author: MURDOCK, Justice.

text:
    Reginald K. HAYES v. Jo Ann HENLEY, individually and as personal representative of the estate of Earl Hoyt Henley.
    1100636.
    Supreme Court of Alabama.
    Sept. 23, 2011.
    Rehearing Denied Nov. 11, 2011.

      Michael G. Strickland of Strickland & Kendall, LLC, Montgomery, for appellant.
    Roger S. Morrow and Jada Price Loftin of Morrow, Romine & Pearson, P.C., Montgomery, for appellee.
   MURDOCK, Justice.

Reginald K. Hayes appeals from the dismissal by the Lowndes Circuit Court of his action against Jo Ann Henley (“Henley”), both individually and in her capacity as the personal representative of the estate of her deceased husband Earl Hoyt Henley (“Hoyt”), for injuries Hayes sustained when his automobile struck a horse on a highway. We affirm in part, reverse in part, and remand.

I. Facts and Procedural History

On October 24, 2008, then 19-year-old Hayes was driving his 1992 Mazda automobile on Alabama Highway 21 in Lowndes County when his automobile struck a horse. The horse rolled onto the roof of the automobile and the roof collapsed, breaking Hayes’s neck and rendering him a quadriplegic.

On October 20, 2010, Hayes filed in the Lowndes Circuit Court a multicount complaint against Mazda and against Henley, individually and in her capacity as the personal representative of the estate of her husband Hoyt, who died April 8, 2010 — approximately a year and a half after the accident. Hayes alleged that the horse he struck belonged to Hoyt and/or Henley and that Hoyt and/or Henley had allowed the horse to roam onto Highway 21, thereby causing the accident. As to Mazda, Hayes alleged that the automobile was defectively designed and/or manufactured and that it was not crashworthy.

On December 2, 2010, Henley filed a motion to dismiss the claims asserted against her as the personal representative of Hoyt’s estate, contending that Hayes had not alleged facts sufficient to state a claim upon which relief could be granted based on § 3-5-3, Ala.Code 1975. On the same date, Henley filed a motion to dismiss or, in the alternative, for a summary judgment as to the claims asserted against her in her individual capacity. Finally, Henley also filed an affidavit in which she testified that she “did not personally, individually or jointly own” any horses or pastures in Lowndes County and that she “did not knowingly or willfully place any livestock, including, but not limited to, horses on any Alabama roadway and/or highway.”

Hayes filed oppositions to both motions. Along with his opposition to the motion to dismiss as to Henley individually, Hayes’s counsel filed a Rule 56(f), Ala. R. Civ. P., affidavit requesting a continuance in order to take Henley’s deposition concerning the issue of the ownership of the horse Hayes struck with his automobile.

On February 2, 2011, the circuit court held a hearing on the two motions. On February 7, 2011, the circuit court entered two orders in which it granted Henley’s motions and dismissed the claims against Henley both in her individual capacity and in her capacity as personal representative of Hoyt’s estate. It does not appear that the circuit court ruled upon Hayes’s Rule 56(f) request for additional discovery.

On the following day, February 8, 2011, Mazda filed, pursuant to 28 U.S.C. § 1446, a notice of removal of the action to the United States District Court for the Middle District of Alabama (“the federal district court”). Mazda based the removal to federal court on diversity jurisdiction under 28 U.S.C. § 1332.

On March 1, 2011, Hayes filed a notice of appeal of the circuit court’s orders dismissing his claims against Henley in her individual and representative capacities.

On March 19, 2011, Hayes filed in the federal district court a motion to remand the action to the Lowndes Circuit Court. Subsequently, Hayes and Mazda reached a settlement concerning Hayes’s claims against Mazda. Accordingly, on April 29, 2011, Hayes and Mazda filed a joint stipulation of dismissal of the federal action with prejudice. On May 2, 2011, the federal district court entered an order dismissing with prejudice the removed action and denying Hayes’s motion to remand the action to the circuit court as moot.

II. Analysis

We begin by noting that Henley has filed a motion to dismiss Hayes’s appeal in which she contends that this Court lacks jurisdiction. The premise for Henley’s motion to dismiss this appeal is, in essence, the notion that the claims against Henley, though they had been dismissed by the Lowndes Circuit Court before the removal of the action to the federal district court, were somehow transferred with the action to the federal district court when the notice of removal was filed and that the federal court’s eventual order dismissing the action before it with prejudice put an end to the litigation between Hayes and Henley. We cannot accept the notion, for which we can find no authority, that the federal district court’s eventual dismissal with prejudice of the matter pending before it somehow served as a dismissal with prejudice of Hayes’s claims against Henley, a nondiverse defendant, claims that had been the subject of a dismissal order entered by the circuit court before the removal of the action to the federal district court — an order without which no removal could have occurred to begin with. Acceptance of Henley’s view would require us to understand the federal district court’s order as assuming jurisdiction over Hayes’s claims against an Alabama citizen, Henley, and adjudicating those claims on the merits, despite the fact that the presence of those claims in the action removed to the federal court would have defeated that court’s diversity jurisdiction.

Henley cites this Court’s decision in Weinrib v. Duncan, 962 So.2d 167, 169 (Ala.2007), for the proposition that, once a case is removed to federal court, a state trial court is divested of jurisdiction. Thus, reasons Henley, the claims against Henley necessarily were removed to the federal district court. Weinrib, however, involved a question as to whether a federal court’s eventual dismissal of removed federal claims, with respect to which it was exercising federal-question jurisdiction pursuant to 28 U.S.C. § 1381, should be deemed an “automatic” remand of state-law claims that did in fact travel with the removed federal claim to federal court as statutorily permitted “supplemental” state-law claims pursuant to 28 U.S.C. § 1367. That is not the procedural posture of the case before us; unlike Weinrib, the basis for removal jurisdiction in the present case is diversity, and, in such a case, the federal court has no “supplemental jurisdiction” over claims asserted against a nondiverse defendant. Moreover, unlike the claims asserted against the nondiverse defendant in the present case, the state-law claims at issue in Weinrib had not been dismissed by the state court before the removal of the case to federal court.

Although the federal district court here clearly could not and did not consider the claims asserted against the nondi-verse defendant and dismissed by the Lowndes Circuit Court to have been removed to it, a conclusion with which we agree, a complete understanding of the nature and extent of the case removed to and eventually dismissed with prejudice by the federal district court and, as a corollary, this Court’s jurisdiction over the present appeal, requires some discussion of the federal doctrine known as the “voluntary-involuntary rule” pursuant to which it appears the federal district court could have declined to exercise removal jurisdiction.

“[T]he long-standing, judicially created ‘voluntary-involuntary’ rule ... is a rule developed in diversity cases ‘that if the resident defendant was dismissed from the case by the voluntary act of the plaintiff, the case became removable, but if the dismissal was the result of either the defendant’s or the court’s action against the wish of the plaintiff, the case could not be removed.’ Weems v. Louis Dreyfus Corp., 380 F.2d 545, 546 (5th Cir.1967), quoting Note, The Effect of Section 1446(b) on the Non-Resident’s Right to Remove, 115 U. Pa. L.Rev. 264, 267 (1966).”

Insinga v. LaBella, 845 F.2d 249, 252 (11th Cir.1988) (footnote omitted).

“Behind the [voluntary-involuntary] rule is a notion of finality that is essential to ‘prevent removal to a federal court when the nondiverse party was eliminated by a state court order that might be reversed on appeal.’ 14 Wright, Miller & Cooper, § 3723. See also Weems v. Louis Dreyfus Corp., 380 F.2d 545 (5th Cir.1967).”

Barron v. Werner Enters., Inc., 462 F.Supp.2d 1217, 1219 (M.D.Ala.2006).

Federal courts have recognized that, without the voluntary-involuntary rule, the circumstance that in fact presents itself here — a dismissed claim being subject to reconsideration and appeal in a state court while the remainder of the action is being litigated in federal court—could occur. As the United States Court of Appeals for the former Fifth Circuit explained in Weems v. Louis Dreyfus Corp., 380 F.2d 545, 546 (5th Cir.1967):

“[The voluntary-involuntary rule] prevents removal of those cases in which the issue of the resident defendant’s dismissal has not been finally determined in the state courts. This avoids the duplication and expense which would result if a resident defendant was dismissed on an appealable ground, the nonresident was permitted to remove, and the plaintiff then obtained a reversal of the dismissal in the state appellate courts. On the other hand, that danger does not arise where a plaintiff voluntarily drops a resident defendant since appeal then is not available, and the elimination of the resident defendant from the case is final.”

