author: PITTMAN, Judge. BRYAN, Judge, PITTMAN, Judge. MOORE, Judge,

text:
    HILLCREST, LTD. v. CITY OF MOBILE.
    2090532.
    Court of Civil Appeals of Alabama.
    Nov. 19, 2010.
    Opinion Overruling Rehearing March 25, 2011.
    Certiorari Denied June 24, 2011 Alabama Supreme Court 1100780.

      Bryan G. Duhé, Mobile, for appellant.
    K. Paul Carbo, Jr., of The Atchison Firm, P.C., Mobile, for appellee.
   PITTMAN, Judge.

This appeal, transferred to this court by the Alabama Supreme Court pursuant to § 12-2-7(6), Ala.Code 1975, concerns the res judicata effect of a judgment condemning a portion of a tract of real property upon a subsequent civil action in tort alleging damage to the remainder of the tract.

In 2003, Hillcrest, Ltd. (“the partnership”), sued the City of Mobile (“the City”) and a number of fictitiously named defendants in the Mobile Circuit Court. In its complaint, the partnership alleged that in 1979 it had purchased a tract of land locafr ed at the corner of Hillcrest Road and Girby Road in Mobile; that the City had thereafter approved development of nearby land and that the resulting development had increased the amount of water flowing onto the tract; that the State of Alabama (“the State”), acting by and through the Alabama Department of Transportation, had condemned a portion of the tract in order to widen Hillcrest Road and to permit the installation of a large drainage ditch to carry surface water; and that the eventual installation of the ditch had prevented ingress to and egress from the tract from its Hillcrest Road frontage. The complaint asserted that the City’s having permitted the nearby development had required the construction of the ditch and had resulted in a diminution of the value of the tract, and the partnership asserted claims of trespass, nuisance, and negligence against the City. The City answered the complaint, asserting, among other things, that the partnership had failed to present its claims in a timely manner, that the partnership had failed to file suit in a timely manner, and that the City was not liable for intentional torts (such as nuisance or trespass) of its agents. The partnership later amended its complaint to assert entitlement to in-junctive relief preventing the City “from discharging storm water onto the [tract] at a rate, velocity, and location other than that would exist naturally” and requiring the City “provide appropriate ingress and egress to the [tract] in the form of bridges.”

In August 2009, the City filed a motion for a summary judgment asserting that the partnership’s claims were barred by the doctrine of res judicata because, the City said, the issue of damage to the remainder of the tract from the loss of ingress and egress had been finally determined in the condemnation action; the City also contended that any other claims against the City had been “abandoned” or were without admissible evidentiary support. The City filed in support of its motion the judgment in the condemnation action, the partnership’s answers to interrogatories, and excerpts from the transcript of a deposition given by the partnership’s representative. The partnership filed a response in opposition to the motion, relying upon its amended complaint and the deposition testimony of the City’s municipal engineer. After a hearing, the trial court entered a summary judgment in favor of the City on all the partnership’s claims, prompting the partnership to appeal.

Our standard of review of summary judgments is well settled:

“A motion for summary judgment tests the sufficiency of the evidence. Such a motion is to be granted when the trial court determines that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The moving party bears the burden of negating the existence of a genuine issue of material fact. Furthermore, when a motion for summary judgment is made and supported as provided in Rule 56, [Ala. R. Civ. P.,] the nonmovant may not rest upon mere allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Proof by substantial evidence is required.”

Sizemore v. Owner-Operator Indep. Drivers Ass’n, Inc., 671 So.2d 674, 675 (Ala.Civ.App.1995) (citations omitted).

The record reveals that the tract at issue, as it measured in 1979, was undeveloped land that bordered both Hillcrest Road and Girby Road. When the State planned to widen Hillcrest Road, condemnation proceedings were commenced that resulted in the State’s acquisition of a strip of land taken from the western border of the tract along its Hillcrest Road frontage. It is within that condemned strip that a drainage ditch has been installed that has blocked ingress to and egress from the tract from Hillcrest Road.

To the extent that the partnership has sought a judgment compelling the City to either build bridges over the drainage ditch located within the land taken from the tract by the State or to respond in damages for the taking of the ingress and egress as to the Hillcrest Road frontage, we must agree with the City that the partnership’s claims are barred. Under Alabama law, if there is a partial taking of a tract via eminent domain, “the valuation rule is the difference between the fair market value of the entire property before the taking and the fair market value of the remainder after the taking,” with “fair market value” being “the price the property would bring” when voluntarily offered for sale and purchase “after due consideration of all the elements affecting value.” Ala.Code 1975, §§ 18-1A-I70(b) and 18-1A-172. Specifically, our Supreme Court has held that when property is condemned and the abutting property owner is thereby denied access to a public highway, that circumstance is an element to be considered by the trier of fact “in arriving at just compensation to be awarded the owner of the land.” St. Clair County v. Bukacek, 272 Ala. 323, 330, 131 So.2d 683, 689 (1961). Thus, the jury’s award of $80,000 in damages and compensation in the condemnation action operated as a merger of any claims the partnership might otherwise have asserted by virtue of the loss of access to Hillcrest Road from the tract.

Our conclusion is bolstered by reference to City of Huntsville v. Goodenrath, 13 Ala.App. 579, 68 So. 676 (1915). In Goo-denrath, a municipal board of commissioners determined that improvements to a municipal thoroughfare by a city had caused the value of a parcel of property along that route to have increased by $37.80, notwithstanding that the improvements had raised by 11 inches the sidewalk located between the improved road and the building located on the portion of the parcel of property remaining after the taking; however, the owner of the remainder of the parcel later filed an action alleging that the city should respond in damages for having supposedly “renderfed the owner’s storehouse] more difficult of access and entrance[] and greatly diminish[ed] the value of [that] property before making just compensation to [the owner].” 13 Ala.App. at 581-82, 68 So. at 678 (summary of the arguments). Our predecessor court held that the compensation order, which stemmed from an in rem proceeding, completely precluded the owner’s tort claims; that court’s reasoning is instructive here:

“It has become a fundamental principle regarding judgments that an issue once in fact tried and determined or necessarily involved in the issue that was tried and determined before a court of competent jurisdiction is, until reversed or annulled by direct proceeding, conclusive as to both the law and the fact involved in the issue. To what extent, as to the persons so concluded, depends upon the character of the judgment whether it is one in personam or one in rem. Judgments ‘in personam’ are inter partes and though conclusive even against strangers as to the fact of its rendition and the resultant legal consequences are not binding as to the issues involved (the trial of which resulted in the judgment) except upon parties and their privies; while judgments strictly ‘in rem’ are inter omnes by virtue of the power and control of the state over the res and irrevocably determine its status or title against all persons irrespective of whether they had any other than constructive notice of the litigation or whether they were parties in fact or not.
“This rule as to the conclusiveness of judgments applies generally to all varieties of judgments, decrees, or orders made by courts of competent jurisdiction, in all kinds of judicial proceedings, such as, among others, eminent domain proceedings, attachments, garnishment, foreclosure, partition, tax judgments, adjudications in bankruptcy, etc., and to all kinds of courts or legal tribunals, when acting judicially under authority of law and as to matters within their jurisdiction, and to officers and boards of state or municipal officers so acting and under such conditions or circumstances that their decisions have the force and effect of judgments. And it is not the identity of the cause of action which determines the conclusiveness of a former judgment upon a subsequent suit, but merely the identity of the issue involved in the two proceedings....
“We take it therefore to be the general rule, subject to exceptions, that a judgment in rem is conclusive not only as to the matters actually declared and expressly determined, but also with respect to the grounds or facts upon which such judgment is founded.”

