author: PARKER, Justice.

text:
    Ex parte J. Christopher MURPHY, as director of the Alabama Department of Public Safety. (In re Christopher Battle and Greg Ogles, individually and as representatives of the classes of individuals described herein v. J. Christopher Murphy, as director of the Alabama Department of Public Safety).
    1090699.
    Supreme Court of Alabama.
    May 13, 2011.

      Jack M. Curtis and F. Tim McCollum, Alabama Department of Public Safety, for petitioner.
    Brian M. Clark of Wiggins, Childs and Quinn & Pantazis, LLC, Birmingham; and Gary B. Holder of the Holder Law Firm, Birmingham, for respondents.
   PARKER, Justice.

J. Christopher Murphy, as then director of the Alabama Department of Public Safety (“Murphy”), petitioned this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its judgment denying Murphy’s motion to dismiss certain claims in the action against him based upon the defense of sovereign immunity under Art. I, § 14, Ala. Const. 1901, also known as State immunity, and to enter an order dismissing certain claims against him in this matter. We grant the petition and issue the writ.

Facts and Procedural History

On July 21, 2008, Christopher Battle, individually and as a representative of a class of individuals, sued the Alabama Department of Public Safety (“the Department”) and Mike Coppage, the then director of the Department, requesting declaratory relief and injunctive relief and alleging claims of unjust enrichment and unlawful taking and seeking money damages. Battle purported to bring the action on behalf of himself and all members of a class composed of people who had allegedly been overcharged by the Department for renewed drivers’ licenses.

On February 13, 2009, an amended complaint was filed by Battle and Greg Ogles, individually and as representatives of two separate classes of individuals (hereinafter collectively referred to as “the respondents”), dismissing the Department as a defendant and substituting J. Christopher Murphy for Coppage as director of the Department. The amended complaint alleged that Battle had renewed his driver’s license with the Department in February 2005 and that he had been charged $23.25 for doing so. The amended complaint alleged that the $23.25 charge by the Department was charged in violation of §§ 32-6-4 and 32-6-6, Ala.Code 1975. Section 32-6-4(b) provides, in pertinent part:

“(b) For the purpose of defraying the cost of issuing drivers’ licenses or non-driver identification cards with color photographs of the licensee or nondriver thereon, except as provided in Section 32-6-4.1, the Department of Public Safety, Driver License Division, judge of probate, or license commissioner shall collect for each license or identification card the sum of twenty dollars ($20) for a four-year license or an identification card, and the Department of Public Safety, Driver License Division, judge of probate, or license commissioner shall give the licensee a driver’s license or identification card.”

Section 32-6-6 provides, in pertinent part:

“In addition to all current and existing fees, the department may charge an additional fee to recover the cost of producing and issuing photo drivers’ licenses and photo nondriver identification cards. The fee may not exceed ten cents ($.10) over the actual cost of producing and issuing the license or card including the cost of materials, labor costs, telecommunications costs, computer costs, postage, and any other costs incurred in producing and issuing a license or card.”

The amended complaint also alleged that Ogles had, in late June or early July 2004, been charged $18.00 by the Department for obtaining a duplicate driver’s license from the Department and that said charge was in violation of §§ 32-6-6 and 32-6-15, Ala.Code 1975. The amended complaint purported to assert claims on behalf of a class composed of people who had been overcharged by the Department for duplicate drivers’ licenses. Section 32-6-15(a) provides, in pertinent part:

“(a) In the event any driver’s license issued under the provisions of this article is lost or destroyed, the person to whom the same was issued may upon payment of a fee of fifteen dollars ($15) and upon furnishing proof to the Director of Public Safety that the same has been lost or destroyed, secure a duplicate. The second and subsequent duplicates applied for will require the payment of a fee of fifteen dollars ($15) and, upon furnishing proof to the Director of Public Safety that his previously held license or duplicate has been lost or destroyed, secure another duplicate. Application for such duplicate will be made to the Director of Public Safety on forms provided by him. The fee shall be collected by the director, paid into the State Treasury and credited to the Highway Traffic Safety Fund for the Department of Public Safety.”

The amended complaint alleged that Murphy, as the then director of the Department, had the authority to establish the charges explained above and that the charges he established were beyond those statutorily permissible as the result of either a mistaken interpretation of the law or a willful misapplication of the law. The amended complaint requested declaratory relief, injunctive relief, and money damages under claims of unjust enrichment and unlawful taking for the alleged overages paid to the Department.

On August 22, 2008, Murphy filed a motion to dismiss the respondents’ action under Rule 12(b)(1), Ala. R. Civ. P., asserting lack of subject-matter jurisdiction based on the doctrine of sovereign immunity, and under Rule 12(b)(6), asserting that the respondents had failed to state a claim upon which relief can be granted. On May 15, 2009, Murphy filed a motion for a summary judgment. On February 5, 2010, the circuit court denied the motion to dismiss and the summary-judgment motion. On February 26, 2010, Murphy filed this petition for a writ of mandamus with this Court.

Standard of Review

“ ‘Mandamus review is available when the question presented is one of subject-matter jurisdiction.
“ ‘ “ ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805 (Ala.2000).”
‘Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003) (emphasis added). “When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999). Under such a circumstance, the trial court has “no alternative but to dismiss the action.” 740 So.2d at 1029.’
“Ex parte Chemical Waste Mgmt., Inc., 929 So.2d 1007, 1010 (Ala.2005).”

Ex parte Richardson, 957 So.2d 1119, 1124 (Ala.2006). We note that “ ‘[t]he denial of a motion to dismiss or a motion for a summary judgment generally is not reviewable by a petition for writ of mandamus, subject to certain narrow exceptions, such as the issue of immunity.’” Drummond Co. v. Alabama Dep’t of Transp., 937 So.2d 56, 57 (Ala.2006) (quoting Ex parte Haralson, 853 So.2d 928, 931 n. 2 (Ala.2003)).

Discussion

Initially, we note that this case involves the immunity of the director of a State agency, in his official capacity, against an action seeking money damages and injunctive relief. The issue of immunity is a jurisdictional one. “This constitutionally guaranteed principle of sovereign immunity, acting as a jurisdictional bar, precludes a court from exercising subject-matter jurisdiction. Without jurisdiction, a court has no power to act and must dismiss the action.” Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432, 435 (2001). Therefore, a court’s failure to dismiss a case for lack of subject-matter jurisdiction based on the doctrine of sovereign immunity may properly be addressed by a petition for the writ of mandamus. See Ex parte Alabama Dep’t of Mental Health & Mental Retardation, 837 So.2d 808, 810-11 (Ala.2002).

In Alabama Department of Transportation v. Harbert International, Inc., 990 So.2d 831 (Ala.2008), this Court set forth the established principles of sovereign or State immunity:

“[Article I,] Section 14[, Ala. Const. 1901,] provides generally that the State of Alabama is immune from suit: ‘[T]he State of Alabama shall never be made a defendant in any court of law or equity.’ This constitutional provision ‘has been described as a “nearly impregnable” and “almost invincible” “wall” that provides the State an unwaivable, absolute immunity from suit in any court.’ Ex parte Town of Lowndesboro, 950 So.2d 1203, 1206 (Ala.2006). Section 14 ‘specifically prohibits the State from being made a party defendant in any suit at law or in equity.’ Hutchinson v. Board of Trs. of Univ. of Alabama, 288 Ala. 20, 23, 256 So.2d 281, 283 (1971). Additionally, under § 14, State agencies are ‘absolutely immune from suit.’ Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003).
“Not only is the State immune from suit under § 14, but ‘[t]he State cannot be sued indirectly by suing an officer in his or her official capacity....’ Lyons, 858 So.2d at 261. ‘Section 14 prohibits actions against state officers in their official capacities when those actions are, in effect, actions against the State.’ Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004). To determine whether an action against a State officer is, in fact, one against the State, this Court considers
“ ‘whether “a result favorable to the plaintiff would directly affect a contract or property right of the State,” Mitchell [v. Davis, 598 So.2d 801, 806 (Ala.1992) ], whether the defendant is simply a “conduit” through which the plaintiff seeks recovery of damages from the State, Barnes v. Dale, 530 So.2d 770, 784 (Ala.1988), and whether “a judgment against the officer would directly affect the financial status of the State treasury,” Lyons [v. River Road Constr., Inc.], 858 So.2d [257] at 261 [ (Ala.2003) ].’
“Haley, 885 So.2d at 788. Additionally, ‘[i]n determining whether an action against a state officer is barred by § 14, the Court considers the nature of the suit or the relief demanded, not the character of the office of the person against whom the suit is brought.’ Ex parte Carter, 395 So.2d 65, 67-68 (Ala.1980).
“The immunity afforded State officers sued in their official capacities, however, is not unlimited:
“ ‘[Section 14] immunity from suit does not extend, in all instances, to officers of the State acting in their official capacity. Unzicker v. State, 346 So.2d 931 (Ala.1977). In limited circumstances the writ of mandamus will lie to require action of state officials. This is true where discretion is exhausted and that which remains to be done is a ministerial act. See Hardin v. Fullilove Excavating Co., Inc., 353 So.2d 779 (Ala.1977); Tennessee & Coosa R.R. Co. v. Moore, 36 Ala. 371 (1860). Action may be enjoined if illegal, fraudulent, unauthorized, done in bad faith or under a mistaken interpretation of law. Wallace v. Board of Education of Montgomery Co., 280 Ala. 635, 197 So.2d 428 (1967). If judgment or discretion is abused, and exercised in an arbitrary or capricious manner, mandamus will lie to compel a proper exercise thereof. The writ will not lie to direct the manner of exercising discretion and neither will it lie to compel the performance of a duty in a certain manner where the performance of that duty rests upon an ascertainment of facts, or the existence of conditions, to be determined by an officer in his judgment or discretion. See Barnes v. State, 274 Ala. 705, 151 So.2d 619 (1963).’
“McDowell-Purcell, Inc. v. Bass, 370 So.2d 942, 944 (Ala.1979).
“Moreover, certain causes of action are not barred by § 14:
“ ‘ “There are four general categories of actions which in Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971), we stated do not come within the prohibition of § 14: (1) actions brought to compel State officials to perform their legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; and (4) actions brought under the Declaratory Judgments Act ... seeking construction of a statute and its application in a given situation. 287 Ala. at 229-230, 250 So.2d 677. Other actions which are not prohibited by § 14 are: (5) valid inverse condemnation actions brought against State officials in their representative capacity; and (6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority or in a mistaken interpretation of law. Wallace v. Board of Education of Montgomery County, ... 280 Ala. [685] at 639, 197 So.2d 428 [ (1967) ]; Unzicker v. State, 346 So.2d 931, 933 (Ala.1977); Engelhardt v. Jenkins, 273 Ala. 352, 141 So.2d 193 (1962).” ’
“Drummond Co. v. Alabama Dep’t of Transp., 937 So.2d 56, 58 (Ala.2006) (quoting Carter, 395 So.2d at 68)(empha-sis omitted). These actions are sometimes referred to as ‘exceptions’ to § 14; however, in actuality these actions are simply not considered to be actions ‘ “against the State” for § 14 purposes.’ Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002). This Court has qualified those ‘exceptions,’ noting that ‘ “[a]n action is one against the [S]tate when a favorable result for the plaintiff would directly affect a contract or property right of the State, or would result in the plaintiffs recovery of money from the [S]tate.” ’ Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 873 (Ala.2004) (quoting Shoals Cmty. Coll. v. Colagross, 674 So.2d 1311, 1314 (Ala.Civ.App.1995))....”

