author: PITTMAN, Judge. BRYAN, Judge,

text:
    Shirley SQUIRES and Ronald Squires v. CITY OF SARALAND.
    2030874.
    Court of Civil Appeals of Alabama.
    Nov. 23, 2005.
    Rehearing Denied March 24, 2006.

      William W. Watts III of Hudson & Watts, LLP, Mobile, for appellants.
    T. Dwight Reid of T. Dwight Reid & Associates, Mobile, for appellee.
   PITTMAN, Judge.

This appeal, transferred from the Supreme Court pursuant to Ala.Code 1975, § 12-2-7(6), concerns whether a municipality may properly require a resident of that municipality who seeks to provide day care for no more than five children per day in her house to obtain a “special exception” to a municipal zoning ordinance where (a) the municipality issued a business license to the applicant; (b) the zoning ordinance had not previously been enforced against other day-care providers in the same manner; and (c) the zoning ordinance in question refers to “day care centers,” a term that is defined in the Alabama Code to include only those facilities that provide services to more than 12 children at one time.

Facts

The City of Saraland (“the City”), in approximately 1958, adopted a comprehensive citywide zoning ordinance. As amended, section 4.1 of that ordinance provides, among other things, that owners located within a residential “R-l” district must obtain a “special exception” from the City of Saraland Board of Adjustment (“the Board”) before operating certain home businesses, including “kindergartens, playschools and day care centers, public or private,” in that district. Section 8.2 of the zoning ordinance defines “day care center” by reference to a definition of “nursery school,” which is in turn defined as “[a] place for the day care and instruction of children not remaining over night; includes day care centers.”

Shirley Squires lives with her husband Ronald Squires in a house located in the City’s Tarver Heights neighborhood. The Squireses’ house lies within an “R-l” district. In February 2000, Shirley Squires, who had worked for a Mobile hospital for the preceding 23 years, decided to change professions and provide day care for children. Ms. Squires telephoned the City and asked with whom she would need to speak in order to be permitted to obtain a license to provide child day care, whereupon she was referred to the City’s building inspector, who also served as the City’s zoning-enforcement officer. The building inspector informed Ms. Squires that before she could begin providing day care in her house, she would need to receive fire-protection clearance from the City’s fire department in order to obtain approval from the State Department of Human Resources (“DHR”) for her day-care operation. Ms. Squires was then referred to City fire-department officials, who informed her that she would not need a sprinkler system because she planned to limit to six the number of children for whom she would be caring daily.

Ms. Squires then filed an application to the City for a business license. The application identified the name of the applicant as a sole proprietorship named “Heaven-Lee’s Home Daycare,” the type of business as “Home (Family) Daycare,” and the principal business activity as “Daycare.” The business-license application form bore no entry in the field provided for identifying the applicant’s “Business Location in Saraland.” The sole address listed on the form was the address of the Squireses’ house. The office of the Saraland city clerk issued Ms. Squires a business license on February 14, 2000.

Under “The Child Care Act of 1971,” which is codified as Ala.Code 1975, § 38-7-1 et seq. (“the Child Care Act”), a person who wishes to operate any “child-care facility” in Alabama must obtain, and maintain in force, a license obtainable from DHR. See §§ 38-7-3 and 38-7-4, Ala.Code 1975. The Child Care Act defines a number of specific classes of childcare facilities by reference to their hours of operation (day or night) and sizes of child populations (e.g., 6 children or less, between 7 and 10 children, more than 10 children, or more than 12 children). A “Day Care Home” is defined in the Child Care Act as “[a] child-care facility which is a family home and which receives not more than six children for care during the day.” Ala.Code 1975, § 38-7-2(5). Based upon the City’s issuance of a business license to Ms. Squires, DHR officials issued a two-year license to Ms. Squires to operate HeavenLee’s Home Day Care at her house as a “Family Day Care Home”; according to the Mobile County DHR child-development-consultant supervisor, DHR was informed by the City’s building inspector that the City would not issue a business license unless a house was in compliance with zoning requirements.

In May 2002, apparently in response to complaints of increased traffic in the area of the Squireses’ house, an attorney for the City, at the City’s request, sent a letter to Ronald Squires informing him that it was necessary to obtain permission from the Board in order to operate a business out of a house in an R-l district and that a review of City records indicated that no application for such permission had been made and that no permission had been given for the operation of a neighborhood business at the Squireses’ house. During the following month, the City’s attorney sent a second letter to Mr. Squires requesting that he go to the office of the City’s building inspector to complete forms to obtain permission to operate a neighborhood business; Mr. Squires was asked to seek that permission immediately because the City would not continue to forbear taking action to correct violations of its zoning ordinance. Ms. Squires then completed and submitted to the Board a form that had been supplied by the building inspector entitled “Appeal to the Board of Adjustment”; in that form, she requested a “use variance” to allow her to operate an in-home day-care business at the address listed on the form, which was her home address.

The Board considered Ms. Squires’s form request at its August 6, 2002, meeting. Ms. Squires and another nearby homeowner spoke in favor of the Board’s granting permission to Ms. Squires to operate the day-care business, while eight other occupants of houses in the neighborhood spoke against the request. Although the Board’s chairman called for a motion to approve Ms. Squires’s request, no motion was made, prompting the chairman to state on the record that the special exception sought by Ms. Squires was “not granted” based upon that lack of a motion. Ms. Squires was informed that she had 15 days to appeal from the Board’s decision. Six days later, Mr. Squires was cited for having violated the City’s zoning ordinance; in addition, on that date, the attorney general issued an opinion indicating that an in-home day-care facility located in the City was required to obtain a special exception under the City’s zoning ordinance.

Proceedings in the Trial Court

On August 19, 2002, the Squireses filed a notice of appeal to the Mobile Circuit Court from the Board’s denial of Ms. Squires’s special-exception request, nam-tag as defendants the City and the Board. Later, in March 2003, they filed a complaint seeking a declaration that the City “ha[d] no lawful authority or power to deny them the right to operate [a] day care home” based upon the lack of a special exception; they also sought injunctive relief. The Squireses alleged that the City’s actions were arbitrary, were capricious, or represented selective enforcement; that the City’s actions were viola-tive of 42 U.S.C. § 1983; that the City waived, or was equitably estopped from enforcing, the provisions of the zoning ordinance requiring a special exception; and that the zoning ordinance did not apply to “day care homes” as defined under state law. The City answered the complaint and denied the Squireses’ allegations in pertinent part. The Squireses filed a motion for a summary judgment in their favor on their claims for declaratory and injunc-tive relief, which was denied.

After an ore tenus proceeding, the trial court entered an order finding in favor of “the defendants” on the allegations of the Squireses’ complaint. The Squireses’ subsequent postjudgment motion as to their complaint was denied. Pursuant to Rule 54(b), Ala. R. Civ. P., the trial court directed the entry of a final judgment as to its order adjudicating the Squireses’ claims for declaratory and injunctive relief. On appeal, the Squireses have asserted three principal issues: (1) whether the City was equitably estopped from enforcing its zoning ordinance; (2) whether the City’s zoning ordinance is unconstitutional as applied to the Squireses; and (3) whether the City’s zoning ordinance may properly be applied to “day care homes” as defined in the Child Care Act.

Standard of Review

The standard of review set forth in Ex parte Board of Zoning Adjustment of Mobile, 636 So.2d 415, 417 (Ala.1994), governs:

“The trial court heard this case without a jury. Where evidence is presented to the trial court ore tenus, the court’s findings of fact are presumed correct; its findings will not be disturbed except for a plain and palpable abuse of discretion. Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); City of Bridgeport v. Citizens Action Committee, 571 So.2d 1089 (Ala.1990). The judgment of the trial court based on ore tenus evidence in a nonjury case is presumed to be correct; however, that presumption has no application when the trial court is shown to have improperly applied the law to the facts. Marvin’s, Inc., supra; Richard Brown Auction & Real Estate, Inc. v. Brown, 583 So.2d 1313 (Ala.1991); Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985).”

Analysis

I. Equitable Estoppel

Although “the doctrine of estop-pel is rarely applied against a municipal corporation,” it “may apply against a municipal corporation when justice and fair play demand it and where there has been a misrepresentation or concealment of material fact.” City of Foley v. McLeod, 709 So.2d 471, 474 (Ala.1998). As our Supreme Court stated in State Highway Dep’t v. Headrick Outdoor Advertising, Inc., 594 So.2d 1202, 1204-05 (Ala.1992):

“Equitable estoppel is to be applied against a governmental entity only with extreme caution or under exceptional circumstances. First Nat’l Bank of Montgomery v. United States, 176 F.Supp. 768 (M.D.Ala.1959), aff'd, 285 F.2d 123 (5th Cir.1961); Ex parte Fields, 432 So.2d 1290 (Ala.1983).
“ ‘Under the settled law, equitable es-toppel ... must be predicated upon the conduct, language, or the silence of the party against whom it is sought to be invoked. Said conduct, language, or silence must amount to the representation or concealment of a material fact or facts. The representation must be as to the facts and not as to the law. ...
“ ‘ “The doctrine of equitable estop-pel is not a bar to the correction ... of a mistake of law.” ’
“(Emphasis added [in Headrick].) 176 F.Supp. at 772, quoting Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 182, 77 S.Ct. 707, 709 1 L.Ed.2d 746 (1957).
“In Ex parte Fields, supra, at 1293, this Court held that neither the state or its political subdivisions can be ‘estopped by doing that which they have no authority to do.’ ”

The essential elements of equitable es-toppel were set forth in Ledlow v. City of Pell City, 497 So.2d 86, 89 (Ala.1986):

“‘The actor, who usually must have knowledge of the true facts, communicates something in a misleading way, either by words, conduct or silence. The other relies upon that communication. And the other would be harmed materially if the actor is later permitted to assert any claim inconsistent with his earlier conduct.’ ”

(Quoting Mazer v. Jackson Ins. Agency, 340 So.2d 770, 773 (Ala.1976).)

