author: PARKER, Justice.

text:
    Ex parte Julie P. MARTIN. (In re Julie P. Martin v. John H. Martin III).
    1050430.
    Supreme Court of Alabama.
    Dec. 15, 2006.
    Donald M. Briskman and Elizabeth Barry Johnson, Mobile, for petitioner.
   PARKER, Justice.

Julie P. Martin (“the mother”) filed a petition for a writ of certiorari, asking this Court to review the decision of the Court of Civil Appeals upholding the decision of the Baldwin Circuit Court transferring custody of her minor child (“W.”) to the child’s father, John H. Martin III (“the father”). We reverse.

I. Background

A. Facts

The father and mother were married on April 26, 1986; they separated in July 2001; they were divorced on June 20, 2003. Three children were born of the marriage: W., born February 12, 1988, and two daughters, J., born September 6, 1991, and I., born June 1, 1994. The divorce judgment awarded full custody of all three children to the mother, and the father has never sought custody of J. and I. The mother is a full-time homemaker and mother; the father is the managing director and branch manager of an investment firm in Fairhope.

In the mid-1990s W. was diagnosed with attention-deficit/hyperactivity disorder, a mathematics disorder, and significant academic fluency problems. He also suffers from emotional and behavioral problems and has been in counseling with Robert E. Colclough, a licensed professional counsel- or, since 1997. He has attended a private academy in Daphne and has participated in the school’s learning-disabled program.

During the divorce proceedings in 2002-2003 and thereafter, W.’s problems became more severe. These problems included outbursts of rage; binge drinking; disobedience and disrespect toward his mother, including using foul language and storming out of the house when she tried to talk with him; violent actions such as the destruction of glass objects in the house and a remote control for a television; and cutting his sister’s pet fish in half with a pair of scissors. He has also expressed suicidal thoughts.

According to the mother, the father refuses to discipline W., and while she had custody the father exercised visitation only sporadically. From June 2003 (the date of the divorce) until January 2004, when W. went to live with the father, W. spent only one night with the father even though the father lives only 10 miles from the mother. The mother stated that in May 2004 the father promised his daughters he would attend their dance recital; instead, on the date of the recital he went to gamble in Biloxi, Mississippi.

The mother claims the father is a habitual gambler who frequently risks large sums of money. Although he currently denies he has a gambling addiction, before the divorce he wrote several letters acknowledging that he had a gambling addiction, and at one point he voluntarily admitted himself to a facility for treatment of a gambling addiction, but he did not complete the treatment program. After the father obtained temporary custody of W. in April 2004, the mother was very concerned about W.’s lack of supervision. She hired special investigators to follow the father. The investigators testified that they followed the father for 47 days and that on 30 of those days the father drove to Biloxi to gamble and was sometimes observed in a casino for as long as 10 consecutive hours betting up to $20,000 in a game. W. admitted that- while he has lived with the father, the father has often left the house on Friday and has not returned until Saturday. The father admitted that after he received temporary custody of W., he continued to go to Biloxi to gamble at least once a week and usually-more. He also admitted that, in addition to legal gambling, he engages in illegal gambling.

At a custody hearing on March 22, 2004, the father testified that he had recently had a “revelation” about gambling, and he vowed in court that he would never gamble again. On March 24, 2004, and on April 2, 2004, the trial court ordered the father not to gamble while W. was in his custody. However, the father continued to gamble as before, claiming that he thought the court’s order meant only that he was not to gamble while W. was in his presence and that his vow never to gamble meant only that he would not gamble until after he had finished teaching a financial seminar.

The mother also claims that the father has a drinking problem. The father testified that he quit drinking in 1998. However, the private investigators who followed the father testified that they observed him drinking alcoholic beverages in Biloxi and that at that time he was not only noticeably intoxicated but also drove a vehicle in an erratic and dangerous manner; he also was stopped by an employee at one casino, who expressed concern about his ability to drive. W. testified that he has continued to drink alcohol while he has been in his father’s custody. The mother believes the father will do nothing to discourage W. from drinking and that his own drinking habits send a message to W. that drinking is acceptable behavior.

The mother also claims the father is emotionally unstable. Mr. Colclough, who counseled the mother and father before their divorce, testified that the father is emotionally unstable, that he suffers from alcohol and gambling addictions, and that he has demonstrated bipolar characteristics and erratic, disoriented behavior. The mother claims the father’s emotional instability is further evidenced by the father’s testimony that the mother is “possessed” by demons because she attends an Anglican church, which the father believes is “a cult.”

The mother has asked the father to join her and W. in further counseling with Mr. Colclough, but the father told her, “I’d rather go to a [racial epithet deleted] dog fight than to meet with Bob Colclough.” The mother arranged for W. to continue counseling with Mr. Colclough, but during a session in November 2003 W. had an angry outburst in which he stated that he should be allowed to do whatever he wanted, cursed Mr. Colclough, and stormed out of the session. After that, W. refused to attend any further counseling sessions with Mr. Colclough.

The mother was then referred to Carol Maxym, Ph.D., a board-certified psychologist specializing in child psychology and the placement of troubled teens in residential treatment facilities. Dr. Maxym recommend that the mother enroll W. in the Second Nature Wilderness Program, a six-to eight-week program in Utah that provides intensive therapy to children in crisis. Dr. Maxym said that she had referred approximately 30 children to this program and that almost all of them had experienced dramatic improvement. The mother consulted Dr. Kendra LaConsay, a licensed psychologist in Daphne, and Mr. Colclough, both of whom agreed that having W. participate in the Second Nature Wilderness Program was the proper course of action. She also consulted the headmaster at the private academy W. was attending in Daphne, who assured her that he would cooperate with the Second Nature Wilderness Program and ensure that W. was able to keep up with his studies while he was in Utah. The mother sent W. to Utah to participate in the Second Nature Wilderness Nature Program on January 6, 2004.

B. Proceedings in the Trial Court

When the father learned that W. had been sent to Utah to participate in the Second Nature Wilderness Program, he secured an ex parte order from the Baldwin Circuit Court authorizing him to travel to Utah and bring W. back to Alabama. The father rented a private Lear Jet to travel to Utah. On January 9, 2004, a counselor for the Second Nature Wilderness Program telephoned the mother and told her that the father had appeared at the Utah site in a manic state demanding that W. be released to his custody. The following day W. was released to his father’s custody. On their return flight to Alabama they stopped in Las Vegas, Nevada, where the father visited several large casinos and gambled.

Thereafter, W. lived with the father except for rare occasions when the mother was allowed visitation with him in her house. On April 2, 2004, the trial court entered a handwritten order placing temporary custody of W. with the father. On July 20, 2004, the trial court entered a handwritten order placing permanent custody of W. with the father. The mother appealed.

The mother states in both her petition and her brief to this Court that W. has been arrested and has- continued to have emotional problems while he has been in the. father’s custody, but these events appear to have occurred after the mother filed her notice of appeal and, consequently, are not in the record.

C. Proceedings in the Court of Civil Appeals

On December 2,-2005, the Court of Civil Appeals affirmed, without opinion, the orders of the trial court. Martin v. Martin (No. 2031037), — So.2d - (Ala.Civ.App.2005) (table). Judge Murdock issued the no-opinion affirmance; Judge Crawley, Judge Pittman, and Judge Bryan concurred; and Judge Thompson dissented, without writing. The mother apparently did not file an application for rehearing in the Court of Civil Appeals.

D.Proceedings in the Supreme Court

The mother filed a petition for a writ of certiorari with this Court on December 14, 2005'. On August 16, 2006, this Court granted the petition. The mother filed a brief on August 30, 2006; the father has submitted nothing. On October 11, 2006, the case was submitted to this Court on the mother’s petition and brief.

II. Standard of Review

When evidence is presented ore tenus and the trial court “ ‘resolves conflicting questions of fact in favor of one of the parties, its findings will not be disturbed on appeal unless they were clearly erroneous or manifestly unjust.’ ” Lilly v. Palmer, 495 So.2d 522, 525 (Ala.1986) (quoting Scarbrough v. Smith, 445 So.2d 553, 555 (Ala.1984)). However; when the question presented on appeal is one of law, the ore tenus rule has no application. Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994). Likewise, “there is no presumption of correctness in the trial court’s application of the law to the facts.” Amie v. Conrey, 801 So.2d 841, 846 (Ala.Civ.App.2001).