Harbert, 990 So.2d at 839-40 (emphasis omitted).

Murphy argues that the respondents’ action should be dismissed because, he says, it is barred by the doctrine of sovereign or State immunity. Specifically, Murphy argues that even though the respondents sued him in his official capacity as director of the Department, the respondents’ action is, at least in part, an action seeking money damages against the State and, thus, is barred by the doctrine of sovereign immunity. Murphy concedes in his brief that counts I (styled in the respondents’ complaint as “Class Claim for Declaratory Relief’) and II (styled in the respondents’ complaint as “Class Claim for Injunctive Relief’) of the respondents’ complaint are not barred by the doctrine of sovereign immunity to the extent that the respondents seek a declaratory judgment for the purposes of obtaining prospective injunctive relief. Therefore, Murphy is petitioning this Court for a writ of mandamus concerning only counts III (styled in the respondents’ complaint as “Class Claim for Unjust Enrichment/Disgorgement”) and IV (styled in the respondents’ complaint as “Class Claim for Unlawful Taking”) of the respondents’ complaint, which both seek money damages.

The respondents argue that their claims for money damages are not barred by the doctrine of sovereign immunity because, they say, they fit within the exception to the doctrine of sovereign immunity that “actions for ... damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority or in a mistaken interpretation of law,” Harbert, 990 So.2d at 840, are not barred by the doctrine of sovereign immunity and, thus, an action asserting such claims is in actuality not an action against the State. The respondents contest that the plain language of the “exception” should govern and that they should be allowed to recover money damages against the State. We disagree.

As set forth above, the “exceptions” to § 14 are qualified by the general principle that “ ‘[a]n action is one against the [S]tate when a favorable result for the plaintiff ... would result in the plaintiffs recovery of money from the [S]tate.’ ” Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 873 (Ala.2004) (quoting Shoals Cmty. Coll. v. Colagross, 674 So.2d 1311, 1314 (Ala.Civ.App.1995)(emphasis omitted)); see also Ex parte Butts, 775 So.2d 173, 177 (Ala.2000) (“A complaint seeking money damages against a State employee in his or her official capacity is considered a complaint against the State, and such a complaint is barred by Art. I, § 14, Alabama Constitution of 1901.”). Further, this Court has held that actions to recover money damages from the State that seek to compel the payment of money the State is not legally obligated to pay pursuant to a contract are generally barred. For example,

“[i]n Stark v. Troy State University, 514 So.2d 46 (Ala.1987), the plaintiff, an employee of a State university, sued certain State officers employed by the university, arguing that they had violated the university’s policies in underpaying him during a prior academic year. He thus sought damages for back pay. The defendants argued that the action was barred by § 14. We stated:
“ ‘Based on the foregoing, if the individual defendants have not acted toward the plaintiff in accordance with the rules and regulations set by the university, their acts are arbitrary and an action seeking to compel them to perform their legal duties will not be barred by the sovereign immunity clause of the Alabama Constitution of 1901; however, the action for compensatory damages cannot be maintained. The reason was stated in Gunter v. Beasley, 414 So.2d 41 (Ala.1982):
“ ‘ “Section 14 prohibits the State from being made a defendant in any court of this state and neither the State nor any individual can consent to a suit against the State. Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971). The application of Section 14 to suits against officers of the State was treated in Ex parte Carter, 395 So.2d 65 (Ala.1980), as follows:
In determining whether an action against a state officer is barred by § 14, the Court considers the nature of the suit or the relief demanded, not the character of the office of the person against whom the suit is brought. Wallace v. Board of Education of Montgomery County, 280 Ala. 635, 197 So.2d 428 (1967). This Court has held that § 1⅛ prohibits suit against State officers and agents in their official capacity or individually when a result favorable to the plaintiff would directly affect a contract or property right of the State. Southall v. Stricos Corp., 275 Ala. 156, 153 So.2d 234 (1963).’ ” (Emphasis added.)
“ ‘414 So.2d at 48.’
514 So.2d at 50-51.”

Harbert, 990 So.2d at 844-45.

It is undisputed that the respondents are seeking money damages from the State. Although the respondents’ action alleging that Murphy had improperly overcharged them for renewal and duplicate drivers’ licenses based upon either a misinterpretation of the law or a willful misapplication of the law is not necessarily barred by the doctrine of sovereign immunity, a judgment in the respondents’ favor would affect the financial status of the State treasury, and, thus, the action for money damages cannot be maintained. Accordingly, to the extent that the respondents’ action seeks money damages from the State, it is barred by the doctrine of sovereign immunity.

Conclusion

Murphy has demonstrated a clear legal right to dismissal of counts III and IV of the respondents’ complaint. Accordingly, we direct the circuit court to grant Murphy’s motion to dismiss counts III and IV of the respondents’ amended complaint.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and STUART, SHAW, and WISE, JJ., concur.

      . Murphy is no longer director of the Department of Public Safety. He resigned as director in September 2010, while this petition was pending. See Rule 43(b), Ala. R.App. P.: "When a public officer is a party to an appeal or other proceeding in the appellate court in that officer’s official capacity, and during its pendency ... resigns ..., the action shall not abate and the public officer’s successor is automatically substituted as a party.’’ The current director is Hugh B. McCall.


source: Caselaw Access Project

author: WOODALL, Justice. COBB, Chief Justice

license: Public Domain

text:
    Ex parte Steven Wayne HUFFMAN. (In re Steven Wayne Huffman v. State of Alabama).
    1100800.
    Supreme Court of Alabama.
    May 20, 2011.
    Steven Wayne Huffman, pro se.
    Submitted on petitioner’s brief only.

       Justice Wise was a member of the Court of Criminal Appeals when that court considered this case.

   WOODALL, Justice.

WRIT DENIED. NO OPINION.

STUART, BOLIN, PARKER, MURDOCK, SHAW, and MAIN, JJ., concur.

COBB, C.J., dissents.

WISE, J., recuses herself.

COBB, Chief Justice

(dissenting).

I respectfully dissent. Steven Wayne Huffman was convicted of trafficking in controlled substances, a violation of § 13A-12-23(11), Ala.Code 1975, and was sentenced to 50 years’ imprisonment upon application of the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975, and the sentence-enhancement provisions of § 13A-12-231(13), Ala.Code 1975 (possession of a firearm during the trafficking offense). Huffman subsequently attacked his conviction and sentence by means of a postconviction challenge by way of a Rule 32, Ala. R.Crim. P., petition. The trial court dismissed that challenge, and the Alabama Court of Criminal Appeals affirmed the dismissal. Although I agree with the majority that the petition is due to be denied as to the other issues raised, I believe that Huffman has raised an issue of probable merit with respect to the application of the principles set out in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to the enhancement of his sentence upon application of § 13A-12-23H13).