The Squireses cite City of Foley, supra, 709 So.2d 471, in support of their position. In City of Foley, the Supreme Court affirmed a partial summary judgment preventing a municipality from enforcing its zoning ordinance so as to require the owner of a mobile-home park to remove six particular mobile-home rental units that had replaced earlier units in that park, which had been operated as a preexisting nonconforming use. The Supreme Court based its affirmance upon evidence indicating that “numerous mobile homes” had been moved into and out of the mobile-home park over the years without objection from the municipality and that even when the municipality had objected, it had done so only after the park owners had already purchased the mobile homes and had prepared them for rental. The Squireses also cite cases from two other jurisdictions: Even v. City of Parker, 597 N.W.2d 670 (1999), a 3-2 decision upholding a trial court’s finding of estoppel where a building inspector issued a building permit for a planned replacement garage after failing to ask whether the planned garage would be of “pole-type” construction (which required a conditional-use permit), and Landing Development Corp. v. City of Myrtle Beach, 285 S.C. 216, 329 S.E.2d 423 (1985), in which a zoning administrator admitted that before a condominium-rental business license had been issued to a landowner, the landowner’s president had specifically asked him if rentals were permitted in the pertinent district and he had replied that such rentals were permitted.

The City distinguishes City of Foley on the basis that “a simple, prudent review of the governing ordinance would have revealed the need to obtain a special exception at the outset.” In doing so, the City effectively invokes a principle of constructive notice of zoning ordinances, one that tends to impugn the reasonableness of the Squireses’ claimed reliance upon the conduct of the City officials in directing them only to seek fire-department clearance and in thereafter issuing a business license. Although the cases applying the doctrine of equitable estoppel in the area of municipal zoning do not expressly espouse a reasonableness standard with respect to reliance upon “words, conduct or silence,” the Alabama Supreme Court has said, in the context of analyzing whether one may be equitably estopped to assert a limitations defense to an action, that “application of the doctrine of equitable estoppel must be tempered by applying ‘a standard of reasonable reliance.’” McCormack v. AmSouth Bank, N.A., 759 So.2d 538, 543 (Ala.1999) (quoting City of Birmingham v. Cochrane Roofing & Metal Co., 547 So.2d 1159, 1167 (Ala.1989)). Indeed, a party asserting estoppel must have “ ‘ “in good faith been ignorant of the true facts.”’” BSI Rentals, Inc. v. Wendt, 893 So.2d 1184, 1188 (Ala.Civ.App. 2004), (quoting Lambert v. Mail Handlers Benefit Plan, 682 So.2d 61, 64 (Ala.1996), quoting in turn Ivey v. Dixon Inv. Co., 283 Ala. 590, 594, 219 So.2d 639, 643 (1969)).

We deem the City’s position persuasive. In this case, the provisions of the zoning ordinance were constructively known to all citizens of the City, including the Squireses. See Turner v. State Employees’ Retirement Sys., 485 So.2d 765, 766 (Ala.Civ.App.1986) (“as a matter of public policy, all men are charged with knowledge of the law pertaining to their transactions”). Moreover, as the principal case relied upon by the City, Cobb v. City of New Hope, 682 So.2d 1375 (Ala.Civ.App.1996), notes, a municipality’s unlawful issuance of a building permit would not authorize the permittee to violate a valid zoning ordinance. See also Security Sav. Life Ins. Co. v. Weaver, 579 So.2d 1359, 1360 (Ala.Civ.App.1991) (government non-enforcement of laws cannot act to estop the government from later enforcing those laws, even when individuals have relied on incorrect advice from a government agency and even when substantial sums of money have been expended in reliance on continued nonenforeement of the law). The pertinent principle that we glean from the foregoing authorities is that reliance upon a particular grant of municipal permission is unreasonable to the extent that such permission is interpreted by the recipient of that permission as carte blanche to ignore other legal requirements that may exist.

Although the City in this case issued Shirley Squires a business license, rather than a building permit such as was issued to the applicant in Cobb, that is a distinction without a difference, especially in view of City of Trussville v. Porter, 279 Ala. 467, 187 So.2d 224 (1966). In Trussville, a corporation was issued a business license by a city to operate a quarry within the police jurisdiction of that city in exchange for a payment of $25.50, and municipal officials purportedly assured the corporation that a necessary permit to allow the corporation to engage in operations at the planned quarry site would later be issued. However, the city then denied the corporation’s permit and attempted to refund the license fee to the corporation. In reversing a judgment enjoining city officials from arresting the corporation’s workers for undertaking work at the quarry site, the Supreme Court rejected the materiality of the city’s issuance of the business license, holding that “the issuance of a business license in no wise implies a consent of the governing body for the operation of such business” and that business licenses may be issued even to unlawful businesses. 279 Ala. at 469, 187 So.2d at 226.

Thus, we are drawn to the conclusion that, in and of itself, the City’s issuance in this case of a business license to Shirley Squires on the basis of the representations in her application would not reasonably constitute a representation that a day-care business could be operated in the Squireses’ house, and thus does not warrant application of the doctrine of equitable estoppel to the City so as to prevent its enforcement of its zoning ordinance. Under the facts of this case, the business license issued to Shirley Squires connoted, at most, mere general permission to operate a business within the geographic boundaries of the City rather than specific permission to operate a business at a particular location. Stated another way, the mere issuance of a day-care business license by the City was an insufficient express or implied “representation” concerning the propriety of operating a business within an R-l district without obtaining a special exception that would warrant the application of the doctrine of equitable es-toppel against the City under Alabama law.

We likewise reject the proposition that the explicit or implicit representations of the City’s zoning-enforcement officer to the effect that Shirley Squires could operate a business on the Squireses’ property after obtaining fire-department clearance may be said to equitably estop the City from insisting that the Squireses obtain a special exception as required by the City’s zoning ordinance. Such representations would, under Alabama law, amount to representations of law and not of fact, and would therefore not equitably estop the City from enforcing its zoning ordinance notwithstanding such representations under City of Orange Beach v. Benjamin, 821 So.2d 193 (Ala.2001). In Orange Beach, evidence was adduced indicating that a municipal building inspector had told an individual who owned land near a navigable body of water that the pertinent municipality lacked jurisdiction as to those waters and that the individual would not need a permit to construct a pier that extended into that body of water; however, in actuality, the municipality held riparian rights as to those waters. The Supreme Court reversed a judgment denying an injunction in favor of the municipality preventing the individual and his wife from using or maintaining a pier constructed on the body of water at issue, holding that the municipality “should not be estopped from correcting [the] mistaken statement of the law” made by the building inspector. 821 So.2d at 197. Orange Beach is fatal to the Squireses’ equitable-estoppel arguments to the extent that they are based upon conduct of the City’s zoning-enforcement officer.

Finally, we note the Squireses’ claim that the doctrine of equitable estop-pel applies because Shirley Squires left her former profession in order to operate a day-care business. That argument is, at bottom, cumulative. To the extent that we have concluded that the City made no representation of fact upon which the Squireses, or either of them, could reasonably have relied as to the necessity of obtaining a special exception before undertaking lawful operation of a day-care business on their property, it does not avail the Squireses to assert the extent of Shirley Squires’s actions in furtherance of her plan to operate that business on that property. While we are not unsympathetic to Shirley Squires’s significant efforts to change careers, this court, like the trial court, lacks the power to negate the clear effect of the City’s zoning ordinance upon her plans. We thus affirm the trial court’s judgment as to the issue of equitable estoppel.

II. Selective Enforcement

The Squireses also contend on appeal that the judgment in favor of the City should be reversed because, they say, the City has not consistently enforced the requirement that a special exception be obtained before a “day care center” or other potentially suitable home business may begin operation in an R-l district. In doing so, the Squireses have explicitly invoked federal and purported state guarantees of equal protection of the laws in support of their claim that the zoning ordinance cannot lawfully be applied to them.

However, as the City has correctly noted, the Squireses’ constitutional attack on the application of the zoning ordinance is not properly presented for review. As the City notes in its brief, § 6-6-227, Ala.Code 1975, a portion of the Declaratory Judgment Act, states that “[i]n any proceeding which involves the validity of a municipal ordinance, or franchise ... if the statute, ordinance, or franchise is alleged to be unconstitutional, the Attorney General of the state shall ... be served with a copy of the proceeding and be entitled to be heard.” That statute has been held to impose a jurisdictional requirement, ie., if a statute or ordinance is alleged to be unconstitutional, a trial court may not enter a valid judgment concerning the constitutionality of the challenged statute or ordinance unless the attorney general is served with notice of the challenge. E.g., Smith v. City of Florence, 288 Ala. 61, 62, 256 So.2d 893, 894 (1971). The Squireses have undisputedly not served a copy of their complaint or other papers in this case upon the Attorney General.

Although the Squireses’ reply brief posits that § 6-6-227 should be limited to facial challenges to a statute’s or an ordinance’s constitutionality, as opposed to constitutional challenges to such laws as applied, there is authority for the proposition that § 6-6-227 does apply to constitutional challenges to particular applications of statutes or ordinances. See Ex parte Northport Health Serv., Inc., 682 So.2d 52, 54 (in which the trial courtj absent notice to the attorney general, declared that “ ‘any application of ” portions of the Alabama Medical Liability Act of 1987 that “ ‘jeopardize^] the protection of the infirm elderly’ ” would be unconstitutional, that court’s order was void to that extent); City of Russellville v. Wilson, 591 So.2d 523 (Ala.Civ.App.1991) (holding that absent compliance with § 6-6-227, the trial court was without jurisdiction to enter a judgment based upon contention that particular local act was unconstitutional as applied to him); Landers v. O’Neal Steel, Inc., 564 So.2d 925, 926 (Ala.1990) (“Landers did not serve the attorney general with notice of his challenge to the constitutionality of the exclusivity provision [of the Workers’ Compensation Act] as applied to his action .... The attorney general has filed a motion to strike the constitutional challenge. That motion is due to be granted.”).

