author:
SHAW, Justice.
     COBB, Chief Justice

text:
    Ex parte L & D TRANSPORTATION and George Berry. (In re Brian Jones v. L & D Transportation and George Berry).
    1090467.
    Supreme Court of Alabama.
    March 25, 2011.

      M. Jansen Voss of Scott, Sullivan, Streetman & Fox, P.C., Birmingham, for petitioners.
    J. Chris Cochran of Pittman, Dutton & Heliums, P.C., Birmingham, for respondent.
   SHAW, Justice.

L & D Transportation (“L & D”) and George Berry (collectively “the petitioners”), the defendants in an action brought by the plaintiff, Brian Jones, petition this Court for a writ of mandamus compelling the Tallapoosa Circuit Court to set this case for a jury trial rather than a bench trial. We grant the petition and issue the writ.

Facts and Procedural History

In March 2003, Jones was driving a motor vehicle on Highway 280 in Tallapoo-sa County. He was involved in a collision with a motor vehicle being driven by Berry.

In March 2004, Jones sued Berry and L & D, Berry’s employer, seeking damages for injuries Jones allegedly received in the accident; he alleged that Berry was acting in the line and scope of his employment with L & D at the time of the accident. Jones’s complaint demanded a trial by jury. The petitioners answered the complaint and also demanded a trial by jury.

In August 2004, the trial court dismissed the case pursuant to a motion filed by the petitioners, apparently on the ground that Jones had failed to obey an order of the trial court. The case was reinstated in November 2004. In November 2006, the petitioners again moved the trial court to dismiss the action, this time based on an alleged failure to prosecute, which motion the trial court granted in March 2007. Jones moved to reinstate the case, and the trial court held a hearing on Jones’s motion on May 9, 2007.

In an order entered on June 6, 2007, the trial court granted Jones’s motion to reinstate the case. In its order, the trial court noted, in part: “At the May 9, 2007 hearing, [Jones’s] new counsel advised the Court that, in an effort to further expedite this matter, they would voluntarily withdraw the ... jury demand.” The trial court further stated: “[T]he plaintiffs case is reinstated and plaintiffs jury demand is stricken.” (Emphasis and capitalization omitted.) The resulting entries on the case-action summary stated:

“06/06/2007 ... ORDER — REINSTATED AND JURY DEMAND STRICKEN.
“06/08/2007 ... BENCH/NON-JURY TRIAL REQUESTED.”

(Capitalization in original.)

In July 2009, Jones filed a motion to set the case for trial. On September 17, 2009, an entry appeared in the case-action summary stating that the case was “SET FOR: TRIAL — BENCH ON 12/01/2009.... ” (Capitalization in original.) On November 13, 2009, the petitioners filed a motion to reset the case for a jury trial. The trial court denied the motion on December 1, 2009. The petitioners now seek mandamus review of the trial court’s denial of their motion.

Standard of Review

“A petition for a writ of mandamus is the appropriate method of challenging a trial court’s denial of a demand for trial by jury.” Ex parte Jackson, 737 So.2d 452, 453 (Ala.1999).

“A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right 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) the properly invoked jurisdiction of the court.”

Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001).

Discussion

Alabama Const. 1901, Art. I, § 11, provides: “[T]he right of trial by jury shall remain inviolate.” See Ex parte Kurtts, 706 So.2d 1184, 1185 (Ala.1997) (“Section 11, Ala. Const. 1901, makes trial by jury a fundamental right.”). Similarly, Rule 38(a), Ala. R. Civ. P., provides: “The right of trial by jury as declared by the Constitution of Alabama or as given by a statute of this State shall be preserved to the parties inviolate.” This right, however, is subject to waiver. Mall, Inc. v. Robbins, 412 So.2d 1197, 1199 (Ala.1982) (“[N]o constitutional or statutory provision prohibits a person from waiving his or her right to trial by jury.”).

A demand for a jury trial may be withdrawn by consent of the parties. Rule 38(d), Ala. R. Civ. P. (“A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.... ”). The materials before us clearly reflect that, when this case was reinstated in June 2007 on Jones’s motion, Jones desired to withdraw his own jury demand. Although the parties dispute whether Jones’s jury demand was properly withdrawn under Rule 38(d), Ala. R. Civ. P., the petitioners maintain that their own timely request for a jury trial was never withdrawn or stricken. Nothing in the materials before us explicitly contradicts that assertion. Specifically, the orders of the trial court entered before September 2009 indicate only that Jones’s request for a jury trial had been stricken and that a bench trial was simply “requested.” The first indication by the trial court that the case would not actually be tried by a jury occurred when the trial court, on September 17, 2009, set the case for a bench trial.

In determining whether a party has waived a previous, timely request for a jury trial, we have noted that “[wjaiver of a jury demand may arise from ‘any conduct or acquiescence inconsistent with an intent to insist upon jury trial.’ ” Holman v. Alabama Farm Bureau Mut. Cas. Ins. Co., 476 So.2d 107, 108 (Ala.1985) (quoting Ingram v. Omelet Shoppe, Inc., 388 So.2d 190, 195 (Ala.1980)). In Holman and Ingram, the parties who had previously demanded trials by jury, but whose requests had not been ruled on, did not object to the fact that there was no jury until after the case had been tried in a bench trial. Similarly, in Bullock v. Howard, 717 So.2d 402, 403 (Ala.Civ.App.1998), the court noted that “participating in [a] non-jury trial without requesting a ruling on [a] jury demand, or without objecting to the lack of a jury, is inconsistent with an intent to insist upon a jury trial.” See also Brown Mech. Contractors, Inc. v. Centennial Ins. Co., 431 So.2d 932, 941 (Ala.1983) (holding that a party was estopped from seeking a jury trial because it assented to a nonjury trial in another proceeding that litigated its claim). Further, an objection to the lack of a jury made after trial has commenced comes too late and in such a case the right to a jury trial is waived. Raburn v. Bailes, 565 So.2d 122, 126 (Ala.1990).

The petitioners assert that they have taken no action inconsistent with their request for a jury trial. We agree. Jones suggests that the petitioners should have acted in June 2007 to secure a jury trial, but nothing in the materials before us indicates that the petitioners’ separate jury demand was refused by the trial court until September 2009, when the trial court scheduled a bench trial. No other conduct by the petitioners that could be considered inconsistent with an intent to insist upon a jury trial (or as a waiver) is identified.

When a “demand for a jury trial is made ... the demand is effective to compel a jury trial on all issues raised in the complaint, answer, compulsory counterclaim, and reply thereto. No judicial discretion is invoked.... ” Baggett v. Sims, 387 So.2d 792, 795 (Ala.1980). The facts of this case show that the petitioners timely demanded a jury trial under Rule 38(b), Ala. R. Civ. P. The petitioners’ request for a jury trial was never stricken and was never waived by consent under Rule 38(d), Ala. R. Civ. P. Further, no waiver, as identified by prior caselaw, e.g., Holman, Ingram, Bullock, Brown Meek Contractors, and Rabum, supra, occurred in this case. Therefore, the trial court exceeded its discretion in denying the petitioners’ motion to reset the case for a jury trial.

Conclusion

The petitioners are entitled to a jury trial. The petition is granted, and the trial court is instructed to set the case for a jury trial.

PETITION GRANTED; WRIT ISSUED.

WOODALL, STUART, BOLIN, PARKER, MAIN, and WISE, JJ„ concur.

MURDOCK, J., concurs in the result.

COBB, C.J., dissents.

COBB, Chief Justice

(dissenting).

I respectfully dissent. Alabama law is long settled that the right to a jury trial can be waived. See, e.g., Ex parte AIG Baker Orange Beach Wharf, L.L.C., 49 So.3d 1198 (Ala.2010). The case-action summary for this case shows a transfer of the case to the nonjury docket on June 8, 2007. The petitioners, in their reply brief to this Court, admit that “the case had been apparently transferred to the nonjury docket following the entry of the trial court’s June 7, 2007 order as reflected on case action summary sheet printed from the AlaFile electronic filing system.” Petitioners’ reply brief, at 4. Although this statement attempts to qualify the admission with an assertion that no explicit notice was ever sent to the petitioners, it does make clear that the information regarding the action taken by the trial court was available to the petitioners immediately after June 7, 2007. Moreover, it is noteworthy that the petitioners do not explicitly deny being aware of the understanding that the case had been set for a nonjury trial. Rather, they simply assert that they never explicitly withdrew their demand for a jury trial.

The critical question before this Court is whether the trial court exceeded its broad discretion in denying the petitioners’ motion to reset the case for a jury trial in light of their conduct up to that point in the litigation. I believe that a fair reading of the facts in this case show that the petitioners were aware that the trial court intended to set the case for a nonjury trial after the hearing in May 2007 when they at least appeared to acquiesce in that result. That result was further confirmed by the trial court’s actions in moving the case to the nonjury docket. Some two years later, after the parties had completed discovery and the case was set for a nonjury trial, the petitioners determined that the situation was not to their advantage and developed the argument advanced in this petition — that they had not explicitly waived their jury demand. They presented this argument to the trial court and were refused. Under these facts, I do not believe that the petitioners have shown the necessary “clear legal right” to afford them mandamus relief. Ex parte Synovus Trust Co., 41 So.3d 70 (Ala.2009); Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893 (Ala.1998). I believe that the petition is due to be denied. Therefore, I dissent.

      . This case was previously assigned to another Justice; it was reassigned to Justice Shaw on February 23, 2011.

      . Counsel for both sides present affidavit testimony outside the record disputing whether the petitioners consented to the withdrawal of Jones’s jury demand. These materials are not properly before this Court. Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala.2002) ("[T]his Court is bound by the record, and it cannot consider a statement or evidence in a party’s brief that was not before the trial court.”), but see Ex parte Guaranty Pest Control, Inc., 21 So.3d 1222, 1228 (Ala.2009) (considering affidavit testimony describing what occurred at a hearing, noting that the assertions in the affidavit were not denied by the opposing party and purported "to describe proceedings before the trial court”).


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    The ALABAMA BOARD OF EXAMINERS IN PSYCHOLOGY v. Leroy RICHARDSON, Psy.D.
    2080338.
    Court of Civil Appeals of Alabama.
    Sept. 25, 2009.
    Matthew Y. Beam of Hinton & Herndon, Montgomery, for appellant.
    Glen David King, Auburn; and Randolph P. Reaves, Montgomery, for appellee.
   PITTMAN, Judge.

