text:
    Shahin Shawn ESFAHANI v. STEELWOOD PROPERTY OWNERS' ASSOCIATION, INC.
    2170455
    Court of Civil Appeals of Alabama.
    August 10, 2018
    Michael C. Niemeyer of Hand Arendall Harrison Sale LLC, Fairhope; and Edward T. Rowe of Hand Arendall Harrison Sale LLC, Mobile, for appellant.
    James B. Pittman, Jr., and Jon C. Archer II of James B. Pittman, Jr., P.C., Daphne, for appellee.
   THOMAS, Judge.

Shahin Shawn Esfahani appeals from a judgment of the Baldwin Circuit Court ("the trial court") in favor of Steelwood Property Owners' Association, Inc. ("the Association"), regarding a decision of the Association's Architectural Review Board ("the ARB") to deny approval of certain palm trees that Esfahani planted on his property. We affirm the judgment in part and reverse it in part.

Background

Steelwood is a residential subdivision in Baldwin County. In 2012, Esfahani acquired a fee-simple interest in real property located within Steelwood via a warranty deed that incorporated by reference, among other things, a number of restrictive covenants and the Association's bylaws. The restrictions set out in Steelwood's "declaration of rights, covenants, restrictions, affirmative obligations and conditions" ("Steelwood's declaration") that are pertinent to this appeal provide:

"Section 7.01 RESPONSIBILITIES OF OWNERS .... No Owner shall (a) decorate, change or otherwise alter the appearance of any portion of the exterior of a dwelling or the landscaping, grounds or other improvements within a Lot unless such decoration, change or alteration is first approved, in writing, by the Developer or the [ARB] ....
"....
"Section 13.04 PURPOSE. In order to preserve and enhance the natural setting, beauty and utility of the Development, to establish and preserve a harmonious and aesthetically pleasing design for the Development, and to protect and promote the value of the Development and its environment, the Lots, and all improvements located therein or thereon shall be subject to the restrictions set forth in this Declaration. Every grantee of any interest in the Development, by acceptance of a deed or other conveyance of such interest, agrees to be bound by the provisions of this Declaration.
"....
"Section 13.07 ARCHITECTURAL APPROVAL. To preserve the architectural and aesthetic appearance of the Development, no construction of improvements of any nature ... shall be commenced ... unless and until two (2) copies of the plans and specifications relation data shall have been submitted and approved in writing by the [ARB] .... In the event the [ARB] shall determine that such plans and specifications have not been approved ... the [ARB] shall be entitled to ... require the removal ... of any work in place which does not comply with approved plans and specifications.
"Section 13.08 LANDSCAPING APPROVAL. No landscaping, grading, excavation, or filling of any nature whatsoever shall be implemented and installed by any Owner, other than the Developer, unless and until the plans therefor have been submitted to and approved in writing by the [ARB]. The provision of Section 13.07 hereof regarding ... right to enjoin and/or require removal ... shall also be applicable to any proposed landscaping ....
"....
"Section 15.03 ENFORCEMENT. This Declaration shall be enforceable by the Association, the Developer, the [ARB], or any Member of the Association by a proceeding at law or in equity against any person or persons violating or attempting to violate or circumvent any covenant or restriction, either to restrain violation or to recover damages, and to enforce any lien created by this Declaration; and failure by the Association or any Member or the Developer to enforce any covenant or restriction herein contained for any period of time shall in no event be deemed a waiver or estoppel of the right of any of the foregoing to enforce the same thereafter."

In 2013, Esfahani installed palm trees on his property, some in planters near his swimming pool and some planted in the ground. In October 2014, the Association filed a complaint in the trial court alleging that Esfahani had failed to obtain the ARB's approval before installing the palm trees, that the ARB had denied approval of some the palm trees after Esfahani submitted a landscaping plan for approval, and that Esfahani had subsequently refused to remove the palm trees that the ARB had not approved. The Association sought a declaratory judgment, requested preliminary and permanent injunctions to require removal of "all landscaping or architectural ornaments" that violated the restrictive covenants and to prevent additional landscaping without the ARB's approval, and asserted a count for "breach of covenants/constructive trust/association lien" against Esfahani. Esfahani answered the Association's complaint and asserted various affirmative defenses.

A trial at which ore tenus evidence was received was conducted on May 30, 2017. The Association called Richard Miller to testify. Miller had been a principal in the entity that developed Steelwood and, at the time of the trial, was a member of the Association's board of directors and served on the ARB. He also lived adjacent to Esfahani. Miller testified that Esfahani had purchased his Steelwood property after the previous owners' house burned; he said a "very small" portion of the existing landscaping was also burned during that fire.

Miller testified that he had seen the palm trees at issue when they were delivered to Esfahani's property and that he had informed Esfahani that the ARB was unlikely to approve their installation. Miller said that Esfahani had indicated that he would "he[e]l them in," which Miller "took ... to mean just to get them in the ground so they wouldn't be sitting out exposed but not planted to the degree that you would if you were doing it on a permanent basis." Miller said that Esfahani had not submitted a landscaping plan to the ARB before their conversation regarding the palm trees and that he had informed Esfahani that the ARB would need to review a plan.

Miller testified regarding a number of letters in which the ARB had informed Esfahani of, among other things, the need to obtain the ARB's approval of his landscaping plan, which, the letters indicate, Esfahani eventually submitted. The ARB approved aspects of Esfahani's landscaping plan but determined that Esfahani's palm trees, other than some that had been installed around his swimming pool, violated Steelwood's restrictive covenants. Miller explained during cross-examination that the ARB had approved the palm trees that were installed near Esfahani's pool "because they were, in fact, in planters and not in the yard itself[,] and we wanted to work with [Esfahani] on that."

In one of the letters, the ARB also requested that Esfahani submit a "landscape buffer" plan that would depict landscaping designed to shield certain of Esfahani's proposed landscaping features from public view. The ARB eventually directed Esfahani to remove his palm trees, other than those that had been installed near his swimming pool, but Esfahani did not do so. Miller said that there were no other palm trees like Esfahani's in Steelwood.

Miller testified that Esfahani had also installed certain decorative items, such as sculptures and fountains, and that, although a landscaping buffer had eventually been installed, it was not of sufficient height to block the decorative items from view. He asked that the trial court order Esfahani to remove the decorative items until the landscaping buffer had grown sufficiently tall, which, he estimated, would be approximately 10 feet high, or to alternatively order Esfahani to install a landscaping buffer of sufficient height.

Miller was cross-examined extensively. Miller testified that Esfahani had "obviously" misunderstood what sort of landscaping plan he was required to submit to the ARB for approval. He also admitted that Steelwood's restrictive covenants did not specifically prohibit palm trees, or any particular species of tree for that matter. He further admitted that the restrictive covenants did not require that plants installed within Steelwood be "indigenous," although that descriptor had been used in at least one letter from the ARB to explain why Esfahani's palm trees were prohibited. Miller said that using that descriptor was "a poor choice of words in this correspondence."

Miller opined that Esfahani's palm trees did not "blend harmoniously with the natural landscape on the adjoining lots and so on." He admitted that there was no specific document that defined what plants would be harmonious. He was asked about other palm plants in Steelwood, which had apparently been approved by the ARB, and, in at least one instance, he indicated that those plants were harmonious because the ARB had decided they were.

During redirect examination, Miller said that the ARB's intent had been to differentiate between shrubs or bushes and trees. Regarding Esfahani's landscaping, Miller also admitted: "They've got a gorgeous -- everything they've done is magnificent." During redirect examination, he said that Esfahani's palm trees were "[b]eautiful."

At the close of the Association's case-in-chief, Esfahani orally moved for a judgment as a matter of law, which the trial court denied. Esfahani called Deborah Newberry as a witness. Newberry said that she had served on the Association's board of directors from the latter part of 2010 through the beginning of 2013 and had been president of the board for a substantial portion of that time. She testified that, during that time, she had attempted to appoint herself to the ARB but had been informed by Miller that she lacked authority to do so.

Regarding her Steelwood residence, Newberry said that the ARB had approved the landscaping plan for that property. When asked by Esfahani's attorney whether the plan had included "[a] palm of some kind," Newberry testified: "I checked yesterday[,] and we have five in our yard." During cross-examination, Newberry testified that the height of those plants ranged from approximately 4 feet to approximately 10 feet. She also said that she had modified the landscaping on her property without submitting a formal landscaping plan to the ARB, apparently without incident. She opined that Esfahani's palm trees did not negatively impact any aspect of Steelwood.

Esfahani also testified. He indicated that he and his wife had met with Miller and his wife on at least two occasions to discuss his purchase of the property in Steelwood and his intentions regarding reconstruction since the preexisting house had been burned. Esfahani said the following regarding one of the meetings:

"I asked if there was any permits, anything that I need[ed] to do, any submissions of plans to them. And the response was, no, that as long as I build the same house, nothing needed to be added. And as for landscaping, they said as long as it's done in good taste, we would be agreeable and amicable. With that in mind, I pulled the permits from the city."

He related the following regarding the palm trees at issue:

"[W]e purchased 13 or 14 palm trees. Eight of them were delivered immediately[,] and we planted those.... Two weeks went by[,] and the second order came in for the front and around the house. At that point, ... Miller walked up to my property and said those palm trees need to be approved by the ARB, the homeowner association. The palm trees around my pool area had already been planted for two weeks[,] and there w[as] no discussion regarding them being temporarily in as I heard ... Miller testify earlier."

