author: MAIN, Justice. MURDOCK, Justice

text:
    Ex part: NEWPORT TELEVISION, LLC. (In re Cyndi Booth v. Newport Television, LLC).
    1111280.
    Supreme Court of Alabama.
    Nov. 30, 2012.
    H. William Wasden, Michael D. Strasa-vich, and Kristin T. Parsons of Burr & Forman, LLP, Mobile, for petitioner.
    Richard L. Watters, Mobile, for respondent.
   MAIN, Justice.

WRIT QUASHED. NO OPINION.

MALONE, C.J., and STUART, BOLIN, PARKER, and WISE, JJ., concur.

MURDOCK and SHAW, JJ., dissent.

MURDOCK, Justice

(dissenting).

In 2007, Newport Television, LLC, purchased from Clear Channel Broadcasting, Inc., the assets and operations of two television stations at which Cyndi Booth was employed. In conjunction with her employment, Booth and Clear Channel had entered into a noncompetition agreement. This case involves a dispute between Newport and Booth as to whether the noncom-petition agreement was assigned to, and thus enforceable by, Newport as part of its purchase of the two stations for which Booth worked. The trial court held that it was and entered a summary judgment for Newport. The Court of Civil Appeals reversed the summary judgment. Booth v. Newport Television, LLC, 111 So.3d 719 (Ala.Civ.App.2011). Newport sought cer-tiorari review by this Court of the Court of Civil Appeals’ decision. This Court granted that review, but today quashes the writ by which it did so. I dissent from this action. It appears to me that the trial court was correct. At best from Booth’s standpoint, the contract pursuant to which Newport purchased the assets and operations of Clear Channel (“the purchase agreement”) is ambiguous, and, if that is so, the trial court correctly construed it in favor of Newport. Arguably, in fact, the purchase agreement is unambiguous in favor of Newport.

Article 1.1 of the purchase agreement provides, rather simply, that Newport acquired “all right, title and interest of [Clear Channel] in and to the Station Assets.” Consistent with the notion of a sale of an entire business operation, Article 1.1 defines “Station Assets” as “all of the assets, rights and properties used or held for use exclusively [i]n the ownership and operation of the Stations.” (Emphasis added.) Booth’s noncompetition agreement indisputably falls within the emphasized language.

Following the above-quoted definitional language in Article 1.1 appears the following phrase: “including each of the following assets ....” Nothing in this phrasing restricts the language preceding it to only those items that follow.

It appears that a proper analysis of this case could stop at this point, resulting in a decision in favor of Newport.

For what it is worth, however, the following items are among those listed immediately after the “including” phrase:

“(d) the following contracts, agreements and leases (including employment agreements, ...) to which [Clear Channel] is party (collectively, the ‘Station Contracts’) and all rights thereunder ...: (i) all contracts, agreements and leases listed on Schedule 1.1(d) and (ii) all other contracts, agreements and leases that relate exclusively to the operation of the Stations.... ”

(Emphasis added.) Much of the controversy in this case revolves around the fact that Booth’s noncompetition agreement was not one of the agreements listed on Schedule 1.1(d). Even if one were to proceed past the analytical “stopping point” noted above, that fact would not be dispos-itive for two reasons.

First, the above-quoted passage from subsection (d) expressly states that the contracts sold to Newport pursuant to the purchase agreement include not only those contracts and agreements listed on Schedule- 1.1(d), but also those described in clause (ii), i.e., “all other contracts, agreements and leases that relate exclusively to the operation of the Stations.” Booth’s noncompetition agreement falls within this latter description. The fact that the drafter of the purchase agreement failed to include Booth’s noncompetition agreement on Schedule 1.1(d) casts doubt on the accuracy of a representation found elsewhere in the purchase agreement that Schedule 1.1(d) sets forth a “complete list of all contracts, agreements and leases that relate exclusively to the operation of the Stations.” In fact, given the existence and nature of Booth’s noncompetition agreement, the unassailable fact is that this representation is simply incorrect. Even assuming that we somehow could ignore the effect of the provisions of the purchase agreement discussed at the outset of this analysis and in the paragraph that follows, this circumstance would, at best, only create an ambiguity as to the parties’ intent.

Second, the representation that Schedule 1.1(d) constitutes a “complete list” of all contracts relating exclusively to the operation of the television stations is, itself, not absolute. Specifically, that representation ends with two explicit “other than” exceptions, i.e., types of contracts not necessarily included on Schedule 1.1(d). Both of these exceptions appear to describe Booth’s noncompetition agreement:

“contracts which were entered into in the ordinary course of business and (i) which are terminable on thirty (30) days’ notice or less without penalty or premium, or (ii) did not impose monetary obligations on [Clear Channel] in 2006, and are not reasonably expected to impose monetary obligations on [Clear Channel] in 2007, in excess of $250,000 and which impose no material restrictions on the operation of the Stations.”

Based on the foregoing, I respectfully dissent from the decision by this Court today to quash the writ of certiorari this Court previously granted in this case.

SHAW, J., concurs.

      . "In construing a statute, the use of a form of the word 'include' is significant, and generally thought to imply that terms listed immediately afterwards are an inexhaustive list of examples, rather than a bounded set of applicable items." In re Mark Anthony Constr., Inc., 886 F.2d 1101, 1106 (9th Cir.1989) (cited with approval in State ex rel. Riley v. Lorillard Tobacco Co., 1 So.3d 1, 12 (Ala.2008)); see also Friedman v. P+P, LLC (In re Friedman), 466 B.R. 471, 487 (9th Cir. BAP 2012) (“It is a well-established canon of statutory construction that when the word 'includes' or 'including' is followed by a list of examples, those examples are considered illustrative rather than exhaustive."); Puerto Rico Maritime Shipping Auth. v. I.C.C., 645 F.2d 1102, 1112 n. 5 (D.C.Cir.1981) (noting that it is "hornbook law” that a list following the word "including” is "illustrative, not exclusive”); and Bryan A. Garner, A Dictionary of Modern Legal Usage 431 (2d ed.1995) (noting that the term "including” "should not be used to introduce an exhaustive list, for it implies that the list is only partial”).


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Misty Cowart MARTIN v. Donald Jason COWART.
    2110430.
    Court of Civil Appeals of Alabama.
    Nov. 16, 2012.

      Dale Segrest of the Segrest Law Firm, Tallassee, for appellant.
   PITTMAN, Judge.

