author: ISHEE, J., for the Court.

text:
    John Thelbert WHITLEY, Appellant, v. CITY OF BRANDON, Mississippi, Appellee.
    No. 2008-CA-00066-COA.
    Court of Appeals of Mississippi.
    May 5, 2009.
    Rehearing Denied Aug. 18, 2009.

      Harry Jones Rosenthal, attorney for appellant.
    Mark C. Baker, Jarrod Watkins Taylor, Brandon, attorneys for appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. On December 14, 2007, the Chancery Court of Rankin County entered a judgment finding John Whitley to be in violation of the City of Brandon’s (the City) ordinances and granting an injunction in favor of the City. The injunction required Whitley to remove all offending vehicles from his property and to refrain from storing any more such vehicles on his property. Aggrieved by the judgment, Whitley appeals. He asserts the following alleged points of error:

I. The chancellor erred in failing to recognize Whitley’s right to continue a nonconforming use of his property after the City’s annexation.
II. The chancellor erred in failing to recognize Whitley’s rights under the Right to Farm Statute, and the City’s nuisance ordinance is unconstitutionally vague.
III. The chancellor erred in refusing to allow Whitley to post a supersede-as bond staying enforcement of the judgment pending the outcome of the present appeal.

Finding no error, we affirm the chancellor’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. In May 2007, the City completed its annexation of certain property, which included Whitley’s property located along Highway 471. A number of inoperable motor vehicles, in various states of repair, were located on Whitley’s property. The City notified Whitley via certified letter that he was in violation of city zoning ordinances by parking inoperable and unlicensed motor vehicles on his residential property and not in his driveway. Whitley was given thirty days to comply with the ordinances, and when he failed to come into compliance, the City cited him for three violations. For his violations, the City of Brandon Municipal Court fined Whitley $1,500 plus costs of $288. He then appealed to the County Court of Rankin County.

1Í 3. The City later filed a complaint for injunctive relief in the county court, asking that the court order Whitley to remove the offending vehicles. Whitley objected to jurisdiction in county court, and the case was transferred to the Chancery Court of Rankin County. During the trial, the City offered testimony that the vehicles on Whitley’s property were, for the most part, inoperable junk vehicles. The evidence included a number of photographs depicting the condition of the vehicles. The problem, according to Robbie Powers, with the City’s code enforcement division, was that Whitley’s property was zoned residential, but Whitley maintained forty-six “inoperable, unlicensed, untagged vehicles.” Powers noted that several of the vehicles were dismantled or wrecked. He described them as “basically, abandoned in a pasture.” Additionally, the City offered testimony that storing the number of vehicles that Whitley did, which were in that condition, would decrease the property value in the surrounding properties. Further testimony indicated that the inoperable vehicles could lead to health issues, environmental issues, and vandalism on or around the property.

¶ 4. In a bench ruling on the matter, the chancellor noted that Whitley had been found criminally liable for violating the city ordinances and had been ordered to pay a fine. The chancellor then found that: (1) injunctive relief was appropriate because there was no other adequate remedy at law; (2) the City proved a nuisance based on the potential for irreparable harm or injury; and (3) Whitley was in violation of the city ordinances that, in part, prohibited the storage of inoperative and unlicensed motor vehicles on residential property. The chancellor ordered Whitley to remove all pickups and passenger vehicles on his property, along with the dump trucks and tractor trailers. Excepted from the injunction were a white Chevrolet pickup truck and any vehicle with a current inspection sticker and license tag. Also excepted from the injunction were a forklift, a cattle trailer, a farm tractor, and a front-end loader, provided that each of the vehicles had a current inspection sticker and tag. Whitley timely appealed from this judgment.

¶ 5. After Whitley filed his appeal from the chancellor’s judgment, the City filed a Motion for Contempt, Permission to Enter Property and Execute on Judgment and Related Relief. Whitley provided a cost estimate to remove the offending vehicles of $1,250, quoted by ACE Auto Sales. It would cost an additional $300 per month to store the vehicles. The chancellor found Whitley to be in contempt and ordered him to comply with the prior judgment by February 29, 2008. Having continuously failed to comply with orders to remove the offending vehicles, the chancellor authorized the Sheriff of Rankin County to incarcerate Whitley until he came into compliance with the judgment of December 14, 2007. Whitley was in jail for eight days, during which time the vehicles were removed from his property.

STANDARD OF REVIEW

¶ 6. This Court gives deference to the findings of a chancellor and will not disturb those findings unless they are manifestly wrong, unsupported by substantial evidence, or were the result of the application of an erroneous legal standard. Keener Props., L.L.C. v. Wilson, 912 So.2d 954, 956(¶ 3) (Miss.2005). However, this Court will review questions of law under a de novo standard. Id.

DISCUSSION

I. Right to Continue a Nonconforming Use

¶ 7. Whitley begins by arguing that he, his father, and his grandfather had used the property in question for farming for more than one hundred years prior to it being annexed by the City. He further argues that he used the various vehicles that he stored on the property as storage for his farming equipment and supplies.

¶ 8. Section 2004 of the City’s Code of Ordinances provides that a lawful nonconforming use of land may continue so long as the use remains lawful. Regarding a party’s right to continue a nonconforming use, the supreme court has stated the following:

The nature of the right to a non-conforming use is a property right. It has been held that the right to continue a non-conforming use, once established and not abandoned, runs with the land. It has been held by some courts that any ordinance which takes away that right in an unreasonable manner, or in a manner not grounded in the public welfare is invalid.

Barrett v. Hinds County, 545 So.2d 734, 737 (Miss.1989) (internal citations omitted).

¶ 9. Amanda Tolsted, the community development and planning director for the City, testified on behalf of the City. She said that Whitley’s property was zoned for low density residential use, and she said that Whitley’s use of the property was agricultural. According to Tolsted, the agricultural use was nonconforming, but she saw no indication that “the inoperable vehicles and the junked cars” were part of any agricultural use of the property. She admitted that some pieces of equipment on the property could be used for agricultural reasons but not the “junked inoperable vehicles.”

¶ 10. Whitley cites no authority indicating that he should be allowed to maintain a nuisance following rezoning or annexation as he would be allowed to continue a nonconforming use of his land. From the record, it is clear that the chancellor took great care in examining the vehicles, and he allowed Whitley to keep any vehicles that were usable in his farming operation. The judgment also makes it clear that the only vehicles that had to be removed were the inoperable and unlicensed vehicles.

¶ 11. Ultimately, we find no violation of Whitley’s right to continue his nonconforming use of the land. The inoperable and junked vehicles were a nuisance as defined in the City’s ordinance, and their removal was to benefit the public welfare. The nonconforming-use ordinance allowed for the continuation of a lawful nonconforming use; however, a nuisance is not a lawful nonconforming use. Therefore, we find no merit to this issue.

II. Whitley’s Rights Under the Right to Farm Statute and the City’s Nuisance Claim

¶ 12. Next, Whitley argues that the City’s nuisance ordinance was unconstitutionally vague and that it was, therefore, improper to enforce the ordinance against him. He also continues to make the argument that he should have been allowed to continue his nonconforming use — a farming operation.

¶ 13. We see nothing in the record to indicate that the City attempted to preclude Whitley from carrying on his farming operations. Any assertion by Whitley to the contrary is without merit. As previously noted, Tolsted testified that the farming qualified as a nonconforming use.

¶ 14. “A governmental enactment is impermissibly vague where it fails to provide persons of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits.” Mayor of Clinton v. Welch, 888 So.2d 416, 421(¶ 27) (Miss.2004) (citing Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000)). A statute may also be imper-missibly vague “if it authorizes or even encourages arbitrary and discriminatory enforcement.” Hill, 530 U.S. at 732, 120 S.Ct. 2480 (citing City of Chicago v. Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)).

¶ 15. In citing Whitley for maintaining a nuisance, the chancellor found that Whitley was in violation of section 34-21(1) of the City’s Code of Ordinances. Section 34-21 provides that a nuisance is an act, omission, condition, or thing that “[i]njures or endangers the comfort, repose, health or safety of others.... ” Section 34-22 of the City’s Code of Ordinances further provides a nonexclusive list of examples that constitute nuisances. Applicable to Whitley were the following nuisance examples of nuisances: (1) “Noxious weeds and other rank vegetation”; (2) “Accumulations of rubbish, trash, refuse, junk and other abandoned materials, metals, lumber or other things”; (3) “Any condition which provides harborage for rats, mice, snakes and other vermin”; and (4) “Any accumulation of stagnant water permitted or maintained on any lot or piece of ground.” Furthermore, the chancellor noted testimony that there had been several occasions of vandalism concerning Whitley’s vehicles. For example, vehicle doors had been removed, and their windows and windshields had been smashed.

