersey Dep’t of Corr., 145 F.3d 616, 618 (3d Cir.1998)). Nevertheless, ‘the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule.’ United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.2000).”

Ward III, 46 So.3d at 897.

The dispositive issue before us is whether the Court of Criminal Appeals correctly held that the doctrine of equitable tolling is not available to Ward because he failed to assert it in the Rule 32 petition filed by previous counsel on November 2, 2005, before we released our opinion in Ward III on June 1, 2007, in which we recognized as a matter of first impression the availability of equitable tolling to a Rule 32 petitioner. In light of the fact that the doctrine of equitable tolling is a newly recognized exception to the limitations provision of Rule 32.2(c), that it was Ward who argued successfully before this Court that the doctrine should be adopted, and that this is a capital case, we hold that Ward should have the opportunity to assert the doctrine of equitable tolling.

The United States Supreme Court has held that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.” Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). This Court recognizes the applicability of new rules to pending cases that are not yet final. See, e.g., Ex parte Waldrop, 859 So.2d 1181, 1184 (Ala.2002). In Ex parte Martinez, [Ms. 1061237, May 29, 2009] — So.3d -(Ala.2009), we held that a defendant whose petition for a writ of certio-rari was pending when we decided Ward III was entitled to assert the doctrine of equitable tolling as it related to his Rule 32 petition. We stated:

“While Martinez’s certiorari petition was pending, this Court issued its opinion in [Ward III]. Martinez did not have the benefit of Ward [III ] to afford him the opportunity to argue the equitable tolling of the limitations period. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand the case to that court for consideration of Martinez’s claim that he is entitled to the remedy afforded by the doctrine of equitable tolling and, if it decides that he is, whether the trial court was correct in denying Martinez’s petition.”

Martinez, — So.3d at -. A review of our summary in Martinez of the claims Martinez argued in his Rule 32 petition reflects that the only claim that could arguably be said to assert the doctrine of equitable tolling was a claim that the limitations period of Rule 32.2(c) should not apply in his case “because, he says, as a native of Guatemala who does not speak English, he faced significant obstacles in pursuing postconviction review.” — So.3d at-. Martinez was entitled to assert the newly recognized doctrine of equitable tolling on remand; likewise, Ward is entitled to assert the doctrine, which was adopted in his case.

Moreover, Ward was the petitioner who argued in his petition for certiorari review that this,Court should adopt the doctrine of equitable tolling in regard to the limitations period of Rule 32. In civil cases, although a new rule of law is generally applied prospectively only, it is applied retroactively in the case in which it is adopted. As we stated in Griffin v. Unocal Corp., 990 So.2d 291, 293 (Ala.2008), the party who prevails in bringing about a change in the law should be rewarded for his or her efforts. Even though Ward’s argument for equitable tolling of the limitations period of Rule 32.2(c) was not raised in his Rule 32 petition, he argued for the new rule in his appeal to the Court of Criminal Appeals and in his certiorari petition to this Court, thus benefiting petitioners to come after him. He should certainly benefit as well.

Finally, this is a capital case where the consequences of error are terminal. As we pointed out in Ward III, we pay particular attention in a capital case to whether rigid application of a limitations period would be unfair and whether the petitioner exercised reasonable diligence in investigating and bringing the claims. In Ward’s case, the due-process guarantee of fundamental fairness of the Fourteenth Amendment to the United States Constitution is implicated if we fail to allow Ward the benefit of the doctrine of equitable tolling that was adopted as a result of his efforts solely because he did not include facts or legal principles in support of the doctrine in a petition filed over a year and a half before this Court recognized the doctrine in a case in which he urged its adoption. In light of all the circumstances presented by this case, we believe that Ward should have an opportunity to present to the trial court his evidence and arguments in support of the equitable tolling of the limitations period of Rule 32.2(c) for consideration on their merits. The Court of Criminal Appeals erred in denying him the benefit of the newly adopted rule when it affirmed the trial court’s summary dismissal of Ward’s Rule 32 petition based on the time bar in Rule 32.2(c).

III. Ward’s Motion to Supplement the Statement of Facts and the Record

Ward has filed a motion to supplement the statement of facts and the record in order to bring to this Court’s attention on certiorari review facts that were not presented to the Court of Criminal Appeals in his application for rehearing and documents that are not included in the record. Those facts and documents provide evidentiary support for Ward’s equitable-tolling argument, which should be presented to the trial court on remand. We therefore deny Ward’s motion to supplement the facts and the record in this case.

