author: MURDOCK, Judge.

text:
    Luella WALKER v. DCH REGIONAL MEDICAL CENTER.
    2010183.
    Court of Civil Appeals of Alabama.
    Oct. 11, 2002.
    Certiorari Denied Jan. 24, 2003 Alabama Supreme Court 1020178.

      David Madison Tidmore of Cory, Watson, Crowder & DeGaris, P.C., Birmingham, for appellant.
    Alan Courtney Crowder of Phelps, Jenkins, Gibson & Fowler, L.L.P., Tuscaloosa, for appellee.
   MURDOCK, Judge.

Luella Walker sued DCH Regional Medical Center (“DCH”) in the Fayette Circuit Court, claiming that she was entitled to workers’ compensation benefits from DCH and that DCH had terminated her employment in violation of Ala.Code 1975, § 25-5-11.1. That Code section prohibits an employer from terminating an employee in retaliation for the employee’s filing for workers’ compensation benefits. The parties settled Walker’s workers’ compensation claim for $3,500; that settlement was approved by the trial court. Walker appeals from a summary judgment for DCH on her retaliatory-discharge claim.

Walker began her employment as a nursing assistant at DCH in May 1996. Approximately one month later Walker allegedly injured her back when she attempted to lift a patient. She filed a “First Report of Injury” in July 1996.

Walker received a copy of DCH’s employee handbook at the time that she became employed. The employee handbook contained a progressive disciplinary procedure for excessive unexcused absences; the procedure consisted of a verbal warning, followed by a written warning, followed by a suspension, and, finally, termination of employment. The employee handbook also stated:

“Instances of absence caused by on-the-job illness or injury, approved FMLA [Family Medical Leave Act] absences, excused absence(s) for death in the immediate family, jury duty, attendance at National Guard summer camp or weekend drill, and [Fayette Medical Center] approved meetings are not to be counted as instances of absence for excessive absenteeism purposes.”

(Emphasis added.) In addition, DCH offered testimony that it required all absences that an employee claimed were related to an on-the-job injury to be substantiated by a doctor’s excuse. The record indicates that Walker did not dispute DCH’s testimony regarding its practice of requiring a doctor’s excuse for absences related to on-the-job injuries and that she had supplied doctor’s excuses to DCH on numerous occasions after she allegedly injured her back.

After her alleged back injury, Walker returned to work for DCH, although she was occasionally subject to lifting restrictions imposed by a doctor. It was undisputed that Walker had only three unexcused absences between July 1996 and December 1996. However, in January 1997 the number of Walker’s unexcused absences increased, and DCH gave Walker a verbal warning because, it alleged, she had exceeded the number of unexcused absences permitted by DCH’s unexcused-absence policy. Approximately six weeks later, DCH gave Walker a written warning for exceeding the number of unexcused absences permitted by DCH’s unexcused-absence policy.

The evidence indicates that Walker had two additional unexcused absences in April 1997. Based on DCH’s unexcused-absence policy, she could have been suspended at that time. However, DCH did not suspend Walker’s employment until she had an additional unexcused absence in July 1997. At that time, DCH suspended Walker’s employment for three days.

In August 1997, Walker again allegedly violated DCH’s unexcused-absence policy and was given a “final warning” by her supervisor, JoAnn Nichols. Nichols informed Walker that her employment would be terminated if she had one more unexcused absence in the next five months and that “if she [had] an absence related to [a] workman’s [sic] compensation injury, she must see a physician and submit a doctor’s excuse, otherwise, she would be terminated for absences.”

DCH’s employee records indicate that Walker claimed that many of her unexcused absences were related to her alleged back injury. However, it is undisputed that she did not provide DCH with a doctor’s excuse to substantiate the reason for most of her 20 unexcused absences in 1997. It was also undisputed that Walker could walk from her work area to DCH’s emergency room to obtain the required doctor’s excuse if she desired to do so and that she had obtained a doctor’s excuse in that manner on some occasions in the past.

In early September 1997, Walker had several absences and provided a doctor’s excuse for those absences, including an absence on September 15, 1997, for which she obtained an excuse from Dr. James T. Barnett, Jr. Dr. Barnett provided Walker with an excuse that stated that Walker “[m]ay return to work lifting up to medium duty level of 50 lbs. This should meet job requirement of nursing assistance.” When Walker returned to work on September 15, 1997, she and Nichols signed a statement reflecting that Walker had been instructed as to the terms of Dr. Barnett’s “excuse” and that she had been instructed to obtain assistance if she needed to lift more than 50 lbs.

On September 26, 1997, Walker complained of back pain while she was at work and requested that she be permitted to go home. Nichols’s notes from her meeting with Walker on that date state, in pertinent part:

“Met with [Walker].... Questioned [Walker] as to what her reasons were for not being able to work her assignment the a.m. She stated, ‘My back is hurting.’ I asked her if she need to go to the doctor. She replied, ‘No.’ She admitted that she came to work today because she knew one more absence would result in termination due to attendance problems.
“Discussed attendance problems and her inability to work; therefore, she was terminated. She stated, ‘Fine.’ She then left out of the administrative office, slamming the door.”

DCH terminated Walker’s employment on September 26,1997.

In June 1998, Walker filed a complaint against DCH claiming that she had suffered a permanent partial disability as a result of her alleged 1996 back injury and that her employment had been terminated in violation of Ala.Code 1975, § 25-5-11.1. DCH filed an answer denying the material allegations of Walker’s complaint. As noted above, the parties settled Walker’s workers’ compensation claim for $3,500. The settlement agreement and the trial court’s order approving the settlement agreement specifically provided that Walker’s retaliatory-discharge claim would remain pending and that Walker had not released DCH from that claim.

In August 2001, DCH filed a motion for a summary judgment as to Walker’s retaliatory-discharge claim. In support of its motion, DCH filed, among other things, a copy of the employee handbook that had been provided to Walker when DCH hired her, portions of Walker’s attendance records and employee records, Walker’s deposition, and Nichols’s deposition. Walker filed a statement in opposition to DCH’s summary-judgment motion. Walker supported her statement in opposition with, among other things, excerpts from her deposition, excerpts from Nichols’s deposition, and an affidavit submitted by Kathy Beasley, a former nurses’ aide at DCH who alleged that she had been injured on the job and that “[o]n August 26, 1997, I was fired from my job with [DCH]. It is my belief that I was fired in retaliation for my fifing a workers’ compensation claim.”

DCH filed a motion to strike Beasley’s affidavit, arguing that the affidavit was conclusory, that it raised no issue of material fact as to Walker’s claim, and that it merely stated inferences based upon belief. DCH also alleged that Beasley’s affidavit directly contradicted deposition testimony that Beasley had apparently given in support of her own claims against DCH.

On September 5, 2001, the trial court entered a summary judgment in favor of DCH and against Walker as to Walker’s retaliatory-discharge claim. On September 25, 2001, the trial court issued a detailed opinion in which it explained the reasons it believed a summary judgment was due to be granted to DCH and in which it granted DCH’s motion to strike Beasley’s affidavit. Walker appealed to the Alabama Supreme Court. The case was transferred to this court, pursuant to Ala.Code 1975, § 12-2-7.

Walker argues that the trial court erred in granting DCH’s motion for a summary judgment because, she says, she presented substantial evidence indicating that DCH’s alleged reason for terminating her employment was a pretext for a retaliatory discharge. Walker also argues that the trial court erred by granting DCH’s motion to strike Beasley’s affidavit.

As to Walker’s argument regarding the trial court’s granting of DCH’s motion to strike Beasley’s affidavit, Walker has cited no legal authority in support of her argument. Rule 28(a)(10), Ala. R.App. P., states that the argument shall contain “the contentions of the appellant with respect to the issues presented, ... with citations to the cases, statutes, other authorities, and parts of the record relied on.” We will not address Walker’s argument as to this issue because it fails to include references to supporting authority. See, e.g., Etheredge v. Etheredge, 730 So.2d 245, 248 (Ala.Civ.App.1999).

As to Walker’s argument that the trial court erred in granting DCH’s motion for a summary judgment, we review de novo a trial court’s decision to grant a motion for a summary judgment. The party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), Ala. R. Civ. P. If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992) (footnote omitted). Substantial evidence is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In determining whether summary judgment is proper, the court must view the evidence in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

“Under Alabama law, an employment contract is terminable at will by either party — for a good reason, a wrong reason, or no reason at all.... [However, in] order to ameliorate the effect of the employment-at-will doctrine in the context of an employee discharged for filing a claim for workers’ compensation benefits, the Legislature ... enacted § 25-5-11.1, Ala.Code 1975.”

Bleier v. Wellington Sears Co., 757 So.2d 1163, 1167-68 (Ala.2000).

Section 25-5-11.1 provides, in pertinent part, that “[n]o employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers’ compensation benefits under this chapter.” As to the burden of proof for a claim under § 25-5-11.1, our Supreme Court has stated:

“[A]n employee may establish a prima facie case of retaliatory discharge by proving that he was ‘terminated’ because he sought to recover workers’ compensation benefits, which would be an impermissible reason. The burden would then shift to the ... employer to come forward with evidence that the employee was terminated for a legitimate reason, whereupon the [employee] must prove that the reason was not true but a pretext for an otherwise impermissible termination.”

Twilley v. Daubert Coated Prods., Inc., 536 So.2d 1364, 1369 (Ala.1988)(emphasis added).

“[I]n the context of summary judgment, if the defendant has supported a summary judgment motion with evidence of a legitimate reason for terminating the plaintiff, the plaintiff must then refute that showing with his own prima facie case.... If the defendant’s showing of a legitimate reason is conclusive enough to establish that ‘there is no genuine question as to [that] material fact and that the moving party is entitled to a judgment as a matter of law,’ Rule 56(c), Ala. R. Civ. P., the plaintiff would also have to produce evidence to refute that showing.”

Culbreth v. Woodham Plumbing Co., 599 So.2d 1120, 1122 (Ala.1992) (emphasis added). We also note that “[a] company is not liable for retaliatory discharge when it terminates a worker based on the neutral application of an attendance policy.” Syncro Corp. v. Suttles, 814 So.2d 873, 876 (Ala.Civ.App.2000).

