author: MOORE, Judge.

text:
    John A. DAUGHERTY and Cheryl A. Daugherty v. Brenda M. CAMPBELL et al.
    2120844.
    Court of Civil Appeals of Alabama.
    March 21, 2014.
    Certiorari Denied May 16, 2014 Alabama Supreme Court 1130739.

      Peter J. Davis, Birmingham; and Cheryl A. Daugherty and John A. Daugherty of Daugherty & Daugherty, Vestavia Hills, for appellants.
    Patrick 0. Miller of Dick & Miller, P.C., Huntsville, for appellee.
   MOORE, Judge.

John A. Daugherty and Cheryl A. Daugherty appeal from a summary judgment entered by the Jefferson Circuit Court in favor of Brenda M. Campbell, Tavares Ward, Sr., Reli Title, LLC, and Stewart Title Guaranty Company. We affirm.

Background

On June 8, 2007, the Jefferson District Court entered a default judgment (“the 2007 judgment”) in the amount of $10,000 in favor of Cheryl against Tavares Ward, Sr., Tavares Ward, Jr., Lomb Avenue Automotive, and Five Star Automotive; that judgment arose from automotive repairs that Cheryl had sought from the defendants for her vehicle and that Cheryl claimed had not been performed correctly. On August 8, 2007, Cheryl recorded the 2007 judgment in the Jefferson Probate Court.

On July 24, 2008, Tavares Ward,' Sr. (hereinafter “Ward”), through legal counsel, filed a motion in the district court, seeking to set aside, pursuant to Rule 60(b), Ala. R. Civ. P., the 2007 judgment as to him. In support of that motion, he asserted that he had never been served with the summons and complaint in the original action; that, as a result, the 2007 judgment was void as to him; and that Cheryl had recorded the 2007 judgment, thereby encumbering real property for which he currently had a pending sales contract. Cheryl opposed that motion. On August 4, 2008, after a hearing, the district court set aside the 2007 judgment against Ward.

On August 15, 2008, Cheryl timely filed in the circuit court a petition seeking mandamus review of the district court’s order granting Ward’s Rule 60(b) motion. On August 29, 2008, after Cheryl had filed her mandamus petition in the circuit court, Ward executed a warranty deed conveying real property located in Jefferson County (“the property”) to Campbell. On September 2, 2008, Campbell recorded the warranty deed she had received from Ward in the probate court. As part of the conveyance from Ward to Campbell, Reli Title and Stewart Title issued title-insurance policies, but they did not note or except from coverage the 2007 judgment against Ward that Cheryl had recorded in the probate court.

On March 18, 2009, the circuit court entered a judgment finding that Ward had been served with the summons and complaint in the district-court action. As a result, the circuit court found that the district court had properly entered the 2007 judgment against Ward and it “revived” and reinstated the certifícate of judgment previously recorded by Cheryl.

On June 10, 2012, the Daughertys filed this action in the circuit court. In the complaint, as finally amended, they asserted a claim, pursuant to Ala.Code 1975, § 8-9A-1 et seq., known as the “Alabama Uniform Fraudulent Transfer Act,” against Ward, Campbell, Reli Title, and Stewart Title, and they sought a judgment declaring the priority of Cheryl’s judgment lien as to Campbell’s title to the property.

Reli Title and Stewart Title filed, pursuant to Rule 12(b)(6), Ala. R. Civ. P., separate motions seeking to dismiss the fraudulent-conveyance claim asserted against them in the first amended complaint. Reli Title and Stewart Title subsequently filed, pursuant to Rule 12(b)(6), a joint motion to dismiss the declaratory-judgment count asserted against them in the second amended complaint.

Campbell answered the complaint, asserting, among other things, that, pursuant to Ala.Code 1975, § 35-4-90(a), her deed had been recorded before the circuit court had revived Cheryl’s judgment lien against Ward and, therefore, that her deed had priority over Cheryl's lien. Campbell also asserted various affirmative defenses and a counterclaim, seeking a judgment declaring that she was a bona fide purchaser without notice of a valid lien at the time she acquired the property and that her title to the property had not been impacted by the circuit court’s subsequent reinstatement of the 2007 judgment against Ward. Alternatively, Campbell asserted that she was entitled to an equitable lien for the value of the improvements she had made to the property. Ward, who appeared pro se, answered the complaint denying all claims. Ward made no further effort to defend against the claims.

The Daughertys and Campbell filed competing summary-judgment motions, and the Daughertys sought to strike the affidavits submitted in support of Campbell’s summary-judgment motion. The circuit court granted the motions to dismiss that had been filed by Reli Title and Stewart Title. After a hearing on the summary-judgment motions filed by the Daughertys and Campbell, the circuit court entered a summary judgment in favor of Campbell, denied the summary-judgment motion filed by the Daughertys, denied the motion to strike filed by the Daughertys, and dismissed the action with prejudice. The circuit court provided no reasoning for the entry of its summary judgment. The Daughertys timely appealed.

Standard of Review

“ We review the trial court’s grant or denial of a summary-judgment motion de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala.2006). Once the summary-judgment movant shows there is no genuine issue of material fact, the nonmovant must then present substantial evidence creating a genuine issue of material fact. Id. “We review the evidence in a light most favorable to the nonmovant.” 943 So.2d at 795. We review questions of law de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala.2006).’ ”

Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 793 (Ala.2007) (quoting Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 842, 346 (Ala.2006)).

Analysis

On appeal, the Daughertys have not argued that the circuit court erred in entering a judgment in favor of all the defendants as to the fraudulent-conveyance claim, and, as a result, we deem that issue to have been waived. See, e.g., Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) (“When an appellant fails to argue an issue in its brief, that issue is waived.”).

The Daughertys also make no arguments specific to their claims asserted against Reli Title or Stewart Title, and, despite Reli Title’s and Stewart Title’s role as title insurers involved in the conveyance of the property between Ward and Campbell, the record fails to disclose any privity between the Daughertys and Reli Title and between the Daughertys and Stewart Title. We, therefore, affirm the circuit court’s dismissal of the claims asserted against Reli Title and Stewart Title. Finally, the Daughertys have not specifically addressed the claims asserted against Ward on appeal. We, therefore, affirm the circuit court’s judgment implicitly entered in favor of Ward as to all claims asserted against him.

In their brief filed with this court, the Daughertys argue only that Cheryl’s judgment lien against the property is entitled to priority over Campbell’s deed. The parties do not dispute that the 2007 judgment predated Campbell’s deed obtained from Ward in August 2008. It also is undisputed that Cheryl recorded the certificate of judgment in August 2007 while Campbell recorded her deed in September 2008.

In Pope v. Gordon, 922 So.2d 893, 896 (Ala.2005), our supreme court stated:

“A judgment creditor may ... create a lien on the judgment debtor’s property by obtaining a certificate of judgment from [any court of this state] and filing that certificate in the office of the judge of probate of any county. See Ala.Code 1975, § 6-9-210. This filing creates a lien on property of the judgment debtor in that county. See Ala.Code 1975, § 6-9-211.”

(Footnote omitted.) We, therefore, agree with the Daughertys that, by recording the certificate of judgment regarding the 2007 judgment in the probate court, Cheryl created a lien in her favor as to the property.

Subsequent to the creation of that judgment lien, however, the district court set aside the 2007 judgment entered against Ward on the basis that it was void due to lack of service upon Ward. Although Cheryl timely sought mandamus review of that ruling, “[t]he filing of a petition for a writ of mandamus against a trial judge does not divest the trial court of jurisdiction, stay the case, or toll the fun-ning of any period for obeying an order or perfecting a filing in the case.” Ex parte State (State v. Webber), 892 So.2d 869, 871 (Ala.2004). Because Cheryl’s mandamus petition did not stay the effect of the district court’s ruling, the 2007 judgment as to Ward was declared void and, as stated by the district court, was “held for naught” as of August 4, 2008.

In determining the effect of the district court’s ruling on Cheryl’s judgment lien, we find the following language in Duncan v. Gunter Ins. Agency (In re Duncan), 60 B.R. 345 (Bankr.M.D.Ala.1986), persuasive: “Since a judgment lien cannot exist independently of the judgment, such lien is discharged by the satisfaction and extin-guishment of the judgment.” Id. at 348 (citing 47 Am.Jur.2d Judgments § 995). See also Ogburn v. SouthTrust Bank (In re Ogburn), 212 B.R. 984, 986 (Bankr.M.D.Ala.1995) (“ ‘Without the debt there is nothing to secure and no basis for the lien.’ ” (quoting 1 David G. Epstein et al., Bankruptcy § 3-11, at 156 n. 27 (1992))). Because the district court vacated the 2007 judgment as to Ward in August 2008, the judgment lien that was created when Cheryl recorded the certifícate of judgment was discharged by operation of law. See 50 C.J.S. Judgments § 826 (2009) (“The [judgment] lien is extinguished where the judgment is vacated absolutely and finally, or canceled and stricken off the record, or reversed on appeal, and in such cases the court has no power to continue the lien so that it may attach to such judgment as subsequently may be rendered.” (footnotes omitted)).

We next consider the priority of Campbell’s deed versus Cheryl’s void judgment, as determined by the district court, and her revived judgment, as determined by the circuit court. Campbell acquired title to the property shortly after the district court declared the 2007 judgment as to Ward to be void, and she recorded her deed to the property in September 2008. Before the circuit court, Campbell asserted that, when she acquired her title to the property and recorded her deed, Cheryl held no valid lien against the property. Based on our analysis set out above, we must agree. The 2007 judgment as to Ward was not revived and given legal effect again until March 18, 2009, when the circuit court so ordered. By that time, however, Campbell’s deed had already been recorded.

In the circuit court, Campbell relied on Ala.Code 1975, § 35-4-90(a), which addresses the priority of deeds versus the claims of judgment creditors. That statute provides, in pertinent part:

“(a) All conveyances of real property, deeds, mortgages, deeds of trust or instruments in the nature of mortgages to secure any debts are inoperative and void as to purchasers for a valuable consideration, mortgagees and judgment creditors without notice, unless the same have been recorded before the accrual of the right of such purchasers, mortgagees or judgment creditors.”