(Emphasis added.) As the federal court put it in Ennis v. Queen Insurance Co. of America, 364 F.Supp. 964, 966 (W.D.Tenn.1973):

“The reason for the ‘voluntary dismissal’ rule is based on judicial efficiency. The voluntary dismissal of a resident defendant is not appealable. Such a dismissal finally determines who are the parties to the action in a state court proceeding immediately prior to removal to a federal court. The involuntary dismissal of a resident defendant, however, is appeal-able. Thus, an involuntary dismissal would involve the possibility of duplication and expense of an appeal being heard in state courts and the same proceeding being before the federal courts at the same time, if such a case could be removed to the federal courts.”

(Emphasis added.)

In Barron v. Werner Enterprises, Inc., the federal court considered a case that, like this one, involved an effort to remove an action to a federal court based on diversity jurisdiction within a short time following the state trial court’s dismissal of claims against Alabama residents and before the plaintiff had had an opportunity to ask the state trial court to reconsider that dismissal. The federal court explained:

“[The nonresident defendant] cannot, with removal, cut off [the Alabama plaintiffs] proper right to ask the state trial court to reconsider ... dismissal [of the Alabama defendants] and, failing in that effort, to ask the state appellate courts, including the Alabama Supreme Court, to review the action of the trial court. In short, [the nonresident defendant] cannot, by itself, foreclose any state appellate review of the state trial court’s action.”

462 F.Supp.2d at 1220 (emphasis added).

Of course, it is not for this Court to determine whether the federal district court should or should not have remanded this case based on the voluntary-involuntary rule. Our discussion of that rule is merely for the purpose of developing an understanding of the purpose and limitations of the rule, and particularly the fact that the federal courts that have developed and applied that rule understand it as a rule that, if not applied, would lead to duplicative litigation in federal courts in light of the fact that the dismissed claims remain for reconsideration or appeal in the state-court system. The voluntary-involuntary rule was not applied here, and, as a result, the claims against the nondiverse defendant previously dismissed by the state court did remain for reconsideration and appeal in the state-court system. We therefore proceed to consider the merits of Hayes’s appeal.

The claims alleged by Hayes against Henley in this case are subject to the restrictions imposed by Ala.Code 1975, § 3-5-3(a), which states:

“(a) The owner of such livestock or animal being or running at large upon the premises of another or upon the public lands, roads, highways or streets in the State of Alabama shall be liable for all damages done to crops, shade or fruit trees or ornamental shrubs and flowers of any person, to be recovered before any court of competent jurisdiction; provided, that the owner of any stock or animal shall not be liable for any damages to any motor vehicle or any occupant thereof suffered, caused by or resulting from a collision with such stock or other animal, unless it be proven that such owner knowingly or wilfully put or placed such stock upon such public highway, road or street where such damages were occasioned.”

(Emphasis added.) “The duty to fence livestock does not subject the owner to liability for damages or injuries to occupants of motor vehicles resulting from collisions of the vehicle with the livestock unless the owner knowingly or wilfully puts the livestock on the road.” Carpenter v. McDonald, 495 So.2d 640, 641 (Ala.1986).

“Our cases have consistently held that there is no cause of action under § 3-5-3 for a plaintiff-motorist who is injured because his car collided with livestock which had strayed onto a highway through the negligence, gross negligence or recklessness of its owner. In Randle v. Payne, 39 Ala.App. 652, 107 So.2d 907 (1958), where a bull owner was being sued under Code 1940, Tit. 3, § 79, (the predecessor of § 3-5-3) by the driver of a truck that collided with the bull on Highway 11, the Court of Appeals held: ‘There must be proof to the effect that the owner of the stock knowingly or wilfully placed the stock upon the public highway.’ Randle, supra, 39 Ala.App. at 656, 107 So.2d at 910. In McGough v. Wilson, 273 Ala. 179, 137 So.2d 43 (1962), which case likewise involved the collision of a motor vehicle and a bull on a public highway, this court took note of the Randle decision and stated: ‘[I]ts majority opinion held, in effect, that an owner of livestock is not liable in damages to a motorist involved in a collision with his livestock for negligence in permitting the stock to be on the highway in view of the statute.’ McGough, supra, 273 Ala. at 182, 137 So.2d at 45. In McGough this court added:
“ ‘Knowingly and willfully doing an act is different from inadvertently doing the same act, or permitting it to be done through inadvertence or negligence.’
“McGough, supra, 273 Ala. at 183, 137 So.2d at 46 (emphasis supplied).
“In reference to the two cases referred to above, the Court of Civil Appeals in Carter v. Alman, 46 Ala.App. 633, 247 So.2d 676 (1971), a factually similar case, stated:
‘These cases plainly state that for recovery, a motorist must submit proof that the owner of the feasant beast placed or put it upon the highway with a “designed set purpose, intention, or deliberation. Evidence of negligence or gross carelessness is not enough. There was no evidence introduced by appellant in the trial below with the slightest tendency to indicate acts of such nature by appel-lee.’
“Carter v. Alman, 46 Ala.App. at 635, 247 So.2d at 677 (emphasis supplied).”

Ex parte Jackson, 378 So.2d 1112, 1114 (Ala.1979).

Hayes’s complaint does not assert liability against Henley in her individual capacity other than as an alleged owner of the horse Hayes struck with his vehicle. As noted, Henley submitted an affidavit in which she testified that, at the time of the accident, she “did not personally, individually or jointly own” any horses or pastures in Lowndes County. Henley also averred that she “did not knowingly or willfully place any livestock, including, but not limited to, horses on any Alabama roadway and/or highway.” Rule 12(b), Ala. R. Civ. P., states:

“If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56....”

The record before us contains no evidence contradicting the above-quoted aver-ments in Henley’s affidavit, and there is no indication that the circuit court excluded these averments. Nor does Hayes’s brief to this Court make a cognizable argument that the circuit court erred in ruling upon Henley’s motion without first allowing Hayes some further opportunity to conduct discovery pursuant to Rule 56(f). Accordingly, the circuit court’s order disposing of Hayes’s claims against Henley in her individual capacity is due to be affirmed.

We cannot reach the same conclusion, however, as to the circuit court’s disposition of all Hayes’s claims against Henley in her capacity as personal representative of Hoyt’s estate. Unlike the evidence as to Henley, there is no evidence in the record indicating that Hoyt was not the owner of the horse in question, nor was there any evidence before the circuit court as to the state of his knowledge regarding the presence of the horses on the highway before the accident. Thus, we must evaluate whether the circuit court, without the aid of any “matter outside the pleading,” correctly disposed of the claims against Henley in her representative capacity, i.e., whether the allegations of the complaint were insufficient to state a claim under Alabama law. See Rule 12(b)(6), Ala. R. Civ. P.

The claim made in the complaint against Henley in her representative capacity is based on the allegation that either she, personally, or Hoyt was the owner of the horses at the time of the accident. In count V of the complaint, Hayes specifically alleges that the owner of the horses “knowingly and/or wilfully put or placed the horses on Highway 21 in Lowndes County, Alabama.” This allegation comports with the requirements of § 3-5-S(a), Ala.Code 1975. “Under Rule 8, Ala. R. Civ. P., a complaint is sufficient if it puts the defendant on notice of the claims against him.” Bethel v. Thorn, 757 So.2d 1154, 1158 (Ala.1999). Moreover, “ ‘ “a dismissal for failure to state a claim is properly granted only when it appears beyond a doubt that the plaintiff can prove no set of facts entitling him to relief.” ’ ” Boswell v. Liberty Nat’l Life Ins. Co., 643 So.2d 580, 581 (Ala.1994) (quoting Grant v. Butler, 590 So.2d 254, 255 (Ala.1991), quoting in turn Greene County Bd. of Educ. v. Bailey, 586 So.2d 893, 897 (Ala.1991)). Given Hayes’s allegations, it is possible that he could prove a set of facts under which Hoyt’s estate is liable for Hayes’s injuries. Accordingly, the dismissal of the claim against Henley in her representative capacity for failure to state a claim was error insofar as it concerned the allegations in count V of a knowing and willful placement of the horses upon the highway.

Based on the foregoing, we reverse the circuit court’s order as to Hayes’s allegation that Hoyt, as the owner of the horses, knowingly and willfully placed them upon the highway. In all other respects, we affirm the circuit court’s judgment.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MALONE, C.J., and WOODALL, BOLIN, and MAIN, JJ., concur.

      . Hayes alleges that more than one horse was on Highway 21 at or about the time of the accident.

      . 28 U.S.C. § 1332 states: "(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between — (1) citizens of different States.”

