author: STUART, Justice.

text:
    Timmy BLACKMON and Stephanie Blackmon v. Eddie POWELL d/b/a Powell Plumbing Company.
    1120442.
    Supreme Court of Alabama.
    June 7, 2013.

      John R. Parker, Daphne, for appellants.
    R. Brett Garrett of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee.
   STUART, Justice.

Timmy Blackmon and Stephanie Black-mon sued Eddie Powell d/b/a Powell Plumbing Company in the Pike Circuit Court, asserting negligence, wantonness, breach of implied warranties, and breach of contract after a water-supply line that Powell had installed in their house ruptured, causing extensive flooding and water damage. The trial court entered a summary judgment in favor of Powell; the Blackmons appeal. We affirm.

I.

In approximately April 2008, Timmy, a general contractor and homebuilder, approached Powell to do the plumbing for a new house the Blackmons were building as their personal residence. Powell had previously done work for Timmy on other construction projects, and Timmy states that he selected Powell to do the plumbing in his personal house because Powell was “reliable” and he and Powell had “a good relationship.” Timmy and Powell thereafter reached an oral agreement for Powell to do the plumbing in the house; Timmy later described the terms of that agreement as follows in his deposition:

“And we had a verbal agreement— [Powell] came out and looked at it, and we had a verbal agreement for him to plumb my house. We were supposed to supply the faucets and sinks. He was supposed to supply everything from the faucets, sinks — from the faucets and sinks down, including the supply line, drain lines, waterlines, plumbing lines, sewer lines to complete — to do a complete project on my house.”

Powell does not dispute these basic elements of their agreement, agreeing that the Blackmons were to supply the fixtures and, in return for an agreed-upon sum based upon the number of connections made, he was to install the fixtures and supply whatever else was needed to connect them to the main water and sewer lines and to make them functional.

In approximately September 2008, Powell went to the Blackmons’ house to install a vessel sink and waterfall faucet in an upstairs half-bathroom. Stephanie had purchased the sink and faucet on the Internet from separate sources, and, when Powell arrived, the Blackmons had placed the boxes containing those items in the half-bathroom where they were to be installed, as was the Blackmons’ custom for plumbing fixtures they had purchased. Upon opening the box containing the faucet, Powell discovered that two water-supply lines were included, and he accordingly used those supply lines during the installation to connect the hot and cold water to the faucet. After the installation was complete, Powell turned the water on to check for leaks and found none. Timmy also visually inspected the work and saw nothing wrong.

The next 18 months were apparently uneventful with regard to Powell’s plumbing installation, and the Blackmons and their guests used the sink and faucet in the upstairs half-bathroom without incident and without any signs of a problem or leakage. However, at some time on March 18, 2010, the cold-water-supply line running to the faucet broke at the point where the coupling threaded onto the base of the faucet, causing water to flood the bathroom and eventually other parts of the house. Timmy returned to the house at approximately 9:00 p.m. and, upon discovering the flooding, turned off the water-supply valve; however, at that point there was standing water throughout the house. He then telephoned Powell, who agreed to come over the next day.

Upon arriving at the house the next day, Powell tested the water pressure in the house and found it to be in the low to normal range and thus unlikely to have caused the water-supply line to rupture. Both Timmy and Powell agree that they have never seen a similar rupture in a water-supply line in all their years working as contractor and plumber, respectively, and, for all that appears, the rupture was apparently caused by some latent defect in the water-supply line that was not readily detectable. Notably, there is no evidence indicating that the rupture was attributable to any action or error committed by Powell during the installation.

On February 2, 2011, the Blackmons sued Powell, alleging that he was ultimately responsible for the damage to their house. Their complaint, as later amended, asserted claims of negligence, wantonness, breach of implied warranties, and breach of contract. The Blackmons subsequently moved the trial court to enter a summary judgment in their favor on all claims; Powell responded by also filing a motion for a summary judgment. Following an August 6, 2012, hearing on those motions, the trial court granted Powell’s motion, denied the Blackmons’ motion, and entered a judgment accordingly. The Blackmons’ subsequent motion to alter, amend, or vacate that judgment was denied by the trial court on November 26, 2012, and, on January 7, 2013, the Blackmons filed their notice of appeal to this Court.

II.

We review a summary judgment pursuant to the following standard:

“This 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. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12.”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

III.

The trial court entered a summary-judgment in favor of Powell on all four counts alleged by the Blackmons — negligence, wantonness, breach of implied warranties, and breach of contract. With regard to the negligence and wantonness claims, the Blackmons argue that Powell acted negligently or wantonly in installing a defective water-supply line in the upstairs half-bathroom. They do not argue that Powell committed any error during the actual installation process that caused the subsequent rupture; rather, his only error, they argue, was choosing to use the apparently defective supply line that came with the faucet. See the Blackmons’ brief, p. 14 (stating that “the claims of the Black-mons are not that Mr. Powell was deficient in his workmanship, it is that the product that he agreed to install and provide and was paid for as part of the contract, namely the supply line, which he consciously and voluntarily chose to use, failed”).

In completing the work the Blackmons contracted him to do, Powell had a duty to exercise due care. See Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 679 (Ala.2001) (“At common law, a duty of due care can accompany a contractual obligation.... ”), and Waters v. American Cas. Co. of Reading, Pa., 261 Ala. 252, 258, 73 So.2d 524, 529 (1953) (“When the contract does not in terms require reasonable care in doing the act stipulated to be done, the law imposes a duty — but does not imply a contract — to exercise due care in doing the act....”). The evidence in the record indicates that Powell installed the water-supply line in question and then tested it to verify that it was watertight, which it was. Timmy also reviewed the installation and apparently saw no problems, and the water-supply line thereafter worked as expected until the date of the rupture some 18 months later. As the party alleging negligence, the Blackmons bore the burden of putting forth evidence indicating that Powell had breached his duty to exercise due care; however, there is no evidence in the record that would indicate such a breach.

With regard to the Blackmons’ wantonness claim, there is no evidence indicating that Powell recklessly committed an act — or recklessly failed to commit a necessary act — that led to the ruptured water-supply line. See Armstrong Business Services, 817 So.2d at 679-80 (setting forth the elements of negligence and wantonness). Certainly, the mere fact that Powell used the new water-supply lines that were packaged with the faucet— which by all accounts appeared to be functional and which operated as intended for 18 months after the initial installation — is insufficient, without more, to create a genuine issue of material fact as to the negligence and wantonness claims. The summary judgment entered on the negligence and wantonness counts was accordingly proper.

The analysis of the Blackmons’ breach-of-contract and breach-of-implied-warranty-of-workmanship claims is related. As this Court explained in Turner v. Westhampton Court, L.L.C., 903 So.2d 82, 93 (Ala.2004), a breach-of-contract claim in a case like this is effectively the same as a breach-of-the-implied-warranty-of-workmanship claim:

“The [plaintiffs’] third allegation is that [the defendant homebuilder] breached the contract of sale by tendering a poorly built house. Specifically, the [plaintiffs] argue that [the defendant] contracted to build the house in accordance with the skill and abilities of a homebuilder and that [the defendant] failed to perform this contractual duty. While the [plaintiffs] characterize this as a cause of action for breach of contract, the cause of action is more accurately classified as one for the breach of the implied warranty of workmanship.
“The law implies a duty upon all contracting parties to use reasonable skill in fulfilling their contractual obligations. Sherrill v. Alabama Appliance Co., 240 Ala. 46, 50, 197 So. 1, 4 (1940); Mobile Life Ins. Co. v. Randall, 74 Ala. 170, 176-77 (1883). In the context of the sale of a new house, a builder-vendor such as [the defendant] is obligated to construct a house that it will offer for sale in a workmanlike manner. Stephens v. Creel, 429 So.2d 278, 280 (Ala.1983). This obligation manifests itself in the implied warranty of workmanship. While improper or faulty construction constitutes a technical performance of the contract and may survive a pure breach-of-contract action, an action alleging the breach of an implied warranty, such as the implied warranty of workmanship, can overcome this obstacle.”

Thus, in this case, Powell technically fulfilled his obligations under his contract with the Blackmons by completing the tasks he was hired to do, regardless of the quality of the plumbing services he provided. However, the Blackmons may nevertheless recover for any poor workmanship by way of a breach-of-the-implied-warranty-of-workmanship claim if there is evidence indicating that Powell failed “to use reasonable skill in fulfilling [his] contractual obligations.” 903 So.2d at 93. See also C.P. Robbins & Assocs. v. Stevens, 53 Ala.App. 432, 436, 301 So.2d 196, 199 (Ala.Civ.App.1974) (“It is a general rule in contracts for work or services that there is implied a duty to perform with that degree of skill or workmanship which is possessed by those of ordinary skill in the particular trade for which one is employed.”). We have discussed supra the evidence indicating that Powell exercised due care in the course of completing his plumbing work for the Blackmons and concluded that the Blackmons failed to put forth evidence refuting that evidence. Similarly, we hold that the Blackmons failed to put forth any evidence indicating that Powell did not perform his work with reasonable or ordinary skill. The trial court therefore properly entered a summary judgment in favor of Powell on the breach-of-contract and breach-of-implied-warranty-of-workmanship claims.

Finally, we note that count three of the Blackmons’ complaint asserts a general breaeh-of-implied-warranties claim. We have already discussed a breach-of-the-implied-warranty-of-workmanship claim; however, this count arguably alleges a breach-of-the-implied-warranty-of-merchantability claim as well. This Court explained implied warranties of merchantability as follows in Daimler- Chrysler Corp. v. Morrow, 895 So.2d 861, 864 (Ala.2004):

“The implied warranty of merchantability is found in Ala.Code 1975, § 7-2-814. ‘[A] warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.’ § 7-2-314(1). ‘Goods to be merchantable must be at least such as ... [a]re fit for the ordinary purposes for which such goods are used.’ § 7-3-314(2)(c). ‘[T]he term [merchantability] means that a good sold carries with it an inherent soundness which makes that good suitable for the purpose for which it was designed.’ Agri-Business Supply Co. v. Hodge, 447 So.2d 769, 773 (Ala.Civ.App.1984).”

