author: BRYAN, Judge.

text:
    Edith COOPER v. FEDERAL NATIONAL MORTGAGE ASSOCIATION.
    2090983.
    Court of Civil Appeals of Alabama.
    June 30, 2011.
    Rehearing Denied Feb. 3, 2012.

      Lawrence F. Gardella, Legal Services Alabama, Inc., Montgomery, for appellant.
    Greggory M. Deitsch, R. Ryan Daugherty, and Meaghan E. Ryan of Sirote & Permutt, P.C., Birmingham, for appellee.
   BRYAN, Judge.

Edith Cooper (“Edith”) appeals from a summary judgment in favor of the Federal National Mortgage Association (“Fannie Mae”) in an ejectment action. We affirm.

On November 24, 2003, Edith’s father, Mason Dee Cooper (“Mason”), a widower who owned a house located on Dartmouth Avenue in Bessemer (“the house”), mortgaged the house to Wells Fargo Home Mortgage, Inc. Mason was the sole owner of the house when he executed the mortgage, and he was the only person named as a “Borrower” in the mortgage. Subsequent to the execution of the mortgage, Wells Fargo Bank, N.A. (“the lender”), became the successor by merger to Wells Fargo Home Mortgage, Inc.

The mortgage is a reverse mortgage. Reverse mortgages are designed to enable elderly homeowners to convert the equity in their homes to monthly streams of income or lines of credit. See U.S. Department of Housing and Urban Development, Home Equity Conversion Mortgage Handbook, Dir. No. 4235.1 REV-1 (Nov. 18, 1994) (“HUD Handbook”) at ch. 1-2. “Unlike a traditional ‘forward’ residential mortgage, which is repaid in periodic payments, a reverse mortgage is repaid in one payment, after the death of the borrower, or when the borrower no longer occupies the property as a principal residence.” HUD Handbook at ch. 1-3B. Consequently, Paragraph 9 of the mortgage provided:

“(a) ... Lender may require immediate payment in full of all sums secured by this [mortgage] if:
“(i) A Borrower dies and the [house] is not the principal residence of at least one surviving Borrower; or
“(ii) All of a Borrower’s title in the [house] ... is sold or otherwise transferred .... ”

Although the mortgage required the lender to give Mason notice of default if his title in the house were sold or otherwise transferred, it did not require the lender to give anyone notice of default if Mason died and the house was no longer the principal residence of at least one surviving borrower.

On April 10, 2008, Mason executed a quitclaim deed with respect to the house, which named Edith, who is his sole heir, as the grantee. However, Mason continued to live in the house until he died on May 6, 2008. After Mason’s death, Edith began living in the house.

On January 9, 2009, the lender held a foreclosure sale at the Jefferson County Courthouse in Birmingham. Fannie Mae was the highest bidder at the foreclosure sale, and the auctioneer who conducted the sale executed a foreclosure deed conveying the house to Fannie Mae.

On April 2, 2009, Fannie Mae sued Mason, stating a claim of ejectment and seeking possession of the house. Subsequently, Fannie Mae amended its complaint to add Edith as an additional defendant. Answering, Edith denied the allegations of the complaint and, as affirmative defenses, asserted that Fannie Mae was not entitled to possession of the house because it did not own legal title to the house because of “defective notice,” “defective sale,” and “wrongful foreclosure.”

Fannie Mae moved for a summary judgment on the ground that it owned legal title to the house by virtue of the foreclosure deed. Opposing the summary-judgment motion, Edith asserted, among other things, that Fannie Mae was not entitled to possession of the house because, she said, the foreclosure was wrongful because, she said, (1) the lender had failed to give her the notice of default required by Paragraph 9 of the mortgage and (2) the foreclosure notice published in the newspaper stated that the foreclosure sale would be held at the Jefferson County Courthouse in Birmingham rather than the Jefferson County Courthouse in Bessemer. In addition, she asserted that Fannie Mae was not entitled to a summary judgment because, she said, a genuine issue of material fact existed regarding whether Fannie Mae was entitled to possession of the house.

Following a hearing, the trial court entered a summary judgment in favor of Fannie Mae with respect to its claim against Edith and dismissed the claim against Mason. Thereafter, Edith moved to vacate the judgment, and the trial court denied that motion. Edith then timely appealed to this court. Due to lack of jurisdiction, we transferred the appeal to the supreme court, which transferred the appeal back to this court pursuant to § 12-2-7(6), Ala.Code 1975.

“We review a summary judgment de novo. American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala.2002).

“ ‘We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the non-movant to present substantial evidence creating a genuine issue of material fact. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.’
“Nationwide Prop. & Cas. Ins. Co. [v. DPF Architects, P.C.], 792 So.2d [369] at 372 [ (Ala.2001) ] (citations omitted), quoted in American Liberty Ins. Co., 825 So.2d at 790.”

Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002).

Edith first argues that the trial court erred in entering a summary judgment in favor of Fannie Mae because, she says, the trial court held that she lacked standing to challenge the propriety of the foreclosure sale. First, we note that the trial court did not hold that she lacked standing to challenge the propriety of the foreclosure sale; rather, the trial court held that, because she was not a party to the mortgage, the mortgage did not require the lender to send her the individual notice of the foreclosure sale ■ that the mortgage required the lender to send a borrower who was a party to the mortgage. In pertinent part, the judgment of the trial court stated:

“4. The Court does not find persuasive the arguments of [Edith] that [the lender] did not comply with all requirements of the Mortgage in conducing the foreclosure sale. It appears to the Court that [Fannie Mae] has produced sufficient evidence to prove that all proper notices were provided as required by the Mortgage.... [Edith] was not a party to the Mortgage, or underlying promissory note, but only presents herself before this court as an heir to the mortgagee, who is now deceased. According to the terms of the Mortgage, [Edith] therefore did not have any right to notice under the Mortgage that the sale was about to take place. (Mortgage at [Paragraphs] 16, 20.) The foreclosure sale was properly noticed in a newspaper of general circulation in Jefferson County, Alabama. Constantine v. First Alabama Bank of Birmingham, 465 So.2d 419, 422 (Ala.Civ.App.1984) (It has been held that publication of a foreclosure notice in [the Alabama Messenger] is valid.’)- All proper notices having been given, the sale was proper and conducted in accordance with the terms of the Mortgage.”

(Emphasis added.)

Second, we find no error in the trial court’s holding that, because Edith was not a party to the mortgage, the mortgage did not require the lender to send her the individual notice of the foreclosure sale that the mortgage required the lender to send a borrower who was a party to the mortgage. In pertinent part, Paragraph 20 of the mortgage provides that, “[i]f Lender invokes the power of sale, Lender shall give a copy of a notice to Borrower in the manner provided in Paragraph 16.” It is undisputed that Edith was not named as a borrower in the mortgage. Accordingly, we find no merit in Edith’s first argument.

Edith also argues that the trial court erred in entering a summary judgment in favor of Fannie Mae because, she says, Fannie Mae failed to prove that the lender gave either Mason’s estate or Edith notice of Mason’s default as required by Paragraph 9 of the mortgage. Fannie Mae contends that, before invoking its power of sale, the lender properly delivered a letter dated October 8, 2008 (“the October 3 letter”), to the house notifying Mason’s estate that Mason was in default because he had died, which had resulted in the house not being the principal residence of at least one borrower. Edith contends that the October 8 letter was not delivered to the house. However, Fannie Mae was entitled to a summary judgment regardless of whether the lender delivered the October 3 letter to the house because (1) the default upon which the lender based its acceleration of the debt and its invoking of the power of sale was Mason’s death, which resulted in the house not being the principal residence of at least one borrower and (2) Paragraph 9 of the mortgage does not require the lender to give the borrower notice of such a default. Paragraph 9(a)(i) of the mortgage provides that the lender could require immediate payment of all sums secured by the mortgage if “[a] Borrower dies and the [house] is not the principal residence of at least one surviving Borrower.” However, Paragraph 9(d) of the mortgage does not require the lender to give the borrower notice of a default under Paragraph 9(a)(i). Paragraph 9(d), which states in pertinent part that “Lender shall notify the ... Borrower whenever the loan becomes due and payable under Paragraph 9(a)(ii).... ” (emphasis added), requires the lender to give the borrower notice of a default under Paragraph 9(a) only if the default was under Paragraph 9(a) (ii). Although Edith contends that the October 3 letter was not delivered to the house, she does not contend that it was not written. In pertinent part, the October 3 letter states:

“Our records indicate that the reverse mortgage loan referenced above is in default. Unless the default is cured within 30 days from the date of this notice, it will become necessary to accelerate the Mortgage Note and pursue the remedies provided for in the Mortgage....
“The reason the referenced reverse mortgage is in default is due to the death of all named mortgagors on the Note and Mortgage....”

(Emphasis added.)

Accordingly, because the default upon which the lender based its acceleration of the mortgage and its invoking of the power of sale was Mason’s death, the lender was not obligated to give Mason’s estate notice of that default pursuant to Paragraph 9, and, therefore, Fannie Mae was entitled to a summary judgment regardless of whether the lender delivered the October 3 letter to the house.

