text:
    Ex parte Marion DUNN. (In re Board of School Commissioners of Mobile County v. Marion Dunn).
    1051387.
    Supreme Court of Alabama.
    Jan. 5, 2007.

      Gregory B. Stein of Stein, Brewster & Pilcher, L.L.C., Mobile; and Sam Held-man of Gardner, Middlebrooks, Gibbons, Olsen & Walker, P.C., Washington, D.C., for petitioner.
    Frank G. Taylor of The Atchison Firm, P.C., Mobile, for respondent.
    David R. Boyd, Dorman Walker, and JoClaudia Moore of Balch & Bingham, LLP, Montgomery, for amicus curiae Alabama Association of School Boards, in support of the respondent.
   WOODALL, Justice.

This case arises under the Teacher Tenure Act, § 16-24-1 et seq., Ala.Code 1975 (“the Act”). We reverse the judgment of the Court of Civil Appeals.

Section 16-24-8 provides the grounds for the cancellation of the employment contract of a tenured teacher:

“Cancellation of an employment contract with a teacher on continuing service status may be made for incompetency, insubordination, neglect of duty, immorality, failure to perform duties in a satisfactory manner, justifiable decrease in the number of teaching positions or other good and just cause, but cancellation may not be made for political or personal reasons.”

On December 21, 2004, the superintendent of the Mobile County Public School System recommended to the Board of School Commissioners of Mobile County (“the Board”) that it terminate the employment of Marion Dunn, a tenured science teacher and the head varsity basketball coach at B.C. Rain High School in Mobile, based upon Dunn’s alleged “failure to perform [his] duties in a satisfactory manner and other good and just cause.” The proposed termination resulted from Dunn’s institution of a physically abusive form of team discipline during basketball practice.

The Board voted to terminate Dunn’s employment, and Dunn filed with the superintendent a written notice of contest of the Board’s action, as allowed by § 16-24-9(b). Pursuant to § 16-24-20(b), the parties selected an experienced employment-law arbitrator as the hearing officer.

The responsibilities of the hearing officer are found in § 16-24-10(a):

“The hearing officer shall conduct a de novo hearing and shall render a decision based on the evidence and/or information submitted to the hearing officer. The hearing officer shall determine which of the following actions should be taken relative to the employee: Cancellation of the employment contract, a suspension of the employee, with or without pay, a reprimand, other disciplinary action, or no action against the employee. The hearing officer shall render a written decision, with findings of fact and conclusions of law, within 30 days after its hearing.”

An ore tenus hearing was held on April 7, 2005. On April 30, 2005, the hearing officer rendered his written decision. The hearing officer found beyond question “that the Board ha[d] reasonably and substantially proven that Dunn engaged in serious misconduct, as set forth in the five charges[] made in the superintendent’s recommendations to the Board.” However, the hearing officer did not cancel Dunn’s employment contract. Instead, he ordered that Dunn be barred from any coaching position for four years, that he be suspended without pay for 30 days, and that he apologize to his players orally and to each of their parents or guardians in writing. Dunn’s employment as a science teacher was not terminated.

The Board appealed the decision of the hearing officer to the Court of Civil Appeals. The Court of Civil Appeals, exercising the discretion given to it by § 16-24 — 10(b), agreed to hear the appeal. After reviewing the record before the hearing officer and the briefs of the parties, the Court of Civil Appeals, in a plurality opinion issued per curiam, found the hearing officer’s decision arbitrary and capricious, reversed that order, and, as allowed by § 16 — 24—10(b), remanded the case for the parties to conduct another hearing consistent with the procedures set forth in the Act. Board of Sch. Comm’rs of Mobile County v. Dunn, 962 So.2d 805 (Ala.Civ.App.2006).

Dunn petitioned this Court for certiorari review. We granted his petition to determine whether the Court of Civil Appeals erred in concluding that the hearing officer’s decision was arbitrary and capricious. See Rule 39(k), Ala. R.App. P. (“The scope of review includes the application of the law to the stated facts.”).

The Act provides, in pertinent part, that “[t]he decision of the hearing officer shall be affirmed on appeal unless the Court of Civil Appeals finds the decision arbitrary and capricious .... ” § 16-24-10(b)(emphasis added). “ ‘On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil Appeals.’ ” Ex parte Helms, 873 So.2d 1139, 1143 (Ala.2003)(quoting Ex parte Toyota Motor Corp., 684 So.2d 132, 135 (Ala.1996)).

The plurality decision of the Court of Civil Appeals properly acknowledges that the Act gives hearing officers “broad decision-making authority over teacher terminations.” Dunn, 962 So.2d at 809. Consequently, their decisions are “subject to very limited appellate review.” 962 So.2d at 809. Indeed, by the explicit terms of the Act, the decision of a hearing officer must be affirmed on appeal unless the decision is found to be arbitrary and capricious.

The plurality opinion of the Court of Civil Appeals correctly states that the arbitrary-and-capricious standard of review is “extremely deferential,” Dunn, 962 So.2d at 808, and that the reviewing court may not substitute its judgment for that of the hearing officer. That opinion also aptly states that where “reasonable people could differ as to the wisdom of a hearing officer’s decision!,] ... the decision is not arbitrary.” Dunn, 962 So.2d at 809. Additionally, we find no fault with the following statement in that opinion:

“If the decision-maker has ‘ “examined the relevant data and articulated a satisfactory explanation for its action, including a ‘rational connection between the facts found and the choice made,’ ” ’ its decision is not arbitrary. See Alabama Dep’t of Human Res. v. Dye, 921 So.2d [421, 426 (Ala.Civ.App.2005) (quoting Prometheus Radio Project v. FCC, 373 F.3d [372, 389 (3d Cir.2004) ](quoting in turn Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))).”

Dunn, 962 So.2d at 810. We must honor these principles in conducting our review.

As previously mentioned, the proceedings to terminate Dunn’s employment followed his institution of a physically abusive form of team discipline during basketball practice. The substance of the testimony concerning Dunn’s wrongdoing is described at length in the opinion of the Court of Civil Appeals:

“At the hearing on April 7, 2005, the evidence established that before the start of the 2004-2005 basketball season, Dunn, acting as the head coach of the varsity basketball team, agreed, at the request of two of his players, to institute a form of team discipline known as the ‘one-minute drill’ or ‘circle’ during basketball practice. Pursuant to that form of team discipline, when the team thought that one of its members needed to be disciplined for violating a team rule or for not performing up to capacity, the team members would encircle the player to be disciplined and hit or kick that player in the center of the circle for 15, 30, or 60 seconds, depending on the offense, while Dunn stood by and timed the punishment with a stopwatch. The record indicates that Dunn decided the length of time of the circle drill. Although Dunn established certain ground rules for the circle drill by prohibiting, for example, blows to the head, the evidence indicated that the players themselves determined whether and to what extent discipline was warranted for a teammate. The evidence tended to show that, during the 6-week period before the start of the 2004-2005 basketball season, the circle drill was used on 11 occasions.
“D.W., a sophomore on the basketball team, testified that he had been subjected to the circle drill on two occasions. According to D.W., if a player decided not to participate in the circle drill they ‘would probably have to get off the team.’ D.W. testified that, on one occasion, Dunn told him to fight another player, J.Y., after D.W. was late to practice. As a result of that fight, D.W. broke his hand.
“On November 6, 2004, about one week before the first home basketball game, K.A., a 16-year-old member of the basketball team, was subjected to the circle drill twice during a team practice session, the first time for being late to practice and the second time for not trying his best during a defensive drill. Dunn directed members of the team to ‘give [K.A.] a minute’ in the circle after K.A. was late to practice. Approximately 30 minutes later, K.A.’s teammates decided to subject K.A. to another circle drill against the wishes of Dunn. Dunn testified that he did not believe K.A. deserved the second circle drill.
“K.A. described having been ‘stomped, kicked and punched’ inside the circle, after which, he said, he announced that he was quitting the team and he left the practice court. As a result of being subjected to the circle drill, K.A. suffered scratches and bruises to his ribs, legs, and back. K.A. complained to his aunt, a school nurse at another public school, of being bruised and sore, and he told her that he was ‘tired of getting beat.’ K.A.’s aunt observed bruises, welts, and scratches on K.A.’s back and right arm. K.A.’s aunt went to the school and talked to Dunn, as well as the school principal, and the school’s resource officer. The resource officer subsequently interviewed Dunn and all of the players on the team.
“Dunn later met with the school principal and two county education officials — the executive director of high schools and the assistant superintendent for human resources. During that meeting, Dunn acknowledged that he had made a mistake in using the circle drill as a form of discipline and promised that it would not happen again. The executive director of high schools wished Dunn a successful season, and Dunn assumed the matter was closed. Later that night, however, the principal telephoned Dunn and informed him that the news media had learned of the incident with K.A. and that he was placing Dunn on administrative leave.”

Dunn, 962 So.2d at 806-07.

The hearing officer also heard testimony concerning Dunn’s otherwise positive influence as a teacher and coach. The Court of Civil Appeals’ opinion accurately summarizes this testimony:

“At the hearing before the hearing officer, a number of the players testified. Without exception, the players praised Dunn, stating that he had been a positive influence in the lives of his students and players, and opining that Dunn’s use of the circle drill did not warrant ending his career as a teacher and a coach. The players stated that Dunn had made schoolwork a priority over basketball by encouraging good study habits, requiring them to submit academic progress reports from all their teachers, arranging for tutoring and study sessions, and stressing that they should avoid the use of drugs and plan for college.
“Many of the players’ parents, relatives, and guardians also testified. All stated that they had been unaware of Dunn’s use of the circle drill until it was made public by the news media, and all stated that they opposed that form of discipline. With the exception of K.A.’s aunt, all the adults who testified stated that Dunn’s employment should not be terminated because of his use of the circle drill. Most of the parents related incidents indicating that Dunn had been a role model, a mentor, and even a father figure for their sons. They testified that Dunn had helped their sons improve their grades, their attitudes, their personal appearance, and their spiritual lives. Several parents reported that Dunn had invited team members to his home, to church, and to Sunday dinner.
“At the time of the hearing, Dunn had taught for at least 20 years and had coached basketball for 13 years. Dunn has both a bachelor’s and a master’s degree in biology. His past performance evaluations have been in the top two categories. Dunn testified that he knew that using the circle drill as a form of discipline was wrong but that he allowed the circle drill to continue anyway. Dunn explained that the positive benefit brought by the players’ participation in the circle drill overshadowed the knowledge that implementing the circle drill was wrong. Dunn concluded his testimony by assuring the hearing officer that a lapse in judgment like that would not reoccur.”

