author: BRYAN, Judge.

text:
    Mary BOURGEOIS v. Louie HUGHES and Styx, L.L.C.
    2080981.
    Court of Civil Appeals of Alabama.
    April 23, 2010.
    Certiorari Denied Aug. 6, 2010 Alabama Supreme Court 1091104.

      Taylor D. Wilkins, Jr., and Robert W. Waller, Jr., of Wilkins, Bankester, Biles & Wynne, Bay Minette, for appellant.
    David P. Vaughn, Daphne, for appellees.
   BRYAN, Judge.

Mary Bourgeois, the plaintiff below, appeals from a judgment insofar as it found in favor of two of the defendants below, Styx, L.L.C. (“Styx”), and Louie Hughes, an agent of Styx. We affirm in part, reverse in part, and remand.

On April 4, Bourgeois, who is a real-estate agent, and Styx entered into an agreement titled “Real Estate Sales Contract” (“the original contract”). Hughes signed the original contract only in his capacity as an agent of Styx; he did not sign the original contract in his individual capacity. The original contract stated, in pertinent part:

“The undersigned purchaser, Styx, L.L.C. and/or its assigns, hereby agrees to purchase and the undersigned seller, Mary Bourgeois, agrees to sell the following described real estate, together with all improvements, shrubbery, fixtures and appurtenances, situated in the County of Baldwin, Alabama, on the terms stated below:
“1. The Purchase Price shall be $273,510.00, payable as follows:
“Earnest money $5,000.00
“Cash on Closing balance of purchase price
“Contingent upon:
“a. [Styx’s] ability to obtain a 20 year conventional mortgage in the amount of the purchase price bearing an interest rate not to exceed 6.75% computed monthly, on or before the date the sale is to be closed, which [Styx] agree[s] to apply for immediately and accept promptly if tendered....
“b. [Styx’s] approval of a title commitment to be obtained within five days of the date of this contract for its review.
“6. Condition of the Property: It shall be the responsibility of [Styx], at [Styx’s] expense, to satisfy itself that all conditions of this contract are satisfied before closing. After closing, all conditions of the property are the responsibility of [Styx].
“7. Escrow: In the event the proposed sale does not take place due to a default by [Bourgeois], [Styx] is entitled to a full refund of the $5,000.00 paid into escrow and held by Plantation Title Company. In the event of a default by [Styx], [Bourgeois] shall be entitled to retain the sums held in escrow as liquidated damages.
“8. Other terms or conditions:
“a. Styx LLC will have a 45 day due diligence period beginning from date of contract. Closing will be within 8 days of the completion of due diligence or after the due diligence period, which ever comes first. Must close on or before May 26, [20]08.
“c. In the event [Bourgeois] receives a bona fide offer to purchase during the period of due diligence, Styx, LLC shall have a right of first refusal to match that offer. If Styx, LLC exercises that right, closing must take place within fifteen days. If Styx, LLC fails to close within 15 days, [Bourgeois] shall be entitled to the escrow deposit as liquidated damages.”

Styx paid the $5,000 in earnest money to Plantation Title Company, Inc. (“Plantation”), to be held in escrow, began investigating the property to determine whether it was suitable for the use that Styx intended to make of it, and obtained satisfactory financing.

Several days before May 19, 2008, the last day of the 45-day period the original contract had specified for Styx to complete its investigation of the property, Styx requested that Bourgeois agree to extend the time for Styx to complete that investigation. After Bourgeois and Styx had exchanged several drafts of a proposed extension agreement, Bourgeois and Hughes signed an agreement titled “Extension of Real Estate Sales Contract” (“the extension agreement”) on May 17, 2008. Hughes signed the extension agreement only in his capacity as an agent of Styx; he did not sign it in his individual capacity. The extension agreement stated:

“The undersigned parties to the real estate contract dated April 4, 2008, hereby acknowledge that it is necessary for [Styx] to have additional time to complete its due diligence in order to close on the property and therefore agree to extend period of due diligence to June 18, 2008 and closing shall take place no later than June 26, 2008.
“Due diligence must be completed and acceptance on completion by [Styx] given to [Bourgeois] in writing no later than June 18, 2008.
“In consideration of the above extension, [Styx] shall pay $5,000.00 as an additional escrow deposit to Plantation Title Company upon receipt of the signed extension and provide proof of payment to [Bourgeois]. As of May 16, 2008 the total deposit held by Plantation Title is $10,000.00.
“Upon the expiration of the due diligence period [on] June 18, 2008 and provided that [Styx] is satisfied with its findings and information, at that time the sums held in escrow will become non-refundable.
“All other terms of the contract shall remain in full force and effect.”

Styx completed its investigation of the property before June 18, 2008, and determined, based on information it had gathered during its investigation, that the property was not suitable for the use Styx had intended to make of the property; however, Styx did not communicate its decision to Bourgeois until Styx’s attorney sent Bourgeois a letter informing her of Styx’s decision not to buy the property on June 20, 2008. Also on June 20, Bourgeois sent Plantation a letter notifying it that Hughes and Styx “did not comply with the terms of the contract extension agreement and failed to submit in writing its findings and information on or before June 18, 2008,” and requesting that it “retain the deposit in the amount of $10,000” until Bourgeois’s attorney had spoken with Styx’s attorney. Plantation subsequently informed Bourgeois that Styx had not deposited with Plantation the $5,000 required by the extension agreement.

Although Bourgeois had maintained a for-sale sign on the property from April 4, 2008, through June 20, 2008, she did not receive any other offers to buy the property during that period.

On September 9, 2008, Bourgeois sued Hughes, Styx, and Plantation, seeking damages based on claims of breach of contract, misrepresentation, and suppression. In addition, she sought a declaratory judgment regarding the rights of the parties with respect to the earnest money and an order compelling Plantation to interplead the earnest money.

Hughes, Styx, and Plantation denied liability, and the action proceeded to trial. After hearing ore tenus evidence in a bench trial, the trial court entered a judgment finding in favor of Hughes, Styx, and Plantation without stating its rationale. Bourgeois filed a postjudgment motion, which the trial court denied. Bourgeois then timely appealed the judgment as to Hughes and Styx to this court. Because the appeal was within the supreme court’s jurisdiction, we transferred it to the supreme court. The supreme court then transferred the appeal back to this court pursuant to § 12-2-7(6), Ala.Code 1975.

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

“ ‘ “ ‘[Wjhen 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.” ’ Waltman 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.’ Waltman 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).

Bourgeois first argues that the trial court erred in finding in favor of Hughes and Styx insofar as Bourgeois claimed that Hughes and Styx had breached the original contract by failing to complete their investigation of the property by May 19, 2008, and by failing to close the sale by May 26, 2008, because, she says, Hughes and Styx’s failure to complete their investigation of the property and their failure to close the sale by the deadlines specified in the original contract were not excused by the extension agreement because, Bourgeois says, the extension agreement did not become a binding contract due to Hughes and Styx’s failure to deposit with Plantation the $5,000 required by the extension agreement. Bourgeois’s first argument has no merit with respect to Hughes because he was not a party to the original contract; he signed the original contract only in his capacity as an agent of Styx. See Southern Med. Health Sys., Inc. v. Vaughn, 669 So.2d 98, 99 (Ala.1995) (“In the ordinary breach of contract action, the claimant must prove: (1) the existence of a valid contract binding the parties in the action, (2) his own performance under the contract, (3) the defendant’s nonperformance, and (4) damages.” (emphasis added)).

Bourgeois’s first argument has no merit with respect to Styx because the consideration for the extension agreement consisted of mutual promises by Bourgeois and Styx. Bourgeois promised to extend the time for Styx to investigate the property and to close the sale, and Styx promised to deposit an additional $5,000 with Plantation. It was Styx’s promise to deposit the additional $5,000 with Plantation rather than its performance of that promise that constituted the consideration for Bourgeois’s promise. See 17A Am.Jur.2d Contracts § 128 (2004) (“Mutual promises are generally held to be sufficient consideration for each other; a promise by one party to an agreement is sufficient consideration for a promise by the other party. This rule applies in cases of plainly expressed promises, of promises implied from conduct, and of promises ascertained only by a proper interpretation of the contract. It is the promise, and not the performance of the promise, that constitutes the consideration for the promise. Therefore, nonperformance of a promise that was the consideration for another promise does not constitute want of consideration, although it may be grounds for an action for damages.” (emphasis added; footnotes omitted)). Therefore, the extension agreement was a binding contract that extended the time for Styx to complete its investigation of the property and to close the sale. Accordingly, the trial court did not err in finding in favor of Hughes and Styx insofar as Bourgeois claimed that they had breached the original contract.

