author: MAIN, Justice. MOORE, Chief Justice

text:
    Ex parte Martin WELCH. (In re State of Alabama v. Martin Welch).
    1120549.
    Supreme Court of Alabama.
    July 3, 2013.
    James M. Byrd, Mobile, for petitioner.
    Luther Strange, atty. gen., and John Neiman, deputy atty. gen., and John J. Davis, asst. atty. gen., for respondent.
   MAIN, Justice.

PETITION DENIED. NO OPINION.

STUART, BOLIN, PARKER, SHAW, WISE, and BRYAN, JJ., concur.

MOORE, C.J., and MURDOCK, J., dissent.

MOORE, Chief Justice

(dissenting).

Martin Welch was convicted of attempted murder and was sentenced to 20 years in prison. He requested release on bail pending appeal. Section 12-22-170, Ala. Code 1975, which provides an absolute right to bail if the sentence is 20 years or less, states, in pertinent part: “If the sentence is for a term not exceeding 20 years, the judge must direct the clerk of the court in which the conviction is had to admit the defendant to bail in a sum to be fixed by the judge, with sufficient surety....” (Emphasis added.)

The trial court denied the request for bail. The Court of Criminal Appeals denied Welch’s petition for a writ of habeas corpus, citing Rule 7.2, Ala. R.Crim. P., which makes the decision whether to grant postconviction bail discretionary with the court. Ex parte Welch (No. CR-12-0291, Feb. 4, 2013), — So.3d - (Ala.Crim. App.2013) (table). Rule 7.2(c)(2) states: “Any defendant who has been convicted of an offense for which the defendant has been sentenced to a term of imprisonment for twenty (20) years or less may be released on a secured appearance bond or on the defendant’s personal recognizance.” (Emphasis added.) The rule and the statute are in conflict. I conclude that the statutory right to postconviction bail is substantive, not merely procedural, and that § 12-22-170 was not superseded by Rule 7.2. Therefore, I dissent from the denial of Welch’s petition for a writ of mandamus.

1. Constitutional limits on rule-making authority.

The Alabama Supreme Court has the power to “make and promulgate rules ... governing practice and procedure in all courts; provided, however, that such rules shall not abridge, enlarge or modify the substantive right of any party.... ” Ala. Const.1901, Art. VI, § 150 (emphasis added). See also § 12-2-7(4), Ala.Code 1975 (same). If the statutory entitlement to postconviction bail is a substantive right, this Court cannot limit it by a procedural rule. See Ex parte General Motors Corp., 800 So.2d 159, 164 (Ala.2000) (Lyons, J., concurring specially) (“The Rules of Civil Procedure cannot be applied if applying them would offend restrictions imposed by our Constitution.”).

II. Statements in Alabama judicial opinions on the effect of Rule 7.2 on § 12-22-170.

Previous opinions of this Court have stated that Rule 7.2 supersedes § 12-22-170. In none of those opinions, however, has the majority directly addressed the specific issue presented here: Whether Rule 7.2, in contravention of § 150 of the Alabama Constitution, abridges a substantive right.

In Ex parte Watson, 757 So.2d 1107, 1111 (Ala.2000), this Court noted that the Committee Comments to Rule 7.2 say that the rule “modifies the absolute right to an appeal bond granted by § 12-22-170 to a defendant sentenced to 20 years or less of imprisonment.” The Court then observed: “In accord with this view, the defendant-petitioner relies on Rule 7.2, Ala. R.Crim. P., ... rather than on § 12-22-170.” Id. Thus, in Watson the petitioner assumed Rule 7.2 preempted the statute; whether the Constitution’s “abridge, modify or enlarge” clause requires that § 12-22-170 prevail over Rule 7.2 was not at issue. In Ex parte Ziglar, 604 So.2d 384 (Ala.1992), this Court stated that Rule 7.2 had superseded § 12-22-170. That statement, however, was dicta. Because of an ex post facto bar to the retroactive application of Rule 7.2 in that case, the Court actually held that § 12-22-170 entitled Ziglar to release on bail. Thus, no conflict between Rule 7.2 and § 12-22-170 manifested in Ziglar. In Ex parte Kando-la, 77 So.3d 1209 (Ala.Crim.App.2011), the court stated that Rule 7.2 had superseded § 12-22-170. Id. at 1213. That statement, however, also was dicta. The issue before the Court of Criminal Appeals in Kandola was whether the defendant was a “technical probation violator” and entitled to take advantage of § 15-22-54.1, Ala. Code.1975. In Ex parte Maxwell, 675 So.2d 546 (Ala.Crim.App.1996), noting that Rule 7.2(c) “modified” § 12-22-170, the court remanded the cause for factual findings as to whether a postconviction bond would be appropriate. As authority, the court cited the Committee Comments to the rule. Whether § 12-22-170 granted a substantive right and could not be superseded by a procedural rule was not discussed.

None of these cases directly grappled with the issue raised by Welch — whether a statutory entitlement to bail is a substantive right that may not be modified by a procedural rule.

III. The right to bail is a right to liberty.

“[A]ll men ... are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.” Ala. Const.1901, Art. I, § 1 (emphasis added). A statutory entitlement to liberty is indisputably a substantive right and therefore may not be abridged by a court procedural rule. Rule 7.2(d), Ala. R.Crim. P., which requires denial of postconviction bail if the trial judge “has reason to believe” the defendant is a flight risk or a danger to the community, embodies substantive policy concerns that transcend court procedure and are nowhere found in § 12-22-170.

This Court has previously described § 12-22-170 in substantive terms. It stated of a predecessor statute:

“The taking of the appeal and the election by the defendant to have the execution of the sentence suspended, made known to the court, supplies the statutory invocation requiring the exercise of the trial court’s power to suspend the execution of the judgment pending the appeal and to allow the defendant bail, in bailable cases, as a matter of right.”

Ex parte Mancil, 217 Ala. 486, 487, 116 So. 908, 909 (1928) (emphasis added). See Ex parte Jones, 444 So.2d 888, 890 (Ala.1988) (describing bail pending appeal as “a right granted by § 12-22-170 to all convicted criminal defendants whose sentence is twenty years or less”) (emphasis added). See also State v. District Court of Second Jud. Dist., 715 P.2d 191, 194 (Wyo.1986) (“Surely it cannot be gainsaid that a right to bail is a manifestation of the interest of the individual in his personal liberty.”); Kenneth S. Gallant, Judicial Rule-Making Absent Legislative Review: The Limits of Separation of Powers, 38 Okla. L.Rev. 447, 459 (1985) (noting that bail “affects the most important substantive right involved in most serious criminal cases — the right of the defendant to freedom”).

Analogous cases underscore the substantive nature of a statutory right to liberty. The United States Supreme Court described a grant of parole as a conditional entitlement to liberty. “[T]he parolee is entitled to retain his liberty as long as he substantially abides by the conditions of his parole.” Morrissey v. Brewer, 408 U.S. 471, 479, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). This substantive right to liberty “includes many of the core values of unqualified liberty and its termination inflicts a ‘grievous loss’ on the parolee.... ” Id. at 482. See also Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (applying Morrissey analysis to probation). Similarly, the statutory right to bail pending appeal is an entitlement to liberty that “includes many of the core values of unqualified liberty.”

Ohio, like Alabama, had a “shall not abridge, enlarge or modify” limitation on the constitutional authority of its supreme court to make court rules affecting substantive rights. An Ohio “cite and release” statute provided, with certain exceptions, that a police officer “shall issue a citation” rather than making an arrest for a minor misdemeanor. In State v. Slatter, 66 Ohio St.2d 452, 423 N.E.2d 100 (1981), the appellant claimed that a parallel rule of criminal procedure made the issuance of citations discretionary. The Ohio Supreme Court held that the statute created “a substantive right of freedom from arrest for one accused of the commission of a minor misdemeanor unless one of the statutory exemptions exists.” 66 Ohio St.2d at 458, 423 N.E.2d at 104. It then quoted the lower appellate court: ‘“This statute acts to preclude arrest and is a guarantee of personal freedom given by the legislature where no such right existed before.’ ” Id. The court described a statutory right not to be subject to arrest for a minor crime as a “substantive right of freedom” and “a guarantee of personal freedom given by the legislature.” The right given by the Alabama Legislature not to be subject to imprisonment pending appeal for certain felonies is similarly a “substantive right of freedom.”

IV. Acknowledging error.

This Court has in the past acknowledged that it cannot abridge substantive rights by a court rule. When the legislature passed a new juvenile code in 1975, the Court, needing time to develop corresponding procedural rules, deferred the effective date of the law by court order until those rules could be prepared. Ex parte Ward, 540 So.2d 1350, 1351-52 (Ala.1988). A juvenile was defined in the former Code as someone “under sixteen,” and in the new Code as someone “under seventeen.” By delaying the effective date of what was known as Article 5, the Court deprived Ward, who was 16 at the time of his offense, of status as a juvenile under the new law. Finding that the state constitution prohibited modification of the jurisdiction of the juvenile court by a court rule, this Court retracted its action. “Article 5 created substantive rights for qualified juveniles,” the Court wrote, “which this Court’s rules could not abridge.” 540 So.2d at 1353. Likewise, in this case the Court should grant the petition to recognize that Rule 7.2, contrary to the holding of the Court of Criminal Appeals, cannot supersede the substantive right to liberty provided by § 12-22-170.

