author: NABERS, Chief Justice. LYONS, Justice

text:
    Ex parte FLEXIBLE PRODUCTS COMPANY et al. (In re Randy Wade Bice et al. v. Micon Products International, Inc., et al.)

    1051137.
    Supreme Court of Alabama.
    Dec. 22, 2006.

      Bernard Taylor and Douglas S. Arnold of Alston & Bird, LLP, Atlanta, Georgia; and Daniel J. Reynolds, Jr., Bessemer, for petitioner, Flexible Products Company.
    Wynn M. Shuford and Adam K. Peck of Lightfoot, Franklin & White, LLC, Birmingham, for petitioner, BASF Corporation.
    Thomas E. Walker, R. Marcus Givhan, and Mary Brunson Whatley of Johnston Barton Proctor & Powell, LLP, Birmingham; Willis A. Siegfried and Michael R. Borasky of Eckert Seamans Cherin & Mellott, LLC, Pittsburgh, Pennsylvania; and William F. Goodman III of Watkins & Eager, Jackson, Mississippi, for petitioner, Bayer Materialseienee, LLC.
    Fournier J. Gale, H. Thomas Wells, Jr., John A. Earnhardt, and Kip A. Nesmith of Maynard, Cooper & Gale, P.C., Birmingham, for petitioner, Dow Chemical Company.
    John W. Dodson and Jinny M. Ray of Ferguson, Frost & Dodson, L.L.P., Birmingham; and James R. Hankie of Sher-rard, German & Kelly, Pittsburgh, Pennsylvania, for petitioners, Earth Support Services d/b/a Micon, Inc., and Micon Products International.
    Donald W. Stewart, Anniston, for respondents.
    E.L. Brobston and W. Stan Brobston of Brobston & Brobston, Bessemer; Michael Lipscomb, Bessemer; and William A. Short, Jr., Bessemer, for amicus curiae Bessemer, Alabama, Bar Association.

      . The trial court consolidated three cases: Randy Wade Bice et al. v. Micon Products International, Inc., et al. (CV-01-1194); Richard B. Abernathy et al. v. Micon Products International, Inc., et al. (CV-01-1341); and Robert W. Acklin, Jr., et al. v. Micon Products International, Inc., et al. (CV-02-1518).

   NABERS, Chief Justice.

For the second time, this Court is asked to consider whether Daniel R. Boyd, Debra C. Butler, and Bryan M. Kelley, coal miners who claim they were injured by exposure to a certain chemical while employed as coal miners and whose claims arose in Tuscaloosa County (“the Tuscaloosa plaintiffs”), may pursue their claims against 11 defendants, including Flexible Products Company and Micon Products International, Inc., involved in the manufacture, use, and distribution of the chemical in the Bessemer Division of the Jefferson Circuit Court. The defendants have petitioned for the writ of mandamus directing the trial court to sever the claims of the Tuscaloosa plaintiffs and transfer those cases from the Bessemer Division of the Jefferson Circuit Court to another venue. We grant the petition.

Procedural History

This petition concerns three consolidated actions that were filed in the Bessemer Division of the Jefferson Circuit Court in 2001 and 2002. In Ex parte Flexible Products Co., 915 So.2d 34 (Ala.2005)(“Flexible Products I”), we described the procedural history in these actions as follows:

“This petition for a writ of mandamus arises from a number of actions in which 1,675 plaintiffs, all individuals who claim that they were injured by exposure to isocyanate while employed as coal miners, have sued 11 defendants, including Flexible Products Company and Micon Products International, Inc., all of which are involved in the manufacture, use, and distribution of isocyanate.
“The underlying cases began with three actions brought by the plaintiffs: Bice v. Micon, Inc. (CV-01-1194), filed in September 2001; Abernathy v. Micon, Inc. (CV-01-1341), filed in October 2001; and Acklin v. Micon, Inc. (CV-02-1518), filed in October 2002. In all three cases, the plaintiffs asserted claims of negligence, wantonness, outrage, failure to warn, violation of the Alabama Extended Manufacturer’s Liability Doctrine (‘the AEMLD’), misrepresentation, concealment, breach of warranties, and conspiracy. On August 24, 2004, the plaintiffs moved to consolidate the three cases pursuant to Rule 42, Ala. R. Civ. P., and on November 17, 2004, the trial court issued the CMO [case-management order] addressing the motion to consolidate. In pertinent part, the CMO states:
“ ‘2. Motion To Transfer
“ ‘The [trial court] finds under the Alabama Code of 1975, § 6 — 3—7(c), that venue is proper where the cases sought to be venued together involve common issues of law or material fact and the action can be maintained more efficiently and economically for all parties if consolidated and tried here in the Bessemer Division of Jefferson County and the interest of Justice supports the joinder of the parties as Plaintiffs in one action as provided by [Ala. R. Civ. PJ Rule 42.
“ ‘3. Consolidation.
“ ‘The above styled cases are consolidated for pretrial purposes, discovery, motions, and trial under [Ala. R. Civ. P.] Rule 42(a). This order constitutes a determination that these actions are consolidated for trial. They are consolidated because they contain common questions of fact and are sufficiently complex. The claims by the Plaintiffs in those cases are significantly the same and raise the common questions of fact.’ ”

915 So.2d at 37 (footnote omitted).

Many of the claims of the 1,675 plaintiffs arose in the Bessemer Division; it is undisputed that those claims could be filed in the Bessemer Division. Moreover, no party disputes that the claims of the Tuscaloosa plaintiffs arose in Tuscaloosa County. In Flexible Products I, the Court stated that a determination as to the propriety of venue for the Tuscaloosa plaintiffs was “premature” because the trial court had yet to determine whether “questions of law or material fact common to all those persons ... predominate over individualized questions pertaining to each plaintiff,” a necessary condition to pendent venue (the rule that venue being good for one, it is good for all) under § 6-3-7(c), Ala.Code 1975. 915 So.2d at 51. We instructed the trial court to vacate that part of the case-management order that held that venue in the Bessemer Division was proper as to the Tuscaloosa plaintiffs. The trial court has since determined that common questions do predominate and that the claims of the Tuscaloosa plaintiffs fall within the scope of § 6 — 3—7(c). This petition does not challenge those findings.

Instead, the question now presented is whether, in view of the legislation creating the Bessemer Division — Act No. 213, Ala. Local Acts 1919 (“the Bessemer Act”)— § 6-3-7, Ala.Code 1975, applies to actions brought in the Bessemer Division that arise outside of Jefferson County.

Standard of Review

“ ‘A writ of mandamus is an extraordinary remedy, and it will be “issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” ’ ”

915 So.2d at 39 (quoting Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998)).

Flexible Products I also concerned a petition for the writ of mandamus. Thus, the same standard of review applies in this proceeding.

Analysis

The Bessemer Act divided Jefferson County into two divisions — the Birmingham Division and Bessemer Division. Section 2 of the Bessemer Act states:

“The said Circuit Court [for the Bessemer Division], holding at Bessemer, as in this Act provided, shall have, exercise and possess all of the jurisdiction and powers which are now or which may hereafter be conferred by law on the several Circuit Courts of this State, which said jurisdiction and powers shall be exclusive in, limited to, and extend over that portion of the territory of the County of Jefferson, which is included in the following precincts, to-wit: [physical description of the Bessemer Division] and from and over the above mentioned and described territory all jurisdiction and powers heretofore or now exercised or existing therein by the Circuit Court of [Jefferson County,] as now held at Birmingham, is hereby expressly excluded.”

Despite use of the word “jurisdiction” in section 2, we have interpreted the Bessemer Act as addressing venue. Ex parte Jackson, 516 So.2d 768, 769 (Ala.1986) (“[T]he Bessemer Court Act ... should be read as venue legislation rather than jurisdiction legislation.... ”). This Court has consistently discussed the application of the Bessemer Act in terms of whether “venue is proper” in the Bessemer Division with respect to a particular action, claim, or plaintiff. See Ex parte Children’s Hosp. of Alabama, 931 So.2d 1, 8 (Ala.2005)(venue is proper in the Bessemer Division only as to those claims that arise within its territorial boundaries); Ex parte Hanna Steel Corp., 905 So.2d 805, 807 (Ala.2004)(issuing the writ of mandamus because “venue in the Bessemer Division of the Jefferson Circuit is improper”). We recently stated in Ex parte Haynes Downard Andra & Jones, LLP, 924 So.2d 687, 699 (Ala.2005), that “the venue accorded the Bessemer Division is ... exclusive by virtue of the substantive language of the Bessemer Act allowing that division to exercise its judicial power only for actions arising in its territorial boundary.” Because the Bessemer Act is a venue statute, a defendant can waive his or her right to transfer an action that was improperly filed in the Bessemer Division. See Rule 12(h)(1), Ala. R. Civ. P.

Viewing the actions of the Tuscaloosa plaintiffs independent of the other consolidated claims, venue in the Bessemer Division is improper as to those actions because it is undisputed that the claims of the Tuscaloosa plaintiffs did not arise within the Bessemer Division. See Ex parte Walter Indus., Inc., 879 So.2d 547, 553 (Ala.2003)(holding that claims that arose in Tuscaloosa County and that were filed in the Bessemer Division were subject to transfer). The trial court found, however, that, under the pendent venue feature of § 6-3-7(c), Ala.Code 1975, the Tuscaloosa plaintiffs could join an action in which venue as to the claims of the other plaintiffs was proper in the Bessemer Division. See Unum Life Ins. Co. of America v. Wright, 897 So.2d 1059, 1079 (Ala.2004)(stating that joinder of plaintiffs as to whom venue was improper may be permitted under § 6-3-7(c)).