The parties agree that Walker established a prima facie case of retaliatory discharge and that in response DCH presented substantial evidence of a legitimate reason for terminating Walker, i.e., the violation of DCH’s unexcused-absence policy. However, Walker argues that she presented substantial evidence that DCH’s alleged reason for terminating her employment was a pretext because, she says, (1) DCH’s employee handbook did not state that a doctor’s excuse was necessary to substantiate an absence related to an on-the-job injury; (2) DCH failed to accurately record some of her excused absences; (3) DCH did not strictly follow its policy regarding absences because it was lenient with her when it could have suspended her in April 1997; (4) her supervisors harassed her because they refused to assign her to light-duty work; (5) DCH offered more than one reason for her termination, i.e., both attendance problems and inability to work; and (6) Beasley’s affidavit would support an inference that DCH had engaged in a pattern and practice of retaliatory discharge.

Walker has offered multiple arguments in an effort to persuade this court that she introduced substantial evidence that DCH’s alleged reason for her termination was a pretext. After carefully reviewing the record in this case, we find no merit in any of Walker’s arguments.

Walker first argues that she presented substantial evidence of pretext because, she says, DCH’s handbook did not require a doctor’s excuse to substantiate an absence that the employee claimed was related to an on-the-job injury. Although Walker correctly describes the language in DCH’s employee handbook, DCH offered undisputed evidence that it required a doctor’s excuse to substantiate that an absence was related to an on-the-job injury and that Walker was aware, long before her employment was terminated, that she was required to substantiate her absences with a doctor’s excuse.

In Syncro, supra, this court upheld a judgment in favor of an employee when the employee had strictly complied with an employee handbook. 814 So.2d at 876. However, Syncro is distinguishable from the present case.

In Syncro, the employee handbook stated, in pertinent part:

“ ‘If, for any reason you find that you cannot report for work at your regular starting time, or you know in advance that you will be absent, notify your supervisor. Explain the absence and give the date and time you expect to be back on the job.
“ ‘1. An unreported and unexplained absence from work for two consecutive work days results in the termination of employment.’ ”

814 So.2d at 876. This court noted that the employee in Syncro had testified that she “reported and explained” her absence in accordance with the literal terms of the employee handbook but that the employer offered testimony that the employee had not reported and explained the absence before she was terminated. Id. This court held that, based upon the language of the employee handbook and the employee’s testimony, the employee had presented substantial evidence that the employer’s reason for terminating her was a pretext so as to support a judgment in her favor. Syncro, 814 So.2d at 876-77.

In this case, DCH offered undisputed evidence of the requirement that employees supply a doctor’s excuse for any absence related to an on-the-job injury. DCH also offered undisputed evidence that Walker supplied doctor’s excuses to substantiate some, but not all, of her absences, and that she was specifically warned approximately one month before her termination that DCH would require a doctor’s excuse to substantiate any absence for medical reasons after August 1997. In light of Walker’s undisputed lack of compliance with DCH’s policies, the language contained in the employee handbook does not constitute substantial evidence that DCH’s alleged reason for terminating Walker was merely a pretext.

Walker next argues that DCH’s failure to accurately record some of her absences as excused constituted substantial evidence that DCH’s stated reason for terminating her was a pretext. It was undisputed that DCH accurately recorded the vast majority of Walker’s absences and that many of those absences had no relation to her alleged injury. More importantly, however, it was undisputed that DCH accurately recorded the absences for which it disciplined Walker and particularly the unexcused absence for which Walker was terminated. Based upon the foregoing, DCH’s failure to accurately record some of Walker’s absences as excused did not constitute substantial evidence that DCH’s alleged reason for her termination was a pretext.

Walker next argues that, according to DCH’s unexcused-absence policy, she should have been suspended in April 1997 after she had had two unexcused absences; however, she was not suspended until she had a third unexcused absence in July 1997. Walker cites Buzbee v. Alabama Waste Services, Inc., 709 So.2d 61 (Ala.Civ.App.1998), for the proposition that an employer’s failure to follow its termination policy constitutes substantial evidence that the employer’s reason for terminating an employee was a pretext for an impermissible termination. Walker’s reliance on Buzbee is misplaced.

In Buzbee, the employer testified that its normal policy regarding termination consisted of a verbal warning, followed by a written warning, followed by termination. Buzbee, 709 So.2d at 63-64. The employer stated that it had provided the employee with a verbal warning, but admitted that it had never provided the employee with a written warning before it terminated him. Based upon that admission, and testimony from co-employees that they had overheard the employee’s supervisor discussing his plan to terminate the employee after the employee returned to work and that the co-employees had been instructed not to communicate with the employee, we held that a summary judgment for the employer was improper. Id. at 64.

Unlike the employee in Buzbee, however, it is undisputed that DCH gave Walker the benefit of each stage of DCH’s progressive disciplinary procedure before she was terminated. Walker is arguing that DCH’s leniency and its attempt to provide her with “a second chance” constitute substantial evidence that its reason for terminating her was a pretext. If anything, DCH’s failure to strictly enforce its policy proves that DCH was not attempting to terminate Walker, but was genuinely seeking to retain her services. DCH’s failure to strictly follow its disciplinary procedures did not constitute substantial evidence that its reason for terminating Walker was a pretext. As to Walker’s remaining arguments, as noted above, we have thoroughly reviewed the record and cannot conclude that Walker presented substantial evidence that DCH’s alleged reason for her discharge was a pretext. We also note that the trial court issued a detailed, well-written opinion summarizing the evidence and the law applicable to Walker’s arguments. Based upon the foregoing, the trial court did not err in entering a summary judgment in favor of DCH as to Walker’s retaliatory-discharge claim.

AFFIRMED.

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

      . Walker presented testimony that a few of the 20 unexcused absences were actually excused absences because she provided a doctor’s excuse for them. However, there is no evidence indicating that DCH disciplined Walker based upon mislabeled absences. Instead, the undisputed evidence is that DCH did not attempt to terminate Walker as early as it could have.

      . Rule 28 was amended effective June 1, 2002. The pertinent provisions were previously found at Rule 28(a)(5), Ala. R.App. P.

      . The acknowledgment Walker executed when she received the employee handbook stated:
      "I understand that the purpose of this Handbook is to provide employees of [DCH] with general information regarding the policies and procedures [DCH] attempts to follow in most cases, but that neither this Handbook nor any other provision of this Handbook is an employment contract or any other type of contract.”
      Our Supreme Court has stated that an employee handbook containing a disclaimer such as the one in DCH’s handbook is not a contract. See, e.g., Campisi v. Scoles Cadillac, Inc., 611 So.2d 296 (Ala.1992).


source: Caselaw Access Project

author: YATES, Presiding Judge.

license: Public Domain

text:
    Ex parte R.S.C. (In re State ex rel. A.S. v. R.S.C.)
    2010868.
    Court of Civil Appeals of Alabama.
    Oct. 18, 2002.
    As Modified on Denial of Rehearing Jan. 17, 2003.

      Calvin M. Howard, Birmingham, for petitioner.
    William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Jennifer M. Bush, asst. atty. gen., Department of Human Resources, for respondent.
   YATES, Presiding Judge.

J.W.C. (“the mother”) and R.S.C. (“the father”) were divorced by a judgment of the Jefferson Circuit Court in November 1983. Pursuant to a modification of the parties’ divorce judgment on May 26,1988, the mother was awarded custody of the parties’ daughter, born in August 1980, and their son, born in December 1982. The father was ordered to pay $225 per month in child support.

On February 10, 1999, the State, on behalf of A.S. (“the aunt”), filed a petition in the Calhoun County Juvenile Court for child support, because she had physical custody of the two children. The aunt requested that the father pay child support to her for the care and support of the two children. The father moved to dismiss, arguing that the aunt lacked standing because she was not the “legal and/or proper” custodian of the children. The father attached an affidavit to the motion; in that affidavit he stated that he had never given the mother permission to transfer legal custody of the children to the aunt but that he recognized that the children “went to visit with and stay with [the aunt] awhile back.”

On July 13, 1999, at a hearing at which all parties were present, the parties agreed and the court ordered that all child-support payments be redirected to the Calhoun Circuit Court for receipt by the aunt. The court further ordered that any arrear-age as of July 13, 1999, remained the property of the mother.

On January 4, 2000, the State, on behalf of the aunt, filed a notice of application for child-support services and a request for collection of child-support payments. The aunt requested that all payments be made to the State because she was receiving public assistance on behalf of the children. On January 10, 2000, the court ordered that all future child-support payments be paid to the State.

On January 22, 2002, the State, on behalf of the aunt, filed a petition seeking to have the father held in contempt, alleging that the father was $900 in arrears as of October 20, 2001, and that the accumulated interest on that amount was $36. On March 6, 2002, the father moved to dismiss the contempt petition on the grounds that the aunt lacked standing to file such a petition, that both children had reached the age of majority before the contempt petition had been filed, and that, because the children had reached the age of majority, contempt was not a proper form of relief. On April 11, 2002, the State, on behalf of the aunt, filed a response to the father’s motion, arguing that the aunt had standing to bring the action pursuant to the July 13, 1999, order of the Calhoun Juvenile Court and that a petition for contempt was the proper procedural vehicle to be used to enforce the father’s child-support obligations.

At a hearing held on April 16, 2002, the trial court entered an order, finding that the father owed $3,163.50 in child-support arrearage and interest. The court also found that the father’s failure to pay was due to willful neglect and not to an inability to pay. The court ordered the father to pay $200 per month beginning on May 1, 2002, entered an income-withholding order against the father’s employer, and issued an arrest warrant for the father for failure to appear at the April 16, 2002, hearing.

On May 10, 2002, the father filed a postjudgment motion entitled “Motion for Order Ex Mero Motu to forthwith Recall, Rescind, Revoke and Set Aside the Court’s Income ‘Withholding Order.’ ” The motion sought relief from the entry of the income-withholding order on the basis of the holding in W.L.S. v. K.S.S.V., 810 So.2d 777 (Ala.Civ.App.2001), which provides that an income-withholding order may not be used to collect a child-support arrear-age after a child has reached the age of majority. That same day, the father filed a “Motion to Alter, Amend, or Vacate Judgment,” also seeking relief from the entry of the income-withholding order based on the holding in W.L.S. v. K.S.S.V., supra. He also argued that the aunt lacked standing to bring the petition for contempt because, by the terms of the original divorce judgment, the mother was the children’s legal custodian.

On June 3, 2002, the father petitioned this court for a writ of mandamus directing the circuit court to vacate its April 16, 2002, order. In his petition, the father argued that the aunt lacked standing to bring the petition for contempt and that, therefore, the April 16, 2002, order was void. He also argued that that court lacked the authority to enter the income-withholding order. On June 6, 2002, the trial court denied the father’s post-judgment motions on the ground that the motions were untimely filed.