IV. Conclusion

Because we conclude that Ward should have an opportunity to assert his claim that the doctrine of equitable tolling should be applied to the limitations period of Rule 32.2(c) and his Rule 32 petition considered on its merits, despite the fact that his equitable-tolling argument was not included in the Rule 32 petition filed on November 2, 2005, we reverse the judgment of the Court of Criminal Appeals and remand the case for that court, in turn, to remand it to the trial court for an eviden-tiary hearing on the merits of Ward’s equitable-tolling claim and a determination as to whether Ward is entitled to file an out-of-time Rule 32 petition.

MOTION TO SUPPLEMENT DENIED; REVERSED AND REMANDED.

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

COBB, C.J., and SHAW, J., recuse themselves.

      . Rule 32.2(c), Ala. R.Crim. P., states, in pertinent part:
      "Subject to the further provisions hereinafter set out in this section, the court shall not entertain any petition for relief from a conviction or sentence on the grounds specified in Rule 32.1(a) and (f), unless the petition is filed: (1) In the case of a conviction appealed to the Court of Criminal Appeals, within one (1) year after the issuance of the certificate of judgment by the Court of Criminal Appeals.... ”

      . In Ward III, we did not limit the application of equitable tolling to capital cases. We note, however, that such an exception to the rule is available in any case only in extraordinary circumstances.


author: WELCH, Judge.

text:
    John Michael WARD v. STATE of Alabama.
    CR-05-0655.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 2010.

      Clark Stankoski, Fairhope, for appellant.
    Troy King, atty. gen., and James R. Houts, asst. atty. gen., and Thomas Govan, deputy atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

WELCH, Judge.

John Michael Ward was convicted of capital murder in the death of his four-month-old son, see § 13A-5-40(a)(15), Ala. Code 1975, and was sentenced to death in 1998. Ward’s conviction and death sentence were affirmed on direct appeal. Ward v. State, 814 So.2d 899 (Ala.Crim.App.2000)(“Ward I”). Ward filed a Rule 32, Ala. R.Crim. P., petition for postconviction relief on November 2, 2005. Because the time for filing his Rule 32 petition had expired, the trial court summarily dismissed Ward’s petition. The summary dismissal was affirmed by this Court without an opinion. Ward v. State (No. CR-05-0655), 988 So.2d 1078 (Ala.Crim.App.2006) (table) (“Ward II”). The Alabama Supreme Court granted Ward’s petition for a writ of certiorari to consider whether the limitations period in Rule 32.2(c), Ala. R.Crim. P., is jurisdictional and, if it is not jurisdictional, whether the Court should adopt the doctrine of equitable tolling to allow for the suspension of the running of the limitations period in Rule 32.2(c) in certain instances. That Court held that the limitations period is not jurisdictional and that “equitable tolling is available in extraordinary circumstances that are beyond the petitioner’s control and that are unavoidable even with the exercise of diligence.” Ex parte Ward, 46 So.3d 888, 897 (Ala.2007)(“Ward III”). The Court also concluded that this Court had “erred in holding that Rule 32.2(c), Ala. R.Crim. P., creates a jurisdictional bar that precludes application of the doctrine of equitable tolling,” and it reversed that portion of this Court’s judgment and remanded the cause for further proceedings consistent with the opinion. Id. at 898.

On remand from the Alabama Supreme Court, this Court again affirmed, without an opinion, the trial court’s summary dismissal, holding in the unpublished memorandum that the doctrine of equitable tolling was not available to Ward because he had not asserted the doctrine in his Rule 32 petition. Ward v. State (No. CR-05-0655, August 17, 2007), 14 So.3d 196 (Ala. Crim.App.2007) (table) (“Ward IV”). The Alabama Supreme Court again granted Ward’s petition for a writ of certiorari, and on February 19, 2010, it reversed this Court’s judgment, holding, in relevant part:

“The dispositive issue before us is whether the Court of Criminal Appeals correctly held that the doctrine of equitable tolling is not available to Ward because he failed to assert it in the Rule 32 petition filed by previous counsel on November 2, 2005, before we released our opinion in Ward III on June 1, 2007, in which we recognized as a matter of first impression the availability of equitable tolling to a Rule 32 petitioner. In light of the fact that the doctrine of equitable tolling is a newly recognized exception to the limitations provision of Rule 32.2(c), that it was Ward who argued successfully before this Court that the doctrine should be adopted, and that this is a capital case, we hold that Ward should have the opportunity to assert the doctrine of equitable tolling.”

Ex parte Ward, 46 So.3d 898, 901-02 (Ala.2010) (“Ward V”). The Alabama Supreme Court reversed this Court’s judgment in Ward TV with directions that this Court remand the case “to the trial court for an evidentiary hearing on the merits of Ward’s equitable-tolling claim and a determination as to whether Ward is entitled to file an out-of-time Rule 32 petition.” Id. at 903.