The Daughertys responded that § 35-4-90(a) offered no support for Campbell’s claim that her deed was entitled to priority over Cheryl’s revived judgment; the Daughertys asserted that § 35-4-90(a), in fact, supported their claim that Cheryl’s recorded judgment lien was entitled to priority over Campbell’s deed. In Johnson v. Haleyville Mobile Home Supply, Inc., 477 So.2d 328 (Ala.1985), on which the Daugh-ertys rely, our supreme court discussed the proper application of § 35-4-90(a). In Johnson, Haleyville Mobile Home Supply, Inc. (“HMH”), the judgment creditor, sued the debtor-defendants, the Lewises, in January 1983, and the Lewises conveyed some of their property to Johnson in March 1983. Id. at 328. HMH obtained a judgment in its favor on May 25, 1983, and it recorded its judgment on that same day. Id. at 328-29. The Lewises filed a post-judgment motion challenging certain aspects of the judgment on June 14, 1983. Id. at 329. Johnson recorded his deed on July 19, 1983, after the entry of the judgment in favor of HMH. Id. at 329. On July 27, 1983, the trial court denied the Lewises’ postjudgment motion, but it amended the judgment to reduce the amount awarded to HMH. Id.

On appeal, Johnson relied on § 35-4-90(a) and asserted that his deed had been recorded before HMH had acquired its judgment rights, which, Johnson argued, had occurred when the Lewises’ post-judgment motion had been finally resolved. Id. Our supreme court rejected that argument, stating:

“Based on the language used by the trial judge in the order dated July 27, 1988, we must also disagree with this argument. In that order, the trial judge stated, ‘the Court is of the opinion that the judgment heretofore entered on the 25th day of May, 1983 should be reduced.’ Nowhere in that order is it stated that it was intended to be a new judgment. If a timely motion for new trial is made, a trial court may amend or correct its judgment. Jasper Community Hospital v. Hyde, 397 So.2d 153, 155 (Ala.Civ.App.1981). In this case, upon timely motion, the trial judge amended the judgment of May 25, 1983, by reducing the amount to be awarded to HMH, and this action did not affect the rights established in that previous judgment.
“The trial court was correct in deciding that HMH’s judgment lien was superior to Johnson’s deed from the Lewises. For a judgment creditor to have priority over a prior executed deed under [Ala.] Code 1975, § 35-4-90, it must be shown that the rights as a judgment creditor accrued before the prior executed deed was recorded and that the judgment creditor did not have notice of the deed at the time of the judgment. W. T. Rawleigh Co. v. Barnette, 253 Ala. 433, 436, 44 So.2d 585, 587 (1950). We have decided that HMH’s rights as a judgment creditor accrued on May 25, 1983. The facts presented to the trial court show that Johnson did not record his deed until July 19, 1983, and that HMH did not have notice of that deed at the time its judgment was rendered and recorded. Therefore, the determination of the trial court in favor of HMH was correct.”

Johnson, 477 So.2d at 329-30.

The facts of this case are easily distinguishable from those of Johnson. In Johnson, our supreme court held that the creditor’s judgment rights had accrued before the deed at issue had been recorded. The supreme court also concluded that the trial court’s later amendment of that judgment, in response to a postjudgment motion, did not amount to the entry of a new judgment.

In this case, the August 2008 judgment entered by the district court set aside the 2007 judgment as to Ward; that ruling vacated Cheryl’s creditor’s rights as to Ward. Cheryl sought a review of that ruling from a different court, i.e., the circuit court, which ultimately reversed the district court’s ruling. Therefore, unlike in Johnson, supra, the subsequent ruling by the circuit court in March 2009 resulted in the revival of the judgment in favor of Cheryl. Although Cheryl regained her rights as a judgment creditor as to Ward, a lapse of time occurred in which Cheryl held no valid judgment against Ward. During that lapse in the validity of Cheryl’s judgment against Ward, Campbell obtained title to the property and recorded her deed. See 50 C.J.S. Judgments § 826 (2009) (“When an order vacating a judgment is set aside the lien is revived in all its pristine vigor except as to the rights of third persons acquired in the meantime.” (footnotes omitted)).

Additionally, when the judgment against Ward was revived in favor of Cheryl in March 2009, Cheryl knew or should have known of Ward’s conveyance of the property. In his motion to set aside the 2007 judgment, Ward indicated that he had a contract to sell property located in Jefferson County and that Cheryl’s recorded judgment was interfering with that sale. Thus, Cheryl was on notice that Ward intended to sell property that she claimed was subject to her judgment lien. Additionally, at the time Cheryl’s judgment was revived, Campbell’s deed was duly recorded in the probate court. See, e.g., Baldwin Cnty. Fed. Sav. Bank v. Central Bank of the South, 585 So.2d 1279 (Ala.1991) (discussing the notice exception of § 35 — 4— 90(a) and recognizing that, for a judgment creditor to be given priority over an existing deed holder, the judgment creditor must record its judgment without actual or constructive notice of the earlier conveyance).

Because Campbell’s deed was recorded before Cheryl’s rights as a judgment creditor against Ward were revived and because Cheryl knew or should have known of Campbell’s deed at the time those rights were revived, Campbell’s deed is entitled to priority over Cheryl’s judgment rights, pursuant to § 35^1-90(a).

The Daughertys also argue that the doctrine of lis pendens requires a reversal of the circuit court’s summary judgment. See Ala.Code 1975, § 35-4-131(a) (recognizing that a lis pendens may be recorded against specific real property when an action is brought to enforce “any lien upon, right to or interest in, or to recover any land”). Citing Jesse P. Evans III, Alabama Property Rights and Remedies § 5.13 (4th ed.2010), the Daughertys argue in their brief that, “[ujnder the common-law doctrine of lis pendens, the filing of an action respecting a right, title, interest in or claim to the property placed the property in custodia legis, or in the custody of the court in which the action was commenced.” We disagree.

In Stephens v. Huie, 37 So.3d 776, 779 (Ala.Civ.App.2009), this court stated:

“The doctrine of lis pendens has no application when the action involved seeks the recovery of a money judgment. McCollum v. Burton, 220 Ala. 629, 127 So. 224 (1930); see also 51 Am.Jur.2d Lis Pendens § 28 (2000) (stating that ‘where the primary purpose of a lawsuit is to recover money damages and the action does not directly affect the title to or the right of possession of real ■ property, the filing of a notice of lis pendens is inappropriate’).”

Applying the principles applicable to the doctrine of lis pendens to this case, it is clear that Cheryl’s original claims against Ward did not relate to the title to or the right of possession of real property; her claims arose as a result of automobile repairs that she claimed had been improperly performed. At all times relevant to her claims against Ward, Cheryl has attempted to obtain and to retain her right to recover money damages from Ward. We, therefore, agree with Campbell that the doctrines of lis pendens and in custodia legis were never applicable in this case.

Based - on the above, we conclude that the circuit court properly entered a summary judgment in favor of Campbell. We, therefore, affirm the circuit court’s judgment.

AFFIRMED.

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

      . On July 8, 2008, Cheryl filed in the district court a motion styled "Motion to Amend Judgment Nunc Pro Tunc” seeking to clarify the names shown on the 2007 judgment and to distinguish between Tavares Ward, Sr., and Tavares Ward, Jr. The district court granted her motion to identify Tavares Ward, Jr., as "Teague Ward aka Tavares Ward, Jr.”

      . Cheryl originally filed with the circuit court a notice of appeal from the district court's August 4, 2008, ruling. The circuit court subsequently granted Cheryl’s motion to treat her notice of appeal as a petition for a writ of mandamus. See, e.g., Bates v. Stewart, 99 So.3d 837 (Ala.2012) (recognizing that a petition for a writ of mandamus is a proper method of seeking review of a trial court's ruling granting a motion, filed pursuant to Rule 60(b), Ala. R. Civ. P., reinstating an action); and Ex parte McCrory & Williams, Inc., [Ms. 2121099, Jan. 10, 2014] - So.3d -(Ala.Civ.App.2014) (reviewing, by way of mandamus petition, a trial court's granting of a motion, filed pursuant to Rule 60(b)(4), Ala. R. Civ. P., seeking to set aside a default judgment). We, therefore, refer to Cheryl's filing in the circuit court as a mandamus petition.

      .Although John Daugherty is a practicing attorney who represented Cheryl in obtaining the 2007 judgment, the record does not explain his role as a plaintiff in the underlying action before the circuit court. In any event, his interests appear to be aligned with and identical to Cheryl’s interests.

      . Based on the nature of the claims asserted against Campbell and Ward, we conclude that the circuit court's entry of a summary judgment in favor of Campbell implicitly disposed of all claims asserted against Ward as well. Additionally, Campbell has not conditionally cross-appealed from the implicit denial of her cross-claim in which she had asserted an equitable lien for the value of the improvements she had made to the property.

      . In Johnson, supra, our supreme court recognized that "[t]he issue [in] this appeal is whether HMH obtained the rights of a judgment creditor for the purposes of [Ala.] Code 1975, § 35-4-90, on the date of the initial entry of judgment by the trial court or on the date the Lewises’ motion for new trial was denied.” 477 So.2d at 328.

      . Although the Daughertys presented these arguments to the circuit court, they did so in a brief submitted to the circuit court after the parties had concluded their arguments in support of and in opposition to the competing summary-judgment motions. Campbell moved to strike the Daughertys’ untimely filed brief, but the circuit court did not rule on Campbell's motion to strike before entering a summary judgment in Campbell's favor. Although it is unclear whether the circuit court considered the Daughertys' arguments, we briefly address them.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Nancy PERRY v. USAA CASUALTY INSURANCE COMPANY.
    2130179.
    Court of Civil Appeals of Alabama.
    May 2, 2014.
    J. Barton Warren of Warren & Simpson, P.C., Huntsville, for appellant.
    Edward E. Wilson, Jr., and Christopher J. Donovan of Tatum Wilson, PC, Huntsville, for appellee.
   THOMPSON, Presiding Judge.

On October 4, 2007, Nancy Perry was a passenger in a vehicle driven by Pamela Edwards Quick when Quick’s vehicle was struck by a vehicle driven by Marquis Wilson. Perry was injured in the accident.

