author: NABERS, Chief Justice.

text:
    EDWARDS MOTORS, INC. v. Gary HUDGINS and Lora Hudgins.
    1051023.
    Supreme Court of Alabama.
    Oct. 20, 2006.
    William A. Austill and Jessica Christie Morowitz of Austill, Lewis & Simms, P.C., Birmingham, for appellant.
    Submitted on appellant’s brief only.
   NABERS, Chief Justice.

Edwards Motors, Inc., appeals from an order of the Etowah Circuit Court denying Edwards’s motion to compel arbitration in litigation filed against it by Gary Hudgins and Lora Hudgins. For the reasons discussed below, we reverse the trial court’s order denying the motion to compel arbitration.

Facts and Procedural History

Edwards is a motor-vehicle dealership located in Gadsden. The Hudginses purchased a 1993 model Infiniti automobile (“the vehicle”) from Edwards on September 4, 2003. Edwards financed the purchase. The Hudginses executed a motor-vehicle installment sales contract (“the sales contract”), a credit application, a promissory note, and an arbitration agreement in connection with the purchase. The sales contract stated that Edwards retained a security interest in the vehicle.

Based on Edwards’s belief that the Hud-ginses had either (a) moved the vehicle without Edwards’s permission or (b) provided a false address on their credit application, Edwards initiated a criminal proceeding against the Hudginses on June 21, 2004, charging the Hudginses with defrauding a secured creditor in violation of Ala.Code 1975, § 13A-9-46. The trial on the criminal charges was scheduled in the municipal court for the City of Gadsden on December 16, 2004. Before the trial, the parties agreed that the prosecution of the criminal case would be terminated if the Hudginses returned the vehicle to Edwards. The municipal judge who presided over the criminal proceeding was informed of that agreement and made the following notation in the record: “[To be dismissed] upon agreement of the parties to return vehicle.” The criminal proceeding was dismissed on January 6, 2005. The Hudgins-es, however, did not return the vehicle, and, according to Edwards, they filed for bankruptcy protection on the morning on which they were to return the vehicle.

On August 25, 2005, the Hudginses filed a malicious-prosecution action against Edwards in the Etowah Circuit Court, alleging that Edwards had “maliciously and without probable cause” instituted the criminal proceeding. Edwards filed a motion on November 29, 2006, to compel arbitration of the malicious-prosecution action based on the arbitration agreement the Hudginses executed when they purchased the vehicle. The pertinent provisions in the arbitration agreement state:

“In connection with the undersigned’s acquisition of the below described motor vehicle ..., the undersigned and [Edwards] mutually covenant, stipulate and agree, in connection with the resolution of any dispute arising out of or relating to or concerning all of the contract (s) and agreements entered into by the parties of and concerning the below described motor vehicle, and business relationships resulting therefrom, as follows: ... The undersigned agrees that all disputes not barred by applicable statutes of limitations, whether denominated as a claim, counter-claim, cross claim or third party claim, resulting from or arising out of or relating to or concerning the transaction entered into (including but not limited to: any matters taking place either before or after the parties entered into this agreement, including any prior agreements or negotiations between the parties; the terms of this agreement and all clauses herein contained, their breadth and scope, and any term of any agreement contemporaneously entered into by the parties concerning any goods or services acquired by the undersigned; the past, present and future condition of the motor vehicle; the conformity of the motor vehicle to any contract description; the representations, promises, undertakings, warranties, or covenants made by [Edwards] in connection with the undersigned’s acquisition of the motor vehicle, or otherwise dealing with the motor vehicle; any lease terms or the terms of credit and/or financing in connection therewith; any terms or provisions of any credit life and/or disability insur-anee ... [or] extended service contract ...; and all claims or disputes as to any body and/or mechanical repairs made to the vehicle ... at any time ...) shall be submitted to BINDING ARBITRATION, pursuant to the provisions of 9 U.S.C. Section 1, et seq. and according to the Commercial Rules of the American Arbitration Association

(Capitalization in original; emphasis added.) In support of its motion, Edwards submitted evidence to the trial court indicating that the vehicle had been manufactured in Japan, that it was first titled in Virginia, that it was inspected in the District of Columbia, that it was purchased at an auction in Tennessee, and that the financing of the sale to the Hudginses had been facilitated through the services of a credit-reporting bureau in Georgia. On March 17, 2006, the trial court denied Edwards’s motion. Edwards appealed.

II. Standard of Review

We recently set out the standard of review for a ruling on a motion to compel arbitration. We stated in Carroll v. W.L. Petrey Wholesale Co., 941 So.2d 234 (Ala.2006):

“ ‘ “ ‘[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.’ Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999). Furthermore:
“ ‘ “ ‘A motion to compel arbitration is analogous to a motion for summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Id. “After a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” ’
“ ‘ “Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (emphasis omitted)).”
‘Vann v. First Cmty. Credit Corp., 834 So.2d 751, 752-53 (Ala.2002).’
“Blue Cross Blue Shield of Alabama v. Rigas, 923 So.2d 1077, 1083 (Ala.2005).”

941 So.2d at 236.

III. Analysis

A narrow issue is presented by this appeal: Should the trial court have compelled arbitration of the Hudginses? malicious-prosecution claim, which arose from Edwards’s filing criminal charges against the Hudginses in connection with the financing of the vehicle purchased by the Hudginses?

The arbitration agreement contains expansive language that provides for binding arbitration “in connection with the resolution of any dispute arising out or relating to or concerning all of the contract(s) and agreements entered into by the parties of and concerning the ... vehicle, and business relationships resulting therefrom.” The arbitration agreement further states that “all disputes ... resulting from or arising out of or relating to or concerning the [purchase of the vehicle] (including but not limited to: any ... [dispute concerning the] terms of credit and/or financing ...), shall be submitted to BINDING ARBITRATION....” (Capitalization in original.)

Edwards has met its burden to prove the existence of a contract providing for arbitration. Adcock v. Adams Homes, LLC, 906 So.2d 924, 929 (Ala.2005)(movant has burden to prove the existence of contract containing arbitration provision). Further, Edwards has demonstrated that the sale of the vehicle was a transaction that affected interstate commerce. 906 So.2d at 929-30 (party seeking to compel arbitration has burden to demonstrate that the transaction affects interstate commerce).

The dispute the movant seeks to arbitrate must fall within the scope of the arbitration agreement. See Cook’s Pest Control v. Boykin, 807 So.2d 524, 527 (Ala.2001)(arbitration not compelled where movant attempted “to enforce the clause beyond its scope”); W.L. Petrey Wholesale Co., supra (claims not arbitrable because they fell outside the scope of the agreement containing the arbitration clause). As stated above, the burden of proving that the dispute falls outside the scope of the arbitration agreement shifts to the nonmovant after the movant proves the existence of a contract containing an arbitration provision and that the transaction that is the subject of the contract had an impact on interstate commerce. W.L. Petrey Wholesale Co., supra; Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000). Moreover, in construing the scope of an arbitration agreement, the Court has noted that “ ‘arbitration agreements [are] as enforceable as any other contracts, but not more so.”’ Hales v. ProEquities, Inc., 885 So.2d 100, 105 (Ala. 2003) (quoting Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 n. 12, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967)). “ ‘ “[A] party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” ’ ” 885 So.2d at 105 (quoting AT & T Techs., Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)).

The dispute Edwards desires to arbitrate is the malicious-prosecution claim arising from its institution of a criminal complaint against the Hudginses based on their purported violation of Edwards’s security interest in the vehicle. This Court recently held in Dan Wachtel Ford, Lincoln, Mercury, Inc. v. Modas, 891 So.2d 287 (Ala.2004), that a malicious-prosecution claim against an automobile dealer was arbitrable. The facts in Dan Wachtel Ford are similar to those here.

Modas, the plaintiff in Dan Wachtel Ford, contracted to purchase a used sport-utility vehicle (“the SUV”) in a transaction that contemplated financing through a third party. Modas took possession of the SUV after signing a retail installment contract, a credit application, a stand-alone arbitration agreement, and several other documents related to the purchase. Subsequently, Modas was advised that financing could not be obtained for the purchase of the SUV. Because the retail installment contract could not be assigned by the dealer to a finance company, the dealer instructed Modas to return the SUV. Modas agreed to return the SUV if the dealer would return to her title to, and the possession of, the vehicle Modas had traded to the dealer when she signed the transaction documents to purchase the SUV. That swap was not possible, however, because the dealer had sold the trade-in vehicle shortly after Modas took possession of the SUV. Dan Wachtel Ford, 891 So.2d at 288-89.

An impasse developed between Modas and the dealer concerning the conditions for the return of the SUV. When Modas did not return the SUV, the dealer repossessed it and initiated criminal charges against Modas for “theft by deception.” That charge was eventually nol-prossed. After the charge was nol-prossed, Modas filed claims in the Limestone Circuit Court seeking damages on the tort theories of conversion of the trade-in vehicle, trespass to personal property, malicious prosecution, and abuse of process. Relying on the arbitration agreement Modas had signed when she took possession of the SUV, the dealer moved to compel arbitration. As here, the trial court in Dan Wachtel Ford refused to enforce the arbitration agreement, and the dealer appealed. 891 So.2d at 289-90.

Holding that the arbitration agreement remained effective despite the failure of the parties to complete the sale, the Dan Wachtel Ford Court compelled arbitration. 891 So.2d at 293. Among other arguments, Modas contended on appeal that her tort claims were outside the scope of the arbitration agreement. In rejecting that argument, the Court in Dan Wachtel Ford stated:

“Modas next argues that the language of the arbitration agreement is not sufficiently broad in scope to encompass her claims. We reject this argument. Modas sued Dan Wachtel Ford alleging conversion of her 1999 Cougar, trespass to her personal property, malicious prosecution, and abuse of process. The claims alleging conversion and trespass arise directly out of her purchase transaction with Dan Wachtel Ford; Modas’s claims of malicious prosecution and abuse of process arise out of actions taken by Dan Wachtel Ford upon Mo-das’s refusal to return the [SUV]. All these claims are !claim[s] — resulting from or arising out of or relating to or concerning the transaction entered into’ and, therefore, they are encompassed within the scope of Modas’s agreement to arbitrate.”