III. Analysis

A. Custody

In Wood v. Wood, 333 So.2d 826 (Ala.Civ.App.1976), the Court of Civil Appeals stated that the basic principle that a child’s custody should not be changed unless there is .a strong showing that the change is necessary — i.e., the “changed circumstance doctrine”- — •

“is a rule of repose, allowing the child, whose welfare is paramount, the valuable benefit of stability and the right to put down into its environment those roots necessary for the child’s healthy growth into adolescence and adulthood. The doctrine requires that the party seeking modification prove to the court’s satisfaction that material changes affecting the child’s welfare since the most recent decree demonstrate that custody should be disturbed to promote the child’s best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. Frequent disruptions are to be condemned.”

338 So.2d at 828. This Court quoted the above language in Ex parte McLendon, 455 So.2d 863 (Ala.1984), and the McLen-don test for a change of custody after custody is awarded in a divorce judgment is that the noncustodial parent seeking a change in custody must demonstrate (1) that he is fit to be the custodial parent; (2) that material changes that affect the child’s welfare have occurred since the original award of custody; and (3) that the positive good brought about by the change in custody will more than offset the disruptive effect of uprooting the child.

Subsequent eases have made the burden of the noncustodial parent even heavier. Rich v. Rich, 887 So.2d 289 (Ala.Civ.App.2004), applied the McLendon burden to temporary changes of custody as well as permanent changes. Sexton v. Lambert, 611 So.2d 385 (Ala.Civ.App.1992), noted that the McLendon burden is “a very heavy burden.” 611 So.2d at 387. Klapal v. Brannon, 610 So.2d 1167 (Ala.Civ.App.1992), also described the McLendon burden as a “heavy burden” and added that the evidence in support of a modification of custody “must be so substantial as to disclose an obvious and overwhelming necessity for a change.” 610 So.2d at 1169. See also Whitfield v. Whitfield, 570 So.2d 700, 702 (Ala.Civ.App.1990); and Braswell v. Braswell, 460 So.2d 1339, 1341 (Ala.Civ.App.1984).

The handwritten order of the trial court dated April 2, 2004, placing temporary custody of W. with the father, reads:

“After hearing testimony and being presented with evidence at three hearings, 1/12/04, 3/16/04 & 3/22/04, this Court is ordering the custody of [W.] to be placed temporarily with the Plaintiff, John Martin. 1) The Court feels that material changes have occurred which affect the welfare of [W.]. These material changes were brought about by the Mother’s decision to send the child to a Wilderness Camp in Utah in Jan. 2) The Court feels that John Martin has demonstrated his fitness to be the custodial parent. 3) The Court further believes the positive good brought about by the change in custody will more than offset any disruptive effect of uprooting the child. The Deft., Julie Martin, is to have visitation with the child every Monday from 6 pm to 6 am Tuesday and every other weekend beginning 4-2-04. It is further ordered that neither party will engage in any gambling, use of alcohol or controlled substances and will not cohabit with an adult of the same or opposite sex while [W.] is in their custody and control. Hearing on permanent custody is set June 29-04 (9 am). All other motions are denied.”

The handwritten order of the trial court dated July 20, 2004, placing permanent custody of W. with the father, reads:

“Hearing on Permanent Change of Custody concluded with evidence at numerous hearings beginning 1/12/04. The Court is ordering there be a change in the custody of [W.]. The Plaintiff father and Deft Mother, will have joint custody of [W.], with the Plaintiff father being the custodial parent and the Defendant Mother having standard visitation; which is proceeding now. Plaintiff father may reduce the child support he is now ordered to pay to the Deft. Mother by $1000.00 per month, retroactive to May 04. The Court feels that material changes have occurred which affect the Welfare of [W.]. These material changes were brought about by the Deft. Mother’s decision to send [W.] to a Wilderness Camp in Utah in Jan. of this year, when less drastic measures could have been tried. Also the Deft. Mother’s placement of the Child under surveilance [sic] by Private Investigators has further eroded the trust necessary for a successful relationship between a parent and a teenage son. The Court feels that John Martin has demonstrated his fitness to be the custodial parent. The Court further believes the positive good brought about by the change in custody will more than offset any disruptive effect of uprooting the Child. It is further ordered that neither party will engage in any gambling, use of alcohol or nonpres-cribed controlled substances and will not cohabit with an adult of the same or opposite sex while [W.] is in their custody and control. Plaintiff and Defendant are to advise the other of any upcoming events in which [W.] will participate. Neither parent is [to] speak unfavorably of the other in the Child’s presence. All other motions which have been filed to date are denied.”

On the surface, the trial court recites language that indicates that it is applying the McLendon test. However, this Court cannot agree that the McLendon test, properly applied, leads one to the conclusion that the mother’s decision to send W. to a licensed wilderness-treatment program is a material and detrimental change of circumstances affecting the child’s welfare or that the father is a fit custodial parent in light of the testimony about his drinking and gambling.

Furthermore, this Court notes once again that the McLendon burden is “a very heavy burden.” Sexton v. Lambert, 611 So.2d at 387. We also note that the evidence in support of a modification of custody must be substantial and must demonstrate an overwhelming necessity for a change, as required by Klapal v. Brannon, 610 So.2d at 1169. Accordingly, we reverse the trial court’s order placing custody of W. with the father and remand the case to the trial court with instructions to enter an order placing W. in the custody of his mother.

B. Attorney Fees and Child Support

The mother contends that the trial court erred in refusing to order the father to pay the mother’s attorney fees and the other costs she incurred in defending against his motion for a change of custody. “An attorney fee is ordinarily available in a modification proceeding because it is merely an extension of the original divorce action, and such a fee may be awarded without a finding of contempt.” Conrey, 801 So.2d at 847. In awarding an attorney fee, it is appropriate to consider the “earning capacity of the parties” and “the financial circumstances of the parties,” 801 So.2d at 847, as well as the fact that the mother here has “no skills that would assist her in acquiring an estate large or small.” Burgess v. Burgess, 54 Ala.App. 396, 400, 309 So.2d 107, 110 (Civ.1974). The court should also consider the fact that “the litigation in this case was both protracted and contentious,” Brasfield v. Brasfield, 679 So.2d 1091, 1095 (Ala.Civ.App.1996), and that the mother was compelled to file numerous contempt motions and other motions concerning the case, Deas v. Deas, 747 So.2d 332, 337-38 (Ala.Civ.App.1999).

The trial court’s award of attorney fees to the father and the reduction of child support to be paid by the father to the mother were based upon the father’s having prevailed on the custody issue. However, the father is no longer the prevailing party. We therefore reverse the judgment of the trial court on the child-support and attorney-fee issues and remand the cause for further proceedings on those issues consistent with this opinion.

IV. Conclusion

The trial court’s rulings granting the father custody constitute a clearly erroneous application of the law to the facts; these rulings are hereby reversed and the case remanded with instructions to enter an order denying the father’s motions for a change of custody and returning custody to the mother and to further consider the award of attorney fees and the issue of child support.

REVERSED AND REMANDED.

SEE, HARWOOD, WOODALL, SMITH, and BOLIN, JJ., concur.

NAJBERS, C.J., and STUART, J., concur in the result.

LYONS, J., recuses himself.


source: Caselaw Access Project

author: MURDOCK, Judge.

license: Public Domain

text:
    Julie P. MARTIN v. John H. MARTIN III.
    2031037.
    Court of Civil Appeals of Alabama.
    Jan. 12, 2007.
    E. Barry Johnson of Johnston Barton Proctor & Powell, LLP, Birmingham; and Donald M. Briskman, Mobile, for appellant.
   After Remand from the Alabama Supreme Court

MURDOCK, Judge.

This court affirmed the trial court’s judgment, without an opinion. Martin v. Martin, (No. 2031037, Dec. 2, 2005) — So.2d - (Ala.Civ.App.2005) (table). This court’s judgment has been reversed and the cause remanded by the Supreme Court of Alabama. Ex parte Martin, 961 So.2d 83 (Ala.2005). On remand to this court, and in compliance with the Supreme Court’s opinion, the judgment of the trial court is hereby reversed and the cause is remanded for the entry of a judgment consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

CRAWLEY, P.J., and THOMPSON, PITTMAN, and BRYAN, JJ., concur.


author: NABERS, Chief Justice.

text:
    Ronnie REED v. STATE of Alabama ex rel. Kenneth E. DAVIS, district attorney for Russell County.
    1051043.
    Supreme Court of Alabama.
    Dec. 22, 2006.

      Raymond L. Jackson, Jr., and Scott R. Crouse of Jackson Law Group, P.C., Auburn, for appellant.
    Sidney G. (Buster) Landreau, chief deputy district atty., for appellee.
   NABERS, Chief Justice.

