text:
    Ex parte Andrea MOORE. (In re Montgomery Housing Authority v. Andrea Moore).
    1020599.
    Supreme Court of Alabama.
    Oct. 31, 2003.

      Lawrence F. Gardella of Legal Services Corp. of Alabama, Montgomery, for petitioner.
    Richard G. Moxley III and Karen Ma-terna of Holloway, Elliott & Moxley, LLP, Montgomery, for respondent.
   HARWOOD, Justice.

The petitioner, Andrea Moore, a defendant in an action pending in the Montgomery Circuit Court, seeks a writ of mandamus ordering the circuit court to vacate its order denying her request for a jury trial in an eviction action brought by the Housing Authority for the City of Montgomery (“MHA”), pursuant to the Sanderson Act, Ala.Code 1975, § 35-9-80 et seq. The purpose of the Sanderson Act is to provide a more speedy remedy to a landlord for recovering possession of his or her land after expiration of a lease or when possession is wrongfully withheld by the tenant. See Garrett v. Reid, 244 Ala. 254, 13 So.2d 97 (1943). See also Riley v. Riley, 257 Ala. 636, 60 So.2d 432 (1952); Williams v. Prather, 236 Ala. 652, 184 So. 473 (1938); and Hicks v. Longfellow Dev. Co., 362 So.2d 219 (Ala.1978). The Sanderson Act also vests Alabama district courts with jurisdiction to hear cases brought under that act. Section 35-9-80 states:

“In all cases where a tenant shall hold possession of lands or tenements over and beyond the term for which the same were rented or leased to him, or after his right of possession has terminated or been forfeited, and the owner of the lands or tenements shall desire possession of the same, such owner may by himself, his agent or attorney-in-fact or attorney-at-law demand the possession of the property so rented, leased, held or occupied; and if the tenant refuses or omits to deliver possession when so demanded, the owner, his agent or attorney-at-law or attorney-in-fact may go before the district court in the county in which the land lies, and make oath of the facts.”

Section 35-9-83 provides:

“Any defendant in any such action may remove such action from the district court before whom the same is brought, to the circuit court of the county in which the real estate sued for is situated, in like manner and upon like proceedings as actions for forcible entry and detainer or unlawful detainer may now be so removed, and the trial of any such case so removed shall be conducted under like procedure and with like issues as now provided for the trial of actions of forcible entry and detainer or of unlawful detainer so removed.”

Further, § 35-9-87, states, in pertinent part:

“(a) Any party may appeal from a judgment entered against him by any district court, to the circuit court, at any time within one day after the entry thereof, and such appeal and the proceedings thereon shall in all respects be governed by the law relating to appeals from district courts.”

Moore, a tenant at 3704(B) Smiley Circle, in Smiley Court, a housing complex in Montgomery, was served with a notice of eviction on November 13, 2002, and thereafter failed to deliver possession of the apartment at 3704(B) Smiley Circle. On December 12, 2002, MHA filed an eviction action against Moore under the Sanderson Act in the Montgomery County District Court. The basis of MHA’s eviction action was that Moore had held possession of the premises over and beyond the term of her lease. Moore responded by filing an affidavit, contending that her lease had not been terminated and that she had a right to continue as a tenant of the residence. On January 6, 2003, the district court entered an order evicting Moore. The next day, Moore filed a notice of appeal to the Montgomery Circuit Court in which she requested a trial by jury. Thereafter, MHA filed a motion to strike Moore’s jury demand, which Moore opposed. After a hearing on the matter, the circuit court entered an order denying Moore’s request for a trial by jury and set the case for a nonjury trial. The circuit court’s order denying Moore’s request for a jury trial states:

“The above-referenced case having come before this Court on [MHA’s] motion to strike [Moore’s] jury request, and argument having been heard without the taking of evidence, the Court grants the motion- to strike and strikes the jury request. The Alabama Constitution does not confer on a tenant the right to a trial by jury in an eviction pursuant to the Sanderson Act, because such an action differs from unlawful detainer actions in that a money judgment is not available, and in that a Sanderson Act eviction was specifically designed to be more expeditious.”

Moore contends that the issue presented to this Court is whether the circuit court violated her constitutional right to a trial by jury guaranteed by § 11 of the Alabama Constitution of 1901. She argues that she is entitled to a jury trial because, she says, an eviction under the Sanderson Act is within the class of actions for which a right to a jury trial existed when the Alabama Constitution was adopted in 1901. Thus, she asserts that she has a clear legal right to a writ of mandamus from this Court ordering the trial court to grant her request for a jury trial.

“A writ of mandamus is an extraordinary remedy, and it will be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991). It is well settled that ‘a writ of mandamus will not issue to review the merits of an order denying a motion for a summary judgment.’ Ex parte Central Bank of the South, 675 So.2d 403, 406 (Ala.1996).”

Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998). “The rights of the parties secured by those statutory provisions [providing for a right to a trial by jury] are subject to the enforcement by mandamus in view of the fact that as a rule there would not be an adequate remedy by appeal from the final judgment.” Ex parte Merchants Nat’l Bank of Mobile, 257 Ala. 663, 664, 60 So.2d 684, 685 (1952), citing Ex parte Ansley, 107 Ala. 613, 18 So. 242 (1895); Knight v. Farrell & Reynolds, 113 Ala. 258, 20 So. 974 (1896); 55 C.J.S. Mandamus, § 93, p. 151. “Mandamus is the appropriate review where the availability of a jury trial is at issue.” Ex parte Cupps, 782 So.2d 772, 775 (Ala.2000).

“The right to a trial by jury in civil cases is protected in the federal courts by the Constitution of the United States and in our state courts by Section 11 of the Alabama Constitution of 1901, which provides: ‘That the right to a trial by jury shall remain inviolate.’
“Unlike the Federal Constitution which preserves the right to jury trial as of 1791, Alabama’s Constitution effected a ‘freezing’ of the right to jury trial as of 1901. Section 11 did not extend the right to cases in which it did not exist at that time. Miller v. Gaston, 212 Ala. 519, 103 So. 541 (1925); In re One Chevrolet Automobile, 205 Ala. 337, 87 So. 592 (1921); Alford v. State, ex rel. Attorney General, 170 Ala. 178, 54 So. 213 (1910). See also Thomas v. Bibb, 44 Ala. 721 (1870); Tims v. State, 26 Ala. 165 (1855); and Boring v. Williams, 17 Ala. 510 (1850).
“The correctness of these general principles cannot be disputed. However, as is often the case, generality leads to oversimplification. In several of our later decisions, it was held that the constitutional right to a trial by jury does not extend to causes unknown to the common law or to the statutory law as it existed at the time of the adoption of the Constitution. See, e.g., Porter v. Alabama Farm Bureau Mutual Cas. Ins. Co., 279 Ala. 499, 187 So.2d 254 (1966); City of Mobile v. Gulf Development Co., 277 Ala. 431, 171 So.2d 247 (1965); Miller v. Gaston, supra.
“This proposition lends itself to two possible interpretations. One construction is that the constitutional guaranty of trial by jury extends only to common law causes of action existing at the time of adoption of the 1901 Constitution, i.e., that the guaranty does not extend to statutory law existing at that time. The other construction is that the guaranty of trial by jury extends only to causes existing either at common law or under statutory law at the time of the adoption of the 1901 Constitution. The courts of the several states are divided on this question, some having adopted the former interpretation and some, including Alabama, being committed to the latter. In one of our older cases, Tims v. State, supra, the principle is stated:
“ ‘But it also urged, that the act is in conflict with the twenty-eighth section of the bill of rights, which declares “that the trial by jury shall remain inviolate.” In relation to this position, it is only necessary to observe, that it was not intended by this clause of the constitution to extend the right of jury trial to cases which were unknown either to the common or statute law, at the time of the adoption of that instrument.’
“In Alford v. State, supra, the court quoted from Tims v. State, supra, and set forth the principle as it applies to both civil and criminal cases:
“ ‘The right [trial by jury] is confined to those classes of cases in which the right existed at common law, or in which it was used at the time of the adoption of the Constitution. Where there have been several Constitutions, the right is in reference to its existence at the time of the adoption of the last one.’ ”

Gilbreath v. Wallace, 292 Ala. 267, 269-70, 292 So.2d 651, 653 (1974) (footnote omitted).

In light of the rule discussed in Gil-breath, we must determine whether the right to a trial by jury existed by statute or at common law for a Sanderson Act eviction at the time of the adoption of the Alabama Constitution of 1901. Therefore, we consider whether the action now characterized as a Sanderson Act eviction existed at that time.

Because the courts of this State have yet to address this particular issue, we consider the analogous case of Pernell v. Southall Realty, 416 U.S. 363, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974). In that case, the United States Supreme Court was called upon to determine whether the Seventh Amendment of the United States Constitution guaranteed the right to a trial by jury in an action brought by a tenant who sought recovery of possession of real property after having been evicted by the landlord.

Dave Pernell had entered into a lease agreement with Southall Realty for the rental of a house in the District of Columbia. Shortly after the execution of the lease agreement, Southall filed a complaint in the Superior Court of the District of Columbia seeking to evict Pernell from the premises for the alleged nonpayment of rent. The action was brought under District of Columbia Code §§ 16-1501 through 16-1505, which set forth a procedure for the recovery of possession of real property by a landlord from a tenant and is analogous to the Sanderson Act. In his answer denying that he owed rent, Pernell also requested a trial by jury, which the trial judge denied. The case was tried as a bench trial and a judgment was entered in favor of Southall. Pernell appealed to the District of Columbia Court of Appeals, claiming, among other things, that the Seventh Amendment guaranteed the right to a trial by jury in all cases brought pursuant to § 16-1501. The Court of Appeals affirmed the decision of the lower court, holding that jury trials are not guaranteed by the Seventh Amendment in landlord-tenant cases predicated on the nonpayment of rent or some other breach of the lease agreement where the only relief sought was repossession of the rented premises. Pernell then petitioned the United States Supreme Court for certiora-ri review, which it granted.