The legislature rewrote § 6-3-7 in 1999 to address venue for civil actions against corporations. Act No. 99-249, Ala. Acts 1999. Section 6-3-7(c) states that, notwithstanding the pendent venue concept in Rule 82(c), Ala. R. Civ. P.,

“[vjenue [in an action against a corporation] must be proper as to each and every named plaintiff joined in the action unless the plaintiffs shall establish that they assert any right to relief jointly, severally, or arising out of the same transaction or occurrence and that the existence of a substantial number of questions of law or material fact common to all those persons not only will arise in the action, but also: (1) that such questions will predominate over individualized questions pertaining to each plaintiff; (2) the action can be maintained more efficiently and economically for all parties than if prosecuted separately; and (3) that the interest of justice supports the joinder of the parties as plaintiffs in one action.”

§ 6-3-7(c), Ala.Code 1975 (emphasis supplied). The trial court here found that the actions filed by the Tuscaloosa plaintiffs satisfied all of the criteria in § 6-3-7(c) for pendent venue, a finding not challenged in the petition before us.

Accordingly, the issue here is whether the legislature intended § 6-3-7 to override the Bessemer Act and its limitations on the judicial power of the Bessemer Division as to claims arising in that Division. The relationship of these two statutes was thoroughly analyzed in Ex parte Haynes Downard, supra. In Haynes Downard, the plaintiffs joined claims against multiple defendants in an action filed in the Bessemer Division. The claims against one defendant arose in the Birmingham Division of Jefferson County, but those against the other defendants allegedly arose in the Bessemer Division. 924 So.2d at 691. Relying on the pendent-venue concept in Rule 82(c), Ala. R. Civ. P., the plaintiffs in Haynes Downard argued that, because venue for the claims arising in Bessemer was proper in the Bessemer Division, the circuit court in the Bessemer Division could consider all of the plaintiffs’ claims. This Court held, however, that Rule 82(c) applies only to venue issues as between different counties, not venue issues as between judicial divisions in the same county. 924 So.2d at 692.

The plaintiffs in Haynes Downard further asserted that § 6-8-7 — revised in 1999 — required treating the Bessemer Division as a separate county for purposes of the general venue laws. According to that argument, if the Bessemer Division was so treated, the circuit court in the Bessemer Division could consider claims arising outside Bessemer if those claims were joined with claims as to which venue in the Bessemer Division was proper. The plaintiffs in Haynes Downard relied on subsection (d) in § 6-3-7 in support of this argument:

“(d) Notwithstanding Section 6-3-10, or any local laws relating to venue, in any county having two courthouses, the divisions shall be treated as two separate judicial districts for purposes of venue and for purposes of any change or transfer of venue, unless the jury venire is drawn from throughout the entire county.”

The Haynes Downard Court, however, rejected that argument, held that venue as to the claims arising in the Birmingham Division was not proper in the Bessemer Division, and ordered that those claims be transferred from the Bessemer Division. 924 So.2d at 700. The Court found that, when § 6-3-7 was revised in 1999, the legislature did not intend to change the limitations of judicial power vested in the Bessemer Division by the Bessemer Act. 924 So.2d at 699. Specifically, interpreting § 6-3-7(d), the Court stated:

“[W]e conclude that § 6-3-7(d) was not intended by the legislature to change the ‘exclusive jurisdiction’ status of the Bessemer Division, inasmuch as the pre-1999 decisions of this Court had clearly established the principle that the Bessemer Division ... ‘could exercise [the same power exercised in the Jefferson County judicial circuit] only for actions arising in its territorial boundary. ’ ... Glenn v. Wilson, [455 So.2d 2 (Ala. 1984) ] stands for the proposition that despite the fact that the exercise of judicial power in the Bessemer Division should be deemed a matter of venue as opposed to subject-matter jurisdiction, the venue accorded the Bessemer Division is nonetheless exclusive by virtue of the substantive language of the Bessemer Act allowing that division to exercise its judicial power only for actions arising in its territorial boundary. This was the status established for the Bessemer Division as of the enactment of § 6-3-7(d) by six decades of interpreting caselaw, and the legislature’s declaration that ‘in any county having two courthouses [such as Jefferson County], the divisions shall be treated as two separate judicial districts for purposes of venue’ can only be understood to have accepted the judicially declared respective status of the Bessemer Division visa-vis the Birmingham Division.
‘It is an ingrained principle of statutory construction that “[t]he Legislature is presumed to be aware of existing law and judicial interpretation when it adopts a statute-” ... ‘“It is a settled rule that in the adoption of the Code the Legislature is presumed to have known the fixed judicial construction pre-existing statutes had received, and the substantial re-enactment of such statutes is a legislative adoption of that construction.’ ” ... “It is a familiar principle of statutory interpretation that the Legislature, in enacting new legislation, is presumed to know the existing law.” ... ’
“... Thus, to honor the legislative directive and treat the Bessemer Division as a separate ‘judicial district’ for purposes of venue does not require us to depart from the treatment accorded venue as it relates to the Bessemer Division [in our prior decisions].”

924 So.2d at 698-99 (emphasis supplied).

In Haynes Doumard this Court soundly reasoned that the legislature did not intend to amend, alter, or modify the Bessemer Act when it enacted § 6 — 3—7(d) in 1999. Nothing in the language of § 6-3-7(c) indicates any intent by the legislature to modify the Bessemer Act as it had been interpreted by this Court. Accordingly, the rationale in Haynes Downard that § 6 — 3—7(d) did not expand the judicial power accorded the Bessemer Division by the Bessemer Act is equally applicable to § 6-3-7(e). In light of this Court’s longstanding interpretation of the Bessemer Act — i.e., that the Bessemer Division may “exercise its judicial power only for actions arising in its territorial boundary” — we conclude that § 6-3-7(c) does not confer authority to the trial court to adjudicate the claims of the Tuscaloosa plaintiffs.

As a result, the defendants have a clear legal right to an order severing the claims of the Tuscaloosa plaintiffs and transferring those claims from the Bessemer Division. The petition for the writ of mandamus is therefore granted.

PETITION GRANTED; WRIT ISSUED.

SEE, HARWOOD, WOODALL, STUART, SMITH, and BOLIN, JJ„ concur.

LYONS and PARKER, JJ., dissent.

LYONS, Justice

(dissenting).

Act No. 213, Ala. Local Acts 1919 (“the Bessemer Act”), divides Jefferson County into two divisions — the Birmingham Division and the Bessemer Division. The main opinion endorses a construction of the Bessemer Act that leads to a result that discriminates against persons whose claims arise in the Bessemer Division. Although a person has the statistical possibility of suffering an injury giving rise to a claim wherever that person goes, as a practical matter, people are more frequently present in the locale in which they reside and therefore are more likely to suffer an injury .in that locale. I therefore address the effect of the majority’s decision in terms of its impact on residents of the two divisions of Jefferson County.

Pursuant to the Bessemer Act, a person residing in the Birmingham Division cannot commence an action in the Birmingham Division if that action arises in the Bessemer Division, without being subjected to a motion to dismiss for improper venue. By the same token, a person residing in the Bessemer Division cannot commence an action in the Bessemer Division if that action arises in the Birmingham Division, without being subjected to a motion to dismiss for improper venue. So far, a resident of the Birmingham Division and a resident of the Bessemer Division have a fair and equal exchange of benefits and burdens. But, under this Court’s construction of the Bessemer Act, the rights available to a resident of the Birmingham Diyision are far greater than those available to a resident of the Bessemer Division.

A resident of the Birmingham Division filing an action relating to a claim that arises in the Birmingham Division will be entitled to the full panoply of Alabama venue laws. For example, suppose the Birmingham plaintiff desires to join code-fendants and, as to one of them, venue in the Birmingham Division is improper. That plaintiff has no problem because Rule 82(c), Ala. R. Civ. P., with its concept of pendent venue, is available to permit join-der of such codefendants for claims brought in the Birmingham Division. Suppose the Birmingham plaintiff would like to commence an action joining with a co-plaintiff as to whom venue in the Birmingham Division is not generally appropriate. Once again, there is no problem, because § 6-3-7(c), Ala.Code 1975, permits joinder of coplaintiffs so long as the requirements set forth in the statute can be satisfied. Suppose the Birmingham plaintiff is injured in an automobile accident in Shelby County involving a defendant who resides in Jefferson County. Section 6-3-2(a)(3), Ala.Code 1975, permits the Birmingham plaintiff to file the action in the Birmingham Division. Further, regardless of whether the claim in any action filed by a resident of the Birmingham Division arose in that division or elsewhere, when the case is tried, the jury will be selected from among other persons similarly situated, that is, other residents of the Birmingham Division.

Those citizens who happen to reside in the Bessemer Division are not entitled to the same treatment; indeed, they are treated as second-class citizens. For example, suppose the Bessemer plaintiff, suing on a claim arising in the Bessemer Division, desires to join codefendants and, as to one of them, venue in the Bessemer Division is improper. That plaintiff has a problem because Rule 82(c), with its concept of pendent venue, is not available to permit joinder of such codefendants for claims brought in the Bessemer Division. Ex parte Haynes Downard Andra & Jones, LLP, 924 So.2d 687 (Ala.2005). Suppose the Bessemer plaintiff, suing on a claim arising in the Bessemer Division, would like to commence an action with a coplaintiff aligned with him but as to whom venue is not appropriate in the Bessemer Division and whose claim did not arise either in the Bessemer Division or the Birmingham Division. The main opinion holds that the circumstances described in § 6-3-7(c) that might otherwise make venue in the Bessemer Division proper are unavailable. Further, for any claim that does not arise in either the Bessemer Division or the Birmingham Division but as to which venue is appropriate in Jefferson County, a resident of the Bessemer Division asserting such a claim who desires to sue in Jefferson County must commence the action in the Birmingham Division. Ex parte Walter Indus., Inc., 879 So.2d 547 (Ala.2003). In that situation, the resident of the Bessemer Division, unlike his counterpart in the Birmingham Division, must select a jury from the .Birmingham Division, a part of the county separate from where the plaintiff resides. In other words, he is deprived of a jury of his peers.