As we have emphasized, however, “implied warranties [of merchantability] are applicable only to sellers.” Ex parte General Motors Corp., 769 So.2d 903, 910 (Ala.1999) (emphasis added). In this case, the water-supply line that ruptured was included with the faucet purchased by the Blackmons and supplied to Powell; it was not provided or sold by Powell. The linchpin of a breach-of-the-implied-warranty-of-merchantability claim is privity; accordingly, Powell would be unable to pursue any claim against the seller and/or presumed manufacturer of the defective water-supply line. See Wellcraft Marine v. Zarzour, 577 So.2d 414, 419 (Ala.1990) (“There is no right of action on an implied warranty theory against a manufacturer for property damage without privity of contract.” (emphasis omitted)). Thus, a breach-of-the-implied-warranty-of-merchantability claim might properly be asserted by the Blackmons against the Internet seller of the defective water-supply line, but such a claim would be inappropriate between the Blackmons and Powell. Under these facts, Powell cannot be considered to be a seller of the water-supply line that ruptured, and the breach-of-the-implied-warranty-of-merchantability claim asserted against him must fail.

IV.

The Blackmons sued Powell, asserting negligence, wantonness, breach of implied warranties, and breach of contract after a water-supply line Powell had installed in their house ruptured, resulting in water damage throughout the house. Both sides moved for a summary judgment in their favor, and the trial court entered a summary judgment in favor of Powell. That judgment is supported by the evidence in the record and is hereby affirmed.

AFFIRMED.

MOORE, C.J., and PARKER and WISE, JJ., concur.

SHAW, J., concurs in the result.

      . The Blackmons state that they no longer have any records from which they might identify the Internet sources from which they purchased the sink and the faucet.


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    James SCHUBERT v. Wesley SMITH.
    2111217.
    Court of Civil Appeals of Alabama.
    May 3, 2013.
    Certiorari Denied June 7, 2013 Alabama Supreme Court 1120960.

      James R. Foley, Huntsville, for appellant.
    Edward E. Wilson, Jr., of Tatum Wilson PC, Huntsville, for appellee.
   DONALDSON, Judge.

James Schubert, the plaintiff, appeals from a summary judgment in favor of Wesley Smith, the defendant, with respect to claims of wantonness asserted against Smith arising out of an automobile accident. We affirm the judgment.

Facts and Procedural History

Schubert and Smith were friends. Both were students at Madison County High School. Smith provided Schubert with a means of transportation to and from school. Schubert never paid for the rides because the two were friends, and the record does not indicate that he purchased gas for Smith. On September 5, 2008, Smith and Schubert left school and proceeded in the direction of a friend’s house on Mountain Lane in Madison County. The weather was clear, and the roadway was dry. Smith was traveling at a rate of speed in excess of the posted speed limit of 25 miles per hour. Schubert told Smith to slow down before the accident occurred, and Smith complied by decreasing speed. After proceeding over a hill and while the vehicle was entering into a left turn, the back tires of the vehicle left the roadway. As a result, the vehicle turned sideways, the back end of the vehicle lifted off the ground, and the entire vehicle left the roadway. The rear of the vehicle crashed into a concrete wall. The vehicle then rolled over on its top. Schubert received serious injuries as a result of the accident. In a letter to Schubert dated March 18, 2009, Smith apologized to Schubert for the accident. Smith further stated in the letter that, on the day of the accident, he had not cared whether he died, because he was mad about some personal issues he was going through at the time.

On May 13, 2010, Schubert sued Smith asserting claims of negligence and wantonness. On January 23, 2012, Smith filed a motion for a summary judgment, asserting that Alabama’s guest statute, § 32-1-2, Ala.Code 1975, barred any claim of negligence and that there was no evidence of “wanton misconduct” by Smith. Following a hearing, the trial court entered a summary judgment on June 12, 2012, in favor of Smith. Schubert filed a motion to alter, amend, or vacate, which the trial court denied on July 12, 2012. Schubert filed a timely notice of appeal to the supreme court on August 22, 2012. The supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Standard, of Review

“This 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. SouthTrust 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).”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

Discussion

Schubert concedes that he was a guest in Smith’s vehicle, thus invoking the applicability of Alabama’s guest statute, which bars his negligence claim.

“In Ex parte Anderson, 682 So.2d 467 (Ala.1996), this Court discussed the concept of wantonness in the context of operating an automobile:
“ ‘In a case subject to the Guest Statute, a plaintiffs showing of “wanton misconduct” requires more than a showing of some form of inadvertence on the part of the driver; it requires a showing of some degree of conscious culpability. George v. Champion Ins. Co., 591 So.2d 852 (Ala.1991).
“ ‘What constitutes wanton misconduct depends on the facts presented in each particular case. Central Alabama Electric Cooperative v. Tapley, 546 So.2d 371 (Ala.1989); Brown v. Turner, 497 So.2d 1119 (Ala.1986); Trahan v. Cook, 288 Ala. 704, 265 So.2d 125 (1972). A majority of this Court, in Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc., 510 So.2d 142 (Ala.1987), emphasized that wantonness, which requires some degree of consciousness on the part of the defendant that injury is likely to result from his act or omission, is not to be confused with negligence (i.e., mere inadvertence):
“ ‘ “Wantonness is not merely a higher degree of culpability than negligence. Negligence and wantonness, plainly and simply, are qualitatively different tort concepts of actionable culpability. Implicit in wanton, willful, or reckless misconduct is an acting, with knowledge of danger, or with consciousness, that the doing or not doing of some act will likely result in injury....
“ ‘ “Negligence is usually characterized as an inattention, thoughtlessness, or heedlessness, a lack of due care; whereas wantonness is characterized as an act which cannot exist without a purpose or design, a conscious or intentional act. ‘Simple negligence is the inadvertent omission of duty; and wanton or willful misconduct is characterized as such by the state of mind with which the act or omission is done or omitted.’ McNeil v. Munson S.S. Lines, 184 Ala. 420, [423], 63 So. 992 (1913)....
“ ‘ “ ‘Willful and wanton conduct has a well-defined meaning at law. It is sometimes expressed in terms of “reckless disregard of the safety of another.” Willful and wanton conduct should not be confused with negligence. It has been correctly stated that the two concepts are as “unmixable as oil and water.” ’
Willfulness or wantonness imports premeditation, or knowledge and consciousness that the injury is likely to result from the act done or from the omission to act, and strictly speaking, is not within the meaning of the term “negligence,” which conveys the idea of inadvertence, as distinguished from premeditation or formed intention.’ ”
“ ‘510 So.2d at 145-46 (citations omitted). See also, Central Alabama Electric Cooperative v. Tapley, 546 So.2d 371 (Ala.1989).’
682 So.2d at 469-70.”

Phillips ex rel. Phillips v. United Servs. Auto. Ass’n, 988 So.2d 464, 467-68 (Ala.2008).

On appeal, Schubert contends that the trial court erred in finding that he did not present substantial evidence as to whether Smith acted wantonly in the operation of his vehicle on the date of the accident.

In support of his contention that Smith’s actions constitute substantial evidence creating a genuine issue of material fact as to whether Smith acted wantonly, Schubert cites Barker v. Towns, 747 So.2d 907 (Ala.Civ.App.1999), Allen v. Hill, 758 So.2d 574 (Ala.Civ.App.1999), and Coleman v. Smith, 901 So.2d 729 (Ala.Civ.App.2004). In Barker, Towns, the driver, failed to make a complete stop at a stop sign. Both Towns and Barker, the passenger, saw a truck approaching the intersection at a high rate of speed. Despite the fact that the truck had the right-of-way, Towns proceeded to enter the intersection in an effort to cross the intersection before the truck arrived. In overturning the trial court’s summary judgment in favor of Towns, this court stated:

“Barker presented evidence tending to show that Towns entered the intersection after seeing the truck approaching at a high rate of speed. In addition, the truck driver testified that he did not see Towns stop at the stop sign, and there is no dispute that the truck driver had the right-of-way. These facts constituted substantial evidence supporting the wantonness claim; therefore, the issue should have been presented to the jury.”

Barker, 747 So.2d at 909.

In Allen, conflicting testimony concerning whether Hill, the driver, stopped at a stop sign resulted in this court’s reversing the trial court’s summary judgment in favor of Hill. Allen, a minor child, was injured in an accident when Hill’s vehicle collided with another vehicle. Allen’s mother sued Hill, alleging that Allen’s injuries were caused by Hill’s willful or wanton misconduct. Allen’s mother offered the testimony of Bass, the driver of the other vehicle involved in the collision. Bass indicated that he had witnessed Hill’s vehicle approach the intersection at a speed of 50-60 miles per hour. However, Bass also testified that he saw Hill’s vehicle only after it had entered the intersection. Due to those inconsistent statements, the trial court granted Hill’s motion to strike Bass’s testimony and entered a summary judgment for Hill. This court concluded that the trial court had improperly stuck Bass’s testimony and that the testimony “createfd] a genuine issue of material fact: whether Hill drove wantonly through the intersection. A jury could reasonably infer from Bass’s testimony that Hill did not stop at the stop sign and drove through the intersection at a high rate of speed.” Allen, 758 So.2d at 576.

In Coleman, the mother of Coleman, a minor, sued Smith, the driver of a vehicle in which Coleman had been a passenger. Smith had an accident while driving his vehicle at a high rate of speed and losing control of the vehicle after being forced off the road by an oncoming vehicle. Coleman was injured in the accident. At trial, Smith moved for a judgment as a matter of law before the case was submitted for a decision, based upon the guest statute. The trial judge granted the motion. Coleman’s mother appealed, and this court held:

“The road was narrow, with no delineated center line, and consisted of tar and loose gravel. Additionally, the road had what was described as a ‘blind hill’ that prevented oncoming traffic from seeing each other until they crested the hill. After reviewing the record, we conclude that the evidence of Smith’s rate of speed, when coupled with evidence of the conditions of the road in question, raised a question of fact to be resolved by the jury as to whether Smith’s actions rose to the level of wantonness as defined by our supreme court.”

