author: PITTMAN, Judge.

text:
    J.P.T. v. H.T.
    2160955
    Court of Civil Appeals of Alabama.
    December 1, 2017
    Keith A. Howard, Wetumpka, for appellant.
    Sebrina L. Martin, Montgomery, for appellee.
   PITTMAN, Judge.

J.P.T. ("the father") appeals from an amended judgment entered by the Elmore Juvenile Court ("the juvenile court") on June 30, 2017, in an action brought against him by H.T. ("the mother"). We dismiss the appeal with instructions.

In January 2017, the mother filed a petition in the juvenile court in which she alleged that, in October 2009, the juvenile court had entered a judgment ordering the father to pay child support for their child; that the father had failed to pay most of the child support he had been ordered to pay in that judgment; that the father's failure to pay child support had been willful and contemptuous; that, since the entry of the October 2009 judgment, there had been a material change in the parties' financial circumstances that warranted an increase in the amount of the monthly child-support payments established by the October 2009 judgment; and that the father's present financial circumstances would enable him to pay one-half of the child's medical and dental expenses and to provide insurance on the father's life, with the child named as the beneficiary. As relief, the mother sought recovery of the child-support arrearage and interest thereon; a finding that the father was in contempt for failing to pay child support; modification of the previous judgment to increase the amount of the father's monthly child-support payments, to provide that the father was obligated to pay one-half of the child's medical and dental expenses, and to provide that the father was to provide insurance on the father's life, with the child named as the beneficiary; and the award of an attorney fee. Thereafter, the juvenile court, with the consent of the parties and pursuant to § 12-15-106(b), Ala. Code 1975, assigned the mother's action to a referee. The referee held a hearing at which the parties stipulated that, after applying all the credits to which the father was entitled, the net amount of the child-support arrearage the father owed was $31,998. On April 20, 2017, pursuant to § 12-15-106(e), Ala. Code 1975, the referee filed her written findings and recommendations in the juvenile-court clerk's office. In her findings and recommendations, the referee found that the net amount of the father's child-support arrearage was $31,998; recommended that the father be ordered to pay that arrearage at the rate of $27.35 per month; recommended that, effective April 1, 2017, the father's child-support obligation be increased to $472.65 per month; stated that a separate order was contemporaneously being entered with regard to the mother's claim seeking an attorney fee; recommended that all other claims for relief be denied; notified the parties that the referee's findings and recommendations would not become the judgment of the juvenile court until they had been ratified by the juvenile-court judge; and notified the parties that each party had the right to request a rehearing before the juvenile-court judge by filing a request for such a rehearing within 14 days after the filing of the findings and recommendations.

That same day, i.e., April 20, 2017, the juvenile-court judge entered an order ratifying the referee's findings and recommendations. On April 24, 2017, the mother filed a Rule 59(e), Ala. R. Civ. P., postjudgment motion to alter, amend, or vacate the April 20, 2017, judgment. On May 2, 2014, the parties filed a joint motion, pursuant to Rule 1(B), Ala. R. Juv. P., asking the juvenile court to extend the 14-day period for it to rule on the mother's postjudgment motion for an additional 14 days. On May 4, 2017, the 10th day after the filing of the mother's postjudgment motion, the referee, rather than the juvenile-court judge, entered an order purporting to grant the joint motion to extend the 14-day period for ruling on the mother's postjudgment motion for an additional 14 days, and, on May 15, 2017, the 21st day after the filing of the mother's postjudgment motion, the referee, rather than the juvenile-court judge, entered an order purporting to deny the mother's postjudgment motion.

On May 23, 2017, 33 days after the filing of the referee's findings and recommendations, the mother filed a pleading titled "Mother's Objection to Referee's Report" in which she objected to the referee's findings and recommendations and moved the juvenile court to enter a judgment finding the father in contempt, requiring the father to make a lump-sum payment in the amount of $5,000 to purge himself of his contempt, and requiring the father to pay the rest of his arrearage at the rate of $325 per month. Thereafter, the juvenile-court judge held a hearing and, on June 30, 2017, entered an amended judgment purporting to find that the father was in contempt and purporting to order that the father be incarcerated until he had purged himself of his contempt by paying $5,000 and that the father pay the balance of the arrearage by making monthly payments in the amount of $325. On July 5, 2017, the juvenile-court judge entered an order stating that the juvenile-court clerk had received a receipt evidencing that the father had paid $5,000 and ordering that the father be released from jail.

On July 12, 2017, the father filed a Rule 59(e) postjudgment motion challenging the June 30, 2017, amended judgment. On July 14, 2017, the juvenile-court judge entered an order purporting to deny the father's July 12, 2017, postjudgment motion. On July 27, 2017, more than 14 days after the entry of the June 30, 2017, amended judgment, the father filed another motion in which he sought relief from that judgment pursuant to Rule 59(e). On August 24, 2017, the father filed a notice of appeal to this court. The juvenile-court judge subsequently certified that the record was adequate for an appeal to this court, pursuant to Rule 28(A), Ala. R. App. P.

Initially, we note that, although the juvenile-court judge certified that the record met the requirements for review by this court, the record on appeal does not contain transcripts of the hearings that were held in this action; indeed, the juvenile court's court reporter certified that "there is no official transcript available of the proceedings in th[is action]." Therefore, if the father's notice of appeal had been timely filed, the appeal would be transferred to the Elmore Circuit Court for a trial de novo. See Rules 28(B) and 28(D), Ala. R. Juv. P.; and S.J. v. K.J., 206 So.3d 641, 644 (Ala. Civ. App. 2016) ("Although the juvenile court certified the record as adequate for appellate review, that certification is not binding on this court." (citing R.G. v. C.M., 980 So.2d 417, 418 (Ala. Civ. App. 2007) )). However, for the reason discussed below, we conclude that the father's notice of appeal was not timely filed and that, therefore, the father's appeal is due to be dismissed rather than transferred to the Elmore Circuit Court.

The mother has filed a motion to dismiss the father's appeal, asserting that the father's notice of appeal was untimely filed because, the mother says, the father's July 27, 2017, motion was a repetitive Rule 59(e) motion that did not toll the running of the 14-day period for the father to file his notice of appeal. Therefore, according to the mother's reasoning, the father's notice of appeal was untimely because it was not filed within 14 days after July 14, 2017, the date the juvenile-court judge entered the order purporting to deny the father's July 12, 2017, Rule 59(e) motion.

Although we agree that the father's notice of appeal was untimely, our rationale for reaching that conclusion differs from the rationale asserted by the mother. After the referee's findings and recommendations were filed on April 20, 2017, the parties had 14 days to request a rehearing before the juvenile-court judge. See §§ 12-15-106(e) and 12-15-106(f). The entry of the juvenile-court judge's order ratifying the referee's findings and recommendations did not foreclose either party from requesting and receiving a rehearing before the juvenile-court judge. See Ex parte Quarles, 197 So.3d 499, 502-03 (Ala. Civ. App. 2015) ("A referee's findings and recommendations can become a judgment of the juvenile court when they are ratified by a juvenile-court judge, but, even in that instance, if a party has promptly and sufficiently applied for a rehearing, § 12-15-106(e)[, Ala. Code 1975,] grants that party an unqualified statutory right to a rehearing which Rule 1(B) [, Ala. R. Juv. P.,] cannot effectively negate." (citations omitted)). However, neither party filed a request for a rehearing before the juvenile-court judge within 14 days after the referee's findings and recommendations were filed on April 20, 2017. Instead, the mother elected to file a Rule 59(e) motion on April 24, 2017.

As noted above, the referee, rather than the juvenile-court judge, entered the order purporting to extend the 14-day period for a ruling on the mother's postjudgment motion and purported to rule on that motion on May 15, 2017. Section 12-15-106, Ala. Code 1975, does not specifically provide that a referee has the power to extend the period for a ruling on a postjudgment motion or to rule on a postjudgment motion. If the powers conferred on a referee by that Code section do not include the power to extend the period for a ruling on a postjudgment motion, the mother's postjudgment motion was denied by operation of law upon the elapsing of 14 days after it was filed. See Rule 1(B), Ala. R. Juv. P. (providing that a postjudgment motion in a juvenile-court action shall not remain pending for more than 14 days unless the 14-day period is validly extended pursuant to that rule). If the powers conferred on a referee by § 12-15-106 include the power to extend the period for a ruling on a postjudgment motion but do not include the power to rule on a postjudgment motion, the mother's postjudgment motion was denied by operation of law upon the elapsing of 28 days after it was filed. See Rule 1(B)(1), Ala. R. Juv. P. (providing that the 14-day period for ruling on a postjudgment motion may be extended by written order of the juvenile court "for not more than 14 additional days"). Thus, at the latest, the mother's postjudgment motion was denied by operation of law on May 22, 2017. Because this appeal would be due to be dismissed regardless of whether the mother's postjudgment motion was denied by operation of law on May 8, 2017, the 14th day after it was filed; by the referee's order on May 15, 2017; or by operation of law on May 22, 2017, the 28th day after it was filed, we need not decide whether the referee had the power to extend the 14-day period for a ruling on the mother's postjudgment motion or the power to rule on the mother's postjudgment motion.

