author: WOODALL, Justice.

text:
    Jerry M. BLEVINS and Carol A. Blevins v. HILLWOOD OFFICE CENTER OWNERS’ ASSOCIATION et al.
    1090512.
    Supreme Court of Alabama.
    June 18, 2010.

      Jerry M. Blevins, Montgomery, for appellants.
    Chad W. Bryan of Capell & Howard, P.C., Montgomery, for appellees.
   WOODALL, Justice.

Jerry M. Blevins (“Jerry”) and Carol A. Blevins (“Carol”), husband and wife, appeal from a summary judgment in favor of the Hillwood Office Center Owners’ Association, Inc. (“the HOCOA”), and Russ Chandler, Mark Mullins, Jerry Mitchell, Mike Underwood, Buddy Rousso, and Charles Henson, members of the board of directors of the HOCOA. We vacate the judgment, dismiss the appeal, and dismiss the action.

I. Factual Background

On March 29, 2005, Carol purchased Unit 200-3, Building 200, Phase I (“the unit”), of Hillwood Office Center, a condominium office complex (“the complex”). By quitclaim deed dated May 15, 2005, Carol purported to transfer her interest to Jerry. However, the deed was witnessed solely by Jerry. Moreover, the deed was never recorded in the office of the Montgomery Probate Court, and no copy was presented to the HOCOA. In that connection, Article IX.D.2. of the HOCOA’s declaration of condominium (“the DOC”) provides:

“Change of membership in the [HO-COA] shall be established by the recording in the Probate Court records of Montgomery County, Alabama, of a deed or other instrument establishing record title to a unit, and upon delivery to [the HOCOA] of a certified copy of such instrument, the owner designated by such instrument thereby becomes a member of [the HOCOA], and the membership of the prior owner shall be thereby terminated.”

(Emphasis added.)

By April 15, 2005, Jerry had begun operating a law practice in the unit. He planted shrubbery in front of the unit at a cost of approximately $800. However, the shrubbery wilted and died from lack of water. He then replanted the shrubbery, at a cost of another $300. When Jerry inquired as to why the in-ground sprinkler system at the complex was never activated, Charles Henson, the owner of another unit in the complex, told him that the sprinkler system had not been operational for several years.

In that connection, Jerry also learned that the HOCOA had not held annual meetings in several years and that it had no board of directors. According to Jerry’s affidavit submitted in opposition to the defendants’ summary-judgment motion, he then instigated a meeting of purported unit owners for the purpose of selecting a board of directors. At the meeting, the owners elected a board of directors, of which Jerry was a member and president. He served in that capacity for the next three years.

During that time, the sprinkler system was repaired. It could be activated by anyone from an unlocked control panel located at the rear of the complex. While he was serving as president of the board of directors, Jerry activated the sprinkler system at his discretion. However, he was the only one to do so, and he did so over the objections of Chandler, Mitchell, Underwood, and Henson. Their objections centered on the costs incurred by the HO-COA for the water usage.

Jerry resigned from the board of directors and the presidency in June 2008. In July 2008, the HOCOA elected a new board of directors, including Chandler, Mullins, Mitchell, Underwood, Rousso, and Henson. Mullins was elected president.

On August 10, 2008, Jerry activated the sprinkler system. The next day, Jerry discovered that a lock had been installed on the box containing the control panel for the sprinkler system. The discovery prompted a flurry of e-mails that same day from Jerry to Chandler and other members of the HOCOA’s board of directors.

At 11:56 a.m., Jerry wrote to Chandler in an e-mail: “Until such time as I am provided with a key to the lock on the sprinkler controller box, I would appreciate you ensuring that the lock is immediately removed. Otherwise, I shall have no recourse but to cut it off.” At 1:39 p.m., Chandler sent Jerry the following e-mail:

“I forwarded your earlier request to the board. If you can show me in the bylaws where every association member is entitled to a key to the sprinkler system, I will forward the same information to the board. We want to ensure that we do everything correctly. The only people with a key will be the president and the lawn maintenance contractor. If you remove the lock, you will be responsible for the damage thereto. We as officers and board members are responsible for the common property areas, not condo owners.”

At 2:55 p.m., Jerry sent Chandler the following e-mail:

“I suggest you provide me with a key to the sprinkler box, or remove the lock by the end of the day today, or the lock will be cut off tomorrow morning. I’ll turn the sprinklers on as I see fit in light of the fact that the board is allowing the grass to die presently.”

(Emphasis added.)

Jerry then sent an e-mail to the board of directors, at 2:44 that same afternoon, in which he stated:

“[Chandler] has advised me on several occasions today that the lock on the sprinkler control box will not be removed, nor will I be provided with a key to the lock. The grass around my office is dying as are the bushes that I paid for and installed. This is to be expected in light of the fact that it has not rained for over a week nor have the sprinklers been run during this time.
“In light of the new course the ‘board’ has chosen to take, I advised [Chandler] on this date that in my opinion, the corporate entity known as Hillwood Office Center Owners’ Association, Inc., no longer legally exists. The corporation has not substantially complied with the laws pertaining to corporate existence since inception; therefore, I have decided not to recognize the ‘board’s’ authority on any matters. Accordingly, I hereby demand that each of you take appropriate action to either remove the lock from the sprinkler control box, or provide me with a key to the same, or I shall have no recourse but to take appropriate action to hold each and every one of you liable for the intentional interference with my rights as owner of my office unit. You have until the close of business on tomorrow to act on this demand.
“In addition, until such time as the deficiencies with HOCOA’s corporate existence are remedied, I have no intention of adhering to any rule, regulation, or directive from the ‘board’ of a defunct corporation.”

(Emphasis added.)

When Jerry subsequently found the control box still locked, he broke off the lock and activated the sprinkler system. However, when he next attempted to activate the system, he discovered another lock on the control box. He broke off the second lock. This procedure was repeated over the succeeding weeks until Jerry had broken four locks on the control panel. Finally, Chandler removed the entire control panel and placed it under his exclusive control. As a result, Jerry had to water the shrubbery in front of the unit manually with a garden hose. He unsuccessfully sought access to the HOCOA’s corporate records in connection with his contention that it had not sufficiently complied with laws respecting the HOCOA’s corporate existence.

On September 29, 2008, Jerry sued the HOCOA, as well as Chandler, Mullins, Mitchell, Underwood, Rousso, Henson, and others (hereinafter referred to collectively as “Hillwood”). His complaint sought a declaratory judgment and contained claims alleging (1) nuisance, (2) breach of fiduciary duty, (3) conspiracy, (4) specific performance, and (5) conversion. He sought a judgment declaring, among other things, that the HOCOA did not “legally exist due to [its] failure to comply with the formal requirements of corporate existence” and ordering Hillwood to allow him “immediate access” to various records of the HOCOA. His nuisance count averred that Hillwood “had a duty not to expose [Jerry] to anything that works hurt, discomfort, annoyance, inconvenience, or damage,” and that it breached that duty by “intentionally having the sprinkler controller box locked, and then eventually removed it from the common area location at [the complex] to prevent [Jerry] from watering the grounds, resulting in harm to the landscaping around [Jerry’s] office unit.” According to the complaint, Hillwood converted the sprinkler-control panel by locking it and eventually removing it from the common area. Finally, Jerry averred that Hillwood had breached a fiduciary duty owed to him by, among other things, “locking the sprinkler controller box, and eventually having [it] removed to prevent [Jerry] from watering the grounds,” and “refusing [his] repeated requests for access to the HOCOA’s [records].”

On October 31, 2008, Hillwood filed a “motion to dismiss and counterclaim,” challenging, among other things, Jerry’s standing to sue. More specifically, it asserted that Carol was the record owner of the unit and, therefore, that Jerry “lack[ed] standing to bring any claims regarding the duties and obligations of the [HOCOA] and/or its board of directors.” (Emphasis added.) Hillwood also asserted a counterclaim alleging trespass, by which it sought compensatory and punitive damages. The trespass count alleged that Jerry “lack[ed] any right to access the control box for the sprinkler system” at the complex and that, “without legal authority,” he had “purposeful, intentionally, and repeatedly caused damage to the control box.” Additionally, Hillwood sought a judgment declaring that, among other things, Jerry has no right to access, use, or control the sprinkler system at the complex and had no right to break into the control panel. Hill-wood also sought a judgment “enjoin[ing] [Jerry] from damaging, tampering with, or in any way attempting to use the sprinkler system and/or its control box.”