In light of the Supreme Court’s holding, we reverse the trial court’s judgment and remand this case for further proceedings consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED.

WISE, P.J., and KELLUM and MAIN, JJ., concur. WINDOM, J., recuses herself.


author: SMITH, Justice.

text:
    WOVEN TREASURES, INC., and Mina Esfahani v. HUDSON CAPITAL, L.L.C.
    1080296.
    Supreme Court of Alabama.
    Dec. 18, 2009.
    As Modified on Denial of Rehearing April 9, 2010.

      Alan C. Christian of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for appellants.
    Mack B. Binion and Margaret M. Miller of Briskman & Binion, P.C., Mobile, for appellee.
   SMITH, Justice.

Woven Treasures, Inc., and Mina Esfa-hani appeal the trial court’s summary judgment in favor of Hudson Capital, L.L.C. We affirm.

Facts and Procedural History

The action arises from the liquidation of the inventory of a retail store known as Old Mobile Furniture by defendant Hudson Capital. Woven Treasures, a seller of oriental rugs, and Esfahani, the owner of Woven Treasures (hereinafter referred to collectively as “the plaintiffs”), sued Hudson Capital in the Mobile Circuit Court, asserting that Hudson Capital improperly possessed and sold rugs the plaintiffs say they had consigned to the owner of Old Mobile Furniture, Richard Clarke. The plaintiffs asserted claims of conversion, trespass to property, unjust enrichment, negligence, and wantonness.

Old Mobile Furniture was the name under which a company known as TSR Imports, Inc., operated. Sometime in 2005 TSR Imports defaulted on a loan from Compass Bank that it had secured in part with the inventory of Old Mobile Furniture. A representative of Compass Bank subsequently contacted Hudson Capital, a company engaged in the inventory-liquidation business, to see whether Hudson Capital was interested in purchasing the inventory of Old Mobile Furniture.

Hudson Capital, after conducting a walk-through of Old Mobile Furniture and a Uniform Commercial Code (“UCC”) search regarding the merchandise at the store, decided that it was interested in purchasing the inventory of Old Mobile Furniture. On August 26, 2005, TSR Imports, Compass Bank, and Hudson Capital entered into a tripartite “Agreement to Conduct a ‘Going Out of Business Sale’ ” whereby Hudson Capital agreed to pay Compass Bank $385,000 for the right to conduct a liquidation sale of the merchandise at Old Mobile Furniture and to retain all proceeds of the sale as well as the unencumbered rights to all unsold merchandise. Pursuant to the agreement, the sale would begin on or about August 29, 2005, and continue for 10 weeks. The agreement states:

“This letter shall serve as the agreement between Hudson Capital, LLC ... and TSR Imports, Inc., d/b/a Old Mobile Furniture ... with respect to the conduct of a ‘Going Out of Business’ sale (the ‘Sale’) at [Old Mobile Furniture’s] retail store located at 967 Hillcrest Road, Mobile, Alabama 86695 (the ‘Store’).
“... [TSR Imports] hereby appoints [Hudson Capital] as its agent for the purpose of conducting the Sale in accordance with the terms of this Agreement. In consideration of the right to conduct the Sale, [Hudson Capital] shall pay to [TSR Imports] (or as [TSR Imports] shall designate in writing) the sum of $385,000 (the ‘Guaranteed Amount’). After payment of the Guaranteed Amount and all Sale Expenses, [Hudson Capital] shall retain all Proceeds of the Sale as its fee for conducting the Sale hereunder.... [Hudson Capital] shall pay to [TSR Import’s] secured lender, Compass Bank, the Guaranteed Amount on the Sale Commencement Date. If [Hudson Capital] has been unable to sell any Merchandise during the Sale Term, such Merchandise shall become the property of [Hudson Capital], free and clear of all liens, claims and encumbrances.”

The agreement defines the term “Merchandise” as “all of [TSR Imports’] owned retail inventory located at the Store on the Sale Commencement Date.... ”

On August 26, 2005, Hudson Capital and TSR Imports also entered into a security agreement whereby TSR Imports granted Hudson Capital “a security interest in and to (i) all of the Merchandise located in the Store, (ii) all Proceeds, and (iii) all proceeds arising therefrom....” The agreement expressly authorized Hudson Capital to file a UCC financing statement describing the merchandise in order to perfect the lien granted to it by TSR Imports.

