author: CRAWLEY, Judge. YATES, Judge,

text:
    Dr. Linda YOUNG, in her official capacity as president of George C. Wallace State Community College; and George C. Wallace State Community College v. John McLEOD.
    2990440.
    Court of Civil Appeals of Alabama.
    Jan. 5, 2001.

      Edward M. George and Jeffery A. Fosh-ee of Foshee & George, L.L.C., Montgomery; and R. Rainer Cotter III of Cassady, Fuller & Marsh, Enterprise, for appellants.
    Gregory B. Stein of Stein & Brewster, Mobile; and Thomas K. Brantley of Parkman, Brantley, LaMere & Atwell, Dothan, for appellee.
   CRAWLEY, Judge.

George C. Wallace State Community College (“the college”) and Dr. Linda Young, in her official capacity as its president, appeal from a judgment of the circuit court holding that John McLeod, a speech and theater instructor at the college, is entitled to backpay and benefits as a full-time tenured teacher.

This is the second time the parties have been before this court. In McLeod v. Beaty, 718 So.2d 673 (Ala.Civ.App.1996), reversed, Ex parte McLeod, 718 So.2d 682 (Ala.1997), McLeod argued that he was entitled to tenure under the Fair Dismissal Act, § 86-26-100 et seq., Ala.Code 1975 (“the FDA”). A majority of this court rejected that argument, holding that the FDA does not apply to instructors at the state’s junior colleges. Instead, we held, instructors at the state’s two-year educational institutions are governed by (and earn tenure according to the regulations promulgated pursuant to) the Alabama Trade School and Junior College Authority Act, see § 16-60-80 et seq., Ala.Code 1975, (“the ATSJCAA”).

McLeod petitioned the Alabama Supreme Court for certiorari review, arguing that this court had erred in holding that the FDA does not apply to him. The supreme court granted review and reversed the judgment of this court. Ex parte McLeod, supra, 718 So.2d 682. Justice Butts authored the main opinion for the supreme court, stating that “instructors ... at two-year colleges fall within coverage of the [Fair Dismissal] Act.” 718 So.2d at 687. Only one member of the court, Justice Shores, concurred with the statement that the FDA applies to junior-college instructors.

Justice Almon concurred specially, with an opinion joined by Justice Maddox. He stated, “I would hold that the Fair Dismissal Act does not apply to junior college and trade school faculty members.” 718 So.2d at 689 (Almon, J., concurring specially) (emphasis added). Justice Almon expressed the opinion that § 16-60-111.4(5), a part of the ATSJCAA, governed the achievement of tenure for instructors at two-year institutions. He also noted that the State Board of Education had, pursuant to the legislative authority granted in § 16-60-111.4(5), promulgated tenure regulations for junior-college instructors. Id. Those regulations are found in the “Policies, Procedures, and Regulations Governing Alabama State Community, Junior, and Technical Colleges/Institutes, 1979,” specifically § 617(3)(A) of the “Revised Hearing Procedure” (“the RHP”).

Justice Almon’s special concurrence pointed out that the RHP “tracks the language of § 36-26-101(a), part of the Fair Dismissal Act,” by providing that, before an instructor at a state junior college can gain tenure, he must be employed on a probationary status for a period not to exceed three years. 718 So.2d at 689. Justice Almon observed that the chancellor of the Postsecondary Education Department had interpreted the RHP to require that, in order to be eligible for tenure, a junior-college instructor must have three consecutive years of probationary service, whereas the Alabama Supreme Court, construing a virtually identical provision of the FDA, had held that the three years of probationary service need not be consecutive or continuous. See Ex parte Clayton, 552 So.2d 152, 154-55 (Ala.1989).

Justice Almon thought that, because the wording of the RHP was virtually identical to a corresponding provision in the FDA, the two provisions should be interpreted to state the same tenure requirement, namely, that the three years’ probationary service required for tenure need not be consecutive or continuous. Concluding that the chancellor’s interpretation of the RHP was contrary to the supreme court’s interpretation of — and the legislative intent behind — the FDA, Justice Almon voted to reverse the judgment. He stated that, on remand, the RHP should be applied “in a manner consistent with [the supreme] court’s holding in Clayton.” 718 So.2d at 690.

Justice See concurred in the result, without writing. Chief Justice Hooper and Justice Kennedy dissented, also without writing. Justice Cook recused himself. Therefore, of the seven Justices who participated in the decision, only three, at the most (Justice Butts, Justice Shores, and possibly Justice See) believed that the FDA states the requirements for attaining tenure at the state’s two-year educational institutions. At least two Justices (Justices Maddox and Almon) disagreed, stating that the ATSJCAA, rather than the FDA, controls the achievement of tenure. Two other Justices (Chief Justice Hooper and Justice Kennedy) dissented from the reversal without explaining the basis for their disagreement.

This court is bound by the decisions of the Alabama Supreme Court. See § 12-3-16, Ala.Code 1975. “[0]f course, the ‘decisions of the supreme court’ referred to in said Code Section ... [are] the ‘decisions of the majority' of the Supreme Court.” Willis v. Buchman, 30 Ala.App. 33, 40, 199 So. 886, 892, rev’d on other grounds, 240 Ala. 386, 199 So. 892 (1940) (emphasis in original). A statement in which only two members of the court concur is not, therefore, a “decision” of the Alabama Supreme Court by which we are bound. See also Rule 16(b), Ala. R.App. P. Because Ex parte McLeod, 718 So.2d 682, provides us with no clear holding as to the reach of the FDA, we deem it appropriate to reexamine the issue, particularly in light of earlier binding precedent from the Alabama Supreme Court and a recent decision by that court in Stephenson v. Lawrence County Bd. of Educ., 782 So.2d 192 (Ala.2000).

McLeod’s Claims Are Not Barred by Sovereign Immunity

Dr. Young and the college argue that McLeod’s claims are barred by the sovereign immunity provided the State of Alabama by § 14 of the Constitution. This argument was previously presented to and addressed by this court in the initial appeal and by the supreme court on certiora-ri review. In Ex parte McLeod, Justice Butts stated the law as it pertains to § 14:

“In general, § 14 prohibits the State and its agencies from being made defendants in any court. Alabama State Docks v. Saxon, 631 So.2d 943 (Ala.1994). This protection from suit also applies to officers or agents of the State who are sued in their official capacities or individually, when the action is, in effect, one against the State. Mitchell v. Davis, 598 So.2d 801 (Ala.1992); Phillips v. Thomas, 555 So.2d 81 (Ala.1989). However, the immunity from suit conferred by § 14 is not absolute. A state officer is not immune from suit when he or she has acted under a mistaken interpretation of the law, when the lawsuit is to compel the performance of a legal duty or ministerial act, or where the lawsuit is brought under the Declaratory Judgment Acts.”

718 So.2d at 684. Justice Butts stated that the counts alleged in McLeod’s complaint fell within the exceptions to the protection from suit provided by § 14 and that McLeod’s complaint was not barred by the doctrine of sovereign immunity. Id. It appears that a majority of the supreme court concurred with that statement. As previously noted, Justice Shores concurred in the main opinion authored by Justice Butts. Justice See concurred in the result. Whether a complaint is barred by the doctrine of sovereign immunity is generally a threshold issue to be resolved. See Gunter v. Beasley, 414 So.2d 41 (Ala.1982). It can be assumed that because Justice See concurred in the result of the opinion he necessarily concurred in Justice Butts’s conclusion that McLeod’s complaint was not barred by the doctrine of sovereign immunity. Justice Almon and Justice Maddox concurred specially, stating that they disagreed with Justice Butts’s conclusion that the FDA applies to instructors such as McLeod. Justice Al-mon and Justice Maddox did not state that they disagreed with Justice Butts’s conclusion that McLeod’s complaint was not barred by the doctrine of sovereign immunity; thus, it must be assumed that they agreed with that conclusion. Therefore, at least five Justices, a majority of the court, determined that McLeod’s complaint was not barred by the doctrine of sovereign immunity; that determination became the law of the ease.

What Employees Are Covered by the FDA?

Section 86-26-100, Ala.Code 1975, the “coverage” provision of the FDA, states:

“The term ‘employees,’ as used in this article, is deemed to mean and include all persons employed by ... two-year educational institutions under the control and auspices of the state board of education ... who are so employed as bus drivers, lunchroom or cafeteria workers, maids and janitors, custodians, maintenance personnel, secretaries and clerical assistants, supervisors and all-other persons not otherwise certified by the state board of education. Only full-time employees who are not otherwise covered by the state merit system, the teacher tenure law, or other state statute at the time this article is adopted are intended to be covered by this article. Full-time employees include (a) adult bus drivers and (b) other employees whose duties require 20 or more hours in each normal working week of the school term, employing board holidays excepted. Substitute teachers and substitute employees are excluded from the article.”

(Emphasis added.) A majority of this court has previously held that the FDA does not apply to junior-college instructors. See McLeod v. Beaty, 718 So.2d 673 (Ala.Civ.App.1996). We reiterate that holding today, and we now restate and elaborate upon our reasons.

(1) The title of the FDA excludes teachers from coverage. The FDA states that it establishes “[dismissal procedures for non-teacher, non-classifíed, etc. employees in certain school systems, institutions, etc.” (Emphasis added.) See McLeod v. Beaty, 718 So.2d at 678.

(2) Our supreme court has repeatedly stated that “the overall purpose of the ‘Fair Dismissal Act’ ... is to provide non-teacher employees a fair and swift resolution of proposed employment terminations.” See Bolton v. Board of School Comm’rs of Mobile County, 514 So.2d 820, 824 (Ala.1987) (emphasis added); Ex parte Holifield, 604 So.2d 420, 422 (Ala.1991); Ex parte Alabama Inst. for Deaf & Blind, 578 So.2d 1308, 1310 (Ala.1991).

This court, too, has frequently observed that the Act applies to “nonteacher” employees. See Gainous v. Tibbets, 672 So.2d 800, 803 (Ala.Civ.App.1995); Williams v. Ward, 667 So.2d 1375, 1377 (Ala.Civ.App.1994); Saulsberry v. Wilcox County Bd. of Educ., 641 So.2d 283, 285 (Ala.Civ.App.1993); Hardy v. Birmingham Bd. of Educ., 601 So.2d 87, 92 (Ala.Civ.App.), rev’d on other grounds, Ex parte Birmingham Bd. of Educ., 601 So.2d 93 (Ala.1992).