If the mother's Rule 59(e) motion was denied on May 22, 2017, the latest date it could have been denied, the parties had 14 days from May 22, 2017, to file notices of appeal from the April 20, 2017, judgment that had resulted from the entry of the juvenile-court judge's April 20, 2017, order ratifying the findings and recommendations of the referee. However, neither party filed a notice of appeal within that 14-day period. Instead, the mother elected to file her pleading titled "Mother's Objection to Referee's Report" on May 23, 2017. That pleading, even if it were deemed to be a request for a rehearing before the juvenile-court judge despite its failure to expressly request such a rehearing, was untimely because it was not filed within 14 days after the filing of the referee's findings and recommendations on April 20, 2017. See §§ 12-15-106(e) and 12-15-106(f). Therefore, the juvenile court lost jurisdiction over this action, at the latest, on May 22, 2017, and the mother's pleading titled "Mother's Objection to Referee's Report" did not invoke the juvenile court's jurisdiction anew. Thus, the June 30, 2017, amended judgment and all other orders entered by the juvenile-court judge subsequent to May 22, 2017, are void.

Accordingly, the only valid judgment entered by the juvenile court was the April 20, 2017, judgment that resulted from the juvenile-court judge's ratification of the referee's findings and recommendations on that date. That judgment remains in effect because, as discussed above, the juvenile court lost jurisdiction to amend it, at the latest, on May 22, 2017. Thus, the father's notice of appeal is untimely because it was not filed within 14 days after the denial of the mother's Rule 59(e) motion, which occurred, at the latest, on May 22, 2017. Accordingly, because his notice of appeal was untimely filed, we dismiss the father's appeal, albeit with instructions to the juvenile court to set aside the June 30, 2017, amended judgment and all other orders entered by the juvenile-court judge subsequent to May 22, 2017. The mother's motion to dismiss the appeal is denied as moot.

APPEAL DISMISSED WITH INSTRUCTIONS.

Thomas, Moore, and Donaldson, JJ., concur.

Thompson, P.J., concurs in the result, without writing.

      Section 12-15-106(b) provides that, subject to certain exceptions not here applicable, "[t]he presiding judge of the juvenile court may direct that [a referee appointed in accordance with § 12-15-106(a), Ala. Code 1975,] handle various kinds of juvenile and child-support cases ...."

      In pertinent part, § 12-15-106(e) provides:
      "(1) After conducting a hearing in a juvenile or child-support case, if the referee has made a decision at the conclusion of the hearing, the referee shall immediately reduce his or her findings and recommendations to writing and then transmit those written findings and recommendations to the clerk of the juvenile court for filing and to a judge with authority over juvenile matters for his or her signature pursuant to subsection (g). If the parties are present at the hearing, copies of the written findings and recommendations shall be given to the parties in open court. The written findings and recommendations shall contain a notice that any party has a right to request a rehearing within 14 days of the date those findings and recommendations were filed in the office of the clerk of juvenile court.
      "(2) If the referee has not made a decision on the matter at the conclusion of the hearing or if the parties are not present in open court, the referee, within three business days of making his or her decision, shall transmit his or her written findings and recommendations to the clerk of the juvenile court for filing and to a judge with authority over juvenile matters for his or her signature pursuant to subsection (g). Once the clerk files the written findings and recommendations, the clerk shall send to the parties, by first class mail, copies of the findings and recommendations containing a notice informing them that they have the right to request a rehearing within 14 days of the date the findings and recommendations were filed in the office of the clerk of the juvenile court."

      In pertinent part, § 12-15-106(f), Ala. Code 1975, provides: "A rehearing before a judge with authority over juvenile court matters concerning the matter heard by the referee shall be scheduled if any party files a written request therefor within the time frames provided in subsection (e)." Section 12-15-106(g), Ala. Code 1975, provides: "The findings and recommendations of the referee shall become the order of the juvenile court when ratified by the original signature of a judge with authority over juvenile matters."

      The Alabama Rules of Juvenile Procedure do not specifically provide for postjudgment motions; however, Rule 1(A), Ala. R. Juv. P., provides, in pertinent part, that "[i]f no procedure is specifically provided in [the Alabama Rules of Juvenile Procedure] or by statute, the Alabama Rules of Civil Procedure shall be applicable to those matters that are considered civil in nature ...."

      In pertinent part, Rule 1(B), Ala. R. Juv. P., provides:
      "All postjudgment motions, whether provided for by the Alabama Rules of Civil Procedure or the Alabama Rules of Criminal Procedure, must be filed within 14 days after the entry of order or judgment and shall not remain pending for more than 14 days, unless, within that time, the period during which a postjudgment motion may remain pending is extended:
      "(1) By written order of the juvenile court on its own motion, or upon motion of a party for good cause shown, for not more than 14 additional days ...."

      Rule 28(B) provides that, if a record adequate for appellate review does not exist, an appeal from a final judgment of a juvenile court "shall be to the circuit court for trial de novo." In pertinent part, Rule 28(D) provides: "An appellate court ... may transfer an appeal to another court if it determines that the appeal ... should have been brought in that court."


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Wendell SIMMONS and Team Simco Lifter, Inc. v. Donald David COOK
    2160171
    Court of Civil Appeals of Alabama.
    December 1, 2017
    Braxton Blake Lowe, Gulf Shores, for appellants.
    J. Craig Campbell, Blane H. Crutchfield, and Douglas W. Fink of Hand Arendall LLC, Mobile, for appellee.
   MOORE, Judge.

Wendell Simmons appeals from a judgment entered by the Baldwin Circuit Court ("the trial court") against him and in favor of Donald David Cook following a trial on the merits; Team Simco Lifter, Inc. ("Team Simco"), appeals from a default judgment entered against it by the trial court. We affirm the trial court's judgments as to both Simmons and Team Simco.

Procedural History

On September 8, 2014, Cook filed a complaint against Simmons and Team Simco, alleging claims of negligence, breach of contract, breach of the warranties of merchantability and fitness for a particular purpose, misrepresentation, and fraudulent concealment related to Cook's purchase of a boat lift. On November 25, 2014, Cook filed an application for an entry of default against both defendants. On December 3, 2014, the trial court ordered Cook to submit "an Affidavit from a party, with personal knowledge, verifying the allegations in the Complaint before a default judgment can be entered." Simmons, acting pro se, subsequently filed an answer and a counterclaim. On January 12, 2015, the trial court entered an order stating that Team Simco "must file a proper Answer with the Court, through its attorney, within 30 days or a default will be entered against it." On February 11, 2015, Simmons purported to file an answer on behalf of Team Simco.

On March 27, 2015, in accordance with the trial court's December 3, 2014, order, Cook filed a supplement to his application for entry of default, requesting the entry of a default judgment and attaching his own affidavit concerning the allegations of the complaint and his request for damages. On April 1, 2015, the trial court entered a default judgment against Team Simco, awarding Cook compensatory damages in the amount of $12,600 and punitive damages in the amount of $40,000.

After a trial on the claims against Simmons, the trial court entered a judgment on June 21, 2016, in favor of Cook and against Simmons in the amount of $7,800; the trial court also entered a judgment in favor of Cook on Simmons's counterclaim. On July 21, 2016, Braxton Lowe, an attorney, entered an appearance on behalf of Simmons and Team Simco; that same day, he filed a postjudgment motion on behalf of both defendants. In that postjudgment motion, Team Simco challenged, for the first time, the admissibility of Cook's affidavit that was filed in support of his supplement to the application for entry of default, which included a request for a default judgment. Also in the postjudgment motion, Simmons argued that the trial court had erred by piercing the corporate veil of Team Simco. The postjudgment motion also raised other arguments not pertinent to this appeal.

On October 20, 2016, the trial court entered an order setting aside the award of punitive damages against Team Simco but otherwise denying the postjudgment motion. On December 1, 2016, Simmons and Team Simco filed a joint notice of appeal to this court. We transferred the appeal to the Alabama Supreme Court for lack of subject-matter jurisdiction; that court then transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

Discussion

Initially, we note that we called for letter briefs on the issue whether the trial court had jurisdiction to enter its October 20, 2016, order in light of Rule 59.1, Ala. R. Civ. P. The parties responded, and Simmons and Team Simco provided a copy of a motion to continue that was filed on September 2, 2016, by Cook, which was omitted from the record on appeal. Simmons and Team Simco also attached to their letter brief a copy of an order granting Cook's motion; that order was also omitted from the record on appeal. This court ordered the trial court to supplement the record on appeal with those documents. See Rule 10(f), Ala. R. App. P. ("The appellate court may, on the motion of a party or on its own initiative, order that a supplemental or corrected record be certified and transmitted to the appellate court if necessary to correct an omission or misstatement ....").

In the motion to continue, Cook represented to the trial court that Simmons and Team Simco had no objection to the continuance of the hearing that had previously been set on the postjudgment motion and that Cook "consents to and waives the right to raise the 90-day rule under Alabama Rule of Civil Procedure 59.1."

Rule 59.1, Ala. R. Civ. P., provides:

"No postjudgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record .... A failure by the trial court to render an order disposing of any pending postjudgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period."

