text:
    Felicia COFFEY v. Carolyn Sue MOORE and Metropolitan Property and Casualty Insurance Company.
    1031268.
    Supreme Court of Alabama.
    July 14, 2006.

      Michael C. Bradley of Pittman, Hooks, Dutton, Kirby & Heliums, Birmingham, for appellant.
    Robert H. Sprain, Jr., of Sadler Sullivan, P.C., Birmingham, for appellee Carolyn Sue Moore.
    Ralph D. Gaines III and Julie D. Pearce of Gaines, Wolter & Kinney, P.C., Birmingham, for appellee Metropolitan Property and Casualty Insurance Company.
   PARKER, Justice.

Felicia Coffey appeals from summary judgments in favor of Carolyn Sue Moore and Metropolitan Property and Casualty Insurance Company (“Metropolitan”). The primary issue presented by this appeal is whether the owner, or in this case a bailee, of a vehicle may become a guest under Alabama’s guest statute, § 32-1-2, Ala.Code 1975, during a road trip in which the owner/bailee and a friend share in the driving of a rented vehicle. We hold that the owner/bailee of the vehicle is not the guest of the friend/driver while riding in his own vehicle. Consequently, we reverse and remand.

I. Case History

In November 2000, Felicia Coffey rented an automobile from a national rental-car agency in Memphis, Tennessee, to drive to Tallahassee, Florida, to visit her daughter. Coffey asked her friend Carolyn Sue Moore to accompany her on the trip. Moore accepted the invitation and volunteered to drive if Coffey became tired. Coffey and Moore each paid all of their own personal expenses on the trip. Moore was not listed as a potential driver on the rental agreement Coffey executed, nor did she contribute to any of the expenses involved in the operation of the automobile.

On the return trip, Moore was driving while Coffey was asleep in the backseat. Moore attempted to change lanes and lost control of the vehicle when it swung wide and the driver’s side rear wheel left the paved roadway. When the rear wheel again made contact with the pavement, the vehicle spun, rolled over about three times, and came to rest straddling a ditch.

On December 2, 2002, Coffey sued Moore, seeking damages for injuries she sustained as a result of the accident; she also sued Metropolitan seeking uninsured/underinsured-motorist benefits under an automobile liability insurance policy she held with Metropolitan. Moore and Metropolitan filed motions for a summary judgment. In support of her motion, Moore argued that Coffey was a “guest” under Alabama’s guest statute, § 32-1-2, Ala.Code 1975, and that, consequently, she could not recover against Moore absent willful or wanton misconduct on Moore’s part. Because the parties had stipulated that Moore was not liable for willful or wanton misconduct, Moore argued that she could not be liable to Coffey, who, she says, was a guest in the vehicle. For its part, Metropolitan argued that the bar against Coffey under the guest statute also barred any recovery under the uninsured/underinsured-motorist provisions of Coffey’s automobile insurance policy.

The trial court ruled “[t]hat the claims of [Coffey] are barred under Ala.Code [1975,] § 82-1-2, the Alabama Guest Statute, and that there are no genuine issues of material fact and defendants are entitled to judgment as a matter of law.” Coffey appealed, arguing that the trial court erred in entering summary judgments for Moore and Metropolitan.

II. Standard of Revieio

“We review the trial court’s entry of a summary judgment de novo.” Hollingsworth v. City of Rainbow City, 826 So.2d 787, 789 (Ala.2001). In reviewing a motion for a summary judgment, we determine whether there is a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P; Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); and Wright v. Wright, 654 So.2d 542 (Ala.1995). When the movant makes a prima facie showing that no genuine issue of material fact exists, the burden then shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992). Evidence is considered “substantial” if it is 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). Further, the evidence is viewed in the light most favorable to the nonmoving party. Hobson v. American Cast Iron Pipe, 690 So.2d 341 (Ala.1997).

III. Analysis

The relevant portion of the guest statute reads:

“The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.”

§ 32-1-2, Ala.Code 1975.

This Court discussed the purpose of the guest statute, enacted in 1935, and the “generous” host as the intended beneficiary in Blair v. Greene, 247 Ala. 104, 109, 22 So.2d 834, 837 (1945):

“The situation that [the guest] statute was apparently designed to prevent is well known. As the use of automobiles became almost universal, many eases arose where generous drivers, having offered rides to guests, later found themselves defendants in cases that often turned upon close questions of negligence. Undoubtedly the legislature in adopting this act reflected a certain natural feeling as to the injustice of such a situation. The terms of the statute should be construed with their intent and purpose in view, and the purpose and object that the legislature had in mind sometimes throws light upon the meaning of the language used.”

Only a host can offer a ride to a guest, so the intended beneficiary of the statute is clearly the host, and not the guest.

Because the statute does not define the term “guest,” we turn to caselaw for a definition:

“ ‘ “The general rule is that if the transportation of a rider confers a benefit only on the person to whom the ride is given, and no benefits other than such as are incidental to hospitality, goodwill or the like, on the person furnishing the transportation, the rider is a guest; but if his carriage tends to promote the mutual interest of both himself and [the] driver for their common benefit, thus creating a joint business relationship between the motorist and his rider, or where the rider accompanies the driver at the instance of the latter for the purpose of having the rider render a benefit or service to the driver on a trip which is primarily for the attainment of some objective of the driver, the rider is a passenger and not a guest.” ’ ”

Cash v. Caldwell, 603 So.2d 1001, 1003 (Ala.1992)(quoting Wagnon v. Patterson, 260 Ala. 297, 303, 70 So.2d 244, 249 (1954), quoting in turn Hasbrook v. Wingate, 152 Ohio St. 50, 56-57, 87 N.E.2d 87, 91 (1949)).

Moore and Metropolitan assert that Coffey became a guest for the purposes of the application of the guest statute either when she allowed Moore to drive or when she fell asleep in the backseat. They argue that because Coffey received no payment, conferred or received no benefit, and was on a purely social trip with Carolyn Moore, Coffey is properly classified as a “guest” under Alabama law and, as a guest, is precluded from recovering damages against Moore and Metropolitan. They also argue that public policy dictates that Moore and Metropolitan should not be held liable to Coffey for damages. Moore and Metropolitan emphasize that the wording of the guest statute designates the owner, the operator, or the person responsible for the operation of the vehicle as immune from liability on civil claims alleging torts based in negligence; they assert that such wording indicates that the status of owner and guest may change during the course of a road trip.

This Court has not directly addressed the issue whether, under circumstances like those before us, the status of an owner may change during a road trip so that the owner becomes the guest. The most factually similar case is Richards v. Eaves, 273 Ala. 120, 135 So.2d 384 (1961). In that case, this Court was unwilling to hold, as a matter of law, that a deceased passenger had been a guest, within the meaning of the guest statute, of the driver, who was operating a vehicle that had been loaned to the decedent by the decedent’s father. The Richards Court cited cases from other jurisdictions as authority for its unwillingness to treat the deceased passenger as a guest. A case that is more directly analogous to this case is the decision by the Supreme Court of Georgia in Crider v. Sneider, 243 Ga. 642, 256 S.E.2d 335 (1979):

“[T]he question presented is whether the owner of an automobile becomes the guest passenger by reason of the fact that another occupant in the automobile assumes the driving.
“Other courts have addressed this question and, ‘the majority of the decided cases hold that the owner of an automobile is not the guest of the driver while riding in his own car. Gledhill v. Connecticut Co., 121 Conn. 102, 183 A. 379 (1936); Lorch v. Eglin, 369 Pa. 314, 85 A.2d 841 (1952); Ahlgren v. Ahlgren, 152 Cal.App.2d 723, 313 P.2d 88 (1957); Naphtali v. Lafazan, 7 Misc.2d 1057, 165 N.Y.S.2d 395 (1957)[,] affirmed 8 A.D.2d 22, 186 N.Y.S.2d 1010; Leonard v. Helms, 269 F.2d 48 (C.A.4, 1959); Parker v. Leavitt, 201 Va. 919, 114 S.E.2d 732 (1960); Henline v. Wilson, 111 Ohio App. 515, 174 N.E.2d 122 (1960)(motion to certify to Supreme Court of Ohio overruled); Peterson v. Winn, 84 Idaho 523, 373 P.2d 925 (1962). See Annotation, 65 A.L.R.2d 312....’”

243 Ga. at 646, 256 S.E.2d at 338.

An American Law Reports annotation under the title “Automobile: Guest Statute,” states:

“Status of host vehicle owner, or, as in the instant case, status of bailee of vehicle owner, is not changed by reason of the fact that he permits his guest passenger to drive. Degenstein v. Ehrman, 145 N.W.2d 493 (N.D.1966)(eiting annotation).
“Status of host under guest statute is not changed by reason of fact that he permits his guest to do part of the driving, and mere fact that plaintiff fell asleep in his vehicle while defendant was driving does not of itself establish as a matter of law that plaintiff thereby became a guest in his own car or that his status was thereby changed from that of host to that of guest. Froemke v. Hauff, 147 N.W.2d 390 (N.D.1966).”

Annotation, Automobile: Guest Statute, 65 A.L.R.2d 312 (2004) (Later Case Service).