Edith next argues that Fannie Mae failed to prove that the October 3 letter was delivered to the house. However, this argument has no merit because, as explained above, Fannie Mae was entitled to a summary judgment regardless of whether the October 3 letter was delivered to the house because (1) the lender based its acceleration of the mortgage and its invoking of the power of sale on Mason’s death, which resulted in the house not being the principal residence of at least one borrower, and (2) Paragraph 9 of the mortgage did not require the lender to give the borrower notice of such a default.

Edith also argues that the trial court erred in entering a summary judgment in favor of Fannie Mae because, she says, the foreclosure sale was held at the Jefferson County Courthouse in Birmingham rather than the Jefferson County Courthouse in Bessemer. She argues that, because the house was located in the Bessemer Division of Jefferson County rather than the Birmingham Division, the foreclosure sale had to be held at the Jefferson County Courthouse in Bessemer rather than the Jefferson County Courthouse in Birmingham. Rejecting that argument, the trial court stated in its judgment:

“5. [Edith] has also argued that the foreclosure sale was improper because it took place at the Birmingham Courthouse when the [house] is located in Bessemer. Pursuant to paragraph 20 of the Mortgage, if the Lender invokes the power of sale, ‘Lender shall publish the notice of sale once a week for three consecutive weeks in a newspaper published in JEFFERSON County, Alabama and thereupon shall sell the [house] to the highest bidder at public auction at the front door of the County Courthouse of this County.’ The lender in this case conducted the foreclosure sale on January 9, 2009, at the Jefferson County Courthouse in Birmingham, which is exactly where the lender advertised the sale to take place.
“6. [Edith] did not cite any cases in her brief on this issue, but at the oral argument on [Fannie Mae’s] motion [Edith] invoked those cases which hold that the Bessemer Cutoff is to be considered a separate jurisdiction for pur-
poses of determining where to file a lawsuit in the circuit court. The Court does not find those cases controlling or even persuasive with regard to the issue before the Court, which does not concern the filing of a judicial action, but instead concerns only the exercise of a non-judicial power of sale given by the mortgagor to the mortgagee in the mortgage. Instead, the Court finds controlling the case of Duncan v. Rudulph, [245 Ala. 175, 176,] 16 So.2d 313, 313 (Ala.1944) (quoting with approval Hall v. Metropolitan Life Ins. Co., [225 Ala. 455, 456-57,] 143 So. 452, 453 (Ala.1932)). The Duncan case does concern the Bessemer Cutoff and specifically addresses whether a sheriffs sale conducted in Birmingham could validly convey Bessemer real property. The only difference between the Duncan case and the present action is that the sale complained of here is not a sheriffs sale, but is a non-judicial foreclosure sale. Regardless, the reasoning of Duncan remains the same; the legislature created the Cutoff to address the holding of Circuit Court in this division and did not address sheriffs sales, foreclosure sales, or other non-judicial acts. Indeed, at least one of the cases relied upon by the Duncan Court, Hall v. Metropolitan Life Ins. Co., [225 Ala. 455, 456-57,] 143 So. 452, 453 (Ala.1932), dealt directly [with] the question before the Court: When a non-judicial foreclosure sale is to be held in a divided county (i.e. a county that has two courthouses), at which courthouse should the foreclosure sale be held?
“7. The Hall case holds that ‘where the mortgage stipulates the sale shall be in front of the courthouse of the county, a sate in front of either courthouse in a county having two courthouses is a compliance with such stipulation, the notice designating at which courthouse the sale will be made.’ Hall v. Metropolitan Life Ins. Co., [225 Ala. 455, 456-57,] 143 So. 452, 453 (Ala.1932) (citing Anniston Pipe Works v. Williams, [106 Ala. 324,] 18 So. 111 (Ala.1895)) (emphasis added here). The mortgage in the present case provided that the sale need only be conducted in this county, meaning Jefferson County. Therefore, because the foreclosure sale notice is consistent with the foreclosure sale being conducted at the Birmingham Division of the Jefferson County Courthouse, the lender properly noticed and conducted the foreclosure sale at the Courthouse in Jefferson County, consistent with the Mortgage and the above cases. See Hall, [225 Ala. 455, 456-57,] 143 So. at 453; Duncan, [245 Ala. at 176-77,] 16 So.2d at 313-14.”

We agree with the trial court’s analysis; therefore, we hold that, given the facts of the present case, the trial court did not err in concluding that the foreclosure sale was not invalid due to its being conducted at the Jefferson County Courthouse in Birmingham rather than the Jefferson County Courthouse in Bessemer.

Finally, Edith argues that the trial court erred in entering a summary judgment in favor of Fannie Mae because, she says, the evidence was in conflict regarding whether the October 3 letter was delivered to the house. However, this argument has no merit because, as explained above, Fannie Mae was entitled to a summary judgment regardless of whether the October 3 letter was delivered to the house because (1) the lender based its acceleration of the mortgage and its invoking of the power of sale on Mason’s death, which resulted in the house not being the principal residence of at least one borrower, and (2) Paragraph 9 of the mortgage did not require the lender to give the borrower notice of such a default.

Because we find no merit in any of Edith’s arguments, we affirm the judgment of the trial court.

AFFIRMED.

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

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

      . Paragraph 9(a)(ii) of the mortgage authorizes the lender to require immediate payment of all sums secured by the mortgage if "[a]ll of a Borrower’s title in the [house] ... is sold or otherwise transferred....”


source: Caselaw Access Project

author: MURDOCK, Justice.

license: Public Domain

text:
    Ex parte Edith COOPER. (In re Edith Cooper v. Federal National Mortgage Association).
    1110587.
    Supreme Court of Alabama.
    May 11, 2012.
    Lawrence F. Gardella, Legal Services Alabama, Montgomery, for petitioner.
   MURDOCK, Justice.

The petition for the writ of certiorari is denied.

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

WRIT DENIED.

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


author: PITTMAN, Judge.

text:
    SOUTHERN UNION STATE COMMUNITY COLLEGE et al. v. Susan SALATTO. Susan Salatto v. Southern Union State Community College et al.
    2091201.
    Court of Civil Appeals of Alabama.
    Oct. 7, 2011.
    As Modified on Denial of Rehearing March 30, 2012.

      Roger L. Bates, Mark T. Waggoner, and Stephen N. Fitts III of Hand Arendall LLC, Birmingham, for appellants/cross-ap-pellees Southern Union State Community College et al.
    William F. Patty of Beers, Anderson, Jackson, Patty & Fawal, P.C., Montgomery; Cecil Gardner of The Gardner Firm, P.C., Mobile; and Samuel H. Heldman of The Gardner Firm, P.C., Washington, D.C., for appellee/cross-appellant Susan Salatto.
   PITTMAN, Judge.

These appeals arise from a judgment entered by the Montgomery Circuit Court concerning the legality of the removal of Susan Salatto from the office of president of Southern Union State Community College (“Southern Union”).

On January 24, 2008, the Alabama State Board of Education (“the Board”) voted to remove Salatto from the office of president of Southern Union over the objection of her counsel, who contended that the removal could not validly occur except under the authority of, and consistent with the terms of, the Fair Dismissal Act, § 36-26-100 et seq., Ala.Code 1975 (“the FDA”). Salatto simultaneously initiated administrative proceedings and a civil action seeking review of the propriety of her removal from office, and she also sought administrative review of Southern Union’s election to treat as ended Salatto’s previous employment at that institution. The two administrative proceedings were consolidated into one proceeding, after which Southern Union and the Board sought dismissal on the claimed bases that the FDA did not apply to Salatto’s employment as president of Southern Union or to her former employment by Southern Union as a dean; those parties also sought a stay of the administrative proceedings pending the outcome of the civil action. The administrative law judge who had been assigned Salatto’s administrative proceedings issued an order on May 23, 2008, declaring that Salatto’s removal as president violated the FDA and that, alternatively, she was entitled to return to work in a previous position that she had held at Southern Union.

The Board, Southern Union, and Southern Union’s president then sought review of the administrative decision in the Montgomery Circuit Court by asserting claims in Salatto’s pending civil action, and those parties also sought a stay of the administrative law judge’s order (which request was denied by the circuit court). Salatto filed a motion seeking a summary judgment in her favor as to her claims and a judgment on the pleadings in her favor as to the counterclaims of the other parties (who opposed Salatto’s motion). On August 24, 2010, the circuit court entered a judgment upholding the decision of the administrative law judge and ordered implementation of that decision, and it denied all other relief sought by the parties.

Southern Union, the Board, and Southern Union’s president have appealed from the circuit court’s judgment upholding the decision of the administrative law judge. Although Salatto has cross-appealed, she does not argue in her brief on appeal that the circuit court’s judgment in her favor was erroneous or adversely affected her interests, and it is well settled that dismissal is appropriate in such circumstances. See Ex parte Jefferson Cnty. Sheriff’s Dep't, 13 So.3d 993, 996 (Ala.Civ.App.2009).

The central issue raised by the parties in this case is whether Salatto’s dismissal as president of Southern Union is governed by the FDA such that she is entitled to the procedural and substantive rights set forth therein. To resolve that issue, we first look to the text and the history of pertinent portions of the FDA. Since its enactment in 1983, the FDA has provided that certain procedures are to be followed when county and city boards of education and two-year educational institutions under the direction of the Board seek to terminate the employment of “employees” of those entities. See Ala.Code 1975, § 36-26-100. Stated another way, for the FDA to apply to a particular person, he or she must be an employee of an entity covered under the FDA. See Holland v. Pearson, 20 So.3d 120, 124 (Ala.Civ.App.2008) (noting that if one is not employed by a covered entity, one would not be an “employee” for FDA purposes).

