text:
    PHASE II, LLC, and Patricia Moore v. CITY OF HUNTSVILLE.
    1050097.
    Supreme Court of Alabama.
    Aug. 25, 2006.

      Josh 0. Kelley III, Huntsville, for appellants.
    Michael L. Fees and C. Gregory Burgess of Fees & Burgess, P.C., Huntsville, for appellee.
   SMITH, Justice.

The plaintiffs below, Phase II, LLG, and Patricia Moore (collectively “Phase II”), appeal from a judgment entered by the Madison Circuit Court in favor of the defendant, the City of Huntsville (“the City”), denying Phase II’s application for a class 4 lounge license (“the liquor license”). We affirm.

Facts and Procedural History

In October 2004, Moore submitted an application under the name Phase II to the City’s licensing review committee (“the committee”) for a liquor license for a nightclub. As required by the City of Huntsville Code of Ordinances, Moore certified that she had provided notice of the application to all “owners and occupants of residences, businesses, and other property within 500 feet.” Code of Ordinances § 3-174 (2003). ■ However, the residents of Wyndham Park, -a senior-citizen retirement community, which includes a nursing home, were not included among those to receive the notice. Personnel with the Huntsville Police Department, rather than Moore, notified Wyndham Park that Phase II had applied for a liquor license. In February 2005, the committee denied Phase II’s application for the- liquor license because of concern over the potential negative impact of the nightclub on public safety.

On February 24, 2005, Phase II appealed the committee’s denial of the liquor license to the Huntsville City Council (“the city council”). The City’s Code of Ordinances provides that on an appeal from the committee’s denial of an application for a liquor license, the city council is not bound solely by the factors considered by the committee. Code of Ordinances § 3-177(e) (2003). Rather, the city council shall consider other factors, including “location of the premises.” Id.

At the public hearing held by the city council on the application, personnel from the Huntsville Police Department reported a direct correlation between the capacity of a class 4 liquor lounge and the number of reported calls for police assistance: lounges with a capacity of 300 or more persons have an average of 15.7 calls per month, while lounges with a capacity of fewer than 300 persons have an average of 6.4 calls per month. The slated capacity of the nightclub for which Phase II is seeking a liquor license is 625 persons. In addition, Wyndham Park residents, their families, and a representative from Victory Tabernacle United Pentecostal Church (“VTUP Church”) expressed concern over increased traffic from the nightclub and neighborhood safety. The city council voted to deny Phase II’s liquor-license application.

On March 8, 2005, Phase II filed in the Madison Circuit Court a petition seeking both temporary and permanent injunctive relief and alleging that the city council’s denial of the liquor-license application was a violation of due process and was arbitrary, capricious, and unwarranted under the circumstances. Phase II also asked the trial court to enjoin the City from denying or interfering with the approval of the liquor-license application. The City was the sole named defendant.

Subsequently, the City removed the case to the United States District Court for the Northern District of Alabama on the basis of federal-question jurisdiction. The City argued that Phase IPs allegations implicated federal due process and equal protection. However, the United States District Court dismissed all of the federal claims with prejudice and remanded the case to the Madison Circuit Court. The only remaining cause of action was a request for judicial review, pursuant to Ala.Code 1975, § 28-1-6, of the liquor-license denial.

On May 6, 2005, the City moved to dismiss the action in the Madison Circuit Court for failure to state a claim upon which relief could be granted. The City argued that because Huntsville is a Class 3 municipality, § 28-1-6, which applies only to Class 1 and Class 2 municipalities, does not permit judicial review of the denial of a liquor license. Class 3 municipalities are those having populations of “not less than 100,000 and not more than 174,999 inhabitants” based on the 1970 federal decennial census. Opinion of the Justices No. 361, 693 So.2d 21, 22 (Ala.1997); Ala.Code 1975, § 11 — 40—12(a). The population of Huntsville in 1970 was 139,282, placing the City squarely within the Class 3 municipality category. Therefore, § 28-1-6 is not applicable in the present case.

Phase II responded to the City’s motion to dismiss and argued that Opinion of the Justices No. 361, on which the City relied, was “not binding” on the court. Further, Phase II maintained that based on current population totals the City should be categorized as either a Class 1 or a Class 2 municipality.

On May 23, 2005, Phase II filed an amended complaint, reasserting its original petition and further arguing that the proceedings in the trial court should be de novo. In addition, Phase II alleged that the City’s acts and/or omissions in denying Phase II a liquor license constituted negligence or wantonness.

On June 8, 2005, the City filed a second motion to dismiss, again arguing that the case was due to be dismissed because judicial review under § 28-1-6 was improper and all federal claims had been dismissed upon remand to the circuit court. Further, the City argued that the only available method of judicial review with regard to the denial of the liquor license by a Class 3 municipality was by a common-law writ of certiorari. Because Phase II failed to seek a common-law writ of certio-rari, the City maintained, the complaint failed to state a claim upon which relief could be granted and should be dismissed.

The City also argued that Phase II could not state a cause of action for negligence because it failed to cite any authority permitting an allegation of negligence relating to the denial of a liquor-license application. Regarding Phase IPs claim of wantonness, Ala.Code 1975, § 11-47-190, only permits actions based on the “neglect, carelessness, or unskillfulness” of the municipality’s agents or employees. The City contended that because the municipality is protected against wantonness claims, Phase IPs wantonness claim failed to state a claim upon which relief could be granted.

On July 14, 2005, the parties stipulated, and the Madison Circuit Court ordered, that the proper method of judicial review of the City’s denial of the liquor license was by way of a petition for a common-law writ of certiorari and that Phase IPs petition was to be decided based on the certified record presented to the city council. On September 28, 2005, the circuit court denied certiorari review and dismissed the action, finding that the evidence upon which the city council had based the denial of the liquor-license application was legally sufficient and that the decision to deny Phase IPs liquor-license application was not arbitrary and capricious but was a proper exercise of the city council’s authority. Phase II appeals.

Standard of Review

“In reviewing a municipal council’s exercise of its legislative discretion to approve or disapprove the issuance of a restaurant liquor license, this Court must apply an ‘arbitrary-and:capricious’ standard.” Ex parte Trussville City Council, 795 So.2d 725, 727 (Ala.2001).

“ ‘A determination is not “arbitrary” or “unreasonable” where there is a reasonable justification for its decision or where its determination is founded upon adequate principles or fixed standards. State Department of Pensions and Security v. Whitney, 359 So.2d 810 (Ala. Civ.App.1978)
“ ‘If reasonable minds may well be divided as to the wisdom of [the] administrative board’s actions, or there appears some reasonable basis for the classification made by the board, such action is conclusive and the court will not substitute its judgment for that of the administrative body.’ ”

City of Huntsville v. Smartt, 409 So.2d 1353, 1357-58 (Ala.1982) (quoting Hughes v. Jefferson County Bd. of Educ., 370 So.2d 1034,1037 (Ala.Civ.App.1979)).

Discussioy,

I.

To prove that a municipality’s decision to approve or to disapprove a liquor license is arbitrary and capricious, the burden is on the claimant to show that there is no reasonable justification supporting the municipality’s decision. City of Huntsville v. Smartt, 409 So.2d at 1357 (citing Department of Pensions & Sec. v. Whitney, 359 So.2d 810, 812 (Ala.Civ.App.1978)). On appeal, Phase II argues that the city council’s decision to deny Phase II’s application for the liquor license was arbitrary and capricious. According to Phase II, the complaints from Wyndham Park residents and statistics presented by the Huntsville Police Department did not provide a reasonable justification for the city council to deny the liquor license.

The City, on the other hand, argues that the city council’s denial of the liquor license was not arbitrary and capricious but was justified by ample evidence of the potential negative impact of the liquor license on the area in which the nightclub was to be located. See Ex parte Trussville City Council, 795 So.2d at 727 (stating that a presumed negative impact on the surrounding area is sufficient to support a finding that a city council did not act arbitrarily and capriciously in denying a liquor license). At the hearing before the city council, Wyndham Park residents, their families, and members of the staff of Wyndham Park testified that the proposed nightclub would result in increased traffic, compromised public safety, and limits on the residents’ freedom of movement. A representative of the VTUP Church expressed concern over the effect of the proposed nightclub on the church’s evening weekend services, the amount of increased traffic in the area, and the risk of drunk-driving incidents. The Huntsville Police Department also presented at the hearing statistics regarding calls of assistance from lounges with a similar capacity, based on “shots fired.”

This evidence is sufficient to support the trial court’s finding that the city council had not acted arbitrarily and capriciously in denying Phase II’s application for a liquor license. The city council properly considered the detrimental effects of increased traffic on the area of the proposed nightclub; the impact of the proposed nightclub on public safety; and the general welfare of area residents. The Huntsville Police Department testified that a liquor lounge would have a detrimental effect on police manpower, particularly on Friday and Saturday nights. The police department also testified that police calls from similar lounges typically occur after 2 a.m. and include complaints of loitering, fighting, littering, and gunfire. These police concerns, coupled with the testimony of both Wyndham Park residents and a representative of the VTUP Church, created more than reasonable justification for the city council's denial of the liquor-license application. Therefore, in light of these safety and traffic concerns, we conclude that the city council did not arbitrarily and capriciously deny Phase IPs liquor-license application.

II.