Dunn, 962 So.2d at 807-08.

In his written decision, the hearing officer concluded that Dunn had engaged in reprehensible misconduct, explaining, in pertinent part:

“Coach Dunn’s conduct was wrong. It was very wrong. In trying to gain their respect and confidence, permitting them to ‘do something extra’ as they wanted, in an effort to discipline themselves, he went far over the line. Athletes may be in need of discipline and seek ways from their coaches to impose it on them, but this coach made beatings acceptable at this high school and called it discipline.
“Coach Dunn allowed his players to dictate who would be punished and why they should be punished. By so doing, he gave in to what appears to be the street world of some of his players. There, street justice attempts to prevail over rules of society. By agreeing to their way, he not only relinquished control of his team, but more critically, he sent wrong messages — it was acceptable at school to impose this barbaric ritual; beatings could be acceptable rather than criminal; players could make decisions on what should be right and wrong; society could be manipulated to accept this warped notion of discipline. There are so many wrong messages that Coach Dunn’s lack of judgment as a reliable basketball coach, his capabilities as an adult with responsibility to instill good judgment and morals in young men in athletics, and his sense of decency must be seriously questioned.
“In their own world of basketball, it is clear that many of these players believed they were doing nothing wrong, especially with the blessing of their head coach. Dunn did not seem to have any misgivings. He did not stop them from beating [K.A.], even though he disagreed with their decision that he deserved punishment. His caving into his players’ street instincts, rather than instilling decent and sensible values as a basketball coach, is indefensible.
“Just as reprehensible is his behavior when [J.L.], his star player, came to him and complained about the punishment being wrong, the only player to do so. Dunn told him he had to keep doing this ritual because they did it in college. Yet, never before had Dunn justified it based on it being accepted at colleges. The absurdity of colleges permitting beatings of players is beyond comprehension to most people. But to an impressionable young man, who has the potential to use his considerable basketball skills for college scholarships, Coach Dunn’s words had meaning. [J.L.] and the rest of the team simply trusted his misguided judgment. Using this seemingly false statement to instill some sort of fear in [J.L.], to keep him in line with street justice at practice, to resort to colleges as a reason for the circle, and to exploit [J.L.’s] desire to play in college, further proves that Dunn lacks the basic capabilities to responsibly lead young men.
“Mind boggling, too, is Dunn’s effort at this hearing to somehow downplay the seriousness of his misconduct. First, he contends that the punishment circle only happened occasionally, and merely four or five players were subjected to it in a short six-week period. Factually he is incorrect — on at least 11 occasions, more than twice the number he claimed, players were beaten in the circle, including one time when two players squared off with each other at the direction of Coach Dunn. But the number is mostly irrelevant. Even if it only happened once, or as he said five times, it was enough to risk serious physical injury to players he was duty bound to protect from such injury. His telling players to avoid hitting in the head and face ignored completely that blows to vital organs, the neck and throat, and other vulnerable areas of their defenseless bodies could have resulted in severe injuries and even fatalities. Coaching athletics carries with it a clear responsibility to make certain that the players’ health and welfare is protected at all times. Parents place their utmost trust in coaches to do just that; coaches have in a sense a fiduciary responsibility to keep this trust or at least a strong moral responsibility to do so.
“The testimony from his own players, as well as his admissions at this hearing, unquestionably establish that on these many occasions he chose not to protect them. And these are not isolated instances as he claims. Testifying that at worst it happened only once a week, is a weak effort to somehow cover-up what instead was a six week long parade of innocent players being trampled while he stood by and timed these cruel beatings.
“Moreover, the contention that no physical harm occurred is misplaced. Serious physical injury occurred when Coach Dunn allowed two players to engage in hand-to-hand combat rather than be victims of the circle. One of the players broke his hand. Also, after [K.A.] wanted to quit the team and Dunn subjected him instead to another beating by the players, he came away with bruises, cuts and scratches and had difficulty walking. Then, there is the unknown mental damage to any number of the players. It would not be a stretch to come to this conclusion considering that each one of them was balled up in the middle of this circle while being kicked and punched repeatedly. Dunn’s insensitivity to all of this ill-conceived behavior cannot be tolerated.
“His second argument that he was ‘blinded’ by the progress of his team, suggests that this progress can be attributed to the beatings. It is a suggestion that Dunn even referenced in his testimony. There must be deep concern with this notion. To even suggest that organized beatings of his players could in any way be related to the progress of his team is outright scary. If a seemingly intelligent young man, with strong religious beliefs, can succumb to this type of ‘blindness’ then there is absolutely a strong and immediate need to send a clear and convincing message to him that he will never forget.
“Dunn also contends that the punishment was about to end; he never intended for it to continue once the season started on November 13. The problem is that there is simply no assurance that but for the intervention of [K.A.’s] aunt on November 8, Dunn would have stopped this punishment. Certainly if Dunn’s assistant is any indicator, it was not about to end at that time. When [K.A.’s aunt] started her confrontation process by first seeking out Dunn’s assistant, he labeled it as mere discipline and then added words that seemed to make little sense, ‘you give it as you get it.’ The only sense that [K.A.’s aunt] could make of it was that she needed to turn Dunn in right away. This punishment by beating was not about to end.
“And when she then confronted Dunn he never stated it would stop. Instead he simply informed [her] that he understood her concern and nothing else. He failed to apologize to her and failed to show any concern about [K.A.’s] physical state after these two beatings he witnessed and approved. Dunn had another opportunity to undo his insensitive response to [K.A.’s aunt] in the presence of the principal and during his interview with the security chief. Still, he showed no compassion for harming his players and offered no words of apology. In this session with the principal and [K.A.’s aunt] he merely explained that her nephew was ‘dogging it,’ which suggested that he was somehow deserving of a beating. To be expected Dunn was contrite at the hearing and for that he is given some credit. But his lack of forgiveness at these critical junctures in November cannot be so easily forgiven when deciding what should be done about his gross misconduct.
“The notion that discipline in sports can go so far as allowing for players to be hit and kicked as a means to punish them cannot be acceptable. When the assistant coach told [K.A.’s] aunt that all her nephew received was ‘discipline’ by the team, he conveyed th& notion, emanating from the head coach, that under the umbrella of discipline, virtually anything goes. There are well-publicized cases of coaching icons that have lost their jobs over temper-tantrums that resulted in bouts with players, or more recently a well-known basketball coach with many years college experience who was indefinitely suspended by his school from coaching for sending his player on the court to intentionally harm an opposing player. There is enough violence in the streets already without coaching role models adopting those tactics for discipline at school-sponsored athletics.”

The hearing officer’s conclusion that Dunn had engaged in the serious misconduct with which he had been charged led the hearing officer to ban Dunn from coaching for 4 years, suspend him without pay for 30 days, and require him to apologize to his players and their parents or guardians. However, the hearing officer chose to allow Dunn to retain his position as a science teacher. In doing so, he explained:

“Dunn contends that the Hearing Officer take into account his entire employment record, including his many positive attributes as recounted at this hearing, and either mitigate the cancellation action or completely restore him to his full employment as teacher and coach under his contract. The Alabama Teacher Tenure Act permits the Hearing Officer to consider more than just the act of misconduct. Section 16 — 24—20(c) provides: ‘During all hearings conducted before a hearing officer pursuant to this article, the hearing officer may consider the employment history of the teacher, including, but not limited to, matters occurring in previous years.’ (Emphasis added.) Although not mandatory, the legislature clearly showed concern that a teacher’s otherwise good record could be considered.
“This type of evidence is of particular relevance under Section 16-24-10, which permits the hearing officer a fair amount of latitude when considering remedy or ‘actions,’ as they are termed in this law, once making findings of fact and conclusions. It provides: ‘The hearing officer shall determine which of the following actions should be taken relative to the employee: Cancellation of the employment contract, a suspension of the employee, with or without pay, a reprimand, other disciplinary action, or no action against the employee.’ (Emphasis added.)
“This case thus comes down to whether cancellation of Coach Dunn’s employment contract and his removal from this school district, which could effectively end his teaching and coaching careers, is the just and proper action in these circumstances. Given this Alabama law, several questions occur when consideration of the remedy is examined. First, whether the hearing officer should take into account Dunn’s employment history, and whether this also includes evidence regarding his role with students and players; if so, whether this evidence is sufficient to mitigate the termination decision. If such mitigation is considered and accepted, the final question is which ‘actions’ or remedies under this Alabama law are best appropriate.
“The Hearing Officer has already expressed his disdain for Coach Dunn’s actions. At first blush there seems little need to consider the rest of his history inasmuch as his misconduct is so outrageous. On the other hand, it would be a huge oversight to then ignore his spotless employment record and other evidence presented at this hearing. There is no record of any discipline. His performance evaluations, at least the few made available in this hearing, show him in one of the top two rated categories for these years. There are no evaluations for the last two years.
“There is also the testimony of every witness, with the exception of [KA.’s] aunt, who wants Dunn to remain as a teacher and coach at Rains, as well as the absence of any witnesses from the school’s administration. Moreover, virtually all of those who testified detailed many positive attributes about his character and his ability to positively influence students and his players. He believed in education first — his emphasis on study groups, tutors, reporting grades to him, instituting a progress report form for teachers, meeting regularly with a guidance counselor, and encouraging college credit courses. He was able to improve grades, in some cases dramatically, and he made college a realistic goal. These are valuable assets in a teacher that are especially significant in a Title I school, where emphasis on bettering the educational process is significant and at times difficult, especially given the problems in finding teachers to stay in these schools. [G.H.]: ‘... he just doesn’t want you to play basketball for him. He wants you to get something out of school, go get a good education. And he keeps the players out of trouble.’
“Parents and guardians, too, recognized his valuable contribution to the school. Testimony by the grandmother of one player is a good example. ‘He is the only positive or major role around there ... he’s the only person I know that ... tries at that school as far as discipline and academics.’ [J.L.’s] aunt and guardian related: ‘We don’t have enough ... in the system like him to help our kids.’
“There is thus much good to also consider in weighing the proper action. In sorting out these fine attributes, it is clear that Dunn had the best educational interests of his students at heart and took many positive steps on their behalf. These are valuable assets; to strip them away from this inner city school, which may have few assets, can hurt more than help it. This record contains no evidence that Dunn lacks the qualities needed of a good and sound teacher.
“But the same cannot be said as a basketball coach. His naivety, insensitivity, lack of contriteness and overall horrendous judgment by allowing his players to institute street justice and bring it into the school cannot in any form be tolerated. It is imperative that a loud and clear signal be sent not just to Dunn, but also the high school community and in a broader sense the Mobile community — the children in its schools cannot ever be subjected to cruel treatment that is approved by one of its coaches. And for these reasons, the actions ordered in the next section of this decision are intended to make it unmistakably known that regardless of whether the local community feels one way, issues of what is right and wrong must prevail.
“Alabama law allows the hearing officer sufficient discretion to fashion a remedy or ‘actions’ tailored to the decision. In deciding these actions, the Hearing Officer has attempted to balance a number of vital concerns: Making certain that Coach Dunn fully understands the seriousness and severity of his conduct, assuring the school and the community that it will never happen again, and at the same time preserving some of the good in Coach Dunn without permanently damaging him and others.”

