text:
    Betty BRADBERRY and Inez T. Jones v. CARRIER CORPORATION et al.
    1100994.
    Supreme Court of Alabama.
    Dec. 16, 2011.

      Kevin D. Graham, Mobile; and Martin K. Berks of Environmental Attorneys Group, PC, Birmingham, for appellants.
    W. Larkin Radney and Charles T. Greene of Lightfoot, Franklin & White, Birmingham, for appellees Carrier Corp., Falk Corp., ASCO-Valve, Inc., and Fischer Controls International, LLC.
    Frank Lankford, Jr., and Stewart W. McCloud of Huie, Fernambucq & Stewart, Birmingham, for appellee John Crane, Inc.
    S. Allen Baker and Jenelle D. Evans of Balch & Bingham LLP, Birmingham, for appellees General Electric Company and Honeywell, Inc.
    F. Grey Redditt, Jr., and Timothy A. Clarke of Vickers, Riis, Murray & Curran, LLC, Mobile, for appellees Goulds Pumps, Inc., and Crane Co.
    David W. McDowell of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, for appellee Surface Combustion, Inc.
    Jonathan Maples and Van Noletto of Carr, Allison, Pugh, Howard, Oliver & Sis-son, Daphne; and David Howard of Carr, Allison, Pugh, Howard, Oliver & Sisson, Florence, for appellees Katy Industries, Inc., and American Gage & Machinery Co.
    William L. Waudby of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, for appellees The Goodyear Tire & Rubber Company, U.C. Realty Corp., and Zurn Industries, LLC.
    H. Thomas Wells, Jr., John A. Smyth III, and Janine A. McKinnon of Maynard, Cooper & Gale PC, Birmingham, for appel-lee Armstrong International, Inc.
    C. Paul Cavender, Allan R. Wheeler, and D. Christopher Carson of Burr & For-man LLP, Birmingham, for appellees Georgia-Pacific Corp. and America Cast Iron Pipe Co.
    William T. Mills - II and Robert W. Heath of Porterfield, Harper, Mills & Mot-low, P.A., Birmingham, for appellees Copes-Vulcan, Inc., Electrolux Home Products, Inc., and The Foxboro Co.

      Keith J. Pflaum of Porterfield, Harper, Mills & Motlow, P.A., Birmingham, for appellee Mayer Electric Supply Co.
    J. Alex Wyatt of Parsons, Lee & Juli-ano, P.C., Birmingham, for appellee Elliott Turbomachinery Company, Inc.
    Joel M. Kuehnert and T. Michael Brown of Bradley Arant Boult Cummings LLP, Birmingham, for appellee Pneumo Abex, LLC.
    William C. Reeves and Donald Alan Windham, Jr., of Balch & Bingham LLP, Jackson, Mississippi, for appellee Babcock Borsig Power, Inc., a/k/a Riley Stoker Corp.
    Evelyn F. Davis and Catherine A. McCormack of Hawkins Parnell Thackston & Young LLP, Atlanta, Georgia, for appel-lee Cooper Industries LLC f/k/a Cooper Industries, Inc., individually and as successor in interest to Crouse-Hinds and Union Carbide Corporation.
    Joe E. Basenberg of Hand Arendall, LLC, Mobile, for appellee Alliance Machine Co.
   BOLIN, Justice.

Betty Bradberry and Inez T. Jones, as the “personal representatives of the heirs-at-law [] and/or wrongful death beneficiaries of’ the decedents, Roland E. Bradber-ry and George D. Jones, respectively (“the plaintiffs”), appeal from summary judgments in favor of Carrier Corporation and multiple other defendants (hereinafter collectively referred to as “the defendants”) in the plaintiffs’ wrongful-death action based on their decedents’ exposure to asbestos in their work environment.

Facts and Procedural History

The plaintiffs and others sued the defendants on October 15, 2008, asserting a wrongful-death action and alleging that their decedents had died as the result of exposure to asbestos particles in their work environment at Marathon Oil Corporation and/or United States Steel Corporation between 1920 and 1990. The plaintiffs alleged that the defendants were jointly and severally liable for the death of their decedents through the contamination of the decedents’ work sites by (1) installing, removing, handling, designing, testing, evaluating, manufacturing, packaging, furnishing, supplying and/or selling asbestos to the work sites; (2) recommending and/or approving the use of asbestos at the work sites; (3) failing to warn of the health hazards associated with the use of asbestos; (4) failing to maintain the decedents’ work sites in a reasonably safe manner; (5) failing to adequately warn; and (6) failing to provide an adequate means of removal of the asbestos from the work sites.

On November 9, 2007, the defendants moved the trial court for a summary judgment, arguing that there was (1) insufficient evidence indicating that the decedents had been exposed to any asbestos-containing products manufactured or supplied by each defendant, (2) that the claim was barred by the applicable statute of limitations, and (3) that the claim was barred by Alabama’s common-law rule of repose.

On January 30, 2008, the plaintiffs moved the trial court to stay the proceedings until this Court issued opinions in two cases then pending before this Court involving the applicability of the rule of repose in asbestos cases. The trial court granted the plaintiffs’ motion to stay the proceedings.

On July 6, 2010, approximately two-and-a-half-years after the proceeding was stayed, Presiding Judge J. Scott Vowell ordered the pending case transferred to the administrative docket where Circuit Judge Caryl Privett would manage the case through the preliminary stages of discovery, dispositive motions, and other pretrial proceedings.

On July 15, 2010, one of the defendants, Leslie Controls, Inc., filed a notice of bankruptcy in the trial court indicating that on July 12, 2010, it had petitioned for bankruptcy under Chapter 11 of the United States Bankruptcy Code and that the plaintiffs’ action against it had been automatically stayed pursuant to § 362 of the Bankruptcy Code.

On August 16, 2010, the trial court set the case for a status conference on September 9, 2010. On August 18, 2010, the trial court entered an order setting all summary-judgment motions for a hearing on October 14, 2010, and requiring all responsive materials be filed on or before September 24, 2010. On September 9, 2010, the day of the scheduled status conference, the plaintiffs filed a notice of status stating that the case was stayed pursuant to § 362 of the Bankruptcy Code. The plaintiffs argued at the status conference that the case was stayed as to all defendants pursuant to the automatic-stay provision of § 362 as the result of the filing for bankruptcy by a number of the defendants, the most recent being Leslie Controls. The trial court disagreed, stating:

“Well, of course with regard to any particular defendant who is in bankruptcy, the stay would obtain. The Court is not of a mind to stay the entire action, but merely the action — the action as it relates to individual parties who are in bankruptcy. And therefore, I would request of the parties the identification of which of the individuals are — or individual parties are in bankruptcy, and at that point I would enter a separate order as to the individual parties that are in bankruptcy and stay those. It is not the Court’s intent to stay the entire proceeding, but only that as relates to the party in bankruptcy.”

The plaintiffs further contended that a defendant in bankruptcy could not be effectively severed and the automatic stay still be complied with because of considerations involving the doctrine of collateral estop-pel, discovery, and the applicable statute of limitations. The defendants argued that the Bankruptcy Code does not prohibit the plaintiffs’ right to proceed against the solvent defendants. The trial court agreed with the defendants, stating:

“That’s been this Court’s ruling in innumerable different cases. I have — I cannot tell you how many cases I’ve got pending where someone is out because of bankruptcy and the case has continued as to others. I will do as I say. I will enter a stay as to those entities which are in bankruptcy, if they are so properly identified to the Court. The Court will not stay the proceedings as to the non-bankrupt defendants.”

Later in the status conference the trial court reiterated its intention to move the case forward as to the solvent defendants and the plaintiffs’ counsel acknowledged his understanding of that decision:

“[The trial court]: [T]he Court has the responsibility to manage cases and move cases, and the Court accepts that as part of her responsibility and takes it seriously.
“[The plaintiffs’ counsel]: I’ve got a clear impression that your Honor intends to move these cases forward regardless, and I’m not trying to continue to debate the issue.”

The trial court again informed the parties at the status conference that the case was set for a summary-judgment hearing on October 14, 2010.

On September 15, 2010, the trial court entered an order requiring the parties to provide it with the names of the defendants that had filed for bankruptcy so it could enter an order severing, staying the action as to, or dismissing those defendants. On September 17, 2010, the plaintiffs filed a notice of objection to the severance or dismissal of those defendants that had filed a petition for bankruptcy, arguing (1) that the plaintiffs’ action against the defendants — whether they were in bankruptcy or not — is a single cause of action that cannot be split into multiple actions; (2) that severing and staying claims against certain defendants does not eliminate the application of the doctrine of res judicata and/or collateral estoppel against both the plaintiffs and the severed defendants; (3) that the trial court should not sever from an action a defendant whose ultimate status has not yet been determined by the bankruptcy court; (4) that a sua sponte dismissal of a defendant simply because of the filing of a petition for bankruptcy is not appropriate as the plaintiffs have not agreed to dismiss their claims against that defendant; and (5) that this Court established precedent in Diaz v. Bill Vann Co. (No. 1090990, March 11, 2011), — So.3d-(Ala.2011) (table), an appeal from the Mobile Circuit Court, which this Court on June 28, 2010, stayed pending bankruptcy proceedings, for automatically staying an action as to all defendants pursuant to § 362 of the Bankruptcy Code.

On September 24, 2010, the plaintiffs responded to the defendants’ motions for a summary judgment, arguing that the trial court’s order of August 18, 2010, setting the defendants’ summary-judgment motions for a hearing and requiring the plaintiffs to file substantive responses to those motions violated the automatic-stay provision of § 362 of the Bankruptcy Code. The plaintiffs further argued:

“Moreover, if the plaintiffs filed substantive responses to the pending motions, which were joined by at least one defendant currently seeking bankruptcy protection and/or are substantively identical to that defendant’s motions, they would necessarily violate the automatic stay. Therefore, the plaintiffs have elected to refrain from filing said response to avoid violating federal law and being found in contempt of the United States Bankruptcy Court.”

The plaintiffs’ response to the defendants’ motions for a summary judgment contained no evidence or argument rebutting the substance of the defendants’ summary-judgment motions.

