text:
    BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY v. Joann CHRISTOPHER.
    2101029.
    Court of Civil Appeals of Alabama.
    May 18, 2012.

      Edgar P. Walsh of The Atchison Firm, P.C., Mobile, for appellant.
    Gregory B. Stein of Stein & Pilcher, L.L.C., Mobile, for appellee.
   THOMPSON, Presiding Judge.

On May 7, 2010, Roy D. Nichols, the superintendent of the Mobile County Board of School Commissioners, notified Joann Christopher of his intention to recommend the termination of her employment pursuant to the reduction-in-force policy (“RIF policy”) adopted by the Mobile County Board of School Commissioners (“the Board”) in compliance with § 16-1-33, Ala.Code 1975. The record indicates that budgetary problems necessitated the termination of the employment of a number of the Board’s employees under the RIF policy. The notice provided by the superintendent to Christopher stated, among other things, that the Board planned to conduct a hearing on the proposed termination on June 16, 2010, and that, if the Board affirmed the superintendent’s termination recommendation, Christopher could elect to contest the termination of her employment pursuant § 36-26-104 of the former Fair Dismissal Act (“the FDA”), § 36-26-100 et seq., Ala. Code 1975 (repealed and replaced by § 16-24C-1 et seq., Ala.Code 1975). On May 17, 2010, Christopher notified the Board of her intent to contest the termination of her employment.

On June 17, 2010, the Board affirmed the termination decision, and Christopher filed a timely notice of appeal of that decision. A hearing officer conducted a hearing on March 16, 2011. On July 12, 2011, the hearing officer entered a decision reversing the termination of Christopher’s employment. The Board filed a timely request that this court accept its appeal. See former § 36-26-104, Ala.Code 1975 (repealed and replaced by § 16-24C-6, Ala.Code 1975). This court granted the Board’s request and accepted the appeal.

As an initial matter, we note that, during the time this appeal has been pending, the Alabama Legislature enacted the Students First Act (“the SFA”), § 16-24C-1 et seq., Ala.Code 1975. The SFA repealed both the former Teacher Tenure Act (“TTA”), §§ 16-24-1 through -38, Ala.Code 1975 (repealed and replaced by § 16-24C-1 et seq., Ala.Code 1975), and the FDA. For the most part, the SFA became effective on July 1, 2011. § 16(b), Act No. 2011-270, Ala. Acts 2011; see also Comment, § 16-24C-14, Ala.Code 1975. However, Act No. 2011-270, the legislation that established the SFA, also specified that some portions of the ■ SFA were to be effective before July 1, 2011.

Specifically, Act No. 2011-270 provides that the section that is now § 16-24C-6(h)(3) became effective at the time the legislation became law, which occurred in this case on May 26, 2011, when it was signed by the governor. § 16, Act No. 2011-270. Specifically, section 16 provides:

“(a) Subdivision (2) and subdivision (3) of subsection (h) of Section 6 shall be effective immediately following passage and approval of this act by the Governor, or its otherwise becoming law.
“(b) Subject to the following terms and qualifications, the remainder of this act shall be effective on July 1, 2011, following passage and approval of this act by the Governor, or its otherwise becoming law:
“(1) Employees who have attained tenured status under the Teacher Tenure Law or nonprobationary status under the Fair Dismissal Act as of the effective date of this act, in the case of tenured teachers, shall be deemed tenured teachers under this act and, in the case of nonprobation-ary employees within the meaning of the Fair Dismissal Act shall be deemed nonprobationary classified employees under this act. Employees who have not attained tenured status under the Teacher Tenure Law or nonprobationary status under the Fair Dismissal Act as of the effective date of this act shall be subject to the terms and provisions of this act respecting the attainment of teacher tenure or nonprobationary status, and all time in service that would have been credited toward the attainment of either tenure under the Teacher Tenure Law or nonprobationary status under the Fair Dismissal Act shall be credited toward the attainment of tenure or nonprobationary status in the corresponding employment category under this act.
“(2) All employment actions and proceedings that have been initiated under either the Teacher Tenure Law or the Fair Dismissal Act that are pending on the effective date of this act shall be completed under the statutory procedures that were in effect on the date the action or proceeding was commenced.”

(Emphasis added.)

Section 16-24C-6 governs grounds for terminations, the procedures for terminations and hearings, and appeals. Subsection (h) of that statute, which is referenced in § 16(a) of Act No. 2011-270, quoted above, provides, in pertinent part:

“(h) The following additional terms, conditions, and limitations apply to terminations and appeals therefrom:
“(3) Layoffs or other personnel actions that are unavoidable reductions in the workforce beyond normal attrition due to decreased student enrollment or shortage of revenues as specified in Section 16-1-33, are not subject to challenge or review under this chapter.”

