author: PITTMAN, Judge.

text:
    James H. LUKER v. Terry CARRELL and David Carrell.
    2040318.
    Court of Civil Appeals of Alabama.
    March 31, 2006.
    Rehearing Denied Sept. 1, 2006.

      William Kent Upshaw of Comer & Up-shaw, LLP, Birmingham, for appellant.
    Don L. Hall of Hall & Tucker, LLC, Bessemer, for appellees.
   PITTMAN, Judge.

On April 17, 2003, Terry Carrell filed a civil action against James H. Luker, Paul Todd, and Equipartners Financial Co., Inc., alleging three claims arising from a transaction involving a lease of real property and an option to purchase that property: constructive eviction (count 1), fraud (count 2), and conversion (count 3). The trial court later directed that David Carrell be joined as a plaintiff, and the cause was set for trial on August 16, 2004. At trial, Equipartners was dismissed as a defendant and Todd failed to appear; testimony was then received from Luker and from Terry Carrell. After the plaintiffs rested, Luker moved for the entry of a judgment on partial findings (see Rule 52(c), Ala. R. Civ. P.) as to all counts of the complaint. The trial court orally indicated that the motion would be denied except as to count 3, and Luker rested after that ruling was made.

The record reveals the following entry on the case action summary sheet:

“8/16/04 Motion to dismiss Equipart-ners Financial Inc. is granted on motion of Plaintiffis].
“Motion for default against Paul Todd Defendant is granted for [$]10,000.00 compensatory damages. Case is called to trial with Plaintiff[s] present with their attorney ... and Defendant James H. Luker present with his attorney.... “Plaintiffis] rest[ ]. Motion for judgment as a matter of law [sic ] is made by Defendant and is granted as to conversion count.
“Trial brief filed in open court. Defendant rest[s].
“The Court finds that the Plaintiffis] [are] entitled to recovery in the amount of [$]10,000.00 compensatory damages plus costs of court. This is found on Counts 1 and 2.”

That entry bears the signature of the trial judge. A subsequent entry on the case action summary sheet, dated October 12, 2004, bears the notation: “Copies to attorneys & to deft Paul Todd.”

On October 15, 2004, Todd filed what he termed an “objection” to the judgment entered by the trial court in which he asked the trial court to review its previous judgment. After that filing, the trial court apparently re-examined the case action summary sheet, including the entity referring to the trial court clerk’s issuance of copies of the judgment almost two months after the entry of that judgment. The trial court, on November 2, 2004, executed a document that was entitled “Correction of Clerical Mistake in Entry of Judgment” in which that court opined that it was “unclear as to when the Court actually entered the judgment in this cause”; invoking Rule 60(a), Ala. R. Civ. P., the trial court purported to ma sponte “correct” the judgment so as to bear the date of October 12, 2004. The trial court simultaneously entered the following notation on the case action summary sheet explaining its actions:

“The order by separate paper is entered due to this Court writing orders on the case action summary sheet sometimes in large volumes which causes the orders not to be faxed out or mailed or clocked in by the Circuit Clerk’s office on a timely basis. This is only through the fault of lack of manpower. The original order was written by the Court on 8/16/04 but mailed to attorneys on 10/12/04. Therefore the Court enters this order by separate paper.”

On November 10, 2004, Luker filed a motion “to alter, amend or vacate [the trial court’s] judgment” or, in the alternative, for a new trial. Although that motion cited both Rule 59 and Rule 60(b), Ala. R. Civ. P., the body of the motion simply narrated facts and averred that the judgment was “contrary to the evidence and the law” and that the amount of damages was not supported by the evidence; thus, the motion did not allege or demonstrate one of the grounds set forth in Rule 60(b) for granting relief from the judgment such that that motion might properly be construed as a motion filed pursuant to that rule (see Low v. State ex rel. Waltman, 602 So.2d 435, 438 (Ala.Civ.App.1992)). The trial court entered orders purporting to deny Luker’s motion and Todd’s “objection” on December 1 and December 2, 2004, respectively. Both Todd and Luker filed notices of appeal from the trial court’s judgment, and their appeals were originally consolidated by this court; however, Todd’s appeal was dismissed after Todd and the Carrells engaged in a successful appellate mediation proceeding.

Although neither party has questioned this court’s appellate jurisdiction, a lack of appellate jurisdiction resulting from a party’s failure to timely file a notice of appeal “cannot be waived”; indeed, “this court can raise the issue ex mero motu.” E.g., Carter v. Hilliard, 838 So.2d 1062, 1063 (Ala.Civ.App.2002), and Moragne v. Moragne, 888 So.2d 1280, 1283 (Ala.Civ.App.2004); see also Rule 2(a)(1), Ala. R.App. P. (stating that an appeal shall be dismissed if the notice of appeal is not timely filed to invoke the jurisdiction of the appellate court). After reviewing the record and the applicable legal authorities, we must conclude that Luker’s notice of appeal, filed on January 7, 2005, was not timely filed so as to properly invoke this court’s jurisdiction.

As an initial matter, we note that the trial court clearly did “enter” a judgment in favor of the Carrells as to counts 1 and 2 of their complaint on August 16, 2004, by stating the substance of the judgment in an entry made directly on the case action summary sheet and by signing that entry. See Smith v. Jackson, 770 So.2d 1068, 1071-72 (Ala.2000) (“[U]nder Rule 58(c), rendition and entry of judgment occur simultaneously when the trial judge notes the judgment on the case action summary sheet or on separately maintained bench notes.”). The trial court’s subsequent entry on the case action summary sheet, while indicating that the sending of notice of the judgment was delayed, confirms that the judgment appearing on the case action summary sheet was indeed “written by the Court on 8/16/04.” As we noted in Rollins v. Rollins, 903 So.2d 828, 833 (Ala.Civ.App.2004), “[w]hen a trial judge both places and signs a written order or judgment directly upon the civil docket, he simultaneously demonstrates his intent both to render that order or judgment and have it become final and effective.... It is in this circumstance that Rule 58(c) obliterates the distinction between the rendering and the entry of a judgment.”

Although Rule 77(d), Ala. R. Civ. P., states that trial court clerks are to serve a notice of the entry of an order or a judgment “[ijmmediately upon [its] entry,” that rule also states:

“Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time alloived, except that upon a showing of excusable neglect based on a failure of the party to learn of the entry of the judgment or order the circuit court in any action may extend the time for appeal not exceeding thirty (30) days from the expiration of the original time now provided for appeals in civil actions.”

Rule 77(d), Ala. R. Civ. P. (emphasis added). Thus, the failure of the clerk’s office to fulfill the duty of mailing notices in no way affects the time to appeal unless a party (1) can show excusable neglect and (2) moves for relief within 30 days after the original deadline for filing a notice of appeal. Altmayer v. Stremmel, 891 So.2d 305, 308 (Ala.2004); see also Miller v. Amerada Hess Corp., 786 So.2d 1106, 1110 (Ala.2000) (indicating that “‘simple reliance on the notification process of the clerk’s office’ ” does not amount to “excusable neglect” so as to warrant the granting of a motion under Rule 77(d) seeking an extension of time to file a notice of appeal).

In this case, even were we to assume that Luker would have been able to demonstrate “excusable neglect,” he filed no motion pursuant to Rule 77(d) seeking to extend the time for filing a notice of appeal beyond September 27, 2004, the 42d day after the entry of the trial court’s judgment. Indeed, by the time Luker filed anything in response to the judgment (i.e., his November 10, 2004, motion to alter, amend, or vacate or for a new trial), more than 30 days had elapsed from the last day to appeal from the trial court’s judgment, and his motion would thus not have timely invoked the trial court’s jurisdiction to extend the time for filing a notice of appeal even had he sought relief under Rule 77(d) as a component of that motion.

Neither can Luker’s appeal gain vitality by reference to the trial court’s case action summary sheet notation of November 2, 2004, or that court’s execution of a “separate paper” on that date purporting to grant relief under Rule 60(a), Ala. R. Civ. P. First, it is well settled that Rule 60(a) may not be used as a substitute for a timely appeal and that a trial court may not “circumvent the Rules of Procedure in an attempt to artificially renew the period in which a party may appeal.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cobb, 717 So.2d 355, 356 (Ala.1998). More importantly, however, the substantive effect of a Rule 60(a) order “is a correction of the original judgment to reflect the original intention of the trial court”; thus, “[t]he amendment relates back to the original judgment and becomes a part of it.” Bergen-Patterson, Inc. v. Naylor, 701 So.2d 826, 829 (Ala.Civ.App.1997); see also Levine v. Malaga Rest., Inc., 501 So.2d 1231, 1234 (Ala.Civ.App.1987) (order in the nature of a clerical correction to a judgment under Rule 60(a) held not to toll the time for taking an appeal from the judgment). Thus, that the trial court purported to invoke Rule 60(a) as authority for stating that its judgment should be deemed to have been entered on October 12, 2004, does not render Luker’s appeal timely.

In this case, the trial court rendered and simultaneously entered a judgment on August 16, 2004. Unfortunately, the trial court clerk did not notify the parties of the entry of that judgment in the manner envisioned in Rule 77(d), Ala. R. Civ. P., and Luker did not file a notice of appeal from that judgment within 42 days after its entry so as to properly invoke this court’s appellate jurisdiction under Rule 4(a), Ala. R.App. P.; therefore, the appeal must be dismissed. Although the conclusion we reach might appear harsh, and although the adoption of amendments to Rule 58 with respect to the direct entry of judgments on case action summary sheets might be just and appropriate so as to prevent similar dismissals in the future (see Allstate Ins. Co. v. Coastal Yacht Servs., 823 So.2d 632, 635-36 (Ala.2001) (Johnstone, J., concurring specially)), this court is without the power to amend the Rules of Civil Procedure so as to resurrect Luker’s untimely appeal or to otherwise excuse the untimeliness of his notice of appeal.

APPEAL DISMISSED.

CRAWLEY, P.J., and THOMPSON, MURDOCK, and BRYAN, JJ., concur.

      . We note that November 2, 2004, is more than 30 days after the original appeal deadline and that, therefore, the trial court's action could not in any event properly be categorized as being in the nature of relief under Rule 77(d), Ala. R. Civ. P. See Altmayer v. Stremmel, 891 So.2d at 308.


source: Caselaw Access Project

author: SEE, Justice.

license: Public Domain

text:
    Ex parte James H. LUKER. (In re James H. Luker v. Terry Carrell and David Carrell).
    1051805.
    Supreme Court of Alabama.
    Aug. 31, 2007.

