author: THOMPSON, Presiding Judge. DONALDSON, Judge, dissenting.

text:
    CITY OF HOOVER v. COVENANT BANK
    2160044
    Court of Civil Appeals of Alabama.
    April 28, 2017 Rehearing Denied July 21, 2017 Certiorari Denied September 15, 2017
    Alabama Supreme Court 1160964
    Wayne Morse, Jr., and Robert M. Rosenburg of Waldrep, Stewart & Kendrick, LLC, Birmingham, for appellant.
    Jesse P. Evans III and Martin W. Evans of Evans & Evans, Birmingham, for appellee.
   THOMPSON, Presiding Judge.

The City of Hoover ("Hoover") appeals from a judgment of the Jefferson Circuit Court ("the trial court") in favor of Covenant Bank ("Covenant"). The judgment enjoined Hoover from, among other things, enforcing its zoning ordinance in a manner that prevented a proposed use of certain property.

The record indicates the following. Covenant owns real property located on the corner of Highway 119 and Doug Baker Boulevard in Shelby County ("the property"). The property is located within Hoover's geographic boundaries. Covenant entered into a contract to sell the property to High Tide Oil Company ("High Tide") on the condition that Covenant obtain conditional-use approval from Hoover for a gasoline station with a convenience store on the property. The property is zoned as being within a "C-2 Community Business District" pursuant to Article VI, Section 11, of the Zoning Ordinance of Hoover ("the zoning ordinance"). The zoning ordinance contains certain specified conditional permissible uses of the property after approval is obtained from Hoover, including use as a "gasoline service station."

Covenant filed an application to obtain a conditional-use permit to construct a gasoline station on the property at issue. In November 2014, Hoover's Planning and Zoning Commission ("the commission") held a public hearing on Covenant's application. The minutes from the hearing, which were admitted into evidence and are included in the record before this court, indicate that ten owners of nearby homes and businesses spoke in opposition to the application. John Ritchey, who lives in the house directly behind the site of the proposed gasoline station, expressed concern about "the noise and the traffic and the lighting." He also told the commission he was "very concerned with spillage" that will drain onto his property, including the creek on his property. Another homeowner raised concerns about the public-health risks posed by a gasoline station, not just from tank leakage but from small spills that routinely occur when people fill the gasoline tanks of their vehicles. Another person spoke out about the health risks from the exhaust of idling cars and trucks, the smell of gasoline fumes, and the smell of the dumpster that would be located at the gasoline station. A number of people who live and work in the area were concerned about the traffic congestion a gasoline station would bring to the area, environmental concerns, and the risk of an increase in crime. It was pointed out that there were several other gasoline stations within a mile of the proposed site. One man, a quadriplegic, voiced his concerns that, with the increased chances of fire and crime, he would have difficulties protecting himself if something were to happen at the gasoline station. He also talked about the difficulty he would have sleeping because of the increased lighting at the gasoline station. At the close of the hearing, the commission recommended by a vote of four to three that the Hoover City Council ("the city council") approve Covenant's application for the conditional-use permit subject to certain specified restrictions. Those restrictions were acceptable to Covenant.

A city council "work session" was held on January 15, 2015, during which the proposed conditional-use permit was discussed. One of the council members asked Robert House, a member of the commission, whether Hoover had ever granted a conditional-use permit for a gasoline station located as close to a residential lot as the proposed gasoline station was to the house nearest the proposed site in this case. House explained that, although some gasoline stations had been "grandfathered in" in the annexation process, he did not believe that Hoover had approved one so close to a residence.

The city-council members noted that there had been "a lot of opposition" to the proposed gasoline station at the commission meeting. Council members also noted that the combination gasoline station/convenience store would probably apply for a license to sell alcoholic beverages. Again, House was asked whether Hoover had approved such applications for a business 50 feet from a residential neighborhood. House told the council members that there had "not been many."

On January 20, 2015, the city council held a public hearing to consider the conditional-use permit for the proposed gasoline station/convenience store. According to the minutes from the public hearing, which were submitted into evidence and are included in the record on appeal, the attorney for Covenant, who is also representing it on appeal, gave a presentation in which he discussed the zoning ordinance and the uses permitted at the site of the proposed gasoline station. The minutes state that the attorney said that, in his opinion, some of the permitted uses "would be much worse than what [Covenant was] proposing." The attorney noted that the zoning ordinance prohibited a car wash or automobile-repair work, oil changes, and the like at the site. He also described the building as a "typical glass and brick type of convenience store that will dispense gasoline," and he stated that all regulations and requirements pertaining to a gasoline station would be met. The attorney explained that the request for the conditional-use permit for the gasoline station was in compliance with the zoning ordinance and that he knew of no other conditions that would compel the city council to do anything other than grant the permit. No one else spoke in favor of the conditional-use permit.

Two people spoke against granting the permit during the hearing. Don Erwin, who represented the Barber Companies, which owns the shopping center across the street from the proposed gasoline station, provided the city council with a list of objections. Erwin said that the proposed use was too intensive for the area because, he said, it would entail increased traffic, night lighting, gasoline and beer trucks, and similar problems. According to the minutes of the hearing, Erwin also said that Hoover had a "long history" of not locating gasoline stations next to residential areas and that, if the permit were granted, the city council would be going against that practice. He also stated that the Barber Companies could not find anyone in the neighborhood who supported the proposed use, although, he said, there were many who opposed it. Finally, Erwin said that the proposed use was "so inappropriate" that the Barber Companies thought it had to oppose the development even though it had never before come out publicly against a commercial development.

Randy Haddock of the Cahaba River Society also spoke against the proposed gasoline station. He discussed the problem with potential increased runoff of storm water at the site when the site was paved, which could cause flooding problems. After hearing the presentations made during the public hearing, four of the city-council members present voted against granting Covenant's request for a conditional-use permit and one abstained.

On April 8, 2015, Covenant filed a petition in the trial court for a writ of mandamus and a declaratory judgment. Covenant named as respondents Hoover and seven city-council members. The city-council members were later dismissed by consent. On February 26, 2016, Covenant filed its second amended complaint, asserting that Hoover had failed to follow the criteria set out in the zoning ordinance and, among other things, that Hoover's actions were unconstitutional.

At the trial of the matter, Russell Jolly, the vice president of High Tide, testified regarding High Tide's agreement to purchase the property, i.e., the site of the proposed gasoline station, only if Covenant obtained a conditional-use permit from Hoover. Jolly, who held certifications through the Alabama Department of Environmental Management ("ADEM") in relation to the installation and removal of underground gasoline-storage tanks and gasoline-dispensing systems, testified about the numerous required safety mechanisms that would be in place if the sale were completed and if the property were operated as proposed.

Jolly also testified that, before the commission gave its recommendation to grant the conditional-use permit, he met with members of the commission, including House. Jolly said that the commission identified a number of conditions with which Covenant would need to comply to obtain conditional-use approval. Those conditions included: 1) the band on the canopy covering the gasoline dispensers could not be internally illuminated; 2) the canopy sign on the east side of the canopy could not be internally illuminated; 3) neon LED strips or accent lighting could not be permitted on the canopy band; 4) canopy lights that shine down on the premises must be recessed in the canopy; 5) exterior light fixtures could not exceed 16 feet in height and must be designed to cast light down on the premises; 6) internally illuminated wall signs would be prohibited on the south and east sides of the building; 7) the store could not operate between midnight and 6:00 a.m.; 8) a buffer must be supplemented with evergreen vegetation as approved by Hoover's landscape architect; and 9) the store could have no outdoor music. Jolly testified that Covenant agreed to all of the conditions and revised the landscape plan to comply with the conditions before the application for a conditional-use permit was submitted to the city council. Jolly testified that he was never informed of any other conditions that Covenant had to meet to obtain conditional-use approval.

L'Tryce Slade, an expert retained by Covenant, testified that, under the zoning ordinance, a convenience store that did not sell gasoline could be located on the property without the necessity of obtaining conditional-use approval. Slade testified that all such stores must comply with ADEM requirements when selling gasoline. Slade testified that the use of the property proposed by Covenant would have no adverse environmental impact. Slade testified that Covenant's application complied with all of the conditional-use requirements of the zoning ordinance and that "gasoline service station" is listed as a conditional use under Section 12.2(b) of the zoning ordinance. Slade also testified that she could not locate any lighting requirements applicable to the property in the zoning ordinance or the source of some of the other conditions recommended by the commission.

House, who was on the commission, testified before the trial court that he had been a city planner for 40 years and had drafted the Hoover zoning ordinance in 1979. He explained that "[c]onditional uses [are] uses which were contemplated by the city as being appropriate in a given zoning district upon further review of a specific site with regard to compatibility" and that "conditional uses are required to go through the same process as rezoning in order for the city to determine the exact location of the property, the site plan characteristics, and the appropriateness of that use for that location." House further explained that the commission makes a recommendation for action to be taken by the city council, after which the commission and the city council hold public hearings to determine whether the use is appropriate in that location, but that the commission's recommendation is not binding on the city council.

House, who testified that he lived near the property, opined that a gasoline service station is not an appropriate use for the property because of the close proximity to residences. He said that the distance between the proposed store and existing residences was 110 feet, and he did not believe that a gasoline station was "appropriate this close to a dwelling." House explained that gasoline stations "by definition are, if not the most, one of the most intense uses of retail or service uses there are. And that is why it is cited as a conditional use in the zoning ordinance." House also said: "It doesn't make sense in any planning approach to put a gas station next to a house when you are trying to employ transitional land uses from the corridor to a residential area."

