text:
    Buddy GILES and Sherri Giles v. Hank BLACKMON.
    2150430.
    Court of Civil Appeals of Alabama.
    Aug. 26, 2016.

      H. Arthur Edge III and Hunter C. Sar-tin of H. Arthur Edge III, P.C., Birmingham, for appellants.
   MOORE, Judge.

Buddy Giles and Sherri Giles appeal from a judgment entered by the Bessemer Division of the Jefferson Circuit Court (“the trial court”) to the extent that it dismissed their claims against Hank Black-mon. We reverse the trial court’s judgment.

Procedural History

On December 19, 2013, the Gileses filed a complaint against, among other defendants, Blackmon. The Gileses’ complaint alleged that they had hired Blackmon to conduct a home inspection on a certain house that they had contracted to purchase (“the house”). The Gileses further alleged that the home-inspection report had not revealed any termite damage or water damage to the house; however, according to the Gileses, after they had closed on the purchase of the house, they had discovered that the house had both termite damage and water damage. The Gileses alleged that they would not have completed the purchase of the house had they had known of the termite and water damage and that they had been harmed by Blackmon’s failure to note that damage on the home-inspection report.

The Gileses asserted against Blackmon claims of negligence, wantonness, misrepresentation, and breach of contract. On February 24, 2014, Blackmon filed a motion to dismiss, setting forth the following grounds:

“1. The complaint fails to state a claim upon which relief may be granted.
“2. The complaint fails to allege any duty to the [Gileses] that was breached by [Blackmon].”

The Gileses specifically asserted their damages as:

“a. The difference between the market value of the home had it been sold without substantial termite damage and the present market value of the home as it exists in its damaged condition;
“b. Consequential damages for the cost of repairs to the structure of the home; and,
“e. Physical injury, mental anguish and emotional distress.”

The Gileses amended their complaint first on April 16, 2014, and .again on July 10, 2014, but neither of those amendments materially changed the claims that were initially asserted against Blackmon.

On November 12, 2015, the trial court entered a judgment granting Blackmon’s motion to dismiss. On December 9, 2015, the Gileses filed a postjudgment motion. That motion was denied on December 11, 2015. The Gileses appealed to the Alabama Supreme Court; that court subsequently transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Standard of Review

“The standard of review applicable to an appeal of a trial court’s judgment granting a Rule 12(b)(6)[, Ala. R. Civ. P.,] motion to dismiss is well settled. In Crosslin v. Health Care Authority of Huntsville, 5 So.3d 1193, 1195 (Ala.2008), our supreme court stated:
“ ‘In considering whether a complaint is sufficient to withstand a motion to dismiss under Rule 12(b)(6), Ala. R. Civ. P., a court “must accept the allegations of the complaint as true.” Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002) (emphasis omitted). “ ‘The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [it] to relief.’ ” Smith v. National Sec. Ins. Co., 860 So.2d 343, 345 (Ala.2003) (quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993)). In determining whether this is true, a court considers only whether the plaintiff may possibly prevail, not whether the plaintiff will ultimately prevail. Id. Put another way, ‘“a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.’ ” Id. (emphasis added).’ ”

Murray v. Prison Health Servs., Inc., 112 So.3d 1103, 1106 (Ala.Civ.App.2012).

Discussion

On appeal, the Gileses argue that their complaint, as finally amended, “alleged sufficient facts and claims against Blackmon upon which relief may be granted.” Specifically, with regard to the negligence claim, the Gileses point out that, in order to prove that claim, they must show that Blackmon owed them a duty, that he breached that duty, and that the breach proximately caused the Gileses damage. Lowe’s Home Ctrs., Inc. v. Laxson, 655 So.2d 943, 945-46 (Ala.1994). In their complaint, the Gileses alleged that Black-mon had a duty to properly inspect the house and to accurately report the findings of that inspection, that Blackmon had breached that duty, and that the breach had caused the Gileses damage. Viewing those allegations most strongly in the Gileses’ favor, we cannot conclude that “ ‘ “ ‘it appears beyond doubt that [the Gileses] can prove no set of facts in support of the [negligence] claim that would entitle [them] to relief.’ ” ’ ” Murray, 112 So.3d at 1106. Therefore, we hold that th'e trial court erred in granting Blackmon’s motion to dismiss as to the negligence claim.

With regard to the misrepresentation claim, the elements of such a claim are “‘(1) a false representation (2) concerning a material existing fact (3) [reasonably] relied upon by the plaintiff (4) who was damaged as a proximate result.’” Fisher v. Comer Plantation, Inc., 772 So.2d 455, 463 (Ala.2000) (quoting Baker v. Bennett, 603 So.2d 928, 935 (Ala.1992)) (bracketed language added). As the Giles-es point out, § 6-5-101, Ala.Code 1975, provides: “Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.” In their complaint, as finally amended, the Gileses alleged that Blackmon had represented that he had properly inspected the house and that there were no problems other than those problems listed on the inspection report, that those representations were material, that those representations were false, that the Gileses had reasonably relied on the misrepresentations in purchasing the house, and that they were thereby damaged. Viewing those allegations most strongly in the Gileses’ favor, we cannot conclude that “““it appears beyond doubt that [the Gileses] can prove no set of facts in support of the [misrepresentation] claim that would entitle [them] to relief.’ ” ’ ” Murray, 112 So.3d at 1106. Therefore, we hold that the trial court erred in granting Blackmon’s motion to dismiss as to the claim of misrepresentation.

With regard to the breach-of-contract claim, the elements the Gileses were required to allege were: “(1) the existence of a valid contract binding the parties in the action, (2) [their] own performance under the contract, (3) [Black-mon’s nonperformance, and (4) damages.” Southern Med. Health Sys., Inc. v. Vaughn, 669 So.2d 98, 99 (Ala.1995). The Gileses alleged that they had agreed to pay Blackmon a specified sum in return for Blackmon’s agreeing “to diligently and thoroughly inspect [the house] in accordance with all applicable standards of his profession.” The Gileses also alleged that they had paid Blackmon the specified sum but that Blackmon had failed to meet his obligations under their agreement, thereby causing them damage. Viewing those allegations most strongly in the Gileses’ favor, we cannot conclude that “““it appears beyond doubt that [the Gileses] can prove no set of facts in support of the [breach-of-contract] claim that would entitle [them] to relief.’ ” ’ ” Murray, 112 So.3d at 1106. Therefore, we hold that the trial court erred in granting Blackmon’s motion to dismiss on the breach-of-contract claim.

Conclusion

Based on the foregoing, we reverse the trial court’s judgment dismissing the Giles-es’ claims of negligence, misrepresentation, and breach of contract against Blackmon, and we remand this cause for further proceedings.

REVERSED AND REMANDED.

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

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

      . The Gileses also alleged that the closing attorney, David Snoddy; their realtor, Mari-lee Cade, a realtor with JRHBW Realty, Inc., d/b/a RealtySouth ("RealtySouth”); and Real-tySouth had failed to ensure that the termite bond on the house was transferred from the previous owners to the Gileses. A summaty judgment was entered in favor of Snoddy, Cade, and RealtySouth with regard to those claims. That summaty judgment is not at issue in this appeal, and the issues relevant to the summary judgment have no bearing on the issues in this appeal.

      . We note that the Gileses have not argued on appeal that the trial court erred in dismissing their wantonness claim. "An argument not made on appeal is abandoned or waived." Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1124 n. 8 (Ala.2003), Therefore, we will not address any issues relating to that claim.

      . In light of our disposition of the Gileses' arguments on the merits of the judgment dismissing the claims, we pretermit discussion of their remaining argument—that the trial court erred by failing to hold a hearing on the motion to dismiss.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Carolyn E. SIMS v. JPMC SPECIALTY MORTGAGE, LLC, and JPMorgan Chase Bank, N.A.
    2150437.
    Court of Civil Appeals of Alabama.
    Aug. 26, 2016.

      Noel J. Nelson, Mobile; and Ray M. Thompson, Mobile, for appellant.
    Sandy G. Robinson of Cabaniss, Johnston, Gardner, Dumas & O’Neal LLP, Mobile; and Jason W. Bobo of Cabaniss, Johnston, Gardner, Dumas & O’Neal LLP, Birmingham, for appellees.
   THOMAS, Judge.

Carolyn E. Sims appeals an order of the Mobile Circuit Court (“the circuit court”) entering summary judgment in favor of JPMC Specialty Mortgage, LLC (“JPMC”), and JPMorgan Chase Bank, N.A. (“Chase”), and denying her summary-judgment motion. We affirm in part, reverse in part, and remand.

Background

The proceedings below (“the 2013 action”) commenced with a complaint that Sims filed on February 26, 2018, in the circuit court against JPMC and other fictitiously named parties, in which she requested declaratory relief and asserted claims of trespass, trespass to chattels, and conversion. Sims’s claims related to JPMC’s entry upon certain real property (“the property”) and actions that JPMC allegedly committed after JPMC’s foreclosure upon the property in 2009. In support of her claims, Sims alleged that JPMC had lacked authority to foreclose upon the property because JPMC had not been qualified to do business in Alabama and that JPMC’s entry upon the property and disposal of certain personal property after the 2009 foreclosure had therefore been tortious.

In response, JPMC filed a motion for a summary judgment, arguing that Sims’s claims were barred by the doctrine of res judicata and because they were compulsory counterclaims that Sims had failed to assert in an ejectment action that JPMC had brought against her in 2009 (“the 2009 action”) after its foreclosure upon the property. As evidentiary support for its motion, JPMC attached as exhibits several filings and orders from the 2009 action and from another action that had been commenced by Sims’s sister, Marian A. Tipp, against JPMC, Chase, and other defendants in 2011 (“the 2011 action”). The record does not contain every filing and order from the 2009 action and the 2011 action, but the following summary of those actions has been compiled by examination of certain documents that were attached as exhibits to the parties’ filings in the 2013 action.

