author: MYERS, P.J.,

text:
    Johnny McCULLOUGH, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01645-COA.
    Court of Appeals of Mississippi.
    Nov. 23, 2010.

      Greg E. Beard, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. Johnny McCullough was convicted of two counts of gratification of lust for the touching of “Jane,” his step-granddaughter. The jury acquitted McCullough of five other counts alleging that he had touched two of his natural granddaughters. The Union County Circuit Court sentenced McCullough to fifteen years’ imprisonment for each count, with the sentences to run concurrently. McCullough now appeals, arguing that the jury’s verdict is against the overwhelming weight of the evidence and that he received constitutionally ineffective assistance of counsel at trial.

FACTS

¶ 2. McCullough was born on December 6, 1945, and he was sixty-three years of age at the time of trial. McCullough, his wife, and his two sons and their families lived in three homes on the same sixty-nine-acre tract in Union County, Mississippi. McCullough’s sons, Billy and Jamie, each had several children from multiple marriages. McCullough and his sons were truck drivers, though Billy and Jamie apparently worked other jobs at times. McCullough was a Baptist minister and had preached at a local church from 1981 to about 1998, when McCullough began preaching on a local radio station. At times, McCullough and his wife would care for their grandchildren and step-grandchildren.

¶ 3. Jane was Jamie’s stepdaughter, a child of his ex-wife, Billie Jean. Jane was sixteen years of age at the time of trial. Jamie had raised Jane since she was two or three years old, and after Billie Jean and Jamie were divorced in late 2006, Jamie kept custody of Jane and his three children by Billie Jean. In July 2007, Jamie married Cynthia “Cindy” Chandler, but by some time that year, they had separated. Though they apparently reconciled at times, Jamie and Cindy were later divorced, and shortly thereafter Jamie married Paula, his brother Billy’s ex-wife.

¶ 4. The allegations against McCullough came to light after McCullough took “Ashley,” Cindy’s daughter (Jamie’s stepdaughter) on a trucking haul to Miami, Florida, in May 2008. The trip was to take two or three days. Some time during the trip, Ashley called Cindy and told her that McCullough had touched her breasts, undone her pants, and licked her vagina. She stated that this had happened in the cabin of the truck at a Walmart parking lot. McCullough had said it was a game and had warned her not to tell anyone. Ashley and Cindy spoke with Jamie, and the parents agreed that Ashley would have to finish out the trip, as Ashley didn’t know exactly where she was and they had no safe way to get her away from McCullough. They instructed Ashley to resist any further advances by bundling up in a sheet. Cindy testified that she frequently called Ashley and McCullough during the remainder of the trip but was careful not to let McCullough know that she was aware he had touched her daughter.

¶ 5. While Ashley was still on the road with McCullough, she told her mother that she had spoken to “Brittany,” one of her stepsisters, on the phone, and Brittany had told her that McCullough had touched her as well. Brittany was Jamie’s and Billie Jean’s daughter. She was a year younger than Ashley, and the two were close friends. At the time, Brittany was staying at McCullough’s home. She told Ashley and Cindy that McCullough began touching her in late 2007, when Cindy and Jamie had separated. Cindy and Jamie also spoke to Jane, who reported that McCullough had touched her while purporting to pray for her. Jane stated that McCullough would touch her breasts and vagina and rub them with what he called “praying oil.” She stated that this had been going on since she was about nine years of age; Jane was fifteen when she reported the abuse in May 2008.

¶ 6. “Courtney,” Billy and Paula’s daughter, also accused McCullough of touching her while purporting to pray for her. She stated that McCullough had started fondling her breasts when she was twelve or thirteen years of age. At trial, Courtney was only able to remember one instance where McCullough had touched her vagina, while she accompanied him on a trucking trip to North Carolina in the summer of 2007.

¶ 7. Jane, Ashley, Brittany, and Courtney were interviewed on July 22, 2008, by Angie Floyd, a social worker and forensic interview specialist at the Family Resource Center in Tupelo. Each of the girls disclosed the abuse in an account substantially similar to her testimony at trial. Floyd determined that each of the children’s accounts were consistent with victims of child sexual abuse, and she found no evidence of coaching. Floyd also interviewed “Debra” and “Ellen,” who did not disclose any abuse. Debra, who was eight years of age at the time of the interview, is Jamie and Billie Jean’s youngest child. Ellen, Billy and Paula’s oldest daughter, was sixteen at the time of the interview. She had been living with McCullough and his wife since her parents’ divorce, but she denied that McCullough had touched her. Video recordings of the interviews were introduced into evidence at the trial.

¶ 8. The theory of McCullough’s defense was that Billie Jean and Cindy, his son Jamie’s ex-wives, had put the children up to accusing McCullough to punish Jamie for adultery and to get Billie Jean custody of her children. McCullough also brought out testimony suggesting that the children were angry with Jamie for keeping a strict household and for marrying Paula, his brother’s ex-wife.

¶ 9. McCullough testified in his own defense. He denied touching any of the girls, and he averred that he had never taken any child with him while driving his truck. He stated that carrying passengers was against company policy and that he would have been fired if he had carried a child with him on long trips. McCullough admitted that he sometimes prayed for the children, but he averred that his wife had always been present. He testified that while praying, he would touch them on the head only. McCullough’s wife and his son, Jamie, gave supporting testimony.

¶ 10. McCullough was tried on seven counts of gratification of lust. He was acquitted of five counts relating to the fondling of Brittany and Courtney and convicted of two counts for touching Jane. This appeal followed.

DISCUSSION

1. Weight of the Evidence; Inconsistent Verdicts

¶ 11. McCullough argues that the jury’s verdict is against the overwhelming weight of the evidence.

¶ 12. “The jury is charged with the responsibility of weighing and considering conflicting evidence, evaluating the credibility of witnesses, and determining whose testimony should be believed.” Smith v. State, 8 So.3d 815, 818 (¶ 13) (Miss.Ct.App.2009) (quoting Ford v. State, 737 So.2d 424, 425 (¶ 8) (Miss.Ct.App.1999)). The Mississippi Supreme Court has discussed appellate review of the weight of the evidence supporting a jury’s verdict, stating:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.... However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather ... [the reviewing] court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (internal citations and quotations omitted). The court has cautioned that a challenge to the weight of the evidence “is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)).

¶ 13. On appeal, McCullough makes two distinct arguments under this issue. The first is largely a rehashing of the theory of his defense at trial: that Jane was induced to falsely accuse him by Cindy and Billie Jean. McCullough offers nothing new; he simply points out that there was conflicting testimony as to whether he committed the alleged acts. This is insufficient, as “[t]he jury is the sole judge of the weight of the evidence and the credibility of the witnesses.” Nix v. State, 8 So.3d 141, 146 (¶ 26) (Miss.2009) (quoting Mohr v. State, 584 So.2d 426, 431 (Miss.1991)).

¶ 14. In his second argument, McCullough appears to urge that the jury’s verdicts were inconsistent. We do not agree. Each of the girls testified to separate events, and each was subjected to thorough cross-examination regarding her particular allegations. The State’s theory may very well have been that each victim was telling the truth, but it would not be inconsistent for the jury to find Jane’s testimony credible while it harbored reasonable doubts as to whether the State had proved every element of the offense regarding Brittany’s and Courtney’s allegations. As the supreme court stated in Groseclose v. State, 440 So.2d 297, 300 (Miss.1983):

Jurors are permitted, indeed have the duty, to resolve the conflicts in the testimony they hear. They may believe or disbelieve, accept or reject the utterances of any witness. No formula dictates the manner in which jurors resolve conflicting testimony into finding of fact sufficient to support their verdict. That resolution results from the jurors hearing and observing the witnesses as they testify, augmented by the composite reasoning of twelve individuals sworn to return a true verdict. A reviewing court cannot and need not determine with exactitude which witness or what testimony the jury believed or disbelieved in arriving at its verdict. It is enough that the conflicting evidence presented a factual dispute for jury resolution.

¶ 15. Even if we were to find the verdicts inconsistent, which we do not, we note that “inconsistent or even contradictory verdicts are not, in and of themselves, reasons to overturn a criminal conviction.” Dubose v. State, 22 So.3d 340, 352 (¶ 38) (Miss.Ct.App.2009). All that is required to support an inconsistent or contradictory verdict is that the evidence was sufficient to support the counts on which a conviction was returned. Id. That is beyond dispute in this case.

¶ 16. After a thorough review of the record, we are satisfied that the jury’s verdicts are not against the overwhelming weight of the evidence. This issue is without merit.

2. Ineffective Assistance of Counsel

¶ 17. In his final issue, McCullough argues that he received constitutionally ineffective assistance of counsel at trial. He cites only a single instance of allegedly ineffective conduct: McCullough alleges that his attorney possessed an audio recording of Brittany stating, at Jamie’s urging, that Cindy had “forced” her and the other girls to accuse McCullough. McCullough alleges that his attorney was ineffective for failing to use this recording at trial.

¶ 18. McCullough placed a compact disc containing this recording in his record excerpts, and he attached an affidavit executed by Jamie that describes the circumstances of the recording and its use at trial. But McCullough admits that neither the recording nor the affidavit are actually part of the record on appeal. This Court is limited to the trial court record in our review of the claim. Jackson v. State, 42 So.3d 613, 615 (¶ 8) (Miss.Ct.App.2010). Of course, McCullough cannot make them part of the record by simply attaching copies to his briefs filed with this Court. Our supreme court had stated that “we must decide each case by the facts shown in the record, not assertions in the brief, however sincere counsel may be in those assertions. Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them.” Mason v. State, 440 So.2d 318, 319 (Miss.1983).

¶ 19. Mississippi Rule of Appellate Procedure 22(b) states:

Issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record. Where the appellant is represented by counsel who did not represent the appellant at trial, the failure to raise such issues on direct appeal shall constitute a waiver barring consideration of the issues in post-conviction proceedings.