(3) Three recognized canons of statutory-construction suggest that junior-college instructors are not covered by the FDA. First, the rule of noscitur a sociis, dictating that “words grouped in a list should be given related meaning,” see Stephenson v. Lawrence County Bd. of Educ., 782 So.2d 192, 197 (Ala.2000), indicates that the list of persons covered by the FDA (“bus drivers, lunchroom or cafeteria workers, maids and janitors, custodians, maintenance personnel, secretaries, ... clerical assistants, [and] supervisors”) includes year-round support staff, but not instructional personnel. See Uwakolam v. Huntsville City Bd. of Educ., 554 So.2d 1036, 1038 (Ala.Civ.App.1989) (stating that “[t]he employees dealt with under [§ 36-26-10Ó et seq.] are nonteachers employed year round”).

Second, the rule of ejusdem generis, dictating that general words following the enumeration of particular classes of persons are construed to apply only to persons in the same general class as those specifically enumerated, see Lambert v. Wilcox County Comm’n, 623 So.2d 727, 731 (Ala.1993); McLeod v. Beaty, 718 So.2d at 679, indicates that the “other persons” covered by the FDA are those whose jobs are of the same kind as the employees specifically enumerated, i.e., year-round support staff rather than instructional personnel.

Third, the rule that “a specific statute relating to a specific subject is regarded as an exception to, and will prevail over, a general statute relating to a broad subject,” see Druid City Hosp. Bd. v. Epperson, 378 So.2d 696, 699 (Ala.1979), indicates that the FDA does not apply to instructors at the state’s junior colleges, because those instructors are covered by another, more specific, statute. Cf. Stephenson v. Lawrence County Bd. of Educ., 782 So.2d at 195-96 (holding that statutes relating to the appointment and dismissal of a custodian of school funds for a county school system were specific and prevailed over a general statute allowing the county superintendent of schools to recommend the hiring and firing of “principals, teachers, and all other regular employees of the [school] board”); Murphy v. City of Mobile, 504 So.2d 243 (Ala.1987) (holding that a statute establishing a majority-vote requirement for the appointment of municipal judges by a seven-member city council was specific and took precedence over a general statute setting out a five-vote requirement for the transaction of city council business); Machen v. Scottsboro City Bd. of Educ., 537 So.2d 27 (Ala.Civ.App.1988) (holding that a statute relating to “bus drivers” was specific and prevailed over a general statute relating to “all full-time support employees working a minimum of 20 hours per week”); Stough v. B & B Pallet Repair, Inc., 778 So.2d 193 (Ala.Civ.App.2000) (holding that a statute dealing with “minors employed contrary to law” was specific and governed over a general provision listing “minors” as a subcategory of “employees” under the workers’ compensation law). Because the ATS-JCAA contains a specific provision relating to the tenure requirements for junior-college instructors, it takes precedence over the FDA, a more general statute dealing with the procedures to be followed in dismissing “persons employed by ...' two-year educational institutions.”

(4) The ATSJCAA was enacted in 1982. Section 16-60-111.4 was adopted in 1982 as part of Act No. 82^486, Ala. Acts 1982, p. 805, § 6. The FDA was enacted in 1983. Section 36-26-100 was adopted in 1983 as part of Act No. 83-644, Ala. Acts 1983, p. 1004, § 1. Thus, by the time the FDA was passed, junior-college instructors were “otherwise covered by [another] state statute,” and were, therefore, excluded from the reach of the FDA. See Williams v. Ward, 667 So.2d 1375, 1377 (Ala.Civ.App.1994) (holding that a full-time, tenured teacher at a state junior college was not covered by the FDA but was “otherwise covered by” § 16-60-111.4(5)). Accord Shuford v. Alabama State Bd. of Educ., 978 F.Supp. 1008, 1024 (M.D.Ala.1997), affirmed, 152 F.3d 935 (11th Cir.1998) (stating that “[a]t the time the Alabama Fair Dismissal Act was adopted, junior college presidents were already covered by § 16-60-111.4”).

The FDA does not govern the tenure requirements for junior-college instructors, because, in the words of § 36-26-100 (part of the FDA), those instructors are “otherwise covered ... by [another] state statute.” In a series of unanimous decisions, our supreme court has indicated that whether instructors at the state’s two-year educational institutions are tenured is determined by reference to the ATSJCAA, specifically § 16-60-111 and the regulations promulgated thereunder.

In Webster v. Byrd, 494 So.2d 31 (Ala.1986), our supreme court recognized that tenure policies regarding instructors at the state’s junior colleges are established by rules and regulations promulgated by the board of education. According to the court, the board of education derives its authority to make such rules and regulations from § 16-60-111. Webster v. Byrd was decided in 1986, three years after the enactment of the FDA; yet the court had no hesitation in concluding that the ATS-JCAA, § 16-60-110 et seq., gave the state board of education the “authority to make rules and regulations to govern the hiring and firing of tenured instructors in our trade schools and junior colleges.” 494 So.2d at 32. The court did not mention the FDA.

In Owen v. Rutledge, 475 So.2d 826 (Ala.1985), the court held that the writ of mandamus can be used to enforce tenure rights “of teachers employed by junior, community, and technical colleges under the provisions of § 16-60-111 (now § 16-60-111.4) and rules and regulations duly adopted under the authority of that statute by the Alabama State Board of Education.” 475 So.2d at 827 (emphasis added). The court did not mention the FDA.

In Hulcher v. Taunton, 388 So.2d 1203 (Ala.1980), the court held that a teacher at a state technical school earned tenure by virtue of the Alabama State Board of Education’s “tenure policy for trade and technical schools.” 388 So.2d at 1204. Even though the decision in Hulcher predated the enactment of both the ATSJCAA and the FDA, it is instructive because it illustrates our supreme court’s recognition, as early as 1980, that the state’s postsecond-ary institutions already had in place a tenure policy for instructors at two-year schools and colleges. See Hulcher v. Taunton, 388 So.2d at 1204-05 & n. 2 (noting that a teacher-tenure policy for postsecondary school instructors had existed since 1967). That policy gave teachers in postsecondary institutions the same “job security as others in public education.” Id. The ATSJCAA merely codified the authority of the board of education, acting through the chancellor of the Postsecond-ary Education Department, to establish a tenure policy for postsecondary teachers. See § 16-60-111.4(5).

This court, too, has held that questions concerning the state’s postsecondary teachers are governed by the ATSJCAA. In Klein v. State Bd. of Education, 547 So.2d 549 (Ala.Civ.App.1988), we stated:

“Pursuant to section 16-60-110(6), Code 1975, the postsecondary education de-partmeñt has been delegated the responsibility of directing and supervising the state’s junior colleges. Additionally, a chancellor has been established as the chief executive officer of the department. §§ 16-60-111.1 and -110.5, Code 1975. The chancellor has the authority to control, manage, and regulate the junior colleges and, concomitantly, to make those decisions necessary for the schools’ proper management. §§ 16-60-111.2 and -111.6, Code 1975. Each junior college president makes the day-today decisions necessary for his school’s operation and is responsible to the chancellor for those decisions. § 16-60-111.6, Code 1975.”

547 So.2d at 551.

In Christeson v. Northwest Alabama State Junior College, 371 So.2d 426 (Ala.Civ.App.1979), this court unequivocally held that the right of tenure at a state junior college arises “from the provisions of § 16-60-111, [Ala.Code 1975;] and rules and regulations duly adopted under authority of said statute by the Alabama State Board of Education.” 371 So.2d at 427.

Because junior-college instructors were covered by another state statute at the time the FDA was passed, it can be assumed that the Legislature, in defining the term “employees” in § 36-26-100, intended to exclude those instructors from the coverage of the FDA. Cf. Stephenson v. Lawrence County Bd. of Educ., supra, 782 So.2d at 199 (holding that, because the enactment of a statute relating to the removal of a custodian for school funds (“CSF”) significantly predated the effective date of the FDA, and the position of CSF was clearly covered by a State statute at the time the FDA was passed, the Legislature intended to exclude CSF’s from the coverage of the FDA).

To summarize, we conclude that the title of the FDA, the definition of who is included within its coverage, the settled construction of three courts that junior-college teachers are “otherwise covered” by some “other state statute,” the legislative history of the FDA and the timing of its passage after the ATSJCAA, and relevant principles of statutory construction, all dictate the conclusion that the FDA does not apply to McLeod or to other instructors at the state’s junior colleges.

What Employees Are Covered by the ATSJCCA?

Instructional personnel at the state’s junior colleges and trade schools are covered by the ATSJCAA. Section 16-60-111.7, Ala.Code 1975, provides:

“The president of each junior college and trade school shall appoint the faculty and staff of each junior college and trade school according to qualifications prescribed by the board [of education] and such other regulations which may be adopted by the board in accordance with Section 16-60-111.4.”

Section 16-60-111.4 makes it clear that the requirements for faculty tenure are determined pursuant to the ATSJCAA. That section provides:

“The State Board of Education, upon recommendation of the chancellor, shall be authorized to:
“(5) Prescribe qualifications for faculty and establish a salary schedule and tenure requirements for faculty at each junior college and trade school.”

(Emphasis added.) Section 16-60-111.5(2) states that the chancellor shall “interpret the rules and regulations of the board concerning the junior colleges and trade schools.”

McLeod’s Employment History at the College

From March 1984 through November 1994, McLeod was employed as an adjunct instructor on a quarter-by-quarter, as-needed basis, for a total of 32 academic quarters. For 26 of those quarters, he was employed as a “part-time” faculty member and was paid ón a local part-time salary schedule. For six quarters, he was employed as a “full-time temporary” faculty member and was paid on the State “D” salary schedule. For each period of employment, whether full-time or part-time, McLeod had an employment contract that specified a starting date and an ending date and that was subject to the following pertinent “Terms and Conditions”:

“6. It is understood that only full-time [faculty] members with continuing service status have the expectancy of continued employment beyond the contract period. If continuing service status . has not been achieved, then this contract shall not be construed as binding on either party beyond its specified dates, and there is no expectancy, expressed or implied, of continued employment beyond the contract period.
“10. Part-time faculty are temporary. Part-time positions are non-tenured and part-time experience does not apply toward tenure.
“11. No guarantee of employment for ' part-time faculty is expressed or implied beyond the contract period.”

The following chart sets out what the parties agree represents McLeod’s employment history at the college:

In its reversal of our earlier decision in this case, the Alabama Supreme Court remanded for further proceedings in the circuit court, noting that it had “made no conclusions as to the validity of [McLeod’s]’s factual claims.” Ex parte McLeod, 718 So.2d at 687 n. 3 (Ala.1997). The supreme court further stated:

“At oral argument, the parties disagreed as to the exact number of credit hours [McLeod] had taught during certain quarters of different school years. The circuit court is the proper court to first make the necessary factual findings.”

