text:
    Weaver HAWKINS III v. LaSALLE BANK, NATIONAL ASSOCIATION.
    2070787.
    Court of Civil Appeals of Alabama.
    May 29, 2009.

      Kenneth J. Lay and James Opp Smith of Legal Services Alabama, Inc., Birmingham, for appellant.
    Greggory M. Deitsch and Sandra L. Vi-nik of Sirote & Permutt, P.C., Birmingham, for appellee.
   MOORE, Judge.

Weaver Hawkins III appeals from the Jefferson Circuit Court’s summary judgment in favor of LaSalle Bank, National Association (“LaSalle”), in LaSalle’s ejectment action against Hawkins. We reverse and remand.

Facts

On January 26, 1995, Hawkins’s father, Weaver Hawkins, Jr., executed a mortgage (“the mortgage”) in favor of NationsCredit Financial Services Corporation (“Nation-sCredit”) on three separate parcels of property located in different parts of Birmingham. Hawkins’s father died testate on July 16, 1995, leaving all of his property, including the three parcels, to Hawkins. According to Hawkins, he published notice of his father’s death to his father’s creditors by publication.

Subsequently, after receiving two letters addressed to Weaver Hawkins, Jr., from a servicing agent for NationsCredit, advising that NationsCredit intended to begin foreclosure proceedings on the mortgage due to nonpayment, Hawkins filed a Chapter 13 bankruptcy proceeding. The three parcels of property were included as property of the bankruptcy estate. The bankruptcy court entered an order staying any foreclosure proceedings so long as Hawkins made payments on the mortgage under the bankruptcy plan. By confirmation order dated September 22, 2004, the bankruptcy court ordered Hawkins to pay the mortgage; Hawkins further stated that the bankruptcy court’s order required that NationsCredit provide him notice of any default before proceeding to foreclosure. According to Hawkins, he lived on one of the three mortgaged parcels (“the subject property”) at that time.

In a letter dated November 3, 2005, addressed to Weaver Hawkins, Jr., Na-tionsCredit, through another servicing agent, advised that it would conduct a foreclosure sale on the three parcels on December 9, 2005, after running notice of the sale in the Alabama Messenger, a newspaper of general circulation in Jefferson County, beginning on November 5, 2005. According to Hawkins, although he did not receive any further letters regarding the foreclosure, he had learned that another notice of the foreclosure had been run in the Alabama Messenger on December 17, 2005, which stated that the foreclosure sale would occur on January 9, 2006.

According to Adam Shields, LaSalle’s document-control officer, the mortgage was “transferred and assigned to LaSalle” before the foreclosure sale. Hawkins submitted evidence indicating that the two parcels on which he did not reside had been purchased at tax sales conducted before the foreclosure sale by Birmingham Health Care and Willie Dunn, respectively. Hawkins also presented evidence indicating that, before the foreclosure sale took place, he and Birmingham Health Care had requested that LaSalle sell the properties by individual parcels. The foreclosure sale took place on January 9, 2006; the three parcels were sold en masse, and the foreclosure deed submitted to the court lists LaSalle as the purchaser of the three parcels for a total price of $87,049.14.

Scott J. Humphrey, LaSalle’s attorney, stated in his affidavit that he had sent a letter to Hawkins on January 10, 2006, advising him that LaSalle had purchased the three parcels at the foreclosure sale and requesting that Hawkins surrender possession of the subject property to La-Salle within 10 days. Humphrey further stated that Hawkins had failed or refused to vacate the subject property. According to an affidavit submitted by M. Katherine Blackwell, the foreclosure supervisor for LaSalle’s attorney, Hawkins had unlawfully remained in possession of the subject property despite LaSalle’s demands that Hawkins vacate the premises.

Procedural History

On January 31, 2006, LaSalle filed a complaint in the Jefferson Circuit Court against Hawkins seeking to recover possession of the subject property. Hawkins filed an answer to the complaint on October 18, 2006. On October 31, 2006, La-Salle filed a motion for a summary judgment; LaSalle attached the affidavits of Blackwell and Humphrey to that motion. In November 2006, Hawkins filed a response to LaSalle’s summary-judgment motion, in which he asserted that the foreclosure had been improper. The trial court granted that motion on April 26, 2007; however, upon timely motions filed by Hawkins, the trial court subsequently stayed the execution of the summary judgment and then set aside the summary judgment on June 15, 2007.

After completing additional discovery, LaSalle again moved for a summary judgment on October 3, 2007. On October 22, 2007, Hawkins filed a response in opposition to LaSalle’s summary-judgment motion, along with a motion to set aside the foreclosure sale. Hawkins argued that LaSalle had failed to issue notice of the actual date of the foreclosure sale to the proper parties and that LaSalle had failed to publish notice of the actual date of the foreclosure sale three times as required by § 35-10-8, Ala.Code 1975. Hawkins further argued that the foreclosure sale was improper because the three parcels of property were not sold separately and because LaSalle had foreclosed against Weaver Hawkins, Jr., rather than his estate.

LaSalle filed a supplement to its summary-judgment motion and a response to Hawkins’s opposition on October 31, 2007. LaSalle argued, among other things, that Hawkins’s attempt to void the foreclosure sale was barred by the applicable statute of limitations. On November 2, 2007, Hawkins filed an amended answer, which included an affirmative defense that LaSalle was “without legal title to the [subject] property due to defective notice, defective sale, and wrongful foreclosure,” and he requested an order setting aside the foreclosure sale. Also on November 2, 2007, Hawkins filed a supplemental response in opposition to LaSalle’s supplemental summary-judgment motion, in which he asserted that he had raised the issue that the foreclosure was improper in his response to LaSalle’s first summary-judgment motion in November 2006 and that, therefore, he was not time-barred from raising that issue as a defense to LaSalle’s ejectment action.

On January 18, 2008, the trial court entered an order granting LaSalle’s summary-judgment motion. As a preliminary matter, the trial court found that Hawkins was not time-barred from raising the invalidity of the foreclosure sale as a defense. In its order, the trial court concentrated on Hawkins’s argument that the foreclosure sale was defective because the subject property had been sold with two other parcels en masse instead of by itself. The trial court stated, in pertinent part:

“It is undisputed that the foreclosure sale involved separate parcels that are dedicated to separate and distinct uses, and that the parcels should have been offered on an individual basis first. The failure to do so is sufficient grounds for voiding a sale, but the mortgagor must first show that the trust imposed on the mortgagee has been abused and that he has been injured by the sale. Garris [v. Federal Land Bank of Jackson ], 584 So.2d [791] at 794 [ (Ala.1991) ]. The ‘injury1 that must be shown is not clearly defined in Garris, and further examination of earlier decisions cited by the Garris decision does little to clarify the nature of the requirement. It appears, nevertheless, from most of these cases that a mortgagor challenging such a sale must prove monetary loss resulting from failure to sell his property in individual parcels.
“[Hawkins] contends that because the property was sold en masse, he was unable to purchase the one piece of property on which he currently resides. As support for this claim, [Hawkins] cites J.H. Morris, Inc. v. Indian Hills, Inc., [282 Ala. 443,] 212 So.2d 831, 834 [ (1968) ], which allows a sale to be voided if the defendant is able to show (1) that the trust incident to the exercise of the power has been abused; and (2) that he has suffered detriment in the undue sacrifice of his property. Alternatively, he must show that his right of redemption has been unduly hampered. The Alabama Supreme Court here relied on its earlier decision of Kelly v. Carmichael, [217 Ala. 534,] 117 So. 67 (Ala.1928)[,] to shed some light on the rationale for the rule requiring property to be first offered for sale in parcels:
“1... sale in parcels or lots opens a field to a greater number of bidders, is conducive to a better price, tends to prevent odious speculation upon the distress of the debtor, and enables him to redeem some of the property without being compelled to redeem it all.’

" J.H. Morris, Inc. v. Indian Hills, Inc., [282 Ala. at 455,] 212 So.2d at 844.

“Again, the Supreme Court seemed to focus primarily on pecuniary considerations. The Court here opined that the trial court was justified in finding that an injury resulted from selling en masse instead of by separate parcel after the trial court heard testimony from an expert real estate appraiser that the sale in parcels would have brought about a considerably larger sum of money. Id.
“[Hawkins] here has failed to provide this Court evidence that he experienced a financial injury as a result of the foreclosure sale. Instead, [Hawkins] contends that such evidence is not required at this stage in the litigation, stating that ‘it is not required that the [defendant prove any part of his case only that he raise an issue of material fact.’
“The Court holds that the law requires more, as shown by Ex parte General Motors Corporation, 769 So.2d 903 ([Ala.] 1999), in which the Alabama Supreme Court offered further clarification of Rule 56(c)[, Ala. R. Civ. P.]:
“ ‘In our view, the plain language of Rule 56(c) mandates the entry of summary judgment after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no “genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is “entitled to a judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. “The standard for granting summary judgment mirrors the standard for a directed verdict under Federal of Civil Procedure 50(a)
“Without evidence of [Hawkins’s] injury resulting from the foreclosure sale en masse, specifically monetary harm, [Hawkins] has not met his burden set out in Rule 56(c). Therefore, [Hawkins] has failed to raise a genuine issue as to any material fact.”

On February 15, 2008, Hawkins filed a postjudgment motion, arguing that the trial court’s summary-judgment order was contrary to the law and the facts of the case; he also filed a motion for a stay, in which he requested that the trial court stay execution of its judgment pending the disposition of Hawkins’s postjudgment motion. The trial court granted Hawkins’s motion for a stay on February 22, 2008. On April 9, 2008, the trial court entered an order denying Hawkins’s postjudgment motion; that order stated, in pertinent part:

“[T]he Court does not gloss over the fact that [LaSalle] abused the trust it enjoyed by powers conveyed under the mortgage. The evidence shows that [LaSalle] elected to sell [Hawkinsj’s residence en masse with two other parcels, for no good reason shown and in the face of [Hawkins’s] request to sell the property separately. The Court also notes that law on this issue recognizes that a mortgagor in [LaSalle’s] position serves as a kind of a trustee; if that be so, an entity that breaches such duties could expose itself to personal liability.
“Here, [Hawkins]’s motion must be denied because of the Court’s renewed conclusion that [Hawkins] has failed to meet his burden of providing substantial evidence of actual injury.”