V. Conclusion.

Presciently warning about what has come to pass in this Court’s abridgement of the right to bail pending appeal, the Mancil Court observed: “If it may be said that this statutory system of review is too liberal to the accused, and detrimental to the due and orderly enforcement of the criminal law, the responsibility, as well as the remedy, is with the Legislature and not the courts.” 217 Ala. at 487,116 So. at 909-10. The line separating substance from procedure expresses the separation-of-powers principle that a divided government preserves liberty by inhibiting undue consolidation of power. As James Madison stated: “[U]surpations are guarded against by a division of the government into distinct and separate departments.” Ex parte Jenkins, 723 So.2d 649, 654 (Ala.1998) (quoting The Federalist No. 51, at 322-23 (James Madison) (Clinton Rossiter ed., 1961) (emphasis omitted)).

Because the constitutional restrictions on this Court prohibit the abrogation of § 12-22-170 by a rule of procedure, Welch has a clear legal right to bail pending appeal in whatever amount the trial judge determines to be reasonable under the circumstances. I therefore respectfully dissent from the denial of Welch’s petition for a writ of mandamus.

MURDOCK, J., concurs.

      . Section 12-1-1, Ala.Code 1975, implementing § 150 of the Constitution, provides that court rules supersede conflicting statutes regulating procedure. However, the legislature in turn has the power to change any court rule of procedure “by a general act of statewide application.” Ala. Const.1901, Art. VI, § 150.

      . Welch characterizes the issue as follows: "The right to bond pending appeal when the sentence does not exceed twenty (20) years is a substantive legislated right that can not be taken from the citizens of this State by a rule of procedure.” (Welch's brief, at 6.)

      . Committee comments are not controlling authority. "Although the purpose of the Committee Comments is to explain and clarify the Rules of [Criminal] Procedure,” Ex parte Anderson, 644 So.2d 961, 963 (Ala. 1994), they serve only as "persuasive authority.” Meadows v. State, 644 So.2d 1342, 1345 (Ala.Crim.App. 1994).

      . Sir William Blackstone observed in the 18th century that the personal liberty of individuals "is a right strictly natural; that the laws of England have never abridged it without sufficient cause; and, that in this kingdom it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws.” 1 William Blackstone, Commentaries *130.

      . The statutory entitlement to postconviction bail, although a substantive right, is not of constitutional dimension. The constitutional prohibition on excessive bail applies only "before conviction.” Ala. Const.1901, Art. I, § 16. See Ex parte Pace, 45 Ala.App. 132, 133, 226 So.2d 676, 676 (1969) (“The provisions affording bail pending appeal ... are not within the influence of Constitution 1901, § 16, which prohibits excessive bail.”). The only reference to the amount of bail in § 12-22-170 is that it be "fixed by the judge.”


source: Caselaw Access Project

author: PITTMAN, Judge. MOORE, Judge, DONALDSON, Judge,

license: Public Domain

text:
    EX PARTE MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES and Tyron Newton (In re The Matter of C.C., a minor child).
    2111200.
    Court of Civil Appeals of Alabama.
    July 12, 2013.

      Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for petitioners.
    E. Patrick Hill, Huntsville, for respondent.
   PITTMAN, Judge.

The Madison County Department of Human Resources (“DHR”) and its assistant director, Tyron Newton, appeal from a September 13, 2012, order of Madison Juvenile Court Judge Claude E. Hundley III, finding them in criminal contempt of court for their willful disobedience of a court order. As a contempt sanction, Judge Hundley sentenced Newton to pay a fine of $2,000 by 9:00 a.m. on September 17, 2012, or to turn himself into the jail for five days’ incarceration plus pay the fine. DHR and Newton sought a writ of mandamus from this court, directing Judge Hundley to vacate his order holding Newton and DHR in contempt. We treat the petition as an appeal from an adjudication of contempt, pursuant to Rule 70A(g)(2), Ala. R. Civ. P., and we reverse the finding of contempt.

The underlying action is a dependency action involving 13-year-old C.C., who had been in the custody of his maternal grandparents while his parents were incarcerated. On January 30, 2012, after the mother was released from incarceration, she and the maternal grandmother petitioned the juvenile court to transfer custody back to the mother. The juvenile court requested that DHR perform a home study.

Judge Hundley held a hearing on June 11, 2012, at which he received evidence indicating that the maternal grandmother’s residence was unsanitary; that there were 16 dogs kept inside the residence; and that the mother had been living in the maternal grandmother’s residence until March 9, 2012, when she had tested positive for the presence of cocaine and marijuana and DHR had required that she move out of the residence. In addition, the court was presented with evidence indicating that the maternal grandparents, who had recently been incarcerated (and were currently on probation) for a truancy offense, were unable to make C.C. obey their rules and attend school. At the hearing, Judge Hundley ordered immediate drug testing of the maternal grandmother, the mother, and C.C. The mother’s and C.C.’s tests were positive for illegal drugs; the maternal grandmother’s test indicated the presence of numerous medications. The court granted DHR shelter-care custody of C.C. and set a hearing for August 16, 2012, regarding legal custody. DHR placed C.C. in foster care.

On June 21, 2012, Judge Hundley held a hearing to determine the whereabouts of C.C., who had been missing for two weeks after having run away from the maternal grandmother’s home when he learned that he was to be placed in foster care. The mother and the maternal grandparents denied knowing C.C.’s whereabouts. However, after C.C.’s maternal great-grandfather testified that C.C. was at the maternal grandmother’s residence, Judge Hundley ordered that the mother and the maternal grandparents be jailed until C.C. was found. When C.C. was located two days later, he tested positive for the presence of drugs.

At the beginning of the hearing on August 16, 2012, counsel for DHR informed the court that, because of C.C.’s proclivity to run away, DHR had made attempts to place him in five different secure facilities, but all the facilities had declined to accept him, based on his behavior, his age, or, in the case of The Bridge — an inpatient drug-treatment facility — because C.C.’s most recent drug test on July 19, 2012, had been negative and he was not, therefore, deemed to be “in crisis” so as to meet the admission criteria. Karnetris Langford, C.C.’s caseworker, testified that C.C. had been diagnosed as suffering from a generalized anxiety disorder, had been taking medication for that condition, and had been counseled by Jose Rivera, a child and adolescent therapist at the Madison County Mental Health Center.

Langford had received a report from the counselors at the Harris Home for Boys (a placement from which C.C. had also run away) indicating that C.C. had admitted that, before he had come into DHR’s custody, he had been using drugs on a daily basis. Langford stated that Rivera had recommended that DHR enroll C.C. in an intensive outpatient drug-treatment program. Carolyn Harris, Langford’s supervisor, recommended that C.C. remain in DHR’s custody so that DHR “could continue to seek a treatment facility for him as directed by [Judge Hundley].” When the guardian ad litem asked Harris whether DHR was willing to pay for drug treatment for C.C., Harris stated that DHR would look for a facility that accepted Medicaid. The guardian ad litem argued to the juvenile court that C.C. was “a victim of DHR’s budgetary cuts” and informed the court that Bradford Health Services (“Bradford”) operated a local adolescent drug-treatment facility to which C.C. could be sent and for which, the guardian ad litem maintained, DHR should pay.

At the conclusion of the hearing, Judge Hundley orally stated that he wanted C.C. to have inpatient treatment for substance abuse and orally ordered DHR and the guardian ad litem to participate in an Individualized Service Program (“ISP”) meeting the following day, August 17, 2012, to discuss a treatment plan for C.C. Judge Hundley did not enter a written order memorializing his oral rulings at the August 16, 2012, hearing.

At the August 17, 2012, ISP meeting, DHR representatives and the guardian ad litem discussed the possible placement of C.C. at two residential facilities — The Bridge and Bradford. Two independent assessments had indicated that C.C. was not eligible for inpatient treatment at either facility; DHR, nonetheless, attempted to have C.C. admitted to The Bridge or Bradford because Judge Hundley had said that he wanted C.C. to have inpatient treatment.

The Bridge indicated that it did not have a bed available for C.C. Bradford, however, after initially informing DHR that inpatient treatment was not appropriate for C.C., agreed to admit him on August 21, 2012. DHR then asked Bradford to provide it with written confirmation that C.C. had been accepted for admission for inpatient treatment. Bradford initially refused, and DHR declined to place C.C. at Bradford without the written confirmation.

On August 23, 2012, the guardian ad litem filed a petition seeking to have the juvenile court hold DHR and Newton in contempt due to their failure to enroll C.C. in an inpatient treatment program. The juvenile court set the guardian ad litem’s contempt petition for a hearing on August 29, 2012. The August 29, 2012, hearing on the guardian ad litem’s contempt petition was continued until September 11, 2012, because DHR and Newton had not been served with process. DHR, Newton, and the Alabama Attorney General were given actual notice of the guardian ad litem’s petition and the hearing date before the September 11 hearing but were not properly served. DHR entered a limited appearance to object to the guardian ad li-tem’s contempt petition. DHR objected on the grounds that no written order requiring DHR to place C.C. in inpatient treatment had ever been entered and that DHR and Newton had not been properly served with process.