Among the merchandise Hudson Capital obtained from Old Mobile Furniture were rugs the plaintiffs had allegedly consigned to Richard Clarke individually and/or to Reproduction Galleries, a furniture store Clarke had previously owned and that was operated by an entity known as Reproduction Galleries, Inc. In January 2001, Reproduction Galleries and Woven Treasures entered into an agreement pursuant to which Reproduction Galleries would display rugs provided by Woven Treasures on a consignment basis. That agreement states:

“Woven Treasures herewith engages Reproduction Galleries, Inc., to provide space for the sale of inventory provided by Woven Treasures on an individual consignment basis in exchange for a commission amount set and agreed upon by both parties and in accordance to each rug sold by Reproduction Galleries, Inc. Such individual consignments of rugs will be made by separate documents which are subject to the terms herein, and those separate documents shall contain specific reference to the selling price, commission, delivery and identification of each individual rug.
“Once the item(s) have been sold to a customer by Reproduction Galleries, Inc., Woven Treasures shall be entitled to the purchase price agreed upon by the Parties whether or not the customer has paid in full. Woven Treasures shall be entitled to receive the purchase price agreed upon by the Parties hereto, less the commission amount for Reproduction Galleries, Inc., within ten (10) days of each sale, whether or not the customer has paid Reproduction Galleries, Inc., in full.”

Pursuant to this agreement, Woven Treasures executed 9 consignment slips that each listed 4 to 11 rugs. The consignment slips varied as to the name of the consignee: four slips listed “Reproduction Galleries”; three slips listed “Reproduction Gallery”; one slip listed “Reproduction”; and one slip listed “Reproduction Gallery/Old Mobile Furniture.”

Approximately two years after Reproduction Galleries and Woven Treasures had executed the consignment agreement, Reproduction Galleries went out of business. Esfahani testified that Clarke told her that he would be opening a furniture store in a new location and that she replied, “[TJhat’s a great idea.” Esfahani further testified that Clarke specifically told her that he would move the consigned rugs to the new store, Old Mobile Furniture, and that she told him, “it’s fine with me.” Esfahani did not personally transfer the consigned rugs to Old Mobile Furniture, but she testified that “I see [sic] my rugs at the new location” and that she regularly sent her employees to Old Mobile Furniture to inventory the consigned rugs. Esfahani further testified that she believed that displaying the rugs at Old Mobile Furniture was a continuation of the consignment agreement Woven Treasures had entered into with Reproduction Galleries.

After the consigned rugs were moved to the new location of Old Mobile Furniture, TSR Imports defaulted on its loan with Compass Bank. The bank sought to sell its interest in the inventory of Old Mobile Furniture, and several Hudson Capital employees walked through the store with Clarke when Hudson Capital was considering whether to purchase the bank’s interest in TSR Imports. The chief operating officer of Hudson Capital, Fulton Stokes, testified that during the walk-through he asked Clarke whether any of the merchandise in the store was on consignment and that Clarke responded that it was not. Stokes further testified that he specifically asked Clarke whether any of the rugs in the store were on consignment and that Clarke responded that he previously had had some rugs on consignment but that “the lady” had picked up those rugs the previous evening. Hudson Capital then conducted a search of UCC records for TSR Imports and Old Mobile Furniture to ensure that the inventory was not claimed by someone else because, as Stokes testified, “when you deal with people in distress, you never know if they’re telling the truth.” In an affidavit, an attorney with the law firm that conducted the UCC search represented that the firm found no filings by or on behalf of Esfahani and/or Woven Treasures naming TSR Imports or Old Mobile Furniture as a debtor. Indeed, it is undisputed that the plaintiffs never filed any financing statements related to the-consigned rugs.

In August 2005, Hudson Capital commenced the liquidation sale at Old Mobile Furniture. Esfahani testified that she saw an advertisement for the sale in the Mobile Press-Register and thought, “[w]hat’s going on, where [are] my rugs?” Esfahani then went to Old Mobile Furniture in an attempt to speak with Clarke. Esfahani testified that, when she went to the store, she spoke with Angelo Nichols, an employee of Hudson Capital. Esfahani described her conversation with Nichols as follows:

“I went up there and I said, I want to see [Clarke]. And [Nichols] said ... he’s not here or he’s no longer here or something like that. And there was some lady cleaning the floor, and I think she said, he’s not here anymore. And I said, I need to ... I think I said I want to see [Clarke], my rugs are here. And [Nichols] said something like, oh, those rugs are gone, something like that.”

Esfahani represented that this conversation occurred at some point during the 10-week liquidation sale, but she could not recall the date or month in which the conversation occurred.

After the sale, Hudson Capital perfected its security interest in the merchandise of Old Mobile Furniture and the proceeds arising therefrom by filing a financing statement with the Alabama Secretary of State. The plaintiffs later requested that Hudson Capital tender a sum equal to the fair-market value of the rugs they had originally consigned to Reproduction Galleries. Hudson Capital refused.