According to the plurality decision of the Court of Civil Appeals, “the hearing officer’s decision was both arbitrary and capricious. The hearing officer’s conclusions regarding Dunn’s actions as a basketball coach and his record as a teacher are inconsistent.” Dunn, 962 So.2d at 812. Presiding Judge Crawley dissented from the court’s decision, stating, in pertinent part:

“The main opinion concludes that the hearing officer’s determination to impose a four-year ban on Dunn’s coaching but to reinstate Dunn to his teaching position was inconsistent and, therefore, arbitrary. I disagree.
“The hearing officer acknowledged the apparent inconsistency in treating the coaching position differently from the teaching position when he stated:
“ ‘The Hearing Officer has already expressed his disdain for Coach Dunn’s actions. At first blush there seems little need to consider the rest of his history inasmuch as his misconduct is so outrageous. On the other hand, it would be a huge oversight to then ignore [Dunn’s] spotless employment record and other evidence presented at this hearing.’
“The hearing officer then explained in detail the reasons he considered Dunn’s unblemished employment history as a teacher separately from Dunn’s misconduct as a coach in determining whether to uphold the Board’s termination of Dunn’s teaching contract. The reasons were cogent, compelling, and supported by the evidence presented at the hearing. Although reasonable people might disagree about the wisdom of the hearing officer’s decision to revoke the Board’s cancellation of Dunn’s teaching contract, it cannot be argued that the decision was supported by facts and reasons, represented a balancing of competing interests, and was authorized by Alabama law. The hearing officer summarized his decisional process:
“ ‘Alabama law allows the hearing officer sufficient discretion to fashion a remedy [or] “actions” tailored to the decision. In deciding these actions, the Hearing Officer has attempted to balance a number of vital concerns: making certain that Coach Dunn fully understands the seriousness and severity of his conduct, assuring the school and the community that it will never happen again, and at the same time preserving some of the good in Coach Dunn without permanently damaging him and others.’ ”

Dunn, 962 So.2d at 813-14 (Crawley, P. J., dissenting). We agree with Presiding Judge Crawley.

Section 16-24-10(a) gives the hearing officer the authority to determine the appropriate disciplinary action. In exercising this authority, “the hearing officer may consider the employment history of the teacher, including, but not limited to, matters occurring in previous years.” § 16 — 24—20(c). In this case, the hearing officer’s decision clearly reflects his careful consideration of Dunn’s entire “employment history,” including the good as well as the indefensible. Only after doing so did the experienced hearing officer determine what he considered to be the appropriate sanction for Dunn’s misconduct. Although we may disagree with the wisdom of the decision, we may not substitute our judgment for that of the hearing officer. In our opinion, the hearing officer’s decision is not arbitrary, because it is clear that he examined all the facts, articulated a satisfactory explanation for his action, and stated a rational connection between the facts and the discipline he imposed.

The Board argues that the “hearing officer ... was arbitrary and capricious in placing too much emphasis on mitigating factors, considering the egregious nature of the misconduct itself.” Board’s brief, at 24. However, it is the hearing officer’s responsibility to weigh the evidence, and this Court may not substitute its judgment for that of the hearing officer. The Act allowed the hearing officer to consider the “mitigating factors” evident in Dunn’s employment history, both as a coach and as a teacher. We will not second-guess his decision.

For the foregoing reasons, we reverse the judgment of the Court of Civil Appeals and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . According to the hearing officer's decision, the superintendent had "recommended that Coach Dunn's contract be cancelled for ... unsatisfactory performance in administering the basketball program; failure to properly supervise his players during practice; allowing his players to 'strike, hit and kick other players as a form of discipline’; failure to follow proper disciplinary procedures; [and] placing players under his supervision ‘at risk of physical harm.' "


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY v. Marion DUNN.
    2040708.
    Court of Civil Appeals of Alabama.
    Feb. 9, 2007.
    Frank G. Taylor and Carvine L. Adams of The Atchison Firm, P.C., Mobile, for appellant.
    Gregory B. Stein of Stein, Brewster & Pilcher, L.L.C., Mobile; and Sam Held-man of Gardner, Middlebrooks, Gibbons, Kittrell, Olsen, Walker & Hill, P.C., Washington, D.C., for appellee.
   After Remand from the Alabama Supreme Court

PER CURIAM.

The prior judgment of this court has been reversed and the cause remanded by the Supreme Court of Alabama. Ex parte Dunn, 962 So.2d 814 (Ala.2007). On remand, and in compliance with the Supreme Court’s opinion, we hereby affirm the decision of the hearing officer.

AFFIRMED.

All the judges concur.


author: CRAWLEY, Presiding Judge.

text:
    BRADLEY OUTDOOR, INC. v. CITY OF FLORENCE and Gary Williamson. Bradley Askew and Bradley Outdoor, Inc. v. Board of Zoning Adjustment of the City of Florence.
    2040915 and 2040916.
    Court of Civil Appeals of Alabama.
    Sept. 8, 2006.
    Certiorari Denied Feb. 9, 2007 Alabama Supreme Court 1060027.

      John M. Kennemer, Tuscumbia, for appellants.
    Michael C. Quillen of Walston Wells Anderson & Birchall, L.L.P., Birmingham, for appellees.
    William T. Musgrove III, city atty., for appellee City of Florence.
   On Application for Rehearing

CRAWLEY, Presiding Judge.

In May 2001, Bradley Outdoor, Inc., a company that erects billboards, began submitting to the building department of the City of Florence drawings related to the planned construction of an off-premise advertising billboard on property owned by Bank Independent (“the Bank Independent billboard”). Bradley Outdoor’s owner-president, Bradley Askew, discussed the Bank Independent billboard with Gary Williamson, the head of the City’s building department, and Kathy Austin, the City’s lot and sign inspector. Certain drawings related to the Bank Independent billboard failed to contain the necessary information, so Askew did not apply for a permit to construct the Bank Independent billboard in May.

On June 19, 2001, the city council passed a resolution imposing a moratorium on the granting of permits for off-premise signs pending the amendment of the City’s zoning ordinance pertaining to off-premise signs. The moratorium reads as follows:

“WHEREAS, the City Council of the City of Florence, Alabama has determined that billboards located on premises to which they do not specifically relate (off-premise signs) result in harm to the welfare of the City by creating visible clutter and blight and by promoting a negative aesthetic impact in the City, and;
“WHEREAS, the City Council has further determined that it is in the best interests of the City, in the protection of the public health, safety and welfare, that the regulation and prohibition of off-premise signs should be analyzed by the staff, the regulated community and the citizens of the City for the purpose of determining the best possible approach for such regulation under the Constitution of the United States and the State of Alabama, and;
“WHEREAS, in order to preserve the status quo pending further investigation of the possible regulation of off-premise signs, the City Council has determined that a moratorium should be imposed upon the issuance of permits for the construction of new off-premise signs;
“NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OP THE CITY OF FLORENCE, ALABAMA AS FOLLOWS:
“A moratorium is hereby imposed upon the processing of any building permit applications intended to authorize the installation of off-premise signs or billboards. This moratorium will terminate on December 19, 2001, or upon the effective date of the adoption by the City Council of zoning ordinance amendments designed to regulate off-premise signs, whichever shall first occur; unless extended further by the action of the City Council.”

(Capitalization in original.)

Askew went to the City’s building department to inquire about the impact of the moratorium on the permit for the Bank Independent billboard. Austin informed Askew that the permit for the Bank Independent billboard would be issued as soon as Askew applied for the permit and provided the appropriate drawings. Askew apparently applied for the permit on June 25, 2001; at that time he still needed the appropriate drawings to comply with the ordinance. However, when Askew returned to the building department with the appropriate drawings on August 2, 2001, Williamson orally informed Askew that the permit would not be issued because of the moratorium. Williamson suggested that Askew write a letter outlining the time line of his permit request, which Askew did; in that letter, Askew stated that the Bank Independent billboard permit was denied on August 2, 2001.

