author: HOUSTON, Justice. JOHNSTONE, Justice

text:
    KID’S CARE, INC., et al. v. ALABAMA DEPARTMENT OF HUMAN RESOURCES et al.
    1011272.
    Supreme Court of Alabama.
    Aug. 30, 2002.

      Josh 0. Kelly III, Huntsville, for appellants.
    William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and James E. Long, asst. atty. gen., Department of Human Resources, for appellees.
   HOUSTON, Justice.

This is an appeal by Kid’s Care, Inc., and Rainbow Daycare Center, Inc. (“the plaintiffs”), from a summary judgment in favor of the defendants Alabama Department of Human Resources (“DHR”) and its commissioner, Bill Fuller, and DHR employees Frances Arnold and Margaret Bonham, individually, and in their official capacities, on all claims. In their brief, the plaintiffs claim that they are “seeking a reversal and remand of the case only upon those portions of the complaint seeking to compel the defendants to perform the statutorily required annual market rate study surveys for the years 1998, 1999, 2000.” (Emphasis added.)

The plaintiffs operate day-care centers and receive federal and state subsidies for some of the children in their centers to help offset the cost of day care for those children. In their brief to this Court, the plaintiffs state the following facts:

“Over the years, annual adjustments to the reimbursement rates provided to the day care operators have supposedly [been] made based upon the results of annual new market rate surveys that have been performed. These surveys are sent to actual day care providers in the state of Alabama to ascertain their actual costs of providing day care services to the subsidy recipient children. (C. 262-271.)
“Alabama Act 98-496 being the General Fund Budget Act, for the 1999 forthcoming fiscal year requires that such a local market rate survey shall be established on a biennial basis based upon a representative sample of licensed childcare providers. (C. 267.) Similarly, Alabama Act 99-441 being the General Fund [Budget] Act for the forthcoming 2000 fiscal year requires that the local market rate study survey be performed, but on an annual basis. It too provides that a representative sample of licensed childcare providers be used and that the reimbursement rates be established at the 75th percentile of the market rate study survey. (C. 264.) Finally, Alabama Act 2000-408 requires the same annual local market rate study survey and 75th percentile rate adjustment. (C. 263.)
“After this lawsuit was filed the Alabama Legislature for reasons unknown, removed the requirement for the annual market rate study survey and resulting adjustment from Appropriations Act, 2001-521 for the fiscal year ending in 2002. (C. 360-361.)”

(Appellants’ brief at pp. 9-10.)

Act No. 98-496, Act No. 99-441, and Act No. 2000-408 contain the same provision regarding the reimbursement to child-care providers for child-care services. That provision reads as follows:

“Child care providers shall be reimbursed for child care services at their published rate for the particular category of care or at the 75th percentile of the local market rate, whichever is less. The local market rate shall be established on an annual basis based on a representative sample of licensed child care providers.”

(Emphasis added.)

The plaintiffs allege that they are child-care providers. They do not state whether they have been reimbursed for child-care services at “their published rate for the particular category of care” or at “the 75th percentile of the local market rate.” Because they are entitled to only the lesser sum of those two rates, we cannot ascertain how they could be injured by the failure of the DHR or its employees to establish the local market rate.

The plaintiffs’ standing is an essential component of justiciability:

“Not all controversies, even very public ones, are justiciable. Justiciability is a compound concept, composed of a number of distinct elements. Chief among these elements is the requirement that a plaintiff have ‘standing to invoke the power of the court in his behalf.’ Ex parte Izundu, 568 So.2d 771, 772 (Ala.1990).”

Ex parte State ex rel. James, 711 So.2d 952, 960 (Ala.1998).

“[SJince the question of standing goes to this Court’s jurisdiction, we must decide the issue even though the court below passed over it without comment.”

Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969) (citation omitted).

Standing requires injury in fact. This Court stated in State v. Property at 2018 Rainbow Drive, 740 So.2d 1025 (Ala.1999):

“Standing ... turns on ‘whether the party has been injured in fact and whether the injury is to a legally protected right’ Romer v. Board of County Comm’rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998) (Kourlis, J., dissenting) (emphasis added [in Property at 2018 Rainbow Drive]). See also NAACP v. Town of East Haven, 892 F.Supp. 46 (D.Conn.1995)....
“When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction. Barshop v. Medina County Underground Water Conservation District, 925 S.W.2d 618, 626 (Tex.1996) (‘Standing is a necessary component of subject matter jurisdiction’). See also Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997); Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); United States v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995) (“‘standing ‘is perhaps the most important of [the jurisdictional] doctrines’ ” ’); National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994) (‘Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation.’); Romer v. Board of County Comm’rs of the County of Pueblo, supra, 956 P.2d at 585 (‘standing is a jurisdictional prerequisite to every case and may be raised at any stage of the proceedings’) (Martinez, J., dissenting); Cotton v. Steele, 255 Neb. 892, 587 N.W.2d 693 (1999).”

740 So.2d at 1027-28.

“If a named plaintiff has not been injured by the wrong alleged in the complaint, then no case or controversy is presented and the plaintiff has no standing to sue either on his own behalf or on behalf of a class.” Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1137 (Ala.1998); see also Ex parte Blue Cross & Blue Shield of Alabama, 582 So.2d 469, 474 (Ala.1991). A party’s injury must be “tangible,” see Reid v. City of Birmingham, 274 Ala. 629, 639, 150 So.2d 735, 744 (1963); and a party must have “a concrete stake in the outcome of the court’s decision.” Brown Mech. Contractors, Inc. v. Centennial Ins. Co., 431 So.2d 932, 937 (Ala.1983).

We fail to see how the plaintiffs have been injured. The DHR was to establish the local market rate for child-care services either annually or every two years (depending upon which of the three appropriation acts is involved); it failed to do so. What tangible, concrete injury did this failure afflict on the plaintiffs?

For all that appears in the record, the plaintiffs were reimbursed by DHR at their published rates for child-care services. If 75% of the local market rate was above their published rates, then their rates would remain the same. If 75% of the local market rate was below their published rates, then their reimbursement would decrease, because they can be paid only the lesser of the two rates. Nothing in the record shows that the local market rate survey specified in the budget acts had anything to do with the published rates of the plaintiffs or any child-care provider.

Because we resolve this action on the plaintiffs’ lack of standing and the trial court’s resultant lack of jurisdiction, there is no need for us to discuss the immunity issue.

The trial court lacked jurisdiction to enter its summary judgment, and that judgment is void. A void judgment will not support an appeal.

APPEAL DISMISSED.

MOORE, C.J., and SEE, LYONS, BROWN, HARWOOD, and STUART, JJ., concur.

JOHNSTONE and WOODALL, JJ., dissent.

JOHNSTONE, Justice

(dissenting).

For two reasons, I respectfully dissent.

First, the main opinion contravenes our law that a complaint will be construed most favorably to the pleader. Poff v. Hayes, 763 So.2d 234, 241 (Ala.2000); Waters v. Jolly, 582 So.2d 1048, 1055 (Ala.1991) (“In order to do substantial justice, pleadings are to be construed liberally in favor of the pleader.”). See also Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993) (In reviewing the dismissal of a plaintiffs complaint pursuant to Rule 12(b)(6), Ala. R. Civ. P., this Court must determine “whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief.... In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether he may possibly prevail.... We note that a Rule 12(b)(6) 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.”). Implicit in the complaint is that the local market rate, which the defendants are supposed to survey, is the rate which limits the plaintiffs’ reimbursement.

Second, the main opinion exceeds the scope of our Smith v. Equifax, 537 So.2d 463 (Ala.1988), rule that we will sustain the trial court for any right reason supported by the record. The plaintiffs have never received any notice that an issue in this case would be the absence of an express allegation that the local market rate limits the plaintiffs’ reimbursement.

      . See Act No. 98-496, Ala. Acts 1998, § 2C.82(a); Act No. 99-441, Ala. Acts 1999, § 2C.83(a); and Act No. 2000-408, Ala. Acts 2000, § 2C.80(a).


source: Caselaw Access Project

author: SEE, Justice. WOODALL, Justice

license: Public Domain

text:
    CITY OF HUNTSVILLE v. Sheila TACK et al.
    1010459.
    Supreme Court of Alabama.
    Aug. 30, 2002.
    Michael L. Fees and C. Gregory Burgess of Fees & Burgess, P.C., Huntsville, for appellant.
    Mickey J. Gentle, Huntsville; and John Philip Gray, Montgomery, for appellees.
    C. Michael Seibert, Huntsville, for ami-cus curiae Washington Animal Foundation, Inc.
   SEE, Justice.

AFFIRMED. NO OPINION.

See Rule 53(a)(2)(l) and (a)(2)(F), Ala. R.App. P.

HOUSTON, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.

MOORE, C.J., and WOODALL, J„ dissent.

WOODALL, Justice

(dissenting).

“An intervenor must have a direct, substantial, and legally protectable interest in the proceeding.” State Highway Dep’t v. Parsons, 623 So.2d 285, 290 (Ala.1993). I am convinced that Sheila Tack, Loyce Fisher, and Katherine Nagel had no such interest in this proceeding. Therefore, I must conclude that the trial court erred in granting their Ala. R. Civ. P. 24(b)(2) motion for permissive intervention. I respectfully dissent.

