author: BOLIN, Justice. SEE, Justice

text:
    Ex parte Brett YANCEY. (In re Paul Dodd and Cynthia Dodd, as parents and next friends of Charles Alexander Coker, a minor v. Matthew Messer and Brett Yancey).
    1070922.
    Supreme Court of Alabama.
    Oct. 31, 2008.

      Mark S. Boardman and Katherine C. Hortberg of Boardman, Carr, Hutcheson & Bennett, P.C., Chelsea, for petitioner.
    Rex W. Slate and W. Cone Owen, Jr., of Smith & Alspaugh, P.C., Birmingham, for respondents Paul Dodd and Cythia Dodd, on behalf on their minor child, Alex Coker.
    Rebecca A. Walker, Gadsden, for respondent Matthew Messer.
   BOLIN, Justice.

Brett Yancey, a football coach and teacher employed by the Etowah County Board of Education (“the Board”), petitions this Court for a writ of mandamus directing the Etowah Circuit Court to enter a summary judgment in his favor on the basis of State-agent immunity as to the negligence and wantonness claims asserted against him by Paul Dodd and Cynthia Dodd, as next friends and parents of Charles Alexander Coker, a minor (collectively referred to as “Coker”), and by Matthew Messer.

Facts

At the time of the incident made the basis of this action, Charles was enrolled in the 11th grade at Southside High School (“the school”). Brett Yancey was employed as the head football coach and director of athletics at the school. In the spring of 2004, Charles was enrolled in the first-block weight-lifting class taught by Yancey for those students participating in the school’s football program. Yancey was given no guidelines or direction on how to teach the weight-lifting class, and there was no textbook for the class. The weight-lifting class consisted of the students’ lifting weights and participating in speed and agility drills as part of the strength and conditioning program for the members of the football team. The students were required by Yancey, as part of the weight-lifting class, to clean the weight room, locker room, and bathrooms located in the field house. Yancey stated that the purpose of having the students clean the field house was to help prepare them for football by instilling “team discipline” in the students.

On April 13, 2004, at the conclusion of the weight-lifting class and after the students had changed into their school clothes, Charles and the other students cleaned the field house as they normally did. After the field house was cleaned, Yancey directed several students, including Charles and Messer, to carry the filled trash barrels to the school’s dumpsters, which were located behind the school’s cafeteria, a relatively short distance from the field house. Messer, a licensed driver, retrieved his pick-up truck from a campus parking lot and drove it to the field house, where the students loaded the trash barrels onto the pick-up truck. Although Yancey testified that he routinely allowed students to use their pick-up trucks to haul the trash barrels to the dumpsters, he did not specifically instruct the students — including Messer on this occasion — to use one of their vehicles to carry the trash barrels to the dumpsters.

After the trash barrels were loaded onto Messer’s pick-up truck, Messer and three other students climbed into the cab of the truck while Charles and Barry Hill, another student in Yancey’s weight-lifting class, climbed into the bed of the pick-up truck with the trash barrels. Messer stated that he was not aware that Charles had climbed onto the truck. Charles, on the other hand, testified that Messer was aware that he had climbed onto the truck. The tailgate on Messer’s truck was left down. Charles testified that he could have closed the tailgate and then climbed over it when he entered the bed of the truck but did not do so. Charles testified that he sat near the rear of the truck bed with his legs extended out in front of him. Hill testified in his affidavit that Charles kneeled on the tailgate and held onto the tailgate’s support cable.

The field house is located at the end of the athletic practice field for the school. The practice field is surrounded by a track and enclosed by a fence. School parking lots are located on both the right and left sides of the practice field. A one-way Street runs adjacent to the parking lot on the left side of the practice field. This one-way street, which runs in the opposite direction of the field house, separates the parking lot on the left side of the practice field from an additional school parking lot located across the one-way street. The school’s cafeteria and dumpsters are located behind the field house.

There appears to have been three possible routes from the field house to the dumpsters. Yancey did not instruct Mes-ser and the other students to take a particular route to the dumpsters. He testified that the route students normally took to the dumpsters, and the one he assumed the students would take on the day in question, required a truck to be positioned in the parking lot on the left side of the practice field close to the field house. The students would carry the trash barrels from the field house to the truck through a small opening in the fence that encloses the practice field. Once the trash barrels were loaded onto the truck, the truck would exit the parking lot and turn right onto the one-way street, going the wrong way. The truck would then travel a short distance in the wrong direction on the one-way street to the dumpsters. Yancey opined that this route did not require the students to actually leave the campus.

Yancey testified that when he carried the trash barrels to the dumpsters he would drag them along a walking path. This path runs to the rear of the field house along the left side and across a parking lot to the dumpsters.

The route actually taken by Messer and the students on the day in question allowed Messer to position his truck directly in front of the field house by driving onto the track surrounding the practice field through a gate on the fence on the right side of the practice field. Once the trash barrels were loaded onto the truck, Messer exited the practice field through the gate by which he had entered and drove into the parking lot on the right side of the field house. Messer then drove to the lower end of the parking lot and turned right onto a street. Messer then turned right off of this street onto the one-way street that bisects the parking lots and proceeded in the wrong direction on the one-way street to the dumpsters. This route, as opposed to the route students normally took to the dumpsters, required Messer to drive in the wrong direction on the one-way street for a greater distance in order to reach the dumpsters. As Mes-ser was driving down the one-way street to the dumpsters his truck hit a “dip” and Charles fell from the bed of the truck and was severely injured.

Charles testified that the students could have walked the trash barrels to the dumpsters from the field house in less time than it took to retrieve Messer’s truck and haul the barrels to the dumpsters. Charles also testified that he could have walked to the dumpsters to meet Messer and the other students to help them unload the trash barrels.

Yancey presented the affidavit of Jerome Wilkens, a retired member of the Board, who testified that the Board had no written policy prohibiting students from leaving the school campus in their vehicles during school hours. Yancey stated that students were permitted to leave campus during school hours to attend vocational school, baseball practice, and softball practice. However, the student handbook in effect at the time of the incident provides under its general rules provision that “[sjtudents are not permitted to go to a car or parking lot without permission of Principal or Assistant Principal.” The student handbook also provides the following with regard to parking rules: “All students will come immediately into the school after parking their cars, and shall not return to the car until the end of the school day without permission from the administration. When possible an administrator will accompany the student to the car.” Yan-cey stated that he was provided a copy of the student handbook but that he had not read it. Following the accident, Gene Johnson, the school’s principal, notified Yancey by letter that when “giving instructions to students be very specific to detail and at no time can you let a student use their vehicle unless we have written permission from the parent.”

Coker sued Messer, who was then a minor, alleging negligence and wantonness in the operation of his truck, which proximately resulted in Charles’s being injured. On April 5, 2006, Coker amended his complaint to add Yancey as a defendant, alleging that Yancey had negligently and wantonly directed the students to remove the trash barrels to the school dumpsters and had negligently and wantonly supervised the students.

On May 4, 2006, Yancey answered the complaint, asserting among other defenses, State-agent immunity as a defense to Coker’s complaint. On May 11, 2006, Messer answered Coker’s complaint and cross-claimed against Yancey. Messer alleged that Yancey had negligently and wantonly ordered him to drive his truck off campus by requiring him to carry the trash barrels to the dumpsters without first obtaining permission from a parent and had negligently and wantonly failed to supervise the students Yancey had ordered to remove the trash barrels to the dumpsters.

On November 13, 2007, Messer moved for a summary judgment as to the cross-claim asserted against Yancey. Messer argued that Yancey was not entitled to State-agent immunity because, Messer argued, Yancey was not acting within the general scope of his authority because his actions violated school policy set forth in the student handbook. On November 15, 2007, Yancey moved for a summary judgment arguing, among other things, that he was entitled to State-agent immunity as to the negligence and wantonness claims asserted against him by Coker and Messer. The trial court, on February 21, 2008, entered an order denying Yancey’s motion for a summary judgment. This petition followed.

Standard of Review

This Court has stated:

“ ‘While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion grounded on a claim of immunity is reviewable by petition for writ of mandamus. Ex parte Purvis, 689 So.2d 794 (Ala.1996)
“ ‘Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), Ala. R. Civ. P., Young v. La Quinta Inns, Inc., 682 So.2d 402 (Ala.1996). A court considering a motion for summary judgment will view the record in the light most favorable to the nonmoving party, Hurst v. Alabama Power Co., 675 So.2d 397 (Ala.1996), Fuqua v. Ingersoll-Rand Co., 591 So.2d 486 (Ala.1991); will accord the nonmoving party all reasonable favorable inferences from the evidence, Fuqua, supra, Aldridge v. Valley Steel Constr., Inc., 603 So.2d 981 (Ala.1992); and will resolve all reasonable doubts against the moving party, Hurst, supra, Ex parte Brislin, 719 So.2d 185 (Ala.1998).
“ ‘An appellate court reviewing a ruling on a motion for summary judgment will, de novo, apply these same standards applicable in the trial court. Fu-qua, supra, Brislin, supra. Likewise, the appellate court will consider only that factual material available of record to the trial court for its consideration in deciding the motion. Dynasty Corp. v. Alpha Resins Corp., 577 So.2d 1278 (Ala.1991), Boland v. Fort Rucker Nat’l Bank, 599 So.2d 595 (Ala.1992), Rowe v. Isbell, 599 So.2d 35 (Ala.1992).’ ”

Ex parte Turner, 840 So.2d 132, 135 (Ala.2002) (quoting Ex parte Rizk, 791 So.2d 911, 912-13 (Ala.2000)). A writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: “‘(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’ ” Ex parte Nall, 879 So.2d 541, 543 (Ala.2003) (quoting Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001)).