Specifically, Huffman’s petition for cer-tiorari review states:

“Affirming the trial court’s summary disposition, the Court of Criminal Appeals held that:
“ ‘Because possession of a firearm during trafficking is an element of the offense, no notice was required, nor was the sentence imposed in violation of the principles of Apprendi v. New Jersey, 530 U.S. 466 (2000).’
“Attachment at 18.
“This Court has not addressed the precise issue of whether the firearm enhancement of § 13A-12-231(13) requires pretrial notice. However, the decision of the court below is in direct conflict with prior decision[s], those of this Court, and decisions of the United States Supreme Court on similar points of law. Apprendi unequivocally holds that the Fifth, Sixth, and Fourteenth Amendments require any fact other than prior conviction that increases the maximum penalty for a crime must be charged in the indictment, submitted to a jury, and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 466.”

(Petition at 12; emphasis supplied.) I believe that this Court should grant the petition as to this issue and consider its merits. Accordingly, I dissent.


author: PER CURIAM.

text:
    Stuart C. DUBOSE v. Allison T. DUBOSE.
    2090714.
    Court of Civil Appeals of Alabama.
    Jan. 28, 2011.
    Rehearing Denied April 8, 2011.
    Certiorari Denied June 10, 2011 Alabama Supreme Court 1100841.
    James M. Gaines and Nancy S. Gaines of Gaines & Gaines, L.L.C., Magnolia Springs, for appellant.
    Gary L. Armstrong, Spanish Fort; and David A. Horton, Daphne, for appellee.
   PER CURIAM.

Stuart C. Dubose (“the husband”) appeals from an order of the Clarke Circuit Court divorcing him from Allison T. Du-bose (“the wife”). For the reasons stated herein, we conclude that the trial court’s order is not final, and, as a result, we are required to dismiss the appeal.

Because of the manner in which we resolve this appeal, a detailed recitation of the facts and procedural history is unnecessary. The husband and the wife were married in 1988. Three children were born of the marriage, one of whom was a minor at the time of trial.

The wife filed an action for a divorce from the husband on March 25, 2008. On July 9, 2009, the trial court entered an order indicating that the parties had stipulated to a divorce, leaving all other matters for trial. After the wife sought the entry of a more formal order from the trial court divorcing the parties, the trial court, on August 4, 2009, entered an order divorcing the parties and retaining jurisdiction to decide all the other matters related to the divorce in a subsequent proceeding.

On November 30, 2009, the trial court held a bench trial during which it received evidence relative to the division of the parties’ marital property, alimony, child custody, and child support. On March 29, 2010, the trial court entered an order in which it, among other things, divided the parties’ marital property, awarded sole custody of the parties’ minor child to the wife, ordered the husband to pay child support, and ordered each party to pay half of the minor child’s college expenses when the child enrolled in college. The husband filed a notice of appeal to this court.

The husband raises several grounds for reversal on appeal. Although it is the policy of this court to reach the merits of an appeal whenever possible, see Brindley Constr. Co. v. Flanagan Lumber Co., 441 So.2d 907, 909 (Ala.Civ.App.1983), in this case, we cannot do so. Although neither party has directly challenged this court’s appellate jurisdiction, this court is required to consider its jurisdiction ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997). With certain exceptions not pertinent to this case, this court’s appellate jurisdiction extends only to final judgments. § 12-22-2, Ala.Code 1975. “The issue of whether a judgment is final is jurisdictional.” Hardy v. State ex rel. Chambers, 541 So.2d 566, 567 (Ala.Civ.App.1989). Our supreme court has defined a “final judgment” as “a terminative decision by a court of competent jurisdiction which demonstrates there has been complete adjudication of all matters in controversy between the litigants within the cognizance of that court. That is, it must be conclusive and certain in itself.” Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623, 625 (Ala.1976).

To be considered final, a judgment ordering one of the parties to pay child support must, among other things, set forth the amount of the party’s child-support obligation. This is so, because “[wjhere a party has requested child support and the trial court’s purported judgment contains no conclusive assessment of the child-support obligation, the trial court has not completely adjudicated the matters in controversy between the parties.” Anderson v. Anderson, 899 So.2d 1008, 1009 (Ala.Civ.App.2004). See also Turner v. Turner, 883 So.2d 233, 234 (Ala.Civ.App.2003) (judgment not final when, among other things, it did not contain a “conclusive assessment” of the father’s child-support obligation).

With regard to the calculation of child support in this case, the trial court’s order stated:

“Child support shall be paid to the [wife] in accordance with Rule 32[, Ala. R. Jud. Admin.,] modification tables effective January 1, 2009. The income for the parties will be[,] for the [wife,] her 2007 tax return showing a gross income of $70,292[,] and the [husband’s] gross income as defined by said Rule 32 shall be the average of [his] gross income for his 2006, 2007, and 2008 income-tax years. The [husband] will provide to the [wife]’s attorney these tax returns prior to the signing of this agreement for the calculation of child support. This ... figure will be divided by 12 for a monthly income that will be used along with the [wife’s] income to establish a monthly child support for [the minor child].
“An interim child-support amount shall be set at $400 per month for the parties’ minor child, by agreement of the [husband]. The court reserves the right to raise or lower this amount upon motion of any party and proof of [the husband]’s income.
“[The husband] shall submit the above information within 30 days.”

Thus, although the order required the husband to pay child support and provided the manner in which child support ultimately was to be calculated, the order did not provide the exact amount of the husband’s child-support obligation beyond providing for an “interim” amount of child support pending the ordered calculations. We also note that a subsequent paragraph of the order provided that “neither party shall pay monthly child support payment[s].”

Given the lack of conclusiveness and certainty in the order as to the issue of child support, see Jewell, 331 So.2d at 625, the order was not a final judgment and this court does not have jurisdiction over the husband’s appeal. Thus, we must dismiss the appeal. See Morgungenko v. Dwayne’s Body Shop, 23 So.3d 671, 674 (Ala.Civ.App.2009) (“This court must dismiss an appeal from a nonfinal judgment.”).

The wife’s request for an attorney’s fee on appeal is denied.

APPEAL DISMISSED.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.

PITTMAN, J., recuses himself.


author: THOMAS, Judge.

text:
    J.S. and R.S. v. ETOWAH COUNTY DEPARTMENT OF HUMAN RESOURCES. L.S. v. Etowah County Department of Human Resources.
    2091152 and 2091183.
    Court of Civil Appeals of Alabama.
    Feb. 4, 2011.
    Rehearing Denied (as to No. 2091183) May 20, 2011.

      Randy Phillips of Stover, Stewart & Phillips, LLC, Gadsden, for appellant J.S.

      S. Vincent Smith, Albertville, for appellant R.S.
    Jacob A. Millican of Jennings Law Office, Gadsden, for appellant L.S.
    Sharon E. Fiequette, asst. atty. gen., and Kimberly J. Dobbs, asst. atty. gen. and staff atty., Department of Human Resources, for appellee.
   THOMAS, Judge.

J.S. (“the father”) appeals the juvenile court’s judgment terminating his parental rights to C.S., H.S., and W.S. L.S. (“the mother”) appeals the juvenile court’s judgment terminating her parental rights to A.S., C.S., H.S., and W.S. R.S. (“the paternal grandmother”) also appeals the juvenile court’s judgment terminating the parents’ parental rights. We affirm the juvenile court’s judgment as to the father and the mother, and we dismiss the paternal grandmother’s appeal.

Facts and Procedural History

On June 10, 2010, the Etowah County Department of Human Resources (“DHR”) filed in the juvenile court its petition to terminate the father’s and the mother’s parental rights to the children. On July 28, 2010, the paternal grandmother filed a motion styled “motion to intervene and motion for custody of minor child”; the paternal grandmother sought custody of A.S. The paternal grandmother’s motion to intervene was granted. The matter went to trial on August 4, 2010. The juvenile court entered a judgment on August 24, 2010, terminating the father’s and the mother’s parental rights to all the children and denying the paternal grandmother’s motion for custody of A.S.

