author: MAXWELL, J.,

text:
    Jimmy HUTTO a/k/a Jimmy Allen Hutto a/k/a Jimmy A. Hutto, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00627-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.

      George T. Holmes, Benjamin Allen Sú-ber, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Jimmy Hutto walked into the Bank of Jones County, showed an employee a gun in his pocket, and demanded money. After receiving $1,040 in cash, Hutto drove away. He now appeals the resulting armed-robbery conviction and five-year prison sentence.

¶ 2. His appellate counsel submitted a “Lindsey brief’ — a brief in which counsel, after detailing the facts and procedural history, certified he had diligently scoured the record but could find no arguable issues for appeal. We too have thoroughly reviewed the record, focusing on three potential issues — (1) the initial police report that the robber had a different skin color than Hutto, (2) the warrantless “protective sweep” of Hutto’s house, in which the gun was recovered, and (3) the denial of Hut-to’s proposed insanity-defense jury instruction. Satisfied no error occurred, we affirm Hutto’s conviction and sentence.

Background

¶ 3. While Bank of Jones County employee Laura Rigdon was preparing for the end-of-day closing, a man in a navy hooded jacket and a white painter’s mask approached her desk. He demanded $20,000 and showed Rigdon a gun in his pocket. Rigdon took the man to the teller’s window. The teller removed the bills from the top rack of her drawer — $1040 in various denominations — and handed them to the masked man. The man shoved the money in his pocket and left the bank.

¶ 4. The bank immediately notified the Ellisville police about the robbery. The initial police bulletin alerted officers that a black man had robbed the bank and driven away in a blue sedan. But when officers arrived at the bank, Rigdon told the officers that she recognized the robber’s voice as Jimmy Hutto’s, one of the bank’s customers, who is white. She said she saw Hutto drive away in a blue Ford Taurus.

¶ 5. Rigdon pulled Hutto’s address off the bank’s computerized records. Officer Robert Russell headed straight to Hutto’s house and was met by Officer Wayne McLemore. Parked in the driveway was a blue Mercury Sable — the same car as the Ford Taurus, sold under the Mercury brand. Hutto was at home and told the officers he had not gone anywhere that day. But the muffler of his car was warm from being recently driven.

¶ 6. Officer Russell told Hutto that he was going to do a quick safety sweep of the house to make sure no one else was there. Inside, Officer Russell saw a Colt .45 lying in plain sight on top of Hutto’s dresser. Officer Russell unloaded the gun and placed it in his pocket. Back outside, Hutto’s neighbor, who was related to Hut-to, came over to see why the police were there. Officer Russell asked the relative to lock up Hutto’s house until the search warrant arrived. Officer McLemore took Hutto into custody and drove him to the police station. While being booked, Hutto was asked to empty his pockets. He emptied all his pockets but one. And when asked about this last pocket, he reluctantly removed $1040 in various bills, plus a few coins. Police investigator Christy Carona executed the search warrant on Hutto’s house. She found shoved in Hutto’s trash can, under a newspaper, a navy hooded jacket and a white painter’s mask.

¶ 7. Hutto was indicted for armed robbery, in violation of Mississippi Code Annotated section 97-3-79 (Rev.2006).

¶ 8. Hutto’s trial counsel requested a psychiatric evaluation. The psychologist who evaluated Hutto rejected as “exaggerated, if not fabricated” Hutto’s explanation that the interactions of the various medications he was taking caused him not to remember what happened at the bank. Hutto had no problem remembering driving to the bank or being questioned by police immediately after. In the psychologist’s opinion, not only was Hutto competent to stand trial, but also, at the time of the robbery, Hutto was mentally well and able to distinguish right from wrong.

¶ 9. Hutto’s trial counsel never notified the State or the court that Hutto would offer the defense of insanity. See URCCC 9.07 (requiring written notice if the defense of insanity is to be offered). But at trial, Hutto took the stand in his own defense. He testified about the various medications he was taking and tried to present hearsay testimony that his doctor told him that the drugs may negatively interact. Hutto testified he did not remember the day of the bank robbery. Based on his testimony, Hutto’s counsel argued Hutto was entitled to a jury instruction on insanity as a defense. The trial judge rejected the instruction because Hutto never gave notice of an insanity defense and also failed to present expert testimony that Hutto was legally insane at the time of the robbery.

¶ 10. The jury was instructed that to find Hutto guilty of armed robbery, it had to find that Hutto willfully, unlawfully, and feloniously took the personal property (money) of the Bank of Jones County from Rigdon against her will, by violence to her or by putting her in fear of immediate personal injury by exhibiting a handgun, which is a deadly weapon. The jury found Hutto guilty. Armed robbery carries a penalty of no less than three years and up to life in prison. Miss.Code Ann. § 97-3-79. The trial judge sentenced Hutto to five years in the custody of the Mississippi Department of Corrections. Hutto timely appealed.

Discussion

I. “Lindsey Brief’ Procedure

¶ 11. Hutto’s counsel has determined there are no appealable issues based on the record. The Mississippi Supreme Court has laid out a five-step procedure for this situation:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(l)-(4),(7)[.]
(2) As a part of the brief filed in compliance with Rule 28, counsel must eertify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining:
(a) the reason for the arrest and the circumstances surrounding arrest;
(b) any possible violations of the client’s right to counsel;
(c) the entire trial transcript;
(d) all rulings of the trial court;
(e) possible prosecutorial misconduct;
(f) all jury instructions;
(g) all exhibits, whether admitted into evidence or not; and
(h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant’s success on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Lindsey v. State, 939 So.2d 743, 748 (¶ 18) (Miss.2005) (footnotes and internal citations omitted).

¶ 12. Hutto’s appellate counsel filed a brief with a detailed procedural and factual history and citations to the record. And counsel certified that he reached his conclusion that there are no arguable issues on appeal after scouring the record and specifically examining relevant issues. Counsel also confirmed that he had sent a copy of the brief to Hutto and informed Hutto of his right to file a pro se brief.

¶ 13. Hutto did not file a pro se brief. And we do not find the circumstances warrant supplemental briefing on any issue. Thus, all that remains is our consideration of Hutto’s appeal on the merits.

II. Potential Issues

¶ 14. Based on an independent review of the record, we found three potential issues. Having investigated these issues further, we agree with Hutto’s counsel that there was no argument that a reversible error occurred.

A. Identiftcation of the Robber

¶ 15. Our first concern was with the fact police were initially told the suspect was black, while Hutto is white. But after reviewing all the evidence, we find the evidence supports the jury finding beyond a reasonable doubt that Hutto was the masked man who robbed the bank. Two of the Ellisville police officers admitted on cross-examination that the initial report on the police radio was that the Bank of Jones County had just been robbed by a black male. But they explained that when they arrived at the bank to interview the eye witnesses, Rigdon identified the suspect as Jimmy Hutto, a white male. Pursing this lead led to the discovery in Hutto’s trash of the navy hooded jacket and mask worn by the suspect in the security footage. It also led to the discovery of the exact amount of bills stolen in Hutto’s pocket. Further, the jury watched Hutto’s videotaped interview with the police, in which Hutto admitted he had gone to the bank that day with a gun. Thus, the jury had sufficient evidence to relieve any reasonable doubt that Hutto, based on his skin color, could not have been the bank robber.

B. Protective Sweep of Hutto’s House

¶ 16. Our second concern was that the Colt .45 pistol, introduced into evidence as the gun Hutto used to commit the armed robbery, was seized in a search of Hutto’s house conducted before the search warrant was issued. But our review of the record shows that Officer Russell’s protective sweep of Hutto’s house and seizure of the loaded gun lying in plain sight was reasonable and, thus, permissible under the Fourth Amendment. See U.S. Const, amend. IV; Miss. Const, art. 3, § 23 (protecting people’s houses and effects against “unreasonable searches and seizures”).

¶ 17. “Warrantless searches are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions.” United States v. Charles, 469 F.3d 402, 405 (5th Cir.2006) (quotations and citations omitted). One established exception permits police to “conduct a protective sweep of the area around an arrest scene[.]” Id. This protective sweep “may be no more than a cursory inspection of those spaces where a person may be found and may last no longer than is necessary to dispel the reasonable suspicion of danger nor longer than the police are justified in remaining on the premises.” Id. (quotations omitted); see also Maryland v. Buie, 494 U.S. 325, 335-36, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).

¶ 18. We find Officer Russell’s protective sweep of Hutto’s house falls within the protective-sweep exception. When Officers Russell and McLemore arrived at Hutto’s house to arrest him, Officer Russell made a cursory inspection inside to make sure no one else was in the home. He only looked in areas where a person could be hiding. And he did not stay in the house longer than necessary but instead went back outside and waited for a search warrant before a more thorough search was conducted.

¶ 19. Hutto made no objection to the admission of the pistol seized during the protective sweep, and we find no issue with the pistol’s admissibility. The pistol was in plain view. And “[i]t has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence.” Godbold v. State, 731 So.2d 1184, 1190 (¶ 24) (Miss.1999) (quoting Hams v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968)).

