author: DONALDSON, Judge.

text:
    AUBURN’S GAMEDAY CENTER AT MAGNOLIA CORNER OWNERS ASSOCIATION, INC. v. Edward MURRAY and Sandra Murray. Edward Murray and Sandra Murray v. Auburn’s Gameday Center at Magnolia Corner Owners Association, Inc.
    2110849.
    Court of Civil Appeals of Alabama.
    May 10, 2013.
    Certiorari Denied Aug. 16, 2013 Alabama Supreme Court 1120978.

      Micheál S. Jackson of Jackson, Anderson & Patty, P.C., Montgomery for appellant/cross-appellee Auburn’s Game-day Center at Magnolia Corner Owners Association, Inc.
    Russell C. Balch and Kimberly D. White of Akridge & Balch, P.C., Auburn, for appellees/cross-appellants Edward Murray and Sandra Murray.
   DONALDSON, Judge.

Auburn’s Gameday Center at Magnolia Corner Owners Association, Inc. (“Magnolia Corner OA”), appeals from a judgment of the Lee Circuit Court in favor of Edward Murray and Sandra Murray on a negligence claim asserted by the Murrays arising from damage caused by water intrusion to a condominium unit they own. The Murrays cross-appeal from the judgment of the trial court in favor of Magnolia Corner OA on their other claims alleging breach of contract, fraudulent concealment, and negligence and their claim seeking a declaratory judgment regarding the validity of an amendment to a condominium agreement affecting their unit.

Factual Background and Procedural History

This dispute involves a house that is a unit of Auburn’s Gameday Center at Magnolia Corner (“Magnolia Corner”), a condominium complex located in Auburn. The house was built in 1928, but it was incorporated into Magnolia Corner with the filing of a declaration of condominium (“the declaration”) in October 2000 in the Lee County Probate Court by Gameday Centers Southeastern, LLC (“GCS”), a company that owns and operates condominium complexes in various university towns in the southeast. In addition to the house, Magnolia Corner consists of a traditional, L-shaped condominium building that was constructed in 2000 and is divided into several individual units. Including the house, Magnolia Corner consists of eight total units.

The house contains a basement. An exterior, concrete staircase on the eastern side of the house provides a means of access to the basement. A drain is located in the landing of the staircase, right outside the basement door. Another drain also is positioned in the middle of the interior portion of the basement, and the floor of the basement slopes toward that drain. A patio sits appurtenant to the top of the staircase. Until 2009, the patio consisted of hexagonal-shaped concrete pavers. The patio, stairs, and basement were already constructed and in existence when GCS purchased the house. The record reveals that the basement has a propensity to flood after heavy rainfall. Until 2010, the basement did not have air conditioning, although it contained fans. Testimony indicates that the basement flooded at least once while GCS owned the property-

GCS established and developed Magnolia Corner directly across the street from a separate condominium complex it owned and operated. At the time of the filing of the declaration in 2000 and for several years prior, GCS owned the house and utilized it as an office for the operation of its condominium business. Testimony indicates that the house remained in the same condition from 2000 to 2003, and that GCS made no significant alterations to the house or patio at any point during its ownership of the property. In 2003, shortly after GCS moved its operations to Atlanta, Georgia, GCS placed the house for sale. In September 2003, the Murrays entered into a contract with GCS to purchase the house in an “as is” condition. The sales contract describes the house as a “Suite” and indicates that the “nature of the rights and undertakings of the purchaser in acquiring and owning such Suite are controlled and will be subject to a Declaration of Condominium, Articles of Incorporation of the Condominium Association, Bylaws of the Association, Rules and Regulations of the Association, and a management agreement regarding the operation and management of the condominium.” The Murrays owned two units in the GCS condominium complex across the street from Magnolia Corner. Further, the record establishes that Edward Murray was a passive investor in GCS.

In December 2003, after the Murrays had entered into the contract with GCS to purchase the house but before the closing, Magnolia Corner OA filed an amendment to the declaration (“the amendment”) in the Lee County Probate Court. The amendment specified that Magnolia Corner was divided into two buildings. The amendment identified the L-shaped structure as “Building One” and the house as “Building Two.” The amendment modified section 6.01 of the declaration concerning the ownership interest each unit owner had in Magnolia Corner’s common elements, which also corresponded to each owner’s percentage share of the responsibility for the common expenses incurred by the condominium. The amendment states that the amount of ownership interest was based on the square footage of each individual unit. The amendment noted an increase in the square footage of the house from 1,350 to 1,826.50. Thus, the ownership interest in Magnolia Corner of the owner of the house increased. from 14.7% in the declaration to 19.58% in the amendment. The amendment preserved Section 5.11 of the declaration concerning the definition of a “common element,” which states, in pertinent part, as follows:

“[A]ll portions of the Condominium other than the Suites and will include the common areas and facilities located substantially as shown on the Plans and Plat. Such common areas will include the following:
“A. All of the Real Property.
“B. All improvements and parts of the Real Property which are not a Suite or Private Element.
“E. The mechanical systems and installations providing service to a Building or any Suite, such as electrical power, gas, light, hot and cold water, heating and air conditioning, sanitary and storm sewer facilities and including all lines, pipes, ducts, flues, chutes, conduits, cables, wires and all other apparatus and installations in connection therewith, whether located in the Common Elements or in the Suites, except when situated entirely within a Suite for service only of that Suite.”

Section 8.01 of the declaration, which states that “[Magnolia Corner OA] is responsible for maintenance, repair, and replacement of the common elements,” was also unchanged by the amendment. Paragraph 15 of the amendment modified and designated the areas that were to be considered “limited common elements,” including, as to the house, the following:

“The walkway and steps abutting the Building Two Unit leading from the ground to the basement are Limited Common Elements appurtenant to the Building Two Unit whose use is restricted to the Building Two Unit. The maintenance, repair, upkeep and replacement of the walkway and steps abutting the Building Two Unit leading to the basement shall be the exclusive responsibility of the Owner of the Building Two Unit.”

Concerning the maintenance of the limited common elements, the amendment stated, in pertinent part, that “each Owner is responsible for the replacement, maintenance and repair of the Limited Common Elements, if any, attached to the Unit of said owner as provided for in Paragraph 15 of this Amendment.” The parties do not dispute that the patio was considered a common element of Magnolia Corner.

In January 2004, subsequent to the filing of the amendment, the Murrays closed on the purchase of the house. The Mur-rays claim that they did not receive notice of the amendment until they requested a copy of it from Magnolia Corner OA in 2007. The warranty deed executed by GCS conveying the house to the Murrays, however, referenced both the declaration and the amendment.

In 2005, following a heavy rain, the basement of the house flooded. Sandra Murray discovered approximately two to three gallons of water in the basement. Mrs. Murray stated that she witnessed the water flood the patio, flow down the steps, and brim over into the basement. Mrs. Murray testified that she removed the water using a “shop vac.” She did not notify Magnolia Corner OA of the flooding.

In May 2006, following a heavy rain, Sharon Colley, who managed the Magnolia Corner property, discovered water in the basement. She notified the Murrays of the flood. Colley contacted a vendor, Roto-Rooter, to assist in unclogging the drain located in the landing of the stairwell. A second vendor, Chem-Dry, was retained to extract the water. Chem-Dry’s invoice noted treatment for mold and mildew, but it did not contain any reference to billing for water extraction. The record indicates that Magnolia Corner OA paid the invoices submitted by both vendors. Colley testified that at a Magnolia Corner OA meeting following the flooding she received instructions not to bill the Murrays for the work performed by the vendors pending resolution of the issue concerning whose responsibility it was to pay those bills.

In 2008, Colley again discovered water in the basement following a rainstorm. As before, she notified Sandra Murray and contacted Chem-Dry and Roto-Rooter for assistance in extracting the water and unc-Iogging the stairwell drain. Testimony indicates that Chem-Dry removed 650 gal-Ions of water from the basement but that there was no indication of mold or mildew present. The record reveals that Magnolia Corner OA paid the invoices submitted by the vendors. At the September 2008 Magnolia Corner OA meeting, the owners discussed the flooding of the house basement, including the theory that the rainwater flowed over the stairwell, into the landing, and then into the basement. At that meeting, the owners voted to redesign the patio outside the house to eliminate the possibility that the patio was the source of the flooding. The reconstruction of the patio did not commence until the summer of 2009.

On June 3, 2009, before the work on the patio had begun, Colley again discovered water in the basement following a heavy rainstorm. Colley notified the Murrays, and thereafter she contacted Chem-Dry to extract the water. Chem-Dry removed 360 gallons of water. Colley also contacted Roto-Rooter, who discovered that the drain in the landing of the staircase had been clogged. Colley testified that, after Chem-Dry completed its work, the basement floor was dry. On August 2, 2009, the Murrays visited the house for the first time since the June 3 flood. They discovered that boxes in the basement were still damp, and they noticed a mold and mildew problem. Dr. Willard Blevins of Suncrest Laboratories inspected the interior of the house for mold. Dr. Blevins testified at trial that mold grows at levels of elevated humidity. He indicated that the basement had no air conditioner and no vent allowing conditioned air from the upstairs to flow in. He also stated that the basement had one dehumidifier that may not have been running. Dr. Blevins testified that the existing conditions inside the basement remained conducive to mold amplification and that he had recommended improved humidity control throughout the entire house. Dr. Blevins’s report noted that the window well on the front of the house had a mold problem because it was not sealed or caulked properly. ServPro, a vendor, performed mold remediation, and it invoiced the Murrays for the work. Dr. Blevins sent his invoice to Colley, who in turn sent it to the Murrays. Remediation required the basement to be emptied, the walls to be torn down to the studs, and linoleum to be removed at a cost of $8,573.93. At the September 2009 meeting of Magnolia Corner OA, the condominium unit owners discussed the ServPro invoice. The record indicates that Colley insisted to ServPro and to Dr. Blevins that she had no authority to give them permission to do the work and that she instructed them to contact the Murrays.