We find the reasoning in Crider and in American Law Reports to be persuasive and the arguments of Moore and Metropolitan to be without merit. Moore and Metropolitan rely on the assumption that the status of a guest may change from a guest into an “owner, operator or person responsible for the operation of a motor vehicle” under the statute merely by virtue of the guest’s taking the wheel to spell the driver. Similarly, they assume that an “owner” may become a “guest” by virtue of falling asleep in the backseat of the car while another is driving. Although this approach of changeable status may seem helpful to assign liability in certain circumstances, in other circumstances it could make a consistent standard for liability impossible. For example, it could be impossible to pinpoint just when a change in status occurred, and thus liability attached, such as when an accident occurs while the vehicle was parked and the two parties were changing places. Consequently, under the circumstances of this case, we hold that Moore’s classification as a guest under Alabama’s guest statute was determined at the inception of the journey, and the simple act of changing drivers did nothing to affect or alter this classification.

IV. Conclusion

Under Alabama’s guest statute, Moore was the guest and Coffey the host. Consequently, the trial court erred in entering a summary judgment for Moore, based on the erroneous holding that Coffey’s status had changed from host to guest and that such change in status had thereby conferred immunity on Moore. Furthermore, because a summary judgment was entered for Metropolitan based on the theory that Moore’s immunity under the guest statute extended to Metropolitan as Coffey’s insurer, the trial court also erred in entering a summary judgment for Metropolitan. We therefore reverse the summary judgments and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . For the purposes of the facts of this case, a bailee, a person who has rented a vehicle, and an owner are considered to be the same.

      . The appellant’s name is spelled variously as “Coffey,” “Coffee,” and "Collee” in the briefs to this Court.


source: Caselaw Access Project

author: MURDOCK, Judge.

license: Public Domain

text:
    Rick E. EARL v. STATE PERSONNEL BOARD et al.
    2030508.
    Court of Civil Appeals of Alabama.
    April 14, 2006.
    Certiorari Denied July 14, 2006 Alabama Supreme Court 1051047.
    Carroll J. Ogden, Mobile, for appellant.
    Alice Ann Byrne, State Personnel Department, Montgomery, for appellee.
   On Application for Rehearing

MURDOCK, Judge.

The no-opinion affirmance of this court issued on June 24, 2005, is withdrawn, and the following is substituted therefor.

Rick E. Earl appeals from a judgment of the Mobile Circuit Court (1) affirming an order of the State Personnel Board (“the Personnel Board”) that upheld Earl’s dismissal “for cause” by the Department of Youth Services (“DYS”) and (2) dismissing claims that Earl filed (in relation to his administrative appeal) against the Personnel Board; Joe N. Dickson, the Personnel Board Chairman; Rick Meadows, the Administrative Law Judge who heard Earl’s administrative appeal; Thomas G. Flowers, the State Personnel Director; and the following members of the Personnel Board: Harry McMillan, John McMillan, J. Ray Warren, and Howard W. Powell. The individual defendants were all named as defendants in both their individual and official capacities. The claims against the various individual defendants are premised on Earl’s contention that he was wrongfully dismissed and revolve around alleged violations of Earl’s federal and state constitutional rights in conjunction with his dismissal.

Earl is a former merit-system employee of DYS. Earl began working for DYS in 1988; he was assigned to work in Mobile as a “Youth Services Aide.” In August 1996, DYS informed Earl by memorandum that he was being transferred to Thomasville to work in a youth “boot camp” facility; DYS’s Thomasville facility is approximately 100 miles from Mobile. Specifically, the memorandum stated:

“This is to inform you that because you are needed at the Thomasville facility, it is necessary for me to transfer you there from your present assignment with the CPS [Community Placement and Supervision] program effective September 14, 1996. Your first work day there will be Monday September 16,1996....
“This action is necessitated by the restructuring of the CPS program and by the fact that Thomasville has a YS Aide vacancy.
“I appreciate your willingness to serve the department where you are needed. Moreover, I appreciate the confidence of knowing that you will do a good job at Thomasville just as you have done at CPS. If you decide you want to transfer to another location next time a vacancy occurs, you may submit a written request to do so. I would be happy to consider such a request any time we have a vacancy.”

Earl objected to the transfer for transportation and personal reasons. Earl also argued that the transfer was a de facto demotion or a constructive discharge from employment. He requested that DYS reconsider the transfer.

DYS considered Earl’s objections, but it did not alter its decision. Instead, at Earl’s request, DYS twice extended Earl’s reporting date to Thomasville, and it continued to offer to “work with [Earl] to accommodate the possibility of commuting with other employees who work at Thom-asville yet live in Mobile.”

Thereafter, Earl continued to object to his transfer, corresponding with DYS both personally and through his attorney. However, DYS insisted that Earl report to work in Thomasville on October 7, 1996, the first workday after the last extension that DYS had granted Earl.

Earl did not report to work in Thomas-ville on October 7, 1996, and he did not report the reason for his absence to his Thomasville supervisor. DYS informed Earl via facsimile letter to Earl’s attorney dated October 7, 1996, that Earl had failed to report to work as ordered and that he must report to work as ordered on the following day. Earl’s attorney responded by letter, stating that Earl could not report to work because of his hardships, that DYS was attempting to wrongfully dismiss Earl, and that DYS should not consider Earl’s absence to be “unreported.” The same scenario occurred on each of the following two days, i.e., October 8 and October 9. On each day Earl failed to report, DYS forwarded a letter to Earl, through his attorney, demanding that he report for work; Earl’s attorney responded by letters to DYS stating that Earl could not report to work as ordered.

After Earl refused to comply with DYS’s order to report to work for three consecutive days, James Dupree, the Director of DYS, sent Earl a letter dated October 10, 1996, that states:

“You have failed to report to work for more than three consecutive days despite my letters (through your attorney) instructing you to report to work. Therefore, I am interpreting your action (or lack of action) as job abandonment tantamount to resignation, and your resignation is hereby accepted effective at the close of business on the last day of your approved leave, which was [October 4,] 1996.”

Dupree forwarded a notice to the State Personnel Department (referred to as a “Form 5”) recommending that it consider Earl to have resigned based on “job abandonment tantamount to resignation”; the State Personnel Director approved Du-pree’s recommendation. Earl’s attorney sent a letter to DYS objecting to DYS’s position and contending that Earl had not resigned but that he had been wrongfully dismissed. Earl did not appeal DYS’s decision to the Personnel Board.

In 1998, however, Earl filed a complaint in the federal District Court for the Southern District of Alabama against DYS; Walter Wood, Jr., the “current Executive Director of DYS”; Dupree, the executive director of DYS at the time of Earl’s alleged resignation; and Jan Autery, the former program administrator of the Community Placement and Supervision program in Mobile. In part, Earl asserted claims against DYS, Dupree, and Autery under 42 U.S.C. § 1983, and he alleged that DYS, Dupree, and Autery, both in their official and individual capacities, had violated his right to both procedural and substantive due process under the Alabama Constitution and the United States Constitution. The claims involved numerous matters that are not pertinent to the present case, but they also included claims that DYS failed to follow appropriate pre-termination and posttermination procedures in regard to Earl’s alleged resignation. Earl requested monetary damages from DYS, Dupree, and Autery. Earl also requested injunctive relief, as hereinafter discussed, in regard to his claims against Wood, in his official capacity.

In September 2000, the federal district court entered an order dismissing all of Earl’s claims against DYS and all of Earl’s claims against Dupree and Autery in their official capacities. The injunctive-relief claim against Wood remained pending, as did several claims against Dupree and Au-tery in their individual capacities.

Dupree and Autery filed a motion for a summary judgment as to the remaining claims that Earl had asserted against them. In an exhaustive October 2001 order, the federal district court concluded that the summary-judgment motion as to

“[Earl’s] federal procedural due process claim against defendant Dupree in his individual capacity based on failure to provide a pretermination hearing is DENIED. As to all remaining state and federal claims for monetary damages asserted against defendants Dupree and Autery in their individual capacities, defendants’ motion for summary judgment is GRANTED.”

Earl’s claim against Dupree as to which summary judgment was denied involved allegations that Dupree had violated Earl’s federal procedural-due-process rights by failing to provide Earl with a pretermination hearing in conjunction with the dispute between Earl and DYS concerning whether his alleged “job abandonment” constituted a resignation. As to that claim, the federal district court concluded that the requirements of Ala. Admin. Code (State Pers. Bd.), Rule 670-X-19-.01(l)(b)ll., which defines “job abandonment” as “three days of unexcused, unreported absence,” had not been satisfied because the letters from Earl’s counsel to DYS expressly stated that Earl’s absences should not be considered to be “unreported.” The federal district court stated:

“Because the evidence is undisputed that the absences were not unreported, the Court finds that they could not have constituted job abandonment/resignation and that [Earl’s] separation from, his employment could only have been a dismissal. Given that [Earl’s] separation from his employment was a dismissal, the Court must consider whether [Earl] had a property interest in his continued employment and whether he was deprived of that right without due process of law.”

(Emphasis added.) The federal district court then concluded that “the law extant at the time of [Earl’s] dismissal in 1996 required that [Earl], a classified Alabama Merit System employee, be given a preter-mination hearing before being dismissed” and that Dupree was not entitled to “qualified immunity” concerning that claim even though he was acting within his discretionary authority when he terminated Earl’s employment.

After the entry of the October 2001 order, Earl filed a motion for a partial summary judgment as to his remaining claim against Dupree and his claim for injunctive relief against Wood. The federal district court denied the motion in November 2001. Earl then filed a “Motion for Reconsideration.” After reconsidering Earl’s motion for a partial summary judgment, the federal district court entered an order stating that Earl was entitled to a summary judgment in regard to the liability aspect of his monetary-damages claim against Dupree, in his individual capacity, and his injunc-tive-relief claim against Walter Wood, Jr., in his official capacity, based on their undisputed “failure to provide [Earl] a pre-termination hearing.” The court stated, “[t]he only issue remaining for trial is damages.”

