author: HOUSTON, Justice.

text:
    Ex parte McFADDEN ENGINEERING, INC., and A. Frank McFadden. Ex parte SJ&L, Inc., Michael B. Tew, and North American Specialty Insurance Company. (In re Town of Millry et al. v. McFadden Engineering, Inc., et al.)
    1010815 and 1010832.
    Supreme Court of Alabama.
    May 17, 2002.

      Philip H. Partridge, Thomas H. Nolan, Jr., and Winston R. Grow of Brown, Hud-gens, P.C., Mobile, for petitioners McFadden Engineering and A. Frank McFadden.
    Lawrence J. Seiter of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile; William A. Mudd of Hall, Conerly, Mudd & Bolvig, P.C., Birmingham; George M. Zoghby of Clark, Scott & Sullivan, Mobile; and Kenneth A. Hitson, Jr., of Nix, Holtsford, Gilliland, Lyons & Higgins, P.C., Daphne, for petitioners Michael B. Tew and SJ&L, Inc.
    L. Daniel Mims, Mobile, for petitioner North American Specialty Insurance Company.
    Joseph C. McCorquodale III and Christopher A. Bailey of McCorquodale & McCorquodale, Jackson; and C. Robert Montgomery, Chatom, for respondents.
   HOUSTON, Justice.

Petitioners McFadden Engineering, Inc., A. Frank McFadden, SJ&L, Inc., Michael B. Tew, and North American Specialty Insurance Company (hereinafter collectively referred to as “the petitioners”) petition for a writ of mandamus directing the trial court to vacate its order refusing to allow the petitioners to conduct, or adequate time in which to conduct, certain discovery. We grant the petitions in part and deny the petitions in part.

I. Facts

This case began on May 6, 1996, when the Town of Millry, Alabama, sued' the petitioners asserting claims of fraud, breach of warranty, negligence, and wantonness stemming from the petitioners’ design and construction of Millry’s expansion of its existing sewer system (“the expansion system”). The expansion system, which was designed by McFadden Engineering in 1993 and constructed and installed by SJ&L, Inc., during the years 1993-1994, included installation of, among other things, main sewer lines, service lines, and individual septic tanks at certain Millry households. However, the connection of those septic tanks to the individual households was left to others to complete; SJ&L, Inc., was not responsible for connecting the tanks to the households. Those connections were completed by August 1994; subsequently, certain problems developed, including stoppages, overflows, and venting of sewer gases.

On January 11, 2000, three and a half years after litigation began, 29 Millry residents filed a motion to intervene as individual plaintiffs. The trial court granted that motion on February 14, 2000. On April 17, 2000, 87 additional residents filed a similar motion to intervene. The last motion to intervene was filed by three Millry homeowners on May 22, 2000. The trial court granted those motions on June 9, 2000.

In sum, after three and a half years of litigation, and over the petitioners’ objections, the trial court added 119 individual plaintiffs to the case (hereinafter “the in-tervenor plaintiffs”). Along with the new plaintiffs came new claims. In their inter-venors’ complaints, the intervenor plaintiffs adopted some of Milky's claims against the petitioners, but also added claims alleging nuisance, trespass, and the tort of outrage. Not surprisingly, the in-tervenor plaintiffs’ claims alleged various individualized damages not only to their properties but also to their mental and emotional states.

Beginning in March 2000, and continuing through late November 2000, the petitioners sent various interrogatories and requests for production to each of the in-tervenor plaintiffs, in an attempt to assess, among other things: (1) the specific damages each intervenor plaintiff was claiming, (2) any problems that each intervenor plaintiff had had with the plumbing or septic system before the expansion system was installed; (3) any repairs that each intervenor plaintiff had made to his or her individual plumbing or septic system, and (4) the identification of any expert witnesses who would testify for the intervenor plaintiffs. However, the intervenor plaintiffs’ responses arrived in a less-than-expedient fashion, to say the least.

For example, on September 1, 2000, after no responses had been received to the interrogatories and requests for production sent by McFadden Engineering, Inc., and A. Frank McFadden (hereinafter collectively referred to as “the McFadden defendants”) on March 13, 2000, the McFadden defendants filed a motion to compel, which the trial court granted on September 12. Subsequently, on or about October 2, 2000, some of the intervenor plaintiffs submitted responses; however, these responses were incomplete and unresponsive, and they were not signed or notarized. Based on the intervenor plaintiffs’ failure and/or refusal to “fully, completely, and individually” respond to discovery (as they had been ordered to do by the trial court), the McFadden defendants filed a second motion to compel on November 7, 2000, which was granted on the same day.

Approximately one month later, on December 6, 2000, after having received nothing in response to the trial court’s order granting the second motion to compel, the McFadden defendants filed a motion asking the trial court to dismiss the intervenors’ complaint and/or to sanction the intervenor plaintiffs for their failure to comply with the trial court’s orders compelling discovery responses. Finally, beginning on December 21, 2000, and continuing through May 4, 2001, the interve-nor plaintiffs gradually submitted responses to the petitioners. While some of the responses were still somewhat incomplete, they were apparently sufficient to provide a foundation based on which the petitioners could prepare to take the depositions of each intervenor plaintiff.. Accordingly, the depositions of 87 of the in-tervenor plaintiffs were taken between April 2001 and December 2001. Additionally, in November and December 2001, the plaintiffs took the depositions of the petitioners and their experts.

The depositions of the intervenor plaintiffs revealed particular facts surrounding their individualized allegations, which were, not surprisingly, not sufficiently known until those depositions were taken. For example, as to their claims of physical injury, the depositions revealed which doctors had treated them, and also revealed that some of the intervenor plaintiffs were claiming that they have been caused to suffer specific maladies such as headaches and/or nausea. Similarly, with regard to their claims of damage to personal and real properties, the depositions revealed such specifics as: (1) what damage had been incurred (such as damage to bathrooms, kitchen floors, and yards), (2) when the damage began to occur, and (3) the details of the party’s individual plumbing and electrical systems. Also, the deposed intervenor plaintiffs testified that they did not know how much, if any, the alleged wrongful acts had caused the value of then-property to depreciate, and that no appraisals of their residences had been performed.

On December 14, 2001, the plaintiffs filed supplemental responses to interrogatories and requests for production, identifying 22 categories of individuals who may have knowledge of the facts surrounding the plaintiffs’ claims. These categories included several individuals who had not yet been deposed. Also identified for the first time in the supplemental responses was an expert witness, Silas Williams, who was to testify as to the values of the intervenor plaintiffs’ properties and the alleged diminution of those values. Accordingly, beginning on the same day and continuing through December 28, 2001, the petitioners began receiving Williams’s appraisal reports of the intervenor plaintiffs’ residences.

To counter this new information, the petitioners retained their own expert property appraisers to examine the plaintiffs’ properties and prepare their own appraisal reports. Additionally, having just completed taking the depositions of most of the intervenor plaintiffs as described above, the petitioners also sought to inspect the homes of each intervenor plaintiff in order to investigate the specific damage claims made by each intervenor plaintiff during deposition and the possible causes for that damage and to examine each intervenor plaintiffs particular electrical and plumbing connection to the expansion system. However, in a letter dated January 11, 2002, counsel for the in-tervenor plaintiffs refused to give permission to the petitioners to perform those inspections, stating that the inspections were not necessary and that the petitioners had waited too close to the date of trial — which had been set for February 11, 2002 — to seek the inspections.

After intervenor plaintiffs’ counsel denied permission for the inspections, the petitioners on January 14, 2002, jointly filed a “Motion for Immediate Entry Upon Land for Inspection.” That motion stated:

“The intervenor plaintiffs are all residents of the Town of Millry who complain about the functioning of the expanded sewer system in Millry. When the expansion was installed in 1994, a sewage holding tank was placed in the ground adjacent to each residence or other structure to be serviced by the system. Most tanks also had an electric pump installed in them.
“Although the tanks and the main lines were installed by SJ&L, Inc., the electrical and plumbing connections between each resident’s sewage tank and each resident’s home were [not] the responsibility of SJ&L, Inc., and were installed by other contractors or by the individual residents themselves. It is, therefore, the [petitioners’] intent to inspect each individual residence to determine whether the condition of the electrical service and plumbing in and around the intervenor plaintiffs’ property may be contributing to any problems of which the intervenor plaintiffs are complaining.
“[Petitioners] will be accompanied by Owen S. Posey, P.E., an expert who has been retained by [the petitioners] for these inspections. [The petitioners] will need to enter the property of each inter-venor plaintiff to inspect the tank of the property, to inspect the pump in each tank, if there is a pump, and to inspect the plumbing from the house to the tank. [The petitioners] will also need to enter the residence or building to inspect the condition of the household plumbing. [The petitioners] further intend to make photographic documentation of their inspections.
“The trial of this matter is set for February 11, 2002; therefore, it is necessary that [the petitioners] be given immediate access to the property of the intervenor plaintiffs in order to have any chance of completing the inspections pri- or to trial.”