The State, on behalf of the aunt, argues that the father’s petition for a writ of mandamus is untimely because he should have filed the petition within 14 days of the trial court’s April 16, 2002, judgment. The father argues that the motions he filed on May 10, 2002, were, in essence, Rule 60(b)(4), Ala. R. Civ. P., motions for relief from judgment. He further argues that, pursuant to Rule 1(B), Ala. R. Juv. P., no postjudgment motion filed in juvenile court may remain pending more than 14 days. Therefore, he contends, his postjudgment motions were deemed denied on May 24, 2002, and his petition for a writ of mandamus was timely filed on June 3, 2002, less than 14 days after his postjudgment motions were deemed denied by operation of law.

We agree with the father that his motions filed on May 10, 2002, were seeking relief from a judgment, pursuant to Rule 60(b), Ala. R. Civ. P. The father argued in his motions that the trial court’s judgment was void because the aunt lacked standing to bring the contempt petition as a “nonparent.” Standing is related to subject-matter jurisdiction, lack of which is grounds for relief under Rule 60(b)(4). He also sought relief on the ground that the trial court lacked the authority to enter an income-withholding order based on the holding in W.L.S. v. K.S.S.V. However, we disagree with the father’s argument that his Rule 60(b)(4) motions were deemed denied by operation of law, pursuant to Rule 1(B), Ala. R. Juv. P.

Rule 59.1, Ala. R. Civ. P., provides that “[n]o post-judgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days.” In district court, “Rule 59.1 applies in the district courts except that the time period of ninety (90) days is reduced to fourteen (14) days.” Rule 59.1(dc). Rule 1(A), Ala. R. Juv. P., provides that the Rules of Civil Procedure are applicable in juvenile court to the extent they are not inconsistent with the Rules of Juvenile Procedure. Rule 1(B), Ala. R. Juv. P., provides that no postjudgment motion shall remain pending for more than 14 days.

It is well settled that the 90-day period for pending postjudgment motions applies only to motions filed under Rules 50, 52, 55, and 59, and that it does not apply to Rule 60(b) motions to set aside a judgment. Conway v. Housing Auth. of Birmingham Dist., 676 So.2d 344 (Ala.Civ.App.1996). A Rule 60(b) motion does not bring up for review the merits of the underlying judgment and is instead a collateral attack on the judgment. It does not affect the finality of a judgment or suspend its operation. While a postjudgment motion filed pursuant to Rule 50, 52, 55, or 59 cannot remain pending in the juvenile courts for more than 14 days, J.S. v. S.W., 702 So.2d 169 (Ala.Civ.App.1997), a Rule 60(b) motion for relief from judgment is not deemed denied by operation of law under Rule 1(B), Ala. R. Juv. P. Therefore, the father’s petition for a writ of mandamus seeking to set aside a purported denial of a Rule 60(b) motion by operation of law was premature because the trial court had not yet ruled on the motions.

Rule 21(a), Ala. R.App. P., provides that “[t]he presumptively reasonable time for filing a petition seeking review of an order of a trial court shall be the same as the time for taking an appeal.” The Committee Comments to Amendments to Rule 21(a) and 21(e)(4) provide:

“[Wjhere the petition for the writ of mandamus challenges an action of the trial court, the amended rule adopts as the presumptively reasonable time the 42-day period for appealing from a final judgment in a civil ease, unless the time for appeal is shorter, pursuant to a rule or a statute (see, e.g., Rule 4(a)(1)), in which case the shorter time becomes the presumptively reasonable time.”

Rule 4(a)(1)(E), Ala. R.App. P., provides that an appeal from the final order or judgment issued by a juvenile court shall be filed within 14 days of the date of the order that is appealed. The father’s petition for a writ of mandamus, filed on June 3, 2002, was premature because the trial court did not deny his Rule 60(b) motions until June 6, 2002. Even if the father had timely filed his petition after the trial court denied the motions on June 6, 2002, he would not be entitled to a writ of mandamus because he had an adequate remedy through a direct appeal.

“A writ of mandamus is a drastic and extraordinary remedy. Ex parte Johnson Land Co., 561 So.2d 506 (Ala.1990). To justify the issuance of such a writ, there must be a clear showing of injury to the petitioner. Id. The writ will not issue absent a clear abuse of discretion by the trial court or where the petitioner has some other adequate remedy. Ex parte Jones, 447 So.2d 709 (Ala.1984); Ex parte Mid-Continent Systems, Inc., 447 So.2d 717 (Ala.1984).”

Ex parte J.E.W., 608 So.2d 728, 729 (Ala.1992).

In Ex parte Spears, 621 So.2d 1255, 1256-57 (Ala.1993), our supreme court stated:

“It is now a well-established general rule in this state that if the matters complained of can ultimately be presented by an appeal, a writ of mandamus will not be issued. Ex parte Fowler, 574 So.2d 745 (Ala.1990). However, this Court, exercising its discretion, has recognized certain exceptions to this general rule in specific cases where appeals are not considered to be adequate to prevent ‘undue injury.’ See, e.g., Ex parte Nissei Sangyo America, Ltd., 577 So.2d 912 (Ala.l991)(mandamus proper to review discovery rulings); Ex parte Insurance Co. of North America, 523 So.2d 1064 (Ala.1988)(mandamus proper to enforce a trial court’s compliance with this Court’s mandate); Ex parte Rush, 419 So.2d 1388 (Ala.1982)(mandamus proper to enforce a statutory or constitutional right to a jury trial); Ex parte Weissinger, [247 Ala. 113, 22 So.2d 510 (1945) ](mandamus proper to vacate certain interlocutory rulings in divorce cases); see, also, Ex parte Brooks, 264 Ala. 674, 89 So.2d 100 (1956); and Brittain v. Jenkins, 263 Ala. 683, 83 So.2d 432 (1955), and the cases cited therein. The rationale underlying the recognition of these exceptions has not always been crystal clear. For example, the remedy by appeal that will make mandamus review unavailable was described by this Court in one case as ‘one competent to afford relief on the very subject matter in question, and which is equally convenient, beneficial, and effectual.’ See East v. Todd, 284 Ala. 495, 499, 226 So.2d 153, 156 (1969). Matters of expense and public interest have also been considered important factors in some cases. See, e.g., Ex parte Weissinger, supra. On the other hand, in Ex parte Moss, 278 Ala. 628, 179 So.2d 753 (1965); and Ex parte Brooks, supra, this Court stated that expense and inconvenience were not controlling in determining whether a party had an adequate remedy by appeal.”

The denial of a Rule 60(b) motion is reviewable on appeal. Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So.2d 655 (Ala.2001); Ex parte Keith, 771 So.2d 1018 (Ala.1998). As a result, the father should have appealed from the denial of his Rule 60(b) motions.

It appears that the father sought mandamus relief rather than an appeal because he contends that a void judgment will not support an appeal, citing Farmer v. Farmer, 422 So.2d 679 (Ala.Civ.App.2002). In Farmer, the father filed a Rule 59(e) motion to alter, amend, or vacate the judgment 34 days after a divorce judgment was entered. Although the motion was untimely, the trial court held a hearing on the motion. At the hearing, the father admitted that the motion was untimely, and he attempted to substitute for that motion a petition to modify the judgment. The mother’s attorney objected and moved to strike, arguing that filing a petition to modify the divorce judgment constituted the filing of a new case that required payment of a filing fee and proper service on the mother. The trial court denied the mother’s motion to strike and proceeded to take testimony. When the trial court denied the petition to modify, the father appealed. We held that handing the petition to modify to the trial judge and to the mother’s attorney in open court did not constitute a proper “filing” for the purposes of Rule 3, Ala. R. Civ. P., as that term is defined in Rule 5(e), Ala. R. Civ. P. We also held that the father’s failure to pay a filing fee was a jurisdictional defect and that the father’s in-court service of the petition to modify was not proper service to the mother, as required by Rule 4, Ala. R. Civ. P. We concluded that the trial court’s judgment was void for lack of jurisdiction, and, because a void judgment will not support an appeal, the father’s appeal was dismissed.

In the present case, the father’s petition for a writ of mandamus is related to his Rule 60(b)(4) motions. Subsection (4) of Rule 60(b) permits relief from a final judgment when that judgment is void. It is important to note that a judgment is not void simply because it is erroneous, because Rule 60(b) is not intended as a substitute for appeal. R.J. Reynolds Tobacco Co. v. Cantley, 717 So.2d 751 (Ala.1998). A judgment is void under Rule 60(b)(4) only if the court that rendered the judgment lacked subject-matter jurisdiction, personal jurisdiction, or if it acted in a manner inconsistent with due process of law. Osborn v. Roche, 813 So.2d 811 (Ala.2001). A Rule 60(b) motion does not bring the underlying judgment up for review but presents only the question of the propriety of the judgment denying the Rule 60(b) motion. Sanders v. Blue Cross-Blue Shield of Alabama, Inc., 368 So.2d 8 (Ala.1979). In Fanner, supra, the appeal was from the underlying judgment. In the present case, the petition for a writ of mandamus is related to the of the father’s Rule 60(b)(4) motions, collaterally attacking the judgment.

Even if the father had timely filed an appeal, he would not be entitled to relief under Rule 60(b).

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

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

A judgment is void under Rule 60(b)(4) if the court rendering the judgment lacked subject-matter jurisdiction. The doctrine of standing encompasses limitations on the court’s authority to hear a case. “When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999). “ ‘Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation.’” Id. at 1028, quoting National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994). Standing turns on “ ‘whether the party has been injured in fact and whether the injury is to a legally protected right.’” 740 So.2d at 1027, quoting Romer v. Board of County Comm’rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998)(Kourlis, J., dissenting).

In the present case, the aunt did have standing to file the January 22, 2002, contempt petition. A parent’s duty to support a minor child exists regardless of whether that parent is the custodian. State ex rel. Dep’t of Human Res. v. Sullivan, 701 So.2d 16 (Ala.Civ.App.1997). On July 20, 1999, the husband agreed to redirect his child-support payments to the Calhoun Circuit Court because the children to whom he owed support were then in the aunt’s physical custody in Calhoun County. Based on that agreement, the trial court entered an order redirecting the payments. The aunt, as the physical custodian of the children in July 1999, had a substantial interest and a personal stake in receiving support on behalf of the children. Because the father was not paying the support he had agreed to pay, the aunt applied for, and received, aid from the State. In return, she assigned the right to enforce the child-support order to the State. Clearly, the State had an interest in protecting the children’s right to continuing support from their father, and the State had an interest in protecting its right to be reimbursed for any aid paid on behalf of the children. § 38-10-6, Ala.Code 1975; State ex rel. McDaniel v. Miller, 659 So.2d 640 (Ala.Civ.App.1995).