Thereafter, the federal district court conducted an ore tenus proceeding in December 2001 regarding the relief to be granted as to the two remaining claims in Earl’s action. At trial, Dupree and Wood filed a motion for a judgment as a matter of law. In January 2002, the federal district court entered an order as to Dupree and Wood’s motion, stating that Earl was entitled to “back pay damages in the amount of $794.80” as to Dupree and to “injunctive relief in the form of a hearing before the State Personnel Board” as to Wood, “in his official capacity as the current Executive Director of the DYS.” The federal district court stated:

“Although [Earl] did not avail himself of the remedies provided under the Alabama Merit System Act when he was discharged, this Court agrees with the court’s holding in Wyatt v. Bronner, 500 F.Supp. 817, 821-22 (M.D.Ala.1980), that [Earl] was nevertheless entitled to a pretermination hearing under the Fourteenth Amendment and, thus, since he was denied that right, he is now entitled to a due process hearing before the State Personnel Board to determine whether he was discharged ‘for canse.’
“Accordingly, as in Wyatt, the Court hereby ORDERS that [Earl] be given a hearing before the State Personnel Board relative to reinstatement within sixty days of this Court’s order. [Earl] must be furnished with specific charges at least ten days prior to the proposed hearing. If on such hearing, it is determined that there was not good cause for [Earl’s] discharge, then [Earl] would be entitled to reinstatement and back pay to the date of reinstatement. If on such hearing, it is determined that there was good cause for discharging [Earl], then [Earl] would not be entitled to reinstatement, and back pay would be limited to the ten-day period already awarded by this Court. The Court specifically retains jurisdiction to enforce this order.”

Contemporaneously with the entiy of the January 2002 order regarding Dupree and Wood’s motion for a judgment as a matter of law, the federal district court entered a “Final Judgment” that stated, in part: “The Court further renders judgment in favor of [Earl] against defendant Walter Wood, Jr., current Executive Director of DYS, for injunctive relief in the form of a hearing before the State Personnel Board, as set forth in the separate order entered this date.”

Earl, Dupree, and Wood filed post-judgment motions, and Earl filed a motion for clarification of the judgment. In February 2002 the federal district court denied the motions.

Pursuant to the federal district court’s judgment, DYS informed the Personnel Board that a hearing must be scheduled in regard to Earl’s dismissal. The Personnel Board assigned the matter to an administrative law judge (“ALJ”), who served as a hearing officer for the Personnel Board. See Personnel Bd. of Alabama v. King, 456 So.2d 80, 81 (Ala.Civ.App.1984). On March 18, 2002, DYS sent Earl a letter stating:

“This letter is formal notice that you were dismissed from your employment with [DYS] on October 10, 1996 for cause and sufficient reason. You were repeatedly ordered to report to work and failed to do so. You were instructed to report to work at the Thomasville facility on October 7, 1996 but failed to report on that date. By letter dated October 7, 199[6] you were instructed to report to work on October 8, 1996 but failed to report to work on that date. By letter dated October 8, 1996, you were again instructed to report to work on October 9,1996 but failed to report to work on that date. Your failure to report to work and your disregard and failure to comply with instructions from [DYS] are the cause and reason for your dismissal.”

Earl responded to the March 2002 letter by contending that it did not provide the specific “charges” against him, that the only “charge” that had been mentioned in the October 10, 1996, letter was “job abandonment,” and that no new “charge” could be asserted against him. He also argued that if the charge against him was job abandonment, the federal district court had already ruled in his favor on that issue.

In April 2002, DYS responded to Earl’s allegations via a letter to the ALJ, which was copied to Earl. The April 2002 letter stated:

“Pursuant to the [federal district court’s judgment], [DYS] has provided Earl written notice of the cause for his discharge from [DYS]. See Ala.Code 1975, § 36-26-27 (‘An appointing authority may dismiss a classified employee whenever he considers the good of the service will be served thereby, for reasons which shall be stated in writing, [and] served on the affected employee ....’); Ala. Admin. Code § 670-X-18.01(l) (same). The reason and cause for Earl’s dismissal are his refusal and failure to report to work. See Ala. Admin. Code § 670-X-19-.01(l)(b) (‘More serious violations ... may result in suspension or discharge on the first offense, considering work record and length of service.’); Ala. Admin. Code § 670-X-19-.01(2) (listing illustrative and nonexclusive reasons for dismissal and noting ‘[t]he listing of violations above is not meant to be all inclusive and does not imply that discipline may not be imposed for other sufficient reasons.’). [Earl’s] suggestion that [the March 2002] letter did not provide a charge is plainly and factually incorrect.”

Earl filed a motion for a more definite statement as to the “charges” against him. The ALJ denied the motion, stating that the Personnel Board would comply with the federal district court’s judgment, that DYS’s March 2002 letter informed Earl of the reasons for his dismissal in October 1996, and that the letter was in compliance with the terms of the judgment.

The day before the scheduled hearing before the ALJ, Earl filed a motion in the federal district court requesting that that court enforce its judgment as to the “charges” proffered against him and that it not allow DYS to expand the “charges” against him. Earl also filed an emergency motion in the administrative proceeding before the ALJ requesting a stay of the administrative hearing pending the federal district court’s ruling on his motion to enforce the January 2002 judgment. The ALJ denied Earl’s motion for a stay.

In June 2002, the ALJ conducted an ore tenus proceeding regarding whether DYS had good cause to discharge Earl based on the charge that Earl had repeatedly failed to report to work as ordered in October 1996.

On July 23, 2002, the federal district court entered an order stating that it had considered Earl’s motion regarding the enforcement of its judgment, and particularly “whether the notice of specific charges provided to [Earl] prior to the hearing before an [ALJ] complied with the Court’s order granting injunctive relief.” The federal district court concluded, after reviewing the contents of the March 2002 letter to Earl from DYS: “The Court ordered the defendants to give [Earl] a due process hearing after providing him with notice of the specific charges against him, and it appears that the defendants have complied with that order.... [Earl’s] claim is without merit, and [he] is not entitled to the relief he seeks.” (Emphasis added.) See also note 8, supra.

On July 30, 2002, the ALJ entered a 21-page order containing both findings of fact and conclusions of law. In summary, the ALJ determined that Dupree had made a management decision to transfer Earl, that the transfer decision was for a good business reason, that Earl never intended to report to work in Thomasville, and that Earl had refused to report to work as instructed, despite his having been given an extended period of time to make arrangements regarding the transfer and despite DYS’s effort to assist Earl in regard to transportation issues, if necessary. The ALJ recommended that the Personnel Board uphold Earl’s dismissal.

Earl filed a lengthy exception to the ALJ’s findings, and he requested that he be allowed to present oral argument to the Personnel Board. In September 2002, after reviewing Earl’s exceptions and after hearing oral arguments from Earl, the Personnel Board adopted the ALJ’s findings and it concluded that DYS’s decision to dismiss Earl was supported by the evidence presented to the ALJ. The Personnel Board entered an order upholding Earl’s dismissal.

Earl appealed to the Mobile Circuit Court from the Personnel Board’s decision. Earl also filed a “Petition and Complaint” in which he asserted “claims” “concerning specific violations of law and various constitutional rights and protections” against the Personnel Board and the various individual defendants named in the second paragraph of this opinion.

In July 2003, the circuit court entered an order affirming the decision of the Personnel Board. The order stated, in part:

“After review and consideration of the record of the State Personnel Board Hearing and other submissions the Court finds that [Earl’s] substantial rights have not been prejudiced in any of the enumerated ways or otherwise [i.e., any of the ways listed in Ala.Code 1975, § 41-22-20(k)(l) through (k)(7) ]. The agency action is not clearly erroneous, nor is it unreasonable, arbitrary or capricious.
“[Earl] contends that his dismissal is prohibited by [Ala.Code 1975,] § 36-26-29, which forbids bringing ‘charges for dismissal or disciplinary action’ after the expiration of three years from the date of ‘such cause’ for the dismissal or action. In the first place, ‘such cause’ has always been the failure of [Earl] to report for work in Thomasville. That failure was originally termed ‘job abandonment.’ After the Federal Court decision, the same ‘cause’ was assigned as grounds for dismissal. Second, the state could hardly initiate new proceedings against [Earl] for the same ‘cause’ while [Earl’s] Federal Court action pended.
“The action of the State Personnel Board is affirmed and the Petition and Complaint is dismissed.”

Earl filed a postjudgment motion; the circuit court denied that motion. Earl appealed to the Alabama Supreme Court; the appeal was transferred to this court on jurisdictional grounds.

On appeal, Earl makes arguments that are, in essence, attempts to relitigate numerous matters that he presented to the federal district court and on which he received an adverse ruling, most notably whether the Personnel Board was restricted to considering only “job abandonment” as a cause for Earl’s dismissal at the Personnel Board hearing. Thus, Earl continues to argue that DYS presented a new “charge” against him at the Personnel Board hearing in violation of Ala. Code 1975, § 86-26-29 (“[n]o charges for dismissal or disciplinary action shall be preferred against any employee in the classified service of the state after the expiration of three years from the date such cause became known to the authority having the power to dismiss or discipline such employee”).

Notwithstanding Earl’s contentions, as is clear from the foregoing discussion and the rulings of the federal district court, the due-process hearing before the Personnel Board was conducted in a manner contemplated by the federal district court’s judgment. The circuit court correctly concluded that the substance of the “charges” against Earl had not changed since October 1996 and that it would be nonsensical to expect DYS to purport to terminate Earl’s employment for cause after it had deemed him to have resigned and, more importantly, while the issue whether he had in fact resigned was being litigated in federal court.

