author: PER CURIAM. BROWN, Justice MOORE, Chief Justice SEE, Justice

text:
    Ex parte Russell HUDSON. (In re Duane Haston, Jr., by and through his father and next friend, Duane Haston, Sr., and Duane Haston, Sr. v. C.F. Vigor High School, Mobile County School Board of Commissioners, Garner & Associates, Inc., and Interkal, Inc.).
    1011148.
    Supreme Court of Alabama.
    March 14, 2003.
    Rehearing Denied May 30, 2003.

      Mark S. Boardman and Dana J. Bolden of Boardman, Carr, Weed & Hutcheson, P.C., Chelsea; and Bob Sherling, Jr., of Campbell, Duke & Sherling, Mobile, for petitioner.
    Donald M. Briskman of Briskman & Binion, P.C., Mobile, for respondents Duane Haston, Sr., and Duane Haston, Jr.
   PER CURIAM.

Russell Hudson, an employee with the Mobile County School System, petitioned this Court for a writ of mandamus directing the Mobile Circuit Court to dismiss all claims brought against him by Duane Ha-ston, Jr., a former student at Vigor High School. We grant the petition in part, deny it in part, and issue the writ.

Russell Hudson started working for the Mobile County School System in 1984; at the time of this appeal he was a senior buyer in its purchasing department. In 1994, Hudson was the purchasing foreman in the school system’s renovations department. His responsibilities included receiving bids, reviewing bids, ensuring that bidders met minimum bid specifications, making recommendations on the bids to the school board, and executing purchase orders. As purchasing foreman, Hudson’s involvement with a project ended once the county board of education awarded a contract and the school system submitted the purchase orders to the vendor.

In March 1994, the Mobile County School System solicited bids for the delivery and installation of bleachers in the gym at C.F. Vigor High School. The bleachers were not to be stationary; they were to pull out when necessary for seating and to close against the wall when more floor space was needed in the gym. The school system ultimately contracted with Garner & Associates, Inc., to deliver and install bleachers manufactured by In-terkal, Inc. Within the school system, a number of individuals from the purchasing, new construction, and renovations departments, including Hudson, worked to draft the bid specifications for the bleachers for Vigor High School. Once the school system had received bids from vendors, Hudson checked to ensure that the bids complied with the bid specifications and then made a recommendation to the school board as to which bid should be accepted. The school board made its decision, and once Hudson, or someone in his office, issued the purchase orders relating to the bleacher project, Hudson’s work on the project ended. Hudson did not supervise the actual installation or maintenance of the bleachers at Vigor High School.

Garner & Associates claims that in October 1994, in connection with the Vigor bleacher project, it sent Hudson a bleacher maintenance manual. Hudson stated in his deposition that he did not recall having received the manual, but that if he had received it, he would have passed it on to the project site foreman, Clayton Haggett. Hudson stated that, though no one has ever told him that it was part of his job to forward maintenance manuals to job sites, if he received a manual or other similar documentation relating to a project, he usually would pass it along to the site foreman as part of his job.

On December 12, 1997, at the request of their gym teacher, Duane Haston and two other Vigor High School students tried to close the bleachers by pushing them towards the wall. The bleachers slipped off track and fell onto Haston, breaking his back. Haston, by and through his father and next friend Duane Haston, Sr., sued Russell Hudson and others alleging, among other claims, that Hudson had negligently inspected and maintained the bleachers at Vigor High School.

Hudson and the other individual-school-system-employee defendants moved for a summary judgment on the ground that they were protected by State-agent immunity. The trial court entered a summary judgment in favor of all of the individual-school-system-employee defendants except Hudson. The trial court’s order denying Hudson’s summary-judgment motion is not included in the materials submitted to this Court. Hudson moved for permission to appeal pursuant to Rule 5, Ala. R.App. P., and the trial court denied Hudson’s motion. Hudson then petitioned this Court for the writ of mandamus.

“A writ of mandamus is an extraordinary remedy, and it ‘will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and properly invoked jurisdiction of the court.’ ”

Ex parte Butts, 775 So.2d 173, 176 (Ala.2000) (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)). “[A] petition for a writ of mandamus is an appropriate means for seeking review of an order denying a claim of immunity.” Id.

Hudson argues in his petition that he is entitled to State-agent immunity because, he says, all of his actions as purchasing foreman are discretionary functions, the execution of which is protected by immunity. Haston argues in reply that Hudson’s duties are ministerial and that his actions are not entitled to State-agent or discretionary-function immunity.

We decline the parties’ invitation to address the issues under the dichotomy of ministerial versus discretionary functions because this Court in Butts adopted the test for State-agent immunity suggested in Ex parte Cranman, 792 So.2d 392 (Ala.2000). Butts, 775 So.2d at 178. Cranman “restate[d] ... the rule governing State-agent immunity.” 792 So.2d at 405. In order to simplify the analysis of State-agent immunity issues, Cranman suggested certain categories of State-agent action where agents are immune in the exercise of their judgment, such as, for example, cases where an agent is:

“(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“(a) making administrative adjudications;
“(b) allocating resources;
“(c) negotiating contracts;
“(d) hiring, firing, transferring, assigning, or supervising personnel; or
“(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner.... ”

792 So.2d at 405 (emphasis added). Under Cranman, a plaintiff attempting to pierce a defense of State-agent immunity would have to demonstrate that a State agent was not exercising his or her judgment in the manner set forth in the examples in Cranman; that the agent had violated the Constitution or laws of the United States, or the Constitution or laws of Alabama or some regulation of this State; or that the agent had acted “willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.” 792 So.2d at 405.

Haston, resorting to the pre-Cranman dichotomy of ministerial and discretionary function, argues that Hudson is not entitled to State-agent immunity because, he says, Hudson was not engaged in a discretionary function. Haston argues (1) that Hudson was under a legal duty to inspect the bleachers; (2) that Hudson’s role in evaluating the bids for the bleachers was ministerial; and (3) that Hudson had a ministerial duty to pass along to the project foreman the maintenance manual provided by Interkal for the bleachers and that Hudson’s failure to carry out this duty was negligent or wanton behavior. We address the issues in the context of whether in regards to his actions relating to the bleachers Hudson was involved in the exercise of judgment within the framework of the examples set forth in Cranman.

Haston argues that a regulatory scheme imposes a duty on Hudson to inspect the bleachers and that Hudson failed to carry out this duty. Haston cites a National Fire Protection Association (“NFPA”) rule that stipulates “[a]n annual inspection and required maintenance of each grandstand shall be performed to assure safe conditions. At least biennially the inspection shall be performed by a professional engineer or qualified service personnel.” Ha-ston indicates that compliance with this rule became part of Hudson’s job because NFPA codes were incorporated by reference into the bid specifications for the Vigor High School bleachers. Haston further argues that Hudson would be the person responsible for inspecting the bleachers because his job as purchasing foreman required him to ensure that vendors complied with the bid specifications.

Hudson argues that the facts do not support Haston’s argument. Thomas Duncan, who directed the renovation projects for Mobile County public schools at the time the bid was awarded for the Vigor High School bleachers, testified in his deposition that Bobby Nelson, the facilities planner for the Mobile County public schools, was responsible for hiring an engineer to inspect the bleachers. According to Duncan, Hudson, as the purchasing foreman, had no duty to inspect the completed projects. Duncan testified that Hudson checked that bids met bid specifications, not that the completed work met contract specifications.

Hudson also argues that his duties as purchasing foreman were not ministerial. Again, we recast this issue into the context of the exercise of judgment within the framework of the Cranman analysis. Bid proposals necessarily incorporate safety codes, and Hudson’s job required him to analyze those codes in evaluating bids on specific projects. Hudson’s activities are comparable to the activities referred to in Cranman as a state agent’s “exercising his or her judgment ... [in] ... allocating resources [or] negotiating contracts.” 792 So.2d at 405.

In Ex parte Spivey, 846 So.2d 322 (Ala.2002), a student injured while using a saw that did not have a required safety fence sued his teacher and the teacher’s supervisor, Spivey, alleging that they were liable for failing to follow safety rules. In Spivey, this Court held that “the general requirement imposed by Spivey’s job description that he ‘[ijmplement safety instruction and practices’ does not remove Spivey’s judgment in determining” whether the teachers or the students followed safe practices. 846 So.2d at 327. Hudson’s responsibility to apply safety rules to analyze bids is analogous to Spivey’s responsibility to apply safety rules to the conduct of students and subordinate teachers.

Haston argues in his brief to this Court that “the Southern Building Code, American Disability Act [sic], and the National Fire Protection Association [rules] are all applicable to the maintenance and inspection of the bleachers. As a result, there was a legal requirement that the inspection be conducted on an annual basis for safety.” Hudson says that he does not follow the Southern Building Code, the NFPA, or some other code when he evaluates a bid; instead, he uses such codes as one of several evaluative tools to gauge whether a bid makes the best use of school resources and whether a bid meets a project’s specifications. Hudson argues that the inclusion of rules within the contract should apply to a bid analyst only to the extent that those rules bear upon the subject matter of the contract, and not its performance.

We conclude that Hudson is entitled to State-agent immunity as to the claims that Hudson failed to properly evaluate the bids for the bleachers and failed to inspect the bleachers.

