author: PER CURIAM. MOORE, Judge,

text:
    Willie Jerome DAVIS v. LaQuana Vonsha DAVIS
    2150492
    Court of Civil Appeals of Alabama.
    October 21, 2016

      See also 169 So.3d 1038

      L. Scott Johnson, Jr., Montgomery, for appellant.
    H. Lewis Gillis of Means Gillis Law, LLC, Montgomery, for appellee.
   PER CURIAM.

Willie Jerome Davis (“the husband”) appeals from a judgment of the Elmore Circuit Court (“the trial court”) divorcing him from LaQuana Vonsha Davis (“the wife”) and dividing the marital property.

This is the third time the parties have come before this court in connection with this divorce action. In Ex parte Davis, 169 So.3d 1038 (Ala. Civ. App. 2014) (“Davis I”), this court granted the husband’s petition for a writ of mandamus to the extent he sought to supplement the record in a separate appeal with materials that, he said, indicated that he had not received notice of the final hearing in this action. Once the record was supplemented, this court considered the husband’s appeal from the judgment the trial court had entered on March 6, 2014 (“the 2014 divorce judgment”), purporting to divorce the parties. In Davis v. Davis, 183 So.3d 976, 981 (Ala. Civ. App. 2015) (“Davis II”), we held that the circuit clerk’s failure to notify the husband of the final hearing in the divorce action deprived the husband of his right to procedural due process and, therefore, that 2014 divorce judgment was void. Accordingly, the appeal was dismissed. In a separate, consolidated appeal, we determined that, in the divorce action, the trial court had improperly awarded Jerry Blevins, the attorney who had represented the husband in a separate criminal matter, a fee for work the attorney had done while representing the husband in the criminal matter. Davis II, 183 So.3d at 981-82. We held that the order awarding Blevins a fee was a nullity, and the appeal from that order was also dismissed. Id. at 982.

After the appeals considered in Davis II were dismissed, litigation in the divorce action continued, including the exchange of discovery. On January 6, 2016, after an ore tenus hearing, the trial court entered a judgment (“the 2016 divorce judgment”) divorcing the parties, awarding the marital residence to the wife, and awarding the wife all of the proceeds from the settlement check (“the settlement check”) that the husband had received in what is commonly known as “the Black Farmers litigation.” No other property was mentioned in the 2016 divorce judgment. The wife was directed to pay a portion of Blevins’s attorney fee, which the husband had incurred in the separate criminal matter. The husband filed a timely postjudgment motion, asserting that the trial court had erred in determining that the check was marital property. The trial court denied the postjudgment motion on February 1, 2016. The husband then filed a timely notice of appeal to this court.

On appeal, the husband contends that the trial court erred in finding that the settlement check was marital property and awarding it to the wife. The record on appeal indicates the following regarding this issue. The wife testified that the parties were married in January 2009. In his written deposition testimony, the husband said that he had initially filed a claim in' the Black Farmers litigation in 1999, before the parties married. During the marriage, the husband said, he received paperwork to refile his claim. He said that he and a friend who was also a claimant went to Clanton, where people from Washington, D.C., working on behalf of the black farmers assisted all of the claimants-in completing the paperwork at the same time. The husband disputed the wife’s testimony that she had done research for the husband and had helped him file the claim. The husband also stated that thefe was no research that had had to be done.

The wife testified that the husband- was arrested in May 2012. After, his arrest, the wife said,- the husband asked her to retain Blevins to represent him in the criminal matter. The "wife testified that, at the husband’s request, she had signed his name on the contract to hire Blevins and that she had also signed her name as a guarantor of payment for the legal services Blevins would provide to the husband. As mentioned, the husband was convicted in the criminal matter, and he is now serving a life sentence in a federal prison in Kentucky.

The settlement check, made payable to the husband in the amount of $50,000, was issued on October 3, 2013. The wife testified that the husband was incarcerated by that time, and she ‘did not send him the settlement check. On December 10, 2013, the wife filed a complaint seeking a divorce from the husband. A week after filing the divorce complaint, the wife filed an emergency petition requesting permission to sign and cash the settlement check.

On March 6, 2014,. the trial court entered a judgment purporting to divorce the parties. One of the provisions of the 2014 divorce judgment ordered the wife to negotiate the settlement check and to use the proceeds to “extinguish the legal services debt owed by [the husband] to .., Blevins for the legal defense provided by attorney Blevins to the [husband] in the United States.District Court Criminal case which led to the [husband’s] conviction and.incarceration in the federal penitentiary under a life sentence.” The wife testified that, pursuant to the 2014 divorce judgment, she negotiated the settlement check and paid Blevins $30,000 from the total proceeds of $50,000. The record shows that the total settlement was for $62,000; however, $12,500 of that amount was paid directly to the Internal Revenue Service for taxes.

After the husband went to prison, Blevins filed an action against the wife seeking payment of the fees he was owed for his representation of the husband in the criminal matter; On February 5, 2014, Blevins obtained a consent judgment against the wife in the amount of $41,035.44. On April 4, 2014, while the husband’s motion to alter, amend, or vacate the 2014 divorce judgment" was pending, Blevins filed a motion to intervene in the divorce action. In his motion, Blevins asserted that the wife had paid him only $30,000 out of the proceeds of the settlement check and had retained $20,000 for herself. The trial court granted Blevins’s motion to intervene on May 28, 2014. On June 2⅜ 2014, Blevins filed a motion for the entry of a judgment against the -wife, seeking the money he said she. had retained from the settlement check. On September 10, 2014, the trial court entered a final judgment in the divorce action awarding Blevins an additional $9,980.50. At the January 2016 final hearing, the wife testified that she had paid Blevins the additional $9,980.50, as ■ordered by the trial, court, for-a total payment to Blevins of- $39,980.50. She also said that with the $10,019.50 remaining from the proceeds of the settlement check she had paid her attorney fee in the divorce action and bills that had been incurred during the marriage.

After the proceeds from the settlement check had been disbursed, however, this court held that the 2014 divorce judgment was void. Davis II, 183 So.3d at 981. We also held that the trial court had erred in allowing Blevins to intervene in the divorce action and that the September 10, 2014, order directing the wife to pay Blevins an additional $9,980.50 was void. Id. at 981-82.

' The proceeds from the settlement check are what the husband-is now claiming were wrongly awarded to the wife in the 2016 divorce judgment because, he says, the settlement check was not marital property. Specifically, ■ the husband argues that because he filed his initial claim in the Black Farmers litigation before the.parties married, and because the settlement check was not negotiated'until after the entry of the 2014 divorce judgment, the proceeds of the settlement check were never used for the benefit of the parties during their marriage. Therefore, he contends, the settlement check could not be marital property. In’ other words, the husband contends that the settlement check was his separate estate. The husband also contends that the trial court repeated its error from Davis II, supra, when it “awarded” Blevins money from the settlement check.

As mentioned, after the 2014 divorce judgment was entered, and while the appeal of that judgment was pending, the wife cashed the settlement check and used a portion of the proceeds to pay Blevins the fee the husband owed him for his representation of the husband in the criminal matter. The wife testified that she also used a portion of the proceeds to pay other bills that had accrued during the marriage.

Rule 8(a), Ala. R. App, P., provides that an appellant “shall not be entitled to a stay of execution of the judgment pending appeal (except as provided in Rule 62(e), Ala. R. Civ. P.) unless the appellant executes bond with good and sufficient sureties ,..See also Rule 62, Ala. R. Civ. P. The notice of -appeal that the husband filed regarding the 2014 divorce judgment shows that the husband did not file a supersedeas bond or request a stay of execution of the 2014 divorce judgment. “[A]n appeal does not ordinarily supersede the judgment in the absence of a superse-deas bond.” St. Regis Paper Co. v. Kerlin, 476 So.2d 64, 66 (Ala. 1985)(citing Moore v. LeFlore, 288 Ala. 315, 260 So.2d 585 (1972)).

“The purpose of requiring a supersedeas bond is to preserve the status quo pending the appeal. Ex parte Spriggs Enterprises, Inc., 376 So.2d 1088 (Ala. 1979). When one appeals without posting a su-persedeas bond, the appellee’s right to enforce the judgment is not suspended during the appeal, and, whatever measures are necessary for the execution of the judgment, it is the duty of the trial court to pursue them on application of the party in interest. Ex parte Dekle, 278 Ala. 307, [309,] 178 So.2d 85[, 86] (1965).”

Baker v. Bennett, 660 So.2d 980, 982 (Ala. 1995). The posting of a supersedeas bond stays execution of the judgment and secures the status quo for an appellant, thereby avoiding the delay and expense of a new and independent restitution action if the judgment was otherwise entered but then reversed on appeal. See Donald v. Keith, 267 Ala. 136, 138-39, 99 So.2d 41, 43 (1957).

Because the husband failed to file a supersedeas bond to preserve the status quo when he appealed from the 2014 divorce judgment, the wife had a legal right to cash the settlement check that she had been awarded and to use the proceeds of the settlement check to pay the attorney fee that Blevins had been awarded in the 2014 divorce judgment. Furthermore, we note that, after he had prevailed in his appeal of the 2014 divorce judgment, the husband did not file an action seeking restitution from Blevins or the wife to recover the proceeds of the settlement check. See Kerlin, supra. In other words, the husband failed to meet his burden of preserving the status quo or seeking restitution to recover the proceeds that had already been disbursed by the time the trial court entered the 2016 divorce judgment purporting to award the settlement check to the wife. However, as a practical matter, because of the husband’s failure to post a supersedeas bond to preserve the status quo pending the appeal of the 2014 divorce judgment and his failure to seek restitution after he prevailed in the appeal of the 2014 divorce judgment, by the time the 2016 divorce judgment was entered there was nothing left of the settlement check or its proceeds to be awarded to either the husband or the wife.