I. The 2009 Action

The 2009 action that JPMC referenced in its summary-judgment motion in the 2013 action was an ejectment action that it commenced in the circuit court against Sims, the mortgagor, in July 2009, seeking her removal from the property. Sims thereafter filed in the circuit court a copy of a quitclaim deed that she had already executed and recorded in the probate office, whereby she had conveyed any interest that she had had in the property to Tipp in August 2009. After additional filings by the parties and Tipp and after apparently receiving permission from the circuit court to do so, Tipp filed in the 2009 action a “Complaint in Intervention” in which she alleged that JPMC had lacked authority to foreclose upon the property because JPMC had not been qualified to do business in Alabama and because an assignment of the mortgage to JPMC had not been recorded in the probate office. In light of her allegations, Tipp asserted claims of wrongful foreclosure, slander of title, trespass, and trespass to chattels against JPMC in the 2009 action.

In response, JPMC filed a motion requesting, among other things, that the circuit court dismiss Tipp’s complaint in the 2009 action “[pursuant to] Rule 12(b)(6)[, Ala. R. Civ. P.], as ... Tipp ha[d] failed to state a claim ... upon which relief can be granted.” In support of its motion, JPMC argued that Tipp “lack[ed] standing” to assert the claims alleged in her complaint, at least in part because any interest that Tipp had acquired via the quitclaim deed from Sims had been conveyed to Tipp after JPMC’s foreclosure upon the property and therefore JPMC’s allegedly wrongful foreclosure and its actions pursuant thereto could not have infringed upon any interest of Tipp at the time of the foreclosure.

JPMC also alleged that its acquisition of the mortgage was proper pursuant to an agreement between the Federal Deposit Insurance Corporation and JPMC’s parent company, Chase, and that Tipp had failed to offer any legal authority in support of her assertion that JPMC had been required to record the assignment of the mortgage to JPMC. JPMC also contended that it had, in fact, had “full authority to conduct foreclosures and initiate ejectment proceedings in Alabama” under federal law, contrary to Tipp’s assertions. Also relevant to this appeal is JPMC’s allegation that “[t]he true defendant, ... Sims, has already filed an [ajnswer ... with the assistance of counsel and is able to defend [JPMCJ’s ejectment claim against [her].”

Tipp filed a response in which she construed JPMC’s motion to dismiss as a summary-judgment motion and therefore argued that genuine issues of material fact existed, at least one of which, she asserted, was whether JPMC had been “the owner of record of the subject mortgage and the holder of the original promissory note thereby secured.” JPMC filed a reply in which it argued, among other things, that it had “already placed copies of the mortgage, the assignment, the executed and recorded foreclosure deed, and the demand for possession before th[e circuit court]” and that “Sims, the true defendant, ha[d] not challenged the foreclosure sale, and ... Tipp lack[ed] standing to do so.”

In July 2010, the circuit court entered an order that stated, in its entirety: “MOTION TO DISMISS PURSUANT TO RULE 12(B) filed by JPMC SPECIALTY MORTGAGE, LLC is hereby GRANTED.” (Capitalization in original.) Approximately one month later, JPMC filed a motion requesting that the circuit court dismiss its ejectment claim against Sims without prejudice because the property was allegedly vacant. The circuit court entered an order granting JPMC’s motion to .dismiss the 2009 action against Sims.

II. The 2011 Action

As stated above, the 2011 action that JPMC referenced in its summary-judgment motion in the 2013 action was initiated by a complaint that Tipp had filed in 2011 Against JPMC, Chase, and other defendants in which she requested declaratory relief and asserted claims of wrongful foreclosure, slander of title, trespass, trespass' to .chattels, and fraud on the court. In support of her claims, Tipp’s complaint included several allegations of fraudulent activities by the parties named as defendants therein and allegations that JPMC had lacked authority to foreclose upon the property for a variety of reasons. JPMC, Chase, and the other defendants in the 2011 action moved for a summary judgment on Tipp’s claims, and the circuit court granted their motion. Tipp filed an appeal of the circuit court’s judgment in the 2011 action to our supreme court, and the supreme court affirmed the circuit court’s judgment, without an opinion, on October 12, 2012. See Tipp v. JPMorgan Chase Bank, N.A. (No. 1110677, Oct. 12, 2012), 166 So.3d 997 (Ala.2012)(table).

Although the record does not contain a copy of. the summary-judgment motion that -was. filed by JPMC, Chase, and the other defendants in the 2011 action and although the circuit court’s summary judgment in that case does not recite the specific basis for its determination, the record contains a , copy of the appellate brief that was'filed in the supreme court by JPMC, Chase, and the other defendants. Their brief sets out what they assert were the bases for the circuit court’s determination that a summary judgment in their favor in the 2011 action was appropriate.

In their appellate brief in the 2011 action, JPMC, Chase, and the other defendants stated:

“[The defendants] sought summary judgment on two distinct grounds. One was that [Tipp] lacked standing to challenge the foreclosure of the property at issue because her interest in the property arose only after foreclosure and the quitclaim deed to her was expressly subject to the earlier foreclosure deed. The other ground was that the claims asserted were barred by res judicata.... The trial court’s- order granting the summary judgment motion was general and not limited to the res judicata ground. Therefore, if summary judgment was proper on either ground, the trial court’s order must be affirmed. [Tipp] does not challenge on appeal the validity of a summary judgment in favor of [the] defendants on the basis of her. own lack of standing.
“In her Statement of the Issues, [Tipp ] incorrectly asserts that an issue in this case is that [the defendants] lacked standing to bring a foreclosure/ejectment action against Sims and Tipp. ’ The case on appeal here was filed by [Tipp] in 2011 and was not any sort of foreclosure/ejectment action. • A different, prior lawsuit began with a claim by [JPMC] against [Sims], the mortgagor, for ejectment following a non-judicial foreclosure. That [case] did not involve any sort of foreclosure action, and it did not involve any ejectment- action against [Tipp]. No appeal of the adjudication of that separate, prior case was filed.”

(Emphasis added.) The defendants went on to argue in their appellate brief-in the 2011 action that Tipp’s claims in the 2011 action were barred by the doctrine of res judicata, in part,- because they were essentially the same' claims that she had asserted in the 2009 action, which had already been adjudicated against her. The record indicates that the proceedings in the 2011 action ended after the supreme court’s af-firmance of the circuit court’s judgment.

Ill, The 2013 Action

.In light of the proceedings summarized above, JPMC argued that it was entitled to a summary judgment in the 2013 action because, it contended, Sims’s claims were barred by the doctrine of res judicata and because they were compulsory counterclaims that Sims had failed to assert in the 2009 action. After some discovery and several filings and orders pertaining to discovery, Sims filed a response to JPMC’s summary-judgment motion in which she argued, among other things, that her claims were not barred by the doctrine of res judicata because the merits of her claims against JPMC had not been adjudicated in the 2009 action and because she had not been a party to the 2011 action.

She also argued that her claims were not compulsory counterclaims in the 2009 action because they had accrued after the 2009 action had been resolved. In other words, she contended that the claims asserted in her complaint had arisen, from the alleged trespass of JPMC and the fictitiously named parties upon the property and her chattels after the 2009 action had been dismissed and, therefore, could not have been compulsory counterclaims in the 2009 action, which had already been dismissed by order of the circuit court at the time of the allegedly tortious conduct. As evidentiary support for her response, Sims also attached as exhibits various filings and orders from the 2009 action and the 2011 action.

That same day,- Sims filed a “motion to strike [JPMCj’s. motion for [a] summary judgment” in which she argued, among other things, that the circuit court had “not acquired subject[-]matter jurisdiction over JPMC’s [mjotion and claims therein because JPMC ... lack[ed] standing to make claims for affirmative relief as an unauthorized foreign corporation.” Sims’s motion went on to contend that the copy of the promissory note that had been secured by the mortgage on the property that JPMC had produced during discovery was fraudulent and contained a forged endorsement and that there were other deficiencies regarding the documents that JPMC had produced during discovery.

JPMC filed a reply to Sims’s response to its summary-judgment motion that same day, again arguing that there had been a prior adjudication on the merits of Sims’s claims and that her claims were compulsory counterclaims in the 2009 action because they “revolve[d] around the validity of the ... foreclosure sale.” JPMC also contended that Sims’s claims could not have accrued after the 2009 action because, after the circuit court had granted its motions to dismiss Tipp’s complaint and its complaint against Sims, it owned the property and, therefore, its actions on the property after that time could not have been torts against Sims. The next day, JPMC filed a response to Sims’s motion to strike its summary-judgment motion, contending that the circuit court had subject-matter jurisdiction to consider its summary-judgment motion, at least in part, because it had not requested any affirmative relief and Sims had named it as a defendant in her complaint.

In October 2013, Sims filed a motion requesting that the circuit court require JPMC to deposit the original promissory note with the circuit court, and the circuit court set a hearing on Sims’s motion to be conducted on December 12, 2013. The record does not contain a transcript of the circuit court’s hearing, but it indicates that JPMC produced the “wet-ink” original promissory note for the circuit court’s inspection at the hearing.

On December 17, 2013, Sims filed an amended complaint in which she again asserted the claims set out in her original complaint. In addition to those claims, Sims also asserted claims of fraud, “money had and received,” and a violation of the “Litigation Accountability Act” against JPMC. She also asserted claims of fraud, “money had and received,” “spoliation of evidence,” and “Litigation Accountability Act violation” against Chase. In support of her claims, Sims alleged that JPMC had fraudulently misrepresented to the circuit court that it had been in possession of the promissory note when it had foreclosed upon the property (see note 3, supra). She also made similar allegations regarding Chase and alleged that Chase and JPMC had worked in concert to place a forged endorsement on the promissory note (see note 4, supra). In January 2014, JPMC and Chase filed a “supplement” to JPMC’s summary-judgment motion, in which Chase adopted JPMC’s motion for a summary judgment, and argued that Sims’s claims were barred by the doctiine of res judicata and because the claims were compulsory counterclaims that she had not raised in the 2009 action.