Coleman, 901 So.2d at 732-33.

In this case, Schubert argues that evidence as to the speed at which Smith was traveling, when coupled with evidence of the approaching hill, the sharp curve, Smith’s familiarity with the road traveled, and Smith’s mental state, amounts to substantial evidence of wanton misconduct.

In support of his contention that Schubert has not established the elements of wantonness, Smith cites Tolbert v. Tolbert, 903 So.2d 103 (Ala.2004), Ex parte Anderson, 682 So.2d 467 (Ala.1996), Dorman v. Jackson, 623 So.2d 1056 (Ala.1993), and Phillips v. United Services Automobile Ass’n, 988 So.2d 464 (Ala.2008). In Tolbert, a minor was killed while riding as a guest in his grandmother’s vehicle. The grandmother lost control of her vehicle because she failed to appreciate the dangerous conditions of the road, including the facts that the roadway was slick due to a light rain and that the roadway proceeded downhill along double “S” curve. The trial court entered a summary judgment in favor of the grandmother. Our supreme court concluded that, although the evidence demonstrated that the grandmother had lost control of her vehicle due to “driver error” related to her failure to appreciate the hazard created on the curving downhill road by the slickness of the road surface resulting from the recent light rain, it could not be concluded that the grandmother had been speeding, except “as a matter of speculation.” Tolbert, 903 So.2d at 118. Although the supreme court concluded that the grandmother’s actions likely rose to the level of negligence, it held that summary judgment for the grandmother was proper on the issue of wantonness.

In Anderson, Anderson, the driver, pulled into a lane of traffic while attempting to make a left turn at an intersection. Her view of the oncoming vehicles was obstructed by other vehicles in the intersection. Further, the roads were slick due to a light rain. Despite the obstruction to her vision and the wet roadway, Anderson attempted to cross the intersection and was struck by another vehicle. Hughes, a guest in Anderson’s car, was injured. In affirming the summary judgment in favor of Anderson, our supreme court stated:

“A review of the facts convinces us that Hughes did not present substantial evidence from which a factfinder could infer that the defendant was guilty of “wanton conduct,’ as defined in Alabama case law. In reaching this conclusion, we have viewed the evidence in a light most favorable to the plaintiff, as we are required by law to do; we can find no evidence that Anderson acted in a wanton manner. In her affidavit, Anderson states that she waited at the intersection until she believed that it was safe to turn. Although Anderson may have been negligent in turning left while her view of the oncoming traffic was blocked, we do not believe that this evidence is sufficient to prove that she was guilty of ‘wanton conduct,’ as that term is defined in our cases. In other words, viewing the evidence most favorably to Hughes, we find no substantial evidence that the defendant Anderson acted ‘with knowledge of danger, or with consciousness, that the doing [of the act would] likely result in injury.’ Lynn Strickland [Sales & Service, Inc. v. Aero-Lane Fabricators, Inc.], 510 So.2d [142,] 145 [(Ala.1987)]. In addition, this Court has held on at least two previous occasions that evidence of conduct similar to Anderson’s did not constitute substantial evidence of wanton conduct. See, Dorman v. Jackson, 623 So.2d 1056 (Ala. 1998); George v. Champion Insurance Co., 591 So.2d 852 (Ala.1991).”

Ex parte Anderson, 682 So.2d at 470.

In Dorman, Jackson, the driver, turned left at an intersection in front of an oncoming vehicle, resulting in a collision and injuries to Dorman, a guest in Jackson’s vehicle. Jackson had slowed down upon approaching the intersection, but he failed to see the oncoming car. Our supreme court determined that the facts presented did not rise to the level of wantonness and affirmed the trial court’s summary judgment in favor of Jackson.

In Phillips, Catlin, the driver, became distracted when she took her eyes off the roadway to wave at friends. As a result, she allowed her vehicle to cross the center line of the road. She ultimately lost control of her vehicle, and the vehicle flipped over, injuring Phillips, a guest in the vehicle. Phillips argued that Catlin had knowledge or consciousness of the danger presented in the situation because Catlin had taken a driver’s education course in which she learned the rules of conduct for driving. Phillips argued that Catlin’s decision to take her eyes off the road to wave at the friends amounted to a conscious disregard for the rules she had learned in her driver’s education course and that Cat-lin’s decision to take her eyes off the road was with made knowledge of the potential consequences. Our supreme court held as follows:

“In the present case, even reviewing the evidence, as we must, in the light most favorable to [Phillips], the nonmov-ant for summary judgment, we agree with USAA[, Catlin’s insurer,] that [Phillips] has not presented substantial evidence indicating that [Catlin] acted wantonly. [Phillips] has not put forward substantial evidence tending to show that [Catlin] had ‘knowledge and consciousness’ that a likely result of momentarily waving to her friends was an automobile accident in which [Phillips] would be injured. What [Phillips] has shown is that [Catlin] had knowledge as to how to properly and safely operate an automobile. Presumably, anyone who obtains a driver’s license in the State of Alabama has such knowledge. See, generally, Ala.Code 1975, § 32-6-3(a) (‘Every person who applies for an initial Alabama driver’s license issued by the Department of Public Safety under this article shall be given and successfully pass an examination before the issuance of a driver’s license.’). [Phillips’s] reasoning would convert every failure to properly or safely operate an automobile resulting from ‘inattention, thoughtlessness, ... heedlessness, [or] a lack of due care’ into an act of wantonness on the ground that the driver knew or should have known that such inattention, thoughtlessness, or heedlessness is improper.”

Phillips, 988 So.2d at 470-71.

In the case before us, we are not persuaded that Smith’s actions amount to anything more than inadvertence. Nor can we conclude that Smith possessed knowledge of the danger created by his actions or a degree of consciousness that his driving would result in Schubert’s injuries. Although Smith was operating his vehicle at a high rate of speed and likely in a negligent manner, the record reflects that he began to slow the vehicle upon approaching the turn and after a warning from Schubert. Additionally, although testimony indicates that Smith might still have been exceeding the speed limit upon approaching the turn, even after slowing down, there was no other evidence, when coupled with the evidence regarding the rate of speed at which the vehicle was traveling, that would amount to substantial evidence demonstrating that Smith’s actions were wanton. Evidence of speed alone does not amount to wantonness. Hicks v. Dunn, 819 So.2d 22, 24 (Ala.2001). Unlike in Coleman, where the narrow roadway with an unmarked center lane was covered in tar and gravel, the conditions of the roadway in the present case were clear and dry. In Tolbert and Anderson, the drivers had knowledge of the slick roadways, yet the court still determined that their inadvertence did not rise to the level of wanton behavior.

In an effort to show that Smith acted with consciousness that an injury would likely result from his actions, Schubert has provided a letter written by Smith to Schubert several months after the accident. In that letter, Smith apologized to Schubert and stated that, on the day of the accident, he had not cared if he died, because of personal issues he had been experiencing at the time. Although that letter serves as evidence indicating that Smith was possibly depressed at the time of the accident, it does not serve as evidence indicating that Smith took any action in his driving based on his being depressed. The letter does not demonstrate that Smith had knowledge or consciousness that the vehicle would leave the roadway due to traveling at a rate of speed higher than the posted speed limit.

Because there were no genuine issues of material fact as to whether Smith acted wantonly, summary judgment was appropriately entered in favor of Smith. We therefore affirm the judgment.

AFFIRMED.

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


author: PITTMAN, Judge.

text:
    Tommy KING, Jr., et al. v. The AFRICAN METHODIST EPISCOPAL CHURCH, INC.
    2111119.
    Court of Civil Appeals of Alabama.
    June 7, 2013.
    Christina D. Crow of Jinks, Crow & Dickson, PC, Union Springs, for appellants.
    Tom L. Larkin of The Larkin Law Firm, Birmingham; and Patrick J. Ballard of Ballard Law Office, Birmingham, for appellee.
   PITTMAN, Judge.

This appeal, taken by six former trustees of a congregation of a hierarchical national church entity, concerns the validity of a purported transfer of ownership of real property that has been utilized by the local congregation in fellowship with that larger entity for a number of decades.

In July 2011, The African Methodist Episcopal Church, Inc. (“the national church corporation”), a nonprofit corporation based in Philadelphia, Pennsylvania, brought a civil action in the Bullock Circuit Court against Tommy King, Jr., Timothy M. Tarver, Annie Ellison, Jessie Lee Hill, Ulysses Turner, and Wilson Turner (collectively, “the defendant trustees”), who were six of the seven trustees of the Great Hope African Methodist Episcopal Church (“Great Hope AME Church”), an unincorporated church body possessing six parcels of real property in Bullock County that have been used for religious purposes. According to the complaint, as amended, filed by the national church corporation, the defendant trustees unilaterally announced the withdrawal of Great Hope AME Church from its association with the national church corporation as of September 25, 2011; the national church corporation alleged that the defendant trustees had breached their fiduciary duties as trustees and had failed to follow the Book of Discipline of the African Methodist Episcopal Church — 2008 and sought, among other things, injunctive relief preventing the defendant trustees from conveying the assets of Great Hope AME Church and interfering with the appointment of pastors by presiding bishops of the national church corporation. The defendant trustees responded by asserting that the national church corporation had no standing because, they said, the instruments conveying real property to Great Hope AME Church did not contain any language indicating an intent to convey any interest in those properties to the national church corporation. After an ore tenus proceeding, the trial court entered a preliminary injunction and directed the defendant trustees to take no action to remove Great Hope AME Church from the national church corporation.