House went on to say that he believed that locating a gasoline station on the property was not compatible with the neighborhood, office, and commercial uses in the surrounding area. He explained that the incompatibility stemmed primarily from the intensity of the lighting that would be present and, secondarily, that most of the business activity of a gasoline station takes place outside. He also said that, although a gasoline station does not generate traffic, congestion is created because of the high number of vehicles coming in and out of a gasoline station. He cited those concerns, coupled with the long hours of operation of a gasoline station, which would be open until midnight, as reasons why permitting a gasoline station on the property would be "extremely detrimental to the neighboring houses."

House testified that a convenience store with a canopy but without gasoline dispensers could be built on the property without approval from the city council. House testified that there are no written standards regarding lighting requirements for the property but that additional, unwritten standards "with regard to the gasoline service station, would be formulated during approval of a conditional-use process, to look at the site, look at the use and figure out what other standards may be necessary to make it appropriate." House also testified that the city council had approved a conditional-use application for a different gasoline service station near the property but that it was never constructed because of private covenant restrictions.

House also testified that he was concerned with the potential for water-quality degradation because of storm-water runoff in the creek behind the property, but he also testified that potential drainage issues were "satisfactory" before the site plan was submitted to the commission. House also testified that a major roadway was nearby and that petroleum drippings from stopped cars and from cars parked in the shopping-center parking lot across the street from the property could also potentially run into the creek.

On September 12, 2016, the trial court entered a judgment reversing the decision of the city council and ordering the city council to grant Covenant's request for a conditional-use permit to allow the gasoline station to be built, subject to certain conditions enumerated in the judgment primarily regarding the types of outdoor lighting that could be used. In the judgment, the trial court stated that it was applying the deferential standard that, it said, was generally applicable to "legislative decisions of municipal zoning authorities." Under that standard, the trial court wrote,

"the Court must first determine if there is a substantial relationship between the denial and an object of the police powers. Should the Court find that a substantial relationship exists, the Court is due to affirm the decision of the city council of Hoover if the decision is fairly debatable or not arbitrary and capricious. However, before the scheme of fairly debatable is even reached, the zoning authority must show some substantial relationship between its decision and an object of the police powers. Byrd Companies, Inc. v. Jefferson County, 445 So.2d 239 (Ala. 1983). 'That an issue is "debatable" answers but half of the dichotomy. It must also be "fairly" debatable.' Jefferson County v. O'Rorke, 394 So.2d 937, 938 (Ala. 1981)."

The trial court concluded that there was

"no substantial relationship between the denial of Covenant's application for a conditional use and the governmental interests arising from [Hoover's] police powers. Consequently, since [Hoover] can show no substantial relationship between its denial and an object of the police powers, then the question of whether the issue is fairly debatable is not reached."

On October 4, 2016, Hoover filed its notice of appeal to the supreme court. The supreme court transferred the case to this court pursuant to § 12-2-7(6), Ala. Code 1975.

On appeal, Hoover first argues that the trial court misapplied the standard used to determine whether Hoover's classification of the property at issue was substantially related to its police powers.

"Judicial review of municipal decisions regarding zoning ordinances is severely limited. In American Petroleum Equipment & Construction, Inc. v. Fancher, 708 So.2d 129 (Ala. 1997), this Court discussed the standard of review that both the trial court and this Court must apply in reviewing those decisions.
" 'It is settled law that the Alabama Legislature has delegated to municipal legislative bodies, such as city councils, the power and authority to enact zoning ordinances. Section 11-52-76, Ala. Code [1975], provides that "[t]he legislative body of such municipality shall provide for the manner in which such [zoning] regulations and restrictions and the boundaries of such districts shall be determined, established and enforced." The power to amend, supplement, or change zoning ordinances "as may be necessary" from "time to time" is also delegated to municipal legislative bodies. Id. See BP Oil Co. v. Jefferson County, 571 So.2d 1026, 1028 (Ala. 1990), citing Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926).
" 'In Homewood Citizens Association v. City of Homewood, 548 So.2d 142 (Ala. 1989), this Court discussed the law applicable to a court's review of a city's action in zoning cases, stating that "[w]hen a municipal body acts either to adopt or to amend a zoning ordinance, it acts in a legislative capacity and the scope of judicial review of such action is quite restricted."
548 So.2d at 143. The restrictions on this Court's review of the validity of a zoning ordinance have been explained as follows:
" ' " 'Zoning is a legislative matter, and, as a general proposition, the exercise of the zoning power should not be subjected to judicial interference unless clearly necessary. In enacting or amending zoning legislation, the local authorities are vested with broad discretion, and, in cases where the validity of a zoning ordinance is fairly debatable, the court cannot substitute its judgment for that of the legislative authority. If there is a rational and justifiable basis for the enactment and it does not violate any state statute or positive constitutional guaranty, the wisdom of the zoning regulation is a matter exclusively for legislative determination.
" ' " 'In accordance with these principles, it has been stated that the courts should not interfere with the exercise of the zoning power and hold a zoning enactment invalid, unless the enactment, in whole or in relation to any particular property, is shown to be clearly arbitrary, capricious, or unreasonable, having no substantial relation to the public health, safety, or welfare, or ... plainly contrary to the zoning laws.' "
" ' Homewood Citizens Association, 548 So.2d at 143 (quoting 82 Am. Jur. 2d Zoning and Planning § 338 (1976) ). The Court further stated in Homewood Citizens Association that "[t]he burden is upon the party seeking relief from an ordinance to show that the ordinance was not a fairly debatable issue before the municipal governing body." 548 So.2d at 144.' "

H.H.B., L.L.C. v. D & F, L.L.C., 843 So.2d 116, 120-21 (Ala. 2002) (quoting American Petroleum Equip. & Constr., Inc. v. Fancher, 708 So.2d 129, 131 (Ala. 1997) ) (emphasis on "severely limited" added; other emphasis added in American Petroleum ).

In City of Alabaster v. Shelby Land Partners, LLC, 148 So.3d 697, 704-05 (Ala. 2014), our supreme court explained the rules to be applied in determining whether a zoning classification and its application are valid in a given case:

"In zoning cases, we have noted that there are two applicable rules: the 'substantial relationship rule' and the 'fairly debatable rule.' We explained the applicability of these two rules in BP Oil Co. v. Jefferson County, 571 So.2d 1026 (Ala. 1990) :
" ' "The substantial relationship rule is a substantive law, and may be simply stated as follows: In order for a zoning ordinance or regulation to be valid, it must have some substantial relationship to the promotion of the public health, safety, morals, or general welfare. When correctly applied, this rule is not in any manner modified by the fairly debatable rule. The latter rule, being a rule of procedure or application, may be simply stated as follows: If the application of a zoning classification to a specific parcel of property is reasonably subject to disagreement, that is, if the application is fairly debatable, then the application of the ordinance by the zoning authority should not be disturbed by the courts. Of course, it is always a matter for the court to determine whether a zoning authority acted reasonably or fairly, or whether capriciously or arbitrarily. The fairly debatable rule applies to the application of the ordinance and does not modify the requirement that the ordinance itself and the application therefore must have a reasonable relationship to the health, safety, morals, or general welfare." '
" 571 So.2d at 1028-29 (quoting Byrd Cos. v. Jefferson Cnty., 445 So.2d 239, 247 (Ala. 1983) ). We have further described the 'fairly debatable' rule as follows:
" ' "The 'fairly debatable' rule concerns the application of a zoning classification to a specific parcel of property. Byrd Companies v. Jefferson County, 445 So.2d 239, 247 (Ala. 1983). ' "[I]f the application of a zoning classification to a specific parcel of property is reasonably subject to disagreement, that is, if its application is fairly debatable, then the application of the ordinance by the zoning authority should not be disturbed by the courts." ' Id., quoting Davis v. Sails, 318 So.2d 214 (Fla. Dist. Ct. App. 1975). Thus, if the zoning ordinance is 'subject to controversy or contention' or 'open to question or dispute,' it is 'fairly debatable' and should not be disturbed by the courts. Aldridge v. Grund, 293 Ala. 333, 343, 302 So.2d 847, 854 (1974) ; Cudd v. City of Homewood, 284 Ala. 268, 271, 224 So.2d 625, 628 (1969)." '
" H.H.B., L.L.C. v. D & F, L.L.C. ], 843 So.2d [116] at 121 [ (Ala. 2002) ] (quoting American Petroleum [Equip. & Constr., Inc. v. Fancher], 708 So.2d [129] at 131 [ (Ala. 1997) ]."

In applying the rules set forth above, the trial court first had to determine whether Hoover's zoning requirement that a conditional-use permit was needed for the construction and operation of a gasoline station in a C-2 community business district is substantively valid and bears a reasonable relation to the promotion of the health, safety, morals, or general welfare of the community. See City of Alabaster, 148 So.3d at 705.

In this case, House testified that a gasoline station is among the most intense uses of retail or service property there is and that, therefore, "that is why it is cited as a conditional use in the zoning ordinance." The evidence demonstrated that the location of a gasoline station involves a number of concerns, including environmental issues, concerns about traffic congestion, storm-water drainage issues, concerns about crime, and the appropriateness of locating a gasoline station so near to homes, which affects the character of a neighborhood. Those concerns clearly bear a substantial relationship to the promotion of the health, safety, morals, and general welfare of the community.