The Alabama Administrative Procedure Act, Ala.Code 1975, § 41-22-1 et seq. (“the AAPA”), states:

“The [circuit] court may reverse or modify the decision or grant other appropriate relief from the agency action, equitable or legal, including declaratory relief, if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) In violation of any pertinent agency rule;
“(4) Made upon unlawful procedure;
“(5) Affected by other error of law;
“(6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
“(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.”

Ala.Code 1975, § 41-22-20(k).

“[Dismissal by an appointing authority ... is reviewable by the personnel board only to determine if the reasons stated for the dismissal are sustained by the evidence presented at the hearing.” Johnston v. State Pers. Bd., 447 So.2d 752, 755 (Ala.Civ.App.1983). Also, based on the applicable provisions of the AAPA, both this court and the circuit court must take the administrative agency’s order “as pri-ma facie just and reasonable” and neither this court nor the circuit court may “substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.” Ala.Code 1975, § 41-22-20(k); see also State Dep’t of Human Res. v. Gibert, 681 So.2d 560, 562 (Ala.Civ.App.1995). This court reviews a trial court’s judgment regarding the decision of an administrative agency “without any presumption of its correctness, since [the trial] court was in no better position to review the [agency’s decision] than” this court is. State Health Planning & Res. Dev. Admin. v. Rivendell of Alabama, Inc., 469 So.2d 613, 614 (Ala.Civ.App.1985).

The AAPA requires that in a contested case the written notice of hearing include “[a] short and plain statement of the matters asserted.” Ala.Code 1975, § 41 — 22—12(b) (4) . This court has stated that charges in an administrative proceeding need not “ ‘be drawn with the formality and exactness required in a court proceeding,’ ” Kid’s Stuff Learning Ctr., Inc. v. State Dep’t of Human Res., 660 So.2d 613, 621 (Ala.Civ.App.1995) (quoting Goolsby v. Green, 431 So.2d 955, 959 (Ala.1983)), and that we will not reverse an administrative decision on the basis of inadequate notice when the complaining party received adequate notice of the charges against him or her before the hearing. See 660 So.2d at 621; see also Chafian v. Alabama Bd. of Chiropractic Exam’rs, 647 So.2d 759, 762 (Ala.Civ.App.1994).

“The law does not require that the charges filed before administrative boards be drawn with the same refinements as pleadings in court. All that is required is that the charges given be sufficient to warrant dismissal and specific enough to apprise the employee of the allegations against him.”

Johnston, 447 So.2d at 756.

Like the plaintiff in Johnston, Earl is under the mistaken impression that due process requires that the “charges” against him refer to a limited list of items in the pertinent regulations. The pertinent regulation in the current case, Ala. Admin. Code (State Pers. Bd.), Rule 670-X-19-.01, is a nonexhaustive list of “violations” for which dismissal might issue; it is “not meant to be all inclusive and does not imply that discipline may not be imposed for other sufficient reasons.” Ala. Admin. Code (State Pers. Bd.), Rule 670-X-19-.01(2); see also Ala. Admin. Code (State Pers. Bd.), Rule 670-X-19.01(l)(b)(2) (defining “insubordination,” a “violation” for which dismissal might issue on the first offense, as the “[failure to follow an order; disobedience; failure to submit to authority as shown by demeanor or words”).

Earl admitted that he understood that an employee could be dismissed if he or she refused to report to work as ordered. He simply misjudged what DYS’s response would be when he continued to resist his transfer.

We have carefully reviewed the evidence presented to the ALJ, and it is clear that Earl was given notice of the “charges” against him and that the “charges” were “sufficient to warrant dismissal and specific enough to apprise [him] of the allegations against • him.” Likewise, we have carefully reviewed Earl’s various other contentions and conclude that a further discussion of those contentions is not warranted.

APPLICATION OVERRULED; NO-OPINION AFFIRMANCE OF JUNE 24, 2005, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

      . Earl argued, in part, that he could not transfer to Thomasville because his daughter was in school in Mobile, because his wife worked in Mobile, and because his family’s only vehicle, a Toyota truck, was not dependable enough for the trip to Thomasville. We note that Earl admitted that he and his wife continued to drive the Toyota truck for more than six years after his dismissal by DYS. It is also undisputed that DYS offered Earl financial assistance to assist him with relocation expenses, if he chose to relocate, and it offered to assist him by modifying his work schedule so that he could commute to Thom-asville with other employees who lived in the Mobile area.

      . We note that DYS had attempted to terminate Earl's employment on two prior occasions. On the first occasion, in 1989, DYS made several charges against Earl that it said warranted his dismissal. The Personnel Board concluded that some of the charges were justified but that dismissal was .too harsh a punishment. On the second occasion, in 1990-91, the Personnel Board concluded that DYS had attempted to transfer Earl to Montgomery for punitive reasons and that DYS had then terminated Earl’s employment for refusing the transfer assignment. Again, the Personnel Board required that Earl be reinstated.

      . The record on appeal does not contain all of the pleadings and motions filed with the federal district court. Instead, it contains selected orders of the federal district court, a transcript of the trial before the federal district court, and the trial exhibits.
      We note that the dismissed claims included, in part, a claim by Earl relating to "federal posttermination procedural due process.” As to that claim, the federal district court stated "that the posttermination administrative procedures available to [Earl] satisfied the requirement of procedural due process and that [Earl's] failure to avail himself of those procedures foreclosed any claim for violation of federal posttermination procedural due process rights in this case.” Cf. McKinney v. Pate, 20 F.3d 1550, 1564 (11th Cir.1994) (holding that when the plaintiff was provided with a pretermination hearing, but failed to apply for an available posttermination hearing and chose instead to pursue a § 1983 claim in federal court, the presence of an adequate state posttermination remedy "mandates that ... no [pretermination] procedural due process violation occurred” as a result of alleged impropriety in the pretermination hearing). But see Stallworth v. City of Evergreen, 680 So.2d 229, 234 (Ala.1996) (questioning the reasoning in McKinney and whether "a denial of due process at the pre-termination level can be fully remedied by a procedurally adequate post-termination hearing”).

      . The remaining claims against Dupree and Autery related to federal due-process allegations, state due-process allegations, and deprivation-of-a-liberty-interest allegations.

      . In regard to the damages award, the January 2002 order stated:
      “In the [October 2001] summary judgment order ..this Court ruled that [Earl] was entitled to recover only those back pay damages accruing between the date of [his] discharge from employment and the date that he was given 'an opportunity to be heard,' which in this case was the date that his appeal deadline expired under Alabama Code [1975], § 36-26-27(a), a period of ten days....
      "In the present case, the evidence submitted through [Earl's] exhibits showed that, at the time of his dismissal, [Earl] earned $794.80 by-weekly (ten working days). Accordingly, the Court finds that [Earl] is entitled to the sum of $794.80, representing the ten days of back pay for which [Earl] is allowed to recover for defendants' deprivation of his right to a pretermination hearing.”
      The federal district court refused to award Earl punitive damages, stating that it was not convinced that Dupree’s failure to provide Earl with a pretermination hearing was done "with malice.” Specifically, the federal district court stated that
      "the evidence at trial was uncontradicted that Dupree, the individual who dismissed Earl without a pretermination hearing, did so because he considered Earl's failure to report to work an abandonment of his job, not requiring a pretermination hearing. While Dupree’s interpretation of the law was erroneous, his actions clearly were not malicious.”

      . We note that the Personnel Board was not a party to the federal district court proceeding.

      . Wood argued in his postjudgment motion that Earl was not entitled to a formal reinstatement hearing before the Personnel Board because he did not pursue his right to appeal his dismissal to the Personnel Board after his employment was terminated. Instead, Wood argued, the court should have awarded Earl a less formal pretermination hearing before Wood, as required under DYS’s regulations. The federal district court disagreed with Wood's contention, stating:
      "A pretermination hearing before the Executive Director to determine if [Earl's] conduct warranted that he be dismissed is precisely the sort of hearing that [Earl] should have been give prior to his discharge. Defendants did not do that. Instead, they chose simply to dismiss [Earl] without any sort of hearing whatsoever. Once an employee has been dismissed without a hearing, an informal pretermination hearing is no longer possible. In circumstances such as those, the Court may award a hearing relative to reinstatement as injunctive relief for failure to provide a pretermination hearing, even if [Earl] did not appeal the dismissal administratively. See Wyatt [v. Bronner, 500 F.Supp. 817 (M.D.Ala.1980) ]. As the court held in Wyatt, if on such hearing it is determined that there was not good cause for [Earl's] discharge, then [Earl] would be entitled to reinstatement and back pay to the date of reinstatement.... If on such hearing, it is determined that there was good cause for discharging [Earl], then [Earl] would not be entitled to reinstatement, and back pay would be limited to that already awarded by this Court.”
      (Footnote omitted.)

      . For purposes of the present case, we note that the federal district court denied Earl’s request that it clarify its judgment as to the requirement that ''[Earl] must be furnished with specific charges at least ten days prior to the proposed hearing.” Earl apparently contended, as he does on appeal, that the only "charge” on which his dismissal could be based was "job abandonment.” However, in denying Earl's motion for clarification, the federal district court stated that its judgment required that Earl "be provided with the specific charges upon which defendant Wood [the current director of DYS] claims his dismissal was based.... Because the notice requirement is self-explanatory, ... [Earl’s] motion for further clarification is DENIED.” (Emphasis added.)