The petitioners’ motion further summarized their need for the inspections as follows:

“4. Despite the plaintiffs’ counsel’s contentions otherwise, these [petitioners] have not been given an adequate opportunity to inspect the system and the individual residences.
“5. First, no inspection of the system or the homes the subject of this action has been conducted since the intervenor plaintiffs were made a party to this action in January, 2001. The last inspection of the system would have been made sometime in 1998. Those prior inspections did not primarily involve the plumbing and electrical system of each residence, rather the inspections focused on the sewer system installed by SJ&L (including the tank on the properties and the service lines from the main line to the tanks.) A few homes were entered during these inspections to ascertain the residents’ problems but the vast majority of the intervenor plaintiffs’ homes were never inspected.
“6. Moreover, even though inspections have been conducted in the past, at best, no more than half of the intervenor plaintiffs’ properties and only a few homes themselves, have been inspected by the [petitioners]. In fact, these [petitioners] were not even made aware of the [sic] many of the alleged complaints of these intervenor plaintiffs until the Motion to Intervene was filed.
“7. The intervenor plaintiffs are now claiming damages for injury to various aspects of their homes, including damage to bathroom and kitchen floors and damage to various yards. These aspects of the homes would not have been inspected previously as they were not an issue in this action which previously only involved the Town of Millry.
“8. Between April and December 14, 2001, the [petitioners] have been taking the depositions of the intervenor plaintiffs.
“9. Until these [petitioners] were aware of the specific problems of which each intervenor plaintiff complained through these depositions, an inspection of these homes prior to December 14, 2001, would have been futile.
“10. Over the past month, the [petitioners] have been receiving various appraisal reports of the intervenor plaintiffs’ homes conducted by Silas Williams. Representative copies of those appraisals are attached hereto as Exhibits ‘B’ and ‘C.’ These appraisals contain various statements of fact regarding these properties and statements regarding the condition of these homes. These [petitioners] should be entitled to inspect these homes to verify the condition of the homes and to verify that these statements of fact are correct.
“11. Moreover, the McFadden defendants have retained an appraisal expert who is currently reviewing the appraisals produced by plaintiffs’ counsel. As part of his rendering of his opinions, it would, of course, be necessary to inspect at least some of the intervenor plaintiffs’ properties.
“12. As set out in these [petitioners’] Motion to Compel and Request for Mediation, the [petitioners] have been diligent in the conducting of discovery with almost 100 depositions having been taken in the last eight months.”

Essentially, therefore, the petitioners’ motion requested: (1) permission to inspect the intervenor plaintiffs’ electrical and plumbing connections and the claimed damaged areas of their residences; (2) permission to inspect the intervenor plaintiffs’ properties in order to perform appraisals, and (3) adequate time to perform the various inspections and to complete other still outstanding discovery.

On January 16, following a hearing on the motion, the trial court ruled as follows. The court denied the petitioners’ request to enter and inspect the intervenor plaintiffs’ properties as to all purposes except appraisal purposes. However, the court also denied the petitioners’ motions for continuances, meaning that the petitioners would have less than a month to complete the appraisals — or any other discovery matters- — -if the petitioners wanted to have them available before trial, which was set for February 11. The petitioners now seek a writ of mandamus directing the trial court to vacate its January 16, 2002, order and to allow all of the requested inspections as well as additional time to complete these inspections and the remaining discovery.

II. Standard of Review

We recently summarized our standards regarding review of a trial court’s discovery order:

“Discovery requests are governed by Rule 26, Ala. R. Civ. P. However, ‘[discovery matters are within the trial court’s sound discretion, and its ruling on those matters will not be reversed absent a showing of abuse of discretion and substantial harm to the appellant.’ Wolff v. Colonial Bank, 612 So.2d 1146, 1146 (Ala.1992) (citations omitted); see also Ex parte Hicks, 727 So.2d 23, 33 (Maddox, J., dissenting). The trial court’s discretion is not unlimited:
“ ‘[T]he standard this Court will apply in reviewing [the trial judge’s] actions on a petition for a writ of mandamus is whether there has been a clear showing that the trial court abused its discretion. Thus, a writ of mandamus directing the trial judge to set aside his ruling on a discovery matter will issue only where it is clear that the trial judge has abused his discretion.’
“Ex parte Clarke, 582 So.2d 1064, 1067 (Ala.1991).
“A petition for the writ of mandamus is the proper method for presenting the question whether a trial judge has abused his discretion in ordering discovery. Ex parte Allstate Ins. Co., 401 So.2d 749, 751 (Ala.1981). The writ of mandamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Ex parte Horton, 711 So.2d 979, 983 (Ala.1998) (citing Ex parte United Serv. Stations, Inc., 628 So.2d 501 (Ala.1993)); Ex parte Alfab, Inc., 586 So.2d 889 (Ala.1991) (citing Martin v. Loeb & Co., 349 So.2d 9 (Ala.1977)). Thus, the writ of mandamus will not issue to direct the trial court to change its discovery order unless this Court determines, ‘based on all the facts that were before the trial court, that the trial court clearly abused its discretion.’ Ex parte Horton, 711 So.2d at 983.”

Ex parte Nat’l Sec. Ins. Co., 773 So.2d 461, 464 (Ala.2000). Therefore, the issue in this case is whether the trial court clearly abused its discretion in refusing to allow the petitioners to conduct, or adequate time to conduct, the requested discovery described above.

With respect to the trial court’s denial of the petitioners’ request to inspect the in-tervenor plaintiffs’ residences for purposes of inspecting the plumbing and electrical connections and verifying the plaintiffs’ claims of damage, we hold that the trial court clearly abused its discretion, and we issue the writ. As to the trial court’s denial of additional time within which to complete discovery, we hold that that issue is moot and, as to the petitioners’ request for additional time, we deny the petitions.

III. Analysis

The discretion enjoyed by a trial court regarding discovery matters is certainly broad, but the boundaries of that discretion are necessarily governed by the various burdens placed on the parties by one another and by the orders of the trial court itself. Accordingly, a trial court’s discretion with regard to a defendant’s discovery request cannot be examined in a vacuum; rather, it must be viewed in the context of the plaintiffs claims, including the number, specificity, and timing of those claims. Without some indication of contemptuous behavior or lack of diligence by a defendant, a trial court virtually never has the discretion to bar a defendant from discovery relating to specific, material facts a plaintiff has alleged against a defendant. See Ex parte Dumas, 778 So.2d 798, 801 (Ala.2000) (noting that when a plaintiff puts a particular fact in issue, the defendant’s right' to discovery is extremely broad and that “ ‘[a] trial judge, who has broad discretion in this area, should nevertheless incline toward permitting the broadest discovery ....’”) (quoting Ex parte AMI West Alabama Gen. Hosp., 582 So.2d 484, 486 (Ala.1991)).

A. The petitioners’ request to inspect plumbing and electrical connections to the expansion system and to examine alleged physical damage.

The plaintiffs contend that the petitioners could and should have sought to inspect the intervenor plaintiffs’ plumbing and electrical connections to the expansion system and to examine the alleged physical damage to the intervenor plaintiffs’ residences much earlier than January 2002. For example, the plaintiffs state that the petitioners “were aware of the complaints concerning problems with the sanitary sewer system from the time the last home was connected to the system in August of 1994,” and that “[t]he Petitioners had almost unlimited and unfettered access to the individual plaintiffs’ residences to inspect the sewer line and connection to the individual residences from 1994 through approximately June of 1998. (Plaintiffs’ brief at 58). Apparently, the plaintiffs’ argument is that the petitioners should have anticipated the specific damage the intervenor plaintiffs would assert and should have inspected the residences before taking the depositions of those plaintiffs.

However, this argument ignores both the nature of the adversarial process and the realities of the discovery process. In our judicial system, the burden of proof is always on the party bringing the allegations. In a civil case, because the plaintiff brings the allegations and therefore carries the burden of proof, the defendant need not “guess” or “speculate” as to what evidence of damage the defendant should seek to counter. Instead, the defendant’s course of discovery “follows” the plaintiffs evidence of damage, which is identified through the discovery process.