On April 9, 2008, Hawkins filed a motion to stay execution of the court’s final judgment pending the resolution of Hawkins’s intended appeal and, pursuant to Rule 8(a)(3), Ala. R.App. P., to set a supersede-as bond. LaSalle filed a response to Hawkins’s motion on April 14, 2008. On April 22, 2008, the trial court entered an order granting Hawkins’s motion to stay, conditioned on his paying into the clerk of the trial court the monthly sum of $560. Hawkins filed his notice of appeal to this court on May 20, 2008.

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. Ho-durski, 899 So.2d 949, 952-58 (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.’ ”

Feagins v. Waddy, 978 So.2d 712, 715 (Ala.2007) (quoting Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004)).

Discussion

On appeal, Hawkins primarily argues that the trial court erred in entering a summary judgment in favor of LaSalle because, he says, the en masse sale of the three parcels impaired his rights to redeem the subject property, thus rendering the foreclosure sale, and LaSalle’s foreclosure deed, invalid. Hawkins asserts that his “loss of these rights constitutes injury that Alabama courts have recognized” and that “[t]he law does not require him to quantify this loss in terms of arithmetically calculated financial loss.” We agree.

We conclude that the trial court erred in determining that a mortgagor challenging a foreclosure sale in which separate properties were sold en masse rather than by parcel must prove monetary loss to invalidate the sale. The supreme court discussed at length the rule requiring that separate and distinct parcels are to be sold by parcel at a foreclosure sale (“the rule”) in J.H. Morris, Inc. v. Indian Hills, Inc., 282 Ala. 443, 455, 212 So.2d 831, 843 (1968):

“A mortgagee is, in a sense, a trustee for the mortgagor, and, in exercising the power of sale contained in the mortgage, the mortgagee must not disregard the rights of the mortgagor. The rule requiring that separate parcels be offered for sale separately arises out of the reasonable presumption, sanctioned by observation and experience, that property in distinct parcels, distinctly marked for separate and distinct enjoyment, will produce more when sold in parcels because the sale is thus accommodated to the probable wants of the purchasers. Of course, if such property is sold en masse and brings a fair price, the mortgagor will not be heard to complain. When a sale and purchase en masse are had under the power of sale contained in a mortgage, the mortgagor, if the purchaser acquires the property at a sum disproportionate to its real value, may, by seasonable action, have the sale annulled. Dozier v. Farrior, 187 Ala. 181, 65 So. 364 [ (1914) ].
“In a court of law, a power of sale is merely a part of a legal contract to be executed according to its terms. In a court of equity, it is quickened with the elements of a trust, and the donee of the power is charged as a quasi trustee with the duty of fairness and good faith in its execution to the end that the mortgagor’s property may be disposed of to his pecuniary advantage in the satisfaction of his debt. Bank of New Brockton v. Dunnavant, 204 Ala. 636, 638, 87 So. 105 [ (1920) ].
“The reason for the rule requiring property covered by a mortgage or lien, which property is in separate parcels distinctly marked for separate and distinct enjoyment, to be first offered for sale in parcels rather than en masse, is that a sale in parcels or lots opens a field to a greater number of bidders, is conducive to a better price, tends to prevent odious speculation upon the distress of the debtor, and enables him to redeem some of the property without being compelled to redeem it all. Kelly v. Carmichael, 217 Ala. 534, 537, 538, 117 So. 67 [ (1928) ]; Lee v. Macon County Bank, 233 Ala. 522, 172 So. 662 [(1937)].
“This rule applies where the property covered by the mortgage is separated into several distinct tracts or lots, either by natural boundaries, by the way in which it is platted or laid out, or by the fact that the parcels are not contiguous, and inures to the benefit of a party who has acquired rights in subordination to the mortgage by a conveyance from the debtor. Kelly v. Carmichael, supra.
“In absence of statute, the effect of a sale under the power en masse, under circumstances where it is to the interest of mortgagor to have the property sold in separate parcels, is not to render the sale void, but irregular and voidable on direct attack by bill in equity filed by the mortgagor, who must show that the trust incident to the exercise of the power has been abused and that he has suffered detriment in the undue sacrifice of his property, or that his right of redemption has been unduly hampered. Rudisill v. Buckner, 244 Ala. 653, 656, 15 So.2d 333 [ (1943) ].”

Hawkins argues that George v. Federal Land Bank of Jackson, 501 So.2d 432, 437 (1986), and Ames v. Pardue, 389 So.2d 927 (Ala.1980), make it clear that, “while recovery by the mortgagor is predicated upon his ability to establish injury as a result of the en masse foreclosure sale, it is clear that that injury may be cognizable in a form other than the transparent financial injury that the trial court envisioned in its order granting summary judgment to [La-Salle].” In George, however, the Alabama Supreme Court declined to set aside the foreclosure sale because the mortgagor had failed to present any evidence tending to show that the property that had been sold had been divided by natural boundaries or by the way it was platted. 501 So.2d at 436-37. Furthermore, in Ames, the Alabama Supreme Court reinstated the foreclosure sale despite the mortgagee’s sale of the property en masse rather than by parcel because the mortgagor had waived his right to demand a parcel-by-parcel foreclosure sale in the mortgage itself. 389 So.2d at 930. Thus, those cases offer little support for Hawkins’s argument.

The trial court correctly observed that, in Morris, the Alabama Supreme Court had focused on pecuniary considerations, determining that testimony by an expert real-estate appraiser that a sale by parcels would have yielded a higher purchase price than the sale en masse supported a finding that injury had resulted from selling en masse instead of by separate parcels. 282 Ala. at 456, 212 So.2d at 844. This, however, is not the end of our inquiry. In Dozier v. Farrior, 187 Ala. 181, 65 So. 364 (1914), the Alabama Supreme Court observed that the rule “arises out of ‘the reasonable presumption ... that such property’ ... ‘will produce more when sold in parcels, because the sale is thus accommodated to the probable wants of purchasers,’ ” 187 Ala. at 185, 65 So. at 366 (quoting Mahone v. Williams, 39 Ala. 202, 217 (1863)), and stated that, “if such property is sold en masse and brings a fair price, the mortgagor will not be heard to complain.” 187 Ala. at 186, 65 So. at 366.

The reasoning for the rule as articulated in Dozier, however, appears to be expounded upon in Kelly v. Carmichael, 217 Ala. 534, 117 So. 67 (1928), in which the Alabama Supreme Court stated that the reason for the rule is that it “opens a field to a greater number of bidders, is conducive to a better price, and ‘tends to prevent odious speculation upon the distress of the debtor,’ and enables him to redeem some of the property without being compelled to redeem it all.” 217 Ala. at 538, 117 So. at 71 (emphasis added). In Power v. Larabee, 3 N.D. 502, 57 N.W. 789 (1894), and Mohan v. Smith, 30 Minn. 259, 15 N.W. 118 (1883), both cited by the supreme court in Kelly in support of the reasoning behind the rule, the Supreme Court of North Dakota and the Supreme Court of Minnesota, respectively, determined that the rule should be followed when selling property en masse would interfere with the mortgagor’s right of redemption by requiring him or her to redeem the property in its entirety, rather than allowing the mortgagor to redeem those particular parcels that are valuable to him or her for a lesser price than the price of the property as a whole. Power, 3 N.D. at 507-68, 57 N.W. at 790; Mohan, 30 Minn, at 260, 15 N.W. at 118. That reasoning was clearly endorsed by the Alabama Supreme Court in Kelly.

Moreover, the discussion and ruling in Conway v. Andrews, 286 Ala. 28, 236 So.2d 687 (1970), lends further support for the argument made by Hawkins. In Conway, Gulf Development Company (“Gulf’) purchased a plot of unimproved land from Conway and gave Conway a promissory note for $90,000 as consideration, which was to be paid at a rate of $500 per month. 286 Ala. at 31, 236 So.2d at 689. Conway also took a mortgage upon the property; that mortgage provided that Conway would release individual lots from the mortgage upon the payment of $1,200 per lot. Id. Gulf paid for releases on 47 lots, and, thereafter, Gulfs business activity in developing the lots ceased, leaving 31 vacant lots in a second phase of the development and Lot 8 in the first phase of the development all unreleased and still subject to the mortgage. 286 Ala. at 31-32, 236 So.2d at 689-90. Andrews had purchased the house constructed by Gulf on Lot 8 in 1957 and had lived there since that time. 286 Ala. at 32, 236 So.2d at 690. “In 1965, after it became clear that she could not collect the balance due on Gulfs note,” Conway decided to foreclose; Conway published advertisements of the foreclosure in a newspaper and sold the 32 parcels at a public auction. Id. Conway submitted the highest bid and purchased the property for $50,000; Andrews, who Conway knew at the time of the auction had paid taxes on Lot 8 since 1957, had been out of town on business before the first advertisement regarding the sale had been run and had returned after the sale had been completed. Id. Conway made no effort to inform Andrews of the impending sale of his house and lot. Id. Conway then brought a statutory ejectment suit against Andrews, and Andrews filed a declaratory-judgment action in equity, seeking a declaration of his rights in the property. Id.

The trial court set aside the foreclosure and ordered Conway to release Lot 8 from her mortgage upon the payment to her by Andrews of $1,200. Id. On appeal, Conway argued that there was no equity in the case. 286 Ala. at 32, 236 So.2d at 691. The Alabama Supreme Court, however, concluded that the contention “that the foreclosure should be set aside because the foreclosure sale had been conducted en bloc instead of by contiguous parcels and that such a sale hindered [Andrews’s] right to redeem and that [Conway] had thereby abused the trust duty owed to [Andrews]” clearly contained equity. 286 Ala. at 34, 236 So.2d at 692. The court then stated:

“The case of Kelly v. Carmichael, 217 Ala. 534, 117 So. 67 [ (1928) ], is authority for the propositions that where the mortgage contemplates a subdivision of the property, as here, (1) the power of sale in the mortgage ‘is quickened with an element of trust’; (2) the rights, including the right to redeem part of the property without redeeming all, ‘inures to the benefit of a party who has acquired rights in subordination to the mortgage by a conveyance from the debtor’; and (3) that the reason for disfavoring en bloc sales is that such sale precludes a redemption of a separate part of the property taken.
“In order to attack a sale en bloc in equity, the mortgagor, or his grantees must show that the trust incident to the exercise of the power of sale in the mortgage has been abused and that he has suffered detriment in the undue sacrifice of the property, or that his right of redemption has been unduly hampered. Rudisill v. Buckner, 244 Ala. 653, 15 So.2d 333 [ (1943) ], and cases there cited. [Andrews] met these requirements in his bill.”