At the September 11, 2012, hearing, Newton testified that, when Bradford agreed to admit C.C. on August 21, 2012, he had decided to put C.C.’s placement at Bradford on “hold” and to exhaust all resources for placing C.C. at The Bridge. Newton stated that he had decided to pursue The Bridge option further because The Bridge’s treatment program was longer, more comprehensive, and, he thought, more appropriate for C.C. than Bradford’s treatment program. He explained that the Bradford program lasted 21 days and was limited to substance-abuse treatment, whereas, he said, The Bridge program could last up to 60 days and addressed behavioral as well as substance-abuse issues. Newton testified that he had spoken to Rivera concerning “what was needed to get [C.C.] into The Bridge” and that Rivera had told Newton that the decision was up to the clinical director, who would have to sign a certificate of need.

On cross-examination, Newton acknowledged that, when he asked Bradford for confirmation of C.C.’s acceptance on August 21, 2012, he knew that a bed at Bradford might not still be available for C.C. after he received the confirmation. He also acknowledged that an inpatient stay at Bradford, which did not accept Medicaid, would cost DHR $6,000, whereas a substantial portion of the inpatient stay at The Bridge would be paid by Medicaid.

Rivera testified that, on July 19, 2012, he performed a substance-abuse assessment of C.C. after receiving reports that C.C. had failed a court-ordered drug test in June 2012. Rivera said that, because C.C.’s July 19, 2012, drug test was negative and C.C. did not qualify for inpatient treatment under an eight-point criterion used by The Bridge and other treatment facilities, he recommended to DHR that C.C. be enrolled in an intensive outpatient program. Rivera opined that C.C. needed “behavioral intervention and treatment with substance-abuse components attached to it. But [C.C.’s] primary issue ... [is] not substance abuse; it [is] behavioral as a result of his mental illness ... he was not on his medication and as a result he was out of control.”

Rivera stated that, although he normally would not have submitted an application that did not meet the criteria for inpatient admission, he submitted an application to The Bridge for C.C.’s inpatient admission because “DHR personnel had informed [him] that they were being pressured by the court to make this happen.” Newton said that he had “explained to [DHR personnel] that [C.C.] doesn’t meet criteria and [inpatient treatment] was inappropriate, and [DHR personnel] [had] said ‘this is what the judge wants; make it happen if you can.’ ” On Monday, August 27, 2012, Newton was notified that The Bridge had a bed available for C.C. C.C. was admitted to The Bridge on August 28, 2012.

At the conclusion of the September 11, 2012, hearing, the court announced its rulings from the bench. It found DHR in willful contempt of court, and it found Newton in willful contempt of court and fined him $250 for each of the eight days, inclusive, between August 21, 2012, when a bed became available for C.C. at Bradford, and August 28, 2012, when C.C. was admitted to The Bridge. The court ordered Newton to pay a fine totaling $2,000 by 9:00 a.m. on September 17, 2012, or to turn himself into the jail for 5 days’ incarceration plus pay the fine. In a written order dated September 18, 2012, Judge Hundley made the following finding of facts and conclusions of law:

“2. That as Ordered by this Court on August 16, 2012, an ISP was held in regard to the minor, [C.C.], on August 17, 2012, at which time the parties worked on the problems which had prevented the minor child from getting into a secure residential facility to address his problems, and the case worker assigned did as requested and obtained a placement for the minor at Bradford; said assessment being done at Bradford on August 20, 2012, with a bed becoming available at Bradford on August 21, 2012.
“3. That Tyron Newton, Assistant Director of Child Welfare and Adult Services at the Madison County Department of Human Resources, after hearing that a bed was available at Bradford for [C.C.] on August 21, 2012 intentionally failed and refused to follow this court’s order and place the child in such facility. That he inserted himself into the process, and rather than working to facilitate the order of the court, he, on his own, decided not to allow the minor to go to the facility as ordered by the court and agreed upon by the parties at the ISP and arranged by the worker. That [DHR’s] prior practice had been for placement to occur once a verbal [acceptance of admission] had been received and approved by a supervisor and program coordinator. Having understood and being fully aware of the court’s order, Mr. Newton simply stopped the transfer to the facility and had no other placement available or in the works. His actions endangered the child and the child’s welfare and violated the court’s directive. That he sought to hide his actions and only compounded his disregard for the court’s orders keeping the child out for up to eight (8) days before said minor could be placed in another available facility.
“4. That Tyron Newton’s behavior subsequent to finding placement for the minor at Bradford was an obstruction to the administration of justice and his behavior was committed in such a manner as to interrupt, disturb and hinder the court in carrying forth the rulings set forth by the court to take care of the best interests of this child.
“5. That Tyron Newton’s actions have been wilfully disobedient of this court’s command and order in that he knew the court ordered him to appear in court for a hearing on August 29, 2012 and instead he purposely traveled to Jackson County, Alabama and did not appear in court and these actions were fraudulent and in bad faith disregard of the order of the court and outside the normal operating procedure in these type situations. As a result of said actions, Tyron Newton is not entitled to state-agent immunity.”

Standard of Review

“[T]he standard of review in an appeal from an adjudication of criminal contempt occurring in a civil case is whether the offense, i.e., the contempt, was proved beyond a reasonable doubt. Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988); Combs v. Ryan’s Coal Co.,. 785 F.2d 970 (11th Cir.1986); and United States v. Turner, 812 F.2d 1552 (11th Cir.1987).... In Turner, the Court, in discussing the standard of review in a criminal-contempt case, said:

“ ‘The essential elements of the criminal contempt for which punishment has been imposed on [the defendant] are that the court entered a lawful order of reasonable specificity, [the defendant] violated it, and the violation was wilful. Guilt may be determined and punishment imposed only if each of these elements has been proved beyond a reasonable doubt.’

“Turner, 812 F.2d at 1563. The Turner court also stated, quoting Gordon v. United States, 438 F.2d 858, 868 n. 30 (5th Cir.1971):

“ ‘ “The test is whether the evidence is sufficient to justify the trial judge, as trier of the facts, in concluding beyond a reasonable doubt that the defendant was guilty, and that such evidence is inconsistent with any reasonable hypothesis of his innocence. Such is the substantial evidence test.” ’

“Turner, 812 F.2d at 1563.”

Ex parte Ferguson, 819 So.2d 626, 629 (Ala.2001).

Discussion

DHR and Newton argue, among other things, that Judge Hundley’s contempt order of September 13, 2012, is due to be reversed because it is based on the alleged disobedience of an invalid oral order. Rule 58, Ala. R. Civ. P., which governs the rendition and entry, as well as the form and sufficiency, of orders and judgments, and is applicable to the juvenile courts by virtue of Rule 1(A), Ala. R. Juv. P., states:

“A judge may render an order or judgment: (1) by executing a separate written document, (2) by including the order or judgment in a judicial opinion, (3) by endorsing upon a motion the words ‘granted,’ ‘denied,’ ‘moot,’ or words of similar import, and dating and signing or initialing it, (4) by making or causing to be made a notation in the court records, or (5) by executing and transmitting an electronic document to the electronic-filing system.”

Rule 58(a). There is no provision in Rule 58 for “oral orders.” In Ex parte Department of Mental Health, 446 So.2d 54, 56 (Ala.Civ.App.1984), this court stated:

“Section 12-12-2, [Ala.] Code 1975, provides that the district court is a court of record. Courts of record have been defined as courts whose proceedings are perpetuated in writing. Black’s Law Dictionary 425 (rev. 4th ed. 1968). Additionally, section 12-15-2 provides that the circuit and district courts shall exercise original concurrent juvenile jurisdiction sitting as the juvenile court. Hence, since the district court is a court of record and the juvenile court is part of the district court, the juvenile court must also record its proceedings....
“The verbal order issued by the juvenile court on August 19, 1983 placing physical custody of William in his brother Edward and the guardian ad litem is clearly invalid as are the verbal orders issued by the court between September 9, 1983 and September 26, 1983 relating to the legal custody of William and the requirement that a plan for furnishing certain services to William be given to the court.”

See also Meek v. Meek, 54 So.3d 389, 393 (Ala.Civ.App.2010) (oral orders and judgments are invalid); and Bell v. Bell, 509 So.2d 912, 913-914 (Ala.Civ.App.1987) (same).

DHR, in fact, complied with the court’s oral directive by placing C.C. in an inpatient substance-abuse-treatment facility on August 28, 2012 — a reasonable time after the ISP meeting 11 days earlier on August 17, 2012. Judge Hundley’s oral directive contained no deadline or target date and did not specify that C.C. be placed in the first facility that would accept him. The facts that the facility in which DHR placed C.C. was not the first facility to accept him and that there was an eight-day delay following that first acceptance until C.C. was ultimately placed in a second facility cannot form the basis for a finding of contempt. That is so because the directive upon which the contempt finding was based was invalid — both by virtue of its being oral and by virtue of its lacking “reasonable specificity” as to the terms and conditions upon which any noncompliance would be based. Ex parte Ferguson, 819 So.2d at 629 (quoting United States v. Turner, 812 F.2d 1552, 1563 (11th Cir.1987)). See Nave v. Nave, 942 So.2d 372 (Ala.Civ.App.2005) (reversing a finding of contempt for failure to pay child support because the applicable provision of the parties’ divorce judgment was not reasonably specific with respect to when the father’s child-support obligation terminated).