Obviously, to say that the petitioners were aware of general “problems” is not to say that they were aware of the specific damage the petitioners would be charged with having caused. Given the fact that pleadings are generally stated in very broad terms, see Ala. R. Civ. P. 8(a) (requiring only “a short and plain statement of the claim showing that the pleader is entitled to relief’), the very purpose of discovery (especially the taking of depositions) is to give the parties an opportunity to clearly define the damage being asserted, which provides the party being charged with wrongdoing fair notice of the specific “wrongs” he must then be prepared to counter at or before trial:

“ ‘Generally speaking, the purpose of modern discovery is to assist the administration of justice, to aid a party in preparing and presenting his case or his defense, to advance the function of a trial in ascertaining truth, and to accelerate the disposition of suits. Beyond this, the rules for discovery are designed to eliminate, as far as possible, concealment and surprise in the trial of lawsuits to the end that judgments be rested upon the real merits of cases and not upon the skill and maneuvering of counsel.’ 23 Am.Jur.2d, Depositions and Discovery, § 155 (1965). Stated otherwise, the rules seek to ‘make a trial less a game of blind man’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.’ United States v. Procter and Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958); Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947).”

Ex parte Dorsey Trailers, Inc., 397 So.2d 98, 103 (Ala.1981) (also stating that “[a] defendant is entitled to the factual basis of the plaintiffs claim and all facts going to prove or disprove defendant’s defense,” 397 So.2d at 104); see also Cone Builders, Inc. v. Kulesus, 585 So.2d 1284, 1289 (Ala.1991) (stating that “[ujndeniably, the purpose of the discovery process is to avoid unfair surprise at the trial”).

It is true that, as the plaintiffs note, the petitioners had performed some “inspections” of some of the intervenor plaintiffs’ residences before 1998. However, there are several reasons that this fact does not bolster the plaintiffs’ arguments. First, those inspections, made at Millry’s request, were made before any of the residents whose homes were inspected became plaintiffs. Therefore, the petitioners had no chance, before the inspections, to identify all of the damage that would need to be looked for and verified. Also, because those inspections were completed at least two years before any of the Millry residents intervened, further inspections would still be needed to determine what damage the residents were claiming at the time they became plaintiffs.

Second, the inspections were generally limited, focusing mainly on the parts, such as the holding tanks and the service lines from the tanks to the main sewer lines, associated with the work actually performed by the petitioners. The inspections did not focus on the connections from the tanks to the homes, any defects in the plumbing or electrical system in the homes, or any alleged damage to the homes, although problems with those items were noted where observed.

Finally, the limited inspections were performed on less than 30 Millry residences whose owners had made complaints. The vast majority of residences owned by those who later became interve-nor plaintiffs were not inspected.

It is undisputed that the evidence sought by the petitioners through the inspections is extremely relevant, because those inspections concern precisely what the plaintiffs have alleged and must prove: causation (which requires an examination of the electrical and plumbing connections of each residence for possible causes) and damage (which requires an examination of the alleged damage to each residence). Understood properly, this evidence is similar to the evidence sought by a defendant who is seeking evidence relating to both possible alternative causes and alleged damage in a personal-injury case, in which the defendant is entitled to extremely broad discovery. See Dumas, supra, 778 So.2d at 801 (“This Court has held that when a party files a lawsuit that makes an issue of his physical condition, he waives his privacy rights in favor of the public’s interest in full disclosure.”) (citing Mull v. String, 448 So.2d 952, 954 (Ala.1984)); Ex parte Thomas, 628 So.2d 483 (Ala.1993).

The plaintiffs do not contend that the information is not relevant; rather, they appear to rely solely on the trial court’s ability to refuse discovery requests of a party who has not been diligent in conducting discovery. While that power surely rests in the trial court, any exercise of that power to bar the petitioners from performing the inspections now sought was clearly an abuse of discretion in this case.

The fact that the petitioners did not, until January 2002, seek permission to enter onto the intervenor plaintiffs’ property to perform the inspections they now seek is not at all surprising or unreasonable, given the course of discovery in this case. After three and one-half years of litigation with only one named plaintiff — the Town of Millry — the trial court in early- to mid-2000 radically changed the nature of this case by allowing over 100 individual plaintiffs to intervene, each claiming individualized damages. The petitioners immediately sought written discovery responses (which typically provide the foundation for depositions) regarding these new plaintiffs, but, as described above, those responses were seriously delayed by the plaintiffs’ failure or refusal to respond appropriately, even after they were ordered to do so by the trial court.

When the responses (still somewhat incomplete) were finally all received in April 2001, the deposition process began, and it was not completed until December 2001. Even then, the plaintiffs failed to produce five of the intervenor plaintiffs noticed for deposition, and, as the trial court itself noted, the plaintiffs have not yet given a valid reason for that failure.

When viewed as a whole, nothing in the discovery process indicates that the petitioners were not diligent in pursuing discovery. On the contrary, it appears that lack of diligence was mainly a characteristic of the plaintiffs, who were, for the most part, nonresponsive. Because, as stated above, the petitioners were entitled to follow the plaintiffs’ “lead” in determining what theories of causation to disprove and what alleged damage to examine, the petitioners’ actions in seeking to depose the numerous intervenor plaintiffs before examining their residences were more than reasonable and do not demonstrate a lack of diligence.

Because there was no contemptuous behavior or lack of diligence on the part of the petitioners, the trial court clearly abused its discretion in denying them the ability to inspect the intervenor plaintiffs’ residences in order to discover this clearly and directly relevant information. Therefore, we issue the writ as to this discovery aspect.

B. The petitioners’ request for time to complete appraisals and other outstanding discovery.

The plaintiffs contend that the issue whether to allow the petitioners additional time to complete their appraisals of the intervenor plaintiffs’ properties is now moot as a result of this Court’s stay of the proceedings below while the petitions for writ of mandamus were pending. The plaintiffs assert that the next applicable civil jury term is not until August 2002, and that an August trial date would provide the petitioners with sufficient time to complete the appraisals.

The petitioners concede that the appraisals and other outstanding discovery could be completed by August 2002; in fact, the petitioners indicate that the appraisals can be completed in approximately two months. Therefore, based on the representations of the parties, we find that this issue is now moot.

IV. Conclusion

For the reasons stated above, we grant the petitions in part and issue the writ directing the trial court to grant the petitioners’ request to inspect the intervenor plaintiffs’ residences made in their “Motion for Immediate Entry Upon Land for Inspection.” We deny the petitions as moot as to the petitioners’ requests for additional time within which to complete appraisals and other discovery.

PETITIONS GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., dissents.

      . We note at the outset that, as in any mandamus review of a trial court's ruling on a discovery request, our determination of the propriety of the ruling depends greatly on the factual context from which the ruling arose. Unfortunately, in their responsive brief, the plaintiffs provided this Court with approximately 46 pages of facts, almost none of which are relevant to the issue before this Court. Instead of providing this Court with facts responsive to the petitioners' brief and related to the discovery process in this case, the plaintiffs apparently, as the petitioners note in their reply brief, merely copied their factual statement from their motion in opposition to a summary judgment filed in the trial court; that motion is directed at the merits of their particular claims rather than the history of the discovery process. Because the plaintiffs’ statement of facts presents few, if any, legitimate conflicts with the description of the discovery process as stated by the petitioners and properly supported by the petitioners’ materials, we must assume that the petitioners' facts are substantially correct.

      . Counsel for the McFadden defendants did not immediately seek a motion to compel when the intervenor plaintiffs did not respond. Instead, on July 12, 2000, they attempted to resolve the intervenor plaintiffs' failure to respond through correspondence with the intervenor plaintiffs' lawyer, Joseph C. McCorquodale III; the letter to Mr. McCorquodale stated:
      "Dear Mac:
      "We served Interrogatories and Requests for Production on the intervenor plaintiffs on March 13, 2000. The intervenor plaintiffs’ responses to this discovery are now past due. Please furnish me with your clients’ responses within fifteen (15) days of the date of this letter; otherwise I will have to file a motion to compel.
      "Sincerely,
      "/s/ Winston R. Grow "WINSTON R. GROW "For the Firm”
      Apparently, the intervenor plaintiffs ignored this request. However, even after this letter was sent, counsel for the McFadden defendants waited until September 1, 2000 — more than 50 days later — to file their motion to compel.

      . The McFadden defendants' second motion to compel also stated that "[t]hese defendants further move this Court for an Order requiring the intervenor plaintiffs to show cause why they failed to comply with this Court’s Order requiring them to respond to said discovery, and upon a failure to show cause, these defendants move this Court for an Order holding the intervenor plaintiffs in contempt.” This request appears to have been granted also, because the trial court granted the second motion to compel in its entirety by simply writing "Granted” on the motion.