Addressing the issue whether § 16-1501 of the District of Columbia Code was limited to instances where a landlord sought to evict a tenant, the Court stated:

“District of Columbia Code § 16-1501 provides a remedy ‘(w)hen a person detains possession of real property without right, or after his right to possession has ceased.... ’ The statute is not limited to situations where a landlord seeks to evict a tenant, but may be invoked by any ‘person aggrieved’ by a wrongful detention of property. Ibid. See also infra, at 379. Under the statute, when a verified complaint is filed by the person aggrieved by the detention, the Superior Court of the District of Columbia may issue a summons to the defendant to appear and show cause why judgment should not be given against him for the restitution of possession. This summons must be served seven days before the day fixed for the trial of the action. § 16-1502. If, after the trial, it appears that the plaintiff is entitled to possession, judgment and execution for possession shall be awarded in his favor with costs. If, on the other hand, the plaintiff nonsuits or fails to prove his case, the defendant shall have judgment and execution for his costs. See § 16-1503.
“The Seventh Amendment provides: Tn Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.... ’ Like other provisions of the Bill of Rights, it is fully applicable to courts established by Congress in the District of Columbia. See Capital Traction Co. v. Hof, 174 U.S. 1, 5 (1899).
“This Court has long assumed that actions to recover land, like actions for damages to a person or property, are actions at law triable to a jury. In Whitehead v. Shattuck, 138 U.S. 146, 151 (1891), for example, we recognized that
“ ‘(i)t would be difficult, and perhaps impossible, to state any general rule which would determine in all cases what should be deemed a suit in equity as distinguished from an action at law ...; but this may be said, that where an action is simply for the recovery and possession of specific, real, or personal property, or for the recovery of a money judgment, the action is one at law.’
“See also Scott v. Neely, 140 U.S. 106, 110 (1891); Ross v. Bernhard, 396 U.S. 531, 533 (1970).
“Respondent suggests, however, that these precedents should be limited to actions to recover property where title is in issue and that actions brought under § 16-1501 should be distinguished as actions for the recovery of possession where claims of title are irrelevant. The distinction between title to and possession of property, of course, was well recognized at common law. See Grant Timber & Mfg. Co. v. Gray, 236 U.S. 133, 134 (1915). But however relevant it was for certain purposes, it had no bearing on the right to a jury trial. The various forms of action which the common law developed for the recovery of possession of real property were also actions at law in which trial by jury was afforded.
“Over the course of its history, the common law developed several possesso-ry actions. Among the earliest of these was the assize of novel disseisin which developed in the latter half of the 12th century and permitted one who had been recently disseised of his tenement to be put back into seisin by judgment of the King’s court. Trial by assize represented one of the earliest forms of trial by jury. After the plaintiff lodged his complaint, a writ would issue bidding the sheriff to summon 12 good and lawful men of the neighborhood to ‘recognize’ before the King’s justices whether the defendant had unjustly disseised the plaintiff of his tenement. Like the modern cause of action embodied in § 16-1501, novel disseisin was a summary procedure designed to mete out prompt justice in possessory disputes.
“Writs of entry, dating from about the same period, were developed to encompass situations not covered by the assize of novel disseisin. Novel disseisin, for example, was applicable only where the defendant gained possession wrongfully by putting the plaintiff out of seisin. Writs of entry, in contrast, permitted recovery where the defendant entered into possession lawfully but no longer had rightful possession. Indeed, one of the writs of entry, the writ of entry ad terminum qui praeterit, could be used by a plaintiff to recover lands from a defendant who had originally held them for a term of years, which term had expired. The writ, in other words, embodied a cause of action quite similar to that encompassed in § 16-1501. Significantly for present purposes, it is clear that either party could demand a jury trial.
“Both of these forms of action, though not legally abolished until well into the 19th century, had fallen into disuse by the time our Constitution was drafted. By then, ejectment had become the most important possessory action. Ejectment originated as a very narrow remedy, designed to give the lessee of property a cause of action against anyone who ejected him, including his lessor. But by a variety of intricate fictions, ejectment eventually developed into the primary means of trying either the title to or the right to possession of real property.
“In particular, ejectment became the principal means employed by landlords to evict tenants for overstaying the terms of their leases, nonpayment of rent, or other breach of lease covenants. Had Southall Realty leased a home in London in 1791 instead of one in the District of Columbia in 1971, it no doubt would have used ejectment to seek to remove its allegedly defaulting tenant. And, as all parties here concede, questions of fact arising in an ejectment action were resolved by a jury.
“Notwithstanding this history, the Court of Appeals reasoned that an action under § 16-1501 was not the ‘equivalent’ of an action of ejectment. [Pernell v. Southall Realty,] 294 A.2d [490], at 492 [(D.C.1972)]. It noted that another section of the D.C.Code sets forth a more specific action of ejectment. Moreover, the expedited character of a § 16-1501 proceeding was seen as contrasting sharply with the archaic limitations and cumbersome procedures that marked the common-law action of ejectment. Ibid. Since, in its opinion, neither § 16-1501 nor its equivalent existed at common law, the Court of Appeals held that the Seventh Amendment did not guarantee the right to jury trial.
“In our view, this analysis is fundamentally at odds with the test we have formulated for resolving Seventh Amendment questions. We recently had occasion to note that while ‘the thrust of the Amendment was to preserve the right to jury trial as it existed in 1791, it has long been settled that the right extends beyond the common-law forms of action recognized at that time.’ Curtis v. Loether, 415 U.S. 189, 193 (1974). The phrase ‘suits at common law’ includes not only suits
“ ‘which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contra-distinction to those where equitable rights alone were recognized, and equitable remedies were administered .... In a just sense, the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights.’ Parsons v. Bedford, 3 Pet. 433, 447 (1830) (emphasis in original).
“Whether or not a close equivalent to § 16-1501 existed in England in 1791 is irrelevant for Seventh Amendment purposes, for that Amendment requires trial by jury in actions unheard of at common law, provided that the action involves rights and remedies of the sort traditionally enforced in an action at law, rather than in an action in equity or admiralty. See Curtis v. Loether, supra, at 195.
“The proceeding established by § 16-1501, while a far cry in detail from the common-law action of ejectment, serves the same essential function — to permit the plaintiff to evict one who is wrongfully detaining possession and to regain possession himself. As one commentator has noted, while statutes such as § 16-1501 were ‘unknown to the common law ... (t)hey are designed as statutes for relief, not to create new causes of action. The evident intention is to give this summary relief in those cases where ... the action of ejectment would lie.’ Indeed, the courts of the District themselves have frequently characterized the action created in § 16-1501 as a ‘substitute’ for an ejectment action. Moreover, it appears that every action recognized in 1791 for the recovery of possession of property carried with it the right to jury trial. Neither respondent nor the Court of Appeals was able to point to any equitable action even remotely resembling § 16-1501. Since the right to recover possession of real property governed by § 16-1501 was a right ascertained and protected by courts at common law, the Seventh Amendment preserves to either party the right to trial by jury.”

416 U.S. at 369-76, 94 S.Ct. 1723 (footnotes omitted).

“The common law is the base upon which all of the laws of this state have been constructed, and when our courts are called upon to construe a statute— when they are called upon to ascertain and declare the legal effect and meaning of a legislative enactment — they must read the statute in light of the common law.”

Cloverdale Homes v. Town of Cloverdale, 182 Ala. 419, 429, 62 So. 712, 715 (1913), overruled on other grounds, City of Orange Beach v. Benjamin, 821 So.2d 193 (Ala.2001). “Ejectment was known to the common law, Betz v. Mullin, 62 Ala. 365 [(1878)], and it seems implicit that the right to a trial by jury is preserved in causes known to the common law in Section 11 of the Constitution of Alabama 1901.” Kelley v. Mashburn, 286 Ala. 7, 9, 236 So.2d 326, 327-28 (1970).

The United States Supreme Court’s rationale and holding in Pernell is persuasive authority in this case. Specifically, the Sanderson Act serves essentially the same function as an ejectment action— it provides a landlord with a means to evict a tenant wrongfully detaining possession— and ejectment was a part of the common law of this State when the Constitution of 1901 was adopted, with the implicit right to a trial by jury. Thus, the implication of the rationale of Pernell, applicable to the instant facts, is that Moore is entitled to a trial by jury on her appeal to the circuit court challenging the district court’s judgment rendered in favor of MHA.