“Where the record is insufficient to support a claim of ineffective assistance, the appropriate conclusion is to deny relief, preserving the defendant’s right to argue the same issue through a petition for post-conviction relief.” Wynn v. State, 964 So.2d 1196, 1200 (¶ 9) (Miss.Ct.App.2007) (internal quotations omitted). We cannot address this ineffective assistance claim on direct appeal. McCullough can raise it in a motion for post-conviction relief, if he chooses to do so. We therefore deny relief on this issue without prejudice.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF UNION COUNTY OF CONVICTION OF COUNT IV, GRATIFICATION OF LUST, AND SENTENCE OF FIFTEEN YEARS; AND COUNT V, GRATIFICATION OF LUST, AND SENTENCE OF FIFTEEN YEARS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE SENTENCES TO RUN CONCURRENTLY, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . We will use fictitious names throughout this opinion to protect the identity of minor victims of sexual abuse.

      . Jamie actually testified his divorce from Billie Jean was in December 2007, but this date is inconsistent with his testimony and others. It appears to have been a mistake.

      . In his testimony at trial, Jamie denied that this conversation had occurred. He testified instead that his father had never taken any children on trips like the ones described.

      .This ultimately led to an amendment of the indictment to conform to the proof offered at trial, as the original indictments had specifically alleged vaginal contact in Mississippi.


source: Caselaw Access Project

author: PARKER, Justice. MURDOCK, Justice

license: Public Domain

text:
    Charles A. WOOD, M.D., et al. v. Ann WAYMAN, surviving spouse of Charles R. Wayman, deceased.
    1070232.
    Supreme Court of Alabama.
    May 7, 2010.

      Michael K. Wright and Jackie H. Trimm of Starnes & Atchison LLP, Birmingham, for appellants Charles Wood, M.D., and Ozark Internal Medicine and Pediatrics, P.C., for appellants.
    E. Hamilton Wilson, Jr., of Ball, Ball, Matthews & Novak, PA, Montgomery, for appellant David Claassen, M.D.
    David Randolph Smith of Law Offices of David Randolph Smith & Edmund J. Schmidt III, Nashville, Tennessee; and William C. Maddox, Dothan, for appellee.
   PARKER, Justice.

Pursuant to Rule 5, Ala. R.App. P., this Court granted a petition for permission to appeal filed by Charles A. Wood, M.D., Ozark Internal Medicine and Pediatrics, P.C. (“Ozark”), and David Claassen, M.D. (hereinafter referred to collectively as “the physicians”), the defendants in a medical-malpractice wrongful-death action filed by Ann Wayman (“Wayman”), the surviving spouse of Charles R. Wayman, deceased, whom Charles named as his personal representative in his will. The petition asks us to review the order of the trial court holding that when a person dies testate and the person named as personal representative in the will files a wrongful-death action within the statutory limitations period, but is not formally appointed as personal representative until after the statutory limitations period has run, “the appointment relates back to the death or [the] date of filing the suit and the suit is not barred by the Statute of Limitations.” Trial court’s order of October 12, 2007.

The specific question before this Court is stated in the order of the trial court certifying for permissive appeal its interlocutory order denying the physicians’ motion to dismiss or, in the alternative, for a summary judgment, as follows:

“The controlling question of law is whether [Wayman’s] appointment as personal representative of the estate of Charles Wayman, accomplished after the statute of limitations for a wrongful death medical malpractice claim expired, can relate back to the filing of this lawsuit pursuant to Alabama Code § 43-2-831 and Ogle v. Gordon, 706 So.2d 707 (Ala.1997), or whether the Wrongful Death Statute and Downtown Nursing Home, Inc. v. Pool, 375 So.2d 465 (Ala.1979), dictate reversal.”

Background

Charles Wayman died on December 30, 2004, while under the care of the physicians. He left a will in which he named Wayman as his personal representative.

On December 27, 2006, Wayman filed a wrongful-death action in the Dale Circuit Court alleging that Charles’s death had resulted from complications of an undiagnosed case of Rocky Mountain spotted fever. On January 19, 2007, Dr. Wood and Ozark moved the trial court to dismiss the action on the basis that the complaint failed to state a claim on which relief could be granted. Dr. Claassen filed an answer in which he denied liability and also moved the trial court to dismiss the action. Dr. Wood and Ozark also filed an answer after the trial court on April 24, 2007, denied their motion to dismiss.

The physicians sought discovery from Wayman on issues that included copies of her letters of appointment as personal representative of Charles’s estate. When the letters were not provided, the physicians requested the Dale Probate Court to advise them if such an estate existed. The probate court responded on August 17, 2007, stating that there was “no estate on a Charles R. Wayman.” On September 6, 2007, the physicians filed a motion to dismiss or, in the alternative, for a summary judgment.

In their motion, the physicians argued that under § 6-5-410, Ala.Code 1975, only a personal representative of the estate of a decedent may pursue a wrongful-death action. The ‘Wrongful Death Statute,” § 6-5-410, Ala.Code 1975, provides, in part:

“(a) A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama, and not elsewhere, for the wrongful act, omission, or negligence of any person, persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, provided the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death.
“(c) The damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions.
“(d) Such action must be commenced within two years from and after the death of the testator or intestate.”

The physicians argued that under the rule established in Downtown Nursing Home, Inc. v. Pool, 375 So.2d 465 (Ala.1979), no one but the personal representative can maintain a wrongful-death action and that any action by an administrator that occurred before a personal representative’s formal appointment is a nullity. Because the action is a nullity, they argue, the doctrine of relation back cannot apply when the statute of limitations has expired before the formal appointment because there is no action to which the appointment could relate back.

On September 27, 2007, Wayman moved the trial court to deny the physicians’ motions “by permitting an amendment [to the complaint] to substitute [Wayman] as personal representative of her deceased husband’s estate as party-plaintiff.” She presented letters testamentary issued by the Barbour Probate Court on September 27, 2007, as Exhibit A to her motion. She argued that under Ogle v. Gordon, 706 So.2d 707 (Ala.1997), and § 43-2-831, Ala. Code 1975, the amendment substituting Wayman as personal representative is proper and relates back to the filing date of the original complaint. Wayman argued that in Ogle this Court expressly overruled Strickland v. Mobile Towing & Wrecking Co., 293 Ala. 348, 303 So.2d 98 (1974), upon which, Wayman argues, Downtown Nursing Home relied, thereby effectively overruling Downtown Nursing Home. Strickland had held that the doctrine of relation back did not apply in a wrongful-death action because at the time the action was filed the plaintiff had not been appointed as personal representative and had no capacity to sue, rendering the wrongful-death action a nullity so that there was nothing to which the amendment substituting the personal representative to the complaint, filed after the statute of limitations had expired, could relate back.

On September 28, 2007, the physicians filed their response to Wayman’s motion. They argued that Wayman had misinterpreted the law when she argued that Downtown Nursing Home was no longer good law, because, they argued, the holding in Downtown Nursing Home has been confirmed in several opinions when the letters testamentary were issued after the statutory two-year period had run.

On October 12, 2007, the trial court denied the physicians’ motion to dismiss or, in the alternative, for a summary judgment and subsequently certified the question presented above in response to the physicians’ motion for the certification of the order for a permissive appeal.

Analysis

‘Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review. Carter v. City of Haleyville, 669 So.2d 812, 815 (Ala.1995). Here, in reviewing the denial of a summary judgment when the facts are undisputed, we review de novo the trial court’s interpretation of statutory language and our previous caselaw on a controlling question of law.”

Continental Nat’l Indem. Co. v. Fields, 926 So.2d 1033, 1035 (Ala.2005).

In its order denying the physicians’ motion to dismiss or, in the alternative, for a summary judgment, the trial court adopted Wayman’s argument, stating, in part:

“[WJhen a person dies after January 1, 1994, and the person named in the will as personal representative files a suit within 2 years or within the Statute of Limitations for wrongful death and the person named is formally appointed personal representative by the Probate Court after the Statute of Limitations has run, the appointment relates back to the death or [the] date of filing the suit and the suit is not barred by the Statute of Limitations. The filing of the suit in the name of the personal representative within the Statute of Limitations tolls the statute. Ogle v. Gordon, 706 So.2d 707 (Ala.1997). Section 43-2-831 Code of Alabama, 1975 (January 1, 1994).”

Section 43-2-831, Ala.Code 1975, provides:

“The duties and powers of a personal representative commence upon appointment. The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. Prior to appoint ment, a person named personal representative in a will may carry out written instructions of the decedent relating to the decedent’s body, funeral, and burial arrangements. A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative.”

(Emphasis added.) Thus, under § 43-2-831, a person named personal representative in a will may perform certain acts that are beneficial to the estate before his or her appointment by a probate court. The subsequent appointment of the person as the decedent’s personal representative will relate back to provide authority for such acts.

It has been held that a wrongful-death action is not filed for the benefit of the estate, because the personal representative who brings such an action does not represent the estate.

“[I]n the context of a wrongful-death action, a ‘personal representative’ acts ‘as agent by legislative appointment for the effectuation of a legislative policy of the prevention of homicides through the deterrent value of the infliction of punitive damages.’ Steele v. Steele, 623 So.2d 1140, 1141 (Ala.1993). See also Bonner v. Williams, 370 F.2d 301, 303-04 (5th Cir.1966) (‘The rights and duties of the personal representative [in an action under § 6-5-410] are limited, however, to maintenance of the suit, collection of the damages, and distribution of the proceeds to the statutory distribu-tees.’).”