Alfa Mutual Insurance Company (“Alfa”), Wilson’s liability insurer, offered to pay Perry the $50,000 limit of Wilson’s insurance policy in exchange for an agreement pursuant to which Perry would release Alfa from any further liability. Perry then sought underinsured-motorist (“UIM”) benefits from Cotton States Insurance Company (“Cotton States”), which was Quick’s UIM insurance provider, as well as from USAA Casualty Insurance Company (“USAA”), Perry’s own UIM insurance provider. Cotton States agreed to settle Perry’s claims against Quick, and it tendered the $40,000 limit of Quick’s UIM insurance policy to Perry.

USAA, however, refused to settle. Perry filed an action in the trial court against Wilson and USAA. USAA advanced the $50,000 liability-policy limit under Wilson’s policy with Alfa to Perry to preserve its subrogation rights, and it opted out of the litigation. See Lowe v. Nationwide Ins. Co., 521 So.2d 1309 (Ala.1988). The jury returned a verdict in Perry’s favor and awarded her $275,000 in damages. On March 15, 2010, the trial court entered a judgment on the jury’s verdict.

USAA filed a complaint against Perry seeking a judgment declaring that it is entitled to a credit against the jury award for the $40,000 in UIM benefits Perry received from Cotton States, Quick’s UIM insurance provider. The parties do not dispute that USAA is entitled to a $50,000 credit for the insurance benefits paid by Alfa on behalf of Wilson. Perry answered and counterclaimed, seeking an award of an attorney fee and litigation expenses under the common-fund doctrine. See Mitchell v. State Farm Mut. Auto. Ins. Co., 118 So.3d 693, 694 (Ala.Civ.App.2011) (The “common-fund doctrine” is an “exception to the so-called ‘American rule,’ which generally bars awards of attorney fees to prevailing parties, in the context of a dispute between an injured insured party and a subrogated insurance carrier over whether the carrier is responsible for a pro rata share of the insured’s attorney fees incurred in the process of obtaining a settlement payment against which the carrier has asserted a right of reimbursement.”).

USAA moved for a summary judgment on its claim. Perry responded to USAA’s summary-judgment motion and moved for a summary judgment on her claim seeking the payment of a portion of her legal and litigation expenses.

On October 22, 2013, the trial court entered a summary-judgment order in which it granted USAA’s summary-judgment motion and ordered that USAA be provided a credit against its liability to Perry for the $40,000 of UIM benefits provided by Cotton States. In that order,- the trial court also determined that Perry was entitled to a summary judgment on her claim seeking to recover a portion of her legal and litigation expenses under the common-fund doctrine.

USAA appealed the October 22, 2013, summary-judgment order, and our supreme court transferred this appeal to this court pursuant to § 12-2-7, Ala.Code 1975.

In their briefs submitted to this court, both parties alleged, in a one-sentence purported “statement of jurisdiction,” that this court has jurisdiction over this appeal pursuant to § 12-22-2, Ala. Code 1975. See Rule 28(a)(3), Ala. R.App. P. (setting forth the information to be included in a proper' statement of jurisdiction in an appellate brief). Neither party has addressed whether the trial court’s summary-judgment order was sufficiently final to support USAA’s appeal. However, issues of subject-matter jurisdiction are of such magnitude that an appellate court may take notice of them ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997); Bryant v. Flagstar Enters., Inc., 717 So.2d 400, 401 (Ala.Civ.App.1998).

In this case, the trial court’s October 22, 2013, summary-judgment order determined that USAA was liable for the payment of an attorney fee, but it did not rule on the amount of the attorney fee to which Perry was entitled. A ruling on a party’s liability for an attorney fee under the common-fund doctrine, without an accompanying determination of the amount of the attorney fee due, renders the determination on the attorney-fee claim nonfi-nal. James v. Alabama Coalition for Equity, Inc., 713 So.2d 937, 941-43 (Ala.1997); see also Goldome Credit Corp. v. Player, 869 So.2d 1146, 1149 (Ala.Civ.App.2003) (holding that the order from which the appeal was taken was nonfinal because it determined liability for the attorney fee without specifying the amount of the fee awarded); and James River Corp. v. Bolton, 14 So.3d 868, 870 (Ala.Civ.App.2008) (holding that an order requiring a party to pay an attorney fee without specifying the amount of the fee awarded was nonfinal).

The October 22, 2013, summary-judgment order was nonfinal, and, therefore, it can not support this appeal. See § 12-22-2, Ala.Code 1975 (“From any final judgment of the circuit court ..., an appeal lies to the appropriate appellate court ... within the time and in the manner prescribed by the Alabama Rules of Appellate Procedure.” (emphasis added)). Accordingly, this court must dismiss this appeal of a nonfinal order. Bacadam Outdoor Adver., Inc. v. Kennard, 721 So.2d 226, 229 (Ala.Civ.App.1998); Young v. Sandlin, 703 So.2d 1005, 1008 (Ala.Civ.App.1997).

APPEAL DISMISSED.

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


author: PITTMAN, Judge.

text:
    Stephen Sean RUTAN v. Angelina Maria RUTAN.
    2120856.
    Court of Civil Appeals of Alabama.
    May 2, 2014.

      F. Patrick Loftin of Loftin, Loftin & May, Phenix City, for appellant.
    Eric B. Funderburk of Funderburk & Lane, Phenix City, for appellee.
   PITTMAN, Judge.

Stephen Sean Rutan (“the husband”) appeals from a judgment of the Russell Circuit Court (“the trial court”) dissolving his marriage to Angelina Maria Rutan. Because the judgment appealed from is not a final judgment, we dismiss the appeal.

In 2010, the husband sued the wife for a divorce in the Lee Circuit Court. Subsequently, by agreement of the parties, the Lee Circuit Court transferred the action to the trial court. While the parties were separated and the action was pending, the wife gave birth to a child in 2012. Thereafter, the wife asserted a claim challenging the husband’s paternity of that child. Following a trial, the trial court, in March 2013, entered the judgment from which the husband appeals. Among other things, that judgment dissolved the parties’ marriage, awarded the wife primary physical custody of a child who had been born in 2007, awarded the husband visitation with that child, ordered the husband to pay child support for that child, and divided the parties’ property. However, with respect to the child who had been born in 2012, the judgment stated:

“During the separation of the Parties, the [wife] conceived and [gave birth to a child in 2012], The [wife] has acknowledged that the [husband] is not the biological father of this child. [The husband] has stated that he does not believe he is the biological father of this child. The Court thus orders the Parties to have a DNA test done within sixty (60) days and have the results directed back to the Court.
“The Court will retain jurisdiction of the matter of paternity of this child and hold any further hearings necessary once the DNA results are received.”

Following the entry of that judgment, the husband filed a notice of appeal to this court.

The wife argues that the judgment from which the husband has appealed is not a final judgment and, therefore, will not support an appeal. We agree.

“ ‘ “It is a well established rule that, with limited exceptions, an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved.” ’ Owens v. Owens, 739 So.2d 511, 513 (Ala.Civ.App.1999), quoting Taylor v. Taylor, 398 So.2d 267, 269 (Ala.1981). This court has stated:
“ A final judgment is one that completely adjudicates all matters in controversy between all the parties.
“ ‘... An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is not a final judgment. In such an instance, an appeal may be had “only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” See Rule 54(b), Ala. R. Civ. P.’ ”

Adams v. NaphCare, Inc., 869 So.2d 1179, 1181 (Ala.Civ.App.2003) (quoting Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ.App.2002)).

Because the child who was born in 2012 was born during the parties’ marriage, the husband is the presumed legal father of that child, regardless of whether he is the biological father. See § 26-17-204(a)(1), Ala.Code 1975. Although the judgment states that the husband has stated that he does not believe that he is the biological father of the child who was born in 2012, it is not clear from the record whether the husband is persisting in his status as the presumed legal father of the child. If he is persisting in that status, neither the wife nor anyone else may challenge his paternity, see § 26-17-607(a), Ala.Code 1975, and the trial court will have to make custody, visitation, and child-support determinations regarding the child who was born in 2012. If the husband is not persisting in his status as the. legal father of that child, then the trial court will have to determine whether the husband is the father of that child. If the trial court determines that the husband is not the father, it should make an express determination to that effect. On the other hand, if the trial court determines that the husband is indeed the father of that child, it will have to make custody, visitation, and child-support determinations regarding that child. Thus, because the judgment from which the husband has appealed did not completely adjudicate all matters in controversy between the parties and because the trial court did not make it a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., it is not a final judgment. “The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case.” Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006). Therefore, we dismiss the husband’s appeal.

APPEAL DISMISSED.

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

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

      . Section 26-17-204(a)(l) provides that "[a] man is presumed to be the father of a child if ... he and the mother of the child are married to each other and the child is born during the marriage.”

      . In pertinent part, § 26-17-607(a) provides that "a presumed father may bring an action to disprove paternity at any time. If the presumed father persists in his status as the legal father of a child, neither the mother nor any other individual may maintain an action to disprove paternity.”


text:
    Pamela White METCALF v. PENTAGON FEDERAL CREDIT UNION.
    2120425.
    Court of Civil Appeals of Alabama.
    May 2, 2014.

      Kenneth James Lay of Hood & Lay LLC, Birmingham, for appellant.

      Leonard N. Math of Chambless Math & Carr, P.C., Montgomery, for appellee.
   THOMPSON, Presiding Judge.

In May 2012, Pentagon Federal Credit Union (“Pentagon”) filed in the Jefferson Circuit Court (“the trial court”) a complaint seeking to eject Pamela White Met-calf and “any occupants of [property located at a certain address]” from the property. Pentagon based its ejectment claim on a foreclosure deed that Pentagon asserted it had obtained on September 3, 2010. In its complaint, Pentagon also sought an award of damages for Metcalfs failure to surrender the property. Pentagon’s September 3, 2010, foreclosure deed indicates that Joyce E. White, Metcalfs mother, was the mortgagor on a mortgage issued by Pentagon. According to allegations in Metcalfs answer, White died on September 6, 2008. Although in her answer to Pentagon’s complaint Metcalf alleged that she was the administrator of her mother’s estate, the record contains no evidence or indication that an estate was opened for White, and the trial court specifically found that there was “no probate or administration of the estate of Ms. Joyce E. White.” Metcalf, both in the underlying action and in this appeal, is proceeding in her individual capacity and not in any capacity as a representative of an estate of White. Also, nothing in the record indicates that there is any contractual relationship between Metcalf and Pentagon.