Id. At no time during the lengthy proceedings in this case have the parties disagreed about the “exact number of credit hours [McLeod] ... taught during certain quarters of different school years.” They agree upon the dates of his employment, the number of credit hours he taught each quarter, and the type of contract he signed. They do disagree, however, about the legal significance of his employment history.

Whether they rely on the FDA or on the ATSJCAA, the parties agree on one thing: that in order to achieve nonprobationary status, or “tenure,” McLeod had to be a full-time faculty member for three years. They disagree, however, about what constitutes “full-time” employment and about how the three-year period is to be measured.

When Is a Junior-College Instructor a “Full-Time” Faculty Member?

The college argues that full-time employment is determined by reference to § 16-60-111.4(5) and Chancellor Gainous’s interpretation, pursuant to § 16-60-111.5(2), of the Board of Education’s rules and regulations concerning junior colleges and trade schools, specifically Board Policy Number 608.01 and Wallace State Policy Number 318.02. Board Policy Number 608.01 states:

“[A] normal full-time instructor load in a state junior college (or junior college division of a state community college) shall be a minimum of 15 hours and a maximum of 21 hours per quarter, or the equivalent, as determined by the president.... [A] full-time instructor’s normal working week shall be a minimum of thirty-five hours, exclusive of any regularly scheduled breaks, and the work schedule of each instructor shall be approved by the president.”

The Board of Education’s “Guidelines for Policy Number 608.01” state:

“Any faculty member employed by an institution of The Alabama College System shall be considered full-time teaching faculty, for salary purposes, once the threshold of 15 credit hours of teaching class load, or the equivalent, per term has been achieved, so long as the faculty member works a minimum of 35 hours •per week.”

(Emphasis in original.) Wallace State Policy Number 318.02 states:

“A full-time instructor’s normal work week is a minimum of thirty-five hours exclusive of any regularly scheduled breaks, and the work schedule of each instructor is approved by the President. This does not mean that every faculty member is on duty seven hours a day, but faculty members must have a regular schedule of instruction, student coun-selling and preparation.”

In an affidavit stipulated to be admissible in this case, Chancellor Fred Gainous stated that, pursuant to the authority given him by § 16-60-111.4(5) and § 16-60-111.5(2), he made the following interpretation of the requirements for tenure:

“I interpret the three-year probationary period required for tenure as a full-time community college instructor to be three consecutive academic years (September 1-August 81) in which the respective instructor works full-time (teaches at least 15 credit hours per quarter and works a total of 35 clock hours during each week of the respective quarter) for at least three academic quarters per academic year.”

Based on the foregoing policies and the chancellor’s interpretation, the college argues that McLeod did not achieve tenure because he had only 6 quarters of “full-time temporary” employment in which he taught at least 15 credit hours per quarter and was required to be on duty at least 35 clock-hours per week. The college points out that 6 quarters of full-time employment does not amount to 3 years under any system of reckoning, regardless of whether the 3-year period is consecutive or nonconsecutive. The college contends that, for the 9 quarters in which McLeod taught 15 credit hours but was designated “part-time,” McLeod cannot be considered “full-time” because he was not required either to be on duty for 35 clock-hours each week or to have his work schedule approved by the president of the college.

The record fully supports the contention that, when McLeod was designated “part-time,” he did not have required duties amounting to 35 hours per week and he neither submitted his work schedule nor had it approved by the president. McLeod presented no evidence to the contrary. The evidence was undisputed that, as a part-time employee, McLeod was not required to perform any of the following duties that were expected of full-time faculty: assisting with registration, keeping office hours, serving on faculty committees, sponsoring student organizations, or attending graduation. In fact, the academic dean testified that as a part-time instructor McLeod was required merely “to show up to teach his classes.” At trial, McLeod acknowledged that, because the class periods at the college are 50 minutes rather than a full hour, a 15 credit hour schedule actually required him to “teach his classes” for only 12 1/2 hours per week.

McLeod concedes that the 15-cred-it-hour-per-term requirement is the right criterion for determining full-time status, but he argues that the 35-clock-hour-per-week standard is not correct. Instead, he contends that full-time employment is determined by reference to the FDA, specifically that portion of § 36-26-100 which provides:

“Full-time employees include ... employees whose duties require 20 or more hours in each normal working week of the school term, employing board holidays excepted.”

McLeod argues that, pursuant to this quoted portion of the FDA, a junior-college instructor is “full-time” if he works 20 clock-hours per week. He insists that, for every quarter in which he taught 15 credit hours (and for which he signed a contract stating that his employment was part-time, nontenured and did not count toward tenure) he was actually working “full-time” because, he claims, his “duties require[d] 20 or more hours in each normal working week.” To that end, he testified at trial that, in addition to the actual time he spent teaching in the classroom each week, he also spent time each week on the following activities: devising a syllabus, reviewing the textbook, planning his lectures, preparing, grading, and making up tests, talking with students about academic and personal problems, reading and watching plays on television (activities that, he testified, were incident to his being a theater instructor); and he argued that all of those activities totalled at least 20 hours per week. McLeod, therefore, claims that he became tenured when he had taught 15 or more credit-hours in each of 9 quarters — i.e., at the end of the spring quarter 1992.

The most obvious flaw in McLeod’s argument is that, for every 15-crediL-hour quarter he claims was “full-time” and counted toward tenure, he signed a contract stating that his employment was part-time, was nontenured, and did not count toward tenure. McLeod does not argue that he has achieved “de facto tenure.” De facto tenure exists when a faculty member, although not formally tenured, is able to show through practice or the circumstances of his service that he “has [a] ... legitimate claim of entitlement to job tenure.” Perry v. Sindermann, 408 U.S. 593, 602, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). McLeod also does not argue that his written contract has been modified, for example, by an oral representation, see, e.g., Talley v. Flathead Valley Cmty. College, 259 Mont. 479, 857 P.2d 701 (1993) (holding that a written contract stating that a community-college instructor had no right to tenure controlled over alleged oral manifestations of continuing employment), or by the incorporation into his contract of a provision in a faculty handbook, cf. Hill v. Talladega College, 502 So.2d 735 (Ala.1987) (holding that a college teacher had not achieved de facto tenure by being employed for 10 years, even if a standard of the American Association of University Professors providing that the period of probationary employment should not exceed 7 years was incorporated into her contract). Because McLeod’s part-time contracts were clear and unambiguous and provided him with no expectation that performance thereunder would count toward tenure, we will not now invalidate their provisions. See Hill v. Talladega College, supra, 502 So.2d at 738 (stating that a teacher serving under a term contract “generally has no legally enforceable entitlement to continued employment beyond the contract’s stated term”).

As we have previously explained, whether McLeod achieved tenure should have been determined by reference to the ATS-JCAA, rather than the FDA. We, therefore, hold that the college’s reliance on § 16-60-111.4(5), as well as Chancellor Gainous’s interpretation of Board Policy Number 608.01 and Wallace State Policy Number 318.02 (all requiring 35 clock-hours per week for full-time faculty) was correct. Nevertheless, assuming, for the sake of McLeod’s argument, that the determination of full-time status is dependent upon the FDA’s 20-hour-per-week requirement, we conclude that McLeod’s assessment of what hours and activities can be counted toward the 20-hour minimum requirement is erroneous as a matter of law.

Even under the FDA, an employee can be considered “full time” only if his “duties require 20 or more hours in each normal working week.” See § 36-26-100 (emphasis added). Although the idea that an employee’s “required duties” are defined by the employer — and not by the employee — is so well accepted as to need no citation to authority, we note that under the FDA the 20-hour-per-week standard means “regularly scheduled working hours,” see Carter v. Baldwin County Bd. of Educ., 532 So.2d 1017, 1018 (Ala.Civ.App.1988); Ex parte Green, 689 So.2d 838, 839 (Ala.1996), and “regularly scheduled working hours,” are the hours set by the employer, see Ledbetter v. Jackson County Bd. of Educ., 508 So.2d 244 (Ala.1987). As the undisputed evidence indicated, for the nine quarters in which McLeod taught 15 credit horns but was designated as “part-time,” the college did not “require” McLeod to perform any duty other than “to show up to teach his classes,” and McLeod concedes that he did not spend 20 hours per week on that duty.

If we accepted McLeod’s argument that a teacher can define for himself what hours should be counted toward the requirement of full-time employment, and thereby determine for himself when he has achieved tenure, we doubt there would be many part-time teachers in Alabama. We also doubt that Alabama’s junior-college system could remain financially solvent. Teachers are members of a learned profession. To their care and expertise our society entrusts the education of the young. They are entitled to great respect. Historically, they have neither expected, nor have they have been required, to punch a time clock. Their compensation is, more often than not, not commensurate with the out-of-class hours they dedicate to their duties. To quote the Supreme Court of Pennsylvania:

“The plaintiff wishes all the perquisites, honors and attention that go with a [tenured teacher’s] position, but he wants to observe a time-clock schedule and to be [credited] for every fragmentary hour he applies to his responsibilities after the blackboard dust of the day has settled. That is not only not fitting from a professional point of view; it is not in accordance with the law.”

Taggart v. Board of Directors of Canon-McMillan Joint School Sys., 409 Pa. 33, 39-40, 185 A.2d 332, 336 (1962).

On remand after the supreme court’s reversal, the circuit court determined that “McLeod’s duties required 20 or more hours in each normal working week of the school term, ... that Mr. McLeod performed the 20 or more hours in each normal working week of the school term, and ... that Mr. McLeod worked and was employed for sufficient time to obtain tenure.” The circuit court ordered the college to pay McLeod the salary he would have earned as a full-time instructor, retroactive to the fall quarter 1994; to credit him with the sick leave and annual leave he would have accumulated since the fall quarter 1994; and to adjust McLeod’s retirement benefits accordingly. The court also ordered the college to offer McLeod a contract as a full-time instructor and to pay him as though he had been a full-time instructor since the fall quarter 1994.

We hold that the circuit court erred in applying the law to the facts when it determined that McLeod “was employed for sufficient time to obtain tenure,” and when it awarded him backpay and benefits. Because we conclude that McLeod had only six quarters of full-time employment, we need not reach the issue presented by Justice Almon’s special concurrence in Ex parte McLeod, 718 So.2d at 689-90— whether the three-year probationary period for junior-college instructors must be consecutive or whether it is subject to the holding in Ex parte Clayton, 552 So.2d 152 (Ala.1989).