MHA contends, relying on a statement concerning the jurisdiction of the probate courts and the circuit courts to consider appeals from Sanderson Act evictions in Salvadore v. Howard, 247 Ala. 533, 25 So.2d 412 (1946), that Sanderson Act evictions are purely statutory proceedings. In Salvadore the landlord Hudson filed an affidavit to procure the eviction of the tenant Salvadore, and a writ of eviction was issued. Salvadore filed an opposing affidavit, but he took none of the other steps required by the applicable statutory procedure, no resulting judgment was entered, no transcript of any proceeding was prepared, and Salvadore’s attempted appeal to the circuit court omitted critical steps mandated by the statutory procedure. On appeal, this Court, after noting that the proceedings in question “are purely statutory” and that the appellate jurisdiction of the circuit court could be invoked only “by following the mode [of appeal] prescribed by the statute,” held that the circuit court never acquired jurisdiction, “there being no appeal nor judgment from which an appeal could be taken to said court.” 247 Ala. at 535, 25 So.2d at 413-14. The purely “statutory” proceedings in Salvadors were the appellate proceedings; thus, that reference is not pertinent to the issue at hand. MHA also contends, citing Reed v. Hill, 262 Ala. 662, 80 So.2d 728 (1955), that if there is no legal cause of action, then there can be no right to a jury trial. MHA further asserts that the appropriate basis for determining whether a litigant has a right to a trial by jury was stated in Waldrop v. Southern Co. Services, Inc., 24 F.3d 152, 156 (11th Cir.1994). In that case, the United States Court of Appeals for the Eleventh Circuit stated, in pertinent part:

“To resolve the issue of the availability of a jury trial under the Seventh Amendment when the statute does not provide the answer on its face, the Supreme Court has established a two-pronged standard. See [Chauffeurs, Teamsters & Helpers, Local No. 391 v.] Terry, 494 U.S. [558] at 565, 110 S.Ct. [1339] at 1344 [(1990)]. First, the nature of the statutory action compared to the 18th-century actions brought in the English courts prior to the merger of the courts of law and equity. Second, the remedy sought is examined to determine whether it is legal or equitable in nature. Id. (citing Tull [v. United States], 481 U.S. [412] at 417-18, 107 S.Ct. [1831] at 1835 [(1987)]). The Supreme Court has repeatedly stressed that the second inquiry is the ‘more important’ of the two. Terry, 494 U.S. at 565, 110 S.Ct. at 1344 (citing Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42, 109 S.Ct. 2782, 2790, 106 L.Ed.2d 26 (1989)). See Wooddell v. International Bhd. of Elec. Workers, Local 71, 502 U.S. 93, 97, 112 S.Ct. 494, 498, 116 L.Ed.2d 419 (1991).”

Thus, MHA implicitly argues that because the instant action is equitable in nature, i.e., the Sanderson Act does not provide for money damages, Moore does not have a right to a jury trial. However, our reading of the Sanderson Act reveals that it does not expressly state whether the remedy afforded by the act is legal or equitable in nature.

Notwithstanding the Sanderson Act’s failure to state whether it allows for the recovery of money damages, this Court has stated that an action brought pursuant to the Sanderson Act is an action in the nature of unlawful detainer. See Garrett v. Reid, supra; Riley v. Riley, supra; Glenn v. Nixon, 248 Ala. 569, 28 So.2d 718 (1946); Cranford v. Lawrence, 252 Ala. 445, 41 So.2d 405 (1949); Williams v. Prather, supra; and Hicks v. Longfellow Dev. Co., supra. Historically, the right to a trial by jury in unlawful-detainer actions has been recognized by the courts of this State. See Riley v. Riley, supra; Johnson v. Christian, 2 Port. 201 (Ala.1835); Powers v. David, 6 Ala. 9 (1844); and Underwood v. Greater Gadsden Housing Auth., 789 So.2d 867 (Ala.Civ.App.2000). Additionally, in Mobley v. Moore, 350 So.2d 414, 416 (Ala.1977), this Court stated:

“The merger of law and equity under the Alabama Rules of Civil Procedure, and in other merged systems, has supplanted the procedural distinction existing between law and equity with the distinction between jury and non-jury cases. Donaldson and Walls, Merger of Law and Equity in Alabama, 33 Ala. Law 134, 142 (1972). Rule 38 explicitly preserves the right to a trial by jury on any issue previously recognized as a triable issue. Rule 38, [Ala. R. Civ. P.] Under the merged system, it is contemplated that a suit will embrace both jury issues and non-jury issues without affecting the parties’ right to a jury trial. Poston v. Gaddis, 335 So.2d 165 (Ala. Civ.App.1976), cert. denied, 335 So.2d 169 (Ala.1976); see also Committee Comments to Rules 2, 38, and 39, [Ala.R. Civ. P.]”

As stated above, we have concluded that a cause of action under the Sanderson Act serves the same function as did an ejectment action at common law, which was “previously recognized as a triable issue,” 350 So.2d at 416. Moreover, Ala.Code 1975, § 12-12-30, which sets forth the jurisdiction of district courts in Alabama, expressly provides, subject to certain exceptions not applicable to this case, that district courts do not have jurisdiction in actions seeking equitable relief. Specifically, that statute provides, in relevant part:

“The original civil jurisdiction of the district court of Alabama shall be uniform throughout the state, concurrent with the circuit court, except as otherwise provided, and shall include all civil actions in which the matter in controversy does not exceed ten thousand dollars ($10,000), exclusive of interest and costs, and civil actions based on unlawful de-tainer; except, that the district court shall not exercise jurisdiction over any of the following matters:
“(1) Actions seeking equitable relief other than:
“a. Equitable questions arising in juvenile cases within the jurisdiction of the district court.
“b. Equitable defenses asserted or compulsory counterclaims filed by any party in any civil action within the jurisdiction of the district court.”

However, as shown by § 35-9-80 quoted above, district courts do have jurisdiction in Sanderson Act evictions. “ ‘The cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute.’ ” Ex parte Weaver, 871 So.2d 820, 823 (Ala.2003), quoting Ex parte State Dep’t of Revenue, 683 So.2d 980, 983 (Ala.1996); Auburn Univ. v. Advertiser Co., 867 So.2d 293 (Ala.2003); Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513 (Ala.2003). Accordingly, we conclude that Moore had a clear legal right to a jury trial and that the circuit court erred by denying her request for a jury trial on her appeal to that court from the judgment rendered by the district court in favor of MHA. Ex parte Empire Fire & Marine Ins. Co., supra. We therefore grant Moore’s petition and issue a writ directing the trial court to vacate its order striking Moore’s demand for a jury trial.

PETITION GRANTED; WRIT ISSUED.

HOUSTON, SEE, LYONS, JOHNSTONE, WOODALL, and STUART, JJ., concur.

      . The materials submitted to this Court do not explicitly state whether Smiley Court is gov-ernmentally subsidized housing; however, in light of the "Affidavit of Substantial Hardship and Order" filed by Moore, which indicates that she receives financial assistance benefits and also shows her total monthly gross income, we infer that Smiley Court is in fact subsidized housing managed by MHA.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    ECS, INC., et al. v. GOFF GROUP, INC.
    1021293.
    Supreme Court of Alabama.
    Oct. 31, 2003.

      G. Thomas Yearout of Duell, Yearout & Spina, P.C., Birmingham, for appellants.
    Thomas T. Gallion III and Jamie Austin Johnston of Haskell, Slaughter, Young & Gallion, LLC, Montgomery, for appellee.
   WOODALL, Justice.

ECS, Inc.; ECS Underwriting, Inc.; Jim Fowler, senior vice president of ECS Underwriting, Inc.; and Frank Longo (hereinafter collectively referred to as “ECS”) appeal from an order denying their motion to compel arbitration of a dispute between ECS and Goff Group, Inc. (“Goff’). We reverse and remand.

This dispute arose out of the termination of a “Program Manager’s Agreement” (“the agreement”) executed in the spring of 2001 by Goff, Greenwich Insurance Company (“Greenwich”), and XL Specialty Insurance Company (“XL”). As “manager” under the agreement, Goff had authority to bind “insurance policies for insureds introduced to it by independent agents” in Alabama and several other southeastern states. Policies were underwritten by ECS Underwriting, Inc., and issued by Greenwich and XL.

The agreement authorized Goff to, among other things, “charge, collect, receive and receipt for all premiums ... due on all Policies bound or written [thereunder], and pay [Greenwich and XL].” It required Goff to “prepare and forward to [Greenwich and XL] on a monthly basis, within (15) days of the end of each calendar month, a detailed premium bordereau and statement of account for the period....” It further provided:

“ARTICLE III. Manager’s Duties and Responsibilities
“Q. Premium Financing. At the time of each insurance quotation, [Goff] will prepare a Cananwill Premium Finance Agreement (PFA) using a Cananwill software platform. The quote and the PFA will be faxed to each producing broker with an instruction sheet. The instruction sheet will outline the terms of the PFA, including a 22% deposit and nine installment payments, and will advise that either the signed PFA or a check for 100% pre-payment of the annual premium must accompany all orders to bind. [Goff] will fax the order to bind along with a signed PFA or copy of the pre-payment check to ECS on behalf of [Greenwich or XL ].
“No orders to bind will be processed without full pre-payment or a signed PFA. All original PFAs will be federal expressed to ECS within five (5) days of policy inception date. If a client pre-pays its annual premium, [Goff] will remit net to ECS within 15 days of the close of each month via bordereau, as set forth in Article III(J).
“ARTICLE XI. Suspension of [Goffs] Authority
“[Greenwich/XL] may, by immediate notice to [Goff], suspend any part or all of [Goffs] authority under this Agreement for such time as [Greenwich/XL] may deem necessary to protect [its] interests or reputation if any of the following occur:
“D. Default. The failure of [Goff] to perform its duties and responsibilities under this Agreement including the timely remitting of accounts and monies to [Greenwich/XL], insureds or policyholders and timely and full compliance with the [Greenwich/XL] directives, rules, regulations or manuals....
“ARTICLE XII. Termination of Agreement
“A. [Greenwich/XL] may terminate this Agreement as follows:
“(2) Upon Thirty (30) daysf] notice to [Goff] in the event of:
“d. Default. The failure of [Goff] to perform its duties and responsibilities under this Agreement including the timely remitting of accounts and monies to [Greenwich/XL], insureds or policyholders and timely and full compliance with the [Greenwich/XL] directives, rules, regulations or manuals....
“ARTICLE XVIII. Other Terms and Conditions
“I. Notices. Wherever notice is required under this Agreement, it shall be in writing, and deemed to have been received either when [actually] received or 3 days after having been sent by certified mail, and addressed:
“1. If to [Greenwich/XL]:
“James A. Fowler
Senior Vice-President
ECS Underwriting, Inc.
505 Thornall St.
Suite 305
Edison, NJ 08837
with copy to:
Leonard R. Olsen, Jr.
Corporate Counsel
ECS, Inc.
520 Eagleview Blvd.
Exton, PA 19341”

(Emphasis added.)