In Butler v. Phillips, 3 So.3d 922, 924 n.1 and accompanying text (Ala. Civ. App. 2008), this court held that an agreement between the parties stating that the parties " 'agree[d] to extend the time for the [trial] Court's ruling on postjudgment motions presently pending in this cause past ninety (90) days' " "demonstrate[d] the parties' 'express consent' to extend the time allowed under Rule 59.1 and [appeared] 'of record,' " and that that joint agreement was sufficient to extend the 90-day period for the trial court to rule on the postjudgment motions. Similarly, in the present case, we conclude that the language of the motion to continue is sufficient to meet the requirements of Rule 59.1.

On appeal, the only arguments for which Simmons and Team Simco cite authority are (1) whether Cook's affidavit filed in support of the supplement to his application for entry of default, including his request for a default judgment, was admissible and (2) whether there was evidence to support piercing the corporate veil of Team Simco to hold Simmons liable.

I.

We first address Team Simco's argument that Cook's affidavit, which was filed in support of his supplement to the application for entry of default, including his request for the entry of a default judgment, was inadmissible. In support of its argument, Team Simco cites law that is applicable to affidavits filed pursuant to Rule 56, Ala. R. Civ. P. Even assuming that those requirements would be applicable to an affidavit filed pursuant to Rule 55, Ala. R. Civ. P., which concerns default judgments, we note that Team Simco failed to file a motion to strike the affidavit and did not raise any issue with regard to the affidavit until after the final judgment was entered.

"[A] party must move the trial court to strike any evidence that violates Rule 56(e), Ala. R. Civ. P. An objection to the inadmissible evidence alone is not sufficient. The motion to strike brings the objection to the trial court's attention and requires action on the part of the trial court to properly preserve the ruling on appeal."

Ex parte Secretary of Veterans Affairs, 92 So.3d 771, 777 (Ala. 2012) (footnote omitted). Accordingly, we conclude that Team Simco waived this issue. Id.; see also Ex parte Elba Gen. Hosp., 828 So.2d 308, 314 (Ala. 2001).

We also note that, although Team Simco argues that an exception should be made to prevent a gross miscarriage of justice, our supreme court, in Ex parte Elba General Hospital, 828 So.2d at 314, specifically declined to apply such an exception in light of the strong policy behind the requirement of preservation. In light of that decision and perceiving no gross miscarriage of justice in the admission of the affidavit, we decline to reverse the trial court's default judgment on this point.

II.

With regard to Simmons's argument that the trial court erred in piercing Team Simco's corporate veil, we note that Cook did not request the trial court to pierce the corporate veil and that the trial court did not indicate that it was piercing the corporate veil. In fact, there was no discussion of piercing the corporate veil until the postjudgment motion was filed.

Our supreme court has explained that "[a] corporate agent who personally participates, albeit in his or her capacity as such agent, in a tort is personally liable for the tort." Sieber v. Campbell, 810 So.2d 641, 645 (Ala. 2001). In its June 21, 2016, judgment, the trial court found that Simmons was liable for his "failure to properly instruct or identify the 'auto stop' [on the boat lift] as non-operational." That finding indicates that the trial court concluded that Simmons had personally participated in the tort. Considering the language of the trial court's judgment, the fact that neither the trial court nor the parties mentioned piercing the corporate veil before the entry of the June 21, 2016, judgment, and the fact that this court will not presume error, see Walnut Equip. Leasing Co. v. Graham, 532 So.2d 655, 655 (Ala. Civ. App. 1988) ("an appellate court will not presume error"), we conclude that the trial court found Simmons personally liable and did not pierce the corporate veil of Team Simco.

Conclusion

Based on the foregoing, we affirm the default judgment entered against Team Simco and the judgment entered against Simmons.

AFFIRMED.

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

Thomas, J., dissents, with writing, which Pittman, J., joins.

Wendell Simmons and Team Simco Lifter, Inc. ("Team Simco"), appeal a judgment of the Baldwin Circuit Court ("the trial court") in favor of Donald David Cook. The majority affirms the trial court's judgment. I respectfully dissent.

The trial court entered a final judgment on June 21, 2016. On July 21, 2016, Simmons and Team Simco jointly filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P. The postjudgment motion was denied by operation of law on October 19, 2016. See Rule 59.1, Ala. R. Civ. P. On October 20, 2016, the trial court entered an order purporting to rule on the postjudgment motion. On December 1, 2016, Simmons and Team Simco jointly filed a notice of appeal, which was untimely because it was filed more than 42 days after their postjudgment motion had been denied by operation of law. See Rule 4(a)(1), Ala. R. App. P. "[A]n untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived." Parker v. Parker, 946 So.2d 480, 485 (Ala. Civ. App. 2006). I would therefore dismiss the appeal.

The main opinion reasons that the 90-day period imposed by Rule 59.1, Ala. R. Civ. P., was extended, and the appeal therefore timely filed, based on a September 2, 2016, motion that Cook filed in the trial court ("Cook's motion"). The trial court entered an order granting Cook's motion on September 6, 2016. As noted by the majority, extending the 90-day period requires "the express consent of all the parties, which consent shall appear of record ...." Rule 59.1.

Unlike the joint agreement in Butler v. Phillips, 3 So.3d 922 (Ala. Civ. App. 2008), which is cited by the majority, Cook's motion expresses only his consent to extending the 90-day period. Regarding Simmons and Team Simco, Cook's motion states only that their "counsel ... has no objection to a continuance" of the postjudgment hearing. "[C]onsent to extend the time for a hearing on a postjudgment motion does not equate to consent to extend the pendency of the postjudgment motion beyond the 90-day period prescribed by Rule 59.1, Ala. R. Civ. P." Ex parte Bodenhamer, 904 So.2d 294, 295 (Ala. 2004). Moreover, even if Cook's motion had purported to express the consent of Simmons and Team Simco to extending the 90-day period, it was not executed by their attorney, which this court has deemed necessary under similar circumstances. See Brown v. Brown, 808 So.2d 40, 41 (Ala. Civ. App. 2001). More generally, even if Simmons and Team Simco had no objection to extending the 90-day period,

" '[t]he language of Rule 59.1 requires express consent. And the law has long recognized a material distinction between "assent" and "consent," the former meaning passive or submissive conduct while the latter involves positive action.... In the instant case counsel for [Simmons and Team Simco] did not take positive steps to express in a direct and unequivocal manner that he was willing to extend the 90 day period nor did his assent to the continuation of the proceedings constitute a waiver of the requirement of express consent.' "

Harrison v. Alabama Power Co., 371 So.2d 19, 21 (Ala. 1979) (quoting Personnel Bd. for Mobile Cty. v. Bronstein, 354 So.2d 8, 11 (Ala. Civ. App. 1977) )(footnote omitted). Finally, even though the parties appear to agree on appeal that the 90-day period was extended, their agreement does not prohibit us from considering the timeliness of the appeal because, as noted above, that question impacts this court's subject-matter jurisdiction and "a court's lack of subject-matter jurisdiction may be raised at any time ... and may even be raised by a court ex mero motu." C.J.L. v. M.W.B., 868 So.2d 451, 453 (Ala. Civ. App. 2003). For the foregoing reasons, Cook's motion does not alter my conclusion that this appeal should be dismissed.

Pittman, J., concurs.

      The entry of the judgment against Simmons disposed of the remaining pending claims in the matter and, thus, rendered the default judgment against Team Simco final. See, e.g., Sanders v. Sanders, 32 So.3d 597, 599 (Ala. Civ. App. 2009) (" 'A final judgment is one that disposes of all the claims and controversies between the parties.' " (quoting Heaston v. Nabors, 889 So.2d 588, 590 (Ala. Civ. App. 2004) )).


text:
    EX PARTE ALABAMA SURFACE MINING COMMISSION
    (In re: John T. Crane, Dan Jett, and Linda Jett v. Alabama Surface Mining Commission and Black Warrior Minerals, Inc.)
    Ex parte Black Warrior Minerals, Inc.
    (In re: John T. Crane, Dan Jett, and Linda Jett v. Alabama Surface Mining Commission and Black Warrior Minerals, Inc.)
    2160876 2160887
    Court of Civil Appeals of Alabama.
    December 1, 2017
    G. Milton McCarthy, deputy atty. gen., Jasper, for petitioner Alabama Surface Mining Commission.
    Jeff Friedman and Joseph L. Kerr, Jr., of Friedman, Dazzio, Zulanas & Bowling, P.C., Birmingham, for petitioner Black Warrior Minerals, Inc.
    Clay Ragsdale of Ragsdale LLC, Birmingham; and Walton D. Morris, Jr., of Morris Law Office, PC, Charlottesville, Virginia, for respondents.
    Edward R. Jackson and James Brakefield of Jackson, Fikes & Brakefield, Jasper, for amicus curiae Alabama Coal Association, in support of the petitioners.
   MOORE, Judge.

In case no. 2160876, the Alabama Surface Mining Commission ("the Commission") petitions this court for a writ of mandamus directing the Jefferson Circuit Court to dismiss the appeal filed by John T. Crane, Dan Jett, and Linda Jett ("the property owners") challenging the Commission's issuance of a surface-coal-mining permit to Black Warrior Minerals, Inc. ("Black Warrior"); alternatively, the Commission requests that this court direct the Jefferson Circuit Court to transfer the appeal to the Walker Circuit Court. In case no. 2160887, Black Warrior requests the same relief. We deny both petitions.

