author:
PER CURIAM.
      CRAWLEY, Presiding Judge, MURDOCK, Judge,

text:
    Randolph G. WILSON III v. Teresa L. WILSON.
    2030896.
    Court of Civil Appeals of Alabama.
    March 18, 2005.
    Certiorari Denied May 12, 2006
    Alabama Supreme Court 1040960.
    David B. Byrne, Jr., of Capell & Howard, P.C., Montgomery, for appellant.

      Floyd Minor and John Olszewski of Minor & Olszewski, L.L.C., Montgomery, for appellee.
   PER CURIAM.

Randolph G. Wilson III (“the husband”) and Teresa L. Wilson (“the wife”) were married in December 1979. Two children were born of the parties’ marriage; at the time of the hearing in this matter, one child, born December 9, 1985, had not reached the age of majority. In September 2003 the parties separated, and on October 1, 2003, the husband filed a complaint seeking a divorce. Shortly thereafter, the wife answered and counterclaimed for a divorce. After a trial, the court, on April 1, 2004, entered a judgment in which it awarded the wife primary physical custody of the parties’ minor child and ordered the husband to pay monthly child support in the amount of $892 until the child reached the age of majority (approximately 8 months after the date of the divorce judgment). The trial court also ordered the husband to pay the remaining balance of the minor child’s tuition at Macon East Academy. The trial court awarded the husband the marital home, a Ford pickup truck, a Dodge Ram pickup truck, and the Nissan Maxima automobile; the wife was awarded a Mazda automobile. The trial court held each party responsible for the debt held in their individual name and ordered the husband to pay the debt incurred by the parties on a joint credit-card account. The husband was also ordered to pay $5,000 towards the wife’s attorney’s fees.

The trial court awarded the wife all financial accounts in her name, including her 401(k) account, and one-half of the funds in the husband’s Thrift Savings Plan. The wife was awarded $1,250 per month in periodic alimony. In addition to the periodic alimony, the trial court awarded the wife a portion of the husband’s military retirement benefits as follows:

“[T]hat the parties having been married for more than twenty years of [the husband’s] military service, [the wife] is awarded one-half of the gross amount to which [the husband] will be entitled when he reaches age 60 or otherwise becomes entitled to draw military retirement. Although this is an award of alimony in gross, if [the wife] still is entitled to receive periodic alimony from [the husband] at the time such retirement payments begin, her periodic alimony shall be reduced by the amount that she receives from his military retirement.”

The husband filed a postjudgment motion. In his postjudgment motion, the husband asked the trial court to reconsider the amount of his child-support obligation, the division of the marital property, and the award of alimony. The husband specifically argued in his postjudgment motion that the trial court’s judgment awarding the wife periodic alimony and one-half of his retirement benefits would financially “cripple” him. With regard to the trial court’s award of periodic alimony and retirement benefits, the husband specifically stated that the judgment of the trial court “awards $1,250.00 to [the wife] in alimony which is to be reduced by the amount that [the husband] pays from his retirement of fifty percent, which would be greater than fifty percent of retirement income, and ... would violate § 30-2-51(b)(3), Ala.Code 1975.”

Following a hearing on the post-judgment motion, the trial court entered an order reducing the husband’s monthly child-support obligation and denying any further relief requested by the husband. In its postjudgment order, the trial court attempted to clarify its April 1, 2004, judgment by stating:

“[The husband] is unhappy that [the wife] was awarded permanent periodic alimony. He is upset that since his current Army retirement benefit is only about $1,300, and that since [the wife] is awarded half of that, he would have no means of support after Army retirement even with a dollar for dollar offset against alimony for what she would receive from his retirement.
“That might be true if he were to retire today. But he has another sixteen years within which to add on to his retirement benefit, plus the normal cost of living adjustments that traditionally have been made annually. His argument also assumes that [the wife] will be entitled to [periodic] alimony in 2020. She may remarry or there may be an adjustment for some other changed circumstance.”

On appeal, the husband contends that the trial court’s award of retirement benefits to the wife violates § 30-2-51 (b), Ala. Code 1975, and that the trial court’s division of property and award of alimony were inequitable. We first address the husband’s contention on appeal that the trial court’s award of retirement benefits to the wife is impermissible under § 30-2-51(b), Ala.Code 1975. That Code section provides:

“(b) The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:
“(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.
“(2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.
“(3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court.”

In his brief on appeal, the husband argues, among other things, that the trial court’s award of 50% of his retirement benefits to the wife violates subsections (2) and (3) of § 30-2-51(b). Initially, we note that the husband made no argument at trial or in his postjudgment motion that the trial court’s award of retirement benefits violated § 30 — 2—51(b)(2). It is well settled that this court may not consider an issue raised for the first time on appeal. Somers v. McCoy, 777 So.2d 141, 143 (Ala.Civ.App.2000) (citing Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992)). “ ‘This court will not hold a trial court to be in error unless that court has been apprised of its alleged error and has been given the opportunity to act thereon.’ ” Tillis Trucking Co. v. Moses, 748 So.2d 874, 882 (Ala.1999)(quoting Sea Calm Shipping Co., S.A. v. Cooks, 565 So.2d 212, 216 (Ala.1990)). Because the husband did not object at trial or in his postjudgment motion on the basis of a violation of § 30-2-51(b)(2), the trial court was never given an opportunity to rule on this issue and we cannot now hold the trial court in error on those grounds. See Tillis Trucking Co., supra.

However, in his postjudgment motion the husband specifically cited § 30-2-51(b)(3) as grounds for the trial court to reconsider its judgment awarding the wife 50% of the husband’s retirement benefits. The husband argues on appeal that the wife failed to present evidence of the present value of his retirement benefits and that the trial court’s judgment awards the wife an amount in excess of 50% of his present retirement benefits as provided for in § 30-2-51(b)(3). As noted earlier, § 30 — 2—51(b)(3) provides that a trial court may award the present value of any future or current retirement benefits as long as the trial court’s award of retirement benefits shall not exceed 50% of the retirement benefits that are considered a part of the marital estate.

The evidence presented at trial indicates that the husband joined the Army National Guard after the parties married. The husband remained employed with the National Guard during the course of the parties’ marriage. According to the husband, he had accumulated “20 good years” towards retirement. The husband, who was 43 years of age at the filing of the complaint, is eligible to receive retirement benefits when he reaches 60 years of age. The husband testified that he had received a statement before trial that listed the value of his monthly retirement benefit at approximately $1,250 at the age of retirement; a copy of the statement was not submitted as am exhibit at trial.

In Applegate v. Applegate, 863 So.2d 1123 (Ala.Civ.App.2003), we reversed the judgment of the trial court awarding the wife a portion of the husband’s retirement benefits. In so holding, this court stated:

“The wife failed to prove the amount of and the present value of the benefits she was entitled to under the statute. The only evidence of record as to the amount of the husband’s retirement was a document indicating his estimated monthly annuity if he retired on December 31, 2002. As we have recently held, the failure to present the necessary evidence of the present valuation of retirement benefits ... prevents the trial court from exercising its ... discretion to award one spouse any portion of the retirement benefits of the other spouse. McAlpine v. McAlpine, 865 So.2d 438 (Ala.Civ.App.2002).”

863 So.2d at 1124. Relying on our decision in McAlpine v. McAlpine, 865 So.2d 438 (Ala.Civ.App.2002), we remanded the case to the trial court for it to amend its judgment so as not to award the wife any portion of the husband’s retirement benefits. Applegate, 863 So.2d at 1125.

Like the wife in Applegate, the wife in this case failed to produce sufficient evidence of the present value of the husband’s retirement benefits. The only .evidence adduced at trial regarding the value of the husband’s retirement benefits was the husband’s own testimony that, at some point before trial, he had received a statement estimating his monthly retirement benefit as $1,250 at age 60. Given the wife’s failure to present sufficient evidence of the present value of the husband’s retirement benefits, we must reverse the trial court’s award of retirement benefits. Applegate, supra; see also McAlpine, supra.

Because we must reverse the award of retirement benefits, we pretermit discussion of whether the trial court’s division of property and award of alimony were inequitable. On remand, the trial court may, on the basis of the reversal of its award of retirement benefits, reconsider its property division and alimony award.

The wife’s motion for an attorney fee on appeal is denied.

REVERSED AND REMANDED.

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

CRAWLEY, P.J., concurs in the result, with writing.

MURDOCK, J., concurs in the judgment of reversal only, with writing.

CRAWLEY, Presiding Judge,

concurring in the result.

Although I concur in the result of this opinion because I do not believe that the husband’s failure to cite a specific subsection of the retirement-benefit statute in his arguments to the trial court to be fatal to his argument on appeal that the trial court’s award of benefits to the wife violates the statute in several respects, I must respond to certain comments contained in Judge Murdock’s special writing. That writing states that requiring evidence of the present value of retirement benefits places an additional burden, in both time and expense, on the trial courts and the parties seeking a divorce in which the division of retirement benefits is at issue. It is not within our purview to speculate about the burden of implementing the unambiguous language of an act passed by our legislature. In my opinion, the language of the statute requires that the present value of the retirement benefits at issue be proven; therefore, regardless of the expense or time involved, a party seeking an award of retirement benefits must establish the present value of those benefits. Accordingly, I agree that the trial court’s award of benefits in the present case must be reversed.

MURDOCK, Judge,

concurring in the judgment of reversal only.