Based on the foregoing facts and authorities, we reverse Judge Hundley’s order of September 13, 2012, insofar as it found DHR and Newton in criminal contempt, and we remand the cause with instructions to vacate the contempt finding.

REVERSED AND REMANDED.

THOMPSON, P.J., concurs.

MOORE, J., concurs in the result, with writing, which THOMAS, J., joins.

DONALDSON, J., concurs in the result, with writing.

MOORE, Judge,

concurring in the result.

Section 12-15-110(a), Ala.Code 1975, gives juvenile courts the power to punish a person for contempt of court “for disobeying an order of the juvenile court or for obstructing or interfering with the proceedings of the juvenile court or the enforcement of its orders.” Section 12-15-110(a) does not specify that those orders must be in writing in order to form a basis for a finding of contempt. Rule 70A, Ala. R. Civ. P., also does not state that a court can cite a person for contempt based only upon willful disobedience to a written order. Section 12-15-110(a) and Rule 70A seem to be in conflict with Rule 58, Ala. R. Civ. P., which requires all orders to be in writing in order to be effective. However, I see no need to resolve that conflict because I believe the case can be decided on other grounds.

The oral directive of the Madison Juvenile Court in this case specifically required personnel of the Madison County Department of Human Resources (“DHR”) to meet with the other interested parties on August 17, 2012, in order to formulate a plan to obtain inpatient drug treatment for C.C. DHR and its representatives fully complied with that directive by holding an Individualized Service Plan (“ISP”) meeting concerning C.C. and agreeing at that meeting to pursue inpatient drug treatment for C.C. at Bradford Health Services (“Bradford”) or The Bridge. The record contains no evidence indicating that DHR or Tyron Newton, DHR’s assistant director, willfully and contumaciously disobeyed the oral command of the juvenile court as contained in the transcript of the August 16, 2012, hearing.

The juvenile court did not specifically order that DHR place C.C. in any particular facility or advise that such placement must take place within any particular time frame. In fact, at the August 16, 2012, hearing, the juvenile court indicated that it would allow placement only with its prior approval. Cf. In re The Matter of Morris, 491 So.2d 244 (Ala.Civ.App.1986) (holding that separation-of-powers provisions of the Alabama Constitution of 1901 preclude a juvenile court from directing child-welfare agency as to how to exercise its discretion in selecting treatment plan and provider for child in need of supervision in absence of evidence indicating that agency abused or neglected its responsibilities). DHR ultimately arranged for C.C. to obtain inpatient drug treatment at The Bridge beginning on August 28, 2012, 11 days after the ISP meeting. The evidence indicates that C.C. could have been admitted into Bradford on August 21, 2012, seven days earlier, at a cost to DHR of approximately $6,000, but that he would not have received treatment as long or as comprehensive as that provided by The Bridge, which accepts Medicaid. Nothing in the record indicates that the choice of facility or the seven-day delay violated the letter, or even the spirit, of the juvenile court’s oral directives on August 16, 2012.

DHR and Newton did not argue before the juvenile court that the August 16, 2012, order lacked “reasonable specificity,” see Ex parte Ferguson, 819 So.2d 626, 629 (AIa.2001) (holding that person cannot be held in contempt for violating court order that is not reasonably specific so as to inform person of conduct prohibited or required), thus waiving that issue. See S.K. v. Madison Cnty. Dep’t of Human Res., 990 So.2d 887, 895 (Ala.Civ.App.2008) (“This court cannot consider arguments, raised for the first time on appeal. Our review is restricted to the evidence and the arguments considered by the trial court.”). However, the juvenile court entered detailed findings of fact setting out the actions of DHR and Newton that it considered to be contemptuous violations of its August 16, 2012, order. Pursuant to Rule 52(b), Ala. R. Civ. P., DHR and Newton did not have to file a postjudgment motion in order to preserve for appellate review the issue whether sufficient evidence supported the contempt findings. The evidence in the record does not support a finding that DHR or Newton committed any conduct in breach of the oral commands of the juvenile court. Thus, I concur that the judgment is due to be reversed.

THOMAS, J., concurs.

DONALDSON, Judge,

concurring in the result.

I concur to reverse of the judgment finding the Madison County Department of Human Resources (“DHR”) and Tyron Newton to be in criminal contempt. I would make no factual findings regarding whether DHR or Mr. Newton complied with the trial court’s order. I would hold that the judgment of contempt must be reversed because the record does not contain sufficient evidence of a specific order of the trial court requiring C.C. to undergo inpatient substance-abuse treatment and thus cannot not support a finding of contempt.

While I recognize that Rule 58(a), Ala. R. Civ. P., “does not allow for an oral rendition of a judgment or order,” Ex parte Chamblee, 899 So.2d 244, 248 (Ala. 2004), I do not believe that this rule prevents the enforcement of a verbal command or directive of a trial court, or “order,” through contempt proceedings. For example, Rule 70A(a)(2), Ala. R. Civ. P., defines criminal contempt as including “[wjillful disobedience or resistance ... to a court’s lawful ... order, rule, or command,” and civil contempt as including “willful, continuing failure or refusal ... to comply with a court’s lawful ... order, rule, or command.” (Emphasis added.) This is consistent with the general nature of contempt proceedings: “In order for the mandate of a court to be in effect, it need not be a formal written order of the court, and persons who, knowing of oral decisions, violate their provisions, may be held liable for contempt, although the decision has not yet been formulated into an order or writ.” 17 Am.Jur.2d Contempt § 113 (2004) (footnotes omitted). Therefore, I concur in the result.

      . To the extent DHR and Newton seek relief from that part of Judge Hundley’s order commanding DHR to rescind a directive to its caseworkers, instructing them to communicate with the guardian ad litem in the underlying action only through DHR's attorneys, such relief is not available by appeal under Rule 70(A), Ala. R. Civ. P.

      . Judge Hundley had not entered a written treatment order but had stated during a previous hearing that C.C. needed to be "in treatment.”


author: THOMAS, Judge.

text:
    Cille Marie EATON v. Kurtis Weldon EATON.
    2120321.
    Court of Civil Appeals of Alabama.
    July 26, 2013.

      Christopher R. East of Sasser, O’Rear & East, LLC, Montgomery, for appellant.
    Joel Lee Williams, Troy, for appellee.
   THOMAS, Judge.

Cille Marie Eaton (“the mother”) and Kurtis Weldon Eaton (“the father”) were divorced by the Pike Circuit Court on January 4, 2006. The circuit court entered a judgment that incorporated the parties’ settlement agreement and awarded physical custody of the parties’ child (“the child”) to the father. The mother was required to pay monthly child support to the father, and the father was required to pay monthly periodic alimony to the mother.

Although the child’s custody is not at issue in this appeal, it is undisputed that, in July 2010, the father was hospitalized for inpatient psychiatric services and the mother received temporary custody of the child. At some point in 2010 the father resumed custody of the child. On December 7, 2011, the mother filed a motion for contempt and an affidavit in which she asserted that, with the exceptions of three partial payments, the father had failed to pay alimony since May 2010. The father answered the mother’s contempt motion, denying her allegation. He filed a counterclaim in which he alleged that the mother should be held in contempt because she had failed to pay child support. Among other things not pertinent to this appeal, the father also requested the termination of his periodic-alimony obligation.

On July 13, 2012, the mother filed a motion for a final hearing, requesting a hearing date that would “allow time for discovery to take place.” The mother claimed that she had not sought discovery from the father because she had hoped to reach a settlement agreement with the father without a hearing. The circuit court, on July 16, 2012, set a hearing for October 10, 2012. The father made his discovery requests on July 17, 2012. The mother submitted a set of interrogatories to the father on September 11, 2012, which, pursuant to Rule 33(a), Ala. R. Civ. P., made the father’s responses due no later than October 11, 2012 — one day after the scheduled hearing. The mother did not seek the circuit court’s permission to shorten the 30-day period to respond to the interrogatories provided in Rule 33(a).

On October 5, 2012, the mother’s attorney discovered that the mother had been ill; he then filed a motion for a continuance, asserting that he had been unable to consult with the mother although he had “made numerous attempts over the past couple of weeks to contact the [mother] to schedule to meet to prepare for the final hearing.” According to the motion, the mother had been hospitalized “for over a week suffering from severe pneumonia” and was still weak. In the motion the mother’s attorney asserted that he had been unable to prepare the mother to testify, that discovery was pending, and that the parties were likely to reach an amicable settlement agreement before the date of the hearing if a continuance was granted. The father filed an objection to the mother’s motion to continue, arguing that the parties had had ample time to prepare for the trial. The father asserted that a settlement agreement was unlikely and that “discovery should not be an issue” because the discovery requests filed by the mother were not due “until the day after the hearing.” The mother responded, arguing that the father had “made it clear that he ha[d] no intention of providing discovery to the [mother] before the [hearing].” Thus, according to the mother, she would be unable to prove that the father was in arrears on his periodic-alimony obligation. The mother sought an order that, among other things, would require the father to produce the requested discovery by October 8, 2012.