      William Kent Upshaw of Comer & Up-shaw, LLP, Birmingham, for petitioner.
   SEE, Justice.

James H. Luker petitioned this Court for certiorari review of a decision of the Court of Civil Appeals, arguing that an amendment to Rule 58(c), Ala. R. Civ. P., which became effective while his petition was pending, should apply to revive his appeal, which the Court of Civil Appeals dismissed as untimely. Luker v. Carrell, 25 So.3d 1148 (Ala.Civ.App.2006). We agree and we therefore reverse the Court of Civil Appeals’ judgment and remand this case.

Facts and Procedural History

Terry Carrell sued Luker and others in the Jefferson Circuit Court, alleging constructive eviction, fraud, and conversion related to the lease of real property. David Carrell was later joined as a plaintiff, and a nonjury trial took place on August 16, 2004. After the Carrells rested their case-in-chief, Luker moved for the entry of a judgment on partial findings. The trial court orally stated that it would deny the motion except as it related to the conversion claim and that it would “try and get an order out that day.” The trial judge did enter a handwritten order on the case-action-summary sheet, which included a judgment on the fraud and constructive-eviction claims against Luker for “[$]10,-000.00 compensatory damages plus costs of court.” The trial judge signed that entry on the case-action-summary sheet.

The trial court did not mail copies of the judgment to the parties’ attorneys until October 12, 2004. On November 2, 2004, the trial court executed a document entitled “Correction of Clerical Mistake in Entry of Judgment,” which stated that it was unclear when the trial court had entered its judgment in the case. Citing Rule 60(a) (“Clerical Mistakes”), Ala. R. Civ. P., the trial court corrected the judgment to show October 12, 2004, as the date of the entry of the judgment. The trial court further noted on the case-action-summary sheet that the failure to mail the original judgment in a timely manner occurred “only through the fault of lack of manpower.”

On November 10, 2004, Luker filed a motion to alter, amend, or vacate the trial court’s judgment, citing both Rule 59 and Rule 60(b), Ala. R. Civ. P., arguing that the trial court’s judgment against him was contrary to the evidence and the law and that the evidence did not support the amount of damages awarded. The trial court denied Luker’s motion on December 1, 2004, and Luker filed a notice of appeal on January 7, 2005.

On appeal, the Court of Civil Appeals concluded that Luker’s notice of appeal was not timely because the judgment was entered on August 16, 2004, and because the clerk’s failure to notify the parties of the entry did not “ ‘affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except ... upon a showing of excusable neglect.’ ” Luker, 25 So.3d at 1151 (quoting Rule 77(d), Ala. R. Civ. P.). The Court of Civil Appeals held that Luker had failed to demonstrate excusable neglect and that the trial court could not use Rule 60(a), Ala. R. Civ. P., to “ ‘artificially renew the period in which a party may appeal.’ ” Luker, 25 So.3d at 1152 (quoting Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cobb, 717 So.2d 355, 356 (Ala.1998)). Therefore, the Court of Civil Appeals concluded that the trial court’s document purporting to change the entry date of the original judgment could not make Luker’s untimely notice of appeal timely. The Court of Civil Appeals then dismissed the appeal under Rule 2(a)(1), Ala. RApp. P. (“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.”). The Court of Civil Appeals noted that “the conclusion [it] reach[ed] might appear harsh” and that “the adoption of amendments to Rule 58 with respect to the direct entry of judgments on case action summary sheets might be just and appropriate so as to prevent similar dismissals in the future.” Luker, 25 So.3d at 1152 (citing Allstate Ins. Co. v. Coastal Yacht Servs., Inc., 823 So.2d 632, 636 (Ala.2001) (Johnstone, J., concurring specially)).

Luker petitioned this Court for the writ of certiorari. On September 19, 2006, while that petition was pending, we entered an order amending Rule 58, Ala. R. Civ. P. The amended language of Rule 58(c) provides that an order or judgment is deemed “entered” on the date on which the clerk enters the order or judgment into the State Judicial Information System. We granted certiorari review in this case to address whether the amended language of Rule 58(c) should apply to this case, in which the petition for the writ of certiorari was pending at the time the amended rule became effective.

Analysis

When the Alabama Rules of Civil Procedure were adopted, this Court expressly provided:

“[These rules] govern all proceedings in actions brought after they take effect [July 1973] and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible or would work injustice, in which event the former procedure applies.”

Rule 86, Ala. R. Civ. P. However, the question whether an amendment to a Rule of Civil Procedure applies to proceedings pending when the amendment is adopted is a question of first impression for this Court.

Luker argues that retroactive application of the rules of procedure is consistent with our treatment of remedial statutes, which do not create new substantive rights or affect a party’s vested rights. He cites Ex parte Bonner, 676 So.2d 925, 926-27 (Ala.1995), in which we stated:

“[T]his Court has often noted that ‘retrospective application of a statute is generally not favored, absent an express statutory provision or clear legislative intent that the enactment apply retroactively as well as prospectively.’ This general rule is, however, subject to an equally well-established exception, namely, that ‘[r]emedia.l statutes ... are not within the legal [concept] of “retrospective laws,” ... and do operate retroactively, in the absence of language clearly showing a contrary intention.’ In other words, ‘[r]emedial statutes— those which do not create, enlarge, diminish, or destroy vested rights — are favored by the courts, and their retrospective operation is not obnoxious to the spirit and policy of the law.’ Remedial statutes are exemplified by those that ‘ “impair no contract or vested right, ... but preserve and enforce the right and heal defects in existing laws prescribing remedies.” ’ Such a statute ‘may be applied on appeal, even if the effective date of that statute occurred while the appeal was pending, and even if the effective date of the statute was after the judgment in the trial court’

(Citations omitted.) Luker argues, and we agree, that the amendment to Rule 58(c) is both procedural and remedial in nature and that the amendment affects no substantive rights. Moreover, nothing in the amendment to Rule 58(c) or in the Committee Comments to Amendment to Rule 58 Effective September 19, 2006, adopted in conjunction with that amendment, indicates that the Court intended the amended rule to apply only prospectively. It is appropriate for the amendment to Rule 58(c) to apply retrospectively to a case in which a petition was pending on the effective date of the amendment, just as would be the case with a remedial statute.

Even more significantly, applying the amended language of Rule 58(c) to this case is consistent with the policies that underlie the Alabama Rules of Civil Procedure and with the purpose for the amendment of Rule 58(c) itself. Rule 1(c), Ala. R. Civ. P., states that the Rules of Civil Procedure “shall be construed and administered to secure the just, speedy and inexpensive determination of every action.” Consistent with the objective of the just determination of every case, Justice John-stone, in his special concurrence in Allstate, recommended “ ‘that the Committee on the Rules of Civil Procedure appointed by this Court study Rule 58(c), Ala. R. Civ. P., and initiate revisions that will eliminate the potential for injustice present in the current text of the rule as interpreted by the Court in this case.’ ” 823 So.2d at 636 (Johnstone, J., concurring specially (quoting Harris v. MedStar Inc., 790 So.2d 256, 256-57 (Ala.2001) (Johnstone, J., concurring specially))). The amendment to Rule 58(c) was “the result of that study” and was designed to provide for “an unambiguous, universally available judgment entry date.” Committee Comments to Amendment to Rule 58 Effective September 19, 2006. The Committee on the Rules of Civil Procedure further stated:

“Upon occasion, the loose-leaf ‘docket sheets’ or ‘case action summary sheets’ have been misplaced after a judgment has been entered, or the circuit clerk failed to mail notice of the entry of judgment, such that the time for filing a notice of appeal began to run without the losing party’s having effective notice of the entry of judgment or the deadline for filing a notice of appeal.”

Committee Comments to Amendment to Rule 58 Effective September 19, 2006. The circumstances surrounding Luker’s appeal exemplify just such a situation as described in the Committee Comments. The trial court rendered its judgment on August 16, 2004, and under the provisions of former Rule 58, Ala. R. Civ. P., the judgment was entered on that date. However, notice of • the judgment was not mailed to the parties until October 12, 2004, nearly two months after the time for filing a notice of appeal had begun to run.

Because this is the exact situation the September 19, 2006, amendment to Rule 58(c), Ala. R. Civ. P., was designed to prevent, and because retroactive application of the amendment to the Rules of Civil Procedure to cases pending at the time the amendment became effective is consistent with our prior treatment of procedural and remedial rules and statutes, we hold that Rule 58(c), as amended, should apply to Luker’s case. Amended Rule 58(c) provides that “[a]n order or a judgment shall be deemed ‘entered’ within the meaning of these Rules and the Rules of Appellate Procedure as of the actual date of the input of the order or judgment into the State Judicial Information System.” The State Judicial Information System records indicate that the judgment against Luker was entered on October 12, 2004. Luker timely filed his motion to alter, amend, or vacate the judgment within 30 days of the entry of that judgment, and he timely filed his notice of appeal after the trial court denied that motion. We therefore reverse the judgment of the Court of Civil Appeals and remand the case for proceedings consistent with this opinion.

Conclusion

We hold that the amended language of Rule 58(c), Ala. R. Civ. P., which became effective while Luker’s petition to this Court for the writ of certiorari was pending, should apply to this case. Under the amended rule, Luker timely appealed the trial court’s denial of his Rule 59, Ala. R. Civ. P., motion to alter, amend, or vacate the judgment. Therefore, we reverse the Court of Civil Appeals’ judgment and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, and BOLIN, JJ., concur.

PARKER, J., concurs in the result.

MURDOCK, J., recuses himself.