The Squireses’ failure to serve the attorney general with notice of their claim that the City’s application of its zoning ordinance to Shirley Squires’s business operations on the Squireses’ property was unconstitutional barred the trial court from entering a valid judgment as to that issue, and likewise precludes appellate review of that issue. We thus affirm the trial court’s judgment without reaching the issue whether the City is guilty of discriminatory selective enforcement under principles recognized in cases such as Hunt v. State, 642 So.2d 999, 1003-04 (Ala.Crim.App.1993), aff'd, 642 So.2d 1060 (Ala.1994), and S.H. v. State, 868 So.2d 1110, 1118 (Ala.Civ.App.2003) (plurality opinion). See also 4 Edward H. Ziegler, Jr., et al., Rathkopf's Law of Zoning and Planning (discussing selective enforcement in the context of zoning law).

III. Claimed Inconsistency with State Law

The Squireses’ final contention is that the special-exception requirement of the City’s zoning ordinance was unlawfully applied to them because, they argue, Ms. Squires’s business is classified under the Child Care Act as a “day care home” and not a “day care center” because she cares for no more than six children in her house. This contention, to the extent that it has any force at all, derives its force from general principles counseling strict interpretation of land-use restrictions and opinion testimony from the City’s building manager that the zoning ordinance (which, although revised in 1987, has been in force since the late 1950s) contemplated only day-care facilities with more than 12 children.

After a review of the pertinent ordinance, we are constrained to reject the Squireses’ arguments as to this issue. They cite no authority that would require a municipality to adopt zoning ordinances that precisely track the definitions used in general licensing acts, and there is no indication in the zoning ordinance itself that the City intended to differentiate among “day care centers” based solely upon the number of children for whom one intends to care on a daily basis. In contrast, the zoning ordinance does contain a provision (§ 9.2), entitled “Relationship to Other Laws,” that provides that “[w]henever regulations or restrictions imposed by this Ordinance are either more or less restrictive than regulations or restrictions imposed, by any governmental authority ... through legislation ... rule or regulation, the ordinance, regulations, rules or restrictions which are more restrictive or which impose higher standards or requirements shall govern” (emphasis added). Moreover, as previously noted, the attorney general, whose advisory opinion is entitled to great weight (see, e.g., Mobile Constables Ass’n, Inc. v. Alabama Dep’t of Public Safety, 670 So.2d 28, 29 (Ala.1995)), has concluded that the City’s zoning ordinance requires that a special exception must be obtained in order to operate, in the City, a “day care home” as defined in the Child Care Act. We therefore affirm the trial court’s judgment as to this issue.

Conclusion

Based upon the foregoing facts and authorities, the judgment of the Mobile Circuit Court is due to be affirmed.

AFFIRMED.

CRAWLEY, P.J., concurs.

THOMPSON and MURDOCK, JJ., concur in the result, without writing.

BRYAN, J., dissents, with writing.

BRYAN, Judge,

dissenting.

I respectfully dissent. I would hold that the City is estopped from requiring Ms. Squires to obtain a special-use permit to operate her home day care. “[Although the doctrine of estoppel is rarely applied against a municipal corporation, it may be applied in a proper case when justice and fair play demand it and where there has been a misrepresentation or concealment of a material fact.” City of Foley v. McLeod, 709 So.2d 471, 474 (Ala.1998). The City issued Ms. Squires a business license allowing the operation of her home day care, and the City did not object to Ms. Squires’s home day care until more than two years after issuing her a business license. Having obtained a business license from the City, Ms. Squires left her previous job and incurred considerable costs in starting her home day care. The Squireses presented evidence indicating that numerous businesses in the City, including day-care facilities, had been issued business licenses despite having not acquired variances or special-use permits as required by the City’s zoning ordinance. The City’s zoning-enforcement officer testified that Ms. Squires did everything that the City required her to do to obtain a business license.

Given these factors, the City essentially represented to Ms. Squires that it would not require her to obtain a special-use permit. In this sense, the present case is similar to City of Foley in that the City has misrepresented or concealed a material fact. See City of Foley, 709 So.2d at 474 (“[T]he City’s continued acquiescence amounted to a misrepresentation of a material fact, namely that it would not enforce the zoning ordinance .... ”). I believe that the present case is distinguishable from City of Orange Beach v. Benjamin, 821 So.2d 193 (Ala.2001), which, unlike this case, involved a clear mistake of law. Although estoppel is to be rarely applied against a municipality, justice and fair play require it in this instance.

      . In zoning law, a "special exception” "is a conditionally permitted use, that is, it is an enumerated use specified in the zoning ordinances that requires the approval of an administrative board or agency,” i.e., it " 'allows a property owner to put his property to a use which the regulations expressly permit under conditions specified in the zoning regulations themselves.'” Ex parte Fairhope Bd. of Adjustment & Appeals, 567 So.2d 1353, 1355 (Ala.1990) (quoting 101A C.J.S., Zoning & Land Planning § 229 (1979)). In contrast, a "variance” "requires a showing of unnecessary hardship and results From a request that the zoning authorities grant relief from the literal requirements of the zoning ordinances.” 567 So.2d at 1355.

      . Although the Board was listed as an additional defendant in the notice of appeal to the circuit court, and is listed in the notice of appeal to this court as an additional appellee, the pleadings and the case-action summary sheet in this cause include only the City as a defendant; moreover, the complaint seeks only relief as against the City.

      . Although the Squireses have argued that their review of the zoning ordinance would have been "meaningless” because of the City's spotty enforcement history, the record is silent regarding whether the Squireses ever specifically asked the building inspector, or were ever told by him, about the City's zoning-enforcement practices.

      . There is, in actuality, no guarantee of equal protection enumerated in the Alabama Constitution of 1901, a fact that was recognized in Ex parte Melof, 735 So.2d 1172, 1205 (Ala.1999).


source: Caselaw Access Project

author: SEE, Justice.

license: Public Domain

text:
    Ex parte Shirley SQUIRES and Ronald Squires. (In re Shirley Squires and Ronald Squires v. City of Saraland).
    1050900.
    Supreme Court of Alabama.
    Dec. 1, 2006.

      William W. Watts III of Hudson & Watts, L.L.P., Mobile, for petitioners.
    T. Dwight Reid of T. Dwight Reid & Associates, P.C., Mobile, for respondent.
   SEE, Justice.

Shirley Squires and Ronald Squires sued the City of Saraland and the City of Saraland Board of Adjustments, claiming selective enforcement of a zoning ordinance. The trial court entered judgment in favor of the defendants. The Squireses appealed to the Court of Civil Appeals, raising three issues: “(1) whether the City was equitably estopped from enforcing its zoning ordinance; (2) whether the City’s zoning ordinance is unconstitutional as applied to the Squireses; and (3) whether the City’s zoning ordinance may properly be applied to ‘day care homes’ as defined in the Child Care Act.” The Court of Civil Appeals affirmed the trial court’s judgment. Squires v. City of Saraland, 960 So.2d 651 (Ala.Civ.App.2005). This Court granted certiorari review as to the second issue only — whether the City’s zoning ordinance is unconstitutional as applied to the Squireses. We reverse the judgment of the Court of Civil Appeals as to that issue.

I. Facts and Procedural History

Shirley Squires and her husband, Ronald Squires, live in the City of Saraland. Their house is located in a district zoned “R-l,” or residential. A zoning ordinance of the City requires residents of an R-l district to obtain a “special exception” from the City of Saraland Board of Adjustments (“the Board”) before operating certain home businesses, including day-care facilities.

After having worked in a hospital for 23 years, Shirley Squires decided to change careers and operate a day-care facility for children out of her home. She telephoned the City to obtain a business license for a day-care facility. She was referred to Victor Platt, the City’s building inspector and zoning-enforcement officer. Platt referred Shirley to the city clerk to obtain a business license. The Squireses applied for a business license to operate a day-care facility, and the City issued it in February 2000.

The Squireses also obtained a two-year license from the State Department of Human Resources (“DHR”) to operate a daycare facility, pursuant to the Child Care Act of 1971, § 38-7-1 et seq., Ala.Code 1975.

The City began receiving complaints about increased traffic, noise, and trash related to the Squireses day-care facility. The city attorney sent the Squireses a letter stating that they needed to obtain permission from the Board to operate the day-care facility. In response, Shirley Squires submitted an application for a special exception from the zoning ordinance to operate the day-care facility in an R-l district. The Board held a meeting in August 2002 and declined to grant Shirley Squires’s application for a special exception.

Platt testified at trial that since he started working as a zoning-enforcement officer for the City in 1991, the City had never actually enforced the requirement in the ordinance that those seeking to operate a business in an R-l district obtain a special exception from the Board. Platt also identified several similarly situated businesses in several zoning districts that ostensibly should have required special exceptions from the Board to operate that were nonetheless licensed and operating in those zoning districts without a special exception. In the Squireses’ neighborhood, those businesses included other day-care facilities and other businesses.

The Squireses sued the City and the Board seeking injunctive relief. They alleged that the City had unlawfully refused to allow them to operate their day-care facility because the Board had not granted them a special exception. Among other things, the Squireses claimed that the City’s refusal to grant them a special exception under the zoning ordinance was “arbitrary and capricious and amount[ed] to selective enforcement of the ordinance against them.”

The trial court found in favor of the City and the Board. The Squireses appealed; the Court of Civil Appeals affirmed the trial court’s judgment, holding that the trial court was barred from determining the constitutionality of the zoning ordinance as applied to Shirley Squires’s daycare facility because the Squireses had failed to serve the attorney general with a copy of their complaint pursuant to § 6-6-227, Ala.Code 1975. The Squireses now appeal the decision of the Court of Civil Appeals.

II.Issue

The issue in this case is whether § 6-6-227, Ala.Code 1975, which provides that a party challenging the constitutionality of a municipal ordinance must serve the attorney general with a copy of the proceeding, requires the party to serve the attorney general with a copy of the proceeding when the party is challenging the constitutionality of the enforcement of the ordinance.