Phase II also devotes a significant portion of its brief to this Court arguing that the record supports an approval of Phase IPs liquor-license application. It is not within this Court’s scope of review to decide whether Phase II should have been granted the liquor license. Ex 'parte Trussville City Council, 795 So.2d at 728-29. An arbitrary and capricious standard of review does not permit the trial court or this Court to substitute its judgment for the judgment of the city council. Id. This Court has held that although the trial court may disagree with a municipality’s decision, the court may not “substitute its judgment for that of a legislative body vested with the power to make such decisions.” Pollard v. Unus Props., LLC, 902 So.2d 18, 29 (Ala.2004). Therefore, even if this Court believes Phase II should have been granted the liquor license, we cannot order the City to grant the liquor license unless there is evidence indicating that the city council acted arbitrarily and capriciously in its decision. Here, evidence of the potential negative impact of the liquor license on the area created a reasonable justification for the city council’s denial- of the application. Therefore, the city council did not act arbitrarily or capriciously in denying the liquor-license application.

Phase II also alleges that it has complied with all applicable laws, codes, and regulations. However, Alabama courts have expressly held that strict compliance with all statutory requirements for the issuance of a liquor license does not automatically entitle the applicant to the license. See Ex parte Trussville City Council, 795 So.2d at 728 (citing Potts v. Bennett, 487 So.2d 919, 922 (Ala.Civ.App.1985)). Rather, Alabama municipalities are accorded broad discretion when reviewing a liquor-license application. 795 So.2d at 728. A municipality exceeds this discretion only when the denial of the liquor license is shown to be arbitrary and capricious. 795 So.2d at 727. Therefore, even though Phase II complied with all applicable statutory requirements, the city council was within its authority to deny the application based on the potential negative impact of a nightclub on the surrounding area.

III.

Phase II also alleges that the city council’s decision to deny the liquor license was motivated by fear, scare tactics, and prejudice. Phase II asserts that the Huntsville Police Department’s visit to Wyndham Park was improper and was calculated to frighten residents regarding Phase II’s liquor-license application. Phase II’s contention is without merit. The City’s Code of Ordinances explicitly provides that the chief of police is required to conduct an investigation regarding all liquor-license applications. Code of Ordinances § 3-175 (2003). Thus, the Huntsville Police Department properly contacted the Wynd-ham Park residents regarding Phase II’s liquor-license application.

Likewise, Phase II argues that the statistics presented to the city council by the Huntsville Police Department created unsubstantiated and baseless fear among members of the city council. This argument too is without merit. The statistics, derived from police data involving similar liquor lounges, clearly indicated a direct correlation between the capacity of a lounge and the number of calls for police assistance from the lounge — the greater the capacity of the lounge, the greater the number of calls. Phase II alleges that'the statistics relied on by the city council were flawed; yet Phase II offers no explanation of how those statistics were in error, nor did it provide statistics or other documentation in support of its own position.

Finally, Phase II argues that it received disparate treatment compared to the other 32 class 4 licensed liquor lounges in the City. Phase II relies on a statement by an attorney for the owner of the property on which the nightclub was to be located that “there are at least 2 other senior citizens’ homes in Huntsville that are located in close proximity to lounge/ bars that serve alcohol.” (Phase II’s brief, pp. 27-28.) Phase II’s argument is not persuasive. First, Phase II presented no evidence indicating that-these “other senior - citizens’ homes” are comparable to Wyndham Park’s retirement community and its nursing home, nor does Phase II establish that the “lounge/bars” to which the attorney referred did not predate the presence of the “senior citizens’ homes.” Second, “ ‘a license to engage in the sale of intoxicants is merely a privilege with no element of property right or vested interest.’ ” Ott v. Everett, 420 So.2d 258, 261 (Ala.1982) (quoting Broughton v. Alabama Alcoholic Beverage Control Bd., 348 So.2d 1059, 1060 (Ala.Civ.App.1977)). The city council had broad discretion to grant or to deny Phase II’s liquor-license application, provided the city council had a reasonable basis for its decision. There is no evidence in the record indicating that Phase II was treated disparately or differently than any other liquor-license applicant.

Conclusion

The trial court’s finding that the city council did not act arbitrarily and capriciously in denying Phase II’s liquor-license application was supported by sufficient evidence; therefore, the trial court’s judgment is affirmed.

AFFIRMED.

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

      . Moore had previously applied to the committee for a liquor license in July 2004 under the name “Club Medallion.” Because of distance-restriction issues, the committee denied Moore’s application. Subsequently, the owner of the property on which the nightclub was to be located, Reliance Agency, Inc., re-subdivided the property to comply with the City's zoning ordinances. Moore incorporated under the name Phase II, LLC, and again applied for the liquor license.

      . There was apparently some confusion about whether Wyndham Park fell within the 500-foot notice provision. Phase II maintains that the door-to-door distance from the nightclub to Wyndham Park is 685 feet. The record indicates that the distance between the property lines of Wyndham Park and the nightclub is 350 feet. See note 4.

      . Alabama Code 1975, §§ 28-1-6 and -7, provide a statutory right of direct appeal from the denial of a liquor license by a Class 1, 2, or 4 municipality. However, no such right of appeal exists for the denial of a liquor license by a Class 3 municipality. Where there is no statutory right of direct appeal from a local government's decision to deny an application for a liquor license, the only proper method of judicial review is by the common-law writ of certiorari. Sanders v. City of Dothan, 642 So.2d 437, 440 (Ala.1994) (“'common-law certiorari is the appropriate method to have the courts determine the question as to whether a liquor license was revoked without cause where there is no prescribed method' " (quoting Southall v. Stricos Corp., 275 Ala. 156, 159, 153 So.2d 234, 237 (1963))).

      . It appears Phase II is arguing that the city council improperly considered comments of the Wyndham Park residents. Factually, this contention is incorrect. .Phase II maintains that Wyndham Park is outside of the 500-foot mandatory notice boundary, specifically arguing that the door-to-door distance from Wynd-ham Park to the proposed nightclub is 685 feet. However, the City’s Code of Ordinances states that notice shall be given "to owners and occupants of residences, businesses, and other property within 500 feet of the property to be licensed." Code of Ordinances § 3-174 (2003) (emphasis added). The record indicates that the distance between the property lines of Phase II and Wyndham Park is 350 feet, clearly within the mandatory 500-foot notice boundary. Moreover, the City's Code of Ordinances explicitly provides that "any person owning or occupying property within 500 feet of any proposed licensed premises, and any member of the public who wishes, may be heard on the application.” Code of Ordinances § 3-51 (2003). Therefore, Wynd-ham Park residents properly testified at the hearing before the city council.
      Phase II also argues that persons residing at Wyndham Park "are not’ 'residents' as the term would define an area within the city of
      Huntsville zoned residential.” Phase II contends that these persons are “occupants of a commercial facility located within an area zoned light industry,” and, thus, that the occupants at Wyndham Park have "absolutely no legal standing or basis upon which to object to [its] license application.” (Phase II's brief, pp. 14-15.) Phase II provides no factual or legal authority in support of its contention. Testimony elicited at the hearing before the city council indicated that an area zoned for light industry specifically provided for commercial, industrial, and residential uses; thus, the Wyndham Park retirement community and the nursing home are permissible residential uses within an area zoned light industry.
      Additionally, Phase II provides no legal authority for the argument that the city council acted improperly in hearing Wyndham Park residents testify at the hearing. " 'When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant's legal research.’ ” Hall v. Hall, 903 So.2d 78, 80-81 (Ala.2004) (quoting City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998)).


source: Caselaw Access Project

author: BRYAN, Judge. MURDOCK, Judge, THOMPSON, Judge,

license: Public Domain

text:
    Stanley E. WILSON et al. v. COLBERT COUNTY BOARD OF EDUCATION and Bonnie Starkey.
    2040604.
    Court of Civil Appeals of Alabama.
    March 24, 2006.
    Rehearing Denied Aug. 4, 2006.

      Ricky V. South, Florence, for appellants.
    Donald B. Sweeney and Hope T. Cannon of Bradley Arant Rose & White, LLP, Birmingham; and Stanley E. Munsey, Colbert County Board of Education, Tuscum-bia, for appellees.
   BRYAN, Judge.

The plaintiffs — Stanley E. Wilson; Debra J. Wilson; and Kyle Wilson, by and through his father and mother and next friends, Stanley E. Wilson and Debra J. Wilson — appeal a summary judgment entered in favor of the defendants — the Colbert County Board of Education (“the Board”), Bonnie Starkey, David Jones, and Jenetta Waddell. We affirm in part, reverse in part, and remand.

Starkey is a special-education aide employed by the Board. Kyle, a special-needs student, attended Leighton Elementary School, where Starkey worked. On March 18, 2004, Kyle and his parents sued the Board and Starkey, alleging negligence and claims under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. In their complaint, the plaintiffs alleged that at school on March 20, 2002, Starkey dropped Kyle and fell on him while she was transferring Kyle from a changing table to his wheelchair. The plaintiffs alleged that Kyle sustained a broken right leg because of the incident.

On May 24, 2004, the Board and Starkey filed a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss, alleging that all the claims against them should be dismissed on the ground of governmental immunity. The plaintiffs subsequently filed a response to the motion to dismiss.

On October 28, 2004, the plaintiffs amended their complaint to add as defendants David Jones, the principal of Leigh-ton Elementary School, and Jenetta Wad-dell, the special-education director for the Colbert County school system. In their amended complaint, the plaintiffs alleged that Jones and Waddell had negligently supervised and trained Starkey. The amended complaint also purported to allege fraud and bad-faith claims against Jones and Waddell.

On October 29, 2004, the Board and Starkey again filed a Rule 12(b)(6) motion to dismiss, alleging that all the claims against them should be dismissed on the ground of governmental immunity. The motion to dismiss was supported by Starkey’s affidavit. On December 8, 2004, defendants Jones and Waddell also filed a Rule 12(b)(6) motion to dismiss, alleging that all the claims against them should be dismissed on the ground of governmental immunity. On February 8, 2005, the defendants filed a second affidavit by Starkey in support of all the defendants’ motions to dismiss. Starkey’s second affidavit included the text of Starkey’s original affidavit, as well as some additional text.