      . As noted, in Weinrib, this Court stated that once removal had occurred, the state trial court was divested of "jurisdiction” over the underlying case; as authority the Court cited the text of the federal removal statute, 28 U.S.C. § 1446(d), which states that, after removal is effectuated, the state court "shall proceed no further” unless and until the case is remanded. In Ex parte Metropolitan Life Ins. Co., 707 So.2d 229, 232 (Ala.1997) (quoting Doerr v. Warner, 247 Minn. 98, 106, 76 N.W.2d 505, 512 (1956), adopted by this Court in King v. Landrum, 370 So.2d 945 (Ala.1979)), however, this Court stated:
      " ‘It is well settled that jurisdiction once acquired by a state court is continuous though the case has been removed to the United States District Court and later remanded to the state court. The basic correctness of this rule becomes at once apparent if it is borne in mind that the order removing an action to a Federal court does not terminate the state court’s jurisdiction but merely stays or interrupts proceedings in that court pending a disposal of the action by the Federal court.’ ”
      The Court in Metropolitan Life also stated that, in adopting the above-quoted language in King, the Court "implicitly overruled an earlier line of cases holding that the proper removal of an action from a state court to a federal court immediately divests the state court of jurisdiction and mak[es] the subsequent action by the state court coram non judice." Metropolitan Life, 707 So.2d at 232.
      Because Weinrib is distinguishable from the present case on the grounds explained in the text, it is not necessary for purposes of resolving this case to consider further whether our jurisdictional statement in Weinrib should be revisited. Even if claims removed to a federal court are deemed to be within the "jurisdiction" of that court to the exclusion of the state court in which they originated, this principle could have no application to the claims here, which, unlike those in Weinrib, were dismissed by the state court prior to the removal of the case and, furthermore, were claims against a nondiverse defendant that, again unlike the claims in Weinrib, could not be deemed to have been removed to the jurisdiction of the federal court for adjudication on the merits without defeating the jurisdiction of that court.

      . The Insinga court also noted that "[w]hile the issue of finality/appealability may be one concern underlying the voluntary-involuntary rule, it is not the only one. There also appears to be a policy favoring a plaintiff’s right, absent fraudulent joinder, to determine the removability of his case.” Insinga, 845 F.2d at 253. See also Vogel v. Merck & Co., 476 F.Supp.2d 996, 1004 (S.D.Ill.2007) (citing several cases in support of the proposition that ”[t]he purpose of the [voluntary-involuntary] rule is to protect a plaintiff’s right to choose his or her forum”).

      . As one well known treatise has explained, the voluntary-involuntary rule is based on a notion of finality that is essential to "prevent[ ] removal to federal court when the non-diverse party was eliminated by a state court order that might be reversed on appeal,” 14B Charles Alan Wright et al., Federal Practice & Procedure § 3723 (2009), obviously referring to the possibility of a reversal on appeal in the state-court system given that a federal court's assumption of jurisdiction over a claim against a resident defendant would defeat the diversity jurisdiction of that very court. As the United States Court of Appeals for the Eleventh Circuit observed in Insinga, 845 F.2d at 252-53: "In most of the instances in which the Supreme Court has employed the voluntary-involuntary rule, it appears that the elimination of the resident defendants was not final at the time the issue of the propriety of removal was considered because the state appellate process as to those defendants was not complete.”

      . Indeed, it would appear that the reason the federal district court in fact saw no need to order a remand based on the voluntary-involuntary rule but instead found it appropriate to simply dismiss the action before it "with prejudice” and simultaneously deny Hayes’s motion to remand as "moot” is that the settlement and dismissal of the claims against Mazda happened so soon after removal (i.e., before the federal district court had an opportunity to rule upon the remand motion) and upon that dismissal the federal district court did not consider there to be any other claims remaining before it, thus making the motion for remand moot.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    A.K. v. HENRY COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2100313.
    Court of Civil Appeals of Alabama.
    July 29, 2011.
    Rehearing Denied Sept. 16, 2011.
    Certiorari Denied Nov. 10, 2011 Alabama Supreme Court 1101499.
    Dustin J. Fowler of Buntin, Etheredge & Dowling, LLC, Dothan, for appellant.
    Sharon E. Ficquette, gen. counsel, and Karen P. Chambless, asst. atty. gen., Department of Human Resources, for appel-lee.
   PITTMAN, Judge.

A.K. (“the mother”) appeals from a judgment of the Henry Juvenile Court terminating her parental rights as to N.K. (“the child”).

The child was born on March 29, 2009. On May 7, 2009, the Henry County Department of Human Resources (“DHR”) became involved in this matter after receiving a report of child neglect. As a result of DHR’s investigation, DHR implemented a safety plan that included placing the child in the custody of his maternal grandmother; the mother was also living in the home of the maternal grandmother. In May 2009, DHR and the mother collaborated to develop an Individualized Service Plan (“ISP”) for the mother. The safety plan was terminated in June 2009 after the maternal grandmother and the mother had violated its terms. The child was then adjudicated dependent and placed in foster care. On September 7, 2010, DHR petitioned to have the mother’s parental rights terminated as to the child. Following an ore tenus hearing, the juvenile court entered a judgment terminating the mother’s parental rights on December 8, 2010. The mother thereafter timely appealed. On appeal, the mother argues that DHR did not present clear and convincing evidence sufficient to support the juvenile court’s termination of the mother’s parental rights.

The standard of review applied by appellate courts in reviewing the propriety of decisions to terminate parental rights is well established. “The trial court’s decision in proceedings to terminate parental rights is presumed to be correct when the decision is based upon ore tenus evidence, and such a decision based upon such evidence will be set aside only if the record shows it to be plainly and palpably wrong.” Ex parte State Dep’t of Human Res., 624 So.2d 589, 593 (Ala.1993). That “presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility.” Ex parte Fann, 810 So.2d 631, 633 (Ala.2001).

This court has explained the juvenile court’s authority to terminate parental rights as follows:

“‘The right to maintain family integrity is a fundamental right protected by the due process requirements of the Constitution. Pursuant to this right, Alabama courts recognize a presumption that parental custody will be in the best interests of a child. This prima facie right of a parent to the custody of his or her child can only be overcome by clear and convincing evidence that permanent removal from the parent’s custody would be in the child’s best interest.... In making that determination, the court must consider whether the parent is physically, financially, and mentally able to care for the child. If the court finds from clear and convincing evidence that the parent is unable or unwilling to discharge his or her responsibilities to and for the child, his or her parental rights can then be terminated.... ’

“Bowman v. State Dep’t of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988) (citations omitted). The trial court’s decision to terminate parental rights, which is based on evidence presented ore tenus, is presumed correct and will be reversed only if the record demonstrates that the decision is unsupported by the evidence and is plainly and palpably wrong. R.B. v. State Dep’t of Human Res., 669 So.2d 187 (Ala.Civ.App.1995).

“To terminate parental rights, the trial court must first determine from clear and convincing evidence that the child is dependent. S.F. v. Dep’t of Human Res., 680 So.2d 346 (Ala.Civ.App.1996). The trial court must then determine that there exists no alternative to termination. L.A.G. v. State Dep’t of Human Res., 681 So.2d 596 (Ala.Civ.App.1996).”

M.W. v. Houston Cnty. Dep’t of Human Res., 773 So.2d 484, 485-86 (Ala.Civ.App.2000).

The juvenile court’s decision whether to terminate a parent’s parental rights is guided by Ala.Code 1975, § 12-15-319, which became effective January 1, 2009. Section 12-15-319 provides, in pertinent part, as follows:

“(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following:
“(2) Emotional illness, mental illness, or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of a duration or nature as to render the parent unable to care for the needs of the child.
“(7) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
“(9) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of support of the child, where the parent is able to do so.
“(10) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the Department of Human Resources, or any public or licensed private child care agency, and agreed to by the parent.
“(11) Failure by the parents to maintain consistent contact or communication with the child.
“(12) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”

It is also well recognized that, “[a]t some point, ... the child’s need for permanency and stability must overcome the parent’s good-faith but unsuccessful attempts to become a suitable parent.” M.W., 773 So.2d at 487 (affirming a judgment terminating parental rights of a mother who had made diligent efforts to visit her child and to comply with the Houston County DHR’s requests but had failed to establish a home and get a job over a period longer than three years); see also Talladega Cnty. Dep’t of Human Res. v. M.E.P., 975 So.2d 370 (Ala.Civ.App.2007) (holding that clear and convincing evidence mandated termination of parental rights when the children had already been in foster care for two and one-half years and would need to stay in foster care for additional months because their parents’ drug addictions and drug-related incarcerations had prevented them from being able to immediately establish a home and get a job, as required in order to be able to reestablish a familial relationship with the children). Applying the appropriate standard of review and the aforementioned principles of law, we address the merits of the mother’s appeal.

The record shows that, on May 7, 2009, the maternal grandmother filed a report alleging that the mother had not been taking care of the child, that she lacked basic parenting knowledge, that she did not have basic necessities such as diapers or clothing, that she had not taken the child to medical appointments in accordance with medical recommendations, and that she had not had the child’s pharmaceutical prescriptions filled. DHR had also received reports that the mother had been seen walking with the child in a stroller during both “the heat of the day” and in “rainy weather”; that the mother would leave the child with others for extended periods and would not return at the time that she had said she would; and that she had been “partying with [the child] present,” had been “out all night drinking,” and had been “smoking marijuana.”