With regard to the father’s argument that the judgment is void under Rule 60(b)(4) because the trial court was without authority to enter an income-withholding order, he is not entitled to relief from the judgment on this ground. A judgment is void under Rule 60(b)(4) only if the court that rendered it lacked subject-matter jurisdiction or personal jurisdiction or acted in a manner inconsistent with due process. Neither subject-matter jurisdiction nor personal jurisdiction is affected by the income-withholding order. Due process requires notice and an opportunity to be heard, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Ex parte Segrest, 718 So.2d 1 (Ala.1998), which was provided to the father when he was notified of the contempt petition and of the hearing. As stated earlier, a judgment is not void if it is merely erroneous because Rule 60(b)(4) is not intended as a substitute for a timely appeal. Although the trial court erred in entering an income-withholding order under W.L.S. v. K.S.S.V., the father’s characterization of the judgment as void within the meaning of Rule 60(b)(4) is unpersuasive.

The trial court’s mistaken interpretation of caselaw does not indicate a “mistake” as contemplated by Rule 60(b)(1). Subsection (1) of Rule 60(b) provides that “mistake, inadvertence, surprise, or excusable neglect” may be a grounds for relief from judgment. However, it is well settled that a trial court’s erroneous ruling on the law is not the type of “mistake” contemplated by Rule 60(b)(1). City of Birmingham v. City of Fairfield, 396 So.2d 692 (Ala.1981).

“ ‘If the court merely wrongly decides a point of law, that is not “inadvertence, surprise, or excusable neglect.” Moreover, these words, in the context of the rule, seem addressed to some special situations justifying extraordinary relief. Plaintiffs motion is based on the broad ground that the court made an erroneous ruling, not that the mistake was attributable to special circumstances ....
“ ‘A contrary view, that “mistake” means any type of judicial error, makes relief under the rule for error of law as extensive as that available under Rule 59(e), which permits motions to “alter or amend judgments.” Obviously, any such motion presupposes a mistake. Indeed, the argument advanced is that a broad construction of “mistake” beneficially extends the [14]-day limit for motions under Rule 59(e). Calling this a benefit loses sight of the complementary interest in speedy disposition and finality, clearly intended by Rule 59.’ ”

Id. at 695, quoting Silk v. Sandoval, 435 F.2d 1266, 1267-68 (1st Cir.1971).

Subsection (6) of Rule 60(b) refers to “any other reason justifying relief from the operation of the judgment.” Relief under subsection (6) is not available if the asserted grounds for relief would have been available under subsections (1) through (5). R.J. Reynolds Tobacco Co. v. Cantley, supra. Rule 60(b)(6) provides an equitable remedy. Neal v. Neal, [Ms. 1991439, September 6, 2002] — So.2d —(Ala.2002).

“[U]nder Rule 60(b)(6), relief is granted only in those extraordinary and compelling circumstances when the party can show the court sufficient equitable grounds to entitle him to relief, but relief should not be granted to a party who has failed to do everything reasonably within his power to achieve a favorable result before the judgment becomes final; otherwise, a motion for such relief from a final judgment would likely become a mere substitute for appeal and would subvert the principle of finality of judgments. See the Comment to Federal Rule of Civil Procedure 60(b). As the Court held in Nowlin v. Druid City Hosp. Bd., 475 So.2d 469 (Ala.1985), Rule 60 is no substitute for an appeal and is not available to relieve a party from his failure to exercise the right of appeal.”

Patterson v. Hays, 623 So.2d 1142, 1145 (Ala.1993).

In the present ease, the father did not timely file a Rule 59 motion or seek a direct appeal from the judgment. As a result, he failed to do everything reasonably within his power to achieve a favorable result before the judgment became final. Therefore, he would not have been entitled to equitable relief under Rule 60(b)(6).

In conclusion, the father’s petition for a writ of mandamus was untimely. However, even if had timely filed the petition, he was not entitled to the relief requested in his mandamus petition because he had an adequate remedy of an appeal from the denial of the Rule 60(b) motions. Even if he had timely filed an appeal, the father was not entitled to relief from the underlying judgment based on Rule 60(b).

PETITION DENIED.

THOMPSON and PITTMAN, JJ„ concur.

      . A Rule 60(b)(4), (5), or (6) motion may be filed within a “reasonable time” after entry of a judgment. Ex parte E.D., 777 So.2d 113 (Ala.2000)(Rule 60(b)(6) motion filed within 60 days after the appellate court affirmed the termination of the mother’s parental rights was filed within a reasonable time). Here, the judgment was entered on April 16, 2002, and the father filed his motion on May 10, 2002.

      . In Ex parte Gamble, 709 So.2d 67 (Ala.Civ.App.1998), mandamus relief was available where the trial court had not yet ruled on a Rule 60(b) motion and the petitioner was seeking an order requiring the trial court to address the merits of the motion where the trial court had clearly refused to do so. In the present case, the father was not requesting an order compelling the trial court to rule on his postjudgment motions nor was there anything in the record to indicate that the trial court had refused to address his Rule 60(b) motions.

      . A contempt petition may be used to enforce past-due child-support payments even after the child has reached the age of majority. Davenport v. Hood, 814 So.2d 268 (Ala.Civ.App.2000).


author: CRAWLEY, Judge.

text:
    Jerry DANIELS v. DECATUR HOTEL COMPANIES d/b/a Holiday Inn.
    2010650.
    Court of Civil Appeals of Alabama.
    Oct. 18, 2002.
    Rehearing Denied Nov. 22, 2002.
    Donald A. Chapman, Decatur, for appellant.

      John W. Clark, Jr., and Kevin A. Witt of Clark & Scott, P.C., Birmingham, for ap-pellee.
   CRAWLEY, Judge.

Jerry Daniels appeals from the summary judgment for Decatur Hotel Companies, doing business as Holiday Inn (“the hotel”). We reverse and remand.

On January 14, 2000, Daniels sued the hotel seeking compensatory and punitive damages based on the hotel’s alleged negligent and wanton conduct that caused him to be injured when the lights in the hotel went out. On February 3, 2000, the hotel filed an answer, which set forth the affirmative defenses of contributory negligence and assumption of risk. On October 24, 2001, the hotel filed a motion for a summary judgment with a supporting brief and exhibits. The hotel argued in its motion, in part, that it had no duty to warn Daniels of the darkness because it was an open and obvious condition.

On November 19, 2001, Daniels filed a motion objecting to the hotel’s setting out for the first time in its motion for a summary judgment the affirmative defense that the darkness constituted an open and obvious condition. On that same day, Daniels also filed a response to the hotel’s motion for a summary judgment with a supporting brief and exhibits. A hearing was conducted on the hotel’s motion on November 29, 2001. On January 9, 2002, the trial court entered an order concluding that the darkness was an open and obvious condition and entering a summary judgment for the hotel. On February 20, 2002, Daniels filed a notice of appeal to the supreme court. On April 1, 2002, this case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala. Code 1975.

Daniels first argues that the trial court erred in entering a summary judgment for the hotel based on the open-and-obvious-condition defense when the hotel did not raise it until it filed its motion for a summary judgment. The argument that a condition is open and obvious is an affirmative defense and upon which the defendant has the ultimate burden of proof. See Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1194 (Ala.2002). Our review of the record shows that Daniels timely objected to the hotel’s raising this affirmative defense for the first time in its motion for a summary judgment and that the hotel never filed an amended answer to include the defense before the trial court’s hearing on its motion for a summary judgment.

Our supreme court addressed this very same factual scenario in Bechtel v. Crown Central Petroleum Corp., 451 So.2d 793 (Ala.1984). In Bechtel, the supreme court stated:

“Crown correctly points out that it is within the court’s discretion to allow the defendant to raise an affirmative defense after the initial answer to the complaint. In support of this proposition it quotes from Freeman v. Blue Mountain Industries, 395 So.2d 1049 (Ala.Civ.App.1981):
“ ‘Rule 15(a), [Ala. R. Civ. P.], expressly provides that amendments should be freely allowed when justice so requires. Stead v. Blue Cross-Blue Shield, 294 Ala. 3, 310 So.2d 469 (1975). The party opposing the amendment must show that the amendment would cause actual prejudice or undue delay in order to bar the amendment. Bracy v. Sippial Electric Co., Inc., Ala. 379 So.2d 582 (1980).’
395 So.2d at 1050.
“The weakness in Crown’s argument is that both Freeman and Rule 15(a) pertain to the amendment of pleadings. If Crown had attempted to amend its answer to raise the defense, the discretion of the trial court would have been invoked, and the burden would have been upon Bechtel to show that such amendment would cause actual prejudice or undue delay. This court has recently allowed a defendant to amend his answer in order to raise an affirmative defense after the defendant had filed a motion for summary judgment based on the defense. Piersol v. ITT [Phillips] Drill Division, Inc., 445 So.2d 559 (Ala.1984). However, Rule 8(c) requires that in pleading, a party ‘shall set forth affirmatively’ any matter constituting an affirmative defense. In Piersol, the defendant, after answering the complaint, filed a motion for summary judgment, alleging that he was entitled to such a judgment based on the applicable statute of limitations. Some four months later, but before the court had ruled on the motion, the defendant filed an amended answer in order to raise the defense of the statute of limitations.
“In the case before us, five weeks lapsed between the filing of the motion for summary judgment and the court’s hearing on the motion. There is no indication that Crown attempted to amend its answer during that time, or thereafter, although Bechtel had filed a 'Motion to Strike Affirmative Defense’ within one week after the summary judgment motion was filed.
“The language of Rule 8(c) is mandatory. This court has held:
“ ‘[An affirmative defense] is required to be specially pleaded under Rule 8(c). See Nash v. Vann, 390 So.2d 301, 303 (Ala.Civ.App.1980). Under the Federal Rules of Civil Procedure, after which our rules are modeled, the consequences of a party’s failure to plead an affirmative defense have been explained as follows:
“ ‘ “If an affirmative defense is not pleaded it is waived to the extent that the party who should have pleaded the affirmative defense may not introduce evidence in support thereof, unless the adverse party makes no objection in which case the issues are enlarged, or unless an amendment to set forth the affirmative defense is properly made.”
“ ‘2A J. Moore, Federal Practice § 8.27[3] at 8-251 (2d Ed.1948). See Funding Systems Leasing Corporation v. Pugh, 530 F.2d 91 (5th Cir.1976).’
“Smith v. Combustion Resources Engineering, 431 So.2d 1249 (Ala.1983). See, also, Columbia Engineering International, Ltd. v. Espey, 429 So.2d 955 (Ala.1983).
“It is clear that Bechtel made timely objection to the reliance on the affirmative defense in the motion for summary judgment, and equally clear that an amendment to the pleading to set forth the defense was not made. For this reason, the court erred in granting the summary judgment based on the defense.
“Because of the posture of the case, we do not find it appropriate at this time to discuss the evidentiary question. Likewise, we do not intend by our decision to intimate an opinion as to whether the trial judge should, in the exercise of his discretion, allow the defendant’s pleading to be amended following remand.”