The trial court held a hearing on February 23, 2005. On that same date, the trial court granted the defendants’ motions and entered a judgment in favor of the defendants. The plaintiffs timely appealed to the supreme court, and, pursuant to § 12-2-7(6), Ala.Code 1975, the supreme court transferred the appeal to this court.

Although the defendants titled their motions as motions to dismiss, they submitted Starkey’s affidavits in support of their motions. Rule 12(b), Ala. R. Civ. P., states, in pertinent part: “If, on a motion asserting the defense numbered (6) to dismiss for failure ... to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment .... ” In Hornsby v. Sessions, 703 So.2d 932, 937-38 (Ala.1997), the supreme court stated:

“When matters outside the pleadings are considered on a motion to dismiss, the motion is converted into a motion for summary judgment, Rule 12(b), Ala. R. Civ. P.; this is the case regardless of what the motion has been called or how it was treated by the trial court, Papastefan v. B&L Constr. Co., 356 So.2d 158 (Ala.1978); Thome v. Odom, 349 So.2d 1126 (Ala.1977).”

Because the trial court was presented with, and did not exclude, matters outside the pleadings, the defendants’ motions to dismiss were converted into motions for a summary judgment. Rule 12(b), Ala. R. Civ. P.; and Hornsby v. Sessions, supra. Therefore, in reviewing the trial court’s judgment, we apply the standard of review applicable to summary judgments.

“In reviewing the disposition of a motion for summary judgment, ‘we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was ‘entitled to a judgment as a matter of law.’ Wright v. Wright, 654 So.2d 542 (AIa.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (AIa.1990).”

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

On appeal, the plaintiffs argue (1) that the trial court erred by dismissing the negligence claim against Starkey because, the plaintiffs say, Starkey is not entitled to State-agent immunity; and (2) that the trial court erred by dismissing the claim against the Board under § 504 of the Rehabilitation Act because, the plaintiffs say, the Board is not entitled to immunity under that act. However, the plaintiffs did not present their second argument to the trial court. “This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.” Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). See also Blackmon v. Brazil, 895 So.2d 900, 907 (Ala.2004) (“This Court cannot, on the basis of an argument made for the first time on appeal, hold that the trial court erred in entering ... summary judgment.”). Because the plaintiffs have not challenged the summary judgment with respect to their claim against the Board under § 504 of the Rehabilitation Act on any other grounds, we must affirm the summary judgment with respect to that claim.

Accordingly, we will consider only the plaintiffs’ first argument, which relates only to the claim against Starkey. In Ex parte Cranman, 792 So.2d 392 (Ala.2000), our supreme court restated the rule governing State-agent immunity:

“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“(1) formulating plans, policies, or designs; or
“(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“(a) making administrative adjudications;
“(b) allocating resources;
“(c) negotiating contracts;
“(d) hiring, firing, transferring, assigning, or supervising personnel; or
“(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
“(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons; or
“(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
“(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

792 So.2d at 405 (emphasis on “shall” and “shall not” in original; other emphasis added). Although Cranman was a plurality decision, the test for determining State-agent immunity as restated in Cranman was adopted by our supreme court in Ex parte Butts, 775 So.2d 173 (Ala.2000).

Starkey argues that she is entitled to State-agent immunity under Cranman regarding the negligence claim because, she says, she was “exercising judgment” as a special-education, aide in transferring Kyle when the incident giving rise to this action occurred. The only evidence supporting Starkey’s motion for a summary judgment were her affidavits. In her affidavits, Starkey stated, among other things, that the incident with Kyle was “an accident” and that she had fallen while transferring Kyle but had not dropped him. Starkey also stated that, when the incident occurred, she was following the same procedure that she had been trained to follow and had always followed in transferring Kyle; that she was being prudent, careful, and attentive; and' that she was acting within the line and scope of her employment. The affidavits do not establish the nonexistence of a genuine issue of material fact regarding whether Starkey, in transporting Kyle at the time of the incident, was “exercising judgment in the discharge of duties imposed by statute, rule, or regulation in ... educating students.” 792 So.2d at 405. Therefore, we must reverse the summary judgment with respect to the negligence claim alleged against Starkey, but we express no opinion regarding the merits of the plaintiffs’ underlying claim.

In his special writing, Judge Thompson seems to suggest that because Starkey’s affidavits asserted “that she was acting within the line and scope of her employment” and “according to her training,” Starkey was “exercising judgment in ... educating students” under the Cranman standard. That special writing then proceeds to analyze whether Starkey acted “willfully, maliciously, fraudulently, in bad faith, [or] beyond ... her authority” in transporting Kyle, and concludes that she did not. The special writing therefore concludes that Starkey should be entitled to State-agent immunity.

In Cranman, our supreme court stated:
“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“(5) exercising judgment in ... educating students.
“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

Cranman, 792 So.2d at 405 (emphasis on “shall” and “shall not” in original;., other emphasis added). Therefore, an analysis regarding whether Starkey acted “willfully, maliciously, fraudulently, in bad faith, [or] beyond ... her authority” would be applicable only if Starkey had shown, as an initial matter, that she was “exercising judgment in ... educating students.” Starkey simply did. not establish, in the affidavits accompanying her motion for a summary judgment, that she was exercising judgment under the Cranman standard. Starkey’s asserting in her affidavits that she was acting “within the line and scope of her employment” and “according to her training” do not establish that she was exercising judgment under Cranman and its progeny; if anything, the affidavits tend to establish the opposite. Therefore, an analysis regarding whether Starkey established that she was not acting “willfully, máliciously, fraudulently, in bad faith, [or] beyond ... her authority” is unnecessary because Starkey failed to establish, as an initial matter, that she was “exercising judgment in ... educating students” under Cranman. Because Starkey failed to establish the nonexistence of a genuine issue of material fact, the burden of presenting substantial evidence creating such an issue never shifted to the plaintiffs. Hobson, 690 So.2d at 344.

Judge Thompson’s special writing, citing Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala.2003), states that “[t]he immunity afforded a State agent who exercises his or her judgment in the education of students ... is not abrogated based on negligent and wanton conduct; instead, immunity is withheld only upon a showing by the injured plaintiff that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority.” Although the “[t]he immunity afforded a State agent who exercises his or her judgment in the education of students ” can be withheld “upon a showing by the injured plaintiff that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority,” to the extent that the above-quoted statement from Judge Thompson’s special writing could be misread to imply that a State agent who has not demonstrated that he or she exercises judgment in the education of students is entitled to immunity absent a showing that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority, we disagree; Giambrone does not stand for such a proposition.

We reverse the summary judgment with respect to the plaintiffs’ negligence claim against Starkey. In all other respects, we affirm the summary judgment. We remand the case to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PAlRT; REVERSED IN PART; AND REMANDED.

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

MURDOCK, J., concurs in part and concurs in the result in part, with writing, which CRAWLEY, P.J., joins.

THOMPSON, J., concurs in part and dissents in part, with writing.

MURDOCK, Judge,

concurring in part and concurring in the result in part.

I concur in the main opinion insofar as it affirms the summary judgment as to the plaintiffs’ claims under 29 U.S.C. § 794. I concur in the result as to that portion of the main opinion reversing the summary judgment in favor of Starkey on the plaintiffs’ state-law claims, including negligence, and I do so on the basis of the following analysis.

As Justice Lyons wrote in the plurality opinion in Ex parte Cramnan, 792 So.2d 392 (Ala.2000):

“[A]s long as [a State] agent has not disobeyed clear instructions, almost any challenged conduct can be reduced to the exercise of some degree of judgment or discretion. However, judicial deference to all conduct in which judgment or discretion is employed would exalt the immunity of § 14, [Ala. Const.1901,] over the right to a remedy preserved by § 13[, Ala. Const.1901]. As an example, there should be some recognizable difference in legal consequence between, on the one hand, a prison warden’s decision not to fire or not to sanction the entity contracting with the State Department of Corrections to provide medical services and, on the other hand, a decision by the driver of a pickup truck on how to drive through or around potholes while transporting prisoners. Each situation involves judgment or discretion. Under our recent cases, the warden is immune and the truck driver is not.
“We cannot, in blind obedience to the doctrine of stare decisis, continue to accept an expansive application of caselaw characterizing as a discretionary function conduct remote from the execution of governmental policy; to do so would perpetuate an erroneous construction of the Constitution. Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 42 (Ala.1998) (Lyons, J., concurring specially) (citing Gwin, White & Prince, Inc. v. Henneford, 305 U.S. 434, 454-55, 59 S.Ct. 325, 83 L.Ed. 272 (1939) (Black, J., dissenting)). The time has come to face the necessity of defining ‘injury,’ as that word is used in § 13, in lawsuits against State employees alleging torts committed in the line of duty, in a manner that neither violates § 13 nor prefers § 14 or § 6.01 of the Judicial Article over § 13. We decline to label all discretionary acts by an agent of the State, or all acts by such an agent involving skill or judgment, as ‘immime’ simply because the State has empowered the agent to act. Such an expansive view of the power of the State to act with immunity for its agents would be inconsistent with the rights secured by § 13.”

792 So.2d at 404-05 (emphasis added; footnotes omitted).

As I read Cranman, it matters not whether Starkey followed the same procedure she had always followed in transferring Kyle, or whether she used her “discretion” to follow some different procedure in doing so, Starkey’s conduct in this case was not conduct of the nature to which Cranman would, and Ex parte Butts, 775 So.2d 173 (Ala.2000), does, extend State-agent immunity. More specifically, Kyle was not injured by virtue of an “exercis[e] [of] judgment” by Starkey in “educating students.” Kyle was injured simply by a personal tort committed by Starkey. The fact that Starkey was empowered by the State to undertake the action in which she was engaged when she committed that tort does not change the intrinsic nature of the conduct that led to Kyle’s injury.