Haston finally argues that Hudson’s job included passing along the maintenance manual he received from Garner & Associates for the bleachers to the project foreman, that doing so was a ministerial duty, and that Hudson’s failure to carry out this duty is negligent or wanton behavior. Again, we recast the issue in terms of the standard set forth in Cran-man. The complete test announced in Cranman and embraced in Butts is as follows:

“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“(1) formulating plans, policies, or designs; or
“(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“(a) making administrative adjudications;
“(b) allocating resources;
“(c) negotiating contracts;
“(d) hiring, firing, transferring, assigning, or supervising personnel; or
“(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
“(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons; or
“(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
“(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

792 So.2d at 405. Forwarding a maintenance manual does not fall within the parameters of the exercise of judgment described in the preceding illustrative examples set forth in Cranman, and Hudson is not entitled to State-agent immunity as to this claim.

This case is before us on a petition for the writ of mandamus. The petition cites Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000), for the proposition that “[wjhile the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus.” We confine our interlocutory review to matters germane to the issue of immunity. Matters relevant to the merits of the underlying tort claim, such as issues of duty or causation, are best left to the trial court on remand. See Ryan v. Hayes, 831 So.2d 21, 32 (Ala.2002) (recognizing that the defense of immunity should, as a general rule, be determined as a threshold issue, thereby avoiding “development of unnecessarily restricted principles of tort law driven by the need to accommodate principles of State-agent immunity”). We therefore do not address contentions with respect to the absence of information in the materials before us as to what a responsible person might have done, notwithstanding the availability of the manual, and whether safety statutes and codes, rather than a maintenance manual, are the appropriate source of any duty. Those matters are for the trial court.

The trial court’s denial of Hudson’s motion for a summary judgment was proper only as to the issue of his liability arising out of the alleged failure to forward the maintenance manual; the parties are entitled to conduct further proceedings only as to that issue. We therefore deny Hudson’s petition for a writ of mandamus only as to Haston’s claim that Hudson was negligent or wanton in failing to forward the maintenance manual on the bleachers to the project foreman. As to Haston’s remaining claims, we conclude that Hudson has a “clear legal right” to a summary judgment in his favor on the basis of State-agent immunity. The trial court is ordered to vacate its order denying a summary judgment for Hudson, and to enter a summary judgment in his favor as to all of Haston’s claims except the claim alleging negligence or wantonness in the failure to forward the maintenance manual.

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

HOUSTON, LYONS, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

BROWN and STUART, JJ., concur in part and dissent in part.

MOORE, C.J., concurs in the result in part and dissents in part.

SEE, J., dissents.

BROWN, Justice

(concurring in part and dissenting in part).

I respectfully dissent from the portion of the majority’s opinion denying the petition. I believe that the defendant, Russell Hudson, has demonstrated that he is entitled to State-agent immunity as to all of the claims and that the trial court erred in denying his motion for a summary judgment. I would therefore grant the petition for the writ of mandamus as to all claims asserted by Duane Haston.

STUART, J., concurs.

MOORE, Chief Justice

(concurring in the result in part and dissenting in part).

I concur in denying the petition for the writ of mandamus as to the issue whether Russell Hudson was negligent or wanton in fading to forward the maintenance manual for the bleachers to the project foreman. I dissent from the granting of the petition for the writ of mandamus as to Duane Haston’s other claims against Hudson. With regard to those claims, I believe mandamus is an improper remedy because another adequate legal remedy— appeal — is available.

SEE, Justice

(dissenting).

I respectfully dissent. I believe that the defendant, Russell Hudson, is entitled to State-agent immunity as to all claims.

In 1994, Russell Hudson was the purchasing foreman in the renovation department of the Mobile County School System. His responsibilities included receiving bids from vendors on, and materials about, prospective and ongoing projects; reviewing those bids; making recommendations to the school board as to the bids; executing purchase orders; forwarding project materials to site foremen and other appropriate people; and ensuring that bidders met minimum bid specifications before the school system awarded a contract for a renovation project. As purchasing foreman, Hudson’s involvement with a project ended once the county board of education awarded the contract and the purchase order was forwarded by the school system to the vendor.

On December 12, 1997, Duane Haston, a Vigor High School student, was injured when a set of bleachers purchased while Hudson was purchasing foreman fell on him in the school gym. Haston, by and through his father and next friend Duane Haston, Sr., sued Russell Hudson and others alleging, among other claims, that Hudson had negligently inspected and maintained the bleachers at Vigor High School.

Hudson argues in his mandamus petition that he is entitled to State-agent immunity because, he says, all of his actions as purchasing foreman for the Mobile County School System are protected discretionary functions subject to immunity. Haston responds that Hudson’s duties are ministerial and, therefore, that Haston is not entitled to State-agent or discretionary-function immunity. He argues that Hudson’s duties specifically included passing along to the proper people in the school system a maintenance manual for the bleachers that Hudson’s office allegedly received from Garner & Associates, Inc., the company that installed the bleachers, and that that duty is ministerial. Haston alleges that Hudson failed to carry out this allegedly ministerial duty by failing to forward the manual, that this failure caused the bleachers not to be inspected and not to be properly maintained, and that Hudson’s alleged failure to forward the manual constitutes negligent or wanton behavior, making Hudson liable to Ha-ston.

The majority “decline[s] the parties’ invitation to address the issues under the dichotomy of ministerial versus discretionary functions,” 866 So.2d at 1117, and instead “recast[s] this issue,” 866 So.2d at 1118, using the vocabulary of Ex parte Cranman, which “suggested certain categories of State-agent action where agents are immune in the exercise of their judgment.” 866 So.2d at 1117. In Cranman, “the [State-employed] physicians argue[d] that decision-making exercised by a physician in treating a patient should be entitled to immunity because ... such decision-making inherently involves the utmost discretion.... ” 792 So.2d at 406. The Cranman Court rejected the physicians’ argument and held that although the physicians’ work involved the exercise of judgment, the physicians did not exercise judgment “within any category of conduct recognized by the restated rule as immune.” 792 So.2d at 406.

In this case, the majority holds that Hudson’s duties as purchasing foreman “are comparable to the activities referred to in Cranman as a state agent’s ‘exercising his or her judgment ... [in] ... allocating resources [or] negotiating contracts.’ ” 866 So.2d 1119 (quoting Cranman, 792 So.2d at 405)(alterations in the main opinion). The majority also holds, however, that “[fjorwarding a maintenance manual does not fall within the parameters of the exercise of judgment described in the preceding illustrative examples set forth in Cranman.” 866 So.2d at 1120.

Thus, the majority effectively creates a two-step Cranman test. To qualify for State-agent immunity, the State-agent, first, must fall within one of the Cranman categories (for example, formulating plans, administering an agency, discharging certain duties); then, second, the specific action complained of must be an action that “fall[s] within the parameters of the exercise of judgment described in the ... illustrative examples set forth in Cran-man.” 866 So.2d at 1120.

I dissented in Cranman because I was concerned that its application would intrude on the constitutional balance of powers embodied in the Constitution of Alabama of 1901. Nonetheless, because the pre-Cranman discretionary function/ministerial duty test was itself a court-created test, when it became clear that the test set out in Cranman had become the law of Alabama, I ceased dissenting in “Cranman cases.” See Ex parte Mobile County Dep’t of Human Res., 815 So.2d 527, 582 (Ala.2001)(See, J., concurring specially)(“Although I disagreed with the discretionary-immunity rule suggested by the plurality in Ex parte Cranman ... and subsequently adopted by this Court in Ex parte Butts, 775 So.2d 173, at 177-78 (Ala.2000), it is now the law of the State of Alabama. I therefore concur.”). When the Cranman plurality stated that a State-agent would be immune when “exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as ... negotiating contracts ...,” 792 So.2d at 405, the plurality appeared to offer the benefit of an easy-to-apply, “bright-line” standard for determining whether an individual was covered by State-agent immunity-

In the case before us today, the majority apparently finds that Hudson is a State-agent, that is, that he meets the first criterion for the application of State-agent immunity, namely, that his job falls sufficiently within the first of the named Cranman categories. 866 So.2d at 1119 (“Hudson’s activities are comparable to the activities referred to in Cranman as a state agent’s ‘exercising his or her judgment ... [in] ... allocating resources [or] negotiating contracts.’”). The majority, nevertheless, holds that “[fjorwarding a maintenance manual does not fall within the parameters of the exercise of judgment described in the ... illustrative examples set forth in Cranman,” 866 So.2d at 1120, thereby holding that Hudson has failed to satisfy the second step in the State-agent immunity test.

The majority cites no authority that defines or delimits what part of the exercise of judgment in “allocating resources [or] negotiating contracts” is entitled to protection, and what part is not entitled to protection. The majority does not articulate any principle that would permit a State-agent defendant in Hudson’s position or a plaintiff in Haston’s position to discern when an exercise of judgment lies within the “examples” set forth in Cranman, and when an exercise of judgment lies outside those “examples.” The majority does not explain why the judgments Hudson makes when he reviews a bid according to prees-tablished formulas such as statutorily mandated fire codes are entitled to immunity, but the judgments he makes regarding whether and how to distribute the materials he receives and reviews in conjunction with the bid process are not entitled to immunity.