The Alabama Board of Examiners in Psychology (“the Board”) appeals from a judgment of the Montgomery Circuit Court reversing an order of the Board that had suspended a license issued to Leroy Richardson to practice as a psychologist and that had imposed other sanctions against Richardson. We reverse the circuit court’s judgment.

The record reveals that Richardson was first licensed by the Board in 1997. From about that time until early 2003, Richardson was employed by the Alabama Department of Youth Services (“DYS”) as the campus psychologist at DYS’s Yacca Campus in the Birmingham area. During the time that Richardson worked at the Vacca Campus, he frequently arranged for “tours” of the campus for local youth whose behavior suggested they might later turn to crime. During those “tours,” visiting young people 10 to 15 years old were often fitted with metal leg shackles; they were also intermingled with the resident population and required to perform the same chores and to undergo many of the same experiences, including punishments, as the resident population. The record also reflects that the ostensible purpose of those tours was to convince the young visitors that changing their behavior for the better would be preferable to becoming a resident of the campus.

During Richardson’s tenure at the campus, visitors were brought in individually by parents, school administrators, and others, and the visitors would typically spend anywhere from two to eight hours inside the secure facility. With specific reference to those campus visits, the Board charged Richardson with failing to conduct initial assessments of the “tour” visitors, failing to obtain the informed consent of their parents or legal guardians, and failing to produce and maintain documentation of his work, practices identified by the Board as being in violation of Alabama statutes governing the practice of psychology. The Board’s administrative law judge (“ALJ”) reviewed testimonial evidence from an earlier Alabama Personnel Board hearing related to the “tour” program. The ALJ submitted proposed findings of fact and conclusions of law to the Board, and the Board adopted the ALJ’s recommendations and imposed sanctions on Richardson.

Pursuant to Ala.Code 1975, § 41-22-20, Richardson sought judicial review of the Board’s order in the Montgomery Circuit Court. After the parties had filed written submissions in support of their respective positions, the circuit court held a hearing, at which that court heard oral argument from the parties’ attorneys. The circuit court then entered a judgment reversing the Board’s order on the authority of Ala. Code 1975, § 41-22-20(k)(6) and (7); the court opined that the Board’s order was “clearly erroneous” in view of the evidence in the record and was “unreasonable, arbitrary, or capricious or characterized by an abuse of discretion or [was] a clearly unwarranted exercise of discretion.” The basis for the circuit court’s judgment was its view that the Board had failed to prove that a “professional relationship” had existed between Richardson and any of the children brought to the campus for the “tour” or their parents; in other words, in the view of the circuit court, the Board had failed to prove that Richardson actually had been providing “psychological services.” The circuit court then deduced, from its conclusion that Richardson had not been providing psychological services, that Richardson could not possibly have violated the ethical principles the Board charged him with violating.

Under Ala.Code 1975, § 34-26-46(a)(17), the Board is empowered to suspend or otherwise discipline, at its discretion, a psychologist who violates the code of ethics adopted by the rules and regulations of the Board. The code of ethics in force during the relevant period, 1997-2003, was the American Psychological Association’s Ethical Principles of Psychologists and Code of Conduct 1992, adopted by the Board pursuant to Ala. Admin. Code, Rule 750-X-6-.02. Ethical Principle 2.01, titled “Evaluation, Diagnosis, and Interventions in Professional Context,” provides as follows:

“(a) Psychologists perform evaluations, diagnostic services, or interventions only within the context of a defined professional relationship....
“(b) Psychologists’ assessments, recommendations, reports, and psychological diagnostic or evaluative statements are based on information and techniques (including personal interviews of the individual when appropriate) sufficient to provide appropriate substantiation for their findings.... ”

It was under that principle that the Board charged Richardson with having failed to conduct initial assessments of the “tour” visitors.

The Board further charged Richardson with failing to acquire informed consent from the children or their parents or legal guardians under Ethical Principle 4.02, entitled “Informed Consent to Therapy,” which states:

“(a) Psychologists obtain appropriate informed consent to therapy or related procedures, using language that is reasonably understandable to participants ....
“(b) When persons are legally incapable of giving informed consent, psychologists obtain informed permission from a legally authorized person, if such substitute consent is permitted by law.
“(c) In addition, psychologists (1) inform those persons who are legally incapable of giving informed consent about the proposed interventions in a manner commensurate with the persons’ psychological capacities, (2) seek their assent to those interventions, and (3) consider such persons’ preferences and best interests.”

Finally, with respect to Richardson’s failure to produce and maintain documentation of his consultations with the “tour” visitors, the Board cited two provisions of the Ethical Principles and Code of Conduct. Provision 1.23, entitled “Documentation of Professional and Scientific Work,” provides:

“(a) Psychologists appropriately document their professional and scientific work in order to facilitate provision of services later by them or by other professionals, to ensure accountability, and to meet other requirements of institutions or the law.
“(b) When psychologists have reason to believe that records of their professional services will be used in legal proceedings involving recipients of or participants in their work, they have a responsibility to create and maintain documentation in the kind of detail and quality that would be consistent with reasonable scrutiny in an adjudicative forum....”

Also, provision 1.24, entitled “Records and Data,” provides that psychologists are to “create, maintain, disseminate, store, retain, and dispose of records and data relating to their research, practice, and other work in accordance with law and in a manner that permits compliance with the requirements of this Ethics Code.... ”

At the hearing in the circuit court, Richardson maintained, and the court agreed, that the Board had failed to prove a necessary predicate for the applicability of each of those ethical principles or provisions — in short, that the Board had failed to prove that Richardson had developed a “defined professional relationship” with the children, that he had conducted “therapy,” or that he had done any “professional” or “scientific work” or “practice” with the “tour” visitors. The circuit court noted the following facts, established in the record and not controverted on appeal, in support of its judgment: Richardson was required to meet with the “tour” visitors, their parents, or both upon their arrival at the campus; he spoke with them for only a few minutes; and he thereafter turned the “tour” visitors over to others at the facility and never spoke with them again.

The standard of appellate review to be applied by the circuit courts and by this court in administrative-law cases is the same. Alabama Dep’t of Youth Servs, v. State Pers. Bd., 7 So.3d 380, 384 (Ala. Civ.App.2008). The appropriate review standard is deferential toward the decision of the administrative agency:

“Judicial review of an agency’s administrative decision is limited to determining whether the decision is supported by substantial evidence, whether the agency’s actions were reasonable, and whether its actions were within its statutory and constitutional powers.... Judicial review is also limited by the presumption of correctness which attaches to a decision by an administrative agency.”

Alabama Medicaid Agency v. Peoples, 549 So.2d 504, 506 (Ala.Civ.App.1989) (citing cases). Also,

“[ejxcept where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute.”

Ala.Code 1975, § 41-22-20(k). “In reviewing the decision of a state administrative agency, ‘[tjhe special competence of the agency lends great weight to its decision, and that decision must be affirmed, unless it is arbitrary and capricious or not made in compliance with applicable law.’ ” Colonial Mgmt. Group, L.P. v. State Health Planning and Dev. Agency, 853 So.2d 972, 975 (Ala.Civ.App.2002) (quoting Alabama Renal Stone Inst., Inc. v. Alabama Statewide Health Coordinating Council, 628 So.2d 821, 823 (Ala.Civ.App.1993)). “Neither this court nor the trial court may substitute its judgment for that of the administrative agency.” Renal Stone, 628 So.2d at 823 (citing Alabama Medicaid Agency v. Norred, 497 So.2d 176, 177 (Ala.Civ.App.1986)). “This holds true even in cases where the testimony is generalized, the evidence is meager, and reasonable minds might differ as to the correct result.” Health Care Auth. of Huntsville v. State Health Planning Agency, 549 So.2d 973, 975 (Ala.Civ.App.1989) (citing State Health Planning & Res. Dev. Admin, v. Rivendell of Alabama, 469 So.2d 613, 615 (Ala.Civ.App.1985)). Further, “an agency’s interpretation of its own rule or regulation must stand if it is reasonable, even though it may not appear as reasonable as some other interpretation.” Sylacauga Health Care Ctr., Inc. v. Alabama State Health Planning Agency, 662 So.2d 265, 268 (Ala.Civ.App.1994). Finally, this court does not apply a presumption of correctness to a circuit court’s judgment entered on review of an administrative agency’s decision “because the circuit court is in no better position to review an agency’s decision than this court.” Alabama Bd. of Nursing v. Peterson, 976 So.2d 1028, 1033 (Ala.Civ.App.2007) (citing Clark v. Fancher, 662 So.2d 258, 261 (Ala.Civ.App.1994)).

In this case, in addition to the evidence noted by the circuit court in its order and set out above, the record reflects that the ALJ and the Board reviewed testimony from Richardson indicating that he had instructed Vacca security personnel whether to put particular “tour” visitors in shackles and that he had told the security personnel where on the campus to take the visitors. The ALJ asked Richardson: “So you made all decisions relevant to the child being here and what they would participate in or do while they were here; is that correct?”; Richardson then replied, “Right, sir.” Hence, although Richardson personally spent only a few minutes with each “tour” visitor, he admitted responsibility for the complete two- to eight-hour aversive experience that each visitor would have, which included Richardson’s making individualized decisions as to each visitor, such as whether leg shackles were appropriate. The record reviewed by the Board also contained conflicting evidence as to whether the hours-long experiences in question constituted “therapy” or “treatment,” an affirmative answer to which would then bring Richardson, having responsibility for “all decisions” regarding the visitors, within the practice of psychology and subject to the above-mentioned regulations and ethical principles and provisions.

It thus appears plain that the record contains substantial evidence, defined as “ ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved,’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)), to support the Board’s determination that Richardson had indeed established a professional relationship with the “tour” visitors — in other words, that he was providing therapy or psychological services and hence was subject to the rules and regulations governing the practice of psychology and the licensing of psychologists in Alabama — by receiving such visitors, making decisions regarding their hours-long experience at the campus, and sending them along to other campus workers so that the visitors might have the experiences Richardson had chosen for them. The Board’s determination is thus due to be upheld under the standard of review governing this case.