CRAWLEY, P.J., concurs.

THOMPSON, Judge,

concurring in part and dissenting in part.

In relevant part, Ex parte Cranman provides:

“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in ... educating students.”

792 So.2d 392, 405 (second emphasis added). The State agent bears the burden of establishing that his or her conduct was shielded by Cranman. Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala.2003). If the State agent makes such a showing, the burden of proof then shifts to the injured plaintiff to rebut that showing. Giambrone v. Douglas, supra; and Ex parte Wood, 852 So.2d 705 (AIa.2002). The immunity afforded a State agent who exercises his or her judgment in the education of students and the supervision of personnel is not abrogated based on negligent and wanton conduct; instead, immunity is withheld only upon a showing by the injured plaintiff that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority. Giambrone v. Douglas, supra.

Our supreme court has discussed the phrase “exercising judgment” in several recent cases. See Ex parte Nall, 879 So.2d 541, 545 (Ala.2003) (holding that baseball coaches were “exercising judgment,” and, therefore, shielded by Cran-man, while conducting a baseball practice in which a player was hit in the head by a ball); Giambrone v. Douglas, 874 So.2d at 1052-54 (holding that a wrestling coach was “exercising judgment” while conducting wrestling practice; however, the wrestling coach was not protected by Cranman because he was acting contrary to clearly established guidelines when he accidently paralyzed a team member during a “challenge match,” and, therefore, his conduct fit within an exception to the test articulated in Cranman); Ex parte Spivey, 846 So.2d 322 (Ala.2002) (holding that a shop teacher was shielded from liability for injuries sustained by a student as a result of the teacher’s allowing the student to use equipment without a safety guard); and Ex parte Blankenship, 806 So.2d 1186 (Ala.2000) (holding that a high-school band director was shielded by Cranman after the statutory rape of a student by a non-student who the teacher had allowed to participate in the band).

In the present case, Starkey is a school employee whose job involves the care and education of special-needs students. Starkey’s affidavits in support of her motion for a summary judgment asserted that she was acting within the line and scope of her employment and that she was acting according to her training. In my opinion, Starkey, through her affidavits, met her burden of invoking the protections of Cranman, and the burden of proof then shifted to the plaintiffs. See Giambrone v. Douglas, 874 So.2d at 1052. The plaintiffs presented no evidence to indicate that Starkey had acted willfully, maliciously, fraudulently, in bad faith, or beyond her authority. Id. Because the plaintiffs presented no evidence to the trial court, it cannot be said that the plaintiffs rebutted Starkey’s showing. See Giambrone v. Douglas, 874 So.2d at 1052; see also Ex parte Cranman, 792 So.2d at 405.

I find the trial court’s summary judgment in favor of Starkey to be appropriate under the facts of this case, and that the judgment is due to be affirmed. Therefore, I respectfully dissent from the main opinion insofar as it reverses the trial court’s summary judgment in favor of Starkey. I concur with the main opinion in all other respects.

      . The complaint does not explicitly state whether Starkey was sued in her official or individual capacity. Considering the substance of the whole complaint, it appears that Starkey was sued in both her official and individual capacities.

      . Because the plaintiffs do not challenge the summary judgment with respect to their negligence claims against the Board, Jones, and Waddell, or with respect to their fraud and bad-faith claims against Jones and Waddell, they have abandoned those claims. Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317 (Ala.2003).

      . Although Starkey’s affidavits do not establish the nonexistence of a genuine issue of material fact regarding whether Starkey was "exercising judgment in ... educating students,” we note that she is not precluded from introducing evidence on remand tending to show that she was "exercising judgment in ... educating students.” 792 So.2d at 405. See also Giambrone v. Douglas, 874 So.2d 1046 (Ala.2003) (wherein the supreme court, based upon evidence submitted on a motion for a summary judgment, stated that it could not determine at that stage of the proceedings that the summary-judgment movant was entitled to State-agent immunity). We further note, however, that in the absence of such additional evidence, Starkey would not be afforded State-agent immunity under Cranman. In Cranman, our supreme court stated that “[w]e decline to label all discretionary acts by 'an agent of the State, or all acts by such an agent involving skill or judgment, as 'immune' simply because the State has empowered the agent to act. Such an expansive view of the power of the State to act with immunity for its agents would be inconsistent with the rights secured by [Art. I,] § 13[, Ala. Const, of 1901].” 792 So.2d at 405. See also Horton v. Briley, 792 So.2d 432 (Ala.Civ.App. 2001) (stating that a bus driver was not extended immunity under Cranman because, although bus drivers use their own judgment in performing duties, that judgment is not related to the formulation or application of governmental policy).

      . Addressing personal-injury claims brought against bus drivers employed by a county board of education, this court wrote in Horton v. Briley, 792 So.2d 432 (Ala.Civ.App.2001):
      "[The plaintiff] argues that the bus drivers' duties are not included within any of the categories of State-agent immunity described by the supreme court in [Ex parte] Cranman [, 792 So.2d 392 (Ala.2000) ]. Bus drivers certainly use their own judgment or discretion in performing their duties, but that judgment or discretion is not related to the formulation or application of governmental policy. The Cranman court explained, '[Cjharacterizing as a discretionary function conduct remote from the execution of governmental policy ... would perpetuate an erroneous construction of the Constitution.’ Cranman, 792 So.2d at 404.”
      792 So.2d at 434.


author: LYONS, Justice.

text:
    Ex parte Bonnie STARKEY. (In re Stanley E. Wilson et al. v. Colbert County Board of Education and Bonnie Starkey).
    1051664.
    Supreme Court of Alabama.
    Sept. 29, 2006.

      Donald B. Sweeney, Jr., and Hope T. Cannon of Bradley Arant Rose & White, LLP, Birmingham; and Stanley E. Mun-sey, Tuscumbia, for petitioner.
   LYONS, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

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


author: THOMPSON, Judge. MURDOCK, Judge, THOMPSON, Judge. MURDOCK, Judge,

text:
    Wendy Downing PATRICK v. Mary Anne WILLIAMS.
    2050203.
    Court of Civil Appeals of Alabama.
    May 26, 2006.
    Order Overruling Rehearing Aug. 4, 2006.
    Certiorari Denied Sept. 15, 2006 Aabama Supreme Court 1051663.

      Garve Ivey, Jr., and Gordon A. Mayfield of Ivey & Ragsdale, Jasper, for appellant.
   THOMPSON, Judge.

Wendy Downing Patrick (“the mother”) appeals the trial court’s judgment awarding Mary Anne Williams (“the maternal grandmother”) custody of the two minor daughters (“the children”) born of the marriage between the mother and Jeffery Arnold Downing (“the father”). We affirm in part, reverse in part, and remand with instructions.

The trial court divorced the mother and father in 2000. The judgment of divorce, which incorporated an agreement between the mother and father, awarded the mother primary physical custody of the children and awarded the father standard visitation. The divorce judgment also ordered the father to pay child support in the amount of $733 per month. Both the mother and the father have remarried since their divorce.

On October 3, 2004, the mother voluntarily placed the children with the maternal grandmother. The mother and her new husband also voluntarily placed the son born of the marriage between the mother and her new husband with the new husband’s mother.

On October 20, 2004, the maternal grandmother filed in the trial court an emergency petition for custody of the children; the trial court granted that petition that same day. On October 25, 2004, the father filed a response to the maternal grandmother’s emergency petition for custody. The father’s response asserted that the mother was addicted to methamphetamine and that he, rather than the maternal grandmother, should be awarded custody of the children.

On November 10, 2005, the father, alleging that there had been a material change in circumstances, requested that the trial court modify the judgment of divorce and award him custody of the children. That same day, the father filed a petition for a rule nisi in which he alleged that the mother had prevented him from visiting with the children and, therefore, that she should be held in contempt.

The maternal grandmother and the father entered into a pendente lite agreement. On November 23, 2004, the trial court entered a pendente lite order that was based on the agreement between the maternal grandmother and the father. That order awarded the maternal grandmother pendente lite custody of the children, outlined a visitation schedule for the father, and directed that the mother could have supervised visitation with the children. On December 6, 2004, the mother filed a response to the father’s petition to modify custody and his petition for a rule nisi. That same day, the mother also filed a counterpetition for a rule nisi in which she alleged that the father was $29,302.69 in arrears on his child-support obligation. The mother also filed a petition to modify the judgment of divorce to increase the father’s child-support obligation based on her allegation that the father had realized an increased income since the divorce.

On February 1, 2005, the maternal grandmother amended her petition for custody. Among other things, the amended petition added a dependency claim as to both of the children. On February 10, 2005, the trial court entered an order setting the matter for a final hearing, leaving the November 23, 2004, pendente lite order in full effect until the final hearing, and ordering the mother to pay $200 per month and the father to pay $300 per month to the maternal grandmother in child support.

On June 1, 2005, the trial court conducted an ore tenus hearing, at which all of the parties and several members of the children’s extended family were present. After the hearing, the trial court found the father to be in contempt of court and ordered him jailed as a result of his being more than $30,000 in arrears on his child-support payments.

On September 8, 2005, the trial court entered a judgment awarding the maternal grandmother custody of the children. In its judgment, the trial court found that the father had had no contact with the children for three years, that the father was in contempt due to his substantial child-support arrearage, and that the father had abandoned the children. The judgment also found that the mother’s addiction to methamphetamine had exposed the oldest child to a potentially fatal ingestion of the drug and that the mother could offer no credible story to explain the ingestion. The trial court found both the mother and the father “unfit to fulfill the duties and responsibilities of a natural parent at this time,” and it therefore awarded custody of the children to the maternal grandmother. The trial court also gave the parties leave to file “properly documented proposals for child support according to the child-support guidelines, and provisions for visitation for the natural parents.”