It appears that this Court today comes almost full circle. Before Cranman, the test applied to State actors was whether their acts were discretionary or ministerial. Today, the Court tells us that sovereign immunity applies only to selected State actors, namely, the five court-created categories of actors selected by the Cran-man plurality. For those State actors who fall within one of the five categories, a further test is to be applied, one that sounds suspiciously like the old discretionary function/ministerial duty test. We are to decide whether the specific act for which liability is being sought against the State actor is an exercise of judgment or is ministerial. In my dissent in Cranman, I noted that generally “the discretionary/ministerial determination will dictate whether discretionary-function immunity is available to the State agent or not.” 792 So.2d at 414 (See, J., dissenting). “ ‘A ministerial act envisions direct adherence to a governing rule or standard with a compulsory result. It is performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action.’ ” Ex parte Alabama Dep’t of Forensic Sciences, 709 So.2d 455, 458 (Ala.1997)(quoting 57 Am.Jur.2d Municipal, County, School and State Tort Liability § 120 (1988)). By way of contrast, a discretionary function

“ ‘requires an exercise in judgment and choice as to what is proper.... It involves the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.... A function is discretionary when it devolves to the officer to determine whether he should perform a certain act and, if so, in what particular way.’ ”

709 So.2d at 458 (quoting 5.7 Am.Jur.2d § 119). Thus, I have no objection to stating expressly what I believe was already the law, that to qualify for State-agent immunity the actor against whom liability is being sought must have exercised judgment. However, I must again object to the arbitrary exclusion of State actors from the application of the doctrine.

I noted in Cranman that, “where the officer is expected to exercise judgment, this Court encroaches on executive or legislative powers when it imposes liability on that officer for his decision, thereby imper-missibly affecting the decision-making of a coordinate branch of government.” 792' So.2d 392, 414 (See, J., dissenting). State-agent immunity is intended, in part, to prevent a State agent from being so burdened by legal actions that he is incapable of properly performing his job.

. The theory of the majority decision in this case is that this Court, first, has selected only certain State actors to whom the doctrine of sovereign immunity will apply, and, next, when an action is brought, the trial court will examine each step of a qualified actor’s conduct to determine whether any step was ministerial. If the State agent failed to perform a ministerial step, the alleged failure to perform will subject the State agent to a trial for a jury to decide whether that failure was the cause of an injury. Therefore, contrary to the balancing of interests intended in the constitution, the harm of spending time in litigation is imposed on State actors. See Cranman 792 So.2d at 415-16 (See, J., dissenting)(arguing that the rule announced in Cranman was counter to the “balancing of the policies of §§ 18, 14, and 43, of the Constitution of Alabama of 1901”). In practice, application of this two-part Cranman test as it is being applied today will mean that after sufficient discovery, a well-drafted pleading will survive a motion to dismiss on State-agent immunity grounds because some aspect of the State-agent’s job will always be found to be ministerial; therefore, the agent will not be immune from suit as to that ministerial act, which can then be linked to the injury in much the way Thomas Wolfe links our lives to the London cutpurse’s going unhung.

Hudson argues in his mandamus petition that in his case, “any duty of his which may have been associated with the repair and maintenance of the bleachers would substantially fall within the planning level activities of the bid proposals he was actively involved in preparing on the [school board’s] behalf.” (Petition at 25.) Hudson further argues that “even assuming Mr. Hudson actually received the bleacher maintenance manual and failed to pass it along, his decision not to inspect should not be second guessed in hindsight.... Mr. Hudson’s failure to act here, like the defendants in [Byrd v. Sullivan, 657 So.2d 830 (Ala.1995) ], may be questionable or subject to criticism, but his actions involved his ‘personal deliberations, decisions, and judgments in the performance of [his] job’ as purchasing foreman.” (Petition at 28-29, citing Byrd v. Sullivan, 657 So.2d 830, 883 (Ala.1995) (quoting White v. Birchfield, 582 So.2d 1085, 1087 (Ala.1991))).

The majority does not explain why in the case before us Hudson is entitled to State-agent immunity as to some of the document analysis he performed as purchasing foreman, but not entitled to State-agent immunity as to the rest of the document analysis he performed as purchasing foreman. In this case, even assuming that Hudson had a ministerial duty to pass along maintenance manuals, Hudson was required to exercise judgment in determining what materials he must pass along to what other people in the school system.

I believe that Hudson demonstrates that he is entitled to the mandamus relief he seeks. I believe that Hudson is entitled to State-agent immunity because he was exercising judgment in his capacity as the purchasing foreman for the school system, and I am not prepared to parse his performance of that responsibility into elemental parts. I therefore dissent.

      . Haston introduces in support of this claim a one-page photocopy of a portion of rules that appear to be from the NFPA. Haston does not offer a title for the document, nor does anything on the page actually indicate that the document represents NFPA rules in force at the time of the accident. Haston cites in his brief to § 102-5-6.2(c) (1995), but he fails to produce a photocopy of that section with his supporting exhibits. The photocopy Haston provides in his exhibits accompanying his brief would be cited § 102-16-5-8.2(c). The bottom of the page in the exhibit indicates that the photocopy comes from a 1992 edition of the work.

      . Cranman held:
      "A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's
      “(1) formulating plans, policies, or designs; or
      "(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
      “(a) making administrative adjudications;
      "(b) allocating resources;
      "(c) negotiating contracts;
      "(d) hiring, firing, transferring, assigning, or supervising personnel; or
      "(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
      "(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers' arresting or attempting to arrest persons; or
      "(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.”
      792 So.2d at 405.

      . I stated in Cranman:

        “Discretionary-function immunity requires a balancing of the competing policies of the right to a remedy, Art. I, § 13, Ala. Const. of 1901, and sovereign immunity, Art. I, § 14, Ala. Const. of 1901, in light of the separation-of-powers principle of Art. Ill, § 43, Ala. Const, of 1901. Historically, this balancing was commonly accomplished by determining whether the State-agent’s actions were 'discretionary' or were 'ministerial.' See, e.g., Taylor v. Shoemaker, 605 So.2d 828 (Ala.1992); Phillips v. Thomas, 555 So.2d 81 (Ala.1989); Bell v. Chisom, 421 So.2d 1239 (Ala.1982); DeStafney v. University of Alabama, 413 So.2d 391 (Ala.1981).”
      792 So.2d at 413-14 (See, J., dissenting; footnotes omitted).

      . In DeStafney v. University of Alabama, 413 So.2d 391, 395 (Ala.1981), the Court adopted the discretionary function/ministerial duty dichotomy. The Court stated the issue as follows:
      "In the instant case, then, the dispositive issue is twofold: 1) Is the suit against the individual State employee, in effect, a suit against the State? and 2) Under the allegations of tortious injury, is the employee defendant entitled to substantive immunity because she was engaged in the exercise of a discretionary public function?”
      413 So.2d at 395. The Court then held:
      "|T]he Restatement’s [ (Second) of Torts (1974) ] doctrine of substantive immunity may yet be invoked if the official or employee 1) is engaged in the exercise of a discretionary function; 2) is privileged and does not exceed or abuse the privilege; or 3) is not negligent in the performance of his responsibility.”
      413 So.2d at 395.

      . I objected that the Cranman opinion itself was not well-founded, because the method it used to hold that the defendant physicians were not entitled to State-agent immunity was, first, to create categories of immunity, and then to find that "the defendant physicians are not entitled to State-agent immunity because they '[do] not fit within any category of conduct recognized by the restated rule as immune.’ " 792 So.2d at 416 (See, J., dissenting)(alterations in original).

      . One problem with Cranman's "illustrative examples” is that they are not analytically discrete categories. For example, category 3 in Cranman states that a State-agent is immune when "discharging duties imposed ... by statute, rule, or regulation ...” 792 So.2d at 405. Category 4 states that a State-agent is immune when "exercising judgment in the enforcement of the criminal laws of the State....” 792 So.2d at 405.

      . The majority states: "Bid proposals necessarily incorporate safety codes, and Hudson's job required him to analyze those codes in evaluating bids on specific projects.” 866 So.2d at 1119. The majority then finds that this exercise of judgment is immune. 866 So.2d at 1120.

        .Cranman analysis is limited only to questions of State-agent immunity. 792 So.2d at 405 ("We therefore restate the rule governing State-agent immunity....”). There are other sources of immunity as well. The State itself is immune from suit under § 14, Ala. Const. 1901. "An action against a sheriff is 'essentially a suit against the state' ... Accordingly, we have held: '[A] sheriff ... is immune ... from suit....' ” King v. Colbert County, 620 So.2d 623, 626 (Ala.1993). Judges are immune from suit under the doctrine of "judicial immunity.” See, e.g., City of Bayou La Batre v. Robinson, 785 So.2d 1128, 1132-34 (Ala.2000); Almon v. Gibbs, 545 So.2d 18, 19-20 (Ala.1989). The Court has extended judicial immunity to cover "magistrates and clerks of court.” City of Bayou La Batre, 785 So.2d at 1133.

      . In Cranman this Court recognized that "the State's immunity is constitutionally based, [and] neither the Alabama Legislature nor this Court has the power to waive the State's immunity from suit." 792 So.2d at 399 (footnotes omitted). The .Cranman plurality also conceded that "the vulnerability of State agents to suit, if not constrained, could lead to excessive judicial interference in the .affairs of coequal branches of government, contrary to § 43, [Ala. Const. of 1901].” 792 So.2d at 400-01. In Armory Commission of Alabama v. Staudt, 388 So.2d 991, 992 (Ala.1980), this Court observed: "Whether a governmental body is immune from suit cannot turn on labels placed on the body by the legislature. Were it otherwise, the legislature could circumvent the constitutional prohibition by merely delegating a state function to a separate legal entity....” Similarly, insofar as immunity is mandated by § 14, Ala. Const. of 1901, this Court cannot simply relabel State agents in order to deny them immunity from suit.