Discussion

In Ex parte Cranman, 792 So.2d 392 (Ala.2000), a plurality of this Court restated the test for determining when a State employee is entitled to State-agent immunity:

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

792 So.2d at 405. Although Cranman was a plurality decision, the restatement of law as it pertains to State-agent immunity set forth in Cranman was subsequently adopted by this Court in Ex parte Rizk, 791 So.2d 911 (Ala.2000), and Ex parte Butts, 775 So.2d 173 (Ala.2000).

Additionally, this Court has stated:

“This Court has established a ‘burden-shifting’ process when a party raises the defense of State-agent immunity. Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala.2003). In order to claim State-agent immunity, a State agent bears the burden of demonstrating that the plaintiffs claims arise from a function that would entitle the State agent to immunity. Giambrone, 874 So.2d at 1052; Ex parte Wood, 852 So.2d 705, 709 (Ala.2002). If the State agent makes such a showing, the burden then shifts to the plaintiff to show that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority. Giambrone, 874 So.2d at 1052; Wood, 852 So.2d at 709; Ex parte Davis, 721 So.2d 685, 689 (Ala.1998). ‘A State agent acts beyond authority and is therefore not immune when he or she “fail[s] to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.” ’ Giambrone, 874 So.2d at 1052 (quoting Ex parte Butts, 775 So.2d 173, 178 (Ala.2000)).”

Ex parte Estate of Reynolds, 946 So.2d 450, 452 (Ala.2006).

I.

We first must determine whether Yancey sufficiently demonstrated that the claims asserted against him arise from a function that would entitle him to State-agent immunity. As stated in Cranman:

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

792 So.2d at 405 (emphasis added).

“Generally, State agents are afforded immunity from civil liability when the conduct made the basis of the claim is based on the exercise of judgment in supervising and educating students.” Ex parte Nall, 879 So.2d at 544. This Court recently stated that “[ejducating students includes not only classroom teaching, but also supervising and educating students in all aspects of the educational process.” Ex parte Trottman, 965 So.2d 780, 783 (Ala.2007).

Yancey was employed by the Board as the school’s head football coach and the director of athletics. Part of his duties included teaching a weight-lifting class for those students participating in the school’s football program. Yancey was given no guidelines or direction on how to teach the weight-lifting class, and there was no textbook for the class. Yancey required the students, as part of the weight-lifting class, to clean the weight room, locker room, and bathrooms located in the field house. Yan-cey’s purpose for having the students clean the field house was to help prepare them for football by instilling “team discipline” in the students. Because Yancey was given no guidelines in teaching the weightlifting class, the conduct of the class was left to the exercise of his judgment and discretion. Accordingly, we conclude that, at the time of Charles’s injury, Yancey was engaged in a function that would entitle him to immunity. Ex parte Cranman, supra.

II.

Because we have concluded that when Charles was injured Yancey was engaged in a function that would entitle him to immunity, the burden shifts to Coker and Messer to establish that Yancey acted willfully, maliciously, fraudulently, in bad faith, or beyond his authority. Ex parte Cranman, supra. “A State agent acts beyond authority and is therefore not immune when he or she ‘fail[s] to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.’ ” Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala.2003) (quoting Ex parte Butts, 775 So.2d at 178).

In this case Yancey was provided a copy of the student handbook that prohibited students from going to their vehicles or to the parking lot “without the permission of Principal or Assistant Principal.” The handbook also required students to come immediately into the school after parking their cars and forbade them from returning to their vehicles until the end of the school day without first obtaining “permission from the administration.”

Yancey contends that he is not bound by the student handbook because, he says, it governs students only and not faculty. He further contends that, assuming he is bound by the student handbook, as the school’s athletics director he was a member of the “administration” and, therefore, had the authority to allow the students to return to their vehicles during the course of the school day. We disagree.

The student handbook was provided to both students and faculty alike. Although the handbook primarily references student conduct, it nonetheless establishes by implication limits on the faculty’s authority. In the context of a student-teacher relationship, the teacher assumes the role of the authority figure. In order to function in that role, the teacher assumes a duty pursuant to the handbook to ensure that the student abides by the limits placed on the conduct by the handbook. For example, if the handbook limits the student’s conduct by forbidding the student from returning to his or her vehicle in the parking lot during the school day, the teacher’s authority with respect to permitting or directing the student’s conduct must be correspondingly limited. Otherwise, the teacher would become complicit in the violation of the rule, and the rule would be rendered meaningless. Accordingly, we conclude that the student handbook established limits on Yancey’s authority in exercising his judgment in educating students.

As for Yancey’s contention that as the director of athletics for the school he was a member of the “administration,” we note that the handbook identifies on its cover the principal and assistant principal of the school, along with the superintendent and assistant superintendent and other school officials. The director of athletics is not identified there. Rather, the director of athletics is identified on the inside of the handbook, together with the other teachers, under a section entitled “Faculty and Staff.” Thus, we conclude that Yancey was a teacher and an administrator insofar as school athletics are concerned but that he was not a school administrator, and therefore he had no authority to grant permission for a student to return to his vehicle during the school day. Moreover, even assuming Yancey could have been considered an administrator, he would have had the authority under the handbook only to allow the students to return to their vehicles during the school day. Nothing in the handbook can be read as giving an administrator the authority to permit the students to operate their vehicles for the purpose of hauling trash. This is further supported by the letter to Yan-cey from Principal Johnson following the accident informing Yancey that the students are not allowed to operate their vehicles during the school day without permission from their parents.

The materials before this Court indicate that Yancey, by his own admission, routinely permitted his students to return to, and use, their vehicles to remove trash barrels from the field house to the dumpsters behind the field house. This practice is a clear violation of the policy set forth in the student handbook, to which Yancey is bound. Accordingly, we conclude that Coker and Messer presented substantial evidence, in large degree through Yancey’s own statements, that Yancey acted beyond his authority in permitting Messer to use his vehicle to move the trash barrels from the field house to the dumpsters and has therefore failed to establish a clear legal right to the relief sought. Therefore, his petition for the writ of mandamus is denied.

PETITION DENIED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, and PARKER, JJ., concur.

SEE, J., concurs specially.

MURDOCK, J., dissents.

SEE, Justice

(concurring specially).

I agree with the main opinion that Yan-cey has not demonstrated that he is entitled to the writ of mandamus. The doctrine of sovereign immunity does more than offer a defense at trial. Qualified immunity “is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). See also Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991) (“One of the purposes of immunity, absolute and qualified, is to spare a defendant not only unwarranted liability but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.”). Therefore, we should be reluctant to send the question of sovereign immunity to the jury, because doing so defeats a fundamental function of the doctrine.

Additionally, sovereign immunity is not intended to be limited to protecting a public actor only when he or she is acting in complete compliance with every statute, rule, and regulation; instead, it is intended to protect the public actor when he or she has a lapse in judgment or imperfectly carries out responsibilities. See, e.g., Ex parte Kennedy, 992 So.2d 1276, 1280 (Ala.2008) (“ ‘State-agent immunity protects state employees, as agents of the State, in the exercise of their judgment in executing their work responsibilities.’ ” (quoting Ex parte Hayles, 852 So.2d 117, 122 (Ala.2002))).

I have previously noted that “to deny teachers State-agent immunity and to require them to defend themselves in civil actions brought by students or parents would discourage them in the performance of their public responsibilities.” Giambrone v. Douglas, 874 So.2d 1046, 1057 (Ala.2003) (See, J., specially concurring). In the case before us, however, Yancey did not display a mere lapse in judgment by allowing Messer to use his own truck to move the trash barrels to the dumpster. The record indicates that it was Yancey’s practice to allow the students in his weight-lifting class to use their personal cars and trucks to move the trash barrels to the dumpster — a practice that is a direct violation of a clear school policy stated in the student handbook. There is no suggestion that Yancey had requested or received a variance from compliance with that policy or that the handbook is not binding on Yancey. See Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000) (“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity ... when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”).

Thus, I agree that Yancey has failed to demonstrate that he has a clear legal right to a summary judgment based on his immunity defense. I also agree, therefore, that Yancey is not entitled to the writ of mandamus. Ex parte Nall, 879 So.2d 541, 543 (Ala.2003).