The City, unlike most municipalities, exercises what is known as extraterritorial zoning; that is, it has the power to regulate by its zoning ordinances an area outside its corporate city limits. The City has this power by virtue of Act No. 2135, Ala. Acts 1971, which reads:

“Be It Enacted by the Legislature of Alabama:

“Section 1. The provisions of this Act shall apply to all cities having populations of not less than 33,500 nor more than 36,000 inhabitants according to the last or any subsequent federal decennial census; it shall be the public policy of any such city to extend, alter, and rearrange the boundaries of the zoning authority of such city to include the area described in Section 2 of this Act so that the Cox Creek Parkway shall hereby be protected and so than [sic] the orderly growth of the area will be insured and the safety of the traveling public will be enhanced.
“Section 2. Any city coming under the provisions of Section 1 of this Act shall hereinafter have such authority as provided by law to enact zoning regulations for an area which is defined as:
“All that land lying between the present Corporate Limits of the City of Florence, Lauderdale County, Alabama, and a line described as beginning at a point on the East line of Section 6, Township 3 South; Range 10 West, said Launderdale [sic] County, and at a point on the present Corporate Limits, and run northwardly along the Section line to the centerline of Florence Boulevard (U.S. Highway 43 & 72): run thence eastwardly along the centerline of said Florence Boulevard to the centerline of Middle Road; run thence northwardly along the centerline of Middle Road to a point 430 feet northwardly from the cen-terline of Hough Road; thence west-wardly 430 feet northwardly from and parallel to the centerline of Hough Road to a point which is 520 feet eastwardly from the Centerline of Cox Creek Parkway (Alabama Highway Department Project S-1120-A); thence westwardly 520 feet northwardly from and parallel to centerline of said Parkway to east line of Section 26; Township 2 South, Range 11 West; thence westwardly 520 feet north of and parallel to south line said Section 26 to the Old Chisholm Road and present Corporate Limits.
“ALSO, All the south one-half Section 27, Township 2 South, Range 11 West, between west line of said Section 27 and the present Corporate Limits;
“ALSO, All Section 34, Township 2 South, Range 11 West, between, the west line of said Section 34 and the present Corporate Limits;
“ALSO, All that land between the present Corporate Limits and a line described as beginning at a point of [sic] the west line of Section 34, Township 2 South, Range 11 West 520 feet north-wardly from the centerline of Cox Creek Parkway (Alabama State Highway Department Project S-1120-A), and run thence westwardly 520 feet northwardly from and parallel to the centerline of said Parkway and its extension as same is now staked or as it shall later be staked and laid out, to a point 430 feet westwardly from the centerline of Savannah Road (Alabama Highway 20); thence southeastwardly 430 feet west-wardly from a parallel to the centerline of said Savannah Road to the centerline of Cypress Creek and the present Corporate Limits.
“Section 3. This Act shall take effect immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.”

After the Bank Independent billboard permit was denied, Askew and another individual began developing plans to seek permits for more off-premise billboards. In December 2001, Bradley Outdoor applied for 54 permits from the City for the construction of off-premise billboards. On December 5, 2001, the City enacted an amendment to its off-premise sign ordinance; that amendment became effective on December 7, 2001, and the amended ordinance prohibits the off-premise billboards sought to be erected by Bradley Outdoor. Also on December 5, 2001, Bradley Outdoor filed a complaint seeking a judgment declaring that the moratorium was invalid and a petition for a writ of mandamus requesting that Williamson be compelled to issue permits for 46 proposed billboards; that case was assigned case no. CV-01-790 (“the deelaratory-judg-meni/mandamus action”). Bradley Outdoor later amended its complaint to seek a judgment declaring that Act No. 2135 was unconstitutional under §§ 104 and 105 of the Alabama Constitution of 1901. After being served, see AIa.Code 1975, § 6-6-227, the attorney general waived further participation in the action.

The City denied all of Bradley Outdoor’s permit applications. On February 14, 2002, Askew and Bradley Outdoor appealed the denial of 45 of the 54 permit applications filed in December 2001 and the denial of the Bank Independent billboard permit application to the City’s Board of Zoning Adjustment (“the Board”). The Board met on March 18, 2002, to consider the appeals. The minutes of the meeting reflect that the Board declined to consider the appeal of the denial of the Bank Independent billboard permit application because the appeal of the denial was untimely, coming more than 30 days after the denial of the permit application on August 2, 2001. Askew, on the advice of his attorney, made no statement to the Board regarding any of the permit applications under review because those permit applications were the subject of the declaratory-judgment/mandamus action. However, Askew had submitted a document outlining why the basis given by Williamson for the denial of each permit application was incorrect. After consideration of the issues, the Board unanimously denied the appeal of all of the permit applications under review. On April 2, 2002, Askew and Bradley Outdoor appealed the denial of the appeal to the circuit court; that case was assigned case no. CV-02-235 (“the zoning action”).

The declaratory-judgment/mandamus action and the zoning action were consolidated for the purposes of discovery and trial. The parties filed cross-motions for a summary judgment in both actions. The trial court, after considering the motions, granted a summary judgment in favor of the City and Williamson in the declaratory-judgment/mandamus action and in favor of the Board in the zoning action. Bradley Outdoor appealed the summary judgment in favor of the City and Williamson; that appeal was assigned case no. 2040915 (“the declaratory-judgment/mandamus appeal”). Bradley Outdoor and Askew appealed the summary judgment in favor of the Board; that appeal was assigned case no. 2040916 (“the zoning appeal”). The appeals were consolidated, and the parties filed briefs addressing both appeals.

We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[Sjubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d).

In regard to the declaratory-judgment/mandamus appeal, Bradley Outdoor argues that Act No. 2135, which grants to the City the power to zone in an area outside its corporate limits, is unconstitutional on two bases. It first argues that Act No. 2135 violates Art. IV, § 104(18) of the Alabama Constitution of 1901 by unlawfully extending the City’s charter. Bradley Outdoor further argues that Act No. 2135 violates Art. IV, § 105 of the Alabama Constitution of 1901 because Act No. 2135 conflicts with the general laws of the state regarding zoning by allowing the City to zone outside of its corporate limits. In conjunction with this argument, Bradley Outdoor argues that Act No. 2135 is no longer applicable to the City because the City has since outgrown the population class of Act No. 2135.

Bradley Outdoor first argues that Act No. 2135 is unconstitutional because it violates § 104 of the Alabama Constitution of 1901, which prohibits a local law from amending the charter of a municipality. Section 104(18) reads:

“The legislature shall not pass a special, private, or local law in any of the following cases:
“(18) Amending, confirming, or extending the charter of any private or municipal corporation, or remitting the forfeiture thereof; provided, this shall not prohibit the legislature from altering or rearranging the boundaries of the city, town, or village.”

Bradley Outdoor contends that the extension of the City’s zoning boundaries in Act No. 2135 runs afoul of the proscription stated in § 104(18). The City, however, contends that the act does not violate § 104(18) because the changes in the City’s zoning boundaries are territorial changes and do not restrict the exercise of the zoning powers to be exercised by the City.

In support of its argument that the extension of the City’s zoning boundaries does not run afoul of § 104(18), the City relies on Trailway Oil Co. v. City of Mobile, 271 Ala. 218, 122 So.2d 757 (1960). In Trailway Oil Co., our supreme court considered a challenge to a local act that restricted the exercise of the City of Mobile’s police powers within its police jurisdiction. Trailway Oil Co., 271 Ala. at 220, 122 So.2d at 758-59. The local act, Act No. 80, Ala. Acts 1956, read as follows:

“ ‘Section 1. That no municipality whose corporate limits do not lie within or extend into and embrace and include a portion of Baldwin County shall have or exercise police jurisdiction within Baldwin County; nor shall any such municipality exercise police jurisdiction, police powers or taxing powers within Baldwin County or over or on any person in Baldwin County or property or business or trade or profession in Baldwin County; nor shall any such municipality levy, fix or collect any license or fee of any kind on or for the exercise of any business, trade or profession done in Baldwin County; nor shall any ordinance of any such municipality enforcing police or sanitation regulations or prescribing fines or penalties for violation thereof have force or effect in Baldwin County.’ ”

Trailway Oil Co., 271 Ala. at 220, 122 So.2d at 759 (quoting Act No. 80, Ala. Acts 1956). The City of Mobile challenged Act No. 80 on the basis that it violated § 104(18) by amending its charter. Trailway Oil Co., 271 Ala. at 221, 122 So.2d at 760. The court determined that Act No. 80 was constitutional under § 104(18) because “the act in question [was] territorial only in effect, merely restricting the police jurisdiction of the City of Mobile in area, but not subjectively.” Trailway Oil Co., 271 Ala. at 221, 122 So.2d at 760. The court further explained that the language of § 104(18) itself revealed the legislature’s intent “ ‘to make the matter of extending the boundaries of cities and towns an exception to the prohibition against local legislation.’ ” Trailway Oil Co., 271 Ala. at 224, 122 So.2d at 762-63 (quoting In re Opinion of the Justices, No. 77, 249 Ala. 312, 313, 31 So.2d 309, 310 (1947)). Because Act No. 80 “aecomplishe[d] only a relocation of the territorial extent of the police jurisdiction and, within the remaining area of the police jurisdiction, d[id] not reduce, expand, or have any other effect on the incidents which by law are inherent in the police powers of cities and towns in this state,” the court concluded that the territorial limitation contained in Act No. 80 did not violate § 104(18). Trailway Oil Co., 271 Ala. at 225, 122 So.2d at 763-64.

The City contends that the expansion of the territorial boundaries of its zoning power is like the restriction of the territorial boundaries of the City of Mobile’s police power. Because the expansion does not affect the manner in which the zoning power is to be exercised, the City argues, the territorial expansion of the limits within which the City may exercise that power does not violate § 104(18). Based on our reading of Trailway Oil Co., we agree. Act No. 2135 simply expands the territory over which the City’s zoning power may extend. Nothing in Act No. 2135 purports to affect in any way the City’s actual power to zone. Thus, under the language of § 104(18), which permits local laws to change the territorial boundaries of municipalities, Act No. 2135 is constitutional.

Bradley Outdoor also argues that Act No. 2135 is unconstitutional because it conflicts with the general law of this state concerning zoning. Indeed, as Bradley Outdoor correctly points out, § 11-52-70, Ala.Code 1975, grants to each municipal corporation the power to zone “within its corporate limits.” However, our supreme court has implicitly recognized that extraterritorial zoning may be provided for by appropriate enabling legislation: “In the absence of any enabling legislation expressly providing otherwise, zoning enactments of a municipality are limited to its territorial boundaries and are invalid to the extent that they seek to impose zoning regulations and restrictions on land outside city limits.” Roberson v. City of Montgomery, 285 Ala. 421, 423, 233 So.2d 69, 70 (1970) (emphasis added). Roberson involved an attempt by the City of Montgomery to zone outside of its corporate limits. Roberson, 285 Ala. at 423, 233 So.2d at 69-70. Because no legislative act granted the city such power, the City of Montgomery was prohibited from zoning outside its corporate limits. Roberson, 285 Ala. at 423, 233 So.2d at 70.