Ronnie Reed was removed from the office of county commissioner of Russell County, district four, by an order of the Russell Circuit Court on April 20, 2006. Reed appeals. We affirm.

I. Facts

Reed was elected as the commissioner for Russell County, district four; he took office on November 12, 2004. At the time of his election and continuing for more than one year after he assumed office, Reed was a convicted felon. During the fall of 2005 Reed became aware of rumors circulating in the community that his criminal past had been uncovered. Reed then began the process to obtain a pardon in the State of Georgia. In November 2005 the district attorney for Russell County presented documents to the presiding circuit judge .of the Russell Circuit Court, Albert Johnson, indicating that Reed had been convicted of a felony in 1975 and that he had not been pardoned for that conviction.

On December 13, 2005, Judge Johnson issued an order, in accord with Code of Alabama 1975, § 6-6-591 et seq., directing the district attorney for Russell County, Kenneth E. Davis, to file a quo warranto action against Reed (case no. CV-05-492). On December 21, 2005, Reed was pardoned by the State of Georgia for his 1975 felony conviction for burglary. On December 22, 2005, before the district attorney had complied with Judge Johnson’s order, a private citizen, Gerald Kite, filed a quo warranto action against Reed. Kite’s action was assigned case no. CV-05-513; upon Kite’s dismissal as a party, the district attorney, proceeding for the State, was substituted as the plaintiff, the case files in case no. CV-05-513 and case no. CV-05-492 were merged, and case no. CV-05-492 was dismissed. On December 28, 2005, Judge Johnson entered an order recusing himself and all other Russell County circuit judges from hearing the case. On January 6, 2006, Brady E. Mendheim, a district judge in Houston County, was assigned to hear the ease against Reed.

On February 13, 2006, relying on Judge Johnson’s previous order, Judge Men-dheim ordered District Attorney Davis to proceed with a quo warranto action against Reed. The State filed an amended complaint in case no. CV-05-513 and then filed a request for admissions. The State filed a motion for a summary judgment, which was argued before Judge Mendheim on March 31, 2006. On April 20, 2006, the State’s motion for a summary judgment was granted, and an order was entered removing Reed from office. Reed appealed.

II. Standard of Review

A summary judgment is afforded no presumption of correctness on appeal and is subject to a de novo review. “[0]n appeal, a summary judgment carries no presumption of correctness.” Hornsby v. Sessions, 703 So.2d 932, 938 (Ala.1997).

“ ‘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 the trial court made out a genuine issue of material fact,’ and whether the movant was entitled to a judgment as a matter of law.”

Ex parte General Motors Corp., 769 So.2d 903 (Ala.1999)(quoting Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988)).

“[WJhere the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the court’s judgment carries no presumption of correctness .... Because no material facts are disputed and this appeal focuses on the application of the law to the facts, no presumption of correct[ness] is accorded to the trial court’s judgment. Therefore, we review de novo the application of the law to the facts of this case.”

Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996) (citations omitted).

III. Discussion

A. Was quo warranto the proper form of action given Reed’s pardon ?

Reed’s first argument on appeal is that quo warranto was an improper form of action in this case because, he says, his pardon in Georgia cured any statutory impediments to his holding elective state office. Alternatively, Reed argues that the proper method to test the right to hold an elective state office is under Alabama’s election-contest statute, Ala.Code 1975, § 17-15-1 et seq.

Alabama’s quo warranto statute, Ala. Code 1975, § 6-6-591, provides, in pertinent part:

“(a) An action may be commenced in the name of the state against the party offending in the following cases:
“(1) When any person usurps, intrudes into or unlawfully holds or exercises any public office, civil or military, any franchise, any profession requiring a license, certificate, or other legal authorization within this state of any office in a corporation created by the authority of this state;
“(2) When any public officer, civil or military, has done or suffered any act by which, under the law, he forfeits his office;
“(b) The judge of the circuit court may direct the action to be commenced when he believes that any of the acts specified in subsection (a) of this section can be proved and it is necessary for the public good, or it may be commenced without the direction of such judge on the information of any person giving security for the costs of the action, to be approved by the clerk of the court in which the action is brought.
“(c) An action under this section must be commenced in the circuit court of the county in which the acts are done or suffered.... ”

The foregoing provisions must be read in conjunction with Ala.Code 1975, § 36-2-1(a), which provides, in part:

“(a) The following persons shall be ineligible to and disqualified from holding office under the authority of this state:
“(1) Those who are not qualified electors, except as otherwise expressly provided;
“(3) Those who shall have been convicted of treason, embezzlement of public funds, malfeasance in office, larceny, bribery or any other crime punishable by imprisonment in the state or federal penitentiary and those who are idiots or insane.... ”

The plain reading of § 36-2-1 (a)(3) is that a person convicted of a crime punishable by imprisonment in the state penitentiary is ineligible to hold state office. In interpreting a predecessor statute to § 36-2-1 (a)(3), this Court held that." ‘ineligible’ ... means inelectable — that is, not capable of being chosen — -and hence the qualifications enumerated relate to the date of election, and not merely to the date of actual induction into office.— Finklea v. Farish, 160 Ala. 230, 237, 49 So. 366[, 368 (1909) ].” Shepherd v. Sartain, 185 Ala. 439, 446, 64 So. 57, 61 (1913).

In State ex rel. Sokira v. Burr, 580 So.2d 1340 (Ala.1991), this Court held that a convicted felon who has been pardoned before being elected to and assuming public office was eligible to hold elected office in Alabama. However, that is not the issue presented in this case. In this case Reed had not been pardoned, when elected, of the felony he had been convicted of. Reed remained unpardoned when he assumed office, and under § 36-2-1(a)(3) he was ineligible to seek or assume that office.

This finding that Reed was ineligible to seek or to hold office leads to an examination of the quo warranto statute to determine whether that statute provides the proper procedural method by which to remove Reed from office. Section 6-6-591(a)(1) provides that an action may be brought on behalf of the State “[w]hen any person usurps, intrudes into or unlawfully holds or exercises any public office.... ”

To “usurp” is to seize unlawfully and assume another’s position, office, or authority. See, e.g., Black’s Law Dictionary 1580 (8th ed.2004). Although Reed argues that the quo warranto statute should be used in “snapshot” fashion, focusing on a particular instant in time when the facts were most favorably disposed toward him, “usurp” clearly indicates that the disqualifying circumstance attaches when it arises and that it is continuing in nature. See, e.g., Shepherd, supra. Reed’s usurpation of office occurred when he assumed an office he was ineligible to hold. By assuming that office he usurped the right of a legally qualified candidate to do so. Reed did not reveal his felony conviction and thereby Reed denied the electors of Russell County the right to make a choice from among a slate of legally qualified candidates. Having usurped his office initially, Reed’s usurpation continued for the entire one-and-one-half-year term he served before he was removed from office, because during that entire term he deprived someone else who was lawfully entitled to the office at the time of the election from holding it.

Reed argues, however, that when this action was filed he had been pardoned and that he was therefore qualified to continue to hold the office of county commissioner. Reed contends that Reed v. Board of Trustees for Alabama State University, 778 So.2d 791 (Ala.2000), supports his contention that his pardon “cured” his ineligibility to hold office. Reed involved a dispute relating to the eligibility to hold office of someone appointed by the governor to the Board of Trustees for Alabama State University. The governing statute, § 16-50-20(a), provided that “ ‘[n]o member of the governing board or employee or student of any public post-secondary institution ... shall be eligible to serve on the board [of trustees for Alabama State University].’ ” Reed, 778 So.2d at 793 (emphasis omitted). Parker, who served on the Board, had during part of her service on the Board been employed at another post-secondary educational institution, but had resigned that position before the challenge to her service on the Board of Trustees for Alabama State was filed. This Court recognized that Parker had “sometime served on the Board in violation of § 16-50-20(a)” but found that her resignation from the other postsecondary institution had cured her disqualification. The Court found that under the specific language of the statute, Parker may have been ineligible to serve while she was employed at the other institution, but she was not ineligible for appointment to the Board. The Court stated that “the disability ... does not attach to the appointment, but merely follows the Board member’s service.” 778 So.2d at 794. As we have discussed above, our cases hold that a person disqualified from holding public office pursuant to § 36-2-1(a)(3) is ineligible to seek as well as to hold that office; thus, the disability created by § 36 — 2—1 (a) (3) attaches at the inception of holding that office and cannot, with reference to that term of office, be cured thereafter. Reed did not involve elected public office under § 36-2-l(a)(3), and it is not controlling here.

