source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    Ex parte Lee GEORGE. (In re Lee George v. Alabama Power Company).
    1051568.
    Supreme Court of Alabama.
    Dec. 15, 2006.
    Rehearing Denied Feb. 16, 2007.

      Ted 0. Taylor, Leah 0. Taylor, and Rhonda Pitts Chambers of Taylor & Taylor, Birmingham, for petitioner.
    S. Allen Baker, Jr., Teresa G. Minor, Ed R. Haden, and Sean W. Shirley of Balch & Bingham LLP, Birmingham, for respondent.
    John L. Carroll, Cumberland School of Law, Birmingham, for amicus curiae Cumberland School of Law, in support of the respondent.
   WOODALL, Justice.

Lee George petitions this Court for a writ of mandamus directing Judge Caryl Privett to recuse herself and take no further action in George’s personal-injury action against Alabama Power Company. We deny the petition.

On May 3, 2004, George sued Alabama Power, seeking compensation for injuries he received when he came into contact with an energized power line owned and maintained by Alabama Power. The case was assigned to Judge Privett; Alabama Power has been represented by the law firm of Balch & Bingham LLP (“Balch”) since George filed his complaint. In January 2006, while George’s action was pending, Susan Nettles, a third-year student at Cumberland School of Law (“Cumberland”), enrolled in a “clinical education” program, otherwise referred to as a “judicial externship,” offered by Cumberland. According to the course description, “[s]tu-dents sign up to work within the office of a state court judge.” They are “required to work a minimum of 56 hours and submit ... written work,” for which they receive school credit but no remuneration. Assignment of a student to a particular judge is made by the Cumberland administration with the approval of the judge.

Nettles was assigned to Judge Privett, who subsequently learned that Nettles had entered into an employment agreement with Baleh and that she was scheduled to begin employment in September 2006 as an associate at Balch. Nettles spent approximately one day per week throughout the 2006 spring semester in Judge Pri-vett’s court doing research and observing matters handled by the court. In that connection, she attended various motion hearings in this case.

Trial began in April 2006. Nettles attended some sessions of the trial, which lasted nearly three weeks. The jury failed to reach a verdict, however, and a mistrial was declared in May 2006. The court promptly scheduled a new trial to begin on October 16, 2006. After the mistrial, George’s counsel learned of Nettles’s employment agreement with Balch.

On June 16, 2006, George filed a motion to recuse, requesting, among other things, that Judge Privett “disqualify herself from all further proceedings in this case.” The motion was based on Canon 3.C.(1), Alabama Canons of Judicial Ethics, which provides, in pertinent part: “A judge should disqualify [herself] in a proceeding in which [her] disqualification is required by law or [her] impartiality might reasonably be questioned .... ” (Emphasis added.) Judge Privett conducted a hearing on the motion to recuse on June 19, 2006, and subsequently denied the motion. In her order denying the motion to recuse, Judge Privett stated, in pertinent part:

“Frequently, this court has ... had ex-terns from Cumberland School of Law, either during the summer for a month at a time, serving as volunteer law clerks, or as participants in the school’s ‘Judicial Observation’ class....
“The law student in question ... did advise the court that she was going to work for the law firm of Balch & Bing-ham beginning in September 2006. She did no work on this case, ... and she participated in no confidential discussions ivith the court concerning this case. She did observe several proceedings in this case, including parts of the trial.”

(Emphasis added; footnotes omitted.)

George then filed this petition, seeking “a writ of mandamus directing that the trial court recuse herself from this case.” Petition, at 15. Cumberland filed a brief as amicus curiae.

A mandamus petition is a proper method by which to seek review of a trial court’s denial of a motion to recuse. Ex parte City of Dothan Pers. Bd., 831 So.2d 1, 5 (Ala.2002); Ex parte Cotton, 638 So.2d 870, 872 (Ala.1994), abrogated on other grounds, Ex parte Crawford, 686 So.2d 196 (Ala.1996). A trial judge’s ruling on a motion to recuse is reviewed to determine whether the judge exceeded his or her discretion. See Borders v. City of Huntsville, 875 So.2d 1168, 1176 (Ala.2003). The necessity for recusal is evaluated by the “totality of the facts” and circumstances in each case. Dothan Pers. Bd., 831 So.2d at 2. The test is whether “ ‘facts are shown which make it reasonable for members of the public or a party, or counsel opposed to question the impartiality of the judge.’ ” In re Sheffield, 465 So.2d 350, 355-56 (Ala.1984) (quoting Acromag-Viking v. Blalock, 420 So.2d 60, 61 (Ala.1982)).

George does not allege that Judge Privett possesses “personal bias or prejudice ... or personal knowledge of disputed evidentiary facts concerning the proceeding.” See Canon 3.C.(l)(a), Alabama Canons of Judicial Ethics (emphasis added). Instead, George contends that Judge Pri-vett exceeded her discretion in denying his motion to recuse, because, he insists, “[a] reasonable person knowing all of the facts concerning the judicial extern’s employ-merit relationship with the law firm representing Alabama Power would question the trial judge’s impartiality.” Petition, at 6. According to George, “it was never disclosed, either by the trial judge or by ... Alabama Power, that the ... extern had ... interviewed with and accepted full-time employment with the law firm representing Alabama Power.” Id. He says that, despite Judge Privett’s assurances that “the extern avoid[ed] all ‘participation’ in the case,” her “extern was present at various times during [motion hearings] and the trial.” Id. Thus, he argues, a “reasonable person, knowing all of the relevant circumstances, would conclude that the trial judge’s impartiality might reasonably be questioned.” Id. (Emphasis added.) In support of that proposition, he cites Hall v. Small Business Administration, 695 F.2d 175, 180 (5th Cir.1983) (where the magistrate’s law clerk “worked on” the opinion of the court after accepting employment with counsel for one of the parties, the magistrate erred “in failing voluntarily to disqualify himself or to insulate himself from his clerk on the facts known to him before he rendered judgment”); and Miller Industries, Inc. v. Caterpillar Tractor Co., 516 F.Supp. 84 (S.D.Ala.1980) (participation by a law clerk in the preparation and bench trial of an action after accepting an offer of employment with counsel for one the parties mandated recusal by the trial judge and vacatur of the judgment). See also Hunt v. American Bank & Trust Co. of Baton Rouge, 783 F.2d 1011, 1015 (11th Cir.1986) (“Clerks should not work on such cases, just as a judge should not hear cases in which his business associates are involved.”).