In December 2008, Jerry amended his complaint to add Carol as a plaintiff. Subsequently, Hillwood moved for a summary judgment on the Blevinses’ claims against it. The trial court granted Hillwood’s motion and certified the judgment as final, pursuant to Rule 54(b), Ala. R. Civ. P. The Blevinses appealed. On appeal, Hill-wood again raises the issue of standing.

II. Discussion — Standing

“ ‘When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.’ ” Riley v. Pate, 3 So.3d 835, 838 (Ala.2008) (quoting State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999)). “Standing is ‘ “ ‘[t]he requisite personal interest that must exist at the commencement of the litigation.’ ” ’ ” Cadle Co. v. Shabani, 4 So.3d 460, 462-63 (Ala.2008) (emphasis added)(quoting Pharmacia Corp. v. Suggs, 932 So.2d 95, 98 (Ala.2005), quoting in turn In re Allison G., 276 Conn. 146, 156, 883 A.2d 1226, 1231 (2005)). “The jurisdictional defect resulting from the plaintiffs lack of standing cannot be cured by amending the complaint to add a party having standing.” Cadle Co., 4 So.3d at 463 (emphasis added). Thus, according to Hillwood, if Jerry lacked standing to sue at the commencement of the action, the December 2008 amendment adding Carol as a plaintiff was a legal nullity. We agree.

“ ‘ “To be a [person with standing], the person must have a real, tangible legal interest in the subject matter of the lawsuit.” ’ ” Ex parte Simpson, 36 So.3d 15, 22 (Ala.2009) (quoting Ex parte Chemical Waste Mgmt., Inc., 929 So.2d 1007, 1010 (Ala.2005), quoting in turn Doremus v. Business Council of Alabama Workers’ Comp. Self-Insurers Fund, 686 So.2d 252, 253 (Ala.1996)). The person asserting the claim must specifically allege an injury in fact to a “legally protected right.” Property at 2018 Rainbow Drive, 740 So.2d at 1027 (emphasis omitted).

Hillwood contends that the quitclaim deed purporting to transfer title to the unit from Carol to Jerry was ineffective, because, it argues, it was neither witnessed in accordance with Ala.Code 1975, § 35-4-20, and relevant caselaw nor recorded and filed as required by the DOC. Thus, according to Hillwood, the complaint was filed by a non-member of the HOCOA who, consequently, lacked standing to challenge the HOCOA’s existence and practices.

The Blevinses do not dispute the factual basis for Hillwood’s argument. Indeed, they concede that Jerry “saw no need to record and file the deed with the HOCOA as dictated by HOCOA’s governing documents.” Blevinses’ brief, at 12 (emphasis added). The Blevinses’ entire response to Hillwood’s jurisdictional challenge is found in their reply brief, as follows:

“[I]t is indeed amusing that it was [Hill-wood] who first raised the issue of standing as it relates to [Jerry], and argued that [Jerry] had no right to complain about [Hillwood’s] misconduct, or to even bring this action, because [Jerry] had not technically complied with HOCOA’s governing documents with respect to his ownership interest in Suite 200-3. Now that the Blevinses have established [Hillwood’s] non-compliance with HOCOA’s governing documents as it pertains to the election of the ‘Board,’ [Hillwood] cartoonishly argue[s] that despite this non-compliance the ‘Board’ was lawful. [Hillwood] clearly want[s] to have [its] proverbial cake and eat it too.
“In short, [Hillwood] cast the first stone about standing and compliance with HOCOA’s governing documents and now that the stone has boomeranged and landed square on their forehead, they want to conveniently disregard the governing documents.”

Reply brief, at 11-12.

This Court has often said that it is “ ‘ “duty bound to notice ex mero motu the absence of subject-matter jurisdiction.” ’ ” Riley v. Hughes, 17 So.3d 643, 648 (Ala.2009) (emphasis added) (quoting Baldwin County v. Bay Minette, 854 So.2d 42, 45 (Ala.2003), quoting in turn Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 945 n. 2 (Ala.1994)). However, just because the Court is duty bound to notice the absence of subject-matter jurisdiction, it does not follow that it is so bound to construct theories and search the record for facts to support the existence of jurisdiction for plaintiffs who choose to stand mute in the face of a serious jurisdictional challenge. On the contrary,

“when the parties have not provided sufficient legal or factual justification for this Court’s jurisdiction, this Court is not obligated to embark on its own expedition beyond the parties’ arguments in pursuit of a reason to exercise jurisdiction. The burden of establishing the existence of subject-matter jurisdiction falls on the party invoking that jurisdiction. See, e.g., Ex parte HealthSouth Corp., 974 So.2d 288 (Ala.2007) (setting forth the plaintiffs burden of demonstrating standing to bring an action, an issue of subject-matter jurisdiction); ... Ex parte Ray-El, 911 So.2d 1100, 1104 (Ala.Crim.App.2004) (placing the burden to ‘ “justify the jurisdiction of this court” ’ on the person bringing a habeas petition as a ‘next friend’ (quoting Whitmore v. Arkansas, 495 U.S. 149, 164, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990))); cf. Bush v. Laggo Props., L.L.C., 784 So.2d 1063, 1065 (Ala.Civ.App.2000) (‘Once a party challenges the trial court’s jurisdiction, pursuant to Rule 12(b)(1), [Ala. R. Civ. P.,] the burden of establishing jurisdiction is on the plaintiff.’ (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507 (5th Cir.1980))).”

Crutcher v. Williams, 12 So.3d 631, 635-36 (Ala.2008) (some emphasis added).

Essentially, the Blevinses do not dispute Hillwood’s contention that Jerry lacks standing to make the claims asserted in this action. Instead, the Blevinses merely characterize the contention as “amusing” and suggest no legal theory on which standing might be based. It is not this Court’s function to “embark on its own expedition,” Crutcher, 12 So.3d at 635, in search of such a basis. Consequently, we hold that the Blevinses have not carried their burden of establishing subject-matter jurisdiction. This action, having begun at the instance of someone without standing, cannot now be maintained by someone with standing. Cadle Co., 4 So.3d at 463.

III. Conclusion

Because the trial court never acquired subject-matter jurisdiction over this dispute, its summary judgment was void and is hereby vacated. Also, because a void judgment will not support an appeal, Gallagher Bassett Servs., Inc. v. Phillips, 991 So.2d 697, 701 (Ala.2008), this appeal and the action from which it arises, must be, and are, hereby dismissed for lack of subject-matter jurisdiction.

JUDGMENT VACATED; APPEAL DISMISSED; AND CASE DISMISSED.

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

PARKER, J., recuses himself.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge. BRYAN, Judge,

license: Public Domain

text:
    Nollie DEES et al. v. Linda COAKER et al.
    2080135.
    Court of Civil Appeals of Alabama.
    July 17, 2009.
    Certiorari Denied June 18, 2010 Alabama Supreme Court 1081451.

      Martin R. Pearson of Turner, Onder-donk, Kimbrough, Howell, Huggins & Bradley, PA, Chatom; and Carl Johnson and Samantha K. Smith of Bishop, Colvin, Johnson & Kent, LLC, Birmingham, for appellant.
    J. Cecil Gardner and Allison Kahalley of The Gardner Firm, P.C., Mobile; and Sam Heldman of The Gardner Firm, P.C., Washington, D.C., for appellees.
   THOMPSON, Presiding Judge.

Nollie Dees, Elaine Beech, Fred Thomas, Clatis Becton, and Kesler Weaver, Sr., all of whom are members of the Washington County Board of Education (“the Board”), and Tim Savage, who serves as the Superintendent of Education in Washington County (collectively, “the defendants”), appeal from the Washington Circuit Court’s judgment in favor of Linda Coaker, Nelson Thompson, Leverne Thompson, and Jean Guys, all of whom are employees of the Board (collectively, “the plaintiffs”). For the reasons stated herein, we affirm the trial court’s judgment in part, vacate it in part, and remand the cause.

