author: COBB, Chief Justice.

text:
    Ex parte RENOVATIONS UNLIMITED, LLC; Brian Ford; and Olivia Ford (In re Melissa Trehern and Riley Trehern v. Renovations Unlimited, LLC; Brian Ford; and Olivia Ford).
    1090812.
    Supreme Court of Alabama.
    Oct. 15, 2010.

      Jamie Austin Johnston of Wright Green, P.C., Montgomery, for petitioners.
    Terry A. Sides of Hale, Sides & Akins, LLC, Birmingham, for respondents.
   COBB, Chief Justice.

Renovations Unlimited, LLC, and Brian Ford and Olivia Ford, the owners of Renovations Unlimited (hereinafter referred to collectively as “the petitioners”), petition this Court for a writ of mandamus directing' the' Montgomery Circuit Court to vacate its order issued on March 9, 2010, requiring the petitioners to produce documentary evidence to Melissa Trehern and Riley Trehern in response to the Treherns’ Rule 27, Ala. R. Civ. P., motion for preaction discovery. Because we find that the Treherns have waived all possible claims against the petitioners and thus do not have a cognizable cause of action, we grant the petition and issue the writ.

Facts and Procedural History

On or about November 7, 2006, the Tre-herns entered into a contract with Renovations Unlimited, LLC, pursuant to which Renovations Unlimited would demolish a house in Montgomery and oversee the construction of a new house on the same lot. The contract provided that the Treherns would pay Renovations Unlimited a fee of $55,000 for overseeing the construction of the new house and that the Treherns would be responsible for the construction costs. As construction progressed, Renovations Unlimited submitted draw requests to the Treherns for payments due for such things as subcontractors and materials.

In October or November 2007, a dispute arose between the petitioners and the Tre-herns concerning the draw requests that ultimately resulted in the Treherns terminating their contract with Renovations Unlimited before the construction of the house was completed. Specifically, the petitioners claimed that, at the time they terminated the contract, the Treherns owed Renovations Unlimited approximately $25,000 to $30,000; the Treherns claimed that Renovations Unlimited had not accurately submitted draw requests and had improperly used the proceeds it had received from the draw requests. The Treherns requested that Renovations Unlimited provide them a full and complete copy of its invoices, draw requests, and other documents and records concerning the construction of the house. On November 12, 2007, Renovations Unlimited provided the Treherns’ lender all the requested information.

According to the petitioners, the Tre-herns contacted them on November 13, 2007, and inquired as to whether a settlement could be reached regarding the parties’ dispute. The petitioners contend that the Treherns proposed that the dispute be settled through a reduction in the amount the Treherns owed Renovations Unlimited. On November 15, 2007, the Treherns and the petitioners executed a “Mutual General Release of All Claims” in which the Tre-herns agreed to pay the petitioners $9,800 in exchange for ending all relationships and obligations between the parties. The release contained the following pertinent clauses:

“II. MUTUAL RELEASES
“The Treherns hereby release and discharge [the petitioners] from any and all claims, demands, causes of action, damages, obligations, liabilities, injuries, losses and expenses of whatsoever kind . or nature which relate in any manner to the home located [in] Montgomery, Alabama[,] whether or not, now known or suspected or claimed, whether in law, arbitration, equity or otherwise.
“Without limiting the generality of the foregoing, all parties acknowledge and covenant that, in consideration for the terms set forth herein, the parties knowingly and voluntarily relinquish, waive and forever release any and all rights, damages and remedies which might otherwise be available to the parties, including, without limitation, claims for contract or tort damages of any type, back pay, front pay, emotional damages, mental damages, damages for anguish or anxiety, punitive damages, incentive pay, liquidated damages, special or consequential damages, lost benefits of any kind, severance pay, recovery of attorneys’ fees, costs, expenses of any kind, injuries of any kind, unjust enrichment, breach of contract, tort of outrage, State and Common Law fraud, including deceit and reckless or wanton conduct, suppression, Common Law civil conspiracy, negligent misrepresentations, and/or intentional interference with business relations.
“VIII. KNOWING AND VOLUNTARY WAIVER AND RELEASE
“It is understood and agreed upon that this Release is executed by the parties knowingly and voluntarily and is not based upon representations or statements of any kind by any person as to the merits, legal liabilities or value of the released claims. The parties also acknowledge that no promise or inducement has. been offered or made except as set forth herein.”

The following appeared in bold type before each signature'line for the parties on the release:

“CAUTION: READ BEFORE SIGNING
“THIS DOCUMENT CHANGES YOUR LEGAL RIGHTS. BY SIGNING, YOU ARE MAKING A MATERIAL REPRESENTATION THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS DOCUMENT.”

(Capitalization in original.)

The Treherns contend that, days'after the release was executed by the parties the petitioners provided a document that contained a general summary of the costs of the construction project. The document, however, failed to identify many of the vendors and suppliers by name, address, or other contact information. The Treherns allege that when they did contact the vendors for which contact information had been supplied, the pétitioners’ attorney tried to thwart their attempts by accusing them of violating the terms of the release.

On April 23, 2008, the Treherns filed a verified petition for preaction discovery, pursuant to Rule 27(a), Ala. R. Civ. P., in the Montgomery Circuit Court. In their petition, the Treherns stated: “The [Tre-herns] believe that the draw requests submitted by Renovations Unlimited are more than the actual charges which it incurred and are otherwise excessive and in breach of the construction contract” and “[t]he requested documents and things are needed by the [Treherns] in order to determine whether they have contract, tort, or warranty claims against Renovations Unlimited, LLC, and/or its members/owners, Brian and Olivia Ford, and without such documents and things, the [Treherns] are unable to bring or cause any such claims to be brought.” The petitioners objected, and the trial court held a hearing on the motion on June 10, 2008. During the hearing, the trial court suggested that as an alternative to preaction discovery the Treherns might be able to obtain the information they sought by directly contacting the vendors and suppliers. The Tre-herns on June 13, 2008, submitted to the trial court an affidavit saying they had attempted to contact the vendors and suppliers before the court suggested they do, but they had been stopped by the petitioners’ attorney. On June 16, 2008, the Tre-herns amended their petition for preaction discovery. In their amended petition, the Treherns alleged for the first time that the release was “void on grounds of fraud, thereby giving rise to a cognizable claim against the [petitioners].”' The trial court held a second hearing on the matter on March 2, 2010, and on March 9, 2010, entered an order granting the Tréherns’ petition and ordering the petitioners to produce the requested documents to the Treherns’ attorney within 30 days. On March 16, 2010, ' the petitioners sought mandamus relief in this Court.

Standard, of Review

“ A writ of mandamus will be “issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993).’
“Ex parte Horton Homes, . Inc., 774 So.2d 536, 539 (Ma.2000). Regarding discovery matters specifically, this Court has stated:
“ ‘Discovery matters are within the trial court’s sound discretion, and this Court will not reverse a trial court’s ruling on a discovery issue unless the trial court has clearly exceeded its discretion. Home Ins. Co. v. Rice, 585 So.2d 859, 862 (Ala.1991)...

Ex parte Guaranty Pest Control, Inc., 21 So.3d 1222, 1225-26 (Ma.2009).

Discussion

The Treherns seek preaction discovery pursuant to Rule 27(a), Ala. R. Civ. P. Rule 27(a), in pertinent part, states:

“(1) Petition. A person who desires to perpetuate that person’s own testimony or that of another person or to obtain discovery under Rule 34 or 35 regarding any matter that may be cognizable in any court of this state may file a verified petition in the circuit court in the county of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner ... and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony or to seek discovery under Rule 34 or 35 from the persons named in the petition.”

Concerning preaction discovery under Rule 27, this Court has noted:

“Although Alabama Rule 27 does not give a potential plaintiff ‘carte blanche’ to ‘fish’ for a ground for filing an action, it nonetheless provides for preaction ‘discovery under Rule 34,’ regardless of any need to perpetuate evidence, provided that the requirements of the rule are met and that the trial court is satisfied that such discovery might serve to prevent a failure or delay of justice. As previously noted, relief under Rule 27 is discretionary with the trial court, and a trial court’s ruling on a Rule 27 petition will not be reversed in the absence of an abuse of discretion.”

Ex parte Anderson, 644 So.2d 961, 964 (Ala.1994) (emphasis omitted). Furthermore, review of a trial court’s grant or denial of a verified petition seeking preaction discovery pursuant to Rule 27 is by a petition for a writ of mandamus. See Ex parte Alabama Dep’t of Transp., 757 So.2d 371(Ala.1999).

The petitioners argue that the trial court exceeded its discretion in granting the Treherns’ petition for preaction discovery because, they argue, the Tre-herns relinquished, waived, and/or released their right to pursue legal action against the petitioners by executing the release and thus no longer have “an action cognizable in a court of this state” as required by Rule 27(a)(1). As previously noted, by executing the release, the-Tre-herns

“release[d] and discharge[d] [the petitioners] from any and all claims, demands, causes of action, damages, obligations, liabilities, injuries, losses and expenses of whatsoever kind or nature which relate in any manner to the home located [in] Montgomery, Alabama[,] whether or not, now known or suspected or claimed, whether in law, arbitration, equity or otherwise.”

The release also provided that the parties voluntarily and knowingly agreed to the release of their claims. Further, the release cautioned the parties in bold capital letters above each signature line that they should read the release. before signing it because it changed the parties’ legal rights. As this Court has previously held: “Thus, absent fraud, a release, supported by valuable consideration and unambiguous in meaning, will be given effect according to the intention of the parties from what appears in the four corners of the document itself; and parol evidence is not admissible to impeach or vary its terms.” Wayne J. Griffin Elec., Inc. v. Dunn Constr. Co., 622 So.2d 314, 317 (Ala.1993). Therefore, barring fraud in the inducement of the release, the Treherns do not have, a cognizable claim that may be brought against the petitioners in an. Alabama court.