Bessemer residents are under these circumstances the victims of discriminatory treatment. To avoid a charge of violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, one must find a rational basis for disparate treatment. In Fitzgerald v. Racing Association of Central Iowa, 539 U.S. 103, 107, 123 S.Ct. 2156, 156 L.Ed.2d 97 (2003), the Supreme Court, quoting from Nordlinger v. Hahn, 505 U.S. 1, 11-12, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992), stated:

“ ‘[T]he Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.’ ”

Before we even get to the question whether the Alabama Legislature in 1919 had a plausible policy reason for establishing a system that blatantly favors Birmingham Division residents over Bessemer Division residents, we must consider the fundamental question whether the disparate treatment is required by the terms of the Bessemer Act. We are obliged to interpret the Bessemer Act in a manner, if possible, that avoids an unconstitutional result. State Bd. of Health v. Greater Birmingham Ass’n of Home Builders, Inc., 384 So.2d 1058, 1061 (Ala.1980) (“We will not invalidate a statute on constitutional grounds if by reasonable construction it can be given a field of operation within constitutionally imposed limitations.”). If we can say that the discriminatory treatment is not warranted by the text of the statute then we need not search for a rational basis.

The Bessemer Act, at § 2, provides:

“The said Circuit Court [for the Bessemer Division], holding at Bessemer, as in this Act provided, shall have, exercise and possess all of the jurisdiction and powers which are now or which may hereafter be conferred by law on the several Circuit Courts of this State, which said jurisdiction and powers shall be exclusive in, limited to, and extend over that portion of the territory of the County of Jefferson, which is included in the following precincts, to-wit: [physical description of the Bessemer Division] and from and over the above mentioned and described territory all jurisdiction and powers heretofore or now exercised or existing therein by the Circuit Court of [Jefferson County,] as now held at Birmingham, is hereby expressly excluded.”

(Emphasis added.)

Section 2 does not, however, comprise the entire Act. Section 6 of the Bessemer Act states:

“That the Circuit Court of the Tenth Judicial Circuit holding at Bessemer, as in this Act provided for, shall, when not in conflict with the provisions hereof, be governed by the same rules, general, local, and special laws as govern the said circuit court when holding at Birmingham; but this shall not be construed as prohibiting a Judge of said court holding court at Bessemer, as in this Act provided for, from promulgating other and different rules governing the practice and procedure in and for said court holding at Bessemer; and all local, special and general laws applicable to the Circuit Court of the Tenth Judicial Circuit holding at Birmingham shall be applicable to said Circuit Court holding at Bessemer, when not in conflict with any provisions of this Act, nor with any law or part of a law applicable alone to courts not held at a county site.”

(Emphasis added.)

A reasonable construction of the Bessemer Act leads to the conclusion that the Bessemer Division was not intended to be an illegitimate stepchild of a court, but a court with all of the jurisdiction and powers of any other circuit court; however, the cases falling within its jurisdiction are exclusive of any jurisdiction in the Birmingham Division and vice versa. The main opinion seizes upon the provision for exclusivity vis-a-vis the Birmingham Division and elevates it to an exclusivity vis-a-vis any other court in the State, contrary to the text of §§ 2 and 6.

I would apply §§ 2 and 6 in a manner that permits the provisions for joinder of claims in § 6-3-7(c) to operate to allow the joinder of claims arising in Tuscaloosa County with the claims arising in the Bessemer Division. Such an application does no violence whatsoever to the exclusion in § 2 of claims arising in the Birmingham Division from being heard in the Bessemer Division and vice versa. Such a construction is mandated by the phraseology in § 2 that the Bessemer Division “shall have, exercise and possess all of the jurisdiction and powers which are now, or which may hereafter be conferred by law on the several Circuit Courts of this State” and the text of § 6 providing “[t]hat the Circuit Court of the Tenth Judicial Circuit holding at Bessemer, as in this Act provided for, shall, when not in conflict with the provisions hereof, be governed by the same rules, general, local, and special laws as govern the said circuit court when holding at Birmingham.” The several circuits of the state enjoy the availability of § 6-3-7(c); so should the Bessemer Division.

The main opinion at footnote 7 refers to the “significant advantages” available to residents of the Bessemer Division, if a claim arises in the Bessemer Division, in being able to “litigate that case in the Bessemer Division before a jury selected exclusively from that Division,” in having “the benefit of judges dedicated to cases arising in that Division,” and in having “the convenience of a special local courthouse.” 961 So.2d at 117-18 n. 7. The flip side is that under the Bessemer Act, residents of the Birmingham Division enjoy these exact same “advantages” — litigation of a claim arising in the Birmingham Division before a jury selected exclusively from residents of that Division, judges dedicated to cases arising in that Division, and the convenience of a local courthouse. But the rest of the story reflects that the Birmingham Division residents enjoy all those perks plus the applicability of the venue laws of this state, a circumstance which cannot be said of residents of the Bessemer Division.

Moreover, although the main opinion observes that “[n]o such arguments were made to this Court by any party,” 961 So.2d at 117-18 n. 7, this Court is issuing a writ of mandamus, which has the effect of reversing the judgment of the trial court, and, in so doing, it finds that the defendants have a clear legal right to an interpretation. of the Bessemer Act that not only conflicts with the express language of the Bessemer Act but also, I respectfully submit, violates the Equal Protection Clause of the Fourteenth Amendment. Our cases repeatedly have refused to issue the writ of mandamus when the petitioner has not shown a clear legal right to the relief sought. See, e.g., F.L. Crane & Sons, Inc. v. Malouf Constr. Corp., 953 So.2d 366 (Ala.2006).

The views I express here are consistent with those expressed in my dissenting opinion in Ex parte Walter Industries, Inc., 879 So.2d at 557:

“Rather than apply to significantly different circumstances what is at best a less than obvious response to a legislative command, I would interpret § 2 of the Act as though it created a separate county for venue purposes in the context of claims not arising in Jefferson County. Section 2, after having provided that ‘jurisdiction and power shall be exclusive in, limited to, and extend over that portion of the territory of [the Bessemer Cutoff,]’ concludes with the statement that ‘all jurisdiction and power exercised therein at the time of the passage of this act by the circuit court of Jefferson county, as now held at Birmingham, and the common law jurisdiction and power of the city court of Birmingham is hereby expressly excluded.’ (Emphasis added.) I would interpret the references to exclusivity in § 2 as exclusive of that portion of Jefferson County not in the Bessemer Cutoff, and not exclusive of claims that might otherwise be appropriate under general venue laws not in conflict with the provisions for exclusivity within the divisions of Jefferson County. Under this construction of § 2, citizens residing in the Bessemer Cutoff would enjoy the same venue privileges of all other citizens with respect to claims arising outside of the county in which they reside.”

But our cases have interpreted the Bessemer Act in a manner that engrafts limitations on venue not readily apparent from the text of the Bessemer Act. We can either put our eyes out tracing the threads of decisions over the years and weaving them into the result we reach today, or we can recognize that we have created a monster and that it is time for it to be slain. Further, we should not worship at the altar of stare decisis in order to perpetuate a discriminatory treatment of citizens residing in separate parts of the same county, contrary to a reasonable construction of §§ 2 and 6. See Ex parte Quality Cas. Ins. Co., 962 So.2d 242, 247 (Ala.2006):

“This Court has great respect for the doctrine of stare decisis; at the same time, ‘we should not blindly continue to apply a rule of law that does not accord with what is right and just.’ Ex parte State Farm Fire & Casualty Co., 764 So.2d 543, 545 (Ala.2000).
“ ‘ “The doctrine of stare decisis tends to produce certainty in our law, but it is important to realize that certainty per se is but a means to an end, and not an end in itself. Certainty is desirable only insofar as it operates to produce the maximum good and minimum harm and thereby to advance justice.... When it appears that the evil resulting from a continuation of the accepted rule must be productive of greater mischief to the community than can possibly ensue from disregarding the previous adjudications on the subject, courts have frequently and wisely departed from precedent, 14 Am.Jur., Courts, § 126.” ’
“State Farm, 764 So.2d at 545 n. 3 (quoting Fox v. Snow, 6 N.J. 12, 25, 76 A.2d 877, 883-84 (1950)).”

Under a construction of the Bessemer Act faithful to its text, we are spared an imaginative and creative exercise in trying to come up with a rational basis for significantly disfavoring citizens of Bessemer in 1919 at their newly recognized courthouse. I must therefore respectfully dissent.

PARKER, J., concurs.

      . The case-management order divides the actions into separate trial groups and staggers discovery by group. The Tuscaloosa plaintiffs are in a group as to which discovery has been substantially undertaken. Although discovery has not been completed as to most plaintiffs, the defendants suggest that half of the 1,675 actions arose outside the Bessemer Division.

      . The history of the Bessemer Act and a discussion of many of the cases interpreting it can be found in Ex parte Walter Industries, Inc., 879 So.2d 547, 549-52 (Ala.2003).