In January 2007, the plaintiffs sued Hudson Capital alleging that Hudson Capital improperly possessed and sold consigned rugs in which they maintained an unperfected security interest. As referenced earlier, the plaintiffs asserted claims of conversion, trespass to property, unjust enrichment, negligence, and wantonness.

Hudson Capital subsequently moved for a summary judgment based upon the following arguments: (1) that the plaintiffs cannot establish that Hudson Capital took possession of the consigned rugs; (ii) that Hudson Capital properly obtained and perfected a security interest in the rugs; and (iii) that Hudson Capital obtained title to the rugs as a good-faith purchaser for value. Hudson Capital later filed a “supplemental motion for summary judgment” asserting that the plaintiffs’ claims against it were barred under the doctrine of judicial estoppel because Esfahani had obtained a default judgment against Clarke in a breach-of-contract action related to the consigned rugs.

Hudson Capital also moved to strike certain deposition testimony of Esfahani the plaintiffs had submitted in response to its summary-judgment motion. Specifically, Hudson Capital argued that Esfahani’s testimony that an inventory of the consigned rugs was taken regularly at Reproduction Galleries and Old Mobile Furniture was inadmissible hearsay because Esfahani did not observe the taking of any inventories. The disputed deposition testimony states:

“Q: Okay. When you moved — or when Mr. Clarke moved your rugs to the new location at Old Mobile Furniture you said there was an inventory of your rugs conducted?
“A: Uh-huh, yes.
“Q: Who conducted that inventory?
“A: I don’t remember who was my employee, but I remember I sent few times someone from my shop over there.
“Q: Did you conduct inventory over [at Old Mobile Furniture] at all?
“A: I did not.
“Q: Okay. You did not. You did not personally go and conduct inventory?
“A: No.”

In an order without a written opinion, the trial court granted the initial summary-judgment motion, the supplemental summary-judgment motion, and the motion to strike. Consequently, the trial court entered a summary judgment in favor of Hudson Capital as to all the plaintiffs’ claims. The plaintiffs now appeal.

Standard of Review

In reviewing a ruling on the admissibility of evidence, such as deposition testimony, the standard is whether the trial court exceeded its discretion in excluding the evidence. In Bowers v. Wal-Mart Stores, Inc., 827 So.2d 63, 71 (Ala.2001), this Court stated: “When evidentia-ry rulings of the trial court are reviewed on appeal, ‘rulings on the admissibility of evidence are within the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion.’ ” (Quoting Bama’s Best Party Sales, Inc. v. Tupperware, U.S., Inc., 723 So.2d 29, 32 (Ala.1998).)

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12.”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

Discussion

A threshold issue in this case is whether the plaintiffs produced substantial evidence indicating that the consigned rugs were among the merchandise possessed and sold by Hudson Capital. The plaintiffs produced scant documentary evidence indicating that the consigned rugs were ever among the merchandise at Old Mobile Furniture, but they have produced deposition testimony in which several individuals stated that they saw oriental rugs at the store during the liquidation sale or several weeks before the sale. Specifically, the plaintiffs submitted deposition testimony from Esfahani in which she stated that she went to Old Mobile Furniture several weeks or months before the sale and that the store was closed but that “[I] could see my rugs from the distance that I could see from the window or door.” The plaintiffs also produced deposition testimony from Angelo Nichols, a Hudson Capital employee, in which he stated that at the time Hudson Capital inventoried the merchandise at Old Mobile Furniture, “[t]here [were] oriental rugs throughout the store.” Another employee of Hudson Capital, Jo Swingle, testified that she “saw rugs on the floor” of Old Mobile Furniture, particularly a very large rug, which, as described by Swingle, resembled a rug Esfa-hani testified that Woven Treasures had consigned to Reproduction Galleries.

The plaintiffs also contend that Esfaha-ni’s testimony that employees of Woven Treasures inventoried the consigned rugs at Old Mobile Furniture indicates that the rugs were among the merchandise possessed and sold by Hudson Capital. This testimony was stricken by the trial court as inadmissible hearsay, and the plaintiffs appeal that decision. We conclude that regardless of whether Esfahani’s testimony concerning the inventories is inadmissible hearsay, when the other evidence is viewed in a light most favorable to the plaintiffs, the plaintiffs have produced sufficient evidence to create a genuine issue of material fact as to whether the rags were among the merchandise Hudson Capital possessed and sold. Accordingly, we need not decide whether the trial court exceeded its discretion in excluding Esfa-hani’s testimony.

Assuming that the rugs were among the merchandise Hudson Capital possessed and sold, the issue then becomes whether Hudson Capital wrongfully converted the rugs to its possession. Although the plaintiffs present numerous arguments as to why Hudson Capital lacks rights to and title to the rugs and, therefore, why the trial court erred in entering a summary judgment in favor of Hudson Capital, these arguments consist of two primary contentions: (1) that Hudson Capital did not acquire a security interest in the rags; and (2) that Hudson Capital did not acquire title to the rags as a good-faith purchaser for value.