However, Alabama Power states that Nettles “has completed her class, started full-time employment with [Balch], is not working on this case, and will not be in court for the second trial of this case.” Alabama Power’s brief, at 27 (emphasis added). In essence, it insists that, even if an appearance of impropriety might have existed during Nettles’s affiliation with Judge Privett, any such appearance has been cured by the termination of the ex-ternship and the fact that the case will necessarily be retried without Nettles’s involvement. We agree.

It is widely recognized that “absent a statutory provision to the contrary, a determination of disqualification will not prevent a judge from reassuming full jurisdiction if the disqualification has been removed.” Matthews v. State, 313 Ark. 327, 331, 854 S.W.2d 339, 341 (1993). See also Flannery v. Flannery, 203 Kan. 239, 240, 452 P.2d 846, 848 (1969) (trial judge could resume jurisdiction of the case after “the matter which had required his disqualification appeared to have been finally adjudicated”); In re Estate of Odineal, 220 Neb. 168, 174, 368 N.W.2d 800, 804 (1985) (judge who had recused himself at a conservator-ship hearing “because he was personally acquainted with both the conservator and the decedent during her lifetime” was not disqualified to decide whether the personal representative was entitled to “compensation, fees, and expenses” after “the will contest had been settled [and] there no longer existed any reason for [the judge’s] disqualification on any grounds”); Miller-Vidor Lumber Co. v. Schreiber, 298 S.W. 154, 162 (Tex.Civ.App.1927) (judge, who initially recused himself because his brother was a defendant, could resume jurisdiction after his brother was dismissed, “the case [standing] for trial as though he had never been a party”).

Alabama’s Judicial Inquiry Commission (“JIC”) “has held on a number of occasions that, unless there are extraordinary factors that would require continued disqualification, a judge is not disqualified to hear an action after a circumstance causing disqualification has ceased to exist.” Ala. Jud. Inquiry Comm’n Adv. Op. No. 05-852 (June 10, 2005) (emphasis added) (“the judge’s impartiality is not reasonably questionable where the judge’s spouse is no longer employed as a legal secretary for a firm representing a party”) (citing Advisory Opinions 92-454, 94-516, and 96-605).

Indeed, in Dothan Personnel Board, cited by Alabama Power, this Court held that “the preexisting disqualification” occasioned by the dual representation of a party — and of the trial judge himself in an unrelated proceeding — was cured by the withdrawal of the concurrent counsel from the case before the judge, thus “obviat[ing] the necessity for” the trial judge’s recusal. 881 So.2d at 13. The Court stated:

“As earlier discussed, we conclude that the trial judge in this case was disqualified under Canon 3.C.(1) no later than July 12, 2001, and was therefore under a duty at that point to recuse himself. We further hold, however, consistent with the views expressed by the JIC in its various advisory opinions, that such a disqualification can be removed where the judge’s attorney withdraws from the case pending before the judge and another member of the same firm, who has had no involvement in the judge’s case, takes over the handling of the case, or when the litigation involving the judge concludes or the representation of the judge in that litigation by the lawyer in question otherwise ceases.”

831 So.2d at 11 (emphasis added). Accord Ex parte Cotton, supra, abrogated on other grounds, Ex parte Crawford, 686 So.2d 196 (Ala.1996).

In this case, by the time the recusal motion was filed and argued before Judge Privett, Cumberland’s 2006 spring semester had ended and the allegedly conflicted extern loas no longer affiliated with the court or with this case. Moreover, a mistrial had been declared, and a new trial scheduled. Assuming, arguendo, that Judge Privett was initially disqualified by Nettles’s involvement with this case, her disqualification was cured when the extern ceased her affiliation with the court and with this case and a new trial was ordered. A reasonable observer could not conclude that these circumstances prevent Judge Privett from proceeding with this action impartially. Consequently, she did not exceed her discretion in refusing to recuse herself, and the mandamus petition is denied.

PETITION DENIED.

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

      . Alabama Power also attempts to distinguish between the role assumed by Nettles as an extern and that assumed by the traditional, remunerated law clerk. Because we resolve this dispute on another ground, we do not address that alleged distinction.

      . George's mandamus petition does not request an order directing a vacatur of orders entered during the extern's affiliation with the court.


author: NAJBERS, Chief Justice.

text:
    Ex parte SMOKERISE HOMEOWNERS ASSOCIATION et al. (In re Smokerise Homeowners Association et al. v. Melvin Wayne Abernathy et al.)
    1050168.
    Supreme Court of Alabama.
    Jan. 12, 2007.

      Charles E. Vercelli, Jr., of Vercelli & Associates, P.C., Montgomery, for petitioners.
    Stephen M. NeSmith of Riggs & NeS-mith, P.A., Montgomery, for respondents Melvin Wayne Abernathy and Neda Joy Abernathy.
    James H. McLemore of Capell & Howard, P.C., Montgomery, for respondents Smokerise, LLC, and James M. Scott.
   NAJBERS, Chief Justice.

This petition for a writ of certiorari challenges the judgment entered by the El-more Circuit Court in favor of Melvin Wayne Abernathy, Neda J. Abernathy, Smokerise, LLC, and James M. Scott, individually and as a general partner of Smokerise, LLC, the defendants in the proceeding below (hereinafter referred to collectively as “the respondents”). The Smokerise Homeowners Association, Anthony and Linda McLeod, Cecil and Adrienne Brendle, and Brenda and Frederick Sides (hereinafter referred to collectively to as “the petitioners”) filed an action involving certain restrictive covenants applicable to Smokerise, a residential subdivision in Elmore County. After the trial court entered a summary judgment for the respondents, the petitioners appealed the judgment to the Court of Civil Appeals. That Court affirmed the judgment without an opinion, Smokerise Homeowners Ass’n v. Abernathy (No. 2021002, May 6, 2005), 945 So.2d 494 (Ala. CivApp 2005) (table); the petitioners subsequently petitioned this Court for a writ of certiorari to review that decision. We granted the petition, issued the writ, and directed the parties to submit briefs. After reviewing those briefs and the record, we now quash that writ.

I. Facts and Procedural History

The events underlying this proceeding span 15 years. The Smokerise subdivision was developed in the early 1990s by Smok-erise, LLC, and James M. Scott (hereinafter referred to collectively as “the developer”). Before the subdivision development began, the developer in 1987 conveyed to the Abernathys approximately 75 acres that are contiguous to, and lie generally east of, the Smokerise subdivision (“the Abernathy tract”).