II16. During cross-examination, Tolsted reiterated the nuisances for which Whitley had been cited. According to Tolsted:

The nuisance is the breeding ground for the vermin. It’s the pollutants that leak into the ground. It’s the — it poses a risk for anyone who comes onto that property because the — the glass and the engine parts — whether they’re invited or not invited on the property, it’s a risk for anyone, and that type of accumulation of junk, it attracts vandalism.

¶ 17. George Guest, who was admitted as an expert in engineering, testified that, with regard to keeping inoperable vehicles, there were concerns with “fuel, oil, antifreeze, sometimes there’s asbestos in the brakes, mercury in the light switches, ... hydraulic fluids, those type [of] items.” He was also concerned with any leaching into the soil of water that comes off these vehicles and any runoff from Whitley’s property that could affect the City’s water.

¶ 18. We see no merit to Whitley’s argument that the nuisance ordinance, specifically section 34-21(1), is unconstitutionally vague. We do not address subsections (2) or (3) because the chancellor did not address those and did not find that Whitley had violated them. The ordinance at issue provided a reasonable person an ordinary opportunity to understand the prohibited conduct. Furthermore, an illustrative list of potential nuisances is included in the City’s code at section 34-22. This issue is without merit.

III. Supersedeas Bond

¶ 19. Rule 62(c) of the Mississippi Rules of Civil Procedure provides the standard by which a party may request that a court stay an injunction pending an appeal. Rule 62(c) provides as follows:

When an interlocutory or final judgment has been rendered granting ... an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of an appeal from such judgment upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party. The power of the court to make such an order is not terminated by the taking of the appeal.

The comment to Rule 62(c) provides that an application for a stay under Rule 62(c) goes to the discretion of the court. M.R.C.P. 62(c) cmt.

¶ 20. In the present case, the chancellor ordered the City to pay the cost of having the offending vehicles removed, with Whitley to pay the cost of storing the vehicles. The chancellor also imposed the condition that if Whitley succeeded on appeal, the City would reimburse Whitley for the storage costs.

¶ 21. We find that the chancellor properly exercised his discretion in refusing to stay the injunction pending the appeal. At the same time, the chancellor granted Whitley an adequate remedy in case he prevailed on appeal. The chancellor had already determined that the vehicles on Whitley’s property posed a threat to the environment and to anyone who entered the property. We see no reason why the chancellor should have stayed the injunction in light of these findings, especially considering that the City would have been responsible for the expenses of moving and storing the vehicles if Whitley had succeeded on appeal. Accordingly, we find that this issue is without merit.

¶ 22. THE JUDGMENT OF THE CHANCERY COURT OF RANKIN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J, LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . It is unclear from the record how the vehicles were eventually removed from Whitley's property. Whitley claims in his appellate brief that the City removed the vehicles. However, the City denies that it retained ACE Auto Sales to remove the vehicles, and it further denies that anyone affiliated with the City entered upon Whitley's property to remove the vehicles.

      . The chancellor specifically refused to address whether Whitley was in violation of subsections 34 — 21 (2) — (3) because of what the chancellor saw as a subjective vagueness present in those subsections.


source: Caselaw Access Project

author: WOODALL, Justice. SMITH, Justice MURDOCK, Justice

license: Public Domain

text:
    Ex parte Jeff GREEN (In re Jeff Green v. State of Alabama).
    1070388.
    Supreme Court of Alabama.
    July 18, 2008.
    Rehearing Denied Sept. 19, 2008.

      George L. Beck, Jr., and Chad W. Bryan of Capell & Howard, P.C., Montgomery, for petitioner.
    Troy King, atty. gen., and Robin D. Scales, asst. atty. gen., for respondent.
   WOODALL, Justice.

Jeff Green sought certiorari review of a judgment of the Court of Criminal Appeals, which affirmed a judgment of the Houston Circuit Court denying Green’s petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P. Green’s Rule 32 petition sought relief from convictions for the unlawful manufacturing and possession of a controlled substance on the ground that his trial counsel was ineffective. We reverse and remand.

I. Factual Background

Green’s arrest and convictions arose out of a warrant executed for the search of a residence occupied by Green and three other individuals. The warrant was issued by a Houston County district judge upon the affidavit of Officer Thomas Flathman; Officer Flathman’s affidavit stated, in pertinent part:

“I have probable cause and do believe that located at - Hubbard Rd. Wicksburg Houston County Alabama, there is now being concealed certain property namely Methamphetamine and that the following facts tend to establish the facts thereof: I am Off. Thomas Flathman of the Dothan Police Department and I have received information from a confidential informant that Jeff Green is manufacturing and selling methamphetamine inside of the residence and in the shed beside of the residence. The confidential informant also stated that Paula Anderson resides at the residence. -Hubbard Road is the address Anderson used on September 21st 2002 when Off. Elkins arrested her for a felony narcotics violation. Both Green and Anderson have prior arrests for narcotics violations. Dothan Swat team snipers have observed continuous foot traffic between the residence and the shed. They have also smelled a strong acidic chemical odor coming from the property that is consistent with the manufacture of methamphetamine.
“Affiant shows that, based on the above and foregoing facts and information, affiant has probable cause to believe that the above described property is concealed upon the aforesaid premises and is subject to seizure and makes this affidavit so that a warrant may issue to search the said premises.”

The judge signed the warrant at his residence at 12:08 a.m.

Hours after the warrant was issued, Officer Flathman and at least three other police officers searched the shed, where they discovered and seized what has been described as a “methamphetamine lab.” A search of the residence yielded various smoking devices and a plastic container that tested positive for methamphetamine residue. Green was indicted for first-degree manufacturing of methamphetamine in violation of Ala.Code 1975, § 13A-12-218 (“the manufacturing charge”), and possession of methamphetamine in violation of Ala.Code 1975, § 13A-12-212 (“the possession charge”).

At Green’s trial, his counsel did not challenge the sufficiency of the search warrant or its supporting affidavit, nor did counsel move to suppress the evidence discovered as a result of the search. Green was convicted on both charges and was sentenced to 25 years’ imprisonment and 5 years’ imprisonment for the manufacturing charge and the possession charge, respectively, with the sentences to run consecutively. He appealed. The Court of Criminal Appeals affirmed the convictions and sentences, and this Court denied Green’s petition for certiorari review.

On September 23, 2005, Green filed in the circuit court a petition for postconviction relief under Rule 32, Ala. R.Crim. P. He sought to set aside his convictions on the ground that, among other things, he was denied the effective assistance of counsel guaranteed by the Alabama Constitution and the United States Constitution by his counsel’s failure to challenge the validity of the search warrant and the admissibility of the evidence seized during its execution.

The circuit court held an evidentiary hearing 'at which Officer Flathman testified. At that hearing, the following colloquy occurred:

“Q. [By Green’s counsel:] Other than what was on the four corners of [the search-warrant affidavit], did you present to the judge any other information? After you obviously apologized for the lateness of the hour, did you present any other material facts to him?
“A. [By Officer Flathman:] I don’t recall.”

(Emphasis added.)

The circuit court denied Green’s Rule 32 petition, and he appealed. The Court of Criminal Appeals affirmed the denial in an unpublished memorandum, Green v. State (No. CR-05-1597, September 21, 2007), 14 So.3d 196 (Ala.Crim.App.2007)(table), and Green filed this petition for certiorari review in this Court. We granted his petition to consider whether the decision of the Court of Criminal Appeals conflicts with its prior decisions in Lewis v. State, 589 So.2d 758 (Ala.Crim.App.1991), Nelms v. State, 568 So.2d 384 (Ala.Crim.App.1990), and Thomas v. State, 353 So.2d 54 (Ala.Crim.App.1977), regarding the sufficiency of an affidavit supporting a search warrant. We hold that it does.

II. Discussion

To obtain postconviction relief on a claim of ineffective assistance of counsel, a defendant must prove “(1) that counsel did not provide reasonably effective assistance and (2) that counsel’s deficient performance prejudiced the petitioner.” Ex parte Land, 775 So.2d 847, 850 (Ala.2000) (applying the rule set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Counsel’s “performance [is] measured against an ‘objective standard of reasonableness.’ ” Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005)(quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). “[A] determination of the reasonableness of counsel’s actions must be determined on a ‘case-by-case’ basis.” Emmett v. Kelly, 474 F.3d 154, 167 (4th Cir.2007). To prevail on an ineffective-assistance-of-counsel claim, both prongs of the Strickland test must be met. Altherr v. State, 911 So.2d 1105, 1107 (Ala.Crim.App.2004).

