author: THOMPSON, Presiding Judge. BRYAN, Judge,

text:
    Steve PALMER v. Larry G. BROWNING.
    2080522.
    Court of Civil Appeals of Alabama.
    Sept. 11, 2009.
    Rehearing Denied Oct. 9, 2009.
    John Mark Christensen, Andalusia, for appellant.
    Timothy B. Loggins of The Loggins Firm, LLC, Opp, for appellee.
   THOMPSON, Presiding Judge.

This is the second time these parties have been before this court. In Browning v. Palmer, 4 So.3d 524, 525 (Ala.Civ.App.2008), this court explained the procedural history of the litigation as follows:

“On February 2, 2005, [Larry G.] Browning filed a complaint in the Cov-ington Circuit Court seeking to set aside the December 1, 2003, sheriffs sale of his house and approximately 12.5 acres of real property (‘the property5) to [Steve] Palmer. Browning also sought to quiet title to the property. Palmer answered the complaint, and in August 2005 he added a counterclaim for ejectment. In lieu of a trial, the parties stipulated to the authenticity of numerous documents and submitted stipulated facts to the circuit court.
“On December 20, 2006, the circuit court entered a judgment for Palmer on Browning’s claims. The circuit court also entered a judgment for Palmer on his counterclaim for ejectment, ordered that Browning be ejected from the property, and ordered Browning to pay Palmer ‘the reasonable rental value of the property from December 1, 2003, in the amount of $14,400.’ Browning filed a postjudgment motion under Rule 59, Ala. R. Civ. P. The circuit court denied that motion on April 6, 2007. Browning filed a timely notice of appeal to this court on May 14, 2007. This court transferred the case to our supreme court due to lack of subject-matter jurisdiction; the case was then transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.”

After considering the appeal, this court reversed the judgment in favor of Palmer on Browning’s claims, holding that although the one-year statute of limitations for setting aside a sale under the redemption statute codified at § 6-5-248, Ala. Code 1975, had expired before Browning sought to set aside the sheriffs sale, the facts of the case warranted the application of § 6-9-147, Ala.Code 1975, which allows a court to set aside a judicial sale when it is satisfied that the sale was “ ‘infected with fraud, oppression, irregularity, or error to the injury of either party.’ ” Browning v. Palmer, 4 So.3d at 527 (quoting § 6-9-147). This court also reversed the judgment in favor of Palmer on his counterclaim. Browning v. Palmer, 4 So.3d at 530. Our supreme court denied Palmer’s petition for a writ of certiorari, and on March 21, 2008, this court issued its certificate of judgment in Browning v. Palmer, supra.

Thereafter, Browning moved the circuit court to enter a judgment in compliance with this court’s opinion in Browning v. Palmer, supra. On November 5, 2008, the circuit court entered a detailed judgment in which it declared the sheriffs sale and the sheriffs deed void, vested title of the property in Browning, and set aside its judgment in favor of Palmer on the counterclaim.

On November 25, 2008, Palmer filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P. In his postjudgment motion, Palmer, pursuant to the redemption statute codified at § 6-5-248 or under equitable principles, sought to recover from Browning approximately $3,000, which represented court costs and certain amounts Palmer claimed to have expended on the property at issue. On December 5, 2008, Browning filed a response opposing Palmer’s postjudgment motion.

The circuit court, on December 12, 2008, issued the following order:

“Upon the order of the Alabama Court of Civil Appeals, it is hereby ordered as follows:
“(1) The December 1, 2003, Sheriffs Sale in this case is hereby set aside.
“(2) The prior judgment in this cause in favor of Steve Palmer on his counterclaim against Larry G. Browning is hereby withdrawn and judgment on said counterclaim is hereby entered in favor of Larry G. Browning and against Steve Palmer.”

On March 9, 2009, Palmer filed a notice of appeal to this court. This court transferred the appeal to the Supreme Court of Alabama for lack of appellate jurisdiction. The appeal was transferred back to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

As an initial matter, we must consider whether the appeal was timely filed and, accordingly, whether this court has jurisdiction to consider the appeal. See Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985) (“The timely filing of a notice of appeal is a jurisdictional act.”). The circuit court entered a judgment in compliance with this court’s opinion in Browning v. Palmer, supra, on November 5, 2008. On November 25, 2008, within the 80 days allowed by Rule 59, Ala. R. Civ. P., Palmer filed a postjudgment motion. Thereafter, the trial court entered its December 12, 2008, order; that order does not specifically reference the postjudgment motion.

In his statement of jurisdiction contained in his brief on appeal, Palmer contends that the circuit court did not rule on his November 25, 2008, postjudgment motion. Palmer asserts that in entering the December 12, 2008, order, the circuit court “apparently forgot” that it had entered the earlier, November 5, 2008, order, and he asserts that the December 12, 2008, order had no effect. In his statement of jurisdiction submitted to this court, Browning states that he had no explanation for the December 12, 2008, order, “unless it is considered a denial of Palmer’s [post-judgment] motion.”

Palmer has taken the position that the circuit court’s December 12, 2008, order was not entered in response to his November 25, 2008, postjudgment motion and that, instead, the November 25, 2008, post-judgment motion was denied by operation of law on February 28, 2009, 90 days after the filing of the postjudgment motion. See Rule 59.1, Ala. R. Civ. P. (“No post-judgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days.”); and Robbins v. Robbins, 945 So.2d 1070, 1072 (Ala.Civ.App.2006) (A postjudgment motion was deemed denied by operation of law when the circuit court failed to rule on it within the 90 days allowed by Rule 59.1, Ala. R. Civ. P.). According to Palmer, he had 42 days from February 23, 2009, or until April 6, 2009, to file a timely notice of appeal. Rule 4(a)(1), Ala. R.App. P.; Robbins v. Robbins, 945 So.2d at 1072 (“The former husband had 42 days from the date that his postjudgment motion was denied by operation of law to file a notice of appeal.”). Thus, Palmer contends that his March 9, 2009, notice of appeal, was timely filed.

However, we have carefully considered the matter, and we can find no explanation for the circuit court’s entry of the December 12, 2008, order other than that it was entered in response to Palmer’s post-judgment motion. The December 12, 2008, order contained, albeit in a more concise format, the same ruling as that set forth in the original, November 5, 2008, judgment. The December 12, 2008, order was entered after Palmer had filed his November 25, 2008, postjudgment motion and after Browning had filed his December 5, 2008, response opposing the post-judgment motion. Both of the trial court’s rulings are contained in written orders in the record, and both are entered, in detail, on the State Judicial Information System (“SJIS”). Thus, we cannot agree with Palmer that the circuit court “apparently forgot” that it had entered the November 5, 2008, judgment.

The December 12, 2008, order did not grant the relief requested by Palmer in his postjudgment motion; therefore, it constituted a denial of that motion. In order to invoke appellate jurisdiction, Palmer was required to file his notice of appeal within 42 days of the entry of the December 12, 2008, order. Rule 4(a)(1), Ala. R.App. P.; Robbins v. Robbins, supra. The last date upon which Palmer could have timely appealed was January 23, 2009. Palmer filed his notice of appeal on March 9, 2009, and, therefore, the appeal is untimely. “[A]n untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived.” Parker v. Parker, 946 So.2d 480, 485 (Ala.Civ.App.2006). Because Palmer’s appeal was untimely, this court has no jurisdiction, and the appeal must be dismissed. Rule 2(a)(1), Ala. R.App. P.

Browning’s request for an award of a $1,500 attorney fee is denied.

APPEAL DISMISSED.

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

BRYAN, J., dissents, with writing.

BRYAN, Judge,

dissenting.

I disagree with the main opinion’s conclusion that the trial court’s December 12, 2008, order constituted a denial of Steve Palmer’s postjudgment motion, because, in my opinion, that order did not indicate an intent to adjudicate Palmer’s post-judgment motion. See Rule 58(b), Ala. R. Civ. P. Therefore, in my opinion, the appeal was timely filed, and we should reach the merits of the appeal. Consequently, I respectfully dissent.

      . The November 5, 2008, entry on the SJIS reads:
      "ORDER; The Sheriff’s sale held 12/1/03, whereby the Deft, Steve Palmer, purchased the Pltf, Larry G. Browning’s, real estate is void, set aside and held for naught. The deed executed by the Sheriff of Covington County, Alabama, Real Property Book 2003, Page 25706, is void, set aside and held for naught and that title to said real estate is divested out of the Deft, Steve Palmer, and vested in the Pltf, Larry G. Browning. The circuit clerk shall within 30 days from the Date hereof file a certified copy of this judgment in the Office of the Judge or Probate of Covington County, Alabama, and the Judge of Probate shall index said judgment under Steve Palmer as grant- or and Larry G. Browning as grantee with costs taxed to the Deft, Steve Palmer. The judgment on the counterclaim in favor of the Deft, Steve Palmer, is reversed and rendered for the Pltf, Larry G. Browning. The costs are taxed against the Deft, Steve Palmer, as provided by Rule 35, Alabama Rules of Appellate Procedure, for which let execution issue.”
      The SJIS entry for the December 12, 2008, order is an exact copy of the written order, which is quoted earlier in this opinion.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Mark ARMSTRONG v. MAZDA MOTOR OF AMERICA, INC., d/b/a Mazda North American Operations. Mazda Motor of America, Inc., d/b/a Mazda North American Operations v. Mark Armstrong.
    2071157.
    Court of Civil Appeals of Alabama.
    Oct. 2, 2009.

      Jon E. Lewis of Lewis, Feldman, Le-hane & McAtee, Birmingham, for appellant/cross-appellee Mark Armstrong.
    Joe C. Cassady, Sr., of Cassady & Cas-sady, Enterprise; and Bruce S. Terlep of Swanson, Martin & Bell, LLP, Lisle, Illinois, for appellee/cross-appellant Mazda Motor of America, Inc., d/b/a Mazda North American Operations.
   MOORE, Judge.