In the summer of 2009, the common patio area outside the house was reconstructed at the expense of Magnolia Corner OA. The hexagonal pavers were removed and a solid concrete pour was installed with all four sides sloped to a drain. The drain consisted of a one-foot catch basin with a drain pipe that directed water to the street.

The reconstruction work did not eliminate the flooding problems. In the fall 2009, more water entered the basement after a heavy rain. On August 25, 2011, Sandra Murray discovered water in the basement following a rainstorm. The water had pooled around the basement drain to a size of about a hulahoop. In September 2011, Tropical Storm Lee passed over Auburn. Charlie Stringfellow, the president of Magnolia Corner OA, inspected the patio and basement while it was still raining and found that the patio and the stairs were dry. Stringfellow testified that water pooled in one corner of the landing of the stairwell as if the water was seeping through the wall on the left side of the stairwell. Colley contacted Roto-Rooter. The Roto-Rooter technician removed a plug from the interior basement drain, and the water immediately drained out of the basement. The technician testified at trial that the basement drain pipe had not been clogged. He testified that he had discovered that water was coming into the basement through the wall of the basement closest to Magnolia Avenue, not through the door of the basement leading from the stairwell landing into the basement.

James Smith, a general contractor who has worked in the grading industry for 27 years, testified that he had inspected the house and the patio roughly three weeks before trial. He stated that the drainage box installed in the patio is not large enough to handle the rainwater that collects on the patio and that the water is diverted toward the house due to the slope of the patio.

Magnolia Corner OA received $65,000 from the City of Auburn for condemnation of a portion of the condominium property as a result of the widening and improvement of the roads adjacent to the property. Section 6.07 of the declaration requires that all surplus funds held by Magnolia Corner OA are to be distributed to unit owners according to their assessment percentage. Section 6.07 states as follows:

“6.07 Disposition of Surplus.
“Each Suite shall carry with it a proportionate share of Common Surplus, as the case may be, and the proportionate share of Common Surplus shall be the same ratio as that Owners’ percentage ownership of the Common Elements; or in the alternative, such surplus or any portion thereof may be added to a reserve fund for maintenance, repair, and replacement of the Common Elements, at the sole discretion of the Association.”

At the September 18, 2009, Magnolia Corner OA meeting, the owners voted to place the condemnation funds in reserve for future expenses.

On February 23, 2010, the Murrays sued Magnolia Corner OA in the Lee Circuit Court. The Murrays’ complaint contained counts alleging (1) negligence and gross negligence relating to the water intrusion into the basement; (2) trespass based on the water flow from the patio, down the stairs, and into the basement; (3) strict liability for the water damage; (4) negligence relating to nondisclosure of the existence of the amendment; (5) fraudulent concealment of the amendment; and (6) breach of contract for failing to distribute the surplus funds; the Murrays’ complaint also included a count seeking a declaratory judgment as to the validity of the amendment. Before trial, the Murrays abandoned their strict-liability claim. The trial court held a nonjury trial on the remaining claims on October 10, 2011, and October 19, 2011. On December 30, 2011, the trial court entered a judgment in favor of the Murrays and against Magnolia Corner OA in the amount of $20,728.67 for negligence relating to the water intrusion into the basement. The trial court also initially found in favor of the Murrays in part on their declaratory-judgment claim relating to the disbursement of the $65,000 held in reserve and ordered that the funds be distributed according to the assessment percentages set forth in the amendment. The court found for Magnolia Corner OA on the claims of trespass, negligence relating to nondisclosure of the amendment, fraudulent concealment, and breach of contract. The court further found that the amendment was not void. On January 27, 2012, Magnolia Corner OA filed a motion to alter, amend, or vacate. On April 25, 2012, the trial court vacated a portion of the judgment on the declaratory-judgment claim concerning the distribution of the $65,000 surplus funds to state that Magnolia Corner OA shall distribute and/or hold in reserve the surplus “as was determined by vote taken at the September 18, 2009 annual meeting of [Magnolia Corner OA].” Both Magnolia Corner OA and the Mur-rays filed a timely notice of appeal to this court.

Standard of Review

“ ‘ “When ore tenus evidence is presented, a presumption of correctness exists as to the trial court’s findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. J & M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala.1999); Gaston v. Ames, 514 So.2d 877 (Ala.1987). When the trial court in a nonjury case enters a judgment without making specific findings of fact, the appellate court ‘will assume that the trial judge made those findings necessary to support the judgment.’ Transamerica Commercial Fin. Corp. v. AmSouth Bank, 608 So.2d 375, 378 (Ala.1992). Moreover, ‘[u]nder the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness.’ Transamerica, 608 So.2d at 378. However, when the trial court improperly applies the law to [the] facts, no presumption of correctness exists as to the trial court’s judgment. Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996); Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); Gaston, 514 So.2d at 878; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978). ‘Questions of law are not subject to the ore tenus standard of review.’ Reed v. Board of Trustees for Alabama State Univ., 778 So.2d 791, 793 n. 2 (Ala.2000). A trial court’s conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993). This court reviews the application of law to facts de novo. Allstate, 675 So.2d at 379 (‘[Wjhere the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the [trial] court’s judgment carries no presumption of correctness.’).” ’
“[Farmers Ins. Co. v. Price-Williams Assocs., Inc.,] 873 So.2d [252,] 254-55 [ (Ala.Civ.App.2003) ] (quoting City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App.2002)).”

Kellis v. Estate of Schnatz, 983 So.2d 408, 412 (Ala.Civ.App.2007).

Discussion

I. Magnolia Comer OA’s Appeal — Negligence, Contributory Negligence, and Mitigation of Damages Relating to the Water-Intrusion Issue

“ ‘To establish negligence, the plaintiff must prove: (1) a duty to a foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4) damage or injury.’” Martin v. Hodges Chapel, LLC, 89 So.3d 756, 762-763 (Ala.Civ.App.2011) (quoting Martin v. Arnold, 643 So.2d 564, 567 (Ala.1994), citing in turn Albert v. Hsu, 602 So.2d 895, 897 (Ala.1992)).

On appeal, Magnolia Corner OA fist contends that, in finding that it was liable to the Murrays for the intrusion of the water into the Murrays’ basement, the trial court incorrectly determined the legal duty that it owed to the Murrays. Magnolia Corner OA asserts that its only legal duty was to refrain from channeling rainwater runoff onto the Murrays’ property. In support of this argument, Magnolia Corner OA cites eases holding that an action for damages resulting from surface-water flow is sustainable only when an upper landowner has channeled water onto the property of a lower landowner. In Easterling v. Awtrey Building Corp., 770 So.2d 606 (Ala.Civ.App.1999), this court held:

“Since it decided W.T. Ratliff[ Co. v. Henley, 405 So.2d 141 (Ala.1981) ], which involved the deposit of sand and gravel upon adjacent land, the Alabama Supreme Court has held that the channeling of surface water onto a lower proprietor’s land will support an indirect trespass cause of action against the party responsible for the channeling. In Johnson v. Washington, 474 So.2d 651 (Ala.1985), the plaintiffs alleged that after the defendant had developed his adjoining property, they had begun to experience flooding and damage to their home, along with surface-water runoff and red dirt coming onto their land. On appeal from an adverse judgment, the defendant contended that the trial court erred in instructing the jury on the law of indirect trespass as stated in W.T. Ratliff. However, the Supreme Court concluded that the trial court’s instruction concerning indirect trespass was not erroneous, noting that ‘the evidence indicates that surface water, red dirt, sand, and other debris entered onto the plaintiffs’ land.’ 474 So.2d at 653 (emphasis added). Johnson thus recognizes that the deposit of surface water and debris upon land as a result of the change of the natural topography of adjacent land will give rise to an indirect-trespass claim against the owner of the adjoining land. See also Fisher v. Space of Pensacola, Inc., 483 So.2d 392, 395 (Ala.1986) (stating that a trespass action can be maintained in a proper case involving direct diversion of surface water, but declining to apply rule because the plaintiffs trespass claim was voluntarily dismissed before trial).”

770 So.2d at 609-610. We note that East-erling and the cases cited therein involved trespass rather than negligence claims; moreover, this case is distinguishable from the standard water-runoff cases because Magnolia Corner is a common-interest community. The responsibilities and duties of Magnolia Corner OA are set forth in the declaration and the amendment. The declaration and the amendment make it clear that Magnolia Corner is governed pursuant to the Alabama Uniform Condominium Act of 1991 (“the Act”) codified at Ala.Code 1975, § 35-8A-101 et seq. Based on the facts of this case, Magnolia Corner OA owed a duty, both under the Act and under the declaration, to maintain the common elements, including the patio, to prevent surface water from damaging the unit owners’ property. Section 35-8A-307(a), Ala.Code 1975, states:

“Except to the extent provided by the declaration, subsection (b), or section 35-8A-313(h), [AIa.Code 1975,] the association is responsible for maintenance, repair, and replacement of the common elements, and each unit owner is responsible for maintenance, repair, and replacement of his unit. Each unit owner shall afford to the association and the other unit owners, and to their agents or employees, access through his unit reasonably necessary for those purposes. If damage is inflicted on the common elements, or on any unit through which access is taken, the unit owner responsible for the damage, or the association if it is responsible, is liable for the prompt repair thereof.”