“ ‘ “The test for mootness is commonly stated as whether the court’s action on the merits would affect the rights of the parties.” Crawford v. State, 153 S.W.3d 497, 501 (Tex. App. 2004) (citing VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993)). “A case becomes moot if at any stage there ceases to be an actual controversy between the parties.” Id. (emphasis added) (citing National Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999)).’
“Chapman v. Gooden, 974 So.2d 972, 983 (Ala. 2007) (first emphasis added). See also Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (‘[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’).”

South Alabama Gas Dist. v. Knight, 138 So.3d 971, 974-75 (Ala. 2013).

“ ‘[A]n appeal will be dismissed as moot “if an event happening after hearing and decree in circuit court, but before appeal is taken, or pending appeal, makes determination of the appeal unnecessary or renders it clearly impossible for the appellate court to grant effectual relief.” ’ Masonry Arts, [Inc. v. Mobile Cty. Comm’n,] 628 So.2d [334] at 335 [ (Ala. 1993) ], quoting Morrison v. Mullins, 275 Ala. 258, 259, 154 So.2d 16, 18 (1963).”

Estate of Mollett v. M & B Builders, L.L.C., 749 So.2d 466, 469 (Ala. Civ. App. 1999).

“ ‘The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.’ ”

King v. Campbell, 988 So.2d 969, 976 (Ala. 2007) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895)).

In this case, this court is now called upon to determine whether property that is no longer available to either the husband or the wife was marital property or part of the husband’s separate estate. During the course of this litigation, such a determination has become an abstract principle that cannot be carried into effect.

The dissenting judge asserts that the issue whether the settlement check or its proceeds constitute marital property is not moot because, he states, if the husband is correct, “this court could reverse the 2016 divorce judgment and order restitution.” 221 So. 3d at 485 (Moore, J., dissenting). However, whether an award of restitution to the husband would be proper and equitable in this case has never been litigated or even raised in the trial court. For this court to order restitution as suggested in the dissenting opinion would require us to make an improper factual determination, based on a silent record, as to the propriety of restitution. “‘The appellate courts do not sit in judgment of the facts, and [they] review the factfinder’s determination of facts only to the extent of determining whether it is sufficiently supported by the evidence, that question being one of law.’ ” Hinds v. Hinds, 887 So.2d 267, 272-73 n.2 (Ala. Civ. App. 2003) (quoting Curtis White Constr. Co. v. Butts & Billingsley Constr. Co., 473 So.2d 1040, 1041 (Ala. 1985)) (emphasis omitted).

For the reasons discussed, the issues the husband asserts on appeal regarding the propriety of the award of the proceeds of the settlement check to the wife in the 2016 divorce judgment are moot. King, supra, Estate of Mollett, supra, and Knight, supra. We will not hold the trial court in error for awarding the wife in the 2016 divorce judgment the same settlement-check proceeds that she had previously been awarded and that had already been disbursed in accordance with the 2014 divorce judgment.

The husband also states in his appellate brief that the trial court’s division ■ of property, awarding the wife, the marital residence and all of the proceeds from the settlement check, disproportionately favored the wife.

“The judgment of the trial court made following an ore tenus proceeding is presumed to be correct and will not be reversed absent plain and palpable error. Parrish v. Parrish, 617 So.2d 1036 (Ala. Civ. App. 1993). Matters involving alimony and property division incident to divorce are interrelated and within the sound discretion of the trial court. Parrish, 617 So.2d at 1038. Therefore, the entire judgment must be reviewed to determine if there has been an abuse of discretion, but the trial court’s judgment will not be disturbed on appeal except where its discretion was abused.' Id. ‘However, there is no presumption of correctness in the trial court’s applieation of [the] law to the facts.’ Brown v. Brown, 719 So.2d 228, 230 (Ala. Civ. App. 1998). The trial court, in making a determination regarding .property division and alimony, should consider such things as ‘the earning capacities of the parties, their future prospects, their ages and health, the length of the marriage, the value and type of property involved, and the conduct of the parties pertaining to the cause of the divorce.’ Pickett v. Pickett, 723 So.2d 71, 73 (Ala. Civ. App. 1998). The conduct of a party can affect the trial court’s -property division even when the parties are divorced on the grounds of incompatibility. Courtright v. Courtright, 757 So.2d 453 (Ala. Civ. App. 2000). Although a property division may not necessarily be equal, it must be equitable in light of the facts of the case. Proctor v. Proctor, 712 So.2d 328 (Ala. 1997).”

Nichols v. Nichols, 824 So.2d 797, 802 (Ala. Civ. App. 2001); Vardaman v. Vardaman, 167 So.3d 342, 346 (Ala. Civ. App. 2014).

The husband-did not develop this argument on appeal. Furthermore, there is little evidence in the record relevant to this issue. For example, the parties’ ages,, the ■wife’s earning capacity, and her future prospects are not mentioned in the record. The evidence shows that the wife did not file her complaint for a divorce from the husband until after he had been convicted and sentenced to life in prison, indicating that the breakdown- of the marriage was caused by the husband’s unlawful conduct and its consequences. Based on the record before us and the husband’s minimal argument on appeal as to this issue, we cannot say that the trial court abused its discretion as to this issue,

Finally, the husband contends that the trial court erred in denying his motion to alter, amend, or vacate the judgment without first holding a hearing, as required by Rule 69(g), Ala. R. Civ. P. The law as to this issue is well settled.

“Rule 69(g), Ala. R. Civ. P., provides that postjudgment ‘motions remain pending until ruled upon by the court (subject to the provisions of Rule 59,1) but shall not be ruled upon until the parties have had opportunity to be heard thereon.’ This court has held that ,
‘“[generally, a movant who requests a hearing on his or her post-judgment motion is entitled to such a hearing. Rule 69(g), Ala. R. Civ. P.; Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala. 2000). A trial court’s failure to conduct a hearing is error. Flagstar Enters., 779 So.2d at 1221.’
“Dubose v. Dubose, 964 So.2d 42, 46 (Ala. Civ. App. 2007); see also Staarup v. Staarup, 537 So.2d 56, 57 (Ala. Civ. App. 1988) (‘[Rule 59(g)] mandates that, when a hearing is requested on a motion for new trial, the hearing must be granted,’).
.“[However], this court has recognized an exception to. the general rule that the denial of a postjudgment motion without .conducting a requested .hearing is reversible error. See Gibert v. Gibert, 709 So.2d 1257, 1258 (Ala. Civ. App. 1998) (‘A trial court errs by not granting a hearing when’ one has been requested pursuant to Rule 59(g);l however, that error is not necessarily reversible error.’). ‘On appeal, ... if an appellate court determines that there is no probable merit to the motion, it may affirm based oii the harmless error rule.’ Palmer v. Hall, 680 So.2d 307, 307-08 (Ala. Civ. App. 1996); see also Lowe v. Lowe, 631 So.2d 1040, 1041 (Ala. Civ. App. 1993) (‘Denial of a Rule 59 motion without a hearing is reversible error if the movant requested a hearing and harmful error is found.’). The Alabama Supreme Court has stated:
“‘Harmless error occurs, within the context of a Rule 59(g) motion, where there is.either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.’
“Greene v. Thompson, 554 So.2d 376, 381 (Ala. 1989). However, ‘[w]hen there is probable merit to the motion, the error cannot be considered harmless.’ Dubose, 964 So.2d at 46.”

Wicks v. Wicks, 49 So.3d 700, 701 (Ala. Civ. App. 2010).

As discussed, the husband failed to take the steps to maintain the status quo or to recover the proceeds of the settlement check that had already been disbursed, in accordance with the terms of the 2014 divorce judgment, rendering issues involving the settlement check or its proceeds moot. Furthermore, evidence in the record supports the trial court’s decision to award the wife the marital residence, and the husband has failed to demonstrate that the trial court erred in making that award. We conclude there is no probable merit to the husband’s contentions that the trial court abused its discretion in awarding the wife the proceeds from the settlement check or the marital residence. Accordingly, any error that may have been committed when the trial court denied the husband’s post-judgment motion without first holding a hearing was harmless.

The issues involving the settlement check and the disbursement of its proceeds are moot and the husband has failed to demonstrate any error or abuse of discretion on the part of the trial court as to the other issues raised on appeal. Accordingly, the trial court’s judgment is affirmed.

AFFIRMED.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.

Moore, J., dissents, with writing.

MOORE, Judge,

dissenting.

Willie Jerome Davis (“the husband”) "appeals from a divorce judgment (“the 2016 divorce judgment”) entered by the Elmore Circuit Court (“the trial court”) on January 6, 2016, to the extent that it declared the proceeds from a settlement check (“the settlement check”), which had been issued by the United States Department of Agriculture as a result of certain litigation referred to as “the Black Farmers litigation,” to be marital property and awarded the settlement proceeds to LaQuana Von-sha Davis (“the wife”).