Procedural History

On March 31, 2016, the Commission issued Black Warrior a surface-coal-mining permit, permit no. P-3987 ("the permit"). The property owners appealed the issuance of the permit to the Commission's Division of Hearings and Appeals; the issuance of the permit was affirmed on November 8, 2016. On December 2, 2016, the property owners filed, pursuant to § 9-16-79(1)d., Ala. Code 1975, a part of "The Alabama Surface Mining Control and Reclamation Act of 1981" ("the Alabama Act"), § 9-16-70 et seq., Ala. Code 1975, a petition for review of the hearing officer's decision. The Commission took no action on the petition within 30 days of its filing, and, thus, the petition was deemed denied. See § 9-16-79(3)a., Ala. Code 1975.

On January 30, 2017, the property owners appealed to the Jefferson Circuit Court. On March 2, 2017, the Commission and Black Warrior filed motions to dismiss or, alternatively, to transfer the appeal to the Walker Circuit Court. All the parties briefed the issue whether the Walker Circuit Court or the Jefferson Circuit Court is the proper court to hear the appeal. On June 28, 2017, the Jefferson Circuit Court denied the motions filed by the Commission and Black Warrior. On August 9, 2017, the Commission and Black Warrior filed their respective petitions with this court.

Standard of Review

" ' "The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 302 (Ala. 1986). 'Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995). 'When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court [exceeded] its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner.' Id. Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co., 663 So.2d 932, 936 (Ala. 1995)." '
" Ex parte Southeast Alabama Timber Harvesting, LLC, 94 So.3d 371, 373 (Ala. 2012) (quoting Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala. 1998) )."

Ex parte Tier 1 Trucking, LLC, 222 So.3d 1107, 1110 (Ala. 2016).

Discussion

"The Surface Mining [Control and Reclamation] Act [of 1977] is a comprehensive statute designed to 'establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.' § 102(a), 30 U.S.C. § 1202(a) (1976 ed., Supp. III). Title II of the Act, 30 U.S.C. § 1211 (1976 ed., Supp. III), creates the Office of Surface Mining Reclamation and Enforcement (OSM), within the Department of the Interior, and the Secretary of the Interior (Secretary) acting through OSM, is charged with primary responsibility for administering and implementing the Act by promulgating regulations and enforcing its provisions. § 201(c), 30 U.S.C. § 1211(c) (1976 ed., Supp. III)....
"....
"Section 501(b), 30 U.S.C. § 1251(b) (1976 ed., Supp. III), directs the Secretary to promulgate regulations establishing a permanent regulatory program incorporating all the Act's performance standards. The Secretary published the permanent regulations on March 13, 1979, see 44 Fed. Reg. 14902, but these regulations do not become effective in a particular State until either a permanent state program, submitted and approved in accordance with § 503 of the Act, or a permanent federal program for the State, adopted in accordance with § 504, is implemented.
"Under § 503, any State wishing to assume permanent regulatory authority over the surface coal mining operations on 'non-Federal lands' within its borders must submit a proposed permanent program to the Secretary for his approval. The proposed program must demonstrate that the state legislature has enacted laws implementing the environmental protection standards established by the Act and accompanying regulations, and that the State has the administrative and technical ability to enforce these standards. 30 U.S.C. § 1253 (1976 ed., Supp. III). The Secretary must approve or disapprove each such proposed program in accordance with time schedules and procedures established by §§ 503(b)(c), 30 U.S.C. §§ 1253(b), (c) (1976 ed., Supp. III)."

Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 268-72, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) (footnotes omitted).

The State of Alabama enacted the Alabama Act in order "to implement and enforce [the federal Surface Mining Control and Reclamation Act of 1977], and the permanent regulations promulgated thereunder, as required for the state to retain exclusive jurisdiction over the regulation of surface coal mining and reclamation operations." § 9-16-71(b), Ala. Code 1975.

In 2015, § 9-16-79(4)b., a part of the Alabama Act, was amended by Act No. 2015-383, Ala. Acts 2015, to provide for judicial review of a final decision of the Commission "in the circuit court of the county in which the commission maintains its principal office." Because the Commission maintains its principal office in Walker County, according to § 9-16-79(4)b. the appeal would lie in the Walker Circuit Court, not the Jefferson Circuit Court. Before the 2015 amendment to § 9-16-79(4)b., judicial review was proper in the Jefferson Circuit Court pursuant to § 41-22-20(b), Ala. Code 1975.

Ex parte Water Works Bd. of Birmingham, 177 So.3d 1167, 1173 (Ala. 2014).

Section 732.17(g), 30 C.F.R., provides:

"Whenever changes to laws or regulations that make up the approved State program are proposed by the State, the State shall immediately submit the proposed changes to the Director as an amendment. No such change to laws or regulations shall take effect for purposes of a State program until approved as an amendment."

"Director" is defined in 30 C.F.R. § 700.5 as "the Director, Office of Surface Mining Reclamation and Enforcement, or the Director's representative."

At the time the property owners' appeal to the Jefferson Circuit Court was commenced on January 30, 2017, the 2015 amendment to § 9-16-79(4)b. had been submitted for approval by the Director, but it had not yet been approved. Therefore, the property owners argue that § 9-16-79(4)b., as amended, was not yet in effect and, therefore, that the Jefferson Circuit Court was the proper court in which to file their appeal.

In their petitions for a writ of mandamus, the Commission and Black Warrior argue that matters of judicial review are not part of the "approved State program" and, therefore, that no approval of the amendment to § 9-16-79(4)b. was required.

Section 1291(25), 30 U.S.C., defines "State program" as "a program established by a State pursuant to section 1253 of this title to regulate surface coal mining and reclamation operations, on lands within such State in accord with the requirements of this chapter and regulations issued by the Secretary [of the Interior] pursuant to this chapter."

Section 732.15, 30 C.F.R., provides:

"The Secretary [of the Interior] shall not approve a State program unless, on the basis of information contained in the program submission, comments, testimony and written presentations at the public hearings, and other relevant information, the Secretary finds that-
"....
"(b) The State regulatory authority has the authority under State laws and regulations pertaining to coal exploration and surface coal mining and reclamation operations and the State program includes provisions to-
"....
"(15) Provide for judicial review of State program actions in accordance with State law, as provided in section 526(e) of the [Surface Mining Control and Reclamation Act of 1977], except that judicial review of State enforcement actions shall be in accordance with section 526 of the Act. Judicial review in accordance with State law shall not be construed to limit the operation of the rights established in section 520 of the Act, except as provided in that section."

As noted previously, 30 C.F.R. § 732.17(g) provides that no change to the State program may take effect until that change is approved by the Director. Because the regulations specify that the approval of state programs by the Secretary of the Interior includes the manner of judicial review provided by those programs, we cannot agree with the Commission and Black Warrior that the amendment to § 9-16-79(4)b. is not a part of the state program so as to be exempt from the approval requirement.

The Commission and Black Warrior cite In re Permanent Surface Mining Regulation Litigation, 653 F.2d 514 (D.C. Cir. 1981), in support of their arguments. In that case, the United States Court of Appeals for the District of Columbia Circuit stated: "Administrative and judicial appeals of permit decisions are matters of state jurisdiction in which the Secretary [of the Interior] plays no role." 653 F.2d at 519. The context of that statement indicates that the Court of Appeals recognized that the state, not the Secretary of the Interior, is responsible for actually administering the approved state program, including judicial review. We cannot conclude that the decision in Permanent Surface was attempting to assert that the Secretary of the Interior lacked the authority to approve the judicial-review component of a state program prior to the state's administering that program.

The Commission and Black Warrior also cite Pennsylvania Federation of Sportsmen's Clubs, Inc. v. Kempthorne, 497 F.3d 337 (3d Cir. 2007), in support of their position that approval was not required for the amendment to § 9-16-79(4)b. to be effective. In Kempthorne, the Pennsylvania Federation of Sportsmen's Clubs argued that 30 C.F.R. § 732.17(g) required that Pennsylvania obtain approval to dissolve its alternative bond system in favor of a conventional bond system. However, the United States Court of Appeals for the Third Circuit noted that Pennsylvania's state program included the option to implement either type of bond system. That case is unlike the case before us, however, because Alabama's state program did not provide the option to provide for alternative courts to provide judicial review.

In conclusion, we hold that the amendment to § 9-16-79(4)b. is a change to the law that comprises Alabama's "approved State program" within the meaning of 30 C.F.R. § 732.17(g), and, therefore, that amendment was of no effect until the approval required by § 732.17(g) was obtained. Therefore, the Jefferson Circuit Court correctly denied the Commission's and Black Warrior's motions to dismiss or, alternatively, to change venue. Because the Commission and Black Warrior have failed to show a clear legal right to the relief requested, we deny their petitions for a writ of mandamus.

2160876-PETITION DENIED.

2160887-PETITION DENIED.

Thomas, J., concurs.

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

Thompson, P.J., dissents, with writing, which Pittman, J., joins.

I do not believe that federal law requires the United States Secretary of the Interior ("the secretary") or an agent of the secretary to approve Alabama's 2015 amendment to § 9-16-79(4)b., Ala. Code 1975 ("the amendment"). The amendment provides that venue in cases seeking judicial review of decisions of the Alabama Surface Mining Commission ("the commission") is in the circuit court of the county in which the commission maintains its principal office, i.e., Walker County.