Id.

We conclude, based on Kelly and Conway, that Hawkins was not required to prove that the en masse foreclosure sale produced an inadequate price, as stated by the trial court. We hold that Hawkins presented a genuine issue of material fact precluding summary judgment by presenting substantial evidence indicating that he would lose his housing and that the foreclosure sale en masse hampered his ability to redeem the subject property. If satisfactorily proven at trial, those facts would render the foreclosure sale and the resulting foreclosure deed invalid and would prevent LaSalle from having the necessary standing to prosecute the ejectment action. See Cadle Co. v. Shabani, 950 So.2d 277, 279 (Ala.2006) (“In order to maintain an action for ejectment, a plaintiff must allege either possession or legal title, and the ‘action must be commenced in the name of the real owner of the land or in the name of the person entitled to possession thereof....’ § 6-6-280, Ala.Code 1975.”).

LaSalle argues that the trial court’s judgment is due to be affirmed because Hawkins failed to join NationsCredit, Birmingham Health Care, and Willie Dunn, who, according to LaSalle, were required to be joined as necessary parties pursuant to Rule 19(a), Ala. R. Civ. P. This case was initiated by LaSalle as an ejectment action against Hawkins; Hawkins, in turn, asserted that the foreclosure sale was void as an affirmative defense. LaSalle does not contend that Birmingham Health Care or Dunn have held any interest at any time in the subject property, which is the only property discussed in the complaint. Hence, they are not necessary parties within the meaning of Rule 19(a). With regard to NationsCredit, LaSalle alleged and provided an affidavit by Adam Shields asserting that the mortgage between Hawkins’s father and NationsCredit had been transferred and assigned to LaSalle. Because NationsCredit no longer had any interest in the subject property at the time of the foreclosure sale, NationsCredit is not a necessary party to the ejectment action. We therefore reject LaSalle’s argument that failure to join those parties somehow requires affirmance of the trial court’s judgment.

LaSalle next argues that the trial court’s judgment is due to be affirmed because, it says, Hawkins failed to file a counterclaim or to attempt to redeem the subject property within the one-year redemption period set forth in § 6-5-252, Ala.Code 1975. The trial court rejected that argument, concluding that LaSalle was put on notice less than one year after the foreclosure sale that Hawkins was raising the defense that the foreclosure sale was improper, that Hawkins had amended his answer to specifically plead that defense, and that the amendment related back, pursuant to Rule 15(c), Ala. R. Civ. P., to the date of Hawkins’s original answer, filed on October 18, 2006. We agree with the trial court that that amendment related back to the date of the original answer.

LaSalle argues further that, even if the defense of the invalidity of the foreclosure deed had been timely raised, under Muller v. Seeds, 919 So.2d 1174 (Ala.2005), Hawkins cannot prevail because he failed to file a counterclaim. In Muller, Muller filed an ejectment action requesting the trial court to eject Chris Seeds and Linda Seeds from property he had purchased at a foreclosure sale. 919 So.2d at 1176. The Seedses filed an answer and a counterclaim against Muller, alleging “breach of contract and wrongful foreclosure.” Id. The trial court later granted a motion for a summary judgment, filed by the Seedses, only as to Muller’s ejectment claim, and Muller appealed. Id. The Alabama Supreme Court stated the following in response to the Seedses’ argument that the defendant in an ejectment action can prevail over the plaintiff by demonstrating that the property should have been sold in individual parcels rather than en masse:

“We note ... that in Conway Andrews prevailed and the trial court set aside Conway’s foreclosure because Andrews counterclaimed in chancery requesting that the sale be set aside. 286 Ala. at 32, 236 So.2d at 690. In every other case that we have found, a trial court has likewise set aside a foreclosure only upon a pleading specifically requesting such relief....
“In their counterclaim, the Seedses alleged Muller’s ‘wrongful foreclosure’ and specifically requested that the trial court set aside the foreclosure. That counterclaim, however, has never been ruled upon and is not before this Court. Only Muller’s ejectment claim is currently at issue, and only the Seedses’ legal and equitable defenses to that claim may be considered in reviewing the summary judgment. Other than the Seedses’ earlier argument that they paid sufficient consideration to Muller for a release of Lot 3 from the mortgage, however, they argue the applicability of no defense — legal or equitable. Thus they have failed to present evidence sufficient to entitle them to a summary judgment on Muller’s ejectment claim. Consequently, concluding that the Seedses failed to meet their burden, we reverse the summary judgment.”

919 So.2d at 1178.

Muller does not stand for the proposition that the invalidity of a foreclosure sale may be raised only in a counterclaim to an ejectment action. Muller merely held that when the invalidity of a foreclosure sale is raised only in a counterclaim, that counterclaim will not be considered a defense to the ejectment action. In this case, Hawkins specifically pleaded the invalidity of the foreclosure sale as a defense to the ejectment action. As such, under Muller, by presenting substantial evidence in support of that defense, Hawkins presented sufficient evidence to defeat LaSalle’s motion for a summary judgment.

LaSalle also asserts that the trial court erred by holding that LaSalle abused its trust. LaSalle, however, did not file a cross-appeal in this case. “[T]he Alabama Rules of Appellate Procedure do not allow an appellee to cross-assign errors without taking an appeal.” Headley v. Housing Auth. of Prattville, 347 So.2d 532, 534 (Ala.Civ.App.1977). See also Rule 4(a)(2), Ala. R.App. P. Thus, we decline to address any assignment of error on the trial court by LaSalle.

Because there was a genuine issue of material fact before the trial court as to the validity of the foreclosure sale, and because the voidance of the foreclosure sale would necessarily defeat LaSalle’s ejectment action, we reverse the trial court’s summary judgment in favor of La-Salle, and we remand the cause for further proceedings. Because we are reversing on this ground, we decline to address any remaining arguments by Hawkins asserting that the foreclosure sale was improper.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: THOMAS, Judge. BRYAN, Judge,

license: Public Domain

text:
    NHS MANAGEMENT, LLC, et al. v. Peter WRIGHT, as administrator of the estate of Viola Jenkins.
    2071129.
    Court of Civil Appeals of Alabama.
    May 29, 2009.
    L. Peyton Chapman III and Stephen P. Dees of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellants.

      L. Andrew Hollis, Jr., Kathryn S. Harrington, and Greg W. Foster of Hollis, Wright & Harrington, P.C., Birmingham, for appellee.
   THOMAS, Judge.

NHS Management, LLC, Northport Health Services, Inc., d/b/a Tallassee Health and Rehabilitation, LLC, and Oui-da Gandy (hereinafter collectively referred to as “NHS”) appeal from the trial court’s order granting the “motion to reconsider” the trial court’s order compelling arbitration filed by Peter Wright, as administrator of the estate of Viola Jenkins. We reverse and remand.

Facts and Procedural History

On June 6, 2002, a nursing home operated by NHS admitted Viola Jenkins as a patient. Sonya Newman, a family member, signed the admission agreement as Jenkins’s “responsible party,” although Newman did not have the power to represent Jenkins in any legal capacity. The admission agreement contained a provision requiring arbitration of any and all claims against NHS. On May 3, 2004, Jenkins died while still under the care of NHS.

On May 2, 2006, Wright, as the administrator of Jenkins’s estate, sued NHS, alleging negligence and wantonness, violation of certain state statutes, “violation of resident’s rights,” and breach of contract. Wright alleged that NHS’s actions had caused Jenkins to suffer injuries from a fall and/or from an assault by other nursing-home residents and that those injuries had caused or contributed to her death. On August 2, 2006, NHS moved the trial court to compel arbitration and to stay the proceedings. Wright answered NHS’s motion to compel arbitration and argued that the arbitration provision in the admission agreement was not enforceable because it was a contract of adhesion. The trial court allowed Wright to conduct limited discovery on the issue whether the admission agreement was a contract of adhesion. On February 9, 2007, NHS filed in the trial court a status report and a supplemental filing in support of its motion to compel arbitration. On April 3, 2007, the trial court conducted a hearing on NHS’s motion to compel arbitration. Wright had telephoned NHS’s attorney before the hearing and had informed her that Wright would not oppose the motion to compel. Wright did not attend the hearing, and the trial court entered an order granting NHS’s motion to compel arbitration and staying all proceedings. Wright did not appeal the trial court’s order.

On July 20, 2007, and on August 20, 2007, the trial court requested a status update from the parties, and on August 31, 2007, it entered an order that gave the parties 30 days to give the trial court a written status update of the case or face dismissal of the action. On September 4, 2007, Wright filed a demand for arbitration with JAMS, a dispute-resolution service selected by NHS. On October 4, 2007, JAMS acknowledged the arbitration demand and requested that the parties provide it with additional documentation and that NHS pay additional arbitration fees. On October 26, 2007, before NHS had paid the additional arbitration fees, Wright informed JAMS that he was withdrawing from arbitration. On October 31, 2007, the trial court entered an order dismissing the case for “want of prosecution.” On November 14, 2007, Wright moved the trial court to reinstate the case, and the trial court entered an order granting Wright’s motion.

On December 14, 2007, Wright filed in the trial court a “Motion to Reconsider the Court’s Order Compelling This Matter to Arbitration.” In his motion, Wright argued that the trial court should reconsider its order compelling arbitration in light of the Alabama Supreme Court’s May 4, 2007, decision in Noland Health Services, Inc. v. Wright, 971 So.2d 681 (Ala.2007). On April 29, 2008, the trial court granted Wright’s motion to reconsider and set aside its earlier order compelling arbitration. NHS appealed to the Alabama Supreme Court; that court subsequently transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7.

Issue

NHS presents one issue on appeal. Whether the trial court exceeded its discretion when it granted Wright’s motion to reconsider, which we interpret to be a motion filed pursuant to Rule 60(b)(5), Ala. R. Civ. P., and set aside its prior order compelling arbitration.

