author: SHAW, Justice.

text:
    NATURES WAY MARINE, LLC v. DUNHILL ENTITIES, LP, et al.
    1090421.
    Supreme Court of Alabama.
    Nov. 19, 2010.
    Allen E. Graham, William E. Shreve, Jr., and A. Grady Williams IV of Lyons, Pipes & Cook, P.C., Mobile, for appellant.
    Edward A. Dean and Benjamin Y. Ford of Armbrecht Jackson, LLP, Mobile, for appellees.
   SHAW, Justice.

Natures Way Marine, LLC (“Natures Way”), an Alabama limited-liability company and the plaintiff below, appeals from a partial summary judgment entered in favor of Dunhill Entities, LP (“Dunhill”), a Texas limited partnership and a defendant below, as to Natures Way’s claim seeking to enforce a mechanic’s and materialman’s lien pursuant to § 35-11-210, Ala.Code 1975. For the reasons discussed below, we dismiss the appeal.

Facts and Procedural History

Dunhill owns property abutting the Mobile River in Mobile. In order to accept barge deliveries, Dunhill, on or around March 11, 2008, contracted with Natures Way, which “is in the business of bareboat charters and related services for barges it owns,” to perform dredging work necessary to deepen the approaches to the barge berth located on the Dunhill property. Work began on or around May 12, 2008. Following completion of the dredging project, Natures Way alleged, Dunhill paid a portion of the outstanding invoices but still owes Natures Way $332,746.33.

On May 19, 2009, Natures Way sued numerous corporate entities apparently operated by Dunhill (hereinafter referred to collectively as “the Dunhill entities”) and three fictitiously named defendants, seeking to recover the purported outstanding amount on the following claims: breach of contract, work and labor done, action on account, account stated, and unjust enrichment. The Dunhill entities answered, generally denying the allegations of Natures Way’s complaint. In their answer, the Dunhill entities also asserted a counterclaim alleging breach of contract, failure to perform the dredging work in a good and workmanlike manner, fraud, and unjust enrichment. The Dunhill entities further asserted that the invoices submitted by Natures Way were duplicative and that they included charges for work Natures Way allegedly did not perform.

Following the filing of a verified statement of lien in the Mobile Probate Court on July 8, 2009, Natures Way amended its original complaint to add an enforcement-of-lien count seeking to enforce a lien against Dunhill’s Mobile property pursuant to § 35-11-210. Dunhill moved for a partial summary judgment as to the lien-enforcement claim. In its motion seeking a partial summary judgment, Dunhill argued that any dredging work performed by Natures Way occurred on or in public waters and thus that there was no dredging on its land and that all dredging work performed by Natures Way ceased as of December 10, 2008, which, pursuant to § 35-11-215, Ala. Code 1975, would have rendered Natures Way’s statement of lien, filed on July 8, 2009, untimely.

Natures Way opposed Dunhill’s motion for a partial summary judgment, relying on invoices that, it said, demonstrated the use of its barge by Dunhill from January 19, 2009, until January 25, 2009, and, thus, its timely filing of its verified statement of lien. In addition, Natures Way argued that Dunhill possessed riparian rights that extended over the submerged land on which Natures Way had performed dredging work; therefore, Natures Way contended, the work benefited Dunhill’s property.

On September 14, 2009, the trial court granted Dunhill’s motion for a partial summary judgment. Although the trial court’s order failed to include the factual findings on which it based that decision, it specifically “ordered” that “Nature’s [sic] Way Marine, LLC does not have a valid lien on the property of Dunhill Entities, L.P. ...”

Natures Way timely filed a motion asking the trial court to “reconsider” its ruling, which the trial court denied. In its order denying the motion filed by Natures Way, the trial court reaffirmed its previous partial summary judgment, stating:

“The Court finds that from the period of time from March 2008 to late January early February 2009 [Natures Way] provided certain barges and labor for use in dredging the underwater land abutting the Dunhill terminal. Though the exhibits before the Court reflect that some of the dredging performed by [Natures Way] was on submerged lands described in [Dunhill’s] deed, it is undisputed that those submerged lands lay beneath a navigable waterway ... i.e., the Mobile River. It has long been settled law in this state that the State of Alabama has title to submerged lands in navigable waters. See Reid v. the Alabama State Docks Department, 373 So.2d 1071 (Ala.1979); thus, any improvements performed by [Natures Way] were not on the land ornied by [Dunhill], but rather land adjacent to or abutting [Dunhill’s] property.
“[Natures Way] also points to Ala. Code [1975,] § 33-7-50, which authorizes the owner of riparian lands upon navigable waters to dredge out and deepen the approaches thereto. While such statute may give the legal authority for such work, it does not extend the mechanic’s lien statute to cover such work. In this respect, the Court finds that this case is not unlike that of Shelby Contracting Co. v. Pizitz, 231 So.2d 743 (Ala.1970). There, a contracting company who constructed a street sought to establish and enforce a mechanic’s lien on lots abutting the street. The Supreme Court refused to declare that an improvement on the street was an improvement on the abutting lot, noting that it was the province of the legislature to so extend the statute if it saw fit to do so. Here, an improvement on the submerged lands owned by the State of Alabama does not, for the purposes of the mechanic’s lien statute, constitute an improvement on the abutting lands. While there may be good policy reasons to extend the statute to meet the facts and circumstances covered in this case, it is not this Court’s province to do so.”

(Emphasis original.) On November 6, 2009, pursuant to a request by Natures Way, the trial court purported to certify the partial summary judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Natures Way timely appealed.

Discussion

As noted, Natures Way purports to appeal the trial court’s partial summary judgment resolving its lien-enforcement claim against Dunhill. Although neither party to this appeal has raised the issue of the appropriateness of the trial court’s Rule 54(b) certification, it is well settled that this Court may consider, ex mero motu, whether a judgment or order is sufficiently final to support an appeal.

‘““As this court has said many times previously, a final judgment is necessary to give jurisdiction to this court on an appeal, and it cannot be waived by the parties.... ”
“‘When it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.’
“Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974) (quoting McGowin Investment Co. v. Johnstone, 291 Ala. 714, 715, 287 So.2d 835, 836 (1973)).
“ ‘Ordinarily, an appeal can be brought only from a final judgment. AIa.Code 1975, § 12-22-2. If a case involves multiple claims or multiple parties, an order is generally not final unless it disposes of all claims as to all parties. Rule 54(b), Ala. R. Civ. P. However, when an action contains more than one claim for relief, Rule 54(b) allows the court to direct the entry of a final judgment as to one or more of the claims, if it makes the express determination that there is no just reason for delay.’
“Grantham v. Vanderzyl, 802 So.2d 1077, 1079-80 (Ala.2001).”

North Alabama Elec. Coop. v. New Hope Tel. Coop., 7 So.3d 342, 344 (Ala.2008).

Here, as noted above, the trial court certified as final pursuant to Rule 54(b) its partial summary judgment as to the lien-enforcement claim. However, “‘[n]ot every order has the requisite element of finality that can trigger the operation of Rule 54(b).’ ” Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 361 (Ala.2004) (quoting Goldome Credit Corp. v. Player, 869 So.2d 1146, 1147 (Ala.Civ.App.2003) (emphasis omitted)).

“ ‘Rule 54(b) certifications “should be made only in exceptional cases.” ’ [Wallace v. Tee Jays Mfg. Co., 689 So.2d 210] at 212 [(Ala.Civ.App.1997)]. ‘[I]n an action involving claims and counterclaims, Rule 54(b) certification has been determined to be improvident where the issues in the claims were deemed to be “so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.” ’ Fullilove v. Home Fin. Co., 678 So.2d 151, 154 (Ala.Civ.App.1996) (quoting Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987)). In Branch v. SouthTrust Bank of Dothan, N.A., [this] court stated:
“ ‘The facts of this case, however, do not present the type of situation that Rule 54(b) was intended to cover. The counterclaim asserted by [the borrower] is based upon an alleged fraudulent representation by an agent of [the lender] upon which [the borrower] claims he relied in executing the promissory note. It therefore appears that the issues in the two claims in this ease are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results. We must conclude, therefore, that in the interest of justice, the claims should not be adjudicated separately.’
514 So.2d at 1374. See also Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala.2006); Hurst v. Cook,. 981 So.2d 1143 (Ala.Civ.App.2007); and BB & S General Contractors, Inc. v. Thornton & Assocs., Inc., 979 So.2d 121 (Ala.Civ.App.2007).
“In BB & S General Contractors, a contractor that had been hired to harvest timber sued the holder of the timber rights, asserting, among other claims, that the defendant had breached the contract by failing to pay it for performance under the contract. The defendant counterclaimed, alleging, among other things, that the contractor had breached the contract by failing to perform the timber-cutting contract properly. The trial court entered a summary judgment on all the counterclaims and certified that judgment as final under Rule 54(b). [The Court of Civil Appeals] held that the trial court had erred in certifying the judgment as final because
“ ‘the interpretation of the contract and a determination as to which party breached the contract is central to the parties’ contract claims; accordingly, the parties’ contract claims are dependent on each other and a resolution of one claim would impact the determination of the other.’
979 So.2d at 125.”

Posey v. Mollohan, 991 So.2d 253, 258-59 (Ala.Civ.App.2008).

In the present case, each party has asserted a competing breach-of-contract claim arising from the dredging contract. The lien-enforcement claim asserted by Natures Way specifically seeks to recoup moneys that, Natures Way claims, it is owed for work performed pursuant to that contract. In their counterclaim, however, the Dunhill entities, which include Dunhill, contend that Natures Way has submitted — and that the Dunhill entities have paid — fraudulent and/or duplicative invoices; that Natures Way has billed the Dunhill entities — and has been paid — for work that Natures Way did not perform; and that at least a portion of the work that Natures Way did perform was substandard. Upon resolution of the Dunhill entities’ counterclaim, the trial court may find that there is, in fact, no outstanding unpaid balance owed to Natures Way for materials or labor supplied in furtherance of the dredging work performed by Natures Way on Dunhill’s property that would support the lien claimed by Natures Way. See § 35-11-210 (providing, in pertinent part, that the claimed “lien shall extend only to the amount of any unpaid balance due the contractor by the owner or proprietor” (emphasis added)).