The position taken in this litigation by Salatto, which was adopted by the administrative law judge in his order and which was later endorsed by the circuit court in its judgment upholding that order, is that Salatto was an employee of Southern Union, which is a two-year educational institution under the direction of the Board, at the time that termination of her employment was sought. That Southern Union is a state-affiliated junior college is beyond doubt. See Ala.Code 1975, § 16-60-130 et seq.; see also Executive Order No. 3 (September 3, 1968) (ratifying state acquisition of the former Southern Union College). However, simply because Salatto served as president of Southern Union does not resolve whether she was an employee of Southern Union.

In analyzing whether a person is an “employee” of a covered entity under the FDA, Alabama courts are guided by “general Alabama law pertaining to employment relationships.” Peterson v. Lowndes Cnty. Bd. of Educ., 980 So.2d 975, 977 (Ala.2007). In Peterson, our supreme court observed that whether particular persons may properly be deemed employees of a covered entity “depends upon the extent to which the [entity] had a right to select and control them while they were employed-” Id. at 978. Peterson also quoted language from Davenport-Harris Funeral Home, Inc. v. Chandler, 38 Ala.App. 463, 466, 88 So.2d 875, 877 (1956), indicating that the right to select the person claimed to be an employee is an indispensable element of an employment relationship. 980 So.2d at 977-78.

What entity holds the right, under Alabama law, to select the president of a two-year college such as Southern Union? Under Alabama law, the authority to make that selection is vested in a single entity: the Board, acting pursuant to the recommendation of the chancellor (ie., chief executive officer) of the Postsecondary Education Department.

“The State Board of Education, upon recommendation of the Chancellor, shall be authorized to:
“(3) Appoint the president of each junior college and trade school, each president to serve at the pleasure of the board.”

Ala.Code 1975, § 16-60-111.4. In DeWitt v. Gainous, 628 So.2d 418, 420 (Ala.1993), the provisions of that statute were held to permit the Board to unilaterally terminate a person’s presidency at a state junior college: “Under ... § 16-60-111.4(8).... the presidents of Alabama’s junior colleges are at-will employees of the Board of Education and serve at the pleasure of the Board.” (Emphasis added.)

Although DeWitt did not involve an FDA challenge to a president’s summary discharge, a subsequent decision of the United States District Court for the Middle District of Alabama did examine the interplay between the FDA and postsec-ondary-education presidents. In Shuford v. Alabama State Board of Education, 978 F.Supp. 1008 (M.D.Ala.1997), aff'd, 152 F.3d 935 (11th Cir.1998) (table), a former technical-college president contended, among other things, that he had been discharged in contravention of due-process principles and asserted that, among other things, the FDA gave him a property interest in his position as president. 978 F.Supp. at 1022-23. After noting the holding in DeWitt, the federal district court rejected the president’s property-entitlement claim, noting that the FDA contained (at that time) an exception from its provisions to the effect that the employment of “ ‘employees who [were] ... otherwise covered by ... [an]other state statute’ ” at the time that the FDA had been originally adopted in 1983 was not intended to be included within the scope of the FDA. 978 F.Supp. at 1024 (quoting Ala.Code 1975, § 36-26-100, as it read in 1997).

Salatto correctly notes that the Alabama Legislature has not remained silent as to this issue since Shuford was decided. In 2002, an amendment to the FDA was enacted that deleted from the FDA the exception pertaining to coverage by “other state statute[s].” Act No. 2002-508, Ala. Acts 2002. In Glass v. Anniston City Board of Education, 957 So.2d 1143 (Ala.Civ.App.2006), we held that an attendance officer employed by a municipal education board was, by virtue of the 2002 amendment to the FDA, entitled to the protections of the FDA despite the existence of other statutes addressing that board’s dismissal powers. Although this court’s interpretation of the 2002 amendment to the FDA in Glass removes the statutory underpinning of Shuford (while not affecting its due-process analysis), Glass did not address DeWitt or mention it in any way, nor did the 2002 amendment alter those provisions of the FDA limiting its scope to, in pertinent part, “persons employed by ... two-year educational institutions under the control and auspices of the State Board of Education.” Ala.Code 1975, § 36-26-100 (emphasis added).

Salatto posits in her principal appellate brief that the only argument that can be properly marshaled against deeming her included within the FDA is that there is a preexisting statute declaring two-year college presidents to be “at-will” employees. However, § 16-60-111.4(3) does not merely address the nature of employment of a two-year college president; it localizes the source of the core employment power of selection as to such presidents in the Board, not the colleges themselves. The Board, although mentioned in § 36-26-100 as controlling two-year educational institutions that are covered entities under the FDA, is not itself a covered entity under the FDA. We noted in Franks v. Jordan, 55 So.3d 1218, 1223 (Ala.Civ.App.2010), that, “unless a particular entity is listed in § 36-26-100, its employees will not be covered by the FDA” and will not have “substantive or procedural employment rights under the FDA.” Thus, the legislature in 2002 acted to eliminate an exclusion that might defeat the right of otherwise-covered “employees” to procedural and substantive protections under the FDA, but it did not by inclusion place any persons employed by other entities, such as the Board, within the category of “employees” under the FDA.

Salatto also contends that the circuit court’s judgment may be upheld on the rationale that she was actually an employee of both the Board and Southern Union. However, Salatto does not demonstrate in her appellate brief that Southern Union, as a public entity, had any right of control over her selection as president or of the means by which she carried out her duties as president. Salatto herself, by statute, was empowered during her presidency to act on behalf of Southern Union to make hiring decisions as to its faculty and staff (albeit according to qualifications prescribed, and regulations adopted, by the Board), see Ala.Code 1975, § 16-60-111.7; however, it is absurd to construe that power to include a legal right of a president to, in effect, hire or fire himself or herself. We agree with the appellants that the legislature has created a chain of command in this area that is simple to fathom — just as the members of the faculty and staff of Southern Union are answerable to its president as to the performance of their duties, the president of Southern Union is answerable to the Board as to the performance of his or her duties. Additionally, that Salatto may have received compensation for her services, and related income-tax documents, under Southern Union’s institutional name does not negate the proposition that, by statute, the Board alone was responsible for Salatto’s'hiring as president and alone controlled the exercise of her duties.

Salatto further contends, and the administrative law judge determined, that her prior employment by Southern Union in various academic roles between 1976 and 2004, when she became interim president of another two-year college, qualified her for rights under the FDA. That argument presupposes that FDA rights, once accrued, cannot be divested by leaving an academic post at a two-year college covered by the FDA for a president’s position at another institution, which position, for the reasons we have stated herein, is necessarily not employment by that institution. Although the legislature has provided, with respect to teachers employed at public elementary and secondary schools who have acquired “continuing service” status, for retention of tenure rights in the event that such teachers are promoted to an administrative or supervisory position, see generally Ala.Code 1975, § 16-24-2, the legislature has elected to delegate the issue of making tenure policy with respect to two-year colleges to the Board, see Ala. Code 1975, § 16-60-111.4(5), and Salatto cites no portion of the FDA or any Board policy that parallels § 16-24-2 in this respect. Simply put, Salatto, on January 24, 2008, had long ceased to be an employee of Southern Union who could claim any FDA rights, and she cannot properly tack on any previous employment experience in qualifying employment to obtain FDA rights in a wholly different area. See Franks, 55 So.3d at 1224.

Our conclusions with respect to the inapplicability of the FDA to Salatto’s employment as president of Southern Union necessarily impact the validity of the administrative law judge’s order that was affirmed by the circuit court. The administrative proceedings initiated by Salatto in an effort to cause rescission of her discharge were initiated under Ala.Code 1975, § 36-26-115, providing for direct appeals to administrative law judges in the event a hearing due under the FDA has been denied; thus, both of her administrative proceedings were implicitly predicated upon the applicability of the FDA to her situation. Because the FDA did not apply to Salatto, however, we must conclude that the administrative law judge did not have jurisdiction to decide the dispute between Salatto and the Board. The circuit court similarly erred in failing to recognize the inapplicability of the FDA to Salatto’s employment as president of Southern Union.

Based upon the foregoing facts and authorities, we reverse the judgment of the circuit court upholding the administrative law judge’s order concluding that Sa-latto was discharged in contravention of the FDA. Further, on the authority of Shuford, supra, we conclude that because Salatto necessarily had no protectable interest in her employment, her constitutional challenges arising from her discharge must necessarily fail as a matter of law; thus, we decline her request to remand as to those issues. We instead reverse the judgment and remand the case for the entry of a judgment dismissing the case and directing the administrative law judge (a) to vacate his order and (b) to dismiss both administrative proceedings initiated by Salatto.

REVERSED AND REMANDED WITH INSTRUCTIONS AS TO THE APPEAL; CROSS-APPEAL DISMISSED.

