text:
    Lynn BARTER and Joy Barter v. BURTON GARLAND REVOCABLE TRUST et al.
    2111050.
    Court of Civil Appeals of Alabama.
    April 5, 2013.

      James A. Bradford and Ed R. Haden of Balch & Bingham, LLP, Birmingham; and S. Sanford Holliday, Roanoke, for appellants.
    Kesa Johnston Dunn, Roanoke, for Dennis Connell.
   THOMAS, Judge.

Lynn Barter and his wife, Joy Barter, own Lots 38 and 39 in Lakeview Estates, a subdivision located in Randolph County; the Barters purchased their lots from Ma-wal, Inc., one of the 60 named defendants in this case. The Barters’ deed to Lot 39, which is dated July 1999, is contained in the record on appeal. That deed includes the following exception (“the exception”) from the grant of Lot 39: “Except all rights and title to the dirt drive roadway and boat ramp located on the East side of said lot as shown on the plat recorded in Plat Book 2 Page 70 and Page 89 in the office of the Probate Judge of Randolph County, Alabama.” In April 1999, before the Barters purchased Lot 39, Burlin Meadows and Gwen Meadows executed a quitclaim deed to “all lot owners of Lake-view Estates”; the deed recited that it “remise[d], release[d], quitclaim[ed], and convey[ed] to the lot owners,” which it described as “the owners of lots one thru fifty-four,” “all right, title, interest, and claim in and to” the roadway and the boat ramp shown in the subdivision plat to be located on Lot 39.

In June 2009, the Barters filed an action in the Randolph Circuit Court seeking an abatement of the nuisance they alleged was caused by the use of the boat ramp and seeking a declaration of the legal effect of the April 1999 quitclaim deed of the roadway and the boat ramp to “the owners of Lakeview Estates.” The Barters named as defendants the Lakeview Estates Homeowners Association and all the record owners of Lakeview Estates as of April 1999 (“the subdivision lot owners”), including the Burton Garland Revocable Trust, Mawal, Inc., and Dennis Connell. After service on some, but not all, of the defendants was perfected, only a few of the defendants answered, all but one of them appearing pro se by letter to the trial court. The only defendant to appear through an attorney, Dennis Connell, answered and filed a counterclaim, in which he sought a determination that he had an express easement over the roadway and the boat ramp, a determination that the Barters had interfered with that easement, and an injunction requiring the Barters to remove the gate across the roadway and to permit unfettered access to the boat ramp.

Connell filed a motion for a summary judgment in February 2011. The Barters opposed that motion. Based on the facts in the parties’ pleadings and various submissions, it appears that the Barters alleged that they had improved the boat ramp by .paving the area surrounding the boat ramp and had, at times, cleared the area. The Barters alleged that their house had been burglarized twice and that people, including people who were not owners of lots in Lakeview Estates, were gathering and drinking at the boat ramp, which the Barters alleged created a nuisance. Based on recommendations from the sheriffs department, the Barters stated, they had placed a, gate across the roadway to restrict access to the boat ramp. According to the Barters, they would give a key to the gate to whomever requested one. The Barters characterized the interest in the roadway and the boat ramp granted to the subdivision lot owners as an easement.

In his summary-judgment motion, Con-nell argued that, based on the April 1999 quitclaim deed and the exception in the July 1999 deed to the Barters, Connell, and the other subdivision lot owners, and not the Barters, had title to the roadway and the boat ramp. He further argued that the Barters had “improperly caused impediment to Connell’s use and enjoyment of his jointly owned land.” Connell noted in his motion that the Barters were on notice of the subdivision lot owner’s common ownership of the roadway and the boat ramp at the time they purchased Lot 39. Connell also stated that the Barters had not “sufficiently plead[ed] or proved a prima facie case for nuisance.” Connell’s motion did not contain a narrative summary of facts, but he supported his motion with a copy of the April 1999 quitclaim deed, a 1998 deed conveying his lot to him, and the July 1999 deed conveying Lot 39 to the Barters, as well as with his own affidavit.

The Barters, in their response to Con-nell’s motion, argued that only nine of the subdivision lot owners had objected to the Barters’ claim of ownership of the roadway and the boat ramp or to ‘the Barters’ requests to have the use of the roadway and the boat ramp ended or at least restricted. The Barters offered Lynn Barter’s affidavit, in which he explained the facts giving rise to the litigation, including descriptions of some of the behavior occurring at the boat ramp. In the statement of facts contained in their first brief in opposition to Connell’s summary-judgment motion, the Barters stated that the Meadowses had recorded the plat to create the Lakeview Estates subdivision, that the plat reflected a dirt roadway , and the boat ramp that ran across Lot 39, and that the Meadowses had executed a quitclaim deed in April 1999 conveying the roadway and the boat ramp to the subdivision lot owners. The first brief the Barters offered in opposition to Connell’s summary-judgment motion focused solely on the legal right of a servient estate holder to burden an easement insofar as the burden on the easement is not unreasonable. However, the Barters’ first brief did not address Connell’s claim that the 1999 quitclaim deed conveyed the roadway and the boat ramp to the subdivision lot owners in fee simple. After a hearing on the summary-judgment motion, the trial court directed the parties to brief the issue of the parties’ interests in the roadway and the boat ramp.

Thus, in June 2011, the Barters filed a supplemental brief in support of their opposition to Connell’s motion, in which they argued that the April 1999 quitclaim deed, which they characterized as a deed from the original developers of the Lakeview Estates subdivision, was void because of the ambiguous description of the grantees in that deed. The Barters also briefly argued that the deed had not been delivered. Connell responded with his own brief, which contained a statement of facts and a brief legal argument that the grantees of the deed were sufficiently named because they were capable of being ascertained. The Barters filed an objection to Connell’s brief, in which they requested that the trial court not consider Connell’s brief because it was filed after the deadline the court had set; the trial court did not rule on that motion. After a hearing, the trial court entered a summary judgment in favor of Connell and the other defendants.

The Barters filed a postjudgment motion, in which they advanced several arguments that they had not made before the entry of the summary judgment. First, the Barters moved to strike Connell’s affidavit based on, among other things, the ground that the affidavit contained hearsay evidence. They further argued that Connell’s motion for a summary judgment had been procedurally deficient because it lacked a narrative summary of facts. The Barters also argued to the trial court that Connell did not establish that the Mead-owses had had good title to the roadway and the boat ramp such that the April 1999 quitclaim deed could convey fee-simple title to the subdivision lot owners, although they had never disputed the fact that the Meadowses could have conveyed an easement and had stated at a hearing on the summary-judgment motion that the Mead-owses had conveyed the roadway and the boat ramp to the subdivision lot owners to avoid liability that might arise from the use of the boat ramp, indicating that the Barters conceded that the Meadowses had had title to the roadway and the boat ramp to convey. The Barters further argued that the April 1999 quitclaim deed should be construed not as a grant of fee-simple title to the roadway and the boat ramp but, instead, as the grant of an easement. Finally, the Barters argued that they, as tenants in common with the other lot owners, had the right to install the gate across the roadway because the Barters’ actions in installing the gate did not amount to an ouster of the other cotenants. The trial court did not rule on the Barters’ motion, and it was denied by operation of law. See Rule 59.1, Ala. R. Civ. P. The Barters then timely appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

On appeal, the Barters advance some of the arguments that they presented for the first time in their postjudgment motion. Although a trial court may consider an argument made for the first time in a postjudgment motion, a trial court is not required to do so. See Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1369 (Ala.1988). In the present case, the trial court permitted the postjudgment motion to be denied by operation of law, which indicates that the trial court did not consider the Barters’ tardy arguments. See, generally, Espinoza v. Rudolph, 46 So.3d 403, 416 (Ala.2010) (indicating that an appellate court will not presume that a trial court considered the merits of an untimely asserted legal argument absent an indication that it did so). Thus, to the extent that the Barters rely on appeal on those arguments asserted for the first time in their postjudgment motion, we cannot consider those arguments as a basis for reversing the summary judgment in favor of Connell and the other defendants. Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000) (recognizing that “the appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before or at the time of submission of the motion for summary judgment”). We will therefore not address the issues relating to the title possessed by the grantors of the April 1999 quitclaim deed or the alleged procedural deficiencies in Connell’s summary-judgment motion. See Minor Heights Fire Dist. v. Skinner, 831 So.2d 609, 615 (Ala.Civ.App.2002) (refusing to consider whether the trial court erred in entering a summary judgment when the movant had failed to include a narrative summary of facts because the nonmovant had -not objected to the failure to include the summary in the trial court).