      . Rule 58, Ala. R. Civ. P., as amended, reads as follows:
      “(a) Rendition of Orders and Judgments. A judge may render an order or a judgment: (1) by executing a separate written document, (2) by including the order or judgment in a judicial opinion, (3) by endorsing upon a motion the words 'granted,' ‘denied,’ 'moot,' or words of similar import, and dating and signing or initialing it, or (4) by making or causing to be made a notation in the court records.
      "(b) Sufficiency of Order or Judgment. An order or a judgment need not be phrased in formal language nor bear particular words of adjudication. A written order or a judgment will be sufficient if it is signed or initialed by the judge, or by the clerk in the case of a judgment entered pursuant to Rule 55(b)(1), and indicates an intention to adjudicate, considering the whole record, and if it indicates the substance of the adjudication.
      "(c) Entry of Order or Judgment. Upon rendition of an order or a judgment as provided in subdivision (a) of this rule, the clerk shall forthwith enter such order or judgment in the court record. An order or a judgment shall be deemed 'entered' within the meaning of these Rules and the Rules of Appellate Procedure as of the actual date of the input of the order or judgment into the State Judicial Information System. The entry of the judgment or order shall not be delayed for the taxing of costs. Interest upon a judgment runs from the date the court rendered the judgment.
      "(dc) District Court Rule. Rule 58 applies in the district courts.”

      . We recognize that the Court of Civil Appeals previously implicitly decided this question differently in Williams v. Fox Television Stations of Birmingham, Inc., 959 So.2d 1120 (Ala.Civ.App.2006). In its opinion on application for a rehearing, that court acknowledged that Rule 58(c), Ala. R. Civ. P., was "amended effective September 19, 2006," 959 So.2d at 1122 n. 2, but nevertheless applied the earlier version of Rule 58(c) because it was the version that was effective “[a]t all times pertinent to [the] case." 959 So.2d at 1122. Although we understand that rationale, we reach a contrary conclusion based on our prior caselaw and on the nature and purpose of the Alabama Rules of Civil Procedure and the amendment to Rule 58(c).


author: PITTMAN, Judge. THOMPSON,

text:
    Willie M. ROSE and Robert W. Rose, Sr. v. SAFEWAY INSURANCE COMPANY OF ALABAMA, INC.
    2070625.
    Court of Civil Appeals of Alabama.
    June 12, 2009.
    William R. Davis and Charles M. Her-rington of Davis & Herrington, L.L.C., Montgomery, for appellants.
    Allen R. Trippeer, Jr., and Sandra Payne Hagood of Haskell, Slaughter Young & Rediker, LLC, Birmingham, for appellee.
   PITTMAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(E), Ala. R.App. P.; Kendall v. United Servs. Auto. Ass’n, 23 So.3d 1119, 1123 (Ala.2009); and State Farm Mut. Auto. Ins. Co. v. Causey, 509 F.Supp.2d 1026, 1029-30 (M.D.Ala.2007).

This appeal was transferred to this court by the Alabama Supreme Court pursuant to Ala.Code 1975, § 12-2-7(6).

BRYAN, THOMAS, and MOORE, JJ., concur.

THOMPSON, P.J., concurs specially.

THOMPSON,

Presiding Judge, concurring specially.

The relevant facts in this case are identical to those in Kendall v. United Services Automobile Ass’n, 23 So.3d 1119 (Ala.2009), in which our supreme court held that, when a driver is injured in an accident in which a government entity is at fault, a driver’s underinsured-motorist insurance carrier is not obligated to pay any amount of damages over the statutory maximum for which a government entity is legally liable, § 11-93-2, Ala.Code 1975, even though the evidence is undisputed that the damages incurred by the driver exceeded that statutory maximum. Because the relevant facts are identical, I agree that Kendall is dispositive of this case. However, I also agree with Chief Justice Cobb’s special concurrence in Kendall. It is the job of the Alabama Legislature, not of the appellate courts, to revisit the uninsured/underinsured motorists statute, § 32-7-23, Ala.Code 1975, to clarify whether it intended outcomes such as the one in the present case.


author: BRYAN, Judge.

text:
    Daniel Richard SMITH v. Robbie GASTON.
    2080005.
    Court of Civil Appeals of Alabama.
    June 12, 2009.
    Mitchell D. Hays, Tuscumbia, for appellant.
    Brian Hamilton of McDowell, Beason & Hamilton, P.C., Russellville, for appellee.
   BRYAN, Judge.

This is the second time this boundary-line dispute between Daniel Richard Smith and Robbie Gaston has been before this court. See Smith v. Gaston, 1 So.3d 1043 (Ala.Civ.App.2008). We reverse and remand.

In Smith, we stated the pertinent procedural history and facts:

“Gaston sued ... Smith to establish that he owned a disputed tract of land by adverse possession and to establish the location of the boundary line between his property and Smith’s property. ...
“Gaston owns record title to the north half of the southwest quarter of Section 23, Township 6 South, Range 10 West, in Franklin County. Gaston’s property is bordered on the north by the quarter-section line (‘the quarter-section line’) separating the southwest quarter of Section 23 from the northwest quarter of that section. Smith owns property in the northwest quarter of Section 23, lying north of Gaston’s property.
“The record on appeal contains three deeds in Smith’s chain of title. In the first deed, executed in 1972 (‘the 1972 deed’), Smith acquired a western portion of his pi-operty. The 1972 deed established the north right-of-way line of Franklin County Road 80 (‘the north right-of-way line’) as the southern boundary of this western portion of Smith’s property. County Road 80 and its rights-of-way generally lie slightly north of, and roughly parallel to, the quarter-section line that forms the northern boundary of Gaston’s property.
“The second deed, executed in 1984 (‘the 1984 deed’), conveyed to Smith and his sister, Kitty Gaston, a undivided parcel of land, the pertinent part of which now comprises the eastern portion of Smith’s property. The 1984 deed established the north right-of-way line as the southern boundary of the eastern portion of Smith’s property.
“In the third deed, executed in 1990 (‘the 1990 deed’), Kitty Gaston conveyed to Smith her interest in what now comprises the eastern portion of Smith’s property. Evidence in the record indicates that Kitty Gaston attempted to convey to Smith, via the 1990 deed, her interest in certain property acquired jointly by her and Smith via the 1984 deed. However, the 1990 deed, unlike the 1984 deed, established the southern boundary of the eastern portion of Smith’s property along the quarter-section line.”

1 So.3d at 1044.

Smith contends that the eastern portion of his property is bounded on the south by the quarter-section line, pursuant to the 1990 deed. Pursuant to his record title, Gaston’s property is bounded on the north by the quarter-section line. However, Ga-ston contends that he owns by adverse possession the property north of the quarter-section line extending to County Road 80. As noted in Smith, County Road 80 and its rights-of-way lie slightly north of, and roughly parallel to, the quarter-section line. Therefore, the ownership of the strip of land lying between the quarter-section line and County Road 80 and is in dispute.

In Smith, this court determined that the trial court’s original judgment was unclear. This court stated: “Because it is unclear where the trial court established the boundary line or lines in this case, we reverse the judgment as to that issue and remand the case with instructions that the trial court clarify the boundary line or lines at issue.” Id. at 1047. On remand, the trial court entered an amended judgment. That judgment states, in pertinent part:

“The Court hereby finds that the legal description contained in [Gaston’s] Exhibit #3, [ie., the 1984 deed,] and recorded in Deed Book 299, Page 711 in the Franklin County Probate Office, marks the northern boundary of [Ga-ston’s] propertyf.] The Court further finds that the legal description contained in [Gaston’s] Exhibit # 2, [ie., the 1972 deed,] and recorded in Deed Book 178, Page 526 in the Franklin County Probate Office, marks the southern boundary of [Smith’s] property. The Court further finds that [Smith] owns no property lying south of Franklin County Road # 80.”

The trial court found that “the legal description contained in [the 1984 deed] and recorded in Deed Book 299, Page 711 ..., marks the northern boundary of [Ga-ston’s] property.” As noted in Smith, the 1984 deed establishes the north right-of-way line as the southern boundary of the eastern portion of Smith’s property. Therefore, by referring to the description found in the 1984 deed, the trial court indicated that the north right-of-way line marked the northern boundary of Gaston’s property. However, neither the 1984 deed nor the description found in the 1984 deed is recorded in Deed Book 299, page 711. Instead, a deed from Gaston’s parents to Gaston is recorded in Deed Book 299, pages 711-13. That deed conveys to Ga-ston several parcels of property, including (1) “[t]he Northwest quarter of Southwest quarter of Section 23, Township 6 South, Range 10 West,” with the exception of a small tract on that parcel that Gaston had previously acquired; and (2) “[t]he NE 1/4 of SW 1/4 of Section 23, Township 6, Range 10 West.” That is, the deed recorded in Deed Book 299, pages 711-13, establishes the quarter-section line as the northern boundary of Gaston’s property. Conversely, if one uses the description found in the 1984 deed to establish the northern boundary of Gaston’s property, the north right-of-way line marks the northern boundary of Gaston’s property.

Accordingly, because the trial court’s amended judgment references both the description found in the 1984 deed and the description found in the deed recorded in Deed Book 299, pages 711-13, it is unclear where the trial court has established the northern boundary of Gaston’s property. A judgment establishing the north right-of-way line as the northern boundary of Gaston’s property, ie., a judgment using the description found in the 1984 deed, would indicate that Gaston has acquired property north of the quarter-section line by adverse possession. However, a judgment establishing the quarter-section line as the northern boundary of Gaston’s property, ie., a judgment citing the description found in the deed recorded in Deed Book 299, page 711-13, would indicate that Gaston has not acquired property by adverse possession. “ ‘[Questions of adverse possession are questions of fact properly determined by the trier of facts.’” Moorehead v. Burks, 484 So.2d 384, 385 (Ala.1986) (quoting Casey v. Keeney, 290 Ala. 94, 98, 274 So.2d 68, 71 (1973)).

Because it is unclear where the trial court established the northern boundary line of Gaston’s property, we reverse the judgment as to that issue and remand the case with instructions that the trial court clarify the location of that boundary line.

REVERSED AND REMANDED.

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

      . We note that the trial court’s amended judgment clearly establishes the southern boundary of Smith's property.

      . We note that the 1984 deed established the north right-of-way line as the southern boundary of the eastern portion of Smith's property. Using the description found in the 1984 deed to establish the northern boundary of Ga-ston's property would seem to establish the northern boundary of only the eastern portion of Gaston's property in the southwest quarter of section 23.


author: THOMPSON, Presiding Judge.

text:
    Howard S. ROSS v. Jerry ROGERS and Robbie Rogers.
    2080248.
    Court of Civil Appeals of Alabama.
    June 12, 2009.

      Patrick A. Jones, Huntsville, for appellant.
    Robert W. Hanson, Albertville, for ap-pellees.
   THOMPSON, Presiding Judge.