Bourgeois also argues that the trial court erred in finding in favor of Hughes and Styx insofar as Bourgeois claimed that they had breached the extension agreement by failing to deposit an additional $5,000 with Plantation as required by the extension agreement and by failing to notify her that Styx had determined that the property was unsuitable on or before June 18, 2008. The trial court did not err in finding in favor of Hughes with respect to that claim because Hughes was not a party to the extension agreement; he signed the extension agreement only in his capacity as an agent of Styx. See Southern Med. Health Sys., Inc. v. Vaughn, 669 So.2d at 99.

We conclude that the trial court did not err insofar as it found in favor of Styx with respect to Bourgeois’s claim that Styx breached the extension agreement by failing to notify Bourgeois that Styx had determined that the property was unsuitable on or before June 18, 2008, because the plain terms of the extension agreement required Styx to give Bourgeois notice by June 18, 2008, only if Styx had determined that the property was suitable, an eventuality that did not occur.

However, we conclude that the trial court did err insofar as it found that Styx had not breached the extension agreement by failing to deposit an additional $5,000 with Plantation as required by the extension agreement, although we further conclude that Bourgeois did not suffer any actual damage because the condition precedent to the earnest money becoming nonrefundable did not occur. The extension agreement provided that the earnest money would become nonrefundable only if “[Styx] is satisfied with its findings and information” regarding the property. The undisputed evidence established that Styx was not satisfied with its findings and information regarding the property, and, therefore, the earnest money did not become nonrefundable. Consequently, Bourgeois is entitled to recover only nominal damages for Styx’s failure to deposit an additional $5,000 with Plantation. See Roberson v. C.P. Allen Constr. Co., [Ms. 2080537, Jan. 29, 2010] (Ala.Civ.App.2010). In Roberson v. C.P. Allen Constr. Co., this court stated:

“Under Alabama law, an award of nominal damages is proper when a defendant breached a contract but the plaintiff either suffered no actual damage or failed to prove actual damage. James S. Kemper & Co. [v. Cox & Assocs.], 434 So.2d [1380,] at 1385 [(Ala.1983) ]. Nominal damages are not based on the extent of any loss sustained by the breach but are awarded in recognition for the invasion of the legal rights of the plaintiff. See Avis Rent-A-Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1120 (Ala.2003). Alabama law has not heretofore established any limit on the amount that can be awarded as nominal damages, but, by their very nature, such damages are intended to be ‘[a] trifling sum awarded when a legal injury is suffered but when there is no substantial loss or injury to be compensated’ or ‘[a] small amount fixed as damages for breach of contract without regard to the amount of harm.’ Black’s Law Dictionary 418 (8th ed.2004) (emphasis added); see also Williams v. Citizens Bank of Guntersville, 350 So.2d 1031, 1033 (Ala.1977) (recognizing, in dicta, that nominal damages are ‘“a small sum fixed, without regard to the extent of harm done, by the custom of the jurisdiction in which the action is brought” ’ (quoting Corbin on Contracts, Vol. 5, § 1001, p. 29-30, and citing Kelly v. Fahrney, 97 F. 176 (C.C.W.D.Ark.1899))); Zok v. Alaska, 903 P.2d 574, 578 (Alaska 1995) (‘Nominal damages are by definition minimal monetary damages.’). Nominal damages definitely are not intended as approximations of the compensatory damages that could have or should have been proven.”

Bourgeois also argues that the trial court erred in finding in favor of Hughes and Styx insofar as Bourgeois claimed that Hughes and Styx were liable for misrepresentation based on the provision in the extension agreement stating that Styx “shall pay $5,000.00 as an additional escrow deposit to Plantation Title Company upon receipt of the signed extension and provide proof of payment to [Bourgeois].”

“[T]o support a claim of promissory fraud, the plaintiff must show that at the time of the alleged misrepresentation (that is, the promise), the defendant intended not to do the act or acts promised, but intended to deceive the plaintiff. [Johnston v. Green Mountain, Inc., 623 So.2d 1116, 1121 (Ala.1993)].
“The burden is on the plaintiff to prove that when the promise was made the defendant intended to deceive. Martin v. American Medical Int’l, Inc., 516 So.2d 640 (Ala.1987); P & S Bus., Inc. v. South Cent. Bell Tel. Co., 466 So.2d 928 (Ala.1985). The plaintiff cannot meet his burden merely by showing that the alleged promise ultimately was not kept; otherwise, any breach of contract would constitute a fraud. Purcell Co. v. Spriggs Enterprises, Inc., 431 So.2d 515, 519 (Ala.1983).”

Goodyear Tire & Rubber Co. v. Washington, 719 So.2d 774, 776 (Ala.1998).

In the case now before us, Bourgeois did not introduce any evidence tending to prove that, at the time of the promise, Hughes and Styx intended not to perform the promise and intended to deceive Bourgeois. Bourgeois’s proof that the promise ultimately was not kept was not sufficient by itself to establish promissory fraud. Id. Therefore, the trial court did not err in finding in favor of Hughes and Styx insofar as Bourgeois claimed that they were liable for misrepresentation based on the promise in the extension agreement that Styx would deposit an additional $5,000 with Plantation.

Bourgeois also argues that the trial court erred in finding in favor of Hughes and Styx insofar as Bourgeois claimed that they were liable for misrepresentation based on the statement in the extension agreement that, “[a]s of May 16, 2008 the total deposit held by Plantation Title is $10,000.00.” However,

“[t]o recover in a fraud action filed after March 14, 1997, a plaintiff must prove that he or she reasonably relied on the defendant’s alleged misrepresentation. Foremost Ins. Co. v. Parham, 693 So.2d 409 (Ala.1997). The reasonable-reliance standard was the law before the release of Hickox v. Stover, 551 So.2d 259 (Ala.1989), and again became the law for all actions filed after March 14, 1997. This standard was well-stated in Torres v. State Farm Fire & Casualty Co., 438 So.2d 757, 758-59 (Ala.1983):
“ ‘Because it is the policy of courts not only to discourage fraud but also to discourage negligence and inattention to one’s own interests, the right of reliance comes with a concomitant duty on the part of the plaintiffs to exercise some measure of precaution to safeguard their interests. In order to recover for misrepresentation, the plaintiffs’ reliance must, therefore, have been reasonable under the circumstances. ...
“ ‘ “If the purchaser blindly trusts, where he should not, and closes his eyes where ordinary diligence requires him to see, he is willingly deceived, and the maxim applies, ‘volunti non fit injuria.’ ”[]
‘Munroe v. Pritchett, 16 Ala. 785, 789 (1849).’ ”

Alfa Life Ins. Corp. v. Green, 881 So.2d 987, 991-92 (Ala.2003) (footnote omitted).

“The return to the reasonable-reliance standard imposes again on a plaintiff a ‘general duty ... to read the documents received in connection with a particular transaction,’ Foremost [Ins. Co. v. Parham ], 693 So.2d [409] at 421 [ (Ala. 1997) ], together with a duty to inquire and investigate. ‘Fraud is deemed to have been discovered when the person either actually discovered, or when the person ought to or should have discovered, facts which would provoke inquiry by a person of ordinary prudence, and, by simple investigation of the facts, the fraud would have been discovered.’ Gonzales v. U-J Chevrolet Co., 451 So.2d 244, 247 (Ala.1984). As this Court stated in Ex parte Caver, 742 So.2d 168, 172-73 (Ala.1999):
‘Foremost ended the era of “ostri-chism” that had been heralded in when this Court adopted the “justifiable reliance” standard in Hickox v. Stover, 551 So.2d 259 (Ala.1989), and it foreclosed the right of a person to blindly rely on an agent’s oral representations or silence to the exclusion of written disclosures in a policy.’
“When reviewing a plaintiffs actions pursuant to the reasonable-reliance standard, this Court has consistently held that a plaintiff who is capable of reading documents, but who does not read them or investigate facts that should provoke inquiry, has not reasonably relied upon a defendant’s oral representations that contradict the written terms in the documents.”

AmerUs Life Ins. Co. v. Smith, 5 So.3d 1200, 1208 (Ala.2008).

In the case now before us, the provision in the extension agreement that “[Styx] shall pay $5,000.00 as an additional escrow deposit to Plantation Title Company upon receipt of the signed extension and provide proof of payment to [Bourgeois]” would have indicated to a reasonable person that, as of the signing of the extension agreement on May 17, 2008, Styx had not yet deposited with Plantation the additional $5,000 required by the extension agreement. This provision clearly contradicted the subsequent statement in the extension agreement that, “[a]s of May 16, 2008 the total deposit held by Plantation Title is $10,000.00.” Moreover, Bourgeois knew that she had not received any proof of such a deposit before the signing of the extension agreement on May 17, 2008. Consequently, she could not have reasonably relied on the statement in the extension agreement that, “[a]s of May 16, 2008, the total deposit held by Plantation Title is $10,000.” Therefore, the trial court did not err insofar as it found in favor of Hughes and Styx with respect to Bourgeois’s misrepresentation claim based on that statement.