Esfahani said that the conversation had taken place in his front yard and that Miller had expressed concern over the palm trees not being "indigenous to th[e] area." Esfahani testified that, approximately two days after his encounter with Miller, he had received a letter from the ARB asking for a formal landscaping plan. Esfahani eventually hired a landscape architect who, he said, Miller's wife had "highly recommended" to assist with developing a landscaping plan.

Esfahani testified that he subsequently met with the ARB. He said that Miller's wife

"was a little distraught or upset about the fact that these trees don't belong in Alabama, they're more of a south Florida flavor, and that would disturb the look of the community. And not understanding the root of it, you know, we went back and forth, you know, as to whether they are indigenous or not. I had seen them all around here and Orange Beach[,] and so we had a simple disagreement as to, you know, whether they belong here or don't belong here."

Esfahani said that the ARB later informed him that the palm trees would not be approved because they were not harmonious after, he opined, the ARB learned that most of the plants in Steelwood were not, in fact, "indigenous."

Regarding the landscaping buffer, Esfahani stated:

"So we planted roughly about 30 camellias[,] and they were five gallon camellias. And they grow at a reasonable rate[,] but they don't grow fast. We also fenced it so it is harder to see through from the angle that you're at the golf course because that was the issue, that golfers may be offended."

When asked by his attorney why he had not removed the palm trees at issue after the ARB denied approval of their installation, Esfahani said:

"Well, the reason was given to me of indigenous and harmonious. It didn't fit the description of what was really happening[,] so it seemed like either Mrs. Miller or Mr. Miller just personally did not like that. And that, to me, was not in the best interest of the community. We mutually have a contract to obey[,] and I think they have the responsibility to have the best interest of the homeowners, the people who have invested a lot of money. I have the responsibility to obey the rules as I've tried very hard although they told me I did not need to have any permits. Once they notified me, I immediately went to work[,] and I provided [the ARB] with everything they wanted and some more. Those trees have already been -- half of them were in the dirt, and any one of them that was pulled out died. I just could not find a substantial reason to remove them, and this is why I'm here, Judge, to make sure that if this is a narrow and really kind of an unreasonable way of asking something that does not have to be done, all be it [sic] the mercy of the Court. Otherwise, I felt that their approach was very unreasonable and very, very narrow. And no other member or neighbors that I've seen have ever objected. In fact, they have praised the amount of investment that I have made in that property and the look of it."

Esfahani said that removing the palm trees would cause him significant financial impact.

During cross-examination, Esfahani agreed that his property was burdened by the restrictive covenants referenced in his deed and that those restrictive covenants required Steelwood residents to submit a landscaping plan to the ARB for approval before altering the landscaping on property located within Steelwood. He also agreed that, if the ARB had denied approval of his palm trees before their installation, he would not have incurred the expenses related to their installation and that the restrictive covenants permitted the ARB to deny approval of landscaping based on purely aesthetic considerations.

He explained his failure to submit a landscaping plan to the ARB by referencing his conversations with Miller and his wife, stating: "What they exactly told me was[,] as long as I built the house and[,] in good taste[,] complete the landscaping, I get a pass." Esfahani also agreed that there were no other palm trees like his in Steelwood.

Finally, Esfahani called Bill Finch to testify as an expert witness. Finch testified that he had been familiar with Steelwood "for many decades." He said that Esfahani's property had 10 Sylvestris palm trees and 1 Canary Island Date palm tree. He described Canary Island Date palm trees as "one of the largest of all" and said that "Sylvestris are smaller, probably topping out at 30 to 35 feet here with a trunk that is less robust, not as wide." Finch noted that one of Esfahani's neighbors had planted a "shrub palm," specifically a European Fan Palm, as a part of the landscaping for that property. Finch also said that there was a cluster of palm trees somewhere in Steelwood made up of Cabbage Palms or Sabal Palmettos that could grow to be approximately 60 feet tall.

Much of Finch's testimony focused on the idea that most of the plant life in Steelwood, specifically estimating 80 percent, was not native to the region. The other major focus of his testimony was explaining that many varieties of palm trees are, in fact, native to the region; he said: "About half by volume and half by species were brought in from other places." He testified that Esfahani's palm trees had been "brought in." He also said that he was not aware of any other Sylvestris palm trees in Steelwood and that he had "[m]aybe" seen another Canary Island Date palm tree.

The trial court entered a judgment on June 28, 2017. The judgment provides, in relevant part:

"Count One (1) Declaratory Judgment:
"[Esfahani] purchased Lots 14 and 15, Unit 2, Phase 2, by warranty deed on February 14, 2012. He took title to those lots subject to the Restrictive Covenants applicable to Steelwood subdivision.
"[Esfahani] has violated those Covenants as stated herein below:
"Section 7.01: [Esfahani] did not receive approval (or even submit a request) in writing from the [ARB] prior to altering the landscaping of his property.
"Section 13.04 and 13.08: By planting palm trees on his property, [Esfahani] upset the natural setting and beauty of the neighborhood. These planting[s] did not preserve a harmonious and aesthetically pleasing design for the Development. This determination was that of the [ARB] as set out by the Covenants.
"Restrictive covenants have (as they should) a significant and substantial impact on the use and value of property. Restrictions, of course, restrict the free use of one's land. These are voluntary contracts. [Esfahani] sought out his lots in Steelwood, and he took the property subject to the restrictions. It is irrelevant to any understanding he had concerning his land use, as the restrictions were contained in the deed. The Court is unconcerned with whether [Esfahani] read any transfer documents prior to signing them.
"These lots are subject to architectural review, and the owner must adhere to the restriction contained in the restrictive covenants and [any plans] must be approved in advance by the [ARB]. [The ARB] is charged with making sure the proposed landscaping adheres to the architectural guidelines and whether it will be harmonious with other surrounding landscaping ... as decided by the [ARB] alone. This includes purely aesthetic considerations, as [it] decide[s] them to be. This Court will not substitute its judgment as to whether the planting of palm trees upsets the harmony of the Steelwood subdivision. That, as previously stated, is a function of the [ARB] alone. This Court will, however, ensure that the [ARB] did not act arbitrar[ily] or capricious[ly].
"The testimony was clear that, although many palm shrubs are in landscaping throughout the subdivision, there are no other palm trees. The distinction and approval of palm shrubs and trees is, again, a function for the [ARB] to decide. [It] ha[s] obviously decided that all manner and nature of palm shrubs are to be allowed in the subdivision, but palm trees will not [be], under most circumstances. In Grove Hill Homeowners' Association, Inc. v. Rice, 43 So.[3]d 609 (Ala. Civ. App. 2010), the Alabama Court of Civil Appeals clarified the standard under which a court must consider the enforceability of a decision of an architectural review board of a residential subdivision. Applying that standard, the only judicial issues here are whether the exercise of the review board was procedurally fair and reasonable: whether it was made in good faith; and was reasonable and not arbitrary or capricious. The testimony was clear that [Esfahani] never submitted his landscaping for approval, and [he] was even told by the developer that palm trees would not be approved ... before he planted them. Furthermore, [Esfahani]'s own expert testified that, after spending two (2) days observing Steelwood, the palm trees on the Esfahani property were the only palm trees on property.
"These decisions, since not arbitrary or capricious, will not be second guessed by this Court. As such, the palm trees that were not approved in advance by the [ARB] are in violation of the restrictive covenants. Additionally, the entire landscaping buffer plan was not approved in advance, and [Esfahani] is in violation of the covenants as to that allegation.
"Count two (2) Preliminary and Permanent injunction:
"The evidence presented during [the] trial clearly showed that [Esfahani] had actual and constructive notice of the Covenants requiring prior [ARB] approval of any landscaping plantings. [Esfahani] acknowledged at trial that his deed was subject to the covenants. Additionally, during the trial, testimony concluded that [Esfahani] was informed by ... Miller (after seeing the palm trees being delivered on site) that the review board would likely not approve the palm trees, and [Esfahani] stated he would just 'heel them in' for the time being. At no time thereafter did [Esfahani] present his plan to plant the trees permanently to the [ARB].
"In addition to planting the palm trees without permission, [Esfahani] moved forward with installing/building a number of sculptures and yard art, which were given conditional approval pending submission of a landscape buffer plan which would shield from view those elements from the golf course and neighboring properties. The buffer plan was never approved by the [ARB], and the fact that [Esfahani] moved forward with landscaping was done at his peril.
"The law presumes irreparable harm from the breach of a restrictive covenant regardless of whether the breach actually enhances the value of the subject property. The law cannot adequately address that harm, so an injunction must issue to remedy the breach even if that injunction causes the offending landowner great expense. See Willow Lake Residential Ass'n v. Juliano, 80 So.3d [226,] 239 (Ala. Civ. App. 2010). Since the [ARB]'s action was not done inconsistently or ambiguously, the clear and plain language of the covenants [is] enforceable by injunctive relief. See Grove Hill Homeowners' Ass'n. Inc. v. Rice, 43 So.3d 609 (Ala. Civ. App. 2010) (quoting Carpenter v. Davis, 688 So.2d 256, 258 (Ala. 1997) ); Hipsh v. Graham Creek Estate[s] Owners Ass'n, [927] So.2d 846, 848-49 (Ala. Civ. App. 2005).
"Therefore a permanent injunction is hereby granted against [Esfahani]. Specifically, the four (4) palm trees planted around the pool are not in violation of the restrictive covenants. All remaining palm trees on [Esfahani]'s property are in violation of the restrictive covenants. [Esfahani] shall bring his property into compliance with the restrictive covenants within forty-five (45) days ..., i.e, he shall remove the violative palm trees in that time frame.
"Furthermore, [Esfahani] is barred from removing, trimming, pruning, or disturbing in any manner the barrier landscape he has placed to shield the interior of his property from view. This bar shall remain until either the Court or the [ARB] grants permission to alter their state. [Esfahani] shall further submit a landscape buffer plan to the Association within forty-five (45) days from the date of this order, and he is bound by the recommendations and decisions of the [ARB].
"Count Three (3) Breach of Covenants/Constructive Trust/Association Liens:
"The [Association] successfully proved that [Esfahani] breached the covenants, as discussed in Count two (2) above. According to the By-Laws of the [Association], the Association shall be entitled to recover attorney's fees in the amount of $26,913.44, plus the cost of court for prevailing on the merits."