By 1991 the developer had begun marketing the residential lots in the Smokerise subdivision. According to the subdivision plat, many of the lots were configured along streets terminating in cul-de-sacs, over which through traffic could not travel. In March 1991 the Sideses contracted with the developer to purchase lot 13 in the Smokerise subdivision. The developer executed a similar contract with the McLeods in April 1991 to buy lot 12. Both lots' 12 and 13 are on a cul-de-sac.

Three filings relating to the Smokerise subdivision were made in the Elmore County Probate Court and are pertinent here. The first was the developer’s filing in August 1991; in that filing, it recorded plat 4 and the restrictive covenants for the subdivision (“the August 1991 filing”). That plat reflected a 15-foot-wide access road (“the 15-foot road”) between lots 12 and 13 of the subdivision. The 15-foot road, which was outside the subdivision boundary, provided access between the Abernathy tract and the cul-de-sac serving lots 12 and 13. The pertinent restrictive covenants in the August 1991 filing stated:

“2.(B). Dwelling Site: ... Parcels may be subdivided into smaller lots or parcels if said parcel contains at least 2-1/2 acres with suitable road frontage.
“9. Nuisances: ... All parcels covered by these restrictions shall be limited to residential use only and no noxious or offensive trade or activity shall be conducted upon this parcel nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.
“12. Driveways and Road: ... There shall be no easements or rights of access granted across any platted lot to any contiguous lands except as shown on the plat, and, except as may, in the future, be granted across lot 6 and lot 12.”

(Emphasis supplied.)

By September 1991, the developer and the Abernathys were in disagreement concerning access to the Abernathy tract. In anticipation of defending against a claim by the Abernathys, the developer negotiated with the Sideses and the McLeods to acquire additional access across their lots to the Abernathy tract. In connection with those negotiations, on September 10, 1991, the developer filed the second of the three pertinent probate records, a modification to the August 1991 filing entitled “Correction to Restrictive and Protective Covenants for Smokerise Subdivision, Plat 4” (“the covenant modification”). The developer did not refile a subdivision plat in September 1991. The covenant modification stated:

“There shall be no easements or rights of access granted across any platted lot, to any contiguous lands except as shown on the plat, and, except as may, in the future, be granted across lot 6 and across a 4.5-foot wide parcel of land on the southern end of lot IS, the same being parallel to the 15-foot strip between lots 12 and IS.”

(Emphasis supplied.) This modification thus replaced the original language in covenant 12, which contemplated access “across lot 6 and lot 12,” with language allowing access “across lot 6 and across a 45-foot wide parcel of land on the southern end of lot 13.... ” The modification also stated that the developer was “the current owner of all the lots comprising [the] plat [filed in August 1991].”

The developer drafted, but did not sign, the following letter to the McLeods dated September 19,1991, concerning the negotiations for additional access:

“[We] have amended the plat on Smok-erise to eliminate any possibility of easements or roads being granted through Lot 12 to the [Abernathy tract] behind you. This means we will be conveying you the entire interest in [lot 12] and will not be asking you to take the 45' strip we earlier talked about.
“I worked out with Captain Sides that any road which could possibly go to the [Abernathy tract] behind you would come through his Lot 13 instead.”

(Emphasis supplied.) The McLeods attested that they never received this letter.

The McLeods closed on their purchase of lot 12 on October 2, 1991. The Sideses purchased lot 13 the following day. When the developer conveyed lot 13 to the Sides-es, it excepted and retained title to the 45-foot-wide strip of land on the southern end of lot 13 that was parallel to the 15-foot road between lots 12 and 13 — the same parcel referenced in the covenant modification (“the 45-foot parcel”). Mr. Sides attested that, when he agreed that the developer could retain title to the 45-foot parcel, he understood that the Aber-nathys owned the land behind his lot, that the Abernathys planned to build a home there in which to retire, that three or four homes would be built on the Abernathy tract for members of their family, and that the 45-foot parcel would be used as a private drive for that family.

During 1992 the Sideses embarked on their plans to build a house on lot 13. To assist the Sideses in positioning the house on lot 13, in August 1992 the developer sold them an additional 20 feet of property that was north of and contiguous to lot 13. Because that 20-foot parcel was not in lot 13 of the plat filed in August 1991, yet another recording in the probate court— the third of those pertinent here — was made in probate court in August 1992 to reflect that boundary change to lot 13 (“the second amendment”).

The materials filed with the second amendment included a modified version of the plat (“plat 4A”) that was signed by the developer, the Sideses (then the owners of lot 13), and the necessary county officials. The McLeods owned lot 12 when the second amendment was filed, but they did not sign plat 4A or any of the other instruments that were recorded with the second amendment. Another set of restrictive covenants for the subdivision also was recorded with the second amendment. That set restated the restrictive covenants exactly as they were stated in the August 1991 filing. Specifically, covenant 12 filed with the second amendment read exactly as it had in August 1991; it prohibited access through the subdivision to contiguous land “except as may, in the future, be granted across lot 6 and lot 12.” Covenant 12 as rendered in August 1992 did not use the language in the covenant modification to the covenants that had been filed in September 1991 and that specifically contemplated access between the Smokerise subdivision and the Abernathy tract by way of the 45-foot parcel.

The Abernathys’ dispute with the developer concerning access to their 75-acre tract intensified in 1992. Early in 1992 the Abernathys filed a private condemnation action against the developer in the probate court, seeking to acquire access to the Abernathy tract across lot 12 of the Smok-erise subdivision. In that action, the Abernathys alleged that improvements in the subdivision and the public dedication of the street serving lots 12 and 13 denied them access to a public road that had previously provided ingress to and egress from the Abernathy tract. The Aberna-thys prevailed on their condemnation claim in the probate court, but the developer appealed that decision to the circuit court.

In an effort to settle that condemnation litigation, in May 1993 the developer conveyed to the Abernathys fee simple interest in the 60-foot>-wide parcel of property between lots 12 and 13 (“the 60-foot parcel”) that it then owned (“the 1993 conveyance”). That 60-foot parcel comprised two segments: the 15-foot road and the 45-foot parcel, which the developer had retained in October 1991 when it sold that lot to the Sideses. The settlement agreement in the condemnation litigation contemplated that the 60-foot parcel would be the access point between a public road in the subdivision and the Abernathy tract, that the Abernathys would develop and sell residential lots on their 75-acre tract to the general public, and that, with respect to their own development, the Abernathys would abide by the restrictive covenants applicable to the Smokerise subdivision. Except for the developer, none of the McLeods, the Sideses, or any other landowner in the Smokerise subdivision was a party to the condemnation action.