The main opinion concludes that the secretary or an agent of the secretary must approve the amendment before it can become effective. Before the amendment, venue would have been proper in Jefferson County, the location of the mining operation subject to the permit at issue. Because the amendment had not received federal approval at the time judicial review was initiated in Jefferson County, the main opinion reasons, venue remains proper in Jefferson County, and, therefore, it denies the petitions for a writ of mandamus filed by the commission and Black Warrior Minerals, Inc. ("Black Warrior").

The commission and Black Warrior rely on In re Permanent Surface Mining Regulation Litigation, 653 F.2d 514 (D.C. Cir. 1981), to support their position that the secretary or an agent of the secretary is not required to approve the amendment for it to be effective in Alabama. In that case, the United States Court of Appeals for the District of Columbia Circuit explained the relationship between the federal Surface Mining Control and Reclamation Act of 1977 ("the Act") and the states' regulatory schemes involving surface mining, writing:

"Congress chose a special kind of regulatory structure for the Surface Mining [Control and Reclamation] Act [of 1977], in which the federal government shares administrative responsibility with the states. Rather than reposing all decisionmaking power with the Secretary of the Interior, Congress afforded the states an opportunity to propose regulatory programs of their own, conforming to the requirements of the Act and to regulations promulgated by the Secretary. Under a state program, the state makes decisions applying the national requirements of the Act to the particular local conditions of the state. The Secretary is initially to decide whether the proposed state program is capable of carrying out the provisions of the Act, but is not directly involved in local decisionmaking after the program has been approved.
"....
"In an approved and properly enforced state program, the state has the primary responsibility for achieving the purposes of the Act. First, the state is the sole issuer of permits. In performing this centrally important duty, the state regulatory authority decides who will mine in what areas, how long they may conduct mining operations, and under what conditions the operations will take place. See Act §§ 506, 510. It decides whether a permittee's techniques for avoiding environmental degradation are sufficient and whether the proposed reclamation plan is acceptable. Act § 510(b). The state sets the amount of the bond to be posted by the operator, and inspects the mine to determine compliance. Act §§ 509, 517. When permit conditions are violated, the state is charged with imposing appropriate penalties. Act § 518(I).
"Finally, it is with an approved state law and with state regulations consistent with the Secretary's that surface mine operators must comply. See Act § 503(a), 518(I). Administrative and judicial appeals of permit decisions are matters of state jurisdiction in which the Secretary plays no role. Act § 514.7 "As long as the state properly enforces its approved program, it is the exclusive 'on the scene' regulatory authority. It is, essentially, the entity that applies the general standards of the Act to the particular geographical and geological circumstances of the state. Congress cited the flexibility achieved in this allocation of regulatory functions as its reason for leaving 'primary governmental responsibility' with the states. Act § 101(f)."

Id. at 518-19 (footnotes omitted; emphasis added).

After quoting the emphasized sentence set forth above, the main opinion states that "[w]e cannot conclude that the decision in Permanent Surface was attempting to assert that the Secretary of the Interior lacked the authority to approve the judicial-review component of a state program prior to the state's administering the program." 254 So. 3d at 909. However, my research has revealed no authority that would support the main opinion's conclusion. To the contrary, other statutes and regulations would indicate that the secretary is not required to approve state procedural rules and laws regarding such matters as deciding venue to judicially review a decision regarding a permit challenge.

Although the statement, "[a]dministrative and judicial appeals of permit decisions are matters of state jurisdiction in which the Secretary plays no role," Permanent Surface, 653 F.2d at 519, is dictum, in my opinion, it indicates an intention for the secretary to leave matters such as the venue of judicial review of a decision regarding a permit challenge to the states. The Act itself provides that

"[a]ction of the State regulatory authority pursuant to an approved State program shall be subject to judicial review by a court of competent jurisdiction in accordance with State law, but the availability of such review shall not be construed to limit the operation of the rights established in section 1270 of this title except as provided therein."

30 U.S.C. § 1276(e) (emphasis added).

Regulations governing the Act also appear to allow states to follow their own rules of court procedure when conducting a judicial review of the grant or denial of a permit. For example, 30 C.F.R. § 732.17 provides, in part:

"(a) This section applies to any alteration of an approved State program whether accomplished on the initiative of the State regulatory authority or the Director [of the Office of Surface Mining Reclamation and Enforcement]. Such alterations are referred to in this section as 'amendments.'
"(b) The State regulatory authority shall promptly notify the Director, in writing, of any significant events or proposed changes which affect the implementation, administration or enforcement of the approved State program. At a minimum, notification shall be required for-
"(1) Changes in the provisions, scope or objectives of the State program;
"(2) Changes in the authority of the regulatory authority to implement, administer or enforce the approved program;
"(3) Changes in the State law and regulations from those contained in the approved State program;
"(4) Significant changes in staffing and resources of the regulatory authority and divisions or departments of other agencies with duties in the approved program;
"(5) Changes in agreements between the regulatory authority and other agencies which have duties in the approved program;
"(6) Significant changes in funding or budgeting relative to the approved program; and
"(7) Significant changes in the number or size of coal exploration or surface coal mining and reclamation operations in the State."

30 C.F.R. § 732.17(a) and (b).

"Whenever changes to laws or regulations that make up the approved State program are proposed by the State, the State shall immediately submit the proposed changes to the Director as an amendment. No such change to laws or regulations shall take effect for purposes of a State program until approved as an amendment."

30 C.F.R. § 732.17(g). The regulations suggest that the role of the secretary or an agent of the secretary is to approve the requirements developed for use in the state programs that are unique to the Act, such as the conditions pursuant to which permits are required, the prerequisites that must be met in applying for permits, the issuance of permits, and similar considerations. Again, in my opinion, venue of an action for the judicial review of the granting or denial of a permit is not of the same type as the actions that require the approval of the secretary or an agent of the secretary.

Because I do not think the approval of the secretary or an agent of the secretary is required for the amendment to be effective, I also believe that the commission and Black Warrior have demonstrated a clear legal right to change the venue of the judicial review of the decision granting the permit to Walker County. Thus, I would grant the petitions and direct the Jefferson Circuit Court to vacate its order denying the motions to change venue and to enter an order transferring the matter to the Walker Circuit Court, pursuant to § 9-16-79(4)b.

Pittman, J., concurs.

      The property owners argue that this court lacks jurisdiction to determine this issue because, they assert, the Commission and Black Warrior's argument amounts to an attack on the applicable federal regulations and, they note, "any action which is tantamount to an attack on a federal regulation" must be heard by the United States Court of Appeals for the District of Columbia Circuit. See Commonwealth of Virginia ex rel. Virginia Dep't of Conservation & Econ. Dev. v. Watt, 741 F.2d 37, 40 (4th Cir. 1984) (citing Tug Valley Recovery Ctr. v. Watt, 703 F.2d 796 (4th Cir. 1983), and 30 U.S.C. § 1276(a)(1) ). However, unlike the decisions of the United States Court of Appeals for the Fourth Circuit cited by the property owners, this court is not asked to examine the merits of federal regulations; rather, this court is merely applying those regulations to the case before us.

      In light of our denial of the petitions, we pretermit discussion of the property owners' argument that the Commission and Black Warrior are estopped from presenting their arguments.


author: JOINER, Judge.

text:
    Laura Arteaga GONZALEZ v. CITY OF HOMEWOOD
    CR-15-1272
    Court of Criminal Appeals of Alabama.
    June 9, 2017 Rehearing Denied August 4, 2017 Certiorari Denied December 8, 2017
    Alabama Supreme Court 1161022
    Katherine P. Bounds, Birmingham, for appellant.
    Walter L. Blocker III, Birmingham, for appellee.
   JOINER, Judge.

Laura Arteaga Gonzalez appeals her convictions in the Jefferson Circuit Court for violating the city's ordinances prohibiting animals to run at large and keeping a vicious animal. Gonzalez was initially convicted in the Homewood Municipal Court and then filed a notice of appeal for a jury trial de novo in the Jefferson Circuit Court. The circuit court denied her request for a jury trial and, following a bench trial on July 12, 2016, convicted Gonzalez of violating both ordinances. She received concurrent sentences of five days' hard labor in the Homewood city jail for each violation and was fined $200 plus court costs.

Facts and Procedural History

On July 3, 2015, Doreen Skillen and Carol Speed were walking through their neighborhood when two dogs approached them. Both women testified that the dogs jumped them and bit Skillen on the leg and the back.

Around that time, Justin McCarty was getting out of his Stanley Steemer cleaning van in a customer's driveway, and one of the dogs approached him. According to McCarty, the larger of the two dogs "nibbled playfully" on him and scratched him with its teeth.

Later, Sgt. John Carr and Officer Ted Springfield were called to the scene. Sgt. Carr testified that, when he arrived, he saw one of the dogs trying to bite McCarty. Sgt. Carr further testified that, when he whistled at the dog to get it away from McCarty, the dog charged at him. Feeling threatened, Sgt. Carr pulled out his gun and then shot and killed the dog. The other dog was impounded. Officer Springfield then arrested Gonzalez.

Following her arrest, Gonzalez was convicted in the Homewood Municipal Court for allowing animals to run at large, keeping a vicious animal, and refusing to comply with a lawful order. Thereafter, Gonzalez filed timely notice of appeal for a jury trial de novo in the Jefferson Circuit Court, pursuant to Rule 30.1, Ala. R. Crim. P.