      . In order to apply the new two-part Cran-man analysis, the main opinion breaks Hudson’s duties down into a series of discrete tasks, and then evaluates each aspect of Hudson's job to see if that particular function is immune. " The main opinion first states: "Hudson also argues that his duties as purchasing foreman were not ministerial. Again, we recast this issue into the context of the exercise of judgment within the framework of the Cranman analysis." 866 So.2d at 1118— 19. The main opinion' then considers how Hudson reviewed contracts: "Bid proposals necessarily incorporate safety codes, and Hudson's job required him to analyze those codes in evaluating bids on specific projects.” 866 So.2d at 1119. The main opinion concludes that that task falls under Cranman protection. The main opinion's analysis continues, however: "Haston finally argues that Hudson's job included passing along the maintenance manual he received from Garner & Associates for the bleachers ... [and] that doing so was a ministerial duty.... Again, we recast the issue in terms of the standard set forth in Cranman." 866 So.2d at 1119. The majority then holds that Hudson's duty of "[florwarding a maintenance manual does not fall within ... the exercise of judgment described ... in Cranman.” 866 So.2d at 1120.

      . Thomas Wolfe, Look Homeward, Angel 3 (Charles Scribner’s Sons 1957):
      “Each of us is all the sums he has not counted: subtract us into nakedness and night again, and you shall see begin in Crete four thousand years ago the love that ended yesterday in Texas.
      "The seed of our destruction will blossom in the desert, the alexin of our cure grows by a mountain rock, and our lives are haunted by a Georgia slattern, because a London cutpurse went unhung. Each moment is the fruit of forty thousand years. The minute-winning days, like flies, buzz home to death, and every moment is a window on all time.”


source: Caselaw Access Project

author: HARWOOD, Justice.

license: Public Domain

text:
    James Harvey TIPLER v. ALABAMA STATE BAR.
    1011865.
    Supreme Court of Alabama.
    March 28, 2003.
    Rehearing Denied May 30, 2003.

      James Harvey Tipler of Tipler Law Firm, P.C., Andalusia.

      J. Anthony McLain and Milton L. Moss, office of general counsel, Alabama State Bar.
   HARWOOD, Justice.

On August 15, 2000, the general counsel of the Alabama State Bar (“the Bar”) filed formal charges against attorney James Harvey Tipler. The Bar’s complaint presented five charges, alleging violations of the following Alabama Rules of Professional Conduct: Rule 1.15(a), Rule 1.15(b), Rule 1.15(c), Rule 8.4(c), and Rule 8.4(g), based on allegations that Tipler failed to satisfy a $487,714.80 referral fee agreement entered into between him and Francis “Sonny” James, the referring attorney. Tipler filed an answer on September 18, 2000, denying the allegations contained in the Bar’s complaint. On March 20 and 21, 2001, a hearing was held before the Disciplinary Board of the Alabama State Bar (“the Disciplinary Board”). On March 22, 2001, the Disciplinary Board issued a “Report and Order,” finding Tipler guilty of the charge that he had violated Rule 1.15(c), Ala. R. Prof. Conduct, and not guilty as to the other charges. Tipler was suspended from the practice of law for 91 days, upon the condition that the suspension would be reduced to 30 days if within 30 days of the date of the Report and Order Tipler deposited a certain sum of money into the trust account of either the attorney representing him in the disciplinary proceeding or the attorney representing him in a civil action filed by James. Tipler was also assessed for all costs incurred as a result of the proceedings. Thereafter, Tipler filed a motion to extend the time within which he would be required to deposit the required funds into the trust account of either of his attorneys; that motion was denied. On April 5, 2001, Tipler filed a “notice of appeal” to the Board of Disciplinary Appeals (“the Board of Appeals”) of the Alabama State Bar. The Board of Appeals issued a “final order” on June 19, 2002, affirming the decision of the Disciplinary Board. Tipler thereafter timely appealed to this Court. The final brief associated with the appeal was filed with this Court on October 15, 2002.

The record supports the conclusion that on December 10, 1993, Charles Bentley, a client of James, who was a principal in James & James, a law firm in Andalusia (“the James firm”), entered into a contract with the firm to represent him in a medical-malpractice/wrongful-death ease arising out of the death of his wife. On December 13, 1993, James referred Bentley’s case to Frank Tipler, Tipler’s father, of the Andalusia law firm of Tipler & Tipler. Pursuant to the referral letter sent to Frank Tipler by James, Tipler & Tipler would be entitled to 60% of any legal fees but it would be obligated to pay all costs associated with the litigation. Subsequently, Tipler became the lawyer responsible for Bentley’s case. On April 13, 1994, Bentley signed a “retainer agreement” prepared by Tipler & Tipler, which established a 50% attorney fee in the event there was any recovery on Bentley’s claims. That agreement stated:

“By this instrument, I employ TI-PLER and TIPLER, attorneys at law, to represent me in connection with the medical negligence case ..., and I agree to pay said attorneys a sum equal to 50% percent of all amounts recovered in this matter, plus any costs expended by them on my behalf, to be deducted after the fee is calculated, and I grant them a lien on any amounts recovered in this matter.
“If there is no recovery, I will owe said attorneys nothing.”

(Capitalization original.) Tipler filed a complaint on behalf of Bentley; James was designated in the complaint as being “of counsel.”

In 1997, Tipler tried the Bentley case before a jury in the Covington County Circuit Court, obtaining a verdict for the plaintiff of $2 million. The trial court’s judgment entered on that verdict was appealed, and was affirmed' by this Court in McKowan v. Bentley, 773 So.2d 990 (Ala.1999). The total judgment amount ultimately due, calculating interest that had accrued during the appeal, was $2,438,574.06. At the conclusion of the appeal, with Tipler’s knowledge and approval, $659,261.20 of that judgment was transmitted by counsel for the defendant directly to the Internal Revenue Service and the Alabama State Revenue Department to satisfy tax liens filed against Ti-pler’s ’ property. The • remaining $1,779,312.36 was then remitted to Tipler.

On September 22, 1999, he deposited that amount into his attorney trust account. The day before that deposit, the balance in the trust account was only $12,210.27. According to the bank records relating to the trust account, shortly after the $1,779,312.36 deposit, Tipler wrote a check out of the trust account for $50,000 payable to the Tipler Law Firm, which was deposited into the firm’s operating account. Also soon after September 22, Tipler sent a check drawn on the trust account in the amount of $279,731.08 to the “Destín Bank,” for payment on a line, of credit he had with that bank. That check cleared the trust account October 4, 1999. At points between October 7 and 13, 1999, Tipler made disbursements to, or on behalf of, Charles Bentley and David Bentley, Charles’s son who was entitled to share equally in the net recovery, totaling $1,194,380.29. That amount represented the balance remaining of their $1,219,287.03 (50% of the $2,438,574.06 total recovery), after Tipler deducted expenses of litigation aggregating $24,906.74. There is no dispute that the Bentleys received all of the proceeds to which they were entitled under their attorney fee agreement with the Tipler Law Firm. However, there is equally no dispute that the payments of the tax liens, the payment to the Tipler Law Firm’s operating account, and the payment to the Destín Bank — totaling $988,992.28 — used up all but $230,294.75 of the proceeds allocable to attorney fees. The trust account records placed in evidence reflect that by October 19, 1999, only $15,995.74 remained in that account.

On October 7, 1999, Tipler faxed a letter to James, essentially advising him that Tipler believed there was an- ethical problem with the referral fee. Also on October 7, Tipler transferred $200,000 out of the trust .account to Copeland, Franco, Screws & Gill, P.A., a Montgomery law firm, to settle' a lawsuit brought against Tipler and his father by AmSouth Bank. Tipler testified that he made this transfer only “after we determined we were not going to pay [James’s referral] fee.” He explained that he had met with Dana Matthews, an attorney who practiced law in Florida and who had handled a prior “bar matter” for Ti-pler, at a restaurant in Florida on either October 6 or 7, and that at that time Tipler made “the final decision” not to pay the referral fee; shortly, thereafter he transmitted the October 7 letter to James. Ti-pler testified before the Disciplinary Board that as of October 7, 1999, although he did not have in the trust account funds sufficient to pay the $487,714.80 referral fee due James under the referral letter providing that James would get 40% of any recovery, he could have paid it out of a line of credit available to him, but would have then had to pay interest on the money thus advanced to him. “It was obvious I was having some financial issues and I know that. That’s there. But I had the capability of paying it and I was going to pay it.”