The trial court set forth the pertinent facts in its August 24, 2010, judgment:

“There are four children who are the subject of the Petition seeking Termination of Parental rights. The children are [A.S.], born April 29, 2000, [C.S.], born August 26, 2003, [H.S.], born February 3, 2006 and [W.S.] born September 5, 2008. [The mother] is the mother of all four children. [T.D.] is the alleged father of [A.S.]. [The father] is the father of [C.S.], [H.S.], and [W.S.]. Everyone entitled to Notice of said Petition and Hearing received notice.
“This family has a long history of instability, domestic violence, and drug abuse. Over the past 10 to 11 years, [DHR] has received multiple reports, conducted multiple investigations, and offered multiple services in regard to this family. In 1999, a Child Abuse/Neglect report of physical abuse was made to Marshall County Department of Human Resources listing [the mother] and her siblings as persons at risk. At the age of 14, [the mother] gave birth to her first child, [A.S.] on April 29, 2000. In 2001, a report was made to [DHR] that [the mother] was responsible for the physical abuse of [A.S.] [DHR] attempted to work with the mother without success. At [DHR’s] request, custody of [A.S.] was granted to the maternal grandmother ... in 2002.
“[The mother] was 16 years old and [the father] was 28 years old when they began dating. [The mother] and [the father] married and their first child, [C.S.], was born August 26, 2003. Within two months of [C.S.’s] birth, [DHR] received a report that the baby had been physically abused by the parents. [The parents] voluntarily gave custody of [C.S.] to the paternal aunt and uncle ... through a private attorney. [DHR] offered [the parents] services which they refused.
“Another report was made regarding [the parents] in 2004 to the Marshall County Department of Human Resources regarding an issue of domestic violence. [DHR] again offered [the parents] services which [the parents] accepted. The services were continued in Etowah County. In September of 2004, [the parents] regained custody of [C.S.] with [DHR] having protective supervision. [DHR] closed the case in early 2006.
“[DHR] received two more reports in 2007. In April of 2007 a report alleged there was another episode of domestic violence and that the children were living in an unsanitary condition. [The mother] denied the allegations, however[;] she admitted that following the April 2007 report the children were placed outside the home in a safety plan until the home was cleaned. In December of 2007, [DHR] performed a prevention assessment following a report that [the mother] was medicating [A.S.] to make her sleep. [The mother] denied the allegation.
“In November 2008, [DHR] received a report alleging [the parents] were arguing at the children’s school. [The mother] denied this allegation. [The father] testified that an incident did occur at the school but that he was arguing with another family member, not [the mother],
“The current case began on April 19, 2009 when [DHR] received a report alleging [the parents] had been arguing and that [the mother] had threatened to kill her children. The children were placed with [the mother’s] sister ... through a safety plan and the case was opened to services. Although [the mother] denies she violated the safety plan, [DHR] requested and received a pick-up order on May 4, 2009 and a 72 hour Shelter Care hearing was held on May 5, 2009. [DHR] was awarded custody of the children and the children were placed with their paternal aunt and uncle.... An Adjudicatory Hearing was held on June 10, 2009 and custody of the minor children was transferred to [DHR]. In July of 2009 a report was made that there had been sexual behavior between the [paternal aunt and uncle’s] son and [A.S. and C.S.]. The children were interviewed by the Barrie Center for Children. No charges were filed and Beth Hughes testified that in her opinion the behavior was nothing more than normal exploratory behavior. The children were removed from the [paternal aunt and uncle’s] home and placed into foster care on August 21, 2009 following a hearing on a motion filed by the mother. The mother’s motion alleged, in part, that the children were not safe in the [paternal aunt and uncle’s] home and that [DHR] had refused to provide her services to assist her in being reunified with her children.
“The children have been in [DHR’s] custody since May 4, 2009. [DHR] has had multiple Individual Service Plan [ (TSP’) ] meetings with this family and repeatedly has offered the parents services. Although each denies responsibility, both parents admit to a history of domestic violence. The parents have divorced. [The mother] obtained a felony warrant against [the father] for domestic violence and that case currently is pending in Etowah County. Both parents also admit to a long history of drug abuse. Services offered by [DHR] have included individual counseling, psychological assessment, parenting classes, anger management classes, drug screens, and supervised visitation.
“Dr. Dennis Sizelove performed a psychological evaluation on [the father] on May 6, 2009. Dr. Sizelove’s diagnoses for [the father] included polysubstance dependence, undifferentiated somato-form disorder, and adjustment disorder with mixed anxiety and depressed mood. Dr. Sizelove recommended, in part, that [the father] participate in counseling or therapy and in anger management classes. During his testimony at this hearing, [the father] agreed that he currently is not ready or able to provide a home for his children. Soon after the children were placed in [DHR’s] custody, [the father] allowed a female friend to stay at his home. While [the father] was at work on August 19, 2009, a methamphetamine lab exploded at [the father’s] house and the woman was transported by Lifesaver helicopter to UAB hospital to be treated for severe burns sustained in the explosion. [The father] did not begin to participate in the color code drug screen program until May 27, 2010 at which time he tested positive for methadone and marijuana. [The father] began but did not finish counseling with Dr. Bill Green. [The father] did complete anger management classes in April of 2010. [The father] currently is living with a girlfriend whose visitation rights with her own children were terminated when she went to prison in Florida. [The father] testified that he would like to see the minor children placed with his mother, [the paternal grandmother].
“In the current case, [the mother] agreed to participate in individual counseling, obtain her GED, and obtain stable housing and employment. [The mother] was diagnosed several years ago with bipolar disorder and has a history of noncompliance with her treatment. Dr. Dennis Sizelove performed a psychological evaluation on [the mother] on April 28, 2009. Dr. Sizelove’s diagnoses for [the mother] included post-traumatic stress disorder, bipolar disorder, cannabis and nicotine dependence, amphetamine abuse, and personality disorder, not otherwise specified with borderline, antisocial and paranoid features. Dr. Sizelove recommended, in part, that [the mother] participate in counseling or therapy. Once [the mother] learned about Dr. Sizelove’s diagnoses, she angrily confronted him in his office prompting him to make an incident report. At an ISP meeting, [the mother] agreed to begin counseling with Beth Hughes[;] however, [the mother] failed to return Ms. Hughes’ telephone calls or schedule an appointment. [The mother] was then given an opportunity to select her own counselor. At some point [the mother] initiated her own counseling at Mountain View Hospital and then [the mother] requested [that DHR] arrange counseling with Carol Costner which it did.
“In December of 2009 and again in January of 2010, [the mother] attempted to commit suicide by taking an overdose of medication. Following both suicide attempts, [the mother] was admitted to Gadsden Regional Medical Center and was evaluated and treated by a psychiatrist. Following each hospital discharge, [the mother] failed to take her medications as ordered and failed to follow the psychiatrist’s recommended outpatient treatment. Following her January 2010 release from the hospital, [the mother] was arrested on an outstanding warrant for theft of property. [The mother] admitted she stole from her aunt and that as a result entered into the Etowah County drug court program. Carol Costner discharged [the mother] in May, 2010 because of [the mother’s] lack of insight regarding her own behavior and her lack of progress.
“Almost immediately following her separation from [the father], [the mother] began a relationship with a married man. Since this case began, [the mother] has had at least 4 different residences. In December 2009, [the mother’s] boyfriend moved out of their home and on that same day [the father] moved in. Within a few days, [the father] moved back out of the home and the boyfriend moved back in. While living in Altoona, Alabama, [the mother] called the police on at least one occasion alleging she was afraid of her boyfriend. At the time of this hearing, [the mother] was still in a relationship with her boyfriend. [The mother] testified that she had received her GED and that she currently was compliant with the drug court program. However, [the mother] also testified that she did not intend to take any medicine for her bipolar disorder because she wanted to be able to feel her emotions. [The mother’s] application for social security disability has been approved and she does not plan to work.
“The history between [the mother] and her former in-laws shows significant fluctuations between cooperation to antagonistic. [The parents] voluntarily gave [the paternal aunt and uncle] custody of [C.S.] when she was an infant[;] in the instant case, [DHR] placed the children with the [the paternal aunt and uncle]. At that time the paternal grandmother also lived with the [the paternal aunt and uncle]. That placement was disrupted by [the mother]. In August 2009, the Court ordered [DHR] to remove the children from the [paternal aunt and uncle’s] home based in part on [the mother’s] insistence that the children were in danger in the home and would be safer in foster care. Less than a year later, at a July 8, 2010 ISP meeting, [the mother] told all those present that she and [the paternal aunt] were best friends. At the termination hearing, [the mother] testified that if the minor children were not returned to her custody that she wanted them to be placed with [the paternal grandmother].
“Counselor Beth Hughes testified that in her opinion the children should not be placed with relatives. [The mother’s] behavior repeatedly has created conflict and disrupted the minor children’s placements with the original safety plan, the [paternal aunt and uncle], and with their first foster mother [A.F.], [The mother] maintains contact with the children by telephone and supervised visits. [The mother] continues to disrupt the children’s stability by sharing adult information and family drama with them, by including them in decisions regarding her relationships with her boyfriend and [the father], by telling them about her moves, and by telling them they will be coming home again. Further, Beth Hughes testified that if the children were placed with [the paternal grandmother] she did not believe [the paternal grandmother] would be able to protect the children from the family drama or be able to prevent [the mother], [the father], and/or the [paternal aunt and uncle] from disrupting the children’s sense of stability. Moreover, a placement with [relatives] could be extremely damaging to the siblings’ bond, and to [A.S.] who is not related to [the father’s family]. In Beth Hughes’ professional opinion, the children need permanency immediately and that they will do much better individually and as a sibling group outside of the family unit.
“Counselor Beth Hughes has provided counseling to the three older children, [A.S.], [C.S.], and [H.S.]. [H.S.] was 3 years old when she came into foster care and has needed very little counseling. Beth Hughes testified that [A.S.] has been diagnosed with [attention deficit/hyperactivity disorder], and suffers from anxiety and depression. [C.S.] suffers from anxiety. Both [A.S.] and [C.S.] indicated that their parents argued often and it scared them. [A.S.] also indicated that she often was the caregiver for her younger siblings, changing diapers, fixing bottles and putting baby [W.S.] to sleep. Ms. Hughes testified that one of the minor children’s biggest strengths is their close sibling bond.
“The two older children are very aware of the pending petition asking for the termination of the parents’ parental rights. [A.S.] feels that [the father] is to blame for her separation from her mother and that the [the paternal aunt and uncle] allowed [C.S.] to be sexually molested by their son. Moreover, she feels that she is treated differently by the [paternal aunt and uncle] and [the paternal grandmother] because she is not a blood relation. [A.S.] repeatedly and emphatically has stated she does not want to live with the [paternal aunt and uncle] or with [the paternal grandmother].
“The [paternal aunt and uncle] and [C.S.] have had a close bond since she was an infant. [C.S.] would like to live with the [paternal aunt and uncle]. Because of their opposing wishes, [A.S.] and [C.S.] have been at odds with each other and both are experiencing a high level of anxiety caused by their conflict and the issue of their permanency. [H.S.] appears to have a close bond with her siblings and has been upset by the current conflict between her older sisters.
“Both parents were asked to provide a list of potential relative resources. [The father] provided the names of his sister and brother-in-law, [the paternal aunt and uncle], and ... [the paternal grandmother], All three relatives were living in the [paternal aunt and uncle’s] home at the time the Petition for Termination of Parental Rights was filed. The [paternal aunt and uncle’s] home is the home the Court ordered the children to be removed from in August of 2009. At the July 8, 2010 ISP meeting, [the paternal grandmother] stated she had obtained her own two bedroom and one bath house. However, her plans for the minor children while she is at work is for the [paternal aunt and uncle] to babysit. On July 28, 2010 [the paternal grandmother] filed a Motion to Intervene and Motion for Custody. [The paternal grandmother] testified that she waited to intervene because she thought the children would be returned to their parents. [The paternal grandmother] testified that if the Court granted her custody of the children she would take an early retirement from work. [The paternal grandmother’s] retirement income would be $900.00 per month and her basic expenses would be over $1,400 per month. [The paternal grandmother] testified that prior to the April 2009 incident ... she never saw any concerns about [the parents’] ability to parent the children. Moreover, [the paternal grandmother] believed if she had custody of the children and the parents seemed to be doing better in the future the children should be returned to their custody. [The paternal grandmother] is not a viable relative resource because she is not a relative of [A.S.], has a lack of protective capacity, and has limited resources.
“[The mother] named [the maternal grandmother] and her sister ... as potential relative resources. [The maternal grandmother] was not approved as a viable relative resource because she told [DHR] that she could not care for the children unless [DHR] allowed [the mother] to live with her and care for the children while she worked at night and while she slept during the day. [The mother’s sister] was the initial safety plan for the children which was disrupted when the mother was allowed to take the children out of the home unsupervised.
“The minor children have been in [DHR’s] custody since May 4, 2009. The minor children are in need of and entitled to the opportunity to have a permanent home. There are no suitable relative resources for the minor children.”