The notice-of-appeal forms Gonzalez used to file her appeal in the Jefferson Circuit Court contained two boxes with signature lines under each box by which she could select either "Trial Without Jury" or "Defendant Demands Trial by Jury." Gonzalez initialed and dated the blanks on all three forms under the box stating "Defendant Demands a Jury Trial"; however, she checked this box only on the form relating to the refusal-to-comply-with-a-lawful-order charge. She did not do so on the forms for her remaining two charges.

Before the trial de novo in the Jefferson Circuit Court, the City of Homewood dismissed the failure-to-comply-with-a-lawful-order charge but decided to proceed on the remaining two charges. The circuit court determined that, because the dismissed charge was the only charge as to which Gonzales had checked the box demanding a jury trial, the trial on the other two charges would proceed without a jury. The circuit court further noted that, despite the fact that she had initialed and dated the blanks next to the box for a jury demand, Gonzalez had, in effect, waived her right to demand a jury trial in these cases.

Over Gonzalez's objection, the circuit court tried her without a jury, and she was convicted of the two remaining charges.

Discussion

Gonzalez argues on appeal that the circuit court committed reversible error by denying her a trial by jury on the charges of allowing animals to run at large and keeping a vicious animal. (Gonzalez's brief, p. 13.) Although she acknowledges that she neglected to check the jury-trial-demand boxes on the notice-of-appeal forms for these two charges, she points out that she initialed and dated the blanks under these boxes. (Gonzalez's brief, p. 16.) According to Gonzalez, by doing so, she was clearly indicating that she was demanding a jury trial for each charge. (Gonzalez's brief, p. 17.) We agree.

In Alabama, it is well settled that the "right of trial by jury is fundamental in our jurisprudence, guaranteed by the Constitution ... and, if this guaranty means anything at all, it is that the defendant is entitled to trial by a jury selected and impaneled as prescribed by the law of the land." Spooney v. State, 217 Ala. 219, 221, 115 So. 308, 310-311 (1928). Rule 18.1(a), Ala. R. Crim. P., governs the procedure for asserting a demand for a jury trial when appealing for a trial de novo in circuit court. This rule provides:

"Defendants in all criminal cases shall have the right to be tried by a jury. In cases triable in the first instance in district or municipal courts, the defendant shall have the right to trial by jury only on demand upon appeal to the circuit court for trial de novo as provided in Rule 30.1 [, Ala. R. Crim. P.]. Upon conviction in municipal or district court, the defendant shall be advised of the right to appeal for trial de novo and to demand a jury trial."

Rule 18.1(a), Ala. R. Crim. P. Additionally, Rule 18.1(b)(2), Ala. R. Crim. P., provides:

"When the defendant appeals for trial de novo in the circuit court, he or she must demand a jury trial in writing at the time of filing notice of appeal for trial de novo, or within (7) days thereafter. Failure of a defendant to make a timely demand for trial by jury shall be deemed to be a waiver by the defendant of his or her right to trial by jury."

Rule 18.1(b)(2), Ala. R. Crim. P.

Gonzalez argues that, despite failing to mark the required boxes on two of the three notice-of-appeal forms, it was clear that she made an "unequivocal demand in writing for a jury trial." (Gonzalez's brief, p. 17.) Relying on our decision in Witherspoon v. City of Mobile, 513 So.2d 62 (Ala. Crim. App. 1987), Gonzalez contends that, by initialing and dating under the words "Defendant Demands Trial by Jury" on all three notice-of-appeal forms, she made it clear that she intended to demand a jury trial for all three charges. We agree.

In Witherspoon v. City of Mobile, the defendant's notice of appeal to the circuit court contained a typewritten demand for a jury trial. 513 So.2d at 62. The city moved to strike the jury demand because it was not signed by defense counsel. Id. The circuit court granted this motion over the defendant's objection because the demand for a jury trial was not signed, referred to only one judgment, and was filed in only one of two cases. Id. at 62-63. We reversed the circuit court's judgment and held that the notice of appeal did in fact contain an unequivocal demand for a jury trial for both cases and that the demand need not have been signed in order to constitute a written demand. Id. at 62.

Additionally, in Coughlin v. City of Birmingham, 701 So.2d 830 (Ala. Crim. App. 1997), we addressed a similar issue. In that case, Coughlin appealed his municipal-court conviction and sought a trial de novo in the Jefferson Circuit Court. Id. at 831. Although the form he used for his notice of appeal did not have a designated place to indicate a demand for a trial by jury, Coughlin wrote the word "fury" next to his signature, intending to write the word "jury." Id. Over Coughlin's objection, the circuit court proceeded to hear his case without a jury, holding that Coughlin's notice of appeal "spoke for itself" and that the word "fury" did not constitute a proper demand for a jury trial. Id.

We reversed the circuit court's judgment and held that Coughlin made a timely and proper written demand for a jury trial. Id. Specifically, we held that, because the notice-of-appeal form provided to Coughlin by the municipal court did not contain a box or other designated place where he could indicate that he wanted a trial by jury, the only logical place for Coughlin to indicate a demand for trial by jury was where the handwritten word appeared. Id. This Court further stated that "[w]e can think of no [other] reason why someone would write the word 'fury' on his notice of appeal, and a person presented with Coughlin's notice of appeal would have to be almost willfully incurious not to attach the proper significance to the word written in the margin." Id. at 832. The same reasoning can be applied in the case now before us.

Here, Gonzalez placed the date and her initials under the boxes labeled "Defendant Demands Jury Trial," on all three notice-of-appeal forms for each of the charges against her as demonstrated below:

[] TRIAL WITHOUT JURY [] DEFENDANT DEMANDS TRIAL BY JURY LEA 8/25/2615 _______________________ ______ _______________________ _________ (Initials of Defendant) (Date) (Initials of Defendant) (Date) (Note: By checking either of the boxes above, the defendant acknowledges that he or she was advised of his or her right to a jury trial on appeal. Also, the defendant understands that if he or she does not check the `Defendant Demands Trial By Jury' box within seven (7) days of filing this Notice of Appeal, he or she waives his or her right to a trial by jury in circuit court.) /s/Laura Arteaqa _______________________ ____________________________________ Date Signature of Defendant/Attorney

(C. 41, 45.) The City points out, however, that the form expressly requires a defendant to check the jury-trial-demand box on each form to preserve his or her right to a trial by jury and that a failure to do so constitutes a waiver of that right. (City's brief, p. 8.) According to the City, because Gonzalez failed to check those boxes on the notice-of-appeal forms for her remaining two charges, she has waived her right to a trial by jury. Id. We disagree. Although Gonzalez marked this box on only one of the three notice-of-appeal forms, under these circumstances, her demand for a jury trial was sufficiently clear. Accordingly, the circuit court committed reversible error by denying Gonzalez's demand for a jury trial.

Conclusion

The judgment of the circuit court is reversed and the cause remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      Our resolution of this issue pretermits discussion of the remaining issue Gonzalez raises on appeal.


author: BURKE, Judge.

text:
    Michael Christopher MCCULLOUGH v. STATE of Alabama
    CR-16-0859
    Court of Criminal Appeals of Alabama.
    December 15, 2017
    Joshua Robert McKoon, Columbus, Georgia, for appellant.
    Steve Marshall, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   BURKE, Judge.

Michael Christopher McCullough appeals from the circuit court's order dismissing McCullough's de novo appeal from the district court based on his failure to appear at docket call, and remanding the case. McCullough was found guilty of third-degree domestic violence (menacing) in the district court, a violation of § 13A-6-132, Ala. Code 1975. He was sentenced to 90 days in the county jail; that sentence was suspended for 2 years. He was fined $250 plus court costs and ordered to pay a victim-compensation fee. He was also ordered to complete a domestic-violence program.

McCullough appealed his conviction to the circuit court, and his motion to set an appeal bond was granted on May 23, 2016. His appeal bond was set at $1,000 and he was given 14 days to pay the bond. McCullough's arraignment notice as to his charge of domestic violence issued on June 3, 2016, and ordered him to appear with his counsel on June 27, 2016. McCullough failed to appear at his arraignment, and the court dismissed the appeal. Defense counsel filed a motion to reinstate McCullough's appeal, arguing that neither he nor McCullough received notice of the scheduled arraignment. Defense counsel alleged that the district attorney's office did not oppose the motion to reinstate and that no party would be prejudiced by a reinstatement of the appeal. Further, defense counsel argued that a denial of the motion would constitute a violation of McCullough's right to a jury trial. The court granted the motion and continued the arraignment until September 27, 2016. On that date, McCullough entered a plea of not guilty and the court set a docket call for November 7, 2016.

Defense counsel subsequently filed a motion to continue, arguing that at the November docket call he had indicated that he would be ready for trial anytime other than on December 5 and 6, 2016, because he would be out of town on those dates. However, in his motion to continue, he asked for a further continuance due to his illness. The court granted the motion and set a docket call for January 27, 2017, and trial for February 27, 2017, and ordered McCullough to appear with his counsel on both occasions. On January 27, 2017, McCullough failed to appear, and the court, upon motion of the State, dismissed his appeal, remanded the case back to district court, and assessed court costs to McCullough.