Bourgeois has not presented any issues or argument regarding her other claims. Consequently, we do not consider those claims. See Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (“ ‘An appeals court will consider only those issues properly delineated as such, and no matter will be considered on appeal unless presented and argued in brief. Ex parte Riley, 464 So.2d 92 (Ala. 1985)’ ” (quoting Braxton v. Stewart, 539 So.2d 284, 286 (Ala.Civ.App.1988)) (emphasis omitted)).

In summary, we reverse the trial court’s judgment insofar as it found in favor of Styx with respect to Bourgeois’s claim that Styx had breached the extension agreement by failing to deposit an additional $5,000 with Plantation as required by the extension agreement; we affirm the trial court’s judgment in all other respects; and we remand the action 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.

      . Plantation tendered the $5,000 in its possession to the trial-court clerk; however, the clerk returned it to Plantation. The record does not indicate why the clerk returned it.

      . See Black's Law Dictionary 1605 (8th ed.2004), defining the maxim "volenti non fit injuria " as "[t]he principle that a person who knowingly and voluntarily risks danger cannot recover for any resulting injury.”


source: Caselaw Access Project

license: Public Domain

text:
    L.M.W. v. ETOWAH COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2090233.
    Court of Civil Appeals of Alabama.
    June 18, 2010.
    Rehearing Denied Aug. 6, 2010.
    Shaun Malone, Gadsden, for appellant.

      Sharon E. Ficquette, chief legal counsel, and Kimberly J. Dobbs, asst. gen. counsel, Department of Human Resources, for ap-pellee.
   BRYAN, Judge.

L.M.W. (“the mother”) appeals from a judgment of the Etowah Juvenile Court that terminated her parental rights to S.N.B. (“the child”), a boy born in November 1999.

On August 18, 2009, the Etowah County Department of Human Resources (“DHR”) filed a petition to terminate the parental rights of the mother and L.N.B. (“the father”) to the child. The juvenile court conducted an ore tenus hearing on DHR’s petition on October 14, 2009, and November 18, 2009. On December 1, 2009, the juvenile court entered an order terminating the parental rights of the mother and the father to the child. The mother timely appealed.

The evidence in the record revealed that DHR first became involved with the mother and the child in December 1999 when DHR investigated a child-abuse and neglect report filed against the mother alleging neglect and inadequate supervision of the child. That report was found to be “indicated” and, between December 1999 and May 2007, DHR investigated the mother on four other occasions, also on allegations of neglect and inadequate supervision, but there were no other indicated reports. In May 2007, DHR was called to investigate a claim that the child, who was seven years old at the time, had obtained gasoline and matches and had burned down a storage building behind the mother’s home. Shortly thereafter, DHR took custody of the child after the mother tested positive for methamphetamine.

DHR set up an Individualized Service Plan (“ISP”) for the mother that included a psychological evaluation, outpatient substance-abuse treatment, individual counseling, random drug screens, and supervised visitation with the child. When the child was placed in foster care, Charlotte Jones, a licensed counselor, began individual counseling with the mother and the child. Jones was asked by DHR to address the mother’s parenting skills, and Jones stated that the mother had a problem accepting responsibility for the actions that contributed to the child being placed in foster care.

Dr. David Wilson, a licensed psychologist, performed a psychological evaluation of the mother in June 2007 and a psychological evaluation of the child in July 2007. Dr. Wilson testified that the mother failed to grasp the seriousness of the situation regarding the child’s burning down the storage building. Dr. Wilson characterized the mother as defensive, and he stated that his main concerns about the mother were that she was not willing to admit that she had problems and that she was either unaware of the child’s behavioral problems or pretended that the child’s behavioral problems did not exist. At the time Dr. Wilson evaluated the child, the child had displayed behavioral issues such as having tantrums, hitting other children in foster care, and stealing. The child was diagnosed with attention deficit/hyperactivity disorder (“ADHD”) and adjustment disorder. In order for the child to be successful, Dr. Wilson stated, the child needed a great deal of structure, a great deal of supervision, and organization to be provided by a parental figure. In his opinion, medication alone would not solve all the child’s behavioral problems.

The mother completed all the goals set forth in her ISP in November 2007, and DHR placed the child in the mother’s custody in December 2007 for a trial-placement period. After the child was returned to the mother, Jones provided in-home counseling services to the mother and the child. The child’s school reported that the child had begun exhibiting behavioral problems in February 2008 because he was not taking his prescribed medication. It is undisputed that the mother was responsible for administering the child’s medication and that she had allowed the child’s Medicaid coverage to lapse. However, the mother testified that the child’s Medicaid coverage had lapsed because she was unable to timely get the child’s birth certificate from DHR, although representatives from DHR disputed that claim. Talessia English, a caseworker with DHR, admitted that the child had behavioral problems whether he took his medication or not.

English conducted an ISP meeting with the mother in March 2008, after the child had been suspended from school, and English overheard the mother threatening to beat the child if he did not behave while they were at DHR’s offices. English confronted the mother and advised her to speak to the child in a different manner so he would not defy her, but the mother did not acknowledge that she had handled the situation inappropriately. English stated that the mother was not open or receptive to suggestions on how to manage the child’s behavioral problems. The child’s case was removed from English’s caseload in March 2008, and the mother regained legal custody of the child in May 2008.

The mother’s in-home counseling services with Jones were increased from once a week to twice weekly after the March 2008 ISP meeting, and, after the meeting, the mother told the child that it was his fault that DHR would be coming to their home twice a week. Jones testified that she had worked with the mother on developing a behavior-modification plan for the child that kept the child on a schedule, which, according to Jones, was very important for a child diagnosed with ADHD. Jones observed that the mother had trouble functioning in her role as a parent and that the mother often exhibited argumentative behavior with the child. Jones stated that she never witnessed the mother or the child display any affection toward one another, that she did not notice a bond between the mother and the child, and that the mother blamed the child for her problems. Jones testified that the mother appeared to resent DHR’s involvement, and Jones stated that the mother had gone “through the motions” of counseling to fulfill DHR’s requirements but had not listened or applied what Jones was trying to teach her. Jones asked the mother what she thought she could do to improve her relationship with the child, and the mother told Jones that there was nothing for her to do because the child was the problem.

In August 2008, DHR received a report that the child’s half sister had been hit by an automobile while in the mother’s care. The half sister was not seriously injured, but the child told one of his teachers that the mother had blamed him for the half sister’s accident. The mother testified that the child did well in her home during the summer of 2008, but he started exhibiting behavioral problems again once he returned to school in August 2008. DHR received a telephone call from the child’s school on August 20, 2008, with a report that the child had been caught playing with human feces in the boys’ restroom, that he had been taunting other children, and that several people had expressed a concern about a lack of supervision over the child.

The mother took the child to Mountain View, a psychiatric hospital, on Thursday, August 21, 2008. DHR became aware that the child had been admitted to Mountain View on August 25, 2008, and at some point before August 27, 2008, DHR asked Mountain View to notify DHR if the mother tried to remove the child from the hospital. On August 27, 2008, the mother went to Mountain View to inquire about visiting the child and asked if he could be released. The mother apparently wanted to take the child to be treated by his private physician, but the mother was told that the child’s doctor did not recommend that the child be released. An employee at Mountain View called Betty Young, a supervisor at DHR, and the mother was informed by personnel at Mountain View that DHR had told Mountain View not to release the child to the mother.

DHR received a pick-up order for the child on August 27, 2008, and the child was discharged from Mountain View on September 19, 2008, into a therapeutic.foster home. Susan Jones, a caseworker with DHR, stated that the mother expressed anger at the child’s school for failing to test him for special education and aggravation with DHR because she felt that she already knew everything about parenting a child with ADHD. DHR discontinued counseling services between the mother and Jones, and DHR referred the mother to a new counselor, Rosa Statem, for a new perspective on what could be done to address the child’s behavioral issues. The mother met with Statem for two counseling sessions, and the mother told Statem that there was nothing Statem could tell her that she did not already know. Sta-tem terminated counseling with the mother because of the mother’s mindset.