Act No. 2135, however, is an enabling act expressly granting the City of Florence the ability to zone a described area lying outside of its corporate limits. Bradley Outdoor argues that Act No. 2135, because it expands the zoning power of the City outside its corporate limits, conflicts with the general zoning law, which provides a municipality the power to zone only within its corporate limits.

Article TV, § 105, provides:

“No special, private, or local law, except a law fixing the time of holding courts, shall be enacted in any case which is provided for by a general law, or when the relief sought can be given by any court of this state; and the courts, and not the legislature, shall judge as to whether the matter of said law is provided for by a general law, and as to whether the relief sought can be given by any court; nor shall the legislature indirectly enact any such special, private, or local law by the partial repeal of a general law.”

Our supreme court has explained that

“our Constitution authorizes local legislation, and sets out a procedure for its enactment. Under that authorization local legislation reflecting responses to local needs may be enacted. It is only when those local needs already have been responded to by general legislation that § 105 of our state Constitution prohibits special treatment by local law.”

Peddycoart v. City of Birmingham, 354 So.2d 808, 814-15 (Ala.1978). Our supreme court has further explained that we are to look at “ ‘whether the object of the local law is to accomplish an end not substantially provided for and effectuated by the general law,’ ” Miller v. Marshall County Bd. of Educ., 652 So.2d 759, 761 (Ala.1995) (quoting Drummond Co. v. Boswell, 346 So.2d 955, 958 (Ala.1977)), and has indicated that, when a local law is found to have responded to “ ‘demonstrated local needs’” not otherwise addressed by the general law, it is not unconstitutional under § 105. Miller, 652 So.2d at 761 (quoting State Bd. of Health v. Greater Birmingham Ass’n of Home Builders, 384 So.2d 1058, 1062 (Ala.1980)) (emphasis omitted).

Thus, in order to determine whether Act No. 2135 violates § 105, we must consider whether that act addressed an existing local need not addressed by the general zoning statutes. The act itself explains that its purpose is to protect the Cox Creek Parkway, to ensure the “orderly growth of the area,” and to enhance “the safety of the traveling public.” The general zoning laws do not address the City’s need to protect the safety of the traveling public and to ensure the orderly growth along a major public thoroughfare in an area lying outside its corporate limits. Thus, the need addressed by Act No. 2135 is not addressed by the general law and the act is not unconstitutional under § 105.

Bradley Outdoor also argues that the City is no longer entitled to zone extra-territorially under Act No. 2135 because the City has outgrown the population class set out in the act. In support of this argument, Bradley Outdoor cites Walker v. City of Montgomery, 833 So.2d 40, 46 (Ala.2002), in which our supreme court held that a law containing a “shifting” population class permits cities to which the law applied to both grow into and grow out of the population class. The law at issue in Walker, Act No. 457, Ala. Acts 1957, prohibited the imposition of a privilege license tax on the employees working within the corporate limits or police jurisdiction of cities with populations between 100,000 and 125,000. Walker, 833 So.2d at 41. The City of Montgomery had been within the specified population class when Act No. 457 was enacted in 1957; however, the city had outgrown the class as of the 1960 census. Walker, 833 So.2d at 44 n. 2. The city had passed a privilege license tax, and certain taxpayers filed suit to have the tax declared invalid under Act No. 457. Walker, 833 So.2d at 41. Thus, the question addressed by the Walker court was whether the city could outgrow the population class of Act No. 457 and therefore validly impose the tax. Walker, 833 So.2d at 43. The taxpayers argued that the use of the disjunctive “or” in the portion of Act No. 457 describing the means for determining the population of a city, i.e., “ ‘according to the last or any subsequent federal decennial census,’ ” indicated the legislative intent to allow cities to grow into the population class but not to allow any cities to outgrow the class. Walker, 833 So.2d at 43. Ultimately, the court concluded that a general law containing a population class must allow for the inclusion and exclusion of members of the class based on changes in population. 833 So.2d at 46. Thus, the court affirmed the trial court’s summary judgment in favor of the city on the ground that it had outgrown the class specified in Act No. 457. Id.

The City argues that Walker is inapplicable in the present case. The City distinguishes Walker because the language of Act No. 2135 differs from the language in Act No. 457 in one material respect. Although the description of the population class in Act No. 2135 is identical to that in Act No. 457 in that it, too, contains the language, “according to the last or any subsequent federal decennial census,” § 2 of Act No. 2135 states that “[a]ny city coming under the provisions of Section 1 of this Act shall hereinafter have such authority as provided by law to enact zoning regulations” for the area described in Act No. 2135. (Emphasis added.) Thus, according to the City, Act No. 2135 clearly indicates the legislature’s intent to permit those cities coming within its population class at the time it was enacted to forever have the power to zone in the described area.

The City also argues that Art. IV, § 106.01 of the Alabama Constitution of 1901 preserved Act No. 2135, as it did all general acts of local application that were not otherwise unconstitutional. See Freeman v. Purvis, 400 So.2d 389, 391 (Ala.1981). Section 106.01 reads:

“Any statute that was otherwise valid and constitutional that was enacted before January 13, 1978, by the legislature of this state and was a general act of local application on a population basis, that applied only to a certain county or counties or a municipality or municipalities of this state, shall not be declared invalid or unconstitutional by any court of this state because it was not properly advertised in compliance with section 106 of this Constitution.
“All such population based acts shall forever apply only to the county or counties or municipality or municipalities to which they applied on January 13, 1978, and no other, despite changes in population.
“The population based acts referred to above shall only be amended by acts which are properly advertised and passed by the legislature in accordance with the provisions of this Constitution.”

Thus, the City contends, Act No. 2135, which applied to the City in 1978, continues to apply to the City today, without regard to any population changes. Based on our previous discussions regarding the constitutionality of Act No. 2135, we agree that it continues to apply to the City by virtue of § 106.01.

Bradley Outdoor next argues that it was entitled to a judgment declaring that the moratorium was invalid because, in enacting the moratorium, the City failed to comply with the notice and hearing requirements of Ala.Code 1975, §§ 11-52-77 & -78. However, the moratorium, by its terms, expired on December 7, 2001, when the new off-premise sign ordinance became effective. Thus, Bradley Outdoor’s request that the trial court, and ultimately this court, declare the moratorium to be invalid was mooted by the expiration of the moratorium. See Case v. Alabama State Bar, 939 So.2d 881 (Ala.2006) (holding that the dissolution of an order suspending the plaintiff from practicing law mooted his appeal, which was based upon the dismissal of his petition for declaratory and injunctive relief from that order); and Siegelman v. Alabama Ass’n of School Bds., 819 So.2d 568 (Ala.2001) (holding that the entry of another injunction modifying the injunction forming the basis of the appeal mooted the appeal). An Alabama court “ ‘is not empowered “ ‘to decide moot questions Case, 939 So.2d at 885 (quoting Ex parte Connors, 855 So.2d 486, 488 (Ala.2003), quoting in turn other cases). Accordingly, we will not address the validity of the moratorium.

Based on its argument that the moratorium was invalid, Bradley Outdoor requested that the trial court issue a writ of mandamus compelling Williamson, on behalf of the City, to issue a permit for the Bank Independent billboard, a permit which Williamson had denied on the sole basis that the moratorium was in place. A petition for a writ of mandamus is the appropriate vehicle by which “to compel an official both to exercise his discretion and to exercise it under a proper interpretation of the applicable law.” Ex parte Chandler, 477 So.2d 360, 362 (Ala.1985). However, mandamus will only lie in those instances where no adequate remedy at law exists. Ex parte Dep’t of Human Res., 620 So.2d 619, 620 (Ala.1993). An appeal is an adequate remedy at law. In re N.D.M., 837 So.2d 316, 318 (Ala.Civ.App.2002). Because Bradley Outdoor could and did appeal the denial of the Bank Independent billboard permit application it sought from the City, and even though that appeal was, as noted earlier, untimely, mandamus will not lie to compel Williamson, on behalf of the City, to grant that permit. Accordingly, the trial court’s summary judgment in favor of Williamson and the City on Bradley Outdoor’s petition for a writ of mandamus is affirmed.

Bradley Outdoor and Askew appealed the trial court’s summary judgment in favor of the Board. However, their brief fails to make any argument in support of the appeal of the summary judgment related to the appeal of the Board’s affirmance of the denial of the various billboard permits. The only arguments raised by Bradley Outdoor and Askew in their brief are those addressed above in conjunction with the declaratory-judgment/mandamus appeal. Issues not argued in an appellant’s brief are waived. King v. Correctional Med. Servs., Inc., 919 So.2d 1186, 1190-91 (Ala.Civ.App.2005).

Therefore, we affirm the summary judgment in favor of the Board.

APPLICATION OVERRULED; OPINION OF JUNE 16, 2006, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

THOMPSON and PITTMAN, JJ., concur.

MURDOCK and BRYAN, JJ., dissent, without writing.

      . The Board did discuss in its brief to this court the propriety of the summary judgment in its favor in the zoning action. In their reply brief, Bradley Outdoor and Askew, without developing an argument or citing any authority, in contravention of Rule 28(a)(10), Ala. R.App. P., state their disagreement with the Board’s position and state that evidence in the record creates an issue of fact regarding the denial of the various permits requiring a trial on the merits. However, to the extent their statement may be taken as an argument on the issue, it comes too late because issues may not be raised on appeal for the first time in a reply brief. Lloyd Noland Hosp. v. Durham, 906 So.2d 157, 173 (Ala.2005).


author: BRYAN, Judge. MURDOCK, Judge,

text:
    A.B. v. E.S., Jr.
    2050323.
    Court of Civil Appeals of Alabama.
    Oct. 13, 2006.
    Rehearing Denied Jan. 12, 2007.
    Certiorari Denied March 9, 2007 Alabama Supreme Court 1060663.
    Jonathan W. Pippin of Abies, Baxter, Parker & Hall, P.C., Huntsville, for appellant.
    Vicki A. Bell, Huntsville, for appellee.
   BRYAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(A), Ala. R.App. P.; Rule 45, Ala. R.App. P.; Ex parte Fann, 810 So.2d 631 (Ala.2001); Lamb v. Lamb, 939 So.2d 918 (Ala.Civ.App.2006); L.L.M. v. S.F., 919 So.2d 307 (Ala.Civ.App.2005); Headrick v. Headrick, 916 So.2d 610 (Ala.Civ.App.2005); Mann v. Mann, 725 So.2d 989 (Ala.Civ.App.1998); I.M. v. J.P.F., 668 So.2d 843 (Ala.Civ.App.1995); and Clemons v. Clemons, 627 So.2d 431 (Ala.Civ.App.1993).