During the same period in which the developer settled the condemnation action, the Brendles negotiated and committed to purchase lot 14-A in the Smokerise subdivision. That lot is across the street from the 15-foot road between lots 12 and 13 shown on the subdivision plat. Before that purchase, the Brendles asked the real-estate agent marketing the subdivision for the developer about the purpose of the 15-foot road. The Brendles attested that the agent advised them that it was a private road used to access the Abernathy tract for hunting. The Brendles purchased lot 14-A in October 1993. Before they purchased the lot, they were furnished a copy of the materials filed with the second amendment. Even though the covenant modification was recorded approximately two years before the Brendles purchased lot 14-A, there is no evidence indicating that the Brendles reviewed that modification, which contemplated access to the Abernathy tract over the 45-foot parcel. Further, there is no evidence indicating that the Brendles actually knew in October 1993 about the condemnation litigation that had been settled several months before their purchase or knew that the developer had retained title to the 45-foot parcel when it conveyed lot 13 in 1991 and subsequently conveyed the 60-foot parcel, which included the 45-foot parcel, to the Abernathys.

Early in 2002 the Abernathys began clearing trees and constructing a road on the 60-foot parcel. Before that, the 15-foot road had been cleared, but the 45-foot parcel remained wooded. The petitioners learned that the Abernathys had filed a plat with county authorities in the spring of 2002 seeking approval to subdivide the Abernathy tract into 29 homesites. Concerned that the Abernathys’ construction and use of the 45-foot parcel as a road tract would alter the secluded nature of the Smokerise subdivision, the petitioners sued in June 2002 to prevent the use of the 45-foot parcel by the Abernathys as a road, and to declare the Sideses as the “rightful owners” of the 45-foot parcel.

Specifically, the petitioners asked the circuit court to reform (a) the October 1991 deed in which the developer conveyed lot 13 to the Sideses and retained title to the 45-foot parcel and (b) the May 1993 deed in which the developer conveyed the 45-foot parcel to the Abernathys as one of the two segments constituting the 60-foot parcel. The gist of the petitioners’ complaint is that those conveyances were invalid because, they argued, each violated restrictive covenant 12 as it read in the August 1991 filing and the second amendment (granting access to contiguous land through the subdivision only over lots 6 and 12) and covenant 2(B) (prohibiting the subdivision of parcels of less than 2.5 acres). The petitioners’ complaint also asserted a nuisance claim against the Aber-nathys, alleging that the construction of a road on the 45-foot parcel had already caused, and the projected volume of traffic over that road would cause, “hurt, inconvenience and damage.” Finally, under a trespass theory, the petitioners claimed damages from the Abernathys related to their removal of trees from the 45-foot parcel.

The parties filed cross-motions for a summary judgment in the trial court. On June 12, 2003, that court entered a summary judgment for the respondents on all of the petitioners’ claims. The petitioners appealed, and this Court transferred that appeal to the Court of Civil Appeals pursuant to § 12-2-7(6), Ala.Code 1975. That court affirmed the summary judgment, without an opinion, and the petitioners then sought review in this Court.

II. Issue Presented and Standard of Review '

The petitioners appeal the trial court’s adverse disposition of their deed-reformation, nuisance, and trespass claims. Because the trial court entered a summary judgment on those claims, the following standard applies:

“ ‘This Court’s review of a summary judgment is de novo. We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P. In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce “substantial evidence” as to the existence of a genuine issue of material fact. Ala.Code 1975, § 12-21-12. “[Substantial 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.” ’ ”

Prince v. Poole, 935 So.2d 431, 442 (Ala.2006) (quoting Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004)) (citations omitted). Further, when reviewing a summary judgment, we consider the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant, Prowell v. Children’s Hosp. of Alabama, 949 So.2d 117, 126 (Ala.2006), and we consider questions of law de novo. Alabama Elec. Coop., Inc. v. Bailey’s Constr. Co., 950 So.2d 280 (Ala.2006).

III. Analysis

A. Deedr-Reformation Claim

The Abernathys’ title to and right to use the 15-foot road to access the Abernathy tract are not in dispute. The plats included with the August 1991 filing and the second amendment depicted that road, which was situated between lots 12 and 13, as being outside the boundary of the Smokerise subdivision. The petitioners knew of the existence of the 15-foot road and the intended use of it as the means of access to the Abernathy tract before they purchased their lots. Accordingly, they do not contest the Abernathys’ interests in the 15-foot road.

The petitioners’ claims address exclusively the 45-foot parcel the developer retained when it conveyed lot 13 to the Sideses in October 1991 and then subsequently conveyed to the Abernathys (along with title to the 15-foot road) in May 1993. The petitioners contend that the trial court should have reformed the deeds for those two transactions and transferred title to the 45-foot parcel to the Sideses, because those conveyances violated restrictive covenants 12 and 2(B). The petitioners argue that they have standing to seek that relief because when a developer adopts a general scheme for development and restricts the use of lots in the development, “such restrictions create equitable easements in favor of the owners of the several lots which may be enforced in equity by any one of such owners.” Allen v. Axford, 285 Ala. 251, 259, 231 So.2d 122, 129 (1969).

Chronologically, the pivotal transactions concerning the 45-foot parcel were the covenant modification in September 1991, the retention by the developer of the 45-foot parcel when it conveyed lot 13 in October 1991, and the May 1993 conveyance (hereinafter referred to collectively as “the key transactions”). In denying the deed-reformation claim, the trial court concluded that, during the early 1990s, the petitioners had actual notice of the key transactions and the intended use of the 45-foot parcel as access to the Abernathy tract. The trial court attributed significant weight to evidence indicating that in September 1991 the developer had negotiated with the McLeods and the Sideses— then under contract to buy lots 12 and 13' — for the purpose of the developer’s acquiring additional property to access contiguous lands. It concluded that the Sideses and the McLeods had received consideration from the developer in connection with its retention of title to the 45-foot parcel. That court also found that certain petitioners had knowledge of, and were bound by actions taken in, the condemnation litigation between the Aberna-thys and the developer. Based on its findings of actual knowledge, the trial court ruled that the deed-reformation claim was barred by the equitable defenses of laches and estoppel.