      . Yancey testified that immediately after instructing the students to carry the trash barrels to the dumpsters, he returned to his office in the field house to take a telephone call. He stated that he was not present when the students were loading the barrels onto Messer’s pick-up truck. Charles testified in his deposition taken on February 28, 2006, that he and the other students loaded the barrels onto the truck and that Yancey was not present. However, later in the same deposition Charles stated that he did not load any trash barrels onto Messer’s pick-up truck; rather, he stated that Yancey asked him to "go help them unload it.” It could be inferred from this statement that Yancey was present when the trash barrels were being loaded onto Messer's pickup truck. Messer testified that Yancey was present when the trash barrels were being loaded onto his truck and told the students to "put up the tailgate.” Nevertheless, Yancey testified that he routinely allowed the students in the weight-lifting class to use their pick-up trucks to remove the trash barrels to the dumpsters.

      . Football coaches before Yancey had routinely allowed the students to use their personal vehicles to carry the trash barrels to the dumpsters.

      . Nothing in the materials before us indicates whether this street runs through the school campus or whether it is off campus.

      . Hill testified in his affidavit that because a gate was kept locked the only possible way to access the dumpsters was to drive on the one-way street.

      . Coker also named as a defendant Messer’s grandfather, with whom Messer resided. The grandfather was later dismissed.

      . By the time Messer filed his answer and cross-claim, he had reached the age of majority.


source: Caselaw Access Project

author: PER CURIAM. MOORE, Judge,

license: Public Domain

text:
    James McCONICO, Jr. v. STATE of Alabama.
    2070554.
    Court of Civil Appeals of Alabama.
    Oct. 31, 2008.

      James McConico, Jr., pro se.
   PER CURIAM.

On March 2, 2007, James McConico, Jr., an inmate at the St. Clair Correctional Facility, filed a complaint in- the Jefferson Circuit Court against Prison Health Services, Inc. (“PHS”); Sidney Kaegebein and Angela Harris, who were both allegedly employed as nurses for PHS; and Kenneth Jones, the warden of the W.E. Donaldson Correctional Facility (hereinafter collectively referred to as “the defendants”). In his complaint, McConico alleged that PHS, Kaegebein, and Harris had committed “negligent and unprofessional” acts against him on December 29, 2006, when, while dispensing medication to McConico, Kaegebein and Harris had tried to force him to take a pill after it had fallen on the floor. McConico also alleged that Jones had violated his constitutional rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution.

On May 2, 2007, Jones moved to dismiss McConico’s complaint. In an affidavit attached to his motion to dismiss, Jones alleged, among other things, that McConi-co was not an inmate at the W.E. Donaldson Correctional Facility on December 29, 2006, and that McConico had been transferred to the St. Clair Correctional Facility in May 2006. On May 8, 2007, the Jefferson Circuit Court granted Jones’s motion to dismiss, but it gave McConico “leave to offer proof by affidavit that he was in fact incarcerated at [the] Donaldson Correctional Facility” on December 29, 2006. On June 26, 2007, the Jefferson Circuit Court, upon further review, entered an order setting aside the May 8, 2007, order of dismissal and transferring the case to the Montgomery Circuit Court (hereinafter “the trial court”).

On August 2, 2007, PHS filed a motion to quash service or, in the alternative, a motion to dismiss McConico’s claims against PHS. In its motion, PHS averred that neither Kaegebein nor Harris was an employee of PHS and that Kaegebein and Harris had not been properly served with process. PHS also sought the dismissal of McConico’s claims to the extent that the claims did not comply with § 6-5-551, Ala. Code 1975, of the Alabama Medical Liability Act.

On October 29, 2007, Jones filed a motion to dismiss or, in the alternative, a motion for a summary judgment in which he argued that he was entitled to immunity from McConico’s claims. On October 31, 2007, PHS filed a motion for a summary judgment and an answer to McConi-co’s complaint. In support of its summary-judgment motion, PHS attached the affidavit of Tim Whitaker, a nurse employed by PHS, in which Whitaker stated that Kaegebein and Harris were not employed by PHS. On November 7, 2007, the trial court entered an order setting the summary-judgment motions for a hearing to be held on December 3, 2007. The record does not reveal whether the trial court in fact held a hearing on December 3, 2007. On December 6, 2007, McConico filed a motion, pursuant to Rule 56(f), Ala. R. Civ. P., seeking additional time to respond to the summary-judgment motions; as a basis for his motion, McConico asserted that he was waiting on PHS to answer outstanding discovery requests.

On January 2, 2008, the trial court entered an order granting a “motion to dismiss” as to all claims and all defendants. On January 22, 2008, McConico filed a postjudgment motion. The trial court subsequently denied the postjudgment motion, and McConico timely appealed.

McConico raises three issues on appeal: (1) whether the trial court erred by “converting” PHS’s motion for a summary judgment to a motion to dismiss in its January 2, 2008, order while outstanding discovery remained pending; (2) whether the trial court erred by entering a summary judgment before he could complete discovery; and (3) whether the trial court erred in entering a summary judgment in favor of PHS.

McConico first contends that the trial court erred when it “converted” PHS’s motion for a summary judgment to a motion to dismiss while outstanding discovery remained pending. In support of his argument on appeal, McConico cites Phillips v. AmSouth Bank, 833 So.2d 29 (Ala.2002), in which our supreme court recognized that when a motion to dismiss is converted to a motion for a summary judgment, the nonmovant must be allowed time to conduct discovery. However, McConi-co’s reliance on Phillips is misplaced. In Phillips, the court addressed the conversion of a motion to dismiss to a motion for a summary judgment. In this case, McConico takes issue with the trial court’s purported conversion of a summary-judgment motion to a motion to dismiss. Furthermore, in Phillips, unlike this case, the nonmovant properly challenged before the trial court the conversion of the motion to dismiss. 833 So.2d at 32. Our review of the record on appeal reveals that McConi-co did not argue before the trial court that its conversion of PHS’s summary-judgment motion to a motion to dismiss was error. This court may review only those arguments presented to the trial court. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). Therefore, we will not address McConico’s argument as to this issue on appeal.

McConico takes the position on appeal that the trial court’s January 2, 2008, order amounted to a summary judgment in favor of the defendants. PHS filed a motion to dismiss on August 2, 2007, and a summary-judgment motion on October 31, 2007; because PHS submitted evidence in support of its motions, we agree that the motion to dismiss was converted to a summary-judgment motion. See American Trust Corp. v. Champion, 793 So.2d 811, 813 (Ala.Civ.App.2001) (“When a trial court considers matters outside the pleadings in ruling on a defendant’s motion to dismiss filed pursuant to Rule 12(b)(6), Ala. R. Civ. P., the motion is converted into a motion for a summary judgment.”). McConico argues on appeal that the trial court erred by entering a summary judgment for the defendants before he could complete discovery, in violation of Rule 56(f), Ala. R. Civ. P. Specifically, McConico contends that he had served PHS with discovery requests and that PHS had not responded to those discovery requests at the time PHS moved for a summary judgment. McConico states that the outstanding discovery requests were crucial in demonstrating that Kaegebein and Harris were in fact employees of PHS.

Rule 56(f), Ala. R. Civ. P., states, in pertinent part: “Should it appear from the affidavits of a party opposing the [summary-judgment] motion that the party cannot, for reasons stated, present by affidavit facts essential to justify the party’s opposition, the court may deny the motion for summary judgment or may order a continuance to permit ... discovery to be had -” “‘“[S]uch an affidavit should state with specificity why the opposing evidence is not presently available and should state, as specifically as possible, what future actions are contemplated to discover and present the opposing evidence.” ’ ” Fogarty v. Southworth, 953 So.2d 1225, 1229 (Ala.2006), quoting Scrushy v. Tucker, 955 So.2d 988, 1007 (Ala.2006), quoting in turn the Committee Comments to August 1, 1992, Amendment to Rule 56(c) and (f), Ala. R. Civ. P.

Whether to deny a motion for a summary judgment or to grant a continuance to allow discovery to proceed is a matter that rests within the discretion of the trial court. Fogarty v. Southworth, 953 So.2d at 1229. The pendency of outstanding discovery alone is not sufficient to bar the entry of a summary judgment. Id. If the party opposing the summary-judgment motion can show that the outstanding discovery is crucial to that party’s case, then it is error for the trial court to enter a summary judgment before the discovery is completed. Akpan v. Farmers Ins. Exch., Inc., 961 So.2d 865, 875 (Ala.Civ.App.2007). The burden is on the nonmov-ing party to show that the discovery to be completed is crucial. Id.

In order to meet its burden of proof, a party opposing a summary-judgment motion must do more than merely show that outstanding discovery “may be” crucial to their case.