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

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

      . The Board, Southern Union, and Southern Union’s president petitioned for a writ of mandamus, seeking review of the circuit court’s denial of the stay order; however, this court denied that petition as having been filed beyond the presumptively reasonable time set forth in Rule 21(a), Ala. R.App. P. Ex parte Southern Union State Cmty. Coll., (No. 2071238, October 22, 2008) (Ala.Civ.App.2008).

      . The record reflects that the Board by resolution has adopted a schedule governing salary payments to “personnel” (including presidents) "employed at " (not by ) two-year colleges.

      . Similarly, that Salatto was afforded insurance under the Public Education Employees’ Health Insurance Plan is not material given that the statutory definition of an "employee” for purposes of such coverage is "[a]ny ... person who is employed full-time in any public institution of education,” not by any public institution of education. Ala.Code 1975, § 16 — 25A—1(1) (emphasis added).


author: BOLIN, Justice.

text:
    Ex parte Susan SALATTO. (In re Southern Union State Community College et al. v. Susan Salatto).
    1110876.
    Supreme Court of Alabama.
    May 18, 2012.
    William F. Patty of Jackson, Anderson & Patty, P.C., Montgomery; Cecil Gardner of The Gardner Firm, P.C., Mobile; and Sam Heldman of The Gardner Firm, P.C., Washington, D.C., for petitioner.
   BOLIN, Justice.

The petition for the writ of certiorari is denied.

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

WRIT DENIED.

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


author: THOMPSON, Presiding Judge. MOORE, Judge,

text:
    T.C. v. Mac.M. and Mar.M.
    2100037.
    Court of Civil Appeals of Alabama.
    Nov. 18, 2011.
    Austin Burdick, McCalla, for appellant.
    Lori Ann Frasure of Frasure Law, LLC, Calera, for appellees.
    Andrew D. Wheeler of The Wheeler Firm, LLC, Bessemer, guardian ad litem for A.J.C.
   On Application for Rehearing

THOMPSON, Presiding Judge.

The opinion of September 23, 2011, is withdrawn, and the following substituted therefor.

On February 2, 2010, Mac.M. (“the maternal grandfather”) and Mar.M. (“the maternal grandmother”) filed a petition alleging that A.J.C. (“the child”) was dependent as a result of the drug use of the child’s parents, J.D.C. (“the mother”) and T.C. (“the father”). The maternal grandparents sought an award of custody of the child and an award of supervised visitation for the parents. The maternal grandparents also moved for an award of pendente lite custody of the child pending a determination on their dependency petition. On March 11, 2010, the juvenile court awarded the maternal grandparents pendente lite custody of the child. On March 23, 2010, the juvenile court entered another, more detailed order continuing the award to the maternal grandparents of pendente lite custody of the child and awarding the parents supervised visitation pending a later review hearing.

On April 22, 2010, the child’s guardian ad litem filed a suggestion of death indicating that the mother had died. Shortly thereafter, the father filed a motion to modify the pendente lite award of supervised visitation. On June 9, 2010, the juvenile court entered another pendente lite order continuing custody of the child with the maternal grandparents and denying the father’s motion to modify the award of supervised visitation.

In August 2010, Th.C. and G.C., the child’s paternal grandparents, each moved to intervene in the dependency action, and each sought an award of visitation with the child. Their motions had not been ruled upon by the time the order at issue in this appeal was entered. C.C.S., the child’s paternal aunt, filed a statement in support of the father on a form designated as a “motion to intervene,” but the juvenile court denied that “motion” as not being, in substance, a motion to intervene.

On September 21, 2010, the juvenile court conducted an ore tenus hearing on the issue of the child’s dependency. Much of the evidence at that hearing focused on the maternal grandparents’ allegations that the father abused prescription medications and the father’s denial of those allegations. The juvenile court specified during the hearing that, as an initial matter, it would consider only evidence pertaining to the issue of the child’s dependency. After receiving such evidence, the juvenile court determined that the child was dependent, and it then offered to proceed to receive evidence pertaining to the disposition of the custody of the child. However, the maternal grandparents moved to continue the portion of the hearing pertaining to the disposition of the custody of the child. The juvenile court granted that motion and stated: “I’m going to probably do a pendente lite” order.

On September 22, 2010, the juvenile court entered an order finding the child dependent. The father appealed the September 22, 2010, order to this court.

Although none of the parties has addressed this court’s jurisdiction to consider this appeal, jurisdictional issues are of such importance that this court may take notice of them ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997). As explained in this opinion, we conclude that the September 22, 2010, order is not final and, therefore, that it cannot support the appeal. See Bacadam Outdoor Adver., Inc. v. Kennard, 721 So.2d 226, 229 (Ala.Civ.App.1998) (a nonfinal judgment will not support an appeal).

In this case, the juvenile court’s September 22, 2010, order was entered on a standardized form. On that form, the juvenile court placed a check mark to indicate that the “child [was] found dependent.” A handwritten notation beside that determination states: “[At] time [oí] petition child was dependent pendente lite.” In the September 22, 2010, order, the juvenile court made the following factual determination:

“Court heard testimony as to dependency. After sworn testimony and evidence, the court hereby finds the child ... dependent due [to] inability to discharge parental responsibilities as to [the] child because of use of high amounts of pain medications and muscle relaxers.
“Motion to intervene by [the paternal grandfather was] not served on [the maternal grandparents]. Therefore, [the maternal grandparents’] motion to continue as to disposition is granted. Motions to intervene as to [the paternal grandfather] and [the paternal grandmother] to be heard on 10/12/2010 [at] 10:00 a.m. Pending hearing, [guardian ad litem] to inquire as to [the paternal grandparents] and [paternal aunt] as well as father [to] provide prescriptions.”

(Emphasis added.) At the bottom of the September 22, 2010, order is a handwritten notation by the juvenile court stating: “until 10/12/2010 as orders previously entered.”

This court has explained the circumstances under which a juvenile court’s order or judgment is sufficiently final to support an appeal:

“Although a juvenile court’s orders in a dependency case are, in one sense, never ‘final’ because the court retains jurisdiction to modify its orders upon a showing of changed circumstances, see C.L. v. D.H., 916 So.2d 622 (Ala.Civ.App.2005); Committee Comments, Rule 4, Ala.R.App. P., this court has always treated formal dependency adjudications as final and appealable judgments despite the fact that they are scheduled for further review by the juvenile court.”

D.P. v. Limestone Cnty. Dep’t of Human Res., 28 So.3d 759, 762 (Ala.Civ.App.2009) (holding that an order finding, with regard to the father, that reasonable efforts at reunification were no longer required of the Department of Human Resources was a permanency order that was sufficiently final to support an appeal; that order also expressly left in place previous awards of legal custody incident to dependency findings).

In J.J. v. J.H.W., 27 So.3d 519 (Ala.Civ.App.2008), this court held that an order finding a child dependent and awarding custody to one party was sufficiently final to support the appeal, even though further review of certain motions filed by the parties concerning visitation were scheduled for a later review hearing. This court noted that the order from which the appeal arose “indicates an intent to dispose of all other pending matters,” 27 So.3d at 521, and explained:

“Under our caselaw, a formal determination by a juvenile court of a child’s dependency coupled with an award of custody incident to that determination will give rise to an appealable final judgment even if the custody award is denominated as a ‘temporary’[] award and further review of the ease is envisioned.”

27 So.3d at 522 (emphasis added). See also E.D. v. Madison Cnty. Dep’t of Human Res., 68 So.3d 163, 167 (Ala.Civ.App.2010) (concluding that an order was sufficiently final to support an appeal when it “addressed, among other things, the disposition of the child pursuant to the juvenile court’s finding of dependency”).

In C.L. v. D.H., 916 So.2d 622 (Ala.Civ.App.2005), this court concluded that an initial custody order was a pendente lite order but that a subsequent order from which the appeal arose was sufficiently final to support the appeal. This court explained:

“A pendente lite order is one made pending the litigation. See Ex parte J.P., 641 So.2d 276 (Ala.1994) (custody case); Rich v. Rich, 887 So.2d 289 (Ala.Civ.App.2004) (plurality opinion) (discussing the definition and nature of a ‘pendente lite’ order in a custody case), quoted with approval in Hodge v. Steinwinder, [919] So.2d [1179, 1182-83] (Ala.Civ.App.2005); and Trevino v. Blinn, 897 So.2d 358, 360 (Ala.Civ.App.2004) (Crawley and Murdock, JJ., dissenting) (relied upon in Hodge v. Steinwinder, [919] So.2d [1179]). It is an order made pending the adjudication of the existing case, i.e., the extant facts. Id.
“It is true that the juvenile court entered a pendente lite order, but the order entered on May 28, 2004, was not it. The juvenile court entered a pendente lite order on January 9, 2004, awarding custody of the child pending the trial of the case. In that same order, the court set the trial for March 23, 2004. The court later reset the trial for May 7, 2004.
“After the parties had had the opportunity to conduct appropriate discovery and otherwise prepare for trial, the court conducted the scheduled trial, received the evidence pertinent to the issue of the child’s dependency, and heard the arguments of both parties. It thereupon found the child dependent and entered its May 28, 2004, judgment transferring primary physical custody of the child to the maternal grandmother....
“The setting of the case for a ‘review’ approximately four months later does not make the juvenile court’s May 28 judgment a pendente lite order. The juvenile court’s judgment does not indicate that the purpose of the September 2004 ‘review’ hearing would be to finish receiving evidence as to the extant facts as of May 2004. To the contrary, the record and the juvenile court’s May 28 judgment fully indicate that it had already heard that evidence and was entering a judgment based thereon. Instead, the judgment indicates that the juvenile court would at its ‘review’ consider a modification of the custody of the child based on whatever new facts might come into existence between the time the juvenile court entered its judgment on May 28, 2004, and the scheduled ‘review' on September 15, 2004. Cf. Hodge v. Steinwinder, [919] So.2d [1179] (holding that the issue of the finality of an order in a child-custody case was controlled by the fact that the trial court’s judgment was final as to the facts presented at trial and would only be modified in the event that new facts subsequently developed justifying a modification of that judgment).
“In other words, the setting of the September ‘review’ hearing was not a function of a need for the parties to complete the gathering and presentation to the court of the evidence of the facts already in existence. The court’s expressed willingness to consider a change in the custodial placement of the child was made in contemplation of new facts — i.e., developments in the lives of the mother and the child and their relationship that might occur after the court entered its order.
“Consistent with the well-established principle that an adjudication of dependency and an accompanying custodial placement of a child in a dependency proceeding is an appealable order, the juvenile court in the present case stated in its May 28, 2004, judgment that ‘any party may appeal this decision within 14 days.’ The juvenile court was right. We therefore proceed to consider this appeal on its merits.”