The petitioners effectively argue that they presented evidence in the trial court that disputed the argument that they had actual knowledge in the 1990s of the key transactions and the intended use of the 45-foot parcel. When the evidence is viewed, as it must be, in the light most favorable to the petitioners, their argument has merit. Notwithstanding, even if there were genuine issues of material fact concerning the extent of the petitioners’ actual knowledge, the trial court correctly entered a summary judgment for the respondents for the following reasons.

The trial court made the following conclusions of law in its June 12, 2003, order:

“The legal issues of establishing the rightful owner of the disputed [45-foot] strip of land, the [Abernathys’ right of] use of the land, and the original owner’s [i.e., the developer’s] right to except certain lands from the subdivision are decided in favor of the [respondents].”

These legal findings concerning the Aber-nathys’ use and title to the 45-foot parcel were correct because the petitioners had constructive notice that that parcel was to be used as a means of access to contiguous property.

The recordation of the covenant modification in September 1991 is instrumental here. The original wording of restrictive covenant 12 prohibited access from any platted lot in the Smokerise subdivision to contiguous lands “except as shown on the plat, and except as may, in the future, be granted across lot 6 and lot 12.” When the developer recorded the covenant modification, the revised language permitted access “across a 45-foot wide parcel of land on the southern end of lot 13.... ”

To avoid the clear language in the covenant modification, the petitioners argue that the filing of the modification was not effective. The developer filed that modification after the Sideses and the McLeods contracted to purchase their respective lots, but before the closing of those transactions. Neither the Sideses nor the McLeods executed or approved the covenant modification. Because the Sideses and the McLeods had an equitable interest in their lots when the covenant modification was filed, the petitioners contend that the modification was ineffective absent the consent of the Sideses and the McLeods. Stated differently, the petitioners argue that, based on the authority of Davis v. Williams, 130 Ala. 530, 30 So. 488 (1900), the Sideses’ and McLeods’ equitable interests could not be “diminished” without their consent.

Neither party has directed us to an Alabama decision that addresses whether a party holding equitable title to realty must consent to a filing concerning that property made by the record owner during the period between the execution of a purchase agreement and the transfer of legal title. The petitioners rely on Loventhal v. Home Insurance Co., 112 Ala. 108, 20 So. 419 (1896), in support of their argument. In that case the plaintiff made a claim under a fire-insurance policy for damage to certain property she had contracted to purchase. This Court held that the plaintiff owned equitable title to that realty, and that that interest prevented the defendant from denying payment on a policy exclusion that excluded damage to property “not owned by the insured in fee simple.” 112 Ala. at 112, 20 So. at 420-21. Loven-thal did not, however, address the issue presented here.

In Boyce v. Cassese, 941 So.2d 932 (Ala.2006), this Court considered a recordation situation involving constructive notice. The plaintiffs in Boyce agreed to purchase land adjacent to a golf course. Only four days before closing, an easement agreement was recorded that granted a golf club operating the adjacent course the right to use the land the plaintiffs were purchasing during golf tournaments. That easement was not recorded when the plaintiffs contracted to buy the land, and they closed on the purchase without actually knowing of its existence. After the plaintiffs learned of the easement, they sued to invalidate the easement agreement, rescind their realty purchase, and recover damages on multiple tort theories. Notwithstanding the plaintiffs’ lack of notice of the easement before closing, this Court held that the easement ran with the land and that it was binding on the plaintiffs. The Court also reasoned that the recordation of the easement charged the plaintiffs with constructive notice for purposes of applying statute-of-limitation defenses on the various tort claims:

‘Under Ala.Code 1975, § 35-4.-90, the proper recordation of an instrument constitutes “conclusive notice to all the world of everything that appears from the face” of the instrument. Thus, purchasers of real estate are “presumed to have examined the title records and knowledge of the contents of those records is imputed [to them]. ” ’
“Haines v. Tanning, 579 So.2d 1308, 1310 (Ala.1991) (quoting Christopher v. Shockley, 199 Ala. 681, 682, 75 So. 158, 158 (1917), and Walker v. Wilson, 469 So.2d 580, 582 (Ala.1985)).
“It is undisputed that the Golf Club recorded the license agreement and the amendment to the license agreement on January 24, 1997, a few days before the Boyces acquired their interest in the property. Because the agreement was recorded at the time the Boyces obtained title to the property, they are charged with notice of the recorded agreement as of that time. This action was filed in April 2002, more than five years after the Boyces obtained title to the property and more than five years after the Boyces are charged with notice of the encumbrance against their property. For this reason, the Boyces’ claims of fraudulent misrepresentation and fraudulent suppression against the Casseses are time-barred.”

941 So.2d at 943 (emphasis supplied).

As in Boyce, the respondents argue that, when the covenant modification was filed in September 1991, the developer owned all the lots in the Smokerise subdivision. Accordingly, they contend that any person who subsequently purchased a lot in the subdivision took title to the lot subject to the terms of that modification. Applying the recordation principles stated in Boyce, we agree with the respondents.

We also reject the petitioners’ argument that the covenant modification was ineffective under Ala.Code 1975, § 35-2-53. Section 35-2-53 provides, in pertinent part, that “[a]ny plat or map ... may be vacated by the owner ... of the lands at any time before the sale of any lot therein by a written instrument declaring the same to be vacated, executed, acknowledged and recorded in like manner as conveyances of land.... ” (Emphasis supplied.) It further states that “[w]hen lots have been sold, the plat or map may be vacated, in the manner herein provided by all the owners of lots in such plat or map joining in the execution of such writing.” (Emphasis supplied.) According to the petitioners, the covenant modification partially vacated the August 1991 filing; neither the McLeods nor the Sideses signed the modification instrument. Because the McLeods and the Sideses held equitable interests in lots 12 and 13 when the covenant modification was filed, the petitioners argue, the recordation of the covenant modification did not satisfy the requirement in § 35-2-53 that “all the owners of lots in [the] plat ... join in the execution of [the modification] writing.” This argument fails because it contravenes the ordinary meaning of the words “owner” and “sale” in § 35-2-53. Black’s Law Dictionary 1137, 1364 (8th ed.2004), defines an “owner” as “[o]ne who has the right to possess, use, and convey something,” and a “sale” as “[t]he transfer of property or title for a price.” The McLeods and the Sides-es could not possess or use lots 12 and 13 when the covenant modification was filed; accordingly, at that time they were not “owners” of those lots within the ordinary meaning of § 35-2-53. Further, the plain meaning of the word “sale” in that statute connotes the time at which legal, not equitable, title is transferred by deed for a price. The developer thus had the exclusive right under § 35-2-53 to file the covenant modification in September 1991 because it then owned all the lots in the subdivision.