On November 4, 2010, the trial court conducted a hearing on the defendants’ summary-judgment motions. The plaintiffs again argued that the case was stayed in its entirety pursuant to § 362 of the Bankruptcy Code based on the petition in bankruptcy filed by Leslie Controls. The plaintiffs contended that the trial court could not move the case forward as it pertained to the solvent defendants without violating the automatic stay unless it first severed or dismissed Leslie Controls from the action as it had suggested that it would do. However, the plaintiffs also argued that even severing or dismissing Leslie Controls from the case was inappropriate because their wrongful-death action was an indivisible claim as a matter of law and a severance would result in two separate actions being prosecuted. The plaintiffs further argued that a dismissal of Leslie Controls was inappropriate because it was the plaintiffs’ choice on how to proceed against a bankrupt defendant and that any dismissal before the bankruptcy court’s approval of Leslie Controls’ petition and plan for reorganization was premature. The plaintiffs expressly stated that they were not responding to the substantive merits of the defendants’ summary-judgment motions because to do so would violate the automatic stay.

On February 2, 3, and 4, 2011, the trial court entered orders granting the solvent defendants’ motions for a summary judgment. The trial court certified its summary judgments as final pursuant to Rule 54(b), Ala. R.App. P. On March 3, 2011, the plaintiffs moved the trial court to alter, amend, or vacate its orders. The plaintiffs stated that they had previously objected to the dismissal of Leslie Controls until the bankruptcy court had ruled upon its petition for bankruptcy and informed the trial court that the bankruptcy court had approved Leslie Controls’ petition in bankruptcy and its plan for reorganization and that Leslie Controls could now be properly dismissed from the case without prejudicing the plaintiffs’ claims against it. The plaintiffs asked the trial court to vacate its February 2011 orders and to enter a new order dismissing Leslie Controls and resetting the remaining defendants’ motions for a summary judgment. On March 5, 2011, the trial court entered an order denying the plaintiffs’ postjudgment motion. The plaintiffs appeal.

Standard of Review

“ ‘ “This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. South-Trust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12. ‘[Substantial evidence is 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.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).” ’ ”

Gooden v. City of Talladega, 966 So.2d 232, 235 (Ala.2007) (quoting Prince v. Poole, 935 So.2d 431, 442 (Ala.2006), quoting in turn Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004)). To the extent that the plaintiffs have raised issues on appeal relating to the trial court’s refusal to stay the proceeding against the solvent defendants, that determination involves a question of law and will be reviewed de novo. Ex parte Graham, 702 So.2d 1215 (Ala.1997).

Discussion

The plaintiffs argue that the trial court’s order setting the defendants’ motions for a summary judgment for a hearing and requiring the plaintiffs to submit substantive responses to those motions violated the automatic-stay provision of the Bankruptcy Code. This argument is premised on the plaintiffs’ general contention that Leslie Controls’ filing for bankruptcy completely stayed all litigation in which Leslie Controls was involved, including litigation involving solvent codefen-dants.

The plaintiffs have not cited any provision of the Bankruptcy Code or any caselaw in support of this position. Section 362 of the Bankruptcy Code provides, in part:

“§ 362. Automatic Stay
“(a) Except as provided in subjection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of—
“(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title....”

11 U.S.C. § 362. Section 362 specifically states that the filing of a bankruptcy petition operates as a stay of the continuation of a judicial action against a debtor. Section 362 makes no references to a stay of judicial actions against the debtor’s solvent codefendants.

Beyond the plain language of § 362, courts have consistently held that the automatic-stay provision of § 362 does not act to stay proceedings against a debtor’s solvent codefendants. In Snow v. Baldwin, 491 So.2d 900 (Ala.1986), L.C. Baldwin sold the Bidgood Stationery Corporation to Lamar Snow and George Reasonover. Subsequently, Baldwin and his wife sued Snow and Reasonover seeking damages for default on a promissory note executed as part of the sale of the corporation. Rea-sonover filed a petition in bankruptcy during the pendency of the action, and the action was stayed as to him. The Baldwins informed the trial court that they wished to sever Reasonover from the action and to proceed against only Snow. Although the trial court never entered a formal order severing Reasonover, the action proceeded to trial solely against Snow. Citing Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324 (10th Cir.1984), this Court concluded that the automatic-stay provision of § 362 does not affect a party’s right to proceed against solvent codefen-dants. Snow, 491 So.2d at 902 n. 2.

In Fortier, the Fortiers sued a group of defendants following a dispute arising out of the sale of a shopping center. One of the defendants filed for bankruptcy, and all proceedings against that defendant were automatically stayed pursuant to § 362. The case proceeded to trial against the remaining defendants, and a verdict was returned in favor of the Fortiers. The defendants argued on appeal that the bankruptcy filing by the codefendant stayed the litigation against all the defendants and divested the district court of jurisdiction to hear the case. The United States Court of Appeals for the Tenth Circuit rejected that argument, stating:

“Peterson assumes that an automatic stay under 11 U.S.C. § 362 stays litigation as to co-defendants of the bankrupt. However, the Courts of Appeals have uniformly rejected such an interpretation of the automatic stay provisions of the Bankruptcy Act.
“The Bankruptcy Act provides in pertinent part:
“ ‘(a) [A] petition filed under section 301, 302, or 303 of this title ... operates as a stay, applicable to all entities, of—
“ ‘(1) the commencement or continuation ... of a judicial ... proceeding against the debtor that was or could have been commenced before the commencement of the case under this title ... or to recover a claim against the debtor that arose before the commencement of the case under this title.... ’
11 U.S.C. § 362. The language of the statute extends stay proceedings only to actions ‘against the debtor.’ There is nothing in the statute which purports to extend the stay to causes of action against solvent co-defendants of the debtor. See Williford v. Armstrong World Indus., Inc., 715 F.2d 124 (4th Cir.1983); Wedgeworth v. Fibreboard, 706 F.2d 541 (5th Cir.1983); Pitts v. Unarco Indus., Inc., 698 F.2d 313 (7th Cir.1983). The language of the statute reflects the legislative purposes behind the automatic stay. This is to permit the debtor to organize his or her affairs without creditor harassment and to allow orderly resolution of all claims.
“Congress has said:
“ ‘The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him into bankruptcy.’
“S. Rep. No. 989, 95th Cong., 2d Sess. 54-55 (1978), reprinted in 1978 U.S.Code Cong. & Admin. News 5787, 5840-41.
“‘The automatic stay also provides creditor protection. Without it, certain creditors would be able to pursue their own remedies against the debt- or’s property. Those who acted first would obtain payment of the claims in preference to and to the detriment of other creditors. Bankruptcy is designed to provide an orderly liquidation procedure under which all creditors are treated equally. A race of diligence by creditors for the debt- or’s assets prevents that.’
“H.R.Rep. No. 595, 95th Cong., 1st Sess. 340, reprinted in part in 1978 U.S.Code Cong. & Ad. News 5787, 6297.
“It would make no sense to extend the automatic stay protections to solvent co-defendants. They don’t need it, and at the same time it would work a hardship on plaintiffs, by giving an unwarranted immunity from suit to solvent co-defendants. Extending the stay to protect solvent co-defendants would not advance either of the purposes underlying the automatic stay. Accordingly, we join the other circuit courts in concluding that 11 U.S.C. § 362 stays litigation only against the debtor, and affords no protection to solvent co-defendants. Williford v. Armstrong World Indus., Inc., 715 F.2d 124, 126-27 (4th Cir.1983); Wedgeworth v. Fibreboard Corp., 706 F.2d 541, 544 (5th Cir.1983); Austin v. Unarco Indus., Inc., 70[5] F.2d 1, 4-5 (1st Cir.1983); Pitts v. Unarco Indus., Inc., 698 F.2d 313 (7th Cir.1983); Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194 (6th Cir.1983).
“Inasmuch then as the automatic stay as to Armstrong failed to extend to co-defendant Peterson, the trial court properly heard the claims against Peterson.”

Fortier, 747 F.2d at 1329-30. This holding has been consistently applied in the context of asbestos-related litigation. See Williford v. Armstrong World Indus., Inc., 715 F.2d 124, 126-27 (4th Cir.1983); Wedgeworth v. Fibreboard Corp., 706 F.2d 541, 544 (5th Cir.1983); Austin v. Unarco Indus., Inc., 705 F.2d 1, 4-5 (1st Cir.1983); Pitts v. Unarco Indus., Inc., 698 F.2d 313 (7th Cir.1983); and Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194 (6th Cir.1983).

Accordingly, we conclude that Leslie Controls’ petition in bankruptcy did not automatically stay the litigation as to all remaining solvent defendants and that the trial court did not violate the automatic-stay provision of § 362 by moving forward with the summary-judgment hearing in this case.

The plaintiffs next argue that their wrongful-death action cannot be split into multiple actions. The plaintiffs argued to the trial court that it could not move the case forward as to the solvent defendants without violating the automatic-stay provision of § 362 unless it first severed or dismissed Leslie Controls from the action. However, the plaintiffs also argued that Leslie Controls could not be severed from the case because the wrongful-death action was an indivisible claim and a severance would result in two separate actions being prosecuted. Therefore, the plaintiffs insist, the bankruptcy of Leslie Controls must necessarily stay the wrongful-death action as to all remaining solvent defendants.

We first address the plaintiffs’ contention that the case as to Leslie Controls must first be severed and stayed or that Leslie Controls must be dismissed from the case before the case can proceed against the remaining solvent defendants. When a defendant files a petition in bankruptcy, an automatic stay goes into effect and abates any judicial proceeding against that party. See 11 U.S.C. § 362(a).

“The automatic stay is of broad scope, directing that ‘[a]ll judicial actions against a debtor seeking recovery on a claim that were or could have been brought before commencement of a bankruptcy case, are automatically stayed.’ Maritime [Elec. Co. v. United Jersey Bank ], 959 F.2d [1194,] at 1203, 1206 [ (3d Cir.1991) ] Thus, ‘[o]nce triggered by a debtor’s bankruptcy petition, the automatic stay suspends any non-bankruptcy court’s authority to continue judicial proceedings then pending against the debtor.’ Id. at 1206. Unless relief from the stay is granted, the stay continues until the bankruptcy case is dismissed or closed, or discharge is granted or denied. 11 U.S.C. § 362(c). Once a stay is in effect, without relief from the bankruptcy court, ‘the parties themselves [can]not validly undertake any judicial action material to the ... claim against’ the debtor. Id. at 1207. This includes the filing of motions, which are void ab initio, unless the bankruptcy court later grants retroactive relief. Id. at 1207, n. 13.”

Constitution Bank v. Tubbs, 68 F.3d 685, 691-92 (3d Cir.1995) (footnote omitted).