This is the second time these parties have been before this court. In the first appeal, which we dismissed as having been taken from a nonfinal order, we recounted the procedural history of the case as follows:

“[Misty Cowart Martin (‘the mother’) and Donald Jason Cowart (‘the father’) ] were married in February 1999, [when the father was 19 years old and the mother was 15 years old and pregnant with the parties’ child. The parties] divorced slightly over a year later, in March 2000. They agreed to share joint custody of the child, and their agreement was incorporated into the divorce judgment, which provided that the father would exercise his custodial periods during his regularly scheduled days off. Neither party was ordered to pay child support. In 2001, the mother filed a petition to modify the custody provision of the divorce judgment; that proceeding concluded when both parties agreed to confirm the original joint-custody provision of the divorce judgment.
“On February 11, 2009, the mother filed a second petition to modify the divorce judgment, seeking sole physical custody of the child, scheduled visitation for the father, and child support. On March 17, 2009, the father filed a counter[petition,] seeking a modification of the divorce judgment to award him sole physical custody of the child and ‘such other, further, different, and general relief to which he may, in equity and good conscience, be entitled.’ On April 3, 2009, the father filed a petition seeking a finding of contempt as to the mother, alleging that she had interfered with his custodial rights to the child and that she had intimidated the child.
“Following a hearing, the trial court [on December 16, 2010,] denied the petitions to modify filed by both parties

Martin v. Cowart, 84 So.3d 114, 115 (Ala.Civ.App.2011). The trial court’s December 16, 2010, order stated:

“The central contention of the mother is that joint custody is no longer feasible in that she is a resident of Montgomery County, Alabama. She contends that the best-interest standard applies, and the father contends that the [Ex parte ] McLendonl 455 So.2d 863 (Ala.1984),] standard applies according to the 2001 order of modification.
“The undersigned routinely warns parties submitting agreements based upon true joint custody of the perils of the same. The court is bound by law to consider such agreements and to accept them when the parties convince the court that they are proper under the facts and circumstances. In this case, the parties were given an opportunity to litigate this matter in 2000, and 2001, and they did not choose to do so. It is the court’s opinion that the parties have used the law concerning joint custody to their 1⅜⅞⅛⅝1 advantage in the past. The court cannot at this time find that either party has submitted a legally sound reason, supported in the evidence, to change the joint custody order of 2001, under either standard submitted by the parties.
“Accordingly, the mother’s Petition To Modify is DENIED, and further, the father’s Counter-Petition To Modify is DENIED.”

This court dismissed the mother’s appeal because the trial court had failed to rule on the father’s pending contempt petition. On December 27, 2011, the trial court dismissed the father’s contempt petition and entered a final judgment. The mother timely appealed, arguing that the trial court had erred in denying her petition to modify.

When the parties divorced, they were both living in Tallassee. The father was employed at Mount Vernon Mills, where he worked irregular hours, and the mother lived with her grandmother. The mother remarried soon after the parties’ divorce, but that marriage lasted only four months. After her second divorce, the mother lived with her grandmother again until she married for the third time in 2001. That marriage was also short-lived, and the mother was divorced before the end of 2001. In 2002, the mother moved to Montgomery. The mother and her fourth husband, whom she married in 2007, have been together since 2002. They have a child together, and, at the time of trial, the mother was pregnant with her third child.

The father has married twice since his divorce from the mother in 2000, and he has three children — one by the mother, one by his second wife, and one by his present wife. At the time of trial in 2010, the mother was not employed outside the home, the father was a Tallapoosa County law-enforcement officer, and the parties’ 11-year-old child was in the sixth grade at a magnet school in Montgomery.

The evidence was undisputed that the parties had never actually exercised true joint custody of the child after June 2001, when the mother’s first petition to modify the custody provision of the divorce judgment concluded with the parties’ agreement to confirm the original joint-custody provision of the divorce judgment. Rather, the mother has had de facto sole physical custody of the child, and the father has visited with the child on alternating weekends. The father claimed that, after the child started school, the child had spent half of every summer with him. The mother disputed that claim, but she acknowledged that the father’s summer visitation had been more extensive than his usual alternating-weekend visitation.

The evidence was also undisputed that, although the father has occasionally contributed funds to pay for various expenses associated with the child — such as school meals, school supplies, and clothing — he has never paid child support pursuant to Rule 32, Ala. R. Jud. Admin. Nor has he covered the child on his existing health-insurance policy. The child’s medical expenses are covered by Medicaid.

In 2001, the parties, who both lived in Tallassee at the time, agreed to confirm the original joint-custody provision of the 2000 divorce judgment. Beginning in 2002, however, and continuing for the next 8 years, the parties lived in different cities, the mother had de facto sole physical custody of the child, and the father visited with the child on alternating weekends. Given those material changes in the parties’ circumstances since the entry of the 2001 judgment, we are at a loss to understand the trial court’s statement that neither party “has submitted a legally sound reason, supported in the evidence, to change the joint custody order of 2001.”

“Where, as in the present case, there is a prior judgment awarding joint physical custody, ‘ “the best interests of the child’” standard applies in any subsequent custody-modification proceeding. Ex parte Johnson, 673 So.2d 410, 413 (Ala.1994) (quoting Ex parte Couch, 521 So.2d 987, 989 (Ala.1988)). To justify a modification of a preexisting judgment awarding custody, the petitioner must demonstrate that there has been a material change of circumstances since that judgment was entered and that ‘ “it [is] in the [child’s] best interests that the [judgment] be modified” ’ in the manner requested. Nave v. Nave, 942 So.2d 372, 376 (Ala.Civ.App.2005) (quoting Means v. Means, 512 So.2d 1386, 1388 (Ala.Civ.App.1987)).”

Ex parte Blackstock, 47 So.3d 801, 804-05 (Ala.2009).

We are also at a loss to understand what the trial court meant when it stated that “the parties were given an opportunity to litigate this matter in 2000, and 2001, and they did not choose to do so.” The material change of circumstances that was proved in this case occurred after the entry of the 2000 and 2001 judgments. If the trial court’s statement is meant to imply that it considered the parties somehow to be estopped from seeking a modification of the custody provisions of the earlier judgments, or barred by the doctrine of res judicata from relit-igating the custody issue, then the trial, court erred as a matter of law. “[M]atters of child custody are never res judicata, and the circuit court retains jurisdiction over the matter for modification upon a showing of changed circumstances.” Ex parte Lipscomb, 660 So.2d 986, 989 (Ala.1994) (quoted in Ex parte Snider, 929 So.2d 447, 459 n. 9 (Ala.2005)). See also Self v. Fugard, 518 So.2d 727, 730 (Ala.Civ.App.1987) (stating that “child custody determinations made pursuant to divorce proceedings, although final with respect to the particular set of circumstances currently before the court, are subject to modification and, in that sense, ongoing”) (emphasis added).

The evidence established a material change in circumstances, and the mother presented evidence indicating that it would be in the best interest of the child to award her sole physical custody. Although the father’s counterpetition for a modification also sought an award of sole physical custody of the child, he did not pursue that request at trial or cross-appeal from the judgment. Accordingly, we reverse the trial court’s judgment denying the mother’s petition to modify, and we remand this cause with instructions to award the mother sole physical custody of the child, to establish a schedule for the father’s visitation with the child, and to determine the father’s child-support obligation pursuant to Rule 32, Ala. R. Jud. Admin.

The mother is awarded $2,657 as an attorney fee on appeal.

REVERSED AND REMANDED WITH INSTRUCTIONS.

MOORE, J., concurs.

THOMPSON, P.J., and BRYAN and THOMAS, JJ., concur in the result, without writings.


text:
    Sylvia McCASKILL et al. v. Ernestine McCASKILL et al.
    2110425.
    Court of Civil Appeals of Alabama.
    Nov. 16, 2012.
    Creóla G. Ruffin, Mobile, for appellants.
    Nathan P. Friedlander, Mobile, for ap-pellees.
   PITTMAN, Judge.

In January 2010, Sylvia McCaskill sued her mother-in-law, Ernestine McCaskill, and Ernestine’s husband, Anthony McCas-kill, in the Mobile District Court, asserting a claim of malicious prosecution; Ernestine and Anthony filed an answer denying liability as to Sylvia’s claim and asserted a counterclaim alleging that Sylvia was liable to them for having abused process. After an ore tenus proceeding, the district court entered a judgment on May 7, 2010. The district court’s judgment indicates that Ernestine was determined not to be liable to Sylvia as a matter of law (see Rule 50(a) and Rule 50(dc), Ala. R. Civ. P.), that Anthony was found not liable to Sylvia based upon the evidence presented, and that Sylvia was found liable to Ernestine and Anthony on their counterclaim; Ernestine was awarded $750 and Anthony was awarded $2,500.