Affinity Hosp., L.L.C. v. Williford, 21 So.3d 712, 716 (Ala.2009). Further,

“[t]he right of action which the statute gives is a new right, not derivative nor the right of succession to the person slain. It is not a right of property, and the personal representative in bringing and prosecuting the suit acts as an agent of legislative appointment for the effec-tuation of the public policy it declares— the prevention of homicides. Holt v. Stollenwerck, 174 Ala. 213, 56 So. 912 [ (1911) ]; White v. Ward, 157 Ala. 345, 47 So. 166, 18 L.R.A., N.S., 568 [ (1908) ]; Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882 [ (1921) ].”

Breed v. Atlanta, Birmingham & Coast R.R., 241 Ala. 640, 642-43, 4 So.2d 315, 317 (1941). Any damages awarded as the result of a wrongful-death action are not a part of the decedent’s estate, and the action, therefore, cannot benefit the estate. “[D]amages awarded pursuant to [§ 6-5-410, Ala.Code 1975,] are distributed according to the statute of distribution and are not part of the decedent’s estate. The damages from a wrongful death award pass as though the decedent had died without a will.” Steele v. Steele, 623 So.2d 1140, 1141 (Ala.1993).

Wayman directs our attention to the fact that this Court has also stated that the damages from a wrongful-death action do go to the estate. In reversing a trial court’s judgment that allowed argument implying that the damages in a wrongful-death action filed under the Homicide Act, Code 1940, Tit. 7, § 123 (now § 6-5-410, Ala.Code 1975), were compensatory rather than punitive, this Court stated:

“Indeed, the recovery does not go to the wife or the husband, but to the estate of the decedent as stated in South [&] North Alabama Railroad Co. v. Sullivan, supra, 59 Ala. [272,] 279 [(1887)]:
“ ‘To whom does the compensation go? Not to the husband, wife or child. The statute contains no provision that the recovery shall go to these. It shall be “distributed as personal property of an intestate is now distributed.” That is, it goes to the estate of the decedent, with the limitation, that the fund “shall not be subject to the payment of the debts of the deceased.” ’ ”

Hardin v. Sellers, 270 Ala. 156, 159, 117 So.2d 383, 385 (1960). We hold that the above statement in Hardin v. Sellers was dicta and that it does not accurately state the law.

Section 43-2-831, Ala.Code 1975, provides for the relation back of certain acts defined therein that are beneficial to the estate. Because an action brought under the wrongful-death statute is not brought on behalf of the estate, and because the estate gains no benefit from even.a successful wrongful-death action, the relation-back provision in § 43-2-831 does not apply to a wrongful-death action brought under § 6-5-410.

In Ogle, Ogle, the personal representative named in his wife’s will, filed a petition for letters testamentary and a wrongful-death action on the same day, September 30,1992, four months after his wife’s death on May 28,1992. The probate court failed to issue the letters of administration within the next 20 months, not issuing the letters until the two-year period contained in the wrongful-death statute had expired. The trial court entered a summary judgment for the defendant because Ogle was not a personal representative of his wife’s estate on the date he filed his wrongful-death action. In its discussion of the case, this Court said that the “probate court, through inadvertence, did not issue the letters of administration until January 19, 1995, the day after the plaintiff notified the court of its dereliction. That dereliction should not bar the plaintiffs action.” Ogle, 706 So.2d at 711.

The legal issue presented in Ogle was not one of relation back; rather, the “legal question presented [was] whether the failure of the probate court to issue letters of administration within the two-year period after the death requires the dismissal of a wrongful death action that was timely filed by the person later issued letters of administration.” Ogle, 706 So.2d at 707. This Court decided that, under the circumstances of that case, it did not.

In deciding Ogle, we recognized “that this Court has held that the wrongful death statute, which provides a two-year limitations period [at § 6-5-410(d)], is a statute of creation, otherwise known as a nonclaim bar to recovery, and that it is not subject to tolling provisions.” Ogle, 706 So.2d at 708 (emphasis added). We have held that the two-year limitations period within which a wrongful-death action must be brought is not a statute of limitations. “[T]he time provision within which a wrongful death [action must be brought] is of the essence of the action, and also, such limitation affects the liability itself, and not merely the remedy.” Nicholson v. Lock wood, Greene Eng’rs, Inc., 278 Ala. 497, 500, 179 So.2d 76, 79 (1965). “The statute requires suit brought within two years after death. This is not a statute of limitations, but of the essence of the cause of action, to be disclosed by averment and proof.” Parker v. Fies & Sons, 243 Ala. 348, 350, 10 So.2d 13, 15 (1942) (overruled on other grounds). Because the two-year period is not a statute of limitations but a period after which liability under the statute ceases to exist, it is not subject to tolling, contrary to the holding of the trial court.

As Wayman argues, Ogle partially overruled Strickland v. Mobile Towing & Wrecking Co., supra. The Strickland decision held that an action filed on March 11, 1968, was a nullity because the person who filed it did not receive his appointment as administrator until March 13, 1968, and the three-year statutory limitations period for filing the action had expired on March 12, 1968. Thus, the case construed federal statutes to hold that a wrongful-death action brought by anyone other than a decedent’s personal representative duly appointed by the probate court should be dismissed as a nullity. Because the originally filed action was a nullity, the appointment made after the expiration of the three-year limitations period of the statute had no action to which it could relate back. This Court noted that the statutory time limit for filing an action under the Jones Act, 46 U.S.C. § 688, constituted a condition precedent to bringing the action and stated that that construction was consistent with “our construction of the time limit under the Alabama wrongful death statute, Tit. 7, § 123, Code 1940 [now § 6-5-410, Ala. Code 1975].” Strickland, 293 Ala. at 350, 303 So.2d at 99. In overruling Strickland, this Court stated in Ogle:

“Our decision in Strickland ... came long before the Legislature’s codification of § 43-2-831. We, therefore, overrule Strickland’s holding regarding the application of the doctrine of relation back, insofar as it is inconsistent with what we hold today, but we note that Strickland correctly points out that under the doctrine of relation back one must have something to relate back to, and we note that in the present case the filing of the original petition is the event to which the appointment would relate back.”

Ogle, 706 So.2d at 710 (emphasis added). Ogle is not specific as to what it overruled in Strickland, saying only that “we overrule Strickland’s holding regarding the application of relation back, insofar as it is inconsistent with what we hold today.” Ogle overruled Strickland because § 43-2-831, Ala.Code 1975, which became effective after Strickland was decided, specifically provides for relation back under certain circumstances. As emphasized above, however, this Court did not overrule the holding that under the doctrine of relation back there must be something to relate back to. It then related Ogle’s appointment back to his filing of the petition for letters testamentary, which was the same date on which the action was filed.

To summarize, Ogle stated that the two-year limitations period in § 6-5-410 is not a statute of limitations and that it is not subject to tolling. Ogle acknowledged that relation back is permitted for personal representatives by virtue of § 43-2-831, but it allowed relation back in that wrongful-death case solely because of the “inadvertence” of the probate court, which caused the long delay after Ogle timely filed both his petition and his complaint within four months of the decedent’s death. Because there must be something to which the appointment as a personal representative may relate back, the Court related the appointment back to the filing of the petition for such appointment. Although Ogle’s appointment was permitted to relate back to the date he filed his petition for that appointment, nothing in Ogle supports Wayman’s argument that her appointment as personal representative of Charles’s estate relates back to the date of the filing of the wrongful-death action. This case is similar to Downtown Nursing Home, in which we held that the doctrine of relation back did not apply.

“In [.Downtown Nursing Home ], J.P. filed a complaint based on the death of E.P., who had died on November 24, 1976. After the two-year period had expired, J.P. sought to amend his complaint to substitute as the plaintiff B.J., who had been appointed administrator of E.P.’s estate on February 5, 1979, more than two years after E.P.’s death. This Court held that because there had been no one authorized to file the action before the expiration of the two years, the doctrine of relation-back had no application.”

Ellis v. Hilburn, 688 So.2d 236, 238 (Ala.1997).

Accordingly, the trial court erred when it denied the physicians’ motion to dismiss the case on the basis that the two-year period of § 6-5-410 was tolled by the filing of an action by a person who had no authority under that statute to file a wrongful-death action. Because we reverse the judgment of the trial court on the basis of this error, we need not reach the parties’ other arguments.

Conclusion

Because Wayman was not a personal representative appointed by the probate court when she filed the action or at the expiration of the statutory two-year period for filing a wrongful-death action, the trial court erred in denying the physicians’ motion to dismiss the action on the basis that Wayman’s appointment as personal representative, which became effective nine months after the expiration of the two-year limitations period, could not relate back to the date of Charles’s death or to the date of the filing of the wrongful-death action. Consequently, we reverse the judgment of the trial court and remand the case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

WOODALL, SMITH, and SHAW, JJ., concur in the result.

MURDOCK, J., dissents.

MURDOCK, Justice

(dissenting).

In Downtown Nursing Home, Inc. v. Pool, 375 So.2d 465 (Ala.1979), this Court relied upon Strickland v. Mobile Towing & Wrecking Co., 293 Ala. 348, 303 So.2d 98 (1974), in holding as follows:

“In Strickland v. Mobile Towing and Wrecking Co., 293 Ala. 348, 303 So.2d 98 (1974), a suit was brought under the Jones Act one day prior to the expiration of the three year limitation period. The person bringing the suit was not appointed administrator until two days after the limitation period had expired.
“In examining the Jones Act, 46 U.S.C.A. § 688, this Court found that the three year limitation period was a condition precedent to any right to bring an action. This is consistent with the construction that has been placed on the limitation period found in the Alabama 'wrongful death statute.
“This Court held that any action by the administrator occurring prior to his appointment was a nullity and therefore there was nothing to which an amendment could relate back.
“In the present case, Johnnie E. Parker [the decedent’s son] filed suit without having been appointed executor or administrator. Since he did not qualify under § 6-5-410[, Ala.Code 1975,] as a personal representative this suit was a nullity. Therefore, the doctrine of relation back, found in Rule 15(c), [Ala. R. Civ. P.], does not apply.”