The mother filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., on September 3, 2010, which the juvenile court denied. The father, the mother, and the paternal grandmother timely filed their appeals.

Standard of Review

The juvenile court entered its judgment after receiving ore tenus testimony.

“ ‘ “ ‘[Wjhen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” ’ Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). ‘“The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Wattman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

Discussion

Under Alabama law,

“[a] juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990).”

B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004). Concerning the first prong of the test, the petitioner must prove by clear and convincing evidence that grounds for termination exist. See § 12-15-319, Ala. Code 1975; and Bowman v. State Dep’t of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988). Section 12-15-319 reads, in part:

“(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following:
“(1) That the parents have abandoned the child, provided that in these cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2) Emotional illness, mental illness, or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of a duration or nature as to render the parent unable to care for needs of the child.
“(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by the treatment of a sibling.
“(4) Conviction of and imprisonment for a felony.
“(5) Commission by the parents of any of the following:
“a. Murder or manslaughter of another child of that parent.
“b. Aiding, abetting, attempting, conspiring, or soliciting to commit murder or manslaughter of another child of that parent.
“c. A felony assault or abuse which results in serious bodily injury to the surviving child or another child of that parent. The term serious bodily injury shall mean bodily injury which involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
“(6) Unexplained serious physical injury to the child under those circumstances as would indicate that the injuries resulted from the intentional conduct or willful neglect of the parent.
“(7) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
“(8) That parental rights to a sibling of the child have been involuntarily terminated.
“(9) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of support of the child, where the parent is able to do so.
“(10) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the Department of Human Resources, or any public or licensed private child care agency, and agreed to by the parent.
“(11) Failure by the parents to maintain consistent contact or communication with the child.
“(12) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”

“Clear and convincing evidence” is “ ‘[e]vi-dence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’ ” L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting § 6-11-20(b)(4), Ala.Code 1975).

Initially, the mother alleges that Talessia English, the DHR caseworker assigned to the case, testified at trial “that up until the time of the permanency hearing when the ^juvenile court] ordered that a Petition to Terminate Parental rights be filed, it was the intent of DHR to continue to try and reunite the children with their Parent or Parents,” and, thus, she argues that the juvenile court “erred in ordering [DHR] to file for termination of parental rights.” We will not, however, consider this argument on appeal because it was not properly preserved for our review. The mother did assert in her postjudgment motion that “[d]uring a permanency hearing on May 20, 2010 The Honorable District Court Judge, Wayne Owen, Ordered [DHR] to File a Petition for termination within 2 months of the permanency hearing.” However, nothing in the record demonstrates that the mother argued before the juvenile court that such action was error. Because the mother failed to raise this argument below, we will not consider it on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“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.”).

Next, the mother argues that there was no clear and convincing evidence in the record to support the juvenile court’s judgment terminating her parental rights. Specifically, the mother relies on Fitzgerald v. Fitzgerald, 490 So.2d 4 (Ala.Civ.App.1986), and argues that a juvenile court must consider a parent’s present circumstances, as well as his or her past history, in a termination proceeding. The mother then appears to argue that her present circumstances, specifically the facts that she had obtained her GED, had remained drug and alcohol free for several months, had obtained a house big enough for her and the children, and had begun receiving Social Security disability payments, were such that any evidence of her past history was irrelevant, and, thus, she argues, there was no clear and convincing evidence to support the juvenile court’s judgment terminating her parental rights to the children. We disagree.

Nothing in the record indicates that the juvenile court did not properly consider all circumstances, past and present, in terminating the mother’s parental rights. As stated in its judgment, the juvenile court considered the facts that, at the time of the trial, the mother had received her GED and was “compliant with the drug program.” However, when the record is considered in its totality, clear and convincing evidence was presented from which the juvenile court could have found that the mother was presently “unable or unwilling to discharge [her] responsibilities to and for the child[ren], or that the conduct or condition of the [mother] rendered] [her] unable to properly care for the children] and that the conduct or condition is unlikely to change in the foreseeable future-” § 12-15-319(a).

As set forth above, the juvenile court relied upon extensive and undisputed evidence in support of its judgment terminating the mother’s parental rights. In summary, the record establishes that the mother has a long history of instability, domestic violence, drug abuse, and DHR involvement. The juvenile court’s judgment also set forth evidence concerning the current case, which began on April 19, 2009, when DHR received a report alleging that the parents had been arguing and that the mother had threatened to kill the children. The record indicates that the mother has serious psychological disorders, including bipolar disorder, and that the mother refuses to submit to proper treatment of her disorders. The record also indicates that the mother has attempted to commit suicide on two separate occasions. The record indicates that the mother has not established a stable home environment for the children and is dating a married man. The record also indicates that DHR offered services, including individual counseling, psychological assessment, parenting classes, anger-management classes, drug screens, and supervised visitation. As set forth in the juvenile court’s judgment, the record is replete with clear and convincing evidence to support the juvenile court’s judgment terminating the mother’s parental rights.

Next, the mother relies on M.A.J. v. S.F., 994 So.2d 280 (Ala.Civ.App.2008), and argues that she was not allowed sufficient time to rehabilitate herself. The mother argues that the period from August 2009, when the children were placed in foster care, to August 2010, when the mother’s parental rights were terminated, was not a reasonable amount of time to rehabilitate herself given the severity of her condition. However, the mother failed to raise this argument before the juvenile court. Because the mother failed to raise this argument below, we will not consider it on appeal. Andrews, 612 So.2d at 410 (“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.”).

Regardless, in M.A.J., this court held that

“ ‘[a]t some point, ... the child’s need for permanency and stability must overcome the parent’s good-faith but unsuccessful attempts to become a suitable parent.’ M.W. v. Houston County Dep’t of Human Res., 773 So.2d 484, 487 (Ala.Civ.App.2000). Consistent with that statement, ... we hold that when DHR timely exerts reasonable rehabilitation and reunification efforts, the parents generally shall have 12 months from the date the child enters foster care to prove that their conduct, condition, or circumstances have improved so that reunification may be promptly achieved.
“We have also held that ‘[t]he point at which the child’s needs overcome the parent’s right to be rehabilitated must be determined based on the facts of each individual case.’ Talladega County Dep’t of Human Res. v. M.E.P., 975 So.2d 870, 374 (Ala.Civ.App.2007). That statement recognizes that there may be cases in which the circumstances dictate that a lesser or greater period of rehabilitation would be reasonable. Due to the emphasis on prompt permanent disposition of children in foster care, the juvenile courts should only extend the period of rehabilitation when the evidence establishes that a limited additional amount of time or effort will necessarily result in the rehabilitation of the parent and accomplishment of the goal of family reunification or that an equally ‘compelling reason’ justifies additional time.”