On May 21, 2010, the 14th day after the district court’s judgment was entered, Sylvia filed a postjudgment motion to alter, amend, or vacate the judgment. See Rule 59(e) and Rule 59(dc), Ala. R. Civ. P. The district court entered an order on May 26, 2010, allowing Ernestine and Anthony 10 days to respond to Sylvia’s postjudgment motion. On June 4, 2010, the 14th day after Sylvia filed her motion, Ernestine and Anthony filed a response to that motion.

Under Alabama law, among other motions, a postjudgment motion to alter, amend, or vacate under Rule 59, Ala. R. Civ. P., may not remain pending in a district court for more than 14 days without the express consent of all the parties, unless the appellate court to which an appeal of the judgment would lie extends the deadline or, pursuant to a 2008 amendment to Rule 59.1(dc), the district court enters an order extending the period up to an additional 14 days “for good cause shown.” Rules 59.1 and 59.1(dc), Ala. R. Civ. P. Because the parties did not consent on the record to extend the 14-day period, because no leave was obtained from the circuit court allowing Sylvia’s motion to remain pending outside the 14-day period, and because the district court did not enter an order on the record determining that good cause had been shown to extend the 14-day period, Sylvia’s motion was automatically denied on June 4, 2010, see Rule 59.1(dc), Ala. R. Civ. P., although the district court entered on order on June 11, 2010, purporting to deny Sylvia’s post-judgment motion.

A notice of appeal from a judgment of a district court must be filed “within 14 days from the date of the judgment or the denial of a posttrial motion, whichever is later.” Ala.Code 1975, § 12-12-70(a). The 14th day after the denial of Sylvia’s postjudgment motion, and the final day for filing a notice of appeal to the circuit court, was June 18, 2010. Sylvia filed a notice of appeal to the circuit court on June 21, 2010, three days late. However, despite that late filing, the circuit court proceeded to hear the appeal on its merits; it held an ore tenus proceeding, purported to grant Ernestine and Anthony’s motion for a judgment as a matter of law on Sylvia’s claim and on their amended counterclaim (in which they had asserted a claim against Sylvia and her attorneys, Creóla Ruffin and Vanessa Shoots, under the Alabama Litigation Accountability Act, Ala.Code 1975, § 12-19-270 et seq.), and entered a judgment on November 3, 2011, purporting to award damages of $12,071.56 to Ernestine and Anthony. Following the denial of their postjudgment motion directed to the circuit court’s judgment, Sylvia and her attorneys appealed to this court.

Although no party’s brief in this appeal has challenged our appellate jurisdiction, we must consider sua sponte whether we have jurisdiction over this appeal because “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). “Lack of subject matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu.” Ex parte Smith, 438 So.2d 766, 768 (Ala.1983). In this case, the jurisdiction of the circuit court to consider the parties’ claims de novo was not timely invoked, and because the circuit court lacked subject-matter jurisdiction, that court’s judgment is void and will not support an appeal to this court. See Singleton v. Graham, 716 So.2d 224, 225-26 (Ala.Civ.App.1998), and Davis v. Townson, 437 So.2d 1305, 1305-06 (Ala.Civ.App.1983).

Based upon the foregoing facts and authorities, we dismiss the appeal from the circuit court’s void judgment of November 3, 2011, purporting to award damages of $12,071.56 to Ernestine and Anthony. We instruct the circuit court to vacate its judgment after this court’s certificate of judgment has duly been issued pursuant to Rule 41, Ala. R.App. P., and to dismiss Sylvia’s appeal from the judgment of the district court. See Singleton, 716 So.2d at 226. Further, because no timely appeal was taken from the judgment of the district court, we note that that court’s judgment remains in effect. See id.

APPEAL DISMISSED WITH INSTRUCTIONS TO THE CIRCUIT COURT.

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

      . The appellants’motion to strike a portion of the appellees’ brief is denied as moot. The appellees’ motion pursuant to Rule 38, Ala. R.App. P., is denied.


text:
    CAMPING WORLD, INC. v. Michael MCCURDY.
    2110241.
    Court of Civil Appeals of Alabama.
    Nov. 16, 2012.

      Floyd D. Gaines and Paige J. Casey of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, for appellant.
    Joe C. Cassady, Jr., of Cassady & Cas-sady, LLP, Enterprise, for appellee.
   PITTMAN, Judge.

Camping World, Inc., appeals from a judgment of the Coffee Circuit Court denying its motion to set aside a default judgment entered against it in favor of Michael McCurdy.

On April 26, 2011, McCurdy initiated a civil action naming Camping World as a defendant. Camping World was served with McCurdy’s complaint on May 13, 2011. On June 21, 2011, McCurdy filed a motion under Rule 55(a), Ala. R. Civ. P., seeking the entry of a default judgment against Camping World. On June 27, 2011, the trial court granted McCurdy’s motion and entered a default judgment against Camping World. On July 8, 2011, the attorneys for Camping World appeared in the action. On July 20, 2011, Camping World filed a motion to set aside the default judgment pursuant to Rule 55(c), Ala. R. Civ. P., which motion included supporting affidavits. McCurdy did not file anything in opposition to, or otherwise respond to, Camping World’s motion.

On October 3, 2011, the trial court heard oral arguments on the motion to set aside the default judgment and, thereafter, denied the motion, stating that the motion had not been supported by “competent proof’ that Camping World had a meritorious defense to the action. Camping World timely appealed.

McCurdy’s complaint alleged that Camping World had negligently handled and damaged a recreational vehicle belonging to him that he had taken to Camping World’s facility for repairs. The complaint sought damages in the amount of $50,000 and $299.04 in court costs. In its motion to set aside the default judgment, Camping World contended that it was not the proper defendant to have been named in the complaint and, as support for that contention, submitted the affidavits of Brent Moody, a vice president of Camping World, and Gary Clifton, a senior claims representative at Gallagher Bassett Services, Inc. (“Gallagher Bassett”). The affidavits, Camping World asserted, amounted to evidence establishing a meritorious defense, demonstrated that Camping World should not be held responsible for not having answered the complaint, and showed that McCurdy would not be prejudiced if the trial court granted Camping World’s Rule 55(c) motion. Clifton’s affidavit, in particular, was supported by correspondence between Clifton and McCurdy’s attorney to show that settlement negotiations between Clifton and McCurdy’s attorney had commenced sometime before March 25, 2011. A copy of a letter to McCurdy’s attorney from Clifton dated June 15, 2011, less than one week before McCurdy sought the entry of a default judgment, expressly indicated that Clifton had engaged in the settlement negotiations on behalf of Emerald Coast Recreational Vehicle Centers, LLC, doing business as Camping World R.V. Sales (“ECRVC”), an affiliate of Camping World, and set forth a settlement offer.

On appeal, Camping World contends that Alabama caselaw dictates that the trial court should have granted its motion to set aside the default judgment. Specifically, Camping World raises two issues on appeal. The first issue on appeal is whether the trial court acted outside its discretion in denying Camping World’s motion to set aside the default judgment based on that court’s conclusion that Camping World had failed to establish “competent proof’ of a meritorious defense. The second issue is whether the trial court should have granted Camping World’s motion to set aside the default judgment after weighing the factors set out in Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala.1988).