In their verified petition to the trial court the Treherns stated that preaction discovery was necessary “in order to determine whether [the Treherns] have contract, tort, or warranty claims against [the petitioners].” Before this Court, the Tre-herns contend that this includes discovery as to whether “Renovations Unlimited fraudulently and otherwise unlawfully induced the Treherns to enter into the subject release and settlement agreement by, among other things, misrepresenting to and/or suppressing from them the truth regarding the accuracy of their draw requests and actual incurred charges on the construction projects.”

A fatal flaw, however, exists in the Treherns’ argument. The genesis of the dispute between the Treherns and the petitioners was the allegation by the Tre-herns that Renovations Unlimited was not submitting accurate draw requests and/or was improperly using the proceeds received from those draw requests. In their answer and brief to this Court, the Tre-herns state that they “requested Renovations Unlimited to provide them a full and complete copy of its invoices, draw requests, and its other documents and records regarding the project, but Renovations Unlimited refused to comply with the Treherns’ requests.” (Treherns’ brief, p. 1.) The Treherns knew that the amount of the draws and the use of the draw requests were at the center of their dispute with the petitioners, yet they settled their claims against the petitioners and signed the release before they received the requested documents. The release warned the Treherns in bold capital letters that they were modifying their legal rights by entering into the release, and yet they did so. As this Court has previously held: “[A] person who signs a contract is on notice of the terms therein and is bound thereby, even if he or she fails to read the document.” Locklear Dodge City, Inc. v. Kim-brell, 703 So.2d 303, 306 (Ala.1997). If the Treherns were concerned about the veracity of any statements made by the Fords concerning where and how the draws were used, then they should not have released their right to bring an action against the petitioners. A broad general accusation that there may have been fraud in some form or fashion in the inducement of the release does not warrant the granting of preaction discovery.

Because we conclude that the Treherns do not have a potentially cognizable claim that may be brought in the courts of Alabama, we hold that the trial court exceeded its discretion in granting the Treherns’ petition seeking to conduct preaction discovery pursuant to Rule 27(a), Ala. R. Civ. P. The petition for the writ of mandamus is granted, and the trial court is ordered to vacate its order allowing for preaction discovery and to dismiss the Treherns’ petition for preaction discovery.

PETITION GRANTED; WRIT ISSUED.

WOODALL, SMITH, PARKER, and SHAW, JJ., concur.

      . According to the petitioners, the Treherns never requested this information until after the parties had executed a general release of all claims.

      . The release originally provided for a settlement amount of $10,000. However, because the Treherns claimed that a bathroom sink had been broken while it was in the possession of Renovations Unlimited, the parties struck through the $10,000 and wrote $9,800 into the release as the settlement amount.


source: Caselaw Access Project

author: PER CURIAM. THOMPSON, Presiding Judge, MOORE, Judge,

license: Public Domain

text:
    Brenda PEPPER v. Michael BENTLEY and Dorothy Bentley.
    2070031.
    Court of Civil Appeals of Alabama.
    July 11, 2008.

      Michael Forton, Legal Services Alabama, Inc., Huntsville; and Kenneth J. Lay, Legal Services Alabama, Inc., Birmingham, for appellant.
    Submitted on appellant’s brief only.
   On Application for Rehearing.

PER CURIAM.

This court’s opinion of May 9, 2008, is withdrawn, and the following is substituted therefor.

Brenda Pepper appeals from a judgment entered against her in an ejectment action in the Limestone Circuit Court (“the trial court”). On March 18, 2006, Pepper entered into a mortgage agreement with Redstone, Federal Credit Union (“Red-stone”). The mortgage secured a line of credit and encumbered Pepper’s house and real property (“the property”), which are situated in Limestone County. The mortgage agreement provided that, upon any default by Pepper, the mortgage would be subject to foreclosure and Redstone would have the right to sell the property by auction.

Pepper subsequently defaulted on the terms of the mortgage agreement, and Redstone foreclosed on the mortgage. Pursuant to the mortgage agreement, Redstone sold the property at an auction on November 9, 2006. Dorothy Bentley and Michael Bentley, mother and son, purchased the property at the sale and received a foreclosure deed. Other than the foreclosure deed, the record on appeal does not include any documents relating to the auction or the foreclosure proceedings. On November 10, 2006, the Bentleys served Pepper with a notice to vacate the property within 10 days. Pepper did not do so, and on February 2, 2007, the Bent-leys filed an action for ejectment pursuant to § 6-6-280, Ala.Code 1975.

Pepper answered the Bentleys’ complaint on March 2, 2007. On March 6, 2007, the trial court set the case for trial on March 15, 2007. Per the Bentleys’ motion, the trial court continued the trial setting to March 29, 2007.

On March 16, 2007, Pepper’s attorney filed a motion in which he requested the trial court to appoint a guardian ad litem pursuant to Rule 17(c), Ala. R. Civ. P., to protect Pepper’s interests. In the motion, Pepper’s attorney stated as follows:

“1. That based upon his interactions with his client, that said person is not capable of understanding the proceedings and the direct implications and consequences of her decisions regarding this matter.
“2. That based upon his conversations with her previous counsels of record, that counsel has learned that said person has repeatedly acted contrary to her attorney’s advice and repeatedly takes actions not in her best interest.
“3. That upon investigation, counsel for the Defendant [Pepper] learned that his client has been previously diagnosed with, and treated for, a mental impairment which seriously affected her corm petenee and her ability to make sound, reasonable decisions.
“4. That after investigation and repeated interviews with his client; counsel reasonably believes that his representation of his client has been, and will continue to be, compromised by her mental state, and that he cannot respect his client’s wishes and simultaneously ■ defend her interests within the bounds of the law.
“5. That after due consideration, consultation with his law partners, supervisors, and the Alabama State Bar, counsel reasonably believes that the only way he can effectively and ethically continue representation of this client will be to proceed under Alabama Rules of Professional Conduct Rule 1.14, and Alabama. Rules of Civil Procedure Rule 17(c), and respectfully requests that this Honorable Court appoint a guardian for the purposes of this trial and to evaluate his client’s true mental state.
“6. That counsel shows unto, this Honorable Court that he has not informed his client of his decision to request a guardian, as his client has expressed great distrust of the legal system and mental-health-treatment facilities, and as such has specifically requested that counsel not request a guardian or raise any defense based on mental infirmity. However, for the reasons stated above, counsel reasonably believes this is the only way to fairly and adequately proceed with representation.”

Pepper’s attorney requested that the trial court appoint a guardian ad litem to represent Pepper, order an independent evaluation of Pepper’s mental state, and- grant Pepper leave to amend her answer to include defenses related to her mental capacity. Pepper’s attorney also sought leave for Pepper to assert counterclaims and cross-claims related to her mental capacity. Pepper’s attorney did not expressly request a hearing on his motion.

The trial court did not hold a hearing on the motion for the appointment of a guardian ad litem, and it denied the motion on March 27, 2007. Pepper and Michael Bentley testified at the bench trial on March 29, 2007. The mortgage agreement, the foreclosure deed, and .the request to vacate were admitted into the record. Michael Bentley testified that he and his mother had purchased the property and had advised Pepper to vacate it. He also testified that he believed the fair rental value of the property was between $450 and $550 per month. Upon cross-examination, Bentley admitted that he had never been inside the house and had estimated the rental value “off the top of [his] head.” Bentley testified that hé had incurred $2,000 in attorney fees in the action.

Pepper testified that she remembered receiving the notice to vacate. She also testified that she understood that Red-stone had foreclosed on the mortgage because she had not made payments on the line of credit; however, she subsequently testified that she had paid her debt on the first of every month. Most of Pepper’s testimony was unresponsive to her attorney’s questions. She did testify that the house was “in very bad shape.”

On March 30, 2007, the trial court entered a judgment finding that Pepper had retained possession of the property in derogation of the Bentleys’ rights and that the Bentleys were entitled to immediate possession. The trial court awarded damages in the amount of $2,500 and awarded an attorney fee in the amount of $2,000; The trial court ordered that Pepper immediately be ejected from the property and that the sheriff immediately undertake to peacefully transfer possession of the property to the Bentleys.

On April 2, 2007, Pepper filed a motion to stay the execution of the judgment pursuant to Rule 62(a), Ala. R. Civ. P, The trial court denied the motion that same day, stating simply: “For good cause this court determines no stay of execution per Ala. R. Civ. P. 62 is justified.” On April 30, 2007, Pepper filed a timely post-judgment motion under Rule 59, Ala. R. Civ. P., to alter, amend, or vacate the judgment or, in the alternative, for a new trial. The trial court did not rule on that motion, and, pursuant to Rule 59.1, Ala. R. Civ. P., it was denied by operation of law on July 29, 2007. Pepper filed a timely notice of appeal to our supreme court; our supreme court transferred the case to this court due to a lack of subject-matter jurisdiction. The Bentleys have not filed a brief on appeal.

Pepper raises several arguments on appeal; the first two relate to her attorney’s request for a guardian ad litem pursuant to Rule 17(c), Ala. R. Civ. P. First, Pepper argues that the trial court erred in failing to hold a hearing on her attorney’s motion. Second, Pepper argues that the trial court erred in failing to appoint a guardian ad litem to protect her interests in the action.