The declaration and the amendment do not invalidate or alter this duty. Section 8.01 of the declaration, in fact, reaffirms Magnolia Corner OA’s duty to maintain the common elements. Section 8.01 states that “[t]he association is responsible for maintenance and repair, and replacements of the common elements.” Further, Section 5.11 of the declaration suggests that Magnolia Corner OA also has the duty to maintain the drain at the bottom of the stairwell, because “the mechanical systems and installations providing service to a Building or any Suite, such as ... sanitary and storm sewer facilities and including all lines, pipes, ducts.... ” are considered common elements. Thus, pursuant to the Act and the declaration, Magnolia Corner OA owed a duty to maintain the patio as a common element to prevent water from flowing from the patio onto the Murrays’ property.

Magnolia Corner OA next asserts that the trial court erred by finding that the evidence supported a judgment against it for negligence relating to water intrusion. Specifically, Magnolia Corner OA contends that the source of the flooding of the basement is a disputed fact and that there is little evidence to support a finding that the patio was the source of the flooding. In its judgment, the trial court did not make any findings of fact. We must assume that the trial judge made those findings necessary to support the judgment. Transamerica, 608 So.2d at 378. The record reveals sufficient evidence from which the trial court could have properly determined that the patio was the source of the flooding. Sandra Murray testified that she witnessed water flowing down the stairwell during a heavy rain in 2005. She further testified that “water tracks” were present on the stairs after the heavy rains that precipitated the flooding in the basement. Also, Magnolia Corner OA undertook action to reconstruct the patio to eliminate the patio as a source of the flooding. Although the flooding continued after the reconstruction of the patio, the trial court could have reasonably been convinced by the testimony of the Murrays’ expert witness that the reconstructed patio continued to direct water toward the stairwell and that the newly installed drain was not large enough to catch the water flow during heavy rains. Although Magnolia Corner OA presented testimony concerning other possible sources of the flooding, the trial court was in the unique position to directly observe the witnesses and to assess their demeanor and credibility. See Ex parte Fann, 810 So.2d 631, 633 (Ala.2001). There is sufficient evidence in the record to support the trial court’s finding of negligence relating to the water intrusion.

Magnolia Corner OA next asserts that the trial court erred in not finding the Murrays to be contributorily negligent by failing to properly maintain the stairwell drain and the basement drain.

“It has been said a number of times that the three elements essential to contributory negligence are that the party charged with contributory negligence (1) had knowledge of the condition or failure (2) appreciated the danger and (3) failed to exercise reasonable care in the premises, but with such knowledge and appreciation, put himself into the way of danger. Baptist Medical Center v. Byars, 289 Ala. 713, 271 So.2d 847 [(1972)]; Kingsberry Homes Corp. v. Ralston, 285 Ala. 600, 235 So.2d 371 [(1970)]; F.W. Woolworth Company v. Bradbury, 273 Ala. 392, 140 So.2d 824 [(1962)]; Foster & Creighton Co. v. St. Paul Mercury Indemnity Co., 264 Ala. 581, 88 So.2d 825 [(1956)]; Mackintosh Co. v. Wells, 218 Ala. 260, 118 So. 276 [(1928)].
“Some of the cases cited supra involved assumption of risk. In others, there was a special duty of care imposed upon the owner of the premises. However, it has long been recognized that contributory negligence may also be predicated upon the failure to appreciate the danger when there is a reasonable opportunity to do so under the circumstances.”

Alabama Power Co. v. Mosley, 294 Ala. 394, 398, 318 So.2d 260, 263 (1975). Magnolia Corner OA contends that the Mur-rays appreciated or should have appreciated the danger in not maintaining the drain at the bottom of the stairwell outside their basement door and in not unplugging the drain in the middle of the basement floor. As stated, supra, paragraph E. of § 5.11 of the declaration includes the following within the definition of common elements:

“The mechanical systems and installations providing service to a Building, or to any Suite, such as electrical power, gas, light, hot and cold water, heating and air conditioning, sanitary and storm sewer facilities, and including all lines pipes, ducts, flues, chutes, conduits, cables, wires and all other apparatus and installations in connection therewith, whether located in the Common Elements or in the Suites, except when situated entirely within a Suite for service only of that Suite.”

Pursuant to paragraph 15 of the amendment, the stairs are considered a limited common element “whose use is restricted to the Building Two Unit.” The fact that the stairs are a limited common element under the amendment does not negate the fact that the drain at the bottom of the stairwell is classified as a common element pursuant to § 5.11 of the declaration. Magnolia Corner OA had knowledge of both the clogging of the stairwell drain and the improper draining of the patio before the June 2009 rain event. Under the declaration and the amendment, the Murrays had no duty to maintain the drain in the stairwell. Concerning the interior basement drain, the trial court could have concluded that the fact that it was plugged was irrelevant because, it could have properly concluded, had this drain been operational, water still would have entered the basement and damaged the property. The issue of the Murrays’ contributory negligence was a disputed issue of fact, and therefore the ore tenus rule applies. Sufficient evidence exists in the record to support the trial court’s determination that the Murrays were not contributorily negligent. We will not disturb this finding on appeal.

Magnolia Corner OA further argues that the Murrays failed to mitigate their damages.

“[T]he law imposes upon all parties who seek recompense from another a duty to mitigate their losses or damages. Aetna Life Insurance Co. v. Lavoie, 470 So.2d 1060 (Ala.1984). It is equally well established that a plaintiff can recover only for that damage or loss that would have been sustained if the plaintiff had exercised such care as a reasonably prudent person would have exercised under like circumstances to mitigate the damage or loss (Equilease Corp. v. McKinney, 52 Ala.App. 109, 289 So.2d 809 (1974)); and whether the plaintiff has sufficiently mitigated the damages, generally speaking, is a question of fact. Carnival Cruise Lines, Inc. v. Goodin, 535 So.2d 98 (Ala.1988).
“Stated otherwise, the injured or damaged party is legally bound to lessen the recoverable damages so far as is practicable by the use of ordinary care and diligence. Thus, the rule of mitigation requires a party suffering injury, damage, or loss to take reasonable steps to reduce it.
“The rule of mitigation finds its application only in the context of evidence from which the factfinder may reasonably infer that the claimant rejected a reasonable course of action that an ordinarily prudent person would have taken under similar circumstances to minimize the injury, damage, or loss. In other words, the party seeking to invoke the rule must meet a threshold ‘sufficiency of the evidence’ test, lest the issue be resolved against the movant as a matter of law. The rule does not apply where the injured party, in an effort to minimize the loss, would be required to incur considerable personal risk or expense with but a slight chance of an alternative recovery. Id.”

Avco Fin. Servs., Inc. v. Ramsey, 631 So.2d 940, 942-43 (Ala.1994). The trial court made no findings of fact on the issue of mitigation of damages. Magnolia Corner OA contends that, after the June 2009 flood, the Murrays failed to come to Auburn in a reasonably timely fashion to inspect the house. Magnolia Corner OA argues that, because the Murrays did not come to inspect the house until August and did not send someone else to inspect the house earlier, mold and mildew accumulated in the house. Based on the evidence, we find this argument to be unpersuasive. The trial court had before it the following e-mail, which was sent by Stringfellow to the Murrays on June 7, 2009:

“Subsequently, we need to address the issue of the flooding you have just experienced. This requires further assessment and evaluation of the entire issue and will require the Involvement of all home owners.
“After talking with Sharon [Colley], we will keep you posted on what is being done. The most urgent is getting water pumped out of your house and things dried out which Sharon may already have under control. Then the priority is to get the patio reconstructed. We, as well as Sharon, will keep you posted.”

The trial court could have determined that the Murrays reasonably relied on Magnolia Corner OA and its representatives to handle the water extraction. Further, the trial court heard testimony from Sandra Murray indicating that the Murrays were unable to visit the house immediately after the flood^because they were busy rebuilding their primary residence that had been destroyed by a tornado in another county.

The negligence count related to water intrusion Was submitted to the trial court for a resolution based on disputed facts. Based on the evidence presented, there was sufficient evidence to support the trial court’s determinations that Magnolia Corner OA breached a duty owed to the Mur-rays, and that the Murrays neither were eontributorily negligent nor failed to mitigate their damage. Therefore, we affirm the trial court’s judgment on the count of negligence relating to the issue of the water intrusion.

II. The Murray’s Cross-Appeal

A. Negligence and Fraudulent Concealment Relating to the Amendment

The Murrays contend on cross-appeal that Magnolia Corner OA was obligated to disclose the existence of the amendment to the Murrays at the time they purchased the house and that Magnolia Corner OA fraudulently concealed the amendment from the Murrays and negligently failed to disclose the existence of the amendment:

“To establish a prima facie case of fraudulent concealment of a material fact, a plaintiff must show (1) that the defendant had a duty to disclose a material fact, (2) that the defendant concealed or failed to disclose a material fact, (3) that the defendant’s concealment or failure to disclose the material fact induced the plaintiff to act or to refrain from acting, and (4) that the plaintiff suffered actual damage as a proximate result. Soniat v. Johnson-Rast & Hays, 626 So.2d 1256 (Ala.1993); see Cornelius v. Austin, 542 So.2d 1220, 1223 (Ala.1989).
“Mere silence is not fraudulent in the absence of a duty to disclose. A duty to disclose may arise from the particular circumstances of the case, from a confidential relationship, or from a request for information. Hardy v. Blue Cross & Blue Shield of Alabama, 585 So.2d 29, 32 (Ala.1991); King v. National Foundation Life Ins. Co., 541 So.2d 502 (Ala.1989). One may also recover for fraudulent concealment by showing active concealment of a material fact with an intent to deceive or mislead. § 6-5-103, Alabama Code 1975; Soniat v. Johnson-Rast & Hays; Cornelius v. Austin; Harrell v. Dodson, 398 So.2d 272, 276 (Ala.1981).”

Dodd v. Nelda Stephenson Chevrolet, Inc., 626 So.2d 1288, 1293-94 (Ala.1993).

