author: LYONS, Justice.

text:
    William Geral GREENE v. TOWN OF CEDAR BLUFF and Mayor Bob Davis. William Geral Greene v. Town of Cedar Bluff.
    1050814 and 1051713.
    Supreme Court of Alabama.
    Feb. 16, 2007.
    Rehearing Denied April 13, 2007.
    Albert L. Jordan of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham; and A. Eric Johnston, Birmingham, for appellant.
    S. Dagnal Rowe, Richard J.R. Raleigh, Jr., and P. Michael Cole of Wilmer & Lee, P.A., Huntsville; and Stephen Ralph Windom, Montgomery, for appellee Town of Cedar Bluff:
   LYONS, Justice.

In case no. 1050814, William Geral Greene appeals from the trial court’s order denying his motion for permission to intervene in an action in the Cherokee Circuit Court, case no. CV-03-107 (“the first action”). We dismiss that appeal. In case no. 1051713, Greene appeals from the trial court’s judgment dismissing his complaint in a subsequent action filed in the Cherokee Circuit Court, case no. CV-05-172 (“the second action”). We reverse that judgment and remand the case.

As a preliminary matter, we note that Greene filed a motion to consolidate the appeals in these two cases. This Court entered an order denying the motion. Upon further review, we have reconsidered that order, and we hereby consolidate the appeals ex mero motu for purposes of writing one opinion.

I. Factual Background and Procedural History

This is the second time this matter has been before this Court. In the first appeal, Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d 1253 (Ala. 2004), the Court stated the facts as follows:

“In 2002, the Legislature requested from the Justices of this Court an advisory opinion as to whether Senate Bill 539 (‘S.B. 539’), which was then pending before the Legislature, violated certain provisions of the Alabama Constitution. S.B. 539 purported to permit a municipality in Cherokee County with a population of not less than 1,300 inhabitants and not more than 1,500 inhabitants to determine by a local-option election whether alcoholic beverages could be legally sold and distributed within the municipality. At the time S.B. 539 was pending, Cherokee County was a ‘dry’ county. Though not obliged to do so, this Court considered the request and, in an advisory opinion signed by the Chief Justice and all of the Associate Justices, answered that S.B. 539, if enacted, would violate § 105, Ala. Const. 1901. See Opinion of the Justices No. 376, 825 So.2d 109 (Ala.2002).
“Advisory opinions issued by this Court are not binding, and on June 16, 2003, the Legislature enacted Senate Bill 350 (‘S.B. 350’), which became Act No. 2003-362, Ala. Acts 2003. S.B. 350 was substantially identical to S.B. 539, the only significant difference being that the Legislature added to S.B. 350 a section acknowledging this Court’s advisory opinion on S.B. 539 but disagreeing with the conclusion reached in the advisory opinion and concluding that S.B. 350 was a constitutional exercise of the power granted the Legislature by § 104, Ala. Const. 1901, ‘as a matter of law.’ Shortly after Act No. 2003-362 became law, the Town of Cedar Bluff, a municipality in Cherokee County with a population of more than 1,300 and less than 1,500 inhabitants, scheduled a local-option election for August 12, 2003, at which its residents would be allowed to vote on the issue whether to allow alcoholic beverages to be legally sold and distributed within the town.
“On August 8, 2003, Carl Green, a resident of Cedar Bluff, and Citizens Caring for Children (‘the CCC’) sued the Town of Cedar Bluff and its mayor, Bob Davis, alleging that Act No. 2003-362 was unconstitutional and that the results of any election held pursuant to the act would be void. Green and the CCC also sought an emergency injunction to prevent the election. They were unable to obtain an injunction, however, and the election was held on August 12, 2003, as scheduled. Eight hundred and eighty-eight citizens of Cedar Bluff voted in the election: 649 citizens voted in favor of allowing alcohol sales and 239 citizens voted against it.
“On August 15, 2003, with the consent of the parties, the trial court entered an order staying alcohol sales in Cedar Bluff until the trial court ruled on the merits of the action filed by Green and the CCC. On October 20, 2003, after considering the briefs of the parties and hearing oral argument, the trial court entered a judgment (1) declaring Act No. 2003-362 to be unconstitutional; (2) declaring the August 12, 2003, election void; and (3) enjoining Cedar Bluff from issuing any licenses authorizing the sale of alcohol based on the results of the August 12 election. Cedar Bluff and Mayor Davis appeal.”

904 So.2d at 1254-55 (footnotes omitted).

In Cedar Bluff, we reversed the trial court’s judgment because the plaintiffs, Citizens Caring for Children, a political committee created pursuant to the Fair Campaign Practices Act, § 17-22A-1 et seq., Ala.Code 1975 (“the CCC”), and Carl Green, the chairperson of the CCC, lacked standing to pursue the action. We remanded the case for further proceedings consistent with the opinion.

On remand, on February 24, 2005, the plaintiffs — CCC and Green — and the defendants — the Town of Cedar Bluff (“the Town”) and Bob Davis, its mayor at that time — filed a joint stipulation of dismissal of the first action with prejudice. Despite the stipulation of all parties to the dismissal of the action, the trial court entered the following order on March 3, 2005:

“This suit [the first action] was brought to determine whether Act No. 2003-362 authorizing a wet-dry referendum in Cedar Bluff, Alabama violates the Alabama Constitution.
“While this Court has determined that the subject Act of the Alabama Legislature violates the Alabama Constitution, the Alabama Supreme Court has ruled that the Plaintiffs are not proper parties to bring the instant action. Accordingly, the Alabama Supreme Court returned the case to this Court for ‘further proceedings consistent with [the Supreme Court] opinion.’
“This Court has now received the parties’ stipulation for dismissal of the [first] action with prejudice. It is this Court’s opinion that a dismissal with prejudice is premature and that such action is not consistent with the Supreme Court’s remand order.
“Accordingly, this Court hereby declines to dismiss the instant action pending further orders.
“Unless otherwise ordered by this Court, this case shall remain pending for one year from the date that the Town of Cedar Bluff issues the first license for the sale of alcoholic beverages. Should no action be taken by the Plaintiffs or others intervening in this cause prior to the expiration of that time, this case shall be deemed dismissed with prejudice at that time, unless otherwise ordered by the Court....”

(Emphasis added.)

On October 19, 2005, after the trial court’s attempt to resuscitate the then dismissed first action, William Geral Greene, a citizen of the Town, filed a motion to intervene in the first action together with a proposed complaint in intervention. On February 9, 2006, the trial court entered an order denying Greene’s motion and dismissing the first action with prejudice.

While his motion to intervene in case no. CV-03-107 was pending, Greene filed the second action in the Cherokee Circuit Court on December 5, 2005; the second action was docketed as case no. CV-05-172. The Town moved to dismiss Greene’s complaint -in the second action on the basis that § 6-5-440, Ala.Code 1975, bars the prosecution of “two actions in the courts of this state at the same time for the same cause and against the same party.” On February 9, 2006, the trial court entered the following order denying the Town’s motion to dismiss:

“At the time of filing the instant action the Plaintiff had filed a Motion to Intervene in Carl Green and Citizens Caring for Children v. Town of Cedar Bluff, Alabama (CV-2003-107) [the first action]. The Town of Cedar Bluff has, therefore, filed a Motion to Dismiss the instant action under the provisions of § 6-5^440, Code of Alabama (1975) which provides, in part, that a plaintiff may not prosecute two actions in the courts of this State at the same time for the same cause and against the same party.
“This Court has, however, denied William Geral Greene’s Motion to Intervene in case CV-2003-107. Accordingly, the Defendant’s Motion to Dismiss the instant action is hereby DENIED.”

On June 30, 2006, Greene filed a motion for a preliminary injunction in the second action prohibiting the Town from issuing any license that would allow a business to engage in the sale or distribution of alcoholic beverages and from disbursing any income already received from such sale or distribution. On August 14, 2006, two business owners who hold licenses to sell and distribute alcoholic beverages filed motions to intervene in the second action. On August 23, 2006, the trial court entered the following order dismissing the second action without prejudice and denying the motions to intervene filed by the business owners. The trial court’s order states:

“The issues raised in case numbered CV-2003-107 [the first action] are identical to the issues raised in the [second action]. Both cases are brought to determine the constitutionality of Act Number 2003-362 authorizing a wet/dry referendum in the Town of Cedar Bluff, Alabama.
“Case numbered CV-2003-107 was filed on August 8, 2003, by an unrelated party, but the herein Plaintiff filed a Complaint-In-Intervention in CV-2003-107 on October 19, 2005. The Plaintiff filed the instant action on December 5, 2005.
“Under Title 6-5-440 Code of Alabama (1975) one may not prosecute two actions at the same time for the same cause and against the same party.
“On February 9, 2006, this Court entered an Order dismissing the Plaintiffs Complaint-In-Intervention in CV-2003-107, and otherwise denied the Plaintiffs Motion to Intervene in that cause. From this Court’s Order which denied the Plaintiffs Motion to Intervene in case numbered CV-2003-107, the Plaintiff filed an appeal to the Alabama Supreme Court.
“While case numbered CV-2003-107 has been pending on appeal, the Plaintiff filed a Motion with the Supreme Court asking that his appeal be stayed. Accordingly, the Supreme Court entered an Order on April 26, 2006, which stayed the proceedings on appeal and placed CV-2003-107 on that Court’s Administrative Docket. On June 9, 2006, the Alabama Supreme Court entered an Order vacating the stay of the appeal in case numbered CV-2003-107, and restored the appeal of case numbered CV-2003-107 to the Supreme Court’s active docket.
“Because the Plaintiff continues to prosecute his appeal in case numbered CV-2003-107, the Town of Cedar Bluff asserts that the Plaintiffs prosecution of his constitutional challenge in the instant case violates Title 6-5-440 Code of Alabama (1975) which prohibits the prosecution of two actions at the same time for the same cause and against the same party. Accordingly, the Town of Cedar Bluff has filed a Motion to Dismiss the instant action.
“Even though the Plaintiff acknowledges that he cannot pursue two actions against the same party for the same cause, the Plaintiff nevertheless continues to prosecute identical claims in [the first action] and in the [second action]. This Court has attempted to give the Plaintiff reasonable latitude in this matter by allowing the [second action] to remain pending while the Plaintiff pursues his appeal in case CV-2003-107. This Court has reasoned that if the Plaintiff succeeds in his efforts to have the Supreme Court allow his intervention in CV-2003-107, the [second action] will be due to be dismissed. On the other hand, if the Plaintiff is unsuccessful in his effort to have the Supreme Court allow his intervention in case CV-2003-107 this Court would then determine whether the [second action] is barred by Title 6-5-440 or for any other reason.
“The Plaintiff is, however, apparently unwilling to wait for the Supreme Court’s decision concerning his effort to intervene in CV-2003-107. The Plaintiffs impatience is represented by his Motion to Compel The Town Of Cedar Bluff to respond to discovery and by the newly filed Motion For Preliminary Injunction seeking to have this Court prevent the Town of Cedar Bluff from allowing the sale of alcoholic beverages pending the outcome of this litigation.
“The Motion to Dismiss filed by the Town of Cedar Bluff was orally argued on June 20, 2006. Since then there has been a Motion to Intervene in the instant case filed by Jerry L. Culberson d/b/a Weiss Mart Marine and by Chris-tyne Price d/b/a Chris’s Place.
“In consideration of the findings of this Court, whether set out herein, or not, it is ORDERED that this case shall be, and is hereby DISMISSED WITHOUT PREJUDICE.
“The Motion to Intervene filed by Jerry L. Culberson d/b/a Weiss Mart Marine and by Christyne Price d/b/a Chris’s Place is DENIED.”