      . Even though they had been sent deposition notices, five of the intervenor plaintiffs were never produced for deposition. Instead, counsel for the intervenor plaintiffs produced "representatives” of those plaintiffs for deposition, claiming that the five noticed interve-nor plaintiffs were too sick or disabled to testify. However, no evidentiary showing was made of these plaintiffs’ alleged disabilities.
      This issue was raised again at a hearing on January 31, 2002 (at which the petitioners filed yet another motion to dismiss and/or for sanctions based on the plaintiffs’ failure to produce information previously requested), and counsel for the intervenor plaintiffs stated that while he would not call as witnesses the five plaintiffs who had not yet been deposed, he would not dismiss them as plaintiffs and he intended to advance their claims against the petitioners. When the trial court stated that those plaintiffs should be dismissed unless there was an evidentiary showing as to why they could not be deposed, counsel agreed to make such a showing. However, no such evidentiary showing was made.

      . Interestingly, in late 1999, the petitioners had apparently sought to take the depositions of the Milky residents who were connected to the expansion system (before the residents intervened in this action), but were asked by counsel for the intervenors to postpone the depositions, because the residents would be intervening in the action.

      . This information led the petitioners to issue subpoenas to various health-care providers for medical records and to notice the deposition of a physician who had treated many of the intervenor plaintiffs. According to the petitioners, medical discovery has not yet been completed.

      . Apparently, the plaintiffs had retained Williams before a motion-docket call held on November 14, 2001, because some of his appraisal reports were dated well before that date.

      . The trial date had been set at the November 14, 2001, docket call. At that time, the petitioners objected to the February 11, 2002, trial date, asserting that they did not believe discovery could be completed by then, but that they would make an effort to complete it.

      .The motion was actually filed by defendants SJ&L, Inc., and Michael Tew, but the McFadden defendants moved to join in the motion the next day, asserting additional reasons the motion should be granted.

      . The petitioners' requests for additional time actually came in the form of motions for continuance filed on January 3, 2002. The trial court ruled on those motions on January 16, 2002, when it ruled on the petitioners’ January 14, 2002, motion seeking permission to inspect the intervenor plaintiffs' properties.

      . Because these assertions (like many in the plaintiffs' argument section of their brief to this Court) are made without citation to the record to provide support and context, it is difficult to determine precisely what the plaintiffs are referring to by the phrase "almost unlimited and unfettered access.” As discussed below, however, even if this assertion were true, the fact that the petitioners had such access before 1998 would not now support the plaintiffs’ arguments.


source: Caselaw Access Project

author: YATES, Judge. CRAWLEY, Judge,

license: Public Domain

text:
    STATE BOARD OF NURSING v. Donna Jacquelyn STEJSKAL.
    2990909.
    Court of Civil Appeals of Alabama.
    Dec. 1, 2000.
    Rehearing Denied Jan. 12, 2001.

      Bill Pryor, atty. gen.; and Gail Ingram Hampton, asst. atty. gen., and general counsel, Alabama Board of Nursing, for appellant.
    Alvin T. Prestwood of Volz, Prestwood & Hanan, P.C., Montgomery, for appellee.
   YATES, Judge.

The State Board of Nursing (“the Board”) appeals from a judgment in favor of Donna Jacquelyn Stejskal.

Stejskal received her license as a registered nurse on August 28, 1992. On March 22, 1994, the Board revoked her R.N. license because of a felony conviction for bank fraud. On May 24, 1995, the Board denied Stejskal’s request for reinstatement; however, on May 23, 1997, the Board approved her reinstatement, with several terms and conditions, and imposed on her a 24-month probationary period. In June 1998, the Board alleged that Stejskal had violated several terms of her probation and, on July 28, 1998, it held a hearing to determine whether disciplinary action should be taken. The hearing officer issued an order recommending that Stejskal be reprimanded and that her probationary period be extended by one year. The Board, on September 18, 1998, rejected the recommendations of the hearing officer and again revoked Stejskal’s R.N. license.

On September 29, 1998, Stejskal appealed the Board’s decision, pursuant to § 41-22-20, Ala.Code 1975 (part of the Alabama Administrative Procedure Act), to the Montgomery County Circuit Court. On April 19, 2000, the court entered an order setting aside the Board’s decision and accepting the hearing officer’s recommendation, thereby reinstating Stejskal’s R.N. license. The order states, in part:

“DISCUSSION
“The first alleged violation was that [Stejskal’s] probation officer failed to render reports to the Board. This Court finds that this alleged violation is meritless in view of the fact that [Stejskal] has absolutely no control of when and if a probation officer files a report with the Alabama Board of Nursing. This Court would note that this was not a report that [Stejskal] herself was required to file with the Board, but instead was a report that the Board required her probation officer to file.
“The second alleged violation was that [Stejskal] changed employment without reporting the change of employment to the Board. The hearing held before the hearing officer showed that [Stejskal] took on a part-time job in addition to her full-time job working various weekends at the Eastern Shore Healthcare Facility. It was undisputed that [Stejskal’s] full-time job was working as [an] R.N. in the office of Dr. Harvey Robles, a cardiologist, [by] whom she had been employed for 3 years and [that she] was identified by Doctor Robles as a good employee. [Stejskal] stated at the hearing that she did not report her part-time job to the Board because she understood that she had to report only a ‘change’ in employment and did not consider this to be a change in employment but merely a second job. Obviously, the hearing officer believed that there was some confusion on [Stejskal’s] part because he recommended that she receive only a reprimand and her probation be extended for a period of 1 year, to expire on August 4, 1999. Judy Crume, Executive Officer of the Alabama Board of Nursing, was the individual who overruled this recommendation and in fact revoked [Stejskal’s] nursing license.
“The third alleged violation was that [Stejskal] failed to notify the Eastern Shore Healthcare Facility that she had a conviction for bank fraud and that she was currently in a probationary status with regards to her R.N. license. [Stejskal] stated at the hearing that she had in fact orally notified Ms. Tina Web-ber, who was the personnel director at the Eastern Shore Healthcare Facility, about her conviction and her probationary status at the time of the interview. [At this point in the order appears this footnote: ‘Ms. Webber is no longer employed by the Eastern Shore Healthcare Facility and was not available for the hearing.’] Ms. Martha Howell, the personnel director who replaced Tina Web-ber, testified that she was never notified by [Stejskal] of the bank fraud conviction and that she did not know that she was on probation with the Board until she saw it in one of the Board’s publications. It is evident from the transcript provided from the hearing, that this issue is one [as to which] the parties genuinely had legitimate and convincing differences of opinion. [Stejskal], of course, argued that she informed the personnel director at the time, Ms. Tina Webber, about her conviction as well as her probationary status with the Board. The [Board], however, argued that the personnel director, Ms. Martha Howell, who took Ms. Webber’s place, knew nothing about the conviction or the probationary status. The Board also pointed out that [Stejskal] had tried earlier to get a job with North Baldwin Hospital but was unsuccessful in obtaining employment after she disclosed to them that she in fact was on probation and had a felony conviction. The Board’s attorney argued that [Stejskal] did not inform the Eastern Shore Healthcare Facility about her conviction because she knew she would not get the job based on what had previously taken place at North Baldwin Hospital. [ -]
“CONCLUSION
“It is important to recognize that the hearing officer, after listening to all the witnesses as well as examining all the exhibits, did not recommend that any of the 3 alleged violations justified revoking [Stejskal’s] nursing license. In fact, the hearing officer recommended a reprimand and a 1-year extension of [Stejskal’s] probation. Judy Crume chose not to accept the hearing officer’s recommendation and revoked [Stejskal’s] nursing license. This Court recognizes that Ms. Crume is not required to adopt the hearing officer’s recommendation; however, Ms. Crume’s recommendation is not supported by the evidence presented to the hearing officer.
“... [H]aving reviewed the entire record, [the Court finds it evident] that the revocation of [Stejskal’s] nursing license had nothing to do with her abilities to function as a registered nurse but instead was based on 3 alleged violations of her probationary terms. The first alleged violation has no merit. The second alleged violation was not clear, at best, regarding the definition of ‘change in employment.’ The final alleged violation certainly could have been argued either way, and this Court gives deference to the Board’s position that it was in fact violated. However, this violation did not rise to any level which would [justify] revoking [Stejskal’s] nursing license for life.”

The Board argues that the revocation of Stejskal’s R.N. license was proper and is due to be affirmed.

In State Personnel Dep’t v. Mays, 624 So.2d 194 (Ala.Civ.App.1993), we affirmed the trial court’s decision to reverse a ruling by the Board regarding the termination of an employee’s job, stating:

“We recognize that the Board is not bound by the credibility determinations of the hearing officer. However, we do not find the Board’s supporting evidence in this case to be ‘substantial when measured against the [hearing officer’s] con-
trary findings as well as the opposing evidence.’ Furthermore, while the hearing officer’s recommendations are not binding upon the Board, the Board’s discretion is not unbridled. The Board must have some reasonable justification for its determination or base it upon adequate principles or fixed standards so that it will not be arbitrary or capricious. Alabama Medicaid Agency v. Beverly Enterprises, 521 So.2d 1329 (Ala.Civ.App.1987).”