“The question whether a party had a duty to disclose is a question of law to be determined by the trial court.” Barnett v. Funding Plus of America, Inc., 740 So.2d 1069, 1074 (Ala.1999). Our supreme court has established the factors the trial court must consider and apply in determining whether a duty to disclose exists: “(1) the relationship of the parties; (2) the relative knowledge of the parties; (3) the value of the particular fact; (4) the plaintiffs’ opportunity to ascertain the fact; (5) the customs of the trade; and (6) other relevant circumstances.” State Farm, Fire & Casualty Co. v. Owen, 729 So.2d 834, 842—13 (Ala.1998); see also Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665 (Ala.2001).

“A duty to communicate can arise from a confidential relationship between the plaintiff and the defendant, from the particular circumstances of the case, or from a request for information, but mere silence in the absence of duty to disclose is not fraudulent....
“This Court has stated that whether one has a duty to speak depends upon a fiduciary, or other, relationship of the parties, the value of the particular fact, the relative knowledge of the parties, and other circumstances of the case.... When the parties to a transaction deal with each other at arm’s length, with no confidential relationship, no obligation to disclose information arises when the information is not requested.”

Mason v. Chrysler Corp., 653 So.2d 951, 954-55 (Ala.1995).

The Murrays assert that, although it was not a party to the contract for the sale of the house, Magnolia Corner OA had an obligation to communicate the existence of the amendment, a material fact, to the Murrays. The Murrays cite Miller v. Miller’s Landing, L.L.C., 29 So.3d 228 (Ala.Civ.App.2009), in support of this contention. In that case, this court stated that a common-interest community has a duty “ to act reasonably in the exercise of its discretionary powers, including rule-making, enforcement, and design-control powers.’ The duty to act reasonably also applies to the power to amend the declaration, or governing documents, of a common-interest community.” 29 So.3d at 236 (quoting § 6.13 and citing § 6.10 (Comment f) Restatement (Third) of Property: Servitudes (2000)). We note that, until the sale of the house was final, the Murrays were not members of Magnolia Corner OA. Thus, we find Miller to be inapplicable to this case.

We conclude that, based on the evidence before it, the trial court could have correctly determined that, under the circumstances of this case, Magnolia Corner OA did not have a duty to disclose the existence of the amendment. First, Magnolia Corner OA did not participate in the sale of the house to the Murrays; rather, GCS, the developer of the property, sold the house directly to the Murrays. See Gaulden v. Mitchell, 849 So.2d 192 (Ala. Civ.App.2002) (noting that the party failing to disclose information was not the seller). Second, the sales agreement entered into between GCS and the Murrays refers to the declaration, and the general warranty deed executed by GCS specifically references the existence of the amendment and includes information concerning the precise location of the amendment within the probate court records. The Murrays were placed on notice of the existence of the publicly recorded declaration and amendment. Further, the Murrays were familiar with and had experience in the workings of condominiums; the record establishes that the Murrays owned two units of another condominium complex in Auburn and that Edward Murray was a passive investor in GCS, a condominium business. We cannot, based on the facts of this case, hold that the judgment in favor of Magnolia Corner OA on the Murrays’ negligence and fraudulent-concealment claims relating to the existence of the amendment was erroneous.

B. Declaratory Judgment Concerning the Amendment

The Murrays contend on cross-appeal that the trial court erred by failing to find that the amendment was void ab initio. In this portion of their cross-appeal, the Mur-rays argue that the amendment is invalid because it imposes upon them, as owners of Building Two, an assessment for the cost of exterior repairs to Building One. Section 35-8A-315(c)(2), Ala.Code 1975, states, in pertinent part, as follows:

“(c) To the extent required by the declaration:
“(2) Any common expense or portion thereof benefiting fewer than all of the units must be assessed exclusively against the units benefited.”

Per the amendment, the Murrays’ portion of assessments for common expenses is 19.58%. The Murrays contend that they did not benefit from the repairs to Building One and, thus, should not be ordered to pay a share of that assessment. The Murrays further assert that they are due reimbursement from Magnolia Corner OA for any assessment they may have paid where only the owners in Building One were benefited.

Section 35-8A-217(b), Ala.Code 1975, establishes a time limitation on a challenge to the validity of an amendment to a declaration of condominium. That section states that “[n]o action to challenge the validity of an amendment adopted by the association pursuant to this section may be brought more than one year after the amendment is recorded.” The record reveals that the amendment was recorded in the Lee County Probate Court in December 2003. The Murrays filed this action over six years later, in February 2010, well beyond the one-year limitation period. The Murrays contend that because Magnolia Corner OA fraudulently concealed the existence of the amendment from the Mur-rays, the one-year statutory period should be tolled pursuant to § 6-2-3, Ala.Code 1975. That statute states:

“In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have two years within which to prosecute his action.”

As discussed, supra, we hold that Magnolia Corner OA did not fraudulently conceal the existence of the amendment. Thus, we hold that the Murrays’ challenge to the amendment is time-barred, and we affirm the trial court’s determination that the amendment is valid.

C. Weight of Voting & Breach of the Declaration

The Murrays raise two additional arguments in their cross-appeal. They contend (1) that the trial court erred in failing to find that the vote of each unit owner is to be weighted according to the assessment percentage of each individual unit and (2) that the trial court erred in failing to find that Magnolia Corner OA breached the declaration by failing to distribute surplus funds it held. The Mur-rays, however, have failed to cite any authority to substantiate these arguments on appeal to support their claims, including their claim for breach of contract. This precludes our consideration of the arguments. It is well settled that “[t]his court will address only those issues properly presented and for which supporting authority has been cited.” Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996).

“Rule 28(a)(10)[, Ala. R.App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If they do not, the arguments are waived. Moore v. Prudential Residential Servs. Ltd. P’ship, 849 So.2d 914, 923 (Ala.2002); Arrington v. Mathis, 929 So.2d 468, 470 n. 2 (Ala.Civ.App.2005); Hamm v. State, 913 So.2d 460, 486 (Ala.Crim.App.2002). ‘This is so, because “ ‘it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.’ ” ’ Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala.2007) (quoting Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003), quoting in turn Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)).”

White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008). Thus, we affirm the trial court’s judgment on these matters.

Conclusion

For the reasons set forth above, the judgment of the trial court is due to be affirmed.

APPEAL — AFFIRMED.

CROSS-APPEAL — AFFIRMED

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


source: Caselaw Access Project

author: BURKE, Judge.

license: Public Domain

text:
    Anthony Mitchell MONEY v. STATE of Alabama.
    CR-11-0468.
    Court of Criminal Appeals of Alabama.
    Sept. 28, 2012.
    Rehearing Denied Dec. 14, 2012.
    Certiorari Denied Aug. 16, 2013 Alabama Supreme Court 1120350.

      Dustin Judd Fowler, Dothan, for appellant.
    . Luther Strange, atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.
   BURKE, Judge.

Anthony Mitchell Money was convicted of criminally negligent homicide, a violation of § 13A-6-4, Ala.Code 1975, and was sentenced to one year of hard labor in the Henry County jail. He was also ordered to pay a $750 fine, a $100 assessment to the crime victims compensation fund, court costs, and restitution. This appeal follows.

A detailed recitation of the facts is unnecessary to the disposition of this appeal. However, we note that this case arose out of an incident that occurred on or about October 17, 2006, when Money and his girlfriend, Mary Curry, got into an argument while riding in Money’s vehicle. The altercation became physical and, at some point, Money pulled over, and he and Curry got out of the vehicle. A few moments later, Curry, who was lying in the middle of the road, was struck and killed by an oncoming vehicle. There were no eyewitnesses to the events leading up to the point where Curry was killed. Accordingly, there was a dispute as to why Curry was lying in the middle of the road. The State claimed that Money rendered Curry dazed or unconscious and then failed to remove her from the path of oncoming traffic. Money claimed that Curry lay down in the road of her own volition and refused to move despite his attempts to remove her.

Money was indicted for reckless manslaughter, a Class B felony. See § 13A-6-3, Ala.Code 1975. However, he was convicted of the lesser-included offense of criminally negligent homicide, a Class A misdemeanor. On appeal, Money points out that the incident giving rise to his prosecution occurred on or about October 17, 2006, and that he was not indicted until June 8, 2009. He also correctly states that the statute of limitations for a misdemeanor offense is 12 months. See § 15-3-2, Ala.Code 1975 (“Unless otherwise provided, the prosecution of all misdemeanors before a circuit or district court must be commenced within 12 months after the commission of the offense.”) Therefore, he says, the trial court did not have jurisdiction to try and convict him for criminally negligent homicide because the prosecution did not commence within the applicable statute of limitations.

Money first raised this issue in his post-trial “Instanter Motion to Dismiss.” (C. 70-72.) In denying that motion, the trial court found that “it is the charged offense that is looked at to determine if the applicable statute of limitations had run, not the lesser included offense that the Defendant was convicted of’ (C. 75), citing Rock v. State, 558 So.2d 967 (Ala.Crim.App.1989). Accordingly, the trial court held that because Money was indicted for a felony, for which the statute of limitations is three years, see § 15-3-1, Ala.Code 1975, the prosecution was commenced within the applicable time period. On appeal, the State also cited Rock and argued that it is the charged offense that is used in order to determine the applicable statute of limitations.

In his brief on appeal, Money cites Hall v. State, 497 So.2d 1145 (Ala.Crim.App.1986), in which this Court addressed a similar situation. In Hall, the appellant was indicted for first-degree sexual abuse but was convicted of a lesser-included offense that, at the time, was a misdemean- or. This Court held:

“A person cannot be convicted of a lesser offense, upon prosecution for a greater offense, which includes the lesser offense, commenced after the statute of limitations has run on the lesser offense. See generally 47 A.L.R.2d 887.
“ ‘The rule providing that every lesser included offense is included in the one charged in the indictment applies and has reference only to every actionable offense and not the offenses which upon the face of the proceedings are barred by the statute of limitations, the operation of which rendered the court without jurisdiction to try and determine the so-called lesser offenses.’ ”

Hall, 497 So.2d, at 1148, quoting Spears v. State, 26 Ala.App. 376, 160 So. 727 (1935). Therefore, according to Money, the trial court did not have jurisdiction to try and convict him for the misdemeanor offense of criminally negligent homicide, even though he was indicted for the felony offense of reckless manslaughter.