After additional filings by the parties, Sims filed a motion for a summary judgment in December 2014. In her motion, Sims argued that she was entitled to a summary judgment on her claims because she had made a prima facie showing that no genuine issue of material fact existed regarding her claims; because JPMC and Chase had raised the affirmative defense of res judicata for the first time in their summary-judgment motions, rather than pleading it in an answer; and because JPMC and Chase had failed to provide substantial evidence creating a genuine issue of material fact regarding her claims.

JPMC and Chase filed a response to Sims’s summary-judgment motion, arguing that her motion should be denied, at least in part, because she had presented no admissible evidence to support her allegations of forgery. JPMC and Chase attached to their response as exhibits copies of the promissory note and the mortgage in addition to an affidavit of a vice president of Chase in which the affiant averred, among other things, that JPMC had acquired the promissory note in April 2009.

Sims thereafter filed a motion to strike portions of the affidavit and the copies of the promissory note and the mortgage that had been attached as exhibits, arguing that the affiant had failed to properly authenticate those documents. JPMC and Chase filed a response in which they argued, among other things, that the promissory note and the mortgage had already been authenticated and that the “wet-ink” original documents had already been provided to Sims’s attorneys and the circuit court for inspection.

On September 17, 2015, the circuit court entered an order in which it denied Sims’s pending motions, including her motion for a summary judgment, stating: “[Although the application of res judicata alone precludes summary judgment in favor of [Sims], the [circuit c]ourt has reviewed [Sims]’s motion and finds that it is also due to be denied on its merits because the motion is not supported by admissible evidence.” The circuit court also granted JPMC’s and Chase’s summary-judgment motions, stating:

“Based on the evidence and arguments presented, the [circuit cjourt finds that [SimsJ’s claims against JPMC and Chase in this case are barred by the doctrine of res judicata, as they are the same claims and causes of action that were asserted and adjudicated on their merits in the 2009 and 2011 [e]ases. [Sims] is bound by the ruling in those prior cases, even where not a named party, because she was in privity with ... Tipp due to their aligned interests. Likewise, JPMC and Chase are in privity due to their parent-subsidiary relationship. Therefore, JPMC and Chase are entitled to summary judgments] as a matter of law in their favor as to all of [Sims]’s claims against them in this case and the summary judgments are hereby GRANTED.
a
“This Order completely disposes of all claims, causes of action, and rights to relief asserted by any party in this case. Costs taxed as paid.”

Sims filed a timely notice of appeal to our supreme court, and the supreme court transferred this appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Sims argues that the circuit court’s order should be reversed because: (1) the circuit court should not have considered the defense of res judicata because JPMC and Chase raised it as an affirmative defense in their summary-judgment motions, rather than in a responsive pleading; (2) her claims are not barred by the doctrine of res judicata; (3) the circuit court erroneously denied her summary-judgment motion, which she contends was “properly supported,” and JPMC and Chase “failed to properly controvert [her] evidence”; and (4) the circuit court failed to strike JPMC’s and Chase’s summary-judgment motions and erroneously struck the evidence that she had submitted in support of her summary-judgment motion. We address each of her arguments in turn.

Standard of Review

We review the circuit court’s grant or denial of a summary-j udgment motion de novo. Nelson v. Estate of Nelson, 53 So.3d 922, 927 (Ala.Civ.App.2010).

“ ‘ “A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present ‘substantial evidence’ creating a genuine issue of material fact—‘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.’ Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”
‘Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).’
“Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala.2006).”

Smith v. Fisher, 143 So.3d 110, 122-23 (Ala.2013).

Analysis

We first consider Sims’s arguments regarding the circuit court’s grant of JPMC’s and Chase’s summary-judgment motions on the ground of res judicata. Sims argues that JPMC and Chase improperly asserted res judicata as an affirmative defense because they failed to raise it in a responsive pleading and, thus, that their summary-judgment motions should have been stricken. In response, JPMC and Chase note that they did not file answers in response to Sims’s complaint and that they therefore properly raised the doctrine of res judicata as an affirmative defense in their summary-judgment motions. In support of their argument, JPMC and Chase quote Marlow v. Mid South Tool Co., 535 So.2d 120, 125 (Ala.1988), in which our supreme court stated:

“[T]his Court has recognized that if a defendant moves for summary judgment before he files an answer, any affirmative defense argued in support of the motion for summary judgment has not been waived. Wallace v. Alabama Ass’n of Classified School Employees, 463 So.2d 135, 137 (Ala.1984). Only if an answer fails to assert an affirmative defense that is argued in a subsequently filed motion for summary judgment is the affirmative defense deemed waived.”

The record indicates that neither JPMC nor Chase filed an answer in response to Sims’s complaint or amended complaint, and instead they chose to seek a summary judgment on the ground of res judicata in their first responsive filings. Therefore, they did not waive res judicata as an affirmative defense, and the circuit court did not err by considering that defense. We cannot reverse the circuit court’s order for that reason.

Sims next argues that the circuit court erred in granting JPMC’s and Chase’s summary-judgment motions on the ground of res judicata. We agree.

“‘The elements of res judicata are “ ‘(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions.’ ” Chapman Nursing Home, Inc. v. McDonald, 985 So.2d 914, 919 (Ala.2007)(quoting Equity Res. Mgmt., Inc. v. Vinson, 723 So.2d 634, 636 (Ala.1998)),’
“Ex parte Chesnut, 208 So.3d 624, 635 (Ala.2016).”

Osborne v. Osborne, 216 So.3d 1237, 1240 (Ala.Civ.App.2016). Because Tipp asserted claims against JPMC in the 2009 action and claims against JPMC and Chase in the 2011 action, and because JPMC and Chase were successful in those actions against Tipp, we first consider whether the circuit court properly considered Tipp and Sims to be substantially identical parties for the purpose of applying the doctrine of res judicata.

The circuit court concluded, and JPMC and Chase argue on appeal, that JPMC and Chase were entitled to summary judgment in part because JPMC’s successful defense of the litigation initiated by Tipp in the 2009 action and the 2011 action amounted to adjudications on the merits of Sims’s claims because Sims and Tipp were in privity. In support of its determination, the circuit court stated:

“While the ‘substantial identity requirement generally requires the parties to be identical, Alabama courts recognize an exception to this rule for ‘parties in privity with a party to the prior action.’ Greene v. Jefferson County Comm’n, 13 So.3d 901, 912 (Ala.2008). The privity requirement has been summarized as follows:
“ ‘The term “privity” has not been uniformly defined with respect to res ju-dicata. The following three definitions have appeared in Alabama cases: (1) the relationship of one who is privy in blood, estate, or law; (2) the mutual or successive relationship to same rights of property; and-(3) and-identity of interest in the subject matter of litigation. Largely defining privity by example, the Alabama cases seem to resolve the question, on an ad hoc basis-in which the circumstances determine whether a person should .be bound by or entitled to the benefits of a judgment. The decision, usually turns on whether the relationship between the parties was close enough and whether adequate notice of the action was-received by .the privy; .this test has been bolstered by the recent tendency, of the Alabama courts to analyze privity as an identity of interest.’ ..
“Hughes v. Martin, 533 So.2d 188, 191 (Ala.1988)(quoting Issue Preclusion in Alabama, 32 Ala. L.Rev. 500, 520-21 (1981)). Therefore, ‘ “[a] person may be bound by a judgment even though not a party to a suit if one of the parties to the suit is so closely aligned -with his interests as to be his virtual representative.” ’ Brown v. Brown, 680 So.2d 321, 323 (Ala.Civ.App.1996)(quoting Green v. Wedowee Hosp., 584 So.2d 1309, 1315 (Ala.1991)).”

JPMC and Chase also cite Williams v. Moore, 36 So.3d 533, 540 (Ala.Civ.App.2008), for the proposition that “successors in title are in privity'with- their predecessors in title” and argue that, because Sims conveyed any interest that she had in the property to Tipp via the quitclaim deed, privity existed between Sims and Tipp and that, therefore, Sims’s claims are-barred by the doctrine of res judicata. -We-acknowledge the general principles cited by the circuit court, JPMC, and Chase in support of their conclusion that Sims and Tipp were in privity. However, we conclude that a genuine issue of material fact exists regarding whether the privity .exception to the general requirement of substantial identity of the parties under the doctrine of res judicata has been satisfied in this case.

First, this case is distinguishable from cases like Williams, in which we concluded that a judgment that had ascertained the property rights of the parties in the earlier action precluded relitigation of those same issues with regard to their successors in interest. Id. Here, the circuit court concluded that the judgments in the 2009 action and the 2011 action regarding the claims of Tipp, the successor in interest, precluded the claims of Sims, the predecessor in interest. The distinction is important in this case because, although the record does not disclose the specific reason that the circuit court granted JPMC’s motion to dismiss Tipp’s complaint in the 2009 action or the specific reason that JPMC, Chase, and the other defendants prevailed in the 2011 action, it indicates that they consistently argued in the prior actions that Tipp’s interest in the property, namely, the interest that she acquired via the quitclaim deed after JPMC’s foreclosure upon and purchase of the property, was not identical to Sims’s interest in the property, namely, the interest that she had in the property before JPMC’s foreclosure upon and purchase of the property.