Conclusion

The judgment of the circuit court is reversed and the cause is remanded with instructions for the trial court to enter a judgment for Dr. Young and the college.

REVERSED AND REMANDED.

THOMPSON, J., concurs.

ROBERTSON, P.J., and YATES and MONROE, JJ., concur in the result.

YATES, Judge,

concurring in the result.

I disagree with the main opinion’s conclusion that the Alabama Trade School and Junior College Authority Act, § 16-60-80 et seq., Ala.Code 1975 (“the ATSJCAA”), applies to instructors, such as McLeod, at the state’s two-year colleges. Rather, I believe those instructors are governed by the Fair Dismissal Act, § 36-26-100 et seq., Ala.Code 1975 (“the FDA”).

The relevant section of the FDA is § 36-26-100. That section is the first section appearing in Article 4 of Chapter 26. That article is entitled: “Dismissal Procedures For Nonteacher, Nonelassified, etc., Employees in Certain School Systems, Institutions, etc.” Section 36-26-100 reads:

“The term ‘employees, as used in this article, is deemed to mean and include all persons employed by county and city boards of education, two-year educational institutions under the control and auspices of the state board of education, ... who are so employed as bus drivers, lunchroom or cafeteria workers, maids and janitors, custodians, maintenance personnel, secretaries and clerical assistants supervisors [sic] and all other persons not otherwise certified by the state board of education. Only full-time employees who are not otherwise covered by the state merit system, the teacher tenure law, or other state statute at the time this article is adopted are intended to be covered by this article. Full-time employees include (a) adult bus drivers and (b) other employees whose duties require 20 or more hours in each normal working week of the school term, employing board holidays excepted. Substitute teachers and substitute employees are excluded from the article.”

(Emphasis added.) The fundamental rule of statutory construction is to ascertain and give effect to the Legislature’s intent in enacting the statute. Norfolk Southern Ry. v. Johnson, 740 So.2d 392 (Ala.1999). If possible, the Legislature’s intent should be gathered from the plain language of the statute. Id. Our supreme court has previously noted that the FDA “is not a model of legislative clarity.” Bolton v. Board of School Comm’rs of Mobile County, 514 So.2d 820, 824 (Ala.1987).

In Ex parte McLeod, 718 So.2d 682 (Ala.1997), Justice Butts concluded that instructors such as McLeod are covered by the FDA, and he based that conclusion on several reasons. Initially, he determined that the defendant’s argument that the FDA does not extend to junior-college instructors because the heading of § 36-26-100 specifically refers to “Nonteachers,” was defective, because “ ‘the descriptive headings or catchlines immediately preceding or within the text of the individual sections of the Code ... do not constitute part of the law, and shall in no manner limit or expand the construction of any such section.’ ” Ex parte McLeod, 718 So.2d at 686 n. 2, quoting § 1-1-14, Ala. Code 1975. Justice Butts further noted that the reference to “substitute teachers” in the last sentence of § 36-26-100 conflicts with the defendant’s interpretation of the title of the Act. Justice Butts stated: “If all teachers are excluded from the FDA, there would have been no need for the legislature to expressly exclude substitute teachers. We believe that the express exclusion of substitute teachers by the legislature implies the inclusion of other teachers.” Id., at 686-87.

Justice Butts next examined the full title of the FDA as it was adopted by the legislature. The title of Act No. 83-644, Ala. Acts 1983, reads:

“AN ACT
“To provide for fair dismissal procedures for non-teachers and non-cerbified or classified employees in the public school systems, two-year institutions under control of the State Board of Education, ... who are not otherwise covered by the State’s Merit System, the Teacher Tenure Law, or other state statutes at the time this Act is adopted; to provide procedural and substantive due process of law for dismissal for just cause before the employing board after the employee completes the probationary period of employment and thereafter gains permanent status; to provide for an employee review panel to hear contested termination of employment and transfer; and to provide for review of the decisions of the employing board.”

(Emphasis added.) In interpreting that title, as well as the language in § 36-26-100, Justice Butts stated:

“The language excluding those employees covered by the state merit system, the teacher tenure law, or another state statute is repeated in § 36-26-100. Giving literal meaning to the legislature’s plain language used in the full title and in § 36-26-100, we believe that instructors such as McLeod ... at two-year colleges fall within coverage of the Act. They are not certified by the State Board of Education; thus, they are non-certified employees of a two-year institution under the control of the State Board of Education. Further, they are not covered by either the State’s merit system or the teacher tenure law. Finally, although the defendants argue that [McLeod was] covered by an ‘other state statute’ at the time the FDA was passed, specifically § 16-60-111.4, that statute did not itself create due process protections for employees such as [McLeod]. Thus, the full title of the Fair Dismissal Act supports [McLeod’s] position.”

Ex parte McLeod, 718 So.2d at 687.

Finally, Justice Butts concluded that the rule of ejusdem generis has no application to the interpretation of the term “employees” in § 36-26-100. By the rule of ejus-dem generis, “general words, following the enumeration of particular classes of persons or things, are construed to apply only to persons or things of the same general nature or class as those specifically enumerated.” Lambert v. Wilcox County Comm’n, 623 So.2d 727, 731 (Ala.1993). However, the rule does not apply if an examination of the entire text makes “it apparent that the Legislature intended the general words to go beyond the class specifically designated.” Moore v. City of Mobile, 248 Ala. 436, 440, 28 So.2d 203, 207 (1946). Justice Butts concluded that a review of the “text of § 36-26-100 and the full title of the FDA reveal a legislative intent to include some teachers under the FDA,” and, therefore, that the rule of ejusdem generis has no application. Ex parte McLeod, 718 So.2d at 687.

I recognize that we are not bound by Justice Butts’s opinion in Ex parte McLeod; however, after reviewing that opinion, I find it to be well reasoned and dispositive of the issue presented in this case. Therefore, I would adopt Justice Butts’s opinion and hold that the FDA applies to junior-college instructors such as McLeod.

I do agree, however, with Judge Craw-ley’s conclusion that McLeod did not obtain tenure under the FDA. Therefore, I concur in the judgment reversing the trial court’s judgment holding that McLeod had obtained tenure under the provisions of the FDA.

ROBERTSON, P.J., and MONROE, J., concur.

      . In its first opinion, this court dealt with the appeals of two instructors at Wallace State Community College, John McLeod and Barbara Dinkins, who had both sued the college and its then president, Dr. Larry Beaty. Ms. Dinkins settled her claim with the college and is now deceased. The college has a new president, Dr. Linda Young, who has been substituted for former President Beaty.

      . The supreme court may have confused — as this court did in McLeod v. Beaty, 718 So.2d at 676—McLeod's argument that he was "full time” during the 15 academic quarters during which he taught 15 or more credit hours, with the facts establishing, without dispute, that McLeod signed a contract and was designated "full-time temporary” for only 6 academic terms.


source: Caselaw Access Project

author: LYONS, Justice. HARWOOD, Justice LYONS, Justice. MOORE, Chief Justice

license: Public Domain

text:
    Ex parte John McLEOD. (In re Dr. Linda Young, in her official capacity as president of George C. Wallace State Community College; and George C. Wallace State Community College v. John McLeod).
    1000842.
    Supreme Court of Alabama.
    June 22, 2001.
    Dissenting Opinion on Denial of Rehearing Sept. 14, 2001.

      Gregory B. Stein of Stein & Brewster, Mobile; and Thomas K. Brantley of Parkman, Brantley, LaMere & Atwell, Dothan, for petitioner.
    Edward M. George and Jeffery A. Fosh-ee of Foshee & George, L.L.C., Montgomery; and R. Rainer Cotter III of Cassady, Fuller & Marsh, Enterprise, for respondents.
    Robert D. Seagall and Shannon L. Holli-day of Copeland, Franco, Screws & Gill, P.A., Montgomery; Winn Faulk of Faulk & Reed, L.L.P., Montgomery; and William J. Baxley and Joel E. Dillard of Baxley, Dillard, Dauphin & McKnight, Birmingham, for amicus curiae Alabama Education Association.
   LYONS, Justice.

John McLeod sued George C. Wallace State Community College and Dr. Linda Young, in her official capacity as its president (hereinafter together referred to as “the college”), seeking backpay and benefits as a full-time tenured teacher. The battle is over how time of service is computed to establish tenure.

I. Factual Background

McLeod began his employment with the college as a speech instructor, in March 1984. His annual teaching contracts ran through 1994. Most of these contracts were “part-time” contracts with “full-time temporary” contracts applicable only for one quarter in 1991, one quarter in 1992, two quarters in 1993, and two quarters in 1994. The college reduced his hours of employment for the fall quarter 1994, refused to provide him with a “full-time” contract, and, instead, offered him a contract under which he would teach fewer than 15 quarter hours.

When McLeod was designated “part-time,” he was not required to perform any of the duties that were expected of full-time faculty members, such as assisting with registration, keeping office hours, serving on faculty committees, sponsoring student organizations, and attending graduation ceremonies. As a part-time instructor, McLeod was required only to show up and teach his classes. Because class periods at the college are 50 minutes long rather than a full hour, a 15-credit-hour schedule actually required him to teach for only 12/& hours per week.

For every 15-credit-hour quarter for which McLeod claims credit toward tenure, he was employed under a contract, which he had signed, providing that his employment was part-time, was nontenured, and did not count toward tenure.

Section 36-26-100, Ala.Code 1975, a part of the Fair Dismissal Act (hereinafter the “FDA”) provides that “[f]ull time employees include ... employees whose duties require 20 or more hours in each normal working week of the school term, employing board holidays excepted.” McLeod insists that for every quarter in which he taught 15 credit hours, he was actually working “full-time,” as that term is used in the FDA, because, he argues, his “duties require 20 or more hours in each normal working week of the school term.” See § 36-26-100. He supports this reasoning by stating that, in addition to the actual time he spent teaching in the classroom each week, he also spent time during each week outside of the classroom preparing, planning, reviewing, grading papers, talking with students, reading, and watching plays on television. He then concludes that those activities consumed at least 20 hours per week.

II. The Prior Appeal

In an earlier appeal in this action, the Court of Civil Appeals held that McLeod was not subject to the FDA. See McLeod v. Beaty, 718 So.2d 673 (Ala.Civ.App.1996). This Court reversed, without a majority opinion. See Ex parte McLeod, 718 So.2d 682 (Ala.1997) (McLeod I) (in the lead opinion, Justice Butts, joined only by Justice Shores, concluded that instructors at two-year colleges fall within the coverage of the FDA).

