author: BRYAN, Judge.

text:
    Steven CHESS v. Wade BURT.
    2100838.
    Court of Civil Appeals of Alabama.
    Dec. 2, 2011.
    Certiorari Denied Jan. 13, 2012 Alabama Supreme Court 1110336.

      Anthony B. Bush of Lewis, Bush & Faulk, LLC, Montgomery, for appellant.
    Emily C. Marks of Ball, Ball, Matthews & Novak, P.A., Montgomery; and John Hollis Jackson, Jr., of Jackson & Jackson, LLP, Clanton, for appellee.
   BRYAN, Judge.

Steven Chess appeals from an order granting the summary-judgment motion of Wade Burt. We reverse and remand.

Factual Background and Procedural History

On March 17, 2008, Richard A. Gram-mer (“Richard”) and S. Diane Grammer (“Diane”) mortgaged a parcel of real property in Chilton County (“the property”) to Peachtree Bank to secure the payment of a promissory note in the principal amount of $214,387.63. On January 28, February 4, and February 11, 2010, Peachtree Bank published a notice that the property would be sold at a foreclosure sale on February 18, 2010.

On February 16, 2010, Diane executed a document titled “Assignment of Statutory Right of Redemption from Foreclosure” (“the February 16, 2010, assignment”). In pertinent part, the February 16, 2010, assignment stated:

“This Assignment of Statutory Right of Redemption from Foreclosure ... is made and entered into by and between [Diane] and [Chess] on this the 16th day of FEBRUARY, 2010.
“RECITALS
“WHEREAS, [Diane] owns [the property]; and
“WHEREAS, [the property] is encumbered by a mortgage and is now subject to foreclosure, and [Diane] desires to assign their [sic] statutory right of redemption to [Chess].
“NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable consideration, in hand paid to [Diane] by [Chess], [Diane] does hereby grant, bargain, sell, assign, transfer and set over unto [Chess] all of [Diane’s] right of redemption from foreclosure of that certain mortgage executed by RICHARD GRAMMER AND S. DIANE GRAMMER to PEACHTREE BANK on the 17 day of MARCH, 2008 ... together with all other right, title and interest of [Diane] in and to the property...

(Capitalization in original; emphasis added.)

On February 18, 2010, Peachtree Bank held a foreclosure sale. Burt, who bid $300,000, was the highest bidder at the foreclosure sale, and the auctioneer executed a foreclosure deed conveying the property to Burt.

On March 17, 2010, Chess sued Burt, seeking to redeem the property. Chess’s complaint alleged that, by virtue of the February 16, 2010, assignment, Chess was a transferee of Diane’s right to redeem the property and, therefore, had a right to redeem the property under § 6-5-248(a)(5), Ala.Code 1975. Chess’s complaint further alleged that he had demanded that Burt provide him with a written statement of the charges to redeem the property and that Burt had failed to respond to that demand within 10 days. In addition, Chess’s complaint alleged that Burt’s failure to respond to Chess’s demand for a written statement of the lawful charges to redeem the property within 10 days had relieved Chess of the obligation to tender payment of the amount required to redeem the property when he filed his complaint and had effected a forfeiture of Burt’s right to compensation for any permanent improvements made to the property since the foreclosure sale.

Answering, Burt denied that Chess had a right to redeem the property, denied that Burt had failed to provide Chess with a written statement of lawful charges within 10 days after Burt received Chess’s demand, averred that Burt had provided Chess with a written statement of lawful charges within 10 days after Burt received Chess’s demand, and averred that Chess had not responded to that written statement of lawful charges within the time allowed by Alabama law.

On September 8, 2010, Chess amended his complaint (1) to allege that Burt was claiming that certain charges constituted improvements to the property for which he was entitled to compensation as a condition of redemption and (2) to claim that Burt was not entitled to compensation for those charges.

On December 13, 2010, Chess moved for a summary judgment determining that he was entitled to redeem the property for a total of $800,783.76, which consisted of the $300,000 Burt had paid to purchase the property at the foreclosure sale and recording fees and property taxes Burt had paid. Chess asserted that Burt had forfeited his right to compensation for any permanent improvements made to the property since the foreclosure sale by failing to provide Chess with a written statement of lawful charges within 10 days after Burt had received Chess’s demand for such a statement. Chess supported his summary-judgment motion with his affidavit and an excerpt from Burt’s deposition. Chess’s affidavit stated:

“I am the Plaintiff, Steven Chess, in the above styled case. This matter is a redemption of real estate. I have purchased and obtained the right of redemption from former owner Diane Grammer. I emailed to Wade Burt on March 2 and hand-delivered to his home (accepted by a lady that answered the door) the demand for lawful charges. Further, I sent by certified mailed [sic] a demand for lawful charges to Wade Burt which was signed for on March 3, 2010.
“I did not receive a response until March 18 which is more than 10 days after my delivery.
“In deposition Mr. Burt states that he went to attorney Bill Latham to prepare a response, and then was sent to attorney Jackson and he signed a letter and left. He did not know when the letter was mailed. Attached hereto as Exhibit ‘A’ to my affidavit is the envelope which was received by me on March 18.
“The purpose of this affidavit is to establish that I did not receive a response to my demand for lawful charges in ten (10) days as provided by law.”

In the excerpt from Burt’s deposition submitted in support of Chess’s motion, Burt testified that he did not receive a letter from Chess at his house and that, because he lived alone, there was no one at his house who could have accepted Chess’s letter in his absence. Burt further testified that his secretary had signed for a letter from Chess that was delivered to Burt’s business address, that he took the letter to an attorney, and that the attorney prepared and mailed a letter to Chess responding to Chess’s letter. Burt further testified that sometime after he received Chess’s letter he saw Chess at a restaurant and asked him if he would sell his right to redeem the property to Burt. The excerpt from Burt’s deposition does not contain any testimony indicating the date when Burt received Chess’s letter from his secretary.

On January 10, 2011, Burt amended his answer to assert as a defense that the February 16, 2010, assignment was invalid because Diane’s statutory right of redemption did not exist until the mortgage was foreclosed on February 18, 2010, two days after Diane had executed the February 16, 2010, assignment.

On January 14, 2011, Burt filed a pleading in opposition to Chess’s summary-judgment motion in which he asserted that he had responded to Chess’s demand for a written statement of lawful charges on March 10, 2010, and that a genuine issue of material fact existed regarding whether Chess had a right to redeem the property.

On January 18, 2011, the trial court held a hearing regarding Chess’s summary-judgment motion; however, the trial court did not rule on the motion at that time.

On February 7, 2011, Burt filed a counterclaim against Chess. In his counterclaim, Burt (1) alleged that Richard had assigned his statutory right to redeem the property to Burt on April 22, 2010 (“the April 22, 2010, assignment”) in exchange for Burt’s paying him $50,000 and (2) sought a judgment determining that Burt was entitled to redeem the property. Along with his counterclaim, Burt tendered a check in the amount of $376,679.02 made payable to the trial court’s clerk.

On April 5, 2011, Burt moved for a summary judgment with respect to both Chess’s claim against him and his counterclaim against Chess. First, Burt asserted that he was entitled to a summary judgment with respect to Chess’s claim seeking redemption of the property because, Burt said, Chess did not have a right to redeem the property. This was so, according to Burt, because the February 16, 2010, assignment did not effectively convey Diane’s statutory right to redeem the property to Chess because she had executed it before the foreclosure had actuated her statutory right of redemption on February 18, 2010, and because the February 16, 2010, assignment was not supported by consideration. Second, Burt asserted that he was entitled to a summary judgment with respect to Chess’s claim seeking redemption of the property because, Burt said, he had provided Chess with a written statement of the lawful charges within 10 days after he received Chess’s demand for such a statement and Chess did not have a valid excuse for failing to tender the amount necessary to redeem the property when he filed his complaint seeking redemption of the property. Third, Burt asserted that he was entitled to a summary judgment with respect to his claim seeking redemption of the property because, he said, (1) Chess did not have a right to redeem the property and (2) Burt did have a right to redeem the property by virtue of the April 22, 2010, assignment and had tendered the amount necessary to redeem the property when he filed his counterclaim seeking redemption of the property.

On April 28, 2011, Chess moved for leave to file an amended complaint accompanied by a proposed amended complaint. In his proposed amended complaint, Chess (1) alleged that Diane had executed a second assignment of her right to redeem the property to him on May 14, 2010 (“the May 14, 2010, assignment”), and (2) claimed that he had a right to redeem the property based on the May 14, 2010, assignment. The record does not indicate whether the trial court ruled on that motion.

Also on April 28, 2011, Chess answered Burt’s counterclaim with a general denial and supplemented his summary-judgment motion. In the supplement to his summary-judgment motion, Chess conceded that Diane’s statutory right of redemption did not exist on February 16, 2010, when she executed the February 16, 2010, assignment; however, he argued that, because the February 16, 2010, assignment stated that Diane assigned to Chess her statutory right of redemption “together with all other right, title and interest of [Diane] in and to the property,” the February 16, 2010, assignment had conveyed Diane’s equity of redemption, which did exist on February 16, 2010, to Chess. He further argued that the foreclosure on February 18, 2010, (1) had extinguished the equity of redemption he had acquired from Diane by virtue of the February 16, 2010, assignment and (2) had actuated the statutory right of redemption to which he was entitled as the transferee of Diane’s equity of redemption.

On May 6, 2011, Chess filed a pleading in opposition to Burt’s summary-judgment motion in which he incorporated the arguments he had made in support of his own summary-judgment motion.

On May 11, 2011, Burt filed a pleading in opposition to Chess’s motion for leave to amend his complaint, asserting that Chess had failed to show good cause for allowing the amendment. Also on May 11, 2011, Burt filed a brief in opposition to Chess’s supplement to his summary-judgment motion in which Burt argued that the February 16, 2010, assignment had not conveyed either Diane’s statutory right of redemption or her equity of redemption to Chess. On May 12, 2011, the trial court held a hearing regarding Burt’s summary-judgment motion.