Richardson also contends that the circuit court’s judgment of reversal is proper on other grounds. The circuit court’s judgment reversing the Board’s order is premised, however, solely upon the proposition, which we have rejected, that the Board lacked authority to discipline Richardson because his activities did not constitute the practice of psychology and therefore were not within the Board’s regulatory jurisdiction. We thus do not reach the other grounds cited by Richardson as warranting reversal of the Board’s disciplinary order; rather, the propriety of those grounds should be decided by the circuit court on remand. See Covin v. Alabama Bd. of Exam’rs in Counseling, 712 So.2d 1103, 1107 & n. 1 (Ala.Civ.App.1998) (declining to address substantive defense raised by agency and agency members in administrative-review proceedings when circuit court’s judgment of dismissal had been based solely upon erroneous ground of lack of jurisdiction).

The circuit court’s judgment reversing the Board’s disciplinary order, in which the Board had concluded that Richardson was subject to the regulations and ethical principles and provisions governing the practice of psychology in Alabama, was erroneous. We reverse that judgment and remand the cause with instructions for the circuit court to consider the merits of any remaining issues that Richardson might have properly preserved in the Board proceedings and properly raised in that court.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Throughout the record, the “tour” program was referred to as a "Scared Straight" program, although that term was not preferred by Richardson.

      . Because we conclude that the Board could have properly determined that Richardson had provided psychological services, we do not address whether that deduction was correct.


author: THOMAS, Judge.

text:
    Leotis WILLIAMS v. Tiffany WILLIAMS.
    2081026.
    Court of Civil Appeals of Alabama.
    Dec. 11, 2009.
    Rehearing Denied Feb. 12, 2010.
    Monica Austin-Hateher of Hatcher Law Office, Brighton; and Gloria Brown Collins of Collins & Hunter, LLC, Birmingham, for appellant.
    Derek Brandon Simms of Simms & Associates, Birmingham, for appellee.
   THOMAS, Judge.

In November 2008, Tiffany Williams filed a legal-services-liability action in which she alleged that Leotis Williams had negligently handled two legal matters entrusted to him by Tiffany. Leotis failed to answer or otherwise defend Tiffany’s complaint, and she secured a default judgment against Leotis on February 5, 2009. On March 20, 2009, Leotis filed what he styled as a “Motion to Vacate Judgment (Rule 59(e)[, Ala.R. Civ. P.])” (“the first post-judgment motion”), in which he argued that he had been incapable of defending himself at the “time of trial” because of incapacity, which, according to the affidavit appended to his motion, arose from an accident involving a table saw that resulted in the amputation of two fingers and injury to two other fingers on his right hand. The trial court denied the first post-judgment motion on April 17, 2009. Leotis did not file a timely appeal from the denial of the first postjudgment motion.

On June 4, 2009, Leotis filed what he styled as a “Renewed Motion to Set Aside Default Judgment” (“the second post-judgment motion”), in which he specifically relied on Rule 60(b)(1), Ala. R. Civ. P. In the second postjudgment motion, Leotis again asserted that he had been mentally and physically incapable of answering or defending against Tiffany’s complaint as a result of the accident involving the table saw. In addition, Leotis mentioned in the second postjudgment motion and in the affidavit appended to that motion that he had been on several prescription medications that caused “memory loss and confusion” and that he had become depressed as a result of his accident. Leotis further alleged that he had a meritorious defense to Tiffany’s legal-services-liability action because Tiffany had not cooperated in the prosecution of her cases. Thus, Leotis argued in his second postjudgment motion, he was entitled to relief from the default judgment under Rule 60(b)(1).

After a hearing, the trial court denied Leotis’s second postjudgment motion on June 30, 2009. Leotis filed a notice of appeal on July 31, 2009. We dismiss the appeal.

Neither party has raised the issue of this court’s jurisdiction over this appeal. However, because jurisdictional matters are of such magnitude, this court is permitted to notice a lack of jurisdiction ex mero motu. See Reeves v. State, 882 So.2d 872, 874 (Ala.Civ.App.2003). Our review of the record has convinced us that Leotis’s appeal, which was filed after the entry of the trial court’s June 30, 2009, order denying the second postjudgment motion, is untimely.

Leotis’s first postjudgment motion, which purported to be a Rule 59(e) motion, requested that the trial court set aside its February 5, 2009, default judgment; the proper vehicle for requesting a trial court to set aside a default judgment is a motion filed pursuant to Rule 55(c), Ala. R. Civ. App. Both a Rule 59(e) and a Rule 55(c) motion, however, must be filed within 30 days of the judgment being challenged. See Rule 59(b), Ala. R. Civ. P., and Rule 55(c). Leotis’s first postjudgment motion was filed more than 30 days after the entry of the default judgment. Thus, the first postjudgment motion was not a timely motion under either Rule 59(e) or Rule 55(c).

However, Leotis’s first post-judgment motion can be properly construed as a Rule 60(b) motion for relief from the default judgment. Ex parte King, 776 So.2d 31, 35 (Ala.2000). As noted above, the trial court denied the first postjudgment motion on April 17, 2009, and Leotis, on June 4, 2009, filed a second postjudgment motion, again pursuant to Rule 60(b), “renewing” his request that the default judgment be set aside. It is the effect, or lack thereof, of that motion, that requires us to dismiss Leotis’s appeal.

“Alabama caselaw has placed a significant limitation upon the availability of relief under Rule 60(b) where a movant has previously sought relief under that rule. As stated by the Alabama Supreme Court in Ex parte Keith, 771 So.2d 1018 (Ala.1998), ‘[ajfter a trial court has denied a postjudgment motion pursuant to Rule 60(b), that court does not have jurisdiction to entertain a successive postjudgment motion to “reconsider” or otherwise review its order denying the Rule 60(b) motion.’ 771 So.2d at 1022 (emphasis added). In other words, a paHy who has previously jiled an unsuccessful motion seeking relief under Rule 60(b) may not properly file a second motion in the trial court that, in effect, requests the trial court to revisit its denial of the first motion, such as by reasserting the grounds relied upon in the first motion. See Wadsworth v. Market Ins. Co., 906 So.2d 179, 182 (Ala.Civ.App.2005) (‘Successive Rule 60(b) motions on the same grounds are generally considered motions to reconsider the original ruling and are not authorized by Rule 60(b).’).”

Pinkerton Sec. & Investigations Sens., Inc. v. Chamblee, 934 So.2d 386, 390-91 (Ala.Civ.App.2005) (second emphasis added).

Although Leotis further explained the basis for his incapacity in his second post-judgment motion, which was based on Rule 60(b)(1) and (6), in that motion Leotis sought relief from the February 5, 2009, default judgment for the same reason he had advanced in his first postjudgment motion. Leotis’s second postjudgment motion, which renewed his request to have the trial court set aside the default judgment, was nothing more than a request that the trial court reconsider its ruling on his first postjudgment motion. See Wadsworth v. Markel Ins. Co., 906 So.2d 179 (Ala.Civ.App.2005) (stating that successive Rule 60(b) motions asserting the same grounds as those asserted in a prior Rule 60(b) motion are generally considered to be motions to reconsider the trial court’s ruling on the original Rule 60(b) motion and are not authorized by Rule 60(b)); Roark v. Bell, 716 So.2d 1245, 1247 (Ala.Civ.App.1998) (same). The trial court was without jurisdiction to do so. Ex parte Jordan, 779 So.2d 183, 184 (Ala.2000) (quoting Ex parte Vaughan, 539 So.2d 1060, 1061 (Ala.1989)) (“This Court has held that ‘[a] trial court does not have jurisdiction to entertain a motion to reconsider the denial of a Rule 60(b), [Ala. R. Civ. P.j, motion.’ ”).

Leotis’s second postjudgment motion did not toll the time for him to take an appeal from the denial of his first postjudgment motion. Ex parte Keith, 771 So.2d 1018, 1022 (Ala.1998) (noting that “a successive postjudgment motion does not suspend the running of the time for filing a notice of appeal”). Leotis’s failure to timely appeal from the denial of his first postjudgment motion proves fatal to this appeal. The July 31, 2009, notice of appeal, which was filed more than 42 days after the April 17, 2009, denial of his first postjudgment motion, was untimely, and, therefore, we must dismiss this appeal. See Wadsworth, 906 So.2d at 182 (dismissing an appeal as untimely because of the appellant’s failure to timely appeal from the denial of his first postjudgment motion); Reeves, 882 So.2d at 874 (same); and Moser v. Moser, 839 So.2d 664, 665 (Ala.Civ.App.2002) (same).

We note that, for the first time in his reply brief, Leotis advances the argument that the default judgment was void for lack of proper service; we cannot consider that argument. See Lloyd Noland Hosp. v. Durham, 906 So.2d 157, 173 (Ala.2005) (“It is a well-established principle of appellate review that we will not consider an issue not raised in an appellant’s initial brief, but raised only in the reply brief.”). Leotis also never asserted this ground as a basis for relief in the trial court. His failure to do so further precludes our consideration of it on appeal. See Ex parte Farley, 981 So.2d 392, 397 (Ala.2007) (restating the well-settled principle that an appellate court may not consider an argument raised for the first time on appeal).

APPEAL DISMISSED.

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

      . The trial court entered two default judgments on that date. The first judgment awarded Tiffany $16,911, plus court costs and attorney fees. The amended default judgment awarded Tiffany $29,446, plus court costs.


author: PER CURIAM. THOMPSON, Presiding Judge,

text:
    Ex parte Laura WILSON. (In re Madison County Board of Education v. Laura Wilson).
    2080811.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2009.

      Annary A. Cheatham of Cheatham & Associates, PLLC, Huntsville, for petitioner.
    Cynthia K. Thompson and M. Rebecca Hill of Johnston, Moore & Thompson, Huntsville, for respondent.
   PER CURIAM.

Laura Wilson petitions this court for a writ of mandamus in this case concerning the application of the Teacher Tenure Act, § 16-24-1 et seq., Ala.Code 1975.

In April 2005, the Madison County Board of Education (“the Board”) terminated the employment of Wilson, a tenured teacher employed by the Board. Wilson contested her dismissal pursuant to § 16-24-9, Ala.Code 1975, and a hearing officer was selected to hear her case, pursuant to § 16-24-10(a), Ala.Code 1975. Following a hearing, the hearing officer issued a decision reinstating Wilson’s employment. The Board filed a notice of appeal to this court, and we granted the appeal, pursuant to § 16-24-10(b), Ala.Code 1975. On appeal, this court concluded that the hearing officer had failed to properly apply the Teacher Tenure Act. Madison County Bd. of Educ. v. Wilson, 984 So.2d 1153 (Ala.Civ.App.2006) (“Wilson I ”). Accordingly, we reversed the hearing officer’s decision and “remand[ed] the cause for the parties to conduct another hearing consistent with the provisions of the Teacher Tenure Act.” Id. at 1160. In November 2007, our supreme court affirmed this court’s decision on certiorari review. Ex parte Wilson, 984 So.2d 1161 (Ala.2007) (‘Wilson II”).