MOORE, C.J., concurs.


author: LYONS, Justice. MOORE, Chief Justice

text:
    Ex parte Terry LITTLE. (In re Terry Little v. State of Alabama).
    1011563.
    Supreme Court of Alabama.
    Aug. 30, 2002.
    Terry Little, pro se.
    Submitted on petitioner’s brief only.
   LYONS, Justice.

WRIT DENIED. NO OPINION.

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

MOORE, C.J., concurs specially.

MOORE, Chief Justice

(concurring specially).

I fully agree with the denial of the petition for certiorari in this case. I write separately simply to make it clear that Act No. 2001-977, Ala. Acts 2001, effective December 1, 2001, permits § 13A. — 5—9(c)(3), Ala.Code 1975, to be applied retroactively “based on evaluations performed by the Department of Corrections and approved by the Board of Pardons and Paroles and submitted to the court.” Terry Little did not submit to the court “evaluations performed by the Department of Corrections.”


author: STUART, Justice. HOUSTON, Justice

text:
    Roy BLACK et al. v. STATE of Alabama et al.
    1010599.
    Supreme Court of Alabama.
    Aug. 30, 2002.
    William Robert McMillan, Monroeville; and Mickey Womble, Monroeville, for appellants.
    William H. Pryor, Jr., atty. gen., and Alyee S. Robertson .and Lavette Lyas-Brown, asst, attys. gen., for appellees.
    William Anthony Davis III and P. Andrew Laird, Jr., of Starnes & Atchison, L.L.P., Birmingham, for appellee City of Mountain Brook.
    Russell B. Robertson of Laird & Robertson, P.C., Jasper, for appellee City of Jasper.
    William C. Roedder, Jr., and Richard M. Gaal of McDowell, Knight, Roedder & Sledge, L.L.C., Mobile, for appellees City of Alabaster, City of Auburn, and City of Tuskegee.
   STUART, Justice.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(E), Ala. R.App. P.

MOORE, C.J., and LYONS, BROWN, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

HOUSTON and SEE, JJ., concur specially.

HOUSTON, Justice

(concurring specially).

The plaintiffs waived an objection to the fees imposed against them pursuant to the Alabama Investment in Justice Act of 1999, Act No. 99-427, Ala. Acts 1999 (“the Act”), by failing to challenge the fees in the courts that imposed them on the plaintiffs.

In Barnes v. State, 274 Ala. 705, 711, 151 So.2d 619, 624 (1963), this Court wrote:

“It was stated by the Court in Vernon v. State, 240 Ala. 577, 200 So. 560 [ (1941) ], cert. denied, Vernon v. Wilson, 313 U.S. 559, 61 S.Ct. 837, 85 L.Ed. 1519 [ (1941) ]:
“ ‘So also, ... one may waive and does waive his constitutional rights if he fails to assert or claim them at the appropriate time and place and according to the established course of procedure.’
“In Alabama Cartage Co., Inc. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen, 250 Ala. 372, 34 So.2d 576 [ (1948) ], 2 A.L.R.2d 1273, the following statement of the rule of waiver was approved:
“ ‘ “A party may waive a rule of law or a statute, or even a constitutional provision enacted for his benefit or protection, where it is exclusively a matter of private right, and no considerations of public policy or morals are involved, and, having once done so, he cannot subsequently invoke its protection.” ’
“Appellee having failed to assert his rights before the Board, ... those constitutional rights, if any, which were denied by the Board are deemed to have been waived forever.”

Therefore, I do not believe that we can reach the issue whether the fees added to the court costs for offenses committed pri- or to the effective date of the Act violated the ex post facto provision of the United States or Alabama Constitutions.

SEE, J., concurs.


author:
CRAWLEY, Judge. MURDOCK, Judge, CRAWLEY, Judge.
      MURDOCK, Judge,

text:
    APEX COAL CORPORATION, Van American Insurance Company, and Clarendon National Insurance Company v. ALABAMA SURFACE MINING COMMISSION and Gulf States Paper Corporation.
    2991244 and 2991245.
    Court of Civil Appeals of Alabama.
    April 6, 2001.
    Dissenting Opinion on Overruling of Rehearing July 13, 2001.

      Alton B. Parker, Jr., and Peter M. Wright of Spain & Gillon, L.L.C., Birmingham, for appellants.
    G. Milton McCarthy, asst. atty. gen., Jasper, for appellee Alabama Surface Mining Commission.
    H. Thomas Wells, Jr., Jeffrey A. Lee, and Stuart D. Roberts of Maynard, Cooper 6 Gale, P.C., Birmingham, for appellee Gulf States Paper Corporation.
   CRAWLEY, Judge.

Apex Coal Corporation and Warco, Inc., entered into a mining-services contract in September 1985. The agreement provided that Apex would extract coal on land owned by Warco. Warco was the predecessor corporation of Gulf States Paper Corporation, which in October 1985 assumed Warco’s rights and liabilities created by the contract. From April 1992 to December 1992, Van American Insurance Company and Clarendon National Insurance Company (the “sureties”) posted 14 performance bonds for the mining operations performed by Apex, pursuant to the Alabama Surface Mining Control and Reclamation Act (“ASMCRA”), Ala.Code 1975, §§ 9-16-70 to -107. The Alabama Surface Mining Commission issued three mining permits to Apex for surface mining on land owned or leased by Gulf States. Each permit related to several individual mining areas, called “increments.” Apex had a total of 14 increments; hence, 14 bonds were required.

Apex was initially financially successful, but later it experienced financial difficulties. Apex eventually filed for Chapter 11 bankruptcy protection. Apex continued to mine and to comply with the Commission’s reclamation requirements. Apex converted the Chapter 11 proceeding to a Chapter 7 liquidation and ceased its mining operations. The Commission issued several citations to Apex, citing it for not complying with the reclamation requirements.

Eventually, the Commission issued a “show cause” order to Apex and to the sureties, requesting them to show cause why the bonds should not be forfeited as to two of the three permits. Apex and the sureties filed a response and requested a hearing before the Commission’s division of hearings and appeals. Apex and the sureties also filed a motion, requesting that the Commission issue a “show cause” order to Gulf States. Apex and the sureties argued before the Commission that Gulf States was also liable for the reclamation of the lands. Apex and the sureties argued that § 9-16-95 provided them a cause of action against Gulf States. The Commission’s hearings division denied this request and ordered that the bonds be forfeited.

The Commission issued a “show cause” order as to the third permit. Apex and the sureties made no response, and the Commission’s hearing division entered a default and ordered the forfeiture of the bonds related to the third permit.

Apex and the sureties appealed the Commission’s two orders of forfeiture, to the circuit court; that court consolidated the cases for discovery purposes. The Commission and Gulf States each filed a summary-judgment motion as to both orders of forfeiture and as to the standing of Apex and the sureties to sue Gulf States, pursuant to § 9-16-95. The circuit court granted all of the summary-judgment motions. Apex and the sureties appealed to the supreme court, which transferred the appeals to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

We review a summary judgment de novo; we apply the same standard as was applied in the circuit court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A 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 [it] is entitled to a judgment as a matter of law.” Rule 56(c); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). 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, 592 So.2d at 1038. “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); see Ala.Code 1975, § 12-21-12(d). See West, 547 So.2d at 871, and Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989), for a further discussion of the application of the summary-judgment standard.

Apex and the sureties do not dispute that Apex failed to reclaim the land as required by the ASMCRA. They argue that the Commission should have found that Gulf States violated the Act and should have held it jointly liable, along with Apex, for violating the Act. They argue that Apex was acting as an agent of Gulf States and that Gulf States, as Apex’s principal, is liable for Apex’s noncompliance with the Act. Gulf States and the Commission contend that whether Gulf States committed any violation of the ASMCRA is irrelevant to the question whether the sureties are liable. They argue that the sureties are unconditionally liable for Apex’s noncompliance with the Act and, because it is undisputed that Apex did not comply with the Act, that the Commission properly ordered the forfeiture of the bonds.

The Commission issued the surface-mining permits to Apex, pursuant to the Alabama Surface Mining Regulations, Ala. Admin. Code § 880-X-8B-.01 et seq. The Commission never issued a permit to Gulf States; therefore, Gulf States is not a “permittee,” as that term is defined by § 880-X-2A-.06(116). The sureties entered into surety contracts by which they assumed responsibility for Apex’s compliance with the ASMCRA. The sureties had no such contracts with Gulf States.

We agree with Gulf States and the Commission that the relationship between Gulf States and Apex is irrelevant to a question of the sureties’ liability. It is well settled that a surety’s liability is a primary liability, not contingent on any event other than its principal’s liability and not contingent upon the principal’s relationship with third parties, such as Apex’s relationship with Gulf States. See Ex parte Water Works Bd. of Gulf Shores, 508 So.2d 242 (Ala.1987); Rowe v. Bank of New Brockton, 207 Ala. 384, 92 So. 643 (1922); Averyt Drug Co. v. Ely-Robertson-Barlow Drug Co., 194 Ala. 507, 69 So. 931 (1915); and Dampskibsaktieselskabet Habil v. United States Fid. & Guar. Co., 142 Ala. 363, 39 So. 54 (1905). Here, the sureties are the sureties for Apex’s compliance with the ASMCRA. It is undisputed that Apex ceased to comply with the ASMCRA; therefore, the circuit court properly concluded that, as a matter of law, the sureties are liable for Apex’s noncompliance.