The agreement also contained an arbitration provision, which provided, in pertinent part:

“As a condition precedent to any right of action hereunder, any dispute arising out of this Agreement, including its. formation, validity or applicability to the dispute, during or after termination of this Agreement, shall be submitted to the decision of a board of arbitration. ... A decision by the majority of the members of the board shall become the award of the board and shall be final and binding upon all parties to the proceeding.”

(Emphasis added.)

Approximately a year after the execution of the agreement, Goff received a letter dated June 13, 2002, from Fowler. The letter stated:

“I am sending you this letter to inform you that per the terms of our contract tve are suspending [Goffs] authority to quote new and renewal business due to unpaid premiums. I am attaching an email I sent to [an executive of Goff] this morning explaining the situation in greater detail.
“Basically your payments to us are three months in arrears, an unacceptable condition.
“We will honor all quotations outstanding for new and renewal business through July.
«I regret that we have been required to take this initiative but the severity of the non-payment issue requires this action.”

(Emphasis added.)

Subsequently, Fowler sent Goff a letter dated June 28, 2002, purporting to terminate the agreement. Specifically, the letter stated:

“Please be advised that per ARTICLE XII, Section B, (TERMINATION OF AGREEMENT) of the Program Manager’s Agreement we are terminating said Agreement effective September 30, 2002.
“During the period until September 30, 2002, the authority of [Goff] shall remain suspended per the suspension letter dated June 13, 2002.
“During the period until September 30, 2002, no new business shall be quoted and all renewal business must be referred to us.
“You should also be advised that we will commence sending notices of non-renewal on October expirations immediately.”

(Capitalization original; emphasis added.)

On August 9, 2002, Goff sued ECS on theories of (1) fraud, (2) tortious interference with a contractual/business relationship, (3) the tort of outrage, (4) conspiracy, (5) unfair competition, (6) violation of trade secrets, (7) conversion, and (8) tortious training and supervision. These theories were based on the following factual aver-ments of the complaint:

“23. On June 13, 2002, Defendant Fowler, Senior Vice-President of Defendant ECS, wrote [Goff] in an attempt to suspend temporarily [Goffs] authority under the Agreement. Defendant Fowler followed said correspondence with an email to [Goff] indicating the suspension would be effective through June 24, 2002. In Defendant Fowler’s correspondence of June 13, 2002, he charged that [Goff] was late in remitting premiums. Despite Defendant Fowler’s position to the contrary, the [Agreement] provides 5 days for the Servicing Company to cure any alleged default. [Goff] provided any and all of the information that Defendant Fowler requested within the time allowed. Soon thereafter, on June 28, 2002, Defendant Fowler sent additional correspondence to [Goff] whereby he attempted to terminate the Agreement. The June 28, 2002, correspondence also attempts to extend the suspension to the termination date.
“24. The termination letter states that the reason for the termination was underwriting losses. According to Defendant Fowler, the underwriting program was not profitable in 2001 and was not projecting an underwriting profit for 2002. Thus, they wished to withdraw from the market. Although [Goff] disputes that there were in fact excessive underwriting losses, even assuming ar-guendo there are significant underwriting losses, the clear language of the Program Manager’s Agreement does not allow the suspension of [Goffs] authority from the present to the termination date of September 30, 2002. Indeed, it is clear Defendant Fowler and ECS were aware that the Agreement does not allow for unilateral suspension given the documentation from Defendant Fowler limiting the suspension to June 24, 2002.
“25. Further, Defendants ECS, Fowler, Longo, and other executive officers repeatedly refused to verify or even substantiate their allegations that the Program is a loss. All premiums under the Program Manager’s Agreement are sent to Defendant ECS who in turn [is] instructed to send said payment to Greenwich Insurance Company and XL Specialty Insurance Company. It is clear that based on the accurate records and accounting methods, the Program is profitable. Therefore, it is believed that if Defendant ECS claims a loss in the market, it must be because they are not forwarding the entire monies sent to them by [Goff] to XL and Greenwich. [Goff] is not aware of any overrides that would allow such a transaction.
“26. The Program Manager’s Agreement permits a suspension of [Goffs] ... authority only under certain limited circumstances and only for a limited period of time. Article XI provides, in pertinent part, as follows:
“ ‘[Greenwich/XL] may, by immediate notice to [Goff], suspend any part or all of [Goffs] authority under this Agreement for such time as [Greenwich/XL] may deem necessary to protect its interest or reputation if any of the following occur:
“ ‘D. The failure of [Goff] to perform its duties and responsibilities under this Agreement including the timely remitting of accounts and monies to [Greenwich/XL], insureds, the policyholders, and timely compliance with [Greenwich/XL] directives rules, regulations and manuals.... ’
“27. The Program Manager’s Agreement also clearly sets forth the circumstances under which the Agreement may be terminated and the procedure to be followed for terminating it. Article XII, Section A, describes the limited circumstances under which Greenwich and XL may terminate the Agreement, and Article XII, Section B, provides for termination by either party. Essentially, Section A lays out the grounds of ‘for cause’ termination and allows Greenwich and XL to terminate immediately or on thirty (30) days notice, depending on the ‘cause.’ Section B simply provides that either party may terminate the Agreement on sixty (60) days notice without any reason.
“29. The actions of Defendants Fowler and ECS are dearly outside the terms of the Agreement. It was the stated intention of the parties that either side could terminate the Agreement without cause if so desired. However, for the protection of the non-terminating party, a sixty (60) day period during which the relationship would continue was mandated.
“30. [Goff] is being damaged and will continue to be damaged by the Defendants’ unilateral and groundless suspension of ... authority. [Goffs] inability to quote new and renewal business under the Agreement has caused [Goff] to incur substantial financial losses that cannot be quantified....
“32. If the suspension is allowed, [Goff] itself may be able to calculate its economic loss and recover money damages for the business loss. However, the consequential damage to those [Goff] employees who will lose their jobs if Defendants are permitted to suspend [Goffs] ... authority is something that will never be capable of adequate remedy at law.
“33. Obtaining the suspension and termination of the Program Manager’s Agreement was the ultimate goal of the Defendants. All of their efforts detailed above establish their scheme to deceive and cause irreparable harm to [Goff].”

(Emphasis added; footnote omitted.)

In addition to compensatory and punitive damages, Goff sought equitable relief, including an order enjoining ECS from “soliciting, brokering, or marketing services or competing with [Goffs] rights under the Program Manager’s Agreement,” and from “interfering with the Program Manager’s Agreement.” In a separate action in the Montgomery Circuit Court, Goff also sued Greenwich and XL, alleging breach of contract. That action, originally styled Goff Group, Inc. v. Greenwich Insurance Company; XL Specialty Insurance Company, CV-2002-2199, was removed to the United States District Court for the Middle District of Alabama, which ultimately ordered the parties to proceed to arbitration.

ECS moved to compel arbitration of this dispute. The trial court denied the motion, and ECS appealed. The sole issue on appeal is whether ECS, which is not a signatory to the agreement, may, nevertheless, enforce the agreement’s arbitration provision as to Goffs claims against it.

Both sides of this dispute acknowledge the general rule that the right to arbitrate is contractual, and that, therefore, a party may not be compelled to arbitrate a dispute, unless it has agreed to do so. Ex parte Cain, 838 So.2d 1020, 1026 (Ala.2002); Ex parte Lovejoy, 790 So.2d 933, 937 (Ala.2000); AG. Edwards & Sons, Inc. v. Clark, 558 So.2d 358, 361 (Ala.1990). This Court, however, has recognized certain exceptions to that general rule whereby a nonsignatory — one who is not a party to the contract containing an arbitration provision — may, nevertheless, compel a signatory to submit a dispute to arbitration. Ex parte Stamey, 776 So.2d 85, 89 (Ala.2000). One such exception “arises from a third-party-beneficiary theory that affords the [nonsignatory] all the rights and benefits, as well as the burdens, of that contract, including those associated with arbitration.” 776 So.2d at 89. The parties agree that this exception is not applicable to this case.

A second exception, which ECS contends applies here, is a variation on the theory of “equitable estoppel.” Id. See also Ex parte Napier, 723 So.2d 49, 53 (Ala.1998); Ex parte Isbell, 708 So.2d 571, 574-76 (Ala.1997). Under certain circumstances, a signatory will be “ ‘equitably estopped from contesting [the nonsignato-ry’s] standing to invoke the [arbitration] clause.’ ” 708 So.2d at 576 (quoting Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753 (11th Cir.1993)(first bracketed language added)). At a minimum, estoppel requires that the “description of the parties subject to the arbitration agreement not be so restrictive as to preclude arbitration by the party seeking it.” Ex parte Stamey, 776 So.2d at 89.

ECS contends that the agreement contains no exclusionary language limiting the application of the arbitration clause to the named signatories. In opposing arbitration, Goff argues that “the arbitration clause and other language ... expressly limit[ ] the arbitration provision to any and all claims between [Goff] and either Greenwich or XL.” Goffs brief, at 16-17. In support of that argument, Goff cites a number of cases in which a nonsignatory attempted unsuccessfully to invoke an arbitration provision that was limited to signatories. See, e.g., Ex parte Cox, 828 So.2d 295 (Ala.2002); Monsanto Co. v. Benton Farm, 813 So.2d 867 (Ala.2001); Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala.2000); and Southern Energy Homes, Inc. v. Kennedy, 774 So.2d 540 (Ala.2000).