Rule 17(c) provides, in relevant part: “The court shall appoint a guardian ad litem (1) for a minor defendant, or (2) for an incompetent person not otherwise represented in an action and may make any other orders it deems proper for the protection of the minor or incompetent person.” Although a trial court, under Rule 17(c), must appoint a guardian ad litem to represent a minor defendant, see Ridgeway v. Strickling, 442 So.2d 106 (Ala.Civ.App.1983), it need only appoint a guardian ad litem to represent an incompetent person when that person is “not otherwise represented” in the action. See, e.g., Williams v. Faucett, 579 So.2d 572, 579 (Ala.1989) (“A review of the record indicates that James was diligently represented by able counsel from the béginning of the case through this appeal. Rule 17(c), [Ala.] R. Civ. P., did not impose on the trial court a duty to appoint a guardian ad litem.”); Meriwether v. Brown, 390 So.2d 1042, 1043 (Ala.1980) (“[A] close reading of the record indicates the Appellant was diligently represented by counsel, from the inception of this suit through this appeal. Consequently, in keeping with Rule 17(c), the trial court was under no duty to appoint a guardian ad litem in the first place.”); see also Ridgeway, supra (in dicta).

In Helton v. Helton, 362 So.2d 257, 259 (Ala.Civ.App.1978), a case involving a divorce proceeding, this court noted that an adjudication of incompetency is not necessary to invoke Rule 17(c). In so holding, this court stated:

“In cases such as the one before us it is sufficient that the trial court is apprised of the possibility that a party is an incompetent by the pleadings or otherwise. Such notice enables the court to appoint a guardian ad litem to protect the alleged incompetent’s interests. In this instance the trial court was apprised prior to the divorce hearing that the husband might be mentally incompetent and in need of legal representation. Accordingly, the trial court followed the mandate of Rule 17(c) and appointed an attorney to serve as the husband’s counsel. Since the divorce was not sought on the grounds of insanity the court was under no compulsion to officially adjudge the husband mentally incompetent prior to rendering a judgment....”

Id. (emphasis added). This court went on to explain that any other steps a trial court may or may not take under Rule 17(c) to protect the interests of an incompetent person are within the trial court’s discretion. “Under Rule 17(c) the court may also take any additional steps it deems proper in an effort to protect the incompetent person. Such steps are, however, within the court’s discretion and we will not reverse the court unless' there is an abuse of such discretion.” Id.; see also Meriwether, 390 So.2d at 1043.

According to Pepper, once an allegation of incompetency is raised, the trial court has a duty to make a determination regarding the party’s competence and to appoint a guardian ad litem if the party is, in fact, incompetent. Under Pepper’s formulation, this duty to make a determination requires the trial court to hold a hearing on the issue of the party’s competence to defend or prosecute the action.

This court has held that, under the Due Process Clause of the Fifth Amendment to the United States Constitution, which is extended to the states by the Fourteenth Amendment, an individual alleged to be incompetent is entitled to a hearing before a trial court may find him or her incompetent and appoint a guardian ad litem to represent his or her interests. Wild v. Wild, 940 So.2d 1037, 1040 (Ala.Civ.App. 2006). However, we can find no Alabama statute, rule, or case requiring a trial court to conduct a hearing before it declines to appoint a guardian ad litem.

Pepper admits that no Alabama case directly addresses this issue or imposes such a requirement. She therefore urges us to look to the law of the federal courts and of other states to find and impose such a duty. Under the specific circumstances of this case, however, we do not believe it is necessary to look to the law of other jurisdictions in order to reach a decision on this issue.

Pepper’s attorney did not submit any evidence to the trial court to support his motion to appoint a guardian ad litem. He did not submit an affidavit detailing his own experiences with Pepper; many of the allegations in his motion were based on apparent hearsay; and many of his allegations about Pepper’s mental state were nebulous, at best. Also, Pepper’s attorney did not expressly request the trial court to conduct a hearing on his motion.

The record shows that Pepper was represented by counsel throughout the ejectment action and her appeal. See Rule 17(c) (“The court shall appoint a guardian ad litem ... for an incompetent person not otherwise represented in an action....” (emphasis added)). As in Helton, supra, the trial court in this case complied with Rule 17(c) by ensuring that Pepper was represented by counsel. As in Helton, the trial court was not required to make an official adjudication regarding Pepper’s competence. See Helton, 362 So.2d at 259. Furthermore, as in Helton, the trial court was vested with discretion regarding whether to take additional steps in order to protect Pepper’s interests. Id. Based on the circumstances presented to us in this case, we will not interfere with that discretion by requiring the trial court to hold a hearing on the motion to appoint a guardian ad litem.

Furthermore, any defenses that Pepper could raise regarding her mental capacity would relate to the validity and enforceability of the underlying mortgage and indebtedness, not to the Bentleys’ right of possession based upon the foreclosure deed. Therefore, a hearing regarding whether Pepper should have been granted leave to amend her answer to assert additional defenses based on her mental capacity would be unavailing. See Palmer v-Resolution Trust Corp., 613 So.2d 373, 375 (Ala.1993) (“The defenses raised by the Palmers concern the RTC’s right to foreclose on its mortgage and are based on alleged irregularities in the underlying note that the Palmers argue made the note void and unenforceable. However, the RTC, as holder of the foreclosure deed, has full legal title, subject only to the right of redemption, ... and has a right to immediate possession of the property .... The Palmers’ ‘affirmative defenses,’ which challenge the underlying note, do not defeat the legal title created by the foreclosure deed and the right of the holder of the foreclosure deed to possession of the property at this time.”).

Pepper argues that, just as the Due Process Clause requires a hearing before a guardian ad litem may be appointed, see Wild, supra, it also requires a hearing before an appointment may be denied. However, in Wild, this court based its decision on the proposition that when a guardian ad litem is appointed to represent a party in an action, the appointment adversely affects the protected liberty interests of that party, i.e., the party’s reputation and the party’s power to control the action. Wild, 940 So.2d at 1039-40. Contrary to Pepper’s assertion, we do not believe that the converse is true. A trial court’s refusal to appoint a guardian ad litem upon allegations of incompetence does not adversely affect the party’s reputation and, in fact, preserves his or her right to control the action." Accordingly, we do not believe that the Due Process Clause of the Fifth Amendment to the United States Constitution required the trial court in this case to conduct a hearing before declining to appoint a guardian ad litem to represent an allegedly incompetent party under Rule 17(c). Based on the foregoing, we cannot say that the trial court exceeded its discretion by not holding a hearing on the motion to appoint a guardian ad litem.

Regarding whether the trial court erred in failing to appoint a guardian ad litem to protect Pepper’s interests, we likewise find that the trial court did not exceed its discretion. In her argument on this issue, Pepper relies upon many cases from the federal courts and from other states, which are not binding authority. Pepper also cites Wipperman v. Wipper-man, 491 So.2d 977, 978 (Ala.Civ.App. 1986), in,which this court affirmed a trial court’s decision not to set aside an earlier judgment based on a party’s postjudgment argument that the appointment of a guardian ad litem to represent her was erroneous. In Wipperman, this court stated, “rather than charged with error, it appears that the. trial court should be commended for attempting to insure proper protection for a party whose second retained attorney has represented to the court that he is unable to understand and communicate with his client.” Id. However, this language is merely dicta and does not interfere with the trial court’s discretion in deciding whether to act in a like manner.

Pepper also argues that her counsel was placed in an ethical quandary by the trial court’s failure to appoint a guardian ad litem. Pepper cites Alabama Rule of Professional Conduct 1.14, which provides:

“(a) When a Ghent’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
“(b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.”

Pepper relies on the “Comparison With Former Alabama Code of Professional Responsibility” following ■ Rule 1.14, which quotes from former Disciplinary Rule “EC 7-12,” stating, in part: “ ‘[Ojbviously a lawyer cannot perform any act or make any decision which the law requires his client to perform or make, either acting for himself if competent, or by a duly constituted representative if legally incompetent.’ ” According to Pepper, her counsel could not simultaneously comply with Pepper’s decisions and diligently represent her interests because Pepper’s decisions regarding the defense of the action conflicted with her interests.

However, Rule 1.14(a), Ala. R. Prof. Cond., requires only, as far as possible, that the lawyer maintain a normal client-lawyer relationship with the client. It is clear from the record that Pepper’s attorney did so. Rule 1.14(b), Ala. R. Prof. Cond., provides only that the “lawyer may seek the appointment of a guardian.” Pepper’s attorney did just that when he moved the trial court to appoint a guardian ad litem. Pepper’s attorney therefore satisfied the requirements of Rule 1.14, and when the trial court denied his motion to appoint a guardian ad litem, he was relieved of any ethical responsibility to act contrary to Pepper’s decisions.

As discussed above, Pepper was represented by counsel as required by Rule 17(c), and her attorney did not present any evidence to the trial court to support his allegations regarding her incompetence. Accordingly, there was no evidence upon which the trial court could have based a decision to appoint a guardian ad litem. The trial court was vested with discretion, and Pepper has not shown on appeal that the trial court exceeded that discretion in failing to appoint a guardian ad litem. See Helton, supra.

In her application for a rehearing, Pepper argues that our decision stands for the proposition that “an attorney’s presence will always satisfy the requirement for a guardian ad litem” and that, under our ruling, “Rule 17(c) will never require the appointment of a guardian ad litem in cases when an incompetent adult is represented by an attorney.” However, our decision does not, as Pepper implies, render proper every decision by a trial court not to appoint a guardian ad litem when the allegedly incompetent individual is represented by counsel. Under Rule 17(c), the determination whether to appoint a guardian ad litem when an allegedly incompetent individual is represented by counsel is within the trial court’s discretion. As Pepper notes, the appointment of a guardian ad litem in such situations is not required in every case. However, the decision is within the trial court’s discretion and may be challenged on appeal to determine whether the trial court has exceeded its discretion. In this case, Pepper has not shown that the trial court exceeded its discretion in deciding not to appoint a guardian ad litem to represent her interests or in failing to hold a hearing on her attorney’s motion to appoint a guardian ad litem.