We note that the codification of the SFA in the Alabama Code omits the provisions set forth in § 16 of Act No. 2011-270 concerning the effective dates of that legislation. Instead, the information concerning the effective dates of the SFA is set forth in the Code Commissioner’s Notes to § 16-24C-6 . and § 16-24C-14, Ala.Code 1975. However, “the failure of the publisher ... to incorporate [the full text of § 16, Act No. 2011-270,] into the Code did not affect [the] validity” of that section. Ex parte Rheem Mfg., 524 So.2d 631, 633 (Ala.1988) (explaining that sections of a legislative enactment “dealing with the effective date [of legislation] ... belongs in that category of provisions that customarily are not codified but remain viable and applicable provisions of the legislative enactment”). Thus, subsection 16-24C-6(h)(3), which addresses situations in which employment is terminated pursuant to a RIF policy, took effect on May 26, 2011, when Act No. 2011-270 was signed by the governor. As is specified in § 16(b) of Act No. 2011-270, “the remainder of [the SFA became] effective on July 1, 2011.”

In this case, Nichols notified Christopher on May 7, 2010, that he was recommending to the Board that her employment be terminated pursuant to the Board’s RIF policy and that she could contest his recommendation pursuant to the provisions of the FDA. On June 17, 2010, the Board notified Christopher that it had upheld Nichols’s recommendation and terminated her employment. In that notification, the Board informed Christopher that she had the right to appeal pursuant to the FDA, which was in effect at the time. On June 23, 2010, Christopher filed a notice of appeal, citing the provisions of the FDA as authority for that appeal. The hearing officer conducted a hearing on March 16, 2011. However, the hearing officer entered his decision in this matter on July 12, 2011, after the effective date of § 16-24C-6(h)(3).

This court asked the parties to brief whether § 16-24C-6(h)(3), Ala.Code 1975, was intended to apply to bar actions such as this one that were pending at the time of the enactment of Act No. 2011-270.

This court also allowed the parties in the consolidated appeals — appeal no. 2110252 (Huntsville City Board of Education v. Stranahan) and appeal no. 2110286 (Huntsville City Board of Education v. Holmes) — to submit arguments and appear as amici curiae at oral argument; those two cases are hereinafter referred to as “the Huntsville cases.” Those consolidated appeals, which this court has accepted, concerned appeals from terminations resulting from the Huntsville City Board of Education’s RIF policy.

The parties and the amici curiae each responded to this court’s request for briefs on the issue, and they each appeared at oral argument to address the issue whether § 16-24C-6(h)(3) barred an employee’s appeal of a termination decision made as a result of a RIF policy when the hearing officer entered his or her decision after the effective date of § 16-24C-6(h)(3), Ala. Code 1975. Christopher contended that § 16-24C-6(h)(3) does not preclude her claims. The Board argued, among other things, that because § 16 of Act No. 2011-270 specifies that § 6(h)(2) and (3) of the act (i.e., what is now codified as § 16-24C-6(h)(2) and (3)) were to take effect immediately, those subsections applied to this action, which was pending, but had not yet been decided, at the time of the passage of the SFA legislation. The Huntsville City Board of Education, as amicus curiae, submitted the only brief to address the issue whether retroactive application of § 16-24C-6(h)(3) is appropriate; the parties and the other amici curiae each addressed that issue in their arguments before this court during oral argument.

“The general rule is that retrospective application of a statute is not favored and legislative intent to make a statute retrospective must be clearly expressed before the statute will be construed to operate retrospectively.” Kittrell v. Benjamin, 396 So.2d 93, 94 (Ala.1981).