The Fourth Amendment to the United States Constitution provides, in pertinent part, that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” Thus, “[a] search warrant may only be issued upon a showing of probable cause that evidence or instrumen-talities of a crime or contraband will be found in the place to be searched.” United States v. Gettel, 474 F.3d 1081, 1086 (8th Cir.2007). Moreover, “ ‘[sufficient evidence must be stated in the affidavit to support a finding of probable cause for issuing the search warrant,’ and ‘[t]he affidavit must state specific facts or circumstances which support a finding of probable cause[;] otherwise the affidavit is faulty and the warrant may not issue.’ ” Ex parte Parker, 858 So.2d 941, 945 (Ala.2003) (quoting Alford v. State, 381 So.2d 203, 205 (Ala.Crim.App.1979)).

“A probable cause determination is made after considering the totality of the circumstances.” Gettel, 474 F.3d at 1086. To pass constitutional muster, “the facts must be sufficient to justify a conclusion that the property which is the object of the search is probably on the premises to be searched at the time the warrant is issued.” United States v. Greany, 929 F.2d 523, 524-25 (9th Cir.1991) (emphasis added). Thus, “[t]he police will ... encounter problems of ‘staleness’ of their information if they delay too long in seeking a search warrant.” United States v. Watson, 423 U.S. 411, 450 n. 14, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Green contends that the warrant authorizing the search of his residence was not based on probable cause, because, he argues, Officer Flathman’s affidavit, which provided the basis for the warrant, “failed to establish that the information being provided [by the affiant] was current rather than stale or remote.” Green’s brief, at 10. According to Green, Flathman’s affidavit differs in no material respect from the supporting affidavits deemed to be fatally deficient in Nelms, Lewis, and Thomas, supra. Although the Court of Criminal Appeals found the affidavit sufficient, we agree with Green.

All three cases cited by Green involved motions to suppress evidence of controlled substances discovered in the execution of search warrants supported by affidavits lacking information sufficient to determine whether the information provided to, and by, the affiant was current. In Thomas, heroin was found pursuant to a search warrant executed on March 14, 1973. Thomas, 353 So.2d at 55. One of the police officers who executed the warrant was the affiant, who had stated, in pertinent part:

“ ‘On February 23rd, 1973, a search warrant was served at 2624 Tempest Drive, Apartment H, residence of Marie Haley. A quantity of heroin was seized on this date. On the afternoon of March 6th, 1973, an undercover police officer purchased a quantity of heroin from Eric Rogers at 2624 Tempest Drive, Apartment H. On March 13th, 1973, I received information from a reliable informant who has given me information over a period of the last 30 days which has led to narcotic cases being made with trials pending. This informant gave me information that he had observed heroin being used and sold at 2624 Tempest Drive, Apartment H, Birmingham, Alabama.’ ”

353 So.2d at 56 (emphasis added). In holding that the defendant’s motion to suppress the heroin found during the search should have been granted, the Court of Criminal Appeals stated:

“The affidavit is deficient because it fails to show that the information received from the informant was fresh as opposed to being remote.... The affidavit stated that the informant ‘had ob-seived ’ heroin being used and sold from the premises described. The affidavit does not state the date or the time the informant allegedly observed the heroin on the premises ....
“The fact that heroin was previously seized on February 23, 1973, at 2624 Tempest Drive, Apartment H, did not establish probable cause to believe that heroin was on the premises three weeks later.
“Also, the fact that on March 6, 1973, an undercover police officer purchased a quantity of heroin from Eric Rogers on the premises did not establish probable cause to believe that a week later such narcotic would be still found thereon. Seven days is a considerable length of time in which to remove heroin from the premises or dispose of it in another fashion. Such makes for a stale warrant.”

353 So.2d at 56 (emphasis added).

The search warrant challenged in Leíais was based on an affidavit that stated, in pertinent part: “ ‘[W]ithin the last seventy-two hours, a reliable, confidential informant advised this affiant that said informant had been at the above described residence and observed a quantity of powder cocaine.’ ” Lewis, 589 So.2d at 759 (emphasis added). In reversing the trial court’s denial of the defendant’s motion to suppress evidence of a controlled substance found during the search, the Court of Criminal Appeals explained that the affidavit was constitutionally “deficient, because it fail[ed] to refer to the date when the informant allegedly observed cocaine at the [defendant’s] residence.” 589 So.2d at 759 (emphasis added).

Similarly, in Nelms, a controlled substance was found in executing a search warrant obtained on the basis of an affidavit that stated, in pertinent part:

“ ‘And that the facts tending to establish the foregoing grounds for issuance of a search warrant are as follows: That within the last seventy-two hours a confidential police informant, who has provided information to the affiant in the past that led to an arrest, stated to the affiant that they [sic] have seen Crack-Cocaine in the residence of Tommie Lee Nelms, alias, located at 625 Westview Drive, Auburn, Lee County, Alabama.’ ”

Nelms, 568 So.2d at 385 (emphasis added in Nelms). In reversing the trial court’s denial of the defendant’s motion to suppress evidence of the controlled substance, the Court of Criminal Appeals stated:

“The affidavit in this case is [constitutionally] deficient because it does not state when the drugs were seen by the informant at the [defendant’s] residence. The words ‘within the last seventy-two hours’ refer to when the informant told this information to the affiant, not to when the informant observed the narcotics in the [defendant’s] residence. There is absolutely no reference to the date or time when the narcotics were observed by the informant. Thus, the affidavit was defective and was insufficient to support the issuance of the search warrant in this case.”

568 So.2d at 386 (emphasis added).

The dispute in this case centers on the following three statements in Flathman’s affidavit: (1) “I have received information from a confidential informant that Jeff Green is manufacturing and selling methamphetamine inside of the residence and in the shed beside of the residence”; (2) “Dothan Swat team snipers have observed continuous foot traffic between the residence and the shed”; and (3) “[t]hey have also smelled a strong acidic chemical odor coming from the property that is consistent with the manufacture of methamphetamine.” To be sure, the first statement contains a verb tense that is ostensibly the present tense, i.e., “is manufacturing and selling.” (Emphasis added.) However, any present-tense aspect of this phrase is qualified by, and subject to, the introductory clause, “I have received information” (emphasis added), which indicates an action in the past.

The Court of Criminal Appeals has explained in regal'd to the phrase “had observed” that such statements in affidavits evidencing past actions are ineffective. This is so, because the allegedly illegal activity “ ‘could have been any time in the past.’ ” Thomas, 353 So.2d at 56 (quoting Walker v. State, 49 Ala.App. 741, 743, 275 So.2d 724, 725-26 (Ala.Crim.App.1973)). When “ ‘[t]he informer [does] not tell the officer-affiant the date or time he allegedly observed the [activity] on the premises,’ ” then “ ‘[t]here is nothing in the affidavit which hints of time except the use of the past tense in connection with the informant’s ... report to the affiant.’ ” 353 So.2d at 56 (quoting Walker, 49 Ala.App. at 743, 275 So.2d at 726)(emphasis added).

Similarly, nothing in Officer Flathman’s affidavit reveals when the tip from the informant ivas received or when the alleged activity was observed. The most that can be gained from that portion of the affidavit is that — at some indefinite time in the past — an anonymous individual allegedly learned of a methamphetamine operation involving Green at the address indicated on the search warrant. Because Officer Flathman’s affidavit contained no chronological reference in which to place the informant’s alleged observation of the methamphetamine operation, it afforded no basis on which to determine whether “the object of the search [was] probably on the premises to be searched at the time the warrant [was] issued.” Greany, 929 F.2d at 525.

The information supplied to Officer Flathman by the “Dothan SWAT team snipers” is defective for the same reasons. The affidavit provides no information as to when the SWAT-team snipers were deployed. It relates only what the snipers allegedly “have ... observed” and “have ... smelled” at some indefinite time in the past. Lacking a relevant time frame, the statements of the snipers provided no basis on which to determine whether a methamphetamine operation was ongoing at the residence at the time the warrant was issued. For these reasons, the affidavit fails to state facts or circumstances that would support a finding of probable cause within the framework of Thomas, Nelms, and Lewis.