On May 17, 2011, Chess filed a pleading in which he reiterated his argument that the February 16, 2010, assignment had conveyed Diane’s equity of redemption to Chess. On May 18, 2011, Chess moved to strike Burt’s amended answer, which Burt had filed on January 10, 2011. The record on appeal does not indicate that the trial court ruled on that motion.

On March 20, 2011, the trial court entered orders denying Chess’s summary-judgment motion and granting Burt’s summary-judgment motion without stating its rationale. Chess timely appealed to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Standard of Review
“We review a summary judgment de novo. American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala.2002).
“ 'We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the non-movant to present substantial evidence creating a genuine issue of material fact. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.' “Nationwide Prop. & Cas. Ins. Co.[ v. DPF Architects, P.C.], 792 So.2d [369] at 372 [ (Ala.2000) ] (citations omitted), quoted in American Liberty Ins. Co., 825 So.2d at 790.”

Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002).

Analysis

The first issue we must resolve is whether Burt was entitled to a summary judgment with respect to Chess’s claim seeking to redeem the property based on his argument that the February 16, 2010, assignment did not convey a right to redeem the property to Chess. Burt argued that the February 16, 2010, assignment did not convey a right to redeem the property to Chess for two reasons. First, he argued that the language of the February 16, 2010, assignment purported to assign to Chess only Diane’s statutory right of redemption, which did not exist before the foreclosure and, therefore, that the February 16, 2010, assignment conveyed nothing to Chess. Second, Burt argued that the February 16, 2010, assignment was not a valid conveyance because, he said, it was not supported by consideration. Thus, in order to resolve the issue whether Burt was entitled to a summary judgment based on his argument that the February 16, 2010, assignment did not convey a right to redeem the property to Chess, we must resolve two subissues: (1) whether the language of the February 16, 2010, assignment was sufficient to convey a right to redeem the property to Chess and (2), if so, whether the February 16, 2010, assignment was supported by consideration.

With respect to the first subis-sue, Chess concedes that Diane’s statutory right of redemption did not exist on February 16, 2010, when she executed the February 16, 2010, assignment; however, he argues that the language of the February 16, 2010, assignment was broad enough to convey Diane’s equity of redemption, which did exist on February 16, 2010, to him. Specifically, he argues that the language of the February 16, 2010, assignment not only purported to assign him Diane’s statutory right of redemption but also “all other right, title and interest of [Diane] in and to the property,” which he says was broad enough to encompass Diane’s equity of redemption. He further argues that the foreclosure on February 18, 2010, extinguished the equity of redemption he had acquired from Diane by means of the February 16, 2010, assignment but actuated the statutory right of redemption to which he was entitled as a transferee of Diane’s equity of redemption under 6-5-248(a). We agree.

“Alabama classifies itself as a ‘title’ state with regard to mortgages. Execution of a mortgage passes legal title to the mortgagee. The mortgagor is left with an equity of redemption, but upon payment of the debt, legal title revests in the mortgagor. The equity of redemption may be conveyed by the mortgagor, and his grantee secures only an equity of redemption. The payment of a mortgage debt by the purchaser of the equity of redemption invests such purchaser with the legal title. The equity of redemption in either case, however, is extinguished by a valid foreclosure sale, and the mortgagor or his vendee is left only with the statutory right of redemption.”

Trauner v. Lowrey, 369 So.2d 531, 534 (Ala.1979) (citations omitted; emphasis added).

Upon Richard and Diane’s execution of the mortgage, they conveyed legal title to the property to Peachtree Bank and retained an equity of redemption. See Trauner v. Lowrey. “The equity of redemption is a valuable interest, a legal estate and may be sold or transferred to another.” McGowan v. Williams, 241 Ala. 588, 590, 4 So.2d 164, 166 (1941). Section 6-5-248(a)(5) provides that “[a] transfer of any kind made by the debtor or mortgagor will accomplish a transfer of the interests of that party.” (Emphasis added.)

Given (1) that Diane’s equity of redemption was an interest in the property that could be conveyed before the foreclosure and (2) that § 6-5-248(a) provides that “[a] transfer of any kind” by the mortgagor “will accomplish a transfer of the interests of that party,” we conclude that the language in the February 16, 2010, assignment stating that it assigned to Chess not only Diane’s statutory right of redemption but also “all other right, title and interest of [Diane] in and to the property” was sufficient to convey Diane’s equity of redemption to Chess.

Section 6-5-248(a)(5) provides that the persons entitled to redeem property that has been sold at a foreclosure sale include “[a]ny transferee of the interests of the debtor or mortgagor, either before or after the sale.” (Emphasis added.) Moreover, § 6-5-248(b) provides that “[a]ll persons named or enumerated in subdivisions (a)(1) through (a)(7) may exercise the right of redemption granted by this article within one year from the date of the sale.” Accordingly, we conclude that, if the February 16, 2010, assignment was supported by consideration, Chess was a transferee of Diane’s equity of redemption under § 6-5-248(a)(5) by virtue of the February 16, 2010, assignment and that, as a transferee of Diane’s equity of redemption before the foreclosure, he was entitled to exercise a statutory right of redemption when his equity of redemption was extinguished upon foreclosure on February 18, 2010.

With respect to the second subis-sue, i.e., whether the February 16, 2010, assignment was supported by consideration, Chess argues that it was supported by consideration because it recited that the consideration for Diane’s executing it was “Ten Dollars ($10.00) and other good and valuable consideration.” Under Alabama law, that recited consideration is sufficient consideration to support the conveyance of Diane’s equity of redemption to Chess. See, e.g., Taylor v. Jones, 285 Ala. 353, 357, 232 So.2d 601, 605 (1970) (holding that recitation of one dollar and other valuable consideration as consideration for deeds was sufficient consideration to support the conveyances effected by the deeds). Accordingly, we conclude that the February 16, 2010, assignment was supported by consideration.

Having determined that the language of the February 16, 2010, assignment was sufficient to convey Diane’s equity of redemption to Chess before the foreclosure and that the February 16, 2010, conveyance was supported by sufficient consideration, we conclude that Burt was not entitled to a summary judgment based on his argument that the February 16, 2010, assignment did not convey a right to redeem the property to Chess.

The next issue we must resolve is whether Burt was entitled to a summary judgment with respect to Chess’s claim seeking redemption of the property based on Burt’s argument that Chess failed to tender the amount necessary to redeem the property when he filed his complaint seeking redemption. As this court pointed out in Skelton v. J & G, LLC, 922 So.2d 926, 931 (Ala.Civ.App.2005):

“Section 6-5-253(a)[, Ala.Code 1975,] provides, in pertinent part, that ‘[anyone entitled and desiring to redeem real estate under the provisions of this article must also pay or tender to the purchaser or his or her transferee the purchase price paid at the sale, ... and all other lawful charges.’ ‘[I]n order to redeem under the [redemption] statute[s][, § 6-5-247 et seq., Ala.Code 1975] one must either aver a payment or tender of all the amounts required by the statute, or show a valid excuse for failure to do so.’ Moore v. Horton, 491 So.2d 921, 923 (Ala.1986).
“Section 6-5-256, Ala.Code 1975, provides:
“‘Upon the filing of any complaint as provided in these sections and paying into court the amount of purchase money and the interest necessary for redemption and all lawful charges, if the written statement thereof has been furnished or, if not furnished, offering to pay such debt or purchase price and all lawful charges, the circuit court shall take jurisdiction thereof and settle and adjust all the rights and equities of the parties, as provided in this article.’ ”

(Footnote omitted.) However,

“[u]nder the plain language of § 6-5-252 and § 6-5-256, [Ala.Code 1975,] it is clear that a redemptioner is excused from tender at the time he files the complaint to redeem where he has timely furnished the purchaser with a demand for a statement of lawful charges and the 10-day statutory period for response has expired without the purchaser furnishing the redemptioner the statement of lawful charges. Our supreme court has so held in Shealy v. Golden, 897 So.2d 268 (Ala.2004) (as modified on denial of rehearing), and Purcell v. Smith, 388 So.2d 525 (Ala.1980) (both recognizing that, upon timely demand made by the redemptioner, the purchaser’s failure to timely furnish the redemptioner with the statement of lawful charges excuses tender and forfeits the purchaser’s right to payment for improvements); see also Harris v. Bradford, 245 Ala. 434, 17 So.2d 145 (1944) (failure of the purchaser to furnish the statement of debt and lawful charges upon demand made by the re-demptioner relieves the redemptioner of the necessity of making tender of the purchase price and lawful charges as a condition precedent to the maintenance of an action to exercise the statutory right of redemption); Lee v. Macon County Bank, 233 Ala. 522, 172 So. 662 (1937) (the failure of the purchaser to timely furnish the redemptioner, within 10 days after such written demand is made on the purchaser, a written itemized statement of the debt and lawful charges claimed by the purchaser and required for redemption results in the purchaser’s forfeiting all claims or right to compensation for improvements; also the redemptioner is entitled to file a bill to enforce the statutory right of redemption without a tender by simply offering to pay purchaser’s debt and all lawful charges).”

Skelton v. J & G, LLC, 922 So.2d at 932 (footnote omitted).

Thus, in order to resolve the issue whether Chess was required to tender payment for all lawful charges when he filed his complaint seeking redemption, we must resolve the issue whether Burt provided Chess with a written statement of lawful charges within 10 days after demand.