994 So.2d at 291.

In the present case, the mother was given 12 months from the time the children entered foster care until the juvenile court entered its judgment terminating her parental rights. The mother has failed to show a “compelling reason” as to why the period for her rehabilitation should be extended beyond the 12-month period. The mother argues that the 12-month rehabilitation period she was given was “an unreasonable amount of time to expect lasting change given the severity of [her] condition.” The mother argues that “her need for help and/or the lack of DHR to provide her services that would help her in the rehabilitation process” is a compelling reason for granting her additional time to be rehabilitated. We disagree. Although the mother had made some strides in her rehabilitation, the evidence shows that the mother refused to participate in the counseling that DHR had arranged for her and that the mother persistently refused to take medication for her bipolar disorder. The mother also refused to follow her outpatient-treatment guidelines following her two attempted suicides. Based on the mother’s demonstrated refusal to participate in the services offered by DHR and her refusal to treat her bipolar disorder, there was certainly evidence to support the juvenile court’s conclusion that the children’s interest in permanency had overcome the mother’s interests in rehabilitation.

The father also raises the argument on appeal that, given additional time, he is capable of being rehabilitated. However, the father does not allege that any particular compelling reason would justify extending the rehabilitation period beyond the presumptively adequate 12-month period. Further, even though the father had made some strides in rehabilitating himself, he indicated at trial that he is currently unable to care for the children. Therefore, the juvenile court’s conclusion that the children’s interest in permanency had overcome the father’s interest in rehabilitation is supported by the record.

Next, the father, the mother, and the paternal grandmother argue that the juvenile court erred in determining that the paternal grandmother was not a viable alternative to termination of the parents’ parental rights. In R.L.M.S. v. Etowah County Dep’t of Human Resources, 37 So.3d 805 (Ala.Civ.App.2009), this court held that,

“[bjefore terminating parental rights, a juvenile court must determine that there are no viable alternatives. Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). One viable alternative is placement of the child at issue with a suitable relative qualified to receive and care for the child while the parent completes the rehabilitative process, when such placement serves the best interests of the child. See Ex parte J.R., 896 So.2d 416 (Ala.2004). A relative is suitable and qualified to receive and care for a child when the relative ‘can safely and properly discharge the parental responsibilities of meeting the child’s needs during the child’s minority.’ J.B. v. Cleburne County Dep’t of Human Res., 991 So.2d 273, 283 (Ala.Civ.App.2008). Whether a relative is suitable to assume custody of a child and whether such placement serves the best interests of the child are both questions of fact to be determined by the juvenile court. See T.B. v. Cullman County Dep’t of Human Res., 6 So.3d 1195, 1204-05 (Ala.Civ.App.2008).”

37 So.3d at 812.

Concerning the paternal grandmother’s appeal, the paternal grandmother’s only argument on appeal is that there was no credible evidence to support the juvenile court’s judgment that she was not a viable alternative to termination of the parents’ parental rights. The paternal grandmother does not argue that the juvenile court erred in denying her petition for custody. In D.M. v. Walker County Department of Human Resources, 919 So.2d 1197 (Ala.Civ.App.2005), this court addressed an appeal in which a child’s aunt challenged a juvenile court’s decision to terminate the parental rights of the child’s parents; this court stated:

“In her brief on appeal, the aunt has not argued that the juvenile court erred in denying the April 14, 2004, joint petition for custody to which she was a party. Rather, the aunt argues issues that pertain only to the propriety of that part of the juvenile court’s September 29, 2004, judgment in which the court ordered that the parents’ parental rights be terminated. However, the aunt has no legally protected parental right with regard to the children at issue. See State v. Property at 2018 Rainbow Drive, [740 So.2d 1025 (Ala.1999) ]. Further, the aunt may not assert arguments on behalf of the parents.
“ ‘ “ ‘[A] litigant may not claim standing to assert the rights of a third party.’ ” Ex parte Izundu, 568 So.2d 771, 772 (Ala.1990) (quoting Jersey Shore Med. Ctr.-Fitkin Hosp. v. Estate of Baum, 84 N.J. 137, 417 A.2d 1003 (1980)). “A party lacks standing to invoke the power of the court in his behalf in the absence of a ‘concrete stake in the outcome of the court’s decision.’ ” 568 So.2d at 772 (quoting Brown Mech. Contractors, Inc. v. Centennial Ins. Co., 431 So.2d 932, 937 (Ala.1983)).’
“Lott v. Eastern Shore Christian Ctr., 908 So.2d 922, 932 (Ala.2005). We conclude that the aunt lacks standing to prosecute the issues raised in her brief on appeal; therefore, we must dismiss her appeal. Goodyear Tire & Rubber Co. v. Moore, 900 So.2d 1239 (Ala.Civ.App.2004).”

919 So.2d at 1205-06 (footnote omitted).

Similarly, in the present case, the paternal grandmother has no legally protected parental rights in the children, and she cannot assert arguments on behalf of the children’s parents. We conclude that the paternal grandmother lacks standing to prosecute the issues raised in her brief; accordingly, we dismiss her appeal.

The father and the mother both argue on appeal that the juvenile court’s judgment holding that the paternal grandmother was not a viable alternative to the termination of their paternal rights was not supported by clear and convincing evidence. We disagree. In its determination that the paternal grandmother was not a viable alternative, the juvenile court relied on extensive evidence in the record. Specifically, as set forth in greater detail above, the juvenile court determined that the paternal grandmother “is not a viable relative resource because she is not a relative of [A.S.], has a lack of protective capacity, and has limited resources.” Therefore, we hold that the juvenile court’s judgment was supported by clear and convincing evidence.

Conclusion

Based on the foregoing, we affirm the juvenile court’s judgment as to the father and the mother. Further, we dismiss the appeal of the paternal grandmother.

2091152 — AFFIRMED IN PART; APPEAL DISMISSED IN PART.

2091183 — AFFIRMED.

THOMPSON, P.J., and PITTMAN,

BRYAN, and MOORE, JJ., concur.


author: BRYAN, Judge.

text:
    Ex parte The SALVATION ARMY. (In re Roy Williams v. First Choice Personnel, LLC, and The Salvation Army).
    2100033.
    Court of Civil Appeals of Alabama.
    Feb. 18, 2011.
    Certiorari Denied June 10, 2011 Alabama Supreme Court 1100638.

      Patricia J. Ponder and Katie L. Hammett of Hand Arendall LLC, Mobile, for petitioner.
    Patrick J. Ballard of Ballard Law Office, Birmingham, for respondent.
   BRYAN, Judge.

The Salvation Army seeks a writ of mandamus ordering the Etowah Circuit Court to enter a summary judgment in its favor with respect to Roy Williams’s tort claims against it. The Salvation Army contends that it is immune to those claims under the exclusive-remedy provisions of the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”). We grant the petition and issue the writ.

Williams was employed by First Choice Personnel, LLC (“First Choice”), a temporary-employment agency. In September 2006, First Choice assigned Williams to work for The Salvation Army, a client of First Choice. Williams worked as a general laborer for The Salvation Army for approximately the next 10 weeks. On November 21, 2006, Williams was allegedly injured in an automobile accident while performing work for The Salvation Army.

On October 2, 2007, Williams sued First Choice and The Salvation Army. Williams alleged a claim for workers’ compensation benefits against First Choice, and he alleged claims of negligence and wantonness against The Salvation Army. The Salvation Army filed an answer asserting, among other things, that “the claims in [Williams’s] Complaint are barred by the exclusivity provisions of the ... Act.” On April 9, 2010, The Salvation Army filed a motion for a summary judgment, asserting that it was Williams’s “special employer” under the Act and, therefore, that the exclusive-remedy provisions of the Act bar Williams’s tort claims against The Salvation Army. Following a hearing, the trial court entered an order denying The Salvation Army’s summary-judgment motion. The Salvation Army petitioned the supreme court for a writ of mandamus directing the trial court to enter a summary judgment dismissing the tort claims on the ground that those claims are barred under the exclusive-remedy provisions of the Act. The supreme court then transferred the petition to this court on the ground that the petition fell within this court’s jurisdiction.

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

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

“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 (Ala.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 (Ala.1990).”

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

Initially, we address whether we may review, by a petition for a writ of mandamus, the trial court’s denial of The Salvation Army’s summary-judgment motion. The Salvation Army moved for a summary judgment on the ground that it is immune from tort liability under the exclusive-remedy provisions of the Act. “Mandamus review of the denial of a summary-judgment motion ‘grounded on a claim of immunity’ is an exception to the general rule against interlocutory review of the denial of summary-judgment motions. Ex parte Auburn Univ., 6 So.3d 478, 483 (Ala.2008).” Ex parte Simpson, 36 So.3d 15, 22 (Ala.2009) (emphasis omitted) (reviewing by mandamus petition the denial of a summary-judgment motion concerning legislative immunity and immunity under the Noerr-Pennington doctrine, under which “those who petition any department of the government for redress are generally immune from statutory liability for their petitioning conduct,” Sosa v. DIRECTV, Inc., 437 F.3d 923, 929 (9th Cir. 2006)). See also Ex parte Wood, 852 So.2d 705 (Ala.2002) (reviewing by mandamus petition the denial of a summary-judgment motion grounded on State-agent immunity).