Our conclusion is buttressed by Jefferson County v. Mosley, 284 Ala. 593, 226 So.2d 652 (1969). In that case Dillard delivered a right-of-way deed to the County in 1945. Six years later, Dillard conveyed property to Mosley and delivered a deed to him that, in its description, included the same land Dillard had previously conveyed to the County. The deed transferring the property from Dillard to the County was not recorded until after the Dillard-Mosley transaction. Mosley’s deed stated that the title he received from Dillard was subject to unspecified public roads, easements, or rights-of-way. The Mosley Court was confronted with the issue whether Mosley was an innocent purchaser with respect to the County’s right-of-way interest or took title subject to that interest. In ruling for the County, this Court stated:

“It is difficult to understand how Mosley could have read the deed and not have seen the exception clause. Whether he saw it or not, he is presumed to have knowledge of it and the consequences are the same in either case. [Citation omitted.]
“So far as the record discloses, Mosley made no effort to ascertain whether, in fact, there were any public roads, easements or rights-of-way across the land described in the deed from Dillard to him prior to the present controversy. After the controversy arose, apparently he had no trouble in ascertaining such information, as is evidenced by the map or drawing which is in the record.
“It seems to us that a reasonably prudent man who obtained a deed containing an exception such as was included in the deed from Dillard to Mosley would have made inquiry from his grantor as to why such an exception was included. If such an inquiry had been made, Mosley would no doubt have been advised of the right-of-way deed executed by Dillard to Jefferson County in 1945.”

284 Ala. at 601, 226 So.2d at 658-59. Similar to Mosley, the operative probate record here — the covenant modification — constituted notice to the petitioners that access to contiguous lands could be granted over the 45-foot parcel. Their deed-reformation claim thus fails.

In summary, regardless of whether the McLeods and the Sideses consented to the covenant modification, that September 1991 filing was effective and constituted “notice to the world” that access between platted lots in the subdivision and contiguous land could be granted over the 45-foot parcel. Because that modification was duly recorded before the developer sold any lots in the subdivision, the petitioners — subsequent purchasers of those lots — were charged with constructive notice of its terms as a matter of law. Under these circumstances, the developer did not violate restrictive covenant 12 (as revised in September 1991) when it conveyed access to the Abernathys. Moreover, the developer did not breach covenant 2(B) when it sold lot 13 to the Sideses in 1991 but retained the 45-foot parcel. That restriction stated that lots in the subdivision could be subdivided only “if said parcel contains at least 2-1/2 acres with suitable road frontage.” Even though the 45-foot parcel contained only a fraction of an acre when it was parced from lot 13, covenant 2(B) was not violated because, notwithstanding its terms, the petitioners had constructive notice before their respective purchases of lots that that parcel subsequently could be used as access to contiguous land. Because the respondents did not violate restrictive covenants 12 or 2(B), the trial court correctly entered a summary judgment for them on the deed-reformation claim.

B. Nuisance Claim

The petitioners made two principal factual allegations in their common-law nuisance claim against the Abernathys: (1) that the clearing of trees, the use of road machinery, and the construction activities on the 45-foot parcel caused hurt and inconvenience to the petitioners, and (2) that the future use of the 45-foot parcel as a means of access to the Abernathy tract would significantly increase the volume of traffic through the subdivision, causing further hurt and inconvenience. Finding that the Abernathys’ use of the 45-foot parcel was “within the legally prescribed and permitted uses,” the trial court concluded that “[njothing in the pleadings [rose] to the proof required to prevail on a nuisance count.”

The construction of a road on the 45-foot parcel to access the Abernathy tract was reasonably foreseeable after the developer recorded the covenant modification in September 1991. The petitioners have not shown that the Abernathys used the 45-foot parcel in a manner inconsistent with its intended use. Furthermore, the petitioners’ argument that the future traffic volumes over the 45-foot parcel will constitute a common-law nuisance is speculative. Accordingly, summary judgment for the respondents was correctly entered on the nuisance claim.

C. Trespass Claim

The petitioners’ trespass claim against the Abernathys assumed that the Aberna-thys did not have the right to enter the 45-foot parcel to construct a road or to remove trees from that parcel. That parcel was part of the 60-foot parcel the developer conveyed to the Abernathys in May 1993. Because the developer was authorized by the restrictive covenants for the subdivision to retain the 45-foot parcel when it conveyed lot 13 in October 1991, its subsequent conveyance of that parcel to the Abernathys was valid. Given that the Abernathys owned and had the right to possess the 45-foot parcel after May 1993, the trial court correctly ruled for the respondents on the trespass claim.

TV. Conclusion

For the reasons stated above, the Court of Civil Appeals correctly affirmed the trial court’s summary judgment for the respondents on all claims. The writ of certiorari previously issued in this proceeding is due to be quashed.

WRIT QUASHED.

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

      . We refer to the street serving lots 12 and 13 as a "cul-de-sac” even though, because of the existence of the 15-foot road, it was not totally closed to through traffic.

      . The 45-foot parcel was approximately 50 feet long and generally rectangular in shape.

      . The trial court denied the respondents' motion for a summary judgment to the extent that the trespass claim sought damages for removal of trees “beyond the 45' strip.” The petitioners dismissed that claim before they filed their appeal.

      . The petitioners also sought an injunction in the trial court to prevent the Abernathys from clearing trees on the 45-foot parcel or from using the name “Smokeridge” in marketing their residential development. The petitioners do not make any arguments concerning those claims for injunctive relief in this appeal.

      . Addressing the petitioners’ actual knowledge of the key transactions, the trial court made the following factual findings in its June 12, 2003, order: "[T]he exhibits tend to establish that both [the McLeods and the Sideses] were fully aware of the intended use of the 60' foot strip at the time of the negotiation and purchase of their lots”; "the conveyance [of lot 13 in which the developer retained title to the 45-foot parcel] and subsequent condemnation proceedings ... made the intended use of the 45'”; and "[c]learly the compensation and acreage adjustment to the [petitioners’] lots and the condemnation proceedings either put the [petitioners] on notice or should have placed them on notice of the actions or intended actions of the ... Abernathys and even more clearly to the matter of ownership of the 45-foot strip of land.”