Talessia English was reassigned the child’s case in October 2008, and English discussed with the mother her need for further individual counseling and English’s concerns about statements made by the mother that there was not anything that the counselors could teach her. The mother explained that Statem must have misunderstood her and that she was anxious to participate in counseling to learn how to address the child’s behavioral problems. English referred the mother to Connie Swafford, a counselor with New Foundations Family Services. Swafford testified that she counseled the mother from February 17, 2009, through March 31, 2009, and that her counseling sessions were focused on helping the mother learn to address the child’s behavioral issues in order to provide a safe and secure home environment for the child. Swafford stated that she terminated services with the mother after six counseling sessions because the mother was not making any progress and because Swafford was unable to get the mother to admit that there was a problem with the child’s behavior. Swafford stated that, if the mother ever acknowledged that the child’s behavior was inappropriate, the mother would offer an excuse to justify the behavior, such as the fact that the child did not have a father figure in his life. Swaf-ford stated that she did not believe further counseling would have been successful because the mother did not think she needed counseling and she could not take responsibility as a parent for the child’s behavior. After Swafford terminated counseling services with the mother in March 2009, DHR did not offer the mother any further services, other than visitation.

DHR also offered counseling to the child when he was returned to foster care, and he received individual counseling through CED Mental Health. According to English, the child’s medication was increased and he was doing well in the therapeutic foster home where he had been placed after leaving Mountain View in September 2008. The child’s foster parents were using a behavior-modification plan that kept the child on a schedule, the child was enrolled in a different school, and he made the A/B honor roll.

However, in the summer of 2009, the juvenile court allegedly held a permanency hearing for the child and rejected a proposal by DHR to place the child with the father in Florida. The child was extremely distraught after hearing that he was not going to live with the father, apparently because the mother had told him that she and the half sister would move to Florida with him. The child began exhibiting behavioral problems shortly after the court hearing, and he was removed from the therapeutic foster home where he had been succeeding and was placed in a second therapeutic foster home on August 26, 2009, which resulted in another change of school. The child was suspended from that school for stabbing a classmate with a pencil. He subsequently hit his foster parent, and he was then placed in a third therapeutic foster home around September 7, 2009. Approximately 4 days later, the child ran away while he was at church with the foster parents, and English stated that, when the police found him approximately 10 minutes after he ran away, the child’s behavior was “out of control.” The child threw chairs at the police officers, shouted profanities at the police officers, and had to be handcuffed. The child was transported to Mountain View, and he remained there for 11 days. He was then transferred to the Boyd School on September 21, 2009, and he remained there at the time of the final hearing.

Dr. Dennis Sizelove, a licensed psychologist, testified that he had performed a psychological evaluation of the child on September 17, 2009, while the child was in Mountain View after running away from the third therapeutic foster home. Dr. Sizelove diagnosed the child as having ADHD as well as schizoaffective disorder, which he described as a mixture of mood symptoms and psychotic symptoms, such as hallucinations or delusions. At the time Dr. Sizelove evaluated the child, the child was prescribed Seroquel, an antipsychotic drug, three times a day. Dr. Sizelove stated that the child appeared to have low self-esteem and that the child was very defensive during the evaluation. According to Dr. Sizelove, the child needed to be treated with medication and therapeutic intervention and, additionally, needed an environment that was structured and that kept stress to a minimum. Furthermore, he stated that, in light of the child’s specific diagnosis, the child would need to have positive reinforcement structure and boundaries for a significant amount of time in order for the child to be successful. Dr. Sizelove indicated that negative and demeaning statements made to the child would have a more negative affect on the child, given his condition, than on a normal child. Dr. Sizelove stated that the child had indicated that he was bonded to the mother and that he looked forward to her visits.

English kept the mother apprised of the child’s circumstances throughout this time frame, and English stated that the mother seemed indifferent. When English notified the mother that the child had been returned to Mountain View, the mother responded by saying, “I’m glad you all see now that it’s not me.” English stated that the mother had not demonstrated an ability to care for the child, that the mother had not changed her situation since May 2007 regarding how she deals with the child, that the mother had not accepted responsibility as a parent to do what is necessary in order to effectively care for the child, that the mother could not recognize the significance of the child’s behavioral problems, and that, although she participated in counseling, the mother was still not willing to implement any suggestions given to her during counseling sessions. English opined that the uncertainty in the child’s situation was contributing to his behavioral problems, and she stated that she saw no evidence that the mother would be able to care for the child in the future.

Ken Swafford, a family-service worker, supervised visits between the child and the mother from March 2009 through November 2009. He stated that the mother had inappropriate discussions with the child about the court case and about taking the child and the half sister to live in Florida. Ken Swafford stated that he had asked the mother not to discuss those things with the child present and that the mother had complied with his request. He also stated that he rarely saw the mother display any affection toward the child during visits, although English testified that the mother had displayed affection towards the child at the visits just before the termination hearings. English stated that the child runs to and hugs her, her supervisor, and the guardian ad litem every time he sees them. English stated that he does not have the same reaction when he sees the mother.

The mother disputed any testimony that she did not demonstrate affection for the child. She stated that she had told the child that she loved him every day before dropping him off at school and that she and the child had interacted well during visits. She stated that Ken Swafford had asked her how the court hearings went and that he had never asked her not to say anything about the proceedings in front of the child. The mother stated that she did not see anything wrong with the way she spoke to or addressed the child. In response to the question whether there was anything that the mother could do differently to help the child, she stated that the child’s behavior could be “great” with the proper level of medication but that, even with the proper level of medication, she would have to closely supervise the child.

English stated that the permanency plan for the child was adoption but that DHR could keep custody of the child, allow the child to remain in a foster-care facility, and allow the mother to continue visiting the child. However, English did not believe that that arrangement would be in the child’s best interest. English stated that DHR had tried every possible alternative to reunification, that DHR had looked for other paths to reunification, that none had been successful, and that she could not recommend that the mother receive custody of the child. English admitted that the mother’s home was not an issue, that the mother’s employment was not an issue, and that the child’s safety in the mother’s home was not an issue. English explained that when she said that the mother had failed to change her circumstances, she meant that the situation that the mother had failed to change was “her attitude and her way in which she deals with [the] child.” English also testified that DHR’s problem with the mother was that she was not dealing with the child’s behavioral problems in the way that the counselors and DHR thought that she should.

It was undisputed that the mother loved the child, that the child loved the mother, that the child wanted to return to the mother’s home, and that the mother had consistently exercised her visitation rights with the child. The mother had not tested positive for an illegal drug since the initial positive drug screen in May 2007. According to the mother, she had done research on ADHD and had implemented some suggestions made by Charlotte Jones about creating a schedule for the child, praising the child, and encouraging him. She testified that neither Rosa Statem nor Connie Swafford had given her any instruction on how to handle a child with ADHD. English asked the mother in October 2008 about possible relative resources that might be available for the child, but the mother did not give DHR any names of possible resources.

In determining whether to terminate parental rights, a juvenile court is required to apply a two-prong test: “(1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights.” B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004) (citing Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990)). The juvenile court, for a finding of dependency, must consider whether there are grounds for terminating a parent’s parental rights. K.A.P. v. P.P., 11 So.3d 812, 817 (Ala.Civ.App.2008).

The statutory grounds for terminating parental rights are set forth in § 12-15-319, Ala. Code 1975. That section provides, in pertinent part:

“(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following....”

A juvenile court is then permitted to consider circumstances listed in 12 numbered subsections. Subsection (7) requires the juvenile court to consider that reasonable efforts made by DHR “leading toward the rehabilitation of the parents have failed,” and subsection (12) requires the juvenile court to consider the parent’s lack of effort to “adjust his or her circumstances to meet the needs of the child in accordance with agreements reached” with DHR.

On appeal the mother presents two issues for review by this court: (1) she argues that DHR failed to present clear and convincing evidence that she was unable or unwilling to discharge her responsibilities to and for the child or that her condition or conduct was such as to render her unable, presently and in the foreseeable future, to properly care for the child, and (2) she argues that the juvenile court failed to consider viable alternatives to terminating her parental rights.

“This court’s standard of appellate review of judgments terminating parental rights is well settled. A juvenile court’s factual findings, based on ore tenus evidence, in a judgment terminating parental rights are presumed to be correct and will not be disturbed unless they are plainly and palpably wrong. See, e.g., F.I. v. State Dep’t of Human Res., 975 So.2d 969, 972 (Ala.Civ.App.2007). Under express direction from our supreme court, in termination-of-parental-rights cases this court is ‘required, to apply a presumption of correctness to the trial court’s finding[s]’ when the trial court bases its decision on conflicting ore ten-us evidence. Ex parte State Dep’t of Human Res., 834 So.2d 117, 122 (Ala.2002) (emphasis added). Additionally, we will reverse a juvenile court’s judgment terminating parental rights only if the record shows that the judgment is not supported by clear and convincing evidence. F.I., 975 So.2d at 972.”