On June 7, 2012, Metcalf, acting pro se, answered the complaint; she asserted that she had made mortgage payments to Pentagon for approximately 18 months while she lived at the property.

Pentagon moved for a summary judgment on September 6, 2012. In support of that motion, Pentagon presented evidence indicating that it had obtained the foreclosure deed on September 3, 2010, and that it had demanded possession of the property from Metcalf. The letter pursuant to which Pentagon demanded possession of the property was addressed to “Estate of Joyce E. White, c/o Pamela White Met-calf’ at the address of the foreclosed property. Pentagon also submitted an order of the trial court in a separate action between Pentagon and Chace A. White that specified that Pentagon was entitled to possession of the property and awarded Pentagon damages to be determined later representing rent and other damage caused by Chace White’s failure to surrender the property to Pentagon. The record on appeal does not reflect the nature, if any, of Chace White’s relationship to Joyce White or Metcalf, and there is no evidence pertaining to any interest Chace White might have had in the property.

Metcalf did not file a response to the summary-judgment motion. On October 3, 2012, the trial court entered an order denying Pentagon’s summary-judgment motion. On October 15, 2012, Pentagon filed a purported “motion to alter, amend, or vacate” that October 3, 2012, order. See SCI Alabama Funeral Servs., Inc. v. Hester, 984 So.2d 1207, 1208 n. 1 (Ala.Civ.App.2007) (“A valid postjudgment motion may only be taken in reference-to a final judgment.”). In support of that motion, Pentagon submitted evidence indicating that, in its 2010 foreclosure action, it had made service of process by publication. After conducting a hearing, the trial court entered an order on November 9, 2012, granting Pentagon’s motion for a summary judgment and awarding it possession of the property.

On December 21, 2012, Metcalf, still proceeding pro se, filed what she called a “motion to appeal” in the trial court. In that “motion to appeal,” Metcalf asked the trial court to reconsider its November 9, 2012, summary-judgment order. Neither the trial-court clerk nor the trial judge considered Metcalfs December 21, 2012, “motion to appeal” to be a notice of appeal to this court. Rather, after conducting a hearing, the trial court entered an order on January 10, 2013, in which it found that Metcalfs December 21, 2012, motion was made pursuant to Rule 60(b), Ala. R. Civ. P.; the trial court denied that motion.

Metcalf, represented by counsel, filed a notice of appeal on February 21, 2013. Our supreme court transferred the appeal to this court pursuant to § 12-2-7, Ala. Code 1975. This court assigned appeal number 2120425 to the appeal.

Initially, we note that the trial court’s November 9, 2012, summary-judgment order did not address Pentagon’s claim for an award of damages for Met-calfs refusal to surrender the property to it. An order that resolves fewer than all the claims of the parties is not a final judgment that will support an appeal. Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App.1987). Accordingly, the November 9, 2012, summary-judgment order was not a final judgment that would support an appeal.

Although both parties, in their arguments in their briefs submitted to this court, recognize the possibility that the November 9, 2012, summary-judgment order was not a final judgment, neither party addresses the impact of the nonfinality of that order with regard to this court’s jurisdiction over the appeal. However, this court must take notice of jurisdictional issues, and, therefore, we address the implications of the nonfinality of the November 9, 2012, summary-judgment order. Gregory v. Ferguson, 10 So.3d 596, 597 (Ala.Civ. App.2008).

The trial court treated Metcalfs December 21, 2012, “motion to appeal” the November 9, 2012, summary-judgment order as a motion filed pursuant to Rule 60(b), Ala. R. Civ. P. However, a Rule 60(b) motion, because it seeks relief from a final judgment, may be filed only in reference to a final judgment. Rule 60(b), Ala. R. Civ. P.; First Southern Bank v. O’Brien, 931 So.2d 50, 52 (Ala.Civ.App.2005). The November 9, 2012, summary-judgment order was not a final judgment, and, therefore, the December 21, 2012, “motion to appeal” could not properly be treated as a Rule 60(b) motion seeking relief from a final judgment.

Regardless, in her December 21, 2012, “motion to appeal,” Metcalf sought reconsideration of the trial court’s interlocutory November 9, 2012, summary-judgment order. See Ex parte Alfa Mut. Gen. Ins. Co., 684 So.2d 1281, 1282 (Ala.1996) (“The ‘character of a [motion] is determined and interpreted from its essential substance, and not from its descriptive name or title.’ ” (quoting Union Springs Tel. Co. v. Green, 285 Ala. 114, 117, 229 So.2d 503, 505 (1969))). The trial court denied that motion on January 10, 2013; in entering the ruling, however, the trial court again failed to rule on Pentagon’s remaining pending damages claim. Accordingly, the January 10, 2013, order also did not constitute a final judgment that would support Metcalfs appeal to this court.

Upon submission of Metcalfs appeal in this matter to this court, this court remanded the cause to the trial court. On December 26, 2013, the trial court entered an order certifying its orders as final pursuant to Rule 54(b), Ala. R. Civ. P. Thus, the December 26, 2013, Rule 54(b) order constitutes an order that is sufficiently final to support the appeal in this matter. On January 27, 2014, Metcalf filed a timely postjudgment motion, and the trial court entered an order denying that motion on March 28, 2014. Metcalfs appeal is deemed to have been timely filed after the entry of the final order denying the post-judgment motion. See Rule 4(a)(4), Ala. R.App. P.

In the first issue raised in her brief submitted to this court, Metcalf argues that the trial court erred in entering its November 9, 2012, summary-judgment order because that order did not address Pentagon’s claim for monetary damages and because it failed to address what she contends on appeal are counterclaims she asserted.

We conclude that Metcalf is correct that the November 9, 2012, summary-judgment order was not final. However, even if Metcalf could raise that isSue in an appeal, Metcalfs argument that the trial court erred in failing to rule on the remaining pending damages claim is moot given the trial court’s December 26, 2013, Rule 54(b) certification of finality of the November 9, 2012, summary-judgment order.

We also reject Metcalfs argument that she had asserted counterclaims against Pentagon and that the pendency of those unadjudicated counterclaims also rendered the November 9, 2012, summary-judgment order nonfinal. Although, in her answer to Pentagon’s complaint, Metcalf made a number of assertions concerning Pentagon’s conduct toward her, Metcalf made no claims against Pentagon and made no request for relief. Metcalfs answer cannot be said to have provided any notice to Pentagon or the trial court that she was asserting counterclaims against Pentagon.

Metcalf briefly contends that the trial court erred in failing to treat her December 21, 2012, “motion to appeal” as a notice of appeal to this court. As explained above, however, it is clear from the substance of that motion that Metcalf was seeking reconsideration of the November 9, 2012, summary-judgment order. See Ex parte Alfa Mut. Gen. Ins. Co., supra. Also, the record contains no indication that Metcalf argued to the trial court that it had erroneously considered her motion as one seeking reconsideration of the November 9, 2012, ruling.

Even assuming, however, that the trial court should have treated the “motion to appeal” as a notice of appeal, this court would have lacked jurisdiction over the appeal, because it would have been taken from a nonfinal order. Also, Metcalf has failed to argue on appeal how she was prejudiced by the trial court’s failure to treat her “motion to appeal” as a notice of appeal. The appellant bears the burden of demonstrating error on appeal; it is not the function of an appellate court to search the record for error or to create arguments on behalf of the appellant. Franklin v. Woodmere at the Lake, 89 So.3d 144, 150 (Ala.Civ.App.2011).

Metcalf also argues that the trial court erred in entering its summary-judgment order because, she contends, it erroneously allowed Pentagon to submit additional evidence in support of a motion to reconsider the trial court’s initial, October 3, 2012, denial of Pentagon’s summary-judgment motion. However, we conclude that Pentagon’s purported postjudgment motion filed on October 15, 2012, in reference to the October 8, 2012, ruling actually constituted a renewal of Pentagon’s original summary-judgment motion. See Ex parte Alfa Mut. Gen. Ins. Co., 684 So.2d at 1282 (a motion is interpreted according to its content, not its title).

Metcalf argues in her brief on appeal that she was denied due process because she was not allowed 10 days’ notice before the trial court conducted a hearing on the October 15, 2012, motion. See Rule 56(c)(2), Ala. R. Civ. P. (“The motion for summary judgment, with all supporting materials, including any briefs, shall be served at least ten (10) days before the time fixed for the hearing....”). The record does not support Metcalfs argument. The record on appeal indicates that on October 16, 2012, the trial court scheduled a hearing on Pentagon’s summary-judgment motion for November 5, 2012, which was 21 days after the filing of the motion. Also, the trial court rescheduled the hearing for November 9, 2012, which was 25 days following the filing of the renewed summary-judgment motion.

Metcalf argues in her brief submitted to this court that she was acting pro se and did not realize the hearing was to address a summary-judgment motion but, rather, that she believed the hearing was for a purported postjudgment motion. Metcalf does not contend that she did not receive Pentagon’s October 15, 2012, motion or the evidentiary materials submitted in support of that motion. It is well set-, tied that the “Rules governing the operation of the courts of this state are no more forgiving to a pro se litigant than to one represented by counsel.” Lockett v. A.L. Sandlin Lumber Co., 588 So.2d 889, 890 (Ala.Civ.App.1991); see also Leeth v. Jim Walter Homes, Inc., 789 So.2d 243, 246 (Ala.Civ.App.2000) (same). Accordingly, we cannot say that, by claiming she did not understand the nature of the hearing being conducted, Metcalf has demonstrated that the trial court erred in considering the October 15, 2012, filing as a renewal of the original summary-judgment motion.