The Board employs several classifications of employees, including, among others, teachers, school secretaries, and a category of employees that it classifies as “support personnel.” The latter category of employees includes teachers’ aides, bus drivers, janitorial workers, computer technicians, and computer aides. The plaintiffs are all categorized as support personnel by the Board. For most of its employment categories, the Board has adopted a salary structure that includes a schedule with incremental salary increases, or steps, based on employment longevity. The Board has not adopted such a salary system for its support personnel. Instead, the Board has prepared a single-page document that lists all the types of support-personnel jobs and provides a single salary amount for each job without any steps in the salary schedule. Thus, for example, all bus drivers are paid the same amount, regardless of any differences in employment length, driving record, driving ability, or other characteristics.

On November 17, 2007, the plaintiffs filed an action against the defendants. The plaintiffs named the defendants in their official capacities only. The plaintiffs alleged that the fact that the Board did not compensate them according to a salary schedule that included steps based on their length of employment violated Alabama law, which, they contended, requires local boards of education to implement for each classification of its employees a salary schedule that includes steps based on length of service. The plaintiffs sought a writ of mandamus directing the defendants to “establish and maintain a proper salary schedule which includes step increases in compensation based upon length of service,” to declare that the defendants’ failure to have established such a salary schedule violated Alabama law, and to enjoin the defendants to establish and maintain such a salary schedule.

On April 21, 2008, the plaintiffs and the defendants filed cross-motions for a summary judgment. In support of their motion, the plaintiffs argued that the salary system in place for support personnel did not comply with § 16 — 22—10(f), Ala.Code 1975, which provides that “[e]ach city and county board of education shall establish and maintain a written salary schedule for each class and type of employee.” They argued that a “schedule” is a “list, table, or matrix that includes more than one entry” and that, as a result, the statutory mandate to provide a “salary schedule” for “each class and type of employee” required more than just a single entry as to the salary for each of the support-personnel jobs. That the legislature intended a mul-ti-entry list of salaries for each job was further evidenced, the plaintiffs argued, by the mandate found in § 16-22-13.5(a)(2) that, in providing for a 7% pay increase for education employees for the 2007-2008 fiscal year, “[ejach governing body or authority shall establish and maintain a salary schedule for each class and type of employee and each step of each salary schedule shall be increased to reflect” that pay increase. We note that that same provision is also set forth in §§ 16-22-13 to -13.4, each of which provides a pay increase for education employees for different fiscal years. The plaintiffs also contended that the defendants’ determination to provide a salary schedule with steps based on longevity for some employees while denying the same to support personnel was arbitrary.

The defendants, in support of their summary-judgment motion, contended that the statutes the plaintiffs referenced did not require them to create the type of salary schedule the plaintiffs sought. They argued that, although statutes providing legislatively mandated pay increases provided that certificated employees, such as teachers, were to be placed on salary schedules “according to degree earned and length of public education experience,” § 16-22-13.5(a)(1), there was no such requirement for noncertificated employees such as support personnel. The defendants argued that such legislative silence with regard to longevity pay for noncertificated employees demonstrated the legislature’s intent not to require longevity pay for those employees. With regard to the plaintiffs’ reliance on the reference in § 16-22-13.5(a)(2) to “each step of each salary schedule” for noncertificated employees, the defendants argued that that reference represented, “[a]t most, ... recognition that salary schedules can contain more than one step,” not that such steps were required in establishing salary schedules for support personnel.

On September 12, 2008, following a hearing on the cross-motions for a summary judgment, the trial court entered an order granting the plaintiffs’ motion and denying the defendants’ motion. In pertinent part, the order read:

“1. Code of Alabama Section 16-22-10(f), 1975, provides that ‘each ... county board of education shall establish and maintain a written schedule for each class and type of employee.’ “2. The Defendants have defined ‘salary schedule’ to be a document that includes steps for longevity for certain support personnel, but as a written document with one salary amount and no longevity steps for others.
“3. The Defendants are hereby es-topped from using a different definition of ‘salary schedule’ for different jobs within the general category of support personnel.
“4. The Defendants must apply the same definition to all support personnel, and therefore establish a step system for all.
“Counsel shall provide the court with proposed orders in accordance with these findings which are necessary for the implementation of the court’s order.”

On October 3, 2008, the trial court entered a final judgment that read:

“The Court having found by separate Order, dated September 12, 2008, that the salary schedule with no step system used by the Washington County Board of Education does not comply with the requirements of Code of Alabama § 16-22 — 10(f), it is hereby further ordered as follows:
“1. The Defendants ... shall establish and maintain for all employees a salary schedule that includes a step system which provides for increases in salary based upon the employee’s length of service, specifically for the following job classifications within the general category of support/classified personnel:
“(a) Teacher Aide;
“(b) Bus Driver;
“(c) Teacher Aide/Bus Driver (Dual Position);
“(d) Vocational Technical Bus Driver;
“(e) Maids and Janitors (Custodians);
“(f) Maids and Janitors/Bus Drivers (Dual Positions);
“(g) Computer Technicians;
“(h) Computer Aide; and,
“(i) Any job classification which does not currently exist, but which may be created in the future and which is not a certified position!.]
“2. Prior to January 2009, the Board[] shall meet and confer with the Washington County Education Association, the local employees’ professional organization, as required by Code of Alabama § 16-1-30, for the purpose of establishing and implementing salary schedules for the job classifications listed in Paragraph 1 herein; and,
“3. The Board[] shall submit to the Court, no later than March 1, 2009, written salary schedules for the job classifications listed in Paragraph 1 herein for the Court’s review to ensure compliance with the Orders of this Court and implementation of the salary schedules, to be effective for the next employment contract year.”

The defendants filed a timely appeal to the supreme court. That court determined that the appeal fell within this court’s appellate jurisdiction and, accordingly, transferred the appeal to this court.

The parties do not dispute the facts relevant to this appeal. “It is well established that this Court reviews a summary judgment de novo.... Moreover, ‘[wjhere the facts are not in dispute and we are presented with a pure question of law, as here, this Court’s review is de novo.’ ” Ex parte Hoover, Inc., 956 So.2d 1149, 1152-53 (Ala.2006) (quoting Christian v. Murray, 915 So.2d 28, 25 (Ala.2005)).

On appeal, the defendants make three primary contentions. They contend that the trial court’s order that they were to establish salary schedules for support personnel that included step raises for longevity was improperly based on the equitable defense of estoppel. They also contend that Alabama law does not require the implementation of the salary schedules mandated by the trial court. Finally, they contend that the plaintiffs’ action was barred by the doctrine of sovereign immunity. We address each of those contentions in turn.

The defendants argue that the trial court erred when, in its order of September 12, 2008, granting the plaintiffs’ summary-judgment motion and denying their summary-judgment motion, the trial court held that the defendants were “estopped” from applying different definitions of “salary schedule” to different categories of employees. They argue that the plaintiffs never pleaded estoppel as a basis on which to obtain the relief they sought. Moreover, they argue, even if the plaintiffs had pleaded estoppel, the plaintiffs were not entitled to relief on that basis because estoppel is an affirmative defense, not a cause of action, and because there was no evidence indicating that the plaintiffs relied to their detriment on a representation by the defendants, a prerequisite to the application of estoppel.

In its September 12, 2008, order, the trial court did not clearly articulate its basis for granting the plaintiffs’ summary-judgment motion and for denying the defendants’ summary-judgment motion. Although the tidal court used the word “estopped” when determining that the defendants would, in the future, be required to apply a salary structure that included steps based on longevity to all of its employees, it is not clear that the trial court was actually invoking the doctrine of equitable estoppel in resolving the case. The trial court’s order can also be interpreted as including a finding that the current salary structure put in place by the defendants for support personnel ran afoul of Alabama statutory law.