Tipler told the Disciplinary Board that he was aware of the referral of the Bentley case to his father by James, but that he was not initially aware of the letter from James to his father documenting the referral, or of the fee contract between James and Bentley that allegedly accompanied the letter; he stated that he did not learn of the existence of those documents until later, at a point in time he could not precisely reconstruct. He explained that after Bentley’s case was referred to his firm, it was directed “to my attention because I did all the medical negligence work. My dad was not doing anything at that point because he was in a declining state of health, so I started representing Mr. Bentley.” Tipler testified that when he finally had access to the fee contract between the James firm and Bentley, he saw that it contained a clause that would cause the attorney fee to be significantly greater than the amount the client would receive under a straight 50% contingency-fee agreement. The provision in question stated that, in addition to receiving 50% of any recovery, “[s]aid attorneys shall receive all penalty and interest that may be allowed by any Appellate Court in case of an appeal, for their services.” Tipler testified that he became aware of the “penalty-and-interest” provision in the fee contract between Bentley and the James firm sometime between September 22, 1999, and October 7, 1999, upon his receipt by fax of a copy of the James firm’s fee contract. Tipler explained that the fee contract between Bentley and James was not in his file, so he had requested that the James firm fax a copy to him. He testified that upon then becoming aware of the penalty-and-interest provision, he discerned what he believed to be an “ethical and legal” problem and decided to withhold payment of a referral fee to James. James testified, however, that Tipler would have received a copy of his fee contract with Bentley when he referred the ease to Tipler & Tipler in 1993. Tipler acknowledged that before he became aware of the interest-and-penalty provision, he and James had had confirmatory discussions regarding the disbursement of the attorney fees pursuant to the referral agreement. Specifically, Tipler testified:

“Q: Prior to the time that this case was affirmed and after you tried it, did you have any conversations with Mr. James about the ongoing status of it?
“A: Prior to the time of the judgment or prior to the appeal being—
“Q: Prior to the time you got the judgment or the time it was affirmed?
“A: Yes, I did.
“Q: What was the general nature of those conversations?
“A: Occasionally he would ask me how the appeal was going, and I said, we’re just waiting. That was basically most of the conversations. I remember when I told him it was affirmed, we had more of a conversation then.
“Q: Was his expectation based on your conversation with him that he was going to receive a referral fee once the money was received?
“A: Yes, he was.
“Q: There was no question about that? “A: No. It was my expectation too.”

James also testified as to his discussions with Tipler regarding the disbursement of the attorney fees before Tipler raised any question concerning the payment of a share of those fees to James. Specifically, James testified:

“Q: When did you first learn that the Supreme Court had affirmed the verdict?
“A: Let me go on. One other conversation I had with Harvey that I think is — it was prior to learning of the affirmation of the Supreme Court. I learned it was common knowledge — obviously I do a lot of work in the probate office — it was common knowledge that Harvey had a number of tax liens filed against him, substantially.
“Q: I will be glad to ask a question. At any time did you have a conversation with Mr. Tipler regarding his tax liens and how that might affect your obtaining a referral fee?
“A: Yes, I did.
“Q: What was the nature of that conversation?
“A: I actually went to see him, went over to his office and I talked to him. I said, it’s common knowledge you have these tax liens against you and I’m wondering — I said, I don’t know anything about this, but I’m wondering if it wouldn’t be something smart for me to file something into court to protect myself. ...
“Q: What did he tell you?
“A: He told me there would not be any problem with that, that there could not be any problem with that. He was well aware of his tax problems and he explained to me that they related to some of his family’s problems and some problems with Mr. Tipler’s present wife ... but he said I’m telling you, Sonny, there’s not going to be any problems. That money will go into my trust account. The IRS cannot touch that money. I will write the referral fees out of the trust account and they can’t touch the money.
“Q: When did you learn that he actually received the proceeds?
“A: I was — well, there had been a motion for rehearing filed and Harvey had asked to — sent [sic] it over to his office and asked our opinion on what I thought any response might be to do [sic], and we were looking at that.... And my young associate and I were in the courthouse up in the law library ... and there was Harvey.
“And Harvey said, Sonny, come here a minute. I have something to tell you.... He said, I just want to tell you, the insurance company brought me a check so many days ago....
“Q: Did he say anything to you about when or where he would disburse the moneys you were entitled to?
“A: He told me at that time we are going to have to let the check clear and said, we’ll disburse next week sometime. He said, I’ll get up with you and we will celebrate a victory next week....
“Q: Did Mr. Tipler get up with you the next week?
“A: Well, he didn’t.... I caught Harvey there [at Tipler’s office] at lunch and he told me — we went back into his office and we had a discussion then and he told me at that time he thought he was going to have to get an order out of the probate court affirming the distribution.
“Well, we had a little bit of discussion and naturally I asked Harvey at that time what his fee — what had been the fee.... And I asked him, I said, you know what our referral contract is and he said, I’m not sure — I don’t know what he said. I told him it was 40/60[] is what I believed it was in accordance with the letter. He said whatever it was, that’s what it was and he said he would honor it.”

Tipler also testified that he was notified by Bentley that Bentley had not been aware of the fee-splitting agreement between the two law firms, that he did not consent to such a division, and that his case had been solicited by James before it was referred to Tipler & Tipler. Tipler stated further that Bentley told him he had not signed the purported fee contract with the James firm. At the hearing before the Disciplinary Board, although Bentley could not recall signing a fee contract with James, when it was shown to him and he was asked if the signature on it purporting to be his was in fact his, he answered, “That’s my signature.” Tipler said that he could not recall the exact date on which he learned of the information regarding solicitation that he attributes to Bentley; however, he was certain that he was informed by Bentley of that information before the October 7 and October 13, 1999, disbursements of the client’s proceeds. Bentley testified before the Disciplinary Board, however, that the first time he became aware that James was claiming a fee was between October 18 and 22, 1999. Tipler testified, however, that Bentley was “mixed up on time” because he had in fact told Tipler before October 18. Ti-pler subsequently retreated from the “pri- or to October 7” dating, however, to say it could have been after that,

James corroborated Bentley’s testimony about the time frame, when he testified that he had had a discussion regarding the referral fee with Bentley sometime between October 18 and 22, 1999. James also testified that he had not solicited Bentley’s case but that Bentley had been referred to him by a mutual friend; that Bentley actively pursued the idea of James’s representing him in the medical-malpractice claim; that when James agreed to take on the case, Bentley understood that James would be referring it to Tipler & Tipler; and that Bentley had indeed signed the fee contract. Also, Linda James, Francis James’s wife and his law partner in the James firm, testified that Bentley came to the law office in December 1993 asking to see Francis and, because Francis was not present at the time, she discussed the matter with Bentley. He told her “he wanted to bring a medical-malpractice case.” He asked her to handle it and was informed that it would be referred to Tipler & Tipler. He told her he thought that “was a very good idea.” She then prepared and explained to him, and he read and signed, the necessary paperwork, including the fee contract.

Tipler testified that when he learned of the details of Bentley’s agreement with James, he believed that a potential ethical violation had occurred. Specifically, Tipler stated:

“Q: When you deposited that money on 9/22, as you see in your bank statement, was it your intention to pay Mr. James a referral fee?
“A: The only reason I hesitate at all is that at a certain point before distribution to the client I discussed this with Bar counsel, I discussed it with my client and the determination was made that it was inappropriate. I don’t know if that was the 22 or after. I don’t remember the exact date. But I expected to- pay him a referral' fee until I realized there were some problems.”

Thereafter, Tipler contacted Dana Matthews for legal advice, who although licensed to practice law in Florida was not licensed to practice law in Alabama. Ti-pler testified that Matthews advised him that the information provided by Bentley reflected violations of the Alabama Rules of Professional Conduct and would prohibit a division of the fee. Tipler stated that Matthews told him “you just can’t do it.” On October 7, 1999, after having received that advice from Matthews, Tipler faxed a letter to the James firm; that letter stated, in relevant part:

“As you know, my law practice and life have been under intense scrutiny lately. I have gone over with my attorneys all aspects of my life and practice, including the Bentley fee situation. I regret to inform you that they have advised me that there is an ethical and legal problem with the fee share which you suggest.
“I have been advised not to speak to either of you [Francis James or Linda James] about this, but to direct you to my personal attorney, Dana C. Matthews .... ”

Tipler testified that he could not remember the exact date he first had discussions with any attorneys regarding the referral-fee issue, but that it would have been in either September or the first of October 1999. Upon receipt of Tipler’s letter, James made repeated, yet unsuccessful, attempts to contact Dana Matthews by telephone and by letter. On October 15, 1999, James filed a complaint with the Bar against Tipler as a result of Tipler’s failure to pay him $487,714.80, the 40% referral fee he believed he was entitled to.

On December 8, 1999, Tony McLain, general counsel for the Bar, sent a letter to Steven Schmitt, an Alabama attorney hired by Tipler after James filed the complaint with the Bar, in response to a letter Schmitt had sent him. In his letter McLain stated that he agreed the “proper forum” to resolve the referral-fee dispute between Tipler and James was in the court. At the hearing, McLain testified, “At that point we didn’t have any documents from Mr. Tipler to show us how those disbursements had occurred. And as I recall, at this juncture what we were telling you is if they were going to litigate this in a civil forum, we would discontinue our investigation for now as it relates to that....” On December 20, 1999, James sued Tipler in the Covington County Circuit Court for the referral fee.

The Disciplinary Board found Tipler guilty of a violation of Rule 1.15(c), Ala. R. Prof. Conduct, which states:

“When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be •kept separate by the lawyer until there is an accounting and a severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept by the lawyer until the dispute is resolved.”