“A mere ‘conelusory’ affidavit by the party opposing the summary-judgment motion will not support a claim that a summary judgment was improperly granted in light of pending discovery. Stallworth v. AmSouth Bank, 709 So.2d 458, 469 (Ala.1997). In Stallworth, the ‘conclusory’ affidavit ‘fail[ed] ... to identify what crucial evidence pertaining to his ... claim discovery might disclose.’ Id. In Wallace v. Brownell Pontiac-GMC Co., 703 F.2d 525 (11th Cir.1983), the United States Court of Appeals for the Eleventh Circuit annunciated a rule regarding the specificity of an affidavit, based on Rule 56(f), Fed.R.Civ.P., which is identical to our Rule 56(f). In Wallace, the Eleventh Circuit stated that the affiant seeking relief under Rule 56(f)
“ ‘ “may not simply rely on vague assertions that additional discovery will produce the needed, but unspecified, facts,” but rather he must specifically demonstrate “ ‘how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant’s showing of the absence of a genuine issue of [material] fact.’ ” ’
703 F.2d at 527 (quoting SEC v. Spence & Green Chem. Co., 612 F.2d 896, 901 (5th Cir.1980) (quoting in turn Willmar Poultry Co. v. Morton-Norwich Prods., Inc., 520 F.2d 289, 297 (8th Cir.1975))). Therefore, to be considered sufficient and not merely ‘conclusory,’ an affidavit in support of a continuance under Rule 56(f) must specifically state what items of outstanding discovery are crucial and why that discovery is essential to aid the nonmoving party in opposing the pending motion for a summary judgment.”

Fogarty v. Southworth, 953 So.2d at 1229-30.

The affidavit McConico attached to his Rule 56(f) motion stated, in its entirety:

“My name is James McConico, Jr. I am over the age of twenty-one and state that I cannot respond to [PHS’s summary-judgment motion] because they are in sole possession of the contract between them and the Alabama Dept, of Corrections. Without the answer to the discovery request I’ve serverd [sic] upon them, I cannot ‘Right of Control’ [sic] PHS has reversed [sic] over contract employees.
“I attest further I cannot serve nurses Sidney Kaegebein and Angela Harris because their addresses are in the sole possession of PHS.
“I finally attest that service of PHS was accomplished by certified mail to PHS home office in Brentwood, Tenn.”

McConico filed his affidavit in response to a summary-judgment motion filed by PHS. In support of its summary-judgment motion, PHS attached the affidavit of Tim Whitaker, a nurse employed by PHS. In his affidavit, Whitaker states that PHS contracts with the Alabama Department of Corrections to provide medical services to inmates. Whitaker further states in his affidavit that Kaegebein and Harris are not employed by PHS.

In his affidavit, McConico seeks a continuance in order to obtain from PHS the addresses of Kaegebein and Harris, both of whom PHS had already denied were in its employ. McConico speculates that, without PHS’s answers to discovery, he will not be able to determine the right of control that PHS has over its employees. However, as noted above, PHS denies that Kaegebein and Harris are its employees. McConico fails to indicate in his affidavit “ ‘ “ ‘how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant’s showing of the absence of a genuine issue of [material] fact.””” Fogarty v. Southworth, 953 So.2d at 1230, quoting Wallace v. Brownell Pontiac-GMC Co., 703 F.2d 525, 527 (11th Cir.1983). Therefore, the trial court did not err when it entered a summary judgment in favor of the defendants before PHS had responded to McConico’s outstanding discovery requests.

McConico also contends on appeal that the trial court erred by entering a summary judgment in favor of PHS. McConico does not address in his brief on appeal the propriety of the trial court’s judgment in favor of the other defendants. Therefore, any arguments pertaining to the trial court’s judgment in favor of the other defendants are waived, and the trial court’s judgment in favor of those defendants is affirmed. Chunn v. Whisenant, 877 So.2d 595, 601 (Ala.2003).

We now turn to McConico’s claims against PHS. This court reviews a summary judgment de novo. Ex parte Ballew, 771 So.2d 1040 (Ala.2000). A motion for a summary judgment is properly granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; Bussey v. John Deere Co., 531 So.2d 860 (Ala.1988). “When the mov-ant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present ‘substantial evidence’ creating a genuine issue of material fact.” Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999) (quoting Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989)). “Substantial evidence” is “evidence of such a 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 Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a summary judgment, this court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts concerning the existence of a genuine issue of material fact against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

It is undisputed that PHS did not employ Kaegebein and Harris as nurses. In support of its motion for a summary judgment, PHS submitted the affidavit of Tim Whitaker, an employee of PHS, who worked for PHS at the W.E. Donaldson Correctional Facility at the time of the alleged incident involving Kaegebein and Harris. Whitaker stated in his affidavit that Kaegebein and Harris were not PHS employees. The record indicates that McConico’s claims against PHS are based solely on the purported negligent actions of Kaegebein and Harris, whom McConico alleged in his complaint were employed as nurses by PHS at the time those negligent acts occurred. PHS made a prima facie showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law. McConico failed to present substantial evidence creating a genuine issue of material fact. Ex parte Alfa Mut. Gen. Ins. Co., supra. Therefore, the trial court did not err by entering a summary judgment in favor of PHS.

The judgment of the trial court in favor of the defendants is due to be affirmed.

AFFIRMED.

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

MOORE, J., concurs in part and dissents in part, with writing, which THOMAS, J., joins.

MOORE, Judge,

concurring in part and dissenting in part.

I concur in that part of the main opinion affirming the summary judgment entered in favor of Kenneth Jones. I respectfully dissent, however, from that part of the main opinion affirming the summary judgment entered in favor of Prison Health Services, Inc. (“PHS”). I believe that James McConico, Jr., met his burden of showing that the outstanding discovery that he had requested from PHS was crucial to his opposition to PHS’s motion for a summary judgment; thus, I conclude that the trial court erred by not allowing for the completion of the outstanding discovery before entering the summary judgment in favor of PHS.

THOMAS, J., concurs.

      . The Jefferson Circuit Court cited § 6-3-9, Ala.Code 1975, in its order setting aside the order of dismissal. That Code section provides, in pertinent part, that "[a]ll actions where the prison system or the state on account of the prison system is interested must be commenced in Montgomery County.”

      . Kaegebein and Harris had not been served with process when the trial court entered its January 2, 2008, order.


author: SHAW, Justice.

text:
    Ex parte James McCONICO, Jr. (In re James McConico, Jr. v. State of Alabama).
    1080231.
    Supreme Court of Alabama.
    Feb. 13, 2009.
    James McConico, Jr., pro se.
   SHAW, Justice.

The petition for the writ of certiorari is denied.

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

WRIT DENIED.

COBB, C.J., and WOODALL, SMITH, and PARKER, JJ., concur.


author: THOMAS, Judge.

text:
    D.L.L. II v. B.J. and R.S.J.
    2070891.
    Court of Civil Appeals of Alabama.
    Nov. 7, 2008.

      L. Bratton Rainey III, Mark A. Dowdy, and S. Gaillard Ladd of Luther, Oldenburg & Rainey, P.C., Mobile, for appellant.
    Oliver J. Latour, Jr., Foley; and Frank T. Hollon, Robertsdale, for appellees.
   THOMAS, Judge.

D.L.L. II (“the father”) appeals from the judgment of the Baldwin Juvenile Court denying his motion for relief from judgment filed pursuant to Rule 60(b)(4), Ala. R. Civ. P. This is the second time that this case has come before this court. See D.L.L. II v. B.J., 995 So.2d 170 (Ala.Civ.App.2008) (“D.L.L. I”). In D.L.L. I, this court dismissed the father’s untimely appeal of a judgment awarding custody of his minor child to the child’s maternal grandparents. D.L.L. I, 995 So.2d at 172.

In D.L.L. I, this court said:

“The maternal grandparents filed a ‘petition for custody’ and an ‘emergency petition for custody’ in the juvenile court. The ‘petition for custody1 alleged that the child’s mother, who had been the child’s primary caregiver, had died ... and that the father was in a drug-rehabilitation program. Further, the petition alleged that the father had a history of drug use, had never been the primary caregiver of the child, had failed to support the child, and had been violent in the home. ...
“The juvenile court ultimately held a hearing on June 26, 2007, at which it heard disputed, oral testimony and admitted several exhibits. On July 25, 2007, the juvenile court entered a judgment awarding the maternal grandparents custody of the child, subject to supervised visitation by the father. On August 7, 2007, the father timely filed a postjudgment motion. That post-judgment motion was denied by operation of law on August 21, 2007. See Rule 1(B), Ala. R. Juv. P. Although the juvenile court purported to enter an order altering its previous judgment on August 24, 2007, it did not have jurisdiction to enter that order. Id.; D.V.P. v. T.W.P., 905 So.2d 853, 856 (Ala.Civ.App.2005). After the father’s postjudgment motion was denied by operation of law, the father had 14 days (until September 4, 2007) to file his notice of appeal. The father’s September 5, 2007, notice of appeal is untimely; therefore, we dismiss the appeal. Holmes v. Powell, 363 So.2d 760, 762 (Ala.1978) (‘A timely filing of the notice of appeal is jurisdictional, ... the sanction to be applied for an untimely filing being dismissal’); M.M. v. L.L., [989 So.2d 528 (Ala.Civ.App.2007)]; and F.G. v. State Dep’t of Human Res., [988 So.2d 555 (Ala.Civ.App.2007) ].”