Justice Almon concurred specially, with an opinion joined only by Justice Maddox. Justice Almon concluded that the Alabama Trade School and Junior College Authority Act (hereinafter the “ATSJCAA”), § 16-60-80 et seq., and not the FDA, applied to McLeod. Justice Almon then wrote that the chancellor’s regulation requiring consecutive years was invalid. However, Justice Almon concurred to remand, because of his view that the provisions of the FDA and the ATSJCAA must be construed identically so as to preclude any requirement that years of service be consecutive when computing tenure. The Court had previously embraced a rule rejecting the requirement of consecutive service, in Ex parte Clayton, 552 So.2d 152, 154-155 (Ala.1989) (no requirement of consecutive service under virtually identical language in the FDA).

Justice See concurred in the result in McLeod I, without writing. Chief Justice Hooper and Justice Kennedy dissented, also without writing. Justice Cook re-cused himself, noting the impact the opinion could have on his wife, an employee of the two-year-college system. With only seven Justices sitting, the votes of Justices Maddox, Almon, Shores, Butts, and See combined to remand for further proceedings in the trial court, with Justice Butts noting, “[W]e have made no conclusions as to the validity of [McLeod’s] factual claims.” 718 So.2d at 687 n. 3.

III. Subsequent Proceedings

A. In the Trial Court

On remand, the trial court applied the FDA and found that McLeod’s duties required that he work 20 or more hours in each normal working week of the school term, and it held that, pursuant to the FDA, he was entitled to tenure. The trial court ordered the college to pay backpay and offer McLeod a contract as a full-time instructor at a pay scale as if he had been a full-time instructor since the fall quarter 1994.

B. Before the Court of Civil Appeals

The Court of Civil Appeals reversed, with a lead opinion authored by Judge Crawley in which he expressed the opinion that the lead opinion in McLeod I had no precedential value and that the FDA did not apply to McLeod. However, he further concluded that, even if the FDA did apply to McLeod, the evidence required a finding that McLeod had not worked the necessary hours for him to acquire tenured status under § 36-26-100 of the FDA (“Full time employees include ... employees whose duties require 20 or more hours in each normal working week of the school term, employing board holidays excepted.”). Only Judge Thompson joined Judge Crawley’s opinion. Young v. McLeod, 841 So.2d 245 (Ala.Civ.App.2001).

Presiding Judge Robertson and Judges Yates and Monroe concurred in the result — a holding that McLeod had not acquired tenure. They expressed the opinion that the FDA did apply; however, they agreed with Judge Crawley that, even under an application of the FDA, the evidence would require a finding that McLeod had not worked the hours necessary for him to acquire tenured status.

Thus, although the five Judges on the Court of Civil Appeals could not agree on whether the FDA applied, they all agreed that McLeod had not satisfied the requirements of § 36-26-100. In one portion of his opinion, Judge Crawley, assuming for the sake of argument that the FDA applied, reasoned that under the FDA the employer, not the employee, established the requirement for the number of hours to be worked. He then defined the 20-hour-per-week standard as “regularly scheduled working hours,” relying upon Carter v. Baldwin County Bd. of Educ., 532 So.2d 1017, 1018 (Ala.Civ.App.1988), and Ex parte Green, 689 So.2d 838, 839 (Ala.1996). Judge Crawley also concluded that “regularly scheduled working hours” are the hours set by the employer, citing Ledbetter v. Jackson County Bd. of Educ., 508 So.2d 244 (Ala.1987).

As previously noted, during the quarters when McLeod was claiming full-time status, the college required only that he show up and teach his classes, and it is undisputed that McLeod did not spend 20 hours per week discharging that responsibility. Judge Crawley observed that if the court accepted McLeod’s argument that a teacher can define for himself what hours should be counted toward the status of full-time employment and thereby determine when he has achieved tenure, then there would not be many part-time teachers in Alabama. The Court of Civil Appeals unanimously concluded that, even if the FDA applied, McLeod had had only six quarters of full-time employment; this conclusion made it unnecessary to deal with Justice Almon’s concern as to whether the three-year probationary period must be served by teaching for three consecutive years. Because the Court of Civil Appeals unanimously rejected the proposition that the FDA applied to out-of-class activities, it did not address the trial court’s findings as to the reasonableness of McLeod’s out-of-class activities.

IV. The Issues Within this Court’s Jurisdiction

Only McLeod has petitioned this Court for certiorari review. McLeod asserts that the Court of Civil Appeals has incorrectly decided a question of first impression. See Rule 39(a)(1)(C), Ala. R.App. P. McLeod describes the question as dealing with the manner of computation of full-time or part-time status under the FDA.

In its brief in opposition to McLeod’s petition, the college argues that, “with one possible exception,” the petition is due to be denied: “The Respondents would not object to the review of [this issue] within the context of deciding whether or not the concurring Judges erred when they found that the Fair Dismissal Act applies to community college instructors.” Because three of the five Judges on the Court of Civil Appeals agreed that the FDA applied and because the college has not challenged this determination by cross-petition, the applicability of the FDA has become the law of this case.

V. The Merits — The Effect of § 36-26-100

Under the FDA, McLeod must have three years of full-time employment to be entitled to tenure. See § 36-26-101, Ala. Code 1976. The question whether the three years must be consecutive, however, was not dealt with by the Court of Civil Appeals and, therefore, is not before us. The operative facts and controlling law, recognizing the FDA as the law of the case for purposes of this proceeding, require that we compute McLeod’s time spent working at the college in light of § 36-26-100.

McLeod claims that he became tenured either when he had taught 15 or more credit hours in each of nine quarters or at the end of the spring quarter of 1992. He bases his reasoning on the wording of § 36-26-100 (“Full time employees include ... employees whose duties require 20 or more hours in each normal working week of the school term, employing board holidays excepted.”). As noted above, he says that his efforts necessary to teach 15 credit hours required 20 or more hours of work.

Section 36-26-100 states that full-time employment occurs when an employee’s duties require 20 or more hours of work per week. McLeod points to the trial court’s determination, based on evidence presented ore tenus, that McLeod had worked 20 or more hours per week. McLeod argues that this case is distinguishable from Carter, Green, and Ledbetter, all cited supra—cases Judge Crawley cited for the proposition that the employer defines the regularly scheduled working hours; McLeod says those cases contain incidental language not applicable to the question here presented. We agree; None of those cases addresses the issue of employment in a setting where the record reflects that activities beyond certain stated hours of service are essential to the discharge of the duties required of the employee.

The Code Commissioner’s heading for the article in which § 36-26-100 is found refers to nonteacher employees, leading one to think only of janitors and bus drivers, whose duties do not require preparation and homework and whose duties would therefore be restricted to actual hours at the job site. This analysis leads one to conclude that § 36-26-100 must be read as dealing only with circumstances where the employer, and not the employee, sets the hours of service. But, we cannot endorse this analysis, for several reasons. Section 1-1-14, Ala.Code 1975, condemns the use of descriptive headings to construe statutes. Also, that analysis overlooks other language in § 36-26-100 suggesting that teachers could be subject to its provisions, as Justices Butts and Shores concluded in McLeod I and as three Judges of the Court of Civil Appeals have more recently concluded. Finally, the applicability of the FDA is the law of this case.

What is the proper application of the phrase “employees whose duties require 20 or more hours in each normal working week”? If McLeod’s “duties” were limited only to the obligation to show up for class and to teach for the specified number of hours, then the college prevails, because the college required only 12)6 hours of instruction by McLeod per week. If his “duties” included not only the obligation to show up and teach for 12fé hours but also the obligation to prepare for class and to grade papers later, then McLeod prevails — if he can establish that the out-of-class effort required to reach 20 hours per week is reasonable. The Court of Civil Appeals did not address the trial court’s finding that McLeod’s out-of-class activities were reasonable; therefore, that finding is not before us.

Courts must interpret the plain language in a statute to mean exactly what it says and should give words their natural, plain, ordinary, and commonly understood meanings. McCullar v. Universal Underwriters Life Ins. Co., 687 So.2d 156, 163 (Ala.1996). The plain language of § 36-26-100 compels the conclusion that all of an employee’s time spent on his duties must count toward the 20-hour requirement, because it offends common sense to suggest that teaching requires only classroom performance. Any other holding would simply rewrite the statute. If we held otherwise, a college could thwart the clear intention of the Legislature by consistently assigning its teachers 19.9 hours or some lesser number of hours of instruction per week. Moreover, if this case involved an attempt to terminate an instructor for cause, we would reasonably expect that a college would challenge the adequacy of the performance of a teacher who appeared for class unprepared and never graded a paper or who made students simply sit idle in class during time allotted for instruction, while the instructor graded papers.

We cannot recognize the in ter-rorem argument that this application of the FDA would, as to all of the colleges under its governance, strip the State Board of Education of any authority to establish work hours, designate duties, set salaries, or determine what constitutes full-time or part-time status. First, and foremost, an argument concerning the consequences of a particular construction of a statute are relevant only when the statute is ambiguous. Bleier v. Wellington Sears Co., 757 So.2d 1163, 1168 (Ala.2000). Here, the phrase “duties require,” as it appears in § 36-26-100, is straightforward and requires no choice between alternatives. Second, if problems arise that cannot be solved by regulations creating objective standards for determining the number of hours an instructor’s duties require, then the Legislature, not a court, is the proper body to change the statute.

VI. Conclusion

We conclude that the phrase “duties require,” as it is used in § 36-26-100, unambiguously embraces not only the obligation to show up and instruct for 12lé hours but also the obligation to take steps reasonably necessary for proper instruction, both before and after the time strictly allotted to classroom instruction itself.

We reverse the judgment of the Court of Civil Appeals and remand this case for that court to consider the issues it has not yet addressed but that need to be addressed because of our holding.

REVERSED AND REMANDED.

BROWN, JOHNSTONE, and WOODALL, JJ., concur.

MOORE, C.J., and HARWOOD and STUART, JJ., dissent.

HOUSTON and SEE, JJ., recuse themselves.

HARWOOD, Justice

(dissenting).

I respectfully dissent.

If we were writing on a “clean slate,” I would align myself with the several Justices and Judges who, in connection with the three appellate decisions previously issued in this case, have concluded that the Fair Dismissal Act does not apply to Mr. McLeod. However, I agree with the conclusion of today’s main opinion that “[b]e-cause three of the five Judges on the Court of Civil Appeals agreed that the FDA applied and because the college has not challenged this determination by cross-petition, the applicability of the FDA has become the law of this case.” Nonetheless, I agree with the conclusion reached by all five members of the Court of Civil Appeals that, even if the FDA does apply to McLeod, he did not work the number of hours required to acquire tenured status under § 36-26-100, Ala.Code 1975, a portion of the FDA.