II. Case No. 10508H -

Greene argues that the trial court exceeded its discretion when it denied his motion to intervene in the first action. The Town argues that the stipulation of dismissal filed by the parties terminated the case as of the filing of the stipulation, and that the trial court therefore did not have jurisdiction to enter any further orders in the case. If the trial court no longer had jurisdiction over the action after the parties stipulated to its dismissal, “[t]his Court is duty bound to notice ex mero motu the absence of subject-matter jurisdiction.” Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 945 n. 2 (Ala.1994).

The Town relies upon Hammond v. Brooks, 516 So.2d 614 (Ala.1987), in which this Court decided the question presented here, i.e., whether a stipulation of dismissal pursuant to Rule 41(a)(l)(ii), Ala. R. Civ. P., terminates an action without an order of the trial court. Rule 41(a)(1) provides:

“(1) By Plaintiff; By Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of this state, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice.... ”

(Emphasis added.) In Hammond, the Court stated:

“The issue in this case has not been previously examined by this Court. The committee comments to Rule 41 state that this rule is substantially the same as the federal rule, and we normally consider federal cases interpreting the federal rules of procedure as persuasive authority. Bracy v. Sippial Electric Co., 379 So.2d 582 (Ala.1980).
“Rule 41(a)(l)(ii)[, Fed.R.Civ.P.,] was expressly applied in First National Bank of Toms River, N.J. v. Marine City, Inc.; 411 F.2d 674 (3d Cir.1969). In that case, both a complaint and a third-party complaint were pending, and all of the parties to the third-party action filed a stipulation of dismissal. The Court held:
“ ‘The filing of the stipulation of dismissal on October 7, 1966, which was consented to by all the parties to the third-party action terminated it under Federal Rule of Civil Procedure 41(a)(1), which provides that “an action may be dismissed by the plaintiff without order of court ... (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action .... ” The entry of such a stipulation of dismissal is effective automatically and does not require judicial approval. 2B Barron and Holtzoff, Federal Practice and Procedure, § 911, p. 109 (Wright Rev.1961); 5 Moore, Federal Practice, ¶ 41.02[2] (1968). See also Orange Theatre Corp. v. Rayherstz Amusement Corp., 130 F.2d 185, 186 (3 Cir.1942). The District Court’s judgment of January 4, 1967, which was entered after the dismissal of the third-party action, could not affect the rights of the third-party defendants, who no longer were parties to any pending litigation before the court.’
“Other federal courts interpreting Rule 41(a) have stated that voluntary dismissals automatically terminate the action upon the filing of the dismissal with the clerk. No order of the court is required. Scam Instrument Corp. v. Control Data Corp., 458 F.2d 885 (7th Cir.1972); Miller v. Reddin, 422 F.2d 1264 (9th Cir.1970).”

516 So.2d at 616 (emphasis added).

The first action, filed by CCC and Green, was terminated upon the filing of the stipulation for dismissal signed by all the parties and filed with the Cherokee Circuit Court on February 24, 2005. We addressed the effect of a dismissal under Rule 41(a)(1) on the trial court’s jurisdiction in Ex parte Sealy, L.L.C., 904 So.2d 1230, 1235-36 (Ala.2004), as follows:

“Although cases involving a Rule 41(a)(1) dismissal ‘are not perfectly analogous to cases in which the ... court lacks subject matter jurisdiction, both contexts present the question of the court’s continuing power over litigants who do not, or no longer, have a justicia-ble case before the court.’ Chemiakin v. Yefimov, 932 F.2d 124, 128 (2d Cir. 1991). Thus, it is sometimes stated that a Rule 41(a)(1) dismissal deprives the trial court of ‘jurisdiction’ over the ‘dismissed claims.’ Duke Energy Trading & Mktg., L.L.C. v. Davis, 267 F.3d 1042, 1049 (9th Cir.2001); see Safeguard Business Sys., Inc. v. Hoeffel, 907 F.2d 861, 864 (8th Cir.1990); see also Gamhale v. Deutsche Bank AG, 377 F.3d 133, 139 (2d Cir.2004); Netwig v. Georgia Pacific Corp., 375 F.3d 1009, 1011 (10th Cir.2004); Meinecke v. H & R Block of Houston, 66 F.3d 77, 82 (5th Cir.1995); Williams v. Ezell, 531 F.2d 1261, 1264 (5th Cir.1976) (‘The court had no power or discretion to deny plaintiffs’ right to dismiss or to attach any condition or burden to that right. That was the end of the case and the attempt to deny relief on the merits and dismiss with prejudice was void.’).
“Similarly stated, ‘[t]he effect of a voluntary dismissal without prejudice is to render the proceedings a nullity and leave the parties as if the action had never been brought.’ In re Piper Aircraft Distrib. Sys. Antitrust Litig., 551 F.2d 213, 219 (8th Cir.1977). Moreover, ‘ “[i]t carries down with it previous proceedings and orders in the action, and all pleadings, both of plaintiff and defendant, and all issues, with respect to plaintiffs claim.” ’ Id. (quoting 27 C.J.S. Dismissal and Nonsuit § 39 (1959)). In particular, ‘Rule 41(a)(l)(i)[, Fed.R.Civ.P.,] prevents an award of “costs” against the party who dismisses the suit voluntarily. Only the filing of a second suit on the same claim allows the court to award the costs of the first case. See Rule 41(d)[, Fed.R.Civ.P.]....’ Szabo Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1077 (7th Cir.1987).”

Although Ex parte Sealy dealt with a dismissal under Rule 41(a)(1)® and here we deal with a dismissal under Rule 41(a)(1)(h), we see no basis for a different result. After the filing of the stipulation of dismissal, the trial court lacked authority to entertain the first action; therefore, its subsequent orders in that action are void. “[Sjince a void judgment will not support an appeal, it follows that the appeal is due to be dismissed.” Underwood v. State, 439 So.2d 125, 128 (Ala.1983). We therefore dismiss the appeal in case no. 1050814.

III. Case No. 1051713

We now turn to the judgment dismissing the action that Greene filed against the Town (the second action). Section 6-5-440, Ala.Code 1975, states:

“No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pen-dency of the former is a good defense to the latter if commenced at different times.”

Because the facts applicable to the issue presented are undisputed, our review of the application of the law to the facts of this case is de novo. Reynolds v. Colonial Bank, 874 So.2d 497 (Ala.2003).

A dismissal pursuant to § 6-5-440 would be proper only if Greene were prosecuting two actions “at the same time for the same cause and against the same party.” Because the action brought by CCC and Green was terminated long before Greene sought to intervene in that action, the only action in which Greene has ever been a plaintiff is the action he filed against the Town on December 5, 2005; hence, § 6-5-440 is inapplicable in this case. Therefore, the trial court erred in dismissing the second action on that basis, and we reverse the judgment in case no. 1051713.

Greene also argues on appeal that the trial court erred in denying his motion for a preliminary injunction, and he asks this Court to enter the injunction. The trial court has not ruled on Greene’s motion for a preliminary injunction; indeed, the trial court has not yet held a hearing on that motion. Appellate review of Greene’s motion is premature, and a request that this Court bypass the trial court and enter an injunction is inappropriate.

Finally, Greene asks this Court to declare Act No. 2003-362 unconstitutional. Such a declaration is beyond the scope of this appeal, which seeks our review only of the trial court’s judgment dismissing Greene’s action.

IV. Conclusion

As to case no. 1050814, because the parties’ stipulation for dismissal terminated case no. CV-03-107 when the stipulation was filed, the trial court’s order denying Greene’s motion to intervene is void, and we dismiss the appeal. As to case no. 1051713, because Greene is a plaintiff in only one action against the Town, we reverse the trial court’s judgment dismissing case no. CV-05-172, and we remand the case for further proceedings.

1050814 — APPEAL DISMISSED.

1051713 — REVERSED AND REMANDED.

COBB, C.J., and STUART, BOLIN, and MURDOCK, JJ., concur.

      . Mayor Davis died on June 8, 2005.

      . Although Carl Green, an original plaintiff in the first action, and Geral Greene have confusingly similar names, they are, of course, two different people.