These parties have previously been before this court. See Ex parte Davis, 169 So.3d 1038 (Ala. Civ. App. 2014) (“Davis I”); and Davis v. Davis, 183 So.3d 976 (Ala. Civ. App. 2016) (“Davis II”).- In Davis II, the husband appealed from a divorce judgment entered by the trial court on March 6, 2014 (“the 2014. divorce judgment”). With regard to the settlement check, this court stated, in part, in Davis II:

“One of the provisions of the [2014] divorce judgment ordered the wife to execute the settlement check ... and to use the proceeds to ‘extinguish the legal services debt owed by [the husband] to .... [Jerry] Blevins for the, legal defense provided by attorney Blevins to the [husband] in the United States District Court Criminal case which led to the [husband’s] conviction and incarceration in the federal penitentiary under a life sentence.’ The check had been made payable only to the husband.”

183 So.3d at 978. This count held in Davis II that the trial court had failed to afford the husband due process and, therefore, that the 2014 divorce judgment was void. 183 So.3d at 981. This court dismissed the appeal, albeit with instructions to the trial court to set aside the 2014 divorce Judgment. Id.

The husband did not post a supersedeas bond relating to- the 2014 divorce judgment, The record in this appeal confirms that, while Davis II was pending before this court, the wife, in reliance on the 2014 divorce judgment, negotiated the settlement check and that she subsequently spent the net proceeds of the settlement check, largely to pay the attorney’s fees owed to Jerry Blevins for his services in representing the husband in the federal criminal case. After this court issued its certificate of judgment in Davis II, the trial court vacated the 2014 divorce judgment, conducted further proceedings, and entered the 2016 divorce judgment; the 2016 divorce judgment again awarded the wife the proceeds from the settlement check and ordered her “to satisfy a portion of the debt to Jerry Blevins for his representation of [the husband] in his Federal Criminal Court prosecution.”

The main opinion reasons that, “because of the husband’s failure to post a superse-deas bond to preserve the status quo pending the appeal of the 2014 divorce judgment and his failure to seek restitution after he prevailed in the appeal of the 2014 divorce judgment, by the time the 2016 divorce judgment was entered there was nothing left of the settlement check or its proceeds to be awarded to either the husband or the wife,” 221 So.3d at 480, and it affirms that portion of the 2016 divorce judgment pertaining to the settlement check based on the conclusion that the issues raised in the present appeal are moot. I disagree with that analysis.

“ ‘ “A moot case or question is a case or question in or on which there is no real controversy; a case which seeks to determine an abstract question which does not rest on existing facts or rights, or involve conflicting rights so far as plaintiff is concerned.” ’ Case v. Alabama State Bar, 939 So.2d 881, 884 (Ala. 2006) (quoting American Fed’n of State, County & Mun. Employees v. Dawkins, 268 Ala. 13, 18, 104 So.2d 827, 830-31 (1958)). ‘The test for mootness is commonly stated as whether the court’s action on the merits would affect the rights of the parties.’ Crawford v. State, 153 S.W.3d 497, 501 (Tex. App. 2004) (citing VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993)). ‘A case becomes moot if at any stage there ceases to be an actual controversy between the parties.’ Id. (emphasis added) (citing National Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999)).”

Chapman v. Gooden, 974 So.2d 972, 983 (Ala. 2007). “Thus, if the issue presented at the outset of the action has ceased to exist or is no longer ‘live,’ or if the court is unable due to an intervening event or change in circumstances to grant effective relief or to restore the parties to their original position, then the issue before the court is moot.” Progressive Direct Ins. Co. v. Stuivenga, 364 Mont. 390, 396, 276 P.3d 867, 872 (2012).

The mere facts that enforcement of the 2014 divorce judgment had not been stayed and that the wife spent the proceeds of the settlement check do not prevent this court from granting the husband effective relief in this appeal. As a general rule, a judgment debtor has a “right to recover what one has lost by the enforcement -of a judgment subsequently reversed.” Baltimore & Ohio R.R. v. United States, 279 U.S. 781, 786, 49 S.Ct. 492, 73 L.Ed. 954 (1929). Under 1 Restatement (Third) of Restitution and Unjust Enrichment § 18 (2011), “[a] transfer or taking of property, in compliance with or otherwise in consequence of a judgment that is subsequently reversed or avoided, gives the disadvantaged party a claim in restitution as necessary to avoid unjust enrichment.” “Restitution may.be ordered in connection with the reversal, either by the appellate court or by the trial court on remand, or may be pursued in an independent action.” Stuivenga, 364 Mont. at 399, 276 P.3d at 873. The failure of a judgment debtor to post a supersedeas bond “is not a bar to subsequent restitution.” 1 Restatement (Third) of Restitution and Unjust Enrichment § 18, comment c.

In this case, after this court issued its opinion in Davis II, the husband amended his counterclaim to “demand the return of the $50,000.00 in proceeds of the [settle-merit] check.” The husband, in essence, sought from the wife restitution of the proceeds from the settlement check.

“When a judgment is reversed on appeal, the general rule is that the party who received the benefit thereof must make restitution to the other party of money or property received. There is, however, no absolute right to restitution upon reversal. It is an equitable remedy which rests in the sound discretion of the trial court and is to be awarded within the ‘spirit and policy of the law to promote and compel, when there are not facts and circumstances which may render restitution inequitable.’ Maslankowski v. Carter, 291 Ala. 8, [11,] 277 So.2d 91[, 93] (1973) (quoting McCall v. McCurdy, 69 Ala. 65 [, 70] (1881)).”

St. Regis Paper Co. v. Kerlin, 476 So.2d 64, 66 (Ala. 1985). In Smith v. Smith, 928 So.2d 287, 294 (Ala. Civ. App. 2005), this court recognized that the party from whom restitution is being sought has the burden of showing that restitution would be inequitable. In Smith, after this court reversed the divorce judgment entered in that case, the husband in that case, on remand, sought, “in essence,” restitution from the wife in that case for the periodic-alimony payments that had been made pursuant to that divorce judgment. Id. This court held that, because the wife had not shown that restitution would be inequitable, the trial court in that case had erred in faffing to restore those payments to the husband. Id.

In this case, the husband argues on appeal that the trial court erred in awarding the wife the settlement cheek because it does not constitute marital property and that the trial court erred in failing to hold a hearing on his postjudgment motion on that issue. Those issues are not moot because, if the husband is correct, this court could reverse the 2016 divorce judgment and order restitution. Because this court can grant the husband effective relief, the appeal is not moot. Therefore, I respectfully dissent.

      . The husband is incarcerated in a federal prison in Kentucky and was unable to appear in person at the hearing. Therefore, his testimony was presented to the trial court through his deposition upon written questions.

      . The Black Farmers litigation involved a class action filed on behalf of African-American, farmers alleging that the United States Department of Agriculture had systematically discriminated against African-American farmers on the basis of race.

      . The husband asserts that the trial court did not have subject-matter jurisdiction to "divide” the settlement check as marital property because, he says, "it was impossible for the check to have been used during the marriage,” The basis for the husband’s argument is unclear. The trial court clearly had subject-matter jurisdiction to determine whether the settlement check was marital property. See § 30-2-l(a), Ala. Code 1975 ("The circuit court has power to divorce persons from the bonds of matrimony ....”), and §30-2-51(a), Ala, Code 1975 ("[T]he judge [presiding over a divorce action] may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties, during their marriage.”),


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    E.H. v. K.H.
    2150675
    Court of Civil Appeals of Alabama.
    Oct. 21, 2016

      Susan Walker of McDorman & Walker, Birmingham, for appellant.
    Tom L. Larkin of The Larkin Law Firm, P.C., Birmingham, for appellee.
   MOORE, Judge.

E.H. (“the mother”) appeals from a judgment of the Jefferson Juvenile Court (“the juvenile court”) that, among other things, awarded K.H. (“the father”) sole physical custody of the parties’ child, Et.H. (“the child). We dismiss the appeal.

Procedural History

In 2012, the mother and the father, who had previously been married, entered into a “custody/support agreement” in which they agreed, among other things, that they would share joint legal and physical custody of the child, alternating physical custody each week, and that each party would have additional “parenting time (visitation)” with the child as set forth in the agreement. The agreement also provided that neither party would pay child support to the other but that the father would pay to the mother $3,000 annually for “parental assistance.” The juvenile court entered a judgment on June 14, 2013, ratifying that agreement.

On November 17, 2014, the mother filed a petition for a rule nisi and for modification of the June 14, 2013, judgment; that action was assigned case no. CS-11-1282.02 (“the mother’s action”). In her petition, the mother asserted, among other things, that the father had failed to comply with the parties’ agreement; that the father was in arrears with regard to his annual $3,000 obligation in the amount of $2,750 plus interest; that the joint-custody arrangement was no longer in the child’s best interest and was no longer practicable because the child was about to start school; and that the father had refused to provide his address and telephone number to the mother and the parties were communicating only via electronic communications. The mother sought, among other things, sole physical custody of the child, reasonable visitation between the,-father and the child, reduction of the father’s arrearage to a judgment, an award of child support, and attorney’s fees.

The father filed an answer and a counterclaim to the mother’s petition on March 31, 2015, In his counterclaim, the father asserted, among other things, that the mother had withheld her address and telephone number from him, that joint custody was no longer in the child’s best interest, that' the mother had withheld his additional court-ordered “parenting time (visitation)” on occasion, and that the parties had been unable to communicate effectively regarding the parenting of the child. The father sought, among other things, sole physical custody of the child, an award of child support, and attorney’s fees. The record indicates that the father also filed a separate petition for modification of custody that had been assigned case no. CS-11-1282.03 (“the father’s action”).