Coincidentally, the mother was in DHR’s office at the time that the maternal grandmother’s report was filed, because, the evidence indicated, she was applying for food stamps or other assistance; DHR both met with the mother that day and visited the maternal grandmother’s home, where the mother was living with the child at the time. As a result of its investigation, DHR implemented a safety plan, and, pursuant to that safety plan, the child was placed in the custody of the maternal grandmother. However, that safety plan was terminated after the maternal grandmother violated its terms by allowing the mother to have an unsupervised overnight visitation with the child at the home of the mother’s then boyfriend in June 2009, just over a month after the plan had been put in place.

The ISP, which DHR and the mother had devised on May 11, 2009, included nine goals that “[the mother] was to work towards in an effort to regain custody of [the child].” Those goals included: undergoing both a psychological evaluation and psychological counseling; obtaining a general equivalency diploma (“GED”); obtaining employment; obtaining safe and affordable housing; obtaining the ability to provide basic parenting to the child and to provide for the needs for the child; and refraining from using drugs and engaging in criminal conduct. DHR and the mother met on five different occasions to review the terms of the ISP: on June 11, 2009, June 25, 2009, October 14, 2009, April 13, 2010, and October 6, 2010.

When DHR filed its petition to terminate the mother’s parental rights in September 2010, it averred that the child had been in foster care for more than 12 months; that the mother had “continue[d] to live an unstable life with no visible means of supporting herself or the ... child”; that the mother had failed to make any “progress toward self-sufficiency or stability” since DHR had begun working with her in May 2009; that “[DHR] ha[d] considered less drastic measures without success,” including relative placement; and that reasonable efforts to rehabilitate the mother had failed. The record on appeal includes a DHR report dated November 24, 2010, which was addressed to the juvenile court; in that report, DHR documented the mother’s efforts toward each goal identified in her ISP and opined that two goals had been “partially completed,” but it noted that other goals had been deemed “not completed.” Additionally, the record includes a transcript of the ore tenus hearing held on November 29, 2010, during which the court-referral officer assigned to the mother’s case, the DHR caseworker assigned to the case, and the mother testified.

The record reveals that DHR concluded that the mother had partially completed her goal of undergoing a psychological evaluation and counseling. The record shows that the mother began receiving treatment from Spectra Care in either July or August 2009, but the DHR caseworker testified that the mother’s receipt of treatment from that time through November 2010 had been “sporadic at best.” In April 2010, the mother was diagnosed as having a major depressive disorder, as having been a victim of sexual abuse as a child, and as suffering from mental retardation of an unspecified severity. The DHR report indicated that the mother had been prescribed medication for her depression but that she had reported to the caseworker that she did not take her medication regularly as prescribed.

The record also reveals that DHR concluded that the mother had partially completed her goal of attending the weekly scheduled visitation with the child. The record shows that the mother did not consistently attend the visitation sessions. DHR’s report indicates that DHR had rescheduled her visits and had offered to bring the child to locations that were convenient for the mother; specifically,. the report stated that the mother had requested that the visitations, which were originally scheduled for 8:30 a.m., be moved to the afternoon because, the report alleged, the mother had told representatives of DHR that she was not a “morning person.” The record also indicates that DHR had provided transportation to the mother for the visitations and that she was often late or not ready to be picked up on time. The mother, however, testified that her inability to attend visitations with the child had simply been caused by her lack of transportation.

The record undisputedly shows that the mother did not complete her goal of obtaining a GED. The record further reveals that, although the mother did enroll in GED classes, the caseworker testified that, to her knowledge, the mother “had ... attended not one class,” and that “[the mother] would show up when class was about to be over.” The caseworker further testified that “[the mother] would constantly tell [the caseworker] that [she was] going to school[,] ... [that she was] doing her homework, [and that she was] doing her lesson.” The caseworker stated that the mother had expressed an interest in taking a GED course on the Internet but that the mother had nonetheless led her to believe “that she was actually going to GED classes.” Moreover, the record contains no evidence indicating that the mother took any classes on the Internet. The mother testified that she had tried to attend the GED classes but that she had “worried] about what people ... would say about [her b]ecause [she had] been doubted all [of her] life.”

The record contains undisputed evidence indicating that the mother had not made progress in obtaining safe and affordable housing. The maternal grandmother had asked the mother to move out of her home in May 2009, after which the mother moved in with her then boyfriend and his mother until November 2009. The mother rented a two-bedroom mobile home from November 2009 until August 1, 2010, at which time she was evicted as a result of difficulty paying rent and bills; DHR’s report stated that police officers had been called to the home “on numerous occasions” regarding domestic disputes. The mother testified that she had taken good care of the home, but she admitted that the water had been turned off at one point while she had lived there. Between the time that she was evicted and November 14, 2010, the mother lived on and off with her former boyfriend and his mother, and she lived for approximately one month in a hotel with a male, whom she described as a “friend.” The caseworker testified that the mother had spent a few nights with her aunt as well. On November 14, 2010, the mother was arrested and placed in the Houston County Jail on a no-bond status because she had failed to pay fines and court costs that she owed. The caseworker testified that she had taken the mother to Barbour County to apply for government-assisted housing when DHR had first become involved in the case; that application appears to be the only instance where the mother sought any form of government-housing assistance.

The record reveals that the mother and DHR disagree as to whether the mother made efforts toward obtaining employment. DHR’s report states that that goal was not completed. The record reveals that the mother had worked unsuccessfully as a cosmetics-sales representative for a short period, and that she had thereafter worked as an entertainer at an exotic dance club for two or three months, but that her employment had ended when the club owner was forced to terminate the employment of all the dancers. The record further shows that DHR had assisted the mother in applying for Supplemental Security Income (“SSI”) benefits based on her low intellectual capacity and mental diagnosis. At the time DHR filed its petition to terminate the mother’s parental rights and at the time of trial, the mother’s application was still pending.

The record shows that DHR concluded that the mother had not demonstrated the basic parenting skills and the ability to provide for the child’s basic needs, including stability. The mother was supposed to enroll in parenting classes, but she never did; it appears that the mother was ineligible to enroll in one of the two programs in which she was encouraged to participate because it involved a DHR caseworker working together with a new mother in a home with the pertinent child and, at that time, the mother did not have a home or custody of the child. The caseworker testified that the only form of child support provided by the mother had been a payment of $50. The mother testified that she had sent clothes and a Christmas present to the child, and that she had thrown a birthday party for him. The caseworker further testified that she had no personal knowledge that, while in the custody and under the care of the mother, the child had been in any real danger. However, the caseworker explained, the child had been unhealthy at the time he was placed in the custody of DHR; she stated that the mother had missed two doctors’ appointments within the first 21 days after the child was born and that the mother had not filled his pharmaceutical prescriptions. Those appointments that the mother had missed were follow-up appointments that had been scheduled because results of the child’s blood tests, taken when he was born, had concerned his doctors. The mother testified that she loved the child and wanted a second chance to be a parent. The caseworker testified that DHR had scheduled appointments for the mother at the WISE Center, an entity that helps mentally retarded parents gain parenting skills, and that the mother had never attended those appointments; the mother testified that the WISE Center had never been mentioned to her as a resource, but she admitted that she had been instructed to enroll in parenting classes.

The record contains undisputed evidence indicating that the mother failed to refrain from using illegal drugs and from engaging in criminal activity. DHR summarized that, since her ISP was first devised, the mother had been named as the aggressor in domestic disputes; had been arrested four times on charges of obstruction of justice (giving police a false name), public intoxication, disorderly conduct, and failure to appear in criminal court; and had failed drug tests. The court-referral officer, who had administered the mother’s drug tests, testified that the mother had failed drug tests in January 2010, February 2010, March 2010, and June 2010; he stated that she had passed only two of the tests that he had given her, in April 2010 and May 2010. During the mother’s testimony, the juvenile-court judge asked the mother directly whether she had been “clean” for more than 80 days and whether she would be able to pass a drug test if given one that day; the mother responded that she thought so, but she noted that she had been around other people smoking a purportedly legal form a marijuana earlier in the month. Following a short recess, a drug test administered to the mother that day revealed traces of marijuana in the mother’s body. At that time, the mother admitted to the juvenile court that she had smoked marijuana the week before, just before having been taken into custody at the Houston County Jail.

At trial, the caseworker testified that DHR had looked into relative placement as an alternative to terminating the mother’s parental rights, but she stated that there were no viable alternatives to termination. Moreover, the mother offered no potential relative resources during trial.