Even if an affidavit is facially defective for the reasons just discussed, its deficiency may be cured by information an affiant supplied to the issuing authority in addition to the assertions in the affidavit. However, no such circumstance is presented in this case, because Officer Flathman testified at the hearing on Green’s Rule 32 petition that he “[did]n’t recall” telling the district judge who issued the warrant anything “[ojther than what was on the four corners of the [search-warrant affidavit].” In that respect, also, this case is on point with Nelms and Leivis.

Both of those cases involved, as does this case, allegations that the supporting affidavits lacked a chronological context by which to assess the timeliness of the search warrant. Nelms, 568 So.2d at 386; Lewis, 589 So.2d at 759. In both cases, the State attempted to cure the deficiency of the affidavits with testimony of the affi-ants regarding facts they had orally communicated to the judges who issued the warrants. Nelms, 568 So.2d at 386-87, Lewis, 589 So.2d at 759. In both cases, as in this case, the affiants testified that they could not recall what they had told the issuing judge as to when the informant had observed the illegal activity. In both cases, the Court of Criminal Appeals held, contrary to the holding in its unpublished memorandum in this case, that such oral testimony is insufficient to cure the deficiency of a supporting affidavit.

Finally, the State argues that “[e]ven if the affidavit was [insufficient to establish probable cause], the evidence was admissible under the ‘good-faith exception’ to the exclusionary rule.” The State’s brief, at 22. Similar arguments based on materially indistinguishable facts were made by the State and rejected in Nelms and Lewis.

The Court of Criminal Appeals in Nelms, in particular, stated:

“[T]he only possible way to justify the admission of the evidence seized pursuant to the search warrant in this case would be as a ‘good faith’ exception to the exclusionary rule as enunciated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In Leon, ‘the Supreme Court held that evidence obtained pursuant to a facially-valid search warrant, later found to be invalid, is admissible if the executing officers acted in good faith and in objectively reasonable reliance on the warrant.’ United States v. Hove, 848 F.2d 137, 139 (9th Cir.1988). However, the Leon Court specifically noted four circumstances when it cannot be asserted that the officer is acting in ‘good faith’ because ‘the officer will have no reasonable grounds for believing that the warrant was properly issued.’ Leon, 468 U.S. at 923, 104 S.Ct. at 3420. One of these circumstances is when an officer relies ‘on a warrant based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” ’ In its discussion of this circumstance, the Supreme Court stated that ‘ “Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusion of others.” ’ Leon, 468 U.S. at 915, 104 S.Ct. at 3416 (quoting Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
“In Herrington v. State, 287 Ark. 228, 697 S.W.2d 899 (1985), the Arkansas Supreme Court was faced with a situation similar to the one at bar. In that case, the court held that the affidavit, which was the basis for the issuance of a search warrant, did not contain sufficient information to support a probable cause determination because it contained no reference to when the informant had seen marijuana growing in the defendant’s home. Thus, the court held that the search in that case could not be justified under the ‘good faith’ exception enunciated in Leon.
“The affidavit in this case was ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,’ since there was no reference at all in the affidavit as to when the informant saw the narcotics at the appellant’s residence. An argument could be made that the ‘good faith’ exception should be applicable in this instance because the affiant knew the time the informant saw the narcotics in the appellant’s residence at the time he prepared the affidavit and at the time he executed the search warrant.
‘Leon does not extend, however, to allow the consideration of facts known only to an officer and not presented to a magistrate. The Leon test for good faith reliance is clearly an objective one and it is based solely on facts presented to the magistrate. Leon, 468 U.S. at 923, 104 S.Ct. at 3421. An obviously deficient affidavit cannot be cured by an officer’s later testimony on his subjective intentions or knowledge. “Reviewing courts will not defer to a warrant based on an affidavit that does not ‘provide the magistrate with a substantial basis for determining the existence of probable cause.’ ” Leon, 468 U.S. at 915, 104 S.Ct. at 3416 (quoting Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2332, 76 L.Ed2d 527 (1983)).
‘Leon creates an exception to the exclusionary rule when officers have acted in reasonable reliance on the ruling of a judge or magistrate. The point is that officers who present a colorable showing of probable cause to a judicial officer ought to be able to rely on that officer’s ruling in executing the warrant. [Citation omitted.] When the officers have not presented a colorable showing, and the warrant and affidavit on their face preclude reasonable reliance, the reasoning of Leon does not apply. To permit the total deficiency of the warrant and affidavit to be remedied by subsequent testimony concerning the subjective knowledge of the officer who sought the warrant would, we believe, unduly erode the protections of the fourth amendment.’
“Hove, 848 F.2d at 140.
“Here, the affidavit was deficient on its face and, although the affiant testified that he and the judge who issued the warrant talked about the time when the informant had observed the drugs at the [defendant’s] house, he stated that he could not remember what he told the judge with regard to this matter. Thus, we cannot say that the affiant made a colorable showing of probable cause to the judge. Therefore, Leon does not apply here and the [defendant’s] motion to suppress should have been granted.”

Nelms, 568 So.2d at 387-89 (emphasis added).

The ajoplieation of and rationale for the good-faith exception are particularly inappropriate where, as here, the officer is executing a search, umrmnt that depends on his own affidavit. It is “ ‘disingenuous, after having gone to [a district judge] with the paltry showing seen here, to suggest, as the [State] suggests, that at bottom it was the [district judge] who made the error and the search and seizure are insulated because the officer’s reliance on that error was objectively reasonable.’ ” Ball v. State, 868 So.2d 474, 475 (Ala.Crim.App.2003) (Cobb, J., dissenting) (quoting United States v. Zimmerman, 277 F.3d 426, 438 (3d Cir.2002)).

The State does not discuss — or even acknowledge — Thomas, Nelms, or Lewis. Instead, it relies on Harrelson v. State, 897 So.2d 1237 (Ala.Crim.App.2004). The State’s reliance on Hawelson, however, is misplaced. In Harrelson, the search-warrant affidavit stated, in pertinent part, that “ ‘[o]n August 9, ¡2002, information was received from a confidential informant indicating that Mr. Harrelson was responsible for [certain described] tii’e thefts,’ ” and that Harrelson “ ‘had “tens of thousands of dollars worth” of [said stolen] property at his residence,’ ” 897 So.2d at 1238 (emphasis added). The warrant was issued that same day. 897 So.2d at 1239.

The Harrelson affidavit is distinguishable in that, unlike the affidavit in this case, the date of the informant’s information was manifest. In other words, it was fairly inferable from the face of the affidavit that the stolen property was at Harrel-son’s residence on August 9, 2002 — the benchmark date of the informant’s tip. Indeed, the Court of Criminal Appeals so concluded:

“In this case, the affidavit provides that the informant said that Harrelson, at the time of the execution of the affidavit, had stolen goods stored in a building on his property, that is, the presence of the stolen goods was ongoing at the time of the execution of the affidavit.”

Harrelson, 897 So.2d at 1239-40. Officer Flathman’s affidavit, on the other hand, contains no comparable benchmark.

In short, the affidavit is facially defective within the framework of Thomas, Nelms, and Lewis, and, moreover, is “so lacking indicia of probable cause” that it does not satisfy the good-faith exception discussed in Nelms and Lewis. The affi-ant’s testimony reveals nothing about when any of the relevant activities took place, thus “rendering] official belief in [the existence of probable cause] entirely unreasonable.” Nelms, 568 So.2d at 388.

III. Conclusion

Given the glaringly defective affidavit, reasonably effective counsel would have challenged the search warrant and the admission of evidence obtained as a result of its execution. In failing to do so, Green’s trial counsel did not provide reasonably effective assistance. For these reasons, the judgment of the Court of Criminal Appeals is reversed, and the cause is remanded to that court for the entry of an appropriate order.

REVERSED AND REMANDED.

SEE, LYONS, STUART, and PARKER, JJ., concur.

SMITH, J., concurs specially.

BOLIN and MURDOCK, JJ., dissent.

COBB, C.J., recuses herself.

SMITH, Justice

(concurring specially).

I concur with the main opinion. I write only to note that at the time a search warrant is challenged, the affiant, or additional witnesses produced by the affiant, may not recall the details of critical supplemental testimony that was provided to the judge or magistrate when the warrant was issued. Thus, in order to preserve this supplemental testimony, Rule 3.9(a), Ala. R.Crim. P., provides that “[s]uch additional sworn examination shall be recorded verbatim by a court reporter, by recording equipment, or by other means .... ”

MURDOCK, Justice

(dissenting).