      . The defendants state that they have "repeatedly argued that should pendent venue apply, the requirements [in § 6-3-7(c) ] are not satisfied.” (Reply brief at 4.) However, in their petition for the writ of mandamus, the defendants state only that they argued the issue to the trial court. (Petition at 6.) The petition does not present this issue to this Court, nor does it cite any authority or discuss any facts that would support the argument that the requirements of § 6-3-7(c) have not been satisfied.

      . Rule 82(c) states: “Where several claims ... have been joined, the suit can be brought te any county in which any one of the claims could have properly been brought.”

      . Section 2 of Act No. 99-249 states that "nothing [in Act No. 99-249] shall change, amend or otherwise affect more specific provisions in other chapters which provide for where actions may be filed....” Even though the Bessemer Act is not codified in a chapter of the Alabama Code, this language indicates a clear legislative intent that specific venue provisions, such as the Bessemer Act, were not affected by the revision of § 6-3-7.

      . The dissenting opinion states that the construction of the Bessemer Act in this opinion creates a violation of the Equal Protection Clause of the United States Constitution in that it treats the Bessemer Division as “an illegitimate stepchild of a court,” makes residents of that Division "victims of discriminatory treatment,” "blatantly favors Birmingham Division residents,” and treats citizens who happen to reside in Bessemer as “second class.” No such arguments were made to this Court by any party.
      The dissent fails to give due weight to the fact that, in enacting the Bessemer Act, the legislature afforded residents of the Bessemer Division significant advantages over others in Jefferson County. If a claim arises in the Bessemer Division, its residents may litigate that case in the Bessemer Division before a jury selected exclusively from that Division. Bessemer Division residents also have the benefit of judges dedicated to cases arising in that Division and the convenience of a special local courthouse. In this case, the plaintiffs whose claims arose in Bessemer enjoy those very privileges. Far from victimizing residents of the Bessemer Division or treating them as "second class,” the Bessemer Act accords them a package of special privileges not given others in Jefferson County.
      Equal-protection concerns arise in the absence of “a plausible policy reason for a classification.” Fitzgerald v. Racing Ass’n of Central Iowa, 539 U.S. 103, 107, 123 S.Ct. 2156, 156 L.Ed.2d 97 (2003). There certainly is a plausible policy reason for the legislature’s creation of the Bessemer Division and its grant to residents of the western section' of Jefferson County — a geographically large county — of the convenience of a local courthouse, judges devoted to cases arising in that Division, and locally situated juries. In granting these privileges, which also entail inconveniences to non-Bessemer Division litigants made parties in that Division, the legislature clearly had the authority to limit the reach of the court in that Division. Even though certain limitations may accompany the palpable benefits accorded residents of the Bessemer Division under the Act, certainly the Bessemer Act, as we interpret it, contains no arbitrary classification that violates equal-protection rights under the United States Constitution.

      . Section 6-3-2(a)(3) states:
      "(a) In proceedings of a legal nature against individuals:
      "(1) All actions for the recovery of land, of the possession thereof or for a trespass thereto must be commenced in the county where the land or a material part thereof lies.
      "(2) All actions on contracts, except as may be otherwise provided, must be commenced in the county in which the defendant or one of the defendants resides if such defendant has within the state a permanent residence.
      "(3) All other personal actions, if the defendant or one of the defendants has within the state a permanent residence, may be commenced in the county of such residence or in the county in which the act or omission complained of may have been done or may have occurred.”

      . We are not here confronted with the entirely different circumstance of an attempted joinder of a coplaintiff pursuant to § 6-3-7(c) whose claim arose in the Birmingham Division, because the claims of the coplaintiffs in this proceeding arose in Tuscaloosa County.


source: Caselaw Access Project

author: NAJBERS, Chief Justice.

license: Public Domain

text:
    Audie Van FOWLER v. James JOHNSON, Sheriff of Baldwin County.
    1041379.
    Supreme Court of Alabama.
    Dec. 29, 2006.

      W. Gregory Hughes, Mobile, for appellant.
    E.L. McCafferty III of Vickers, Riis, Murray & Curran, L.L.C., Mobile, for ap-pellee.
   On Application for Rehearing

NAJBERS, Chief Justice.

This Court’s no-opinion affirmance of August 11, 2006, is withdrawn, and the following opinion is substituted therefor.

Audie Van Fowler appealed a judgment upholding his termination from employment as a deputy sheriff by James Johnson, the sheriff of Baldwin County. We affirm.

Facts and Procedural History

Effective December 2002, the sheriffs office for Baldwin County (“the sheriffs office”) established its own personnel merit system pursuant to Act No. 2002-463, Ala. Acts 2002, codified at § 45-2-234 et seq., Ala.Code 1975 (“the sheriffs personnel merit system”). That Act provides that the sheriffs office would adopt rules and regulations applicable to dismissals, suspensions, and other disciplinary action against employees covered by the sheriffs personnel merit system (“merit employees”). Ala.Code 1975, § 45-2-234.03. Act No. 2002-463 also established the Sheriffs Office Personnel Appeals Board (“the appeals board”) to enforce the regulations of the sheriffs personnel merit system, conduct administrative hearings on appeals by merit employees concerning disciplinary actions, and make recommendations to the sheriff as to whether preliminary disciplinary decisions should be affirmed, reversed, or modified. See Ala.Code 1975, §§ 45-2-234.06, 45-2-234.07, 45-2-234.08, and 45-2-234.09. The Act further provides that, after receiving a recommendation from the appeals board concerning the discipline of a merit employee, the sheriff has the final responsibility to approve, disapprove, or modify the appeals board’s recommendation. Ala.Code 1975, § 45-2-234.09(c)(3).

The operative events leading to Fowler’s termination occurred in the first quarter of 2003. Fowler had been employed as a deputy sheriff in Baldwin County for approximately 14 years when the sheriffs personnel merit system was created. Given that longevity, Fowler was a merit employee who had statutory rights related to his employment, including the right not to be terminated except for cause. See Ala. Code 1975, §§ 45-2-234.01(6) and 45-2-234.03.

Early in 2003 Fowler became the subject of a criminal investigation related to his personal finances and the mishandling of funds in the estate of Susan Greek, for which Fowler’s wife had been appointed conservator (“the Greek estate”). Fowler was placed on administrative leave with pay on February 11, 2003, pending that investigation. Subsequently, Fowler was indicted by a Baldwin County grand jury on three counts — theft, conspiracy, and exploitation of assets in the Greek estate. Fowler’s wife was also indicted on similar charges.

Fowler received a telephone call from his attorney on March 26, 2003, advising him and his wife to surrender to the authorities at the county jail on the following day. When he arrived at the jail on March 27, 2003, Fowler met with two law-enforcement representatives — Lt. Charles Jones of the sheriffs office and Stan Stabler of the Alabama Bureau of Investigation. At the jail, Stabler served Fowler with an arrest warrant and advised Fowler of the nature of the charges against him. Further, on March 27, 2003, Lt. Jones delivered to Fowler a letter dated March 26, 2003, signed by the sheriff stating:

“Re: Notice of Termination
“Dear Mr. Fowler:
“Your employment with the Sheriffs Office is hereby terminated effective this date.
“You have the right to appeal this action with the Sheriffs Office Personnel [Appeals] Board. To appeal, you may contact Lynne Tedder, Personnel Officer, at (251)_-_...”

While Fowler was at the jail on March 27, Lt. Jones told Fowler that he was being terminated because an indictment had been filed against him. Fowler was then booked into the jail; he was released later that day after posting bail. Fowler was in custody for a period of approximately 30-45 minutes on March 27. Lynne Tedder, the personnel officer for the sheriffs personnel merit system (“the personnel officer”), also sent the sheriff a memorandum on March 27 stating that Fowler’s employment was terminated effective March 26, 2003, the last date through which he was paid.

On March 31, 2003, Fowler’s attorney appealed the termination of Fowler’s employment by writing the personnel officer. Fowler’s attorney also asked the personnel officer to furnish a copy of the personnel guidelines for the sheriffs office. The review of the disciplinary action against Fowler was the first administrative proceeding since the creation of the sheriffs personnel merit system. In an April 2, 2003, letter, the personnel officer advised Fowler’s attorney that the sheriffs office had not printed and disseminated its own guidelines but was following the practices in the personnel policies and procedural manual used by the Baldwin County Commission (“the manual”). The personnel officer sent Fowler’s attorney a copy of the manual and notified him of a tentative hearing date before the appeals board to consider Fowler’s appeal.