Central to the issues on appeal are the events of October 8, 2012, and October 9, 2012, which we list in chronological order. On October 8, 2012, the mother’s attorney filed a motion to withdraw and requested an order granting a continuance to allow the mother time to retain a new attorney; the mother’s attorney asserted this ground, in addition to his original ground, asserted in the October 5, 2012, motion to continue, in which the mother’s attorney had alleged that there had been a “complete breakdown of communication” between the mother and her attorney. On October 9, 2012, at 12:08 p.m., the circuit court entered an order denying the mother’s motion to continue. At 12:16 p.m. the circuit court entered an order requiring the father to respond to the mother’s discovery requests “on or before October 10, 2012, at 9:00 a.m.” At 12:55 p.m. the circuit court entered an order denying the mother’s attorney’s motion to withdraw; however, without explanation, at 4:00 p.m., the circuit court entered an order granting the mother’s attorney’s motion to withdraw and confirming that the hearing was set for the following day at 9:00 a.m. On October 10, 2012, the mother, acting pro se, appeared, and the circuit court conducted a trial.

The circuit court entered a judgment on December 7, 2012, in which it denied the mother’s motion for contempt and the father’s motion for contempt. However, it terminated the father’s periodic-alimony obligation because it determined that the mother had cohabited "with a member of the opposite sex. The mother filed a notice of appeal on January 17, 2013, seeking our review of three issues: (1) whether the circuit court erred by terminating the father’s periodic-alimony obligation, (2) whether the mother provided evidence demonstrating that the father was in arrears on his periodic-alimony obligation and, therefore, that he should have been held in contempt, and (3) whether the circuit court exceeded its discretion by conducting the trial after it denied the mother’s motion to continue and granted the mother’s attorney’s motion to withdraw. Because our resolution of the third issue raised by the mother is dispositive of this appeal, we address only that issue and pretermit discussion of the mother’s other issues. See Favorite Mkt. Store v. Wal-drop, 924 So.2d 719, 728 (Ala.Civ.App.2005) (stating that this court would pretermit discussion of other issues in light of dispos-itive nature of one issue).

Both the denial of a motion to continue and a grant of a motion to withdraw are matters resting within the sound discretion of the trial court, which we review for an abuse of discretion.

“ ‘ “[Continuances are not favored and ... a trial court’s denial of a motion for continuance will be upset only when a palpable or gross abuse of discretion has been shown.” Johnson Publishing Co. v. Davis, 271 Ala. 474, 496, 124 So.2d 441, 459 (1960). Scullin v. Cameron, 518 So.2d 695, 698 (Ala.1987).”

Copeland v. Samford Univ., 686 So.2d 190, 194 (Ala.1996); see also 17 C.J.S. Continuances § 49 (2011).

“Whether to permit an attorney to withdraw from representing a client is a matter resting within the sound discretion of the trial court. Thomas v. Southeast Alabama Sickle Cell Ass’n, Inc., 581 So.2d 845 (Ala.1991). In Steele v. Gill, 283 Ala. 364, 369, 217 So.2d 75, 80 (1968), this Court, acknowledging that there is ‘no hard and fast rule’ to be applied in determining whether a trial court has abused its discretion, wrote:
“ ‘[Discretion is abused whenever, in its exercise, the court has acted arbitrarily without the employment of its conscientious judgment, or has exceeded the bounds of reason in view of all the circumstances, or has so far ignored recognized rules or principles of law or practice as to [cause] substantial injustice.’ ”

Hale v. Larry Latham Auctioneers, Inc., 607 So .2d 154,155 (Ala.1992).

In Owens v. Owens, 435 So.2d 1316, 1317-18 (Ala.Civ.App.1983), we considered whether a trial court had erred in denying a request for a continuance when the trial court had granted at least three continuances and had notified the parties that it would grant no further requests for a continuance. In Owens, the wife had failed to appear at the trial, claiming that she had had automobile trouble. The trial court noted that the wife had had no subpoenas issued and had made no preparation for the trial. Owens, 435 So.2d at 1318. On appeal, we concluded that the trial court had not abused its discretion when it denied the motion to continue. Id. at 1319.

In Thomas v. Southeast Alabama Sickle Cell Ass’n, 581 So.2d 845, 845 (Ala.1991), our supreme court considered whether a trial court had committed reversible error by “(1) allowing the plaintiffs attorney to withdraw from the prosecution of the case on the day of trial and (2) subsequently refusing to grant the plaintiff a continuance.” In Thomas, the attorney filed a motion to withdraw four days before the trial date. Id. The trial court heard from the attorney and the client on the trial date, and the trial court orally granted the attorney’s motion to withdraw. Id. The trial court then refused to continue the trial because the client had exhibited a pattern of delaying her action by requesting time to retain new counsel. Id. Our supreme court did not find an abuse of the trial court’s discretion based on the trial court’s expressed reason for denying the continuance — that “the court had scheduled the case for trial approximately seven times over a period of two years.” Id. at 846.

In Jacobs v. Jacobs, 636 So.2d 407 (Ala.Civ.App.1993), rev’d, Ex parte Jacobs, 636 So.2d 410 (Ala.1994), this court considered whether a trial court had abused its discretion by denying the wife’s second motion to continue and holding the trial in the absence of the wife and the child, who both lived in Germany. Although a motion to withdraw was not at issue in Jacobs, we relied on Thomas, noted that continuances are not favored, citing Owens, and concluded that the trial court had not exceeded its discretion by denying the motion to continue. Our supreme court reversed the judgment of this court and remanded the cause for a new trial in Ex parte Jacobs because the facts underlying Jacobs were distinguishable from the facts underlying Owens. Ex parte Jacobs, 636 So.2d at 411.

In Ex parte Jacobs, our supreme court noted that the record contained evidence indicating that the wife was unable to afford airfare and that the wife’s attorney was prepared for the trial. In reversing our judgment, our supreme court explained the difference between Owens and Jacobs:

“The record [in Jacobs] does not suggest that the wife was trying to avoid the proceeding. Although whether to grant or deny a continuance is within the discretion of the trial court, that discretion is not without limitations. We conclude that the trial court erred in denying the second motion for a continuance.”

Ex parte Jacobs, 636 So.2d at 411 (emphasis added).

In Wright Therapy Equipment, LLC v. Blue Cross and Blue Shield of Alabama, 991 So.2d 701 (Ala.2008), our supreme court determined that the trial court had abused its discretion by denying a motion for a continuance, requested for the purpose of retaining new counsel when prior counsel had filed a motion to withdraw 33 days before the trial.

“ ‘The right to appear through privately retained counsel in a civil matter is embedded in Article I, § 10, Ala. Constitution, 1901: “That no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or counsel, any civil cause to which he is a party.” It is clear that this “constitutional right to be represented by counsel ... cannot be unduly impinged.” Loreno v. Ross, 222 Ala. 567, 570, 133 So. 251, 253 (1931). A party to a civil action who is not in default is entitled to be represented by counsel during trial. Whaley v. State, 263 Ala. 191, 82 So.2d 187 (1955). The constitutional right to counsel is a substantial right and, therefore, a denial of that right affirmatively implies injury. State Realty Co. v. Ligon, 218 Ala. 541, 119 So. 672 (1929).’
“Ex parte McCain, 804 So.2d 186, 189 (Ala.2001).”

Wright Therapy, 991 So.2d at 709.

To resolve this appeal, we rely on our supreme court’s reasoning in Ex parte Jacobs and in Wright Therapy. Nothing in the record on appeal suggests that the mother was trying to avoid the proceeding. In fact, the mother was the party who filed the motion for a final hearing in the matter. The lapse of time between the setting of the hearing and the hearing date was less than three months, and the stated reason for the second motion for a continuance in this action was that the mother needed time to retain a new attorney because her attorney had requested to withdraw. Although whether to grant or deny a continuance is within the discretion of the trial court, we determine that the circuit court unduly impinged the mother’s right to be represented by counsel by denying the mother’s motion for a continuance at 12:08 p.m. and then granting the mother’s attorney’s motion to withdraw at 4 p.m. on the eve of the hearing. The mother is entitled to a new hearing. We agree with the mother’s statement in her appellate brief that

“the cumulative effect of [the denial of the motion to continue and the grant of the motion to withdraw], particularly given the time frame involved, resulted in the [mother’s] being unrepresented by counsel with no notice that she needed to attempt to retain new counsel, woefully unprepared to proceed on her own, and unable to defend herself or prosecute her claims with any degree of effectiveness.”

Therefore, we reverse the judgment of the circuit court, and we remand the cause with instructions that the circuit court conduct a new trial.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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


author: PER CURIAM. BURKE, Judge, JOINER, Judge,

text:
    Linnie BAILEY v. CITY OF RAGLAND.
    CR-12-0275.
    Court of Criminal Appeals of Alabama.
    July 12, 2013.

      Steven Eversole, Birmingham; and Candace B. Crenshaw, Moody, for appellant.
    Luther Strange, atty. gen., and W. Van Davis, Pell City, for appellee.
   PER CURIAM.