375 So.2d at 466.

Subsequently, however, in Ogle v. Gordon, 706 So.2d 707 (Ala.1997), this Court overruled Strickland. In so doing, we recognized the age-old, “practically universal” rule that the issuance of letters testamentary relates back to the decedent’s “time of death ” and vindicates acts of the personal representative done in the interim:

“The doctrine of relation back with respect to the powers of a personal representative has been in existence for approximately 500 years, and this Court first recognized it in Blackwell v. Blackwell, 33 Ala. 57 (1858). See also, McAleer v. Cawthon, 215 Ala. 674, 112 So. 251 (1927), and Nance v. Gray, 143 Ala. 234, 38 So. 916 (1905). In McAleer v. Cawthon, this Court stated:
“ ‘[I]t is a rule of practically universal recognition that:
“ ‘ “When letters testamentary or of administration are issued, they relate back so as to vest the property in the representative as of the time of death and validate the acts of the representative done in the interim; but such validation or ratification applies only to acts which might properly have been done by a personal representative, and the estate ought not to be prejudiced by wrongful or injurious acts performed before one’s appointment.” 23 Corp. Jur. 1180, § 400.’
215 Ala. at 675-76, 112 So. at 251....
“In 1993, the Alabama Legislature codified this doctrine by adopting Act No. 93-722, § 2, Ala. Acts 1993, codified at § 43-2-831, Ala.Code 1975. That Act became effective on January 1, 1994. Section 43-2-831, provides:
“‘The duties and powers of a personal representative commence upon appointment. The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occumng prior to appointment the same effect as those occurring thereafter. Prior to appointment, a person named personal representative in a will may carry out written instructions of the decedent relating to the decedent’s body, funeral, and burial arrangements. A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative.’
“(Emphasis added.)
“The defendants cite Strickland v. Mobile Towing & Wrecking Co., 293 Ala. 348, 303 So.2d 98 (1974), a case construing federal statutes (and holding that the plaintiff who filed the wrongful death claim was not the personal representative at the time the action was filed), for the proposition that the doctrine of relation back does not apply in this case, on the basis that the appointment, coming beyond the two-year limitations period, gave the plaintiff no capacity to sue and was a nullity and that, therefore, there is nothing to relate back to. Our decision in Strickland, however, came long before the Legislature’s codification of § 43-2-831. We, therefore, overrule Strickland’s holding regarding the application of the doctrine of relation back, insofar as it is inconsistent with what we hold today ....

706 So.2d at 709-10.

In overruling Strickland, this Court removed the basis for its decision in Downtown Nursing Home. Clearly the opinion of this Court in Ogle applied the relation-back doctrine embodied in § 43-2-831, Ala.Code 1975 (the language of which Alabama adopted from the Uniform Probate Code), to a wrongful-death action.

Nevertheless, the Court went on to state in Ogle “that Strickland correctly points out that under the doctrine of relation back one must have something to relate back to, and we note that in the present case the filing of the original petition is the event to which the appointment would relate back.” 706 So.2d at 710. Thus, instead of making the event for relation-back purposes the decedent’s date of death consistent with the age-old rule (and the statutory text) upon which its decision rested, this Court ultimately made the event for relation-back purposes the date on which the “petition” for letters testamentary was filed. Perhaps it did so merely because in Ogle that date was one and the same as the date on which the wrongful-death action was filed. 706 So.2d at 708.

In any event, I cannot accept this Court’s failure to apply the well settled rule concerning the relation back of a personal representative’s authority to the date of the decedent’s death. In my opinion, we are failing to take proper account of § 43-2-831, Ala.Code 1975, and the judicial precedents it incorporates and that apply it, i.e., Ogle.

      . Dr. Claassen filed a separate motion to dismiss or, in the alternative, for a summary judgment on September 6, 2007, but on September 28, 2007, he moved the trial court to allow him to join in the motion of Dr. Wood and Ozark, adopting their arguments and authorities.

      . The physicians note that the basis for opening the estate in Barbour County is unknown, and they do not concede that the petition or Wayman’s appointment in that county as personal representative of Charles's estate is proper under Alabama law. Physicians’ brief, at 9 n. 2. We do not address that issue.

      3. Section 43-2-831, Ala.Code 1975, which sets forth the time of accrual of duties and powers of a personal representative, became effective on January 1, 1994.

      . Wayman cites 44 cases in support of her various positions, but, with the exception of those specifically addressed in this opinion, the cited cases are inapposite because they do not address a holding of an Alabama appellate court in an action filed under Alabama's wrongful-death statute; they contain mere mentions of estates that were established for the benefit of heirs using the proceeds of a wrongful-death action rather than the estate of the deceased; or, as in the case of Johnson v. Ralls, 286 Ala. 565, 243 So.2d 673 (1970), they were improperly brought under the wrongful-death statute.

      "1 J.B.G., Annotation, Relation Back of Letters Testamentary or of Administration, 26 A.L.R. 1359, 1360 (1923).”


author: WOODALL, Justice.

text:
    Ex parte Roy PRICE and Price Ceiling, Inc. (In re H.L. Bean v. Roy Price and Price Ceiling, Inc.).
    1090619.
    Supreme Court of Alabama.
    May 7, 2010.

      Lynn Hare Phillips of Hare, Clement & Duck, P.C., Birmingham, for petitioners.

      R. Graham Esdale of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for respondent.
   WOODALL, Justice.

Roy Price and Price Ceiling, Inc. (hereinafter referred to collectively as “Price”), petition this Court for a writ of mandamus directing the Montgomery Circuit Court to transfer the civil action H.L. Bean filed against Price and others to Chilton County. We deny the petition.

Bean was employed by Price in the construction industry from 1975 until October 2008, when Price terminated Bean’s employment. In his complaint, Bean alleges that, as part of his employment, Price “guaranteed [him] a sum certain of yearly compensation.” According to Bean, if he “did not reach this sum certain based on his hourly wage earnings, Price ... would make up the difference at year’s end.” In his complaint, Bean included a claim against Price asserting breach of his employment contract and seeking to recover lost wages for Price’s alleged “fail[ure] to compensate [him] for the work he had performed.”

Price filed a motion to transfer the case to Chilton County. Price argued that venue was improper in Montgomery County and that, therefore, the trial court had to transfer the case to Chilton County, an appropriate venue. See Rule 82(d)(1) and (3), Ala. R. Civ. P. Alternatively, Price argued that, should the court find that venue was proper in Montgomery County, it should nevertheless transfer the ease to Chilton County under the doctrine of forum non conveniens. See § 6-3-21.1(a), Ala.Code 1975.

Bean opposed the motion to transfer. He argued that venue in Montgomery County was proper under § 6-3-3, Ala. Code 1975, which states, in pertinent part: “In all actions for work and labor done or breaches of contracts ..., the action may be commenced in the county in which the work was done.... ” Aso, Bean denied that a transfer was required by the doctrine of forum non conveniens. In support of his arguments, Bean attached his own affidavit, stating that, during his employment by Price, he had “performed work and labor in various locations within the state of Aabama, a substantial amount of which was performed in Montgomery County.”

The trial court, by written order, denied Price’s motion to transfer. It found venue proper in Montgomery County under “the plain language of’ § 6-3-3. Further, the trial court found that the transfer of the case to Chilton County would not be “in the interest of justice,” as that phrase in § 6-3-21.1(a) has been construed. Price timely petitioned this Court for mandamus relief.

First, we must decide whether venue is appropriate in Montgomery County. “‘The burden of proving improper venue is on the party raising the issue, and on review of an order ... refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial court.’ ” Ex parte Harper, 934 So.2d 1045, 1048 (Ala.2006) (quoting Ex parte State Bd. for Registration of Architects, 574 So.2d 53, 54 (Ala.Civ.App.1990) (citations omitted)). “The burden of proof on factual issues in a venue dispute is upon the party or parties challenging venue in the forum.” Ex parte Wiginton, 743 So.2d 1071, 1074 (Ala.1999).

All “[a]ctions for work and labor may properly be commenced in the county where the work was done.” Rush v. Thomas Duckett Constr. Co., 380 So.2d 762, 764 (Ala.1980) (citing § 6-3-3, Ala. Code 1975). Consequently, “[p]roper venue in an action for work and labor will ... depend on a determination of where that work was done. The burden of proving improper venue is upon the party making such a claim.” Ex parte Adamson, 408 So.2d 151, 153 (Ala.Civ.App.1981).

Price argues that venue in Montgomery County is not proper under § 6-3-3, because, according to Price, Bean’s complaint “does not state a claim for work and labor done.” Petition, at 11 (emphasis in original). In other words, according to Price, “[t]here is no allegation in [Bean’s] complaint that he has not been paid for work already performed.” Petition, at 11. However, Price mischaracterizes the nature of the complaint, because, as Bean argues, the “complaint clearly and specifically claims that [Price] breached the [employment] contract by failing to pay Mr. Bean for work and labor done by him.” Bean’s brief, at 7. Indeed, the complaint specifically alleges that, although Bean “performed his duties and responsibilities under the contract,” Price “breached this contract by ... failing to compensate [Bean] for the work he had performed.” (Emphasis added.) For this alleged breach, the complaint claims “lost wages.”

Because the complaint contains a claim based on work and labor already performed, the burden was on Price, the party claiming that venue is improper in Montgomery County, to show that no “substantial” amount of the work was done in Montgomery County. Ex parte Adamson, 408 So.2d at 153. However, Price offered no evidence indicating that Bean, Price’s employee, had not performed a substantial amount of his work in Montgomery County. In its reply brief, Price faults Bean for offering “insufficient” evidence indicating that a “ ‘substantial amount’ of the work he performed” was done in Montgomery County. Reply brief, at 3. However, as previously stated, the burden of proof on this factual issue was upon Price, the party challenging venue, not upon Bean. See Ex parte Wiginton, 743 So.2d at 1074.