The manual contained multiple provisions related to termination, suspension, or demotion of a merit employee (hereinafter collectively “disciplinary actions”). The manual provides that the consideration of a disciplinary action generally involves three steps: (a) a predisciplinary hearing; (b) a hearing before a personnel appeals board; and (c) an appeal to the circuit court for a trial de novo. The key provisions in the manual relating to those steps are summarized as follows:

1. Prior to the institution of a disciplinary action, the employer of the merit employee “shall afford the employee due process in the form of a predisciplinary hearing. Written notice of the reasons for the termination ... must be given the employee at least twenty-four (¾) hours prior to the predisciplinary hearing.” (manual, p. 38);
2. The predisciplinary hearing can be bypassed if “extraordinary situations” exist. Those situations are where (a) retention of the worker would “result in damage to public property,” (b) retention would “result in injury whether to the employee, a fellow employee, or to the general public,” (c) “the employee is confined in jail or prison under a writ of arrest or other judicial process,” (d) the employee is under the influence, or has in his possession, an intoxicating beverage, illegal drug, narcotic, or controlled substance, or (e) the “personal conduct of the employee is abusive or disruptive to the orderly conduct of the office or department.” (manual, p. 38);
3. If the employer does not hold a pre-disciplinary hearing because of an extraordinary situation, the employer “shall, nevertheless, furnish written notice of the reasons for the termination or suspension unthin 21* hours of such dismissal or suspension.” (manual, p. 38);
4. A merit employee may appeal an adverse disciplinary action to a personnel appeals board. That board will conduct an administrative hearing to review the action. In conducting the hearing, the appeals board may subpoena witnesses, compel production of documents, administer oaths; the parties may be represented by counsel at the hearing, and the board may receive testimony without applying rules of evidence, (manual, pp. 34-35);
5. Within seven days after the employer receives a notice that the employee intends to appeal a disciplinary action to the appeals board, “the personnel [officer] shall file with the chairman of the board and mail to the employee by certified mail a statement specifying the charges against the employee on which the disciplinary action is based. ” (manual, p. 35);
6. “Any employee may be dismissed for the good of the County service. Reason(s) for dismissal may include, but shall not be limited to:
“-Incompetency or inefficiency in the performance of duties;
“-Conviction of a felony offense or of a misdemeanor involving moral turpitude;
“-Incapacity for proper performance of duties;
“....” (manual, pp. 38-39); and
7. After final administrative action concerning a disciplinary action, “the employee shall be entitled to, within 7 days, appeal to the Circuit Court of Baldwin County for a nonjury trial de novo.” (manual, p. 34.)

(Emphasis added.)

The sheriffs office did not conduct a predisciplinary hearing before terminating Fowler’s employment. Further, the sheriffs office did' not furnish Fowler a written notice within 24 hours after his dismissal specifying the reasons for his termination, as required by the manual. Additionally, the personnel- officer did not provide Fowler a statement by certified mail within seven days of Fowler’s appeal of his termination specifying the charges on which the disciplinary action was based.

Fowler’s appeal was heard by the appeals board on April 17, 2003 (“the administrative hearing”). Larry Milstid, the chief deputy in the sheriffs office, represented the sheriff at that hearing and presented evidence to support Fowler’s termination. No witnesses other than Milstid testified for the sheriff. Fowler — then under indictment — did not testify at the administrative hearing, but his attorney participated in the hearing.

Milstid’s presentation at the administrative hearing addressed events related to Fowler’s indictment and his employment history over his 14-year career. Approximately 15 minutes before that hearing, Milstid provided Fowler’s attorney with a document summarizing Fowler’s work history. That document noted allegations of mishandling of funds in the Greek estate and Fowler’s indictment and summarized events concerning eight employment matters unrelated to the indictment. Four of those eight events led to disciplinary warnings against Fowler, and the other four were matters that had been investigated by the sheriffs office and for which no disciplinary action had been taken. The document that summarized Fowler’s employment was presented to and considered by the appeals board. Milstid stated that he introduced that document and presented facts about Fowler’s entire personnel history because personnel boards in Baldwin County had requested that type of background information in other proceedings in which he had participated.

The chairman of the appeals board sent the following letter to Fowler’s attorney on April 21, 2003:

“Dear Mr. Bolton:
“We have an appreciation for Mr. Fowler’s position that [the sheriffs March 26, 2003,] termination letter could have been more detailed. However, the Baldwin County Sheriffs Office Personnel Appeals Board is in agreement with the action taken by the Sheriff.
“Sincerely,
7s/ Sgt. Robert E. King
“Chairman”

The record does not reflect that the sheriff formally accepted the recommendation of the appeals board to sustain Fowler’s termination. However, on June 4, 2003, the personnel officer made an entry in Fowler’s employment file that stated that Fowler had been “terminated due to grand jury indictment on three felony charges.”

On April 29, 2003, Fowler sued the sheriff and the appeals board in the Baldwin Circuit Court, asserting claims arising from the termination of his employment. Thereafter, Fowler filed an amended complaint in that action in which he added the Baldwin County Commission (“the Commission”) and Baldwin County (“the County”) as defendants. In counts I and II of that amended complaint, Fowler asserted claims alleging violations of his procedural due-process rights under the Alabama Constitution of 1901. Those due-process claims were based primarily on allegations that the sheriffs office had failed to provide Fowler written notices of the reasons for his termination or to conduct a full and impartial administrative hearing. As relief, Fowler requested that the trial court set aside the decision of the sheriff and the appeals board to terminate his employment, reinstate him as a deputy sheriff with back pay, and award compensatory and punitive damages and attorney fees for the alleged violation of his due-process rights.

On August 6, 2003, the County and the Commission filed a motion to dismiss or to strike the claims asserted against them. After those parties argued that neither could be held vicariously liable for the sheriffs actions, the trial court granted that motion on August 29, 2003. Following the dismissal of the County and the Commission, the sheriff and the appeals board were the only remaining defendants in the trial court.

On June 30, 2004, the sheriff and the appeals board moved for a summary judgment on all claims asserted by Fowler against them. In that motion, they argued that they were immune from liability under Alabama law and that the trial court should sustain their respective decisions to terminate Fowler’s employment. On September 1, 2004, the trial court granted the sheriff and the appeals board’s motion on “all claims except [those to be heard at] the de novo hearing.”

Following discovery, the trial court held a nonjury trial on November 30, 2004, concerning Fowler’s termination. Fowler, Milstid, Stabler, and the sheriff testified at that trial. The trial court received testimony and heard arguments from counsel on a wide-ranging set of topics. Those included the criminal investigation of Fowler’s finances; the indictment and other events in the first quarter of 2003 that led to the termination of Fowler’s employment; the reasons for the termination; the course of. events at the administrative hearing; evidence by Fowler on damages he allegedly suffered because of the termination of his employment; testimony from Fowler that, before the administrative hearing, the sheriffs office did not provide him any written noticé specifying the reasons his employment was being terminated; testimony from witnesses and arguments of counsel about the applicability of the manual to Fowler’s disciplinary action; and testimony supporting Fowler’s claims that he had been denied procedural due process.

The trial court entered the following order on December 16, 2004:

“After reviewing the documents presented, hearing testimony and arguments of the attorneys, the Court finds that [Fowler’s] due process rights were not violated and the Defendant, James B. Johnson, Sheriff, acted properly and within his authority in the discharge of [Fowler] from employment. APPEAL DISMISSED.”

Fowler filed a postjudgment motion for a new trial. The trial court denied that motion, but on February 16, 2005, amended the last sentence of its December 16, 2004, order to read that “[Fowler’s] appeal of the dismissal of employment and all other claims is DENIED.” Fowler appealed the judgment entered -against him on February 16, 2005, on his claims against the sheriff. On August 11, 2006, we affirmed without opinion the trial court’s judgment sustaining the sheriffs actions. Fowler thereafter applied for a rehearing.

Standard of Review

The usual standard for judicial review of decisions by administrative agencies was stated in Mobile County Personnel Board v. Tillman, 751 So.2d 517 (Ala.Civ.App.1999):

“An administrative agency’s decision will not be reversed unless it is arbitrary, capricious, or legally incorrect. This court and the trial court must give substantial deference to an agency’s interpretation of its rules and regulations. ‘[A]n agency’s interpretation of its own regulation must stand if it is reasonable, even though it may not appear as reasonable as some other interpretation.’”

751 So.2d at 518 (citations omitted).

Here, the manual, which was used in Fowler’s disciplinary action, contemplated a novel step following the administrative hearing — a trial de novo in the circuit court. When the trial court holds such a trial, the ore tenus standard applies in our review of any findings of fact made by that court. A presumption of correctness accompanies the trial court’s findings of fact based on disputed oral testimony. Woodland Grove Baptist Church v. Woodland Grove Cmty. Cemetery Ass’n, Inc., 947 So.2d 1031 (Ala.2006); Weeks v. Wolf Creek Indus., Inc., 941 So.2d 263 (Ala.2006). Under the ore tenus standard, the judgment of the trial court may not be disturbed unless its findings are “ ‘clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.’ ” Pollard v. Unus Props., LLC, 902 So.2d 18, 23 (Ala.2004)(quoting American Petroleum Equip. & Constr., Inc. v. Fancher, 708 So.2d 129, 132 (Ala.1997)). A de novo standard applies in our review of the trial court’s conclusions of law or its application of law to the facts. Padgett v. Conecuh County Comm’n, 901 So.2d 678, 685 (Ala.2004); American Petroleum Equip., 708 So.2d at 132.

Discussion

A. Was the manual applicable to Fowler’s disciplinary action?

Fowler’s procedural due-process claims are based on the sheriffs failure to follow certain procedural steps in the manual before terminating his employment. As a threshold issue, we address whether the provisions in the manual were binding.

On April 2, 2003, the personnel officer advised Fowler’s attorney that, in the absence of personnel procedures tailored for the newly formed sheriffs personnel merit system, the manual would be used for the administrative proceedings related to Fowler’s disciplinary action. Notwithstanding that representation, the sheriff argues that Act No. 2002-463 (which established the sheriffs personnel merit system) does not contemplate that the procedural safeguards in the manual apply to the sheriffs personnel merit system. We disagree. Because the personnel officer designated the manual as the guideline for the administration of Fowler’s disciplinary action, the sheriff is estopped to deny the applicability of the manual or its provisions.

B. Was the fact that Fowler was indicted cause for terminating his employment?

Fowler was a merit employee who could be disciplined only for cause. Pages 38-39 of the manual list examples of “cause” for termination. One of those is “conviction of a felony or of a misdemeanor involving moral turpitude.”