For the reasons discussed below, I respectfully dissent.

I find the cases of Lewis v. State, 589 So.2d 758 (Ala.Crim.App.1991), Nelms v. State, 568 So.2d 384 (Ala.Crim.App.1990), and Thomas v. State, 353 So.2d 54 (Ala.Crim.App.1977), to be distinguishable from the present case. The problematic, past-tense verb usage in each of these cases was part of the informant’s statement and was in reference to the occurrence at some unknown time in the past of the illegal activity itself or the informant’s observation of that activity. In contrast, in the present case the “past tense” reference is found only in the affiant’s statement that “I have received” certain information from the informant. If this makes the affidavit deficient, then very few affidavits will be able to pass constitutional muster. Obviously, any time an affidavit describes information from an informant, it is of necessity information the affiant has received before signing the affidavit.

The real question is what is the information the affiant has received from the informant. According to the affidavit in this case, it is that, at the time the affidavit is signed, the defendant “is manufacturing and selling methamphetamine.”

The main opinion disagrees with this understanding of the affidavit. It asserts that the present tense of the phrase “is manufacturing and selling” is qualified by the reference to prior activity in the clause “I have received information.” I believe the converse is true. Moreover, the issuing court reasonably could have understood the converse to be true. By stating that “I have received information from a confidential informant that Jeff Green is manufacturing and selling methamphet-amines inside of the residence and in the [adjacent] shed,” the affidavit impliedly and necessarily states that the affiant has received information from the informant that speaks to the current state of affairs. Compare Harrelson v. State, 897 So.2d 1237, 1239 (Ala.Crim.App.2004) (finding that affiant’s statement that “[i]nformation was also received from the informant indicating that the suspect stored some of the stolen property in an open-faced barn structure located approximately 1/4 mile east of the suspect’s residence,” speaks to the current state of affairs at the time of the execution of the affidavit).

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court stated:

“ ‘[T]he term “probable cause,” according to its usual acceptation, means less than evidence which would justify condemnation .... It imports a seizure made under circumstances which warrant suspicion.’ [Locke v. United States, 7 Crunch 339, 348 (1813)]....
“We also have recognized that affidavits ‘are normally drafted by nonlawyers in the midst and haste of a criminal investigation....’ [United States v.] Ventresca, 380 U.S. 102, 108 [ (1965) ].... The rigorous inquiry into the Spinelli [v. United States, 393 U.S. 410 (1969),] prongs and the complex superstructure of evidentiary and analytical rules that some have seen implicit in our Spinelli decision, cannot be reconciled with the fact that many warrants are — quite properly ... —issued on the basis of nontechnical, common-sense judgments of laymen applying a standard less demanding than those used in more formal legal proceedings....
“Similarly, we have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s ‘determination of probable cause should be paid great deference by reviewing courts.’ Spinelli, supra, 393 U.S., at 419.”

462 U.S. at 235-36, 103 S.Ct. 2317.

“The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.”

Gates, 462 U.S. at 238-39, 103 S.Ct. 2317 (emphasis added). As I read it, and considering it in its entirety, the affidavit at issue here gave the issuing court “substantial basis for ... concluding that probable cause existed.” As an appellate court, this Court should defer to an issuing court’s “common-sense” understanding of the wording of the affidavit presented to it.

Alternatively, even if the affidavit in this case did not provide a reasonable basis for the issuing court to conclude that it had probable cause to believe that the manufacture and sale of methamphetamine was ongoing at the time the affidavit was executed, I agree with the Court of Criminal Appeals that the evidence obtained pursuant to the resulting warrant should have been admissible under the “good-faith exception” to the exclusionary rale. Specifically, I cannot conclude that the affidavit is “so lacking [in] indicia of probable cause as to render official belief in its existence entirely unreasonable.” Straughn v. State, 876 So.2d 492, 500 (Ala.Crim.App.2003)(citing United States v. Leon, 468 U.S. 897, 921, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)).

Finally, I note that Lewis v. State, Nelms v. State, and Thomas v. State all were appeals of convictions in which the question of the adequacy of the affidavit and resulting warrant was directly at issue. In the present case, we are not confronted with the direct question whether the affidavit and warrant pass constitutional muster; rather, the question is whether counsel’s representation of the defendant was reasonable. Effective representation does not entitle a defendant to error-free representation. Saffold v. State, 570 So.2d 727, 731 (Ala.Crim.App.1990). “In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (emphasis added). At a bare minimum, I cannot conclude, in light of what are at least substantial questions as discussed above, that counsel’s representation of Green fell below constitutional standards because counsel failed to object to the validity of the warrant in the present case. See generally Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (“Judicial scrutiny of counsel’s performance must be highly deferential .... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”).

BOLIN, J., concurs.

      . The second prong is not at issue in this case; the State does not dispute that, if counsel did not provide reasonably effective assistance, Green was prejudiced.

      . See Lewis, 589 So.2d at 759 (finding deficient an affidavit that stated merely that the informant advised the affiant that " 'said informant had been at the above-described residence and observed a quantity of powder cocaine' " (emphasis added)); Nelms, 568 So.2d at 385 (rejecting an affidavit that stated merely that the informant " 'stated to the affiant that they [sic] have seen Crack-Cocaine in the residence of' " the defendant (some emphasis omitted)); Thomas, 353 So.2d at 56 (finding that the affidavit "fail[ed] to show that the information received from the informant was fresh as opposed to being remote” where the affidavit slated merely that the informant " 'had obseived heroin being used and sold' ” at the defendant's address (emphasis added)).

      . The Harrelson court further explained:
      "In this case, the affidavit provides that the informant said that Harrelson, at the time of the execution of the affidavit, had stolen goods stored in a building on his property, that is, the presence of the stolen goods was ongoing at the time of the execution of the affidavit. As opposed to absolutely no reference to the date or time, as was the problem in Nelms and Lewis, the affidavit in this case contained not only a general time frame, but also it provided that at the moment of tire execution of the affidavit Harrelson was in possession of the stolen goods.”

        897 So.2d at 1239-40. The Harrelson court also stated:
      “Finally, the plain meaning of the statement in the affidavit that reads, 'The informant stated that Mr. Harrelson had air-conditioning units, ladders, tools, and other property at his residence that were thought to be stolen from Auburn University,’ indicates that, as of the date of the affidavit, the stolen goods were at that point in time on Harrelson's property.”
      897 So.2d at 1242 (emphasis added).

      . For the reasons discussed above, I also am not persuaded that counsel's conduct necessarily resulted in any prejudice to the defen-clant so as to meet the second prong of the Strickland test.


author: PER CURIAM. SHAW, Judge,

text:
    Jeff GREEN v. STATE of Alabama.
    CR-05-1597.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 2008.
    George L. Beck, Jr., and Chad W. Bryan, Montgomery, for appellant.
    Troy King, atty. gen., and Robin Denise Scales, asst. atty. gen., for appellee.
   PER CURIAM.

On authority of Ex parte Green, 15 So.3d 489 (Ala.2008), the judgment of the circuit court is reversed and this cause remanded for proceedings consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED.

BASCHAB, P.J., and WISE, J., concur. SHAW, J., concurs specially, with opinion, which McMILLAN and WELCH, JJ., join.

SHAW, Judge,

concurring specially.

I agree to reverse the circuit court’s judgment and to remand this cause for further proceedings on the authority of Ex parte (Green, 15 So.3d 489 (Ala.2008), because this Court is “bound by the decisions of the Alabama Supreme Court and ... cannot overrule the decisions of that Court.” L.J.K. v. State, 942 So.2d 854, 873 (Ala.Crim.App.2005) (opinion on application for rehearing), citing § 12-3-16, Ala. Code 1975. However, I question whether the Supreme Court’s opinion in this case has the effect, albeit unintended, of shifting the burden of proof in a Rule 32, Ala.R.Crim.P., proceeding from the petitioner to the State in cases dealing with trial counsel’s effectiveness with regard to the validity of a search warrant.

As the Supreme Court noted in its opinion, a facially defective affidavit submitted in support of a search warrant may be cured by additional information supplied to the issuing magistrate beyond that contained in the affidavit. Relying on cases in which this Court held that the State had failed to meet its burden of proof in a suppression hearing because the affiants had stated that they did not recall whether they had presented additional information to the issuing magistrates beyond that contained in the affidavit, see Lewis v. State, 589 So.2d 758 (Ala.Crim.App.1991), and Nelms v. State, 568 So.2d 384 (Ala.Crim.App.1990), the Supreme Court concluded that “no such circumstance is presented in this case” because the affiant in this case stated at the Rule 32 hearing that he “[did]n’t recall” whether he had presented any additional information to the issuing-magistrate beyond that contained in the affidavit and “such oral testimony is insufficient to cure the deficiency of a supporting affidavit.”