995 So.2d at 171-72.

On March 2, 2008, while the appeal in D.L.L. I was still pending, the father moved this court for leave to file a 60(b) motion in the juvenile court. See Rule 60(b), Ala. R. Civ. P. This court granted the father’s motion on March 20, 2008.

The father’s Rule 60(b) motion sought relief from the August 24, 2007, post-judgment order, as well as relief from the July 25, 2007, judgment. First, the father’s motion moved the juvenile court to set aside its August 24, 2007, post-judgment order and to enter a separate judgment containing specific findings of facts and conclusions of law. Second, the father’s motion moved the juvenile court to set aside its July 25, 2007, judgment for failing to include specific findings of fact and conclusions of law.

On June 17, 2008, the juvenile court denied the father’s Rule 60(b) motion. The father timely appealed.

This court has stated:

“‘The standard of review on appeal from the denial of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process. Satterfield v. Winston Industries, Inc., 553 So.2d 61 (Ala.1989).’ ”

J.L.E. v. T.L.S., 880 So.2d 1159, 1162 (Ala.Civ.App.2003)(quoting Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991)).

In D.L.L. I, this court held that the juvenile court did not have jurisdiction to enter the August 24, 2007, postjudgment order. 995 So.2d at 172. Thus, that judgment was void.

The juvenile court erred in failing to set aside its August 24, 2007, postjudgment order. See J.L.E. v. T.L.S., supra; Milloy v. Woods, [Ms. 2070514, Oct. 3, 2008] (Ala.Civ.App.2008). Therefore, we reverse the juvenile court’s judgment insofar as it failed to set aside the August 24, 2007, postjudgment order, and we remand the cause with instructions that the August 24, 2007, void order be set aside.

The father also argues on appeal that, for several reasons, the July 25, 2007, judgment is due to be set aside. However, the father does not argue that the July 25, 2007, judgment is void. This court has stated:

“It is important to note that a judgment is not void simply because it is erroneous, because Rule 60(b) is not intended as a substitute for appeal. R.J. Reynolds Tobacco Co. v. Cantley, 717 So.2d 751 (Ala.1998). An appeal from the denial of a Rule 60(b) motion does not bring the underlying judgment up for review, but presents only the question of propriety of the judgment denying the Rule 60(b) motion. Sanders v. Blue Cross-Blue Shield of Alabama, Inc., 368 So.2d 8 (Ala.1979).”

Bryant v. First Tuskegee Bank, 866 So.2d 1139, 1143 (Ala.Civ.App.2002), overruled on other grounds, Ex parte Full Circle Distrib., LLC, 883 So.2d 638 (Ala.2003).

The juvenile court did not err in denying the father’s Rule 60(b) motion with regard to the juvenile court’s July 25, 2007, judgment. Accordingly, we affirm the juvenile court’s judgment insofar as it denies the father’s Rule 60(b) motion with regard to the July 25, 2007, judgment.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

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

      . Rule 60(b), Ala. R. Civ. P., provides: "If leave of the appellate court is obtained, the motion shall be deemed to have been made in the trial court as of the date upon which leave to make the motion was sought in the appellate court."

       Note from the reporter of decisions: On February 13, 2009, the Alabama Court of Civil Appeals withdrew the October 3, 2008, opinion in Milloy and substituted another one.


text:
    M.P. v.C.P.
    2070644.
    Court of Civil Appeals of Alabama.
    Nov. 7, 2008.

      Bennett H. Webb, Talladega, for appellant.
   THOMAS, Judge.

M.P. (“the father”) and C.P. (“the mother”) are the married parents of A.D.P and A.N.P. The parents separated sometime in 2005. In 2006, the mother had the children with her in Tennessee; in October 2006 the father took the children from school and returned to Arkansas with them. The father later moved to Sylacau-ga, Alabama, with the children. The mother attempted to retrieve the children, and the father filed petitions for their custody in the Talladega Juvenile Court on November 7, 2007. In the petitions for custody, the father did not allege that the parties were married; regarding the children, the petitions alleged that the children’s custody was in dispute and that the father feared for the children’s safety if the children were in the mother’s custody because the mother “is unable to discharge her responsibilities as a parent, because of her faults and habits.”

The juvenile court awarded pendente lite custody of the children to the father, ordered home studies of the parties, and set the case for a trial. At some point, the juvenile court was informed that a divorce action between the parties was pending in the Talladega Circuit Court. The juvenile court stated on the record at least three times during the trial that it was inclined to dismiss the petitions because a circuit court should handle the custody dispute between the parties along with the parties’ divorce action. However, the juvenile court ultimately stated on the record that it would award the parties joint legal custody and award the mother physical custody through May 2008. The actual judgment states that the parties are married and that a divorce action is pending, denies the father’s custody petitions, and orders that the mother retain physical custody subject to the father’s visitation.

The father filed his notice of appeal on March 4, 2008, before the juvenile court entered its written judgment; as provided by Rule 4(a)(4), Ala. R.App. P., the appeal was held in abeyance until the entry of the judgment on March 18, 2008. The father also filed a postjudgment motion after the entry of the judgment, which further required that the appeal be held in abeyance until that motion was decided, as provided by Rule 4(a)(5), Ala. R.App. P. The father argues on appeal that the juvenile court lacked jurisdiction to award custody of the children to the mother because the juvenile court made no finding of dependency regarding the children and because there was no evidence demonstrating dependency. The mother did not favor this court with a brief.

The juvenile court is a court of limited jurisdiction, having exclusive jurisdiction over actions based on allegations that a child is dependent, delinquent, or in need of supervision. Ala.Code 1975, § 12-15-30(a). The juvenile court has jurisdiction over a custody dispute involving a child only when that child is otherwise properly before the court. Ala.Code 1975, § 12 — 15—30(b)(1). “[W]hen a circuit court acquires jurisdiction over the issue of child custody pursuant to a divorce action, it thereafter retains jurisdiction over that issue to the exclusion of the juvenile court.” Ex parte K.S.G., 645 So.2d 297, 299 (Ala.Civ.App.1992). There are but two exceptions to the rule that the juvenile court cannot exercise jurisdiction over a child once the circuit court has acquired jurisdiction: “when there are emergency circumstances which threaten the immediate welfare of the child” or when a separate dependency action is instituted. Ex parte K.S.G., 645 So.2d at 299-300.

The juvenile court was informed that a divorce action between these two married parents was pending in the Talladega Circuit Court. Although it indicated on three separate occasions in the record that it was inclined to dismiss the father’s petitions because the custody issue would be more properly considered as a part of a divorce action, the juvenile court failed to dismiss the father’s petitions. Because these parties were married, because a divorce action was pending in the Talladega Circuit Court, and because none of the allegations in the petitions indicated that the children were in any present danger or that an emergency situation requiring the immediate intervention of the juvenile court existed, the juvenile court was without jurisdiction to enter a judgment in this case. K.R. v. D.H., 988 So.2d 1050, 1052-53 (Ala.Civ.App.2008); S.B.U. v. D.G.B., 913 So.2d 452, 455-56 (Ala.Civ.App.2005). Because the juvenile court lacked jurisdiction in the present case, its judgment is void. K.R., 988 So.2d at 1053; S.B.U., 913 So.2d at 456. A void judgment will not support an appeal; therefore, we dismiss the father’s appeal. K.R., 988 So.2d at 1053; S.B.U., 913 So.2d at 456.

APPEAL DISMISSED.

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

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


text:
    Barry L. WILLIAMS v. John LOLLAR and Jeanie Lollar.
    2070282.
    Court of Civil Appeals of Alabama.
    Nov. 7, 2008.
    Henry L. Penick of H.L. Penick & Associates, P.C., Birmingham, for appellant.
    James D. Turner of Turner & Turner, P.C., Tuscaloosa, for appellees.
   THOMAS, Judge.

This appeal arises from the contest of the will of Hazel Cole Francis by her next of kin, John Lollar and Jeanie Lollar (sometimes hereinafter collectively referred to as the “Lollars”). Leo L. Williams (“Leo”) was the proponent of the will and sought to have the will probated in the Jefferson County Probate Court (“the probate court”). During the pendency of the probate proceedings, Leo died intestate, and his son, Barry L. Williams (“Williams”), was substituted as the proponent of the will in his capacity as the personal representative of his father’s estate. In the probate court, the Lollars successfully contested the will. Williams appealed to the Jefferson Circuit Court (“the circuit court”). The circuit court affirmed the judgment of the probate court, and this appeal followed.