When a trial court’s judgment is ambiguous, this court, in resolving the ambiguity, may look to other documents in the record. See Reeder v. Reeder, 356 So.2d 202, 204 (Ala.Civ.App.1978) (“Where a judgment or decree is so obscure as to not clearly express the exact determination of the court, reference may be had to pleadings and other proceedings to which it refers, and it should be interpreted in light of the pleadings and the entire record.”). See also Ex parte Hidden Cove Outdoor Resort, Inc., 758 So.2d 521, 522-23 (Ala.1999) (resolving ambiguity in judgment by reference to later order from the trial court). In its October 3, 2008, final judgment, the trial court referred to its September 12, 2008, order and expressly noted that, in that order, it had determined that the salary structure of which the plaintiffs complained violated Alabama statutory law. Thus, to the extent that the September 12, 2008, order was ambiguous in its expression of the basis for its conclusion, the final judgment resolves that ambiguity in favor of a determination that the salary structure utilized by the defendants for support personnel violated Alabama statutory law, not that the doctrine of equitable estoppel compelled the trial court’s judgment.

As to the second issue, whether the defendants’ salary structure for support personnel violates Alabama statutory law, the defendants contend that the trial court erred when it determined that they were required to establish a salary schedule for each type of employee that included salary steps based on length of service. They point out that the Random House Dictionary defines the term “schedule” as “a written or printed statement of details, often in classified or tabular form, especially one forming an appendix or explanatory addition to another document,” and they imply that their current salary structure for support personnel meets that definition. The defendants also contend that the statutory requirement that certain legislatively mandated pay increases for support personnel contained in §§ 16-22-13 to -13.5 be applied to “each step” in the employees’ salary schedule does not require that such salary schedules actually include steps. Instead, they argue, the statutory language referencing steps “reflects a legislative assumption that takes into account the possibility that boards of education could have more than a single step in their salary schedules,” not that multiple steps were mandated by the legislature. The defendants also contend that, when §§ 16-22-13 to -13.5 are considered as a whole, “it is readily apparent that the Legislature has been well able and accustomed to imposing far more detailed salary schedule requirements than those that apply to plaintiffs when it is inclined to do so.” They argue that, in light of the fact that those statutes provide for salary schedules for teachers that include steps based on longevity, “legislative silence on the matter of longevity pay for support workers cannot be deemed to have been accidental” and that “the conspicuous omission of ... criteria [such as years of public education experience] with respect to support employees compels the conclusion that the Legislature consciously declined to mandate the same kind of salary schedule (and pay increase) criteria for support personnel” as it did for teachers.

Our supreme court has explained that “[t]he cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute.” Ex parte State Dep’t of Revenue, 683 So.2d 980, 983 (Ala.1996). Moreover, “ ‘the meaning of statutory language depends on context,’ and ..., as a result, statutes must be read as whole in order to ascertain the meaning and intent of each component.” Ex parte Master Boat Builders, Inc., 779 So.2d 192, 196 (Ala.2000) (quoting Ex parte Jackson, 614 So.2d 405, 406 (Ala.1993)).

Our review of the statutory provisions at issue, particularly §§ 16-22-13 to -13.5, leads us to conclude that the salary schedules that the legislature has mandated for support personnel must include multiple steps. As previously noted, subsection (a)(2) of each of those statutes provides that each local board of education “shall establish and maintain a salary schedule for each class and type of employee and each step of each salary schedule shall be increased to reflect” the particular percentage pay increase mandated by each statute. Although the word “schedule” is not defined in the statutes, the language employed in the statutes indicates a legislative intention that the required schedules contain steps. We reach this conclusion because the language of the statutes reflects that it is “each step ” of each salary schedule for support personnel to which the mandated pay increase is to be applied. Under the plain meaning of the language of the statutes, an employee whose salary schedule does not include steps would not be entitled to the pay increase provided by the statute, because it is the steps within the employee’s salary schedule to which the mandated salary increases are to be applied. Simply put, the context of the statutes, and, particularly, the structure of the language they employ, requires the word “schedule” to mean more than what the defendants have provided for the plaintiffs in this case, i.e., more than a sheet of paper with a listing of jobs and a single salary amount listed next to each job. Instead, the statutes require that, for each job, the defendants must provide a schedule that includes multiple salary steps.

Even so, none of the statutes at issue in this case provide a basis for the trial court’s determination that the steps mandated for the salary schedules for support personnel must be based on the employee’s length of employment. Indeed, the statutes are entirely silent as to the criteria on which the steps are to be based; this silence is telling when one considers that the legislature has set forth in explicit detail the criteria to be applied to the steps contained in teachers’ salary schedules. Cf. Duncan v. Walker, 533 U.S. 167, 173, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (“It is well settled that ‘ “[wjhere Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” ’ ” (quoting Bates v. United States, 522 U.S. 23, 29-30, 118 S.Ct. 285, 139 L.Ed.2d 215 (1997), quoting in turn Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983))). A requirement that the steps be based on longevity is not fairly inferable from the text of the statutes. Instead, it seems clear to us that the legislature vested local boards of education with the discretion to determine for themselves the criteria on which the steps contained in the salary schedules they are mandated to establish would be based. For the reasons discussed below, the trial court’s attempt to control the defendants’ discretion in this regard is barred by the defendants’ entitlement to sovereign immunity.

As previously noted, the defendants’ final contention is that they are completely immune from the plaintiffs’ claims based on the doctrine of sovereign immunity enshrined in Article I, § 14, Alabama Constitution 1901. Discussing that doctrine at length, our supreme court recently wrote:

“Section 14 provides generally that the State of Alabama is immune from suit: ‘[T]he State of Alabama shall never be made a defendant in any court of law or equity.’ This constitutional provision ‘has been described as a “nearly impregnable” and “almost invincible” “wall” that provides the State an unwaivable, absolute immunity from suit in any court.’ Ex parte Town of Lowndesboro, 950 So.2d 1203, 1206 (Ala.2006). Section 14 ‘specifically prohibits the State from being made a party defendant in any suit at law or in equity.’ Hutchinson v. Board of Trs. of Univ. of Alabama, 288 Ala. 20, 23, 256 So.2d 281, 283 (1971). Additionally, under § 14, State agencies are ‘absolutely immune from suit.’ Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003).
“Not only is the State immune from suit under § 14, but ‘[t]he State cannot be sued indirectly by suing an officer in his or her official capacity....’ Lyons, 858 So.2d at 261. ‘Section 14 prohibits actions against state officers in their official capacities when those actions are, in effect, actions against the State.’ Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004). To determine whether an action against a State officer is, in fact, one against the State, this Court considers
‘“whether “a result favorable to the plaintiff would directly affect a contract or property right of the State,” Mitchell [v. Davis, 598 So.2d 801, 806 (Ala.1992) ], whether the defendant is simply a “conduit” through which the plaintiff seeks recovery of damages from the State, Barnes v. Dale, 580 So.2d 770, 784 (Ala.1988), and whether “a judgment against the officer would directly affect the financial status of the State treasury,” Lyons [v. River Road Constr., Inc.], 858 So.2d [257] at 261 [ (Ala.2003) ].’
“Haley, 885 So.2d at 788. Additionally, ‘[i]n determining whether an action against á state officer is barred by § 14, the Court considers the nature of the suit or the relief demanded, not the character of the office of the person against whom the suit is brought.’ Ex parte Carter, 395 So.2d 65, 67-68 (Ala.1980).
“The immunity afforded State officers sued in their official capacities, however, is not unlimited:
“‘[Section 14] immunity from suit does not extend, in all instances, to officers of the State acting in their official capacity. Unzicker v. State, 346 So.2d 931 (Ala.1977). In limited circumstances the writ of mandamus will lie to require action of state officials. This is true where discretion is exhausted and that which remains to be done is a ministerial act. See Hardin v. Fullilove Excavating Co., Inc., 353 So.2d 779 (Ala.1977); Tennessee & Coosa R.R. Co. v. Moore, 36 Ala. 371 (1860). Action may be enjoined if illegal, fraudulent, unauthorized, done in bad faith or under a mistaken interpretation of law. Wallace v. Board of Education of Montgomery Co., 280 Ala. 635, 197 So.2d 428 (1967). If judgment or discretion is abused, and exercised in an arbitrary or capricious manner, mandamus will lie to compel a proper exercise thereof. The writ will not lie to direct the manner of exercising discretion and neither will it lie to compel the performance of a duty in a certain manner where the performance of that duty rests upon an ascertainment of facts, or the existence of conditions, to be determined by an officer in his judgment or discretion. See Barnes v. State, 274 Ala. 705, 151 So.2d 619 (1963).’ .
“McDowell-Purcell, Inc. v. Bass, 370 So.2d 942, 944 (Ala.1979).
“Moreover, certain causes of action are not barred by § 14:
“ ‘ “There are four general categories of actions which in Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971), we stated do not come within the prohibition of § 14: (1) actions brought to compel State officials to perform their legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; and (4) actions brought under the Declaratory Judgments Act ... seeking construction of a statute and its application in a given situation. 287 Ala. at 229-230, 250 So.2d 677. Other actions which are not prohibited by § 14 are: (5) valid inverse condemnation actions brought against State officials in their representative capacity; and (6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority or in a mistaken interpretation of law. Wallace v. Board of Education of Montgomery County, ... 280 Ala. [635] at 639, 197 So.2d 428 [ (1967) ]; Unzicker v. State, 346 So.2d 931, 933 (Ala.1977); Engelhardt v. Jenkins, 273 Ala. 352, 141 So.2d 193 (1962).” ’
“Drummond Co. v. Alabama Dep’t of Transp., 937 So.2d 56, 58 (Ala.2006) (quoting Carter, 395 So.2d at 68) (emphasis omitted). These actions are sometimes referred to as ‘exceptions’ to § 14; however, in actuality these actions are simply not considered to be actions ‘ “against the State” for § 14 purposes.’ Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002). This Court has qualified those ‘exceptions,’ noting that ‘ “[a]n action is one against the [S]tate when a favorable result for the plaintiff would directly affect a contract or property right of the State, or would result in the plaintiffs recovery of money from the [S]tate.” ’ Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 873 (Ala.2004) (quoting Shoals Cmty. Coll. v. Colagross, 674 So.2d 1311, 1314 (Ala.Civ.App.1995)) (emphasis added in Jones).”