It is the settled law of this State that a quo warranto proceeding is the proper remedy to determine whether a party is usurping a public office. See, e.g., Talton v. Dickinson, 261 Ala. 11, 72 So.2d 728 (1954). This Court has also stated that “[i]t is well established that the remedy [of quo warranto] lies to challenge a person’s right to hold office based on grounds of ineligibility.” State ex rel. James v. Reed, 364 So.2d 303, 305 (Ala.1978). We find that quo warranto was the proper form of action on the facts of this case.

B. Was the quo warranto action properly prosecuted?

Reed’s second argument relates to the method by which the quo warranto action was prosecuted. Reed contends that Judge Johnson’s December 13, 2005, directive to the district attorney to bring a quo warranto action against Reed was in error or, alternatively, that it was not binding because of Judge Johnson’s subsequent recusal from hearing the action. Section 6-6-591(b) provides that the circuit judge “may direct the action to be commenced when he believes that any of the acts specified in subsection (a) of this section can be proved and it is necessary for the public good.” This directive is to be given to the district attorney before the action is commenced and may be entered by any circuit judge with jurisdiction. There is no statutory requirement that the circuit judge who has given the directive to take action be the same judge to whom the case is assigned for trial. There is also no statutory authority, and Reed has cited no other authority, for his contention that Judge Johnson’s directive to the district attorney was, as a matter of law, made void, or became voidable, as a result of his subsequent recusal. As this Court has previously stated, it is not the duty of an appellate court to perform a party’s legal research, Spradlin v. Birmingham Airport Auth., 613 So.2d 347 (Ala.1993), nor is this Court obligated “to make and address legal arguments for a party based on un-delineated general propositions not supported by sufficient authority or argument.” Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994).

Reed also contends that Judge Johnson did not make an affirmative finding that the filing of the action was “necessary for the public good.” This argument is without merit. The statute provides that the circuit judge may direct commencement of the action when “he believes” the action “necessary for the public good.” Judge Johnson, in his order of December 13, 2005, demonstrated familiarity with the facts upon which he based his order directing the district attorney to proceed against Reed. Judge Johnson’s order of December 13, 2005, stated, in part, as follows:

“The Court having been informed that the Russell County District Attorney’s office is in possession of certain documents indicating that Russell County Commissioner Ronnie Reed is a convicted felon, and upon examination of those documents, the Court is of the opinion that it can be proven that Ronnie Reed is a convicted felon and unlawfully holding office. Pursuant to Alabama Code Section 6-6-591 et seq. the District Attorney for Russell County is ordered to file an action in the nature of Quo War-ranto against Russell County Commissioner Ronnie Reed.”

(Emphasis added.)

There is no requirement in the statute for a specific finding that the filing of an action is necessary for the public good, and the facts as stated in Judge Johnson’s order certainly show Judge Johnson’s awareness and belief that bringing such an action was necessary for the public good. Moreover, Judge Mendheim, in an order dated February 14, 2006, found that Judge Johnson’s order “necessarily implies a judicial determination that the ‘public good’ is at issue. Ala.Code [1975,] § 6—6—591(b). The allegation in the present ease that a public office is held by a person not entitled to that office clearly involved the ‘public good.’ ” (Emphasis added.)

Reed argues that the entry of Judge Johnson’s December 13, 2005, order deprived him of his right to confront witnesses against him. Reed argues that he was not able to rebut the finding of probable cause implicit in the order. The determination required of the judge before commencement of a quo warranto action represents a preliminary determination of a factual basis of public necessity for commencing the quo warranto action. Judge Mendheim, in his order removing Reed from office, stated:

“The clear language of § 6-6-591 (b) states that the determination of the ‘public good’ rests with the judge at the initiation of a quo warranto proceeding. It is a preliminary determination by the judge that the case is not a wholly private concern.... The ‘public good’ is not an element of the claim for the [State] to prove at trial.”

Judge Mendheim correctly determined that the finding of public good is not part of any element of the offense to be tried. The proof the State was required to produce at trial to remove Reed from office is set forth in Ala.Code 1975, § 6-6-600, which states:

“When a defendant, whether a natural person or corporation, against whom such action has been commenced, is adjudged guilty of usurping or intruding into, or unlawfully holding or exercising, any office or franchise or unlawfully practicing any profession, judgment must be entered that such defendant be excluded from the office.... ”

The State was thus required to prove that Reed usurped, intruded into, or unlawfully held a public office. Reed does not contend, and the record does not demonstrate, that he was prevented from presenting a defense as to each element of the State’s case as set forth in § 6-6-600.

Reed also argues that the quo warranto action against him was, in fact, a private action. Reed’s contention is without merit. The State, at the direction of the trial court, intervened in the private action brought by Kite. Kite was dismissed as a party, and the State then filed an amended complaint. The case proceeded solely as a State action against Reed. Reed had notice of the allegations against him and, as evidenced by the record, mounted a vigorous defense, with the aid of able counsel.

C. Is Alabama’s statutory framework for removing a person from office unconstitutional ?

Reed contends that Alabama’s statutory framework for removing a person from public office based on a felony conviction is unconstitutional because, he says, it is disproportionately applied to African-American males. In footnote 7 to his initial brief to this Court Reed states:

“Reed, an African American male, also argues that Code of Alabama (1975) § 36-2-l(a)(3) is unconstitutional in that it disproportionately disenfranchises African American males in Alabama. In Alabama, 6.4% of the total population are disenfranchised, while 14% of African Americans are disenfranchised, according to www.righttovote.org. Approximately, one third of all African American males of voting age are disenfranchised in Alabama. Chisun Lee, ‘Political Prisoners: Minorities Struggle to Break Free of Felon Voting Bans,’ The Village Voice (Oct. 12, 2004).”

Reed does not show with particularity how this statistical compilation relates to the facts of this case. Those facts show that Reed was convicted of a felony in the State of Georgia nearly 30 years ago. Reed did not seek a pardon to have the consequences of that conviction removed until he learned that he might be removed from office because of the conviction. Reed does not show that any statute, constitutional provision, or instrumentality of the State of Alabama in any way blocked or prohibited him from seeking a pardon in Georgia at any time before he was elected to public office. Reed’s ineligibility to hold public office was the result of his own inaction over nearly three decades; it was not the result of any constitutional infirmity arising from the Alabama statute that establishes who is eligible to hold public office in this state.

IV. Conclusion

Our de novo review of the record supports the judgment of the trial court removing Reed from the office of county commissioner for district four in Russell County. Accordingly, that judgment is affirmed.

AFFIRMED.

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

      . Reed was convicted of burglary, a felony, in the State of Georgia, on June 13, 1975. He was sentenced to five years imprisonment but was placed on probation. Reed successfully completed his term of probation.

      . Reed also cites, as authority for his position, a line of Idaho cases that stand for the general proposition that "quo warranto proceedings refer to the ‘conditions that exist at the time the action is brought.' ” People ex rel. Neilson v. Wilkins, 101 Idaho 394, 396, 614 P.2d 417 (1980). We find Neilson, which involved a residency issue, to be distinguishable from this case, and we therefore decline to adopt its holding. Neilson also seems to be in conflict with the factually similar Alabama case of Seals v. State ex rel. Matthews, 164 Ala. 582, 51 So. 337 (1910). However, were we to adopt Neilson, given our analysis of this case, there would be no basis for relief for Reed because we have determined that his ineligibility is continuing in nature and was a “condition” in existence "at the time the action was brought.”

      . Having determined that quo warranto is a proper form of action to test Reed’s eligibility to hold office, we do not reach the issue whether an election contest might also have been an appropriate remedy.


author: SEE, Justice.

text:
    PINKERTON SECURITY AND INVESTIGATION SERVICES, INC. v. Alan CHAMBLEE, as administrator of the estate of Troy Chamblee, and Tony Jackson.
    1051138.
    Supreme Court of Alabama.
    Dec. 22, 2006.

      Gregg L. Smith, Birmingham, for appellant.
    Myron K. Allenstein and Rose Marie Allenstein of Allenstein & Allenstein, LLC, Gadsden, for appellees.
   SEE, Justice.

Pinkerton Security and Investigation Services, Inc. (“Pinkerton”), seeks review of the trial court’s summary judgment in favor of Troy Chamblee and Tony Jackson. The trial court granted Chamblee and Jackson’s summary-judgment motion on the ground that the court did not have jurisdiction to hear Pinkerton’s independent action brought under Rule 60(b), Ala. R. Civ. P. We hold that the trial court erred in entering the summary judgment in favor of Chamblee and Jackson, because it lacked jurisdiction to entertain the Rule 60(b) motion. We further state that Pinkerton has exhausted its remedies under Rule 60(b); therefore, we dismiss the appeal.