It is well settled that trial courts are afforded discretion to determine whether to set aside a default judgment; a trial court’s decision in that regard will not be reversed unless the record reveals that the trial court acted outside that discretion. See Bennett v. Mortgage Elec. Registration Sys., Inc., 966 So.2d 935 (Ala.Civ.App.2007).

“ ‘A trial court has broad discretion in deciding whether to grant or deny a motion to set aside a default judgment. Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala.1988).... That discretion, although broad, requires the trial court to balance two competing policy interests associated with default judgments: the need to promote judicial economy and a litigant’s right to defend an action on the merits. 524 So.2d at 604.’
“Zeller v. Bailey, 950 So.2d 1149, 1152 (Ala.2006). This court has explained the following principles that guide our review of the trial court’s decision:
“ ‘Our supreme court has held that the trial court’s use of discretionary authority should be resolved in favor of the defaulting party where there is doubt as to the propriety of the default judgment. Johnson v. Moore, 514 So.2d 1348 (Ala.1987). Our supreme court has also established guidelines to assist a trial judge in exercising his discretion.’
“ ‘ “ ‘A trial court’s broad discretionary authority under Rule 55(c) should not be exercised without considering the following three factors: 1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.’
“ ‘ “Kirtland, 524 So.2d [600] at 605 [ (Ala.1988) ].”
‘Martin v. Crumpton, 883 So.2d 700, 703 (Ala.Civ.App.2003).’
“Rudolph [v. Philyaw ], 909 So.2d [200] at 202-03 [(Ala.Civ.App.2005) ]. ‘The law in Alabama is clear that the defaulting party has the initial burden of demonstrating the existence of the Kirtland factors.’ Id. at 203 (citing Ex parte Family Dollar Stores, 906 So.2d 892, 899-900 (Ala.2005); Phillips v. Randolph, 828 So.2d 269, 278 (Ala.2002); and Kirtland, 524 So.2d at 605-608).”

Bennett, 966 So.2d at 937.

When reviewing a trial court’s ruling on a Rule 55(c), Ala. R. Civ. P., motion and considering the Kirtland factors, we keep in mind that, “[although Rule 55(c), [Ala.] R. Civ. P., vests the trial court with discretion in ruling on a Rule 55(c) motion, Article I, §§ 6, 10, and 13, of the Alabama Constitution of 1901 requires that a trial court exhibit a large and liberal discontent against adjudication of rights by default.” Sanders v. Weaver, 583 So.2d 1326, 1328 (Ala.1991). In ruling on a Rule 55(c) motion, a trial court “must begin with the presumption that a litigant has a paramount right to defend on the merits and that, therefore, cases should be resolved on the merits whenever practicable.” Jones v. Hydro-Wave of Alabama, Inc., 524 So.2d 610, 613 (Ala.1988).

The first issue raised by Camping World is whether the trial court acted outside its discretion by denying Camping World’s Rule 55(c) motion based on its conclusion that Camping World had not established “competent proof’ of a meritorious defense. The evidence provided by Camping World tended to show that Camping World had been improperly named in the lawsuit. According to Camping World, the proper defendant in the action was, instead, ECRVC, because ECRVC, an affiliate of Camping World, had operated the repair facility to which McCurdy had taken his vehicle to be repaired; despite the affiliation and similar names, ECRVC and Camping World are separate entities, and Camping World contended that ECRVC was the only entity entrusted with the care and repair of the vehicle. Moody testified in his affidavit that ECRVC, not Camping World, had entered into a contract to perform work on McCurdy’s vehicle. Additionally, a letter from Gallagher Bassett to McCurdy’s counsel, which was attached as an exhibit to Clifton’s affidavit, expressly stated that Gallagher Bassett had engaged in settlement negotiations with McCurdy’s counsel solely in its capacity as a claims representative on behalf of ECRVC and not on behalf of Camping World. McCurdy offered no evidence to rebut Camping World’s position that it had been improperly named in the lawsuit, except to state that McCurdy had directed payment for the repairs to Camping World. The record does not include a copy of a check or other form of payment; in any event, evidence of McCurdy’s purported payment to “Camping World” would not have necessarily undermined, much less disposed of, Camping World’s argument that it had not been the entity with whom McCurdy had contracted for repair work because such payment very well may have been directed to ECRVC, which does business as Camping World RV Sales. In his brief to this court, McCurdy states that Gallagher Bas-sett had engaged in settlement negotiations with McCurdy’s attorney on behalf of Camping World, which is inconsistent with the written correspondence between Clifton and McCurdy’s attorney, which, as noted, was attached as an exhibit to Clifton’s affidavit.

We conclude that the evidence submitted by Camping World in support of its motion to set aside the default judgment was sufficient to establish a meritorious defense, and, thus, this Kirtland factor weighs in favor of granting its motion to set aside the default judgment. Alabama Pain Consultants, LLC v. Aspen Medical Products, Inc., 963 So.2d 666 (Ala.Civ.App.2007) (upon which Camping World relied in its motion to set aside and in its brief on appeal), “ ‘a defaulting party has satisfactorily made a showing of a meritorious defense when allegations ... in a motion to set aside the default judgment and its supporting affidavits, if proven at trial, would constitute a complete defense to the actions....’” 963 So.2d at 668 (quoting Kirtland, 524 So.2d at 606). In this case, if Camping World’s allegation that it had not undertaken any duty to McCurdy is proven at trial, it would operate as a complete defense to McCurdy’s claims; moreover, Camping World’s evi-dentiary showing in support of its position was not challenged by McCurdy. Because Camping World sufficiently demonstrated the existence of a meritorious defense, this Kirtland factor weighs in favor of granting the motion to set aside the default judgment, and the trial court erred in denying the motion based on its determination that Camping World had not presented evidence of a meritorious defense.

Next, we must address the remaining issue on appeal — whether the remaining two Kirtland factors weigh in favor of granting Camping World’s motion and, thus, support reversing the trial court’s judgment. See Kirtland, 524 So.2d at 605. First, we conclude that McCurdy would not have been prejudiced by the trial court’s setting aside the default judgment. McCurdy did not argue in the trial court that he would be prejudiced, and he does not contend that he would be prejudiced in his brief on appeal.

Second, we conclude that any culpability on the part of Camping World relating to Camping World’s failure to answer the complaint is not sufficient to support the trial court’s denial of Camping World’s Rule 55(c) motion in light of the evidence satisfying the first two Kirtland factors. As to the third Kirtland factor relating to culpability, we must consider whether Camping World, the defaulting party, acted willfully or in bad faith, 524 So.2d at 607, and, in resolving that issue, we look to Sanders in which a similar situation was addressed. In Sanders, the record revealed that an answer had not been filed due to the negligence of the defendant’s insurer’s claims representative, “not [due] to willful disregard of court rules.” 583 So.2d at 1329.

In this case, the record includes uncontested evidence indicating that Camping World expected Clifton, acting on behalf of ECRVC, to inform McCurdy that ECRVC, not Camping World, should have been named in the action and to negotiate a settlement or, if necessary, proceed with litigation on behalf of ECRVC. Whether Camping World’s failure to file an answer was the result of Clifton’s good-faith belief that the ongoing settlement negotiations with McCurdy’s attorney obviated the need to answer the complaint or was the result of Clifton’s inaction, such failure was, at worst, negligence; the correspondence between Clifton and McCurdy’s attorney regarding a settlement, especially Clifton’s letter dated June 15, 2011, extending a settlement offer to McCurdy’s attorney, demonstrates that Clifton was actively trying to settle the case, which, in turn, suggests that the failure to file an answer was based on Clinton’s good-faith belief that he would reach a settlement on behalf of ECRVC. Because “[n]egligence by itself is insufficient for refusing to grant a Rule 55(c) motion,” Sanders, 583 So.2d at 1328, and in light of the evidence satisfying the first two Kirtland factors, we conclude that the trial court acted outside its discretion by denying Camping World’s Rule 55(c) motion.