In November 2012, the national church corporation filed a motion for a summary judgment on its claims, relying upon deposition testimony of the defendant trustees and the exhibits introduced into evidence at the preliminary-injunction hearing. The national church corporation contended that there was no genuine issue of material fact and that it was entitled to a judgment declaring void the defendant trustees’ purported transfer by quitclaim deed of six parcels of real property held by Great Hope AME Church to a nondenominational unincorporated entity called simply “Great Hope Church.” The defendant trustees filed a response in opposition in which they incorporated their assertion that they were entitled to a summary judgment in their favor, but they adduced no additional evidence apart from a number of affidavits of individual members of Great Hope AME Church expressing support for the withdrawal of Great Hope AME Church from the fellowship of the national church corporation. The trial court entered a summary judgment in favor of the national church corporation. The defendant trustees appealed; their appeal was transferred to this court pursuant to Ala. Code 1975, § 12-2-7(6).

Although we note that the trial court held an ore tenus proceeding before entering its preliminary injunction in favor of the national church corporation, and that the national church corporation quotes liberally from the transcript of that proceeding in its appellate brief, the judgment under review is a summary judgment entered after the parties had filed additional evidentiary submissions following the entry of the injunction. We thus apply the familiar summary-judgment standard of review:

“A motion for summary judgment tests the sufficiency of the evidence. Such a motion is to be granted when the trial court determines that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The moving party bears the burden of negating the existence of a genuine issue of material fact. Furthermore, when a motion for summary judgment is made and supported as provided in Rule 56, [Ala. R. Civ. P.,] the nonmovant may not rest upon mere allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Proof by substantial evidence is required. The reviewing appellate curt must apply the same standard utilized by the trial court when reviewing a summary judgment.”

Sizemore v. Owner-Operator Indep. Drivers Ass’n, Inc., 671 So.2d 674, 675 (Ala.Civ.App.1995) (citations omitted).

The trial court, in entering its summary judgment, posited that “[t]his is not a property dispute between [the national church corporation] and Great Hope [AME] Church”; rather, that court opined, the dispute centered around “the authority of the then trustees to convey the subject property without a vote of the church members at a duly called meeting authorizing the trustees to convey the subject property.” As the trial court correctly noted, there was no vote on the part of Great Hope AME Church to withdraw from the national church corporation nor any vote by the membership of Great Hope AME Church to authorize the trustees to convey the six parcels identified in the quitclaim deed purporting to convey the parcels to “Great Hope Church.” That said, the trial court based its judgment in favor of the national church corporation as to that issue upon that court’s reading of two Alabama statutes pertaining to conveyancing by entities incorporated in Alabama that include various churches, public societies, and graveyard owners, Ala.Code 1975, §§ 10A-20-2.06 and 10A-20-2.07; however, as the plain language of § 10A-20-2.06 indicates, the provisions of those statutes speak only to “[t]he trustees or other authorized agents of any church, conference of churches, society, association, or other corporation organized under this article” (emphasis added), meaning article 2 of Chapter 20 of the Corporations title of the Alabama Code of 1975. It is undisputed, however, that neither Great Hope AME Church nor the national church corporation were, in fact, organized or incorporated under Alabama law, much less under the article whose provisions the trial court cited as the basis for its judgment.

We are thus left with the question whether the trial court correctly entered the summary judgment regardless of its reasoning. See McMillan, Ltd. v. Warrior Drilling & Eng’g Co., 512 So.2d 14, 26 (Ala.1986) (opinion on application for rehearing) (appellate court “will affirm a summary judgment if it was properly granted, notwithstanding the fact that the trial court gave the wrong reasons for granting it”). Here, the national church corporation posits on appeal that the summary judgment was correct because, it says, the national church corporation is the “beneficial owner” in trust of all six parcels at issue and has the power to seek judicial protection of its property rights when trustees, such as the defendant trustees in this case, do not act to protect such a trust. The defendant trustees, for their part, posit that Great Hope AME Church held title to four of the six parcels at issue by and through its trustees (two parcels named in the quitclaim deed to “Great Hope Church” were previously deeded, respectively, to “African Methodist Episcopal Church South” and jointly to “Great Hope Home Aid Society” and “Great Hope Lodge Number 839” rather than Great Hope AME Church). Thus, despite the trial court’s assertion that the case does not involve a “property dispute,” the question of ownership and the question of authority to convey essentially merge in the factual context of this case.

But for the identity of the parties appealing in this case — the local trustees of a church seeking to separate from a hierarchical church entity — this case would be precisely parallel to Ex parte Central Alabama Conference, African Methodist Episcopal Zion Church in America, 860 So.2d 865 (Ala.2003) (hereinafter “Central Alabama Conference ”). In Central Alabama Conference, a parcel of real property was conveyed to the trustees of a local unincorporated church entity, then recon-veyed to a local unincorporated church entity whose name included a reference to a larger hierarchical church entity (the African Methodist Episcopal Zion Church), then conveyed once more to the local unincorporated church entity. The supreme court reversed a decision of this court affirming a summary judgment in favor of the local church trustees and upholding the validity of the third conveyance, noting that “there is no indication that the grantors intended to convey the property to the local church and to exclude the hierarchical church,” 860 So.2d at 868, and that other, extrinsic evidence would bear on the proper interpretation of the power of the trastees of the local church to convey the property:

“[T]he AME Zion Church [the hierarchical church entity] presented evidence indicating that Franklin Church [the local incorporated church], throughout its history, has accepted benefits from the AME Zion Church. The AME Zion Church has provided pastors, the pastors’ health insurance and retirement benefits, worship materials, and financial assistance in certain situations. Franklin Church has followed the Book of Discipline, it has been known throughout the community as an AME Zion member church, and it has followed the customs and policies of the AME Zion Church. These facts support the Central Alabama Conference’s claim that a hierarchical relationship exists between the AME Zion Church and Franklin Church.... [T]his Court [has] held that when national and local churches have participated in a longstanding hier-archal relationship, the local church may not unilaterally sever that relationship.
“... [A] dispute exists as to the intent of the initial grantors of the property: whether they intended to convey the property to the Franklin Church to the exclusion of any national church or whether they intended to convey the property to the AME Zion Church. Likewise, the ‘trust clause’ in the Book of Discipline, as it relates to the [second] deed deeding the property to the ‘Trustees of the Franklin AME Zion Church,’ creates a genuine issue of material fact as to who is the true property owner.”

860 So.2d at 868-69.

Here, the instruments previously conveying the four parcels identified in the quitclaim deed to “Great Hope Church” as parcels 1, 4, 5, and 6 were placed in the record at the hearing on the request for injunctive relief, but they do not categorically exclude the hierarchical church involved. Parcel 1 was conveyed to “Great Hope AME Episcopal Church,” while Parcel 4 was conveyed to two individuals as “trustees of Great Hope A.M.E./Church” and parcels 5 and 6 were conveyed to “Great Hope A.M.E. Episcopal Church, by and through its Trustees.” Parcels 2 and 3, which were previously conveyed, respectively, to the African Methodist Episcopal Church South (which, for all that appears in the record, looks to be a predecessor entity to the national church corporation) and to two allied aid agencies, are similarly not shown to be definitively within the trustees’ unilateral conveyancing power. As was true in Central Alabama Conference, the evidence adduced at the preliminary-injunction hearing tended to show that the local church in this case adhered to a book of discipline published by a national hierarchical church that provided that church properties are held in trust for the benefit of the hierarchical church; however, Central Alabama Conference indicates that such provisions are merely probative evidence and are not controlling as to the inquiry of who has the right to convey particular parcels of church property.

On the authority of Central Alabama Conference, we must conclude that the trial court erred in entering, without benefit of a trial, a judgment in favor of the national church corporation in this case. Material issues of fact remain to be tried as to the authority of the defendant trustees to convey the six parcels at issue. Although we have no quarrel with the national church corporation’s standing to seek relief from the defendant trustees as to the potential removal, in effect, of a constituent church body from the wider body of the hierarchical church, we cannot agree that the summary judgment entered by the trial court here is correct as a matter of law. The judgment is reversed, and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    Stuart C. DUBOSE v. Allison T. DUBOSE.
    2120007.
    Court of Civil Appeals of Alabama.
    June 7, 2013.
    James M. Gaines and Nancy S. Gaines of Gaines & Gaines, L.L.C., Magnolia Springs, for appellant.
    Submitted on appellant’s brief only.
   On Application for Rehearing

PER CURIAM.

This court’s opinion of March 22, 2013, is withdrawn, and the following is substituted therefor.

Stuart C. Dubose (“the husband”) appeals from a judgment divorcing him from Allison T. Dubose (“the wife”). Among other things, the judgment also divided the parties’ marital property and ordered the husband to pay child support. The judgment in this case comprises three documents: an August 4, 2009, order divorcing the parties; a March 5, 2010, order dividing the marital property; and an August 17, 2012, order determining the husband’s child-support obligation.

In this appeal, the husband contends that the August 4, 2009, order divorcing the parties violated Alabama law because it was based only on the stipulation of the parties, “without any proof of the grounds for the divorce ever being presented or considered” by the trial court. Specifically, the husband says, the August 4, 2009, order violated § 80-2-3, Ala.Code 1975, which “forbid[s] divorce by consent.” Penny A. Davis & Robert Earl McCurley, Jr., Alabama Divorce, Alimony & Child Custody Hornbook § 9-8 at 116 (4th ed.2005).