We disagree with Goff. The cases it cites involved arbitration clauses fundamentally different from the one at issue. For example, the arbitration provision in Cox provided, in pertinent part: “ ‘Any controversy or claim between or among you and I [sic] or our assignees arising out of or relating to this contract ... shall, if requested by either you or me, be determined by arbitration.... ’ ” 828 So.2d at 296 (emphasis added). In Monsanto, the arbitration provision stated, in part: “ ‘You [the buyer], your agents, and any other persons having or claiming to have a claim against Seller relating to the goods sold agree that any controversy or claim arising out of or relating to this contract or the goods sold hereunder, ... may be settled by arbitration.... ’ ” 813 So.2d at 869 (emphasis added). Yar-brough involved an arbitration provision that stated, in part: “ ‘The Dealer and Purchaser(s) mutually covenant .... that [as to] all disputes ... resulting from or arising out of the sale transaction entered into ... Dealer and the purchaser(s) agree to submit such dispute (s) to BINDING ARBITRATION.’ ” 779 So.2d at 1206 (capitalization original; emphasis added). Kennedy involved an arbitration clause that stated, in part: “ ‘All disputes, controversies or claims ... between seller and buyer ... arising out of any transaction or relationship between seller and buyer or arising out of any prior or future dealings between seller and buyer, shall be ... settled by arbitration.’ ” 774 So.2d at 542 (emphasis added).

In each of those cases, the language of the arbitration provision limited the clause’s application to the parties, or to specifically described third parties. In this case, by contrast, the clause merely requires the arbitration of “any dispute arising out of [the] Agreement, including its formation, validity or applicability to the dispute.” Its scope is not limited to the parties to the agreement, or to their agents or assignees. Thus, this clause is “not so restrictive as to preclude arbitration by [ECS].” Ex parte Stamey, 776 So.2d at 89.

Moreover, the claims against ECS arise out of the agreement. See Kennedy, 774 So.2d at 545 (claims arise out of the contract “ ‘[w]hen each of a signatory’s claims against a nonsignatory “makes reference to” or “presumes the existence of’ the written agreement’ ”). In particular, Goffs theory of the case is that ECS suspended, and eventually terminated, the agreement in violation of the terms of the agreement. For example, paragraph 28 of the complaint avers that Fowler first suspended, and then terminated, the agreement. Paragraph 24 avers that the purported suspension violated the “clear language of the Program Manager’s Agreement.” Paragraph 26 contains a block quotation from Article XI of the agreement, which defines the circumstances authorizing suspension of the manager’s authority. In paragraph 27, Goff invokes Article XII, which defines the circumstances authorizing termination of the agreement. In paragraph 29, Goff avers that “[t]he actions of Defendants Fowler and ECS are clearly outside the terms of the Agreement.” (Emphasis added.) In paragraph 80, Goff avers that it “will continue to be damaged by the Defendants’ unilateral and groundless suspension of [Goffs] authority.” (Emphasis added.) Finally, Goffs prayer for relief sought, among other things, an order enjoining ECS from “competing with [Goffs] rights under the Program Manager’s Agreement,” and from “interfering with the Program Manager’s Agreement.”

To be sure, Goff has stated its claims in tort, rather than contract, language. “ ‘[I]t is well established,’ ” however, “ ‘that a party may not avoid broad language in an arbitration clause by attempting to cast its complaint in tort rather than contract.’ ” Beaver Constr. Co. v. Lakehouse, L.L.C., 742 So.2d 159, 165 (Ala.1999) (quoting McBro Planning & Dev. Co. v. Triangle Elec. Constr. Co., 741 F.2d 342, 344 (11th Cir.1984)). Whether stated in contract or tort, Goffs claims against ECS arise out of the tripartite Goff-Greenwich/XL-ECS relationship.

Although ECS was not technically a “party” to the agreement, its relationship with Goff was created, as well as defined, by the agreement. Goffs duties under Article III.Q. of the agreement included sending “order[s] to bind along with a signed [premium finance agreement] or copy of the pre-payment check to ECS on behalf of [Greenwich/XL].” That section also set forth the chronology for premium remittances to ECS. The agreement required that notice to Greenwich or XL, whenever required, be sent to ECS. In short, Goffs claims against ECS cannot be resolved without reference to, and interpretation of, the agreement.

Finally, Goffs claims against ECS are intertwined with its claims against Greenwich and XL, which luill be resolved in arbitration, as ordered by the United States District Court. Although the record does not contain the complaint that was filed in case no. CV-2002-2199, it is clear that Goffs claims against those other signatories also arise out of the agreement. Goff concedes that “ECS and ECS Underwriting were agents for XL and Greenwich.” Goffs brief, at 1 (emphasis added). Apparently, it was in this capacity that Fowler, by letters dated June 13, 2002, and June 28, 2002, purported to suspend Goffs authority and to terminate the agreement, respectively. It was “on behalf of’ Greenwich and XL that EGS received payments and “order[s] to bind.” Under these facts, were we to allow Goff to litigate its claims against ECS, “ ‘ “the arbitration proceedings [between the two signatories] would be rendered meaningless and the federal policy in favor or arbitration effectively thwarted.” ’ ” Kennedy, 774 So.2d at 545 (quoting MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir.1999)).

For these reasons, the trial court erred in denying ECS’s motion to compel arbitration. That order is, therefore, reversed, and this case is remanded for the entry of an order directing the parties to proceed to arbitration.

REVERSED AND REMANDED.

HOUSTON, SEE, LYONS, and JOHNSTONE, JJ., concur.

      . A number of other cases on which Goff relies were postured conversely to this case, that is, the party resisting arbitration was a nonsignatory. See, e.g., SouthTrust Bank v. Ford, 835 So.2d 990 (Ala.2002); Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524 (Ala. 2001); and Auvil v. Johnson, 806 So.2d 343 (Ala.2001). This distinction is significant, because "the doctrine of estoppel is applicable only to estop a signatory from avoiding arbitration.” Ford, 835 So.2d at 995.

      . Indeed, were it otherwise, the signatories would not have been ordered to resolve the dispute in the arbitral forum.


author: MURDOCK, Judge.

text:
    PREMDOR CORPORATION v. Renelda K. JONES.
    2011258.
    Court of Civil Appeals of Alabama.
    Nov. 14, 2003.

      Brent A. Tyra of Smith, Tyra & Thomas, LLC, Alabaster, for appellant.
    Neil Taylor, Jr., Russellville, for appel-lee.
   MURDOCK, Judge.

Premdor Corporation appeals from a judgment entered by the Marion Circuit Court in favor of Renelda K. Jones finding that Jones was permanently totally disabled as a result of an injury she sustained in the course of her employment with Premdor.

Jones began working for Premdor in October 1996. In the spring of 1999 Jones became a buggy loader at Premdor’s plant; a buggy loader loads pieces of wood used in the manufacturing of doors into carts and pushes the carts to another work station. A fully loaded cart could weigh up to 2,200 pounds, and, by her estimation, Jones had to push the carts approximately 50 feet. Jones contended that on May 9, 2000, she injured her lower back while pushing one of the carts. She admitted that she did not inform her supervisor of the injury, but she claimed that approximately one hour after she sustained the injury she informed plant manager Larry Cagle, who happened to be walking through the plant, that she had hurt her back.

Premdor has a policy that states that if an employee sustains a job-related injury, “it is imperative that [the employee] contact [his or her] supervisor immediately.” The supervisor would then fill out paperwork on the injury for workers’ compensation purposes. Jones admitted to being aware of the policy, and evidence was introduced showing that she had followed the policy on two previous occasions when she had sustained workplace injuries to a foot and an elbow. No paperwork was filled out regarding Jones’s lower-back injury at any time before the filing of this action by Jones.

Jones testified that on May 6, 2000, the Saturday before the Tuesday on which she allegedly sustained the workplace injury at issue, she was mowing the grass at her mother’s house. Jones stated that, “just as I started to mow ..., I felt a sharp pain, and I hadn’t done anything really yet.” However, she also testified in response to questions from her attorney that she “[got] over the grass pain before the Premdor pain” and that her back felt fíne on May 9 before she started pushing the cart that allegedly caused her injury. Id.

Following the alleged injury on May 9, Jones finished her shift and went home. In the early morning of May 10, 2000, Jones was taken to Carraway Northwest Medical Center’s emergency room by her husband because of her complaints of intense back pain. Jones was referred that day to her family physician; however, because her family physician was unavailable, she was seen by another doctor, Dr. Miller, for evaluation. Dr. Miller recommended that Jones see Dr. Palmer, a chiropractor. On May 15, 2000, Jones was seen by Dr. Palmer’s partner, Dr. Marino, who cleared her to return to work on light duty for a day starting on May 22, followed by a resumption of her regular duties the following workday. Jones claimed that she reaggravated the injury on May 23 and that she told her supervisor, Kenny Price, that she had hurt her back. Price testified that Jones never informed him that she had injured her back at any time.

Jones left work that day and again visited Dr. Marino; he did not take Jones off work, but he did refer her to Dr. Jeffrey Long. Dr. Long diagnosed Jones with a lumbar sacral sprain, but he did not take her off work. Jones returned to work on May 25, and she worked for two weeks without reporting any other injuries to her supervisor or to anyone else. On June 6, 2000, Jones was unable to get out of bed because of pain in her back, and, thus, she did not go to work. She called Premdor and reported that she was feeling hurt and would not be reporting to work that day. Jones visited her family physician, Dr. Gary Fowler, two days later on June 8. Dr. Fowler took Jones off work for a few days; Jones had a note from Dr. Fowler relieving her of work duty delivered to Premdor by her daughter. By Jones’s own admission, this note and subsequent notes from doctors did not reference an on-the-job injury.

On June 12, 2000, Jones visited Dr. Leslie Fowler, an orthopedic surgeon who had previously treated Jones for her foot problems. Dr. Fowler referred Jones to Dr. Bryan Givhan, a neurosurgeon; however, before the date of that appointment, Jones visited Carraway Northwest Medical Center’s emergency room on July 12, 2000. On July 28, 2000, Jones visited Dr. Chester Boston, another orthopedic surgeon, on referral from Dr. Gary Fowler. After three visits, Dr. Boston released Jones to return to work without any restrictions; however, Jones did not return to work. During this same time, Jones was also being seen by Dr. Leslie Fowler for her foot problems and, on August 21, 2000, Dr. Fowler performed surgery on Jones’s left foot to remove a bunion. Jones was excused from work for the surgery.