Now, we must address whether the trial court exceeded its discretion by refusing to transfer the case to Chilton County pursuant to § 6-3-21.1(a), the forum non conveniens statute. “[T]his Court reviews mandamus petitions challenging a ruling on venue on the basis of forum non conveniens by asking whether the trial court exceeded its discretion.” Ex parte Kane, 989 So.2d 509, 511 (Ala.2008).

With respect to civil actions filed in a proper venue, the circuit court “shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action ... to any court of general jurisdiction in which the action might have been properly filed.” § 6-3-21.1(a). “‘A defendant moving for a transfer under § 6-3-21.1 has the initial burden of showing that the transfer is justified, based on the convenience of the parties or witnesses or based on the interest of justice.’ ” Ex parte Kane, 989 So.2d at 511 (quoting Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998)).

In denying Price’s motion to transfer the case on the basis of the doctrine of forum non conveniens, the trial court addressed only the interest-of-justice prong of § 6-3-21.1(a). More specifically, the trial court found that a transfer to Chilton County was not required in the interest of justice, because “a substantial amount of the work performed by [Bean] occurred in Montgomery County, [thereby giving] [t]he citizens of Montgomery County ... an interest in determining the rights and liabilities of the parties to the suit.” (Internal quotation marks and citation omitted.)

Rule 21(a)(1)(D), Ala. R.App. P., requires that a petition for the writ of mandamus “shall contain ... a statement of the reasons why the writ should issue, with citations to the authorities and the statutes relied on.” A failure to cite authority supporting an argument “provides this Court with an ample basis for refusing to consider th[e] argument[ ], and [a] petition could properly be denied on that basis.” Ex parte Showers, 812 So.2d 277, 281 (Ala.2001). All the cases cited by Price in support of its forum non conveniens argument deal with only the interest-of-justice prong of § 6-3-21.1(a); none deal with the convenience prong of the statute. Therefore, we will limit our analysis to the interest-of-justice prong under the facts of this case.

“[I]n analyzing the interest-of-justice prong of § 6-8-21.1, this Court focuses on whether the ‘nexus’ or ‘connection’ between the plaintiffs action and the original forum is strong enough to warrant burdening the plaintiffs forum with the action.” Ex parte First Tennessee Bank Nat’l Ass’n, 994 So.2d 906, 911 (Ala.2008). The trial court concluded “that a substantial amount of the work performed by [Bean] occurred in Montgomery County,” and, as already discussed, Price offered no evidence indicating that Bean had not performed substantial work in Montgomery County during the months immediately before his employment was terminated. Surely the residents of Montgomery County have, as the trial court recognized, an interest in seeing that persons are paid properly for work and labor performed in their county. Indeed, by providing in § 6-3-3 that “actions for work and labor done ... may be commenced in the county in which the work was done,” the legislature has recognized a strong enough connection between an action for work and labor done and the county in which the work was done to justify burdening the trial court in that county with the action.

Price has not demonstrated that the trial court exceeded its discretion in denying its motion to transfer on forum non conve-niens grounds; therefore, Price’s petition for the writ of mandamus is denied.

PETITION DENIED.

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


author: PER CURIAM.

text:
    Jerry ALEXANDER and Bryan Courtney v. GEICO INSURANCE COMPANIES.
    1081755.
    Supreme Court of Alabama.
    May 14, 2010.

      Huel M. Carter, Fultondale, for appellants.
    Thomas R. Jones, Jr., and Randal Kevin Davis of Jones, Wyatt & Davis, P.C., Tuscaloosa, for appellee.
   PER CURIAM.

Jerry Alexander and Bryan Courtney (“the plaintiffs”) appeal the trial court’s sua sponte dismissal of their action for want of prosecution. We affirm.

Facts and Procedural History

On April 17, 2008, the plaintiffs sued Geico Insurance Companies (“Geico”) in the Jefferson Circuit Court seeking uninsured-motorist benefits. The complaint alleges that Geico had issued Alexander an automobile-insurance policy containing uninsured-motorist coverage and that the plaintiffs were injured in an automobile accident with an uninsured motorist in September 2007. The complaint does not specify the type of injuries the plaintiffs suffered, only that “as a result of the automobile accident complained of herein, [the] plaintiffs sustained injuries for which they are legally entitled to collect damages from an uninsured motorist as provided in the Geico policy of insurance.” On or about May 7, 2008, Geico answered the complaint by denying each allegation within the complaint. That same day Geico also served written interrogatories and requests for production on each of the plaintiffs.

On August 19, 2008, the trial court entered an order designating this action as a “Standard Track case” and setting a scheduling conference for September 25, 2008. On September 29, 2008, the trial court entered a scheduling order stating that all pending written discovery was to be completed within 60 days. The scheduling order also set the case for trial on May 11, 2009.

On December 10, 2008, Geico served a second set of written interrogatories on each of the plaintiffs. That same day, Geico also moved the trial court to compel Courtney to respond to the written interrogatories and requests for production it had served on him in May 2008. On December 15, 2008, the trial court granted the motion to compel and ordered Courtney to respond to the interrogatories within 14 days. On January 7, 2009, Courtney responded to the requests for production served on him in May 2008.

On April 23, 2009, the plaintiffs and Geico filed a joint motion to continue the trial date of May 11, 2009, because, they asserted, discovery in the case had not been completed. On April 29, 2009, the trial court denied the motion. Geico then moved the trial court to reconsider its denial of the motion to continue. The trial court denied the motion to reconsider, but the court then vacated that denial and reset the trial date for June 22, 2009.

On June 8, 2009, Geico provided the plaintiffs’ counsel with its witness and exhibit list. That same day Geico filed two motions to compel — one related to the second set of interrogatories Geico served on each plaintiff on December 10, 2008, and another related to the interrogatories Gei-co had served on Courtney in May 2008, and for which it had previously obtained an order to compel. On June 15, 2009, the trial court entered an order granting both motions and ordering the plaintiffs to answer the interrogatories within three days. The order further states that “[failure to comply with this Order will result in your case being dismissed.”

On June 16, 2009, the plaintiffs provided Geico with responses to the interrogatories, and they moved the trial court to continue the trial date from its current setting of June 22, 2009. As grounds for the continuance, the plaintiffs asserted:

“The plaintiff, Jerry Alexander, is currently being treated for back problems related to this accident and has been informed that back surgery is needed.
“The Plaintiff, Bryan Courtney, resides in Florida and is unable to attend trial next week.”

Geico responded to the motion for a continuance by asserting that it “vehemently oppose[d] any continuance of this action.” In opposition to a continuance, Geico stated that during a deposition on April 27, 2009, “Alexander testified to only one follow up doctor visit since the date of the accident on September 14, 2007,” and that the doctor told him “ ‘there was nothing he could do’ in relation to further treatment for his back injury.” Geico also asserted that the trial court should not grant the motion to continue because, it said, the plaintiffs’ counsel “had failed to comply with any of this Court’s Pre-Trial Orders having not filed a Witness, Exhibit, or Damages List and has continually failed to respond to [Geico’s] request for documents, evidence, and discovery responses....”

The trial court denied the plaintiffs’ motion for a continuance on June 18, 2009. On June 23, 2009, the trial court entered an order dismissing the action with prejudice. The order states:

“The above-styled case came on before the Court for trial on June 22, 2009.
“The Plaintiff[s] failed to comply with the Scheduling Order dated September 29, 2008, and the Court’s order compelling responses to outstanding discovery dated June 15, 2009. Further, the Plaintiff[s] failed to adequately prepare for trial.
“This case is hereby dismissed with prejudice for failure to prosecute. Costs taxed as paid.”

Although the record contains no indication of when the trial court ordered mediation of this case or when the mediation occurred, the trial court had apparently referred the case to a mediator, because the next day, June 24, 2009, the trial court entered an order stating that the parties must split the $750 fee of the mediator.

On July 2, 2009, the plaintiffs filed a “Motion to Set Aside Dismissal and Reinstate Case.” In relevant part, paragraph one of that motion states:

“The Plaintiffs were prepared for trial on the date set by this Court. All subpoenas had been issued. The Plaintiffs were present and prepared to testify. The expert witness, Dr. Fred Patton, was on call and prepared to testify on behalf of the plaintiffs. The witness Officer Pat Malone of the Fultondale Police Department was; on call and prepared to testify as well.”

The trial court held a hearing on the motion on July 27, 2009, and, on August 3, 2009, the trial court entered an order denying the motion. The order states:

“After hearing the oral arguments of counsel and reviewing the pleadings, the Court finds as follows:
“1. This trial was dismissed because the Plaintiffs failed to comply with the Scheduling Order dated September 29, 2008, and the Court’s Order compelling responses to outstanding discovery requests dated June 15, 2009.
“2. On the date of trial, the Plaintiff[s] represented to the Court that [they were] not prepared to move forward with trial. Therefore, based on the inaccuracy of the assertions in Paragraph One of the Plaintiffs’ Motion to Set Aside, the Motion is hereby DENIED.”

The plaintiffs now appeal the dismissal of the case.