Linnie Bailey was convicted in the Rag-land Municipal Court of one count of harassment, a violation of a municipal ordinance of the City of Ragland (“the City”) incorporating § 13A-11-8, Ala.Code 1975. Bailey appealed to the St. Clair Circuit Court for a trial de novo, where she was again convicted of harassment following a bench trial. The circuit court sentenced Bailey to 30 days in the St. Clair County jail; her sentence was suspended and she was placed on 2 years’ unsupervised probation: She was also ordered to pay- court costs.

The following evidence was presented at the bench trial:

Deborah Kelly, Bailey’s neighbor, testified that Bailey lived at the house adjacent to her property approximately three or four months of the year. Kelly stated that Bailey’s property abuts against her property line. Kelly indicated that she and Bailey have had several disagreements in the past over the property line. Kelly stated that sometime in June 2011, a dispute arose because Bailey’s boat, which was kept at Bailey’s house straddled the property line so that, according to Kelly, the boat almost touched Kelly’s house. Kelly stated that the boat was blocking the fire escape on the rear of her house, so she asked Bailey to move the boat. Kelly stated that Bailey had parked the boat so that the “long nose part end of the trailer part” was protruding over the property line. (R. 85.) Kelly stated that Bailey had the property surveyed about three times and that Kelly then had the property surveyed once after that. On the day of the incident, Kelly stated that she asked Bailey to move her boat and Bailey responded that she would not move the boat. Kelly then told Bailey that if she did not move her boat, she was going to cut off the part of the boat that was on her property. Following the conversation, Kelly turned to go inside and when she opened the door, her dog ran outside. Kelly’s niece was also sitting outside. Kelly then went to get the dog. Kelly claimed that Bailey was outside with the water hose, spraying her yard. Bailey then lifted the water hose and squirted Kelly’s dog, Kelly, and Kelly’s niece. Kelly stated that she was on her own property when Bailey sprayed her with the hose. Kelly filed a police report on July 1, 2011, regarding this incident. Kelly stated that she and Bailey have filed several police reports against each other. Kelly stated that her niece was not available to testify because she had just given birth two days before trial. The City then rested.

Bailey testified that she had purchased the house on the lake in Ragland in 2005. Bailey stated that she had been friends with Kelly, but that there had been a dispute over the property line from the time that she bought the house. Bailey stated that she and her husband surveyed the property when they purchased it, and they have had several surveys done since that time because of the encroachment issues. Bailey stated that she had filed several complaints with the Ragland Police Department against Kelly.

Bailey indicated that she filed a complaint on June 30, 2011; the police report was entered into evidence without objection. Bailey stated that, if an individual is facing the water, Kelly’s house was located to the left of her house and that there were no water spigots on that side of the road by her house. Bailey claimed that she had not returned to her lake house in Ragland because she fears being arrested on a false police report, which she claimed happened every time she went back to her lake house. Bailey stated that Kelly had also previously filed several claims against her. Bailey testified that, because she was initially friends with Kelly, she tried to deal politely with the encroachment issues; however, she would be unable to sell her house because of the existing encroachment issues. Bailey claimed that Kelly placed a table and chair onto Bailey’s property, from which she often made threats. According to Bailey, when Kelly made the present threat regarding her boat, Kelly was on Bailey’s property.

Bailey testified that she did not own a garden hose because she had a gardener who brought a hose with him when he watered her flowers. Bailey stated that she could not water the flowers, because of her health condition. Bailey claimed that she did not spray Kelly with a hose and that her husband was there on the day of the incident. Bailey testified that Kelly did not have a discussion with her, but she shouted and screamed demands that Bailey move her boat or that she would cut it. Bailey stated that Kelly was using an ear device and appeared to be talking to a police officer. Kelly told her that this warning would be her last.

According to Bailey, she had been afraid of Kelly in the past because when she arrived at the lake house late at night, Kelly would meet her at the table with a gun; however, she indicated that she had never filed a report against Kelly for threatening her with a gun because Kelly did not brandish the gun at her, but was attempting to see who was there. Bailey stated that she felt bullied and intimidated because Kelly’s husband was a police officer.

John Dewey Bailey, Jr. (“John”), Bailey’s husband, testified that he was at home with Bailey on June 30, 2011. John testified that Bailey was walking around the property looking at her plants and he was on the upper deck of their two-story house. John stated that he then heard Kelly come over to their property and start yelling at Bailey to get the boat off her property. According to John, Bailey stated that Kelly came over and started acting crazy. John stated that they then telephoned the police and put the incident in a police report. John testified that he saw the whole incident and that Bailey never squirted Kelly with a water hose. John stated that they did not have a water spigot on the side of the house abutting Kell/s property. John stated that a man who lives up the street comes and weeds the yard and, if the flowers or plants got watered, the gardener would have been the one to water the plants. John stated that Bailey does not do yard work because of her health condition. John claimed that they had been dealing with Kelly and the encroachment issues since they built the house. Kelly had threatened him earlier on the same day, telling him that he was not welcome on that street, which he stated had been included in the incident report. John also testified that he had witnessed other incidents that caused him to be afraid of Kelly and her husband. John stated that he rarely goes to their house in Ragland because of the issues with Kelly.

After hearing all the testimony, the circuit court stated:

“Okay, You know, I’m looking at this Incident Report, Defendant’s Exhibit Number 1, dated 6-30-2011, and it says the victim is Linnie Gail Bailey. First sentence in this, signed by Ms. Bailey, says this: ‘On 6 — 3[0]—11 the victim stated that she was outside watering the plants.’ So Ms. Bailey, in the report that you entered into evidence it says you were standing outside watering the plants. I therefore find the defendant guilty. Thirty days suspended for a period of two years. Thank you.”

(R. 47.)

On October 16, 2011, Bailey filed a post-judgment motion to reconsider, arguing, among other things, that “there was insufficient evidence presented at trial” and “that because of the testimony of the two (2) witnesses, the State did not meet its burden of proving [Bailey] guilty beyond a reasonable doubt.” (C. 66.) On October 17, 2011, the circuit court denied Bailey’s motion to reconsider. This appeal follows.

On appeal, Bailey argues that there was insufficient evidence from which a rational fact-finder could have found her guilty of harassment beyond a reasonable doubt. Specifically, Bailey contends that the City failed to introduce the ordinance she was charged with having violated; that the testimony in the case was disputed, inadequate, and did not prove physical contact required by § 13A-ll-8(a)(l)(a), Ala.Code 1975; and that, even assuming Bailey did squirt Kelly, her action was not so provocative as to cause a reasonable person to fear for his safety and was not the type of egregious act contemplated by the statute. The City contends that Bailey failed to preserve the issue regarding the City’s failure to introduce the ordinance that Bailey was charged with violating because, in her posttrial motion to reconsider, she stated only that “‘there was insufficient evidence presented at trial,’ ” and “ ‘that because of the testimony of the (2) witnesses, the State did not meet its burden of proving the Defendant guilty beyond a reasonable doubt.’ ” Thus, the City argues, Bailey did not claim that the City failed to prove a prima facie case, which was the language required by the cases Bailey relied on in her brief. (City’s brief, at 18, citing C. 66.) The City also argues that the evidence presented at trial was sufficient for a rational fact-finder to find Bailey guilty of harassment.

In considering an appeal from a bench trial, the standard for review is well established.

“ “When evidence is presented ore tenus to the trial court, the court’s findings of fact based on that evidence are presumed to be correct,’ Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994); ‘[w]e indulge a presumption that the trial court properly ruled on the weight and probative force of the evidence,’ Bradley v. State, 494 So.2d 750, 761 (Ala.Crim.App.1985), aff'd, 494 So.2d 772 (Ala.1986); and we make “ ‘all the reasonable inferences and credibility choices supportive of the decision of the trial court.’ ” Kennedy v. State, 640 So.2d 22, 26 (Ala. Crim.App.1993), quoting Bradley, 494 So.2d at 761. ‘ “ ‘Where evidence is presented to the trial court ore tenus in a nonjury case, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.’ ” ’ Ex parte Jackson, 886 So.2d [155] at 159 [ (Ala.2004) ], quoting State v. Hill, 690 So.2d 1201, 1208 (Ala.1996), quoting in turn Ex parte Agee, 669 So.2d 102, 104 (Ala.1995).
“However, ‘[t]he ore tenus presumption of correctness applies to findings of fact, not to conclusions of law.’ City of Russellville Zoning Bd. of Adjustment v. Vernon, 842 So.2d 627, 629 (Ala.2002). ‘[T]he ore tenus rule does not extend to cloak a trial judge’s conclusions of law, or incorrect application of law to the facts, with a presumption of correctness.’ Eubanks v. Hale, 752 So.2d 1113, 1144-45 (Ala.1999). ‘ “ ‘[W]hen the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment.’ ” ’ Ex parte Jackson, 886 So.2d at 159, quoting Hill, 690 So.2d at 1203, quoting in turn, Ex parte Agee, 669 So.2d at 104. Thus, we review the trial court’s conclusions of law and its application of law to the facts under the de novo standard of review.”