On December 31, 2001, Mark Armstrong purchased a 2002 Mazda Protégé automobile from Mitchell Motors, an authorized dealer of Mazda products. Armstrong paid $18,806.97 for the vehicle, which was covered by a “New Vehicle 36-month/50, 000 Mile Limited Warranty” that contained the following express warranty provision:

“Mazda [North American Operations] warrants that your new Mazda Vehicle is free from defects in material or workmanship, subject to the following terms and conditions. A Mazda Dealer will make necessary repairs, using new or remanufactured parts, to correct any problem covered by this warranty without charge to you.”

After discovering that, on long trips in hot weather, the air-conditioning system in the vehicle sometimes blew hot air or “fog,” Armstrong returned the vehicle to Mitchell Motors for repairs on several occasions in 2002 and 2003, during the warranty period. In accordance with the express warranty, Mitchell Motors attempted to correct the air-conditioning problem at no cost to Armstrong, but it was unable to do so to Armstrong’s satisfaction.

On December 23, 2003, Armstrong sued Mazda Motor of America, Inc., d/b/a Mazda North American Operations (“Mazda”), asserting claims of breach of express warranty under the Alabama Commercial Code and under 15 U.S.C. § 2310(d)(1)(A), a part of the “Magnuson-Moss Warranty-Federal Trade Commission Act” (hereinafter referred to as “the Magnuson-Moss Warranty Act”).

At a jury trial in December 2007, Armstrong presented only the following testimony on the issue of damages:

“Q. What’s your opinion [as to the value of the vehicle]?
“A: My opinion is that it was worth the amount of money I paid for it assuming that the air conditioner was working. And I wouldn’t give you anything for a car that was brand new for an air conditioner that didn’t work.
“Q: Are you saying the car has no value?
“A: I’m saying that with an automobile — with a new automobile with an air conditioner that doesn’t work, that it has little to no value to me since I purchased it with one that was supposed to be working.”

Armstrong admittedly had no out-of-pocket expenses and he did not seek to recover consequential damages, which were excluded from coverage by the terms of the express warranty. Armstrong also testified that he had paid finance charges totaling $2,500 in connection with his purchase of the Mazda vehicle.

On December 5, 2007, the jury returned a verdict in favor of Armstrong awarding him $2,500 in compensatory damages. The trial court entered a judgment on the jury’s verdict and allowed Armstrong 30 days to seek an award of attorney fees. Armstrong then filed a motion, as the prevailing party, to recover attorney fees and costs, pursuant to 15 U.S.C. § 2310(d)(2). In his motion, he sought a total of $35,508.75 in attorney fees and a total of $3,780.22 as costs. On August 11, 2008, the trial court entered a judgment on the jury’s verdict, awarding Armstrong $2,500 in damages, and1 awarding Armstrong $2,500 in attorney fees and $2,847.94 in costs. Mazda filed a postjudgment motion seeking a judgment as a matter of law or, in the alternative, a new trial; the trial court denied that motion.

Armstrong timely appealed. On appeal, Armstrong argues that the trial court exceeded its discretion in its award of attorney fees and costs. Mazda cross-appealed. Mazda argues that the trial court erred in denying its motion for a new trial. Specifically, Mazda argues that it is entitled to a new trial because, it says, the evidence does not support the award of damages to Armstrong. Because the resolution of Mazda’s cross-appeal potentially disposes of all the issues raised by the parties, we address the cross-appeal first.

Under Aabama law, “ ‘ “[j]ury verdicts are presumed correct, and this presumption is strengthened by the trial court’s denial of a motion for a new trial. Therefore, a judgment based on a jury verdict will not be reversed unless it is ‘plainly and palpably’ wrong.” ’ ” Petty-Fitzmaurice v. Steen, 871 So.2d 771, 773 (Ala.2003) (quoting Tanksley v. Alabama Gas Corp., 568 So.2d 731, 734 (Ala.1990), quoting in turn Davis v. Ulin, 545 So.2d 14, 15 (Ala.1989)). A jury is vested with a large measure of discretion in awarding damages and a judgment entered on a jury’s verdict should not be reversed “unless ... the verdict is wholly inconsistent” with the evidence. Stinson v. Acme Propane Gas Co., 391 So.2d 659, 661 (Ala.1980). Based on that standard, “ ‘[wjhere, ... the jury verdict cannot be justified upon any reasonable hypothesis presented by the evidence, it ought to be set aside upon proper proceedings as being the result of compromise or mistake.’ ” Ferguson v. Cadle Co., 816 So.2d 473, 476 (Ala.2001) (quoting Donavan v. Fandrich, 265 Ala. 439, 440, 92 So.2d 1, 2 (1957)); see also Parsons v. Aaron, 849 So.2d 932, 949 (Ala.2002) (“[Djamages may not be awarded where they are remote or speculative. A jury must have some reasonable basis for the amount of its award.”); and Systrends, Inc. v. Group 8760, LLC, 959 So.2d 1052, 1079 (Ala.2006) (concluding that the trial court erred in denying the defendant’s motion for a new trial because there was no evidentiary basis from which the jury could have quantified the plaintiffs damages in monetary terms).

With certain exceptions not applicable here, § 7-2-714(2), Ala.Code 1975, provides that “[t]he measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted.” The trial court charged the jury on that measure of damages and neither party raised any objection to that instruction. Thus, the jury was obligated to apply this instruction to the evidence in determining its award of damages for breach of express warranty. See Chandler v. Virciglio, 997 So.2d 304, 308 (Ala.Civ.App.2008) (stating the well-recognized principle that unchallenged jury instructions, even where erroneous, become the law of the case and that a jury is bound to follow such instructions).

Armstrong presented evidence establishing the purchase price of the vehicle, $18,806.97, which established the value of the vehicle at the time of acceptance if the vehicle had been as warranted. See, e.g., Thompson Chrysler-Plymouth, Inc. v. Myers, 48 Ala.App. 350, 264 So.2d 893 (Civ.App.1972) (recognizing that the purchase price of personal property is admissible to show the value of such property at the time and place of purchase). As for the value of the vehicle as accepted, i.e., with the damaged air-conditioning system, Armstrong presented only his testimony that the vehicle was worthless to him in that condition. See, e.g., Harlan v. Smith, 507 So.2d 943 (Ala.Civ.App.1986) (the purchaser-occupant’s opinion as to the value of his mobile home constituted sufficient legal evidence to establish the value of that mobile home). Thus, if the jury accepted Armstrong’s testimony, it should have awarded him $18,806.97, not $2,500.

On the other hand, if the jury rejected Armstrong’s testimony, it would have had no basis for awarding him $2,500. The only mention of that figure pertained to the finance charges incurred by Armstrong over the life of his purchase contract. However, the amount of finance changes does not relate to the difference in the value of the vehicle as warranted and its value at the time of acceptance, which is the applicable measure of damages. The jury could not have legitimately based its verdict on the amount of finance charges Armstrong paid. Thus, the verdict appears to be without evidentiary basis.

In Razor v. Hyundai Motor America, 222 Ill.2d 75, 305 Ill.Dec. 15, 854 N.E.2d 607 (2006), a case we find persuasive on the issue under consideration, Razor purchased a new Hyundai automobile from a dealer and received a new-car warranty from Hyundai. 222 Ill.2d at 79, 305 Ill. Dec. 15, 854 N.E.2d at 611. Shortly thereafter, Razor began complaining that the automobile would not start on occasion. 222 Ill.2d at 79-80, 305 Ill.Dec. 15, 854 N.E.2d at 611-12. When the dealer was unable to repair the automobile to Razor’s satisfaction, Razor sued Hyundai, asserting breach-of-warranty claims pursuant to the Magnuson-Moss Warranty Act and pursuant to Illinois’s Commercial Code. 222 Ill.2d at 80-81, 305 Ill.Dec. 15, 854 N.E.2d at 612.

At trial, Razor presented a copy of her purchase contract and established the purchase price for the automobile; however, the trial court would not allow Razor to give her opinion as to the decrease in the automobile’s value as a result of the alleged defects. 222 Ill.2d at 81-82, 305 Ill.Dec. 15, 854 N.E.2d at 612-13. Razor was only allowed to opine that the automobile had “proven unreliable” and that “given the problems that this vehicle — that I have had with this vehicle or the problems the vehicle has had, that’s like a used car. I would not pay that for a new car with used problems as it were.” 222 Ill.2d at 82, 305 Ill.Dec. 15, 854 N.E.2d at 612-13. Razor offered no other evidence of damages. At the time of the trial, she was still driving the automobile. 222 Ill.2d at 82, 305 Ill.Dec. 15, 854 N.E.2d at 613. The jury awarded Razor $5,000 on her breach-of-warranty claim for the diminished value of the automobile. 222 Ill.2d at 83, 305 Ill.Dec. 15, 854 N.E.2d at 613. Hyundai appealed, arguing, among other things, that the evidence was insufficient to support the jury’s award of damages on the breach-of-warranty claim. 222 Ill.2d at 84, 305 Ill.Dec. 15, 854 N.E.2d at 614.