916 So.2d at 624-26 (second emphasis added).

In this case, at the close of the September 21, 2010, hearing, the juvenile court expressly stated that it did not intend to determine the issue of the disposition of the child at that time. The juvenile court’s subsequent order, entered on September 22, 2010, was not final because it did not contain a dependency finding “coupled with an award of custody incident to that determination.” J.J. v. J.H.W., 27 So.3d at 522. The only portion of the September 22, 2010, order that could be said to address custody is the handwritten provision: “until 10/12/2010 as orders previously entered.” Thus, the juvenile court left in place its award of pendente lite custody of the child to the maternal grandparents. We therefore conclude that the September 22, 2010, order was an interlocutory order not capable of supporting the father’s appeal.

We note that the appropriate method of seeking appellate review of an interlocutory order is the filing of a petition for a writ of mandamus. The father has not sought mandamus relief in this court. See G.B. v. State Dep’t of Human Res., 959 So.2d 1116 (Ala.Civ.App.2006) (parents did not seek a writ of mandamus pertaining to a nonfinal order, and, therefore, the appeal was dismissed); and Amberson v. Long, 998 So.2d 1078, 1079 (Ala.Civ.App.2008) (same). Further, the juvenile court indicated that it intended to receive certain additional evidence at another hearing. Therefore, it appears that, under the facts of this case, review by way of a petition for a writ of mandamus might even be premature.

The dissent asserts that recent changes in the current Alabama Juvenile Justice Act (“the new AJJA”), § 12-15-101 et seq., Ala.Code 1975, which replaced the former Alabama Juvenile Justice Act (“the former AJJA”), former § 12-15-1 et seq., Ala.Code 1975, as of January 1, 2009, indicate that this court may consider appeals from nonfinal orders; the dissent relies on differences between the former AJJA and the new AJJA as support for that contention. The section of the former AJJA that, according to its title, authorized appeals of juvenile court “judgments, orders, etc.,” provided for an appeal of a “final order, judgment or decree of the juvenile court” to the circuit court for a trial de novo, and it set forth a detailed procedure for such appeals. Former § 12-15-120, Ala.Code 1975 (amended and renumbered as § 12-15-601, Ala.Code 1975). The new AJJA also contains a provision authorizing appeals from the juvenile court; section. 12-15-601, Ala.Code 1975, provides:

“A party, including the state or any subdivision of the state, has the right to appeal a judgment or order from any juvenile court proceeding pursuant to this chapter. The procedure for appealing these cases shall be pursuant to rules of procedure adopted by the Supreme Court of Alabama. All appeals • from juvenile court proceedings pursuant to this chapter shall take precedence over all other business of the court to which the appeal is taken.”

The dissent relies on the portion of § 12-15-601 that provides for “the right to appeal a judgment or order” from a juvenile court to assert that, “by deleting [from former § 12-15-120] the word ‘final,’ the legislature intended to change the law so as to allow appeals from orders entered by the juvenile court that do not completely end the proceedings.” 96 So.3d at 122 (Moore, J., dissenting). However, a fundamental rule in construing a statute in order to effect the intent of the legislature is that the statute as a whole be examined, rather than “ ‘ “ ‘isolated phrases or clauses.’ ” ’ ” Fluker v. Wolff, 46 So.3d 942, 953 (Ala.2010) (quoting Bright v. Calhoun, 988 So.2d 492, 497 (Ala.2008), quoting in turn City of Bessemer v. McClain, 957 So.2d 1061, 1074 (Ala.2006), quoting in turn Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378, 1380 (Ala.1979)). Moreover, “[t]he Legislature is presumed to be aware of existing law and judicial interpretation when it adopts a statute.” Carson v. City of Prichard, 709 So.2d 1199, 1206 (Ala.1998).

In making its argument, the dissent fails to recognize the new AJJA’s requirement that the rules of procedure adopted by the Alabama Supreme Court shall govern the procedure for appeals from the juvenile court. See § 12-15-601 (“The procedure for appealing these cases shall be pursuant to rules of procedure adopted by the Supreme Court of Alabama.”). Those rules of procedure referenced in § 12-15-601 include Rule 4(a)(1), Ala. R.App. P. (providing for an appeal within 14 days of “any final order or judgment issued by a juvenile court”), and Rules 20 and 28, Ala. R. Juv. P., discussed below.

In 1982, several years after the enactment of former § 12-15-120, our supreme court amended Rule 20, Ala. R. Juv. P., and Rule 28, Ala. R. Juv. P.; those amendments allowed direct appeals to an appel-

late court from a juvenile court when an adequate record of the juvenile court’s proceedings existed. See Comment to Amendment Effective November 15, 1985, Rule 28, Ala. R. Juv. P.; Wright v. Montgomery Cnty. Dep’t of Pensions & Sec., 423 So.2d 256, 256-57 (Ala.Civ.App.1982) (“Rule 20 requires each juvenile proceeding to be recorded so that a record of the proceedings can be made for appeal. This makes it unnecessary to first appeal to the circuit court for a trial de novo as was done before the [1982] amendments.”); see also Ex parte Webb, 843 So.2d 127, 129-30 (Ala.2002) (recognizing the amendment to Rule 28 as authorizing direct appeals from the juvenile court to an appellate court); and Ex parte State, 700 So.2d 1369, 1371 n. 2 (Ala.1997) (“Until 1982, all appeals from juvenile court were to the circuit court. Ala.Code 1975, § 12-15-120. However, a 1982 amendment to Rule 20 of the Rules of Juvenile Procedure provided for the recording of testimony in the juvenile court. Rule 28 was amended at the same time to allow appeals directly to an appellate court when an adequate record existed.”). In addition to providing for the procedure for appeals of “final orders, judgments, or decrees” of the juvenile court, the 1982 amendments to Rule 28, Ala. R. Juv. P., encompassed many of the provisions of former § 12-15-120 with regard to the procedure for appeals from a juvenile court to a circuit court. Compare Rule 28, Ala. R. Juv. P., and former § 12-15-120 (amended and renumbered as § 12 — 15— 601, Ala.Code 1975). Our appellate courts have recognized that Rule 28, Ala. R. Juv. P., governs the procedure for appeals from the juvenile court. Ex parte Webb, supra; Ex parte State, supra; see also G.H. v. Cleburne Cnty. Dep’t of Human Res., 62 So.3d 540, 541 (Ala.Civ.App.2010) (“because the juvenile-court judge certified the record as adequate for appellate review, we have appellate jurisdiction pursuant to Rule 28(A)(1), Ala. R. Juv. P.”); and In re 860 So.2d 1281 (Ala.Civ.App.2003) (discussing Rule 28, Ala. R. Juv. P.). In Wright v. Montgomery County Department of Pensions & Security, 423 So.2d at 257, this court observed that “[R]ule 28 supersedes Ala.Code [1975, former] § 12-15-120. Rule 28 now governs appellate procedure from juvenile court.”

The enactment of the new AJJA did not alter the procedure, set forth in the court rules adopted by our supreme court, by which appeals from the juvenile court are taken. The legislature, in enacting § 12-15-601, provided for an appeal of a “judgment or order” of the juvenile court, but it specified that such an appeal remains governed by the procedure established by the rules adopted by the supreme court, such as Rule 28, Ala. R. Juv. P. The legislature is presumed to know of the supreme court’s enactment of Rule 28, Ala. R. Juv. P., as well as the appellate courts’ interpretations of that rule as governing appeals from juvenile courts and allowing direct appeals of final orders and judgments of the juvenile court to an appellate court. Carson v. City of Prichard, supra. There is no indication in the new AJJA that the legislature intended to modify the procedure set forth in the Rules of Juvenile Procedure or to create a right of appeal of nonfinal orders of the juvenile courts. Construing § 12-15-601 as a whole, see Fluker v. Wolff, supra, it is clear that the legislature, in enacting the new AJJA, did not alter the procedure for appeals from the juvenile court to allow for appeals from nonfinal orders of the juvenile court; rather, it left in place the well established procedure by which final orders and judgments of the juvenile court may be appealed. Thus, Rule 28, Ala. R. Juv. P., continues to govern the detailed procedure for appeals from the juvenile court, and that rule expressly authorizes appeals only from “final orders, judgments, or decrees of the juvenile court.”

