source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    Ex parte Joe N. DICKSON, individually and in his capacity as a member of the State Personnel Board; et al. (In re Alabama State Employees Association and PEBCO, Inc. v. Joe N. Dickson et al.).
    1090111.
    Supreme Court of Alabama.
    March 26, 2010.
    Charles B. Patterson and JoClaudia Moore of Balch & Bingham LLP, Montgomery, for petitioner Ellen G. McNair.
    Larry B. Childs, Stanley E. Graham, and Heath A. Fite of Waller Landsden Dortch & Davis, LLP, Birmingham, for petitioners Joe N. Dickson, John M. McMillan, and Joyce P. O’Neal.
    Joe Espy III and J. Flynn Mozingo of Melton, Espy & Williams, PC, Montgomery, for respondent Alabama State Employees Association.
    J. Mark White and Andrew C. Allen of White, Arnold, Dowd, PC, Birmingham, for respondent PEBCO, Inc.
   WOODALL, Justice.

Members of the State Personnel Board, an agency of the State of Alabama (“the Board”), namely, Joe N. Dickson, John M. McMillan, Joyce P. O’Neal, and Ellen G. McNair, individually and in their official capacities (“the members”), seek a writ of mandamus directing the Montgomery Circuit Court to grant their motion to dismiss count VIII and count IX of the complaints of the Alabama State Employees Association (“the ASEA”) and PEBCO, Inc., in their actions against the members. We deny the petition.

I. Background

This dispute essentially began on November 20, 2007, when Ruth Gwin and Sandra H. Turner, employees of the State of Alabama participating in a “tax deferred annuity and deferred compensation program!] for the salaried employees of the State of Alabama,” adopted pursuant to Ala.Code 1975, § 36-26-14, and I.R.C. § 457 (“the 457 Plan”), filed a complaint in Jefferson County (case no. CV-07-04052) on behalf of themselves and a purported class of participants in the 457 Plan. Named as defendants in that action (hereinafter referred to as the “class action”) were (1) Nationwide Life Insurance Company and Nationwide Retirement Solutions, Inc. (collectively “Nationwide”); (2) the ASEA; and (3) PEBCO.

According to the class-action complaint, the ASEA had contracted with Nationwide to be the service provider for the 457 Plan, that is, “to provide for the daily operation and investment of funds for the [457] Plan.” It alleged that since approximately 2001 Nationwide had been paying kickbacks in the form of unauthorized commissions, expenses, and fees to the ASEA and/or PEBCO, thus benefiting them at the expense of the 457 Plan and its participants. The class-action complaint sought compensatory damages and punitive damages, as well as “disgorgement of amounts paid,” based on theories of breach of fiduciary duty, wantonness, and breach of contract. It also sought declaratory and in-junctive relief, “reformation of [457] Plan documents,” and the “appointment of an independent fiduciary to protect Plan participants.” On December 2, 2008, the plaintiffs moved for a preliminary injunction seeking to enjoin the ASEA and PEB-CO from receiving any further periodic payments from Nationwide and to impose a trust on any such payments for the benefit of the participants in the 457 Plan.

On December 4, 2008, the Board moved to intervene as a plaintiff in the class action and filed a proposed complaint in intervention. The Board alleged that, in compliance with its statutory duties and responsibilities, it had adopted the 457 Plan as recommended by the ASEA but that it was uncertain as to what rights or obligations the Board had “in regards to the [457] Plan once adopted.” Consequently, the Board sought a “judicial declaration of [its] authority” as to the 457 Plan as adopted. Specifically, the Board sought a judgment declaring that it is entitled:

“(a) To copies of all documents in Defendants’ possession that are related in any way to the [457] Plan, as well as all other contracts and evidences of dealings and transactions related thereto.
“(b) To a judicial declaration that neither the ASEA, Nationwide, nor any other person or entity who is a party to any document entered into that relate[s] in any way to the administration of the [457] Plan can withhold such documents from the Boards under a guise of confidentiality or otherwise.
“(c) To an unimpeded investigation of the allegations of wrongdoing in order to assess what action the Board needs to take in connection with the [457] Plan now or in the future.
“(d) To obtain a judicial determination that the Board has a protectable public interest in the [457] Plan and in all contracts, undertakings and transactions related thereto.
“(e) To a judicial declaration that the Board is entitled to conduct all reasonable inquiries and gather all documents/information that affect the administration of the [457] Plan.
“(f) To a judicial declaration that the Board may terminate, reform, modify or amend the current [457] Plan and/or contracts, understandings and arrangements entered into in connection with its administration.
“(g) To a judicial declaration that the Board is not required under 36-26-14(a) to adopt or renew any plan recommended by ASEA unless the Board has been provided sufficient documentation and other information to reasonably satisfy the Board that the Plan recommended is in the best interest of State Personnel and, to a determination that the Board may decline to adopt or renew a Plan recommended by ASEA if it reasonably believes doing so is in the best interest of State personnel.
“(h) To a judicial declaration that once a Plan has been recommended by ASEA and adopted by the Board, the Board can upon reasonable grounds terminate, modify or limit the role of ASEA or other parties in the administration of the Plan.
“(i) To such other relief the Board or the Court later deem to be appropriate.”

The Jefferson Circuit Court granted the Board “provisional intervention” status to afford it the opportunity to “stay abreast of the current state of the litigation.”

On April 9, 2009, the Jefferson Circuit Court held a hearing on the plaintiffs’ motion for a preliminary injunction. All parties, including the Board, participated in the hearing. On April 28, 2009, the Jefferson Circuit Court entered an order denying the motion, stating: “It is clear that granting injunctive relief at the present time would be ruinous to [the ASEA] especially in light of the fact that class status has not [yet] been determined.”

The next day, the Board — purporting to find authority in various sections of the 457 Plan — adopted an “Amendment to the State of Alabama Public Employees Deferred Compensation Plan for Public Employees” (“the amendment”). The amendment, among other things, expressly prohibited “interested persons,” the definition of which included the ASEA and PEBCO, from “receiving] any payment, compensation, or consideration of any kind, whether direct or indirect, relating in any way to the [457] Plan, its income or any asset held regarding the [457] Plan.” Moreover, the amendment provided that every person “who engaged in a [prohibited] transaction” was to be “personally liable to make good to the [457] Plan any losses to the [457] Plan resulting from each such breach or transaction, and to restore to the [457] Plan any profits” accruing to such person. Finally, the amendment purported to operate retroactively to January 1, 1997, predating the contracts and agreements challenged in the class action.

Subsequently, the ASEA and PEBCO filed complaints on May 21, 2009 (case no. CV-09-804), and May 22, 2009 (case no. CV-09-812), respectively, in the Montgomery Circuit Court against the members who voted to adopt the amendment. The ASEA’s complaint alleged that by passing the amendment the members had “inject[ed] themselves into issues already the subject of’ the class action; had “attempted] to assert authority over matters in which they claimed to be unsure of their authority”; and had breached a duty to “refrain from taking any action in an attempt to influence or negate the court in such proceeding.” The complaints alleged due-process and equal-protection violations and impairment of contract as well as intentional interference with business/contractual relations and conspiracy, for which ASEA and PEBCO sought compensatory damages and punitive damages. They also sought declaratory and injunc-tive relief. More specifically, they sought “a permanent injunction ... enjoining the enforcement of the Amendment and further enjoining any and all further acts of the [members] ... to deny [the ASEA and PEBCO] ... the exercise of [their] legal, contractual, and property rights, and business relationship with Nationwide.” (Emphasis added.) The first amended complaint of the ASEA stated:

“Since the initial filing of this Complaint, [the members] have cancelled in its entirety the 157 Plan with Nationwide and have engaged in other conduct whereby they have intentionally ... deprived, or sought to deprive and deny ASEA its rights under the Constitution of Alabama, and to intentionally interfere with ASEA’s contracts, agreements, property rights and business relationship -with Nationwide, and otherwise to injure and damage ASEA.”

(Emphasis added.) Case no. CV-09-804 and case no. CV-09-812 were consolidated on July 6, 2009 (the consolidated action is hereinafter referred to as the “Montgomery action”).

The members moved to dismiss the Montgomery action, asserting, among other things, various immunities. Without discussing the immunity issues, the Montgomery Circuit Court granted the motions on other grounds as to all claims except those seeking injunctive relief. The members then filed this petition seeking a writ of mandamus directing the Montgomery Circuit Court to dismiss the claims against them for injunctive relief on immunity grounds.

II. Discussion

The denial of a motion to dismiss “ ‘grounded on a claim of immunity’ ” is properly reviewable by a petition for a writ of mandamus. Ex parte Simpson, 36 So.3d 15, 22 (Ala.2009). “A writ of mandamus is a drastic and extraordinary writ that will issue to compel a summary judgment on immunity grounds only upon a showing of a clear legal right in the petitioner to the immunity sought.” 36 So.3d at 22. “The burden of establishing a clear legal right to the relief sought rests with the petitioner.” Ex parte Metropolitan Prop. & Cas. Ins. Co., 974 So.2d 967, 972 (Ala.2007). The members rely on three types of immunity as grounds for the dismissal of the claims against them seeking injunctive relief, namely, (1) absolute legislative immunity, (2) State immunity, and (8) State-agent immunity.

A. Absolute Legislative Immunity

According to the members, “[p]ublic officers, in both their official capacity and individual capacity, are entitled to absolute legislative immunity in conjunction with the actions of enacting local legislation.” Petition, at 11 (emphasis added). “Moreover,” they say, “legislative immunity not only bars actions seeking damages but also bars actions seeking declaratory or injunc-tive relief. Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 732 (1980).” Petition, at 13. Although these general statements of law are essentially correct, they miss the point of this dispute.