891 So.2d at 293 (emphasis added). The arbitration agreement executed by the Hudginses is virtually identical to the one enforced in Dan Wachtel Ford. Both agreements require arbitration of any dispute “arising out or relating to or concerning all of the contract(s) and agreements entered into by the parties of and concerning the ... vehicle, and business relationships resulting therefrom .... (including, but not limited to: any ... [dispute concerning the] terms of credit and/or financing ...).” Under these circumstances, Dan Wachtel Ford is controlling authority on the issue whether the Hudginses’ malicious-prosecution claim against Edwards falls within the scope of the arbitration agreement.

All of the conditions for enforcement of an arbitration agreement — a contract calling for arbitration, the impact of the transaction on interstate commerce, and a dispute falling within the scope of the agreement — are present here. For that reason, we reverse the order denying Edwards’s motion to compel arbitration and remand this cause to the trial court for proceedings consistent with this decision.

REVERSED AND REMANDED.

LYONS, WOODALL, SMITH, and PARKER, JJ., concur.

      . The record does not contain a separate security instrument.

      . Section 13A-9-46(a) states that “[a] person commits the crime of defrauding secured creditors if he destroys, removes, conceals, encumbers, transfers or otherwise deals with property subject to a security interest with intent to hinder enforcement of that interest.” Defrauding a secured creditor is a Class A misdemeanor.

      . A claimant must prove the following elements to prevail on a malicious-prosecution claim: “(1) a judicial proceeding initiated by the defendant, (2) the lack of probable cause, (3) malice, (4) termination in favor of the plaintiff, and (5) damage.” Cutts v. American United Life Ins. Co., 505 So.2d 1211, 1214 (Ala. 1987).

      . The terms of the retail installment contract stated that, if that contract was not assigned to a third party, that contract would be void and Modas would either return the SUV or pay cash for that vehicle. 891 So.2d at 293.


source: Caselaw Access Project

author: SEE, Justice.

license: Public Domain

text:
    Ex parte John F. WARD. (In re State of Alabama v. John F. Ward).
    1050951.
    Supreme Court of Alabama.
    Oct. 20, 2006.

      John F. Ward, pro se.
    Troy King, atty. gen., Kevin C. Newsom, deputy atty. gen., and Madeline Hinson Lewis, asst. atty. gen., for respondent.
   SEE, Justice.

John F. Ward petitions this Court for a writ of mandamus directing the Marion Circuit Court to set aside its order assessing a filing fee on Ward’s first Rule 32, Ala. R.Crim. P., petition and to grant his request to be allowed to proceed in forma pauperis in his second Rule 32 petition. We conclude that the trial court erred in two respects: its assessment of a filing fee against Ward was untimely, and it exceeded its discretion in withholding its ruling on Ward’s request to be allowed to proceed in forma pauperis on his first Rule 32 petition. Ward also asks this Court to direct the Marion Circuit Court to set aside or vacate its order revoking his probation. Because we conclude that Ward fails to show that he has a clear legal right to this relief, we deny the petition as to this claim.

I. Factual and Procedural Background

John F. Ward was convicted of two counts of felony driving under the influence in separate cases arising and prosecuted in Marion and Winston Counties. Ward pleaded guilty in both cases and received two 10-year sentences, to be served concurrently; however, both sentences were suspended, and the trial court placed Ward on supervised probation for 5 years. Ward did not file a timely notice of appeal from his convictions to the Court of Criminal Appeals. His convictions became final on May 3, 2004, following the 42-day period within which a party may seek appellate review as prescribed by Rule 4(b), Ala. R.App. P. On November 23, 2004, according to Ward’s petition, the trial court revoked Ward’s probation because he failed to appear for the initial “lock-down.” On April 15, 2005, the Court of Criminal Appeals affirmed the revocation of Ward’s probation by an unpublished memorandum. Ward v. State (No. CR-04-0378), 926 So.2d 1084 (Ala.Crim.App. 2005) (table).

According to the trial judge, Ward has been a “prolific inmate” in his “frivolous post-conviction filings.” Answer of the trial judge at 9, 11. Ward has filed two appeals from his convictions for driving under the influence, a petition for the writ of mandamus in the Court of Criminal Appeals, two federal petitions for the writ of habeas corpus, and a previous Rule 32 petition. Id. at 11.

On December 12, 2005, Ward filed his second Rule 32 petition, in which he challenges the Marion County driving-under-the-influence conviction and, according to Ward, asserts “only [j]urisdictional grounds for relief.” With that petition, he filed a request to be allowed to proceed in forma pauperis, attaching a statement verified by the appropriate prison official demonstrating his prison-account balance for the relevant period.

On January 11, 2005, the trial court issued an order stating:

“Pursuant to Rule 32.6, paragraph (a), the Court hereby assesses the filing fee of $204 to be paid to the Clerk of the Court as a result of the defendant’s pri- or meritless Rule 32 petition. The Court hereby orders the correctional institution having custody of [Ward] to withhold fifty percent (50%) of all monies the institution presently has on deposit for [Ward] or receives in the future for [him] until the $204 filing fee hereby assessed has been collected and paid in full.
“The Court withholds ruling on the Motion to Proceed In Forma Pauperis in the defendant’s second Rule 32 Petition filed on December 12, 2005 until the filing fee in his first petition has been paid in full.”

Ward filed a petition for a writ of mandamus asking the Court of Criminal Appeals to direct the trial court to set aside its order and to grant his request to proceed in forma pauperis on his second Rule 32 petition. On April 3, 2006, the Court of Criminal Appeals denied his petition, without an opinion. Ex parte Ward (No. CR 05-0787), — So.2d - (Ala.Crim.App. 2006) (table). Ward now petitions this Court seeking the same relief.

II. Standard of Review

In Ex parte Melton, 837 So.2d 819, 820-21 (Ala.2002), this Court discussed the standard of review applicable to a petition for the writ of mandamus:

“ ‘A writ of mandamus is an extraordinary remedy, and it will be “issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991).’

“Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998).”

Further, this Court has stated: “ “Mandamus, and not appeal, is the proper method by which to compel the circuit court to proceed on an in forma pauperis petition.”’” 837 So.2d at 822 (quoting Ex parte Beavers, 779 So.2d 1223, 1224 (Ala.2000), quoting in turn Goldsmith v. State, 709 So.2d 1352, 1353 (Ala.Crim.App.1997)).

III. Analysis

The petition before this Court presents two issues: whether the trial court exceeded its jurisdiction by assessing a filing fee on a Rule 32 petition nine months after it summarily dismissed the petition, when it was considering Ward’s second Rule 32 petition, and whether the trial court exceeded its discretion by conditioning the consideration of Ward’s second Rule 32 petition on his paying the filing fee associated with his first petition.

The trial judge, through the Attorney General of the State of Alabama, argues that both § 12-19-70(b), Ala.Code 1975, and Rule 32.6(a), Ala. R.Crim. P., allow the trial court to impose the filing fee on Ward. Section 12-19-70(b) provides that “[t]he docket fee may be waived initially and taxed as costs at the conclusion of the case if the court finds that payment of the fee will constitute a substantial hardship.” See also Fincher v. State, 724 So.2d 87, 90 (Ala.Crim.App.1998) (“Section 12-19-70(b) ... provides that ... the docket fee of an indigent petitioner may be waived initially and then taxed as costs at the conclusion of the case.”). The Alabama Rules of Criminal Procedure are more specific:

“If, upon final disposition of the petition, the court finds that all of the claims for relief are precluded for any of the reasons stated in Rule 32.2, it may assess the filing fee, or any portion thereof, and order the correctional institution having custody of the petitioner to withhold 50% of all moneys the institution then has on deposit for the petitioner, or receives in the future for the petitioner, until the filing fee that has been assessed by the court has been collected and paid in full.”

Rule 32.6(a), Ala. R.Crim. P.

The State points out that neither the language of the statute nor the language of the rule imposes a definite time within which the court must order that the filing fee must be paid. Neither party has provided any authority resolving the question, nor has this Court’s research located any caselaw that is on point.

The wording of the statute and the wording of the rule suggest that the time within which the trial court may make such an order is not unlimited. In determining the meaning of a statute or a court rule, this Court looks first to the plain meaning of the words as they are written. See Tolar Constr., LLC v. Kean Elec. Co., 944 So.2d 138, 149 (Ala.2006) (‘““Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.” ’ ” (quoting other cases)); Alabama State Bar v. Coffey, 938 So.2d 942, 948 (Ala.2006) (“ ‘ “ ‘[T]he construction of rules of court [is] for the court which promulgated them.’ ... ‘We start with the basic premise that words used in court rules must be given their plain meaning.’ ” ’ ” (quoting other cases)). The statute provides that the court may tax the fee as costs “at the conclusion of the case,” and Rule 32.6(a) states that, “upon final disposition of the petition,” the court may make such an order. These phrases are clear and unambiguous.

In this case, the trial court summarily dismissed Ward’s first Rule 32 petition on April 5, 2005; it did not order Ward to pay the filing fee until January 11, 2006. The conclusion of the case and the final disposition of Ward’s first petition occurred when the trial court dismissed the petition. It was at that point that the trial court was authorized to impose the fee it previously had waived. However, the trial court did not do so at that time. Instead, from the timing of the order imposing the fee, it appears that the trial court imposed the fee not to punish the prior meritless petition, but to prevent what it considered to be yet another frivolous filing. The State would frame the issue in terms of a trial court’s power to control frivolous postconviction filings, and a court does have the power to protect itself from abusive litigants. Procup v. Strickland, 792 F.2d 1069, 1072-73 (11th Cir.1986); Ex parte Pritchett, 832 So.2d 100, 102 (Ala.Crim.App.2002) (“the ‘trial court is not without power to impose restrictions’ ” on abusive litigants). However, “ ‘[although trial courts, in regulating the activities of abusive litigants, may impose restrictions under appropriate circumstances, these restrictions cannot deny the litigant meaningful access to the courts.’ ” Ex parte Coleman, 728 So.2d 703, 707-08 (Ala.Crim.App.1998) (quoting Coleman v. State, 539 So.2d 454, 457 (Ala. Crim.App.1988)). The State argues that, given “Ward’s continuous filing of merit-less claims!,] the withholding of a ruling on his in forma pauperis application is a permissive injunctive device.” State’s answer at 11. We disagree.