(Emphasis in original.)

Esfahani filed a postjudgment motion on July 20, 2017, in which he challenged each aspect of the trial court's judgment and requested a stay of its enforcement pending a disposition of his postjudgment motion and any appeal following thereafter. The Association responded to Esfahani's postjudgment motion. On August 8, 2017, the trial court entered an order denying Esfahani's postjudgment motion. On August 9, 2017, Esfahani filed a motion seeking the trial court's approval of a supersedeas bond in the amount of $50,000. The trial court granted the motion the next day. Esfahani filed a notice of appeal to the Alabama Supreme Court on September 19, 2017. The appeal was transferred to this court by our supreme court, pursuant to § 12-2-7(6), Ala. Code 1975.

Analysis

On appeal, Esfahani enumerates four primary issues and several subissues, essentially challenging each determination set out in the trial court's judgment. Esfahani's first set of arguments relate to the issue whether a permanent injunction was warranted, and he begins his analysis by citing our decision in Vestlake Communities Property Owners' Association, Inc. v. Moon, 86 So.3d 359 (Ala. Civ. App. 2011), which he asserts "presented a similar factual scenario to this case in that the property owners' association sought to require removal of an improvement placed by a property owner."

In Vestlake, we quoted from Maxwell v. Boyd, 66 So.3d 257, 258-59 (Ala. Civ. App. 2010), in noting the presumption of correctness that accompanies a trial court's findings based on disputed ore tenus evidence. 86 So.3d at 364-65. We also listed the elements that must be established to obtain a permanent injunction:

" ' "To be entitled to a permanent injunction, a plaintiff must demonstrate success on the merits, a substantial threat of irreparable injury if the injunction is not granted, that the threatened injury to the plaintiff outweighs the harm the injunction may cause the defendant, and that granting the injunction will not disserve the public interest." ' "

86 So.3d at 364 (quoting Sycamore Mgmt. Grp., LLC v. Coosa Cable Co., 42 So.3d 90, 93 (Ala. 2010), quoting in turn TFT, Inc. v. Warning Sys., Inc., 751 So.2d 1238, 1242 (Ala. 1999) ).

Regarding the success-on-the-merits element, Esfahani argues that the Association "failed to prove the breach of a restrictive covenant because there was no covenant prohibiting palm trees or otherwise articulating an applicable objective standard for approved landscaping design." He also devotes a substantial portion of his appellate brief to arguing that the ARB's disapproval of his palm trees was arbitrary and capricious. As the Association points out, however, Esfahani ignores that, in addition to Section 13.04 of Steelwood's declaration, the ARB's interpretation of which the trial court admittedly gave deference, the trial court also determined that Esfahani had breached the objective requirements of Sections 7.01 by failing to obtain the ARB's approval of the palm trees before installing them, which was undisputed and required no deference to the ARB. Esfahani's contention that he did not breach a restrictive covenant therefore lacks merit, and the success-on-the-merits element is satisfied here.

Esfahani also argues that the Association failed to prove that his "palm trees presented a substantial threat of irreparable injury to [the Association] if the injunction sought against Esfahani is not granted." On that point, the trial court cited in its judgment Willow Lake Residential Association, Inc. v. Juliano, 80 So.3d 226, 239 (Ala. Civ. App. 2010) (quoting Tubbs v. Brandon, 374 So.2d 1358, 1361 (Ala. 1979) ), in which we stated:

" 'When a restrictive covenant is broken, [our supreme court] has stated that an injunction should be issued because the mere breach of the covenant is a sufficient basis for interference by injunction. The right to enjoin such a breach will not depend upon whether the covenantee will be damaged by the breach.' "

Esfahani argues that he did not breach an objective restrictive covenant and that

"[t]he presumption of irreparable harm is only applicable in cases where a specific objective covenant is implicated. There is no decision by an Alabama court referencing such a presumption in a case where a subjective decision supported by a dubious or undefined standard created after the decision is challenged. It follows that[,] in the realm of ARB decisions that do not have a basis in a specific objective covenant, such a presumption is not justified. Therefore, no presumption of irreparable harm is applicable and [the Association] was not relieved of the obligation to prove a substantial threat of irreparable injury if the injunction is not granted."

The Association responds by noting that this court has previously explained when "[t]he presumption of irreparable harm" is inapplicable. Our decision in Grove Hill Homeowners' Association, Inc. v. Rice, 90 So.3d 731, 732 (Ala. Civ. App. 2011), involved a second appeal from litigation between a landowner and a homeowners' association regarding the landowner's decision to install a driveway that the homeowners' association asserted violated certain restrictive covenants. In its judgment, the trial court in that case determined that " 'aesthetic value is the only injury [the Association] ha[s] truly attempted to show, and the aesthetic value of the driveway is improved from the original condition of the driveway.' " Id. at 735.

The homeowners' association appealed, and we noted:

"On appeal, the Association argues that the trial court erred in balancing the equities to determine whether it should grant the injunctive relief requested by the Association. The Association quotes several opinions in which Alabama appellate courts have stated that 'the mere breach of the covenant is a sufficient basis for interference by injunction.' Tubbs v. Brandon, 374 So.2d 1358, 1361 (Ala. 1979) (citing Reetz v. Ellis, 279 Ala. 453, 186 So.2d 915 (1966) ); see also Willow Lake Residential Ass'n v. Juliano, 80 So.3d 226 (Ala. Civ. App. 2010). Based on that statement, the Association concludes that an injunction must issue in every case in which a breach of a restrictive covenant is proven, regardless of any equitable considerations. We disagree with that general statement of the law.
"In Lange v. Scofield, 567 So.2d 1299 (Ala. 1990), our supreme court expressly adopted the relative-hardship test, an equitable doctrine that generally provides that a restrictive covenant 'will not be enforced if to do so would harm one landowner without substantially benefiting another landowner.' 567 So.2d at 1302 (citing 5 Richard R. Powell, The Law of Real Property § 679(3) (1987 rev. ed.) ). Under the relative-hardship test as expressed in Lange, it is possible that the breach of a restrictive covenant would not automatically require the issuance of an injunction....
" '....'
"... Based on Lange, if, upon a balancing of the equities, a court determines that the harm resulting to one landowner from the enforcement of a restrictive covenant would be considerably disproportionate to the benefit received by the landowner seeking enforcement, a court may decline to afford the landowner seeking enforcement the equitable relief of an injunction to redress a breach of the restrictive covenant. 9 Richard R. Powell, Powell on Real Property § 60.10[3] (Sept. 2011)."

Id. at 736-37.

We went on, however, to clarify when the holding of Lange v. Scofield, 567 So.2d 1299 (Ala. 1990), does not apply:

"In Maxwell[ v. Boyd, 66 So.3d 257 (Ala. Civ. App. 2010) ], this court held that a landowner who actively breaches a restrictive covenant with actual knowledge or constructive notice of the content of the covenant cannot invoke the relative-hardship test. As this court explained in Maxwell, the relative-hardship test rests entirely on equitable principles. 66 So.3d at 261-62. This court further stated:
" '[I]t follows that seeking the invocation of the doctrine will require the possession of clean hands....
" 'A pertinent specific application of the clean-hands doctrine is that a restrictive covenant should be enforced if the defendant had knowledge [or constructive notice] of it before constructing an improvement contrary to its provisions, even if the harm is disproportionate.'
" 66 So.3d at 261."

Id. at 737.

In this case, Esfahani agreed that his property was burdened by Steelwood's restrictive covenants. He also agreed that the restrictive covenants required the ARB's approval to make any landscaping alterations. Moreover, it was undisputed that, upon observing the delivery of the palm trees at issue, Miller had expressly informed Esfahani that he would need the ARB's approval to install the palm trees. Similarly, in Grove Hill, we noted:

"The [homeowners] admitted that, despite knowing that their driveway would be modified with materials different from every other driveway in the subdivision, they did not seek preapproval of their modification plan from the Architectural Review Committee ... in clear violation of ... the restrictive covenants. The [homeowners] simply failed to take the restrictive covenants into consideration before modifying the driveway."

Id. at 738.

On this point, Esfahani argues that, "[a]lthough he had notice of the requirement in the covenants that a landscape plan should be submitted to the ARB for approval, the undisputed evidence is that Esfahani was told that he did not have to submit a landscaping plan," and he cites his testimony regarding his conversations with Miller shortly after purchasing his property, during which Miller had reportedly indicated that Esfahani would not need to obtain permission to alter the landscaping on his property. In light of that evidence, Esfahani says, "[t]he ARB negated [his] notice of the covenants." Esfahani cites no authority in support of this argument.

"[A]n appellate court has no duty to perform a litigant's legal research. Legal Systems, Inc. v. Hoover, 619 So.2d 930 (Ala. Civ. App. 1993) ; Lockett v. A.L. Sandlin Lumber Co., 588 So.2d 889 (Ala. Civ. App. 1991) ; and Moats v. Moats, 585 So.2d 1386 (Ala. Civ. App. 1991). Similarly, appellate courts do not, 'based on undelineated propositions, create legal arguments for the appellant.' McLemore v. Fleming, 604 So.2d 353, 353 (Ala. 1992). This court will address only those issues properly presented and for which supporting authority has been cited. Simonton v. Carroll, 512 So.2d 1384 (Ala. Civ. App. 1987)."

Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala. Civ. App. 1996). We also note, however, that Section 15.03 of Steelwood's declaration specifically provides, in relevant part: "[F]ailure by the Association or any Member or the Developer to enforce any covenant or restriction herein contained for any period of time shall in no event be deemed a waiver or estoppel of the right of any of the foregoing to enforce the same thereafter." We will not, therefore, reverse the trial court's judgment based on Esfahani's unsupported assertion that his conversations with Miller had "negated" his notice of the restrictive covenants.

In his reply brief, Esfahani alternatively asserts that the appropriate remedy for his failure to submit a landscaping plan to the ARB would have been an injunction requiring him to do so, as opposed to an injunction requiring him to remove the palm trees. Again, Esfahani cites no authority in support of his contention. See id.

We again note, however, that Section 15.03 of Steelwood's declaration specifically provides, in relevant part: "This Declaration shall be enforceable ... by a proceeding at law or in equity against any person or persons violating or attempting to violate or circumvent any covenant or restriction, either to restrain violation or to recover damages ...." (Emphasis added.) Section 13.08, by reference to Section 13.07, also specifically authorizes the ARB to require removal of landscaping that has been installed without the ARB's approval.

Sections 7.01 and 13.08 did not require only that Esfahani submit a landscaping plan to the ARB for approval at some time; they required Esfahani to obtain the ARB's approval before altering his landscaping. Thus, an injunction requiring only the submission of a landscaping plan would not remedy Esfahani's breach of Sections 7.01 and 13.08, which expressly delegate to the ARB authority to decide whether particular landscape features should be present in Steelwood in the first place. In essence, Esfahani's primary contention on appeal is that, based on the language of the restrictive covenants set out in Steelwood's declaration, he could not have known in advance that planting palm trees on his property would not be allowed. The majority considered a similar point raised by the dissent in Grove Hill and ultimately concluded:

"[T]he law does not place the onus on the enforcer of restrictive covenants to warn violators thereof that they may not be in compliance, particularly in circumstances such as those in the present case, where restrictive covenants require homeowners to gain preapproval of any improvements. Had the [homeowners] obtained such preapproval, any resulting damages could have been avoided."

90 So.3d at 738. In light of the foregoing, we will not reverse the portion of the trial court's judgment requiring that Esfahani remove the palm trees at issue.

Esfahani next argues that the trial court erred by ordering him to pay the Association's attorney fees and cites as support Willow Lake Residential Association, Inc. v. Juliano, 80 So.3d 226 (Ala. Civ. App. 2010).

"Attorney fees are recoverable under Alabama law as part of the costs of an action only where they are authorized by statute, where they are provided for in a contract, or where they can be awarded by special equity, such as a proceeding where the efforts of an attorney create a fund out of which fees may be paid."

Hart v. Jackson, 607 So.2d 161, 163-64 (Ala. 1992).

In its judgment, the trial court cited the Association's bylaws as the basis for its award of attorney fees. In its appellate brief, the Association cites Article XII of its bylaws as supporting the trial court's decision; Article XII provides, in relevant part:

"B. Enforcement of Rules and Regulations.... [T]he Board shall have the power, upon any violation of the Declaration, the By-Laws, or any rules and regulations duly adopted hereunder, (1) to impose reasonable monetary fines which shall constitute a lien upon the property of the owner guilty of such violation which shall be enforceable in like manner to the lien for assessments provided for in the Declaration ...."

The Association cites Section 11.01 of Steelwood's declaration for an explanation of the procedure regarding liens for assessments, which, in relevant part, provides that the cost of attorney fees stemming from collection actions may be added to the amount of assessments. Additionally, the Association cites Section 15.03 of Steelwood's declaration, which authorizes it to recover damages for the breach of the restrictive covenants. The Association also relies on portions of Miller's testimony, wherein he opined that the Association was entitled to recover attorney fees in actions of this nature.

The record reveals no monetary fine imposed on Esfahani by the Association to which its attorney fees could be added in a like manner to the procedure set out in Section 11.01 of Steelwood's declaration. Insofar as the Association's complaint included a request that the trial court determine such a fine, the judgment includes no such determination. In other words, the Association has obtained only injunctive relief against Esfahani. The Association's bylaws and Section 11.01 of Steelwood's declaration contemplate an award of attorney fees only in addition to an established fine or assessment, i.e., arising out of a successful collection action. Moreover, attorney fees are not generally recoverable as damages, which renders Section 15.03 of Steelwood's declaration inapplicable here. See Austin Apparel, Inc. v. Bank of Prattville, 872 So.2d 158, 165-66 (Ala. 2003).

Esfahani contrasts the provisions in this case with those of the residential association in Willow Lake, 80 So.3d at 243, where we reversed a trial court's failure to award the residential association attorney fees. In Willow Lake, we noted:

"Section 5.13 provides, in pertinent part:
" 'All costs and expenses incurred by the ARC or the Association in enforcing any of the provisions of this Article V ... shall be paid by said Owner.'
"Section 12.02 provides, in pertinent part:
" '[I]n the event the ... Board [of the Association] ... undertake[s] any legal or equitable action which [the Board] deem[s] necessary to abate, enjoin, remove or extinguish any violation or breach of this Declaration, then all costs and expenses incurred by either of them, including, without limitation, attorneys' fees and court costs, in enforcing any of the terms, provisions, covenants or conditions in this Declaration shall be paid for by the Owner against whom such action was initiated.' "

80 So.3d at 240.

We agree with Esfahani. As already noted, the Association's bylaws and Steelwood's declaration were incorporated into Esfahani's deed by reference.

"It is well-settled that when there is no ambiguity in the language of a deed, a court must give effect to the clear and plain terms. African Methodist Episcopal Church v. Saint Paul Methodist Church of Selmont, 362 So.2d 868, 871 (Ala. 1978). Furthermore, '[w]here the language in a deed is plain and certain, acts and declarations of the parties cannot be resorted to to aid a construction.' Kennedy v. Henley, 293 Ala. 657, 662, 309 So.2d 435, 439 (1975)."

Philpot v. State, 843 So.2d 122, 125 (Ala. 2002). The plain language of neither the Association's bylaws nor Steelwood's declaration authorize an award of attorney fees in actions involving only injunctive relief, i.e., actions involving neither a fine nor an assessment. The trial court's award of attorney fees to the Association is therefore reversed, and we remand this case for the trial court to enter a judgment consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      The trial court entered an order on July 21, 2017, directing the Association to respond to Esfahani's motion within 21 days. On July 25, 2017, Esfahani filed another motion, noting that the provisions of the trial court's judgment had effectively stayed its injunctive aspects for a period of 45 days and that its July 21, 2017, order had asked the Association to respond to Esfahani's postjudgment motion within 21 days, which would have been more than 45 days after the judgment was entered. Esfahani therefore again asked the trial court to stay enforcement of its judgment pending a resolution of his postjudgment motion. The Association responded to Esfahani's July 25, 2017, motion. On August 8, 2017, the trial court entered an order denying Esfahani's July 25, 2017, motion.

      As already noted, Section 13.08 of Steelwood's restrictive covenants delegates to the ARB decision-making authority regarding landscaping installed on property located in Steelwood. The trial court cited Grove Hill Homeowners' Association, Inc. v. Rice, 43 So.3d 609 (Ala. Civ. App. 2010), to articulate its standard of review. See id. at 613 (" 'Where, as here, the declaration delegates decision-making authority to a group and that group acts, the only judicial issues are whether the exercise of that authority was procedurally fair and reasonable, and whether the substantive decision was made in good faith, and is reasonable and not arbitrary and capricious.' " (quoting Saunders v. Thorn Woode P'ship, L.P., 265 Ga. 703, 704, 462 S.E.2d 135, 137 (1995) ) ).

      In several places in his appellate briefs, Esfahani asserts that the trial court erred by finding that he had never submitted a landscaping plan to the ARB, in light of the evidence presented demonstrating that Esfahani had, in fact, done so after installing the palm trees at issue. Admittedly, the trial court's judgment recounts Miller's interaction with Esfahani upon delivery of the palm trees and expressly states: "At no time thereafter did [Esfahani] present his plan to plant the trees permanently to the [ARB]."
      Given the trial court's acknowledgment that the ARB had approved the palm trees installed near Esfahani's pool, we do not view the trial court's statement as a finding that the ARB was never made aware of Esfahani's plan to permanently install the palm trees at issue, especially because this action was initiated as a result of that decision. We instead view that statement as a finding that Esfahani did not inform the ARB of his decision to permanently install the palm trees before doing so. Insofar as the trial court reached an erroneous finding regarding whether Esfahani ever submitted a landscaping plan, however, we have been presented with no basis to reverse its judgment on that ground, and it is undisputed that Esfahani did not obtain the ARB's approval before installing the palm trees at issue.


source: Caselaw Access Project

author: KELLUM, Judge. JOINER, Judge, dissenting.

license: Public Domain

text:
    Karim Theoupilus ANTHONY v. STATE of Alabama
    CR-17-0587
    Court of Criminal Appeals of Alabama.
    August 10, 2018
    Marie Crissone of The Messervy Firm, Huntsville, for appellant.
    Steve Marshall, atty. gen., and Ferris W. Stephens, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Karim Theoupilus Anthony, appeals from the circuit court's revocation of his probation. On February 25, 2016, Anthony was convicted of burglary in the third degree, a violation of § 13A-7-7, Ala. Code 1975. The circuit court sentenced Anthony to 10 years' imprisonment, suspended that sentence, and sentenced Anthony to 4 years' supervised probation. The court ordered Anthony to pay $13,768.17 in restitution and other court-ordered moneys.