The next step in our review is whether the application of the zoning requirements to the property, i.e., the specific site where the gasoline station was to be built, was reasonably subject to disagreement, that is, if the application was fairly debatable. Our supreme court discussed the application and meaning of the term "fairly debatable" in City of Birmingham v. Morris, 396 So.2d 53, 55 (Ala. 1981) :

"A zoning determination is said to be fairly debatable 'when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity,' Miami Beach v. Lachman, 71 So.2d 148 (Fla. 1953), or where the evidence provides a basis for a fair difference of opinion as to the application of the determination to particular property. See generally, 1 R. Anderson, American Law of Zoning, § 3.20 (2nd ed. 1977).
"By virtue of this 'fairly debatable' rule, the role of the judiciary in zoning cases is extremely limited and the dimensions of judicial review are narrowly confined. 4 E. Yockley, Zoning Law and Practice § 25-2 (4th ed. 1979); 4 R.
Anderson, American Law of Zoning § 25.26 (2nd ed. 1977). Courts must recognize that zoning is a legislative function committed to the sound discretion of municipal legislative bodies, not to the courts. Waters v. City of Birmingham, 282 Ala. 104, 209 So.2d 388 (1968) ; Marshall v. City of Mobile, 250 Ala. 646, 35 So.2d 553 (1948). As a result, local governing authorities are presumed to have a superior opportunity to know and consider the varied and conflicting interests involved, to balance the burdens and benefits and to consider the general welfare of the area involved. Episcopal Foundation of Jefferson County v. Williams, 281 Ala. 363, 202 So.2d 726 (1967) ; Leary v. Adams, 226 Ala. 472, 147 So. 391 (1933). They, therefore, must of necessity be accorded considerable freedom to exercise discretion not diminished by judicial intrusion. Walls v. City of Guntersville, 253 Ala. 480, 45 So.2d 468 (1950). Nevertheless, this discretion is not unbounded, and local authorities may not, under the guise of legislative power, impose restrictions that arbitrarily and capriciously inhibit the use of private property or the pursuit of lawful activities. When such arbitrary and capricious action is made apparent, a reviewing court will not hesitate to disturb the zoning determination as a clear abuse of discretion."

In this case, the distance between the proposed gasoline station and the residential area is 110 feet. There are no "buffer businesses" that would allow for a gradual increase in the intensity of the use of the property between the residential neighborhood and the gasoline station. As House testified: "It doesn't make sense in any planning approach to put a gas station next to a house when you are trying to employ transitional land uses from the corridor to a residential area." He also testified that he did not believe that Hoover had ever given approval for a gasoline station so close to a residence. People who reside in the neighborhood and other businesses in the neighborhood expressed opposition to the location of the gasoline station. Other than the attorney representing Covenant, which obviously has a vested interest in obtaining the conditional-use permit, no one who spoke at the commission meeting or before the city council favored using the site as a gasoline station. The neighbors expressed concern that the dispensing of gasoline, with its flammable nature, its odor, and its potential to negatively impact the environment, posed a health risk, if not an outright danger, to their neighborhood that is not present at an enterprise that operates only as a convenience store, which could have been constructed on the property without the need for a conditional-use permit. Concerns were also raised regarding traffic congestion, lighting issues, and outdoor noise that accompany the operation of a gasoline station.

Use of the property at issue as a gasoline station is "reasonably subject to disagreement," that is, allowing the conditional use of the property as a gasoline service station is "fairly debatable." Under the standard of review the trial court was to apply, see City of Birmingham and City of Alabaster, supra, the city council is presumed to have a superior opportunity to know and consider the varied and conflicting interests involved in this matter, to balance the burdens and benefits, and to consider the general welfare of the area involved. The city council carried out its mandate and denied the conditional-use permit. Based on the "severe limitations" of its review of this action, the trial court should not have disturbed the city council's decision. By doing so, the trial court improperly substituted its judgment for that of the city council.

For the reasons set forth above, the judgment reversing the city council's decision is itself reversed, and the cause is remanded to the trial court for it to enter a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Pittman, Thomas, and Moore, JJ., concur.

Donaldson, J., dissents, with writing.

DONALDSON, Judge, dissenting.

In my view, the record in this case shows that a governmental entity is dictating how privately owned real property may be used based on the current preference of the government rather than upon standards established in advance that can be uniformly applied in a non-arbitrary manner. The discretion of local governing authorities to proscribe certain uses of private property is well established, but that discretion

"is not unbounded, and local authorities may not, under the guise of legislative power, impose restrictions that arbitrarily and capriciously inhibit the use of private property or the pursuit of lawful activities. When such arbitrary and capricious action is made apparent, a reviewing court will not hesitate to disturb the zoning determination as a clear abuse of discretion."

City of Birmingham v. Morris, 396 So.2d 53, 55 (Ala. 1981).

Covenant Bank ("Covenant") entered into a contract to sell property it owns located within the geographical limits of the City of Hoover ("the property") to High Tide Oil Company ("High Tide"). The contract was conditioned upon Covenant's obtaining conditional-use approval from the City of Hoover ("Hoover") to construct and operate a gasoline service station with a convenience store on the property. Hoover's zoning ordinance contains certain specified permissible uses of the property, including use as a "gasoline service station," conditioned on Hoover's approval. Covenant met with Hoover's Planning and Zoning Commission ("the Commission") and agreed to numerous conditions recommended by the Commission. The Commission recommended to the Hoover City Council that Covenant's application for conditional use be granted. The application was denied without an explanation.

The record from the proceedings before the trial court show that Hoover's denial of Covenant's application was based in part on concerns regarding the lighting that would be used on the canopy over the proposed gasoline dispensers. The evidence established, however, that a convenience store with the exact same lighting could be built and operated on the property under the existing zoning ordinance without any additional governmental approval. Therefore, concerns over the lighting could not serve as a legitimate reason to prevent the proposed use of the property.

The other basis for the denial was expressed by a witness for Hoover who opined that a business dispensing gasoline would not be "appropriate" in the location and was not compatible with the area. The witness, who lived near the property, opined that "[i]t doesn't make sense in any planning approach to put a gas station next to a house when you are trying to employ transitional land uses from the corridor to a residential area." The evidence indicates that Hoover had previously approved a gasoline station near the proposed site that had not been built based on reasons not associated with government action. Although Hoover could certainly establish restrictions on the location and operation of businesses dispensing gasoline in residential areas, or at least establish guidelines to follow when considering whether to permit such businesses, the problem here is that Hoover did not establish any such guidelines or restrictions in advance, leaving it to personal preferences as to compatibility, appropriateness, and what makes "sense." Accordingly, the denial of Covenant's application for conditional-use approval appears to be based on an arbitrary, ad hoc governmental preference review. See Smith v. City of Mobile, 374 So.2d 305, 309 (Ala. 1979) (invalidating a governmental restriction on a proposed use of a lot on the basis that the proposed use would be " 'out of character with other lots in the area' " when the discretionary determination enforcing the restriction was "unguided by uniform standards, and capable of arbitrary application").

Further, the evidence did not establish that the addition of the gasoline dispensers to the property would present any issues adversely affecting the safety, health, morals, or welfare of the surrounding area in this particular case.

"It is no longer subject to debate that governmental entities have the authority to zone within the police power. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). However, a zoning ordinance may be invalid as applied to a particular parcel of land if the application of the regulation to the land bears no substantial relationship to the objects of the police power. What are the objects of the police power? The promotion of the health, safety, morals, and general welfare of the community. Leary v. Adams, 226 Ala. 472, 147 So. 391 (1933). In Hall v. Jefferson County, 450 So.2d 792 (Ala. 1984), this Court said that 'property ownership should, and does, bring with it freedom to use one's possession as the owner deems appropriate, subject, of course, to reasonable restraints for the general health, safety or public welfare,' and that '[a]bsent the need for such reasonable impediments, the landowner's "bundle of rights" should remain inviolate.' Id. at 796."

BP Oil Co. v. Jefferson Cty., 571 So.2d 1026, 1028 (Ala. 1990).

The undisputed evidence established that High Tide would be required to comply with requirements of the Alabama Department of Environmental Management with respect to the gasoline dispensers and that there were numerous safety mechanisms in place to prevent any potential hazards from occurring. In particular, a witness for Covenant testified to specific safety mechanisms used to prevent the unfettered dispensing of gasoline in the event that a vehicle collided with a dispenser or a gasoline nozzle was left dispensing gasoline outside of a vehicle's gasoline tank.

The trial court noted the similarities between the situation at hand and the facts underlying Hall v. Jefferson County, 450 So.2d 792 (Ala. 1984). In Hall, the only difference in the classification applicable to Hall's property and the classification sought by a rezoning application was that the classification sought allowed for the sale of alcohol for off-premise consumption. Id. at 796-97. The supreme court held that the basic use of the property would not change and that the refusal to rezone was not a proper exercise of police powers. Id. Here, the trial court specifically found that

"[t]he evidence in the case at bar is more compelling than in Hall. Not only will the basic use not change, but the exact structure shown on Covenant's Site Plan, Plaintiff's Exhibit 13, could be built under the present zoning classification without the conditional use. The only difference in what can be presently developed on the land and Covenant's proposed use is that there would be gasoline dispensers under the canopy."

It was undisputed that Covenant could erect a convenience store without the gasoline dispensers with the same canopy lighting. Although the personal preferences of the government officials and neighbors might have been against permitting the conditional use, Hoover did not establish that the health, safety, morals, or general welfare of the community would be adversely affected by the proposed use. The evidence presented did not demonstrate a substantial relationship between the decision to deny approval of the proposed use of the property and the proper exercise of governmental police powers. The trial court's extensive findings of fact and conclusions of law are supported by the evidence. Accordingly, I would affirm the judgment.

      The property is more particularly described as: "Lot 1, according to the Survey of Village at Lee Branch, Sector 2, as recorded in Map Book 33, Page 3, in the Probate Office of Shelby County, Alabama."