Howard S. Ross appeals from the judgment of the Marshall Circuit Court denying his attempt to redeem certain real property that Jeri'y Rogers and Robbie Rogers had purchased at a foreclosure sale. For the reasons stated herein, we reverse and remand.

In 2000, Ross sold a tract of property located in Madison County (“the Madison County property”) to Geoffrey Pierce and Cherie Pierce. The sales price was approximately $100,000. To cover this price, the Pierces made a down payment to Ross of $1,000, assumed an existing mortgage loan on the property for which Ross was responsible, and executed two promissory notes in favor of Ross. One of the notes, for an amount not disclosed in the record, was secured by a second mortgage on the Madison County property. The other note, for the amount of $17,000, was secured by a second mortgage on property located in Marshall County that the Pierces owned (“the Marshall County property”). The $17,000 note provided that no interest would accrue on the note and no payments would be made on the note until the Pierces sold or conveyed the Marshall County property or defaulted on the note secured by the Madison County property, at which time the $17,000 note would become due and payable. The $17,000 note included a handwritten provision that stated: “The payoff of this mortgage shall be used to reduce the balance of the mortgage of the property in Madison County of even date by $17,000.” The mortgage on the Marshall County property securing the $17,000 note was junior to a preexisting mortgage on that property.

In 2001, after the Pierces failed to make payments to Ross on the Madison County property, Ross foreclosed on the mortgage covering that property. At the foreclosure sale, which Ross conducted on August 14, 2001, Ross purchased the Madison County property for $100 and the reassumption of the first mortgage loan on the Madison County property. There was no evidence presented at trial regarding the value of the Madison County property at the time of the foreclosure sale, although there was testimony that the Pierces, while they had lived in the house on the Madison County property, had done substantial damage to the house. Ross did not foreclose on the mortgage on the Marshall County property securing the $17,000 promissory note at that time. In 2005, Ross sold the Madison County property for $115,000.

In 2004, Provident Bank, which owned the first mortgage on the Marshall County property, foreclosed on that mortgage. On June 28, 2004, the Rogerses purchased that property at the foreclosure sale for $19,901. Shortly thereafter, they purchased the Pierces’ right to redeem that property and began making repairs and improvements to the property.

On April 11, 2005, Ross indicated in a letter to the Rogerses that, by virtue of his junior mortgage on the Marshall County property, he intended to redeem that property. Pursuant to § 6-5-252, Ala.Code 1975, he requested a statement from the Rogerses listing the amount they had paid for the property and any lawful charges they claimed regarding the property. The Rogerses responded by providing a statement of the purchase price and what they contended were the legal charges relating to the property, which, together, totaled $39,168.55. In a letter dated June 10, 2005, Ross responded that he wished to verify the statement of charges the Rog-erses had submitted, requested that they provide receipts verifying the charges, and appointed a referee to determine the proper value of the charges pursuant to § 6-5-254, Ala.Code 1975.

On June 27, 2005, Ross filed an action against the Rogerses alleging, among other things, that he could not reasonably determine the amount necessary to redeem the Marshall County property. He sought a judgment from the trial court excusing him for failure to tender the amount necessary to redeem the property, preserving his right to redeem the property, determining the amount necessary to redeem the property, and granting any further appropriate relief. After the Rog-erses failed to file an answer to Ross’s complaint, the trial court entered a default judgment against them on March 15, 2006. That judgment provided that Ross was entitled to redeem the property, set the amount necessary to redeem the property at $22,581, and ordered the Rogerses to execute a quitclaim deed conveying the property to Ross. Ross thereafter inter-pleaded the $22,581 into the court, alleging that the Rogerses had failed to execute a quitclaim deed for the property as required by the default judgment.

On July 13, 2006, the Rogerses filed a motion to set aside the default judgment pursuant to Rule 60(b)(1), Ala. R. Civ. P., which the trial court granted. On May 19, 2008, the trial court held a bench trial. At the beginning of the trial, the Rogerses moved to amend their answer by adding what they indicated was an affirmative defense that the $17,000 promissory note executed by the Pierces in favor of Ross and secured by the mortgage on the Marshall County property had been extinguished when Ross purchased the Madison County property at the foreclosure sale on August 14, 2001. Ross objected to the amendment. The trial court construed the proposed amendment to the answer as one asserting the defense of payment and the defense of failure of consideration. The trial court held that the former defense could be asserted under a general denial rather than as an affirmative defense and that, therefore, amendment of the answer was not necessary to assert that defense. The trial court held that the latter defense constituted an affirmative defense, and it allowed the Rogerses to amend their answer to add that defense.

During the bench trial, Ross testified that the Pierces did not make any payments on the $17,000 promissory note. He stated that he could not remember the exact price for which he had sold the Madison County property to the Pierces but that it was around $100,000. He testified that the Pierces had planned to sell the Marshall County property before purchasing the Madison County property and that they were supposed to pay Ross $17,000 from the proceeds of that sale as part of the purchase price of the Madison County property. The Pierces were unable to sell the Marshall County property, however, and, as a result, they were unable to pay Ross the agreed $17,000 at the time of them purchase of the Madison County property. Ross testified that, in lieu of the $17,000 down payment, he agreed to take a $17,000 promissory note secured by the Marshall County property, with the note not becoming due until the Pierces sold or otherwise conveyed the Marshall County property.

Ross testified that he did not foreclose on the mortgage on the Marshall County property at the time that he foreclosed on the mortgage on the Madison County property because, Ross stated, in order to convince the Pierces to leave the Madison County property after foreclosure, he had told the Pierces that, if they would return to the Marshall County property, he would not foreclose on his mortgage on that property for as long as they continued living there. Ross testified that, at the time he foreclosed on his mortgage on the Madison County property, the first mortgage on that property, which he reas-sumed upon purchasing the Madison County property at the foreclosure sale, had a balance of approximately $60,000. Ross testified that he no longer had the promissory note that was secured by the Madison County property and that he could not recall the value of that note. He still had possession of the $17,000 promissory note secured by the Marshall County property, however, and it was entered into evidence as an exhibit.

Other witnesses testified at the bench trial as well, but none of their testimony contradicted the portions of Ross’s testimony set forth above.

On July 14, 2008, the trial court entered a judgment that, in addition to making findings of fact, read:

“After careful consideration of the evidence the Court finds that [Ross] has failed to convince the Court that he is entitled to the relief sought in two respects:
“A. If [Ross]’s complaint is construed to be a complaint brought pursuant to Alabama Code Section 6-5-255, Section 6-5-256 requires the Court to settle and adjust the equities of the parties.[] It appears the Rogerses would have a superior right of redemption obtained from the Pierces and there was insufficient evidence at trial to balance the equities between the parties.
“B. Ross has failed to convince the Court there was any balance due on his Madison County second mortgage foreclosed by him on August 14, 2001, and thus any remaining indebtedness on the mortgage which is the subject of this action. Any ambiguities in the documents dated September 1, 2000, are to be construed against Ross who drafted the documents.
“C. [Ross] having failed to satisfy this Court he is entitled to the relief sought, said request is DENIED and he is entitled to a return by the Clerk to him of the $22,5[8]1.00 paid into Court.”

Following the denial of his postjudgment motion, Ross filed a timely notice of appeal to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7, Aa.Code 1975.

In Robinson v. Evans, 959 So.2d 634, 637 (AIa.2006), our supreme court stated the following with regard to the appropriate standard of review of a judgment following a bench trial:

“The evidence in this case was presented to the trial judge in a bench trial. ‘ “When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.” ’ Smith v. Muchia, 854 So.2d 85, 92 (Ala.2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996)); see also First Nat’l Bank of Mobile v. Duckworth, 502 So.2d 709 (Ala.1987). As this Court has stated,
“ ‘ “The ore terms rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.” Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). The rule applies to “disputed issues of fact,” whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala.1995). The ore terms standard of review, succinctly stated, is as follows:
“ ‘ “[W]here the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.” ’
“Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala. 2000) (quoting Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977)). However, ‘that presumption [of correctness] has no application when the trial court is shown to have improperly applied the law to the facts.’ Ex parte Board of Zoning Adjustment of Mobile, 636 So.2d 415, 417 (Ala.1994).”

Ross contends that the trial court erroneously placed on him the burden of proving, in effect, that the $17,000 promissory note had not been satisfied as a prerequisite to exercising his right as a junior mortgagee to redeem the Marshall County property. Specifically, he argues, the Rogerses’ defense that the $17,000 promissory note had been paid and was satisfied such that it could not support the mortgage on the Marshall County property was an affirmative defense for which the Rog-erses’ bore the burden of proof. He argues that the Rogerses failed to carry that burden at trial. We agree.

There was no dispute at trial regarding whether Ross’s mortgage on the Marshall County property or the $17,000 promissory note that it secured had, at least at one time, constituted valid and enforceable instruments. Instead, the Rogerses asserted that the promissory note had been satisfied and that, as a result of that satisfaction, the mortgage was no longer supported. Such an assertion constitutes an affirmative defense to the enforcement of the mortgage and the powers granted thereunder. Not only does Rule 8(c), Ala. R. Civ. P., state that the defenses of “payment” and “failure of consideration,” both of which the trial court found the Rogers were asserting, constitute affirmative defenses, our supreme court has stated, in the analogous situation of when a mortgagee seeks to exercise its foreclosure rights under a mortgage, that the mortgagor’s defense that the promissory note secured by the mortgage had been satisfied, thus rendering the mortgage inoperative, constitutes an affirmative defense. See Adams v. Baker, 268 Ala. 256, 258, 105 So.2d 703, 704 (1958). As to the burden of proof with regard to an affirmative defense, our supreme court has stated that “[t]he proponent of an affirmative defense ‘bears the burden of proving the essential elements of his affirmative defenses.’ ” Ex parte Ramsay, 829 So.2d 146, 152 (Ala.2002) (quoting Ex parte Blue Cross & Blue Shield of Alabama, 773 So.2d 475, 478 (Ala.2000)). See also McCullough v. McCullough, 247 Ala. 286, 288, 24 So.2d 123, 124 (1945) (holding that a mortgagor “who claims credits on or full payment of the mortgage indebtedness [ ] has the burden to establish it by satisfactory evidence ....”).