(Emphasis added.) In its Report and Order, the Disciplinary Board stated, in pertinent part:

“Just prior to the time for distribution to the client, and to the James firm, [Tipler] made a unilateral decision that payment to the James firm might be unethical based upon the language contained in the original fee agreement between the plaintiff and the James firm, although that fee agreement had been supplanted by a subsequent agreement between the plaintiff and the Tipler firm. Approximately a week later, [Ti-pler] also decided, or discovered, that no fee should be paid to the James firm because the mutual client then claimed that the case had been solicited by the James firm and that the client objected to the James firm receiving any portion of the fee. There was substantial and ongoing contact, inquiry, and discussion between [Tipler] and Sonny James concerning the expected date of disbursement, and only late in the process was Sonny James informed that there was a legal or ethical problem with the payment of the previously agreed fee.
“Faced with what [Tipler] describes as a legal or ethical problem in paying the James firm, the only action he took was to seek the advice from Florida counsel. He did not seek an opinion from the Office of General Counsel of the Alabama State Bar, nor did he[ ] consult an Alabama lawyer, especially in light of the large amount of money in dispute. Another option available would have been to interplead the disputed funds into the appropriate court.
“After [Tipler] had full knowledge that there was a dispute or question as to the division of the legal fee, which was in his possession, and in his trust account, [Tipler], nevertheless, transferred all the remaining fee to either his general operating account, or to two other recipients. [Tipler] transferred $200,000 to pay a claim against him, the amount and payment date of which had been agreed upon by [Tipler’s] lawyer and a third party. Another sum of $279,000 was sent to a bank in Destín, Florida[,] as payment on [Tipler’s] line of credit loan.
“The [Disciplinary Board] finds that [Tipler] had a pressing need for the subject funds, and would not have been able to easily meet the two debt obligations mentioned above if the James firm had been paid at that time, especially in view of the levy of the tax authorities.
“Clearly, both [Tipler] and another person claimed interest in the property (money) in the possession of [Tipler] in his trust account. The property was not kept in a separate account pending resolution of the dispute and, instead, [Ti-pler] used all of the disputed property to his own use, all in violation of Rule 1.15(c).”

In arriving at an appropriate disciplinary sanction, the Disciplinary Board considered the various categories of aggravating factors and mitigating factors prescribed by the applicable Alabama Standards for Imposing Lawyer Discipline, including the fact that Tipler had been previously disciplined by the Alabama State Bar as well as by the Florida State Bar for violations of each state’s respective Rules of Professional Conduct. The Disciplinary Board suspended Tipler from the practice of law for 91 days, effective May 1, 2001, upon the condition that if he deposited $487,714.80 into the trust account of either of his attorneys within 30 days of the order, the suspension would be reduced to SO days.

The Board of Appeals, in its final order affirming the Disciplinary Board’s order, addressed Tipler’s contention, which he reiterates on appeal, that the finding of a violation of Rule 1.15(c) was clearly erroneous, as follows:

“[Tipler] argues that the findings of the Disciplinary Board based upon the record as a whole are clearly erroneous. We disagree. The record indicates that [Tipler] only became involved in this case after the case was referred to his father by another attorney. There was a written agreement regarding the division of attorney’s fees between [Tipler] and the referring attorney. More than five and one-half years passed following this agreement, and [Tipler] at no time disputed his obligations under the agreement regarding the division of attorney’s fees. It was not until after the money was received by [Tipler] that any problems or concerns arose.
“A review of the record reveals that [Tipler] never voiced or otherwise communicated any concern or other problem with the referring attorney until after the Internal Revenue Service and the State Department of Revenue levied and removed from the proceeds of the verdict monies owed by [Tipler] to these agencies while they were still in possession of the judgment debtor. [Tipler] acknowledged that he expected to pay a referral fee until he realized there might be some problems with him and the referring attorney and the Alabama State Bar if he did. (See 195-197). However, [Tipler] never contacted the Bar for advice despite the provisions of Rule 18 of the Rules of Disciplinary Procedure[,] which provide: ■
“ ‘RULE 18. CONDUCT NOT SUBJECT TO DISCIPLINARY ACTION. If, before engaging in a particular course of conduct, a lawyer makes a full and fair disclosure, in writing, to the General Counsel, and receives therefrom a written opinion, concurred in by the Disciplinary Commission, that the proposed conduct is permissible, such conduct shall not be subject to disciplinary action.’
“The Order by [the Disciplinary Board] finds from the testimony and a review of the exhibits that [Tipler] had a pressing need for the subject funds and would not have been able to easily meet his debt obligations if he paid the referring firm given the actions of the Internal Revenue Service and the State Department of Revenue. Our review of the record leads us to the same conclusion.
“Thus, we cannot find that the decision of [the Disciplinary Board] was ‘clearly erroneous’ under the evidence presented and we cannot reverse on this basis.”

Addressing Tipler’s contention, which he phrases for review on appeal as “[t]he punishment imposed by [the Disciplinary Board] was manifestly excessive in relation to the needs and protection of the public, the profession and the administration of justice,” the Board of Appeals stated:

“The decision entered by [the Disciplinary Board] suspended Mr. Tipler for 91 days but afforded [Tipler] the opportunity to deposit $487,714.80 into his trust account within 30 days following the date of the Order. Since [Tipler] had testified during the course of the hearing that the reason he had not paid the referral fee to the referring attorney was that he found himself in a dilemma and that he believed that there was a reasonable possibility that the Bar might bring an action against him for paying a referral fee and had further testified that he had the capability of paying the fee and would pay the fee, it appears that [the Disciplinary Board], in its decision, afforded [Tipler] the opportunity to mitigate his punishment. The Order provided that if [Tipler] deposited the disputed proceeds into his attorney’s trust account within 30 days the suspension would have been only 30 days. The effect of the Order afforded [Tipler] an opportunity to do what he had testified he could do.
“The report issued by [the Disciplinary Board] outlines in great detail the factors set forth in Rules 3, 4, 5, 6, 7, and 8 of the Alabama Standards for Imposing [Lawyer] Discipline and that it made specific findings consistent with those standards. The Order found that [Tipler] had three aggravating factors and no mitigating factors. The form or extent of discipline imposed bore a direct relationship to [Tipler’s] conduct, was not manifestly excessive, and was neither arbitrary nor capricious.
“This Board does not believe that the punishment imposed by [the Disciplinary Board] amounts to a ‘death penalty’ and therefore should be reversed. On the contrary[,] we find that the record in this case and the reasoned Order entered by the Hearing Officer of [the Disciplinary Board] carefully outlining the review and applications of the standards set forth by the Rules should not be disturbed.”

As noted, Tipler contends on appeal (1) that based on the record as a whole the Disciplinary Board’s finding of a violation of Rule 1.15(c), Ala. R. Prof. Conduct, was clearly erroneous, and (2) that the punishment imposed by the Disciplinary Board was manifestly excessive.

Rule 5.1(d), Ala. R. Disc. P., states, in pertinent part:

“When proceedings before the Board of Disciplinary Appeals are conducted, the Board of Disciplinary Appeals shall affirm the decision under review unless it determines that, based on the record as a whole, the findings of fact are clearly erroneous or that the form or extent of the discipline imposed, when considered under the Alabama Standards for Imposing Lawyer Discipline, (1) bears no relation to the conduct, (2) is manifestly excessive or insufficient in relation to the needs and protection of the public, the profession, or the administration of justice, or (3) is arbitrary and capricious.”

Concerning the standard of review we should employ upon this appeal, Tipler states in his brief to this Court that he “is aware of no decision which has established a standard of review” for such an appeal, but asserts that “[t]he standard of review is whether the [Disciplinary Board] and the Board [of Appeals] were wrong.” (Ti-pler’s brief at 2.) The Bar suggests a somewhat different standard, commenting and proposing as follows:

“The Supreme Court of Alabama has inherent plenary powers of review in all matters involving the discipline of lawyers in this State. Since the Board of Disciplinary Appeals was required by Rule 12, Alabama Rules of Disciplinary Procedure, to review the Disciplinary Board’s decision on a ‘clearly erroneous’ standard, this Court must consider whether the Board of Disciplinary Appeals was incorrect in concluding that the Disciplinary Board’s decision was not ‘clearly erroneous’ based on its review of the record as a whole. In doing that, this Court must necessarily also look to the record as a whole from the Disciplinary Board’s proceeding.”

(Bar’s brief at 2.)

We agree with the Bar’s comment that the “clearly erroneous” standard is applicable to the Board of Appeals’ review of decisions of the Disciplinary Board, but we note that the standard is required by Rule 5.1, not Rule 12.

Although we articulated the standard of our review in Asarn v. Alabama State Bar, 675 So.2d 866, 878 (Ala.1996), the appeal procedure then prescribed by the Rules of Disciplinary Procedure was markedly different from that now in effect. When Asam was decided, Rule 5.1 had not yet been adopted; the Board of Appeals did not exist; and appeals from a Report and Order of the Disciplinary Board came directly to this Court. See Rule 12(f), Ala. R. Disc. P., before amendments effective August 1, 2000. Now, of course, an appeal from the Disciplinary Board must go first to the Board of Appeals, and Rule 5.1(d) provides for the scope and standard of the Board of Appeals’ review. Rule 12(g) now provides that “[t]he parties have a right to appeal an adverse decision of the Board of Disciplinary Appeals to the Supreme Court of Alabama....” No standard of review is prescribed for that second appeal.

We conclude that whether the Board of Appeals properly applied the “clearly erroneous” standard of review to the Disciplinary Board’s findings of fact is a question of law. Likewise, all other legal conclusions in the final order of the Board of Appeals present questions of law to us. This Court reviews questions of law de novo. National Ins. Ass’n v. Sockwell, 829 So.2d 111 (Ala.2002); Moss v. Williams, 822 So.2d 392 (Ala.2001); and Reed v. Board of Trustees of Alabama State Univ., 778 So.2d 791 (Ala.2000). Such a de novo review results in this Court’s applying the same standard the Board of Appeals applied as to all questions of law, including the application by the Board of Appeals of the “clearly erroneous” standard to the Disciplinary Board’s findings of fact. Thus, we must determine whether the Disciplinary Board’s findings of fact were clearly erroneous.