When a bankruptcy petition has been filed, it is common practice for a non-bankruptcy court in which an action is pending against the debtor and others to sever the action as to the debtor and to proceed against the solvent codefendants. Here, the plaintiffs argue that the trial court could not move the case forward as it pertained to the solvent defendants without violating the automatic stay unless it first severed and stayed the action as to Leslie Controls or dismissed Leslie Controls from the action. The plaintiffs were seeking to prevent the trial court from moving forward with the defendants’ summary-judgment motions. As discussed above, § 362 stays only an action against Leslie Controls; it does not stay the action against the remaining solvent defendants. Although the plaintiffs’ argument that the trial court must first sever and stay the action against Leslie Controls or dismiss Leslie Controls from the action in order to avoid violating the automatic stay is in keeping with the spirit of § 362, this Court is not persuaded that the trial court is required to enter an order formally severing and staying the action as to Leslie Controls or dismissing Leslie Controls from the action. Again, the stay provision in § 362 was automatically triggered as to Leslie Controls at the time it filed its bankruptcy petition. It would seem that the trial court could simply proceed to a summary-judgment hearing as to the solvent codefendants while honoring the § 362 automatic stay against Leslie Controls. See Snow, supra, where the case proceeded to trial against the solvent code-fendant after the debtor had declared bankruptcy where the trial court did not enter a formal order severing the debtor from the case. See also Genna Contracting, Inc. v. Frank Robino Cos., (No. 091-08-082(JTV), Sept. 6, 2010) (Del.Sup.Ct. 2010) (not published in A.2d.).

Accordingly, we conclude that the trial court did not violate the automatic-stay provision of § 362 by letting the case proceed on the solvent defendants’ summary-judgment motions without first entering a formal order severing and staying the action as to Leslie Controls or dismissing Leslie Controls from the case.

We next address the plaintiffs’ contention that the trial court’s allowing the case to proceed on the solvent defendants’ motions for a summary judgment while the case was stayed as to Leslie Controls amounts to an impermissible splitting of this wrongful-death action. “ ‘[I]n Alabama there is but one cause of action for wrongful death, i.e., [Ala.] Code 1975, § 6-5-410.’ ” Sledge v. IC Corp., 47 So.3d 243, 247 (Ala.2010) (quoting Alabama Power Co. v. White, 377 So.2d 930, 933 (Ala.1979)). This Court has stated:

“It has also long been settled that the [wrongful-death statute] creates a single cause of action unknown to the common law and the personal representative is authorized to sue as an agent of legislative appointment for effecting the declared public policy of preventing homicides. Breed v. Atlanta B. & C.R. Co., 241 Ala. 640, 4 So.2d 315 [ (1941) ]; Also it is settled that the suit under this statute may be prosecuted against joint tortfeasors whose wrongful act or negligence proximately causes the death; and they may be sued jointly or separately, but there being but a single cause of action, one recovery and satisfaction is a bar to further prosecution of any other suit on that cause of action. McCoy v. L. & N.R.R. Co., 146 Ala. 833, 40 So. 106 [ (1905) ].”

Tatum v. Schering Corp., 523 So.2d 1042, 1044 (Ala.1988) (quoting Bell v. Riley Bus Lines, 257 Ala. 120, 122-24, 57 So.2d 612, 613-15 (1952)) (emphasis added).

In Shepherd v. Maritime Overseas Corp., 614 So.2d 1048 (Ala.1993), a group of former seamen sued a number of defendants alleging that the seamen had suffered severe illness and/or death because of exposure to asbestos while working aboard ships owned by the defendants. The defendants moved to dismiss the complaints on the ground that the former seamen already had separate actions pending in Texas seeking compensation from certain manufacturers and distributors of asbestos products. The trial court dismissed the seamen’s complaints. The seamen argued on appeal that § 6-5-440, Ala.Code 1975, requires that an action be dismissed only if the plaintiff has a separate action pending against the same defendant or defendants in an Alabama court based on the same cause of action. In discussing the “splitting of causes of action” this Court stated:

“ ‘ “A rational rule deduced from the authorities ... would seem to be that, ‘Where one has received an injury at the hands of two or more persons acting in concert, or acting independently of each other, if their acts unite in causing a single injury, all of the wrongdoers are liable for damages occasioned by the injury.’ It is also manifest that this single injury, in itself or of itself, indivisibly constitutes an indivisible cause of action. This is true, notwithstanding the fact that the party injured could maintain separate suits on this cause of action against the tort-feasors at the same time, and could have sued them jointly, and the mere pendency of suit or judgment without satisfaction could not be set up in defense by either tort-feasor.

614 So.2d at 1050 (quoting Jones v. Russell, 206 Ala. 215, 218, 89 So. 660, 662-63 (1921)).

Because a wrongful-death action may be prosecuted against joint tortfeasors either jointly or separately, the trial court’s allowing the case to proceed against the solvent defendants while the action was stayed as to Leslie Controls pursuant to § 362 does not in itself amount to an impermissible splitting of the wrongful-death action in this case.

The plaintiffs next state that because the trial court proceeded with a hearing on the solvent defendants’ summary-judgment motions, the plaintiffs would possibly be faced with the application of the doctrine of res judicata or collateral estoppel to bar later litigation against Leslie Controls. Under Alabama law the doctrine of res judicata will preclude the relitigation of a claim that was, or could have been, adjudicated in a prior action when the following four elements are established: “ ‘ “(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions.” ’ ” Greene v. Jefferson County Comm’n, 13 So.3d 901, 910 (Ala.2008) (quoting Chapman Nursing Home, Inc. v. McDonald, 985 So.2d 914, 919 (Ala.2007), quoting in turn Equity Res. Mgmt., Inc. v. Vinson, 723 So.2d 634, 636 (Ala.1998)).

The doctrine of res judicata would not apply to any subsequent litigation between the plaintiffs and Leslie Controls because there would not be substantial identity of the parties in any litigation between the plaintiffs and the solvent defendants and subsequent litigation between the plaintiffs and Leslie Controls. Although the solvent defendants and Leslie Controls are joint tortfeasors in this single cause of action for wrongful death, they are not identical parties to the litigation. “Substantial identity requires that ““parties be identical.’””’ Greene, 13 So.3d at 912 (quoting Stewart v. Brinley, 902 So.2d 1, 10 (Ala.2004), quoting in turn McMillian v. Johnson, 878 F.Supp. 1473, 1520 (M.D.Ala.1995)). However, ‘““[a]n exception is made to this requirement for parties in privity with a party to the prior action.” ’ ” Greene, 13 So.3d at 912 (quoting Stewart, 902 So.2d at 10, quoting in turn McMillian, 878 F.Supp. at 1520). “A party is deemed to be in privity with a party to a prior action when there is ‘ “ ‘an identity of interest in the subject matter of litigation.’ ” ’ ” Greene, 13 So.3d at 912 (quoting Stewart, 902 So.2d at 11, quoting in turn other cases). Neither is Leslie Controls in privity with the solvent defendants because there is no “identity of interest” in the litigation. The central inquiry in this wrongful-death action is whether there was sufficient evidence indicating that the plaintiffs’ decedents were exposed to any asbestos-containing products manufactured or supplied by each defendant. This exposure analysis is fact specific to each defendant and sufficient to negate any “identity of interest” between Leslie Controls and the solvent codefendants because it will be incumbent upon each defendant to establish that it was not the source of the asbestos exposure. Inherent in that task is the possibility of having to establish that another eodefendant was the source of the asbestos exposure. This necessarily puts the defendants’ interests as joint tortfeasors at odds with one another.

The doctrine of collateral es-toppel applies when the following elements are shown:

“ ‘(1) [A]n issue identical to the one litigated in the prior suit; (2) that the issue was actually litigated in the prior suit; (3) that resolution of the issue was necessary to the prior judgment; and (4) the same parties.’ ”

Bonner v. Lyons, Pipes & Cook, P.C., 26 So.3d 1115, 1121 (Ala.2009) (quoting Dairyland, Ins. Co. v. Jackson, 566 So.2d 723, 726 (Ala.1990)). Clearly, collateral es-toppel would not be a bar to any subsequent litigation involving the plaintiffs and Leslie Controls for the same reasons that res judicata would not bar any subsequent litigation, i.e., the parties are not the same. Additionally, because the exposure analysis is specific to each defendant, the issue whether the plaintiffs’ decedents were ever exposed to products manufactured by Leslie Controls would not have been “actually litigated” in determining the solvent defendants’ liability. Nor would consideration of the exposure, or lack of exposure, of the plaintiffs’ decedents to products manufactured by Leslie Controls be necessary for a judgment to be entered in the action against the solvent defendants.

The plaintiffs next contend that this Court has established precedent that a wrongful-death action is stayed in its entirety when one of the codefendants files a petition in bankruptcy. The plaintiffs point to an order of this Court issued in Diaz v. Bill Vann Co., supra, also a wrongful-death action involving multiple defendants, in which this Court stayed an appeal as to all defendants after one code-fendant filed a petition in bankruptcy and was granted an automatic stay. Significantly, there was no briefing by the parties on the issue of a stay, and this Court did not issue an opinion on the issue of a stay in that case. The stay was ultimately lifted, and the trial court’s judgment was affirmed without an opinion. Accordingly, the Diaz “case” does not constitute authority for the plaintiffs’ position. See Rule 58(d), Ala. R.App. P.

Finally, the plaintiffs argue that in light of the automatic stay in place for Leslie Controls, the trial court should have resolved all questions of its authority to hold a hearing on the solvent defendants’ pending summary-judgment motions before holding the hearing. Based on the facts presented to this Court as set forth above, we conclude that the trial court had firmly rejected the plaintiffs’ contention that the case was stayed as to all defendants and had clearly informed the plaintiffs of its intention to move forward with summary-judgment proceedings as to the solvent defendants. Although the trial court had alluded that it would sever and stay the proceeding as to Leslie Controls or dismiss Leslie Controls from the action and in doing so would have been keeping with general practice, as discussed above, the trial court was not required to do so in order for the case to proceed as to the solvent defendants. Accordingly, the plaintiffs are not entitled to any relief as to this issue.

The trial court’s summary judgments for the solvent defendants are affirmed.

AFFIRMED.

MALONE, C.J., and WOODALL, MURDOCK, and MAIN, JJ, concur.

      .‘‘[P]ersonal representatives of heirs-at-law" have the capacities of plaintiffs as averred in their complaint. We assume the reference is a reference to the personal representatives of their respective decedent estates.

      . The plaintiffs are two of five personal representatives of five decedents who died after being diagnosed with mesothelioma or lung cancer.