The sheriffs office took the position in the administrative hearing and at the trial de novo in the circuit court that Fowler’s employment had been terminated because of his March 2003 felony indictment. Fowler argues that he was wrongfully terminated because the manual required that he be convicted of, not merely indicted for, a felony before the sheriff would have cause for terminating his employment. Fowler’s argument is without merit for two reasons.

First, a felony conviction was not a condition precedent to Fowler’s termination. Page 38 of the manual states that a merit employee could be “dismissed for the good of the County service.” In the provisions immediately following this statement, the manual states that “reasons for dismissal would include, but not be limited to, ... a felony conviction.” Therefore, the just-cause standard on page 38—“for the good of the County service”—is broader than, and is not limited to, a felony conviction.

Second, the trial court heard substantial testimony in the November 2004 trial indi-eating that Fowler’s indictment was detrimental to the County service. Specifically, Milstid testified that, if Fowler had continued his employment after his indictment, he would not have been effective in his work as a deputy sheriff because Fowler would not have had the respect of his peers or of the public. The sheriff also testified that a law-enforcement officer under indictment would not have the trust of the public or of fellow law-enforcement officials. Fowler himself testified that a law-enforcement officer could not effectively carry out the laws of the State under the cloud of an indictment.

In light of the sheriffs authority to dismiss a merit employee “for the good of the County service” and the testimony at the November 2004 trial concerning the negative impact of Fowler’s indictment on his work as a deputy sheriff, the trial court’s finding that the sheriff had just cause to terminate Fowler’s employment will not be disturbed.

C. Were Fowler’s procedural due-process rights violated?

In addition to rejecting Fowler’s wrongful-termination claim, the trial court found that in the process of terminating Fowler’s employment the sheriff did not violate Fowler’s due-process rights. Fowler argues that that finding was erroneous and that his termination was “void because of the [sheriffs] failure to comply with the notice and pre-disciplinary requirements [in the manual].”

Procedural due process is afforded when an individual receives notice and an opportunity to be heard that is appropriate to the nature of his interest. Cleve land Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Page 38 of the manual stated that merit employees should receive a predisci-plinary hearing before dismissal. The sheriffs office did not conduct that hearing in Fowler’s case. In Todd v. Kelley, 783 So.2d 31 (Ala.Civ.App.2000), the Court of Civil Appeals discussed the significance of such a hearing in a case concerning the dismissal of a police officer protected under the City of Millport’s merit system:

“Because Todd [the police officer] was a merit employee and therefore could be dismissed only for cause, he had a property right in continued employment with the City. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Thus, the City could not deprive him of this right without constitutionally adequate proceedings, or due process. Loudermill, 470 U.S. at 541, 105 S.Ct. 1487. Due process for a tenured public employee requires a pretermination opportunity to respond to the employer’s charges, coupled with adequate post-termination administrative procedures. Id. at 547-48, 105 S.Ct. 1487. Although the pretermination hearing ‘need not be elaborate,’ id. at 545, 105 S.Ct. 1487, due process mandates ‘ “some kind of a hearing” prior to the discharge of an employee who has a constitutionally protected property interest in his employment.’ Id. at 542, 105 S.Ct. 1487 (quoting Board of Regents v. Roth, 408 U.S. at 569-70, 92 S.Ct. 2701).”

783 So.2d at 44. The Todd court held that the failure of the City of Millport to conduct a predisciplinary hearing was a violation of the officer’s procedural due-process rights. 783 So.2d at 44-45.

Here, as in Todd, Fowler had a property right in continued employment with the sheriffs office because he could be dismissed only for cause. Notwithstanding, the sheriff argues that a predisciplinary hearing was not required before Fowler’s employment was terminated because two of the “extraordinary situations” contemplated on page 38 of the manual existed and allowed the sheriff to bypass that step: (a) the “employee was confined in jail or prison,” and (b) the “personal conduct of [Fowler was] abusive or disruptive to the orderly conduct of the office.” If either of those situations existed, the sheriffs failure to conduct a predisciplinary hearing is excused. Evaluating the evidence, however, we conclude that neither exception applied. Fowler was confined at the county jail for 30-45 minutes on March 27, 2003, the day after his termination was effective; therefore, the first exception is inapplicable because he was not “confined in jail” when he was terminated. Moreover, before his termination on March 26, Fowler had been on administrative leave with pay for almost six weeks. The sheriffs argument that a predisciplinary hearing could not be held on or before March 26 because Fowler- — then absent from work for over a month — might exhibit conduct that would be “abusive or disruptive” to the sheriffs office strains credibility. Accordingly, Fowler’s claim that the sheriff denied him procedural due process by failing to conduct a predisciplinary hearing is meritorious.

Second, the sheriff did not furnish Fowler written notice specifying the reasons for his termination. The manual states that such notices should be given (a) 24 hours before the predisciplinary hearing, if one is held, (b) within 24 hours after the employee’s termination if a prediscipli-nary hearing was not conducted, and (c) within 7 days after an appeal to the appeals board. The sheriff argues that his failure to provide Fowler those written notices was harmless because Fowler was orally advised on March 27, 2003, that his employment was being terminated as a result of the indictment and because Fowler had an opportunity to call witnesses and to contest his termination at the administrative hearing. We disagree.

Fowler was prejudiced by the sheriffs failure to specify in writing the reasons for the termination of Fowler’s employment. The sheriffs office did not limit its presentation in the April 2003 administrative hearing to Fowler’s indictment. Indeed, Milstid, the sheriffs representative at that hearing, made a presentation to the appeals board concerning Fowler’s entire 14-year work record. That evidence, which included written documentation, addressed eight events that were unrelated to the indictment. Moreover, Milstid gave Fowler’s attorney notice only 15 minutes before that hearing that the sheriff would be addressing the entirety of Fowler’s work career at the hearing. Under these facts, the administrative hearing before the appeals board was infirm because Fowler was not provided a fair opportunity to subpoena and call witnesses, to present testimony, and otherwise to address events that transpired over a 14-year period.

Accordingly, in view of the sheriffs failure to conduct a predisciplinary hearing or to provide Fowler the written notices specifying the reasons for his termination, the trial court erred when it found that the sheriff had not violated Fowler’s procedural due-process rights.

D. Remedy for procedural due-process violations

We next consider what remedy should apply on Fowler’s procedural due-process claims. In analyzing this remedial issue, we first consider that any procedural due-process infirmities in the administrative process were cured no later than the November 30, 2004, trial in the circuit court. By that time, Fowler had full notice of the reasons for the disciplinary action against him, had received an opportunity to conduct discovery in the case in the circuit court, and had had ample opportunity to prepare for the trial — his second opportunity to contest the termination.

On appeal, neither party has addressed what remedy should apply when, as here, the decision to terminate an employee’s employment was valid, but procedural due-process violations occurred. In Enterprise Fire Fighters’ Ass’n v. Watson, 869 F.Supp. 1532 (M.D.Ala.1994), the United States District Court for the Middle District of Alabama crafted a remedy for a procedural due-process violation in a situation similar to the one here. Watson, a merit-system employee, was discharged after he had made a false statement to his supervisor. Like Fowler, Watson did not receive a predisciplinary hearing before his employment was terminated, as was contemplated in the applicable personnel manual. Watson appealed his termination, but that decision was upheld following an administrative hearing conducted nine days after his dismissal. 869 F.Supp. at 1536.

Watson then sued his employer under 42 U.S.C. § 1983 and sought reinstatement and damages for alleged violations of his procedural due-process rights. As did the trial court here, the United States District Court in Watson found that the employee had no substantive right to continued employment and sustained the decision at the administrative-appeals level to uphold the termination. However, that court also determined that Watson had been denied procedural due process because his employer had failed to conduct a prediscipli-nary hearing before his termination. 869 F.Supp. at 1539. In view of that violation, the federal district court ruled (a) that Watson’s termination was unlawful until the administrative appeal of his discharge was conducted, and (b) that, as damages for the violation of his procedural due-process rights, he should receive back pay for the nine-day period between his termination and the administrative appeal. 869 F.Supp. at 1542.

One Alabama case suggests that reinstatement and back pay are appropriate remedies in an action by a merit-system employee against a sheriff. In Ex parte Woodward, 859 So.2d 425 (Ala.2003), two merit-system employees whose employment was terminated sued the sheriff of Jefferson County in his individual and official capacities; those discharged employees also joined the Jefferson County personnel board as a defendant in their action. Even though this Court decided that the sheriff could not be sued in his individual capacity, footnote 4 of the Woodward opinion stated:

“We note that the trial court may choose to reinstate [the two discharged employees] with back pay; our opinion today merely stands for the proposition that [the discharged employees] may not obtain back pay or any other monetary damages from Woodward in his individual capacity.”

859 So.2d at 427.

In light of the principles in Watson and footnote 4 of Woodward, it could be argued that Fowler was entitled to back pay for the period between March 27, 2003 — the day after his employment was terminated — and November 30, 2004 — the date of the trial de novo in the circuit court. However, given the procedural posture of this case, Alabama law precludes the entry of an order requiring the sheriff to compensate Fowler for back pay for even that limited period.