On September 12, 2017, probation officer Christopher Simpson filed a delinquency report alleging that Anthony had violated the terms and conditions of his probation by failing to report to his probation officer. Based on this violation, Simpson recommended that Anthony serve a "45-day dunk" in the custody of the Alabama Department of Corrections.

On February 4, 2018, probation officer Franklin Holdren filed a supplemental delinquency report alleging that Anthony violated the terms and conditions of his probation based on new criminal charges of aggravated child abuse and burglary in the third degree. Holdren further alleged that Anthony failed to pay his probation-supervision fees and his court-ordered moneys. Holdren recommended the revocation of Anthony's probation based on his criminal history, recent arrests, and "continued defiant behavior toward probation." (C. 31.)

On February 5, 2018, Holdren issued a notice of court hearing to Anthony. In the notice, Holdren noted that probation-violation reports had been prepared on September 12, 2017, and February 4, 2018, alleging that Anthony had violated his probation, and that the officer had provided copies of those two reports to Anthony. Anthony signed the notice on February 5, 2018, indicating that he had received the two reports, that he had read or had had the reports read to him, and denied the allegations set forth in those reports.

On February 14, 2018, Anthony and his appointed counsel appeared before the circuit court for an initial-appearance hearing. At the hearing, the circuit court informed Anthony again of the probation violations alleged in both the September 12, 2017, and the February 4, 2018, reports. Anthony indicated that he had received a copy of the reports and that he understood the charges against him. Anthony denied the charges, and the circuit court scheduled an expedited probation-revocation hearing.

On February 21, 2018, the circuit court conducted a probation-revocation hearing at which Anthony was represented by counsel. At the hearing, Anthony indicated a desire to admit to the technical violations alleged against him. Following a colloquy pursuant to Rule 27.6(c), Ala. R. Crim. P., Anthony admitted to violating his probation by failing to report to his probation officer, failing to pay probation-supervision fees, and failing to pay court-ordered moneys. Based on Anthony's admission, the circuit court entered an order revoking Anthony's probation. The circuit court ordered Anthony to serve the balance of his 10-year sentence in the custody of the Alabama Department of Corrections. Anthony filed a motion to reconsider in which he argued that he had no notice of the alleged violations in the February 4, 2018, supplemental delinquency report. On March 1, 2018, the circuit court entered an order denying the motion to reconsider. This appeal followed.

I.

Anthony contends that the circuit court erred by revoking his probation without conducting a probation-revocation hearing with regard to the two new criminal charges alleged in the supplemental delinquency report. Anthony contends that "[d]efense counsel erroneously believed that the admission to technical charges would result in a 45 day jail sentence and was unaware that admission to the technical offenses could have resulted in [Anthony's probation] being revoked to serve the balance of his original sentence." (Anthony's brief, p. 13.) Anthony maintains that the circuit court "should have properly addressed the confusion and [Anthony's] repeated averments that he denied committing the new charges by conducting a probation revocation hearing on the new charges." (Anthony's brief, p. 13.)

Section 15-22-54, Ala. Code 1975, requires a hearing as a prerequisite to the revocation of probation. See also Hollins v. State, 737 So.2d 1056, 1057 (Ala. Crim. App. 1998) ("The minimal due process to be accorded a probationer before his probation can be revoked includes ... an opportunity to be heard in person and to present witnesses and documentary evidence, the right to confront and to cross-examine adverse witnesses, [and] a neutral and detached hearing body such as a traditional parole board ...."). However, "[b]ecause probation itself is an act of grace, a probation revocation hearing does not require all of the formalities of a criminal trial." Lindsey v. State, 768 So.2d 408, 412 (Ala. Crim. App. 1998) (citing Williams v. State, 673 So.2d 829, 830 (Ala. Crim. App. 1995) ). Indeed, "[f]ormal procedures and rules of evidence are not employed in probation revocation hearings." Williams v. State, 673 So.2d at 830.

The record indicates that Anthony initially denied the alleged probation violations and the circuit court set the matter for a probation-revocation hearing. At the hearing, defense counsel informed the circuit court that Anthony wished to change his plea solely with regard to the technical violations. Following a colloquy pursuant to Rule 27.6(c), Ala. R. Crim. P., Anthony admitted to the technical violations of his probation as alleged in the delinquency report. At his probation-revocation hearing, Anthony was present and represented by counsel, was afforded an opportunity to be heard in person, and to present witnesses and documentary evidence. Instead of presenting witnesses and documentary evidence, however, Anthony chose to admit to the alleged technical violations. Although Anthony did not admit to committing the new criminal offenses, his admission to the technical violations was sufficient for the circuit court to revoke Anthony's probation. Therefore, contrary to Anthony's contention otherwise, the record on appeal indicates that the circuit court did, in fact, conduct a probation-revocation hearing.

To the extent Anthony suggests that he was forbidden from being heard on the new criminal charges based on confusion regarding the recommended "45-day dunk," the record indicates that both the September 12, 2017, and February 4, 2018, delinquency reports alleged technical violations and that each was prepared by a different probation officer. In the September 12, 2017, delinquency report, the probation officer recommended a "45-day dunk," and, in the February 4, 2018, delinquency report, the probation officer recommended the full revocation of Anthony's probation. The record indicates that Anthony and his defense counsel were aware of all charges and that Anthony, at the very least, received copies of both delinquency reports.

This Court has recognized that " '[a]bsent a gross abuse of discretion, the trial court's ruling in a probation revocation will not be disturbed by this Court. Wright [v. State, 349 So.2d 124 (Ala. Crim. App. 1977) ].' " Ex parte Caffie, 516 So.2d 831, 833-34 (Ala. 1987) (quoting Rice v. State, 429 So.2d 686, 687 (Ala. Crim. App. 1983) ). " 'A trial court abuses its discretion only when its decision is based on an erroneous conclusion of law or where the record contains no evidence on which it rationally could have based its decision.' " McCain v. State, 33 So.3d 642, 647 (Ala. Crim. App. 2009) (quoting Holden v. State, 820 So.2d 158, 160 (Ala. Crim. App. 2001) ). Given the discretion afforded a circuit court in revoking probation, this Court will not reverse the circuit court's judgment and Anthony is not entitled to relief on this claim.

II.

Anthony also contends that the circuit court erred by failing to "provide an adequate written statement as to the evidence relied on and the reasons for revoking [his] probation." (Anthony's brief, p. 15.) Citing McCoo v. State, 921 So.2d 450 (Ala. 2005), Anthony contends that the circuit court failed to explain why it chose to impose the balance of the original 10-year sentence instead of ordering Anthony to serve a "45-day dunk" as recommended by the probation officer in the first delinquency report.

Rule 27.6(f), Ala. R. Crim. P., provides that, when revoking probation, "[t]he judge shall make a written statement or state for the record the evidence relied upon and the reasons for revoking probation." In McCoo v. State, 921 So.2d 450 (Ala. 2005), the Alabama Supreme Court held:

"It follows that the requirement of Wyatt [v. State, 608 So.2d 762 (Ala. 1992),] and its associated cases -- that the trial court enter a written order stating its reasons for the revocation and the evidence relied upon regardless of the state of the record -- is no longer applicable. Henceforth, the Court of Criminal Appeals may determine, upon a review of the record, whether the requisite Rule 27. 6(f)[, Ala. R. Crim. P.,] statements are presented by that record. Thus, the Court of Criminal Appeals may examine the record and conclude that 'oral findings, if recorded or transcribed, can satisfy the requirements of Morrissey [v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed. 2d 484 (1972),] when those findings create a record sufficiently complete to advise the parties and the reviewing court of the reasons for the revocation of supervised release and the evidence the decision maker relied upon.' [United States v.] Copeland, 20 F.3d [412,] 414 (11th Cir. 1994) ].
"We hasten to note that our holding in this case does not diminish the duty of the trial court to take some affirmative action, either by a statement recorded in the transcript or by written order, to state its reasons for revoking probation, with appropriate reference to the evidence supporting those reasons. The requirements of Wyatt will still be fully applicable in those situations where the record, for lack of transcription of the revocation hearing or for some other reason, fails to clearly and unambiguously set forth the reasons for the revocation and the evidence that supported those reasons. Thus, the requirements of Wyatt are fully applicable to the trial court's order of revocation where the record fails to comply with Rule 27.6(f)."

McCoo v. State, 921 So.2d 450, 462-63 (Ala. 2005).

In this case, the circuit court provided the reasons for revoking Anthony's probation orally on the record and in written form in the court's probation-revocation order. At the conclusion of the probation-revocation hearing, the circuit court revoked Anthony's probation based on his admission to committing technical violations of his probation. The circuit court indicated Anthony's admission was the basis for its revocation of Anthony's probation in its February 21, 2018, written order. Therefore, the circuit court's probation-revocation order satisfied the requirements of Rule 27.6(f), Ala. R. Crim. P., and McCoo. Furthermore, contrary to Anthony's contention otherwise, neither Rule 27.6 nor McCoo requires a circuit court to set forth its reasoning for imposing the original underlying sentence in a probation-revocation hearing.

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

AFFIRMED.

Windom, P.J., and Welch and Burke, JJ., concur. Joiner, J., dissents, with opinion.