      . The issue whether Greene could have been considered to be prosecuting an action in which he was merely appealing an order denying him the status of an intervenor is not before us.


source: Caselaw Access Project

author: STUART, Justice.

license: Public Domain

text:
    Ex parte Regina Deloise TROTTMAN and Willie Ross. (In re T.W., individually and as next friend of J.T., a minor v. Russell County Board of Education et al.).
    1060073.
    Supreme Court of Alabama.
    March 16, 2007.

      Mark S. Boardman and Philip F. Hutcheson of Boardman, Carr & Hutche-son, P.C., Chelsea, for petitioners.
    Sam E. Loftin of Loftin, Loftin & Hall, Phenix City, for respondents.
   STUART, Justice.

T.W., individually and as the next friend of J.T., her daughter, a minor, sued the Russell County Board of Education; Regina Deloise Trottman, individually and in her capacity as an instructional assistant at Mount Olive Elementary School; Dyanne D. Hood, individually and in her official capacity as secretary at Mount Olive Elementary School; Willie Ross, individually and in his official capacity as principal of Mount Olive Elementary School; C.W., then an 18-year-old former student of Mount Olive Elementary School; and others, alleging claims of assault and battery, negligence and wantonness, and negligent or wanton supervision or training. Defendants Russell County Board of Education, Hood, Trottman, and Ross moved for a summary judgment, arguing that they were entitled to State-agent immunity. See Ex parte Cranman, 792 So.2d 392 (Ala.2000). The trial court entered a summary judgment for the Russell County Board of Education and Hood, but denied the summary-judgment motion as to Trott-man and Ross. Trottman and Ross then petitioned this Court for a writ of mandamus directing the Russell Circuit Court to enter a summary judgment for them on the basis of State-agent immunity. We grant the petition and issue the writ.

Facts

On November 16, 1999, J.T., then an 11-year-old girl enrolled in the sixth grade at Mount Olive Elementary School, informed her teacher that she was sick and wanted to go home. The teacher instructed J.T. to telephone her mother. J.T. left the classroom and returned a few minutes later. About 45 minutes after J.T. returned, the teacher was informed that J.T. needed to come to the office to check out of school.

Trottman, an instructional assistant, was assisting in the office that day and, at Ross’s direction, was checking students in and out of the school. C.W., an 18-year-old former student at Mount Olive Elementary School, entered the office and spoke with Hood. Trottman did not overhear their conversation. C.W. then informed Trottman, outside Hood’s presence, that he needed to check his sister, J.T., out of school. When J.T. arrived at the office, Trottman checked her out, permitting J.T. to leave with C.W.

After J.T. and C.W. left the school grounds, Trottman remarked to Hood that J.T. had a nice brother. Hood, knowing that J.T. did not have a brother, realized that J.T. had left the school grounds with C.W. under a false pretense. Hood and a teacher left the school grounds to search for J.T. They found J.T. in C.W.’s vehicle, which was parked in a vacant lot near his house. When Hood approached the vehicle, she could see that C.W. was sexually assaulting J.T.; Hood was able to stop the sexual assault before it was completed.

Standard of Review

“The standard governing our review of an issue presented in a petition for a writ of mandamus is well established:

“‘[MJandamus is a drastic and extraordinary writ to be issued only where 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. Barber v. Covington County Comm’n, 466 So.2d 945 (Ala.1985). In cases involving the exercise of discretion by an inferior court, mandamus may issue to compel the exercise of that discretion. It may not, however, issue to control or review the exercise of discretion except in a case of abuse. Ex parte Smith, 533 So.2d 533 (Ala.1988).’

“Ex parte Edgar, 543 So.2d 682, 684 (Ala.1989).”

Ex parte Blankenship, 806 So.2d 1186, 1187 (Ala.2000).

Discussion

Ross and Trottman maintain that the trial court exceeded the scope of its discretion when it refused to enter a summary judgment for them on the basis that they were not entitled to the protection of State-agent immunity as provided in Ex parte Cranman, supra. According to Ross and Trottman, they are entitled to State-agent immunity for the claim of negligent supervision of students because, they say, their conduct in allowing J.T. to leave the school grounds with C.W. fell within the discretionary function of educating and supervising students. Additionally, Ross argues that he is entitled to State-agent immunity on the claim of negligent supervision of personnel because, he says, his conduct fell within the discretionary function of exercising his judgment in supervising personnel and formulating policies.

In Giambrone v. Douglas, 874 So.2d 1046 (Ala.2003), this Court set forth the law applicable to our analysis in a case like this one, stating:

“In [Ex parte] Cranman, [792 So.2d 392 (Ala.2000) J, this Court restated the doctrine of State-agent immunity as follows:
“ ‘A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“ ‘(1) formulating plans, policies, or designs; or
“ ‘(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as: “ ‘(a) making administrative adjudications;
“ ‘(b) allocating resources;
“ ‘(c) negotiating contracts;
“ ‘(d) hiring, firing, transferring, assigning, or supervising personnel; or
“ ‘(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
“ ‘(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons; or “ ‘(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
“ ‘Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“ ‘(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
“ ‘(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.’
792 So.2d at 405....
“We have established a ‘burden-shifting’ process when a party raises the defense of State-agent immunity. Ex parte Wood, 852 So.2d 705 (Ala.2002). In order to claim State-agent immunity, the [State agents] bear the burden of demonstrating that [the plaintiffs] claims arise from a function that would entitle them to immunity. Wood, 852 So.2d at 709; Ryan v. Hayes, 881 So.2d 21 (Ala.2002). If the [State agents] make such a showing, the burden then shifts to [the plaintiff], who, in order to deny the [State agents] immunity from suit, must establish that the [State agents] acted willfully, maliciously, fraudulently, in bad faith, or beyond their authority. Wood, 852 So.2d at 709; Ex parte Davis, 721 So.2d 685, 689 (Ala. 1998). A State agent acts beyond authority and is therefore not immune when he or she ‘fail[s] to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.’ Ex parte Butts, 775 So.2d 173, 178 (Ala.2000).”

874 So.2d at 1051-52.

A. Claim of Negligent Supervision of Students Asserted Against Ross and Trottman

Ex parte Cranman provides State-agent immunity for individuals who are “exercising judgment in the discharge of duties imposed by statute, rule, or regulation in ... educating students.” 792 So.2d at 405. Educating students includes not only classroom teaching, but also supervising and educating students in all aspects of the educational process.

In Ex parte Blankenship, supra, this Court held that a band director and a high school principal were entitled to State-agent immunity because they were exercising their discretion in educating students when they allowed a 19-year-old male, who was not a student at the school, to participate in the band. In Blankenship, the parents of C.S., a female band.member, had asked Harold Blankenship, the band director, to keep C.S. and Jason Howard, the 19-year-old male, separated. When the band returned to Elmore County from marching at a football game in Troy, neither C.S.’s parents nor the parents designated by C.S.’s parents to pick up C.S. were available, even though C.S.’s parents knew that it was their responsibility to provide C.S. with a ride home after the trip. C.S. and a girlfriend left with Howard and his brother, who was at the high school to pick up Howard. At some point after that, C.S. and Howard engaged in sexual intercourse. When C.S. told her parents what had happened, C.S.’s parents reported the incident to the police. They later sued Blankenship and Louie Fryer, the principal, alleging that Blankenship and Fryer had failed to properly supervise C.S. by allowing C.S. to leave the school grounds with Howard.

Blankenship and Fryer moved for a summary judgment, arguing that their actions were protected under the doctrine of discretionary immunity. C.S.’s parents argued that Blankenship and Fryer had exceeded the scope of their discretion and were not entitled to immunity because they had allowed Howard, a nonstudent, to participate in the band when the guidelines established by the Elmore County School Board stated that “a child could not participate in an extracurricular activity on a particular day if the child had not attended school for the entire day.” 806 So.2d at 1188. After the trial court denied Blankenship and Fryer’s motion, they petitioned this Court for a writ of mandamus directing the trial court to enter a summary judgment in their favor. This Court, recognizing that the guidelines did not limit the discretion of a principal and a band director in allowing nonstudents to participate in the band, held that Blankenship and Fryer were protected under the doctrine of discretionary immunity because their decision to allow Howard to participate in the band was made while they were acting in their official capacity discharging their duties in educating students. We stated:

“One with 20/20 hindsight might question the wisdom of Blankenship and Fryer’s decision to allow a person they thought was a student from a private school outside Elmore County to participate in the band activities and the wisdom of their failing to verify that he was a student at the private school he claimed to attend. State-agent immunity protects agents of the State in their exercise of discretion in educating students. We will not second-guess their decisions.”

806 So.2d at 1190.

Applying the reasoning set forth in Blankenship, we conclude that Ross and Trottman are entitled to the protection of State-agent immunity. Ross, in his official capacity as principal of Mount Olive Elementary School, designated Trottman to check students in and out of school on the day J.T. left the school with C.W. The documents before us establish that allowing a student to leave with an older sibling was a standard checkout procedure at Mount Olive Elementary School. As a consequence, Trottman permitted J.T. to leave the school grounds with C.W., who represented to Trottman that he was J.T.’s brother. Therefore, Ross’s and Trotfc-man’s actions occurred while they were discharging their official duties in educating students.

Because Ross and Trottman established that their conduct was based on their exercise of judgment in educating students, the burden, then shifted to T.W. to establish that Ross and Trottman acted “willfully, maliciously, fraudulently, in bad faith, or beyond [their] authority.” According to T.W., Ross and Trottman acted beyond-the scope of their authority because, she argues, they did not follow the established procedure for allowing a student to check out of school. She maintains that if the procedure designated in the 1998-1999 district-wide handbook and the proposed 1999-2000 Mount Olive Elementary School handbook had been followed, J.T. would not have been allowed to check out and leave the school grounds with C.W. She states that these handbooks provided “detailed rules and regulations,” which Ross and Trottman were required to follow, and, because they did not follow these established procedures in deciding to allow J.T. to check out and leave the school grounds with C.W., they exceeded their authority. In support of her argument, she also offered an affidavit stating that when she enrolled J.T. at Mount Olive Elementary School, she completed a form in which she indicated that in the event she could not pick up J.T. at school, only T.W.’s mother or T.W.’s aunt were authorized to pick up J.T. from school.