Apex and the sureties also argue that the Commission erred and the circuit court erred by ordering the forfeiture of the bonds without first giving them the opportunity to perform the reclamation requirements. Section 9—16—93(d) sets out the procedure once the Commission finds that a holder of a surface-mining permit, such as Apex, is violating the Act:

“When, on the basis of an inspection, the regulatory authority or its authorized representative determines that a pattern of violations of any requirements of this article or any permit conditions exists or has existed, and if the regulatory authority or its authorized representative also find that such violations are caused by the unwarranted failure of the permittee to comply with any requirements of this article or any permit conditions, or that such violations are willfully caused by the permittee, the regulatory authority or its authorized representative shall forthwith issue an order to show cause as to why the permit should not be suspended or revoked and shall provide opportunity for a public hearing before a hearing officer pursuant to sections 9-16-78 and 9-16-79 of this article. If a hearing is requested, the hearing officer shall inform all interested parties of the time and place of the hearing. Upon the permittee’s failure to show cause as to why the permit should not be suspended or revoked, the hearing officer shall forthwith suspend or revoke the permit. If the hearing officer revokes the permit, the permittee shall immediately cease surface coal mining operations on the permit area and shall complete reclamation within a period specified by the hearing officer or the hearing officer shall declare as forfeited the performance bonds for the operation.”

As stated above, the Commission first sent Apex and the sureties notice of Apex’s violations. Then, the Commission issued “show cause” orders that required Apex and the sureties to show cause why the permits should not be revoked and to provide a reclamation plan. Apex and the sureties responded to the first “show cause” orders as to two of the permits by arguing that Gulf States was liable for the reclamation. As to the “show cause” order related to the third permit, Apex and the sureties made no response.

In his special writing, Judge Murdock points out that the show cause orders gave Apex and the sureties a choice of paying the bonds to the Commission within 30 days or submitting a reclamation plan. Apex and the sureties did not comply with the show cause orders. The Commission then entered an order declaring the bonds forfeited or requiring Apex and the sureties to submit a reclamation plan subject to its approval by the Commission. Apex and the sureties then appealed to the circuit court. We conclude that because Apex and the sureties never submitted a reclamation plan for the Commission’s approval, it waived its right to submit a plan once it appealed the Commission’s order. Section 9-16-93(d) provides that if no reclamation plan is submitted, then forfeiture of the bonds is the only recourse. If Apex and the sureties had submitted a reclamation plan which the Commission did not approve, then the circuit court could have reviewed the Commission’s denial of the plan. Because Apex and the sureties never submitted a reclamation plan for the Commission’s approval, then the circuit court could only affirm the Commission’s order on the only relief available to Apex and the sureties — forfeiture of the performance bonds in accordance with § 9 — 16— 93(d).

Last, Apex and the sureties argue that the sureties have a cause of action against Gulf States pursuant to § 9-16-95. That section reads:

“(a) Except as provided in subsection (b) of this section, any person having an interest which is or may be adversely affected, (or any citizen of this state having knowledge that any of the provisions of this article are willfully or deliberately not being enforced and who files a statement with the regulatory authority in writing and under oath with facts set forth specifically stating the nature of the failure to enforce the provisions of this article), may commence a civil action on his own behalf to compel compliance with this article:
“(1) Against any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution of the United States which is alleged to be in violation of the provisions of this article or of any rule, regulation, order or permit issued pursuant thereto, or against any other person who is alleged to be in violation of any rule, regulation, order or permit issued pursuant to this article; or
“(2) Against the regulatory authority to the extent permitted by the eleventh amendment to the Constitution of the United States where there is alleged a failure of the regulatory authority to perform any act or duty under this article which is not discretionary with the regulatory authority.
“In a civil action brought pursuant to this subsection, the cause shall be tried in the circuit court with jurisdiction over the location of the regulatory authority’s principal office, except that in a civil action brought against any person pursuant to subdivision (1) of this subsection, the cause shall be tried in the circuit court of the county where the alleged violation occurred and the action in either case shall be prosecuted in the name of the real party in interest.
“(b) No action may be commenced:
“(1) Under subdivision (a)(1) of this section:
“a. Prior to 60 days after the plaintiff has given notice in writing of the violation (i) to the regulatory authority, (ii) to the secretary of the interior, and (iii) to any alleged violator; or
“b. If the secretary of the interi- or, or the regulatory authority, has commenced and is diligently prosecuting a civil action to require compliance with the provisions of this article, or any rule, regulation, order, or permit issued pursuant to this article. In any such action in a court of the United States any person may intervene as a matter of right; or
“(2) Under subdivision (a)(2) of this section prior to 60 days after the plaintiff has given notice in writing of such action to the regulatory authority in such manner as the regulatory authority by regulation shall prescribe except that such action may be brought immediately after such notification in the case where the violation or order complained of constitutes an imminent threat to the health or safety of the plaintiff or would immediately affect a legal interest of the plaintiff.
“(c) In such action under this section, the regulatory authority or the secretary of the interior if not parties, may intervene as a matter of right.
“(d) The court, in issuing any final order in any action brought pursuant to subsection (a) of this section, may award costs of litigation (including attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. The court shall, if a temporary restraining order or preliminary injunction is sought require the filing of a bond or equivalent security in accordance with the Alabama rules of civil procedure.
“(e) Nothing in this section shall restrict any right with any person (or class of persons) may have under any statute or common law to seek enforcement of any of the provisions of this article and the regulations thereunder, or to seek any other relief, including relief against the regulatory authority, as permitted by the Constitution and laws of' this state.
“(f) Any person who is injured in his person or property through the violation by any operator of any rule, regulation, order, or permit issued pursuant to this article may bring an action for damages in the venue available under Alabama law. The court may award reasonable attorney and expert witness fees to the prevailing party. Nothing in this subsection shall affect the rights established by or limits imposed under state workmen’s compensation laws.”

The sureties argue that they have a cause of action against Gulf States pursuant to this statute. The sureties argue that they are “person[s] who [are] injured in [their] person or property through the violation by any operator.” They argue that Gulf States is an “operator” as that term is defined by the ASMCRA and that Gulf States’ noncompliance with the Act resulted in the forfeiture of the bonds they executed on behalf of Apex. We conclude that the sureties do not have standing to bring an action pursuant to § 9-16-95.

No Alabama court has interpreted § 9-16-95 to determine who is entitled to institute an action under subsection (a) or subsection (f). The United States District Court for the Eastern District of Kentucky interpreted 30 U.S.C.A. § 1270, a provision of the Federal Surface Mining Control and Reclamation Act (the “SMCRA”) parallel to § 9-16-95. United States v. Gorman Fuel, Inc., 716 F.Supp. 991 (E.D.Ky.1989). That court explained that § 1270 is a citizen-suit provision based on the citizen-suit provisions of the Clean Air Act (the “CAA”) and the Federal Water Pollution Control Act (the “FWPCA”). 716 F.Supp. at 994. The court stated:

“Legislative history concerning these citizen suit provisions makes clear that the provisions are designed to allow private individuals to prod the agency into acting against violators, or to allow private individuals themselves to bring actions against violators. Thus the legislative history of the citizen suit provision of the CAA and the FWPCA also support this Court’s interpretation that members of the regulated industry are not ‘any person’ for purposes of the citizen suit provision.
“SMCRA’s legislative history clearly states that the purpose of the citizen suit provision is to encourage participation by private citizens in the enforcement of the Act’s provisions.
“ ‘. [T]he participation of private citizens is a vital factor in the regulatory provision as established by the Act.’
“H.R.Rep. No. 896, 94th Cong., 2nd Sess. 39 (1976). Thus, according to the legislative history ‘any person’ means ‘private citizens.’ The Court interprets the phrase ‘private citizens’ in the most straightforward and logical way to mean those outside the regulatory and enforcement scheme of SMCRA. Thus ‘private citizens’ are those who are neither the regulatory agency (the Office of Surface Mining Reclamation and Enforcement) nor members of the regulated industry (the coal industry). To allow members of the coal industry to challenge an agency determination via a citizen suit could, in some cases, lead to the anomalous result of the citizen suit provision’s being used to weaken agency enforcement, rather than strengthen it.”

Id.

We adopt the reasoning of the Eastern District of Kentucky and agree-that a member of the coal industry is not a “private citizen” and cannot be allowed to challenge the actions of the Commission. We recognize that the sureties are not in the business of mining coal; however, they have contracted to indemnify Apex, a member of the coal industry. As stated above, the sureties’ liability for Apex’s compliance with the ASMCRA is a primary liability (see Ex parte Water Works Bd. of Gulf Shores, 508 So.2d 242 (Ala.1987); Rowe v. Bank of New Brockton, 207 Ala. 384, 92 So. 643 (1922); Averyt Drug Co. v. Ely-Robertson-Barlow Drug Co., 194 Ala. 507, 69 So. 981 (1915); and Dampskibsaktieselskabet Habil v. United States Fid. & Guar. Co., 142 Ala. 363, 39 So. 54 (1905)). Because the sureties are assuming the liability of Apex, they, just like Apex, which was a member of the coal industry, do not have standing to file a “citizen suit” under § 9-16-95 against Gulf States.