Alabama Dep’t of Transp. v. Harbert Int’l, Inc., 990 So.2d 831, 839-40 (Ala.2008).

Although there had been indications to the contrary in earlier eases (see, e.g., Belcher v. Jefferson County Bd. of Educ., 474 So.2d 1063, 1065-66 (Ala.1985)), our supreme court made clear earlier this year, in Ex parte Hale County Board of Education, 14 So.3d 844, 848 (Ala.2009), that because county and city school boards are agencies of the State, not of the local government units they serve, they are entitled to the same absolute immunity as other agencies of the State. In Ex parte Hale County Board of Education, the court wrote:

“[W]e now reassert the absolute constitutional immunity of county boards of education.
“ ‘ “County boards of education are not agencies of the counties, but local agencies of the state, charged by the legislature with the task of supervising public education within the counties.” ’ Board of Sch. Comm’rs of Mobile County [v. Architects Group, Inc.], 752 So.2d [489,] at 491 [ (Ala.1999) ] (quoting Hutt [v. Etowah County Bd. of Educ.], 454 So.2d [973,] at 974 [ (Ala.1984) ]). ‘Under Ala. Const. of 1901, § 14, the State of Alabama has absolute immunity from lawsuits. This absolute immunity extends to arms or agencies of the state.’ Ex parte Tuscaloosa County, 796 So.2d 1100, 1103 (Ala.2000).
“ ‘For purposes of § 14 immunity, county boards of education are considered agencies of the State. Louviere v. Mobile County Bd. of Educ., 670 So.2d 873, 877 (Ala.1995) (“County boards of education, as local agencies of the State, enjoy [§ 14] immunity.”). Thus, this Court has held that county boards of education are immune from tort actions. See Brown v. Covington County Bd. of Educ., 524 So.2d 623, 625 (Ala.1988); Hutt v. Etowah County Bd. of Educ., 454 So.2d 973, 974 (Ala.1984).’
“Ex parte Jackson County Bd. of Educ., 4 So.3d 1099, 1102-03 (Ala.2008).
“Because county boards of education are local agencies of the State, they are clothed in constitutional immunity from suit....”

Ex parte Hale County Bd. of Educ., 14 So.3d at 848 (emphasis added).

As set forth in Alabama Department of Transportation, supra, because the Board is entitled to sovereign immunity, there are only a limited number of bases on which its officials may be sued in their official capacities. Those bases include, among others, actions to compel the officials to perform their legal duties and actions seeking construction of a statute and its application in a given situation. The plaintiffs’ complaint indicates that them action against the defendants fits, at least to some extent, within both of those categories of actions against state officials. Specifically, they requested a declaration that the defendants were violating Alabama statutory law by failing to create separate salary schedules for each job classification and by failing to include salary steps in each salary schedule. They also requested that the trial court, by mandamus, require the defendants to perform what the plaintiffs asserted was the defendants’ legal duty to establish and maintain such salary schedules. Neither of those requests by the plaintiffs constitutes an action against the State for purposes of the sovereign-immunity bar of § 14. See House v. Jefferson State Cmty. Coll., 907 So.2d 424, 427-28 (Ala.2005); Vaughan v. Sibley, 709 So.2d 482, 485-87 (Ala.Civ.App.1997); and Breazeale v. Board of Trustees of the Univ. of South Alabama, 575 So.2d 1126, 1127-28 (Ala.Civ.App.1991), overruled on other grounds by Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867 (Ala.2004). Furthermore, as we held above, the trial court properly applied §§ 16-22-13 to -13.5 when it provided relief to the plaintiffs in the form of its injunction requiring the defendants to develop separate salary schedules for each of its categories of support personnel, with each schedule to include multiple steps.

However, the plaintiffs’ action strayed into the realm of the sovereign-immunity bar of § 14 by seeking a writ of mandamus directing the defendants to base the steps within each salary schedule on length of employment when, as noted above, Alabama law leaves to the discretion of local boards of education the basis for such salary steps. Indeed, we can envision a number of different and legitimate bases for salary steps that do not take account of an employee’s length of service. Because “ ‘[t]he writ [of mandamus] will not lie to direct the manner of exercising discretion’ ” and because it will not “ ‘lie to compel the performance of a duty in a certain manner where the performance of that duty rests upon an ascertainment of facts, or the existence of conditions, to be determined by an officer in his judgment or discretion,’ ” Alabama Dep’t of Transp., 990 So.2d at 840 (quoting McDowell-Purcell, Inc. v. Bass, 370 So.2d 942, 944 (Ala.1979)), the plaintiffs’ action, to the extent it seeks to compel the defendants to perform any task other than what is required of them by law, i.e., to create salary schedules that include steps, is barred by sovereign immunity. See also Ex parte Alabama State Bd. of Educ., 810 So.2d 773, 776 (Ala.2001) (action to require State Board of Education to exercise discretion in a particular manner barred by sovereign immunity). Simply put, although the trial court correctly held that state law requires the defendants to create a salary schedule with steps for each support employee, the defendants retain, under state law, the discretion to determine the criteria on which the steps are to be based. As a result, that portion of the trial court’s final judgment requiring the defendants to base the steps in the salary schedules they were ordered to establish on length of employment is due to be vacated as improperly controlling the exercise of the defendants’ discretion and thereby violating their immunity from suit under § 14.

For the foregoing reasons, we affirm that portion of the trial court’s judgment holding that Alabama law requires the defendants to create separate salary schedules, each including multiple salary steps, for each category of support personnel that the Board employs and compelling the defendants to establish and maintain such salary schedules. We vacate as beyond the trial court’s jurisdiction that portion of the judgment setting forth the criteria on which the mandated salary steps are to be based, and we remand the cause.

AFFIRMED IN PART; JUDGMENT VACATED IN PART; AND REMANDED.

PITTMAN and THOMAS, JJ„ concur.

BRYAN, J., concurs specially.

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

BRYAN, Judge,

concurring specially.

I concur in the main opinion. I agree that the trial court erred in requiring that the salary steps at issue in this case be based on an employee’s length of service. I write specially to note that nothing prevents the defendants from basing the salary steps on an employee’s length of service, should the defendants choose to do so.

      . By naming the defendants in their official capacities and not in their individual capacities, the plaintiffs’ action was against the positions that the defendants held, not against the defendants personally. See Rodgers v. Hopper, 768 So.2d 963, 968 n. 2 (Ala.2000) ("Rodgers sued Hopper and DeLoach in their official capacities; therefore, this lawsuit was, in effect, against their positions rather than against them personally.”).