Facts and Procedural History

In 2000, Chamblee and Jackson, at one time employees of Pinkerton, separately sued Pinkerton in the Jefferson Circuit Court, arguing, among other things, that during the hiring process, Pinkerton had fraudulently misrepresented to them the medical-insurance coverage available to Pinkerton employees. The cases were consolidated and tried before a jury. In July 2003, the jury returned a verdict in favor of Chamblee and Jackson and the trial court entered judgments on the jury’s verdict. On July 28, 2003, Pinkerton moved for a judgment as a matter of law under Rule 50, Ala. R. Civ. P.

On September 11, 2003, the trial court held a hearing on Pinkerton’s Rule 50 motion. At the conclusion of the hearing, the trial court told the parties that they had two weeks to try to settle the matter, after which the judge would call one party and ask for a draft of a proposed order. On September 24, 2003, the trial judge contacted Pinkerton, informed it that he had decided to enter a judgment as a matter of law for Pinkerton, and asked Pinkerton to prepare a proposed order. The next day, on September 25, 2003, Pinkerton provided the proposed order to the trial court. The trial court did- not contact Chamblee or Jackson to inform them of the decision, nor did the judge enter the decision into his bench notes or on the case-action-summary sheets.

In November 2003, the trial court entered an order granting Pinkerton’s motion for a judgment as a matter of law. Chamblee and Jackson wrote the trial court, arguing that it was without jurisdiction to grant Pinkerton’s motion because the motion had been denied as a matter of law under Rule 59.1, Ala. R. Civ. P., 90 days after Pinkerton had filed the motion. When the trial court did not respond, Chamblee and Jackson petitioned for a writ of mandamus, asking this Court to direct the trial court to rescind its November order.

In January 2004, Pinkerton moved to amend the record under Rule 60(a), Ala. R. Civ. P., to show that on September 24, 2003, the court had contacted Pinkerton to tell it that the court was granting Pinkerton’s motion and to ask it to draft a proposed order. Pinkerton also asked the trial court to amend the record to show that Pinkerton provided the trial court with the requested order the next day. Chamblee and Jackson filed written objections. The trial court held a hearing on the matter and entered an order amending the record as requested.

"On September 24, 2003, the Court informed counsel for [Pinkerton] that the Court was granting [Pinkerton’s] motion for a judgment as a matter of law which had been filed on July 28, 2003. The Court specifically instructed counsel for [Pinkerton] to draft a proposed Opinion and Order stating the grounds which the Court found for the granting of said motion. The Court received the proposed Opinion and Order on September 25, 2003. Due to an oversight, the Court failed to make entries on the case action summary sheets of each matter identifying the action taken by the Court. This clerical error is due to be corrected.”

We Consolidated Chamblee’s and Jackson’s petitions, and in Ex parte Chamblee, 899 So.2d 244 (Ala.2004), we granted Chamblee’s and Jackson’s consolidated petitions for a writ of mandamus, declaring the November 2003 order void because Pinkerton’s Rule 50 motion had been denied as a matter of law on October 26, 2003, 90 days after the motion was filed. Thus, the trial court was without jurisdiction to enter the November 2003 order. 899 So.2d at 249. We further ordered the trial court to vacate its order altering the record and to remove any changes that might have been made to the record pursuant to that order. 899 So.2d at 249.

In December 2004, after this Court’s decision in Chamblee, Pinkerton filed its first Rule 60(b), Ala. R. Civ. P., motion for relief from the July 2003 judgments, arguing that the judgments were based on “mistake, inadvertence, surprise, or excusable neglect.” Rule 60(b)(1), Ala. R. Civ. P. The trial court held a hearing on the motion, and at the hearing Pinkerton also argued that relief might be proper either under Rule 60(b)(1) or under Rule 60(b)(6). The trial court denied Pinkerton’s Rule 60(b) motion on the ground that it did not have jurisdiction to entertain it. The trial court based its decision on our statement in Chamblee that the trial court’s jurisdiction over the cases had expired 90 days after Pinkerton had filed its motion for a judgment as a matter of law. 899 So.2d at 247.

In January 2005, Pinkerton filed a second Rule 60(b) motion, again seeking relief from the July 2003 judgments, but this time citing only Rule 60(b)(6) and addressing the issue of the trial court’s jurisdiction to rule on the Rule 60(b) motion. The trial court denied this second Rule 60(b) motion, again citing lack of jurisdiction. Pinkerton appealed the denial of its second motion. The Court of Civil Appeals dismissed the appeal, stating that Pinkerton’s second motion was a successive Rule 60(b) motion based on the same grounds as the first and that the trial court did not have jurisdiction to consider it. Pinkerton Sec. & Investigations Servs., Inc. v. Chamblee, 934 So.2d 306 (Ala.Civ.App.2005) (“Pinkerton I”). The Court of Civil Appeals found that because the trial court lacked jurisdiction the trial court’s denial of the motion was a void judgment, which cannot support an appeal. Therefore, the Court of Civil Appeals concluded, it also lacked jurisdiction to consider the trial court’s ruling on the motion. 934 So.2d at 391 (Ala.Civ.App.2005).

In February 2005, Pinkerton filed a third Rule 60(b) motion, this time as an independent action before a different trial judge (“the second action”). Pinkerton again sought relief from the July 2003 judgments. Chamblee and Jackson moved to dismiss and later amended the motion to call it a “motion to dismiss or, in the alternative, motion for summary judgment,” arguing lack of jurisdiction, res ju-dicata, failure to state a claim, collateral estoppel, and waiver. The trial court in the second action entered a summary judgment against Pinkerton and in favor of Chamblee and Jackson, stating that the second action, like Pinkerton’s second Rule 60(b) motion before the first trial court, was an impermissible successive Rule 60(b) motion and, therefore, that the trial court in the second action, like the trial court in the first action, did not have jurisdiction to hear the motion. Because it seeks equitable relief and the amount involved is more than $50,000, Pinkerton now appeals the summary judgment directly to this Court,

Standard of Review

We review a summary judgment and all questions of law de novo. Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342 (Ala.2006).

Analysis

Pinkerton’s appeal of the summary judgment in favor of Chamblee and Jackson on the ground that the trial court lacked jurisdiction to enter it raises two issues for this Court. First, whether the trial court in fact lacked jurisdiction over Pinkerton’s second action brought under Rule 60(b). Second, if the trial court indeed lacked jurisdiction, whether the summary judgment was proper on that ground. We answer the first question in the affirmative and hold that the trial court in the second action lacked jurisdiction over Pinkerton’s Rule 60(b) motion. We answer the second question in the negative and hold that a trial court cannot properly enter a summary judgment, even one entered on the basis of lack of jurisdiction, when it lacks jurisdiction over the action.

Jurisdiction

The trial court stated that it lacked jurisdiction over the second action because it was an impermissible successive motion under Rule 60(b). We agree.

Rule 60(b) was adopted to allow a trial court to give equitable relief from a final judgment “even after the normal procedures of motion for new trial and appeal are no longer available.” Rule 60, Ala. R. Civ. P., Committee Comments .on 1973 Adoption. There are six reasons a trial court grants relief under Rule 60(b):

“(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence ...; (3) fraud- ..., misrepresentations, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged or a prior judgment on which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.”

Rule 60(b), Ala. R. Civ. P.

In Giles v. Giles, 404 So.2d 649, 651 (Ala.1981), we held that the Alabama Rules of Civil Procedure were designed to give “some flexibility, particularly in an effort to do what is right and just.” “[T]rial courts usually have wide discretion in determining whether to grant Rule 60(b) motions, but that discretion is not unbridled.” 404 So.2d at 651. The trial courts “must balance the desire to remedy injustice against the need for finality of judgments.” Rule 60, Committee Comments on 1973 Adoption.

Keeping this balance between equity and finality in mind,- Alabama courts have clearly and consistently held that postjudgment motions are not to be used as a substitute for appeal. Transcall American, Inc. v. Comtel-Birmingham, Inc., 571 So.2d 1051, 1052 (Ala.1990); Ex parte Dowling, 477 So.2d 400, 404 (Ala.1985); Pinkerton I, supra; Ex parte Tampling Tile Co., 551 So.2d 1072, 1075 (Ala.Civ.App.1989). Successive Rule 60(b) motions brought on the same grounds are impermissible because they are “generally considered motions to reconsider the original ruling and are not authorized by Rule 60(b).” Wadsworth v. Market Ins. Co., 906 So.2d 179, 182 (Ala.Civ.App.2005). A motion to reconsider the trial court’s denial of a postjudgment motion is barred because after the denial the trial court loses jurisdiction over the action. Ex parte Allstate Life Ins. Co., 741 So.2d 1066, 1070 (Ala.1999); see also Ex parte Jordan, 779 So.2d 183, 184 (Ala.2000); Ex parte Vaughan, 539 So.2d 1060, 1061 (Ala.1989); Dowling, 477 So.2d at 404.