We conclude that the circuit court properly entered the summary judgment for the Commission and Gulf States. We affirm that judgment.

AFFIRMED.

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

MURDOCK, J., concurs in part and dissents in part.

MURDOCK, Judge,

concurring in part and dissenting in part.

I concur with the majority’s opinion except insofar as it upholds the circuit court’s order requiring, in essence, immediate payment by the sureties of a monetary judgment of $746,740. I see no legal basis for the trial court to have gone any further than simply upholding the relief ordered by the Alabama Surface Mining Commission.

The Alabama Surface Mining Act, § 9-16-1 et seq., Ala.Code 1975, provides, in relevant part, as follows, with respect to revocation of an operator’s permit because of violations such as those found by the Commission:

“If the [Commission’s] hearing officer revokes the permit, the permittee shall immediately cease surface coal mining operations on the permit area and shall complete reclamation within a period specified by the hearing officer or the hearing officer shall declare as forfeited the performance bonds for the operation.”

Ala.Code 1975, § 9-16-93(d).

Rule 880-X-9E-.02(3), Ala. Admin. Code, one of the regulations promulgated pursuant to the Alabama Surface Mining Act, provides that the Commission “may allow the surety to complete the reclamation” if the surety can demonstrate the ability to do so. Rule 880-X-9E-.04(l)(c), Ala. Admin. Code, provides:

“A bond shall be forfeited, if the State Regulatory Agency finds that—
“(c) The permit for the area under the bond has been revoked, unless the operator or surety assumes liability for completion of the reclamation work and is, in the opinion of the State Regulatory Authority, diligently and satisfactorily performing such work.”

Consistent with the applicable law and regulations, the Commission issued orders to show cause that provided, in pertinent part:

“That in the event APEX COAL CORPORATION fails to show cause why the permit should not be suspended or revoked and the performance bond(s) forfeited, the surety company shall make payment to the Commission ... within thirty (30) days or submit a detailed reclamation timetable outlining the immediate steps for reclamation of the area, subject to approval by the Commission and the Funds shall be transferred into the Alabama Surface Mining Fund and designated for reclamation of the areas.”

(Emphasis added.) On administrative appeal, the Commission’s Division of Hearings and Appeals also gave the sureties the right to submit a reclamation plan in lieu of forfeiture of moneys under the bonds, by ordering as follows:

“[T]he surety company shall make payment to the Commission within 30 days or submit a detailed reclamation timetable outlining the immediate steps for reclamation of the area subject to the approval of the Commission.”

(Emphasis added.) This latter order became the final order of the Commission when it denied the sureties’ petition for further review (Ala.Code 1975, § 9 — 16— 79(3)a.), and it is the order from which appeals were taken to the circuit court (Ala.Code 1975, § 9-16-79(4)b.).

The appeals to the circuit court were taken by Apex and the sureties. On appeal, the issue before the circuit court was whether the final order of the Commission was “reasonable” and “lawful.” Ala.Code 1975, § 9-16-79(6). If not, or if the trial court determined that the clear preponderance of the evidence supported a different result, the cases were to be “remanded to the regulatory authority for further proceedings.” Id.

The trial court obviously found, and I agree, that the final order of the Commission was reasonable and lawful, and supported by the evidence. Indeed, the trial court expressly ordered that the Commission’s administrative orders were “affirmed.”

In affirming the administrative orders, however, the trial court described them as simply “orders declaring forfeit the several Clarendon reclamation bonds.” As discussed, the administrative orders in question actually required the sureties either to forfeit a monetary payment under the bonds or to immediately pursue reclamation plans. Perhaps as a result of the trial court’s abbreviated description of the relief that had been included in the administrative orders, it proceeded to restrict the relief in its own summary-judgment order to only the payment of monetary proceeds under the bonds.

There was no cross-appeal to the circuit court by either of the appellees as to that portion of the Commission’s order giving the sureties the option of filing a reclamation plan rather than making an immediate monetary payment under the bonds. Even had such a cross-appeal been filed, I see no basis in the law or the record for concluding that the Commission’s final order allowing the sureties the option of reclamation was unreasonable or unlawful, or that the clear preponderance of the evidence required • a different result. Thus, to the extent the trial court denied the sureties the option of pursuing reclamation, it erred.

The Commission urges this court to uphold the trial court’s summary judgment against the sureties on the ground that the sureties allegedly “waived” the option of reclaiming the property. According to the Commission, the sureties committed this waiver when they refused to commence reclamation of the properties after the Commission had issued its initial show-eause orders.

In its discussion of this issue, the majority characterizes the initial show-cause orders as giving the sureties “a choice” of either paying the moneys due under the bonds or submitting a reclamation plan. The majority then states that “the sureties did not comply with the show cause orders” and that the Commission therefore declared the bonds “forfeited.”

In one sense, the majority is right when it states that the sureties did not comply with the show-cause orders. Instead, they did what they had every right to do: they “appealed” the show-cause orders to the Commission’s Division of Hearings and Appeals. Ala.Code 1975, § 9-16-79(1). In actuality, however, the very show-cause orders with which the sureties allegedly did not “comply” included a notice that the sureties had “the right to request a hearing before the Division of Hearings and Appeals of the Alabama Surface Mining Commission on all matters contained herein.” It cannot fairly be said that the sureties did not comply with the show-cause orders, when they “appealed” those orders, as they had a right to do, under the statute and under the orders themselves.

Furthermore, after considering the appeals of the sureties, the Commission, acting through its Division of Hearings and Appeals, merely reaffirmed the same alternative relief described in the show-cause orders. The Commission did not draw any conclusion that Apex had waived the option of reclaiming the property; nor did it order the bonds “forfeited” in the sense of requiring an immediate monetary payment. To the contrary, the Commission’s final orders employed the exact same language as the show-cause orders, providing merely that

“the surety company shall make payment to the Commission within 30 days or submit a detailed reclamation timetable outlining the immediate steps for reclamation of the area subject to the approval of the Commission.”

(Emphasis added.)

The majority concludes that, following the issuance of the Commission’s final orders, the sureties “waived” any option of reclaiming the property by not beginning reclamation during the pendency of the appeals of those orders. It is the Commission’s administrative orders, however, that imposed upon the sureties the obligation to engage in such reclamation. It is the Commission’s final administrative orders, and their precursors (the show-cause orders), from which the sureties have consistently and timely appealed, hoping to relieve themselves of such obligation. The sureties had the right to appeal to the circuit court from the Commission’s final administrative orders. Ala.Code 1975, § 9-16-79(4). To hold that a party commits waiver by not fulfilling an obligation imposed on that party by an order from which it has taken a timely and lawful appeal effectively would negate the right to appeal from that order. I therefore see no waiver.

Accordingly, I would reverse the trial court’s summary judgment to the extent it went beyond the relief set out in the final orders of the Commission, and would remand the cases for the trial court to amend its summary judgment in a manner consistent with this special opinion.

On Application for Rehearing

CRAWLEY, Judge.

APPLICATION OVERRULED.

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

MURDOCK, J., dissents.

MURDOCK, Judge,

dissenting.

I dissent from the overruling of the application for rehearing.

When this court considered this case initially, I dissented from that portion of the majority’s opinion which upholds the circuit court’s order requiring, in essence, immediate payment by the sureties of a monetary judgment of $746,740. I concurred with the majority’s opinion as to the remainder of the issues raised on appeal. Upon further reflection, if I were today voting for the first time, I would concur only in the result reached by the majority’s opinion as to those other issues.

      . I find no record of this argument having been made to the trial court, nor any mention of it in the trial court's order. Nor does the Commission cite any authority for the proposition that failure to perform one of two alternative actions required by an administrative order during the pendency of an appeal from that very order constitutes a waiver of the right to satisfy that order by performing such action in the event the appeal is unsuccessful. See generally Rule 28, Ala. R.App. P.

      . If any waiver occurred, it was on the part of the Commission in not pursuing enforcement of its orders during the pendency of the sureties' appeals, since there was no supersedeas.


author: STUART, Justice. JOHNSTONE, Justice

text:
    Ex parte VAN AMERICAN INSURANCE COMPANY and Clarendon National Insurance Company. (In re Apex Coal Corporation, Van American Insurance Company, and Clarendon National Insurance Company v. Alabama Surface Mining Commission and Gulf States Paper Corporation).
    1001928.
    Supreme Court of Alabama.
    June 28, 2002.

      Alton B. Parker, Jr., and Norman M. Orr of Spain & Gillon, L.L.C., Birmingham, for petitioners.
    G. Milton McCarthy, asst. atty. gen., for respondent Alabama Surface Mining Commission.
    H. Thomas Wells, Jeffrey A. Lee, and Stuart D. Roberts of Maynard, Cooper & Gale, P.C., Birmingham, for respondent Gulf States Paper Corporation.
   STUART, Justice.