Ross and Trottman, however, presented evidence indicating that there was not an official checkout policy in place at Mount Olive Elementary School at the time of the incident. They submitted an affidavit from Lee Henderson, the superintendent of education for the Russell County Board of Education at the time of J.T.’s assault. He stated:

“The Russell County Board of Education did not have any policies, procedures, rules or regulations in place regarding the checking out of students during the 1999-2000 school year. While the Russell County Board of Education did not require each school to have its own handbook during the 1999-2000 school year, we were in a' transition period where each school was in the process of formulating its own handbook addressing the specific needs of the school. During this school year, each principal, including Mr. Ross, had the authority to put into effect those procedures which best served the circumstances of their community and school. Each principal also had the authority to delegate the responsibility for checking students out.”

Thus, Henderson’s affidavit establishes that there was not a district policy regarding checking students out of school. Additionally, Ross and Trottman presented, evidence through the depositions of Ross and other faculty and staff working at Mount Olive Elementary School during the 1999-2000 school year indicating that although there was a proposed 1999-2000 handbook for Mount Olive Elementary School, the handbook was never adopted and there was no school policy regarding checking students out of school. - Ross and Trott-man further state that the enrollment form T.W. completed when she enrolled J.T. at Mount Olive Elementary School did not designate certain individuals to pick J.T. up in the event T.W. could not do so; rather, it provided names of individuals whom the school could contact in case of an emergency.

In light of the foregoing, T.W. has not established that a specific checkout policy existed at Mount Olive Elementary School at the time of the incident; thus, she has not established that a genuine issue of material fact exists as to whether Ross and Trottman exceeded the scope of their discretion by permitting J.T. to leave the school grounds with C.W. Cf. Giambrone v. Douglas, supra (holding that a genuine issue of material fact existed as to whether a wrestling coach was entitled to State-agent immunity because evidence was presented indicating that specific guidelines and rules had been provided to the coach, thus removing the coach’s discretion). Consequently, the trial court exceeded the scope of its discretion by refusing to enter a summary judgment for Trottman and Ross on the ground of State-agent immunity with regard to T.W.’s claim of negligent supervision of students.

B. Claim of Negligent Supervision of Personnel Asserted Against Ross

Additionally, Ross contends that the trial court exceeded the scope of its discretion in refusing to grant him State-agent immunity with regard to T.W.’s claim' that he was negligent in his supervision of school personnel.

Ex parte Cranman provides that an agent of the State is protected from liability for decisions made while exercising his or her judgment in the administration of a department or agency of the State when assigning or supervising personnel. 792 So.2d at 405. In Hill v. Allen, 495 So.2d 32 (Ala.1986), this Court held that a school principal, who was accused of negligent supervision of teachers and aides who had allegedly assaulted mentally retarded students, was entitled to State-agent immunity. In Hill, the students maintained that the principal knew or should have known of the alleged abuses inflicted upon them, yet failed to prevent them. This Court held that the principal was entitled to immunity because he was exercising his judgment in supervising the teachers at the time of the assaults and that he did not exceed the scope of his authority because the students did not allege or establish that the principal had acted fraudulently or in bad faith.

Here, like the principal in Hill, Ross exercised discretion within his authority when he assigned Trottman to check students in and out of school. T.W. did not present any evidence to establish that at the time Ross assigned Trottman, under his supervision, to check students in and out of school Ross acted “willfully, maliciously, fraudulently, in bad faith or beyond his ... authority.” Therefore, Ross is entitled to State-agent immunity with regard to T.W.’s claim that he negligently supervised Trottman.

Finally, T.W. argues that Ross is not entitled to State-agent immunity because, she says, he exceeded the scope of his discretion by failing to formulate and enforce proper checkout procedures at Mount Olive Elementary School.

Ex parte Cranman specifically provides that a State agent is entitled to immunity when formulating policies. 792 So.2d at 405. In Louviere v. Mobile County Board of Education, 670 So.2d 873 (Ala.1995), this Court held that a principal of an elementary school was entitled to State-agent immunity on a claim that he “negligently failed to exercise proper safety measures, to monitor school equipment, to maintain safety precautions, and to institute safety measures.” 670 So.2d at 877. In Louvi-ere an elementary school student was severely burned when she stepped into a hole and her feet and ankles were burned by hot water or steam, which allegedly was caused by an underground boiler pipe. This Court held that the principal was immune from liability, stating:

“Whatever her action might have been, any decision she might have made was related to the performance of her duties as principal, and called for ‘personal deliberation[s], decisions] and judgment[s]’ in the performance of her job. Thus, in making that decision she was engaged in the performance of discretionary functions for which she possessed constitutional immunity.”

670 So.2d at 877.

Like the principal in Louviere, Ross is also entitled to State-agent immunity. The development of a checkout policy at Mount Olive Elementary School was within Ross’s discretion in making decisions as principal for the school. T.W. did not present any evidence indicating that in formulating the checkout policy Ross acted “willfully, maliciously, fraudulently, in bad faith, or beyond his ... authority.” Therefore, Ross is entitled to State-agent immunity on this claim.

Conclusion

The facts here, like those in Blankenship, supra, and other similar cases, make us question the wisdom of Ross’s and Trottman’s decisions as they related to J.T.; hindsight, however, is 20/20, and we will not second-guess their decisions.

Ross and Trottman have established a clear legal right to the relief requested; therefore, we direct the trial court to enter a summary judgment in favor of Ross and Trottman.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and LYONS, BOLIN, and MURDOCK, JJ., concur.

      . T.W. does not contend that she was provided a copy of this draft 1999-2000 handbook.

      . A copy of this enrollment form is not included in the documents submitted to this Court. According to Ross and Trottman, a copy of the enrollment form was not submitted to the trial court for review. T.W. does not refute this statement.

      . See, e.g., Ex parte Spivey, 846 So.2d 322 (Ala.2002); Ex parte Nall, 879 So.2d 541 (Ala. 2003); Ex parte Turner, 840 So.2d 132 (Ala. 2002); and Byrd v. Sullivan, 657 So.2d 830 (Ala. 1995).


author:
PITTMAN, Judge.
      MOORE, Judge,

text:
    Stanley B. JOHNSON v. JEFFERSON SMURFIT CORPORATION.
    2050501.
    Court of Civil Appeals of Alabama.
    April 6, 2007.
    Robert C. King, Monroeville, for appellant.
    K.W. Michael Chambers and Joseph D. Stutz of Cabaniss, Johnston, Gardner, Dumas & O’Neal, L.L.P., Mobile, for appellee.
   PITTMAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(A), Ala. R.App. P.; Ala.Code 1975, § 25-5-81(c)(2); Ex parte Keao, 900 So.2d 442 (Ala.2004); Liberty Nat’l Life Ins. Co. v. Daugherty, 840 So.2d 152, 161 (Ala.2002); Ex parte Staggs, 825 So.2d 820, 822 n. 1 (AIa.2001); Ex parte Golden Poultry Co., 772 So.2d 1175, 1176 (Ala.2000); Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996); and Newman v. State, 623 So.2d 1171, 1172 (Ala.Civ.App.1993).

THOMPSON, P.J., and BRYAN and THOMAS, JJ., concur.

MOORE, J., concurs specially.

MOORE, Judge,

concurring specially.

I concur in the decision to affirm the judgment of the trial court denying a claim for permanent-total-disability benefits filed by Stanley B. Johnson (“the employee”). Substantial evidence fully supported the trial court’s determination that the employee was not permanently and totally disabled but, instead, had sustained a 33% permanent partial disability due to a work-related shoulder injury. The employee himself testified that he was capable of working, even arguing at one point that he could have returned to work at his former job at Jefferson Smurfit Corporation (“the employer”) as an electrician. Surveillance videotapes showed that the employee could perform a variety of physical tasks, including operating heavy equipment. The employee’s treating physicians agreed that the employee could return to work with restrictions placing him in the light to medium category of jobs that compose the vast majority of the labor market.

I write specially to address the employee’s contention that the doctrine of judicial estoppel precludes the employer from denying that the employee is permanently and totally disabled. The employee contends that the employer deemed the employee to be permanently and totally disabled when a committee who administered the pension plan funded by the employer awarded him disability-retirement benefits and, hence, that it would be inconsistent and unfair for the employer to assert that the employee is not permanently and totally disabled for workers’ compensation purposes.

In Ex parte First Alabama Bank, 883 So.2d 1236 (Ala.2003), our Supreme Court held that judicial estoppel applies when: (1) a party takes a position in a later judicial proceeding that is clearly inconsistent with its earlier position; (2) the party was successful in the prior proceeding so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or second court was misled; and (3) the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. 883 So.2d at 1244-45 (quoting New Hampshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)).

In Ex parte First Alabama Bank, the Court noted that the purpose of judicial estoppel is to protect the integrity of the judicial system. 883 So.2d at 1244 (quoting Rand G. Boyers, Precluding Inconsistent Statements: The Doctrine of Judicial Estoppel, 80 Nw. U.L.Rev. 1244, 1249-50 (1986)). The Court also noted that it had adopted the judicial-estoppel standards set forth in New Hampshire v. Maine in order to conform to the mainstream of jurisprudence in dealing with the doctrine of judicial estoppel. 883 So.2d at 1246. A majority of jurisdictions hold that the original position must have been asserted in a prior judicial, quasi-judicial, or administrative proceeding. See 28 Am.Jur.2d Estoppel § 75 (1996). Prior Alabama law agrees with this requirement. See, e.g., Consolidated Stores, Inc. v. Gargis, 686 So.2d 268 (Ala.Civ.App.1996), overruled on other grounds, Bleier v. Wellington Sears Co., 757 So.2d 1163 (Ala.2000); and Singley v. Bentley, 782 So.2d 799 (Ala.Civ.App.2000). Nothing in the language of Ex parte First Alabama Bank indicates that the Supreme Court meant to deviate from that requirement; rather, the Court gave every indication, other than an express adoption of that requirement, that it intended to preserve that requirement as a necessary element for establishing judicial estoppel.