Metcalf next asserts that the trial court erred in relying on the mortgage document setting forth the mortgage contract between Pentagon and Joyce White. Metcalf claims that, because the record on appeal does not include a copy of the mortgage document, the mortgage document was never properly before the trial court. However, in its October 3, 2012, order in which it denied Pentagon’s original summary-judgment motion, the trial court specifically stated that, “[a]t the oral argument of the [summary-judgment] motion, [Pentagon] supplemented its evidentiary submissions, without objection being raised by pro se [Metcalf], by producing a copy of the said mortgage at the request of the Court.” Thus, it is clear that the trial court had before it and considered the mortgage document. That document is not included in the record on appeal. The parties have not sought to supplement the record on appeal to include the mortgage document. See J.B. v. Cleburne Cnty. Dep’t of Human Res., 992 So.2d 34, 40-41 (Ala.Civ.App.2008) (It is the burden of the appellant to ensure that the record on appeal contains sufficient evidence for a reversal, and a motion filed pursuant to Rule 10(f), Ala. R. Civ. P., would allow for the correction and supplementation of the record on appeal.). However, the fact that a document is omitted from the record on appeal does not equate to a determination that the document was not properly submitted to and considered by the trial court.

Metcalfs final argument in her appellate brief is that there existed a question of fact that precluded the entry of the summary-judgment order in favor of Pentagon. Specifically, Metcalf contends that a genuine issue of material fact existed with regard to whether the foreclosure sale upon which Pentagon bases its claims was valid.

“ ‘ “[An appellate court’s] review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. South-Trust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).” ’ ”

Gooden v. City of Talladega, 966 So.2d 232, 235 (Ala.2007) (quoting Prince v. Poole, 935 So.2d 431, 442 (Ala.2006), quoting in turn Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004)).

Metcalf argues that she was not sent the required notice of default and acceleration or notice of the foreclosure sale. We note that Joyce White, Metcalfs mother, was the mortgagor. Metcalf has presented no evidence tending to indicate that she had a contract with Pentagon that would require it to provide her such notice. Metcalf makes no argument concerning under what theory she is asserting rights under the mortgage contract between Joyce White and Pentagon. Regardless, the record demonstrates that Pentagon submitted to the trial court evidence of notice by publication of the foreclosure sale to Joyce White in 2010 and evidence indicating that Pentagon sent a letter to Metcalf and any other occupant of the premises in 2010 providing notice of the foreclosure and a demand for possession.

Metcalf also argues that she presented “uncontroverted evidence” indicating that Pentagon breached the mortgage contract and that credit-life-insurance policies purchased by Joyce White were not credited by Pentagon to pay Joyce White’s mortgage. Assuming that Metcalf might have standing to assert this argument, we note that Metcalf did not respond to Pentagon’s summary-judgment motion, and her answer filed in the trial court was not verified. Accordingly, Metcalf presented no evidence in opposition to the summary-judgment motion. The trial court, in its October 3, 2012, order denying Pentagon’s original summary-judgment motion, noted that Metcalf had argued those issues. In its November 9, 2012, summary-judgment order, the trial court found that Metcalf had presented no evidence in opposition to Pentagon’s summary-judgment motion. “Mere conclusory allegations or speculation that fact issues exist will not defeat a properly supported summary judgment motion, and bare argument or conjecture does not satisfy the nonmoving party’s burden to offer facts to defeat the motion.” Crowne Invs., Inc. v. Bryant, 638 So.2d 873, 878 (Ala.1994); see also Hurst v. Alabama Power Co., 675 So.2d 397, 400 (Ala.1996) (same); and Waddell v. Colbert Cnty.-Northwest Alabama Healthcare Auth., 97 So.3d 178, 184 (Ala.Civ.App.2012) (affirming a summary judgment when the nonmovant failed to present any evidence in opposition to the properly supported summary-judgment motion). The record on appeal contains no evidence tending to indicate that Pentagon breached the mortgage contract or failed to pay a credit-life-insurance policy. Accordingly, we cannot say that Metcalf has demonstrated error with regard to this issue.

For the reasons expressed above, we affirm the trial court’s summary-judgment order awarding Pentagon possession of the property.

AFFIRMED.

PITTMAN, THOMAS, and DONALDSON, JJ., concur.

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

      . Although the trial court, in its October 3, 2012, order, referred to Metcalf’s "opposition” to the summary-judgment motion, the record on appeal contains no written opposition, and the case-action summary contains no indication that Metcalf submitted a written opposition to the summary-judgment motion.

      . Thereafter, on May 6, 2013, Metcalf filed a notice of appeal contesting the trial court's failure to treat her December 21, 2012, "motion to appeal” as a notice of appeal to this court. That appeal was also transferred to this court pursuant to § 12-2-7, Ala. Code 1975. This court designated that appeal as appeal number 2120671, and it was consolidated with this appeal. Pentagon moved to dismiss appeal number 2120671, and on July 23, 2013, this court granted that motion.

      . That motion states that it was served on Metcalf via electronic service "and/or” by being placed in the mail. Metcalf makes no argument concerning when she received the renewed summary-judgment motion.

      . There appears to be no estate for Joyce white.


author: THOMAS, Judge.

text:
    G.L.S. & ASSOCIATES, INC., and G.L. Smith & Associates, Inc. v. Keith ROGERS.
    2130322.
    Court of Civil Appeals of Alabama.
    May 16, 2014.

      William B. Tatum and Edward E. Wilson, Jr., of Tatum Wilson PC, Huntsville, for appellants.
    G. Bartley Loftin III and Harold D. Mooty III of Bradley Arant Boult Cummings LLP, Huntsville, for appellee.
   THOMAS, Judge.

Keith Rogers was employed as a registered representative of G.L.S. & Associates, Inc., and G.L. Smith & Associates, Inc. (hereinafter collectively referred to as “GLSA”), until he resigned from his employment in January 2013. Rogers solicited and effected the sale of securities for GLSA; thus, Rogers is a securities broker. His employment agreement required that he be a registered representative of the National Association of Securities Dealers (“NASD”), which is now known as the Financial Industries Regulatory Agency (“FINRA”). The employment agreement also provided, among other things, that

“[Rogers] will strictly comply with the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940, the Securities Exchange Commission, the National Association of Securities Dealers, and state securities act administrators, and the rules and regulations of all governing bodies having jurisdiction over securities activities.”

The employment agreement contained a nonsolicitation provision, which read as follows:

“WHEREAS, [Rogers] desires continued employment with [GLSA] and payment of salary and/or commissions in accordance with the terms and conditions set forth below.
“WHEREAS, [Rogers] expressly covenants and agrees that any and all business accounts at any time or times procured, handled, or managed by [Rogers] while employed by [GLSA] are and shall be the exclusive property of [GLSA] for its exclusive benefit to the extent described under this Agreement;
“WHEREAS, [Rogers] recognizes and acknowledges that [GLSA’s] accounts and information relating to [GLSA’s] clients are valuable and unique assets of [GLSA],
“NOW, THEREFORE, in consideration of the premises and covenants contained within this Agreement, [Rogers] agrees to the following:
“1. Upon termination of employment for any reason whatsoever, [Rogers] will not, for a period of two (2) years from the date of termination directly or indirectly, either as an individual or as the agent, representative, stockholder, or employee of another or in any other manner:
“(a) Quote rates of stocks, bonds or commodities, or provide any investment counseling services, advice or other investment related services similar to those provided by [GLSA] for any person, firm or corporation residing or located within the State of Alabama or otherwise within a fifty-mile radius of Huntsville, Alabama, that is a client of [GLSA] and for which [Rogers], during the course of his or her employment, shared commissions with any other broker, agent, representative or employee of [GLSA], or otherwise directly or indirectly suggest, advise, induce or attempt to persuade any such clients of [GLSA] to discontinue any business or investment relations with [GLSA];
“(b) Divulge the names, addresses, or other information concerning the clients and accounts of [GLSA] or any other confidential information acquired during employment by [GLSA] to any person, firm, corporation, association, or other entity for any purpose whatsoever.
“(2) The provisions of this Agreement between [Rogers] and [GLSA] shall extend to any successor corporation of [GLSA], and the surviving corporation shall possess all the rights and privileges of enforcement under this Agreement.
“(3) The provisions of this Agreement shall be governed by the laws of the State of Alabama.
“(4) All of the provisions of this Agreement are distinct and severable, and if any provision shall be held illegal or void, it shall not affect the validity or legality of the remaining provisions of this Agreement.
“(5) In the event of breach of this Agreement by [Rogers], [GLSA] shall be entitled to any and all damages caused by the breach, including but not limited to litigation expenses and attorney’s fees.”

In June 2013, GLSA sued Rogers and another former employee, Kelly C. Clary, alleging that they had violated the nonsoli-citation provisions of their employment agreements by attempting to solicit clients of GLSA; GLSA attached the employment agreements executed by Rogers and Clary to its complaint. GLSA later voluntarily dismissed its claim against Clary. Rogers then moved the trial court to dismiss GLSA’s claim against him.

Rogers argued in his motion to dismiss that the nonsolicitation provision in the employment agreement was unenforceable as a matter of law because being a securities broker in the business of purchasing and selling securities was a profession, which he could not be restricted from practicing under Ala.Code 1975, § 8-1-1. Section 8-1-1 reads, in pertinent part:

“(a) Every contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind otherwise than is provided by this section is to that extent void.
“(b) One who sells the good will of a business may agree with the buyer and one who is employed as an agent, servant or employee may agree with his employer to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city, or part thereof so long as the buyer, or any person deriving title to the good will from him, or employer carries on a like business therein.”

The predecessor statutes to § 8-1-1— Code 1940 (Recomp. 1958), Title 9, §§ 22-24 — were construed to permit nonsolicitation agreements between an employer and an employee in certain circumstances, unless the agreement attempted to prohibit a person from practicing a profession. See Odess v. Taylor, 282 Ala. 389, 211 So.2d 805 (1968).