¶ 20. Because the pistol’s seizure did not violate Hutto’s Fourth Amendment rights, we find no error in the admission of the pistol at trial. But see Marshall v. State, 584 So.2d 437, 438 (Miss.1991) (holding that “tangible materials seized during an unlawful search” are inadmissible “fruit of the poisonous tree” (quoting Murray v. United States, 487 U.S. 533, 536, 108 S.Ct. 2529,101 L.Ed.2d 472 (1988))).

C. Refusal of Insanity-Defense Jury Instruction

¶ 21. Our final concern was with the denial of Hutto’s proposed jury instruction on the defense of insanity.

¶22. Hutto requested the jury be instructed: “If after considering all of the evidence in this case you find the State has failed to prove beyond a reasonable doubt that the defendant was sane at the time of the commission of the armed robbery, then your verdict must be not guilty by reason of insanity.” But Hutto never gave the State the required written notice that he intended to offer the defense of insanity, which would have alerted the State that it needed to prove Hutto’s legal sanity at the time of the armed robbery. See URCCC 9.07.

¶ 23. Further, “[a] trial court may withhold an insanity instruction ‘if it concludes that the relationship between a defendant’s mental illness history and his criminal conduct has not been explained or examined in any meaningful way.’ ” Hearn v. State, 3 So.3d 722, 739 (¶51) (Miss.2008) (quoting United States v. Eff, 524 F.3d 712, 717 (5th Cir.2008)). In Hearn, the defendant actually gave pretrial notice of an insanity defense but did not pursue insanity as a defense at trial. Id. at (¶ 50). The Mississippi Supreme Court held the trial court properly denied the proposed insanity-defense instruction “because the evidence was insufficient to create a reasonable doubt of sanity.” Id. at (¶ 51). Here, Hutto not only failed to give notice of an insanity defense, but he also failed to present evidence to create a reasonable doubt of his sanity. Like the defendant in Hearn, Hutto did not pursue an insanity defense at trial and called no expert to testify that at the time of the robbery Hutto was incapable of distinguishing right from wrong. See Hogan v. State, 89 So.3d 36, 39 (¶ 10) (Miss.Ct.App.2011) (“To determine insanity, Mississippi follows the M’Naghten Rule, which essentially asks whether the defendant was unable to distinguish right from wrong at the time of the act.” (citations omitted)). During his own testimony, Hutto merely insisted he could not remember the day of the robbery. As in Hearn, we find the trial court properly refused Hutto’s insanity-defense instruction.

¶ 24. We affirm.

¶ 25. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P JJ., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR.

      . See Lindsey v. State, 939 So.2d 743, 748 (¶ 18) (Miss.2005).

      . Hutto has different counsel on appeal than at trial. Under Mississippi Rule of Appellate Procedure 22(b), any issue that "may be raised in post-conviction proceedings"' — such as trial counsel’s effectiveness — must be raised on direct appeal when (1) the defendant has different counsel on appeal and (2) the issue is "based on facts fully apparent from the record.” We simply note that there are no post-conviction-relief issues that are fully apparent from the trial record that were waived by not being raised in appellate counsel’s brief.

      . Officers Russell and McLemore had probable cause to make a warrantless arrest of Hutto, based on Rigdon’s identification of Hutto as the robber and the fact Hutto's car— which showed signs of being recently driven-matched the description of the getaway car. See Craig v. State, 739 So.2d 410, 412 (¶ 4) (Miss.Ct.App.1999) ("In order to make a felony arrest without a warrant, the officer must have probable cause to believe that (1) a felony has been committed and (2) the suspect to be arrested committed the felony."); see also Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) ("Probable cause exists where the facts and circumstances within ... the arresting officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." (quotations omitted)).


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Natasha WEATHERSBY, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2012-CC-00387-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.
    Natasha Weathersby, appellant, pro se.
    Albert B. White, Madison, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In May 2011, Natasha Weathersby was terminated from her employment as a teacher’s assistant with Friends of Children of Mississippi (FCM) due to insubordination. Weathersby was given multiple opportunities to comply with certain requisite job duties but continuously failed to perform the tasks. She has never denied her failure to complete these duties. After her termination, she filed for unemployment benefits. However, she was deemed disqualified from receiving the benefits due to her misconduct. Weathersby appealed the denial to an administrative law judge (ALJ) with the Mississippi Department of Employment Security (MDES) in June 2011. The ALJ affirmed the denial of benefits. She then appealed the ALJ’s decision to the MDES Board of Review (the Board). The Board affirmed the ALJ’s judgment. Finally, Weathersby appealed the Board’s decision to the Hinds County Circuit Court. After a transfer of venue was granted, the Jefferson Davis County Circuit Court reviewed the appeal and affirmed the Board’s decision. Finding no error, we affirm the circuit court’s judgment.

STATEMENT OF FACTS

¶2. In October 2008, Weathersby was hired by FCM as a teacher’s assistant at a preschool facility. Part of her job duties included, among other tasks, conducting visits to her students’ homes twice a year, meeting with her students’ parents, and completing student progress reports. After Weathersby failed to perform these duties, her manager, Ann Hopkins, instructed Weathersby that continued failure to complete these tasks would result in suspension and possible termination.

¶ 3. Hopkins met with Weathersby on several occasions regarding her misconduct. Hopkins also explained to Weath-ersby that, according to federal guidelines, FCM could lose necessary federal grant money if the bi-annual meetings with students’ parents were not completed. Nonetheless, Weathersby never performed the required tasks. In her brief on appeal, Weathersby only specifically addressed her failure to make home visits and merely stated that she was not comfortable executing the visits. She claimed her failure to perform the duties in question was due to poor relationships with the other FCM staff members. However, after FCM conducted a full investigation into the matter, no correlative evidence was found linking Weathersby’s relationships with the other FCM staff members and her refusal to complete the required tasks.

¶4. As such, in May 2011, Weathersby was terminated due to insubordination for failing to perform required job responsibilities after repeated instructions to do so. She has never denied that she failed to execute the requisite tasks. Rather, Weathersby asserts in her appeal that she was discriminated against when coworkers allegedly treated her poorly in the following ways: starting rumors that prevented her from obtaining a loan from a local credit union; hiding her classroom papers; locking her out of her classroom; and placing her personal telephone number into a telemarketer call system. She asserts this misconduct from her coworkers constitutes a valid basis for the reversal of the denial of unemployment benefits.

DISCUSSION

¶ 5. We are granted limited review of decisions ruled upon by the Board and a circuit court. Mississippi Code Annotated section 71-5-581 (Rev.2011) provides: “[T]he findings of the [Bjoard ... as to the facts, if supported by substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” Likewise, the Mississippi Supreme Court has stated that “[i]f substantial evidence supports the Board’s fact finding and the relevant law was properly applied to the facts, the appellate court must affirm.” Barnett v. Miss. Emp’t Sec. Comm’n, 583 So.2d 193, 195 (Miss.1991) (citation omitted).

¶ 6. The record substantiates the claim that Weathersby failed to complete in-home visits, parent-teacher meetings, and student progress reports. Weathersby does not deny that she did not perform these job duties, and neither Weathersby nor the record provides any legitimate explanation as to why she failed to perform the duties. Accordingly, we may only consider whether the law substantiates the denial of unemployment benefits to Weath-ersby.

¶ 7. The supreme court has stated the following with regard to disqualification for unemployment benefits:

[Disqualification for unemployment benefits results from misconduct, which is conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from [its] employees.

Miss. Emp’t Sec. Comm’n v. Martin, 568 So.2d 725, 727 (Miss.1990). Here, Weath-ersby repeatedly failed to complete tasks vital to FCM’s federal funding and necessary to properly run the preschool. As such, FCM had a right to expect that such duties would be completed by Weathersby. Thus, Weathersby’s inaction unquestionably constitutes misconduct under the law. Her assertions on appeal regarding her coworkers’ alleged improper behavior have no bearing on her failure to perform her job duties. Moreover, Weathersby does not deny that she did not complete the required tasks despite repeated instructions and conversations regarding the consequences to Weathersby and FCM if she failed to do so. Accordingly, Weathersby’s claims lack merit, and we affirm the judgment of the circuit court.

¶ 8. THE JUDGMENT OF THE JEFFERSON DAVIS COUNTY CIRCUIT COURT IS AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.


text:
    Moses McLAURIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00557-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.

      Moses McLaurin, appellant, pro se.
    Office of the Attorney General by Stephanie B. Wood, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2009, Moses McLaurin pleaded guilty in the Scott County Circuit Court to possession of more than two grams but less than ten grams of cocaine. He was sentenced as a subsequent drug offender to ten years in the custody of the Mississippi Department of Corrections (MDOC). In 2012, McLaurin filed a motion for post-conviction relief (PCR) alleging he was improperly denied parole eligibility. The motion was denied. He now appeals asserting his criminal record improperly reflects that he was convicted as a subsequent drug offender and that even if he had been convicted as a subsequent drug offender, the circuit court abused its discretion in doing so. Having raised these issues for the first time on appeal, McLau-rin is procedurally barred from proceeding with this action. Therefore, we affirm the circuit court’s judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In 2008, McLaurin was indicted in Scott County, Mississippi, as a subsequent drug offender and as a habitual offender, for possession of more than two grams but less than ten grams of cocaine. McLaurin had received two convictions of controlled-substance violations in 2006. In July 2009, he pleaded guilty in the circuit court to the instant offense as a subsequent drug offender. In his plea agreement, he acknowledged he had been convicted of “a controlled substance felony.” While the subsequent-drug-offender status remained a part of the indictment, the State agreed to remove the habitual-offender status from the indictment as part of the plea agreement. Accordingly, the circuit court convicted McLaurin as a subsequent drug offender and sentenced him to ten years in the custody of the MDOC.