The trial court here has crossed “the fine line between legitimate restraints and an impermissible restriction on a prisoner’s constitutional right of access to the courts.” Procup, 792 F.2d at 1072. The order imposing the filing fee came nine months after the trial court dismissed Ward’s first Rule 32 petition. The order imposing the fee was issued only after Ward had filed his second petition. The timing of the order suggests that it was the filing of this second petition that prompted the trial court to impose a fee upon Ward for the first petition and to condition its consideration of Ward’s request to proceed in forma pauperis on his second Rule 32 petition upon payment of those fees. The trial court’s order was impermissible for two interrelated reasons.

First, the trial court has, in effect, imposed a fee that Ward must pay before it would entertain Ward’s request to proceed in forma pauperis. The trial court expressly conditioned its consideration of the request to proceed in forma pauperis on Ward’s paying $204. This Court has recognized that “ ‘ “[t]o impose any financial consideration between an indigent prisoner and the exercise of his right to sue for his liberty is to deny that prisoner equal protection of the laws.” ’ ” Ex parte Dozier, 827 So.2d 774, 775 (Ala.2002) (quoting Ex parte Beavers, 779 So.2d at 1224, and citing Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961)). This Court has further stated:

“ ‘ “While habeas corpus may, of course, be found to be a civil action for procedural purposes, it does not follow that its availability in testing the State’s right to detain an indigent prisoner may be subject to the payment of a filing fee.” ... “In order to prevent ‘effectively foreclosed access’ [to the courts], indigent prisoners must be allowed to file appeals and habeas corpus petitions without payment of docket fees.” ’ ”

Ex parte Melton, 837 So.2d at 821 (quoting Smith v. Bennett, 365 U.S. 708, 712, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961), and Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)) (alterations in original). Yet the order requires the payment of a $204 fee before the trial court will determine Ward’s indigent status.

Second, the court’s order withholding a decision on Ward’s request to be allowed to proceed in forma pauperis until he has paid the filing fee for his earlier petition appears tantamount to a denial of Ms request. Rule 6.3(a), Ala. R.Crim. P., defines an “indigent” as “a person who is financially unable to pay for his or her defense.” If Ward truly is indigent, then he logically would not be able to pay the fee required by the trial court’s order so that he could have his indigency established. Thus, for all practical purposes, by withholding its determination of Ward’s indigent status, the trial court has denied his request to proceed in forma pauperis. However, this Court held in Ex parte Dozier that the trial court lacks the discretion to deny a request to proceed in forma pauperis for reasons other than the mov-ant’s financial status. 827 So.2d at 774. After determming from the facts that Dozier appeared to be indigent, this Court held that the trial court erred when it denied his request “on its findings that Dozier’s Rule 32 petition was procedurally barred and that it lacked merit, rather than on a consideration of Dozier’s financial status.” 827 So.2d at 776. For that reason, we issued the writ of mandamus and directed the trial court to allow the indigent petitioner to proceed in forma pauperis. Id.

Here, the trial court ordered Ward to pay the filing fee for his first Rule 32 petition only after he filed his second Rule 32 petition, over nine months after the trial court had dismissed the first petition. The trial court’s order does not mention Ward’s financial ability to pay, but instead refers to his two notices of appeal, his petition for the writ of mandamus to the Court of Criminal Appeals, his habeas corpus petitions, and his previous Rule 32 petition. In fact, the trial court says that it “was withholding a ruling on Ward’s in forma pauperis request!,] specifically stating that Ward’s previous filings had all been addressed and denied by the appellate courts.” State’s answer at 11.

The request to be allowed to proceed in forma pauperis is not the appropriate vehicle for the trial court to rule on the merits of the indigent defendant’s case. Instead, the Alabama Rules of Criminal Procedure provide other mechanisms to deal with a meritless claim, including summary dismissal under Rule 32.7(d). Because the trial court issued its order based on its belief that Ward’s Rule 32 petition was successive, procedurally barred, and without merit in fact or law instead of upon Ward’s financial ability to pay the filing fee, the trial court exceeded its discretion. Ward has thus established a clear legal right to have his request to proceed in forma pauperis considered and ruled upon.

Finally, Ward has supplemented his petition, asking this Court to order the trial court to set aside or vacate its order revoking his probation. He claims that the trial court lacked jurisdiction to revoke his probation because, he says, he was “never arrested on a warrant issued by the Marion County Circuit Court or upon a Written Statement filed by a State Probation Officer as required by the Code of Alabama 1975 § 15-22-50.” Ward’s supplemental petition at 1. However, Ward provides no evidence as to whether the trial court issued a warrant or an order of probation because, he says, he is “unable to obtain a copy of the Case Action Summary sheets from the Marion County Circuit Clerks.” Ward’s supplemental petition at 3. Thus, he has failed to provide “parts of the record that would be essential to an understanding of the matters set forth in the petition” for the writ of mandamus as required by Rule 21(a), Ala. R.App. P. Nevertheless, we have acquired and reviewed the case-action-summary sheets from the Marion Circuit Court. These sheets do not prove Ward’s assertions; instead, they state that an arrest warrant was issued on June 21, 2004. Thus, Ward has failed to establish a clear legal right to the relief he seeks in his supplemental petition.

IV. Conclusion

Ward has established a clear legal right to an order directing the trial court to vacate its order imposing a filing fee and withholding consideration of his request to be allowed to proceed in forma pauperis. The trial court has untimely assessed a filing fee against Ward and has conditioned its willingness to entertain Ward’s request to proceed in forma pauperis in his second Rule 32 petition upon his payment of that fee; therefore, we grant the petition for the writ of mandamus and direct the trial court to set aside its order assessing a filing fee on Ward’s first Rule 32 petition and to consider and rule upon Ward’s request to be allowed to proceed in forma pauperis on his second Rule 32 petition. However, Ward failed to demonstrate a clear legal right to a writ directing the trial court to vacate its order revoking Ward’s probation; therefore, we deny his supplemental petition as to this claim.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

NABERS, C.J., and HARWOOD, STUART, and BOLIN, JJ., concur.

      . Ward argues that the conviction and sentence are invalid because, he says, the trial court "suspended the original sentence without entering an Order for Probation,” "proceeded without a valid indictment, one that failed to charge all the essential elements,” "failed to afford him an allocution at sentencing,” "accepted a plea agreement that called for an illegal sentence,” "failed to sentence him in OPEN COURT,” "[flailed to pronounce JUDGMENT in Open Court,” and "accepted a guilty plea NOT IN OPEN COURT.” Ward’s reply brief at 1-2 (capitalization in original).

      . Webster’s Third New International Dictionary 2518 (1966) defines “upon” to mean “immediately following on” or “very soon after.” The order, coming nine months after the dismissal of Ward’s first petition, was thus not “upon final disposition of the petition.”

      . The State appears to concede that the trial court has denied the request, by claiming that the order withholding a ruling on the request complies with Ex parte Hamm, 785 So.2d 1126, 1128 (Ala.2000), which requires the trial court to state its reasons for denying a request to proceed in forma pauperis in writing and with specificity. There would be no need to comply with Ex parte Hamm if the request had not been denied.


author: LYONS, Justice.

text:
    Ex parte Emory L. TERRY, as administrator of the estate of Fay Sewell Terry, deceased. (In re: In the matter of the estate of Fay Sewell Terry, deceased).
    1051404.
    Supreme Court of Alabama.
    Oct. 20, 2006.

      Stephen Mitchell Tunstall, Mobile; and Thomas F. Garth of Lyons, Pipes & Cook, P.C., Mobile, for petitioner Emory L. Terry.
    J. Michael Druhan, Jr., and Jason K. Hagmaier of Johnston Druhan, L.L.P., Mobile, for respondent Judge Don Davis.
   LYONS, Justice.

Emory L. Terry, as the administrator of the estate of Fay Sewell Terry, deceased (“the administrator”), petitions this Court for a writ of mandamus directing the Mobile Probate Court to vacate its June 23, 2006, and July 12, 2006, orders, which were entered after the administrator filed a petition in the circuit court to remove the administration of the estate from the probate court to the Mobile Circuit Court. We deny the petition.

I. Facts and Procedural Background

On June 13, 2006, the administrator filed a petition to remove the administration of the estate from the probate court to the circuit court. On June 23, 2006, the probate judge entered an order purporting to deny the petition for removal, based primarily on its view that final settlement of the administration of the estate had begun and that the petition was therefore untimely. The administrator then filed with the probate court a motion to vacate the court’s order denying removal. On June 30, 2006, the administrator filed a petition for a writ of mandamus with this Court asking us to direct the probate judge to vacate its June 23, 2006, order. On July 12, 2006, the probate court issued another order, vacating its June 23, 2006, order but reincorporating the findings of fact and conclusions of law of the previous order.

Based in part on the probate court’s findings of fact and conclusions of law in its July 12 order, incorporated from the June 23 order, the circuit court entered its initial order on July 17, 2006, over one month after the filing of the petition to remove, denying the petition. The administrator then filed a motion to amend or vacate the circuit court’s order; that motion is being held in abeyance pending our review of this mandamus petition. The administrator also filed an amended petition for the writ of mandamus contending that the fact that the July 12 order set aside the June 23 order, which was the subject of the original mandamus petition, does not render the removal issue moot because the probate court, he says, had no jurisdiction to rule on the petition for removal and all orders entered after the filing of the petition for removal should be stricken.

II. Standard of Review

The administrator’s challenge to the probate court’s jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Johnson, 715 So.2d 783, 785 (Ala.1998). As we recently stated in Ex parte Williford, 902 So.2d 658, 661-62 (Ala.2004):

“Our standard of review of a petition for a writ of mandamus is well settled: ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995).”