On appeal, the Illinois Supreme Court reversed the jury’s verdict, concluding that the jury had heard insufficient evidence on the issue of damages:

“In this case there was no sufficient basis for the jury’s $5,000 award. There was no documentary evidence submitted on the damages question, nor was there expert testimony. The only possible evidence of how much the vehicle’s value decreased is plaintiffs testimony, and plaintiffs only testimony which touches on the subject was that she would not today pay the pi'ice she had originally paid for the vehicle, because ‘given the problems that this vehicle — that I have had with this vehicle or the problems the vehicle has had, that’s like a used car. I would not pay that for a new car with used problems as it were.’ There is simply no way for the jury to get from this testimony to a $5,000 award without engaging in speculation and conjecture. ‘ “[I]n proving damages, the burden is on the plaintiff to establish a reasonable basis for computing damages.” ’ Snelson v. Kamm, 204 Ill.2d 1, 33, 272 Ill.Dec. 610, 787 N.E.2d 796 (2003), quoting Gill v. Foster, 157 Ill.2d 304, 313, 193 Ill.Dec. 157, 626 N.E.2d 190 (1993). In this case, plaintiff failed to do so.
“Plaintiff notes that the price of the car was also entered into evidence and suggests that jurors have sufficient familiarity with cars and breakdowns that they ought to be permitted to determine for themselves how much a car’s value would be diminished by events of the type which occurred in this case. Plaintiff cites a number of cases which suggest that damages may be proven in any manner which is ‘reasonable,’ and also notes that our appellate court has held that ‘[wjhere the right of recovery exists the defendant cannot escape liability because the damages are difficult to prove.’ Burrus v. Itek Corp., 46 Ill. App.3d 350, 357, 4 Ill.Dec. 793, 360 N.E.2d 1168 (1977).
“We agree that damages may be proven in any reasonable manner, as a general proposition of law ... but this begs the question whether damages were proven in a reasonable manner in this case. The answer is clearly no. Although jurors are not required to check their common sense at the courtroom door ..., we are not prepared to endorse the proposition that jurors are as a class sufficiently familiar with automobiles as to be able to determine the degree of diminution of a particular vehicle’s value based on a particular defect without the need for any evidence at all. This is more than a matter of simple common sense. Plaintiff testified, in essence, that ‘It wasn’t worth what I paid for it.’ There was no number presented, nothing for the jury to work from.
“... [Assuming that plaintiff suffered some damage, there must be some basis for a jury’s damage award, and we can see no process other than speculation by which the jury could have translated the evidence presented by plaintiff to an award of $5,000. We note that even in Bums, itself a [Uniform Commercial Code] case in which a dissatisfied buyer was attempting to recover for the value of defective goods, the record included ‘testimony as to ‘the actual value of the defective [goods] at time of acceptance.’ Bumis, 46 Ill.App.3d at 357, 4 Ill.Dec. 793, 360 N.E.2d 1168. In this case, by contrast, there is nothing, truly not a scintilla of evidence to support any particular verdict at which the jury might have arrived — much less the suspiciously round number of $5,000.”

Razor, 222 Ill.2d at 107-09, 305 Ill.Dec. 15, 854 N.E.2d at 626-27. Because the jury’s verdict could not be supported by the evidence, the Illinois Supreme Court reversed the judgment entered on that verdict and remanded the cause for a new trial. 222 Ill.2d at 110, 305 Ill.Dec. 15, 854 N.E.2d at 628.

Although the quality of the evidence provided to the jury in this case was slightly higher than that provided in the Razor case, the result is the same. In this case, the jury received no evidence from which it could have concluded that, at the time of acceptance, as a result of the defective airconditioning system, the vehicle was worth $2,500 less than as warranted. Consequently, the jury’s award of $2,500 in damages must have resulted from compromise, speculation, or conjecture. Because the jury’s award of damages in this case is unsupported by the evidence, the judgment entered by the trial court is plainly and palpably wrong and the trial court erred in denying Mazda’s motion for a new trial. See Petty-Fitzmaurice v. Steen, 871 So.2d at 773. We, therefore, reverse the judgment entered by the trial court on the jury’s verdict and remand the cause for a new trial.

Because the new trial may yield different results and affect the award of costs and attorney fees, we find that the issues raised by Armstrong are not ripe for our consideration and we therefore dismiss his appeal; however, we do not intend for any language in this opinion to be construed in any manner as commenting on either the propriety of the award of costs and the propriety of the award of attorney fees or the correctness of the amounts of those awards.

APPEAL — DISMISSED.

CROSS-APPEAL — REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Armstrong also asserted claims of breach of implied warranty, negligence, misrepresentation, revocation of acceptance, and a violation of Ala.Code 1975, § 8-20A-1 et seq., known as the “Alabama Motor Vehicle Lemon Law Rights Act.” The trial court entered a judgment as a matter of law as to those claims. Armstrong does not appeal that judgment.

      . Armstrong argues that the jury heard evidence as to the purchase price of the vehicle, the current mileage and age of the vehicle, the "contract," and the bill of sale. Consideration of those items, however, offered no assistance to the jury in calculating the value of the vehicle as accepted.


author: THOMAS, Judge.

text:
    Christopher KLINGER v. Sean ROS and Al Ros.
    2080285.
    Court of Civil Appeals of Alabama.
    Oct. 2, 2009.

      Linda L. Howard of Murchison & Howard, L.L.C., Foley, for appellant.
    J. Byron Brackin III of Brackin, MeGriff & Johnson, P.C., Foley, for appel-lees.
   THOMAS, Judge.

Christopher Klinger, Sean Ros, and A1 Ros formed, and are the sole shareholders and board of directors of, Automated Check Recovery, Inc. (“ACR”). Sean Ros became ACR’s president, and he oversaw the day-to-day operations of ACR. ACR did not prove profitable, and the Roses desired to sell its main asset — its customer list — and proposed a method of disbursing the proceeds from that sale. Klinger, however, disagreed with the sale and the proposed distribution of the proceeds of the sale. On December 15, 2006, at a corporate meeting that Klinger did not attend, the Roses approved the sale of the customer list to another company and the distribution of the proceeds from the sale.

In January 2007, Klinger filed an action under the Declaratory Judgments Act, Ala.Code 1975, § 6-6-220 et seq., against the Roses, seeking a declaration that ACR was a partnership by implication or, in the alternative, that the trial court determine the rights and liabilities of the parties in and to the assets of ACR; in his complaint, Klinger alleged that Sean Ros had failed in his fiduciary duty to ACR. The Roses answered the complaint and also filed a counterclaim seeking damages pursuant to the Alabama Litigation Accountability Act (“ALAA”), codified at Ala.Code 1975, § 12-19-270 et seq. The Roses moved for a summary judgment on December 12, 2007, and Klinger responded on January 25, 2008. On January 30, 2008, the trial court entered a partial summary judgment in favor of the Roses only as to Klinger’s request that the trial court declare ACR a partnership.

After further discovery, the Roses, on April 10, 2008, again moved for a summary judgment on Klinger’s second claim, which sought a declaration of the rights and liabilities of the parties to ACR’s assets and alleged a breach of fiduciary duty by Sean Ros. Klinger responded on April 18, 2008. The trial court entered the following judgment on May 27, 2008: “MOTION FOR SUMMARY JUDGMENT PURSUANT TO RULE 56 ... is hereby GRANTED.” (Capitalization in original.)

The following day, May 28, 2008, the Roses filed a motion for a hearing on their ALAA claim. That motion was not a post-judgment motion directed toward the May 27, 2008, judgment, because it did not request that the trial court amend, alter, or vacate its summary-judgment order; it also did not include a request that the trial court reserve jurisdiction to consider the Roses’ ALAA claim. The trial court granted the Roses’ motion, and it set a hearing for July 29, 2008, on the ALAA claim. After an agreed-upon continuance of the July 29, 2008, hearing, the trial court took testimony and heard arguments on the ALAA claim on September 4, 2008.

The trial court entered a judgment against Klinger on the Roses’ ALAA claim on October 10, 2008; however, the judgment failed to specify an amount of the award or otherwise comply with the ALAA. The Roses filed a postjudgment motion, requesting that the trial court specify the amount of the award under the ALAA, which the trial court granted; on November 18, 2008, the trial court entered a judgment awarding the Roses $21,665.18 pursuant to the ALAA. Klinger filed his notice of appeal on December 22, 2008.

Although neither party has raised the issue of this court’s jurisdiction over this appeal, we will first consider whether we have jurisdiction over this appeal because, as has often been stated, “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero viotu.” Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987). Our supreme court has held that, when a trial court enters an otherwise final judgment on the merits of a case but fails to address a pending ALAA claim or to reserve jurisdiction to later consider that claim, the ALAA claim is implicitly denied by the judgment on the merits. Gonzalez, LLC v. DiVincenti, 844 So.2d 1196, 1202 (Ala.2002). As we explained in Casey v. McConnell, 975 So.2d 384, 388-89 (Ala.Civ.App.2007):

“The ALAA provides that the court must award attorney fees and costs as a part of its judgment on the merits of the case; it does not create a new or separate cause of action that can be brought after a case is litigated and given a final adjudication on the merits. Ala.Code 1975, § 12-19-270; Gonzalez, LLC v. DiVincenti, 844 So.2d 1196, 1201 (Ala. 2002). The language of the ALAA allows the trial court to consider the outcome of proceedings when making its determination as to whether a party’s action was without substantial justification. Ala.Code 1975, § 12-19-273(7); Gonzalez, 844 So.2d at 1201; and Meek v. Diversified Prods. Corp., 575 So.2d 1100, 1103 (Ala.1991). Thus, the trial court can hold a separate hearing on an ALAA claim after the entry of a final judgment on the merits provided that the trial court specifically reserves jurisdiction to hear the ALAA claim. Gonzalez, 844 So.2d at 1201. Otherwise, a judgment that does not reserve jurisdiction to hear the ALAA claim at a later date puts an end to all controversies at issue, including the ALAA claim. Gonzalez, 844 So.2d at 1201-02; see also Baker v. Williams Bros., Inc., 601 So.2d 110, 112 (Ala.Civ.App.1992).”