13 Ala.App. at 591-97, 68 So. at 680-82 (emphasis added; citations omitted). Because the commissioners had already found that the owner’s parcel in Gooden-rath had not been damaged by the project necessitating the taking, but in fact that it had been benefited thereby, a second action seeking damages based upon a claimed detriment could not properly proceed to a judgment in favor of the owner.

The partnership in this case, noting the general requirements for the issue-preclusion branch of the doctrine of res judicata that were summarized in Dairyland Insurance Co. v. Jackson, 566 So.2d 723, 725 (Ala.1990) — namely, identity of issues, actual prior litigation, necessity of resolution of the issue in the prior suit, and identity of parties — claims that res judica-ta cannot apply in this case because, it says, identity of the parties and issues is not present. However, we understand the City’s assertion of res judicata to state a basis for claim preclusion rather than mere issue preclusion. Cf. McNeely v. Spry Funeral Home of Athens, Inc., 724 So.2d 534, 537 n. 1 (Ala.Civ.App.1998) (noting potential ambiguity in the unqualified use of the term “res judicata” and suggesting that “res judicata” is most readily identified with claim preclusion). The claim-preclusion branch of the doctrine of res judicata applies when the following four elements are satisfied: “(1) prior judgment rendered by court of competent jurisdiction; (2) prior judgment rendered on the merits; (3) parties to both suits substantially identical; and (4) same cause of action present in both suits.” Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190, 1199 (Ala.1978).

Having identified the proper preclusion doctrine, we next consider whether the partnership’s arguments have any force. Although the partnership asserts that the State was the partnership’s adversary in the condemnation action, whereas the City is the partnership’s adversary in this case, Wheeler states that under Alabama law, the third element of res judica-ta — “identity of the parties” — “does not require complete identity, but only that the party against whom res judicata is asserted was a party before.” 364 So.2d at 1200 (emphasis added; citing Geer Bros., Inc. v. Crump, 349 So.2d 577 (Ala.1977)). Here, the partnership actively participated in the condemnation action and obtained a judgment in the circuit court that was more favorable to its interests than an earlier probate-court judgment had been; thus, the identity-of-the-parties criterion is satisfied. Similarly, the partnership’s interest in obtaining a larger award of damages and compensation in the condemnation action is parallel to its interest in the tort action against the City in seeking damages and injunctive relief for the same claimed wrong: the loss of access to Hillcrest Road from the tract. As the Court of Appeals stated in Goodenrath, conduct of a sovereign in making private property abutting a street more inaccessible “furnishes a right of action therefor to the owner of such property, unless, of course, the damages have previously been ascertained and paid wider condemnation proceedings.” 13 Ala.App. at 589, 68 So. at 680 (emphasis added). Further, under Robinson v. Holley, 549 So.2d 1, 2 (Ala.1989), the partnership’s assertion, in this action, of a demand for injunctive relief not stated in the condemnation action does not destroy the pre-clusive effect of the condemnation judgment as to any theory that the partnership could have asserted respecting damage to its property interests arising from the State’s taking a portion of the tract for the purpose of constructing a widened road and a drainage ditch.

We thus agree with the City that the summary judgment is due to be affirmed with respect to the partnership’s claims arising out of the tract’s having been “landlocked” as to Hillcrest Road. However, we part company with the City to the extent that it asserts that the summary judgment was correct in all respects. As we have noted, the negligence, nuisance, and trespass claims asserted by the partnership stem not only from the denial of access to Hillcrest Road, but also from claimed intrusions of surface water that predate the condemnation action and the subsequent construction of the drainage ditch. Those theories of recovery against the City were not at issue in the condemnation action, nor has the City indicated that assertion of those theories would have been proper as against the State or the City in the earlier action. Although the City claims in its appellate brief that those theories have been “abandoned” by the partnership, it cites only certain pages of the deposition transcripts the City submitted in support of its summary-judgment motion. A review of those pages does not reveal an overt waiver of any claims by the partnership’s representative; rather, if anything, the deponent asserts that the partnership continues to claim “that the [tract] was made into wetlands because of all the water flowing there.” Thus, neither the doctrine of res judicata nor the principle of waiver can sustain the summary judgment as to the theories of recovery asserted against the City with respect to the City’s responsibility for the invasion of the tract by water because of wrongful conduct in allowing development in the vicinity of the tract, and as to those theories we must reverse the summary judgment and remand the cause.

Based upon the foregoing facts and authorities, the summary judgment is affirmed in part and is reversed in part. The cause is remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

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

BRYAN, Judge,

concurring in part and concurring in the result.

I concur in the result in that part of the main opinion addressing the claim-preclusion issue. I concur in all other respects.

On Application for Rehearing

PITTMAN, Judge.

On application for rehearing, the appel-lee City of Mobile posits, and the dissent agrees, that this court has reversed the trial court’s judgment, in part, on a ground not asserted by the appellant, Hillcrest, Ltd. Suffice it to say that after the appellant’s brief had challenged the correctness of the summary judgment in its entirety, particularly arguing that the condemnation action brought by the state did not have any preclusive effect, the City of Mobile’s appellee’s brief sought to defend the trial court’s summary judgment as it applied to the claimed intrusions of surface water between 1979 and the subsequent construction of the drainage ditch on the basis that those claims had been “abandoned.” Although it is, of course, proper for an appellee to seek affirmance of a summary judgment upon any ground that might appear of record “unless due-process constraints require otherwise” (Wheeler v. George, 39 So.3d 1061, 1088 (Ala.2009)), it is likewise proper for an appellate court to determine whether those arguments are valid (and to decide, when appropriate, that they are not, as in this case). Because the opinion on original deliverance is responsive to the issues presented by the parties, the application for rehearing is overruled.

APPLICATION OVERRULED.

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

MOORE, J., dissents, with writing.

MOORE, Judge,

dissenting.