III.Standard of Review

As the Court of Civil Appeals noted in its opinion in this case:

“The standard of review set forth in Ex parte Board of Zoning Adjustment of Mobile, 636 So.2d 415, 417 (Ala.1994), governs:
‘“The trial court heard this case without a jury. Where evidence is presented to the trial court ore tenus, the court’s findings of fact are presumed correct; its findings will not be disturbed except for a plain and palpable abuse of discretion. Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); City of Bridgeport v. Citizens Action Committee, 571 So.2d 1089 (Ala.1990). The judgment of the trial court based on ore tenus evidence in a nonjury case is presumed to be correct; however, that presumption has no application when the trial court is shown to have improperly applied the law to the facts. Marvin’s, Inc., supra; Richard Brown Auction & Real Estate, Inc. v. Brown, 583 So.2d 1313 (Ala.1991); Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985).’ ”

960 So.2d at 656.

IV.Analysis

Section 6-6-227, Ala.Code 1975, provides:

“In any proceeding which involves the validity of a municipal ordinance, or franchise, such municipality shall be made a party and shall be entitled to be heard; and if the statute, ordinance, or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard.”

The plain language of § 6-6-227 requires that the attorney general be given notice of any proceeding in which a “statute, ordinance, or franchise is alleged to be unconstitutional.” This Court addressed the applicability of § 6-6-227 to actions challenging the constitutionality of the enforcement of actions of government officials in Bratton v. City of Florence, 688 So.2d 233 (Ala.1996). In that case, the Brattons made two claims. First, they challenged the constitutionality of a zoning ordinance that allegedly gave the Planning Commission for the City of Florence “unbridled discretion to approve or disapprove projects.” Bratton, 688 So.2d at 234. Second, they argued that the City of Florence violated their right to equal protection by arbitrarily and capriciously denying them a building permit. Because the attorney general was not served with a copy of the proceeding, this Court held that the Brattons’ first claim was not properly before this Court because the Brat-tons had failed to comply with the service requirement of § 6-6-227. However, this Court held that the Brattons’ second claim, i.e., that the Planning Commission had exercised its discretion in an arbitrary, capricious, or discriminatory manner, was properly before the Court. The difference between the Brattons’ two claims was that the first claim challenged the constitutionality of the zoning ordinance itself, while the second challenged the Planning Commission’s enforcement of the zoning ordinance. Thus, this Court made clear that § 6-6-227 does not apply to an action challenging a government actor’s enforcement of an ordinance.

Similarly, in Mobile County Department of Human Resources v. Mims, 666 So.2d 22 (Ala.Civ.App.1995), the Court of Civil Appeals held that there was “no requirement that the Attorney General’s office be served in order for the trial court to acquire jurisdiction” in a case where “[t]he gravamen of th[e] action concerned the actions of officials in interpreting and enforcing the statute and regulations, not the constitutionality of the statutes or regulations themselves.” 666 So.2d at 26.

Like Bratton and Mobile County Department of Human Resources, the present case challenges the constitutionality of the government officials’ enforcement of the zoning ordinance; it does not challenge the constitutionality of the ordinance itself. Consequently, notice to the attorney general is not a prerequisite to the Squireses’ prosecution of their claim. The Court of Civil Appeals therefore erred in holding that § 6-6-227 precludes the Squireses from proceeding with their action because they failed to serve the attorney general with a copy of the proceeding.

The Court of Civil Appeals cited three cases in support of its assertion that § 6-6-227, Ala.Code 1975, applies to a party challenging the enforcement of a statute or an ordinance. It first cited Ex parte Northport Health Service, Inc., 682 So.2d 52, 54 (Ala.1996), in which this Court declared void the trial court’s order sua sponte determining that § 6-5-551, Ala. Code 1975, a part of the Alabama Medical Liability Act of 1987, was unconstitutional because the attorney general had not been served pursuant to § 6-6-227. The issue in that case was the constitutionality of the statute, not the legality of the enforcement of the statute; thus, § 6-6-227 properly applied.

The Court of Civil Appeals also cited City of Russellville v. Wilson, 591 So.2d 523 (Ala.Civ.App.1991), in which the Court of Civil Appeals noted that “the trial court may have found the section unconstitutional as applied to [the plaintiff].” However, the Court of Civil Appeals dismissed the plaintiffs appeal on the basis that the trial court lacked jurisdiction to enter a judgment because the plaintiff “challenged the constitutionality of a state statute and fail[ed] to serve the attorney general.” 591 So.2d at 524. The present case is distinguishable because the Squireses do not challenge the constitutionality of the ordinance itself, only the enforcement of the ordinance.

Finally, the Court of Civil Appeals cited Landers v. O’Neal Steel, Inc., 564 So.2d 925 (Ala.1990), in which this Court granted the attorney general’s motion to strike a constitutional challenge to a Workers’ Compensation Act provision because the plaintiff failed to serve the attorney general with notice of the complaint. At issue in Landers, however, was the constitutionality of a statute that failed to provide a remedy for the death of an employee with no dependants. Like the other two cases cited by the Court of Civil Appeals, Lan-ders is distinguishable from this case because it challenged the constitutionality of the statute itself, not how the statute was being enforced.

V. Conclusion

The Squireses were not required to serve the attorney general in order to challenge the alleged arbitrary enforcement of the City’s zoning ordinance. Therefore, we reverse the judgment of the Court of Civil Appeals and remand the cause. Because the Court of Civil Appeals “affirm[ed] the trial court’s judgment without reaching the issue whether the City is guilty of discriminatory selective enforcement,” 960 So.2d at 660, we remand this case to the Court of Civil Appeals for further review consistent with this opinion.

REVERSED AND REMANDED.

NABERS, C.J., and LYONS, HARWOOD, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.


author: PITTMAN, Judge.

text:
    Shirley SQUIRES and Ronald Squires v. CITY OF SARALAND.
    2030874.
    Court of Civil Appeals of Alabama.
    Jan. 12, 2007.
    William W. Watts III of Hudson & Watts, LLP, Mobile, for appellants.
    T. Dwight Reid of T. Dwight Reid & Associates, Mobile, for appellee.
   After Remand from the Alabama Supreme Court

PITTMAN, Judge.

In November 2005, this court affirmed a judgment of the Mobile Circuit Court denying the claims that Shirley Squires and Ronald Squires (“the Squireses”) had asserted against the City of Saraland (“the City”). Squires v. City of Saraland, 960 So.2d 651 (Ala.Civ.App.2005) (“Squires I”). Among other things, the main opinion of this court in Squires I stated that one of the issues raised by the Squireses— whether the City’s zoning ordinance was unconstitutionally applied to the Squires-es — was procedurally barred because the Squireses had failed to serve the attorney general with a copy of their complaint pursuant to § 6-6-227, Ala.Code 1975. 960 So.2d at 655. We thus did not reach “the issue whether the City is guilty of discriminatory selective enforcement under principles recognized in cases such as Hunt v. State, 642 So.2d 999, 1003-04 (Ala.Crim.App.1993), aff'd, 642 So.2d 1060 (Ala.1994), and S.H. v. State, 868 So.2d 1110, 1118 (Ala.Civ.App.2003) (plurality opinion).” Squires I, 960 So.2d at 660. The Alabama Supreme Court granted certiora-ri review as to that conclusion only, reversed the judgment of this court, and remanded the cause to this court “for further review consistent with [that court’s] opinion.” Ex parte Squires, 960 So.2d 661, 666 (Ala.2006) (“Squires II”). In compliance with the Supreme Court’s mandate in Squires II, we now consider the merits of the sole issue not addressed in Squires I.

The Squireses contend on appeal that the judgment in favor of the City should be reversed because, they say, the City has not consistently enforced the requirement that a special exception be obtained before a “day care center” or other potentially suitable home business may begin operation in an R-l district. In doing so, the Squireses have explicitly invoked the federal constitutional guarantee of equal protection of the laws as the basis of their claim that the zoning ordinance cannot lawfully be applied to them.

As the citation in the main opinion in Squires I of Hunt v. State would indicate, the Squireses’ argument as to selective enforcement ventures into an area of constitutional law that is more commonly examined in criminal cases. Hunt summarizes the applicable basic legal principles:

“In 1886 the principle that equal protection of the law is denied when a law is arbitrarily enforced was applied in the United States Supreme Court case of Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). This principle was reaffirmed by the United States Supreme Court in Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944) and Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962).
“In the case of Associated Industries of Alabama, Inc. v. State, 55 Ala.App. 277, 314 So.2d 879, cert. denied, 294 Ala. 281, 314 So.2d 901 (1975), the Alabama Court of Criminal Appeals adopted the holding in United States v. Steele, 461 F.2d 1148 (9th Cir.1972), and held that, initially, the party relying on the defense of discriminatory enforcement must first make a showing that a ‘strong inference of discriminatory prosecution exists.’ Once this showing has been made, it is up to the prosecuting agency to show that the ‘selection process actually rested upon some valid ground.’ Associated Industries, [55 Ala.App. at 289,] 314 So.2d at 890, quoting Steele, 461 F.2d at 1152.
“To establish that a ‘strong inference of discriminatory prosecution exists’ the party alleging such discrimination must show (1) selectivity in enforcement, (2) intentional selectivity, and (3) selectivity based on an unjustifiable standard. Elmore v. State, 445 So.2d 943 (Ala.Crim.App.1983); Coble v. City of Birmingham, 389 So.2d 527, 533 (Ala.Crim.App.), cert denied, 389 So.2d 535 (Ala.1980); Starley v. City of Birmingham, 377 So.2d 1131 (Ala.Crim.App.), cert. denied, 377 So.2d 1134 (Ala.1979), cert. denied, 446 U.S. 956, 100 S.Ct. 2929, 64 L.Ed.2d 815 (1980). The party alleging discriminatory prosecution bears the burden of proof in establishing the claim. Robinson v. City of Birmingham, 353 So.2d 528 (Ala.Crim.App.), cert. denied, 353 So.2d 534 (Ala.1977), cert. denied, 436 U.S. 932, 98 S.Ct. 2833, 56 L.Ed.2d 777 (1978). See also Annot., What Constitutes Such Discriminatory Prosecution or Enforcement of Laws as to Provide Valid Defense in State Criminal Proceedings, 95 A.L.R.3d 280 [ (1979) ]; Annot., Preconviction Procedure for Raising Contention that Enforcement of Penal Statute or Law is Unconstitutionally Discriminatory, 4 A.L.R.3d 404 (1965); 21A Am.Jur.2d § 831 and cases cited therein.”