Pepper next argues on appeal that the trial court erred by setting a trial date that did not allow sufficient time for the parties to prepare. Specifically, Pepper argues that the trial court’s order setting the trial date, which set a trial date that was within 60 days of the date the order was entered, violated Rule 40(a), Ala. R. Civ. P. That rule provides, in pertinent part:

“The trial of actions shall be set by entry on a trial docket or by written order at least sixty (60) days before the date set for trial, subject to the following exceptions: ... (7) where a shorter period of time is otherwise provided by law or these rules or agreed to by all of the parties.”

In Ex parte Medical Assurance Co., 862 So.2d 645, 649 (Ala.2008), a case involving a declaratory judgment, our supreme court explained:

“While Rule 40 vests considerable discretion in the trial court concerning the setting of cases for trial, see Rüle 40(a), Committee Comments on 1973 Adoption, the rule sets 60 days as the mandatory minimum time within which parties to an action must have notice of a trial setting. As shown above, however, the 60-day requirement is subject to certain exceptions. Rule 40(a)(7) provides that the 60-day limit is not applicable ‘where a shorter period of time is otherwise provided by law or these rules or agreed to by all the parties.’ ”

In Meriwether, supra, the trial court appointed a guardian ad litem to represent the appellant one day before trial, upon her attorney’s request. 390 So.2d at 1043. On appeal, the appellant argued that the trial court had erred in failing to allow her guardian ad litem sufficient time to prepare his case; our supreme court found that argument to be without merit. Id. The court first noted that the appellant had been diligently represented by counsel, and therefore, it reasoned, the trial court was not obligated by Rule 17(c) to appoint a guardian ad litem. Id. The court then reasoned as follows:

“The Circuit Court received Appellant’s request for appointment of a guardian ad litem one day prior to the date the case was set for trial. Neither the attorney for Appellant nor the guardian ad litem himself ever requested a continuance in the matter. Furthermore, the record indicates that the guardian ad litem signed an acceptance and filed an answer while never objecting to the trial date of October 18, 1979.”

Id. (emphasis added). The supreme court found that the trial court had acted properly and had not exceeded its discretion. Id. at 1044.

The Bentleys requested and were granted a continuance of the original trial setting in this case. Neither the Bentleys nor Pepper objected to the second trial setting of March 29, 2007. They therefore implicitly agreed to that setting. See Rule 40(a)(7). Pepper and her attorney had notice of the trial and an opportunity to be heard, thus satisfying all due-process concerns. See Isler v. Isler, 870 So.2d 730 (Ala.Civ.App.2003). Additionally, as in Meriwether, Pepper’s counsel did not request a continuance at any time before the March. 29, 2007, trial. We will not presume that the trial court exceeded its discretion by conducting the trial on the appointed date when Pepper did not request additional time.

Next, Pepper argues on appeal that the trial court erred in not granting a stay of execution of its judgment pursuant to Rule 62(a), Ala. R. Civ. P. In Reynolds v. Henson, 277 Ala. 424,171 So.2d 240 (1965), our supreme court dismissed an appeal from a denial of a motion to stay the execution of a judgment. The supreme court stated: “There is no authority for the taking of an appeal as such from an order denying a motion to stay execution.” 277 Ala. at 425, 171 So.2d at 240. Accordingly, Pepper may not appeal from the trial court’s denial of her motion to stay execution of the judgment, and her appeal is due to be dismissed as to this issue.

Pepper also argues that the trial court’s judgment awarding damages to the Bentleys was not based on sufficient evidence. Pepper maintains that only the Bentleys’ lawyer actually stated an approximate rental value of the property. Pepper also cites her own testimony about the condition of the property. According to Pepper, no evidence in the record supports the trial court’s award of $2,500 in damages to the Bentleys.

: “Where evidence is presented to the trial court ore tenus, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.” American Petroleum Equip. & Constr., Inc. v. Fancher, 708 So.2d 129, 132 (Ala.1997). The trial transcript shows that the trial court heard the following testimony.

“[Counsel for the Bentleys]: Do you have an opinion what [the property’s] fair rental valué is on a monthly basis? “[Michael Bentley]: I’d say probably somewhere around $⅛50, $500, $550. I don’t know for sure. I don’t do any rental property.
“[Counsel for the Bentleys]: And you think it has a value on a monthly basis of between 450 and 550 dollars?
“[Bentley]: I’d say it does, yeah.
“[Counsel for Pepper]; ... [Y]ou stated that you felt the fair rental value of that property was about $400 to $500 a month. What did you base that on, sir? “[Bentley]: Well, see, I haven’t been in the house. That’s just a price I’m getting off the top of my head what you would pay for a house, say that size, that location. I mean, you know, I don’t rent property so I wouldn’t know. That’s just a rough estimate.”

(Emphasis added.)

The trial court, therefore, received ore tenus testimony regarding the rental value of the property upon which it could have based its award of damages. Pepper’s arguments on appeal relate solely to the weight of that evidence. This court does not reweigh evidence and “may not substitute its judgment for that of the trial court.” Somers v. McCoy, Ill So.2d 141, 142 (Ala.Civ.App.2000). Therefore, we cannot hold that the trial court exceeded its discretion in awarding damages to the Bentleys.

Finally, Pepper argues that the trial court’s award of an attorney fee to the Bentleys was in error because no statutory or other authority authorized such an award. Our supreme court has explained: “In Alabama, attorneys’ fees are recoverable only where authorized by statute,' when provided in a contract, or by special equity, such as in a proceeding where the efforts of an attorney create a fund out of which fees may be paid.” Ea-gerton v. Williams, 433 So.2d 436, 450 (Ala.1983); see also King Dev. & Realty, Inc. v. Eslami, 964 So.2d 51, 57 (Ala.Civ.App.2007). Section 6-6-280(b), Ala.Code 1975, pursuant to which the Bentleys sought to eject Pepper from the property, provides: “The plaintiff may recover in this action mesne -profits and damages for waste or any other injury to the lands, as the plaintiffs interests in the lands entitled him to recover, to be computed up to the time of the verdict.”

We cannot find any statute or case granting a trial court authority to award an attorney fee in an ejectment action absent a separate contractual provision permitting such an award, such as in a mortgage or lease agreement. Cf. Garrison v. Stanford, 586 So.2d 1, 3 (Ala.Civ.App.1991). Because no statutory authority authorizes such an award and because no contractual agreement permitting such an award exists between Pepper and the Bentleys, we must reverse the trial court’s award of an. attorney fee for the Bentleys.

Accordingly, the trial court’s award of an attorney fee is reversed. Pepper’s appeal from the trial court’s denial of her motion to stay execution of the judgment is dismissed. In all other respects, the trial court’s judgment is affirmed.

OPINION OF MAY 9, 2008, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED; AFFIRMED IN PART; REVERSED IN PART; AND APPEAL DISMISSED IN PART.

PITTMAN and THOMAS, JJ., concur.

THOMPSON, P.J., and MOORE, J., concur in part and concur in the result in part, with writings.

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

THOMPSON, Presiding Judge,

concurring in part and concurring in the result in part.

I concur in the result with that part of the main opinion that dismisses Brenda Pepper’s appeal to the extent that it is taken from the trial court’s denial of her motion to stay execution of the judgment. I believe that Pepper’s brief on this particular issue did not comply with Rule 28(a)(10), Ala. RApp. P., and that, therefore, her argument as to this issue should not be considered. In all other respects, I concur in the main opinion.

MOORE, Judge,

concurring in part and concurring in the result in part.

I concur in the result with regard to the issue whether the trial court complied with Rule 40(a), Ala. R. Civ. P., in setting the case for a trial. As to the remaining issues, I concur.

      . A Rule 59 postjudgment motion "shall be filed not later than thirty (30) days after entry of the judgment.” See Rule 59(b) and (e). The 30th day after March 30, 2007 — the date the trial court entered its judgment — was Sunday, April 29th, 2007. Therefore, pursuant to Rule 6(a), Ala. R. Civ. P., Pepper had until Monday, April 30, 2007, to file her post-judgment motion.

      . The Alabama Uniform Guardianship and Protective Proceedings Act, § 26-2A-1 et seq., Ala.Code 1975, also provides: "At any point in a proceeding, a court may appoint a guardian ad litem to represent the interest of a minor or other person if the court determines that representation of the interest otherwise would be inadequate.” § 26-2A-52, Ala. Code 1975. '

      . Pepper cites federal cases to support her arguments that the phrase "not otherwise represented” in Rule 17(c) is not satisfied merely by representation by counsel and that, once an allegation of incompetency is raised, a determination as to competency is required. See, e.g., United States v. 30.64 Acres of Land, 795 F.2d 796, 806 (9th Cir.1986); Zaro v. Strauss, 167 F.2d 218, 220 (5th Cir.1948); Scannavino v. Florida Dep’t of Corr., 242 F.R.D. 662, 666 (M.D.Fla.2007). However, in light of our supreme court's decisions in Williams, Meriwether, and Helton, supra, Pepper's argument is misplaced. The authority Pepper relies on is not binding precedent, and we are not persuaded that we should depart from the established authority of this state.


author:
MURDOCK, Justice.
      COBB, Chief Justice SMITH, Justice

text:
    Ex parte Brenda PEPPER. (In re Brenda Pepper v. Michael Bentley and Dorothy Bentley).
    1071469.
    Supreme Court of Alabama.
    Sept. 30, 2010.
    Michael Forton of Legal Services Alabama, Inc., Huntsville; and Kenneth J. Lay of Legal Services Alabama, Inc., Birmingham, for petitioner.
    Jere C. Trent and Thomas H. Guthrie, Athens, for respondent.
    James A. Tucker, Alabama Disabilities Advocacy Program, Tuscaloosa, for amicus curiae Alabama Disabilities Advocacy Program, in support of the petitioner.
   MURDOCK, Justice.

The writ of certiorari is quashed.

In quashing the writ, 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 QUASHED.

LYONS, STUART, BOLIN, PARKER, and SHAW, JJ., concur.