The Barters argue on appeal that the trial court, should not have entered a summary judgment in favor of Connell and the other defendants because Connell’s motion was deficient and, thus, failed to shift the burden to the Barters to provide substantial evidence to rebut the motion. As noted above, the Barters failed to object to the lack of a narrative summary of facts before the entry of the judgment in favor of Connell and the other defendants, and, thus, we will not consider the Barters’ argument insofar as it is based on the lack of a narrative summary of facts. However, the Barters also argue that Connell’s summary-judgment motion sought a summary judgment in his favor on his counterclaims, upon which h¿ would have had the burden of proof at trial; thus, they contend, Connell was required to satisfy a different burden as movant than is a mov-ant who does not have the burden of proof on the issue at trial. Furthermore, the Barters argue that Connell failed to meet that burden.

“ ‘ “ ‘[T]he manner in which the [summary-judgment] movant’s burden of production is met depends upon which party has the burden of proof ... at trial.’ ” Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999) (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)). If ... “ ‘the movant has the burden of proof at trial, the movant must support his motion with credible evidence, using any of the material specified in Rule 56(c), [Ala.] R. Civ. P. (“pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits”).’ ” 769 So.2d at 909. “ ‘The movant’s proof must be such that he would be entitled to a directed verdict [now referred to as a judgment as a matter of law, see Rule 50, Ala. R. Civ. P.] if this evidence was not controverted at trial’ ” Id. In other words, “when the movant has the burden [of proof at trial], its own submissions in support of the motion must entitle it to judgment as a matter of law.” Albee Tomato, Inc. v. A.B. Shalom Produce Corp., 155 F.3d 612, 618 (2d Cir.1998) (emphasis added). See also Equal Employment Opportunity Comm’n v. Union Indepen-diente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49 (1st Cir.2002); Rushing v. Kansas City Southern Ry., 185 F.3d 496 (5th Cir.1999); Fontenot v. Upjohn Co., 780 F.2d 1190 (5th Cir.1986); Calderone v. United States, 799 F.2d 254 (6th Cir.1986).’
“Denmark v. Mercantile Stores Co., 844 So.2d-1189, 1195 (Ala.2002).”

Jones-Lowe Co. v. Southern Land & Exploration Co., 18 So.3d 362, 367 (Ala.2009). We note, however, that “all evidence of record, as well as that evidence formally submitted in support of or in opposition to a motion for summary judgment, should be considered in ruling on the motion.” Fountain v. Phillips, 404 So.2d 614, 618 (Ala.1981).

We agree that Connell would have had the burden of proof at. trial on his claim that the April 1999 quitclaim deed conveyed fee-simple title to the roadway and the boat ramp to him and the other subdivision lot owners and his request for an injunction requiring the Barters to remove the gate across the roadway. Thus, we agree that he was required to present evidence in support of his motion sufficient to entitle him to a judgment as a matter of law. However, we are not convinced that Connell failed to meet his burden with respect to his claim of fee-simple title to the roadway and the boat ramp under the April 1999 quitclaim deed or his claim requesting an injunction requiring the removal of the gate.

The Effect of the April 1999 Quitclaim Deed

In their complaint, the Barters requested that the trial court determine the effect of the April 1999 quitclaim deed. Connell, in his counterclaim, requested that the trial court determine that he had an express easement in the roadway and the boat ramp. In his summary-judgment motion, Connell changed his argument, specifically arguing that the April 1999 quitclaim deed and the exception in the Barters’ July 1999 deed to Lot 39. demonstrated that he and the other subdivision lot owners had fee-simple title to the roadway and the boat ramp. The parties proceeded to brief the question regarding the validity of the April 1999 quitclaim deed, and the trial court, based on the arguments asserted by the parties, proceeded to determine whether, as a matter of law, Connell had proven that he (and the other subdivision lot owners) owned the roadway and the boat ramp.

The interpretation of a deed is sometimes a mixed question of law and fact. Lindsey Lumber & Export Co. v. Deas, 230 Ala. 447, 449, 161 So. 473, 474 (1935) (opinion on rehearing) (recognizing that “in some instances the interpretation may depend upon the sense in which the words are used, and upon facts aliunde”). However, “[i]n a suit to construe an unambiguous instrument, actual knowledge of the parties, oral statements of the parties, and other matters are inadmissible.” Cole v. Minor, 518 So.2d 61, 64 (Ala.1987). Therefore, we must determine whether additional evidence was necessary to determine the effect of the April 1999 quitclaim deed.

The Barters asserted below and now argue on appeal that the April 1999 quitclaim deed could be construed as only the grant of an easement as opposed to a grant of fee-simple title. Relying on Looney v. Blackwood, 224 Ala. 342, 140 So. 400 (1932), the Barters argue that Alabama law provides that a conveyance of a “road way” is actually the conveyance of an easement or right-of-way over the roadway. However, Looney is inapposite, because the conveyance in Looney was for certain property and “the grant of a roadway” for ingress and egress over the grantor’s adjoining property to prevent the grantee from being landlocked. Looney, 224 Ala. at 343, 140 So. at 401. The April 1999 quitclaim deed, which indicated that it conveyed all right, title, and interest in the real estate more particularly described as the roadway and the boat ramp, did not indicate that the deed was intended to create merely an easement for ingress and egress over the lands of another.

Under Ala.Code 1975, § 35-4-2, the April 1999 quitclaim deed is presumed to have conveyed fee-simple title to the roadway and the boat ramp. See Moss v. Williams, 822 So.2d 392, 396-97 (Ala.2001) (construing similarly worded deeds and explaining the presumption stated in Ala. Code 1975, § 35-4-2, that “[ejvery estate in lands is to be taken as a fee simple ... unless it clearly appears that a less estate was intended”).

“ ‘[T]he granting clause in a deed determines the interest conveyed, and unless there is repugnancy, obscurity or ambiguity in that clause, it prevails over introductory statements or recitals in conflict therewith, and over the habendum, too, if that clause is contradictory or repugnant to it.’ Slaten v. Loyd, 282 Ala. 485, 487-88, 218 So.2d 219, 220-21 (1968) (emphasis added). Where the granting clause, however, designates no particular estate, any intent to overcome the statutory presumption that the conveyance is of a fee-simple estate ‘must of necessity be found in lucid, unambiguous language used to express it, rather than statements merely contradictory or r&pugnant to that found in [the] granting clause.’ Slaten, 282 Ala. at 488, 213 So.2d at 221 (emphasis added).”

Moss, 822 So.2d at 397. In certain cases, the Alabama Supreme Court has determined that a conveyance of a roadway or of land intended for use as a roadway was, in fact, the conveyance of only a right-of-way. See, e.g., Greaves v. McGee, 492 So.2d 307 (Ala.1986). However, the determination of the interest conveyed hinges on the language used in the deed. Moss, 822 So.2d at 397.

In Moss, our supreme court construed the language in the granting clauses of two deeds, one in which the grantor used the clause “‘does hereby remise, release and forever quit claim ... the strip of land’ ” and the other in which the grantor used the clause, “ ‘does hereby grant, bargain, sell and convey ... all the following described property.’ ” Id. at 397 (emphasis omitted). Further, the habendum clauses in both deeds stated: “ ‘To Have and To Hold the same unto the [grantees,] its successors and assigns forever.’ ” Id. (emphasis omitted). In other parts of the deeds, however, the grantors used the term “ ‘right of way.’ ” Id.