If the Dunhill entities' counterclaim was, in fact, to be resolved unfavorably to Natures Way, then Natures Way would not be entitled to the claimed lien against Dun-hill, and both the validity and the amount of the claimed lien, at least one of which is squarely before us in the present appeal, would merely be hypothetical issues. Thus, there is a factual overlap between the lien-enforcement claim and the Dunhill entities’ counterclaim. Specifically, as set out above, both arose out of a purported breach of the same contract. Additionally, the Dunhill entities’ counterclaim is in essence a defense to Natures Way's lien-enforcement claim, the subsequent adjudication of which, also as noted above, may affect the validity of the lien claimed by Natures Way against Dunhill. Aptly, the Court of Civil Appeals, in H.P.H. Properties, Inc. v. Cahaba Lumber & Millwork, Inc., 811 So.2d 554, 555 (Ala.Civ.App.2001), stated:

“H.P.H.⅛ counterclaim alleges slander of title, referencing several pre-lawsuit liens Cahaba Lumber recorded against lots owned by H.P.H. Each of the liens contains a specific statement that the ‘lien is claimed to secure an indebtedness ... for materials furnished for the improvements of said real property’. The moneys owed on these same materials are the subject of the original complaint by Cahaba Lumber. There is a legitimate question as to whether success by H.P.H. on its counterclaim would offset the amount already awarded Cahaba Lumber on its initial complaint. The trial court’s later resolution of H.P.H.’s counterclaim could materially [ajffect the total amount of damages awarded in this action. Therefore, we conclude that the attempted Rule 54(b) certification is ineffective — Rule 54(b) certification was not appropriate. There was a ‘just reason for delay’ in the entry of a final order. Thus, this case should not be before an appellate court yet. See Bacadam Outdoor Adver., Inc. v. Kennard, 721 So.2d 226 (Ala.Civ.App.1998).”

811 So.2d at 555.

Here, both Natures Way’s lien-enforcement claim and the Dunhill entities’ counterclaim arise out of the alleged breach of the same contract for dredging work and revolve around resolution of the same issues, i.e., whether the Dunhill entities owe Natures Way additional moneys for that work. Therefore, the parties’ respective “contract claims are dependent on each other and a resolution of one claim would impact the determination of the other.” BB & S Gen. Contractors, Inc. v. Thornton & Assocs., Inc., 979 So.2d 121, 125 (Ala.Civ.App.2007). Just as in H.P.H. Properties, the Dunhill entities’ success on their counterclaim could “materially [ajffect” the validity of Natures Way’s lien — the sole basis of Natures Way’s request seeking Rule 54(b) certification. 811 So.2d at 555. Therefore, we conclude that the lien-enforcement claim of Natures Way and the Dunhill entities’ counterclaim were not discrete claims, but were, instead, closely intertwined, and that their separate adjudication is fraught with an inherent risk of inconsistent results, making them inappropriate for Rule 54(b) certification. See Winecoff v. Compass Bank, 854 So.2d 611, 614 (Ala.Civ.App.2003) (determining a Rule 54(b) certification to be inappropriate when a counterclaim related to the claim the trial court had ruled upon remained pending in the trial court). See also First Southern Bank v. O’Brien, 931 So.2d 50, 53 (Ala.Civ.App.2005) (noting that “ ‘ “[a]p-pellate review in a piecemeal fashion is not favored, and trial courts should certify a judgment as final, pursuant to Rule 54(b), only in a case where the failure to do so might have a harsh effect” ’ ” (quoting other cases) (emphasis omitted)); and Ann Corp. v. Aerostar World, Inc., 781 So.2d 231, 234 (Ala.Civ.App.2000) (holding that Rule 54(b) certification was inappropriate where appeal and remaining counterclaim both arose from a contract dispute regarding moneys due from alleged unauthorized repairs). Because the trial court’s Rule 54(b) certification was invalid, this appeal, which is from a nonfinal judgment, must be dismissed.

APPEAL DISMISSED.

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

      .Section 35-11-210 provides, in pertinent part:
      "Every mechanic, person, firm, or corporation who shall do or perform any work, or labor upon, or furnish any material, fixture, engine, boiler, waste disposal services and equipment, or machinery for any building or improvement on land, or for repairing, altering, or beautifying the same, under or by virtue of any contract with the owner or proprietor thereof, or his or her agent, architect, trustee, contractor, or subcontractor, upon complying with the provisions of this division, shall have a lien therefor on such building or improvements and on the land on which the same is situated, to the extent in ownership of all the right, title, and interest therein of the owner or proprietor, and to the extent in area of the entire lot or parcel of land in a city or town; or, if not in a city or town, of one acre in addition to the land upon which the building or improvement is situated; or, if employees of the contractor or persons furnishing material to him or her, the lien shall extend only to the amount of any unpaid balance due the contractor by the owner or proprietor, and the employees and materialmen shall also have a lien on the unpaid balance.”

      . The additional defendants named by Natures Way included Dunhill Products (Alabama) GP, LLC; Dunhill Terminals GP, LLC; Dunhill Entities GP, LLC; Dunhill Products (ALABAMA), LP; Dunhill Products, LP; Dun-hill Terminals, LP, all of which appear to be various Dunhill entities doing business in Mobile, and three fictitiously named defendants. As to the outstanding amount due, Natures Way supported its complaint with numerous exhibits, including itemized invoices generated by Natures Way relating to the dredging project and the affidavit of Bill Haney, Natures Way’s operations manager, in which Haney verified the invoices and confirmed both that they related to the Dunhill dredging project and that they accurately reflected the purported outstanding amount.

      . There appears to be a dispute as to the last day on which Natures Way performed work on Dunhill's property. Dunhill maintains that Natures Way completed the dredging work on December 10, 2008. Natures Way, however, contends that it last performed work for or provided material to Dunhill on January 25, 2009. On July 8, 2009, Natures Way filed a verified statement of lien against the Dunhill property pursuant to § 35-11-210.

      . The lien-enforcement count of the amended complaint filed by Natures Way was asserted solely against and sought to recoup the alleged outstanding amount solely from Dun-hill, which, according to Natures Way, holds “[f]ee simple title to [the Mobile] property."

      . Section 35-11-215 provides that a mechanic’s or materialman's lien "shall be deemed lost unless the statement referred to in section 35-11-213 shall be filed by every original contractor within six months ... after the last item of work or labor has been performed or the last item of any material ... has been furnished....”

      . In its motion seeking Rule 54(b), Ala. R. Civ. P., certification, Natures Way asserted that its lien-enforcement claim was separate from and unique to all other claims it asserted because the lien-enforcement claim pertained to only a single defendant holding title to the subject property and to the propriety of the lien itself, not to the propriety of the amount of the lien, which Natures Way sought to recover from the Dunhill entities.


source: Caselaw Access Project

author: STUART, Justice.

license: Public Domain

text:
    Ex parte JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES and Tammie Godfrey. (In re Vera Sanders and Thomas Sanders v. Seraaj Family Homes, Inc., et al.).
    1091531.
    Supreme Court of Alabama.
    Nov. 24, 2010.

      Sharon E. Ficquette, gen. counsel, and Joel C. Marsh, staff atty., Department of Human Resources, for petitioners.
    Nelson Allen, Jasper, for respondents Vera Sanders and Thomas Sanders.
    Roderick Walls, Birmingham, for respondents Seraaj Family Homes, Inc., and Lashonda Crosby.
   STUART, Justice.

The Jefferson County Department of Human Resources (“DHR”) and Tammie Godfrey, a social worker employed by DHR, contend that they are immune from a civil action, and they petition this Court for a writ of mandamus directing the Walker Circuit Court to dismiss them from the action filed by Thomas Sanders and Vera Sanders. We grant the petition and issue the writ.

Facts

In June 2001, the Sanderses’ house was completely destroyed by a fire started intentionally by M.H., a foster child for whom they were caring. In October 2001, the Sanderses filed a complaint in the Walker Circuit Court, naming as defendants Seraaj Family Homes, Inc., DHR, Godfrey, and Lashonda Crosby, an employee of Seraaj Family Homes. The complaint alleged that DHR and Godfrey had failed to follow established procedures for out-of-county placement and had negligently placed M.H., who had a history of dangerous behavior, who suffered from a mental illness, and who was in need of psychiatric care, in the Sanderses’ home. In November 2001, DHR and Godfrey moved to dismiss the action against them or, in the alternative, for a summary judgment on the ground of absolute and/or State-agent immunity. The motion was supported by Godfrey’s affidavit. In her affidavit, Godfrey stated:

“My name is Tammie R. Godfrey. I am a resident of Walker County, Alabama, and am over the age of 19 years. I am competent to provide the sworn statements contained in this affidavit. I have been employed by the Jefferson County Department of Human Resources (DHR) since November 2000 as a social worker. I work primarily with children who are placed in foster care.
“I have read the complaint filed by Thomas and Vera' Sanders. I am the case worker for M.H., a foster child in the temporary custody of the Jefferson County DHR. At the time that I became M.H.’s caseworker, he was living in the Bessemer Boys Group Home. A meeting was held to decide what would be the most appropriate placement for M.H. The Bessemer Boys Home director, M.H.’s therapist, M.H., and myself were present at this meeting. It was decided unanimously by everyone at this meeting that M.H. should be placed in a therapeutic foster home. His therapist specifically said that M.H. was ready for placement in a therapeutic foster home. I contacted Seraaj Family Homes (Seraaj) which is a private business that provides therapeutic foster homes for Jefferson County DHR and requested that they locate a therapeutic foster home for M.H. A therapeutic foster home is a home for foster children that have significant behavioral and/or emotional problems that may be too difficult for regular foster parents to handle. The therapeutic foster parents are provided special training by Seraaj and are licensed by Seraaj. They are also assigned a Seraaj social worker to assist the foster family with problems that arise with the foster care placement. DHR pays a monthly rate to Seraaj for the placement of each foster child and Seraaj then pays the foster parents for keeping the child. Therapeutic foster parents receive significantly more money to keep a therapeutic foster child than what is paid to regular foster parents.
“I provided Seraaj with information that they require in locating a placement for a foster child. This included, but was not limited to, a social summary with information about M.H., his school records, Medicaid screening records, and a psychological assessment. A Se-raaj representative contacted me and said that they had a foster home that would be appropriate for M.H. This was the home of Vera and Thomas Sanders. I had no part in the selection of their home as a placement for M.H. I took M.H. to visit Mr. and Mrs. Sanders on January 5, 2001. This was the first time that I met them. He stayed in their home on a trial basis from January 5-8, 2001. On January 8, 2001, they decided that M.H. could stay in their home indefinitely.
“On June 12, 2001, I was notified that the Sanders’s home had caught fire and was destroyed. It was alleged that M.H. started the fire. M.H. later pled guilty to first-degree arson for starting this fire.
“Prior to the incident in the Sanders’s home, M.H. had no history, to my knowledge, of starting fires. He also had no history, to my knowledge, of acting in a dangerous way towards foster parents. ( There was one incident in which it was alleged that he threw a phone at a foster parent, though he denied it. The Sanders were aware of this prior allegation.) M.H. did have behavioral problems which is why he was being placed in a therapeutic foster home. Information concerning his past history was given to Seraaj before the placement. Prior to the placement, M.H., had not, to my knowledge, been diagnosed with a mental illness. There was nothing that I knew about M.H. that would have led me to believe that he would start a fire in a foster home or otherwise be dangerous to the foster parents.
“I have not acted in any negligent manner in the placement of M.H. in the home of the Sanders. I provided all pertinent information concerning M.H. to Seraaj and they selected the Sanders’s home for him. I have acted at all times within the line and scope of my employment and within the authority given to me as a DHR social worker. In all of my contacts and dealings -with M.H. and the Sanders, I was acting in my official capacity as an employee of the Jefferson County Department of Human Resources. I have not had any contacts with them or taken any actions involving them outside of my employment with the Jefferson County Department of Human Resources. I followed the policies and rules concerning foster care placements issued by DHR in placing M.H. in the home of the Sanders. I have not violated any laws, policies, procedures, rules or regulations of the State of Alabama and/or the State of Alabama Department of Human Resources. I did not make any decisions or take any actions in this case in violation of any laws, policies, procedures, or regulations.”

On December 4, 2001, the Sanderses filed an objection to DHR and Godfrey’s motion. However, rather than disputing the facts in Godfrey’s affidavit or responding to the claims of immunity, the Sanders-es stated they needed to engage in discovery and asked the trial court to extend the time for ruling on the motion.

On March 7, 2002, at a hearing on DHR and Godfrey’s motion, the trial court held that the claims against DHR and Godfrey should have been filed with the State Board of Adjustment pursuant to § 41-9-62(b), Ala.Code 1975, and stayed the action for six months to allow the Sanderses to file a such a claim.

On June 24, 2010, the trial court set the case for the call docket on August 5, 2010. Before the docket call, counsel for DHR and Godfrey and counsel for the Sanderses agreed that DHR and Godfrey were due to be dismissed on the basis of immunity. They drafted and signed a joint stipulation of dismissal, and on August 5, 2010, they filed the document with the trial court. During the docket call that day, counsel for DHR and Godfrey asked the trial court to rule on all pending motions or to dismiss the action against DHR and Godfrey based on the joint stipulation. Counsel for Seraaj Family Homes objected to the dismissal of DHR and Godfrey, and the trial court refused to dismiss the action against DHR and Godfrey. DHR and Godfrey petition this Court to direct the Walker Circuit Court to dismiss the claims against them because, they say, they are immune from suit.

Standard of Review
“ ‘A writ of mandamus is a “ ‘ “drastic and extraordinary writ that 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 Wood, 852 So.2d 705, 708 (Ala.2002). A petition for a writ of mandamus is the proper vehicle by which to seek review of the denial of a motion to dismiss based on the ground of State immunity:
“ ‘The denial of a motion to dismiss or a motion for a summary judgment generally is not reviewable by a petition for writ of mandamus, subject to certain narrow exceptions, such as the issue of immunity. Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 761-62 (Ala.2002).’
“Ex parte Haralson, 858 So.2d 928, 931 n. 2 (Ala.2003).”

Drummond Co. v. Ala. Dep’t of Transp., 937 So.2d 56, 57 (Ala.2006).

Discussion

DHR and Godfrey contend that they are entitled to immunity from the claims alleged against them in the Sand-erses’ complaint; therefore, they say, the trial court erred in denying their motion to dismiss or, in the alternative, for a summary judgment.

“ ‘[W]here matters outside the pleadings are considered on a motion to dismiss, the motion is converted into a motion for summary judgment as provided in Rule 12(c), [Ala. R. Civ. P.], regardless of its denomination and treatment by the trial court.’ Boles v. Blackstock, 484 So.2d 1077, 1079 (Ala.1986).
“ ‘When the trial court is called upon to consider a Rule 12(b)(6) motion, it must examine the allegations in the complaint ... and construe it so as to “resolve all doubts concerning [its] sufficiency in favor of the [claimant].”- In so doing, the court does not consider whether the claimant will ultimately prevail, only whether he has stated a claim under which he may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985), citing First National Bank v. Gilbert Imported Hardwoods, Inc., 398 So.2d 258 (Ala.1981), and Karagan v. City of Mobile, 420 So.2d 57 (Ala.1982).
“ ‘If the motion, however, is converted to a Rule 56[(c), Ala. R. Civ. P.,] motion for summary judgment, the “moving party’s burden changes and he is obliged to demonstrate that there exists no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law.” Papastefan v. B & L Const. Co., 356 So.2d 158 (Ala.1978), citing C. Wright and A. Miller, Federal Practice and Procedure: Civil § 1366 (1969).’
“Hightower & Co. v. United States Fidelity & Guar. Co., 527 So.2d 698, 702-03 (Ala.1988).”

A.W. v. Wood, 57 So.3d 751, 756 (Ala.2010).

Because the trial court had before it, in addition to the pleadings, God-frey’s affidavit, DHR and Godfrey’s motion is treated as a summary-judgment motion, and we must determine whether DHR and Godfrey are entitled to a summary judgment.

“This Court’s review of a summary judgment is de novo.
‘“In reviewing the disposition of a motion for summary judgment, “we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,” Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was “entitled to a judgment as a matter of law.” Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is “substantial” if it is 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.” Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993) [overruled on other grounds, Bruce v. Cole, 854 So.2d 47 (Ala.2003) ]; Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).’ ”

Pittman v. United Toll Sys., LLC, 882 So.2d 842, 844 (Ala.2003)(quoting Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997)).

“Article I, § 14, Const, of Ala. 1901, provides ‘[t]hat the State of Alabama shall never be made a defendant in any court of law or equity.’ Section 14 affords absolute immunity to both the State and State agencies. Alabama Dep’t of Transp. v. Harbert Int’l, Inc., 990 So.2d 831, 839 (Ala.2008) (noting that it “ ‘is now well established’ ” that ‘ “absolute immunity ... extends to the State and to State agencies” ’ (quoting Raley v. Main, 987 So.2d 569, 583 (Ala.2007) (Murdock, J., concurring in part and concurring in the result))); Ex parte Town of Lowndesboro, 950 So.2d 1203, 1206 (Ala.2006) (citing Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003))(When an action is one against the State or a State agency, § 14 wholly removes subject-matter jurisdiction from the courts.’)-”

Ex parte Alabama Dep’t of Human Res., 999 So.2d 891, 895 (Ala.2008). Moreover, “[a] complaint seeking money damages against a State employee in his or her official capacity is considered a complaint against the State, and such a complaint is barred by Art. I, § 14, Alabama Constitution of 1901.” Ex parte Butts, 775 So.2d 173, 177 (Ala.2000). In their response to DHR and Godfrey’s petition, the Sanders-es concede that DHR and Godfrey, in her official capacity, are immune from the claims the Sanderses have asserted against them. Therefore, DHR and Godfrey, in her official capacity, have established a clear legal right to a summary judgment.

Furthermore, to the extent that the Sanderses alleged claims against God-frey in her individual capacity, Godfrey is entitled to a summary judgment based on State-agent immunity. Godfrey submitted evidence indicating that her actions fell within the categories of State-agent immunity set forth in Ex parte Cranman, 792 So.2d 392 (Ala.2000), and the Sanderses failed to present substantial evidence establishing that in placing M.H. Godfrey had acted willfully, maliciously, fraudulently, in bad faith, or beyond her authority. See Ex parte Cranman. Therefore, in her individual capacity, Godfrey is entitled to a summary judgment based on State-agent immunity.

Conclusion

DHR and Godfrey have established, and the Sanderses agree, that DHR and God-frey, in her official capacity, are entitled to immunity from the Sanderses’ civil action. In addition, Godfrey is entitled to State-agent immunity from the claims asserted against her in her individual capacity under Ex parte Cranman. Therefore, DHR and Godfrey have established a clear legal right to the relief, they seek, and we direct the Walker Circuit Court to enter a summary judgment for DHR and Godfrey.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and LYONS, WOODALL, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

      . M.H. was under the care of the Jefferson County Department of Human Resources, which placed him with foster parents residing in Walker County.

      . It is unclear why no further action occurred in this case until June 2010.


author: PITTMAN, Judge. THOMPSON, P.J., THOMPSON, Presiding Judge,

text:
    Ex parte T.C. (In re T.C. v. C.E.).
    2090433.
    Court of Civil Appeals of Alabama.
    June 18, 2010.
    Certiorari Denied Sept. 10, 2010 Alabama Supreme Court 1091354.

      Stephen P. Johnson of Brackin, MeGriff & Johnson, P.C., Foley; and Carson I. Nicolson, Fairhope, for petitioner.
    Michael A. Dasinger III and Frank T. Hollon of Hoiles, Dasinger, Hollon & Copeland, P.C., Robertsdale, for respondent.
   PITTMAN, Judge.