      . The plaintiffs joined the defendants pursuant to Rule 20(a), Ala. R. Civ. P.

      . The plaintiffs in their motion to stay refer to these two cases only as appeals from Colbert County and St. Clair County without reference to case styles or case numbers. Because the motion was filed January 30, 2008, we assume that those appeals have been decided and that this matter is no longer an impediment to this case moving forward.

      . Approximately 20 defendants filed for bankruptcy, some as early as 2004. However, only when Leslie Controls filed for bankruptcy did the plaintiffs contend that the case was stayed as to all defendants.

      . We note that the decision in Diaz was an affirmance without an opinion issued pursuant to Rule 53, Ala. R.App. P. Rule 53(d) provides that such a no-opinion affirmance has no precedential value.

      . On October 13, 2010, upon motion of the plaintiffs, the trial court rescheduled the hearing on the defendants' summary-judgment motions for November 4, 2010.

      . An exception to the general rule that the automatic stay does not apply to solvent code-fendants has been recognized in certain "unusual circumstances” that are not present in this case. See A.H. Robins Co. v. Piccinin, 788 F.2d 994 (4th Cir.1986).


source: Caselaw Access Project

author: THOMAS, Judge. MOORE, Judge,

license: Public Domain

text:
    Carol Jean GRISHAM, as personal representative of the estate of Earnest Herbert Inman, deceased v. Rachel G. EDWARDS.
    2090988.
    Court of Civil Appeals of Alabama.
    Jan. 7, 2011.
    Rehearing Denied July 29, 2011.

      Tim W. Milam, Tuscumbia, for appellant.
    Robert L. Gonce of Gonce & Messer, Florence, for appellee.
   THOMAS, Judge.

Carol Jean Grisham, as the personal representative of the estate of Earnest Herbert Inman, deceased, appeals the trial court’s judgment entered against Inman’s estate and in favor of Rachel G. Edwards (“Ms. Edwards”); the trial court’s judgment declared void for improper execution a deed conveying a piece of real property (“the property”) from James Edwards (“Mr. Edwards”), Ms. Edwards’s husband, and Ms. Edwards (hereinafter collectively referred to as “the Edwardses”) to Inman.

Facts and Procedural History

The Edwardses purchased the property that is the subject of this action on September 15,1960. On January 10,1997, the Edwardses signed a warranty deed (“the 1997 deed”) conveying the property to In-man; Inman recorded the 1997 deed on January 21,1997, with the Colbert Probate Court (“the probate court”). Appearing at the foot of the 1997 deed are the signatures of two witnesses, Robert Thomas Wray II and Janice M. Kiser, attesting to the fact that the 1997 deed was “signed, sealed, and delivered” in their presence. Grisham, who is also a notary public, notarized the 1997 deed.

Grisham testified that she witnessed the Edwardses sign the 1997 deed. Grisham testified that she did not have the Ed-wardses swear under oath that they understood the 1997 deed or that they were executing the 1997 deed voluntarily. Gris-ham testified that she did, however, read the acknowledgment on the 1997 deed to the Edwardses before they signed it and that they understood the contents of the acknowledgment. The acknowledgment on the 1997 deed states:

“I, Carol Jean Grisham, a notary in ■and for [Colbert] County, [Alabama], hereby certify that James W. Edwards and wife, Rachel Gertrude Inman Edwards whose names signed to the foregoing conveyance, and who are known to me acknowledged, before me, on this day that being informed of the contents of this conveyance have executed the same voluntarily....”

The acknowledgment on the 1997 deed indicated that Grisham notarized the 1997 deed on January 15, 1997; however, Gris-ham testified that she had not filled in the date of the acknowledgment, which was typewritten into the acknowledgment, and that she thought January 10,1997, was the “correct” date. Ms. Edwards’s trial attorney, Robert Gonce, and Grisham had the following exchange during Gonce’s redirect examination of Grisham:

“[Gonce]: The [1997] deed was signed by all of these people on January 10th, but you did not put an acknowledgment on there until January 15th?
“[Grisham]: I don’t know. I put [the] acknowledgment on it when it was signed, you can believe that.”

Grisham also testified that she had witnessed the two witnesses sign the 1997 deed. Grisham admitted that she could not remember if the Edwardses signed the 1997 deed inside or outside the house situated on the property.

Wray testified that he had not, in fact, witnessed Ms. Edwards execute the 1997 deed; Wray did not testify whether he had witnessed Mr. Edwards execute the 1997 deed. Wray testified that he had been approached by the Edwardses, Inman, and Grisham and that he had been requested to sign a document. Wray testified that he signed the document presented to him without knowing what it was. Wray further testified that Kiser was “out there” when “they” brought “it” to be signed. Wray testified that “it had already been signed at the time it was brought out there.”

On January 24, 1997, Inman took out an open mortgage on the property in the amount of $50,000. The mortgagee was Grisham. Grisham recorded her mortgage interest in the property.

Mr. Edwards died in November 2000.

On June 22, 2006, Inman signed a warranty deed conveying the property to Gris-ham; this deed was recorded with the probate court on March 24, 2009. Gris-ham testified that Inman conveyed the property to her “[a]s collateral for monies he had borrowed from me.” Grisham further testified that she did not recall exactly how much Inman owed her at the time he conveyed the property to her but that “at one time” he owed her $70,000 to $80,000. Grisham also testified that she had paid Inman approximately $80,000 in cash on the day that Inman conveyed the property to her.

On September 4, 2007, Ms. Edwards sued Inman, seeking to cancel the 1997 deed and to quiet title to the property. In her original complaint, Ms. Edwards argued that “the consideration for the [1997 deed] to [Inman] was an agreement by [Inman] to support [Ms. Edwards] during her lifetime and that [the 1997 deed] is void by virtue of provisions of Ala.Code 1975, § 8-9-12.”

On February 16, 2009, Ms. Edwards filed a motion for a summary judgment. The trial court granted Ms. Edwards’s summary-judgment motion on March 25, 2009.

On April 7, 2009, Grisham filed a motion to set aside the summary judgment entered in favor of Ms. Edwards. Grisham indicated that Inman had died on March 14, 2009, leaving a will appointing her the personal representative of his estate. Grisham requested that “[t]he estate should now be substituted as a party, with ... Grisham as the personal representative.” On June 28, 2009, the trial court granted Grisham’s motion to set aside the summary judgment. However, the trial court did not substitute Grisham as a party. Regardless, Grisham, in her capacity as the personal representative of Inman’s estate, has defended the action from that time forward.

On September 14, 2009, Grisham, as the personal representative of Inman’s estate, filed a motion for a summary judgment. Grisham argued that the 1997 deed could not be set aside pursuant to § 8-9-12 because Mr. Edwards never filed a petition to set aside the 1997 deed during his lifetime.

On February 16, 2010, Grisham, as the personal representative of Inman’s estate, filed a motion to dismiss Ms. Edwards’s complaint, which the trial court denied.

On March 16, 2010, Ms. Edwards filed a motion to amend her complaint, alleging that the 1997 deed “is void because it failed to comply with Ala.Code [1975], § 35-4-20 and Ala.Code [1975], § 34-4-24 in that the deed was never properly witnessed or acknowledged.” The trial court granted Ms. Edwards’s motion to amend her complaint.

On July 1, 2010, following a nonjury trial, the trial court entered a judgement in favor of Ms. Edwards, stating in pertinent part that “[t]he [1997] [d]eed ... is hereby declared null and void and is set aside, based on improper execution of that [d]eed.” The trial court went on to hold that title to “the property ... is vested in [Ms.] Edwards.”

Grisham, as the personal representative of Inman’s estate, appealed to the Supreme Court of Alabama. Our supreme court transferred Grisham’s appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Standard of Review

This court set forth the well established standard by which we review judgments based on ore tenus evidence in Farmers Insurance Co. v. Price-Williams Associates, Inc., 873 So.2d 252 (Ala.Civ.App. 2003):

“ “When ore tenus evidence is presented, a presumption of correctness exists as to the trial court’s findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. J & M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala.1999); Gaston v. Ames, 514 So.2d 877 (Ala.1987). When the trial court in a nonjury case enters a judgment without making specific findings of fact, the appellate court “will assume that the trial judge made those findings necessary to support the judgment.” Transamerica Commercial Fin. Corp. v. AmSouth Bank, 608 So.2d 375, 378 (Ala.1992). Moreover, “[u]nder the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness.” Transamerica, 608 So.2d at 378. However, when the trial court improperly applies the law to [the] facts, no presumption of correctness exists as to the trial court’s judgment. Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996); Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); Gaston, 514 So.2d at 878; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978). “Questions of law are not subject to the ore tenus standard of review.” Reed v. Board of Trustees for Alabama State Univ., 778 So.2d 791, 793 n. 2 (Ala.2000). A trial court’s conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993). This court reviews the application of law to facts de novo. Allstate, 675 So.2d at 379 (“[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the [trial] court’s judgment carries no presumption of correctness.”).’ ”

873 So.2d at 254-55 (quoting City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala. Civ.App.2002)).

Discussion

Grisham, as the personal representative of Inman’s estate, essentially makes two arguments on appeal: (1) that the 1997 deed properly conveyed the property to Inman; and (2) that the 1997 deed has been recorded for more than 10 years and, thus, pursuant to § 35-4-72, Ala.Code 1975, any defect in the acknowledgment or execution of the 1997 deed is cured, bringing the 1997 deed into compliance with § 35-4-65, Ala.Code 1975.

This court set forth the requirements for a valid conveyance in Alabama, as follows:

“ ‘To effectuate a transfer of title to real property, Alabama statutory law requires that a deed be in writing, that the grantor sign the deed, and that it be attested to by at least one witness.’ Smith v. Smith, 820 So.2d 64, 70 (Ala. 2001); § 35-4-20, Ala.Code 1975. ‘If a conveyance is attempted and these requirements are not met, then the conveyance is void.’ Mississippi Valley Title Ins. Co. v. Hardy, 541 So.2d 1057, 1061 (Ala.1989). ‘[A]n attempted conveyance of lands in a manner other than as required by the statute is void.’ Thomas v. Davis, 241 Ala. 271, 275, 2 So.2d 616, 619 (1941).”

Smith v. Smith, 892 So.2d 384, 388 (Ala.Civ.App.2003). Further, our supreme court has held that the requirement that at least one witness attest to the signature of the grantor on a deed may also be satisfied if the deed is “acknowledged before a notary public.” State Dep’t of Revenue v. Ritchey, 541 So.2d 514, 515 (Ala.1989) (citing § 35-4-20 et seq., Ala.Code 1975).