However, the burden of proof in a Rule 32 proceeding is on the petitioner, not the State. See Rule 32.3, Ala.R.Crim.P. (“The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.”). The State is not required in a Rule 32 proceeding to present evidence indicating that a search was valid in order to rebut a claim of ineffective assistance of counsel; rather, the burden is solely on the petitioner to present evidence indicating that a search was not valid in order to establish that counsel’s performance was deficient. Thus, in this case the State was not required to present evidence at the Rule 32 hearing indicating that the deficiency in the affidavit was cured; rather, the burden was on the petitioner to present evidence indicating that the deficiency in the affidavit was not cured. Just as a statement by an affiant that “I don’t recall” is insufficient, when the burden is on the State in a suppression hearing, to establish that additional information beyond that contained in the affidavit was presented to the issuing magistrate in securing a search warrant, I continue to believe, as this Court held in its unpublished memorandum affirming this case, that the statement “I don’t recall” is equally insufficient, when the burden is on the petitioner in a Rule 32 proceeding, to establish that additional information beyond that contained in the affidavit was not presented to the issuing magistrate in securing a search warrant.

McMILLAN and WELCH, JJ„ concur.


author: STUART, Justice. MURDOCK, Justice WOODALL, Justice

text:
    Mary MEDLOCK, Cassandra Cooper, Johnnie Baker, and the estate of Keith Cooper v. SAFEWAY INSURANCE COMPANY OF ALABAMA.
    1071303.
    Supreme Court of Alabama.
    Jan. 30, 2009.

      Scott M. Speagle of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellants.
    Robert C. Ward, Jr., and Bethany L. Bolger of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee.
   STUART, Justice.

Safeway Insurance Company of Alabama sued policy owners Mary Medlock and Cassandra Cooper, seeking a judgment declaring that it did not owe underin-sured-motorist benefits to Johnnie Baker and the estate of Keith Cooper. The trial court entered a judgment for Safeway; Medlock, Cooper, Keith Cooper’s estate, and Baker appeal. We reverse and remand.

Facts and Procedural History

On October 11, 2006, Safeway issued an automobile insurance policy to Medlock. On October 12, 2006, Safeway issued a renewal policy for automobile insurance to Cooper. The declaration in both policies provided:

“By acceptance of this policy you agree:
“4. that the coverage afforded by the policy shall not apply to any loss or damage arising from any accident which occurs while any automobile is being driven, operated, manipulated, maintained, serviced, or used in any other manner by an unlisted driver, on the Application, Declarations, and/or on the Endorsement, under the age of twenty-five (25), who resides in the same household as the named insured, and/or is a regular or frequent operator of any automobile insured under this policy. This exclusion shall apply whether or not the named insured is occupying any automobile at the time said driver is using it in any manner whatsoever.”

With regard to uninsured-motorist coverage, both policies provided:

“Part C — Uninsured Motorist Coverage Insuring Agreement
“We will pay damages which a Covered Person, as defined in this Part, is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:
“1. Sustained by a Covered Person; and
“2. Caused by an accident, which in no way involves the operation of any automobile by a Non-Covered Person, as defined in this Part;
“The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.
“Any judgment for damages arising out of a suit brought without prior notice to us, and without our written consent is not binding on a claim being made by any Covered Person, as defined in this Part, against us. A default judgment rendered against the owner or operator of an uninsured motor vehicle shall not be binding nor determinative of any issue arising in a claim being made by any Covered Person, as defined in this Part.
“No recovery can be made under this Part until the Covered Person has received by way of settlement or judgment, the full limits of coverage under any applicable bodily injury liability policy or bond.
“ ‘Covered Person’ as used in this Part means:
“1. You, and a Family Member() other than a Non-Covered Person
“2. Any other person occupying Your Covered Auto (provided it is not operated by a Non-Covered Person)
“ ‘Non-Covered Person’ as used in this Part means an operator of any automobile who:
“1. Is a Family Member or is otherwise a member of your household under the age of twenty and is not listed on the Application, Declarations and/or added by Endorsement.
“2. Is listed as an ‘Excluded Driver(s)’ on the Application, Declarations and/or added by Endorsement.
“3. Is a regular and frequent user of Your Covered Auto and not listed on the Application, Declarations and/or by Endorsement.
“ ‘Uninsured Motor Vehicle’ means a land motor vehicle or trailer of any type:
“1. To which no bodily injury liability bond or policy is in effect at the time of the accident.
“2. To which a bodily injury liability bond or policy is in effect at the time of the accident but the sum of the limits of liability coverage under all policies is less than the damages which the injured person is legally entitled to recover from the owner or operator of the uninsured motor vehicle.
“3. Which is a hit and run vehicle whose operator or owner cannot be identified and which hits or which causes an accident resulting in ‘bodily injury’ without hitting. If there is no physical contact with the hit and run vehicle the fact of the accident must be corroborated by competent evidence other than testimony of any person making a claim under this or any other similar insurance as a result of such accident.
“However, ‘Uninsured Motor Vehicle’ does not include any vehicle or equipment:
“1. Identified as ‘Your Covered Auto’ on the Application, Declarations, and/or by Endorsement.
“2. Owned by or furnished or available for the regular use of you or any Family Member.
“3. Operated by Non-Covered Person.
“4. Operated on rails or crawler treads.
“5. Which is a farm type tractor or equipment designed mainly for use off public roads except while on public roads.
“6. While located for use as a residence or premises.
“EXCLUSIONS
“A. We do not provide Uninsured Motorist Coverage for bodily injury sustained by any person:
, “1. During or as a result of operation ' of any automobile by a Non-Covered Person.
“2. If that person or the legal representative settles the bodily injury claim without notice to us and our consent.
“3. While occupying Your Covered Auto when it is, being used to carry persons or property for a fee. This exclusion does not apply to a share-the-expense car pool.
“4. Using a vehicle without a reasonable belief that the person is entitled to do so.
“5. Using a vehicle in the commission of a crime, other than a traffic violation.
“6. Who is an unlicensed driver or whose driving privileges have been terminated and/or suspended.
“B. This coverage shall not apply directly or indirectly to benefit an insurer or self-insurer under any of the following or similar laws:
“1. workers’ compensation law; or
“2. disability benefit law.”

On October 25, 2006, Keith Cooper, Cassandra Cooper’s brother, was driving the automobile described in Medlock’s Safeway policy. Johnnie Baker was a passenger in the vehicle. The automobile Keith Cooper was driving was involved in an accident with an automobile driven by Sean Cardell Dees. Keith Cooper died as a result of the accident, and Baker sustained injuries.

Keith Cooper’s estate and Baker were paid the limits of Dees’s insurance policy. Keith Cooper’s estate then made a claim for underinsured-motorist coverage on both Medlock’s and Cooper’s Safeway policies, and Baker made a claim for underin-sured-motorist coverage on Medlock’s Safeway policy.

On March 2, 2007, after the claims were made, Safeway filed an action, naming as defendants Medlock and Cooper and seeking a declaration that it did not owe under-insured-motorist benefits to either Keith Cooper’s estate or Baker. Safeway averred that Keith Cooper was not a licensed driver at the time of the accident, that Medlock was not a passenger in the vehicle at the time of the accident, that Keith Cooper did not have Medlock’s permission or authorization to drive her vehicle at the time of the accident, that Keith Cooper is Cooper’s brother, and that Keith Cooper was not listed as an insured driver on the application or declarations of, and was not added by endorsement to, either policy. Safeway further averred that because its policies excluded from coverage an unlicensed operator of the insured vehicle; a driver “using the vehicle without a reasonable belief that the person is entitled to do so”; a family member who is not listed on the application or declarations of the policy and/or was not added by endorsement; or a regular and frequent user of the insured vehicle who is not listed on the application or declarations of the policy and/or was not added by endorsement, it did not owe any benefits as a result of the October 25, 2006, accident. Safeway attached to its complaint copies of the policies issued to Medlock and Cooper. Safeway also attached documents establishing that Keith Cooper was not listed as a driver in the application or declarations of either policy and that he had not been added by endorsement.