The record contains undisputed evidence indicating that the mother has a limited intellectual capacity. The results of the mother’s psychological evaluation conducted in November 2009 revealed an intelligence-quotient (“IQ”) score of 62, which places her in the lower half of the “intellectual-deficit” range of intellectual abilities. The court-referral officer opined that the mother “was intent on wanting to” achieve the goals set in her ISP, but he stated that he “[did not] really think she was capable of doing them.” He further testified that the mother “appeared to be functional” and “intelligent enough to understand what [they had] talked about.” However, he stated that he did not think that she could follow through with things that she needed to do.

The caseworker testified that she had realized early in working on the case that the mother was unlikely to be able to reach the goals outlined in her ISP because, she said, “[the mother] does not have the mental/intellectual ability to be able to take care of [the child].” Specifically, the caseworker opined that she “[did not] even think [the mother was] capable of getting a GED” or of learning basic parenting skills. The caseworker stated that “[the mother had] tried, as best her ability [had] allow[ed] her to,” to accomplish the ISP goals, but she opined that the mother’s ability to do those things necessary to regain custody of the child was limited because of her low IQ.

The caseworker clarified that it was not DHR policy to remove children from homes where a parent had an IQ within the mental-retardation range and that, in fact, some parents with IQs similar to the mother’s had been able to maintain custody of their children. Additionally, the caseworker testified that she had worked with DHR for two years and that this case was the first time she had ever dealt with a parent whose IQ fell in the mental-retardation range while working for DHR; nonetheless, the caseworker stated that, although she had done her best in trying to rehabilitate the mother, the mother simply lacked the physical or the financial ability to care for the child. When asked whether she had sought assistance from agencies that help mentally retarded parents gain parenting skills, she stated that she had made appointments for the mother at the WISE Center but that the mother had not kept those appointments.

In her brief, the mother contends that, because evidence was adduced indicating that “the child was [n]ever in danger when [she was] with the mother” and that DHR had set up an ISP that was impossible for the mother to fulfill, DHR failed to show that the mother’s circumstances were such that she could not be rehabilitated so as to be able to regain custody of the child. The mother argues that the termination of her parental rights was premature, given the goals in the ISP and the fact that the child was removed from her custody at the age of 21 days. The mother relies on three cases in which this court has reversed a juvenile court’s judgment terminating parental rights on the ground that the termination was premature: R.F. v. State Dep’t of Human Res., 740 So.2d 1093, 1094-95 (Ala.Civ.App.1999), K.M. v. Shelby Cnty. Dep’t of Human Res., 628 So.2d 812 (Ala.Civ.App.1993), and T.D.M.V. v. Elmore Cnty. Dep’t of Human Res., 586 So.2d 931 (Ala.Civ.App.1991).

In R.F., 740 So.2d at 1094-95, we reversed a judgment terminating parental rights when a parent had not been alleged to have abused or neglected the child and when the termination claim had been prosecuted by the guardian ad litem over the objection of the Cullman County DHR; we held that the termination had been premature because the mother, who was 15 years old and was herself in the custody of the Cullman County DHR, had not yet had the opportunity to be a parent. Similarly, K.M. also involved a mother who was in foster care at the time she had the pertinent child; in that case, we reversed the termination of the mother’s parental rights because, despite the mother’s irresponsible behavior, the mother had visited the child daily; had expressed a desire to finish school but had not been given the opportunity to do so; and had developed a relationship with the child by bathing, feeding, and taking the child to the doctor and to church regularly. In T.D.M.V., the children’s maternal grandmother had indicated a willingness to help the mother care for the children, but no one had ever been to her home to investigate her as a source for relative placement; we held that, “[w]hile the record [did] not indicate that the mother [was] a model parent, there was evidence ... that the mother wanted to improve her situation in order to reunite with her children.” 586 So.2d at 933.

We begin by rejecting the mother’s argument that the termination in this case was premature. Although it is true that DHR became involved in this case when the child was 21 days old, the child was placed in foster care on June 25, 2009, when the child was almost 3 months old. DHR did not immediately place the child in foster care; instead, it placed the child in the custody of the maternal grandmother, in whose home both the mother and the child were living at the time. DHR’s implementation of that safety plan was hardly a drastic move, and DHR certainly did not deprive the mother of an opportunity to demonstrate whether she was fit to be a parent.

Additionally, the facts of this case are distinguishable from the facts of the cases cited in the mother’s brief. R.F. and K.M. involved mothers who had demonstrated a desire to acquire those skills necessary to provide for their children but who had been prevented from doing so because of the mothers’ young ages. In both cases, 'there was no evidence indicating that they would not be able to provide for their children if given the opportunity to do so. T.D.M.V. is also distinguishable from this case because, in that case, the evidence revealed that the mother’s difficulty finding a job and housing was largely due to her lack of transportation. Additionally, in T.D.M.V., at the time of trial, the mother had obtained employment. It was further shown that the Elmore County DHR had not exhausted all viable alternatives to termination of the mother’s rights as to the children because the maternal grandmother in that case had testified that she had expressed a willingness to help the mother raise the children but had never been contacted or investigated by the Elmore County DHR.

In this case, the mother made no effort to enroll herself in parenting classes, despite her testimony that she knew DHR expected her to do so if she wanted to regain custody of the child. The mother also did not consistently receive counseling as she had been instructed to do. The mother, after being evicted in August 2010, also made no effort to obtain safe and affordable housing; instead, the mother seems to have bounced back and forth between male “friends.”

In her brief, the mother claims that to affirm a decision to terminate a parent’s rights when that parent had only partially achieved “unrealistic goals” would set “a dangerous precedent.” The mother’s argument wholly fails to account for evidence indicating her own lack of effort exerted toward achieving the goals in her ISP. Although the mother argues that obtaining a GED was an unrealistic goal, the record reflects that she never attended any classes; moreover, the caseworker testified that, when she had discussed the topic of GED classes with the mother, the mother had never expressed discontent or frustration but had instead lied about having attended lessons and having done homework. The juvenile court could properly have deemed the mother’s lack of effort indicative of her unwillingness to act in the interest of regaining custody of the child.

Perhaps the most compelling evidence in the record supporting the juvenile court’s judgment, which evidence is also entirely unaddressed by the mother in her brief on appeal, is the evidence of the mother’s drug use. The mother continued to use marijuana throughout the entire period the child was in DHR custody, failing four of six drug tests, all the while admittedly being aware that doing so would be viewed adversely against her in a bid to regain custody of her child.

In her brief, the mother appears to overlook the well established law in Alabama that a juvenile court is required to evaluate “the parent’s physical, financial, and mental abilities to care for the child.” C.W. v. State Dep’t of Human Res., 826 So.2d 171, 172 (Ala.Civ.App.2002). We have recognized that “a parent’s mental ability is germane to a determination of who should receive custody of a dependent child and whether parental rights should be terminated.” D.A. v. Calhoun Cnty. Dep’t of Human Res., 892 So.2d 963, 966 (Ala.Civ.App.2004). In D.A., we affirmed a judgment terminating a mother’s parental rights when the record supported a finding that the mother’s mental condition prevented her from raising her children by herself. 892 So.2d at 966. In that case, the record showed that “[the mother] attended parenting classes; ... maintained supervised visits three times a week with the children; ... held a job for eight months; ... attended counseling sessions; and ... furnished and paid all the utility bills on an apartment for four months before the termination hearing.” 892 So.2d at 966. In D.A., the mother demonstrated a much more sincere desire to raise her children and put forth a more substantial effort than the mother in this case. It is further notable that, in D.A., the mother had a measured IQ of 70 (a figure somewhat higher than the IQ of the mother in this case).

Here, the record adequately supports the conclusion that the mother’s failure to achieve the goals set forth in her ISP was not predetermined by her circumstances but, rather, was the result of her lack of effort and could even be viewed as demonstrative of an indifference toward her responsibilities and the law. In light of the evidence of the mother’s drug use, her failure to attend GED classes, her prevarication in reporting to DHR her progress in obtaining her GED, her failure to enroll in parenting classes, her failure to make progress toward securing appropriate housing, and her limited intellectual capacity, we hold that the juvenile court’s judgment terminating the mother’s parental rights is properly supported by the record.

AFFIRMED.

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

      . The juvenile-court judge certified the record as adequate for appellate review pursuant to Rule 28(A)(1)(a), Ala. R. Juv. P.

      . DHR’s report also stated that the mother had been advised to enroll in classes held at night because of her difficulty attending the other classes but that she had never enrolled in the night classes.

      . The caseworker stated that she had worked with "a lot” of people whose IQs fell in the mentally retarded range before she had come to work for DHR.


author: THOMAS, Judge. MOORE, Judge, BRYAN, Judge,

text:
    Kenneth BRANTLEY v. Cathy Annette GLOVER.
    2100378.
    Court of Civil Appeals of Alabama.
    Aug. 12, 2011.
    Rehearing Denied Nov. 10, 2011.