Standard of Review

“‘A strong presumption of correctness attaches to the trial court’s determination of a motion made pursuant to Rule 60(b), and the decision whether to grant or deny the motion is within the sound discretion of the trial judge, and the appellate standard of review is whether the trial court [exceeded] its discretion.’ ”

Osborn v. Roche, 813 So.2d 811, 815 (Ala.2001) (quoting Ex parte Dowling, 477 So.2d 400, 402 (Ala.1985)). Thus, we must determine whether the trial court exceeded its discretion in granting Wright’s Rule 60(b) motion and setting aside its order compelling the arbitration of Wright’s claims against NHS.

Analysis

NHS argues that because Wright did not appeal the trial court’s April 3, 2007, order that compelled Wright to arbitrate his claims against NHS, the trial court erred when it granted Wright’s Rule 60(b) motion setting aside its prior order. After the trial court had entered its order granting NHS’s motion to compel arbitration, and before the period during which Wright could appeal that order had expired, the Alabama Supreme Court released its decision in Noland Health Services, Inc. v. Wright, 971 So.2d 681 (Ala.2007). In that opinion, the Alabama Supreme Court held, in a plurality decision, that the administrator of a decedent’s estate was not bound by the arbitration provision in a nursing-home admission contract when the contract had been signed by an individual who was not the decedent’s legal representative. Wright argues that Noland represents a change in the law from the time the trial court entered its order to compel arbitration, that he properly sought relief by moving the trial court to set aside its prior order pursuant to Rule 60(b), and that the trial court properly granted his motion.

“In Patterson v. Hays, 623 So.2d 1142, 1145 (Ala.1993), [the Alabama Supreme] Court stated:

“ ‘Although relief from a judgment may be granted under Rule 60(b)(5) if a prior judgment upon which the judgment is based has been reversed or otherwise vacated, or if it is no longer equitable that the judgment should have prospective application, “[Rule 60(b)(5)] does not authorize relief from a judgment on the ground that the law applied by the court in making its adjudication has been subsequently overruled or declared erroneous in another and unrelated proceeding.” 7 Jerome Wm. Moore, Moore’s Federal Practice par. 60.26(3X1991).’
“628 So.2d at 1145. See also City of Daphne v. Caffey, 410 So.2d 8, 10 (Ala.1982) (‘Rule 60 is not a substitute for an appeal.’); McLeod v. McLeod, 473 So.2d 1097, 1098 (Ala.Civ.App.1985) fWe first note that Rule 60(b) is an extreme remedy to be used only under extraordinary circumstances.’); Marsh v. Marsh, 338 So.2d 422, 423 (Ala.Civ.App.1976) (‘The cases applying Rule 60(b), though seeking to accomplish justice, have indicated careful consideration for finality of judgment[s]. In that regard, they have required the movant to show good reason for failure to take appropriate action sooner ... and to show a good claim or defense.’).”

Kupfer v. SCI-Alabama Funeral Servs., Inc., 893 So.2d 1153, 1156-57 (Ala.2004). See also Harris v. MaHin, 834 F.2d 361, 364 (3d Cir.1987) (“[T]he ‘prior judgment’ clause of Rule 60(b)(5)[, Fed.R.Civ.P.,] ‘does not contemplate relief based merely upon precedential evolution.’ Mayberry [v. Maroney ], 558 F.2d [1159,] 1164 [ (3d Cir.1977) ]; see also 11 C. Wright & A. Miller, Federal Practice and Procedure § 2863 (1973); Comment, Federal Rule of Civil Procedure 60(b): Standards for Relief from Judgments Due to Changes in Law, 43 U. Chi. L.Rev. 646, 652-56 (1976). Its operation ‘is limited to cases in which the present judgment is based on the prior judgment in the sense of res judicata or collateral estoppel.’ Marshall [v. Board of Ed. of Bergenfield, N.J.], 575 F.2d [417,] 424 [ (3d Cir.1978) ] (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure § 2863 (1973)).”).

In Kupfer, supra, the trial court denied SCI’s motion to compel arbitration after it had determined that the contract containing an arbitration clause did not implicate interstate commerce. SCI did not appeal the trial court’s denial of its motion to compel arbitration. After the trial court had denied SCI’s motion to compel arbitration, but before the time for SCI to file an appeal had run, the Supreme Court of the United States released its decision in Citizens Bank v. Alafabco, 539 U.S. 52, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003), which, SCI argued, changed the law with respect to what constituted interstate commerce. SCI moved the trial court pursuant to Rule 60(b)(5) and argued that Alafabco represented a change in the law on which the trial court had based its earlier order denying SCI’s motion to compel arbitration. The trial court granted SCI’s Rule 60(b) motion and entered an order compelling arbitration. The Alabama Supreme Court reversed the trial court’s order granting SCI’s rule 60(b)(5) motion, stating:

“Had SCI appealed the trial court’s April 2, 2003, order, SCI would have been able to argue, once the United States Supreme Court released Alafab-co, that Alafabco had changed the law and that the trial court had erroneously determined that the transaction in issue did not fall within the scope of Congress’s Commerce Clause power. Because SCI did not appeal, SCI cannot now argue that it is entitled to compel arbitration. SCI failed to do everything reasonably possible to preserve the issue. Therefore, the Supreme Court’s decision in Alafabco does not justify granting SCI’s motion for relief pursuant to Rule 60(b)(5). See Patterson [v. Hays], 623 So.2d [1142,] 1145 [(Ala. 1993)] (“‘[Rule 60(b)(5)] does not authorize relief from a judgment on the ground that the law applied by the court in making its adjudication has been subsequently overruled or declared erroneous in another and unrelated proceeding.’”). Moreover, SCI’s July 1, 2003, ‘motion to reconsider’ cannot substitute for an appeal. See Ex parte Dowling, 477 So.2d 400, 404 (Ala.1985) (‘A motion to reconsider cannot be used as a substitute for an appeal.’). To allow SCI to seek relief pursuant to Rule 60(b)(5), Ala. R. Civ. P., would essentially permit SCI to bring an out-of-time appeal and would subvert the principle of the finality of judgments.”

Kupfer, 893 So.2d at 1157.

In this case, as in Kupfer, Wright did not appeal the trial court’s order compelling arbitration, and the Alabama Supreme Court issued its opinion in Noland before the time had run for Wright to file a notice of appeal. Therefore, Wright cannot now use Rule 60(b)(5) to substitute for an appeal. See Dowling, 477 So.2d at 404 (“A motion to reconsider cannot be used as a substitute for an appeal.”). Moreover, the Alabama Supreme Court’s decision in Noland does not justify the trial court’s grant of Wright’s Rule 60(b)(5) motion. See Patterson v. Hays, 623 So.2d 1142, 1145 (Ala.1993) (“ ‘[Rule 60(b)(5) ] does not authorize relief from a judgment on the ground that the law applied by the court in making its adjudication has been subsequently overruled or declared erroneous in another and unrelated proceeding.’ ” (quoting Jerome Wm. Moore, Moore’s Federal Practice ¶ 60.26(3) (1991))). Therefore, the trial court exceeded its discretion when it granted Wright’s Rule 60(b) motion and set aside its prior order compelling arbitration.

Conclusion

Because Wright was not entitled to relief pursuant to Rule 60(b), we reverse the trial court’s order setting aside its prior order compelling arbitration and remand the cause for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

BRYAN, J., concurs specially.

BRYAN, Judge,

concurring specially.

Wright did not appeal from the trial court’s order compelling arbitration. The Alabama Supreme Court released Noland Health Services, Inc. v. Wright, 971 So.2d 681 (Ala.2007), a case on which Wright relies, before the time had run for taking such an appeal. Accordingly, Wright “failed to do everything reasonably possible to preserve the issue” whether he could be compelled to arbitrate his claims. Kupfer v. SCI-Alabama Funeral Servs., Inc., 893 So.2d 1153, 1157 (Ala.2004). Therefore, I concur.

      . Because Wright alleged in his motion to reconsider that the Alabama Supreme Court's decision in Noland, supra, had changed the law on which the trial court had based its prior decision, we interpret Wright's motion to reconsider as a motion filed pursuant to Rule 60(b)(5), Ala. R. Civ. P. Rule 60(b)(5) provides, in pertinent part, that a court “may relieve a party ... from a final judgment, order, or proceeding for the following reasons: ... (5) ... a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.”


author:
KELLUM, Judge.
     WELCH, Judge,

text:
    Kenneth Bernard JAMES v. STATE of Alabama.
    CR-06-0396.
    Court of Criminal Appeals of Alabama.
    May 1, 2009.

      William M. Dawson, Jr., and Stephen Cochran Wallace, Birmingham, for appellant.
    Troy King, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Kenneth Bernard James, was convicted of intentional murder, a violation of § 13A-6-2, Ala.Code 1975. He was sentenced to life imprisonment. He was also ordered to pay court costs, restitution, and all applicable fines. James appeals that conviction and sentence.

The evidence presented at trial tended to establish the following. Jo Mo Odom testified that on August 21, 2004, he was living at a residence on 19th Place Southwest in Birmingham. On that afternoon, he and his friend, Michael McFarland, were outside the residence sitting on McFarland’s automobile. Odom was sitting on the hood of the automobile, and McFarland was sitting on the trunk. While they were sitting on the vehicle, Odom watched Kenneth Bernard James drive his vehicle by them a couple of times.

Around 4:00 p.m., James stopped his car, and McFarland got into James’s automobile. McFarland and James conducted a conversation in James’s automobile. James and McFarland then got out of James’s car and walked over to McFarland’s vehicle.

James gave McFarland a cellular telephone, and McFarland placed the phone on a charger in his automobile. After a short time, McFarland gave the phone back to James, but kept the phone’s “phone chip,” i.e., the “SIM”/memory card. James told McFarland that he needed the phone chip, and that he could not leave without it. McFarland said that the chip belonged to him. According to Odom, there was no argument at that point.

James then got into his car and drove away. Approximately two to three minutes later, James turned his vehicle around and came back to McFarland’s vehicle. James parked his car beside McFarland’s ear and got out. James approached McFarland, who was sitting on the trunk of his vehicle and again asked him for the phone chip. McFarland responded that he was not going to give James the chip.