451 So.2d at 795-96.

We similarly find it necessary to reverse the summary judgment for the hotel and to remand this cause. Like the supreme court in Bechtel, supra, we also do not express an opinion as to whether the trial court should exercise its discretion to allow the hotel to file an amended answer on remand.

REVERSED AND REMANDED.

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


text:
    David L. CROSS v. Christa W. CROSS.
    2010572.
    Court of Civil Appeals of Alabama.
    Oct. 25, 2002.
    Rehearing Denied Jan. 17, 2003.
    Norman Bradley, Jr., Huntsville, for appellant.
    Christa W. Cross, pro se.
   CRAWLEY, Judge.

David L. Cross (“the husband”) appeals from- a judgment divorcing him and Christa W. Cross (“the wife”). The parties were married in 1997, but they never resided together. They maintained separate apartments, separate bank accounts, purchased no property together, and incurred no debts together. They had no children.

The record, which is extremely sparse, indicates that, at the time of trial in September 2001, the husband, who was 34 years old, was employed as a system administrator for Computer Sciences Corporation, earning $65,000 annually. The husband testified that he did not want a divorce. He said that he thought the parties could work out their problems. The husband testified that, at the beginning of the marriage, he would spend the night with the wife in her apartment and then return to his apartment in the morning to change clothes and get ready for work. That arrangement, however, eventually ended. According to the husband:

“I had some sleeping problems, and because of those sleeping problems it was interrupting her sleep. And because of those interruptions she was not getting the proper amount of sleep each night and it was causing a problem to her health.”

The wife, a 36-year-old college graduate, was unemployed at the time of trial. Until two months before trial, she had been a temporary employee at Adecco TAD, but she was laid off in July 2001.

Other than wedding gifts and an album of wedding photographs, the parties had no marital property. The husband testified that if the court granted the parties a divorce, he would like to be awarded the wedding gifts received from his family and friends, unless that meant that sets of dishes or flatware would have to be broken up. The husband acknowledged that he did not have an inventory of the wedding gifts. When he was asked to describe the wedding gifts, he responded:

“A. Some of them were things like plates and forks, and there were— I’m sorry.
“Q. [By the husband’s counsel]: Well, was there anything big like a car or refrigerator?
“A. No, nothing big like that.”

The trial court’s judgment included no written findings of fact. It ordered the husband to pay the wife an attorney fee of $1,450. It awarded the husband “the wedding gifts located at his parents’ home as well as the wedding album.” The trial court awarded the wife “the wedding gifts located at her parents’ home.” The husband argues that the trial court’s division of marital property was inequitable because the uncontroverted testimony at trial established that all the wedding gifts were at the home of the wife’s parents.

The husband filed a postjudgment motion, raising the following issues: (1) whether the judgment divorcing the parties on the grounds of incompatibility was supported by the evidence presented at trial; (2) whether the judgment restoring the wife to the use of her former surname was erroneous because the wife did not request such relief; and (3) whether the attorney fee award was excessive. The motion did not mention the trial court’s division of marital property or bring to the trial court’s attention the claimed factual error in the location of the wedding gifts.

The general rule is that wedding gifts are marital property. See 24 Am.Jur.2d Divorce & Separation § 506 (1998).

“Although, as a matter of etiquette, wedding gifts are generally sent to the bride, no presumption as to ownership may be indulged in the case of such gifts. In determining the ownership of wedding gifts, the court must consider not only the expressed intention of the giver, but also the intention of the receiving couple.
“Gifts intended to furnish or adorn the marital residence or to be used and enjoyed jointly by the married couple should be considered the same as property purchased by the husband and wife jointly. Unless wedding gifts are appropriate only for the personal use of one of the spouses, the gifts should be deemed joint property of the parties, subject to division upon dissolution of the marriage, in the absence of a sufficient showing that the intent was that such nonpersonal gift be ‘earmarked’ for either the husband or the wife.”

24 Am.Jur.2d § 506 at 656 (footnote omitted). Cf. Scudder v. Scudder, 485 So.2d 743 (Ala.Civ.App.1986) (property given as gifts to husband and wife was jointly owned property that could be divided by court in divorce action according to the equities of the case).

We conclude that the husband has failed to preserve for review any issue regarding the division of the wedding gifts because he did not raise that issue in his post-judgment motion. The husband’s argument as to the erroneous division of the wedding gifts is essentially one of eviden-tiary insufficiency. He does not take issue with the court’s apportionment of the gifts according to whether the gifts were located at the home of the wife’s parents or the husband’s parents. He merely challenges the court’s implicit finding that some of the wedding gifts were located at the home of the husband’s parents by pointing out that the uncontroverted evidence established that all of those gifts were at the home of the wife’s parents.

In Ex parte James, 764 So.2d 557 (Ala.1999), a plurality of the Alabama Supreme Court stated that “when the trial court has made no written findings of fact in a non-jury trial, a party must move for a new trial in order to preserve for review a question relating to the sufficiency or weight of the evidence.” 764 So.2d at 559. The court explained:

“In a case tried before a jury, to preserve for appellate review a question of the sufficiency of the evidence, a party must raise that question in a Rule 50(a), Ala. R. Civ. P., motion for judgment as a matter of law, at the close of all the evidence. Barnes v. Dale, 530 So.2d 770, 776-77 (Ala.1988). This principle does not apply in a nonjury case. Seier v. Peek, 456 So.2d 1079, 1081 (Ala.1984). However, the law provides another rule for a rather unique situation. In Ex parte Vaughn, 495 So.2d 83, 87 (Ala.1986), this Court held:
“‘Rule 52(b) provides an exemption from the requirement of invoking a ruling by the trial court on the issue of evidentiary insufficiency when written findings of fact are made. The trial court’s ruling on the sufficiency of the evidence is implicit in a decree in which the trial judge is the trier of the facts. Moreover, by making written findings of fact, the trial judge has had the additional opportunity to reconsider the evidence and discover and correct any error in [a] judgment which he or she may have made upon initial review. Thus, when written findings of fact are made, they serve the same useful purpose as does an objection to the trial court’s findings, a motion to amend them, a motion for a new trial, and a motion to dismiss under Rule 41(b), ... — to permit the trial judge an opportunity to carefully review the evidence and to perfect the issues for review on appeal.’ ”

Ex parte James, 764 So.2d at 559. The judgment of the circuit court is due to be affirmed.

AFFIRMED.

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

MURDOCK, J., concurs in the result.

      . The record does not indicate the form or nature of this business.


text:
    Tonya Reynolds COTNEY and Caleb M. Reynolds v. Erica Nicole VINES. Erica Nicole Vines v. Tonya Reynolds Cotney and Caleb M. Reynolds.
    2010401.
    Court of Civil Appeals of Alabama.
    Oct. 25, 2002.
    Rehearing Denied Jan. 10, 2003.

      Jeffrey G. Tiekal and James T. Gullage of Gullage & Tiekal, L.L.P., Opelika, for appellants/cross-appellees Tonya Reynolds Cotney and Caleb M. Reynolds.
    Stanley A. Martin, Opelika, for appel-lee/cross-appellant Erica Nicole Vines.
   CRAWLEY, Judge.

Tonya Reynolds Cotney and Caleb M. Reynolds (hereinafter jointly referred to as “the plaintiffs”) appeal from the trial court’s denial of their motion for a new trial and from the trial court’s grant of a motion in limine filed by Erica Nicole Vines. Vines cross-appeals from the trial court’s denial of her motion for costs. We reverse and remand as to the plaintiffs’ appeal.

On May 19, 1999, the plaintiffs sued Vines, seeking damages for injuries they allegedly sustained as a result of an automobile accident. The plaintiffs sought compensatory damages for past and future medical expenses, past and future lost wages and income for Cotney, past and future pain and suffering, mental anguish and emotional distress, and damage to Cotney’s automobile, caused by Vines’s alleged negligence; the plaintiffs also sought punitive damages for Vines’s alleged wanton conduct in causing the accident. A jury trial on the plaintiffs’ claims began on September 17, 2001. On September 18, 2001, at the close of the plaintiffs’ case, Vines filed a motion for a directed verdict. The trial court granted Vines’s motion as to the plaintiffs’ wantonness claim, but denied it as to their negligence claim. On that same day, the jury returned a verdict in favor of the plaintiffs in the amount of $2,838.80. On September 20, 2001, the trial court entered a judgment on the jury’s verdict.

On October 17, 2001, the plaintiffs filed a motion for a new trial or, in the alternative, a motion for additur, arguing (1) that the damages the jury had awarded were inadequate and (2) that Vines had violated the trial court’s grant of a motion in limine filed by the plaintiffs when Vines introduced evidence of a separate lawsuit in which Cotney was involved. On October 19, 2001, Vines filed a motion for costs pursuant to Rule 68, Ala. R. Civ. P. Attached to that motion was a May 4, 2000, offer of judgment to the plaintiffs in the amount of $11,000, the trial court’s September 20, 2001, judgment on the jury’s verdict, an affidavit by the defendant’s counsel, and a listing of the costs incurred by Vines. On October 31, 2001, Vines filed a response to the plaintiffs’ postjudgment motion.