REVERSED AND REMANDED.

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


author: PITTMAN, Judge. MOORE, Judge,

text:
    Kevin STOBER v. Kimberly BRIMER.
    2101186.
    Court of Civil Appeals of Alabama.
    Nov. 16, 2012.
    Joseph T. Simonetti, Jr., of Hayes, Jackson, Weaver & McKinney, LLC, Birmingham, for appellant.
    Kimberly Brimer, pro se.
   PITTMAN, Judge.

Kevin Stober (“the former husband”) appeals from a judgment of the St. Clair Circuit Court holding him in contempt of court for failure to fulfill his postminority-support obligation to his daughter.

In April 2009, Kimberly Brimer (“the former wife”) filed a petition for a rule nisi alleging that the former husband had failed to abide by an April 2007 court order directing him to pay for one-half of up to four years of undergraduate education for the parties’ daughter. The former wife also sought an attorney’s fee. A hearing on the former wife’s petition was held in September 2009, at which the former husband did not appear. In October 2009, the trial court issued a judgment finding the former husband in contempt of court and ordering him to pay one-half of the $14,000 the former wife had expended toward their daughter’s undergraduate education. Additionally, the court ordered the former husband to pay an attorney’s fee in the amount of $2,500 within 30 days of the date of the order.

On November 17, 2009, the former husband filed a motion to vacate the judgment finding him in contempt of court. On December 9, 2009, the former husband filed a “motion to continue” the hearing on his motion to vacate, which the trial court granted the following day. The case was set for a status conference on January 13, 2010. On February 11, 2010, without having ruled on the former husband’s motion to vacate, the trial court scheduled the case for a “final hearing” on February 23, 2010. After conducting a hearing, which began on February 23 and which was continued on other days, the trial court purported to issue a final order on June 17, 2011, again granting the former wife’s petition for a rule nisi. In that order, the trial court directed the former husband to pay a specific (and higher) amount than it had directed him to pay in the October 2009 judgment, although it did give him credit for the financial-support obligations he demonstrated he had fulfilled. The former husband thereafter filed a motion under Rule 59, Ala. R. Civ. P., to alter, amend, or vacate the June 17, 2011, order. The court held a hearing on the former husband’s motion. It denied the motion on August 10, 2011, and the former husband filed this appeal.

Under Rule 59.1, Ala. R. Civ. P., a motion to vacate a trial court’s judgment must be ruled upon within 90 days or that motion is deemed denied by operation of law. Further, Rule 59.1 requires the express consent of all parties in order for the running of the 90-day period to be tolled. In this case, both parties did not expressly consent to stay the running of the 90-day postjudgment period; therefore, the former husband’s original motion to vacate was denied by operation of law on February 16, 2010, and the trial court lost jurisdiction over the case after that point. Harrison v. Alabama Power Co., 371 So.2d 19, 21 (Ala.1979).

The dissent is premised on the conclusion that the February 11, 2010, entry on the trial court’s case-action summary (“the entry”), which set the case for “final hearing” on February 23, 2010, amounted to the rendition of an order granting the former husband’s motion to vacate; relying on the trial judge’s statement made at the beginning of the February 23 hearing that, “for the record,” the judgment previously entered in October 2009 should be set aside and that the parties were “back a square one” because the court intended to conduct a new trial on the merits of the case, the dissent construes the entry as a grant of the former husband’s motion to vacate. We disagree. Despite any intent the trial judge may have had to begin anew by vacating the October 2009 judgment and commencing a new trial, the trial judge nonetheless scheduled a “final hearing” for February 23. As of the date the entry was made, no hearing had been held on the former husband’s motion to vacate because the previously scheduled hearing on that motion had been continued; the parties had only met with the trial judge for a status conference since the former husband’s filing of the motion to vacate. It, therefore, reasonably follows that the trial judge used the term “final hearing” to refer to a hearing on the former husband’s motion to vacate. Though the apparent intent of the trial judge may be a factor properly considered in attempting to interpret ambiguous action taken by a trial judge, we are not presented here with an ambiguity. Indeed, the entry refers to the proceeding the trial judge intended to schedule as a “final hearing ” and does not employ the terms “trial” or “new” or “grant.” There is no reasonable basis for determining that the entry should be construed as doing anything other than setting a hearing on the former husband’s motion. Moreover, because the entry suggests no basis on which to conclude that the trial judge granted the motion to vacate, the only evidence in the record that could possibly prompt one to conclude that the entry was, in effect, a grant of the motion to vacate is the trial judge’s statements at the February 23 hearing; we are not, however, permitted to rely on those remarks because, as noted earlier, the 90-day period during which the trial court could have granted a new trial expired on February 16, 2010. See Starr v. Wilson, 11 So.3d 846, 850 (Ala.Civ.App.2008).

Moreover, even if we were permitted to consider the trial judge’s statements at the February 23 hearing in determining whether the case-action summary included a notation by the trial judge meant to be interpreted as a grant of the former husband’s motion to vacate, there exists no connection between the trial judge’s statements on February 23 and the entry to suggest that the trial judge’s statements support the conclusion that the entry was an implicit grant of the motion to vacate, as is urged by the dissent. In fact, the record reflects the contrary. For example, when the trial judge scheduled proceedings in the matter to be conducted after the February 23 hearing, he identified the proceedings as “completion of testimony,” “case[s],” “trial,” and “bench trial”; the only subsequent proceeding the judge scheduled that was identified as a “hearing” was a hearing scheduled to address a specific issue in the case. The fact that the court held a number of proceedings between February 23, 2010, and August 10, 2011, when the case was purportedly concluded, and identified only one of those proceedings — the only one scheduled to address a specific issue — as a “hearing” is inconsistent with the dissent’s position that the entry implicitly granted the former husband’s motion to vacate and scheduled a new trial. Additionally, even though we are not permitted to rely on the trial judge’s statement at the February 23, 2010, hearing, the judge at that hearing stated that his October 2009 judgment was “hereby” set aside and “we’re back at square one”; those statements were made in the present tense and, thus, indicate that the judge was purporting to grant the motion to vacate and to commence a new trial on February 23, 2010, a week after the 90-day period had expired.

Because the trial court lacked jurisdiction, its June 17, 2011, order was void. See J.B. v. A.B., 888 So.2d 528, 532 (Ala.Civ.App.2004) (“An order entered by a trial court without jurisdiction is a nullity.”). “A void judgment will not support an appeal, and ‘an appellate court must dismiss an attempted appeal from such a void judgment.’ ” Colburn v. Colburn, 14 So.3d 176, 179 (Ala.Civ.App.2009) (quoting Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008)). Accordingly, we dismiss the former husband’s appeal and instruct the trial court to vacate any orders entered after February 16, 2010 in this matter.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

MOORE, J., dissents, with writing.

MOORE, Judge,

dissenting.

Because I conclude that the appeal filed by Kevin Stober (“the former husband”) was timely filed, I respectfully dissent.