In response, Hudson Capital argues that the trial court did not err in entering a summary judgment in its favor because, it contends, its perfected security interest in the consigned rugs is senior to the plaintiffs’ unperfected security interest. We agree. Stated another way, TSR Imports granted Hudson Capital a security interest in all the merchandise displayed at Old Mobile Furniture (including the consigned rugs), and Hudson Capital perfected this interest, while the plaintiffs never filed a financing statement asserting their interest in the rugs.

In analyzing whether Hudson Capital obtained a security interest in the rugs, we begin by examining TSR Imports’ ability to grant a security interest in the consigned rugs. As referenced in the facts, TSR Imports displayed the rugs at the Old Mobile Furniture store on a consignment basis. Consequently, TSR Imports was a consignee as to the rugs. As a consignee of the rugs, TSR Imports obtained the rights and the title to the rugs identical to those of the plaintiffs under § 7-9A-S19, Ala.Code 1975. Section 7-9A-319(a) provides as follows:

“(a) Consignee has consignor’s rights. Except as otherwise provided in subsection (b),[] for purposes of determining the rights of creditors of, and purchasers for value of goods from, a consignee, while the goods are in the possession of the consignee, the consignee is deemed to have rights and title to the goods identical to those the consignor had or had power to transfer.”

The Official Comment to § 7-9A-319 notes that “[a]s a consequence of this section, creditors of the consignee can acquire judicial liens and security interests in the goods.” Thus, Hudson Capital, as a creditor of TSR Imports — by way of Compass Bank — acquired a security interest in the consigned rugs under the security agreement it had entered into with TSR Imports.

The following example from the Official Comment of § 7-9A-319 explains the operation of the statute and closely corresponds to the facts of this case:

“Example 1: SP-1 delivers goods to Debtor in a transaction constituting a ‘consignment’ as defined in Section 9-102. SP-1 does not file a financing statement. Debtor then grants a security interest in the goods to SP-2. SP-2 files a proper financing statement. Assuming Debtor is a mere bailee, as in a ‘true’ consignment, Debtor would not have any rights in the collateral (beyond those of a bailee) so as to permit SP-2’s security interest to attach to any greater rights. Nevertheless, under this section, for purposes of determining the rights of Debtor’s creditors. Debtor is deemed to acquire SP-l’s rights. Accordingly, SP-2’s security interest attaches, is perfected by the filing, and, under Section 9-322, is senior to SP-l’s interest.”

Here, “SP-1” is the plaintiffs, the “Debt- or” is Reproduction Galleries/TSR Imports, and “SP-2” is Hudson Capital. Following the example, the plaintiffs executed a consignment agreement with Reproduction Galleries. Reproduction Galleries then went out of business, and Esfahani permitted the rugs that had been consigned to Reproduction Galleries to be moved to Old Mobile Furniture in a transaction constituting another consignment.

Continuing with the example, the plaintiffs never filed a financing statement relating to the consigned rugs. TSR Imports then granted Hudson Capital a security interest in and to “(i) all of the Merchandise located in the Store; (ii) all Proceeds; and (iii) all proceeds arising therefrom.” Hudson Capital then filed a proper financing statement as to its interest in the merchandise of Old Mobile Furniture and the proceeds arising from the sale of that merchandise. Following the language of the example, “[accordingly, [Hudson Capital’s] security interest attaches, is perfected by the filing, and, under Section 9-322, is senior to [the plaintiffs’] interest.” § 7-9A-319 Off. Cmt. See also § 7-9A-322(a)(2) (“A perfected security interest ... has priority over a conflicting unperfected security interest....”). Thus, Hudson Capital, as a purchaser for value of goods from a consignee, did not possess and sell the rugs in violation of the plaintiffs’ rights to the rugs.

The plaintiffs make several arguments as to why the example from § 7-9A-319 does not apply to the facts of this case. First, the plaintiffs argue that TSR Imports never was a consignee of the rugs and that, therefore, TSR Imports never obtained any rights in the rugs that under § 7-9A-319 it could transfer to Hudson Capital. This argument is premised on the plaintiffs’ contention that the rugs were consigned only to Clarke individually and that this consignment never expired. This contention is unsupported by the evidence because the consignment agreement clearly states that “[t]his agreement is made and entered into effective as of this the 15[th] day of January, 2001 by and between Woven Treasures and Reproduction Galleries, Inc.,” and Clarke signed the agreement only “as representing Reproduction Galleries, Inc.” Additionally, none of the consignment slips listed Clarke as the consignee, whereas at least one slip listed “Reproduction Galleries/OM Mobile Furniture ” as the consignee. (Emphasis added.)