THOMPSON and PITTMAN, JJ, concur.

CRAWLEY, P.J., concurs in the result, without writing.

MURDOCK, J., dissents, with writing.

MURDOCK, Judge,

dissenting.

I conclude that the juvenile court lacked subject-matter jurisdiction over what appears to be a custody dispute between two parents. Consequently, in accordance with my special writing in J.W.J. v. P.K.R., 906 So.2d 182, 188-92 (Ala.Civ.App.2005) (Murdock, J., concurring in part and concurring in the result in part), and this court’s opinion in Ex parte K.L.P., 868 So.2d 454 (Ala.Civ.App.2003), I respectfully dissent.


author: CRAWLEY, Presiding Judge. MURDOCK, Judge, PITTMAN, Judge,

text:
    John S. CAPONE, Jr. v. Beverly A. CAPONE.
    2050212.
    Court of Civil Appeals of Alabama.
    Nov. 3, 2006.
    Rehearing Denied Jan. 5, 2007.
    Certiorari Denied March 9, 2007 Alabama Supreme Court 1060579.

      Sara C. Semmes of Legal Clinic of Sem-mes & Semmes, P.C., Anniston, for appellant.
    Sheila C. Field of Field & Field, L.L.C., Anniston, for appellee.
   CRAWLEY, Presiding Judge.

John S. Capone, Jr. (“the husband”), and Beverly A. Capone (“the wife”) were married in April 1984. In late December 2004, the parties separated and the husband sued the wife for a divorce; the wife counterclaimed for a divorce, alleging that the husband had committed adultery. After a trial, the trial court entered a judgment divorcing the parties on the grounds of adultery, incompatibility of temperament, and irretrievable breakdown of the marriage.

The divorce judgment awarded the husband his 2004 Ford F150 pickup truck, his 1969 Chevrolet Chevelle automobile, and a 2004 Harley Heritage motorcycle; the husband was also required to be responsible for any debt associated with the vehicles. The wife was awarded her 2004 Buick Ranier sport-utility vehicle; she, too, was required to be responsible for any debt associated with that vehicle. The trial court also awarded each party one-half of the certificates of deposit (“CDs”), savings accounts, or other accounts acquired during the marriage; one-half, or, specifically, 5.5 million, of the 11 million Iraqi dinars acquired by the husband during a military assignment in Iraq; and one-half, or, specifically, $8,500, of a $17,000 cashier’s check in the husband’s possession at the time of trial. The judgment further awarded the wife an approximately five-acre parcel of real property acquired by the parties during the marriage, subject to the indebtedness thereon. Each party was awarded one of the two burial plots purchased by the parties during the marriage.

The judgment also required the husband to pay the wife alimony in the amount of $2,500 per month and awarded the wife 25% of the husband’s military-retirement benefits upon his receipt of those benefits. The judgment states that the $2,500-per-month alimony payment will be reduced by the monthly retirement-benefit payment, once the wife begins receiving that payment. The judgment further required the husband to name the wife as the beneficiary of his retirement survivor benefit plan. Finally, the trial court required the husband to name the wife as the irrevocable beneficiary of his existing servicemember’s life-insurance policy until such time as she dies, remarries, or cohabits with another person; the judgment also prohibited the husband from borrowing against, pledging, or otherwise encumbering the value of that life-insurance policy.

The husband, who was 49 years old at the time of trial, is employed by the United States Army; his rank is sergeant major. His monthly income at the time of trial was $6,755. At the time of trial, the husband had 24 years of active service and 6 years of reserve service in the Army. He testified that he had no vested retirement benefits and that, if he died the following day, he would have no retirement survivor benefits. When cross-examined by the wife’s counsel, the husband testified that he was eligible to retire because of his length of service and that, if he were to retire at the time of trial, he would receive $3,924 per month in retirement benefits. In addition, the husband agreed that the table that the wife’s counsel showed him indicated that, if he were to retire in 20 years, he would receive $7,543 per month in retirement benefits. The husband, noted, however, that the Army was not likely to allow him to retire in the near future in light of the need for servicemembers to serve in Iraq.

The husband testified that he was given the 11 million Iraqi dinars as a gift from a Kuwaiti gentleman with whom he had worked while stationed in Iraq. He said that he was also given a Rolex brand watch as a gift from the company for which this Kuwaiti gentleman worked. The wife, however, testified that the husband had asked her if he could buy the dinars as an investment.

The wife, who was 48 years old at the time of trial, was unemployed. According to the husband, she had worked, at times during the marriage, as a bank teller and as a realtor. She suffers from chronic headaches, fatigue, and fibromyalgia. Although she applied for disability benefits in 1996, she was determined not to be disabled.

The wife testified that the husband had had an affair with J.T., a mutual friend of the couple’s and a coworker of the husband. According to the wife, J.T. and the husband would speak to each other regularly on the telephone and J.T. and the husband both lied to her about going on a temporary-duty assignment (“TDY”) to Texas in November 2004. The wife said that she drove the husband to the Atlanta airport on November 13, 2004, and that he told her that he would be going to a TDY in Texas for a week. She also said that he told her that J.T. would also be on a TDY in Texas that week, but that she was taking a different flight. The wife further reported that the husband called her when his flight arrived and each day that week, reporting how hot it was and what activities he was engaging in. In addition, the wife stated that J.T. also called her during that week, likewise describing the TDY activities and how hot it was. She said that she believed that the husband and J.T. concocted the Texas TDY story as an elaborate scheme to cover up the husband’s affair with J.T.

The wife also photographed the husband and his father’s truck, which the husband was using, outside J.T.’s apartment on January 1, 2005. According to the wife, she arrived around 8:00 in the morning, central time, and that she watched J.T.’s apartment for approximately five hours. She said that she saw the husband go in and out of the apartment and load and unload boxes from J.T.’s vehicle; she also said that the husband left once and returned approximately 15 minutes later. The wife said that she later telephoned the husband on his cellular telephone and asked him what he was doing that day; according to the wife, the husband lied to her and told her he was with his father looking at old cars.

The husband denied having an affair with J.T., stating that they were friends. He said that he and J.T. had both attended a TDY in Texas in August, not November. He denied telling the wife that he was going to Texas in November because, he said, he attended a school in Stockbridge, Georgia, that week in November and, he testified, he had told his wife this. He also admitted staying at J.T.’s apartment on certain nights after the parties’ separation; however, he stated that he had always stayed in J.T.’s guest room.

The husband appeals the trial court’s judgment, seeking reversal on several grounds. He first argues that the trial court’s finding that he committed adultery is not supported by the evidence. He further argues that the trial court’s award of alimony to the wife and the division of property were inequitable. Further, he complains that the trial court’s award to the wife of 25% of his military-retirement benefits and the requirement that he make the wife the beneficiary of his military survivor benefit plan violate Ala.Code 1975, § 30-2-51(b). Finally, he complains that the trial court improperly ordered that he make the wife the irrevocable beneficiary of his servicemember’s life-insurance policy.

The husband first argues that the wife failed to present sufficient evidence from which the trial court could have found that he had committed adultery with J.T.

“ ‘While it is difficult and somewhat rare to prove adultery by direct means, the charge of adultery in a divorce case may be proven by circumstantial evidence which creates more than a mere suspicion.’ Billington v. Billington, 531 So.2d 924, 924 (Ala.Civ.App.1988). Proof to support the charge of adultery ‘must be sufficiently strong to lead the guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference.’ Boldon v. Boldon, 354 So.2d 275, 276 (Ala.Civ.App.1978).”

Fowler v. Fowler, 636 So.2d 433, 435 (Ala.Civ.App.1994); see also Langley v. Langley, 617 So.2d 678, 679 (Ala.Civ.App.1992); and Hooker v. Hooker, 593 So.2d 1023, 1025 (Ala.Civ.App.1991). The husband complains that the only evidence of adultery that the wife presented was her suspicion of an affair and the fact that the husband had visited and stayed at J.T.’s apartment at times after the parties’ separation.

The evidence of adultery adduced in Fowler consisted of the fact of the numerous telephone calls between the husband and a female coworker, some at very late hours and from public telephones, the fact that the husband and the coworker associated outside the office, the fact that the parties’ marriage counselor considered the relationship between the husband and the coworker inappropriate, and the fact that the husband had rejected the wife during the period in which the telephone calls between the husband and the coworker had occurred. Fowler, 636 So.2d at 435. Those facts, while sufficient to create a suspicion of adultery, were not sufficient to “ ‘lead ... to the conclusion of adultery as a necessary inference.’ ” Id. at 436 (quoting Boldon, 354 So.2d at 276). Likewise, the evidence in Hooker, which consisted of late-night telephone calls and the alleged paramour’s taking a job in the area and renting a room in the same building as the husband, was insufficient to create more than a suspicion of adultery. Hooker, 593 So.2d at 1025-26.