On November 19, 2015, the juvenile court rendered a judgment (“the contempt judgment”) in the mother’s action, denying the mother’s petition for a rule nisi. The record on appeal also contains a separate judgment (“the custody judgment”) that was rendered by the juvenile court on November 19, 2015, in. the father’s action. In the custody judgment, the juvenile court notes that both the mother and the father were present and represented by counsel at a trial that was conducted on August 25, 2015, and that ore tenus testimony was presented. The custody judgment awards sole physical custody of the child to the father, requires the- mother to “pay child support per the guidelines,” and orders the mother to pay the father’s attorney’s fees “as filed.” On March 29,2016, the juvenile court’s contempt judgment was input into the State Judicial Information System (“SJIS”) under the case number assigned to .the mother’s action. See Rule 58, Ala. R. Civ. P. Although the contempt judgment adjudicated only the rule nisi claim raised by the mother, an entry on the case-action-summary sheet in the mother’s action dated March 29, 2016, states: “DISPOSED BY (SETTLED),” which is followed by an additional entry that states: “CUSTODY TO FATHER.”

On April 12, 2016, the mother, through new counsel, filed in the mother’s action a “motion to alter, amend or vacate” the contempt judgment; the juvenile court never ruled on that motion. The mother filed her notice of appeal on May 10, 2016. Her notice of appeal represents that the mother is appealing from a judgment entered on March 29, 2016, in case no. CS-11-1282.02.

Analysis

The mother raises three arguments in her brief on appeal: (1) whether the juvenile court erred in granting the father’s counterclaim and in modifying the child’s physical custody “without the Case Action Summary Sheet showing a trial occurred”; (2) whether the juvenile court erred in ordering the mother to pay “child support per the guidelines” despite the lack of child-support-guidelines forms in the record on appeal; and (3) whether the juvenile court erred in awarding the father attorney’s fees. Those issues arise solely from the custody judgment.

Initially, we question whether the juvenile court correctly entered the custody judgment in the mother’s action. As set out above, the caption in the custody judgment refers solely to the case number assigned to the father’s action. The mother argues that the juvenile court entered the custody judgment in the mother’s action by noting that judgment in the SJIS case-action-summary sheet on March 29, 2016. Rule 58, Ala. R. Civ. P., provides, among other things, that a judge may render a júdgment by making a notation in the court records, see Rule 58(a)(1) &'(4), Ala. R. Civ. P., and that a judgment is entered as of the date of the input of the judgment into the SJIS. Rule 58(c), Ala. R. Civ. P. The SJIS notation does indicate that the father received custody of the child,- which is consistent with the terms of the custody judgment. On the other hand, the notation indicates that the. mother’s action had been disposed of by settlement, contrary to the terms of the custody judgment. Thus, it is unclear whether the juvenile court intended by the notation to incorporate the custody judgment into the mother’s action. We need not definitively decide the point, however.

The contempt judgment addressed only the mother’s petition for a rule nisi. The notation of “CUSTODY TO FATHER” could be construed as a judgment awarding custody to the father, which would dispose of the parties’ competing custody claims, but that judgment did not adjudicate the father’s counterclaim for child support, among other claims. If the juvenile court did correctly enter the custody judgment in the mother’s action, the custody judgment fails to specify the amount of child support and attorney’s fees awarded. In Anderson v. Anderson, 899 So.2d 1008, 1009 (Ala. Civ. App. 2004), this court determined that, “[wjhere a party has requested child support and the trial court’s purported judgment contains no conclusive assessment of the child-support obligation, the trial court has not completely adjudicated the matters in controversy between the parties.” In Haynes v. Vassilik, 175 So.3d 620, 621 (Ala. Civ. App. 2015), this court determined that, because the trial court had ordered the appellant “to pay a ‘reasonable’ attorney fee” but there was no determination regarding the amount of the attorney’s fee, the judgment entered by the trial court was nonfinal for purposes of appeal.

“An appeal ordinarily lies only from a final judgment. Ala. Code 1975, § 12-22-2; Bean v. Craig, 557 So.2d 1249, 1253 (Ala. 1990). A judgment is generally not final unless all claims, or the rights or liabilities of all parties, have been decided. Ex parte Harris, 506 So.2d 1003, 1004 (Ala. Civ. App. 1987). The only exception to this rule of finality is when the trial court directs the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Bean, 557 So.2d at 1253.”

Laney v. Garmon, 25 So.3d 478, 480 (Ala. Civ. App. 2009). Under this court’s holdings in Anderson and Haynes, the juvenile court did not dispose of all the claims between the parties. The juvenile court also did not certify its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P, Thus, the record contains no final judgment from which an appeal will lie.

Based on the foregoing, we conclude that the juvenile court has not entered a final judgment in the mother’s action. Because a nonfinal judgment will not support an appeal, see Haynes, 175 So.3d at 621-22, we must dismiss this appeal.

APPEAL DISMISSED.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.

      . Based on our disposition of this appeal, we conclude that the mother’s motion was not a postjudgment motion under Rule 59, Ala. R, App. P.

      . We note that this case is governed by the Alabama Rules of Juvenile Procedure. Rule 1(A), Ala.. R, Juv. P., indicates that, if no procedure is provided by those rules, the Alabama Rules of Civil Procedure shall be applicable, Because the Alabama Rules of Juvenile -Procedure do not address the rendition and entry of orders and judgments, Rule 58, Ala. R. Ciy. P., is applicable, in the present case.


author: PITTMAN, Judge.

text:
    GREENWOOD BIBLE DELIVERANCE CHURCH, INC. v. Betty ARD and Irene Sonier
    2150732
    Court of Civil Appeals of Alabama.
    Oct. 21, 2016

      James G. Curenton, Jr., Fairhope, for appellant.
    D. Robert Stankoski, Jr., of Stankoski Myrick, LLC, Fairhope, for appellees.
   PITTMAN, Judge.

Greenwood Bible Deliverance Church, Inc., appeals from a summary judgment entered by the Baldwin Circuit Court in favor of Betty Ard and Irene Sonier. We reverse the trial court’s judgment and remand for further proceedings.

Procedural History and Material Facts

At some point before the mid-1950s, an unincorporated church group began wor-shipping under the name “Greenwood Bible Deliverance Church.” In November 1962, members of the church group filed a certificate of incorporation in the Baldwin Probate Court, forming a corporation identified as “Greenwood Bible Deliverance Church, Inc.” (“the 1962 corporation”), and naming three corporate trustees. It is not entirely clear when, but at some point around the time the 1962 corporation was formed, real property was donated and purchased for the church group’s use.

In 1994, 32 years after formation of the 1962 corporation, a document titled “Restated Articles of Incorporation of Greenwood Bible Deliverance Church, Inc.,” was filed in the Baldwin Probate Court (“the restated articles”). The restated articles identified the long-time pastor of the church group, Marie Harms, as “incorpo-rator.” After the restated articles had been filed, the Alabama Secretary of State’s Office began maintaining two sets of corporate records for entities identified as “Greenwood Bible Deliverance Church, Inc.” It has been argued by all parties in this matter that the restated articles filed in 1994 created a new and distinct corporate entity (“the 1994 corporation”).

In May 2012, Ard and Sonier filed a complaint naming the 1962 corporation as the sole defendant and” alleging that Ard and Sonier were members of the 1962 corporation. Ard and Sonier asserted in their complaint that the restated articles had been an ineffective attempt to amend the certificate of incorporation of the 1962 corporation because, Ard and Sonier asserted, statutory voting prerequisites to such an amendment had not been satisfied. Ard and Sonier also claimed that bylaws purportedly adopted in 1994 along with the restated articles were of no "effect. Thus, Ard and Sonier alleged, there was a dispute regarding “the proper documents which govern the church’s temporal affairs.” Ard and Sonier requested a judgment declaring that the restated articles and the bylaws were “void” and directing the 1962 corporation to elect new trustees;

In June 2012, a motion to dismiss was filed on behalf of “Greenwood Bible Deliverance Church, Inc.” Although it is not entirely clear, it appears that defense counsel filing that motion purported to represent the 1962 corporation, as opposed to the 1994 corporation.

Defense counsel asserted in the motion to dismiss that the 1962 corporation had been created for the sole purpose of holding title to the church building and the real property upon which it sits and that the members of the church group had remained an unincorporated association after the formation of the 1962 corporation. In support of that position, defense counsel pointed out that the 1962 corporation had been created pursuant to Title 10, Article 3, § 124 et seq., of the Alabama Code of 1940 (Recomp. 1958); § 126 of Article. 3 had provided, in, part:

“Corporations not of a business character created under this article, or created by special act of the legislature heretofore, may acquire, hold, administer, distribute or dispose of real and personal property, and may take, receive, and acquire property by gift, devise, or bequest, and hold, own, administer, use, distribute-and dispose-of such property for the advancement, promotion, extension, or maintenance of such causes and objects as may be. prescribed by the constitution and by-laws of such corporation, in conformity with all lawful conditions imposed by the donor, and may exercise such other powers as are incident to private corporations.”

(Emphasis added.) Relying on cases such as Blount v. Sixteenth St. Baptist Church, 206 Ala. 423, 426, 90 So. 602, 604 (1921), defense counsel asserted that the creation of the 1962 corporation “did not surrender any power of the congregation to the entity, except the right ‘to hold its property, convey or [ejncumber the same pursuant to the due authorization of its membership.’ ”

Defense counsel also argued that the restated articles had not been intended to amend the certificate of incorporation of the 1962 corporation but, rather, had created the allegedly separate and distinct 1994 corporation. According to the motion to dismiss, the 1994 corporation is made up of the members of the church group, who, the motion alleged, had been members of an unincorporated association until the formation of the 1994 corporation.