Hunt, 642 So.2d 999, 1003-04. However, a noted treatise in the field of municipal planning, one cited in the main opinion in Squires I, does address the scope of the doctrine of selective enforcement in the specific context of zoning law:

“It is not a defense to a prosecution or a proceeding to enjoin a violation of an ordinance that a municipality has failed to enforce the ordinance against other persons violating it. A conscious exercise of some selectivity in enforcement of a zoning ordinance, based upon a rational exercise of police power or pros-ecutorial discretion, or even arising as a result of a mere laxity in enforcement, has been held not to establish a violation of constitutional rights under the equal protection clause of the U.S. Constitution. There must be a consciously practiced pattern of discrimination. But, an intentional or deliberate decision by public officials acting as agents of a state not to enforce penal regulations against a class of violators expressly included within the terms of those penal regulations does constitute a denial of the constitutional guarantee of equal protection of the laws.”

4 Edward H. Ziegler, Jr., et al., Rathkopfs Law of Zoning and Planning § 65.37 (4th ed.2004).

In this case, although the City’s building inspector testified that, to his knowledge, approximately 160 other business (including two day-care businesses) had operated in locations in the City in which, according to the zoning ordinance, a special exception should have been necessary, the chairman of the City’s Board of Adjustment (“the Board”), who had been a member of the Board for 15 years at the time of trial, testified that the Board had, in fact, considered and acted upon special-exception petitions in the past, including the period before the building inspector was hired. There was also evidence adduced indicating that the City had strictly enforced the special-exception provisions of the ordinance after having become aware that its building inspector, in its view, had not been properly interpreting those provisions. Finally, the building inspector himself conceded that the Squires-es’ situation was the first case in which he had received complaints from members of the public regarding a business as to which a special exception was required under the applicable zoning ordinance.

The main opinion in Squires I noted that a presumption is indulged, in cases in which evidence is presented to the trial court ore terms, that the trial court’s findings of fact and its judgment based upon those findings are correct. On this record, and applying that presumption, we hold that the trial court could properly have concluded that public outcry against the day-care business operated on the Squires-es’ property, not an intentionally practiced pattern of discrimination on the part of the City, was responsible for the City’s decision to strictly enforce its zoning ordinance, both in the Squireses’ case and prospectively. As the United States Court of Appeals for the Fifth Circuit aptly noted in Bryan v. City of Madison, 213 F.3d 267, 277 (5th Cir.2000), “in a democratic republic, responding to the voice of the public is expected and is not, standing alone, a malevolent motive for selective enforcement purposes.”

AFFIRMED.

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

MURDOCK and BRYAN, JJ., concur in the result, without writing.

      . There is, in actuality, no guarantee of equal protection enumerated in the Alabama Constitution of 1901, a fact that was recognized in Ex parte Melof, 735 So.2d 1172, 1205 (Ala.1999).


author: CRAWLEY, Presiding Judge. BRYAN, Judge,

text:
    T.J.H. v. S.N.F.
    2050257.
    Court of Civil Appeals of Alabama.
    Nov. 3, 2006.
    Rehearing Denied Dec. 15, 2006.

      Rod M. Alexander, Moulton, for appellant.
    Submitted on appellant’s brief only.
   CRAWLEY, Presiding Judge.

This is a custody-modification case. T.J.H. (“the father”) and S.N.F. (“the mother”) were married and had a daughter, A.H., together. The father and the mother divorced in September 2002, while the father was on active military duty awaiting deployment with the United States Marine Corps. The final judgment of divorce awarded the father and the mother joint legal custody of A.H. with the mother exercising sole physical custody.

The mother had four children including A.H., and each child had a different father. In April 2004, the Morgan County Department of Human Resources (“DHR”) filed a dependency petition with the juvenile court of Morgan County alleging that A.H. had been neglected or abused, based on a finding by DHR that the mother’s boyfriend had physically abused A.H.’s half sibling; DHR also determined that the mother had a drug-abuse problem. The juvenile court held a 72-hour hearing, and the parties present at the hearing agreed that the children should be in the custody of DHR. The mother testified at the hearing that the father was in Iraq, but she stated that he was not A.H.’s “legal” father. Based on that testimony, the juvenile court issued an order vesting pendente lite custody of A.H. with DHR.

While the father was stationed in Afghanistan, he received notice through the Red Cross in Afghanistan that A.H. was in foster care. The father' contacted DHR via telephone and arranged for DHR to move A.H. to his sister’s home. He attempted to take emergency leave from his military assignment so that he could petition the court for custody of A.H., but his request was denied. After he completed his military assignment, the father was allowed to take leave, and on July 5, 2005, he filed with the circuit court of Morgan County a motion for modification of custody and for emergency relief. The circuit court awarded pendente lite custody of A.H. to the father on July 7, 2005. The juvenile court subsequently dismissed without prejudice DHR’s pending dependency petition relating to A.H. After an ore tenus proceeding on the father’s motion for modification, the circuit court entered an order on September 27, 2005, denying the father’s motion to modify custody and awarding custody to the mother as follows:

“9. It is the Court’s intention that the temporary custody of [A.H.] placed with the [mother] shall create no presumption in her favor in the event of a future motion or petition to modify custody. The standard that shall apply to a future custody change so long as this Order remains in effect is the best interests of the child. The Court will set this ease for a review of custody or custody modification proceedings, without prepayment of a civil docket fee, upon motion of the [father], the [mother], or DHR.”

The father filed postjudgment motions on September 29, 2005, requesting in part that the circuit court issue a final custody order. The circuit court denied the post-judgment motions after conducting a hearing, and the father timely appealed to this court.

The Finality of the September 27, 2005, Order

It is of paramount importance in custody cases for the trial court to determine whether it is conducting an initial custody proceeding or a custody-modification proceeding, and to indicate whether a custody order is a final custody judgment or a pendente lite order. Rich v. Rich, 887 So.2d 289, 299 (Ala.Civ.App.2004). A “temporary order” as to custody or a “temporary custody award” is generally considered a final order, but a pendente lite custody order is not a final order. Ex parte J.P., 641 So.2d 276, 278 (Ala.1994).

A pendente lite custody order is an order that is effective only during the pen-dency of the litigation in an existing case and is usually replaced by the entry of a final judgment. Hodge v. Steinwinder, 919 So.2d 1179, 1182 (Ala.Civ.App.2005). Pendente lite custody orders allow a trial court to take into consideration developments in the lives of the child and the parties that naturally occur during the gap in time between the filing of an action and the final hearing in the matter. Id.

However, a “temporary custody award” or a “temporary order” as to custody is a “final” custody award or judgment. Despite its name, a temporary order as to custody is intended to remain effective until a party seeks to modify it. It may be modified if the trial court reviews the case and determines that changed circumstances that warrant a modification have come into existence since the last custody award. 919 So.2d at 1182-83. Such an award is not a pendente lite award. Id.

The language often used by the trial courts is confusing. Custody, by its very nature, is always temporary and never permanent, and the trial court always retains jurisdiction to modify custody under the appropriate circumstances even though the temporary custody of a child may have been determined. Ex parte J.P., 641 So.2d at 278. “Semantically, this entire matter would be simpler if all courts declined to use the phrase ‘temporary custody’ and simply used ‘pendente lite’ or ‘custody’ as circumstances require.” Id.

“Likewise, the distinction between initial or original custody proceedings and modification proceedings is important because of the different standards of proof required.” Id. The “best interest of the child standard” applies when custody has not previously been determined. “However, if there is a judgment granting custody to one parent, or if one parent has ‘given up’ legal custody, then custody will be changed only if it would ‘materially promote’ the children’s welfare.” Ex parte Couch, 521 So.2d 987, 989 (Ala.1988), citing Ex parte McLendon, 455 So.2d 863 (Ala.1984). The McLendon standard considers whether a change in custody would materially promote the welfare of the child and tries to prevent the uprooting of the child. Ex parte Couch, supra. This standard creates a presumption in favor of the party who has custody of the child at the time of the filing of the modification motion and assumes that uprooting the child would be a traumatic experience. See Ex parte McLendon, supra, and Couch, supra. A pendente lite order awarding custody to a parent does not create a presumption in favor of the party who is awarded penden-te lite custody. Reid v. Reid, 897 So.2d 349, 355 (Ala.Civ.App.2004).

In this case, the court’s September 27, 2005, order denied the father’s motion to modify custody because, the court determined, the father did not meet the McLen-don standard. In the same order that the circuit court purported to apply the McLendon presumption in favor of the mother it stated that the best-interests^of-the-child standard would apply in the event either party filed a motion to modify custody in the future; awarded the mother “temporary” physical custody; and purported to grant DHR, the mother, or the father the right to move for a modification in the future without having to pay a civil docket fee. The custody award at issue was not made by the circuit court pending further litigation of the existing case; it was made with the intent that it remain effective until such time as the father, the mother, or DHR sought a custody modification. Therefore, this custody award was not a pendente lite custody award; rather, it was a “temporary custody” award, i.e., a final judgment from which an appeal will lie.

The record indicates that the judgment of divorce awarded the mother sole physical custody of A.H. Despite the proceedings in this case, the mother never gave up her status as the custodial parent. The only orders relating to custody were pen-dente lite orders; thus, the McLendon presumption continues to inure to the benefit of the mother, and the McLendon standard should be applied if the father moves for modification of custody in the future. The order of September 27, 2005, was a final judgment, and the payment of filing fees would be necessary to institute a new proceeding. See Farmer v. Farmer, 842 So.2d 679, 680 (Ala.Civ.App.2002).

Whether the McLendon Standard or the Best-Interest Standard Applies

On appeal, the father first contends that the circuit court erred in applying the McLendon standard instead of the “best interest” standard to his motion for modification. Specifically, he argues that the mother lost the preferential status given to her by virtue of the McLendon standard when DHR received temporary custody of A.H. As noted above, all prior custody orders were pendente lite orders and did not serve to shift the burden placed on the father by virtue of the mother’s status as the custodial parent.