On October 4, 2005, the mother filed a “postjudgment motion,” which the trial court denied on October 12, 2005. On October 24, 2005, the trial court entered an order that directed the father to pay $571 per month in child support and directed the mother to pay $190 per month in child support. The mother timely appealed; the father has not appealed.

The testimony at the hearing revealed the following pertinent facts. Soon after her divorce in 2000, the mother remarried and moved with her new husband and the children to La Grange, Georgia. The mother, her new husband, and the children moved to Texas in 2002. Since moving to Texas, the mother has been a stay-at-home parent, and the new husband has worked with computers in the automotive industry.

Since the. divorce, the father has lived in Montgomery, - Dothan, and Panama City, Florida; he has worked continuously as a service technician for a cable-television provider. At all times relevant to this appeal, the maternal grandmother, a retired nurse, has lived in Tallapoosa County-

The mother testified that the father exercised visitation with the children soon after the divorce but that his visits became increasingly less frequent and he eventually stopped visiting the children all together. The father claimed that the mother had prevented him from exercising visitation with the children, but the mother disputed that claim. There was no dispute, however, that the father went approximately two years without visiting the children and did not attempt to have the trial court order the mother to allow him to see the children during that time. The evidence indicated that the mother had encouraged the children to visit with members of the father’s family; the father’s parents and his sister had traveled to Texas to see the children, and the mother regularly brought the children to Alabama to see those family members.

The mother claimed that the father had not paid his child-support. obligation for approximately two and one-half years. According to the mother, the father was $28,937.69 in arrears on his child-support obligation, he owed $7,800 in statutory interest on that arrearage, and he owed $3,281.79 for the children’s medical expenses. The father did not dispute the amounts offered by the mother. He testified that, despite his having been continuously employed, he began missing child-support payments in October 2002 because he was “holding a grudge” and “being pigheaded.” The father stated that he was upset with the mother for preventing him from seeing the children and, therefore, he stopped making his child-support payments.

The mother asserted that, during their marriage, the father had been physically abusive to her. She also described the father as belonging to a white-supremacist group. The father denied belonging to such a group, but he admitted to being interested in white-supremacist activity while he was in high, school.

The father’s new wife testified that the father loved the children and that he had moved from Florida to Montgomery in late 2004 in order to be closer to the children. The maternal grandmother testified that the father had been exercising regular visitation since the children had returned to Alabama. The maternal grandmother also stated that the father was current on his $300 per month pendente lite child-support obligation to her. The mother, however, had missed several of her pendente lite child-support payments to the maternal grandmother.

By all accounts, the mother had been a loving parent until she became addicted to methamphetamine. The mother testified that she and her new husband tried the drug for the first time while on vacation in Hawaii in 2002. She described her use of the drug as sporadic at first, but that it became more and more regular as the months passed. The mother testified that, by late summer of 2004, she and her new husband were smoking “an eight-ball per week”; her new husband described their using one gram of methamphetamine per day. Her new husband stated that one gram of methamphetamine cost approximately $40.

The mother and her new husband testified that, when using methamphetamine, they would typically leave the children with a babysitter after the children had gone to bed, go to a dance club to purchase the drugs, and then go to a motel to smoke the drugs. They would then stay at the motel until they were sober enough to drive, usually returning home between 4 a.m. and 6 a.m. the next morning. According to the mother’s new husband, the couple had also experimented with the drug “ecstasy.” The mother and her new husband testified that they hid their drugs in their garage and that they had, on a handful of occasions, smoked methamphetamine at their home while the children were asleep. The mother and her new husband testified that the children were making good grades while they lived in Texas and that, for the most part, the mother and her new husband’s drug use did not adversely affect the children.

However, on October 1, 2004, the oldest child, then age seven, was admitted to the hospital for what was later determined to be an ingestion of methamphetamine. Despite repeated questions by the attorneys and the trial court, neither the mother nor her new husband could offer an explanation as to how the child came into contact with the narcotics; the mother did, however, state, without qualification, that the incident was her fault. Within hours of learning that the child was in the hospital, the children’s maternal grandparents traveled to Texas to be at the child’s bedside.

Once the hospital staff discovered that the child had ingested methamphetamine, they contacted the Texas Department of Regulatory Services’ Child Protective Services (“CPS”). CPS confronted the mother about her drug use, and the mother admitted that she was addicted to methamphetamine. CPS suggested that the maternal grandmother take the two children at issue' in these proceedings and that the new husband’s mother take the son while the mother and her new husband received treatment for their addictions. There does not appear to have been a judicial proceeding in Texas in which a Texas court exercised jurisdiction over the children. The parties’ attorneys described the event as “voluntary,” and one in which Texas’s “jurisdiction was never invoked.”

In order to voluntarily place the children and the mother and her new husband’s son with their respective grandparents (ds part of a safety plan), the mother and her new husband completed forms provided by CPS. A CPS social worker assisted the mother and her new husband as they completed the forms necessary to temporarily place the children in the care of the maternal grandmother.

Within days of the oldest child’s release from the hospital, the maternal grandmother returned to Alabama with the children while the mother and her new husband entered a drug-treatment facility. The mother completed 21 days of treatment and has submitted to regular drug-screen tests; she has not tested positive for a controlled substance since the incident involving the oldest child. The mother testified that she has been actively participating in after-care and 12-step programs. The mother’s new husband remained in treatment for only approximately six days. He claimed at the hearing that he has remained sober since the incident with the oldest child; he has also submitted to drug-screen tests and has not tested positive for drug use. The mother and her new husband both passed a hair-follicle test conducted at the end of the hearing in this matter.

The maternal grandmother admitted that she and the mother had had disagreements over the years and that, when she was 16 years old, the mother moved out of the maternal grandmother’s home because of a dispute involving an automobile. Despite their past problems and the troubles arising from the mother’s addiction, the maternal grandmother testified that she loved the mother; the maternal grandmother stated, however, that she did not love, the mother’s new husband.

The maternal grandmother described the mother’s new husband as being a negative influence in the mother’s life. The maternal grandmother also stated that she had serious doubts about the new husband’s claimed sobriety; the maternal grandfather expressed similar concerns. The maternal grandfather testified that he was “gravely concerned” about the children returning to the mother’s home because of his doubts regarding the new husband’s sobriety. There was also evidence indicating that the mother’s new husband suffered from depression and that, on at least one occasion, he had attempted to commit suicide. After the hearing in this matter, the guardian ad litem recommended that the maternal grandmother receive custody of the children.

It is well settled that when a trial court receives ore tenus evidence in a child-custody-modification proceeding and bases its judgment on its findings of fact, that judgment will not be reversed absent an abuse of discretion or a showing that the findings are plainly and palpably wrong. Smith v. Smith, 865 So.2d 1207, 1209 (Ala.Civ.App.2003). See also West v. Rambo, 786 So.2d 1138, 1140 (Ala.Civ.App.2000). A judgment based on ore tenus evidence is presumed to be correct and will be affirmed if supported by competent evidence. N.G. v. L.A., 790 So.2d 262, 265 (Ala.Civ.App.2001). The trial court’s opportunity to observe witnesses is especially important in child-custody cases because the trial court is in the unique position to directly observe the witnesses and to assess their demeanor and credibility. Fell v. Fell, 869 So.2d 486, 494 (Ala.Civ.App.2003). However, when this court is presented with an issue of law, we review the judgment of the trial court de novo, without affording it any presumption of correctness. See Barber v. Moore 897 So.2d 1150,1153 (Ala.Civ.App.2004).

The mother raises three issues on appeal; we address each issue separately. First, the mother argues that the trial court lacked subject-matter jurisdiction to modify the custody of the children. We disagree.

“The Parental Kidnapping Prevention Act (‘PKPA’), 28 U.S.C. § 1738A, and Alabama’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (‘UCCJEA’), codified at Ala.Code 1975, § 30-3B-101 et seq., govern when a state has jurisdiction to decide a child-custody issue. The PKPA states that continuing jurisdiction remains in a state that has made a child-custody determination provided that the state continues to have jurisdiction under the state’s laws and the child or at least one ‘contestant’ resides in that state. 28 U.S.C. § 1738A(d); see also Holloway v. Holloway, 519 So.2d 531, 532 (Ala.Civ.App.1987).”

M.J.P. v. K.H., 923 So.2d 1114, 1116 (Ala.Civ.App.2005). The Parental Kidnapping Prevention Act (“PKPA”) defines a “contestant” as “a person, including a parent or grandparent, who claims a right to custody or visitation of a child.” 28 U.S.C. § 1738A(b)(2).

Under the PKPA, the trial court retained continuing jurisdiction to modify the children’s custody so long as it retained jurisdiction under the laws of Alabama and at least one of the contestants continued to live in Alabama. 28 U.S.C. § 1738A(d). The maternal grandmother has lived in Tallapoosa County at all times relevant to this appeal, and she meets the criteria outlined in the PKPA to be a “contestant” because she is a person claiming a right to custody of the children. See 28 U.S.C. § 1738A(b)(2). Therefore, our analysis next turns to whether the trial court could, under Alabama’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (“ the UCCJEA”), exercise continuing jurisdiction to modify the children’s custody. 28 U.S.C. § 1738A(d).

In order to exercise continuing jurisdiction over the matter, the trial court must have had jurisdiction to make an initial custody determination. The UCCJEA defines “initial determination” as “[t]he first child custody determination concerning a particular child.” § 30-3B-102(8), Ala. Code 1975.