The motion to dismiss asserted further that, upon formation of the 1994 corporation, ownership of the property that had been held by the 1962 corporation, allegedly in trust for the members of the church group, had automatically vested in the 1994 corporation, Thus,, defense counsel asserted, the 1962 corporation no longer had a “legal purpose.”

■ Ard and Sonier filed a response to the motion to dismiss, in which they reasserted their original theory, namely, that, the restated articles had been an ineffective attempt to amend the certificate of incorporation of the 1962 corporation and were, therefore, void. In the alternative, Ard and Sonier asserted that, if the restated articles had formed a new corporation, then the 1962 corporation nevertheless still existed, still owned church property, arid should be allowed to elect new trustees. In their response to the motion to disiniss, Ard and Sonier described' the dispute as one over the intent o'f the restated articles and bylaws, over the existence of the 1962 corporation, and over ownership of church property.

In response to the argument that the 1962 corporation had beeri formed solely for the purpose of holding title to real property and had not resulted in the incorporation of the members of the church group, Ard and Sonier pointed to Title 10, Article 3, § 125 of the Alabama Code of 1940 (Recomp. 1958), which had provided:

“Such trustees [of a church desiring to incorporate pursuant to § 124] shall, within thirty days after their election, file in the office of the'judge of probate of the county in which the corporation is to exercise its functions, ■ or part of its functions, a certificate stating the corporate name selected, the names of the trustees, and the length of time for which they were elected; which certificate -shall be subscribed by them, and recorded. -The members of such society, their associates and successors are, from the filing of such certifícate, incorporated by the name therein specified.”

(Emphasis added.)’ Thus, Ard and Sonier asserted in their response to the motion to dismiss that the riiembers of the church group had not been an unincorporated association in 1994 when the restated articles were fíled and that the property held by the 1962 corporation had not vested in the 1994 corporation upon its creation.

The trial court promptly denied the motion to dismiss. Approximately one year later, in October 2013, Ard and Sonier filed a motion for a summary judgment, In that motion, Ard and Sonier again asserted the alternative theories they had argued in response to' the motion to dismiss, and they requested the trial court to enter a judgment declaring that the restated articles and bylaws were void, that the 1962 corporation owned the real property on which the church building sits, and that the 1994 corporation had no interest in that property, Ard and Sonier also asked the trial court to direct the 1962 corporation to elect new trustees.

In November 2013, before the trial court had ruled on the summary-judgment motion, Ard and Sonier filed a motion for leave to amend their complaint, along with a proposed amended complaint. The proposed amended complaint specifically-named the 1994 corporation as a defendant and specifically asserted the theory that, if the restated articles had formed a new corporation, the 1962 corporation nevertheless still owned the property in question. The proposed amended complaint described the dispute as one over “ownership of the real property on which the [church building] sits” and the “identity of the person or persons with the authority to govern the 1962 corporation.” The proposed amended complaint requested essentially the same relief that had been requested in Ard and Sonier’s summary-judgment motion, i.e., a declaration that the restated articles and bylaws were void, a declaration that the 1962 corporation owns the real property on which the church building sits, a declaration that the 1994 corporation has no interest in that property, and a mandate to the 1962 corporation to elect new trustees.

Counsel purporting to represent “Defendant, Greenwood Bible Deliverance Church, Inc.,” filed an objection to Ard and Sonier’s motion for leave to amend their complaint, asserting that the proposed amendment “substantially changes the substance of the facts alleged and the relief requested” and “would require additional discovery not contemplated up until this time, causing actual prejudice and delay.” Defense counsel also filed a response to Ard and Sonier’s motion for a summary judgment, in which counsel addressed the merits of both theories asserted in that motion. In February 2014, the trial court entered an order granting Ard and Sonier’s motion for leave to amend their complaint.

Approximately one month later, the trial court entered an order granting Ard and Sonier’s motion for a summary judgment. The trial court stated in its order that the 1962 corporation “was properly incorporated and properly received fee simple title to all of the real property on which the Church building sits.” Without explanation, the trial court also stated that its previous order granting Ard and Sonier leave to amend the complaint was moot and, therefore, vacated. Thereafter, defense counsel filed a notice of appeal on behalf of “Greenwood Bible Deliverance Church, Inc.” This court dismissed that appeal as having been taken from a nonfinal judgment. See Greenwood Bible Deliverance Church, Inc. v. Ard, 177 So.3d 894 (Ala. Civ. App. 2015).

Shortly after dismissal of the appeal, Ard and Sonier filed a “motion to add party-plaintiff,” in which they requested the trial court to set a status conference and to “allow the addition of a party, to-wit: the 1962 Greenwood Bible Deliverance Church, Inc.,” as a plaintiff in the action. Ard and Sonier asserted that “this lawsuit is now squarely between the 1962 Church and the 1994 non-profit corporation over corporate records and property rights” and that, “[i]n order to afford complete relief to all current parties, the 1962 Church should be named as a party-plaintiff in this lawsuit.” Counsel for “Greenwood Bible Deliverance Church, Inc.,” filed a response, pointing out that Ard and So-nier’s original complaint had named only the 1962 corporation as a defendant and asserting that Ard and Sonier had yet to sue the 1994 corporation. Ard and Sonier did not ask the trial court to reconsider its decision to vacate its earlier order granting Ard and Sonier leave to file an amended complaint. The record contains to ruling on Ard and Sonier’s motion to add party-plaintiff.

In August 2015, defense counsel representing “Greenwood Bible Deliverance Church, Inc.,” filed a motion for a summary judgment, which argued, among other things, that Ard and Sonier had abandoned their theory that the restated articles had been an ineffective attempt to amend the certificate of incorporation of the 1962 corporation and were, therefore, void. Defense counsel also reminded the trial court that it had vacated its earlier order granting Ard and Sonier leave to amend their complaint. Finally, defense counsel asserted that, because Ard and Sonier’s only pleaded theory allegedly had been abandoned, and because Ard and Sonier had not pleaded any other theory supporting their assertion that a dispute existed as to the governance of church affairs, summary judgment was due to be entered.

The trial court entered an order denying the motion for a summary judgment. The trial court also entered a judgment amending its previous summary judgment in favor of Ard and Sonier. In that amended summary judgment, the trial court ruled that the restated articles were void and that “the 1962 corporation still exists and therefore still owns the property.” Alternatively, the trial court ruled that, “if the 1994 [restated] articles created a new corporation, ... it did not have the authority to receive the automatic vesting of the new property into ownership of the corporation.” A notice of appeal was timely filed on behalf of “Greenwood Bible Deliverance Church, Inc.” Our supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Standard of Review

Our supreme court has recognized the following standard of review applicable to a summary judgment:

“We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Jefferson County Comm’n v. ECO Preservation Services, L.L.C., 788 So.2d 121 (Ala. 2000) (quoting Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala. 1988)). Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmov-ant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989). ‘Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala. 1989). In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw. Jefferson County Comm’n v. ECO Preservation Servs., L.L.C., supra (citing Renfro v. Georgia Power Co., 604 So.2d 408 (Ala. 1992)).”

Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala. 2000).

Discussion

The record on appeal and the appellant’s brief to this court certainly could be clearer in identifying the defendant that appeared in the action below and in identifying the appellant before this court. That said, arguments made by defense counsel below and by appellant’s counsel before this court suggest that, despite representatives of the 1994 corporation having knowledge of this litigation, the 1994 corporation has not formally appeared, The appellant’s reply brief to this court asserts that representatives of the 1994 corporation'retained defense counsel to appear in the action to defend .the 1962 corporation, and it has been argued repeatedly that Ard and Sonier’s original complaint named only the .1962 corporation.as a defendant. Thus, for purposes of this opinion, we conclude that the 1962 corporation is the entity that appeared as the defendant below and has appeared as the appellant.

As noted, in their motion for a summary judgment, Ard and Sonier requested a declaration that the restated articles had been an ineffective attempt to amend the certificate of incorporation of the 1962 corporation. In support of that argument, Ard and Sonier pointed to a provision of Alabama nonprofit-corporation law that was in effect in 1994 when the restated articles were filed, which Ard and Sonier claimed required an amendment to be approved by “a majority of the members of the corporation.” Ard and Sonier asserted that, if a corporation “fails to amend' its articles of incorporation in the manner prescribed by statute, then the purported amendment is void.”

In support of their suggestion that the restated articles had been intended to amend the certificate of incorporation of the 1962 corporation, Ard and Sonier relied on a copy of what appears to be the minutes of a board-of-directors meeting held in 1992, which, according to Ard and Sonier, indicated that the board of directors of the 1962 corporation had “decided to have ‘the Church incorporation papers updated.’”• Ard and Sonier also pointed out that the preamble to the restated articles stated that the board of directors “were ‘desirous of restating [the church’s] articles of incorporation under the laws of the State of Alabama.’ ”

Ard and Sonier acknowledged, however, that, in 1994, “the ‘Board of Directors’ [had] approved the adoption of a ‘[resolution Authorizing Incorporation and the Bylaws of the Greenwood Bible Deliverance Church’ ” and that the “ ‘[Resolution’ state[d], in part, that ‘Greenwood Bible Deliverance Church [will] file Articles of Incorporation under the provisions of the Alabama Nonprofit Corporation Act.’ ” (Emphasis added.) Consistently, the restated articles themselves indicate that they had been filed pursuant to the Nonprofit Corporation Act. Ard and Sonier conceded in their summary-judgment motion that the 1962 corporation had not been formed under the Nonprofit Corporation Act but was, rather, a “special purpose entity” that had been created pursuant to Title 10, Article 3, § 124 et seq., of the Alabama Code of 1940 (Recomp. 1968). Thus, Ard and Sonier’s own allegations suggested that the restated articles were not intended simply to amend the certificate of incorporation of the 1962 corporation but, rather, were intended to create a new corporation under the Nonprofit Corporation Act.