Based on the language used in the deeds at issue in Moss, our supreme court determined that the deeds conveyed fee-simple title to the property at issue. Id. at 400. The court relied heavily on Rowell v. Gulf, Mobile Ohio R.R., 248 Ala. 463, 28 So.2d 209 (1946), and focused on the fact that the deeds conveyed land as opposed to a right to use the land. Id. at 398. Because the granting clauses in both deeds unambiguously conveyed “land” and “property,” respectively, the court concluded that they did not convey an incorporeal right but, instead, conveyed a fee-simple estate in the described property. Id. at 399.

The April 1999 quitclaim deed “remise[s], quitclaim[s], and convey[s] ... all right, title, interest and claim in and to the following described real estate.... ” Thus, based on Moss, it would appear that the granting clause in the April 1999 quitclaim deed indicates that a fee-simple conveyance was intended. Unlike the deeds in Moss, the April 1999 quitclaim deed contains no reference that could possibly be construed to limit the conveyance to an easement or a right-of-way. The only possibly limiting word contained in the April 1999 deed is the term “roadway,” which is contained in the description of the real estate conveyed. Therefore, the trial court had before it the only evidence necessary to determine the effect of the April 1999 quitclaim deed — the deed itself — and we cannot agree that the evidence presented to the trial court was insufficient to determine that the April 1999 quitclaim deed, if valid, conveyed fee-simple title in the roadway and the boat ramp to Connell and the other subdivision lot owners.

As they did below, the Barters further argue that the description of the grantees of the deed was so ambiguous as to render the deed void. The Barters rely upon Haney’s Chapel United Methodist Church v. United Methodist Church, 716 So.2d 1156 (Ala.1998), as support for their contention that the description of the grantees in the April 1999 quitclaim deed was too ambiguous for the deed to be considered valid. Certainly, as our supreme court has explained, “for a deed to serve as a successful conveyance, the grantee must be identifiable with certainty.” Haney’s Chapel, 716 So.2d at 1159. The deed in Haney’s Chapel named as grantee “ ‘This Community.’ ” Id. According to the court, no evidence explaining the intent of the grantors was admitted and the exact meaning of the designation “ ‘This Community’ ” was unknown, rendering the deed void. Id.

The April 1999 quitclaim deed, in contrast, makes clear the identity of the grantees by describing them as “all lot owners of Lakeview Estates” and further describing them as “being the owners of lots numbered one thru fifty-four.” The identity of the grantees was thus readily ascertainable. See, e.g., Roeckl v. F.D.I.C., 885 P.2d 1067, 1071 (Alaska 1994) (quoting 6 George W. Thompson, Commentaries on the Modem Law of Real Property § 3006, at 349 (John S. Grimes repl. ed.1962)) (noting that “the grantee need only be ‘so designated and described as to distinguish him [or her] from the rest of the world’ ”); Garraway v. Yonce, 549 So.2d-1341, 1342 (Miss.1989) (stating that the law requires only that “the grantee be described in such terms that by reference to objective evidence otherwise available, his identity may be ascertained with reasonable certainty”); Close v. O’Brien & Co., 135 Iowa 305, 307, 112 N.W. 800, 801 (1907) (“It is a well-recognized rule that the grantee in a deed may, under certain conditions, be identified by extrinsic evidence, and, where the grantee may be identified by parol or by other evidence, a conveyance will vest the legal title as completely and as surely as if he were fully identified by the conveyance itself.”); see also 4 Herbert Thorndike Tiffany, The Law of Real Property § 967 (3d ed. 1975) (“The grantee or grantees must be named in the conveyance, or means for their identification furnished thereby.”). Thus, we are not convinced that the April 1999 quitclaim deed was void because it did not specifically name the grantees.

To the extent the Barters have argued sufficiently on appeal and in the trial court that the April 1999 quitclaim deed was invalid because it was not delivered, we must disagree. As the Barters admit, “the recording of a deed by a grant- or can often constitute sufficient delivery of the instrument to convey title, if that is the intention of the grantor.” Tierce v. Macedonia United Methodist Church of Northport, 519 So.2d 451, 459 (Ala.1987). Furthermore, “[i]f [a deed] is duly acknowledged and recorded, the presumption of delivery attaches, which can be repelled only by evidence of the dissent of the grantee.” Gulf Red Cedar Co. v. Cranshaw, 169 Ala. 606, 613, 53 So. 812, 814 (1910) (“It may be regarded as settled in this state that when a paper purporting to be a deed is shown to have been signed by the grantor, to have been then acknowledged and duly certified by a proper officer, and recorded in the office of the judge of probate of the county in which the lands lie, and there is no other proof to weaken the force of these facts, this is sufficient proof of complete execution by delivery, although there is no direct proof of delivery.”). The April 1999 quitclaim deed was recorded, and, although some of the defendants failed to answer the Barters’ complaint and some filed answers disclaiming any interest in the roadway and the boat ramp, we cannot agree, and the Barters cite no authority for the proposition, that such actions by some of the defendants amount to proof that the subdivision lot owners dissented from the delivery of the deed.

Thus, we cannot agree with the Barters that Connell did not meet his burden of presenting evidence that would entitle him to a judgment as a matter of law on the issue whether the April 1999 quitclaim deed conveyed fee-simple title in the roadway and the boat ramp to him and the other subdivision lot owners. The April 1999 quitclaim deed conveyed the roadway and the boat ramp in fee simple and did not merely grant Connell and the other subdivision lot owners an easement. Further, the deed is not void because the grantees were ascertainable and, thus, sufficiently named and because the presumption that the deed was delivered was not effectively rebutted. We therefore affirm the summary judgment insofar as it determined that the April 1999 quitclaim deed conveyed fee-simple title in the roadway and the boat ramp to Connell and the other subdivision lot owners.

The Injunction Requiring Removal of the Gate

Regarding the summary judgment on Connell’s claim seeking an injunction requiring the Barters to remove the gate across the roadway and to permit unfettered access to the boat ramp, we reach the same conclusion. Connell, as the party having the burden of proof at trial, was required to present evidence that would entitle him to an injunction requiring removal of the gate as a matter of law. See Jones-Lowe Co., 18 So.3d at 367. The trial court had before it the April 1999 quitclaim deed and the Barters’ July 1999 deed to Lot 39, which specifically excepts the roadway and the boat ramp from the conveyance of Lot 39.

The trial court determined that the April 1999 quitclaim deed conveyed fee-simple title to the “original grantees.” Thus, it appears that the trial court determined that the “original grantees” — namely, Connell and the other subdivision lot owners — owned indivisible interests in the roadway and the boat ramp as tenants in common. Based on the fact that the Barters did not own Lot 39 at the time the April 1999 quitclaim deed was executed, and based on the exception in the July 1999 deed, the trial court necessarily, and correctly, concluded that the Barters did not hold any title to the roadway and the boat ramp. The Barters concede as much, stating in their brief on appeal that, if the April 1999 quitclaim deed is construed as a conveyance of the roadway and the boat ramp in fee simple, title to the roadway and the boat ramp would not pass with the transfer of title to a lot in the subdivision because the title to the roadway and the boat ramp would be “title to land additional to that described [in the deed to a lot in the subdivision and] cannot pass as ■ an appurtenance.” 23 Am.Jur.2d Deeds § 55 (2002). The Barters have not presented any evidence indicating that their predecessor in title conveyed to them any interest in the roadway and the boat ramp.

Although the Barters provide authority for the legal principle that a servient estate may place a gate across an easement, see Hammond v. Lovvorn, 16 So.3d 813 (Ala.Civ.App.2009), that principle does not assist the Barters. The trial court determined that the April 1999 quitclaim deed conveyed fee-simple title to the roadway and the boat ramp, and we have affirmed that legal conclusion; thus, the right of the servient-estate holder to place a gate across an easemént provided that the easement is not unduly burdened has no application. Therefore, the evidence before the trial court established that Connell and the other subdivision lot owners own the roadway and the boat ramp and that the Barters have no right to erect a gate across the roadway.