In addition, the father failed to preserve this issue for appeal. The father did not present this argument to the circuit court. This court may not consider an issue that is raised for the first time on appeal. Burleson v. Burleson, 875 So.2d 316, 322 (Ala.Civ.App.2003), and Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992). Therefore, we will not further address this issue on appeal.

Whether the Evidence Supports the Denial of the Father’s Motion for a Modification of Custody

The father next contends that the circuit court’s judgment denying the father’s motion for a modification of custody was so unsupported by the evidence as to be plainly and palpably wrong. As stated above, after an ore tenus proceeding, the circuit court issued a judgment denying the father’s motion for the modification of custody. Although the circuit court found that the mother had used marijuana after A.H. and two of the mother’s other children were removed from her custody by DHR and that she failed to comply fully with the recommendation of DHR’s staff regarding counseling for her long-term use of narcotics, the circuit court concluded that, despite the mother’s shortcomings, the father had failed to prove that “the material benefits to [A.H.] from changing her physical custody [would] more than outweigh the disruptive effects of uprooting her from the physical presence, association, bond and care of her mother.”

The circuit court specifically found that the father’s time and association with A.H. had been limited for several years before he returned to Alabama in June 2005; that the father’s military service commitment would require him to move A.H. to a military base in Hawaii, away from family, friends, and school; that the father would have to hire a live-in nanny to care for A.H.; that, if the father is required to be away from home, a person who is unknown to the court would be A.H.’s full-time caregiver; that, if the father is redeployed to a foreign country, A.H. would either remain in Hawaii with non-relatives or have to be brought back to Alabama; and that for financial reasons it would almost be impossible for the mother to travel to Hawaii to visit A.H.

The evidence at trial demonstrated the following facts. As noted above, the mother lost custody of all three of her other children as a result of DHR’s dependency petition. The basis for DHR’s intervention was the physical abuse of one of the mother’s children by the mother’s boyfriend. Despite the boyfriend’s conviction for the abuse of the mother’s other child, the mother continued to live with the boyfriend, who, in addition to abusing the mother’s child, engaged in domestic violence against the mother. The mother left the children with the boyfriend while she worked.

The mother also used marijuana and several prescription painkillers. She admitted that she had used the prescription drug Xanax with marijuana; she also admitted that she did not have a prescription for Xanax. The mother would not admit, however, that she had any problems with drug abuse or with being a victim of domestic violence.

“ ‘The judgment of a trial court based on ore tenus evidence is entitled to a presumption of correctness on appeal. Hermsmeier v. McCoy, 591 So.2d 508 (Ala.Civ.App.1991). However, that presumption can be overcome when there is an absence of material evidence to support the trial court’s factual findings. Means v. Means, 512 So.2d 1386 (Ala.Civ.App.1987). Thus, while issues concerning child custody are within the sound discretion of the trial court, that judgment will be reversed if it is so unsupported by the evidence that it is plainly and palpably wrong. Hermsmeier, supra, at 509; Glover v. Singleton, 598 So.2d 995 (Ala.Civ.App.1992).
“ ‘A parent seeking to modify a previous custody order bears a heavy burden of proof. The parent must prove that a material change in circumstances has occurred since the prior judgment, and that a change of custody will materially promote the child’s best interest and that the benefits of the change will more than offset the inherently disruptive effect caused by uprooting the child. Ex parte McLendon, 455 So.2d 863, 866 (Ala.1984).’”

Kelley v. Akers, 793 So.2d 821, 826 (Ala.Civ.App.2001) (quoting Vick v. Vick, 688 So.2d 852, 855 (Ala.Civ.App.1997)).

The circuit court’s conclusion that the father did not meet the burden imposed on him by Ex parte McLendon is simply unsupported by the evidence in this case. The father has chosen a career in the United States military, is a stable parent with no drug-abuse problems, and has made appropriate arrangements for the care of the child if she were to be placed in his custody. The mother is a drug abuser who, despite the fact that her boyfriend was accused of abusing her child, continued to live with that boyfriend until he pleaded guilty and was incarcerated as a result of that abuse; lost custody of her children in part because of that boyfriend; and who refuses to adjust her circumstances by admitting her drug problem and bettering herself through parenting classes. The father has demonstrated that A.H.’s life will be materially promoted — by an increase in stability, safety, and appropriate parenting behavior — by placement in his custody. Accordingly, we reverse the judgment of the trial court and remand the cause for entry of a judgment awarding custody of the child to the father.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON and PITTMAN, JJ., concur.

BRYAN, J., concurs specially, with writing.

MURDOCK, J., concurs in the result, without writing.

BRYAN, Judge,

concurring specially.

I concur with the main opinion to reverse the circuit court’s judgment and to remand the cause.

I agree that the circuit court’s judgment is a final judgment and that the circuit court applied the correct standard announced in Ex parte McLendon, 455 So.2d 863 (Ala.1984), i.e., the McLendon standard. I further agree that, in view of the overwhelming evidence of the mother’s lack of parental skills and good judgment, the circuit court’s judgment determining that the father failed to satisfy his burden under the McLendon standard is plainly and palpably wrong.

The circuit court’s judgment states:

“The Court is satisfied from the evidence that the [mother] since the parties’ divorce has exercised poor judgment in her choice of male companions, at least one of whom has been convicted of causing physical injury to one of her children; in continuing to use marijuana after the physical custody of [A.H.] and two other children were removed from her by DHR; by failing to comply fully with the recommendations of DHR’s staff about her long-term use of narcotic drugs, [A.H.]’s need for counseling and parental supervision issues; and by leaving adult decisions to be made by four or five year old children. Yet, despite the [mother]’s shortcomings, it appears that [A.H.] is closely bonded with her mother.
“While there has been little change in the [fatherj’s circumstances since the divorce, the evidence shows problems with the [mother’s lifestyle, her health and her commitment to the best interests of her children.

(Emphasis added.)

Since the parties’ divorce, the mother exposed A.H. to a dangerous environment by her involvement with an abusive boyfriend, who was convicted of physically abusing one A.H.’s half siblings; continued to use marijuana, as evidenced by three failed drug tests; and failed to fully comply with DHR’s requests to obtain counseling for herself and A.H. Yet, it is quite evident from the judgment that the circuit court placed a greater importance on the evidence of the bond between A.H. and the mother than on the substantially undisputed evidence establishing that the mother had engaged in a lifestyle that was to the detriment of AH.

The circuit court’s judgment further states:

“If the [father] would remain in or near Decatur, then the decision to grant him ... physical custody of [AH.] would be relatively easy. But that is not possible because of his military service commitment. If granted custody, he would take [A.H.] to the Marine Corps base at Kaneohe Bay, Hawaii, where they have no relatives and will live in military housing that consists of two or three rooms. He plans to hire a live-in nanny to care for [A.H.] When his military duties require him to be away from home, a person who is not related and whose background is unknown to the Court will become the child’s full time caregiver. Should his re-deployment to a foreign country become a necessity despite his status as a single parent with custody, [A.H.] either would remain in Hawaii with non-relatives or [would] have to be shipped back to Alabama. For financial reasons, it would be next to impossible for the [mother] to travel to Hawaii to maintain the important bond between a mother and a daughter.”

(Emphasis added.) Furthermore, the circuit court’s amended judgment states:

“The Court remains impressed with the sincere concern about his daughter that [the father] has demonstrated since May, 2005, as well as with his efforts to rekindle a relationship with [AH.] That the Marines have instilled in [the fa- therj a structured and disciplined lifestyle is mthout question. That his character may be superior to that of [the mother] is probably not debatable. But this case is not about whether [the mother] or [the father] is the better person. It is about the material benefits being weighed against the detrimental impact of uprooting a child from all that she has known during her life and relocating her thousands of miles away with a parent who has no proven record under realistic circumstances of taking care of an 8-year-old daughter.”

As the circuit court’s judgment states, the father demonstrated that he has exercised good judgment and that he has made efforts toward promoting A.H.’s welfare. In fact, the father testified that he visits A.H. every time he has an opportunity to do so. The evidence established that the father fully cooperated with DHR regarding its request that A.H. attend counseling. The father has maintained consistent contact with DHR, even during the time when he was overseas. The evidence established that the father has established a bond with A.H. and that A.H. has expressed no apprehension regarding the possible move to Hawaii. Even more, A.H.’s counselor testified that A.H. had progressed since the time A.H. was placed in the father’s care.

Despite the evidence regarding the father’s efforts and good judgment relating to the care of A.H. and the evidence regarding the mother’s lack thereof, the circuit court denied the father’s petition for modification of custody on the basis of his military status and some possible future occurrence, i.e., the father’s possible redeployment. This determination is plainly and palpably wrong. Trial courts must consider evidence relevant only to the period since the most recent custody determination in determining whether to modify custody pursuant to the McLendon standard. C.P. v. W.M., 837 So.2d 860, 863 (Ala.Civ.App.2002). Furthermore, in reversing judgments that provided an automatic change of custody, visitation, or child support upon the occurrence of a future event, we have stated: “[T]here is no evi-dentiary basis for the determination of future events and ... there exists an adequate procedure for modification when changes in circumstances do occur.” Morrison v. Kirkland, 567 So.2d 363, 364 (Ala.Civ.App.1990). See also Webber v. Webber, 854 So.2d 133 (Ala.Civ.App.2003); and Korn v. Korn, 867 So.2d 338 (Ala.Civ.App.2003). In the present case, the circuit court made a determination regarding custody based on the possibility that the father would be redeployed overseas. That determination is erroneously based upon speculation.

Even though the circuit court commends the father for his actions in caring for A.H., the circuit court concludes that it “cannot say with any reasonable degree of certainty that sending [A.H.] to Hawaii ... would be materially more beneficial than keeping her close to family, friends, school and the parent who had been her primary caregiver until about five months ago,” even in view of its finding that the mother has “problems with [her] ... commitment to the best interests of her children.” Undoubtedly, AH.’s best interests would be materially promoted by removing her from the custody of the mother, who has a dependency petition regarding AH.’s half sibling pending against her and who has had two other children removed from her custody by DHR. Furthermore, the benefits of removing A.H. from the custody of a mother who (1) makes poor choices by engaging in relationships with men who have physically abused her children; (2) continues to abuse controlled substances and fails to even acknowledge her problem, let alone obtain treatment for her dependency; and (3) fails to comply with DHR’s requests regarding efforts to rehabilitate herself would certainly more than offset the disruptive effects of moving A.H. to Hawaii with the father, who is able to provide A.H. with a safe and healthy environment.