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    J.S. v. L.M.
    2160292
    Court of Civil Appeals of Alabama.
    July 14, 2017 Certiorari Denied September 15, 2017
    Alabama Supreme Court 1160925 Ginette A. Dow, Bessemer, for appellant.
    Randall W. Nichols, Anne Lamkin Durward, and Stephanie Lanier Weems of Massey, Stotser & Nichols, P.C., Birmingham, for appellee.
   THOMAS, Judge.

J.S. ("the mother") and L.M. ("the father") are the parents of a child ("the child") who was born in October 2003. The mother and the father were never married to one another; thus, the action between the parents began in the Jefferson Family Court ("the juvenile court") in a proceeding that was assigned case no. CS-04-47 ("the juvenile-court action"). See Ex parte L.N.K., 64 So.3d 656, 657-58 (Ala. Civ. App. 2010) ("[T]he Jefferson Family Court acted as the juvenile court for the Tenth Judicial Circuit."); see also Ex parte T.M., 210 So.3d 614, 615 n.1 (Ala. Civ. App. 2016) ("Although the filings and orders from the court in Calhoun County that are before this court identify the 'Calhoun Circuit Court' as the court in which the alleged father's paternity action was commenced, that action was assigned a 'CS' case number, which indicates that the circuit court was acting as a juvenile court.")

Although no such order appears in the record, the parties agree that on September 9, 2013, the juvenile court awarded the mother sole physical custody of the child subject to the father's visitation with the child on the first and third weekends of each month ("the visitation provision"). The dispute giving rise to this appeal began in 2015 when the mother, who had resided in Birmingham, relocated to Texas. Again, although no order regarding the relocation appears in the record, the parties agree that the father filed a motion objecting to the child's relocation, see § 30-3-160 et seq., Ala. Code 1975; that the mother moved to Texas; that the child remained in Alabama for a period in the care of the mother's parents; but that the child relocated to Texas before the juvenile court entered an order on the father's motion. In December 2015 the mother filed in the juvenile court a motion seeking a modification of the custody order containing the visitation provision, the father filed a motion in opposition to the mother's modification petition, and the father filed a motion, as amended, seeking a finding of contempt against the mother and an order designating how the parties would bear the cost of transportation for visitation.

On September 28, 2016, the juvenile court conducted a trial at which the parties testified, and the juvenile-court judge interviewed the child in camera. The juvenile court entered a judgment on September 29, 2016, finding the mother in contempt of the visitation provision, ordering that the visitation provision would remain unchanged despite the child's relocation, making the mother responsible for all costs of transportation for visitation, and ordering the mother to pay the father's attorney fees in the amount of $3,539.98.

The mother filed a timely postjudgment motion and, thereafter, certain amendments to her motion. Her motion was denied by operation of law, and she filed a timely notice of appeal from the juvenile court to the Jefferson Circuit Court ("the circuit court"), seeking a trial de novo, because, she argued, the record was not adequate for review. See Rule 28(B), Ala. R. Juv. P. That appeal was assigned case no. DR-16-602. The father filed a motion seeking an order transferring the mother's appeal to this court. After determining that the record was adequate for review (see discussion, infra ), the circuit court entered an order transferring the mother's timely appeal to this court.

Taking her issues out of order, the mother seeks our review of whether the circuit court abused its discretion by transferring the appeal to this court and of whether the juvenile court erred by admitting certain exhibits into evidence, by concluding that she was in contempt, by ordering her to pay the father's attorney fees, by declining to modify the child's visitation, by requiring her to pay all the costs of transportation for visitation, by concluding that the father had "prove[d] his case," and by not conducting a postjudgment hearing.

Before reaching the merits of the mother's arguments addressed to the propriety of the juvenile court's judgment, we first determine whether the circuit court properly transferred the appeal to this court. Rule 28(B), Ala. R. Juv. P., provides for an appeal from a juvenile court to a circuit court for a trial de novo when the record is inadequate for review by an appellate court. The mother had argued to the circuit court that the record was incomplete, because, she complained: "At the end of the trial in [the juvenile court], the [juvenile] court returned the [mother]'s exhibit, which was offered and introduced and therefore there is no complete record." The circuit court ordered the parties to supplement the record with all the exhibits, and the parties did so. Rule 28(D), Ala. R. Juv. P., provides that a "circuit court may transfer an appeal to another court if it determines that the appeal should be transferred to or should have been brought in that court." The circuit court properly transferred the appeal to this court, and we proceed to consider the merits of the mother's arguments addressed to the propriety of the juvenile court's judgment.

At the time of the trial the child was 12 years old. The mother testified that, in 2015, she notified the father that she intended to relocate to Texas, and the father filed a motion objecting to the child's relocation; however, the mother and the child relocated before the father's motion had been addressed by the juvenile court. There is no dispute that the juvenile court eventually entered an order that allowed the child to relocate and that it did not modify the visitation provision. The father testified that, from December 2015 through September 2016, he had spent $3,240.76 on airline tickets for visitations, in addition to paying $750 per month in child support.

The parties each offered testimony regarding the frequency of visitation. The mother testified that the child was old enough to enjoy weekend activities at home, to refuse to get in the automobile to go to the airport, and to refuse to board an airplane. Specifically, the mother said that the child had not visited the father on the third weekend of May 2016 because the mother had allowed her to participate in a volleyball tournament. According to the father, after he had purchased an airline ticket, the mother had asked him to cancel the visit, and the child had contacted him to inform him that she wanted to participate in the tournament. The father admitted that he had insisted that the child visit instead because, he testified:

"I explained to [the child] that we cannot-I have plane tickets. We can't just switch a weekend, you know, at the last minute. And I think it's more important for us to have-for me to be able to have a relationship and spend time with her than a volleyball tournament."

However, he said that later that week he had relented. He testified:

"So, me and my wife talked about it and we looked at flights to see what could we do. And the very next weekend was Memorial Day weekend. So, I gave [the mother]-I gave her an offer and said, hey, okay, we can switch it. But if I'm going to go to all this trouble and I'm going to switch it, then I want Memorial Day. I will take-we will switch it, but I want the weekend plus Memorial Day for the next weekend. So, yes, we did not want to, but we did offer her to do that."

There is no dispute that the mother refused to switch the visitation weekends, that the child did not visit the father on the third weekend of May 2016, and that the father had subsequently filed his motion seeking a finding of contempt against the mother. The father testified that he had exercised visitation with the child only when he paid the cost of transportation. For example, he said: "I paid for the beginning of September [2016] visit and not the third weekend. So, I did not see her on that weekend."

On appeal, the mother argues that certain e-mail messages and certain text messages ("the exhibits") offered by the father, to which she objected, should not have been admitted into evidence.

" 'When evidentiary rulings of the trial court are reviewed on appeal, "rulings on the admissibility of evidence are within the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion." ' Bowers v. Wal-Mart Stores, Inc., 827 So.2d 63, 71 (Ala. 2001) (quoting Bama's Best Party Sales, Inc. v. Tupperware, U.S., Inc., 723 So.2d 29, 32 (Ala. 1998), citing in turn Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165 (Ala. 1991) )."

I.L.C. v. J.D.B., 203 So.3d 88, 93 (Ala. Civ. App. 2016). According to the mother, the exhibits contained inadmissible hearsay, were incomplete, were based on an improper predicate, and lacked a proper foundation. However, even if we concluded that the juvenile court had abused its discretion by admitting the exhibits, the error would be harmless pursuant to Rule 45, Ala. R. App. P., because other evidence presented amply supports the juvenile court's determination that the mother had failed or refused to comply with the visitation provision. The mother herself testified that she had not required the child to visit the father on the third weekend of May 2016. Moreover, nothing in the judge's oral statements or in the judgment indicates that the juvenile court relied on the exhibits. Therefore, the mother has failed to demonstrate that she was harmed by the evidentiary rulings of the juvenile court.

Next, the mother argues that the juvenile court erred by finding her in contempt. The juvenile court did not specify in its judgment the type of contempt in which it found the mother. The judgment reads: "The [mother] is held in contempt for violation of the court ordered visitation. Sentenced to 90 days suspended." The juvenile-court judge indicated that she had relied on the father's testimony that he had been willing to work around the volleyball tournament but that the mother would not compromise. At the close of all the testimony, the juvenile-court judge orally stated that she had concluded that the mother was in contempt because she had not allowed the father to "completely exercise his visitation rights," and the juvenile-court judge said:

"I find [the mother] in contempt of the court order, suspended sentence. And if this happens again, then, of course, she has to come back and serve ninety days. So, I will-I'm sure she will make sure that everything goes as planned from now on."

Rule 70A(a)(2), Ala. R. Civ. P., provides, in pertinent part:

"(C) 'Criminal contempt' means ...
"....
"(ii) Willful disobedience or resistance of any person to a court's lawful writ, subpoena, process, order, rule, or command, where the dominant purpose of the finding of contempt is to punish the contemnor.
"(D) 'Civil contempt' means willful, continuing failure or refusal of any person to comply with a court's lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with."

Criminal contempt imposes punishment for failure to obey a trial court's judgment or order, and a key element of a finding of criminal contempt pursuant to Rule 70A(a)(2)(C)(ii) is that such a finding is intended to "punish the contemnor." Sanctions for criminal contempt are statutorily limited to a maximum fine of $100 and imprisonment not to exceed five days. § 12-11-30(5), Ala. Code 1975. A key element of a finding of civil contempt is that such a finding is intended to compel compliance, and sanctions for civil contempt may exceed the limits provided by § 12-11-30(5) and "may continue indefinitely until the contemnor performs as ordered." Pate v. Guy, 934 So.2d 1070, 1072 (Ala. Civ. App. 2005) ; see also Kalupa v. Kalupa, 527 So.2d 1313, 1317 (Ala. Civ. App. 1988) (citing Charles Mfg. Co. v. United Furniture Workers, 361 So.2d 1033 (Ala. 1978) ).