“Even a specific covenant not to compete in a profession, trade, or business is void under [Ala.Code 1940 (Re-comp.1958), Title 9,] Section 22 ... unless within the limited exceptions created by [Ala.Code 1940 (Recomp.1958), Title 9,] Section 23.... Joseph v. Hopkins, 276 Ala. 18, 158 So.2d 660 [(1963)].
“As pointed out in Parker v. Ebsco Industries, Inc., 282 Ala. 98, 209 So.2d 383 [(1968)], Section 23 originally applied only to the sale of the good will of a business (Section 6827, Code of 1923) but the section was amended in 1931 to extend to the relationship of employer and employee.
“The question is thus presented as to whether the legislature intended by Section 23 that one practicing a profession should be considered in the category of an employee as that term is understood in the usual trade or commercial sense.
“It is significant that the term ‘profession’ is omitted in Section 23. Said section pertains to a ‘business’ to an ‘agent, servant, or employee’ and to soliciting old ‘customers’ of a former ‘employer.’
“Having included ‘profession’ in Section 22, and omitted this term in Section 23, an affirmative inference is created that the legislature did not intend to include professions in Section 23, such interpretation being aided by resort to the maxim ‘expressio unius est exclusio alterius.’ See Weill v. State ex rel. Gaillard, 250 Ala. 328, 34 So.2d 132 [(1948)]; City of Birmingham v. Brown, 241 Ala. 203, 2 So.2d 305 [(1941)].”

Odess, 282 Ala. at 395-96, 211 So.2d at 811.

To support his contention that he was engaged in a profession, Rogers relied on the employment agreement, which indicated that he was required to be registered with NASD, now FINRA. Rogers also pointed out that he was required to strictly comply with several federal and state statutes regulating securities and them sale. According to Rogers, his employment as a securities broker qualified as practicing a profession because of the “professional training, skill, and experience required to perform certain services [he performed]; [the] delicate nature of the services [he] offered; and the ability and need to make instantaneous decisions [in his position].” Friddle v. Raymond, 575 So.2d 1038, 1039 (Ala.1991). GLSA opposed Rogers’s motion to dismiss. Neither party submitted any evidentiary material to support their arguments.

The trial court held a hearing at which it heard arguments of counsel. After the hearing, the trial court entered an order dismissing the complaint. In that order, it first noted that whether the occupation of securities broker was a profession was an issue of first impression; the trial court then concluded that Rogers was engaged in a profession and that the nonsolicitation provision of the employment agreement could not be enforced. GLSA filed a post-judgment motion, in which it argued that the trial court could not have determined whether Rogers was engaged in a profession without receiving evidence concerning the factors set out in Friddle. That motion was denied by operation of law, see Rule 59.1, Ala. R. Civ. P., and GLSA timely appealed to our supreme court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

On appeal, GLSA argues again that the trial court erred by concluding on Rogers’s motion to dismiss that Rogers was engaged in a profession and that the non-solicitation provision of the employment agreement could not be enforced. According to GLSA, such a decision cannot properly be made on a motion to dismiss, because certain factual issues must be resolved to determine whether being a securities broker is, in fact, a profession. Rogers contends that the trial court could have determined, based solely on the facts alleged in the complaint and the accompanying employment agreement, that he was engaged in a profession.

We first note that, despite the fact that the employment agreement was attached to the complaint, the trial court dismissed the action under Rule 12(b)(6), Ala. R. Civ. P., and did not enter a summary judgment in favor Rogers. The inclusion of the employment agreement did not, in this case, convert the motion to dismiss into a motion for a summary judgment. Because the employment agreement was attached as an exhibit to GLSA’s complaint, the employment agreement was a part of the pleadings and did not serve to convert the motion to dismiss to a motion for a summary judgment. See Carpenter v. Mobile Cnty., 841 So.2d 1237, 1239 n. 2 (Ala.2002). Our standard of review is, therefore, governed by the following:

“ ‘ “On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.], is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.” ’ ”

Donoghue v. American Nat’l Ins. Co., 838 So.2d 1032, 1036 (Ala.2002) (quoting C.B. v. Bobo, 659 So.2d 98, 104 (Ala.1995), quoting in turn Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993)).

Our supreme court has determined that physicians, veterinarians, and accountants are engaged in professions as that term is used in § 8-1-1. See Friddle, 575 So.2d at 1040 (veterinarians); Burkett v. Adams, 361 So.2d 1, 3 (Ala.1978) (public accountants); Gant v. Warr, 286 Ala. 387, 391, 240 So.2d 353, 355 (1970) (certified public accountants); Odess, 282 Ala. at 396, 211 So.2d at 811 (physicians). The Friddle court set out certain factors that our supreme court finds relevant to the inquiry whether a person is engaged in a profession:

“In Odess v. Taylor, 282 Ala. 389, 211 So.2d 805 (... 19[68]), this Court stated several relevant factors to be considered in resolving the issue as to what constitutes a profession: professional training, skill, and experience required to perform certain services; delicate nature of the services offered; and the ability and need to make instantaneous decisions. In addition, the Court quoted the following excerpt from the late Dean Roscoe Pound’s work, The Lawyer From Antiquity To Modem Times:
“ ‘ “There is much more in a profession than a traditionally dignified calling.
“ ‘ “The term refers to a group of men pursuing a learned art as a common calling in the spirit of a public service — no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art is the purpose. Gaining a livelihood is incidental, whereas, in a business or trade it is the entire purpose. ...’”
“Odess v. Taylor, 282 Ala. at 396, 211 So.2d at 812.”

Friddle, 575 So.2d at 1039-40. The opinion in Friddle relies on the fact that the practice of veterinary medicine is governed by Ala.Code 1975, § 34-29-60 et seq. (Title 34, Chapter 29, Article 4), specifically, § 34-29-62, which declares that “the right to practice veterinary medicine is a privilege conferred by legislative grant to persons possessed of the personal and professional qualifications specified in this article.” See Friddle, 575 So.2d. at 1040. Thus, the Friddle court concluded that veterinarians are professionals, stating:

“Considering the knowledge, skill, and education required of licensed veterinarians, as well as their duty to promote the public health, safety, and welfare of the State of Alabama, we consider it apparent that the legislature intended that persons licensed to participate in the practice of veterinary medicine be considered professionals. Section 34-29-62. It is likewise our view that persons who practice the science of veterinary medicine are members of a profession.”

Id.

In Burkett, which extended the “profession” designation to include public accountants in addition to certified public accountants, our supreme court stated that it could “see no reason to prevent deeming public accounting ... a profession.” Burkett, 361 So.2d at 3. Although our supreme court noted that certified public accountants were required to take an examination and be licensed and that, “[c]er-tainly, a [certified public accountant] may be entitled, because of such status, to perform services not properly performed by a public accountant,” id. at 3, the Burkett court based its decision on the fact that the record “disclose[d] no difference in the duties and capabilities between the two occupations [i.e., certified public accountants and public accountants].” Id. at 2. In a brief opinion concurring specially, Chief Justice Torbert stated that he did not believe that a statutory procedure requiring certification and licensing or a reference in a statute characterizing a particular occupation as “professional” would bind the court when considering whether a particular occupation was, in fact, a profession. Id. at 3 (Torbert, C.J., .concurring specially).

In Dobbins v. Getz Exterminators of Alabama, Inc., 382 So.2d 1135 (Ala.Civ.App.1980), this court relied on Chief Justice Torbert’s observations in Burkett when we determined that exterminators were not engaged in a profession. The exterminators had argued that, pursuant to Ala.Code 1975, § 2-28-3, they should be designated as professionals because, in granting the Commissioner of Agriculture the power to regulate “ ‘persons engaged in professional services or work defined in this chapter,’ ” Dobbins, 382 So.2d at 1137 (quoting § 2-28-3), which included “professional work or services involv[ing] the application of pesticides,” § 2-28-3 ¶ 6, the services performed by exterminators were described as “professional.” See id, This court rejected the argument that the use of the term “professional” in § 2-28-3 equated with the meaning of the term “profession” used in § 8-1-1. Id. We explained:

“Each of them may be professionals in their business in the sense that they may have worthily attained excellence as to knowledge, skill, training, expertise, proficiency and experience in the pest control field; but this would not convert their pest control business into a profession. There are multitudes of businesses, but few professions.”

Id. Accordingly, we concluded that exterminators “are engaged in a business not a profession,” despite the fact that the extermination business is described in § 2-28-3 as “professional.” Id.

No Alabama case other than Odess has analyzed the factors relevant to a determination whether a particular occupation is a profession. Although Alabama caselaw appears to permit summary determination by a court of whether a particular occupation is a profession, see Gant, 286 Ala. at 391, 240 So.2d at 355 (determining that the trial court had properly dismissed a complaint seeking to enforce a nonsolici-tation agreement against a certified public accountant because “[t]here can be no question that the practice of accounting by certified public accountants, as here, is a profession”), we cannot agree that such an approach comports with the requirements for granting a dismissal under Rule 12(b)(6) and our standard of review of a dismissal for failure to state a claim. Instead, we conclude that the inquiry whether a particular occupation is a profession requires evidence relevant to the Friddle factors.

Rogers argues in his brief that the employment agreement and the laws governing securities, alone, prove, that, under the Friddle factors, he is engaged in a profession. He says that the trial court could conclude from a reading of the employment agreement and consideration of the several applicable federal and state statutes that a securities broker must have professional training and skill, that being a securities broker requires handling a client’s delicate financial matters, and that a securities broker is called on to make quick decisions regarding securities. However, the record does not contain evidence, not even Rogers’s own affidavit, that would support a conclusion that the Friddle factors were met. All that we can glean from the complaint and the employment agreement is that securities brokers must comply with securities laws and regulations in purchasing and selling securities and that they are regulated.

A court can take judicial notice of adjudicative facts that are within the common knowledge. See Kmart Corp. v. Bassett, 769 So.2d 282, 286 (Ala.2000) (“A court may take judicial notice of certain facts that are within the common knowledge.”). However, the requirements and the duties of a securities broker are not within the common knowledge. Although Rogers is correct that the trial court, and this court, may take judicial notice of statutes, see Young v. Michael Dwain Mfg., Inc., 504 So.2d 287, 289 (Ala.Civ.App.1986), the fact that several statutes govern the purchase and sale of securities and require the licensing of securities brokers does not, in and of itself, compel the conclusion that securities brokers are engaged in a profession, especially in light of our reliance in Dobbins on Chief Justice Torbert’s remarks in his special concurrence in Burkett.