Furthermore, our supreme court has held that when the obligee under a promissory note is in possession of that note and the note has not been canceled, there is a rebuttable presumption that the debt evidenced by the note has not been paid. McCary v. Crumpton, 267 Ala. 484, 488, 103 So.2d 714, 717 (1958). See also McCullough, 247 Ala. at 288, 24 So.2d at 124 (“[T]here is a rebuttable presumption that the debt [on a mortgage] has not been satisfied where, as here, [a] twenty-year period has not elapsed and the obligee is in the possession of the uncancelled obligation.”). Although a presumption does not, in a strict sense, constitute evidence, a presumption is “ ‘[a] legal inference or assumption that a fact exists,’ ” and its effect is to cast on the party against whom the presumption operates the burden of producing evidence negating the presumption. Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 518 (Ala.2003) (quoting Blank’s Law Dictionary 1203 (7th ed.1999)). The presumption arising from Ross’s possession of the uncancelled $17,000 promissory note in the present case, thus, had the same effect as the fact that the Rogerses’ defenses of payment and failure of consideration constituted affirmative defenses: the Rogerses bore the burden of producing evidence demonstrating that the $17,000 promissory note had been satisfied.

Our review of the record discloses no evidence demonstrating that the promissory notes the Pierces executed in favor of Ross were satisfied. The only evidence of any payments on either of the notes was Ross’s purchase of the Madison County property at the foreclosure sale. That purchase yielded a payment of $100 on the promissory note secured by the mortgage on the Madison County property; the purchase did not yield any payment on the $17,000 promissory note. Although it is true that, four years after purchasing the Madison County property for the first-mortgage reassumption and $100, Ross sold the Madison County property for $115,000, no profit that Ross made from that later sale was required to be credited to either of the promissory notes; for any such sale to have resulted in a credit to the promissory notes, the sale must have occurred during the Pierces’ redemptive period for the Madison County property, which expired one year after Ross purchased it at the foreclosure sale. See Springer v. Baldwin County Fed. Sav. Bank, 562 So.2d 138, 139-40 (Ala.1989). There being no evidence of any other payments credited to either of the Pierces’ promissory notes, we conclude that the Rogerses failed to carry their burden of proving that the $17,000 promissory note had been satisfied.

The Rogerses advance, for the first time on appeal, the contention that Ross created an artificial deficiency on the promissory note secured by the Madison County property when he purchased that property at the foreclosure sale for $100 and the reassumption of the first mortgage on the property. Our review of the record discloses no evidentiary support for this assertion. Particularly lacking from the record is any evidence of the value of the Madison County property at the time of the foreclosure sale, a necessary factual predicate for any determination as to whether the price Ross paid at the foreclosure sale (which included his reassumption of a mortgage debt that, he testified, had an approximate balance of $60,000) “was so inadequate as to raise a presumption of fraud, unfairness, or culpable mismanagement” on the part of Ross. Breen v. Baldwin County Fed. Sav. Bank, 567 So.2d 1329, 1333 (Ala.1990). As a result, the Rogerses argument in this regard is without merit.

Ross also contends that the other basis for the trial court’s judgment, that the Rogerses possessed a right to redeem the Marshall County property that was senior to Ross’s right to redeem the property, provided no basis for preventing Ross’s redemption of the property. He argues that, although the Rogerses purchased the Pierces’ redemption rights with regard to the Marshall County property, they never exercised that right, and, as a result, it came to an end one year after the Rogerses purchased the Marshall County property at the foreclosure sale. We agree.

Section 6-5-248(b) provides that a person or entity that possesses a right to redeem property must exercise that right within one year following the date the property to which the redemption right is related is sold at the foreclosure sale. In the present case, the Rogerses purchased the Marshall County property at the foreclosure sale on June 28, 2004. A few days later, they purchased from the Pierces the Pierces’ right to redeem that property. The Rogerses never exercised their right to redeem, and it expired on June 28, 2005. Because the Rogerses never exercised their right to redeem the property, there is no basis to conclude that Ross was somehow estopped or foreclosed from asserting his right to redeem the property. As a result, the trial court erred when it determined that the Rogerses’ expired redemption right barred Ross’s exercise of his right to redeem the Marshall County property. Given this conclusion, we further conclude that there was no basis for the trial court’s additional holding that “there was insufficient evidence at trial to balance the equities between the parties” as required by § 6-5-256.

Based on the foregoing, we conclude that the trial court erred when it held that Ross was not entitled to exercise his right of redemption by virtue of holding a junior mortgage as to the Marshall County property. For this reason, we reverse the trial court’s judgment and remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN, THOMAS, and MOORE, JJ., concur.

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

      . On appeal, the Rogerses contend that the Pierces did not assume the existing mortgage loan on the Madison County property as part of the Pierces’ payment for that property. In its final judgment, however, the trial court found, implicitly, that the Pierces did, in fact, assume the existing mortgage loan on the Madison County property when they purchased that property. That finding is supported by substantial evidence submitted at trial.

      . Section 6-5-248, Ala.Code 1975, provides that a junior mortgagee may redeem property covered by its mortgage within one year following the sale of the property at foreclosure.

      . Section 6-5-252 provides:
      "Anyone desiring and entitled to redeem may make written demand of the purchaser or his or her transferees for a statement in writing of the debt and all lawful charges claimed by him or her, and such purchaser or their transferees shall, within 10 days after such written demand, furnish such person making the demand with a written, itemized statement of all lawful charges claimed by him or her. The redeeming party must then tender all lawful charges to the purchaser or his or her transferee. If the purchaser or his or her transferee fails to furnish a written, itemized statement of all lawful charges within 10 days after demand, he or she shall forfeit all claims or right to compensation for improvements, and the party so entitled to redeem may, on the expiration of the 10 days, file his or her complaint without a tender to enforce his or her rights under this article and file a lis pendens with the probate court.
      "Tender or suit must be made or filed within one year from foreclosure.”

      . Section 6-5-254 provides:
      "(a) Any person offering to redeem must pay to the then holder of the legal title the value of all permanent improvements made on the land since the sale, and if the holder of the legal title cannot be ascertained, payment may be made to the circuit court of the county having jurisdiction of the subject matter when the complaint is filed to redeem. In response to written demand made under Section 6-5-252, the then holder of the legal title shall, within 10 days from the receipt of such demand, furnish the proposed redemptioner with the amount claimed as the value of such permanent improvements; and within 10 days after receipt of such response, the proposed redemptioner either shall accept the value so stated by the then holder of the legal title or, disagreeing therewith, shall appoint a referee to ascertain the value of such permanent improvements and in writing notify the then holder of the legal title of his or her disagreement and of the fact and name of the referee appointed by him or her. Within 10 days after the receipt of such notice, the then holder of the legal title shall appoint a referee to ascertain the value of the permanent improvements and advise the proposed redemptioner of the name of the appointee. The two referees shall, within 10 days after the then holder of the legal title has appointed his or her referee, meet and confer upon the award to be made by them. If they cannot agree, the referees shall at once appoint an umpire, and the award by a majority of such body shall be made within 10 days after the appointment of the umpire and shall be final between the parties.
      "(b) If a person offering to redeem fails or refuses to nominate a referee as provided in subsection (a) of this section, he or she must pay the value put upon the improvements by the then holder of the legal title. If the then holder of the legal title fails or refuses to appoint a referee, as provided in subsection (a) of this section, the then holder of the legal title shall forfeit his or her claim to compensation for such improvements. The failure of the referees, or either of them, to act or to appoint an umpire shall not operate to impair or to forfeit the right of either the proposed redemptioner or of the then holder of the legal title in the premises; and, in the event of failure without fault of the parties to effect an award, the appropriate court shall proceed to ascertain the true value of such permanent improvements and enforce the redemption accordingly.”
      We do not, as part of this appeal, make any determination with regard to whether and to what extent either party complied with the mandates of § 6-5-254.

      . The record does not contain the Rogerses’ initial answer to the complaint.

      . Section 6-5-255 provides:
      "If the purchaser or his or her vendee or transferee fails or refuses to reconvey to such party entitled and desiring to redeem such title as the party acquired by the sale and purchase, such party so paying or tendering payment shall thereupon have the right to file in the circuit court having jurisdiction thereof a complaint to enforce his or her rights of redemption.”
      Section 6-5-256 provides:
      "Upon the filing of any complaint as provided in these sections and paying into court the amount of purchase money and the interest necessary for redemption and all lawful charges, if the written statement thereof has been furnished or, if not furnished, offering to pay such debt or purchase price and all lawful charges, the circuit court shall take jurisdiction thereof and settle and adjust all the rights and equities of the parties, as provided in this article.”

      . The Rogerses appear to assert, based on the language in the $17,000 promissory note indicating that full payment of that note would "be used to reduce the balance of the mortgage of the property in Madison County of even date by $17,000,” that the $17,000 promissory note would be considered satisfied if the promissory note secured by the Madison County property was satisfied. We are not convinced that the cited language in the $17,000 promissory note has any such meaning. Assuming that it does, however, the language certainly indicates that the other promissory note bore a value of at least $17,000, and there was no evidence of any payment on that other note other than the $ 100 that Ross paid at the foreclosure sale.

      . The Rogerses contend that the portion of Ross’s purchase of the Madison County property at the foreclosure sale constituted by his reassumption of the first mortgage was "a sham” because he testified at trial that he had continued to make the payments on that mortgage after he had sold the property to the Pierces. The trial court's finding that part of Ross's purchase of the Madison County property at the foreclosure sale involved his reas-sumption of the first mortgage on that property was supported by the evidence. See note 1, supra.

      . Furthermore, we are not at all convinced that, even if the amount Ross paid for the Madison County property created "a presumption of fraud, unfairness, or culpable mismanagement,” see Breen, 567 So.2d at 1333, the appropriate remedy would have been to judicially declare both promissory notes satisfied. The proper remedy appears to be the setting aside of the foreclosure sale, a remedy that no party has sought in the present case. See Breen, 567 So.2d at 1333 (" 'The general rule is that, "where the price realized at the [foreclosure] sale is so inadequate as to shock the conscience, it may itself raise a presumption of fraud, trickery, unfairness, or culpable mismanagement, and therefore be sufficient ground for setting the sale aside.” ' " (quoting Hayden v. Smith, 216 Ala. 428, 430-31, 113 So. 293 (1927))).

      . We are not here presented with a case in which holders of competing rights to redeem the same real property have each sought to exercise their rights. We do not address the appropriate outcome of such a situation.