On September 7, 2000, Jones finally visited Dr. Givhan based on the referral from Dr. Leslie Fowler. Jones visited Dr. Givhan three times, with the last visit occurring in late October or early November 2000. On the third visit, Dr. Givhan released Jones to return to work without placing any restrictions on her.

Jones testified that during her treatment with Dr. Givhan she went to the Premdor plant with her next-door neighbor, Carol Guyton, and informed the general manager of Premdor, Willie Hilliard, that she had injured her back on the job while pushing one of the carts. She testified that Hilliard told her that she would have to prove her claim. Guyton testified that she accompanied Jones to Premdor and as to the substance of Jones’s conversation with Hilliard; she was unable to recall when the conversation took place beyond stating that it occurred either at the end of 2000 or the beginning of 2001.

Following her treatment by Dr. Givhan, Jones was next seen by Dr. Farouk Ra-quib, another neurologist, on November 28, 2000, and December 13, 2000. Finally, Jones was treated by Dr. David Longmire, a neurosurgeon, starting on February 14, 2001. Jones testified that Dr. Longmire restricted her from returning to work on a permanent basis due to her back injury; however, in his deposition, Dr. Longmire stated that he did not place any restrictions on Jones. Jones admitted that, aside from her belief that Dr. Longmire had placed her on work restrictions, none of the other doctors she had visited had permanently restricted her from returning to work.

Jones filed her initial complaint for workers’ compensation benefits on April 2, 2001, alleging that she had been injured while working at Premdor on June 6, 2000. Glenda Peak, Premdor’s payroll clerk, testified that this complaint was the first notice she received that Jones was claiming workers’ compensation benefits for a back injury. She testified that ordinarily the payroll department is informed of such claims through paperwork filed by an employee’s supervisor immediately following an accident. Jones filed an amended complaint on July 9, 2001, alleging that she had been injured on May 9, 2000, while on the job. The case proceeded to trial on February 20, 2002. On August 12, 2002, the trial court entered a judgment in favor of Jones, finding that she had sustained a back injury on May 9, 2000, which was “the result of an accident arising out of and in the course of her said employment” with Premdor. The trial court further found that Premdor had “received proper notice of said injury and accident within the time required by law” and that Jones thereafter received medical treatment for the injury with Premdor’s knowledge. The trial court concluded that Jones had sustained a 100% permanent total disability that prevented her from obtaining other gainful employment. Premdor appeals.

Premdor first argues that the trial court’s finding that Jones’s injury occurred on the job is not supported by substantial evidence and is against the great weight of the evidence. Section 25-5 — 81(e)(2), Ala.Code 1975, states that “[i]n reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” “ ‘Substantial evidence’ is defined as ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Edwards v. Kroger Co., 681 So.2d 223, 225 (Ala.Civ.App.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Further, as this court has stated, “ ‘[A] trial court’s factual findings based upon conflicting ore tenus evidence will not be disturbed on appeal unless such findings are “clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.” ’ ” Cleckler v. A & C Air Conditioning & Heating, Inc., 820 So.2d 830, 833 (Ala.Civ.App.2001) (quoting Lindsey v. Watson Van Lines, 722 So.2d 774, 776 (Ala.Civ.App.1998), quoting in turn American Petroleum Equip, v. Fancher, 708 So.2d 129, 132 (Ala.1997)). See also Bethea v. Bruno’s, Inc., 741 So.2d 1090, 1092 (Ala.Civ.App.1999).

Premdor’s argument centers on the evidence presented of the various doctors’ evaluations of Jones. As was recounted above, Jones’s first medical visit following her injury was to the Carraway Northwest Medical Center’s emergency room. The medical report from that visit states that Jones complained of “back pain [which] started on Monday [May 8, 2000],” and that it became worse during the night. It also states that she “denies injury.” Jones testified that she did not say that to the emergency-room personnel and that she “did not know what [the doctor] was writing.” She stated that she told the doctor that she “had mowed the grass on Saturday and that [she] had had a few twinges, but [she] had had those before but they went away.” Id.

Dr. Miller’s notes from Jones’s visit to him on the same day, May 10, 2000, state: “A 44[-year-old white female] comes in today complaining of low back pain, right worse than left. She does not realize anything that she has done. Sort of woke up with it and it began hurting.” Jones denied that she told Dr. Miller that she did not know what had caused the injury.

During her visit to Dr. Marino on May 15, Jones filled out a patient injury form. In the space asking the patient to describe when and how the accident happened, the following is written: “I was mowing the grass with a push-mower. My back started hurting really bad. 5/6/00. Woke Monday [with] pain but worked.” Jones explained this notation by stating that the handwriting was not hers; she stated that she was stopped before she had completed filling out the paperwork Dr. Marino’s personnel had given her and that she did not know what Dr. Marino had written. However, Jones did acknowledge that she had signed the form containing the above description of her injury. Id.

Jones visited Dr. Long on May 23, the day that Jones alleged that she reaggra-vated the back injury. His notes recount the following history of the injury: “Injured back 2 weeks ago while mowing the lawn, has been to chiropractor for treatment for 1 week, was on light duty but was lifting more than usual today and the pain got worse. Also was treated in ER in Winfield with onset of injury.”

Dr. Leslie Fowler’s notes for Jones’s visit to him on June 12, 2000, do not reference whether the injury was work related; they simply state: “Ms. Jones is in today for evaluation of a problem involving her back. She states she injured her back several weeks ago and has been seen by a chiropractor and medical physician since that time.”

Also, as recounted above, Jones visited Carraway Northwest Medical Center’s emergency room on July 12, 2000. The form that Jones filled out on that date contained a space requesting that the patient explain how the injury occurred and when it occurred. In that space Jones wrote: “Back — don’t really know [how it was injured]. 6-5-00.” Jones acknowledged in her testimony that the handwriting on this form was hers, but she stated that she gave the emergency-room doctor the form and told him she needed to explain what she had written. She testified that when the doctor asked her to explain it, she “told him' about the lawn mower and my job.”

Paperwork documenting Jones’s visit to Dr. Boston on July 28, 2000, indicates that she was visiting because of “back pain” due to an injury that occurred on June 5, 2000, at “home.” Jones explained those entries by stating that “I put down [June 5 because] that was my last day I worked, but I explained to [Dr. Boston] what I had done in May, but I didn’t write it down.”

Similarly, Dr. Givhan’s report for Jones’s visit to him on September 7, 2000, states:

“Ms. Jones is a 45-year-old white female referred to me by Dr. Les Fowler for evaluation of back pain. This patient has got a history of back pain which began after lifting a lawn mower at home in May of 2000. She subsequently recovered from this and returned to work doing a job which requires a significant amount of heavy lifting and had severe recurrence of pain radiating in her back and down her left leg.”

Jones visited Dr. Raquib on two occasions. His notes recounting the first visit on November 28, 2000, state, in pertinent part, that Jones complained of “low back pain which started following an injury at work 6/6/00.”

Dr. Longmire stated in his deposition that Jones explained the injury to him in the following fashion:

“She described her chief complaint [as] being one of lower back pain, and she stated that the time of onset was April of 2000, and that she had been mowing her lawn on a Saturday, and then the following Tuesday when she was at work she pushed a heavy buggy, and that her back, quote, unquote, ‘locked.’ ”

Premdor contends that the evidence regarding where Jones sustained her back injury weighs heavily against finding that it occurred at work. Only two doctors, Dr. Raquib and Dr. Longmire, gave any indication that Jones had told them the injury occurred at work; evidence from the other nine medical-care providers either did not indicate how the injury occurred, indicated that Jones had said she did not know how the injury occurred, or indicated that Jones had recounted that the injury occurred at home when she was mowing the lawn. Jones’s own testimony also seems to indicate that the first time she felt back pain of a significant nature was when she was mowing her mother’s lawn on Saturday May 6, 2000.

While Premdor’s argument that the trial court’s finding was against the great weight of the evidence is not without merit, we need not decide that issue because it is mooted by our holding as to one of Premdor’s alternative arguments. Specifically, Premdor contends that it did not receive adequate notice of the alleged May 9, 2000, injury within the time required by law. We agree.

Section 25-5-78, Ala.Code 1975, provides, in pertinent part, that “no compensation shall be payable [to an injured employee] unless written notice is given within 90 days after the occurrence of the accident....” “An employee is not entitled to workers’ compensation benefits if she fails to provide notice.” Bethea v. Bruno’s, Inc., 741 So.2d at 1092. This court has stated that “[t]he purpose of written notice is to advise the employer that the employee received a specified injury, in the course of his employment, at a specified time, and at a specified place, so that the employer may verify the injury by its own investigation.” Davis v. Paragon Builders, 652 So.2d 762, 764 (Ala.Civ.App.1994).

Jones admits that she did not provide written notice of her injury to Prem-dor within 90 days of its occurrence. However, even though § 25-5-78

“does generally require that written notice be given to an employer by an injured employee within 90 days of an accident in order to recover compensation, ... written notice is not required if it is shown that an employer had actual notice of the injury. Oral notice is sufficient to constitute actual notice.”

Ex parte Harris, 590 So.2d 285, 287 (Ala.1991) (internal citations omitted). Our Supreme Court determined that written notice was not required because

“after reading the language now codified at § 25-5-78 in pari materia with that codified at §§ 25-5-59 and 25-5-88 ... the Court concluded the employer’s actual knowledge should be considered the equivalent of the statutory notice, ‘in keeping with the humane spirit of compensation laws.’ [Ex parte Stith Coal Co., 213 Ala. [399,] 400, 104 So. [756,] 757 (1925) ].”