¶ 3. In February 2012, McLaurin filed a PCR motion claiming he was improperly denied parole eligibility on the false basis that he was serving an enhanced sentence. The circuit court summarily denied the motion in March 2012. McLaurin now appeals claiming he was not sentenced as a subsequent drug offender and that even if he was, the circuit court did so without authority of law.

DISCUSSION

¶ 4. We review a circuit court’s denial of a PCR motion under a clearly-erroneous standard of review. Holloway v. State, 31 So.3d 656, 657 (¶ 5) (Miss.Ct. App.2010) (citation omitted). However, an issue is procedurally barred if not first raised in a PCR motion before a trial court. Bell v. State, 2 So.3d 747, 750 (¶ 12) (Miss.Ct.App.2009) (citation omitted).

¶ 5. Here, McLaurin claims that he was not technically charged as a subsequent drug offender and that even if he had been charged as such, he was charged improperly. Nonetheless, these assertions were not raised in his PCR motion before the circuit court. His PCR motion instead contained allegations that he was unduly denied parole eligibility due to a misreading of his sentence as being an enhanced sentence, therefore barring parole eligibility-

¶ 6. Parole eligibility notwithstanding, McLaurin’s issues on appeal were never raised in his PCR motion. His assertions that he was not charged as a subsequent drug offender, or charged improperly as such, are absent from his PCR motion. But even assuming for the sake of argument that the claims were raised in his PCR motion and properly presented to the circuit court, they are without merit.

¶ 7. At the beginning of McLaurin’s plea hearing, his defense counsel was asked to recite the crime to which McLau-rin was pleading guilty. Defense counsel stated: “Your Honor, he’s entering a plea to possession of more than two but less than ten grams of crack cocaine as a subsequent offender, but not as a habitual criminal.” McLaurin was later asked by the circuit court during the plea hearing if he had heard and agreed with his defense counsel’s plea on his behalf. He responded, ‘Tes, sir.” When asked how many times he had been convicted as a felon, McLaurin responded, “Twice, sir.” Likewise, in McLaurin’s plea colloquy, he noted that he had “been previously convicted of a controlled substance felony.”

¶ 8. After announcing McLaurin’s sentence as ten years in the custody of the MDOC, the State specifically asked, ‘Tour Honor, would that be as a second offender?” To which the circuit court stated, “And you are sentenced as a second offender.” Defense counsel immediately questioned the circuit court, “But not as a habitual offender?” The circuit court responded, “Correct.”

¶ 9. Hence, while McLaurin’s claims on appeal were not properly brought before this Court, they are, nonetheless, without merit. We affirm the circuit court’s judgment.

¶10. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.


text:
    Anthony CARPENTER and Saskia Carpenter, Wife, Appellants v. E. L. SPARKMAN, Superintendent and Pamela Lee, Deputy Warden, Appellees.
    No. 2012-CP-00551-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.
    Saskia Carpenter, appellant, pro se.
    Anthony Carpenter, appellant, pro se.
    Office of the Attorney General by R. Stewart Smith Jr., James M. Norris, attorneys for appellees.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2011, Saskia Carpenter was permanently suspended from visiting her husband, Anthony Carpenter, who is incarcerated at the Mississippi State Penitentiary (MSP) in Parchman, Mississippi, in the custody of the Mississippi Department of Corrections (MDOC). E.L. Sparkman, MDOC Deputy Commissioner and Superintendent of the MSP, advised Saskia of the visitation ban as a result of her alleged attempt to introduce contraband in the form of a wedding band that was found in her right front pants pocket while visiting Anthony at the MSP. Anthony appeals Sparkman’s decision, which the circuit court affirmed, essentially alleging Spark-man abused his discretion in permanently banning Saskia from visiting Anthony during his incarceration. We reverse and render the circuit court’s decision.

STATEMENT OF FACTS

¶ 2. Anthony has been incarcerated in the custody of the MDOC for several years. In 2010, approximately a year before he was transferred from a correctional facility in Marshall County, Mississippi, to MSP, Saskia bought Anthony a wedding band in anticipation of their nuptials. Several months before his transfer, Anthony married Saskia, who is the mother of his now ten-year-old daughter, at the correctional facility in Marshall County. According to Anthony and Saskia, Saskia would periodically leave with Anthony’s wedding band after their visits, have it cleaned, and return it to Anthony at the following visit. During her visits, Saskia would bring their daughter to visit Anthony, as well as Anthony’s ailing mother. Saskia states in an affidavit that she has always been the only resource for their daughter and Anthony’s mother to visit Anthony since she is the only one legally able to drive.

¶ 3. In 2011, Anthony was transferred to the MSP. On her first visit to see Anthony, Saskia was stopped by MSP officials and was discovered to have Anthony’s wedding band in her front right pants pocket. The ring was deemed to be contraband by MDOC officials, and Saskia was asked to immediately vacate MSP property. She was also advised that her actions in attempting to provide contraband to a prisoner would likely result in her permanent suspension from visitation privileges. Approximately a month after the incident, Saskia received a letter from Sparkman advising her that she was permanently suspended from visiting Anthony in any MDOC facility.

¶ 4. Anthony and Saskia both contacted MDOC officials by phone, written letter, and affidavit, requesting reconsideration of the decision. After their requests were denied, Anthony appealed the decision to the Sunflower County Circuit Court. Specifically, Anthony asserted that the wedding band is not contraband and that Sparkman’s decision was an abuse of discretion. The circuit court denied Anthony’s appeal, and he and his wife now appeal the circuit court’s judgment.

DISCUSSION

¶ 5. We have held that while “visitation privileges are a matter subject to the discretion of prison officials, ... limitations must meet legitimate penological objectives such as rehabilitation and the maintenance of security and order.” McFadden v. State, 580 So.2d 1210, 1216 (Miss.1991) (internal quotations omitted). Furthermore, “restrictions on an inmate’s visitation privileges should not be imposed arbitrarily or discriminatorily.” Hentz v. Miss. Dep’t of Corr., 766 So.2d 1, 2 (¶ 9) (Miss.Ct.App.2009) (citation omitted).

¶ 6. Here, Sparkman’s letter stated the following:

Dear Ms. Carpenter:
Effective [August 28, 2011,] you are permanently suspended from visiting Offender Anthony Carpenter.... This suspension of visiting privileges is a result of you attempting to introduce contraband, by the specific act of attempting to bring in a wedding band in your right front pants pocket. You are permanently suspended from visiting any correctional facilities that house[ ] Mississippi Department of Corrections offenders.

¶ 7. While the Carpenters admit they reviewed the applicable rules of visitation that dictate visitors are “prohibited from giving, trading, selling[,] or receiving anything to and from each other, other offenders[,] or visitors,” the record is silent on of whether Saskia actually transferred or intended to transfer the wedding band to Anthony. Both of their affidavits show that while Anthony had apparently been allowed to wear his band in the Marshall County prison, he had given the band to his wife prior to his transfer. Neither Anthony nor Saskia specifically state in their petitions that Saskia was going to transfer the band to Anthony.

¶ 8. Likewise, the visitation rules state that the attire for females includes “[n]o jewelry except a wedding ring, religious medallion[,] or a medical alert bracelet^]” (Emphasis added). Furthermore, the visitation rules list the following items as the exclusive items constituting contraband:

1. Alcoholic beverages
2. Controlled substances
3. Cameras
4. Tape recorders
5. Civilian clothing
6. Tools
7. Weapons
8. Ammunition
9. Explosives
10. Hacksaw blades

¶ 9. As such, Sparkman’s decision to ban Saskia on the basis of the introduction of contraband is unfounded. A wedding band does not fall within the category of any listed contraband group. Accordingly, it would appear that a wedding band was permissible as visitor attire and, likewise, was not listed as an excluded contraband item.

¶ 10. Moreover, Sparkman’s permanent ban of Saskia also permanently bans the Carpenters’ minor child from visiting her father. Both affidavits in the record from Saskia and Anthony list Saskia as providing the family’s only method of transportation to and from the MSP. We ñnd Sas-kia’s permanent ban of visitation rights extreme given the facts before us. Sas-kia’s behavior was not explicitly prohibited under MSP visitation rules, and her suspension prohibits the couple’s minor child from visiting her father. Accordingly, we find Sparkman’s decision to be an abuse of discretion. We deem that Saskia’s suspension from 2011 until the present to be adequate punishment for her alleged violation, and we reinstate her visitation privileges. The circuit court’s judgment is reversed and rendered.