COBB, C.J., and WOODALL and SMITH, JJ., dissent.

COBB, Chief Justice

(dissenting).

I respectfully dissent from the order quashing the writ in this case. The motion for appointment of a guardian ad litem demonstrated that Brenda Pepper was not (and could not be) represented by counsel in the absence of the appointment of a guardian ad litem. Omitting those portions of the motion that are arguably hearsay, Pepper’s counsel stated as follows in that motion:

“1. That based upon [counsel’s] interactions with his client, [Pepper] is not capable of understanding the proceedings and the direct implications and consequences of her decisions regarding this matter.
“2.
“3.
“4. That after investigation and repeated interviews with [Pepper], counsel reasonably believes that his representation of [Pepper] has been, and will continue to be, compromised by her mental state, and that he cannot respect [Pepper’s] wishes and simultaneously defend her interests within the bounds of the law.
“5. That after due consideration, consultation with his law partners, supervisors, and the Alabama State Bar, counsel reasonably believes that the only way he can effectively and ethically continue representation of [Pepper] will be to proceed under Alabama Rules of Professional Conduct Rule 1.14, and [Rule 17(c), Ala. R. Civ. P.], and respectfully requests that this Honorable Court appoint a guardian for the purposes of this trial and to evaluate [Pepper’s] true mental state.
“6. That counsel shows unto this Honorable Court that he has not informed [Pepper] of his decision to request a guardian, as [Pepper] ... has specifically requested that counsel not request a guardian or raise any defense based on mental infirmity. However, for the reasons stated above, counsel reasonably believes this is the only way to fairly and adequately proceed with representation.”

(Emphasis added.)

Rule 17(c), Ala. R. Civ. P., provides: “The court shall appoint a guardian ad litem ... for an incompetent person not otherwise represented in an action.” The appointment of a guardian ad litem is within the trial court’s discretion, but the failure to inquire into the defendant’s circumstances is a failure to exercise that discretion and is a question of law reviewable de novo. See United States v. 30.6U Acres of Land, 795 F.2d 796, 805 (9th Cir.1986). Further, it is settled law that “[t]he decision by a court whether to appoint a next friend or guardian ad litem rests with the sound discretion of the court and will not be disturbed unless there has been an abuse of its authority. However, the court must make a specific finding that the interests of the incompetent person are adequately protected in the event it does not make such appointment.” 53 Am.Jur.2d Mentally Impaired Persons § 162 (2006) (footnotes omitted; emphasis added).

In light of the above and the plain language of the motion filed by Pepper’s counsel, the trial court erred by neither appointing a guardian ad litem nor inquiring into Pepper’s competency by means of an evidentiary hearing or otherwise. The motion placed the trial court on notice that, for all practical purposes, counsel found himself unable to represent his client in the absence of a guardian ad litem because he found his client unable to consider his advice and her own best interests and to make those choices required of a client in the course of legal representation. As a matter of law, the pleadings themselves may serve as notice to the trial court that a party is likely to require a guardian ad litem. Helton v. Helton, 362 So.2d 257, 259 (Ala.Civ.App.1978) (“[I]t is sufficient that the trial court is apprised of the possibility that a party is an incompetent by the pleadings or otherwise. Such notice enables the court to appoint a guardian ad litem to protect the alleged incompetent’s interests.”).

Not only did counsel’s motion place the trial court on notice of a likelihood that counsel would be unable as a practical matter to represent Pepper in the absence of a guardian ad litem, but the plain language of paragraph five of the motion expressly requests the trial court to initiate an evaluation into Pepper’s mental state. The majority’s action in quashing the writ implies that counsel’s failure to submit evidence or to request a hearing for the purpose of evaluating Pepper’s mental state was fatal to the motion. I cannot agree. The motion adequately requests the trial court to conduct the necessary inquiry into Pepper’s mental state. The motion also makes clear that Pepper instructed counsel that she did not want a guardian ad litem and did not want to raise any defense based on mental infirmity. Under such circumstances, asking the trial court to inquire into a client’s mental state, rather than attempting to collect admissible evidence of a client’s mental incompetence (much less submitting it to the trial court against the express wishes of one’s client), avoids unnecessary practical and ethical hurdles and pitfalls. See Rule 1.14(c), Ala. R. Prof. Conduct (“Information relating to the representation of a client with diminished capacity is protected by Rule 1.6[, Ala. R. Prof. Conduct]. When taking protective action pursuant to paragraph (b) [pertaining to the lawyer’s duty to request a guardian ad litem for a client with diminished capacity], the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent necessary to protect the client’s interest.”).

Because I would hold that the trial court erred in neither appointing a guardian ad litem nor holding a hearing on Pepper’s competence to participate in a counsel/client relationship, I respectfully dissent.

SMITH, Justice

(dissenting).

Brenda Pepper appealed to the Court of Civil Appeals from a judgment in the Limestone Circuit Court ejecting her from her house, which had been foreclosed upon and sold. The Court of Civil Appeals affirmed the judgment in most respects. Pepper v. Bentley, 59 So.3d 684 (Ala.Civ.App.2008).

Pepper is beyond the age of majority and has not been adjudicated an incompetent. Before trial in the Limestoné Circuit Court, however, Pepper’s attorney filed a motion raising substantial questions about Pepper’s competence and requesting the appointment of a guardian ad litem under Rule 17(c), Ala. R. Civ. P., to protect Pepper’s interests. In the motion, Pepper’s attorney stated:

“1. That based upon his interactions with his client, [Pepper] is not capable of understanding the proceedings and the' direct implications and consequences of her decisions regarding this matter..
“4. That after investigation and repeated interviews with [Pepper], counsel reasonably believes that his representation of [Pepper] has been, and will continue to be, compromised by her mental state, and that he cannot respect [Pepper’s] wishes and simultaneously defend her interests within the bounds of the law.
“5. That after due consideration, consultation with his law partners, supervisors, • and the Alabama State Bar, counsel reasonably believes that the only way he can effectively and ethically continue representation of [Pepper] will be to proceed under Alabama Rules of Professional Conduct Rule 1.14, and Alabama Rules of Civil Procedure Rule 17(c), and respectfully requests that this Honorable Court appoint a guardian for the purposes of this trial and to evaluate [Pepper’s] true mental state.
“6. That counsel shows unto this Honorable Court that he has not informed [Pepper] of his decision to request a guardian, as [Pepper] has expressed. great distrust of the legal system ' and mental-health-treatment facilities, and as such has specifically requested that counsel not request a guardian or raise any defense based on mental infirmity. However, for the reasons stated above, counsel reasonably believes this is the only way to fairly and adequately proceed with representation.”

The trial court denied counsel’s motion for the appointment of a guardian ad litem for Pepper without holding a hearing, without making any findings of fact, and without stating its basis for denying the motion.

This Court granted the petition for a writ of certiorari with respect to the following issues: (1) Whether the trial court erred in failing to conduct a hearing on Pepper’s motion for the appointment of a guardian ad litem, and (2) whether the trial court erred in failing to appoint a guardian ad litem for Pepper. Although Pepper’s attorney did not specifically request a hearing on his motion, at a minimum I think the portions of the motion quoted above articulated sufficient details to warrant a hearing. Therefore, I respectfully dissent from quashing the writ.

      . The statements in the motion are specific and directly relevant to the issue of counsel's ability to represent Pepper without a guardian ad litem present. I cannot join the Court of Civil Appeals in dismissing those statements as "nebulous.”


author: THOMAS, Judge.

text:
    Dorrian D. JOHNSON v. LOWE’S HOME CENTER, INC.
    2090306.
    Court of Civil Appeals of Alabama.
    Oct. 8, 2010.

      Tyrone C. Means and Gerald C. Brooks of Thomas, Means, Gillis & Seay, P.C., Montgomery, for appellant.
    Anthony N. Fox and Robert M. Ronn-lund of Scott, Sullivan, Streetman & Fox, P.C., Birmingham, for appellee.
   THOMAS, Judge.

Dorrian D. Johnson appeals the Autauga Circuit Court’s judgment in his workers’ compensation action, in which the court determined that his injury was not com-pensable under the Workers’ Compensation Act (“the Act”), codified at § 25-5-1 et seq., Ala.Code 1975.

Facts and Procedural History

On July 1, 2008, Johnson filed a workers’ compensation action against Lowe’s Home Center, Inc. (“Lowe’s”). Johnson alleged that he had sustained an injury on May 14, 2008, that arose out of and in the course of his employment with Lowe’s. Lowe’s answered Johnson’s complaint on July 25, 2008, admitting that Johnson was a part-time employee of Lowe’s on May 14, 2008, and that the Act applied to Johnson’s claims. Lowe’s denied, however, that Johnson’s injury arose out of and in the course of his employment, that Johnson had suffered any disability, and that it had received notice of Johnson’s injury occurring on May 14, 2008.

On July 27, 2009, following a hearing at which the trial court heard ore tenus testimony concerning only the issue of the compensability of Johnson’s injury, the trial court entered the following judgment:

“This cause coming on before this Court upon the Petition for Worker’s Compensation Benefits as filed by [Johnson] and the parties appearing on May 19, 2009 and by agreement presented only the issue of compensability or the issue of whether or not the alleged injury is compensable. The testimony being taken ore tenus and certain stipulations being made as follows:
“A. The Plaintiff, Dorrian D. Johnson was an employee of Lowe’s Home Center, Inc. on May 14, 2008.
“B. The Alabama Worker’s Compensation Act covers all parties.
“Upon hearing the testimony at length on the issue of the alleged injury, this Court finds this not to be a compen-sable injury.”

On August 26, 2009, Johnson filed a motion to alter, amend, or vacate the trial court’s judgment or, in the alternative, to amend its judgment to include specific findings of fact. The trial court conducted a hearing on Johnson’s postjudgment motion and subsequently denied it. Johnson appealed.