Alfa Life Ins. Corp. v. Culverhouse, 729 So.2d 325, 328 (Ala.1999).

Jones contends that she gave oral notice of her alleged workplace injury to agents of Premdor within 90 days of its occurrence. The question presented, however, is whether the content of that notice was sufficient.

Our Supreme Court has stated:

“[W]ritten notice is not required if the employer had actual knowledge that the employee was injured in the scope of his or her employment. Wal-Mart Stores, Inc. v. Elliott, 650 So.2d 906, 908 (Ala. Civ.App.1994). The employer must have actual knowledge that the employee’s injury was connected to the employee’s work activities. Id.”

Ex parte Brown & Root, Inc., 726 So.2d 601, 602 (Ala.1998). In Russell Coal Co. v. Williams, 550 So.2d 1007 (Ala.Civ.App. 1989), this court defined “actual knowledge” for this purpose as:

“ ‘knowledge of such information as would put a reasonable man on inquiry.... Mere knowledge of disability following a traumatic injury is not sufficient, for the facts and circumstances of either the disability or the injury must be such as would put a reasonable man on inquiry that the disability is work-related.’ ”

550 So.2d at 1012 (quoting Pojanowski v. Hart, 288 Minn. 77, 81, 178 N.W.2d 913, 916 (1970)).

As previously noted, Jones testified that she first informed Premdor of her injury when, approximately an hour after she had allegedly sustained the injury, she informed plant manager Larry Cagle that her back was hurting. Responding to questions from her attorney, Jones testified that she told Cagle: “I just said, on the day of the injury, I told him, I said, T did something to my back,’ I said, ‘because it hurts,’ and he said, ‘well, you know, because everyone complains about such things.’ I thought it would go away.” Jones again related the substance of the conversation when questioned by Prem-dor’s attorney: “Well, I was hurting and kind of sweating, and he asked me kind of what was wrong, and I said, ‘Well, I did something to my back because I’m hurting,’ and that was the end of the conversation.” Jones also testified that on May 23, the day after she had returned to work following the initial injury, she informed her supervisor Kenny Price that she had injured her back. Specifically, Jones testified: “I said, ‘Kenny, I have hurt my back.’ ... I left and told him I had to get something done.”

While Jones’s statements to Cagle, and later to Price, informed the Premdor agents that Jones had injured her back, those statements did not advise whether the injury occurred while Jones was performing her work duties. “The fact that an employer is aware that an employee has pain or [suffers from] a medical problem is not, by itself, sufficient to charge the employer with actual knowledge.” Russell Coal Co., 550 So.2d at 1012. The employer must be notified that the employee was injured in the course of her employment. E.g., Ex parte Brown & Root, Inc., 726 So.2d 601; Russell Coal Co., 550 So.2d 1007; Bethea v. Bruno’s, Inc., 741 So.2d at 1092. By failing to inform Premdor that she injured her back while at work, Jones failed to comply with the notice requirement of the Workers’ Compensation Act.

In contrast to her testimony regarding what she told Cagle and Price, Jones testified that sometime between September and November 2000 she went to the Premdor plant with a friend while she was off work and informed Premdor’s general manager, Willie Hilliard, that “I had hurt my back on the job from pushing those heavy buggies. He told me that I would have to prove that.” Jones specifically made this trip for the purpose of inquiring of Hilliard about obtaining workers’ compensation benefits for the injury. But for its timing, this particular oral notification would have been sufficient in that it informed Premdor both that Jones had injured her back and that the injury had occurred on the job. However, because this notification was given, by Jones’s own estimation, at least four and as much as six months after the date of the alleged injury, it did not qualify as timely notification under § 25-5-78.

“Notice of injury is the first step in the compensation procedure, and its purpose is two-fold:. ‘first, to enable the employer to provide immediate medical diagnosis and treatment in an effort to minimize the seriousness of the injury; and second, to facilitate the earliest possible investigation of the facts surrounding the injury.’ ”

Thomas v. Gold Kist, Inc., 628 So.2d 864, 866 (Ala.Civ.App.1993) (quoting Harbin v. United States Steel Corp., 356 So.2d 179, 182 (Ala.Civ.App.1978)). See, e.g., Davis, 652 So.2d at 764 (“Like written notice, oral notice imparts to the employer the opportunity to investigate and to protect itself against simulated and exaggerated claims.”). “Without notice, the employee is not entitled to benefits.” Gold Kist, Inc., 628 So.2d at 866.

Jones was aware of the proper procedure for providing notice to her employer concerning on-the-job injuries. Although she had provided timely notice of on-the-job injuries on two previous occasions, she did not do so in this instance. Jones’s oral statements to Cagle and Price did not provide Premdor with adequate notice that she had sustained an injury while on the job. Therefore, we find the trial court’s conclusion that Jones gave Premdor timely and proper notice of her injury to be in error. Accordingly, we reverse the trial court’s judgment awarding workers’ compensation benefits to Jones for her injury, and we remand the case for the trial court to enter a judgment consistent with this opinion. This determination pretermits any need to discuss Premdor’s other arguments concerning the judgment of the trial court.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

      . Jones was not asked at trial to explain this entry in the notes.

      . Jones was not asked about the contents of this report because the trial court initially deemed it inadmissible. The trial court later admitted the report after Jones had completed her testimony.


author: YATES, Presiding Judge.

text:
    Donna Lynn Popwell McCARTHY v. Arthur J. POPWELL.
    2020547.
    Court of Civil Appeals of Alabama.
    Nov. 14, 2003.
    Richard D. Lively, Prattville, for appellant.
    Joy Pace Booth of McDowell, Faulk & McDowell, L.L.C., Prattville, for appellee.
   YATES, Presiding Judge.

This is a child-support-modification case.

Donna Lynn Popwell McCarthy (“the mother”) and Arthur J. Popwell (“the father”) were divorced on February 28,1985. A son was born of the marriage in 1988. In 1989, the father was awarded primary physical custody of the parties’ son and the mother received visitation. The mother was ordered to pay $57 per month in child support and to maintain medical insurance for the son. On June 20, 2002, the father moved for a modification of child support, requesting postminority educational support for the son, who had not reached the age of 19, although he had started college in the fall of 2001. He requested, among other things, that the court order the mother to pay one-half of the son’s expenses for tuition, room, board, transportation, books, and materials while the son attended college. The mother timely answered, claiming that she was without sufficient estate, earning capacity, or income to provide the requested postminority educational support. Following an ore tenus proceeding in which only the father testified, the court, on February 11, 2003, entered the following order on the case action summary sheet:

“Case called on [issue of postminority educational] support, testimony taken, [u]pon hearing the evidence and testimony on issue of [postminority educational] support for the parties^] son who is attending college in Memphis, Tenn. Court upon hearing the testimony requires the mother, Donna Lynn Popwell McCarthy, to pay [postminority educational] support in the sum of $280.00 per month, commencing 3-1-08, and continuing each month so long as the parties[’] son is pursuing his college degree and maintaining at least a C [average.”

No postjudgment motions were filed. The mother appeals.

The mother argues that the trial court erred in requiring her to pay postmi-nority educational support without first considering the financial resources of both parents. She contends that, because the record is silent in regard to her financial resources, the court impermissibly awarded postminority educational support. We agree.

“[Ex parte] Bayliss, [550 So.2d 986 (Ala.1989),] clearly specifies those factors that shall, and those that may, be considered by the trial court when it is deciding whether to order support for postminority college education. In an award of postminority educational support for a child of divorced parents, the trial court ‘ “shall consider all relevant factors that shall appear reasonable and necessary, including primarily the financial resources of the parents and the child and the child’s commitment to, and aptitude for, the requested education.” ’ A.L. v. B.W., 735 So.2d 1237, 1239 (Ala. Civ.App.1999); Thompson v. Thompson, 689 So.2d 885, 887 (Ala.Civ.App.1997) (quoting Ex parte Bayliss, 550 So.2d 986, 987 (Ala.1989)). The court suggested that trial courts also should consider ‘the standard of living that the child would have enjoyed if the marriage had not been dissolved and the family unit had been preserved and the child’s relationship with his parents and responsiveness to parental advice and guidance.’ Id. at 987. The trial court must also determine if the noncustodial parent has ‘sufficient estate, earning capacity, or income to provide financial assistance without undue hardship.’ Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990). Undue hardship does not imply the absence of personal sacrifice, because many parents sacrifice to send their children to college. Id.”

Penney v. Penney, 785 So.2d 376, 378-79 (Ala.Civ.App.2000).

The father presented some evidence of his financial resources. He testified that he is a self-employed general contractor and that he manages a hay farm. He estimated that his income for the year 2002 was between $30,000 and $35,000. The father admitted that he owned 25 acres of land upon which a house, a barn, and a hay farm are located. The record indicates that the father had taken out loans in order to assist the son with his college expenses and that he pays for the son’s automobile insurance. Despite the parties’ stipulation as to the son’s aptitude for and commitment to college, the father presented evidence of the son’s grades; that evidence indicated that since entering Christian Brothers University in the fall of 2001 the son had maintained full-time status, had maintained above a “C” average, and was majoring in civil engineering. The father also presented evidence of the cost of the son’s tuition, books, and fees for the fall 2001, spring 2002, summer 2002, fall 2002, and spring 2003 semesters. He asserted that the son would have to move to campus because the commute from his home to the university was detracting from the son’s study time. The father presented similar evidence of the cost of the son’s tuition, room, board, books, travel, and expenses if he attended an in-state university with a comparable program.