“ <«‘Privity1 is a flexible legal term, comprising several different types of relationships and generally applying when a person, although not a party, has his interests adequately represented by someone with the same interests who is a party.” ’ ” McDaniel v. Harleysville Mut. Ins. Co., 84 So.3d 106, 112 (Ala.Civ.App.2011)(quoting Jim Parker Bldg. Co. v. G & S Glass Supply Co., 69 So.3d 124, 132 (Ala.2011), quoting in turn EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1286 (11th Cir.2004)). When viewed in a light most favorable to Sims, the record indicates that JPMC and Chase could have prevailed in the prior actions because the circuit court and the supreme court considered Tipp’s interest in the property to be different from Sims’s interest in the property. Thus, we conclude that a genuine issue of material fact exists regarding whether Sims’s interest in the property was adequately represented in the prior actions and that the entry of summary judgment in favor of JPMC and Chase was therefore inappropriate.

Secondarily, however, we also note that it is not apparent from the record that no genuine issue of material fact exists regarding whether there has been an adjudication on the merits of the claims asserted by Sims in the 2013 action, as is required by the doctrine of res judicata. In her appellate brief, Sims argues that the merits of her claims in the 2013 action were not adjudicated in the 2009 action because JPMC voluntarily dismissed its ejectment action against her. See Gallagher Bassett Servs., Inc. v. Phillips, 991 So.2d 697, 700 (Ala.2008)(“ ‘ “[T]he effect of a voluntary dismissal ... is to render the proceedings a nullity and leave the parties as if the action had never been brought.’” Ex parte Sealy [L.L.C.], 904 So.2d [1230] at 1236 [ (Ala.2004) ] (quoting In re Piper Aircraft Distrib. Sys. Antitrust Litig., 651 F.2d 213, 219 (8th Cir.1977))(emphasis added).”). She also asserts in her reply brief that her claims in the 2013 action were not adjudicated in the 2009 action because they are

“based on the actions of JPMC subsequent to the voluntary dismissal by JPMC of its ejectment action against her [in 2009], Sims’[s] claims against Chase in the [2013 action] are based upon Chase having placed a forged endorsement on the purported original of Sims’[s] promissory note two and one-half years after the foreclosure sale. The matter of forgery only came to light in late 2013 when Sims was finally able to obtain discovery from [JPMC and Chase].... ”

JPMC and Chase state in their appellate brief:

“Defendants have not argued, and the [c]ircuit [c]ourt did not hold, that [Sims’s] claims are barred by an adjudication of JPMC’s ejectment claim against her. Instead, it is the [cjircuit [cjourt’s dismissal of the claims asserted by Tipp against JPMC for failure to state a claim that constitutes an adjudication on the merits and operates to bar her current claims.
“Because Tipp’s claims were dismissed under Rule 12(b)(6) for failure to state a claim, and because the [circuit [c]ourt’s order does not state otherwise, the dismissal of Tipp’s claims constituted an ‘adjudication upon the merits’ under Ala. R. Civ. P. 41(b). See Havis v. Marshall Co., 802 So.2d 1101, 1103 n. 2 (Ala.Civ.App.2001)(Ala.R.Civ. P. 41(b) ‘provides that all dismissals not provided for in that rule, which would necessarily include dismissals under Rule 12(b)(6), operate as adjudications on the merits.’). The [o]rder became final for purposes of appeal once the [c]ourt granted JPMC’s Motion to [dismiss the ejectment claims against Sims, which was the last remaining claim in the 2009 [c]ase.”

In so doing, JPMC and Chase argue that the 2009 action “addressed not only Tipp’s standing, but also [JPMC’s] legal standing to foreclose.”

We note that Sims’s allegations of forgery and the other claims against JPMC and Chase that she added in her amended complaint do not, on their face, appear to be analogous to the claims asserted by Tipp in the 2009 action. Furthermore, those claims appear to involve actions that JPMC and Chase allegedly committed after the 2009 action was disposed of. Therefore, it is not apparent from the record that the merits of those claims could have been adjudicated in the 2009 action.

JPMC and Chase assert that there is no genuine issue of material fact regarding whether the circuit court’s dismissal of Tipp’s complaint in 2009 action adjudicated the question of JPMC’s legal authority to foreclose upon the property. However, when viewed in a light most favorable to Sims, the record does not support that assertion, which is inconsistent with the position taken by JPMC in the 2009 action and the 2011 action because it sought relief in those actions, at least in part, based on its repeated contention that the validity of its foreclosure upon the property was not being litigated in those actions. Therefore, when viewed in a light most favorable to Sims, the record indicates that a genuine issue of material fact exists regarding whether there has been a prior adjudication on the merits of Sims’s claims and, thus, whether her claims are barred by the doctrine of res judicata. Furthermore, although an appellate court may affirm a judgment of the circuit court on any valid ground, we do not consider whether summary judgment would have been appropriate on any alternative ground because there is no indication that .the circuit court intended to' base its decision to grant JPMO’s and Chase’s summary-judgment motions . on any ground other than the doctrine of' -res judicata. See Pavilion Dev., LLC v. JBJ P’ship, 979 So.2d 24, 36 (Ala.2007).

■ We next consider Sims’s argument that the circuit court erred by denying her "siimmary-judgment motion. Because the circuit court’s order disposed of all claims that were pending in the 2013 action, its denial.,of Sims’s summary-judgment motion is renewable on appeal. In its order, the circuit court determined that the doctrine. of; res judicata foreclosed- summary judgment in favor of Sims. When viewed in a,light, most favorable to JPMC and Chase, we cannot say that the circuit court’s determination in that regard constitutes reversible error. As explained above, the record before this court indicates that a genuine issue of material fact exists regarding whether Sims’s claims are barred by the doctrine of res judicata. Sims was therefore not' entitled to summary judgment, and we affirm the circuit court’s denial of her summary-judgment motion.

Conclusion

■ We do not reach the merits of Sims’s underlying claims. We also do not decide whether the affirmative defense of res ju-dicata,' or another defense, would ultimately be successful against Sims’s claims. We merely hold that a genuine issue of material fact exists regarding whether Sims’s claims are barred-by the doctrine of res judicata. We must therefore reverse the portion of the circuit court’s order entering summary judgment in favor of JPMC and Chase and remand this action for further proceedings. Because we are reversing the circuit court’s order entering summary judgment in favor of JPMC and Chase and remanding this case for further proceedings, we pretermit any discussion of the remaining evidentiary arguments raised by Sims. See North Clarke Water Authority v. Dockery, 5 So.3d 634, 637 (Ala.Civ.App.2008). Finally, we affirm the circuit court’s order insofar as it denies Sims’s summary-judgment motion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . Sims also filed a "Special Power of Attorney” in which she, among other things, stated that Tipp had “the full power and authority to exercise [Sims's] legal rights in all matters related to the property" and purported to give Tipp, who does not appear to have been a licensed attorney, authority to represent her in the 2009 action. The record indicates that Sims and Tipp later obtained representation of counsel in the 2009 action.

      . Although the record contains several references to Tipp’s "standing,” or lack thereof, in the prior actions, we note that the issue whether those arguments would have been more properly framed as questions of real party in interest or other concepts is not before this court. See generally Ex parte BAC Home Loans Servicing, L.P., 159 So.3d 31 (Ala.2013)(discussing standing and distinguishing that concept from other concepts).

      . During discovery, JPMC stated in its responses to Sims’s interrogatories that it had been in possession of the promissory note that had been secured by the mortgage on the property since April 15, 2009.

      . In support of her motion, Sims attached as exhibits, among other things, two copies of the promissory note that had been provided by JPMC during discovery. She noted that they differed in that a spiral-shaped mark was absent from the verified copy but was present on the unverified copy. She also attached as an exhibit a copy of an "Exception Report” that had been produced by JPMC during discovery, arguing that the report demonstrated that JPMC "was not the holder in due course of [the promissory note] at the time of the foreclosure” because it indicated that JPMC had not obtained an endorsement of the promissory note by an executive of Ameri-quest Mortgage Company, the original mortgagee, until 2012. She also argued that the endorsement was a forgery because the Amer-iquest Mortgage Company executive who purportedly endorsed the promissory note in 2012 actually retired in 2004, and she attached as an exhibit an article from a magazine publication in which the executive's retirement was announced.

      . We note that the circuit court's order did not specifically reference Sims’s claims against the fictitiously named parties listed in her complaint. However, our supreme court "has rejected the idea that an action can be commenced or survive against only fictitiously named parties. Thus, the dismissal of, or a summary judgment as to, the only named defendants in a civil action also disposes of any remaining allegations against the flcti-tiously named parties.” Johnson v. Reddoch, 198 So.3d 497, 504 (Ala.2015). Because the circuit court’s order disposed of all claims pending against JPMC and Chase, the only named defendants in the 2013 action, we conclude that the order constitutes a final judgment that properly supports Sims's appeal.

      . For the sake of clarity, we have listed and addressed Sims's arguments in a different order than they appear in her appellate brief.

      . JPMC and Chase’s argument appears to be based on the notion that, if the issue of the validity of JPMC’s foreclosure had already been litigated in JPMC’s favor in the 2009 action or the 2011 action, Sims would be unable to demonstrate at least one element of each of her claims in the 2013 action. That argument appears to be based on the doctrine of collateral estoppel, not the doctrine of res judicata. The record is devoid of any reference by JPMC or Chase to, and we will therefore not consider, the applicability, if any, of the doctrine of collateral estoppel to this appeal. See Dairyland Ins. Co. v. Jackson, 566 So.2d 723, 726 (Ala.1990)(explaining the difference between the doctrines of res judicata and collateral estoppel).