Even apart from the fact that one of the consignment slips listed Old Mobile Furniture as a consignee, we find that a consignment between the plaintiffs and TSR Imports (d/b/a Old Mobile Furniture) arose when the plaintiffs permitted Clarke to move the rugs from Reproduction Galleries to Old Mobile Furniture and to display the rugs at that store on a consignment basis. Under Alabama law, a “consignee” is “a merchant to which goods are delivered in a consignment,” § 7-9A-102(a)(19), AIa.Code 1975, and there is no requirement that a consignment be in writing; the term “consignment” is defined in § 7-9A-102(a)(20), AIa.Code 1975, as “a transaction, regardless of its form, in which a person delivers goods to a merchant for the purpose of sale.... ” (Emphasis added.) See also Black’s Law Dictiona'ry 327 (8th ed.2004) (defining “consignee” as “[o]ne to whom goods are consigned,” and “consign” as “[t]o transfer to another’s custody or charge”); 35 C.J.S. Factors § 1 (“A ‘consignment’ exists where a consignor leaves his or her property with a consignee who is substantially engaged in selling the goods of others, and will work to sell the goods on behalf of the consignor.”).

Here, the plaintiffs in their attempt to establish that Hudson Capital had possession of their rugs likewise established that their rugs were delivered to Old Mobile Furniture for the purpose of sale. Thus, we conclude that a consignment between the plaintiffs and TSR Imports arose. TSR Imports had the ability to transfer to Hudson Capital under § 7-9A-319 rights and title to the rugs identical to those of the plaintiffs.

The plaintiffs also contend that the example from § 7-9A-319 is inapplicable to the present case by arguing that the example states that “SP-1 delivers goods to Debtor,” and in this case they did not actually “deliver” the rugs to Old Mobile Furniture because Clarke moved the rugs. We find this argument to be without merit. First, the actual text of § 7-9A-319 does not use the term “deliver”; rather, it merely refers to a situation in which “the goods are in the possession of the consignee.” Such a situation exists here. Second, the term “delivery” is defined in § 7-1-201(15), “General Definitions,” as “voluntary transfer of possession.” Here, it is undisputed that the plaintiffs voluntarily transferred possession of the rugs to Old Mobile Furniture.

Finally, the plaintiffs contend that the example from § 7-9A-319 is inapplicable because TSR Imports did not own the rugs, and, therefore, they say, TSR Imports did not grant Hudson Capital a security interest in the rugs. This argument is based on the express terms of the security agreement, which state that TSR Imports grants a security interest in and to “all of the Merchandise located in the Store” and then define “Merchandise” as “all of Merchant’s owned retail inventory located at the Store on the Sale Commencement Date-” (Emphasis added.) In short, the plaintiffs argue that the security agreement does not cover the consigned rugs because TSR Imports did not own the rugs.

We find this argument unpersuasive because TSR Imports, as a consignee of the rugs, is “deemed to have rights and title to the goods identical to those the consignor had” for purposes of determining the rights of purchasers for value of goods such as Hudson Capital. § 7-9A-319(a) (emphasis added). In addition, the term “owned” is not defined in the security agreement, but the term “own” is defined in Black’s Law Dictionary as “[t]o rightfully have or possess as property; to have legal title to.” Black’s Law Dictionary 1137 (8th ed.2004). Here, TSR Imports rightfully possessed the rugs as a consignee, and it was deemed to have title to the rugs identical to that of Woven Treasures, the consignor. See § 7-9A-319(a). We conclude that TSR Imports granted Hudson Capital a security interest in the consigned rugs.

The plaintiffs further argue that if Hudson Capital is found to have a security interest in the rugs, its interest is inferior to their unperfected security interest because Hudson Capital perfected its interest in the rugs after the liquidation sale had ended and some of or all the rugs had been sold. Specifically, the plaintiffs contend:

“Since Hudson’s putative security interest in the Carpets (the original putative collateral) was unperfected at all times through the Sale, and vanished upon purchase by consumers of each Carpet during the Sale pursuant to § 7-9A-320(a)[] ... Hudson cannot perfect a, or obtain a perfected, security interest in the ‘proceeds’ after the Carpets had previously been sold during the Sale.”