The question considered by the United States Supreme Court in Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980), was “whether the Supreme Court of Virginia (Virginia Court) and its chief justice [were] [absolutely] immune from suit in an action brought under 42 U.S.C. § 1983 challenging the Virginia Court’s disciplinary rules governing the conduct of attorneys .... ” 446 U.S. at 721, 100 S.Ct. 1967. In particular, the suit sought to permanently enjoin “the enforcement and operation of DR 2-102(A)(6)” of the Virginia Bar Code, which Code had been promulgated by the Virginia Supreme Court. 446 U.S. at 726, 100 S.Ct. 1967 (emphasis added). Although the United States Supreme Court acknowledged that the Virginia Supreme Court and its chief justice would, for “the issuance of, or failure to amend, the challenged rules,” enjoy the same type of absolute, legislative immunity generally afforded state legislators, 446 U.S. at 734, 100 S.Ct. 1967 (emphasis added), it noted that they were properly held “liable in their enforcement capacities,” and thus were “proper defendants in a suit for declaratory and injunctive relief.” 446 U.S. at 736, 100 S.Ct. 1967 (emphasis added). This was so, because the suit sought to enjoin the enforcement, not the promulgation, of DR 2-102(A)(6); because the Virginia Supreme Court and its chief justice exercised “inherent and statutory enforcement powers”; and because “enforcement officers and agencies ” are amenable to suit for “declaratory and injunctive relief.” 446 U.S. at 736, 100 S.Ct. 1967 (emphasis added).

In Ex parte Simpson, supra, we recently explained:

“ ‘[Legislative] immunity applies only to actions that are inherently legislative (policy-making) as opposed to administrative (policy-applying). Corn v. City of Lauderdale Lakes, 997 F.2d 1369 (11th Cir.1993). Thus, applications [emphasis in original] of general city policy to a specific party, even if undertaken by city officials who would be immune from suit for the creation [emphasis in original] of that policy, are not protected by legislative immunity. ...
“Grider v. City of Auburn, 628 F.Supp.2d 1322, 1336 (M.D.Ala.2009) (emphasis added except where otherwise indicated). ‘Acts of zoning enforcement rather than rulemaking are not legislative.’ Crymes v. DeKalb County, 923 F.2d 1482, 1485-86 (11th Cir.1991)(em-phasis added)(county commissioners who voted to deny a permit for the development of a landfill were not entitled to legislative immunity, because denial of the permit was the ‘application of policy to a specific party5); see also Front Royal & Warren County Indus. Park Corp. v. Town of Front Royal, 865 F.2d 77, 79 (4th Cir.1989) (“when municipal officials “do more than adopt prospective, legislative-type rules and take the next step into the area of enforcement,” ’ they cannot claim legislative immunity).”

86 So.3d at 30.

The complaints in the Montgomery action out of which this petition arises merely seek to enjoin the “enforcement of the Amendment and ... any and all further acts of the [members] ... to deny [the ASEA and PEBCO] ... the exercise of [their] legal, contractual, and property rights, and business relationship with Nationwide.” (Emphasis added.) See also respondents’ brief, at 10 (“ASEA and PEBCO therefore seek an injunction prohibiting the Amendment’s enforcement”). Section 36-26-6(b), Ala.Code 1975, which sets forth the powers and duties of the Board, authorizes the Board:

“(3) To make investigations, either on petition of a citizen, taxpayer or interested party, or of its own motion, concerning the enforcement and effect of this article and to require observance of its provision in the rules and regulations made pursuant thereto;
“(4) To conduct hearings and to render decisions, as provided in Section 36-26-27, [Ala.Code 1975,] on charges preferred against persons in the classified service;
“(6) To consider and act on such matters as may be referred to the board by the director.”

(Emphasis added.) Indeed, there is no dispute regarding the enforcement authority of the Board.

According to the ASEA and PEBCO, the Board has canceled the business relationship involving Nationwide, the ASEA, and PEBCO and similarly threatens to “deny ASEA the benefit and exercise of its legal, contractual and property rights and business relationships related to the 457 Plan.” Respondents’ brief, at 6. Elsewhere, they contend that the Board “purports to fundamentally change and, indeed, prohibit ASEA’s involvement with the 457 Plan, contrary to § 36-26-14.” Respondents’ brief, at 9.

Thus, the issue here is not — as the members attempt to present it — whether the Board in its purported legislative capacity could amend the 457 Plan without fear of legal reprisal but, instead, whether the members are immune in their enforcement capacities. Because the members’ challenged acts involve only enforcement of the amendment, it is unnecessary to affirmatively decide whether they had absolute legislative immunity to enact the amendment in the first place.

Moreover, although the members rely on Supreme Court of Virginia, they do so only for the proposition that legislative immunity bars actions for injunctive relief. They ignore that portion of the opinion holding that “enforcement officers and agencies ” are amenable to suit for “declaratory and injunctive relief.” 446 U.S. at 736, 100 S.Ct. 1967 (emphasis added). In fact, the members’ arguments entirely ignore the consequences of their enforcement actions on their immunity arguments. Consequently, they have failed to carry their burden of demonstrating a clear, legal right to relief on this ground.

B. State Immunity

Next, the members argue that they are entitled to absolute immunity under Ala. Const.1901, § 14, which provides “[t]hat the State of Alabama shall never be made a defendant in any court of law or equity.” It is well settled, however, that “[i]njunctive action may be maintained against a state official [in his official capacity], if the official is acting beyond the scope of his authority or acting illegally....” St. Clair County v. Town of Riverside, 272 Ala. 294, 296, 128 So.2d 333, 334 (1961). See also Alabama Dep’t of Transp. v. Harbert Int’l, Inc., 990 So.2d 831, 839 (Ala.2008); Wallace v. Board of Educ. of Montgomery County, 280 Ala. 635, 640, 197 So.2d 428, 432 (1967) (§ 14 does not prohibit actions to enjoin State officials from acting beyond their “lawful authority”). Whether the ASEA and PEBCO can prevail on the merits of this claim is not the issue. However, it is clear that § 14 does not bar a claim for injunc-tive relief under the posture of this case.

C. State-Agent Immunity

Finally, the members contend that they are entitled to State-agent immunity as expressed in Ex parte Cranman, 792 So.2d 392 (Ala.2000). Although Cranman has no application to claims against State officials in their official capacities — and the members do not contend that it does — they do argue that the claim in PEBCO’s complaint for injunctive relief is asserted against them in their individual capacities. However, in that connection, the ASEA and PEBCO insist that the “sole remaining claim is against [the members] in their official/representative capacities.” Respondents’ brief, at 24 (emphasis added). Actually, PEBCO’s complaint does not identify the capacity in which the defendants are sued.

In any event, a suit for injunctive relief against a State official in his or her individual capacity would be meaningless. This is so, because State officials act for and represent the State only in their official capacities. Consequently, the members are not aided by Cranman or its progeny.

III. Conclusion

In summary, the members have failed to establish a clear legal right to immunity under any of their espoused theories. Thus, they have not demonstrated that they are entitled to a writ of mandamus. The petition is, therefore, denied.

PETITION DENIED.

COBB, C.J., and LYONS, STUART, BOLIN, PARKER, and SHAW, JJ„ concur.

MURDOCK, J., concurs in the result.

SMITH, J., recuses herself.

      . PEBCO is a subsidiary of the ASEA.

      . This allegation is echoed in the complaint filed by PEBCO.

      . This request for relief is stated in the ASEA's complaint; it does not differ substantively from the corresponding request for in-junctive relief in PEBCO’s complaint.

      . According to the members, they are entitled to absolute legislative immunity because, they say, they “were performing a legislative function by voting as a Board on the Plan Amendment and were fulfilling their duties as Board members to cast a vote.” Petition, at 17.


author: PARKER, Justice.

text:
    Ex parte AMERICAN HERITAGE LIFE INSURANCE COMPANY (In re Vernon Day v. American Heritage Life Insurance Company et al.).
    1080868.
    Supreme Court of Alabama.
    March 26, 2010.

      David M. McDowell of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, for petitioner.
    Christina D. Crow and Nathan A. Dickson II of Jinks, Crow & Dickson, P.C., Union Springs, for respondent.
   PARKER, Justice.

American Heritage Life Insurance Company (“AHLIC”) petitions this Court for a writ of mandamus directing the Bullock Circuit Court to vacate its March 13, 2009, order denying AHLIC’s motion to sever the claims against it from the claim against David Garth, an inmate who attacked and injured the plaintiff, Vernon Day, a correctional officer, and to sever the claims. We grant the petition and issue the writ.

Background and Procedural Posture

On or about June 19, 2007, Garth, an inmate at the Bullock County Correctional Facility, allegedly attacked Day, a correctional officer at the facility. Day suffered fractures to his facial bones and his nose and broken teeth. At the time of the attack, Day had an “accident plan” insurance policy in effect with AHLIC. The policy covered Day’s family, and, as the insured, Day’s coverage included $20,000 for accidental death or dismemberment, $2,000 for a dislocation or fracture, $100 per day for hospital confinement, $100 for an ambulance benefit, $250 maximum for medical expenses, and $600 per month as a disability benefit. These amounts are subject to factors that depend on the injuries suffered. As a result of the attack, Day filed a claim for benefits under the policy, and on July 26, 2007, AHLIC paid Day $800.

On June 26, 2008, Day, dissatisfied with the amount of the benefit he received, sued AHLIC, Garth, and various fictitiously named defendants, claiming that AHLIC was guilty of breach of contract, bad-faith refusal to pay a just claim, bad-faith refusal to investigate a claim, and negligent and/or wanton hiring, training, and/or supervision. These were Counts I, II, III, and V, respectively, in his complaint. Count IV of the complaint asserted a tort claim against Garth for damages based on assault and battery.