This mandamus proceeding was initiated by T.C. (“the father”), who is the primary custodial parent of A.C. and Tr.C. (“the children”); the father seeks review of, among other things, a “status quo” order entered by the Baldwin Juvenile Court in favor of the children’s mother, C.E. (“the mother”), who has sought modification of the custody of the children in light of the father’s intent to relocate with the children to Vernon, New York. This is the second time that these parties have appeared before this court. In our opinion in T.C. v. C.E., [Ms. 2080763, December 11, 2009], we summarized some of the pertinent factual and legal background:

“The record reflects that the juvenile court awarded primary physical custody of the children to the father in 2006. On November 25, 2008, the father sent the mother a letter by certified mail notify-

ing her of his plan to relocate with the children to Vernon, New York, at the end of the 2008-2009 school year; that notice was in substantial compliance with the requirements of the Alabama Parent-Child Relationship Protection Act (‘the Act’), Ala.Code 1975, § 30-3-160 et seq., concerning the form of such notices. See generally Ala. Code 1975, § 30-3-165. In particular, the notice stated that the mother had ‘thirty days from the date of [the] notice to object to the relocation by filing a proceeding with the Court or the relocation will be permitted.’

“Although the mother, through her counsel, apparently sent a letter to the father on December 2, 2008, indicating that she objected to the proposed relocation, the record does not indicate that the mother initiated a civil action in the juvenile court objecting to the proposed relocation until February 9, 2009, more than 30 days after receipt of the notice. The father filed a motion to dismiss the mother’s action, asserting that the mother had not brought her action within 30 days of receipt of the notice of the planned relocation as required by Ala. Code 1975, § 30-3-169. The juvenile court, at the outset of trial on May 6, 2009, denied the father’s motion, stating: T am not going to be that strict with a law that has had very little interpretation anywhere. I am not going to be that strict on the form stuff. I would rather deal [with] substance so I am going to deny your motion to dismiss.’ After receiving testimony and documentary evidence, the juvenile court stated on the record that it would ‘deny the request for the move, because I just think it’s in the best interest for y’all to be in this place.’ The juvenile court then entered a judgment denying leave to relocate, from which the father ... timely appealed.”

— So.3d at-. We reversed the juvenile court’s judgment in the relocation action, holding that the mother’s failure to file a civil action within 30 days of receiving notice of the proposed relocation, as specified in the Alabama Parent-Child Relationship Protection Act (“the Act”), § 30-3-160 et seq., Ala.Code 1975, amounted to a waiver of her right under the Act to bring an action objecting to the proposed relocation. In doing so, we stated that “the legislature has seen fit to confer upon a primary custodial parent the absolute right to relocate upon providing notice in conformity with the Act if no civil action objecting to the proposed relocation is initiated within 30 days of receipt of the notice.” — So.3d at-. We remanded the cause with instructions to the juvenile court to dismiss the relocation action. After the mother’s application for rehearing was overruled by this court, the mother sought. review in the Alabama Supreme Court by petitioning for a writ of certiora-ri; that petition remains pending in that court, and this court’s certificate of judgment has not yet been issued in case no. 2080763.

Eight days after our opinion was issued in case no. 2080763, the mother initiated a new action in the Baldwin Juvenile Court in which she sought a modification of that court’s previous judgment as it pertained to the children’s custody. In her complaint, the mother averred that the father’s intended move to New York with the children amounted to a material change in circumstances warranting a change in the children’s custodial or visitation arrangements. The father filed a motion to dismiss the mother’s modification action; however, the juvenile court, after a hearing, entered a “status quo” order directing that the children were to remain in Alabama pending a final hearing on the mother’s complaint. In response to that order, the father filed in this court a petition for a ■writ of mandamus in which he asserted that the juvenile court had acted outside its jurisdiction in entering the “status quo” order requiring that the children remain in Alabama. This court called for answers and briefs, which were filed, and the cause was thereafter submitted for a decision.

As our Supreme Court noted in Ex parte Progressive Specialty Insurance Co., 31 So.3d 661, 663 (Ala.2009), questions of a trial court’s subject-matter jurisdiction are reviewable by means of a petition for a writ of mandamus. Further, our review of such questions is not limited to grounds specifically raised in a mandamus petition because a lack of subject-matter jurisdiction is not subject to waiver by the parties, and it is our duty to consider a lack of subject-matter jurisdiction ex mero motu. Id. at 662 n. 1. Although the father contends in his mandamus petition that the juvenile court lacks jurisdiction to hear the mother’s modification action because of this court’s opinion in, and the pending certiorari proceedings in, the relocation action, we believe that the mother’s modification action suffers from a more fundamental jurisdictional defect.

Under former law, “once a juvenile court obtain[ed] jurisdiction in any case involving a child,” such as the children in this case, “that court retain[ed] jurisdiction over that case until the child reache[d] the age of 21 years or until the court, by its own order, terminate[d] that jurisdiction.” W.B.G.M. v. P.S.T., 999 So.2d 971, 973 (Ala.Civ.App.2008) (citing former §§ 12-15-32(a) & 26-17-10(e), Ala.Code 1975). Thus, under former law, “[wjhen a juvenile court ha[d] jurisdiction to make an initial child-custody determination, it retain[ed] jurisdiction over a petition to modify that custody judgment to the exclusion of any other state court until the child reache[d] 21 years of age or the juvenile court terminate[d] its jurisdiction.” Id. at 974. If the applicable statutory framework had remained unchanged from that applied in W.B.G.M., this court would likely have denied the father’s mandamus petition, as issues of parental relocation are merely one facet of the larger question of whether a custody judgment should remain in force or should be modified. Cf. Clements v. Clements, 906 So.2d 952, 958 (Ala.Civ.App.2005), and Ala.Code 1975, § 30-3-169.3(a).

Hpwever, as the special concurrence in W.B.G.M. noted, the Legislature has mandated a contrary rule as to custody cases filed after January 1, 2009:

“Act No. 2008-277, Ala. Acts 2008, replaces ... § 12-15-32[ ] with a new Code section, Ala.Code 1975, § 12-15-117, that limits a juvenile court’s retained jurisdiction to cases in which ‘a child has been adjudicated dependent, delinquent, or in need of supervision’ (emphasis added [in W.B.G.M.]). That new Code section, which takes effect January 1, 2009, legislatively abrogates Heller v. Heller, 558 So.2d 961 (Ala.Civ.App.1990), and M.U. v. K.W., 751 So.2d 22 (Ala.Civ.App.1999), as to future cases, thereby limiting (but not eliminating) the prospective precedential value that the main opinion in this case might otherwise have had. Similarly, ... § 26-17-10(e), which is also cited by the main opinion, has been repealed effective January 1, 2009. See Act No. 2008-376, Ala. Acts 2008, § 1.”

999 So.2d at 975 (Pittman, J., concurring specially). To like effect is § 12-15-114(a), which provides that although a juvenile court has original jurisdiction to decide an action alleging that a child is dependent, “[a] dependency action shall not include a custody dispute between parents.” The clear intent of the Legislature was to provide that the juvenile courts of this state should no longer be deciding custody disputes except insofar as their resolution is directly incidental to core juvenile-court jurisdiction (such as in original paternity actions, see Ala.Code 1975, § 26-17-104). Thus, the juvenile court erred in exercising jurisdiction over the mother’s complaint that, under current law, is denied to that court.

Our conclusion should not be read as holding that the juvenile court’s 2006 custody judgment is void for lack of jurisdiction, nor as mandating that that judgment must remain in effect regardless of the circumstances for lack of a forum with jurisdiction to modify it. To the extent that a juvenile court has properly made an initial custody award, or has properly modified a custody judgment under the statutory framework set forth in the main opinion in W.B.G.M., those judgments remain valid and enforceable notwithstanding the enactment of Act Nos. 2008-277 and 2008-376, Ala. Acts 2008. Any such judgments would, however, be prospectively modifiable in Alabama only by the circuit courts, which are constitutionally constituted as “trial court[s] of general jurisdiction.” Ala. Const.1901, § 139(a) (Off. Recomp.).

The father’s petition for the writ of mandamus is granted. The juvenile court is directed to vacate the “status quo” order and to dismiss the mother’s modification action forthwith.

PETITION GRANTED; WRIT ISSUED.

BRYAN, THOMAS, and MOORE, JJ„ concur.

THOMPSON, P.J.,

concurs in part and concurs in the result, with writing.

THOMPSON, Presiding Judge,

concurring in part and concurring in the result.

While serving as a member of the Juvenile Code Revision Committee, I voiced my opposition to the committee’s proposed revisions to § 12-15-32(a), Ala.Code 1975, which dealt with the retention and termination of the juvenile court’s jurisdiction. The committee ultimately adopted those proposed revisions, and the legislature incorporated them in the new juvenile code.

As the main opinion states, the prior law provided that a juvenile court, once it had properly obtained jurisdiction in any case involving a child, would retain jurisdiction over that case until the child reached 21 years of age, unless jurisdiction was terminated earlier by an order of the juvenile court. W.B.G.M. v. P.S.T., 999 So.2d 971, 973 (Ala.Civ.App.2008) (citing §§ 12-15-32(a) and 26-17-10(e), Ala.Code 1975). The new law provides that the juvenile court will retain jurisdiction over only those cases in which a child has been found to be dependent, in need of supervision, or delinquent. After reviewing this case, my opinion remains unaltered with regard to those revisions. The changes in the retention law affect cases like paternity cases, in which issues of custody, visitation, and child support are routinely decided.

This case illustrates the effect of the revisions in a “real-life” setting. In the present appeal, the juvenile court that has presided over the case has more familiarity with the history of the case, the parties involved, and the issues to be addressed than does any other court. Any custody orders to be modified would be those that the juvenile court initially entered. That court also would be in a superior position to know what is in the best interest of the children. Yet the new law dictates that it no longer has jurisdiction over the case. The parties are left to practically start anew before another judge. I believe the better practice would be to leave the case in the court of its origin.