      . The application of those defenses in an action to enforce a restrictive covenant involves mixed questions of law and fact. See Tubbs v. Brandon, 374 So.2d 1358, 1360-61 (Ala.1979). As discussed in Tubbs, a plaintiff must "delay in asserting his rights” before laches is invoked, and estoppel requires evidence "of [the plaintiffs] intent not to enforce his rights.” Id. Reliance on either of these doctrines assumes that the plaintiff failed to assert a known right or a right of which he reasonably should have known.

      . When parties enter into an executory contract to purchase real property, the vendee has an equitable interest in title before the vendor transfers legal title. Grass v. Ward, 451 So.2d 803, 805 (Ala.1984).

      . We also reject the petitioners’ two other arguments as to why the covenant modification was ineffective. First, they argue that the governing body for the subdivision property, the Elmore County Commission, must have approved the filing of the covenant modification. That Commission approved the plats that were recorded in August 1991 and with the second amendment in 1992, but it did not approve the covenant modification. Section 35-2-52, Ala.Code 1975, provides that maps and plats must be approved by the governing body in which lands are situated if more than 10,000 persons reside in the subject city or police jurisdiction. Because § 35-2-52 does not reference restrictive covenants, there was no requirement that the Commission approve the covenant modification.
      Additionally, the petitioners argue that the filing of the second amendment "revoked” the covenant modification. Assuming that the modification was ineffective, the petitioners posit that the language in covenant 12 of the second amendment, i.e., that access could be granted only as shown on the plat or across lots 6 and 12, controlled. The McLeods owned lot 12 when the second amendment was filed, but they did not sign that amendment. Therefore, the purported restatement of restrictive covenant 12 in the second amendment was a nullity because all owners of lots in the subdivision did not sign that amendment. See above discussion of Ala. Code 1975, § 35-2-53.


author: PER CURIAM. CRAWLEY, Presiding Judge,

text:
    BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY v. Marion DUNN.
    2040708.
    Court of Civil Appeals of Alabama.
    June 16, 2006.

      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.
   PER CURIAM.

The Board of School Commissioners of Mobile County (“the Board”) appeals the decision of a hearing officer that reinstated Marion Dunn, a tenured teacher, after Dunn’s employment was terminated by the Board. This is the first case for which this court has granted review pursuant to the 2004 amendments to the Teacher Tenure Act, § 16-24-1 et seq., Ala.Code 1975. See Act No. 2004-566, Ala. Acts 2004; see also § 16-24-10, Ala.Code 1975.

On December 21, 2004, Harold Dodge, the superintendent of the Mobile County Public School System, recommended to the Board that it terminate, pursuant to § 16-24-8, Ala.Code 1975, the employment of Dunn, a science teacher and the head varsity basketball coach at B.C. Rain High School in Mobile, based on Dunn’s “failure to perform [his] duties in a satisfactory manner and other good and just cause.” The superintendent informed Dunn of the following specific grounds for the proposed termination:

“1. Your performance in administering the basketball program has been unsatisfactory.
“2. You have failed to properly supervise your players during practice.
“3. You have allowed your players to strike, hit and kick other players as a form of discipline.
“4. You have failed to follow proper disciplinary procedures.
“5. You have placed the players under your supervision at risk of physical harm.”

The Board upheld the superintendent’s recommendation, and Dunn filed a notice of contest of the Board’s action pursuant to § 16-24-9(b), Ala.Code 1975. The parties selected, pursuant to § 16-24-20(b), Ala.Code 1975, an experienced employment-law arbitrator as the hearing officer.

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.

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.

Dr. Tod Childs, the senior guidance counselor at the high school, testified that the basketball players looked to Dunn as a surrogate father who enforced the school dress code, encouraged them to study, and took them to church. Childs testified that he did not agree with Dunn’s actions. According to Childs, Dunn’s career as an educator would be over if his employment were terminated.

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.

On April 30, 2005, the hearing officer rendered a decision in which he revoked the cancellation of Dunn’s employment contract as a teacher, imposed upon Dunn a 30-day suspension without pay, ordered that Dunn be barred from any coaching position for a period of 4 years, and required that Dunn apologize to his players and their families. The Board appealed the decision of the hearing officer to this court pursuant to § 16 — 24—10(b), Ala.Code 1975.

Section 16-24-10(b), Ala.Code 1975, provides 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, in which case the court may order that the parties conduct another hearing consistent with the procedures of this article.” The statute mandates an extremely deferential standard of review for a hearing officer’s decision in a teacher-tenure case. “ ‘The scope of review under the “arbitrary and capricious” standard is “narrow, and a court is not to substitute its judgment for that of the [tribunal whose decision is being reviewed].” ’ ” 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 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983))).

We discern that the legislature established the extremely deferential standard of review set out in § 16-24-10(b) as one of a number of measures designed to further the legislative purpose stated in the title to the act amending the Teacher Tenure Act, namely: “to streamline the contest and appeal processes for teachers.” See Act No. 2004-566, Ala. Acts 2004. In amending the Teacher Tenure Act, the legislature specifically authorized de novo review of Board decisions by a hearing officer, see 16-24-10(a), Ala.Code 1975, who is “experienced in employment law,” see § 16-24-20(b) who is empowered to modify, mitigate, or nullify the Board action, see § 16 — 24—16(a), Ala.Code 1975, and whose decision is subject to very limited appellate review, see § 16 — 24—10(b).

The 2004 amendments to the Teacher Tenure Act indicate that the legislature determined that the contest and appeal procedure for teacher terminations would be streamlined if it empowered experienced employment-law arbitrators to act as hearing officers to review contested terminations; if, in recognition of the expertise of those hearing officers, it gave them broad decision-making authority over teacher terminations; and if it insulated the decisions of those hearing officers from appellate review except in the most “special and important” cases. See § 16-24-10(b).

In granting review in this case, we recognize the legislature’s purpose in enacting the 2004 amendments to the Teacher Tenure Act, and we also recognize that that purpose should be effectuated. Accordingly, in all but the most egregious cases, we will defer to a hearing officer’s decision. The fact that reasonable people could differ as to the wisdom of a hearing officer’s decision invariably means that the decision is not arbitrary. Cf. Pollard v. Unus Props., LLC, 902 So.2d 18, 25 (Ala.2004) (holding that a city council’s zoning decision was not arbitrary and capricious when reasonable persons could disagree as to whether the city council made a wise or correct decision).

The term “arbitrary” has been defined as

“[i]n an unreasonable manner, as fixed or done capriciously or at pleasure. Without adequate determining principle; not founded in the nature of things; nonrational.... Without fair, solid, and substantial cause; that is, without cause based upon the law; not governed by any fixed rules or standard. Willful and unreasoning action, without consideration and regard for facts and circumstances presented. Ordinarily, ‘arbitrary’ is synonymous with bad faith or failure to exercise honest judgment and an arbitrary act would be one performed without adequate determination of principle and one not founded in the nature of things.”