The record indicates the following information relevant to a disposition of this issue. On March 25, 2008, the wife filed a complaint for a divorce. As grounds for the divorce, the wife alleged incompatibility of temperament that was irremediable and irreconcilable and that there had been an irretrievable breakdown of the marriage. During the pendency of the action, the trial court awarded the wife possession of the marital residence, custody of the children, pendente lite alimony and child support, and an attorney fee. The wife was also awarded a temporary restraining order against the husband. The husband is a former circuit judge from Clarke County, and a number of circuit judges recused themselves from this matter. A Perry County district judge was appointed to preside over this case. A special master also was appointed to inventory and value the property in the marital estate. Discovery was propounded, but, as the trial court noted in an order dated July 9, 2009, discovery issues “plagued this case from the get go and continue to this date.” In the July 9, 2009, order, which the trial court stated was entered after a telephone conference between the trial court and the parties’ attorneys, the trial court ordered, among other things, that the wife and the husband “stipulate to the divorce leaving all other relative matters for trial.” One week later, on July 16, 2009, the trial court entered an order stating:

“The Court finds that for clarity of the record in the case and based upon the stipulation of the parties to being divorced through their respective legal counsel, said counsel for both parties shall file a stipulation to divorce within fourteen (14) days of this order.”

On July 18, 2009, the wife filed a stipulation to divorce in which she stated that she did “hereby completely and totally stipulate to the court granting a divorce in the above action. I am filing this statement pursuant to the court’s July 16, 2009, court order.” The stipulation did not state grounds for a divorce. Likewise, on July 24, 2009, the husband’s attorney filed a stipulation to divorce, stating that he had had a telephone consultation with the husband and that the husband had agreed to a stipulation to divorce. The stipulation stated that “the Court may enter a divorce while reserving jurisdiction to try the property and support issues.” Like the wife’s stipulation, the husband’s stipulation did not state grounds for a divorce.

On August 4, 2009, the trial court entered an order divorcing the parties. In the order, the trial court stated that “[t]his cause, coming on to be heard upon the pleadings and the stipulation of [the wife] and [the husband], this cause was submitted for final judgment.” The trial court then went on to divorce the parties on the ground of incompatibility of temperament. The order also provided that the trial court was retaining jurisdiction as to all other matters at issue and that it intended

“to allow evidence at trial, if this matter is not decided by default prior to then, as to child custody, child support, permanent alimony, attorneys fees, and other matters as stated in the [wife’s] complaint and the assets of the parties. This court shall not hear evidence as to the grounds for divorce as this is being decreed herein except as that evidence which may be relevant to any remaining issues.”

As mentioned, the husband relies on § 30-2-3 as the basis for his assertion that the trial court could not properly enter a divorce judgment only on the parties’ stipulations. That statute provides:

“No judgment can be entered on the confession of the parties, or either of them, or if it appear that adultery was committed by either, with the consent of the other, for the purpose of obtaining a divorce, or where both parties have committed adultery, or where there has been a condonation of adultery by the admission of the offending party to conjugal embraces after knowledge of the commission of the crime, or when the husband knew of or connived at the adultery of the wife.”

The prohibition of consensual divorces survived the legislature’s enactment of “no-fault” divorces in 1971, when new statutory grounds for granting a divorce were added to the existing grounds. See § 30-2-1, Ala.Code 1975. The new, “no-fault” grounds authorized a circuit court

“(7) Upon application of either the husband or wife, when the court is satisfied from all the testimony in the case that there exists such a complete incompatibility of temperament that the parties can no longer live together[; or]
“(9) Upon application of either party, when the court finds there has been an irretrievable breakdown of the marriage and that further attempts at reconciliation are impractical or futile and not in the best interests of the parties or family.”

§ 30-2-1 (a)(7) and (9).

In Phillips v. Phillips, 49 Ala.App. 514, 520-21, 274 So.2d 71, 77 (Civ.1973), this court discussed the effect of “no-fault” divorces on the prohibition of consensual divorces, stating:

“[T]he statutory ground of incompatibility does not permit the court to dissolve a marriage merely because its termination is desired by one or both parties, or that, conversely, when incompatibility of temperament is shown, a divorce may not be denied solely because the defending spouse voices opposition to its granting.
“A contrary holding would make incompatibility dependent in its application upon an agreement or a stipulation between the parties, and thus furnish a vehicle for a consensual divorce which the statute did not intend to sanction and which would be contrary to Tit. 34, § 26, Code of Alabama 1940 [a predecessor statute to § 30-2-3]. The condition or state of affairs constituting incompatibility must exist as a fact and proof thereof must be submitted by the proponent.”

As Professors Davis and McCurley noted in their treatise on divorce, “[t]he statutory ground for divorce of incompatibility does not sanction consensual divorce, since this would be contrary to the intent of the Alabama statute forbidding divorce by consent.” Alabama Divorce, Alimony & Child Custody Hornbook § 9-8 at 116, citing § 30-2-3 and Phillips, supra.

In Wright v. Wright, 55 Ala.App. 112, 313 So.2d 540 (Civ.1975), the plaintiff sought a divorce on the ground of incompatibility. The case was submitted to the trial court on a stipulation of facts, including the stipulation that “ ‘a complete incompatibility of temperament exists between the parties.’ ” 55 Ala.App. at 113, 313 So.2d at 541. The judgment, which granted a divorce on the ground of incompatibility, stated “that the case was submitted without testimony on the pleadings and the stipulation of facts by agreement of the parties and their attorneys.” Id.

This court reversed the trial court’s judgment, explaining:

“Title 34, Section 26 of the Code of Alabama (1940) [a predecessor statute to § 30-2-3] prohibits the securing of a divorce upon the confession of the parties. The establishment of grounds for a divorce by testimony or evidence other than by agreement is jurisdictional to the granting of the divorce and cannot be waived by the parties. Meares v. Meares, 256 Ala. 596, 56 So.2d 661 [(1952)]; Johns v. Johns, 49 Ala.App. 317, 271 So.2d 514 [(Civ.1973)]; Helms v. Helms, 50 Ala.App. 453, 280 So.2d 159 [(Civ.1973)].”

Wright, 55 Ala.App. at 114, 313 So.2d at 541-42.

This court reached a similar conclusion in Johns v. Johns, 49 Ala.App. 317, 271 So.2d 514 (Civ.1973). In that case, as in the case at bar, the evidentiary hearings before the court were limited to matters of support and the division of property. There was no testimony regarding grounds for the divorce, because, according to the trial court, that issue had been agreed upon. In reversing the judgment, this court held:

“Such procedure would be contrary to the requirements of Title 34[,] § 26 of the Code [a predecessor statute to § 30-2-3] even if appellant had not joined issue on the averments of cruelty in the complaint. ‘The jurisdiction of a court of equity to grant a divorce a vinculo matrimonii does not exist independent of the statute, and it is essential that jurisdictional facts affirmatively appear from the record.’ Meares v. Meares, 256 Ala. 596, 56 So.2d 661 [(1952)].
“The trial court having expressly prohibited testimony as to the grounds for divorce alleged in the complaint and having rendered a decree without testimony to such grounds, said decree of divorce was without statutory authority and thus without the jurisdiction of the court. The decree must be reversed.”

Johns, 49 Ala.App. at 320, 271 So.2d at 515-16. See also Helms v. Helms, 50 Ala.App. 453, 455, 280 So.2d 159, 161 (Civ.1973) (same).

“The only requirement for obtaining a divorce on the ground of incompatibility is proof of incompatibility.” Davis & McCurley, Alabama Divorce, Alimony & Child Custody Hornbook § 7-2 at 70. In this case, there is no indication in the record that, when the trial court entered the August 4, 2009, order divorcing the parties, it had heard any evidence regarding grounds for the divorce. Instead, the order was based solely on the parties’ stipulations. We note that the stipulations made to the trial court in Wright, supra, included a stipulation of fact that “ ‘a complete incompatibility of temperament exists between the parties.’ ” Id., 55 Ala.App. at 113, 313 So.2d at 541. Nonetheless, the stipulations were not adequate to overcome the prohibition of consensual divorce found in § 30-2-3. In this case, the parties’ stipulations stated only that the trial court could divorce the parties; they included no stipulation of fact as to grounds for a divorce and, in fact, contrary to allegations in the wife’s complaint, did not even state that the parties were incompatible or that there had been an irretrievable breakdown of the marriage.

Based on the record before us and the authorities cited, we have no choice but to conclude that the August 4, 2009, order divorcing the parties was based only on the parties’ stipulations and not on any evidence indicating that the parties were incompatible or that there had been an irretrievable breakdown of the marriage. Accordingly, the judgment of divorce “was without statutory authority and thus without the jurisdiction of the court.” Johns, 49 Ala.App. at 320, 271 So.2d at 516. This court “cannot supply jurisdictional requirements.” Helms, 50 Ala.App. at 455, 280 So.2d at 161. Therefore, under the circumstances of this case — in which the trial court ordered the parties to stipulate to the divorce and was not presented with any evidence as to grounds for a divorce— we are required to reverse the order of the trial court divorcing the parties.

The husband also raises a number of other issues regarding the award of child support and postminority support and the division of marital property. However, as our supreme court explained, “this Court having determined that there was no authority in the court to grant a divorce, there can be no award of alimony nor a property settlement due to dissolution of the marriage. Mason v. Mason, 276 Ala. 265, 160 So.2d 881 [(1964)].” Johns, 49 Ala.App. at 320, 271 So.2d at 516. It also follows that, at this point, there can be no award of child support nor a division of the marital property in this case based on the “consensual” dissolution of the parties’ marriage. See Mason v. Mason, 276 Ala. 265, 267-68, 160 So.2d 881, 883 (1964).

For the reasons set forth above,. the judgment of the trial court is reversed, and this cause is remanded to the trial court. On remand, the trial court is to conduct an evidentiary hearing only on the issue of the grounds for divorce and to enter a judgment encompassing all the issues in this matter.

APPLICATION OVERRULED; OPINION OF MARCH 22, 2013, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED WITH INSTRUCTIONS.

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

PITTMAN, J., recuses himself.

      . On January 28, 2011, this court dismissed the husband’s appeal from the March 5, 2010, order on the ground that there was a "lack of conclusiveness and certainty in the order as to the issue of child support, [and therefore] the order was not a final judgment and this court [did] not have jurisdiction over the husband’s appeal.” Dubose v. Dubose, 72 So.3d 1210, 1212 (Ala.Civ.App.2011) (citation omitted).