McCullough filed a motion to reinstate his appeal on February 23, 2017, stating that he was unable to attend his docket call because of his work as a truck driver and that he had believed that he did not have to appear until trial. He argued that the court had authority under § 12-14-70(f), Ala. Code 1975, and Rule 30.5(b), Ala. R. Crim. P., only to dismiss the appeal if McCullough failed to appear for trial, and that the authority to dismiss did not extend to docket call.

The State filed a response the following day, arguing that the proper remedy for failing to appear for docket call would not be to dismiss the appeal; rather, the court should forfeit McCullough's appeal bond and issue a new writ for his arrest for failing to appear at docket call. The State cited § 12-22-112(a), Ala. Code 1975. No ruling on the State's response or McCullough's motion to reinstate appears in the record.

McCullough filed a notice of appeal to this Court on March 10, 2017, challenging the circuit court's dismissal of his appeal.

On appeal, McCullough argues that the circuit court did not have the authority to dismiss his de novo appeal from the district court based on his failure to appear at the docket call. Rule 30.5(b), Ala. R. Crim. P., states: "Where the appellant, without sufficient excuse, does not appear for trial de novo when called for trial, the court may dismiss the appeal, order the bond forfeited, and remand the case to the court appealed from for enforcement of the lower court's judgment." Section 12-14-70(f), Ala. Code 1975, states: "Upon failure of an appellant to appear in the circuit court when the case is called for trial, unless good cause for such default is shown, the court shall dismiss the appeal and upon the expiration of 30 days from such date, unless the dismissal is set aside, the circuit clerk shall return the file, with a copy of the order of dismissal, to the clerk of the court from which the appeal was taken and the judge of such court may enter judgment of default on the appeal bond by utilizing the procedures set forth in Section 15-13-81."

"The statute and rule governing an appeal from a municipal or district court for a trial de novo provide for dismissal of the appeal only upon the appellant's request or upon the appellant's failure to appear for trial.... We can find no authority permitting the dismissal of a de novo appeal on motion of the State other than for failure of the appellant to appear at trial." Hulsey v. State, 866 So.2d 1180, 1185-6 (Ala. Crim. App. 2003). See also Riddle v. State, 641 So.2d 1316, 1318 (Ala. Crim. App. 1994) ("We, therefore, hold that the circuit court's dismissal of the appeal when the appellant failed to appear at 'plea day' was premature. Compare Grizzard v. City of Huntsville, 641 So.2d 1273, 1273 (Ala. Crim. App. 1993) ('[t]he appeal was properly dismissed because the appellant failed to appear on the scheduled trial date'). Because it was unauthorized by either statute or rule, the circuit court's dismissal of the appeal is due to be reversed.").

On appeal, the State concedes the circuit court's error in dismissing the de novo appeal from the district court and submits that § 12-22-112(a), Ala. Code 1975, provides the proper remedy. Section 12-22-112(a) states that, "[i]f the defendant fails to appear at the circuit court as required by the appeal bond, he shall be liable to the same penalties, forfeitures and proceedings as on a forfeited bail bond taken in the court, and a new warrant of arrest may issue from that court without any other authority therefor."

Because the circuit court lacked authority to dismiss McCullough's appeal from the district court, the judgment is reversed and the case remanded for the circuit court to set aside its order and to reinstate McCullough's de novo appeal.

REVERSED AND REMANDED.

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


text:
    William H. BELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2251
    District Court of Appeal of Florida, First District.
    August 24, 2018 Rehearing Denied October 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Sylvester SHULER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1752
    District Court of Appeal of Florida, First District.
    August 22, 2018 Rehearing Denied October 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jerome Antonio HILL, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1486
    District Court of Appeal of Florida, First District.
    August 8, 2018 Rehearing Denied October 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jamie Pearl JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-869
    District Court of Appeal of Florida, First District.
    August 7, 2018 Rehearing Denied October 25, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    B.C., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-804
    District Court of Appeal of Florida, First District.
    October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    David Michael FUNKEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-614
    District Court of Appeal of Florida, First District.
    October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    A.K., Mother of R.K., Minor Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D18-2307
    District Court of Appeal of Florida, First District.
    October 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Ryan WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1097
    District Court of Appeal of Florida, First District.
    September 18, 2018 Rehearing Denied November 8, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Bridget ROUSSEAU, Appellant, v. RANDSTAD and ESIS/ACE USA, Appellees.
    No. 1D18-1659
    District Court of Appeal of Florida, First District.
    October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Charles MCPHERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-586
    District Court of Appeal of Florida, First District.
    October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jack DZIEDZIC and Elizabeth Dziedzic, Appellants, v. US BANK NATIONAL ASSOCIATION as Trustee Successor in Interest to Bank of America National Association as Trustee Successor by merger to Lasalle Bank National Association as Trustee for Washington Mutual Mortgage Pass Through Certificates Wmalt series 2006 AR8 Trust, Appellee.
    No. 1D18-484
    District Court of Appeal of Florida, First District.
    October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Sarah HAYNES, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D17-5402 1D17-5403
    District Court of Appeal of Florida, First District.
    October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Craig PERKINS, Appellant, v. KNOLOGY OF FLORIDA, INC., Appellee.
    No. 1D17-4703
    District Court of Appeal of Florida, First District.
    October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Trifornia RUDOLPH, Appellant, v. AMI KIDS INC., Appellee.
    No. 1D18-1702
    District Court of Appeal of Florida, First District.
    October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Bergomy PIERRE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-934
    District Court of Appeal of Florida, First District.
    October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jason R. WEST, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1506
    District Court of Appeal of Florida, First District.
    October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Otis Lamar BROWN, II, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4301
    District Court of Appeal of Florida, First District.
    October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Eddie Jermain WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3663
    District Court of Appeal of Florida, First District.
    October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tonny GIVINS, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Sunshine Recycling, Inc., Appellees.
    No. 1D17-881
    District Court of Appeal of Florida, First District.
    October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Mary Elizabeth EHLEN, R.N., Petitioner, v. State of Florida, DEPARTMENT OF HEALTH, Respondent.
    No. 1D18-1448
    District Court of Appeal of Florida, First District.
    October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   DENIED.