      . See Board of Zoning Adjustment of Trussville v. Tacala, Inc., 142 So.3d 624, 629 (Ala.Civ.App.2013)("Although the denial of a summary-judgment motion is ordinarily not appealable, our supreme court has explained that an 'appeal from a pretrial final judgment disposing of all claims in the case (as distinguished from a Rule 54(b), Ala, R. Civ. P., summary judgment disposing of fewer than all claims) entitles [the appellant], for purposes of [appellate] review, to raise issues based upon the trial court's adverse rulings, including the denial of its summary-judgment motions.’ Lloyd Noland Found., Inc. v. City of Fairfield Healthcare Auth., 837 So.2d 253, 263 (Ala.2002); see also Tanner v. State Farm Fire & Cas. Co., 874 So.2d 1058, 1066 (Ala.2003).”).


author: KELLUM, Judge.

text:
    D.I.J. v. STATE of Alabama.
    CR-15-0221.
    Court of Criminal Appeals of Alabama.
    Aug. 12, 2016.

      Bobby Lendell Davis, Birmingham, for appellant.
    Luther Strange, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.
   KELLUM, Judge.

A delinquency petition was filed in the Jefferson Juvenile Court charging the appellant, D.I.J., a 16-year-old male, with two counts of theft of property in the first degree, a violation of § 13A-8-3, Ala.Code 1975, and one count of burglary in the third degree, a violation of § 13A-7-7, Ala. Code 1975. Following a bench trial, the juvenile court found that D.I.J. had committed the charged offenses and adjudicated him delinquent. The juvenile court ordered D.I.J. to be placed in the custody of the Department of Youth Services.

The evidence presented to the juvenile court established the following pertinent facts. On September 21, 2015, Kerry Dunn and his wife, Tieca Dunn, went to dinner to celebrate their wedding anniversary. When the Dunns returned to their house in Hueytown at approximately 8:00 p.m., their red Chevrolet Camaro automobile was being backed out of their driveway. They noticed someone in a black sport-utility vehicle (“SUV”) parked in front of their house. Dunn saw the person driving the Camaro but did not recognize him. The driver of the Camaro put the car in reverse and “shot around [Dunn].” (R. 12.) The driver of the SUV then began to drive away from the house. At first Dunn followed the Camaro, but after losing the Camaro Dunn began to pursue the SUV instead. Tieca telephoned the police during Dunn’s pursuit of the SUV. When the police arrived, they chased the SUV until it wrecked. Police removed three males from the SUV, one of whom was lying in the back floorboard of the SUV and was later identified as D.I.J. Police searched the SUV and found Tieca’s purse, pillowcases, shoes including three pairs of Air Jordan shoes and a pair of Nike shoes, a laptop computer, prescription medication, clothes, and a piggy bank.

Approximately 10 minutes after the wreck occurred, Dunn and his wife returned to their house. Dunn noticed his 70-inch television lying in the ditch next to his mailbox. When Dunn 'unlocked the front door and entered the house, he saw that the house was in “pretty bad shape,” (R. 28.) The back door and the bedroom door had been kicked in, the refrigerator door and cabinet doors had been left open, and the mattress in the master bedroom had been flipped over. Dunn walked through the house without touching anything and waited outside for the police to arrive.

Dunn testified that several pairs of his Air Jordan sneakers were missing out of their boxes and that his wife’s Jessica Simpson brand shoes were also missing. Tieca testified that an Apple iPad, a wedding ring, a watch, and some costume jewelry were also missing. Before the police left, they > informed Dunn and Tieca that the Camaro had been recovered at .a Bessemer hotel; the keys were in the Camaro when it was found. The driver’s side front and back rims were bent and the paint was scratched. Dunn testified that the keys to the Camaro had been stolen from the nightstand in the' master bedroom, which he kept locked.

Chris Taylor, a police officer with the Hueytown Police Department, responded to a call regarding a vehicle theft at the Dunn’s house. Officer Taylor instructed Dunn to walk with him through the house to determine what items were missing. Dunn informed Officer Taylor that a Playstation 8 gaming console, two 32-inch flat screen Vizio brand televisions, an iPad, and approximately 12 pairs of shoes were missing.:

After all the evidence had been presented, the juvenile court adjudicated D.I.J. delinquent. D.I.J. filed a postjudgment motion for a judgment of acquittal in which he argued that his convictions for first-degree theft of property and third-degree burglary violated double-jeopardy principles and that the State failed to present sufficient evidence indicating that the items stolen from the Dunns’ house were worth $2,500 or greater, an element of first degree theft of property. The juvenile court denied D.I.J.’s postjudgment motion; this appeal followed.

I.

D.I.J. contends that the juvenile court erred by denying his motion for a judgment of acquittal on the charge of theft of property in the first degree for the items stolen from the Dunns’ house because, he argues, the State did not prove the value of the stolen items.

‘““In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.” ’ Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim. App.1984), aff'd, 471 So.2d 493 (Ala.1985). ‘“The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.” ’ Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). ‘“When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.’” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). ‘The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).
“‘The trial court’s denial of a motion for judgment of acquittal must be reviewed by determining whether there was legal evidence before the jury at the time the motion was made from which the jury by fair inference could find the defendant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978). In applying this standard, this court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Cr.App.1983). When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for judgment of acquittal does not constitute error. McConnell v. State, 429 So.2d 662 (Ala.Cr.App.1983).’ ”

Gavin v. State, 891 So.2d 907, 974 (Ala.Crim.App.2003), cert. denied, 891 So.2d 998 (Ala.2004)(quoting Ward v. State, 610 So.2d 1190, 1191 (Ala.Crim.App.1992)).

Section 13A-8-2, Ala.Code 1975, provides that “[a] person commits the crime of theft of property if he or she ... [k]now-ingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his or her property.” Section 13A-8-3(a), Ala.Code 1975, states that the “theft of property which exceeds two thousand five hundred dollars ($2,500) in value, or property of any value taken from the person of another, constitutes theft of property in the first degree.” “Value” is defined as “[t]he market value of the property at the time and place of the criminal act.” § 13A-8-l(14), Ala.Code 1975. In Lasley v. State, 418 So.2d 193 (Ala.Crim.App.1982), this Court held that

“the value of stolen property may be proven by circumstantial evidence. 52A C.J.S. Larceny Section 133 (1968). Jurors may not infer the existence of value from an inspection of the thing itself, or from a description of it by witnesses, as this allows the jurors to become witnesses without being sworn and subject to examination. Mitchell v. State, 24 Ala.App. 570, 139 So. 109 (1932). This rule does not apply where the record reveals the ‘data’ the jury used to assess the value. Lucas v. State, 96 Ala, 51, 53 11 So. 216 (1891).”

Lasley, 418 So.2d at 194.

In this case, the State presented no evidence regarding the value of the items stolen from the Dunns’ house. Dunn and Tieca testified regarding what property was missing from their house following the burglary. Their testimony, along with the testimony of Officer Taylor, indicated that a laptop computer, purse, clothes, jewelry, a Playstation 3 gaming console, two 32-inch flat screen Vizio brand televisions, an iPad, approximately 12 pairs of shoes, and a piggy bank containing an unspecified amount of money in it were stolen. Although Dunn, Tieca, and Officer Taylor presented a lengthy list of the items that were stolen, none of them testified regarding the value of any of those items.

Evidence tending to establish the value of the property stolen is necessary to sustain a conviction for theft of property in the first degree where a conviction on this charge required evidence that the property exceeded $2,500 in value. Compare Seaton v. State, 645 So.2d 341 (Ala.Crim.App.1994) (affirming conviction for theft of property in the first degree where victim testified that defendant stole five cows valued at approximately $600 each); Mayfield v. State, 641 So.2d 1294 (Ala.Crim.App.1994)(holding that State established prima facie case of first-degree theft of property where victim testified that value of items stolen exceeded statutory limits); and Hurst v. State, 402 So.2d 1124 (Ala.Crim.App.1981)(affirming conviction for theft of property where evidence established monetary value of stolen items). Because the State failed to present sufficient evidence showing that D.I.J, stole property exceeding $2,500 in value, it failed to establish a prima facie' case of theft of property in the first degree under § 13A-8-3(a), and the juvenile court erred in denying D.I.J,’s motion for a judgment of acquittal as to that charge.

II.

D.I.J. also contends that his adjudication based on two counts of theft of property in the first degree and one count of burglary in the third degree violates double-jeopardy principles because, he argues, “all three adjudications arose out of and [were] based on the same occurrence.” (D.LJ.’s brief, p. 9.)

Under the. principles of double jeopardy, “[t]he applicable rule is .that, where the same act or transaction constitutes a violation of two- -distinct statutory provisions, the test to be applied to, determine whether there are two offenses or only one, is whether, each provision- requires proof of a fact which, the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Therefore, “ ‘[a] single act may be an offense against two statutes; and if each statute requires‘proof of an additional fact which the other does not, an! acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.* ” ‘ Id. (quoting Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 55 L.Ed. 489, (1911), in turn quoting Morey v. Commonwealth, 108 Mass. 433 (1871)).

Contrary to D.I.J.’s claim, because the burglary and theft offenses-each required proof of an element not present in the other offense,-there was no-double-jeopardy violation in adjudicating- D.LJ. delinquent for third-degree burglary and first-degree theft arising out of the same course of conduct. See Ex parte Dixon, 804 So.2d 1075, 1078-79 (Ala.2000); Ex parte McKelvey, 630 So.2d 56, 57 (Ala.1992); and Vason v. State, 574 So.2d 860 (Ala.Crim.App.1990). However, D.I.J. is correct insofar as he argues’ that his adjudication based on two theft-of-property offenses arising out of a single theft constitutes a double-jeopardy violation.