      . Earl argues that Ala.Code 1975, § 36-26-27(a), does not authorize the use of a hearing officer. However, in King, we concluded that the use of a hearing officer was within the authority of the Personnel Board based on applicable regulations adopted pursuant to the Board's regulatory authority. See Ala. Code 1975, § 36-26-9; Ala. Admin. Code (State Pers. Bd.), Rule 670-X-5-.08.

      . We note that Earl's appellate brief is devoid of any discussion (1) of his attempt to have the federal district court stay the hearing before the ALJ or (2) of the federal district court’s ruling as to the enforcement of its judgment.

      . At the hearing before the ALJ, Dupree, who was the executive director of DYS that dismissed Earl, testified that he transferred Earl to Thomasville because
      "[t]he Department was under federal court order to do certain things.... And we had started the process of trying to get additional funding from the Legislature to meet the mandates of the court order. And I had begun the process after my appointment of looking throughout the Department at what we had to do in terms of legal and court-ordered mandates versus things that we were doing that we may have thought were a good idea, but were not necessarily mandates.
      "And as a result of that, there were several personnel moves and actions that were taken. I looked at facility staffing to make sure that, one, we had enough where we needed them and in some cases, did we have too many people at a location.
      "As it relates to Mr. Earl’s situation, he was working in the CPS program, which was Community Placement and Supervision program. This program was started prior to my administration on a foundation grant that ultimately began to absorb state revenue to continue.

      "One of the things I had to look at in whether or not we continued [the CPS] program, though, which I thought was a very good program, is that under the law that created [DYS], it was clear that aftercare was a local responsibility and not necessarily a state responsibility. And, obviously, the local governments can decide whether or not they will do that or not or to whatever extent and we don’t really have a say in that.
      "So, consequently, in looking at resources and the fact that I had hundreds of kids backed up waiting to come into the system and we were also embarking upon an initiative where we were beginning to place kids in privately owned facilities and we had to have resources to have monitoring and licensing and to have people to check on what was going on more often in those facilities than at any other point in the history of [DYS]....
      "So consequently, I made a decision that we were not going to continue CPS and that some of those people would be used to monitor, just depending upon their classifications and all. And some people were moved around or given other assignments.
      “If I recall, Mr. Earl was a Youth Services Aide. And at that time, the closest available slot in his classification that I had vacant was in our Thomasville facility, which is — I'm going to roughly say about 100 miles north of Mobile. And that was where I had assigned him. I had to make a similar decision regarding another employee, who was not working in this program, but who I determined to be in an excess position in our Mobile group home; and I had assigned him to work at that same facility, also.

      "[W]hat I tried to do was look at the classifications of people and looking at the classifications that we needed at different locations, and I tried to match people up based upon their merit class with the closest available vacancy that we had.”

      . Earl is in essence complaining that he received the relief that he had requested from the federal district court, i.e., a hearing before the Personnel Board in regard to his dismissal. He did not convince the federal district court in his postjudgment motions that the "charges” against him should be restricted to "job abandonment.” He now requests that this court enforce the federal district court's judgment in a manner that is inconsistent with the federal district court's own orders. In other words, Earl urges this court to adopt an interpretation of the federal district court’s judgment that would require us to conclude that the only cause upon which his dismissal might have been based was "job abandonment.” We reject this argument for two reasons. First, such an interpretation of the federal district court’s judgment would require us to conclude that, despite its denial of Earl's motion for clarification and his motion to stay the proceedings before the ALJ, the federal district court intended for the Personnel Board to hold a hearing to determine whether Earl's termination was for "good cause” when the federal district court had purported to eliminate the only "charge” upon which Earl claims the termination could have been based, i.e., "job abandonment.” Such a reading of the judgment would mean there was no need for a hearing; this is clearly not what the federal district court intended.
      Second, Earl's argument confuses the nature of the federal district court's decision. The federal district court determined that DYS had wrongly assumed that Earl's failure to report to work as ordered was sufficient to constitute "job abandonment/resignation." (Emphasis added.) According to Dupree, when an employee resigned, DYS was not required to follow the pretermination procedures applicable to a dismissal from employment. However, the essence of the federal district court’s judgment was that Earl had not resigned (but that he had been dismissed), a predicate that then allowed the federal district court to conclude that "[Earl] was entitled to a pretermination hearing under the Fourteenth Amendment and ... since he was denied that right, he is now entitled to a due process hearing before the State Personnel Board to determine whether he was discharged for cause.” (Emphasis added.) In other words, Earl was entitled to a due-process hearing (the court later referred to the hearing as a "reinstatement hearing ... to determine whether [Earl] was discharged for cause”) to determine whether the reasons for his dismissal, i.e., his failure to report to work for three consecutive days despite direct orders that he do so, constituted "good cause” for Earl’s dismissal.

      . DYS's Policy and Procedures Manual provides that "[a]fter an employee has completed the required probationary period, s/he may not be terminated or demoted without good cause, subject to the Rules of the State Personnel Board, Chapter 670-X-18, and the State Merit System.” The manual further provides that an employee will not be dismissed from employment "for cause” without first providing the employee with (1) "a letter ... informing him/her of the reason for the recommendation that he/she be dismissed” and (2) an opportunity to have "a pretermination hearing before the Director of DYS.”


author: CRAWLEY, Presiding Judge.

text:
    Jacqueline Lee Mosley MOSS v. Gerald M. MOSLEY and Builders South, Inc.
    2040992.
    Court of Civil Appeals of Alabama.
    May 26, 2006.
    Certiorari Denied July 14, 2006 Alabama Supreme Court 1051282.

      J. Michael Newton, Mobile, for appellant.
    Joe E. Basenberg and Katie L. Hammett of Hand Arendall, LLC, Mobile, for appellee Builders South, Inc.
   CRAWLEY, Presiding Judge.

Jacqueline Lee Mosley Moss (“the wife”) and Gerald M. Mosley (“the husband”) were divorced on May 16, 1997. This is the second time they have been before this court. The husband appealed from the judgment of divorce, arguing, among other things, that the trial court’s division of the marital property was inequitable. This court affirmed the judgment in Mosley v. Mosley, 747 So.2d 894 (Ala.Civ.App.1999).

The following excerpts from this court’s opinion in Mosley provide the factual background underlying the parties’ dispute, both at the time of the divorce and now, nine years later, with respect to the family business known as “Builders South, Inc.”:

“In 1984, [the husband and the wife] incorporated [a] construction business under the name ‘Builders South, Inc.’ The husband was president and the wife was secretary-treasurer. The wife owned all the shares of stock, and the business was thereby considered a minority-business enterprise. In 1990, the wife’s father gave her a $20,000 advance on her inheritance, and she invested that sum in Builders South.
“... [The wife] has worked in the family business from the beginning. She described her duties at Builders South as follows:
“ ‘[I did] all the payrolls, ... general ledger [work], collected job cost information, [did] the routing of the trucks to get the equipment to and from the jobs, [did] all the financial things to go to the finance companies, talked to the finance companies, talked to the bankers concerning loans and setting up credit lines, talked to contractors on bids, [took] estimates on jobs, [and] actually got out and helped with the equipment if it had to be loaded and there was no one to load it.’ ”

Mosley v. Mosley, 747 So.2d at 895-96.

“The marital property consisted of the assets of Builders South; four parcels of real property; furniture, fixtures, and other personal property; the husband’s retirement account; and two cemetery lots. The parties attached no valuation to much of the personal property. The division of items such as furniture, jewelry, a gun collection, and a motorcycle was virtually uncontested at trial. Although the parties introduced lists of such personal property, they submitted no evidence of its value and spent virtually no time at trial challenging how it should be divided.
“The dispute at trial centered on how the business assets should be divided. The evidence as to the net value of Builders South was highly disputed. While the parties generally agreed as to the worth of the corporation’s assets, they disagreed as to the amount of its liabilities. The corporate assets, including office equipment, construction machinery, vehicles, tools, receivables, and cash deposits (but excluding real estate and improvements) were valued at approximately $990,000.
“The parties owned 168 acres on Arden Road in Chunchula, Alabama. The headquarters of Builders South is situated on five of those acres. The five-acre tract is valued at $10,000. Improvements on the five-acre tract include an office building with an attached living space that was the parties’ homeplace, valued at $65,000; a commercial warehouse valued at $100,000; and a garage with a small apartment, valued at $86,000. An area of 3 additional acres provides highway frontage for the business site. The remaining area of 160 acres in the 168-acre parcel is timberland, and it is valued at $170,000....
“The wife testified that she was not requesting, and did not want, periodic alimony. She stated that, in lieu of alimony, she preferred to have income-producing property, such as the 160 acres of timberland, or a piece of construction equipment, such as a crane, that she could lease to another contractor.”

Mosley v. Mosley, 747 So.2d at 899-900.

Paragraph 14 of the divorce judgment awarded the husband “the business known as ‘Builders South,’ and the assets of said company,” followed by a lengthy list of specific tools, machinery, equipment, office furniture, and fixtures. Paragraph 9 of the judgment awarded the wife “the Arden Road property of approximately 168 acres.” Paragraph 11 awarded the wife “the five-acre lot located on Arden Road, the commercial office with efficiency apartment and the metal building/warehouse located on Arden Road.”