Odom testified that at that point, a cell phone in James’s pocket rang, and James removed the phone from his pocket and answered it. At the conclusion of the call, James put the phone back into his pocket. Odom testified that when James reached into his pocket a second time, he thought James was going to answer his cell phone again; instead, James pulled out a revolver with his right hand. James then shot McFarland in the chest twice — the first time in the area of McFarland’s heart, and the second time, higher on his chest.

When James walked to where Odom was sitting on the front of the car, Odom put his hands in the air and stated, “I ain’t got nothing to do with it.” (R. 102.) James walked back to where McFarland was and put the gun to McFarland’s head, but he did not shoot. James then left.

Odom testified that McFarland did not have a gun with him that day; he stated there had not been any type of argument or scuffle between James and McFarland when the shooting occurred.

Odom testified that after McFarland was shot he immediately telephoned the police from the “house phone” that he had with him at the vehicle. The police arrived in approximately 15-20 minutes.

Jo Mo Odom’s brother, Tramayn Odom, and Bobby Richardson were walking toward Odom’s home when they saw James drive his vehicle past them, turn around, and pull up beside McFarland’s vehicle. McFarland was sitting on the trunk of his vehicle. Both vehicles were facing Tra-mayn Odom and Richardson.

According to Tramayn and Richardson, James got out of his vehicle and approached McFarland and stood facing McFarland at approximately an arm’s length distance. Tramayn and Richardson testified that they heard James tell McFarland, “Give me the chip.” (R. 62-63; 68.) Tramayn testified that he then heard McFarland tell James, “[T]he chip don’t come with it. Just the phone.” (R. 62-63.) Both Tramayn and Richardson testified that they did not see any altercation or argument between McFarland and James.

According to their testimony, James shot McFarland, and McFarland fell off the automobile. Richardson testified that approximately five seconds later, James shot McFarland a second time. After shooting McFarland, James aimed the gun at Jo Mo Odom. Tramayn Odom testified that James put the gun down and stood over McFarland before getting into his vehicle and driving away.

Tramayn Odom got a pillow and a blanket for McFarland. Tramayn and Richardson tried unsuccessfully to revive him.

No weapon was recovered from the scene. A purple book bag containing drugs was recovered from the trunk of McFarland’s vehicle, and a small plastic bag containing syringes was found in the glove compartment. The police did not find any cell phone, memory card for a cell phone, or gun in McFarland’s car.

McFarland suffered three gunshot wounds to his body — two in his chest, and one in the webbing between the fingers on the palm of his hand. He died as a result of the gunshot wounds to his chest. According to the medical examiner, the muzzle of the gun was at least 18" from the point of entry into McFarland’s body when the shots were fired. McFarland’s urine tested positive for cocaine and opiates.

James testified in his defense. He testified that he and McFarland were friends and that they had conducted drug transactions in the past. Around 3:30 p.m. on August 21, 2004, James saw McFarland as he drove near where McFarland was standing in the street. McFarland motioned to James, and James pulled his car beside McFarland’s car. McFarland told James that he wanted to buy some drugs. When McFarland got into James’s car, James asked him, “Where the money at?” (R. 177.) McFarland told James that after Jo Mo made a sale, he would have the money. James waited for a while, but left when he received a telephone call.

James testified that he returned to the car because McFarland continued calling him on his cell phone. McFarland told James that he wanted to buy back the telephone McFarland had given him to pawn. When James returned, he drove down the street and made a U-turn, then returned and parked beside McFarland’s car.

James stayed in his car and asked McFarland for the money. At that point, McFarland got into his own vehicle with Jo Mo, then he got out of his vehicle and came to James’s car. James testified that McFarland put a black revolver to his head and told James to get out of the car. James complied and put his hands into the air.

McFarland asked for his cell phone, but James testified that he had sold it earlier. James then reached into the car to get McFarland’s other cell phone. When he gave McFarland the cell phone, McFarland asked him, “Now, where the dope at?” (R. 180.) James replied, “I ain’t got no dope.” (R. 180.) McFarland said, “No, I know you got the dope.” (R. 180-81.) James reached into his sock, and gave McFarland a bag of “dope.”

James testified that McFarland then demanded money. When James denied having any money, McFarland placed the gun under his left arm, and patted James down with his right hand. McFarland was holding his cell phone in his left hand. While this was transpiring, Jo Mo was telling McFarland that he was going to have to kill James, because James would tell McFarland’s father and uncle about the incident.

James grabbed the gun from under McFarland’s arm. James testified that McFarland reached up under his shirt, so he thought McFarland was retrieving another gun. James backed up and hit the bumper of his own car and fired two shots. He testified that he was terrified and that he was in fear for his life when he fired the gun. James said that he thought McFarland was going to kill him. James testified that he did not intend to kill McFarland, only to get him to back away.

According to James, Jo Mo looked like he was going to run toward him, but he stopped. James said that he then dropped the gun, got into his car, and drove away.

Ivan Batain testified for the defense. He was standing in the street in front of Mario McFarland’s house on 19th Place Southwest, when he saw what appeared to him to be a robbery in progress; namely, Michael McFarland robbing Kenneth James. Batain stated that McFarland was pointing a gun at James, and James had his hands in the air. As Batain walked toward the front porch of McFarland’s house, he heard gunshots.

James was not arrested and charged with McFarland’s murder until almost two months after the incident.

I.

James contends that the trial court committed reversible error in refusing to charge the jury on provocation manslaughter. He maintains that the “record contains sufficient evidence to warrant submission of that theory of the case to the jury.” (James’s brief, p. 24.)

Defense counsel submitted proposed written jury charges on provocation manslaughter. During the charge conference, defense counsel requested that the trial court charge on provocation manslaughter as a lesser-included offense of intentional murder. Defense counsel argued that James’s testimony that he was ordered out of his car at gunpoint, robbed, patted down, and threatened with death, provided sufficient evidence of provocation to necessitate submitting the issue to the jury. Defense counsel also argued that self-defense and provocation manslaughter are not mutually exclusive, and whether there was sufficient provocation recognized by law should be a question for the jury.

The trial court refused to charge the jury on provocation manslaughter because, it found, the charge was not warranted under the fact situation. The trial court reasoned that there was no “heat-of-passion” presented and that James’s own testimony established that he acted out of fear for his life. Thus, the trial court determined that he was either guilty of murder, or he was innocent because he acted in self-defense.

Because of its relevance to the present case, we quote at length from McDowell v. State, 740 So.2d 465 (Ala.Crim.App.1998).

“ ‘ “A person accused of the greater offense has a right to have the court charge on the lesser offenses included in the indictment, when there is a reasonable theory from the evidence supporting his position. Chavers v. State, 361 So.2d 1106 (Ala.1978); Fulghum v. State, 291 Ala. 71, 277 So.2d 886 (1973); Wiggins v. State, 491 So.2d 1046 (Ala. Cr.App.1986); Wilkerson v. State, 486 So.2d 509 (Ala.Cr.App.1986). A court may properly refuse to charge on a lesser included offense only when (1) it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) the requested charge would have a tendency to mislead or confuse the jury. Lami v. State, 43 Ala. App. 108, 180 So.2d 279, cert. denied, 278 Ala. 710, 180 So.2d 282 (1965). Every accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility. Ex parte Stork, 475 So.2d 623 (Ala.1985); Chavers v. State, supra; Burns v. State, 229 Ala. 68, 155 So. 561 (1934). Section 13A-l-9(b) provides, ‘The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.’
i ‘ “ ‘The “safer” practice is to charge upon all degrees of homicide: “(It) is much the safer rule to charge upon all degrees of homicide included in the indictment, when a party is on trial for murder, unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree.” Pierson v. State, 99 Ala. 148, 153, 13 So. 550 (1893), approved in Williams v. State, 251 Ala. 397, 399, 39 So.2d 37 (1948).’
“ ‘ “Phelps v. State, 435 So.2d 158, 163 (Ala.Cr.App.1983).”
‘Anderson v. State, 507 So.2d 580, 582-583 (Ala.Crim.App.1987).
“ ‘The offense of “heat-of-passion” manslaughter is defined in § 13A-6-3(a)(2), Code of Alabama 1975, as follows:
“1 “(a) A person commits the crime of manslaughter if:
“ ‘ “(2) He causes the death of another person under circumstances that would constitute murder under Section 13A-6-2; except, that he causes the death due to sudden heat of passion caused by provocation recognized by law, and before a reasonable time for the passion to cool and for reason to reassert itself.”
“ ‘ “[Section] 13A-6-3(a)(2) is designed to cover those situations where the jury does not believe a defendant is guilty of murder but also does not believe the killing was totally justified by self-defense.” Shultz v. State, 480 So.2d 73, 76 (Ala.Crim.App.1985). See also Shiflett v. State, 507 So.2d 1056 (Ala.Crim.App.1987).’
“Williams v. State, 675 So.2d 537, 540-41 (Ala.Crim.App.1996). This court has also stated:
“ ‘The defendant must present evidence of legal provocation to require a charge on heat of passion.
“ ““ “Manslaughter is the unlawful killing of a human being without malice; that is, the unpremeditated result of passion-heated blood-caused by a sudden, sufficient provocation. And such provocation can, in no case, be less than assault, either actually committed, or menaced under such pending circumstances as reasonable to convince the mind that the accused has cause for believing, and did believe, he would be presently assaulted, and that he struck, not in consequence of a previously formed design, general or special, but in consequence of the passion suddenly aroused by the blow given, or apparently about to be given”....’”
‘Easley v. State, 246 Ala. 359, 362, 20 So.2d 519, 522 (1944), quoting Reeves v. State, 186 Ala. 14, 16-17, 65 So. 160 (1914).
“ ‘The mere appearance of an imminent assault may be sufficient to constitute legal provocation to support heat-of-passion manslaughter. Cox v. State, 500 So.2d 1296, 1298 (Ala.Cr. App.1986). “To constitute adequate legal provocation, it must be of a nature calculated to influence the passions of the ordinary reasonable man.” Biggs v. State, 441 So.2d 989, 992 (Ala.Cr.App.1983).’
“Harris v. State, 683 So.2d 26, 28 (Ala.Crim.App.1996).
“In addition, ‘Provocation has been defined as that treatment by another which arouses anger or passion, which produces in the minds of persons ordinarily constituted the highest degree of exasperation, rage, anger, sudden resentment, or terror. Johnson v. State, 129 Wis. 146, 108 N.W. 55 (1906).’ Nelson v. State, 511 So.2d 225, 240 (Ala. Crim.App.1986), aff'd, 511 So.2d 248 (Ala.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988).
“In denying McDowell’s requested charges on manslaughter, the trial court stated that because McDowell had testified that his purpose in returning to the scene was to effect a reconciliation, it would be improper to instruct the jury on heat-of-passion manslaughter because McDowell was not ⅛ such a blind fury that he acted regardless of the admonition of the law, in other words, that he was beside himself with fury in the shooting.’ The trial court failed to recognize that passion encompasses more than the single emotion of fury or rage. Black’s Law Dictionary 1124 (6th ed.1990) defines passion as it relates to manslaughter as ‘any of the emotions of the mind known as rage, anger, hatred, furious resentment, or terror, rendering the mind incapable of cool reflection.’ J. Miller, Handbook of Criminal Law § 92(d) (1934), states: ‘Although the passion of manslaughter is frequently referred to as a passion of anger it may be any of the other emotional outbursts which are referred to as passion as for instance sudden resentment, or fear, or terror, provided only that it result from adequate provocation and that it be actually the cause of the killing.’ There was evidence presented that, if believed by the jury, would support a finding that in those moments when Simon was approaching him, McDowell believed that Simon was about to assault him and that McDowell acted out of fear.
“It also appears that the trial court concluded that the evidence presented supported a jury charge on either self-defense or ‘heat-of-passion’ manslaughter, but not on both. However, the fact that McDowell argued that he had acted in self-defense did not preclude a jury charge on ‘heat-of-passion’ manslaughter.
“ ‘ “Although the labels have now changed with the restructuring of homicide offenses in Alabama’s new Criminal Code, the analyses applied in Reeves [v. State, 186 Ala. 14, 65 So. 160 (1914) ] and Roberson [v. State, 217 Ala. 696, 117 So. 412 (1928) ] still apply.... The Roberson court emphasized that ‘a defendant who claims self-defense is not thereby precluded from asserting that the homicide was committed under circumstances reducing it to manslaughter, where the evidence before the jury would so authorize.’ The weight and credibility of appellant’s evidence was a matter exclusively within the province of the jury and a proper manslaughter charge was warranted. Dennis v. State, 112 Ala. 64, 20 So. 925 (1896); Roberson v. State, supra. Although the new code restructuring of homicide offenses has helped somewhat, the difficulty of distinguishing between murder and manslaughter in any given ease still exists. Therefore, it is still much the safer rule to charge upon all the degrees of homicide included in the indictment when a party is on trial for murder. Dennis v. State, supra. Reeves v. State, supra; Roberson v. State, supra; Phelps v. State [, 435 So.2d 158 (Ala.Cr.App.1983) ], and cases therein cited.” ’
“Hill v. State, 485 So.2d 808, 809-10 (Ala.Crim.App.1986), quoting Wyllie v. State, 445 So.2d 958, 963 (Ala.Crim.App. 1983).”