“ ‘A finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). See also Hamilton v. State, 677 So.2d 1254 (Ala.Crim.App.1995); and Yancey v. State, 813 So.2d 1, 8-9 (Ala.Crim.App.2001) (“a ruling is clearly erroneous if a reviewing court is left with the belief that a mistake has been committed”). Therefore, we will determine whether the evidence in the record as a whole compels us to a “firm conviction” that the Disciplinary Board was in error in finding Tipler in violation of Rule 1.15(c) and whether the sanction imposed by the Disciplinary Board was, using the language of Rule 5.1(d), “manifestly excessive,” as Tipler contends.

The Disciplinary Board’s findings of fact were in large part predicated upon the testimony personally given before it by Tipler, James, and Linda James. The Disciplinary Board was entitled to resolve all questions of the credibility of those witnesses and to determine all issues of conflicting testimony; and the Board of Appeals, and this Court, are to accord the Disciplinary Board’s findings the benefit of the ore tenus presumption. See, e.g., Vann Express, Inc. v. Bee Line Express, Inc., 347 So.2d 1353, 1358 (Ala.1977)(“ ‘the ore tenus rule mandates that a presumption of correctness be accorded a hearing examiner’s findings of fact when he alone has heard the evidence,’ ” quoting Southern Haulers, Inc. v. Alabama Pub. Serv. Comm’n, 331 So.2d 660, 663 (Ala.1976)). See also McRae v. General Ret. Sys. for Employees of Jefferson County, 536 So.2d 71 (Ala.Civ.App.1988); State Health Planning & Res. Dev. Admin. v. Rivendell of Alabama, Inc., 469 So.2d 613 (Ala.Civ.App.1985).

The facts critical to our analysis of the issues presently before us are (1) that Tipler knew, and had acknowledged to James, before October 7, 1999, that the James firm was entitled to a portion of the proceeds from the Bentley case under a referral agreement between it and the Ti-pler Law Firm, (2) that both before and after a dispute had arisen as to James’s entitlement to that referral fee, Tipler used the bulk of the moneys in dispute to satisfy personal obligations rather than holding the portion of that money in dispute until the referral-fee dispute was resolved. In the process, the funds were all but completely depleted.

When Tipler received and began disbursing the proceeds from the Bentley case, he was aware, because of his knowledge of a referral arrangement between his firm and the James firm, that James, i.e., “another person,” claimed an interest to a portion of those proceeds. Tipler was aware of James’s interest in those proceeds from the beginning of his handling of the case even if the evidence is uncertain as to when Tipler became aware of the exact amount of that interest. A dispute arose as to James’s interest in those proceeds at some point between September 22, 1999, and October 7, 1999, when Tipler allegedly became aware for the first time of the interest-and-penalty provision of the fee contract between the James firm and Bentley. He states that he also became aware before October 7 of Bentley’s assertions that James had solicited the case and that he was not aware of any fee contract between him and the James firm, but the testimony of Bentley and James contradicted that statement. When Tipler became aware of a dispute as to the referral fee, he was required by Rule 1.15(c), Ala. R. Prof. Conduct, to keep the $487,714.80 in dispute in a separate account until the dispute was resolved. However, as Tipler admitted, he did not retain the disputed proceeds in his attorney trust account or in any other way attempt to k,eep them “separate” pending resolution of the dispute. Rather, he drew checks directly against his attorney trust account to the extent that the “portion in dispute” was almost all used to pay Tipler’s personal or firm financial needs. In light of these facts, we cannot conclude with “definite and firm conviction,” that the Disciplinary Board erred in its factual finding that Tipler violated Rule 1.15(c).

As noted, Tipler contends that the 91-day suspension imposed by the Disciplinary Board was manifestly excessive. Our review of the record shows that the Disciplinary Board afforded Tipler the opportunity to reduce his suspension to 30 days if he deposited $487,714.80 into the trust account of either of his attorneys, as he had testified he was readily financially capable of doing and as Rule 1.15(c) requires, within 30 days of the date of the Disciplinary Board’s order. That deposit not having been forthcoming, and given Tipler’s prior reprimands by the Bar, we conclude that the Disciplinary Board’s 91-day suspension of Tipler from the practice of law was not manifestly excessive.

For the foregoing reasons, Tipler’s conviction for violating Rule 1.15(c), Ala. R. Prof. Conduct, and the sanctions imposed on him by the Disciplinary Board, are due to be affirmed.

AFFIRMED.

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

      . Tipler testified that his father died in December 1998.

      . Apparently at some point the name of the law firm was changed from Tipler & Tipler to the Tipler Law Firm.

      . Tipler represents in brief that the interest on the judgment after the appeal was concluded “totaled over $438,574.06.” At the hearing he testified that a disbursement according to the James firm fee contract would have resulted in the attorney’s, getting $1,400,000 and the client’s getting $1,000,000.

      . We infer that James meant he was to receive 40% and Tipler was to receive 60% in accordance with the terms of the fee letter sent by James to Frank Tipler.

      . This information is supported by a signed, but unnotarized "affidavit” of Bentley in the record, which was prepared for his signature by Tipler's secretary, and by Bentley's hearing testimony.

        . The record contains no affidavit or testimony from Matthews. Tipler explained to the Disciplinary Board that "[h]e’s on a long-planned family vacation this week or he would be here.”

      . Tipler hired attorney Steven Schmitt to represent him in the action before the Bar; he hired attorney Robert D. Segall to represent him in the civil action filed by James in the Covington County Circuit Court.


author: YATES, Presiding Judge.

text:
    Barry BRYANT v. FIRST TUSKEGEE BANK.
    2010817.
    Court of Civil Appeals of Alabama.
    Nov. 15, 2002.
    Rehearing Denied Jan. 24, 2003.
    Certiorari Denied June 13, 2003 Alabama Supreme Court 1020803.

      Barry Bryant, pro se.
    Mark N. Chambless of Chambless Math, P.C., Montgomery, for appellee.
   YATES, Presiding Judge.

On February 1, 1999, First Tuskegee Bank sued Barry Bryant in the Lowndes Circuit Court. In its complaint, First Tuskegee Bank alleged that Bryant owed $69,670.17 plus interest (the amount due under a promissory note Bryant executed with the bank on September 5, 1997) and an attorney fee. Bryant listed his address on the promissory note as Burkville, which is in Lowndes County. The note provided that he would notify First Tuskegee Bank of any change in his address.

On April 30, 1999, First Tuskegee Bank moved to appoint a special process server because the sheriff had been unable to properly serve Bryant. On May 5, 1999, the trial court granted the motion. On May 20, 1999, Bryant’s aunt accepted service of the complaint at the address shown on the promissory note. Bryant did not file an answer. On October 20, 1999, First Tuskegee Bank moved for a default judgment, which the trial court granted that same day. On October 27, 1999, the trial court entered a certificate of judgment.

On November 22, 1999, First Tuskegee Bank mailed postjudgment interrogatories, seeking to discover what assets Bryant possessed. Bryant did not answer the interrogatories. On January 14, 2000, First Tuskegee Bank filed a “Motion for Discovery of Assets and Oral Examination,” which the trial court granted. The order was sent by certified mail to Bryant’s last known address; however, the order was returned as undelivered. First Tuskegee Bank learned from the United States Postal Service that Bryant had changed his address; he then was served with notice of the oral examination. On April 12, 2000, he appeared at the hearing and testified as to his assets. Subsequently, Bryant hired an attorney.

On May 1, 2000, Bryant moved to set aside the default judgment, arguing that he was never properly served with notice of the complaint. The trial court never ruled on the motion.

A writ of execution was issued from the Lowndes Circuit Court against property owned by Bryant in Montgomery County. The sheriff of Montgomery County levied against the property. The sheriffs deed reflects that notice of the sale was sent to Bryant by certified mail on September 7, 2001. Notice of the levy was posted on the bulletin board at the Montgomery County courthouse and notice of the levy and sale was published once a week for three consecutive weeks in the Montgomery Independent, a weekly newspaper. First Tuskegee Bank purchased the property at the sale on October 15, 2001.

On February 6, 2002, Bryant, now acting pro se, moved to vacate the October 20, 1999, default judgment, on the grounds that the Lowndes Circuit Court lacked jurisdiction over the case because venue in Lowndes County was improper, because, he says, he has lived in Montgomery County since August 1998 and because the promissory note was executed in Montgomery County. He also alleged in that motion that First Tuskegee Bank’s debt-collection practices were unfair. On March 6, 2002, the trial court denied the motion. Bryant appeals, arguing that the trial court erred in failing to rule on his May 1, 2000, motion, and he argues that the trial court erred in denying his February 6, 2002, motion. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

The May 1, 2000, motion to set aside the default judgment should be treated as a Rule 60(b)(4), Ala. R. Civ. P., motion for relief from judgment. On October 20, 1999, the trial court entered a default judgment against Bryant, pursuant to Rule 55, Ala. R. Civ. P. Rule 55(c) provides:

“In its discretion, the court may set aside an entry of default at any time before judgment. The court may on its own motion set aside a judgment by default within thirty (30) days after the entry of the judgment. The court may also set aside a judgment by default on the motion of a party filed not later than thirty (30) days after entry of the judgment.”