Citing Ex parte South Carolina Insurance Co., 412 So.2d 269 (Ala.1982), Williams argues that the denial of a summary-judgment motion grounded on a claim of immunity under the exclusive-remedy provisions, as opposed to some other types of immunity, is not reviewable by mandamus petition. In that case, certain defendants, following the denial of their summary-judgment motions, petitioned the supreme court for a writ of mandamus, arguing that the Act provided them immunity from the claims against them. The supreme court denied the petition, stating that “it is obvious that the defendants are seeking to do by mandamus that which can be done on appeal” and that “[m]andamus cannot be used as a substitute for appeal.” 412 So.2d at 270. Accordingly, Williams has filed a motion to dismiss the mandamus petition.

However, in two subsequent cases, Ex parte McCartney Construction Co., 720 So.2d 910 (Ala.1998), and Ex parte Progress Rail Services Corp., 869 So.2d 459 (Ala.2003), our supreme court reviewed by a mandamus petition the issue of employer immunity under the Act. Those two cases concerned the denials of motions to dismiss, unlike Ex parte South Carolina Insurance Co., which concerned the denial of a summary-judgment motion. However, whether a claim of immunity is denied following a motion to dismiss or a summary-judgment motion appears to be immaterial to the issue whether such a denial may be reviewed by mandamus. See Ex parte Haralson, 853 So.2d 928, 931 n. 2 (Ala.2003) (“The denial of a motion to dismiss or a motion for a summary judgment generally is not reviewable by a petition for writ of mandamus, subject to certain narrow exceptions, such as the issue of immunity.”); compare, e.g., Ex parte Butts, 775 So.2d 173, 176 (Ala.2000) (reviewing the denial of motion to dismiss grounded on State immunity and State-agent immunity and stating generally that “a petition for a writ of mandamus is an appropriate means for seeking review of an order denying a claim of immunity”); and Ex parte Wood, supra (reviewing by mandamus petition the denial of a summary-judgment motion grounded on State-agent immunity). In light of the holdings in the more recent cases — Ex parte McCartney Construction Co. and Ex parte Progress Rail Services Corp. — we conclude that the trial court’s order denying The Salvation Army’s summary-judgment motion based on its assertion of immunity under the exclusive-remedy provisions of the Act is subject to mandamus review. See also Ex parte Simpson, supra; and Ex parte Wood, supra. Accordingly, we deny Williams’s motion to dismiss the mandamus petition.

In Bechtel v. Crown Central Petroleum Corp., 451 So.2d 793, 795 (Ala.1984), our supreme court concluded that an employer’s immunity under the exclusive-remedy provisions of the Act is an affirmative defense and, therefore, is subject to the pleading requirements of Rule 8(c), Ala. R. Civ. P. In its answer, The Salvation Army generally asserted the exclusive-remedy affirmative defense by stating that “the claims in [Williams’s] Complaint are barred by the exclusivity provisions of the ... Act.” Williams argues, however, that The Salvation Army was required to plead the exclusive-remedy defense with particularity. Williams contends, as he did before the trial court, that The Salvation Army insufficiently pleaded that defense by failing to plead it with particularity, and, consequently, argues Williams, the defense was waived.

In support of his argument that the exclusive-remedy defense must be pleaded with particularity, Williams cites cases concerning the affirmative defense of es-toppel. Our supreme court has stated that estoppel must be pleaded with particularity. RLI Ins. Co. v. MLK Ave. Redevelopment Corp., 925 So.2d 914, 925-26 (Ala.2005); Water Works & Sewer Bd. of Wetumpka v. City of Wetumpka, 773 So.2d 466, 469 (Ala.2000); Ex parte Luverne Geriatric Ctr., Inc., 480 So.2d 562, 568 (Ala.1985); and Kimbrell v. City of Bessemer, 380 So.2d 838, 839 (Ala.1980). Additionally, all averments of fraud, including an affirmative defense of fraud, must be pleaded with particularity. Rule 9(b), Ala. R. Civ. P.; and Patterson v. Liberty Nat’l Life Ins. Co., 903 So.2d 769, 782-83 (Ala.2004). However, estoppel and fraud defenses notwithstanding, Rule 8(c) simply requires that affirmative defenses must be “affirmatively set forth” in a responsive pleading. The Committee Comments on the 1973 Adoption of Rule 8 provide:

“Under this rule the prime purpose of pleadings is to give notice....
“... Under this rule, ‘plain notice’ of the nature of the defense being raised by the defendant is all that is required at the pleading stage. The facts pertinent to their various claims and defenses may be developed by discovery and pretrial procedures.”

In Brown v. Billy Marlar Chevrolet, Inc., 381 So.2d 191 (Ala.1980), our supreme court addressed whether specific factual allegations must be stated when pleading the affirmative defense of contributory negligence. Our supreme court concluded:

“While Rule 8(c)[, Ala. R. Civ. P.,] provides that, ‘In pleading to a preceding pleading, a party shall set forth affirmatively ... contributory negligence ...,’ we opine that extensive factual allegations of contributory negligence need not be set out in an answer. The answer here in general terms[, simply stating that the plaintiff was contributorily negligent,] is sufficient under the Rule. Cf. American Motorists Ins. Co. v. Napoli, 166 F.2d 24 (5th Cir.1948). See also 5 Wright & Miller, Federal Practice and Procedure, Civil, § 1274.”

381 So.2d at 193. Similarly, in Owings v. Gullett, 437 So.2d 1050, 1053 (Ala.Civ.App.1983), this court concluded that a succinct assertion of the affirmative defense of the statute of limitations complies with Rule 8(c). In light of those cases and the simple requirements of Rule 8(c), we conclude that the exclusive-remedy affirmative defense need not be pleaded with particularity. The Salvation Army’s plain assertion in its answer that the defense applies was sufficient.

We next address another procedural argument raised by Williams. Williams argues that The Salvation Army untimely submitted supplemental materials in support of its summary-judgment motion. Therefore, Williams argues, those materials should not have been considered by the trial court and should not be considered by this court. The Salvation Army filed its summary-judgment motion on April 9, 2010. The trial court ultimately scheduled a hearing on that motion for August 25, 2010. On August 18, 2010, seven days before the scheduled hearing, The Salvation Army filed a “supplement” to the summary-judgment motion. The supplement contained a reiteration of the arguments that The Salvation Army had made in its summary-judgment motion and the submission of the deposition testimony of Majorie Robertson, an officer of First Choice. On August 23, 2010, Williams filed his response to the April 9, 2010, summary-judgment motion, and he also moved to strike the supplement on the basis that it was untimely filed. In support of his response to the summary-judgment motion, Williams submitted portions of Robertson’s deposition, the very deposition that he moved to strike. The next day, on August 24, 2010, The Salvation Army filed a reply to Williams’s filings of the previous day, responding to Williams’s arguments. On August 25, 2010, Williams moved to strike as untimely The Salvation’s Army’s reply that had been filed on the previous day. On August 25, the trial court held a hearing on the summary-judgment motion. The trial court has never indicated whether it ruled on the motions to strike.

Williams contends that the filing of the supplement seven days before the hearing and the filing of the reply the day before the hearing violated Rule 56(c)(2), Ala. R. Civ. P. That rule provides that “[t]he motion for summary judgment, with all supporting materials, including any briefs, shall be served at least ten (10) days before the time fixed for the hearing,” unless the parties consent to less than 10 days’ notice. However, mere noncompliance with the notice requirement of Rule 56(c)(2) does not constitute reversible error absent a showing of prejudice. As our supreme court stated in Hilliard v. SouthTrust Bank of Alabama, N.A., 581 So.2d 826, 828 (Ala.1991):

“Once a party shows noncompliance with the notice requirement, the party then must show that the trial court abused its discretion by failing to comply with that requirement. To demonstrate an abuse of discretion, the party need only come forth with any showing that the denial of the full 10-day notice period worked to his prejudice.”

See also Peebles v. Mooresville Town Council, 985 So.2d 388, 392 (Ala.2007).

Even assuming, without deciding, that Rule 56(c)(2) was violated, we conclude that Williams has failed to establish that he was prejudiced by the noncompliance. In his answer to The Salvation Army’s mandamus petition, Williams acknowledges that, “regardless of whether the trial court did, or did not, strike” the allegedly untimely materials, he was entitled to prevail on the summary-judgment motion. Williams’s answer at 23 n. 7 (emphasis added). Thus, Williams seems to concede that the submission of the disputed materials did not prejudice him. Moreover, in the supplement, The Salvation Army merely reiterated the arguments made earlier in its timely summary-judgment motion and submitted Robertson’s deposition in further support of its arguments. When Williams subsequently filed his response to the summary-judgment motion, he also submitted portions of Robertson’s deposition in support of his arguments against entering a summary judgment. Accordingly, we do not see how Williams could have been prejudiced by the supplement. Regarding The Salvation Army’s reply filed the day before the hearing, that reply simply responded to the arguments made by Williams in his response to the summary-judgment motion. Williams clearly suffered no prejudice by the filing of the reply.