      . In his appellate briefs, Ross raises further contentions regarding the amount of money the trial court should require him to pay to redeem the Marshall County property. Those matters, which require factual determinations, are appropriately left for the trial court's consideration on remand.


author: WISE, Judge.

text:
    Brandon Lee LANSDELL v. STATE of Alabama.
    CR-05-0243.
    Court of Criminal Appeals of Alabama.
    Sept. 28, 2007.
    Rehearing Denied Jan. 18, 2008.

      Kevin Denver Teague, Decatur, for appellant.
    Troy King, atty. gen., and Marc A. Star-rett, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Brandon Lee Lansdell, was convicted of one count of making a terrorist threat, a violation of § 13A-10-15, Ala.Code 1975. Because Lansdell had two prior felony convictions, he was sentenced pursuant to § 13A-5-9, Ala.Code 1975, to 15 years’ imprisonment.

The evidence tended to establish that James Allen Jones, Jr., and his family resided at 1408 Beach Street Southeast in Decatur. Lansdell resided next door at 1406 Beach Street Southeast — along with his mother and grandmother. During the early morning hours of October 7, 2003, a car belonging to one of Jones’s daughters went up in flames while it was parked beneath the carport of Jones’s house. Lansdell broke into the Jones house and woke the family, then went back outside and sat down on the front porch.

When police arrived, the car was “fully engulfed in flames.” By the time the fire was brought under control, the carport, the aluminum siding on the house, and another vehicle were also burned. A tree in Lansdell’s yard was also smoldering. Found at the scene was a distinctive gasoline can, similar to one owned by Lansdell.

Around 2:00 a.m. on January 3, 2004, Jones went to a side door of his house and saw Elliot Hadavi — the boyfriend of one of his daughters — at the back door to Lans-dell’s house. Lansdell had been seen running into his house at approximately the same time as they had discovered a stereo missing from Allison’s car, and Hadavi wanted to question Lansdell about the incident. As Jones stood nearby, Lansdell came out of his house carrying some type of stick. In turn, Hadavi retrieved a small baseball bat from his car. Lansdell and Hadavi then got into a heated argument. As Jones attempted to restrain Hadavi, he heard Lansdell say, “I wish I would have burned your whole family up that night” or “I wish I would have burned all y’all up that night.” Jones believed these words to be a threat to his family, and he notified the police. During the exchange, Jones told Lansdell, “I ought to put a bullet in your a-s-s.” Jones then accused Lansdell of starting the fire that had occurred the previous October.

By the time the police arrived, Lansdell was back inside his house. According to Jones, Lansdell stood at the window to his house and called out that, “I’ll just blow y’all’s a-s-s up.” A number of people heard Lansdell’s comments, including Jones, his daughters, Hadavi, and the police officers dispatched to the scene. Decatur police officer Keith Hornbuclde heard Lansdell say, “Jimmy, I’m going to blow up your m.f-.house and burn all you m.f-” Lansdell was subsequently arrested and charged with first-degree arson, based on the October 2003 incident, and with making a terrorist threat, based on the January 2004 incident.

At trial, evidence concerning difficulties between Lansdell and the Jones family was presented. Jones testified that he believed that approximately five months before the October 2003 fire, Lansdell had stolen a stereo from one of the Joneses’ cars. However, Jones was reluctant to press charges because he did not want any retaliation.

April Greene, a half-cousin of Lansdell, who once lived at the Beach Street house with Lansdell also testified. She stated that a few days before the October 2003 fire at the Jones house her car was burned, as well as Lansdell’s. Greene identified the distinctive gas can found at the scene of the October 2003 fire at the Jones house as belonging to Lansdell.

Lansdell’s grandmother, Loren Alexander, testified on her grandson’s behalf. She stated that Lansdell had gone next door to save the Jones family. She further stated that during the January 2004 confrontation she never heard Lansdell threaten anyone.

After both sides rested, the trial court instructed the jury on the law applicable to Lansdell’s case. The jury acquitted Lans-dell of first-degree arson, but found him guilty of making a terrorist threat. This appeal followed.

I.

Lansdell argues that the statute under which he was convicted, § 13A-10-15, Ala.Code 1975, is unconstitutional. Specifically, he argues that this statute is both overbroad and vague.

Section 13A-10-15 provides, in pertinent part:

“(a) A person commits the crime of making a terrorist threat when he or she threatens by any means to commit any crime of violence or to damage any property by doing any of the following:
“(1) Intentionally or recklessly:
a. Terrorizing another person.”

The validity of a statute may be challenged under two different doctrines: the overbreadth doctrine and the vagueness doctrine. City of Chicago v. Morales, 527 U.S. 41, 52, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). “[T]he overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when ‘judged in relation to the statute’s plainly legitimate sweep.’ ” Morales, 527 U.S. at 52, 119 S.Ct. 1849 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). Moreover, “even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests.” Morales, 527 U.S. at 52, 119 S.Ct. 1849 (citing Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)). The overbreadth doctrine protects the rights guaranteed by the First Amendment, see Morales, 527 U.S. at 52, 119 S.Ct. 1849; the vagueness doctrine seeks to protect the due-process rights guaranteed by the Fourteenth Amendment. See Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 (1939).

As evidenced above, the overbreadth doctrine applies to activities that are protected from prosecution by the First Amendment. As this Court has noted:

“ ‘ “The overbreadth doctrine derives from the First Amendment, see Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), and serves to invalidate legislation so sweeping that, along with its allowable proscriptions, it also restricts constitutionally-protected rights of free speech, press, or assembly, see e.g., Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971).” ’ ”

Elston v. State, 687 So.2d 1239, 1244 (Ala.Crim.App.1996) (quoting McCall v. State, 565 So.2d 1163, 1165 (Ala.Crim.App.1990)); accord Hyshaw v. State, 893 So.2d 1239, 1242 (Ala.Crim.App.2003).

The overbreadth doctrine is to be used sparingly and only as a last resort. See Broadrick v. Oklahoma, 413 U.S. at 613, 93 S.Ct. 2908. A challenge to a statute on the grounds of overbreadth is “the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the [a]ct would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). The fact that a statute might, under the right set of circumstances, be unconstitutional “is insufficient to render it wholly invalid, since we have not recognized an ‘over-breadth’ doctrine outside the limited context of the First Amendment.” Salerno, 481 U.S. at 745, 107 S.Ct. 2095.

Just as words that create an immediate panic — such as a false cry of “fire” in a crowded theater — are not entitled to constitutional protections, see Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919), Lansdell has no First Amendment right to threaten to commit a violent crime or to damage property and thus to terrorize the person to whom his threat is directed. As the United States Supreme Court has made clear, threats of violence enjoy no protections under the First Amendment. See R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 388, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Virginia v. Black, 538 U.S. 343, 353, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003).

Alabama courts have previously upheld the constitutionality of statutes prohibiting threatening acts, recognizing that threatening acts are unprotected by the First Amendment. “Whether the threat be against the life of a president, or to bum the house of an ordinary citizen, the protection of the First Amendment does not extend to such conduct.” Works v. State, 57 Ala.App. 373, 375, 328 So.2d 624, 625-26 (Ala.Crim.App.1976) (emphasis supplied). Thus, Lansdell cannot threaten his neighbor with violence in order to intentionally or recklessly terrify his neighbor, and then successfully maintain that the State is prohibited from punishing his conduct based on the overbreadth doctrine. Because Lansdell’s conduct is not constitutionally protected speech, his claim that § 13A-10-15 is overbroad must fail. See Hyshaw v. State, 893 So.2d at 1242.

Alternatively, Lansdell argues that § 13A-10-15 is unconstitutionally vague. As this Court noted in Vaughn v. State, 880 So.2d 1178 (Ala.Crim.App.2003):

“ ‘ “The doctrine of vagueness ... originates in the due process clause of the Fourteenth Amendment, see Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939), and is the basis for striking down legislation which contains insufficient warning of what conduct is unlawful, see United States v. National Dairy Products Corporation, 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963).
“ ‘ “Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989, 996 (1954). A vague statute does not give adequate ‘notice of the required conduct to one who would avoid its penalties,’ Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 96 L.Ed. 367, 371 (195[2]), is not ‘sufficiently focused to forewarn of both its reach and coverage,’ United States v. National Dairy Products Corporation, 372 U.S. at 33, 83 S.Ct. at 598, 9 L.Ed.2d at 566, and ‘may trap the innocent by not providing fair warning,’ Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222, 227-28 (1972).
‘ ‘ “As the United States Supreme Court observed in Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948):
“ ‘ “ ‘There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment. The vagueness may be from uncertainty in regard to persons within the scope of the act, or in regard to the applicable tests to ascertain guilt.’
“ ‘ “333 U.S. at 515-16, 68 S.Ct. at 670, 92 [L.Ed. at] 849-50 [citations omitted].”
‘“McCrary v. State, 429 So.2d 1121, 1123-24 (Ala.Cr.App.1982), cert. denied, 464 U.S. 913, 104 S.Ct. 273, 78 L.Ed.2d 254 (1983).’
“McCall v. State, 565 So.2d 1163, 1165 (Ala.Crim.App.1990).
‘ ‘ “ ‘As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminate-ry enforcement.’ Kolender v. Lawson, 461 U.S. 352 [357], 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (citations omitted). A statute challenged for vagueness must therefore be scrutinized to determine whether it provides both fair notice to the public that certain conduct is proscribed and minimal guidelines to aid officials in the enforcement of that proscription. See Kolender, supra; Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).” ’
“Timmons v. City of Montgomery, 641 So.2d 1263, 1264 (Ala.Crim.App.1993), quoting McCorkle v. State, 446 So.2d 684, 685 (Ala.Crim.App.1983)....
“.... The judicial power to declare a statute void for vagueness ‘should be exercised only when a statute is so incomplete, so irreconcilably conflicting, or so vague or indefinite, that it cannot be executed, and the court is unable, by the application of known and accepted rules of construction, to determine, with any reasonable degree of certainty, what the legislature intended.’ Jansen v. State ex rel. Downing, 273 Ala. 166, 170, 137 So.2d 47, 50 (1962).”