Although this Court reviews a mandamus petition to determine whether the trial court exceeded its discretion, this Court reviews issues of law de novo.

“ ‘[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the court’s judgment carries no presumption of correctness.’ Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996). Questions of law are reviewed de novo. BT Sec. Corp. v. W.R. Huff Asset Mgmt. Co., 891 So.2d 310 (Ala.2004).”

Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004). The petitioner’s claim that the probate court lacked subject-matter jurisdiction to rule on the removal petition presents a question of law, which we review de novo.

III. Analysis

Section 12-11-41, Ala.Code 1975, provides:

“The administration of any estate may be removed from the probate court to the circuit court at any time before a final settlement thereof, by any heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, without assigning any special equity; and an order of removal must be made by the court, upon the filing of a sworn petition by any such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, reciting that the petitioner is such heir, devisee, legatee, dis-tributee, executor, administrator or administrator with the will annexed and that, in the opinion of the petitioner, such estate can be better administered in the circuit court than in the probate court.”

(Emphasis added.)

In Ex parte McLendon, 212 Ala. 403, 405, 102 So. 696, 698 (1924) (“McLendon I ”), this Court addressed the pleading requirements of a removal petition under the act that is now codified at § 12-11-41:

“The words ‘at any time before a final settlement,’ found in the removal act, mean before proceedings for settlement begin, not before they are completed. The better and approved practice is to aver in the removal petition that no steps have been taken for a settlement in the probate court.”

(Emphasis added.) Although McLendon I refers to “[t]he better and approved practice,” the Court in McLendon I did not require that the petition for removal plead the timeliness of the petition. Instead, § 12-11-41 is specific as to what must be pleaded in a petition for removal of the administration of an estate from the probate court to the circuit court to make a prima facie case for removal. The McLen-don I Court went on to state: “We would say a petition using the statutory words would be sufficient, if the facts support them in their legal sense. Being an ex parte proceeding, it is the existence of these facts presented in statutory way that gives the court jurisdiction.” 212 Ala. at 405, 102 So. at 698. Because a petition containing the required averments under § 12-11-41 conveys jurisdiction to the circuit court, an order granting a removal petition would be a formality, when the circuit court makes “no judicial finding that these facts exist,” but merely enters “an order ... as of course.” 212 Ala. at 405, 102 So. at 698. Although the administrator’s petition for removal lacked aver-ments that would constitute what the McLendon I Court described as “[t]he better and approved practice,” it did contain the minimum pleading requirements required by statute to make a prima facie case for removal.

Consistent with McLendon I, this Court in Ex parte McLendon, 824 So.2d 700, 704 (Ala.2001) (“McLendon II ”), held that when a party has made a prima facie showing that the party is entitled to the removal of the administration of an'estate under § 12-11-41, “the circuit court must order its removal, subject to retransfer upon a motion by the opponent of the transfer, and a finding by the circuit court that the party effecting removal lacked standing under the statute.” In McLen-don II, this Court held that the circuit court, not the probate court, must determine the threshold issue of standing, and we issued a writ of mandamus requiring the circuit court to set aside its order deferring to the probate court for a determination of standing. There, as here, the probate court continued to assert jurisdiction during the pendency of the petition for removal.

However, the petition for removal in 1McLendon II was also grounded upon § 43-8-198, applicable to will contests, which provides, in pertinent part:

“Upon the demand of any party to the contest, made in writing at the time of filing the initial pleading, the probate court, or the judge thereof, must enter an order transferring the contest to the circuit court of the county in which the contest is made.... ”

(Emphasis added.) Unlike § 12-11-41, the duty to order the removal under § 43-8-198 is on the probate court, not the circuit court. Consequently, the petitioner in McLendon II sought a writ of mandamus directed to both the probate court and the circuit court, and this Court issued the writ as to each petition. In this proceeding, the administrator sought a writ of mandamus directed to only the probate court. The administrator’s mandamus petition contained averments relating to standing and asserting that the estate could be better administered in the circuit court as required by § 12-11^41; it did not indicate the existence of a will contest implicating § 43-8-198.

Pursuant to § 12-11-41 and the construction of that statute and its predecessors in McLendon I and McLendon II, the circuit court should have granted the administrator’s removal petition, thereby depriving the probate court of any opportunity to engage in further proceedings. However, not only did the circuit court fail to enter an order on the removal petition for more than a month, it also denied the petition based upon conclusions as to untimeliness drawn from matters set forth in orders entered by the probate court during the interval between the filing of the petition for removal and the entry of the circuit court’s order.

The root of the problem in this case is the failure of the circuit court to act. However, that failure does not warrant this Court’s granting the administrator’s petition for a writ of mandamus requiring the probate court to set aside any orders it entered during the month-long interval during which the circuit court failed to enter the order necessary to take jurisdiction of the estate from the probate court. As previously noted, the separate provision for removal of a will contest that requires action by the probate court (§ 43-8-198) is not here at issue. A proper remedy would have been a petition for a writ of mandamus directed to the circuit court requiring it (a) to set aside its order denying the petition, (b) to enter the ex parte order granting the petition as required by § 12-11-41 based upon the averments in the petition, and (c) thereafter to review de novo, without regard to any findings of the probate court, the question of the timeliness of the petition.

In this fashion, the administrator would have been placed in the position in which he would have been had the circuit court acted seasonably on the petition for removal. Alternatively, and in view of the untimeliness of a writ of mandamus directed to the circuit court at this stage of the proceedings, if upon denial of this petition for a writ of mandamus the circuit court denies the administrator’s pending motion to amend or to vacate its order denying removal, being held in abeyance until we dispose of the petition for a writ of mandamus, the administrator may appeal the order of the circuit court. See Ex parte Kelly, 243 Ala. 184, 187, 8 So.2d 855, 857 (1942) (“The effect of the decree appealed from — remanding the administration of the estate to the probate court — was to put this branch of the case out of the circuit court, and was such final decree as will support the appeal.”). Thus, in the context of the facts of this case, the administrator has another adequate remedy.

TV. Conclusion

Because the administrator fails to demonstrate a clear legal right to a stay in the probate court by the mere filing of a petition for removal pursuant to § 12-11-41 and because the administrator has another available remedy if the circuit court fails to grant the petition for removal upon its being filed with the necessary statutory averments, the petition for a writ of mandamus is denied.

PETITION DENIED.

NABERS, C.J., and WOODALL, SMITH, and PARKER, JJ., concur.


author: HARWOOD, Justice.

text:
    MEDICAL ASSURANCE COMPANY, INC. v. ANESTHESIOLOGY & PAIN MEDICINE OF MONTGOMERY, P.C., et al.
    1050075.
    Supreme Court of Alabama.
    Oct. 27, 2006.

      Tabor R. Novak, Jr., and W. Evans Brit-tain of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellant.
    Joseph M. Brown, Jr., Gregory B. Breedlove, David G. Wirtes, Jr., and George M. Dent III of Cunningham, Bounds, Crowder, Brown & Breedlove, LLC, Mobile, for appellees.
   HARWOOD, Justice.

Medical Assurance Company, Inc. (“Medical Assurance”), appeals from the order of the Montgomery Circuit Court granting the motion for a summary judgment filed by Johnnie Timmons, as admin-istratrix of the estate of Brandi Timmons, deceased (“Timmons”), one of the defendants in the declaratory-judgment action filed by Medical Assurance. In that same order, the trial court denied the cross-motion for a summary judgment filed by Medical Assurance. The other defendants in the declaratory-judgment action were Anesthesiology & Pain Medicine of Montgomery, P.C. (“the P.C.”), Dr. William Ware, D.O., and Lil Hayes, a certified registered nurse anesthetist. Medical Assurance filed the declaratory-judgment action after a $13.7 million judgment was entered against the P.C., Dr. Ware, and Nurse Hayes in a medical-malpractice action brought by Timmons. (The P.C., Dr. Ware, and Nurse Hayes will sometimes be referred to collectively as “the defendants” both with respect to the medical-malpractice action and the declaratory-judgment action.)

On May 5, 2006, a majority of this Court reversed the $13.7 million judgment in the medical-malpractice action “in its entirety and remand[ed] the case for a new trial.” Ware v. Timmons, 954 So.2d 545, 561 (Ala.2006). On September 22, 2006, we overruled the application for rehearing and modified the opinion.

At all times pertinent to the medical-malpractice action, Medical Assurance had in effect its “medical professional liability policy” issued to the P.C. as the policyholder and “insured organization” and listing Dr. Ware and three other physicians as the “insured physicians” and Nurse Hayes and four other certified registered nurse anesthetists as the “insured paramedical employees.”

In the interval between the entry of the judgment in the medical-malpractice case and the reversal of that judgment by this Court, Medical Assurance filed its declaratory-judgment action seeking a declaration of the construction and application of the following feature of its policy, in light of the fact that the judgment was entered as to all defendants, without indicating the amount of each defendant’s liability:

“MEDICAL PROFESSIONAL LIABILITY POLICY INSURED ORGANIZATION SHARED LIMIT ENDORSEMENT
“This endorsement amends the Professional Liability Coverage Part of the policy.
“In consideration of the fact that the insured organization has been included as an insured at no premium charge, the insured organization shall not have its own limit of liability, but shall share in the limits of liability of the insured physicians. Any damages paid on behalf of the insured organization (whether by reason of a claim or suit against (1) the insured organization, (2) any other covered employee, or (B) any insured physician on account of liability arising by reason of his status as a member, partner, officer, director or shareholder of the insured organization) shall be applied against the limits of liability applicable to the insured physicians, in such order and manner as we deem appropriate.
“If damages are awarded, or a settlement is made with our consent, against the insured organization and one or more insured physicians, the total limit of liability available to the insured organization and such insured physicians shall not exceed the limit of liability then available under the policy to such insured physicians. If damages are awarded, or a settlement is made with our consent, against the insured organization, but not against any insured physicians, the limit of liability available to the insured organization shall equal the average of the limits of liability then available under the policy to all insured physicians.

(Hereinafter the “shared limit endorsement.”)