Discussion

The dismissal of civil actions is governed by Rule 41, Ala. R. Civ. P. Rule 41(b), Ala. R. Civ. P., provides that an action may be dismissed “[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of [the] court.” This Court has advised:

“ ‘Rule 41(b) has been construed to mean that a trial court has the inherent power to dismiss a cause for want of prosecution or for failure to comply with court rules or orders. Ryder Int’l Corp. v. State, 439 So.2d 162 (Ala.Civ.App.1983). Accord, Link v. Wabash R.R., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Such a dismissal is generally considered to be within the sound discretion of the trial court and will be reversed on appeal only for an abuse of that discretion. Whitehead v. Baranco Color Labs, Inc., 355 So.2d 376 (Ala.Civ.App.1978). It need only be determined, upon appellate review of a trial court’s action under Rule 41(b), whether the ruling is supported by the evidence. Strickland v. National Gypsum Co., 348 So.2d 497 (Ala.Civ.App.1977); Nettles v. First Nat’l Bank, 388 So.2d 916 (Ala.1980).’ ”

Gill v. Cobern, 36 So.3d 31, 32 (Ala.2009) (quoting Riddlesprigger v. Ervin, 519 So.2d 486, 487 (Ala.1987)). Accordingly, the issue in this case is whether the trial court exceeded its discretion in dismissing the plaintiffs’ action for want of prosecution. This Court has advised that “[b]e-cause the trial judge is in the best position to assess the conduct of the plaintiff and the degree of noncompliance, his decision to grant a motion to dismiss for failure to prosecute will be accorded considerable weight by a reviewing court.” Jones v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 604 So.2d 332, 341 (Ala.1991).

The plaintiffs argue that the trial court exceeded its discretion in dismissing this action because, they say, “the delays in responding to the discovery requests per the Court’s scheduling order do not constitute contumacious conduct or a lengthy delay to justify dismissal with prejudice.” The plaintiffs’ brief, at p. 15. To support this argument, the plaintiffs rely upon Smith v. Wilcox County Board of Education, 365 So.2d 659 (Ala.1978), in which this Court applied the rule articulated by the United States Court of Appeals for the Fifth Circuit that “a trial judge may dismiss with prejudice an action ‘only in the face of a clear record of delay or contumacious conduct by the plaintiff.’ ” 365 So.2d at 661 (quoting Durham v. Florida East Coast Ry., 385 F.2d 366, 368 (5th Cir.1967)). The plaintiffs contend that their “actions ... in no way reflect contumacious conduct,” because, “although not made timely, [their discovery responses] were filed with the court constituting present diligence and barring dismissal.” The plaintiffs’ brief, at p. 17. Significantly, the plaintiffs completely disregard the portion of the trial court’s order that bases the dismissal on the plaintiffs’ failure to be prepared for trial on June 22, 2009. The plaintiffs fail to refute that trial court’s finding that “[o]n the date of trial, the Plaintiffls] represented to the Court that [they were] not prepared to move forward with trial.” Further, a transcript of neither the June 22, 2009, proceedings nor the hearing on the motion for reinstatement of this case is included in the record, and the plaintiffs failed to file a statement of proceedings in lieu of a transcript pursuant to Rule 10(d), Ala. R.App. P. See Ex parte Howell, 974 So.2d 304, 306 (Ala.2007) (“ ‘A reviewing court cannot predicate error on matters not shown by the record .... Indeed, a silent record supports a judgment.... It is the appellant’s duty to file a correct record.’ ” (quoting Robinson v. State, 444 So.2d 884, 885 (Ala.1983))).

In response to the plaintiffs’ arguments, Geico argues that the trial court did not exceed its discretion in dismissing this action for want of prosecution because, it says, “counsel for the [plaintiff] represented to the trial court, on the day of trial, that said parties were not prepared to move forward with trial.” Geico’s brief, at p. 11. In support of this position, Geico contends that Scullin v. Cameron, 518 So.2d 695 (Ala.1987), is dispositive. Under facts similar to the facts of this case, the trial court in Scullin denied a motion for a continuance and dismissed the action with prejudice for want of prosecution after, on the scheduled trial date, the plaintiffs counsel represented that he was not prepared to proceed to trial, although the defendants were prepared for trial. 518 So.2d at 697. This Court affirmed the trial court’s judgment of dismissal, holding:

“[W]hen plaintiff refused to proceed, the trial court had no alternative but to dismiss the case. Under those circumstances — the continuance having been properly denied, the defendant and his witnesses being present and ready for trial, and the plaintiff willfully refusing to proceed — this Court cannot hold that the trial court was in error for entering a dismissal.”

518 So.2d at 699-700.

The plaintiffs failed to file a reply brief, thereby again failing to refute the trial court’s finding that they were not prepared to proceed to trial on June 22, 2009.

This Court has held that “[i]n every action there comes a point when the interest of the court in controlling its calendar and the risk to the defendant outweigh the interest in disposing of the litigation on the merits.” Selby v. Money, 403 So.2d 218, 220 (Ala.1981). Here, the plaintiffs have not demonstrated that the trial court exceeded its discretion in finding that that point had been reached. From all that appears before us, the plaintiffs failed to meet discovery deadlines imposed by the trial court, and they were not prepared to proceed to trial after the trial court had continued the trial date one time. “A dismissal for want of prosecution is within the discretion and inherent power of the trial court,” Selby, 403 So.2d at 220, and the plaintiffs have failed to demonstrate that the trial court exceeded its discretion in dismissing this action for want of prosecution.

As a separate issue on appeal, the plaintiffs argue that an alleged “ex parte communication between [the trial court] and [the] Mediator ... warrants an unfair prejudice against [the plaintiffs], violates the Judicial Cannon of Ethics and Mediator Ethics and therefore constitutes reversible error.” The plaintiffs’ brief, at p. 7. The plaintiffs have not presented any evidence indicating that an ex parte communication took place between the trial court and the mediator. Likewise, the plaintiffs have not presented any evidence indicating that they complained of the alleged ex parte communication to the trial court or that they moved the trial judge to recuse herself from this action because of the alleged communication. “This Court does not have the obligation to search the record for substantiation of unsupported factual matter appearing in an appellant’s brief in order to determine whether a judgment should be reversed.” Friedman v. Friedman, 971 So.2d 23, 31 (Ala.2007). Because the plaintiffs have failed to substantiate their allegations that an ex parte communication occurred between the trial court and the mediator or that they complained of such a communication to the trial judge or moved the trial judge to recuse herself, we need not address this claim.

Conclusion

Based on the foregoing,- the judgment of the trial court is affirmed.

AFFIRMED.

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

      . The record is not clear as to whether, in January 2009, Courtney had responded to some or all the written interrogatories served on him in May 2008. Geico, in its brief to this Court, asserts that "Courtney responded to Geico's requests for production on January 7, 2009, and Geico’s interrogatories on January 9, 2009.... ” Geico’s brief, at p. 2. However, on the next page of its brief, Geico asserts that ”[t]he second motion [to compel] was directed to Plaintiff Courtney and his failure to respond to Geico’s May 7, 2008, interrogatories.” Geico’s brief, at p. 3. The record contains a document entitled "Plaintiff’s Responses to Defendant’s Request for Production,” filed on January 7, 2009, but the record does not contain Courtney’s answers to written interrogatories.

      . Rule 10(d), Ala. R.App. P., provides, in pertinent part: "If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection.”


author: THOMAS, Judge.

text:
    Mary SIMMONS, Dytisha Goodgame, and Sheila Whetstone-Tuck v. COOSA COUNTY BOARD OF EDUCATION and Todd Wingard, as superintendent of the Coosa County Board of Education.
    2071135.
    Court of Civil Appeals of Alabama.
    June 19, 2009.
    Rehearing Denied Aug. 14, 2009.
    Certiorari Denied April 9, 2010 Alabama Supreme Court 1081616.

      Winn Faulk, Montgomery; and Sam Heldman of The Gardner Firm, P.C., Washington, D.C., for appellants.
    Anne R. Yuengert and Donald B. Sweeney, Jr., of Bradley Arant Rose & White LLP, Birmingham, for appellees.
   THOMAS, Judge.

Mary Simmons, Dytisha Goodgame, and Sheila Whetstone-Tuck (“the employees”) sued the Coosa County Board of Education (“the Board”) and Board Superintendent Todd Wingard, alleging breach-of-contract claims and claims arising under the Fair Dismissal Act, § 36-26-100 et seq., Ala.Code 1975 (“FDA”).

The parties stipulated to the following facts:

“1. [The employees] are nonproba-tionary aides employed by the Board.
“2. As nonprobationary aides, they are entitled to the procedural safeguards set forth in the Alabama Fair Dismissal Act, Ala.Code [1975,] § 36-26-102 and § 36-26-103.
“3. [The employees] and [the Board and Wingard] stipulate and agree that [the employees] are .employed by the Board pursuant to a base contract which entitles them to a 30-hour work week (six hours per day, five days a week).
“4. Prior to the start of the 1997-1998 school year, [the Board] asked and [the employees] agreed to work supplemental hours above and beyond their base contract term of 30 hours per week.
“5. In September of 1997, each [employee] signed a Temporary Work Contract in which they agreed to work ‘... 2 extra hours per day at my regular rate of pay.’
“6. From the 1997-1998 school year until the 2002-2003 school year, each [employee] continued to work two additional hours each day above and beyond their base term of employment: stated otherwise, [the employees] worked a 40-hour week (30 hours base contract week; 10 hours temporary work week) for each of the following school years:
“(a) 1997-1998
“(b) 1998-1999
“(c) 1999-2000
“(d) 2000-2001
“(e) 2001-2002
“7. In September of the 2002-2003 school year, the Board cancelled the temporary employment contract of each of the three [employees]. By this action, the number of hours each [employee] worked each week went from 40 hours a week (30 base; 10 temporary) to 30 hours a week.
“8. The Board unilaterally cancelled the temporary work contract of the [employees] without a hearing.
“9. [The employees] contend that the reduction in weekly hours of work from 40 hours to 30 hours constitutes a partial cancellation of their employment contracts.
“10. [The employees] contend that the Alabama Fair Dismissal Act, specifically Ala.Code [1975,] § 36-26-102, entitles them to a hearing before the Board can reduce their work hours.
“11. [The employees] requested a hearing before the Board to challenge the reduction in work hours, but the Board denied the request.
“12. [The employees] contend that the action of the Board to reduce their weekly hours of work from 40 hours to 30 hours violated the Alabama Fair Dismissal Act in that the Board did not comply with the procedural requirements of the Act by holding a hearing before taking such action.
“13. [The Board and Wingard] contend that the [employees] are bound by the terms of the temporary work contract, signed by each [employee]. The temporary work contract states:
“ T ... (name) agree to work 2 extra hours per day at my regular rate of pay.
“T understand that this is a temporary agreement which will last only as long as the extra work time is needed by the school system and that the extra hours are nontenurable.
“ T understand that my regular pay and tenure are based on my regular aide position.’
“Each [employee] signed a temporary work contract.
“14. [The employees] contend they are entitled to be made whole for all [pay] they would have earned if the temporary work contract had not been unilaterally cancelled in September of 2002.
“15. [The Board and Wingard] dispute this contention. [The Board and Wingard] maintain that these employees were hired by the Board as 30-hour a week aides. It is this base employment position which entitled [the employees] to procedural rights under the Fair Dismissal Act. This base contract has not been changed.
“16. The parties stipulate that, in the event the Court determines that the Board should have provided a hearing to each of the [employees] before reducing their weekly hours of work from 40 hours per week to 30 hours per week, the action of the Board was based upon mistake of law and fact and did not constitute an intentional violation of law.
“17. The [employees] agree to stipulate to the factual assertions set forth in the affidavit of Todd Wingard, but the [employees] do not stipulate to any statements of argument or conclusions of law set forth in the affidavit.