Even assuming that the restated articles were subjectively intended as an amendment to the certificate of incorporation of the 1962 corporation and that the restated articles were not effective in doing so, Ard and Sonier have not argued that the restate articles could not, nevertheless, create a new corporation under nonprofit corporation statutes. Indeed, Ard and Sonier expressly conceded in their summary-judgment motion, like they did in their brief to this court in the prior appeal, that the filing of the restated articles had “resulted in the creation of a new non-profit entity.” In their most recent appellees’ brief to this court, Ard and Sonier do not seriously contend that the restated articles or the bylaws are void. Rather, they rely primarily on the argument that the restated articles created the 1994 corporation but did not result in the .automatic vesting of .ownership of church property in that corporation. Based on all the circumstances, we must disagree with the trial court’s conclusion that Ard and Sonier demonstrated that they were entitled to a summary judgment declaring that the restated articles and the bylaws were “void.”

The 1962 corporation asserts that Ard and Sonier have pleaded only one theory allegedly showing the existence of a justiciable controversy, namely, that there is a dispute over governance of the church’s temporal affairs because the restated articles and bylaws are void. The 1962 corporation takes the position that Ard and Sonier cannot maintain a declaratory-judgment claim based on an unpleaded dispute over church property and an unpleaded theory that, although the restated articles created a. new corporation, there has been no transfer of church property to that corporation.

In Ex parte Burr & Forman, LLP, 5 So.3d 557 (Ala. 2008), our supreme court considered the scope of a declaratory-judgment complaint in a dispute over legal fees between law firms that had associated with one another for the purposes of pursuing mass-tort litigation. Our supreme court held that the complaint, which.-had generally described the facts underlying the dispute over legal fees, was based on contractual-based theories and was not sufficient to raise tort-based theories for recovery. .The court noted that, “ ‘[although the Alabama Rules of Civil Procedure have established notice pleading, ,.. a pleading must give fair notice, of the claim against which the defendant is called to defend.’ ” 5 So.3d at 566 (quoting Archie v. Enterprise Hosp. & Nursing Home, 508 So.2d 693, 696 (Ala. 1987)). The court also recognized that “ ‘[fit is not the duty of the courts to create a claim which thé plaintiff has. not spelled out in the pleadings.’ McCullough v. Alabama By-Prods. Corp., 343 So.2d 508, 510 (Ala. 1977).” Id The court concluded that, “[e]ven under notice pleading, the allegations of- the complaint simply cannot be construed as asserting claims sounding in tort” and that “[t]hé trial court’s purported use of the record ... to determine what claims were being asserted by the plaintiffs was inappropriate.” 5 So.3d at 567. See also Williams v. Wells Fargo Bank, N.A., 218 So.3d 816 (Ala. Civ. App. 2016) (holding that, upon' appellate review of a summary judgment in favor of a plaintiff, a counterclaimant could not recover on a breach-of-contract counterclaim that was based on ,a .particular theory, different from the breach-of-contract theory that had been alleged in the counterclaim).

In the present case, Ard and Sonier’s original complaint simply did not assert that the restated articles had created a new corporation, that there was a dispute over church property, that church property had not been transferred to the 1994 corporation, and that Ard and Sonier were entitled to a judgment declaring that the 1962 corporation still owned church property. Thus, a summary judgment in favor of Ard and Sonier was rendered on a declaratory-judgment claim that has not been formally pleaded.

Ard and Sonier correctly point out that the unpleaded theory and the dispute over church property was raised by other filings in this matter, such as the motion to dismiss, Ard and Sonier’s response thereto, and Ard and Sonier’s summary-judgment motion. We are unaware, however, of authority indicating that a complaint may be deemed amended by such filings. See Kendrick v. Lewis, 88 So.3d 899, 906-07 (Ala. Civ. App. 2012) (indicating that a defendant’s reference, made in an answer and a motion for a summary judgment, to an unpleaded claim of wantonness did not “activate” such a claim or mean that such a claim had been tried by the consent of the parties pursuant to Rule 15(b), Ala. R. Civ. P.); and Fleming v. Dowdell, 434 F.Supp.2d 1138, 1148 n.9 (M.D. Ala. 2005) (“A complaint may not be amended by briefs in opposition to a motion to dismiss or motion for summary judgment .... ”). Cf. Rector v. Better Houses, Inc., 820 So.2d 75, 78-79 (Ala. 2001) (indicating that a defendant could not rely on an affirmative defense that had been briefed by the defendant and the plaintiff at the summary-judgment stage but had not been pleaded in the defendant’s answer). We also note that, notwithstanding Ard and Sonier’s assertion to the contrary on appeal, it appears to this court that neither the 1994 corporation, nor any of its purported representatives, have been made defendants in this case or have formally appeared as the parties that should have been sued.

Conclusion

Ard and Sonier did not demonstrate that they were entitled to a summary judgment declaring that the restated articles and the bylaws are void, and we are constrained to conclude that Ard and Sonier were not entitled to a summary judgment based on the unpleaded theory. We note, however, that, because the trial court vacated its order granting Ard and Sonier’s motion for leave to amend their complaint, there is no effective ruling on that motion in the record, and we express no opinion on whether Ard and Sonier would be entitled to such leave upon remand. We reverse the trial court’s judgment and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Thompson, P.J., and Thomas, Moore, and Donaldson, JJ., concur.

      . The record indicates that Sonier’s father, Percy Silcox, donated some of the real property to the church group.

      . There has been no argument in the trial court or before this court that the 1994 corporation cannot validly exist as an independent entity because it has the same corporate name as the 1962 corporation, and this court expresses no opinion on that issue.

      . We note that the appellant’s brief to this court asserts that, after commencement of this litigation, the 1994 corporation “reincorporated to add the word ‘Reformed’ to the name,” apparently to clarify matters. It is not clear from the record whether that “reincorporation’’ was simply a name change or, rather, created yet a third entity. For purposes of this appeal, the court will continue to refer to the corporation allegedly created by the restated:articles in 1994 as “the 1994 corporation.”

      . We note that, although the bylaws purportedly adopted by the 1994 corporation provided that all church property "shall be deeded ’ to the Church and held in its Corporate name with signature of the President and the Secretary,” it appears undisputed that there is no deed purporting to transfer ownership of property from the 1962 corporation to the 1994 corporation.

      ; Rule 15(a); Ala. R. Civ. P., requires a party to obtain leave of court before amending a pleading less than 42 days before the first date set for trial. It is undisputed.that that rule required Ard and Sonier to obtain leave to amend their complaint.

      . It is not clear what the trial court meant by “new” property.

      . Ard and Sonier provided a citation to former § 10-3A-81, Ala. Code 1975, which was a statutory provision applicable to nonprofit corporations in 1994. We note that that Code provision required an amendment to a nonprofit corporation's articles of incorporation to be approved by two-thirds of the "members entitled to vote thereon” and that, if there were no members entitled to vote, an amendment could be approved by a majority vote of a board of directors. Former § 10-3A-81(a). Finally, we note that there was a separate statutory scheme applicable to "special purpose entities,” which the parties have indicated the 1962 corporation was. That statutory scheme included former § 10-1-3, Ala. Code 1975, which governed amendments to the "charters” of corporations "not of a business character." See also § 10A-20-12.01, Ala. Code 1975.

      . We also note that, as the 1962 corporation points out, Ard and Sonier conceded in their appellees’ brief to this court in the prior appeal that the restated articles had created the separate and distinct 1994 corporation and that Ard and Sonier .had "assumed incorrectly" that the restated articles were intended to amend the original certificate of incorporation of the 1962 corporation.

      . We also express no opinion on the validity of the election of Ard and Sonier as new trustees of the 1962 corporation.

      . We note here that, at the end of its appellant's brief to this court, the 1962 corporation asserts that Ard and Sonier do not have "a real, tangible legal interest in the subject matter of the lawsuit,” an argument the 1962 corporation couches in terms of "standing.” The record, however, indicates that both Ard and Sonier claim to be members of the 1962 corporation, and this court is not persuaded by the assertion that they do not have a real and tangible interest in the subject matter of this action. We also conclude that it is unnec-essaiy to consider the 1962 corporation's es-toppel argument and that its statute-of-limitations argument is unpersuasive.


author: WELCH, Judge.

text:
    STATE of Alabama v. Demetrius Raishad WATSON
    CR-15-0211
    Court of Criminal Appeals of Alabama.
    Sept. 9, 2016
    Certiorari Denied Oct. 14, 2016
    Alabama Supreme Court 1151289
    Luther Strange, atty. gen., and John M. Porter, asst. atty. gen., for appellant.
    Richard Stephen Jaffe and Brett Heath Knight, Birmingham, for appellee.
   WELCH, Judge.

The State of Alabama appeals from the trial court’s pretrial determination that Demetrius Raishad Watson was entitled to immunity from prosecution for the murder of Lisa Langston, a violation of § 13A-6-2(a)(1), Ala. Code 1975.