In this case, the juvenile court indicated that it sought both to punish and to compel compliance. In Norland v. Tanner, 563 So.2d 1055, 1058 (Ala. Civ. App. 1990), we were presented with a similar situation.

"We find that the trial court, in addition to punishment for past disobedience, was attempting to compel compliance with its orders in the future. As such, its contempt findings were both criminal and civil in nature. There is no legal prohibition against the finding of both criminal and civil contempt in an appropriate factual setting."

In Lightsey v. Kensington Mortgage & Finance Corp., 294 Ala. 281, 315 So.2d 431 (1975), our supreme court explained that contempt can have elements of both civil and criminal contempt and be treated as civil contempt.

"One of the most quoted cases on this subject is Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 [ (1911) ], where it was said:
" 'Contempts are neither wholly civil nor altogether criminal. And "it may not always be easy to classify a particular act as belonging to either one of these two classes. It may partake of the characteristics of both."
Bessette v. W.B. Conkey Co., 194 U.S. 324, 24 S.Ct. 665, 48 L.Ed. [997 (1904) ]. But in either event, and whether the proceedings be civil or criminal, there must be an allegation that in contempt of court the defendant has disobeyed the order, and a prayer that he be attached and punished therefor. It is not the fact of punishment, but rather its character and purpose, that often serve to distinguish between the two classes of cases. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court. It is true that punishment by imprisonment may be remedial as well as punitive, and many civil contempt proceedings have resulted not only in the imposition of a fine, payable to the complainant, but also in committing the defendant to prison. But imprisonment for civil contempt is ordered where the defendant has refused to do an affirmative act required by the provisions of an order which, either in form or substance, was mandatory in its character. Imprisonment in such cases is not inflicted as a punishment, but is intended to be remedial by coercing the defendant to do what he had refused to do. The decree in such cases is that the defendant stand committed unless and until he performs the affirmative act required by the court's order.' "

Lightsey, 294 Ala. at 285-86, 315 So.2d at 434-35 ; see also Fludd v. Gibbs, 817 So.2d 711, 714 (Ala. Civ. App. 2001), and Norland, 563 So.2d at 1057-58. The juvenile court might have intended to punish the mother for defiance of the visitation provision; however, it clearly sought compliance with the visitation provision. See Parker v. Parker, 640 So.2d 979, 981 (Ala. Civ. App. 1994). We conclude that the finding of contempt was civil in nature, although it had characteristics of both criminal and civil contempt.

The mother's entire argument on appeal regarding the juvenile court's finding of contempt assumes that the juvenile court held her in criminal contempt. Because the mother does not argue on appeal that the juvenile erred by finding her in civil contempt, that argument is waived. See Gary v. Crouch, 923 So.2d 1130, 1136 (Ala. Civ. App. 2005) ("[T]his court is confined in its review to addressing the arguments raised by the parties in their briefs on appeal; arguments not raised by the parties are waived."); see also Palmer v. Palmer, 192 So.3d 12, 16 (Ala. Civ. App. 2015).

Next, the mother argues that the juvenile court erred by ordering her to pay the father's attorney fees. The mother argues that the award of attorney fees should be reversed, because an award of attorney fees is not allowed in a case of criminal contempt. Again, as already determined, this is a case of civil contempt. In Moody v. State ex rel. Payne, 355 So.2d 1116, 1119 (Ala. 1978), our supreme count explained that it is within the sound discretion of a trial court to award a reasonable attorney fee to a prevailing party in a civil-contempt action. See also Norland, 563 So.2d at 1058 ("We find that the trial court, in addition to punishment for past disobedience, was attempting to compel compliance with its orders in the future. As such, its contempt findings were both criminal and civil in nature. ... Accordingly, the award of attorney's fees was not error."). The mother's argument is, therefore, without merit. However, the mother also briefly argues, without citation to authority, that the juvenile court erred by ordering her to pay the father's attorney fees because the father's attorney failed to provide an "amortization of her fees." As pointed out by the father, we have previously concluded that a trial court did not abuse its discretion when a parent failed to offer evidence demonstrating "the amount of fees he was obligated to pay his attorney."

"In Broadway v. Broadway, 184 So.3d 376, 386 (Ala. Civ. App. 2014), this court, relying on Lackey v. Lackey, 18 So.3d 393, 402 (Ala. Civ. App. 2009), stated that '[a] trial court may rely on its knowledge and experience in assessing the value of an attorney's services even without evidence regarding the reasonableness of the attorney fees.' "

L.M. v. K.A., 177 So.3d 1174, 1182 (Ala. Civ. App. 2015) (emphasis added). We conclude that the mother failed to support her argument with citation to relevant authority or to demonstrate that the juvenile court abused its discretion by ordering her to pay the father's attorney fees.

Next, the mother argues that the juvenile court erred by declining to modify the visitation provision. The mother, citing Carr v. Howard, 777 So.2d 738 (Ala. Civ. App. 2000), and L.M., supra, asserts that the frequency of visitation is not in the best interest of the child.

" ' "Visitation, like custody, is a matter that rests soundly within the broad discretion of the trial court, and its determination regarding visitation must be affirmed absent a finding that the judgment is not supported by any credible evidence, and that the judgment, therefore, is plainly and palpably wrong." Cohn v. Cohn, 658 So.2d 479, 482 (Ala. Civ. App. 1994). Visitation is determined on a case-by-case basis, and the trial court, in ruling on visitation, is guided by the children's best interests. Id.'
" Carr v. Howard, 777 So.2d 738, 741-42 (Ala. Civ. App. 2000)."

L.M., 177 So.3d at 1181. In Carr, we reversed a judgment that had required the children in that case to fly from Illinois to Alabama every other weekend. We explained that

"the current visitation schedule, requiring either the two daughters or the two sons to travel every other weekend from Chicago to Baldwin County or from Baldwin County to Chicago, respectively, is disruptive to the family unit, creates problems in family stability, and, ultimately, is not in the best interests of the children. The frequency and length of the travel required, in our opinion, must be a factor in the consideration of what serves the children's best interests. We do not believe the best interests of the children are served by having them spend every other weekend fighting the crowds at O'Hare International Airport."

Carr, 777 So.2d at 742. Similarly, in L.M., we reversed a judgment that had required a seven-year-old child to fly from Colorado to Alabama at least twice per month. We remanded the cause for the trial court to "fashion[ ] an equitable visitation schedule that is less disruptive for the child." L.M., 177 So.3d at 1181.

Carr and L.M. are, however, distinguishable from this case because, in this case, the juvenile-court judge interviewed the child in camera. The in camera interview was not recorded or otherwise made part of the record on appeal. In the absence of a transcript of an in camera interview with a child, a reviewing court must assume that the evidence the trial court received during that interview is sufficient to support that court's judgment. See Casey v. Casey, 85 So.3d 435, 441 (Ala. Civ. App. 2011) (citing Waddell v. Waddell, 904 So.2d 1275, 1279-80 (Ala. Civ. App. 2004) ; Hughes v. Hughes, 685 So.2d 755, 757 (Ala. Civ. App. 1996) ; and Reuter v. Neese, 586 So.2d 232, 235 (Ala. Civ. App. 1991) ). Accordingly, we cannot say that the mother has demonstrated that the juvenile court erred by declining to modify the visitation provision.

Next, the mother asserts that the juvenile court erred by requiring her to pay the costs of transportation for visitation; however, the mother does not make a legal argument or cite any authority to support her contention. " Rule 28(a)(10) [,Ala. R. App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived." White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008).

Next, the mother presents a one-paragraph argument that the juvenile court erred by concluding that the father had "prove[d] his case" because, she says, he did not prove that the mother "willfully refused or failed to comply with the court order." As already mentioned, our review of the record reveals that there was evidence, including the mother's own testimony, demonstrating that she had refused to comply with the visitation provision. See, e.g., Broadnax v. Broadnax, 558 So.2d 929, 930 (Ala. Civ. App. 1989).

Next, the mother argues that the juvenile court erred by denying her postjudgment motion without a hearing; however, the mother has failed to demonstrate or to specify any harmful error.

" 'Rule 59(g), Ala. R. Civ. P., provides that postjudgment "motions remain pending until ruled upon by the court (subject to the provisions of Rule 59.1) but shall not be ruled upon until the parties have had opportunity to be heard thereon." This court has held that
" ' "[g]enerally, a movant who requests a hearing on his or her postjudgment motion is entitled to such a hearing. Rule 59(g), Ala. R. Civ. P.; Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala. 2000). A trial court's failure to conduct a hearing is error. Flagstar Enters., 779 So.2d at 1221."
" ' Dubose v. Dubose, 964 So.2d 42, 46 (Ala. Civ. App. 2007) ; see also Staarup v. Staarup, 537 So.2d 56, 57 (Ala. Civ. App. 1988) ("[ Rule 59(g) ] mandates that, when a hearing is requested on a motion for new trial, the hearing must be granted.").
" '[However], this court has recognized an exception to the general rule that the denial of a postjudgment motion without conducting a requested hearing is reversible error. See Gibert v. Gibert, 709 So.2d 1257, 1258 (Ala. Civ. App. 1998) ("A trial court errs by not granting a hearing when one has been requested pursuant to Rule 59(g) ; however, that error is not necessarily reversible error."). "On appeal, ... if an appellate court determines that there is no probable merit to the motion, it may affirm based on the harmless error rule." Palmer v. Hall, 680 So.2d 307, 307-08 (Ala. Civ. App. 1996) ; see also Lowe v. Lowe, 631 So.2d 1040, 1041 (Ala. Civ. App. 1993) ("Denial of a Rule 59 motion without a hearing is reversible error if the movant requested a hearing and harmful error is found."). The Alabama Supreme Court has stated:
" ' "Harmless error occurs, within the context of a Rule 59(g) motion, where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court."
" ' Greene v. Thompson, 554 So.2d 376, 381 (Ala. 1989). However, "[w]hen there is probable merit to the motion, the error cannot be considered harmless." Dubose, 964 So.2d at 46.'
"[ Wicks v. Wicks,] 49 So.3d [700,] 701 [ (Ala. Civ. App. 2010) ]."