MOORE, C.J., and STUART, J., concur.

On Application for Rehearing

LYONS, Justice.

APPLICATION OVERRULED.

BROWN, JOHNSTONE, and WOODALL, JJ., concur.

MOORE, C.J., and HARWOOD and STUART, JJ., dissent.

HOUSTON and SEE, JJ., recuse themselves.

MOORE, Chief Justice

(dissenting).

I dissent from the denial of rehearing. I do not believe that under the Fair Dismissal Act (hereinafter the “FDA”) John McLeod had acquired tenured, full-time status. The provisions of the FDA apply only to full-time employees. The FDA defines full-time employees as “employees whose duties require 20 or more hours in each normal working week of the school term, employing board holidays excepted.” Ala.Code 1975 § 36-26-100. This Court’s opinion on original submission, Ex parte McLeod, 841 So.2d 260 (Ala.2001), allows an instructor to contract with a college to instruct for 15 credit hours as a part-time instructor and, upon a showing that his or her “duties require” out-of-class preparation of at least 5 hours, to then claim full-time status under the FDA.

First, I reiterate what the Court of Civil Appeals aptly noted as the “most obvious flaw” in McLeod’s argument that he had attained full-time status under the FDA: “for every 15-credit-hour quarter he claims was ‘full-time’ and counted toward tenure, he signed a contract stating that his employment was part-time, was nontenured, and did not count toward tenure.” Young v. McLeod, 841 So.2d 245, 256 (Ala.Civ.App.2001). Furthermore, regardless of how his employment contract reads, McLeod conceded that his actual work toward the “duties require[d]” of his position did not meet the 20-hour mark.

“As the undisputed evidence indicated, for the nine quarters in which McLeod taught 15 credit hours but was designated as ‘part-time,’ the college did not ‘require’ McLeod to perform any duty other than ‘to show up to teach his classes,’ and McLeod concedes that he did not spend 20 hours per week on that duty.”

Id. at 257 (emphasis added). Thus, neither the terms of McLeod’s employment contract nor the actual duties he performed support the conclusion that McLeod is a “full-time” employee under the FDA.

The ramifications of this Court’s opinion are considerable. What if a part-time instructor’s “duties require” no out-of-class preparation? What if the time necessary for instruction plus preparation does not reach the 20 hour threshold? Clearly, then, such an instructor’s “duties require” less time than did John McLeod’s, and that instructor would not be accorded full-time status under the FDA.

This Court’s opinion will require a case-by-case determination of what an instructor’s “duties require.” John McLeod taught 15 credit hours of theater, which he claimed required at least 20 hours of work per week. Young v. McLeod, 841 So.2d at 256. What of the part-time English instructor who is already familiar with the subject matter and who, in preparing for class, does not find that his “duties require” that he plan, read, or “watchf] plays on television”? Ex parte McLeod, 841 So.2d at 260. Such an English instructor remains banished to “part-time” status until he can show an Alabama court that, despite what an employment contract may say, the “duties require” 20 or more hours of work.

The part-time/full-time distinction need not be limited to the subject matter taught; it can also effectively reward a lack of ability. Suppose an efficient instructor contracts with George C. Wallace State Community College to teach 15 credit hours. This efficient instructor adequately completes his out-of-class preparation in four or fewer hours per week. The Court’s opinion would deny that efficient instructor full-time status under the FDA, while a less efficient instructor, who requires out-of-class preparation time of five or more hours, is rewarded by being classified as a full-time employee.

Schools, once able to determine by contract how many hours their instructors worked, now find that a contractual limitation on an instructor’s working hours is meaningless. With the power to determine working hours (and their own employment status) in the hands of the instructors themselves, schools will be required to police the out-of-class work of all instructors to discourage the less than honest from “padding” hours.

I believe the majority’s decision in its opinion on original submission to change “15” into “20 or more” is contrary to Alabama law, to standards for statutory interpretation, to logic, and to basic mathematics. I would grant the application for rehearing in this case.

STUART, J., concurs.

      . Judge Crawley described McLeod’s signature on a contract expressly renouncing an entitlement to tenure as "the most obvious flaw in McLeod’s argument.” 841 So.2d at 256. Only Judge Thompson agreed with this portion of Judge Crawley’s opinion. We have not been asked to address whether the contract provision can displace the FDA.


author: CRAWLEY, Judge. MURDOCK, Judge,

text:
    Dr. Linda YOUNG, in her official capacity as president of George C. Wallace State Community College; and George C. Wallace State Community College v. John McLEOD.
    2990440.
    Court of Civil Appeals of Alabama.
    June 28, 2002.

      Edward M. George and Jeffery A. Fosh-ee of Foshee & George, L.L.C., Montgomery; and R. Ranier Cotter of Cassady, Fuller & Marsh, Enterprise, for appellants.
    Gregory B. Stein of Stein & Brewster, Mobile; and Thomas K. Brantley of Parkman, Brantley, LaMere & Atwell, Dothan, for appellee.
   On Remand from the Supreme Court and On Application for Rehearing

CRAWLEY, Judge.

The opinion of this court issued on April 12, 2002, is withdrawn, and the following is substituted therefor.

This is the third time the parties have been before this court. See McLeod v. Beaty, 718 So.2d 673 (Ala.Civ.App.1996) (“McLeod I”), reversed and remanded, 718 So.2d 682 (Ala.1997), and Young v. McLeod, 841 So.2d 245 (Ala.Civ.App.) (“McLeod II”), reversed, Ex parte McLeod, 841 So.2d 260 (Ala.2001).

‘ John McLeod, an adjunct instructor of speech and theater at George C. Wallace State Community College (“the college”), sued the college and its then president, Dr. Larry Beaty, seeking backpay and benefits as a full-time tenured instructor. At different times between 1984 and 1994, McLeod had been employed by the college as a “part-time” or “full-time temporary” faculty member. The following chart sets out what the parties agree represents McLeod’s employment history at the college:

McLeod argued that the Fair Dismissal Act, § 36-26-100 et seq., Ala.Code 1975 (“the FDA”), applied to him; that the FDA governed tenure requirements for junior-college instructors; and that under the FDA he had earned tenure.

In McLeod II, three members of this court determined that the FDA applies to nontenured junior college instructors such as McLeod. Two members of the court concluded that the FDA does not apply and that, instead, the Alabama Trade School and Junior College Authority Act, § 16-60-80 et seq., Ala.Code 1975 (“the ATSJCAA”), provides the tenure requirements for instructors like McLeod. Although this court was divided in McLeod II over whether the FDA or the ATS-JCAA applied to McLeod, all five members of the court agreed that McLeod had not attained tenure under the FDA.

McLeod appealed to the Alabama Supreme Court, which held that this court’s determination that the FDA applied to McLeod had become the law of the case because the college did not challenge that determination by cross-petition. The supreme court, however, reversed this court’s holding that McLeod had not obtained tenure under the FDA. The supreme court remanded the case for this court “to consider the issues it has not yet addressed but that need to be addressed because of [the reversal by the supreme court].” 841 So.2d at 266.

The following issues are not open to reexamination on remand from the Alabama Supreme Court; they were decided adversely to the college on a prior appeal or were not challenged in the supreme court by a cross-petition for a writ of certiorari. They are, therefore, the law of the case: (1) that McLeod’s claims against Dr. Young and the college are not barred by the sovereign immunity granted to the State by § 14 of the Alabama Constitution of 1901, see McLeod I, 718 So.2d at 684; (2) that the FDA applies to McLeod, see McLeod II, 841 So.2d at 248; (3) that the contract McLeod signed for the 9 academic quarters in which he taught 15 credit hours, which includes provisions designating his employment as “part-time” and “nontenured” and states that his employment “did not count toward tenure,” does not override the FDA, see Ex parte McLeod, 841 So.2d at 264 n. 1 (reversing McLeod II); and (4) that McLeod’s out-of-class activities in preparation for teaching his classes count toward the 20 or more hours per week of “required duties” that are necessary for McLeod to be deemed “full-time” and thereby eligible for tenure under the FDA, see McLeod II, 841 So.2d at 257.

The following issues must be determined on this remand: (1) whether the circuit court’s finding that “McLeod’s duties required 20 or more hours in each normal working week of the school term” is supported by the record; and (2) whether the circuit court’s conclusion that “Mr. McLeod worked and was employed for sufficient time to attain tenure” is correct.

Section 36-26-102, Ala.Code 1975, a part of the FDA, states that after an employee has completed his or her probationary period, the employee shall be deemed employed on a nonprobationary status and shall not be terminated except for certain enumerated reasons. Section 36-26-101 states that the probationary period for “employees as defined in Section 36-26-100” is “a period not to exceed three years from the date of his or her initial employment.” Section 36-26-100, defining “employees,” states, in pertinent part:

“The term ‘employees’ as used in this article, is deemed to mean and include all persons employed by ... two-year educational institutions .... Only full-time employees ... are intended to be covered by this article. Full-time employees include ... employees whose duties require 20 or more hours in each normal working week of the school term....”

On remand after the supreme court’s reversal of our judgment in McLeod I, the circuit court held a hearing on McLeod’s factual claims. McLeod testified that for the 9 academic quarters during which he was employed to teach 15 credit hours, he taught three 5-hour basic speech classes. McLeod acknowledged that, because the class periods at the college are 50 minutes long rather than a full hour, a 15-crediL-hour schedule required him to be in class only 12^ hours per week. He testified, however, that the 15-credit-hour schedule required him to expend 20 or more hours each week, including out-of-class preparation. McLeod said that, in addition to classroom time, he also spent time each week on the following activities: devising a syllabus; reviewing the textbook; preparing handouts; planning his lectures; preparing, grading, and administering tests and make-up tests; maintaining class rolls and records; and conferring with students.

Dr. Ralph Purvis, the chairman of the fine arts department at the college and McLeod’s supervisor, testified that, in his opinion, it would be impossible for any instructor to teach a 15-credit-hour schedule and spend less than 20 hours per week on his required duties. Purvis agreed with McLeod’s assessment of the out-of-class activities required for McLeod’s position and gave the following estimates of the time Purvis thought would be required to perform some of those duties:

Activity Time expended per week on activity
Devising a syllabus 1 hour
Planning lectures 1 hour
Preparing, grading, and administering tests and make-up tests 7 hours
Maintaining class rolls and records 1 hour
Conferring with students 1 hour

Purvis characterized his estimates as “conservative.” When he was asked whether McLeod “work[ed] 35 hours a week,” Pur-vis replied:

“A. Probably, maybe 30, I don’t know.
“Q. [By counsel for McLeod] Close to it?
“A. Probably.
“Q. Well, he would average 35 hours a week or more?
“A. I would say maybe 30 to 35.”