Medlock and Cooper filed an answer and counterclaim. In their answer, Medlock and Cooper admitted that Keith Cooper was driving Medlock’s vehicle, that Med-lock was not a passenger in the vehicle at the time of the accident, and that Keith Cooper was Cooper’s brother. Medlock and Cooper denied that Keith Cooper was an unlicensed driver at the time of the accident, denied Safeway’s allegation that Medlock had not given Keith Cooper permission to drive the vehicle, and denied Safeway’s allegation that Keith Cooper is not listed as a driver on either Medlock’s or Cooper’s application for her policy or on the endorsement. Medlock and Cooper also asserted an affirmative defense that the “action is improper as the real parties in interest have not been made parties to the suit.”

In their counterclaim, they alleged that Keith Gooper and Baker were covered persons under both Medlock’s and Cooper’s policies and that Safeway had improperly denied the estate’s and Baker’s claims for coverage. They asked the court to declare that Safeway is obligated to pay underinsured-motorist benefits to Keith Cooper’s estate and to Baker as provided in their policies. Additionally, they alleged claims of breach of contract and bad-faith refusal to pay a claim. In its answer, Safeway admitted that Medlock’s policy provided underinsured coverage for the automobile Keith Cooper was .driving at the time of the accident but denied that it had breached the contract of insurance or had engaged in bad-faith refusal to pay an insurance claim.

On June 20, 2007, Keith Cooper’s estate and Baker moved to intervene in Safeway’s action. In their motion, they argued that Medlock and Cooper, the defendants in the declaratory-judgment action filed by Safeway, are not real parties in interest in the action because they had not made a claim for uninsured-motorist benefits from Safeway. In their motion, they state:

“10. Neither Mary Phillips Medlock nor Cassandra Cooper has made a claim for uninsured motorist benefits from Safeway.
“11. As provided by Alabama Rules of Civil Procedure 24, the Estate of Keith Cooper and Johnnie Baker ‘claim[ ] an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of [this] action’ will impede and impair them ‘ability to protect that interest’ because it is these applicants, not the named defendants, who have made a claim for the benefits at issue.
“12. The injuries, harm, and denial by the insurance company to pay the entitled benefits are suffered by the applicants.”

Keith Cooper’s estate and Baker attached to them motion a complaint against Safeway, asking the trial court to declare that Safeway is obligated to pay the underin-sured-motorist benefits and asserting a claim of bad faith.

After conducting a hearing on “all pending motions,” the trial court issued an order stating:

“This cause is before the Court on [Safeway’s] complaint for declaratory judgment and the motion to intervene filed by Mary Medlock, as Administra-trix of the Estate of Keith Cooper, and Johnnie Baker. After having considered the pleadings and evidentiary submissions filed in this case, along with oral arguments presented by both sides, this Court is of the opinion that judgment is due to be GRANTED in favor of [Safeway] and that the motion to intervene is due to be DENIED.”

Medlock, Cooper, Keith Cooper’s estate, and Baker appeal.

Standard of Review

To determine the appropriate standard of review, we must first consider the nature of the trial court’s judgment for Safeway. The trial court had before it a complaint seeking a declaratory judgment, an answer and counterclaim filed by Med-lock and Cooper, an answer to the counterclaim filed by Safeway, and a motion to intervene and a complaint against Safeway filed by Keith Cooper’s estate and Baker. It does not appear that the trial court had before it a motion for a judgment on the pleadings or a motion for a summary judgment. Thus, no evidentiary matter appears in the record. Consequently, we will treat the trial court’s judgment as having been entered pursuant to the provisions of Rule 12(c), Ala. R. Civ. P., governing judgments on the pleadings in a case. See Deaton, Inc. v. Monroe, 762 So.2d 840, 841-12 (Ala.2000).

“Rule 12(c), Ala. R. Civ. P., provides:
“ ‘After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.’
“When a motion for judgment on the pleadings is made by a party, ‘the trial court reviews the pleadings filed in the case and, if the pleadings show that no genuine issue of material fact is presented, the trial court will enter a judgment for the party entitled to a judgment according to the law.’ B.K.W. Enters., Inc. v. Tractor & Equip. Co., 603 So.2d 989, 991 (Ala.1992). See also Deaton, Inc. v. Monroe, 762 So.2d 840 (Ala.2000). A judgment on the pleadings is subject to a de novo review. Harden v. Ritter; 710 So.2d 1254, 1255 (Ala.Civ.App.1997). A court reviewing a judgment on the pleadings accepts the facts stated in the complaint as true and views them in the light most favorable to the nonmoving party. Id. at 1255-56. If matters outside the pleadings are presented to and considered by the trial court, then the motion for a judgment on the pleadings must be treated as a motion for a summary judgment. See Rule 12(c), Ala. R. Civ. P. Otherwise, in deciding a motion for a judgment on the pleadings, the trial court is bound by the pleadings. See Stockman v. Echlin, Inc., 604 So.2d 393, 394 (Ala.1992).”

Universal Underwriters Ins. Co. v. Thompson, 776 So.2d 81, 82-83 (Ala.2000).

Here, the trial court’s ruling rested on the complaint and answer. Therefore, this Court conducts a de novo review, looking only to the pleadings to determine whether the trial court erred in entering a judgment for Safeway.

Discussion

Medlock, Cooper, Keith Cooper’s estate, and Baker (hereinafter referred to collectively as “the appellants”) contend that the trial court erred in entering a judgment on the pleadings because, they say, genuine issues of material fact are presented as to whether Safeway is obligated to pay underinsured-motorist benefits to Keith Cooper’s estate and Baker. According to the comjdaint, Safeway alleged that it did not owe coverage to Keith Cooper’s estate and Baker because, it argued, Keith Cooper was not a “covered person” under either of the policies. According to Safeway, Keith Cooper was a “non-covered person” because he was a family member — Cassandra Cooper’s brother — who was not listed as a driver on the application or declarations of the policies and/or had not been added by endorsement to the policies; he was using the vehicle at the time of the accident without a reasonable belief that he was entitled to do so; he was an unlicensed driver or had had his driving privileges suspended; and he was a regular and frequent user of Medlock’s vehicle who was not listed on the application or declai'ations and/or had not been added by endorsement.

In their answer to Safeway’s complaint, Medlock and Cooper denied that Keith Cooper was an unlicensed driver; denied that he did not have permission or authorization from Medlock to drive or operate her automobile on the day of the accident; denied that he was a family member or otherwise a member of a policyholder’s household under the age of 25 and not listed on the application or declarations and/or not added by endorsement; and denied that he was a regular and frequent user of Medlock’s vehicle who was not listed on the application or declarations or added by endorsement.

A de novo review of the pleadings indicates that a genuine issue of material fact exists as to whether Safeway is obligated to pay underinsured-motorist benefits to Keith Cooper’s estate and to Baker. The underinsured-motorist policies clearly provide that Safeway will not pay underin-sured-motorist benefits to a noncovered person or if the circumstances surrounding the accident are among those listed in the exclusions. Nothing before us indicates as a matter of law that Keith Cooper was a noncovered person or that the circumstances of the accident involved facts that were within the listed exclusions. For this Court to affirm a judgment on the pleadings, the pleadings needed to establish that Keith Cooper was a family member of the policyholder, as that term is defined by the policy, or otherwise a member of the household under the age of 25 who was not listed as a driver on the application or declarations and/or who was not added by endorsement for the policies; that he was a regular and frequent user of Medlock’s vehicle who was not listed on the application or declarations and/or who was not added by endorsement to the policies; that he was using Medlock’s vehicle without a reasonable belief that he was entitled to do so; or that he was an unlicensed driver or had had his driving privileges suspended. They do not. Consequently, Safeway has not sustained its burden of establishing that Keith Cooper was a “non-covered person,” as defined in the policies, or that the circumstances of the accident involved one of the exclusions in the policies. Therefore, Safeway is not entitled to a judgment on the pleadings, and the judgment of the trial court is reversed.

The appellants also contend that the trial court erred in entering a judgment for Safeway because, they say, Safeway did not sue the proper parties. They urge that because this Court in Peachtree Casualty Insurance Co. v. Sharpton, 768 So.2d 368, 371 (Ala.2000) (quoting St. Paul Insurance Co. v. Henson, 479 So.2d 1253, 1253 (Ala.Civ.App.1985)), stated that “ ‘[underjinsured motorist coverage inures to a person, not a vehicle,’ ” a judgment in a case involving an underinsured-motorist claim cannot be entered without suing the parties making the underinsured-motorist claim — here Keith Cooper’s estate and Baker.