880 So.2d at 1194-96; see also O’Callaghan v. State, 945 So.2d 467, 474-75 (Ala.Crim.App.2006).

The mere fact that a statute contains a term that is not specifically defined by the statute or as part of the statutory scheme does not automatically render the statute void for vagueness. See, e.g., Scott v. State, 917 So.2d 159 (Ala.Crim.App.2005); State v. Randall, 669 So.2d 223, 226 (Ala.Crim.App.1995); Musgrove v. State, 519 So.2d 565, 582-83 (Ala.Crim.App.), aff'd, 519 So.2d 586 (Ala.1986).

Lansdell contends that § 13A-10-15 fails to pass constitutional muster because certain terms contained therein — such as “by any means,” “crime of violence,” and “terrorizing” — “defy definition.” After carefully reviewing § 13A-10-15, we conclude that it is not unconstitutionally vague so as to violate Lansdell’s due-process rights. Moreover, these terms — in their common usage — are ones that could be understood by the average person. For example, “by any means” signifies that there is no limitations on the means by which a person may threaten another — in person, by written communication, over the telephone, or by some other means of electronic communication, such as e-mail or text-messaging — and be found in violation of § 13A-10-15. We note that this term is contained in a number of Alabama statutes and, to date, no statute has been invalidated on the ground that this term was vague.

Similarly, the term “crime of violence” means nothing more than a violent crime. We further note that this term is defined elsewhere in the Alabama Code, see §§ 12-25-32 and 13A-11-70, Ala.Code 1975. Certainly, threatening to “burn up” the Jones house could be considered a threat of arson, specifically identified as a violent crime. See § 12-25-32(13)(a)(l), Ala.Code 1975. Thus, the failure to define “crime of violence” does not render § 13A-10-15 void for vagueness.

As for the term “terrorizing,” this Court has addressed in some detail the meaning of this term when reviewing a vagueness challenge to § 13A-6-43 — the statute defining the offense of kidnapping. In Musgrove v. State, 519 So.2d 565 (Ala.Crim.App.), aff'd, 519 So.2d 586 (Ala.1986), this Court rejected a vagueness challenge to our first-degree-kidnapping statute, despite the fact that the statute did not define the term “terrorism.” We noted that in construing criminal statutes words must be given their ordinary, commonly understood meaning, concluding that the statute provided fair warning of its prohibited conduct. 519 So.2d at 582-83. As we noted in Musgrove:

“ ‘Webster’s New Collegiate Dictionary defines “terror” as “to fill with intense fear or to coerce by threat or force.” ... No magic words nor incantations on part of the witness is necessary to establish “terror.” ’ Rogers v. State, 687 S.W.2d 337, 341-42 (Tex.Cr.App.1985) (defining ‘terror’ as an element of aggravated kidnapping). ‘Webster’s Third New International Dictionary (1981) casts some light upon the meaning of “terrorize:” It may mean to fill with terror or anxiety; or to' coerce by threat or violence. Perhaps, to excite fear; or to rule by intimidation, p. 2361. Terrorism may be the systematic use of terror as a means of coercion. It may create an atmosphere of threat or violence, p. 2361. Terror may denote stark fear; a state of intense fright or apprehension, p. 2361. Terrorize, as distinct from terrify, often implies an intentional affecting with terror, p. 912 (frighten). See also, Arto v. State, 19 Tex.App. 126, 136 (1886), stating that terror means more than fright or alarm.’ Padgett v. State, 683 S.W.2d 453, 457 (Tex.App. 4 Dist.1983). ‘Terrorize means to cause extreme fear by use of violence or threats.’ State v. Schweppe, 306 Minn. 395, 237 N.W.2d 609, 614 (1975). ‘Terrorize is not defined therein [by statute], so it must be measured by what men of common intelligence would consider it to mean.... The word “terrorize” means to reduce to terror by violence or threats, and terror means an extreme fear or fear that agitates body and mind. Given limiting definitions for the words “threat” and “terrorize,” as those terms are understood by men of common intelligence, [the statute] proscribing terroristic threats survives any constitutional challenge for vagueness and uncertainty.... ’ State v. Gunzel-man, 210 Kan. 481, 502 P.2d 705, 709-10 (1972). Terrorize ‘means to reduce to terror by violence or threats, and terror means an extreme fear or fear that agitates body and mind.’ Armstrong v. Ellington, 312 F.Supp. 1119, 1126 (W.D.Tenn.1970), holding that the provision of a statute prohibiting walking or traveling for purposes of ‘terrorizing’ any citizen was not unconstitutionally vague or uncertain.”

519 So.2d at 583.

Here, the trial court, when instructing Lansdell’s jury on the definition of “terrorize,” used a definition consistent with the definition provided by this Court in Mus-grove; that is, “[t]o terrorize another person is to alarm that person, to frighten that person, to put into them a sense of dread.” (R. 434.) We conclude, therefore, that § 13A-10-15 is not unconstitutionally vague, despite the fact that the statute itself does not specifically define the aforementioned terms.

Finally, we note that Alabama is not alone in criminalizing conduct by which an individual terrorizes others by threatening violence or damage to property. Indeed, numerous other states have criminalized such conduct. Moreover, those statutes have withstood constitutional challenges based on overbreadth and vagueness. See Allen v. State, 759 P.2d 541, 545 (Alaska Ct.App.1988); In re Ryan A., 202 Ariz. 19, 39 P.3d 543 (Ariz.Ct.App.2002); People v. Maciel, 113 Cal.App.4th 679, 685, 6 Cal.Rptr.3d 628, 634 (2003); State v. Crudup, 81 Conn.App. 248, 263, 838 A.2d 1053, 1064 (2004); Saidi v. State, 845 So.2d 1022, 1026 (Fla.Dist.Ct.App.2003); Reilly v. State, 847 F.Supp. 951, 958 (M.D.Fla.1994); Lanthrip v. State, 235 Ga. 10, 218 S.E.2d 771 (1975); Masson v. Slaton, 320 F.Supp. 669, 672-73 (N.D.Ga.1970); State v. Chung, 75 Haw. 398, 862 P.2d 1063 (1993); Thomas v. Commonwealth, 574 S.W.2d 903, 909 (Ky. Ct.App.1978); Sykes v. State, 578 N.W.2d 807 (Minn.Ct.App.1998); State v. Schmailzl, 243 Neb. 784, 740-41, 502 N.W.2d 463, 467-68 (1993); Commonwealth v. Bunting, 284 Pa.Super. 444, 455, 426 A.2d 130, 136 (1981); State v. Lanier, 81 S.W.3d 776 (Tenn.Crim.App.2000).

Accordingly, for the aforementioned reasons, Lansdell’s challenge to the constitutionality of § 13A-10-15 must fail.

II.

Lansdell next argues that the State failed to prove a prima facie case of making a terrorist threat. Specifically, he argues that the State failed to prove that he intentionally or recklessly terrorized James Allen Jones, Jr., or that Jones was terrorized by his threat.

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

Gavin v. State, 891 So.2d 907, 974 (Ala.Crim.App.2003), cert. denied, 891 So.2d 998 (Ala.2004) (quoting Ward v. State, 610 So.2d 1190, 1191 (Ala.Crim.App.1992)). See also Ward v. State, 814 So.2d 899, 908-10 (Ala.Crim.App.2000), cert. denied, 814 So.2d 925 (Ala.2001).

Thus, the State was required to prove that Lansdell acted intentionally or recklessly to terrorize Jones by threatening to “blow up” Jones’s house, and that Jones was, in fact, frightened by Lansdell’s threat. See § 13A-10-15(a)(l)a., Ala.Code 1975.

As this Court has stated:

“[Bjecause intent is a state of mind, it is rarely susceptible of direct or positive proof. Instead, the element of intent must usually be inferred from the facts testified to by the witnesses together with the circumstances as developed by the evidence. Seaton v. State, 645 So.2d 341, 343 (Ala.Crim.App.1994) (quoting McCord v. State, 501 So.2d 520, 528-29 (Ala.Crim.App.1986)). Intent ‘ “ ‘may be inferred from the character of the assault, the use of a deadly weapon and other attendant circumstances.’ ” ’ Farrior v. State, 728 So.2d 691, 695 (Ala.Crim.App.1998) (quoting Jones v. State, 591 So.2d 569, 574 (Ala.Crim.App.1991), quoting, in turn, Johnson v. State, 390 So.2d 1160, 1167 (Ala.Crim.App.1980)). Finally, ‘ “[tjhe intent of a defendant at the time of the offense is a jury question.” ’ C.G. v. State, 841 So.2d 281, 291 (Ala.Crim.App.2001), aff'd, 841 So.2d 292 (Ala.2002), quoting Downing v. State, 620 So.2d 983, 985 (Ala.Crim.App.1993).”

Pilley v. State, 930 So.2d 550, 564-65 (Ala.Crim.App.2005).

At the time Lansdell made the threat to “blow up” the Jones house, he was aware that Jones believed Lansdell was responsible for the October 2003 fire resulting in damage to his house and two automobiles. Further, Lansdell had already stated that he wished he had burned up the Jones family that night. Given these circumstances, the jury could reasonably have inferred that Lansdell had made the threat with the intent to cause fear in Jones and his family.

Likewise, the jury could have concluded that, given the circumstances surrounding this incident, Lansdell’s words caused Jones to fear for his safety as well as that of his family. “ ‘[Tjhe law will presume fear’ ” if there is “ ‘just ground for it.’ ” Glover v. State, 393 So.2d 510, 512 (Ala.Crim.App.1981) (quoting 6 Am.Jur.2d Robbery § 22) (discussing fear in the context of robbery). Here, Jones believed that Lansdell had caused the October 2003 fire at his home. He also believed that Lans-dell had stolen a stereo from one of the Joneses’ family cars several months earlier, but he did not want to press charges for fear of retaliation.

Given these circumstances, the trial court did not err in submitting the question of Lansdell’s guilt to the jury.

III.

Lansdell also argues that the trial court’s jury instructions were flawed for two reasons. First, he argues that the trial court erred because the court failed to properly define several of the terms contained in § 13A-10-15. Second, he argues that the trial court erred when it refused to instruct the jury on the offenses of harassment, disorderly conduct, and menacing as lesser-included offenses of making a terrorist threat.