Based on the sparse information in the record, we cannot agree that there is no set of facts under which GLSA might prevail in its efforts to enforce the nonsolicitation provision of the employment agreement. That is not to say that Rogers may not prove that he is engaged in a profession at a later stage in these proceedings. Accordingly, we reverse the trial court’s judgment dismissing GLSA’s complaint against Rogers, and we remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . See Ala.Code 1975, § 7-8-102, Official Comment ¶ 14, which explains that a "securities broker” is "a person engaged in the business of buying and selling securities, as agent for others or as principal.”


author: BURKE, Judge.

text:
    John Lewis THOMAS, Jr. v. STATE of Alabama.
    CR-11-1243.
    Court of Criminal Appeals of Alabama.
    July 12, 2013.

      Robert Troy Teague, Montgomery, for appellant.
    Luther Strange, atty. gen., and Michael A. Nunnelley, asst. atty. gen., for appellee.
   BURKE, Judge.

John Lewis Thomas, Jr., was convicted of two counts of murder made capital because the murders were committed during the course of a robbery in the first degree, see § 13A-5-40(a)(2), Ala.Code 1975; one count of murder made capital because two or more people were killed by one act or pursuant to one scheme or course of conduct, see § 18A-5-40(a)(10), Ala.Code 1975; two counts of first-degree robbery, see § 13A-ÉM1, Ala.Code 1975; and one count of attempt to commit murder, see §§ 13A-6-2 and 13A-4-2, Ala.Code 1975. He was sentenced to concurrent terms of life imprisonment without the possibility of parole for each of the capital-murder convictions and to 99 years’ imprisonment for each of the remaining convictions. This appeal follows.

Because Thomas does not challenge the sufficiency of the State’s evidence on appeal, a detailed recitation of the facts is unnecessary. The evidence at trial revealed that Thomas and Antonio McNear robbed Kelley’s Grocery store on the afternoon of August 27, 2008. During the robbery, Thomas shot and killed Charles Kelley and Patricia Barginere, who were employees of the store. Betty Kelley, the owner of Kelley’s grocery, lived next door to the store. Kelley stated that, after hearing the gunshots, she ran to the store to investigate. Kelley testified that, when she opened the door to the store, Thomas fired several shots in her direction, some of which struck her house.

Further testimony established that Thomas and McNear took a cash register from the store and fled the scene. Police later arrested both men and questioned them about the robbery. A subsequent search of Thomas’s home revealed a .38 caliber pistol. Forensic analysis of the bullet recovered from Charles Kelley’s head, as well as bullets recovered from Betty Kelley’s house, indicated that the bullets had been fired from the gun found in Thomas’s home. Police also recovered the cash register from Kelley’s Grocery at the bottom of a well near Thomas’s home.

Steve Jackson testified that, at the time of the robbery, he was near Kelley’s Grocery when he heard two gunshots. Jackson stated that he saw a man standing near a pickup truck in the parking lot of the store looking toward Betty Kelley’s house. Jackson later identified the truck Thomas had been driving on the day of the shooting as the truck he saw in the parking lot of Kelley’s Grocery. Another witness, Gary Shirley, testified that he saw a pickup truck speed away from the store. Shirley also identified Thomas’s truck as the truck he saw leaving the scene. Thomas told police that he had not been inside Kelley’s Grocery in over a year. However, his fingerprints were discovered on a meat cooler inside the store near Patricia Barginere’s body.

I.

Thomas argues that the trial court erred by admitting ballistic evidence based on the testimony of Kathy Richert. Richert, a forensic scientist specializing in firearms and toolmark identification, testified that the bullet found in Charles Kelley’s head, as well as a bullet recovered from Betty Kelly’s front porch, had- been fired from the gun that was recovered from Thomas’s home. Richert stated that the protocol at the Alabama Department of Forensic Sciences is to have at least two forensic scientists perform an analysis on objects such' as the bullets in the present case. A primary analyst test-fires the gun and then compares that bullet to a bullet that was recovered from a crime scene. After-wards, another forensic scientist independently examines the bullets and compares his or her results with those of the primary analyst. Both scientists must reach the same conclusion in order for the analysis to be valid. In the present case, Tammi Sligh was the primary analyst while Richert was the secondary analyst. Sligh subsequently took a job in Texas and did not testify at the trial.

Thomas contends that the trial court erred by allowing Richert to testify regarding the ballistic evidence. He argues that the admission of the evidence violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution which “provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.’ ” Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). According to Thomas, he should have been allowed to cross-examine Sligh regarding her conclusions because, he says, she was not an unavailable witness. Additionally, Thomas argues that the ballistics report should not have been admitted because, he says, the State failed to prove a proper chain of custody. However, neither of those arguments is preserved for appellate review.

Before trial, the State filed a motion requesting that the trial court make a pretrial determination of the admissibility of the ballistic evidence. (C. 495.) A hearing was held, during which Thomas argued against the admissibility of Ric-hert’s testimony. However, when Richert testified at trial, Thomas made only one objection. After the State elicited testimony regarding Richert’s qualifications and expertise, the following exchange took place:.

“[Prosecutor]: Your Honor, at this time we would like to have Ms. Richert recognized as an expert witness in the field of firearms and toolmark identification.
“[Defense Counsel]: No objection, except as previously noted in prior hearing.”

(R2. 3366.)

The Alabama Supreme Court has held:

“‘Review on appeal is restricted to questions and issues properly and timely raised at trial.’ Newsome v. State, 570 So.2d 703, 717 (Ala.Crim.App.1989). ‘An issue raised for the first time on appeal is not subject to appellate review because it has not been properly preserved and presented.’ Pate v. State, 601 So.2d 210, 213 (Ala.Crim.App.1992). ‘“[T]o preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof.” ’ McKinney v. State, 654 So.2d 95, 99 (Ala.Crim.App.1995) (citation omitted). ‘The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.’ Ex parte Frith, 526 So.2d 880, 882 (Ala.1987). ‘The purpose of requiring a specific objection to preserve an issue for appellate review is to put the trial judge on notice of the alleged error, giving an opportunity to correct it before the case is submitted to the jury.’ Ex parte Works, 640 So.2d 1056, 1058 (Ala.1994).”

Ex parte Coulliette, 857 So.2d 793, 794-95 (Ala.2003). Furthermore,

“ ‘ “An appellant who suffers an adverse ruling on a motion to exclude evidence, made in limine, preserves this adverse ruling for post-judgment and appellate review only if he objects to the introduction of the proffered evidence and assigns specific grounds therefor at the time of the trial, unless he has obtained the express acquiescence of the trial court that subsequent objection to evidence when it is proffered at trial and assignment of grounds therefor are not necessary.” ’ ”

Ex parte Jackson, 33 So.3d 1279, 1283 (Ala.2009), quoting Baldwin Cnty. Elec. Membership Corp. v. City of Fairhope, 999 So.2d 448, 454 (Ala.2008), quoting in turn Owens-Coming Fiberglass Corp. v. James, 646 So.2d 669, 673 (Ala.1994).

At the above-mentioned pretrial hearing, the trial court ruled in favor of the State and held that Richert’s testimony did not violate the Confrontation Clause. (R2. 485.) However, Thomas did not obtain the “express acquiescence” of the trial court that subsequent objection at trial would be unnecessary. We also note that the hearing was based on the State’s motion for a pretrial determination of the admissibility of the ballistic evidence, not a motion to exclude the evidence filed by Thomas.

During Richert’s testimony at trial, Thomas objected but failed to specify the grounds for the objection. Although he referenced an objection from a “prior hearing,” he did not specify which hearing he was referring to. Additionally, the context of the objection suggests that Thomas was objecting to Richert’s qualification as an expert. Therefore, the trial court was not put on notice of the alleged error. Accordingly, Thomas’s argument regarding the admissibility of Richert’s testimony is not preserved for appellate review.

II.

Next, Thomas asserts that the trial court erred by admitting a cash register into evidence. As noted, police discovered the cash register from Kelley’s Grocery at the bottom of a well on property near Thomas’s house. Subsequent testimony revealed that the property had once been owned by Thomas’s family. During Thomas’s interrogation, he told the police about the cash register and gave them directions to the property on which it was found. According to Thomas, the State conceded that he had invoked his right to counsel before giving that statement and that any evidence obtained as a result of that statement would be inadmissable at trial. Thomas asserts that the State “stipulated and agreed that the cash register would squarely be ‘fruit of the poisonous tree’ and would be inadmissible evidence against Thomas.” (Thomas’s brief, at 41.) Thomas contends that the State later breached that agreement.

In his brief on appeal, Thomas cites extensive caselaw regarding the enforceability and binding nature of in-court agreements. However, he does not provide any citations to the record indicating where in the record it shows that the purported stipulation was entered into. The only cite to the record he provides is to a pretrial motion to suppress. (Thomas’s brief, at 40), citing C. 574-75. However, that motion does not reference any stipulations by the State. This Court has held:

“Rule 28(a)(10), Ala. R.App. P., requires that an argument contain ‘the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.’ ‘Recitation of allegations without citation to any legal authority and without adequate recitation of the facts relied upon has been deemed a waiver of the arguments listed.’ Hamm v. State, 913 So.2d 460, 486 (Ala.Crim.App.2002).”

Egbuonu v. State, 993 So.2d 35, 38-39 (Ala.Crim.App.2007). Because Thomas did not provide any citations to the record indicating where the purported stipulation took place, we find that he failed to adequately brief this argument as required by Rule 28(a)(10), Ala. R.Crim. P. Accordingly, it is deemed to be waived.