Because the evidence presented at trial established that the April 1999 quitclaim deed conveyed fee-simple title in the roadway and the boat ramp to Connell and the other subdivision lot owners, the summary judgment declaring that Connell and the other defendants own the roadway and the boat ramp is affirmed. Furthermore, because the trial court determined that the April 1999 quitclaim deed conveyed fee-simple title to Connell and the other subdivision lot owners, who were the original grantees, it also necessarily determined that the Barters did not hold any interest in the roadway and the boat ramp. Accordingly, the trial court properly entered a summary judgment in favor of Connell on his counterclaim seeking an injunction requiring the Barters to remove the gate across the roadway. The summary judgment is therefore affirmed in its entirety.

AFFIRMED.

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

      . A total of 60 defendants were named, but it appears that defendant number 36 was later named as defendant number 60, so the action actually involved only 59 defendants.

      . The record contains two deeds conveying the roadway and the boat ramp. The first deed describes the roadway and the boat ramp by use of those terms and by reference to the subdivision plat. The second deed gives a legal description of the property by metes and bounds. No party contends that the deeds do not convey identical property.

      . The trial court entered a summary judgment in favor of the defendants on all claims made in the Barters’ complaint. On appeal, the Barters raise arguments as to only those claims relating to the ownership of the roadway and the boat ramp and their right to place a gate across the roadway. They do not raise any arguments relating to the summary judgment insofar as it disposed of their nuisance claim. Thus, we affirm the summary judgment insofar as it disposed of the Barters' nuisance claim. Edosomwan ex rel. Edosomwan v. A.B.C. Daycare & Kindergarten, Inc., 32 So.3d 591, 593 (Ala.Civ.App.2009) (citing Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003)) (stating that issues not raised and argued in brief are waived and affirming a summary judgment insofar as it related to claims about which the appellant had failed to raise an argument on appeal).

      . We note that the record contains a document that appears to reflect the chain of title to Lot 39, originating with the Meadowses and culminating in Mawal, Inc., the predecessor in title to the Barters. It appears that the document might have been submitted by the Barters, but the record is not clear on that point. In any event, no party moved to strike the document, and, although it is clearly hearsay evidence of the chain of title, it could have been considered by the trial court. See Chatham v. CSX Transp., Inc., 613 So.2d 341, 344 (Ala.1993) (stating that "[a] party must move the trial court to strike any nonadmissible evidence that violates Rule 56(e),” Ala. R. Civ. P., and that "[failure to do so waives any objection on appeal and allows [an appellate court] to consider the defective evidence”). Furthermore, at one of the hearings on the summary-judgment motion, the attorney for the Barters states that Burlin Meadows conveyed the roadway and the boat ramp "to keep h[im] and his wife from being liable if somebody got hurt down there,” indicating that the Barters conceded that the Meadowses owned the property before they conveyed it in the April 1999 quitclaim deed.

      . In their briefs in opposition to Connell’s summary-judgment motion, the Barters mere- ■ ly asserted that Connell and the other subdivision lot owners held only an easement in the roadway and the boat ramp; the Barters first supported this assertion with legal argument and authority in their postjudgment motion. However, because the record reflects that the Barters did maintain, albeit with no legal support, that the April 1999 quitclaim deed conveyed only an easement, we will consider the more developed argument they make on appeal.

      . The entire argument on this issue made to the trial court was as follows:
      "One of those requirements is that the deed has to be delivered. The question here is how do you deliver a deed to 54 different unsuspecting grantees. The only argument to accomplish delivery would be that the deed was recorded. The next question is can you give somebody something that they don’t want to have. The Alabama Supreme Court stated in the case of Blackmon v. Quennelle, 189 Ala. 630, 66 So. 608 (Ala.1914) that 'A deed is but an executed contract of sale.’ It is basic law of contracts that to have a valid contract there has to be a meeting of the minds. There is no dispute in the case at bar that there was no meeting of the minds. The unsuspecting lot owners had no knowledge that the original developers, in an effort to avoid liability, were deeding the boat ramp to them and had not inquired if they ever wanted to be an owner of the boat ramp.”
      The argument presented in the Barters’ brief on appeal consists of one paragraph in which they state the general rule that delivery of a deed is required; state, without citation to supporting authority, that the recording of a deed "in certain instances” can function as delivery; and then argue, in one sentence, without citation to supporting authority, that the failure of some of the defendants to answer and that the answers of some of the defendants indicating that they did not claim and interest in the roadway and the boat ramp should prevent the application of that rule in the present case.

      . In their brief on appeal, the Barters also argue the legal principle that a cotenant in possession may safeguard his or her property with locks provided he does not oust his co-tenants. See Spiller v. Mackereth, 334 So.2d 859 (Ala.1976) (holding that a cotenant who complained that another cotenant in possession had placed locks on a building owned in common had not proven ouster because of a lack of evidence that the cotenant in possession intended to exclude his cotenants by use of the locks). As noted previously, this particular argument was not presented to the trial court until the Barters filed their post-judgment motion. Therefore, we need not consider this argument. However, even if we did consider this argument despite its tardy postjudgment assertion by the Barters, we would conclude that it lacks merit. The trial court’s determination that the "original grantees,” which would include the Barters' predecessors in title, hold fee-simple title to the roadway and the boat ramp necessarily determines that the Barters are not cotenants in the roadway and the boat ramp.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    JPMORGAN CHASE BANK, N.A. v. Margaret BRADSHAW et al.
    2110999.
    Court of Civil Appeals of Alabama.
    April 5, 2013.

      Sara Anne Ford and Madeline H. Haika-la of Lightfoot, Franklin & White, L.L.C., Birmingham, for appellant.
    Kathy A. Kane, pro se.
   PITTMAN, Judge.

JPMorgan Chase Bank, N.A. (“Chase”), appealed to the Supreme Court of Alabama from the denial of its motion, filed pursuant to Rule 60(b), Ala. R. Civ. P., for relief from a judgment of the Russell Circuit Court entered in favor of Margaret Bradshaw and Pamela Ann Hagler on April 5, 2011. The supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975. We reverse and remand.

On November 23, 2010, Kathy Kane, acting pro se, filed a complaint in the Russell District Court, alleging that Bradshaw and Hagler were wrongfully occupying a dwelling located on Kathleen Circle in Phenix City — property that, Kane asserted, she had purchased from Deborah A. Skiles and Brisbin M. Skiles on June 29, 2009. Hagler, also acting pro se, filed an answer, denying the material allegations of the complaint and asserting that the Kathleen Circle property had been the home she had shared with her husband, Brisbin Skiles, and their two minor children since 1998; that Kane was her husband’s girlfriend; and that a court had awarded the Kathleen Circle property to Hagler and her children on January 16, 2009. Following a hearing, the district court dismissed the complaint. Kane appealed to the Russell Circuit Court for a trial de novo.

In the circuit court, Kane, Hagler, and Bradshaw proceeded pro se. Bradshaw moved to dismiss Kane’s complaint, attaching a January 16, 2009, order that had been entered in a protection-from-abuse proceeding that Hagler had instituted against Brisbin Skiles in the Russell Family Court. The family court’s 2009 order had determined, among other things, that Hagler and Brisbin Skiles had lived together with their two minor children at the Kathleen Circle property for 12 years and that the children were dependent because Hagler was in jail and Skiles was living in Florida. The family court had awarded custody of the children to Hagler; had ordered Skiles to pay child support; had placed the children with Bradshaw while Hagler was incarcerated; had “awarded [Hagler] exclusive possession of the [Kathleen Circle property] for her use and the use of the minor children until further orders of the court”; and had set the case for further review after the completion of home studies.