On October 22, 2009, the trial court entered a judgment finding the former husband in contempt and ordering him to pay one-half of the amount Kimberly Brimer (“the former wife”) had expended toward the college expenses of the parties’ child. On November 17, 2009, the former husband timely filed a postjudgment motion, pursuant to Rule 59, Ala. R. Civ. P., seeking a new trial. On February 11, 2010, during the 90-day period following the filing of the former husband’s postjudgment motion, the trial court made a handwritten notation on the case-action-summary sheet setting the cause for a “final hearing” on February 23, 2010.

On February 23, 2010, at the beginning of that final hearing, the trial court stated that its previous judgment was set aside and “we’re back to square one.” The trial court then proceeded to conduct a new trial to determine whether the former husband should be held in contempt for his failure to pay one-half of the child’s college expenses; ore tenus evidence was received at that hearing. On June 17, 2011, after testimony had been continued over several days, the trial court entered a final judgment again finding the former husband in contempt and ordering him to pay certain amounts toward the child’s college expenses. The former husband timely filed a postjudgment motion, which the trial court denied on August 10, 2011. The former husband then filed his notice of appeal within 42 days of that denial.

I conclude that the trial court implicitly granted the former husband’s November 2009 postjudgment motion within the 90-day period allowed by Rule 59.1, Ala. R. Civ. P. The trial court granted that motion as evidenced by its February 11, 2010, handwritten notation on the case-action-summary sheet setting the matter for a final hearing. The trial court’s own comments at the beginning of the February 23, 2010, hearing further support that interpretation. Pursuant to Rule 59.1, Ala. R. Civ. P., the rendering of an order on a postjudgment motion before the expiration of the 90th day prevents the automatic denial of that motion by operation of law, although the order must still be entered in accordance with Rule 58, Ala. R. Civ. P., for purposes of calculating the time for taking an appeal pursuant to Rule 4, Ala. R.App. P. See Committee Comments to Amendment to Rule 59.1, Effective October 24, 2008. Because I conclude that the trial court timely granted the former husband’s November 2009 postjudgment motion, I respectfully dissent from the dismissal of the former husband’s appeal.

      . The 90th day following the former husband's filing of his postjudgment motion on November 17, 2009, was Monday, February 15, 2010, which was a State holiday commemorating George Washington's and Thomas Jefferson’s birthdays. Therefore, the former husband’s postjudgment motion was deemed denied on Tuesday, February 16, 2010. See Williamson v. Fourth Ave. Supermarket, Inc., 12 So.3d 1200, 1203-04 (Ala.2009); First Alabama Bank v. McGowan, 758 So.2d 1116 (Ala.Civ.App.2000); and Richburg v. Cromwell, 428 So.2d 621 (Ala.1983).


author: JOINER, Judge.

text:
    Richard TOLBERT v. STATE of Alabama.
    CR-10-0690.
    Court of Criminal Appeals of Alabama.
    Aug. 26, 2011.
    Rehearing Denied Dec. 9, 2011.
    James Calvin Mclnturff, Pell City, for appellant.
    Luther Strange, atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.
   JOINER, Judge.

Richard Tolbert pleaded guilty to the unlawful possession of a controlled substance, namely dihydroeodeinone (brand name Lortab), in violation of § 13A-12-212, Ala.Code 1975. Tolbert was sentenced to 15 years’ imprisonment pursuant to the Alabama Habitual Felony Offender Act. Tolbert’s sentence was suspended, and he was placed on five years’ probation. Tolbert was ordered to pay court costs, a $100 erime-victims-compensation assessment, a $100 forensic-trust assessment, and a $1,000 drug-demand-reduction assessment, to be retaxed upon completion of a drug-rehabilitation course. Tolbert reserved the right to appeal the circuit court’s denial of his motion to suppress the discovery of the controlled substance that resulted in his guilty plea and conviction. This appeal ensued. We affirm.

At Tolbert’s suppression hearing, Officer Phillip Harris testified that on the night of November 21, 2009, he and his partner, Officer Sandy Jackson, were on duty as plain-clothed police officers investigating illegal drug activity in the West Police Precinct of Birmingham. Officer Harris stated that his operation was part of a larger police department initiative during the end of 2009 to reduce illegal drug activity. Officer Harris said that he and Officer Jackson parked their unmarked vehicle near the intersection of Ninth Street and Franklin Avenue in an area where the police department had recently received numerous complaints of illegal drug activity. Officer Harris testified that he observed a black Cadillac automobile with three occupants parked 15 to 20 feet from his vehicle. Officer Harris stated that he observed an occupant in the driver’s seat, the passenger seat, and the backseat of the Cadillac. Officer Harris said that he was positioned on the passenger side of the Cadillac and that he observed the passenger side of the vehicle.

Officer Harris testified that he witnessed numerous vehicles pull beside the passenger side of the Cadillac and stated that he observed hand-to-hand transactions between those vehicles and the front passenger window of the Cadillac. According to Officer Harris, someone from the other vehicles “would hand an unknown amount of cash and somebody out of the Cadillac would hand an unknown object back.” Officer Harris stated that based on his narcotics training and field experience, he suspected illegal drug deals were being conducted from the Cadillac, prompting him to radio a uniformed police unit in the area. Officer Harris said that the Cadillac then drove from the scene but was pulled over by a responding police unit shortly thereafter at the intersection of Tenth Street and Alabama Avenue. Officer Harris testified that after responding officers pulled over the Cadillac, he observed Tolbert as the passenger in the Cadillac. Officer Harris identified Tolbert in court as the passenger.

Officer Sandy Jackson testified that on November 21, 2009, he and Officer Harris observed several vehicles parked behind a McDonald’s fast-food restaurant off Lomb Avenue in Birmingham and saw several males congregating in the area. Officer Jackson stated that he and Officer Harris then parked their unmarked vehicle nearby to observe. Officer Jackson said that he then saw a black Cadillac pull onto the scene. According to Officer Jackson, several cars then pulled up to the passenger side of the Cadillac in sequence, and occupants of the cars then conducted hand-to-hand transactions with someone in the Cadillac. Officer Jackson testified that his experience observing illegal narcotics transactions led him to believe that illegal narcotics transactions were occurring.

Officer Jackson stated that he then radioed a local police unit that subsequently pulled over the Cadillac. Officer Jackson said that after the Cadillac was pulled over, he observed the passenger get out of the vehicle. Officer Jackson identified Tolbert as the passenger in court. Officer Jackson testified that he did not identify Tolbert before Tolbert got out of the Cadillac after it was pulled over by police.

Officer Jacorey Foster testified that he responded to Officer Harris and Officer Jackson’s radio call and pulled over a Cadillac Deville near Lomb Avenue. Officer Foster identified Tolbert as the passenger in the vehicle and stated that he asked Tolbert if he had any illegal contraband on his person or if there was any illegal contraband in the vehicle. Officer Foster said that he asked Tolbert to step out of the vehicle and that Tolbert complied with his request. Officer Foster testified that he then explained to Tolbert “what was going on” and asked Tolbert if he could perform a patdown on him to determine if Tolbert was carrying any weapons. Officer Foster stated that Tolbert consented to the patdown.

Officer Foster said that, in the course of the patdown, he discovered plastic bags in Tolbert’s front left pants pocket containing “a white rock-like substance and three pills.” Officer Foster testified that when conducting the patdown on Tolbert, the bags did not feel like a gun or knife. Officer Tolbert did not testify that he suspected that the plastic bags contained drugs upon feeling them during the pat-down. Officer Foster stated that he then called poison control to discern the composition of the pills and that he arrested Tolbert thereafter.