There is nothing in the record to dispute Grisham’s testimony that she witnessed the Edwardses execute the 1997 deed and that she acknowledged the 1997 deed on the same day. Although there is some dispute as to what date the 1997 deed was executed and acknowledged, Grisham undisputedly testified that she acknowledged the 1997 deed on the same day that the Edwardses executed the 1997 deed. Based on Grisham’s undisputed testimony, it is clear in this case that the requirements of a valid conveyance were met. The Edwardses undisputedly executed the 1997 deed and Grisham acknowledged that deed on the same date. Wray’s testimony that he and Kiser had not witnessed the Edwardses execute the deed is not dispositive because Grisham’s acknowledgment satisfies the requirement of § 35-4-20 that a witness’s attestation appear on the deed. Therefore, we reverse the trial court’s judgment holding that the 1997 deed was improperly executed, and therefore void, because it is not supported by the evidence.

Based on our holding that the 1997 deed was properly executed, we need not consider Grisham’s second argument. However, in her appellate brief before this court, and for the first time, Ms. Edwards raises the following argument:

“This appeal is by Carol Jean Grisham who is not a party to this suit. She is the executrix of the estate of Herbert Inman but he conveyed this property to her prior to his death. She has no standing to challenge the judgment of the trial court.”

Ms. Edwards fails to provide any legal authority to support her claim, and it is not this court’s function to create legal arguments for a party on appeal. Rule 28(a)(10), Ala. R.App. P.; see also Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996) (“[Ajppellate courts do not, ‘based on undelineated propositions, create legal arguments for the appellant.’ McLemore v. Fleming, 604 So.2d 353, 353 (Ala.1992). This court will address only those issues properly presented and for which supporting authority has been cited.”). Therefore, we will not consider this argument on appeal.

Ms. Edwards also argues on appeal that Grisham’s brief fails to comply with Rule 28(a)(5), (7), and (10), Ala. R.App. P., and, thus, that the trial court’s judgment is due to be affirmed. We disagree. Although Grisham’s brief is minimally compliant, Grisham does support her argument with relevant caselaw and statutory authority.

Conclusion

Based on the foregoing, we reverse the trial court’s judgment and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN and BRYAN, JJ., concur.

MOORE, J., dissents, with writing, which THOMPSON, P.J., joins.

MOORE, Judge,

dissenting.

I respectfully dissent.

The question whether anyone witnessed the execution of the deed at issue in this case was a question of fact to be determined by the trial court. See West v. West, 620 So.2d 640, 642 (Ala.1993). The presence of the signatures of the purported witnesses upon the deed raised a rebut-table presumption that the deed was properly witnessed. See Farmer v. Hypo Holdings, Inc., 675 So.2d 387, 391 (Ala.1996); and Henslee v. Henslee, 263 Ala. 287, 289, 82 So.2d 222, 224 (1955). However, Rachel G. Edwards presented sufficient evidence from which the trial court could have concluded that, in fact, no one witnessed the execution of the deed, thereby rebutting that presumption. Robert Thomas Wray II testified that neither he nor Janice M. Kiser, the persons listed on the deed as witnesses, actually observed the execution of the deed. Carol Jean Grisham testified that she did witness the execution of the deed, but her testimony was not “undisputed” on that issue, as the main opinion contends. 86 So.3d at 991. Counsel for Ms. Edwards thoroughly cross-examined Grisham, and that questioning reasonably could have convinced the trial court that Grisham was not credible, see In re Anonymous, 869 So.2d 498, 499 (Ala.Civ.App.2003), allowing the trial court to completely reject the entirety of her testimony. See Devan Lowe, Inc. v. Stephens, 842 So.2d 703, 706 (Ala.Civ.App.2002). Applying the ore tenus rule, see Salter v. Hamiter, 887 So.2d 230, 233-34 (Ala.2004), I do not believe this court can disturb the trial court’s finding of fact that no one properly witnessed the execution of the deed, and, therefore, I find no basis for reversing the judgment on that ground.

Grisham further argues on appeal that, pursuant to § 35-4-72, Ala.Code 1975, “[a] deed that has been recorded for more than 10 years cures any defect in an acknowledgment so as to bring it within the scope of [§ ] 35-4-65, [Ala.Code 1975].” Section 35-4-72 provides:

“When a validly executed instrument, not properly acknowledged and recorded, has for 10 years been of record in the office of the judge of probate, the original or a duly certified transcript thereof shall have the same force and effect as evidence as such original or transcript would have had had such instrument been duly acknowledged and recorded.”

Although the evidence reveals that the deed had been recorded for more than 10 years, I conclude also that § 35-4-72 does not support Grisham’s argument. That statute is “not intended to make the registration of an instrument for [10] years a valid deed which was not a valid deed when made.” Holloway v. Henderson Lumber Co., 194 Ala. 181, 185, 69 So. 821, 823 (1915) (discussing predecessor statute to § 35-4-72). In this case, Ms. Edwards argued and presented evidence indicating that the deed was not validly executed. The trial court was within its discretion to conclude, based on that evidence, that § 35-4-72 did not apply to validate the deed.

Because I do not believe that Grisham has presented any arguments on appeal that merit reversal, I respectfully dissent.

THOMPSON, P.J., concurs.

      . At the time Holloway was decided, the predecessor statute to § 35-4-72 included a period of 20 years, rather than 10.


author: WISE, Justice.

text:
    Ex parte Rachel G. EDWARDS. (In re Carol Jean Grisham, as personal representative of the estate of Earnest Herbert Inman, deceased v. Rachel G. Edwards).
    1101316.
    Supreme Court of Alabama.
    Dec. 16, 2011.
    Robert L. Gonce of Gonce & Messer, Florence, for petitioner.
    Submitted on petitioner’s brief only.
   WISE, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973). See also Rule 39(a)(1)(D), Ala. R.App. P.

WRIT DENIED.

MALONE, C.J., and WOODALL, STUART, BOLIN, PARKER, MURDOCK, SHAW, and MAIN, JJ., concur.


author: MOORE, Judge.

text:
    Ex parte ALABAMA STATE PERSONNEL BOARD. (In re Andrew L. Sutley v. Alabama Department of Public Safety).
    2100289.
    Court of Civil Appeals of Alabama.
    May 6, 2011.

      Alice Ann Byrne and Tara S. Knee, legal div., Alabama State Personnel Department, for petitioner.
    Jeffery C. Duffey, Montgomery, for respondent.
   MOORE, Judge.

The Alabama State Personnel Board (“the SPB”) petitions this court for a writ of mandamus directing the Montgomery Circuit Court to vacate its December 21, 2010, order allowing Andrew L. Sutley to add the SPB as a party to Sutle/s appeal from an administrative decision. For the reasons stated below, we grant the petition and issue the writ.

Background

On July 21, 2010, the SPB issued an order upholding the decision of the Alabama Department of Public Safety (“the DPS”) to terminate Sutlers employment as an Alabama state trooper. On August 19, 2010, Sutley filed a notice of appeal from the July 21, 2010, order. That notice of appeal was filed pursuant to Ala.Code 1975, § 41-22-20, a part of the Alabama Administrative Procedure Act (“the AAPA”), Ala.Code 1975, § 41-22-1 et seq., and was filed with the DPS. Sutley designated the DPS as the appellee to that appeal; Sutley did not name the SPB as an appellee.

On September 16, 2010, Sutley filed in the Montgomery Circuit Court a “Petition for Judicial Review,” pursuant to § 41-22-20. Sutley named the DPS as the respondent in that petition; Sutley failed to name the SPB as a party.

On October 28, 2010, the DPS moved to dismiss the action, asserting that it had not been the agency responsible for the ultimate decision to terminate Sutleyts employment. Sutley opposed that motion, and, at a November 28, 2010, hearing before the trial court, Sutley moved to add the SPB as a respondent to his petition. The trial court granted that motion on December 7, 2010, stating that, “for good cause shown the motion is granted”; that order was entered into the State Judicial Information System on December 21, 2010.

In its mandamus petition, the SPB asserts that, because the statutory time limitations set forth in Ala.Code 1975, § 41-22 — 20(d), had expired by the time the December 21, 2010, order was entered, the trial court exceeded its discretion in ordering the SPB to be added as a respondent to Sutley’s administrative appeal. The SPB asserts that, as a result, it has a clear legal right to have the December 21, 2010, order vacated.

Standard of Review

“‘“Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)
“Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003).”

Ex parte Progressive Specialty Ins. Co., 31 So.3d 661, 663 (Ala.2009). A petition for the writ of mandamus is a proper means of seeking review of a trial court’s refusal to dismiss a case for the failure of a party pursuing an administrative appeal to comply with the mandatory procedures for appeal set out in the AAPA. See, e.g., Ex parte Crestwood Hosp. & Nursing Home, Inc., 670 So.2d 45, 48 (Ala.1995) (recognizing that the petitioner was entitled to the requested writ directing the trial court to dismiss the case because the hospital failed to comply with the requirements of the AAPA).

Analysis

The SPB asserts that, because Sutley failed to comply with the statutory requirements of the AAPA within the time allowed by statute, his administrative appeal against the SPB is barred. We agree and issue the writ.

Anyone aggrieved by a final decision of an administrative agency in a contested case is entitled to judicial review as provided in Ala.Code 1975, § 41-22-20. “Appeals from [administrative-agency] decisions are purely statutory and the time periods provided by the statute must be strictly observed_ In other words, the jurisdiction of the trial court is determined by compliance with these statutory time periods.” State Medicaid Agency v. Anthony, 528 So.2d 326, 327 (Ala.Civ.App.1988). Accord Ex parte Worley, 46 So.3d 916, 924 (Ala.2009) (plurality opinion); and Eitzen v. Medical Licensure Comm’n of Alabama, 709 So.2d 1239, 1240 (Ala.Civ.App.1998).