When reviewing a trial court’s jury instructions, this Court keeps in mind the following principles:

“A trial court has broad discretion when formulating its jury instructions. See Williams v. State, 611 So.2d 1119, 1123 (Ala.Cr.App.1992). When reviewing a trial court’s instructions, ‘“the court’s charge must be taken as a whole, and the portions challenged are not to be isolated therefrom or taken out of context, but rather considered together.” ’ Self v. State, 620 So.2d 110, 113 (Ala.Cr.App.1992) (quoting Porter v. State, 520 So.2d 235, 237 (Ala.Cr.App.1987)); see also Beard v. State, 612 So.2d 1335 (Ala.Cr.App.1992); Alexander v. State, 601 So.2d 1130 (Ala.Cr.App.1992).”

Williams v. State, 795 So.2d 753, 780 (Ala.Crim.App.1999), aff'd, 795 So.2d 785 (Ala.2001).

Lansdell claims that the trial court erred because it failed to properly define several of the terms contained in the offense of making a terrorist threat; namely, “any means,” “any crime of violence,” “damage to property,” and “terrorizing.” Initially, we note that, with regard to the terms “any means,” “any crime of violence,” and “damage to property,” Lansdell failed to raise this argument during the trial court’s charge conference, failed to include in his proposed jury instruction the definitions for those terms, and failed to object to the trial court’s instructions on these grounds. Thus, nothing is preserved for our review. See Rule 21.3, Ala.R.Crim.P. Although Lans-dell did present the trial court with a proposed definition for “terrorizing,” the definition presented at trial differs from the one argued to this court on appeal. Therefore, this claim is likewise not preserved for our review. See Jolly v. State, 858 So.2d 305, 309 (Ala.Crim.App.2002) (recognizing the general principle that a “statement of specific grounds of objection to a jury instruction at trial waives all other grounds”).

Even if this claim had been preserved for review, a reversal of Lans-dell’s conviction is not warranted. “When a term is included in a statute relevant to a case, and that term is not defined by statute, whether it is necessary for the trial court to define the term for the jury hinges on the facts of the case.” Ivery v. State, 686 So.2d 495, 501-02 (Ala.Crim.App.), aff'd on return to remand, 686 So.2d 520 (Ala.Crim.App.1996). As used in this case, the terms “any means,” “any crime of violence,” and “damage to property” are terms that could be “understood by the average juror in their common usage.” Thornton v. State, 570 So.2d 762, 772 (Ala.Crim.App.1990). Moreover, Lansdell has failed to show how a definition of these terms could have clarified their meaning to the jury, or that the lack of such definitions contributed to confusion among the jurors as to the meaning of these terms. We note that the only term that might have needed to be defined for the jury was “terrorizing.” However, we note that the trial court’s instructions did, in fact, define the term “terrorize” for the jury. Thus, because this term was properly defined for the jury, no error occurred. See Ward v. State, 610 So.2d 1190, 1194 (Ala.Crim.App.1992).

Lansdell also argues that the trial court erred in refusing to instruct the jury on the offenses of harassment, disorderly conduct, and menacing as lesser-included offenses of making a terrorist threat.

Whether one offense is a lesser-included offense of another is governed by § 13A-l-9(a), Ala.Code 1975, which provides:

“An offense is an included one if:
“(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or
“(2) It consists of an attempt or solicitation to commit the offense charged or to commit a lesser included offense; or
“(3) It is specifically designated by statute as a lesser degree of the offense charged; or
“(4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.”

A defendant is entitled to a charge on a lesser-included offense only if there is any reasonable theory from the evidence to support the charge. Ex parte Smith, 756 So.2d 957, 963 (Ala.2000). As this Court stated in Chambers v. City of Opelika, 698 So.2d 792 (Ala.Crim.App.1996):

“ ‘Where all the elements of an offense separate from the offense charged are present in or are included among elements of [the] charged offense, such separate offense is a lesser included offense for which [the] defendant may be convicted, though acquitted of the offense charged. To be necessarily included in the greater offense, the lesser must be such that it is impossible to commit the greater without first having committed the lesser.’ ”

698 So.2d at 794 (quoting Sharpe v. State, 340 So.2d 885, 887 (Ala.Crim.App.1976) (emphasis added in Chambers)).

Here, Lansdell was charged with violating § 13A-10-15(a)(l)a. Thus, the State was required to prove that Lansdell intentionally or recklessly terrorized another person by threatening another person by threatening to commit any crime or violence or to damage any property.

With these general principles of law in mind, we must now determine whether each of the aforementioned misdemeanor offenses constitutes a lesser-ineluded offense to the offense of making a terrorist threat.

Harassment occurs when a person, “with intent to harass, annoy, or alarm another person”:

“a. Strikes, shoves, kicks, or otherwise touches a person or subjects him or her to physical contact.
“b. Directs abusive or obscene language or makes an obscene gesture towards another person.”

§ 13A-ll-8(a)(l), Ala.Code 1975. Section 13A-ll-8(a)(2) adds: “For purposes of this section, harassment shall include a threat, verbal or nonverbal, made with the intent to carry out the threat, that would cause a reasonable person who is the target of the threat to fear for his or her safety.”

Thus, to be guilty of harassment in the context of making a threat, an individual must threaten another person and intend to carry out that threat. By contrast, no proof that the individual intends to carry out the threat is required for proof of the offense of making a terrorist threat. Likewise, “abusive or obscene language” is not required in order to establish proof of making a terrorist threat. Accordingly, harassment is not a lesser-ineluded offense of the offense of making a terrorist threat. See Cockrell v. State, 890 So.2d 168, 170 (Ala.Crim.App.2003). Therefore, the trial court correctly refused Lansdell’s requested charge.

Disorderly conduct is established when a person, “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof’:

“(1) Engages in fighting or in violent tumultuous or threatening behavior; or
“(2) Makes unreasonable noise; or
“(3) In a public place uses abusive or obscene language or makes an obscene gesture; or
“(4) Without lawful authority, disturbs any lawful assembly or meeting of persons; or
“(5) Obstructs vehicular or pedestrian traffic, or a transportation facility; or
“(6) Congregates with other person in a public place and refuses to comply with a lawful order of the police to disperse.”

§ 13A-ll-7(a), Ala.Code 1975.

Again, to be guilty of disorderly conduct, a person must intend to cause public inconvenience, annoyance, or alarm or to recklessly create a risk of such. No such proof of a public inconvenience, annoyance, or alarm is required to establish the offense of making a terrorist threat. Thus, disorderly conduct is not a lesser-included offense of the offense of making a terrorist threat.

Menacing occurs when a person, “by physical action,” “intentionally places or attempts to place another person in fear of imminent serious physical injury.” § 13A-6-23(a), Ala.Code 1975.

Thus, some physical action is required to establish menacing. However, one may commit the offense of making a terrorist threat without any physical action. Here, it was Lansdell’s oral threat— accompanied by no physical action — that led to the charges against him. “Language, whether abusive or obscene, is not ‘physical action.’” Ex parte N.W., 748 So.2d 190, 193 (Ala.1999). Accordingly, menacing is not a lesser-included offense of the offense of making a terrorist threat. Therefore, based on the facts of this case, the trial court properly refused Lansdell’s requested charge on menacing.

IV.

As part of his claims of error concerning the trial court’s jury instructions, Lansdell appears to challenge the sufficiency of his indictment and/or the court’s instruction regarding that indictment. Specifically, Lansdell claims that although the indictment returned against him charged him with threatening Jones “with intent to terrorize another person,” the court instructed the jury that it could find Lansdell guilty if it concluded that he did so “either intentionally or recklessly.” Accordingly, Lansdell claims, the indictment was “void” because it “failed to charge the requested mental states.”

Because this claim is nonjurisdictional, see Ex parte Seymour, 946 So.2d 536 (Ala.2006), it must be preserved for appellate review. Our examination of the record, however, indicates that Lansdell did not move for a more definite statement of his charge, pursuant to Rule 13.2(e), Ala. R.Crim.P. Likewise, he did not object to the trial court’s instructions on this ground. Given these circumstances, Lans-dell cannot now claim error. Indeed, both this Court and the Alabama Supreme Court have previously rejected similar claims. See, e.g., Sullens v. State, 878 So.2d 1216, 1220-1228 (Ala.Crim.App.2003) (defendants charged with discharging firearm into occupied vehicle not entitled to relief on claim that indictments were defective for failing to allege a culpable mental state because they did not request a more definite statement of the charges and because imperfections in the indictments did not tend to prejudice their substantial rights); Ash v. State, 843 So.2d 213, 217 (Ala.2002) (court’s jury instruction did not materially change indictment by charging that defendant could be found guilty of robbery of either of two victims or both victims, and the indictment charged only that the defendant robbed both victims).

Moreover, we note that the record indicates that Lansdell requested the trial court to instruct the jury that a person commits the crime of making a terrorist threat when he “intentionally or recklessly terrorizes another person,” and the trial court complied with that request. This Court has long held that “[a] party cannot assume inconsistent positions in the trial and appellate courts and, as a general rule, will not be permitted to allege an error in the trial court proceedings which was invited by him or was a natural consequence of his own actions.” Leverett v. State, 462 So.2d 972, 976-77 (Ala.Crim.App.1984). Accord Moody v. State, 888 So.2d 532, 561 (Ala.Crim.App.2003); Burgess v. State, 811 So.2d 557, 596 (Ala.Crim.App.1998); Melson v. State, 775 So.2d 857, 874 (Ala.Crim.App.1999); Campbell v. State, 570 So.2d 1276, 1282 (Ala.Crim.App.1990). Accordingly, no basis for reversal exists as to this claim.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

McMILLAN and WELCH, JJ., concur. BASCHAB, P.J., and SHAW, J., concur in the result.


author: PER CURIAM. MURDOCK, Justice

text:
    Ex parte Brandon Lee LANSDELL. (In re Brandon Lee Lansdell v. State of Alabama).
    1070631.
    Supreme Court of Alabama.
    June 12, 2009.
    Kevin D. Teague, Decatur, for petitioner.
   PER CURIAM.

WRIT DENIED. NO OPINION.

See Rule 39(d)(6), Ala. RApp. P.

COBB, C.J., and LYONS, STUART, and BOLIN, JJ., concur.

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

I concur in this Court’s order denying certiorari review and citing Rule 39(d)(6), Ala. RApp. P. I continue, however, to hold the view I expressed in my similar vote to deny certiorari review in Ex parte Soto, 991 So.2d 691, 697 (Ala.2008) (Murdock, J., concurring specially): “Structurally, syntactically, and grammatically, § 13A-10-15(a), Ala.Code 1975, is nonsensical.”