The trial court conducted a hearing on the plaintiffs’ postjudgment motion and Vines’s motion for costs on December 18, 2001; it denied both motions that same day. The plaintiffs and Vines filed timely notices of appeal to this court on January 24, 2002, and February 6, 2002, respectively. On appeal, the plaintiffs argue (1) that the trial court erred by denying their motion for a new trial because the jury had awarded inadequate damages and (2) that the trial court erred in granting a motion in limine filed by Vines that precluded Cotney from testifying as to the value of her vehicle both before and after the accident. In her cross-appeal, Vines argues that the trial court erred by denying her motion for costs.

We first address the plaintiffs’ argument that the trial court erred in granting a motion in limine filed by Vines that precluded Cotney from testifying as to her automobile’s reasonable market value before and after the accident. Vines’s motion in limine sought, in part, that Cotney not be permitted to testify concerning her automobile’s value because she had been unable to state its value during her deposition testimony. Vines asserts that the trial court never ruled upon her motion in limine; however, our review of the record shows that the trial court effectively granted the motion at trial when it sustained an objection made by Vines based upon the motion when Cotney was asked the amount her automobile had decreased in value as a result of the accident.

Because this issue concerns an issue of law, we review the trial court’s ruling de novo. See Ellison v. Green, 775 So.2d 831, 832 (Ala.Civ.App.2000) (“Because this appeal raises only issues of law, this court reviews the case de novo and affords no presumption of correctness to the trial court’s decision regarding the application of the law to the facts.”) (citing Crimson Indus., Inc. v. Kirkland, 736 So.2d 597 (Ala.1999)). This court has stated:

“It is well settled in this state that the measure of damages for injury to personal property is generally the difference in the reasonable market value immediately before and after the injury. Crump v. Geer Brothers, Inc., 336 So.2d 1091 (Ala.1976); Fuller v. Martin, 41 Ala.App. 160, 125 So.2d 4 (1960). The owner of property is qualified -to state his opinion as to value before and after injury. Chambers v. Burgess, 50 Ala.App. 591, 281 So.2d 643 (1972); Parker v. Muse, 47 Ala.App. 84, 250 So.2d 688 (1971).”

Sunshine Homes v. Hogan, 408 So.2d 149, 151 (Ala.Civ.App.1981).

Vines argued that Cotney should be precluded from testifying about the reasonable market value of her automobile at trial because she had been unable to state its value before the accident during her deposition testimony. We find this reasoning unpersuasive because Cotney could have educated herself and formed an opinion concerning the automobile’s value after her deposition testimony. As stated in Sunshine Homes, supra, Cotney was qualified to state her opinion as to her automobile’s value before and after the accident. This was the proper measure of her damages relating to her automobile and she should have been allowed to present her opinion to the jury. Accordingly, we reverse the trial court’s judgment and remand for it to grant Cotney a new trial and for proceedings consistent with this opinion. Our ruling as to this issue makes consideration of the remaining issues presented in the plaintiffs’ appeal and Vines’s cross-appeal unnecessary.

REVERSED AND REMANDED.

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

      . Caleb Reynolds, Cotney's son, sued by and through Cotney.


author: PITTMAN, Judge.

text:
    S.G. v. P.C.
    2010631.
    Court of Civil Appeals of Alabama.
    Nov. 8, 2002.
    Rehearing Denied Jan. 17, 2003.
    Russell C. Balch of Akridge & Balch, P.C., Auburn, for appellant.
    Mitzi L. Sears of Sears & Van Dyke, L.L.P., Opelika; and Mike Watkins, Auburn, for appellee.
   PITTMAN, Judge.

S.G. (“the mother”) appeals a trial court’s judgment modifying child custody and awarding physical custody of the children to P.C. (“the father”).

The mother gave birth to twins (“the children”) on April 28, 2000. In June 2000 the mother sued to establish paternity; following genetic testing, P.C. was determined to be the children’s biological father. The father and the mother never married, and the father is married to another woman. The trial court entered an order in October 2000 confirming the children’s paternity, granting physical custody of the children to the mother, establishing a visitation schedule for the father, and ordering the father to pay child support.

In early January 2002 the mother dropped the children off with the father’s wife in accordance with the regular visitation schedule. The mother asked the wife to be careful with one of the children because she had fallen the day before and had a bruise on her buttocks. Upon inspecting the bruise, the wife thought that it resembled a handprint, so she telephoned S.G.’s mother, who told her to call the sheriffs department. The sheriffs department referred the wife to the Lee County Department of Human Services (“DHR”). The wife reported the bruise to DHR, who conducted an investigation and eventually prepared a report determining that abuse was not indicated.

On January 11, 2002, the father filed a dependency petition with the Lee County Juvenile Court and requested custody of the children. That same day, the juvenile court entered a temporary order awarding custody to the father pending a hearing; the order set a “72-hour hearing” on the petition for January 14, 2002. The mother was not represented by counsel at the 72-hour hearing. Following the hearing, the trial court found the children to be dependent, awarded legal custody of the children to DHR, and placed them in shelter care pending the results of home evaluations on the father, the mother, and other possible caretakers. On January 15, 2002, the trial court received the results of the DHR home evaluations; DHR found both the mother’s and the father’s homes to be adequate placements for the children. At this hearing the trial court continued the children’s custody with DHR pending further investigation and awarded physical custody of the children to the father.

The trial court held a final hearing on February 11 and 13, 2002. During the two-day proceeding the father, the maternal grandmother, and the mother testified. The trial court accepted into evidence the DHR home evaluations of both the father and the mother. The trial court also accepted the DHR investigative report that showed that abuse was not indicated in the incident involving the bruise on the one child. The trial court allowed the guardian ad litem to address the court after the attorneys made their closing arguments. A detailed discussion of the facts is not necessary because, after reviewing the record, we find that the trial court applied the wrong standard when it awarded custody to the father.

At the conclusion of the hearing, the trial court made an oral ruling based on the evidence, which was presented ore ten-us. First, the trial court stated that it was using the “best interest of the children” standard as required in the dependency statute. The trial court then attempted to avoid error in its not applying Ex parte McLendon, 455 So.2d 863 (Ala.1984), by stating that even had it applied the McLendon standard, the result would be the same. Next, the trial court held that the children were dependent and quoted § 12-15-1(10), Ala.Code 1975, to support its finding of dependency. The trial court cited subsections d., f., and g. of § 12-15-1(10) to support its finding of dependency.

On appeal the mother argues that the trial court erred in failing to apply the McLendon standard and therefore erred in awarding the father custody of the children. Generally, a judgment based on ore tenus evidence is presumed correct on appeal, and that judgment will not be reversed absent an abuse of discretion or a showing that the judgment is plainly or palpably wrong. B.J.N v. P.D., 742 So.2d 1270 (Ala.Civ.App.1999). This court has consistently held:

“[W]hen a review of the record discloses that the hearing relates to custody rather than to dependency, or that the determination of dependency is only incidental to a custody determination, the trial court must apply the appropriate custody standard.”

B.S.L. v. S.E., 826 So.2d 890, 893 (Ala.Civ.App.2002). See also S.T.S. v. C.T., 746 So.2d 1017 (Ala.Civ.App.1999); C.P. v. M.K., 667 So.2d 1357 (Ala.Civ.App.1994). While the court in B.S.L. did not make a finding of dependency and the court in this case did make such a finding, a careful review of the entire record leads us to conclude that this was not a dependency action, but was instead a custody dispute between the parties.

The trial court’s October 2000 order establishing paternity gave primary physical custody to the mother with standard visitation to the father. Therefore, because there has already been an initial custody determination, we conclude that the applicable standard in this case is the custody-modification standard established in Ex parte McLendon, supra. Under this standard, a parent seeking to modify a previous custody order bears a heavier burden of proof than is required for an initial custody determination. Pursuant to McLendon,

“custody will be changed only if the parent seeking the modification proves that there has been a material change in circumstances since the prior judgment, that the child’s best interest will be materially promoted by a change of custody, and that the benefits of the change will more than offset the inherently disruptive effect caused by the change in custody.”

B.S.L. v. S.E., 826 So.2d at 893, summarizing Ex parte McLendon, 455 So.2d at 866. Rather than applying the McLendon custody-modification standard in this case, the trial court stated that it would apply the best-interest-of-the-child standard in awarding custody of the children. The evidence in the record does not support a finding of dependency that would bring the children within any subsections of § 12-15-1(10), Ala.Code 1975; therefore, we conclude that the trial court erred in failing to apply the McLendon standard. See B.S.L. v. S.E., supra; C.P. v. M.K., supra. On remand we remind the juvenile court that “[t]he evidence must be so substantial as to show an obvious and overwhelming necessity for a change [in custody].” Vick v. Vick, 688 So.2d 852, 855 (Ala.Civ.App.1997).

The mother also argues that she was denied effective assistance of counsel at trial, that her waiver of the right to counsel at the 72-hour hearing was invalid, and that her constitutional rights have been violated by the juvenile court’s judgment. We pretermit discussion of these issues because we conclude that the juvenile court erroneously treated this cause as a dependency action, rather than a custody dispute, which is the actual basis of this litigation.

REVERSED AND REMANDED.

YATES, P.J., and THOMPSON, J„ concur.

CRAWLEY and MURDOCK, JJ., concur in the result.

      . Section 12-15-60, Ala.Code 1975, required the juvenile court to hold a hearing within 72 hours of the filing of the petition.

      . Those subsections refer to a child whose home is an unfit and improper place for a child (§ 12 — 15—1 (10)d.), or who is under such improper or insufficient guardianship or control as to endanger the morals, health, or welfare of the child (§ 12 — 15—l(10)f.), or who has no proper parental care or guardianship (§ 12 — 15—1 (10)g.).


author: PER CURIAM. CRAWLEY, Judge,

text:
    Larry McCAMMON v. Lynn YOUNGBLOOD et al.
    2010193.
    Court of Civil Appeals of Alabama.
    Nov. 22, 2002.

      Larry McCammon, pro se.
    Gregory 0. Griffin, Sr., chief counsel, Steve M. Sirmon, asst. atty. gen., and Hugh Davis, deputy atty. gen., for appellee Alabama Board of Pardons and Paroles.
   On Application for Rehearing

PER CURIAM.

The opinion of September 6, 2002, is withdrawn and the following is substituted therefor.