The practical problem with this court’s holdings in Applegate v. Applegate, 863 So.2d 1123 (Ala.Civ.App.2003), and McAlpine v. McAlpine, 865 So.2d 438 (Ala.Civ.App.2002), particularly with respect to cases involving what are known as “defined benefit plans,” see Wilkinson v. Wilkinson, 905 So.2d 1, 13 (Ala.Civ.App.2004) (Yates, P.J., concurring in the result), is that they put the trial court and/or the parties to the time, the effort, and the expense of retaining accounting or actuarial experts and preparing, presenting, and evaluating technical and complex evidence as to the present value of retirement benefits in every case. See id. Obviously, the lower the value of the benefits and other marital property that make up the marital res, the greater will be the relative burden imposed by this requirement.

In Wilkinson, 905 So.2d at 3 (Murdock, J., concurring specially), I offered a detailed exposition of the statutory language of § 30—2—51(b), Ala.Code 1975, that led me to conclude that that statute did not require the presentation of evidence of the present value of retirement benefits in every case. See also Dunn v. Dunn, 891 So.2d 891 (Ala.Civ.App.2004). However, I also explained my view that, laying the statute to one side, the expenditure of time, effort, and money to adduce present-value evidence may in some cases be necessary to enable the trial court to fairly compare the value of all of the assets before it and fulfill its basic duty of making an equitable division of the marital property. See Wilkinson, 905 So.2d at 4-5 (Murdock, J., concurring specially). In my opinion, this is a case in which it was not necessary to expend such time, effort, and money in order to equip the court with the information it needed in order to make an equitable division of the marital property.

In his separate writing, Presiding Judge Crawley criticizes my comments above regarding the practical consequences of the interpretation given to § 30-2-51 (b) in Applegate and McAlpine and states that “[i]t is not within our purview to speculate” about such matters. 941 So.2d at 971 (Crawley, P.J., concurring in the result). First, let me note that I do not speculate about anything in this case. My observation that time, effort, and expense will be associated with hiring, preparing, and presenting evidence from, and evaluating evidence from, one or more witnesses qualified as experts in the fields of accounting or actuarial matters (much less the expense involved if both parties hire, and present evidence from, competing experts) is based simply on common sense, life experience, and my experience as a lawyer and as a judge. See also Wilkinson, 905 So.2d at 6 (Yates, P.J., concurring in the result).

Moreover, I believe that long-accepted and sound rules of legal analysis and statutory construction make it very much within our “purview” to comment on the practical consequences of our holdings. This and other appellate courts do this almost every day, including in cases in which statutory language is interpreted.

Thus, the legal analysis of § 30-2-51(b) set out in my writing in Wilkinson was not premised upon the practical consequences of the interpretation given to that statute in Applegate and McAlpine. Similarly, upon initially drafting the comments on those practical consequences that are contained in the first paragraph of this writing, I did not set out to utilize those consequences as the basis for my interpretation of the statute. Instead, it was initially my purpose merely to comment on the consequences of the court’s holding, which, as noted, I believe to be reasonably within the purview of this or any other judge to do.

After reflecting further upon the issue of the practical consequences of the holdings in Applegate and McAlpine, however, I must now conclude that I was omissive in the analysis I offered in Wilkinson. I believe the practical consequences of one interpretation of § 30-2-51 (b) over another interpretation should in fact bear on the search for the legislative intent of that statute. In Jefferson County v. Acker, 885 So.2d 739 (Ala.2003), our Supreme Court wrote:

“ ‘This Court has held that the fundamental rule of statutory construction is to ascertain and give effect to the intent of the Legislature in enacting a statute. IMED Corp. v. Systems Engineering Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). If possible, a court should gather the legislative intent from the language of the statute itself. Advertiser Co. v. Hobbie, 474 So.2d 93 (Ala.1985). If the statute is ambiguous or uncertain, the court may consider conditions, that might arise under the provisions of the statute and examine results that would flow from giving the language in question one particular meaning rather than another. Clark v. Houston County Comm’n, 507 So.2d 902, 903-04 (Ala.1987). The legislative intent may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained by its passage. Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa County, 589 So.2d 687, 689 (Ala.1991) (citing Ex parte Holladay, 466 So.2d 956 (Ala.1985)).’ ”

Jefferson County v. Acker, 885 So.2d at 742-43 (quoting Norfolk So. Ry. Co. v. Johnson, 740 So.2d 392, 396 (Ala.1999)) (emphasis added). Likewise, in Ex parte Berryhill, 801 So.2d 7, 9-10 (Ala.2001), our Supreme Court, noting that the “polestar of statutory construction, is to ascertain and give effect to the Legislature’s intent in enacting a statute,” explained:

“ ‘In deciding between alternative meanings ..., we will not only consider the results that flow from assigning one meaning over another, but will also presume that the legislature intended a rational result, one that advances the legislative purpose in adopting the legislation, that is “workable and fair,” and that is consistent with related statutory provisions.’ ”

Ex parte Berryhill, 801 So.2d at 10 (quoting John Deere Co. v. Gamble, 523 So.2d 95, 100 (Ala.1988)) (emphasis added).

On the basis of the foregoing, including particularly my concurring opinion in Wilkinson, I disagree with the main opinion’s holding that the trial court erred in making a division of the husband’s retirement benefits without requiring the parties to present evidence of the present value of those benefits.

Nonetheless, the trial court’s judgment, in my opinion, is not without some error. The judgment, as worded, awards to the wife a portion (50%) of retirement benefits earned by the husband both before the marriage began and, if the husband continues working for the military following the divorce, after the marriage ends. While, for the reason explained in the main opinion, any error as to the trial court’s award to the wife of a portion of any retirement benefits earned prior to the marriage has been waived by the husband, the same cannot be said as to the error in awarding to the wife a portion of the retirement benefits that may be earned by the husband after the marriage. See Wilkinson, 905 So.2d at 2-3. Section 30-2-51(b)(l), Ala.Code 1975, provides that retirement benefits to be awarded in a divorce must have been accumulated during the marriage. I would reverse the trial court’s judgment and remand the cause for the trial court to enter a judgment consistent with this provision.


source: Caselaw Access Project

author: PITTMAN, Judge. MURDOCK, Judge,

license: Public Domain

text:
    L.C.S. v. J.N.F. J.N.F. v. A.S., C.S., and L.C.S.
    2030567 and 2031028.
    Court of Civil Appeals of Alabama.
    April 15, 2005.
    Certiorari Denied May 26, 2006 Alabama Supreme Court 1041137.

      John D. McCord of McCord & Martin, Gadsden, for appellant L.C.S.
    Dani V. Bone, Gadsden, for appel-lee/cross-appellant J.N.F.
    Leon Garmon, Gadsden, for appellees A.S., C.S., and L.C.S.
   PITTMAN, Judge.

These two appeals involve a child, C.L.S. (hereinafter “the child”), who is currently at the center of litigation involving L.C.S., the child’s mother (hereinafter “the mother”); A.S. and C.S., the child’s maternal grandparents, who have petitioned to adopt the child (hereinafter “the maternal grandparents”); and J.N.F., a man who has claimed to be the child’s father. The parties have been before this court on one previous occasion. In J.N.F. v. A.S., 866 So.2d 582 (Ala.Civ.App.2003) (“J.N.F. J”), this court considered the propriety of a judgment of the Etowah Probate Court (“the probate court”) allowing the maternal grandparents to adopt the child despite J.N.F.’s unadjudicated objection to the proposed adoption. The main opinion in J.N.F. I sets forth much of the pertinent initial procedural history:

“In March 2002, the [maternal grandparents] filed their petition in the Eto-wah Probate Court, seeking to adopt the child; the petitioners identified the mother as being the only known person ‘from whom consents and relinquish-ments to th[e] adoption are required by law and they alleged that the child had resided in their home since her birth. The mother gave written consent to the adoption of the child by the petitioners, and the probate court entered an order on March 26, 2002, awarding pendente lite custody of the child to the petitioners and setting a ‘dispositional hearing’ for June 19, 2002. The probate court further directed that notice of the proceedings be served in the manner prescribed by § 26-10A-17, Ala.Code 1975, which provided, at the time of the probate court’s order, that ‘notice of pen-dency of [an] adoption proceeding shall be served by the petitioner on,’ among other persons, ‘[t]he father and putative father of the adoptee if made known by the mother or otherwise known by the court.’ Section 26-10A~17(a)(10). Section 26-10A-17(c) provides for service ‘by publication, by posting, or by any other substituted service’ upon a putative father ‘[i]f the identity or whereabouts of the parent is unknown, or if the one parent fails or refuses to disclose the identity or whereabouts of the other parent.’
“On April 10, 2002, the probate court directed that notice to ‘the unknown or undisclosed parent of [the child]’ of the June 19, 2002, adoption proceedings be published at the expense of the petitioners. The notice of adoption was published for four consecutive weeks in a newspaper of general circulation in Etowah County; it was last published on May 8, 2002. On June 4, 2002, within 30 days of the final publication date of the notice of adoption, an attorney filed in the probate court a notice of his appearance on behalf of a man claiming to be the child’s father, J.N.F....; [J.N.F.] also filed an ‘objection’ to the adoption, averring that he was a ‘fit and proper person’ to have custody of the child and that DNA testing should be ordered to ascertain the child’s paternity.
“The record does not reflect what transpired at the June 19, 2002, hearing on the adoption petition; however, the parties in the briefs to this court contend that the probate court gave them permission to file exhibits. On June 20, 2002, [J.N.F.] filed a number of documents in the probate court, including a calendar that, [J.N.F.] alleged, reflected the number of days the child had spent in [J.N.F.] home, a pediatric-clinic record signed by the mother identifying [J.N.F.] as the child’s father, and documents indicating expenditures by [J.N.FJ’s family on behalf of the child for day care and medical care. On June 21, 2002, the petitioners filed copies of papers that, they alleged, concerned the circumstances of [J.N.F.] separation from military service. Finally, on June 25, 2002, [J.N.F.] submitted additional financial documents that he claimed showed day-care expenditures made by him on behalf of the child.
“... In its judgment, the probate court stated, in pertinent part:
“‘This above-styled cause is now properly before the Court for disposition; and it now appears that an Interlocutory Order has been entered in this matter ...; that due and proper notice of these proceedings has been perfected on those entitled; that all required consents to the adoption have been placed of record; and that all other requisites of law have been met; and on motion the Court proceeds; and
“ ‘The Court being satisfied from clear and convincing evidence adduced that the facts alleged in said petition are true; that the adoptee has been in the actual physical custody of the Petitioner^) for a period of sixty (60) days or more; that there has been no contest or objections brought in this cause; that the Petitioner(s) is/are suitable to be the parent(s) of said adoptee and he/she/they desires to establish a pareni/child relationship with the adoptee; that the best interest of the adoptee will be served by granting the petition; and that a change [of name of the adoptee and a change] of guardianship to the Petitioner(s) is proper.
“ ‘It is therefore ORDERED, ADJUDGED AND DECREED by the Court that the Petition for leave to adopt ... be and the same is hereby granted....”’