Thus, it appears that Rock conflicts with Hall and Spears. We must determine whether a person who is properly indicted for a felony may be convicted of a lesser-included misdemeanor if the prosecution for the felony was not commenced until after the statute of limitations applicable to the misdemeanor has expired. Cases involving issues of law and the application of the law to undisputed facts are reviewed by this Court de novo. See Ex parte Hamilton, 970 So.2d 285, 287 (Ala.2006).

A close reading of Rock v. State reveals that the portion of that opinion the trial court relied on was dicta and was unnecessary to the holding of the case. In Rock, the appellant was indicted for first-degree sexual abuse but was convicted of the lesser-included offense of second-degree sexual abuse, a Class A misdemeanor. However, he was not indicted within 12 months of the charged conduct. On appeal, the appellant argued that the statute of limitations had expired for his misdemeanor charge. In affirming the conviction, this Court stated that “[i]t is the charged offense that we look at to determine if the statute of limitations had run, not the lesser included offense that appellant was convicted of.” Rock, 558 So.2d at 970. However, no prior cases were cited in support of that proposition, and the Court went on to note that the statute of limitations had not expired for the appellant’s misdemean- or charge because the victim was less than 16 years of age. Section 15-3-5(a)(4), Ala. Code 1975, provides that “[tjhere is no limitation of time within which a prosecution must be commenced for ... [a]ny sex offense involving a victim under 16 years of age, regardless of whether it involves force or serious physical injury or death.... ” Accordingly, the language in Rock stating that a court is to look to the charged offense to determine the applicable statute of limitations was unnecessary to the decision in the case because there was no statute of limitations on the offense underlying the appellant’s misdemeanor charge.

However, the facts of Hall are more similar to the present case. As noted, the appellant in Hall was indicted for first-degree sexual abuse but was convicted of the lesser-included offense of attempted first-degree sexual abuse. This Court held that

“the 12 month statute of limitations had run on the offense of attempted sexual abuse in the first degree because the commission of the acts constituting this offense occurred during the summer of 1983.[] A person cannot be convicted of a lesser offense, upon prosecution for a greater offense, which includes the lesser offense, commenced after the statute of limitations has run on the lesser offense.”

Id. at 1148.

The Hall decision also cited Spears v. State, 26 Ala.App. 376, 160 So. 727 (1935). In Spears, the appellant was indicted for “assault with intent to murder,” a felony, but was convicted of “assault and battery, a misdemeanor.” Id. at 728. In similarity to this case and to Hall, the appellant was not indicted until almost two years after the relevant conduct occurred. The Court of Appeals of Alabama reversed the conviction for the lesser-included misdemean- or offense and held:

“By the verdict of the jury, supra, the accused was acquitted of the offense of assault with intent to murder; and, as it affirmatively appears, without dispute, that the statute of limitations had run as to the other offenses ordinarily included under the charge in the indictment, the charge of assault with intent to murder was the only actionable offense in this indictment. Under this status the court was wrong in charging the jury to the effect that this indictment included also the charges of assault and battery and assault, and that the jury would be warranted in finding him guilty of assault and battery, or an assault. The rule providing that every lesser offense is included in the one charged in the indictment applies and has reference only to every actionable offense and not the offenses which upon the face of the proceedings are barred by the statute of limitations, the operation of which rendered the court without jurisdiction to try and determine the so-called lesser offenses. In other words, the misdemeanor of which the defendant was convicted was not embraced in the major charge of assault with intent to murder. Nor could it have been as the running of the statute of limitations had rendered the charge unactionable. The time when an offense was committed need not be alleged in the indictment, but it is essential it must be proved on the trial that it was committed -within the period, which is prescribed as a bar against the prosecution for it. If this is not done, the prosecution fails. Why? Because, when the period of limitation elapsed, the act ceased to be a punishable offense. No court was then authorized to pronounce sentence against the person who committed it.”

Spears, 160 So. at 728.

Thus, a trial court does not have the statutory authority to adjudicate a misdemeanor offense unless the defendant is indicted, bound over, or a warrant for his or her arrest has been issued within 12 months of the commission of the offense. Hall and Spears embrace this principle. Accordingly, to the extent that the language in Rock is contrary to Hall and Spears on this issue, it is hereby disavowed.

Section 12-11-30(2), Ala.Code 1975, provides that a “circuit court shall have exclusive original jurisdiction of all felony prosecutions and of misdemeanor or ordinance violations which are lesser included offenses within a felony charge or which arise from the same incident as a felony charge.” However, § 15-3-2, Ala.Code 1975, provides that “the prosecution of all misdemeanors before a circuit or district court must be commenced within 12 months after the commission of the offense.” Furthermore, § 15-3-7, Ala.Code 1975, provides that “[a] prosecution maybe commenced within the meaning of [§ 15-3-2] by finding an indictment, the issuing of a warrant or by binding over the offender.”

It is undisputed that the conduct giving rise to Money’s prosecution occurred on or about October 17, 2006, and that Money was not indicted until June 8, 2009. Additionally, we note that a warrant for his arrest was not issued until June 9, 2009. Therefore, the prosecution of Money’s case did not commence until June 8, 2009, more than two years after the charged conduct occurred. Based on those facts, as well as the cases and statutes discussed above, we conclude that the charge of criminally negligent homicide was not embraced in the greater charge of reckless manslaughter. Accordingly, the trial court did not have the authority to convict Money for criminally negligent homicide. To hold otherwise would be contrary to the Alabama Code.

In its order, the trial court also noted that, while Money objected to the jury charge on criminally negligent homicide, he did not state specific grounds for his objection. (C. 74.) Ordinarily, “ ‘[r]e-view 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). However, this Court has held that claims such as the one raised in the present case can be raised on appeal.

“Although Alabama law is not entirely clear on the question whether a court presiding over a prosecution barred by the statute of limitations is without ‘jurisdiction,’ a synthesis of the Alabama cases indicates that a statute of limitations defect must be considered ‘jurisdictional,’ in the sense that the trial court is not authorized to pronounce the accused guilty of the time-barred offense. Notwithstanding the fact that in certain special circumstances where the bar of the statute may be expressly waived when it does not operate in the defendant’s favor, see Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984); Hall v. State, 497 So.2d 1145 (Ala.Cr.App.1986), under ordinary circumstances the bar of the statute is not waived by a mere failure to assert it, and the statute of limitations may be properly asserted on appeal or in a petition for post-conviction relief.”

Cox v. State, 585 So.2d 182, 193 (Ala.Crim.App.l991)(emphasis added). Therefore, this issue is properly before this Court for review.

Cox also distinguished issues such as the one presented in this case, where the trial court lacked the authority to convict a defendant of a time-barred offense, from instances in which a trial court would be without subject-matter jurisdiction. In Cox, this Court held:

“Instead of alleging that the circuit court had no subject-matter jurisdiction over the conspiracy prosecution, it is more accurate to state that, once the court was shown that the prosecution was barred by the statute of limitations, the court had no ‘jurisdiction to try the question of the guilt or innocence of the accused.’ Serfass v. United States, 420 U.S. [377] at 391, 95 S.Ct. [1055] at 1064 [(1975) ], (quoting Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. 797, 806, 49 L.Ed. 114 (1904)).”

Cox v. State, 585 So.2d 182, 193-94 (Ala.Crim.App.1991).

This is consistent with Ex parte Seymour, 946 So.2d 536, 538 (Ala.2006), in which the Alabama Supreme Court held that in deciding whether a claim “properly challenges the trial court’s subject-matter jurisdiction, we ask only whether the trial court had the constitutional and statutory authority to try the offense with which” the defendant was charged. Accordingly, we hold that, although the trial court had subject-matter jurisdiction over the offenses Money was charged with, it did not have the authority to convict him of the time-barred misdemeanor.

Therefore, Money’s conviction is void and must be reversed. Additionally, we note that the jury’s verdict convicting Money of the lesser-included offense operates as an implicit acquittal of the greater offense. See Ex parte Gillentine, 980 So.2d 966, 972 (Ala.2007).

Based on the foregoing, the judgment of the trial court is reversed, and a judgment is rendered in favor of Money.

REVERSED AND JUDGMENT RENDERED.

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

      . Money raises five arguments on appeal. However, because we are reversing the conviction based on Money's argument relating to the expiration of the statute of limitations, we need not address the remaining arguments.

        . Although the victim in Hall was less than 16 years of age, the charged conduct in that case occurred before January 7, 1985, the effective date of § 15-3-5(a)(4), Ala.Code 1975, which eliminated the statute of limitations for such offenses. Accordingly, at the time the appellant in Hall was convicted, the applicable statute of limitations for attempted first-degree sexual abuse of a minor was 12 months.

      . The appellant was not indicted until April 1985.


author: WELCH, Judge.

text:
    Kenneth Thomas HICKS v. STATE of Alabama.
    CR-11-1974.
    Court of Criminal Appeals of Alabama.
    March 29, 2013.

      Glenn L. Davidson, Mobile, for appellant.
    Luther Strange, atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.
   WELCH, Judge.