J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1183 (Ala.Civ.App.2007) (footnote omitted).

First, the mother argues that DHR failed to present clear and convincing evidence to show that the child was dependent within the meaning of § 12-15-319. The mother argues that she completed everything that DHR required of her pursuant to her ISP and that the only relevant question is whether clear and convincing evidence demonstrated that her efforts to comply with counseling had failed.

“[T]he question whether reasonable efforts to rehabilitate a parent have succeeded so that the family can be reunited is a question of fact for the juvenile court. [H.H. v. Baldwin County Dep’t of Human Res., 989 So.2d 1094, 1098 (Ala.Civ.App.2008) (main opinion authored by Moore, J., with Thompson, P.J., and Bryan, J., concurring in the result) ]; see also J.B.[ v. Jefferson County Dep’t of Human Res.], 869 So.2d [475,] 482 [ (Ala.Civ.App.2003) ]. In making that determination, the juvenile court must first identify the parental conduct, circumstances, or condition that led to the removal of the children and prevented their return to the custody of the parent. ' H.H., supra. The juvenile court must then consider the efforts expended by the parent in overcoming those problems and the progress the parent has made in eliminating or reducing those problems, so that they no longer constitute a barrier to reunification. Id.”

T.B. v. Cullman County Dep’t of Human Res., 6 So.3d 1195, 1199 (Ala.Civ.App.2008). DHR bore the burden of proving, by clear and convincing evidence, that reasonable efforts at reunification had failed. Id. “Clear and convincing evidence” is “ ‘[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’ ” L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting § 6-11-20(b)(4), Ala.Code 1975).

DHR received custody of the child for the second time in August 2008, after the mother sought to remove the child from a psychiatric hospital against the advice of his doctor. DHR referred the mother to a different counselor, Rosa Statem, who could possibly provide new insight on how the mother could control the child and resolve his behavioral problems. However, Statem discontinued counseling services with the mother because the mother indicated to Statem that there was nothing Statem could tell her that she did not already know about how to parent the child. After English discussed the mother’s attitude toward counseling with the mother, English referred the mother to Connie Swafford, the third counselor to work with the mother since May 2007. Swafford conducted six counseling sessions with the mother before she terminated services with the mother because of the mother’s refusal to recognize the problems with the child’s behavior and her inability to take responsibility in resolving the child’s behavioral problems.

The evidence indicated that, throughout DHR’s involvement with the mother, the mother consistently blamed everyone, including DHR, the child’s school, and even the child himself, for her inability to regain custody of the child, and she could not recognize the fact that her conduct was the reason that the child was prevented from returning to her custody. Despite the fact that DHR offered the mother the services of three different counselors to help her develop the parenting skills needed to appropriately parent the child, DHR was unable to return the child to the mother’s custody because the mother was unable to recognize that she did not foster the type of therapeutic environment that the child needed to overcome his behavioral issues. That evidence was sufficient to place a firm conviction in the mind of the trier of fact that DHR made reasonable efforts to rehabilitate the mother so that she could be reunited with the child and that those efforts had failed. § 12-15-319(a)(7). Even if the mother’s efforts at rehabilitating herself through counseling could be described as good-faith efforts to try and adequately meet the needs of the child, this court has held that “ ‘[a]t some point, ... the child’s need for permanency and stability must overcome the parent’s good-faith but unsuccessful attempts to become a suitable parent.’” T.B., 6 So.3d at 1202 (quoting M.W. v. Houston County Dep’t of Human Res., 773 So.2d 484, 487 (Ala.Civ.App.2000)).

Although the evidence indicated that the child’s behavioral problems persisted after he was removed from the mother’s care, the evidence also indicated that the child was doing well in the first therapeutic foster home that he was placed in until the juvenile court did not approve the father as an appropriate placement for the child. The child’s behavioral problems then became so severe that he was removed from his foster home, where he had been doing well, and placed in two different therapeutic foster homes before being placed in the Boyd School, where he remained at the time of the final hearing. Because there was evidence indicating that the mother had told the child that she and the half sister would move to Florida with the child once the child was placed in the father’s custody, the juvenile court could have concluded that the mother’s influence on the child fostered an environment that was not conducive to the type of therapeutic environment that the child needed to manage his behavioral problems, i.e., an environment free from preventable stress. See C.W. v. State Dep’t of Human Res., 826 So.2d 171, 173 (Ala.Civ.App.2002) (affirming termination of a mother’s parental rights when her children demonstrated serious behavioral issues and mother was unable to provide “therapeutic care tailored to their individual emotional problems”). Accordingly, we conclude that clear and convincing evidence supported the juvenile court’s determination that the mother was unable or unwilling to discharge her responsibilities to and for the child. § 12-15-319(a).

Finally, the mother argues that the juvenile court failed to consider viable alternatives to termination of her parental rights.

“The determination of whether a viable alternative to termination of parental rights exists is a question of fact to be decided by the juvenile court. See Ex parte J.R., 896 So.2d 416 (Ala.2004). On appeal from ore tenus proceedings in a termination-of-parental-rights case, this court presumes that the juvenile court’s factual findings regarding viable alternatives are correct. See J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1183 (Ala.Civ.App.2007).”

J.B. v. Cleburne County Dep’t of Human Res., 991 So.2d 273, 282 (Ala.Civ.App.2008).

The mother argues that her parental rights should not have been terminated in light of the fact that the child was diagnosed with schizoaffective disorder in the month preceding the start of the final hearing. The mother argues that, if she had been aware of the child’s diagnosis, the child could have been given different medication and she could have been given a more appropriate behavior-modification plan for the child. However, Charlotte Jones testified that the behavior-modification plan that she had recommended to the mother for the child would not have changed even if she had known that the child had been diagnosed with schizoaffec-tive disorder because her recommended behavioral plan was based on the behavior of the mother and the child that she had witnessed during counseling. Furthermore, the evidence indicated that the mother placed all the blame for her situation on the child and his special needs, and the juvenile court could have concluded that, even with a different diagnosis, the mother would have continued to see the child as the only problem and that any further counseling services offered to the mother would have been futile.

In her argument, the mother cites J.B. v. DeKalb County Department of Human Resources, 12 So.3d 100, 116 (Ala.Civ.App.2008) (plurality opinion), wherein this court, discussing M.A.J. v. S.F., 994 So.2d 280 (Ala.Civ.App.2008), stated that

“the Alabama Juvenile Justice Act (‘the AJJA’), Ala.Code 1975, § 12-15-1 et seq., does not forbid lengthy stays in foster care, even placements exceeding a year; it only requires juvenile courts to use reasonable efforts to end foster-care placement in favor of a permanent placement when a parent is not making reasonable efforts to rehabilitate himself or herself or when reasonable efforts at family reunification are not required, have failed, or would be futile.”

The mother argues that there was evidence to show that she was making continued efforts to be reunited with the child. This suggests that the mother believes that the child should remain in foster care while she continues to rehabilitate herself so that she can be reunited with the child. Based on the evidence in the record, the juvenile court could have determined that it would not be in the best interest of the child to delay permanency in order to allow the mother to utilize the services of a fourth counselor. See J.C. v. State Dep’t of Human Res., 986 So.2d at 1191-94 (holding that the paramount consideration in termination-of-parental-rights proceeding is the best interests of the child). The evidence in the record indicated that the mother had the ability to complete goals set by DHR but that she had failed to demonstrate any real change in her conduct or circumstances that demonstrated that she had accepted the fact that the environment that she fostered in her home was contributing to the child’s inability to overcome his behavioral issues. Because the mother could not accept responsibility for any part of the child’s behavioral problems, the juvenile court could have concluded that to allow the mother additional time to receive further counseling would have been futile and would have only further delayed the establishment of permanency and stability in the child’s life. Furthermore, we have concluded that DHR made reasonable efforts to rehabilitate the mother and that those efforts had failed. Thus, the juvenile court could have concluded that allowing the child to remain in foster care beyond the presumptively reasonable time of 12 months, see M.A.J., supra, was not appropriate in this case because there was no indication that further rehabilitative efforts would have successfully reunited the mother and the child. Thus, we conclude that the evidence supports the juvenile court’s determination that there were no viable alternatives to terminating the mother’s parental rights to the child.

Accordingly, because DHR proved, by clear and convincing evidence, grounds for terminating the mother’s parental rights and that no viable alternatives to termination existed, we affirm the judgment of the juvenile court.

AFFIRMED.

PITTMAN and THOMAS, JJ., concur.

THOMPSON, P.J., and MOORE, J„ dissent, without writings.

      . The father has not appealed the judgment terminating his parental rights to the child.