I concurred in this court’s opinion issued in this case on November 19, 2010. In its application for rehearing, the City of Mobile argues that Hillcrest, Ltd., did not raise as an issue on appeal that the trial court erred in entering a summary judgment on Hillcrest’s claim arising from water intrusion onto Hillcrest’s property. I agree. Nowhere in its initial appellate brief to this court did Hillcrest make that argument. Although the opinion on rehearing notes that “the appellant’s brief had challenged the correctness of the summary judgment in its entirety, particularly arguing that the condemnation action brought by the state did not have any preclusive effect,” 76 So.3d at 257, there was no argument addressed specifically to the claim arising from water intrusion. “[W]e cannot create legal arguments for a party based on undelineated general propositions unsupported by authority or argument.” Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992). “An argument not made on appeal is abandoned or waived.” Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1124 n. 8 (Ala.2003). Accordingly, I conclude that the opinion issued by this court on original submission is incorrect insofar as it reverses the summary judgment on Hillcrest’s claim arising from water intrusion onto its property.

Based on the foregoing, I dissent to the overruling of the City of Mobile’s application for rehearing.

      . Under § 11-47-23, Ala.Code 1975, ”[c]laims for damages [against municipalities] growing out of torts shall be presented within six months from the accrual thereof or shall be barred.”

      . In doing so, we express no opinion as to whether the partnership will ultimately be entitled to prevail on those theories of recovery.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge. THOMPSON, Presiding Judge.

license: Public Domain

text:
    Jewel CAMPBELL et al. v. Ethel C. TAYLOR et al.
    2091072.
    Court of Civil Appeals of Alabama.
    Jan. 21, 2011.
    Opinion Overruling Rehearing April 22, 2011.

      Daniel G. Blackburn and Rebecca A. Gaines of Blackburn & Conner, P.C., Bay Minette, for appellants.
    Taylor D. Wilkins, Jr., of Wilkins, Bank-ester, Biles & Wynne, Bay Minette, for appellee Ethel C. Taylor.
    Oliver J. Latour, Jr., Foley, for appel-lees Gladys A. Campbell, Paula Campbell Buettner, Jason Bennett, and Mendi Bennett.
   THOMPSON, Presiding Judge.

Jewel Campbell, Acie A. Campbell, William J. Campbell, Jr., Roy J. Campbell, Eva Campbell, William C. Campbell, Kelly Calvert, and Amanda Givens (“the plaintiffs”) appeal from a summary judgment entered by the Baldwin Circuit Court in their action against Ethel C. Taylor, Paula Buettner, Gladys A. Campbell, the Baldwin County Revenue Commission, Hamm Enterprises, Ltd., Ruben Orosco, Medstar Ambulance Service, Jason Bennett, Mendi Bennett, and Madison County Community Bank (“the defendants”). For the reasons stated herein, we dismiss the appeal.

A.V. Campbell, Sr., and his wife, Gladys E. Campbell, had at least four children, including A.V. Campbell, Jr., W.J. Campbell, defendant Ethel C. Taylor, and Archie Paul Campbell. Archie Paul Campbell had two children who are defendants in the present action, Gladys A. Campbell and Paula Buettner. The plaintiffs are the heirs of W.J. Campbell.

A.V. Campbell, Sr., died in 1977, and his will was admitted to probate. In 2005, the administration of his estate was removed to the Baldwin Circuit Court. Following the entry of a final judgment, Jewel Campbell filed an appeal to the supreme court, which affirmed the trial court’s judgment without issuing an opinion. We refer to that litigation herein as “the prior litigation.”

On June 2, 2009, the plaintiffs filed an action against the defendants pursuant to Rule 60(b), Ala. R. Civ. P., seeking to set aside the judgment entered in the prior litigation. The plaintiffs alleged that all the defendants claimed an interest in certain real property that was the subject of the action. The plaintiffs asserted that, by virtue of being heirs at law and the next of kin of A.V. Campbell, Sr., the plaintiffs also claimed an ownership interest in that real property, and they described the real property as comprising seven separate parcels. Among other things, the plaintiffs alleged that they had not been made parties to the prior litigation and, as a result, that they were not bound by the judgment in that case. The plaintiffs asserted that the judgment in the prior litigation had failed to award to them their pro rata share of that property pursuant to the will of A.V. Campbell, Sr., and the intestacy laws of Alabama, and they sought a judgment setting aside the judgment in the prior litigation and awarding to them a share of the property described in the complaint.

Defendant Ethel C. Taylor filed a motion for a summary judgment in which she argued that the trial court in the prior litigation had correctly construed the will of A.V. Campbell, Sr. In the plaintiffs’ response to Taylor’s summary-judgment motion, they contended that Taylor had failed to file any evidentiary material in support of her motion and that the motion was supported only by Taylor’s attorney’s unsworn statements. Thus, the plaintiffs argued, Taylor’s motion did not comply with Rule 56, Ala. R. Civ. P. The plaintiffs also argued that they had not been served with process in the prior litigation and, as a result, that the judgment entered in that action was without force and effect as to them. The plaintiffs supported their response to the summary-judgment motion with affidavits.

Taylor moved to strike the affidavits of Jewel Campbell, William J. Campbell, and Kelly Calvert on the basis that those plaintiffs had been represented by legal counsel in the prior litigation. Defendants Gladys A. Campbell, Paula Buettner, Jason Bennett, and Mendi Bennett (“the Campbell defendants”) filed a motion to strike certain statements from all the plaintiffs’ affidavits, arguing that the affidavits did not comply with Rule 56, Ala. R. Civ. P. Specifically, they asserted that the prior litigation was not “new litigation” but, instead, was simply the removal of the administration of the estate of A.V. Campbell, Sr., to the Baldwin Circuit Court from the Baldwin Probate Court pursuant to § 12-11-41, Ala.Code 1975, and that notice was not required to be given to the parties. The Campbell defendants asserted, among other things, that, in 1977, the plaintiffs or the plaintiffs’ parents or guardians ad litem were either served with process or filed a waiver of notice and consent to probate and record the will of A.V. Campbell, Sr.

The trial court held a hearing on the pending motions, after which the plaintiffs and the Campbell defendants submitted post-hearing briefs. On June 3, 2010, the trial court granted Taylor’s motion for a summary judgment by entry of a judgment that read: “Motion for summary judgment pursuant to Rule 56 filed by TAYLOR ETHEL C. is hereby granted.” The trial court also granted Taylor’s and the Campbell defendants’ motions to strike the plaintiffs’ affidavits. The plaintiffs filed an appeal to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Although no party has raised any question with regard to this court’s jurisdiction, this court is obligated to consider its jurisdiction ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997). As a general rule, this court’s appellate jurisdiction extends only to final judgments. § 12-22-2, Ala.Code 1975. In Trousdale v. Tubbs, 929 So.2d 1020, 1022 (Ala.Civ.App.2005), this court wrote:

“ ‘An appeal ordinarily will lie only from a final judgment — i.e., one that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.’ Bean v. Craig, 557 So.2d 1249, 1258 (Ala.1990). ‘The issue of whether a judgment is final is jurisdictional.’ Hardy v. State ex rel. Chambers, 541 So.2d 566, 567 (Ala.Civ.App.1989).”