Van American Insurance Company and Clarendon National Insurance Company (hereinafter referred to collectively as “the sureties”), appealed, on behalf of themselves and Apex Coal Corporation (“Apex”), to the Walker Circuit Court from two orders issued by the Alabama Surface Mining Commission (“the Commission”) forfeiting the sureties’ bonds because Apex failed to reclaim properties it was responsible for reclaiming after conducting mining operations on the property. The sureties, on their behalf and on behalf of Apex, sought to have Gulf States Paper Corporation (“Gulf States”), the owner of the property, held responsible for reclaiming the property pursuant to § 9-16-95, Ala. Code 1975, the citizen’s action provision of the Alabama Surface Mining Control and Reclamation Act of 1981 (“ASMCRA”), codified at §§ 9-16-70 to -170, Ala.Code 1975. The Commission and Gulf States each filed a motion for a summary judgment as to both forfeiture orders and arguing that Apex and the sureties lacked standing to sue Gulf States pursuant to § 9-16-95, Ala.Code 1975. The circuit court granted the motions for a summary judgment. Apex and the sureties appealed to this Court. We transferred the appeal to the Court of Civil Appeals pursuant to § 12-2-7(6), Ala.Code 1975. The Court of Civil Appeals affirmed the trial court’s judgment. Apex Coal Corp. v. Alabama Surface Mining Comm’n, 843 So.2d 170 (Ala.Civ.App.2001). The sureties applied for rehearing; the Court of Civil Appeals overruled the application. This Court granted certiorari review to determine whether the Court of Civil Appeals erred in affirming the circuit court’s summary-judgment order, which requires the sureties to pay the monetary amounts of the forfeited bonds and denies the sureties the right to perform the reclamation work in lieu of paying the amount of the bonds. We reverse and remand.

I.

Apex and Warco, Inc. (the predecessor corporation of Gulf States), entered into a mining-services contract in September 1985. In October 1985, Gulf States assumed Wareo’s rights and responsibilities under the contract. The Commission issued three mining permits to Apex for surface mining on land owned or leased by Gulf States. The 3 permits contained 14 mining areas or “increments,” requiring 14 bonds. The sureties posted the 14 performance bonds for the mining operations being performed by Apex, pursuant to the ASMCRA.

Apex ultimately did not comply with the reclamation requirements of the ASMC-RA. After taking certain intermediate steps that were unsuccessful in securing compliance, the Commission issued a “show cause” order to Apex and the sureties, requesting them to show cause why the bonds should not be forfeited as to two of the three permits.

The “show cause” orders issued by the Commission to Apex and the sureties pursuant to § 9 — 16—93(d), Ala.Code 1975, required Apex and the sureties to show cause why the permits should not be revoked and to provide the Commission with a reclamation plan. The orders gave Apex and the sureties a choice of paying the Commission the amount of the bonds within 30 days or submitting a reclamation plan.

The sureties, on behalf of themselves and Apex, filed a response and requested a hearing before the Commission’s division of hearings and appeals. They also filed a motion requesting that the Commission issue a “show cause” order to Gulf States. They argued that Gulf States was also liable for reclaiming the lands and that § 9-16-95, Ala.Code 1975, provided them with a cause of action against Gulf States. The Commission’s hearings division denied this request and entered orders revoking the two permits and ordering that the bonds be forfeited or, in the alternative, that Apex and/or the sureties submit to the Commission detailed reclamation plans. (The Commission also issued a “show cause” order as to the third permit. When Apex and the sureties did not respond to the show cause order, the Commission entered a default and ordered the bonds related to the permit forfeited.)

The sureties and Apex appealed the orders on the two permits to the full Commission pursuant to § 9 — 16—79(l)d., Ala. Code 1975. The Commission affirmed the hearing officer’s decisions in all respects. The Commission entered an order declaring the bonds forfeited and requiring Apex and the sureties to submit a detailed reclamation plan to the Commission for its approval. Apex and the sureties never submitted a reclamation plan.

The sureties, on behalf of themselves and Apex, appealed the orders of forfeiture as to the first two permits to the Walker Circuit Court naming as appellees the Commission and Gulf States. Apex never entered an appearance in its own behalf in the circuit court. The actions were consolidated for purposes of discovery. The Commission and Gulf States filed motions for a summary judgment, which the trial court granted, upholding the orders of forfeiture issued by the Commission. The trial court entered a monetary judgment on the bonds without allowing the sureties the opportunity to reclaim the property in question at their own expense in lieu of paying the amount of the bonds.

II.

On appeal, the sureties assert that they are entitled to reclaim the property in lieu of paying the amount of the bonds; therefore, they argue, the trial court erred in entering a money judgment in the amount of the bonds. They note that Alabama Surface Mining Commission Administrative Code, Rule 880-X-9E-02(3), provides that, in the event of default, the Commission “may allow the surety to complete the reclamation plan if the surety can demonstrate the ability to complete the reclamation plan.... ” This rule certainly allows the Commission to permit a surety to reclaim the property in lieu of paying the bond. We are also cognizant of § 9-16-79(11), which states: “[njothing in this article shall prevent the regulatory authority from making efforts to obtain voluntary compliance through warning, conference or any other appropriate means. However, nothing in this section shall be taken to negate the mandatory enforcement of Section 9-16-93.” While the statutory scheme certainly favors, it does not mandate, efforts to secure voluntary compliance with the ASMCRA requirements.

The sureties also rely on Rule 880-X-9E-.03(l)(c) of the Alabama Surface Mining Commission Administrative Code. That rule provides:

“In the event forfeiture of the bond is required by Rule 880-X-9E-.04, the State Regulatory Authority shall—
“(c) Proceed in an action for collection on the bond as provided by applicable laws for the collection of defaulted bonds or other debts, consistent with this Rule, for the amount forfeited, if an appeal is not filed within a time established by the State Regulatory Authority and a stay of collection issued by the hearing authority or such appeal is unsuccessful

(Emphasis added.) We agree that this rule prevents collection of the forfeited amounts while an appeal is pending, but we disagree with the position taken by the sureties that the rule gives the sureties the absolute right to reclaim the property in lieu of paying the amount of the bonds.

The Commission argues that Apex and the sureties forfeited their right to submit a reclamation plan for approval by the Commission and to reclaim the property as an alternative to paying the amount of the forfeited bonds. The Commission, relying upon Rule 54(c), Ala. R. Civ. P., and Massey v. Jackson, 726 So.2d 656, 659-60 (Ala.Civ.App.1998), asserts that the circuit court properly awarded a monetary judgment because in Alabama “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings.” Rule 54(c).

The Commission also argues that because the sureties have resisted all demands of the Commission either for performance or for payment on the bonds, the sureties should be found either to have waived or to be estopped from asserting any purported “right” to elect to reclaim the property in lieu of paying the bonds. We sympathize with the Commission’s concern that the delay in obtaining satisfaction of these bonds makes a mockery of the public policy of this State favoring “the just, speedy and inexpensive determination of every action.” Rule 1(c), Ala. R. Civ. P. As a matter of law, however, we must disagree with the Commission.

Absent a rule or statutory provision to the contrary, a party does not waive its rights by pursuing an appeal from an adverse ruling. Furthermore, the statutes governing the reclamation of mined properties prohibit the circuit court in an appeal from modifying the remedy established by the Commission, as we explain below. The Commission’s final order in this case, entered on April 19, 1996, provides:

“[S]aid Commission pursuant to Ala. Code § 9-16-79(3)(a) does hereby DENY said Petition for Review [filed by the sureties] and AFFIRMS the ORDER of the Hearing Officer rendered February 19,1996. ...”

The hearing officer’s order of February 19, 1996, provided, in pertinent part:

“IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that:
“A. Permit P-3563 is due to be and is hereby REVOKED.
“B. Permit P-3563 is due to be and is hereby declared FORFEITED.
“C. Bonds for permit P-3563 totaling $391,857 were issued by Van American Insurance Company and Clarendon National Insurance Company for which demand is made and the surety company shall make payment to the Commission within 30 days or submit a detailed reclamation timetable outlining the immediate steps for reclamation of the area subject to the approval of the Commission.
“D. Should the surety pay over the bonds they shall be transferred to the Alabama Surface Mining Fund and designated for the reclamation of permit P-3563. ...”

Similar language was used in the order addressing permit P-3564.

The Commission’s final order affirmed the hearing officer’s order, which provided, alternatively, that the sureties pay the amount of the bonds or submit a detailed reclamation timetable outlining the immediate steps for reclamation of the area, subject to the Commission’s approval. As we have stated, the Commission was not required by regulation or statute to allow such an alternative; however, it was permitted to and apparently chose to do so.

The circuit court, in its summary-judgment order, modified the Commission’s order to require the sureties to pay the amount of the forfeited bonds. The court’s order states:

“THEREFORE, it is ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
“1. The administrative orders declaring forfeited the several Clarendon reclamation bonds are affirmed. Judgment thereon is awarded to [the Commission] in the amount of $746,740.00 as follows:
“[amount by bond number omitted]
“2. Judgment is hereby entered in favor of Gulf States with respect to all claims against it by the bonding companies.
“3. This order represents a final judgment by the Court as to all claims pending in civil actions numbered CV 96-404 and CV 96-773....”