In Davis v. Alabama Medicaid Agency, 519 So.2d 538 (Ala.Civ.App.1987), this court stated:

“ ‘Appeals from agency decisions are purely statutory, and the time constrictions must be satisfied. Athough this result may seem harsh at first blush, our Rules of Civil Procedure have a similar mechanism embodied in Rule 59.1, A[la]. R. Civ. P. A motion for [a] new trial, et cetera, is deemed denied if not ruled on within 90 days. The fact that a court may enter an order after the 90 day period ruling on the motion has no effect in determining the date that the notice of appeal must be filed. The order is a mere nullity. Olson v. Olson, 367 So.2d 504 (Ala.Civ.App.1979).’ ”

519 So.2d at 589-40 (quoting trial court’s order).

Section 41-22-20(b), Ala.Code 1975, mandates that all proceedings seeking judicial review of a final administrative-agency decision in a contested ease are instituted by filing “with the agency” a “notice of appeal or review,” along with a cost bond. Section 41-22-20(d) requires that the “notice of appeal or review” be filed within 30 days of receiving notice of an agency’s final action and requires that a “petition for judicial review” be filed in the circuit court within 30 days of the filing of the notice of appeal or review. Section 41-22-20(h), Ala.Code 1975, requires, among other things, that the petition for judicial review “name the agency as respondent.” Section 41-22-20(d) also authorizes the trial court, for good cause, to extend the filing times stated in the statute up to “an additional 30 days,” or to “issue an order permitting a review of the agency decision” “within four months after the issuance of the agency order.”

In this case, Sutley failed to name the SPB, the agency that was responsible for the decision from which he was seeking judicial review, as a party in either his notice of appeal or his petition for judicial review. Although he eventually moved the trial court to allow him to amend his notice of appeal and his petition for judicial review to add the SPB as a party, and although the trial court ultimately granted that motion, the SPB was not named as a party to Sutley’s appeal within the time allowed by the AAPA.

As our supreme court recognized in Ex parte Worley, supra:

“Tatum clearly did not comply with the statutory requirements for filing an appeal of the Personnel Board’s decision. Although Tatum substantially complied with the requirements of § 41-22-20[, Ala.Code 1975,] by exhausting her administrative remedies within the agency and by filing a notice of appeal, she failed to file a petition in the circuit court as required by § 41-22-20(d), [Ala.Code 1975,] and she failed to strictly comply with the requirements of § 41-22-20(h), Ala.Code 1975. In Ex parte Carlisle, 894 So.2d 721, 728-29 (Ala.Civ.App.2004), the Court of Civil Appeals held that strict compliance with statutory procedure was necessary for a party to obtain review by the circuit court of the action of the State Department of Revenue. Here, Tatum failed to follow the statutorily defined procedure for appealing final decisions of the State Personnel Board, and in doing so she waived her right to judicial review.”

Ex parte Worley, 46 So.3d at 924 (plurality opinion).

Because Sutley failed to strictly comply with the requirements of § 41-22-20(d), we conclude that the requirements for the issuance of the requested writ have been met. We, therefore, grant the SPB’s petition and direct the trial court to vacate its December 21, 2010, order.

PETITION GRANTED; WRIT ISSUED.

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


author: BOLIN, Justice.

text:
    Ex parte Andrew L. SUTLEY. (In re Ex parte Alabama State Personnel Board (In re Andrew L. Sutley v. Alabama Department of Public Safety)).
    1100970.
    Supreme Court of Alabama.
    Nov. 4, 2011.
    Rehearing Denied Dec. 16, 2011.
    Jeffery C. Duffey, Montgomery, for petitioner.
    Luther Strange, atty. gen., and John C. Neiman, Jr., dep. atty. gen.; and Alice Ann Byrne and Tara S. Knee, asst, attys. gen., Alabama State Personnel Board, for respondents Alabama State Personnel Board and Alabama Department of Public Safety.
   BOLIN, Justice.

Andrew L. Sutley petitions this Court for a writ of mandamus directing the Alabama Court of Civil Appeals to quash the writ it issued on May 6, 2011. In its opinion issuing the writ, the Court of Civil Appeals directed the Montgomery Circuit Court to vacate its order of December 21, 2010, adding the Alabama State Personnel Board (“the Board”) as a party to Sutley’s administrative appeal. Ex parte Alabama State Pers. Bd., 86 So.3d 993 (Ala.Civ.App. 2011). We deny the petition.

Facts and Procedural History

Sutley was employed as a State Trooper with the Alabama Department of Public Safety (“the DPS”); effective October 26, 2009, the DPS terminated Sutley’s employment. Sutley appealed his dismissal to the Board. A hearing was held before an administrative law judge, who recommended to the Board that Sutley’s dismissal be upheld. After reviewing the order of the administrative law judge and after hearing oral arguments, the Board entered an order, dated July 21, 2010, upholding the DPS’s decision to terminate Sutley’s employment.

Pursuant to the Alabama Administrative Procedure Act, §§ 41-22-1 through -27, Ala.Code 1975 (hereinafter sometimes referred to as “the AAPA”), Sutley filed a notice of appeal with the DPS, naming only the DPS as the appellee; this notice was filed on August 19, 2010. Thereafter, on September 16, 2010, Sutley filed a petition for judicial review with the Montgomery Circuit Court naming only the DPS, and not the Board, as the respondent. The DPS moved the circuit court to dismiss Sutley’s appeal because, it said, Sut-ley failed to comply with the jurisdictional requirements of § 41-22-20, Ala.Code 1975. Specifically, the DPS asserted the following:

“Copies of the petition shall be served on the agency that issued the final decision and all other interested parties. The facts before this Court are that [Sutley] only named and served [the DPS], who did not render the final decision on July 21, 2010.”

On November 23, 2010, Sutley moved the circuit court to add the Board as a respondent to his petition for judicial review. Following a hearing, the circuit court entered an order on December 21, 2010, allowing Sutley to add the Board as a respondent; this order was entered five months after the Board had entered its final order upholding the DPS’s termination of Sutley’s employment. The Board then petitioned the Alabama Court of Civil Appeals for a writ of mandamus directing the circuit court to vacate its order adding the Board as a respondent to Sutley’s administrative appeal. Specifically, the Board argued that the time limitations set forth in § 41-22-20(d) for filing a notice of appeal and a petition for judicial review had expired by the time the circuit court entered its December 21, 2010, order and that, therefore, the circuit court had exceeded its discretion in ordering the Board to be added as a respondent to Sutley’s administrative appeal. On May 6, 2011, the Court of Civil Appeals issued an opinion, granting the Board’s petition and directing the circuit court to vacate its December 21, 2010, order. Specifically, the Court of Civil Appeals stated:

“Sutley failed to name [the Board], the agency that was responsible for the decision from which he was seeking judicial review, as a party in either his notice of appeal or his petition for judicial review. Although he eventually moved the trial court to allow him to amend his notice of appeal and his petition for judicial review to add [the Board] as a party, and although the trial court ultimately granted that motion, [the Board] was not named as a party to Sutley’s appeal within the time allowed by the AAPA.”

86 So.3d at 996. Sutley then petitioned this Court for a writ of mandamus directing the Court of Civil Appeals to quash its writ issued on May 6, 2011.

Standard of Review

‘[M]andamus is a drastic and extraordinary writ to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’
“Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991).
“Mandamus is a proper remedy for a trial court’s refusal to dismiss a case for failure to comply with the necessary procedures for appeal set out in the AAPA. See, e.g., Ex parte Crestwood Hosp. & Nursing Home, Inc., 670 So.2d 45 (Ala.1995).”

Ex parte Worley, 46 So.3d 916, 921 (Ala.2009)

Analysis

Section 41-22-20, Ala.Code 1975, outlines the procedure for perfecting an appeal from a final decision of an administrative agency. That section states, in pertinent part:

“(a) A person who has exhausted all administrative remedies available within the agency, other than rehearing, and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter....
“(b) All proceedings for review may be instituted by filing of notice of appeal or review and a cost bond with the agency to cover the reasonable costs of preparing the transcript of the proceeding under review, unless waived by the agency or the court on a showing of substantial hardship. A petition shall be filed either in the Circuit Court of Montgomery County or in the circuit court of the county in which the agency maintains its headquarters, or unless otherwise specifically provided by statute, in the circuit court of the county where a party[,] other than an interve-nor, resides or if a party, other than an intervenor, is a corporation, domestic or foreign, having a registered office or business office in this state, then in the county of the registered office or principal place of business within this state.
“(d) The notice of appeal or review shall be filed within 30 days after the receipt of the notice of or other service of the final decision of the agency upon the petitioner.... The petition for judicial review in the circuit court shall be filed within 30 days after the filing of the notice of appeal or review.... Failure to file such petition within the time stated shall operate as a waiver of the right of such person to review under this chapter.... This section shall apply to judicial review from the final order or action of all agencies....
“(h) The petition for review shall name the agency as respondent and shall contain a concise statement of:
“(1) The nature of the agency action which is the subject of the petition;
“(2) The particular agency action appealed from;
“(3) The facts and law on which jurisdiction and venue are based;
“(4) The grounds on which relief is sought; and
“(5) The relief sought.”

(Emphasis added.)

In his petition for a writ of mandamus filed in this Court, Sutley argues that the “agency” referred to throughout § 41-22-20 is the DPS, not the Board, because, he says, the DPS is the agency that made the “final decision” to terminate his employment. We disagree. Section 41-22-20 states that a party “aggrieved by a final decision” is entitled to judicial review of that decision. Clearly, the agency making the final decision in this case is the Board, which issued the July 21, 2010, order from which Sutley appealed. In his petition for judicial review, Sutley specifically states that “[o]n July 21, 2010, a final order was entered by [the Board],” and he “requests [the circuit court] review the final order.” Moreover, we conclude that by using the words “the agency” in the statute, the legislature was referring to a definite agency, i.e., the agency issuing the order appealed from. In Ex parte Worley, supra, this Court stated the following regarding the phrase “final decision” used throughout the AAPA:

“[A] party aggrieved by a ‘final decision’ is entitled to judicial review. A ‘final decision’ is one that garners the support of ‘a majority of the officials who are to render the final order.’ § 41-22-15, Ala.Code 1975.”

46 So.3d at 922. In this case, the record discloses that the Board’s July 21, 2010, order was signed by the officials empowered to issue the order and was, therefore, a final decision. Accordingly, the Board was the agency Sutley should have served and named as respondent in his petition for judicial review.

Section 41-22-20(h) specifically states that the petition for judicial review “shall name the agency as respondent.” Sutley failed to name the Board as a respondent in his petition for judicial review. And, as the Court of Civil Appeals noted, although Sutley eventually moved the circuit court to add the Board as a respondent, and the circuit court ultimately granted Sutley’s motion, the Board was not named as the respondent within the time allowed by the AAPA. “Appeals from decisions of administrative agencies are statutory, and the time periods provided for the filing of notiee[s] of appeal[] and petitions must be strictly observed.” Eitzen v. Medical Licensure Comm’n of Alabama, 709 So.2d 1239, 1240 (Ala.Civ.App.1998). Sutley clearly did not comply with the statutory requirements for perfecting an appeal in the circuit court from the Board’s decision upholding his dismissal by the DPS. Accordingly, Sutley’s failure to comply with the statutory requirements acts a waiver of his right to a review of the Board’s decision. See § 41-22-20(d).