An order that resolves claims against fewer than all the defendants is not a final judgment that is capable of supporting an appeal in the absence of a proper certification of finality pursuant to Rule 54(b), Ala. R. Civ. P. See Rule 54(b), Ala. R. Civ. P.

At the time the trial court entered the summary judgment, there were numerous defendants. Only one of those defendants, Ethel C. Taylor, had actually sought a summary judgment. Although the Campbell defendants filed a motion to strike portions of the affidavits the plaintiffs had filed in support of their response to Taylor’s summary-judgment motion, the Campbell defendants never filed any motion or other document indicating that they were joining in Taylor’s summary-judgment motion or were otherwise moving for the entry of a summary judgment in their favor. The trial court’s order granting the summary-judgment motion does not indicate that it was intended to apply to any party other than Taylor, the party who had sought the judgment.

We note that the case-action summary and the entries in the State Judicial Information System relating to this action indicate that, on June 8, 2010, the date of the entry of the summary judgment, the action was disposed of in its entirety by settlement. However, there is no indication of the entry of a judgment that would have actually caused the case to be “disposed” of as to all the defendants, and there is no indication that any of the parties entered into a settlement agreement causing the termination of the plaintiffs’ action. In the absence of a judgment that, by its terms, applied to all the defendants, we will not construe the notation on the case-action summary or in the State Judicial Information System that the action was disposed of by settlement as equivalent to the rendition and entry of a judgment in favor of all the defendants. See Rule 58, Ala. R. Civ. P. (setting forth the manner in which judgments are to be rendered and entered); Knoedler v. Blinco, 50 So.3d 1047, 1050 (Ala.2010) (holding that the trial court’s judgment was not a final judgment because counterclaims remained pending, despite indication in the case-action summary that action had been disposed of in its entirety); and Warren v. Wester, 796 So.2d 377, 379 (Ala.Civ.App.2001) (holding that the entry in the case-action summary indicating that the action had been disposed of did not, of itself, “adjudicate any claims as to any parties,” and concluding that, despite that entry, claims remained pending against certain defendants).

Because the summary judgment did not resolve the plaintiffs’ claims against all the defendants and because the trial court did not certify its judgment as final pursuant to Rule 54(b), the summary judgment in favor of Taylor was not a final judgment capable of supporting this appeal. As a result, this court is required to dismiss the appeal. See Young v. Sandlin, 703 So.2d 1005, 1008 (Ala.Civ.App.1997) (“ ‘When it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.’ ” (quoting Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974))).

APPEAL DISMISSED.

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

On Applications for Rehearing

THOMPSON, Presiding Judge.

In their applications for rehearing, the Campbell defendants, joined by Taylor, point out that, after this court dismissed this appeal on January 21, 2011, the trial court amended the case-action summary to reflect that the action had been disposed of by summary judgment, not by settlement. Thus, they argue, Warren v. Wester, 796 So.2d 377 (Ala.Civ.App.2001), on which this court relied in its opinion on original submission, is not applicable to this case.

In Warren, the trial court entered a summary judgment in favor of four defendants, and, like the case-action summary in this case, the case-action summary contained an entry for the same date the judgment was entered suggesting that the case had been disposed of by settlement. However, as in this case, there was nothing in the case-action summary reflecting that the trial court had actually entered an order disposing of the entire case, and, as in this case, the record did not contain an order disposing of any claims as to the remaining parties. Thus, this court concluded that the entry reflecting a disposition by settlement did not actually adjudicate any claims as to any parties, and we held that the unadjudicated claims remained pending in the trial court. 796 So.2d at 379.

It appears from the case-action summary in this case that on January 31, 2011, or February 1, 2011, the trial court amended the case-action summary by deleting the entries indicating that the case had been disposed of by settlement as to all the defendants; by noting that those entries had been made in error; by adding an entry that reads: “DISPOSED ON: 06/03/2010 BY (SUMMARY JUDGMT)”; and by adding the following statement: “THIS CASE WAS OFF INDEX BY SETTLE IN ERROR THEN CORRECTED BY TO BE (sic) OFF INDEX WITH SUMMARY JUDGMENT ON 06/04/2010.” (Capitalization in original.)

For the reasons expressed in Warren relative to the lack of an actual order disposing of the case, we are not convinced that the trial court’s new entries in the present case are sufficient to constitute the rendition and entry of a summary judgment in favor of all the defendants. However, even assuming that the new entries in the case-action summary, added after the entry of this court’s judgment, would be sufficient to accomplish the task of rendering and entering a summary judgment in favor of all the defendants, the trial court was without jurisdiction to make such entries in the case-action summary.

As we concluded in our opinion on original submission, at the time this court entered its judgment the notations in the case-action summary were insufficient to constitute the rendition and entry of a judgment in favor of at least some of the defendants. When, a little more than a week later, the trial court purported to amend the case-action summary to reflect disposition of the case by summary judgment, the trial court was without jurisdiction over the case. As this court stated in Veteto v. Yocum, 792 So.2d 1117, 1118-19 (Ala.Civ.App.2001):

“A * “judgment of [a Court of Appeals] is not a final judgment until that court issues a certificate of judgment, and an application for rehearing in that court and a petition in [the supreme court] for writ of certiorari stay the issuance of that certificate.”’ Ex parte Tiongson, 765 So.2d 643, 643 (Ala.2000) (quoting Jackson v. State, 566 So.2d 758, 759 n. 2 (Ala.1990), and citing Rule 41, Ala. R.App. P.).... The trial court had no jurisdiction to enter any order or judgment until after this court issued its certificate of judgment on July 10, 2000. The trial court’s June 28, 2000, judgment dismissing Veteto’s action was void because the trial court had no jurisdiction.”

In the present case, at the time the trial court made its additional entries in the case-action summary, it had not been reinvested with jurisdiction because this court had not issued a certificate of judgment. Thus, the trial court was not permitted to amend the case-action summary in such a manner as to expand the scope of its summary judgment to include parties other than Taylor, the only party within the scope of the trial court’s summary judgment at the time of the appeal in this case.

We recognize, of course, that a trial court may, pursuant to Rule 60(a), Ala. R. Civ. P., correct clerical mistakes at any time, even when a case is on appeal. However, Rule 60(a) “cannot be used to modify or enlarge a judgment nor to make the judgment say something other than what was originally pronounced.” Michael v. Michael, 454 So.2d 1035, 1037 (Ala.Civ.App.1984). In the present case, the only judgment contained in the record at the time of the appeal was a summary judgment entered in favor of Taylor. The trial court was not permitted under Rule 60(a) to expand the scope of that judgment to include all the remaining defendants under the guise of correcting a clerical error. Thus, we conclude that, even if the trial court’s amendment of the case-action summary could be construed as the rendition and entry of a summary judgment as to all the parties, such an amendment would not be permitted.

We have reviewed the remaining arguments the Campbell defendants and Taylor raise on application for rehearing, and we conclude that they are without merit. As a result, their applications are due to be, and are hereby, overruled.

APPLICATIONS OVERRULED.