Kenneth Thomas Hicks appeals the circuit court’s decision to revoke his probation. Hicks pleaded guilty on August 16, 2011, to first-degree rape and first-degree sexual abuse of a child under the age of 12. See §§ 13A-6-61 and 13A-6-69.1, Ala. Code 1975. He was sentenced to 20 years’ imprisonment for each conviction. The sentences were split, and Hicks was ordered to serve 18 months in prison followed by 5 years’ probation.

While Hicks was serving the probationary portions of his sentences, a delinquency report was filed alleging that Hicks had violated the terms and conditions of his probation. On August 3, 2012, Hicks filed a pro se motion to vacate his sentences, claiming that he had been illegally sentenced under the Split-Sentence Act. -See § 15-18-8, Ala.Code 1975. The trial court denied the motion. On September 13, 2012, a probation-revocation hearing was held at which Hicks admitted that he had violated the terms and conditions of his probation. Following Hicks’s admission, the trial court revoked Hicks’s probation. This appeal follows.

On appeal, Hicks argues that the circuit court did not have authority under § 15-18-8(a) of the Split-Sentence Act to split his sentences or to impose probation because sexual offenses involving a child are not among those offenses eligible for treatment under the Split Sentence Act- Hicks also cites in support of his position this Court’s recent decision in Enfinger v. State, 123 So.3d 535 (Ala.Crim.App.2012), and he argues that he should receive the same relief this Court provided the appellant in that ease. In its brief, the State concedes that Hicks’s sentence is not authorized by law and requests that this case be remanded to the circuit court in accordance with Enfinger.

In Enfinger, the appellant pleaded guilty to sexual abuse of a child less than 12 years old, see § 13A-6-69.1, Ala.Code 1975, and was sentenced as a habitual felony offender to 20 years’ imprisonment. Enfinger’s sentence was split, and he was ordered to time served in the custody of the Sheriff of Baldwin County followed by 3 years’ probation. This Court held that the circuit court did not have the authority under the Split-Sentence Act to split En-finger’s sentence or to impose a term of probation, and, therefore, the circuit court did not have the authority to revoke En-finger’s probation.

In Enfinger this Court stated:

“Section 15-18-8(a), Ala.Code 1975, specifically exempts from the Split-Sentence Act those offenders who have been convicted of ⅛ criminal sex offense involving a child as defined in Section 15-20-21(5).’ Section 15-20-21(5), Ala. Code 1975, defines ‘criminal sex offense involving a child’ as ‘[a] conviction for any criminal sex offense in which the victim was a child under the age of 12 and any offense involving child pornography.’ Additionally, § 15 — 18—8(b), Ala. Code 1975, specifically precludes the circuit court from imposing a term of probation for offenders convicted of ‘a criminal sex offense involving a child as defined in Section 15-20-21(5), which constitutes a Class A or B felony.’ Thus, the circuit court did not have the authority to either impose a split sentence or to impose a term of probation. See § 15-18-8(a) and (b), Ala.Code 1975. Therefore, the ‘execution of [En-finger’s] sentence is illegal.’ Simmons v. State, 879 So.2d 1218, 1222 (Ala.Crim.App.2003).
“In cases where the circuit court had no authority to impose the Split-Sentence Act, the proper remedy has been to remand the case to the circuit court for that court to remove the split portion of the sentence. See e.g., Simmons, supra (holding that, the circuit court had no authority to split a sentence and remanding the case to the circuit court for that court to set aside the split portion of the sentence), Morris v. State, 876 So.2d 1176 (Ala.Crim.App.2003) (same), Moore v. State, 871 So.2d 106 (Ala.Crim.App.2003) (holding that, although the circuit court had authority to split the sentence, the circuit court split the sentence in an improper manner and remanding the ease to the circuit court for that court to ‘reconsider the execution’ of that sentence). Austin[ v. State, 864 So.2d 1115, 1118 (Ala.Crim.App.2003) ](same).
“Those cases, however, do not contemplate the specific facts of this case — that is, where the circuit court imposes a split sentence and a term of probation under the Split-Sentence Act when it had no authority to do so and later conducts a probation-revocation hearing at which it revokes a defendant’s probationary term and orders that the defendant serve the remainder of his underlying sentence in prison. Thus, the issue before this Court is whether the circuit court’s improper imposition of the Split-Sentence Act can be remedied by the circuit court’s conducting a probation-revocation hearing and revoking a defendant’s probation.
“As discussed above, because the nature of Enfinger’s guilty-plea conviction exempts him from application of the Split-Sentence Act, the circuit court had no authority to apply the Split^-Sentence Act to Enfinger and no authority to impose a term of probation on Enfinger. See § 15-18-8(a) and (b), Ala.Code 1975. Because the circuit court had no authority to split Enfinger’s sentence or to impose a term of probation, it likewise had no authority to conduct a probation-revocation hearing and revoke Enfinger’s probation under § 15-18-8(c), Ala. Code 1975, which provides, in part, that under the Split-Sentence Act the circuit court ‘may revoke or modify any condition of probation or may change the period of probation.’ Because the circuit court had no authority to impose a term of probation or to revoke probation, the circuit court’s order revoking Enfinger’s probation is void.
“Because the circuit court’s probation order is void, the sentence in this ease is analogous to the sentences at issue in Simmons and Morris. Thus, like those cases, we must remand this case to the circuit court for that court to remove the split portion of Enfinger’s sentence, see e.g., Simmons, supra; Morris, supra. To do so, the circuit court must ‘conduct another sentencing hearing and ... reconsider the execution of [Enfinger’s] 20-year sentence. Because the 20-year sentence was valid, the circuit court may not change it.’ Austin, 864 So.2d at 1119; Moore, 871 So.2d at 109-10.
“We recognize that the circuit court’s revocation of Enfinger’s probation in this case appears to reach a result that is no different than the result that was obtained in Simmons and Moms — i.e., the probation revocation in essence removed the unauthorized split. Those cases, however, did not involve merely the removal of an improper split. In each of those cases, the circuit court was instructed to consider on remand whether the removal of the split would affect the voluntariness of the defendant’s guilty plea. Further, the circuit court in each case was instructed that, if the defendant moved to withdraw his guilty plea, it should allow the defendant to do so. See Simmons, supra; Morris, 876 So.2d at 1178 (‘Because the split sentence was a term of the appellant’s plea agreement, if the appellant moves to withdraw his guilty plea, the circuit court should grant the motion. See Austin v. State, 864 So.2d 1115 (Ala.Crim.App.2003).’). To hold that the circuit court can remedy the imposition of an unauthorized split sentence by revoking a defendant’s probation, however, would prevent that defendant from being able to move to withdraw his guilty plea and thus would treat him differently than the defendants in Simmons and Morris were treated — i.e., after the circuit court conducts a resentencing, the defendant would not have the assistance of appointed counsel to move to withdraw his guilty plea under Rule 14.4(e), Ala. R.Crim. P.; instead, an indigent defendant would have to raise, pro se in a Rule 32 petition, the issue that the defendant’s guilty plea was involuntary.
“Furthermore, holding that a circuit court can remedy the imposition of an improper split sentence by revoking a defendant’s probation could lead to an absurd result. For example, a defendant serving a sentence that is improper under the Split-Sentence Act could be charged with violating the terms and conditions of his probation and the circuit court could thereafter revoke that defendant’s probation. On appeal, the defendant could contend that the evidence was insufficient to support the revocation of his probation, and if, after a review of the record, this Court determined that the defendant is, in fact, correct, we would be forced to hold that, although the evidence was insufficient to support the revocation, the imposition of the remainder of his sentence is correct because the circuit court could not have imposed a split sentence. Such a result is unsound and untenable.
“Because the circuit court did not have the authority to revoke Enfinger’s probation, its order revoking Enfinger’s probation is vacated, and this case is remanded to the circuit court for that court to resentence Enfinger in accordance with this opinion.
“Additionally, we note that, although the record indicates that Enfinger was convicted of sexual abuse of a child under 12 as the result of a ‘plea bargain’ (C. 8), the record is unclear as to whether Enfinger’s sentence was part of the plea bargain. Thus, ‘it is impossible for this Court to determine whether resen-tencing [Enfinger] will affect the volun-tariness of his plea.’ Austin, 864 So.2d at 1119. If the split sentence was a term of Enfinger’s ‘plea bargain,’ and, if he moves to withdraw his guilty plea, the circuit court should conduct a hearing to determine whether withdrawal of the plea is necessary to correct a manifest injustice. See Rule 14.4(e), Ala. R.Crim. P.”

Enfinger, 123 So.3d at 539 (footnote omitted).

In this case, we likewise find that the circuit court did not have the authority under the Split-Sentence Act to split Hicks’s sentences or to impose terms of probation. As stated above, § 15-20-21(5), Ala.Code 1975, exempts offenders who have been convicted of “a criminal sexual offense involving a child as defined in Section 15-20-21(5).” Section 15-20-21(5), Ala.Code 1975, defines “criminal sex offense involving a child” as “[a] conviction for any criminal sex offense in which the victim was a child under the age of 12 and any offense involving child pornography.’ ” In addition, § 15-18-8(b), Ala.Code 1975, precludes the circuit court from imposing a term of probation for offenders convicted of “a criminal sex offense involving a child as defined in Section 15-20-21(5), which constitutes a Class A or B felony.” Hicks’s sentences were illegal because they were imposed following convictions for a sexual offense involving a child less than 12 years of age. Additionally, the sentences were imposed following convictions that involved a child and that constituted a Class A and a Class B felony. See §§ 13A-6-61 (Class A felony) and 13A-6-69.1 (Class B felony). Because the circuit court did not have the authority to sentence Hicks to the split sentences or to impose terms of probation, the circuit court did not have authority to revoke Hicks’s probation; thus, its order revoking Hicks’s probation is void. Enfinger; supra.