Out of an abundance of caution, this Court searched the record and discovered the following exchange between the State and defense counsel during a hearing on a motion to suppress:

“[Prosecutor]: Now, that being said, I reviewed [Thomas’s] statements. Everybody in our office has reviewed the statements. We have thought about it, discussed it at great length. And we believe that John Thomas, Jr. invoked his right to counsel and that it was misunderstood by law enforcement, and they continued [to] question him.
“But the State is imposing their own self-restriction based on what we believe was the [invocation] of his rights. And to be specific, it’s at minute 22, 38 seer onds in Statement 2 where the defendant said, I just need a lawyer. To us— and like I" said, we’ve researched it and thought about it and have put a lot of consideration into it, and we believe that at that point he invoked his right 'to counsel.
“So the State plans to only go into the first statement that was taken with Agent Rodgers and Heath Truman and that part of the second statement that was taken with Agent Johnny Senn up until that point. And we will proceed no further unless the defense opens the door, if that happens.
“[Defense counsel]: I don’t know if Johnny reminded him of his rights in the — in the second statement. But he said, I just need a lawyer. And anything from there throughout the — any statement made.
“[Prosecutor]: Yes, Pm with you.
“[Defense counsel]: We’re — we’re good.
“[Prosecutor]: Yeah, we’re good.
“[Defense counsel]: You know, as far as statements and everything go, we would have the issue of inducements. And then, of course, we would have the issue of anything that qualifies as fruit of the poison[ous] tree as a result of the statements.
“[Prosecutor]: Yes.
“[Defense counsel]: Judge — and I believe — and I was not a party to this conversation. There would be an issue about the — the cash register, that we would argue it would be the fruit of the poisonous tree which was obtained from the statement of Mr. Thomas. And I think that — I don’t want to speak since I wasn’t part of that, but the State agrees that the—
“[Prosecutor]: Your Honor, that — the State — I guess I should have been clearer. Not only are we saying that everything after him saying, I just want a lawyer, as far as statements is excluded. Any evidence that came solely from, such as the cash register, we are also saying is excluded.”

(R. 3059-79.) Assuming that this is the stipulation Thomas refers to in his brief, we do not find that it was breached by the State.

In the above-quoted exchange, the prosecutor agreed that any of Thomas’s state-merits made after he invoked his right to counsel would be excluded. She also stated that any evidence “that came solely from” those statements, “such as the cash register,” would also be excluded. (R. 3079)(emphasis added.) Thus, the State did not foreclose the possibility that it would introduce the cash register based on something other 'than Thomas’s statements. The State subsequently introduced the cash register under the doctrine of inevitable discovery. Police officers testified that they also gained information from' Thomas’s accomplice, Antonio McNear, that would have independently led them to the cash register. Accordingly, the State did not breach its agreement and Thomas’s argument to the contrary is without merit.

III.

Next, Thomas argued that the trial court abused its discretion by refusing to allow him to cross-examine police officers about alleged inconsistent or untruthful statements they made- in pretrial hearings. Before trial, Thomas and his attorney were allowed to visit the crime scene in order to assist a defense expert with measurements of the store. The deputies who accompanied Thomas testified at a pretrial hearing that they routinely wore video cameras on their uniforms that would record their activities. Some of or all the deputies who accompanied Thomas inside the store left the cameras running while defense counsel conferred with Thomas and the expert. At a pretrial hearing regarding those recordings, Chief Deputy James LeCroy of the Crenshaw County Sheriffs Department, testified that, although he has a standing order that deputies are to use their cameras any time they respond to a call, he was not specifically aware that they used the cameras while accompanying Thomas inside the store. However, once he was made aware of the recordings, he made a copy of the video and turned it over to defense counsel and the district attorney’s office.

At trial, Thomas sought to cross-examine the police officers regarding what he described as inconsistent or untruthful statements they made at the pretrial hearing regarding the use of the video cameras. The trial court refused to allow such questioning. On appeal, Thomas claims that it was error for the trial court not to allow him to question the officers about their statements. According to Thomas, such questioning was necessary because it weighed on the officers’ credibility.

This Court has held' that “ ‘[t]he latitude and extent of cross-examination, of necessity, is a matter within the sound discretion of the trial court, and, in the absence of prejudicial abuse, it is not reviewable on appeal.’ ” Reynolds v. State, 114 So.3d 61, 139 (Ala.Crim.App.2010), quoting Gobble v. State, 104 So.3d 920, 953 (Ala.Crim.App.2010). However, “ ‘[wjhere a witness’ testimony is of major importance and is strongly adverse to the party against whom he has testified, the usual discretion of a trial court has a narrow range, and it generally is required to allow proof of any important fact indicating bias of the witness.’ ” Id. (quoting Proctor v. State, 331 So.2d 828, 830 (Ala.Crim.App.1976)).

In his brief, Thomas claims that deputy LeCroy’s testimony was “wholly inconsistent with subsequent law enforcement testimony.” (Thomas’s brief, at 45.) He further claims that “[n]o single officer’s testimony was the same as any other.” Thomas’s conclusion was that “the only-inference a fair-minded person could have drawn from the inconsistent statements is that at least one, if not all, of the law enforcement officers had lied under oath about the matter.” (Thomas’s brief, at 45.)

However, a review of the record reveals that the officers’ testimony, while somewhat conflicting in minor details, does not suggest that they were deliberately giving false testimony. Thomas’s characterization of the testimony is not supported by the record. Any testimony regarding the officers’ statements would not have served any relevant purpose at trial, and the court’s exclusion of that testimony in no way prejudiced Thomas. Accordingly, the trial court did not abuse its discretion by refusing to allow Thomas to cross-examine the officers regarding their pretrial testimony.

IV.

Finally, Thomas argues that, because the trial court determined that he was mentally retarded and thus ineligible for the death penalty, it did not have jurisdiction to sentence him to life imprisonment without the possibility of parole. Thomas argues that the holding in Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which dealt with the constitutionality of Alabama’s capital sentencing as it relates to juveniles, logically extends to the mentally retarded as well. Although Thomas presented several arguments regarding the constitutionality of the -death penalty, he raised no such arguments about a sentence of life imprisonment without the possibility of parole. Accordingly, this argument was not presented to the trial court and is consequently not preserved for appellate review. See Ex parte Coulliette, supra; see also Jolly v. State, 858 So.2d 305, 316-17 (Ala.Crim.App.2002)(holding that an Eighth Amendment challenge to the exces-siveness and disproportionality of a sentence is subject to the rules of preservation).

V.

In its brief, the State claims that Thomas’s convictions for first-degree robbery violate the double-jeopardy clause because the robberies were the same robberies underlying two of his capital-murder convictions. Although Thomas did not raise this argument at trial or on appeal, the State points out that the trial court did not have subject-matter jurisdiction to adjudicate Thomas guilty of the robbery charges and that such a jurisdictional claim may be raised at any time. In Deas v. State, 844 So.2d 1286, 1289 (Ala.Crim.App.2002), quoting Borden v. State, 711 So.2d 498, 503 (Ala.Crim.App.1997), this Court faced a similar situation and held that “this type of double jeopardy violation ‘implicates the trial court’s jurisdiction to render a judgment,’ and issues that affect the subject matter jurisdiction of the trial court may be raised at any time.” Accordingly, we may address this issue sua sponte.

In Lewis v. State, 57 So.3d 807 (Ala.Crim.App.2009), the appellant was convicted of murder made capital because it was committed during the course of a kidnapping in the first degree as well as first-degree kidnapping involving the same victim. This Court held that “ ‘[a] defendant cannot be convicted of both a capital offense and a lesser offense that is included in the capital charge.’ ” Lewis v. State, 57 So.3d at 819, quoting Adams v. State, 955 So.2d 1037, 1098-99 (Ala.Crim.App.2003). Furthermore, this Court held:

“““While the appellant was properly charged with the two capital offenses, see Borden[ v. State, 711 So.2d 498, 503-04, n. 3 (Ala.Crim.App.1997) ], and both offenses were properly submitted to the jury, the prohibition against double jeopardy was violated when the appellant was convicted of the capital offense of murder during the course of a kidnapping under Count I of the indictment and also was convicted of the lesser-included offense of intentional murder under Count II of the indictment, because the “same murder was an element of the capital offense and the intentional murder conviction.” Borden, 711 So.2d at 503. See also Coral v. State, 628 So.2d 954, 958 (Ala.Cr.App.1992), aff'd, 628 So.2d 1004 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1387, 128 L.Ed.2d 61 (1994)(holding that the defendant’s conviction of the lesser-included offense of intentional murder under a count alleging the capital offense of murder-robbery and his conviction of the capital offense of murder-burglary violated the principles of double jeopardy where the same murder was an element of both convictions).’ ” ’ ”

57 So.3d at 819, quoting Mangione v. State, 740 So.2d 444, 449 (Ala.Crim.App.1998).

In the present case, Thomas was indicted for the first-degree robbery of both Charles Kelley and Patricia Bargin-ere. (C. 46, 48.) Two of Thomas’s capital-murder indictments charged him with intentionally murdering Kelley and Bargin-ere during the course of the same robberies. (C. 49, 50.) Like the appellant in Lewis, Thomas was convicted of lesser offenses—in this case, two counts of first-degree robbery—that were also elements of his capital-murder convictions. Accordingly, Thomas’s convictions for first-degree robbery violate the prohibition against double jeopardy and must therefore be vacated.

For the foregoing reasons, Thomas’s capital-murder convictions as well as his conviction for attempted murder are affirmed. However, this case is due to be remanded with instructions that the trial court set aside Thomas’s convictions for first-degree robbery. The trial 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.

AFFIRMED AS TO CAPITAL-MURDER CONVICTIONS AND ATTEMPTED-MURDER CONVICTION; REMANDED WITH INSTRUCTIONS AS TO ROBBERY CONVICTIONS.

WINDOM, P.J., and WELCH, KELLUM, and JOINER, JJ., concur.

      . The record on appeal contains two sets of transcripts that are separately numbered. The first set, denoted "Rl,” contains 538 pages of transcripts from Thomas’s youthful-offender application hearing, arraignment, scheduling conference, an ex parte hearing, pretrial motions, and an Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), hearing. The first 100 pages of that set are double numbered with pages 1048-1147 of the Clerk’s record. The second set, denoted "R2,” contains various other pretrial hearings, including the hearing regarding Kathy Richert’s testimony, as well as the trial and the sentencing proceedings.

      . The record reveals that the Alabama Bureau of Investigation conducted an investigation regarding the recordings and concluded that there was no misconduct on the part of the sheriff’s department.