On August 15, 2008, AHLIC filed a motion to sever the tort claim against Garth from the claims against it. It argued that there are no issues of law or fact common to the claims against it and the claim against Garth. Because the claims are separate and distinct, AHLIC argued, they were not subject to joinder under Rule 20, Ala. R. Civ. P., and it sought a severance under Rule 21, Ala. R. Civ. P. In its motion, AHLIC quoted from Ex parte Novartis Pharmaceuticals Corp., 975 So.2d 297, 299 (Ala.2007), to support its argument:

“ ‘In order to join defendants pursuant to Rule 20(a), both requirements imposed by the rule must be met: (1) the plaintiff must assert against each defendant a “right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences,” and (2) there will arise in the action “any question of law or fact common to all defendants.” A misjoin-der occurs if either of the Rule 20(a) requirements is not satisfied. Rule 21 ... provides for severance of claims if joinder of the claims was improper under Rule 20.’ ”

(Second emphasis added in petition.)

AHLIC further argued that it could not be held jointly or severally liable for Garth’s attack on Day. In support of the argument, AHLIC presented the elements of an assault-and-battery claim, which it quoted from Wright v. Wright, 654 So.2d 542, 544 (Ala.1995). It also quoted the elements of a breach-of-contract claim as defined by this Court in Congress Life Insurance Co. v. Barstow, 799 So.2d 931, 937 (Ala.2001), to show that the elements of the claims do not overlap, nor do the elements of the assault-and-battery claim overlap the elements of a bad-faith claim, as defined in National Security Fire & Casualty Co. v. Bowen, 417 So.2d 179 (Ala.1982), from which it also quoted. As to this argument, AHLIC’s motion to sever states:

“Elements of an Assault and Battery Claim (Defendant Garth). In Alabama, the elements of an assault and battery claim are as follows:
“ ‘[A]n intentional, unlawful offer to touch the person of another in [a] rude or angry manner under such circumstances as to create in the mind of the party alleging the assault a well-founded fear of an imminent battery, coupled with the apparent present ability to effectuate the attempt if not prevented. A successful assault becomes a battery, which consists of the touching of another in a hostile manner.’
“Wright v. Wright, 654 So.2d 542, 544 (Ala.1995).
“Elements of a Breach of Contract Claim (Defendant [AHLIC]). To establish a breach of contract claim, a plaintiff must prove: ‘(1) the existence of a valid contract binding the parties in the action, (2) [his] own performance under the contract, (3) the defendant’s nonperformance, and (4) damages.’ Congress Life Ins. Co. v. Barstow, 799 So.2d 931, 937 (Ala.2001).
“Elements of a Bad Faith Claim (Defendant [AHLIC]). In a ‘normal’ case of bad faith, a plaintiff has the burden of proving:
“(a) An insurance contract between the parties and a breach thereof by the defendant;
“(b) An intentional refusal to pay the insured’s claim;
“(c) The absence of any reasonably legitimate or arguable reason for that refusal (the absence of a debatable reason);
“(d) The insurer’s actual knowledge of the absence of any legitimate or arguable reason; [and]
“(e) If the intentional failure to determine the existence of a lawful basis is relied upon, the plaintiff must prove the insurer’s intentional failure to determine whether there is a legitimate or arguable reason to refuse to pay the claim.
“See National Sec. Fire & Cas. Co. v. Bowen, 417 So.2d 179 (Ala.1982).”

AHLIC argued in its motion to sever that, besides the fact that there is no overlap between the claims against the two defendants, there was no allegation that the two defendants acted in concert and its alleged misconduct had no legal effect on Day’s cause of action against Garth. AHLIC then quoted the holding of the Mississippi Supreme Court in an analogous case, Hegwood v. Williamson, 949 So.2d 728, 731 (Miss.2007):

“ “We find that the circuit court should have severed the claims. The third party tort claim against Williamson and the first party breach of contract and bad faith claims involve distinct litigable events. The claims against Williamson and State Farm arise out of separate allegations of wrongdoing occurring at separate times. While it is true that the genesis of both claims arose out of the accident, the two claims involve different factual issues and different legal issues. The car accident raises fact issues of how the accident occurred and legal issues of simple negligence (duty, breach of duty, proximate causation, and damages). The breach of contract and bad faith claims raise fact issues of what occurred between the two insurance adjusters and how they made their decisions and legal issues of interpretation of insurance policies and bad faith under which an award of punitive damages may or may not be appropriate. The negligence claim would be proven by different witnesses (the two drivers, eyewitnesses to the accident, law enforcement, and accident re-enactment experts) from that of the bad faith claim (insurance agents and management).’ ”

AHLIC argued in its motion to sever that although the injuries for which the claim for benefits was filed arose from Garth’s attack on Day, the claims involve “different elements of proof, different defenses, and different witnesses. [AHLIC] should be relieved of the potential prejudice and jury confusion, not to mention unnecessary expense, of having to defend [Day’s] breach of contract and bad faith claims in the context of a wholly unrelated violent assault and battery claim.”

On November 3, 2008, Day responded to AHLIC’s motion to sever, saying that his case is unlike Novartis, in which the plaintiffs sued 73 separate defendants that had “participated in ‘unrelated’ acts that were ‘coincidentally similar,’ ... but, instead [Day] joined two defendants whose actions were part of the same series of transactions or occurrences that injured [Day], As such, the joinder is proper.” Furthermore, Day quoted Ex parte Rudolph, 515 So.2d 704, 706 (Ala.1987), to argue that there “is no absolute rule for determining what constitutes ‘a series of transactions of occurrences.’ Generally, that is determined on a case by case basis and is left to the discretion of the trial judge.” Day argued that whether his injuries were caused by an accident is a question of fact common to both cases, as are the extent of his injuries, the amount of the medical bills, and whether those bills result from Garth’s actions. Day argued in his response that Garth set in motion a series of events that is the basis for the action and that AHLIC’s actions are merely another event in the series, as envisioned by Rule 20. Citing Brooks v. Paulk & Cope, Inc., 176 F.Supp.2d 1270, 1276 (M.D.Ala.2001), Day argued that Rule 20 does not require a basis for joint liability, but also allows joinder on the basis of several liability.

On November 5, 2008, AHLIC supplemented its motion to sever, arguing that there was no question of fact or law common to the claims against it and the tort claim against Garth. According to AHL-IC, Day’s allegation that the issue whether the assault on him was an accident, which, he says, gives the claims their commonality, was settled when AHLIC made payment under the accident policy. The extent of Day’s injuries is not a common issue of fact because, AHLIC argued, the policy limits define AHLIC’s liability at $2,000 for a dislocation or a fracture, adjusted to 15% of that amount for fracture of the bones of the face or the nose.

On March 13, 2009, the trial court denied AHLIC’s motion to sever without explanation. This petition follows.

In its petition, AHLIC states the issue as whether the trial court exceeded its discretion when it denied AHLIC’s motion to sever Day’s claims against it from Day’s tort claim against Garth. AHLIC argues that Day did not carry his burden under Rule 20(a), Ala. R. Civ. P., to demonstrate both that he had a right to relief from both defendants arising out of the same transaction or occurrence and that there existed a question of law or fact common to both defendants. Because of the alleged failure, AHLIC claims that it has a clear legal right to the relief sought. AHLIC claims that it has no other adequate remedy because, it says, unless mandamus relief is granted, it will be forced to defend the claims in a trial in which the jury will hear evidence of pain and suffering related to a violent assault that is the basis of Day’s claim against Garth and that is otherwise unrelated to his claims against AHLIC. AHLIC claims that it will be prejudiced if the case proceeds without a severance.

Standard of Review

“ ‘ “Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” ’
“Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala.2003) (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)). ‘A petition for a writ of mandamus is the appropriate means for challenging a trial court’s ruling on a motion to sever claims.’ Ex parte Alfa Life Ins. Corp., 923 So.2d 272, 273 (Ala.2005).”

Ex parte Novartis Pharms. Corp., 975 So.2d at 299. “[A] writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge. Ex parte Harrington Mfg. Co., 414 So.2d 74 (Ala.1982).” Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala.1987).

Analysis

Rule 20(a), Ala. R. Civ. P., provides, in pertinent part:

“All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action.”

This Court recently addressed a similar issue, saying:

“Rule 20(a) authorizes joinder of all persons ‘in one action as defendants if there is asserted against them ... any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants -will arise in the action.’ (Emphasis added.) Proper joinder requires satisfaction of both prongs of Rule 20(a). Ex parte Novartis Pharms. Corp., 975 So.2d 297 (Ala.2007).
“ ‘This Court has previously stated that “there is no absolute rule for determining what constitutes ‘a series of transactions or occurrences’ under Rule 20. Generally, that is determined on a case by case basis and is left to the discretion of the trial judge.” Novartis, 975 So.2d at 300 (quoting Ex parte Rudolph, 515 So.2d 704, 706 (Ala.1987) (emphasis added)). See also 7 Charles A. Wright, Arthur R. Miller, & Mary K. Kane, Federal Practice and Procedure § 1652, at 396 (3d ed.2001).”

White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1057-58 (Ala.2008).

Day presents two cases in support of his position that the claims against AHLIC and the claim against Garth arise from one series of occurrences and that a common question of law will arise in the action. Day first cites Ex parte Jenkins, 510 So.2d 232 (Ala.1987), in support of his position that his claims against both Garth and AHLIC arise from the same series of occurrences. In Jenkins, this Court denied a petition for a writ of mandamus that would have directed the trial court to vacate its joinder of medical-malpractice claims against doctors who had treated the plaintiff after his workplace injury. We said:

“The claims asserted by Gaston arose out of the same series of occurrences that began with his injury at his place of employment and continued with his resulting hospitalization and treatment for that original injury. The action filed by Gaston presents factual questions common to all defendants with regard to damages and proximate cause. Thus, under the provisions of Rule 20(a), [Ala.] R. Civ. P., the plaintiffs may join the defendants in one action.”

510 So.2d at 234 (emphasis added).

In Jenkins, the plaintiff suffered physical injuries in his workplace accident, and those injuries were allegedly exacerbated by the actions of the medical personnel who treated him for those injuries. Jenkins is clearly distinguishable from this case, in that AHLIC’s alleged breach of contract or bad-faith failure to pay or to investigate had no effect on Day’s injuries, the basis for permissible joinder in Jenkins.