Whitman v. Whitman, 75 So.3d 1192, 1193-94 (Ala. Civ. App. 2011). Accordingly, the juvenile court's refusal to conduct a postjudgment hearing is not reversible error.

In conclusion, the circuit court properly transferred the appeal to this court. To the extent that the juvenile court might have erred by admitting the exhibits into evidence, or by not conducting a postjudgment hearing, those errors were harmless. The mother failed to demonstrate that the juvenile court committed reversible error by declining to modify the visitation schedule or by ordering her to pay the father's attorney fees. The mother waived the arguments that juvenile court abused its discretion by finding her in civil contempt, by concluding that the father had "prove[d] his case," and by ordering her to pay the transportation costs of the child for visitation. Accordingly, the juvenile court's judgment is affirmed.

Finally, we deny the mother's motion to strike the father's appellate brief because his 38-page brief does not exceed the 70-page limitation provide by Rule 28(j)(1), Ala. R. App. P. The mother is simply incorrect in her assertion that his brief is a reply brief.

AFFIRMED.

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

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

      October 20, 2016, is the date of the first entry on the copy of the State Judicial Information System case-action-summary sheet that is provided in the record on appeal. We have relied on agreements of the parties and electronic stamps that appear on some documents for certain dates recounted in this opinion.

      Although not offered into evidence, portions of the September 9, 2013, custody order and of the order entered regarding the father's objection-to-relocation motion were read aloud by the parties' attorneys during the trial.

      The father testified that the exhibits were e-mail and text messages that the parties had exchanged. The mother testified that, although it was possible that she had written the messages, she did not know or did not remember whether she had written the messages. She testified that she recognized her e-mail address on some of the exhibits, but, she said, "someone ha[d] hacked into [her] cell phone account," certain messages looked "familiar" but might not be complete, and certain messages merely looked "like an e-mail that I would have sent."


author: WELCH, Judge. BURKE, Judge, dissenting.

text:
    Zachary Wayne WEATHERFORD v. STATE of Alabama
    CR-16-0582
    Court of Criminal Appeals of Alabama.
    September 8, 2017
    Eric Wood, Huntsville, for appellant.
    Steve Marshall, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellee.
   WELCH, Judge.

Zachary Wayne Weatherford appeals the revocation of his probation by the Madison Circuit Court. On February 4, 2016, Weatherford was convicted of the unlawful manufacture of a controlled substance in the second degree. See § 13A-12-217, Ala. Code 1975. He was sentenced to 60 months in prison. His sentence was suspended, and Weatherford was placed on three years' probation. On February 24, 2017, Probation Officer Rachel Murrill filed a delinquency report alleging that Weatherford had violated the terms and conditions of his probation by committing the new offense of first-degree kidnapping and by failing to avoid injurious or vicious habits.

The trial court held a probation-revocation hearing at which the State presented testimony from two witnesses: Investigator Gary Gilbert of the Huntsville Police Department and Probation Officer Murrill. Inv. Gilbert testified that he was contacted regarding an assault victim at the Madison Hospital emergency room. When he arrived at the hospital, he saw Erica Green Barnes. She had scratches on the right side of her temple and swelling around her left eye. Inv. Gilbert testified that the left side of Barnes's head near her hairline was swollen and that she had a "busted lip and ligature marks around her ankles." (R. 7.) Inv. Gilbert testified that Barnes told him that

"[s]he had recently got back together with the ex-boyfriend, Mr. Weatherford, even though they had a prior domestic violence incident back on Black Friday of last year.
"The last few days they had been riding around. She said Mr. Weatherford was on a high from methamphetamine and they had been traveling back and forth from that address on Ryland Pike in Madison County back to Huntsville.
"Earlier in the day, about the last four hours, they were riding around the back roads in his pickup truck. He made statements that he would kill her because she no longer wanted to be in a relationship with him.
"He asked her how she would like to die, it could be by overdose, stab her, run her over with his truck.
"He bound her feet together with a phone charger cord and was stabbing the seat of the truck with a knife.
"She recalls seeing street signs on Wall Triana, County Line Road, which that puts her in the Huntsville City limits is the area we have there.
"They eventually stopped at Fuel City on Swancot Road and she said Mr. Weatherford kind of dozed off, fell asleep. She got the knife and cut the cord from around her ankles and ran into the store.
"I was able to view the video from the store. It does show a gold F150 pickup pull up to the pumps and sits there for about 10 or 15 minutes.
"A female gets out of the passenger's side and runs inside the store. A male gets out of the truck and then gets back in the truck and drives off."

(R. 8-9.) Inv. Gilbert could not tell from the video whether Weatherford was the male in the video.

Officer Murrill testified that she was informed of the allegation and contacted Weatherford "to try and see what was going on and see if he would come and talk to [her] about it and explain it." (R. 15.) Weatherford told her that "he got into an argument with Miss Barnes and that he slapped her but that it would be at most an assault third charge." (R. 16.) Weatherford stated that Barnes may have hit him back.

Following the testimony, defense counsel argued that the evidence was insufficient because, he said, the only evidence connecting Weatherford to the offense was hearsay. After hearing arguments from both parties, the circuit court stated:

"And this is the way I see this case, you have the statement of the victim, which is entirely hearsay.
"The officer has corroborated that when he interviewed the victim finding the exact types of multiple injuries-this is not just standard injuries, but all kinds of different injuries to her that he can physically see which corroborate the testimony that she said as to the way the Defendant in this case harmed her.
"And then the second amount of corroborating testimony is the officer's seeing the video that confirms the location where this lady said she was let back out at the service station. He couldn't tell whether that was him, but that further corroborates her hearsay testimony.
"And, finally, you have the testimony of Officer Murrill in which the Defendant admits to an altercation in which he at least slapped the victim in this case. And we don't know about, you know, whether she slapped him in self-defense.
"But when you put all of those together, that is sufficient to corroborate the victim's testimony.
"The Court finds that the Defendant violated the terms and conditions of his probation as to Charge One, kidnapping first, terror adult.
"As to failure to avoid injurious or vicious habits, normally this has to do with drugs, I find for the Defendant. I just don't think that is a proper charge on that one.
"The Defendant's probation is revoked, he is remanded to the Department of Corrections to serve the balance of his sentence."

(R. 22-23.) The circuit court also entered a written order of revocation. This appeal follows.

On appeal, Weatherford argues that the evidence was insufficient to support the revocation of his probation. Specifically, he claims that his probation was revoked solely on hearsay evidence. In support of his argument, Weatherford cites Ex parte Dunn, 163 So.3d 1003 (Ala. 2014).

In Dunn, the appellant argued that the trial court's revocation "was based entirely on hearsay and the Court of Criminal Appeals' affirmance of that decision conflicts with Goodgain [v. State, 755 So.2d 591, (Ala. Crim. App. 1999) ]." 163 So.3d at 1004. The Alabama Supreme Court agreed with Dunn and stated:

"In Goodgain, the defendant, William Lindsey Goodgain, appealed the revocation of his probation, arguing that it was based on hearsay evidence that he had committed a new criminal offense of robbery. The Court of Criminal Appeals noted:
" 'At the revocation hearing, the State presented one witness: Gregory Johnson, a detective with the Birmingham Police Department. Detective Johnson testified that on December 13, 1998, he received an offense report prepared by an unidentified officer regarding a robbery that had allegedly occurred on December 12, 1998. According to Detective Johnson, the offense report indicated that the victim of the robbery had stated that Goodgain and another individual had come to her home and had robbed her at gunpoint, taking $500 in cash and a necklace. Detective Johnson stated that after he received the offense report, he conducted a live lineup and a photographic lineup as part of his investigation of the robbery. He testified that the victim identified Goodgain in the live lineup, and the victim's daughter, who was present during the robbery, identified Goodgain in the photographic lineup. Detective Johnson said that on December 17, 1998, he obtained an arrest warrant for Goodgain for the crime of robbery in the first degree. No other evidence was offered at the hearing to support the allegation in the probation officer's delinquency report. At the time of the revocation hearing, Goodgain had yet to be tried on the robbery charge.'
" 755 So.2d at 592.
"The Court of Criminal Appeals stated: ' "It is not necessary in a probation revocation hearing to provide proof beyond a reasonable doubt or by a preponderance of the evidence. Rather, the lower court need only be 'reasonably satisfied from the evidence that the probationer has violated the conditions of his probation.' " ' 755 So.2d at 592 (quoting Mitchell v. State, 462 So.2d 740, 742 (Ala. Crim. App. 1984), quoting in turn Armstrong v. State, 294 Ala. 100, 103, 312 So.2d 620, 623 (1975) ). However, the Court of Criminal Appeals also stated: '[H]earsay evidence may not form the sole basis for revoking an individual's probation .... "The use of hearsay as the sole means of proving a violation of a condition of probation denies a probationer the right to confront and to cross-examine the persons originating information that forms the basis of the revocation." ' 755 So.2d at 592 (quoting Clayton v. State, 669 So.2d 220, 222 (Ala. Crim. App. 1995) ).
"The Court of Criminal Appeals in Goodgain determined that 'the only evidence that Goodgain violated his probation by committing another crime was Detective Johnson's hearsay testimony regarding the statements of the robbery victim contained in the offense report and regarding the lineup identifications of Goodgain by the victim and her daughter.' Goodgain, 755 So.2d at 592. The Court of Criminal Appeals concluded:
" 'Because the State failed to present any evidence, other than the hearsay testimony of Detective Johnson, indicating that Goodgain had, in fact, committed the alleged robbery, the trial court erred in revoking Goodgain's probation. Accordingly, the trial court's order revoking Goodgain's probation is reversed and this cause is remanded for the court to hold another revocation hearing.'
" 755 So.2d at 593."