Procedural History

On April 27, 2004, Leo filed a petition to probate the will of Hazel Cole Francis in the probate court. That petition named the Lollars, a niece and a nephew of Francis, as Francis’s next of kin. On July 13, 2004, the Lollars filed a petition to contest Francis’s will, asserting, among other things, that Leo had exercised undue influence upon Francis in procuring the will. On August 9, 2004, Leo answered and denied the material allegations of the Lol-lars’ petition. Leo died intestate on February 13, 2005. On March 10, 2005, Williams, Leo’s son and the personal representative of Leo’s estate, moved the probate court to substitute him as the proponent of Francis’s will. On July 21, 2005, the probate court substituted Williams, in his capacity as personal representative of Leo’s estate, as the proponent of Francis’s will.

On December 30, 2005, the probate court entered a judgment denying the petition to probate Francis’s will. After hearing ore tenus testimony and admitting documentary evidence, the probate court concluded that Leo had exercised undue influence over Francis and had compelled her to execute her will and leave to him substantially all of her estate.

On January 30, 2006, 31 days after the entry of the probate court’s judgment, Williams timely filed a postjudgment motion. See Rule 59, Ala. R. Civ. P. That motion alleged that the probate court’s conclusion that there was a confidential relationship between Leo and Francis was contrary to the law because the probate court did not identify the specific facts that constituted the confidential relationship. The motion also alleges that the probate court erred because there was insufficient evidence indicating that Leo had exercised undue influence over Francis. Williams’s postjudgment motion was denied by operation of law on May 1, 2006. See Rule 59.1, Ala. R. Civ. P.

On June 20, 2006, after Williams’s post-judgment motion had been denied by operation of law, the probate court purported to deny Williams’s postjudgment motion. On July 26, 2006, Williams filed a notice of appeal to the circuit court. On September 11, 2006, the probate court certified the record of its proceedings to the circuit court.

On July 6, 2007, Williams moved the circuit court to enter a summary judgment in his favor. On July 9, 2007, the Lollars filed a motion to dismiss the appeal based upon § 12-22-21(2), Ala.Code 1975. On July 11, 2007, the Lollars amended then-motion to dismiss the appeal, arguing that Williams’s notice of appeal had been untimely filed pursuant to § 12-22-21(1), Ala.Code 1975, which provides a 42-day period for filing a notice of appeal to the circuit court from a “judgment or order on a contest as to the validity of a will.” The Lollars further argued that, even if Williams’s postjudgment motion had operated to extend the time for filing his notice of an appeal, his notice of appeal was still untimely. Williams’s postjudgment motion was denied by operation of law on May 1, 2006; therefore, Monday, June 12, 2006, was the last day for Williams to file an effective notice of appeal. Williams did not file his notice of appeal until July 26, 2006. The circuit court denied Williams’s motion for a summary judgment and denied the Lollars’ motion to dismiss and their amended motion to dismiss.

On October 24, 2007, the circuit court entered a judgment affirming the judgment of the probate court. On December 3, 2007, Williams appealed to the supreme court. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

Analysis

In McGallagher v. Estate of DeGeer, 934 So.2d 391, 399 n. 2 (Ala.Civ.App.2005), this court noted:

“Rules 59, 59.1, and 60 of the Alabama Rules of Civil Procedure apply in probate court proceedings pursuant to § 12-13-12, Ala.Code 1975. See Reneke v. Reneke, 897 So.2d 1101, 1106 (Ala.Civ.App.2003); and In re Morrison, 388 So.2d 1014, 1015 (Ala.Civ.App.1980).”

Section 12-22-21(1), Ala.Code 1975, provides:

“Appeal from the order, judgment or decree of the probate court may be taken by the party aggrieved to the circuit court or Supreme Court in the cases hereinafter specified. Appeals to the Supreme Court shall be governed by the Alabama Rules of Appellate Procedure, including the time for taking an appeal. Appeal to the circuit court in such cases shall be within the time hereinafter specified:
“(1) From the decree, judgment or order on a contest as to the validity of a will, to be taken within 42 days after the determination of the contest.”

The timely filing of a notice of appeal is a jurisdictional act. Kennedy v. Merriman, 963 So.2d 86, 88 (Ala.Civ.App.2007) (quoting Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985)). “[A]n untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived.” Parker v. Parker, 946 So.2d 480, 485 (Ala.Civ.App.2006).

The last day that Williams could have filed an effective notice of appeal from the probate court’s judgment was June 12, 2006. Williams did not file his notice of appeal until July 26, 2006. Because Williams did not timely file his notice of appeal, the circuit court lacked subject-matter jurisdiction to review the case, and its judgment affirming the probate court’s judgment is void. Flannigan v. Jordan, 871 So.2d 767, 770 (Ala.2003); and Lovette v. Springer, 444 So.2d 850, 851 (Ala.1984). Therefore, the appeal to this court from a void judgment is due to be dismissed. Lo-vette v. Springer, supra.

APPEAL DISMISSED.

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

      . January 29, 2006, the 30th day after the filing of the postjudgment motion, was a Sunday. Thus, the motion was timely filed on "the next day which is not a Saturday, a Sunday, or a legal holiday,” i.e., Monday, January 30, 2006. See Rule 6(a), Ala. R. Civ. P.

      . April 30, 2006, the 90th day after the filing of the postjudgment motion, was a Sunday. Therefore, the motion was deemed denied on May 1, 2006, which was the following Monday. See Richburg v. Cromwell, 428 So.2d 621 (Ala.1983), and First Alabama Bank v. McGowan, 758 So.2d 1116 (Ala.Civ.App.2000).

      . Although it is inapplicable to the present appeal, § 12-22-21(2), Ala.Code 1975, provides:
      "Appeal from the order, judgment or decree of the probate court may be taken by the party aggrieved to the circuit court or Supreme Court in the cases hereinafter specified. Appeals to the Supreme Court shall be governed by the Alabama Rules of Appellate Procedure, including the time for taking an appeal. Appeal to the circuit court in such cases shall be within the time hereinafter specified:

      "(2) From the decree, judgment or order on an application claiming the right to execute a will or administer an estate, to be taken within 42 days after the hearing and decision of such application, unless the application was denied because the applicant was deemed unfit to serve by reason of a conviction of an infamous crime or by reason of improvidence, intemperance or want of understanding, in which case the appeal must be taken within seven days from the denial of the application.”


author: THOMPSON, Presiding Judge.

text:
    L.A.C. v. T.S.C. and St. Clair County Department of Human Resources.
    2070313.
    Court of Civil Appeals of Alabama.
    Nov. 7, 2008.
    S.Philip Bahakel and Donna J. Beaulieu of S. Philip Bahakel & Associates, Pelham, for appellant.
   THOMPSON, Presiding Judge.

L.A.C. (“the mother”) and T.S.C. (“the father”) were married on December 5, 1998. Two children were born of the parties’ marriage; the children had not yet reached the age of majority at the time of the final hearing in this matter. On August 23, 2007, the mother filed a complaint in the St. Clair Circuit Court (“the circuit court”) seeking, among other things, a divorce from the father and custody of the parties’ minor children. The father answered on September 13, 2007, and he counterclaimed for a divorce. The father also sought custody of the parties’ two minor children.

On September 13, 2007, the father filed a motion for a temporary restraining order and a petition for pendente lite relief. The father requested that the circuit court enter an order preventing the mother from, among other things, harassing or intimidating him or committing acts of violence towards him, and he requested that the circuit court award him custody of the children. On September 14, 2007, the mother filed a petition for protection from abuse against the father based on, among other things, the father’s alleged threats to injure her and her belief that the father might remove the children from the state. The circuit court subsequently entered an ex parte protection order protecting the mother from the father.

On November 2, 2007, the circuit court conducted a hearing in the parties’ divorce action to resolve the issue of custody of the children. The record does not indicate whether the November 2, 2007, hearing was intended to resolve the issue of pen-dente lite custody of the children or whether it was intended to result in a final determination regarding custody of the children. While on the record, the circuit court expressed concern for the safety of the children, and it ordered from the bench that the St. Clair County Department of Human Resources (“DHR”) take custody of the children. The record reveals that the circuit court took issue with the mother’s living with a married man. The circuit court also expressed concern that the father might be abusing the prescription drug Xanax because of a positive drug test on November 2, 2007, and erratic behavior on the date of the hearing. The children were subsequently removed from the mother’s and the father’s custody. The circuit court did not enter a written order at that time.

After it orally ordered the children in DHR’s custody, the circuit court did not enter an order in the record pursuant to Rule 58, Ala. R. Civ. P. The record reveals that the mother did not request that the circuit court enter an order pursuant to Rule 58 or file a petition for a writ of mandamus challenging the circuit court’s decision to remove the children from the parties’ custody.