      Cheryl Baswell-Guthrie of Baswell-Guthrie, P.C., Huntsville, for appellant.
    John Wyly Harrison, Huntsville, for ap-pellee.
   THOMAS, Judge.

Kenneth Brantley appeals from the denial of his motion to set aside a default judgment entered in favor of Cathy Annette Glover by the Limestone Circuit Court. We affirm.

Glover purchased a used manufactured home from Brantley. The manufactured home, which Brantley had purchased in Tennessee and which was licensed in Tennessee, was located in Ardmore. In March 2006, in conjunction with the purchase, Glover signed an installment payment agreement (“the agreement”), agreeing to pay Brantley 16 monthly payments of $350 beginning on or before April 30, 2006, and ending on July 30, 2007. Glover was also required to make a final $250 payment by August 30, 2007. The agreement further provided that Glover would incur a $35 late fee for any payment that was 10 days past due and that if Glover defaulted on the agreement the entire remaining balance under the agreement would be immediately due. Glover and Brantley entered into the agreement in Alabama.

In April 2008, Glover filed a complaint in the trial court requesting an accounting and declaratory relief. In her complaint, Glover alleged that she had paid all the amounts due under the agreement; however, she alleged, Brantley was still demanding $2,131 in satisfaction of the agreement. Glover requested that the trial court review the agreement, her account statements, and other evidence and determine whether Glover owed any additional moneys to Brantley under the agreement.

Brantley, acting pro se, answered Glover’s complaint on May 1, 2008. In his answer, Brantley alleged that Glover had made only IB of the required 16 $350 monthly payments and that 6 of those payments had been more than 10 days late, which resulted in the assessment of late fees. Brantley alleged that Glover still owed $906.02 in payments and $1,050 in late fees, pursuant to the terms of the agreement. Brantley attached to his answer a statement listing Glover’s payment history along with correspondence he had sent Glover regarding her alleged late and overdue payments.

On June 29, 2010, Glover amended her complaint, adding a claim under the Alabama Litigation Accountability Act, codified at § 12-19-270 et seq., Ala.Code 1975 (“the ALAA”), alleging that, based on the documentary evidence submitted by Brantley and the documents submitted by Glover, there was no ground on which Brantley could oppose the relief requested by Glover. Glover requested that the trial court award Glover an attorney fee.

The trial court set a hearing for September 28, 2010. On September 13, 2010, counsel for Glover mailed a letter to the trial court, in which he stated that he had a scheduling conflict between the hearing in this case and a hearing in another case; Brantley received a copy of this letter. The trial court held its hearing on September 28, 2010. Glover and her counsel were present at the hearing; Brantley was not present.

On October 6, 2010, the trial court entered a default judgment declaring that Glover had paid in full all amounts due under the agreement and that no unpaid balance remained and transferring title to the manufactured home to Glover. The trial court further awarded Glover $3,151.30 as an attorney fee, pursuant to her claim under the ALAA. The trial court stated that its judgment was based on the testimony and evidence submitted at the September 28, 2010, hearing.

On October 14, 2010, Brantley mailed a letter to the trial court, which was filed by the clerk on October 15, 2010, alleging that he had thought that he would be notified of a new hearing date because of the conflict cited in Glover’s counsel’s September 13, 2010, letter. Brantley also alleged that Glover had not provided him with payment receipts, for which he had obtained a subpoena on September 20, 2010. Brantley further alleged that he was surprised when he later received the default judgment stating that the hearing had occurred on the originally scheduled date. Brantley also requested a hearing before the trial court.

On January 11, 2011, through newly obtained counsel, Brantley filed an “Amendment to Rule 55 and 59 Letter Dated October 14, 2010.” In his amended motion, Brantley repeated his assertions raised in his October 14, 2010, letter and, in addition, asserted that he had previously argued to the trial court that Glover owed him money under the agreement, noting that Glover had acknowledged in her amended complaint that Brantley had claimed that Glover owed Brantley $2,131. Brantley also argued that the trial court lacked subject-matter jurisdiction because, Brantley said, he had purchased the manufactured home in Tennessee. Brantley further asserted that Glover had not proven that Brantley’s defense to the action was sufficiently frivolous to warrant an award under the ALAA and that Glover had not submitted evidence to support the amount of the attorney fee awarded. Brantley’s postjudgment motion was denied by operation of law. See Rule 59.1, Ala. R. Civ. P. Brantley subsequently appealed to this court.

On appeal, Brantley first argues that the trial court lacked subject-matter jurisdiction over the case. Brantley contends that the claims in Glover’s complaint are claims arising under the Truth in Lending Act, 15 U.S.C. § 1601 et seq., and that those claims had to be brought in federal court. In support of his argument, Brantley cites only cases that state that the Truth in Lending Act can apply to the extension of credit in connection with the purchase of a manufactured home.

“ ‘The [Truth in Lending Act] has the broad purpose of promoting “the informed use of credit” by assuring “meaningful disclosure of credit terms” to consumers.’” Parrish v. Blazer Fin. Servs., Inc., 868 So.2d 406, 410 (Ala.2003) (quoting Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 559, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980), quoting in turn 15 U.S.C. § 1601). Brantley has not explained how the Truth in Lending Act applies to this case, in which Glover alleged that she had paid Brantley all the amounts due under the agreement while Brantley alleged that she had not. Glover did not make any claims relating to the disclosure of terms in the agreement. Therefore, we see no basis for the application of the Truth in Lending Act to this case. Because this case does not involve claims under the Truth in Lending Act, Brantley’s subject-matter-jurisdiction argument has no merit.

Brantley next argues that the trial court erred by failing to hold a hearing on his motion to set aside the default judgment and by subsequently allowing his motion to be denied by operation of law. Brantley contends that the trial court, by allowing his motion to be denied by operation of law, failed to apply the analysis required by Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988).

“A trial court has broad discretion in deciding whether to grant or deny a motion to set aside a default judgment. Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala.1988). In reviewing an appeal from a trial court’s order refusing to set aside a default judgment, this Court must determine whether in refusing to set aside the default judgment the trial court exceeded its discretion. 524 So.2d at 604. That discretion, although broad, requires the trial court to balance two competing policy interests associated with default judgments: the need to promote judicial economy and a litigant’s right to defend an action on the merits. 524 So.2d at 604. These interests must be balanced under the two-step process established in Kirtland.
“We begin the balancing process with the presumption that cases should be decided on the merits whenever it is practicable to do so. 524 So.2d at 604. The trial court must then apply a three-factor analysis first established in Ex parte Illinois Central Gulf R.R., 514 So.2d 1283 (Ala.1987), in deciding whether to deny a motion to set aside a default judgment. Kirtland, 524 So.2d at 605. The broad discretionary authority given to the trial court in making that decision should not be exercised without considering the following factors: T) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.’ 524 So.2d at 605.”

Zeller v. Bailey, 950 So.2d 1149, 1152-53 (Ala.2006).

As we stated in Richardson v. Integrity Bible Church, Inc., 897 So.2d 345 (Ala.Civ.App.2004):

“Because of the importance of the interest of preserving a party’s- right to a trial on the merits, this court has held that where a trial court does not demonstrate that it has considered the mandatory Kirtland factors in denying a motion to set aside a default judgment, such as where a Rule 55(c)[, Ala. R. Civ. P.,] motion is denied by operation of law, the denial of the motion to set aside the default judgment will be reversed and the cause remanded for the trial court to address the Kirtland factors.”

897 So.2d at 349. However, in order to trigger the mandatory requirement that the trial court consider the Kirtland factors, the party filing a motion to set aside a default judgment must allege and provide arguments and evidence regarding all three of the Kirtland factors. See Carroll v. Williams, 6 So.3d 463, 468 (Ala.2008) (“Because Carroll has failed to satisfy his initial burden under the Kirtland analysis [of providing allegations and evidence relating to all three Kirtland factors], we will not hold the trial court in error for allowing Carroll’s motion to set aside the default judgment to be denied by operation of law without having applied the Kirtland analysis.”). See also Maiden v. Federal Nat’l Mortg. Ass’n, 69 So.3d 860, 867 n. 3 (Ala.Civ.App.2011) (noting that we will not reverse the denial by operation of law of a motion to set aside a default judgment when the movant fails to argue the existence of the Kirtland factors in his or her motion).

In this case, Brantley’s motion to set aside the default judgment, together with Tris answer to Glover’s complaint, addressed whether he had a meritorious defense to Glover’s claim requesting a declaratory judgment and her ALAA claim. Brantley also addressed the culpable-conduct factor of the Kirtland analysis. However, Brantley provided no allegation or argument concerning the second factor in the Kirtland analysis — whether Glover would be unfairly prejudiced if the default judgment were set aside. Because Brant-ley did not allege that Glover would not be unfairly prejudiced by setting aside the default judgment, Brantley did not trigger the trial court’s duty to analyze the Kirt-land factors. Accordingly, we will not reverse the trial court’s decision to allow Brantley’s motion to be denied by operation of law without analyzing the Kirtland factors. See Carroll, 6 So.3d at 468; Rudolph v. Philyaw, 909 So.2d 200, 204 (Ala.Civ.App.2005).