Dunn, 163 So.3d at 1004-05.

The Alabama Supreme Court held that

"[t]he State acknowledges that it 'relied on hearsay evidence' in the revocation hearing, but it argues that 'it corroborated the hearsay evidence when it relied on nonhearsay evidence-Gibbons's testimony regarding the testing that she performed on the blood sample that ultimately matched Dunn's profile that was stored in a database containing DNA profiles from felons and misdemeanors throughout the state.' State's brief, at 11. However, the State provided no nonhearsay evidence, from Gibbons or anyone else, as to where the pants from which the blood sample was taken were found or connecting those pants to the robbery. Gibbons testified that the evidence-submission form indicated that 'there was clothing that was found discarded along with [Olensky's] stolen property next door from the scene,' but she had no personal knowledge of that discovery. Detective Shirey testified that Officer McKinley had found the pants, but Detective Shirey had no personal knowledge as to where they had been found. No testimony from Officer McKinley was offered at the revocation hearing. Thus, as was the case in Goodgain, the only evidence connecting Dunn to the alleged commission of the robbery was hearsay evidence.
"....
"As noted previously, the State has not corroborated by nonhearsay evidence the hearsay evidence connecting the pants, and by extension Dunn, to the burglary. Thus, as in Goodgain, 'the State failed to present any evidence, other than the hearsay testimony of Detective [Shirey], indicating that [Dunn] had, in fact, committed the alleged [burglary],' 755 So.2d at 593, and the Court of Criminal Appeals' decision, affirming the trial court's judgment, conflicts with Goodgain. For the foregoing reasons, we reverse the Court of Criminal Appeals' judgment and remand the cause for further proceedings consistent with this opinion."

163 So.3d at 1005-06.

Here, the State acknowledges that it relied on hearsay evidence in the revocation hearing, but it argues that sufficient nonhearsay evidence was presented to connect Weatherford to the offense and to corroborate what the victim said occurred. The State argues that Weatherford's admission that he slapped the victim was nonhearsay evidence that "established that [Weatherford] was in the vehicle with the victim and that he slapped the victim." (State's brief, p. 9-10.) The State also contends that Inv. Gilbert's nonhearsay testimony regarding the victim's injuries "corroborated the injuries the victim said Weatherford inflicted on her." (State's brief, p. 10.) Finally, the State argues that the video surveillance footage viewed by Inv. Gilbert showing the victim escaping from her abductor at the gas station was nonhearsay evidence corroborating the commission of the kidnapping offense. We disagree.

In the instant case, as in Ex parte Dunn and Goodgain, the State presented only hearsay evidence to support a finding that Weatherford had violated the terms and conditions of his probation by committing the new offense of kidnapping. Contrary to the State's assertion, it did not present any nonhearsay evidence corroborating the hearsay testimony of Inv. Gilbert or connecting Weatherford to the offense. Although Inv. Gilbert testified that he had seen the victim's injuries, no nonhearsay evidence was presented indicating that Weatherford caused those particular injuries. Other than the ligature marks around the victim's ankles, Inv. Gilbert never testified that the victim told him how she had sustained the injuries. Even if Weatherford's statement that he had slapped the victim could be connected to those specific injuries, that admission would not connect Weatherford to the crime of kidnapping. The video-surveillance footage also does not connect Weatherford to the crime of kidnapping. Inv. Gilbert could not identify the male in the video and did not testify that the female in the video was the victim. Although the video may tend to corroborate the victim's statement, it does not connect Weatherford to the offense. See English v. State, 164 So.3d 627, 631-32 (Ala. Crim. App. 2014) ("Based on the Alabama Supreme Court's holding in [Ex parte] Dunn [, 163 So.3d 1003 (Ala. 2014) ], we must agree with English's argument that the State has not presented any nonhearsay evidence to corroborate the hearsay testimony of Assistant Chief Davis. The only evidence connecting English to the alleged burglary and thefts was the hearsay testimony of Assistant Chief Davis. Accordingly, we reverse the circuit court's order revoking English's probation, and we remand the case to the circuit court for proceedings consistent with the Alabama Supreme Court's opinion in Ex parte Dunn, supra."); accord Ratliff v. State, 970 So.2d 939, 941-42 (Fla. Dist. Ct. App. 2008) (stating that, " '[w]hile probation may be revoked based on a combination of hearsay and nonhearsay evidence, when the State seeks to revoke probation based on the commission of new offenses, it must present direct, nonhearsay evidence linking the defendant to the commission of the offense at issue,' " and holding that the trial court abused its discretion by revoking the appellant's probation because the State failed to present "non-hearsay evidence establishing the essential elements of the criminal offenses at issue" (quoting Johnson v. State, 962 So.2d 394, 396-97 (Fla. Dist. Ct. App. 2007) )).

Because the State failed to present any nonhearsay evidence to establish that Weatherford had violated the terms and conditions of his probation by committing the alleged kidnapping, the circuit court erred in revoking Weatherford's probation. Accordingly, the circuit court's order revoking Weatherford's probation is reversed and this cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Windom, P.J., and Kellum, J., concur. Burke, J., dissents, with opinion, which Joiner, J., joins.

BURKE, Judge, dissenting.

I respectfully dissent from the majority's conclusion that the State failed to present any nonhearsay evidence to establish that Zachary Wayne Weatherford violated the terms and conditions of his probation by committing the alleged offense of first-degree kidnapping.

At Weatherford's revocation hearing, the State presented testimony from Investigator Gary Gilbert. As noted in the majority opinion, Inv. Gilbert testified that he interviewed the victim at the Madison Hospital emergency room and that she gave a detailed description of Weatherford's actions on the day in question. Inv. Gilbert also testified to his observations of the victim's injuries including "scratches on her right side of her temple, swelling around her left eye ... a busted lip and ligature marks around her ankles." (R. 7.) Inv. Gilbert's testimony about the victim's injuries were based on his own observations and did not constitute hearsay.

Additionally, the State presented testimony from Rachel Murrill, Weatherford's probation officer. Officer Murrill testified that she had been informed that Weatherford was in trouble and that a warrant may be issued for his arrest. Murrill stated that she then telephoned Weatherford "to try and see what was going on." (R. 15.) Murrill gave the following account of her conversation with Weatherford:

"When he first picked up the phone, it was hard to understand him. I identified myself as Officer Murrill, State Probation, and asked for Zach Weatherford. There was some mumbling and the phone disconnected.
"I called back and asked again and he sounded-what I would describe as paranoid, asking me how I got that phone number that I called.
"He said it was impossible because he had just gotten that number the weekend that this occurred, that I wouldn't have that number on file.
"And I asked him what he was so upset about, what was going on. He said, you know what's going on. And I said I don't. And he stated, 'well I think I'm in some trouble.'
"He stated that he got into an argument with [the victim] and that he slapped her but that it would be at most an assault third charge."

(R. 15-16.)

Rule 801(d)(2)(A), Ala. R. Evid., provides that "[a] statement is not hearsay if ... [t]he statement is offered against a party and is the party's own statement in either an individual capacity or a representative capacity ...." Accordingly, Weatherford's statements to Officer Murrill are not hearsay.

At the conclusion of the hearing, the trial court stated, among other things, that it relied on Inv. Gilbert's testimony that he interviewed the victim and found "the exact types of multiple injuries-this is not just standard injuries, but all kinds of different injuries that he can physically see which corroborate the testimony that she said as to the way the Defendant in this case harmed her." (R. 22.) The trial court also stated that it relied on "the testimony of Officer Murrill in which the Defendant admits to an altercation in which he at least slapped the victim in this case." (R. 23.) Therefore, the trial court did not rely solely on hearsay as the basis to revoke Weatherford's probation.

Although the testimony presented at Weatherford's revocation hearing may not have been sufficient to prove the alleged kidnapping beyond a reasonable doubt, that was not the requisite burden of proof. As the majority notes: " ' " 'It is not necessary in a probation revocation hearing to provide proof beyond a reasonable doubt or by a preponderance of the evidence. Rather, the lower court need only be "reasonably satisfied from the evidence that the probationer has violated the conditions of his probation." ' " 755 So.2d at 592 (quoting Mitchell v. State, 462 So.2d 740, 742 (Ala. Crim. App. 1984), quoting in turn Armstrong v. State, 294 Ala. 100, 103, 312 So.2d 620, 623 (1975) ).' " 251 So.3d at 73. I believe that the nonhearsay testimony offered by the State, i.e., Inv. Gilbert's personal observations of the victim's injuries and Officer Murrill's testimony that Weatherford admitted to slapping the victim, coupled with the remaining testimony detailing the alleged kidnapping, was sufficient to reasonably satisfy the trial court that Weatherford violated his probation by committing the offense of first-degree kidnapping. Accordingly, I would affirm the trial court's decision to revoke Weatherford's probation.

Joiner, J., concurs.