Day next cites Guthrie v. Bio-Medical Laboratories, Inc., 442 So.2d 92 (Ala.1983), in support of his position that the “issue of damages common to all defendants [will make] the joinder proper even if the claims involved different theories of liability.” Day’s brief, at 8. In Guthrie, the plaintiff sued jointly a laboratory and group of physicians who had treated the plaintiff during her pregnancy, alleging that they had failed to prevent an Rh incompatibility between her and her child that resulted in brain damage to the child. The trial court severed the actions, but this Court held the joinder of the defendants proper:

“In the case at bar, the plaintiffs were clearly entitled to join the defendants in one action. (1) The complaint alleged that each defendant was negligent and that as a proximate result Andrea suffered brain damage. (2) The claims all arose out of the same series of occurrences, to-wit, Andrea’s conception, gestation, and birth. (3) There was but a single, indivisible injury to Andrea, which was allegedly caused by the negligence of one or more of the defendants. Therefore, there is a factual issue common to all defendants, the issue of damages.
“[Ala. R. Civ. P.] 20 was intended to abolish the technical objections to join-der previously existing, in order to prevent a multiplicity of actions and allow all parties interested in a controversy to proceed in one action. See Committee Comments to Rule 20. Forcing the plaintiffs to pursue two actions for Andrea’s injuries would create a risk of incurring inconsistent judgments. Requiring all the parties to proceed in a single action will promote consistency of results as well as judicial economy.
“Although factually accurate, the defendants’ argument that Bio-Medical’s alleged mistyping had no effect on the care and treatment provided by Doctors Birdsong, Ray, and O’Rear is unpersuasive. Nothing in the rules of civil procedure requires the allegedly negligent acts of all the defendants to be so intertwined. It is not essential to allege that the defendants jointly committed a single tort in order for the plaintiff(s) to properly join them in one action. It is sufficient to allege that successive torts concurred in producing the same indivisible injury. Brown v. Murdy, 78 S.D. 367, 102 N.W.2d 664, 667 (1960); Shawd v. Donohoe, 97 Ohio App. 252, 125 N.E.2d 368, 369 (1954).”

442 So.2d at 96 (emphasis added). Thus, for joinder to be proper, the facts underlying claims against disparate defendants must demonstrate “successive torts that concurred in producing the same indivisible injury.”

Here, there is little, if any, commonality between the claim against Garth and those against AHLIC. The claims against AHLIC assert claims sounding in contract, while the claim against Garth sounds in tort. The genesis of Day’s claim against Garth is Garth’s tortious assault and battery on Day, while the genesis of the claims against AHLIC is Day’s purchase of the accident-plan insurance policy from AHLIC. The actionable occurrence constituting the claim against Garth is the assault and battery, while the actionable occurrences constituting the claims against AHLIC were its alleged bad-faith refusal to investigate and to pay Day’s claim in violation of the terms of the insurance contract. Unlike the child in Guthrie, who suffered brain damage as the result of the negligence of multiple defendants, Day suffered an assault and battery at the hands of Garth and an alleged breach of contract at the hands of AHLIC.

The holdings in Jenkins and Guthrie that found joinder to be proper were based on the contribution of more than one defendant to “the same indivisible injury.” 442 So.2d at 96. We hold, therefore, that the joinder in this case was improper because Day suffered no indivisible injury to which both defendants contributed.

Conclusion

Because the claims asserted against AHLIC and the claim asserted against Garth do not meet the criteria for joinder set forth in Rule 20(a), Ala. R. Civ. P., the trial court erred in denying AHLIC’s motion to sever the claims. Because AHLIC has demonstrated a clear legal right to the relief sought, we issue the writ and direct the Bullock Circuit Court to vacate its order denying the motion to sever the claims and to enter an order severing the claims and the parties pursuant to Rule 21, Ala. R. Civ. P.

PETITION GRANTED; WRIT ISSUED.

STUART, SMITH, BOLIN, and MURDOCK, JJ., concur.

COBB, C.J., and LYONS, WOODALL, and SHAW, JJ., dissent.

      . The $2,000 benefit paid in the event of a dislocation or fracture was subject to a factor of 15% if the fracture was to the bones of the face or nose, so that here AHLIC multiplied $2,000 by 0.15 to yield a payment of $300.

      . Rule 20, Ala.R. Civ. P., provides, in part:
      "(a) Permissive Joinder.... All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action....
      "(b) Separate Trials. The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party, and may order separate trials or make other orders to prevent delay or prejudice.”

      .Rule 21, "Misjoinder and Nonmisjoinder of Parties,” provides:
      "Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.”

      . Some of the claims Day asserted against AHLIC in his complaint were based on its alleged failure to pay hospital benefits for his son, a claim unrelated to the assault by Garth. He “concede[d] that his claims against [AHL-IC] based upon failure to pay for hospital benefits for his son on the same policy do not relate to claims against [Garth].” Day’s brief, at 5 n. 1. AHLIC makes no argument to this Court about Day’s claims relative to his son.


author: BRYAN, Judge.

text:
    A.E.C. v. J.R.M., Jr., and J.A.M.
    2080065.
    Court of Civil Appeals of Alabama.
    July 17, 2009.

      Carl E. Chamblee, Jr., of Chamblee & Malone, LLC, Birmingham, for appellant.
    Randall W. Nichols and Anne Lamkin Durward of Massey, Stotser & Nichols, P.C., Birmingham, for appellees J.R.M., Jr., and J.A.M.
    Sharon E. Ficquette, chief legal counsel, and James E. Long, deputy atty. gen., Department of Human Resources, for ap-pellee Attorney General Troy King.
   BRYAN, Judge.

This is an adoption case in which A.E.C. (“the birth mother”) appeals the Jefferson Probate Court’s denial of the contest she filed challenging the adoption of A.J.M. (“the child”) by J.R.M., Jr., and J.A.M. (“the adoptive parents”). The birth mother’s contest and appeal are based, in large part, on her assertion that the prebirth-consent form used for the adoption is invalid.

On September 7, 2006, Jefferson County Probate Judge Mark Gaines signed an order confirming the prebirth consent for adoption signed by the birth mother. The order states, in part, that

“the Court having explained the legal effects of the execution of the consent/relinquishment herein, and of the time limits and procedures for withdrawal of the said consen t/relinquishment and the Court having provided the aforesaid expectant mother with a form for withdrawing the consent/relinquishment in accordance with Section[s] 26-10A-13[, Ala.Code 1975,] and 26-10A-14[, Ala.Code 1975], and the Court being satisfied that the aforesaid expectant parent fully understands the consent/relinquishment herein, and ha[s] executed it voluntarily and unequivocally .... ”

The birth mother signed the consent form, which stated in part:

“2. I am executing this document voluntarily and unequivocally thereby consenting to the adoption of said minor;
“3. I understand that by signing this document and the subsequent court order to ratify the consent, I will forfeit all rights and obligations to said minor unless said petitioner is my spouse; and that I understand the consent to adoption and execute it freely and voluntarily;
“4. I understand that the consent to adoption may be irrevocable, and I should not execute it if I need or desire psychological or legal advice, guidance or counseling;
“8. I understand that notice of withdrawal of consent must be mailed to the Probate Court of Jefferson County ... and that such withdrawal must be mailed within five days after birth of said minor or the execution of this document, whichever comes last....”

The birth mother signed an affidavit on September 7, 2006, stating that she had “received no money or other things of value or been paid for giving the said minor up for adoption.” Likewise, the adoptive parents signed an affidavit stating that they had “paid no money or other things of value to any party in connection with this adoption proceeding except that which has been approved by the Court.”

The child was born on December 20, 2006. On December 22, 2006, the adoptive parents took custody of the child at the hospital where the birth mother had delivered the child. The adoptive parents filed a petition for adoption on January 2, 2007. Also on January 2, 2007, 13 days after the child was born, the birth mother filed a petition to withdraw her consent for adoption.

On January 17, 2007, the probate court held an ore tenus hearing on the birth mother’s petition to withdraw consent; the probate court denied the birth mother’s petition because it was fatally defective in that it was not witnessed by two witnesses as required by § 26-10A-14(c), Ala.Code 1975. The birth mother filed a petition to contest the adoption on January 24, 2007.

On February, 16, 2007, the birth mother filed a motion for relief from the order dated January 17, 2007; the birth mother simultaneously filed a motion to alter, amend, or vacate the court’s order of January 17, 2007. In both, motions, the birth mother alleged that she gave two forms to the probate-court clerk in an attempt to withdraw her consent for adoption; however, she alleged, the probate-court clerk told the birth mother that she did not need to file the second form, which contained the signatures of two witnesses, as is required by § 26-10A-14(c). On June 4, 2007, the probate court granted the birth mother’s motions and scheduled a hearing on the birth mother’s petition to withdraw consent and her adoption-contest petition, pursuant to § 26-10A-24, Ala.Code 1975.

In the adoption-contest petition, the birth mother alleged that the adoptive parents had obtained her consent for the adoption by fraud, duress, mistake, or undue influence, and that, therefore, her consent is invalid pursuant to § 26-10A-14(a)(2), Ala.Code 1975. The birth mother further alleged that R.S., a family friend of the birth mother’s, was the agent of the adoptive parents and was also a perpetrator of the alleged fraud, duress, mistake, or undue influence.

On or about July 16, 2007, the birth mother requested visitation with the child. The probate court judge stated that Alabama’s Adoption Code, § 26-10A-1 et seq., Ala.Code 1975 (“the Adoption Code”), did not prescribe visitation with a natural parent, and he refused to grant visitation rights to the birth mother.