“[I]n Purcell v. Smith, 388 So.2d [525] at 528 [ (Ala.1980) ], our supreme court held that when a redemptioner mails the demand for lawful, charges, ‘[t]he ten-day period [under § 6-5-252] for response by the purchaser must begin to run from actual receipt by the purchaser of the demand.’ In so holding, our supreme court reasoned that where either the redemptioner or the purchaser relies on the vagaries of modern mail delivery to furnish the other party with the demand or the statement of lawful charges, that reliance cannot adversely affect important rights of the party to whom the demand or the statement of lawful charges is sent. Purcell v. Smith, 388 So.2d at 528. If the vagaries of the mail delivery affect an important right of either party, it must affect the right of the party who is relying on the mail for compliance with § 6-5-252. Purcell v. Smith, 388 So.2d at 528. Specifically, in Purcell our supreme court stated:
“ ‘[A] demand for a statement of lawful charges, sent by mail, is deemed made when received by the purchaser. The burden of compliance rests upon the redemptioner and any delay in the making of the demand must, similarly, affect his right rather than that of the purchaser upon whom the demand is made. Since the forfeiture of important rights depends upon the timeliness of a response, the purchaser cannot be penalized by the uncertainties of the mails and the burden rests on the redemptioner to make a written demand, by whatever mode, within the statutory time limit. Of course, the purchaser may not intentionally defeat the privilege to redeem. See Hudson v. MoHon, 231 Ala. 392, 165 So. 227 (1936).’
“Purcell v. Smith, 388 So.2d at 528-29.”

Skelton v. J & G, LLC, 922 So.2d at 933 (emphasis added).

Thus, the 10-day period for Burt to provide Chess with a written statement of lawful charges began running on the date Burt actually received Chess’s letter demanding a written statement of lawful charges. Chess’s affidavit stated that he hand delivered a copy of his letter to Burt’s house and left it with a lady there; however, Burt testified in his deposition that he lived alone and that there was no one at his house who could have accepted the letter in his absence. Moreover, Chess did not submit any evidence indicating that Burt himself actually received the letter Chess allegedly delivered to a lady at Burt’s house. Likewise, although Chess’s affidavit stated that he had e-mailed a copy of his letter to Burt, Chess did not submit any evidence indicating that Burt actually received that copy of the letter. The record contains a certified-mail receipt indicating that, on March 2, 2010, Burt’s secretary signed the certified-mail receipt for a copy of Chess’s letter that Chess had sent to Burt’s business address by certified mail. The record also contains evidence indicating that Burt actually received that copy of the letter from his secretary; however, the record does not indicate the date when Burt received it from his secretary. Consequently, we conclude that a genuine issue of material fact exists regarding the date when Burt actually received Chess’s letter demanding a written statement of lawful charges.

Thus, because a genuine issue of material fact exists regarding the date when Burt actually received Chess’s letter demanding a written statement of lawful charges, a genuine issue of material fact exists regarding whether Chess was required to tender the amount necessary to redeem the property when he filed his complaint seeking redemption. Accordingly, Burt was not entitled to a summary judgment with respect to Chess’s claim seeking redemption based on Burt’s argument that Chess was not entitled to redeem the property because he had failed to tender the amount necessary to redeem the property when he filed his complaint seeking redemption. Therefore, we reverse the summary judgment in favor of Burt with respect to Chess’s claim seeking redemption.

The next issue we must resolve is whether Burt was entitled to a summary judgment with respect to his counterclaim seeking redemption of the property. Chess argues that Burt was not entitled to a summary judgment with respect to Burt’s counterclaim seeking redemption because, Chess says, he was entitled to redeem the property.

If Chess, who sought redemption before Burt, is entitled to redeem the property, Burt would not be entitled to redeem it under § 6-5-248(d). Section 6-5-248(d) provides:

“(d) When any debtor, mortgagor, their transferees, their respective spouses, children, heirs, or devisees redeem, all recorded judgments, recorded mortgages, and recorded liens in existence at the time of the sale, are revived against the real estate redeemed and against the redeeming party and further redemption by some party other than the mortgagor or debtor under this article is precluded.”

(Emphasis added.)

The plain language of § 6-5-248(d) indicates that, if Chess, who is a transferee of a mortgagor, is entitled to redeem the property, Burt would not be entitled to redeem the property because Burt is a transferee of a mortgagor rather than a mortgagor or debtor — only a mortgagor or debtor can redeem after a transferee of a mortgagor has redeemed. Accordingly, because (1) Burt is not entitled to redeem the property if Chess is entitled to redeem the property and (2), as discussed above, a genuine issue of material fact exists regarding whether Chess is entitled to redeem the property, Burt was not entitled to a summary judgment determining that he is entitled to redeem the property. See § 6-5-248(d). Therefore, we reverse the summary judgment in favor of Burt with respect to his counterclaim seeking redemption of the property.

Conclusion

In summary, we reverse the order of the trial court granting Burt’s summary-judgment motion, and we remand the cause for further proceedings consistent with this opinion. Our resolution of this appeal based on the issues discussed above pre-termits discussion of the other issues raised by Chess.

REVERSED AND REMANDED.

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

      . Chess also purports to appeal from an order denying his summary-judgment motion. “However, subject to exceptions not here applicable, appellate courts do not review the denial of a summary-judgment motion." Buco Bldg. Constructors, Inc. v. Mayer Elec. Supply Co., 75 So.3d 121, 130 (Ala.Civ.App. 2010).

      . Section 6-5-248(a)(5) provides:
      "(a) Where real estate, or any interest therein, is sold the same may be redeemed by:

      "(5) Any transferee of the interests of the debtor or mortgagor, either before or after the sale. A transfer of any kind made by the debtor or mortgagor will accomplish a transfer of the interests of that party.”

      . Section 6-5-252, Ala.Code 1975, provides:
      "Anyone desiring and entitled to redeem may make written demand of the purchaser or his or her transferees for a statement in writing of the debt and all lawful charges claimed by him or her, and such purchaser or their transferees shall, within 10 days after such written demand, furnish such person making the demand with a written, itemized statement of all lawful charges claimed by him or her. The redeeming party must then tender all lawful charges to the purchaser or his or her transferee. If the purchaser or his or her transferee fails to furnish a written, itemized statement of all lawful charges within 10 days after demand, he or she shall forfeit all claims or right to compensation for improvements, and the party so entitled to redeem may, on the expiration of the 10 days, file his or her complaint without a tender to enforce his or her rights under this article and file a lis pendens with the probate court.”

      . The certified-mail receipt indicates that Burt’s secretary signed for Chess’s letter on March 2, 2010, rather than March 3, 2010.

      . We note that, because, as discussed above, a genuine issue of material fact exists regarding whether Chess was required to tender the amount necessary to redeem the property when he filed his complaint seeking redemption the trial court properly denied Chess’s summary-judgment motion.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Ex parte Patience Aileen SALTER. (In re Patience Aileen Salter v. Kirt Lee Stokes).
    2101128.
    Court of Civil Appeals of Alabama.
    Jan. 13, 2012.

      Richard L. Watters, Mobile, for petitioner.
    Johnny M. Lane, Saraland, for respondent.
   MOORE, Judge.

Patience Aileen Salter (“the wife”) petitions this court for a writ of mandamus directing the Mobile Circuit Court (“the trial court”) to vacate an August 19, 2011, order in which it stayed the underlying divorce action pending resolution of a criminal matter against Kirt Lee Stokes (“the husband”). We grant the petition and issue the writ.

Background

The materials submitted by the wife in support of her petition for a writ of mandamus establish the following. On April 7, 2011, the husband filed a complaint seeking a divorce from the wife; the husband alleged that he and the wife had entered into a common-law marriage in 2002. As grounds for the divorce, the husband alleged adultery, as well as physical and mental cruelty. On that same date, the husband sought and obtained a temporary restraining order in which the trial court restrained the wife from having any contact with the husband until such time as a hearing could be held on May 10, 2011. The trial court’s order also included a provision directing the parties to “maintain status quo as to payment of house note or rent, utilities, food, necessities, fixed credit obligations, etc.” The husband’s divorce action was assigned case no. DR-11-503610.

On April 14, 2011, the wife filed in the trial court a petition for an order of protection from abuse against the husband. The trial court issued an ex parte order of protection restraining the husband from threatening to commit or committing acts of abuse against, and from having any contact with, the wife and ordering the husband to stay away from the wife’s residence, her place of employment, and her children’s school. The wife’s petition was also scheduled for a hearing on May 10, 2011. The trial court assigned the wife’s protection-from-abuse action case no. DR-11-900352.

On May 23, 2011, the wife answered the husband’s divorce complaint and counterclaimed, seeking a divorce, an award of periodic alimony, and a permanent restraining order against the husband. The wife also requested that she be awarded the parties’ homeplace and that the husband be required to pay the outstanding indebtedness thereon. On that same date, the wife filed a motion styled “Instanter Motion For Homeplace, For Support, For Violation of the Status Quo and For a Restraining Order.”

In her instanter motion, the wife alleged, in pertinent part:

“3. [The wife] is currently living in her Mother’s home with ten (10) other individuals including her two (2) minor children.
“4. [The wife] does not have full-time employment and has been under medical treatment preventing her from even performing her part-time job.
“5. [The husband] cut off [the wife’s] cell phone, has failed to pay the truck note on [the wife’s] vehicle for over three (3) months, has changed the locks on the homeplace without providing [the wife] keys for same, has failed to pay [the wife’s] student loan for over six (6) months and has failed to provide [the wife] with financial support, all in violation of the Court’s Status Quo Order. [The husband] has and is well able to support [the wife] and pay regular monthly bills.
“WHEREFORE [the wife] requests that this matter be set for an immediate hearing and that upon completion of the same that this Court order [the husband] to remove himself from the home-place and give [the wife] exclusive possession of the same pending the final outcome of this divorce, to hold [the husband] in contempt for violation of the Status Quo Order and order [the husband] to pay the regular monthly bills of the marriage and to catch up the past due notes, to require [the husband] to pay [the wife’s] attorney a reasonable amount to compensate him for his services to date, and order [the husband] to stay away from [the wife] and have no contact with her in any form or fashion.”

Although the wife’s instanter motion had been scheduled for a hearing on June 24, 2011, that hearing was continued on motion of the husband’s counsel. The trial court rescheduled the hearing for August 3, 2011; that hearing was then continued until August 10, 2011, on motion of the wife’s counsel.