JOINER, Judge, dissenting.

This Court affirms the circuit court's revocation of Karim Theoupilus Anthony's probation. In doing so, this Court specifically holds that Anthony's admission to technical violations of his probation under § 15-22-54(e), Ala. Code 1975, was sufficient for the circuit court to revoke his probation and to order him to serve the balance of his 10-year sentence. 271 So.3d at 856 ("[Anthony's] admission to the technical violations was sufficient for the circuit court to revoke Anthony's probation.").

This Court has previously recognized that a defendant's probation cannot be revoked based solely on an admitted technical violation. See T.D.M. v. State, 224 So.3d 205, 209 (Ala. Crim. App. 2016) (citing § 15-22-54(e)(1), Ala. Code 1975 ). Section 15-22-54(e)(1), Ala. Code 1975, states:

"Unless the underlying offense is a violent offense as defined in Section 12-25-32 and classified as a Class A felony, when a defendant under supervision for a felony conviction has violated a condition of probation, other than arrest or conviction of a new offense or absconding, the court may impose a period of confinement of no more than 45 consecutive days to be served in the custody population of the Department of Corrections.... The court shall not revoke probation unless the defendant has previously received a total of three periods of confinement under this subsection. For purposes of revocation, the court may take judicial notice of the three total periods of confinement under this subsection. A defendant shall only receive three total periods of confinement under this subsection. The maximum 45-day term of confinement ordered under this subsection for a felony shall not be reduced by credit for time already served in the case. Any such credit shall instead be applied to the suspended sentence. In the event the time remaining on the imposed sentence is 45 days or less, the term of confinement shall be for the remainder of the defendant's sentence."

(Emphasis added.) Thus, the circuit court could have revoked Anthony's probation only if he had previously violated his probation and received a total of three periods of confinement under this subsection. The record indicates, however, that this was Anthony's first time violating his probation. Accordingly, the circuit court was permitted to order him to serve only up to 45 days in confinement.

The main opinion asserts that the issue whether the circuit court could revoke Anthony's probation based solely on technical violations has not been raised on appeal. I disagree. Anthony's argument in the trial court and in this Court is that the circuit court could not revoke his probation based on the alleged commission of new offenses without holding a hearing on the charges that he violated his probation by committing new offenses. In both this Court and the circuit court, Anthony's argument assumes--correctly--that § 15-22-54(e)(1) prohibits the circuit court from revoking probation based solely on the commission of technical violations in a circumstance like Anthony's. Anthony's argument that was presented in the trial court and that is presented on appeal makes no sense if the circuit court had the authority to revoke his probation based solely on technical violations.

Contrary to the main opinion's assessment of my position, I do not read § 15-22-54(e)(1), Ala. Code 1975, "as imposing a jurisdictional limitation on a circuit court's authority to fully revoke probation." 271 So.3d at 857 n.1. Section 15-22-54(e), a statute addressing sentencing, is written in mandatory terms. Anthony's case is a direct appeal of a probation revocation involving § 15-22-54(e). The argument that the circuit court could not revoke Anthony's probation based solely on technical violations is thus "a claim on direct appeal that the circuit court imposed an unauthorized sentence." Hall v. State, 223 So.3d 977, 988 (Ala. Crim. App. 2016) (Joiner, J., concurring specially). As such, the issue is one "not subject to the ordinary rules regarding preservation and waiver" and "may be raised for the first time on appeal." Id. at 986.

Perhaps Anthony's appointed trial and appellate counsel could have done a better job explaining the legal assumptions and authority undergirding his arguments. But perhaps this Court could do a better job explaining its position as well. In rejecting Anthony's argument that he was entitled to a hearing on the alleged commission of new offenses, this Court merely states: "Although Anthony did not admit to committing the new criminal offenses, his admission to the technical violations was sufficient for the circuit court to revoke Anthony's probation." 271 So.3d at 856. How so?

Regardless, because this issue involves an unauthorized sentence, this Court has the authority on direct appeal to notice the error in the circuit court's judgment. It should do so.

In sum, Anthony admitted to technical violations under the legally correct assumption that he could receive, at most, 45 days in jail. He did not receive a hearing on the charges that might have supported a revocation. Yet, his probation was revoked. Instead of getting no more than 45 days in jail, Anthony is now serving the remainder of his 10-year sentence of imprisonment. And he is doing so without the benefit of a hearing at which the State would have been required to prove to the circuit court's reasonable satisfaction that Anthony violated the terms of his probation by committing new offenses.

I respectfully dissent.

      The dissent relies on a single sentence in T.D.M. v. State, 224 So.3d 205, 208-09 (Ala. Crim. App. 2016), -- a case in which the author of this opinion did not sit -- in which this Court noted that probation cannot be fully revoked based solely on technical violations. However, that single sentence is obiter dictum; it was completely unnecessary for the resolution of the appeal in T.D.M., in which the defendant's probation was revoked solely on new offenses. Moreover, even if this Court were to agree that the circuit court erred in fully revoking probation based on Anthony's technical violations, that issue is not raised on appeal and, unlike the dissent, we do not read § 15-22-54(e)(1), Ala. Code 1975, as imposing a jurisdictional limitation on a circuit court's authority to fully revoke probation. See, e.g., Hall v. State, 223 So.3d 977, 981 (Ala. Crim. App. 2016) (recognizing that merely because a statute is written in mandatory terms does not make that statute jurisdictional).


author: JOINER, Judge. WINDOM, Presiding Judge, dissenting.

text:
    Jody Alan MEAD v. STATE of Alabama
    CR-17-0592
    Court of Criminal Appeals of Alabama.
    August 10, 2018
    Thomas E. Drake II of The Drake Law Firm, Cullman, for appellant.
    Steve Marshall, atty. gen., and Robin D. Scales, asst. atty. gen., for appellee.
   JOINER, Judge.

Jody Alan Mead appeals the Circuit Court's order revoking his probation. On October 28, 2016, Mead pleaded guilty to three counts of first-degree theft of property, see § 13A-8-3, Ala. Code 1975. He was initially sentenced to 84 months' imprisonment; that sentence was split, and Mead was to serve 15 months' imprisonment followed by 5 years' supervised probation. Mead did not appeal his convictions and sentence.

Mead began serving the probationary period of his sentence on September 22, 2017. On December 15, 2017, Mead's probation officer, Shannon Hale, filed a delinquency report alleging that Mead had violated the terms and conditions of his probation. Specifically, the report alleged that Mead: (1) had committed the new offense of second-degree domestic violence, see § 13A-6-131, Ala. Code 1975, and (2) had failed to report as directed. As a result of the delinquency report, Mead was arrested on December 27, 2017.

On March 14, 2018, the circuit court conducted a probation-revocation hearing at which Mead was present and represented by counsel. During that hearing, the State presented testimony from only Deputy Chris Cahoon with the Cullman County Sheriff's Office.

Deputy Cahoon testified that, on December 1, 2017, he was dispatched to the Cullman Regional Medical Center concerning a possible "domestic disturbance." (R. 6-7.) When he arrived at the hospital, Deputy Cahoon stated, he spoke with the nurses who told him that a woman had been brought to the hospital with "extreme road rash and trauma to her head." (R. 7-8.) Deputy Cahoon further testified that, according to the nurses, the woman had said that she had been "pushed from a vehicle." (R. 8.)

In light of that information, Deputy Cahoon decided to speak with the victim whom he identified as Lisa McClendon. According to Deputy Cahoon, McClendon was initially afraid to tell him what happened. She later told him, however, that, earlier that day she had borrowed Mead's truck and had failed to return it at the time he had told her to do so. McClendon also told him that, when she eventually returned the truck to Mead, he was "highly irate," which led to an argument. (R. 8-9.)

Deputy Cahoon also testified that McClendon had told him that, at some point, Mead's father, who lived across the street from Mead, told Mead to take McClendon home. McClendon told Deputy Cahoon that, as they drove down County Road 1545, Mead reached over, opened the truck door, and pushed McClendon out onto the roadway. After that happened, McClendon told Deputy Cahoon that Mead's father picked her up, drove her to the hospital, and then left. Deputy Cahoon testified that, when he interviewed her, McClendon had a massive wound on the top of her head that, he said, looked like a "gunshot wound." (R. 9.) He further stated that she had a rash all down her face and down the side of her body.

After speaking with McClendon, Deputy Cahoon contacted her stepmother, Linda, to ask if she could pick up McClendon from the hospital. When she arrived, Linda told Deputy Cahoon that Mead had telephoned her earlier that evening and that he had been irate and screaming about McClendon having his truck. Deputy Cahoon testified that Linda had told him that she was "scared that when [McClendon]--if she showed back up that ... harm would come to her, and it wouldn't be the first time that [Mead and McClendon] had been in a physical domestic situation." (R. 10.)

Deputy Cahoon testified that, following that conversation, he made contact with Mead at an address off County Road 1545 and arrested him for second-degree domestic violence. According to Deputy Cahoon, as he was driving Mead to the county jail, Mead told him that McClendon was the one who had opened the door and jumped out of the truck.

After the State rested its case, Mead's defense counsel objected to the State's use of hearsay to satisfy its burden of proof. That objection was overruled. Mead did not offer any evidence or testimony in his own defense.

After hearing the above testimony from Deputy Cahoon, the circuit court found that it was reasonably satisfied that Mead had violated the terms and conditions of his probation by committing the new offense of second-degree domestic violence and by failing to report as directed. The court revoked Mead's probation and ordered him to serve his original sentence of 84 months' imprisonment with credit for time served. Thereafter, Mead filed a timely notice of appeal.

I.