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

      . Big Island, L.L.C., Federal Land Bank Association of South Alabama, FLCA, Jane Boyle, the State of Alabama, and the Alabama Department of Revenue were also named as defendants, but the plaintiffs filed notices of dismissal of their claims against those defendants and those defendants were dismissed from the action.

      . Because the plaintiffs alleged that they claimed an interest in the property that was the subject of the prior litigation, (hat they had not been made parties to that litigation, and that they were seeking to have the judgment in the prior litigation set aside pursuant to Rule 60(b), we construe the plaintiffs’ claims as asserting that the judgment in the prior litigation was void for failure to join indispensable parties. See Johnston v. White-Spunner, 342 So.2d 754, 759 (Ala.1977) (“In an action where the final decree affects title, ownership, or interest in real property each possessor of title, ownership or interest must be made a party to the action.... Rendering final judgment widiout jurisdiction over those indispensable parties renders that judgment void.").

      . Even if this court were to conclude that the Campbell defendants' filings relative to the summary-judgment motion constituted an implicit joinder in that motion, there remained several other defendants who had been served with process and who had never filed anything related to Taylor’s summary-judgment motion.

       Note from the reporter of decisions: On March 25, 2011, the Court of Civil Appeals overruled the applications for rehearing filed on February 3, 2011, and February 4, 2011, without opinion. On April 15, 2011, that court recalled the certificate of judgment it had issued on April 13, 2011, and ex mero motu set aside the decision of March 25, 2011, and placed the case on rehearing.


author: PER CURIAM.

text:
    Douglas CROUCH v. Richard ALLEN, Commissioner of the Alabama Department of Corrections, et al.
    2100279.
    Court of Civil Appeals of Alabama.
    July 22, 2011.

      Douglas Crouch, pro se.
    Anne Adams Hill, gen. counsel, and Bart Harmon, asst. gen. counsel, Department of Corrections Legal Division, for Alabama Department of Corrections.
    William R. Lunsford of Maynard, Cooper & Gale, P.C., Huntsville, for appellee Correctional Medical Services, Inc.
   PER CURIAM.

On August 25, 2010, Douglas Crouch, an inmate at the Elmore Correctional Facility (“the ECF”), filed in the Montgomery Circuit Court a petition seeking a writ of mandamus directing Richard Allen (“the commissioner”), Commissioner of the Alabama Department of Corrections (“ADOC”); Leeposey Daniels (“the warden”), Warden of the ECF; and Correctional Medical Services (“CMS”), an entity that provides medical services to inmates pursuant to a contract with ADOC, to provide Crouch with adequate medical treatment, to provide him with meaningful access to the courts, to stop collecting medical co-payments; and to stop enforcing two new prison rules. Thereafter, the commissioner, the warden, and CMS filed motions to dismiss. On November 16, 2010, the trial court entered a judgment denying Crouch’s petition. Crouch appeals the denial of his petition seeking a writ of mandamus.

“ We note at the outset that in an appeal from the trial court’s denial of a petition for a writ of mandamus, “this court must indulge all reasonable presumptions in favor of the correctness of the judgment appealed from.” ’ Kilgore v. Jasper City Bd. of Education, 624 So.2d 603, 604 (Ala.Civ.App.1993) (quoting Huffstutler v. Reese, 510 So.2d 275, 277 (Ala.Civ.App.1987)).
“Mandamus is a drastic and extraordinary writ and is to be issued only where there is a clear legal right to the relief sought by the petitioner. Ex parte State Dep’t of Human Resources, 674 So.2d 1274 (Ala.Civ.App.1995). Because it is an extraordinary remedy, the standard of review is whether there has been a clear abuse of discretion by the trial court. Id.”

Perry v. State Dep’t of Corr., 694 So.2d 24, 25 (Ala.Civ.App.1997).

Crouch argues that the trial court erred in denying his petition insofar as it sought a writ of mandamus directing the commissioner, the warden, and CMS to provide him with adequate medical care because, he says, the trial court did not conduct an evidentiary hearing regarding the adequacy of the medical treatment he was being provided.

“An inmate in a state penal institution has a constitutional right to adequate medical treatment. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Fountain v. State, 648 So.2d 591 (Ala.Civ.App.1994). This court has further held that ‘[a]n evidentiary hearing is warranted in order for the trial court to determine whether an inmate in a state penal institution is receiving adequate medical attention.’ Fountain, 648 So.2d at 592 (citations omitted).”

Perry, 694 So.2d at 25. However, “an inmate’s preference for treatment different from that administered by the health care providers does not amount to a violation of the Eighth Amendment [of the U.S. Constitution].” Montanez v. QuestCare, Inc., 675 So.2d 466, 468 (Ala.Civ.App.1996).

In the case now before us, Crouch alleged that, for the previous two years, he had suffered from degenerative disk disease in the lumbar area of his back; that his back had been x-rayed and that he had been given prescription steroids and muscle relaxers and over-the-counter pain medication to treat the pain in his back. He further alleged that the treatment he had received had not stopped the pain in his back. In addition, he alleged that he had requested that he be treated by a back specialist and that he might obtain relief from his back pain if he was given “Spine Reconditioning System (SRS) therapy/treatment.” Crouch also alleged that he had had cataract surgery and that his eyesight could be improved with the surgical implantation of a prosthetic lens. Those allegations do not indicate that Crouch was not receiving adequate medical care; they merely indicate that Crouch preferred forms of treatment that were different from those being provided. Accordingly, because Crouch’s petition failed to allege that he was not receiving adequate medical care, he was not entitled to an evidentiary hearing regarding the issue whether he was receiving adequate medical care. See Perry. Therefore, we cannot reverse the judgment of the trial court on the ground that it did not conduct an evidentiary hearing regarding that issue.

Crouch also argues that the trial court erred in failing to make findings of fact. However, he has cited no legal authority holding that the trial court was required to make findings of fact in this case.

“It is the appellant’s burden to refer this Court to legal authority that supports its argument. Rule 28(a)(10), Ala. R.App. P., requires that the argument in an appellant’s brief include ‘citations to the cases, statutes, [and] other authorities ... relied on.’ Consistent with Rule 28, ‘[w]e have stated that it is not the function of this court to do a party’s legal research.’ Spradlin v. Spradlin, 601 So.2d 76, 78 (Ala.1992) (citing Henderson v. Alabama A & M University, 483 So.2d 392, 392 (Ala.1986) (‘“Where an appellant fails to cite any authority, we may affirm, for it is neither our duty nor function to perform all the legal research for an appellant.” Gibson v. Nix, 460 So.2d 1346, 1347 (Ala.Civ.App.1984).’)). Because the Board has cited no legal authority that addresses whether a party’s failure to perform its contractual obligations defeats its fraud claims relating to those contracts, we will not consider whether the trial court’s judgment should be reversed as to this issue.”