Thus, “ ‘when a post-judgment motion is denied, the review of that denial is by appeal, not by a motion to reconsider.’ ” Ex parte Mutual Sav. Life Ins. Co., 765 So.2d 649, 651 (Ala.1998) (quoting McAlister v. Deatherage, 523 So.2d 387, 389 (Ala.1988)). Because Pinkerton’s second action is its third request for post-judgment relief under Rule 60(b), we must determine whether the second action is in the nature of a motion to reconsider and is therefore an impermissible successive action over which the trial court does not have jurisdiction.

In its first Rule 60(b) motion, Pinkerton argued that it was entitled to relief under Rule 60(b)(1) because that court had failed to enter an order granting Pinkerton’s motion for a judgment as a matter of law before the expiration of the 90-day pen-dency period; that failure, Pinkerton alleged, qualified as “mistake, inadvertence, surprise, or excusable mistake.” At the hearing on the motion, Pinkerton also argued that it might qualify for relief under Rule 60(b)(6). Pinkerton submitted a legal memorandum in support of its argument for relief under Rule 60(b)(6). The trial court denied Pinkerton’s motion on the ground that it lacked jurisdiction to entertain the motion.

Pinkerton did not appeal that denial. Instead, it filed a second Rule 60(b) motion, in the same trial court, this time seeking relief under only Rule 60(b)(6) and addressing the issue of the trial court’s jurisdiction over the motion. We conclude that this second motion operated as a motion to reconsider. Pinkerton’s second motion sought relief on the same ground as the first, namely that Pinkerton should not suffer for the first trial court’s failure to timely enter the order granting Pinkerton’s motion for a judgment as a matter of law. In both motions, Pinkerton cited Rule 60(b)(6) as the basis for relief.

By raising the issue of jurisdiction in the second motion, Pinkerton essentially asked the trial court to reconsider its decision on the first motion that it lacked jurisdiction. Therefore, the second motion was an impermissible successive Rule 60(b) motion, and the trial court correctly concluded that it lacked jurisdiction to entertain that second motion. For the same reason, Pinkerton’s second action, which seeks relief for a third time on the same ground Pinkerton has asserted twice before, is barred. The trial court hearing the second action correctly concluded that it did not have jurisdiction to entertain the second action.

Under the well-established principle of law that a judgment rendered by a court that lacks jurisdiction is a nullity, it would appear that the original trial court’s denial of Pinkerton’s first Rule 60(b) motion was improper because the trial court purported to deny that motion after the trial court had determined that it lacked the jurisdiction to entertain the motion.

It is true that had that trial court initially dismissed Pinkerton’s Rule 60(b) motion without prejudice rather than denying it, Pinkerton would have had the option to appeal that dismissal on the question of jurisdiction or, alternatively, to bring the Rule 60(b) motion again in a court of competent jurisdiction; however, Pinkerton did not take either of these actions. Instead, it brought a second Rule 60(b) motion before the same trial court, arguing that the trial court did, in fact, have jurisdiction. In doing so, Pinkerton violated the policy against filing a successive Rule 60(b) motion, which is not to be used as a substitute for an appeal or as a motion for reconsideration.

In addition, after Pinkerton lost on appeal to the Court of Civil Appeals from the denial of its second Rule 60(b) motion, it did not appeal to this Court but instead attempted to start the process over by filing a third Rule 60(b) motion as an independent action. Rule 60(b) is not designed or intended to allow parties to circumvent the appeal process and to drag out litigation indefinitely by filing a new motion every time a court decides it does not have jurisdiction over a matter. See Rule 60, Ala. R. Civ. P., Committee Comments on 1973 Adoption (“In passing on an attack upon a judgment, the court is given a wide discretion. In exercising this discretion, the court must balance the desire to remedy injustice against the need for finality of judgments.”). Therefore, we hold that the trial court in the second action correctly concluded that the second action was a successive Rule 60(b) motion and that the court therefore lacked jurisdiction to entertain the motion.

Summary Judgment

Having concluded that the trial court in the second action did not have jurisdiction to entertain Pinkerton’s Rule 60(b) motion, we move to the question whether the entry of' a summary judgment on that ground was proper. We hold that it was not.

In its appeal, Pinkerton argues three grounds on which it alleges that the trial court in the second action erred in entering the summary judgment. We address each of those grounds briefly.

First, Pinkerton argues that the trial court’s summary judgment in the second action relied on the decision of the Court of Civil Appeals in Pinkerton I, which, Pinkerton argues, erroneously held that a trial court’s denial of a Rule 60(b) motion on the basis of a lack of jurisdiction is a decision on the merits. Pinkerton, however, misinterprets the holding of the Court of Civil Appeals in Pinkerton I. In Pinkerton I the Court of Civil Appeals actually states that the trial court did not have jurisdiction to hear the second Rule 60(b) motion and, therefore, that the trial court’s denial of that motion was “a nullity and [would] not support an appeal.” 934 So.2d at 391.

Pinkerton may be referring to certain dicta in Pinkerton I, in which the Court of Civil Appeals states that had it reached the merits of Pinkerton’s appeal, it “would have been constrained to affirm the judgment of the trial court.” Pinkerton I, 934 So.2d at 391. Although this statement may be erroneous, it is not the holding of the Court of Civil Appeals.

Second, Pinkerton argues that the Alabama Rules of Civil Procedure “provide parties with the opportunity to seek equitable relief under Rule 60(b).... The denial of this opportunity by the courts of this State operates as a flagrant denial of Pinkerton’s due process rights under Alabama law.” Pinkerton’s brief at 17. However, Pinkerton had and exercised its opportunity to seek relief under Rule 60(b), when it brought its first Rule 60(b) motion in December 2004. In response to that motion, the trial court held a hearing, at which Pinkerton was present and during which it presented its case. This Court has stated that due process “contemplates the rudimentary requirements of fair play, which include a fair and open hearing before a legally constituted court or other authority, with notice and opportunity to present evidence and argument, representation by counsel, if desired, and information as to the claims of the opposing party, with reasonable opportunity to controvert them.” Ex parte Weeks, 611 So.2d 259, 261 (Ala.1992). Pinkerton was clearly afforded these procedural rights; thus, there was no denial of due process.

Third, Pinkerton argues that, because its earlier Rule 60(b) motions were denied on the basis that the trial court lacked jurisdiction to hear them, its only means of access to postjudgment relief under Rule 60(b) was the filing of an independent action. Usually, a party seeking postjudgment relief under Rule 60(b) does so in the court that originally rendered the judgment, but, “[i]f relief does not appear to be available under the rule, or if relief from the judgment is sought in some other court than the court which rendered the judgment, the party should bring an independent proceeding.” Rule 60, Ala. R. Civ. P., Committee Comments on 1973 Adoption.

However, in Skillman v. First State Bank of Altoona, 341 So.2d 691, 693 (Ala.1977), we held that the two routes for seeking Rule 60(b) relief were not intended “to allow both a hearing via a [Rule] (60)(b) motion, and, should that fail, then an independent action. [The available] remedy was to appeal from the denial of her motion to set aside the default judgment.” Pinkerton moved for Rule 60(b) relief in the original trial court; that motion was denied. As in Skillman, Pinkerton’s available remedy at that point was an appeal, not an independent action in another trial court.

Although we do not find Pinkerton’s arguments persuasive, we nonetheless hold that the trial court’s summary judgment was void because the trial court lacked jurisdiction over the motion and, therefore, did not have the authority to enter a judgment. In Faulkner v. University of Tennessee, 627 So.2d 362, 364 (Ala.1992), we stated that a “ ‘summary judgment procedure deals with the merits’ and ... a judgment made on jurisdictional grounds ‘is not a matter for dismissal with prejudice or summary judgment.’ ” (Quoting McMillon v. Hunter, 439 So.2d 153, 154 (Ala.1983) (“[T]he trial court must decide if the motion presents an opportunity to judge the merits. Only then can a dismissal with prejudice or summary judgment be properly issued.”).) We also stated in Faulkner that “a court cannot enter a judgment on the merits against a party after finding that it lacks jurisdiction, because it cannot effectively find that it has no authority to adjudicate a claim, and then proceed to adjudicate the claim anyway.” 627 So.2d at 364. Here, the trial court hearing the second action concluded, and we agree, that it lacked jurisdiction to adjudicate Pinkerton’s second action on the merits. Without jurisdiction, the trial court could not properly grant Chamblee and Jackson’s motion for a summary judgment.