Washington v. State, 922 So.2d 145, 157-58 (Ala.Crim.App.2005).

In Ex parte Hall, 843 So.2d 746, 747-748 (Ala.2002), the Alabama Supreme Court stated:

“In Ex parte Maxwell, 439 So.2d 715, 716 (Ala.1983), a case involving the City of Mobile’s failure to introduce into evidence the ordinance Maxwell was charged with violating, this Court held:
“ ‘[I]t is well established that in a criminal prosecution for violation of a city ordinance the city must plead and prove the ordinance. And it has been held when the city does not introduce the ordinance into evidence, it has failed to make out its case against the defendant and the trial court has erred in pronouncing the judgment of conviction.’ ”

In the present case, the record indicates that the City failed to introduce the municipal ordinance adopting the applicable state offense and, thus, failed to prove a requisite element of its case. Accordingly, based on the above-mentioned authority, if this issue was properly preserved for appellate review, then the City’s failure to introduce the ordinance requires a reversal of Bailey’s conviction.

It is well settled that “[t]he statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.” Ex parte Frith, 526 So.2d 880, 882 (Ala.1987). Bailey contends that, based on the Alabama Supreme Court’s holdings in Ex parte Maxwell, 439 So.2d 715 (Ala.1983), and Ex parte Hall, her specific objection in her postjudgment motion to reconsider was sufficient to place the trial court on notice of the defect in her case.

In Ex parte Maxwell, the defendant asserted, among other grounds on which he sought to exclude evidence, that the City of Mobile had “failed to prove a prima facie case,” and failed to prove the allegations in the indictment. The Maxwell Court then held that “[t]o preserve the issue for appeal it is necessary for [the] defendant to state his grounds moving to exclude the evidence; however, it is not necessary to draw the trial court’s attention to the particular defect. It is sufficient that the defendant state the ground that the prosecution has failed to make out a prima facie case.” 439 So.2d at 717.

In Ex parte Hall, the defendant filed a postjudgment motion for judgment of acquittal in which-he stated as one of his grounds that “insufficient evidence has been presented to support a finding that the defendant is guilty beyond a reasonable doubt.” 843 So.2d at 749. The Alabama Supreme Court found that “although Hall’s statement ... is not as perfectly phrased as the statement this Court endorsed in Maxwell, it was nevertheless ‘sufficient ... to put the trial court on notice of a defect in the city’s case, and, therefore, sufficient to preserve the issue for review.’ ” Id., citing Hanson v. City of Trussville, 539 So.2d 1082, 1084 (Ala.Crim.App.1988).

In Hanson, defense counsel made several arguments in a motion to exclude and motion for directed verdict, including that “ ‘[t]hey have not proven that my client is guilty of driving while revoked or suspended through the evidence.’ ” He did not specify the city’s failure to introduce into evidence the applicable ordinance. 539 So.2d at 1084. This Court stated that “[w]hile this statement is not exactly the statement that the Maxwell court held was necessary to preserve the issue in that case, we find it is sufficient, in this case, to put the trial court on notice of a defect in the city’s case and, therefore, sufficient to preserve the issue for review.” Id.

In the present case, like the appellants in Hall and Hanson, Bailey filed a postjudgment motion in which she alleged that “there was insufficient evidence presented at trial” and “that because of the testimony of the two (2) witnesses, the State did not meet its burden of proving the Defendant guilty beyond a reasonable doubt.” Thus, like the statement in Hall and Hanson, although Bailey’s statement is not phrased exactly as the objection was stated in Maxwell, it was sufficient to put the trial court on notice of a defect in the City’s case and, thus, was sufficient to preserve the issue for review.

Because the City failed to introduce into evidence the ordinance that adopted § 13A-11-8, Ala.Code 1975, the City failed to prove an essential element of its case. Accordingly, Bailey’s conviction must be reversed, and the cause remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WINDOM, P.J., and WELCH and KELLUM, JJ„ concur. BURKE, J., concurs specially, with opinion. JOINER, J., concurs in the result, with opinion.

BURKE, Judge,

concurring specially.

I write specially to discuss the preservation issue addressed by the majority opinion. I agree that there is no question that the City of Ragland (“the City”) failed to introduce the municipal ordinance adopting the applicable state offense, which is generally required in order to sustain a conviction for a violation of that ordinance. I also acknowledge that this Court’s decision that this issue was properly preserved for our review is consistent with the existing caselaw and that this Court is bound by the decisions of the Alabama Supreme Court. § 12-3-16, Ala.Code 1975.

However, I strongly disagree with the existing caselaw that states that a general objection to the prosecution’s failure to present sufficient evidence to meet its burden of proving the defendant’s guilt is sufficient to place the trial court on notice of the specific defect that the prosecution failed to introduce an ordinance into evidence. I do not believe that Bailey’s general objection in her postjudgment motion to reconsider was sufficient to preserve the issue for appellate review because it did not sufficiently notify the trial court that such a specific defect in the prosecution’s case was being challenged. As a result of the defendant’s failure to make a sufficient and timely objection, the trial court was not given the opportunity to address an issue that it could have easily rectified.

As the majority opinion correctly states in the present case, Bailey’s postjudgment motion to reconsider alleged that “there was insufficient evidence presented at trial” and “that because of the testimony of two (2) witnesses, the State did not meet its burden of proving the Defendant guilty beyond a reasonable doubt.” (C. 66.)

It is well settled law that
“ ‘[rjeview on appeal is restricted to questions and issues properly and timely raised at trial.’ Newsome v. State, 570 So.2d 703, 717 (Ala.Crim.App.1989). ‘An issue raised for the first time on appeal is not subject to appellate review because it has not been properly preserved and presented.’ Pate v. State, 601 So.2d 210, 213 (Ala.Crim.App.1992). ‘“[T]o preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof.” ’ McKinney v. State, 654 So.2d 95, 99 (Ala.Crim.App.1995) (citation omitted) .... ‘The purpose of requiring a specific objection to preserve an issue for appellate review is to put the trial judge on notice of the alleged error, giving an opportunity to correct it before the case is submitted to the jury.’ Ex parte Works, 640 So.2d 1056, 1058 (Ala.1994).”

Ex parte Coulliette, 857 So.2d 793, 794-95 (Ala.2003). This Court has repeatedly held that “[ajrguments not specifically raised before the trial court are waived and are not preserved on appeal.” Lang v. State, 766 So.2d 208, 211 (Ala.Crim.App.1999) (emphasis added) (citing Goodson v. State, 540 So.2d 789, 791 (Ala.Crim.App.1988)). The Alabama Supreme Court has stated that “[mjatters not objected to at trial cannot be considered for the first time on appeal, since review on appeal applies only to rulings by the trial court. Cooper v. State, 331 So.2d 752 (Ala.Crim.App.), cert. denied, 331 So.2d 759 (Ala.1976).” Adams v. State, 585 So.2d 161, 164 (Ala.1991).

However, in Ex parte Maxwell, 439 So.2d 715 (Ala.1983), and the line of cases that follow it, the Alabama Supreme Court has carved out an exception for instances in which the prosecution fails to introduce into evidence at trial a municipal ordinance a defendant is charged with violating. See Ex parte Maxwell, 439 So.2d at 717 (holding that a defendant’s general objection that the City of Mobile failed to make out a prima facie case was sufficient to preserve for appellate review the issue of the city’s failure to prove the ordinance). See also Ex parte Hall, 843 So.2d 746, 749 (Ala.2002). .

To the extent that this issue is held to be encompassed in an objection stating insufficiency of the evidence or failure to prove a prima facie case, Maxwell and its successors cannot be reconciled with the well settled legal principles of preservation that normally apply. This error is comparable to the prosecution’s failure to prove venue, which it is required to do in order to present a prima facie case. See Laster v. State, 747 So.2d 359, 361 (Ala.Crim.App.1999). This Court has repeatedly held that in order to preserve the issue of venue, a specific objection must be made before the verdict is reached. Dutton v. State, 587 So.2d 1046, 1050 (Ala.Crim.App. 1991); see also Crowell v. State, 389 So.2d 545, 548 (Ala.Crim.App.1980) (“The question of venue cannot be raised for the first time on appeal. In his motion to exclude the appellant only raised the sufficiency of the evidence to make out a prima facie case. The question of venue was not a ground of the motion to exclude.”).

Most importantly, the line of cases allowing a sufficiency objection to preserve the failure to prove a municipal ordinance simply is not consistent with the reality of the courtroom. Only a tiny fraction of criminal cases require that a municipal ordinance be proven at trial — those on appeal from a municipal court. Therefore, when a general sufficiency objection is made, it brings the judge’s attention to the elements of the offense and whether the facts adduced at trial meet those elements, not the issue of the entry into evidence of an ordinance. Only a specific objection regarding a failure to prove the ordinance can sufficiently notify the court of such a defect.

Bailey failed to raise the issue of the ordinance either at trial or in her motion to reconsider. Bailey argued generally only that the City had not presented sufficient evidence to prove its case. Any defense attorney who recognizes at trial that a municipal ordinance was not proven will not only object specifically that the ordinance was not introduced, the attorney will rise to his or her feet and do it loudly, because it essentially guarantees that the client will be acquitted on the spot. However, the first time that Bailey specifically raises the issue of the City’s failure to prove the ordinance is in her appeal to this Court.