The circuit court denied Bradshaw’s motion to dismiss and conducted a bench trial on April 4, 2011. At that trial, Kane presented a warranty deed, dated June 29, 2009, from Brisbin M. Skiles, a single man, and Deborah A. Skiles, a single woman (who was apparently a former wife of Bris-bin Skiles), conveying the Kathleen Circle property to her. She also presented an instrument evidencing her mortgage of the property to Amerisave Mortgage Corporation (“Amerisave”). The circuit court admitted those documents, and the following occurred:

“THE COURT: All right. Now, have you been making all your payments?
“MS. KANE: Yes.
“THE COURT: And you make your payments to whom?
“MS. KANE: To Chase.
“THE COURT: And this is the mortgage?
“MS. KANE: Correct. And I have a letter from Chase showing that I’ve paid since August 2009, and I’m presently still paying. This just is activity through June of 2010. I just asked them to print out all my payments up to that point.
“THE COURT: Okay. Now, have you been making payments since then, as well?
“MS. KANE: Yes, I am, and I’m up to date on my payments.
“THE COURT: All right.”

The court then asked Hagler “how [she] claimed possessory rights to the [Kathleen Circle] property.” Hagler asserted that she and Brisbin Skiles had lived together for 13 years, that she had filed a complaint for a divorce from Skiles but that no divorce judgment had been rendered, and that the Russell Family Court had awarded her possession of the Kathleen Circle property. The circuit court reviewed the January 16, 2009, family-court order and stated that Hagler had received only “temporary possession” of the property “until further orders of the court” — not a “final property settlement.” The following then occurred:

“THE COURT: Let me ask Ms. Hagler a question, please, because this whole thing boils down to one issue. Were you, indeed, at one time common law married tó Mr. Skiles?
“MS. HAGLER: Yes, sir.
“THE COURT: And that’s the issue.
“MS. HAGLER: Yes, sir.
“THE COURT: And [the Russell Family Court judge] made a finding of fact that y’all had' lived together [on] Kathleen Circle. He further made a finding of fact, I think you had been together, didn’t I see somewhere in here, for 12 years?
“MS. HAGLER: Yes, sir.
“THE COURT: When did y’all start living together?
“MS. HAGLER: In ’98.”

After questioning Hagler, the circuit court announced its ruling from the bench:

“If, indeed, and it appears here that [the Russell Family Court judge] found that [Hagler and Skiles] were living together ... which means that they were common law, the only way to sever that relationship is with a divorce. Consequently, [Hagler] had homestead rights. Mr. Skiles ... did not have the power to transfer [the Kathleen Circle] property without Ms. Hagler’s signature. Now, [Ms. Kane,] you’ve got a fraudulent transfer to you is my ruling here, so you may want to get you an attorney and see what you’re going to do about it. But based on what I have in front of me, I’m going to have to rule for the defendants in this case, Ms. Bradshaw and Ms. Ha-gler. All right. You have 42 days to appeal. Thank you.”

On April 5, 2011, the circuit court entered a judgment in favor of Hagler and Bradshaw that contained no findings of fact or conclusions of law. Acting pro se, Kane appealed to this court from that judgment. We affirmed the judgment on January 6, 2012, without issuing an opinion. See Kane v. Bradshaw (No. 2100702, January 6, 2012), — So.3d-(Ala.Civ.App.2012) (table). On March 6, 2012, Chase sought, and this court granted, leave to file a Rule 60(b) motion in the circuit court; such a motion was necessary because Kane’s appeal (ease no. 2100702) was still pending in this court on Kane’s application for rehearing. See Rule 60(b) (“Leave to make the motion need not be obtained from any appellate court except during such time as an appeal from the judgment is actually pending before such court.”). After this court overruled Kane’s application for rehearing, Kane sought cer-tiorari review in the Supreme Court of Alabama. The supreme court denied the petition for the writ of certiorari on May 11, 2012, and this court issued its certificate of judgment the same day.

On March 7, 2012, Chase filed a Rule 60(b) motion, seeking to set aside the circuit court’s April 5, 2011, judgment and to be joined as an indispensable party to the action. Chase asserted that it was the servicing agent for the successor in interest to Amerisave, from whom, it alleged, Kane had borrowed $88,250 to purchase the Kathleen Circle property and in favor of whom, it alleged, Kane had executed a promissory note and mortgage. Chase also asserted that it had first learned of the circuit court’s April 5, 2011, judgment on November 25, 2011, when its legal department had received a copy of the brief of the appellees, Hagler and Bradshaw, in case no. 2100702.

Chase alleged that, initially, it had been advised by counsel that, because the judgment summarily dismissing Kane’s claims had not addressed the validity of Kane’s deed or Kane’s title to the mortgaged property, its mortgage interest in the property would not be affected by the judgment. Chase asserted that it had sought a second opinion from other counsel, who had reviewed the transcript of the circuit-court proceedings underlying the appeal in case no. 2100702 and had concluded that the circuit court’s ruling from the bench implicated the validity of Kane’s title to the property and, thus, directly affected Chase’s mortgage interest in the property. Chase attached to its motion a transcript of the underlying proceedings in case no. 2100702; the warranty deed to Kane dated June 29, 2009; the note and mortgage that Kane had executed in favor of Amerisave bn the same date; and the affidavit of Chase’s vice president, Thomas E. Reardon. On March 23, 2012, the circuit court summarily denied Chase’s motion without a hearing.

On appeal, Chase argues that the circuit court erred in denying its Rule 60(b) motion because, it says, the April 5, 2011, judgment is void for failure to join it as an indispensable party pursuant to Rule 19(a), Ala. R. Civ. P. Kane filed an appellate brief in support of Chase’s position. Ha-gler and Bradshaw have not favored this court with a brief.

“Rule 60(b), Ala. R. Civ. P., provides that a trial court may relieve a party from a final judgment or order for certain reasons, including that the order is ‘void.’ See Rule 60(b)(4), Ala. R. Civ. P. The denial of a Rule 60(b) motion is appealable, see Food World v. Carey, 980 So.2d 404, 406 (Ala.Civ.App.2007), but an appeal from such a denial presents for review only the propriety of that denial; thus, when a motion for relief, such as that filed in this case, attacks an order as being void, the controlling inquiry may be stated as follows: ‘If the judgment is void, it is to be set aside; if it is valid, it must stand.’ Smith v. Clark, 468 So.2d 138, 141 (Ala.1985).”

Palisades Collection, LLC v. Delaney, 29 So.3d 885, 886 (Ala.Civ.App.2009) (footnote omitted).

Alabama appellate courts have on several occasions addressed the issue whether the nonjoinder of a mortgagee in an action relating to real property dictates that a judgment affecting the mortgagee’s interest in the property be set aside as void. In Rollan v. Posey, 271 Ala. 640, 126 So.2d 464 (1961), our supreme court held that the failure to have joined a mortgagee in a boundary-line dispute between adjoining landowners required reversal of the judgment. The mortgage had been admitted in evidence at trial but no party had sought to join the mortgagee. The court stated:

“The general rule in a court of equity is that all persons having a material interest, legal or equitable, in the subject matter of a suit, must be made parties, either as plaintiffs or defendants. The rule proceeds on the principle that no man’s rights should be controverted in a court of justice unless he has full opportunity to appear and vindicate them; and further, that complete justice may be done and future litigation avoided, the performance of the decree being safe, because of the presence in court of all parties who have an interest in its subject matter. The general rule further is that if a bill is defective for the want of proper parties, advantage should be taken of the defect by plea, demurrer, or answer, and if not so taken, the objection is waived. The rule is subject to the exception that if a cause cannot be properly disposed of, on the merits, without the presence of the absent parties, the objection may be made at the hearing, or on error, it may be taken by the court ex mero motu.”

271 Ala. at 645, 126 So.2d at 468-69.

In J.R. McClenney & Son, Inc. v. Reimer, 435 So.2d 50 (Ala.1983), our supreme court held that a defendant was “estopped ... from raising [by way of Rule 60(b)(4), after the time for appeal had expired,] the issue of its own mortgagee’s nonjoinder,” id. at 52, in a boundary-line dispute because, at trial, the defendant, who had been aware of the mortgagee’s status from the outset of the litigation, had established his title to the property “ ‘without ... suggestion of a mortgage.’ ” Id. at 51 (quoting trial court’s order). The court stated:

“That the mortgagee was not made a party does not, under these facts, compel the vacation of the final judgment. The failure to join an indispensable party does not compel the dismissal of the complaint in every instance. Wright and Miller, Federal Practice and Procedure, Civil, § 1611 (1972), notes that ‘[bjeeause the doctrine of indispensable parties is equitable in character, the court will not dismiss for nonjoinder when special circumstances would make it unequitable to do so.’ ”

Id. at 52. The court continued:

“There is no prescribed formula to be mechanically applied in every case to determine whether a party is an indispensable party or merely a proper or necessary one. This is a question to be decided in the context of the particular case. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968). The issue is one to be decided by applying equitable principles and, under the circumstances of this case, it would be inequitable to vacate this judgment on motion of the defendant, which has so blatantly ignored the rules under which its mortgagee bank could have so easily been made a party.”