Board of Water & Sewer Comm’rs of City of Mobile v. Bill Harbert Constr. Co., 27 So.3d 1223, 1254 (Ala.2009). Accordingly, because Crouch has cited no legal authority supporting his argument that the trial court erred in failing to make any findings of fact, we will not consider that argument. See Board of Water & Sewer Comm’rs of City of Mobile.

Crouch also argues that the trial court erred because, he says, the warden was in default due to his failure to file his answer within 30 days after he was served with process when he filed his motion to dismiss and the commissioner never answered or otherwise filed a defensive pleading. First, we find no merit in Crouch’s argument that the commissioner never answered or otherwise filed a defensive pleading because the record indicates that the commissioner and the warden filed a joint motion to dismiss. Second, Crouch has cited no legal authority in support of his argument that the trial court erred in denying his petition despite the fact that the commissioner and the warden had not answered his complaint within 30 days after they were served. Therefore, we will not consider that argument.

Crouch also asserts the general proposition that “mandamus is the proper remedy to issue to require a public official to do a ministerial act that the official is legally bound to perform.” (Crouch’s brief at p. 11.) However, he does not articulate how that general proposition justifies a reversal of the judgment of the trial court in this case. Crouch’s mere assertion of that general proposition of law is insufficient to merit a reversal. See Cincinnati Ins. Cos. v. Barber Insulation, Inc., 946 So.2d 441, 449 (Ala.2006) (“ ‘Authority supporting only “general propositions of law” does not constitute a sufficient argument for reversal.’ ”).

Crouch also asserts that a “[w]rit of mandamus is the appropriate remedy when there is a clear showing that a public official has abused [his or her] discretion and exercised that discretion in an arbitrary and capricious manner” and that “[i]t is clear, from the filings [that the commissioner, the warden, and CMS] were denying Crouch ... adequate and proper medical attention ... access to the courts ... liberty interest and due process in property ... to remain free from cruel and unusual punishment ... and freedom of religion.” (Crouch’s brief at p. 11.) However, the assertion of a general proposition of law and a conclusory assertion that the trial court has violated that general proposition is insufficient to merit a reversal. Id.

Finally, Crouch asserts that “[m]andamus is the proper remedy to enforce court orders” and that the commissioner and the warden have failed to follow a court order entered by the Fifteenth Judicial Circuit on August 30, 1995 (“the 1995 order”). Crouch attached the 1995 order, which required ADOC to maintain notebooks containing its administrative regulations, to his petition in support of his claim that the commissioner and the warden were denying him meaningful access to the courts. However, the gravamen of his claim that the commissioner and the warden were denying him meaningful access to the courts was that they were not providing him with an adequate law library. Neither Crouch’s petition nor his brief on appeal articulates how a failure to maintain a notebook containing administrative regulations relates to his claim that the commissioner and the warden were not providing him with an adequate law library. Accordingly, Crouch’s assertion of the general proposition that “[m]andamus is the proper remedy to enforce court orders” and his conclusory assertion that the commissioner and the warden are not following the 1995 order are insufficient to merit a reversal. Id.

For the reasons discussed above, we affirm the judgment of the trial court.

AFFIRMED.

All the judges concur.

      . Richard Allen is no longer the Commissioner of the Alabama Department of Corrections. Rule 25(d), Ala. R. Civ. P., and Rule 43(b), Ala. R.App. P., provide that if a public officer is a party to an action or an appeal in an official capacity and the officer ceases to hold office during the pendency of the action or the appeal, the officer’s successor is automatically substituted as a party.

      . In the alternative, Crouch's petition sought a writ of prohibition; however, Crouch has not argued on appeal that the trial court erred in denying his petition insofar as it sought a writ of prohibition, and, therefore, he has waived that claim. See Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) ("When an appellant fails to argue an issue in its brief, that issue is waived.”).

      .Crouch filed a postjudgment motion, which the trial court denied. Crouch then appealed to this court. Due to lack of jurisdiction, we transferred the appeal to the supreme court, which transferred the appeal back to this court pursuant to § 12-2-7(6), Ala.Code 1975.


author: PITTMAN, Judge.

text:
    C.J. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2100252.
    Court of Civil Appeals of Alabama.
    July 22, 2011.
    Harry A. Drasutis, Hoover, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Kimberly J. Dobbs, asst. atty. gen., Department of Human Resources, for ap-pellee.
   PITTMAN, Judge.

C.J. (“the mother”) appeals from three juvenile-court judgments determining that her children, A.J., who was born in 1995; M.J., who was born in 1998; and Mo.J., who was born in 2001, were dependent; those judgments awarded custody of the children to Ma.J. (“the father”) and relieved the Jefferson County Department of Human Resources (“DHR”) from the responsibility of providing reunification services to the mother. Because the record on appeal is inadequate for review by this court, we transfer this appeal to the Jefferson Circuit Court pursuant to Rule 28(D), Ala. R. Juv. P., for a trial de novo in accordance with Rule 28(B), Ala. R. Juv. P.

In October 2010, DHR filed dependency petitions as to the children after Mo.J. had told her school counselor that her mother suffered from bipolar disorder and had not been receiving treatment or taking the proper medication to control her medical condition. Following a shelter-care hearing, the children were placed by DHR in the father’s home. In December 2010, the juvenile court conducted a hearing on the merits and entered adjudications of dependency based upon stipulations that the mother did not have stable housing or a stable income. At the conclusion of that unrecorded hearing, the juvenile court awarded custody of the children to the father and ordered DHR to close the case file on the mother.

The mother appeals and asserts that she did not, in actuality, stipulate as to any substantive issue that would support a determination that the children were dependent. The juvenile court, pursuant to Rule 28(A)(1)(a), Ala. R. Juv. P., certified the record on appeal as adequate, although that certification specifically notes that “no transcript” of the hearing exists.

We have previously addressed the fact that a juvenile court’s certification of the record does not, in and of itself, render the record adequate so as to allow appellate review by this court. See W.E.C. v. Madison Cnty. Dep’t of Human Res., 909 So.2d 849, 850 (Ala.Civ.App.2005), and R.G. v. C.M., 980 So.2d 417, 418 (Ala.Civ.App.2007). In W.E.C., we held that a certification by the juvenile court, made pursuant to Rule 28(A)(1)(a), Ala. R. Juv. P., that the record on appeal in that case was adequate for appellate review was not conclusive as to the issue of jurisdiction; we transferred the appeal in that case to the appropriate circuit court because the appellants had challenged the correctness of a juvenile-court custody judgment entered after an untranscribed hearing.

The absence from the record of a transcript of the December 2010 proceeding wherein factual stipulations were apparently made, upon which stipulations the juvenile court based its adjudications of dependency, renders the record on appeal in this case inadequate for review by this court. Rule 28(B), Ala. R. Juv. P., provides that an appeal from a juvenile court shall be to the circuit court for a trial de novo when the record on appeal is inadequate for review by an appellate court. Rule 28(D), Ala. R. Juv. P., provides that “[a]n appellate court or circuit court may transfer an appeal that it determines should have been transferred to or brought in another court to that other court.” Accordingly, we transfer the mother’s appeal to the Jefferson Circuit Court for a trial de novo.