Section 30-3B-201 of the UCCJEA summarizes when a court of this state has jurisdiction to make an initial custody determination:

“(a) Except as otherwise provided in Section 30-3B-204, a court of this state has jurisdiction to make an initial child custody determination only if:
“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.”

The trial court divorced the mother and father; thus, it was the first court to make a determination regarding the custody of the children. At the time of the divorce, the mother, the father, and the children all resided in Alabama; Alabama was the children’s home state. None of the parties dispute that the trial court had subject-matter jurisdiction to make the initial custody determination regarding the children as part of the divorce judgment. See § 30-3B-201, Ala.Code 1975.

Section 30-3B-202 provides when a court of this state has continuing jurisdiction of a custody case:

“(a) Except as otherwise provided in Section 30-3B-204, a court of this state which has made a child custody determination consistent with Section 30-3B-201 or Section 30-3B-203 has continuing, exclusive jurisdiction over the determination until:
“(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or “(2) A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.”

The UCCJEA defines “person acting as a parent” as

“[a] person, other than a parent, who:
“a. Has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and
“b. Has been awarded legal custody by a court or claims a right to legal custody under the law of this state.”

§ 30 — 3B—102(13), Ala.Code 1975 (emphasis added). The Official Comment to § 30-3B-102 notes that “[t]he term ‘person acting as a parent’ .... has been broadened ... to include a person who ... currently has physical custody of the child.”

At the commencement of these proceedings, the maternal grandmother had physical custody of the children and was claiming a right to their custody. Thus, she met the definition in the UCCJEA of a person acting as a parent. See § 30-3B-102(13), Ala.Code 1975. Because the maternal grandmother was a person acting as a parent, and because the maternal grandmother continued to reside in Alabama, the trial court retained jurisdiction to modify custody of the children under § 30-3B-202(a)(2).

The evidence indicates that the children also have a significant connection to Alabama. Notably, it was the mother who agreed to send the children to live with the maternal grandmother. In addition, other evidence presented at the hearing indicated that the children have maintained close relationships with both sides of their extended family who live in Alabama. The father’s sister, an Alabama resident, testified that she spent an entire month visiting the children in Texas, and the mother brought the children to Alabama to see various members of both sides of their family on a regular basis. Further, the maternal grandmother and maternal grandfather were at the oldest child’s bed- ' side in Texas within hours of learning that she had been hospitalized. All of this evidence, taken together, indicates that the children have enjoyed close familial connections with several of their relatives living in Alabama. Moreover, the father had recently moved back to Alabama after the children returned to the state.

Likewise, there was available in this state substantial evidence regarding the children’s care, protection, training, and personal relationships. The mother, the father, the mother’s new husband, the maternal grandparents, and members of the father’s family gave extensive testimony regarding the children’s well being and the care provided to them by the mother, the father, and the maternal grandmother. The witnesses described in detail the mother’s and her new husband’s drug addictions, the effect their addictions had on the children, the father’s failure to provide support for the children, and the children’s performance in school. Based on the detailed testimony presented at the hearing, we conclude that there was sufficient evidence available in Alabama concerning the children’s care, protection, training, and personal relationships for the trial court to retain jurisdiction under § 30-3B-202(a)(1). We find that the trial court had subject-matter jurisdiction under both the PKPA and the UCCJEA to decide the issues in these proceedings and that the mother has failed to demonstrate error as to this issue.

The mother next argues that the trial court erred by awarding custody of the. children to the maternal grandmother. We disagree. The controlling consideration; in child-custody matters is always the best interests of the child; to that end, the trial court is given wide discretion in awarding custody and establishing visitation. Murphree v. Murphree, 579 So.2d 634, 636 (Ala.Civ.App.1991).

“It is well settled that a natural parent has a prima facie right to custody of his or her child as against a nonparent. Ex parte Terry, 494 So.2d 628 (Ala. 1986); Ex parte Mathews, 428 So.2d 58 (Ala.1983). Our courts have supported the presumption in favor of the natural parent, even as against grandparents. Ex parte Woodfin, 596 So.2d 918 (Ala. 1992). This presumption recognizes that, as a matter of law, the best interests and welfare of the child are served by maintaining parental custody. Terry, 494 So.2d 628. Under the standard delineated in Terry, the presumption may be overcome only by proof that the natural parent ‘is guilty of such misconduct or neglect to a degree rendering that parent an unfit and improper person to be entrusted with the care and upbringing of the child in question.’ Id. at 632.”

Wright v. Wright, 602 So.2d 421, 423 (Ala. Civ.App.1992). Absent a voluntary forfeiture of custody or a prior judgment removing custody from a parent and awarding it to a nonparent, a court cannot award a nonparent custody of a child at the request of that nonparent without first making an express determination that the parent opposing the request is “unfit.” H.E.B., Jr. v. J.A.D. 909 So.2d 840, 842-43 (Ala.Civ. App.2005). Any finding that a parent is .unfit must be based on clear' and convincing evidence. Ex parte Terry, 494 So.2d 628, 633 (Ala.1986).

The mother advances two arguments relating to this issue. First, the mother asserts that her temporarily granting the maternal grandmother custody after the oldest child was hospitalized did not rise to the level of relinquishment required to overcome a natural parent’s prima facie right to custody. The mother also contends that the trial court erred by finding the mother “unfit to fulfill the duties and responsibilities of a natural parent at this time.” We address each argument" separately.

This court has. previously held that a father’s agreeing to his children being temporarily placed with the children’s maternal grandparents did not, by itself, overcome his prima facie right to custody of his children. Wright v. Wright, 602 So.2d at 423. In this case, in order to transfer custody to the maternal grandmother, the mother signed a CPS form; the wording of that form suggests that the mother considered the placement to be temporary. Further, there was no judicial procedure in Texas through which the mother lost custody. We agree with the mother that the temporary placement of the children with the maternal grandmother was, by itself, not sufficient to overcome the strong presumption afforded natural parents in custodial matters. We cannot agree, however, with the mother’s second argument relating to this issue.

The trial court based its custody decision on its determination that the mother was “unfit to fulfill the duties and responsibilities of a natural parent at this time.” The mother argues that the trial court erred in reaching that conclusion. In Wright v. Wright, supra, this court noted that, absent voluntary relinquishment of custody, a parent’s prima facie right to custody could be overcome only “by proof that the natural parent ⅛ guilty of such misconduct or neglect to a degree rendering that parent an unfit and improper person to be entrusted with the care and upbringing of the child in question.’ ” 602 So.2d at 423 (quoting Ex parte Terry, 494 So.2d at 632).

In this case, the trial court was presented with undisputed evidence indicating that the mother’s drug addiction exposed the oldest child to a potentially fatal ingestion of methamphetamine. The mother and her new husband testified that they were smoking the drugs on a regular basis, sometimes in the home while the children were asleep. The mother and her new husband admitted that they had hidden the drugs in the garage, but neither of them could offer an explanation as to how the oldest child came into contact with the drugs. Though the mother and her new husband may have attempted to minimize the effect their drug addictions had on the children, there was no. dispute that their addictions could have cost the oldest child her life.

The mother and her new husband claimed that they had quit using drugs and that at the time of the hearing they had been sober for eight months. Both the mother and her' new husband had passed several drug-screen tests and were attending 12-step programs. The trial court, however, heard undisputed testimony regarding the extreme difficulties encountered by people recovering from an addiction to methamphetamine. Further, the maternal grandparents both expressed serious concerns regarding whether the mother’s new husband was sincere in his efforts to remain sober. The maternal grandfather testified that he never received a believable answer as to how the oldest child could have ingested the drugs and that he was “gravely concerned” about the children returning to the mother’s home.

The trial court had the opportunity to observe the witnesses and hear their testimony. Therefore, it was the province of the trial court, rather than this court, to judge the credibility of those witnesses. Fell v. Fell, 869 So.2d at 494. We cannot say that the trial court’s determination that the mother was “unfit to fulfill the duties and responsibilities of a natural parent at this time” and, therefore, that it was in the children’s best interest for custody to be vested with the maternal grandmother was unsupported by the evidence. See Ex parte Terry, supra; H.E.B., Jr. v. J.A.D., supra; J.W. v. D.W., 835 So.2d 206, 210-11 (Ala.Civ.App.2002); and Wright v. Wright, 602 So.2d at 423. After a complete review of the record on appeal, we conclude that the trial court did not plainly and palpably err by determining that the mother was unfit to discharge her parental duties.

The mother next argues on appeal that the trial court erred to reversal by not entering a judgment as to the father’s child-support arrearage. We agree. “Past due installments of child support create a final monied judgment therefor. Child support payments that mature before the filing of a petition are immune from change.” O’Neal v. O’Neal, 532 So.2d 649, 650 (Ala.Civ.App.1988) (citations omitted). While it is within the discretion of the trial court to modify the amount of child support due in the future, the trial court may not release or discharge child-support payments once they have matured and become due under the original divorce judgment. Frasemer v. Frasemer 578 So.2d 1346, 1348 (Ala.Civ.App.1991) (citing Mann v. Mann, 550 So.2d 1028 (Ala.Civ.App.1989)).

“Where the obligated parent has failed to make child support payments because of financial inability to do so, the trial court may properly find the parent not in contempt, Patterson v. Gartman, 439 So.2d 171 (Ala.Civ.App.1983), but the trial court may not ‘forgive’ or set aside the accrued arrearage. State Dep’t of Human Resources v. Hulsey, 516 So.2d 720 (Ala.Civ.App.1987).”

Frasemer v. Frasemer, 578 So.2d at 1349.