866 So.2d at 582-84 (emphasis and footnotes omitted).

On appeal from that judgment, this court reversed. Although no single opinion garnered enough votes to amount to a majority opinion of this court, a reading of the three separate opinions offered by the judges voting to reverse the judgment indicates that the probate court’s judgment was reversed because J.N.F. had filed a timely contest of the proposed adoption and, therefore, the contest should have been addressed by the probate court on its merits. See J.N.F. I, 866 So.2d at 584 (main opinion); 866 So.2d at 585 (Murdock, J., concurring in the result); 866 So.2d at 585 (Yates, P.J., concurring in the result in part and dissenting in part, joined by Crawley, J.).

On July 2, 2002, the day before filing a notice of appeal from the probate court’s adoption judgment, J.N.F. filed a complaint in the Etowah Juvenile Court (“the juvenile court”) seeking a determination that he was the father of the child and an award of custody as to the child. Because J.N.F. I was pending before this court, the juvenile court stayed all proceedings until that appeal was decided.

Once J.N.F. I was decided, proceedings resumed in both courts. J.N.F. moved that the adoption proceedings be transferred to the juvenile court pursuant to Ala. Code 1975, § 26-10A-24(e); however, the probate court entered an order denying that motion, and this court denied, as untimely filed, a petition for a writ of mandamus challenging that order. Ex parte J.N.F. (No. 2020959, July 22, 2003), 891 So.2d 451 (Ala.Civ.App.2003) (table). Guardians ad litem were appointed by both courts to represent the interests of both the mother (who was a minor until July 2004) and the child. In July 2003, J.N.F. moved the probate court for a hearing in the adoption case, whereupon the maternal grandparents filed an objection in the probate court to further evidentiary hearings, arguing that J.N.F. had failed to register until July 1, 2002, with the Alabama Putative Father Registry, as established in Title 26, Chapter 10C, Ala.Code 1975, and that that omission barred his contest of the proposed adoption of the child. Without expressly acting on the maternal grandparents’ motion, the probate court set a final healing on the proposed adoption for October 7, 2003; however, that hearing was continued by the probate court because it had been scheduled on the same day that the juvenile court had directed deoxyribo-nueleie-acid (DNA) testing of the mother and the child. That scheduled DNA testing did not actually occur, however, until January 2004, at which time the probability of J.N.F.’s paternity of the child was determined to be 99.97%. By that time, the mother, acting through her guardian ad litem, had filed her own motion in the probate court for transfer of the adoption action to the juvenile court; however, that motion was not initially acted upon by the probate court.

In February 2004, the juvenile court held an ore tenus proceeding on J.N.F.’s paternity and custody action; at that time, an attorney purporting to represent the mother filed a motion to dismiss that action, contending that the juvenile court had no jurisdiction to act. The juvenile court entered a judgment on March 5, 2004, denying the motion to dismiss and declaring J.N.F. to be the father of the child; although the juvenile court denied J.N.F.’s custody request, J.N.F. was awarded visitation with the child and was directed to pay child support as to the child. The mother filed a postjudgment motion to alter, amend, or vacate that judgment; however, that motion was denied. The mother filed a timely notice of appeal from the juvenile court’s judgment.

In July 2004, after the appeal had been taken from the juvenile court’s judgment, J.N.F. filed in the probate court a motion to dismiss the adoption proceedings, alleging, in pertinent part, that the original adoption application had been defective and/or fraudulent in a number of respects; he also filed a response in support of the mother’s earlier motion to transfer the adoption proceedings to the juvenile court. However, the mother, upon attaining the age of majority, appeared through counsel and withdrew the motion to transfer that her guardian ad litem had filed. The probate court then held an ore tenus proceeding on the maternal grandparents’ adoption petition; after that proceeding, the mother filed a written consent to the proposed adoption. On July 30, 2004, the probate court entered a judgment granting the maternal grandparents’ adoption petition; in that judgment, the probate court concluded, among other things, that J.N.F.’s consent to the adoption, which is required under AIa.Code 1975, § 26-10A-7, “may be implied by [his] actions and/or inactions ... pursuant to Section 26-10A-9.” J.N.F. timely appealed from that judgment, and this court granted his motions to stay that judgment pending further orders of this court and to incorporate the appellate record from J.N.F. I into the record in the appeal from the probate court’s judgment of adoption.

Ala.Code 1975, § 12-15-120(a), provides that an appeal to a circuit court from a judgment of a juvenile court may be taken within 14 days of the entry of the juvenile court’s judgment and that appeals “under this chapter” are to “take precedence over all other business of the court to which the appeal is taken.” Although this court has held that that statute was superseded by the promulgation of Rule 28, Ala. R. Juv. P. (Wright v. Montgomery County Dep’t of Pensions & Sec., 423 So.2d 256, 257 (Ala.Civ.App.1982)), and although that statute does not expressly address direct appeals to this court (compare Ala.Code 1975, § 26-10A-26(b), pertaining to adoption appeals), this court has, nonetheless, sought to dispose of appeals from juvenile-court judgments with dispatch, given the importance of family-law questions generally presented by the parties to such appeals. See Rule 28, Ala. R. Juv. P., Comment to Amendment Effective November 15, 1985. However, we have departed from our usual practice and have deferred our consideration of the appeal from the juvenile court’s judgment of paternity until the submission of the appeal from the probate court’s judgment allowing the proposed adoption. Indeed, as will be discussed below, our resolution of the appeal from the probate court’s judgment of adoption directly affects our disposition of the appeal from the juvenile court’s paternity judgment, and we have therefore elected to treat both appeals in the same opinion.

J.N.F. argues that the probate court did not have the power to determine whether the adoption should be allowed during the pendency of the appeal from the juvenile court’s judgment of paternity. We disagree; we perceive no legal impediment to the probate court’s exercise of its statutory jurisdiction to determine whether a man may be deemed to have consented to an adoption petition simply because a dispute exists concerning the validity of another court’s judgment declaring that that man is, in fact, the father of the proposed adoptee. The probate court’s power to grant an adoption under the AAC is expressly conditioned upon the existence of the consent of the appropriate parties. The probate court’s jurisdiction over the adoption petition was thus correlative of, not in conflict with, the juvenile court’s jurisdiction to declare J.N.F. to be the child’s biological father. Cf. Ex parte C.L.C., 897 So.2d 234, 237 (Ala.2004) (holding that a probate court retained “exclusive jurisdiction over the issue of whether or not to grant or deny [a] petition to adopt” a child notwithstanding the juvenile court’s jurisdiction to terminate parental rights of child’s father).

We next address whether, as J.N.F. argues, the probate court could not grant the maternal grandparents’ petition because, he says, the petition was “a fraud upon the Probate Court” in that the child’s father’s identity and location were falsely alleged by the maternal grandparents to be unknown. J.N.F.’s argument overlooks the decision of this court in J.N.F. I, which occurred after the filing of the original petition for adoption in this cause; we reversed the probate court’s original judgment and directed that court, on remand, to consider J.N.F.’s contest of the adoption in deciding whether to grant the maternal grandparents’ adoption petition. In effect, J.N.F. I held that the probate court could, and should, consider whether the requested adoption should take place despite any misstatements appearing in the maternal grandparents’ petition. The failure of the maternal grandparents to file an amended adoption petition after this court’s remand in J.N.F. I or after the probate court’s ore tenus proceeding does not affect the power of the probate court to award the maternal grandparents the relief to which the probate court deemed them to be entitled under the evidence. See Rules 15(b) and 54(c), Ala. R. Civ. P.

Finally, we address whether the probate court’s judgment granting the maternal grandparents’ petition on the basis of J.N.F.’s having given implied consent to the adoption is unsupported by the evidence, as J.N.F. contends. As we have stated, the probate court determined that J.N.F.’s consent to the adoption could be implied pursuant to Ala.Code 1975, § 26-10A-9, which states the conditions upon which a consent to an adoption may be implied. In support of his argument, J.N.F. quotes the version of § 26-10A-9(a) that was in effect from 1999 through April 2002 and that listed the following four acts as bases for implied consent:

“(1) Abandonment of the adoptee. Abandonment includes, but is not limited to, the failure of the father, with reasonable knowledge of the pregnancy, to offer financial and/or emotional support for a period of six months prior to the birth.
“(2) Leaving the adoptee without provision for his or her identification for a period of 30 days.
“(3) Knowingly leaving the adoptee with others without provision for support and without communication, or not otherwise maintaining a significant parental relationship with the adoptee for a period of six months.
“(4) Receiving notification of the pen-dency of the adoption proceedings under Section 26-10A-17 and failing to answer or otherwise respond to the petition within 30 days.”