“Our Supreme Court has applied a state constitutional provision in determining whether an act of the legislature can be applied retrospectively and has concluded that the constitution requires that the title of the act reflects the legislature’s intent for retroactive effect:
“ ‘This Court has interpreted § 45 [Alabama Constitution of 1901,] as imposing the requirement that where an act is intended to have retroactive application, the title of the act must “fairly and reasonably indicate] that the act is retrospective.” Lindsay v. United States Savings and Loan Association, 120 Ala. 156, 24 So. 171 (1897); see Gayle v. Edwards, 261 Ala. 84, 72 So.2d 848 (1954).’
“Alabama Educ. Ass’n v. Grayson, 382 So.2d 501, 505 (Ala.1980).
“The Court of Appeals, after conducting a detailed analysis of whether a statute should be applied retroactively, stated as follows:
“ ‘It is a fundamental precept of our jurisprudence that substantive legal interests spring from the law in effect at the time such interests are alleged to have arisen or to have been violated. For this reason, undoubtedly induced by a sense [of] what is fair and what is right, courts have uniformly been reluctant to construe statutes as having retroactive operation, even though non offensive constitutionally, unless the intent of the legislature that a statute is to operate retroactively is made certain, either by actual words, or by clear and necessary implication.’
“Alabama Power Co. v. Director of Indus. Relations, 36 Ala.App. 218, 221, 54 So.2d 786, 788 (1951) cert. denied.
“Our Supreme Court restated the presumption against retroactive application of laws, as follows:
“ ‘The judiciary generally disdains retroactive application of laws because such application usually injects undue disharmony and chaos in the application of law to a given fact situation; therefore, the courts will generally indulge every presumption in favor of prospective application unless the legislature’s intent to the contrary is clearly and explicitly expressed. City of Brewton v. White’s Auto Store, Inc., 362 So.2d 226 (Ala.1978).’
“Lee v. Lee, 382 So.2d 508, 509 (Ala.1980).”
State Home Builders Licensure Bd. v. Grzelak, 705 So.2d 406, 408 (Ala.Civ.App.1997).
In this case, the SFA does not expressly address whether the legislature intended that § 16-24C-6(h)(2) and (3) have retroactive application, as have other legislative enactments. See § 13A-5-9.1, Ala.Code 1975 (“The provisions of Section 13A-5-9 shall be applied retroactively-); § 32-5A-12, Ala.Code 1975 (“This chapter shall not have a retroactive effect....”); § 11-44C-96, Ala.Code 1975 (“This exemption from all municipal sales and use taxes and gross receipts taxes shall be retroactive to October 1, 1999.”); see also § 36-30-5, Ala.Code 1975, Code Commissioner’s Note (noting that § 4 of Act No. 2008-480, Ala. Acts 2008, which amended § 36-30-5, provided that “ ‘[t]his act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law, and shall be retroactive to January 1, 2006’ ”); and § 45-22-234(b), Ala. Code 1975 (“This section shall have retroactive effect to January 1, 1999, upon its passage and approval by the Governor or upon its otherwise becoming a law.”).

In the absence of an express legislative statement of retroactivity, the courts must determine, from the statute as a whole, whether the legislature intended that the statute have retroactive application. In enacting Act No. 2011-270, it is clear that the legislature intended that that part of the legislation governing RIF cases take effect immediately upon passage, although it is not clear whether the legislature intended that that section apply to actions then pending but undecided.

Regardless, whether a statute may be applied retroactively turns on the issue whether the statute affects substantive or remedial rights. Ex parte Burks, 487 So.2d 905 (Ala.1985); State Home Builders Licensure Bd. v. Grzelak, supra. Substantive laws affect vested rights or alter a party’s legal status. State Home Builders Licensure Bd. v. Grzelak, supra. “Substantive law” is “[t]hat part of law which creates, defines, and regulates rights and duties of parties, as opposed to ‘adjective, procedural, or remedial law,’ which prescribes method of enforcing the rights or obtaining redress for their invasion.” Black’s Law Dictionary 1429 (6th ed. 1990). Remedial statutes are those “ ‘which impair no contract or vested right, and do not disturb past transactions, but preserve and enforce the right and heal defects in existing laws prescribing remedies.’ ” Jones v. Casey, 445 So.2d 873, 875 (Ala.1983) (quoting Dickson v. Alabama Mach. & Supply Co., 18 Ala.App. 164, 165, 89 So. 843, 844 (1921)).

Generally, remedial statutes may have retroactive application, but substantive statutes may not be applied retroactively. See Kittrell v. Benjamin, 396 So.2d 93, 95 (AIa.1981) (a statute can have retroactive application if it affects procedural as opposed to substantive rights); United States Steel & Mining Co. v. Riddle, 627 So.2d 455, 457-58 (Ala.Civ.App.1993)

(“[W]e must decide whether the standard of review in the newly enacted Workers’ Act is truly remedial, and thus applicable retrospectively, or if it is substantive and therefore only prospectively operable.”). Our supreme court has quoted the following explanation for allowing retroactive application of remedial statutes: “ ‘ “Because rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule [is] instituted after the conduct giving rise to the suit does not make application of the rule [] retroactive.”’” BT Secs. Corp. v. W.R. Huff Asset Mgmt. Co., 891 So.2d 310, 316 (Ala.2004) (quoting Professional Mgmt. Assocs., Inc., Employees’ Profit Sharing Plan v. KPMG, LLP, 335 F.3d 800, 803 (8th Cir.2003), quoting in turn Landgraf v. USI Film Prods., 511 U.S. 244, 275, 114 S.Ct. 1483,128 L.Ed.2d 229 (1994)).