      . On April 16, 2008, the plaintiffs filed a motion for certification of a class identified as "[a]Il classified/support employees of the Washington County Board of Education who are compensated according to an annual salary, which does not include step increases in salary, based on the employee’s length of service.” In their motion, the plaintiffs asserted that all the requirements for the certification of a class under Rule 23, Ala. R. Civ. P., were met. However, the plaintiffs did not amend their complaint to assert relief on behalf of a class. The trial court never ruled on the plaintiffs’ motion for class certification before it entered a final judgment. By the entry of the final judgment, which terminated the action in favor of the plaintiffs, the trial court implicitly denied the plaintiffs’ motion. See Williams v. Williams, 905 So.2d 820, 825 n. 4 (Ala.Civ.App.2004); and Jim Walter Res., Inc. v. Bentley, 560 So.2d 1072, 1073 (Ala.Civ.App.1990).
      The plaintiffs do not contend in this appeal that the trial court's implicit denial of their class-certification motion was error. Indeed, following the entry of the final judgment, the parties purported to file a joint motion to withdraw the class-certification motion on the basis that the relief afforded by the final judgment made any reason to seek relief on behalf of a class moot. The trial court never ruled on that purported motion.

      . An earlier reference in the trial court’s order indicated that, by its use of the term "Board,” it was referring to the defendants in the capacities in which the plaintiffs had sued them, i.e., in their official capacities.

      . See note 3, supra,

      . The defendants apparently obtained this definition from an Internet resource that could, on the date this opinion was released, be accessed at http://dictionary.reference.com.


author: THOMPSON, Presiding Judge.

text:
    M.H. and D.H. v. JER. W. and Jes. W.
    2080693.
    Court of Civil Appeals of Alabama.
    April 16, 2010.
    Certiorari Denied June 18, 2010 Alabama Supreme Court 1091060.

      Cheryl Baswell-Guthrie, Huntsville, for appellants.
    Lindsey Mussleman Davis of Holt, Mus-sleman, Kelley & Morgan, Attorneys at Law, Florence, for appellees.
   On Application for Rehearing

THOMPSON, Presiding Judge.

The opinion of January 15, 2010, is withdrawn, and the following is substituted therefor.

M.H. and D.H. (“the maternal grandparents”) appeal from a judgment of the Limestone Juvenile Court modifying custody of T.W. (“the child”). In the modification judgment, the juvenile court found the child to be dependent while in the custody of the maternal grandparents, and the maternal grandparents’ custody was terminated.

In the maternal grandparents’ application for rehearing, they contend that their due-process rights were violated to such an extent as to render the trial court’s judgment void. Specifically, they argue that they had no notice on the issue of dependency. We note that, in their post-judgment motion, the maternal grandparents argued that they were not provided notice that dependency was to be an issue in what they believed was a custody-modification case and that, therefore, they had not been prepared to litigate that issue.

“As a nullity, a void judgment has no effect and is subject to attack at any time.” Ex parte Full Circle Distribution, L.L.C., 883 So.2d 638, 643 (Ala.2003). A void judgment will not support an appeal, Hayes v. Hayes, 16 So.3d 117, 120 (Ala.Civ.App.2009); thus, if the maternal grandparents are correct, this court does not have subject-matter jurisdiction of this case. We note that lack of subject-matter jurisdiction can be raised at any time by the parties or by the court ex mero motu. Thompson v. Wachovia Bank, Nat’l Ass’n, 39 So.3d 1153, 1161 (Ala.2009).

The procedural history of this case is as follows. Jer. W. (“the father”) and Jes. W. (“the mother”) (together, “the parents”) married, and the child was born in June 2002. The parents agreed to give the maternal grandparents temporary custody of the child while the mother was in therapy for anger management and the father was being treated for substance abuse. Pursuant to that agreement, the Lauder-dale Juvenile Court entered a judgment in October 2003 awarding the maternal grandparents custody of the child. After the entry of that judgment, the mother lived with the maternal grandparents and the child. The mother claims that she was the child’s primary caregiver even after the entry of the 2003 judgment.

In June 2007, the parents filed a petition in the Lauderdale Juvenile Court seeking custody of the child. The cause was transferred from the Lauderdale Juvenile Court to the Limestone Juvenile Court (hereinafter “the juvenile court”) because the parties had moved since the entry of the initial 2003 judgment. After a number of continuances, the juvenile court held a hearing on the parents’ request for modification on March 9, 2009.

The parents’ modification petition did not contain an allegation that the child was dependent while in the maternal grandparents’ custody. At the close of the hearing, the juvenile court announced from the bench that it found that it was not yet appropriate to return custody of the child to the parents. Although the issue of dependency was not before the juvenile court, it nonetheless stated that it also found that the child was dependent while in the custody of the maternal grandparents and, therefore, that the maternal grandparents’ custody of the child was terminated.

On March 27, 2009, the juvenile court entered a written judgment repeating the findings it had made at the close of the hearing, stating that the child was dependent, and finding that it “was clear that the [maternal grandparents] crossed a line of wanting to keep the minor child at all costs and that they [were] not willing to work with the parents through the reunification process.”

The juvenile court vested temporary custody of the child with the Limestone County Department of Human Resources (“DHR”), with instructions to DHR to place the child “with any party it deems appropriate.” In the judgment, the juvenile court set a dispositional hearing for April 24, 2009.

On March 23, 2009, before the entry of the March 27 written judgment, the maternal grandparents filed a motion pursuant to Rule 59, Ala. R. Civ. P., to alter, amend, or vacate the “judgment,” arguing, among other things, that, the March 9 hearing had been a dependency hearing and not a trial on the merits to determine who should have custody of the child. The juvenile court denied the Rule 59 motion on March 24, 2009.

On April 15, 2009, with new counsel, the maternal grandparents filed a motion requesting the transcript of the March 9 hearing. The juvenile court set the motion for hearing on April 24, 2009, the same day the dispositional hearing was scheduled. On April 17, the maternal grandparents moved to continue the dispositional hearing. The juvenile court denied their motion on the ground that the March 27, 2009, judgment was a final judgment removing custody of the child from the maternal grandparents and that the time for filing an appeal of that judgment had passed. Therefore, the juvenile court ruled, the maternal grandparents no longer had standing in the action. The disposi-tional hearing was held as scheduled on April 24, 2009, after which custody of the child was awarded to the child’s paternal grandparents.

The maternal grandparents assert that they had no notice that the March 9, 2009, hearing was to be a dependency hearing. They argue that because the requirements for filing a petition alleging dependency as set forth in § 12-15-52, Ala.Code 1975, were not met, the juvenile court lacked subject-matter jurisdiction. Their argument on rehearing is more properly characterized as an assertion that the judgment is void for want of due process of law.

“ ‘A judgment is void only if the court which rendered it [1] lacked jurisdiction of the subject matter, or [2] of the parties, or [3] if it acted in a manner inconsistent with due process.’ ” Neal v. Neal, 856 So.2d 766, 781 (Ala.2002) (quoting Seventh Wonder v. Southbound Records, Inc., 364 So.2d 1173, 1174 (Ala.1978)). See also Smith v. Clark, 468 So.2d 138, 141 (Ala.1985); Cassioppi v. Damico, 536 So.2d 938, 940 (Ala.1988); Pollard v. Etowah County Comm’n, 539 So.2d 225, 228 (Ala.1989); Satterfield v. Winston Indus., Inc., 553 So.2d 61, 64 (Ala.1989); Fisher v. Amaraneni, 565 So.2d 84, 87 (Ala.1990); Hughes v. Cox, 601 So.2d 465, 467-68 (Ala.1992); Greene v. Connelly, 628 So.2d 346, 351 (Ala.1993); and Rule 60(b)(4), Ala. R. Civ. P.

“ ‘[I]t is established by the decisions in this and in Federal jurisdictions that due process of law means notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing.’
“Frahn v. Greyling Realization Corp., 239 Ala. 580, 583, 195 So. 758, 761 (1940) (emphasis added). The rule that a want of due process, so defined, voids a judgment is not redundant with the rule that a want of personal jurisdiction likewise voids a judgment, for a person already effectively made a party to litigation could, on some critical motion or for some critical proceeding within that litigation, be deprived of the ‘notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing,’ required by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, Frahn, supra. See Winhoven v. United States, 201 F.2d 174 (9th Cir.1952), Bass v. Hoagland, 172 F.2d 205 (5th Cir.1949), Cassioppi [v. Damico, 536 So.2d 938 (Ala.1988) ], and Seventh Wonder [v. Southbound Records, Inc.], [364 So.2d 1173 (Ala.1978) ].”