“It is well settled that ‘[a] single crime cannot be divided into two or inore offenses and thereby subject the perpetrator to multiple convictions for the same offense.’ Ex parte Darby, 516 So.2d 786, 787 (Ala.1987). With respect to theft of property, this Court -has held that ‘[t]he State cannot convert a single theft of various items of property stolen from the same victim in the same [transaction] into separate offenses by alleging the theft of different items in separate counts of the indictment.’ Pardue v. State, 571 So.2d 320, 330 (Ala.Crim.App.1989), rev’d on other grounds, 571 So.2d 333 (Ala.1990).
“In Connolly v. State, 539 So.2d 436 (Ala.Crim.App.1988), this Court held that a conviction for theft of an automobile barred a later charge for capital murder during a robbery involving property other than the automobile because the theft of the automobile and the theft of the other property occurred as a single transaction and, therefore, constituted a single offense of theft.”

Lynch v. State, [Ms. CR-14-1582, June 3, 2016] — So.3d -, -(Ala.Crim.App.2016).

Although charging D.I.J. with two counts of theft of property in the first degree constituted a double-jeopardy violation, our conclusion in Part I of this opinion that the State failed to prove a prima facie case of one count of theft of property in the first degree under § 13A-8-3(a) renders D.LJ.’s double-jeopardy argument moot.

Based on the foregoing, we affirm D.I.J.’s adjudication of delinquency based on one count of theft of property in the first degree and one count of burglary in the third degree. However, for the reasons set forth in Part I of this opinion, DJJ.’s adjudication of delinquency on the theft-of-property charge relating to items taken from the house is due to be set aside and a judgment rendered in D.I. J.’s favor.

AFFIRMED IN PART; REVERSED IN PART; AND JUDGMENT RENDERED.

WELCH and BURKE, JJ., concur. WINDOM, P.J., and JOINER, J., concur in the result.

      . D.I.J. does not challenge on appeal the sufficiency of the evidence to sustain his conviction for theft of property in the first degree for the theft of the Camaro.


author: JOINER, Judge.

text:
    Lavell Jerelle PERKINS v. STATE of Alabama.
    CR-15-0473.
    Court of Criminal Appeals of Alabama.
    Aug. 12, 2016.
    Jason Darley, Mobile, for appellant.
    Luther Strange, atty. gen., and Monica Early, asst. atty. gen., for appellee.
   JOINER, Judge.

Lavell Jerelle Perkins appeals the circuit court’s revocation of his probation. We reverse and remand.

Facts and Procedural History

On March 22, 2012, Perkins pleaded guilty to manslaughter, see § 13A-6-3, Ala.Code 1975, and was sentenced to 15 years’ imprisonment; that sentence was split, and Perkins was ordered to serve 3 years’ imprisonment followed by 3 years’ probation. Perkins was released from the custody of the Alabama Department of Corrections on April 4, 2013, and, at that point, began serving his three-year probationary term.

Thereafter, on September 24, 2013, “a writ of arrest was issued for [Perkins]” and, on February 20, 2014, Perkins’s probation “was partially revoked for 18 months and [he was] given credit for the time he had already served. The end date of the 18-month partial revocation was on or about April 20, 2015.” (C. 18.)

On March 26, 2015, Whitney McGill Ma-holovich, Perkins’s probation officer, filed a letter with the circuit court noting that Perkins’s “end of probation” date was June 29, 2015. (Supplemental Record on Appeal, C. 16.) In that letter, Officer Maho-lovich provided the following explanation for setting Perkins’s “end of probation” date for June 29, 2015:

“After Perkins’fs] probation was reinstated following a partial revocation, Your Honor amended his 3 year probation sentence to 2 years. Your Honor requested that 6 months after he was released from the partial revocation, his file be closed. This would mean Perkins will reach his end of sentence date in June 2015.”

(Supplemental Record on Appeal, C. 16 (emphasis added).) The circuit court signed that letter on a blank line next to the phrase: “I concur.” (Supplemental Record on Appeal, C. 16.)

Approximately four months after the “end of sentence date” noted in Officer Maholovich’s letter, “[o]n November 3, 2015[, Perkins] was arrested for Assault 2nd Degree for allegedly shooting a victim twice with a gun.” (C. 18.) On November 5, 2015, the State filed a motion to revoke Perkins’s probation, in which the State alleged, among other things, that, although Perkins’s “State Probation supervision was terminated June 29, 2015,” Perkins remained on “informal probation for the remaining year of his probationary sentence.” (C. 18.)

On November 6, 2015, the circuit court issued an order, finding that there existed “probable cause to issue a warrant for the failure to comply with the terms and conditions of the probationary order issued by this Court” and issuing an “Alias Writ of Arrest” for Perkins. (C. 14.)

On January 14, 2016, the circuit court conducted a probation-revocation hearing. At that hearing, Perkins’s appointed counsel argued:

“Judge, [the State] filed to revoke [Perkins’s] probation. Whitney [Maho-lovich] filed a letter with the court saying that Mr. Perkins was no longer on probation and that he should be released. Subsequent to that, [the State] filed a motion to revoke [Perkins’s] probation saying that while the State was no longer supervising [Perkins] because his probation had been tolled in the past that he was still on informal probation. I had asked for some additional time to ,.,get. a transcript of the first probation revocation because Whitney [Maholo-.vich] was under the impression that you had instructed her to allow probation to terminate. So I talked to [the court reporter] about the transcript. She looked it up for me, and essentially what you said at that hearing was you partially revoked him to serve 18 months, and after you did that, you said and once hié’s served that time, we’ll need to have a hearing on whether he needs to continue on probation or not. Okay? So that hearing never took place; so I think he was on probation.”

(R. 4.) Thereafter, the following exchange occurred:

“[Prosecutor]: .., [T]he basic procedural chronology to the outline [in the motion to revoke Perkins’s probation] is , correct. There’s no order from the court terminating—
“The Court: He’s on probation.”

(R. 4-5.) At the conclusion of the hearing, the circuit court revoked Perkins’s probation and memorialized that decision in a written order. Thereafter,'Perkins filed a timely notice of appeal.

Discussion

On appeal, Perkins argues that Officer Maholovich’s letter to the circuit court explaining that Perkins’s probation was set to- terminate on June 29, 2015, and the circuit court’s decision to-endorse that letter as “concurring” in Officer Maholovich’s termination assessment resulted in Perkins’s probation terminating on June 29, 2015. Thus, according to Perkins, the circuit court committed reversible error when it initiated the probation-revocation proceeding against him on November 6, 2015, and decided to revoke his probation on January 14, 2016.

The State, on the other hand, argued in the circuit court that, although Perkins’s “State Probation supervision was terminated June 29, 2015,” Perkins remained on “informal probation for the remaining year of his probationary sentence” (C. 18.), and now contends on appeal’ that Perkins’s argument—that his probation terminated on June 29, 2015—is premised on Officer Ma-holovich’s misunderstanding of the circuit court’s February 20, 2014, order partially revoking Perkins’s probation. Specifically, the State, in its brief on appeal, argues:

“The partial revocation of Perkins’[s] probation on February 20, 2014, tolled his probationary period. Perkins began serving a three-year probationary term April 4, 2013. On September 24, 2013, a writ of arrest was issued for Perkins, tolling his probation. On February 20, 2014, Perkins was partially revoked for eighteen months. The end date of the eighteen month partial revocation was April 10, ’2015, so essentially Perkins only served twelve months[’] probation. Since the letter written by Perkins’[s] probation officer was clearly a misinterpretation of the trial court’s order, and Perkins was never formally discharged from probation, Perkins still remained on probation when he was arrested for assault in the second degree on November 3, 2015. Therefore, the trial court retained jurisdiction to revoke Perkins’[s] probation on the new offense and Perkins’[s] probation had not terminated.”

(State’s brief, p. 6 (citations omitted).)

“In Woodward v. State, 3 So.3d 941 (Ala.Crim.App.2008), this Court stated:
“ ‘We begin by noting that a probationary period does not end until: (1) the probationer satisfactorily fulfills all the conditions of probation and the actual probationary term ordered by the court expires, see § 15-22-54(a), Ala.Code 1975 (“When the conditions of probation or suspension of sentence are fulfilled, the court shall, by order duly entered on its minutes, discharge the defendant.”), and Rule 27.3(c), Ala. R.Crim. P. (“Probation automatically terminates upon successful completion of the term of probation set by the court”); (2) if the probationer has not satisfactorily fulfilled all the conditions of probation, the maximum period of probation allowed by law expires, see § 15-22-54(a), Ala.Code 1975 (“in no case shall ... the maximum probation period of a defendant guilty of a felony exceed five years”); or (3) the probationer is formally discharged from probation by the court, see § 15-22-54(b), Ala.Code 1975 (“The court granting probation may, upon the recommendation of the officer supervising the probationer, terminate all authority and supervision over the probationer prior to the declared date of completion of probation upon showing a continued satisfactory compliance with the conditions of probation over a sufficient portion of the period of probation.”), and Rule 27.3(b), Ala. R.Crim. P. (“At any time during a term of probation, the sentencing court may terminate probation and discharge the probationer absolutely, after notice to the prosecutor. Early termination may result from a. motion of the probationer or the probation officer, or on the initiative of the court.”). See also G.L.C. v. State, 910 So.2d 163 (Ala.Crim.App.2005); Owens v. State, 728 So.2d 673 (Ala.Crim.App.1998); Sherer v. State, 486 So.2d 1330 (Ala.Crim.App.1986); Watkins v. State, 455 So.2d 160 (Ala.Crim.App.1984); and Hamilton v. State, 441 So.2d 1035 (Ala.Crim.App.1983). Initiation of proceedings to revoke probation, such as the issuance of an arrest warrant or the filing of a delinquency report by a probation officer, see Young v. State, 552 So.2d 879 (Ala.Crim.App.1989), tolls the running of the probationary term if the process is begun before the probationary term ends, see Owens, supra, and a trial court retains jurisdiction to revoke probation even after the probationary period has expired so long as the revocation proceedings were initiated within the maximum probationary term, see Sherer, supra, and Watkins, supra.
3 So.3d at 944.”'