740 So.2d at 467-69. See also Miller v. State, 739 So.2d 1143 (Ala.Crim.App.1999); Williams v. State, 675 So.2d 537 (Ala.Crim.App.1996).

Here, James testified that McFarland— who was considerably larger in stature than James — pointed a gun at James, ordered James out of his car, patted him down, and then attempted to rob him. While this was transpiring, Jo Mo Odom remarked that McFarland would have to kill James so that James could not tell McFarland’s father and uncle about the incident. James testified that he grabbed the gun from McFarland, as McFarland tried to pat him down. James testified that he thought McFarland was reaching for another gun, so he stepped back and fired the gun twice because he thought McFarland was going to kill him. James testified that he was terrified during the incident.

After reviewing the evidence in light of the principles set forth above, we hold that there was sufficient evidence of provocation to necessitate submitting the issue to the jury. Self-defense and provocation manslaughter are not mutually exclusive, and whether there was sufficient provocation recognized by law was a question for the jury. Accordingly, the trial court committed reversible error in refusing to charge the jury on provocation manslaughter.

Although the judgment in this case must be reversed for the reason set forth above, out of an abundance of caution we deem it necessary to address an additional issue raised by James that could arise in any future proceedings.

II.

James contends that the trial court erred when it allowed the prosecution to question James about his postarrest silence, in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

During cross-examination, the prosecutor questioned James about what he did after he shot McFarland, and the following exchange occurred:

“Q [PROSECUTOR]: ... At that point, you get in your car and you leave.
“A: Yes.
“Q: Let me ask you this. Did you go to the nearest police station?
“A: No, sir.
“Q: Okay. Did you go to the police at all that particular day?
“A: No, sir.
“Q: Okay. You went to the police the next day.
“A: No, sir.
“Q: The next week.
“A. No, sir.
“Q: You eventually made a police report about that robbery attempt.
“A: I eventually went to you.
“Q: Did you eventually call the police, and make a report, and sign your name to it, identifying the folks that tried to rob you?
“A: No, sir, I had went and got me a lawyer.”

(R. 197-98.)

A few questions later the following colloquy occurred:

“Q: ... When were you arrested, sir?
“A: October 13th, I believe.
“Q: Was that approximately two months later?
“A. Yes sir.
“Q. When you were arrested, did you tell the police about the robbery?
“[DEFENSE COUNSEL]: Judge, I object. There is—
“A: No, sir.
“[DEFENSE COUNSEL]: —a Constitutional issue here. We move for a mistrial.
“[THE COURT] Overruled and denied.”

(R. 198-99.)

The trial court then told defense counsel that it would let him elaborate on his objection later, and the prosecution asked one final question:

“Q. So, you never told the police about the robbery?
“A. No, sir.”

(R. 199.) Defense counsel again objected, and the trial court overruled that objection.

Outside the presence of the jury, defense counsel expounded upon his previous objection:

“[DEFENSE COUNSEL]: Okay, the State asked the question, ‘After you was [sic] arrested you didn’t tell the police about the robbery and that?’ It’s all one thing. There is obviously no requirement that a defendant do that. He has a right to remain silent, to not be required to say anything, and we think any comment upon his failure to do so invades his 5th Amendment privilege and would require curative instructions.
“[PROSECUTION]: Your Honor, the defendant testified that he was robbed by the victim. He said that a crime was committed against HIM. I specifically asked him about the crime that was committed against him. I did not go into the prima facie case of our case of murder. I specifically asked him about telling the police about the crime that was committed against him, according to his own testimony.
“[DEFENSE COUNSEL]: Well, we submit the question was phrased ‘Upon your arrest.’ He certainly wasn’t arrested for being the victim of a robbery.”

(R. 200-01.)

The trial court denied the request for curative instructions.

“The prohibition against impeaching a testifying defendant with his postarrest silence does not apply where the jury has not been shown that the defendant’s silence was preceded by Miranda warnings. In Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), the United States Supreme Court limited its holding in Doyle [v. Ohio, 426 U.S. 610 (1976),] as follows:
“ ‘In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand. A State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which postarrest silence may be deemed to impeach a criminal defendant’s own testimony.’
455 U.S. at 607, 102 S.Ct. 1309. ‘ “[T]he key to the exclusionary rule of Doyle is the giving of Miranda warnings.’” Kidd v. State, 649 So.2d 1304, 1307 (Ala.Crim.App.1994), quoting Sulie v. Duckworth, 689 F.2d 128,132 n. 1 (7th Cir.1982) (Cudahy, J., dissenting), cert. denied, 460 U.S. 1043, 103 S.Ct. 1439, 75 L.Ed.2d 796 (1983). The adverse use of a defendant’s silence in the absence of Miranda warnings is permitted. See, e.g., Gainer v. State, 553 So.2d 673, 683 (Ala.Crim.App.1989). In this case, nothing in the record suggested that Rogers was given his Miranda rights after he turned himself in to police or at any time thereafter, and Rogers makes no such assertion in his brief to this Court. Therefore, the State’s questioning of Rogers regarding his silence was proper.”

Rogers v. State, 819 So.2d 643, 652 (Ala.Crim.App.2001).

In this case, at the time the allegedly improper question was propounded, there was no evidence before the jury that James had been informed of his Miranda rights, and, as in Rogers, James “makes no such assertion in his brief to this Court.” Rogers, 819 So.2d at 652. Although the better practice would be to scrupulously avoid any question or comment that could be misinterpreted as a comment on a defendant’s postarrest, post -Miranda silence, under these facts we cannot conclude that the prosecution’s single question regarding why James did not tell the police about the alleged robbery after his arrest constituted reversible error. However, we caution the trial court to take care that no Doyle v. Ohio violation arises in any future proceedings.

For the reason set for in Part I, James’s conviction and sentence are due to be, and they are hereby, reversed, and this cause is remanded to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WISE, P.J., and WINDOM, J., concur.

WELCH, J., concurs in the result, with opinion.

WELCH, Judge,

concurring in the result.

As to this Court’s “caution” in Part II, I note that the trial court was not confronted with a Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), problem because no witness testified that the defendant was ever read his Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), rights. I trust the trial court to properly handle this issue should it arise during the retrial.

      . This case was originally assigned to another judge on the Court of Criminal Appeals; it was reassigned to Judge Kellum on January 20, 2009.

      . In the trial transcript, this witness is sometimes referred to as "Jo Mo” Odom and sometimes referred to as "Jumbo” Odom. For purposes of this opinion, we will refer to him as Jo Mo Odom.

      . On cross-examination, Richardson testified that he told police that he heard James and McFarland arguing.

      . Mario McFarland is Michael McFarland's cousin.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: WELCH, Judge.

text:
    D.H v. STATE of Alabama.
    CR-07-1560.
    Court of Criminal Appeals of Alabama.
    May 1, 2009.

      D.E. “Skip” Brutkiewicz, Jr., Mobile, for appellant.
    Troy King, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.
   WELCH, Judge.