However, as the main opinion and Judge Thompson’s dissenting opinion in J.N.F. I noted, the Legislature enacted Act No. 2002-417 in April 2002, while this case was pending, which added “[flailing to comply with Section 26-10C-1” as a fifth basis upon which a parent’s implied consent to an adoption may be predicated. Section 26-10C-1, Ala.Code 1975, in turn, provides for registration of unmarried fathers of children with the Alabama Putative Father Registry as a prerequisite to claiming parental rights. Moreover, Act No. 2002-417 added a second subsection to § 26-10A-9 under which implied consent to an adoption “may not be withdrawn by any person.”

It is undisputed that J.N.F. did not comply with § 26-10C-1. That section provides that a person filing a notice of intent to claim paternity of a child shall file a form with the State Department of Human Resources that includes various items of information, including the claimant’s name, Social Security number, date of birth, and current address; similar information regarding the mother (if known); the claimant’s income and financial information; the child’s name and place of birth (if known); and the possible dates of sexual intercourse. Ala.Code 1975, § 26-10C-l(c). Since 1999, § 26-10C-l(i) has provided that any person claiming to be the biological father of a child who fails to file a proper notice of intent to claim paternity with the Registry within 30 days of the birth of any child out of wedlock “shall be deemed to have given an irrevocable implied consent in any adoption proceeding.” The child in this case was born on June 10, 2001; however, J.N.F. did not file a notice of intent to claim paternity with the Putative Father Registry within the 30-day period specified in § 26-10C-l(i).

Under Ala.Code 1975, § 26-10A~9(a)(5), § 26-10A-9(b), and § 26-10C-l(i), the effect of J.N.F.’s failure to file a notice of intent to claim paternity in compliance with Ala.Code 1975, § 26-10C-1, is clear: J.N.F. may properly be deemed to have given an i'i'revocable implied consent to the adoption of the child. The Legislature’s intent, expressed in Section 3 of Act No. 2002-417, that its amendments to §§ 26-10A-9 and 26-10C-1 be applied retroactively to January 1,1997, indicates that the outcome reached by the probate court in this case is precisely that which the Legislature intended.

Interestingly, although the main opinion in J.N.F. I alluded to potential constitutional concerns regarding the retroactive application of Act No. 2002-417 in pending adoption litigation (while indicating that such concerns should be addressed by the probate court in the first instance), see 866 So.2d at 585, J.N.F. has not contended, at trial or on appeal, that the retroactive application of Act No. 2002-417 violates the United States or Alabama Constitutions in any manner. It is well settled that in the absence of a valid constitutional challenge, the judicial branch is bound to enforce the will of the Legislature. As the Supreme Court stated in Beasley v. Bozeman, 294 Ala. 288, 290, 315 So.2d 570, 571 (1975), “[t]he Legislature’s power should not be interfered with unless it is exercised in a manner which plainly conflicts with some higher law.”

In this case, the probate court’s conclusion that J.N.F. impliedly consented to the adoption of the child is amply supported by the record and by the law of this state. In addition, evidence presented at trial concerning the living arrangements of the maternal grandparents, J.N.F.’s checkered military career and labor history, and the mental and learning disorders from which J.N.F. apparently suffers supports the probate court’s determination that permitting the maternal grandparents to adopt the child would serve the child’s best interests. We thus conclude that the judgment of the probate court permitting the maternal grandparents to adopt the child is due to be affirmed.

Our conclusion regarding the appeal from the probate court’s judgment allowing the adoption directly affects the viability of the mother’s appeal from the juvenile court’s judgment of paternity. As we stated in Young’s Realty, Inc. v. Brabham, 896 So.2d 581, 583 (Ala.Civ.App.2004):

“ ‘ “The general rule is that an appeal is subject to dismissal if, pending the appeal, an event occurs which makes a determination of the appeal unnecessary.” ’ Board of Adjustment of Montgomery v. Priester, 347 So.2d 530, 531 (Ala.Civ.App.1977) (quoting Moore v. Cooke, 264 Ala. 97, 100, 84 So.2d 748, 749-50 (1956)). One such event is an elimination of a justiciable controversy between the parties pending appeal. See Water Works & Sewer Bd. of Birmingham v. Petitioners Alliance, 824 So.2d 705, 708 (Ala.2001) (dismissing appeal from action seeking declaratory relief on the basis that ‘a present controversy between any of the parties’ did not exist).”

During the pendency of the mother’s appeal from the juvenile court’s judgment declaring J.N.F.’s paternity, she gave unconditional consent to the adoption of the child by the maternal grandparents, and the probate court acted on that consent by entering a judgment permitting the child to be adopted by the maternal grandparents. Under Ala.Code 1975, § 26-10A-29(b), a portion of the AAC, after a final judgment of adoption has been entered, the natural parents of the adoptee are thereafter “relieved of all parental responsibility for the adoptee and will have no parental rights over the adoptee” (emphasis added). Because the probate court, after the juvenile court entered its paternity judgment in favor of J.N.F. as to the child, permitted the maternal grandparents to adopt the child, and because we have concluded that the probate court correctly entered that judgment, the mother’s appeal from the juvenile court’s judgment of paternity is moot as a matter of law— even if this court were to reverse the juvenile court’s judgment, the mother would in no event be legally entitled to any greater parental role in the life of the child. Because the appeal from the juvenile court’s judgment is moot, we dismiss that appeal.

2030567 — APPEAL DISMISSED.

BRYAN, J., concurs.

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

MURDOCK, J., concurs in the result, with writing, which CRAWLEY, P.J., joins.

2031028 — AFFIRMED.

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

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

MURDOCK, Judge,

concurring in the result as to case number 2030567 and concurring as to case number 2031028.

I agree with the main opinion that our affirmance of the judgment of adoption of the probate court in case number 2031028 makes the separate appeal from the juvenile court’s judgment of paternity moot. I disagree as to the reason this is so, however.

Insofar as the appeal of the paternity judgment is concerned, the relief requested would amount to an adjudication by this court that would deprive the father of any parental rights to the child. The appeal seeking that adjudication is moot, not because the party prosecuting that appeal has lost her own parental rights, but because such an adjudication has already been achieved in a separate proceeding; the father cannot be deprived by virtue of the appeal of the paternity judgment of any parental rights of which he has not already been deprived by virtue of our affirmance of the judgment in the adoption case.

      . The caption of that action (In re: C.S.) did not bear an adversarial style, and because the maternal grandparents were served with process in the action (apparently because of the mother's minority), they initially attempted to appear and to file motions in the case; however, the juvenile court later ruled that the maternal grandparents were not parties to the paternity action and ordered all papers filed by the maternal grandparents struck from the case file.

      . If neither the AAC nor statutes specifically applicable to probate courts speak to a particular procedural issue, the procedures applicable in circuit courts apply to adoption proceedings in the probate courts. See Ala.Code 1975, § 12-13-12; In re Morrison, 388 So.2d 1014, 1015 (Ala.Civ.App.1980); and Ex parte Hicks, 451 So.2d 324, 326 (Ala.Civ.App.1984).

      . Although J.N.F. testified in the probate court that he had filed with the Putative Father Registry during the month of April after the child's birth, the record in the appeal from the juvenile court's judgment contains a document purporting to be a form mailed to the Registry on July 2, 2002.

      . We need not reach the maternal grandparents' alternative contention that J.N.F. "abandoned” the child by unilaterally enlisting in the armed services after the birth of the child.

      . I am concerned that the main opinion's focus upon the mother’s loss of parental rights has the effect of a holding that a mother who has lost her parental rights has no standing to contest the father’s parental status. The correctness of such a result might be argued (the ability of a party to contest a father's paternity action or to seek the termination of a parent’s parental rights is not dependent on that party's status as a parent of the child), and the mootness of the appeal of the paternity judgment does not, in my opinion, turn on this issue.


author: MURDOCK, Judge.

text:
    Patsy S. MILLER v. ASSOCIATED GULF LAND CORPORATION.
    2030426.
    Court of Civil Appeals of Alabama.
    May 27, 2005.
    Rehearing Denied Dec. 30, 2005.
    Certiorari Denied May 12, 2006 Alabama Supreme Court 1050472.

      A. Carson I. Nieolson of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for appellant.
    Allan R. Chason of Chason & Chason, P.C., Bay Minette, for appellee.
   MURDOCK, Judge.

This case involves a covenant restricting the use of certain property owned by Patsy S. Miller in Orange Beach.- Miller claims that the covenant should not be enforced against her property. Following a bench trial, the trial court entered a judgment against Miller. We affirm.

In 1967, Associated Gulf Land Corporation (“AGLC”) purchased large tracts of land located in what is now the municipality of Orange Beach. Included in one of those tracts is the property now owned by Miller and four adjoining lots situated immediately to the west of the Miller property. The Miller property fronts Alabama Highway 182, and it is approximately 75 feet wide and 300 feet deep.

In 1977, AGLC sold what is now the Miller property to Jerry M. Gilbreath. In 1979, Gilbreath sold the property to William F. Long. Sometime before 1988, a house was constructed on the property. In 1988, Long sold the property and the house located thereon to Patsy Miller and her husband, Larry Miller. At the time the Millers purchased the subject property, they already owned a house nearby, but on the other side of Highway 182; there was testimony that the Millers purchased the subject property because of the existence and ongoing construction of condominiums on the south side of Highway 182 in the vicinity. In 1996, Larry Miller conveyed his interest in the property to Patsy Miller, who is now the sole owner of the property.