To prevent the implied denial of an ALAA claim, a party may timely file a post-judgment motion directed to the judgment on the merits seeking the reservation of jurisdiction to hear the ALAA claim; if that motion is granted and the trial court reserves jurisdiction over the ALAA claim pursuant to the amended judgment, the claim survives. Casey, 975 So.2d at 389.

The trial court’s May 27, 2008, summary judgment in favor of the Roses does not specifically reserve jurisdiction to rule on the Roses’ ALAA claim. The Roses’ May 28, 2008, motion did not seek an amendment to, an alteration of, or a vacation of the May 27, 2008, judgment; however, even if it could be implied that the motion had sought a reservation of jurisdiction over the ALAA claim, the trial court did not set aside its May 27, 2008, judgment or enter an amended judgment reserving jurisdiction over the ALAA claim within 90 days of the filing of that motion and, thus, the motion would have been deemed denied by operation of law. See Rule 59.1, Ala. R. Civ. P.; Liberty Mut. Ins. Co. v. Greenway Enters., Inc., 23 So.3d 52, 56 (Ala.Civ.App.2009) (stating that “even if ... a request [to amend the summary-judgment order to reserve jurisdiction to address and ALAA claim] could be implied, that request was denied by operation of law by the trial court’s failure to rule on the motion within 90 days from its filing”). Thus, the trial court’s November 18, 2008, judgment awarding the Roses $21,665.18 pursuant to the ALAA is a void judgment, see Ex parte Citizens Bank, 879 So.2d 535, 540 (Ala.2003) (declaring void a judgment awarding attorney fees based on an ALAA claim when the trial court had entered an earlier judgment on the merits without reserving jurisdiction over the ALAA claim), and a void judgment will not support an appeal. Malone v. Malone, 854 So.2d 109, 113 (Ma.Civ.App.2003) (dismissing an appeal from a judgment purporting to award attorney fees pursuant to the ALAA that was entered five months after the entry of a summary judgment because the trial court had failed to reserve jurisdiction to consider the ALAA claim in the summary-judgment order).

Klinger’s arguments on appeal concern the May 27, 2008, summary judgment in favor of the Roses on his claims. However, because the summary judgment was a final judgment when it was entered on May 27, 2008, despite the fact that the trial court did not address the ALAA claim, see McGough v. G & A, Inc., 999 So.2d 898, 903 (Ala.Civ.App.2007), Klinger’s December 22, 2008, notice of appeal, filed more than six months after the entry of the May 27, 2008, summary judgment, is untimely. See Rule 4(a)(1), Aa. RApp. P. (prescribing a 42-day period for taking an appeal). We dismiss Klinger’s appeal on that ground as well. See Holmes v. Powell, 363 So.2d 760, 762 (Ala.1978) (“A timely filing of the notice of appeal is jurisdictional, ... the sanction to be applied for an untimely filing being dismissal.”).

The Roses’ request for an attorney fee on appeal is denied.

APPEAL DISMISSED.

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

      . The ALAA requires that an order awarding attorney fees under the ALAA contain specific findings that the underlying action was brought without substantial justification, and the order must enumerate the grounds and evidentiary support for such a finding. See Pacific Enters. Oil Co. (USA) v. Howell Petroleum Corp., 614 So.2d 409, 418 (Ala.1993).


author: BASCHAB, Presiding Judge. PER CURIAM. BASCHAB, Presiding Judge,

text:
    Ren Hawkins BROOKS v. STATE of Alabama.
    CR-05-2384.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 2007.
    Opinion on Return to Remand June 27, 2008.
    Rehearing Denied Aug. 15, 2008.
    Certiorari Denied Oct. 9, 2009 Alabama Supreme Court 1071633.

      Jeffrey B. Austin, Florence, for appellant.
    Troy King, atty. gen., and Marc S. Bass, asst. atty. gen., for appellee.
   BASCHAB, Presiding Judge.

The appellant, Ren Hawkins Brooks, was convicted of two counts of first-degree sodomy, violations of § 13A-6-63(a)(3), Ala.Code 1975, and one count of first-degree sexual abuse, a violation of § 13A-6-66(a)(3), Ala.Code 1975. The trial court sentenced him to serve concurrent terms of twenty-five years in prison on the first-degree sodomy convictions and ten years in prison on the first-degree sexual-abuse conviction. The appellant filed a motion for a new trial, which the trial court summarily denied. This appeal followed.

The State presented evidence that the victim, H.F., was the appellant’s stepdaughter; that, when the victim was eight years old, the appellant touched her on her “private areas”; that, when the victim was about nine years old, the appellant started performing oral sex on her; and that, on a couple of occasions, the appellant made the victim perform oral sex on him. (R. 185.)

The appellant argues that the trial court erred when it refused to conduct an in camera review of the victim’s records from the Children’s Advocacy Center and Rape Response, Inc. He filed motions to compel the Children’s Advocacy Center and Rape Response to provide him with the victim’s counseling records. During the hearing on the appellant’s initial motion, the following occurred:

“[DEFENSE COUNSEL]: Motion to compel the production of the counseling records. I think that’s where we are on that. We have a copy of the — if you’re wanting to talk about the motion in li-mine to exclude the recorded statements, there’s just a problem as to the original on the victim’s recorded statement. I don’t know which motion.
“THE COURT: Well let’s just talk about the records of counselors at Children’s Advocacy Center and/or Rape Response in various places. You have asked for both of those, correct?
“[DEFENSE COUNSEL]: Yes, Judge, and Joe Patterson appeared on behalf of Children’s Advocacy Center this morning. I had Lee Nafe subpoenaed and you had extended that subpoena and instructed her to be here today. I have not heard from her. I had talked to her office either early yesterday morning or late Monday, I can’t remember, and asked them to remind her to be here. Your office has advised me that she’s called you and told you she’s snowed in somewhere. She hasn’t called me. She called Lindsey late yesterday afternoon and told Lindsey that but Lindsey told her we could not excuse her but we understand her plight.
“THE COURT: Well at any rate she is a counselor?
“[DEFENSE COUNSEL]: Right. My understanding from Mr. Patterson’s representation in there in chambers with you, Judge, is that his position is they should submit those for in camera inspection.
“[PROSECUTOR]: That’s not the State’s position, Judge.
“THE COURT: Well tell me how you get around Section 34-8A-21, Section 15-23-42 and Rule 503?
“[DEFENSE COUNSEL]: Judge, those are not absolute privileges. Those make the records privileged unless or until the Defendant’s constitutional right asserts that privilege or until the victim or someone on her behalf waives that privilege in this case and if Lee Nafe were here to testify pursuant to her subpoena — she was ordered to be here — the information I would go into would be that my evidence I would expect to be that that counseling largely was to prepare her for trial, that that was — she went to a couple of counseling sessions. Then they quit counseling and they requested counseling to ‘get her ready for trial’ or something to that effect. If there is anything of that nature going on in those counseling sessions, we’re entitled to it.
“Again if — there is an absolute — the Defendant has reason to believe based on the prior inconsistent statements and the prior exculpatory statements, not just inconsistencies but absolutely statements where the victim has denied the actions, denied the allegation or recanted the allegation or said this act didn’t happen. Based on those statements the Defendant has an absolute reason to believe that those counseling records would contain that same information and if so, that information is exculpatory and that would require an in-camera review.
“I’m looking at [Department of Human Resources] records that show the victim said when questioned about the mouth touching her, she stated that he never put his mouth on her. She stated it once. She’s likely stated it again and we’re being denied records or we’re being denied you even looking at the records to even see if she said it.
“THE COURT: Well based on the clear law, the clear statutes, clear rule the—
“[DEFENSE COUNSEL]: Judge, one more basis may I say? If the State — there was some discussion by the State. [The prosecutor] represented to me a week ago that he may very well call Lee Nafe as an expert. If he intends to call any of these counselors as an expert or intends to question them at all, then I believe that opens the door to the counseling records or at least to your reviewing them because I have a right to discover anything they have reviewed in rendering an opinion in the case.
“THE COURT: That opens up a different question but at this time where we are at this point in discovery, the counseling records or the counseling sessions, the interviews will not be provided because they are clearly privileged. All right. Still in the supplemental discovery request—
“[DEFENSE COUNSEL]: Judge, you’re denying the request for in camera inspection even though the Children’s Advocacy Center lawyer told the Court he would submit the records for inspection?
“THE COURT: I am. I am. Privilege is privilege.
“[DEFENSE COUNSEL]: Does that same ruling apply to Rape Response?
“THE COURT: Rape Response. My understanding is they are counselors under the statute and under the rule. Now if you want to try to present evidence that they’re not counselors, they don’t fall under that rule, I will be glad to hear that.
“[DEFENSE COUNSEL]: I would like to take the witness at least on voir dire to that issue as to what role, if they were conducting a forensic interview or providing counseling services or what. I’m taking their word that this was counseling.
“THE COURT: All right.
“[DEFENSE COUNSEL]: Well Lee Nafe did not show pursuant to my subpoena so I reserve the right to ask that—
“THE COURT: I will take judicial notice that she’s a counselor. There’s no question about that, is there?
“[DEFENSE COUNSEL]: Well, Judge, she conducts forensic interviews when Monica Haddock is not available to and for the same agency that conducted the forensic interview in this case so I think it’s a fine line there between separating and bifurcating our records when it serves our purpose so I think there’s a real issue there.”

(R. 21-26.)