APPEAL TRANSFERRED.

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

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


author: MOORE, Judge.

text:
    T.S. v. M.O. and T.O.
    2100110.
    Court of Civil Appeals of Alabama.
    July 22, 2011.

      Scott Hunt of Hammitte & Hunt LLC, Hamilton, for appellant.
    Submitted on appellant’s brief only.
    Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for amicus curiae Marion County Department of Human Resources, in support of the appel-lees.
   MOORE, Judge.

T.S. (“the mother”) appeals from a judgment of the Marion Juvenile Court (“the juvenile court”) terminating her parental rights to J.B. (“the child”). We affirm.

Facts and Procedural History

The child was born to the mother and R.B. (“the father”) on April 12, 2006, in Massachusetts. M.O., the child’s paternal uncle, testified that, sometime in 2006, the father contacted him and told him that he had a new baby, that the mother was in “a rehab,” and that he wanted to straighten out his life. M.O. testified that he then traveled to Massachusetts and picked up the father, the mother, and the child and brought them to Alabama to live with him and his wife, T.O. The mother testified that, when M.O. picked them up in Massachusetts, she was actually residing at a family shelter with the child and that she had been sober for one year at that time. M.O. testified that the father, the mother, and the child lived with him and T.O. for about six months, at which time they moved into M.O.’s second home. M.O. testified that things went well at first but that he eventually suspected that the parents were doing drugs because they requested that he give them money instead of purchasing milk for the child, money and other things came up missing, and he observed known “cookers” hanging around the parents’ home. He testified that he had never seen the mother using drugs but that he had witnessed her “high.” He testified that he moved to Missouri in late 2007 or early 2008. His wife, however, did not join him in Missouri until after February 2008.

The Walker County Department of Human Resources (“the Walker County DHR”) became involved with the family in February 2008. The mother testified that she was involved in an automobile accident and left the scene of the accident. She testified that she was sober at the time of the accident but that the people who were with her, the father and another individual, were not. Walker County DHR records indicate that the child was bleeding from his mouth as a result of the accident. The mother testified that, after the accident, she took the child to T.O., who is a registered nurse, to have her check the child. She testified that she then went home and drank two beers because she knew that she would be in trouble for having left the scene of the accident. The mother testified that, as a result of the accident, she had been charged with reckless endangerment, unlawful possession of alcohol, and resisting arrest and that those charges were still pending at the time of the trial. According to a September 8, 2010, home-study report (“the home-study report”) prepared by the Marion County Department of Human Resources (“the Marion County DHR”), after the automobile accident, the police went to the parents’ home, and, when they searched the home, they found “crack,” methamphetamine pipes, and copper wiring. The mother testified that she did not know that those items were in the home. Walker County DHR records also indicate that the police found the home to be very dirty. Walker County DHR records indicate that, on February 9, 2008, the Walker County DHR received a report regarding the automobile accident and the condition of the parents’ home as found by the police. The Walker County DHR took custody of the child and placed the child in foster care. M.O. testified that, when the child was first placed in foster care, he and T.O. had wanted the child to live with them, but representatives of the Walker County DHR had stated that they were going to work with the mother to try to reunite her with the child.

The mother testified that the trauma of losing custody of the child caused her to “relapse,” but, she testified, she immediately sought help. The mother began a six-month drug-rehabilitation program in August 2008. After a month, she was transferred to the program’s sister agency, Life House, so that she would be closer to the child for visitation. The mother completed the rehabilitation program in February 2009. The home-study report indicated that the mother also had completed parenting classes and counseling. From February 2008 until April 2009, the mother had supervised visitation at the Walker County DHR office for two hours each week. Beginning in April 2009, the mother was allowed Saturday visitation with the child from 9 a.m. to 6 p.m. The mother was reunited with the child in June 2009. The mother testified that she and the child lived in a halfway house until she found an apartment. She testified that she enrolled the child in “Happy Faces” day care and that he had done great. The Walker County DHR monitored the case until December 2009.

Ali Tyra, a social-service worker for the Marion County DHR, testified that, on January 28, 2010, the Marion County DHR received an anonymous telephone call indicating that the parents were using drugs at the Family Inn, a hotel in Marion County, in the presence of the child. According to Tyra, the Marion County DHR investigated the matter. The mother subsequently tested positive for cocaine, although she denied having used cocaine. The mother testified that the father had been putting cocaine in his drink and that she must have drank some of his drink by mistake. She testified that she had been “clean” for two years before that positive drug screen. Tyra testified that the father tested positive for cocaine, opiates, and marijuana and that he admitted to having smoked marijuana a few days before he was tested; he also admitted to having taken a Lortab.

Tyra testified that the Marion County DHR requested a pickup order from the juvenile court. She testified that the Marion County DHR was subsequently awarded temporary custody of the child and that the child was placed in foster care. Tyra testified that the juvenile court held a permanency hearing on April 6, 2010, and that M.O. and T.O. were awarded temporary custody of the child following that hearing. Tyra testified that the Marion County DHR closed its file at that time. She also testified that the mother was living in a drug-treatment facility at that time and that she had not had any contact with the mother since then. She testified that, because the mother had had her parental rights terminated with regard to her other children, the Marion County DHR was not required to make reasonable efforts to reunite the mother and the child.

The mother testified that she was in foster care most of her childhood because her mother and stepfather were alcoholics and drug addicts. The home-study report indicates that the mother began a relationship with the father when she was 18 or 19 years old. The mother testified that she began using drugs when she was 22 years old. According to a mental-health evaluation dated March 20, 2008, the mother and the father had had their parental rights to four other children terminated because they were homeless and had substance-abuse issues. The mother testified that she voluntarily gave up her rights to two of the four children.

The mother testified that she had changed and had learned from her mistakes. She testified that, since January 2010, she had completed “treatment,” a mental-health class, and parenting classes. The home-study report indicated that she had returned to Life House for drug treatment. Maya Duffy, a substance-abuse counselor at Northwest Alabama Mental Health, testified that the mother completed the outpatient program offered at Northwest and that the mother was still attending group sessions twice a week at the time of the trial. Duffy testified that the mother had tested negative for drugs throughout her treatment, that she had shown responsibility in treatment, that she had shown support to other members, and that she had been active in treatment and had done well. The mother testified that she continues to take drug tests; she introduced into evidence several negative drug-test results. The mother testified that she also attends Alcoholics Anonymous (“AA”) meetings and Narcotics Anonymous (“NA”) meetings. The mother testified that, after completing an eight-week parenting course, she continued to attend the parenting classes for an additional five months because she felt like she needed to learn more.