On August 10, 2011, the trial court heard arguments of counsel regarding the wife’s instanter motion. At the beginning of the hearing, the husband’s counsel orally moved the trial court to stay the divorce action, including any action on the wife’s instanter motion, because the wife had initiated a criminal action against the husband. The following colloquy was the extent of the arguments presented to the trial court at the August 10, 2011, hearing:

“[Husband’s counsel]: Judge, I have a motion requesting that this be stayed. Since this time, [the wife] has sworn a warrant out and my client has been arrested, and we are going to have to go for a hearing wherever he was arrested. That criminal matter needs to be disposed of before he can testify in this court.
“[Trial court]: Mr. Watters [the wife’s counsel], do you wish to be heard?
“[Wife’s counsel]: Yes sir, Your Hon- or. Basically, Your Honor, this is for support....
“My client has been without support since the husband filed for divorce back in April ... on April the 7th of this year. He has cut off — there are two pieces of real property. One is the homeplace. He changed the lock on the home-place ....
“[Husband’s counsel]: Judge, I’m going to object to [the wife’s counsel] — he’s not—
“[Trial court]: Really, just procedurally, does your client or do y’all dispute that there is a warrant pending, a criminal warrant pending?
“[Wife’s counsel]: No sir, not at all.
“[Trial court]: All right. I’m going to grant Mr.—
“[Wife’s counsel]: Judge, I wish to be heard on the record.
“[Trial court]: Mr. Watters, whatever you wish to say, say it.
“[Wife’s counsel]: Thank you, sir. All right. There are two—
“[Trial court]: But I don’t want you to make a rendition of facts, things that will come from the witness stand. If you have some legal argument as to why this matter shouldn’t be stayed pending—
“[Wife’s counsel]: He is violating the status quo. There is immediate relief that needs to be due my client. And Your Honor is putting my client through difficulty by failing to rule that the [husband] ... is supposed to provide support to my client while this matter is pending. She is behind in her credit cards, her — she’s had to—
“[Trial court]: Look, the only thing I really — the legal argument as to whether or not the case has to be stayed because of the pending criminal matters involving—
“[Wife’s counsel]: Judge, there is no reason for it to be stayed regarding the pending criminal matters as far as violation of the restraining order, Judge. He can testify regarding anything involving the assets he owns jointly with her that he is preventing her from obtaining and causing her financial difficulty. That is all that’s going — that can be testified to without any violation of his rights regarding any arrest for violation of the restraining order.
“[Trial court]: All right. Your objection is noted. I’m going to stay this matter. And as soon as the criminal matters are resolved, notify the court and this will be immediately set for hearing.”

On August 19, 2011, the trial court entered its order, staying the divorce action pending the resolution of the husband’s criminal charges. On August 29, 2011, the wife filed this mandamus petition requesting that this court direct the trial court to vacate its August 19, 2011, order and to conduct an evidentiary hearing on the issues raised in the wife’s instanter motion.

Analysis
“ ‘ “Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)....’
“Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003).”

Ex parte Progressive Specialty Ins. Co., 31 So.3d 661, 663 (Ala.2009). “Mandamus will be granted only where an abuse of discretion is shown.” Ex parte McMahan, 507 So.2d 492, 493 (Ala.1987).

In response to the wife’s instanter motion, the husband moved for a stay, asserting that the criminal matter pending against him must be resolved before the husband could testify in the divorce action. We construe the husband’s motion as an assertion of his Fifth Amendment right not to incriminate himself. The wife asserts that the trial court exceeded its discretion in granting the husband’s motion to stay the divorce action and that, by improperly staying the divorce action, the trial court has wrongfully denied her instanter motion for temporary support and possession of the homeplace without a hearing.

In Ex parte Rawls, 953 So.2d 374 (Ala.2006), our supreme court addressed a husband’s motion requesting that divorce proceedings be stayed pending resolution of criminal charges that had been filed against him by his wife. Id. at 376. The criminal charges at issue in Ex parte Rawls stemmed from the husband’s alleged violation of a protective order and his alleged stalking and harassment of the wife. Id.

The husband sought to stay the divorce proceedings, asserting, among other things, that a civil trial would violate his privilege against self-incrimination under the Fifth Amendment of the United States Constitution. Id. at 377. The trial court denied the husband’s motion for a stay, and the husband sought mandamus relief. Id. This court affirmed the trial court’s ruling without an opinion, and the husband sought further mandamus review by the Alabama Supreme Court. Id.

In reviewing the correctness of the trial court’s ruling, the supreme court in Ex parte Rawls stated:

“This Court stated in Ex parte Baugh, 530 So.2d 238, 241 (Ala.1988):
“ ‘Under the Fifth Amendment to the Constitution of the United States, “no person ... shall be compelled in any criminal ease to be a witness against himself.” The privilege against self-incrimination must be liberally construed in favor of the accused or the witness, Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), and is applicable not only to federal proceedings but also to state proceedings, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). “The fact that the privilege is raised in a civil proceeding rather than a criminal prosecution does not deprive a party of its protection.” Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir.1979), citing with approval Lefkowitz v. Cunningham, 431 U.S. 801, 9[7] S.Ct. 2132, 53 L.Ed.2d 1 (1977); McCarthy v. Amdstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158 (1924).’
“The United States Constitution, however, does not mandate that under all circumstances the civil proceedings in which the privilege against self-incrimination is asserted be stayed; whether to stay those proceedings is within the trial court’s discretion.
“ ‘While the Constitution does not require a stay of civil proceedings pending the outcome of potential criminal proceedings, a court has the discretion to postpone civil discovery when “justice requires” that it do so “to protect a party or persons from annoyance, embarrassment, oppression, or undue burden or expense.” Rule 26(c), Ala. R. Civ. P.’
“Ex parte Coastal Training Inst., 583 So.2d 979, 980-81 (Ala.1991).
“In the present case, three issues must be addressed to determine if a stay in the civil divorce proceedings based on Fifth Amendment concerns in a pending criminal action is warranted: (1) whether the civil proceeding and the criminal proceeding are parallel, see Ex parte Weems, 711 So.2d 1011, 1013 (Ala.1998); (2) whether the moving party’s Fifth Amendment protection against self-incrimination will be threatened if the civil proceeding is not stayed, see Ex parte Windom, 763 So.2d 946, 950 (Ala.2000); and (3) whether the requirements of the balancing test set out in Ex parte Baugh, 530 So.2d at 244, and Ex parte Ebbers, 871 So.2d 776, 789 (Ala.2003), are met.”

Ex parte Rawls, 953 So.2d at 378.

In Ex parte Rawls, supra, our supreme court addressed in detail the balancing test, which it referred to as issue (3), and stated:

“More recently, this Court in Ex parte Ebbers, [871 So.2d 776 (Ala.2003) ], elaborated on that balancing test. In Eb-bers, this Court undertook to catalogue a list of factors identified in federal cases as factors that might be considered in applying the balancing test. The factors included, but are not limited to:
“ ‘1. The interest of the plaintiff in proceeding expeditiously with the civil litigation, or any particular aspect of it, and the potential prejudice to the plaintiff of a delay in the progress of that litigation.
“ ‘2. The private interest of the defendant and the burden that any particular aspect of the proceedings may impose on the defendant.
“ ‘3. The extent to which the defendant’s Fifth Amendment rights are implicated/the extent to which the issues in the criminal case overlap those in the civil case.
“ ‘4. The convenience of the court in the management of its cases, and the efficient use of judicial resources.
“‘5. The interest of persons not parties to the civil litigation.
“‘6. The interest of the public in the pending civil and criminal litigation.
“ ‘7. The status of the criminal case, including whether the party moving for the stay has been indicted....
“ ‘8. The timing of the motion to stay.’ ”

953 So.2d at 385 (quoting Ex parte Ebbers, 871 So.2d 776, 789-90 (Ala.2003)). In Ex parte Ebbers, supra, our supreme court recognized that a trial court must make a highly fact-dependent inquiry into the particular circumstances and competing interests involved when parallel civil and criminal actions coexist. 871 So.2d at 790. The court also recognized that “ ‘[a] motion to stay [a civil matter] during the pendency of a parallel criminal proceeding is not properly granted upon speculative or con-clusory grounds.’ ” 871 So.2d at 788 (quoting Ex parte Hill, 674 So.2d 530, 533 (Ala.1996) (addressing a motion to stay discovery in a civil proceeding on the basis of pending criminal charges)).

In ruling on the husband’s motion to stay, the trial court was, therefore, required to consider the three issues identified in Ex parte Rawls, supra, including the fact-specific balancing test set out in Ex parte Ebbers. The trial court, however, refused to allow the wife’s counsel to argue the specific facts of this case. The transcript from the hearing held on the wife’s instanter motion and the husband’s motion to stay the divorce action fails to identify the basis of the husband’s criminal charges other than to indicate that those charges related to the husband’s alleged violation of the trial court’s restraining order. That transcript also lacks sufficient facts for the trial court to have conducted the fact-intensive analysis required under Ex parte Rawls, supra, and Ex parte Eb-bers, supra.

We, therefore, agree with the wife that the trial court exceeded its discretion in granting the husband’s motion to stay. We grant the petition and issue a writ directing the trial court to vacate its August 19, 2011, order. The trial court is instructed to conduct a hearing sufficient to allow it to address the three factors identified in Ex parte Rawls, supra, and the Ebbers balancing test, as applied to the facts of this case.

PETITION GRANTED; WRIT ISSUED.

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

      . In addition to the pleadings and motions filed in the trial court, the wife also submitted to this court an affidavit and various exhibits. Those documents, however, were not before the trial court and, thus, cannot be considered in support of the wife’s petition. See Ex parte Ebbers, 871 So.2d 776, 794-95 (Ala.2003) (recognizing that, on mandamus review, appellate courts look at only those facts before the trial court); and Ex parte Vest, 68 So.3d 881, 885 (Ala.Civ.App.2011) (recognizing that, in ruling on a party’s mandamus petition, this court cannot consider an argument or evidence that a party did not present to the trial court).

        . The trial court apparently consolidated the husband’s divorce action, case no. DR-11-503610., with the wife’s protection-from-abuse action, case no. DR-11-900352. Thereafter, all filings were made under case no. DR-11-900352.


text:
    RUSSELL COUNTY DEPARTMENT OF HUMAN RESOURCES v. K.W., a minor child.
    2100783.
    Court of Civil Appeals of Alabama.
    Jan. 13, 2012.

      Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellant.
    Submitted on appellant’s brief only.

      . It does not appear from the record that a guardian ad litem has been appointed to represent the interests of K.W.

   MOORE, Judge.

The Russell County Department of Human Resources (“DHR”) appeals from the denial of its motion to alter, amend, or vacate a judgment entered by the Russell Juvenile Court adjudicating K.W. (“the child”) to be dependent and placing her in DHR’s custody. We reverse.

On April 18, 2011, a delinquency petition, signed and filed by a juvenile probation officer, was filed with the juvenile court regarding the child, who was born on April 9, 1995. In that petition, the juvenile probation officer alleged that the child was delinquent because she had threatened her mother with a knife in violation of Ala.Code 1975, § 13A-6-132, “Domestic violence — Third degree,” and Ala. Code 1975, § 13A-6-23, “Menacing.” The juvenile probation officer also moved the juvenile court, pursuant to Ala.Code 1975, § 12-15-113, to join in the delinquency action the child’s parents, guardians, or legal custodians. Upon the recommendation of the juvenile probation officer, the child was held in detention because “no one [was] able to provide supervision, [she presented a] substantial threat of [a] serious nature to [her]self or property of others; [and she presented a] serious threat of substantial harm to [her]self.”

On April 19, 2011, the juvenile court conducted a hearing on the delinquency petition, and, on April 20, 2011, the juvenile court entered a judgment finding the child to be dependent, ordering the child to be released from detention, and ordering DHR to assume custody of her. On April 22, 2011, DHR filed a motion to alter, amend, or vacate the juvenile court’s judgment, asserting, among other things, that the procedure outlined in Ala.Code 1975, § 12-15-215(a)(3)b., had not been followed, thereby violating DHR’s due-process rights; that DHR had not been notified of the proceedings; and that the juvenile court had acted outside its jurisdiction in making a dependency determination and in placing the child in DHR’s custody. On that same date, DHR requested that the juvenile court refer the case to the “multi-needs team or to the county child’s services facilitation team,” pursuant to Ala. Code 1975, § 12-15-215(a)(3)b. and § 12-15-502, and provide DHR with a copy of the court file regarding the child.

On May 16, 2011, the juvenile court purported to schedule a hearing on DHR’s postjudgment motion for May 25, 2011. On May 19, 2011, DHR objected to that hearing and moved to dismiss or to stay any further proceedings before the juvenile court, noting that DHR’s post-judgment motion had been denied by operation of law on May 6, 2011. See Rule 1(b), Ala. R. Juv. P.; and Rule 59.1(dc), Ala. R. Civ. P. On May 20, 2011, DHR moved this court for an emergency stay of the May 25, 2011, hearing. On that same date, DHR filed a petition for a writ of mandamus or, alternatively, a notice of appeal. We elected to treat that petition as an appeal.

Analysis

On appeal, DHR asserts that the juvenile court lacked the jurisdiction to make a dependency determination and to place the child in its custody. In support of that argument, DHR relies on this court’s opinion in Montgomery County Department of Human Resources v. McDermott, 74 So.3d 455 (Ala.Civ.App.2011). We agree that McDermott is directly on point and that the juvenile court acted outside of its jurisdiction in making a dependency determination and in placing the child in DHR’s custody.

In McDermott, the child came before a juvenile court based upon the filing of a delinquency petition; in that delinquency petition, the child was alleged to be a danger to the person or property of another, and the juvenile court ordered him to be placed in a youth detention facility. Id. at 457. After a hearing on the matter, the juvenile court ordered the child to be released from detention, but, because of concerns regarding the child’s home environment, the juvenile court found that the child could not be returned to his mother’s custody, found the child to be dependent, and ordered the Montgomery County Department of Human Resources (“the Montgomery County DHR”) to assume custody of the child. Id. at 458.

The Montgomery County DHR filed a postjudgment motion, challenging the juvenile court’s jurisdiction to enter that judgment; the Montgomery County DHR asserted that it had not been given notice of the proceedings until it had been ordered to assume custody of the child and that the juvenile court’s dependency jurisdiction had not been triggered. That motion was denied by operation of law, and the Montgomery County DHR appealed. On appeal, this court recognized that the juvenile court had acted outside its jurisdiction and reversed the juvenile court’s judgment. Id. at 458. In McDermott, this court stated:

“ ‘Juvenile courts are purely creatures of statute that have extremely limited jurisdiction.’ L.B. v. R.L.B., 53 So.3d 969, 972 (Ala.Civ.App.2010). A juvenile court’s jurisdiction to act extends only so far as authorized by the explicit terms of the empowering statute. See Ex parte K.L.P., 868 So.2d 454, 456 (Ala.Civ.App. 2003). Therefore, the question whether a juvenile court has acted within its proper bounds depends on the meaning of the statute bestowing jurisdiction. See id. Discerning the meaning of a jurisdictional statute involves a pure question of law, which this court reviews de novo. See J.W. v. C.B., 68 So.3d 878, 879 (Ala.Civ.App.2011). Accordingly, in determining whether the juvenile court acted within its jurisdiction, we do not presume that the juvenile court acted correctly in assuming the power to award custody of the child to [the Montgomery County] DHR. See id. Instead, we must determine anew whether the language of the relevant statute, the Alabama Juvenile Justice Act (‘the AJJA’), § 12-15-10 et seq., Ala.Code 1975, invests the juvenile court with the power to make such a custodial disposition in the manner in which it did.
“The terms of the AJJA specifically authorize a juvenile court to place a child in the custody of [the Department of Human Resources] in several instances, only two of which are pertinent to this appeal. First, a juvenile court may transfer custody of a child who has been adjudicated to be a dependent child to [the Department of Human Resources] pursuant to § 12-15-314(a)(3)a., Ala. Code 1975. Second, a juvenile court may transfer custody of a child who has been adjudicated to be a child in need of supervision to [the Department of Human Resources] pursuant to § 12-15-215(a)(3)b., Ala.Code 1975.
“By the explicit terms of its judgment, the juvenile court apparently attempted to invoke its dependency jurisdiction in order to transfer custody of the child to [the Montgomery County] DHR. The juvenile court declared the child to be dependent because of his home environment, and it ordered [the Montgomery County] DHR to assume custody of the child in order to find the child a proper physical custodian. However, the AJJA does not authorize a juvenile court to declare a child dependent ex mero motu without an evidentiary hearing held in accordance with due process.
“The AJJA specifically provides that the dependency jurisdiction of the juvenile court is triggered by the filing of a petition with a juvenile-court intake officer alleging facts sufficient to prove the dependency of the child. See §§ 12-15-114(a) and 12-15-120(a), Ala.Code 1975. The juvenile-court intake officer must then refer the dependency petition to [the Department of Human Resources]. § 12-15-118(2), Ala.Code 1975. The obvious purpose of the referral is to notify [the Department of Human Resources] of the dependency proceedings so that it may be given an opportunity to protect its interest in assuring the safe custodial disposition of the child. Hence, a juvenile court would violate the due-process rights of [the Department of Human Resources] if it adjudicated a child dependent and transferred custody of the child to [the Department of Human Resources] without providing [the Department of Human Resources] such notice and an opportunity to be heard. See generally Valero v. State Dep’t of Human Res., 511 So.2d 200 (Ala.Civ.App. 1987) (holding that due process must be observed in juvenile-court child-custody proceedings). The AJJA further provides that, if no response is filed to a dependency petition, the juvenile court may find a child dependent only if clear and convincing evidence presented in an adjudicatory hearing establishes the dependency of the child. See § 12-15-310(b), Ala.Code 1975. The record in the present case indicates that no such evidentiary proceeding was held. Consequently, the juvenile court did not have jurisdiction to adjudicate the child dependent or to transfer custody of the child to [the Montgomery County] DHR pursuant to its dependency jurisdiction.
“Section 12-15-215(a)(3)b. provides that if, upon proof beyond a reasonable doubt, a juvenile court finds a child to be in need of supervision and such child is in need of care or rehabilitation, the juvenile court may transfer legal and physical custody of the child to [the Department of Human Resources]
“ ‘provided however 1. that prior to any transfer of custody to the Department of Human Resources, the case shall first be referred to the county children’s services facilitation team, which must proceed according to Article 5’
“In this case, the juvenile court did not hold an adjudicatory hearing to find the child in need of supervision beyond a reasonable doubt and it did not refer the child to the appropriate county children’s services facilitation team. Hence, even if the juvenile court intended to transfer custody of the child to [the Montgomery County] DHR as a child in need of supervision, which is doubtful, it acted outside its jurisdiction by failing to comply with § 12-15-215(a)(3)b. and by failing to notify [the Montgomery County] DHR of the proceedings.”

74 So.3d at 457-58 (footnote omitted). Because the juvenile court had not acted pursuant to either of the two statutory mechanisms discussed above, this court concluded that the juvenile court had acted outside its jurisdiction in finding the child to be dependent and in ordering the Montgomery County DHR to assume custody of him. 74 So.3d at 458.

In this case, as in McDermott, no dependency petition regarding the child was filed with the juvenile court; the juvenile court in this case received only a delinquency petition regarding the child. See, e.g., Ala.Code 1975, § 12-15-120 and § 12-15-121 (recognizing that, as a general rule, a dependency action is initiated by the filing of a dependency petition). Additionally, in this case, as in McDermott, the juvenile court did not conduct an adjudicatory hearing at which clear and convincing evidence sufficient to establish the dependency of the child was presented. Thus, the juvenile court in this case cannot be deemed to have acted pursuant to the jurisdiction granted in § 12-15-310.

The record in this case further establishes that the juvenile court did not conduct an adjudicatory hearing to find that the child was in need of supervision and that the juvenile court did not refer the child to the appropriate county children’s services facilitation team. Thus, the juvenile court cannot be deemed to have acted pursuant to the jurisdiction granted in § 12-15-215(a)(3)b. We find no other statutory basis upon which the juvenile court could have relied in entering its judgment.