The ASMCRA sets forth the procedure for appeals of the Commission’s actions. Section 9-16-79(6), Ala.Code 1975, specifically provides:

“(6) The cause shall be tried de novo in said circuit court and shall be a preference case on the docket thereof. The court shall have jurisdiction to determine the reasonableness and lawfulness of the order of the regulatory authority. Upon a finding by the court that the order is not reasonable or lawful, or not supported by the clear preponderance of the evidence, the cause shall be remand ed to the regulatory authority for farther proceedings in accordance with the provisions of this article. The parties shall have all rights of exception and appeal as in other equity cases.”

(Emphasis added.)

Pursuant to § 9-16-79(6), the circuit court has jurisdiction only to determine the reasonableness and lawfulness of the order issued by the regulatory agency. By its language, the trial court’s order indicates that it did not find the Commission’s order unreasonable or unlawful. However, even if the trial court had found the Commission’s order to be unreasonable or unlawful it had no authority to modify it. The court’s only statutory remedy was to remand the cases to the Commission for the Commission to enter an order that was reasonable and that comported with the law.

III.

In summary, the sureties have no absolute right to reclaim the subject lands in lieu of paying the amount of the bonds. The Commission also had no obligation to allow the sureties to reclaim the lands in lieu of ordering that they pay the amount of the bond forfeitures. Although the applicable statutes and regulations encourage reclamation by sureties in lieu of other permissible sanctions, the language used in addressing reclamation of lands by the surety after default by the principal obligated to perform the reclamation work is permissive rather than mandatory, providing that the Commission “may” — not that the Commission “shall” — allow approved reclamation in lieu of monetary payment. The Commission in this case chose, as it was permitted to do, to allow the sureties to pay the amount of the bond forfeitures or, in the alternative, to submit reclamation plans for approval by the Commission. The trial court, on de novo appeal, had no statutory authority to modify the Commission’s order to require payment of a monetary judgment only, thereby eliminating approved reclamation of the lands as an alternative. Because the trial court exceeded its statutory jurisdiction under § 9-16-79(6), Ala.Code 1975, when it modified the Commission’s order, we reverse the judgment of the Court of Civil Appeals affirming the trial court’s judgment and remand this case to the Court of Civil Appeals; that court is directed to reverse the judgment of the trial court and remand this cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, SEE, LYONS, BROWN, HARWOOD, and WOODALL, JJ., concur.

JOHNSTONE, J., concurs specially.

JOHNSTONE, Justice

(concurring specially).

But for one reservation, which does not affect the legal rationale or the judgment of the main opinion, I concur. The exception is that I do not agree with the statement that “[w]e sympathize with the Commission’s concern that the delay in obtaining satisfaction of these bonds makes a mockery of the public policy of this State favoring ‘the just, speedy and inexpensive determination of every action.’ ” 843 So.2d at 183. The Commission is the entity which persistently allowed the petitioners the option of merely submitting a reclamation plan instead of paying the sums due under the bonds.


author: CRAWLEY, Judge.

text:
    APEX COAL CORPORATION, Van American Insurance Company, and Clarendon National Insurance Company v. ALABAMA SURFACE MINING COMMISSION and Gulf States Paper Corporation.
    2991244 and 2991245.
    Court of Civil Appeals of Alabama.
    Aug. 30, 2002.
    Alton B. Parker, Jr., and Peter M. Wright of Spain & Gillon, L.L.C., Birmingham, for appellants.
    G. Milton McCarthy, asst. atty. gen., Jasper, for appellee Alabama Surface Mining Commission.
    H. Thomas Wells, Jr., Jeffrey A. Lee, and Stuart D. Roberts of Maynard, Cooper & Gale, P.C., Birmingham, for appellee Gulf States Paper Corporation.
   On Remand from the Alabama Supreme Court

CRAWLEY, Judge.

The Alabama Supreme Court has reversed this court’s judgment of April 6, 2001, and remanded the case. Ex parte Van American Ins. Co., 843 So.2d 180 (Ala.2002). In compliance with the Alabama Supreme Court’s opinion, the judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with the supreme court’s opinion.

REVERSED AND REMANDED.

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


author: THOMPSON, Judge.

text:
    H.F. and B.F. v. STATE DEPARTMENT OF HUMAN RESOURCES.
    2000382.
    Court of Civil Appeals of Alabama.
    Sept. 28, 2001.
    Rehearing Denied Dec. 7, 2001.

      James R. Kramer, Alabaster, for appellants.
    J.Coleman Campbell and Lynn S. Merrill, asst, attys. gen., Department of Human Resources, for appellee.
   THOMPSON, Judge.

The Shelby County Department of Human Resources petitioned to terminate the parental rights of H.F. and B.F. (hereinafter together referred to as the “parents”) to their minor child, J.L.F. The trial court entered a judgment terminating parental rights. The parents appealed. Although no party has addressed the issue whether this court has jurisdiction over this appeal, jurisdictional matters are of such significance that an appellate court may take notice of them ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So.2d 210 (Ala.Civ.App.1997) (citing Nunn v. Baker, 518 So.2d 711 (Ala.1987)). See also Wal-Mart Stores, Inc. v. Edwards, 735 So.2d 1221 (Ala.Civ.App.1998). We conclude this appeal was not timely filed, and, therefore, that this court lacks jurisdiction to consider it.

This appeal is from a judgment of the Juvenile Division of the District Court of Shelby County (the “trial court”), and, therefore, the Rules of Juvenile Procedure govern this action. See Rule 1(A), Ala. R. Juv. P. Rule 1(B), Ala. R. Juv. P., provides in part that “[a]ll post-judgment motions ... must be filed within 14 days after entry of judgment and shall not remain pending for more than 14 days.” The trial court entered its judgment on November 21, 2000. On December 5, 2000, the parents filed a timely postjudgment motion.

On December 18, 2000, the trial court entered a written order in which it denied the parents’ December 5, 2000, post-judgment motion; in that order, the trial court specifically required that notice of the order be mailed to the attorneys of record and to the parties. The ease action summary indicates that the trial court’s written order was filed with the clerk on December 18, 2000, and that copies were sent to the attorneys and to the parties. The parents had until January 2, 2001, in which to file a notice of appeal from the trial court’s December 18, 2000, order denying of their postjudgment motion. Rule 28(C), Ala. R. Juv. P. The parents did not file a timely notice of appeal.

On January 3, 2001, the parents filed in the trial court a document entitled “Motion to Allow Late Filed Appeal”; in that motion, the parents sought to extend the time for taking an appeal, pursuant to Rule 77(d), Ala. R. Civ. P. In that motion, the parents’ attorney stated that he had checked his courthouse mailbox between December 18, 2000, and January 3, 2001; he stated, however, that he did not receive until January 3, 2001, the notice from the clerk of the court that the trial court had denied the parents’ postjudgment motion. In their January 3, 2001, motion, the parents argued that their failure to timely appeal was the result of “excusable neglect,” as that term is used in Rule 77(d), Ala. R. Civ. P.

On January 5, 2001, the parents filed a notice of appeal. On January 9, 2001, the trial court entered an order in which it “deemed [the parents’ notice of appeal] filed as ‘timely’ due to excusable neglect.”

Rule 77(d), Ala. R. Civ. P., reads:

“Notice of Orders or Judgments. Immediately upon the entry of an order or judgment the clerk shall serve a notice of the entry by mail in the manner provided for in Rule 5 upon each party who is not in default for failure to appear, and who was not present in person or by that party’s attorney or not otherwise notified, when such order or judgment was rendered, and make a note on the docket of the mailing. Such mailing is sufficient notice for all purposes for which notice of the entry of an order is required by these rules; but any party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except that upon a showing of excusable neglect based on a failure of the party to learn of the entry of the judgment or order the circuit court in any action may extend the time for appeal not exceeding thirty (SO) days from the expiration of the original time now provided for appeals in civil actions.”

(Emphasis added.)

In Bacon v. Winn-Dixie Montgomery, Inc., 730 So.2d 600 (Ala.1998), the time for taking an appeal from the trial court’s judgment expired, and Bacon moved, pursuant to Rule 77(d), to extend the time for taking an appeal. The trial court granted Bacon’s motion and allowed her additional time in which to appeal. Bacon’s attorney had not received a notice from the clerk that a judgment had been entered in the action; the evidence did not indicate that the attorney had made any inquiry regarding the status of the case. Our supreme court dismissed the appeal as being untimely, holding that Bacon had not made the requisite showing of “excusable neglect.” 730 So.2d at 603. In so holding, the court stated:

“The language of Rule 77(d) is clear. It involves a two-step process. Clerks are directed by Rule 77(d) to notify the parties by mail of the entry of a judgment. That language is not ‘aspirational.’ See, Turner v. Barnes, 687 So.2d 197 (Ala.1997). The Committee Comments to Rule 77(d), citing 7 Moore’s Federal Practice, ¶ 77.05 (2d ed.1971), state: ‘The duty which [Rule 77(d)] imposes on the clerks and registers is intended for the convenience of litigants.’ However, the language following that portion of Rule 77(d) imposing on the clerks and registers a duty to notify the parties of the entry of a judgment, by mail, clearly states that the failure of the clerk’s office to fulfill that duty in no way affects the time to appeal unless a party can show excusable neglect. Adherence to this rule by the clerk or register should alleviate any notice problems; however, regardless of the failure of the clerk’s office to fulfill its duty imposed by Rule 77(d), nothing in the plain language of Rule 77(d) or in existing caselaw relieves the party seeking an extension of time of the burden of showing ‘excusable neglect’ that caused the appeal not to be filed within the time ordinarily allowed. That is, when nothing can be shown beyond a party’s simple reliance on the notification process of the clerk’s office, the plain language of Rule 77(d) prohibits the granting of an extension of time unthin which to appeal.”