Discussion

In Ex parte Curry, 607 So.2d 280, 231-32 (Ala.1992), the Supreme Court of Alabama held:

“The procedure in disputed claims arising under the Workmen’s Compensation Act is set out in § 25-5-88, Code of Alabama 1975, and must be complied with. The statute reads in pertinent part:
“ ‘At the hearing or any adjournment thereof the court shall hear such witnesses as may be presented by each party, and in a summary manner without a jury, unless one is demanded to try the issue of willful misconduct on the part of the employee, shall decide the controversy. This determination shall be filed in writing with the clerk of said court, and judgment shall be entered thereon in the same manner as in civil actions tried in the said circuit court and shall contain a statement of the law and facts and conclusions as determined by said judge.’
“(Emphasis added.) Section 25-5-88 requires that a judgment in a worker’s compensation case contain findings of fact and conclusions of law. Dale Motels, Inc. v. Crittenden, 49 Ala.App. 51, 268 So.2d 834 (1972). While the appellate courts have reversed worker’s compensation decisions in which the trial court’s findings of fact were completely unresponsive to the issues (Dennis v. Gamble’s Inc., 389 So.2d 142 (Ala.Civ.App.1980)), they have also held that substantial compliance with § 25-5-88 will suffice. Dees v. Daleville Florist, 408 So.2d 155 (Ala.Civ.App.1981); Fordham v. Southern Phenix Textiles, Inc., 387 So.2d 204 (Ala.Civ.App.), cert. denied, 387 So.2d 206 (Ala.1980).”

Further, in Dun & Bradstreet Corp. v. Jones, 678 So.2d 181, 187 (Ala.Civ.App.1996), this court held that

“the trial court has a duty to make a finding on each issue presented and litigated before it. Thomas v. Gold Kist, Inc., 628 So.2d 864 (Ala.Civ.App.1993). ‘In instances where the trial court fails to make a finding responsive to the issue-presented, the case must be reversed.’ Id. at 867. See also Harbin v. United States Steel Corp., [356 So.2d 179 (Ala.Civ.App.1978)].”

In the present case, the issues presented to the trial court concerning the compensa-bility of Johnson’s injury were whether his injury arose out of and in the course of his employment with Lowe’s and whether Lowe’s received notice-of Johnson’s injury. The trial court failed to include findings of fact responsive to the issues presented, as required by § 25-5-88. Therefore, we reverse the trial court’s judgment and remand the cause for the trial court to include the necessary findings to support its judgment.

Conclusion

Based on the foregoing, we reverse the trial court’s judgment and remand the cause for the entry of a judgment that complies with § 25-5-88!

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    ALABAMA DEPARTMENT OF HUMAN RESOURCES v. B.V. and D.V.
    2090009.
    Court of Civil Appeals of Alabama.
    Oct. 15, 2010.

      Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, staff atty., Department of Human Resources, for appellant.
    Robert D. Drummond, Jr., Fairhope, for appellees.
   PER CURIAM.

The Alabama Department of Human Resources (“DHR”) appeals from the Jefferson Probate Court’s judgment granting B.V. and D.V.’s petition to adopt J.C. We affirm.

J.C. was born on August 19, 1989, with multiple medical problems, including partial trisomy 18, and he was later diagnosed as also suffering from mental retardation and autism. Shortly after J.C.’s birth, the Macon County Department of Human Resources (“the Macon County DHR”) acquired custody of J.C. based on dependency proceedings filed in the Macon Juvenile Court, and, on November 21, 1990, the Macon County DHR placed J.C. in the home of B.V. and D.V., who were licensed foster parents. For the next 18 years, except for a 20-month period when J.C. was placed in a residential facility, J.C. remained in the home of B.V. and D.V. The Macon County DHR retained custody of J.C. during that period. It is undisputed that, at present, J.C. has an IQ in the low 30s and that he functions on the level of a 2-year-old child.

In 2003, B.V. and D.V. moved to Hoover and enrolled J.C. in public school there. Although J.C. attended only the first few months of the 2003-2004 school year in the Hoover public schools, he attended Hoover High School throughout all the 2004-2005, 2005-2006, and 2006-2007 school years. J.C. attended Hoover High School during the 2007-2008 school year until, on February 22, 2008, DHR summarily removed him from B.V. and D.V.’s home and placed him in The Learning Tree, a residential-care facility.

On August 20, 2008, the day after J.C. reached 19 years of age, B.V. and D.V. filed in the Jefferson Probate Court a petition to adopt J.C., who they described as a mentally retarded and permanently and totally disabled adult. At that time, no guardianship or conservatorship proceeding had been initiated concerning J.C. On August 21, 2008, the Jefferson Probate Court appointed a guardian ad litem for J.C. and entered an interlocutory order awarding custody of J.C. to B.V. and D.V.

On September 15, 2008, the Jefferson Probate Court granted a petition filed by DHR to intervene in the adoption proceedings. DHR thereafter filed a contest to the adoption and moved to transfer the proceedings to the Macon Juvenile Court. On October 14, 2008, S.C., J.C.’s maternal grandmother, filed a motion to intervene, along with a motion to transfer and a contest to the adoption, tracking the language of DHR’s filings. The Jefferson Probate Court denied S.C.’s motions and contest that same date. On October- 30, 2008, Linda W. Henderson, an .attorney previously appointed as the guardian ad litem for J.C. by the Macon Juvenile Court, filed a notice of appearance in the Jefferson Probate Court and joined in DHR’s adoption contest and in its pending motion to transfer. The Jefferson Probate Court denied the motion to transfer on December 4, 2008.

In April 2009, S.C. filed a petition for letters of guardianship in the Macon Probate Court. The Macon Probate Court subsequently issued letters of guardianship to S.C. on May 1, 2009, after which S.C. again moved to intervene in the adoption proceedings and renewed her adoption contest and her motion to transfer the proceedings to the Macon Juvenile Court. On May 18, 2009, B.V. and D.V. filed a motion to vacate or to revoke the order granting letters of guardianship to S.C., which the Macon Probate Court granted on May 26, 2009, simultaneously transferring the case to the Jefferson Probate Court. On May 29, 2009, the Macon Probate Court purported to reinstate the letters of guardianship on the basis that B.V. and D.V. had not had standing to file their motion to reconsider the Macon Probate Court’s original order granting letters of guardianship to S.C.

Meanwhile, the Jefferson Probate Court commenced a trial on the adoption petition and the contests to that petition on May 6, 2009, which continued on May 7, 2009. On that date, N.C., the natural mother of J.C., filed in the Jefferson Probate Court an adoption contest and a motion to transfer the. action to the Macon Juvenile Court. The Jefferson Probate Court recessed the trial. During the recess, Henderson, the guardian ad litem appointed by the Macón Juvenile Court, filed a report recommending that B.V. and D.V.’s petition for- adoption be denied. The trial concluded on May 29, 2009.

At the trial, Willie Huff, owner of Huff Industries, testified that DHR had hired his company to provide transportation services for J..C.’s visitation with S.C. from 2006 to 2008. , At the time his company provided those services, J.C. lived with B.V. and D.V. and attended Hoover High School. He testified that he had observed J.C. in the classroom and that he had seen J.C. hit. his teacher a couple of times and spit at.her, although he had not observed J-.C. acting aggressively .toward anyone else-at,the school. He had also observed J.C. iri the -home acting aggressively toward B.V. and D.V., although he testified that it had appeared that J.C. was being aggressive in order to gain their attention rather-than in a mean-spirited way. He testified that J.C. had never been aggressive with him. Huff testified that, during the time he had worked with J.C., J.C. had visited S.C. every other weekend. He testified that, although B.V. and D.V. .tended to take care of J.C.’s hygienic needs for him, S.C. tended to help J.C. take care of his hygienic needs for himself. Huff testified that, during the two years he had worked with J.C., J.C. had gained weight and that that weight gain had caused J.C. to develop breathing problems. He testi-fíed that B.V. and D.V.’s care of J.C. was good.

Ann Boyd testified that she had worked as a quality-assurance reviewer for DHR and that, in February 2006, she had been assigned to review J.C.’s case. She testified that she had performed that review over a three-day period, reviewing records and visiting with and interviewing numerous individuals involved with J.C.’s care. She testified that she had concluded, based on her review, that she had concerns about the appropriateness of J.C.’s placement in foster care at that time. She testified that she had been concerned that J.C. was not making progress in terms of his communication and his self-help skills and that he was not making progress in school. She testified that she had been concerned that it took what she considered an inordinate number of people to control J.C.’s behavior. She testified that J.C. did not have social skills and that he tended to intrude into others’ personal space. She stated that he was not able to socialize with other children at school and that behavior aids were in B.V. and D.V.’s home 70 hours per week. She indicated that B.V. and D.V. tended to use rewards of food, such as cake icing, peanut butter, and french fries, to control J.C.’s behavior. She stated that her observations of J.C. in B.V. and D.V.’s home were that he was being catered to rather than being taught self-help or communication skills.

Dr. Toren Anderson, a pediatrician, testified that B.V. began taking J.C. to him for routine checkups in 2003. He testified that J.C.’s weight had always been a major issue and that B.V. and D.V. had often discussed it with him. Dr. Anderson testified that, because of J.C.’s bone structure, he was bound to be a large person. He testified that J.C.’s medical issues were magnified by a medicine he was taking that increased his appetite. He testified that B.V. and D.V. ate appropriate foods and lived an active lifestyle. He testified that J.C. had a voracious appetite and that, to his knowledge, there was nothing B.V. and D.V. could have done that would have ameliorated J.C.’s weight issue. He stated that, in his opinion, B.V. and D.V. had done an outstanding job of caring for J.C. and that J.C.’s weight problem had more to with genetics and medication than it did with eating too many sweets.