A dispute arose between Wilson and the Board regarding whether the hearing officer who had originally conducted Wilson’s hearing in 2005 should conduct Wilson’s hearing on remand. Wilson contended that the original hearing officer should conduct the hearing on remand. The Board, however, contended that a new hearing officer should hold the hearing. Upon receiving the supreme court’s judgment in Wilson II, the original hearing officer contacted Wilson and the Board and recommended dates for a new hearing. However, because the parties could not agree on who should conduct the hearing, no hearing was held. On December 13, 2007, the Board sent a letter to Wilson stating that her dismissal had become “final.” In that letter, the Board cited Wilson’s failure to “participate in the selection process for a new hearing officer in [her] ... case.”

On December 27, 2007, Wilson filed a “notice of direct appeal” with the chief administrative law judge (“the chief ALJ”) of the office of administrative hearings in the office of the Alabama Attorney General. Wilson filed her notice of appeal purportedly under § 16-24-21(a), Ala.Code 1975, which provides: “A teacher who has attained continuing service status and has been denied a hearing before the local board of education as required by Section ... 16-24-9[, which concerns the cancellation of teacher contracts,] ... shall have the right to appeal to the [chief ALJ].... ” By appealing to the chief ALJ, Wilson sought an order directing that her case on remand from Wilson I be heard by the original hearing officer. On March 11, 2008, the chief ALJ dismissed Wilson’s appeal. In that dismissal, the chief ALJ stated that, under § 16-24-21(a), the office of administrative hearings did not have jurisdiction over Wilson’s appeal because Wilson had been granted a hearing before the Board in 2005. See Wilson I, 984 So.2d at 1155. The chief ALJ also stated that, in his opinion, the original hearing officer should hear Wilson’s ease on remand; however, the chief ALJ concluded that he lacked jurisdiction to make that determination.

On March 26, 2008, Wilson filed with this court a “Motion for Clarification of Order.” In that motion, Wilson asked this court to clarify its decision in Wilson I to indicate whether, on remand, the original hearing officer should conduct the hearing or whether a new hearing officer should conduct the hearing. On April 22, 2008, this court, ex mero motu, issued an order placing the appeal in Wilson I on rehearing in order to consider Wilson’s motion. However, on August 29, 2008, this court, with Judge Bryan filing a dissenting opinion, withdrew its order of April 22, 2008. Madison County Bd. of Educ. v. Wilson, 14 So.3d 157 (Ala.Civ.App.2008) (“Wilson III”). Wilson subsequently filed a petition for a writ of certiorari with the supreme court. On January 19, 2009, the supreme court denied the petition without opinion, with Justice Smith filing an opinion concurring specially and Chief Justice Cobb and Justice Murdock filing dissenting opinions. Ex parte Wilson, 14 So.3d 158 (Ala.2009) (“Wilson IV”).

Following Wilson IV, Wilson, still seeking a hearing pursuant to this court’s remand in Wilson I, attempted to have the original hearing officer conduct a hearing. According to both parties, the original hearing officer issued a letter on February 16, 2009, indicating that he would hold a hearing on Wilson’s case on June 17, 2009. The Board contends that it did not receive notice of the February 17, 2009, letter until May 20, 2009, when it received from Wilson a list of anticipated witnesses and exhibits concerning the scheduled hearing. Evidently, the hearing scheduled by the original hearing officer to be held on June 17, 2009, was not held. On June 8, 2009, Wilson petitioned this court for a writ of mandamus directing that the original hearing officer hold Wilson’s hearing and that she be awarded backpay.

“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 Wilson I, this court reversed the original hearing officer’s decision and remanded the case with instructions that another hearing be held. 984 So.2d at 1160. In affirming this court’s judgment, the supreme court stated that “[t]he new hearing shall be conducted pursuant to the provisions of the new [Teacher Tenure] Act.” 984 So.2d at 1171. Wilson argues that the original hearing officer should conduct the hearing on remand. We agree.

The Teacher Tenure Act specifies the procedure for selecting a hearing officer immediately following a teacher’s filing of a contest challenging that teacher’s dismissal. Section 16-24-10(a), Ala.Code 1975, provides, in pertinent part: “If notice of contest is filed pursuant to Section 16-24-9[, which concerns the cancellation of teacher contracts,] the hearing officer shall be selected as provided in subsection (b) of Section 16-24-20.” Section 16-24-20(b), Ala.Code 1975, provides, in pertinent part:

“If a teacher should timely file a contest from a decision as provided in this article, the employing board and the teacher shall, within seven days of such filing, either (1) mutually agree upon a person to hear the teacher’s contest, or (2) submit a joint request for a panel of arbitrators to the Federal Mediation and Conciliation Services’ Office of Arbitration Services (FMCS).”

Section 16-24-10(b) addresses the procedure involved when this court reverses a hearing officer’s decision: “The decision of the hearing officer shall be affirmed on appeal unless the Court of Civil Appeals finds the decision arbitrary and capricious, in which case the court may order that the parties conduct another hearing consistent with the procedures of this article.” Thus, when a hearing officer’s decision is reversed and the case is remanded for “another hearing,” the Teacher Tenure Act does not explicitly state whether that hearing should be held before the original hearing officer or before a new hearing officer. We now construe § 16-24-10(b) as directing remand to the original hearing officer when remand is necessary. “The cardinal rule in statutory construction is to give effect to the legislative intent as clearly expressed in the statute or as may be inferred from the language used as well as from the reason for the act.” Ex parte Berryhill, 801 So.2d 7, 11 (Ala.2001) (emphasis omitted). The legislature, in amending the Teacher Tenure Act in 2004, intended “to streamline the contest and appeal processes for teachers.” Title to Act No. 2004-566, Ala. Acts 2004. Remanding the case for a new hearing before the original hearing officer is consistent with this intention and would be judicially efficient, whereas holding a hearing before a new hearing officer unfamiliar with the case would undermine this intention.

If we were to construe the Teacher Tenure Act as requiring the selection of a new hearing officer in all remanded cases, that construction would seemingly require new evidentiary hearings to be held. Such a procedure would preclude the original hearing officer, in applicable cases, from merely applying the correct law to the facts with which that hearing officer is familiar. The more efficient and reasonable course is to simply remand the case to the original hearing officer. Moreover, remanding the case to the original hearing officer reflects the procedure typically used when a circuit court’s judgment is reversed and the case is remanded to that circuit court. In those situations, the trial judge who originally presided over the case typically presides over the case on remand, as a matter of course.

This court’s decision in Bishop State Community College v. Williams, 4 So.3d 1152 (Ala.Civ.App.2008), supports our decision in this case. Bishop State involved an appeal of a hearing officer’s decision under the Fair Dismissal Act, § 86-26-100 et seq., Ala.Code 1975. Section 36-26-104(b), Ala.Code 1975, governs appeals to this court under the Fair Dismissal Act. That section provides, in pertinent part: “The decision of the hearing officer shall be affirmed on appeal unless the Court of Civil Appeals finds the decision arbitrary and capricious, in which case the court may order that the parties conduct another hearing consistent with the procedures of this article.” This language is the same as the language found in § 16—24—10(b) governing the present case. In Bishop State, this court “reversefd] the hearing officer’s decision and remand[ed] the cause to the original hearing officer.” 4 So.3d at 1162 (emphasis added).

Although the original hearing officer in this case had the duty to hold a hearing on remand, a writ of mandamus directing the original hearing officer to hold the hearing would not be appropriate absent a showing that he refused to perform this duty. Ex parte Empire Fire & Marine, 720 So.2d at 894. As noted, the original hearing officer scheduled a hearing for June 17, 2009. On June 8, 2009, before the hearing was scheduled to be held, Wilson filed her petition for a writ of mandamus in this court. The materials before this court do not indicate, and Wilson does not assert, that the original hearing officer has refused to conduct a hearing. Accordingly, at this point in the proceedings and based on the materials before us, we cannot issue a writ of mandamus compelling the original hearing officer to conduct a hearing in Wilson’s case. Id. Therefore, we deny the petition for a writ of mandamus.

PETITION DENIED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

THOMPSON, P.J., concurs in the result only, with writing.

THOMPSON, Presiding Judge,

concurring in the result only.

I conclude that Laura Wilson’s petition for a writ of mandamus was not timely filed. The petition for a writ of mandamus seeks essentially the same relief Wilson sought in her March 26, 2008, “motion for clarification,” which this court ultimately denied by order dated September 4, 2008. See Madison County Bd. of Educ. v. Wilson, 14 So.3d 157 (Ala.Civ.App.2008) (“Wilson III ”). Our supreme court denied Wilson’s petition for writ of certiorari with regard to this court’s ruling in Wilson III. Ex parte Wilson, 14 So.3d 158 (Ala.2009) (“Wilson IV”).

When, after remand, the dispute arose between the parties concerning whether a new hearing officer should be appointed, Wilson did not take an adversarial litigation position in opposition to the position taken by the Madison County Board of Education (“the Board”). Rather, Wilson filed a “motion for clarification” in this court, seeking advice from the appellate courts as to how to proceed. In this petition, Wilson seeks to compel the Board to take part in a hearing before the original hearing officer; she could have sought this relief in 2007 by filing a timely petition for a writ of mandamus shortly after the release of this court’s opinion in Madison County Board of Education v. Wilson, 984 So.2d 1153 (Ala.Civ.App.2006), and our supreme court’s opinion in Ex parte Wilson, 984 So.2d 1161 (Ala.2007). As Justice Smith stated in her special concurrence in Wilson IV, supra:

“Chief Justice Cobb, in her dissenting opinion, asserts that the petitioner, Laura Wilson, ‘has sought redress in every reasonable manner in seeking an answer to the question whether a new hearing officer is required on remand.’ 14 So.3d at 160. However, instead of filing a ‘motion for clarification,’ Wilson could have sought mandamus relief directing that a hearing be commenced before the original hearing officer after the Madison County Board of Education refused to proceed if the matter was not heard before a new hearing officer.”

14 So.3d at 159 (Smith, J., concurring specially).

I conclude that Wilson did not file this petition for a writ of mandamus within a reasonable time and, therefore, that she failed to properly invoke the jurisdiction of this court. Ex parte Troutman Sanders, LLP, 866 So.2d 547, 550 (Ala.2003). Accordingly, for that reason, I concur in the result.