      . Apparently, the mother had legal custody of the child’s half sister, but the half sister had lived with her paternal grandparents since she was an infant.

      . J.B. v. DeKalb County Department of Human Resources refers to the Alabama Juvenile Justice Act, § 12-15-1 et seq., Ala.Code 1975. However, the Alabama Legislature enacted a new Alabama Juvenile Justice Act ("the new AJJA”), § 12-15-101 et seq., Ala.Code 1975, that became effective January 1, 2009, and the new AJJA repealed or amended and renumbered the provisions in the former Alabama Juvenile Justice Act. Former § 12-15-62(c), Ala.Code 1975, which was discussed in M.A.J. v. S.F. required juvenile courts to hold a permanency hearing to determine a child’s disposition within 12 months of the date that a child first entered foster care. Section 12-15 — 62(c) was amended and renumbered in § 12-15-315, Ala.Code 1975, which is a part of the new AJJA, and the two provisions are substantially similar.


author: PER CURIAM.

text:
    Earnest Lee WALKER, Sr. v. Deborah TILLMAN.
    2090155.
    Court of Civil Appeals of Alabama.
    June 25, 2010.

      Earnest Lee Walker, Sr., pro se.
    Troy King, atty. gen., and Todd E. Hughes, asst. atty. gen., for appellee.
   PER CURIAM.

Earnest Lee Walker, Sr., an inmate at Donaldson Correctional Facility, appeals from the judgment dismissing Walker’s civil action against Mobile County assistant district attorney Deborah Tillman. Tillman prosecuted Walker in March 2009, obtaining convictions against him on charges of burglary, sexual abuse, attempted sodomy, and obstructing justice. In his complaint, Walker alleges that Tillman violated his civil rights, specifically, his right to due process under both the United States Constitution and the Alabama Constitution of 1901, by knowingly using what he said was false testimony to obtain the convictions. Walker based his claim on discrepancies between the testimony that certain witnesses gave at pretrial proceedings and the testimony they gave at his criminal trial.

Tillman moved to dismiss Walker’s civil action on the ground of prosecuto-rial immunity. The trial court granted the motion without elaboration. Walker, appearing pro se, appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

“The appropriate standard of review of a trial court’s [ruling on] a motion to dismiss is whether[,] ‘when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [the pleader] to relief.’ Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993); Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985). This Court does not consider whether the plaintiff will ultimately prevail, but only whether the plaintiff may possibly prevail. Nance, 622 So.2d at 299. A ‘dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.’ Nance, 622 So.2d at 299; Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).”

Lyons v. River Road Constr., Inc., 858 So.2d 257, 260 (Ala.2003); see also Rule 12(b), Ala. R. Civ. P.

Walker asserts that, because he sued Tillman in her individual capacity, prosecutorial immunity does not shield her from liability for developing a trial strategy that he claims deliberately violated the law.

In Van de Kamp v. Goldstein, 555 U.S. 335, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009), the United States Supreme Court discussed the relationship between a prosecutor’s absolute immunity and qualified immunity, which applies to public officials who are sued in their individual capacities. In that case, Goldstein filed a petition for writ of habeas corpus, alleging that, in obtaining a murder conviction against him, prosecutors in the Los Angeles County District Attorney’s Office had relied in large part upon the testimony of a jailhouse informant. Goldstein claimed that the informant’s testimony was unreliable and, indeed, false. He alleged that the informant had previously received reduced sentences for providing prosecutors with favorable information in other cases and that at least some prosecutors in the L.A. County District Attorney’s Office were aware of that favorable treatment. Gold-stein asserted that the prosecutors failed to provide that potential impeachment information to his attorney. 555 U.S. at -, 129 S.Ct. at 859.

An evidentiary hearing was held on Goldstein’s petition. After the hearing, the federal district court agreed with Gold-stein that the informant had not been truthful and that, if the prosecutors had told Goldstein’s lawyer that, in the past, the informant had received reduced sentences in return for favorable testimony, “it might have made a difference” in Gold-stein’s case. Id. The district court ordered the state to hold a new trial or to release Goldstein. Goldstein had already served 24 years of his sentence, and the state decided to release him rather than retry him. Id. Upon his release, Gold-stein sued his prosecutors, who claimed absolute immunity. In holding that the prosecutors were entitled to absolute immunity in such a situation, the Supreme Court reasoned that a prosecutor

“ ‘inevitably makes many decisions that could engender colorable claims of constitutional deprivation. Defending these decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials.’ [Imbler v. Pachtman, 424 U.S. 409,] at 425-26, 96 S.Ct. 984 [ (1976) ]. The Court thus rejected the idea of applying the less-than-absolute ‘qualified immunity that the law accords to other ‘executive or administrative officials,’ noting that the ‘honest prosecutor would face greater difficulty than would those officials ‘in meeting the standards of qualified immunity.’ Id., at 425, 96 S.Ct. 984.”

Van de Kamp, 555 U.S. at —, 129 S.Ct. at 860. Thtis, Walker’s attempt to avoid Tillman’s defense of absolute immunity by suing her in her individual capacity must fail.

Walker contends that, in allowing witnesses to testify falsely, Tillman acted outside of the scope of her duties as a prosecutor and, thus, should not be afforded absolute prosecutorial immunity. In Bogle v. Galanos, 503 So.2d 1217, 1218 (Ala.1987), our supreme court discussed the application of the doctrine of absolute immunity in a case in which a prosecutor had been sued. The court stated:

“ ‘The doctrine of absolute prosecu-torial immunity from civil damages suits under § 1983 for actions “intimately associated with the judicial phase of the criminal process” was expressly recognized in Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 994, 47 L.Ed.2d 128 (1976). The more difficult question arises in a situation where functions performed by a prosecutor “cast him in the role of an administrator or investigative officer rather than that of advocate,” id. at 430-431, 96 S.Ct. at 995. In such cases, a qualified good-faith immunity applies rather than the absolute immunity associated with the judicial process. [Citations omitted.]
“ ‘In Imbler, absolute prosecutorial immunity was extended to allegations that a prosecutor knowingly used false testimony and suppressed material evidence at trial. 424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33. In Henzel v. Gerstein, 608 F.2d 654, 657 (5th Cir.1979), this Court held that allegations of filing an information without an investigation, filing charges without jurisdiction, filing a baseless detainer, offering perjured testimony, suppressing exculpatory evidence, refusing to investigate complaints about the prison and threatening defendant with further criminal prosecution were within the absolute immunity recognized in Imbler, and could not be the basis for recovery under § 1983.’
“Fullman v. Graddick, 739 F.2d 553, 558-59 (11th Cir.1984).
“The conclusory allegations of the complaint fall within the absolute immunity described in Fullman. Ordinarily these allegations might satisfy the rules of notice pleading and survive a motion to dismiss, but they are insufficient here. Where immunity is involved, the complaining party must specifically allege facts to show how the acts of the defendant are beyond the scope of the immunity. Absolute immunity would not be absolute if it did not support a motion to dismiss. To hold otherwise would subject the prosecutor to numerous vexatious summary judgment proceedings and would undercut the very foundation of the rule.
“In the words of Judge Learned Hand, who wrote of the prosecutor’s immunity from actions for malicious prosecution:
“ ‘As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.’
“Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950).
“To resolve the issues raised in regard to Bogle’s claims alleging causes of action under state law, we need not address common law immunity, because it is sufficient to say that the immunity under state law in this case is at least as broad as immunity under a § 1983 action.”

Bogle v. Galanos, 503 So.2d at 1218-19.

In this case, just as the plaintiff did in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), Walker sued Tillman alleging that she knowingly used false testimony to obtain his conviction. Clearly, Tillman is afforded the protection of absolute immunity, as recognized in Im-bler; thus Walker’s § 1983 claim, asserting deprivation of his rights under the federal constitution, must fail. As to Walker’s state-law claim, we rely on Bogle, supra, in which our supreme court held that immunity under state law in a case dealing with prosecutorial immunity is “at least as broad as immunity under a § 1983 action.” Bogle, 503 So.2d at 1219. Accordingly, the trial court correctly dismissed Walker’s civil action on the basis of prosecutorial immunity.

Because we find that Tillman was entitled to absolute immunity in this case, we pretermit discussion of Walker’s assertion that the trial court erred in granting the motion to dismiss without making specific findings of fact as to whether Walker “may possibly prevail.”

For the reasons set forth above, the judgment of the trial court is affirmed.

AFFIRMED.

All the judges concur.

      . The Alabama Court of Criminal Appeals affirmed Walker's convictions, without an opinion. Walker v. State (No. CR-08-1521, Jan. 29, 2010),- So.3d -(Ala.Crim.App.2010) (table).