Id. at 197-98 (citations omitted). In Mays, the trial court found that there was insufficient evidence to support the Board’s determination and “that the Board’s rejection of the findings of the hearing officer was done without substantial justification and was, therefore, unreasonable, arbitrary, and capricious. § 41-22 — 20(k)(7), Code 1975.” Id. at 198. Likewise, we conclude in this present case that the trial court correctly set aside the ruling of the Board.

AFFIRMED.

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

CRAWLEY, J., dissents.

CRAWLEY, Judge,

dissenting.

I would reverse the judgment of the circuit court and reinstate the order of the Board revoking Ms. Stejskal’s license as a registered nurse. Therefore, I respectfully dissent.

The circuit court was required to give the decision of the Board — not the recommendation of the hearing officer — a presumption of correctness. See Alabama Bd. of Nursing v. Herrick, 454 So.2d 1041 (Ala.Civ.App.1984). The circuit court may reverse the Board’s decision only if it finds the decision to be unsupported by the evidence and, thus, arbitrary and capricious.

The Board is responsible for seeing that a nurse who has previously been convicted of an offense involving fraud, who has lost her license, and who is then placed on probation presents no risk to the public safety. See § 34-21-25, Ala.Code 1975. The Board has every right to require that a probationary licensee live up to strict reporting standards during her period of probation. The Board’s decision to revoke Ms. Stejskal’s license because she did not adhere to the reporting standards was not arbitrary and capricious.

The circuit court has erroneously substituted its judgment for that of the Board, and we should reverse its judgment. See § 41-22-2000, Ala.Code 1975.

“[I]n reviewing the action of an administrative agency [the circuit court] does not pass upon the wisdom of the decision of the agency nor is it within the purview of the courts to pass upon the merits of a particular action of an administrative agency when the agency exercised its discretion in choosing the method of achieving legislative objectives.”

Alabama Bd. of Nursing v. Herrick, 454 So.2d at 1043.

      . The record contains documentation indicating that Stejskal was offered a position with Baldwin Hospital and that, according to Stejskal, she had declined the position because of the work hours and child-care considerations.


author: BROWN, Justice. HARWOOD, Justice

text:
    Ex parte ALABAMA BOARD OF NURSING. (In re State Board of Nursing v. Donna Jacquelyn Stejskal.)
    1000768.
    Supreme Court of Alabama.
    Dec. 7, 2001.
    Rehearing Denied April 12, 2002.

      Bill Pryor, atty. gen., and Gail Ingram Hampton, asst. atty. gen., and general counsel, Alabama Board of Nursing, for petitioner.
    Alvin T. Prestwood of Volz, Prestwood, Hanan & Barganier, P.C., Montgomery, for respondent.
   BROWN, Justice.

We granted certiorari review in this case to determine whether the Court of Civil Appeals erred in affirming the trial court’s reversal of the revocation by the Alabama Board of Nursing (“the Board”) of Donna Jacquelyn Stejskal’s professional license. We reverse and remand.

Facts and Procedural History

Donna Jacquelyn Stejskal was licensed as a registered nurse in 1992. In March 1994, the Board revoked her license because she had been convicted of a felony (bank fraud) in the United States District Court for the Southern District of Alabama. She spent four months in prison and was placed on probation for five years as a result of the conviction. On May 24, 1995, Stejskal requested that her license be reinstated, and the Board denied her request. Stejskal reapplied in May 1997, and the Board granted her application for reinstatement and placed her on probationary status for 24 months.

The reinstatement of Stejskal’s license was subject to specified terms and conditions outlined in the Board’s order of probation. Pursuant to this order, Stejskal was required to notify immediately her employer or any potential employer of her probationary status and to provide the employer or a potential employer with a copy of the Board’s order. The order further required that the employer acknowledge to the Board that it had been provided with a copy of the order and state whether it would be able to employ Stejskal and to monitor her work. Finally, the order required an employer to agree to submit reports on Stejskal’s job performance to the Board on a quarterly basis.

In addition to the requirements placed upon her employer, the order required Stejskal to submit monthly “self-reports,” in which she was to state her current employment as well as any change in her employment status that had occurred during the month. The Board’s probation officer then cross-checked those self-reports with the reports submitted by the employer.

In June 1998, the Board alleged that Stejskal had violated several terms of her probation. The basis of the alleged violations regarded Stejskal’s part-time employment. Stejskal had been employed full-time as a nurse in a cardiologist’s office for three years. The cardiologist reported that she was a good employee. In addition to this job, Stejskal took a part-time nursing position with Eastern Shore Healthcare Facility (“Eastern Shore”). Stejskal maintains that because her employment with Eastern Shore was only part-time and because it did not interfere with, or cause her to terminate, her employment with the cardiologist, there had not been a “change” in her employment status, and, thus, she was not required to, and did not, report her employment with Eastern Shore to the Board. Although Stejskal testified that she reported her probationary status to Tina Webber, the personnel director for Eastern Shore at the time she was hired by Eastern Shore, Martha Howell, who was the personnel director when the Board discovered the alleged violations, stated that she was never notified that Stejskal was on probation. Stejskal submitted no signed acknowledgment by Eastern Shore indicating that it was aware of Stejskal’s probation as required by the order. Additionally, Eastern Shore never provided any evaluations of Stejskal’s performance to the Board’s probation officer.

After the Board discovered the alleged violations, it assigned a hearing officer to collect evidence and to make a recommendation regarding Stejskal’s discipline. Following a hearing on July 28, 1998, the hearing officer recommended that Stejskal be reprimanded and that her probationary status be extended by one year. However, on September 18, 1998, the Board rejected the hearing officer’s recommendation and again revoked Stejskal’s license.

Stejskal appealed the Board’s decision to the Montgomery Circuit Court. The trial court found that the Board’s decision was not supported by the evidence, stating:

“It is important to recognize that the hearing officer, after listening to all the witnesses as well as examining all the exhibits, did not recommend that any of the 3 alleged violations justified revoking [Stejskal’s] nursing license. In fact, the hearing officer recommended a reprimand and a 1-year extension of [Stejskal’s] probation.”

Although the trial court’s order identifies Judi Crume, the executive officer of the Alabama Board of Nursing, as the sole decision-maker in the decision to overrule the hearing officer’s recommendation and to revoke Stejskal’s license, it appears undisputed that the order of probation was issued under the authority of the entire Board.

The Board appealed to the Court of Civil Appeals, which affirmed the trial court’s decision. State Board of Nursing v. Stejskal, 835 So.2d 1006 (Ala.Civ.App.2000). The Board petitioned this Court for certiorari review, arguing that the Court of Civil Appeals’ opinion conflicted with Alabama Board of Nursing v. Herrick, 454 So.2d 1041 (Ala.Civ.App.1984).

Analysis

“Judicial review of an agency’s administrative decision is limited to determining whether the decision is supported by substantial evidence, whether the agency’s actions were reasonable, and whether its actions were within its statutory and constitutional powers. Judicial review is also limited by the presumption of correctness which attaches to a decision by an administrative agency.”

Alabama Medicaid Agency v. Peoples, 549 So.2d 504, 506 (Ala.Civ.App.1989) (citations omitted).

Section 34-21-25(b), Ala.Code 1975, provides:

“The board may ... deny, revoke, or suspend any license issued by it or to otherwise discipline a licensee upon proof that the licensee ... is guilty of unprofessional conduct of a character likely to deceive, defraud, or injure the public in matters pertaining to health or has willfully or repeatedly violated any of the provisions of this article, as defined by board rules and regulations.”

The Court of Civil Appeals’ opinion affirming the trial court’s decision in this case relied solely on State Personnel Dep’t v. Mays, 624 So.2d 194 (Ala.Civ.App.1993), and reasoned that the Board’s supporting evidence was insufficient to override the recommendation of the hearing officer. In Mays, supra, the Court of Civil Appeals affirmed a trial court’s order that reversed the State Personnel Board’s rejection of the findings of fact and recommendations of a hearing officer. Because it found that the State Personnel Board had rejected the findings of the hearing officer without substantial justification, the Court of Civil Appeals concluded that the Board’s decision was unreasonable, arbitrary, and capricious. Mays, 624 So.2d at 198. Therefore, because the Court of Civil Appeals in this case relied solely on Mays, we must conclude that the Court of Civil Appeals found the Board’s revocation of Stejskal’s license to be unreasonable, arbitrary, and capricious.