Mead argues that the circuit court lacked the authority to revoke his probation for "failing to report as directed." (Mead's brief, pp. 9-11.) Specifically, Mead argues that, before his probation officer filed her delinquency report against him in December 2017, he had never received a copy of the "Order of Probation" containing the terms and conditions of his probation. Id. As a result, Mead contends, his probation should not have been revoked. Id.

Initially, we note that this argument has not been preserved for appellate review. It is well settled that " '[t]o preserve an issue for appellate review, the issue must be timely raised and specifically presented to the trial court and an adverse ruling obtained.' " Cochran v. State, 111 So.3d 148, 153 (Ala. Crim. App. 2012) (quoting Mitchell v. State, 913 So.2d 501, 505 (Ala. Crim. App. 2005) ). Additionally,

" '[t]he general rules of preservation apply to probation revocation hearings. Puckett v. State, 680 So.2d 980, 983 (Ala. Cr. App. 1996), citing Taylor v. State, 600 So.2d 1080, 1081 (Ala. Cr. App. 1992). This Court "has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation ..., and (2) the requirement that a revocation hearing actually be held." Puckett, 680 So.2d at 983.' "

Bauer v. State, 891 So.2d 1004, 1006 (Ala. Crim. App. 2004) (quoting Owens v. State, 728 So.2d 673, 680 (Ala. Crim. App. 1998) ). This Court has also recognized a third exception that a defendant can raise for the first time on appeal--namely, that the circuit court failed to advise the defendant of his or her right to request an attorney during the probation-revocation proceedings. See Croshon v. State, 966 So.2d 293 (Ala. Crim. App. 2007). A fourth exception to the preservation rule also allows a defendant to raise for the first time on appeal the allegation that the circuit court erred in failing to appoint counsel to represent him or her during the probation-revocation proceedings. See Ex parte Dean, 57 So.3d 169 (Ala. 2010).

Nothing in the record before us indicates that Mead timely raised an objection to the circuit court's revocation of his probation on the basis that he never received the "Order of Probation" containing the terms and conditions of his probation or that, if he did, an adverse ruling was obtained. Importantly, none of the exceptions to the preservation requirement that are applicable to probation-revocation hearings, which we have discussed above, actually apply to this issue. Thus, this issue is not properly before this Court for appellate review, and Mead is not entitled to relief on this issue.

II.

Mead also argues that the circuit court erroneously relied solely on hearsay evidence to revoke his probation based on the second-degree domestic-violence offense. According to Mead, the State's evidence against him consisted only of the testimony given by Deputy Cahoon who testified about statements that were made to him by specific witnesses during the course of his investigation. Mead contends that, because that evidence was hearsay and was the only evidence presented by the State to prove that he had violated his probation by committing a new offense, his probation should not have been revoked. (Mead's brief, pp. 11-13.) We agree.

It is well settled that

" ' "[p]robation or suspension of sentence comes as an act of grace to one convicted of, or pleading guilty to, a crime. A proceeding to revoke probation is not a criminal prosecution, and we have no statute requiring a formal trial. Upon a hearing of this character, the court is not bound by strict rules of evidence, and the alleged violation of a valid condition of probation need not be proven beyond a reasonable doubt." '
" Martin v. State, 46 Ala. App. 310, 312, 241 So.2d 339, 341 (Ala. Crim. App. 1970) (quoting State v. Duncan, 270 N.C. 241, 154 S.E.2d 53 (1967) (citation omitted) ). Under that standard, the trial court need 'only be reasonably satisfied from the evidence that the probationer has violated the conditions of his probation.'
Armstrong v. State, 294 Ala. 100, 103, 312 So.2d 620, 623 (1975). Absent a clear abuse of discretion, a reviewing court will not disturb the trial court's conclusions. See Moore v. State, 432 So.2d 552, 553 (Ala. Crim. App. 1983), and Wright v. State, 349 So.2d 124, 125 (Ala. Crim. App. 1977)."

Ex parte J.J.D., 778 So.2d 240, 242 (Ala. 2000). In Alabama, " '[t]he law is clear that the formality and evidentiary standards of a criminal trial are not required in parole revocation hearings.' " Puckett v. State, 680 So.2d 980, 981 (Ala. Crim. App. 1996) (quoting Ex parte Belcher, 556 So.2d 366, 368 (Ala. 1989) ). A revocation proceeding is "a bench trial and the trial court is the sole fact-finder." Ex parte Abrams, 3 So.3d 819, 823 (Ala. 2008). " 'It is not necessary in a probation revocation hearing to provide proof beyond a reasonable doubt or by a preponderance of the evidence. Rather, the lower court need only be "reasonably satisfied from the evidence that the probationer has violated the conditions of his probation." ' " Puckett, 680 So.2d at 982 (quoting Mitchell v. State, 462 So.2d 740, 742 (Ala. Crim. App. 1984) ).

With regard to the admissibility of hearsay evidence at a probation-revocation hearing, this Court has previously stated that such evidence may be admitted at the discretion of the circuit court. See Puckett, 680 So.2d at 981-82. It is well settled, however, that

"hearsay evidence may not form the sole basis for revoking an individual's probation. See Clayton v. State, 669 So.2d 220, 222 (Ala. Cr. App. 1995) ; Chasteen v. State, 652 So.2d 319, 320 (Ala. Cr. App. 1994) ; and Mallette v. State, 572 So.2d 1316, 1317 (Ala. Cr. App. 1990). 'The use of hearsay as the sole means of proving a violation of a condition of probation denies a probationer the right to confront and to cross-examine the persons originating information that forms the basis of the revocation.' Clayton, 669 So.2d at 222."

Goodgain v. State, 755 So.2d 591, 592 (Ala. Crim. App. 1999).

Under the Alabama Rules of Evidence, hearsay is defined as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Rule 801(c), Ala. R. Evid. Although hearsay is inadmissible, there are some forms of evidence that have been deemed to be exemptions from or exceptions to this general rule. See Rules 802 and 803, Ala. R. Evid.

On appeal, Mead contends that the circuit court relied solely on hearsay statements relayed by Deputy Cahoon during his testimony at Mead's probation-revocation hearing. Specifically, Deputy Cahoon testified that, during the course of his investigation, he spoke with nurses at the Cullman Regional Medical Center about a woman who had been brought to the hospital with "extreme road rash and trauma to her head." (R. 7-8.) In light of that information, Deputy Cahoon then spoke with that woman who was later identified as McClendon. During his testimony, Deputy Cahoon relayed the statements that McClendon had made to him about what had happened to her. Deputy Cahoon also testified that he spoke with McClendon's stepmother, Linda, who told him how she feared that Mead was going to harm McClendon after he telephoned her and threatened to harm McClendon. Finally, he testified that, while transporting Mead to the county jail, Mead told him that McClendon jumped from his truck on her own volition.

Mead is correct in his assertion that the State did not offer any nonhearsay evidence to prove that Mead violated the terms and conditions of his probation by committing the new domestic-violence offense. Thus, the circuit court erred in revoking Mead's probation on that basis. Accordingly, the circuit court's order of March 14, 2018, revoking Mead's probation is reversed, and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Welch, Kellum, and Burke, JJ., concur. Windom, P.J., dissents, with opinion.

WINDOM, Presiding Judge, dissenting.

I agree with the majority's holding that Jody Alan Mead's new offense of second-degree domestic violence was supported only by hearsay and that the circuit court erred in revoking Mead's probation on that ground. However, Mead's probation was revoked for an additional ground -- his failure to report as directed. Because Mead has no claim properly before this Court challenging the circuit court's revocation on that ground, I would affirm the circuit court's judgment.

Therefore, I respectfully dissent.

      Even if this issue had been properly preserved for appellate review, Mead would not be entitled to relief on this issue. The record indicates that Mead began serving his probation on September 22, 2017. (C. 75.) It also indicates that, on October 17, 2017, Mead signed and received a copy of the court's "Order of Probation" containing the terms and conditions of his probation. (C. 81.) This occurred more than two months before his probation officer filed her delinquency report alleging that Mead had failed to report as directed.


text:
    FLORIDA BOARD OF BAR EXAMINERS RE: J.R.M.
    CASE NO.: SC19-916
    Supreme Court of Florida.
    JUNE 11, 2019
    Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board's recommendation is approved by the Court and J.R.M. shall be admitted to The Florida Bar subject to the following conditions:
    1. The applicant's license to practice law shall be placed on probation for a period of five years from January 26, 2018.
   2. During the period of probation, the applicant shall:

(a) abstain from the consumption of alcoholic beverages;
(b) abstain from the use of controlled substance except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance (FLA);
(c) participate actively in the program offered by FLA during the entire probationary period by complying with the rehabilitation contract with that organization executed on January 26, 2018, and by extending the contract to cover the entire period of probation if necessary;
(d) participate actively in Alcoholics/Narcotics Anonymous by attending, at least, weekly meetings at such frequency as required by FLA; practice AA/NA principles in all of his affairs; and carry the AA/NA message to other individuals with a substance abuse disorder;
(e) attend attorney support meetings at least monthly, or at such greater frequency as required by FLA;
(f) submit to and pay for a minimum of eight (8) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by FLA; and
(g) submit to quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2 (a), (b), (c), (d), (e), and (f) above.

3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule 1-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.

4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate his license.

5. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the applicant's practice of law.

6. If the applicant's license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

7. A failure to observe the conditions of the probation or a finding of probable cause by The Florida Bar as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court's order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.

8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. By executing this Agreement, the applicant acknowledges that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 7 or 8 above, the applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.

10. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant's file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.