Neal, 856 So.2d at 781-82.

In Frahn v. Greyling Realization Corp., our supreme court noted:

“It was observed in Evans v. Evans, 200 Ala. 329, 76 So. 95 [(1917)], that such are the requirements of due process, being the fundamental conditions universally prescribed in a system of laws established and all state laws, statutory and judicially declared, regulating procedure, evidence and method of trials, which must be consistent with such requirements of the constitutions. Such rule is stated as follows in 6 R.C.L. § 442, p. 446: ‘... In fact one of the most famous and perhaps the most often quoted definition of due process of law is that of Daniel Webster in his argument in the Dartmouth College case (Dartmouth College v. Woodward, 4 Wheat. 518, 4 U.S. (L.Ed.) 629 [(1819)]), in which he declared that by due process of law was meant “a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.” (Ex parte Wall, 107 U.S. 265, 2 S.Ct. 569, 27 U.S. (L.Ed.) 552 [ (1883) ].) Somewhat similar is the statement that it is a rule as old as the law that no one shall be personally bound until he has had his day in court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity (to be heard) wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and can never be upheld where justice is fairly administered. (Galpin v. Page, 18 Wall. 350, 21 U.S. (L.Ed.) 959 [ (1873) ]; Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 U.S. (L.Ed.) 215 [ (1897) ]; Ferry v. Campbell, 110 Iowa 290, 81 N.W. 604, 51 L.R.A. 92 [(1900)]).’ (Parenthesis supplied.)”

239 Ala. 580, 583, 195 So. 758, 761 (1940).

In this case, the parents’ petition for modification did not allege that the child was dependent. Instead, the parents alleged that, since the entry of the original judgment awarding custody of the child to the maternal grandparents, “there ha[d] been a material change of circumstances affecting the best interests and welfare of the minor child necessitating a change in custody.” In the petition, the parents listed the changes in their circumstances, such as the facts that both parents were gainfully employed and the father was able to provide health insurance for the child; that the father had completed a substance-abuse program and had been free of drugs since January 2004; and that the parents were able to provide a wholesome and stable home environment for the child.

The record indicates that, on at least two occasions, the juvenile court stated that the proceedings were for a modification of custody — dependency was not mentioned. At the hearing on the petition, there was no evidence presented indicating that the child was not being well cared for while in the custody of the maternal grandparents. For example, the parents presented no evidence indicating that the child was being abused or neglected, no evidence indicating that the child’s health or well-being were at risk, no evidence indicating that the maternal grandparents had failed or neglected to send the child to school or otherwise see to the child’s education, and no evidence of any other indicia that the child was dependent. See § 12-15-102(8), Ala.Code 1975 (defining a dependent child). Evidence indicating that the maternal grandparents were being manipulative and were “not willing to work with the parents through the reunification process” does not indicate that the child was dependent. Indeed, nothing in the case up until the juvenile court’s pronouncement from the bench that the child was dependent could reasonably have put the maternal grandparents on notice that dependency was an issue, and they cannot be faulted for failing to present any evidence indicating that the child was not dependent while in their care.

The juvenile court’s judgment finding the child to be dependent and removing custody of the child from the maternal grandparents was entered without providing the maternal grandparents notice and an opportunity to be heard on the issue of the child’s dependency. Thus, the judgment was entered in a manner inconsistent with due process. Accordingly, we conclude that the juvenile court’s judgment finding the child dependent while in the custody of the maternal grandparents was entered in a manner that is inconsistent with due process, and, therefore, it is void. A void judgment will not support an appeal. Hayes v. Hayes, 16 So.3d 117, 120 (Ala.Civ.App.2009). Therefore, we dismiss the maternal grandparents’ appeal and instruct the juvenile court to vacate its void judgment of March 27, 2009, finding the child dependent and removing the child from the custody of the maternal grandparents.

APPLICATION GRANTED; OPINION OF JANUARY 15, 2010, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.

PITTMAN, BRYAN, and MOORE, JJ., concur.

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

      . The Lauderdale Juvenile Court’s judgment of October 2003 does not appear in the record on appeal.


author: THOMAS, Judge.

text:
    Stephen Christopher BAKER v. Shawn Michael KENNEDY.
    2080920.
    Court of Civil Appeals of Alabama.
    May 28, 2010.
    Clatus Junkin and Charles E. Harrison of Junkin, Pearson, Harrison & Junkin, LLC, Tuscaloosa, for appellant.
    Charles A. Langley of Holder, Moore, Lawrence & Langley, P.C., Fayette, for appellee.
   On Application for Rehearing

THOMAS, Judge.

The opinion of February 26, 2010, is withdrawn, and the following is substituted therefor.

In October 1999, following a two-year relationship, Shawn Michael Kennedy (“Kennedy”) and Anna Kennedy (“the mother”) married. When the couple married, the mother already had a son, R.K. (“the child”), who was born during a previous relationship with Stephen Christopher Baker (“Baker”). In November 1999, Kennedy and the mother filed a declaration of legitimation in the Fayette County Probate Court, pursuant to § 26-11-2, Ala. Code 1975, alleging that Kennedy was the child’s father; the probate court subsequently issued an order of legitimation. Throughout the course of the marriage, Kennedy maintained a father-son relationship with the child. According to the mother’s testimony, Kennedy maintained a consistent presence in the child’s life by participating in numerous father-son activities such as taking him to Boy Scout functions and taking him to school and extracurricular functions. The mother testified that Kennedy also financially supported the child. In March 2003 Kennedy and the mother had a child together A.K.

On June 10, 2008, the mother filed for a divorce (“the divorce action”). In the couple’s settlement agreement, Kennedy and the mother stated that A.K. was the only child born during the marriage; the settlement agreement does not mention the child. The trial court entered a divorce judgment incorporating the terms of the couple’s settlement agreement. Kennedy filed a motion to set aside the final divorce judgment because the judgment failed to mention the child or to set a visitation schedule. In Kennedy’s postjudgment motion, he requested that the court grant him visitation rights with both the child and A.K. On July 11, 2008, the trial court entered an order dissolving the marriage but setting aside all other aspects of the divorce judgment. The trial court set a final hearing to determine the remaining issues on August 14, 2008.

Following the couple’s divorce, the mother and Baker, the child’s purported biological father, entered into a new relationship and eventually married. On November 21, 2008, Baker filed a motion to intervene in the divorce action, arguing that because he was the child’s biological father he had an interest in the child’s custody. After a hearing, the trial court denied Baker’s motion to intervene on May 26, 2009, stating that Baker “only recently acknowledged and began holding the child out as his child.” Baker filed a timely notice of appeal to this court. See Thrasher v. Bartlett, 424 So.2d 605, 607 (Ala.1982) (holding that an order denying a motion to intervene is an appealable judgment).

“The standard of review applicable in cases involving a denial of a motion to intervene as of right is whether the trial court has acted outside its discretion. See City of Dora v. Beavers, 692 So.2d 808, 810 (Ala.1997). Typically, persons desiring to intervene in a civil action as of right will claim entitlement to intervention under Rule 24(a)(2), Ala. R. Civ. P., which mandates intervention upon timely application if ‘the applicant claims an interest relating to the property or transaction which is the subject of the action’ and is ‘so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.’ Thus, the Alabama Supreme Court has held that under Rule 24(a)(2), the trial court has discretion to determine ‘whether the potential intervenor has demonstrated: (1) that its motion is timely; (2) that it has a sufficient interest relating to the property or transaction; (3) that its ability to protect its interest may, as a practical matter be impaired or impeded; and (4) that its interest is not adequately represented.’ City of Dora, 692 So.2d at 810.”

Black Warrior Riverkeeper, Inc. v. East Walker County Sewer Auth., 979 So.2d 69, 72 (Ala.Civ.App.2007).