It is evident that if the father were not enlisted in the military, the circuit court would have awarded him physical custody of A.H. In considering the foregoing and in view of events involving the mother that have taken place since the parties’ divorce, I concur in the majority opinion holding that the circuit court’s judgment denying the father’s petition to modify physical custody is plainly and palpably wrong.

      . As I noted in the dissent in Kent v. Green, 701 So.2d 4 (Ala.Civ.App.1996) (Crawley, J., dissenting):
      " ‘Research ... reveals that more than half of men who batter their female partners also abuse their children.... Child abuse usually begins after a pattern of wife abuse has been firmly established. The abuse inflicted on the child by a battering husband is likely to be serious. Seventy percent of injuries inflicted on children by male perpetrators are severe and eighty percent of child fatalities within the family are attributable to fathers or father surrogates. The more severe the abuse of the mother, the worse the child abuse.

        " 'A lack of information about family violence and the danger it poses to adult and child victims has led the courts to consider the abuse of wives or mothers by male partners as largely irrelevant to custody deliberations and awards, concluding either that men who are violent toward their partners may, nonetheless, be very good fathers or that domestic violence has little effect on the children or that even if the father was violent during cohabitation, he will cease beating and terrorizing the mother upon separation. All of these conclusions are erroneous. Custody cases occur at a time when battered women and children may be most acutely vulnerable to the coercive controls and violent manipulations of battering men. Unless the judiciary is carefully informed about the impact of domestic violence on children and the abused parent, it will inadvertently issue custody and visitation awards that further endanger the abused parent and the children, themselves, who are at risk of both abuse and severe emotional repercussions.' ”
      701 So.2d at 7 (quoting Barbara J. Hart, Family Violence and Custody Codes, Juvenile & Family Court Journal, 1992, vol. 43, no. 4, at 29).
      The mother’s boyfriend in the present case abused both the mother and one of her children. The mother continued to live with the boyfriend even after he was charged with child abuse, indicating that the mother failed to appreciate the seriousness of the situation and that the mother elevated her desires above the safety of her children.


author: CRAWLEY, Presiding Judge.

text:
    Jerry N. QUICK v. Paula BURTON.
    2050408.
    Court of Civil Appeals of Alabama.
    Nov. 22, 2006.
    Certiorari Denied Jan. 5, 2007 Alabama Supreme Court 1060398.

      Jerry N. Quick, Birmingham, for appellant.
    Paula Burton, pro se.
   On Application for Rehearing

CRAWLEY, Presiding Judge.

This court’s no-opinion affirmance issued on August 25, 2006, is withdrawn, and the following is substituted therefor.

This is an appeal from a judgment in breach-of-contract action; we must affirm the trial court’s judgment because of a lack of either a transcript or a statement of facts in compliance with the Rules of Appellate Procedure.

Jerry N. Quick sued Paula Burton in 2003, alleging that Burton was in breach of her contract with him to purchase his vehicle and that Burton owed him approximately $19,000, plus accrued interest. Burton answered, denying Quick’s claims. Eventually a trial was held, at which oral testimony was received by the trial court. The trial court then entered a judgment, which provided:

“This matter came on for trial non jury this date. Having considered the oral testimony of the parties and considering Alabama Statutory Law regarding the issues raised in this case, Judgment is hereby rendered in favor of Defendant Paula Burton and against Plaintiff Jerry N. Quick. Costs are taxed as paid.”

(Emphasis added.)

Quick did not request a transcript of the trial. Instead, pursuant to Rule 10(d), Ala. R.App. P., Quick allegedly sent a proposed statement of facts to Burton, who did not respond. Then, on March 28, 2006, Quick moved the trial court to adopt a proposed statement of facts and to supplement the record with that proposed statement of facts.

On March 30, 2006, the trial court denied Quick’s motion to supplement the record with a Rule 10(d), Ala. R.App. P., statement of facts. In fact, in regard to Quick’s proposed statement of facts, the trial court wrote on the motion Quick submitted: “Denied, does not accurately state facts and testimony established at trial.” Rule 10(d), Ala. R.App. P., provides, in part:

“(d) Statement of the Evidence or Proceedings When No Report Was Made or When a Transcript Is Unavailable. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection.... Within 21 days (3 weeks) after the filing, the trial court shall rule, settling any questions regarding the objections and proposed amendments, and issuing an approved statement of the evidence or proceedings.”

(Emphasis added.)

Circuit courts in our state have long been viewed as courts of record. E.g., Berry v. State, 65 Ala. 117, 121 (1880) (observing that the “Circuit Court is a court of record, of general jurisdiction, civil and criminal”), and Ex parte Burnsed, 844 So.2d 526, 528 (Ala.2001)(noting that, unlike circuit courts and district courts, municipal courts are not courts of record).

The designation of circuit courts as “courts of record” has a basis not only in our state’s common law but in the acts of our state’s legislature. As stated in Denson v. Stanley, 17 Ala.App. 198, 200-01, 84 So. 770, 772 (1918):

“By act of the Legislature approved August 16, 1915, (Acts 1915, [Act No. 217] p. 279), it is provided that—
“ ‘With the exception of the probate court, every court of record having the jurisdiction of the circuit court and chancery court, or of either, and every court of record by whatever name called, having the jurisdiction to try civil and criminal cases, or either with juries is hereby consolidated into the circuit court.’
“And further that—
“‘All the papers, books, files and records of every kind belonging to, or on file in any court hereby consolidated into the circuit court shall be transferred to and become a part of the papers, files, books and records of the circuit court, and all causes, or proceedings of every kind pending in any court hereby consolidated into the circuit court, shall proceed to final judgment therein as though they had been begun in the circuit court in the first instance.’ Section 3.”

(Emphasis added.) The act of our legislature referenced in Denson was succeeded by what is now codified as § 12-11-1, Ala. Code 1975. That section states that “[t]here is provided in every county in the state a circuit court with all the jurisdiction and powers that are conferred on the circuit court by the Constitution and laws of this state.”

Critically, a “court of record” is a “court that is required to keep a record of its proceedings.” Black’s Law Dictionary 380 (8th ed.2004). Therefore, it is generally safe to presume that a transcript of the oral testimony given in a circuit court is available.

Furthermore, in Hill v. Hill, 607 So.2d 278 (Ala.Civ.App.1992), this court addressed Rule 10(d), Ala. R.App. P., and indicated that the term “unavailable” in that rule pertains to situations in which the court reporter is “unable to transcribe the evidence,” as in cases when, for example, the court reporter may be deceased. Hill, 607 So.2d at 279 (citing Wheeler v. Alabama Nat’l Bank of Montgomery, 262 Ala. 36, 76 So.2d 679 (1954)). However, “unavailable” does not include situations when the appellant simply decides to not pay for a transcript — even if the reason is that he or she cannot afford to pay. Hill, 607 So.2d at 279.

In this case, the trial court denied the Rule 10(d), Ala. R.App. P., motion by Quick. Therefore, absent any evidence indicating otherwise, we must necessarily infer that the trial court concluded as a matter of fact that the court reporter was able to transcribe the record but did not do so either because the court reporter’s presence at trial was waived by Quick or because Quick did not pay the court reporter for a transcript. Importantly, Quick does not argue to this court that a transcript of the testimony is unavailable. A trial court need not enter a statement of the facts under Rule 10(d), Ala. R.App. P., unless that is the case.

“When oral testimony is considered by the trial court in reaching its judgment and that testimony is not present in the record as either a transcript or Rule 10(d), [Ala.] R. [App.] P., statement, it must be conclusively presumed that the testimony is sufficient to support the judgment.” Rudolph v. Rudolph, 586 So.2d 929, 930 (Ala.Civ.App.1991). Furthermore, our supreme court has stated that an appellate court is limited to a review of the record, and the record cannot be changed, altered, or varied on appeal by statements in briefs of counsel. Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166, 176 (Ala.2000), and Gotlieb v. Collat, 567 So.2d 1302, 1304 (Ala.1990)(the appellant bears the burden of ensuring that the record on appeal contains sufficient evidence to warrant reversal). Additionally, this court cannot assume error or presume the existence of facts as to which the record is silent. Goodman, 789 So.2d at 176.

As in Rudolph, supra, the record before this court contains neither a transcript nor a statement of facts made pursuant to Rule 10(d), Ala. R.App. P., and thus we must affirm the judgment of the trial court without addressing the merits of Quick’s appeal.

APPLICATION FOR REHEARING OVERRULED; NO-OPINION AFFIR-MANCE OF AUGUST 25, 2006, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

THOMPSON, PITTMAN, and BRYAN, JJ., concur.

MURDOCK, J., concurs in the result, without writing.

      . It appears from our own court’s docket sheet that on April 10, 2006, Burton filed with this court several documents she purportedly filed in the trial court. Those documents, in essence, object to several of the "facts” in Quick's proposed statement of facts, but those documents are not stamped with a filing date from the trial court. Their absence from the official record on appeal, however, is not a relevant factor in this court’s decision.


author: THOMPSON, Judge.

text:
    Gary BELL v. Nathaniel OWENS.
    2050725.
    Court of Civil Appeals of Alabama.
    Dec. 15, 2006.
    Gary Bell, pro se.

      Clarence Dortch III, Talladega; and W.L. Williams, Jr., Birmingham, for appel-lee.
   THOMPSON, Judge.

On February 24, 2005, Gary Bell d/b/a Duane Corporation (hereinafter “Bell”) sued Nathaniel Owens asserting claims alleging legal malpractice. Bell has proceeded pro se throughout this litigation. In his complaint, Bell alleged that he had hired Owens to sue Davis Atlantic Truck Sales (“DATS”). Owens filed a complaint in the Calhoun Circuit Court against DATS alleging claims of fraud pertaining to Bell’s purchase of a used motor vehicle from DATS on May 29, 1999. The Calhoun Circuit Court dismissed the action. The case was refiled in Baldwin County, Georgia, which appears to be the jurisdiction in which Bell purchased the used motor vehicle from DATS. Because Owens is not licensed to practice law in Georgia, Kenneth Israel, an attorney licensed to practice in that state, filed the Georgia complaint against DATS on behalf of Bell. According to the allegations in Bell’s complaint in this action, Owens had entered into an agreement with Israel regarding handling the Georgia action.