I must, however, concur with that portion of the main opinion holding that the juvenile court erred in exercising jurisdiction over the mother’s complaint. It is the duty of the legislature to enact the laws and the duty of the courts to apply those laws as written. I concur in the result with the remainder of the majority opinion.

       Note from the reporter of decisions: On March 25, 2011, in response to a direction from the Alabama Supreme Court to "reconsider” its decision in case no. 2080763 in light of its decision in this case (case no. 2090433), the Alabama Court of Civil Appeals, on rehearing ex mero motu, withdrew its December 11, 2009, opinion and substituted another opinion. The material quoted below and in the following paragraph appears in the substituted March 25, 2011, opinion. Like the original opinion, the substituted opinion reversed the judgment of the juvenile court and remanded the cause with instructions to dismiss the mother’s action. See T.C. v. C.E., [Ms. 2080763, March 25, 2011] - So.3d -, -(Ala.Civ.App.2011). As of June 9, 2011, when this opinion was prepared for publication, a petition for a writ of certiorari remained pending in the Alabama Supreme Court, and no certificate of judgment had been issued by the Alabama Court of Civil Appeals.

      . Section 12-15-32 has been amended and renumbered as § 12-15-117, Ala.Code 1975.

      . Section 12-15-117(c) also provides that the juvenile court retains jurisdiction “over an individual of any age for the enforcement of any prior orders of the juvenile court requiring the payment of fines, court costs, restitution, or other money ordered by the juvenile court until paid in full."


author: THOMAS, Judge.

text:
    Ex parte Joseph E. PIERSON. (In re Joseph E. Pierson v. Jefferson County Personnel Board and Jefferson County Roads and Transportation Department).
    2090085.
    Court of Civil Appeals of Alabama.
    Aug. 27, 2010.
    Certiorari Denied Oct. 8, 2010 Alabama Supreme Court 1091701.

      Gayle H. Gear, Birmingham, for petitioner.
    Shawnna H. Smith, asst, county atty., Birmingham; and Ed. R. Haden and Aaron L. Dettling of Balch & Bingham, LLP, Birmingham, for respondents.
   On Application for Rehearing

THOMAS, Judge.

The opinion of May 28, 2010, is withdrawn, and the following is substituted therefor.

Joseph E. Pierson, who was employed by the Jefferson County Roads and Transportation Department (“the Department”) as a traffic-striping machine operator, was terminated from his employment with the Department on September 19, 2007. Pierson appealed the termination to the Jefferson County Personnel Board (“the Board”). After a two-day hearing, the hearing officer determined in his report and recommendation that Pierson should be reinstated and that Pierson should be offered anger-management training as a result of the behavior that led to the termination of his employment. The Board received the hearing officer’s report and recommendation on April 14, 2008. The Department filed a detailed objection to the hearing officer’s report and recommendation with the Board. The Board considered the Department’s objection and reviewed the record developed before the hearing officer; the Board ultimately rejected the hearing officer’s report and recommendation and affirmed the Department’s termination of Pierson’s employment. The Board’s order was signed by the Board members on May 13, 2008; however, the order was not stamped as received by the Board, and the certificate of service of the order was not completed, until May 15, 2008.

Pierson appealed the Board’s order to a three-judge panel of the Jefferson Circuit Court. See Act No. 248, § 22, Ala. Acts 1945, as amended by Act No. 684, Ala. Acts 1977 (“the enabling act”) (stating that an appeal from the Board’s order lies in the circuit court and that the presiding judge of the circuit court shall assign the case to a panel of three judges for review). On January 21, 2009, the circuit court reversed the Board’s decision and remanded the cause to the Board for it to make required findings of fact so that the circuit court could properly review the Board’s order. After the Board complied, the circuit court affirmed the Board’s decision to uphold the termination of Pierson’s employment on September 8, 2009. Pierson seeks certiorari review of the judgment of the circuit court.

‘““[T]he proper method of reviewing circuit court decisions involving appeals from the Jefferson County Personnel Board is by common-law petition for writ of certiorari.” Ex parte Personnel Bd. of Jefferson County, 513 So.2d 1029, 1031 (Ala.Civ.App.1987). “Review of the writ of certiorari in this court is limited to a consideration of the proper application of the law by the circuit court and whether that court’s decision is supported by the legal evidence.” Copeland v. Personnel Bd. of Jefferson County, 498 So.2d 854, 855 (Ala.Civ.App.1986).’ ”

Ex parte Jefferson County Sheriff's Dep’t, 13 So.3d 993, 995 (Ala.Civ.App.2009) (quoting Ex parte City of Birmingham, 992 So.2d 30, 32 (Ala.Civ.App.2008)).

As he did before the circuit court, Pierson first argues before this court that the Board’s decision was not timely rendered under its own Rule 12.6, thus causing the hearing officer’s report and recommendation to become the order of the Board. Rule 12.6 reads, in part, as follows:

“The Board, at the first regular or special meeting following the hearing, shall consider the Hearing Officer’s Report and Recommendation, and modify, alter, set aside or affirm said report and certify its findings to the Appointing Authority who shall forthwith put the same into effect. If the Board fails to act within 30 days after the receipt of the Hearing Officer’s Report and Recommendation, the Report and Recommendation shall become the order of the Board.”

(Emphasis added.)

The rule requires that the Board “act” on the hearing officer’s report and recommendation within 30 days of the Board’s receipt of the hearing officer’s report and recommendation. If the Board fails to act within that 30-day period, the hearing officer’s report and recommendation becomes the order of the Board. Thus, Rule 12.6 operates much like Rule 59.1, Ala. R. Civ. P., which automatically denies a pending postjudgment motion at the end of a 90-day period, see, e.g. Ex parte PinnOak Res., LLC, 26 So.3d 1190, 1199 (Ala.2009), except that Rule 12.6 causes the adoption of the hearing officer’s report and recommendation as the order of the Board at the expiration of the 80-day period. See Ex parte City of Birmingham, 992 So.2d at 33 (stating that the Board’s order would be “announced,” as required by the enabling act, as if the Board had issued the hearing officer’s report and recommendation upon the expiration of the 30-day period).

Pierson contends that May 15, 2008, the date that the Board’s order was stamped filed by the Board and the date that appears on the certificate of service of the Board’s order, is the pertinent date upon which to base a determination of the timeliness of the Board’s order. The Department argues, however, that the Board is only required “to act” within the 30-day period and that the action required to be taken by the Board is merely the “rendering of a decision” to “modify, alter, set aside, or affirm” the hearing officer’s report and recommendation. See Ex parte Jefferson County Sheriff's Dep’t, 13 So.3d at 996 (“The ‘act’ that is contemplated by Rule 12.6 is necessarily, therefore, the rendering of a decision.”). Thus, the Department contends that May 13, 2008, the date that the order was signed by the members of the Board, is the date that the order was rendered and that date is the appropriate date upon which to base the timeliness determination.

Pierson argues that a decision to use the date that the Board members signed the order as the date upon which to base a timeliness determination for purposes of Rule 12.6 would also result in that date being the “announcement” of the order for purposes of triggering the running of the time for appeal from the Board’s order under the enabling act. See Act No. 248, § 22, Ala. Acts 1945, as amended by Act No. 684, Ala. Acts 1977 (stating that an appeal from the Board’s order to the circuit court “shall be filed within ten days from the announcement of the [Board’s] ... order....”); Ex parte City of Birmingham, 992 So.2d at 33 (equating the automatic adoption of the hearing officer’s report and recommendation upon the expiration of the 30-day period in Rule 12.6 with the “announcement” of the Board’s order). Pierson contends that such a conclusion could possibly leave an employee in the position of having little or no time to perfect an appeal from an order of the Board. In order to determine whether the date the Board’s order was signed or the date the Board’s order was stamped filed and the certificate of service was executed is the appropriate date for determining whether the Board’s order was timely entered in the present case, we will turn to the language used in the enabling act and to principles of statutory construction.

“In interpreting the provisions of an Act ..., a court is required to ascertain the intent of the legislature as expressed and to effectuate that intent. Lewis v. Hitt, 370 So.2d 1369 (Ala.1979). The legislative intent may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained by its passage. Ex parte Holladay, 466 So.2d 956 (Ala.1985). Words used in the statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. Coastal States Gas Transmission Co. v. Alabama Public Service Commission, 524 So.2d 357 (Ala.1988); Alabama Farm Bureau Mutual Casualty Insurance Co. v. City of Hartselle, 460 So.2d 1219 (Ala.1984). If the language of the statute is clear and unambiguous then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect. Dumas Brothers Manufacturing Co. v. Southern Guaranty Insurance Co., 431 So.2d 534 (Ala.1983); Town of Loxley v. Rosinton Water, Sewer, & Fire Protection Authority, Inc., 376 So.2d 705 (Ala.1979).”

Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa County, 589 So.2d 687, 689 (Ala.1991).

Under the enabling act, an appeal from the order of the Board must be filed ■within 10 days of the “announcement” of the order. Act No. 248, § 22, Ala. Acts 1945, as amended by Act No. 684, Ala. Acts 1977; see also Ex parte City of Birmingham, 992 So.2d at 33. “Announcement” is defined as “a public notification or declaration.” Merriam-Webster’s Collegiate Dictionary 50 (11th ed.2003). The enabling act also requires that “[t]he [BJoard’s [order] ... be certified to the appointing authority who shall forthwith put the same into effect.” Act No. 248, § 22, Ala. Acts 1945, as amended by Act No. 684, Ala. Acts 1977. “Certify” is defined as “to present in formal communication.” Merriam-Webster’s Collegiate Dictionary 203 (11th ed.2003). “Effect” is defined as “the quality or state of being operative.” Merriam-Webster’s Collegiate Dictionary 397 (11th ed.2003). Thus, based on the language of the enabling act, the Board’s order must be formally communicated to the appointing authority so that the order may become operative, and the time for appeal begins to run once the parties have been notified of the order.