On August 15, 2007, the birth mother filed an amendment to her adoption-contest petition, alleging that § 26-10A-12, Ala.Code 1975, as applied in this case, deprived the birth mother of her constitutional due-process rights under the Fourteenth Amendment to the United States Constitution because, she said, the consent-for-adoption form she signed failed to give notice of all the withdrawal provisions contained in § 26-10A-13, Ala.Code 1975.

The probate court conducted an ore ten-us hearing on the birth mother’s withdrawal of consent and adoption contest over seven days during April and June 2008. On October 18, 2008, the probate court held that adoption of the child by the adoptive parents was in the best interest of the child; that § 26-10A-12 and § 26-10A-13 were not unconstitutional; and that “undue influence was not manifested by [R.S.] or any other person.” Thus, the probate court denied the adoption contest filed by the birth mother. The birth mother did not file any postjudgment motions. She filed her notice of appeal to this court on October 16, 2008.

The birth mother brings several issues on appeal. First, the birth mother argues that the prebirth consent for adoption was invalid, for the following reasons: 1) § 26-10A-12, Ala.Code 1975, is unconstitutional, 2) the probate court should have appointed a guardian ad litem (“GAL”) on behalf of the birth mother, and 3) the consent of the birth mother was obtained by fraud, duress, mistake, or undue influence. The birth mother further argues that the probate court erred in finding that R.S. was not the agent of the adoptive parents, that the probate court erred in failing to award visitation with the child to the birth mother, that the probate court erred in finding that gifts given to the birth mother by the adoptive parents were a “non-issue,” and that the probate court erred when it allowed the testimony of the adoptive parents’ expert, Dr. Karen Turnbow.

“ ‘Where a probate court hears ore tenus evidence on a petition for adoption, its findings and conclusions based on that evidence are presumed to be correct.’ K.P. v. G.C., 870 So.2d 751, 757 (Ala.Civ.App.2003). The ore tenus presumption of correctness arises because the trial court is in a position to observe the demeanor and behavior of the witnesses and is thus able to evaluate whether their testimony is credible and truthful. Ex parte Fann, 810 So.2d 631, 633 (Ala.2001); Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996). The trial court is able to make personal observations of the witnesses, while an appellate court has the benefit only of a cold transcript of the proceedings. Thus, neither this Court nor the Court of Civil Appeals may reweigh the evidence or sit in judgment of disputed evidence presented ore tenus, Ex parte Bryowsky, 676 So.2d at 1324-1326, and the trial court’s judgment based on ore tenus evidence will not be disturbed unless it is palpably wrong, manifestly unjust, or without supporting evidence. Samek v. Sanders, 788 So.2d 872, 876 (Ala.2000).”

Ex parte J.W.B., 933 So.2d 1081, 1087 (Ala.2005).

Further, our supreme court set forth the applicable standard of review of constitutional challenges in State ex rel. King v. Morton, 955 So.2d 1012, 1017 (Ala.2006), as follows: ‘“Our review of constitutional challenges to legislative enactments is de novo.’ Richards v. Izzi, 819 So.2d 25, 29 n. 3 (Ala.2001). Additionally, acts of the legislature are presumed constitutional. State v. Alabama Mun. Ins. Corp., 730 So.2d 107, 110 (Ala.1998).”

The probate court gave a detailed summary of its specific findings of fact in its final order as follows:

“The sworn testimony from the birth mother is that she began using illegal drugs when she was 16 yeárs of age. She used marijuana, cocaine, prescription pills (Xanax), LSD and ecstasy. By the time she became pregnant, she testified that she had been sexually active with ten men. The birth mother attempted suicide twice, in March and April, 2003, and cut herself with scissors when she was 16. As a teenager she told her parents that she was hearing voices, but now says that was not true. She testified that she was reaching out for attention. Upon learning that she was pregnant in May, 2006, her testimony was that she immediately stopped using all illegal substances. This appears to be undisputed.
“Her parents were having marital problems when [the birth mother] learned she was pregnant. Two days after finding out she was pregnant [the birth mother] moved back in with her parents; however, two days later her mother and younger sister moved out. [The birth mother] testified that her parents told her she needed to give up her baby for adoption. She also testified that her mother and father informed her that ‘it would be better if she found somewhere to live.’
“On or about May 30, 2006, [the birth mother] had a meeting with [R.S.], who was a longtime friend of [the birth mother’s parents. [The birth mother] has known [R.S.] since she was in the second grade. [R.S.] testified that he has known the birth mother’s father for 42 years. Through the years the two families went on vacations to the beach and to Disney World together. She recalls that [R.S.] informed her that he knew a wonderful couple who were looking to adopt a child.
“[The birth mother]’s father lost his job at some point in time and on or about June 16, 2006, he was admitted to a Birmingham hospital. Upon being released from the hospital after one week, her dad took her to Lifeline Village, a home for unwed mothers in St. Clair County, but she did not wish to stay there.
“At this point, the birth mother’s mom and younger sister were living in an apartment together, and her dad was still not doing well. [R.S.] attempted to arrange living arrangements for [the birth mother] with a couple and their daughter but that fell through. Finally, in early July, 2006, the birth mother moved in with [R.S.] and his wife and their daughter.
“[The birth mother] contends that [R.S.] exerted undue influence over her. Shortly after moving in with [R.S. and his wife] and their daughter, [the birth mother] went to Gulf Shores with them. [R.S. and his wife] paid for everything. The ... daughter and the ... son [of R.S. and his wife] and [the son’s] girlfriend were also at the beach with them. [The birth mother] also contends that [R.S.] was an agent of either the adoptive parents, the birth mother’s family or some group of people who were in favor of the adoption.
“A petition for pre-approval of fees was filed and the Court approved the payment in the amount of $798.00 for the adoptive parents to remit each month. [The birth mother] testified that the monthly payment was made to [R.S.], and he used the funds to pay her automobile note, cell phone and other bills. [The birth mother] was given the remainder as an allowance. The birth mother testified that she felt ‘controlled’ by [R.S.] during the months she lived with his family from July, 2006 through November 29, 2006. Beginning in August or September, [the birth mother] began spending weekends with her mother. Later, on or about November 29, 2006, she left [R.SJ’s home and moved in with her mother with whom she now has a good relationship.
“[The birth mother] and [R.S.] both testified that he solicited some contributions from men at his church, in November, 2006, to assist [the birth mother’s dad financially. [R.S.] also paid the tuition for [the birth mother]’s sister to continue attending ... School when she was a senior (which was in 2006 while [the birth mother] was residing with [R.S. and his] family). The tuition paid by [R.S.] was in the range of $6,000.00.
“[R.S.] has been active in his church for many years. He has known [the birth mother] and her dad and mom and sister for years. [The birth mother] grew up referring to [R.S.] as ‘Mr. B[.]’. [R.S.] has a long history of church and prison fellowship work. He testified that he made charitable contributions of $50,000.00 — $60,000.00 in 2007.
“[R.S.] testified that he never encouraged [the birth mother] to proceed with the adoption. He saw [the birth mother] after the delivery, and did not see any signs that [she] was having second thoughts. [R.S.] had supper with [the birth mother] on December 29, 2006, and he doesn’t remember her saying anything about changing her mind.
“[The birth mother] testified that [R.S.] and her dad were with her in the courtroom at the Pre-Birth Consent hearing before Probate Judge Mark Gaines. [The birth mother] testified that she began crying during the hearing. After a short break, she testified that Judge Gaines told her how proud he was of her, and that the baby would be taken care of. The attorney for [the birth mother] has raised the issue of the insufficiency of the wording in the execution of the prebirth consent. Through her attorney, [the birth mother] believes the ‘defect’ rises to the level of being unconstitutional.
“[The birth mother] is now attending [a] Community College and she lives with her mother and her sister. She testified that she is making good grades, and has taken parenting classes.
“The background on the adoptive parents, J.A.M. and J.R.M., Jr., is as follows: J.A.M., the adoptive mother, completed her education in 2000, in the field of occupational therapy. At the present time she does not work outside the home. J.A.M. was diagnosed with rheumatoid arthritis in 1997, which is controlled by medication. J.A.M. and J.R.M., Jr. were married in 2001. Her mom and dad reside in Virginia.
“J.R.M. Jr., the adoptive father, graduated from ... University, was honorably discharged as a Naval Officer, earned a graduate degree, and works in Birmingham where he was raised. The adoptive parents testified that neither has been arrested, received psychiatric treatment, or used illegal drugs. The parents of the adoptive father reside in Birmingham, and the parents of the adoptive mother visit from Virginia whenever possible.
“The birth mother’s OB-GYN, Dr. Ceciha Stradtman, testified during the hearing. Dr. Stradtman met with [the birth mother] on June 19, 2006, and said that [the birth mother] planned to give her child up for adoption from the beginning. Dr. Stradtman testified that the adoptive mother was a patient of hers in the past, and the birth mother’s mother is a patient of hers and a friend. Dr. Stradtman said that [the birth mother] was emotional throughout the pregnancy but ‘did quite well’. [The birth mother] was not under the influence of illegal drugs, and she was mentally competent during the pregnancy. Dr. Stradtman testified that during the pregnancy [the birth mother] did not mention any reservations about giving up the baby. She felt like [the birth mother] was making the decision with a clear mind and, while pregnant, wanted to do everything right for her baby. [The birth mother] never voiced any doubts to her, pre-birth, about the adoption. Dr. Stradtman delivered the baby on December 20, 2006. The doctor said that [the birth mother] was very emotional, post-birth.
“A child psychologist, Dr. Karen Turnbow, also testified at the hearing. Dr. Turnbow testified that ‘attachment develops most strongly over an extended period of time.’ She said that attachment refers to a child’s feelings toward parents. In positive attachment there is an impact throughout life. The majority of development occurs during the first year of life. The quality of care is the determining factor in a child’s first year, not whether the caregiver is the birth mother or adoptive mother and father. An infant relates by smell, touch, sound, and a broad spectrum of factors. Dr. Turnbow said that stability needs to be preserved for an infant. She stated that if an infant has positively attached to the caregivers, then, in that event, an infant would grieve and have a painful emotional response for the rest of its life were it removed from the caregivers.
“The attorney for [the birth mother] brought up the fact that the adoptive parents gave gifts to the birth mother during the pregnancy. The testimony and evidence were that the adoptive mother first met the birth mother in the hospital, post-birth, on December 22, 2006; however, a gift bag with candy, snacks, and school supplies was delivered to her in August, 2006, a pumpkin container with candy and snacks was delivered to her in October, 2006, a birthday card with Bath & Bodyworks lotion was delivered in November, 2006, a candle was delivered in December, 2006, and flowers were delivered, post-birth, to [the birth mother] in the hospital. The total cost of the items was slightly less than $112.00, with the flowers being the most expensive at a cost of $43.60.
“§ 26-10A-24 Code of Alabama 1975, says:
“ ‘(a) whenever a motion contesting the adoption is filed, the court shall set the matter for a contested hearing to determine:
“‘(1) whether the best interests of the adoptee will be served by the adoption;’
“The birth mother is a young woman who made some poor lifestyle choices prior to becoming pregnant. After-wards, during the most crucial time in her life, her parents’ marital discord reached a crescendo. Her mother and sister moved out and her father, having experienced job related and marital problems, was hospitalized. There was no safety net for [the birth mother]. The closest substitute was [R.S.].
“The birth mother has, it appears, matured and her life is more stable than it was in 2006.
“The adoptive parents are a little older than the birth mother, and they have maintained responsible, stable lives both prior to and since their marriage in 2001.
“Regarding the issue of the constitutionality of the pre-birth consent language, the Court will note that the language in question is set forth in § 26-10A-12, Code of Alabama, 1975, and was strictly adhered to in the case at hand. Attorney Bryant A. Whitmire, Jr. stated that he explained the five day/fourteen day distinction, and the best interests standard to [the birth mother] prior to the Pre-Birth Consent hearing, and that Judge Gaines explained § 26-10A-13 to [the birth mother] at the Pre-Birth Consent hearing.
“ § 26-10A-13 reads as follows:
“‘(a) A consent or relinquishment may be taken at any time, except that once signed or confirmed, may be withdrawn within five days after birth or within five days after signing of the consent or relinquishment, whichever comes last.
‘“(b) Consent or relinquishment can be withdrawn if the court finds that the withdrawal is reasonable under the circumstances and consistent with the best interest of the child within 14 days after the birth of the child or 14 days after the signing of the consent or relinquishment, whichever comes last.’
“The Court does not find § 26-10A-12 or § 26-10A-13 Code of Alabama, 1975, to be unconstitutional.
“The various connections between ... churches is interesting; however, with this being a private adoption which began within the ... community, it would follow that friendships would be intertwined in this matter. The breadth of the connections may be a bit unusual but the Court does not believe the interrelationships to be anything other than a series of circumstances. The ... Church issue does not support a conspiracy or support the presence of undue influence.
“The Court considers the candy and snacks to be a non-issue. The adoptive mother was merely attempting to be kind and supportive during the pregnancy, nothing more.
“[The birth mother] contends that [R.S.] exerted undue influence over her. Yet, [the birth mother], who was an adult, began spending weekends with her mother in August/September, and moved out of the [S.] residence on or about November 29, 2006, to live full time with her mother. [The birth mother] was not around [R.S.] for three weeks immediately prior to the birth. [R.S.] visited [the birth mother] in the hospital on the day of delivery, December 20, 2006, but he was not present on December 22, 2006, which was the day of the hand-off of the baby at the hospital from [the birth mother] to the adoptive parents. Regarding the agency contention, the court finds that [R.S.] was not working on behalf of anybody. At the time of the pregnancy, [R.S.] had known the birth mother for over a decade, and was a longtime friend of her dad and mom. [R.S.] was only trying to be helpful in the face of less than the best of circumstances. The Court finds that no other person or groups of persons were involved in any agency relationship.in any way.”