Id.

In Frander & Frander, Inc. v. Griffen, 457 So.2d 375 (Ala.1984), residents of a subdivision sought injunctive relief against mortgagors, alleging that the mortgagors had violated a restrictive covenant by assembling a manufactured home on their lot. The trial court issued the injunction and the mortgagors appealed, arguing that the failure to have joined their mortgagee as an indispensable party rendered the trial court’s judgment void. Our supreme court disagreed, first explaining the difference between an indispensable party and a necessary party as follows:

“ ‘Indispensable parties’ are persons who not only have an interest in the controversy but an interest of such a nature that a final decree cannot be made without either affecting that interest or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience.
“ ‘Necessary parties’ are those affected by the judgment and against which in fact it will operate.”

457 So.2d at 377 (quoting 1 Champ Lyons, Alabama Practice, Rules of Civil Procedure, at 389 (1973) (citations omitted)). The court concluded:

“We are unable to see how [the mortgagee] could be called an indispensable party in this instance. Even though not a party to the action, [the mortgagee’s] interests have been protected by the mortgagors ... since they are seeking the same result as [the mortgagee]. This would not make [the mortgagee] an indispensable party, but rather, at most, a necessary party, and thus an equitable judgment could be entered affecting [the mortgagee].”

Id. See also Hun Es Tu Malade? No. 16, LLC v. Tucker, 963 So.2d 55, 69 (Ala.2006) (citing Frander and holding that the mortgagee was not an indispensable party because the mortgagors were “present in [the] action to protect the mortgagee’s interests”).

The present case is like Rollan, supra, and unlike Reimer, supra, by virtue of the fact that Kane’s note and mortgage were admitted in evidence at trial. Not only was the circuit court made aware of the mortgage, but it also questioned Kane regarding her history of payments to Chase. Nevertheless, the circuit court did not, ex mero motu, order that Chase be joined, and none of the parties moved to join Chase. We attribute the parties’ failure to seek Chase’s joinder to the fact that they were proceeding pro se, and we believe that, for that reason, the decisions in Frander, supra, and Tucker, supra — holding that the mortgagees in those cases were not indispensable parties because their interests had been protected by the mortgagors — are of limited applicability. To hold that Kane had protected the interests of Chase under the circumstances of this case would be to engage in the very action that our supreme court disavowed in Reimer: using a “prescribed formula to be mechanically applied in every case to determine whether a party is an indispensable party or merely a proper or necessary one.” 435 So.2d at 52. Instead, our task is to determine, in the context of this particular case, whether Chase was “an indispensable party or merely a proper or necessary one.” Id.

The circuit court’s conclusion that Kane’s deed was the product of a fraudulent conveyance affected Chase’s interest in the mortgage to such a degree that the circuit court’s judgment was “ “wholly inconsistent with equity and good conscience.’ ” Frander, 457 So.2d at 377 (quoting Lyons, Alabama Practice, Rules of Civil Procedure, at 389 (1973)). Before the rendition of that judgment, Chase had no notice or opportunity to defend its mortgage interest. It appears that even Hagler and Bradshaw, who have not favored this court with a brief on this appeal, recognized that the judgment dramatically affected Chase’s mortgage interest, because in the prior appeal they argued: “The mortgage that Kathy A. Kane has with Chase Mortgage against the property is fraudulent and the property should be removed as collateral against this mortgage....”

Based on the foregoing authorities, we conclude that it would be inequitable not to reverse the circuit court’s judgment denying Chase’s Rule 60(b) motion because Kane’s action against Hagler and Bradshaw could not “be properly disposed of, on the merits, without the presence of [Chase].” Rollan, 271 Ala. at 645, 126 So.2d at 469. Under the circumstances of this case, Chase was, therefore, an indispensable party, and the circuit court erred in denying its Rule 60(b) motion. We reverse the circuit court’s March 23, 2012, judgment and instruct the circuit court on remand to vacate its April 5, 2011, judgment and to make Chase a party to Kane’s action against Hagler and Bradshaw.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . The appellees' brief in case no. 2100702 contains a certificate of service dated October 26, 2011, to "Chase Mortgage” at an address in Columbus, Ohio.-


author: JOINER, Judge.

text:
    Donald Richard DAY v. STATE of Alabama.
    CR-11-1397.
    Court of Criminal Appeals of Alabama.
    March 29, 2013.

      Dennis J. Knizley, Mobile, for appellant.
    Luther Strange, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   JOINER, Judge.

Donald Richard Day appeals his conviction for second-degree sexual abuse, see § 13A-6-67(a)(2), Ala.Code 1975. For the reasons stated below, we reverse and remand.

By way of an indictment the State charged that Day, “being sixteen years of age or older, did knowingly subject [J.L.S.], who at the time was less than twelve years of age, to sexual contact, to-wit: fondling her vagina with his hands, in violation of § 13A-6-66(a)(3) of the Code of Alabama.” (C. 22.)

After the State presented its case-in-chief, Day moved the circuit court for a judgment of acquittal on the basis that “there [was] no testimony that [Day] fondled [J.L.S.’s] vagina when she was under the age of twelve.” (R. 123.) The State agreed, but asserted that it had proved what it considered a lesser-included offense — second-degree sexual abuse. (R. 123.) In response, Day asserted that if the circuit court “grantfs] the judgment of acquittal then ... the case is over.” (R. 124.) The circuit court granted the motion for a judgment of acquittal, but allowed the trial “to go forward” on second-degree sexual abuse. (R. 125.) After the circuit court charged the jury but before the jury began its deliberations, Day objected to the second-degree-sexual-abuse instruction and again moved for a judgment of acquittal on the basis that second-degree sexual abuse was not a lesser-ineluded offense of first-degree sexual abuse. (R. 325.) The circuit court denied the motion, and the jury returned a verdict finding Day guilty of second-degree sexual abuse. (R. 326-27.)

On appeal, Day argues that the jury was improperly instructed on second-degree sexual abuse. (Day’s brief, pp. 9-10.) The State agrees that “the two offenses based on the ages of the victims are separate and distinct crimes each requiring proof of a certain age that the other does not require” and recognizes, “given the evidence, that Day stands convicted of an offense for which he was not charged.” (State’s brief, p. 11.)

The question presented to this Court is purely a question of law; thus, we review it de novo. Ex parte Peralta, 897 So.2d 1227, 1231 (Ala.2004).

Day was charged with first-degree sexual abuse, and the code section defining that offense states: “A person commits the crime of sexual abuse in the first degree if ... he, being 16 years old or older, subjects another person to sexual contact who is less than 12 years old.” § 13A-6-66(a)(3), Ala.Code 1975. Day was convicted, however, of second-degree sexual abuse, and the code section defining that offense states:

“(a) A person commits the crime of sexual abuse in the second degree if:
“(2) He, being 19 years old or older, subjects another person to sexual contact who is less than 16 years old, but more than 12 years old.”

§ 13A-6-67(a)(2), Ala.Code 1975.

In Alabama, “Specification of an offense in an indictment or information shall constitute a charge of that offense and of all lesser offenses necessarily included therein.” Rule 13.2(c), Ala. R.Crim. P. Regarding lesser-included offenses, § 13A-1-9, Ala.Code 1975, states:

“(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
“(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or
“(2) It consists of an attempt or solicitation to commit the offense charged or to commit a lesser included offense; or
“(3) It is specifically designated by statute as a lesser degree of the offense charged; or
“(4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.”