As was the case in Enfinger, the record is unclear whether Hicks’s sentences were the result of a plea agreement. Thus, this Court is unable to determine whether resentencing Hicks will affect the voluntariness of his pleas. If the split sentences were the result of any plea agreements and, if Hicks moves to withdraw his guilty pleas, the circuit court should conduct a hearing to determine whether withdrawal of the pleas is necessary to correct a manifest injustice. Enfinger, supra.

Based on the foregoing, the judgment of the circuit court has no effect, and this case is remanded to the circuit court for that court to vacate the sentences and to resentence Hicks in accordance with this opinion. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include a transcript of the proceedings conducted on remand.

REMANDED WITH INSTRUCTIONS.

KELLUM, BURKE, and JOINER, JJ., concur.

WINDOM, P.J., dissents, without opinion.

      . We note that the factual basis underlying the first-degree-rape charge is not a part of the record on appeal; however, the order of probation in the supplemental record contains the words "child victim” following the listed offenses. (S.R.63.) Because Hicks is challenging the legality of both of his sentences and because we read the words "child victim” to describe the victim in both of Hicks’s offenses, we remand both cases for further proceedings. If, however, the first-degree-rape conviction does not involve a child less than 12 years of age, the circuit court should so clarify upon its return to remand.

       Note from the reporter of decisions: On August 23, 2013, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: KELLUM, Judge. JOINER, Judge,

text:
    Johnny M. WILLIAMS v. STATE of Alabama.
    CR-11-1423.
    Court of Criminal Appeals of Alabama.
    May 3, 2013.

      Jonathan B. Mabire, Mobile, for appellant.
    Luther Strange, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.
   KELLUM, Judge.

Johnny M. Williams appeals from the circuit court’s revocation of his probation. The record indicates that in October 2011, Williams pleaded guilty to two counts of robbery in the second degree. The circuit court sentenced Williams to 10 years’ imprisonment; however, the court suspended that sentence and placed Williams on 3 years’ supervised probation.

While on probation, Williams violated the terms and conditions of his probation. Although the record does not contain a copy of the delinquency report or otherwise indicate what specific conditions of his probation Williams violated, the evidence presented at the probation-revocation hearing indicates that Williams was arrested and charged with theft of property, escape in the third degree, disorderly conduct, and assault following an altercation with police officers outside his girlfriend’s apartment. At the conclusion of the probation-revocation hearing, the circuit court revoked Williams’s probation and in open court stated as follows:

“All right. Mr. Williams’ probation is revoked. I have dealt with him and given him chance after chance after chance. He got a huge break before, and he keeps getting in trouble.
“If he would comply with what the officers had told him to do instead of running, we might be in a different situation. But he had one handcuff on him and ran. I’m not going to tolerate people going out there and spitting on police, fighting with them. That’s not going to happen.”

(R. 16-17.)

The circuit court then entered an order revoking Williams’s probation. That order stated, in pertinent part:

“The Court finds that the defendant has failed to comply with the terms of his/ her probation. Based upon all matters presented, it is ORDERED that the Defendant’s probation is REVOKED and the defendant shall begin serving his/her sentence to run concurrent with any other sentences he/she may be serving.”

(C. 3.) This appeal followed.

Williams’s sole contention on appeal is that the circuit court erred when it revoked his probation without adequately stating in the transcript or by written order its reasons for revoking his probation and the evidence upon which it relied to revoke his probation.

Rule 27.6(f), Ala. R.Crim. P., provides that, when revoking probation, “[t]he judge shall make a written statement or state for the record the evidence relied upon and the reasons for revoking probation.” In McCoo v. State, 921 So.2d 450, 462 (Ala.2005), the Alabama Supreme Court relaxed the requirements of a written probation-revocation order and this court’s review of that' order:

“[T]he requirement of Wyatt [v. State, 608 So.2d 762 (Ala.1992),] and its associated cases — that the trial court enter a written order stating its reasons for the revocation and the evidence relied upon regardless of the state of the record — is no longer applicable. Henceforth, the Court of Criminal Appeals may determine, upon a review of the record, whether the requisite Rule 27.6(f)[, Ala. R.Crim. P.,] statements are presented by that record. Thus, the Court of Criminal Appeals may examine the record and conclude that ‘oral findings, if recorded or transcribed, can satisfy the requirements of Morrissey [v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972),] when those findings create a record sufficiently complete to advise the parties and the reviewing court of the reasons for the revocation of supervised release and the evidence the decision maker relied upon.’ [United States v.] Copeland, 20 F.3d [412,] 414 [(11th Cir.1994) ].”

In Ex parte Garlington, 998 So.2d 458 (Ala.2008), the Alabama Supreme Court reiterated the importance of its holding in McCoo, stating:

“In order to meet the requirements of Rule 27.6(f), as well as those of constitutional due process, it is ‘the duty of the trial court to take some affirmative action, either by a statement recorded in the transcript or by written order, to state its reasons for revoking probation, with appropriate reference to the evidence supporting those reasons.’ McCoo [v. State], 921 So.2d [450,] 462 [ (Ala.2005) ] (emphasis added).”

Garlington, 998 So.2d at 458-59 (Ala.2008).

In the instant case, the record contains no delinquency report stating the terms and conditions of probation Williams violated. Further, the transcript of the probation-revocation hearing contains no statement by the circuit court regarding Williams’s alleged violations. Instead, the only indication of Williams’s alleged violations is found in the testimony of a police officer at the probation-revocation hearing who testified that Williams was charged with theft of property, escape in the third degree, disorderly conduct, and assault. At the conclusion of the hearing, the circuit court made no specific reference to which of the charges it found Williams violated before revoking Williams’s probation. Instead, the circuit court referenced past conduct on the part of Williams that is not supported by the record in addition to Williams’s failure to comply with the direct orders of the police officers and his conduct toward those officers. The circuit court’s oral findings fail to “create a record sufficiently complete to advise the parties and the reviewing court of the reasons for the revocation of [probation] and the evidence the decision maker relied upon.” McCoo, 921 So.2d at 462.

Under these circumstances, the appropriate remedy is to “remand this case to the circuit court with instructions that it enter a written order in which it specifically states the evidence upon which it relied and its reasons for revoking the appellant’s probation.” Kenney v. State, 949 So.2d 192, 195 (Ala.Crim.App.2006). Accordingly, we remand this cause for the circuit court to enter a new order stating its reasons for revoking Williams’s probation and the specific evidence relied upon in revoking probation. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion.

REMANDED WITH INSTRUCTIONS.

WINDOM, P.J., and WELCH and BURKE, JJ., concur. JOINER, J., dissents, with opinion.

JOINER, Judge,

dissenting.

I respectfully dissent. I conclude that the circuit court’s “written statement and its statement for the record, read in the context of that record unmistakenly declare the evidence relied upon and its reason or reasons for revoking probation.” McCoo v. State, 921 So.2d 450, 462 (Ala.2005). Furthermore, I conclude that a claim challenging the sufficiency of an order revoking probation is subject to review for harmless error, and, even if the circuit court’s order were insufficient here, I would hold that the error is harmless.

At Williams’s probation-revocation hearing, the State presented the testimony of two police officers employed with the Tuskegee Police Department. The officers collectively testified that they encountered Williams when they responded to a domestic dispute at a residence, that Williams was given the opportunity to leave, that Williams became belligerent once he left the residence, that he was warned by the officers that he was being disorderly, and that, once officers attempted to arrest Williams, Williams struggled with the police, spit on the police, and, despite being handcuffed, escaped from officers. Notably, there was no other evidence offered at the hearing.

At the conclusion of the hearing, the circuit court stated:

“THE COURT: All right. Mr. Williams’s probation is revoked. I have dealt with him and given him chance after chance after chance. He got a huge break before, and he keeps getting in trouble.
“If he would comply with what the officers had told him to do instead of running, we might be in a different situation. But he had one handcuff on him and ran. I’m not going to tolerate people going out there spitting at police, fighting with them. That’s not going to happen.”

(R. 16-17.) The circuit court also entered a written order, which states, in part, as follows:

“The Court finds that the defendant has failed to comply with the terms of his/her probation. Based on all matters presented, it is ORDERED that the defendant’s probation be REVOKED and the defendant shall begin serving his/her sentence to run concurrent with any other sentence he/she may be serving.”

(C. 3.)

Initially, an attorney representing Williams on appeal filed a no-merit brief with this Court in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and moved to withdraw as Williams’s appellate counsel. Upon a review of the record in this matter, this Court granted the motion to withdraw but appointed new appellate counsel for Williams and ordered Williams’s new counsel to address the following issue:

“Whether the circuit court’s ... order revoking Williams’s probation complied with Rule 27.6, Ala. R.Crim. P.; specifically, [whether] the circuit court [took] some affirmative action, either by a statement recorded in the transcript or by written order, to state its reasons for revoking probation, with appropriate reference to the evidence to support those reasons.”

After recognizing this issue and ordering briefing on it, this Court now remands this cause on the basis that

“[t]he circuit court’s oral findings fail to ‘create a record sufficiently complete to advise the parties and the reviewing court of the reasons for the revocation of [probation] and the evidence the decision maker relied upon.’ ”

138 So.3d at 344-45 (quoting McCoo, 921 So.2d at 462).

I.

First, I conclude that the circuit court’s order is sufficient. As the Alabama Supreme Court stated in McCoo, the circuit court is required “by a statement recorded in the transcript or by written order, to state its reasons for revoking probation, with appropriate reference to the evidence supporting those reasons.” 921 So.2d at 462. The circuit court’s oral probation-revocation pronouncement references the testimony of the two officers — the only evidence presented at the hearing — in support of its decision and, further, recognizes that Williams’s interaction with the officers was the basis of its decision. See R. 16-17 (“If he would comply with what the officers had told him to do instead of running, we might be in a different situation. But he had one handcuff on him and ran. I’m not going to tolerate people going out there spitting at police, fighting with them. That’s not going to happen.”). Accordingly, I conclude that the circuit court’s oral pronouncement sufficiently “statefs] [the circuit court’s] reasons for revoking probation, with appropriate reference to the evidence supporting those reasons.” McCoo, supra.