Thereafter, defense counsel called Debbie Young, the executive director of Shoals Crisis Center and Rape Response. Young testified that Rape Response did not provide counseling services for the victim; that it provided referral services to its clients; that it did not conduct a forensic interview with the victim; that it was likely that someone with Rape Response had talked to the victim or someone in her family on the telephone; and that that was not a true counseling session. She also testified that Rape Response was opposed to producing the records because it considered conversations with its clients to be confidential; that people who telephoned the crisis line expected confidentiality; and that turning over its records could hurt the clients emotionally. Finally, Young testified that a victim services coordinator worked for her; that the coordinator provided personal advocacy to the victim; and that, in some cases, the coordinator would talk to victims, go to the hospital with them, refer them, and go to court with them. After Young testified, the following occurred:

“[DEFENSE COUNSEL]: I would move that you at least conduct an in camera inspection of those.
“THE COURT: [Prosecutor]?
“[PROSECUTOR]: I think it’s a fishing expedition, Judge.
“THE COURT: All right. Motion to quash is granted. Thank you.
“[DEFENSE COUNSEL]: Judge, may I please ask the Court to state the grounds? You clearly had previously denied on the basis of the statute and that privilege clearly does not apply. You had said that your grounds were clearly that they were privileged. They clearly are not privileged based on that testimony.
“THE COURT: Now these two grounds, the confidentiality of conversations between victims and people in the position of Rape Response and the lack of a showing of any probative value.
“[DEFENSE COUNSEL]: Judge, with respect to the lack of any probative value, this court has in the court file and you have reviewed the DHR records with the statement in there that is absolutely contradictory to the allegations in this case, and there is absolutely sufficient basis for belief that she would have made similar statements to other people in other interviews.”

(R. 29-30.)

We addressed a similar situation in D.P. v. State, 850 So.2d 370, 371-75 (Ala.Crim.App.2002), as follows:

“The appellant contends that the trial court erred in denying his motion to compel production of T.H.’s mental-health records. The appellant argues that although the records are privileged by § 34-26-2, Ala.Code 1975, they were essential to his attack on T.H.’s credibility and, he says, the trial court’s denial of his motion to compel production of the records denied him the right to confront his accuser.
“Before trial, the appellant filed a written motion to compel the production of T.H.’s mental-health records. The appellant argued that T.H. had been an outpatient at a mental-health facility approximately six months before the incident giving rise to the present charges occurred and that the records from that treatment may have contained information relevant to his defense of consent. After a hearing, during which T.H. asserted her privilege to keep the records confidential, the trial court denied the motion. The appellant then filed a written motion to reconsider the earlier denial of his motion to compel, and the trial court held another hearing. During that hearing, the following occurred:
“ ‘THE COURT: So, do you [prosecutor] have a position?
“ ‘[Prosecutor]: I do, sir. I would have no objection if the defendant would allow me to subpoena any mental health records and the marriage counsel records, any therapy records, any records from hospitals, inpatient or outpatient since 1995.
“ ‘[Defense counsel]: Judge, they don’t have a Sixth Amendment right to confront the defendant and—
“ ‘THE COURT: Well, but I mean it seems in fairness that you do one, you do the other.
“ ‘[Defense counsel]: Well, Judge, I’m not going to agree to that. That’s—
“ ‘THE COURT: Well, then I’m not going to grant your motion. That’s my discretion.
“ ‘[Defense counsel]: Well, Judge, it’s not unbridled. If I could have [a] second to talk to my client and see what he wants to do.
“ ‘THE COURT: And you say you want to use them to attack her credibility? Well, what do you want to use them for?
“ ‘[Defense counsel]: To attack her credibility, Judge, but again, I haven’t seen the records and without seeing them—
“ ‘THE COURT: Furthermore there is nothing in the records to suggest that DIF [sic], that’s the person who was suffering from an emotional mental defect that would have materially affected the accuracy of his testimony or affected his ability to know and correctly relate the truth to justify — well, you know, I guess I have to look at them, but at this point I’m going to deny your motion. When did you file your motion?
“ ‘[Defense counsel]: Judge, my subpoena was filed probably a month ago. I mean this has just been — I filed my original motion to compel probably three weeks ago and then the clerk set it for last—
“‘THE COURT: When was arraignment? Well, it might be that I should look at them, but at this point I can’t tell. It looks to me like both of you want to use records against each other’s credibility and you can’t concede that she has the right to look at your records and you say it’s a different issue. But I’m going to deny it.’

“(R. 11-14.) The record does not reflect that the trial court ever looked at the records to determine whether they would be helpful to the defense in attacking T.H.’s credibility.

“In addressing an identical issue in Schaefer v. State, 676 So.2d 947 (Ala.Crim.App.1995), this Court stated:

“ ‘The appellant appeals, raising nine issues. However, at this time, we address only the issue whether the trial court committed reversible error in denying the appellant’s motion to produce [the victim’s] psychiatric records and the records pertaining to [the victim] in the files of the Alabama Department of Human Resources. The appellant contends that [the victim] is a “habitual liar” with a history of mental instability and that his records were necessary for purposes of cross-examination to impeach his credibility. The trial court held, and the state now contends, that the records were privileged and that their production for confrontation purposes was prohibited by statute.
“ ‘The records are privileged pursuant to §§ 12-15-100 and -101, 15-23-41 and -42, and 34-26-2. The appellant argues that his Sixth Amendment right of confrontation outweighs the statutory privilege and the victim’s right to confidentiality. A witness’s claim of a statutory privilege may, under certain circumstances, violate a defendant’s Sixth Amendment rights of confrontation and cross-examination. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); United States v. Lindstrom, 698 F.2d 1154 (11th Cir.1983); Ex parte Lynn, 477 So.2d 1385 (Ala.1985); Kirby v. State, 581 So.2d 1136 (Ala.Cr.App. 1990); Thornton v. State, 527 So.2d 143 (Ala.Cr.App.1987), cert. quashed, 527 So.2d 146 (Ala.1988).
“ ‘The issue presented here is whether, under the circumstances of this case, denial of access to the privileged records deprived the appellant of his right of confrontation. We adhere to the principle that the opportunity for cross-examination is central to the right of confrontation. However, this does not mean that records of this type must be disclosed simply because they relate to a key state’s witness whose claimed lack of credibility is the foundation of the defense. There are strong public policy reasons for maintaining the confidentiality of such records. In this state, where a party’s right of discovery has come into conflict with a communication that is the subject of a statutory privilege communication, the courts have decided the issue on the facts of each particular case or, in other words, on a case-by-case basis. Ex parte Rudder, 507 So.2d 411 (Ala.1987); Kirby v. State. The reasons for confidentiality must in each case be weighed against the defendant’s right to bring to the jury’s attention facts affecting the witness’s credibility. Davis v. Alaska. Access to such records must be left to the discretion of the trial court, which is better able to assess the probative value of the evidence contained in the records as it relates to the particular case before the court, and to weigh that value against the interest in the confidentiality of the records. In order to determine whether the records contain exculpatory or impeachment evidence that should be disclosed, the trial court of necessity must examine the records. That examination should be in camera. See Kirby v. State, where we suggested the procedure be used. The trial court should also make specific findings, and the privileged records should be made a part of the trial record for purposes of appeal. In this case, the trial court refused to order the production of the records for an in camera inspection and, thus, no examination was made.
“ We find that there is sufficient evidence in the record to warrant an in camera examination by the trial court of the privileged records for the purpose of discovering whether disclosure of any material relevant to the issue of credibility of the witness is appropriate in this case. We, therefore, remand this cause to the trial court with instructions that that court conduct an in camera examination of the records ... pertaining to [the victim] and to determine if those records contain any exculpatory or impeachment evidence that would bear upon the question of the appellant’s guilt and the credibility of [the victim].’
676 So.2d at 948-49 (brackets and emphasis added). See also Kirby v. State, 581 So.2d 1136 (Ala.Crim.App.1990).
“Similarly, here, we find that an in camera examination by the trial court of the privileged records is warranted in this case to determine whether those records contain any material relevant to the issue of T.H.’s credibility and whether disclosure of these records would have been appropriate in this case. T.H. claimed that the appellant raped her; the appellant’s defense was consent. In his motion to compel production and at the hearing on the motion, the appellant alleged that attacking T.H.’s credibility was an essential part of his defense and that he believed T.H.’s mental-health records contained information relevant to her credibility. Because a central issue in this case was T.H.’s credibility, the trial coux-t’s statement during the second hearing that it should inspect the records before ruling on the appellant’s motion was correct. However, as noted above, nothing in the record indicates that the trial court did, in fact, inspect the records, and those records are not included in the record on appeal for this Court’s review. Moreover, we note that the record indicates that the trial court denied the appellant’s motion to compel the records in part because the appellant was not willing to waive his privilege with respect to similar records. However, as this Court pointed out in both Schaefer and Kirby, a claim of statutory privilege may, in some cases, violate a defendant’s Sixth Amendment right to confrontation and cross-examination and the determination whether the privilege outweighs a defendant’s Sixth Amendment rights is a balancing process — the reasons for the privilege must be weighed against the defendant’s right to present evidence affecting the credibility of witnesses. A defendant’s decision not to waive his statutory privilege is not a part of this balancing process and cannot be used against a defendant in determining whether the privilege outweighs the right to confrontation and cross-examination.
“We do not hold that an in camera inspection of privileged documents is always necessary before a trial court denies a defendant’s motion to compel production. Rather, we hold that when a defendant sufficiently alleges that privileged documents may contain evidence relevant and material to an issue in the case, the trial court should inspect the documents in camera before ruling on the defendant’s motion. We note that in Schaefer, this Court stated that there was ‘sufficient evidence in the l'eeord to warrant an in camera examination’ of the requested records. 676 So.2d at 949 (emphasis added). That language was not meant to impose a burden on a defendant to actually present ‘evidence’ in order to obtain production of privileged documents; rather, it was meant to place the burden on a defendant to sufficiently allege the relevance and materiality of the evidence that he or she is requesting be produced.
“We agree with the appellant that the trial court in this case abused its discretion in refusing to examine T.H.’s mental-health records before denying the appellant’s motion to compel the production of those records. Therefore, we remand this case to the trial court for it to conduct an in camera inspection of T.H.’s mental-health records and to make specific findings regarding (1) whether the records contain material relevant to T.H.’s credibility, and, (2) if so, whether, after weighing the reasons for the privilege against the appellant’s right to confrontation and cross-examination, disclosure would have been appropriate in this particular case.”