Black’s Law Dictionary 104-05 (6th ed.1990) (citations omitted).

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 at 426 (quoting Prometheus Radio Project v. FCC, 373 F.3d at 389 (quoting in turn Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962))).

The Board contends on appeal that the hearing officer’s decision was arbitrary and capricious. The Board lists in its brief to this court a number of reasons in support of its contention, some of which are not relevant to the disposition of this appeal. However, we find the Board’s contention that the hearing officer’s decision was arbitrary and capricious based on the inconsistencies between the hearing officer’s conclusions and findings in light of the evidence presented to be dispositive of this appeal.

In his April 30, 2005, decision, the hearing officer concluded, in pertinent part, as follows:

“Coach Dunn’s conduct was wrong. It was very wrong. In trying to gain their respect and confidence, permitting [the players] 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 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; [and that] 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’ ... 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.... 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.
“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.... This punishment by beating was not about to end.
“And when [K.A.’s aunt] then confronted Dunn, he never stated it would stop. Instead, he simply informed [K.A.’s] aunt 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....
“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.... 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.”

In his decision, the hearing officer went on to consider Dunn’s employment history as a teacher, stating:

“At first blush there seems little need to consider the rest of [Dunn’s] 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 [K.A.’s] aunt, who wants Dunn to remain as a teacher and coach ..., 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.
“There is much good to also consider in weighing the proper action. In sorting out these fine attributes, it is clear that Dunn always 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 ... 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 to the high-school community and in a broader sense the Mobile community — the children in its schools cannot be subjected to cruel treatment that is approved by one of its coaches.”

As previously stated, the hearing officer revoked the cancellation of Dunn’s employment contract as a teacher, imposed upon Dunn a 30-day suspension without pay, ordered that Dunn be barred from any coaching position for a period of 4 years, and required Dunn to issue an apology to his players and their families.

Although this court recognizes the narrow scope of review applicable in appeals pursuant to § 16-24-10(b), we find that 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. In his decision, the hearing officer states that Dunn “lacks the basic capabilities to responsibly lead young men” and questions Dunn’s “sense of decency” and concludes that there was “no question that the Board ha[d] reasonably and substantially proven that Dunn engaged in serious misconduct....” However, the hearing officer describes Dunn as a “wonderful teacher” and states that “th[e] record contains no evidence that Dunn lacks the qualities needed for a good and sound teacher.”

The decision of the hearing officer suggests that Dunn’s position as an educator and his position as a basketball coach are somehow separate and distinct from one another. Although members of the community testified that they did not want Dunn to be discharged from his teaching position and his coaching position, no member of the community agreed that the circle drill was an appropriate disciplinary method. The decision to categorize Dunn’s actions into those of a teacher versus those of a basketball coach sets a dangerous precedent for those students who play sports under the guidance of a coach who also teaches them in the classroom. Although Dunn at times served as a coach to the basketball team, he was still at all times a teacher.

The hearing officer described Dunn’s actions as “wrong,” “warped,” “ill-conceived,” and “indefensible.” The evidence supports the hearing officer’s description of Dunn’s egregious actions. Dunn allowed players to institute the circle drill as a form of discipline. Dunn testified before the hearing officer that he allowed the circle drill to take place even though he “felt a little uncomfortable about it.” However, Dunn overlooked his concern because, he testified, the team was making so much progress as the basketball season approached. Dunn acknowledged that the rules of the circle drill allowed the players on the team to punch and kick a fellow player as a form of discipline. Dunn allowed the circle drill to continue even though the players had sustained physical injuries from their participation in the circle drill. Dunn’s actions support the hearing officer’s conclusion that Dunn showed a “lack of judgment.”

The record indicates that Dunn allowed the players to choose when a fellow player would have to submit to a circle drill and that Dunn timed the drill. Dunn was present during the circle drills and observed the players participate in the drills. Dunn explained that he “could not overrule the team” when the team decided whether to make a player submit to a circle drill. Dunn testified that the circle drills ended only after K.A.’s aunt complained to the school.

Based on the hearing officer’s findings and conclusions in light of the evidence, we conclude that the hearing officer’s decision was arbitrary and capricious. To hold otherwise, as the dissent advocates, would effectively condone the actions of a teacher who allowed a group of students to assault another student while he observed and timed the brutal act; this we cannot do. Surely the legislature would not have provided for an appeal to this court in a teacher-tenure case if its intent was for us to simply rubber stamp the decision of the hearing officer. Accordingly, the decision of the hearing officer is reversed, and the cause is remanded for the parties to conduct another hearing consistent with the procedures of § 16-24-10, Ala.Code 1975.

REVERSED AND ’ REMANDED WITH INSTRUCTIONS.

THOMPSON and BRYAN, JJ., concur.

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

CRAWLEY, P.J., dissents, with writing.

CRAWLEY, Presiding Judge,

dissenting.

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 of ‘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.”

The main opinion recites the appropriate principles underlying our very deferential standard of review in Teacher Tenure Act cases. The main opinion’s reversal of the hearing officer’s decision, however, demonstrates that its recitation of those principles is mere lip service. By substituting its judgment for that of the hearing officer in a case in which reasonable people could differ as to the wisdom of the decision, the main opinion is engaging in judicial activism and usurpation of the legislative function. For these reasons, I dissent.

      . Section 16-24-20(b) provides:
      "If a teacher should timely file a contest from a decision as provided in this article, the employing board and the teacher shall, within seven days of such filing, either (1) mutually agree upon a person to hem the teacher’s contest, or (2) submit a joint request for a panel of arbitrators to the Federal Mediation and Conciliation Services’ Office of Arbitration Services (FMCS). The joint request shall specify that the parties prefer a hearing officer who is experienced in employment law.”

      . Section 16-24-10(a) provides that "[t]he 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.”

      .Section 16-24-10(b) provides, in pertinent part:
      "All appeals of a final decision of the hearing officer shall lie with the Court of Civil Appeals.... The Court of Civil Appeals shall have discretion to refuse to hear appeals of final decisions of a hearing officer pursuant to this article. Review by the Court of Civil Appeals pursuant to this article is not a matter of right, but of judicial discretion, and an appeal may be granted only when the court determines there are special and important reasons for granting the appeal.”