However, it does not follow that Rule 12.6 requires that the Board’s order must be formally communicated for the Board to have timely fulfilled its duty under Rule 12.6. Rule 12.6 requires the Board “to act,” but, under the enabling act, the time for appeal begins to run on the date of the “announcement” of the Board’s order. Act No. 248, § 22, Ala. Acts 1945, as amended by Act No. 684, Ala. Acts 1977. Similarly, Rule 58, Ala. R. Civ. P., distinguishes between the “rendering” of an order and the “entry” of an order. The act of rendering an order is accomplished by the trial judge. Rule 58(a). The entry of that order is accomplished by the input of the order into the State Judicial Information System. Rule 58(c). A judgment must be entered in order to trigger the running of the time for appeal. Rule 4(a)(1), Ala. R.App. P. (indicating that the time for appeal runs from the date of entry of the judgment or order).

As we noted earlier, Rule 12.6 works similarly to Rule 59.1, Ala. R. Civ. P. The distinction between rendition and entry is also relevant in the application of Rule 59.1. Under Rule 59.1, a trial court must render an order on a postjudgment motion within 90 days or the motion is deemed denied by operation of law. Rule 59.1 (indicating that a postjudgment motion is deemed denied by “[a] failure by the trial court to render an order disposing of any pending postjudgment motion within the time permitted hereunder .... ”). Provided that the trial court has rendered an order on the motion before the expiration of the 90-day period, the entry of the order after the 90th day by the clerk does not affect the timeliness of the trial court’s action. Committee Comments to Amendment to Rule 59.1 Effective October 24, 2008. (“[T]he Committee, at the request of the Court, has proposed this amendment to Rule 59.1 to cause the timely rendering of an order to be effective to prevent the automatic denial by expiration of time, but retaining the requirement that the order must still be entered for other purposes of these Rules, such as the running of the time for an appeal pursuant to Rule 4, Ala. R.App. P.”). The date of the entry of the order, however, does trigger the time for appeal. Id.

By comparison, the date the Board certifies its order to the appointing authority, as required by the enabling act, can fairly be considered the date of announcement, or entry, of the Board’s order for the purpose of determining when the time for appeal should begin to run. However, like Rule 59.1, Rule 12.6 requires only that the Board “act” on, or render a decision on, the hearing officer’s recommendation within 30 days of receiving the recommendation, not that the Board’s order be certified to the appointing authority within that period. See Ex parte Jefferson County Sheriff’s Dep’t, 13 So.3d at 996. Thus, we conclude that the Board’s May 13, 2008, rendering of its decision was timely under Rule 12.6.

We now turn to Pierson’s second argument on appeal. Pierson argues that the circuit court lacked the authority to remand the appeal to the Board for it to supply findings of fact to support its decision to reject the hearing officer’s recommendation. However, as the Board points out, the enabling act permits the three-judge panel of the circuit court considering an appeal from the Board to “affirm, reverse, remand or render said cause.” Act No. 248, § 22, Ala. Act 1945, as amended by Act No. 684, Ala. Acts 1977. Pierson has presented no authority to support a conclusion either that the circuit court acted without authority in remanding the cause or that the Board’s order was “constitutionally deficient,” as Pierson contends. Thus, because the circuit court had the express power to remand the cause, we cannot agree that the circuit court erred by doing so.

Finally, Pierson argues that the findings of the Board were “inaccurate, incomplete, and biased.” As a basis for his objections to the Board’s findings, Pierson contends that the Board recites evidence elicited from the direct testimony of several witnesses despite what he calls “exculpatory” testimony elicited on cross-examination from the same witnesses. He also argues that the Board ignored evidence favorable to him.

Our standard of review in this case is quite limited.

“ ‘At the outset, we note that the Board’s decision must be affirmed if substantial evidence supports it. City of Birmingham v. Personnel Board of Jefferson County, 464 So.2d 100 (Ala.Civ.App.1984). Both the trial panel and this court are bound by the same substantial evidence standard of review. City of Birmingham, supra. Substantial evidence is relevant evidence that a reasonable mind would view as sufficient to support the determination. Ex parte Morris, 263 Ala. 664, 83 So.2d 717 (1955).’ ”

Ex parte City of Birmingham, 870 So.2d 742, 746 (Ala.Civ.App.2003) (quoting Ex parte Personnel Bd. of Jefferson County, 648 So.2d 593, 594 (Ala.Civ.App.1994)).

The testimony presented before the hearing officer, although conflicting, supported the conclusion that Pierson behaved in an insubordinate manner toward his supervisors, that he exhibited anger and hostility toward his supervisors and coworkers, and that he generally exhibited a negative attitude about his work duties. Particular incidents involving Pierson’s failure to perform his work duties were recounted, including an incident during which he walked away from his duties to talk on his cellular telephone and another incident during which he left his crew shorthanded while it was performing signal-flag duties to ride on the back of the road-paving machine being operated by another crew. The evidence indicated that some of Pierson’s neglect of his duties impacted the safety of his crew, other crews, and the public. In addition the evidence reflected that some of Pierson’s coworkers had complained about his behavior and attitude and that morale had improved since Pierson was dismissed from his employment. Although one view of the conflicting testimony, which included the testimony of Greg Barnes, who testified that some of the allegations against Pierson indicating that he had neglected his work were not well founded, might support a conclusion that Pierson’s dismissal was not warranted, we are not permitted to reweigh the evidence presented to the hearing officer. The Board’s order is supported by substantial evidence, and the trial court’s judgment is therefore affirmed.

APPLICATION GRANTED; OPINION OF MAY 28, 2010, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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


author: BRYAN, Judge.

text:
    Katie BOND, a minor, by and through her guardian ad litem v. ESTATE OF Kenneth D. PYLANT II, deceased, et al. Bethany Pylant v. Katie Bond, a minor, by and through her guardian ad litem. Kim Bond v. Estate of Kenneth D. Pylant II, deceased, et al. Bethany Pylant v. Kim Bond.
    2090406 and 2090422.
    Court of Civil Appeals of Alabama.
    Sept. 17, 2010.
    Certiorari Denied Nov. 12, 2010 Alabama Supreme Court 1091787.

      Katherine M. Klos of Akridge & Balch, P.C., Auburn, for appellant/cross-appellee Katie Bond, a minor, by and through her guardian ad litem.
    Robert G. Poole, W. David Dawson, and Jonathan K. Corley of Whittelsey, Whittel-sey <& Poole, P.C., Opelika, for appellant/cross-appellee Kim Bond.
    Ruth S. Sullivan, Dadeville; and Charles R. Gillenwaters, Alexander City, for cross-appellant Bethany Pylant.
    James B. Sprayberry, Auburn, executor of the estate of Kenneth D. Pylant II.
    Blake L. Oliver of Adams, Umbach, Davidson & White, LLP, Opelika, for ap-pellees Adam Pylant and Kenneth D. Py-lant III.
   BRYAN, Judge.

Following the removal of the administration of the estate of Kenneth Pylant II, deceased (“Pylant”), from the Probate Court of Lee County (“the probate court”) to the Lee Circuit Court (“the circuit court”), the circuit court entered a judgment that, among other things, determined who was entitled to certain land in Lee County (“the disputed land”) and whether Pylant’s estate was responsible for paying certain debts Pylant and his widow, Kim Bond (“Kim”), owed at his death. In appeal no. 2090406, Katie Bond (“Katie”), a minor, who is one of three children Pylant and Kim had together, appeals the circuit court’s judgment insofar as it determined who was entitled to the disputed land. In appeal no. 2090422, Kim appeals the circuit court’s judgment insofar as it determined who was entitled to the disputed land and whether the estate was responsible for debts Pylant and she owed at his death. Pylant’s former wife, Bethany Pylant (“Bethany”), cross-appeals insofar as the circuit court’s judgment determined who was entitled to the disputed land. We affirm in part, reverse in part, and remand.

The following facts are undisputed. Py-lant and Bethany married in 1981 and had four sons together, Kenneth Pylant III (“Ken”), who was born in 1982; Adam Pylant (“Adam”), who was born in 1985; Blake Pylant (“Blake”), who was born in 1991; and Will Pylant (“Will”), who was born in 1992.

During the marriage between Pylant and Bethany, Pylant acquired title in his name only to a 15-acre parcel of land in Lee County (“the 15-acre parcel”). Also during the marriage between Pylant and Bethany, Pylant and Bethany acquired title as joint tenants with right of survivor-ship to a 71.73-acre parcel of land in Lee County (“the 71.73-acre parcel”). The disputed land consists of the 15-acre parcel and the 71.73-acre parcel. Both the 15-acre parcel and the 71.73-acre parcel abut the western right-of-way of Cox Road; the southern boundary of the 15-acre parcel and the northern boundary of the 71.73-acre parcel are coterminous. A blue house with a street address of 1990 Cox Road is located on the 15-acre parcel. A house with a street address of 2010 Cox Road is located on the 71.73-acre parcel.

On December 27, 1993, Pylant and Bethany signed a separation agreement (“the separation agreement”). In pertinent part, the separation agreement stated:

“1. [Bethany] shall be vested with all the right, title and interest, in and to the home located at 2010 Cox Road, Auburn, Alabama and the surrounding approximately four (4) acres, the pool house and pool. A diagram with approximate lines of division is attached hereto as Exhibit ‘A’. In addition to the home and four (4) acres, [Bethany] shall have all the right, title and interest in and to twenty two (22) acres, for a total of twenty six (26) acres, more or less.
“2. [Pylant] shall have all the right, title and interest in and to the remainder of the land, which is 60.71 acres, more or less.13
“3.[Pylant] shall have all the right, title and interest in and to 1990 Cox Road, which is a blue house situated on approximately fifteen (15) acres!1
“15. [Bethany], at the time of this divorce, will obtain ownership to a coastal hayfield located around the home. [Bethany] shall be obligated to continue to lease this coastal field to [Pylant] at the fair market value. The parties agree that the fair market value as of September, 1993, is $20.00 per acre, per year. [Bethany] shall be obligated to continue to lease this field to [Pylant] as long as he desires to continue the lease at the fair market value, provided it has been properly maintained with fencing, fertilizer and maintenance at [Pylant’s] expense.
“23. Each party agrees to execute whatever documents are necessary to effect this agreement or the related conveyances. This would include, but not be limited to, deeds....
“31. Each of the parties shall on demand execute and deliver to the other any deeds ... to effectuate the provisions and purposes of this agreement. ...”