Larry McCammon, an inmate at an Alabama correctional facility, acting pro se, filed a complaint in the Circuit Court of Montgomery County against Lynn Young-blood, Alma Berry, Louis Grimes, and the Alabama Board of Pardons and Paroles (“the Board”). In his complaint, McCam-mon alleged that the defendants had improperly caused his parole to be revoked and that they had thereby violated his civil rights. Judge Charles Price, a judge for the Montgomery Circuit Court, entered an order dismissing McCammon’s complaint against the Board and transferring, on the basis of alleged improper venue, the action to the Jefferson Circuit Court (hereinafter “the trial court”). McCammon has not appealed the dismissal of his claims against the Board.

The remaining defendants (hereinafter “the defendants”) filed a motion in the trial court seeking the dismissal of McCam-mon’s claims against them. In their motion to dismiss, the defendants explained that Youngblood was McCammon’s parole officer; that Berry was a parole officer serving as a “parole court hearing officer”; and that Grimes was, at all material times, either a “parole court hearing officer” or a member of the Board. McCammon filed an opposition to the defendants’ motion to dismiss, but he did not amend his complaint.

The trial court conducted a hearing on the motion to dismiss. The trial court refused to have McCammon transferred from prison to attend the hearing, but it ordered that McCammon would be allowed to “make his presentation by mail.” On November 14, 2001, the trial court entered a judgment granting the defendants’ motion and dismissing McCammon’s complaint. In its judgment, the trial court found that the defendants were entitled to absolute or discretionary immunity from liability on McCammon’s claims. McCam-mon, acting pro se, appealed. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala. Code 1975.

“When the sufficiency of a complaint is at issue, this Court will liberally construe the complaint in favor of stating a claim for relief. ‘Dismissals under Rule 12(b)(6) should be granted sparingly, and such a dismissal is proper only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief.’ Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986). ‘ “ ‘Where a [Rule] 12(b)(6) motion has been granted and this Court is called upon to review the dismissal of the complaint, we must examine the allegations contained therein and construe them so as to resolve all doubts concerning the sufficiency of the complaint in favor of the plaintiff.’ ” ’ Boswell v. Liberty Natl Life Ins. Co., 643 So.2d 580, 581 (Ala.1994), quoting Grant v. Butler, 590 So.2d 254, 255 (Ala.1991), quoting in turn Greene County Bd. of Educ. v. Bailey, 586 So.2d 893, 897-98 (Ala.1991).
“ ‘Unless it appears beyond reasonable doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief under some cognizable theory of law, the court should not grant a motion to dismiss a complaint.’ American Auto. Ins. Co. v. McDonald, 812 So.2d 309, 311 (Ala.2001), citing Rice v. United Ins. Co. of America, 465 So.2d 1100 (Ala.1984). In our review, we need not determine ‘whether the plaintiff will ultimately prevail, only whether he has stated a claim on which he may possibly prevail.’ Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985).”

Radenhausen v. Doss, 819 So.2d 616, 619-20 (Ala.2001).

The allegations against the defendants in McCammon’s complaint are not a model of clarity. In his complaint, McCammon asserts claims of false arrest, false imprisonment, and trespass against all of the defendants. However, in his complaint, McCammon makes no specific assertions regarding the conduct or actions of either Grimes or Berry to support the claims he asserts against those defendants. We also note that although McCammon purported to assert claims under 42 U.S.C. § 1983 against all of the defendants, he made no specific allegations against Grimes or Berry with regard to a § 1983 claim. Although the trial court granted the motion to dismiss on the basis of the defendants’ being entitled to State-agent immunity, this court may affirm a judgment that is correct, even where the trial court states an incorrect basis for that judgment. Morrison v. Franklin, 655 So.2d 964 (Ala.1995); Bama Budweiser of Montgomery, Inc. v. Anheuser-Busch, Inc., 611 So.2d 238 (Ala.1992); Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988). McCammon’s complaint contained no specific allegations against Grimes or Berry. Therefore, as to those two defendants, the complaint failed to state any claim upon which relief could be granted. See Rule 12(b)(6), Ala. R. Civ. P. Therefore, although it stated the wrong reason for its judgment as to Berry and Grimes, the trial court’s dismissal of those two defendants is due to be affirmed. Morrison v. Franklin, supra; Bama Budweiser of Montgomery, Inc. v. Anheuser-Busch, Inc., supra; Smith v. Equifax Servs., Inc., supra.

We address the remainder of McCam-mon’s arguments only to the extent that they address claims against Youngblood. McCammon alleges that Youngblood improperly charged him with using illegal drugs without first conducting a drug-screen test and alleges that all of the defendants caused him to be “illegally jailed.” McCammon also contends that Youngblood caused him to be illegally jailed, thereby knowingly violating his civil rights.

Youngblood argues that she is entitled to absolute immunity with regard to her actions related to McCammon’s claims; she cites Hughes v. Chesser, 731 F.2d 1489 (11th Cir.1984), in support of her argument. In Hughes v. Chesser, Hughes filed a complaint asserting a § 1983 claim against Chesser, a probation officer, alleging that Chesser had falsified his 'presentence report concerning Hughes. The district court determined that Chesser was entitled to absolute immunity. The United States Court of Appeals for the Eleventh Circuit affirmed, holding that Chesser had absolute immunity in submitting the presentence report, because that report was made at the direction of a court and constituted a “narrow function” of Chesser’s duties as a probation officer. Hughes v. Chesser, 731 F.2d at 1490.

In reaching its holding, the court in Hughes v. Chesser, supra, relied on Spaulding v. Nielsen, 599 F.2d 728 (5th Cir.1979). In Spaulding v. Nielsen, supra, the United States Court of Appeals for the Fifth Circuit held that a probation officer was entitled to immunity with regard to his submission of a presentence report to a court made at the direction of a court. In a footnote, the Fifth Circuit expressly limited its decision in that case to immunity for actions taken with regard to presen-tence reports, stating, “[w]e have no occasion to decide today, and do not decide, whether immunity will shield probation officers from civil liability for official activities apart from the presentence report process.” Spaulding v. Nielsen, 599 F.2d at 729 n. 2.

Further, in A.M. v. Grant, 889 F.Supp. 1495 (M.D.Ala.1995), the court refused to afford a defendant immunity under the authority of Spaulding v. Nielsen and Hughes v. Chesser. The defendant in that case had allegedly caused the juvenile plaintiff to be improperly detained in a juvenile detention facility. The court refused to extend the holdings of Spaulding v. Nielsen and Hughes v. Chesser to afford immunity under the facts alleged in that action. A.M. v. Grant, 889 F.Supp. at 1503. In reaching it decision in AM. v. Grant, the court noted that after the release of Spaulding v. Nielsen, supra, the Fifth Circuit had later, in Galvan v. Garmon, 710 F.2d 214, 215 (5th Cir.1983), denied absolute immunity to a probation officer who had mistakenly caused the arrest and incarceration of a person on parole.

In Galvan v. Garmon, supra, the Fifth Circuit distinguished the facts of that case from those of Spaulding v. Nielsen, supra, by stating “[wjhereas in Spaulding the probation officer was acting at the direction of the court during the presentence report process, in the immediate case the probation officer acted at her own initiative and at a different phase of the criminal process less intimately associated with the judiciary.” Galvan v. Garmon, 710 F.2d at 215. Therefore, the court held, the facts of the case did not “present the sort of ‘special functions or constitutional status [which] requires complete protection from suit.’ ” Id. at 216 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The court concluded that the defendant probation officer was entitled to only qualified immunity under the facts of the case.

Hughes v. Chesser and Spaulding v. Nielsen afford absolute immunity to a probation officer’s filing of a presentence report. Youngblood has not directed this court to any case that has extended that absolute immunity to fact situations in which a parole officer’s actions went beyond submitting, “at the direction of [a] court,” a presentence report. See Hughes v. Chesser, 731 F.2d at 1490. In both Galvan v. Garmon, supra, and A.M. v. Grant, supra, both of which involved conduct more similar to that alleged in this case than the conduct described in Hughes v. Chesser and Spaulding v. Nielsen, the courts declined to extend absolute immunity to the defendants in those actions. Given the allegations against Youngblood contained in McCammon’s complaint and the foregoing authority, we must conclude that Youngblood is not entitled to absolute immunity under the authority of Hughes v. Chesser or Spaulding v. Nielsen. We next address whether Youngblood is entitled to qualified, or State-agent, immunity.

We first address McCammon’s tort claims against Youngblood. In Ex parte Cranman, 792 So.2d 392 (Ala.2000), a plurality of our supreme court set forth a new test for determining when a State employee or agent who is sued in his or her individual capacity on a tort claim is entitled to “State-agent immunity.” Some instances in which a State agent “shall” be immune from civil liability in his or her individual capacity include situations in which the State agent “exercis[es] judgment in the enforcement of the criminal laws of the State,” and in which the State agent “exercis[es] judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners.” Ex parte Cranman, 792 So.2d at 405. In formulating that test, our supreme court also explicitly defined situations in which a State agent is not entitled to State-agent immunity:

“[A] State agent shall not be immune from civil liability in his or her personal capacity
“(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
“(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

Ex parte Cranman, 792 So.2d at 405. In Ex parte Butts, 775 So.2d 173 (Ala.2000), a majority of our supreme court adopted the State-agent immunity test set forth in Ex parte Cranman, supra.

McCammon’s complaint alleged that Youngblood’s actions improperly caused his probation to be revoked. In his complaint, McCammon alleges that he agreed to take a urine-analysis test as a condition of his probation. McCammon contends that after agreeing to take the test, he had a conversation with Young-blood and that, thereafter, Youngblood placed him in detention without allowing him to take the required test. McCam-mon alleges that Youngblood’s actions caused his probation to be revoked and that she failed to provide proper evidence to support that revocation. He alleged claims of false arrest, false imprisonment, and trespass against Youngblood.

After examining the entirety of McCam-mon’s state-law claims against Young-blood, we must conclude that the trial court’s dismissal of those claims was not appropriate. McCammon’s complaint sufficiently set forth claims upon which there is a possibility he could prevail. Radenhausen v. Doss, supra.

“A dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. A dismissal is different from a summary judgment, and more difficult to obtain than a summary judgment. To get a summary judgment, the movant must show that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law.”

Green v. Nemish, 652 So.2d 243, 244 (Ala.1994) (citations omitted). In so holding, we do not comment on the merits of McCammon’s state-law claims against Youngblood or exclude the possibility that those claims will be disposed of on a motion for a summary judgment; we merely conclude that, given the nature of McCam-mon’s claims, the dismissal of those claims at this stage of the litigation was premature.

We next address McCammon’s claim that Youngblood’s actions violated his civil rights under 42 U.S.C. § 1983.