AFFIRMED.

THOMPSON, P.J., and PITTMAN, J., concur.

MOORE, J., concurs specially, with writing.

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

MOORE, Judge,

concurring specially.

Because I am constrained by the rulings of our supreme court, I concur with the main opinion. I believe that it does not make sense for a party moving to set aside a default judgment to have to allege or prove that the opposing party will not be unfairly prejudiced. As many opinions have noted, the opposing party is obviously in the best position to assert and prove unfair prejudice. See, e.g., Royal Ins. Co. of America v. Crowne Invs., Inc., 903 So.2d 802, 811 (Ala.2004) (“[C]ommon sense dictates that a plaintiff is usually in a far better position to know what prejudice might befall him from the delay, and more importantly how substantial that prejudice would be.... ”). Therefore, the burden should rest on the opposing party to raise and go forward with the issue of unfair prejudice before the movant should have any burden of disproving unfair prejudice. Unless and until the supreme court overrules Phillips v. Randolph, 828 So.2d 269 (Ala.2002), however, this court is bound to place the burden on the movant.

Kenneth Brantley did not assert in either his original letter to the trial court or in his amended motion that Cathy Annette Glover would not be unfairly prejudiced if the default judgment were set aside. My review of the record reveals that it is highly unlikely that she would be. The dispute between the parties centered on whether Glover had fully paid all the moneys due under a promissory note held by Brantley. The terms of the promissory note, which was made a part of the pleadings, were not at issue; the parties contested only the number and timeliness of the installment payments made pursuant to the note. It appears from the exhibits attached to the pleadings that any payments were made solely through transactions between Glover and Brantley. Whatever evidence Glover had to prove full payment at trial on September 28, 2010, almost certainly would have remained in existence on October 15, 2010, when the trial court received the motion to set aside the default judgment.

Nevertheless, it remains that Brantley did not satisfy the technical requirement of raising lack of unfair prejudice in his motion. In Carroll v. Williams, 6 So.3d 463, 468 (Ala.2008), our supreme court clearly indicated that the denial by operation of law of a motion to set aside a default judgment would not be reversed if the movant failed to assert lack of unfair prejudice in the motion. In Sumlin v. Sumlin, 931 So.2d 40, 48 (Ala.Civ.App.2005), this court suggested that the failure to assert lack of unfair prejudice should not necessarily be fatal to a motion to set aside a default judgment. I agree with much of the analysis in Sumlin, and I urge the supreme court to adopt that reasoning if it insists that the movant bears the burden of raising and proving lack of unfair prejudice. It seems, at worst, that a movant’s failure to assert lack of unfair prejudice should only be a factor to be considered in determining whether to set aside a default judgment, not a determinant. As stated by our supreme court in Carroll, however, the law demands that we view that deficiency as fatal to Brantley’s appeal.

BRYAN, Judge,

concurring in the result.

The main opinion states:
“[I]n order to trigger the mandatory requirement for the trial court to consider the Kirtland [ v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988),] factors, a party filing a motion to set aside the default judgment must allege and provide arguments and evidence regarding all three of the Kirtland factors. See Carroll v. Williams, 6 So.3d 463, 468 (Ala.2008)....”

84 So.3d at 81. I do not read Carroll v. Williams, 6 So.3d 463 (Ala.2008), as establishing a bright-line rule stating that a trial court need not consider a motion to set aside a default judgment unless each of the Kirtland factors are alleged and supported by argument and evidence. I believe that the language in Carroll cited in the main opinion must be viewed in the context of the facts of that case. In Carroll, the defaulting party, in his motion to set aside the default judgment, completely failed to carry his burden under the framework established by Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988). The defaulting party in Carroll did not address the second and third Kirtland factors in his motion to set aside the default judgment. In addressing the first Kirtland factor, i.e., whether there is a meritorious defense, the defaulting party made only a bare legal conclusion unsupported by evidence, which is an insufficient showing under Kirtland. 6 So.3d at 467-68. Accordingly, the defaulting party in Carroll could not have possibly prevailed on his motion to set aside the default judgment. Thus, it would have been pointless for the supreme court to reverse the judgment and remand the case for the trial court to consider the Kirtland factors.

Carroll did not involve a situation in which a defaulting party presented a meritorious defense but failed to demonstrate one or both of the second and third Kirt-land factors. A defaulting party has the burden of “demonstrating] the existence of a meritorious defense as a threshold prerequisite when seeking to have a default judgment set aside.” Kirtland, 524 So.2d at 605. However, “a failure to demonstrate that one or both of the second and third Kirtland factors supports the granting of relief from a default judgment is not necessarily fatal to a motion for such relief.” Sumlin v. Sumlin, 931 So.2d 40, 48 (Ala.Civ.App.2005). See, e.g., Fries Corr. Equip., Inc. v. Con-Tech, Inc., 559 So.2d 557, 561 (Ala.1990); B.E.H., Jr. v. State ex rel. M.E.C., 71 So.3d 689 (Ala.Civ.App.2011); Calhoun v. Bracknell, 993 So.2d 902, 907 (Ala.Civ.App.2008); and Aldridge v. Hamilton, 708 So.2d 194 (Ala.Civ.App.1997). Thus, I do not think that a defaulting party’s failure to allege, argue, and support all three Kirtland factors before a trial court should necessarily relieve the trial court from having to consider a motion to set aside a default judgment in light of Kirtland. In the appropriate case, a defaulting party may be entitled to relief without demonstrating all three Kirtland factors. See Sumlin (noting that there is a strong bias in favor of deciding cases on the merits, especially when they involve child custody) and other cases cited above.

However, in this case, Kenneth Brant-ley, the defaulting party, did not demonstrate to the trial court the threshold requirement of a meritorious defense. Thus, there is no need to reverse the judgment and remand the case for the trial court to consider the Kirtland factors. Accordingly, I concur in the result.

      . Because we hold that the Truth in Lending Act has no application to this case, we express no opinion as to whether the trial court would have had subject-matter jurisdiction over the case if Glover had alleged a claim pursuant to the Truth in Lending Act. Additionally, because we hold that Glover’s claims were not brought pursuant to the Truth in Lending Act, we need not address Brantley’s argument that Glover’s alleged claim under the Truth in Lending Act was barred by the statute of limitations.

      . Although Judge Bryan attempts to distinguish this case from Carroll, the Alabama Supreme Court stated in that case that, in order to trigger the trial court’s duty to analyze the Kirtland factors, "[t]he law is well settled in Alabama that the defaulting party has the initial burden of demonstrating the existence of the three Kirtland factors." 6 So.3d at 467 (emphasis added). Thus, our supreme court has clearly held that a movant must argue all three Kirtland factors in a motion to set aside a default judgment. Furthermore, this court is bound by the decisions of our supreme court. § 12-3-16, Ala.Code 1975 ("The decisions of the Supreme Court shall govern the holdings and decisions of the courts of appeals....").
      Moreover, Sumlin v. Sumlin, 931 So.2d 40 (Ala.Civ.App.2005), which is cited by Judge Bryan for the proposition that "a failure to demonstrate that one or both of the second [ — that the nonmoving party would not be unfairly prejudiced — ] and third [ — that the default judgment was not the result of the movant’s culpable conduct — ] Kirtland factors supports the granting of relief from a default judgment is not necessarily fatal to a motion for such relief,” 931 So.2d at 48, is inapposite to the circumstances of this case. In Sumlin, the question before this court was whether the trial court had exceeded its discretion in applying the Kirtland factors to deny a motion to set aside a default judgment, not whether the trial court’s duty to perform the Kirtland analysis had been triggered. The section of the opinion quoted above was part of our discussion of whether a moving patty could prevail on a motion to set aside a default judgment if the equities were in favor of the nonmoving party with regard to the second and third factors, not whether a party could prevail on a motion to set aside a default judgment if the party had failed to provide any argument or allegations concerning those factors. Thus, Sumlin does not control the outcome or the analysis of this case. Even if Sumlin were applicable to this case, this court's decision in Sumlin cannot be used to overrule or modify our supreme court's decision in Carroll. See Walker v. Capstone Bldg. Corp., [Ms. 2081153, March 26, 2010] _ So.3d _, _ (Ala.Civ.App.2010) ("This court is bound by the decisions of our supreme court, and we are not at liberty to overrule those decisions or to choose not to follow them.”).