On January 26, 1994, the circuit court entered a judgment divorcing Pylant and Bethany and incorporating the settlement agreement. The deeds contemplated by the settlement agreement with respect to the 71.73-acre parcel and the 15-acre parcel were never executed.

In June 1994, Pylant and Bethany executed a note payable to Auburn University Federal Credit Union (“Auburn Credit Union”) in the principal amount of $35,000 and secured its payment by executing a mortgage on a 3-acre portion of the 26 acres allocated to Bethany by the settlement agreement.

After his January 26, 1994, divorce from Bethany, Pylant and Kim had three children together. Their eldest child, Katie, was born in September 1994. Pylant and Kim ceremonially married on April 30, 2004.

In 1996, Pylant and Kim executed a note payable to AuburnBank in the principal amount of $57,500 and secured its payment by executing a mortgage on a parcel of land located on North Ryan Street in Auburn, which they owned as joint tenants with right of survivorship. In 2002, Pylant and Kim executed a note payable to Union Bank in the principal amount of $96,000 and secured its payment by executing a mortgage on 20 acres of land that was titled in Kim’s name only. In 2004, Pylant and Kim executed a note payable to Au-burnBank in the principal amount of $675,550.20 and secured its payment by executing a mortgage on land located on Pirates Cove in Tallassee, which they owned as joint tenants with right of surviv-orship.

Pylant executed a will (“the will”) on March 19, 2001. On December 16, 2004, Pylant and Kim signed a written agreement stating, in pertinent part, that “it is agreed that if either spouse dies, all mortgages and debts of both parties will be paid in full by the estate of the deceased spouse and become the property of the surviving spouse.” They each signed that agreement in the presence of a single witness.

On September 5, 2005, Pylant was killed in a motorcycle accident. After Pylant died, the original of the will could not be found. However, the executor named in the will petitioned the probate court to admit a copy of the will to probate. Following a hearing, the probate court admitted the copy of the will to probate on November 19, 2005. Thereafter, Kim attempted to contest the will, but her will contest was dismissed due to her failure to comply with the statutes governing will contests. She appealed to the supreme court, which affirmed the dismissal of her will contest. See Bond v. Pylant, 3 So.3d 852 (Ala.2008).

In pertinent part, the will provides:

“ARTICLE I
“I desire that all my just debts, including the expense of my last illness, be paid by my Executor, hereinafter named, as soon after my death as may be practicable.
“ARTICLE II
“(H) I direct that my Executor divide the eighty-eight (88) acres (approximately) that I own in Lee County,[] Alabama as follows:
“(1) I give, devise and bequeath ten (10) acres that adjoins Artie Bond’s property and/or [Kim’s] to [Kim and Katie] in equal shares/1
“(2) The remaining seventy-eight (78) acres (approximate) I give, devise and bequeath to my children Ken Pylant, Adam Pylant, Blake Pylant and Will Py-lant in equal shares. This seventy-eight (78) acres and rental home are located at 1990 Cox Road, Auburn, Alabama.”[]

In January 2009, pursuant to a petition filed by the executor, the administration of Pylant’s estate was removed from the probate court to the circuit court. In the circuit court, the parties delineated the following issues for determination by the circuit court: (1) whether the separation agreement was unenforceable because Bethany had been fraudulently induced to sign it; (2) whether the separation agreement, which was incorporated into the January 26, 1994, judgment divorcing Pylant and Bethany, terminated their joint tenancy with right of survivorship with respect to the 71.73-acre parcel and vested Bethany with exclusive title to 26 acres of that parcel, vested Pylant with exclusive title to 45.73 acres of that parcel, and vested Py-lant with exclusive title to the 15-acre parcel; (3) whether Bethany and Pylant established a common-law marriage after their January 26,1994, divorce; (4) whether the estate was responsible for paying the debt owed jointly by Pylant and Bethany to Auburn Credit Union; and (5) whether the estate was responsible for paying the debts owed jointly by Pylant and Kim to AuburnBank and Union Bank. For the purposes of determining the last two issues, the parties stipulated that the land securing the payment of the debt jointly owed by Pylant and Bethany and the land securing the payment of the debt jointly owed by Pylant and Kim were not part of Pylant’s probate estate.

Following a bench trial at which it received evidence ore tenus, the circuit court, on October 27, 2009, entered a judgment stating, in pertinent part:

“[T]he Court finds that a valid and binding order was entered on or about January 26, 1994 divorcing [Pylant] and [Bethany]. Additionally, no common-law marriage was established after that date between [Pylant] and [Bethany]. Moreover, the Court finds that the will at issue in this case is also valid.
“Regarding the approximately 86-acre parcel of farm property in Auburn at issue in this case — including two residences, pastime, and a hay field[] — the Court finds that [Bethany] and [Pylant] were tenants-in-common for the entire parcel. The divorce agreement clearly intends to sever any rights of survivor-ship between [Bethany] and [Pylant]. See, e.g. Hamilton v. Matthews, 619 So.2d 1385 (Ala.1993) and Kirven v. Reynolds, 536 So.2d 936 (Ala.1988). Moreover, the evidence at trial was that the parties already used the land as if it were legally subdivided. [Bethany] resided in one of the houses on the property [] and used a hayfield immediately adjacent as her own, but did not enter the second home[] or the attached pastureland. [Kim] and [Pylant] used the pasture land, the barn, and the rental house[] but did not enter the hayfield or [Bethany’s] residence[] without [Bethany’s] permission. In fact, there was testimony that [Pylant] and [Kim] rented use of the hayfield from [Bethany]. This is distinguishable from the facts of Malone v. Malone, 543 So.2d 1188 (Ala.Civ.App.1987), cited by [Bethany’s] attorney. In the Malone case, one of the ex-spouses died the year following the divorce agreement and no pattern of usage was established for the real property.
“However, the divorce agreement in itself cannot subdivide the land, and no deeds have been recorded subdividing the land. Also, any ruling that the right of survivorship was not destroyed would disinherit the Pylant children, which would not be equitable, therefore, the 86-acre parcel is disposed as follows: [Bethany] holds 50% undivided'interest as tenant-in-common with Kenneth D. Pylant, III; Adam Pylant; Blake Py-lant; and Will Pylant, each of whom hold a 12.5% undivided interest.
“Various parcels of land owned by [Pylant] during his life passed via sur-vivorship deeds to [Kim] and [Bethany], Several theories were put forward by the parties as to which entity should pay the notes for mortgages on those properties. No Alabama case law appears to be on point for this issue, but the Court finds the Tennessee case In re: Estate of George C. Vincent persuasive. 98 S.W.3d 146 (Tenn.2003). Therefore, the Estate shall not be responsible to pay notes for mortgages which passed outside of probate in this case. The notes for said mortgages shall remain in the names of the parties still living who signed the notes.”

On November 25, 2009, Kim moved the circuit court to alter, amend, or vacate its judgment. Among other things, Kim’s motion challenged (1) the circuit court’s conclusion that the divorce did not vest Pylant with sole title to 45.73 acres of the 71.73-acre parcel and the 15-acre parcel and (2) the circuit court’s conclusion that the estate was not responsible for paying any portion of the debts Pylant and Kim jointly owed AuburnBank and Union Bank.

The circuit court denied Kim’s motion on December 2, 2009. On January 5, 2010, Kim appealed to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), AIa.Code 1975. On January 11, 2010, Katie, by and through her guardian ad litem, appealed to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6). On January 15, 2010, Bethany cross-appealed to the supreme court, which transferred the cross-appeal to this court pursuant to § 12-2-7(6). This court consolidated the appeals.

Because the circuit court received evidence ore tenus, our review is governed by the following principles:

“ ‘ “ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” ’ Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). ‘“The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Wattman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

Initially, we note that Bethany does not argue in her brief to this court three issues she raised in the circuit court: (1) whether the separation agreement was not enforceable because, she said, she was induced to sign it by fraud; (2) whether she and Pylant had established a common-law marriage after their December 26, 1994, divorce; and (3) whether the estate is responsible for the debt she and Pylant jointly owed Auburn Credit Union when he died. Therefore, she has waived those issues. See Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (“ ‘When an appellant fails to properly argue an issue, that issue is waived and will not be considered. Boshell v. Keith, 418 So.2d 89 (Ala.1982).’ Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996).”).

The first issue we must decide is what, if any, effect the separation agreement and the January 26, 1994, divorce judgment incorporating it had on the ownership of the 71.73-acre parcel and the 15-acre parcel. Kim argues that the separation agreement was binding on Bethany and Pylant and that it vested Bethany with exclusive title to 26 acres of the 71.73-acre parcel, vested Pylant with exclusive title to the other 45.73 acres of the 71.73-acre parcel, and vested Pylant with exclusive title to the 15-acre parcel. Bethany, on the other hand, argues that the separation agreement and the divorce judgment incorporating it neither terminated her and Pylant’s joint tenancy with right of surviv-orship with respect to the 71.73-acre parcel nor divided the 71.73-acre parcel and the 15-acre parcel between her and Py-lant. Rather, Bethany argues, the separation agreement was a contract that required the execution of deeds in order to effectuate its provisions dividing the 71.73-acre parcel and the 15-acre parcel and, thus, because the parties did not execute such deeds within a reasonable time, the provisions of the separation agreement are not enforceable. She also argues that enforcing the separation agreement would constitute an impermissible amendment of a marital-property division more than 30 days after the entry of the judgment dividing the marital property. Thus, according to Bethany, because the separation agreement and the divorce judgment incorporating it did not terminate the joint tenancy with right of survivorship with respect to the 71.73-acre parcel, exclusive title to the 71.73-acre parcel passed to her upon Py-lant’s death, by virtue of her right of sur-vivorship.