(Footnotes omitted.)

In this case, the defense asserted that the victim had previously made inconsistent statements regarding the offenses; that the victim had made prior statements denying that the abuse occurred or recanting the allegations of abuse; that records from the Alabama Department of Human Resources included statements in which the victim had denied that the appellant had put his mouth on her; and that it believed that the victim’s counseling records might include similar exculpatory information. Based on these assertions, the appellant made a sufficient showing regarding the potential relevance and materiality of the records he was requesting, and the trial court abused its discretion when it refused to conduct an in camera inspection of those records. Therefore, we remand this case to the trial court with instructions that it conduct an in camera review of the victim’s records from the Child Advocacy Center and Rape Response and determine whether the records contain any exculpatory evidence or evidence that would be relevant to impeach the -victim’s credibility. If the records include such evidence, the trial court shall also make specific, written findings of fact regarding whether, after weighing the reasons for the privilege against the appellant’s right to confront and cross-examine witnesses against him, disclosure would have been appropriate in this case. The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 56 days after the release of this opinion. The return to remand shall include the trial court’s specific, written findings of fact; copies of the victim’s records from the Child Advocacy Center and Rape Response; and, if applicable, a transcript of any remand proceedings.

REMANDED WITH INSTRUCTIONS.

McMILLAN, SHAW, AVISE, and AVELCH, JJ., concur.

On Return to Remand

PER CURIAM.

The appellant, Ren Hawkins Brooks, was convicted of two counts of first-degree sodomy, violations of § 13A-6-63(a)(3), Ala.Code 1975, and first-degree sexual abuse, a violation of § 13A-6-66(a)(3), Ala. Code 1975. He was sentenced to concurrent terms of 25 years in prison on the sodomy convictions and 10 years in prison on the sexual-abuse conviction.

Brooks was first tried in February 2006. A mistrial was declared after the jury was unable to reach a verdict. Brooks was tried a second time in August 2006 and was convicted of two counts of sodomy in the first degree and one count of sexual abuse in the first degree. He appealed to this Court.

On August 31, 2007, we remanded this case to the circuit court with instructions that that court conduct an in camera review of records from the Children’s Advocacy Center and Rape Response relating to the victim, which Brooks argued he was entitled to, and determine whether the records contained any exculpatory evidence or evidence that would tend to impeach the victim’s credibility. See Brooks v. State, 33 So.3d 1262 (Ala.Crim.App.2007).

The circuit court complied with our instructions and submitted the following order on return to remand:

“As directed this court has obtained the counseling records from the Cramer Children’s Center (formerly known as the Children’s Advocacy Center) and from Rape Response. The court has carefully read said records and examined them for potentially exculpatory information. Nowhere in said records was it found that the victim made a statement inconsistent with her in-court testimony or inconsistent with her prior out-of-court statements. The records would not be relevant to impeach the victim’s credibility. Nothing in said records is otherwise exculpatory.
“After weighing the reasons for the privilege against the appellant’s right to confront and cross-examine witnesses against him this court determines that disclosure of the records would not be appropriate in this case.”

We have examined the records, which were filed under seal with this Court, and agree with the circuit court that the records contain nothing remotely exculpatory or inconsistent with the victim’s statements or with her trial testimony. Accordingly, we affirm the circuit court’s denial of Brooks’s motion for access to the records from the Cramer Children’s Center (formerly the Children’s Advocacy Center) and Rape Response.

The State’s evidence tended to show that H.F. was 14 years old at the time of the second trial. H.F. testified that from the time she was 8 until she was 11 Brooks molested her. She said that it started with Brooks touching her “private areas” and that it progressed to him performing oral sex on her and Brooks having H.F. perform oral sex on him.

Brooks raises a number of other issues in his brief to this Court. However, because it is necessary to reverse the convictions in this case we address only the issue that merits reversal.

Brooks argues that the circuit court abused its discretion in allowing the State to introduce test results indicating that H.F. had Type 1 herpes when, he argues, the State failed to establish a sufficient predicate for the samples. Specifically, he argues that the State failed to establish a proper predicate for the vaginal swabs taken from H.F., the blood drawn from H.F., and the blood drawn from Brooks.

The State argues that any weak links in the chain of custody affected the credibility of the evidence and not its admissibility and that the test results were correctly received into evidence.

The record shows that when the State attempted to introduce the test results Brooks objected and argued that he had not been given an opportunity to cross-examine anyone from the lab where the tests had been conducted. The circuit court sustained the objection. (R. 155.) The record further shows that when the State later introduced State’s Exhibit 8, which was the test results, Brooks objected stating that there was no “chain of predicate.” (R. 497.) The circuit court overruled the objection and allowed the test results to be admitted.

Dr. Ashley Burchfield, a physician at Rogersville Family Practice, testified that she examined H.F. in October 2004. She said that she used a swab to collect a sample from the blisters on H.F.’s genitals, that she put the swab in a “collection tube,” and that she sent the swab to Quest Diagnostics Laboratory in Atlanta for testing. Dr. Burchfield said that about one week later she drew blood from H.F. and also sent the blood to Quest Diagnostics for testing. Dr. Burchfield explained that herpes has two forms — Type 1 and Type 2. She testified that Type 1 typically is cold sores and that Type 2 is genital blisters. Dr. Burchfield further testified that Type 1 herpes can be caused by receiving oral sex from an infected individual.

Dr. Thomas Burgess, the technical director for Quest Diagnostics Laboratory in Atlanta, testified that he is in charge of quality control for the lab. He testified concerning the general procedures and protocols used by Quest Diagnostics to ensure the integrity of the various samples sent to Quest Diagnostics for testing. The report generated by Quest on the vaginal swab and blood sample taken from H.F. was admitted during Dr. Burgess’s testimony. (Exhibit 8.) Dr. Burgess explained the results of the tests conducted on the samples. He testified that the vaginal swab indicated that H.F. had herpes and that the blood test enabled the lab to isolate and determine that H.F. had Type 1 herpes. Dr. Burgess could not testify to any specifics concerning the samples taken from H.F. and tested at the lab.

Brooks presented the testimony of Dr. James Fitts, Jr., a physician in Columbia, Tennessee. He testified that he was contacted and asked to conduct a herpes test on Brooks. He said that he drew blood and sent it out for testing and that the tests revealed that Brooks had Type 1 herpes. At the end of Dr. Fitts’s testimony Brooks admitted the test results as Defendant’s exhibit 5.

The Alabama Supreme Court has explained the following concerning “chain of custody”:

“The chain of custody is composed of ‘links.’ A ‘link’ is anyone who handled the item. The State must identify each link from the time the item was seized. In order to show a proper chain of custody, the record must show each link and also the following with regard to each link’s possession of the item: ‘(1) [the] receipt of the item; (2) [the] ultimate disposition of the item, i.e., transfer, destruction, or retention; and (8) [the] safeguarding and handling of the item between receipt and disposition.’ Imwinklereid, The Identification of Original, Real Evidence, 61 Mil.L.Rev. 145,159 (1973).”

Ex parte Holton, 590 So.2d 918, 920 (Ala.1991).

In this case the chain of custody for the vaginal swab and the blood sample taken from H.F. is totally lacking. In regard to the vaginal swab, the record shows that Dr. Burchfield took a sample, put it in a tube, and sent it to Quest Diagnostics. There is no testimony concerning the method used to safeguard the sample after it was collected and sent to the lab. Neither is there any testimony as to how the samples were transported from Dr. Burch-field’s office to the lab for testing. Indeed, no individuals in the chain of custody, other than Dr. Burchfield, are identified. We do not know the individual who accepted the sample at the lab or the individual who conducted the tests on the samples. We do not know whether the samples were received at the lab in the same condition as when they were sealed and transported. The record is totally devoid of the requisite chain of custody for these samples. We have no means of determining whether the integrity of the samples was protected from the time they were collected until they were tested at the lab. There is even less testimony on the chain of custody for the blood sample. There are many missing links in the chain of custody for both the vaginal swab and the blood sample.