Paula Manning, a registered nurse and the coordinator of medical services at The Learning Tree facility at which J.C. had been placed in 2008, testified that, when J.C. arrived at The Learning Tree, he was obese; he was unable to rise from a seated position in a chair by himself, and he was unable to climb stairs without losing his breath. She testified that he was put on a special diet at The Learning Tree consisting of low-fat foods, sugar-free drinks, and healthy snacks. She testified that J.C. had weighed 337 pounds when he had arrived at The Learning Tree but that, since that time, he had lost 89 pounds. She testified that he could now climb stairs without losing his breath and that he could now rise from a seated position.

Dr. James Williams, The Learning Tree’s campus supervisor for the campus at which J.C. had been placed, testified that J.C. exhibited uncooperative behavior, although his behavior had improved since arriving at The Learning Tree. He stated that J.C. had made progress in learning to bathe himself and that J.C.’s personal hygiene was improving. Dr. Williams admitted that the teachers at The Learning Tree campus at which J.C. had been placed were not certified special-education teachers. He testified that, approximately once every month, J.C.’s behavior became such that he had to be restrained by being placed in a prone position on the floor with two people holding him down.

Dr. Barbara Mayer, the director of instructional-support services for Hoover city schools, testified that J.C. had attended Hoover city schools from August 2003 until his removal by DHR in February 2008. Dr. Mayer testified that, early in the 2008-2004 school year, J.C. had injured his teacher’s eye and that the injury had required medical treatment at an emergency room. He later injured the same teacher again. In early October 2003, J.C. punched or kicked an autism specialist in the lower abdomen, causing a hematoma for which the specialist required surgery. Dr. Mayer testified that, after injuring those individuals, J.C. was removed from Hoover schools and was educated in B.V. and D.V.’s home. She stated that the next school year he returned to Hoover High School, where he was placed in a classroom by himself. Dr. Mayer testified that, at times, J.C. would smell of urine or feces when he came to school and that he had a tendency to destroy property in the classroom. She testified that, during J.C.’s last couple of years at the high school, he was transported to and from the school by bus. She stated that he was the only student who rode that bus and that three or four adults rode with him. She testified that there were numerous incidents on the bus involving J.C. pinching, hitting, spitting, and grabbing. She testified that removing J.C. from the bus was always a challenge and that, often, the process of removing him from the bus and taking him to his classroom would take as long as an hour. Dr. Mayer testified that J.C. had not made significant progress while in the Hoover school system.

Gurushadad Khalsa, a certified special-education teacher who served as J.C.’s teacher at Hoover High School during the 2006-2007 and 2007-2008 school years, testified that J.C. had made substantial progress ■ during the two years that she had taught him. She testified that it had been noted on his last individualized-education-program report before being removed from B.V. and D.V.’s home that he was able to sort, match, package, file, and assemble. She testified that, ■ although J.C. was in a classroom by himself, several of his peers would come into the classroom throughout the day to spend time with him and to give him the opportunity for social interaction. According to Khalsa, J.C. was social, loved people, and was happy to see his peers when they visited with him. She testified that, at first, J.C. was not able to have people in close proximity to him, but, she testified, by the second year that she taught him, he had progressed to the point that his peers could sit next to him. She testified that several of the peers who had visited J.C. had developed strong relationships with him. She testified that J.C.’s behavior had improved substantially over the time she was his teacher. Khalsa testified that J.C. had attended the high-school prom one year. She stated that, although there were safety concerns regarding placing J.C. in a classroom with other students, those concerns had diminished substantially over time. She testified that J.C. had never been restrained by being placed on the ground in a prone position while he had attended Hoover High School.

D.V., the foster father, testified that he works as an electrical engineer for an automobile-manufacturing company. He testified that he had known J.C. since J.C. was 8 months old, and he stated that J.C. had “been his son” since J.C. was 15 months old. He testified that, when J.C. was placed in their home, J.C. had not yet been diagnosed with mental retardation or autism. He testified that, when J.C. was diagnosed with autism at age four or five, that diagnosis did not change his and his ■wife’s desire to care and provide for J.C. He testified that there was not much involvement from DHR during J.C.’s early years.

D.V. testified that it had never been his desire for N.C. and S.C. not to be a part of J.C.’s life. He testified that he had invited them to B.V. and D.V.’s home, and he had invited them, after their visits with J.C., to have a meal with them at ■ a restaurant. D.V. testified that there were times when DHR would not provide transportation to take J.C. to S.C.’s house for visitation and that B.V. and he would drive J.C. to Tuskegee themselves, a four-hour drive, for that visitation. D.V. stated that he once expressed frustration that it appeared that B.V. and he were the only ones who wanted to ensure that J.C. was able to visit with S.C. because they were not receiving any support from DHR or S.C. to make sure the visitation occurred.

D.V. testified that Dr. Mayer’s conduct while J.C. was in the Hoover city schools caused B.V. and him to initiate a “due-process” proceeding regarding J.C.’s education there. D.V. testified that B.V. and he prevailed in that due-process proceeding and that, as a result, J.C. was able to continue being educated at Hoover High School.

D.V. stated that he did not know that J.C. was going to be removed from B.V. and his home on the morning of February 22, 2008. D.V. testified that B.V. and he had not been allowed to have contact with J.C. since- he was taken to The Learning Tree and that all their mail to him had been returned.

D.V. testified that he recognized that, throughout J.C.’s remaining life, J.C.’s needs would change periodically, and he stated that he believed that B.V. and he were in the best position to make decisions for J.C. He testified that he would not be petitioning to adopt J.C. if anyone else throughout J.C.’s life had shown the dedication to make decisions for J.C.

D.V. testified that he and B.V. had an active family life and that they would often take their family, including J.C., places. He testified that J.C. attended church with them.

D.V. testified that he had never had to restrain J.C. by placing him in a prone position on the floor and holding him down. He testified that he views J.C. as a son and that J.C. knows him as a father. D.V. testified that, if it came to a point when it appeared J.C. needed to be placed in an institution, he would be able to have J.C. placed there.

B.V., the foster mother, testified that she wanted to continue to serve as J.C.’s mother. She testified that J.C. performed some functional tasks in the home, such as working with the washing machine and the dryer. She also testified that J.C. had participated in the Special Olympics.

Following the trial, DHR moved to dismiss the adoption petition, and the guardian ad litem appointed by the Jefferson Probate Court filed a consent to the adoption. On July 28, 2009, the Jefferson Probate Court entered a final judgment approving the adoption. In that judgment, the Jefferson Probate Court dismissed the contest filed by S.C. because it concluded that S.C. had no standing. The Jefferson Probate Court denied the contest filed by DHR because it concluded that DHR had failed to prove that the adoption was not in the best interests of J.C. . The Jefferson Probate Court wrote:

“The testimony taken has proven to this Court that it is in the best interest of [J.C.] to have the adoption go forward. [B.V. and D.V.] have been the constant in [J.C.j’s life and have shown a genuine love for him. He was part of their family for nearly 18 years and it is evident that there is a parent-child bond between [J.C.] and [B.V. and D.V.]. [B.V. and D.V.] presented evidence that they are prepared for [J.C.]’s special needs as he grows into adulthood. This court is convinced through the evidence that it is in the best interest of [J.C.] for this Petition of Adoption to be Granted.”

The Jefferson Probate Court did not expressly rule on the contest filed by Henderson, the guardian ad litem appointed by the Macon Juvenile Court, but it impliedly denied that contest by approving the adoption petition. DHR appeals.

The standard by which this court reviews the judgment of a probate court granting an adoption petition is well settled:

“ “Where a probate court hears ore tenus evidence on a petition for adoption, its findings and conclusions based on that evidence are presumed to be correct.’ K.P. v. G.C., 870 So.2d 751, 757 (Ala.Civ.App.2008). The ore tenus presumption of correctness arises because the trial court is in a position to observe the demeanor and behavior of the witnesses and is thus able to evaluate whether their testimony is credible and truthful. Ex parte Fann, 810 So.2d 631, 633 (Ala.2001); Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996). The trial court is able to make personal observations of the witnesses, while an appellate court has the benefit only of a cold transcript of the proceedings. Thus, neither this Court nor the Court of Civil Appeals may reweigh the evidence or sit in judgment of disputed evidence presented ore tenus, Ex parte Bryowsky, 676 Solid at 1324-26, and the trial court’s judgment based on ore ten-us evidence will not be disturbed unless it is palpably wrong, manifestly unjust, or without supporting evidence. Samek v. Sanders, 788 So.2d 872, 876 (Ala.2000).”

Ex parte J.W.B., 933 So.2d 1081, 1087 (Ala.2005).

DHR contends that the adoption proceeding should have been transferred to the -Macon Juvenile Court because, it argues, venue was not proper in the Jefferson Probate Court. Section 26-10A-4, Ala.Code 1975, provides that venue for an adoption petition is proper in the county in. which the person to be.adopted resides, in the county in which a petitioner resides, or in the county in which an office of an agency having custody or guardianship of the person to be adopted is located. In the present case, both the petitioners, B.V. and D.V., reside in Jefferson County. Thus, venue was proper in the Jefferson Probate Court. Citing § 26-10A-24(e), Ala.Code 1975, DHR points out that “a contested adoption hearing may be transferred to the court having jurisdiction over juvenile matters.” However, simply because a probate court “may” transfer a case to a juvenile court does not mean that it “must” do so. DHR’s contention is without merit.

, DHR next contends that the Jefferson Probate Court erred when, on August 21, 2008, it entered an interlocutory order awarding custody of J.C. to B.V. and D.V. pursuant to § 26-10A-18. However, we need not determine whether the Jefferson Probate Court erred when it entered that interlocutory order awarding custody of J.C. to B.V. and D.V. because that order became moot at the time the Jefferson Probate Court entered the final judgment granting B.V. and D.V.’s petition to adopt J.C. See Ex parte A.M.P., 997 So.2d 1008, 1015 (Ala.2008) (“Once the final order of adoption is entered, the interlocutory order becomes moot.”).