The pertinent facts are in the trial judge’s order set forth below. A summary of the facts discloses that at approximately 6;00 p.m. on December 5, 2013, Watson’s frightened female cousin, Datrial Allen-Cathey, summoned him to come to her home because a female stranger, the victim, Lisa Langston, appeared to be having some type of psychotic episode in Cathey’s yard. Watson, armed with a pistol, immediately went to Cathey’s residence, where he encountered Langston in the yard. He did not know Langston. Langston was foaming at the mouth and barking like a dog. She immediately accused Watson of killing her baby and charged toward him, exclaiming that she intended to kill him. Langston was “fidgeting” with something at her waist as she charged toward'Watson. Watson fired once into the ground to scare Langston, but she shouted that she was not afraid of guns and continued to rush toward Watson.' Watson fired a second time striking Langston in her arm. However, the bullet traveled into her body striking her lung. She died of the gunshot wound.

On May 8, 2014, Watson was indicted for Langston’s murder. On October 9, 2014, Watson filed a motion to dismiss the indictment, arguing that pursuant to § 13A-3—23(d), Ala. Code 1975, he was entitled to immunity from prosecution because his use of deadly physical force was justified under the circumstances and, thus, lawful. Section 13A-3-23, Ala. Code 1975, provides, in relevant part:

“(a) A person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he or she may use a degree of force which he or she reasonably believes to be necessary for the purpose. A, person may use deadly physical force ... if the person reasonably believes that another person is:
“(1) Using or about' to use unlawful deadly physical force,
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“(3) Committing or about' to commit a[n] .,. assault in the first ór second degree ....
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“(b) A person who is justified under subsection (a) in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and, is in any place where he or she has the right to be has no |iuty to retreat and has the right to stand his or her ground.
“(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force if:
“(1) With intent to cause physical injury or death to another person, he or she provoked the use of unlawful physical force by such other person,
“(2) He or she was the initial aggressor, except that his or her use of physical force upon another person under the circumstances is justifiable if he or she withdraws from the encounter and effectively communicates to the other person his or her intent to do so, but the latter person nevertheless continues or threatens the use of unlawful physical force.
“(3) The physical force involved was the product of a combat by agreement not specifically authorized by.law.
“(d) A person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.”

On October 6, 2015, a hearing was conducted on Watson’s request for immunity from prosecution, Following the hearing and the receipt of posthearing briefs, the trial court entered the following order granting Watson immunity from prosecution:

“This matter is before the Court on [Watson’s] Motion to Dismiss the Indictment pursuant to the provisions of Section 13A-3-23(d) of the Alabama Criminal Code. This Court conducted an evidentiary hearing on this motion on October 6, 2015. The following witnesses appeared before the court and.provided testimony in this matter: Joshua Watson, Datrial Allen-Cathey, Demetrius Watson, [and] Shelby County Deputy Sheriff John Shearon. Having considered the pleadings, the testimony of witnesses presented by the State of Alabama and [Watson] defendant, the evidence presented during the hearing, together with the argument of counsel and the briefs submitted by the parties, the Court makes the following findings of facts and conclusions of law:
“FINDINGS OF FACTS
“First, this Honorable Court heard the testimony of Mr. Joshua Watson, the brother of Demetrius Watson. Joshua testified that on the night of December 5, 2013, he, along with his girlfriend, was traveling down Highway 31 in Calera, AL when they observed a train stopped at the entrance of Slab Hill Road. Joshua testified that [he] observed an unknown woman, later identified to be Mrs. Lisa Langston, pulled over on the side of the road (at the intersection of Highway 31 and Slab- Hill Road). As he drove closer to Mrs. Langston’s truck, Joshua testified that it appeared she was beating something in the back of the truck. Joshua testified that he proceeded to turn onto 'Slab Hill Road and observed Mrs. Langston hysterically screaming for someone named Haley and acting very erratic. Joshua testified that while he attempted to speak to Mrs. Langston, she acted as if she never saw him and appeared to ‘stare right through him.’ Joshua then observed Mrs. Langston leave her truck (with the driver side door still open) and head to the stopped train. Joshua then testified that he observed Mrs. Langston crawl underneath the train, stumble several times, and then proceed down Slab Hill Road toward his families’ property. Out of concern for the safety of his family, including several young children who often play outside, Joshua testified that he contacted his family by phone and to warn them and described Mrs. Lang-ston’s erratic behavior.
“Moments later, and almost 600 feet from the stopped train, Mrs. Langston arrived at the doorstep of Mrs. Datrial Allen-Cathey, the cousin of [Watson]. Mrs. Cathey testified that she had just returned home from a chemotherapy appointment and that it had started to turn dark. Mrs. Cathey testified that [she], her three children (ages 13, 11, and 8), Melissa Thomas and Connie Baker, were at home when they heard noise and loud knocks on the door. Ms. Cathey testified that she and Ms. Thomas went to the door and observed Mrs. Langston acting alarmingly erratic and repeatedly screaming that ‘[her] husband killed [her] daughter’ and .that her daughter was hung in a tree.behind Mrs.-Cathey’s house.
..“Mrs. Cathey testified that because they could not calm Mrs. Langston down and that her behavior was. frightening her and her children, she called [Watson] and told him to come and help immediately. Mrs. Cathey testified that once [Watson] arrived, Mrs. Langston took off after him while hysterically screaming, “You killed my baby, you killed my baby.’ Ms. Cathey also testified that, at one point, [Mrs. Langston] broke through a wooden fence in order to charge towards [Watson]. She testified that [Watson] attempted numerous times to calm Mrs. Langston down, but to no avail. At this time, Mrs. Cathey called 911 and explained to the dispatcher that an unknown woman was at her house, going crazy, rolling around in the yard, scaring her and her kids, and yelling that her husband had killed her daughter. While still on the phone with the 911 dispatcher, Mrs. Cathey observed Mrs. Langston charge at [Watson], Mrs. Cathey then testified that [Watson] fired a warning shot into the ground, but that Mrs. Langston kept advancing onto [Watson] and screamed, ‘I am not scared of any gun’ and continued rushing towards him. [Watson] then shot once more.
“[Watson] next testified. Upon arriving at Mrs. Cathey’s house, [Watson] testified that he observed an unknown woman foaming at' the mouth, on all fours, and constantly rolling back and forth on the ground. [Watson] testified that he repeatedly and calmly requested Mrs. Langston to leave their property numerous times, but that Mrs. Langston refused. Instead, Mrs. Langston began to hysterically scream at [Watson] that he was the one who, in fact, had killed her daughter and that she was going to kill him. Mrs. Langston then began to advance towards [Watson]. [Watson] testified that he immediately warned her that he was armed and to stop. Mrs. Langston disregarded this warning and kept charging towards • him. [Watson] then pulled out his pistol, -[for] which he has a valid permit, and fired a warning shot into the ground.
“However, in spite of this second warning to stop, Mrs.' Langston screamed that a gun did not scare her and kept advancing towards [Watson] while still threatening to kill him. Mrs. Langston was fidgeting around her waist with her hands. Mrs. Langston then attempted to attack [Watson]. Due to Mrs. Langston’s constant fidgeting around her waist as well ■ as it being dark, [Watson] testified that he had no way of knowing if Mrs. Langston had a weapon. At this time, [Watson] testified that he fired an additional shot in order to protect himself and his family. The 911 tape shows that.within three sec- ’ onds or so from the warning shot, [Watson] fired this second shot hitting her in the arm.
“[Watson] testified that he immediately told everyone to get inside. He then took the phone from Mrs. Cathey in order to speak to the 911 dispatcher. During this conversation as well as the ensuing interview with the lead detective, [Watson] explained that Mrs. Lang-ston threatened to kill him, initially grabbed him, and kept coming at him. [Watson] testified that he was scared for his life and that he had no , other choice as it was necessary in order to protect himself and his family.
“Sheriff John Shear on, the lead detective on the case, testified in response to a question posed by [Watson’s] attorney that he had nothing to dispute that [Watson] feared for his life and that he was acting in self-defense at the time of the incident.
“Included in the exhibits provided to this Court were the psychiatric records of Mrs. Lisa Langston, an autopsy report, and toxicology report. Found within these records are proof that Mrs. Langston had been previously diagnosed with a bi-polar disorder as well as depression and that she was currently prescribed numerous medications in order to curb the effects of this disorder. The autopsy report showed that the time of Mrs. Langston’s death, she was approximately 5'2" and weighed 172 lbs. The toxicology reports showed the following medications found in Mrs. Langston’s system, (1) Doxepin; (2) Xanax; (3) Se-roquel; and (4) Bupropion. In addition to this medication, Mrs. Langston had a 0.18 BAC[, blood alcohol content,] at the time of her death.
“LEGAL ANALYSIS
“In 2005, the Florida State Legislature passed what has become known as the ‘Stand-your-Ground’ law. Approximately twenty-four (24) states have followed the lead of Florida in passing similar laws. In 2006, Alabama became one of these twenty-four states when the new self-defense law took effect, creating a presumption that citizens are justified in using self-defense when they believe someone has unlawfully entered their dwelling, as well as authorizing citizens to stand their ground when attacked anywhere outside the home where they have a right to be.
“The amended Alabama Code Sections dealing with self-defense essentially changed the law in three major ways.
“1) A presumption was created for a person, using deadly force who has a reasonable belief that another person is: (a) using or about to use unlawful deadly physical force; (b) using or about to use physical force against an occupant of a dwelling while committing or attempting to commit a burglary of such dwelling, (c) committing or about to commit a kidnapping in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree, forcible rape, or forcible sodomy. See § 13A-3-23(a), Ala. Code 1975;
“2) A person attacked where he or she has a right to be and who is not engaged in an unlawful activity may ‘stand his or her ground’ and use deadly force without any duty to retreat. See § 13A-3-23(b), Ala. Code 1975; and
“3) A person employing the use of deadly force in self-defense or as justified by law is now immune from criminal prosecution or civil liability and should not be arrested absent a determination that the force used was unlawful. See §§ 13A-3-23(d) & (e), Ala. Code 1975.
“Therefore, a person meeting the requirements of Ala. Code [1975,] § 13A-3—23(a), is exempt and free from the burden of criminal prosecution or civil litigation. Accordingly, Ala. Code [1975,] § 13A-3-23(d), provides not just a defense at trial but a bar to trial. This Court has found one Alabama case concerning the processes and procedures for invoking and adjudicating such statutory immunity. State of Alabama v. Robert Allen Carleton, 114 So.3d 165 (Ala.Crim.App.2011) (affirmed without opinion). Additionally, the Court has also looked at other jurisdictions for guidance. Multiple state appellate courts, from jurisdictions with similar copycat ‘Stand-your-Ground’ legislation, have addressed similar statutory silence and have judicially established certain procedures. Each state appellate court, which has reviewed and addressed ‘Stand-your-Ground’ -type immunity claims, has determined that the accused has a right to a pre-trial evidentiary hearing to adjudicate the accused[’s] entitlement to the statutory immunity. This Court has relied upon the legal analysis of other jurisdictions-in establishing the procedure utilized by the Court in this case.
“Colorado appellate courts were the first to address the entitlement to a hearing and the procedures thereto. In People v. Guenther, 740 P.2d 971, 975 (Colo.1987), interpreting their ‘Stand-your-Ground’ statute, the Supreme Court of Colorado found as follows: ‘In accordance with the plain meaning of these terms, the phrase “shall be immune from 'criminal prosecution” can only be construed to mean that the statute was intended to bar criminal proceedings against a person for the use of force under the circumstances set forth in subsection (2) of section 18-1-704.5.’ In the silence of statutorily delineated procedures, that Guenther Court proceeded to find that their ‘Stand-your-Ground’ statute: confers authority on a court to conduct a pretrial hearing on whether the statutory conditions-for immunity from prosecution have been established and, if so established, to dismiss the criminal charges.
“Following the reasoning of the Guen-ther Court, the’ District Court of Appeals of Florida also found the right of the accused to an evidentiary pre-trial hearing on the claims of statutory immunity, pursuant to the Florida ‘Stand-your-Ground’ law. After analyzing their ‘Stand-your-Ground’ statute, this Florida intermediate appellate court declared: ‘[T]he wording selected by our Legislature makes clear that it intended to establish a true immunity and not merely. an affirmative defense.’ Peterson v. State, 983 So.2d 27, 29 (Fla.Dist.Ct.App.2008). Therefore, the Court held, ‘[[likewise, we hold that a defendant may raise the question- of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether [Watson] has shown by a preponderance of the evidence that the immunity attaches.’ Id. These Courts imposed the same burden of proof as [they] would in motions for post-conviction relief or motions to suppress. Id. See also McDaniel v. Florida, 24 So.3d 654 (2010); Horn v. Florida, 17 So.3d 836 (2009). Based upon the witness testimony and the evidence offered during the evidentiary hearing, as well as all of the above, this Court makes the following findings of fact and conclusions of law:
“1. The events of December 5, 2013, occurred in an isolated neighborhood in rural Shelby County, in the dark of night, and after [Watson received] a call from his brother about an erratically behaving woman approaching his property.
“2. [Watson] encountered an unknown woman on all fours, rolling around on the ground, and acting very erratie[ally].
“3. [Watson] calmly and repeatedly tried to get the woman to leave the property without success.
' “4. The woman rushed towards [Watson] screaming that 'she was going to kill him.
“5. [Watson] was in possession of his gun, which he has a license to carry, for his safety as well as his family’s, safety.
“6. [Watson] warned the woman that he was armed and [that] she needed to stop.
“7. She refused and instead threatened to kill him and charged toward him.
“8. She continued to aggressively approach him and threatened to kill [Watson] even after he fired a warning shot towards the ground.
■ “9. Scared for his life as well as his family’s, [Watson] had to make a split-second decision and fired a second shot at her.
“10. [Watson] testified -dearly he had no other choice.
“11. [Watson] had no criminal history and was honorably discharged from the Marines.
“12. There was no evidence that [Watson] had any animosity toward Ms. Langston [and] that he was motivated by anything other than reasonable fear of serious bodily harm to himself or others present.
“It is this Court’s findings that [Watson] reasonably perceived that this could have resulted in great bodily harm or death to him or a family member. For this reason, [Watson’s] use of force is protected and immunized by the statute as he had the right to .be present; was free from fault, and had the right to defend himself and others from serious bodily harm or death.
“The Court finds by a preponderance of the evidence, that [Watson] has met his burden of proving that he is entitled to the immunity provisions of Alabama Code 13A-3-23(d) and (e).
“THEREFORE, IT IS ORDERED AND DECREED [Watson’s] Motion to Dismiss the indictment is hereby granted and the indictment is hereby dismissed with prejudice.”