D.H. was charged with second-degree assault based on his allegedly helping another student, R.P., strike a school teacher, Melinda Rudisill, and causing her to suffer a physical injury. See, § 13A-6-21(a)(5), Ala.Code 1975. Although D.H. was 17 years old at the time of the offense, and, thus, not an adult, D.H. bypassed the juvenile court system and was transferred to the adult division of the circuit court pursuant to § 12-15-34.1, Ala.Code 1975. On June 5, 2008, following a bench trial, D.H. was adjudicated a youthful offender based on a charge of second-degree assault, a violation of § 13A-6-21, Ala.Code 1975. That same day, the trial court sentenced D.H. to a term of three years in prison and ordered him to pay $50 to the crime victims compensation fund. This appeal followed.

On appeal, D.H. argues that his conviction is void because, he says, the adult division of the circuit court lacked jurisdiction to preside over his prosecution. Section 12-15-1(7), Ala.Code 1975, a part of the Juvenile Justice Act (formally §§ 12-15-1 through -176, Ala.Code 1975), defines the juvenile court as: “The juvenile division of ... the circuit court as established by this chapter.” As a general rule, the juvenile court has exclusive original jurisdiction over proceedings in which a child is accused of a delinquent act (an act designated as a crime). § 12-15-30(a), Ala.Code 1975. Nevertheless, “Section 12-15-34.1[, Ala.Code 1975,] automatically remove[s] from the jurisdiction of the juvenile court a juvenile age 16 or over who is alleged to have committed any one of certain enumerated serious offenses. See § 12-15-34.1(a)(l) through (6), Ala.Code 1975.” Anderson v. State, 729 So.2d 900, 902 (Ala.Crim.App.1998). The portion of § 12-15-34.1 relevant to this discussion provides:

“(a) Notwithstanding any other provision of law, any person who has attained the age of 16 years at the time of the conduct charged and who is charged with the commission of any act or conduct, which if committed by an adult would constitute any of the following, shall not be subject to the jurisdiction of juvenile court but shall be charged, arrested, and tried as an adult:
“(4) A felony which has as an element thereof the causing of death or serious physical injury.
“(5) A felony which has as an element thereof the use of a dangerous instrument against any person who is:
“i. A teacher, principal, or employee of the public education system of Alabama.

(Emphasis added.)

D.H. was charged as follows:
“The GRAND JURY of said County charge, that, before the finding of this indictment [D.H.] whose name is to the Grand Jury otherwise unknown than as stated, did, with the intent to cause physical injury to Melinda Rudisill, who is a Mobile County School Teacher, aid another participant in causing physical injury to Melinda Rudisill to-wit: by striking her in the head, in violation of § 13A-6-21 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

(CR. 6.) (Emphasis added.)

According to D.H., the charged conduct did not meet any criteria that triggers automatic removal to the adult division of the circuit court, and thus, that court did not have jurisdiction to preside over his case. Specifically, D.H. argues that,

“[i]n the instant case, although there is an allegation that the victim is a Mobile County school teacher, there is no allegation that there was use of a deadly weapon, or that serious physical injury occurred, or that there was a dangerous instrument used against a teacher.
“Because the charging indictment does not set forth any grounds that allow for the ‘automatic’ trial of a minor as an adult, the defendant should have been tried as a child in the Juvenile Court and the Circuit Court had no jurisdiction to try him as an adult.”

(D.H.’s brief, at pp. 7-8; emphasis added.)

We agree with D.H. D.H.’s offense, as charged, does not meet any criteria under § 12-15-34.1(a), Ala.Code 1975, to automatically remove a child from the jurisdiction of the juvenile court. However, because D.H. did not preserve this issue in the circuit court for appellate review, the question becomes: Is the improper removal of a child from the jurisdiction of the juvenile court pursuant to § 12-15-34.1(a), Ala.Code 1975, a jurisdictional impediment subject to appellate review without regard to preservation? Ex parte Hargett, 772 So.2d 481, 482 (Ala. Crim.App.1999) (“ ‘Jurisdictional matters are of such magnitude that [appellate courts] take notice of them at any time and do so even ex mero motu.’ ” (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987))).

Arguably, D.H. should have objected to the automatic removal based on the face of the indictment, which does not justify a transfer, and upon which D.H. now relies to support his claim. Ex parte Seymour, 946 So.2d 536 (Ala.2006), requires that a claim resting on a challenge to an infirmity within the indictment be raised in the trial court in order to obtain appellate review. Seymour states: “The validity of Seymour’s indictment is irrelevant to whether the circuit court had jurisdiction over the subject matter of this case.” 946 So.2d at 539. However, for the reasons set forth below, the situation presented by these facts is distinguishable from Ex parte Seymour.

Although the “adult” division of the circuit court has concurrent subject-matter jurisdiction with the “juvenile” division of the circuit court because, together, these divisions form the circuit court as a whole, § 12-15-30(a), Ala.Code 1975, specifically states: “The juvenile court shall exercise exclusive original jurisdiction of proceedings in which a child is alleged to be delinquent .... ” (Emphasis added.) Thus, the improper application of the automatic removal provision, § 12-15-34.1, Ala.Code 1975, does not divest jurisdiction from the juvenile division of the circuit court and convey jurisdiction to the adult division of the circuit court. Thus, there is no consequence to D.H.’s failure to preserve this issue because this Court is required to notice jurisdictional defects. Nunn v. Baker, 518 So.2d 711 (Ala.1987).

“ ‘ “[I]f a court ha[s] no jurisdiction, its action is void.”’ Moore v. State, 596 So.2d 58, 54 (Ala.Crim.App.1991), quoting State v. Johns, 142 Ala. 61, 38 So. 755, 755 (1905), quoting in turn Church, Church On Habeas Corpus, § 245, n. 1. Because the trial court’s actions were void, there is no judgment to support an appeal. McKinney v. State, 549 So.2d 166,168 (Ala.Crim.App.1989).”

L.R.G. v. State, 996 So.2d 208, 210 (Ala.Crim.App.2008).

Accordingly, the adult division of the circuit court must set aside its judgment for lack of jurisdiction and transfer the case to the juvenile division of the circuit court where proceedings against D.H. may begin anew. This appeal is dismissed.

APPEAL DISMISSED.

WISE, P.J., and WINDOM and KELLUM, JJ., concur.

      . The following terms are defined at § 12-15-1, Ala.Code 1975:
      "Adult. An individual 19 years of age or older.” § 12-15-1(1), Ala.Code 1975.
      "Child. An individual under the age of 18, or under 19 years of age and before the juvenile court for a matter arising before that individual’s 18th birthday.” § 12 — 15— 1(3), Ala. Code 1975.
      "Minor. An individual who is under the age of 19 years and who is not a ‘child’ within the meaning of this chapter.” §12-15-1(18), Ala. Code 1975.

      . Effective January 1, 2009, the statutes regarding juvenile proceedings, § 12-15-1 et seq., Ala.Code 1975, were amended. As part of the amendments, these statutes were renumbered as § 12-15-101 et seq. Because the instant offense occurred on May 18, 2007, we will use the pre-January 1, 2009, citations to the juvenile code. Substantive amendments effective January 1, 2009, are, for the same reason, not applicable here.

      . On July 28, 2008, more than 30 days from sentencing, D.H. filed an untimely posttrial motion asserting that the trial court lacked jurisdiction to try him because D.H. did not meet the criteria set forth in 12-15-34.1 to be automatically tried as an adult.

      . We note that the testimony at trial was that R.P. struck Rudisill with his fist.


text:
    William E. CALHOUN v. STATE of Alabama.
    CR-07-1229.
    Court of Criminal Appeals of Alabama.
    May 1, 2009.
    Glenn L. Davidson, Mobile, for appellant.
    Troy King, atty. gen., and John J. Davis, asst. atty. gen., for appellee.
   WELCH, Judge.

William E. Calhoun appeals from the denial of his motion to reconsider his sentence, made pursuant to § 13A-5-9.1, Ala. Code 1975, commonly referred to as a Kirby motion. Kirby v. State, 899 So.2d 968 (Ala.2004). On November 15, 1993, Calhoun pleaded guilty to and was convicted in two cases of second-degree burglary and one ease of promoting prison contraband. As a result, he was sentenced as a habitual felony offender to three concurrent terms of life imprisonment.

On July 12, 2007, Calhoun filed the instant Kirby motion in the Choctaw Circuit Court, requesting that the court reconsider his sentence and resentence him to 15 years on each offense because, he says, he was a “non-violent convicted offender.” (C. 42.) The trial court issued an order on December 12, 2007, requiring the Alabama Board of Pardons and Paroles to furnish a pre-sentence report and the Alabama Department of Corrections to submit to the trial court information about Calhoun’s sentences, his next parole-review date, and his conduct while in prison. After appointing counsel, the trial court on March 20, 2008, held a hearing on Calhoun’s motion for reconsideration of his sentence. (R. 1-8.) Before any evidence was taken, the attorney for the State asserted:

“In Kirby certain requirements had to be met prior to the defendant being eligible for reconsideration. One of those requirements is that a defendant must not have been convicted of any violent crime. For that reason the State moves to dismiss the petition filed by the defendant for reconsideration of his sentence due to the fact he has been previously convicted of a violent crime, and violent offenders are not eligible under Kirby.
“If the Court would look at Page 6, actually Page 7 of [the Report of Investigation prepared by the Alabama Board of Pardons and Paroles], the defendant was convicted in Geneva County Circuit Court on January 2nd of 2007 of sexual abuse in the second degree, [cjlearly a violent crime as the Statute and case law holds. Burglary is a violent crime, and he’s got numerous burglary second convictions. A burglary second conviction would qualify as a violent crime, not burglary third.
“Based on that, I believe the Court could make a determination of his petition procedurally. There is no reason to have a hearing on the merits because he is not eligible under the ruling in Kirby.”

(R. 2-3.)

Calhoun, through counsel, argued that the offenses that were characterized by the district attorney as violent offenses were committed without any violence on his part. We note that § 13A-11-70(2), Ala.Code 1975, includes burglary as a crime of violence, but not second-degree sexual abuse. Section 12-25-32(13), Ala. Code 1975, considers first-degree sexual abuse and second-degree burglary only in some situations as violent offenses. Also, Calhoun’s conviction for promoting prison contraband is a Class C felony and therefore not eligible for resentencing under § 13A-5-9.1, Ala.Code 1975.