The father testified that the mother, who resides in Prattville, had not contributed funding toward the son’s college expenses. He contended that the mother could work and contribute to the son’s college expenses if she so desired. Despite his contention, the father admitted that he had no knowledge of the mother’s physical condition or her financial resources. Further, the record does not reflect that any evidence concerning the mother’s financial resources was presented to the court. The record does reflect that the father propounded discovery requests to the mother on August 2, 2002, and that he moved to compel answers to that discovery on September 26, 2002. On October 3, 2002, the mother filed a notice of filing answers to discovery. Those answers are not a part of the record. The parties were directed in a pretrial order entered on June 21, 2002, to file completed CS-41 child-support-obligation income-statement/affidavit ■ forms. See Rule 32, Ala. R. Jud. Admin. Those forms are not a part of the record.

By seemingly considering evidence only of the father’s financial resources, we cannot say that the court properly awarded postminority educational support in the amount of $280 per month. Therefore, the judgment must be reversed.

The mother next argues that the trial court erred in failing to place sufficient restrictions on its postminority-sup-port award. She alleges that the judgment should be reversed also because it failed to limit the support to a reasonable period.

“Following Bayliss, this court has held that the trial court must set reasonable limitations on the parent’s responsibility for postminority education support, because a failure to do so may impose an undue hardship on the paying parent. These limitations include (1) limiting the support to a reasonable period, (2) requiring the child to maintain at least a ‘C’ average, and (3) requiring that the child be enrolled as a full-time student.”

Penney, 785 So.2d at 379 (internal citations omitted).

Here, the court properly conditioned the award upon the son maintaining a “C” average; however, it failed to limit the award of postminority educational support to a reasonable period and it failed to require the son to maintain full-time status. The judgment is therefore reversed, and the case is remanded for the trial court to enter an order consistent with this opinion.

REVERSED AND REMANDED.

CRAWLEY, THOMPSON, PITTMAN, and MURDOCK, JJ., concur.

      . The father and the son reside in Hernando, Mississippi; however, the son commutes to college in Memphis, Tennessee. Additionally, the son works for the father, but he does not receive a salary.


author: THOMPSON, Judge.

text:
    J.L.E., Jr. v. T.L.S.
    2020624.
    Court of Civil Appeals of Alabama.
    Nov. 14, 2003.

      Thomas S. Smith, Dothan, for appellant.
    T.L.S., pro se.
   THOMPSON, Judge.

J.L.E., Jr. (“the father”), and T.L.S. (“the mother”) were divorced on March 15, 1999, by a judgment of a superior court of the State of California. Two children were born of the parties’ marriage; the mother was awarded primary physical custody of the children pursuant to the divorce judgment. After the parties divorced, the father moved to Arkansas. Shortly thereafter, the mother and the children moved to Arkansas.

On January 4, 2001, the father petitioned an Arkansas chancery court (“the Arkansas court”) for a change of custody of the parties’ children. The mother, aet-ing pro se, responded to the father’s petition on January 23, 2001. The mother stated in her response that the children had resided in Arkansas for the previous 11 months and that Arkansas was the home state of the parties’ children.

Following a May 23, 2001, hearing, the Arkansas court entered a “temporary order” on May 31, 2001, in which it awarded temporary custody of the children to the father and awarded the mother scheduled visitation. The Arkansas court enjoined the parties from removing the children from that state and scheduled the matter for a review hearing. On July 30, 2001, following a review hearing at which the mother was represented by counsel, the Arkansas court continued custody of the children with the father; a second review hearing was set for May 2002.

At some point following the July 30, 2001, review hearing, the mother moved to Alabama with the children. On November 5, 2001, the mother filed a motion for emergency temporary custody in the juvenile court of Houston County, Alabama (“the trial court”). In that emergency motion, the mother alleged that the father was subjecting the children to physical and emotional abuse. The mother also alleged that the father was neglecting to properly supervise the children, who were age six and four, respectively, at that time. At a hearing before the trial court, the mother testified that she feared the children were being abused by the father. The trial court granted the mother’s motion on November 5, 2001, and awarded the mother temporary custody of the children. The trial court also appointed a guardian ad litem for the children and ordered the Department of Human Resources to complete a forensic evaluation of the children. A forensic psychologist examined the children and concluded that they had been subjected to “overzealous physical punishment to the extent that it appears to have been abusive.”

On November 7, 2001, the father filed, in the Arkansas court, a motion for contempt and a motion to suspend visitation. On November 9, 2001, the mother filed, in the trial court, a motion to stay the execution of a warrant for her arrest issued in Arkansas because of her “interference of custody of the parties’ minor children.” The trial court granted that motion. Following a hearing before the Arkansas court on November 30, 2001, at which counsel for the mother was present, the Arkansas court found that it had continuing subject-matter jurisdiction and that it appeared that the mother’s action in the trial court presented “a clear cut jurisdictional issue due to the pending case before [the Arkansas] court, and the fact that Arkansas is clearly the home state of the children.”

On November 20, 2001, counsel for the father filed a notice of appearance in the trial court. On December 18, 2001, the father filed a limited response, stating that he was not submitting to the jurisdiction of the trial court; he also filed a motion to dismiss the action for lack of subject-matter jurisdiction. On May 3, 2002, the father filed a renewed motion to dismiss. The trial court set the matter for a hearing on June 5, 2002.

On June 5, 2002, the mother filed a motion requesting that the trial court render a permanent determination as to custody. Following an ore tenus hearing, the trial court entered a judgment on July 10, 2002, in which it found that it was in the children’s best interests that it retain permanent jurisdiction over the children, specifically finding that

“(A) The children have one parent who resides in this state.
“(B) The children have resided in this state for the past eight months and have attended school in this state.
“(C) There is available in this state, substantial evidence concerning the children’s present or future care, protection, training, and personal relationships.
“(D) The children were examined by a clinical forensic psychologist in this state and he issued a report to this court. In this report, the allegations of abuse against the father were founded.... ”

On July 23, 2002, the father made an oral motion for a new trial. The trial court granted the father 14 days to submit written grounds in support of his motion. The father submitted written grounds on August 1, 2002. On August 8, 2002, the trial court denied the father’s motion for a new trial. The father filed an untimely appeal to this court that was subsequently dismissed on motion of the mother. The father then filed a petition for the writ of certiorari with the Alabama Supreme Court on October 29, 2002; that court subsequently denied the writ without an opinion on January 24, 2003. Ex parte J.L.E., Jr., (No. 1020249) 881 So.2d 551 (Ala.2003)(table). This court issued a certificate of judgment on January 27, 2003.

On March 28, 2003, the father filed a motion to set aside the trial court’s July 10, 2002, order pursuant to Rule 60(b), Ala. R. Civ. P., alleging that the judgment of the trial court was void for lack of subject-matter and personal jurisdiction. The trial court denied the father’s Rule 60(b) motion, noting on the case action summary sheet that it “lacked jurisdiction” to consider the Rule 60(b) motion. The father timely appealed.

On appeal, the father argues that the trial court erred in refusing to set aside its July 10, 2002, order as void. The father sought relief from the July 10, 2002, order pursuant to Rule 60(b)(4), which provides relief from the effects of a judgment where that judgment is void.

“The standard of review on appeal from the denial of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process. Satter-field v. Winston Industries, Inc., 553 So.2d 61 (Ala.1989).”

Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991).

In support of his contention on appeal, the father asserts that the trial court had jurisdiction to consider the Rule 60(b)(4) motion because, he maintains, the motion was filed within a reasonable period of time. Rule 60(b), Ala. R. Civ. P., provides that a motion made pursuant to Rule 60(b)(4) “shall be made within a reasonable time.” “ ‘What constitutes a “reasonable time” depends on the facts of each case, taking into consideration the interest of finality, the reason for the delay, the practical ability to learn earlier of the grounds relied upon, and the prejudice to the other parties.’ ” Bryant v. First Tuskegee Bank, 866 So.2d 1139, 1142 (Ala.Civ.App.2002)(quoting Ex parte W.J., 622 So.2d 358, 361 (Ala.1993)).

The record indicates that the father filed a motion for relief from the trial court’s judgment pursuant to Rule 60(b)(4) approximately eight and one-half months after the trial court entered its July 10, 2002, order, and approximately two months after the supreme court denied the father’s petition for the writ of certiorari on January 24, 2003, and this court issued a certificate of judgment on January 27, 2003. Shortly after the disposition of the father’s first appeal, the father filed his Rule 60(b)(4) motion. The record supports a conclusion that the father filed his Rule 60(b)(4) motion “within a reasonable time.”

We further note that Rule 60(b), Ala. R. Civ. P., provides that “[ljeave to make [a Rule 60(b)] motion need not be obtained from any appellate court except during such time as an appeal from the judgment is actually pending before such court.” This'court dismissed the father’s appeal in September 2002. The father filed a petition for the writ of certiorari in the supreme court that was denied in January 2003, and this court subsequently issued a certificate of judgment in January 2003. The father then filed a Rule 60(b) motion approximately two months later. The trial court might have assumed that an appellate court still had jurisdiction over the action. Because the father’s first appeal had been disposed of approximately two months before he filed his Rule 60(b) motion, the father was not required to obtain leave from an appellate court in order for the trial court to have jurisdiction over his Rule 60(b) motion.

The father filed his Rule 60(b) motion “within a reasonable time” and after the disposition of his first appeal. Given these facts, we conclude that the trial court had jurisdiction to consider the father’s motion. Therefore, the trial court’s judgment is reversed, and this case is remanded for the trial court to consider the merits of the father’s Rule 60(b)(4) motion.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY, PITTMAN, and MURDOCK, JJ., concur.

      . The parties' briefs on appeal indicate that the mother moved to Alabama in November 2001; however, there is no indication in the record of the date the mother moved to Alabama.

      . Rule 60(b) is neither a substitute for a timely appeal nor a mechanism for obtaining a second appeal. Woodward v. State ex rel. Woodward, 664 So.2d 211 (Ala.Civ.App.1994). However, the father's Rule 60(b)(4) motion attacks the validity of the judgment; therefore, we consider this appeal.