Conclusion

Pinkerton failed to appeal the denial of its first Rule 60(b), Ala. R. Civ. P., motion; therefore, it has exhausted its remedies under Rule 60(b). Because the trial court did not have jurisdiction to entertain Pinkerton’s second action under Rule 60(b), its summary judgment in favor of Chamblee and Jackson is void. A void judgment will not support an appeal. Jones v. Sears Roebuck & Co., 342 So.2d 16, 17 (Ala.1977) (“[A] void decree will not support an appeal; thus, it must be dismissed.”). Therefore, we dismiss the appeal.

APPEAL DISMISSED.

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

      . While this appeal was pending, Troy Cham-blee died. His estate has been substituted as a party. See Rule 43(a), Ala. R.App. P.

      . Rule 59.1 reads, in pertinent part:
      "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.... A failure by the trial court to dispose of any pending post-judgment motion within the time permitted hereunder ... shall constitute a denial of such motion as of the date of the expiration of the period.”

      . The order reads, in pertinent part:

      . Rule 60(b)(6) allows the court to grant post-judgment relief for "any other reason justifying relief from the operation of the judgment.”

      . Chamblee, 899 So.2d at 249 (the trial court's judgment as a matter of law entered after it lost jurisdiction was "a nullity and therefore void”); Ex parte Norfolk Southern Ry., 816 So.2d 469, 472 (Ala.2001) ("An order issued by a trial court without jurisdiction is a nullity.”); Ex parte Hornsby, 663 So.2d 966, 967 (Ala.1995) (because the trial court "lacked jurisdiction to set aside the default judgment for the petitioners, [its] January 10, 1995, order was a nullity and, therefore, is due> to be set aside”).

      . See Norfolk Southern Ry., 816 So.2d at 472 ("An order issued by a trial court without jurisdiction is a nullity.”); Faulkner v. University of Tennessee, 627 So.2d 362, 364 (Ala.1992) (“[A] court cannot enter a judgment on the merits against a party after finding that it lacks jurisdiction.”).


author: HARWOOD, Justice.

text:
    Ex parte TROY UNIVERSITY and Dr. Cameron J. Martindale. (In re The Rosa and Raymond Parks Institute for Self Development, in its own right and as the successor to the Rosa Parks Legacy; the estate of Rosa Parks, by and through its personal representatives, Adam Shakoor and Elaine Steele; and the Rosa Parks Living Trust, by and through its trustees, Adam Shakoor and Elaine Steele v. Troy University et al.)
    1051318.
    Supreme Court of Alabama.
    Dec. 22, 2006.
    Rehearing Denied Jan. 12, 2007.

      H. Lewis Gillis, Christopher K. Whitehead, Afrika C. Parchman, and Ramada-nah M. Salaam of Thomas, Means, Gillis & Seay, P.C., Montgomery, for petitioners.
    Glenn D. Zimmerman and Gwendolyn Thomas Kennedy, Montgomery, for respondents.
   HARWOOD, Justice.

The Rosa and Raymond Parks Institute for Self Development, in its own right and as the successor to the Rosa Parks Legacy, sued Troy University and fictitiously named defendants on September 26, 2005, asserting claims of breach of contract and tortious interference with contractual rights. The complaint alleged that the University was acting in violation of a memorandum agreement entered into on January 15, 1998, between the Rosa Parks Legacy and the University, doing business as Troy State University of Montgomery, which related to the University’s use of Rosa Parks’s name and image and to its operation on its Montgomery campus of the Rosa Parks Library and Museum (“the museum”).

The complaint sought compensatory and punitive damages and a restraining order prohibiting the University from using Rosa Parks’s name or image and from making a movie for use in the museum that was to feature Rosa Parks’s image and a facsimile of her voice. On September 29, 2005, the circuit court denied the Institute’s request for a restraining order. On October 28, 2005, the University moved to dismiss the complaint, arguing, in part, that it was immune from suit under Art. I, § 14, of the Alabama Constitution of 1901.

The Institute amended its complaint in November 2005 to add as plaintiffs the estate of Rosa Parks and the Rosa Parks Living Trust (all the plaintiffs are hereinafter referred to collectively, as “the Institute”); to correct its designation of the University (see note 1); to assert additional counts of theft of intellectual property and fraudulent inducement to contract; to seek an injunction prohibiting the University from engaging in various activities related to its use of Rosa Parks’s name and image; and to substitute Glenda Curry, former vice chancellor of the University, and Cameron J. Martindale, current vice chancellor of the University, for two of the fictitiously named defendants. The original complaint did not describe the fictitiously named defendants other than as “Fictitious A, B, and C, as yet unknown individuals, corporations, or entities.” The amended complaint did not specify whether Martindale was being sued in her personal or official capacity; it stated simply that the Institute was amending its complaint “to rename Fictitious Party C, Cameron Martindale, current president of Troy State University Montgomery and Vice Chancellor of Troy State.” The following statement in the count alleging fraudulent inducement is the only specific reference in the amended complaint to Martindale: “Troy State’s current Vice Chancellor ratified the Memorandum by treating the Institute as the successor [to the Rosa Parks Legacy] after receiving notice from the Institute in 2001.” (Amended complaint at ¶ 48.)

The University and Martindale filed motions to dismiss the claims asserted against them in the amended complaint, asserting immunity as a ground for dismissal. On May 12, 2006, and August 4, 2006, the circuit court entered orders denying the motions. The University and Martindale jointly filed a petition for the writ of mandamus asking this Court to direct the circuit court to vacate its order and to dismiss the Institute’s claims against them on the basis of immunity.

“The writ of mandamus is an extraordinary legal remedy. Ex parte Mobile Fixture & Equip. Co., 630 So.2d 358, 360 (Ala.1993). Therefore, this Court will not grant mandamus relief unless the petitioner shows: (1) a clear legal right to the order sought; (2) an imperative duty upon the trial court to perform, accompanied by its refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the Court. See Ex parte Wood, 852 So.2d 705, 708 (Ala.2002).”

Ex parte Davis, 930 So.2d 497, 499 (Ala.2005). A “petition for a writ of mandamus is an appropriate means for seeking review of an order denying a claim of immunity.” Ex parte Butts, 775 So.2d 173, 176 (Ala.2000).

“In reviewing the denial of a motion to dismiss by means of a mandamus petition, we do not change our standard of review.” Ex parte Haralson, 853 So.2d 928, 931 (Ala.2003).

“In Nance v. Matthews, 622 So.2d 297 (Ala.1993), this Court stated the standard of review applicable to a ruling on a motion to dismiss:
“ ‘On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.J is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circum- . stances that would entitle [it] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [it] may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.’
622 So.2d at 299 (citations omitted).”

Knox v. Western World Ins. Co., 893 So.2d 321, 322 (Ala.2004).

Article 1, § 14, of the Alabama Constitution provides that “the State of Alabama shall never be made a defendant in any court of law or equity.” This Court has recognized that

“ ‘[t]he wall of immunity erected by § 14 is nearly impregnable,’ and bars
“(1) claims against the State,
“(2) claims against a State agency,
“(3) claims against a state official or employee sued in his official capacity as an agent for the State, and
“(4) claims against a state official or employee sued in his individual capacity.”

Ex parte Davis, 930 So.2d at 500 (quoting Patterson v. Gladwin Corp., 835 So.2d 137, 142-43 (Ala.2002)(footnotes omitted)). “The State’s immunity bars suits for relief by way of mandamus or injunction, no less than suits for any other remedy.” Taylor v. Troy State Univ., 437 So.2d 472, 474 (Ala.1983).

The fourth category of claims identified in the above statement from Davis refers to claims against State officials or employees in their individual capacity which are, in effect, claims against the State. Ex parte Walley, 950 So.2d 1172, 1178-79 (Ala.2006); Davis, 930 So.2d at 500 (“Whether immunity serves as a defense to an action against a state officer or employee sued in his individual capacity depends upon the degree to which the action involves a State interest.”); Phillips v. Thomas, 555 So.2d 81, 83 (Ala.1989) (“State officers and employees, in their official capacities and individually, also are absolutely immune from suit when the action is, in effect, one against the State.”). This form of immunity is distinct from the discretionary or State-agent immunity discussed in Ex parte Cranman, 792 So.2d 392 (Ala.2000), which dealt with claims against State agents sued in their personal, or individual, capacities, which were not, in effect, claims against the State.