¶11. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MAXWELL, FAIR AND JAMES, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. ROBERTS, J„ CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J„ DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: WOODALL, Justice.

text:
    The BOYS & GIRLS CLUBS OF SOUTH ALABAMA, INC. v. FAIRHOPE-POINT CLEAR ROTARY YOUTH PROGRAMS, INC., and Ruff Wilson Youth Organization, Inc.
    1110843.
    Supreme Court of Alabama.
    Oct. 19, 2012.
    Rehearing Denied Dec. 7, 2012.

      Wade B. Perry, Jr., and R. Gregory Watts of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for appellant.
    Allan R. Chason of Chason & Chason, P.C., Bay Minette, for appellees.
   WOODALL, Justice.

The Boys & Girls Clubs of South Alabama, Inc. (“the Club”), a nonprofit corporation, appeals from a judgment in favor of the Fairhope-Point Clear Rotary Youth Programs, Inc. (“Rotary Inc.”), and the Ruff Wilson Youth Organization, Inc. (“Wilson Inc.”), in their action against the Club seeking declaratory and injunctive relief. We vacate the judgment and dismiss the case and the appeal.

I. Factual and Procedural Background

The dispositive facts are undisputed. The Club, which was incorporated in 1958, has its headquarters in Mobile. It currently operates several facilities in Mobile County to promote, as stated in its certificate of incorporation, “the health, social, educational, vocational, and character development” of youth in Baldwin and Mobile Counties. In 1996, it was also operating facilities in Baldwin County. In particular, it operated a facility in Fairhope sometimes referred to as the “Fairhope Boys and Girls Club” (“the Fairhope Club”). It operated another such facility in Daphne sometimes referred to as the “Daphne Boys and Girls Club” (“the Daphne Club”). The Fairhope Club and the Daphne Club had no legal existence apart from their affiliation with the Club.

On November 13, 1996, B.R. Wilson, Jr., one of the incorporators of the Club and a principal benefactor, executed a “gift deed,” transferring to the Club approximately 17 acres of real estate (“the property”). Contemporaneously with the execution of the deed, Wilson gave a letter to the Club (“the letter”); that letter stated: “Gentlemen:

“I am giving to you the property, located in Point Clear, known as my ‘Stables.’ This gift is totally unrestricted. The property is presently occupied by Bill Adams, who is operating the stables, mostly for use by Grand Hotel guests and other ‘paying customers.’ I believe that he is technically ‘holding over on a month to month basis’ since his written leases expired some time ago. He has been working with the [Club] in the past and wants to work with you in the future, not only as a tenant, but also to allow your members to use the facilities on some mutually agreeable basis. I understand that you intend to attempt to work out a mutually satisfactory arrangement with Bill Adams. I appreciate that; but it is not a condition of this gift.
“I understand that you hope to continue the use of my son’s name in connection with these facilities, or some other facility in the Fairhope-Point Clear area. I also appreciate that; but it is not a condition of this gift. I will also again confirm to you that you are free to ultimately dispose of this property if, in your judgment, it is in the best interest of the [C]lub to do so. It is my desire and understanding that you will use the proceeds from any such disposition for the [C]lub’s facilities and/or activities in the Fairhope-Point Clear area.”

Wilson died in 1997.

In March 2000, the Club sold the property and deposited the proceeds into three separate accounts, two of which were separately earmarked for the Daphne Club and for the Fairhope Club. However, on May 31, 2009, the Club discontinued its operations in Daphne and Fairhope, citing “operating deficits” as a contributing factor. It transferred the remainder of the proceeds from the sale of the property to an account in the Community Foundation of South Alabama (“the bank”).

On June 1, 2009, the facilities in Daphne and Fairhope were reopened by volunteers and former Club personnel, who began operating the youth centers under their own independent management structures. Subsequently, some of these individuals incorporated Rotary Inc. and Wilson Inc., under which they continued to operate the facilities in Fairhope and Daphne, respectively.

Rotary Inc. and Wilson Inc. sued the Club, seeking declaratory and injunctive relief. They alleged that the Club “ha[d] used,” or, perhaps, was “anticipating] using,” the proceeds for its own operations, rather than for the use of the facilities then being operated by Rotary Inc. and Wilson Inc. They sought a judgment (1) declaring that the “desire and understanding” of B.R. Wilson expressed in the letter controlled the disposition of the funds, and (2) enjoining the use of the proceeds for anything but the benefit of the youth facilities as operated by Rotary Inc. in Fair-hope and by Wilson Inc. in Daphne.

After a bench trial, the trial court entered a judgment setting forth its findings of fact and conclusions of law. More specifically, it considered the letter and testimony of witnesses regarding B.R. Wilson’s intent and found that it was his intent that the property or proceeds from the sale of the property would “be held in trust for the operation of the Baldwin County facilities” and that the bank was holding the funds in trust as trustee for the “exclusive benefit of the [youth facilities in Fairhope and Daphne].” (Emphasis added.) It concluded that “because entities [ (Rotary Inc. and Wilson Inc.) ] now exist which are capable of receiving and administering the sales proceeds for the benefit of the Fair-hope and Daphne clubs, there is no further purpose for the continued existence of the trust.” (Emphasis added.) The court ordered the termination of the “trust” and the disbursal of the remainder of the proceeds, namely, $893,377.02 and $210,704.76, to Rotary Inc. and Wilson Inc., respectively-

The Club appealed, challenging, among other things, the standing of Rotary Inc. and Wilson Inc. to sue over distribution of the proceeds of the sale of the property. In particular, the Club contends that the entities that may sue a nonprofit corporation are defined by the Alabama Nonprofit Corporation Act, Ala.Code 1975, §§ 10A-3-1.01 through 10A-3-8.02 (“the Act”), and that Rotary Inc. and Wilson Inc. are not included in that roster of entities. According to Rotary Inc. and Wilson Inc., there is a “special standing rule [that] applies to challenges to the administration of a public charitable trust as is at issue here.” Rotary Inc. and Wilson Inc.’s brief, at 36. Because standing is the dispositive and threshold issue and because the facts pertinent to that issue are undisputed, our standard of review is de novo.

II. Discussion

“ ‘Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation.’ Ex parte Fort James Operating Co., 871 So.2d 51, 54 (Ala.2003) (quoting National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994)(emphasis added)). “Like any other fact essential to recovery, the plaintiff has the burden of proving standing.” Byrd v. MorEquity, Inc., 94 So.3d 378, 379 (Ala.Civ.App.2012) (plurality opinion). “ “When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.’ ” Riley v. Pate, 3 So.3d 835, 838 (Ala.2008) (quoting State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999)).

“ ‘Standing is “ ‘ “[t]he requisite personal interest that must exist at the commencement of the litigation.” ’ ” ’ Cadle Co. v. Shabani, 4 So.3d 460, 462-63 (Ala.2008) (emphasis added) (quoting Pharmacia Corp. v. Suggs, 932 So.2d 95, 98 (Ala.2005), quoting in turn In re Allison G., 276 Conn. 146, 156, 883 A.2d 1226, 1231 (2005))....
“This Court has often said that it is 1 “ ‘duty bound to notice ex mero motu the absence of subject-matter jurisdiction.’ ” ’ Riley v. Hughes, 17 So.3d 643, 648 (Ala.2009) (emphasis added) (quoting Baldwin County v. Bay Minette, 854 So.2d 42, 45 (Ala.2003), quoting in turn Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 945 n. 2 (Ala.1994)). However, just because the Court is duty bound to notice the absence of subject-matter jurisdiction, it does not follow that it is so bound to construct theories and search the record for facts to support the existence of jurisdiction for plaintiffs ... [whether they are appellants or appellees]. On the contrary,
“ ‘when the parties have not provided sufficient legal or factual justification for this Court’s jurisdiction, this Court is not obligated to embark on its own expedition beyond the parties’ arguments in pursuit of a reason to exercise jurisdiction. The burden of establishing the existence of subject-matter jurisdiction falls on the party invoking that jurisdiction. See, e.g., Ex parte HealthSouth Corp., 974 So.2d 288 (Ala.2007) (setting forth the plaintiffs burden of demonstrating standing to bring an action, an issue of subject-matter jurisdiction); ... Ex parte Ray-El, 911 So.2d 1100, 1104 (Ala.Crim.App.2004) (placing the burden to “ ‘justify the jurisdiction of this court’ ” on the person bringing a habeas petition as a “next friend” (quoting Whitmore v. Arkansas, 495 U.S. 149, 164, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990))); cf. Bush v. Laggo Props., L.L.C., 784 So.2d 1063, 1065 (Ala.Civ.App.2000) (“Once a party challenges the trial court’s jurisdiction, pursuant to Rule 12(b)(1), [Ala. R. Civ. P.,] the burden of establishing jurisdiction is on the plaintiff.” (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507 (5th Cir.1980))).’
“Crutcher v. Williams, 12 So.3d 631, 635-36 (Ala.2008)(some emphasis added).”

Blevins v. Hillwood Office Ctr. Owners’ Ass’n, 51 So.3d 317, 321-22 (Ala.2010) (first emphasis added).