The dispute arises from the following language in the deed from AGLC conveying the subject property to Gilbreath:

“The Grantor hereby expressly restricts the use of said real estate by the Grantees, their heirs and assigns to the exten-et [sic] that said real estate shall be used only for residential purposes and shall never be used for a trailer park or any other commercial purpose. The burden of this restrictive covenant shall run with said lands, and shall be binding upon the Grantees and their heirs and assigns; provided, however, the benefit of this restrictive covenant is and shall be personal to the Grantor, its successors and assigns, and is a personal covenant which shall not run with any other lands conveyed by Grantor to others.”

This restriction was reiterated in the subsequent deeds conveying the property. Miller concedes that she was aware of the “Deed Restriction,” as she terms it, when she and her husband purchased the property in 1988.

At the time the Millers purchased their property, the four adjoining lots were also limited to residential use, and only one even had a house on it. The adjoining lots (1) had all been owned by AGLC, (2) were approximately the same size as Miller’s property, and (3) were all subject to a restrictive covenant similar to the one quoted above. Beginning in 1995, AGLC released the adjoining lots from the covenant in return for consideration from the owners of those lots.

As a result of AGLC’s release of the four adjoining lots from the covenant, Miller’s immediate neighbors to the west are now two restaurants doing business as “Bubba’s Seafood” and “Jake’s Steakhouse,” and the parking lots for those businesses. In addition, a theme park doing business as “Adventure Island” is now located immediately to the west of those two restaurants, although the testimony at trial indicated that AGLC played no role in enabling the theme park to be located and operated on that site. In addition, a highrise “Holiday Inn” hotel and a business known as “Souvenir City” are located across Highway 182 from Miller’s property. It is not clear when the Holiday Inn was constructed, and it is not clear from the record that AGLC played any role in enabling the Holiday Inn or Souvenir City to be located where they are. Furthermore, the road that all of these properties face, Alabama Highway 182, has been widened from two lanes at the time of the Millers’ purchase to five lanes today. AGLC continues to own land in the general area of the Miller property, including approximately 24 acres of undeveloped land immediately to the north and east of, and contiguous with, Miller’s property and the adjoining lots.

In July 2002, Miller filed a “Complaint for Declaratory and Equitable Relief” against AGLC pursuant to Ala.Code 1975, § 6-6-220 et seq. She alleged that she had requested that AGLC release her property from the covenant at issue but that AGLC had refused to do so. Miller also alleged that the covenant was personal to AGLC and Gilbreath and was therefore not enforceable against her. Further, she alleged that her property was no longer suitable for residential use and that continued enforcement of the restrictive covenant would “impose an undue hardship and would be inequitable in light of the development of the surrounding property for commercial purposes.” Miller requested that the trial court declare the restrictive covenant unenforceable.

In October 2003, the trial court conducted an ore tenus proceeding. In January 2004, it entered a judgment in favor of AGLC. Miller appealed to this court. We transferred the case to the Alabama Supreme Court for lack of subject-matter jurisdiction. The Supreme Court deflected the case to this court, pursuant to § 12-2-7, Ala.Code 1975.

“ “We note that under the ore tenus standard of review, the trial court’s findings of fact based on oral testimony, and a judgment based on those findings, are given a presumption of correctness. A judgment based on such findings will not be reversed unless it is shown to be plainly and palpably wrong. The appellate courts are not allowed to substitute their own judgment for that of the trial court if the trial court’s decision is supported by reasonable inferences to be drawn from the evidence. The reason for giving such deference to the trial judge’s findings based on disputed evidence in ore tenus proceedings is that the trial judge has the benefit of observing the witnesses’ manner and demeanor and has the better opportunity to pass upon the credibility of their testimony.’
“Ex parte Pielach, 681 So.2d 154, 154-55 (Ala.1996) (citations omitted). ‘Under the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness and will not be reversed unless found to be plainly and palpably wrong.’ Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992) (citations and internal quotation marks omitted).”

Creel v. Crim, 812 So.2d 1259, 1260-61 (Ala.Civ.App.2001).

I.

On appeal, Miller first argues that the deed restriction at issue was personal to AGLC and Gilbreath, i.e., that the burden imposed by that restriction does not “run with the land” so as to be binding upon her.

In order for a covenant to be enforced as one that “runs with the land,” it must both (1) have been intended by the parties creating it to run with the land and (2) touch and concern the land. See, e.g., Allen v. Axford, 285 Ala. 251, 231 So.2d 122 (1970); Smith v. First Sav. of Louisiana, FSA, 575 So.2d 1033 (Ala.1991); Patterson v. Atlantic Coast Line R. Co., 202 Ala. 583, 589, 81 So. 85, 91 (1919) (noting that, in keeping with the seminal English case known as “Spencer’s case” (5 Coke, 16), “a covenant will not run with the land if it be merely collateral, and doth not touch or concern the thing demised”). In discussing these requirements, we find it convenient to utilize the following definitions stated in the Restatement (Third) of Property (Servitudes) § 1.5 (2004):

“(1) ‘Appurtenant’ means that the rights or obligations of a servitude are tied to ownership or occupancy of a particular unit or parcel of land. The right to enjoyment of an easement or profit, or to receive the performance of a covenant that can be held only by the owner or occupier of a particular unit or parcel, is an appurtenant benefit. A burden that obligates the owner or occupier of a particular unit or parcel in that person’s capacity as owner or occupier is an appurtenant burden.
“(2) ‘In gross’ means that the benefit or burden of a servitude is not tied to ownership or occupancy of a particular unit or parcel of land.
“(3) ‘Personal’ means that a servitude benefit or burden is not transferable and does not run with land. Whether appurtenant or in gross, a servitude benefit or burden may be personal.”

Turning first to the requirement that the covenant have been intended by the parties creating it to run with the land, we observe that the deed from AGLC to Gilbreath expressly addresses this issue. First, as to the burden of the covenant, the deed restricts the use of what is now the Miller property “by the Grantees, their heirs and assigns.” Further, it specifically provides that the burdened property (“the servient estate”) shall “never be used for a trailer park or any other commercial purpose.” (Emphasis added.) Even plainer and more to the point, the deed expressly states that “the burden of this restrictive covenant shall run with said lands and shall be binding on the grantees, their heirs and assigns.” (Emphasis added.)

While the deed from AGLC to Gilbreath clearly expresses an intention for the burden of the covenant to run with the ser-vient estate, it appears to express the contrary intention as to the benefit of the covenant, namely, that it be “personal” to AGLC. The deed states that “[t]he benefit of this restrictive covenant is and shall be personal to the Grantor, its successors and assigns, and it is a personal covenant which shall not run with any other lands conveyed by Grantor to others.” We note that the word “personal” in the first clause of the quoted sentence may be read consistently with both the above-quoted definition and with the declaration of the second clause of the quoted sentence, i.e., as an expression of the parties’ intention that the benefit of the covenant not “run” with any of the land that, although retained by the covenantee (AGLC) at the time of the creation of the covenant, is subsequently conveyed by the covenantee to a third party.

We are cited to no authority, and we know of none, that an expression of intention by the parties creating a covenant that the burden of that covenant run with the servient estate is ineffective where the parties simultaneously express an intention that the benefit of the covenant merely be “personal” to the covenantee. As to the ultimate question of whether, aside from the intention of the parties, a covenant will be actually enforced as one that runs with the land, we likewise are cited to no authority for the proposition that the burden of the covenant may not run with the servient estate unless the benefit of the covenant also runs with some benefited land.

We recognize that there does exist a division of authority in other jurisdictions as to whether the burden of a covenant may run with a servient estate when the benefit of the covenant is held in gross. See 9 Richard R. Powell, Powell on Real Property 60.04[3]a., notes 48 and 49 (2004), and accompanying text. While Poivell on Real Property, like many published opinions, appears in § 60.04[3]a. to use the terms “personal” and “in gross” interchangeably rather than as defined above, the authorities cited by Powell on Real Property to illustrate the division of authority appear to concern the question whether a covenantee can enforce a covenant even when the covenantee owns no land to which the benefits of that covenant attach either by the terms of the covenant or as a practical matter (i.e., when the benefit of the covenant is held “in gross”). See id. That, however, is not the case presented here. AGLC continues to own a substantial amount of the land that it owned at the time it created the covenant, including particularly the 24-acre tract contiguous with the Miller property. This is land to which the trial court could have found the benefit of the covenant to attach.

We turn now to the requirement that a covenant, in order to be enforced as one that runs with the land, must be one that “touches and concerns the land.” We first observe that the deed between AGLC and Gilbreath creating the covenant clearly places the burden of the covenant upon the land in question, not the grantee. More importantly, the very nature of the burden is one that obviously touches and concerns the servient estate conveyed by that deed.

On the other hand, the relationship between the covenant and some benefited land finds no expression in the deed itself. Nonetheless, AGLC argues and points to evidence indicating that the covenant has the necessary tie to neighboring land owned by AGLC because, as a practical matter, it does in fact benefit that land, particularly the 24 acres owned by AGLC and lying immediately to the north and east of the Miller property. Specifically, the president of AGLC, John Pilcher, Jr., testified, and AGLC now argues, that the covenant allows AGLC to control the nature and timing of any nonresidential use of the servient estate and thereby enhances the potential for use and enjoyment of the AGLC property.' While a different conclusion might have been reached by the trial court had it weighed the evidence differently, we cannot say that the trial court was plainly wrong to agree with AGLC’s view of the evidence in this regard.

II.

Miller also argues that, even if the burden of the restrictive covenant would otherwise normally be deemed to run with the Miller property, it ought not, in equity, be allowed to do so under the particular facts of this case. Miller seeks to rely upon both the so-called “ehange-of-condi-tions” test and the so-called “relative-hardship” test. See generally Lange v. Scofield, 567 So.2d 1299 (Ala.1990), and Johnson v. H.J. Realty, 698 So.2d 781 (Ala.Civ.App.1997).