Both parties filed timely postjudgment motions (the husband on May 27,1997, and the wife on June 16, 1997), requesting the trial court to clarify its property division. Each motion pointed out that in paragraph 14 the court had awarded the husband Builders South and its assets, yet in paragraphs 9 and 11 the court had awarded the wife real property owned by Builders South. The trial court failed to rule on either motion within 90 days. For the husband’s motion, the ninetieth day was August 25, 1997, and for the wife’s motion, the ninetieth day was September 14, 1997. Nevertheless, on September 16, 1997, the trial court entered an order purporting to amend the divorce judgment to award the husband all the assets of Builders South except those assets specifically awarded to the wife in paragraphs 9 and 11. The husband’s notice of appeal in Mosley v. Mosley was timely because it was filed on September 23, 1997, which was within 42 days of August 25, 1997, the date on which the husband’s postjudgment motion was deemed denied. No issue with respect to the trial court’s purported amendment of the property division was raised by the parties or addressed by this court in Mosley v. Mosley.

The husband and the wife filed a number of postdivorce pleadings, including multiple contempt petitions and motions to modify the divorce judgment. Many of the contempt petitions stemmed from the parties’ disagreement over the true ownership of the 168 acres of real property on Arden Road. On May 20, 2002, the parties had pending before the trial court, among other things, cross-petitions seeking to hold the other in contempt when, on that date, Builders South, Inc., moved to intervene, alleging that it was the owner of the real property located on Arden Road and averring that, on information and belief, the wife had trespassed on the property and had harvested an unknown quantity of timber belonging to Builders South. Neither party objected to the proposed intervention, and, on July 8, 2002, the trial court granted Builders South’s motion to intervene.

On November 18, 2002, the trial court entered an order “restraining all parties from cutting timber from the real property, the title to which is in question, pending further orders of th[e] court.” The order further required the wife to provide an accounting of all timber cut on the property and set the matter for a hearing on all pending motions. The matter was continued and reset several times. The parties submitted briefs to the trial court outlining their respective positions. Builders South argued that the judge who had tried the divorce case had no jurisdiction to distribute property titled in Builders South when Builders South was not a party to the divorce action and the judge had made no express finding that the corporation and its assets were marital property.

On November 29, 2004, the trial court entered the following order:

“This cause coming on to be heard on November 15, 2004, on all pending motions as filed by the parties in this cause; neither party being present but represented by counsel; and from the arguments of counsel, briefs as submitted in this cause, and upon consideration, it is hereby ORDERED by the Court as follows:
“1. That the Court finds that it has no jurisdiction to make any further orders with respect to property titled in the name of any corporation which was not made a party to [the divorce] proceedings.
“2. That all pending motions are hereby denied.
“3. That the costs of this cause having been prepaid, no costs are due to be taxed herein.”

On March 30, 2005, 121 days after the entry of the foregoing order, Builders South filed a “Motion for Clarification” that states:

“COMES Now the Intervenor Builders South [and] requests clarification of this court’s order of November 29, 2004, a copy of which is attached as Exhibit A. Being unaware of the order of November 29, despite checking the clerk’s ‘order box’ on a regular basis, this defendant sent a proposed order to the court, by letter of January 13, 2005, the letter and order attached hereto as Exhibit B.
“This defendant is uncertain from a review of the order of November 29, 2004, as to whether Paragraph 1. of that order applies to all orders entered by the court in this case with respect to property owned by Builders South, or applies only to future orders which the court might make with respect to the property of Builders South.
“This defendant requests oral argument of this motion at the court’s earliest convenience.”

On June 29, 2005, the trial court granted the “Motion for Clarification” and purported to amend its November 29, 2004, order nunc pro tunc to read as follows:

“The original judgment of Divorce was entered in this cause on May 16,. 1997. Builders South, Inc., allowed to intervene in this cause without objection from either [the wife] or [the husband], has moved the Court to correct confusion which has resulted from the original and a subsequent order, especially as those orders impact the assets and viability of the Intervenor. Builders South, Inc. has argued that, although it was not a party in the case at that time, the Judgment distributed its assets in a way that made it unable to function. Following entry of the original Judgment, both of the original parties to this action filed appropriate post-trial motions. The Court took no action on either post-trial motion and, pursuant to Rule 59.1 [Ala. R. Civ. P.], both motions were denied by operation of law.... On September 16, 1997, after both post-trial motions were deemed to be denied, the Court nevertheless amended the original Judgment. Builders South, Inc. has correctly argued that the amended Judgment is, simply put, a void document.
“During the argument of the motion urged by Builders South, Inc., the one fact that the parties agreed on is that the two judgments issued by this Court have created a tangled web which has significantly impacted the rights and privileges of Builders South, Inc. as a functioning entity. Builders South, Inc. also points out that except for the [wife] and [husband], no one from the Bench or Bar at the time of the entry of the separate Judgments remains involved with this case.
“The Court agrees with the arguments of Builders South, Inc., and with the authority submitted by it in support of its arguments. The Court therefore, holds as follows:
“(A) The Order of Court issued in this case on September 16, 1997 is a nullity.
“(B) The original Judgment of Divorce entered in this cause on May 16, 1997, is the valid judgment in this case. That Judgment, however, is flawed in its inconsistent and improper distributions of the property of the intervenor, Builders South, Inc., when Builders South was not a party to the action, and when neither the corporation nor its assets were found to be marital assets of the parties. The Judgment purported to award the assets of Builders South to the [husband] but, in other paragraphs, awarded property to the [wife], without acknowledging that the property was owned by Builders South, Inc. The Court, therefore reaffirms paragraph 14 of the original Judgment of Divorce which awarded ‘to the [husband] the business known as Builders South, Inc. and the assets of said company ... ’ Since paragraph 9 and 11 of the original Judgment are inconsistent with the clear intent of paragraph 14, paragraphs 9 and 11 of the Judgment of Divorce are hereby void, as are any other paragraphs in the original Judgment which, without acknowledgment of ownership, awarded assets of Builders South, Inc. to the [wife].”

Despite being labeled a “motion for clarification,” the March 30, 2005, motion by Builders South sought more than a clarification of the trial court’s November 29, 2004, order. A “motion for clarification” is just what the name implies: a request for an explanation from the trial court as to the meaning of a prior, allegedly unclear, order. A “motion for clarification” does not seek to persuade the trial court that a prior judgment should be changed, modified, or invalidated. If it does seek to do any of those things, then it is not a “motion to clarify” a judgment, but a motion to alter, amend, or vacate a judgment, one that, pursuant to Rule 59(e), Ala. R. Civ. P., must be filed not later than 30 days after entry of the judgment. If a trial court’s response to a “motion for clarification” is to explain, rather than to alter, amend, or vacate a prior order, then that response is a strong indicator that the motion was, in fact, one seeking clarification. See Gold Kist, Inc. v. Crouch, 671 So.2d 695, 696 (Ala.Civ.App.1995)(noting that “the original order was not modified by [the request for clarification]; the court simply clarified what we conclude was an abundantly clear order”). The converse is also true. If the trial court’s response to a motion for clarification does “more than merely clarify the trial court’s previous order,” by making, for example, “modifications that [are] more substantial in nature than the correction of a mere mechanical mistake,” then such corrections must be made pursuant to either Rule 59(e) or Rule 60(b), Ala. R.App. P. Pate v. Pate, 849 So.2d 972, 976 (Ala.Civ.App.2002).

The motion by Builders South sought oral argument and attached a “proposed order” aimed not only at altering the trial court’s November 29, 2004, order, but also at amending the eight-year-old divorce judgment. The motion accomplished that aim when the trial court, in purporting to amend the divorce judgment on June 29, 2005, adopted, verbatim, Builders South’s proposed order. We can hardly imagine a motion less deserving of the designation “motion for clarification”; we conclude that it was a postjudgment motion to alter, amend, or vacate a judgment pursuant to Rule 59(e), Ala. R.App. P. The motion cannot be construed as one pursuant to Rule 60(b), Ala. R.App. P., because it did not allege any of the grounds for relief under that rule. See Luker v. Carrell, [Ms. 2040318, March 31, 2006] - So.2d - (Ala.Civ.App.2006).

The motion was filed on March 30, 2005, 121 days after the court’s November 29, 2004, order, long past the time for filing either a postjudgment motion pursuant to Rule 59(e), Ala. R. Civ. P., or a notice of appeal pursuant to Rule 4(a), Ala. R.App. P., and long after the trial court had lost jurisdiction to alter, amend, or vacate the November 29, 2004, order. See George v. Sims, 888 So.2d 1224 (Ala.2004):

“ ‘A final judgment is an order “that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.” ’ Lunceford v. Monumental Life Ins. Co., 641 So.2d 244, 246 (Ala.1994) (quoting Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990)). Generally, a trial court has no jurisdiction to modify or amend a final order more than 30 days after the judgment has been entered, except to correct clerical errors. See Rule 59(e) and Rule 60, Ala. R. Civ. P.; Cornelius v. Green, 477 So.2d 1363, 1365 (Ala.1985) (holding that the trial court had no jurisdiction to modify its final order more than 30 days after its final judgnent); Dickerson v. Dickerson, 885 So.2d 160, 166 (Ala.Civ.App.2003) (holding that, absent a timely postjudgment motion, the trial court has no jurisdiction to alter, amend, or vacate a final judgment); and Superior Sec. Serv., Inc. v. Azalea City Fed. Credit Union, 651 So.2d 28, 29 (Ala.Civ.App.1994) (‘It is well settled that after 30 days elapse following the entry of a judgment, the trial court no longer has authority to correct or amend its judgment, except for clerical errors.’).”

888 So.2d at 1226-27.

Because the trial court’s November 29, 2004, order became final before Builders South ever filed its “Motion for Clarification,” the court had no jurisdiction to amend its November 29, 2004, order and its June 29, 2005, order purporting to do so and to amend the divorce judgment is void. An appeal from a void judgment must be dismissed. See, e.g., Ex parte Citizens Bank, 879 So.2d 535, 540 (Ala.2003); and Carter v. Hilliard, 838 So.2d 1062 (Ala.Civ.App.2002).