A True Copy

Test:

John A. Tomasino

Clerk, Supreme Court


author: PER CURIAM.

text:
    Vinodh M. RAGHUBIR, Petitioner, v. STATE of Florida, Respondent.
    No. SC18-825
    Supreme Court of Florida.
    August 30, 2018
    Vinodh M. Raghubir, pro se, Cross City, Florida, for Petitioner
    No appearance for Respondent
   PER CURIAM.

This case is before the Court on the pro se petition of Vinodh Raghubir for a writ of mandamus. We have jurisdiction. See art. V, § 3(b)(8), Fla. Const. Petitioner Raghubir has pro se filed forty-two petitions or notices with this Court since May 2017. On June 11, 2018, we dismissed the instant petition, expressly retained jurisdiction, and ordered Raghubir to show cause why he should not be barred from filing further pro se requests for relief in this Court related to circuit and district court case numbers 482016CF001833000AOX, 482016CF005231000AOX, 5D17-3644, and 5D17-912. See Raghubir v. State , 252 So.3d 692 (Fla. 2018). We now find that Raghubir has failed to show cause why he should not be barred, and we sanction him as set forth below.

In Ninth Judicial Circuit Court (Orange County) case number 16-CF-001833, Raghubir was convicted of one count of fraudulent use of personal identification information and one count of organized fraud of less than $20,000; he was sentenced to two years on each count on August 26, 2016. His convictions and sentences were per curiam affirmed on direct appeal. Raghubir v. State , 228 So.3d 579 (Fla. 5th DCA 2017) (table). In Ninth Judicial Circuit Court (Orange County) case number 16-CF-005231, Raghubir was convicted of one count of organized fraud of $50,000 or more and one count of grand theft over $20,000 and less than $100,000; he was sentenced to four years on each count on March 13, 2017. Raghubir's direct appeal of that case was dismissed by the Fifth District Court of Appeal on July 17, 2018.

Since May 2017, Raghubir has demonstrated a pattern of vexatious filing of meritless pro se requests for relief in this Court. Including the petition in the instant case, Raghubir has filed forty-two pro se notices or petitions with this Court since 2017. The Court has disposed of thirty-two of these filings to date, not including the petition in this case. This Court has never granted Raghubir the relief sought in any of his filings here. Each of the notices and petitions was denied, dismissed, or transferred to another court for consideration; his petition in this case is no exception.

Raghubir filed the instant petition for writ of mandamus with this Court on May 22, 2018. In it, Raghubir argued that the circuit court had been deceived and entered a fraudulent order. Because Raghubir had raised the same claim in Raghubir v. State , No. SC18-714 (Fla. May 16, 2018), in which the petition was transferred to the district court, on June 11, 2018, we dismissed the petition and expressly retained jurisdiction to consider the imposition of sanctions. In accordance with State v. Spencer , 751 So.2d 47 (Fla. 1999), we ordered Raghubir to show cause why he should not be barred from filing further pro se requests for relief.

Raghubir filed a response to this Court's order and a "Motion to Recuse Panel of Judges or Disqualify for All Cases Stemming from and Including 2016CF1833 and 2016CF5231." In his response, Raghubir claims that in order to determine that his pro se filings are meritless, this Court must address the merits of his claims and make relevant findings. Raghubir further claims that his cases are of great public importance, and restates the challenges to his convictions that he has raised numerous times before this Court. In his motion, Raghubir states that his pleadings clearly demonstrate fraud, deceit, collusion, and crimes committed by government actors. He further states that there is a clear conspiracy to interfere with his civil rights and that the courts have subverted impartiality and due process. Neither of Raghubir's filings contain any justification for his continued abuse of this Court's limited resources by filing numerous meritless pro se notices and petitions.

Therefore, based on Raghubir's extensive history of filing pro se petitions and requests for relief that were meritless or otherwise inappropriate for this Court's review, we now find that he has abused this Court's limited judicial resources. See Pettway v. McNeil , 987 So.2d 20, 22 (Fla. 2008) (explaining that this Court has previously "exercised the inherent judicial authority to sanction an abusive litigant" and that "[o]ne justification for such a sanction lies in the protection of the rights of others to have the Court conduct timely reviews of their legitimate filings"). If no action is taken, Raghubir will continue to burden this Court's resources.

Accordingly, we direct the Clerk of this Court to reject any future pleadings or other requests for relief submitted by Vinodh Raghubir related to circuit and district court case numbers 482016CF001833000AOX, 482016CF005231000AOX, 5D17-3644, and 5D17-912, unless such filings are signed by a member in good standing of The Florida Bar. Henceforth, Raghubir may only petition this Court through the assistance of counsel whenever such counsel determines that the proceeding may have merit and can be filed in good faith.

Raghubir's "Motion to Recuse Panel of Judges or Disqualify for All Cases Stemming from and Including 2016CF1833 and 2016CF5231" is hereby denied.

No motion for rehearing or clarification will be entertained by this Court.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

      See Raghubir v. Fla. Dep't of Corr. , No. SC18-1206, 2018 WL 3634953 (Fla. July 30, 2018) (transferring mandamus petition to circuit court); Raghubir v. Jones , No. SC18-1010, 2018 WL 3637070 (Fla. July 20, 2018) (transferring habeas petition to circuit court); Raghubir v. State , No. SC18-894, 2018 WL 3359710 (Fla. July 10, 2018) (denying mandamus petition); Raghubir v. State , No. SC18-895, 2018 WL 3342517 (Fla. July 9, 2018) (dismissing quo warranto petition); Raghubir v. State , No. SC18-893, 2018 WL 3342516 (Fla. July 9, 2018) (dismissing quo warranto petition); Raghubir v. State , No. SC18-874, 2018 WL 3343257 (Fla. July 9, 2018) (dismissing quo warranto petition); Raghubir v. State , No. SC18-873, 2018 WL 3342513 (Fla. July 9, 2018) (dismissing quo warranto petition); Raghubir v. State , No. SC18-871, 2018 WL 3342506 (Fla. July 9, 2018) (dismissing quo warranto petition); Raghubir v. State , No. SC18-870, 2018 WL 3323499 (Fla. July 6, 2018) (dismissing quo warranto petition); Raghubir v. State , No. SC18-824, 2018 WL 3323453 (Fla. July 6, 2018) (dismissing quo warranto petition); Raghubir v. State , No SC18-823, 2018 WL 3323886 (Fla. July 6, 2018) (dismissing quo warranto petition); Raghubir v. State , No. SC18-918, 2018 WL 3239288 (Fla. July 3, 2018) (denying prohibition petition); Raghubir v. State , No. SC18-1044, 2018 WL 3207130 (Fla. June 29, 2018) (dismissing petition seeking belated discretionary review for lack of jurisdiction); Raghubir v. State , No. SC18-837, 2018 WL 3159064 (Fla. June 27, 2018) (denying quo warranto petition); Raghubir v. State , No. SC18-838, 2018 WL 3159167 (Fla. June 27, 2018) (dismissing quo warranto petition as facially insufficient); Raghubir v. State , No. SC18-868, 2018 WL 3135192 (Fla. June 25, 2018) (denying prohibition petition); Raghubir v. State , No. SC18-840, 2018 WL 3013791 (Fla. June 15, 2018) (transferring quo warranto petition to the circuit court); Raghubir v. State , No. SC18-783, 2018 WL 2976026 (Fla. June 14, 2018) (dismissing quo warranto petition as facially insufficient); Raghubir v. State , No. SC18-712, 2018 WL 2427620 (Fla. May 30, 2018) (denying quo warranto petition); Raghubir v. State , No. SC18-713, 2018 WL 2427621 (Fla. May 30, 2018) (dismissing mandamus petition); Raghubir v. State , No. SC18-716, 2018 WL 2427623 (Fla. May 30, 2018) (denying quo warranto petition); Raghubir v. State , No. SC18-526, 2018 WL 2318094 (Fla. May 22, 2018) (denying mandamus petition in part, and dismissing petition in part for lack of jurisdiction); Raghubir v. State , No. SC18-704, 2018 WL 2324303 (Fla. May 22, 2018) (denying prohibition petition); Raghubir v. State , No. SC18-711, 2018 WL 2230478 (Fla. May 16, 2018) (transferring quo warranto petition to circuit court); Raghubir v. State , No. SC18-714, 2018 WL 2230720 (Fla. May 16, 2018) (transferring mandamus petition to the district court of appeal for consideration as a notice of appeal); Raghubir v. State , No. SC18-705, 2018 WL 2192456 (Fla. May 14, 2018) (transferring mandamus petition to the district court of appeal for consideration in the context of pending case number 5D17-912); Raghubir v. State , No. SC18-599, 2018 WL 1877778 (Fla. Apr. 19, 2018) (dismissing notice to invoke discretionary jurisdiction for lack of jurisdiction); Raghubir v. State , No. SC18-252, 2018 WL 1151801 (Fla. Mar. 5, 2018) (transferring prohibition petition to the district court of appeal for consideration in the context of pending case number 5D17-912); Raghubir v. State , No. SC18-228, 2018 WL 818074 (Fla. Feb. 12, 2018) (dismissing notice to invoke discretionary jurisdiction for lack of jurisdiction); Raghubir v. State , No. SC18-234, 2018 WL 824220 (Fla. Feb. 12, 2018) (dismissing notice to invoke discretionary jurisdiction for lack of jurisdiction); Raghubir v. Jones , No. SC17-893, 2017 WL 2481489 (Fla. June 8, 2017) (transferring habeas corpus petition to the district court of appeal for consideration in the context of case numbers 5D16-3298 and 5D17-912).