(Capitalization in original.)(Vol. 1, CR. 145-153.)

On November 19, 2015, the State filed a notice of appeal. See Rule 15.’7, Ala. R. Crim. P. (regarding' a pretrial appeal by the State).

The State contends bn appeal, as it did in its posthearing brief to the circuit court, that there was insufficient evidence 'presented at the immunity hearing⅛to establish by a preponderance of the evidence that Watson was justified in using deadly force. The State asserts that- “[although the circumstances [] faced by Watson were disturbing, the evidence at the pretrial immunity hearing failed to establish that his use of deadly force., against Lisa Langston was justified.” (State’s brief, p. 11.) Moreover, the State contends that the evidence was insufficient because Watson was armed with a pistol when he approached Langston; thus, the State argues, he was not free from fault in creating a dangerous situation and cannot prevail on an. assertion that he acted in self-defense. The State further contends that the evidence was insufficient because Watson had no reason to suspect that Langston possessed a deadly weapon; thus, his use of a deadly weapon was not justified. Finally, the State argues that the evidence was insufficient because, it argues, Watson claimed both that the shooting was an unintentional accident and that it was an intentional act of self-defense. The State asserts that the two defenses cannot coexist.

“ “When evidence is presented ore ten-us to the trial court, the court’s findings of fact based on that evidence are presumed to be correct,’ Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994); ‘[w]e indulge a presumption that the trial court properly ruled on the weight and probative force of the evidence,’ Bradley v. State, 494 So.2d 750, 761 (Ala.Crim.App.1985), aff'd, 494 So.2d 772 (Ala.1986); and we make ‘ “all the reasonable inferences and credibility choices supportive of the decision of the trial court.”’ Kennedy v. State, 640 So.2d 22, 26 (Ala.Crim.App.1993), quoting Bradley, 494 So.2d at 761.”

State v. Hargett, 935 So.2d 1200, 1203 (Ala.Crim.App.2005).

Contrary to the State’s assertion, the record validates the trial court’s finding that the preponderance of the evidence was in favor of granting Watson immunity from prosecution. “Under the ore tenus rule, the trial court’s findings of fact are presumed correct and will not be disturbed on appeal unless these findings are ‘plainly or palpably wrong or against the preponderance of the evidence.’ ” Shealy v. Golden, 897 So.2d 268, 271 (Ala.2004)(quoting Ex parte Cater, 772 So.2d 1117, 1119 (Ala.2000)). The trial court’s factual findings in favor of Watson are supported by the record. “Absent a gross abuse of discretion, a trial court’s resolution of [conflicts in the testimony or credibility of witnesses] should not be reversed on appeal.” Sheely v. State, 629 So.2d 23, 29 (Ala.Crim.App.1993)(citations omitted). This Court can find nothing in the record to justify a reversal of the trial court’s ruling granting immunity and dismissing the indictment.

Accordingly, the trial court’s judgment is affirmed.

AFFIRMED.

Windom, P.J., and Kellum, Burke, and Joiner, JJ., concur.

      . Initially, the State contended on appeal that the trial court applied the wrong standard of proof. However, the State withdrew and abandoned that claim in its reply brief.

      . The State asserts on appeal that Langston’s conduct was "obviously .., some kind of psychotic episode," but the State argues that her conduct did not place Watson in imminent peril, or pose a life-threatening risk to Watson or a threat of serious physical injury to Watson, and moreover, Watson did not know if Langston was armed with a deadly weapon. (State's brief, p. 14.).,

      .Watson did not testify that firing the second gunshot was an unintentional accident. Watson testified that he deliberately fired the second shot because he “was just fearing for [his] life so [he] shot in [Langston’s] direction.” (Vol. 3, R. 60.) He testified regarding the second shot that he was ”[n]ot aiming, [he] just shot.” (Vol. 3, R. 60.) Watson stated that he was trying to shoot close to her and that the bullet striking her was a “mistake.” (Vol. 3, R. 61.) Watson did not defend the shooting on the ground that it was an accidental shooting.

      . We note that the procedure used by the Shelby Circuit Court in this case is consistent with the procedure outlined by this Court in decisions such as Harrison v. State, 203 So.3d 126 (Ala.Crim.App.2015), and Malone v. State, 203 So. 3d 126 (Ala.Crim.App.2016), which were issued after the circuit court had issued its order dismissing the indictment in Watson’s case.