Here, the sheriff is the sole appellee. Article I, § 14, Ala. Const. 1901, provides that “the State of Alabama shall never be made a defendant in any court of law or equity.” The sheriff is an executive officer of the State under Article I, § 112, Ala. Const.1901. A suit against a sheriff “essentially [is] a suit against the state.” Parker v. Amerson, 519 So.2d 442, 445 (Ala.1987) (quoting Montiel v. Holcombe, 240 Ala. 352, 199 So. 245 (1940)). In Alabama, actions may be brought against a sheriff related to execution of his duties only under the following circumstances:

“(1) to compel him to perform his duties, (2) to compel him to perform ministerial acts, (3) to enjoin him from enforcing unconstitutional laws, (4) to enjoin him from acting in bad faith, fraudulently, beyond his authority, or under mistaken interpretation of the law, or (5) to seek construction of a statute under the Declaratory Judgment Act if he is a necessary party for the construction of the statute.”

519 So.2d at 443.

In Employees of the Montgomery County Sheriff’s Department v. Marshall, 893 So.2d 326 (Ala.2004), this Court considered the “ministerial acts” exception and the extent of a sheriffs immunity on a claim to pay compensation to his employees. In Marshall, employees in Montgomery County’s sheriffs office sued the sheriff and the county commission seeking overtime pay attributable to guard service that those employees had performed at the county jail. The sheriff argued that he was immune from that claim. The claimants responded that payment of compensation by a sheriff to his own employees fell under the “ministerial act” exception to state immunity. Noting that § 14-6-105, Ala.Code 1975, provides that counties, not. the State, are responsible for funding the expense of guards at county jails in Alabama, the Marshall Court held that the employees had “failed to establish .that payment of overtime compensation is a ministerial act the sheriff can be compelled, to perform.” 893 So.2d at 331. Accordingly, it affirmed a summary judgment for the sheriff on breach-of-contract and quantum meruit claims against him in both his official and individual capacities.

Benefits, salaries, and other personnel activities in the sheriffs office are paid through the general fund of Baldwin County. Section 45-2-234.04, Ala.Code 1975, provides:

“All employees of the office of Sheriff of Baldwin County shall continue to participate and be serviced in matters of health insurance, life insurance, and disability insurance by the Baldwin County Commission. The office of sheriff shall administer all matters regarding personnel overtime, longevity, subsistence, salaries, retirement, Social Security, workers’ compensation, and retirement cost-of-living for employees of the sheriffs office. The financial accounting and maintenance of these activities shall be from an account of the office of sheriff with a local banking institution and from funds which are provided for these' activities from the county’s general fund budget.”

(Emphasis supplied.) Applying the principle in Marshall here, we conclude that a court may not order the sheriff to compensate Fowler for back pay or benefits during the period preceding the November 2004 trial. As decided in Marshall, sheriffs are immune from liability for such compensation if the State is not the funding mechanism. Accordingly, Fowler’s application for rehearing is denied because of the broad scope of the sheriffs immunity under the Alabama Constitution.

Conclusion

For the reasons stated above, Fowler’s application for rehearing is denied.

APPLICATION OVERRULED; NO-OPINION AFFIRMANCE OF AUGUST 11, 2006, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

SEE, HARWOOD, STUART, and BOLIN, JJ., concur.

      . Act No. 2002-463 became effective on December 12, 2002, upon ratification of Amendment No. 717 to the Alabama Constitution of 1901.

      . The Eve members of the appeals board were selected after Fowler had filed his appeal. Two members were appointed by the sheriff; two were elected by employees of the sheriff's office; and those four selectees chose the fifth member. See Ala.Code 1975, § 45-2-234.06(b).

      . The record does not include a transcript of the administrative hearing. However, evidence concerning the course of events at that hearing was presented at a de novo nonjury trial held in the Baldwin Circuit Court on November 30, 2004.

      . Article I, § 6, Ala. Const. 1901, provides that a person may not be deprived of "life, liberty or property, except by due process of law.” Fowler did not allege violation of federal due-process rights under 42 U.S.C. § 1983.

      . The appeals board was also a defendant in Fowler’s action. The appeals board has authority under Ala.Code 1975, § 45-2-234.08(f), to affirm, revise, and amend any previous personnel decision in the sheriff's office after a hearing, but the sheriff is the final authority on personnel actions. In his briefs to this Court, Fowler variously references the sheriff and his department, but does not make any argument or specific claim concerning the appeals board that is separate from the claims made against the sheriff. Further, Fowler did not name the appeals board as an appellee in his notice of appeal and docketing statement. Under these circumstances, Fowler has waived any claim against the appeals board. See Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (holding that " ‘[w]hen an appellant fails to properly argue an issue, that issue is waived and will not be considered’ ” and stating that " ‘an appeals court will consider only those issues properly delineated as such, and no matter will be considered on appeal unless presented and argued in brief' ” (quoting Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996), and Braxton v. Stewart, 539 So.2d 284, 286 (Ala.Civ.App.1988), respectively)).

      . Neither party has directed us to any Alabama authority in which a trial de novo was conducted in the circuit court following the administrative review of a disciplinary action against a merit employee.

      . The sheriff argues that Act No. 2002-463 granted Fowler a general right to appeal a disciplinary action but did not contemplate the comprehensive notice and three-step hearing process in the manual. Further, the sheriff also argues that, when Fowler was originally employed by the sheriff’s office, his commission could be terminated for any reason. That at-will employment concept is diametrically opposed to the provisions on pages 38-39 of the manual that require cause for imposing a disciplinary action against a merit employee.

      . Fowler and other permanent employees in the sheriffs office who had been employed more than six months before transferring into the sheriff's personnel merit system were covered under merit-system regulations. See Ala. Code 1975, §§ 45-2-234.01(6), 45-2-234.02, and 45-2-234.03.

      . The Jefferson County personnel board remained a party in Ex parte Woodward after the claim against the sheriff was dismissed.

      . Fowler did not appeal the trial court's dismissal of his claims against the County and the Commission. Further, as discussed in note 5 above, he has waived any claim against the appeals board.

      . The Montgomery County Commission, the funding agency for the Montgomery County jail, remained a defendant in Marshall after the summary judgment was entered for the sheriff.

      . An appellate court may affirm a judgment of the trial court for any valid reason, regardless of whether that reason was considered by the trial court. General Motors Corp. v. Stokes Chevrolet, Inc., 885 So.2d 119, 124 (Ala.2003).


author: MURDOCK, Judge.

text:
    Innes McINTYRE and 4M, LLC v. SATCH REALTY, INC.
    2041102.
    Court of Civil Appeals of Alabama.
    Dec. 29, 2006.

      Matthew T. Ellis of Parnell & Crum, P.A., Montgomery, for appellants.
    George B. Azar and Elizabeth C. Wible of Azar & Azar, L.L.C., Montgomery; and Lewis B. Hickman, Jr., Montgomery, for appellee.
   MURDOCK, Judge.

Innes McIntyre and 4M, LLC (“4M”), appeal from the Montgomery Circuit Court’s denial of their “Motion for Relief from Judgment,” filed pursuant to Rule 60(b)(1), Ala. R. Civ. P. For the reasons discussed below, we dismiss the appeal.

On November 8, 2004, Satch Realty, Inc. (“Satch Realty”), filed a complaint against 4M and its managing member, Innes McIntyre. Satch Realty alleged that the parties had entered into an agreement whereby Satch Realty was given the exclusive right to act as McIntyre’s and 4M’s sole agent for the purpose of finding an entity to lease a parcel of property in Georgia that McIntyre and 4M owned (“the property”). Satch Realty alleged that it had obtained a lessee for the property but that McIntyre and 4M had failed to compensate it as provided for by the agreement.

On January 20, 2005, Satch Realty moved the trial court to enter a default judgment in its favor because McIntyre and 4M had not filed answers to the complaint. On January 26, 2005, the trial court entered a default judgment in Satch Realty’s favor and scheduled a damages hearing for March 1, 2005. Because the default judgment entered on January 26, 2005, did not include an assessment of damages, it was nonfinal. See Ex parte Family Dollar Stores of Alabama, Inc., 906 So.2d 892, 897 (Ala.2005).

On February 3, 2005, McIntyre and 4M filed an answer to the complaint and moved the trial court to set aside the default judgment. See Rule 55(c), Ala. R. Civ. P. In their motion to set aside the default judgment, they stated:

“That Defendant, Innes McIntyre, and Stephen Saunders, the president of the Plaintiff Corporation, have maintained a personal relationship over the past several years. Prior to retaining counsel, Innes- McIntyre and Stephen Saunders directly discussed several alternatives to resolving this dispute and Innes McIntyre was operating under the understanding that resolving the dispute between the parties was still a possibility. However, upon Defendants receiving notice that the Plaintiffs motion for a default judgment had been granted Defendants immediately consulted with and retained counsel to represent them in this suit.”

They further stated in their motion that they had a valid defense to Satch Realty’s action, although they did not elaborate on that defense.

On March 1, 2005, the trial court held a hearing on damages. On March 11, 2005, it entered a final default judgment in Satch Realty’s favor, awarding it $37,738. The trial court’s judgment did not refer to 4M and McIntyre’s pending motion to set aside the default judgment.

On March 25, 2005, the trial court scheduled a hearing for April 12, 2005. On April 22, 2005, following oral argument on 4M and McIntyre’s motion to set aside the default judgment, the trial court entered an order denying that motion.