The Board alleges that the Court of Civil Appeals’ decision in this case conflicts with its opinion in Alabama Board of Nursing v. Herrick, 454 So.2d 1041 (Ala.Civ.App.1984). In Herrick, the factual situation was quite similar to this case — it involved the suspension or revocation of the license of a licensed practical nurse. After hearing evidence and making findings of fact and conclusions of law, the hearing officer recommended a 90-day suspension of Herrick’s license. As in this case, the Board adopted the hearing officer’s findings of fact and conclusions of law, yet it ordered that Herrick’s license be revoked. On appeal, the circuit court adopted the findings of fact of the hearing officer, reversed the order of the Board, and substituted the hearing officer’s recommendation. The Board appealed to the Court of Civil Appeals, which stated that pursuant to § 34-21-25, Ala.Code 1975, “the [Bjoard, not the hearing officer, has the authority to revoke or suspend any license issued by it upon proof that the [licensee] was guilty of unprofessional conduct of a nature likely to injure the public in matters pertaining to health.” Herrick, 454 So.2d at 1043. Based on the facts before it, the Court of Civil Appeals determined that the Board, in revoking Herrick’s license, had not exceeded the scope of its authority.

Based on the facts before us, we conclude that the Board’s decision to revoke Stejskal’s license was supported by substantial evidence; that it was reasonable; and that it was within the Board’s constitutional and statutory authority. Pursuant to the terms of her probation, Stejskal was required to inform the Board of any change in her employment status. It is undisputed that while Stejskal was employed by the cardiologist she sought and obtained additional, part-time employment with Eastern Shore Healthcare Facility, a nursing home facility. After she was employed at Eastern Shore, Stejskal submitted four self-reports to the Board; she did not report her employment with Eastern Shore in any of those self-reports. Although Stejskal argues that the Eastern Shore position was only part-time and that it, therefore, did not constitute a “change of employment,” it nevertheless constituted additional employment within the nursing field, a matter that is within the Board’s discretion to monitor.

Also pursuant to the terms of her probation, Stejskal was required to notify any employer or potential employer of her probationary status and to provide the employer with a copy of the order of probation. Stejskal’s employer was also required to submit quarterly reports regarding Stejskal’s job performance. Although Stejskal testified that she had informed Tina Webber, the Eastern Shore personnel director who had hired her, of her probationary status, Martha Howell, personnel director at Eastern Shore at the time of the discovery of the alleged violations, testified that Stejskal had never notified her of her probationary status. Moreover, Eastern Shore did not have a copy of the order of probation in its file before it discovered Stejskal’s probation violation, and Eastern Shore never submitted any reports to the Board.

Stejskal had been convicted of bank fraud, a crime involving theft and dishonesty. Because a nurse has access to many things of value, such as drugs, supplies, and the personal property of patients, the Board chose to monitor Stejskal’s return to the practice of nursing. Because of the continued dishonesty regarding her employment during the last few months of her probation, the Board again revoked Stejskal’s license.

Because Stejskal violated the specific terms of her probation, the Board acted within its discretion in revoking her license and the trial court erroneously reversed its decision. Thus, we hold that the Court of Civil Appeals’ affirmance in this ease conflicts with Alabama Board of Nursing v. Herrick, 454 So.2d 1041 (Ala.Civ.App.1984). Accordingly, we reverse the judgment of the Court of Civil Appeals and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, SEE, LYONS, JOHNSTONE, WOODALL, and STUART, JJ., concur.

HARWOOD, J., concurs specially.

HARWOOD, Justice

(concurring specially).

I concur fully with the main opinion. I write specially only to offer the following observations and considerations.

None of the cases cited by the parties or in either the opinion by the Court of Civil Appeals or Judge Crawley’s dissent from that opinion involves precisely the same factual and procedural setting we are now called upon to review. Specifically, in none of those cases had the licensee already had his or her license revoked and then had it reinstated conditionally for a prescribed period of probation. Neither the parties nor the Court of Civil Appeals has questioned the authority of the State Board of Nursing to reinstate a revoked license conditionally for a stated period of probation, subject to the terms and conditions specified for that probation. Section 34-21-25(b) authorizes the board to “deny, revoke, or suspend any license issued by it or to otherwise discipline a licensee upon proof that the licensee ... has been convicted of a felony-” Subsection (g) provides that “[i]f the accused person is found guilty of the charges, the board may refuse to issue a license, may revoke or suspend a license or may otherwise discipline a licensee. A revoked license may be considered for reinstatement after one year in accordance with board rules.”

In this case, Ms. Stejskal had been convicted of a felony, the Board had revoked her registered-nurse license, and then had rejected her initial application for reinstatement. It granted her second application for reinstatement, but only on the condition that she observe prescribed conditions of probation for a 24-month period. The Board subsequently revoked that conditional reinstatement, based upon its finding that Ms. Stejskal had violated certain conditions of her probation. It is important to note that the Board’s findings of fact in this regard precisely parallel those of the hearing officer appointed to conduct the initial proceedings arising out of the charges of probation violation. In particular, the hearing officer found that Ms. Stejskal had “violated the term of probation that required her to notify the Board in writing of changes in employment, in that she failed to notify the Board of her employment with Eastern Shore Health Care which began on or about December 26, 1997, as a second job,” and that she “also failed to disclose her employment [with] Eastern Shore Health Care in self-reports mailed to the Board after she began working at the facility.” Further, the hearing officer found that Ms. Stejskal had violated the term of her probation that required her to have her employer notify the Board on the employer’s letterhead within 14 days of employment of its receipt of a copy of the order of the Board. The hearing officer also found that Ms. Stejskal’s conduct constituted ground for disciplinary action for violation of Ala.Code 1975, § 34-21-25, and Alabama Board of Nursing Administrative Code, § 610-X-8-.05(e)7.

The document entitled “Findings of Fact and Conclusions of Law of Hearing Officer” was transmitted to the 13-member Board, along with a full transcript of the proceedings before the hearing officer and copies of all exhibits introduced at that hearing. The Board considered all of those materials before concluding that Ms. Stejskal had violated her probation in exactly the same respects as had been found by the hearing officer, but differed with him as to the appropriate sanction. It elected to revoke Ms. Stejskal’s probation and to revoke her conditionally reinstated license. (That revocation would return her to the status of a revoked licensee who might be considered for reinstatement after one year from the revocation.) Neither the circuit court nor the Court of Civil Appeals has questioned the findings of fact by the hearing officer or those same findings of fact subsequently adopted by the Board. Rather, the circuit court simply concluded that “Ms. Crume’s recommendation that Ms. Stejskal’s probationary license be revoked, was not supported by the evidence presented by the hearing officer.” (Emphasis added.) In this regard, the circuit court apparently misapprehended the nature of the proceedings below. Although the order issued by the Board was signed on its behalf by “Judi Crume, RN, MSN Executive Officer,” Ms. Crume did not have a vote at the Board meeting, and the order of revocation was that of the 13 members of the Board.

Relying on State Personnel Department v. Mays, 624 So.2d 194 (Ala.Civ.App.1993), the Court of Civil Appeals concluded that the circuit court had correctly set aside the ruling of the Board because, quoting from Mays, “ ‘the Board’s rejection of the findings of the hearing officer was done without substantial justification and was, therefore, unreasonable, arbitrary, and capricious. § 41-22-20(k)(7), Code 1975.’ ” 624 So.2d at 198. In Mays, the hearing officer had concluded that there was “insufficient evidence that the incidents had occurred as charged,” 624 So.2d at 196, and recommended that the employee be reinstated with back pay. The personnel board concluded that the hearing officer “had ignored evidence corroborating the account of the incident,” 624 So.2d at 196, and entered an order upholding the employee’s dismissal. On appeal, the circuit court found that the hearing officer had not in fact ignored the alleged corroborating evidence and noted that, because “most of the central facts in this case were vigorously disputed, this case turns upon the question of credibility.” 624 So.2d at 196. The circuit court reversed the Board’s decision, concluding that its rejection of the hearing officer’s findings of fact was without substantial justification and was, therefore, unreasonable, arbitrary, and capricious. On appeal, the Court of Civil Appeals observed that the Board was not bound by the credibility determinations of the hearing officer, but found that the evidence the Board had cited was not “ ‘substantial when measured against the [hearing officer’s] contrary findings as well as the opposing evidence.’ ” 624 So.2d at 196, quoting Personnel Board v. King, 456 So.2d 80, 82 (Ala.Civ.App.1984). The Court of Civil Appeals concluded that, consequently, the Board had no reasonable justification for its determination and its action was deemed to have been arbitrary and capricious. Section 41 — 22—20(k)(6) and (7), Ala.Code 1975, a part of the Alabama Administrative Procedure Act, provides that upon appeal of an agency’s decision to an appropriate circuit court “[t]he court may reverse or modify the decision ... if the substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following: ... (6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.”

As noted, this is not a case where the Board has rejected the hearing officer’s findings of fact. Rather, it has fully adopted those findings and has simply disagreed with the officer’s recommendation of the appropriate sanction. I do not consider that the Board’s decision in that regard was either clearly erroneous or unreasonable, arbitrary, or capricious, or was characterized by an abuse of discretion or was a clearly unwarranted exercise of discretion.