Because the juvenile court acted outside its jurisdiction in finding the child to be dependent and in ordering DHR to assume custody of the child, we conclude that the juvenile court’s judgment is void. Jones v. Sears Roebuck & Co., 342 So.2d 16, 17 (Ala.1977). A void judgment will not support an appeal. Id. Accordingly, we dismiss DHR’s appeal, albeit with instructions to the juvenile court to vacate its void judgment. We note that nothing precludes the juvenile court from exercising its jurisdiction to find the child dependent or in need of supervision if the juvenile court complies with the statutes discussed herein.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . The record before this court contains a “Notification of Detention Rights,” indicating that the child had been detained on April 17, 2011.

      . Both domestic violence in the third degree and menacing are defined as misdemeanors.

      . The juvenile court subsequently canceled the hearing scheduled for May 25, 2011; as a result, DHR moved to dismiss as moot its motion for an emergency stay of that hearing. This court granted that motion.


author: PER CURIAM.

text:
    Rodrigo BONILLA, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D09-3209.
    District Court of Appeal of Florida, Third District.
    May 23, 2012.
    Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for respondent.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   PER CURIAM.

We reconsider on remand our opinion in Bonilla v. State, 23 So.3d 1256 (Fla. 3d DCA 2009), which was quashed by the Supreme Court of Florida following its decision in Bonilla v. State, 75 So.3d 233 (Fla.2011). Pursuant to that mandate we grant Bonilla’s habeas corpus petition and remand for a new trial.

Rodrigo Bonilla was charged with second-degree murder. During his 2007 trial, the jury was given a faulty, pre-2008-amendment, manslaughter instruction. See In re Amends, to Std. Jury Instrs. In Crim. Cases—Instr. 7.7, 41 So.3d 853 (Fla.2010). There was no contemporaneous objection. Bonilla was found guilty of second-degree murder, as charged.

Bonilla’s appeal from that conviction was pending at the time that the First District Court of Appeal decided Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), affd, 39 So.3d 252 (Fla.2010). However, appellate counsel did not raise that issue in Bonilla’s appeal. This Court affirmed the conviction. Bonilla v. State, 19 So.3d 431 (Fla. 3d DCA 2009).

Thereafter, Bonilla filed a petition for habeas corpus seeking relief under Montgomery. We denied relief, but certified conflict with that decision. Following its opinion in State v. Montgomery, 39 So.3d 252 (Fla.2010), the Supreme Court of Florida quashed the decision and remanded the case.

We conclude that Bonilla is entitled to relief under Montgomery, 39 So.3d 252, because appellate counsel rendered ineffective assistance and “the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result.” Downs v. Moore, 801 So.2d 906, 909-10 (Fla.2001) (quoting Wilson v. Wainwright, 474 So.2d 1162, 1163 (Fla.1985)). As Bonilla was “convicted of second-degree murder after the jury was erroneously instructed on the lesser included offense of manslaughter!,]” he is entitled to relief under Montgomery. 39 So.3d at 258.

The issue should have been raised on appeal. See Lopez v. State, 68 So.3d 332 (Fla. 5th DCA 2011); Del Valle v. State, 52 So.3d 16 (Fla. 2d DCA 2010). The issue was not meritless and, had counsel raised it on appeal, this Court would have, at a minimum, affirmed and certified conflict with the First DCA decision. See Del Valle, 52 So.3d at 18-19.

Based on this conclusion, Bonilla is entitled to have his conviction set aside. As entertaining another appeal would be redundant in this case, we reverse the second-degree murder conviction, vacate the sentence, and remand for a new trial. See Del Valle, 52 So.3d at 19.

Reversed and remanded for a new trial.


author: EMAS, J.

text:
    Charles WELLONS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-142.
    District Court of Appeal of Florida, Third District.
    May 23, 2012.

      Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before ROTHENBERG and EMAS, JJ„ and SCHWARTZ, Senior Judge.
   EMAS, J.

Charles Wellons (“Wellons”) appeals his convictions and sentences for two counts of first degree murder and one count of carrying a concealed firearm. Wellons asserts that improper comments made by the prosecutor during closing argument required the trial judge to grant his motion for mistrial. We affirm.

BACKGROUND

On October 20, 2004, Stephenson Eans and Antwan Manning were shot and killed while hanging out with friends in a neighborhood alley in Liberty City. One of those friends was Wellons, who gave a statement to police that Eans and Manning were shot by two unidentified black men who jumped out of a grey Ford LTD. Wellons told police he was selling drugs in the alley on the night in question, and that he had been robbed twice on the same corner during the previous year. In his statement to police, Wellons said that he did not argue with Eans and Manning, and he did not have a gun with him.

At trial, James Richardson testified that he was present on the night of the shooting, and that Wellons, Eans and Manning did get into an argument just prior to the shooting. According to Richardson, the three men argued over drug-selling territory and, as Richardson was leaving the area, he heard gunshots going off. He did not see a grey Ford LTD.

Another witness, Jesse Wooden, testified that he was also in the alley on the night of the shooting, and saw the three men arguing. As Wooden walked away from the scene he heard a gunshot, and then ran and hid by a car, where he saw “pieces” of Wellons shooting Eans and Manning. After the shots stopped, Wooden went back to the alley where Eans and Manning, having been shot, were lying on the ground. According to Wooden, Manning uttered, “Man, Bailie, man, Bailie”. Wooden did not see a grey LTD, or any car, drive by during this time period.

A woman who lived in a house near the alley also testified that she heard young men arguing that night, heard gunshots within moments of the arguing, and never heard a car pass by.

The firearm used in the shooting was never recovered, and no direct physical evidence linked Wellons to the shooting. The prosecutor made the following statements during closing argument:

Prosecutor: And, you know, perhaps the CD player and those milk crates and doughnut aren’t as meaningful as the shoes or the bullet-holed clothing, but the victims’ actual clothing and his blood and Antwan’s blood and Stephenson’s blood, they’re real, and they’re in evidence now. And there’s something very profound about that that we have to take into consideration. And one of the things that has to be done is that, we need to remember that these were young lives that were—
Defense counsel: Objection, your honor.
The Court: Sustained.
Prosecutor: And during that time, that was when Mr. Wellons was so bored that he took a nice long yawn. See, it didn’t bother him.
Defense counsel: Objection, your honor.
The Court: Sustained.
Defense Counsel: Can I have a motion your honor?
The Court: Reserved.

The defense did not request a curative instruction. After closing arguments were completed and the jury received its final instructions, defense counsel moved for a mistrial based on the statement made by the prosecutor during closing. The court indicated its belief that the prosecutor’s comment on the defendant’s demeanor during trial was not improper, and the prosecutor agreed. The court reserved ruling on the motion for mistrial pending the jury’s verdict. The jury returned a verdict of guilty on all three charges, and the court denied the defense motion for mistrial.

ANALYSIS

It is well established in Florida that “a motion for mistrial should only be granted when an error is so prejudicial as to vitiate the entire trial.” Salazar v. State, 991 So.2d 364, 372 (Fla.2008) (quoting England v. State, 940 So.2d 389, 401-02 (Fla.2006)). As the supreme court has explained:

In order for the prosecutor’s comments to merit a new trial, the comments must either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise.

Spencer v. State, 645 So.2d 377, 383 (Fla.1994).

A ruling on a motion for mistrial is within the sound discretion of the trial court, and we review the denial of that motion under a standard of abuse of discretion. Salazar, 991 So.2d at 372.

Having reviewed the record, including the forty-one transcript pages of the State’s closing argument, we conclude that the trial court did not abuse its discretion in denying the motion for mistrial. The isolated comment made by the prosecutor during closing, while certainly improper , was, in this case, harmless error. Compare Rodriguez, 609 So.2d at 501; Williams, 550 So.2d at 29; with Baldez, 679 So.2d at 827. Accordingly, we affirm.

Affirmed.

      . Bailie is Wellons’ nickname.

        . See Rodriguez v. State, 609 So.2d 493, 501 (Fla.1992) (declaring "the defendant’s demeanor off the witness stand is not a proper subject for argument and in some cases may be unduly prejudicial.”). Accord Pope v. Wainwright, 496 So.2d 798 (Fla.1986); Williams v. State, 550 So.2d 28 (Fla. 3d DCA 1989); Baldez v. State, 679 So.2d 825 (Fla. 4th DCA 1996).


author: SHEPHERD, J.

text:
    Maria CALARESE, Appellant, v. Alberto WEISSFISCH, Appellee.
    No. 3D11-985.
    District Court of Appeal of Florida, Third District.
    May 23, 2012.

      Maria Calarese, in proper person.
    Levey, Filler, Rodriguez, Kelso & Magil-ligan and John R. Kelso, for appellee.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   SHEPHERD, J.

This is an appeal from a final order granting a judgment creditor’s motion for summary judgment in a proceeding supplementary filed against the judgment debtor’s wife. The order set aside the transfer by quitclaim of two parcels of real property on the ground they were fraudulently made in violation of sections 726.105(1) and 726.105(2), Florida Statutes (2009). Because the judgment creditor failed in his obligation to demonstrate there are no genuine issues of material fact and he is entitled to judgment as a matter of law, we reverse the final summary judgment for further proceedings.

The underlying action arose out of a failed business transaction between Alberto Weissfisch and Roberto Calarese. The action commenced November 3, 2003. On August 4, 2005, Weissfisch obtained a Default Final Judgment against Roberto Ca-larese in the sum of $123,304.04. Roberto Calarese’s wife, Maria Calarese, was not a party to the underlying action.

On March 3, 2003, six months before Weissfisch commenced the action, Roberto Calarese engaged in the two real property transfers at issue in this case. By one quitclaim deed, “ROBERTO CALARESE AND MARIA F. CALARESE, HUSBAND AND WIFE,” purported to convey a business parcel located in Miami-Dade County to “MARIA FELISA CA-LARESE, a married woman (“Grantee”) whose post office address is: 2547 Lane, Weston, Florida 33827.” By the second quitclaim deed, notarized the same day by the same notary public, “ROBERTO VICTOR CALARESE” purported to convey the Jardine Lane property, which appears to be Maria Calarese’s residence, to Maria Calarese.