DHR next contends that its consent to' the adoption, as well as that of N.C., J.C.’s mother, were necessary and that, because neither consented, the Jefferson Probate Court was precluded from granting B.V. and D.V.’s adoption petition. DHR relies on § 26-10A-7, which, in pertinent part, provides:

“(a) Consent to the petitioner’s adoption or relinquishment for adoption to the Department of Human Resources or a licensed child placing agency shall be required of the following:
“(1) The adoptee, if 14 years of age or older, except where the court finds that the adoptee does not have the mental capacity to give consent;
“(2) The adoptee’s mother;
“(4) The agency to which the adop-tee has been relinquished or which holds permanent custody and which has placed the adoptee for adoption, except that the court may grant the adoption without the consent of the agency if the adoption is in the best interests of the adoptee and there is a finding that the agency has unreasonably withheld its consent; and
“(5) The putative father if made known by the mother or is otherwise made known to the court provided he complies with Section 26-10C-1 and he responds within 80 days to the notice he receives under Section 26-10A-17(a)(10).
“(b) A petition to adopt an adult may be granted only if written consent to adopt has been executed by the adult seeking to adopt and his or her spouse or by the guardian or conservator of the adult sought to be adopted pursuant to the requirements of Sections 26-10A-6 and 26-10A-11.”

Although § 26-10A-7 purports to apply to all adoption proceedings, a more narrow provision regarding necessary consents and applying only to adult adoptions appears in § 26-10A-ll(b). That section reads:

“When the person sought to be adopted is an adult, only the sworn, written consent of the adult person sought to be adopted shall be required and no order of reference or any home studies need be issued. If the adult person to be adopted has been adjudicated incompetent, the written consent of the adult person’s guardian or conservator shall be required. If the adult person is without a spouse, guardian, or conservator and the court has reason to believe that the adult person is incompetent to give consent, the court shall appoint a guardian ad litem who shall investigate the adult person’s circumstances and that guardian ad litem shall give or withhold consent. The guardian ad li-tem shall file a written report stating the basis for the decision and the court shall afford a hearing to all parties to present evidence as to the best interest of the adult person, and if the court determines upon clear and convincing evidence that the decision to withhold consent by the guardian ad litem is arbitrary and is not in the best interests of the incompetent adult person, it may proceed to make any other orders it deems necessary for the adult person’s welfare, including granting the petition for adoption.”

(Emphasis added.) It is a well settled rule of statutory construction that “[w]here statutes in pari materia are general and specific, the more specific statute controls the more general statute.” Crawford v. Springle, 631 So.2d 880, 882 (Ala.1993). Thus, although the general statutory provision relative to adoption proceedings would require in the present case that DHR and J.C.’s mother consent to J.C.’s adoption by B.V. and D.V., the more specific statutory provision found in § 26-10A-ll(b) that applies only to adult adoptions controls this case and provides that only the consent of J.C.’s guardian ad li-tem was required for the adoption. The guardian ad litem appointed by the Jefferson Probate Court provided that consent.

DHR makes a single-sentence, passing reference to the fact that the Macon Probate Court appointed S.C. as J.C.’s guardian and, as a result, that she had standing to oppose J.C.’s adoption. The Jefferson Probate Court determined that S.C. was without standing to oppose J.C.’s adoption, and, based on certain discussions at trial, it appears that the Jefferson Probate Court found that S.C. had not been properly appointed J.C.’s guardian. S.C. did not appeal the Jefferson Probate Court’s conclusion in this regard. DHR, which was unaffected by the Jefferson Probate Court’s conclusion as to S.C.’s rights, is without standing to assert S.C.’s purported rights as J.C.’s guardian. See Ex parte Izundu, 568 So.2d 771, 772 (Ala.1990) (holding that a litigant may not claim standing to assert the rights of a third party). The Jefferson Probate Court’s conclusion that S.C. lacked standing having remained unchallenged by any party with standing to assert such a challenge, we cannot reverse the judgment on the basis that S.C. was required to consent to J.C.’s adoption.

DHR contends that the Jefferson Probate Court erred in entering a final judgment when, it argues, the necessary pre- and post-placement investigations had not been conducted. DHR argues that such investigations are required and that a final order granting an adoption petition cannot be entered until such investigations are completed. However, in the case of an adult adoption such as in the present case, such investigations are not required. See § 26-10A-11(b) (“When the person sought to be adopted is an adult, ... no order of reference or any home studies need be issued.”).

Finally, DHR contends that several of the prerequisites necessary to the granting of B.V. and D.V.’s petition at the disposi-tional hearing were not met. DHR relies on § 26-10A-25(b), which provides:

“At the dispositional hearing, the court shall grant a final decree of adoption if it finds on clear and convincing evidence that:
“(1) The adoptee has been in the actual physical custody of the petitioners for a period óf 60 days, unless for good cause shown, this requirement is waived by the court;
“(2) All necessary consents, relin-quishments, terminations, or waivers have been obtained and, if appropriate, have been filed with the court;
“(3) Service of the notice of pen-dency of the adoption proceeding has been made or dispensed with as to all persons entitled to receive notice under Section 26-10A-17;
“(4) All contests brought under Section 26-10A-24 have been resolved in favor of the petitioner;
“(5) That each petitioner is a suitable adopting parent and desires to establish a parent and child relationship between himself or herself and the adoptee;
“(6) That the best interests of the adoptee are served by the adoption; and
“(7) All other requirements of this chapter have been met.”

DHR argues that there is no evidence indicating that the first, second, fifth, and sixth requirements were met in this case.

As to the first requirement, no party contended at trial that the Jefferson Probate Court should not grant B.V. and D.V.’s adoption petition on the basis that J.C. had not been in B.V. and D.V.’s physical custody for 60 days prior to the hearing. As such, DHR is making this argument for the first time on appeal, and we will not entertain it. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”).

As to the second requirement, that all the necessary consents be obtained, we have already concluded that the only consent necessary to the adoption in this case was that of J.C.’s guardian ad litem appointed by the Jefferson Probate Court for the purpose of the adoption petition. Thus, we conclude that the second requirement was satisfied.

As to the fifth requirement, we conclude that the record contains substantial evidence supporting the Jefferson Probate Court’s determination that B.V. and D.V. were suitable adopting parents and that each already had developed a parent-child relationship with J.C., having had physical custody of J.C. for almost all J.C.’s life and having treated J.C. as their son during that time.

Finally, as to the sixth requirement, we conclude that the record contains substantial evidence supporting the Jefferson Probate Court’s determination that B.V. and D.V.’s adoption of J.C. was in J.C.’s best interests. Without recounting all the evidence set forth previously in this opinion, we note that J.C. has lived almost his entire life with B.V. and D.V., and, as just stated, there was testimony demonstrating that he had an established parent-child relationship with them. In addition, the record contains evidence indicating that J.C. was making educational progress at Hoover High School and that, while he was in the home of B.V. and D.V., he was able to participate in activities as a member of their family. There was evidence indicating that he had formed strong relationships with individuals at Hoover High School, and there was evidence indicating that the weight he had gained while in the custody and care of B.V. and D.V. related to certain medication he was taking and his genetics rather than an inappropriate diet.

To be sure, there was evidence, especially related to J.C.’s weight gain and social and educational advancement, that contradicted the testimony offered by B.V. and D.V. However, it is not the job of this court to reweigh the evidence presented to the Jefferson Probate Court ore tenus, nor is it this court’s function to substitute its view of the evidence for that of the Jefferson Probate Court. See Ex parte J.W.B., 933 So.2d at 1087. Our review of the record leads us to conclude that the Jefferson Probate Court had before it substantial evidence demonstrating that it was in J.C.’s best interest for B.V. and D.V. to adopt him, and, as a result, DHR’s contrary contention is without merit.

Based on the foregoing, we conclude that DHR has failed to provide this court with any ground on which to reverse the Jefferson Probate Court’s judgment. As a result, that judgment is due to be, and is hereby, affirmed.

AFFIRMED.

All the judges concur.

      . Trisomy 18 is a genetic abnormality caused by the presence of extra genetic material on the 18th chromosome.

      . Although DHR litigated this action, the Macon County DHR was the department initially involved with J.C. The county departments of human resources are state agencies. See Ex parte Department of Human Res., 716 So.2d 717, 718 (Ala.Civ.App.1998).
      "The county departments of human resources serve as agents of the State Department of Human Resources; the State Department is empowered to designate the county as its agent and to assist the counties in their various duties when necessary. See § 38-6-2, Ala.Code 1975; Admin. Rules 660-1-2-.01(g) and 660-1-2-.02.”

        State Dep’t of Human Res. v. Estate of Harris, 857 So.2d 818, 819 n. 1 (Ala.Civ.App.2002).

      .The manner of the removal was made the subject of litigation before the Macon Juvenile Court, see B.V. v. Macon County Dep’t of Human Res., 14 So.3d 171 (Ala.Civ.App.2009), and the Montgomery Circuit Court, see B.V. v. Davidson, [Ms. 2081125, June 25, 2010] — So.3d - (Ala.Civ.App.2010).

      . As part of their "best-interest” argument, DHR states that B.V. and D.V., in their foster-care agreement with the Macon County DHR, agreed not to seek the adoption of J.C. without DHR’s written consent. DHR provides no legal authority indicating that such an agreement is binding on the parties or should influence, in any way, the probate court's determination as to whether it should grant B.V. and D.V.'s petition to adopt J.C. Because DHR cites no legal authority in support of its argument, we will not consider it. See White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008) ("Rule 28(a)(10)[, Ala. R.App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If they do not, the arguments are waived.").