Although not directly analogous, the law relating to revocation of probation in criminal cases is somewhat instructive. A judge considering a charge of probation violation must be only “reasonably satisfied from the evidence” that a violation of the conditions or regulations of probation or the instructions occurred. Rule 27.6(d)(1), Ala. R.Crim. P. “If the court finds that a violation of the conditions or regulations of probation or instructions occurred, it may revoke, modify, or continue probation.” Rule 27.6(e).

Ms. Stejskal’s license had originally been revoked on account of her conviction of bank fraud, a felony that involved theft and dishonesty. It is certainly understandable that the Board decided to reinstate her license only on a conditional, probationary basis, believing that legitimate concerns for protection of the public reasonably required particularized monitoring of her return to practice. As the Board cogently stated in its petition to this Court, “nurses have access to many things of value such as drugs, supplies, and patient’s personal property. Nurses can also engage in fraudulent activities in the workplace such as charting medications and treatments as having been administered which in fact have not been performed.” The terms of probation imposed by the Board established a series of “cross-checking” mechanisms designed to allow the Board to oversee closely Ms. Stejskal’s return to nursing practice to make sure that problems did not arise in any work setting.

Even in a nonprobationary status setting, a circuit court is required to regard a revocation order by the Board “as prima facie, just and reasonable and the court shall not substitute its judgment for that of the [Board] as to the weight of the evidence on questions of fact, except where otherwise authorized by statute.” § 41-22-20(k). The decision of the circuit court in this case that Ms. Stejskal’s violation of her probation “did not rise to any level which would [justify] revoking [Ms. Stejskal’s] nursing license for life” was simply a determination by the circuit court that the sanction deemed appropriate by the Board, i.e., revocation of the conditional reinstatement of Ms. Stejskal’s license, was too harsh. Likewise, the conclusion by the Court of Civil Appeals that there was insufficient evidence to support the Board’s determination, with the result that the Board’s rejection of “the findings of the hearing officer was done without substantial justification and was, therefore, unreasonable, arbitrary, and capricious,” 624 So.2d at 198, is a substitution by that court of its judgment for that of the agency as to the weight of the evidence.

Superimposed upon all of these standards of review developed for cases of “initial” revocation by an agency of a license granted by the agency, is the special circumstance that we are not reviewing an initial revocation, but rather a decision to revoke a probationary license. That circumstance warrants increased deference to the decision of the entity that granted the probation and has the responsibility for overseeing it and choosing an appropriate sanction for probation violation. Importantly, we must remember that we are not dealing with a case where the question is whether a violation of probation was proven. The hearing officer and the Board both found multiple violations to have been proven, and neither the trial court nor the Court of Civil Appeals questioned those findings. Rather, we are simply considering whether the sanction selected by the Board — revocation of the conditionally reinstated license — was clearly erroneous in view of the substantial evidence on the whole record, or was otherwise unreasonable, arbitrary, or capricious, or was an abuse of discretion or a clearly unwarranted exercise of discretion. It was none of those.


author: PER CURIAM.

text:
    STATE BOARD OF NURSING v. Donna Jacquelyn STEJSKAL.
    2990909.
    Court of Civil Appeals of Alabama.
    May 17, 2002.
    Bill Pryor, atty. gen.; and Gail Ingram Hampton, asst. atty. gen., and general counsel, Alabama Board of Nursing, for appellant.
    Alvin T. Prestwood of Volz, Prestwood & Hanan, P.C., Montgomery, for appellee.
   After Remand from the Alabama Supreme Court

PER CURIAM.

The Alabama Supreme Court has reversed this court’s judgment of December 1, 2000, and has remanded the case. Ex parte Alabama Board of Nursing, 835 So.2d 1010 (Ala.2001). In accordance with the Alabama Supreme Court’s opinion, the judgment of the trial court is reversed, and the case is remanded.

REVERSED AND REMANDED.

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


author: PITTMAN, Judge.

text:
    Doris Jean SCHWARTZ v. David M. SCHWARTZ.
    2010136.
    Court of Civil Appeals of Alabama.
    May 10, 2002.

      Doris Jean Schwartz, pro se.
    William K. Bell and Dinah P. Rhodes of Lammons, Bell & Rhodes, Huntsville, for appellee.
   PITTMAN, Judge.

This is an appeal from the trial court’s final judgment in a divorce action.

David M. Schwartz filed a complaint for divorce from his wife, Doris Jean Schwartz, on March 6, 2000. The wife filed an answer and a counterclaim for divorce. We do not now recount the procedural history of this case because it is not relevant to our disposition of the matter on appeal. The trial court entered a final judgment of divorce on May 29, 2001. The wife appeals.

The husband has filed a separate motion to dismiss the wife’s appeal, citing Rule 28, Ala. R.App. P. He argues in his brief to this court that he is unable to argue any issue on appeal because of the wife’s noncompliance with Rule 28. He is correct.

The appellate brief of the wife contains no table of contents, no table of cases, no statement of a cognizable legal argument, no citations to the record, and no citation to any controlling legal authority. In short, there is absolutely no compliance with the requirements of Rule 28. The wife has filed her appeal pro se; however, a pro se litigant must comply with legal procedures and court rules. Black v. Allen, 587 So.2d 349 (Ala.Civ.App.1991). Courts are no more forgiving to pro se litigants than to those represented by counsel. Black, supra. Additionally, it has long been held that “[wjhen an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research.” City of Birmingham, v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998)(internal citations omitted). See also McLemore v. Fleming, 604 So.2d 353 (Ala.1992); Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251 (Ala.1985); and Ex parte Riley, 464 So.2d 92 (Ala.1985).

The husband’s motion to dismiss the appeal based on the wife’s failure to comply with Rule 28 is hereby granted, and the appeal is dismissed.

APPEAL DISMISSED.

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


author: THOMPSON, Judge.

text:
    STATE of Alabama ex rel. Rita J. LEWIS v. Gaines L. DAVIS, Jr.
    2010141.
    Court of Civil Appeals of Alabama.
    May 10, 2002.
    J. Coleman Campbell and Jennifer M. Bush, asst, attys. gen., Department of Human Resources, for appellant.
    Ronald S. Held.of Sides, Oglesby, Held & Dick, Anniston, for appellee.
   THOMPSON, Judge.

Rita J. Lewis (“the mother”) and Gaines L. Davis, Jr. (“the father”), are the parents of Gregory M. Davis (“the child”). On November 13, 2000, the State of Alabama, on behalf of the mother (hereinafter “the State”), filed a complaint for nonpayment of child support, alleging that the father owed a child-support arrearage of $10,400.72, plus interest of $14,568.67. On March 13, 2001, the father answered the State’s petition.

On June 26, 2001, the trial court conducted an ore tenus hearing on the State’s petition. On the same day, the trial court entered a judgment finding the father’s total child-support arrearage to be $2,000. The trial court did not assess interest on the arrearage, but ordered him to pay $100 per month toward the arrearage.

On July 3, 2001, the State filed a post-judgment motion requesting that the trial court assess interest on the father’s child-support arrearage. On September 27, 2001, the trial court, following a hearing on the State’s postjudgment motion, entered an order setting aside its June 26, 2001, judgment. The trial court’s September 27, 2001, order states, in pertinent part:

“The [trial] court, having reconsidered the evidence presented in open court on June 26, 2001, and the arguments of counsel at the hearing on the motion on August 21, 2001, finds that the original judgment entered herein should be set aside because the [State] failed to meet the burden of proof required for the entry of said judgment. Accordingly, it is hereby ordered, adjudged, and decreed that the judgment entered in this cause on June 26, 2001, is hereby set aside and held for naught. Judgment is hereby entered in favor of the [father], with costs taxed as paid.”

The State appealed.

At the time of the hearing in this matter, the child was 24 years old. The father testified that the mother informed him that it was more convenient for him to pay child support directly to her, rather than through the trial court. Donna Davis, the father’s current wife, testified that she personally delivered child-support payments to the mother. The father testified that he had saved his child-support receipts in a shoe box, but that, after the child reached the age of emancipation, he destroyed the receipts because he did not think he needed them. The father admitted that “[t]here were some months I probably missed [paying child support]. I’m not going to lie to you.” He also testified, “I would say [I was] maybe $2,000 behind, if anything. I would agree to that.”

The mother testified that the father had made some child-support payments directly to her, but that he had not paid more than $1,500 since the child was three or four years old. The mother testified that she delayed pursuing enforcement of the father’s child-support arrearage because “[i]t was easier to let things go because there were so many problems continuously.”