The policy afforded coverage to each of the insured physicians in the amount of $1 million for “each medical incident” and afforded coverage to each of the insured paramedical employees in the amount of $100,000 for each such incident.

Medical Assurance contended in the declaratory-judgment action that its coverage obligation for the $13.7 million judgment was $1.1 million, representing the $1 million coverage available to Dr. Ware, and shared in by the P.C., and the $100,000 coverage available to Nurse Hayes. Tim-mons argued that the total amount of Medical Assurance’s coverage for the judgment was actually $4.1 million, because the judgment was against the insured organization and an insured physician, and the limit of liability available to the P.C. for that type of damages award was the limit of liability coverage available under the policy to “the insured physicians,” and because there were four physicians insured the coverage for the physicians aggregated $4 million.

In its order entering the summary judgment in favor of Timmons and denying Medical Assurance’s motion for a summary judgment, the trial court held that the shared limit endorsement was at least ambiguous as between those two constructions but was due to be construed against Medical Assurance and the amount of coverage available to the P.C. for the judgment was $4 million. Thus, the trial court held, the total obligation of Medical Assurance for the judgment was $4.1 million.

Because that judgment has now been reversed and the case remanded for a new trial, however, the declaratory-judgment action has become moot; consequently, this appeal must be dismissed. Our reasoning in that regard is as follows: Upon a retrial, the jury will render one of eight possible verdicts (assuming it reaches a verdict), as follows:

1. A verdict for all three defendants;
2. A verdict against all three defendants;
3. A verdict against the P.C. and Dr. Ware;
4. A verdict against the P.C. and Nurse Hayes;
5. A verdict against only the P.C.;
6. A verdict against Dr. Ware and Nurse Hayes;
7. A verdict against only Dr. Ware; or

8. A verdict against only Nurse Hayes. The amount of the verdict may be $1 million or less, the amount of coverage undisputably available to the P.C. if the verdict is against only it or against it and Nurse Hayes (in which latter event another $100,000 in coverage would be available to be applied against the judgment).

Under verdict scenarios 1 and 4 through 8, there would be no issue as to the amount of coverage available under the policy. Only if damages are awarded against both the P.C. and Dr. Ware, as possible under verdict scenarios 2 and 3, would the coverage dispute presented by the declaratory-judgment action resurface.

“The Declaratory Judgment Act, §§ 6-6-220 through -232, Ala.Code 1975, ‘does not “ ‘empower courts to ... give advisory opinions, however convenient it might be to have these questions decided for the government of future cases.’ ” ’ Bruner v. Geneva County Forestry Dep’t, 865 So.2d 1167, 1175 (Ala.2003) (quoting Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 944 (Ala.1994) (quoting in turn Town of Warrior v. Blaylock, 275 Ala. 113, 114, 152 So.2d 661, 662 (1963))) (emphasis added in Stamps). This Court has emphasized that declaratory-judgment actions must ‘settle a “bona fide justiciable controversy.” ’ Baldwin County v. Bay Minette, 854 So.2d 42, 45 (Ala.2003) (quoting Gulf South Conference v. Boyd, 369 So.2d 553, 557 (Ala.1979)). The controversy must be ‘ “definite and concrete,’” must be ‘“real and substantial,” ’ and must seek relief by asserting a claim opposed to the interest of another party ‘“upon a state of facts which must have accrued.” ’ Baldwin County, 854 So.2d at 45 (quoting Copeland v. Jefferson County, 284 Ala. 558, 561, 226 So.2d 385, 387 (1969)). ‘“Declaratory judgment proceedings will not lie for an ‘anticipated controversy.’ ” ’ Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002) (quoting City of Dothan v. Eighty-Four West, Inc., 738 So.2d 903, 908 (Ala.Civ. App.1999)). Thus, if a declaratory judgment would not terminate any uncertainty or controversy, the court should not enter such a judgment. Bruner, 865 So.2d at 1175.
“ ‘ “[Jjusticiability is jurisdictional,” Ex parte State ex rel. James, 711 So.2d [952,] 960 n. 2 (Ala.1998); hence, if necessary, “this Court is duty bound to notice ex mero motu the absence of subject matter jurisdiction.” ’ Baldwin County, 854 So.2d at 45 (quoting Stamps, 642 So.2d at 945 n. 2).”

Bedsole v. Goodloe, 912 So.2d 508, 518 (Ala.2005).

“A justiciable controversy is a prerequisite to this Court’s subject-matter jurisdiction. Ex parte James, 836 So.2d 813, 825 (Ala.2002). A case is justiciable when the party ‘ “has been injured in fact.” ’ Kid’s Care, Inc. v. Alabama Dep’t of Human Res., 843 So.2d 164, 166 (Ala.2002) (quoting State v. 2018 Rainbow Drive, 740 So.2d 1025, 1027 (Ala.1999)). Moreover, a justiciable controversy requires the parties to seek remedies from having sustained damage as opposed to seeking advice from the Court. Siegelman v. Alabama Ass’n of Sch. Bds., 819 So.2d 568, 576 (Ala.2001). See also State ex rel. Baxley v. Johnson, 293 Ala. 69, 75, 300 So.2d 106, 111 (1974).”

Birmingham Bd. of Educ. v. Boyd, 877 So.2d 592, 594-95 (Ala.2003).

“A number of principles applicable to this dispute were articulated long ago:
“ ‘The necessary requisite to appellate jurisdiction is the existence of an actual controversy; therefore it is not within the province of this court to decide abstract or hypothetical questions, which are disconnected from the gravity of actual relief....
“ ‘The general rule is, if pending an appeal, an event occurs which renders it impossible for the appellate court to grant any relief, the appeal may be dismissed. There are many instances in which such condition may arise.... The condition may also arise from the act of the court a quo, that is to say, from some order or judgment in the case pending the appeal, which is made by the court, which renders the determination of the questions presented by the appeal unnecessary. Paris Electric Light[ & Ry.J Co. v. Martin (Tex.Civ.App.) 31 S.W. 243; 2 Cent. Dig. Appeal and Error, § 71 et seq.’ ”

Siegelman v. Alabama Ass’n of Sch. Bds., 819 So.2d 568, 575-76 (Ala.2001) (quoting Caldwell v. Loveless, 17 Ala.App. 381, 382, 85 So. 307, 307-08 (1920)) (emphasis added in Siegelman).

“ ‘The general rule is that if, pending an appeal, an event occurs that makes determination of the case unnecessary, the appeal will be dismissed....’ In re Involuntary Commitment of Skelton, 777 So.2d 148, 149 (Ala.Civ.App. 2000).... See State ex rel. Eagerton v. Corwin, 359 So.2d 767, 769 (Ala.1977) (‘A case is moot when there is no real controversy and it seeks to determine an abstract question which does not rest on existing facts or rights.’).”

Haley v. Barbour County, 885 So.2d 783, 787-88 (Ala.2004). See also Morris v. Laster, 821 So.2d 923, 925 (Ala.2001) (reversing a judgment against the insured and dismissing as moot the separate appeal by the insured’s liability-insurance carrier relating to its coverage obligations).

The intervening event of the reversal of the judgment in the medical-malpractice action has thus rendered moot the issue of the uncertainty about the amount of coverage that might be available to the P.C. in the event damages are awarded against it on retrial. Uncertainty in that regard will arise again only if one of two of the eight possible verdict scenarios occurs. Thus, the issue presently represents only a hypothetical or abstract question — only an anticipated controversy. The reversal of the previously entered judgment involving the P.C. renders unnecessary a determination of the amount of coverage that might be available from Medical Assurance to the P.C. in the event a verdict exceeding $1 million is returned against both it and Dr. Ware, however convenient it might be for the parties to have that question answered in advance of that eventuality. As we explained in Universal Underwriters Insurance Co. v. East Central Alabama Ford-Mercury, Inc., 574 So.2d 716, 723 (Ala.1990), and Mutual Assurance, Inc. v. Chancey, 781 So.2d 172, 175 (Ala.2000), Medical Assurance will not be barred from litigating any coverage issue that might arise with respect to a verdict rendered on retrial, after the resolution of the underlying claims against its insureds.

Accordingly, this appeal is dismissed.

APPEAL DISMISSED.

SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

NABERS, C.J., recuses himself.


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

text:
    Linda COMBS v. Harold WADE, in his capacity as Bevill State Community College President.
    2031151.
    Court of Civil Appeals of Alabama.
    June 30, 2005.

      Gayle H. Gear, Birmingham, for appellant.
    William D. Jones III and Shayana Boyd Davis of Johnston Barton Proctor & Powell, LLP, Birmingham, for appellee.
   CRAWLEY, Presiding Judge.

Linda Combs appeals a judgment of the Walker Circuit Court affirming the decision of a Fair Dismissal Act panel to uphold the termination of her employment as an instructor at Bevill State Community College (“BSCC”). We reverse.

BSCC is a postsecondary educational institution funded in part by the State of Alabama Special Education Trust Fund (“the SETF”). Its main campus is in Su-miton, Alabama, and it has branch campuses in Hamilton, Fayette, and Jasper, Alabama. Dr. Harold Wade has been the president of BSCC for 30 years. Although Dr. Harold Wade is the nominal party to this appeal, but was sued in his official capacity as the president of BSCC, BSCC is, in effect, a party. See Haley v. Barbour County, 885 So.2d 788, 788 (Ala.2004)(stating that “claims against state officers in their official capacity are ‘functionally equivalent’ to claims against the entity they represent”). Therefore, we will refer, throughout this opinion, to the arguments of Wade or BSCC interchangeably.

Before the termination of her employment, Linda Combs had been a child-development instructor at BSCC for 11 years. Each term, she had taught 3 or 4 child-development courses — 9 to 12 credit hours — on the Sumiton campus. She had, at times, taught child-development classes on the Jasper campus. On occasion, she had also taught a developmental English class in addition to her child-development classes. For the terms during which Combs taught developmental English, her teaching load was 15 credit hours.