Citing Laney v. Early, 292 Ala. 227, 292 So.2d 103 (1974), AGLC responds that any consideration of the change of conditions must focus on the original purpose of the covenant. In Laney, the Supreme Court explained that

“ ‘[a] change in character of the neighborhood sufficient to defeat a restrictive covenant must have been so great as to clearly neutralize the benefits of the restriction to the point of defeating the object and purpose of the covenant.’”

292 Ala. at 233, 292 So.2d at 108 (quoting Thompson on Real Property, § 3174, 1962 Replacement Volume (1972 Supplement)). The Court applied this principle to a subdivision that had been divided by the construction of an interstate highway:

“Construction of 1-59 may separate one part of the subdivision from another area, it may detract from the aesthetic appearance of some lots within the subdivision, and it may depress the value of some lots, but it does not neutralize the essential purpose of the restrictions, because the subdivision remains utilized exclusively for residential purposes.... In and of itself, the Interstate does not defeat the purpose of the restrictions.”

Laney, 292 Ala. at 232-33, 292 So.2d at 108.

While there was some testimony from which the trial court in this case might have drawn a contrary inference, Pilcher testified repeatedly that the purpose of the covenant in question was not to ensure a residential neighborhood for what is now the Miller property or for the four adjoining lots lying to the west of it, but was instead to protect the balance of the AGLC-held property in the area. Specifically, he testified, without objection, that the purpose of the covenant was to benefit the 24 acres owned by AGLC by enabling AGLC to control the type and timing of any commercial development that might occur on the Miller property. The trial court could have found Pilcher’s testimony credible in this regard and could have elected to assign it significant weight in its judgment. While it may be that if the trial court had chosen to weigh the evidence before it differently, it could have come to a contrary conclusion, we certainly cannot say that the record, including particularly Pilcher’s testimony, does not provide substantial evidence to support the apparent conclusion by the trial court that the “object and purpose” of the covenant can still be fulfilled.

Finally, we turn to the “relative-hardship” test. Under this test, “ ‘a covenant will not be enforced if to do so would harm one landowner without substantially benefitting another landowner.’ ” Johnson v. H.J. Realty, 698 So.2d at 782 (quoting Lange, 567 So.2d at 1302). In Lange v. Scofield, 567 So.2d at 1302, the Supreme Court explained that it had at least “implicitly” approved the use of that test in such cases as Laney, 292 Ala. at 233, 292 So.2d at 109, and Allen, 285 Ala. at 259, 231 So.2d at 129. The Supreme Court continued:

“The factors to be considered in applying this test are well stated in 20 Am. Jur.2d Covenants, Conditions, & Restrictions § 313, at 876-77 (1965):
“ ‘Broadly speaking, the enforcement of building restrictions is governed by equitable principles, and will not be decreed if, under the facts of the particular case, it would be inequitable and unjust- The complainant’s right to insist on the restrictive covenant must be clear and satisfactory....
“ ‘The equitable enforcement of a restriction can be invoked only for the purpose of protecting the benefit which it was the object of the covenant to afford. If the restrictive covenant has ceased to have any beneficial or substantial value to the ... property, it can form no ground for equitable relief.... [I]f the defendant will be subject to great hardship or the consequences would be inequitable, relief will be denied.’ ”

Lange v. Scofield, 567 So.2d at 1302.

In the context of the deference owed to the trial court’s assessment of the equities in a case such as this, we note that the trial court here could have found that the equities do not so disproportionately disfavor Miller as they did the owners of the burdened properties in Lange and Johnson. In both of those cases, the burdened land would have been virtually unuseable if the restrictive covenants had not been lifted. Moreover, there was evidence in both of those cases from which the trial court could have concluded that the lifting of the covenant would not diminish the value or use of the neighboring property. In addition, we find it appropriate to emphasize that both the Supreme Court and this court in those cases merely affirmed a fact-intense, balancing-of-the-equities determination made by the trial courts in those cases.

In the present case, we are being called upon by the owner of the burdened land to reverse a fact-intense, balancing-of-the-equities judgment reached by the trial court. Foremost among the factors the trial court could have weighed in favor of AGLC in this regard is the fact, as discussed above, that continuing to allow AGLC to control the nature or extent of any release of the covenant would benefit AGLC in its use and enjoyment of its contiguous 24 acres, particularly the portion thereof lying closest to the Miller property. We cannot say that the trial court’s implicit finding that the covenant continues to substantially benefit AGLC’s land is plainly and palpably wrong.

We also note that, in assessing the equi-tableness of continuing to enforce the covenant, the trial court could have been influenced by the following: while a business known as Souvenir City is located directly across from the Miller property, the record indicates that a predecessor business of some nature was situated in the same location at least as early as the time at which the Millers bought their property, if not at the time the covenant was created; there was ongoing condominium development on the south side of Highway 182 at the time the Millers purchased the subject property; the record is not clear as to what role, if any, AGLC played in permitting the Holiday Inn to be located on the southern side of the highway; the evidence was undisputed that AGLC played no role in enabling the theme park located to the west of the adjoining properties to be constructed and operated on that site; both Gilbreath and, later, the Millers purchased the subject property knowing of the nature of the deed restriction and therefore at least constructively knowing (1) that nothing would prevent AGLC, if it ever chose to do so, from completely releasing that restriction as to any or all of the four lots lying immediately to the west of the Miller property and (2) that no similar residential restriction existed with respect to -the 24 acres of AGLC property lying immediately to the north and east of the Miller property; Miller no longer utilizes the property as her personal residence and she introduced no evidence of its value as a rental property; after initially receiving an indication that a complete release of the covenant by AGLC would result in the construction and operation of a car wash on the Miller property, Pilcher repeatedly requested information as to what use Miller sought to put the property, but those requests were consistently met with requests by Miller simply for a complete and unconditional release; Pilcher testified that in recent years AGLC has tailored the relief it has provided from similar restrictive covenants on other property so as to accommodate what both parties considered to be reasonable uses of the property; and Pilcher testified that AGLC was not interested in continuing to restrict the use of the Miller property strictly to single-family residential use and, in response to requests by Miller to release the covenant, had repeatedly indicated that it would consider doing so for a reasonable commercial use that would not harm the value of its neighboring property. The trial court also could have concluded that the Millers were experienced in real estate matters, having bought and/or sold several residential and commercial properties in or near what is now Orange Beach during the last two decades, including a lot intended for commercial use that is situated north of Highway 182, closer to Gulf Shores.

While the evidence (including substantial testimony from both Mr. and Mrs. Miller) might have been weighed differently by the trial court and, had that occurred, the trial court might have reached a different outcome, that is not the basis upon which we must assess the trial court’s judgment. It was within the province of the trial court to consider the credibility of the witnesses, to draw reasonable inferences from their testimony and from the documentary evidence introduced at trial, and to assign such weight to various aspects of the evidence as it reasonably may have deemed appropriate. Accordingly, our response to Miller’s well-made “relative-hardship” argument necessarily is controlled by the presumption that the trial court made the findings necessary to support its judgment, Transamerica Commercial Finance Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992), and the concomitant presumption in favor of those findings to the extent they were based on evidence received ore tenus. In order to reverse the trial court on the basis of the relative-hardship test, we would have to make our own credibility determinations and we would have to reweigh the evidence, neither of which we are allowed to do.

Miller’s complaint does not seek a modification of the covenant in a way that might accommodate the reasonable interests of both parties. Instead, it simply seeks to have the covenant lifted and thereby enable Miller to put her property to any commercial use whatsoever. We believe the trial court’s judgment against Miller and in favor of AGLC is supported by both the particular facts presented and the law. Accordingly, that judgment is due to be affirmed.

AFFIRMED.

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

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

      . One commentator notes that the traditional requirements for a restrictive covenant to "run with the land" at law are (1) that the covenant must "touch and concern” the land, (2) that the parties must intend the covenant to ran with the land, and (3) that there must be privity of estate, and that the traditional requirements for a restrictive covenant to "ran with the land” in equity are (1) that the covenant must “touch and concern” the land, (2) that the parties must intend the covenant to run with the land, and (3) that the successor to the "burden” must have notice of the covenant. See 9 Richard R. Powell, Powell on Real Property § 60.04[2] (2004) (discussing the requirements and noting the merger of law and equity). We note that, as a practical matter, instruments creating covenants commonly do not express whether the parties intended the covenant to run with the land. Accordingly, the fact that a covenant does in fact touch and concern the land often is seen as the best available evidence of the parties’ intention that the covenant run with the land. See, e.g., Allen v. Axford, 285 Ala. 251, 231 So.2d 122 (1970).
      The benefit or burden of a covenant "touches and concerns” the benefited land or the burdened land when it affects the value of that land (Callahan v. Weiland, 291 Ala. 183, 279 So.2d 451 (1973)) or, in the view of the Restatement (First) of Property, affects the "physical use and enjoyment” of the land (Restatement (First) of Property § 537).

      . Alternatively, given the fact that AGLC is a corporation with an indefinite existence, it might be said that the language in the AGLC-Gilbreath deed would be consistent with a finding that the parties intended the benefit of the covenant "to run,” so to speak, with the benefited land so long as, and to the extent that, that land remains in the hands of AGLC.