We next address the substantive issue in this case: whether The Salvation Army is immune to Williams’s tort claims under the exclusive-remedy provisions of the Act. “[T]he Act is the exclusive remedy when an employee is injured in an accident proximately resulting from, and that occurred while the employee was engaged in, the actual performance of the duties of his or her employment.” Ex parte Shelby County Health Care Authority, 850 So.2d 332, 338 (Ala.2002); see §§ 25-5-52 and -53, Ala.Code 1975. It is undisputed that First Choice, as a temporary-employment agency, is Williams’s “general employer.” The Salvation Army argues that it, as the client of First Choice, is also Williams’s employer under the Act, i.e., that it is Williams’s “special employer.” If The Salvation Army is Williams’s special employer, then Williams’s tort claims against it are barred by the exclusive-remedy provisions of the Act. That is, any potential claim Williams would have against The Salvation Army would be limited to the rights and remedies provided by the Act.

In Hicks v. Alabama Power Co., 623 So.2d 1050, 1052 (Ala.1993), our supreme court recited the applicable law:

“In Terry v. Read Steel Products, 430 So.2d 862, 865 (Ala.1983), this Court first held that a defendant could be a ‘special employer’ under [the] Act, and be held responsible for worker’s compensation but immune from tort liability for injuries sustained by an employee. We adopted the following three-pronged test to determine who is a ‘special employer’:
“ “When a general employer lends an employee to a special employer, the special employer becomes liable for workmen’s compensation only if
“ ‘(a) the employee has made a contract of hire, express or implied, with the special employer;
“ ‘(b) the work being done is essentially that of the special employer; and
“ ‘(c) the special employer has the right to control the details of the work.
“ ‘When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workmen’s compensation....’
“Terry, 430 So.2d at 865, quoting 1C A. Larson, The Law of Workmen’s Compensation, § 48 (1980).”

Williams acknowledges that he conceded before the trial court that The Salvation Army satisfied the second and third prongs of the test set out in Terry v. Read Steel Products, 430 So.2d 862 (Ala.1983); there appears to be no dispute concerning those two factors. The evidence indicates that the work Williams performed in this case was essentially that of The Salvation Army and that The Salvation Army had the right to control the details of his work. The parties dispute, however, whether Williams had a contract for hire with The Salvation Army. The Salvation Army contends that an implied contract for hire existed, but Williams argues that no such contract existed.

In several cases, Alabama appellate courts have addressed the issue whether clients of temporary-employment agencies were special employers. In Key v. Maytag Corp., 671 So.2d 96 (Ala.Civ.App.1995), this court discussed the law in this area:

“The supreme court has previously determined that a ‘special employer-employee’ relationship exists when the general employer is an employment agency or employment service which furnishes employees under contract, ‘such as Kelly Services, Inc., or Manpower, Inc.’ Hicks v. Alabama Power Co., 623 So.2d 1050 (Ala.1993). See Marlow v. Mid South Tool Co., 535 So.2d 120 (Ala.1988); Bechtel v. Crown Central Petroleum Corp., 495 So.2d 1052 (Ala.1986); Pettaway v. Mobile Paint Mfg. Co., 467 So.2d 228 (Ala.1985); Terry [v. Read Steel Prods., 430 So.2d 862 (Ala.1983) ].
“In Hicks and Gaut v. Medrano, 630 So.2d 362 (Ala.1993), the supreme court expounded on its previous holdings concerning the existence of a special employer-employee relationship when the general employer is an employment agency or service. It specifically found that under these circumstances, the employee had an implied contract with the special employer. In Hicks, the supreme court stated:
‘“In these cases [concerning temporary-employment agencies or employment-placement agencies], the general employer was nothing more than the bargaining agent or employment agent for the plaintiffs. When those plaintiffs contacted Kelly Services, Manpower, or Pep Services, it was not for the purpose of entering into employment with those companies to do the work of those companies; rather, the plaintiffs intended for the general employers to “market” them to secure employment with another, special employer. Once those plaintiffs were presented by the employment services to the special employers, those plaintiffs then entered into a contract of hire with those special employers.’
“[623 So.2d at 1054-55.]”

671 So.2d at 100.

In Key, this court determined that Magic Chef, a client of Temporary Resources, a temporary-employment agency, was a special employer under the Act. In its analysis, this court noted salient facts present in that case that had also been present in earlier cases finding clients of temporary-employment agencies to be special employers: “It is undisputed that Key applied for temporary employment with Temporary Resources and that Temporary Resources assigned him to Magic Chef. Magic Chef paid Temporary Resources for his services and Temporary Resources paid Key, but at a lesser rate.” Id.

In Gaut v. Medrano, 630 So.2d 362, 366 (Ala.1993), our supreme court succinctly explained:

“Terry v. Read Steel ... and three of the cases following it [Means v. International Systems, Inc., 555 So.2d 142 (Ala.1989); Marlow v. Mid South Tool Co., 535 So.2d 120 (Ala.1988); and Pettaway v. Mobile Paint Mfg. Co., 467 So.2d 228 (Ala.1985),] have involved general employers that were unambiguously temporary employment placement agencies. Terry and Pettaway were placed with them special employers by Manpower, Inc.; Marlow, by Kelly Services, Inc.; and Means, by Long’s Temporary Services, Inc. In such cases, the employee applies to the general employer for the specific purpose of temporary placement with special employers and thus necessarily agrees to a contract of hire with the special employer.”

The facts in this case reflect a typical situation in which an implied contract for hire has been found to exist between the client of a temporary-employment agency, and an employee. First Choice, a temporary-employment agency, hired Williams to perform general labor for clients of First Choice. As such, First Choice was the “bargaining agent” or “employment agent” of Williams. Key, 671 So.2d at 100. First Choice assigned Williams to work for The Salvation Army, and he worked for The Salvation Army under its control. Accordingly, there was an implied contract for hire between Williams and The Salvation Army, thus satisfying the first prong of the Terry test. The facts of this case are substantially similar to those of the typical temporary-employment cases cited above. As noted, there is no dispute that the other two prongs of the Terry test were satisfied. Accordingly, we determine that The Salvation Army was Williams’s special employer.

Williams cites several factors that he says suggest that he did not have a contract for hire with The Salvation Army. Several of those factors highlight the employment relationship that Williams had with First Choice in an attempt to suggest that there was not an employment relationship between Williams and The Salvation Army. For example, Williams notes his own testimony stating that he “worked for First Choice” as evidence indicating that he considered himself to be an employee of First Choice. Clearly, First Choice was Williams’s general employer. However, the pertinent issue is whether Williams was also an employee of The Salvation Army under the Terry test, i.e., whether The Salvation Army was Williams’s special employer. Whether Williams considered himself to be an employee of First Choice does not alter our analysis.

Similarly, certain provisions contained on Williams’s time sheet limiting the scope of his employment with The Salvation Army do not negate his status as an employee of The Salvation Army. For example, Williams’s time sheet, which recited terms of the agreement between First Choice and The Salvation Army, contained a provision stating that The Salvation Army could not allow Williams to drive an automobile without obtaining First Choice’s written permission. However, in Terry, a contract for hire was determined to exist despite a similar provision. 430 So.2d at 864, 866. See also Pettaway v. Mobile Paint Mfg. Co., 467 So.2d 228, 228, 230 (Ala.1985) (holding that a contract for hire existed despite a provision requiring written permission from the temporary-employment agency before the employee could handle vehicles or machinery).

Williams also relies on factors that, in other cases involving similar factors, did not prevent a determination that a contract for hire existed. For example, Williams notes that First Choice had previously assigned him to other clients before assigning him to The Salvation Army. However, our supreme court has found a contract for hire to exist when a temporary-employment agency had previously assigned an employee to other clients. See Pettaway, 467 So.2d at 228 (“On several occasions, Manpower sent Pettaway to different jobsites for the purpose of providing temporary labor.”). Williams also contends that the roughly 10-week period during which he worked for The Salvation Army is a relatively brief period that weighs against a determination that a contract for hire was formed. However, this fact is unpersuasive because a contract for hire has been found to exist in cases in which a temporary employee has been on the job for as little time as three days, Marlow v. Mid South Tool Co., 535 So.2d 120, 122-24 (Ala.1988), or two weeks, Pettaway, 467 So.2d at 229-30.

Lastly, we briefly address Williams’s contention that The Salvation Army has impermissibly presented an argument to this court that was not presented to the trial court. An appellate court cannot grant relief based on an argument presented for the first time to the appellate court. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). In this case, the allegedly new “argument” is not an argument but rather a single factual statement contained in Robertson’s deposition, namely her testimony indicating that The Salvation Army controlled Williams’s pay rate. The Salvation Army cites that evidence in support of its argument that it was Williams’s special employer, an argument that The Salvation Army presented to the trial court. Therefore, Williams’s argument on this issue has no merit.

In conclusion, we deny Williams’s motion to dismiss the petition for a writ of mandamus. The material facts establish that The Salvation Army was Williams’s special employer within the meaning of the Act. Therefore, under the exclusive-remedy provisions of the Act, The Salvation Army is immune to Williams’s tort claims. Accordingly, we grant The Salvation Army’s petition for the writ of mandamus, issue the writ, and direct the trial court to enter a summary judgment in favor of The Salvation Army with respect to Williams’s tort claims against it.

PETITION GRANTED; WRIT ISSUED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.