730 So.2d at 602. (Some emphasis added.)

In Miller v. Amerada Hess Corp., 786 So.2d 1106 (Ala.2000), Miller’s attorney did not receive from the clerk notice of the trial court’s entry of a judgment. The attorney testified in an affidavit submitted to the trial court that he had checked his courthouse mailbox nearly every day and that he never received any indication that the trial court had entered a judgment. Our supreme court concluded that the attorney’s actions did not constitute the “excusable neglect” contemplated by Rule 77(d), and it dismissed the appeal as being untimely.

Similarly, in this case, the attorney stated that he checked his courthouse mailbox but that he did not receive notice of the trial court’s December 18, 2000, order. The caselaw is settled that such actions do not constitute “excusable neglect” under Rule 77(d). Furthermore, we note that even if the trial court had not entered its December 18, 2000, order denying the parents’ December 5, 2000, postjudgment motion, that postjudgment motion would have been denied by operation of law on December 19, 2000. Rule 1(B), Ala. R. Juv. P. The parents’ attorney stated that between December 18, 2000, and January 3, 2000, he checked his courthouse mailbox for an order from the trial court. However, had the trial court not entered its December 18, 2000, order, it would have lost jurisdiction to rule on the parents’ postjudgment motion on December 19, 2000. We also note that January 2, 2001, was the last day to appeal from the trial court’s December 18, 2000, order and that it also would have been the last day on which the parents could have appealed if their postjudgment motion had been denied by operation of law.

“[T]he record does not show that the plaintiffs counsel took action ‘beyond a ... simple reliance on the notification process of the clerk’s office’ or court personnel, Bacon, 730 So.2d at 602.... Accordingly, we conclude that the plaintiff did not show the kind of “excusable neglect” required by Rule 77(d).” Miller v. Amerada Hess Corp., 786 So.2d 1106, 1110 (Ala.2000). Therefore, we must hold that the trial court erred in entering its January 9, 2001, order purporting to extend the time for appeal pursuant to Rule 77(d). The filing of the notice of appeal is a jurisdictional act. Bacon v. Winn-Dixie Montgomery, Inc., supra. We must dismiss this appeal as having been untimely filed. Rule 2(a)(1), Ala. R.App. P.

DISMISSED.

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

      . The 14-day lime for filing a notice of appeal from the December 18, 2000, order expired on January 1, 2001, which was a legal holiday. Therefore, the parents had until January 2, 2001, in which to file a timely notice of appeal. Rule 6(a), Ala. R. Civ. P.


author: HOUSTON, Justice.

text:
    Ex parte H.F. and B.F. (Re H.F. and B.F. v. State Department of Human Resources).
    1010658.
    Supreme Court of Alabama.
    May 3, 2002.
    James R. Kramer, Alabaster, for petitioners.
    J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill, asst. atty. gen., Department of Human Resources, for respondent.
   HOUSTON, Justice.

The petitioners H.F. and B.F. seek cer-tiorari review of the Court of Civil Appeals’ dismissal of their appeal. The Court of Civil Appeals held that the petitioners’ appeal was untimely. We reverse and remand.

I. Facts

This case began when the Alabama Department of Human Resources (“the Department”) sought to terminate the parental rights of H.F. and B.F. to their minor child, J.L.F. The trial court entered a judgment terminating H.F. and B.F.’s parental rights on November 21, 2000; H.F. and B.F. filed a timely postjudgment motion on December 5, 2000.

On December 18, 2000, the trial court entered an order denying the December 5 postjudgment motion. Accordingly, H.F. and B.F. had until January 2, 2001, to file a notice of appeal from the December 18, 2000, order. However, H.F. and B.F. took no action until January 3, 2001, when they filed a motion styled as a “Motion to Allow Late Filed Appeal.” Through this motion, filed pursuant to Rule 77(d), Ala. R. Civ. P., H.F. and B.F. sought to extend the time for filing a notice of appeal, claiming that their failure to timely file such a notice was the result of “excusable neglect,” the only acceptable grounds provided for such an extension under Rule 77(d). The basis for the alleged “excusable neglect” was the claim of H.F. and B.F.’s attorney that he did not receive notice of the entry of the trial court’s December 18, 2000, order until January 3, 2001.

On January 5, 2001, H.F. and B.F. filed a notice of appeal, and on January 9, 2001, the trial court entered an order, finding that the notice of appeal was “ ‘timely’ [filed] due to excusable neglect.” At no time did the Department contest H.F. and B.F.’s assertion that the untimely filing of the notice of appeal was the result of excusable neglect or the trial court’s finding to that effect.

The Court of Civil Appeals, however, dismissed H.F. and B.F.’s appeal as untimely. H.F. v. State Dep’t of Human Res., 843 So.2d 186 (Ala.Civ.App.2001). While no party raised the timeliness issue on appeal, the court ex mero motu addressed the merits of the trial court’s finding of excusable neglect and held, based upon our decisions in Miller v. Amerada Hess Corp., 786 So.2d 1106 (Ala.2000), and Bacon v. Winn-Dixie Montgomery, Inc., 730 So.2d 600 (Ala.1998), that because mere lack of notice of the entry of a judgment does not constitute excusable neglect, the trial court improperly extended the time within which to appeal, and the appeal was therefore untimely. 843 So.2d at 189-90.

II. Analysis

We granted the petition for the writ of certiorari in this case to examine whether the Court of Civil Appeals’ decision conflicts with our decision in Ex parte S.W.T., 782 So.2d 766 (Ala.2000). In S.W.T., a parent failed to timely file a postjudgment motion from a judgment terminating her parental rights. S.W.T., 782 So.2d at 766. The parent claimed that her failure to file the motion was the result of excusable neglect, and she moved the trial court to extend the time within which to file the motion. 782 So.2d at 766-67. This motion was, in substance, a motion to enlarge the time for appeal pursuant to Rule 77(d), Ala. R. Civ. P. Id. The Cullman County Department of Human Resources did not oppose the motion, which the trial court subsequently granted. Id. The parent then filed a postjudgment motion. Following the denial of that motion, the parent filed a notice of appeal. 782 So.2d at 766-67.

The Court of Civil Appeals dismissed the appeal as untimely. In doing so, it held that the order finding that the parent’s failure to timely file a postjudgment motion (and hence to timely appeal) was the result of excusable neglect and extending the time within which she could file such a motion was erroneous. S.W.T. 782 So.2d at 766-67. We reversed, holding that because the Cullman County Department of Human Resources failed to contest the parent’s motion for, and the trial court’s order granting, the extension of time within which to file a postjudgment motion and then a notice of appeal, the Court of Civil Appeals could not review the merits of that order, because arguments raised for the first time on appeal cannot be considered. 782 So.2d at 767 (citing Gotlieb v. Collat, 567 So.2d 1302 (Ala.1990)).

We find no distinction between this case and S.W.T. In both cases, there was no opposition in the trial court to H.F. and B.F.’s assertion that their failure to timely appeal was the result of excusable neglect or the trial court’s finding of excusable neglect under Rule 77(d). Therefore, in accordance with our decision in S.W.T., we reverse the judgment of the Court of Civil Appeals and remand the case for that court to consider H.F. and B.F.’s appeal in accordance with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ.,- concur.

      . In the juvenile court, a party has 14 days from the date of the entry of the judgment or order appealed from in which to file a notice of appeal. Rule 28(C), Ala. R. Juv. P. The 14-day period for an appeal from the December 18, 2000, order would have expired on January 1, 2001, a legal holiday. Therefore, H.F. and B.F. had until January 2 to file their notice of appeal.


author: MURDOCK, Judge. CRAWLEY, Judge,

text:
    B.R.F. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2000224.
    Court of Civil Appeals of Alabama.
    Jan. 25, 2002.
    Rehearing Denied Aug. 23, 2002.
    Sharon Matthew Moore, Huntsville, for appellant.
    J. Coleman Campbell and Lynn S. Merrill, asst, attys. gen., State Department of Human Resources, for appellee.
   MURDOCK, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(C), Ala. R.App. P.; Ala.Code 1975, §§ 12-15-6 and 26-18-7; Transamerica Commercial Fin. Corp. v. AmSouth Bank, 608 So.2d 375 (Ala.1992); Ex parte Hill, 366 So.2d 318 (Ala.1979); and S.W.T. v. Cullman County Dep’t of Human Resources, 782 So.2d 767 (Ala.Civ.App.2000).

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

CRAWLEY, J., concurs specially.

CRAWLEY, Judge,

concurring specially.

I question whether the Department of Human Resources met its burden of offering B.R.F. the services that might have prevented a termination of his parental rights. Neverthéless, I reluctantly concur in the decision to affirm the judgment terminating those rights because I cannot tell from the record before this court whether the trial court considered juvenile records that do not appear in this record.


text:
    STATE DEPARTMENT OF HUMAN RESOURCES v. Christy Downs CAMPBELL.
    2010095.
    Court of Civil Appeals of Alabama.
    March 15, 2002.
    Rehearing Denied Aug. 30, 2002.
    J. Coleman Campbell and Lynn S. Merrill, asst, attys. gen., Department of Human Resources, for appellant.
    Submitted on appellant’s brief only.
   MURDOCK, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.; Ala.Code 1975, § 26-10A-31(f); and Ala.Code 1975, § 26-10A-31 comment.