APPEAL DISMISSED.

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

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

      . September 14, 1997, was a Sunday; therefore, the wife's postjudgment motion was deemed denied by operation of law on September 15, 1997. See Rule 6(a), Ala. R. Civ. P.


author: CRAWLEY, Presiding Judge. BRYAN, Judge,

text:
    STATE of Alabama v. Chancelor Todd CHESSON and One 1993 Ford Ranger, VIN # 1FTCR10A6PUD15101.
    2050016.
    Court of Civil Appeals of Alabama.
    July 7, 2006.

      Brian A. McVeigh and Foster F. Marshall, asst, district attys., Calhoun and Cle-burne Counties, Anniston, for appellant.
    Submitted on appellant’s brief only.
   CRAWLEY, Presiding Judge.

This is an appeal from a forfeiture proceeding conducted pursuant to § 20-2-93, Ala.Code 1975. On November 15, 2004, Officer Kevin Briley and Officer Daniel Dietrich, members of the Anniston Police Department, stopped a Ford Ranger pickup truck (“the vehicle”) being driven by Chancelor Todd Chesson because the vehicle had a nonfunctioning tag light. Ches-son was the owner and sole occupant of the vehicle. Officer. Dietrich observed in plain view what he believed to be drug paraphernalia in the vehicle, and Chesson was asked to exit the vehicle. Officer Dietrich conducted a pat-down search of Chesson pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); during the pat-down search, Officer Dietrich felt a lump encased in plastic in Chesson’s pocket, which, Officer Dietrich testified, in his experience, was consistent with the presence of illegal drugs. Officer Dietrich testified that he believed that he had probable cause to search Chesson’s pocket and that a search of Chesson’s pocket produced a small bag of what appeared to be methamphetamine..

Chesson was placed in custody, and Officer Dietrich began an inventory search of the vehicle, which produced glass pipes, 82 plastic baggies, quantities of methamphetamine, electronic scales, and a silver BB gun. Approximately nine grams of methamphetamine was found in the cab and the covered bed of the vehicle. The vehicle was impounded. A later search of Ches-son’s person at the Anniston police station produced marijuana. As a result of this incident, Chesson eventually entered guüty pleas to possession of methamphetamine, possession of marijuana, and possession of drug paraphernalia.

On November 16, 2004, Officer Harry James Dodson, an Anniston city police officer assigned to the Calhoun County drug task force as an investigator, picked up the vehicle from the impound lot. Officer Dodson prepared an asset-condemnation request regarding the vehicle on November 29, 2004, and he placed the completed asset-condemnation request in a box for the assistant district attorney within two weeks after Chesson’s arrest.

On March 21, 2005, the State filed a complaint seeking the forfeiture of the vehicle under § 20-2-93, Ala.Code 1975. On May 9, 2005, Chesson filed a motion to dismiss, alleging that the State’s failure to promptly institute the forfeiture proceeding denied him due process and violated the promptness requirement of § 20-2-93(c), Ala.Code 1975.

On May 26, 2005, the trial court heard evidence regarding Chesson’s motion to dismiss. The legal secretary at the assistant district attorney’s office who prepared the files for condemnation and forfeiture proceedings testified that a new assistant district attorney took office in February 2005 and that the judge that had previously heard condemnation and forfeiture cases was replaced at approximately the same time. The secretary testified that she did not file this action until March 2005 because she was “making sure of the judge’s name to put on the paperwork and also ... waiting to find out which Assistant District Attorney’s name to put on the paperwork.”

The parties filed briefs supporting their positions, and, on September 27, 2005, the trial court granted Chesson’s motion to dismiss the State’s complaint seeking the forfeiture of the vehicle after considering the testimony at the May 26 hearing, the oral arguments made on behalf of the parties, and the written briefs filed on behalf of the parties. The State filed a timely appeal, alleging that the trial court had erred in granting Chesson’s motion to dismiss.

The first issue raised on appeal is whether the forfeiture proceeding was instituted “promptly” in accordance with § 20-2-93(c), Ala.Code 1975. “On appellate review of a ruling from a forfeiture proceeding at which the evidence was presented ore tenus, the trial court’s judgment is presumed to be correct unless the record shows it to be contrary to the great weight of the evidence.” Ex parte McConathy, 911 So.2d 677, 681 (Ala.2005). Section 20-2-93, Ala.Code 1975, provides in pertinent part:

“(b) Property subject to forfeiture under this chapter may be seized by state, county or municipal law enforcement agencies upon process issued by any court having jurisdiction over the property. ...
“(c) In the event of seizure pursuant to subsection (b) of this section, proceedings under subsection (d) of this section shall be instituted promptly.”

(Emphasis added.) “ ‘The mandate in [§ 20-2-93(c), Ala.Code 1975,] that forfeiture proceedings be instituted promptly is necessary to the statute’s constitutionality.’” Adams v. State ex rel. Whetstone, 598 So.2d 967, 969 (Ala.Civ.App.1992) (quoting Reach v. State, 530 So.2d 40, 41 (Ala.1988)). Furthermore, a forfeiture proceeding that is not instituted promptly is ineffectual. Adams, 598 So.2d at 969. “The term ‘promptly’ has been construed to mean within a reasonable time in light of all the circumstances.” State v. $17,636.00 in United States Currency, 650 So.2d 900, 901 (Ala.Civ.App.1994).

This Court has addressed the issue of promptness under this statute. In Winstead v. State, 375 So.2d 1207 (Ala.Civ.App.1979), and Eleven Automobiles v. State, 384 So.2d 1129 (Ala.Civ.App.1980), this Court ruled that instituting forfeiture proceedings three and one-half weeks and four weeks, respectively, after a seizure is permissibly prompt. This Court has also held that a 14-week delay between the seizure and the initiation of forfeiture proceeding was not excessive. Moynes v. State, 555 So.2d 1086, 1088-1089 (Ala.Civ.App.1989). However, in Adams, 598 So.2d at 969, this Court found that a delay of 10 weeks between the seizure of the property and the institution of the forfeiture proceedings did not meet the promptness requirement of § 20-2-93(c), Ala. Code 1975, when the record reflected no reason for the delay. This Court has stated that, without legislative guidance, “the facts and circumstances of each case may cause [the] issue [of promptness] to be decided on a case by case basis.” Adams, 598 So.2d at 970.

The State contends that the situation in this case is akin to the situation in Moynes v. State, 555 So.2d 1086 (Ala.Civ.App.1989). We disagree.

In Moynes, this Court ruled that a forfeiture proceeding, which was initiated more than 14 weeks after the seizure of the property at issue in that case, was instituted “promptly” because the claimant had lied about the ownership of the property and it had been necessary to conduct an independent investigation to determine who was the true owner of the property. In this case, however, the delay of 18 weeks between when the vehicle was seized and when the forfeiture complaint was filed was longer than the delay in Moynes. Furthermore, instead of the delay resulting from a “good faith” investigation to determine who was the true owner of the property, the delay resulted from the secretary’s wanting to make sure she put the correct names on the paperwork. We find that this case is factually more similar to Adams, in which a delay of 10 weeks between the seizure of the property and the institution of the forfeiture proceedings showed a lack of attentiveness by the State and, thus, a failure to comply with the “promptness” requirement of § 20-2-93(c). The trial court could have concluded that the 18-week delay was not reasonable given the circumstances and the excuse provided by the State.

Based on the facts of this case and the authorities cited above, we cannot conclude that the trial court erred in its ruling. After hearing the evidence ore tenus, the trial court could have reasonably dismissed the State’s complaint based on a lack of promptness because the court found that the State had failed to establish a sufficient reason for the delay in instituting the proceeding. Thus, no further analysis of the issues presented is necessary. The trial court’s judgment is hereby affirmed.

AFFIRMED.

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

BRYAN, J., dissents, with writing.

BRYAN, Judge,

dissenting.

I respectfully dissent.

‘When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error. However, where the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the court’s judgment carries no presumption of correctness.”

Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996) (citations omitted). In the present case, the material facts are essentially undisputed, and the controversy concerns a question of law. Therefore, contrary to the view held in the main opinion, we should not afford the trial court’s judgment a presumption of correctness. Instead, we should review de novo the application of the law to the facts of this case.

“[Section 20-2-93(c), Ala.Code 1975,] requires that forfeiture proceedings be instituted promptly but does not provide any specific time.... ‘... [T]he word “promptly” ... means nothing more nor less than reasonable time — the latter term being a relative one, and its meaning dependent upon the circumstances.’ ” Moynes v. State, 555 So.2d 1086, 1088 (Ala.Civ.App.1989) (quoting McCleskey & Whitman v. Howell Cotton Co., 147 Ala. 573, 580, 42 So. 67, 70 (1906)). In Moynes, this court stated that a forfeiture proceeding instituted more than 14 weeks after the seizure was reasonable and, therefore, prompt pursuant to § 20-2-93(c). 555 So.2d at 1088-89. In the present case, the forfeiture proceeding was instituted approximately 18 weeks after the seizure. The State presented undisputed evidence indicating that the activation for military service of the drug-task-force prosecutor and the replacement of the judge who heard drug-task-force cases had delayed the institution of the forfeiture proceeding. Given the facts of this case, I conclude that the forfeiture proceeding was instituted within a reasonable period of time. Therefore, I would hold that the forfeiture proceeding was instituted promptly in accordance with § 20-2~93(c). The judgment should be reversed, and the case should be remanded for the trial court to conduct a hearing and to make findings of fact as to whether forfeiture is appropriate.


author: COBB, Judge.

text:
    Sheryl A. TRESLAR v. STATE.
    CR-04-0628.
    Court of Criminal Appeals of Alabama.
    Oct. 28, 2005.
    Rehearing Denied Jan. 20, 2006.
    Certiorari Denied July 14, 2006 Alabama Supreme Court 1050581.