I. Validity of the Prebirth^Consent-for-Adoption Foivn

A. Constitutionality of § 26-10A-12

The birth mother argues that § 26-10A-12 is unconstitutional because the consent-for-adoption form found within that section failed to give her adequate notice of all the provisions for withdrawal of her consent, specifically, the provision found in § 26-10A-13(b), Ala.Code 1975.

Section 26-10A-13 sets forth the time limits for withdrawal of consent for adoption as follows:

“(a) A consent or relinquishment may be taken at any time, except that once signed or confirmed, may be withdrawn within five days after birth or within five days after signing of the consent or relinquishment, whichever comes last.
“(b) Consent or relinquishment can be withdrawn if the court finds that the withdrawal is reasonable under the circumstances and consistent with the best interest of the child within 14 days after the birth of the child or within 14 days after signing of the consent or relinquishment, whichever comes last.”

Section 26-10A-12 states, in pertinent part:

“(a) A consent of the natural mother taken prior to the birth of a child shall be signed or confirmed before a judge of probate. At the time of taking the consent the judge shall explain to the consenting parent the legal effect of signing the document and the time limits and procedures for withdrawal of the consent and shall provide the parent with a form for withdrawing the consent in accordance with the requirements of Sections 26-10A-13 and 26-10A-14.

“(c) Except as otherwise provided in subsection (d), the form for the consent or relinquishment or the withdrawal of the consent or relinquishment shall state in substantially the same form as follows:

“‘8. I understand that notice of withdrawal of [consent] [relinquishment] must be mailed to [_ (county where consent or petition is filed if known), Probate Court at the following address _] or [_ (name and address of agency with whom document is filed or the _] petitioners or their attorney if county where petition is filed is unknown) and that such withdrawal must be mailed within five days after the birth of said minor or the execution of this document whichever comes last.’ ”

(Emphasis added.)

The birth mother argues that the consent form she signed is constitutionally defective because it gave written notice of only the withdrawal provision of § 26-10A-13(a), the five-day withdrawal provision, but failed to give notice in writing of the withdrawal provision of § 26-10A-13(b), the option to withdraw consent for adoption after the fifth day following the birth of the child.

The probate court in its final order specifically found that Judge Gaines had explained § 26-10A-13 to the birth mother at the prebirth-consent hearing. That finding is supported by the testimony of the birth mother; she testified that Judge Gaines, during the prebirth-consent hearing,

“said that I had five days no questions asked, and then 9 days after those five to file my petition and you bring it up, and at that point you had to have a petition that had to be signed and filed by a certain time by the time the courthouse closed.”

Then, the birth mother stated that Judge Gaines had told her that after five days a different standard would apply, i.e., the best-interest standard, to determine what would be best for the child.

The birth mother also testified that she met with Francis Waller, a social worker, on August 25, 2006, before the prebirth-consent hearing. At that meeting, the birth mother signed a form that contained six statements. The birth mother testified that Waller reviewed the form with her. Two of the statements discussed the times for withdrawal, as follows: “Understand the time frames and way to change mind after signing consent (Days 1-5)” and “Understand that should I desire to revoke my consent for adoption on Days 6-14, I must go before the Probate Judge, who will then make a determination of whether or not to accept my revocation.” The birth mother initialed each statement, then signed the form at the bottom of the page.

The birth mother argues that the form provided by Waller did not give her proper notice of the withdrawal provision of § 26-10A-13(b) because it did not mention anything about the best-interest-of-the-child standard that would be applied during the days 6-14 withdrawal period. However, as previously discussed, the birth mother testified that Judge Gaines had told her about the best-interest standard during the prebirth-consent hearing.

The birth mother further testified that the two periods for withdrawing her consent had been explained to her several times. She stated that she withdrew her consent within 14 days after the birth of the child and that she did that because she knew there was a deadline. She testified that she knew that she would not have had to come to court if she had withdrawn her consent within five days after the child was born.

In light of the testimony of the birth mother and the findings of the probate court, we conclude that the evidence supports the probate court’s finding that Judge Gaines strictly adhered to § 26-10A-12 by explaining to the birth mother “the legal effect of signing the document and the time limits and procedures for withdrawal of the consent.” § 26-10A-12.

“The hallmarks of procedural due process are notice and ‘the opportunity to be heard “at a meaningful time and in a meaningful manner.” ’ ” Alabama Republican Party v. McGinley, 893 So.2d 337, 344 (Ala.2004)(quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), quoting in turn Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)).

The birth mother argues that her entire prebirth-consent form is invalid because the form failed to state, in writing, the provisions of § 26-10A-13(b), even though the birth mother testified that she had actual notice of the withdrawal provisions and the best-interest standard found in § 26-10A-13(b). Based on these facts, we conclude that § 26-10A-12 of the Adoption Code is not unconstitutional, as applied to the birth mother in this case, because, according to her own testimony, she had actual notice of the procedures for withdrawing her consent. The birth mother has taken advantage of her due-process rights by acting on her actual notice and withdrawing her consent to adoption within 14 days following the birth of the child; also, in furtherance of her due-process rights, the probate court provided the birth mother with a full opportunity to be heard on her petition to withdraw her consent and her adoption-contest petition. Due process guarantees no further protection. See Ex parte Jackson, 881 So.2d 450, 453 (Ala.2003) (“Due process requires notice and a hearing.”).

The final order of the probate court stated that the attorney for the adoptive parents, Bryant A. Whitmire, Jr., explained § 26-10A-13 and the best-interest standard to the birth mother before the consent hearing. Because Whitmire represented the adoptive parents throughout the adoption proceedings, including the birth mother’s adoption contest, we do not have the benefit of his testimony on the record. The briefs of the parties do not direct this court to any place in the record that confirms that Whitmire explained the best-interest standard to the birth mother before the consent hearing.

We conclude that the evidence does not support the probate court’s finding that Whitmire explained the best-interest standard to the birth mother before the consent hearing. However, that finding does not affect the outcome of this appeal because, as we explained above, we conclude that the birth mother was nonetheless aware of all the withdrawal provisions found in § 26-10A-13.