Second, even if the circuit court’s oral pronouncement is insufficient, a remand is still not mandated. In McCoo, the Alabama Supreme Court stated:

“The record available to the Court of Criminal Appeals in this case consists essentially of the following: the probation officer’s delinquency report charging a single violation of probation, by virtue of the alleged commission of the new offense of robbery in the first degree; the trial court’s December 9, 2003, entry on the case action summary sheet memorializing McCoo’s appearance before the court for a ‘delinquency hearing’ and the fact that he had been advised that he was charged with violating his probation by committing the new offense of robbery in the first degree; the five and one-half page transcript of the revocation hearing, at which Det. Favor was the only witness; and the trial court’s written probation-revocation order. We believe the Court of Criminal Appeals should have the discretion to review such a minimal and unambiguous record to determine if the trial court’s unit-ten statement and its statement for the record, read in the context of that record, unmistakenly declare the evidence relied upon and its reason or reasons for revoking probation.”

McCoo, 921 So.2d at 462 (emphasis added). Thus, to resolve a claim challenging the sufficiency of an order revoking probation, we determine whether there is “a record sufficiently complete to advise the parties and the reviewing court of the reasons for the revocation of supervised release and the evidence the decision maker relied upon.” McCoo, 921 So.2d at 462 (quotations omitted).

According to the circuit court’s written order, the revocation was based on “all matters presented.” As noted, the only evidence presented at the hearing was the testimony of the police officers. Likewise, the circuit court’s oral pronouncement of revocation explicitly references the testimony of the two officers; further, the oral pronouncement states that the revocation was a result of Williams’s interaction with the police and that the outcome of the probation-revocation hearing may have been different if Williams had complied with the police instead of running. The record in this case — like the one in McCoo — is minimal and unambiguous; likewise, the circuit court’s pronouncement and written order are sufficient to apprise the parties and this Court of the reasons for revocation and the evidence relied upon by the circuit court.

In Ex parte Garlington, 998 So.2d 458, 458 (Ala.2008), the Alabama Supreme Court held as insufficient oral and written probation-revocation orders that stated only “Probation is revoked.” Similarly, this Court in Rhodes v. State, 32 So.3d 53, 58 (Ala.Crim.App.2009), held that a probation-revocation order — stating only “probation is revoked” — was insufficient. In those cases — unlike McCoo and this case— the circuit court’s order was bare and there was no basis from which this Court could discern the reason for the circuit court’s decision.

In my opinion, the Court’s decision today is based on an overly broad reading of Ex parte Garlington that unnecessarily erodes the discretion McCoo recognized that this Court has to determine whether there is “a record sufficiently complete to advise the parties and the reviewing court of the reasons for the revocation of [probation] and the evidence the decision maker relied upon.” 921 So.2d at 462. I question the legal necessity — as well as the practicality — of replacing that discretion with a rule that essentially requires a remand as a mere formality in probation-revocation cases.

II.

I conclude that a claim challenging the sufficiency of an order revoking probation is subject to review for harmless error, Rule 45, Ala. R.App. P., and, even if the circuit court’s order were insufficient here, I would hold that the error is harmless.

A sufficiency-of-the-order claim is among four claims that are not bound by the general rules of preservation and thus may be raised for the first time on appeal. See Saffold v. State, 77 So.3d 178, 179 (Ala.Crim.App.2011) (noting that there are four probation-revocation claims that are not bound by the general rules of preservation: a claim that there was no adequate written order, a claim that a revocation hearing was not actually held, a claim that the circuit court did not advise a probation-revocation defendant of his or her right to request an attorney, and a claim that the circuit court erred in failing to appoint counsel). This Court has not held, however, that these four claims are not subject to harmless-error analysis; indeed, this Court has applied a harmless-error analysis to at least two of these four claims. See Dean v. State, 57 So.3d 169 (Ala.2010) (holding that the circuit court’s failure to appoint counsel at a probation-revocation hearing is subject to harmless-error analysis); Davis v. State, 855 So.2d 1142 (Ala.Crim.App.2003) (holding that a circuit court’s failure to advise a probation-revocation defendant of his right to counsel was subject to harmless-error analysis).

In Hodges v. State, 912 So.2d 302 (Ala.Crim.App.2005), then Judge Shaw — joined by then Judge Wise — argued that an insufficient probation-revocation order is subject. to harmless-error analysis. In Hodges, then Judge Shaw wrote:

“In this case, Earnest Hodges was charged with violating his probation by engaging in injurious or vicious habits and criminal activity, the basis of the charge being that Hodges committed the criminal offense of domestic violence for assaulting Joshua Gates, with whom Hodges and a woman identified as ‘Ms. Goodin’ were living. Hodges was provided a revocation hearing in accordance with Rule 27.6(a), Ala. R.Crim. P., during which he was represented by counsel and testified on his own behalf; the evidence presented at the revocation hearing fully supports the trial court’s conclusion that Hodges engaged in criminal activity, specifically, that he committed domestic violence. Hodges does not challenge the revocation of his probation on appeal; his only argument concerns the adequacy of the written revocation order. Under these circumstances, it is clear to me that Hodges has not been prejudiced by the defect in the trial court’s written revocation order and that a remand is not necessary.”

912 So.2d at 306 (Shaw, J., dissenting).

In this case, there is no argument that Williams was not afforded a hearing or that he was deprived of due process; likewise, the evidence presented at the hearing was sufficient. On appeal, Williams argues — at the request of this Court — only that the circuit court’s order was insufficient. Williams does not argue that the circuit court’s order impedes his ability to adequately appeal his case or that this Court’s review is hampered by the circuit court’s order. As then Judge Shaw concluded in Hodges, “[ujnder these circumstances, it is clear to me that [Williams] has not been prejudiced by the defect in the trial court’s written revocation order and that a remand is not necessary.” 912 So.2d at 306.

Accordingly, I dissent.

       Note from the reporter of decisions: On June 28, 2013, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On August 23, 2013, that court denied rehearing.

      . As a threshold matter — independent of the order — it is worth noting that Williams was afforded due process. He was arrested pursuant to a probation-revocation arrest warrant, and he was afforded a probation-revocation hearing at which he was represented by counsel, at which the State presented non-hearsay testimony, and at which Williams was allowed to cross-examine the State's witnesses.

      . For this reason, this case is distinguishable from Thomas v. State, 10 So.3d 1090, 1093 (Ala.Crim.App.2008), in which this Court concluded that a probation-revocation order— which was "based on the evidence presented at the ... revocation hearing” — was insufficient when the circuit court received testimony from various witnesses presented by both parties.

      . Recent decisions of this Court that, in my opinion, reflect an incremental erosion of the discretion recognized in McCoo include Washington v. State, 23 So.3d 708 (Ala.Crim. App.2009), and Boles v. State, 32 So.3d 607 (Ala.Crim.App.2009).
      In Washington, the record included a transcript of the probation-revocation proceedings and included the following order:

        " 'Defendant DENIES the alleged violation(s) of the rules of probation/work release. Upon consideration of the evidence presented by the State at the Defendant’s probation hearing (see below) the Court finds that the Defendant violated the rules of probation/work release: specifically, failure to:
      " ‘pay ct ordered monies
      " ‘refrain from violating State/local/fed law: carrying concealed weapon.' "
      23 So.3d at 709. Although the order referenced the evidence upon which the circuit court relied — “the State’s evidence” — and referenced the basis for revocation — Washington’s violation of probation and work-release rules — this Court nevertheless remanded the case with instructions that the circuit court "enter a written order in which it specifically states the evidence upon which it relied and its reasons for revoking Washington's probation.” 23 So.3d at 709.
      In Boles, the record, in addition to a transcript of the probation-revocation proceedings, included an order that stated:
      " 'THIS CASE is before the Court on the State’s Motion to Revoke the Defendant's probation. According to the Probation Officer's report, the Defendant is in violation of the terms of his probation by having tested positive to drugs on a drug screen and by failing to avoid persons or places of harmful conduct or character. Accordingly, his probation is revoked, and he is ORDERED to serve the sentence previously imposed in the custody of the Commissioner of the Department of Corrections.' ”
      32 So.3d at 608. Although this Court held that "the evidence presented at the probation-revocation hearing was sufficient to support the revocation of Boles’s probation,” this Court nevertheless remanded the matter for the circuit court "to enter a new order reflecting the specific evidence relied upon in revoking Boles's probation.” 32 So.3d at 609-10. In light of this Court's holding that the evidence presented at the probation-revocation hearing was sufficient to support revocation, I question the necessity and utility of remanding the matter for a new order; in my opinion, if the parties in Boles were able to articulate appellate arguments regarding the basis of revocation and this Court was able to conclude that the evidence was sufficient to support revocation, there was "a record sufficiently complete to advise the parties and the reviewing court of the reasons for the revocation of [probation] and the evidence the decision maker relied upon.” McCoo, 921 So.2d at 462 (quotations omitted).

      . Judge Shaw and Judge Wise are now Associate Justices on the Alabama Supreme Court.

      . The majority seems concerned with the fact that "the circuit court referenced past conduct on the part of Williams that is not supported by the record in addition to Williams’s failure to comply with the direct orders of the police officers and his conduct toward those officers.” Williams, 138 So.3d at 344. This argument speaks to the sufficiency of the evidence supporting the circuit court’s order; that argument, however, is not before this Court. Moreover, the circuit court had discretion to rely on its own records. See generally Hales v. Scott, 473 So.2d 1028, 1029 (Ala. 1985).