In this case, the trial court discussed in great detail with the parties’ attorneys and the guardian ad litem the amount of the father’s arrearage. That discussion included a calculation of the ar-rearage, the statutory interest that had accrued on the arrearage, and the amount of past-due medical expenses owed by the father. The trial court went so far as to enunciate a figure that it seems to have concluded was the amount of the father’s arrearage. The trial court also held the father in contempt and ordered him jailed. Thus, the trial court did not fail to address the issue of the father’s arrearage; it did, however, fail to enter a monetary judgment as to the father’s arrearage.

When the trial court failed to enter a monetary judgment as to the father’s child-support arrearage, it, in effect, erroneously eliminated the final judgments for past-due support. See Frasemer v- Frasemer, supra; see also O’Neal v. O’Neal, supra (holding that a trial court’s failure to enter a monetary judgment as to a party’s child-support arrearage amounted to reversible error). Accordingly, we reverse the trial court’s judgment as to this issue, and we remand this matter to the trial court to enter a monetary judgment as to the father’s child-support arrearage. We affirm all other aspects of the trial court’s judgment.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

MURDOCK, J., concurs in part and dissents in part, with writing, which BRYAN, J., joins.

MURDOCK, Judge,

concurring in part and dissenting in part.

Our law recognizes a very strong presumption in favor of a natural parent’s right to the custody of his or her own child. Ex parte Mathews, 428 So.2d 58, 59 (Ala.1983); and Ex parte Berryhill, 410 So.2d 416, 417 (Ala.1982) (quoting Ex parte Sullivan 407 So.2d 559, 563 (Ala.1981), quoting in turn Striplin v. Ware, 36 Ala. 87, 89-90 (1860)). In addition, a judicial decision to remove a child from the custody of its natural parent must be based on clear and convincing evidence. See Ex parte Terry, 494 So.2d 628 (Ala.1986). The trial court’s judgment does not expressly indicate that it applied either of those principles in the present case. Yet, in the absence of an indication otherwise, our precedents call for us to assume that the trial court did so.

Nonetheless, I question whether the evidence in this case rises to the level sufficient to establish in a clear and convincing manner that the mother is unfit to have custody of her children. To begin with, I am not persuaded that the concerns expressed by the maternal grandparents regarding the mother’s new husband’s sobriety are sufficient, when considered with other evidence in the record, to clearly and convincingly establish the mother’s unfitness. The mother has successfully completed various drug-treatment programs and has passed every drug test administered to her during the eight months before trial. If the trial court’s judgment is affirmed, the so-called “McLendon presumption” will likely become a serious impediment to the mother ever regaining custody of her children, even if she remains drug-free. See Ex parte McLen-don, 455 So.2d 863, 866 (Ala.1984). Given the strength of the presumption in favor of a natural parent, I believe we must err on the side of the mother in this particular case. I therefore respectfully dissent as to that portion of the main opinion affirming the trial court’s custody award.

I concur in all other aspects of the main opinion.

BRYAN, J., joins.

On Application for Rehearing

THOMPSON, Judge.

APPLICATION OVERRULED.

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

MURDOCK, J., dissents, with writing.

BRYAN, J., dissents, without writing.

MURDOCK, Judge,

dissenting.

I dissent as to the overruling of the application for rehearing in this case for the same reason I dissented in part to the opinion of this court on original deliverance. I write separately on rehearing to note that, although I originally concurred in that portion of the main opinion that addressed subject-matter jurisdiction, upon further consideration of that matter on rehearing, I would now concur only in the result reached by the main opinion as to that issue.

      . The son's custody is not at issue in this appeal; he has since been returned to the custody of the mother and her new husband.

      . We note that throughout these proceedings various pleadings, such as the maternal grandmother’s petition for emergency custody, were designated with a case-number suffix of “.01” and other pleadings, such as the father's petition for modification of custody, were designated with a case-number suffix of ".02.” Despite the use of different case-number suffixes, the trial court’s disposition of the matter leaves no doubt that it consolidated the two actions. For example, the trial court’s judgment, which grants custody of the children to the maternal grandmother, is designated with a case-number suffix of ".02,” but the judgment references the maternal grandmother’s emergency petition for custody that was designated with a case-number suffix of ".01.”

      . At the hearing in this matter, the trial court entered into a discussion with the guardian ad litem for the children and the parties' attorneys. That discussion was prompted by the suggestion of the guardian ad litem that the juvenile court, rather than the circuit court, was the appropriate forum in which to resolve the dependency issue. The trial court acknowledged that it lacked subject-matter jurisdiction to hear a dependency issue, and, though it never expressly ruled on the matter, it took the dependency issue "under advisement.” The trial court’s disposition of the issues in this case suggests, however, that it concluded that this was a custody dispute rather than a dependency proceeding. See J.A.P. v. M.M., 872 So.2d 861, 866 (Ala.Civ.App.2003) (holding that the case was more in the nature of a custody proceeding than a dependency proceeding despite some of the pleadings being styled as though they pertained to "dependency” matters).

      . We note that in her counterpetition, the mother alleged that the father was $29,302.69 in arrears; however, in her testimony she stated that he was $28,937.69 in arrears.

      . We note that, despite their traveling to Texas together when the oldest child entered the hospital, the maternal grandparents have been divorced for a number of years.

      . CPS appears to serve an analogous function to the Alabama Department of Human Resources regarding children.

      . As far as this court can determine, the divorce judgment was likewise never domesticated in Texas.

      . We note that the mother never raised the issue of subject-matter jurisdiction before the trial court. However, "' "Q]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” ' " Boykin v. International Paper Co., 777 So.2d 149, 150 n. 1 (Ala.Civ.App. 2000) (quoting Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting in turn Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987))).

      . We note that, although each state's version of the UCCJEA may vary from that of other states, there appears to be at least a modicum of uniformity as to the definition of "person acting as a parent” covering at least parents and grandparents who currently have custody of a child. See, e.g., In re Oates, 104 S.W.3d 571, 577 (Tex.Ct.App.2003) (excluding from meeting the definition of "person acting as a parent” grandparents who no longer had custody of a child at the time of a hearing hut acknowledging that the grandparents would have qualified, under Texas’s version of the UCCJEA, as "persons acting as a parent” during a three-month period in which they did have custody); see also Adoption House, Inc. v. A.R., 820 A.2d 402, 409 (Del.Fam.Ct.2003) (citing 13 Del.Code § 1902(13)).

      . We note that the father was not listed as an appellee on the notice of appeal and that the father has not filed a brief with the court.


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

text:
    Denise D. HIGGINS v. Ronnie Lynn HIGGINS. Denise D. Higgins v. Ronnie Lynn Higgins.
    2040789 and 2050276.
    Court of Civil Appeals of Alabama.
    June 2, 2006.

      J. Timothy Smith, Hoover, for appellant.
    Douglas L. Key and Foster D. Key of Key Greer Frawley Key & Harrison, Bir- ' mingham, for appellee.
   CRAWLEY, Presiding Judge.

In February 2003, Denise D. Higgins (“the wife”) sued for a divorce from Ronnie Lynn Higgins (“the husband”). After a trial, the trial court entered a divorce judgment on May 25, 2004. That judgment inadvertently omitted the language divorcing the parties; it did, however, address all pending matters relating to the property division, child custody, and child support at issue between the parties. On June 15, 2004, the husband filed a post-judgment motion; on June 21, the wife also filed a postjudgment motion. On August 17, 2004, the trial court made the following entry on the case-action-summary sheet:

“The Court continues the [wife’s] Rule 59[, Ala. R. Civ. P., postjudgment] motion pursuant to the express consent of the parties made in open court, which said consent hereby appears of record. The motion is continued and reset for ■ hearing on September 27, 2004, at 9:00 a.m.”

The trial court, on August 20, 2004, made another entry on the case-action-summary sheet, which reads:

“The Court hereby corrects a serious error and amends its order of 8/17/04 by deleting the phrase, ‘[wife’s] Rule 59[, Ala. R. Civ. P., postjudgment] motion’ and substituting therefor the phrase ‘parties’ Rule 59 motions.’ For clarifica- ■ tion, all pending Rule 59 motions are continued by the express consent of the parties. The hearing on said motions remains set at 9:00 a.m. on September 27, 2004.”

On September 28, 2004, the trial court made yet another entry on the case-action-summary sheet:

“By express consent of the parties, the Rule 59 hearings are hereby continued and reset for 10/19/04, @ 8:30 am.”

Ultimately, on May 2, 2005, the trial court amended the divorce judgment in response to certain issues raised by the parties in their respective motions; the trial court denied all other relief requested by the parties. The wife then appealed the amended divorce judgment on June 10, 2005. That appeal was assigned case no. 2040789.

As noted above, the divorce judgment did not actually contain any language divorcing the parties. On December 13, 2005, this court reinvested the trial court with jurisdiction to correct the divorce judgment to properly reflect that it had divorced the parties. The trial court entered a nunc pro tunc order adding the omitted language to the divorce judgment on December 14, 2005. The wife then appealed from that “judgment” on December 23, 2005; that appeal was assigned case no. 2050276. The two appeals were consolidated ex mero motu. .

The husband argues that the wife’s appeal in case no. 2040789 was untimely because the entries on the case-action-summary sheet did not evidence his express consent to continue the time for ruling on the parties’ postjudgment motions but instead only indicated his consent to continue the hearing on the motions. See State v. Redtop Market, Inc., 937 So.2d 1013, 1014 (Ala.2006) (holding that an entry on the case-action-summary sheet that the “[c]ase is passed by agreement of the parties” and that the “[m]otion for new trial or rehearing is reset to [a specific date]” was insufficient to indicate the parties’ express consent to extend the pendency of the motion); Ex parte Bodenhamer, 904 So.2d 294, 295 (Ala.2004) (holding that the wife’s consent, by letter, to extend “ninety (90) day period for the hearing on [the husband’s postjudgment] motion” was insufficient to extend the time for ruling on that motion); and Harrison v. Alabama Power Co., 371 So.2d 19, 21 (Ala.1979) (holding that an agreement of the parties to a continuance of a postjudgment motion was not sufficient to extend the time to rule on that motion and relying on another case in which the court stated that “ ‘counsel for appellee did not take positive steps to express in a direct and unequivocal manner that he was willing to extend the 90 day period’ ” (quoting Personnel Bd. for Mobile County v. Bronstein, 354 So.2d 8, 11 (Ala.Civ.App.1977))); but see Ex parte Sherer Timber Co., 612 So.2d 467, 468 (Ala.1992) (finding that an entry on the case-action-summary sheet showing that the postjudgment motion was “continued by agreement” of the parties was, in fact, sufficient to extend the 90-day period for ruling on the motion).