I believe the doctrine of judicial estoppel has no application to the present case. The process by which the plan administrator decides whether to award disability-retirement benefits is not described in the plan itself, and the employee presented no evidence indicating that the plan administrator used a judicial, quasi-judicial, or administrative process to reach its decision. The pension plan provides no mechanism for the employer to present evidence either supporting or contradicting an employee’s claim of disability. The employee presented no evidence demonstrating that the employer had submitted any evidence to the plan administrator or had taken any position regarding the employee’s disability claim during the determination process. The plan administrator is a committee comprised of members appointed by the board of directors of a corporate entity separate and distinct from the employer. Hence, the award itself does not constitute any sort of statement by the employer.

In addition, the employer did not take a “clearly inconsistent” position by denying that the employee was permanently and totally disabled for workers’ compensation purposes, because the prerequisites for receiving disability-retirement benefits under the plan differ significantly from the legal qualifications for receiving a permanent-total-disability award under the workers’ compensation laws of this state. The employer also did not prevail in the disability-retirement determination process because the employee received additional retirement benefits on account of his disability. Finally, the employee was not prejudiced in the least by the alleged change of position because he still had the burden of proving a permanent total disability in this case regardless of his disability-retirement award. See Ellenburg v. Jim Walter Res., Inc., 680 So.2d 282 (Ala. Civ.App.1996). Only the employer would be prejudiced if the employee’s inability to carry his burden of proof was excused by the mere fact that he had been awarded disability-retirement benefits.

I also write specially to address the employee’s contention that the disability-retirement award should be construed as a conclusive admission by the employer that the employee is permanently and totally disabled for workers’ compensation purposes.

As the trial court correctly concluded, the employee did not establish the award was an admission by the employer. The trial court found that the employer did not take part in the disability-retirement determination but that a committee designated by a separate corporate entity awarded the employee disability-retirement benefits. That award by the committee cannot be considered an admission by the employer under Rule 801(d)(2) of the Alabama Rules of Evidence. Even if it could, the trial court correctly reasoned that the award could not be considered a conclusive “judicial admission” but, rather, amounted merely to an “ordinary admission” that the trial court could properly consider as only one piece of evidence to be weighed along with the other evidence. See Liberty Nat’l Life Ins. Co. v. Daugherty, 840 So.2d 152, 161 (Ala.2002) (discussing the distinction between judicial and factual admissions). The trial court amply and correctly explained the reason it did not give conclusive effect to the disability-retirement award. Therefore, the employee has failed to prove any error.


author: THOMPSON, Presiding Judge. BRYAN, Judge,

text:
    Lanny W. KIMBRELL v. Larinda KIMBRELL.
    2050559.
    Court of Civil Appeals of Alabama.
    April 6, 2007.

      Thomas A. King, Gadsden, for appellant.
    David T. Puckett of Lambert & Howi-son, P.C., Athens, for appellee.
   THOMPSON, Presiding Judge.

Lanny W. Kimbrell (“the father”) and Larinda Kimbrell (“the mother”) were divorced by a January 26, 2004, judgment of the Limestone Circuit Court. Two children were born of the parties’ marriage, a daughter who was nearly eight years old and a son who was nearly two years old at the time of the September 14, 2005, hearing in this matter. Pursuant to a settlement agreement incorporated into the parties’ divorce judgment, the parties shared joint legal custody of the children, with the mother having primary physical custody.

By a letter dated January 11, 2005, the mother notified the father, pursuant to § 30-3-165, Ala.Code 1975, a part of the Alabama Parent-Child Relationship Protection Act, § 30-3-160 et seq., Ala.Code 1975, that she intended to move with the children to West Virginia. On February 16, 2005, the father filed a pro se objection to the relocation. The father did not seek a temporary order prohibiting the mother from relocating the children before the trial court conducted a hearing and entered a final order on the matter. On February 24, 2005, the mother moved with the children to West Virginia.

On September 14, 2005, the parties presented ore tenus evidence to the trial court at a hearing on the father’s objection. On October 17, 2005, Circuit Judge James W. Woodroof, the original trial court judge in this matter, entered a detailed judgment that stated, in part, that “the move and change of residence by the mother and minor children is approved and ratified by this Court.” Judge Woodroof ordered, among other things, a change in the father’s visitation schedule.

The father filed a motion to alter or amend the judgment on November 10, 2005, which the trial court set for a hearing on January 3, 2006. On January 3, 2006, the father filed a motion to continue the hearing set for that day. Judge Wood-roof granted the motion to continue and reset the hearing on the father’s post-judgment motion for January 26, 2006.

Also on January 3, 2006, the father filed a motion to recuse. In that motion, the father alleged that Judge Woodroof had a conflict of interest because he had “represented the [mother] in the past prior to becoming a Judge.” The father’s motion to recuse did not seek to have Judge Wood-roof set aside the October 17, 2005, judgment. On January 5, 2006, Judge Wood-roof granted the father’s motion to recuse and canceled the January 26, 2006, hearing. The case was reassigned to Circuit Judge Robert M. Baker, who, on February 10, 2006, set the case for a status conference on February 22, 2006. The father’s November 10, 2005,' postjudgment motion was denied by operation of law on February 8, 2006, approximately one month after Judge Woodroof had granted the father’s motion to recuse. See Rule 59.1, Ala. R. Civ. P. (providing that postjudgment motions are deemed denied by operation of law 90 days after the date the motion is filed).

At the February 22, 2006, status conference, Judge Baker asked the parties to clarify and argue issues relevant to the father’s postjudgment motion at an upcoming hearing. It does not appear that the parties or the trial court realized that the father’s postjudgment motion had already been denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P.

Thereafter, on March 15, 2006, the father filed a motion entitled “Amended Motion to Alter, Amend, or Vacate Judgment, or, in the Alternative, a Motion for a New Trial.” The father’s March 15, 2006, motion stated substantially the same grounds as his November 10, 2005, motion, as well as the additional ground that Judge Wood-roofs recusal rendered the October 17, 2005, judgment voidable. In his March 15, 2006, motion, the father asked the trial court to “alter, amend, or vacate” the October 17, 2005, judgment or to grant him a new trial.

On March 28, 2006, the trial court conducted a hearing on the March 15, 2006, motion. Judge Baker indicated that he was going to deny the postjudgment motion being discussed. The father responded by indicating that he wanted to file a motion pursuant to Rule 60(b), Ala. R. Civ. P., in open court; Judge Baker stated that he would deny that motion. That same day, March 28, 2006, the father filed a motion entitled “[Father’s] Motion to Vacate Judgment” pursuant to Rule 60(b), and Judge Baker denied it.

The father filed a notice of appeal on April 3, 2006, and indicated that he desired to appeal the denials of the November 10, 2005, motion, the March 15, 2006, motion, and the March 28, 2006, motion. However, in his brief on appeal, the father asserts only an argument pertaining to the denial of the March 28, 2006, motion and an argument that appears to pertain to the merits of the original judgment. Because of the procedural complexity of this matter, at this court’s request, the parties submitted letter briefs detailing their positions regarding the nature and timeliness of the various motions filed after the entry of the October 17, 2005, judgment.

We initially address the father’s first two motions. It is undisputed that the father’s original postjudgment motion was denied by operation of law on February 8, 2006. After that denial, but within the time for taking an appeal from it and from the October 17, 2005, judgment, the father filed his March 15, 2006, motion. We recognize that “[t]he substance of a motion and not its style determines what kind of motion it is.” Evans v. Waddell, 689 So.2d 23, 26 (Ala.1997). In his March 15, 2006, motion, the father mentioned that Judge Woodroofs recusal had made the October 17, 2005, judgment voidable; however, he did not seek to have the judgment declared void on that ground. Rather, the father focused the motion on the same grounds listed in his earlier postjudgment motion regarding the merits of the judgment, and he sought only to “alter, amend, or vacate” the October 17, 2005, judgment or to obtain a new trial. Accordingly, it is clear from the substance of the father’s March 15, 2006, motion that it was a motion under Rule 59(e), Ala. R. Civ. P.

The March 15, 2006, motion, was, therefore, a successive postjudgment motion that sought the same relief as the father’s original November 10, 2005, postjudgment motion. Generally, successive post-judgment motions are not permitted under our rules. Gold Kist, Inc. v. Griffin, 659 So.2d 626, 627 (Ala.Civ.App.1994). Our supreme court has explained:

“[I]n some cases such successive post-judgment motions may be permitted. If, for example, the judge has rendered a new judgment pursuant to a Rule 59(e) motion to alter, amend, or vacate a judgment or pursuant to a Rule 50(b) motion for judgment notwithstanding the verdict, the party aggrieved by the new judgment may have had no reason to make such a motion earlier. In the usual case, after a post-judgment motion has been denied, the only review of that denial is by appeal; a judge has no jurisdiction to ‘reconsider’ the denial.”

Ex parte Dowling, 477 So.2d 400, 404 (Ala. 1985). Because it did not fall within the exception discussed by the supreme court in Ex parte Dowling, the father’s March 15, 2006, motion was successive and not allowed.

In his brief on appeal, the father challenges the denial of his March 28, 2006, motion. The father filed that motion pursuant to Rule 60(b)(6). Am appeal from a denial of a Rule 60(b)(6) motion presents only the correctness of the ruling on the motion for review upon appeal; it does not present for review the correctness of the judgment from which relief was sought. Palmer & Cay/Carswell, Inc. v. Reed, 535 So.2d 187 (Ala.Civ.App.1988); Smith v. Clark, 468 So.2d 138, 141 (Ala. 1985). “ ‘ “Relief under Rule 60(b)(6) is reserved for extraordinary circumstances, and is available only in cases of extreme hardship or injustice.” ’ ” R.E. Grills, Inc. v. Davison, 641 So.2d 225, 229 (Ala.l994)(quoting Chambers County Comm’rs v. Walker, 459 So.2d 861, 866 (Ala.1984), quoting in turn Douglass v. Capital City Church of the Nazarene, 443 So.2d 917, 920 (Ala.1983)).