text:
    Darius AUSTIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1206
    District Court of Appeal of Florida, First District.
    October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Gwendolyn MERCER, Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    No. 1D17-3045
    District Court of Appeal of Florida, First District.
    October 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    IRVIN B. GREEN & ASSOCIATES, INC., a Florida corporation, Appellant/Cross-Appellee, v. AGIC, INC., a Florida corporation, Appellee/Cross-Appellant.
    Case No. 2D17-4492
    District Court of Appeal of Florida, Second District.
    Opinion filed June 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tomas S. BURGESS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-403
    District Court of Appeal of Florida, Second District.
    Opinion filed June 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    William Jason TEETS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-141
    District Court of Appeal of Florida, Second District.
    Opinion filed June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Rafael CINTRON-MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1569
    District Court of Appeal of Florida, Second District.
    Opinion filed June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Morgan Jane SMITH, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1868
    District Court of Appeal of Florida, Second District.
    Opinion filed June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael John VERRA, Jr., DOC #554122, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1882
    District Court of Appeal of Florida, Second District.
    Opinion filed June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jack CORDEIRO and Alda Cordeiro; Appellants, v. The BANK OF NEW YORK MELLON f/k/a The Bank of New York as trustee FOR the CERTIFICATE HOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2005-27 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-27; SunTrust Bank; Belle Harbor Owner's Association, Inc. ; Tenant #1 n/k/a Cheryl White, Appellees.
    Case No. 2D17-2256
    District Court of Appeal of Florida, Second District.
    Opinion filed June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Claude T. BOWEN, Appellant, v. TOUCH BLUE SR54 OAKGROVE, LLC; Carl R. Meyers, Jr.; Jessica Breummer-Madych-Meyers; Little Italy's Meatballs, LLC ; Little Italy's Family Restaurant and Catering, LLC; and Chicago's Little Italy, LLC, Appellees.
    Case No. 2D17-2517
    District Court of Appeal of Florida, Second District.
    Opinion filed June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    STATE of Florida, Appellant, v. Clarence LEONARD, Appellee.
    Case No. 2D17-3363
    District Court of Appeal of Florida, Second District.
    Opinion filed June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Robert PATTERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4286
    District Court of Appeal of Florida, Second District.
    Opinion filed June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lewis D. HANCHELL, Appellant, v. TRUST MORTGAGE, LLC, Appellee.
    Case No. 2D17-4831
    District Court of Appeal of Florida, Second District.
    Opinion filed June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Darian M. WRIGHT, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4939
    District Court of Appeal of Florida, Second District.
    Opinion filed June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Brandon Rashad DAVIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-906
    District Court of Appeal of Florida, Second District.
    Opinion filed June 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Hugh Oscar KUNSELMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-691
    District Court of Appeal of Florida, Second District.
    Opinion filed June 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Mark MARZUCCO, Appellant/Cross-Appellee, v. Carol MACONI, Appellee/Cross-Appellant,
    Case No. 2D17-3845
    District Court of Appeal of Florida, Second District.
    Opinion filed June 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Louis D. LAROCCA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5524
    District Court of Appeal of Florida, Second District.
    Opinion filed June 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ayanna Michelle PALACIO, DOC# T35458, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1575
    District Court of Appeal of Florida, Second District.
    Opinion filed June 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Alfredo P. SCALZO and Michelle A. Scalzo, Appellants, v. THIRD FEDERAL SAVINGS AND LOAN ASSOCIATION OF CLEVELAND ; Lansbrook Master Association, Inc.; and Juniper Bay Homeowners Association, Inc., Appellees.
    Case No. 2D17-1539
    District Court of Appeal of Florida, Second District.
    Opinion filed June 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Christopher BROWN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2764
    District Court of Appeal of Florida, Second District.
    Opinion filed June 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lowell DAVIS and Avis Davis, Appellants, v. CENTERSTATE BANK OF FLORIDA, Appellee.
    Case No. 2D17-1927
    District Court of Appeal of Florida, Second District.
    Opinion filed June 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Samuel K. HOGAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5385
    District Court of Appeal of Florida, Second District.
    Opinion filed June 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jose Cirilo Izaquirre PEREZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1319
    District Court of Appeal of Florida, Second District.
    Opinion filed June 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Joseph and Rhonda TIPTON, Appellants, v. OLD DOMINION INSURANCE COMPANY, Appellee.
    Case No. 2D17-2276
    District Court of Appeal of Florida, Second District.
    Opinion filed June 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Alfredo SALAZAR, Jr., Doc# 508788, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2476
    District Court of Appeal of Florida, Second District.
    Opinion filed June 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael HANSEN, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    Case No. 2D17-1252
    District Court of Appeal of Florida, Second District.
    Opinion filed June 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jessica Rose THOMAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-537
    District Court of Appeal of Florida, Second District.
    Opinion filed June 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Angela Marie WYNN, Appellant, v. William W. PICKAVANCE, III, Appellee.
    Case No. 2D17-809
    District Court of Appeal of Florida, Second District.
    Opinion filed June 29, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tony Laroy JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5312
    District Court of Appeal of Florida, Second District.
    Opinion filed June 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Joshua W. COLLINS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4111
    District Court of Appeal of Florida, Second District.
    Opinion filed June 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Eddy MIDYETT, Appellant, v. MANGROVES BAR AND GRILL, INC., Appellee.
    Case No. 2D16-5241
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Pedro Randell SHIRD, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1784
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    STATE of Florida, Appellant, v. Bobby John RYAN, Appellee.
    Case No. 2D17-3402
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Troy Craig DRISKELL, Doc #X04320, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4637
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Cassius Eugene PICKETT, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1010
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Amber HERRMANN, DOC #Y47107, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1719
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Brian Keith SAMUEL, DOC #H38159, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4424
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Heather L. SHIELDS, Appellant, v. OCWEN LOAN SERVICING, L.L.C., Appellee.
    Case No. 2D17-2976
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Denise BATTLES, DOC #R62614, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3929
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Clyde M. SWANSON, Appellant, v. FIRST BANK, a Missouri state chartered trust company as successor by merger to Coast Bank of Florida, Appellee.
    Case No. 2D17-4723
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James OLMSTEAD, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4342
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Braxton Marvin Bentley PIERSON, DOC# C05942, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-5168
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Bruce A. FORNEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-120
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James BAKER, Doc #093894, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4988
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Douglas L. JAMES, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-266
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Timothy BEY, a/k/a Timothy Dortch, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-275
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Warren PINK, DOC #T44131, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-28
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Darnell KENO, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-445
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ethan PETERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-49
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Steven T. HUMPHREY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-495
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Scott Ernest ZEIDES, DOC #Y59482, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2188
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Donna WARD, an individual, and Glenn Johnson, an individual, Appellants, v. LEE COUNTY BOARD OF COUNTY COMMISSIONERS, a political subdivision of the State of Florida, Appellee.
    Case No. 2D17-2835
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ira PARKER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-412
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    DEUTSCHE RESIDENTIAL MORTGAGE, CO., Appellant, v. ORLANDO REALTY GROUP, LLC; Wilmington Savings Fund Society, FSB, as Trustee of Stanwich Mortgage Loan Trust B ; David G. Kapes; Unknown Spouse; The Ram-Sea II Condominium Association, Inc.; Parkes Investments, LLC; and Outbidya, Inc., Appellees.
    Case No. 2D17-4136
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Charles Alvaris DAWSON, DOC #L13487 Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-79
    District Court of Appeal of Florida, Second District.
    Opinion filed August 8, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Danny LAROCCO, DOC #T85761, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4945
    District Court of Appeal of Florida, Second District.
    Opinion filed July 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Edward WEBB, DOC #109823, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4567
    District Court of Appeal of Florida, Second District.
    Opinion filed July 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Gopal CHALAVARYA, Appellant, v. Sadhna CHALAVARYA, Appellee.
    Case No. 2D17-3731
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    William BEUCHER, DOC #T074417, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4041
    District Court of Appeal of Florida, Second District.
    Opinion filed September 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jason CHARLES, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-834
    District Court of Appeal of Florida, Second District.
    Opinion filed August 22, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Leon BROWN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4428
    District Court of Appeal of Florida, Second District.
    Opinion filed August 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Daniel STRADER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-5169
    District Court of Appeal of Florida, Second District.
    Opinion filed August 22, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jonathan MONSANTO-BERRIO, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-436
    District Court of Appeal of Florida, Second District.
    Opinion filed October 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Santos HERNANDEZ a/k/a Santos Hernandez, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-1559
    District Court of Appeal of Florida, Second District.
    Opinion filed October 10, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ernest Lee KRAUSE, DOC# 738983, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1315
    District Court of Appeal of Florida, Second District.
    Opinion filed October 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    IN the INTEREST OF M.T. and H.T., children,
    C.L., Appellant, v. Department of Children and Families and Guardian ad Litem Program, Appellees.
    Case No. 2D18-1129
    District Court of Appeal of Florida, Second District.
    Opinion filed September 21, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ricardo CARMENATE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1024
    District Court of Appeal of Florida, Second District.
    Opinion filed October 12, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Russell HARABURDA, DOC #S39871, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1292
    District Court of Appeal of Florida, Second District.
    Opinion filed October 12, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ryan Wesley REESE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1202
    District Court of Appeal of Florida, Second District.
    Opinion filed October 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kenneth J. STEVENSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4998
    District Court of Appeal of Florida, Second District.
    Opinion filed October 10, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    John Kelly DESTRAT, DOC #Y62415, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3049
    District Court of Appeal of Florida, Second District.
    Opinion filed October 12, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    John Russell ROBINSON, Jr., DOC# 250548, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3950
    District Court of Appeal of Florida, Second District.
    Opinion filed October 12, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Thomas Christopher ELDER, DOC #H45753, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4357
    District Court of Appeal of Florida, Second District.
    Opinion filed October 12, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    BRELVIS CONSULTING, LLC, d/b/a, the Student Loan Help Center, Petitioner, v. OFFICE OF the ATTORNEY GENERAL State of Florida, DEPARTMENT OF LEGAL AFFAIRS, Respondent.
    Case No. 2D17-4850
    District Court of Appeal of Florida, Second District.
    Opinion filed October 12, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Kimberley Jo KONASH, Petitioner, v. Scott Allan KONASH, Respondent.
    Case No. 2D18-2355
    District Court of Appeal of Florida, Second District.
    Opinion filed October 12, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Aenri J. ELLIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2036
    District Court of Appeal of Florida, Second District.
    Opinion filed October 12, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Sherman Lee MYERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2838
    District Court of Appeal of Florida, Second District.
    Opinion filed October 12, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Curtis HOOSIER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1634
    District Court of Appeal of Florida, Second District.
    Opinion filed October 12, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Paul Jerome OWENS, DOC #820823, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2862
    District Court of Appeal of Florida, Second District.
    Opinion filed October 12, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Andrew Ross SWEITZER, DOC #R52921, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4701
    District Court of Appeal of Florida, Second District.
    Opinion filed October 12, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Christina PAYLAN, M.D., Petitioner, v. Carole MORALES and Louis Morales, Respondents.
    Case No. 2D18-1525
    District Court of Appeal of Florida, Second District.
    Opinion filed October 12, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Larael OWENS, Appellant/Petitioner(s), v. Tamesha SADDLERS, Appellee/Respondent(s).
    CASE NO.: 2D18-2724
    District Court of Appeal of Florida, Second District.
    July 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Mackel D. WALKER, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3929
    District Court of Appeal of Florida, Second District.
    October 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Certiorari is denied.


text:
    Richard M. BOOMER, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3409
    District Court of Appeal of Florida, Second District.
    October 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    Alberto R. DIEZ, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3281
    District Court of Appeal of Florida, Second District.
    October 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    Deyon Niles EVERETT, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-2730
    District Court of Appeal of Florida, Second District.
    October 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    Mark HOLLOBAUGH, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3648
    District Court of Appeal of Florida, Second District.
    October 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Willie Lee MCGEE, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3203
    District Court of Appeal of Florida, Second District.
    October 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Edwin MARTINEZ-PEREZ, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-1563
    District Court of Appeal of Florida, Second District.
    October 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Appeal is dismissed.


text:
    Gary Lee NORMAN, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-2713
    District Court of Appeal of Florida, Second District.
    October 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    Nathan JOHNSON, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3433
    District Court of Appeal of Florida, Second District.
    October 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Appeal is dismissed.


text:
    Gerald T. WALDEN, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3014
    District Court of Appeal of Florida, Second District.
    October 11, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Certiorari is denied.