      . The record indicates that the husband was incarcerated in the federal prison system at the time.


author: JOINER, Judge,

text:
    David Dwayne GATES v. STATE of Alabama.
    CR-12-1390.
    Court of Criminal Appeals of Alabama.
    Nov. 7, 2013.

      Gregory S. Reese, for appellant.
    Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   Note from the reporter of decisions: On November 7, 2013, the Alabama Court of Criminal Appeals issued an order remanding this case to the circuit court for that court to “enter a written order specifically stating its reasons for revoking [David Dwayne] Gates’s parole and the evidence upon which it relied.” Judge Joiner dissented and issued a special writing, which Judge Welch joined.

JOINER, Judge,

dissenting.

I respectfully dissent from this Court’s order remanding this case to the circuit court for that court to “enter a written order specifically stating its reasons for revoking Gates’s probation and the evidence upon which it relied.” The record on appeal in this matter clearly demonstrates the circuit court’s reasons for revoking Gates’s probation. See, e.g., Ex parte State, 921 So.2d 450, 462 (Ala.2005) (holding that “ ‘oral findings, if recorded or transcribed, can satisfy the requirements of Morrissey [v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972),] when those findings create a record sufficiently complete to advise the parties and the reviewing court of the reasons for the revocation of supervised release and the evidence the decision maker relied upon.’ [United States v.] Copeland, 20 F.3d [412,] 414 [(11th Cir.1994) ].”).

The procedural history of this case is correctly set out in this Court’s order as follows:

“On August 13, 2012, Gates pleaded guilty to one count of third-degree burglary, a violation of § 13A-7-7, Ala.Code 1975, and one count of second-degree receiving stolen property, a violation of § 13A-8-18, Ala.Code 1975. The circuit court sentenced Gates to concurrent terms of 15 years in prison, split to time served followed by 5 years of probation. On March 13, 2013, Gates’s probation officer filed an ‘Officer’s Report on Delinquent Probationer’ alleging that Gates had violated his probation by acquiring a new conviction for third-degree burglary and by failing to report as directed by his probation officer. On April 17, 2013, the circuit court held a probation-revocation hearing, during which Gates admitted to violating the terms and conditions of his probation. At the conclusion of the hearing, the circuit court found that Gates was in violation of his probation, but allowed him to remain on probation provided that he report to the probation office following his release from custody and continue to report for bi-weekly drug testing. On April 24, 2013, Gates’s probation officer filed a second delinquency report alleging that Gates was in technical violation of his probation for failing to report. Following a probation-revocation hearing on May 20, 2013, the circuit court revoked Gates’s probation. This appeal followed.”

On appeal, Gates contends that the circuit court’s

“probation revocation order, coupled with its statement on the record, did not satisfy due process requirements and the requirements under Rule 27.6(f), Ala. R. of Crim. P., where the [circuit] court did not adequately and sufficiently state the evidence relied upon and the reasons for revoking Gates’[s] probation.”

(Gates’s brief, p. 10.) Specifically, Gates contends that the extent of the circuit court’s findings were that the circuit court,

“at the conclusion of the revocation hearing herein and arguments presented by both parties, stated, ‘Based on the testimony, I find the defendant has violated the terms and conditions of probation. I am fully revoking him for the remainder of the sentencing on CC-2008-2971.’ ”

(Gates’s brief, p. 12.) Gates then requests that this Court remand this case to the circuit court for that court to issue a written order stating its reasons for revoking Gates’s probation.

With regard to the sufficiency of a circuit court’s probation-revocation order, this Court has held:

“Rule 27.6(f), Ala. R.Crim. P., provides that, when revoking probation, ‘[t]he judge shall make a written statement or state for the record the evidence relied upon and the reasons for revoking probation.’ In McCoo v. State, 921 So.2d 450, 462 (Ala.2005), the Alabama Supreme Court relaxed the requirements of a written probation-revocation order and this court’s review of that order:
“ ‘[T]he requirement of Wyatt [v. State, 608 So.2d 762 (Ala.1992),] and its associated eases — that the trial court enter a written order stating its reasons for the revocation and the evidence relied upon regardless of the state of the record — is no longer applicable. Henceforth, the Court of Criminal Appeals may determine, upon a review of the record, whether the requisite Rule 27.6(f)[, Ala. R.Crim. P.,] statements are presented by that record. Thus, the Court of Criminal Appeals may examine the record and conclude that “oral findings, if recorded or transcribed, can satisfy the requirements of Morrissey [v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972),] when those findings create a record sufficiently complete to advise the parties and the reviewing court of the reasons for the revocation of supervised release and the evidence the decision maker relied upon.” [United States v.] Copeland, 20 F.3d [412,] 414 [(11th Cir.1994)].’
“In Ex parte Garlington, 998 So.2d 458 (Ala.2008), the Alabama Supreme Court reiterated the importance of its holding in McCoo, stating:
“Tn order to meet the requirements of Rule 27.6(f), as well as those of constitutional due process, it is “the duty of the trial court to take some affirmative action, either by a statement recorded in the transcript or by written order, to state its reasons for revoking probation, with appropriate reference to the evidence supporting those reasons.” McCoo [v. State], 921 So.2d [450,] 462 [(Ala.2005)] (emphasis added).’
“Garlington, 998 So.2d at 458-59 (Ala.2008).”

Williams v. State, [Ms. CR-11-1423, May 3, 2013] _ So.3d _, _ (Ala.Crim.App.2013). Thus, based on McCoo and Ex parte Garlington, 998 So.2d 458 (Ala.2008), it is unnecessary to remand a case to the circuit court where the circuit court’s reasons for revoking a defendant’s probation appear in a written order or appear in a statement recorded in a transcript.

Here, as stated above, on May 20, 2013, the circuit court conducted a probation-revocation hearing, at which the State presented the testimony of Reginald Tate— Gates’s probation officer. Tate testified that he had supervised Gates on probation since August 2012 and that he had advised Tate of the “rules and regulations of probation.” (R. 4.) Tate stated that he filed a delinquency report explaining that Gates had violated a condition of his probation; namely, “Condition Number 4, failure to report as directed by his probation officer.” (R. 5.) Tate explained that Gates violated “Condition Number 4” because

“on the 17th of last month we had a probation-revocation hearing actually for the same — one of the same technical charges, failure to report.
“Mr. Gates was instructed that once he was released from the Metro Jail to report to our office. He never reported.
“According to the record of the Metro Jail, he was released on the same day of the revocation, on the 17th.”

(R. 5-6.) Tate further explained that he waited one week to see if Gates would report before filing a second delinquency report; Gates, however, did not report.

After Tate testified, Gates testified in his own behalf explaining that, at the previous probation-revocation hearing, “the thing that was made perfectly clear to [him] about seeing Mr. Tate, was that [he] was to do so in two weeks.” (R. 8.) Gates then testified that it was his intent to report to Tate “[o]n the 14th day exactly.” (R. 9.)

Thus, at the hearing, Gates conceded that he failed to immediately report to Tate. Consequently, the only issue for the circuit court to resolve was not whether Gates failed to report — a fact Gates conceded, but whether Gates was ordered to report immediately or, instead, was ordered to report 14 days after he was released from custody.

This Court’s remand order concludes that “[t]he circuit court’s oral findings at the conclusion of Gates’s revocation hearing stated, T don’t want to hear any excuses. I am tired of that. I am fully revoking you. Good luck. (R. 13.)’ ” If that were all that the circuit court stated at the conclusion of the probation-revocation hearing, I would agree with this Court’s order remanding this case to the circuit court for further findings of fact. The transcript of Gates’s probation-revocation hearing, however, includes the following statement from the circuit court, which was made at the close of all the evidence:

“Mr. Gates, I handle a lot of matters like this. And, frankly, because of the volume of them, it is sometimes difficult for me to remember the probationers because there are so many of them.
“But I do remember you because it was a particularly interesting issue involved in your matter in that [the State] argued that because the burglary was now considered a crime of violence, it shouldn’t be considered as a technical violation and limit you to a 90-day amount of time that the Court could have made you serve because you failed to report the other time.
“But no good deed goes unpunished. I decided to give you another break. I recall telling you that it was obvious that drugs were somewhere involved in all of this, and that I wanted you to report immediately when you were released to Mr. Tate and that I also wanted you — I think I recall saying that I wanted you to report biweekly for a drug test.
“And just for clarification, you are not in charge of your probation, Mr. Tate is. And so if he thought that going to a rehab center or a halfway house was what you needed, he would have said so, once you reported to him.
“But probation is not a right, Mr, Gates; it’s a privilege. And, for whatever reason, your history indicates that you are either — for whatever reason, you just don’t want to comply with the rules of society and what the law tells you you have to, or what the Court instructs you. And I tried to give you a break. You didn’t take advantage of it.
“Even with your long history, I am— just like Mr. Tate, I am very, very surprised you didn’t — as soon as you got out you did not walk but you didn’t run to the probation office and sit over there.
“I don’t want to hear any excuses. I am tired of that. I am fully revoking you.”

(R. 11-13 (emphasis added).)

Although the circuit court’s order does not sufficiently state the circuit court’s reasons for revoking Gates’s probation, the circuit court’s statement on the record clearly and unequivocally demonstrates that the circuit court found that Gates was ordered to immediately report to Tate but failed to do so. The circuit court’s findings were based on Tate’s testimony and its own recollection of Gates’s previous probation-revocation hearing.

Although this Court’s order relies on McCoo and Garlington as a basis for remanding this case to the circuit court for that court to “enter a written order specifically stating its reasons for revoking Gates’s probation and the evidence upon which it relied,” in this case, McCoo and Garlington require no such action. In fact, this case falls squarely within the “relaxed ... requirements” of McCoo and Garlington because the circuit court stated on the record its reasons for revoking Gates’s probation — reasons that, if written, would satisfy the more stringent standards of Wyatt v. State, 608 So.2d 762 (Ala.1992).