We have carefully read the testimony presented at the hearing, and we conclude that the trial court’s findings of fact are supported by the record.

“As we have countless times stated, where, as here, the trial court’s findings are based upon evidence heard ore ten-us, those findings are favored with a presumption of correctness and will not be disturbed on appeal if supported by evidence or any reasonable inference therefrom, unless plainly and palpably erroneous or manifestly unjust.”

Davis v. Owen, 461 So.2d 1300, 1302 (Ala.1984). See also Barnes v. Patrick Henry State Junior College, 515 So.2d 1257, 1258 (Ala.Civ.App.1987).

In Dennis v. Dobbs, 474 So.2d 77 (Ala.1985), our supreme court held that there was sufficient evidence to support the trial court’s finding that a student health nurse at Gadsden State Junior College was a “full-time” employee based on the following testimony by the nurse:

“[The nurse] testified she worked seven hours in her office on days that school was in session, with no break for lunch. The office hours for the school nurse are listed in the school catalog as 8:00 a.m. to 3:00 p.m., or seven hours. [The nurse’s] job description states that in addition to these office hours, she will be ‘on call in case of emergencies.’ [The nurse] testified she was often called back nights, weekends, and days between quarters by ‘dorm mothers’ and students. She further testified that she often stayed later than 3:00 p.m. to take care of sick or injured students and drive them to the doctor, if needed. [Her] job description also called for her to perform ‘other related duties assigned.’ [The nurse] testified she performed such diverse tasks as coordinating health fairs, making trips as the cheerleader sponsor, and running the hospitality room at the State Women’s Basketball Tournament. All of these activities were done after her posted office hours. [The nurse] only drew seventy percent of the salary for a full-time employee, however. [The nurse] testified she considered herself a full-time employee in every respect except the way her salary was calculated. [The president of the junior college] testified that [the nurse] received the same fringe benefits as a full-time employee, including sick leave, professional leave, personal leave, annual leave, insurance, and holidays. [The president’s] letter to [the nurse], in which he states the letter is written pursuant to Policy 614.011, also could lead to an inference that Gadsden State considered [the nurse] a full-time employee.
“Based on the evidence above, we cannot say that the trial court was plainly and palpably erroneous in finding that [the nurse] was a full-time employee..."

474 So.2d at 79-80. We conclude that the trial court’s finding that “McLeod’s duties required 20 or more hours in each normal working week” is supported by the record. Section 36-26-100 also states, however, that the required duties of a full-time employee must be performed “each normal working week of the school term.” (Emphasis added.) After remand from the supreme court, this court requested the parties to brief the following questions: (1) What is the meaning of “school term” as used in § 36-26-100? (2) For how many “school terms” has McLeod been employed full-time? (3) Does that number of “school terms” amount to three years within the meaning of § 36-26-101?

The parties agree that a “school term” at the college was, at the times relevant to this appeal, an academic quarter; that McLeod was employed for more than 9 quarters, during which he taught 15 or more credit hours; and that 9 quarters qualifies as “three years” within the meaning of § 36-26-101 and Ex parte Clayton, 552 So.2d 152, 154-55 (Ala.1989) (holding that, for purposes of the FDA, an employee’s three-year time of service need not be continuous or consecutive).

The college correctly points out that the employees in Clayton were nonteachers. It asserts that the holding in Clayton is, therefore, limited to nonteachers and that this court is, for the first time, squarely presented with the issue of whether the three-year probationary period in § 36-26-101 must, for teachers, be continuous or consecutive. If the three-year period must be continuous or consecutive, then McLeod has not attained tenure because he has only seven continuous or consecutive quarters of full-time employment. If, however, the three-year period need not be continuous or consecutive, then McLeod’s nine quarters of full-time employment qualify him for tenure. We conclude that the three-year probationary period need not, even for teachers, be continuous or consecutive. We reach that conclusion based on two grounds: (1) the principles of statutory construction outlined in Clayton itself and (2) the special concurrence of Justice Almon, joined by Justice Maddox, in McLeod I, 718 So.2d at 688-90.

In Clayton, the Alabama Supreme Court held that the Court of Civil Appeals had “read into” § 36-26-101 a requirement of consecutiveness that the Legislature had not intended.

“If the legislature had intended that the requisite term of probationary employment be consecutive or continuous, it would have so stated. There is no language within the text of the Fair Dismissal Act to support the construction requiring three consecutive years of probationary service from the date of the employee’s initial employment.”

552 So.2d at 154-55.

Justice Almon, concurring specially in an opinion joined by Justice Maddox on the appeal of our decision in McLeod I, stated that he did not believe that § 36-26-101 or any other part of the FDA governed the achievement of tenure for junior college instructors. Instead, he thought, tenure for instructors was determined by regulations promulgated pursuant to § 16-60-111.4(5), Aa.Code 1975, a part of the ATS-JCAA. Those regulations, he said, were found in § 3.A of the Revised Hearing Procedure. The pertinent regulation stated:

‘All employees as defined in subsection l.B of these regulations shall be deemed employed on a probationary status for a period of three years from the date of his or her initial employment.”

718 So.2d at 689. Justice Almon pointed out that “§ 3.A of the Revised Hearing Procedure ... track[ed] the language of § 36-26-101(a)” and its three-year-probationary-term provision should be construed in the same way as the Alabama Supreme Court had construed the virtually identical three-year-probationary-term provision of § 36-16-101. 718 So.2d at 689 (Almon, J., concurring specially). Justice Almon explained:

“The only difference in the language of these two provisions is that § 36-26-101(a) refers to ‘a period not to exceed three years,’ whereas § 3.A refers to ‘a period of three years’ from the date of initial employment. If anything, therefore, § 3.A contains less indication that consecutive years or continuous employment was intended.”

718 So.2d at 689 (Almon, J., concurring specially).

The trial court’s judgment that “Mr. McLeod worked and was employed for sufficient time to attain tenure” is due to be affirmed. The circuit court did not state in its findings or conclusions whether McLeod was to be tenured at 20 hours per week or at 35 hours per week, but we conclude that the record supports a determination only as to the lower figure. McLeod did not testify that he worked 35 hours per week, and Purvis, his supporting witness, testified somewhat equivocally, concluding that McLeod’s total was “maybe 30 to 35” hours per week.

OPINION OF APRIL 12, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.

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

MURDOCK, J., concurs in the result.

MURDOCK, Judge,

concurring in the result.

I concur in the result reached by the main opinion simply because, in my view, Ex parte Clayton, 552 So.2d 152 (Ala.1989), directly controls the outcome of this case. Neither Clayton nor the Fair Dismissal Act draws any distinction in the operation of that Act as between teachers and nonteachers. Section 36-26-101 describes only one probationary period for employees subject to the Fair Dismissal Act. Ex parte Clayton holds that that period — three years — need not be continuous or consecutive. 552 So.2d at 154-55.

As the majority notes, the Fair Dismissal Act is applicable to the employee in this case, McLeod, because that is the law of this case. The issue of whether McLeod, as a teacher at a junior college, would be governed by the Fair Dismissal Act, and therefore by the Supreme Court’s holding in Clayton, if the applicability of the Fair Dismissal Act to McLeod was not the law of this case, is an issue not presented to this court at this time.

      . By the time of the decision in McLeod II, the college had a new president, Dr. Linda Young, who was substituted for former President Beaty as a party in this case.

      . The college is now on the semester system.

      . In McLeod I, this court stated:

        “Clayton was a consolidated appeal of two cases: Clayton v. Board of School Commissioners of Mobile County and Day v. Southwest State Technical College. The plaintiffs in Day were instructors .... [O]nly the Clayton plaintiffs, who were not teachers, petitioned for certiorari review.”
      718 So.2d at 677 (footnote omitted).


author: THOMPSON, Judge.

text:
    Vickie Rollo GOODWIN v. Sandra Goodwin CALFEE.
    2010265.
    Court of Civil Appeals of Alabama.
    July 19, 2002.
    Jerry N. Quick, Birmingham, for appellant.
    Joe Knight, Birmingham, for appellee.
   THOMPSON, Judge.

Vickie Rollo Goodwin filed an action in the District Court of Jefferson County (hereinafter “the district court”) seeking damages from Sandra Goodwin Calfee for allegedly -willfully damaging Goodwin’s automobile. Calfee answered and counterclaimed, alleging malicious prosecution. The district court entered a judgment in favor of Goodwin on her claim and on Calfee’s counterclaim, and it awarded Goodwin damages in the amount of $2,069.17. Calfee appealed to the Circuit Court of Jefferson County (hereinafter “the trial court”) pursuant to § 6-6-350, Ala.Code 1975; she sought a trial by jury.

The trial court conducted a jury trial on September 5, 2001. The jury returned a verdict in favor of Calfee and awarded her $8,750 in compensatory damages and $8,750 in punitive damages. On September 5, 2001, the trial court entered a judgment on the jury’s verdict.

On October 9, 2001, Goodwin filed a motion for a new trial, purportedly pursuant to Rule 59, Ala. R. Civ. P. However, a postjudgment motion for a new trial, which operates to extend the time for taking an appeal, must be filed within 30 days of the entry of judgment. Rule 59(b), Ala. R. Civ. P. Goodwin filed her postjudgment motion more than 30 days from the entry of the trial court’s September 5, 2001, judgment. Therefore, that motion was untimely, and it did not work to extend the time for taking an appeal from that judgment. Overy v. Murphy, 827 So.2d 804 (Ala.Civ.App.2001); Bice v. SCI Alabama Funeral Home Servs., 764 So.2d 1280 (Ala.Civ.App.2000). The trial court was without jurisdiction to consider the untimely postjudgment motion.

Goodwin’s October 9, 2001, post-judgment motion did not operate to extend the time for taking an appeal; therefore, Goodwin was required to appeal within 42 days of the September 5, 2001, judgment. Rule 4(a)(1), Ala. R.App. P. Goodwin filed her notice of appeal on December 10, 2001, well in excess of the 42 days allowed by Rule 4(a)(1). Therefore, this court must dismiss the appeal as untimely. Rule 2(a)(1), Ala. R.App. P.; Overy v. Murphy, supra; Bice v. SCI Alabama Funeral Home Servs., supra.