Maxwell and the line of cases following it are merely creating an escape hatch for attorneys who make a general objection about the sufficiency of the evidence to the trial court, only to later, while preparing the brief on appeal, discover that the ordinance was not proven. This is not fair to the trial court, and it flies in the face of the spirit of our rules of preservation. The entire body of preservation caselaw in Alabama is aimed at requiring litigants to put a trial judge on notice of a mistake, so that the trial judge has the opportunity to rectify the mistake at the trial level.

Because Bailey made only a general objection in her postjudgment motion to reconsider that insufficient evidence was produced at trial and that the City failed to meet its burden of proving that she was guilty beyond a reasonable doubt, I conclude that she failed to properly preserve the issue concerning the City’s failure to introduce the municipal ordinance into evidence for our review. It is my hope that the Supreme Court might take a considered look at modifying the exception espoused in Maxwell, in order to bring this area of the law into conformity with the vast majority of Alabama law regarding issue preservation for purposes of appeal.

JOINER, Judge,

concurring in the result.

I concur in the result. Although the main opinion correctly applies the current law, I share the concerns Judge Burke discusses in his special concurrence regarding the reasoning of Ex parte Maxwell, 439 So.2d 715 (Ala.1983), which is dispositive of this case.

The Alabama Supreme Court’s statement in Ex parte Maxwell that “in a criminal prosecution for violation of a city ordinance the city must plead and prove the ordinance” is supported by a number of cases. See Ex parte Maxwell, 439 So.2d at 716 (citing cases). Its conclusion regarding preservation, however, is not so well supported; indeed, none of the cases cited in Ex parte Maxwell addressed the degree of specificity that is required for a defendant to preserve this issue for review. In Jacobs v. City of Prichard, 46 Ala.App. 497, 243 So.2d 769 (1971), and Cooper v. Town of Valley Head, 212 Ala. 125, 101 So. 874 (1924), there is no discussion of preservation, and in Felder v. City of Huntsville, 42 Ala.App. 488, 168 So.2d 490 (1964), the Alabama Court of Appeals reversed the conviction even though the defendant had stipulated that the ordinances existed and that they could “be introduced in evidence in this case without further proof.” It appears that many of, if not all, the cases cited in Ex parte Maxwell rested on the premise that the failure to “plead and prove the ordinance” is a defect affecting the subject-matter jurisdiction of the circuit court. That premise, however, is no longer valid. See, e.g., Ex parte Seymour, 946 So.2d 536 (Ala.2006); see also Ex parte Bell, 978 So.2d 33, 34-35 (Ala.2007) (recognizing that cases holding that “proof of venue is jurisdictional” are. inconsistent with Ex parte Seymour and have therefore been overruled).

I agree with Judge Burke that a generalized objection that the prosecution has failed to make a prima facie case or that the evidence is insufficient should not preserve for appellate review the specific objection that the prosecution failed to plead and prove the ordinance the defendant is charged with violating. I likewise urge the Alabama Supreme Court to overrule Ex parte Maxwell to the extent it holds that a defendant is not required to specifically object to the failure of the city to plead and prove the ordinance in a criminal prosecution for violation of a city ordinance.


author: PER CURIAM.

text:
    Frank C. JOHNSON, Petitioner, v. The BANK OF NEW YORK MELLON TRUST COMPANY, Respondent. Frank C. Johnson, Petitioner, v. The Bank of New York Mellon Trust Company, Respondent.
    Nos. SC12-840, SC12-842.
    Supreme Court of Florida.
    Jan. 28, 2014.
    Rehearing Denied April 14, 2014.
    Frank C. Johnson, Jr., pro se, Gaines-ville, FL, for Petitioner.
    Clive N. Morgan, Jacksonville, FL, for Respondent.
   PER CURIAM.

Petitioner Frank C. Johnson filed petitions for writs of mandamus in the above-styled cases. On December 18, 2012, this Court entered an order consolidating the cases and dismissing the petitions pursuant to Pettway v. State, 776 So.2d 930, 931 (Fla.2000). In doing so, we expressly retained jurisdiction to pursue possible sanctions against petitioner. Johnson v. Bank of N.Y. Mellon Trust Co., 2012 WL 6653024 (Fla. Dec. 18, 2012) (table). Over the past several years, petitioner has submitted a tremendous number of pro se filings in various courts in different cases, to the point that he is barred or limited in submitting pro se filings in the First District Court of Appeal, see Johnson v. Wilbur, 981 So.2d 479 (Fla. 1st DCA 2008), and the Circuit Court of the Eighth Judicial Circuit, in and for Alachua County, Florida.

Since 2004, petitioner has initiated twenty-one proceedings in this Court. Many of his most recent filings have been related to foreclosure proceedings in the Circuit Court of the Eighth Judicial Circuit, in and for Alachua County, Florida. Petitioner has not obtained relief on the merits in any of the proceedings that have been disposed of in this Court. Petitioner’s cases contain large numbers of individual filings, including motions, notices, and attachments. Many of his filings are handwritten and very difficult to decipher.

Petitioner filed a response to the Court’s show cause order on December 31, 2012, and he also filed many other motions and requests for relief. Upon consideration of the response to the Court’s order, we conclude that he has failed to show cause why he should not be sanctioned. Accordingly, we now exercise the inherent power of this Court to protect itself from abuse of the judicial process and bar Petitioner Johnson from any future pro se filings of any kind related to his foreclosure proceedings. The Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by Frank C. Johnson pertaining to Alachua County circuit court case numbers 01-2004-CA-1039 and 01-2008-CA-5581, unless such filings are signed by a member in good standing of The Florida Bar. Counsel may file on Johnson’s behalf if counsel determines that the proceeding may have merit and can be brought in good faith. Any and all pending motions or requests for relief filed by petitioner in these consolidated cases are denied.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(8), Fla. Const.

      . Johnson v. Wilbur, 895 So.2d 405 (Fla.2005) (table) (mandamus petition denied); Johnson v. Law Offices of Marshall, Watson, P.A., 942 So.2d 412 (Fla.2006) (table) (mandamus petition denied); Johnson v. Mitchell, 935 So.2d 499 (Fla.2006) (table) (review dismissed); Johnson v. The Florida Bar, 937 So.2d 1099 (Fla.2006) (table) (mandamus petition dismissed); Johnson v. Judicial Qualifications Comm’n, 977 So.2d 576 (Fla.2008) (table) (mandamus petition denied); Johnson v. Wilbur, 979 So.2d 219 (Fla.2008) (table) (dismissed for lack of jurisdiction); Johnson v. Wilbur, etc., et al., 979 So.2d 219 (Fla.2008) (table) (dismissed for lack of jurisdiction); Johnson v. Wilbur, 978 So.2d 159 (Fla.2008) (table) (dismissed for lack of jurisdiction);
        Johnson v. Law Offices of Marshall Watson, P.A., 979 So.2d 219 (Fla.2008) (table) (dismissed for lack of jurisdiction); Johnson v. Wilbur, 992 So.2d 820 (Fla.2008) (table) (dismissed for lack of jurisdiction); Johnson v. Wilbur, 982 So.2d 685 (Fla.2008) (table) (dismissed as untimely); Johnson v. Wilbur, 982 So.2d 685 (Fla.2008) (table) (dismissed for lack of jurisdiction); Johnson v. Wilbur, 982 So.2d 684 (Fla.2008) (table) (dismissed as untimely); Johnson v. Wilbur, etc., et at, 982 So.2d 684 (Fla.2008) (table) (dismissed for lack of jurisdiction); Johnson v. Bank of N.Y. Mellon Trust Co., Case No. SC10-1472 (Fla. Sept. 27, 2010) (transferred); Johnson v. Bank of N.Y. Mellon Trust Co., 70 So.3d 587 (Fla.2011) (table) (prohibition petition dismissed); Johnson v. Bank of N.Y. Mellon Trust Co., Case No. SCI 1-1752 (Fla. Oct. 24, 2011) (transferred); Johnson v. Bank of N.Y. Mellon Trust Co., 2012 WL 6653024 (Fla. Dec. 18, 2012) (table) (mandamus petition dismissed); Johnson v. Bank of N.Y. Mellon Trust Co., 2012 WL 6653024 (Fla. Dec. 18, 2012) (table) (mandamus petition dismissed); Johnson v. Bank of N.Y. Mellon Trust Co., Case No. 132 So.3d 1276 (Fla.2013) (mandamus petition dismissed); Johnson v. Bank of N.Y. Mellon Trust Co., Case No. SC13-1690 (mandamus petition pending).

      . In recent years, we have imposed comparable sanctions on other litigants whose pro se filing practices have exhibited their disregard for abusing the scarce judicial resources of this Court. See, e.g., McCutcheon v. State, 117 So.3d 769 (Fla.2013); James v. Tucker, 75 So.3d 231 (Fla.2011); Johnson v. Rundle, 59 So.3d 1080 (Fla.2011); Steele v. State, 14 So.3d 221 (Fla.2009); Pettway v. McNeil, 987 So.2d 20 (Fla.2008).