In the early spring of 2001, the Governor of Alabama officially declared the SETF in proration, with higher education scheduled to receive a 6.2% reduction in funding from the amount originally allocated for that fiscal year. President Wade informed all BSCC employees that, if pro-ration remained at the level of 6.2% to 8%, the community college would be able to deal with the reduced funding, without dismissing any personnel, by implementing a variety of cost-cutting measures. Later in the spring, however, President Wade was notified that higher education, rather than the kindergarten through twelfth-grade system, would experience the brunt of reduced education funding and that pro-ration for BSCC could reach the level of 11.8%.

On May 1, 2001, President Wade notified Combs by letter that, because of pro-ration and its impact on BSCC’s budget, he intended to terminate Combs’s employment. President Wade also informed Combs of the procedures under the Fair Dismissal Act (“the FDA”), § 36-26-100 et seq., Ala.Code 1975, by which she could contest the termination. Combs requested a pretermination hearing, and, following that hearing on June 6, Wade informed her on June 8 that her employment was terminated. Combs requested and was provided with an FDA hearing before a three-member employee-review panel as provided for in § 36-26-105, Ala.Code 1975.

At the FDA hearing beginning on October 12, 2001, President Wade testified that when proration was first announced, he instructed his deans and other administrators to begin cost-cutting measures. BSCC decreased travel budgets, discontinued renewal and renovation projects that had been planned, reduced the purchase of materials and supplies, and instituted a hiring freeze. BSCC Dean of Finance Mark Ellard testified about the severe effect of proration on BSCC’s budgets. Combs’s expert witness, William Lischkoff, a certified public accountant, gave his opinion that the effect of proration was not as severe as Ellard had indicated. Among other things, Lischkoff pointed out that, during the time in which BSCC engaged in major cost-cutting measures and terminated the employment of Combs and other employees, BSCC also made a discretionary transfer of $1 million to the “unex-pended plant fund,” a reserve fund for facilities maintenance. On cross-examination, Lischkoff acknowledged, however, that whether to save funds for maintenance of aging facilities or to spend funds on employee salaries was a “management call” within President Wade’s discretion.

In the late spring of 2001, when President Wade was informed that proration could reach the level of 11.8%, he concluded that some reduction in personnel would be unavoidable. He asked his associate deans and administrators to review BSCC’s existing instructional programs to determine how personnel reductions could be made in a manner that would be minimally disruptive to students. President Wade testified that he and his administrators focused on eliminating probationary rather than nonprobationary employees and part-time personnel rather than full-time personnel because, he said, BSCC “could make adjustments by asking ... full-time people to take on more responsibility and that would allow [BSCC] to make some cost-saving steps with part-time [personnel].”

Dr. Camilla Benton, the academic dean on the BSCC Jasper campus, testified that she recommended to President Wade that BSCC consolidate the child-development programs at the Sumiton and Jasper campuses, which were only 15 miles apart. Combs was then teaching several child-development classes in Sumiton. Valerie Vann, a full-time employee who had been with BSCC less than three years, was teaching one child-development class in Jasper. In addition, Vann had the following administrative responsibilities: she was the director of continuing education, the manager of a USDA food program, the coordinator of a summer youth program, the supervisor of a child-care facility, the director of a paralegal program, and a dormitory resident manager. Vann, along with all other probationary employees, received a nonrenewal letter from President Wade on April 1, 2001; Combs received a termination letter on May 1, 2001. -

By July 2001, President Wade had been notified that proration of BSCC’s funding would be returned to the 6.2% level. At that time, a number of employees, including probationary employees, were called back to work. Dean Benton recommended to President Wade that Vann be called back and offered an employment contract for the coming year. President Wade accepted Dean Benton’s recommendation and reemployed Vann, Dean Benton stated that Vann was rehired for reasons other than her ability to teach child-development courses. She said that Vann was needed as an administrator. Dean Benton explained that Vann could be required— without much, if any, increase in pay — to teach the child-development courses that Combs .had previously taught. President Wade testified that some employees, including Combs, were not rehired because he was concerned that proration might extend beyond the current fiscal year.

Both President Wade and Dean Benton testified that the “reduction-in-force” policy contained within the BSCC personnel handbook was not followed with respect to any of the personnel reductions during proration. Specifically, President Wade stated that the reduction-in-force policy did not apply to Combs because Combs was a part-time employee and that policy applied only to full-time employees. The record contains the contract, labeled

“Bevill State Community College Contract of Employment Full Time”

that Combs signed for the 2000-2001 school term. Combs testified that she was paid as a part-time instructor on Schedule Dl, Rank 1A, Step 08, earning $18,779, one-half the pay of a full-time instructor. She testified that she had asked her supervisor, Dr. James Wade, Dean Benton’s predecessor, to change her to full-time status because she was putting in the hours necessary to be s full-time .instructor, but such a change never occurred.

Combs testified that she has a bachelor’s degree in elementary education and a master’s degree in early childhood education. She was awarded both degrees by the University of Alabama in Birmingham. She worked for three to five years as an administrator for the engineering department at the Auburn University extension center in Birmingham. Then she taught in public and private elementary schools in Walker County “off and on” for 10 years before she was hired in 1990 as a child-development instructor at BSCC. Combs introduced documentary evidence indicating that Vann had a master’s degree in elementary education but no experience or degree — and, in fact, had taken only one course — in early childhood education.

Combs testified that when she was hired by BSCC, the community college had no child-development curriculum. She explained that she had built the program from the ground up, by visiting other colleges to study their programs, by attending workshops, and by recruiting students who worked at local day-care centers to convince them of the value of an Associate of Arts certificate. Combs testified that she taught classes at night and on Saturdays to accommodate her students’ work schedules. In addition, she said that she came back early from a medical leave after she broke her leg and hip because she knew that her students needed her courses to finish the child-development program. In the summer of 2001, after President Wade terminated her employment, Combs taught as an adjunct instructor in order to enable her students to graduate. Witnesses for BSCC acknowledged that the termination of Combs’s employment was not based on poor job performance; they testified that she had been a very good instructor and they acknowledged that her duties required more than 20 hours — often 40 or more hours — -of work each week.

Following the FDA hearing, two members of the panel voted to uphold President Wade’s termination of Combs’s employment, stating their findings and conclusions in a written opinion on June 25, 2002. That opinion states, in pertinent part:

“After hearing testimony, considering numerous documents offered into evidence, and the arguments of the parties, the majority of the panel members find:
“1) Proration of the [SETF] was declared by the Governor in the early part of 2001. The resultant loss of funding for [BSCC] was sufficient to justify its President, Dr. Harold Wade, to search for ways of cutting college expenditures to meet the funding loss.
“2) The decisions of Dr. Wade, as to what personnel or what programs to eliminate were decisions within his discretion as President to make. The evidence before the panel demonstrated no abuse of that discretion.
“3) The employee has raised no claim that her termination was the result of political or personal reasons on the part of the President or any administrator who may have recommended her termination. Therefore, the panel finds that the termination was not for political or personal reasons and was not arbitrary or unjust.
“Ms. Combs has raised an issue related to the retention by [BSCC] of a probationary employee at a branch campus. [BSCC] issued a nonrenewal of contract notice to a Ms. Valerie Vann who worked as an administrator at [BSCC’s] Jasper campus in April of 2001. Ms. Vann’s nonrenewal notice was issued before Ms. Combs was notified of her proposed termination as a part-time child care instructor.
“Ms. Combs testified that she was not qualified for the administrative job that Ms. Vann had held at Jasper. Neither Combs nor Vann taught child care at the Jasper campus as that one class was taught by an adjunct instructor.
“During the summer of 2001, Dr. Wade accepted the recommendation of his Dean at the Jasper campus to reemploy Ms. Vann. That Dean partially convinced Dr. Wade of the wisdom of reemploying Ms. Vann by pointing out [that Vann] could, in addition to her administrative duties, teach the one child care class offered at Jasper that had been taught by the adjunct instructor.
“The majority of the panel finds that [BSCC] did not retain a probationary child care teacher while terminating the nonprobationary Linda Combs. Instead, [BSCC] rehired/retained a probationary administrator whose position Ms. Combs was not qualified to hold, and then incidentally assigned the teaching of one class at the Jasper branch to that person.
“Finally, the panel addresses the evidence concerning the financial impact proration has had on [BSCC]. Combs protests that there is still money available with which the college could cover her salary and benefits.
“[BSCC] does not assert that pro-ration has had a devastating effect on the college. [BSCC’s] evidence demonstrated that there were crucial needs that a college must plan for if it hopes to avoid contingencies that would devastate its finances. The average age of buildings at the various [BSCC] campuses is thirty years. The President testified that he must have funding to cover the inevitable major repairs to these facilities if [BSCC] is to insure safe and comfortable classrooms for its students.
“The panel simply finds that it is the prerogative of a college president to plan for such contingencies; that the amount set aside by Dr. Wade for such use was reasonable and prudent; and that a college administrator is under no obligation to wait until the college, whose financial health is his/her responsibility, is in a desperate condition before he/she can cut staff and programs.
“For the above reasons, the undersigned majority of this panel votes to uphold the termination of Ms. Linda Combs.”