Jones v. State, 158 So.3d 500, 502-03 (Ala.Crim.App.2014).

Here, the record on appeal establishes that Perkins’s probation officer filed a letter with the circuit court explaining that, based on the circuit court’s instructions, Perkins’s probation would terminate on June 29, 2015. Although the State contends that the probation officer’s assessment was based on a misunderstanding of the circuit court’s February 14, 2014, order partially revoking Perkins’s probation, the circuit court “concurred” with the probation officer’s assessment and affixed his signature to that letter. Additionally, although the State, in its motion to revoke Perkins’s probation, alleged that Perkins remained on “informal” probation after June 29, 2015 (C. 18), nothing in the record on appeal indicates that the circuit court intended that Perkins remain on “informal” probation after June 29, 2015; rather, the letter signed by the circuit court clearly explained that “Perkins -will reach his end of sentence date ” on June 29, 2015.

Because Perkins’s probation officer filed a letter with the circuit court explaining that Perkins would reach the end of his sentence oh June 29, 2015, and the circuit court signed that letter “concurring” with the probation officer’s “end of sentence date,” Perkins should have been discharged from his probation on June 29, 2015. See Rule 27.3(b), Ala. R.Crim. P. (“At any time during a term of probation, the sentencing court may terminate probation and discharge the probationer absolutely, after notice to the prosecutor. Early termination may result from a motion of the probationer or the probation officer, or on the initiative of the court.”). Thus, the circuit court did not have jurisdiction to initiate a probation-revocation proceeding against Perkins on November 6, 2015, or to revoke his probation on January 14, 2016. Accordingly, the circuit court’s January 14, 2016, order revoking Perkins’s probation is reversed and we remand this case to the circuit court for that court to set aside its order revoking Perkins’s probation.

REVERSED AND REMANDED.

WINDOM, P.J., and WELCH, KEL-LUM, and BURKE, JJ., concur.

      . The facts and procedural history of this case are taken largely from the State’s motion to revoke Perkins’s probation, which facts are adopted by Perkins in his brief on appeal.

      . Officer Maholovich's letter also includes the handwritten notation: "Deft to be released.” (Supplemental Record on Appeal, C. 16.) Although that handwritten notation appears next to the circuit court's signature, the record on appeal does not demonstrate who made that handwritten notation.

      3. Although the State, in its brief on appeal and in its motion to revoke Perkins’s probation, alleges that Perkins began serving his term of probation on April 4, 2013, in her letter to the circuit court, Officer Maholovich explained that Perkins began serving his term of probation on March 18, 2013. (Supplemental Record on Appeal, C. 16.)

      . Although the State in its brief on appeal references the circuit court’s February 20, 2014, order partially revoking Perkins’s probation, the record on appeal does not include any order dated February 20, 2014, nor does it include any order partially revoking Perkins’s probation.

      . We have recognized that
      "[initiation of proceedings to revoke probation, such as the issuance of an arrest warrant or the filing of a delinquency report by a probation officer, see Young v. State, 552 So.2d 879 (Ala.Crim.App.1989), tolls the running of the probationary term if the process is begun before the probationary term ends, see Owens[ v. State, 728 So.2d 673 (Ala.Crim.App.1998)], and a trial court retains jurisdiction to revoke probation even after the probationary period has expired so long as the revocation proceedings were initiated within the maximum probationary term, see Sherer[ v. State, 486 So.2d 1330 (Ala.Crim.App.1986) ], and Watkins[ v. State, 455 So.2d 160 (Ala.Crim.App.1984)].’"

        Jones, 158 So.3d at 503. In this case, the circuit court did not initiate probation-revocation proceedings against Perkins until November 6, 2015—over four months after his June 29, 2015, end-of-sentence date. Thus, Perkins’s term of probation was not tolled by the initiation of the probation-revocation proceedings.


author: PER CURIAM. PARIENTE, J., PERRY, Senior Justice,

text:
    Louis B. GASKIN, Appellant, v. STATE of Florida, Appellee.
    No. SC15-1884
    Supreme Court of Florida.
    [January 19, 2017]
    James Vincent Viggiano, Jr., Capital Collateral Regional Counsel—Middle Region, James Lawrence Driscoll, Jr., David Dixon Hendry, and Gregory W. Brown, Assistant Capital Collateral Regional Counsel—Middle Region, Tampa, Florida, for Appellant

      Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Scott Andrew Browne, Senior Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

This case is before the Court on appeal from an order denying appellant Louis B. Gaskin’s motion to vacate a judgment for two convictions of first-degree murder and two sentences of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns posteonviction relief from two capital convictions for which two sentences of death were imposed, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. For the following reasons, we affirm Gas-kin’s convictions and sentences.

The facts of this case were presented in this Court’s opinion on direct appeal. Gaskin v. State, 591 So.2d 917 (Fla. 1991). In 1989, Gaskin was convicted of two counts of first-degree murder (premeditated and felony murder) for the death of Robert Sturmfels, two counts of first-degree murder (premeditated and felony murder) in the death of Georgette Sturmfels, one count of armed robbery of the Sturmfels’ home, one count of burglary of the Sturm-fels’ home, one count of attempted first-degree murder of Joseph Rector, one count of armed robbery of Joseph and Mary Rector, and one count of burglary of the Rectors’ home. Id. at 918. In 1990, after the penalty phase, the -jury recommended two death sentences for both mut-ders by a vote of eight to four. IcL at 919. The trial court sentenced Gaskin to death. Id. In 1991, this Court affirmed Gaskin’s premeditated murder convictions and two death sentences, reversed the two felony murder convictions that were duplicative of the premeditated murder convictions, and remanded to the trial court for proceedings consistent with its decision. Id. at 922. In 1993, Gaskin’s sentences became final when the United States Supreme Court denied certiorari review. Gaskin v. State, 510 U.S. 925, 114 S.Ct. 328, 126 L.Ed.2d 274 (1993). In 2002, this Court affirmed the lower court’s denial of Gas-kin’s initial motion for posteonviction relief. Gaskin v. State, 822 So.2d 1243 (Fla. 2002). In 2014, pursuant to this Court’s 1991 directive, the lower court vacated one felony murder conviction for each victim. In 2015, Gaskin filed his first successive motion to vacate the judgment of conviction, challenging the premeditated murder convictions and death sentences, and alleging that the jury’s use of both premeditated murder and felony murder as aggravating circumstances amounted to improper doubling of aggravators. The posteonviction court summarily denied Gaskin’s claims. Gaskin appealed to this Court, arguing that the posteonviction court erred in summarily denying his claim that his convictions should be vacated because the jury considered two vacated convictions to- recommend the death sentences. Gaskin also argues that he is entitled to relief in light of the United States Supreme Court’s decision Hurst v. Florida, — U.S. ——, 136 act. 616, 193 L.Ed.2d 504 (2016). For the reasons below, we affirm the denial of posteonviction relief.

Standard of Review

A successive rule 3.851 motion may be denied without an evidentiary hearing if the records of the case conclusively show that the movant is not entitled to relief. Reed v. State, 116 So.3d 260, 264 (2013). This Court reviews the circuit court’s decision to summarily deny a successive rule 3.851 motion de novo, accepting the movant’s factual allegations as true to the extent that they are not refuted by the record, and affirming the ruling if the record conclusively shows that the movant is not entitled to relief. Id.

Merits

Gaskin’s claim of improper doubling is untimely and procedurally barred because the issue could have and should have been raised on direct appeal.

In general, a postconviction movant must file for' relief “within 1 year after [the movant’s] judgment and sentence become final.” Fla. R. Crim. P. 3.851(d)(1). A judgment and sentence become final “on the disposition of the petition for writ of cer-tiorari by the United States Supreme Court, if filed.” Fla. R. Crim. P. 3.851(d)(1)(B). Gaskin argues that his judgment became final when the circuit court issued the corrected judgment in 2014. This is contrary to rule 3.851: Gaskin’s sentence became final in 1993, when the United States Supreme Court denied certiorari review. Gaskin, 510 U.S. at 936, 114 S.Ct. 328; see State v. Johnson, 122 So.3d 856 (Fla. 2013) (Johnson’s sentence became final in 2000, when the United States Supreme Court denied certiorari review).

Additionally, Gaskin’s claim is procedurally barred because Gaskin had the opportunity to challenge not only his dupli-cative convictions on direct appeal but to challenge his sentences on the basis that the jury erroneously considered the doubled convictions in recommending two death sentences. See Dennis v. State, 109 So.3d 680, 698 (Fla. 2012) (holding that claims were procedurally barred because the movant could have raised them on direct appeal).

Finally, Gaskin’s argues that he is entitled to relief in light of Hurst v. Florida. Because Gaskin’s sentence became final in 1993, Gaskin, is not entitled to relief under Hurst v. Florida. See Asay v. State, 210 So.3d 1, 29-30, 2016 WL 7406538 at *13 (Fla. 2016) (holding that Hurst is not retroactive to cases that became final before the United States Supreme Court decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)). Accordingly, we affirm the circuit court’s, order summarily denying Gaskin’s successive postconviction motion.:

It is so ordered.

LABARGA, C.J., and QUINCE, and. POLSTON, JJ., concur,

CANADY, J., concurs in result.

PARIENTE, J., concurs in part-and dissents in part with an opinion.

PERRY, Senior Justice, concurs in part and dissents in part with an opinion.

LEWIS, J., dissents.

PARIENTE, J.,

concurring in part and dissenting in part.