For the special standing rule advanced by Rotary Inc. and Wilson Inc., they cite only Jones v. Grant, 344 So.2d 1210 (Ala.1977). Jones “adopt[ed] the rule that beneficiaries with a sufficient special interest in the enforcement of a charitable trust can institute a suit as to that trust.” 344 So.2d at 1212 (emphasis added). The special-interest rule adopted in Jones is an exception to the general rule that “mere potential beneficiaries, whose interest is no greater than the interest of all the other members of a large class of potential beneficiaries of a charitable trust, have no standing to maintain an action for the enforcement of the trust.” Rhone v. Adams, 986 So.2d 374, 377 (Ala.2007).

However, the holding in Jones has been superseded by the Act, as recognized in Cook v. Lloyd Noland Foundation, Inc., 825 So.2d 83, 86-87 (Ala.2001) (noting that “for trusts incorporated as nonprofit corporations [the Act] superseded that right as recognized by Jones ”), and in Rhone, 986 So.2d at 377 n. 1. On the basis of the predecessor of the Act, the Court in Cook affirmed the trial court’s dismissal of an action by purported beneficiaries of a charitable trust incorporated under the Act, which action sought, among other things, to enjoin a sale contemplated by the corporation. Cook, 825 So.2d at 84.

The Act provides, in pertinent part:

“No act of a nonprofit corporation and no conveyance or transfer of real or personal property to or by a nonprofit corporation shall be invalid by reason of the fact that the corporation was without capacity or power to do an act or to make or receive a conveyance or transfer, but lack of capacity or power may be asserted:
“(1) In a proceeding by a member or a director against the nonprofit corporation to enjoin the doing or continuation of unauthorized acts, or the transfer of real or personal property by or to the nonprofit corporation. ...
“(2) In a proceeding by the nonprofit corporation, whether acting directly or through a receiver, trustee, or other legal representative, or through members in a representative suit, against the officers or directors of the nonprofit corporation for exceeding their authority.
“(3) In a proceeding by the Attorney General, as provided in this chapter, to dissolve the nonprofit corporation, or in a proceeding by the Attorney General to enjoin the nonprofit corporation from performing unauthorized acts, or in any other proceeding by the Attorney General.”

§ 10A-3-2.44, Ala.Code 1975 (emphasis added).

It is undisputed that the Club is a nonprofit corporation within the purview of the Act, and Rotary Inc. and Wilson Inc. do not claim, or purport, to be members or directors of the Club. Thus, it is clear that Rotary Inc. and Wilson Inc. are not such persons as are authorized by § 10A-3-2.44 to commence an action against the Club relating to the transactions challenged in this case. In short, having relied for standing solely on Jones, which is inap-posite, Rotary Inc. and Wilson Inc. have failed to demonstrate that they are proper parties to sue the Club over the disposition of the proceeds from the sale of the property. Consequently, the complaint filed by Rotary Inc. and Wilson Inc. failed to invoke the subject-matter jurisdiction of the trial court.

III. Conclusion

In summary, Rotary Inc. and Wilson Inc. have failed to show that they have standing to challenge the Club’s disposition of the proceeds of the sale of the property donated to the Club by B.R. Wilson, Jr. Therefore, the trial court’s judgment was void for lack of subject-matter jurisdiction. “ ‘A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment.’ Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008).” MPQ, Inc. v. Birmingham Realty Co., 78 So.3d 391, 394 (Ala.2011). Accordingly, we vacate the judgment and dismiss the case and the appeal.

JUDGMENT VACATED; CASE DISMISSED; AND APPEAL DISMISSED.

MALONE, C.J., and BOLIN and MAIN, JJ., concur.

MURDOCK, J., concurs in the result.

      . Throughout its history, the Club has undergone a series of name changes, which are not here pertinent.

      . The provisions of the Act apply to "[a]ll nonprofit corporations organized hereunder” and to ”[a]ll nonprofit corporations heretofore organized under any act ... heretofore repealed, for a purpose ... for which a nonprofit corporation might be organized under this chapter.” § 10A-3-1.03.

      . Section 10A-3-1.02(5) defines a ''member” as "[o]ne having membership rights in a corporation in accordance with the provisions of its governing documents. A member may be a natural person, a partnership, a professional association or professional corporation, a corporation for profit or a nonprofit corporation.”


author: BRYAN, Judge.

text:
    Joseph P. LaROSE III and Ann LaRose v. Royce LaROSE.
    2110655.
    Court of Civil Appeals of Alabama.
    Dec. 7, 2012.
    Lana K. Hawkins of The Hawkins Law Firm, Arab, for appellants.
    Michael F. Robertson, Hunstville, for appellee.
   BRYAN, Judge.

This is the second time these parties have appeared before this court related to protection-from-abuse proceedings in the Cullman Circuit Court. We set forth the pertinent procedural history in LaRose v. LaRose, 71 So.3d 651 (Ala.Civ.App.2011), as follows:

“On April 18, 2010, Ann LaRose (‘the paternal grandmother’) and Kelly Hill (‘the paternal aunt’) came to Alabama to exercise visitation with Vanessa LaRose (‘the child’) pursuant to a South Carolina consent judgment awarding the paternal grandmother and Joseph P. LaRose III (‘the paternal grandfather’) unsupervised visitation with the child every third weekend and for two nonconsecutive two-week periods each summer. Royce LaRose (‘the mother’) refused to permit the paternal grandmother and the paternal aunt to visit with the child. In fact, the following day, on April 19, 2010, the mother filed a petition in the Cullman Circuit Court seeking a protection-from-abuse (‘PFA’) order pursuant to Ala. Code 1975, § 30-5-1 et seq., against both the paternal grandmother and the paternal aunt. The mother’s petition was assigned case number DR-10-243. The court entered two ex parte PFA orders restraining both the paternal grandmother and the paternal aunt from contact with the mother, as permitted by Ala.Code 1975, § 30-5-7(a)(l) and (b)(1) — (3).
“On May 25, 2010, the paternal grandmother and the paternal grandfather (referred to collectively at times as ‘the paternal grandparents’) filed a ‘Notice of Registration of Child Custody Determination’ pursuant to Ala.Code 1975, § 30-3B-305, a portion of the Uniform Child Custody Jurisdiction and Enforcement Act (‘UCCJEA’), codified at Ala.Code 1975, § 30-3B-101 et seq. That action was assigned case number DR-10-243.01 ....
“On or about July 16, 2010, the paternal grandfather, who was not the subject of the ex parte PFA orders in existence at the time, attempted to exercise visitation with the child. The mother refused to allow the paternal grandfather to exercise his visitation. On July 21, 2010, the mother filed a petition seeking a PFA order against the paternal grandfather; that action was assigned case number DR-10-481. The trial court set a hearing on the mother’s PFA petition on August 4, 2010, and consolidated case number DR-10-481 with case numbers DR-10-243 and DR-10-243.01. We note that, despite the consolidation of the actions, ‘the actions retain[ed] their separate identity and the parties and pleadings in one action d[id] not automatically become parties and pleadings in the other action[s].’ Rule 42, Committee Comments on 1973 Adoption; see also Ex parte Flexible Prods. Co., 915 So.2d 34, 50 (Ala.2005); and H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276, 1278 (Ala.Civ.App.2009).
“After the trial on the consolidated actions, the trial court entered a judgment in each action on August 10, 2010. In those judgments, the trial court found that the paternal grandparents and the paternal aunt had ‘engaged in a pattern of abusive conduct designed to harass, intimidate and threaten the [mother] and that she is fearful for her life and that of her child.’ As a result, the trial court prohibited the paternal grandparents and the paternal aunt
“‘from contacting the [mother], her children, husband or anyone in their extended families, in any manner whatsoever, in person, through a third (3rd) party, directly or indirectly, by mail, phone, or any other electronic means and shall maintain a distance away from the aforementioned persons of at least two thousand (2,000) feet at all times.’
“In addition, the trial court specifically addressed the paternal grandparents’ request for enforcement of the visitation rights awarded in the South Carolina judgment, stating:
“ ‘Further, the [paternal grandparents’] rights of visitation with the [mother’s] minor daughter are hereby suspended in the State of Alabama until the same can be reviewed by the South Carolina court, with a view toward modification thereof allowing for strict supervision of same for the safety and safe return of the child to her mother.’ ”

Id. at 653-54.