One member of the panel dissented from the majority decision, with a written opinion on July 8, 2002. The dissenting opinion states, in pertinent part:

“1) As President of [BSCC], Dr. Harold Wade’s decision to dismiss Ms. Linda Combs was because of financial reasons, specifically proration. After hearing the testimony of the witnesses and considering financial documents, the loss of funding for [BSCC] because of proration was not sufficient to justify Ms. Combs’s termination. Testimony by the expert witness for Ms. Combs and the school budgets that were introduced into evidence showed that pro-ration did not have an effect on [BSCC’s] funding for salaries and benefits of employees.
“2) The decision of Dr. Wade to terminate Ms. Linda Combs as a childcare instructor was arbitrary and unjust. His action to terminate Ms. Combs was unreasonable because he released her from employment before all the facts were known regarding proration.
“Sufficient evidence was introduced that President Wade was unjust in terminating Ms. Combs because of pro-ration. Originally the Governor declared proration in early 2001, and the level set for higher education was 6.5%. At that time President Wade sent a letter to all employees that stated with proration at it current level, that no layoffs would occur. At a later date, pro-ration was increased for higher education by over 11%, but was later reduced to 6.5% by mid-July, 2001 by a Supreme Court decision. Ms. Combs received a termination letter in ... May 2001 but did not receive a letter repealing the decision once proration was again at the 6.5% level, which was what it was earlier when President Wade stated no lay-offs would occur. Other employees, however, were called back to work, including probationary employees. For the record, Ms. Combs was a non-probationary employee. Also, all community colleges received a bond issue, which lowered proration to 3.76%. The college budgets that would have affected this termination decision by the President were entered into evidence and the school finance director and an expert witness called by Ms. Combs testified. Based on the above-mentioned documents and the testimony of both witnesses, it was proven that there was enough money on hand within the budget to not justify the decision of the President to terminate Ms. Combs.
“The majority opinion leads one to believe that because the employee that took over the childcare program once Ms. Combs was terminated was a probationary administrator, then probationary status does not matter. I completely dissent from this opinion. Both Ms. Combs and the probationary employee, Ms. [Valerie] Vann were instructors. President Wade made the decision to retain a probationary instructor over a nonprobationary instructor, which is against standard practice in reduction-in-force policies statewide. Ms. Camille Benton, who is an administrator at [BSCC] stated that other current administrators could have absorbed the additional administrative duties held by the probationary employee, Ms. [Valerie] Vann. President Wade did not take this into consideration in terminating the tenured employee, Ms. Linda Combs.
“For the above stated reasons, I dissent from the majority opinion.”

On July 25, 2002, Combs filed in the Walker Circuit Court a petition for review of the panel decision. Both parties moved for a summary judgment in the circuit court. After reviewing the record of the FDA panel hearing, as well as the briefs and arguments of the parties, the circuit court granted a summary judgment in favor of President Wade. The court’s judgment states, in pertinent part:

“It is without question that [Combs] was a very capable and competent employee of [BSCC], and she did a very good job for the College, and this is undisputed, however the [panel] upheld the President’s decision to terminate [Combs] for the reason given of pro-ration, and there are no facts before this Court to show that the panel’s decision was not based on substantial evidence before it, nor to show the panel acted in an arbitrary manner, nor to show the panel denied [Combs] due process of law, nor that it failed to follow the procedure set out in the [FDA] (§ 36-26-106 Code of Alabama).”

Standard of Review

In an FDA case that has been appealed to a circuit court, this court employs the following standard of review:

“In reviewing the decision of a hearing panel, this court’s standard of review is the same as that of the circuit court’s. Colbert County Bd. of Educ. v. Johnson, 652 So.2d 274 (Ala.Civ.App.1994). Our review is limited to questions of whether there was substantial evidence to support the panel’s decision, whether the panel’s findings were contrary to the uncontradicted evidence, and whether the panel improperly applied the law to the findings. Jefferson County Bd. of Educ. v. Moore, 706 So.2d 1147 (Ala.1997).”

Bessemer State Tech. Coll. v. Hosea-Studdard, 851 So.2d 46, 51-52 (Ala.Civ.App. 2002).

“The standard of judicial review applied to rulings of administrative agencies differs from that applied to rulings of trial courts. An appellate court will affirm a ruling of a lower court if there is any valid reason to do so, even a reason not presented to — or rejected by — the lower court. When reviewing the decision of an administrative agency, however, an Alabama court will affirm only if the action and the stated basis for the action are correct.
‘[As this court is required to do,] the circuit court ... was .required to look to the Commissioner’s decision and the reasons she gave for denying reimbursement. Where such decision is shown to be arbitrary and capricious, no posthoc rationalizations or theories for denying reimbursement can correct it.’
“Alabama Medicaid Agency v. Beverly Enters., 521 So.2d 1329, 1333 (Ala.Civ. App.1987).”

Ex parte Beverly Enters.-Alabama, Inc., 812 So.2d 1189, 1195 (Ala.2001) (emphasis added) (some citations omitted).

I.

Combs contends that the panel’s decision to uphold the termination of her employment was not supported by substantial evidence and the panel’s findings were contrary to the uncontradicted evidence. To support those contentions, she points to what, she says, are three misstatements of the evidence in the panel’s majority opinion, namely: (1) that “Ms. Combs testified that she was not qualified for the administrative jobs that Ms. Vann had held at Jasper”; (2) that “[n]either Combs nor Vann taught child care at the Jasper campus”; and (3) that BSCC “did not retain a probationary child care teacher while terminating the nonprobationary Linda Combs. Instead, [BSCC] rehired/retained a probationary administrator whose position Ms. Combs was not qualified to hold, and then incidentally assigned the teaching of one class at the Jasper branch to that person.”

Combs is correct that the first statement listed above is a misstatement of the evidence. Combs did not testify that she was unqualified for the administrative jobs held by Vann. Dr. Camilla Benton testified that Combs did not have the qualifications or experience to handle the four or five administrative and supervisory positions that Vann was handling on the Jasper campus. In addition, President Wade testified that Combs had never done any administrative work at BSCC. Combs testified that, before she came to work at BSCC, she had three to five years’ experience as an administrator for the engineering department at the Auburn University extension center in Birmingham. The foregoing recitation of the evidence represents the only testimony regarding Combs’s administrative qualifications or experience. There was no evidence of what qualifications were necessary in order to perform Vann’s duties as an administrator. The issue whether Combs was qualified to handle Vann’s administrative duties, however, was immaterial. Combs did not complain that she was not offered Vann’s position as an administrator; she complained because Vann was given her (Combs’s) position as a child-development instructor. Thus, any error in the panel’s misstatement of the evidence on this point was harmless. See Rule 45, Ala. R.App. P.

The same cannot be said of the two other misstatements in the panel’s majority opinion to which Combs directs our attention. The statement that “[njeither Combs nor Vann taught child care at the Jasper campus” is plainly and palpably wrong. The evidence was undisputed that both Combs and Vann had taught child-development classes at the Jasper campus. The factual error in the second misstatement — that Vann was merely an administrator, and not a child-development instructor, on the Jasper campus — logically but erroneously led the panel majority to conclude, in the third statement of which Combs complains, that BSCC “did not retain a probationary child care teacher while terminating the nonprobationary Linda Combs. Instead, [BSCC] rehired/retained a probationary administrator whose position Ms. Combs was not qualified to hold, and then incidentally assigned the teaching of one class at the Jasper branch to that person.” As our supreme court stated in Ex parte Beverly Enterprises, 812 So.2d at 1195, “[w]hen reviewing the decision of an administrative agency ... an Alabama court will affirm only if the action and the stated basis for the action are correct.” A stated basis for the employee review panel’s decision to uphold the termination of Combs’s employment — that BSCC “did not retain a probationary child care teacher while terminating the nonprobationary Linda Combs”—was factually incorrect; therefore, “no post hoc rationalizations or theories for [upholding the termination of Combs’s employment] can correct it.” Alabama Medicaid Agency v. Beverly Enters., 521 So.2d 1329, 1333 (Ala.Civ.App.1987).

II.

Combs argues that the panel improperly applied the law to the findings by rejecting her arguments that BSCC was required to follow the reduction-in-force (“RIF”) and dismissal policies outlined in the BSCC personnel handbook and by concluding that the decision in Golden v. Alabama State Tenure Commission, 718 So.2d 73 (Ala.Civ.App.1998), was inapplicable to her. The RIF policy states:

“This policy applies to full-time employees of the College. It is the policy of [BSCC] that full-time employees may be separated from employment when the President declares a state of financial exigency which requires a significant reduction in the operating budget. This policy does not apply to summer contracts for faculty.
“When reduction in force is necessary for the welfare of the college, a decision as to the order of personnel releases will be based upon one or more of the following criteria:
“1. Whether or not an employee has obtained non-probationary status;
“2. Seniority within a job classification such as faculty, support staff and administration;
“3. Length of service within a job classification;
“4. Performance evaluation ratings; and
“5. Institutional requirements determined by the President.
“The above are not listed in any order of priority.
“Any personnel action taken pursuant to this policy shall be done in such a manner as to be consistent with the Alabama Fair Dismissal Act, other State and Federal laws as may apply, and any applicable rules of the State Board of Education.
“The college administration will make every effort to assist any released employee in finding other employment.
“Released employees may continue health, life, or other insurance for a period of time established by the Federal Consolidation Omnibus Budget Reconciliation Act (COBRA) of 1986.”

Combs argued at the panel hearing and in the circuit court that before terminating her employment on the basis of proration and then replacing her with Vann, a probationary teacher, the RIF policy required BSCC to consider her nonprobationary status and “applicable rules of the State Board of Education.” BSCC maintained, as it does on appeal, that it was not required to follow the RIF policy because that policy applied only to full-time employees and Combs was a part-time employee.

BSCC’s contention that Combs was not a full-time employee appears to be inconsistent with its considering that the termination of Combs’s employment implicated the FDA because the FDA applies only to “full-time” employees. The version of § 36-26-100, Ala.Code 1975, that was in effect at the time of the termination of Combs’s employment provided, in pertinent part:

“The term ‘employees,’ as used in this article, is deemed to mean and include all persons employed by ... two-year educational institutions under the control and auspices of the State Board of Education ... who are so employed as bus drivers, lunchroom or cafeteria workers, maids and janitors, custodians, maintenance personnel, secretaries and clerical assistants supervisors and all other persons not otherwise certified by the State Board of Education. Only full-time employees who are not otherwise covered by the state Merit System, the teacher tenure law, or other state statute at the time this article is adopted are intended to be covered by this article. Full-time employees include (a) adult bus drivers and (b) other employees whose duties require 20 or more hours in each normal working week of the school term, employing board holidays excepted. Substitute teachers and substitute employees are excluded from this article.”

(Emphasis added.) BSCC’s contention that Combs was not a full-time employee also appears to be inconsistent with its concession that Combs was a nonproba-tionary employee, because, for purposes of the FDA, in order to be a “nonprobation-ary” employee, one must first be an “employee,” and “[o]nly full-time employees ... are intended to be covered by” the FDA. See § 36-26-100, supra.