The sole issue Tolbert raises on appeal is the legality of the warrantless search resulting in the discovery of the evidence forming the basis of his conviction. Because the facts are not in dispute, our review is de novo. See, e.g., Cannon v. State, 985 So.2d 968, 970 (Ala.Crim.App.2007).

Regarding warrantless searches and seizures,

“ ‘ “[t]his court has long held that war-rantless searches are per se unreasonable, unless they fall within one of the recognized exceptions to the warrant requirement. See, e.g., Chevere v. State, 607 So.2d 361, 368 (Ala.Cr.App.1992). These exceptions are: (1) plain view; (2) consent; (3) incident to a lawful arrest; (4) hot pursuit or emergency; (5) probable cause coupled with exigent circumstances; (6) stop and frisk situations; and (7) inventory searches. Ex parte Hilley, 484 So.2d 485, 488 (Ala.1985); Chevere, supra, 607 So.2d at 368.” ’
“State v. Mitchell, 722 So.2d 814 (Ala.Cr.App.1998), quoting Rokitski v. State, 715 So.2d 859 (Ala.Cr.App.1997).”

State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999).

The State argues initially that the controlled substance in the plastic bags in Tolbert’s pocket was discovered by a lawful “stop-and-frisk” search under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); Ex parte Warren, 783 So.2d 86, 90 (Ala.2000) (discussing the “plain-feel” doctrine announced in Dickerson and recognizing that contraband discovered during a valid Terry search maybe seized if “the incriminating nature of the object detected by the officer’s touch ... [is] immediately apparent to the officer so that before seizing it the officer has probable cause to believe the object is contraband”). We disagree.

Officer Foster testified that when patting down Tolbert, he did not believe that the object in Tolbert’s pants pocket, which was later revealed to be the bags containing a controlled substance, was a weapon. Moreover, Officer Foster never testified that, when patting down Tolbert, it was immediately apparent to him that the object in Tolbert’s pants pocket was contraband before he removed it from the pants pocket. Consequently, neither Terry nor Dickerson authorized the search and seizure of the controlled substance in this case. See also Davis v. State, 901 So.2d 759, 765 (Ala.Crim.App.2004).

Although neither Terry nor Dickerson authorized the search and seizure in this case, we may affirm the trial court’s judgment “on any valid ground or rationale, even one rejected or not considered by the trial court, so long as notice of the ground, and an opportunity to respond is shown by the record to have been available, to satisfy the minimum requirements of due process.” Ex parte Kelley, 870 So.2d 711, 714 (Ala.2003). In the present case, the search and seizure were justified under the search-incident-to-a-lawful-arrest exception to the warrant requirement.

In Woods v. State, 695 So.2d 636, 640 (Ala.Crim.App.1996), this Court noted:

“‘Whether there is probable cause to merit a warrantless search and seizure is to be determined by the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “Probable cause exists where all the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and that contraband would be found in the place to be searched.” Sheridan v. State, 591 So.2d 129, 130 (Ala.Crim.App.1991).’ ”

Additionally, in State v. Montgomery, 968 So.2d 543, 548 (Ala.Crim.App.2006), this Court stated:

‘“Probable cause to support a war-rantless arrest must exist at the time of the arrest. Davis v. State, 507 So.2d 1023 (Ala.Cr.App.1986). Probable cause exists if facts and circumstances known to the arresting officer are sufficient to warrant a person of reasonable caution to believe that the suspect has committed a crime. United States v. Rollins, 699 F.2d 530 (11th Cir.) cert. denied, 464 U.S. 933, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983). “Probable cause to arrest is measured against an objective standard and, if the standard is met, it is unnecessary that the officer subjectively believe that he has a basis for the arrest.” Cox v. State, 489 So.2d 612 (Ala.Cr.App.1985). The officer need not have enough evidence or information to support a conviction in order to have probable cause for arrest. Only a probability, not a prima facie showing, of criminal activity is the standard of probable cause. Stone v. State, 501 So.2d 562 (Ala.Cr.App.1986).
“Dixon v. State, 588 So.2d 903, 906 (Ala.1991).”

In the instant case, Officer Harris’s testimony and Officer Jackson’s testimony were sufficient to prove probable cause to suspect that illegal drug distribution had occurred from the vehicle in which Tolbert was a passenger based on the totality of the following circumstances: (1) their observation of a street-side gathering at night in an area where the police department had recently received numerous complaints of illegal drug activity; (2) their testimony that they had specialized training and experience in observing and detecting illegal drug transactions; and (3) their observation of a succession of furtive hand-to-hand cash transactions between Tolbert’s vehicle and other vehicles that their training and experience led them to believe were illegal drug transactions. See Ex parte Tucker, 667 So.2d 1339, 1345 (Ala.1995) (“The fact that an area is known for crime may serve to create a reasonable suspicion in the minds of the police that may support a finding of probable cause.”); Ex parte Kelley, 870 So.2d at 723 (“ ‘[0]ur cases have recognized that a police officer may draw inferences based on his own experience in deciding whether probable cause exists.’ ... ‘A trial judge views the facts of a particular case in light of the distinctive features and events of the community; likewise, a police officer views the facts through the lens of his police experience and expertise. The background facts provide a context for the historical facts, and when seen together yield inferences that deserve deference.’ ” (quoting Ornelas v. United States, 517 U.S. 690, 699-700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996))).

Additionally, although Officer Harris’s and Officer Jackson’s testimony reveals that they could not identify Tolbert at the time they observed the suspicious transactions conducted from the Cadillac, both officers testified that the transactions occurred from the front passenger window of the Cadillac. Officer Harris and Officer Jackson testified that they identified Tol-bert as the front-seat passenger when Tol-bert got out of the Cadillac after Officer Foster pulled the vehicle over shortly after Harris and Jackson radioed Foster. Officer Harris’s and Officer Jackson’s observations were sufficient to establish probable cause that Tolbert was more than an innocent passenger and that Tol-bert participated in an illegal drug deal or at least exerted constructive possession over the controlled substances suspected of being exchanged. See Black v. State, 74 So.3d 1054, 1060 (Ala.Crim.App.2011) (“ ‘ “Constructive possession of contraband may be shown by proof of dominion and control over a vehicle containing contraband .... ” A controlled substance may be jointly possessed, and possession may be established by circumstantial as well as direct evidence.... “Proximity to illegal drugs, presence on the property where they are located, or mere association with persons who do control the drugs may be sufficient to support a finding of possession when accompanied with testimony connecting the accused with the incriminating surrounding circumstances.” ’ ” (citations omitted)).

Officer Foster stopped the vehicle in which Tolbert was traveling and searched Tolbert based on the radio call from Officer Harris and Officer Jackson. In Ex parte Boyd, 542 So.2d 1276, 1284 (Ala.1989), the Alabama Supreme Court stated:

“It is a ‘well-recognized principle that, where a group of officers is conducting an operation and there is at least minimal communication among them, [the appropriate course is to] look to the collective knowledge of the officers in determining probable cause.’ ‘[P]robable cause may emanate from the collective knowledge of the police, though the officer who performs the act of ... searching may be far less informed.’ ”

(Citations omitted.) Thus, based on his communication with Officers Harris and Jackson, Officer Foster had probable cause to stop the vehicle and had probable cause to believe that Tolbert had committed a crime.