To remand this case to the circuit court for that court to simply memorialize in a written order exactly what it stated at Gates’s probation-revocation hearing ignores the relaxed requirements of McCoo and Garlington and, instead, treats this case as if it were under the Wyatt standard. Remanding this case is unnecessary and wastes scarce judicial resources.

Moreover, as I stated in my dissent in Williams v. State, [Ms. CR-11-1423, May 3, 2013] _ So.3d _, _ (Ala.Crim.App.2013) (Joiner, J., dissenting):

“I conclude that a claim challenging the sufficiency of an order revoking probation is subject to review for harmless error, Rule 45, Ala. RApp. P., and, even if the circuit court’s order were insufficient here, I would hold that the error is harmless.
“A sufficiency-of-the-order claim is among four claims that are not bound by the general rules of preservation and thus may be raised for the first time on appeal. See Saffold v. State, 77 So.3d 178, 179 (Ala.Crim.App.2011) (noting that there are four probation-revocation claims that are not bound by the general rules of preservation: a claim that there was no adequate written order, a claim that a revocation hearing was not actually held, a claim that the circuit court did not advise a probation-revocation defendant of his or her right to request an attorney, and a claim that the circuit court erred in failing to appoint counsel). This Court has not held, however, that these four claims are not subject to harmless-error analysis; indeed, this Court has applied a harmless-error analysis to at least two of these four claims. See Dean v. State, 57 So.3d 169 (Ala.2010) (holding that the circuit court’s failure to appoint counsel at a probation-revocation hearing is subject to harmless-error analysis); Davis v. State, 855 So.2d 1142 (Ala.Crim.App.2008) (holding that a circuit court’s failure to advise a probation-revocation defendant of his right to counsel was subject to harmless-error analysis).
“In Hodges v. State, 912 So.2d 302 (Ala.Crim.App.2005), then Judge Shaw — joined by then Judge Wise — argued that an insufficient probation-revocation order is subject to harmless-error analysis. In Hodges, then Judge Shaw wrote:
“ ‘In this case, Earnest Hodges was charged with violating his probation by engaging in injurious or vicious habits and criminal activity, the basis of the charge being that Hodges committed the criminal offense of domestic violence for assaulting Joshua Gates, with whom Hodges and a woman identified as “Ms. Goodin” were living. Hodges was provided a revocation hearing in accordance with Rule 27.6(a), Ala. R.Crim. P., during which he was represented by counsel and testified on his own behalf; the evidence presented at the revocation hearing fully supports the trial court’s conclusion that Hodges engaged in criminal activity, specifically, that he committed domestic violence. Hodges does not challenge the revocation of his probation on appeal; his only argument concerns the adequacy of the written revocation order. Under these circumstances, it is clear to me that Hodges has not been prejudiced by the defect in the trial court’s written revocation order and that a remand is not necessary.’
912 So.2d at 306 (Shaw, J., dissenting).
“In this case, there is no argument that Williams was not afforded a hearing or that he was deprived of due process; likewise, the evidence presented at the hearing was sufficient. On appeal, Williams argues — at the request of this Court — only that the circuit court’s order was insufficient. Williams does not argue that the circuit court’s order impedes his ability to adequately appeal his case or that this Court’s review is hampered by the circuit court’s order. As then Judge Shaw concluded in Hodges, ‘[ujnder these circumstances, it is clear to me that [Williams] has not been prejudiced by the defect in the trial court’s written revocation order and that a remand is not necessary.’ 912 So.2d at 306.”

(Footnotes omitted.)

Here, like in Hodges and Williams, Gates was provided a revocation hearing in accordance with Rule 27.6(a), Ala. R.Crim. P., during which he was represented by counsel and testified on his own behalf; the evidence presented at the revocation hearing supports the circuit court’s conclusion that Gates failed to report to his probation officer — in fact, Gates conceded this fact at the hearing. Additionally, Gates does not challenge the revocation of his probation on appeal; instead, Gates’s only argument concerns the adequacy of the written revocation order. Thus, “[u]n-der these circumstances, it is clear to me that [Gates] has not been prejudiced by the defect in the trial court’s written revocation order and that a remand is not necessary.” Hodges, 912 So.2d at 306 (Shaw, J., dissenting).

Finally, I note that, since I authored my dissent in Williams, this is, at least, the fifth time I have dissented from a remand order instructing a circuit court to enter a written order stating its reasons for revoking a defendant’s probation under the more stringent Wyatt standard. See Cambron v. State (No. CR-12-0928, August 23, 2013); Dow v. State (No. CR-12-0625, August 20, 2013); Bailey v. State (No. CR-12-0112, May 16, 2013); and Henderson v. State (No. CR-12-0216, May 16, 2013). I am concerned that unless the State seeks certiorari review from this or a similar remand order, this Court’s practice of unnecessarily remanding cases will continue.

Although this Court’s remand order is not a final decision that would generally enable the State to seek certiorari review of this Court’s decision, in McCoo the Alabama Supreme Court concluded that the State may, in fact, seek certiorari review of this Court’s order remanding a case to the circuit court instructing that court to state its reasons in a written order for revoking a defendant’s probation because, it said, the issue is capable of repetition yet evading review. McCoo, 921 So.2d at 455-59.

Accordingly, I respectfully dissent.

WELCH, J., concurs.

      . Gates provides no citation for his quotation of the circuit court’s findings at the probation-revocation hearing. In fact, the transcript of the probation-revocation hearing does not include the quote contained in Gates's brief on appeal. Additionally, the circuit court case number referenced in Gates's quote does not match either of the circuit court case numbers for this case.
      Gates, in his ‘‘Summary of the Argument,” provides a different quotation of the circuit court’s findings. Specifically, Gates explains that the circuit court stated, " 'I don't want to hear any excuses. I am tired of that I am fully revoking you.’ ” (Gates's brief, p. 8.)

      . The circuit court’s written order revoking Gates’s probation found as follows: "Testimony was taken at a show cause hearing. The court finds [Gates] failed to report.” (C. 21.)


text:
    Rickey CRITTENDON v. STATE of Alabama.
    CR-12-1254.
    Court of Criminal Appeals of Alabama.
    Nov. 8, 2013.
    Rickey Crittendon, pro se.
    Luther Strange, atty. gen., and James B. Prude, asst. atty. gen., for appellee.
   Note from the reporter of decisions: On November 8, 2013, the Alabama Court of Criminal Appeals issued an order remanding this case to the circuit court for that court to clarify whether it had granted Rickey Crittendon’s in forma pauperis petition or whether Crittendon had paid the necessary filing fees and then, if Critten-don’s in forma pauperis petition had been granted or the filing fee paid, to determine whether the judge who presided over Critr tendon’s Rule 32, Ala. R.Crim. P., proceeding had represented Crittendon on a previous appeal. Judge Joiner dissented and issued a special writing, which Judge Burke joined.

JOINER, Judge,

dissenting.

I respectfully dissent from this Court’s order remanding this case to the Dale Circuit Court.

This case is before this Court on appeal from the circuit court’s summary dismissal of Rickey Crittendon’s Rule 32, Ala. R.Crim. P., petition for postconviction relief challenging his May 22, 1983, convictions for first-degree rape, first-degree sodomy, and first-degree burglary, and his resulting concurrent sentences of 60 years’ imprisonment. Without requiring a response from the State, the circuit court issued an order summarily dismissing Crittendon’s petition. Crittendon then filed a postjudgment motion entitled “Answer and Objection to the Court’s Order Entered on April 3, 2013, Dismissing Petitioner’s Rule 32, Petition For Post Conviction Relief,” in which, as this Court’s order explains, Crittendon argued:

“[T]hat the circuit court did not have jurisdiction to dismiss his petition because his application to proceed in forma pauperis was not granted....
“Crittendon [also] contended in his postjudgment motion, that the Honorable Kenneth W. Quattlebaum, the circuit judge who presided over his Rule 32 petition, should have recused from presiding over Crittendon’s Rule 32 petition because Judge Quattlebaum ‘represented the petitioner on appeal in this same case which resulted in a complaint being filed by the petitioner against [the circuit judge] with the Alabama Bar Association.’ (C. 33.)-”

(Emphasis in original.) The circuit court denied Crittendon’s postjudgment motion, and Crittendon appealed.

On appeal, Crittendon argues, among other things, that Judge Quattlebaum should have “recused himself from hearing this petition based on the fact that he represented [Crittendon] on appeal on this same case that resulted in a complaint being filed by [Crittendon] against Judge Quattlebaum with the Alabama Bar Association.” (Crittendon’s brief, pp. 5-6.)

This Court, in its order remanding this case to the circuit court, finds that “the record does not affirmatively show either that the circuit court granted Crittendon’s request to proceed in forma pauperis, or that Crittendon paid the required filing fee,” and remands this case for the circuit court to make specific, written findings of fact as to whether, before ruling on Crit-tendon’s Rule 32 petition, the circuit court granted Crittendon’s petition to proceed in forma pauperis or whether Crittendon paid the required filing fee. This Court further instructs the circuit court that, if it determines that it did, in fact, grant Critten-don’s petition to proceed in forma pauperis or Crittendon did pay the required filing fee, it must make additional specific, written findings of fact “clarifying whether [the circuit court judge] represented Crit-tendon on the appeal from the denial of an error coram nobis challenging his May 22, 1983, convictions for first-degree rape, first-degree robbery, and first-degree burglary in CC-83-151.”