      . Section 16 — 24— 10(b) provides, in part, that "[r]eview [of the decision of the hearing officer] by the Court of Civil Appeals pursuant to this article is not a matter of right, but of judicial discretion, and an appeal may be granted only when the court determines there are special and important reasons for granting the appeal.”

      . The Board attributes the delay in receiving notice of the February 17, 2009, letter to that letter’s listing an incorrect address for the Board’s attorney.


text:
    BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY v. Gloria GLENN.
    2080870.
    Court of Civil Appeals of Alabama.
    April 30, 2010.

      Edgar P. Walsh of The Atchison Firm, P.C., Mobile, for appellant.
    Gregory B. Stein of Stein, Brewster & Pilcher, L.L.C., Mobile, for appellee.
   PITTMAN, Judge.

This discretionary appeal from an arbitration decision entered by a hearing officer in accordance with Ala.Code 1975, § 16-24-10(a), concerns the proposed non-renewal (termed a “partial cancellation”) by the Board of School Commissioners of the Mobile County school district (“the Board”) of the central-office employment of Gloria Glenn, a tenured teacher (“the teacher”), pursuant to the Board’s system-wide reduction in force (“RIF”), and its corresponding efforts to retransfer her to a teaching position.

The record reveals that the teacher was first employed by the Board as an elementary-school teacher in 1980. Pursuant to Ala.Code 1975, § 16-24-2(a), the teacher attained continuing-service status, a status colloquially known as “tenure,” as a teacher by virtue of her having been reemployed by the Board for three consecutive years in that role. After a six-year stint working for the Board as a “Title I facilitator” and a reading-intervention specialist, the teacher was employed by the Board on June 19, 2006, as a “school improvement specialist,” a position that required her to be responsible for ensuring that particular schools are properly following federal guidelines applicable to educational subsidies received by the Board from the United States government. She was employed by the Board in that position during two academic years, 2006-07 and 2007-08.

In Ex parte Oden, 495 So.2d 664, 665 (Ala.1986), the Alabama Supreme Court made the following pertinent observations regarding tenure of teachers and other supervisory educational personnel:

“A teacher who meets the requirements of [Ala.] Code 1975, § 16-24-2, attains continuing service status, which does not inhere in the particular teaching position the teacher holds at the time, but in the teacher. The teacher retains continuing service status through transfers and promotions.
“A teacher who attains continuing service status as an instructor, § 16-24-2(a), retains that status upon promotion to ... supervisor, § 16-24-2(b). To earn continuing service status as a ... supervisor, an instructor must continue under contract in the new position for three years.... ‘[Supervisor’ tenure is in effect a second-level tenure.”

The record reveals that in 2007 the Board determined that it would not be able to comply with a statutory requirement that it “develop a plan to establish and maintain a minimum reserve fund equal to one month’s operating expenses” (see Ala.Code 1975, § 16-13A-9(a)). In order for the Board to reduce its total outlays (of which 83 percent had consisted of personnel costs) to comply with that budgetary standard, the Board adopted its RIF, under which a number of teaching and administrative positions were eliminated.

In early May 2008, two letters from the Board were hand delivered to the teacher. One of those letters, dated May 9, 2008, informed her that the Board’s superintendent intended to recommend “partial cancellation” of her employment in the Board’s central administration, citing, among other things, a “[justifiable decrease in the number of certified support positions in Central Administration pursuant to implementation of [the RIF] by the Board ... because of budgetary considerations.” Although that letter used the term “partial cancellation,” the letter further noted that the Board’s action was “not a performance-based decision” and that it was made “because of budgetary consideration for the 2008-2009 school year which influences your current position” (emphasis added). The teacher was informed that she would be afforded a conference with the Board regarding that recommendation by making a request for such a conference within 15 days of receiving the letter. The second letter, dated May 6, 2008, informed the teacher that the Board, on May 5, 2008, had approved the superintendent’s recommendation to transfer the teacher from her current position in central administration based upon a “[^Justifiable decrease in the number of certified support positions ... pursuant to implementation of reduction in force policy by [the Board] because of budgetary considerations.” That letter informed the teacher that she would be afforded a hearing regarding the proposed transfer if she requested one within 15 days of receipt of the letter.

In separate filings, the teacher requested a hearing before the Board on her “mandatory transfer from [her] job as School Improvement Specialist” and on the “partial cancellation of employment.” The Board held a hearing on June 2, 2008, after which the teacher was notified on June 9, 2008, that the Board had upheld the superintendent’s recommendation that the teacher’s employment contract be partially canceled (and, thus, that the teacher’s transfer be upheld). The teacher was also notified that she could seek review of that decision by filing a written notice of appeal to a hearing officer. The teacher timely sought such review. After an evi-dentiary hearing, at which witnesses for the Board and the teacher testified and exhibits were admitted into evidence, the hearing officer issued a decision determining (a) that the Board had violated Ala. Code 1975, § 16-24-12, which pertains to automatic renewal of a teacher’s employment for an ensuing school year “at the same salary” absent notice to the contrary before the end of the preceding school year; and (b) that the teacher had attained secondary tenure as a school improvement specialist on the day after the second anniversary of when she was hired as a school improvement specialist. Based upon those conclusions, the hearing officer purported to “den[y]” the proposed partial cancellation of the teacher’s employment contract.

The Board sought review of the hearing officer’s decision pursuant to Ala.Code 1975, § 16-24-10(b). After receiving submissions from the parties, we determined that the Board’s appeal presented “special and important reasons” that warranted appellate review under that statute, and we directed the parties to submit briefs in advance of the submission of the case for decision. Upon review of the full record and applicable AJabama law, we conclude that the hearing officer erred, and we reverse that decision and remand the cause with instructions.

As we have noted, at the time the teacher was employed as a school improvement specialist on June 19, 2006, she had earned tenure as a teacher. Under previous Alabama cases, the teacher’s “promotion” to the specialist position, which would appear to fall within the expansive construction of the term “supervisor” espoused by the Alabama Supreme Court in Ex parte Oden, 495 So.2d at 666-67, arguably started the three-year employment period after which the teacher would properly have been deemed “tenured” as a “supervisor,” but that promotion did not affect her rights to a hearing with respect to a transfer from her supervisory position with the Board’s central administration back to a teaching position in one of the Board’s schools. See Ala.Code 1975, § 16-24-5 et seq. As we stated in Smith v. Alabama State Tenure Commission, 430 So.2d 877, 879-80 (Ala.Civ.App.1982), aff'd, 430 So.2d 880 (Ala.1983):

“This court agrees that the Tenure Act grants to teachers a property interest which, when perfected, is entitled to constitutional due process protection. However, the right to minimum due process should not limit additional rights granted by the tenure law which may exceed minimum due process. We believe §§ 16-24-5, -6, -7 provide hearing rights to any ‘teacher’ who has attained continuing service status under § 16— 24-2(a). Having once attained continuing service status as a ‘teacher,’ all of the hearing rights as to transfer provided by the Tenure Act become available. § 16-24-5. Section 16-24-2(b) states that promotion to principal or supervisor ‘shall in no way jeopardize the continuing service status of the teacher as an instructor’. It therefore appears to follow that an instructor (teacher) with continuing service status, promoted to principal or supervisor, is entitled to a hearing when given notice of transfer or demotion. The matters to be heard are set out in § 16-24-5. Included therein would be the issue of whether the teacher had attained tenure as a principal or supervisor; i.e., was the transfer with loss of status?
“We consider, therefore, that Smith having tenure as a ‘teacher’ (instructor), though without property rights as a supervisor and thus no due process rights requiring a hearing upon his demotion, nevertheless had statutory rights to a hearing by the Board of Education upon notice of transfer and demotion.”

Thus, in this case, the Board was not entitled under the Teacher Tenure Act to simply terminate the teacher’s current employment and reassign the teacher unilaterally to a teaching position; rather, it was required to afford the teacher the right to a pre-transfer hearing before doing so. We note, however, that although the teacher’s hearing rights are properly referable to the provisions of the Teacher Tenure Act pertaining to transfers, there is also authority for the proposition that a prospective change in the employment conditions of a person entitled to tenure as either a teacher or a supervisor under § 16-24-2 amounts to a “partial cancellation” of that person’s employment contract. See Mason v. Huntsville City Bd. of Educ., 591 So.2d 860, 862 (Ala.Civ.App.1991) (in which an administrator’s decision to direct a tenured principal to work an extra month as a summer-school coordinator was deemed reviewable as either a transfer or a partial cancellation of a former employment contract). Further, there is also Alabama authority for the proposition that even a nonrenewal of a nontenured educator’s employment may entitle that educator to due-process rights if the nonrenewal has a stigmatizing effect or injures the educator’s prospects for future employment. Foster v. Blount County Bd. of Educ., 340 So.2d 751, 752 (Ala.1976).

It appears that, based upon the existence of those parallel lines of legal authority and the prospect that not affording the teacher a full hearing on the termination of her central-office employment pursuant to the RIF would be deemed a denial of due process, the Board wished to accomplish its RIF as it applied to the teacher without denying any rights the teacher might have had to a hearing; therefore, it proceeded in parallel fashion to treat the RIF as it applied to the teacher as both a transfer and a partial cancellation. As the hearing officer noted in his order, however, the Board need not have done so: the proposed “partial cancellation” was expressly stated to be effective for the 2008-09 school year, indicating a planned nonrenewal of the teacher’s school-improvement-specialist employment rather than a proposed mid-year termination thereof. That said, we note that, under Alabama law, “proceedings of school boards are usually kept by those not versed in the law and are more or less informal in character, and should not be given a narrow and technical construction”; further, “the records and proceedings of such boards ... should be construed in such manner as to give effect to the manifest intention of the members.” Holcombe v. County Bd. of Educ. of Marion County, 242 Ala. 20, 23, 4 So.2d 503, 506 (1941).

Nonetheless, that the Board elected (although erroneously) to treat the RIF as it applied to the teacher as a “partial cancellation” was, to the hearing officer, crucial: he opined that “[i]t makes little sense to provide tenured rights to a non-tenured employee and allow that employee to contest a contract cancellation when tenure for the position did not even exist.” To the contrary, the Board’s effort to effectuate the RIF by moving the teacher from the central office back to a classroom position was unquestionably an action that triggered the right to a pre-transfer hearing upon request under the legal principles we have set forth.