Day argues, and we agree, that with respect to this case second-degree sexual abuse under § 13A-6-67(a)(2) does not require the same or fewer facts to establish the commission of first-degree sexual abuse under § 13A-6-66(a)(3), but different and additional facts. Likewise, with respect to this ease, second-degree sexual abuse under § 13A-6-67(a)(2) is not “an attempt or solicitation to commit the offense charged or to commit a lesser-included offense”; it is not “specifically designated by statute as a lesser degree of the offense charged”; and it does not “differ ... only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.” § 13A-l-9(a)(l)-(4), Ala. Code 1975.

As it pertains to this case, second-degree sexual abuse under § 13A-6-67(a)(2), Ala.Code 1975, is not a lesser-included offense of § 13A-6-66(a)(3), Ala.Code 1975. See generally Allen v. State, 472 So.2d 1122, 1125-26 (Ala.Crim.App.1985) (“The age factor necessarily distinguishes these two offenses and makes them separate and distinct crimes. The offenses of first and second degree rape each require proof of a certain age of the victim that the other does not require. Because of this difference, you cannot commit second degree rape while committing first degree rape.”). Accordingly, the circuit court should not have charged the jury on second-degree sexual abuse, and Day was unlawfully convicted of the offense.

Therefore, we reverse Day’s conviction and sentence and remand this matter for proceedings consistent with this opinion. We note that the circuit court granted Day’s motion for a judgment of acquittal on the indicted offense of first-degree sexual abuse; thus Day, having been acquitted of that offense, cannot be retried for that offense. Wright v. State, 902 So.2d 720, 722-23 (Ala.Crim.App.2004).

REVERSED AND REMANDED.

WINDOM, P.J., and WELCH and BURKE, JJ., concur.

KELLUM, J., concurs in the result.

      . On appeal, Day asserts that ‘‘[t]he indictment ... had erroneous [wording]” because, he says, the indictment charged Day with "a violation of section 13A-6-66(a)(3), which is no longer a code section in the Code of Alabama." (Day's brief, p. 9.) According to Day, he should have been indicted under § 13A-6-69.1, Ala.Code 1975. Likewise, the State on appeal references § 13A-6-69.1, Ala.Code 1975, not § 13A-6-66(a)(3), Ala.Code 1975.
      "It is well settled that the law in effect at the time of the commission of the offense controls the prosecution.” Minnifield v. State, 941 So.2d 1000, 1001 (Ala.Crim.App.2005). Day was accused of sexual contact with a victim who, at the time of the offense, was less than 12 years of age; the victim, J.L.S., was born in 1992, and thus, was less than 12 until sometime in 2004. Section 13A-6-66(a)(3), Ala.Code 1975, was in effect during this time and, accordingly, was the proper section under which to charge Day.

      . Because we reverse his conviction and sentence based on the lesser-included offense rational, we do not address the other issue he raises on appeal.


author: PARIENTE, J.,

text:
    FLORIDA BOARD OF BAR EXAMINERS re B.U.U.
    No. SC13-446.
    Supreme Court of Florida.
    Oct. 10, 2013.
   The Florida Board of Bar Examiners (Board) has filed a “Report and Recommendation” regarding the application of B.U.U. (Applicant) for admission to The Florida Bar (the Bar). We have jurisdiction. See art. V, § 15, Fla. Const. The Board recommended that Applicant be conditionally admitted to the Bar subject to numerous terms and conditions. The Court, however, disapproves the Board’s recommendation and finds that Applicant should not be conditionally admitted to the Bar at this time.

In 1998, Applicant received the degree of Juris Doctor. In 2010, Applicant executed an application for admission to the Bar and successfully completed all parts of the Florida Bar Examination in 2011. However, during the Board’s investigation, certain items of information that reflected adversely upon Applicant’s character and fitness were discovered by the Board. After holding an investigative hearing in 2011, the Board determined that Specifications should be prepared and served upon Applicant, and the matter of Applicant’s character and fitness should be considered at a formal hearing. The Office of General Counsel served the Specifications in May 2012, and Applicant filed an answer in June 2012. Applicant and her counsel appeared at a formal hearing in November 2012. At the hearing, the Board considered four Specifications.

Specification 1 alleged that Applicant demonstrated financial irresponsibility or a lack of respect for the law or the rights of others, as evidenced by the following: (A) During the past twelve years, Applicant had consistently been delinquent in her payments to approximately twelve creditors. Despite sufficient income to meet financial obligations, Applicant simply failed and refused to timely pay these creditors and allowed these debts to become delinquent. (B) During the past twelve years, Applicant had been delinquent in repayment of both federal student loans and private student loans that were used by her to obtain her legal education. Applicant’s student loans had been repeatedly delinquent by more than ninety days on numerous occasions and delinquent as recently as October 2010. (C) During the past ten years, Applicant failed and refused to comply with federal tax laws and regulations as evidenced by the failure to timely file federal income tax returns for tax years 2003 and 2007; and the failure to timely pay federal income taxes owed for tax years 2002, 2004, 2005, and 2006.(D) During the past ten years, Applicant failed and refused to comply ■with State of California laws and regulations as evidenced by the failure to timely file State of California income tax returns for tax years 2005 and 2007, and the failure to timely pay State of California income taxes for tax years 2004, 2005, 2006, and 2007.(E) Applicant and her spouse filed a petition for bankruptcy protection under Chapter 13 of the Bankruptcy Code. A confirmation order was issued on May'l, 2007. After the bankruptcy court issued a confirmation order that approved a payment plan, Applicant voluntarily resigned from her employment and moved abroad. While living abroad, Applicant and her spouse failed and- refused to make scheduled payments as agreed in the payment plan for her bankruptcy. Between June 2008 and December 2009, the bankruptcy trustee filed six separate motions to dismiss the bankruptcy case because Applicant was in default. On March 2, 2010, the bankruptcy court dismissed the bankruptcy case due to Applicant’s failure to make the scheduled payments. Applicant and her spouse had sufficient income to make the scheduled bankruptcy payments, but failed to make the required payments.

Specification 2(A) alleged that Applicant provided responses that were false, misleading, or lacking in candor with regard to Item 14.a. of her Florida Bar Application. Item 14.a. asks whether the applicant, within the past five years, has been delinquent by more than ninety days in the payment of any tax, credit obligation, judgment, or other indebtedness. Applicant disclosed twenty credit accounts and gave explanations as to why those obligations became delinquent. The Board found that Applicant and her spouse had sufficient income to pay the creditors, but that she willingly failed to do so and chose to spend her earnings on other purchases and to finance the construction of a residence abroad.

Specification 2(B) alleged that Applicant provided a response that was false, misleading, or lacking in. candor with regard to Item 102.a. of her Florida Bar Application, which asked her to provide an explanation for leaving her previous employment. Applicant claimed that she terminated employment with a previous employer because of her spouse’s employment transfer .to California. Instead, the Board found that Applicant left this employment because she claimed that her previous employer was sexually harassing her, that her employer was a difficult person to work for, and because the employer once yelled at her in public.

Specification 3 alleged that Applicant provided a response that was false, misleading, or lacking in candor with regard to Items 14.a. and 14.b. of her Florida Bar Application. Applicant falsely testified that her spouse’s unemployment prevented her from being able to pay her creditors. Instead, the Board found that Applicant clearly had ample income to pay her creditors, but willfully chose not to make those payments.

Specification 4 alleged that Applicant has suffered from a major depressive disorder since at least 2003. This disorder has resulted in serious impairment in the past and, if not treated effectively, would likely have a significant impact on Applicant’s ability to practice law in a competent or professional manner. During the past ten years, Applicant has been hospitalized on at least two occasions because of her major depressive disorder. In addition, Applicant attempted suicide more than once.. Since 2003, Applicant has only intermittently complied with medication treatment. At the time of the investigative hearing, Applicant was having her psychiatric medications managed by her primary care physician. At the time of the hearing, Applicant was not being treated by a mental health professional. During the hearing, Applicant testified that she had an appointment with her primary care provider the following week to discuss a referral to a psychiatrist. As of the date of the Specifications, Applicant had not amended Item 26.b. of her Florida Bar Application to disclose treatment with a psychiatrist for her major depressive disorder. This Specification alleged that Applicant’s history of noncompliance with the prescribed treatment of this disorder evidences a lack of effective treatment of the disorder, and Applicant has not established that she can satisfy the Essential Eligibility Requirements for the practice of law contained in rule 3-10.1 of the Rules of the Supreme Court Relating to Admissions to the Bar (Rules).