APPEAL DISMISSED.

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


author: PITTMAN, Judge.

text:
    Michael HARAWAY v. Michael PHILLIPS and Tammy Phillips.
    2010378.
    Court of Civil Appeals of Alabama.
    July 26, 2002.

      G. David Odem, Florence, for appellant.
   PITTMAN, Judge.

Michael Phillips and Tammy Phillips filed a petition for protection from abuse, pursuant to the Protection from Abuse Act (“the Act”), § 30-5-1 et seq., Ala.Code 1975. The Phillipses alleged that Michael Haraway had followed their vehicle while driving his motorcycle, that he had followed too closely and had driven beside their vehicle, threatened them with violence, yelled profanity at them, and almost caused them and other drivers to wreck along Highway 72 in Rogersville. The Phillipses alleged in their petition that Haraway had committed similar threatening conduct toward them on prior occasions. Mrs. Phillips also alleged that Har-away had harassed and stalked her before her marriage; she and Haraway had dated for a short time, and he began this conduct after their relationship ended.

The trial court issued a protection-from-abuse order prohibiting Haraway from committing threatening conduct against the Phillipses in the future. Haraway requested a hearing so that he could contest the Phillipses’ allegations. Following the ore tenus hearing, the trial court continued the protection-from-abuse order for one year.

Haraway appeals. He argues that the Phillipses did not support their petition by a preponderance of evidence. He also argues that the Act does not apply in this case because he is not a “family or household member” as defined in § 30-5-2(a)(4). We conclude that this second argument is dispositive and we reverse the trial court’s judgment.

Section 30-5-2(a)(l) defines “abuse” as: “The occurrence of one or more of the following acts, attempts, or threats between family or household members, as defined by this chapter.”

Section 30-5-2(a)(4) defines “family or household members” as:

“A spouse, former spouse, parent, child, or any other person related within the 6th degree consanguinity or affinity or common-law marriage, a person with whom the plaintiff has a child in common, or a present or former household member.”

Haraway dated Tammy Phillips before she married Michael Phillips. Haraway and Tammy were never married. Hara-way is not related to Michael. Haraway was never a “household member” in either Michael’s or Tammy’s household. Therefore, we conclude that the Act does not apply in this case. The trial court erred by entering a protection-from-abuse order pursuant to the Act. The trial court’s judgment is reversed, and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

THOMPSON, J., concurs in the result.

      . This opinion does not preclude the Phillips-es from seeking other relief available to them under Alabama law.


text:
    S.C.D. v. ETOWAH COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2010092.
    Court of Civil Appeals of Alabama.
    Oct. 11, 2002.

      Rodney L. Ward, Gadsden, for appellant.
    Bill Pryor, atty. gen., and J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill, asst. atty. gen., Department of Human Resources, for appellee.
   On Rehearing Ex Mero Motu

PITTMAN, Judge.

This court’s opinion of July 26, 2002, is withdrawn, and the following opinion is substituted therefor.

Etowah County Department of Human Resources (“DHR”) filed a petition to terminate the parental rights of S.C.D. (“the mother”) as to R.T. and A.B. (“the children”). Following a one-day trial, the juvenile court terminated the mother’s parental rights. The mother appeals.

The mother argues that the juvenile court erred (1) in not granting her motion to continue the trial; (2) in admitting what she contends to be inadmissible evidence; (3) in terminating her parental rights as the result of a proceeding at which her attorney provided what she contends to be ineffective assistance of counsel; and (4) in entering a judgment that she contends is not supported by the evidence.

I. Motion to Continue

We will first address the mother’s argument that the trial court erred by denying her motion to continue the trial after two witnesses she had subpoenaed faded to appear for trial. Whether to grant or to deny a motion to continue in a termination-of-parental-rights case is within the discretion of the court and its decision will not be reversed absent a showing that the court has abused its discretion. M.S. v. State Dep’t of Human Res., 648 So.2d 584 (Ala.Civ.App.1994); Travis v. State Dep’t of Human Res., 547 So.2d 571 (Ala.Civ.App.1989); and Landers v. Ass’n for Guidance, Aid, Placement & Empathy of North Alabama, Inc., 472 So.2d 1055 (Ala.Civ.App.1985).

The two witnesses for the mother who failed to appear at trial were the mother’s sister and a neighbor. The mother stated that the purpose of their testimony was to establish her living arrangements and living conditions. The mother provided evidence, through her own testimony, as to her living arrangements and living conditions. Therefore, we conclude that the juvenile court did not abuse its discretion by denying the mother’s motion to continue.

II.Admissibility of Evidence

The mother next argues that the trial court erred by admitting DHR reports, which she apparently contends are inadmissible hearsay. The mother did not object to the admission of these reports; however, even if she had objected, the reports would nonetheless be admissible pursuant to § 12-15-65, Ala.Code 1975. See D.S.S. v. Clay County Dep’t of Human Res., 755 So.2d 584 (Ala.Civ.App.1999); and J.V. v. State Dep’t of Human Res., 656 So.2d 1234 (Ala.Civ.App.1995).

III.Ineffective Assistance of Counsel

We next address the mother’s argument that her attorney’s trial performance constituted ineffective assistance of counsel. This court has set out the analysis for an ineffective-assistance-of-counsel claim in a termination-of-parental-rights case as follows:

“[Procedural due process contemplates the basic requirements of a fair proceeding including an impartial hearing before a legally constituted court; an opportunity to present evidence and arguments; information regarding the claims of the opposing party; a reasonable opportunity to controvert the opposition’s claims; and representation by counsel if it is desired. See Danford v. Dupree, 272 Ala. 517, 132 So.2d 734 (1961); Almon v. Morgan County, 245 Ala. 241, 16 So.2d 511 (1944); [(other citations omitted) ]. Thus, the safeguards mandated by due process entitled a parent to the right of counsel in a permanent child deprivation proceeding. In re Welfare of Luscier, [84 Wash.2d 135, 524 P.2d 906 (1974) ]. And inherent to a parent’s right to legal representation in a deprivation hearing is the right to effective assistance of counsel. However, effective assistance of counsel does not require that a lawyer be infallible. See Taylor v. State, 291 Ala. 756, 287 So.2d 901 (1973).
“It is the general rule that relief from a court’s judgment will not be granted on the ground of incompetence or ineffective counsel merely because his opinion of appropriate trial tactics differs from the opinion of another attorney. E.g., Lynn v. Lynn, 4 Wash.App. 171, 480 P.2d 789 (1971). Instead, the test in cases of this type is whether an examination of the entire record demonstrates that the complaining party was afforded a fair trial. Lynn v. Lynn, supra.”

Crews v. Houston County Dep’t of Pensions & Sec., 358 So.2d 451, 455 (Ala.Civ.App.1978).

After reviewing the record, we conclude that her attorney’s trial performance did not constitute ineffective assistance of counsel. The attorney thoroughly cross-examined DHR’s witnesses and elicited meaningful testimony from those of the mother’s witnesses who appeared for the trial. The record indicates that the attorney adequately prepared for the trial and met with the mother to prepare her for the trial. As stated above, the attorney did not object to the admission of the DHR reports; however, also as stated above, the reports were admissible and an objection would have been properly overruled. We conclude that the attorney’s representation satisfies the requirements of Crews.

IV. Sufficiency of the Evidence

We will lastly address the mother’s argument that the juvenile court’s judgment terminating her parental rights is not supported by the evidence. A non-parent who seeks to terminate a parent’s parental rights must prove by clear and convincing evidence that the children are dependent and that there are no viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950 (Ala.1990). The mother does not argue that viable alternatives exist. Therefore, we will address only whether DHR presented clear and convincing evidence that the children are dependent.

Section 26-18-7(a), Ala. Code 1975, states, in pertinent part:

“If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
“(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child.
“(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child....
“(4) Conviction of and imprisonment for a felony.
“(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.
“(6) That reasonable efforts by the [DHR] ... leading toward the rehabilitation of the parents have failed.
“(8) That parental rights to a sibling of the child have been involuntarily terminated.”

Section 26-18-7(b) further provides that if the child is not in the custody of the parents, the juvenile court may consider whether the parents are providing monetary support for the child, whether they are regularly exercising visitation with the child, and whether they are adjusting their “circumstances to meet the needs of the child.”

DHR became involved with these children in 1997. Carol Edwards, a service supervisor with DHR, was the first caseworker. DHR placed the children in foster care in March 1997 following incidents where the mother left the children alone. The children were in foster care from March 1997 to July 2000. Edwards testified that the mother was not consistent in her scheduled contacts with DHR; that the mother moved several times; and that it was difficult to locate her at times. She did visit the children. On one occasion, the children and the mother engaged in a food fight, and the mother blamed the older child. The mother would often leave the scheduled visits early, complaining about the children’s behavior. Edwards testified that although the mother had attended parenting classes, she would not apply the parenting skills she learned at class.

In early summer 2000, DHR transferred the case to the permanency unit for termination of the mother’s parental rights; however, the mother remarried, moved to suitable housing, and obtained steady employment. DHR placed the children in the mother’s home in July 2000. Melissa White, a caseworker with DHR, was assigned to the case. White testified that the mother’s situation began to deteriorate in December 2000. She had separated from her husband and had moved out of the trailer, where they had been living. She told DHR that they could take the children back but that she would not give them any clothes except what the children were wearing. The children returned to DHR’s custody. White testified that DHR provided additional assistance to the mother but she would maintain employment only for days, and that she had entered into two more relationships that DHR believed were unhealthy for the children. DHR then made the decision to pursue terminating the mother’s parental rights.

We conclude that DHR presented clear and convincing evidence indicating that the children are dependent. DHR had been involved with the family for more than four years before it decided to petition for a termination of the mother’s parental rights. The evidence indicates that the mother never achieved a consistently stable lifestyle, housing, and employment, suitable for raising the children. The children were in foster care for 40 months before the mother was able to care for them, and she was unable to care for them for more than six months after they were placed in her home.

Therefore, we conclude that the trial court’s judgment terminating the mother’s parental rights is supported by the evidence.

ON REHEARING EX MERO MOTU: OPINION OF JULY 26, 2002, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

      . The mother’s attorney filed in this court a motion to withdraw, which this court granted on condition that the attorney file a statement of the issues setting out the errors the mother contends are contained in the trial court's judgment. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The attorney filed an Anders brief, and we will address the issues stated in that brief as the mother's arguments on appeal.