The paternal aunt and the paternal grandparents appealed the trial court’s August 10, 2010, judgments. This court dismissed the appeal taken by the paternal grandmother and the paternal aunt in case no. DR-10-243 and the appeal taken by the paternal grandfather in case no. DR-10^481 because the appeal “was filed more than 42 days after the entry of the August 10, 2010, judgment in each of those two actions and was therefore not timely filed.” Id. at 655 (citing Rule 4(a)(1), Ala. R.App. P.). However, because the paternal grandparents’ appeal in case no. DR-10-243.01 was timely, we considered the “arguments on appeal relating to the trial court’s judgment insofar as it addresse[d] the registration and enforcement of the South Carolina visitation judgment pursuant to Ala.Code 1975, § 30-3B-305, -308, and -310.” Id. at 656. In regard to the appeal from case no. DR-10-243.01, we held that,

“[b]ecause the mother did not present or establish any defense to the enforcement of the South Carolina judgment under § 30-3B-308(d), the only possible basis for the trial court’s failure to enforce that judgment would have had to have arisen from its assumption of temporary emergency jurisdiction under § 30-3B-204[,' Ala.Code 1975]. As explained in the comment to § 30-3B-310:
“ ‘There are no ... defenses [other than those enumerated in § 30-3B-308(d) ] to an enforcement action. If the child would be endangered by the enforcement of a custody or visitation order, there may be a basis for the assumption of emergency jurisdiction under Section 204 of this Act. Upon the finding of an emergency, the court issues a temporary order and directs the parties to proceed either in the court that is exercising continuing jurisdiction over the custody proceeding under Section 202, or the court that would have jurisdiction to modify the •custody determination under Section 203.’
“§ 30-3B-310, Official Comment. Thus, although the mother did not present any defenses to the enforcement of the South Carolina judgment, we agree with the mother that the trial court’s determination that PFA orders protecting the mother and the child were warranted served as a basis for the trial court’s exercise of temporary emergency jurisdiction pursuant to § 30-3B-204(a) and therefore as a basis for its decision to decline enforcement of the South Carolina judgment.
“We conclude that, although the trial court did have temporary emergency jurisdiction pursuant to § 30-3B-204(a), the trial court’s judgment fails to comply with the requirements of § 30-3B-204(c) because it contains no time limit within which the mother must obtain an order modifying the South Carolina judgment from the South Carolina court. Without such a limitation, the trial court’s judgment ‘suspending’ visitation is potentially a permanent judgment terminating visitation, which would effect a modification of the South Carolina judgment despite the fact that the trial court would have lacked jurisdiction under the UC-CJEA to do so at the time of the August 10, 2010, judgment. Further, the record is devoid of any indication that the trial court followed the requirements of § 30-3B-204(d), which mandated that the trial court communicate with the South Carolina court as part of the trial court’s exercise of temporary emergency jurisdiction.”

Id. at 657-58.

Based on the above analysis, we reversed the August 10, 2010, judgment in case no. DR-10-243.01

“insofar as it ‘suspended’ the paternal grandparents’ visitation with the child, and we remand[ed] the cause for the trial court to communicate with the South Carolina court as required by § 30-3B-204(d) and to correct the wording of the provision effecting the ‘suspension’ of the paternal grandparents’ visitation rights to comply with the limitations required by § 30-3B-204([c])[].”

Id. at 658. As noted earlier, the appeals taken from case nos. DR-10-243 and DR-10-481 were dismissed. Id.

On June 1, 2011, after a certificate of judgment had been issued by this court, the trial court entered an order on remand amending the August 10, 2010, judgments in case nos. DR-10-243, DR-10-243.01, and DR-10-481 to include the following language:

“Upon remand, this [cjourt finds that this [cjourt obtained temporary emergency jurisdiction pursuant to Alabama Code Section, 30-3B-204(a). Prior to the issuance of the original [ojrder, the [cjourt communicated with the South Carolina [cjourts regarding the jurisdictional issues between the Alabama and South Carolina [cjourt. The mother shall contact the South Carolina [cjourt by August 10, 2011[,j to obtain modification of the [cjourt [ojrder in place in South Carolina. The [paternal grandparents’] right of visitation with the [motherj’s minor daughter is hereby suspended in the State of Alabama until August 10, 2011[,j or the same can be reviewed by the South Carolina [cjourt, with a view toward modification thereof allowing strict supervision of same for the safety and safe return of the child to her mother.”

On August 9, 2011, the mother filed a motion for an extension of the PFA orders in case no. DR-10-243 and case no. DR-10-481. In her motion, she alleged that the paternal grandparents continued to maké “verbal and physical threats against” the mother, the child, and third parties as described in the mother’s original PFA petitions despite the entry of the PFA orders in August 2010. The mother alleged that she continued to fear for her safety and for the safety of the child and that, without the extension of the PFA orders, the paternal grandparents would be able to carry out their threats. The paternal grandparents filed a response stating that the mother had not filed a petition to modify the South Carolina judgment, that the South Carolina court had not modified its judgment awarding them visitation, that they had not had any contact with the mother or the child as alleged by the mother, and that there was no basis for an extension of the PFA orders.

On August 15, 2011, the trial court granted the mother’s motion to extend the PFA orders for an additional 12 months— until August 15, 2012. On August 18, 2011, the paternal grandparents filed a motion to reconsider the trial court’s order extending the PFA orders.

The record indicates that, on December 19, 2011, the Family Court for the Ninth Judicial Circuit of South Carolina entered a judgment denying the mother’s request to transfer subject-matter jurisdiction and venue of the action in that court to the State of Alabama. The judgment stated that the mother had not requested a modification of the South Carolina judgment as directed by the trial court and that, instead, the mother had requested that the South Carolina court transfer subject-matter jurisdiction of the case to Alabama. The judgment stated that the South Carolina court could not grant the relief requested by the mother.

The trial court subsequently conducted an ore tenus hearing on January 5, 2012, and received evidence regarding whether the PFA orders in case nos. DR-10-243 and DR-10^481 should be extended or made permanent. On January 17, 2012, the trial court entered a judgment in case nos. DR-10-243 and DR-10^481 that stated, in pertinent part:

“The [cjourt finds that the [paternal grandparents] continue to present a credible threat of harm to the [mother] and her family and that a further order for protection is necessary for the [mother] and family and to prevent further abuse.
“Accordingly, the [c]ourt hereby grants the motion to extend the [o]rder for protection from abuse dated August 10, 2010, and in doing so, ORDERS AND ADJUDGES, the [paternal grandparents and the paternal aunt] ... are enjoined and prohibited from harassing, stalking, annoying, telephoning, contacting, or otherwise communicating with the [mother], her children, husband, or anyone in their extended families, in any matter whatsoever, in person, through a third (3rd) party, directly or indirectly, by mail, phone, or any other electronic means and shall maintain a distance away from the aforementioned persons of at least two thousand (2,000) feet at all times.”

The paternal grandparents filed a post-judgment motion pursuant to Rule 59, Ala. R. Civ. P., which was denied by the trial court. The paternal grandparents then filed a notice of appeal in case nos. DR-10-243 and DR-10-481.

On appeal, the paternal grandparents argue that the trial court lacked jurisdiction to enter a permanent PFA order that effectively modified the South Carolina judgment awarding them visitation with the child and that, therefore, the trial court’s January 17, 2012, judgement is void. We agree that the trial court’s January 17, 2012, judgment is void, but we do so for reasons different from those asserted by the paternal grandparents on appeal.

As noted in LaRose, supra, the PFA orders entered in case nos. DR-10-243 and DR-10-481 on August 10, 2010, were final, appealable judgments. As set forth above, the paternal grandparents did not timely appeal the August 10, 2010, PFA orders entered in case nos. DR-10-243 and DR-10^481. Our review of the August 10, 2010, judgments entered in case nos. DR-10-243 and DR-10^481 reveals that the trial court placed no time limitation on the effectiveness of the PFA orders; thus, the August 10, 2010, PFA orders in case nos. DR-10-243 and DR-10-481 were permanent. See § 30 — 5—7(d)(2), Ala.Code 1975 (“Any final protection order is of permanent duration unless otherwise specified or modified by subsequent court order.”). Therefore, the PFA orders in case nos. DR-10-243 and DR-10-481 are effective until modified by the trial court after a petition to modify the PFA orders has been filed. See § 30-5-7(d)(l), Ala. Code 1975 (“While the final protection order is in effect, the court may amend its order any time upon subsequent petition being filed by either party and a hearing held pursuant to this chapter”). Because the PFA orders entered in case nos. DR-10-243 and DR-10-481 were final and “permanent,” albeit subject to modification, the mother’s motions to extend the PFA orders, which were filed in case nos. DR-10-243 and DR-10-481, were moot because there was no time limitation on those PFA orders.

Our remand instruction to the trial court in LaRose, supm, to place a time limitation on the trial court’s assumption of jurisdiction was addressed only to case no. DR-10-243.01 because that case was the only case that this court had jurisdiction to review. Thus, to the extent that the trial court purported to amend the August 10, 2010, judgments in case nos. DR-10-243 and DR-10-481 on June 1, 2011, after remand from this court, the trial court erred in doing so because this court did not order the trial court to do so. Furthermore, because neither the mother nor the paternal grandparents filed a petition to modify the PFA orders entered in case nos. DR-10-243 and DR-10-481, the trial court never obtained subject-matter jurisdiction to enter any orders or judgments purporting to modify or amend the terms of the PFA orders entered on August 10, 2010, in case nos. DR-10-243 and DR-10-481. Accordingly, the trial court’s January 17, 2012, judgments in case nos. DR-10-243 and DR-10-481 are void. See R.L. v. J.E.R., 69 So.3d 898, 902 (Ala.Civ.App.2011) (“ Without subject-matter jurisdiction, any judgment entered in the action is void.’ ” (quoting Eagerton v. Second Econ. Dev. Coop. Dist. of Lowndes Cnty., 909 So.2d 783, 788 (Ala.2005))). “A void judgment will not support an appeal.” Id. Therefore, the paternal grandparents’ appeal taken from the January 17, 2012, judgments in case nos. DR-10-243 and DR-10^81 is dismissed, albeit with instructions to the trial court to vacate the January 17, 2012, judgments and any orders purporting to amend or modify the August 10, 2010, PFA orders entered in case nos. DR-10-243 and DR-10-481.