Rule 59.1, Ala. R. Civ. P., provides:

“No, post-judgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to dispose of any pending post-judgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.” -

As the husband points out, any consent to extend the 90-day period for ruling on a postjudgment motion must be in direct and unequivocal terms. This court explained in Personnel Board of Mobile County v. Bronstein:

“Black’s Law Dictionary 377 (4th ed.1968) defines ‘express consent’ as:
“ ‘That directly given either [orally] or in writing. It is positive, direct, unequivocal consent, requiring no inference or implication to supply its meaning.’
“The following definition of ‘express’ is found in Words & Phrases, Vol. 15A, p. 522:
“ ‘ “Express” means “made known distinctly and explicitly, and not left to inference or implication; declared in terms; set forth in words; manifested by direct and appropriate language, as distinguished from that which is inferred from conduct.

354 So.2d at 10. Thus, the notations on the case-action-summary sheet, which do not unequivocally express that the parties agreed to extend the 90-day period for a ruling on the postjudgment motions, did not effectively extend the time for ruling on the motions under Rule 59.1. Therefore, the trial court’s May 2, 2005, amended judgment was a nullity, and the wife’s June 2005 appeal is an attempt to appeal from a void judgment, which will not support an appeal. Carter v. Hilliard, 838 So.2d 1062, 1064 (Ala.Civ.App.2002). Accordingly, the -wife’s appeal in case no. 2040789 is dismissed.

The wife’s appeal in case no. 2050276 must suffer the same fate. Although the wife argues that the trial court’s inadvertent failure to include language divorcing the parties in the May 2004 divorce judgment, our subsequent reinvestment of the trial court with jurisdiction to include that language, the trial court’s entry of its December 2005 nunc pro tunc order including the missing language in the divorce judgment, and her subsequent appeal from the December 2005 “judgment” cured any jurisdictional defect because, she asserts, the divorce judgment did not become final until the entry of the nunc pro tunc order in December 2005, she is incorrect.

“The object of a Rule 60(a)[, Ala. R. Civ. P.,] motion or a judgment nunc pro tunc is to make the judgment or the record speak the truth. Under Rule 60(a) a correction may be made by the trial court at any time.
“The trial court’s authority to enter a Rule 60(a) order or a judgment nunc pro tunc is not unbridled. It cannot be used to enlarge or modify a judgment or to make a judgment say something other than what was originally said. If the mistake involves an exercise of judicial discretion, any correction is beyond the scope of Rule 60(a) and should properly be effected under Rule 59(e) or Rule 60(b) [, Ala. R. Civ. P.]”

McGiboney v. McGiboney, 679 So.2d 1066, 1068 (Ala.Civ.App.1995) (citations omitted).

Chief Justice Torbert explained the proper application of Rule 60(a) in his special concurrence in Ex parte Continental Oil Co., 370 So.2d 953, 955-56 (Ala.1979):

“Although there is no precise delineation in the cases construing Rule 60(a) of the [Alabama Rules of Civil Procedure] or its federal counterpart as to what constitutes a ‘clerical mistake or error arising from oversight or omission,’ generally it can be said that the rule allows the correction of errors of a ministerial nature in order to reflect what was actually intended at the time of entry of the order. The rule contemplates the type of error associated with mistakes in transcription, alteration, or omission of any papers and documents — a mistake mechanical in nature which does not involve a legal decision or judgment. In re Merry Queen Transfer Corp., 266 F.Supp. 605 (E.D.N.Y.1967). In this respect it has been stated that:
“ ‘Rule 60(a) is concerned primarily with mistakes which do not really attack the party’s fundamental right to the judgment at the time it was entered. It permits the correction of irregularities which becloud but do not impugn it. To that end 60(a) permits, inter alia, reasonable additions to the record. In contrast, Rule 60(b) is concerned with changing a final judgment, etc. In such a case the moving party understandably shoulders a much heavier burden.’
“United States v. Stuart, 392 F.2d 60, 62 (3rd Cir.1968). Corrections involving an exercise of judicial discretion or judgment modifying or enlarging a judgment or order are beyond the purview of Rule 60(a) and should properly be effected under Rule 59(e) or 60(b). ‘Thus a motion under Rule 60(a) can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what was originally pronounced.’ Wright & Miller & Kane, Federal Practice & Procedure § 2854, at 149 (1973). This court has stated:
“ ‘The object of a judgment nunc pro tunc is not the rendering of a new judgment and the ascertainment and • determination of new rights, but is one placing in proper form on the record, the judgment that had been previously rendered, to make it speak the truth, so as to make it show what the judicial action really was, not to correct judicial errors, such as to render a judgment which the court ought to have rendered, in the place of the one it did erroneously render, nor to supply non-action by the court, however erroneous the judgment may have been.’
“Wilmerding v. The Corbin Banking Co., 126 Ala. 268, 273, 28 So. 640, 641 (1900).
“Since a correction pursuant to Rule 60(a) may be made at any time and on the trial court’s initiative, the rule should be cautiously applied to preserve the integrity of final judgments. Otherwise, the finality of a judgment would only be illusory since the possibility would exist of substitution of a new judgment for the original one at a later date. Therefore, it is essential that there be something in the record from which the mistake or error to be corrected may be gleaned. See Ex parte ACK Radio Supply of Georgia, 283 Ala. 630, 219 So.2d 880 (1969); Busby v. Pierson, 272 Ala. 59, 128 So.2d 516 (1961); Tombrello Coal Co. v. Fortenberry, 248 Ala. 640, 29 So.2d 125 (1947). Stated differently, the fact of mistake or error must be supported by the record of the proceedings. See Harris v. Harris, 256 Ala. 192, 54 So.2d 291 (1951).”

The trial court’s December 2005 nunc pro tunc order served only to correct the original defective divorce judgment to include the language actually divorcing the parties. That the omission of that language was a pure oversight is more than amply supported by the facts that the May 2004 judgment was identified as a final judgment- of divorce and that it addressed those matters typically addressed by a judgment of divorce. Accordingly, the December 2005 nunc pro tunc order related back to the original defective judgment; the time for taking an appeal ran not from the date of entry of the nunc pro tunc order, but instead from the date of entry of the original defective judgment. Faddis v. Woodward Iron Co., 276 Ala. 283, 285, 161 So.2d 486, 488 (1964). Because it was taken in December 2005, more than 42 days after the original judgment was entered in May 2004, the wife’s appeal in case no. 2050276 is untimely. See Rule 4(a)(1), Ala. RApp. P.

In light of our decision, we deny the husband’s motion to strike the reply brief submitted by the wife in case no. 2050276. Both parties request an attorney fee; those requests are denied.

2040789 — APPEAL DISMISSED.

2050276 — MOTION DENIED; APPEAL DISMISSED.

PITTMAN, J., concurs.

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

BRYAN, J., concurs in the result, with writing, which THOMPSON, J., joins.

MURDOCK, Judge,

concurring in the result.

It is with much reluctance that I concur in the result reached by the main opinion. It is my hope that our Supreme Court will take the opportunity, if one is presented to it, either to address anew the adequacy under Rule 59.1, Ala. R. Civ. P., of extension language of the nature utilized by the trial court in this case or at least to address the correctness of this court’s conclusion today that the specific language used by the trial court in this case was inadequate to satisfy the requirements for extending the 90-day period for ruling on postjudgment motions under that rule.

BRYAN, Judge,

concurring in the result.

To quote Justice Maddox’s dissent in Harrison v. Alabama Power Co., 371 So.2d 19, 21 (Ala.1979), “today’s decision [regarding case no. 2040789] is too technical, and therefore, unjust.” I agree with the rationale as stated in Justice Bolin’s special concurrence in State v. Redtop Market, Inc., 937 So.2d 1013, 1016 (Ala.2006), and posit that perhaps this case will present an opportunity for the Supreme Court of Alabama to revisit its overly technical interpretation of Rule 59.1, Ala. R. Civ. P., regarding the adequacy of language expressing consent to extend the 90-day period for ruling on a postjudgment motion. I concur in the result solely because I am constrained by the precedents and the decisions of the Supreme Court of Alabama. Quality Cas. Ins. Co. v. Ruben, [Ms. 2050042, April 14, 2006] — So.2d — , — (Ala.Civ.App.2006) (“[the Alabama Court of Civil Appeals] is bound by the precedents established by the Supreme Court of Alabama”); see also § 12-3-16, Ala. Code 1975.

THOMPSON, J., concurs.


author: PER CURIAM. BOLIN, Justice

text:
    Ex parte Denise D. HIGGINS. (In re Denise D. Higgins v. Ronnie Lynn Higgins).
    1051279.
    Supreme Court of Alabama.
    Sept. 15, 2006.
    J. Timothy Smith, Hoover, for petitioner.
   PER CURIAM.

WRIT DENIED. NO OPINION.

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

BOLIN, J., concurs specially.

BOLIN, Justice

(concurring specially).

See my special concurrence in State v. Redtop Market, Inc., 937 So.2d 1013 (Ala. 2006).