In Birge v. State, 973 So.2d 1085 (Ala.Crim.App.2007), a case that presents strikingly similar facts to this case, we held that the State failed to present a sufficient chain of custody for samples collected from the victim’s body. In holding that the circuit court erred in allowing a doctor to testify about the results of the tests conducted on the samples, we stated:

“The chain of custody for the samples removed from Cecil’s body contains several missing links; the chain of custody is so deficient in this case that we are unable to identify precisely how many people handled the samples Dr. Pless removed from Cecil’s body. This is significant because Dr. Pless testified that a number of people would have handled the samples. We can infer from the record that a courier transported the samples, but we are uncertain of the date of the transfer because Dr. Pless conducted the autopsy on May 25, 2001, and testified that the samples would have been transferred to the lab the following day, but the samples were apparently not received by the analyst or analysts until May 29, 2001. We would expect that someone at the laboratory received the samples and catalogued them into a tracking system; that the person who received the samples would have placed them in a secure, temperature-controlled location until the analyst or analysts retrieved the samples for testing; that the analyst or analysts would have picked up the samples from the secure location and would have safeguarded them during the testing process to ensure that the samples were not contaminated or that the reliability of the test results was not otherwise compromised. However, all of the foregoing are matters of pure speculation because the State failed to establish the chain of custody for the samples after Dr. Pless’s assistant placed them in the refrigerator. The State failed to identify any of the links who handled the evidence after Etame secured it, and it therefore could provide no information about the receipt, disposition, and safeguarding and handling of the evidence, all of which are required by Ex parte Holton. Without this necessary information, the State’s chain of custody has several missing links, and missing links, the Alabama Supreme Court has said, render evidence inadmissible.
“The evidence for which the State failed to establish a proper chain of custody was the crux of the State’s case. The toxicology evidence presented the only proof that Cecil did not die of natural causes, as had been initially believed. Only the toxicology results established that Cecil died of a multiple-drug overdose, and that evidence allowed the jury to conclude that the State presented sufficient proof that Birge had murdered her husband. If the toxicology report had not been admitted, Dr. Pless could have testified about the results of his own observations from the autopsy, but he would not have been able to testify about the drugs discovered in Cecil’s system, nor would he have been able to testify that the cause of death was a multiple-drug overdose.
“In Lee v. State, 748 So.2d 904 (Ala.Crim.App.1999), overruled in part on other grounds, Pruitt v. State, 954 So.2d 611 (Ala.Crim.App.2006), we reversed a conviction as a result of missing links in the chain of custody. Lee was convicted of unlawful distribution of a controlled substance following a drug sale to an undercover agent. The testimony at Lee’s trial established that the crack cocaine was delivered by the undercover agent, David Larimer, to a second agent, Mike Gulledge, who delivered it to drug chemist Kelly Cannon at the Alabama Department of Forensic Sciences for testing. The individuals who handled the evidence were identified, but ‘[t]his is essentially all of the testimony contained in the record concerning the chain of custody ... in this case.’ Lee, 748 So.2d at 911. We reversed the conviction and stated:
“ ‘In the instant case, there were clearly missing links in the State’s chain of custody. There is no evidence, either direct or circumstantial, reflecting what Larimer did with the substance he purchased from Lee or reflecting how Larimer handled and safeguarded the substance while it was in his possession before it was delivered to Gulledge. There was no evidence reflecting that the substance was ever sealed in an evidence envelope or safeguarded in any way by Larimer. There is no evidence, either direct or circumstantial, reflecting what Gulledge did with the substance while it was in his possession or how Gulledge handled or safeguarded the substance while it was in his possession. There is no evidence reflecting that the substance was ever sealed in an evidence envelope or safeguarded in any way by Gulledge. Moreover, Cannon did not state that the substance was in a sealed condition when she received it. Her testimony reflected only that she sealed the envelope the evidence was in after she completed her testing. To reiterate, there is no testimony reflecting where the substance was kept or how it was kept before it was presented to Cannon. Nor was there any evidence that when the substance was received at the lab it was packaged so as to be tamper-resistant.
“ ‘In Ex parte Cook, 624 So.2d 511 (Ala.1993), the Alabama Supreme Court held that a link in the chain of custody of certain evidence (cigarette butts and socks) was missing even though Birmingham police officer Belinda Weldon testified that she had directed another officer to collect the evidence and had watched the officer collect it. The Alabama Supreme Court held that the evidence was inadmissible because “the State did not establish when these items were sealed or how they were handled or safeguarded from the time they were seized until [Phyllis] Rowland[, a forensic serologist at the Alabama Department of Forensic Sciences] received them.” 624 So.2d at 514. The Alabama Supreme Court said that the evidence in question “was inadmissible under Holton.” 624 So.2d at 514. Thus, in Lee’s case, as in the Cook case, the State failed to show for the record each “ ‘of the three criteria as to each link[; thus,] the result is a “missing” link, and the item is inadmissible.’” Harrison v. State, 650 So.2d 603, 605 (Ala.Cr.App.1994) (quoting Ex parte Holton, 590 So.2d 918, 920 (Ala.1991)).
“ ‘Moreover, this is not a case where a witness specifically identified the evidence and where the condition of the evidence was not an issue in the case. Section 12-21-13, Ala.Code 1975 provides:
“ ‘ “Physical evidence connected with or collected in the investigation of a crime shall not be excluded from consideration by a jury or court due to a failure to prove the chain of custody of the evidence. Whenever a witness in a criminal trial identifies a physical piece of evidence connected with or collected in the investigation of a crime, the evidence shall be submitted to the jury or court for whatever weight the jury or court may deem proper. The trial court in its charge to the jury shall explain any break in the chain of custody concerning the physical evidence.”
“ ‘In Land v. State, 678 So.2d 201 (Ala.Cr.App.1995), aff'd, 678 So.2d 224 (Ala.1996), a ease which appears to rely on § 12-21-13, this court ruled that where a witness can specifically identify the evidence, and its condition is not an issue in the case, then the State is not required to establish a complete chain of custody in order for the evidence to be admitted into evidence. We stated: “The eyeglasses were admissible without establishing a chain of custody because [the testifying officer] was able to specifically identify them, and their condition was not an issue in the case.” Land, 678 So.2d at 210. However, the Land opinion distinguished Cook stating:
“ ‘ “The State was required to establish a complete chain of custody for the cigarette butts and socks collected at the scene of the homicide in Ex parte Cook, 624 So.2d 511 (Ala.1993), but not for the eyeglasses collected at the scene of this homicide because the items in Cook, unlike the eyeglasses here, were subjected to scientific analysis and their condition was at issue.”
‘Land v. State, 678 So.2d at 210.
“ ‘The evidence in Lee’s case cannot be admissible under § 12-21-13, Ala. Code 1975, because no witness directly testified at trial that the substance tested by Cannon was the same substance Lee had sold to Larimer. Moreover, the condition of the substance, i.e., whether it was a cocaine, was the crux of the case. Therefore, because there were missing links in the chain of custody, the trial court erred in admitting the substance into evidence over Lee’s chain-of-custody objection.’
748 So.2d at 912-13.
“In Lee, each person who handled the evidence was identified; here, we have no information identifying anyone who handled the samples in this case after Dr. Pless saw Etame put them in the refrigerator. Although Dr. Pless testified that he placed the samples in tubes and labeled them, then placed the tubes in biohazard bags, we have no testimony — direct or circumstantial — indicating the condition of the evidence when it was received at the lab, and we have no evidence as to the manner in which the samples were handled or safeguarded after the samples were placed in the refrigerator on May 25. Thus, as in Lee, the State failed to present testimony about the safeguarding and handling of the evidence. This deficiency is compounded by the State’s failure to identify many of the links in the chain.
“We note, additionally, that Dr. Pless’s testimony created some discrepancy regarding the handling of the evidence, because he stated that the samples would have been transferred on May 26, yet the toxicology report indicates the samples were received on May 29, leaving a gap of several days when the whereabouts of the crucial evidence are unknown. While we could surmise that Dr. Pless was mistaken about the date of transfer, and we could infer that a courier picked up the samples on the next working day after the Memorial Day holiday, it would be wholly inappropriate for us to engage in such surmise and inference, because this is precisely the type of testimony that the State should have presented to establish the chain of custody for the samples. Thus, as in Lee, the State failed to prove a complete chain of evidence for the crucial toxicology evidence, and the trial court erred to reversal when it allowed Dr. Pless to testify to the results of the toxicology analysis.

Birge, 973 So.2d at 1094-99 (footnotes omitted). We held in Birge:

“As in Green [v. Alabama Power Co., 597 So.2d 1325 (Ala.1992),] the case before us presents missing links from the chain of custody for evidence that was crucial to prove the State’s ease. Although the State contends that the chain it presented has only weak, not missing, links, that argument is not persuasive. The record before us contains no testimony identifying anyone who handled the evidence after it was placed in the refrigerator. Thus, not only does the record lack the necessary testimony about the receipt, disposition, and safeguarding by those who handled the evidence, it lacks the very identification of those individuals who came into contact with it after Dr. Pless gave it to Etame. Importantly, there is no testimony from the analyst who received the evidence indicating what evidence was received, when it was received, or that it was received in a sealed package that appeared not to have been tampered with. There is simply no evidence to prove who handled the samples extracted by Dr. Pless from Cecil’s body, that those samples were safeguarded before they were analyzed, or that the samples were, in fact, the ones removed from Cecil’s body. Contrary to the State’s assertions at oral argument, the fact that Dr. Pless had general knowledge of the procedures used at the AIT lab could not satisfy the requirements of Ex 'parte Holton that the State identify the links and provide testimony about the receipt, disposition, and safeguarding of the evidence. Nothing in Alabama caselaw permits such speculative and generalized testimony to satisfy the requirements to prove the chain of custody. Nor can this Court engage in conjecture to fill in large gaps in the State’s inadequate chain of custody.”

Birge, 973 So.2d at 1102. See also 77 A.L.R.5th 201, Authentication of Blood Sample (2000).

In Suttle v. State, 565 So.2d 1197, 1199 (Ala.Crim.App.1990), we held that it was reversible error for the court to allow test results conducted on a blood sample to be admitted when there was not a sufficient chain of custody for the sample. We stated:

“With regard to specimens taken from the human body, it is also incumbent upon the prosecution to show that the specimen analyzed was in fact the specimen taken from the defendant. In such cases, ‘[t]he “chain of custody” involves “the necessity of proving where and by whom the specimen was kept and through whose hands it passed.” J. Richardson, Modern Scientific Evidence, Section 13.14a (2d ed.1974).’ Gothard v. State, 452 So.2d 889, 890 (Aa.Cr.App.), cert. stricken, 450 So.2d 479 (Ala.1984). ... ‘[Wjhere the substance analyzed has passed through several hands the evidence must not leave it to conjecture as to who had it and what was done with it between the taking and the analysis’ Rodgers v. Commonwealth, 197 Va. 527, 90 S.E.2d 257, 260 (1955) (emphasis added).
“The importance of the chain of custody of a blood sample was demonstrated by this court in Miller v. State, 484 So.2d 1203 (Ala.Cr.App.1986). There a lab technician took a blood sample from the defendant, placing it in ‘ “a vacutainer type instrument” ’ which he then wrapped in tape and gave to a trooper. The trooper took the sample to the trooper post, ‘ “put it in an envelope, sealed it and initialed it,” ’ then placed it ‘in “the mail,” ’ meaning the department’s outgoing mail, not the United States mail. The toxicologist ‘received “this container in the mail’ ” and determined the blood alcohol level of the sample. 484 So.2d at 1204.
“We held that the prosecution had failed to establish the requisite chain of custody because there was no showing of the use of the United States mail so as to raise the presumption that ‘ “articles shipped by mail [United States Postal Service] are delivered in substantially the same condition as when placed in the mail box or post office.” ’ 484 So.2d at 1205.”