The mother’s and the paternal grandparents’ requests for an attorney fee on appeal are denied.

APPEAL DISMISSED.

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

THOMAS, J., recuses herself.

      . The terms defined in the following excerpt from LaRose, supra, will be used throughout this opinion.

      . The opinion in LaRose actually ordered the trial court "to comply with the limitations required by § 30-3B-204(b)." 71 So.3d at 658 (emphasis added). Although this apparent typographical error in LaRose is not mentioned by the parties on appeal — most likely because it is evident from reading the entirety of the opinion that we were referring to subsection (c) of § 30-3B-204 — we take this opportunity to note the error.

      . The paternal aunt did not participate in any of the proceedings after the cause was remanded to the trial court in April 2011.

      . There is also no indication in the record that the paternal grandparents sought to have the PFA orders in case nos. DR-10-243 and DR-10-481 vacated pursuant to Rule 60(b)(4), Ala. R. Civ. P.


author: THOMPSON, Presiding Judge.

text:
    BANK OF AMERICA, N.A. v. Evelyn J. KINSLOW, as trustee of the Evelyn J. Kinslow Revocable Trust.
    2110632.
    Court of Civil Appeals of Alabama.
    Dec. 7, 2012.

      John R. Chiles, Carol H. Stewart, and Rachel M. Blackmon of Burr & Forman LLP, Birmingham, for appellant.
    Jule R. Herbert, Jr., of Herbert Law Firm LLC, Gulf Shores, for appellee.
   THOMPSON, Presiding Judge.

Bank of America, N.A. (“Bank of America”), appeals from a judgment in favor of Evelyn J. Kinslow, as trustee of the Evelyn J. Kinslow Revocable Trust (“Kin-slow”). In the judgment, the trial court found that certain limited common elements assigned to a specific condominium unit were not subject to the mortgage Bank of America possessed as to that unit.

The evidence in the record on appeal indicates the following. Legacy Key is a condominium complex in Orange Beach. The complex contains 36 residential units. In addition to common elements of the complex, such as the swimming pool, the complex has the following “limited common elements”: 17 boat slips, 12 storage closets, and 8 carriage houses. The limited common elements were included in an amendment (“the first amendment”) to the declaration of condominium (“the declaration”), as required by § 35-8A-208(c), Ala. Code 1975, which is part of the Alabama Uniform Condominium Act (“the Act”), § 35-8A-101 et seq., Ala. Code 1975. The amendment provided that limited common elements would be appurtenant to the units. It also allowed owners of units to reallocate limited common elements by an amendment to the declaration, which is required to be provided to the condominium association.

In December 2003, Ellen B. McKinney purchased Unit 903 in Legacy Key. The deed conveying the unit to McKinney included Unit 903, “together with Storage Closet Number 1” and “Boat Slip Number 6.” The deed stated that the storage closet and boat slip were appurtenances to Unit 903, in accordance with the declaration.

In July 2007 McKinney and her husband refinanced the original $322,700 loan that was used to purchase Unit 903 and obtained a new loan in the amount of $700,000. Bank of America was the lender, and it held a mortgage on Unit 903 to secure the loan. The mortgage document, which is referred to as the “Security Instrument” in that document (“the security instrument”), defined the property with a legal description of Unit 903, which legal description was attached to the security instrument. The legal description included the statement: “Together with the appropriate undivided interest in the common areas and facilities declared in [the declaration] to be appurtenant to the above described unit.” The security instrument also contained the following language regarding the property subject to the mortgage:

“TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the ‘Property.’ ”

Section 18 of the security instrument defined an interest in the property as “any legal or beneficial interest in the Property.” The security instrument provided that if the McKinneys sold or transferred all or any part of the property without Bank of America’s consent, then Bank of America could require immediate repayment of the loan in full.

On April 3, 2009, McKinney executed an amendment to the declaration, transferring Storage Closet Number 1 and Boat Slip Number 6 from Unit 903 to Unit 101. Kinslow is the owner of Unit 101. The record does not include the amount, if any, Kinslow paid McKinney for the right to use the storage closet and boat slip. The amendment was recorded in the Baldwin County Probate Court the same day it was executed.

Eight months later, on December 28, 2009, Ted Tessem, a title-company employee who “acted as agent to a transaction on” Unit 903, executed a scrivener’s affidavit revising the legal description of Unit 903 as it appeared in the attachment to the security instrument. In the affidavit, Tes-sem said the original security instrument “contains errors in the Legal Description” and that the revision “shall serve to correct the instrument referenced above which is incorrect due to a Scrivener error.” The revision added the following language to the legal description:

“TOGETHER WITH:
“Storage Closet Number 1, which is an appurtenance to the above Unit # 903 in accord with the Declaration of Condominium and Amendments thereto.
“Boat Slip Number 6, which is an appurtenance to the above Unit # 903 in accord with the Declaration of Condominium and Amendments thereto.”

In its brief on appeal, Bank of America states that the scrivener’s affidavit was recorded in the Baldwin County Probate Court on December 28, 2009. However, the affidavit itself indicates that it was not recorded until February 9, 2010.

On August 2, 2010, Kinslow filed an action to quiet title to Storage Closet Number 1 and Boat Slip Number 6. She also sought -a judgment declaring that the amendment reallocating the storage closet and boat slip from Unit 903 to Unit 101 was valid and that the storage unit and boat slip were now for the exclusive use of Unit 101 and were not subject to Bank of America’s mortgage on Unit 903.

Kinslow and Bank of America each filed properly supported motions for a summary judgment. There is no dispute over the facts; the issues presented are clearly issues of law. After considering the motions, briefs, and arguments of the parties, in an order dated November 15, 2011, the trial court determined that the storage closet and boat slip were not appurtenances to Unit 903, the unit subject to the mortgage. It also found that those limited common elements were not described in the mortgage. Accordingly, it granted Kinslow’s motion for a summary judgment and asked her attorney to prepare a judgment.

In the judgment, entered on November 30, 2011, the trial court found that the exclusive use of limited common elements like the boat slip and the storage unit was not an appurtenance to Unit 903 such that the right was subject to the mortgage “in as much as this right was not set out or described in the mortgage as a right being conveyed to Bank of America.” Because the declaration allows limited common elements to be reallocated among units in the condominium complex, the trial court said, the exclusive right to use limited common elements does not “run with the land” but is a personal right of the unit owner that can be freely reallocated to another unit owner.

In reaching its conclusion, the trial court cited Miller v. Associated Gulf Land Corp., 941 So.2d 982, 985-86 (Ala.Civ.App.2005), for its definition of an appurtenant right, quoting the following from that case:

“In order for a covenant to be enforced as one that ‘runs with the land,’ it must both (1) have been intended by the parties creating it to run with the land and (2) touch and concern the land. See, e.g., Allen v. Axford, 285 Ala. 251, 231 So.2d 122 (1970); Smith v. First Sav. of Louisiana, FSA, 575 So.2d 1033 (Ala.1991); Patterson v. Atlantic Coast Line R. Co., 202 Ala. 583, 589, 81 So. 85, 91 (1919) (noting that, in keeping with the seminal English case known as ‘Spencer’s case’ (5 Coke, 16), ‘a covenant will not run with the land if it be merely collateral, and doth not touch or concern the thing demised’). In discussing these requirements, we find it convenient to utilize the following definitions stated in the Restatement (Third) of PropeHy (Servitudes) § 1.5 (2004):
“ ‘(1) “Appurtenant” means that the rights or obligations of a servitude are tied to ownership or occupancy of a particular unit or parcel of land. The right to enjoyment of an easement or profit, or to receive the performance of a covenant that can be held only by the owner or occupier of a particular unit or parcel, is an appurtenant benefit. A burden that obligates the owner or occupier of a particular unit or parcel in that person’s capacity as owner or occupier is an appurtenant burden.
“ ‘(2) “In gross” means that the benefit or burden of a servitude is not tied to ownership or occupancy of a particular unit or parcel of land.
“ ‘(3) “Personal” means that a servitude benefit or burden is not transferable and does not run with land. Whether appurtenant or in gross, a servitude benefit or burden may be personal.’
“Turning first to the requirement that the covenant have been intended by the parties creating it to run with the land, we observe that the deed from AGLC to Gilbreath expressly addresses this issue. First, as to the burden of the covenant, the deed restricts the use of what is now the Miller property ‘by the Grantees, their heirs and assigns.’ Further, it specifically provides that the burdened property (‘the servient estate’) shall ‘never be used for a trailer park or any other commercial purpose.’ (Emphasis added.) Even plainer and more to the point, the deed expressly states that ‘the burden of this restrictive covenant shall run with said lands and shall be binding on the grantees, their heirs and assigns.’ (Emphasis added.)”

(Footnote omitted.)

The trial court reasoned that because the declaration gives unit owners the right to transfer the right of exclusive use of a limited common element to another unit owner, that use is “merely collateral” to the real property covered by the mortgage and is not tied to ownership or occupancy of a particular unit.