That the Board elected to use two different forms of notice to inform the teacher of her rights under the Teacher Tenure Act to a hearing (and, subsequently, of her rights to administrative review by the hearing officer) is in no way indicative of an intent to confer a second level of tenure upon the teacher, and the hearing officer, by effectively conferring such tenure by applying a virtual estoppel doctrine against the Board, acted outside the scope of the Teacher Tenure Act. See Madison County Bd. of Educ. v. Wilson, 984 So.2d 1153, 1160 (Ala.Civ.App.2006) (hearing officer in teacher-tenure case may not deviate from existing Alabama law), aff'd, 984 So.2d 1161 (Ala.2007). Rather, because the teacher was statutorily entitled to a hearing only as to the proposed transfer, and not the nonrenewal, the hearing officer’s proper scope of review under the Teacher Tenure Act was to determine “whether the evidence was insufficient for the board to take the action, whether such action was taken for political or personal reasons, or whether such action was arbitrarily unjust.” Ala.Code 1975, § 16-24-7. The hearing officer concluded that the Board had adduced substantial evidence demonstrating that its RIF as it applied to the teacher was neither politically motivated nor arbitrary, and there is no real dispute that the Board had valid reasons for seeking to transfer the teacher from her central-office position.

We likewise conclude that the hearing officer erroneously concluded that the Board had reemployed the teacher as a school improvement specialist by purportedly failing to provide “notice in writing” to the contrary in accordance with Ala. Code 1975, § 16-24-12. Rather, the record indicates that the Board clearly and unambiguously indicated its intent, well before the end of the 2007-08 school year, not to retain the teacher in her current position in the central office. The teacher was afforded a full and fair opportunity to contest the appropriateness of that decision before the Board, but the Board did not alter its intent. Although the teacher’s tenured status as a teacher precluded the Board from fully terminating her employment without cause under -the Teacher Tenure Act, the Board did adequately disclose that the teacher would not be retained in her administrative position for the 2008-09 school year in a sufficient manner to comply with § 16-24-12. Under the Teacher Tenure Act, the giving of notice to an education employee that is “adequate to serve its intended purpose,” ie., to convey an intent not to rehire a probationary employee for the succeeding year, will be given effect notwithstanding a contention that the pertinent school board should be estopped to deny reemployment. Hembree v. Jefferson County Bd. of Educ., 337 So.2d 9,11 (Ala.Civ.App.1976).

In summary, in effectuating notice of its RIF as it applied to the teacher for the 2008-09 school year before the end of the 2007-08 school year, the Board substantially complied with the provisions of the Teacher Tenure Act that applied to the teacher’s particular employment situation, ie., having attained tenured status as a teacher but not as a supervisor. The notices sent to the teacher clearly afforded her the precise transfer-review remedies permitted under the Teacher Tenure Act to those teachers who have yet to attain second-level tenure, although the notices did not perfectly observe the distinction between “partial cancellation” and nonre-newal. We conclude that the hearing officer erroneously adopted a “narrow and technical construction” of the Board’s notices in concluding that affording the teacher a right to a review hearing in these circumstances amounted to a conferring of second-level tenure by estoppel. The decision of the hearing officer is therefore reversed, and the cause is remanded for the entry of an order allowing the Board to effectuate forthwith the transfer of the teacher from her central-office position.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and THOMAS, J., concur.

BRYAN and MOORE, JJ., concur in the result, without writings.


text:
    A.D.S. v. S.J.L.
    2081088.
    Court of Civil Appeals of Alabama.
    Aug. 13, 2010.
    Rehearing Denied Feb. 25, 2011.
    Certiorari Denied April 8, 2011 Alabama Supreme Court 1100676.

      Gary L. Jester, Florence, for appellant.
    Terrinell Lyons and Johnnie L. Franks of The Shoals Law Group, LLC, Florence; and James E. Hall II, Florence, for appel-lee.
   PITTMAN, Judge.

This appeal arises out of paternity and adoption proceedings before the Lauder-dale Juvenile Court involving R.L. (“the child”), a child born to S.J.L. (“the mother”) out of wedlock. The primary question presented is whether the juvenile court correctly determined that A.D.S., a man who was shown to be the biological father of the child via paternity testing initiated well after the birth of the child, is a “putative father” under now repealed provisions of the Alabama Adoption Code, § 26-10A-1 et seq., Ala.Code 1975 (“the Adoption Code”), applicable in this case so as to have had only a conditional right to object to the proposed adoption of the child by A.L.P. and D.J.P. (“the intervenors”) upon compliance with pertinent provisions of the Putative Father Registry Act, Ala.Code 1975, § 26-10C-1 et seq. (“the PFRA”), or whether A.D.S. is instead a “presumed father” with an unconditional right under the Adoption Code to so object.

The record reveals that the child was born on March 28, 2008. Three days after his birth, he began residing in the home of the intervenors, who are the half brother of the mother and his wife. On April 15, 2008, the intervenors filed a petition in the Lauderdale Probate Court seeking to adopt the child. In response to the petition, the probate court issued an interlocutory order granting temporary custody of the child to the intervenors, and that court directed that notice of a final hearing to be held on April 6, 2009, just over one year after the child’s birth, be given by publication to the child’s “unknown father.”

In June 2008, A.D.S., claiming to be the child’s father, filed an objection to the intervenors’ adoption petition in the probate court. One month later, A.D.S. sued the mother in the juvenile court, seeking a declaration that he was the father of the child and that he should have physical and legal custody of the child. Upon the completion of genetic testing and the publication of results indicating that A.D.S. is the child’s biological father, A.D.S. moved the juvenile court for an order transferring the adoption proceedings to the juvenile court; the mother moved to dismiss the father’s paternity action on the basis that he had not complied with the PFRA; and the intervenors sought leave to appear as parties in the paternity action and filed a complaint alleging that A.D.S. had not only failed to comply with the PFRA but also had given irrevocable implied consent to the child’s adoption by virtue of having abandoned the child by failing to provide the mother monetary or emotional support for six months preceding the child’s birth (see § 26-10A-9(a)(l), Ala.Code 1975). In March 2009, the probate court transferred the adoption action to the juvenile court. After an ore tenus proceeding at which the parties and various witnesses testified, the juvenile court entered a judgment declaring A.D.S. to be a putative father, not a presumed father, and stating that his failure to timely register as a putative father barred his objection to the proposed adoption; the paternity action was dismissed, and the adoption action was remanded to the probate court.

“ ‘The ore tenus rule provides that a trial court’s findings of fact based on oral testimony “have the effect of a jury’s verdict,” and that “[a] judgment, grounded on such findings, is accorded, on appeal, a presumption of correctness which will not be disturbed unless plainly erroneous or manifestly unjust.” Noland Co. v. Southern Dev. Co., 445 So.2d 266, 268 (Ala.1984). “The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.” Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986).’
“Ex parte Anonymous, 808 So.2d 542, 546 (Ala.2001). ‘The trial court’s judgment in cases where the evidence is heard ore tenus will be affirmed, if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.’ River Conservancy Co., L.L.C. v. Gulf States Paper Corp., 837 So.2d 801, 806 (Ala.2002). Accord Clark v. Albertville Nursing Home, Inc., 545 So.2d 9, 13 (Ala.1989). ‘In ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of the witnesses, and it should accept only that testimony which it considers worthy of belief.’ Clemons v. Clemons, 627 So.2d 431, 434 (Ala.Civ.App.1993).”

Ex parte R.E.C., 899 So.2d 272, 279 (Ala. 2004).

The record, viewed in a light most favorable to the juvenile court’s judgment, reflects that the mother, during her minority, engaged in sexual intercourse with A.D.S. on one occasion during the summer of 2007; at that time, the mother was also involved in relationships of a sexual nature with two other males. On August 11, 2007, the mother discovered that she was pregnant through the use of an over-the-counter pregnancy test; that evening, A.D.S. was sent a telephone text message informing him of the mother’s pregnancy. On the following night, the mother met with A.D.S. at a public park and informed A.D.S. that she was scared about the pregnancy and opined that she believed the child was his, after which the two discussed what to do about the pregnancy; the mother testified that A.D.S. had offered to obtain funds to pay for an abortion, whereas A.D.S. testified that he had stated that he would “be supportive” of whatever the mother’s decision was. One week later, when the mother consulted an adult for advice, A.D.S. asked the mother to inquire of that adult where an abortion could be performed.

However, in September 2007, after the mother had consulted her own mother, she informed A.D.S. that she was no longer planning to have an abortion, whereupon A.D.S. replied that he “was not the only person involved in this” and stated that he believed that he and the mother should not talk anymore; A.D.S. and the mother did not communicate again for several months. When the mother was six months pregnant, she again contacted A.D.S. to inform him that she was planning to execute “papers” to allow the unborn child to be adopted, and she asked A.D.S. to also sign adoption “papers.” A.D.S. again replied that “he wasn’t the only person involved,” asked the mother that he be left alone, and subsequently changed his cellular-telephone number.

Immediately upon the child’s birth on March 28, 2008, the two other males with whom the mother had had sexual relations around the time of the child’s conception filed separate actions in the juvenile court in which each sought an adjudication as to the child’s paternity. However, both actions were voluntarily dismissed on May 22, 2008, upon the plaintiffs’ having received information that genetic-testing results had excluded them as potential fathers of the child. As we have discussed, the child, upon leaving the hospital after birth, went to live with the intervenors, and the intervenors filed an adoption petition in the probate court on April 15, 2008. During the mother’s pregnancy and the 30-day period after the child’s birth, A.D.S. filed nothing with the state Putative Father Registry indicating any intent to claim paternity of the child at issue, although A.D.S.’s father and the mother’s half brother did have a meeting on April 24, 2008, during which A.D.S.’s father stated that A.D.S. had professed to have believed that the child was his “from the very beginning” but that he also believed that the proposed adoption was in the child’s best interests. On May 30, 2008, A.D.S., in the presence of the mother, apparently informed the intervenors that he believed himself to be the child’s father and requested that he be allowed to visit the child and to obtain paternity testing in exchange for not contesting the adoption; however, after A.D.S. had visited with the child five times during June 2008 in the intervenors’ home, the mother’s half brother discovered that A.D.S. did plan to contest the adoption, and visitation was broken off. At no time did the child visit with A.D.S. in his home.