“In deciding whether a public official ... is entitled to qualified immunity in a § 1983 action, this Court employs the following two-step analysis:
“ ‘ “1) The defendant public official must first prove that ‘he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.’
“ ‘ “2) Once the defendant public official satisfies his burden of moving forward with the evidence, the burden shifts to the plaintiff to show lack of good faith on the defendant’s part. This burden is met by proof demonstrating that the defendant public official’s actions ‘violated clearly established constitutional law.’ ” ’
“[Roden v. Wright,] 646 So.2d [605,] 610 [ (Ala.1994) ], quoting Rich v. Dollar, 841 F.2d 1558, 1563-64 (11th Cir.1988). (Citations omitted.) In Point Properties, [Inc.] v. Anderson, [584 So.2d 1332,] 1338-39 [ (Ala.1991) ], [our supreme court], quoting Stewart v. Baldwin County Board of Education, 908 F.2d 1499, 1503 (11th Cir.1990), explained that ‘ “the relevant question ... is whether a reasonable official could have believed his or her actions were lawful in light of clearly established law and the information possessed by the official at the time the conduct occurred.” ’ Th[e] Court went on to note that ‘ “the qualified immunity defense provides ample protection to all except the plainly incompetent or those who knowingly violate the law.” ’ 584 So.2d at 1339, quoting Stewart, supra.

Couch v. City of Sheffield, 708 So.2d 144, 155 (Ala.1998). In interpreting the above-quoted test, this court has stated that “[l]i-ability does not attach to a government agent unless his ‘act is so obviously wrong, in the light of pre-existing law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing.’ ” Caldwell v. Brogden, 678 So.2d 1148, 1151 (Ala.Civ.App.1996) (quoting Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1149 (11th Cir.1994)).

It is undisputed that, at the time of the alleged incidents that form the basis of McCammon’s action, Youngblood was acting within her discretionary authority. See Couch v. City of Sheffield, 708 So.2d at 155. With regard to his § 1983 claim, McCammon has alleged that Youngblood “knew or should have known” that her actions constituted a violation of his civil rights. See Id. Although this court does not comment on the merits of McCam-mon’s § 1983 claim against Youngblood and cannot say whether McCammon will ultimately prevail on his § 1983 claim, we must conclude that as to that claim, McCammon has alleged a set of facts upon which it is possible that he might prevail. See Radenhausen v. Doss, supra; Green v. Newish, supra. We must conclude that the trial court erred in dismissing McCam-mon’s § 1983 claim against Youngblood. Therefore, we must reverse the trial court’s dismissal of McCammon’s claims against Youngblood and remand this action to the trial court for further proceedings.

OPINION OF SEPTEMBER 6, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

CRAWLEY, J., concurs specially.

MURDOCK, J., concurs in the result.

CRAWLEY, Judge,

concurring specially.

I concur in the affirmance of the dismissal of McCammon’s state-law tort and § 1983 claims against Berry and Grimes. I also concur in the reversal of the dismissal of his state-law tort and § 1983 claims against Youngblood; however, I note that the reversal of the dismissal of McCammon’s state-law tort claims against Youngblood is further supported by the principles outlined by our supreme court in Phillips v. Thomas, 555 So.2d 81, 86 (Ala.1989). See also Ex parte Butts, 775 So.2d 173, 177 & 178 (Ala.2000).

      . Youngblood states that her actions included "submitting a written report to the Board [of Pardons & Paroles] (wherein she accused McCammon of violating parole), ... issuing a writ of arrest ..., and ... testifying before the court [that ultimately revoked McCammon’s parole].”


text:
    Bernard CROWE v. INTERSTATE SAFETY SYSTEMS, INC., and Ron Summerville.
    2010647.
    Court of Civil Appeals of Alabama.
    Nov. 22, 2002.

      Tommie Wilson, Pell City, for appellant.
    Ray Lowery, Pell City, for appellee.
   CRAWLEY, Judge.

Bernard Crowe appeals from the trial court’s order directing him to surrender a Caterpillar brand motor scraper (“the scraper”) or to pay its value of $10,000, and to pay Interstate Safety Systems, Inc. (“ISS”), and Ron Summerville (hereinafter collectively referred to as “the plaintiffs”) $4,000 for wrongful detention of the scraper. We affirm and award damages to the plaintiffs pursuant to Rule 38, Ala. R.App. P.

Summerville, who worked in highway construction, entered into an agreement with Joseph Lauch pursuant to which Summerville would store the scraper on Lauch’s property for $200 per month. Summerville eventually stopped making payments to Lauch. Lauch subsequently gave Crowe possession of the scraper for $3,250, the amount of the storage fees that had allegedly accumulated on the scraper. Crowe made some repairs to the scraper while it was in his possession. A dispute arose between Summerville and Crowe when Crowe refused to return the scraper to Summerville without payment.

On May 30, 2001, ISS sued Crowe seeking possession of the scraper and damages for Crowe’s alleged wrongful detention of the scraper. On July 5, 2001, Crowe filed a motion to dismiss, arguing, in part, that ISS was not qualified to do business in Alabama. On July 10, 2001, ISS amended its complaint to add Summerville, identified as the sole stockholder of ISS, as a plaintiff. On December 10, 2001, Crowe filed a motion for a summary judgment with attached exhibits. On that same day, the trial court denied Crowe’s motion for a summary judgment and conducted a bench trial on the plaintiffs’ claims.

On December 21, 2001, the trial court entered an order directing Crowe to surrender the scraper to the plaintiffs, or to pay $10,000, and to pay an additional $4,000 to the plaintiffs for his wrongful detention of the scraper. On January 17, 2002, Crowe filed a motion to set aside, alter, or amend the judgment, or a motion for a new trial; the trial court denied the motion on February 12, 2002. On March 25, 2002, Crowe filed a notice of appeal to this court.

On appeal, Crowe argues that the trial court erred by denying his motion to dismiss and motion for a summary judgment because, he says, ISS should not have been allowed to maintain this action because it was not qualified to do business in Alabama. Because this issue concerns an issue of law, we review the trial court’s ruling de novo. See Ellison v. Green, 775 So.2d 831, 832 (Ala.Civ.App.2000) (“Because this appeal raises only issues of law, this court reviews the case de novo and affords no presumption of correctness to the trial court’s decision regarding the application of the law to the facts.”) (citing Crimson Indus., Inc. v. Kirkland, 736 So.2d 597 (Ala.1999)).

In support of his argument, Crowe relies on three separate sections of the Alabama Code. He first cites § 10-3A-186(a) and § 10-2B-15.01(a), Ala.Code 1975, to argue that “foreign corporations must obtain a certificate of authority in order to transact business in Alabama or enter into binding contracts.” He also relies on § 10-2B-15.02(a), which states, in pertinent part:

“(a) A foreign corporation transacting business in this state without a certificate of authority ... may not maintain a proceeding in this state without a certificate of authority. All contracts or agreements made or entered into in this state by foreign corporations prior to obtaining a certificate of authority to transact business in this state shall be held void at the action of the foreign corporation or by any person claiming through or under the foreign corporation by virtue of the contract or agreement; but nothing in this section shall abrogate the equitable rule that he who seeks equity must do equity.”

Crowe’s argument is not well-taken. In interpreting the predecessor to § 10-2B-15.02, this court held that a foreign corporation not qualified to do business in this state can sue in detinue in an Alabama court. Boles v. Midland Guardian Co., 410 So.2d 82 (Ala.Civ.App.1982). In Boles, however, this court concluded that such an action could not be maintained when its “proof necessitates reliance upon a contract either made in Alabama or to be performed in Alabama.” 410 So.2d at 83. See also Freeman Webb Invs., Inc. v. Hale, 536 So.2d 30, 31 (Ala.1988) (“ ‘actions ex delicto by nonqualified foreign corporations are not prohibited in the courts of Alabama’ ”) (quoting Shiloh Constr. Co. v. Mercury Constr. Corp., 392 So.2d 809, 813 (Ala.1980)). There is no contract on which the plaintiffs relied in filing this detinue action. Therefore, the trial court did not err in allowing the plaintiffs to proceed with this case.

The plaintiffs have sought damages pursuant to Rule 38, Ala. R.App. P., arguing that Crowe has filed a frivolous appeal. We find that the grounds asserted in Crowe’s appeal are inapplicable to this case and are indeed frivolous. One of the Code sections Crowe cites, § 10-3A-186(a), applies only to nonprofit foreign corporations. There is no evidence in the record indicating that ISS was a nonprofit corporation. Further, the record contains no factual support for Crowe’s argument that the plaintiffs could not bring an action based upon the prohibition of uncertified foreign corporations’ suing on contracts. There was no contract between the plaintiffs and Crowe. If Crowe had reviewed the annotations to § 10-2B-15.02, he would have found reference to the cases cited herein, which support the trial court’s judgment. Boles, supra, and Freeman Webb Investments, supra.

“The grant or denial of damages pursuant to Rule 38, [Ala.] R.App. P., is within the sound discretion of the appellate court. City of Birmingham v. Wright, 379 So.2d 1264 (Ala.1980).
“ ‘We are burdened with too many meritorious appeals brought by able and conscientious counsel, to permit our time to be consumed by frivolous appeals, totally lacking in merit. It is neither fair to this court, appellee and counsel, nor to those cases from which our attention is diverted.’
“Hutson v. Hutson, 351 So.2d 588, 591 (Ala.Civ.App.1977).”

Fox v. Murrell, 622 So.2d 386, 388 (Ala.Civ.App.1993). The plaintiffs’ request for damages against Crowe is granted in the amount of $500.

AFFIRMED.

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

MURDOCK, J., concurs in the result.

      . ISS's complaint stated that it was a foreign corporation qualified to do business in Alabama. Crowe attached certified statements from the secretaries of state of both Alabama and Texas showing that ISS was not authorized to do business in either state. The Alabama Secretary of State certified "that the records do disclose that the certificate of authority to transact business in Alabama of said Interstate Safety Systems,* Inc., was revoked on August 11, 1992.”

      . Crowe quotes this section for the following proposition:
      "(a) All contracts or agreements made or entered into in Alabama by foreign corporations which have not obtained a certificate of authority to conduct affairs in Alabama shall be held void at the action of such foreign corporation or any person claiming through or under such foreign corporation by virtue of said void contract or agreement;

      . This section states:
      "(a) A foreign corporation may not transact business in this state until it obtains a certificate of authority from the Secretary of State.”