On April 29, 2005, 4M and McIntyre, invoking Rule 60(b)(1), Ala. R. Civ. P., filed a “Motion for Relief from Default Judgment” to which they attached a memorandum of law and an evidentiary submission. In their memorandum of law, they addressed the three factors that a trial court should consider in determining whether to set aside a default judgment, as explained in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988). First, they elaborated on the meritorious defense to which they had alluded in their previous motion to set aside the default judgment by setting forth a detailed background of the facts surrounding the agreement into which the parties had entered. They argued that 4M was not liable to Satch Realty for compensation under the contract because, due to circumstances beyond its control, 4M was not able to put into effect the lease agreement with the prospective tenant that Satch Realty had procured for it. They argued that McIntyre could not be liable to Satch Realty because he did not enter into the agreement in his individual capacity, but signed the agreement only on behalf of 4M, as one of its members. McIntyre and 4M also argued'that Satch Realty would not be unfairly prejudiced by the trial court’s setting aside the default judgment. Finally, they argued that théir conduct that led to the entry of the default judgment against them was not culpable, essentially restating the argument they had set forth in their earlier motion to set aside the default judgment that, because of the prior personal relationship between McIntyre and Satch Realty’s president and the course of their settlement discussions following the filing of the action, McIntyre had assumed that Satch Realty would afford him and 4M the opportunity to file an answer beyond the 30-day period following service of the complaint.

On September 6, 2005, the trial court denied McIntyre and 4M’s Rule 60 motion for relief from judgment. On that same day, McIntyre and 4M appealed from the trial court’s denial of that motion.

McIntyre and 4M contend that the trial court erred when it denied their motion for relief from the default judgment because, they assert, all three of the Kirtland factors weighed in favor of setting aside the default judgment. They also contend that the trial court erred by failing to include in its order denying their motion for relief from the default judgment any demonstration that it had actually considered the three Kirtland factors.

It is the duty of this court to consider, ex mero motu when necessary, whether it has jurisdiction to consider the merits of an appeal. The timely filing of a notice of appeal is a jurisdictional act. Gunnison-Mack v. State Pers. Bd., 923 So.2d 319, 320 (Ala.Civ.App.2005). Having reviewed the record in this case, we conclude that the appeal in this case was untimely, and, as a result, we must dismiss the appeal.

The trial court entered a final default judgment in this case on March 11, 2005. Thereafter, it took up and considered, for the first time, McIntyre and 4M’s first motion to set aside the default judgment. Thus, the trial court treated their motion, filed before the entry of the final default judgment, as a postjudgment motion. Although McIntyre and 4M argue on appeal that their motion was directed at the January 26, 2005, nonfinal default judgment, the record fails to disclose that McIntyre and 4M objected to the trial court’s treatment of their motion as a postjudgment motion addressed to the final default judgment. In the absence of any objection from McIntyre and 4M as to the timing of the trial court’s consideration of their motion to set aside the default judgment, we must conclude that their motion to set aside the default judgment became a post-judgment motion, and therefore we, like the trial court, treat it as such.

The pendency of McIntyre and 4M’s motion to set aside the trial court’s March 11, 2005, final judgment tolled the time for taking an appeal from that judgment. See Rule 4(a)(3), Ala. R.App. P. The time for appeal began to run anew (and the judgment became final for purposes of Rule 60(b)), however, upon the denial of that postjudgment motion on April 22, 2005. Thus, the 42-day period for taking an appeal as to the trial court’s March 11, 2005, judgment expired on June 3, 2005. Rule 4(a)(1), Ala. R.App. P. McIntyre and 4M’s appeal in this case was filed on September 6, 2005, and, thus, is untimely.

As previously noted, following the denial of their Rule 55(c) motion to set aside the default judgment, McIntyre and 4M filed a Rule 60(b) postjudgment motion, seeking, once again, to have the default judgment set aside. Although McIntyre and 4M’s Rule 60(b) motion provided more factual detail than their previously denied Rule 55(c) motion had and although their Rule 60(b) motion actually explained the allegedly meritorious defenses to which they had merely alluded in their previous motion, “the relief sought reveals that [McIntyre and 4M were] simply attempting to have a second review of the [default] judgment and to have the trial court reconsider its previous denial of [their] post-judgment motion.” Foster v. Foster, 636 So.2d 467, 468 (Ala.Civ.App.1994). Rule 60(b), however, cannot serve as a basis for a motion that, in effect, seeks a reconsideration of matters already considered by the trial court in a previous postjudgment motion when the facts alleged in the Rule 60(b) motion “were known by the moving party at the time of his original [postjudgment] motion.” Ex parte Dowling, 477 So.2d 400, 403 (Ala.1985). Such a Rule 60(b) motion, and a subsequent appeal of the denial of such a motion, cannot be used as a substitute for an appeal of the trial court’s original judgment. See, e.g., Landers v. Landers, 812 So.2d 1212, 1216 (Ala.Civ.App.2001) (“Alabama precedent is clear that a Rule 60(b) motion may not be used to seek reconsideration of a trial court’s denial of a postjudgment motion, nor are Rule 60(b) motions substitutes for appeal.”); and Pace v. Jordan, 348 So.2d 1061 (Ala.Civ.App.1977) (having failed to obtain review by appeal following denial of his postjudgment motion for a new trial, the plaintiff may not obtain review pursuant to the filing of a Rule 60(b) motion, because that rule does not provide a substitute for an appeal).

As noted, the timely filing of a notice of appeal is a jurisdictional act. Gnnnison-Mack, supra. We therefore must dismiss the appeal for lack of appellate jurisdiction.

APPEAL DISMISSED.

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

BRYAN, J., recuses himself.

      . These factors are often referred to as the "Kirtland. factors.”

      . A nonfinal default judgment merges into, and becomes, a final judgment once a damages award is entered. See Ex parte Savage, 28 Ala.App. 440, 441, 186 So. 586, 587 (1939) (treating a motion to set aside a nonfinal default judgment that was filed after entry of final default judgment as directed at the final, rather than the nonfinal, default judgment). Cf. Ex parte Family Dollar Stores of Alabama, Inc., 906 So.2d 892, 896 (Ala.2005) (holding that a nonfinal judgment that reserves assessment of damages “becomes a final judgment” once damages are assessed).


text:
    Richard E. DURR v. Debra S. DURR.
    2040925.
    Court of Civil Appeals of Alabama.
    Dec. 29, 2006.
    Richard E. Durr, pro se.
    A. Evans Crowe, Mobile, for appellee.
   MURDOCK, Judge.

Richard E. Durr (“the husband”), acting pro se, appeals from a judgment entered by the Mobile Circuit Court divorcing him from Debra S. Durr (“the wife”) and dividing the marital property. We dismiss the appeal for lack of appellate jurisdiction.

In April 2004, the wife filed the present action seeking a divorce from the husband on the ground of incompatibility of temperament. The husband filed an answer and a counterclaim, alleging that there had been an irretrievable breakdown of the marriage and that the wife had fraudulently and deceptively enticed him into the marriage and had fraudulently enticed him to spend large sums of money on her behalf.

In November 2004, after an ore tenus proceeding, the trial court entered a judgment that, among other things, awarded the wife the marital residence, which she had owned before the parties married. The husband filed a timely motion to alter, amend, or vacate the judgment, see Rule 59(e), Ala. R. Civ. P., asserting that the trial court had erred in not requiring the wife to repay $25,000 that the husband had paid to satisfy a second mortgage on the marital residence. After a hearing on the husband’s postjudgment motion, the trial court entered an order on March 10, 2005, denying that motion.

On March 31, 2005, the husband filed a second postjudgment motion seeking a new trial or, in the alternative, to amend the judgment. The trial court purported to deny this second postjudgment motion after a hearing conducted on June 13, 2005. On July 22, 2005, the husband filed a notice of appeal. We do not reach the merits of the husband’s appeal because we conclude that the appeal is due to be dismissed as having been untimely filed.

The timely filing of a notice of appeal is a jurisdictional act. Gunnison-Mack v. State Pers. Bd., 923 So.2d 319, 320 (Ala.Civ.App.2005). Subject to exceptions not applicable here, a notice of appeal must be filed within 42 days after entry of the judgment or order from which the appeal is taken. Rule 4(a)(1), Ala. R.App. P. Rule 4(a)(3), Ala. R.App. P., states that the filing of a postjudgment motion under Rule 59, Ala. R. Civ. P., will suspend the time for filing an appeal until the date such motion is granted or denied or until the date the motion is denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. Neither Rule 4(a)(3) nor any other rule, however, gives similar effect to a subsequent request seeking the trial court’s reconsideration of its denial of an earlier Rule 59 motion. Consequently, it long has been held that “while a Rule 59 motion tolls the time for taking an appeal, a subsequent request, by whatever label, seeking the trial court’s reconsideration of its ruling on the former Rule 59 motion, does not operate to further toll the time for the appeal.” Sunshine Homes, Inc. v. Newton, 443 So.2d 921, 923 (Ala.1983), rev’d on other grounds, Ex parte Mutual Sav. Life Ins. Co., 765 So.2d 649 (Ala.1998). See also Wilger v. Department of Pensions & Sec., 343 So.2d 529 (Ala.Civ.App.1977).

The 42-day period in which to file an appeal began to run when the trial court denied the husband’s first postjudgment motion on March 10, 2005. The husband’s notice of appeal was filed on July 22, 2005, more than 42 days after the entry of that denial. Thus, the husband’s notice of appeal was filed untimely and we must dismiss the appeal for lack of appellate jurisdiction. Gunnison-Mack, supra.

APPEAL DISMISSED.

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

      . The parties met in April 2003 and were married in July 2003.

      . The husband did not argue to the trial court, and does not argue on appeal, that his March 31, 2005, motion should be treated as a motion for relief from the judgment under Rule 60(b), Ala. R. Civ. P. Moreover, on appeal the husband has not made any argument for or cited any authority justifying relief pursuant to Rule 60(b).