As we noted in J.L.P. v. L.A.M., 41 So.3d 770, 771 n. 1 (Ala.Civ.App.2008), the provisions of the Adoption Code in effect at the time that the intervenors initiated the adoption proceedings in this case “[did] not explicitly require consent of a ‘father’ to a proposed adoption except insofar as a ‘father’ is the ‘presumed father’ or the ‘putative father’ of the child to be adopted.” We further discussed the crucial distinction between the two terms in this context at some length:

“The terms ‘presumed father’ and ‘putative father’ mean different things under the Adoption Code: a ‘presumed father’ is ‘ [a] ny male person as defined in the Alabama Uniform Parentage Act,’ i.e., Ala.Code 1975, § 26-17-1 et seq. (‘the AUPA’), whereas a ‘putative father’ is ‘[t]he alleged or reputed father.’ Compare Ala.Code 1975, § 26-10A-2(ll), with Ala.Code 1975, § 26-10A-2(12). There is a further significant difference between the two classifications. Under the Adoption Code, a ‘presumed father’ of a child who has never married or attempted to marry that child’s mother is afforded an unqualified, right to object to a proposed adoption of that child, regardless of the child’s actual paternity, if ‘[h]e received the adoptee into his home and openly held out the adoptee as his own child.’ Ala.Code 1975, § 26-10A-7(a)(3)d.
“In contrast, a ‘putative father’ who is made known to the court considering the adoption is merely given the right to object to an adoption ‘provided he complies with Section 26-10C-1,’ i.e., the [PFRA]. Ala.Code 1975, § 26-10A-7(a)(5). That language reflects that, since 2002, a required consent is deemed given by implication by a failure to comply with [the PFRA]; such consent so implied ‘may not be withdrawn by any person.’ Ala.Code 1975, § 26-10A-9(a)(5) and (b). In turn, § 26-10C-l(a) provides for a central putative-father registry in which are to be recorded the names of, and other information concerning, any person filing a notice of intent to claim paternity of a child. The penalty for failing to file such a notice of intent is, under the [PFRA], severe:
“ ‘Any person who claims to be the natural father of a child and fails to file his notice of intent to claim paternity pursuant to [the PFRA] prior to or within 30 days of the birth of a child born out of wedlock[] shall be deemed to have given an irrevocable implied consent in any adoption proceeding.
“ ‘This subsection shall be the exclusive procedure available for any person who claims to be the natural father of a child born out of wedlock on or after January 1, 1997, to entitle that person to notice of and the opportunity to contest any adoption proceeding filed and pending on or after January 1,1997.’
“Ala.Code 1975, § 26-10C-l(i).”

J.L.P., 41 So.3d at 771.

This appeal concerns whether A.D.S. “received the adoptee into his home and openly held out the adoptee as his own child” as that phrase is used in Ala. Code 1975, § 26-10A-7(a)(3)d., a portion of the Adoption Code. The language of that provision closely parallels that formerly used in Ala.Code 1975, § 26-17-5, a portion of the Uniform Parentage Act (“UPA”) that dealt with who was a “presumed father” for purposes of determining parentage under Alabama law. Although the Adoption Code uses the conjunctive “and” to link together the reeeption-into-the-home and openly-holding-out elements of presumed paternity, the UPA linked those terms with a disjunctive “or,” indicating either would suffice to establish a presumption of paternity. A.D.S., among other arguments, seizes upon this distinction to claim that he should be deemed to be a “presumed father” in this case based solely upon an “openly-holding-out” rationale even though, he claims, the actions of the intervenors and the juvenile court prevented him from receiving the child into his home. However, the validity of that argument assumes that the evidence adduced at trial would support only one proper conclusion: that A.D.S. openly held out the child as his own child at the legally pertinent time so as to qualify for the UPA’s paternity presumption.

Under the Adoption Code, a man who has never been married to the mother of his biological child and who has not complied with the PFRA must already have “received the [child] into his home and openly held out the [child] as his own child” in order to wield veto power over a proposed adoption of the child by virtue of being a “presumed father.” Ala.Code 1975, § 26-10A-7(a)(3)d. However, the evidence presented to the juvenile court indicates that, at the time that the adoption proceedings were initiated by the in-tervenors in the probate court, A.D.S. had done nothing to indicate that the child was his child — he had provided no material support or housing to the mother during the pregnancy, he had announced to no one in the community that the mother’s fetus would be his child, and he took no steps to initiate a paternity action before the child’s birth. Instead, the juvenile court could properly have concluded that, during the pregnancy and the immediate aftermath of the child’s birth, A.D.S. had been content to rely upon the belief that one of two other men who had had more sustained sexual access to the mother was the child’s father. Thus, at the time that the matter of the child originally came before the probate court in the adoption action, A.D.S. had in no way acknowledged his potential paternity in such an overt manner that it could reasonably have been concluded that A.D.S. had openly held out the child as his own child. Although A.D.S. did assert to others in the community his claim of parentage, and although he did file a paternity action after the adoption proceedings were already underway, the Adoption Code in no way permits such nunc pro tunc actions to suffice as means to achieve “presumed father” status.

J.L.P., in which the biological father (whom we held to be a presumed father) had initiated a paternity action as to the pertinent child one month after that child’s birth and had prosecuted that action to a successful conclusion, is distinguishable; the adoption proceedings were commenced in that case several years after the biological father’s paternity had been adjudicated and he had been awarded and had exercised visitation with the child. Similarly, in M.M. v. D.P., 10 So.3d 605 (Ala.Civ.App.2008), we concluded that the biological father was a presumed father under the Adoption Code because the evidence in that case indicated that he had been awarded (and had exercised) visitation rights with the pertinent child, including at the father’s home, and had complied with an order compelling him to pay child support. In both cases, the pertinent adoption proceedings were undertaken well after the biological fathers of the children at issue had come forward and had been judicially determined to be the children’s fathers and had consistently acted in a manner fully consonant with an intent to play a parental role in the lives of the children.

We derive further support for our holding from analogous authority from New Mexico, whose adoption statutes permit a man to be deemed an “acknowledged father” of a child under six months of age, so as to confer upon him the power to veto a proposed adoption of that child, when that man has “openly held out the adoptee as his own child by establishing a custodial, personal or financial relationship with the adoptee” by, among other things, having “initiated an action to establish paternity.” See N.M. Stat. § 32A-5-17A.(5) & § 32A-5-3F.(4)(a)(1). In Helen G. v. Mark J.H., 143 N.M. 246, 175 P.3d 914 (2007), the New Mexico Supreme Court rejected the proposition that a man who had failed to file with that state’s Putative Father Registry by the applicable deadline could nonetheless properly claim veto power over an adoption via attaining “acknowledged father” status by filing a paternity action after an adoption petition had been filed. In concluding that “a biological father must take action to become an acknowledged father before the adoption petition is filed,” the New Mexico court reasoned that “[i]t defies logic that a father would be able to bypass that time-sensitive [registration] requirement, only to gain acknowledged father status months later by doing essentially the same thing, filing a paternity suit.” 143 N.M. at 253,175 P.3d at 921.

Even were we to conclude that the evidence before the juvenile court compelled a conclusion that A.D.S. held out the child as his own, which might suffice to warrant a paternity presumption under the UPA, we are nonetheless confronted with the undisputed fact that A.D.S. has never received the child into his home, which is a separate and independent requirement for a paternal presumption to arise under the Adoption Code so as to permit A.D.S. to exercise veto power over the adoption. As the California Supreme Court has noted, such a requirement entails “physically bring[ing] the child into his home,” for a man cannot “constructively receive a child into his home.” In re Adoption of Michael K, 10 Cal.4th 1043, 1051, 48 Cal.Rptr.2d 445, 449, 898 P.2d 891, 895 (1995). Although there was evidence indicating that living accommodations in A.D.S.’s home for the child have been prepared, there is no question that the child has not visited that home even once, before or after the filing of the adoption petition by the intervenors. Although we acknowledge A.D.S.’s argument that he has been prevented from bringing the child into his home by the mother, the intervenors, and/or the probate and juvenile courts, we may not properly read such an exception into the Adoption Code.

We thus conclude that the juvenile court correctly determined A.D.S. to be a putative father, rather than a presumed father, under the Alabama Adoption Code based upon the facts of this case. Although A.D.S. contends that classifying him as a putative father violates constitutional principles of due process, we noted in M.V.S. v. V.M.D., 776 So.2d 142, 149 (Ala.Civ.App.1999), that “due process for unwed fathers requires that state law provide an adequate opportunity for them to claim paternity and to take responsibility for their children in a timely manner,” and we added that “limits on procedural protection for a putative father are necessary from the perspective of the child, who needs a stable start in life and needs stability early.” The PFRA and the Adoption Code, taken together, afford males claiming the be the fathers of children out of wedlock, as A.D.S. has claimed to be the father of the child at issue in this case, a clear right to notice and rights to give or withhold consent to a proposed adoption upon compliance with those statutes. Without having shouldered those relatively light burdens during the mother’s pregnancy or the 30-day period following the child’s birth so as to ensure his substantive parental rights, A.D.S. is in no position to claim that his subsequent objections to the proposed adoption and professions of readiness to be a parent are anything more than mere appeals to biological affinity. Stated another way, A.D.S.’s due-process attack on the juvenile court’s judgment must fail because he failed to “establish[] a substantial relationship with the child to merit constitutional protection.” M.V.S., 776 So.2d at 146.

Based upon the foregoing facts and authorities, the juvenile court’s judgment is due to be affirmed.

AFFIRMED.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur in the result, without writings.

      . We thus do not reach the merits of the intervenors' alternative argument in support of affirmance: that A.D.S., based upon the evidence adduced at trial, gave implied consent to the adoption via abandonment of the adoptee by virtue of his pre-birth conduct towards the mother. See generally Ala.Code 1975, § 26-10A-9(a)(l) (specifying that abandonment includes "the failure of the father, with reasonable knowledge of the pregnancy, to offer financial and/or emotional support for a period of six months prior to the birth”).


author: THOMAS, Judge. MOORE, Judge,

text:
    Milton MITCHELL v. Leviene S. CURRY.
    2090665.
    Court of Civil Appeals of Alabama.
    Sept. 10, 2010.
    Rehearing Application Overruled Jan. 7, 2011.
    Michael A. Wing, Mobile, for appellant.
    Barre C. Dumas, Mobile, for appellee.
   THOMAS, Judge.

Milton Mitchell appeals from the Mobile Circuit Court’s grant of a postjudgment motion altering its judgment by denying Mitchell’s claim upon redemption for rents collected by Leviene S. Curry on a parcel of property that Curry had possessed by way of a tax deed. We reverse and remand.