On November 21, 2007, T.C. and B.C., the children’s paternal grandparents, petitioned the circuit court seeking to intervene in the divorce action. In their petition, the paternal grandparents alleged that the parties’ children were in DHR custody and that DHR had temporarily placed the children in their home. On November 21, 2007, the paternal grandparents also filed a petition for modification of custody, visitation, and support, asking, among other things, that the circuit court award them temporary custody of the children and order the parties to pay child support for the benefit of the children. On November 29, 2007, the circuit court granted the paternal grandparents’ petition to intervene in the divorce action.

On November 21, 2007, the mother filed a petition for a writ of habeas corpus in the divorce action requesting that the children be returned to her custody. In her habeas petition, the mother contended, among other things, that the circuit court had not complied with § 12-15-60 and § 12-15-153, Ala.Code 1975, because it had failed to conduct a hearing within 72 hours after removing the children from her custody. Both § 12-15-60(a) and § 12-15-153 require a trial court to hold a hearing within 72 hours when a child is summarily removed from parental custody. K.S. v. G.A.B., 911 So.2d 1085, 1097 (Ala.Civ.App.2005). On December 20, 2007, the circuit court denied the mother’s habeas petition.

On November 26, 2007, M.S., the children’s maternal grandmother, filed dependency petitions in the St. Clair Juvenile Court (“the juvenile court”) alleging that the children were dependent, thereby invoking the jurisdiction of the juvenile court. See § 12-15-30(a) and (b)(1), Ala. Code 1975 (a juvenile court has original jurisdiction in proceedings in which a child is alleged to be dependent and in proceedings to determine the custody of a child who is otherwise before the juvenile court). The dependency petitions were assigned case numbers JU-07-613 and JU-07-614. The record reveals that the same trial judge who presided over the divorce proceedings in the circuit court also presided over the dependency proceedings in the juvenile court.

On December 4, 2007, DHR filed a dependency petition in the juvenile court proceeding that had been initiated by the maternal grandmother, alleging that the children were in the care of DHR at that time due to their dependency. DHR requested, among other things, that the juvenile court declare the children to be dependent, award DHR temporary legal custody of the children, and conduct a 72-hour hearing on the petition. DHR included on the face of its dependency petition the case number assigned to the divorce action and the case numbers assigned to the pending juvenile actions.

On December 6, 2007, the trial judge, then sitting as a juvenile court judge, entered an order in the dependency proceedings finding the children to be dependent, finding “it would be in the best interest of [the] minor children for the legal custody of the minor children to be vested with ... DHR with discretion in planning and placement,” and setting the matter for a hearing to be held on December 20, 2007. The juvenile court appointed a guardian ad litem for the minor children for the first time at that point in the proceedings. The December 6, 2007, order of the juvenile court was the only adjudication of dependency in this matter.

On December 17, 2007, the mother filed in the circuit court a postjudgment motion in which she purported to challenge the December 6, 2007, dependency order entered in the juvenile proceedings. On December 19, 2007, the children’s maternal grandmother filed a motion in the circuit court to consolidate the two dependency actions pending in the juvenile court with the divorce action. On December 20, 2007, the maternal grandmother filed a motion in the circuit court to intervene in the divorce action. The trial judge, on December 20, 2007, granted the maternal grandmother’s motion to intervene and the motion to consolidate the juvenile proceedings and the divorce action. Hereinafter, we refer to the trial judge, whether acting in his capacity as the circuit court judge or in his capacity as the juvenile court judge in these consolidated proceedings, as “the trial court.”

Also, on December 20, 2007, the trial court denied the mother’s postjudgment motion; at that point, the actions had been consolidated. The trial court also entered an order on December 20, 2007, requiring DHR to conduct home studies of the parents’ respective homes, as well as of the homes of the paternal grandparents and the maternal grandmother, and awarding the father and the mother visitation with the children. On January 3, 2008, the mother timely filed a notice of appeal.

As an initial matter, we note that several of the issues raised by the mother on appeal challenge the trial court’s authority with regard to its removal of custody of the children from the mother at the November 2, 2007, hearing. The mother contends, in one part of her brief submitted to this court, as she did in her petition for writ of habeas corpus, that the trial court erred by removing the children from her custody without notice, without entering a written order, and -without conducting a hearing as required by §§ 12-15-151 through -153, Ala.Code 1975, and § 12-15-60(a), Ala.Code 1975. Given the nature of the mother’s arguments pertaining to the November 2, 2007, removal of the children from her custody, we have elected to construe that part of her brief asserting those arguments as a challenge to the trial court’s December 20, 2007, denial of her petition for a writ of habeas corpus; we treat those arguments as seeking review by a petition for a writ of mandamus. See Johnston v. Johnston, 440 So.2d 1112 (Ala.Civ.App.1983) (the denial of a writ of habe-as corpus is interlocutory in nature and is renewable by a petition for a writ of mandamus); see also Fowler v. Merkle, 564 So.2d 960 (Ala.Civ.App.1990) (an appellate court has discretion to treat an appeal as a petition for a writ of mandamus).

The record before this court reveals that at the time the trial court removed the children from the mother’s custody at the conclusion of the November 2, 2007, hearing, no allegations of dependency had been made by any one. The trial court made no express finding at that time that the mother was unfit to have custody of the children. In order for a trial court to award custody to a nonparent, it must make an express determination that the parent is unfit. Ex parte Terry, 494 So.2d 628 (Ala.1986). In Serio v. Serio, 3 So.3d 937 (Ala.Civ.App.2008), this court reversed a trial court’s judgment awarding custody to a nonparent based on its failure to make an express determination of unfitness, stating:

“[T]he trial court did not make an express determination that the father was unfit or refer to the standard set out in Ex parte Terry, 494 So.2d at 632, in its judgment. This court has held that “when a trial court awards custody to a nonparent in a contest with a parent, the trial court must make an express finding of unfitness.’ Lawrence v. Cannon, 998 So.2d 1070, 1072 (Ala.Civ.App.2008)(citing C.P. v. W.M., 806 So.2d 395, 398 (Ala.Civ.App.2001)). The trial court’s judgment is, therefore, reversed based on the trial court’s failure to make an express determination of unfitness pursuant to Ex parte Terry and its progeny.”

Serio v. Serio, 3 So.3d at 939.

In this case, the trial court erred when it made no express finding that the parents were unfit before awarding custody of the children to DHR at the conclusion of the November 2, 2007, hearing. Furthermore, our review of the evidence in the record before this court reveals that, had the trial court indeed determined that the mother was unfit, that finding would not be supported by clear and convincing evidence. See Ex parte Berryhill, 410 So.2d 416 (Ala.1982) (a finding of unfitness must be supported by clear and convincing evidence). We address the lack of clear and convincing evidence in the record later in this opinion.

The trial court further erred when it failed to enter a written order and failed to conduct a 72-hour hearing following the removal of the children from the mother’s custody. See § 12-15-151, Ala.Code 1975 (“A protection ... order may be entered after notice and hearing, upon proper showing ... that such an order is necessary to protect the health or safety of the child or is otherwise in the child’s best interest.”). In this case, 34 days passed from the day the trial court removed the children from the mother’s custody to the day that the trial court entered an order finding the children dependent. During those 34 days, the children were in the custody of DHR based on a directive of the trial court that had not been formally entered on the record. The trial court waited to make a determination of dependency until prompted to do so by the filing of dependency petitions by the maternal grandmother and DHR. We conclude that the trial court erred by removing the children from the mother’s and the father’s custody without entering a written order or conducting a hearing. In light of the foregoing, we issue a writ of mandamus directing the trial court to vacate its denial of the mother’s petition for habeas corpus and direct the trial court to grant that motion.

We now turn to the arguments presented for review by appeal. The mother contends that the December 6, 2007, judgment finding the children to be dependent is due to be reversed because, she argues, the evidence does not support a finding of dependency. Specifically, the mother argues that the trial court erred by basing its finding of dependency on her relationship with a married man when the evidence did not demonstrate that her relationship with the married man adversely affected the parties’ children. DHR has not filed a brief in response to the arguments presented by the mother on appeal.

In its December 6, 2007, judgment finding the children to be dependent, the trial court, referring to testimony offered at the November 2, 2007, hearing, found, in pertinent part, as follows:

“In testimony, the mother admitted to living with a man not her husband, with the children in the home. The mother showed a total disregard for the court in her own testimony. The court, having serious concerns regarding the living conditions and the environment [of] the children, ordered the children removed from the home of the mother due to the actions and non actions of the mother and additional concerns over the [father’s] mental stability. Further, the court found to allow the children to remain in the home of the [mother] or to place the children with the [father] at this time would be contrary to the welfare of the children and that removal from both parents is in the best interest of the children.”

Our standard of review of dependency determinations is well settled.