The trial court did not set aside the entry of default before issuing a certificate of judgment, nor did the court on its own motion set aside the judgment within 30 days after the judgment was final. Bryant moved to set aside the default judgment on May 1, 2000, well outside the 30-day time period prescribed by Rule 55(c) for filing a motion to set aside. Therefore, the trial court lost discretion to set aside the judgment pursuant to Rule 55(c) at the end of the 30th day after the judgment was final. However, Rule 60(b), Ala. R. Civ. P., becomes available when more than 30 days have passed since the entry of the default judgment. Ex parte King, 776 So.2d 31 (Ala.2000); Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala.1988). Therefore, we will treat the May 1, 2000, motion as a Rule 60(b) motion.

The trial court never entered an order granting or denying Bryant’s May 1, 2000, motion. Because the trial court never expressly ruled on the motion, Bryant’s May 1, 2000, motion for relief from judgment is still pending before the trial court. See Conway v. Housing Auth. of Birmingham, Dist., 676 So.2d 344 (Ala.Civ.App.1996)(plaintiff s motion for relief from judgment based on mistake or inadvertence remained pending where motion was never expressly ruled on by the trial court), but cf. Ex parte Gamble, 709 So.2d 67 (Ala.Civ.App.1998)(employee’s appeal treated as a petition for a writ of mandamus and the trial court was ordered to address the employee’s Rule 60(b) motion where the record reflected that the trial court had refused to address the merits of the motion). However, the trial court did rule on Bryant’s motion filed on February 6, 2002, denying the motion. The denial of a Rule 60(b) motion is reviewable on appeal. Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So.2d 655 (Ala.2001); Ex parte Keith, 771 So.2d 1018 (Ala.1998).

Bryant’s February 6, 2002, motion was essentially a Rule 60(b)(4) motion seeking relief from the judgment on the grounds of lack of jurisdiction because of allegedly improper venue and unfair debt-collection practices. A Rule 60(b)(4) motion must be filed within a “reasonable time.” “What constitutes a ‘reasonable time’ depends on the facts of each case, taking into consideration the interest of finality, the reason for the delay, the practical ability to learn earlier of the grounds relied upon, and the prejudice to the other parties.” Ex parte W.J., 622 So.2d 358, 361 (Ala.1993).

In Ashley v. State ex rel. Brooks, 668 So.2d 7 (Ala.Civ.App.1994), the defendant filed a Rule 60(b)(4) motion for relief from judgment two years after a consent judgment had been entered and the property that was the subject of the action condemned. The trial court denied the Rule 60(b)(4) motion as untimely. We held that the trial court did not abuse its discretion in not giving the defendant relief from the judgment where the motion was filed two years after the judgment was entered and the record reflected that the defendant had agreed to the consent judgment.

Bryant’s Rule 60(b)(4) motion filed on February 6, 2002, was untimely under the facts of this case. The default judgment was entered on October 20,1999. Bryant did not seek relief from the judgment on the grounds of improper venue or unfair debt-collection practices until February 6, 2002. Furthermore, Rule 60(b)(4) allows relief from judgment if the judgment is void. A judgment is void under Rule 60(b)(4) only if the court that rendered the judgment lacked subject-matter jurisdiction or personal jurisdiction or if it acted in a manner inconsistent with due process of law. Osborn v. Roche, 813 So.2d 811 (Ala.2001). It is important to note that a judgment is not void simply because it is erroneous, because Rule 60(b) is not intended as a substitute for appeal. R.J. Reynolds Tobacco Co. v. Cantley, 717 So.2d 751 (Ala.1998). An appeal from the denial of a Rule 60(b) motion does not bring the underlying judgment up for review, but presents only the question of propriety of the judgment denying the Rule 60(b) motion. Sanders v. Blue Cross-Blue Shield of Alabama, Inc., 368 So.2d 8 (Ala.1979).

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

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

Venue, unlike jurisdiction, is a legislative determination based on the convenience of the parties, Ingram v. Omelet Shoppe, Inc., 388 So.2d 190 (Ala.1980), and the issue whether venue is proper is deemed to be waived unless a timely objection is made, Ex parte Till, 595 So.2d 871 (Ala.1992). Therefore, Rule 60(b)(4) relief from judgment is not available on venue grounds. Additionally, Bryant is not entitled to relief from judgment on the ground of unfair debt-collection practices, because Rule 60(b) is not a vehicle for reviewing the merits of the underlying judgment. Accordingly, the judgment of the trial court is affirmed.

Bryant seeks an award of an attorney fee on appeal “for three years of research, consultations, travels, filings, and missed work.” Bryant did not seek an attorney fee at the trial court level nor would he have been entitled to one, because attorney fees are to be awarded only if they are provided for by statute, contract, or special equity, none of which are applicable in the instant case. See City of Birmingham v. Horn, 810 So.2d 667 (Ala.2001). Furthermore, Bryant was representing himself for most of the proceedings and, as a pro se litigant, he would not have been entitled to such an award. Rule 38, Ala. R.App. P., allows for “just damages and single or double costs to the appellee ” if an appeal is frivolous. Here, Bryant is the appellant, and he is not entitled to an award under Rule 38.

AFFIRMED.

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

      . If the portion of Bryant’s Rule 60(b) motion concerning "unfair debt collection practices” can be construed as a motion for relief from judgment based on fraud or some other misconduct, then it would be untimely under Rule 60(b)(3), Ala. R. Civ. P., because when a judgment is attacked by motion for fraud or misconduct, it must be filed within a reasonable time and not more than four months after the entry of judgment.


author: YATES, Presiding, Judge. MURDOCK, Judge,

text:
    Billy Joe WARREN v. Linda Sue Hill WARREN.
    2010684.
    Court of Civil Appeals of Alabama.
    Feb. 21, 2003.
    Certiorari Denied May 30, 2003 Alabama Supreme Court 1020939.
    Jane V. Floyd of Floyd, Floyd & Floyd, Gadsden, for appellant.
    Jay E. Stover of Callis, Stover & Stewart, Rainbow City, for appellee.
   On Application for Rehearing

YATES, Presiding, Judge.

APPLICATION OVERRULED.

THOMPSON and PITTMAN, JJ., concur.

CRAWLEY and MURDOCK, JJ., dissent.

MURDOCK, Judge,

dissenting.

Upon further review of the briefs and the record in considering the appellant’s application for rehearing, I have concluded that the trial court’s judgment is due to be reversed. I therefore dissent from the decision of this court overruling the appellant’s application for rehearing.


author: CRAWLEY, Judge.

text:
    In re GUARDIANSHIP AND CONSERVATORSHIP OF Rosalie Shirley McDERMOTT.
    2011181.
    Court of Civil Appeals of Alabama.
    May 2, 2003.
    Rehearing Denied June 27, 2003.

      Barbara C. Miller, Huntsville, for Rosalind McDermott.
    M. Isabelle Wells, Huntsville, for John Wyly Harrison.
   CRAWLEY, Judge.

Rosalind McDermott appeals from an order awarding John Wyly Harrison, the court representative appointed by the probate judge, a fee of $870, based on an hourly rate of $180. Although McDer-mott challenged the reasonableness of the fee charged by Harrison in the probate court, on appeal she urges this court to reverse the judgment awarding fees and order the probate judge to recuse himself from this case because Harrison made a $150 contribution to the probate judge’s campaign. McDermott, in her post-judgment motion, accused the probate judge of bias and impartiality, stating that he had a habit of appointing attorneys who contributed to his campaign as guardians, guardians ad litem, and court representatives. However, McDermott admits that she did not file a motion requesting that the probate judge recuse himself.

We cannot address the argument McDermott makes on appeal — that the probate judge should have recused himself because of the $150 contribution the court-appointed representative Harrison made to his campaign — because McDermott never sought a recusal of the probate judge in the probate court. This court cannot consider an issue raised for the first time on appeal. Sockwell v. Sockwell, 822 So.2d 1219, 1224-25 (Ala.Civ.App.2001).

In addition, the probate court considered the reasonableness of the fee charged and determined that a fee of $870 was reasonable. We review that determination with a presumption of correctness, and we will not set aside the judgment awarding fees unless we are convinced that the court misused the discretion vested in it. Army Aviation Ctr. Fed. Credit Union v. Poston, 460 So.2d 139, 141 (Ala.1984); see also King v. Keith, 257 Ala. 463, 60 So.2d 47 (1952). The court held a hearing on McDermott’s motion challenging the fee award, and, according to her postjudgment motion, McDermott’s attorney argued that other attorneys who had served the court in similar appointments had not charged more than $150 per hour, instead of the $180 per hour Harrison, was charging. However, the probate court was free to consider factors other than the customary charges of lawyers performing similar services in the community, including the time the attorney spent in the discharge of his duties, the attorney’s experience and reputation, the nature of the subject matter, and the learning, skill, and labor required to properly discharge the duties connected with his employment. See Poston, 460 So.2d at 141-142. Based on the scant record before us and the presumption in favor of the court’s determination of reasonableness, we cannot say that the probate judge misused his discretion in determining that Harrison was due a fee of $870.

AFFIRMED.

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

MURDOCK, J., concurs in the result.

      . McDermott appealed to the Alabama Supreme Court. That court transferred the appeal to this court because, it said, the case was within this court’s appellate jurisdiction.