We conclude that the enactment of the new AJJA did not alter the law that appeals from a juvenile court must be from a judgment or an order that is sufficiently final to support an appeal. The September 22, 2010, order at issue in this appeal is not such an order. Accordingly, we dismiss the appeal as having been taken from a nonfinal judgment. However, on remand, the juvenile court is instructed to conduct, as expeditiously as possible, the dispositional portion of the dependency hearing and enter a judgment on the evidence adduced at that proceeding.

APPLICATION FOR REHEARING OVERRULED; OPINION OF SEPTEMBER 23, 2011, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.

PITTMAN and THOMAS, JJ., concur.

MOORE, J., dissents, with writing, which BRYAN, J., joins.

MOORE, Judge,

dissenting.

I respectfully dissent.

The current Alabama Juvenile Justice Act (“the AJJA”), § 12-15-101 et seq., Ala. Code 1975, contemplates that dependency proceedings are to be conducted in two phases. In the first phase, known as the “adjudicatory hearing,” see § 12-15-310(a), Ala.Code 1975, the juvenile court decides whether a child, is dependent. In the second phase, known as the “disposi-tional hearing,” see § 12-15-311(a), Ala. Code 1975, the juvenile court determines the custodial setting that would serve the best interests of the child. The AJJA authorizes juvenile courts to “proceed immediately” from the first phase to the second, but it also allows juvenile courts to postpone the dispositional hearing for a “reasonable period” in some cases. See § 12-15-311, Ala.Code 1975. Consistent with the foregoing procedure, in this case, the Bessemer Division of the Jefferson Juvenile Court (“the juvenile court”) conducted an adjudicatory hearing and entered a judgment on September 22, 2010, finding the child dependent and postponing the dispositional hearing until October 12, 2010, leaving “pendente lite” custody of the child with Mac.M. and Mar.M., the child’s maternal grandparents. The preliminary question before this court is whether the September 22, 2010, judgment is a judgment that will support an appeal.

Section 12-15-601, Ala.Code 1975, a part of the AJJA, provides:

“A party ... has the right to appeal a judgment or order from any juvenile court proceeding pursuant to this chapter. The procedure for appealing these cases shall be pursuant to rules of procedure adopted by the Supreme Court of Alabama. All appeals from juvenile court proceedings pursuant to this chapter shall take precedence over all other business of the court to which the appeal is taken.”

Section 12-15-601 specifically allows for the appeal of “a judgment or order ” from “any juvenile court proceeding.” Section 12-15-601 does not state that appeals may lie only from “final judgments” entered by juvenile courts. In that regard, § 12-15-601 substantially modifies prior law. Under the former version of the AJJA, former § 12-15-120, Ala.Code 1975, provided for appeals solely from “a final order, judgment or decree of the juvenile court....” (Emphasis added.) This court must presume that, by deleting the word “final,” the legislature intended to change the law so as to allow appeals from orders entered by the juvenile court that do not completely end the proceedings. See Glass v. Anniston City Bd. of Educ., 957 So.2d 1143, 1147 (Ala.Civ.App.2006) (holding that amendment to statute that excludes prior terms should be construed as demonstrating legislature’s intention to modify prior law).

In that regard, I believe our legislature has made a wise decision. Juvenile courts routinely make determinations that seriously impact the fundamental rights of parents and children of this state to free association with one another. See Jackson v. Jackson, 999 So.2d 488, 494 (Ala.Civ.App.2007) (plurality opinion as to issue of visitation). Such orders demand immediate appellate review, as this court has previously recognized. See D.P. v. Limestone Cnty. Dep’t of Human Res., 28 So.3d 759, 764 (Ala.Civ.App.2009) (“If the order addresses crucial issues that could result in depriving a parent of the fundamental right to the care and custody of his or her child, whether immediately or in the future, the order is an appealable order.”). If the juvenile court has overreached in separating the family, that error should be promptly corrected so as to minimize the harm to the family unit; if the juvenile court has acted properly, immediate appellate approval ends any uncertainty that may cloud further proceedings and jeopardize the stability of the child. The issues at stake in juvenile-court proceedings are too important for appellate review to depend on legal technicalities such as whether the judgment would be considered “final” if it was entered in a simple civil action. This court has no authority to question the wisdom of the legislature on this point; instead, we must adhere to its decision. See Friday v. Ethanol Corp., 539 So.2d 208, 211 (Ala.1988) (“All questions of propriety, wisdom, necessity, utility, and expediency are exclusively for the Legislature to determine and are matters with which the courts have no concern.”).

BRYAN, J., concurs.

      . Although the March 23, 2010, order purports to award the maternal grandparents "custody” of the child, it is clear from subsequent orders scheduling a dependency hearing and from the juvenile court's comments during the dependency hearing that the March 23, 2010, order was a pendente lite custody order.

      . A "temporary” custody award, as opposed to a pendente lite custody award, will support an appeal. See Ex parte J.P., 641 So.2d 276, 278 (Ala.1994) (explaining the difference between “temporary” custody awards and pen-dente lite custody awards and stating that "the language used by the courts can be confusing, especially the language speaking of a temporary award of custody as a final order, as opposed to a pendente lite order, which is not a final order”); see also T.J.H. v. S.N.F., 960 So.2d 669, 672 (Ala.Civ.App.2006) (same).

      . Section § 12-15-601 also provides that "appeals from juvenile court proceedings ... shall take precedence over all other business of the court to which the appeal is taken.” That provision, together with the Rules of Juvenile Procedure providing shortened time limitations for the consideration of post-judgment motions and for taking an appeal in juvenile cases, are designed to hasten the progress of appeals in juvenile cases, which is consistent with the goal of the new AJJA to reunite parents and children as quickly as possible. See § 12-15-101, Ala.Code 1975. Allowing appeals from nonfinal orders, as the dissent advocates, would slow the resolution of juvenile cases. Further, it is foreseeable that a party could appeal every nonfinal order as a dilatory tactic to divest the juvenile court of jurisdiction and impede its ability to act while the matter is on appeal. See R.H. v. J.H., 778 So.2d 839, 841-42 (Ala.Civ.App.2000) (a notice of appeal from a nonfinal order divested the juvenile court of jurisdiction to enter further orders in the action, so subsequent orders were nullities).

      . Rule 28, Ala. R. Juv. P., states, in pertinent part:
      "(A) Direct Appeals to Appellate Courts.
      "(1) Appeals from final orders, judgments, or decrees of the juvenile court shall be to the appropriate appellate court, subject to the Alabama Rules of Appellate Procedure, if:
      "[Listing requirements for appeal to appellate court.]
      "(2) If the appeal provided in this subsection is taken from a final order, judgment, or decree in a case or proceeding arising out of the jurisdiction of the juvenile court over a child ... the appropriate appellate court for purposes of appeal shall be[, depending on the circumstances, either the Court of Criminal Appeals or the Court of Civil Appeals].
      "(B) Appeals to Circuit Court. Appeals from final orders, judgments, or decrees in all other cases ... shall be to the circuit court for trial de novo.... ”

      . The main opinion posits that, although the legislature deleted the word "final” from the first sentence of § 12-15-601, the legislature, by referring to the rules of procedure adopted by our supreme court, which include the Rules of Juvenile Procedure, in the second sentence, intended nevertheless that appeals would lie only from final judgments. If true, that would mean that the legislature used the most convoluted manner possible of maintaining the finality requirement, removing it in the first sentence only to revive it in the next, and then only by incorporation by reference. I believe the two sentences must be read more straightforwardly. The first sentence obviously deletes the finality requirement contained in the former AJJA and the current Rules of Juvenile Procedure and establishes that all orders or judgments of the juvenile court will support an appeal. The second sentence merely prescribes that the method for appealing from such orders or judgments shall be in accordance with the rules of procedure adopted by our supreme court. That construction gives full effect to both the first and the second sentences, without placing them in conflict, as the interpretation by the main opinion does.


author: BOLIN, Justice. MURDOCK, Justice

text:
    Ex parte T.C. (In re T.C. v. Mac.M. and Mar.M.).
    1110250.
    Supreme Court of Alabama.
    May 25, 2012.

      Austin Burdick, H. Emmanuel Scozzaro, Jr., and Kewana J. Smith of Scozzaro, Burdick & Smith, PLLC, Bessemer, for petitioner.
    Lori Ann Frasure of Frasure Law, LLC, Calera, for respondents Mac. M. and Mar. M.
    Andrew D. Wheeler of The Wheeler Law Firm, LLC, Bessemer, guardian ad litem for A.J.C.
   BOLIN, Justice.

We granted T.C.’s writ of certiorari to review an issue of first impression, the interpretation of § 12-15-601, Ala.Code 1975, a part of the 2008 Alabama Juvenile Justice Act, which became effective January 1, 2009 (“the 2008 AJJA”). Specifically, the question is whether the 2008 AJJA provides for an appeal from an interlocutory order.