For the reasons stated above, Sutley does not have a clear legal right to a writ of mandamus directing the Court of Civil Appeals to quash its writ issued on May 6, 2011, which directed the circuit court to vacate its order adding the Board as a respondent to Sutley’s administrative appeal. Therefore, his petition is denied.

PETITION DENIED.

MALONE, C.J., and WOODALL, STUART, PARKER, SHAW, and MAIN, JJ., concur.

WISE, J., recuses herself.

      . We note that Sutley cites no caselaw to substantiate his interpretation that the agency referred to in the statute is the DPS, the agency that terminated his employment, rather than the Board, the agency that rendered the final decision upholding the DPS's decision.


text:
    Kenneth Deroy HOLDER v. Lexa Boyd HOLDER.
    2100664.
    Court of Civil Appeals of Alabama.
    Dec. 16, 2011.

      Byron E. House of Cockrell & Cockrell, Tuscaloosa, for appellant.
    James D. Turner of Turner & Turner, P.C., Tuscaloosa, for appellee.
   MOORE, Judge.

Kenneth Deroy Holder (“the husband”) appeals from a divorce judgment entered by the Pickens Circuit Court (“the trial court”). We affirm in part and reverse in part.

Procedural History

On June 22, 2010, Lexa Boyd Holder (“the wife”) filed a complaint for a divorce from the husband. On August 10, 2010, the husband answered and counterclaimed for a divorce. On September 23, 2010, the wife filed a reply to the husband’s counterclaim. On February 4, 2011, the parties and their attorneys appeared before the trial court and announced that they had reached a settlement agreement on all issues. The agreement was read into the record in open court and both parties indicated their assent to the agreement. On March 3, 2011, the husband filed a “Motion for Relief Pursuant to Rule 60(b)[, Ala. R. Civ. P.,]” in which he sought to rescind the settlement agreement. On March 4, 2011, the trial court entered a divorce judgment based on the parties’ settlement agreement. On March 23, 2011, the husband filed a motion to vacate the judgment, to stay enforcement of the judgment, and for a new trial. After conducting a hearing on the husband’s motions on April 1, 2011, the trial court entered an order on April 12, 2011, that effected three changes to the March 4, 2011, divorce judgment and otherwise denied the husband’s motions. The trial court also ordered the husband to pay the wife an attorney fee in the amount of $1,200. On April 13, 2011, the husband filed his notice of appeal to this court.

Discussion

I.

On appeal, the husband first argues that the trial court erred in enforcing a provision of the settlement agreement that required the husband to refinance the parties’ marital residence. Specifically, he argues that the settlement agreement should not have been enforced because, he says, he attempted to secure the financing required under the settlement agreement but was unable to do so.

“Agreements between parties to divorce actions are generally binding, and such agreements will not be set aside, ‘except for fraud, collusion, accident, surprise or some other ground of this nature.’ ” Grantham v. Grantham, 656 So.2d 900, 901 (Ala.Civ.App.1995) (quoting Brocato v. Brocato, 332 So.2d 722, 724 (Ala.1976)). “[A]n agreement reached in settlement of litigation is as binding upon the parties as any other contract. Furthermore, there is a strong policy of law favoring compromises and settlements of litigation, especially in cases involving families.” Tidwell v. Tidwell, 505 So.2d 1236, 1237 (Ala.Civ.App.1987).

In the present case, the parties’ settlement agreement as set forth in the divorce judgment, as amended, stated:

“The [husband] shall contract for an appraisal, using an appraiser approved by the lender refinancing the debt, to be performed on the marital domicile and the five acres upon which it is currently situated, for the purpose of refinancing the same and upon said refinancing shall pay unto the [wife] one-half of the equity in said marital domicile to be determined by subtracting from the appraised amount ... the indebtedness owed on the mortgage on said house and five (5) acres. Said sum shall be paid by the [husband] to the [wife] upon his refinancing of the property, removing the [wife] from any liability whatsoever on said mortgage indebtedness. [The husband] shall refinance the indebtedness on the marital domicile not later than 90 days from the date of th[e] execution of this Decree. At the same time the [husband] shall likewise pay unto the [wife] the sum of Ten Thousand Dollars ($10,-000.00) for the additional ten (10) acres to be acquired by the [husband] from the total acreage owned by the parties hereto.”

At the hearing on the postjudgment motions, the husband testified that, in attempting to refinance the mortgage on the marital residence and the five acres on which it was situated, he had contacted only one bank, which, he testified, was not the same bank that was holding the existing mortgage. He testified that he had sought to finance $183,400, which he testified was the amount he determined he would need in order to payoff the existing mortgage indebtedness, to pay the wife her equity in the marital residence and 5 acres, and to pay the wife the $10,000 for the additional acreage he was obtaining, but that the bank had declined his loan request because his debt-to-income ratio was too high.

The husband testified that the marital residence had been appraised at a value of $265,000 in 2009 and that, two or three days before the postjudgment hearing, he had contacted a real-estate agent, who had advised him that, if he were to sell the home and the five acres, he should list it for sale at $189,000. He testified that, in trying to calculate a “guesstimate” of what the wife’s one-half equity would be, he averaged the amount of the 2009 appraised value and the amount that the real-estate agent told him to list the property for sale ($265,000 + $189,000 = $454,000 + 2 = $227,000), then subtracted from that amount the outstanding mortgage indebtedness ($227,000 - $123,000 = $104,000), and then divided that amount by 2 ($104,-000 -r 2 = $52,000). To come up with the total amount he would need to finance, the husband testified that he added the amount he calculated for the wife’s one-half equity in the marital residence and 5 acres to the amount of the existing mortgage indebtedness ($52,000 + $123,000 = $175,000), and then added to that amount the $10,000 that he was required to pay the wife for the additional 10 acres of land ($175,000 + $10,000 = $185,000).

On cross-examination, the wife’s attorney questioned the husband as to whether he had sought financing for an amount that used only the lesser $189,000 estimated value in calculating the wife’s one-half equity in the property and the amount he would need to finance. The husband responded that he had not. According to our calculations, using the lesser $189,000 estimated value, rather than taking an average of that amount and the 2009 appraised value, would have required the husband to finance only $166,000 ($189,000 - $123,000 = $66,000 -h 2 = $83,000 (wife’s one-half equity) + $123,000 (existing mortgage indebtedness) -I- $10,000 (additional 10 acres) = $166,000), $17,400 less than the $183,400 he sought from the bank. However, because the husband had not sought to obtain financing for that lower amount, we cannot know if he would have qualified for a loan in that amount.

Based on the foregoing, we conclude that the husband did not sufficiently prove that it was impossible for him to fulfill his obligation to secure refinancing under the settlement agreement. Therefore, the trial court did not exceed its discretion in declining to set aside the settlement agreement on that basis.

II.

The husband next argues that the trial court’s judgment, as amended, differs from the parties’ settlement agreement by providing that the wife may move with the parties’ children to Tuscaloosa, by entering an income-withholding order with regard to the husband’s child-support obligation, by failing to set forth the parties’ obligations for the period that the wife resides in the marital residence, by requiring the husband to drop off and pick up the parties’ children for visitation from the wife’s residence, and by providing that application of portions of the Alabama Parent-Child Relationship Protection Act, § 30-3-160 et seq., Ala.Code 1975, had been waived by the husband. Our review of the record reveals that the trial court’s judgment, as amended, does differ from the parties’ settlement agreement on those points.

“The trial court may adopt or reject such parts of the agreement as it deems proper from the situation of the parties as shown by the evidence.” Junkin v. Junkin, 647 So.2d 797, 799 (Ala.Civ.App.1994); see also Freeman v. Freeman, 84 So.3d 939, 943 (Ala.Civ.App.2011). In the present case, however, there was no evidence presented on those issues. “Thus, we cannot conclude that the trial court decided to reject the parties’ ... agreement based on the evidence adduced at the trial.” Freeman, 84 So.3d at 944 (citing Junkin, supra) Therefore, we reverse the trial court’s judgment, as amended, to the extent that it differs from the parties’ settlement agreement as set forth above, and we remand this cause for the trial court to enter a judgment in accordance with the settlement agreement.

III.

The husband also argues that the trial court exceeded its discretion in awarding the wife an attorney fee of $1,200 in its April 12, 2011, postjudgment order. In awarding the attorney fee, the trial court noted that, “other than to make the corrections needed to have the [divorce judgment] conform to the transcript,” the husband’s various motions had been filed without substantial justification. Because we conclude that more of the husband’s arguments had substantial justification than the trial court found, however, we reverse the trial court’s judgment to the extent that it ordered the husband to pay the wife $1,200 in attorney fees. On remand, the trial court is to reconsider the issue of attorney fees.

TV.

Finally, the husband argues that the trial court lacked jurisdiction to enter an order in response to a motion filed by the wife when that order was entered subsequent to the husband’s filing of his notice of appeal. We note, however, that neither the motion nor the order are in the record on appeal. Thus, we cannot determine whether the trial court acted outside its jurisdiction.

“An appellate court does not presume error; the appellant has the affirmative duty of showing error. Perkins v. Perkins, 465 So.2d 414 (Ala.Civ.App.1984). Appellate review is limited to the record and cannot be altered by statements in briefs. Bechtel v. Crown Central Petroleum Corp., 451 So.2d 793 (Ala.1984). Error asserted on appeal must be affirmatively demonstrated by the record. If the record does not disclose the facts upon which the asserted error is based, the error may not be considered on appeal. Liberty Loan Corp. of Gadsden v. Williams, 406 So.2d 988 (Ala.Civ.App.1981).”

Greer v. Greer, 624 So.2d 1076, 1077 (Ala.Civ.App.1993). Accordingly, we decline to consider the husband’s argument on this point.

Conclusion

Based on the foregoing, we reverse the trial court’s divorce judgment, as amended by the April 12, 2011, postjudgment order, to the extent that it does not comport with the parties’ settlement agreement as set forth above, and we remand this cause for the trial court to enter a judgment in accordance with the settlement agreement. We also reverse the trial court’s judgment, as amended, to the extent that it requires the husband to pay the wife $1,200 in attorney fees. On remand, the trial court is to reconsider that award in light of this opinion. The trial court s judgment is affirmed in all other respects.