The father argues that his Rule 60(b)(6) motion should have been granted on the authority of Acromag-Viking v. Blalock, 420 So.2d 60 (Ala.1982). In that case, the plaintiff sued a company and its president seeking to recover on an itemized account. On the day of the trial, the judge revealed that he knew and had social contact with the vice president of the company. The trial judge denied an “informal request” for a new trial judge. 420 So.2d at 61. After the entry of judgment, the plaintiff filed a Rule 60(b)(6) motion alleging that it had just learned that the trial judge was on the board of directors for the company. The trial judge denied the Rule 60(b) motion, and our supreme court reversed, concluding that the trial judge’s failure to recuse himself constituted an “exceptional circumstance” under Rule 60(b)(6) because “there were substantial facts ... to question the trial judge’s impartiality.” Acromag-Viking v. Blalock, 420 So.2d at 61, 62.

In this ease, the father filed his motion seeking Judge Woodroof s recusal in early January 2006, during the time that his November 10, 2005, postjudgment motion remained pending. However, in his motion to recuse, the father did not ask Judge Woodroof to set aside or vacate the October 17, 2005, judgment. Likewise, the father mentioned the possible conflict of interest in his March 15, 2006, motion and cited the fact that Judge Woodroof had recused himself, but he did not ask Judge Baker to vacate or set aside the October 17, 2005, judgment on that basis.

The representations of the father’s lawyer at the March 28, 2006, hearing before Judge Baker indicate that the father learned immediately before or just after the entry of the October 17, 2005, judgment that Judge Woodroof had previously represented the mother. Judge Baker expressed concern that the father might have elected to wait to see if he received an adverse outcome from Judge Woodroof in his October 2005 judgment before deciding to seek Judge Woodroof s recusal. During the March 28, 2006, hearing, the father, although he was not under oath, stated that he learned of the possible conflict in December 2005. We note that the father did not mention the possible conflict of interest in his November 10, 2005, post-judgment motion.

Also at the March 28, 2006, hearing, the father’s attorney argued the merits of the March 15, 2006, Rule 59(e) motion, and he asked Judge Baker to grant the father a new trial. When Judge Baker indicated that he would deny that motion, the father’s attorney then stated that “if you are not going to grant [the motion for a new trial], then I need to file with the Court this [March 28, 2006, Rule 60(b)(6) ] motion to vacate the judgment.” Thus, the father did not ask for relief from the October 17, 2005, judgment on the basis of the possible conflict of interest until after Judge Baker had indicated that he would not order a new trial on that ground.

Our supreme court has stated:

“[U]nder Rule 60(b)(6), relief is granted only in those extraordinary and compelling circumstances when the party can show the court sufficient equitable grounds to entitle him to relief, but relief should not be granted to a party who has failed to do everything reasonably within his power to achieve a favorable result before the judgment becomes final; otherwise, a motion for such relief from a final judgment would likely become a mere substitute for appeal and would subvert the principle of finality of judgments. See the Comment to Federal Rule of Civil Procedure 60(b). As the Court held in Nowlin v. Druid City Hosp. Bd., 475 So.2d 469 (Ala.1985), Rule 60 is no substitute for an appeal and is not available to relieve a party from his failure to exercise the right of appeal.”

Patterson v. Hays, 623 So.2d 1142, 1145 (Ala.1993) (emphasis added). Given the procedural history of this case, we cannot say that Judge Baker erred in determining that the father had failed to demonstrate the extraordinary circumstances necessary to'justify relief under Rule 60(b).

AFFIRMED.

PITTMAN, THOMAS, and MOORE, JJ., concur.

BRYAN, J., concurs specially.

BRYAN, Judge,

concurring specially.

I concur. I note that this case is decided solely on procedural grounds and not on the underlying merits regarding the Alabama Parent-Child Relationship Protection Act, § 30-3-160 et seq., Ala.Code 1975.

      . It appears that while the mother was a minor approximately 10 years before the hearing in this matter, Judge Woodroof had been hired by the mother’s father to represent him as the mother's next friend in a civil action.

      . The parties do not argue that the recusal of the judge during the pendency of the post-judgment motion somehow lolled the Rule 59.1 time period, and we need not address that issue to resolve this appeal.

      .With regard to the motion to recuse, the father’s March 15, 2006, motion read as follows:
      “On January 5, 2006, the Honorable James Wood [sic], acting on the father’s motion, recused himself, and the case was transferred to the Honorable Robert Baker. A motion seeking a judge’s recusal, if granted, could require that the trial court’s judgment be vacated. Borders v. City of Huntsville, 875 So.2d 1168 (Ala.2003). A judgment is not void because of disqualification of a judge, but is only voidable on direct attack by appeal or by motion to set it aside. Smith v. Clark, 468 So.2d 138 (Ala.1985).”

      . The notation on the case-action summaiy states that "[the father’s] amended motions to alter, amend, or vacate are denied.’’ (Emphasis added.)

      . Nothing in the record shows that the parties agreed to extend the pendency of the father’s postjudgment motion beyond the time prescribed by Rule 59.1. Absent such an express agreement reflected in the record, the father's November 10, 2005, postjudgment motion was denied by operation of law on February 8, 2006, when the trial court failed to rule on it. See Rule 59.1; see also State v. Redtop Market, Inc., 937 So.2d 1013, 1014-15 (Ala.2006).

      . Additionally, a Rule 59(e) motion must be filed within 30 days of the judgment it references. See Rule 59(e), Ala. R. Civ. P. The March 15, 2006, motion was not timely filed pursuant to Rule 59(e) because it was filed well in excess of 30 days after the entry of the October 17, 2005, judgment. See Rule 59(e) ("A motion to alter, amend, or vacate the judgment shall be filed not later than thirty (30) days after entry of the judgment.”). The March 15, 2006, motion, because it was not timely filed, did not invoke the jurisdiction of the trial court.

      . Subject to certain limitations, a party may seek relief from a judgment pursuant to Rule 60(b) on the following bases:
      "(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.”
      In his March 28, 2006, Rule 60(b) motion, the father argued that the October 17, 2005, judgment should be vacated because the trial court judge who entered that judgment later recused himself from the action. However, "a judgment is not void because of disqualification of a judge, but is only voidable on direct attack by appeal or by motion to set it aside.” Smith v. Clark, 468 So.2d 138, 141 (Ala.1985). We note that Rule 60(b)(4), providing for relief from a void judgment, does not apply when the judgment is merely voidable. See Williams v. Williams, 581 So.2d 1116, 1117 (Ala.Civ.App.1991) ("[A] Rule 60(b)(4) motion to have a prior judgment set aside will be granted only where the prior judgment is void rather than voidable.").


author: BRYAN, Judge.

text:
    Tom HODGES and Robert H. Adair, Jr. v. GULF HIGHLANDS DEVELOPMENT, L.L.C., and Merrill Land Company.
    2050764.
    Court of Civil Appeals of Alabama.
    April 6, 2007.

      John L. Lawler, Mobile, for appellants. Daniel G. Blackburn and Cynthia J. Sherman of Blackburn & Conner, P.C., Bay Minette, for appellees.
   BRYAN, Judge.

Tom Hodges and Robert H. Adair, Jr. (collectively “Hodges”), appeal from a judgment of the Baldwin Circuit Court granting a permanent injunction in favor of Gulf Highlands Development, L.L.C., and Merrill Land Company (collectively “Gulf Highlands”). We affirm.

In 2003, Gulf Highlands petitioned the Baldwin County Commission (“the BCC”) to modify a previously approved “planned residential development” (“PRD”) to be developed by Gulf Highlands (“the Gulf Highlands PRD”). The requested modification consisted of an exchange of land between the Gulf Highlands PRD and the Beach Club West PRD, a PRD to be developed by another developer. On November 18, 2003, the BCC held a public hearing concerning the requested modification to the Gulf Highlands PRD. Wayne Dyess, the planning and zoning director and zoning administrator for Baldwin County, was present at the hearing. According to the minutes of the hearing, Dyess stated that the requested modification represented a substantial change to the Gulf Highlands PRD. The BCC approved Gulf Highlands’ request to modify its PRD and amended the PRD on November 18, 2003.

In January 2005, counsel representing Gulf Highlands wrote a letter to Dyess, asking him to confirm the validity of the Gulf Highlands PRD. Dyess sent to Gulf Highlands’ counsel a letter dated February 8, 2005, stating that the Gulf Highlands PRD remained a valid PRD. On March 8, 2005, Hodges filed an appeal to the Board of Zoning Adjustment for Baldwin County Zoning District 25 (“the Board”), asserting that Dyess, in his' letter of February 8, 2005, had made a determination appealable to the Board.

On April 15, 2005, Gulf Highlands sued Hodges, the Board, and the members of the Board, alleging that the Board lacked jurisdiction to hear Hodges’s appeal. As relief, Gulf Highlands sought a temporary restraining order, a preliminary injunction, and a permanent injunction enjoining the Board from hearing Hodges’s appeal. On April 18, 2005, the circuit court issued a temporary restraining order enjoining the Board from hearing the appeal. On May 11, 2005, the circuit court issued a preliminary injunction enjoining the Board from hearing Hodges’s appeal. On July 7, 2005, the circuit court held a hearing regarding the request of Gulf Highlands for a permanent injunction.