Superintendent Wingard’s affidavit contains the following factual assertions:

“These three employees were employed by the Board as 30-hour per week aides. They have never been approved by the Board as 40-hour week employees.
“[The employees] worked as special education aides. As special education aides, they would attend to and assist students with disabilities. Students with disabilities must be assisted or accommodated to make sure they receive an appropriate education notwithstanding their handicap. The needs of handicapped children vary from time to time.
“For example, a child with orthopedic problems may need help one week or month on the school bus, but not the next week or month. The child may become self-reliant and no longer need the aide. Or the child may become too sick to come to school or otherwise drop out of school, thereby eliminating the need for an aide.
“In short, the needs and requirements of the special education children change from time to time.
“Recognizing these changing circumstances, it made sense to the Board to see if existing aides would like additional work to cover the special needs of handicapped students before and after school rather than hire a full-time employee.
“As I stated before, our aides work 30 hours a week. Their salaries for this work have generally been less than a thousand dollars a month for the nine months of the school year. The aides often need and want additional work.
“Given the [employees] desired to earn more money than their base pay, and the Board’s interest to meet the changing needs of its special education students without hiring additional full-time aides, the employees and the administrators worked out an arrangement to best serve the needs of both.
“The school district asked if the [employees] were willing to work, on a temporary basis, up to two hours a day or ten hours extra a week — on an as-needed basis. The [employees] stated they were willing to do so.
“To make sure it would be legal to enter a separate contract with the employees to work on a temporary basis to meet the changing needs of the special education students, the Superintendent and the Special Education Coordinator asked the UniServ Director of AEA [the Alabama Education Association] to verify that the Board could use employees for the extra work without affecting their tenured contract. The Superintendent and the AEA UniServ Director worked together to develop the temporary work contract, which each of the [employees] signed. The Board approved the recommendation to give the Superintendent of Education authority to determine assignments for the extra work.
“[T]he voters of Coosa County rejected a proposed tax increase. This left the Board in desperate financial condition.
“To address this crisis, I, as Superintendent, had the responsibility to cut costs wherever I could.
“I determined that we did not need to use [the employees] for this work. I determined that we could make scheduling adjustments so this ‘extra work’ would not be necessary or required.
“Now [the employees] want three years of pay for work they did not do; and want us to go through an expensive hearing to show what everybody knows — the Coosa County Board is in a financial crisis.”

The parties filed cross-motions for a summary judgment and briefs in support of their positions. On July 24, 2008, the trial court entered the following judgment, after which the employees timely appealed to this court:

“After a consideration of the Stipulation of Facts, briefs of the parties, applicable case law and Alabama’s Fair Dismissal Act, the Court finds that [the Board and Wingard are] entitled to judgment as a matter of law. This is primarily due to the fact that the [employees] entered into separate temporary agreements each year, which clearly state that the agreements were ‘temporary’ and that pay and tenure were based on the ‘regular six-hour position.’ These agreements were approved by an AEA representative. [The employees] also entered into separate general aide agreements each year as well. As such, the Board’s failure to renew these contracts does not appear to violate any provision of the Fair Dismissal Act.
“Accordingly, Judgment is hereby entered in favor of [the Board and Win-gard] and against the [employees].”

Standard of Review

Because this appeal comes to us on stipulated facts and the trial court’s ruling on cross-motions for a summary judgment, our review is de novo. See Provident Life & Cas. Co. v. Crean, 804 So.2d 236 (Ala.Civ.App.2001).

“The trial court was not presented with any disputed facts, nor was there any oral testimony taken. It is well settled that ‘[w]here the evidence before the trial court is undisputed, ... the appellate court shall sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to' the facts.’ Justice v. Arab Lumber & Supply, Inc., 533 So.2d 538, 542 ([Ala.] 1988), citing Abel v. Forrest Realty, Inc., 484 So.2d 1069 (Ala.1986); Stinson v. Stinson, 494 So.2d 435 (Ala.Civ.App.1986); Stiles v. Brown, 380 So.2d 792 (Ala.1980). Because we construe the trial court’s judgment not as a summary judgment, but rather as a judgment on stipulated facts, we review this case using the de novo standard.”

Crean, 804 So.2d at 238.

The FDA Claim

The FDA entitles nonprobationary employees of school systems and other entities to certain due-process rights before their employment is terminated, including 15 days’ notice of termination, see § 36-26-101, Ala.Code 1975, and the right to a hearing if the employee wishes to contest the termination, see § 36-26-103 and -104, Ala.Code 1975. A nonprobationary employee is one who has been employed by the employer for three years or more. See § 36-26-101, Ala. Code 1975. The FDA applies only to full-time employees, i.e., those “whose duties require 20 or more hours in each normal working week of the school term, employing board holidays excepted.” § 36-26-100, Ala.Code 1975.

Citing Ex parte Green, 689 So.2d 838 (Ala.1996); Ledbetter v. Jackson County Board of Education, 508 So.2d 244 (Ala.1987); and Carter v. Baldwin County Board of Education, 532 So.2d 1017 (Ala.Civ.App.1988), the employees contend that the Board’s reduction of their work hours constituted a “partial termination” of their employment, thereby triggering the protections of the FDA. Specifically, the employees assert that they were entitled to a hearing before the Board reduced their hours.

Ledbetter is the seminal case holding that partial termination of employment triggers the right to a hearing under the FDA. In Ledbetter, the school board reduced the regular working hours of three nonprobationary lunchroom workers from 35 to 30 hours per week due to decreased enrollment at an elementary school. The employees requested a hearing under the FDA, and the school board filed a declaratory-judgment action, seeking a ruling that the board had neither “terminated” the employees within the meaning of § 36-26-103, Ala.Code 1975, nor “transferred” them within the meaning of § 36-26-105, Ala.Code 1975 — the only adverse employment actions specifically mentioned in the FDA that trigger the right to a hearing. The circuit court entered a declaratory judgment for the school board.

On appeal to the Alabama Supreme Court, the employees in Ledbetter argued that the court should construe the provisions of the FDA dealing with “termination” in pan materia with § 16-24-3, Ala.Code 1975, a part of the Teacher Tenure Act (“TTA”), § 16-24-1 et seq., Ala. Code 1975, which provides, in pertinent part:

“The contract of employment of any teacher who shall attain continuing service status shall remain in full force and effect unless superseded by a new contract signed by both parties, or cancelled as provided in Section 16-24-9 or 16-24-10 [establishing procedural protections that must precede cancellation].”

(Emphasis added.) Relying on its earlier decision in Ex parte Wright, 443 So.2d 40 (Ala.1983), the supreme court analyzed the case as an invalid “partial termination” of the lunchroom workers’ employment. 508 So.2d at 245. The Ledbetter court stated:

“In Wright, this Court addressed the issue of whether certain tenured teachers’ contracts had been improperly can-celled by the school board. This Court held that a new contract, which changed the number of months that the teachers were to work from ten to nine was a ‘partial cancellation’ of the old contract, and as such could not be enforced without compliance with the procedures set out in § 16-24-9 of the Teacher Tenure Act.”

Id. See Wright, 443 So.2d at 42 (stating that “[t]here can be no question that there was a partial cancellation, since the teachers’ old contract, providing that they would work ten months at a certain annual salary, was replaced by a new contract that provided they would work only nine months at a commensurately reduced annual salary”).

In Ledbetter, the supreme court discussed the fact that the trial court had rejected the employees’ invitation to construe the FDA in pari materia with the TTA because, the trial court had reasoned, there was a “material distinction” between the FDA and the TTA. Commenting on that reasoning, the supreme court stated:

“Although a narrow reading of § 36-26-102, § 16-24-3, and Wright, supra, leaves room for the trial court’s distinction between the Fair Dismissal Act and the Teacher Tenure Act, the relevant principles of due process under the Fourteenth Amendment lead us to the conclusion that Mrs. Ledbetter has been deprived of her property interest in her employment without due process of law.”