“A finding of dependency must be supported by clear and convincing evidence. § 12-15-65(f)[, Ala.Code 1975]; M.M.S. v. D.W., 735 So.2d 1230, 1233 (Ala.Civ.App.1999). However, matters of dependency are within the sound discretion of the trial court, and a trial court’s ruling on a dependency action in which evidence is presented ore tenus will not be reversed absent a showing that the ruling was plainly and palpably wrong. R.G. v. Calhoun County Dep’t of Human Res., 716 So.2d 219 (Ala.Civ.App.1998); G.C. v. G.D., 712 So.2d 1091 (Ala.Civ.App.1997); and J.M. v. State Dep’t of Human Res., 686 So.2d 1258 (Ala.Civ.App.1996).”

J.S.M. v. P.J., 902 So.2d 89, 95 (Ala.Civ.App.2004). This court has stated that clear and convincing evidence is

“ ‘[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.’
“§ 6-11-20[ (b) ](4), Ala.Code 1975.”

L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002).

The dependency statute defines, in part, a “dependent child” as a child

“c. Whose custody is the subject of controversy; or
“f. Who is in a condition or surroundings or is under improper or insufficient guardianship or control as to endanger the morals, health, or general welfare of the child; or
“m. Who for any other cause is in need of the care and protection of the state.”

§ 12-15-1(10), Ala.Code 1975.

The testimony presented to the trial court at the November 2, 2007, hearing revealed the following pertinent facts. The mother and the father were married for eight years before separating. After the mother and the father separated but while they were still married, the mother began a romantic relationship with G.H. Following the mother and father’s separation, the mother and the children moved out of the marital home and lived with the maternal grandmother in a two-bedroom house. Approximately two to three weeks later, G.H. began living in the maternal grandmother’s house with the mother and the children. G.H. had separated from his wife at the time he began living with the mother and the children. When asked about how her relationship with G.H. might affect the children, the mother testified that she did not believe it would have any detrimental effects on the children so long as the children did not “realize the circumstances.” The father testified that G.H., whose employer had conducted a background check on him, did not have a “bad background.”

S.H., G.H.’s wife, testified that there was nothing in G.H.’s background that would justify preventing G.H. from spending time with the children. S.H. described G.H. as a “good person” who was “good to kids.” S.H. testified that there was no reason that anyone should have trouble with G.H. raising their children.

The father testified that, after G.H. moved into the maternal grandmother’s house, the children were forced to sleep in a “closed-in” porch that he said formerly housed large dogs. According to the father, the children slept on air mattresses. The mother testified that the porch at the maternal grandmother’s house had been converted into a bedroom with improvements that included new floors, new paint, and new air ducts that were installed before the children slept in the room.

At the time of the November 2, 2007, hearing, the mother had moved out of the maternal grandmother’s house and was living with G.H. and the children in a three-bedroom house owned by the mother’s grandparents. The record contains no evidence regarding the condition of the house the mother lived in at the time of the November 2, 2007, hearing. The children were ages eight and six at the time of the hearing. The mother testified that the children’s performance at school was excellent. According to the mother, the children were making almost straight A’s on their report cards.

The trial court heard conflicting testimony regarding the father’s drug use. The father explained that he had been diagnosed with post-traumatic stress disorder (“PTSD”) in 1997 after serving with the United States Navy. The father stated at the hearing that he no longer suffered from PTSD. At the time of the hearing, the father was taking Xanax and azithro-mycin prescribed for him by his treating physician; the father explained that he used those prescription medications to help him sleep and because his “nerves have been tore up” from the mother’s leaving him and filing for a divorce. According to the father, he had been prescribed the medication two weeks before the November 2, 2007, hearing.

The father admitted that he had smoked marijuana in the past, and he testified that the mother had also smoked marijuana in the past. Both the father and the mother testified that they had not smoked marijuana in years. The trial court ordered the father and the mother to submit to drug tests during the November 2, 2007, hearing. The results of the mother’s drug test were negative, and the results of the father’s drug test revealed that he was positive for benzodiazepines.

In this case, the trial court based its dependency determination, in large part, on the living conditions to which the children were exposed by the mother’s adulterous relationship with G.H. Regarding the living conditions that the children were exposed to, the evidence revealed that, immediately following the mother and father’s separation, the children slept in an enclosed porch that had been converted into a bedroom at the maternal grandmother’s house. At the time of the November 2, 2007, hearing, the mother and the children were no longer living with the maternal grandmother; instead, they were living in a three-bedroom house owned by the mother’s grandparents. The record contains no evidence regarding the condition of the mother’s new house.

With regard to the mother’s relationship with G.H., it is undisputed that the mother and G.H. lived together in the same house as the children at the time of the November 2, 2007, hearing. Although we do not condone the mother’s decision to live with a married man in the same house with the children, the mother’s choice to do so does not, in and of itself, support a finding of dependency. We also note that the maternal grandmother’s pleadings allege that G.H. had moved out of the mother’s house before any dependency petitions were filed in the trial court and, consequently, before the trial court entered its judgment finding the children dependent.

In V.W. v. G.W., 990 So.2d 414 (Ala.Civ.App.2008), the father in that case filed a “Petition for Custody” alleging, among other things, that the mother in that case had associated with drug users and that police had “raided” the mother’s house while the parties’ child was present in search of illegal drugs. 990 So.2d at 415. In response to the father’s petition, the juvenile court in V.W. v. G.W. awarded the father pendente lite custody of the child. Following a hearing, the juvenile court found the child dependent, removed the child from the mother’s custody, and awarded custody of the child to the father. The mother appealed, arguing that the juvenile court’s judgment of dependency was contrary to § 12-15-1(10), Ala.Code 1975. 990 So.2d at 415-16. At a hearing before the juvenile court, the father had expressed concern about the mother’s going to nightclubs and consuming alcoholic beverages and about the people that he knew the mother had had around her. The father explained that his decision to seek custody of the child stemmed from his observations of K.W., a male acquaintance of the mother’s, who appeared to be cohabiting with the mother and the child. 990 So.2d at 416. The father also testified to having been informed of a police search for illicit drugs in the mother’s residence. The mother admitted that the police had conducted a search of her residence, but she denied that it was related to illegal drugs. The mother further admitted that she had had a relationship with K.W., but she testified that she had had no contact with that man since the juvenile court had awarded the father pendente lite custody of the child. V.W. v. G.W., supra.

Based on the evidence presented to the juvenile court in V.W. v. G.W., this court reversed the finding of dependency, stating:

“Under the circumstances of this case, after a review of the evidence in the record, we are constrained to agree with the mother that the child’s dependency was not demonstrated under Alabama law so as to support the juvenile court’s adjudication and disposition of the child. The record lacks evidence tending to show, as the father contends, that under the mother’s care the child’s ‘morals, health, or general welfare’ would be in any current danger or that the mother has failed to provide proper care or guardianship .... ”

V.W. v. G.W., 990 So.2d at 417. In reversing the juvenile court’s judgment, this court noted that the “emergency” basis for the father’s custody petition stemmed almost exclusively from the mother’s previous relationship with K.W., and we recognized that “ ‘in order to make a disposition of a child in the context of a dependency proceeding, the child must in fact be dependent at the time of the disposition.’ V.W. v. G.W., 990 So.2d at 417 (quoting K.B. v. Cleburne County Dep’t of Human Res., 897 So.2d 879, 389 (Ala.Civ.App.2004) (Murdock, J., concurring in the result)).

In this case, the maternal grandmother and DHR failed to present clear and convincing evidence indicating that the children were dependent as alleged in their respective dependency petitions. The maternal grandmother and DHR, as petitioners in the dependency proceedings, were required to present clear and convincing evidence of dependency. Ex parte Floyd, 550 So.2d 982 (Ala.1989). In its December 6, 2007, dependency order, the trial court relied solely on evidence presented at the November 2, 2007, hearing to find the children dependent. The evidence presented at that hearing revealed that the mother was involved in a romantic relationship with G.H. and that the children were aware of that relationship. However, the evidence presented to the trial court did not reveal if or how the mother’s relationship with G.H. adversely impacted the lives of the children. Testimony elicited from the father and S.H. revealed that G.H. did not have a criminal background and that he was good with children. Further, there was no evidence presented that called into question the mother’s parenting skills or her ability to parent the children.

Given the evidence presented to the trial court in this case, we must conclude that the evidence did not support a finding of dependency. Therefore, we reverse the trial court’s judgment finding the children dependent.

PETITION FOR WRIT OF MANDAMUS-PETITION GRANTED; WRIT ISSUED; APPEAL — REVERSED AND REMANDED.

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

      . Even if the circuit court had properly entered an order pursuant to Rule 58, the order would be interlocutory and, therefore, mandamus relief would be the appropriate remedy. See Ex parte A.M.P., 997 So.2d 1008, 1014 (Ala.2008) ("A petition for a writ of mandamus is an appropriate remedy for challenging an interlocutory order.”).

      . The record indicates that benzodiazepines include Xanax.