While I agree with the majority’s conclusion that Gaskin’s claim of improper doubling is untimely and procedurally barred, I write separately to express my disagreement with denying Gaskin relief under Hurst v. Florida and Hurst. As I stated in my concurring in part and dissenting in part opinion in Asay, fundamental fairness concerns emanating from the constitutional rights at stake require us to hold Hurst fully retroactive to all death sentences imposed under Florida’s prior,, unconstitutional capital sentencing scheme. Asay, 210 So.3d at 32, 2016 WL 7406538 (Fla. Dec. 22, 2016) (Pariente, J., concurring in part and dissenting in part); see Hurst v. Florida, 136 S.Ct. at 622 (holding;Floridá’s' capital sentencing scheme unconstitutional). Thus, I would hold that Hurst applies retroactively to Gaskin. Further determining that the Hurst error in Gaskin’s sentence was not harmless beyond a reasonable doubt, I would grant Gaskin a new penalty phase.

Short of holding Hurst fully retroactive, I would at least apply Hurst to Gaskin because he, through his attorneys, challenged the constitutionality of Florida’s capital sentencing statute at trial in 1990 and, again, on direct appeal in 1991. This Court summarily rejected Gaskin’s claim on direct appeal, stating: “We also reject without discussion Gaskin’s multiple assertions regarding the constitutionality of the capital-sentencing statute as each of his arguments has previously been decided adversely to his position.” Gaskin v. State, 591 So.2d 917, 920 (Fla. 1991). Although our opinion did not detail Gaskin’s constitutional challenges, the record on appeal reveals that Gaskin argued that “section 921.141 ... was unconstitutional on its face” for the reasons espoused by the United States Supreme Court in Ring and Hurst v. Florida and then further explained by this Court in Hurst:

[Bjefore a sentence of death may be considered by the trial court in Florida, the jury must find the existence of the aggravating factors proven beyond a reasonable doubt, that the aggravating factors are sufficient to impose death, and that the aggravating factors outweigh the mitigating circumstances.
These same requirements existed in Florida law when Hurst was sentenced in 2012—although they were consigned to the trial judge to make.
We also conclude that, just as elements of a crime must be found unanimously by a Florida jury, all these findings necessary for the jury to essentially convict a defendant of capital murder— thus allowing imposition of the death penalty—are also elements that must be found unanimously by the jury. Thus, we hold that in addition to unanimously finding the existence of any aggravating factor, the jury must also unanimously find that the aggravating factors are sufficient for the imposition of death and unanimously, find that the aggravating factors outweigh the mitigation before a sentence of death may be considered by the judge.

Hurst, 202 So.3d at 53-54 (footnotes omitted).

Amid a myriad of arguments as to how Florida’s capital sentencing scheme violated the fundamental rights of defendants facing the death penalty in Florida, Gaskin specifically argued that the statute “does not require a sentencing recommendation by a unanimous jury or a substantial majority of the jury and thus results in the arbitrary and unreliable application of the death sentence and denies the right to a jury and to due process of law.” Among Gaskin’s several motions, filed through counsel, disputing the validity of Florida’s capital sentencing scheme was a “Motion for Use of Special Verdict Form for the Unanimous Jury Determination of Statutory Aggravating Circumstances,” citing among other constitutional bases the Sixth Amendment to the United States Constitution and article I, section 22, of the Florida Constitution. State v. Gaskin, No. 90-01/07/17 (Fla. May 10, 1990). Gaskin also filed a separate motion to declare unconstitutional section 921.141, Florida Statutes, broadly arguing many of the deficiencies in the statute that have now been recognized as constitutionally impermissible, such as jury overrides and the bare majority jury recommendation. Most closely resembling Hurst v. Florida and Hurst, Gaskin argued that section 921.141 is facially unconstitutional because the “jury recommendation need not be unanimous,” nothing “require[s] the court to instruct the jury that to return a recommendation of death, the jury must be convinced beyond every reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances,” “the jury is not required to list the specific aggravating circumstances they have found beyond a reasonable doubt when they recommend the death penalty,” and “it permits the trial judge to consider aggravating circumstances in imposing the death sentence that the advisory jury may not have considered or that the advisory jury may have rejected.” Id at 7-9. Even without a finding a full retro-activity, under Justice Lewis’s concurring in result opinion in Asay, Hurst would apply retroactively to Gaskin under James v. State, 615 So.2d 668 (Fla. 1993), because Gaskin asserted, presented, and preserved a challenge to the lack of jury factfinding in Florida’s capital sentencing procedure. Asay, 210 So.3d at 30, 2016 WL 7406538, at *20 (Lewis, J., concurring in result).

Because I would apply Hurst to Gaskin’s case, I must now determine whether the Hurst error in Gaskin’s penalty phase was harmless beyond a reasonable doubt. On remand from the United States Supreme Court, this Court determined that Hurst error is capable of harmless error review. Hurst, 202 So.3d at 67. In Hurst, we established the test for reviewing these errors for harmlessness:

Where the error concerns sentencing, the error is harmless only if there is no reasonable possibility that the error contributed to the sentence. See, e.g., Zack v. State, 753 So.2d 9, 20 (Fla. 2000). Although the harmless error test applies to both constitutional errors and errors not based on constitutional grounds, “the harmless error test is to be rigorously applied,” [State v.] DiGuilio, 491 So.2d [1129,] 1137 [Fla. 1986], and the State bears an extremely heavy burden in cases involving constitutional error. Therefore, in the context of a Hurst v. Florida error, the burden is on the State, as the beneficiary of the error, to prove beyond a reasonable doubt that the jury’s failure to unanimously find all the facts 'necessary for imposition of the death penalty did not contribute- to •Hurst’s death sentence in this case. We reiterate:
The' test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact.
DiGuilio, 491 So.2d at 1139. “The question is whether there is a reasonable possibility that the error affected the [sentence].” Id.

202 So.3d at 68 (last alteration in original). As applied to the right to a jury trial with regard to the facts necessary to impose the death penalty, it must be clear beyond a reasonable doubt that a rational jury would have unanimously found that there were sufficient aggravating factors that outweighed the mitigating circumstances.

Gaskin’s sentences became final in 1993. Majority op. at 400. The penalty phase jury voted eight to four to recommend a sentence of death for both murders. Majority op. at 400. So not only are we unable to determine beyond a reasonable doubt that the jury unanimously made the requisite findings to impose death as required by Hurst, but most significantly in Gas-kin’s case, the jury may have relied on invalid aggravating factors to reach its mere eight - to four recommendation for death. See majority op. at 400. As • the majority explained, this Court reversed and vacated Gaskin’s sentences of felony murder, which the sentencing jury.likely considered in its weighing process. Majority op. at 400. Thus, for the reasons stated above and under the test set forth by this Court in Hurst for determining whether Hurst errors are harmless beyond a reasonable doubt, I would conclude that any error in Gaskin’s nonunanimous sentencing recommendation was not harmless beyond a reasonable ■ doubt and Gaskin should, therefore, receive a new penalty phase under Hurst.

PERRY, Senior Justice,

concurring in part and dissenting in part.

I concur in the majority’s conclusion that Gaskin’s claim of improper doubling is untimely and proeedurally barred. See majority op. at 401. However, I respectfully dissent from the majority’s decision not to apply Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 604 (2016), retroactively.

I dissent because Hurst v. Florida does apply retroactively to Gaskin’s easel In his present appeal, Gaskin once again challenges the constitutionality of Florida’s death penalty statute. The majority concluded that Gaskin was not eligible for Hurst v. Florida relief because Gaskin’s sentences became final in 1993, before the United States Supreme Court decided Ring v. Arizona, 536 U.S. 684, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). See majority op. at 401.

For the reasons I dissented in part in Asay, I cannot agree with the majority’s decision to limit the retroactive effect of Hurst v, Florida to those cases that were not final before Ring. See Asay v. State, 210 So.3d 1, 37, 2016 WL 7406538 at *26 (Fla. 2016) (Perry, J., dissenting). I would find that Hurst v. Florida applies retroactively regardless of whether a sentence became final before or after the Ring decision.

      . Hurst v. Florida (Hurst v. Florida), 136 S.Ct. 616 (2016).

      . Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016).

      . Asay, 210 So.3d at 26, 2016 WL 7406538 (Fla. Dec. 22, 2016),

      . Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

      . Gaskin v. State, No. SC76-326, Initial Br. of Appellant (Fla. Mar. 5, 1991), at 70; accord Gaskin v. State, Nos. 90-01; 90-07; 90-17, Motion to Preclude Imposition of the Death Penalty (Flagler Cty. Cir. Ct. Fla. June 5, 1990), at 7 (“Section 921.141 ... is unconstitutional on its face because the jury recommendation need not be unanimous, thereby depriving the Defendant to the rights to Due Process and to a unanimous jury verdict, in violation of Article I, Section 9, 16 and 22 of the Florida Constitution and the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.”).

      .The constitutional arguments made on behalf of Gaskin were a product of the advocacy of his lawyer Christopher S, Quarles, an assistant public defender and a zealous advocate for his death penalty clients for decades.

      . Gaskin v. State, Motion to Preclude Imposition of the Death Penalty, Nos. 90-01; 90-07; 90-17 (Flagler Cty. Cir. Ct. Fla. June 5, 1990), at 4 ("Section 921.141 ... is unconstitutional on its face because a jury recommendation of life in prison need not be followed by the trial court judge.”); id at 5 ("Section 921.141 ... is unconstitutional on its face because it permits the trial judge to overrule a jury life recommendation, contrary to the clear expression of the conscience of the community.” (citing McCaskill v. State, 344 So.2d 1276, 1280 (Fla. 1977)).

      . See Gaskin v. State, Motion to Prohibit Any Reference to the Advisory Role of the Jury, Nos. 90-01; 90-07; 90-17 (Flagler Cty. Cir. Ct. Fla. June 5, 1990), at 2 ("Reference to the advisory role of the jury would deny the Defendant due process of law and a fair trial ....”). See generally Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 504; Ring, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556.