On February 2, 2010, Mac. M. (“the maternal grandfather”) and Mar. M. (“the maternal grandmother”) (collectively “the maternal grandparents”) filed a petition alleging that A.J.C. (“the child”) was dependent as a result of the drug use of the child’s parents, J.D.C. (“the mother”) and T.C. (“the father”). The maternal grandparents sought custody of the child and supervised visitation for the parents. The maternal grandparents also moved for an award of pendente lite custody of the child pending a determination on their dependency petition. On March 11, 2010, the juvenile court issued an order awarding the maternal grandparents pendente lite custody of the child and ordering the Department of Human Resources to complete home studies on both the parents and the maternal grandparents. The mother was allowed supervised visitation, and an attorney was appointed to represent her. On March 23, 2010, the trial court held a preliminary hearing. On March 25, 2010, the juvenile court entered another more detailed order continuing the award of pendente lite custody of the child to the maternal grandparents and awarding the mother and the father supervised visitation pending a hearing on dependency. An attorney was appointed to represent the father. On April 22, 2010, the child’s guardian ad litem filed a suggestion of death indicating that the mother had died. Shortly thereafter, the father filed a motion to modify the supervised-visitation award in the juvenile court’s March 25 order. On June 10, 2010, the juvenile court entered another pendente lite order continuing custody of the child with the maternal grandparents and denying the father’s motion to modify that aspect of the order awarding supervised visitation.

In August 2010, Th. C and G.C., the child’s paternal grandparents, each moved to intervene in the dependency action, and each sought visitation with the child. The juvenile court had ruled on their motions at the time the order at issue in this appeal was entered. C.C.S., the child’s paternal aunt, filed a statement in support of the father on a form designated as a “motion to intervene,” but the juvenile court denied that “motion” as not being, in substance, a motion to intervene.

On September 21, 2010, the juvenile court conducted an ore tenus hearing on the issue of the child’s dependency. The hearing focused on the maternal grandparents’ allegations that the father abused prescription medications and that he was unable to care for the child. The juvenile court specified during the hearing that, as an initial matter, it would consider evidence pertaining only to the issue of the child’s dependency. After receiving such evidence, the juvenile court determined that the child was dependent, and it then offered to receive evidence pertaining to the issue of the custody of the child. However, the maternal grandparents moved to continue the portion of the hearing pertaining to custody because they had not been served with the motion to intervene filed by the paternal grandfather. The juvenile court granted that motion and stated: “I’m going to probably do a pen-dente lite” order.

On September 22, 2010, the juvenile court entered an order finding the child dependent based on the father’s use of high amounts of prescription pain medication and his inability to discharge his parental responsibilities. The order was entered on a standardized form, and, on that form, the juvenile court placed a check mark to indicate that “the child [was] found dependent.” A handwritten notation beside that determination states: “[At] time [of] petition child was dependent pendente lite.” In the September 22, 2010, order, the juvenile court stated:

“Court heard testimony as to dependency. After sworn testimony and evidence, the court hereby finds the child ... dependent due [to] inability to discharge parental responsibilities as to [the] child because of use of high amounts of pain medications and muscle relaxers.
“Motion to intervene by [the paternal grandfather was] not served on [the maternal grandparents]. Therefore, [the maternal grandparents’] motion to continue as to disposition is granted. Motions to intervene as to [the paternal grandfather] and [the paternal grandmother] to be heard on 10/12/2010 [at] 10:00 a.m. Pending hearing, [guardian ad litem] to inquire as to [the paternal grandparents] and [paternal aunt] as well as father [to] provide prescriptions.”

(Emphasis added.) At the bottom of the September 22, 2010, order is another handwritten notation by the juvenile court stating: “until 10/12/2010 as ordered as previously entered.”

The father timely appealed the September 22, 2010, order to the Court of Civil Appeals. That court dismissed the appeal as being from a nonfinal judgment. The father moved to set aside the dismissal, and his motion was granted. In its subsequent opinion, a majority of the Court of Civil Appeals held that the juvenile court’s September 22, 2010, order was a nonfinal judgment that would not support an appeal. T.C. v. Mac. M., 96 So.3d 115 (Ala.Civ.App.2011). The father then sought certiorari review from this Court on the ground that the case presented an issue of first impression as to the interpretation of § 12-15-601 and on the ground that the Court of Civil Appeals’ opinion conflicted with caselaw; both grounds concerned the issue whether the juvenile court’s September 22, 2010, order was a final order. We granted certiorari review solely on the ground of first impression.

Analysis

Section 12-15-601, Ala.Code 1975, a part of the 2008 AJJA, provides:

“A party, including the state or any subdivision of the state, has the right to appeal a judgment or order from any juvenile court proceeding pursuant to this chapter. The procedure for appealing these cases shall be pursuant to rules of procedure adopted by the Supreme Court of Alabama. All appeals from juvenile court proceedings pursuant to this chapter shall take precedence over all other business of the court to which the appeal is taken.”

The former AJJA, § 12-15-1 et seq., Ala.Code 1975, became effective in 1977. It governed “the care, protection, and discipline of children who came within the jurisdiction of the juvenile court, while acknowledging the responsibility of the juvenile court to preserve the public peace and security.” § 12-15-1.1, Ala.Code 1975 (amended and renumbered as § 12-15-101, Ala.Code 1975). The former AJJA, like the 2008 AJJA, governed both juvenile delinquency (criminal in nature) and the dependency of children (civil in nature). Section 12-15-120 of the former AJJA (amended and renumbered as § 12-15-601 by the 2008 AJJA) regarding appeals provided:

“(a) An aggrieved party, including the state or any subdivision of the state, except in criminal cases, delinquency cases and in need of supervision cases, may appeal from a final order, judgment or decree of the juvenile court to the circuit court by filing written notice of appeal -within 14 days after the entry of the order, judgment or decree. All appeals under this chapter shall take precedence over all other business of the court to which the appeal is taken.
“(b) Upon appeal, the circuit court shall try the case de novo and shall proceed to render such judgment as is otherwise provided for by law in such cases.
“(c) Upon the rendition of such judgment, the circuit court shall cause to be filed with the juvenile court a copy of its judgment which shall thereupon become the judgment of the juvenile court. If the circuit court does not dismiss the proceedings and discharge the child, it shall remand the child to the jurisdiction of the juvenile court for supervision and care under the terms of the judgment of the circuit court, and thereafter the child shall be and remain under the jurisdiction of the juvenile court in the same manner as if the juvenile court had rendered the judgment in the first instance.
“(d) The appeal shall not stay the order, judgment or decree appealed from but the circuit court may otherwise order, on application and hearing consistent with this chapter, if suitable provision is made for the care and custody of the child. If the order, judgment or decree appealed from grants the custody of the child to or withholds it from one or more of the parties to the appeal, it shall be heard at the earliest time practicable.
“(e) When a case has been entrusted to the circuit court docket in the first instance as provided in Section 12-15-3, appeal shall lie therefrom in conformance with procedures promulgated by the Supreme Court.”

In short, under the former AJJA proceedings in the juvenile court were not recorded; therefore, a trial de novo in the circuit court was necessary so that a record could be prepared for an appellate forum. To address that situation, this Court, in 1982, amended Rule 20, Ala. R. Juv. P., and Rule 28, Ala. R. Juv. P. Rule 20 was amended to require all juvenile court proceedings to be recorded so that a record of the proceedings could be preserved for appeal. Rule 28 was amended to provide for appeals from the juvenile court to the appropriate appellate court. As we noted in the comments to subsequent amendments to Rule 28, the purpose of amending Rule 20 and Rule 28 was to reconcile former § 12-15-120 and § 12-11-30(3) (which provided, respectively, that appeals from the juvenile court were to the circuit court for a trial de novo and that the circuit courts exercised appellate jurisdiction over district court juvenile cases) with § 12-12-72 (which provided that appeals shall lie directly from the district court to the appropriate appellate court in certain instances). See Comment to Amendment Effective November 15, 1985, Rule 28, Ala. R. Juv. P. “Until 1982, all appeals from juvenile court were to the circuit court. Ala.Code 1975, § 12-15-120. However, a 1982 amendment to Rule 20 of the Rules of Juvenile Procedure provided for the recording of testimony in the juvenile court. Rule 28 was amended at the same time to allow appeals directly to the appellate court when an adequate record existed.” State ex rel. S.L. v. S.W., 700 So.2d 1369, 1371 n.2 (Ala.1997).

The 2008 AJJA revised, reorganized, and repealed parts of the former AJJA. The 2008 AJJA also amended and renumbered the provisions of the 1984 Child Protection Act (former § 26-18-1 et seq., Ala.Code 1975), which governed actions pertaining to the termination of parental rights. In 2009, this Court amended the Alabama Rules of Juvenile Procedure to be consistent with the 2008 AJJA. We note that Rule 28, Ala. R. Juv. P., which provides for direct appeals to an appellate court “from final orders, judgments, or decrees of the juvenile court,” was amended to the extent that Code sections referenced in the rule would be consistent with 2008 AJJA.