      . Although Walker does not explicitly assert a claim under 42 U.S.C. § 1983 in his complaint, wé note that § 1983 provides a civil action for the deprivation of rights secured by the United States Constitution.


author: BOLIN, Justice.

text:
    Ex parte Earnest Lee WALKER, Sr. (In re Earnest Lee Walker, Sr. v. Deborah Tillman).
    1091406.
    Supreme Court of Alabama.
    Aug. 6, 2010.
    Earnest Lee Walker, Sr., pro se.
    Submitted on petitioner’s brief only.
   BOLIN, Justice.

The petition for the writ of certiorari is denied.

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

WRIT DENIED.

COBB, C.J., and LYONS, STUART, and MURDOCK, JJ., concur.


author: MOORE, Judge.

text:
    Dr. Stephen FRANKS, as president of Central Alabama Community College v. Andrew JORDAN.
    2080520.
    Court of Civil Appeals of Alabama.
    July 2, 2010.
    Certiorari Denied Aug. 6, 2010 Alabama Supreme Court 1091419.

      William D. Jones III and W. Lee Ele-bash of Johnston Barton Proctor & Rose LLP, Birmingham, for appellant.
    Sabrina L. Comer and Susan E. Kennedy of Slate Kennedy LLC, Montgomery; and Frederick L. Fohrell and Robert C. Lockwood of Wilmer & Lee, P.A., Huntsville, for appellee.
   On Second Application for Rehearing

MOORE, Judge.

This court’s opinion issued on April 2, 2010, is withdrawn, and the following is substituted therefor.

Dr. Stephen Franks, as president of Central Alabama Community College, appeals from a judgment of the Montgomery Circuit Court granting Andrew Jordan’s petition for a common-law writ of certiora-ri to the administrative law judge (“the ALJ”) in a proceeding brought pursuant to the Fair Dismissal Act, § 36-26-100 et seq., Ala.Code 1975 (“the FDA”). We reverse the judgment.

Facts and Procedural History

In August 2002, Trenholm State Technical College hired Jordan as its “Interim Director of Accounting.” Jordan voluntarily resigned from that position in August 2003, and, in September 2003, Jordan began working for Snead State Community College as the temporary director of financial services. Jordan worked at Snead State for one year until his temporary position expired. In August 2004, Central Alabama Community College offered Jordan a temporary position as its business manager until the position could be advertised. Central Alabama subsequently extended Jordan’s appointment three times, until notifying Jordan on June 27, 2007, that his temporary employment would terminate on August 15, 2007. At that time, Jordan had spent over four years in the postsecondary school system. Jordan appealed the decision to terminate his employment to the Chief Administrative Law Judge of the Office of Administrative Hearings in the Division of Administrative Law Judges of the Office of the Attorney General. See § 36-26-115, Ala. Code 1975.

The ALJ assigned to hear Jordan’s appeal ordered the parties to file briefs regarding whether Central Alabama had complied with the due-process requirements of the FDA. On January 9, 2008, the ALJ dismissed Jordan’s appeal, essentially concluding that Jordan had not reached nonprobationary status at the time Central Alabama terminated his employment and, thus, that he was not entitled to the notice and hearing protections afforded to nonprobationary employees in the FDA. On January 29, 2008, Jordan filed a “motion to reconsider”; the ALJ denied that motion on the basis of lack of jurisdiction on January 30, 2008. On February 8, 2008, Jordan filed a petition for a common-law writ of certiorari in the Montgomery Circuit Court.

On January 29, 2009, the circuit court issued a writ of certiorari to the ALJ, stating that the ALJ had erred in holding that Jordan was not a nonprobationary employee at the time his employment was terminated. Specifically, the circuit court concluded that the FDA generally requires an employee to attain three years of service and that employment with various two-year educational institutions may be aggregated to meet that requirement. The circuit court found that Jordan had achieved nonprobationary status when considering his employment periods at Tren-holm State and Snead State along with his employment period at Central Alabama. The circuit court granted the writ of cer-tiorari, ordered the ALJ to rescind the termination of Jordan’s employment, and awarded Jordan backpay “without regard to any mitigation on [Jordan’s] part.” On March 3, 2009, Franks filed a notice of appeal to this court.

Standard of Review

“In South Alabama Skills Training Consortium v. Ford, 997 So.2d 309, 324 (Ala.Civ.App.2008), this court held that a party aggrieved by an ALJ’s determination as to whether someone is an employee covered by the FDA may seek review of that determination by way of a petition for a common-law writ of certiorari filed in the circuit court.

“‘The circuit court’s standard of review of a petition for a common-law writ of certiorari is well settled. On common-law certiorari review, the circuit court’s “scope of review was limited to determining if the [ALJ’s] decision ... was supported by legal evidence and if the law had been correctly applied to the facts.” Evans v. City of Huntsville, 580 So.2d 1323, 1325 (Ala.1991). “In addition, the court was responsible for reviewing the record to ensure that the fundamental rights of the parties, including the right to due process, had not been violated.” Id. “Questions of fact or weight or sufficiency of the evidence will not be reviewed on cer-tiorari.” Personnel Bd. of Jefferson County v. Bailey, 475 So.2d 863, 868 (Ala.Civ.App.1985).
“ ““ “[A] common-law writ of cer-tiorari extends only to questions touching the jurisdiction of the subordinate tribunal and the legality of its proceedings. The appropriate office of the writ is to correct errors of law apparent on the face of the record. Conclusions of fact cannot be reviewed, unless specially authorized by statute. The trial is not de novo but on the record; and the only matter to be determined is the quashing or the affirmation of the proceedings brought up for review.” ’ ”
“ ‘G.W. v. Dale County Dep’t of Human Res., 939 So.2d 931, 934 n. 4 (Ala.Civ.App.2006) (quoting City of Birmingham v. Southern Bell Tel. & Tel. Co., 203 Ala. 251, 252, 82 So. 519, 520 (1919), quoting in turn Postal Tel. Co. v. Minderhout, 195 Ala. 420, 71 So. 91 (1916)). “This court’s scope of appellate review is the same as that of the circuit court.” Colbert County Bd. of Educ. v. Johnson, 652 So.2d 274, 276 (Ala.Civ.App.1994).’ ”
“Ford, 997 So.2d at 324.”

Holland v. Pearson, 20 So.3d 120, 122 (Ala.Civ.App.2008).

Discussion

Franks primarily argues on appeal that an employee covered by the FDA can only reach “nonprobationary” status after three years of employment with the same two-year educational institution. Based on that argument, Franks maintains that, because Jordan did not satisfy the requisite three-year employment period while employed by Central Alabama, he did not attain “nonprobationary” status. Jordan, on the other hand, asserts that the three-year probationary period commences on the date of the initial employment of a covered employee by any two-year educational institution. As a result, Jordan asserts, he should be considered a nonpro-bationary employee because he has been employed by various two-year colleges for over three years.

The FDA establishes a comprehensive statutory scheme governing the termination of the employment of nonteachers employed by two-year educational institutions by setting out the substantive rights of such employees and the procedures to be followed to protect those rights. See Act. No. 83-644, Ala. Acts 1983. In general, the FDA categorizes covered employees into two groups — probationary employees and nonprobationary employees. See § 36-26-101, Ala.Code 1975. The employment of a probationary employee may be terminated at any time during his or her probationary period by written notice delivered to the employee at least 15 days before the effective termination date. § 36-26-101(c), Ala.Code 1975. On the other hand, the employment of nonproba-tionary employees may be terminated only for “good and just causes.” § 36-26-102, Ala.Code 1975. Furthermore, the employment of nonprobationary employees may be terminated only according to the procedures provided in §§ 36-26-103 and 36-26-104, Ala.Code 1975, which require, among other things, written notice of the reasons for the proposed termination and the facts supporting those reasons, the opportunity to confer with the employing authority before the actual termination, written notice of the termination, the right to contest the termination in a de novo hearing before a hearing officer, and the right to appeal any adverse decision of the hearing officer to this court.

The determination whether an employee should be classified as a probationary employee or a nonprobationary employee depends entirely on the language of the FDA. The FDA specifically provides:

“All employees as defined in Section 36-26-100[, Ala.Code 1975,] shall be deemed employed on a probationary status for a period not to exceed three years from the date of his or her initial employment, or a lesser period which may be fixed by the employing authority.”

§ 36-26-101(a), Ala.Code 1975. It also provides that

“[u]pon the completing by the employee of said probationary period, said employee shall be deemed employed on a nonprobationary status.... ”

§ 36-26-102, Ala.Code 1975. The plain language of the foregoing provisions indicates that employees covered by the FDA remain in a probationary status for three years from the date of their initial employment, unless the employing authority fixes a shorter period, at which point the employee attains nonprobationary status. See IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992) (holding that, in construing a statute, “where plain language is used a court is bound to interpret that language to mean exactly what it says”).