      . The Restatement (First) of Property takes the position that a burden may not run with a servient estate unless the performance of the covenant by the owner of the servient estate "will benefit the promisee or other beneficiary of the promise in the physical use or enjoyment of the land possessed by him, ... and the burden on the land of the promisor bears a reasonable relation to the benefit received by the person benefited.” Restatement (First) of Property § 537. Nothing in the Restatement appears to require that the benefit of the covenant run with the benefited land, or even be formally tied to it in the language of the covenant, in order for the covenantee to be able to enforce the covenant for so long as the covenantee continues to own the benefited land. The comments to § 537 merely discuss the "social interest in the utilization of land” and explain, among other things, that "[u]n-less a burden has some compensating advantage which prevents it from being on the whole a deterrent to land use and development, the running of the promise by which it was created is not permitted.” As discussed in more detail, infra, the trial court could have found that the 24-acre tract retained by AGLC and lying adjacent to the Miller property is land to which the “compensating advantage” of the covenant attaches in the present case.


author: PITTMAN, Judge.

text:
    ALABAMA BOARD OF NURSING v. Michael WILLIAMS.
    2040082.
    Court of Civil Appeals of Alabama.
    Nov. 18, 2005.
    As Modified on Denial of Rehearing March 24, 2006.
    Certiorari Denied May 12, 2006 Alabama Supreme Court 1050942.

      Troy King, atty. gen., and Gilda Branch Williams, asst. atty. gen. and gen. counsel, Alabama Board of Nursing, for appellant.
    Gregory B. Stein of Stein, Brewster & Pilcher, L.L.C., Mobile; and William F. Patty of Beers, Anderson, Jackson, Hughes & Patty, PC, Montgomery, for appellee.
   PITTMAN, Judge.

The Alabama Board of Nursing (“the Board”) appeals from a judgment of the Montgomery Circuit Court reversing an order of the Board that had suspended a license issued to Michael Williams to practice professional nursing and had imposed other disciplinary sanctions against Williams. We reverse the circuit court’s judgment.

The record reveals that Williams was first licensed by the Board as a professional nurse in 1985; since 1990, he has been principally employed as a nursing instructor at Bishop State Community College (“the College”). However, beginning in 1991, a series of complaints were lodged against Williams to the effect that he had sexually harassed female students at the College. The College investigated two of those complaints, in 1992 and in 1995, but ultimately concluded that they lacked evi-dentiary support beyond the accusers’ statements and determined that Williams should not be disciplined as to his employment. A third complaint, lodged in November 2000, was apparently not found to warrant discipline on the part of the College.

In 2001, the former husband of one of Williams’s students filed complaints with the president of the College, with the Alabama Department of Postsecondary Education, and with the Board arising from Williams’s alleged amorous relationship with that student. Although the Department of Postsecondary Education concluded that Williams had not violated policies of the College or of the State Board of Education, the Board undertook its own investigation of the sexual-harassment claims that had been brought against Williams.

In May 2002, the president of the College, after a hearing, indicated that Williams’s employment would be terminated effective May 27, 2002, “based upon [his] continued insubordination and ineffective instruction.” A letter sent by the president to Williams cited, as a basis for his termination, his having failed to complete an administrative assignment that he had received from the president and alluded to “several serious student complaints” appearing in his personnel file, “including complaints of sexual harassment which are being investigated currently by the Alabama Board of Nursing.” Williams later sought review of his termination from employment before a three-person employee-review panel, which was permitted under Ala.Code 1975, §§ 36-26-105 and 36-26-106, as they read in 2002 before the enactment of Act No. 2004-567, Ala. Acts 2004. The panel found that Williams had failed to complete an assignment as directed by the president of the College, had confronted a female coworker “in a manner unbecoming to a faculty member,” and had arrived late to a mandatory meeting; however, exercising its prerogative to review Williams’s punishment de novo, the panel determined that “termination was not the proper punishment for th[o]se transgressions” and instead imposed an unpaid 42-day suspension. On certiorari review, the Mobile Circuit Court entered a judgment affirming that determination, and this court, in turn, affirmed that judgment. Bishop State Cmty. Coll. v. Williams (No. 2021213, June 11, 2004), 915 So.2d 1184 (Ala.Civ.App.) (table), cert. denied, (No. 1031488, August 13, 2004) 920 So.2d 1142 (Ala.2004) (table).

On July 11, 2003, the Board issued a “Statement of Charges and Notice of Hearing” in which the Board ordered Williams to appear and show cause why his license to practice professional nursing should not be revoked on the basis that “[o]n multiple occasions from 1991 to 2001, [Williams] had engaged in inappropriate conduct of a sexual nature with students” at the College. According to the Board’s statement and notice, Williams’s conduct constituted grounds for disciplinary action under § 34-21-25, Ala.Code 1975, and under Board regulations barring, among other things, the exhibition of inappropriate or unprofessional conduct or behavior in the workplace. After a hearing before a hearing officer had been held, the Board entered an order containing findings of facts and conclusions of law; in its order, the Board determined that Williams’s conduct warranted disciplinary action and imposed sanctions, including a 3-month suspension of his nursing license and a subsequent 24-month period of probationary licensure status.

Pursuant to § 41-22-20, Ala.Code 1975, Williams sought judicial review in the Montgomery Circuit Court of the Board’s order. After the parties had filed written submissions in support of their respective positions, the circuit court entered a judgment reversing the Board’s order as unlawful. The judgment did not cite any specific subdivision of § 41-22-20(k), Ala. Code 1975, which sets forth various grounds upon which an administrative agency’s order may be reversed. However, the judgment plainly indicates the circuit court’s agreement with Williams’s argument that the Board’s reliance upon the sexual-harassment charges lodged against Williams since 1991 was somehow violative of constitutional due-process guarantees; the judgment stated, in pertinent part, that “[e]ven though [the] College and the [Board] are separate entities, they are still both entities with the State of Alabama” and “[t]he State of Alabama cannot have two bites at the apple.”

Our standard of review mirrors that of the circuit court:

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

Ex parte Alabama Bd. of Nursing, 835 So.2d 1010, 1012 (Ala.2001) (quoting Alabama Medicaid Agency v. Peoples, 549 So.2d 504, 506 (Ala.Civ.App.1989)).

We first address two preliminary contentions asserted by the Board. The Board first asserts that Williams’s arguments in the circuit court regarding remoteness in time and the preclusive effect of the actions of the College and the employee-review panel with respect to the various sexual-harassment allegations lodged against Williams were equivalent to the affirmative defenses of the doctrine of res judicata, collateral estoppel, or laches and that those defenses were not affirmatively pleaded before the Board. The Board further avers that § 41-22-13(1), Ala.Code 1975, which provides that, as a general matter, “[t]he rules of evidence as applied in nonjury civil cases in the circuit courts of this state shall be followed” in contested cases before administrative agencies, mandates application of the rules of civil procedure, such as Rule 8(c), Ala. R. Civ. P., which requires the assertion of affirmative defenses in an response to a preceding pleading. However, no Alabama statute requires proceedings before the Board to comply with the Alabama Rules of Civil Procedure, and we are thus left to apply the general proposition that strict rules of court procedure do not govern administrative proceedings. See, e.g., Simpson v. Van Ryzin, 289 Ala. 22, 30-31, 265 So.2d 569, 575-76 (1972); State ex rel. Steele v. Board of Educ. of Fairfield, 252 Ala. 254, 260, 40 So.2d 689, 695 (1949). We thus cannot conclude that Williams’s failure to “plead” the doctrine of res judi-cata, collateral estoppel, or laches during the administrative proceedings amounts to a waiver of those claimed defenses where, as here, they were adequately raised in the form of objections to evidence offered by the Board in the administrative hearing.

The Board also contends that the circuit court’s judgment fails to comply with § 41-22-20(k), Ala.Code 1975, in that, the Board says, that court reversed the Board’s order “on grounds other than those authorized by statute.” We disagree. As we have noted, the circuit court appears to have concluded that the Board’s actions deprived Williams of his nursing license without due process of law, which, if true, would amount at the least to a violation of state and federal constitutional provisions that guarantee due process. Reversal of an administrative order on that ground would be consistent with subsection (1) of § 41-22-20(k).

However, we reach a different conclusion than the circuit court with respect to the principal question raised by the Board’s appeal: whether the Board was prevented, either by the results of the previous investigations and hearings by the College involving the sexual-harassment allegations made against Williams or by the passage of time, from disciplining Williams on the basis of the conduct evidenced by those allegations and by the testimony at the hearing tending to establish the truth thereof. Regardless of whether the circuit court’s due-process holding is based upon Williams’s prior-adjudication argument, upon his remoteness argument, or upon both arguments, neither amounts to a legally sufficient basis to disturb the Board’s order.

We first consider the soundness of the circuit court’s “two bites at the apple” reasoning. It is well settled that the doctrine of res judicata — a term which encompasses within its scope both claim preclusion and issue preclusion (see Marshall County Concerned Citizens v. City of Guntersville, 598 So.2d 1331, 1332 (Ala.1992))—may properly be said to apply to a previous agency decision “only when that decision is made after a trial-type hearing, i.e., ‘when what the agency does resembles what a trial court does.’ ” Kid’s Stuff Learning Ctr., Inc. v. State Dep’t of Human Res., 660 So.2d 613, 617 (Ala.Civ.App.1995) (quoting II K. Davis & R. Pierce, Jr., Administrative Law Treatise § 13.3 at 250 (3d ed.1994)); accord, Restatement (Second) of Judgments § 83(2) (1982) (administrative adjudication is conclusive “only insofar as the proceeding resulting in the determination entailed the essential elements of adjudication,” such as notice and the right to present and rebut evidence). As we have noted, four separate sexual-harassment complaints were made to the College: one in 1991-92 by complainant J.B. regarding conduct allegedly occurring in 1991, one in 1994 by complainant C.S. regarding conduct allegedly occurring in 1994, one in 2000 by complainant V.P. regarding conduct allegedly occurring in 1999 and 2000, and one in 2001 by complainant K.S. regarding conduct allegedly occurring in 2000 directed toward K.S.’s then-wife, S.S. However, a “trial-type” proceeding did not ensue in response to any one of those complaints; at the most, investigative inquiries and determinations were made in each ease by College personnel (and, in KS.’s case, by the Department of Postsecondary Education). As to those complaints, then, there has not been shown any adjudication that would warrant the application of claim or issue preclusion principles under Kid’s Stuff.