Plaintiffs’ brief, at p. 70. This argument is without merit because Hudson Capital’s security interest in the rugs attached before the sale began and continued after the rugs had been disposed of. Section 7-9A-315(a), Ala.Code 1975, clearly provides that “(1) a security interest ... continues in collateral notwithstanding sale ... or other disposition thereof ... and (2) a security interest attaches to any identifiable proceeds of collateral.” The plaintiffs’ reliance on § 7-9A-320(a) to argue that Hudson Capital’s security interest in the merchandise “vanished upon purchase by consumers” is misguided because § 7-9A-320 states only that a buyer in the ordinary course of business takes free of a seller’s security interest in the goods, not that the seller’s security interest vanishes. Accordingly, when Hudson Capital perfected its security interest in the rugs, it also perfected its security interest in any proceeds from the sale of the rugs, and the fact remains that the plaintiffs never filed a financing statement reflecting their security interest in the rugs.

Based on the foregoing, the plaintiffs’ claims of conversion, trespass to property, unjust enrichment, negligence, and wantonness must all fail because Hudson Capital has a superior security interest in the consigned rugs. Accordingly, the trial court did not err in entering a summary judgment in favor of Hudson Capital as to all the plaintiffs’ claims.

Conclusion

We affirm the trial court’s summary judgment in favor of Hudson Capital.

AFFIRMED.

COBB, C.J., and WOODALL, PARKER, and SHAW, JJ., concur.

      . Clarke was the sole owner of TSR Imports, doing business as Old Mobile Furniture, and before opening Old Mobile Furniture, Clarke had owned another furniture store, Reproduction Galleries. The record does not indicate that TSR Imports and Reproduction Galleries, Inc., were related. The amended complaint asserts that "Woven Treasures and/or Esfaha-ni had consigned to Rick Clarke ('Clarke') doing business as Reproduction Galleries and/or Reproduction Galleries, Inc .... a number of oriental carpets with a total fair market value of $89,470.00.”

      . During a deposition, Esfahani was asked "from your perspective [display of the consigned rugs at Old Mobile Furniture] was just a continuation of the document that you had signed with Reproduction Galleries?” To which Esfahani responded, "Yes, uh-huh.” Later in a deposition, however, Esfahani testified that "I personally consigned rugs to Rick Clarke.” Counsel for Hudson Capital then asked, "Well, the contract states that you consigned them to Reproduction Galleries; correct?” To which Esfahani responded, "Yes.”

      . Under § 7-9A-103(d), Ala.Code 1975, a consignor has a purchase-money security interest in the goods that are the subject of a consignment.

      . Section 7-9A-319(b) provides as follows:
      "(b) Applicability of other law. For purposes of determining the rights of a creditor of a consignee, law other than this article determines the rights and title of a consignee while goods are in the consignee's possession if, under this part, a perfected security interest held by the consignor would have priority over the rights of the creditor.”

      . The term "consignment” is defined in § 7-9A-102(a)(20), Ala.Code 1975, as
      "a transaction, regardless of its form, in which a person delivers goods to a merchant for the purpose of sale and:
      "(A) the merchant:
      "(i) deals in goods of that kind under a name other than the name of the person making delivery;
      “(ii) is not an auctioneer; and
      "(iii) is not generally known by its creditors to be substantially engaged in selling the goods of others;
      "(B) with respect to each delivery, the aggregate value of the goods is $1,000 or more at the time of delivery;
      "(C) the goods are not consumer goods immediately before delivery; and
      "(D) the transaction does not create a security interest that secures an obligation.”

      . The plaintiffs, in their reply brief, assert that Hudson Capital has "admitt[ed] that [the plaintiffs] consigned the Carpets only to Rick Clarke,” and they support this assertion with a citation to page one of Hudson Capital's brief. See plaintiffs’ reply brief, at p. 1. The plaintiffs’ assertion is without merit. Page one of Hudson Capital’s brief merely states that "Esfahani 'as representative for Woven Treasures’ entered into an agreement with Rick Clarke 'as representative for Reproduction Galleries, Inc.’ for the consignment of rugs, the description of which is set out in a different set of documents.” Hudson Capital’s brief, at p. I.

      . Section 7-9A-320(a) provides, in pertinent part: "[A] buyer in ordinary course of business ... takes free of a security interest created by the buyer’s seller, even if the security interest is perfected and the buyer knows of its existence.”

      . We pretermit discussion of whether Hudson Capital constituted a good-faith purchaser of the rugs under § 7-2-403, Ala.Code 1975, because we conclude that Hudson Capital had a superior security interest in the rugs. Additionally, Hudson Capital does not respond to the plaintiffs' arguments that the trial court erred in granting Hudson Capital’s supplemental summary-judgment motion, in which it argued that the plaintiffs’ claims were barred by the doctrine of judicial estoppel. This Court need not review the order of the trial court insofar as it granted the supplemental summary-judgment motion because we affirm the trial court’s initial summary judgment and its dismissal of all the plaintiffs’ claims with prejudice.