B.Failure to Appoint a GAL on Behalf of the Birth Mother

After a review of the record, we do not find anywhere in the record where this issue was presented to the probate court. The birth mother did not raise this issue in her adoption-contest petition or in her amended contest petition, and the probate court did not rule on this issue in its final order. See Norman v. Bozeman, 605 So.2d 1210, 1214 (Ala.1992) (“Our review is limited to the issues that were before the trial court—an issue raised on appeal must have first been presented to and ruled on by the trial court.”).

‘“We cannot put a trial court in error for failure to rule on a matter which, according to the record, was not presented to, nor decided by him ....’” Kyser v. Harrison, 908 So.2d 914, 918 (Ala.2005) (quoting Before v. Bourjois, Inc., 268 Ala. 228, 230, 105 So.2d 846, 848 (1958)). We conclude that the probate court did not commit error in failing to appoint a GAL on behalf of the birth mother.

C.Fraud, Duress, Mistake, or Undue Influence

Section 26-10A-14, Ala.Code 1975, sets forth the time limitations for withdrawing a signed consent-for-adoption form, as follows:

“a) The consent or relinquishment, once signed or confirmed, may not be withdrawn except:
“(1) As provided in Section 26-10A-13; or
“(2) At any time until the final decree upon a showing that the consent or relinquishment was obtained by fraud, duress, mistake, or undue influence on the part of a petitioner or his agent or the agency to whom or for whose benefit it was given.”

In her adoption-contest petition, the birth mother alleged that the adoptive parents personally, or through their agent, R.S., committed acts of fraud, duress, mistake, or undue influence in order to obtain her consent for adoption. On appeal, the birth mother alleges 15 specific examples of fraud, duress, or undue influence committed by the adoptive parents or R.S. However, since we are affirming the probate court’s finding that R.S. was not the agent of the adoptive parents (see section II., infra), we review only the claims of fraud, duress, and undue influence alleged by the birth mother on the part of the adoptive parents. In doing so, we keep the attendant presumption that, because the evidence was heard ore tenus, the probate court’s findings are presumed correct. K.P. v. G.C., 870 So.2d 751, 757 (Ala.Civ.App.2003).

First, the birth mother alleges that the adoptive father agreed to pay for the birth mother’s college education if she went through with the adoption. Although the birth mother stated that R.S. told her that the adoptive father would probably pay for her education if she went through with the adoption, the adoptive father testified that he did not recall agreeing to pay for the birth mother’s education and did not recall discussing the matter with R.S. R.S. also denied that the adoptive parents had ever said that they would pay for the birth mother’s education after the adoption went through.

Next, the birth mother argues that she felt “controlled” by the fact that the adoptive parents mailed the court-approved support payment to R.S., who then paid the birth mother’s expenses and gave the remaining amount to the birth mother as an allowance. R.S. testified that the birth mother’s mother put together a “starter kit” for him that contained all the birth mother’s bills that could be paid for by the court-approved support from the adoptive parents; some of the bills were already overdue, including the bill for the birth mother’s cellular telephone, which had been turned off. R.S. also testified that the payments from the adoptive parents on behalf of the birth mother were sent to him, at his private post office box, to protect the identity of the adoptive parents. R.S. gave the birth mother’s counsel a spreadsheet that accounted for “every penny” of the money sent to R.S. by the adoptive parents on behalf of the birth mother, to the satisfaction of the birth mother’s counsel.

The birth mother further argues that she suffered “pressures” at the hospital from the adoptive parents when she delivered the child. The birth mother insisted on handing the child directly to the adoptive parents at the hospital, despite their desire for confidentiality. Two days after the birth of the child the adoptive parents came to the hospital to take custody of the child; the birth mother testified that she was very emotional during this encounter. The birth mother further testified that she and the adoptive mother decided what outfit the child would wear and that anything said between the parties was very brief. The adoptive mother testified that when she and the adoptive father arrived at the birth mother’s hospital room, everyone was very emotional. She stated that she and her husband left the room for a short period so that the birth mother “could have a little bit more time with her mom.” The adoptive parents returned to the birth mother’s room after a nurse called them in; the birth mother handed the child to the adoptive mother, and, as they were leaving, the adoptive mother recalled the birth mother saying “thank you.” This event took place after the birth mother had signed the consent-for-adoption form, and it is unclear how it affected her decision to sign the prebirth-consent form three months earlier.

The birth mother also states that the number of telephone communications between R.S. and the adoptive parents, including a time of prayer together, is evidence of fraud, duress, or undue influence. The amount of communication between the adoptive parents and R.S. throughout the pregnancy in and of itself is not an example of fraud, duress, or undue influence. The testimony cited by the birth mother is of R.S. and the adoptive parents failing to recollect the specifics of their conversations; these are not examples of fraud, duress, or undue influence. The birth mother also points out that the adoptive parents provided lunch for R.S. and had a time of prayer with R.S. at some point during her pregnancy, but she fails to show how these circumstances amounted to fraud, duress, or undue influence on her.

Finally, the birth mother argues that the adoptive parents’ delay in taking the child to their home was “in recognition of [the birth mother’s] tentativeness.” The testimony of both of the adoptive parents was that they left the child with the adoptive father’s parents for several days after they took custody of the child because they knew that the birth mother had the absolute right to withdraw her consent to the adoption at any time during the five days following the birth of the child. They testified that it was to “protect their heart,” not because they knew that the birth mother was feeling tentative about going through with the adoption. Regardless, it is unclear how this act of the adoptive parents, which occurred after the birth mother had given her consent to the adoption some three months earlier, is an example of fraud, duress, or undue influence on the birth mother.

We note that the birth mother’s brief cites a single ease, Roper v. Lenoir, 243 Ala. 583, 11 So.2d 361 (1943), to support her assertion that the above-alleged “facts” are actually examples of fraud, duress, or undue influence. In that case, the appellant, a widow, wanted to cancel a deed in which she had gifted real estate to her nieces. The widow alleged that her attorney, who drew up the deed, had unduly influenced her; however, in holding that the attorney had not unduly influenced her, the court found that the attorney had acted under the widow’s orders, that his advice regarding the deed had not been sought or given, and that the widow had full knowledge of the transaction. The birth mother cites this case for the following statement:

“It is not essential that the grantees should have personally had any connection with the transaction. If another, standing in confidential relation to the grantor in position to exert a dominant influence, employs such influence in behalf of another, however innocent, the result is the same, where the grantee parts with nothing, as in case of a gift.”

243 Ala. at 584,11 So.2d at 362.

This statement would seem to support an argument that the acts of R.S., as an agent of the adoptive parents, could be attributable to the adoptive parents. However, it does not support an argument that, in the above instances, the adoptive parents exerted fraud, duress, or undue influence on the birth mother. We conclude that the record supports the dismissal of the birth mother’s adoption contest and the finding of the probate court “that undue influence was not manifested by [R.S.] or by any other person.”

II. Agency of R.S.

In her adoption contest, the birth mother alleged that R.S. and his family “provided for me shelter and sustenance during my pregnancy in exchange for placing my child for adoption” with the adoptive parents. She further stated that R.S. and his family “acted at all times on behalf of the prospective adoptive parents and acted to influence [the birth mother’s] action in favor of adoption.” She also stated in her petition that she “was at a loss of what to do, and I was made to feel that I had no other option but to place my child for adoption, or I would incur the ill will and disfavor of [R.S. and his family] and the adoptive couple and all their friends.”

The probate court found that, “regarding the agency contention, ... [R.S.] was not working on behalf of anybody,” and it further noted that “no other person or groups of persons were involved in any agency relationship in any way.” The only authority the birth mother cites to support her agency argument is Roper v. Lenoir, supra, as discussed above. Assuming R.S. was in a “confidential relationship] with the birth mother,” as discussed in Roper, 243 Ala. at 584, 11 So.2d at 362, the evidence does not indicate that he used that position to exert influence on the birth mother on behalf of the adoptive parents.

The evidence presented in the record supports the probate court’s finding that R.S. was not the agent of the adoptive parents. The record reveals that the adoptive parents saw R.S. as a representative of the birth mother and her family. The probate court specifically found that R.S. and his family were long-time friends of the birth mother and her family. The birth mother’s father and R.S. were “best friends,” and their families had been on vacations together to the beach and to Disney World.

The record indicates that R.S. first attempted to arrange for the birth mother to live with other friends but that, when that fell through, he offered his own home to the birth mother. We further note that the adoptive parents did not know R.S. before he contacted the adoptive father’s mother about the possible adoption.

The adoptive parents argue that “there is no citation to authority which would establish that any of the actions or inac-tions of R.S. and the adoptive parents indicate an agency relationship under Alabama law ....” We agree; the record supports the trial court’s finding that R.S. was not the agent of the adoptive parents and that he “was only trying to be helpful in the face of less than the best of circumstances.”

III. Visitation

The birth mother argues that the probate court erred when it found that it did not have authority under the Adoption Code to grant visitation with the child to the birth mother. The birth mother concedes that the Adoption Code does not expressly grant visitation rights to a natural mother during the pendency of an adoption contest.

The birth mother directs this court to § 26-10A-30, Ala.Code 1975, which grants visitation rights to the natural grandparents of an adoptee in a situation when “the adoptee is adopted by a stepparent, a grandfather, a grandmother, a brother, a half-brother, a sister, a half-sister, an aunt or an uncle and their respective spouses, if any.” The visitation rights may be granted “prior to or after the final order of adoption is entered .... ” § 26-10A-30. The birth mother argues that the probate court possesses equitable powers, but she cites no authority to support her implied assumption that this court can create visitation rights for a natural mother during a contested adoption proceeding when such rights were not prescribed by our legislature.

When the birth mother signed the pre-birth-consent form, she stated: “I understand that by signing this document and the subsequent court order to ratify the consent, I will forfeit all rights and obligations to [the child] ....”