565 So.2d at 1199.

In this case, the State failed to present a sufficient chain of custody for the vaginal swab and the blood sample collected from H.F. Accordingly, the circuit court erred in allowing testimony concerning the test results on those samples.

Moreover, the Alabama Supreme Court in Ex parte Phillips, 962 So.2d 159 (Ala.2006), addressed whether the erroneous admission of test results based on missing links in the chain of custody for the samples used for the test was harmless error, given the victim’s testimony that the defendant had sexually abused her. The Phillips Court, reversing this Court’s holding that the error was harmless, noted that “overwhelming evidence of guilt does not render prejudicial error harmless.” 962 So.2d at 165. The Supreme Court then wrote:

“Had the evidence of the chlamydial infections been excluded, the jury would have been provided essentially with the opposing versions of D.M. and Phillips, and if it had found his version to be more credible, or even if it found itself unable in the final analysis to determine who was telling the truth, it might have found itself unable to agree that Phillips was guilty beyond a reasonable doubt; it then could have returned a verdict of not guilty or perhaps have been deadlocked, necessitating a mistrial. Accordingly, we cannot ignore the probable effect on the jury of the inadmissible evidence of the chlamydial infections of both D.M. and her mother.”

962 So.2d at 165.

As the Alabama Supreme Court cautioned in Phillips, we cannot “ignore the probable effect” on the jury of the erroneous admission of the extremely prejudicial test results. This is especially true in this case given that Brooks’s first trial ended in a mistrial, after this same evidence was admitted, because the jurors were unable to reach a unanimous verdict on the sodomy charges. (R. 45-48.)

Accordingly, we have no choice but to reverse Brooks’s convictions and remand this case to the circuit court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, SHAW, and WELCH, JJ., concur.

BASCHAB, P.J., concurs specially, with opinion.

BASCHAB, Presiding Judge,

concurring specially.

I agree with the majority’s conclusion that we must reverse this case because the State did not establish an adequate chain of custody for the vaginal swab and blood sample collected from the victim. However, I write specially to note that the appellant raised several potentially meritorious issues which the State should be aware of in the event of a retrial.

      . Because of our disposition of this case, we pretermit discussion of the remaining claims the appellant raises in his brief to this court.

      . By an amendment effective July 1, 2006, subsection (a)(3) was deleted from § 13A-6-66. The provisions of that subsection were reenacted as § 13A-6-69.1, and the offense was made a Class B felony.

      . Brooks's objection that there was no “chain of predicate” was sufficient to preserve this issue for appellate review. See Ex parte Works, 640 So.2d 1056 (Ala.1994) (noting that objection that "proper predicate” had not been laid was sufficient to preserve issue for appellate review); Jennings v. State, 588 So.2d 540 (Ala.Crim.App.1991) ( noting that "improper predicate” and "that is not the proper way to do that" were sufficient objections to preserve chain-of-custody issue for appellate review).

      . We note that if there was error in admitting Defendant's exhibit number 5, it was invited by Brooks. See Bedsole v. State, 974 So.2d 1034 (Ala.Crim.App.2006).


author: McMILLAN, Judge. WELCH, Judge,

text:
    Antonio JACKSON, Jr. v. STATE of Alabama.
    CR-06-1019.
    Court of Criminal Appeals of Alabama.
    Sept. 26, 2008.
    Rehearing Denied Dec. 19, 2008.
    Erskine R. Mathis, Birmingham, for appellant.
    Troy King, atty. gen., and Michael G. Dean, asst. atty. gen., for appellee.
   McMILLAN, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

BASCHAB, P.J., and SHAW and WISE, JJ., concur in the result. WELCH, J., dissents, with opinion.

WELCH, Judge,

dissenting.

I believe that the trial court improperly admitted evidence that Antonio Jackson, Jr., previously had been convicted of capital murder and that the admission of such evidence in Jackson’s current capital-murder trial was unduly prejudicial. Therefore, I must respectfully dissent from the unpublished memorandum.

The record shows that Willie Jennings’s girlfriend, Ladreka Davis, testified that she and Jennings went to the mall the morning just before Jennings’s death. Jennings was wearing a “rest-in-peace” T-shirt bearing a picture of his cousin, Ta-varis Cottrell, who had been murdered. (R. 62.) Davis said they saw Jackson and the co-defendant, Efferman Moore, as they were leaving. Jackson approached Jennings and said, “Man, you know I didn’t do that,” referring to Cottrell’s killing. Davis said Jennings responded, “Man, whatever,” and then Davis and Jennings left the mall. (R. 63.) Jennings was shot and killed shortly afterward.

During the course of the trial, the prosecution introduced evidence of Jackson’s capital-murder conviction for Cottrell’s death. The trial court admitted the certified document showing the conviction over Jackson’s objection that it was inadmissible character evidence and that its prejudicial value outweighed its probative value.

On appeal, the State argued that the conviction was reasonably necessary to the prosecution’s case because, it said, it tended to connect Jackson’s statement to Jennings’s murder and to show the motive for the confrontation between Jackson and Jennings at the mall and the motive for the subsequent killing of Jennings. I disagree.

“ ‘ “ ‘The decision whether to allow or not to allow evidence of collateral crimes or acts as part of the State’s case-in-chief rests within the sound discretion of the trial judge.” ’ Akin v. State, 698 So.2d 228, 234 (Ala.Crim.App.1996), cert. denied, 698 So.2d 238 (Ala.1997), quoting Blanco v. State, 515 So.2d 115, 120 (Ala.Crim.App.1987).
“ ‘In Bradley v. State, 577 So.2d 541 (Ala.Crim.App.1990), this court stated:
“ ‘ “We have recognized that the list of traditionally recognized exceptions is not exhaustive and fixed. See Nicks v. State, 521 So.2d [1018] at 1025 [ (Ala.Crim.App.1987), aff'd, 521 So.2d 1035 (Ala.), cert. denied, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 948 (1988) ]. ‘It must ever be borne in mind that the state may prove the accused’s commission of another crime if such other crime is relevant for any purpose other than that of showing his guilt through the medium of bad character.’
“ ‘C. Gamble, McElroy’s Alabama Evidence § 69.0[1](1) (3d ed.1977) (quoting Mr. Justice McElroy, 2nd ed.).
“ ‘ “ ‘In all instances, the question is whether the proposed evidence is primarily to prove the commission of another disconnected crime, or whether it is material to some issue in the case. If it is material and logically relevant to an issue in the case, whether to prove an element of the crime, or to controvert a material contention of defendant, it is not inadmissible because in making the proof the commission of an independent disconnected crime is an inseparable feature of it.’
“ ‘ “Snead v. State, 243 Ala. 23, 24, 8 So.2d 269, 270 (1942). However, even though evidence of collateral crimes or acts may be relevant to an issue other than the defendant’s character, it should be excluded if ‘it would serve comparatively little or no purpose except to arouse the passion, prejudice, or sympathy of the jury,’ Spellman v. State, 473 So.2d 618, 621 (Ala.Crim.App.1985), or put another way, ‘unless its probative value is “substantially outweighed by its undue prejudice,” ’ United States v. Stubbins, 877 F.2d 42, 43 (11th Cir.), cert. denied, 493 U.S. 940, 110 S.Ct. 340, 107 L.Ed.2d 328 (1989) (quoting United States v. Beechum, 582 F.2d 898 (5th Cir.1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979)).” ’ ”

Alexander v. State, 987 So.2d 643, 649-50 (Ala.Crim.App.2007), quoting Gamble v. State, 791 So.2d 409, 439-1 (Ala.Crim.App.2000).

Here, whether Jackson was actually convicted for the murder of Cottrell is irrelevant to show motive or any other issue in this case. Rather, Jennings’s apparent belief that Jackson had killed Cottrell, which appeared to lead to an exchange of words between him and Jackson, would be the evidence relevant to show a motive for Jackson to kill Jennings. Whether Jackson was convicted for the killing has little, if anything, to do with why Jackson would have killed Jennings following their confrontation at the mall. Furthermore, I am hard-pressed to see how the death of Jennings would benefit Jackson as far as Cott-rell’s death is concerned, and so I am dubious as to how Jackson’s conviction for Cottrell’s death would lead one to a motive for killing of Jennings.

The State suggested an alternative — and I believe far more likely — motive for Jackson to kill Jennings, i.e., a revenge killing for the supposed theft of illegal drugs from Jackson. Jennings’s mother, Dorothy De-lemus, testified that Jennings and Jackson had been friends but that she disapproved of Jackson because he was a drug dealer. She acknowledged that Jennings had sold drugs with Jackson.

I agree with Jackson that the introduction of his capital-murder conviction for the death of Cottrell was unnecessary. Allowing the jury to hear of the conviction was far more prejudicial and served to inflame the jury more than it did to add any probative value to the proceeding. Accordingly, I believe that the trial court abused its discretion in allowing evidence of Jackson’s capital-murder conviction to be admitted.

For the reason set forth above, I would reverse the judgment of the trial court and remand this cause for further proceedings. Therefore, I must respectfully dissent.