On January 5, 2006, the circuit court entered a judgment permanently enjoining the Board from hearing Hodges’s appeal. In its judgment, the circuit court found that Dyess’s letter of February 8, 2005, which formed the basis of Hodges’s appeal to the Board, was “not the type of official decision or determination” over which the Board has appellate jurisdiction. Hodges filed a postjudgment motion, which was denied by operation of law. Hodges timely appealed to this court. However, because this court lacked jurisdiction, it transferred the appeal to the supreme court. Subsequently, the supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Hodges first argues that Dyess, the zoning administrator for Baldwin County, made a determination in his letter of February 8, 2005, that was appealable to the Board. Section 18.5.1 of the Baldwin County zoning regulations (“the zoning regulations”) provides: “The Board of Adjustment shall hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by the Zoning Administrator or other administrative official in the enforcement of these zoning regulations.” In his letter of February 8, 2005, Dyess stated, in pertinent part:

“It has been determined that the Gulf Highlands PRD site plan is still a valid PRD. Due to the major modification approved by the BCC] on November 18, 2003, which was performed in accordance with Article IXX [sic] and Section 9.10 of the Baldwin County Zoning Regulations, the approval period [for the Gulf Highlands PRD] begins over.
“However, please be aware that the approval period began to run after the major modification of the PRD was approved.”

Dyess’s statement in his letter that the BCC had approved a “major modification” to the Gulf Highlands PRD is reflected in the minutes of the BCC’s November 18, 2003, hearing. The minutes indicate that the BCC held a public hearing on the proposed modification to the Gulf Highlands PRD, that Dyess said that the requested modification represented a substantial change to the Gulf Highlands PRD, and that the BCC approved the modification and amended that PRD. The BCC accepted Dyess’s determination that the proposed modification was a major or substantial change to the Gulf Highlands PRD when the BCC approved the modification and amended the PRD on November 18, 2003. Pursuant to the zoning regulations, Hodges had 30 days from November 18, 2003, to appeal to the Board. However, Hodges did not file his appeal with the Board until March 8, 2005. Insofar as Hodges attempted to appeal to the Board the determination that the requested modification was a major or substantial change resulting in an amendment to the Gulf Highlands PRD, that appeal was untimely.

Hodges argues that Dyess, in his letter, made another determination that was appealable to the Board by stating that the “approval period” began anew when the BCC approved the major modification to the Gulf Highlands PRD. Section 9.10.2 of the zoning regulations provides, in pertinent part:

“The approval of a [PRD] final site plan shall be effective for a period of two (2) years. If no construction has commenced within two (2) years, the developer shall have thirty (30) calendar days from the date of expiration to file for a one (1) year extension. If no extension is requested the PRD site plan approval shall be automatically revoked.... ”

The zoning regulations specifically grant various powers to the zoning administrator. However, the regulations do not grant to the zoning administrator the power to determine when “the approval of a [PRD] final site plan” occurs and therefore begins the two-year effective period of the PRD. Therefore, Dyess, in his letter, could only state his opinion regarding whether the two-year period began to run anew when the BCC approved the modification to the Gulf Highlands PRD on November 18, 2003. Whether the two-year effective period actually began anew on November 18, 2003, was not determined by the circuit court and is therefore not before this court on appeal. Dyess’s opinion regarding whether the two-year effective period was renewed upon the approval of the modification to the Gulf Highlands PRD is not determinative of whether that two-year period was actually renewed. Accordingly, the circuit court did not err in concluding that Dyess, in his letter of February 8, 2005, did not make a decision or determination that was appealable to the Board.

Hodges also argues that the circuit court erred in granting injunctive relief because, Hodges says, Gulf Highlands did not first exhaust available administrative remedies. Hodges argues that he should have been allowed to proceed with his appeal of Dyess’s letter to the Board.

“[The doctrine of exhaustion of administrative remedies] ‘requires that where a controversy is to be initially determined by an administrative body, the courts will decline relief until those remedies have been explored and, in most instances, exhausted.’ Fraternal Order of Police, Strawberry Lodge v. Entrekin, 294 Ala. 201, 209, 314 So.2d 663, 670 (1975). Entrekin approved the ‘exhaustion of administrative remedies’ doctrine found in United States v. Western Pacific Railroad Co., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956), which applies ‘where a claim is cognizable in the first instance by an administrative agency alone.’ ”

City of Huntsville v. Smartt, 409 So.2d 1353, 1357 (Ala.1982).

“It is well settled in Alabama that the general principle of ‘exhaustion of administrative remedies’ applies to zoning matters. City of Gadsden v. Entrekin, 387 So.2d 829, 833 (Ala.1980) (holding that ‘one must exhaust his remedies in a zoning matter before entering a court of law.’); Watson v. Norris, 283 Ala. 380, 217 So.2d 246 (1968). However, exhaustion of administrative remedies is a judicially imposed prudential limitation, not an issue of subject-matter jurisdiction. Furthermore, we recognize certain exceptions exist to the general rule of exhaustion of administrative remedies:
“ ‘The doctrine does not apply when (1) the question raised is one of interpretation of a statute, (2) the action raises only questions of law and not matters requiring administrative discretion or an administrative finding of fact, (3) the exhaustion of administrative remedies would be futile and/or the available remedy is inadequate, or (4) where there is the threat of irreparable injury.’
“Ex parte Lake Forest Property Owners Ass’n, 603 So.2d 1045, 1046-47 (Ala.1992) (citing City of Gadsden v. Entrekin, supra).”

Budget Inn of Daphne, Inc. v. City of Daphne, 789 So.2d 154, 157 (Ala.2000).

The circuit court was presented with the issue whether Dyess, in his letter, made a determination or decision that was appeal-able to the Board, pursuant to the zoning regulations. The issue before the circuit court was predominantly a legal issue regarding an application of the zoning regulations to the undisputed content of Dyess’s letter. The resolution of that issue did not require the exercise of administrative discretion or an administrative finding of fact. Accordingly, Gulf Highlands was not required to exhaust the administrative remedies available to it before petitioning the circuit court for injunctive relief.

AFFIRMED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

      . Section 9.9.2 of the Baldwin County zoning regulations state that a substantive change to a PRD is considered an amendment to that PRD and is subject to the same procedures specified for the approval of a PRD.

      . It is unclear from the record on appeal what interest Hodges has in the Gulf Highlands PRD. Gulf Highlands has not asserted that Hodges lacks standing.


author: WISE, Judge.

text:
    Willie Earl HEIDELBERG v. STATE of Alabama.
    CR-05-0383.
    Court of Criminal Appeals of Alabama.
    June 30, 2006.

      Willie Earl Heidelberg, pro se.
    Troy King, atty. gen., and Jean A. Ther-kelsen, asst. atty. gen., for appellee.
   WISE, Judge.

Willie Earl Heidelberg appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his 2003 guilty-plea convictions for second-degree receiving stolen property, third-degree escape, and seven counts of third-degree burglary, and his resulting sentences of 20 years’ imprisonment for each conviction, the sentences to run consecutively. Heidelberg’s convictions and sentences were affirmed on direct appeal in an unpublished memorandum; the certificate of judgment was issued on November 13, 2003. See Heidelberg v. State (CR-02-1171), 897 So.2d 1248 (Ala.Crim.App.2003).

Heidelberg filed the present petition on October 25, 2004, claiming that his trial counsel was ineffective for a number of reasons, that his guilty pleas were not knowingly, voluntarily, or intelligently entered, that his convictions were obtained by the use of a coerced confession made without proper Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), warnings, and that the trial court was without jurisdiction to render the judgments or to impose the sentences because of alleged defects in the complaints and the arrest warrants. The State filed a motion to dismiss the petition on the grounds that the claims were procedurally barred and that Heidelberg had not met his burden of pleading. Heidelberg filed a response to the State’s motion to dismiss, in which he took issue with the State’s characterization of the petition as challenging only one of his convictions, and rear-gued the merits of the claims asserted in his petition; Heidelberg further averred that the trial court was without jurisdiction to accept his guilty plea because, he says, he was incompetent when he entered the plea.

The circuit court issued an order summarily denying the petition on February 23, 2005. Heidelberg filed a petition for a writ of mandamus with this Court — docketed as case no. CR-04-1500 — alleging that he had not received notice that his petition had been denied; this Court, by unpublished order, granted Heidelberg’s petition and ordered the circuit court to set . aside its order denying the Rule 32 petition and to issue a new order from which Heidelberg could then file a timely notice of appeal. The circuit court set aside its original order and, instead of issuing a new order denying the Rule 32 petition, granted Heidelberg an out-of-time appeal. This Court dismissed that appeal, docketed as CR-04-2121, in an order issued on September 6, 2005, on the grounds that the circuit court had exceeded the scope of our order in CR-04-1500; we again instructed the circuit court to issue a new order denying Heidelberg’s Rule 32 petition and to give Heidelberg prompt notification so that he could, if he so chose, file a timely notice of appeal. On September 16, 2005, the circuit court complied with our instructions and issued a new order summarily denying Heidelberg’s Rule 32 petition. Heidelberg filed a written notice of appeal, and this appeal followed.

Heidelberg argues that the circuit court improperly characterized his Rule 32 petition as challenging only one of his convictions, rather than all of the convictions entered at the guilty-plea proceeding and set out in his Rule 32 petition. Heidelberg also argues that summary denial was improper because he had pleaded sufficient and specific facts showing that he was entitled to relief.

In his Rule 32 petition, Heidelberg asserted that he was attacking his March 14, 2003, convictions in Mobile Circuit Court for seven counts of third-degree burglary, one count of third-degree escape, and one count of second-degree receiving stolen property, and his resulting sentences totaling 180 years in prison. The petition was docketed in circuit court as CC-2002-2545.60, which is the corresponding case number for the second-degree receiving-stolen-property conviction. In its motion to dismiss, the State summarized the history of Heidelberg’s case as follows:

“January 17, 2003 the Petitioner pleaded guilty to an amended charge of Receiving Stolen Property second degree after being indicted for five counts of third degree burglary and one count of first degree receiving stolen property. His appointed attorney, Habib Yazdi, was present. March 14, 2003 Petitioner was sentenced to 20 years in prison. He appealed. He also moved to withdraw his guilty plea. The court denied the motion. October 27, 2003 the conviction was affirmed on appeal. November 17, 2003 this court received the certificate of affirmance from the Alabama Court of Criminal Appeals.”