On February 8, 2010, Weissfisch commenced the supplementary proceeding by third-party complaint against Maria Ca-larese. Notably, however, the third-party complaint sought only to set aside the quitclaim deed relating to the business parcel. According to Weissfisch’s motion for summary judgment, he discovered the second quitclaim deed just five weeks before he filed the motion for summary judgment. However, he did not seek to amend the third-party complaint to include the second deed before the trial court entered the summary final order voiding both deeds.

As we have stated on more than one occasion, on a motion for summary judgment the burden of proof is on the moving party to show there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966). “Until it is determined that the movant has successfully met this burden, the opposing party is under no obligation to show that issues do remain to be tried.” Id. The movant also has the burden to conclusively refute, by disproving or establishing the legal insufficiency of, affirmative defenses raised by the opposing party. See O’Neal v. Brady, 476 So.2d 294, 294 (Fla. 3d DCA 1985); see also Gray v. Union Planters Nat’l Bank, 654 So.2d 1288, 1288 (Fla. 3d DCA 1995) (“Where a defendant pleads an affirmative defense and the plaintiff does not by affidavit contradict or deny that defense, the plaintiff is not entitled to a summary judgment.” (quoting Johnson & Kirby, Inc. v. Citizens Nat’l Bank of Ft. Lauderdale, 338 So.2d 905, 906 (Fla. 3d DCA 1976))).

A careful review of the record in this case reflects Weissbach failed to conclusively refute the affirmative defenses raised by Maria Calarese, including, at a minimum: (1) the third-party complaint failed to state a cause of action with respect to the business parcel; (2) the tenancy by which she and her husband held title to the business parcel at the time of the transfer was a tenancy by the entireties, which, if true, would obligate the trial court to deny relief to Weissfisch as to that parcel, see Beal Bank, SSB v. Almand & Assocs., 780 So.2d 45, 53 (Fla.2001); (3) execution on the residential parcel is precluded by operation of Florida’s constitutional homestead provision, article X, section 4 of the Florida Constitution; and (4) with respect to either parcel, any fraudulent transfer claim is barred by section 726.110, Florida Statutes (2009), which extinguishes a cause of action under section 726.105(l)(a), unless the action is brought “within [four] years after the transfer was made or the obligation was incurred or, if later, within [one] year after the transfer or obligation was or could reasonably have been discovered by the claimant.”

Reversed and remanded for further proceedings.

      . The record reflects the quitclaim deed on the business parcel was recorded in the public records of Miami-Dade County on November 7, 2003, four days after Weissfisch filed his complaint against Alberto Calarese. There is no evidence in the record concerning whether the residence quitclaim was ever recorded. This fact might explain the apparent differing dates of discovery of the deeds by Weissfisch.


author: POLEN, J.

text:
    Marilyn KAUFMAN, as Attorney in fact for Jeanne YELNICK, Appellant, v. FS TENANT POOL III TRUST, a foreign corporation d/b/a Forum at Deer Creek, Appellee.
    No. 4D10-5122.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.
    Robin Bresky and Jonathan Mann of Law Offices of Robin Bresky, Boca Raton, for appellant.
    Scott M. Teich and Jason Friedman of Quintarnos, Prieto, Wood & Boyer, P.A., Fort Lauderdale, for appellee.
   POLEN, J.

Appellant, Marilyn Kaufman, as attorney in fact for her mother, Jeanne Yelnick, appeals the trial court’s order dismissing her case with prejudice for failure to appear at a case management conference. We hold that Kaufman’s failure to attend the conference must have been willful to warrant dismissal. As such, we reverse and remand to give the trial court the opportunity to support its order dismissing the underlying case with evidence of willful and contumacious failure to attend the court-mandated case management conference, or in the alternative, to allow the matter to proceed.

Kaufman, under a power of attorney, filed a complaint against FS Tenant Pool III Trust, doing business as Forum at Deer Creek, for several violations of the nursing home’s duty of care which it owed to its residents. Specifically, Kaufman alleged violations of sections 400.022(1), (2)(n), and (2)(o), Florida Statutes. Forum at Deer Creek filed an answer and affirmative defenses, denying the substantive allegations of Kaufman’s complaint. The trial court entered a sua sponte order referring the case to arbitration. The order was entered on January 7, 2008. Nothing else exists in the record until August 6, 2008, when Kaufman filed a motion for leave to amend the complaint to add Five Star Quality Care, Inc., a party with an ownership interest in Forum of Deer Creek. The record does not reflect that there was a ruling on the motion. Instead, on November 20, 2008, plaintiffs counsel moved to withdraw from the case due to irreconcilable differences between counsel and client, and the trial court granted the motion.

The trial court ordered a mandatory case management conference to be held on November 12, 2010. The order indicated that copies were sent by mail to Kaufman and counsel for the defense. After Kaufman failed to attend the case management conference, the trial court dismissed the case with prejudice for failure to appear. This appeal timely followed.

Kaufman argues that the trial court erred in dismissing her case with prejudice because it did not make the necessary findings to dismiss for failure to attend a case management conference. Kaufman contends that the trial court must have found willful noncompliance in order to dismiss the case. Forum at Deer Creek concedes that the trial court erred by failing to make the appropriate finding of willful noncompliance. Forum at Deer Creek suggests that the trial court have the opportunity to clarify its order and/or be granted time to review the record and evidence for conduct which rises to the level of willfulness or deliberate disregard/ noncompliance.

Florida Rule of Civil Procedure 1.200(c) provides that, upon “failure of a party to attend a” case management conference, the trial court may dismiss the action. Fla. R. Civ. P. 1.200(c). However, as this court held, the trial court must also find that the party willfully and contumaciously failed to attend the conference. Dedmon v. Kelly, 60 So.3d 585, 587 (Fla. 4th DCA 2011) (quoting First Fairway Condo. I Ass’n v. Gulf stream Roofing, Inc., 701 So.2d 652, 653 (Fla. 4th DCA 1997)); see also Zeigler v. Huston, 626 So.2d 1046, 1047 (Fla. 4th DCA 1993) (“A finding that the party’s conduct was willful and contumacious is necessary for entering a default under rule 1.200(c).”). Failure to include a finding of such willful and contumacious behavior in its order dismissing the case with prejudice is an abuse of discretion by the trial court. Dedmon, 60 So.3d at 587.

Forum at Deer Creek cites to Sonson v. Hearn, 17 So.3d 745 (Fla. 4th DCA 2009), to explain that this court should remand for further proceedings so the trial court can determine whether the inaction by Kaufman was willful and warranted dismissal. In Sonson, this court held that dismissal may be a proper sanction if failure to comply with a trial court order is deliberate. Sonson, 17 So.3d at 748. Therefore, this court should reverse and remand to the trial court “to affirm the authority of [the] trial judge[] to deliver the paramount sanction of dismissal when warranted.” Id.

Accordingly, we reverse and remand to the trial court for further proceedings consistent with this opinion.

Reversed and Remanded.

HAZOURI and LEVINE, JJ., concur.


text:
    US ACQUISITION, LLC, Appellant/Appellee, v. TABAS, FREEDMAN, SOLOFF, MILLER & BROWN, P.A., Appellee/Appellant.
    Nos. 4D10-3635, 4D11-715.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.

      Jonathan A. Ewing and Juan R. Serrano of Griffin & Serrano, P.A., Fort Lauder-dale, for US Acquisition, LLC.
    Gary M. Freedman, Stacey F. Soloff and Danielle N. Robinson of Tabas, Freedman, Soloff, Miller & Brown, P.A., Miami, for Tabas, Freedman, Soloff, Miller & Brown, P.A.
   POLEN, J.

US Acquisition, LLC (“US Acquisition”), appeals the trial court’s order granting Tabas, Freedman, Soloff, Miller & Brown, P.A.’s (“Tabas Freedman”) motion to enforce attorney’s charging lien (Case No. 4D10-3635). Tabas Freedman appeals the trial court’s final order determining attorney’s fees and costs (Case No. 4D11-715). These two separate appeals were previously consolidated by this court for record purposes, but we now sua sponte consolidate these two appeals for opinion purposes. Due to Tabas Freedman’s failure to record the charging lien with the Federal Aviation Administration (“FAA”), the lien was not perfected, pursuant to title 49, United States Code, section 44108(a). As a result, we reverse the trial court’s order enforcing the attorney’s charging lien which was attached to an aircraft.

Rockbridge Commercial Bank (“Rock-bridge”) was the lender in a transaction with Kaizen Aviation, LLC (“Kaizen”) where Kaizen borrowed over five million dollars from Rockbridge. A promissory note was executed and delivered and Kaizen defaulted on the obligations therein by failing to make monthly payments. The loan was secured by an aircraft as collateral. Tabas Freedman was retained by Rockbridge to file an action in replevin to recover the collateral aircraft. An order granting the request for a writ of replevin was granted, stating that there was a perfected security interest in the aircraft and the owner of the collateral aircraft undis-putedly defaulted. A separate order directing clerk of court to issue writ of re-plevin was also issued.

Subsequent to filing the replevin action, Rockbridge was taken over by the Federal Deposit Insurance Corporation (“FDIC”) and FDIC was substituted for Rockbridge in the action. Tabas Freedman filed a notice and claim of attorney’s charging lien, alleging its representation of Rock-bridge, as well as the unpaid amount of $56,425.21. Tabas Freedman soon withdrew as counsel from the action, while the outstanding debt remained unpaid by the bank to the law firm. It also filed a motion to enforce attorney’s charging lien and an order granting the motion was entered. US Acquisition became a party to this action when it was substituted for FDIC after it acquired the loan at an auction sale.

This appeal, case number 4D10-3635, followed the order granting the motion to enforce the charging lien, as U.S. Acquisition argues the validity of the lien due to Tabas Freedman’s failure to record the lien with the FAA.