      Section 13A-6-43(a)(5), the section under which Weatherford was charged, defines first-degree kidnapping as the abduction of another person with the intent to terrorize him or her or a third person.


text:
    Paul D. PARTRIDGE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0291
    District Court of Appeal of Florida, First District.
    August 7, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    David LASHLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0033
    District Court of Appeal of Florida, First District.
    August 7, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Leah SIMMS, Terri Leigh Jones, Tonya Sue Chavis, and Leslie Anderson-Adams, Appellants, v. STATE of Florida, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION and Jonathan Zachem, Secretary, in his official capacity, and Department of Management Services, and DMS Secretary, Erin Rock, in her official capacity, Appellees.
    No. 1D17-3974
    District Court of Appeal of Florida, First District.
    July 27, 2018 Rehearing Denied August 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jeffery D. SHOEMO, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3195
    District Court of Appeal of Florida, First District.
    July 2, 2018 Rehearing Denied August 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Richard BARON, Appellant, v. Michelle BARON, Appellee.
    No. 1D18-1345
    District Court of Appeal of Florida, First District.
    August 14, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Percival-Charles FERRIS, Jr., Appellant, v. Governor Rick SCOTT and Julie Jones, Secretary, Florida Dep't of Corrections, Appellees.
    No. 1D17-5075
    District Court of Appeal of Florida, First District.
    August 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Ted K. YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0262
    District Court of Appeal of Florida, First District.
    August 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Richard Eric LAMBERT, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3741
    District Court of Appeal of Florida, First District.
    August 7, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Johnnie E. THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-2860
    District Court of Appeal of Florida, First District.
    August 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Mitchell Wendell HENDRIX, Appellant v. STATE of Florida, Appellee.
    No. 1D17-518
    District Court of Appeal of Florida, First District.
    August 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jadarious D. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2089
    District Court of Appeal of Florida, First District.
    August 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    J.M.P., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D17-3494 1D17-3496
    District Court of Appeal of Florida, First District.
    August 14, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    J.W., Father of A.W., W.W., L.W., P.W., Minor Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D17-5080
    District Court of Appeal of Florida, First District.
    August 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tommy Allen KROLL, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2768
    District Court of Appeal of Florida, First District.
    August 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Michael LESTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2020
    District Court of Appeal of Florida, First District.
    August 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Kendrick Charles JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1992
    District Court of Appeal of Florida, First District.
    August 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Percy WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1950
    District Court of Appeal of Florida, First District.
    August 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Rufus Cordero SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-0348
    District Court of Appeal of Florida, First District.
    August 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Raijuahn Omarious ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2167
    District Court of Appeal of Florida, First District.
    August 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kelvin Bernard WILLIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-139
    District Court of Appeal of Florida, First District.
    August 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    J.W., Mother of A.W., W.W., L.W., P.W., Minor Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D17-4729
    District Court of Appeal of Florida, First District.
    August 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kenneth BOGGS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3233
    District Court of Appeal of Florida, First District.
    August 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Silas KENDRICKS, Appellant, v. Judge Charles W. ARNOLD, for the Fourth Judicial Circuit and the State of Florida, Appellees.
    No. 1D17-2597
    District Court of Appeal of Florida, First District.
    August 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Dudley Allen HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-0708
    District Court of Appeal of Florida, First District.
    August 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Timothy John COLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3548
    District Court of Appeal of Florida, First District.
    August 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James Willie HOLT, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4738
    District Court of Appeal of Florida, First District.
    August 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lester JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3273
    District Court of Appeal of Florida, First District.
    August 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Azucena Maria Reyes LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5844
    District Court of Appeal of Florida, First District.
    August 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    William E. RENTSCHLER, Appellant, v. The BATTS COMPANY, a Florida corporation and David G. Anderson, an individual, Appellees.
    No. 1D17-0533
    District Court of Appeal of Florida, First District.
    August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Rachel Renea MILLER f/k/a Rachel Renea Hodgson, Appellant, v. James Brandon HODGSON, Appellee.
    No. 1D17-4303
    District Court of Appeal of Florida, First District.
    August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Damian Terell BUSH, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3821
    District Court of Appeal of Florida, First District.
    August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Joseph Thomas DURKIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3559
    District Court of Appeal of Florida, First District.
    August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Dwight TYRE III, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5002
    District Court of Appeal of Florida, First District.
    August 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Frank Michael KNOTH, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4567
    District Court of Appeal of Florida, First District.
    August 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Rickey Carlton BARKER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D17-775
    District Court of Appeal of Florida, First District.
    August 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Thomas PORTER, Appellant, v. ALSCO LINEN SERVICES/ALTERNATIVE SERVICE CONCEPTS, Appellees.
    No. 1D17-1761
    District Court of Appeal of Florida, First District.
    August 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    William Carl MONROE Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4418
    District Court of Appeal of Florida, First District.
    August 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Whitney Lewis CARTER, Appellant, v. Lloyd CARTER, Appellee.
    No. 1D18-510
    District Court of Appeal of Florida, First District.
    August 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Carlos R. SMITH, DOC #552928, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4273
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Abraham BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4175
    District Court of Appeal of Florida, First District.
    May 2, 2018 Rehearing Denied August 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    William M. PEARSON, as personal representative of the Estate of Helen G. Pearson, Petitioner, v. Charles KAZAKOS; Margaret Kazakos; and Michael A. Kazakos, Respondents.
    Case No. 2D18-1333
    District Court of Appeal of Florida, Second District.
    Opinion filed August 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Charice Nichole JONES, Appellant, v. DEPARTMENT OF REVENUE, o/b/o Timothy Paul Adams, Appellee.
    Case No. 2D17-1401
    District Court of Appeal of Florida, Second District.
    Opinion filed August 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    John Scott WEBB, Appellant, v. GREEN TREE SERVICING, LLC, Appellee.
    Case No. 2D16-5095
    District Court of Appeal of Florida, Second District.
    Opinion filed August 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Anthony DANIEL, Appellant, v. Michael ADCOCK, Appellee.
    Case No. 2D16-1786
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    William Gilbert STRICKLAND, Petitioner, v. Crisanto C. OXONIAN, as Personal Representative of the Estate of Maria I. Oxonian, Deceased; Jessica Lauren Wicky; and Karen Smith Strickland, Respondents.
    Case No. 2D18-923
    District Court of Appeal of Florida, Second District.
    Opinion filed August 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Harold J. BAKER, Appellant, v. WELLS FARGO BANK, Appellee.
    Case No. 2D17-1259
    District Court of Appeal of Florida, Second District.
    Opinion filed August 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    CPPM THP LLC and AMP/CPL-THP Property, LLC, Petitioners, v. CCP HARBOUR ISLAND LLC; Jackson's Bistro and Bar, L.C.; and Manor At Harbour Island, LLC, Respondents.
    Case No. 2D18-753
    District Court of Appeal of Florida, Second District.
    Opinion filed August 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Chad BURNETT, Appellant, v. WADE GUNN'S PAIN FREE PRODUCT, LLC, a Wyoming Corporation, Appellee.
    Case No. 2D17-1018
    District Court of Appeal of Florida, Second District.
    Opinion filed August 17, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    IN the INTEREST OF H.A.P. and S.R.L., children.
    C.L., Petitioner, v. Department of Children and Families, Respondent.
    Case No. 2D18-2364
    District Court of Appeal of Florida, Second District.
    Opinion filed August 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Savvas LYKOUDIS, Appellant, v. Stephanie ELDER, M.D., Appellee.
    Case No. 2D17-1059
    District Court of Appeal of Florida, Second District.
    Opinion filed August 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Larryel L. WILLIAMS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-4692
    District Court of Appeal of Florida, Second District.
    December 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Mateo CASTANEDA, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-3217
    District Court of Appeal of Florida, Second District.
    September 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Rodolfo SIMPSON, et al., Appellant/Petitioner(s), v. PALMS OF BEACH PARK CONDOMINIUM ASSOC, INC., et al., Appellee/Respondent(s).
    CASE NO.: 2D18-0012
    District Court of Appeal of Florida, Second District.
    January 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Appeal is dismissed.


text:
    WEBBER COMMERCIAL PROPERTIES, LLC, Appellant/Petitioner(s), v. Michael BYNES, a/k/a Mike Bynes, Sr., et al., Appellee/Respondent(s).
    CASE NO.: 2D17-4601
    District Court of Appeal of Florida, Second District.
    January 30, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Harvey L. LINEN, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-4035 CASE NO.: 2D16-3691
    District Court of Appeal of Florida, Second District.
    January 04, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    Skip DRISH, Appellant/Petitioner(s), v. FAMILY DOLLAR SERVICES, INC., et al., Appellee/Respondent(s).
    CASE NO.: 2D16-1063
    District Court of Appeal of Florida, Second District.
    December 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Theodore GRAYBILL, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-4877
    District Court of Appeal of Florida, Second District.
    January 09, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Writ of habeas corpus is denied.


text:
    Jude Mary DESCARDES, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-1125
    District Court of Appeal of Florida, Second District.
    December 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Terry Wayne GUFFEY, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-4033
    District Court of Appeal of Florida, Second District.
    December 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Antonio Angelo DANGELO, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-4461
    District Court of Appeal of Florida, Second District.
    November 09, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    Pamela L. KAUFMAN, Appellant/Petitioner(s), v. Ryan L. FIELDS and Connors Jet Age Fuel, Inc., Appellee/Respondent(s).
    CASE NO.: 2D18-0298
    District Court of Appeal of Florida, Second District.
    February 05, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Appeal is dismissed.


text:
    Eric Karl MCCOY, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-3305
    District Court of Appeal of Florida, Second District.
    February 05, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Dustin GILL, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-1456
    District Court of Appeal of Florida, Second District.
    January 03, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Keisha FREEMAN, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-4544
    District Court of Appeal of Florida, Second District.
    December 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Granted.