      . I note also that Kirtland states that "a trial court must first presume that a defaulting party has a right to a trial on the merits; and, then, with this presumption in mind, the trial court must consider the three-factor analysis.” 524 So.2d at 608.


author: THOMAS, Judge.

text:
    Valda CARLETON v. William CARLETON, Jr.
    2100479.
    Court of Civil Appeals of Alabama.
    Aug. 19, 2011.
    Rehearing Denied Nov. 10, 2011.

      Beverly Owen Barber, Pell City, for appellant.
    Gerald D. Colvin, Jr., Birmingham, for appellee.
   THOMAS, Judge.

Valda Carleton (“Valda”) appeals from a judgment of the St. Clair Circuit Court removing her as the administratrix of the estate of William Carleton, Sr. (“the estate”), and appointing William Carleton, Jr. (“William Jr.”), as administrator of the estate.

William Carleton, Sr. (“William Sr.”), died intestate on March 23, 2009. Thereafter, Valda filed a petition in the St. Clair Probate Court for letters of administration of the estate. On August 25, 2009, William Jr. filed a petition in the circuit court to remove the administration of the estate to circuit court. In his petition, William Jr. also requested that the circuit court revoke the letters of administration that had been issued to Valda and to appoint William Jr. as the administrator of the estate. In his petition, William Jr. alleged that Valda had claimed estate-owned property as her own, that Valda had used estate funds for her personal benefit, and that Valda had wasted, embezzled, and maladministered the estate. Valda answered William Jr.’s petition, admitting that removal of the action to the circuit court was proper and denying all William Jr.’s allegations with regard to her administration of the estate.

On June 22, 2010, William Jr. filed a motion in the circuit court, again requesting that the circuit court revoke Valda’s letters of administration and appoint William Jr. as the administrator of the estate. In his motion, William Jr. alleged that the probate court had appointed Valda as ad-ministratrix of the estate based on her status as William Sr.’s widow and that, after her appointment, the circuit court had determined that Valda was not the wife of William Sr. at the time of his death. Therefore, William Jr. argued, Valda no longer had priority over William Jr. for appointment as the administrator of the estate. In response to William Jr.’s motion, Valda moved the circuit court to appoint a third-party administrator for the estate.

The circuit court held a hearing on William Jr.’s petition and motion on December 10, 2010, and, on the same date, it entered a judgment revoking Valda’s letters of administration based “upon the grounds stated in [William Jr.’s] motion” and appointing William Jr. as the administrator of the estate.

Valda filed a postjudgment motion, asserting that the circuit court had erred in its earlier determination that Valda was not the wife of William Sr. at the time of his death; that she had not wasted, embezzled, or maladministered the estate; and that she had not attempted to claim any estate property as her own. Valda also argued that the circuit court had erred in granting William Jr. letters of administration for the estate and in not requiring William Jr. to post bond. Valda requested oral argument on her postjudgment motion. The circuit court denied Valda’s postjudgment motion without holding a hearing. Valda subsequently appealed to the Alabama Supreme Court. Our supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Valda first argues that the circuit court erred when it denied her postjudgment motion without a holding a hearing on that motion.

“Rule 59(g), Ala. R. Civ. P., provides that post-judgment motions ‘shall not be ruled upon until the parties have had an opportunity to be heard thereon.’ We have said that if a hearing is requested, it must be granted. Staarup v. Staarup, 537 So.2d 56 (Ala.Civ.App.1988). On appeal, however, if an appellate court determines that there is no probable merit to the motion, it may affirm based on the harmless error rule. Walls v. Bank of Prattville, 554 So.2d 381 (Ala.1989).”

Hill v. Hill, 681 So.2d 617, 619 (Ala.Civ.App.1996). The question on appeal is, therefore, whether there was probable merit to the arguments presented in Valda’s postjudgment motion.

Valda presented arguments in her post-judgment motion challenging the revocation of her letters of administration. Section 43-2-42, Ala.Code 1975, provides the order of priority as to whom a court must grant letters of administration for an estate. That section provides:

“(a) Administration of an intestate’s estate must be granted to one of the persons herein named if the person is willing to accept and satisfactory to serve in the following order:
“(1) The husband or widow.
“(2) The next of kin entitled to share in the distribution of the estate.
“(3) The largest creditor of the estate residing in this state.
“(4) Any other person as the judge of probate may appoint.”

§ 43-2-42.

At the time Valda filed for letters of administration in the probate court, she was thought to be the widow of William Sr. Thus, Valda had first priority to be appointed as the administrator of the estate, and, accordingly, the probate court appointed her as the administratrix of the estate. After Valda had been appointed as the administratrix of the estate, the circuit court determined in an action brought by one of William Sr.’s previous wives, Mary Gail Carleton, that a final judgment had never been entered in the divorce action between Mary and William Sr.; therefore, the circuit court determined, Mary was the legal wife of William Sr. at the time of his death, their divorce action had abated upon the death of William Sr., see Boudreau v. Slaton, 9 So.3d 495, 500 (Ala.Civ.App.2008), and, accordingly, Valda had not been William Sr.’s wife at the time of his death. This court affirmed the circuit court’s judgment in that action, without an opinion, see Carleton v. Carleton (No. 2090945, March 11, 2011), _ So.3d _ (Ala.Civ.App.2011) (table), and our supreme court denied Yalda’s petition for the writ of certiorari. Thus, Valda is not William Sr.’s widow.

Because Valda is not actually William Sr.’s widow, she does not have priority over William Jr., or any other relative of William Sr., under § 43-2-42. The circuit court lacks discretion in matters of priority under § 43-2-42. See Ogle v. Gordon, 706 So.2d 707, 710-11 (Ala.1997)(“ ‘Priority of right to appointment given by statute, whether as executor or as administrator, is controlling so long as the one having such statutory preference is not disqualified.... ’ ’’(quoting Smith v. Rice, 265 Ala. 236, 248, 90 So.2d 262, 274 (1956))). Therefore, the circuit court could, and was in fact required to, revoke Valda’s letters of administration on William Jr.’s motion because they had been improperly granted on the belief that Valda was William Sr.’s widow. Ogle, supra. See also Brown v. Brown, 204 Ala. 157, 158, 85 So. 439, 440 (1920) (“Where letters of administration have been improperly or improvidently granted, such letters may be recalled by the court granting them, or having jurisdiction of the administration of the estate in question, either ex mero motu or on application of any person in interest.”). Therefore, there was no probable merit in Valda’s argument that the circuit court had erred in revoking her letters of administration. Because there was no probable merit in Valda’s argument on this issue, the failure of the circuit court to hold a hearing on Valda’s postjudgment motion was harmless error. Rule 45, Ala. R.App. P.; Hill, 681 So.2d at 619.

Valda next argues on appeal that the circuit court erred in appointing William Jr. as the administrator of the estate because, Valda says, William Jr. has a conflict of interest based on the fact that he is also the executor of the estate of Randolph Carleton, William Sr.’s father, which estate Valda asserts has conflicting claims of ownership of property with the estate. However, the Alabama Supreme Court has held that a person is not disqualified from serving as the administrator of an estate because of a conflict with the interests of the estate. See Willoughby v. Willoughby, 203 Ala. 138, 139, 82 So. 168, 169 (1919) (holding that, “[e]ven though [the widow] had an adverse interest in the estate, or claimed to have a right superior or antagonistic to decedent’s next of kin, such claims did not disqualify her from acting as administratrix, or subordinate her superior claim to administer the estate to that of petitioners, the brothers, the heirs, and next of kin of decedent”). Therefore, we discern no error in the circuit court’s appointment of William Jr. as the administrator of the estate.

Because the circuit court’s failure to hold a hearing on Valda’s postjudgment motion amounted to harmless error, and because Valda has not shown that the circuit court erred in appointing William Jr. as the administrator of the estate, we affirm the judgment of the circuit court.

AFFIRMED.

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

      . Section 43-2-290, Ala.Code 1975, provides, in pertinent part:
      "An administrator may be removed, and his letters revoked for his removal from the state; and an administrator or executor may be removed and his letters revoked for any of the following causes:

      "(3) The wasting, embezzlement or any other maladministration of the estate.
      "(4) The using of any of the funds of the estate for his own benefit.”

      . Because we determine that the circuit court properly revoked Valda’s letters of administration based on the fact that she was not the widow of William Sr., we need not consider whether the circuit court could have revoked Valda's letters of administration based on a determination that Valda had used estate funds for her personal benefit or that Valda had wasted, embezzled, or maladministered the estate.

      . Valda also argued in her postjudgment motion that the circuit court had erred by not requiring William Jr. to post a surety bond. On appeal, Valda reasserts this issue in her statement of the issues; however, she provides no actual argument as to this issue. Because Valda has not provided this court with any argument on this issue, she has waived the issue on appeal. See Pardue v. Potter, 632 So.2d 470, 473 (Ala.1994) ("Issues not argued in the appellant’s brief are waived.”).