“The charging lien is an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit. It serves to protect the rights of the attorney.” Sinclair; Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383, 1384 (Fla.1983). To impose such a lien, there must be: an express or implied contract between the attorney and client; an express or implied understanding that payment depends upon recovery; and to recover, there must be a failure to pay fees and/or a dispute to the amount of those fees. Id. at 1385. To perfect a charging lien, the only requirement is timely notice. Id.

In this case of first impression, U.S. Acquisition argues that because Ta-bas Freedman did not record the charging lien with the FAA, pursuant to the Federal Aviation Act of 1958, the lien was not perfected and, therefore, invalid. Tabas Freedman contends that U.S. Acquisition bases its arguments on inapplicable case law and that it put U.S. Acquisition on notice, thereby perfecting the lien. US Acquisition relies heavily on Creston Aviation, Inc. v. Textron Financial Corp., 900 So.2d 727 (Fla. 4th DCA 2005), which provides that “[ujntil a lien or other interest affecting title in a civil aircraft is recorded in the federal registry, it is valid only against those with actual notice.” Id. at 729. The purpose of recordation when aircraft title is affected is to “create a central clearing house for recordation of title and liens affecting civil aircraft ... so that a person would know where to find ready access to this type of information.” Id.

The lien at issue in Creston Aviation was a mechanic’s lien which was placed on the aircraft for services to the actual aircraft. Id. at 728-29; see § 329.51, Fla. Stat. (2011). The notice and claim of attorney’s charging lien in this case states that the lien is in the amount of $56,425.21 for unpaid compensation for legal services rendered. Section 713.58, Florida Statutes, explains that a lien for labor, or a mechanic’s lien as in Creston Aviation, is placed on the property of the person for whom labor or services are being performed, in favor of the person performing the labor or services. § 713.58, Fla. Stat. (2011). Such a lien is a possessory right of the serviceman’s and once he relinquishes possession, the lien is extinguished. Commercial Jet, Inc. v. U.S. Bank, N.A., 45 So.3d 887, 888 (Fla. 3d DCA 2010). A charging lien attaches to the judgment to ensure an attorney is compensated for his services. Leiby Taylor Steams Linkhorst & Roberts, P.A. v. Wedgewood Air Conditioning, Inc., 801 So.2d 127, 129 (Fla. 4th DCA 2001).

Title 49, United States Code, section 44108(a) requires that a conveyance, lease or instrument securing an aircraft is recorded in order to achieve validity against anybody but the parties involved or those having actual notice thereof. 49 U.S.C. § 44108(a) (2011). The lien in this case claims “entitlement to the aircraft” to the extent of “whatever the plaintiffs rights are in the aircraft or the proceeds of the aircraft based upon the work that [the] firm did in procuring the aircraft for this plaintiff.” We hold that the lien in this case is not a mechanic’s lien, thus distinguishing Crestón Aviation; however, the lien in this case is also not a typical charging lien that requires only timely notice because, if granted, it grants “entitlement to the aircraft” to the lienor.

The explanation offered by Tabas Freedman at its hearing stated that the law firm was claiming entitlement to the aircraft to the extent of the plaintiffs rights or entitlement to the proceeds from the aircraft. The notice and claim of attorney’s charging lien filed by Tabas Freedman also expressed that its lien attached to “all of the Plaintiffs rights, title and interest in any property or judgment that Plaintiff recovers.” Plaintiffs entitlement could include possession of the aircraft itself or its parts and/or “any and all logs, manuals and other technical records documents relating thereto, and together with any and all other associated items.”

In Crestón Aviation, this court explained that the purpose of recording the interests in aircrafts with the FAA “is operative to the extent that if the title or lien interest is not recorded in the FAA Aircraft Registry, then it will not be valid as against third parties without notice.” Creston Aviation, 900 So.2d at 731. The Supreme Court of the United States held in Philko Aviation, Inc. v. Shacket, 462 U.S. 406, 103 S.Ct. 2476, 76 L.Ed.2d 678 (1983), that Congress intended to protect innocent third parties from unknowingly accepting the transfer of an aircraft which has some claim, lien, or other legal interest attached. See id. at 411, 103 S.Ct. 2476. The recording system creates a centralized location for all potential transferees to search the FAA records before acquiring an interest in an aircraft without clear title. Id. Failure to record results in the misconception that title is clear when, in fact, the transferee is taking the aircraft subject to some lien, or other claim or interest. See id. at 411 n. 5, 103 S.Ct. 2476.

While it is true that a charging lien requires only timely notice for perfection, the charging lien in this case does not only attach to a monetary judgment, but also to the actual aircraft and/or its parts. Therefore, the lien which is attached to the aircraft should be recorded with the FAA, pursuant to federal law, to protect any third parties from subsequently purchasing an interest in the aircraft which inaccurately appears to have free and clear title. US Acquisition purchased the loan to the aircraft without notice, actual or constructive, that a lien was attached by Tabas Freedman. This is the exact situation which recordation would prevent, thereby shifting responsibility to the transferee to diligently search the FAA’s registry before obtaining an interest in the aircraft.

Tabas Freedman alleges that it attempted to record the lien, but the FAA refused to record because the lien did not affect the aircraft and only directs payment of money. However, the language in the letter from the FAA states that “The Order Granting Tabas, Freedman, Soloff, Miller & Brown PA’s Motion to Enforce Attorney’s Charging Lien” need not be recorded because it does not affect the aircraft itself. The correspondence does not support Tabas Freedman’s assertion that it did not have to record the actual charging lien and only shows the ineligibility of the court’s order referring to the enforcement thereof.

Based on current statutory and case law, as well as the facts of this case, we reverse the trial court’s order enforcing the charging lien which attached to the aircraft because the lien was not perfected through the act of recordation with the FAA, pursuant to title 49, United States Code, section 44108(a).

As to the issue of attorneys’ fees, case number 4D11-715, Tabas Freedman relies on a retainer agreement between the firm and its client, Rockbridge, which stated in relevant part that “[cjlient will be responsible for any attorneys’ fees incurred by Tabas Freedman in conjunction therewith including appellate fees” if payments are sought after using legal resources. The retainer agreement led to a separate appeal by Tabas Freedman when the trial court entered an order determining attorneys’ fees, reducing the amount of the award. After Tabas Freedman filed a motion for rehearing, which the trial court granted, an order was entered explaining that:

In reducing the number of hours determined by the Court to be reasonable in connection with Tabas Freedman’s charging lien, the Court deducted time that was spent after Tabas Freedman was notified that its services were no longer necessary and also deducted time that was not actually spent on representation of the client.

Tabas Freedman timely appealed the trial court’s order, arguing that it was error for the trial court to reduce the fees because the retainer agreement entitled it to fees incurred for its collection efforts. In reliance on Gossett & Gossett, P.A. v. Mervolion, 941 So.2d 1207 (Fla. 4th DCA 2006), Tabas Freedman argues that fees were recoverable and must be awarded if a contract provides as such.

This court reviews a trial court’s award of attorneys’ fees for abuse of discretion. Daddono v. Miele, 69 So.3d 320, 324 (Fla. 4th DCA 2011). However, a “trial court’s interpretation of a contract is a matter of law subject to a de novo standard of review.” Gossett, 941 So.2d at 1210 (citing Leisure Resorts, Inc. v. City of W. Palm Beach, 864 So.2d 1163, 1166 (Fla. 4th DCA 2003)). As discussed above, “[t]he charging lien is an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit. It serves to protect the rights of the attorney.” Sinclair, 428 So.2d at 1384 (citation omitted). “In order for a charging lien to be imposed, there must first be a contract between the attorney and the client.” Id. at 1385 (citation omitted).

In Gossett, this court reversed the trial court’s order which refused to award fees to a law firm for filing a supplemental petition to enforce its charging lien. Gossett, 941 So.2d at 1209. This court reasoned that “[i]n this case, the language of the contract is clear that by appellant’s filing of a supplemental petition to enforce its charging lien, it met the requirement of ‘necessary to institute suit for the collection of fees and advances due to us by you.’ ” Id. at 1210. This court relied on Berryer v. Hertz, 522 So.2d 510 (Fla. 3d DCA 1988), where a retainer agreement contained similar language. Id. at 511. The Third District held that the attorney/defendant “could counterclaim for the balance of his fee pursuant to the original retainer agreement,” and was also entitled “to attorney’s fees incurred in defending the case and prosecuting the counterclaim,” pursuant to the agreement. Gossett, 941 So.2d at 1210; see also Berryer, 522 So.2d at 511. Accordingly, this court held that “the trial court erred as to this issue by denying appellant attorney’s fees for having to bring the supplemental petition.” Gossett, 941 So.2d at 1210. The case was reversed and remanded, directing the trial court to conduct an evidentiary hearing to determine reasonable attorneys’ fees. Id. After the evidentiary hearing was conducted, the trial court should have then entered an amended final judgment. Id.

Therefore, based on this court’s holding in Gossett and the facts specific to the retainer agreement in this case, we hold that the trial court also erred in reducing the attorneys’ fees award.

Also on the issue of attorneys’ fees, Ta-bas Freedman moved for fees pursuant to Florida Rule of Appellate Procedure 9.400. Rule 9.400(b), in conjunction with subsection (a) of the same rule, allows the appellate court to award attorneys’ fees to the prevailing party when a timely motion for such fees is filed. Fla. R.App. P. 9.400(a-b). In its response to Tabas Freedman’s motion for attorneys’ fees, U.S. Acquisition likewise moved for attorneys’ fees pursuant to rule 9.400. Due to our reversal of the trial court’s order enforcing charging lien, we grant the motion for attorneys’ fees in favor of U.S. Acquisition and deny the motion for attorneys’ fees against Ta-bas Freedman.

Affirmed in part; Reversed in part; and Remanded.

TAYLOR and HAZOURI, JJ., concur.

      . Tabas Freedman stated at a related hearing that "all [they] have to do is provide notice of the charging lien.” In other words. Tabas Freedman concedes that the lien was not recorded with the FAA.

      . Also known as the Federal Aviation Act of 1958. Creston Aviation, 900 So.2d at 730.