      Carl E. Chamblee, Jr., Birmingham, for appellant.
    Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   COBB, Judge.

On November 15, 2004, Sheryl A. Tres-lar pleaded guilty to third-degree theft of property in violation of § 13A-8-3, Aa. Code 1975. Treslar filed a motion to suppress the bank records turned over to law-enforcement officers by AmSouth Bank based on the privacy protections afforded by § 5-5A-43, Ala.Code 1975. (C. 42-44.) In her plea agreement, Treslar reserved her right to appeal the denial of her motion to suppress those records. (C. 79.) On November 15, 2004, pursuant to the plea agreement, Treslar was sentenced to 12 months’ unsupervised probation and was fined $350. (C. 75-79.)

On May 10, 2004, the trial court held a hearing on Treslar’s motion to suppress at which the court heard testimony from Forrest Duncan, an investigator for AmSouth Bank, and from Dr. Jim H. Day, the managing partner at Hoover Eye Care. (C. 3.)

The record reflects that, from January 1, 2002, to October 3, 2002, Treslar was employed by Dr. Day, the managing partner at Hoover Eye Care. Day discovered that for several months Treslar had been depositing checks payable to Hoover Eye Care into her account at AmSouth Bank. (R. 23.) Duncan discovered the illegal activity in Treslar’s account in September or October 2002, when he was contacted by Dr. Day and Detective Tim McArdle of the Hoover Police Department. They told him that the checks were the property of Hoover Eye Care. (R. 5.) Neither Day nor McArdle requested the bank records from AmSouth, yet after reviewing the records, Duncan sent the records to McArdle. (R. 6, 11, 16.) Duncan testified that the bank had been the victim of a crime, because when checks are deposited into the wrong account the bank has to pay back the party to whom the checks were payable. (R. 7, 11.) Duncan testified that the bank had suffered a loss of $6,867. (R. 6.) Duncan further testified that the account Treslar was improperly depositing checks into was a corporate account. (R. 21.)

Treslar does not dispute the facts of this case but argues on appeal that the trial court erred in denying her motion to suppress the evidence of the bank records based on § 5-5A-43, Aa.Code 1975. The State argued that AmSouth Bank had the right to turn over the bank records because, it argued, the bank was the victim of a crime and the records were evidence in the case. The State argued further that the privacy protection afforded by § 5-5A-43, Aa.Code 1975, is based on Fourth and Fifth Amendment rights to privacy and that Treslar did not have standing to assert those rights because the account as to which she was seeking to apply the primary protections was a corporate account. The trial court denied the motion, stating that AmSouth was justified in turning over the banks records to the police because Treslar did not have standing to assert Fourth and Fifth Amendment rights to privacy over the records because the account was a corporate account and the bank was the victim of a crime. (R. 31.)

This is a matter of first impression; neither this Court nor the Alabama Supreme Court has interpreted § 5-5A-43 in the context of a criminal violation. The State argues that Treslar did not preserve on appeal the issue whether the trial court erred in denying the motion to suppress because she did not specifically reserve her right to appeal before the entry of her guilty plea, as required by Knight v. State, 936 So.2d 544 (Ala.Crim.App.2005), which stated:

“ ‘To reserve an issue for review, a defendant must express his or her intention, before the guilty plea is entered, to appeal the issue in question. Because a guilty plea waives all nonjurisdictional defects occurring before the entry of the plea, by entering a guilty plea a defendant is presumed to have abandoned all nonjurisdictional defects that occurred before the plea unless he or she expressly conditions the plea on the right to appeal the issue in question by expressly reserving it before entry of the plea. See, e.g., Prim v. State, 616 So.2d 381 (Ala.Crim.App.1993). Reserving an issue for appeal avoids the waiver effect of the guilty plea, but it does not preserve the issue for appellate review. Thus, in the guilty-plea context, an issue relating to a defect occurring before the entry of the plea must be both preserved by a timely and specific motion and/or objection and an adverse ruling from the trial court and reserved for appeal before the entry of the plea.’ ”

Knight v. State, 936 So.2d at 546-47 (quoting Mitchell v. State, 913 So.2d 501, 505 (Ala.Crim.App.2005)(footnote omitted)). The State argues that there is no record of Treslar’s reserving the right to appeal other than a notation on the guilty-plea agreement sheet attached to the guilty plea form. (C. 75, 79.)

Pursuant to the Alabama Supreme Court’s holding in Ex parte Mullins, 920 So.2d 589 (Ala.2005), we conclude that Treslar did preserve for appeal the denial of her motion to suppress. In Ex parte Mullins, the Court held that the trial judge’s comments on the record after the entry of the guilty plea evidenced that the judge understood that the defendant was reserving the right to appeal the denial of the motion to suppress before the guilty plea was entered. In Treslar’s case, the same conclusion can be drawn, i.e., that the trial court understood Treslar was reserving the right to appeal the denial of her motion from the notation on the guilty-plea form, which the judge signed, and the attached plea-agreement sheet, which contained the notation of Treslar’s reservation of the right to appeal the denial of the motion. (C. 75, 79.)

On appeal, Treslar contends that § 5-5A-43, Ala.Code 1975, prohibits a bank from releasing the financial records of its account holder unless the account holder consents or unless the bank is served with a subpoena, warrant, or other court order. Section 5-5A-43, Ala.Code 1975, specifically states:

“A bank shall disclose financial records of its customers pursuant to a lawful subpoena, summons, warrant or court order issued by or at the request of any state agency, political subdivision, instrumentality, or officer or employee thereof and served upon the bank. No bank, director, officer, employee or agent thereof shall be held civilly or criminally responsible for disclosure of financial records pursuant to a subpoena, summons, warrant or court order which on its face appears to have been issued upon lawful authority.”

Section 5-5A-43, Ala.Code 1975, does not state, nor has any Alabama Court held, that issues of Fourth Amendment privacy rights under the United States Constitution are the basis or purpose for the statute. The text of the statute affords a bank protection from criminal or civil prosecution for releasing bank records when those records are subpoenaed or the bank is ordered by a court to release the records. The statute does not prohibit a bank from releasing an account holder’s financial records to investigators in the absence of a subpoena or court order. Furthermore, the United States Supreme Court has held that a bank’s records are not afforded Fourth Amendment protection:

“On their face, the documents subpoenaed here are not respondent’s ‘private papers.’ Unlike the claimant in Boyd[ v. United States, 116 U.S. 616 (1886)], respondent can assert neither ownership nor possession. Instead, these are the business records of the banks. As we said in California Bankers Assn. v. Shultz, supra, [416 U.S. 21], at 48-49 [(1974)], ‘(b)anks are ... not ... neutrals in transactions involving negotiable instruments, but parties to the instruments with a substantial stake in their continued availability and acceptance.’ The records of respondent’s accounts, like ‘all of the records [which are required to be kept pursuant to the Bank Secrecy Act,] pertain to transactions to which the bank was itself a party.’ Id., at 52.”

United States v. Miller, 425 U.S. 435, 440-41, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). Although no Alabama appellate court has directly addressed the issue, the United States Court of Appeals for the Fifth Circuit has adopted the Miller principle and held that it is not necessary to subpoena bank records or to have any established procedure for obtaining the records so long as the bank consents:

“In United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), the Supreme Court held that a person has no protected Fourth Amendment interest in the privacy of his bank records, and it was therefore irrelevant whether the subpoenas used to obtain a defendant’s bank records were defective. In this case, no subpoenas were issued pri- or to the search, but the Bank’s permission for the search was expressly given. In light of Miller, it is irrelevant whether subpoenas were obtained for the search. We therefore hold that the trial court was correct in denying Poole’s motion to suppress the evidence obtained from his bank records.”

United States v. Poole, 557 F.2d 531, 536 (5th Cir.1977). The Eleventh Circuit Court of Appeals has more recently followed the reasoning in Miller as well:

“Although a motel guest may have a reasonable expectation of privacy in his room, e.g., Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); United States v. Bulman, 667 F.2d 1374, 1383-84 (11th Cir.1982), courts have refused to find such an interest in records similar to the registration records here. Thus, the Court has held that a bank depositor has no interest in the bank’s records of his accounts. United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) Accord, Reporters Comm. for Freedom of the Press v. AT & T, 593 F.2d 1030 (D.C.Cir.1978), cert. denied, 440 U.S. 949, 99 S.Ct. 1431, 59 L.Ed.2d 639 (1979) (phone call records). We hold that Willis lacks standing to challenge the officers’ examination of the motel records.”

United States v. Willis, 759 F.2d 1486, 1498 (11th Cir.1985).

Because AmSouth Bank was a victim of a crime, it had more than a third-party interest in protecting itself from Treslar’s embezzlement, and Treslar cannot have had a reasonable expectation of privacy from the bank in documents she was executing between herself and the bank. We find, therefore, that the trial court did not err in denying Treslar’s motion to suppress the bank records.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ„ concur.

      . The record reflects that a restitution hearing was scheduled for March 18, 2005. The record is silent as to whether the hearing was held.

      . “[Defendant] reserves right to appeal denial of motion to suppress." (C. 79.)