The legislature did not define the term “employing authority,” but the context in which that term is used in the FDA reveals its meaning. See Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 517 (Ala.2003) (“statutory language depends on context”). Section 36-26-100 defines “employees” covered by the FDA as

“all persons employed by county and city boards of education, two-year educational institutions under the control and auspices of the State Board of Education, the Alabama Institute for Deaf and Blind, including production workers at the Alabama Industries for the Blind, and educational and correctional institutions under the control and auspices of the Alabama Department of Youth Services, who are so employed by any of these employers as bus drivers, lunchroom or cafeteria workers, maids and janitors, custodians, maintenance personnel, secretaries and clerical assistants, full-time instructors as defined by the State Board of Education, supervisors, and all other persons not otherwise certified by the State Board of Education.”

(Emphasis added.) Section 36-26-101(b), Ala.Code 1975, provides that, “[d]uring said probationary period, the employing authority shall cause the employee’s performance to be evaluated.” Section 36-26-101(c) provides:

“At any time during the employee’s probationary period, the employing authority may remove an employee by furnishing said employee written notification at least 15 days prior to the effective day of termination.”

The legislature evidently intended the term “employing authority” as a shorthand reference to those entities designated in § 36-26-100, which entities are given the duty to evaluate the performance of employees during the probationary period, the authority to reduce the probationary period, and the right to terminate summarily the employment of probationary employees as outlined in § 36-26-101(c).

Jordan maintains that, because the State Board of Education reserves the right of control over the employees of all the two-year colleges, under the common-law definition of “employer,” see Ware v. Timmons, 954 So.2d 545, 550 (Ala.2006), the State Board of Education should be considered those employees’ “employing authority.” That argument completely overlooks the fact that the legislature did not designate the State Board of Education as an entity covered by the FDA in § 36-26-100. In § 36-26-100, the legislature recognized that the two-year colleges operate “under the control and auspices of the State Board of Education,” but it specifically established that only those employees “employed by ... [the] two-year educational institutions” would be covered by the FDA. The legislature has declared that, despite the right of control exercised by the State Board of Education over the two-year colleges, persons working for the two-year colleges are to be considered employees of the two-year colleges for the purposes of the FDA.

In Holland v. Pearson, swpra, this court recognized that the employees of the Department of Postsecondary Education do not qualify for the protection of the FDA because the legislature did not list the Department in § 36-26-100. 20 So.3d at 124. The holding in Holland indicates that, unless a particular entity is listed in § 36-26-100, its employees will not be covered by the FDA. Applying that reasoning to this case, if Jordan’s argument is correct, then he would be an employee of the State Board of Education, an entity not listed in § 36-26-100. Hence, Jordan would have no substantive or procedural employment rights under the FDA. The legislature plainly did not intend such an outcome.

Because the legislature rejected the notion that employees of two-year educational institutions should be treated as being employed by a single entity, the State Board of Education, it follows that the legislature intended that each separate two-year educational institution would be considered an “employing authority” for the purposes of the FDA. As such, each two-year college has the duty to evaluate its employees during the probationary period, the power to lessen the probationary period, and the right to terminate the employment of probationary employees at will with sufficient notice. Those statutory rights and obligations would be defeated by a construction of the FDA allowing employees to aggregate periods of employment from stints at other two-year colleges.

For example, if an employee had achieved nonprobationary status at the first two-year college for which he or she worked, that employee automatically would become a nonprobationary employee upon being hired by a subsequent two-year college, although that subsequent college had never been given the opportunity to determine whether the employee merited nonprobationary status. That employee instantly would attain substantive and procedural employment rights preventing his or her new employing authority from terminating his or her employment at will. In cases in which an employee previously has worked two years for one two-year educational institution, that employee subsequently would attain nonprobationary status within a year of his or her initial date of employment with another two-year educational institution, automatically lessening the probationary period and thereby divesting the new employing authority of its right to a three-year evaluation period. We must presume that, in enacting the FDA, the legislature intended each part of the act to have effect, and we must avoid a construction that renders any part of it ineffective. Ex parte D.B., 975 So.2d 940, 954 (Ala.2007) (“ ‘ “ ‘A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error.’ ” ’ Ex parte Wilson, 854 So.2d 1106, 1110 (Ala.2002) (quoting Ex parte Welch, 519 So.2d 517, 519 (Ala.1987), quoting in turn 2A Norman J. Singer, Sutherland Statutes and Statutory Construction § 46.06 (4th ed. 1984)).”).

The reading advocated by Jordan, and accepted by the circuit court, requiring employment periods from employment with any employing authority to be considered when determining nonprobationary status, would also entitle employees of employing authorities other than two-year educational institutions to aggregate their employment periods. For example, persons formerly employed by the educational and correctional institutions under the control and auspices of the Alabama Department of Youth Services who find subsequent employment at a two-year educational institution would be allowed to tack on their prior employment experience to attain nonprobationary status in a wholly different employment area. We cannot presume that the legislature envisioned such a result. See City of Bessemer v. McClain, 957 So.2d 1061, 1073 (Ala.2006) (holding that construction of statute that leads to results that are inconsistent with purposes of statute should be avoided).

We acknowledge that the FDA is hardly a model of legislative clarity, Bolton v. Board of School Commissioners of Mobile County, 514 So.2d 820, 824 (Ala.1987); however, the vagaries within the FDA do not authorize the courts to interpret the law so as to reach an illogical or unreasonable result. Woodham v. Alabama Aviation & Tech. Coll, 537 So.2d 934, 936 (Ala.Civ.App.1988). We must presume the legislature intended a rational result. John Deere Co. v. Gamble, 523 So.2d 95, 100 (Ala.1988). It is apparent to this court that the legislature intended that an employing authority granted statutory rights should be allowed to exercise those rights as to each and every one of its employees, not just those with no prior experience in covered employment. To preserve those rights, and to promote that legislative intent, we construe the FDA to provide that, when a covered employee leaves the employment of an employing authority, the employee, upon his or her subsequently being hired by a different employing authority, commences a new probationary period without reference to the periods of his or her prior employment.

Applying the law to this case, once Jordan began his employment at Central Alabama, a two-year educational institution under the control and auspices of the State Board of Education, a new probationary period commenced. Because the parties agree that Jordan did not reach three years of employment with Central Alabama before the termination of his employment, and because the record contains no evidence indicating that Central Alabama shortened the probationary period, Jordan did not reach nonprobationary status before the date of the termination of his employment, notwithstanding his tenure of employment with Trenholm State and Snead State. As a probationary employee, under § 36-26-101(c) Jordan could be dismissed at the will of Central Alabama upon 15 days’ written notice. Central Alabama fully complied with its statutory obligations to Jordan, leaving Jordan with no statutory right to further procedures to contest the termination of his employment.

Section 36-26-115, Ala.Code 1975, provides, in pertinent part:

“An employee who has attained non-probationary status and has been denied a hearing ... as required ... shall have the right to appeal directly to the Chief Administrative Law Judge of the Office of Administrative Hearings, Division of Administrative Law Judges, Office of the Attorney General for relief.”

Jordan attempted to avail himself of that procedure after Central Alabama denied him a hearing regarding the termination of his employment. However, as the plain language of the statute says, the right to appeal found in § 36-26-115 belongs only to nonprobationary employees. The ALJ correctly determined that Jordan did not attain nonprobationary status while employed by Central Alabama and, therefore, properly dismissed Jordan’s appeal. The circuit court erred in granting the writ of certiorari overturning the decision of the ALJ. Therefore, we reverse the judgment of the circuit court and remand the case with instructions for the circuit court to vacate its judgment and to reinstate the order of the ALJ dismissing Jordan’s appeal. Based on our holding, we pretermit any discussion of any other issues raised by Franks.

SECOND APPLICATION OVERRULED; OPINION OF APRIL 2, 2010, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . On April 2, 2010, on application for rehearing, this court withdrew its opinion issued on original submission on November 25, 2009, and substituted a new opinion.

      . As an exception to the rule, this court held in Gainous v. Tibbets, 672 So.2d 800 (Ala.Civ.App.1995), that the State Board of Education may, by express resolution, extend FDA coverage to employees of the Department of Postsecondary Education who are under the direct supervision of the chancellor of that department and that the chancellor will then be considered “the employing authority” for purposes of the FDA. Absent such an express resolution, however, the general rule pertains. Thus, in this case, Jordan does not fall within the Gainous exception.