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

CRAWLEY, J., dissents.

CRAWLEY, Judge,

dissenting.

I must respectfully dissent from this court’s affirmance without opinion of the judgment authorizing the search of the adoption records of Floyd Campbell for two reasons. According to Ala.Code 1975, § 26-10A-31®, a trial court may release nonidentifying information from an adoption file to any person who demonstrates a compelling need for that information. I cannot agree that Campbell’s petition, in which she states that she needs the current medical records of a blood relative to trace a congenital heart condition, demonstrates a compelling need. I believe that Campbell would need to provide the reason that the information she is seeking is necessary to treat her condition and not simply necessary to “trace” it. In addition, the information that Campbell seeks — -the current medical records of a blood relative — would require the release of identifying information, which the statute does not appear to permit the trial court to release.


author: YATES, Presiding Judge.

text:
    Gary L. JESTER v. Donna L. JESTER. Donna L. Jester v. Gary L. Jester.
    2010112.
    Court of Civil Appeals of Alabama.
    May 24, 2002.
    Rehearing Denied Aug. 23, 2002.

      Stephen R. Arnold, Birmingham, for appellant/cross-appellee Gary L. Jester.
    David B. Cauthen, Decatur, for appel-lee/cross-appellant Donna L. Jester.
   YATES, Presiding Judge.

This is the second time this case has been before this court. See Jester v. Jester, 795 So.2d 743 (Ala.Civ.App.2001)(“Jester I”). The wife moved to, among other things, have the husband held in contempt for his failure to comply with provisions of the divorce judgment. The court found that the husband owed the wife $62,609.61 in reserve alimony. On postjudgment motions by the parties, the court amended its judgment, finding that the husband owed $61,415.02 in reserve alimony. The husband appealed; the wife cross-appealed.

On March 30, 2001, this court held that the trial court had erred in its calculation of the amount of reserve alimony owed by the husband; we reversed that portion of the judgment and remanded the case, instructing the trial court to “allow a reduction of the taxable income based on the second wife’s earnings for 1991 through 1995” using “the stipulated formula based on taxable income exceeding $72,000 per year and taxable income that exceeds $6,000 per month within that year.” 795 So.2d at 749. We affirmed all other portions of the judgment.

On remand, the trial court requested the parties to submit “their proposed recalculations.” On May 7, 2001, the wife submitted an affidavit prepared by Robert M. Hunt, Jr., a certified public accountant, who set out his professional opinion as to the correct methodology in calculating the reserve alimony in accordance with provisions of the divorce judgment. The wife also moved the court to require the husband to produce all financial records showing his “annual and monthly income from all sources, and correct evidence as to what income he received by virtue of his inheritance or gift from his parents.” The court granted the wife’s motion.

On or about July 24, 2001, the wife moved for a partial summary judgment; she later moved to amend her motion. On September 20, 2001, the trial court entered its new order after remand, which stated, in part, as follows:

“This Court expressed its befuddlement as to how to calculate in accordance with the mandate. It requested that the parties come up with their proposed recalculations. They have done so to some extent.
“In its initial calculations, the court did make a significant error in that it based its calculations upon the figures shown in Mr. Jester’s income tax returns. Those amounts included the earnings of Mr. Jester’s second wife, a fact which was not revealed to the Court during the trial. Before the appellate court ruled, Mr. Jester was allowed to supplement the record to show that the returns included the then second Mrs. Jester’s earnings and that justified a recalculation.
“As the Court understands the appellate court’s ruling, it is required to look at the individual months within the years with more than $72,000.00 in earnings. This Court does not believe that such an examination, if properly applied, affects the outcome. If, for example, he earned an even $6,000.00 per month from January through November and then earned $18,000.00 in December, his total annual earnings would be $84,000.00. Calculating on an annual basis, he would owe $2,400.00. Calculating on a monthly basis, he would owe $2,400.00. So long as his annual income exceeded $72,000.00 and every month’s income exceeded $6,000.00, either calculation has the same result.
“Certainly, it was not intended that the percentages be applied to every month in which his earnings exceeded $6,000.00 and without regard to the offsetting effect of those months when he made less than that amount. For example, if he earned only $4,000 per month for eleven months and then $40,000.00 for the twelfth, he still would have a total of $84,000.00 for the year but, if the eleven bad months were ignored, would he not owe $5,600.00 (20% of the $28,000.00 extra made that twelfth month) on the basis of a monthly calculation?
“Clearly, the only fair way to determine the reserve alimony, even taking into consideration the monthly as well as the annual earnings, is the method the Court originally followed.
“When the second Mrs. Jester’s income is deducted, we have the following results:
Year AGI Reserve alimony due
1989 $ 67,890.00 $ -0-
1990 $ 74,595.37 $ 519.07
1991 $ 80,228.64 $ 1,654.72
1992 $100,010.37 $ 5,602.07
1993 $119,691.52 $ 7,769.15
1994 $124,140.06 $ 8,214.00
1995 $143,237.29 $ 9,561.86
1996 $199,833.27 $12,000.00
1997 $219,783.00 $12,000.00
1998 $174,162.00 $11,108.10
Total $68,419.97[]
“[The husband] still is entitled to the credits allowed in the [divorce judgment], a total of $19,550.00. This reduces his reserve alimony obligation to a net of $48,869.97, for which an amended judgment will enter. Hopefully, this will end this thirteen year battle.
“1. That, pursuant to the mandate of the Court of Civil Appeals, the Court has recalculated the ‘reserve alimony,’ taking into consideration both the annual and monthly thresholds established by the original Decree.
“2. That Mr. Jester owes Mrs. Jester, as of March 30, 2000, the sum of $48,869.97 in ‘reserve alimony’ and a judgment is entered against him and in her favor in that amount.
“3. That Mrs. Jester is entitled to interest on the judgment at the post-judgment rate of 12% per annum from March 30, 2000.”

The husband appealed; the wife cross-appealed.

Both the husband and the wife argue that the trial court failed to follow the instructions of this court of calculating the reserve alimony due to the wife. The wife further argues that because the court on remand failed to apply the proper formula for calculation of reserve alimony, it erred in determining the amount of reserve alimony it awarded to her. We agree.

The trial court contends that it makes no difference whether a calculation is performed for each individual month in years when annual earnings exceed $72,000. We disagree. The trial court attempted to explain its ruling by presenting a hypothetical where the husband made $84,000 per year; earning $6,000 from January to November, then in December earning $18,000. For example:

Month Taxable Monthly Income Excess
January 3,000 0
February $ 6,000 0
March $ 6,000 0
April $ 6,000 0
May $ 6,000 0
July $ 6,000 0
August $ 6,000 0
September $ 6,000 0
October $ 6,000 0
November $ 6,000 0
December $18,000 $12,000
Totals $84,000 $12,000
X20%
Reserve Alimony $ 2,400

On its face, the court appears to have properly applied the formula set out by this court. However, the trial court simply subtracted $72;000 from each year with earnings over that amount, then multiplied the difference to get the total reserve alimony, grossly misconstruing our instructions. Therefore, we will use our own hypothetical example to illustrate the proper method of calculating reserve alimony, pursuant to our instructions on remand, giving the husband an annual income of $84,000, with varying monthly earnings. For example:

Month Taxable Monthly Income Excess
January $ 4,000 0
February $ 8,000 $ 2,000
March $ 6,000 0
April $ 2,000 0
May $10,000 $ 4,000
June $ 8,000 $ 2,000
July $ 7,000 $ 1,000
August $ 9,000 $ 3,000
September $ 4,000 0
October $ 6,000 0
November $ 2,000 0
December $18,000 $12,000
Totals $84,000 $24,000
X20%
Reserve Alimony $ 4,800

In this hypothetical, the husband earned over $72,000 for the year; therefore he is required to pay reserve alimony. For each month his earnings exceeded $6,000, $6,000 is subtracted from the taxable income from that month; the difference is the “excess.” Next, the excess for all months in which there was an excess is totaled, and the total monthly excess is multiplied by the percentage set out in the original divorce judgment. That amount is the correct amount of reserve alimony for the year.

As demonstrated above, although the adjusted gross income for each year is identical, calculating each month separately results in a different amount than simply determining the total annual excess taxable income over $72,000 and applying the appropriate percentage as the trial court did. The trial court failed to follow our instructions on remand and erred in its calculations of reserve alimony due the wife. Accordingly, we reverse and remand for the court to follow our previous instructions.

Finally, the wife argues that the court erred in denying her motion for a partial summary judgment. Because we have held that the trial court erred in its determination of reserve alimony, we pretermit discussion of this issue.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Mrs. Jester’s motion for a summary judgment was denied by the court in its final order, from which she appeals.

      . We note that the total of this column should be $68,428.97, and also the reserve alimony figure in the following paragraphs should be $48,878.97 rather than $48,869.97. However, the parties do not dispute those figures,