Our supreme court has also had occasion to consider what degree of circumstantial evidence would “lead the guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference.” Maddox v. Maddox, 281 Ala. 209, 212, 201 So.2d 47, 49 (1967). In Maddox, the husband presented the testimony of Jack Barbee, a friend of the husband’s, who claimed to have seen the wife in a compromising situation. Maddox, 281 Ala. at 212, 201 So.2d at 49. According to Barbee, while he was driving one day, he saw the wife stop her automobile near another automobile that an unidentified man was driving. Id. Barbee said that the two automobiles then proceeded to drive to another location, at which time the wife and the man got into the same automobile. Id. Once they were in the same automobile, said Barbee, the wife and the man drove to a motel. Id. Barbee then explained that the wife and the man remained at the motel for at least an hour, based on the fact that Barbee, after concluding the business he had nearby in approximately one hour, drove through the motel parking lot and discovered the automobile still parked there. Id.

In reversing the trial court’s judgment insofar as it found that the wife had committed adultery, the court in Maddox stated:

“We are of the opinion that Barbee’s testimony is wholly insufficient under our authorities to prove adultery....
“We recognize the long-standing rule of presumption in favor of the correctness of the trial court’s findings in a case where the evidence is taken in the presence of the court. But in this case we are clear to the conclusion that the trial court’s finding that the evidence showed that [the wife] was guilty of the charge of adultery is plainly and palpably wrong.”

Id., 281 Ala. at 213, 201 So.2d at 50.

The evidence at trial in this case indicated that both the wife and the husband had been friends with J.T. for a significant period of time. The wife had herself spent time with J.T., and the couple had often eaten dinner with J.T. when the husband and J.T. were required to travel on TDYs. The wife testified that she had been uncomfortable about the frequency of telephone calls between the husband and J.T.; she also said that she told her husband that his and J.T.’s frequent calls to each other might look inappropriate. The husband admitted that he and J.T. were friends and that he had stayed at J.T.’s apartment after the parties’ separation; however, he denied having a romantic or sexual relationship with J.T.

The evidence concerning the husband’s telephone contact with J.T. and his decision to stay overnight at her apartment on occasion after the parties’ separation might lead one to suspect adultery. However, we agree with the husband that the evidence at trial was not “ ‘sufficiently strong to lead the guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference.’ ” Fowler, 636 So.2d at 435 (quoting Boldon, 354 So.2d at 276). Thus, we must reverse the trial court’s judgment insofar as it is based on a finding of adultery, and we instruct the court on remand to remove adultery as a ground for the divorce.

We next turn to the husband’s interrelated arguments concerning the trial court’s award of the husband’s military-retirement benefits and military-survivor benefits to the wife. The husband contends that the wife failed to establish the amount of retirement benefits subject to division under Ala.Code 1975, § 30-2-51(b). He also points out that the award of survivor benefits to the wife potentially runs afoul of the 50% rule of § 30-2-51(b)(3). We agree.

Section 30-2-51(b) states:

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

This court has explained the requirements of § 30-2-51(b). See Smith v. Smith, 836 So.2d 893 (Ala.Civ.App.2002).

“A reading of § 30-2-51(b) indicates that a trial judge has the discretion to divide a spouse’s retirement benefits if either of two conditions exists at the time the complaint for divorce is filed: a spouse must have a vested interest in or be receiving retirement benefits. Section 30-2-51 (b) then states that the trial judge’s discretion to divide retirement benefits is further limited by three additional conditions: the 10-year marriage rule of subsection (1); the post-nuptial acquisition-of-benefits rule of subsection (2); and the 50 percent division rule of subsection (3). The apparent meaning of these provisions, when read as a whole, is that the trial judge may divide the value of any retirement benefits in which one spouse has a vested interest or is receiving on the date the action for divorce is filed, provided that the parties have been married for 10 years as of that date, that the judge divides only those retirement benefits acquired during the marriage, and that the judge awards the noncovered spouse no more than 50 percent of the benefits that may be considered by the court.”

Smith, 836 So.2d at 899-900.

The testimony at trial clearly established that the husband had been employed by the Army for 10 years before his marriage to the wife. Although the wife attempted to establish the amount of benefits the husband would receive if he retired at the time of trial, she did not present evidence of what portion of the husband’s retirement benefits were accumulated during the parties’ marriage. Her failure to do so requires us to reverse the portion of the judgment awarding retirement benefits to the wife, because the failure to present the necessary evidence concerning the portion of benefits acquired during the marriage prevents a trial court from exercising its discretion to award one spouse any portion of the retirement benefits of the other spouse. Dunn v. Dunn, 891 So.2d 891, 895 (Ala.Civ.App.2004) (reversing a judgment awarding retirement benefits because there was no evidence of the amount of benefits accumulated during the parties’ marriage); see also Applegate v. Applegate, 863 So.2d 1123, 1124 (Ala.Civ.App.2003) (stating that a trial court has no discretion to award retirement benefits if there is no evidence of the present value of those benefits); and McAlpine v. McAlpine, 865 So.2d 438, 441 (Ala.Civ.App.2002) (same).

In addition, we have held that the award of survivor benefits potentially violates § 30-2-51 (b), partly because such an award could potentially award one spouse an amount in excess of 50% of the other spouse’s retirement benefits. Wheeler v. Wheeler, 831 So.2d 629, 635 (Ala.Civ.App.2002). Thus, we agree with the husband, and we reverse the judgment insofar as it requires the husband to name the wife as a beneficiary of his military survivor benefit plan.

Because we have reversed the trial court’s judgment insofar as it awards retirement benefits to the wife, we need not consider the husband’s arguments that the remainder of the property division, including the alimony award, is inequitable. This court must consider the issues of property division and alimony together when reviewing the decision of the trial court. Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1995). As we held in Dunn, when we reverse a judgment awarding retirement benefits, the trial court on remand may reconsider the entire property division in light of the removal of the retirement benefits from consideration. Dunn, 891 So.2d at 895.

The husband’s final argument is that the trial court erred by requiring him to name the wife as a beneficiary of his service-member’s life-insurance policy. Because the trial court is free to reconsider its judgment insofar as it requires the husband to name the wife as a beneficiary of this policy in light of our instructions to the court to reconsider the alimony and property-division aspects of the judgment, we need not address the husband’s argument concerning this issue at this time.

REVERSED AND REMANDED WITH INSTRUCTIONS.

MURDOCK, J., concurs in the result, with writing.

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

PITTMAN, J., concurs in part and dissents in part, with writing, which THOMPSON, J., joins.

MURDOCK, Judge,

concurring in the result.

I concur in the result.

The wife in this case was awarded 25% of the retirement benefits vested in the husband as of the date the complaint for a divorce was filed. Although I agree with the essential point made by Judge Pittman in his special writing as it relates to the issue of retirement benefits in this case, the award of such benefits appears to have been faulty in a respect not addressed by Judge Pittman’s writing. Although there was testimony indicating that the husband, if he retired immediately, would be entitled to begin drawing $3,924 per month in retirement benefits, there was no showing as to what portion of those benefits accrued during the parties’ 20-year marriage, as opposed to during the approximately 10-year period of military service by the husband prior to the marriage. This is an error of a nature which this court has held not to be remediable upon a remand. See Dunn v. Dunn, 891 So.2d 891 (Ala.Civ.App.2004).

PITTMAN, Judge,

concurring in part and dissenting in part.

In the past, I have not hesitated to dissent from opinions reversing a trial court’s determination of adultery when the pertinent record has contained substantive evidence of adultery. See, e.g., Webb v. Webb, 950 So.2d 322, 330-31 (Ala.Civ.App.2006), and Vinson v. Vinson, 880 So.2d 469, 476-77 (Ala.Civ.App.2003). In this case, however, the record reveals that the only evidence offered to support the wife’s suspicions that the husband had committed adultery concerned one incident occurring before the parties had separated along with evidence of the husband’s behavior following the separation. The wife offered no corroborating testimony or evidence of any kind, and the husband emphatically denied having engaged in an illicit relationship during the marriage. We have long held that a spouse’s uncorroborated suspicion of adultery is insufficient evidence upon which to base a finding of adultery. See Yates v. Yates, 676 So.2d 365, 366 (Ala.Civ.App.1996), and Fowler v. Fowler, 636 So.2d 433, 435 (Ala.Civ.App.1994). I therefore concur in the main opinion’s conclusion that the wife failed to prove adultery on the part of the husband.

On the other hand, the main opinion also reverses that portion of the judgment awarding the wife 25% of the husband’s monthly military-retirement benefits. The valuation of retirement benefits has become a contentious problem for both trial and appellate courts. See Carter v. Carter, 934 So.2d 406 (Ala.Civ.App.2005); Wilkinson v. Wilkinson, 905 So.2d 1 (Ala.Civ.App.2004); McAlpine v. McAlpine, 865 So.2d 438 (Ala.Civ.App.2003); and Wilkinson v. Wilkinson, 828 So.2d 924 (Ala.Civ.App.2001). In this case, the husband and the wife testified regarding a schedule of retirement benefits produced by the United States Department of Defense indicating that if the husband retired at the time of trial he would have received $3,924 in monthly retirement benefits. That retirement schedule also indicated that the longer the husband remained in military service, the larger his subsequent retirement-benefit payments would be. As to the wife’s eligibility to receive a portion of the present value of the husband’s retirement benefits, based upon the 20-year length of the parties’ marriage and the military-retirement schedule of benefits, I believe that the trial court had sufficient evidence from which it could award the wife 25% of the hypothetical $3,924 payments to which the husband was entitled at the time of trial. Therefore, because I would not reverse that award, I respectfully dissent as to that portion of the main opinion.

THOMPSON, J., concurs.


text:
    Mark SMYTH v. Wade BRATCHER.
    2050553.
    Court of Civil Appeals of Alabama.
    Nov. 17, 2006.
    Rehearing Denied Jan. 5, 2007.

      Albert H. Adams, Jr., Eufaula, for appellant.
    Robert L. Bowden, Clayton, for appel-lee.
   CRAWLEY, Presiding Judge.

Mark Smyth currently resides at 41 Lugo Road. Before moving to 41 Lugo Road in late 1999, Smyth lived at 115 Lugo Road; that house, which Smyth had lived in since 1985, burned down. Wade Bratcher now lives at that location, in a new house he constructed, having purchased the land from Smyth’s family members in 2005. Smyth had always used a dirt road named Lugo Road for ingress and egress to both properties. Lugo Road crosses Bratcher’s property.