Upon consideration of Applicant’s formal hearing presentation, the Board found that the first three Specifications, which seriously impacted her character and fitness, were all proven. The Board found that there was mitigation evidence presented by Applicant. Importantly, the Board also found that Applicant’s formal hearing presentation failed to establish rehabilitation by clear and convincing evidence as required by rule 3-13 of the Rules. Notwithstanding these findings, the Board inconsistently concluded that the total lack of proof of rehabilitation did not render Applicant unqualified for admission to the Bar. Surprisingly, and contrary to existing Florida law, the Board found that Specifications 1-3, even though clearly proven, were not disqualifying. Consequently, the Board recommended her for conditional admission to the Bar for only one year.

Upon consideration of the findings of fact provided in the Report and Recommendation, this Court disapproves the Board’s recommendation for conditional admission. Although Applicant attempted to provide explanations for some of her misconduct, the Bar must not become a haven for those who have clearly violated the law repeatedly and, in addition and further aggravation, provided information that is totally false, misleading, and lacking in candor. Applicant’s refusal to repay her financial obligations, willful refusal to comply with state and federal law, and failure to provide full and complete candor in her application for admission call into serious question her judgment and ability to serve as an officer of our courts. Furthermore, we have held on multiple occasions that the failure to timely file or pay income taxes, in particular, merits disbarment or a denial of re-admission to the Bar, and we will not provide an exception here. See Florida Bar v. Behm, 41 So.3d 136, 147 (Fla.2010) (ordering permanent disbarment for intentional failure to file income tax returns and to pay income taxes); Florida Bd. of Bar Exam’rs re Marks, 959 So.2d 228, 234 (Fla.2007) (disapproving the Board’s finding that a failure to pay federal income taxes for numerous years was not disqualifying and the Board’s recommendation that the applicant be re-admitted to the Bar); Florida Bd. of Bar Exam’rs re Papy, 901 So.2d 870, 872 (Fla.2005) (approving the Board’s recommendation that the applicant be denied re-admission to the Bar in part because of his failure to timely file and pay income taxes); Florida Bd. of Bar Exam’rs re M.A.R., 755 So.2d 89, 92-93 (Fla.2000) (approving the Board’s recommendation that the applicant be denied admission to the Bar in part because of his failure to timely file and pay income taxes); Florida Bar v. Nedick, 603 So.2d 502, 503 (Fla.1992) (ordering disbarment for evading or defeating tax in violation of federal law and conviction of tax evasion); Florida Bd. of Bar Exam’rs in re H.H.S., 373 So.2d 890, 892 (Fla.1979) (holding that a failure to file tax returns may properly be considered in determining whether the applicant has met the standards of conduct and fitness required under the Rules).

Compliance with the requirements of all tax laws is an issue this Court has viewed, and continues to view, very seriously. We have consistently held that lawyers, as guardians of the law, have a very special obligation to not only honor but comply with the law, and this includes applicable tax laws. In this case we are not considering a single violation of law but a series of willful and flagrant refusals to obey the law together with a lack of candor and truthfulness. The time for accountability is now. We have disciplined, suspended, and disbarred lawyers with only tax law violations in cases such as Behm, 41 So.3d at 151; Florida Bar v. Del Pino, 955 So.2d 556, 563 (Fla.2007); Florida Bar v. Smith, 650 So.2d 980, 982 (Fla.1995); Nedick, 603 So.2d at 503-04; Florida Bar v. Weed, 559 So.2d 1094, 1096 (Fla.1990); and Florida Bar v. Hosner, 536 So.2d 188, 188 (Fla.1988). There is no authority existing in Florida which dictates that we should allow admission of this Applicant. In fact, to permit admission under these circumstances would strike a blow to and undermine our efforts to preserve the necessary standards of character and fitness for admission to the Bar. If Applicant wishes to apply again, she will need to show significant rehabilitation in addition to an ability to honor all of her financial obligations.

Consequently, we disapprove the Board’s recommendation that Applicant be admitted or conditionally admitted at this time. Any further consideration of this Applicant for admission may not occur until after three years from the date of this decision.

No rehearing will be entertained by this Court.

It is so ordered.

POLSTON, C.J., and LEWIS and LABARGA, JJ., concur.

CANADY, J., concurs in result.

PARIENTE, J., dissents with an opinion in which QUINCE and PERRY, JJ., concur.

PARIENTE, J.,

dissenting.

I respectfully dissent from the order disapproving the recommendation of the Florida Board of Bar Examiners (Board) to grant B.U.U. conditional admission and further not allowing B.U.U. to reapply for admission to The Florida Bar for three years. This decision is too harsh considering the circumstances of B.U.U.’s case. Instead, I would increase B.U.U.’s period of conditional admission from one year to three years, requiring strict monitoring and strict compliance with the terms of the Consent Agreement.

Granting conditional admission as recommended by the Board is reasonable, considering that B.U.U. became and is presently a member of the California Bar, after graduating from Stetson University College of Law and receiving her Juris Doctor in 1998, as well as the other circumstances set forth in the Board’s Report and Recommendation. B.U.U. filed a Florida Bar Application in October 2010 and successfully completed all parts of the Florida Bar Examination in August 2011, so the process of evaluating her character and fitness has spanned three years. The three-year period that the Court now sets during which B.U.U. is precluded from reapplying for admission will almost certainly require her to retake the Florida Bar Examination, which has a time limit of five years.

Despite initial concerns about B.U.U.’s financial stability, the Board concluded after a hearing that although she and her husband experienced financial difficulties, it appeared that her husband, from whom she is now separated, was the major cause of the financial problems. This, of course, does not excuse B.U.U. from responsibility for any past financial problems, but it is undisputed that she is now current with her past-due federal income taxes and her past-due California taxes and that she has an arrangement to repay her student loans at the rate of $1,450 per month. Therefore, the Board found the specification related to her finances not to be disqualifying in light of the mitigation presented.

The major concern that the Board continued to have was B.U.U.’s diagnosis of a major depressive disorder and a history of noncompliance with prescribed treatment. However, a mental health professional offered testimony that B.U.U. was “stable behaviorally and emotionally,” that her depressive situation was “circumstantial, not a character trait,” and that she was “working hard and diligently to build her sense of self so that she will make better choices and improve herself.” In addition to the mental health professional’s opinion, a medical report from Dr. Kenneth Pages stated that B.U.U. was in a state of remission from her depression and “has been on a stable, modest medication regimen [sic] that has been effective and well tolerated.” Accordingly, the Board did not find B.U.U.’s mental health problems to be disqualifying. Finally, the Board heard from attorney Andy Dogali, B.U.U.’s employer since June 2011, who testified that he had not had problems, and had no concerns, with B.U.U.’s candor.

The Board recommended conditional admission for a period of one year during which, as a condition of probation, B.U.U. would be required to comply with her Board contract, continue to consult with Dr. Pages or another mental health provider at least monthly and follow all instructions as to the proper treatment, and ensure that her mental health provider would submit quarterly reports to The Florida Bar during the entire term of probation, along with meeting other standard conditional admission provisions.

Although I also take seriously this Court’s role in ensuring that attorneys honor and uphold the law and that applicants meet the necessary standards of character and fitness for admission to the Bar, I dissent from the Court’s decision to deny B.U.U. admission and preclude her from reapplying for three years. Considering all of the circumstances, this decision appears to me to be unduly harsh, unwarranted, and unprecedented. For those reasons, I respectfully dissent.

QUINCE and PERRY, JJ., concur.