The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute being construed. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). “In construing the statute, this Court should gather the intent of the legislature from the language of the statute itself, if possible.... We may also look to the reason and necessity for the statute and the purpose sought to be obtained by enacting the statute.” Pace v. Armstrong World Indus., Inc., 578 So.2d 281, 283 (Ala.1991).

“If possible, the intent of the legislature should be gathered from the language of the statute itself. However, if the statute is ambiguous or uncertain, the Court may consider conditions that might arise under the provisions of the statute and examine the results that will flow from giving the language in question one particular meaning rather than another.”

Volkswagen of America, Inc. v. Dillard, 579 So.2d 1301, 1305 (Ala.1991).

Section 12-15-601 of the 2008 AJJA comprises three sentences. The father argues that the legislature’s omission of the word “final,” which was in former § 12-15-120, from § 12-15-601 allows appeals from interlocutory orders. For the reasons set out below, we disagree. The first sentence of § 12-15-601 provides for an appeal of “a judgment or order from any juvenile court proceeding pursuant to this chapter.” (Emphasis added.) Its predecessor, former § 12-15-120, provided for appeals in juvenile court cases except in “criminal cases, delinquency cases and in need of supervision cases.” Clearly, by amending the language of § 12-15-120, the legislature intended to allow an appeal from “any juvenile proceeding,” including criminal cases, delinquency cases, and children-in-need-of-supervision cases. Nothing indicates that allowing an appeal from “any juvenile court proceeding” would allow an appeal from an interlocutory order.

The second sentence of § 12-15-601 provides that “[t]he procedure for appealing these cases shall be pursuant to rules of procedure adopted by the Supreme Court of Alabama.” As noted earlier in the opinion, former § 12-15-120 provided for an appeal to the circuit court for a trial de novo so that a record could be made and then an appeal from the circuit court would “lie therefrom in conformance with procedures promulgated by the Supreme Court.” Subsequently, this Court amended the Alabama Rules of Juvenile Procedure to provide for a record to be made in the juvenile court so that a direct appeal could be had to the appellate court. Those amendments to the Rules of Juvenile Procedure did away with the requirement that the circuit court conduct a trial de novo on the same facts as heard by the juvenile court for the sole purpose of making a record for appeal, and the amendments further shortened the time for appellate review. This is consistent with the goal of both the former AJJA and the 2008 AJJA in reuniting parents and children as quickly as possible. As the Court of Civil Appeals stated in its opinion dismissing the father’s appeal: “[T]he legislature, in enacting the [2008] AJJA, did not alter the procedure for appeals from the juvenile court to allow for appeals from nonfinal orders of the juvenile court; rather, it left in place the well established procedure by which final orders and judgments of the juvenile court may be appealed. Thus, Rule 28, Ala. R. Juv. P., continues to govern the detailed procedure for appeals from the juvenile court, and that rule expressly authorizes appeals only from ‘final orders, judgments, or decrees of the juvenile court.’ ” 96 So.3d at 115.

The third sentence of § 12-15-601 provides that “[a]ll appeals from juvenile court proceedings ... shall take precedence over all other business of the court to which the appeal is taken.” Similarly, former § 12-15-120 also provided that appeals from juvenile court proceedings take precedence over the other business of the court to which the appeal is taken. It is clear from the former AJJA, the 2008 AJJA, and the Alabama Rules of Juvenile Procedure that, in resolving issues involving juveniles, time is of the essence.

The present case involves an interlocutory appeal from an order finding a child to be dependent. The 2008 AJJA provides for an adjudicatory hearing in a dependency case followed by a dispositional hearing, at which the juvenile court determines the custodial arrangement that would be in the child’s best interest. See § 12-15-310 and § 12-15-311, Ala.Code 1975. Similarly, the former AJJA also provided for an adjudicatory phase and a dispositional phase in dependency cases. See former § 12-15 — 65(f) and § 12-15-71, Ala.Code 1975; see also F.G.W. v. S.W., 911 So.2d 1 (Ala.Civ.App.2004) (Murdock, J., dissenting)(diseussing the standards of review applicable to the adjudicatory phase and to the dependency phase of a dependency proceeding). The dissent to the Court of Civil • Appeals’ opinion in this case by Judge Moore aptly notes that a finding of dependency impacts a parent’s fundamental rights. However, we cannot presume that by the omission of the word “final” from § 12-15-601, the legislature intended to provide for an appeal from a finding of dependency when it followed that omission with a reference to the rules of procedure promulgated by this Court, as discussed above. Clearly, the legislature inserted no language in § 12-15-601 limiting interlocutory appeals to findings of dependency, and if we were to conclude that the legislature was providing for appeals of all interlocutory orders in juvenile proceedings, those appeals would include orders setting hearings and trials, discovery, venue, and numerous other orders that are routinely entered by juvenile courts, along with other nonfinal orders entered in juvenile proceedings, which would include, but certainly not be limited to, orders in delinquency cases, probable-cause orders in juvenile involuntary commitments, and detainment orders. As the Court of Civil Appeals points out, allowing appeals from nonfinal orders would slow the resolution of juvenile cases, and it is forseeable that a party could appeal every adverse nonfinal order as a dilatory tactic. Generally, delaying juvenile proceedings for interlocutory appeals would be counter to a juvenile’s best interest. Had the legislature intended to provide for appeals from an order finding a child dependent, it could have easily done so without the unintended consequences of allowing all nonfinal orders in juvenile cases to be appealable. Accordingly, we do not interpret the omission of the word “final” from § 12-15-601 as indicating an intent on the part of the legislature to allow every interlocutory juvenile court order to be appealable. We also note that unlike other civil cases, dependency and termination-of-parental-rights proceedings may involve multiple “final” appealable orders before the juvenile case is closed. For example, temporary custody orders are treated as final, appealable orders. See, e.g., C.L. v. D.H., 916 So.2d 622 (Ala.Civ.App.2005) (holding that order awarding maternal grandmother primary physical custody of a child in a dependency case was a final appealable order as opposed to a pendente lite order). Therefore, when the legislature enacted the 2008 AJJA (revising, reorganizing, and repealing parts of the former AJJA) it may not have referred to the right to appeal from a “final” judgment or order, but merely referred to the right to appeal a judgment or order. That language choice, however, does not reflect the legislature’s intent to make all orders in juvenile proceedings appealable. Accordingly, we affirm the Court of Civil Appeals’ judgment dismissing the father’s appeal as being from a nonfinal judgment.

AFFIRMED.

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

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

As the main opinion notes, unlike most other types of cases, it is not uncommon for dependency “proceedings,” as they progress, to in fact generate more than one appealable order along the way. See 96 So.3d at 130 (“[Temporary custody orders are treated as final, appealable orders.”) (citing C.L. v. D.H., 916 So.2d 622, 625 (Ala.Civ.App.2005)).

C.L. is a case in which the trial court conducted a hearing and entered a custody award based on the evidence produced at that hearing. See C.L., 916 So.2d at 625 (“[T]he record and the juvenile court’s May 28 judgment fully indicate that it had already heard that evidence and was entering a judgment based thereon.”). As a result, the court in C.L. concluded that that judgment was appealable. Conversely, had an order been entered merely for the purpose of addressing the custody of the child pending the completion of the court’s hearing and the completion of its receipt of evidence as to the extant facts, the order by definition would have been a “pendente lite” order and thus not ap-pealable. As the court in C.L. explained: “[T]he juvenile court’s judgment [did] not indicate that the purpose of [a subsequently scheduled] ‘review’ hearing would be to finish receiving evidence as to the extant facts.” C.L., 916 So.2d at 625.

In contrast, it is clear that “to finish receiving evidence as to the extant facts” was indeed the purpose of the continuation of the hearing in the present case. The juvenile judge made it clear that she was interrupting the hearing in order to allow the maternal grandparents to receive notice of the motion to intervene by the paternal grandfather; she scheduled the resumption of the hearing for a date three weeks later and announced that she would finish receiving the evidence at that time. She made it clear that, in the meantime, she was not making a custody award based on the evidence heard up to that point, but was merely maintaining in place the pen-dente lite custody arrangement ordered at an earlier date in this juvenile proceeding. I therefore agree that the order in question in this ease was not a judgment awarding custody such as would support an appeal.

      . The juvenile court expressly stated at the hearing on September 21, 2010, that it did not intend to determine the issue of the disposition of the child and further stated that it "would probably do a pendente lite” order. On September 22, 2010, the juvenile court entered an order finding the child dependent but leaving in place its award of pendente lite custody of the child with the maternal grandparents. An order is sufficiently final to support an appeal when it addresses the disposition of the child pursuant to the finding of dependency. See J.J. v. J.H.W., 27 So.3d 519, 522 (Ala.Civ.App.2009) ("[A] formal determination by a juvenile court of a child’s dependency coupled with an award of custody incident to that determination will give rise to an appealable final judgment.... ”). Cf. Ex parte J.P., 641 So.2d 276, 278 (Ala.1994) (explaining the difference between a "temporary” custody award and a pendente lite award and stating that "the language used by the courts can be confusing, especially the language speaking of a temporary award of custody as a final order, as opposed to a pendente lite order, which is not a final order”).

      . The phrase "pendente lite” is Latin for "while the action is pending.” Black’s Law Dictionary 1248 (9th ed.2009).