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

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

      . We note a discrepancy in the husband's testimony on this point. The husband testified that he averaged the 2009 appraisal amount and the estimated value the real-estate agent had given him to come up with the amount he requested to borrow from the bank. However, the husband testified that he had contacted the bank a week after the February 4, 2011, hearing and that he had had the real-estate agent look at the marital residence two or three days before the post-judgment hearing on April 1, 2011. Thus, the husband would not have had the benefit of the real-estate agent’s estimated value of the property at the time he made the inquiry at the bank.

      . Although the husband testified that his calculations indicated that he would need to finance $183,400, using the figures the husband testified that he used, our calculations indicate that he would have needed to finance $185,000.


text:
    F.G. v. A.S.
    2100662.
    Court of Civil Appeals of Alabama.
    Dec. 16, 2011.
    Anne Lamkin Durward of Massey, Stot-ser & Nichols, P.C., Birmingham; and Vicki N. Smith, Columbiana, for appellant.
    Erin C. Bell, Columbiana, for appellee.
   MOORE, Judge.

F.G. (“the mother”) appeals from a judgment entered by the Shelby Juvenile Court (“the juvenile court”) awarding custody of her children, L.P.G. and K.R.G. (“the children”), to A.S., the children’s maternal uncle (“the maternal uncle”), and awarding the mother visitation with the children as arranged by and agreed upon by the parties.

On appeal, the mother argues that the juvenile court erred in certifying the record as adequate for review by this court because, she says, not all of the hearings are transcribed in the record on appeal. We agree.

“In W.E.C. [v. Madison County Department of Human Resources], 909 So.2d [849,] 850 [(Ala.Civ.App.2005)], this court stated:
“ ‘Rule 28(B), Ala. R. Juv. P., provides that an appeal from a juvenile court shall be to the circuit court for a trial de novo when the record on appeal is inadequate for review by an appellate court. Rule 28(D), Ala. R. Juv. P., provides that “[a]n appellate court or circuit court may transfer an appeal that it determines should have been transferred to or brought in another court to that other court.” ’ ”

R.G. v. C.M., 980 So.2d 417, 418 (Ala.Civ.App.2007).

In the present case, there is only one hearing transcribed in the record. At that hearing, the juvenile court indicated that it would be considering “all the things that have gone on in this case before today.” Further, although at that hearing no ore tenus testimony was taken, the juvenile court stated in its judgment that it had considered ore tenus testimony. Thus, it appears that the juvenile court considered evidence from previous hearings, the transcripts of which have not been included in the record on appeal. Therefore, “[i]n accordance with Rule 28(D), Ala. R. Juv. P., we transfer the mother’s appeal to the [Shelby] Circuit Court for a trial de novo.” R.G., 980 So.2d at 418.

APPEAL TRANSFERRED.

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


author: THOMAS, Judge.

text:
    Randall Eric BALDWIN v. Stephanie BAKER.
    2101141.
    Court of Civil Appeals of Alabama.
    Jan. 6, 2012.

      J. Zach Higgs, Jr., of Higgs & Emerson, Huntsville, for appellant.
    Submitted on appellant’s brief only.
   THOMAS, Judge.

In 2008 Stephanie Baker filed a petition for protection from abuse (“PFA”) against Randall Eric Baldwin in the Madison Circuit Court pursuant to the former Alabama Protection from Abuse Act (“the former Act”). See Ala.Code 1975, former § 30-5-1 et seq. Baldwin says that he and Baker had cohabited and that they have one child together. Baker appeared pro se at the PFA hearing. Rather than obtaining a PFA order, Baker entered into an approved consent agreement with Baldwin, which addressed, among other things, Bald-win’s paternity as to the child, the parties’ agreement as to custody of and visitation with the child, and the amount of the child-support payments Baldwin was obligated to pay to Baker (“the 2008 judgment”). Baker did not insist that the circuit court enter a PFA order against Baldwin, and as previously noted, the circuit court entered no such order. The 2008 judgment stated that it was “effective immediately” and that it could be modified only by a court order. In August 2008, the circuit court modified the 2008 judgment to decrease the amount of Baldwin’s monthly child-support obligation (“the 2008 modified judgment”). The 2008 modified judgment stated that it was effective “from this date forward.” All other provisions of the 2008 judgment remained unchanged.

According to Baldwin, he lost his job in 2010, and, on September 28, 2010, he filed a petition for a modification of his child-support obligation under the 2008 modified judgment. The circuit court reviewed his petition and required Baldwin to submit a memorandum because it “ha[d] questions regarding [its] jurisdiction ... to enter any orders.” Baldwin complied, and, on July 20, 2011, the circuit court dismissed the action for lack of subject-matter jurisdiction pursuant to subsections (d)(5) and (e)(1) of § 30-5-7 of the former Act. Specifically, the circuit court determined that it lacked jurisdiction to consider Baldwin’s petition because, it held, under the provisions of the former Act, the 2008 judgment and the 2008 modified judgment (hereinafter referred to collectively as “the 2008 judgments”) expired on May 12, 2009, a year after the 2008 judgment was entered. Baldwin timely appeals to this court, seeking a review of the circuit court’s judgment that it lacked subject-matter jurisdiction over his petition to modify. “Matters of subject-matter jurisdiction are subject to de novo review.” DuBose v. Weaver, 68 So.3d 814, 821 (Ala.2011).

On appeal, Baldwin contends that the circuit court retained jurisdiction to modify the 2008 judgments because, he says, the circuit court intended that the 2008 judgments would be permanent and, he says, interpreting the 2008 judgments as temporary orders would serve to illegi-timize the child and would offend our state’s policy of encouraging judicial economy.

After the entries of the 2008 judgments, our legislature revised the Alabama Protection from Abuse Act (“the revised Act”). See supra note 1. The revised Act deleted the reference in the former Act to an approved consent agreement. Compare § 30 — 5—T(d)(1) of the revised Act with § 30-5-7(e)(l) of the former Act. The revised Act also provides that a “temporary ex parte” PFA order will remain in effect until a final PFA order, of permanent duration, is issued and that both a temporary PFA order and a final PFA order may be modified by subsequent court orders. See Ala.Code 1975, § 30-5-7(d)(l) & (2). The revised Act became effective July 1, 2010; however, we evaluate Baldwin’s appeal pursuant to the provisions of the former Act because Baker filed her original petition, and the circuit court entered the judgments Baldwin seeks to modify, in 2008, before the July 1, 2010, effective date of the revised Act. See I.S.T. v. R.W.B., 54 So.3d 427, 432 (Ala.Civ.App.2010) (concluding that an action is governed by the provisions of a former Act when a party files a petition before the effective date of a revised Act). Subsections (d)(5) and (e)(1) of § 30-5-7 of the former Act provided as follows:

“(d) A court may grant any of the following relief in a final order for protection or a modification of an order after notice and hearing, whether or not the defendant appears:
“(5) Order the defendant to pay temporary reasonable support for the plaintiff or any child in the plaintiffs custody, or both, when the defendant has a legal obligation to support such person. The amount of temporary support awarded shall be in accordance with Child Support Guidelines.
“(e)(1) Any final protection order or approved consent agreement shall be for a period of one year unless a shorter or longer period of time is expressly ordered by the court. While the order is in effect, the court may amend its order or an approved consent agreement at any time upon subsequent petition filed by either party and a hearing held pursuant to this chapter.”

(Emphasis added.)

We agree with the circuit court that the 2008 judgments expired by operation of law on May 12, 2009, and that, therefore, the circuit court lacked jurisdiction to consider Baldwin’s petition to modify.

Baldwin contends that the circuit court’s inclusion of the language “from this date forward” and “effective immediately” in the 2008 judgments satisfies the requirement in § 30-5-7(e)(l) of the former Act that the circuit court expressly specify if an approved consent agreement is to extend beyond the one-year limitation in § 30-5-7(e)(l) of the former Act. We are not convinced.

As Baldwin points out, “express” means “[cjlearly and unmistakably communicated; directly stated.” Black’s Law Dictionary 661 (9th ed.2009). He contends that the use of the phrase “from this date forward” in the 2008 modified judgment “expressly extended [the circuit court’s] order into the future” and made the 2008 judgments effective “for the duration of the minority of the child.” We cannot agree with Baldwin that the phrases “from this date forward” and “effective immediately” clearly and unmistakably indicate that the circuit court intended that the 2008 judgments would remain in effect for the “duration of the minority of the child.” Under the provisions of the former Act, if the circuit court had intended that the approved consent agreement was to be effective for a shorter or a longer period than the statutorily mandated period of one year, the circuit court was required to clearly and unmistakably communicate the length of that period. Our review of the record reveals that circuit court did not clearly and unmistakably state that the approved consent agreement would be effective for any particular period. The circuit court’s 2008 judgments are more properly read as being “effective from this date forward” and “immediately effective” for one year after the entry of the 2008 judgement.

Finally, Baldwin’s policy arguments are unavailing. Baldwin asserts that we should interpret the 2008 judgments as having permanent duration because any other interpretation acts to illegitimize the child and creates a need for repetitive, unnecessary litigation. This court lacks the power to interpret a judgment in a way that would violate the unambiguous language of a statute; it is this court’s duty, to ascertain and effectuate the legislative intent expressed by the plain meaning of the statute. See Ex parte Webb, 53 So.3d 121, 131 (Ala.2009); White Smile USA, Inc. v. Board of Dental Exam’rs of Alabama, 36 So.3d 9, 15 (Ala.2009); and Ex parte T.B., 698 So.2d 127, 130 (Ala.1997).

In this case, the former Act unambiguously provided that any PFA order or approved consent agreement reached by the parties at a PFA hearing would expire in one year unless the court specifically stated a longer or shorter period of duration. As discussed above, our legislature has amended the former Act and has deleted the one-year expiration provision; however, any PFA order or approved consent agreement entered into before the July 1, 2010, effective date of the revised Act expired by operation of law in one year, unless the court stated a longer or shorter period of duration.

The circuit court’s judgment determining that it lacked subject-matter jurisdiction over Baldwin’s petition to modify is affirmed.

AFFIRMED.

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

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

      . In 2010, the Alabama Legislature revised the Alabama Protection from Abuse Act, codified at Ala.Code 1975, § 30-5-1 et seq., effective July 1, 2010.

      . Baker did not file a brief on appeal.