Following the arguments of counsel and before the presentation of any evidence, the trial court stated: “All right. I think this petition is procedurally barred by virtue of the fact he has a violent offense. I’m going to dismiss his petition based on that ground.” (R. 6-7.) On the same date, the trial court issued a written order, which stated: “The Defendant’s Kirby Petition is dismissed for the cause that the Defendant has been previously convicted of a violent crime, to-wit: Sexual Abuse, 2nd Degree and Burglary, 2nd Degree.” (C. 121.)

Calhoun petitioned the trial court to reconsider and reduce the sentences of life imprisonment that had been imposed as a result of his convictions of two counts of second-degree burglary and one count of promoting prison contraband. The trial court considered that Calhoun had been convicted of the second-degree-burglary charges in Choctaw County and a second-degree-sexual-abuse charge in Geneva County. It is clear that the trial court believed that it could not grant relief because the court considered second-degree sexual abuse and second-degree burglary to be violent crimes, precluding resentenc-ing pursuant to § 13A-5-9.1, Ala.Code 1975.

This is not a case in which the trial court considered the defendant’s record, considered his conduct, determined whether he was eligible for resentencing as a “nonviolent convicted offender” pursuant to § 13A-5-9.1, Ala.Code 1975, and then denied his motion for resentencing. In such a case, the decision of the trial court is entitled to great deference and will not be disturbed on appeal. See Kirby, 899 So.2d at 974 (noting that “the state’s trial judges have the authority under the statute to determine whether a defendant is a nonviolent offender”). See also, Sanders v. State, 934 So.2d 432, 434 (Ala.Crim.App.2005) (“Whether an inmate is a violent offender is for the circuit court to determine and, in the absence of an abuse of its discretion in so determining, we will not disturb its finding on appeal.”).

This is a case in which the trial court incorrectly concluded that Calhoun was not eligible for resentencing because he had been “previously convicted of a violent crime.” (C. 121.)

As explained in Holt v. State, 960 So.2d 726 (Ala.Crim.App.2006), it is the conduct of the petitioner and the individual circumstances of the crimes he has committed that form the basis for a determination of whether the petitioner is a “non-violent convicted offender,” pursuant to § 13A-5-9.1, Ala.Code 1975:

“Therefore, the fact that a crime is defined as a ‘violent offense’ under § 13A-11-70 and/or § 12-25-32 [Ala.Code 1975], although certainly a relevant and appropriate consideration, is not binding on a circuit court in determining whether an inmate is a ‘nonviolent convicted offender’ within the meaning of § 13A-5-9.1. In other words, merely because an inmate has been convicted of a ‘violent offense’ as defined in § 13A-11-70 and/or § 12-25-32 does not mean that that inmate is a ‘violent offender’ for purposes of § 13A-5-9.1; committing a ‘violent offense’ as defined in § 13A-11-70 and/or § 12-25-32 is not the equivalent of being a ‘violent offender’ under § 13A-5-9.1. Had the legislature intended to preclude any inmate convicted of a ‘violent offense’ as defined in § 13A-11-70 and/or § 12-25-32 from receiving the benefits of § 13A-5-9.1, it could have easily said that § 13A-5-9 would apply retroactively only to those offenders who had not been convicted of an offense defined by statute as a ‘violent offense.’ Instead, the legislature chose to state that § 13A-5-9 would apply retroactively to any ‘nonviolent convicted offender.’ ”

960 So.2d at 736-37.

Although, had it been considered, there was ample evidence in the record to support a discretionary decision that Calhoun was not a nonviolent convicted offender, that evidence consisted of numerous infractions of various prison disciplinary rules and regulations, some of that involved arguably violent incidents, as well as a record of eight felony offenses committed prior to the three convictions that are the basis of the instant petition, and one felony conviction in 2007 for second-degree sexual abuse, committed after them. However, the trial court did not determine that Calhoun was not a nonviolent convicted offender based on his conduct, but solely on the character of the offenses he had committed. This denied to Calhoun the individualized determination of whether he should be resentenced under § 13A-5-9.1, Ala.Code 1975.

If this Court had only the trial court’s ambiguous written order, then we might interpret that order to mean that the trial court found Calhoun to be a violent offender based on the totality of all the facts before it. However, before the entry of the written order, the trial court stated that Calhoun could not be considered for resentencing because he was “procedurally barred by virtue of the fact he has a violent offense.” (R. 6-7; emphasis added.) In view of this statement, it is clear that the trial court determined that Calhoun was a violent offender only on the basis that burglary is defined by statute as a violent offense.

Based on the foregoing, the judgment of the circuit court is reversed and this cause remanded for the circuit court to reconsider Calhoun’s Kirby motion in light of the principles set forth in Kirby, supra, Holt, supra, and this opinion. We emphasize that we are expressing no opinion on whether Calhoun is or is not a violent offender. Our holding is limited to a determination that the trial court incorrectly determined that Calhoun was ineligible to be considered for resentencing under § 13A-5-9.1, Ala.Code 1975.

REVERSED AND REMANDED WITH DIRECTIONS.

WISE, P.J., and WINDOM and KELLUM, JJ., concur.


author: WISE, Presiding Judge.

text:
    Thomas Eugene STURDIVANT v. STATE of Alabama.
    CR-07-1234.
    Court of Criminal Appeals of Alabama.
    May 1, 2009.
    Benjamin Kelly, Jackson, for appellant.
    Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

On April 7, 2004, the appellant, Thomas Eugene Sturdivant, was convicted of felony driving under the influence (“felony DUI”). The trial court sentenced him to serve a term of ten years in prison, but split the sentence and ordered him to serve seventeen months followed by five years on supervised probation. On March 12, 2007, Sturdivant’s probation officer filed an “Officer’s Report on Delinquent Probationer.” After conducting a revocation hearing, the circuit court revoked his probation. This appeal followed.

During the revocation hearing, Randall Estes testified that he was Sturdivant’s probation officer; that the State Probation Office was advised that Sturdivant had been indicted for three counts of first-degree rape and first-degree sexual abuse; that the incidents that formed the basis for those charges took place while Sturdivant was on probation; and that Sturdivant was arrested pursuant to the indictment.

L.H. testified that Sturdivant was her sister’s boyfriend; that her sister had a daughter, C.M.; that C.M. lived with her, and she had custody of C.M.; and that C.M. was the victim of the charges for which Sturdivant was indicted. She also testified that C.M. told her that she had been sexually molested and penetrated and that it had happened from June 2005 through June 2006; that C.M. was eleven years old when she told her about the abuse; and that C.M. had been taken to the gynecologist.

Sturdivant argues that the circuit court erroneously revoked his probation based solely upon hearsay.

“ ‘The use of such hearsay evidence as the sole means of proving the violation of the probation condition denied appellant the right to confront and cross-examine the person who originated the factual information which formed the basis for the revocation. For this reason, appellant was denied minimal due process of law, and the evidence was insufficient to prove the alleged violation of probation.’
“[Mallette v. State,] 572 So.2d [1316,] 1317 [ (Ala.Crim.App.1990) ]. See also Ex parte Belcher, 556 So.2d 366 (Ala. 1989) (State’s evidence held insufficient in probation revocation hearing where evidence consisted of probation officer’s testimony that, while on probation, the appellant was charged with a federal offense, i.e., conspiring to possess, with intent to distribute, approximately 1000 pounds of marijuana, and certified copies of the federal charge).
“ ‘[T]he law is clear that the formality and evidentiary standards of a criminal trial are not required in parole revocation hearings. Thompson v. State, 356 So.2d 757 (Ala.Crim.App. 1978), Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975). Hearsay evidence may be admitted in the discretion of the court, though the State acknowledges that hearsay evidence cannot be the sole support of revoking probation. Mitchell v. State, 462 So.2d 740 (Ala.Crim.App.1984).
“ ‘Although probation is a “privilege” and not a right, Wray v. State, 472 So.2d 1119 (Ala.1985), certain standards of due process of law must be met to justify revocation. Those standards are set out in Armstrong v. State, supra.
“ ‘... While we recognize that all the formal requirements of a criminal trial are not mandated, and that the burden of proof is different, Thompson v. State, 356 So.2d 757 (Ala.Cr.App.1978) (“[t]he standard of proof is not reasonable doubt or preponderance of the evidence, but reasonable satisfaction from the evidence”), we also recognize that “[hjearsay information may not be used to furnish the sole basis of the revocation.” Watkins v. State, 455 So.2d 160 (Ala.Cr.App.1984). See, also, Moore v. State, 432 So.2d 552 (Ala.Cr.App.1983). In the case at bar, we find that the evidence in the record was insufficient. Although evidence sufficient to support a conviction is not required, a probation officer’s report and/or an arrest warrant, standing alone or together, would be insufficient.’
“Ex parte Belcher, supra, at 368-69 (emphasis in original).”

Hall v. State, 681 So.2d 247, 248 (Ala.Crim.App.1995).

In this case, the only evidence the State presented about the new offenses was L.H.’s hearsay testimony regarding statements C.M. made to her. The State contends that “[t]he indictment returned against Sturdivant itself was enough to support revocation. In Alabama, an indictment cannot be based on illegal evidence.” (State’s brief at p. 9.) However, in Alabama, “[a] grand jury may indict on hearsay testimony alone.” Coral v. State, 628 So.2d 954, 964 (Ala.Crim.App.1992). Further,

“because a Federal indictment may be handed down on hearsay, Costello v. United States, 850 U.S. 859, 76 S.Ct. 406, 100 L.Ed. 397 [(1956)], such an indictment, in and of itself, would not alone furnish ground for revocation of probation. Nevertheless, it is such a circumstance that the circuit court may justifiably use to hold a revocation hearing if the prosecution is prepared to prove the substance of the Federal charge.”

Dixon v. State, 42 Ala.App. 341, 342-43, 164 So.2d 509, 510 (1964). Because an indictment in Alabama can be based solely on hearsay, the indictment alone could not serve as the sole ground for revoking Stur-divant’s probation. Furthermore, as we noted previously, the only other evidence regarding the new offenses was L.H.’s hearsay testimony about C.M.’s statements. For these reasons, State did not present sufficient nonhearsay evidence to support the revocation of Sturdivant’s probation. Accordingly, we reverse the circuit court’s judgment revoking Sturdi-vant’s probation and remand this case to the circuit court for proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

WELCH, WINDOM, and KELLUM, JJ., concur.