This court has held that “ ‘[b]ecause adoption is strictly statutory and involves the curtailment of the fundamental rights of the natural parents, the adoption statute[s] must be closely adhered to.’ ” Shelley v. Nowlin, 494 So.2d 453, 455 (Ala.Civ. App.1986) (quoting Vice v. May, 441 So.2d 942 (Ala.Civ.App.1983), citing in turn Davis v. Turner, 337 So.2d 355 (Ala.Civ.App.1976)).

Further, “[i]t is not proper for a court to read into [a] statute something which the legislature did not include although it could have easily done so.” Noonan v. East-West Beltline, Inc., 487 So.2d 237, 239 (Ala.1986). If the legislature had intended to allow visitation between a birth mother and a child who is the subject of an adoption-contest proceeding, it could have provided for such visitation. Since the legislature has specifically granted visitation privileges, in certain circumstances, to certain family members of the adoptee’s natural family it is clear that the legislature considered visitation privileges for members of an adoptee’s natural family; apparently, however, it did not see fit to expand that privilege to the natural parents of the adoptee who have voluntarily consented to “forfeit all rights and obligations” to their child. See Ex parte Jackson, 614 So.2d 405, 407 (Ala.1993) (stating that the legislature “knew how to draft a statute to reach” a desired end and that “[t]he judiciary will not add that which the Legislature chose to omit”).

Therefore, we decline to hold the probate court in error for denying the birth mother’s request for visitation with the child during the pendency of the adoption contest.

IV. Gifts from the Adoptive Parents

The birth mother argues that “the gifts, money, notes, and influence from [R.S.] on behalf of the adoptive [parents] confused her feelings and made her feel obligated to go through with the adoption.” The birth mother argues that the adoptive parents signed an affidavit swearing that they “paid no money or other things of value to any party in connection with this adoption proceeding except that which has been approved by the Court” but that they then failed to disclose certain gifts that the adoptive parents had given to the birth mother during her pregnancy. In her brief, the birth mother calls this a “blatant omission” and evidence of the adoptive parents’ true intention to exert influence over the birth mother. However, the birth mother fails to address the corresponding affidavit that she signed, swearing that she had “received no money or other things of value ... for giving the said minor up for adoption.”

The probate court found that the gifts given to the birth mother by the adoptive mother were valued at approximately $112; the gifts included items such as candy, lotion, a candle, and flowers sent to the birth mother when she was in the hospital. The probate court found that “[t]he adoptive mother was merely attempting to be kind and supportive during the pregnancy, nothing more.” The evidence supports the probate court’s findings. The adoptive mother testified that she was raised to express appreciation by giving small gifts, and both of the adoptive parents testified that they did not consider the gifts to be of any monetary value, which is why they signed the affidavit swearing that they had not given anything of value to the birth mother.

In light of the mandates of the ore tenus rule, we assume that the findings of the probate court are correct if they are supported by the evidence. Meadows v. Meadows, 3 So.3d 221, 227 (Ala.Civ.App.2008). We conclude that the probate court did not err in finding that the small tokens of appreciation from the adoptive mother to the birth mother were not an attempt by the adoptive parents to influence the birth mother to consent to adoption.

V. The Testimony of Dr. Tumbow

Dr. Turnbow testified regarding bonding and separation issues of a hypothetical child that is the same age as the child in this case. She stated that, once a child attaches to its primary caregiver, the child would have a painful emotional response to being removed from its primary caregiver, even if the child was only 16 months old.

The birth mother argues that the probate court erred in allowing this testimony. In support of her argument, the birth mother cites Justice See’s concurring opinion in Ex parte C.V., 810 So.2d 700 (Ala.2001). Justice See stated that the child in question “ha[d] been in the custody of the prospective adoptive parents since shortly after his birth; that fact alone, however, does not provide a sufficient basis for terminating C.V.’s parental rights.” 810 So.2d at 704. The adoptive parents argue that the birth mother did not properly preserve this issue for appeal. We agree.

The birth mother filed a motion to exclude the testimony of Dr. Turnbow on April 7, 2008, approximately two weeks before the first hearing on the birth mother’s withdrawal of consent and adoption contest. In that motion, the birth mother alleged that Ex parte C.V. supported exclusion of Dr. Turnbow’s testimony because Dr. Turnbow was going to testify regarding separation and bonding issues between a child and its primary caregiver. The probate court denied the birth mother’s motion on April 11, 2008. At the subsequent hearing, Dr. Turnbow testified regarding separation and bonding issues without objection from the birth mother; further, counsel for the birth mother cross-examined Dr. Turnbow and asked several hypothetical questions regarding bonding and separation issues.

A “motion in limine” is defined by Black’s Law Dictionary 1038 (8th ed.2004) as “[a] pretrial request that certain inadmissible evidence not be referred to or offered at trial.” Although the birth mother’s pretrial motion to exclude Dr. Turn-bow’s testimony was not styled as such, we view the motion as a motion in limine. See Evans v. Waddell, 689 So.2d 23, 26 (Ala.1997) (“The substance of a motion and not its style determines what kind of motion it is.”). In Bolden v. Lang, 695 So.2d 54, 57 (Ala.Civ.App.1997), this court, quoting Parks v. State, 587 So.2d 1012, 1015 (Ala.1991), stated

“that in order to preserve the issue for appeal, the party who suffers an adverse ruling on a motion in limine must take some action at trial (whether it is to proffer the excluded evidence or to object to the proffered evidence and assign grounds) ‘unless he or she obtains the express acquiescence of the trial judge that a subsequent [proffer of the excluded evidence or] objection and assignment of grounds are not necessary.’ ”

Because the birth mother did not object to Dr. Turnbow’s testimony regarding separation and bonding issues at the hearing and because the record does not reflect that the birth mother obtained the “express acquiescence of the trial judge that subsequent objection and assignment of grounds [were] not necessary,” we conclude that the admission of Dr. Turnbow’s testimony has not been properly preserved for appeal.

The birth mother also mentions, in a heading in her brief to this court, that “Dr. Turnbow testified that [the birth mother] was not fit based upon her past medical psychological records, never having interviewed [the birth mother].” The birth mother offers no further argument and cites no authority in support of this claim. That is a violation of Rule 28(a)(10), Ala. R.App. P., because the birth mother fails to present “[a]n argument containing the contentions of the appellant ... with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and part of the record relied on.” Therefore, we will not consider this issue. See Moulton v. Moulton, 528 So.2d 887, 338 (Ala.Civ.App.1988) (“While an evidence question was also mentioned in the issue which was presented for our decision, that evidence problem was not argued and no citation of authority pertaining thereto was presented in the brief on appeal. Consequently, we cannot consider that evidence aspect.”).

This court is not without sympathy for a natural parent who changes his or her mind about giving their child up for adoption. However, “[a] natural parent’s mere change of mind cannot justify a rescission of the natural parent’s consent to an adoption provided the natural parent gave an informed, intelligent consent and all of the procedural safeguards were followed.” Good v. Zavala, 531 So.2d 909, 910 (Ala.Civ.App.1988) (citing Ex parte Nice, 429 So.2d 265 (Ala.1982)). The order of the probate court is due to be affirmed.

AFFIRMED.

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

      . The biological father of the child also signed a consent-for-adoption form, which was identical to the form the birth mother signed. The biological father did not withdraw his consent for adoption, and he is not a party to this action.

      . On July 21, 2006, the probate court approved the adoptive parents’ request to provide support to the birth mother in the amount of $798 a month; this amount was to cover the birth mother’s living expenses, such as transportation, utilities, food, and clothing.

      . Although Judge Gaines presided over the prebirth-consent hearing, Judge Alan L. King, also a probate judge in Jefferson County, presided over all subsequent proceedings in this case.

      . Section 26-10A-24 states, in pertinent part:
      "(a) Whenever a motion contesting the adoption is filed, the court shall set the matter for a contested hearing to determine:
      "(1) Whether the best interests of the adoptee will be served by the adoption.
      “(2) Whether the adoptee is a person capable of being adopted by the petitioner in accordance with the requirements of this chapter.
      "(3) Whether an actual or implied consent or relinquishment to the adoption is valid.
      “(4) Whether a consent or relinquishment may be withdrawn.”

      .The amended adoption-contest petition also alleged that the birth mother’s constitutional rights under the Fifth and Sixth amendments to the United States Constitution had been violated. However, the birth mother’s brief to this court does not address a constitutional argument regarding the Fifth and Sixth amendments; therefore, those issues are waived on appeal. Ex parte Riley, 464 So.2d 92, 94 (Ala.1985) ("[The] failure to argue an issue in brief to an appellate court is tantamount to the waiver of that issue on appeal.”).

      . The probate court, in its final order, held that § 26-10A-12 and § 26-10A-13 were not unconstitutional, and the birth mother appeals that holding. However, after reviewing the record, we note that the birth mother only challenged § 26-10A-12 as unconstitutional in her pleadings before the probate court. Further, the mother makes no argument in her brief to this court that § 26-10A-13 is unconstitutional; therefore, she has waived that issue. See Ex parte Riley, note 5, supra.

      . On appeal, the birth mother does not allege that any of the specific instances listed are examples of mistake.

      . Although we address the argument made by the birth mother regarding the allegations of fraud, duress, and undue influence, we note that the birth mother failed to provide a cogent argument in her brief to this court as to how the 15 specific situations she cites are examples of fraud, duress, or undue influence on the birth mother.


author: PER CURIAM.

text:
    Ex parte A.E.C. (In re A.E.C. v. J.R.M., Jr., and J.A.M.).
    1081452.
    Supreme Court of Alabama.
    March 19, 2010.
    Carl E. Chamblee, Jr., of Chamblee & Malone, LLC, Birmingham, for petitioner.
   PER CURIAM.

The petition for the writ of certiorari is denied.

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

WRIT DENIED.

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