In October 2005, Bratcher blocked access to Lugo Road. Smyth sued Bratcher, seeking a temporary restraining order preventing Bratcher from blocking Lugo Road pending a trial, a permanent injunction preventing the road from being blocked, and damages for trespass and nuisance. The trial court granted a temporary restraining order pending a hearing; after the hearing, Bratcher was permitted to gate Lugo Road provided that he provided a key to Smyth for his use. Smyth amended his complaint, adding Barbour County as a party and alleging that Lugo Road was a public road maintained by the county.

At trial, the county stipulated that it had no records indicating that it had ever maintained Lugo Road; the county was subsequently dismissed as a party to the action. After hearing the testimony and considering the evidence presented, the trial court entered a judgment finding that Lugo Road was not a public road because Smyth’s use and any use by the public had been permissive. The judgment further denied Smyth the damages he sought on his claims of trespass and nuisance. The trial court gave Smyth 60 days to establish an alternate route for ingress and egress to his property. Smyth appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

Smyth argued at trial and continues to argue on appeal that Lugo Road was a public road established by prescription. He made no argument below and makes no argument on appeal relating to an establishment of an easement by prescription or by necessity over Lugo Road. He further makes no argument on appeal relating to his claims of nuisance and trespass other than to state in the conclusion of his brief that the judgment against him on those claims should be reversed, he asserts, because the judgment finding Lugo Road not to be a public road should be reversed. Thus, we will not address Smyth’s trespass and nuisance claims. Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) (stating that issues not raised in an appellant’s initial brief are waived).

Although neither party directly discusses the fact that the burden of proof regarding the establishment of a public road differs based on whether the road travels over improved land or unimproved land, we will begin our analysis with an explanation of those differing burdens of proof.

“[0]ur supreme court [has] explained the different presumptions attendant to ‘improved’ or ‘reclaimed’ property and to ‘unimproved’ or ‘unreclaimed’ property and the different burdens of proof resulting from those presumptions. The court stated:
“ ‘A public road may be established by common law dedication, statutory proceeding, or by prescription. Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289 (1972). An open, defined roadway, through-reclaimed land, in continuous use by the public as a highway without let or hindrance for a period of twenty years becomes a public road by prescription. When such circumstances are shown, a presumption of dedication or other appropriation to a public use arises.’
“Ford v. Alabama By-Products Corp., 392 So.2d [217,] 218 [ (Ala.1980) ]. In an earlier case, the supreme court explained the presumption of dedication as follows:
“ ‘While it is recognized that, to constitute a dedication, the public user must be under a claim of right, the presumption referred to is held to relate to the burden of proof upon the issue of adverse user under such claim of right. So that there is a presumption that 20 years’ user is an adverse user and under claim of right, when “there is nothing in the evidence to contradict the presumption.” ’
“Newell v. Dempsey, 219 Ala. 634, 635, 122 So. 881, 882 (1929) (quoting Locklin v. Tucker, 208 Ala. 155, 156, 93 So. 896, 897 (1922)). The Ford court continued:
“ ‘The burden is then on the landowner to show the user was permissive only, in recognition of his title and right to reclaim the possession. Ayers v. Stidham, 260 Ala. 390, 71 So.2d 95 (1954).
“ ‘In Benson v. Pickens County, 260 Ala. 436, 70 So.2d 647 (1954), it was noted that the above principles were not applicable to wooded or unimproved lands or lands which, though once reclaimed, had been “turned out” or left open and unused. Instead, where the road runs over unimproved or “turned out” lands there is no presumption of dedication by mere use; rather there is a presumption of permissive use and the user must establish his use as adverse to that of the owner. This principle is grounded on sound policy. Otherwise, an owner with no present use for the land over which a road runs would be required to suffer the expense of taking affirmative action to prevent travel over his unused land to avoid having a public road established on that land.’
“Ford v. Alabama By-Products Corp., 392 So.2d at 218-19. See also Thompson v. Wasdin, 655 So.2d 1058 (Ala.Civ.App.1995). See generally Jesse P. Evans, Alabama Property Rights and Remedies § 10.4(b) at 202-03 (2d ed.1998).”

Baker v. Wilbourn, 895 So.2d 965, 968-69 (Ala.Civ.App.2003) (footnote omitted).

Apparently, neither party was aware of the need to establish the character of the land during the prescriptive period. Based on the evidence, Lugo Road runs across the land on which Bratcher’s home sits and on which Smyth’s former residence sat. Thus, we conclude that the land over which Lugo Road runs was, during the prescriptive period — at least during the 20 years preceding 2005 — improved land. Thus, Smyth had the burden of establishing use of Lugo Road by the public for a period of 20 years, and Bratcher would then have the burden to establish that the use was, in fact, permissive instead of adverse. Baker, 895 So.2d at 968.

Smyth testified that, to his knowledge, Louis Sellers, Smyth’s predecessor in title, and Sellers’s friends and family, had used Lugo Road without hindrance. He admitted, however, that he did not know if anyone had requested permission to use the road. Smyth specifically mentioned a church that was located “behind” his current residence and two other houses that were formerly located along the road in 1985, indicating that Lugo Road had been used by the tenants of those homes and presumably by the church members to reach those structures. He also noted that the mail carrier delivered mail along Lugo Road to several residents in 1985 and in the years after; he said that the mail carrier had stopped delivering his mail to his home in 2001 or 2002.

Smyth also presented evidence indicating that the Cowikee Water Authority had installed a water line under Lugo Road. The general manager of the Authority, Mike Wood, testified that he had found no record of any condemnation proceeding or grant of an easement for that purpose, indicating to him, he said, that the road was a public road, because the Authority would not have needed permission to install a water line under a public road. Smyth further presented the testimony of Wheeler Ludlam, who testified that in 1928 or 1929 he rode on a school bus from his home on Lugo Road to school.

Sellers testified that he lived at 41 Lugo Road between 1967 and 1999. He testified that “the general public” used Lugo Road. He said that his friends and family had regularly used the road while he was living there and that no one had asked permission to do so. Sellers also testified that his water meter had been on Lugo Road and that the mail carrier had always driven up Lugo Road to deliver his mail.

In order to establish Lugo Road as a public road, Smyth had the initial burden of proving that the public used Lugo Road for the prescriptive period. The testimony presented established that the residents along the road used the road to go about daily business like receiving mail, having visitors, and being transported to school. The water line runs under the road, and the water meters are located at the edge of Lugo Road in front of each residence. Until 2001 or 2002, the mail carrier used the road to deliver mail to the residences on the road. At one point, a church was located on the road; the testimony does not reveal at what time the church was relocated. However, during at least part of the prescriptive period and in prior years, the church members must have used the road to reach the church. Sellers, who lived on the road from 1967 to 1999, testified that members of the general public used the road regularly and without permission.

“[T]he law lays down no fixed rule as to the quantum of travel over the road essential to impress upon it a public use. Although the chief user be a few families having special need therefor, this does not of necessity stamp it as a private way. It is the character rather than the quantum of use that controls. It seems clear enough that the general public, including these with special interests, have continuously used the road without let or hindrance as they had occasion so to do, and such combined use has been so constant and continuous as to mark at all times a well-defined highway for ve-hieles and pedestrians. As to public user this is sufficient.”

Still v. Lovelady, 218 Ala. 19, 20, 117 So. 481, 482 (1928). In Smith v. Smith, 482 So.2d 1172 (Ala.1985), our supreme court affirmed a trial court’s determination that a particular road was a public road based on testimony from residents in the area and from the parties that the road had been in existence for many years and on the following evidence:

“The gist of the remaining evidence is that the road for many years connected the paved public road to two houses no longer in existence. However, the road has been used by many persons, including prior owners and residents of the dwellings, as well as their tenants, friends, families, and persons doing business with them. Various crops have been grown on the land, and the road has provided access to and from the areas where they were grown. Cattle buyers and timber crews utilized the road to transport timber and cattle raised on the land. Hunters and fishermen also used the road, as did utility company personnel. The parties, their family, friends, tenants, and business invitees also used the road. Additionally, Blount County employees and others worked and maintained the road periodically.”

Smith, 482 So.2d at 1174.

The evidence that supported the conclusion that the road in Smith was a public road is quite similar to the evidence Smyth presented at trial in the present case. Thus, we conclude that Smyth presented sufficient evidence to establish that Lugo Road was used adversely by the public for at least 20 years before 2005. Once Smyth met this burden, Bratcher was required to present evidence indicating that the use by the public was, in fact, permissive. Baker, 895 So.2d at 969.

At trial, Bratcher focused on establishing that Smyth had an alternate route by which to access his property. Evidence of an available alternate route to Smyth’s property would have been relevant if Smyth had been attempting to establish an easement by necessity over Lugo Road. See Kelly v. Panther Creek Plantation, LLC, 934 So.2d 1049, 1053-54 (Ala.2006) (“ ‘ “[I]f one has an outlet over his own land, although less convenient he cannot claim a right of way over the premises of another.” ’ ” (quoting Roberts v. Monroe, 261 Ala. 569, 575, 75 So.2d 492, 497 (1954))). However, such evidence was irrelevant to the question whether Lugo Road is a public road. Bratcher presented no evidence indicating that the use of Lugo Road by the public was permissive during the prescriptive period.

Although the trial court based its judgment determining that Lugo Road was not a public road on ore tenus evidence, and although we will disturb such a judgment on appeal only when it is demonstrated to be unsupported by the evidence, plainly erroneous, or manifestly unjust, see Auerbach v. Parker, 544 So.2d 943 (Ala.1989), we cannot affirm the trial court’s judgment in the present case. Because Smyth met his burden, establishing that Lugo Road had been regularly used by the public for at least 20 years, a presumption of dedication to public use arose. Baker, 895 So.2d at 968 (quoting Ford v. Alabama By-Products Corp., 392 So.2d 217, 218 (Ala.1980)). The burden then shifted to Bratcher, requiring that he present opposing evidence to establish that the use by the public during the prescriptive period was, in fact, permissive. Baker, 895 So.2d at 969 (quoting Ford, 392 So.2d at 218). Bratcher failed to meet that burden. Accordingly, we reverse the judgment of the trial court insofar as it determined that Lugo Road was not a public road by prescription and remand this cause for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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