In Maryland v. Pringle, 540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003), the United States Supreme Court found that where the police had probable cause to suspect that a vehicle was being used to facilitate recent illegal drug distribution, the police also had probable cause to arrest each occupant of the vehicle. Pringle was the front-seat passenger in an automobile stopped by police. The automobile contained two other occupants: the driver and a backseat passenger. Police conducted a consensual search of the automobile that yielded $763 cash and five plastic baggies containing cocaine. The Court concluded that the evidence found in the search indicated a likelihood of drug dealing. The Court stated that the likelihood of drug dealing allowed the police to infer a common enterprise among the occupants of the vehicle, creating probable cause to arrest Pringle. The Court stated:

“Here we think it was reasonable for the officer to infer a common enterprise among the three men. The quantity of drugs and cash in the car indicated the likelihood of drug dealing, an enterprise to which a dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him.”

Pringle, 540 U.S. at 373. The Court further stated:

“We think it an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine. Thus, a reasonable officer could conclude that there was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or jointly.”

Pringle, 540 U.S. at 372. See also Montgomery, 968 So.2d at 550-51 (quoting Melson v. State, 775 So.2d 857, 879 (Ala.Crim.App.1999)):

“ ‘The probable cause standard does not require an arresting officer to rule out all other possible suspects before he or she detains a particular individual. See State v. Johnson, 682 So.2d 385, 391 (Ala.1996) (Maddox, J., concurring specially); see also Darden v. State, 571 So.2d 1272, 1279-80 (Ala.Cr.App.1990), quoting 1 W. LaFave, Search and Seizure § 3.2(e) at 591-92 n. 148 (2d ed. 1987) (“ ‘If the function of arrest were merely to produce persons in court for purposes of their prosecution, then a more-probable-than-not-test would have considerable appeal. But there is also an investigative function which is served by the making of arrests.’ ” (Footnote omitted.)).’ ”

In the present case, as noted, Officer Foster had probable cause to conclude that illegal drug distribution was taking place in the automobile in which Tolbert was traveling, and therefore Officer Foster also had probable cause to believe that Tolbert had committed the crimes of possession and distribution of a controlled substance. Accordingly, Officer Foster had probable cause to arrest Tolbert, and he was permitted to perform a search incident to a lawful arrest.

At the time Officer Foster discovered the controlled substance in Tolbert’s pocket, he had not formally placed Tolbert under arrest. In Blake v. State, 772 So.2d 1200, 1207 (Ala.Crim.App.2000), this Court stated the following:

“A warrantless search preceding arrest is reasonable under the Fourth Amendment, so long as probable cause to arrest existed before the search and the arrest and search are substantially contemporaneous. Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d 683 (1980). See United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The search of Blake’s person (and the seizure of the cocaine from his pocket) was, therefore, valid as a search incident to establishment of probable cause to arrest, because the officers had probable cause to arrest Blake for possession of marijuana before he was even patted down by Officer Spears, and the arrest and search were sufficiently contemporaneous.”

Because Officer Foster had probable cause to arrest Tolbert at the time he performed the search and because he arrested Tol-bert immediately upon discovering the controlled substance, the search and seizure were valid as incident to a lawful arrest. Blake, supra. See also Rawlings 448 U.S. at 111 (“Where the formal arrest followed quickly on the heels of the challenged search of a petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.”).

Although the record appears to indicate that Officer Foster intended to perform a Terry search limited to a search of Tolbert for weapons in order to protect his and other officers’ safety, Officer Foster’s subjective intentions are irrelevant. As noted above, Officer Foster was objectively authorized to search Tolbert incident to a lawful arrest, and therefore the discovery and seizure of a controlled substance from Tolbert’s pants pocket was legally permissible. See State v. Gargus, 855 So.2d 587, 590 n. 2 (Ala.Crim.App.2003):

“Gargus argues, on the other hand, that this Court should not consider whether the search was valid as a search incident to a lawful arrest because, she says, ‘[tjhere is no testimony in the record from the arresting officer that he at any time considered this search a search incident to a lawful arrest.’ (Gargus’s appellate brief at p. 15.) However, it is well settled that ‘ “[a]s long as the police officer is doing only what is objectively authorized and legally permitted, the officer[’]s subjective intent in doing it is irrelevant.” ’ Woods v. State, 695 So.2d 636, 640 (Ala.Crim.App.1996), quoting Hutcherson v. State, 677 So.2d 1174, 1184 (Ala.Crim.App.1994), rev’d on other grounds, 677 So.2d 1205 (Ala.1996).”

Accordingly, the circuit court did not err in denying Tolbert’s motion to suppress. The judgment of the circuit court is affirmed.

AFFIRMED.

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

      . Officer Foster did not indicate whether Tol-bert responded to these questions.

      . Officer Foster testified as follows regarding his discovery of the pills:
      "Q. [PROSECUTOR:] And what happened when you patted him down? Did you discover anything?
      "[DEFENSE COUNSEL]: Objection, Your Honor. She is leading the witness.
      "THE COURT: Don’t lead. That is a pretty straightforward question. Go ahead and answer the question.
      "A. [OFFICER FOSTER:] Yes.
      "Q. [PROSECUTOR:] What?
      "A. The defendant had plastic bags in his front left pants pocket.
      "Q. Okay. And did you have any knowledge of what was in the plastic bag?
      "A. Yes’ ma’am.
      "[DEFENSE COUNSEL]: Objection, Your Honor, unless he is — I don’t think he is qualified to testify, is he, as to what was in the plastic bag, unless he is a chemist.
      "[PROSECUTOR]: If you could let me get there.
      "[DEFENSE COUNSEL]: Go ahead.
      "Q. [PROSECUTOR:] What was it that you saw in the plastic bag?
      "A. [OFFICER FOSTER:] It was a plastic bag containing a white rock-like substance and three pills.
      “Q. Okay. Did you have — do you have any idea what those pills were?
      "A. Yes, ma’am. I called Poison Control — ”
      (R. 36-38.)

      . We note that a search incident to a lawful arrest permits a broader search than a stop- and-frisk Terry search.
      "The distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons is that a search for weapons in the absence of probable cause to arrest must be limited to what is necessary to discover weapons that might be used to harm the officer or others nearby; a search incident to an arrest, on the other hand, can 'involve a relatively extensive exploration of the person.’ Mathews v. State, 534 So.2d 1129, 1131 (Ala.Crim.App.1988)”

        Vinson v. State, 843 So.2d 221, 227 (Ala.Crim.App.2000).
      " '[I]n the case of a lawful custodial arrest!,] a fuh search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a "reasonable” search under that Amendment.’ United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973).”

        Mathews v. State, 534 So.2d 1129, 1131-32 (Ala.Crim.App.1988).


author: MURDOCK, Justice.

text:
    Ex parte Richard TOLBERT. (In re Richard Tolbert v. State of Alabama).
    1110363.
    Supreme Court of Alabama.
    Nov. 16, 2012.
    James C. Mclnturff, Pell City, for petitioner.
    Luther Strange, atty. gen., and John C. Neiman, deputy atty. gen., and Jean A. Therkelsen, asst. atty. gen., for respondent.
   MURDOCK, Justice.

The petition for the writ of certiorari is quashed. See Jefferson Cnty. Comm’n v. Edwards, 32 So.3d 572, 581 (Ala.2009), and Rule 40(b), Ala. R.App. P.

Our quashing of the writ should not be construed as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. See Ex parte Kelley, 870 So.2d 711, 714 (Ala.2003), and Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT QUASHED.

MALONE, C.J., and WOODALL, STUART, BOLIN, PARKER, SHAW, MAIN, and WISE, JJ., concur.