The State argues that the trial court committed reversible error when it set aside its June 26, 2001, judgment. A trial court’s judgment determining an amount of a child-support arrearage will not be reversed unless the trial court abused its discretion. W.L.S. v. K.S.S.V., 810 So.2d 777 (Ala.Civ.App.2001) (citing Brown v. Brown, 513 So.2d 617 (Ala.Civ.App.1987)). During the June 26, 2001, hearing, the State alleged that the father owed a total child-support arrearage, including interest, of $24,334.78. The father admitted that he had not paid “some” of the child-support payments on the dates they were due and that those payments had matured into a $2,000 debt. The trial court cannot change or modify the child-support arrearage to which the father admitted. See W.L.S. v. K.S.S.V., supra. We, therefore, conclude that the trial court erred in refusing to require the husband to pay the child-support arrearage he admitted he owed.

The State also argues that the trial court abused its discretion by denying its postjudgment motion seeking an award of interest on the father’s child-support arrearage. This court must determine whether the trial court abused its discretion in denying a postjudgment motion. Albertson v. Albertson, 678 So.2d 118 (Ala.Civ.App.1995). We may reverse a trial court’s denial of a postjudgment motion where the trial court commits plain and palpable error and where a legal right has been abused. Coker v. Farmers Mut. Exch., 425 So.2d 489 (Ala.Civ.App.1983). A trial court commits reversible error when it does not assess interest that has been properly requested on a child-support arrearage. State Dep’t of Human Res. ex rel. McGhee v. McGhee, 634 So.2d 573 (Ala.Civ.App.1994). In addition, a trial court cannot waive postjudgment interest on a child-support arrearage. State Dep’t of Human Res. v. R.L.R., 743 So.2d 495 (Ala.Civ.App.1999).

On more than one occasion, the State requested that the trial court impose interest on the father’s child-support ar-rearage. Therefore, because we find the father owed a child-support arrearage and that the State properly requested that interest be imposed on that arrearage, we conclude that the trial court erred in denying the State’s postjudgment motion. See State Dep’t of Human Res. v. R.L.R., supra; State Dep’t of Human Res. ex rel. McGhee v. McGhee, supra.

Accordingly, the trial court’s judgment is reversed, and the cause is remanded with instructions for the trial court to enter an order consistent with this opinion.

The appellant filed a motion to strike a portion of the appellee’s brief; that motion is denied.

REVERSED AND REMANDED.

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

      . We note that this amount is more than the amount of the arrearage and interest alleged in the complaint to be owed.


text:
    Robert O. LIVINGSTON v. Cheryl D. LIVINGSTON.
    2001127.
    Court of Civil Appeals of Alabama.
    May 10, 2002.

      Desmond B. Toler, Mobile, for appellant.
    Submitted on appellant’s brief only.
   PITTMAN, Judge.

Robert 0. Livingston (“the husband”) appeals the trial court’s denial of his Rule 60(b), Ala. R. Civ. P., motion. Cheryl D. Livingston (“the wife”) sued for a divorce on October 18, 2000. At the same time, the wife filed a motion for a restraining order and for temporary custody of the couple’s minor son. In that motion the wife alleged that she had resided in Texas ■with the husband until January 2000, when she and the minor son moved to Mobile. She alleged that she was held “involuntarily” in Texas for a period when she returned there in June 2000. While in Texas to pick up the minor son after summer visitation, she learned that the husband was moving to California to accept a job. She stayed with him in California, again “involuntarily,” for another period until she could bring herself and her son back to Alabama. She requested a temporary restraining order to prevent the husband from removing the son from Alabama, and she requested temporary custody of both minor children. The trial court ordered that a hearing on the motion be held on December 21, 2000.

On December 1, 2000, the husband filed a letter with the trial court asserting that the wife had not lived in Alabama for the statutory six months required to vest the trial court with jurisdiction. He further alleged that a Texas court currently had jurisdiction over the children of the marriage. The father also denied incarcerating the wife involuntarily in the family home and requested that the trial court grant him child custody and not order him to pay alimony or child support.

The trial court held a hearing on December 21, 2000; it granted the wife’s request for temporary custody of the two children and imposed a restraining order on the husband, prohibiting him from removing the son from the jurisdiction of the Mobile Circuit Court. The trial court set the trial date for February 22, 2001. We cannot determine from the record on appeal whether the husband ever received notice of either the December 21, 2000, hearing or the February 22, 2001, trial date.

On February 7, 2001, the Harris County, Texas, District Court abated the Living-stons’ divorce action pending the Mobile Circuit Court’s resolution of the jurisdictional issue.

On February 28, 2001, the trial court entered a final judgment of divorce by default. In the divorce judgment the trial court awarded custody of the minor son to the wife and custody of the minor daughter to the husband. The trial court ordered the husband to pay $896 in monthly child support, beginning February 1, 2001; to pay for all medical and dental bills incurred on behalf of the minor son; and to pay $50,000 alimony in gross, to be payable for 50 months at the rate of $1,000 per month, beginning February 1, 2001. The trial court divided the marital property and retained jurisdiction over visitation, wage withholding, and support of the minor children.

On March 30, 2001, the husband filed a Rule 60(b), Ala. R. Civ. P., motion requesting relief from the judgment entered on February 28, 2001. In the motion, the husband again stated that the wife had not been a resident of Alabama for six months preceding the filing of her complaint. He outlined the facts that support this contention as well as stating that the divorce judgment was defective in two specific areas: (1) that the judgment mentions support for only the minor son and omits the couple’s minor daughter, and (2) that neither alimony nor attorney’s fee awards may be made when the trial court has no in personam jurisdiction over the husband.

On May 1, 2001, the wife answered the husband’s Rule 60(b) motion and filed a cross-motion for rule nisi, alleging that the husband was in arrears in the child-support payments and alimony payments due under the February 28, 2001, judgment. The trial court treated the husband’s motion and the wife’s “cross-motion” as two separate causes of action and set the hearing on the husband’s Rule 60(b) motion for May 10, 2001. The husband filed a motion to continue the hearing for 90 days, asserting that his job required him to be in California until September 30, 2001. He stated that, in order to produce the requested documents stored in Texas, the husband needed time to return to Texas to gather the documents and to procure deposition testimony from Texas witnesses, who would be unable to come to Mobile.

The trial court granted a continuance until June 21, 2001, and denied the husband’s motion for a continuance and protective order filed on June 14, 2001. At the June 21, 2001, hearing the trial court allowed counsel for both parties to argue their pending motions. On June 29, 2001, the trial court entered an order denying all of the husband’s motions and setting the wife’s motion for rule nisi for a hearing on October 22, 2001. The husband filed this timely appeal of the denial of his Rule 60(b) motion on August 7, 2001.

The husband argues two points of error on appeal. First, the husband questions the trial court’s jurisdiction to enter a judgment against him. Second, the husband alleges the trial court abused its discretion when it denied his motion for a continuance and his Rule 60(b) motion. The wife did not file a brief on appeal.

A thorough review of the sparse record leaves this court with little more to review than the pleadings and the judgment. The only transcript included in the record is of the June 21, 2001, hearing on the husband’s Rule 60(b) motion. For a trial court to gain ■ jurisdiction over the marital res, the complaining party must have been a resident of Alabama for six months before filing a complaint of divorce. See § 30-2-5, Ala.Code 1975; Sena v. Sena, 709 So.2d 48, 50 (Ala.Civ.App.1998). Without proof of residency, the trial court does not acquire jurisdiction over the complaining party and the marital res. See Seymour v. Seymour, 597 So.2d 1368 (Ala.Civ.App.1992). The only evidence to support the wife’s assertion of residency is found in her motion for a restraining order and for temporary custody. There she alleges that she moved to Alabama in January 2000. She then relates a vague account of traveling to Texas in June 2000 “for the purpose of summer visitation.” She alleges that she subsequently “escaped” from the husband and returned to Alabama, but returned for the son in August, whereupon the husband forced her to move to California with him. She alleges that after a period, she was able to bring her son back to Alabama before she filed her complaint on October 18, 2000. While the wife may have established residency in Alabama between January and June 2000, the record does not indicate that she was “a bona fide resident of this state for six months next before the filing of the complaint” on October 18, 2000. § 30-2-5, Ala.Code 1975.

The only mention in the record on appeal of possible jurisdiction is the first statement in the divorce judgment that the cause was submitted “on the pleadings and the testimony as heard in open court.” There is no other indication that the trial court conducted a hearing or that it entertained any documentation of proof of the ■wife’s residency. Because the husband initially asserted to the trial court the alleged lack of jurisdiction in his December 1, 2000, letter, and because an appellate court must review jurisdictional matters ex mero motu, we must reverse the judgment entered by the trial court on February 28, 2001, and remand the case for the trial court to dismiss the wife’s divorce complaint.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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