Ledbetter, 508 So.2d at 245-46. The court decided that, notwithstanding an arguable distinction between the FDA and the TTA, the trial court had erred by failing to acknowledge that the employees had a “ ‘legitimate claim of entitlement’ ” to, and therefore a “property interest” in, continued employment that made the school board’s reduction of their working hours without a hearing a denial of due process. 508 So.2d at 246 (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and citing Perry v. Sindermann, 408 U.S. 593, 602-03, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972)). See also Stallworth v. City of Evergreen, 680 So.2d 229, 233 (Ala.1996) (stating that Roth held that “a governmental employee’s contractual or statutory right to continued employment [is] a property interest falling within the scope of the Fourteenth Amendment’s protection,” and noting that Goss v. Lopez, 419 U.S. 565, 573, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), held that “ ‘a state employee who under state law, or rules promulgated by state officials, has a legitimate claim of entitlement to continued employment absent sufficient cause for dismissal may demand the procedural protections of due process’ ”).

In Carter — the second case on which the employees in the present case rely — the employees were nonprobationary school-board personnel who performed dual duties, including cafeteria work, custodial work, working as teachers’ aides, and driving school buses. Pursuant to the ruling of the United States Supreme Court in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), indicating that the employees were subject to the requirements of the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-208, the school board reduced the employees’ weekly work hours to 40 in order to avoid paying them overtime compensation. The employees sought a judgment declaring that they were entitled to notice and a hearing before their work hours were reduced. The trial court determined that the employees had a “property interest” only in a 40-hour week and not in overtime hours.

Following the ruling in Ledbetter, which had been decided the previous year, this court reversed the trial court’s judgment, holding that the employees had a property interest in the “whole” of them employment. 532 So.2d at 1019. The court stated: “We read Ledbetter as including any reduction in regularly scheduled hours as a partial termination since these scheduled hours constituted the employee’s employment as a whole.” Id.

In Green — the third case upon which the employees here rely — each employee worked in the school lunchroom and also worked as a custodian. The employees’ lunchroom duties required more than 20 hours per week; their custodial duties required less than 20 hours per week. The school board terminated their services as custodians, arguing that the employees “had two distinct jobs in the school and that because they worked less than 20 hours as custodians, their termination as custodians was not covered by the [FDA].” 689 So.2d at 839. The Alabama Supreme Court disagreed, stating that the school board’s interpretation “would defeat the purpose of the [FDA].” Id. The court held that the plain language of the FDA protected employees who worked 20 or more hours per week and that, irrespective of the distinct jobs the employees performed during the week, they were entitled to the due-process protections established by the FDA because they had a property interest in the “whole” of their employment. Id.

As the foregoing discussion makes clear, a school board’s failure to provide its employees with notice and a hearing regarding the reduction of their working hours was analyzed as a denial of due process in Ledbetter, Carter, and Green. The threshold inquiry in any claim of denial of due process is whether the interest asserted rises to the level of a “property interest.” See Stephenson v. Lawrence County Bd. of Educ., 782 So.2d 192, 200 (Ala.2000). The employees in Ledbetter, Carter, and Green were entitled to the due-process protections of the FDA because the base contracts pursuant to which they had worked and gained nonprobation-ary status under the FDA gave them a “legitimate claim of entitlement” to, and, therefore, a “property interest” in, working and being paid for the number of hours that they had been working before the board reduced their hours.

However, “a public employee whose duties are terminable at will has no property interest in continued employment,” Mountain v. Collins, 430 So.2d 430, 433 (Ala.1983); see also Davis v. J.F. Drake State Tech. Coll., 854 So.2d 1151 (Ala.Civ.App.2002); and Gainous v. Tibbets, 672 So.2d 800 (Ala.Civ.App.1995), and an employee “has no property rights in a position of temporary employment, where termination may occur at will,” Woods v. Milner, 955 F.2d 436, 440 (6th Cir.1992). In Board of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. 2701, the United States Supreme Court explained:

“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined.”

We cannot conclude that the employees in the present case could have had a valid expectation of, or have reasonably relied in their daily lives upon, continuing to receive 10 extra work hours a week and the pay those extra hours merited when they signed contracts that were specifically designated as “Temporary Work Contracts” that would “last only as long as the extra work time is needed by the school system.” Nor can we conclude that the employees could reasonably have relied upon being afforded a hearing as guaranteed by the FDA before their work hours were reduced when the “Temporary Work Contracts” expressly provided that their “extra hours are nontenurable” and that their “regular pay and tenure [were] based on [their] regular aide position[s].” In our judgment, the employees’ “Temporary Work Contracts” may have given them a “need or desire” for the extra hours and pay they received, but the contracts did not give them a “legitimate claim of entitlement” to the additional time and compensation. See Roth, 408 U.S. at 577, 92 S.Ct. 2701.

The employees argue that their “Temporary Work Contracts” are subject to the following rules: (1) that “the terms and provisions of the [Teacher Tenure] Act are to be read into all contracts entered into by school boards and teachers,” Haas v. Madison County Bd. of Educ., 380 So.2d 873, 875 (Ala.Civ.App.1980); (2) that “ordinary contract principles do not control when they conflict with the intent of the [teacher] tenure law,” Ex parte Wright, 443 So.2d at 41; and (3) that “an attempted waiver of the protection afforded by teacher tenure laws is ineffectual on public policy grounds,” Ex parte Wright, 443 So.2d at 42. Relying on the rules stated in Wright and Haas, the employees contend that their “Temporary Work Contracts” are ineffectual because the contract provisions are in conflict with the provisions of the FDA and represent an attempted waiver of the due-process protections guaranteed by the FDA.

Initially, we point out that Wright and Haas, as well as Morgan v. Huntsville City Board of Education, 510 So.2d 260, 261 (Ala.Civ.App.1987), another decision citing the rules stated in Wright in Haas, are cases applying the TTA — not the FDA — and the rules stated in those three cases have not even been applied to all cases alleging a violation of the TTA, much less to cases alleging a violation of the FDA. In Davis v. Russell, 852 So.2d 774 (Ala.Civ.App.2002); Campbell v. Talladega City Board of Education, 628 So.2d 842 (Ala.Civ.App.1993); and Bryan v. Alabama State Tenure Commission, 472 So.2d 1052 (Ala.Civ.App.1985), Alabama appellate courts held that a teacher is not entitled to a TTA hearing upon the nonre-newal of his or her “supplemental contract” with respect to a position such as an athletic coach or a student-activity sponsor.

Furthermore, although Alabama appellate courts have sometimes been receptive to construing the FDA in pari materia with the TTA, see Ledbetter, 508 So.2d at 245, our courts have pointed out that such construction is not always appropriate, see, e.g., Ex parte Athens State Coll., 795 So.2d 709, 714 (Ala.2000) (stating that § 36-26-102, a part of the FDA, should not have been construed in pari materia with § 16-24-8, a part of the TTA, because “[t]enured teachers are afforded special protections. The ‘special’ consideration given tenured teachers is reflected in the Tenure Act’s purpose, which is ‘to promote stability in employment and to prevent a board from discharging a tenured teacher instead of a nontenured teacher.’ ” (quoting Ex parte Alabama State Tenure Comm’n, 595 So.2d 479, 481 (Ala.1991))); and Ray v. Decatur City Bd. of Educ., 728 So.2d 680, 683 (Ala.Civ.App.1998)(stating that, “[u]n-like the Teacher Tenure Act, ... the FDA does not contain an automatic contract renewal provision”).

Finally, even if the rules stated in Wright, Haas, and Morgan could, under other circumstances, be applicable to a case arising under the FDA — a question we expressly do not decide — they are not applicable here because the contracts at issue in those three cases were the contracts upon which the teachers had been working when they earned tenure. In Wright, the school board presented tenured teachers with new contracts purporting to reduce their term of employment, and accordingly them pay, from 10 months to 9 months. In Haas, the school board attempted, at the end of a principal’s third year of employment as a principal, to extend his probationary period another three years. In Morgan, the school board attempted to extend tenured teachers’ contracts from 196 days to 200 days without additional compensation.

In the present case, the “Temporary Work Contracts” were clearly not the base contracts under which the employees had been working when they earned non-probationary status. Nor did the temporary contracts purport to cancel or nullify the contracts on which the employees had achieved nonprobationary status. The temporary contracts were, instead, “supplemental” to the employees’ base contracts. We hold that, if there is an analogy between the FDA and the TTA that can be applied to this case, it lies in the fact that neither act guarantees the right to a due-process hearing before the termination or partial termination of a “supplemental” contract for which the employee cannot earn tenure. We hold that the employees’ “Temporary Work Contracts” are analogous to teachers’ supplemental employment contracts.

Although § 16-24-12, Ala.Code 1975, a part of the TTA, requires that notice of the nonrenewal of a teacher’s supplemental contract be timely — i.e.,' given “on or before the last day of the term of the school in which the teacher is employed,” when nonrenewal of the supplemental contract means that the teacher will not be “ ‘reemploy[ed] for the succeeding school year at the same salary,’ ” Boone v. Birmingham Bd. of Educ., 45 So.3d 757, 759 (Ala.Civ.App.2008) (quoting § 16-24-12) (emphasis added) — a teacher is not entitled to a hearing upon the nonrenewal of his or her supplemental contract, see Davis v. Russell, supra; Campbell v. Talladega City Bd. of Educ., supra; and Bryan v. Alabama State Tenure Comm’n, supra. The employees in the present case make no argument that there was any defect with respect to the notice they received as to the cancellation of their “Temporary Work Contracts.”

The Breach-of-Contract Claim

The employees’ sole argument with respect to the breach-of-contract claim is that, based on Haas, the terms and provisions of the FDA are to be read into the “Temporary Work Contracts” they signed in 1997, thereby guaranteeing them a hearing before their work hours were reduced — an argument that we have previously discussed and rejected. Accordingly, we conclude that the judgment of the trial court is due to be affirmed.

AFFIRMED.

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

      "1 The exact number of hours worked by each [employee] is documented in the records of the Board. Some weeks the employees may have worked less than 10 extra hours, but generally the employees worked 10 extra hours a week.”

      . Section 36-26-100 provides that the FDA covers
      “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.”