The trial court further cited authority for the proposition that a contest over property rights is governed by the deed in question. In bracketed language, the trial court extended that proposition to cover the mortgage in question. “Here the mortgage to Bank of America did not manifest any objective intent on the part of McKinney to transfer or encumber her rights as set out in the First Amendment [to the declaration] concerning the limited common elements assigned to her unit.” The trial court then entered a judgment in favor of Kinslow and denied Bank of America’s motion for a summary judgment. Bank of America appealed to our supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Bank of America argues that the trial court erred in finding that Storage Closet Number 1 and Boat Slip Number 6 are not appurtenant to Unit 90S. Specifically, it contends that the Act, the Commissioners’ Commentary to the Act, the declaration, and the first amendment to the declaration make clear that limited common elements can be used only in conjunction with a unit. In other words, Bank of America asserts that a limited common element is appurtenant to a unit and not to a unit owner.

Bank of America cites § 35-8A-208 in support of its assertion that the limited common elements are appurtenant to a unit, rather than an exclusive right granted to a unit owner. That statute provides:

“(a) Except for the limited common elements described in section 35-8A-202(2) and (4), the declaration must specify to which unit or units each limited common element is allocated. An allocation may not be altered without the consent of the unit owners whose units are affected.
“(b) Except as the declaration otherwise provides, a limited common element may be reallocated by an amendment to the declaration executed by the unit owners between or among whose units the reallocation is made. The persons executing the amendment shall provide it to the association, which shall record it and the cost shall be borne by the persons executing the amendment. The amendment shall be recorded and indexed in the names of the parties and the condominium.
“(c) A common element not previously allocated as a limited common element may not be so allocated except pursuant to provisions in the declaration made in accordance with section 35-8A-205(a)(7). The allocations must be made by amendments to the declaration.”

(Emphasis added.)

The rules this court employs in interpreting a statute are well settled: “Words used in the statute must be given then-natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.” Tuscaloosa Cnty. Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa Cnty., 589 So.2d 687, 689 (Ala.1991). “[T]he first rule of statutory construction [is] that where the meaning of the plain language of the statute is clear, it must be construed according to its plain language.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 504 (Ala.1993). “Principles of statutory construction instruct this Court to interpret the plain language of a statute to mean exactly what it says and to engage in judicial construction only if the language in the statute is ambiguous.” Ex parte Pratt, 815 So.2d 532, 535 (Ala.2001).

Here, the plain language § 35-8A-208 makes clear that the limited common elements are appurtenant to a unit in a condominium. Moreover, the first amendment to the Legacy Key declaration contemplates that the limited common elements would be appurtenant to a specific unit. The first amendment includes an exhibit that allocates specific carriage houses, storage closets, and boat slips to specific units. As to storage closets, the first amendment provides:

“In accordance with § 35-8A-208 ... each storage closet allocated as a Limited Common Element to a unit designated in this Amendment filed by the Developer, may be allocated. Each unit so designated shall be entitled to an exclusive easement for the use and enjoyment of said storage closet allocated to that unit, but such right shall not entitle owner to make any structural changes thereof, nor use it for any commercial activities, nor for any other use except in accord with the guidelines prepared by the Association and amended from time to time. Unit owners, in accordance with § 35-8A-208 ... may re-allocate a storage closet by an amendment to the Declaration.”

(Emphasis added.)

Similarly, as to the boat slips, the first amendment provides:

“In accordance with Section 35-8A-208 ... each Boat Slip allocated as a Limited Common Element to a Unit designated in this amendment filed by the Developer, may be reallocated. Each Unit so designated shall be entitled to an exclusive easement for the use and enjoyment of said Boat Slip(s) allocated to that Unit, but such right shall not entitle an Owner to construct anything thereon nor change any structural part thereof, nor use it for any commercial activities other than as may be constructed or changed in accord with guidelines prepared by the Association and amended from time to time. Unit Owners, in accordance with Section 35-8A-208 ... may reallocate a Boat Slip by an amendment to the Declaration.”

(Emphasis added.)

In determining that limited common elements are not appurtenant to specific units in Legacy Key, the trial court relied on Miller v. Associated Gulf Land Corp., supra. In Miller, the issue was whether a restrictive covenant contained in a deed was personal to a previous purchaser of a parcel of land or whether the covenant ran with the land. This case does not involve restrictive covenants within a deed, however. Instead, the rights of Legacy Key unit owners are governed by the Act, the decía-ration, and the amendments to the declaration. Because the applicable authority is explicit and unambiguous in stating that limited common elements are appurtenant to a unit in a condominium, Miller has no application in this ease, and the trial court’s reliance on Miller was misplaced.

There is no doubt that the plain language of both the Act and the Legacy Key declaration provide that a limited common element is appurtenant to a unit. Accordingly, the trial court erred as a matter of law in its determination that the boat slip and the storage closet were not appurtenant to Unit 903.

With the determination that the limited common elements at issue — the boat slip and storage closet — are appurtenant to McKinney’s unit, we turn now to Bank of America’s contention that the trial court erred in finding that those limited common elements are not subject to the terms of the mortgage. Bank of America correctly points out that Alabama courts previously have not been called on to address this issue. However, it cites as persuasive authority a Virginia case, Shehadeh v. Fountains at McLean Condominium Unit Oumers Association, 79 Va. Cir. 103 (2009). Although Sheha-deh is not exactly on point, we do find it to be instructive. In Shehadeh, Robert Hart purchased a condominium unit at Fountains at McLean. The deed of conveyance encompassed the unit and “‘the limited common elements appurtenant thereto, including limited common element parking space(s) No. 0-333 and 0-332 established by condominium instruments’ ” that had been properly recorded. l'd Hart then conveyed the property to Samuel L. White, P.C. The deed of trust, which Bank of America states in its brief is the equivalent of a mortgage, used the same language as the deed conveying the property to Hart, which included references to the limited common elements appurtenant to the unit and specifying the two parking spaces appurtenant to the unit. Id. The Virginia court held that the exclusive right to use limited common elements can be subject to a mortgage.

In this case, however, unlike the parking spaces involved in Shehadeh, the boat slip and the storage closet assigned to McKinney’s unit — Unit 903 — were not specifically included in the description of the property subject to the mortgage. Therefore, we must determine whether the failure to include the limited common elements in the description of the property excludes them from the property subject to the mortgage.

Section 35-8A-204 sets forth what constitutes a valid legal description of a specific unit in a condominium:

“A description of a unit which sets forth the name of the condominium, the recording data for the declaration, the county in which the condominium is located, and the identifying number of the unit, is a sufficient legal description of that unit and all rights, obligations, and interests appurtenant to that unit which were created by the declaration or bylaws.”

(Emphasis added.) The Commissioners’ Commentary to § 35-8A-204 states:

“1. The intent of this section is that no description of a unit in a deed, lease, deed of trust, mortgage, or any other instrument or document shall be subject to challenge for failure to meet any common law or other requirements so long as the requirements of this section are satisfied, and so long as the declaration itself, together with the plats and plans which are a part of the declaration, provides a legally sufficient description.
“2. The last sentence makes clear that an instrument which does meet those requirements includes all interest appurtenant to the unit. As a result, it will not be necessary under this Act to continue the practice, common in some jurisdictions, of describing the common element interests, or limited common elements, that are appurtenant to a unit in the instrument conveying title to that unit.”

(Emphasis added.)

Because we have concluded that limited common elements are appurtenant to a specific unit, we also conclude that any description meeting the requirements of § 35-8A-204 is sufficient to encompass the limited common elements “appurtenant” to that unit within the property subject to a mortgage. The mortgage that Bank of America held on McKinney's unit defined the property subject to the mortgage as follows:

“Unit 903 of Legacy Key, a condominium, located in Baldwin County, Alabama according to that certain Declaration of Condominium of Legacy Key, a condominium, together with all exhibits attached thereto, including the By-Laws of Legacy Key Condominium Association, Inc., dated November 14, 2003, and recorded at Instrument # 772977, of the records in the Office of the Judge of Probate of Baldwin County, Alabama. Together with the appropriate undivided interest in the common areas and facilities declared in said Declaration to be appurtenant to the above described unit.”

That description sets forth the name of the condominium, the recording data for the declaration, the county in which the condominium is located, and the identifying number of the unit. At the time the mortgage was created, the boat slip and storage closet at issue were assigned to Unit 903. Because the legal description of unit 903 included in McKinney’s mortgage met the requirements of § 35-8A-204, the limited common elements assigned to Unit 903, including the boat slip and the storage closet, were also subject to the mortgage, even though they were not specifically included in the legal description. Therefore, the trial court also erred as a matter of law in finding that the limited common elements were not subject to the mortgage. Because of our holdings in this case, we pretermit discussion of the other issues that Bank of America has raised on appeal.

For the reasons set forth above, the judgment is reversed, and we remand the cause to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . There is a distinction between "common elements” and "limited common elements.” The Act defines a common element as "[a]ll portions of a condominium other than the units.” § 35-8A-103(4). Common elements include things like swimming pools, barbeque areas, etc. A limited common element is defined as a portion of the common elements allocated by the declaration or an amendment to the declaration "for the exclusive use of one or more but fewer than all of the residents.” § 35-8A-103(16). Limited common elements include things like assigned parking spaces, boat slips, storage units, etc.