I. The University

The University argues that it is absolutely immune from suit and that the circuit court thus should have dismissed the Institute’s claims against it. This Court has extended the restriction on suits against the State found in § 14 “to the state’s institutions of higher learning” and has held those institutions absolutely immune from suit as agencies of the State. Taylor, 437 So.2d at 474 (citing Hutchinson v. Board of Trs. of Univ. of Ala., 288 Ala. 20, 256 So.2d 281 (1971), and Harman v. Alabama Coll., 235 Ala. 148, 177 So. 747 (1937)). See also Stark v. Troy State Univ., 514 So.2d 46, 50 (Ala.1987)(finding Troy State University constitutionally immune from suit); Matthews v. Alabama Agric. & Mech. Univ., 787 So.2d 691, 696 (Ala.2000)(“Alabama A & M University is an instrumentality of the State of Alabama and, thus, is absolutely immune from suit under § 14”); Ex parte Craft, 727 So.2d 55, 58 (Ala.1999)(“Ayers State Technical College is a state institution of higher learning and is entitled to absolute immunity. ...”). The University is an institution of higher learning under the authority of the governor and the superintendent of education. See Ala.Code 1975, § 16-56-1; Taylor, supra; Stark, 514 So.2d at 50 (“Here, because Troy State University is constitutionally immune from suit, its motion to dismiss was properly granted.”). Under these precedents, the University was entitled to dismissal of the Institute’s claims against it by virtue of § 14.

The Institute argues that the University is not protected by the prohibition of suits against the State in § 14 because, according to the Institute, the University has received funds for the operation of the museum in the form of grants from the United States government, museum ticket and other sales, and private donations. The Institute reasons that because the University is not wholly funded by the State with respect to the museum and related projects, any judgment against the University may be paid out of non-State funds and thus not affect the State treasury so as to bring the University within the prohibition of § 14. At the foundation of this argument is the erroneous proposition that this Court’s extension of the prohibition of § 14 to State agencies is based solely on the effect actions against such agencies have on the State treasury. The Institute cites no authority to support its argument, and we have found no prior decision of this Court denying the application of § 14 to a State agency solely because the agency receives some of its funds from a source other than the State.

The receipt of funds from the State is a significant factor in deciding whether an entity is a State agency. Likewise, the fact that a judgment “would result in a monetary loss to the State treasury,” Ex parte Alabama Dep’t of Mental Health & Mental Retardation, 937 So.2d 1018, 1023 (Ala.2006), is significant, if not determinative, in the decision. However, neither factor is the sole basis for our extension of § 14 to State agencies. See, e.g., Ex parte Greater Mobile-Washington County Mental Health-Mental Retardation Bd., Inc., 940 So.2d 990, 993 (Ala.2006); Tallaseehatchie Creek Watershed Conservancy Dist. v. Allred, 620 So.2d 628, 630 (Ala.1993); Armory Comm’n of Alabama v. Staudt, 388 So.2d 991, 992-93 (Ala.1980); White v. Alabama Insane Hosp., 138 Ala. 479, 482, 35 So. 454, 454 (Ala.1903). This Court considers several factors in determining whether an entity is “an immediate and strictly governmental agenc[y]” and thus entitled to protection from suit under § 14, including factors related to “(1) the character of the power delegated to the body; (2) the relation of the body to the State; and (3) the nature of the function performed by the body.” Rodgers v. Hopper, 768 So.2d 963, 966 (Ala.2000)(citing Staudt, 388 So.2d at 993). The Institute’s argument, as presented to this Court, therefore, provides no well-founded basis upon which the University should be denied the protection afforded by § 14.

Because the University is a State institution of higher learning and entitled to the absolute immunity of § 14, the Institute can prove no set of circumstances that would entitle it to relief. Therefore, the University has a clear legal right to dismissal of the claims against it.

II. Martindale

We turn now to the determination of whether the Institute’s claims against Martindale should have been dismissed on grounds of immunity. Initially, we note that Martindale does not argue that she is a constitutional State officer absolutely immune from suit. See Ex parte Davis, 930 So.2d at 500. Likewise, although this Court has held that “State agents enjoy absolute immunity from suit in their official capacities,” Burgoon v. Alabama State Dep’t of Human Res., 835 So.2d 131, 133 (Ala.2002), Martindale does not specifically argue that she is absolutely immune from suit in this capacity. Rather, she argues that she enjoys qualified or State-agent immunity from suits asserted against her in her individual capacity, as discussed in Ex parte Cranman, supra.

The Institute’s complaint contained no description of the fictitiously named party for whom the Institute substituted Martindale and did not specify whether the action was brought against the fictitiously named party in a personal or an official capacity. The amended complaint similarly made no such specification regarding Martindale. The only allegation of the amended complaint specifically relating to Martindale is that Martindale “ratified the Memorandum by treating the Institute as the successor [to the Rosa Parks Legacy] after receiving notice from the Institute in 2001.” From this allegation alone, we cannot say that the action is against Martindale personally, rather than in her official capacity as vice chancellor of the University. Indeed, the allegation states that Martindale ratified an agreement of the University and presumably on its behalf so as to bind the University. Furthermore, the Institute has not argued that its claims are against Martindale in her individual capacity, and Martindale has asserted that the Institute sued her in her official capacity. Accordingly, the nature of the claims against Martindale and the course of proceedings show that the Institute has sued Martindale in her official capacity. See, e.g., Jackson v. Georgia Dep’t of Transp., 16 F.3d 1573, 1575 (11th Cir.1994) (“When it is not clear in which capacity the defendants are sued, the course of proceedings typically indicates the nature of the liability sought to be imposed.”)(citing Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)); Gamble v. Florida Dep’t of Health & Rehabilitative Servs., 779 F.2d 1509, 1513 (11th Cir.l986)(“Whether a state officer is being sued for damages in an official or an individual capacity is not mere semantics; the question is whether the plaintiff is reasonably seeking relief from the state coffers or from the individual’s assets.” (footnotes omitted)).

Because the Institute sued Martindale in her official capacity, Martindale is entitled to the dismissal of the claims against her. This Court has held that a suit “against State agents in their official capacities is a suit against the State.” Burgoon, 835 So.2d at 133. Accordingly, because the claims asserted against Martindale in her official capacity are claims against the State, they are barred by the prohibition of suits against the State in § 14.

Furthermore, even if we were to find that the Institute sued Martindale personally and that the claim was not, in effect, a claim against the State, the rule of State-agent immunity set forth in Cmn-man would apply: “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 ... exercising his or her judgment in the administration of a department or agency of government [by, among other things,] negotiating contracts .... ” Cranman, 792 So.2d at 405. Because Martindale is alleged only to have ratified a memorandum agreement between the Institute’s predecessor and the University, and thus to have negotiated a contract in the course of exercising her judgment as vice chancellor, she is immune from civil liability to the Institute. The amended complaint makes no specific allegation that Martindale acted “willfully, maliciously, fraudulently, in bad faith, beyond ... her authority, or under a mistaken interpretation of the law” or in any other way that would remove her from immunity under Cmnman. Cranman, 792 So.2d at 405. Therefore, even if the amended complaint stated claims against Martindale in her personal capacity, she would be entitled to State-agent immunity under Cmn-man.

Based on the foregoing, the Institute can prove no set of circumstances that would entitle it to relief, and Martindale is entitled to a dismissal of the Institute’s claims against her. Martindale thus has a clear legal right to dismissal of the claims against her.

We accordingly grant the University and Martindale’s petition and issue a writ of mandamus directing the circuit court to vacate its order and to dismiss all claims asserted against the University and Mar-tindale.

PETITION GRANTED; WRIT ISSUED.

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

      . The plaintiff originally named "Troy State University of Montgomery” as a defendant but later amended the complaint to change the designation to name Troy University as the defendant.

      . This opinion addresses only the mandamus petition filed by Martindale and the University; it does not review any petition, motion, or defense related to Curry.

      . The May 12, 2006, order neglected to address Martindale's motion to dismiss. After the University and Martindale filed their petition for the writ of mandamus in June 2006, the circuit court entered the August 4, 2006, order, which amended its previous order to correct the omission. The parties have supplemented the record to include this later amendment, and we treat the petition as having been timely filed and as properly addressing the denial of both the University's and Martindale's motions to dismiss.