An insurance policy is a contract. Pate v. Rollison Logging Equip., Inc., 628 So.2d 337 (Ala.1993). The contracts at issue were between Safeway and Medlock and Safeway and Cooper, respectively. Safeway sought a declaratory judgment based on the terms of the contract, the undisputed facts, and applicable law. Therefore, Medlock and Cooper were proper parties for Safeway to sue in seeking a declaration of how the contract was to be interpreted and enforced. Moreover, Medlock and Cooper have asserted counterclaims adverse to the contentions made by Safeway in its complaint for a declaratory judgment. Clearly there is a dispute between Safeway and the two policyholders.

Finally, the appellants contend that the trial court exceeded the scope of its discretion by denying the motion to intervene filed by Keith Cooper’s estate and Baker. Keith 'Cooper’s estate and Baker moved to intervene pursuant to Rule 24(a)(2), Ala. R. Civ. P., which provides:

“(a) Intervention of Right. Upon timely application, anyone shall be permitted to intervene in an action: .... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”

Keith Cooper’s estate and Baker reasoned that because they, and not Medlock and Cooper, were entitled to receive any un-derinsured-motorist benefits, Medlock and Cooper could not stand in the place of, defend, or prosecute their interests; therefore, intervention by Keith Cooper’s estate and Baker was required.

“ ‘ “The decision to grant or to deny a motion to intervene is within the sound discretion of the trial court, and this Court will not disturb that ruling absent an abuse of discretion. In its exercise of discretion, the trial court must determine whether the potential intervenor has demonstrated: (1) that its motion is timely; (2) that it has a sufficient interest relating to the property or transaction; (3) that its ability to protect its interest may, as a practical matter, be impaired or impeded; and (4) that its interest is not adequately represented.” ’
“Richards v. Izzi, 819 So.2d 25, 33 (Ala.2001) (quoting City of Dora v. Beavers, 692 So.2d 808, 810 (Ala.1997), citing in turn Valley Forge Ins. Co. v. Alexander, 640 So.2d 925, 927 (Ala.1994), and Rule 24(a), Ala. R. Civ. P.). ‘A “practical” rather than a “technical” approach measures the doctrine of intervention as a matter of right pursuant to Rule 24(a)(2)[, Ala. R. Civ. P.].’ Long v. City of Hoover, 844 So.2d 1273, 1281 (Ala.Civ.App.2002).”

Ex parte Caremark RX, Inc., 956 So.2d 1117, 1127-28 (Ala.2006).

A review of the pleadings indicates that the trial court exceeded the scope of its discretion in denying the motion to intervene. Here, Keith Cooper’s estate and Baker timely moved to intervene. The motion was filed within four months of the filing of the complaint and before the trial court entered a judgment. Additionally, the pleadings establish that Keith Cooper’s estate and Baker, as the potential beneficiaries of the underinsured-motorist policies, have a sufficient interest in the property, see Peachtree Cas. Ins. Co., supra, and, consequently, as a practical matter that the ability of Keith Cooper’s estate and Baker to protect their interest will be impaired or impeded, if they are not allowed to intervene. Although Safeway argues that Medlock and Cooper adequately represent the interests of Keith Cooper’s estate and Baker, we disagree. If a judgment is entered for Safeway and Keith Cooper’s estate and Baker are not parties to the action, then Keith Cooper’s estate and Baker are foreclosed by the doctrines of res judicata and/or collateral estoppel from pm-suing their interests. Lastly, we conclude that Safeway, in light of our holding that the trial court erred in entering a judgment for Safeway, will not suffer prejudice by allowing Keith Cooper’s estate and Baker to intervene. See Ex parte Caremark RX, supra (considering the prejudicial effect on the parties in the existing litigation when reviewing a motion to intervene). Therefore, the trial court exceeded the scope of its discretion in denying the motion to intervene filed by Keith Cooper’s estate and Baker.

Conclusion

The trial court’s judgment is reversed, and this case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

BOLIN and PARKER, JJ., concur.

COBB, C.J., and MURDOCK, J., concur in the result.

LYONS, WOODALL, and SMITH, JJ., dissent.

MURDOCK, Justice

(concurring in the result).

I concur in the result. I write in reference to the assertion in the main opinion that “[i]f a judgment is entered for Safeway and Keith Cooper’s estate and [Johnnie] Baker are not parties to the action, then Keith Cooper’s estate and Baker [will be] foreclosed by the doctrines of res judi-cata and/or collateral estoppel from pursuing their interests.” 15 So.3d at 510. Although I question that assertion, I agree that, in light of Rule 24(a), Ala. R. Civ. P., the trial court erred in denying the motion to intervene filed by the estate of Keith Cooper and Baker.

COBB, C.J., concurs.

WOODALL, Justice

(dissenting).

I would vacate the judgment, dismiss the appeal, and dismiss the case. Consequently, I respectfully dissent.

“ ‘There must be a bona fide justiciable controversy in order to grant declaratory relief. If no justiciable controversy exists when the suit is commenced, then the court lacks jurisdiction.’ ” Ex parte Bridges, 925 So.2d 189, 191 (Ala.2005)(quoting Durham v. Community Bank of Marshall County, 584 So.2d 834, 835 (Ala.1991)). In the absence of subject-matter jurisdiction, the trial court can do nothing other than dismiss the action, and any other action taken by it is void. Cadle Co. v. Shabani, 4 So.3d 460, 463 (Ala.2008). Of course, it is well established that a void judgment will not support an appeal.

‘[Underjinsured motorist coverage inures to a person St. Paul Ins. Co. v. Henson, 479 So.2d 1253 (Ala.Civ.App.1985) (citing State Farm Mut. Auto. Ins. Co. v. Jackson, 462 So.2d 346, 353 (Ala.1984)).” Peachtree Cas. Ins. Co. v. Sharpton, 768 So.2d 368, 371 (Ala.2000). However, when Safeway filed its declaratory-judgment complaint, it named as defendants only its insureds and did not name as defendants the only claimants for underinsured-motorist benefits — the estate of Keith Cooper and Johnnie Baker. Safeway did not allege the existence of any controversy between it and either named insured and could not have alleged that either named insured had any legal interest in the recovery of underinsured-motorist benefits by the nonparties. In the absence of parties with adverse legal interests, there was no justiciable controversy. See Bridges, 925 So.2d at 192.

LYONS and SMITH, JJ., concur.

      . The policies define “Family Member” as "a person related to you by blood, marriage or adoption and who regularly lives in your household. This includes a ward or foster child, and includes any child of yours who is only temporarily away from the household.”

      . The hearing was not transcribed, and the record before us includes only one pending motion — the motion to intervene filed by Keith Cooper's estate and Baker.

      . Although the trial court’s sua sponte judgment on the pleadings is unusual, our Court of Civil Appeals has confronted a similar situation. In Lary v. Flasch Business Consulting, 909 So.2d 194, 197 n. 3 (Ala.Civ.App.2005), the Court of Civil Appeals noted:
      “Although Rule 12(c), Ala. R. Civ. P., envisions the filing of a motion for judgment on the pleadings by one of the parties to an action, caselaw and commentary addressing the analogous Rule 12(c), Fed. R.Civ.P., indicate[] that a trial court may properly enter a judgment on the pleadings sua sponte in a particular case ‘if it is clear that one side is assured of victory as a matter of law and there is no material factual dispute.’ 5C Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1367 & n. 25 (3d ed.2004) (citing Flora v. Home Fed. Sav. & Loan Ass'n, 685 F.2d 209 (7th Cir.1982), Vickery v. Jones, 878 F.Supp. 1179 (S.D.Ill.1995), aff'd, 100 F.3d 1334 (7th Cir.1996), and Bajenski v. Chivatero, 818 F.Supp. 1083 (N.D.Ohio 1993)).’’

      . Even though the trial court considered the policy, the matter remains a judgment on the pleadings because the policy was made part of the complaint and Medlock and Cooper did not dispute its authenticity. Wilson v. First Union Nat’l Bank of Georgia, 716 So.2d 722, 726 (Ala.Civ.App.1998) (holding that the trial court's consideration of documents attached to the complaint, the identity and authenticity of which were not in dispute, did not require conversion of a motion to dismiss into a motion for a summary judgment).

      . Baker also moved to intervene pursuant to Rule 24(b)(2), Ala. R. Civ. P., which provides that anyone may be permitted to intervene "when an applicant's claim or defense and the main action have a question of law or fact in common.”