Bell alleged in his complaint in this action that he had regularly asked Owens about the status of the Georgia action but that he had received no information from Owens. Bell claims he learned of a February 25, 2003, hearing to be conducted in the Georgia action and that he informed Owens of that hearing. According to Bell, neither Owens nor Israel appeared on Bell’s behalf at the hearing. Bell alleged that on February 25, 2003, the court in which the Georgia action was pending entered a monetary judgment against Bell on a counterclaim asserted in that court by DATS. In his complaint in this action, Bell also asserted claims related to later court proceedings in the Georgia action and claims related to his efforts to file documents on behalf of Owens so that Owens could proceed pro hac vice in the Georgia court. In support of his complaint in this action, Bell submitted an affidavit of an attorney who is licensed to practice in Georgia. That attorney testified that Owens and Israel had breached the applicable standard of care.

Bell’s complaint in this action asserted claims against a practicing attorney in Calhoun County, and, therefore, the trial judges in that circuit all recused themselves from the action. By an order dated May 2, 2005, Drayton Nabers, Jr., the Chief Justice of the Supreme Court of Alabama, appointed Circuit Judge John H. Bentley to hear the matter.

On June 7, 2005, Owens filed a motion pursuant to Rule 12(b)(6), Ala. R. Civ. P., seeking to dismiss Bell’s claims against him. On June 16, 2005, Bell moved the trial court for a default judgment, arguing that Owens had failed to timely answer the February 24, 2005, complaint. The trial court entered a ruling denying Owens’s motion to dismiss and ordering Owens to answer Bell’s complaint within 30 days; it is not clear from the record the date on which the trial court entered that order. The trial court also denied Bell’s motion for a default judgment. However, on September 23, 2005, the trial court granted a motion for sanctions filed by Bell for Owens’s continued failure to answer the complaint and ordered that Bell would be granted leave to prove damages.

On October 13, 2005, Owens filed an answer to Bell’s complaint and also asserted a counterclaim for the value of legal services he had performed on Bell’s behalf. The answer and counterclaim do not contain a certificate of service indicating that Owens served Bell with that pleading. Also, on October 13, 2005, Owens filed a motion seeking relief from the “default judgment.” We assume that in that motion Owens was actually seeking relief from the trial court’s September 23, 2005, sanctions order. The motion for relief from the September 23, 2005, order contained a certificate of service indicating an incorrect postal or ZIP code for Bell’s address. Bell moved the trial court to set a hearing on the issue of damages as provided for by the September 23, 2005, order.

The trial court conducted a hearing on December 1, 2005, on “all pending motions.” On that same date, the trial court granted Owens’s motion for relief from the September 23, 2005, sanctions order.

On March 3, 2006, Owens filed a motion for a summary judgment; the certificate of service indicates that that motion was served on Bell. In support of his summary-judgment motion, Owens filed an unsigned, unsworn affidavit purporting to set forth certain statements by Danny Morris, an attorney licensed to practice in Alabama. The trial court scheduled an April 20, 2006, hearing on Owens’s summary-judgment motion. On April 7, 2006, Bell filed an “objection” in opposition to Owens’s summary-judgment motion; Bell submitted his own affidavit in support of his “objection” on April 17, 2006.

The record contains a signed, sworn affidavit by Alabama attorney Danny Morris that is dated April 18, 2006, and which was filed in the court on that same date. That affidavit is similar in some respects to the draft of Danny Morris’s unsigned affidavit that Owens had submitted with his March 3, 2006, summary-judgment motion. The record contains no certificate of service or other indication that the April 18, 2006, affidavit was served on Bell.

The April 20, 2006, summary-judgment hearing is not transcribed in the record on appeal. On the date of that hearing, Owens filed in the trial court a motion seeking to “strike” Bell’s opposition to his summary-judgment motion, asserting that the motion was insufficient to create a valid opposition to a summary-judgment motion. On April 25, 2006, Bell moved the trial court to dismiss Owens’s counterclaim against him.

On April 27, 2006, the trial court entered a judgment granting Owens’s motion for a summary judgment. Also on that date, the trial court entered an order granting Bell’s motion to dismiss Owens’s counterclaim against him. Bell timely appealed to our supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

This court reviews a summary judgment de novo. Ex parte Ballew, 771 So.2d 1040 (Ala.2000). A summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; Bussey v. John Deere Co., 531 So.2d 860 (Ala.1988). “When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present ‘substantial evidence’ creating a genuine issue of material fact.” Ex parte Alfa Mut Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999). “[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a summary judgment, this court must review the record in a light most favorable to the non-moving party and must resolve all reasonable doubts concerning the existence of a genuine issue of material fact against the moving party. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

On appeal, Bell challenges whether Owens timely filed the Danny Morris affidavit in support of Owens’s motion for a summary judgment. Rule 56(c)(1), Ala. R. Civ. P., which governs summary judgments, requires that affidavits or other documents not on file in the trial court “shall be attached as exhibits” to the motion. (Emphasis added.) The provisions of the rule governing the timing of the motion state that “[t]he motion for [a] summary judgment, with all supporting materials, including any briefs, shall be served at least ten (10) days before the time fixed for the hearing.... Subject to subparagraph (f) of this rule, any statement or affidavit in opposition shall be served at least two (2) days prior to the hearing.” Rule 56(c)(2) (emphasis added).

Bell cites Cabaniss v. Wilson, 501 So.2d 1177 (Ala.1986), in support of his argument that the affidavit Owens submitted in support of his motion for a summary judgment was inadmissible because it was untimely filed. In Cabaniss v. Wilson, supra, the affidavits submitted by the mov-ant in support of his motion for a summary judgment six weeks after the filing of the motion and only five days before the hearing scheduled on that motion were untimely and inadmissible. The trial court granted the summary-judgment motion, and our supreme court reversed. In analyzing the appeal, our supreme court acknowledged that Rule 6(b), Ala. R. Civ. P., gives the trial court discretion to accept a late affidavit, but it pointed out that the movant in that case had failed to file any motion pursuant to Rule 6. The court stated that “[tjardy affidavits are permissible under Rule 6(b)(2), but only when that rule is complied with.” Cabaniss v. Wilson, 501 So.2d at 1182. The court also noted that the affidavits at issue in that case did not contain a certificate of service indicating that they had been served on the opposing party. Therefore, the court concluded that the affidavits were not properly filed in support of the summary-judgment motion, and it refused to consider those affidavits. Cabaniss v. Wilson, 501 So.2d at 1182. See also Stonewall Ins. Co. v. Boykin, 562 So.2d 1310 (Ala.Civ.App.1989) (holding that the trial court improperly considered an affidavit in opposition to a motion for a summary judgment that was submitted only four days before the trial on the merits and in the absence of a Rule 6(b) motion).

In this case, Owens filed a summary-judgment motion on March 3, 2006. The only document attached as an eviden-tiary exhibit to that motion was an unsigned “affidavit” by an Alabama attorney that stated that Owens had not breached the applicable standard of care. See Valentine v. Watters, 896 So.2d 385, 390 (Ala.2004) (“Expert testimony is required to establish that the legal-service provider deviated from the applicable standard of care. Tonsmeire v. AmSouth Bank, 659 So.2d 601, 605 (Ala.1995).”). Thus, Owens submitted no admissible evidence in support of his summary-judgment motion at the time of the original filing. On April 18, 2006, two days before the scheduled summary-judgment hearing, the signed affidavit of Danny Morris was submitted to the trial court. That affidavit was unaccompanied by any motion and does not indicate that it was served on Bell. Therefore, we must conclude that the trial court erred in considering the April 18, 2006, affidavit. Cabaniss v. Wilson, supra.

In order to be entitled to a summary judgment, the defendant in a legal-malpractice action must make a prima fa-cie showing that he did not act negligently; the burden of the plaintiff to prove otherwise does not shift until the defendant makes that prima facie showing. McDowell v. Burford, 646 So.2d 1327, 1328 (Ala.1994). Because this court has determined that the April 18, 2006, affidavit must be disregarded under the precedent of Ca-baniss v. Wilson, supra, and because Owens submitted no other admissible evidence in support of his summary-judgment motion, we conclude that Owens failed to present a prima facie case that he was entitled to a summary judgment. Accordingly, we must hold that the trial court erred in entering a summary judgment in favor of Owens. See Watts v. Watts, 943 So.2d 115 (Ala.2006) (reversing a summary judgment when the movant did not make a prima facie case in support of her motion for a summary judgment by referring merely to certain language in a divorce judgment pertaining to a division of marital debts and assets).

We note that, given the nature of the allegations contained in Bell’s complaint, we are unable at this time to agree with Owens’s argument that the Alabama court lacks subject-matter jurisdiction over this action. We also reject, at least for the present, Owens’s argument that the action was filed outside the two-year statute of limitations applicable to legal-malpractice actions pursuant to § 6-5-574, Ala.Code 1975. Contrary to Owens’s assertions, Bell does not base his claims on the November 1999 dismissal of his action in Alabama; rather, his claims are based on actions taken or not taken with regard to the later litigation in the Georgia action.

REVERSED AND REMANDED.

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

PITTMAN, J., concurs in the result, without writing.

      . In his appellate brief, Owen cites the “mailbox rule,” or the presumption that " ‘[a] letter properly, addressed, stamped, and mailed is presumed to have been received in due course.’” Sullivan v. Eastern Health Sys., Inc., 953 So.2d 355, 360 (Ala.2006) (quoting Corinth Bank & Trust Co. v. Cochran, 219 Ala. 81, 83, 121 So. 66, 67 (1929)). However, the mailbox rule has no application when there is no indication that the document was actually mailed or served on the opposing party.