Evidently, BSCC considered Combs a full-time employee for purposes of being covered by the FDA, but a part-time employee for purposes of not being covered by its own RIF policy. Despite the confusion and uncertainty that might arise from such apparently inconsistent treatment, Combs makes no argument that, by considering her as full-time for one purpose, BSCC is estopped to assert that she is part-time for another purpose, and, therefore, we will not address the legal effect of the apparent inconsistency.

Combs argues that BSCC failed to follow its own dismissal policy, which, she claims, mandates that a nonprobationary teacher not be replaced by a probationary teacher. Under the heading “Dismissal,” the BSCC personnel handbook states:

“Dismissal of teachers and staff members, where necessary, will be done within the policies approved by the State Board of Education. A dismissal procedure similar to the one for tenured teachers will be utilized in terminations except the non-renewal of contract prior to commencement of the fourth academic year. Termination of personnel will be based on the Uniform Non-Discriminatory Employment Standards.”

(Emphasis added.) Citing Golden v. Alabama State Tenure Commission, supra, Combs insists that the panel improperly applied the law to the findings by concluding that it was permissible to replace her, a nonprobationary instructor, with Vann, a probationary instructor. In Golden, this court held that when the State Board of Education discontinued the automotive and small-engine repair program in the Department of Youth Services school district and canceled the tenured instructor’s contract on the basis of financial “good cause,” the Board was required to establish that it had not placed nontenured teachers in the same fields as those the instructor was qualified to teach. BSCC argued that the Golden decision is inapplicable to Combs because its holding was based on the law applicable to teachers who are covered by the Teacher Tenure Act (“TTA”), § 16-24-1 et seq., Ala.Code 1975, and, according to BSCC, Combs is not covered by the TTA.

At the panel hearing, BSCC cited Ex paite Athens State College, 795 So.2d 709 (Ala.2000), for the proposition that the TTA cannot be read in pari materia with the FDA. BSCC is correct that the Alabama Supreme Court stated, in Athens State College, that under the particular facts presented, the TTA was not useful in interpreting the FDA. The particular facts presented, however, were different from the facts presented in this case. In Athens State College, the terminated employee was a nonteacher. The court stated the issue to be decided as follows:

“This case presents the narrow question whether the Fair Dismissal Act requires that a nonprobationary, non-teacher employee, whose position is terminated on the basis of a ‘justifiable decrease in jobs in the system,’ be placed in another employment position currently held by a probationary, non-teacher employee, for which position the nonprobationary employee is ‘qualified’ but has never before held.”

795 So.2d at 712 (emphasis added). The issue Combs raises is whether State Board of Education policies with respect to tenured teachers — policies that are referenced in the dismissal policy outlined in BSCC’s personnel handbook — allow a non-probationary teacher whose position is terminated on the basis of decreased funding due to proration to be replaced by a probationary teacher.

BSCC concedes that Combs was a non-probationary instructor. Nevertheless, BSCC maintains that the employee-review panel correctly upheld the termination of Combs’s employment because the termination was based on a “good and just cause” — the impact of proration on BSCC’s budget.

Section 36-26-102, Ala.Code 1975, provides:

“Upon the completing by the employee of [a three-year] probationary period, said employee shall be deemed employed on a nonprobationary status and said employee’s employment shall thereafter not be terminated except for failure to perform his or her duties in a satisfactory manner, incompetency, neglect of duty, insubordination, immorality, justifiable decrease in jobs in the system, or other good and just causes; provided, however, such termination of employment shall not be made for political or personal reasons on the part of any party recommending or voting to approve said termination.”

In Ellenburg v. Hartselle City Board of Education, 349 So.2d 605, 609-10 (Ala.Civ.App.l977)(quoting 68 Am.Jur.2d Schools § 183 (1973)) (quoted with approval in Laidlaw Transit, Inc. v. Alabama Educ. Ass’n, 769 So.2d 872, 884 (Ala.2000), and Ex parte Alabama State Tenure Commission, 555 So.2d 1071, 1074 (Ala.1989)), this court defined “good cause” as follows:

“ ‘ “[G]ood cause” ... is by no means limited to some form of inefficiency or misconduct on the part of the teacher dismissed, but includes any ground put forward by a school committee in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the committee’s task of building up and maintaining an efficient school system. Limited only by the statutory provision that they must be good and just causes, the jurisdiction and discretion to determine what these causes may be rests in the hands of the school authorities.’ ”

A decision that proration is a “good and just cause” for termination of an employee’s employment subject to the FDA is not per se erroneous. However, if the employee is a nonprobationary teacher, as BSCC conceded that Combs was, then something more than “good cause” to dismiss her is required by BSCC’s own dismissal policy referencing “policies approved by the State Board of Education” and “[a] dismissal procedure similar to the one for tenured teachers.” See Golden v. Alabama State Tenure Comm’n, supra.

From the following factually erroneous conclusion in the majority opinion of the employee-review panel that BSCC

“did not retain a probationary child care teacher while terminating the nonproba-tionary Linda Combs. Instead, [BSCC] rehired/retained a probationary administrator whose position Ms. Combs was not qualified to hold, and then incidentally assigned the teaching of one class at the Jasper branch to that person,”

it is apparent that the panel implicitly acknowledged that replacing a nonproba-tionary teacher with a probationary teacher was problematic. Thus, the panel took pains to explain that BSCC had not replaced a nonprobationary teacher with a probationary teacher; instead, the panel stated, BSCC had replaced a nonproba-tionary teacher with a probationary administrator. The opinion of the dissenting member of the employee-review panel pointed out the error of the majority’s conclusion that Vann was not a probationary teacher but a probationary administrator who was only incidentally assigned to teach a class for which Combs had been a nonprobationary teacher.

We reverse the judgment of the Walker Circuit Court and remand the cause with the following instructions: the circuit court shall remand the cause to the employee-review panel with instructions to redetermine the propriety of the termination of Combs’s employment in light of the dismissal policy contained in the BSCC personnel handbook.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

MURDOCK, J., dissents, with writing.

BRYAN, Judge,

concurring in the result.

Ex parte Beverly Enterprises, 812 So.2d 1189, 1195 (Ala.2001), holds that an appellate court may affirm a correct action of an administrative agency only if the stated basis for the action is correct. While I question the soundness of that holding, it is the law of this state until the supreme court changes it. Therefore, I concur in the result in this case.

MURDOCK, Judge,

dissenting.

Respectfully, I must dissent. There is substantial evidence to support the employee-review panel’s decision. It is not arbitrary or capricious. Moreover, I cannot conclude from the record before us that the employee-review panel failed to apply the reduction-in-force policy found within the BSCC’s personnel handbook. That reduction-in-force policy states, among other things, that, when there is “a state of financial exigency which requires a significant reduction in the operating budget,” in turn necessitating a reduction in force, “a decision as to the order of personnel releases will be based upon one or more of the following criteria: ... (5) institutional requirements determined by the President.” By rehiring Vann rather than Combs, BSCC made a rational decision in the face of budget cuts (cuts that the president of BSCC thought were likely to be repeated in succeeding years) to hire an employee whom it reasonably concluded could do two jobs — administrator and child-development teacher — for the price of one. More precisely, BSCC actually prioritized Vann’s administrative position over that of the child-development teacher, concluding that the ability of Vann to teach a child-development course at the Jasper campus was only incidental to her rehiring as a much needed administrator.

As to the paragraph from the BSCC personnel handbook entitled “Dismissal,” the main opinion does not explain what more this provision required the panel to factor into its decision. What “policies,” as that term is used in the “Dismissal” paragraph — other than those in the reduction-in-force provisions of the BSCC personnel handbook — did the panel wrongfully fail to apply? I do not know and I am concerned that, on remand, the panel also will not know. (Further, the second sentence of that paragraph, requiring “a dismissal procedure” similar to the one for tenured teachers, would not appear to impose any additional substantive criteria.)

The main opinion concedes that pro-ration would be good cause for the termination of the employment of a nonpro-bationary employee such as Combs. I cannot discern what else was required in this case to justify BSCC’s decision to eliminate Combs’s position. I find no error as a matter of law on the part of either the employee-review panel or the circuit court, each of which, in turn, upheld what was a rational and legal decision on the part of BSCC.

      . The Legislature amended § 36-26-105, Ala. Code 1975, effective July 1, 2004, to bypass circuit court review of FDA cases and to provide for direct, discretionary review of FDA panel decisions by the Alabama Court of Civil Appeals. The Legislature further provided that the appellate review of such discretionary appeals was subject to the following standard of review:
      "The 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 [the FDA].”
      § 36-26-104(b). Because the decision of the FDA panel was rendered in this case on June 25, 2002, before the effective date of the amendment, we apply the standard of review previously applicable.

      . Section 36-26-100 was amended, effective April 26, 2002, to cover “full-time instructors as defined by the State Board of Education ” at "two-year educational institutions under the control and auspices of the State Board of Education.” (Emphasis added.) See Ala. Acts 2002, Act No. 508, § 1. The retroactivity of § 36-26-100, as amended, was not argued to the panel, to the circuit court, or to this court on appeal. We will, therefore, not address that issue.
      Whether the decision of our supreme court in Ex parte McLeod, 841 So.2d 260, 264 (Ala.2001) (released on June 22, 2001), is applicable to Combs was also not argued to the panel, to the circuit court, or to this court on appeal. Ex parte McLeod decided that whether a community-college instructor had achieved full-time nonprobationary status was determined by reference to the FDA. The McLeod decision, however, was based on the law-of-the-case doctrine and it does not stand for the blanket proposition that the FDA governs whether a community-college instructor is full-time or nonprobationary.

      . Thus, I find substantial support in the record for the proposition that what happened in this case was simply that "BSCC rehired/retained a probationary administrator whose position Ms. Combs was not qualified to hold, and then incidentally assigned the teaching of one class at the Jasper branch to that person.” The main opinion recounts substantial evidence from which the employee-review panel could have concluded that, at the least, Combs was better qualified or experienced "to handle the four or five administrative and supervisory positions that Vann was handling on the Jasper campus.”