(C. 28.) Heidelberg filed a response to the State’s motion to dismiss, in which he stated:

“Initially, petitioner objects to the District Attorney[’s] attempt to limit the petitioner’s petition for relief from conviction and sentence, to only his conviction of receiving stolen property [in the] second degree.
“Petitioner submits as stated in Number 4 of his petition, he challenges his convictions for third degree burglary (7 counts); third degree escape (1 count), as well as his conviction for receiving stolen property [in the] second degree.”

(C. 31.) Heidelberg further referenced multiple convictions and sentences in his response to the State’s assertion that his claims were not sufficiently or specifically pleaded. In its original order summarily denying Heidelberg’s petition, the circuit court set out the procedural history of the case as follows:

“January 17, 2003 the Petitioner pleaded guilty to an amended charge of Receiving Stolen Property second degree after being indicted for five counts of third degree burglary and one count of first degree receiving stolen property. His appointed attorney, Habib Yazdi, was present. March 14, 2003 Petitioner was sentenced to 20 years in prison. He appealed. He also moved to withdraw his guilty plea. The court denied the motion. October 27, 2003 the conviction was affirmed on appeal. November 17, 2003 this court received the certificate of affirmance from the Alabama Court of Criminal Appeals.”

(C. 36.)

Other than a handwritten notation at the top of the Rule 32 form, all of the pleadings in the circuit court were styled as CC-02-2545.60. Contrary to the State’s assertion on appeal, Heidelberg clearly challenged in his response to the State’s motion to dismiss the petition the characterization of the petition as challenging only the single conviction. We are aware too that Rule 32.1, Ala.R.Crim.P., provides that “[a] petition that challenges multiple judgments entered in more than a single trial or guilty-plea proceeding shall be dismissed without prejudice.” However, we have reviewed the record from Heidelberg’s direct appeal, and it is clear that all nine of the convictions and sentences referenced in Heidelberg’s petition, in his response to the State’s motion to dismiss, and in his brief on appeal were entered in a single guilty-plea proceeding. Thus, the prohibition in Rule 32.1 against challenging multiple judgments entered in more than one guilty-plea proceeding is inapplicable. We can find no explanation in the record as to why the petition was considered as apparently challenging a sole conviction and sentence, when the petition itself clearly referenced each of the convictions. Thus, we must remand this case for further action by the circuit court.

Further, it appears that several of the ineffective-assis.tance-of-eounsel grounds raised in the Rule 32 petition were pleaded sufficiently and with specificity as required by Rules 32.3 and 32.6(b), Ala. R.Crim. P. As this Court noted in Boyd v. State, 913 So.2d 1113 (Ala.Crim. App.2003):

“ ‘Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.’ Boyd v. State, 746 So.2d 364, 406 (Ala.Crim.App.1999). In other words, it is not the pleading of a conclusion ‘which, if true, entitle[s] the petitioner to relief.’ Lancaster v. State, 638 So.2d 1370, 1373 (Ala.Crim.App. 1993). It is the allegation of facts in pleading which, if true, entitle a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala.R.Crim.P., to present evidence proving those alleged facts.”

913 So.2d at 1125.

Heidelberg asserted, among other things, that he was prejudiced by counsel’s alleged failure to investigate the case to learn that a number of the victims could not identify him as being involved in any crime and for not investigating his claim that he was mentally incompetent at the time he entered his pleas.

Contrary to the State’s assertion in its motion to dismiss the petition, the ineffective-assistance-of-counsel claims are not precluded by ' any of the provisions of Rules 32.2(a) or 32.2(d). This is Heidelberg’s first Rule 32 petition, and the trial transcript was not prepared in time for Heidelberg to raise the allegations in a timely filed motion to withdraw his guilty plea. Thus, the present petition, Heidelberg’s first, which was filed within the one-year limitations period, represents Heidelberg’s first opportunity to challenge his trial counsel’s performance.

Additionally, Heidelberg argued in his petition that he was under the influence of mind-altering medication at the time he entered his plea. • Further, in his response to the State’s motion to dismiss, Heidelberg averred that he had a history of mental illness and that he was “legally incompetent” at the time he entered his guilty plea. (C. 34.)

In its original order denying the petition on February 23, 2005 — an order that was set aside — the circuit court found that because the case action summary indicated that the trial court had ascertained at the plea proceeding that Heidelberg was aware of his rights, the nature of the offense, and the consequences of his guilty plea, he had “failed to plead a right to relief. Rule 32.7” and that summary denial was proper for failure to state a claim, to plead with specificity, or to raise any issues of material fact or law. (C. 37.) However, even if this order had not been withdrawn, the order does not sufficiently address Heidelberg’s allegation that he was incompetent at the time of his plea. Further, in the circuit court’s subsequent order issued on September 16, 2005, the order from which this appeal is taken, the circuit court stated only: “Once more into the breach. Pursuant to the Court of Criminal Appeals[ ] Order of September 6, 2005, appellant Heidelberg’s Rule 32 petition is DENIED. The clerk’s office is hereby directed to give Mr. Heidelberg ‘prompt notification’ of this denial so that he may timely file notice of appeal.” (C. 38.)

We recognize the heavy caseload under which the trial courts of this State toil, and we are aware that Rule 32 petitions add to that already heavy burden. However, in this case, we are left with a petition that articulated at least some claims that were minimally sufficient grounds to warrant a response, and an order denying the petition without stating any grounds. Further, even if the original order had not been set aside at this Court’s direction, we cannot say that that order sufficiently identified which of Heidelberg’s claims were insufficiently pleaded and which were due to be dismissed on other grounds, and, further, the grounds of preclusion that were stated for the ineffective-assistance claims were improper. Finally, we are unable to ascertain from the record why the discrepancy exists between Heidelberg’s assertion that his petition challenges nine convictions and the State and circuit court’s characterization of the offense as a single offense. Thus, it seems that the only course of action is for this Court to remand this cause to the circuit court for that court to vacate its September 16, 2005, order summarily denying the petition.

On remand, the circuit court should either (1) docket the petition as challenging all of the convictions set out in the petition, consider the claims in Heidelberg’s petition as they relate to all of his convictions, and issue a new order ruling on Heidelberg’s petition; or (2) issue a new order ruling on Heidelberg’s petition, explaining why the limitation of the petition to challenging only a single conviction was proper.

In either event, should the circuit court deem it necessary to hold an evidentiary hearing addressing Heidelberg’s claims, the court’s return to remand shall include a transcript of those proceedings. We note that Rule 32.9(d), Ala.R.Crim.P., requires the trial court to “make specific findings of fact relating to each material issue of fact presented.” See also Ex parte Walker, 652 So.2d 198 (Ala.1994); and Smith v. State, 665 So.2d 954 (Ala. Crim.App.1994).

Finally, we note that

“ ‘if the court finds that a particular allegation .fails to meet the requirements of specificity of Rule 32.6(b), we encourage the court to so note with particularity in its written findings. It is to do likewise if it finds that a particular allegation fails to state a claim or to present any material issue of fact or law that would entitle [the petitioner] to relief. In other words, the court’s written findings are to address individually each claim not precluded by Rule 32.2.’
“Harper v. State, 676 So.2d 949, 950 (Ala.Crim.App.1995), aff'd on return to remand, 698 So.2d 796 (Ala.Crim.App.1996) (table). Finally, if the court’s findings are based on its personal knowledge of [the petitioner’s] guilty-plea proceedings, then the order should so state. See Sheats v. State, 556 So.2d 1094, 1095 (Ala.Crim.App.1989).”

Dedeaux v. State, [Ms. CR-04-0792, Dec. 23, 2005] - So.2d -, - (Ala.Crim.App.2005). These findings should be contained in the circuit court’s new order ruling on Heidelberg’s petition. The trial court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, PM., and COBB and SHAW, JJ., concur. BASCHAB, J., concurs in the result.

      . The trial court case numbers for Heidelberg’s convictions are CC-02-2545, CC-02-2546, CC-02-2547, CC-02-2548, CC-02-2549, CC-02-2550, CC-02-2551, CC-02-2552 and CC-02-3456.

      . This characterization was set out in parts one through four of the Rule 32 form that provides for the petitioner to set out the location of his conviction or convictions, the date of judgment, the length of sentence, and the nature of offense (all counts). Additionally, throughout the attachment to his petition, in which he set out the specific allegations supporting his claims, Heidelberg’s claims were presented in terms of multiple victims, multiple complaints, multiple crimes, etc.

      . There is a handwritten entry in the space provided in the Rule 32 form for the case number. Although it is unclear exactly what that entry provides in total, it appears that the handwritten entry references either two case numbers or a series of case numbers. The entry reads: "CC 02 2545 2551.” The entry denoted in the preceding quote consists of either two or three letters; also, the 2545 is written immediately above the 2551, giving rise to the inference that the entry was intended to indicate that the case number was the series of cases commencing with CC-02-2545 and ending with CC-02-2551.

      . This Court may take judicial notice of its own records. See Hull v. State, 607 So.2d 369, 37.1 (Ala.Crim.App. 1992).

      . We note that none of Heidelberg’s claims are unique to any one of his convictions and it' might seem a waste of judicial economy to return the petition to the circuit court for further action, because the circuit court's dismissal of the petition as it relates to Heidelberg’s conviction in case no. CC-02-2545 is seemingly applicable to any and all of his convictions. However, because it does not appear that the circuit court ever docketed the petition as challenging the remaining convictions, were Heidelberg ever to file a subsequent Rule 32 petition challenging his convictions, this Court would then be faced with the conundrum of holding that petition barred by the prohibition against successive petitions in Rule 32.2(b), Ala.R.Crim.P., because it was the second petition challenging the guilty-plea proceeding; time-barred by Rule 32.2(c); and precluded by Rule 32.2(a)(4), because it was raised in a previous collateral proceeding. Thus, we find it necessary to return the petition to the circuit court to address the remaining convictions.

      .This contention was raised in the context of an ineffective-assistance-of-counsel challenge and a challenge to the voluntariness of the guilty plea.