This Court’s order, by first requiring Judge Quattlebaum to make specific, written findings of fact as to whether he granted Crittendon’s petition to proceed in for-ma pauperis or whether Crittendon paid the required filing fee, treats the question of whether Judge Quattlebaum is qualified to preside over this case as an issue secondary in importance to a question of subject-matter jurisdiction. This Court’s logic for doing so is grounded in the principle that “[a] circuit court does not obtain subject-matter jurisdiction of a Rule 32 petition until either a filing fee has been paid or a request to proceed in forma pauperis has been granted.” Hyde v. State, 894 So.2d 808, 809 (Ala.Crim.App.2004). Although that principle is correct, a circuit court may rule on a petition to proceed in forma pauperis only if it is qualified to do so. Thus, I believe this Court’s instructions to Judge Quattlebaum in this matter are erroneous.

Alabama law is clear: But for limited exceptions not applicable here, if a circuit judge is required to disqualify himself from a proceeding he can take no further action in that proceeding other than to enter an order recusing himself. See, e.g., Ex parte Jim Walter Homes. Inc., 776 So.2d 76, 80 (Ala.2000) (“Therefore, in order to avoid the appearance of impropriety, we hold that after a judge presiding in a particular case has been disqualified from hearing that case, under the Canons of Judicial Ethics, either voluntarily or by objection, he or she can take no further action in that ease, not even the action of reassigning the case under Rule 13, Ala. R. Jud. Admin.”).

Although this Court’s order treats a circuit judge’s qualification to preside over a case as an issue of secondary importance, the Alabama Supreme Court’s decision in Jim Walter Homes suggests that once facts are presented to the circuit judge calling into question his qualifications to preside over a case, the circuit judge can take no action in that case until he first resolves the qualification question. To read Jim Walter Homes any other way would allow a circuit judge who has been presented with facts warranting his disqualification to avoid making a determination as to his qualification and continue to make rulings in a case in which the circuit judge may not be qualified to act.

Canon 3.C.(1), Aabama Canons of Judicial Ethics, governs the disqualification of a judge from a proceeding. The Canons of Judicial Ethics “are not merely guidelines for proper judicial conduct. It is well-settled that the Canons of Judicial Ethics have the force and effect of law. Ala. Const. 1901, amend. 317. Wallace v. Wallace, 352 So.2d 1376, 1378 n. 1 (Ala.Civ.App.1977).” Matter of Sheffield, 465 So.2d 350, 355 (Ala.1984).

Canon 3.C.(1), states, in part:
“(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
“(b) He served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer in the matter, or the judge or such lawyer has been a material witness concerning it.”

(Emphasis added.) The Alabama Supreme Court has explained that it is a judge’s responsibility to remove himself from a case when he is disqualified and that “failure to disqualify himself in a particular case, when required to do so by the Canons, may subject the judge to an inquiry if a complaint is filed with the Judicial Inquiry Commission.” Ex parte Cotton, 638 So.2d 870, 872 (Ala.1994). See also Sheffield, supra (affirming the Court of the Judiciary’s sanction of two months’ suspension without pay when a judge failed to disqualify himself where his impartiality might be questioned).

Thus, to comply with both Jim Walter Homes and Canon 3.C.(1), Judge Quattleb-aum should first determine whether he did, in fact, represent Crittendon in a prior proceeding in this matter; if so, Judge Quattlebaum is required by law — under Canon 3.C.(l)(b) — to disqualify himself from the proceeding and can take no action in this case, including making findings of fact with regard to Crittendon’s petition to proceed in forma pauperis. See, e.g., Ex parte Jim Walter Homes, Inc., supra.

This Court’s order instructing Judge Quattlebaum to first answer the in forma pauperis question before addressing the question regarding his qualification demonstrates the absurd result that may be reached by treating a circuit judge’s qualification as an issue of secondary importance. Specifically, under this Court’s instructions on remand, Judge Quattlebaum may be required to find that he did, in fact, grant Crittendon’s petition to proceed in forma pauperis and immediately thereafter find that he previously represented Crittendon in this matter — a fact that would require Judge Quattlebaum to disqualify himself from the proceeding. This procedure, at best, is illogical and, at worst, requires Judge Quattlebaum to violate the Canons of Judicial Ethics by failing to disqualify himself from a proceeding when he is required to do so. Such action potentially subjects Judge Quattlebaum to a disciplinary proceeding by the Judicial Inquiry Commission.

Thus, to comply with both Jim Walter Homes and Canon 3.C.(1), I would remand this case for Judge Quattlebaum to first determine whether he should disqualify himself under Canon 3.C.(l)(b), and, if disqualification is required, Judge Quattleb-aum should enter an order disqualifying himself from the proceeding; at that point, this case would be reassigned to a different circuit judge for that judge to make specific, written findings of fact as to whether Crittendon’s petition to proceed in forma pauperis was granted or whether Crittendon paid the required filing fee.

Additionally, I am concerned that this Court’s remand order places Judge Quatt-lebaum in the untenable position of choosing either to follow this Court’s instructions on remand or to ignore this Court’s instructions and follow the Canons of Judicial Ethics and disqualify himself from this proceeding without first making any specific, written findings of fact.

Therefore, I encourage Judge Quattleb-aum to consider seeking extraordinary relief in the Alabama Supreme Court and/or to consider seeking an advisory opinion from the Judicial Inquiry Commission.

Even apart from which question Judge Quattlebaum should first answer on remand, I do not think a remand is required for additional findings as to either question. As to whether Judge Quattlebaum previously represented Crittendon “on the appeal from the denial of an error coram nobis challenging his May 22, 1983, convictions for first-degree rape, first-degree robbery, and first-degree burglary in CC-83-151,” the record before this Court in this appeal, and also in a previous appeal filed by Crittendon, demonstrates that Judge Quattlebaum previously represented Crittendon. As this Court’s remand order explains:

“Crittendon provided, as an exhibit to his postjudgment motion a copy of the title page from a brief written by a Kenneth W. Quattlebaum in Crittendon v. State, 4 Div. 519, a case appealed to this Court and affirmed on October 8, 1985. (This ease, 4 Div. 519, is listed in a table of unpublished memorandums in the Southern Reporter as Crittendon v. State, 482 So.2d 304 (Ala.Crim.App.1985) (table)). Crittendon reasserted this claim on appeal. An examination of this Court’s docket sheet in 4 Div. 519 reveals that two cases, 4 Div. 519 and 4 Div. 519-A, were consolidated. Both of these cases were appeals from the denial of a petition for a writ of error coram nobis in which Crittendon was represented by a Kenneth W. Quattlebaum.”

Additionally, Crittendon also attached to his postjudgment motion a case-action-summary sheet from case no. CC-01-89.60, which includes an entry dated February 4, 2003, signed by Judge Quattleb-aum. That entry states:

“Case called for Rule 32 hearing. Def moved for recusal of the undersigned on grounds that the undersigned had previously represented petitioner on appeal of a prior criminal conviction resulting in petitioner’s filing a grievance against the undersigned. The court finds that the motion should be granted and gives notice of recusal. The clerk shall submit this case to Judge McLauchlin for reassignment.”

(C. 41.) This same case-action-summary sheet appears in this Court’s record in Ex parte Crittenden (No. CR-04-1334, June 8, 2005), 926 So.2d 1093 (Ala.Crim.App.2005) (table), in which this Court denied a petition for a writ of mandamus filed by Crit-tendon in a Rule 32 proceeding in cases no. CC-01-89.60 and CC-01-89.61. (Critten-don’s Petition for a Writ of Mandamus, Exhibit A.) Additionally, in that appeal, Judge Quattlebaum and Judge P.B. McLauchlin, Jr., filed a joint response in which they acknowledge that Judge Quatt-lebaum had recused himself from the proceedings. (Response to Petition for a Writ of Mandamus, p. 2.)

As set out above, under Canon 3.C.(l)(b), a judge is required to disqualify himself in a proceeding if “[h]e served as a lawyer in the matter in controversy.” Although Judge Quattlebaum did not represent Crittendon in case no. CC-01-89, he determined, in that case, that recusal was required because he had represented Crit-tendon in a prior criminal proceeding.

In Sheffield, 465 So.2d at 357, the Alabama Supreme Court explained:

“As stated in Canon 1 of the Code of Judicial Ethics, ‘An independent and honorable judiciary is indispensable to justice in our society,’ and this requires avoiding all appearance of impropriety, even to the point of resolving all reasonable doubt in favor of recusal.”

(Emphasis in original.) Thus, here, because Judge Quattlebaum previously represented Crittendon in a criminal matter that resulted in Crittendon’s filing a complaint against Judge Quattlebaum with the Alabama State Bar, and Judge Quattleb-aum has previously recused himself from another case in which Crittendon was a defendant for that very same reason, to avoid “all appearance of impropriety” recu-sal is also required in this case, and Judge Quattlebaum erred when he denied Crit-tendon’s postjudgment motion.

As to whether Judge Quattlebaum granted Crittendon’s petition to proceed in forma pauperis, the record on appeal includes the circuit court’s order summarily dismissing Crittendon’s Rule 32 petition, in which the circuit court stated that “court costs are remitted.” (C. 30.) Those “court costs” would necessarily include the required filing fee. Thus, the record on appeal establishes that the circuit court waived the filing fee and that Crittendon was allowed to proceed in forma pauperis.

Accordingly, I dissent.

BURKE, J., concurs.

      . In recommending that Judge Quattlebaum seek an advisory opinion from the Judicial Inquiry Commission I do not intend to imply that an advisory opinion from the Judicial Inquiry Commission can overrule this Court’s instructions or absolve Judge Quattlebaum of his duty to follow the instructions of a superi- or appellate court; instead, I recommend seeking an advisory opinion from the Judicial Inquiry Commission in an attempt to provide Judge Quattlebaum a safe harbor before engaging in conduct that may violate the Canons of Judicial Ethics.

      . In CR-04-1334 Crittendon’s name is spelled "Crittenden.”

      . Although I believe that disqualification is required in this case, I recognize that Judge Quattlebuam's failure to disqualify himself from this proceeding was likely an oversight occasioned by the great length of time between his representation of Crittendon in 1985 and the filing of this Rule 32 petition in 2012, and the high volume of cases handled by Judge Quattlebaum in that period.