The supreme court’s decision in Newton v. Roe, 290 Ala. 191, 275 So.2d 135 (1973), indicates that the separation agreement was enforceable despite the fact that Py-lant and Bethany did not execute deeds to effectuate the division of the 71.73-acre parcel and the 15-acre parcel provided for in the separation agreement. Newton further indicates that enforcement of the separation agreement would not constitute an impermissible amendment of a marital-property division more than 30 days after the entry of the judgment dividing the marital property.

In Newton, Ernest Edward Roe (“Ernest”) and Mary Frances Roe (“Mary”) signed a property-settlement agreement as part of their divorce, although the settlement agreement was not incorporated into their divorce judgment. The property-settlement agreement provided that Mary would receive exclusive title to the land on which their house was located and that Ernest would receive exclusive title to a 79-acre parcel of land (“the 79-acre parcel”). However, Mary never executed a deed conveying her interest in the 79-acre parcel to Ernest. Subsequently, Mary sued Ernest, seeking a sale for division with respect to the 79-acre parcel. The trial court denied Mary’s claim seeking a sale for division and declared that Ernest was vested with exclusive title to the 79-acre parcel. Mary then appealed to the supreme court. Affirming the judgment of the trial court, the supreme court stated:

“We are unable to agree with [Mary’s] contention that the final decree rendered by the trial court constitutes a revision or amendment of a prior decree. The language of the instant decree certainly does not purport to alter a prior decree in any way and we find no basis in law or fact to so construe said decree.
“It is also well established that, when a court of equity is presented with such facts as warrant, it is fully justified to regard substance rather than form and treat as done that which ought to have been done, if such is necessary to effectuate the true intent of the parties. Coley v. W.P. Brown & Sons Lumber Co., 251 Ala. 235, 37 So.2d 125 [ (1948) ]; St. Clair Springs Hotel Co. v. Balcomb, 215 Ala. 12, 108 So. 858 [ (1926) ]; Hughes & Tidwell Supply Co. v. Carr, 203 Ala. 469, 83 So. 472 [ (1919) ]. In Copeland v. Warren, 214 Ala. 150, 107 So. 94 [ (1926) ], the parties had attempted to execute a conveyance of property but the deed contained an incorrect description of the property to be conveyed. In holding the deed valid and allowing a reformation of the description in the deed the Court stated:
“ ‘A court of equity treats as done that which ought to have been done to carry into effect the intention of the parties, and to that end will give effect to the transaction by fixing the status and rights of the parties as if the deed was executed on the date it should have been executed.’ [Emphasis supplied.]
“Applying the above stated equitable principles to the present case, we feel the evidence justified the trial court’s conclusion that at the time of the divorce settlement it was intended by the parties that [Ernest] would be the exclusive owner of the 79-acre tract, and that such intention should be effectuated through this litigation. Indeed, [Mary’s] evidence, including her own testimony, fails to dispute that such were the terms of the agreement. Although [Mary] does not deny that such an understanding was reached between the parties, she nevertheless insists that since the same was not included in the final decree of divorce, and that no deed conveying her interest was ever executed, it is not now binding on her; and, consequently, she remains the owner of an undivided one-half interest in the property.
“We agree with the trial court’s rejection of [Mary’s] contention; and we hold that the trial court did not exceed its jurisdiction in adjudicating the rights of the parties by divesting title out of [Mary] and [vesting title] in [Ernest] in accordance with the complete settlement agreement disclosed by the testimony as if she had executed the deed on the date of the property settlement incident to their divorce. Accordingly, the judgment of the trial court is due to be and is hereby affirmed.”

290 Ala. at 193-94, 275 So.2d at 137-38.

In the case now before us, the separation agreement established that Bethany and Pylant intended to vest exclusive title to 26 acres of the 71.73-acre parcel in Bethany, to vest exclusive title to the other 45.73 acres of the 71.73-acre parcel in Pylant, and to vest exclusive title to the 15-acre parcel in Pylant. Accordingly, following the holding in Newton, we conclude that the settlement agreement vested exclusive title to 26 acres of the 71.73-acre parcel in Bethany, vested exclusive title to the other 45.73 acres of the 71.73-acre parcel in Pylant, and vested exclusive title to the 15-acre parcel in Pylant. Because we conclude that the separation agreement vested exclusive title to 26 acres of the 71.73-acre parcel in Bethany and vested exclusive title to the other 45.73 acres of the 71.73-acre parcel in Pylant, we find no merit in Bethany’s argument that the separation agreement did not terminate the joint tenancy with right of survivorship with respect to the 71.73-acre parcel. Cf. Jones v. Shannon, 40 So.3d 717 (Ala.Civ.App.2009) (holding that divorce judgment, which incorporated a separation agreement that provided for the sale of marital property the husband and the wife owned as joint tenants with right of survivorship and division of the proceeds of the sale, established that the husband and the wife intended to terminate the joint tenancy with right of survivorship). Accordingly, we reverse the judgment of the circuit court insofar as it concluded that the separation agreement did not divide the 71.72-acre parcel and the 15-acre parcel between Pylant and Bethany before Pylant’s death.

The next issue we must decide is who was entitled to Pylant’s 45.73-acre portion of the 71.73-acre parcel and the 15-acre parcel. They were part of Py-lant’s probate estate and were devised by the will. The will devised 10 acres of Pylant’s 45.73-acre portion of the 71.73-acre parcel to Kim and Katie. The will devised (1) the other 35.73 acres of Py-lant’s 45.73-acre portion of the 71.73-acre parcel and (2) the 15-acre parcel to Ken, Adam, Blake, and Will in equal shares. Consequently, we reverse the judgment of the circuit court insofar as it concluded that Bethany was entitled to an undivided one-half interest in the 71.73-acre parcel and the 15-acre parcel and that Ken, Adam, Blake, and Will were each entitled to an undivided one-eighth interest in the 71.73-acre parcel and the 15-acre parcel, and we remand the action to the circuit court for further proceedings consistent with this opinion.

The third and final issue we must decide is whether the estate was responsible for paying the debts jointly owed by Pylant and Kim to AuburnBank and Union Bank at the time of Pylant’s death. Those debts were secured by mortgages on land that passed to Kim by right of survivor-ship. In arguing that the estate is responsible for paying debts of Pylant that were secured by mortgages on land, Kim is seeking to invoke the doctrine of exoneration.

“The doctrine of exoneration originated in English common law. English cases from the early eighteenth century demonstrate that an heir or devisee of real property could look to a decedent’s personal estate to satisfy any mortgage debt remaining on a decedent’s probate property. The doctrine of exoneration stems from the broad English common law rule that all debts of the deceased were to be paid from his personal estate. Moreover, English common law held real property in high regard. Not surprisingly, English common law provided for exoneration from the personal estate of a decedent, rather than from the real property itself.”

Thomas E. Clary III, Property — In re Estate of Vincent: The Tennessee Supreme Court Declines to Extend the Common Law Doctrine of Exoneration to Survivor-ship Property, 34 U. Mem. L.Rev. 695, 697-98 (2004) (footnotes omitted). However, “[o]ver time, many United States jurisdictions found disfavor with the doctrine of exoneration and enacted statutes abrogating the doctrine in favor of a rule that allowed for exoneration of real property only when expressly called for by the testator.” Id. at 700. Alabama is one of those jurisdictions. See § 43-8-228, Ala. Code 1975. Section 43-8-228 provides: “A specific devise passes subject to any mortgage interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts.” Thus, in the case now before us, Pylant’s general directive in his will to pay his debts did not entitle Kim to exoneration. Kim argues that the agreement she and Pylant signed on December 16, 2004, in which they agreed “that if either spouse dies, all mortgages and debts of both parties will be paid in full by the estate of the deceased spouse and become the property of the surviving spouse” should be considered as parol evidence explaining Pylant’s intent with respect to exoneration. However, Pylant’s general directive in the will to pay his debts is not ambiguous — it unambiguously omits any provision for exoneration. “We must take the terms which the testator used in the will and parol evidence is never admissible to show terms the testator intended to use and did not use.” Azar v. Azar, 262 Ala. 547, 550, 80 So.2d 277, 280 (1955). Accordingly, the circuit court did not err in concluding that Kim was not entitled to exoneration.

In summary, we reverse the judgment of the circuit court insofar as it concluded that the separation agreement did not divide the 71.73-acre parcel and the 15-acre parcel between Pylant and Bethany before Pylant’s death; we reverse the judgment insofar as it concluded that Bethany was entitled to an undivided one-half interest in the 71.73-acre parcel and the 15-acre parcel and that Ken, Adam, Blake, and Will were each entitled to an undivided one-eighth interest in the 71.73-acre parcel and the 15-acre parcel; we affirm the judgment of the circuit court in all other respects; and we remand the action to the circuit court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . Pylant's attorney drafted the separation agreement based on information provided by Pylant. The 26 acres referred to in paragraph 1 of the separation agreement were part of the 71.73-acre parcel. It appears that the phrase "the rest of the land” in paragraph 2 was intended to refer to the rest of the 71.73-acre parcel. If so, "the rest of the land” referred to in paragraph 2 contained 45.73 acres rather than 60.71 acres.

      . Paragraph 3 refers to the 15-acre parcel.

      . The 71.73-acre parcel and the 15-acre parcel contain a total of 86.73 acres.

      . Kim owns a parcel of land with a street address of 2384 Cox Road, which abuts the 71.73-acre parcel.

      . Subtracting the 10 acres devised to Kim and Katie in paragraph (1) from the 71.73-acre parcel would leave 61.73 acres in the 71.73-acre parcel. Those 61.73 acres plus the 15 acres in the 15-acre parcel would equal 76.73 acres.

      . The “approximately 86-acre parcel of farm property in Auburn at issue in this case— including two residences, pasture, and a hay field” refers to the 71.73-acre parcel and the 15-acre parcel.

      . The house with a street address of 2010 Cox Road.

      . The blue house with a street address of 1990 Cox Road.

      . The blue house with a street address of 1990 Cox Road.

      . The house with a street address of 2010 Cox Road.

      .The notice of appeal named the appellant as "Guardian ad Litem to Kim Bond’s children”; however, the appellant’s brief filed in that appeal presented argument on behalf of Katie only.