However, the record also reflects that the president of the College, in her letter explaining the rationale for terminating Williams’s employment, cited the existence of previous sexual-harassment complaints against Williams. The employee-review panel considering Williams’s appeal from the termination did hold a trial-type hearing, and the judgment entered on certiora-ri review by the Mobile Circuit Court indicates that substantial evidence supported the panel’s decision; specifically, the reviewing court noted that “there was substantial evidence to rebut the charges of sexual harassment made against” Williams. It is thus arguable, then, that the decision of the employee-review panel, which was affirmed on certiorari review and on further appeal, does constitute a decision as to which claim or issue preclusion may potentially apply, and we will so assume.

However, to the extent that the circuit court’s judgment is based upon claim or issue preclusion arising from the employee-review panel’s decision, we must conclude that it is erroneous. It is well settled that for claim preclusion or issue preclusion to arise, there must be, at a minimum, substantial identity of the parties to the former adjudication. See generally Stewart v. Brinley, 902 So.2d 1, 9 (Ala.2004).

Contrary to the intimation of the circuit court, the Board is not “substantially identical” to the College, even though both are instrumentalities of the State of Alabama. The Board is a governmental agency organized in order to regulate the practice of professional nursing by persons throughout the state, whereas the College is an institution of higher learning established to educate students in various academic fields. The State’s undertaking of disciplinary action against Williams in such different capacities does not give rise to claim or issue preclusion in that “[a] party appearing in an action in one capacity, individual or representative, is not thereby bound by or entitled to the benefits of the rules of res judicata in a subsequent action in which he appears in another capacity.” Restatement (Second) of Judgments § 36(2) (1982). Comment f to that section of the Restatement is particularly instructive here:

“In some circumstances, a prior determination that is binding on one agency and its officials may not be binding on another agency and its officials. The problem is analogous to that in determining the capacity in which the underlying transactions were conducted where private parties are concerned. If the second action involves an agency or official whose functions and responsibilities are so distinct from those of the agency or official in the first action that applying preclusion would interfere with the proper allocation of authority between them, the earlier judgment should not be given preclusive effect in the second action.”

Restatement (Second) of Judgments § 36 comment f (emphasis added).

The conclusion we draw here is by no means unique in American jurisprudence. In Newberry v. Florida Department of Law Enforcement, Criminal Justice Standards & Training Commission, 585 So.2d 500 (Fla.Dist.Ct.App.1991), a law-enforcement officer who was required to be certified by a state agency as a condition of her employment with a county school board was terminated from her employment by the school board. Although the officer’s employment was later reinstated by a hearing officer, the facts giving rise to the termination action were reported to the state agency, which undertook proceedings to revoke the officer’s law-enforcement certification. The appellate court agreed with the state agency that neither claim preclusion nor issue preclusion barred the agency from revoking the officer’s law-enforcement certification, holding that “ ‘the doctrines of res judicata or estoppel by judgment are not applicable under the facts of the case where two separate and distinct governmental units independently considered similar factual allegation^] but for different purposes.’ ” 585 So.2d at 501 (quoting Todd v. Carroll, 347 So.2d 618, 619 (Fla.Dist.Ct.App.1977)); accord, Lu-sardi Constr. Co. v. Aubry, 1 Cal.4th 976, 995, 824 P.2d 643, 655, 4 Cal.Rptr.2d 837, 849 (1992) (“The acts of one public agency will bind another public agency only when there is privity, or an identity of interests between the agencies.”), and Lamborn v. Workmen’s Compensation Appeal Bd., 656 A.2d 593, 596 (Pa.Commw.Ct.1995) (“for collateral estoppel to apply between administrative agencies, there must be a showing that the policies and goals underlying the matter at issue are the same in both proceedings”).

Having concluded that the Board is not bound by the acts of the employee-review panel or by the administrative investigations undertaken on the part of the College or the Department of Postsecondary Education, we next consider whether the circuit court’s judgment was correct because of the lapse of time between the first accusation made against Williams and the Board’s institution of proceedings. There is no applicable statute placing a time limitation upon Board disciplinary proceedings, and “[i]n the absence of specific legislative authority, civil or criminal statutes of limitation are inapplicable to administrative proceedings.” Chafian v. Alabama Bd. of Chiropractic Exam’rs, 647 So.2d 759, 762 (Ala.Civ.App. 1994). Under Chafian, “[w]here there is no statutory time limitation applicable to the administrative proceeding, the issue of whether the action should be barred by time depends on the question of laches”; however, “[t]he party asserting laches bears the burden of proving that the delay was unreasonable and that prejudice resulted from the delay.” Id. Williams has made no showing that he has been prejudiced by the Board’s institution of disciplinary proceedings based upon such traditional elements of prejudice as “unavailability of witnesses, changed personnel, and the loss of pertinent records” (see Ex parte Grubbs, 542 So.2d 927, 929 (Ala.1989)); indeed, Williams testified at some length before the Board concerning many of the sexual-harassment allegations that had been lodged against him and presented testimony of several witnesses, both instructors and former students, that was generally favorable to him. We thus cannot affirm the circuit court’s judgment to the extent that it is based upon remoteness.

Further, we reject Williams’s contention that the circuit court’s judgment of reversal is due to be affirmed because, he says, the Board’s order is not supported by substantial evidence. To the contrary, a review of the evidence adduced during the Board hearing reveals that substantial evidence was adduced that Williams had engaged in inappropriate or unprofessional conduct. For example, J.B., the former student at the College who reported having been sexually harassed by Williams in 1991, testified at the Board hearing that she had taken courses from Williams in Medical Surgical Nursing and Critical Care Nursing during that year. According to J.B.’s testimony, during a visit by Williams to her mother’s home that was ostensibly for the purpose of providing academic assistance, Williams told J.B. that “if he did something for [her], [she] would have to do something for him”; he then made an attempt to kiss J.B., which she rebuffed by turning her head. J.B. also testified that on another occasion, when she had asked Williams how he could help her raise her grade in the course she was taking from him during that academic term, he had responded by writing the word “intimacy” on a piece of paper and had given it to J.B., a proposition J.B. refused.

The record further reveals that during Williams’s testimony on direct examination during the Board hearing, the termination letter sent to Williams by the president of the College was admitted into evidence. Because that letter described Williams’s personnel file as containing “a number of’ student complaints, counsel for the Board asked Williams whether he had been investigated on other occasions regarding student complaints of a sexual nature, at which time Williams admitted that in addition to J.B., two other students, Y.P. and C.S., had made such complaints. The complaint letters from V.P. and C.S. were then admitted into evidence despite hearsay objections.

To be sure, Williams disputed the veracity of J.B., V.P., and C.S., and adduced testimony from other students and from College personnel tending to prove that he would not have sexually harassed students. However, our review, just like that of the circuit court, is limited to ascertaining whether the Board’s order is supported by “substantial evidence,” i.e., “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); accord, Ex parte Williamson, 907 So.2d 407, 414-15 (Ala.2004) (applying West definition in administrative setting). In no event is a reviewing court “authorized to reweigh the evidence or to substitute its decisions as to the weight and credibility of the evidence for those of the agency.” Ex parte Williamson, 907 So.2d at 416-17. We conclude that the Board’s order disciplining Williams is supported by substantial evidence.

Williams also seeks affirmance of the circuit court’s judgment on the basis that the Board’s order, he says, improperly referred to the finding, contained in the determination of the employee-review panel that overturned the termination of Williams’s employment, that Williams had confronted a female coworker “in a manner unbecoming to a faculty member.” Williams contends that the Board’s reference to that finding demonstrates that the Board “improperly relied upon a matter beyond the scope of the charges” set forth in the “Statement of Charges and Notice of Hearing.” While the Board’s statement of charges did not refer to that finding, evidence of that finding, in the form of the review panel’s order itself, was submitted by Williams himself during the Board’s hearing, and no conditions were placed upon its offer or acceptance into the evi-dentiary record. It is well settled that “ ‘[a] party may not predicate an argument for reversal on “invited error,” that is, “error into which he has led or lulled” ’ ” the pertinent adjudicative body. Wood v. State Pers. Bd., 705 So.2d 413, 422 (Ala.Civ.App.1997) (quoting Atkins v. Lee, 603 So.2d 937, 945 (Ala.1992), quoting in turn Dixie Highway Express, Inc. v. Southern Ry., 286 Ala. 646, 651, 244 So.2d 591, 595 (1971)). Williams, having introduced the employee-review panel’s determination into evidence for the Board to consider, cannot now be heard to complain that the Board did consider that evidence in rendering its disciplinary order.

Having determined that the Board’s order was properly entered, we reverse the circuit court’s judgment, and we remand the cause for that court to enter a judgment affirming the Board’s order.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

      . Administrative agencies, such as the Board, "are not restricted to a consideration of evidence which would be legal in a court of law and may consider evidence of probative force even though it may be hearsay or otherwise illegal.” Estes v. Board of Funeral Serv., 409 So.2d 803, 804 (Ala.1982); see also Ala.Code 1975, § 41-22-13(1) (allowing admission in administrative hearings of evidence "of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs,” even if such evidence would be inadmissible in judicial proceedings).