Facts and Procedural History

In 2004, a parcel of property containing a house (“the property”) that was owned by Mitchell was sold to the state for delinquent taxes. Curry purchased the property from the state. The state subsequently issued Curry a tax deed for the property in July 2007.

In June 2008, Mitchell filed a complaint in the Mobile Circuit Court to redeem the property. In his complaint, Mitchell claimed that he did not receive proper notice of the tax sale, pursuant to § 40-10-133, Ala.Code 1975, and that he had deposited the necessary funds in the circuit court to redeem the property. Mitchell later amended his complaint to add a claim for the rents that Curry had collected while he was in possession of the property. Curry answered Mitchell’s complaint, denying Mitchell’s claim that he had not received proper notice of the tax sale and claiming that Mitchell had not paid a sufficient sum of money into the circuit court to cover the improvements Curry had allegedly made to the property.

In November 2009, Mitchell moved the circuit court for a summary judgment. In his motion and brief in support of his motion for a summary judgment, Mitchell argued that he did not receive notice of the tax delinquency on the property, that Curry had collected over $16,000 in rent during the time Curry had possessed the property, and that Curry was not entitled to any monetary award for the improvements and repair that Curry had allegedly made to the property while he was in possession. Mitchell requested that the circuit court order a deed to be prepared listing Mitchell as the owner of the property and award other relief that the circuit court deemed appropriate.

In his response to Mitchell’s motion for a summary judgment, Curry claimed that Mitchell had not shown that he did not receive proper notice of the tax sale. Curry also argued that he was entitled to an award for the cost of improvements and repairs that he had made to the property while he had possession. With respect to the rents Curry had received while he had had possession of the property, Curry argued that he was not accountable to Mitchell for those rents, pursuant to § 40-10-131, Ala.Code 1975. Curry “neither con-fírm[ed] [n]or deni[ed] the amount of rental payments” that Mitchell claimed that Curry had collected. Curry requested that the circuit court uphold the tax deed, deny Mitchell’s motion for a summary judgment, deny Mitchell’s request for rents received by Curry, and quiet title to the property in Curry. Curry also requested that, if the circuit court found in Mitchell’s favor, it award Curry a sum equal to the amount he had expended on taxes, insurance premiums, and improvements, plus interest, along with the costs of redemption.

On December 8, 2009, the circuit court entered a summary judgment in favor of Mitchell. In its judgment, the circuit court found that Mitchell had not received proper notice of the tax sale and that, accordingly, the tax deed issued to Curry was void. The circuit court also found that because the tax deed was void, Curry was accountable to Mitchell for the $16,646 in rent that Curry had received while he possessed the property under the void tax deed; the circuit court noted that Curry did not dispute the amount of rent that Mitchell had claimed that Curry had received. The circuit court ordered Mitchell to pay Curry $2,744.51 as costs of redemption and ordered the circuit clerk to issue a deed in fee simple to Mitchell for the property.

On December 22, 2009, Curry moved the circuit court, pursuant to Rule 59(e), Ala. R. Civ. P., to alter, amend, or vacate the judgment. In his postjudgment motion, Curry argued that, pursuant to § 40-10-131, he was not liable to Mitchell for any rents Curry had collected while he had had possession of the property. Curry also argued that he had collected at most $6,000 in rent, not the $16,646 claimed by Mitchell. Mitchell replied to Curry’s motion, arguing that, because the tax deed was void, Curry had not had lawful possession of the property. Therefore, Mitchell argued, § 40-10-131 did not protect Curry from liability for the rents that he had received while he had been in possession of the property. Mitchell also argued that Curry had not provided any evidence to support his claim that Curry had collected only $6,000 in rent and that Curry’s factual argument concerning the amount of rent that Curry had collected had come too late because Curry did not make his argument before the circuit court entered its summary judgment.

On March 9, 2010, the circuit court granted Curry’s postjudgment motion. In its order, the circuit court stated that it was granting Curry’s motion “as it relates to back rents. [Curry] is not liable for rents collected.” The circuit court did not disturb any of the other findings that it had made in its summary judgment. Mitchell subsequently appealed to this court.

Standard of Review

Mitchell appeals from the circuit court’s grant of Curry’s postjudgment motion. “This Court reviews a trial court’s rulings on postjudgment motions to determine whether the trial court exceeded its discretion.” Hamm v. Norfolk S. Ry. Co., 52 So.3d 484, 489 (Ala.2010).

Analysis

Section 40-10-131, Ala.Code 1975, provides, in pertinent part:

“Neither the purchaser, nor anyone claiming under him, who may have lawfully obtained possession of any real estate purchased at tax sales shall be liable upon the redemption of such real estate to account to the owner for any rents, issues, or profits during such possession, but as to such rents, issues, and profits he shall be held and considered the rightful owner of such real estate .... ”

Mitchell argues that § 40-10-131 only protects a purchaser who has lawfully obtained possession of a property and that, because Curry’s claim to the property arose out of a void tax deed, he had not lawfully obtained possession of the property. Therefore, Mitchell argues, § 40-10-131 does not protect Curry from liability to Mitchell for the rent Curry had collected upon Mitchell’s redemption of the property. We agree.

In Abates v. Timbes, 214 Ala. 591, 108 So. 534 (1926), the Alabama Supreme Court considered whether former § 3119, Ala.Code 1923, an identically worded predecessor statute to § 40-10-131, acted to bar the recovery by the owner of damages for the detention of a parcel of property when the possessor’s claim arose from a void tax deed. Our supreme court noted that “[former] § 3119[ ] exempts the purchaser at a tax sale who has ‘lawfully obtained possession’ from liability to account for rents, issues, and profits ‘upon redemption.’ ” Abates, 214 Ala. at 592,108 So. at 535. Our supreme court then held that former § 3119 did not exempt a purchaser when the tax sale was void, stating that

“[former § 3119] is intended to protect the purchaser at a valid tax sale, who has lawfully obtained possession before acquiring the legal title, from liability to account for rents upon redemption. It confers no right of entry upon a claimant under a void tax sale as against the lawful owner, nor does it relieve him of damages for detention, whether holding under a void certificate of purchase or a void tax deed.”

Id.

In this ease, Curry’s claim of a right of possession of the property arose from a void tax deed. Therefore, Curry did not lawfully obtain possession of the property within the meaning of § 40-10-131, and that statute does not act to prevent Mitchell from recovering the rent received by Curry during his possession of the property upon Mitchell’s redemption. Id.

Conclusion

Because Curry did not lawfully obtain possession of the property, § 40-10-131 does not protect him from being accountable to Mitchell for rent that Curry had received. Accordingly, we reverse the circuit court’s grant of Curry’s postjudgment motion and instruct the circuit court to reinstate its award to Mitchell of $16,646 for rent received.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

On Application for Rehearing

THOMAS, Judge.

APPLICATION OVERRULED.

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

MOORE, J., dissents, with writing.

MOORE, Judge,

dissenting.

I dissent to the denial of the application for rehearing because I believe that the application raises an argument that should be addressed by modifying this court’s opinion released on original submission.

In his application for a rehearing, Leviene Curry argues that this court erred by holding that he possessed the property “by way of a tax deed.” See Mitchell v. Curry, 70 So.3d 353, 353 (Ala.Civ.App.2010). Curry states that he did not come into possession of the property by way of a tax deed but that, instead, he came into possession by way of a tax-sale certifícate. He correctly points out that § 40-10-74, Ala. Code 1975, provides that he was entitled to possession of the property upon receipt of the tax-sale certificate. Curry posits that, because he held a valid tax-sale certificate, his possession was lawful despite this court’s conclusion that the tax deed was void.

I note, however, that, as pointed out in this court’s opinion issued on original submission in Mitchell, supra, “former § 3119[, an identically worded predecessor statute to § 40-10-131, Ala.Code 1975,] did not exempt a purchaser [‘from liability to account for rents, issues, and profits “upon redemption” ’] when a tax sale was void,” 70 So.3d at 356 (quoting Abates v. Timbes, 214 Ala. 591, 592, 108 So. 534, 535 (1926)) (emphasis added). In the present case, the evidence indicated that the tax sale was void. Therefore, whether Curry obtained possession by way of a tax deed, as stated in this court’s opinion on original submission, or by way of a tax-sale certificate, as argued by Curry in his application for rehearing, is irrelevant to the disposition of this appeal.

Although I ultimately conclude that Curry’s argument is incorrect, I believe that this court’s opinion released on original submission should be modified to clarify that issue.

      . Section 40-10-133 provides, in pertinent part:
      "When application is made to the Land Commissioner by any person to purchase lands in which such person had no interest, the Land Commissioner shall mail a notice in writing to the owner, or some person having an interest in such land, if his place of residence is known, or, if not known, then to the judge of probate of the county in which such lands are situated, informing him that such application has been made and fixing a reasonable time within which such owner or such other person having an interest in the lands may redeem the same.”

      . Curry also claimed that the circuit court lacked jurisdiction over Mitchell's redemption action.
      "Under Alabama law, after a parcel of property has been sold because of its owner’s failure to pay ad valorem taxes assessed against that property (see § 40-10-1 et seq., Ala.Code 1975), the owner has two methods of redeeming the property from that sale: ‘statutory redemption' (also known as ‘administrative redemption’), which requires the payment of specified sums of money to the probate judge of the county in which the parcel is located (see § 40-10-120 et seq., Ala.Code 1975), and 'judicial redemption’ under §§ 40-10-82 and 40-10-83, Ala. Code 1975, which involves the filing of an original civil action against a tax-sale purchaser (or the filing of a counterclaim in an ejectment action brought by that purchaser) and the payment of specified sums into the court in which that action or counterclaim is pending.”

        First Props., L.L.C. v. Bennett, 959 So.2d 653, 654 (Ala.Civ.App.2006). A circuit court has jurisdiction over a "judicial redemption” action. See, generally, First Props., L.L.C., 959 So.2d at 654. Thus, the circuit court had jurisdiction over Mitchell's action to redeem the property.

      . Section 40-10-131 provides, in pertinent part:
      "Neither the purchaser, nor anyone claiming under him, who may have lawfully obtained possession of any real estate purchased at tax sales shall be liable upon the redemption of such real estate to account to the owner for any rents, issues, or profits during such possession, but as to such rents, issues, and profits he shall be held and considered the rightful owner of such real estate....”