The mother testified that she still lives in the same apartment that she was living in when the child was removed from her custody in January 2010. She testified that the apartment has two bedrooms and that the child’s bed and all of his clothes and toys are in her apartment. The mother also testified that she has been employed by Taco Bell since March 16, 2010, and that she earns $7.45 an hour and works 25 to 30 hours a week. She testified that she attends church on Sundays and Wednesdays and that she teaches a children’s Sunday School class. The mother introduced into evidence several letters of support from various people, including the director of Happy Faces day care and two of her managers at Taco Bell.

The mother testified at trial that the father was living in Massachusetts, that she had not talked to him in months, and that she wanted nothing to do with him. She testified that she would not let the father back into her life. She testified that the father is a drug addict and an alcoholic and that, to her knowledge, he was still using drugs. She testified that the father does not want the child.

Tyra testified that the Marion County DHR thought that the parental rights of the parents should be terminated and that M.O. and T.O. should be awarded permanent custody. Tyra testified that she was concerned with the mother’s history, her patterns, and the reason that the Marion County DHR had had to get involved with her. The home-study report indicated that, although the mother’s home was clean, organized, and had adequate furnishings, the Marion County DHR was concerned with the mother’s ability to remain substance free because of the mother’s history of her drug-rehabilitation treatment not being successful.

M.O. testified that he and T.O. still live in Missouri. He testified that, when the child first started living with them, the child had a lot of anger issues from being bounced around from place to place. He testified that the child had put holes in the walls of their home and had been cruel to their pets. He testified that they had taken the child to a doctor who had scheduled the child to have a psychiatric evaluation. M.O. testified that the child’s anger issues have improved, that he has lots of friends, that he is bonding with people, and that he has “gotten a lot better” with the pets. M.O. testified that he believed it would be in the child’s best interest for him to stay with M.O. and T.O.

T.O. testified that she wanted the child to live with her and M.O. permanently. She testified that they had taken the child to a doctor for an evaluation and that the child is fine. She testified that the only thing she and M.O. are concerned about is the possibility that the child may be hyperactive, but, she stated, they would figure that out when the child begins school. She testified that the child had calmed down a lot over the couple of months preceding the trial. She testified that the mother had telephoned and sent text messages to M.O. but that she had not spoken with the mother.

On July 30, 2010, the mother filed in the juvenile court a motion requesting that the child be returned to her custody. On August 30, 2010, M.O. and T.O. filed an answer; they also filed a petition to terminate the parental rights of the mother and the father. On September 29, 2010, the juvenile court held a trial, and, on October 1, 2010, the juvenile court entered a judgment terminating the parental rights of the mother and the father and awarding custody of the child to M.O. and T.O. • On October 14, 2010, the mother filed a motion to alter, amend, or vacate the juvenile court’s judgment; that motion was denied on October 21, 2010. On October-28, 2010, the mother filed her notice of appeal to this court.

Discussion

On appeal, the mother argues that the State may terminate parental rights only when the evidence establishes no other viable alternative. See Ex parte Beasley, 564 So.2d 950, 954-55 (Ala.1990). The mother maintains that one viable alternative to terminating her parental rights is providing her an opportunity to grow into her role as a mother. The mother asserts that, until that opportunity is exhausted, the juvenile court may not lawfully terminate her parental rights. More precisely, the mother contends that, in this case, the juvenile court erred in terminating her parental right because it did not first give her “a chance to mature both as a person and as a mother....” Appellant’s brief, p. 8. We disagree.

The record shows the following, without dispute. The mother had given birth to four other children before the child at issue. She lost custody of all four of those children, at least two of them through involuntary termination-of-parental-rights proceedings in Massachusetts. The mother arrived in this state with the stated good intentions of changing the drug-abusing lifestyle that had led to her past parental problems; however, she eventually relapsed into drug use. After removing the child from the care of the mother, the Walker County DHR assisted the mother with completing at least her second drug-rehabilitation program. After completing that program, the mother regained custody of the child in June 2009 only to again test positive for illegal drugs and lose custody of the child in January 2010.

The evidence shows very clearly and convincingly that the mother has had multiple opportunities to grow into her role as a parent and that she has failed to take advantage of those opportunities. In assessing the viability of alternatives other than terminating the parental rights of the mother, the juvenile court was not required to blind itself to the evidence of the mother’s past failures. See T.B. v. Lauderdale Cnty. Dep’t of Human Res., 920 So.2d 565, 570 (Ala.Civ.App.2005) (“In deciding to terminate parental rights, a trial court may consider the past history of the family as well as the evidence pertaining to current conditions.”). The juvenile court was not required to treat this case as if it presented the first opportunity for the mother to rehabilitate herself and assume the role of a proper parent. Rather, the juvenile court was free to consider that the mother had repeatedly failed to overcome the problems that prevented her from becoming a proper parent and to conclude, as it apparently did, that giving the mother an additional opportunity at reform would only prove futile, thereby needlessly delaying the permanent disposition of the custody of the child. See M.W. v. Houston Cnty. Dep’t of Human Res., 773 So.2d 484, 487 (Ala.Civ.App.2000) (“At some point, however, the child’s need for permanency and stability must overcome the parent’s good-faith but unsuccessful attempts to become a suitable parent.”).

“The determination of whether a viable alternative to termination of parental rights exists is a question of fact to be decided by the juvenile court. See Ex parte J.R., 896 So.2d 416 (Ala.2004). On appeal from ore tenus proceedings in a termination-of-parental-rights case, this court presumes that the juvenile court’s factual findings regarding viable alternatives are correct. See J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1183 (Ala.Civ.App.2007). However, because of the serious nature of a judgment severing a familial relationship, see L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002), this court conducts a ‘careful search of the record’ to determine whether such findings are supported by clear and convincing evidence. In re Moore, 470 So.2d 1269, 1270 (Ala.Civ.App.1985). See also Columbus v. State Dep’t of Human Res., 523 So.2d 419, 421 (Ala.Civ.App.1987); and Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).”

J.B. v. Cleburne Cnty. Dep’t of Human Res., 991 So.2d 273, 282 (Ala.Civ.App.2008). Based on our review of the record, we cannot hold that the juvenile court erred in concluding that the mother had exhausted her opportunities to mature and grow into her role as a proper parent. Clear and convincing evidence supports the juvenile court’s determination that giving the mother an additional opportunity to develop the skills and devices necessary to provide a proper home and environment for the child was not a viable alternative to termination of her parental rights. We, therefore, affirm the juvenile court’s judgment.

AFFIRMED.

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

      . The home-study report prepared by the Marion County Department of Human Resources indicated that the mother was charged with public intoxication, reckless endangerment of a child, and unlawful possession of an alcoholic beverage.

      . The mother did not indicate whether her relapse related to drugs, alcohol, or both. At one point, she testified that she had not done drugs for almost two years preceding the trial; however, at another point, she testified that she had not done drugs for two years preceding January 2010. The home-study report indicated that the mother had relapsed after having been sober for 18 months.

      . That judgment implicitly denied the mother’s petition for custody.

      . The father has not appealed the juvenile court's judgment.