Kennedy alleges that he is the child’s presumed father under the former Alabama Uniform Parentage Act, § 26-17-1 et seq., Ala.Code 1975 (“the former act”); section 26-17-5(a), a part of the former act, provided:

“(a) A man is presumed to be the natural father of a child if any of the following apply:
“(3) After the child’s birth, he and the child’s natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with the law although the attempted marriage is or could be declared invalid, and
“a. He has acknowledged his paternity of the child in writing, the writing being filed with the appropriate court or the Office of Vital Statistics; or
“b. With his consent, he is named as the child’s father on the child’s birth certificate; or
“(4) While the child is under the age of majority, he receives the child into his home or otherwise openly holds out the child as his natural child.
“(5) He acknowledges his paternity of the child in a writing filed in accordance with the provisions of the legitimation statute.”

The former act was repealed effective January 1, 2009; the Alabama Uniform Parentage Act (2008), § 26-17-101 et seq., Ala.Code 1975, became effective the same day. See Act No. 2008-376, Ala. Acts 2008. The presumptions of paternity listed in subsection (3), (4), and (5) of former § 26-17-5(a) are substantively the same as the presumptions of paternity listed in § 26-17-204(a)(4), (5), and (6), which is part of the Alabama Uniform Parentage Act (2008).

Kennedy argues that he satisfied the presumption of paternity under subsection (3)b. of former § 26-17-5(a) by being married to the mother and by consenting to have his name placed on the child’s birth certificate. Kennedy also argues that he satisfied the presumption of paternity under subsection (4) of former § 26-17-5(a) by providing financial support to the child, by allowing the child to live in his home, and by openly holding the child out as his' natural child. Kennedy further argues that he satisfied the presumption of paternity under subsection (5) of former § 26-17-5(a) because he filed a declaration of legitimation alleging that he was the child’s father.

We agree that Kennedy’s presumption of paternity arises under subsection (3)b. of former § 26-17-5(a). Kennedy and the mother were married following the child’s birth. The record indicates that Kennedy consented, in part through a legitimation proceeding, to having his name added to the child’s birth certificate. Because Kennedy consented to having his name placed on the child’s birth certificate, thus recognizing him as the father of the child, Kennedy satisfies the presumption set forth under subsection (3) of former § 26-17-5(a).

On appeal, Baker argues that he has the right to intervene in the divorce action under the former act in order to attempt to establish his paternity of the child. He relies on former § 26 — IT—6(b), Ala.Code 1975, which provided that “[a]ny interested party may bring an action at any time for the purpose of determining the existence or non-existence of the father and child relationship presumed under subdivision (4) or (5) ... of Section 26-17-5(a).” However, because Kennedy is a presumed father under former § 26-17-5(a)(3)b., Baker would not have the right to intervene in the divorce action under the former act, provided Kennedy persists in his status as a presumed father. See former § 26-17-6(a) and Ex parte Presse, 554 So.2d 406, 418 (Ala.1989) (“[S]o long as the presumed father persists in maintaining his paternal status, not even the subsequent marriage of the child’s mother to another man can create standing in the other man to challenge the presumed father’s parental relationship.”); see also Hooten v. Hooten, 754 So.2d 634, 635 (Ala.Civ.App.1999) (“Our supreme court has held that no one, including the mother of the child, has standing to challenge a presumed father’s paternity as long as the presumed father persists in claiming paternity of the child.”).

We recognize that the fathers in Ex parte Presse and Hooten were presumed fathers under former § 26-17-5(a)(1) and not former § 26-17-5(a)(3)b. The conclusion in Ex parte Presse that no one could challenge the presumption of paternity arising under former § 26-17-5(a)(1), provided the presumed father persisted in that presumption, arose, in part, from former § 26-17-6(a), which limited those persons who may establish the existence of the father-child relationship presumed under former § 26-17-5(a)(1), (2), or (3) to only the mother, the presumed father himself, and the child. Thus, because former § 26-17-6(a), which has been construed to limit the right to challenge a presumed father’s paternity, applies to the presumption in former § 26-17-5(a)(3), we see no reason not to extend the holdings of Ex parte Presse and its progeny to the presumption of paternity arising under § 26-17-5(a)(3).

Even under the Alabama Uniform Parentage Act (2008), Baker cannot intervene in the divorce action to challenge Kennedy’s presumption of paternity so long as Kennedy persists in his presumption. § 26-17-607(a), Ala.Code 1975. The Alabama Uniform Parentage Act (2008) provides that, “[i]f the presumed father persists in his status as the legal father of a child, neither the mother nor any other individual may maintain an action to disprove paternity.” Id. Therefore, because Kennedy satisfies the presumption of paternity under subsection (4) of § 26-17-204(a), so long as Kennedy persists in his presumption of paternity, Baker has no standing to intervene in the divorce action to challenge Kennedy’s presumption of paternity.

Under either act, Baker, is precluded from bringing an action to challenge Kennedy’s status as the child’s presumed father, so long as Kennedy persists in his status as the child’s presumed father. Thus, we must determine whether Kennedy has persisted in his status as the child’s presumed father.

“In a long line of cases beginning with Ex parte Presse, 554 So.2d 406 (Ala.1989), Alabama appellate courts have held that no one has standing to challenge a presumed father’s parentage ‘so long as the presumed father persists in maintaining his paternal status.’ 554 So.2d at 418 (emphasis added). See B.N.P. v. D.M.P., 896 So.2d 505, 509 (Ala.Civ.App.2004) (stating that a child ‘does not have standing under the [former act] to challenge the presumed father’s paternity so long as [the presumed father] persists in claiming paternity’). See also J.O.J. v. R.R., 895 So.2d 336 (Ala.Civ.App.2004); M.H.E. v. B.E., 864 So.2d 351 (Ala.Civ.App.2002); Hooten v. Hooten, 754 So.2d 634, 635 (Ala.Civ.App.1999); and Ex parte C.A.P., 683 So.2d 1010, 1011 (Ala.1996).”

Swafford v. Norton, 992 So.2d 20, 28 (Ala.Civ.App.2008).

On appeal, Baker argues that Kennedy forfeited his status as the child’s presumed father when he did not acknowledge the child as his own child in the divorce settlement. We disagree. Kennedy testified that, following the parties’ separation, the parties had intended to maintain the same visitation schedule with the child as with A.K. However, Kennedy testified that, following an argument, the mother restricted Kennedy’s visitation with the child. At the hearing on Baker’s motion to intervene, Kennedy testified: “[T]hat’s when I went and contacted [Kennedy’s attorney] to fight for visitation for [the child] to have it official.” The record indicates that on July 9, 2008, Kennedy filed a motion to set aside the divorce judgment, stating in his motion a desire to continue his father-son relationship with the child. In addition, the record reflects that Kennedy has consistently maintained a relationship the child. According to the record, Kennedy not only financially supported the child, but also participated in numerous extracurricular activities with the child throughout the course of the child’s childhood. After hearing the testimony at the hearing on Baker’s motion to intervene, the trial court could have properly concluded that Kennedy persisted in his presumption of paternity. See J.O.J. v. R.R., 895 So.2d 336, 340 (Ala.Civ.App.2004) (requiring a trial court to consider evidence regarding whether a presumed father persisted in his presumption of paternity).

Because Kennedy married the mother and consented to having his name placed on the birth certificate recognizing him as the father of the child, Kennedy satisfied the presumption of paternity set forth in subsection (3)b. of former § 26-17-5(a) and subsection (4) of § 26-17-204(a). Baker thus lacks standing to challenge Kennedy’s presumption of paternity. Former § 26-17-6(a), Ala. Code 1975; § 26-17-607(a), Ala.Code 1975. In addition, the evidence supports the conclusion that Kennedy has consistently maintained a relationship with the child, thus persisting in his presumption of paternity. For the foregoing reasons, we affirm the trial court’s judgment denying Baker’s motion to intervene.

APPLICATION GRANTED; OPINION OF FEBRUARY 26, 2010, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

      . Rule 24(a), Ala. R. Civ. P., provides:
      "Upon timely application, anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”

      . Because we consider Kennedy to have established his presumption of paternity under former § 26-17-5(a)(3)b., we need not consider whether Kennedy established his presumption of paternity under former § 26-17-5(a)(4) or whether Kennedy properly complied with the legitimation statute so as to establish his paternity under former § 26-17-5(a)(5).