Before this court, the Board argued that § 16-24C-6(h)(3) is remedial in nature and, therefore, that it can validly have retroactive application. In making that argument, the Board maintained that RIF layoffs are made pursuant to statutory guidelines set forth in § 16-1-33, Ala.Code 1975, and it contended that the SFA affects the procedure by which an employee may assert a violation of the mandates of § 16-1-33. Section 16-1-33 provides, in pertinent part:

“(a) When used in this section, the following words shall have the following meanings:
“(3) Layoff. An unavoidable reduction in the work force beyond normal attrition due to decreased student enrollment or shortage of revenues.
“(b) Each board shall adopt a written reduction-in-foree policy consistent with Section 16-1-30. The policy shall include, but shall not be limited to, layoffs, recalls, and notifications of layoffs and recalls. The reduction-in-force policy of the board shall be based on objective criteria.”

In making its argument that § 16-24C-6(h)(3) is remedial or procedural in nature, the Board contends that “[t]he employees’ substantive rights, i.e., that reductions in force must be taken in accordance with a written policy adopted in compliance with § 16-1-33, are unaffected by [§ 16-24C-6(h)(3)]. That section only affects the remedy or procedure for addressing violations of the mandates of § 16-1-33.”

With regard to the distinction whether a statute affects substantive or procedural rights, our supreme court has noted:

“‘“[I]t is simplistic to assume that all law is divided neatly between ‘substance’ and ‘procedure.’ A rule of procedure may have an impact upon the substantive result and be no less a rule of procedure on that account.... As said in Hanna v. Plumer, 380 U.S. 460, 471, 85 S.Ct. 1136, 1144, 14 L.Ed.2d 8, 16-17 (1965), ‘The line between “substance” and “procedure” shifts as the legal context changes. “Each implies different variables depending upon the particular problem for which it is used.”’

Middleton v. Caterpillar Indus., Inc., 979 So.2d 53, 60 (Ala.2007) (quoting Schoenvogel v. Venator Group Retail, Inc., 895 So.2d 225, 250 (Ala.2004), quoting in turn Busik v. Levine, 63 N.J. 351, 364-65, 307 A.2d 571, 578 (1973)).

In Ex parte Burks, 487 So.2d 905, 906 (Ala.1985), our supreme court considered whether “the amendment to Code 1975, § 36-26-27(a), effective July 28, 1983, which allows the State Personnel Board to impose discipline less severe than termination upon a state merit system employee, applies] retroactively to the review of a Board determination to terminate a state employee if the review was pending before the circuit court at the effective date of the amendment?” In determining that the statute did apply retroactively, our supreme court stated:

“The amended statute at issue here does not expressly contain any provision for retroactive application, nor is there a clear legislative intent that the statute so operate. Therefore, the amended provision may operate retroactively only if it is found to be ‘remedial.’
“Remedial statutes are those relating to remedies or modes of procedure. Street v. City of Anniston, 381 So.2d 26 (Ala.1980); Harlan v. State, 31 Ala.App. 478, 18 So.2d 744 (194[4]). In Jones v. Casey, [445 So.2d 873 (Ala.1983)], we reiterated the definition of ‘remedial statutes’
“ ‘... as those “which impair no contract or vested right, and do not disturb past transactions, but preserve and enforce the right and heal defects in existing laws prescribing remedies.” Dickson v. Alabama Mach, and Supply Co., 18 Ala.App. 164, 165, 89 So. 843, 844, cert. denied, 206 Ala. 698, 89 So. 922 (1921).’
445 So.2d at 875.
“We believe that the amendment to Code 1975, § 36-26-27(a), is remedial in nature, touching upon matters of procedure rather than substantive rights, and corrects what may be perceived as a defect in the original statute. Moreover, no substantial right is impaired by the expanded remedies granted to the Personnel Board to be applied in reviewing disciplinary measures against state merit employees. This is not to say that substantial rights may not be affected by the application of the statutory change, but that this effect is only the result of the utilization of what is essentially a matter of Personnel Board procedure.”

Ex parte Burks, 487 So.2d at 907.

We cannot agree with the Board that § 16-1-33 provides substantive rights to the employees of a board. Rather, that section sets forth requirements for a board to meet in creating and adopting a RIF policy. Thus, we do not find persuasive the Board’s argument that § 16-24C-6(h) is a procedural statute intended to implement the requirements of the substance of § 16-1-33.

Former § 36-26-102 of the FDA, which was effective at the time Christopher was notified of the decision to seek termination of her employment and at the time she first contested that notification, provided:

“Upon the completing by the employee of said probationary period, said employee shall be deemed employed on a nonprobationary status and said employee’s employment shall thereafter not be terminated except for failure to perform his or her duties in a satisfactory manner, incompetency, neglect of duty, insubordination, immorality, justifiable decrease in jobs in the system, or other good and just causes; provided, however, such termination of employment shall not be made for political or personal reasons on the part of any party recommending or voting to approve said termination.”

We conclude that former § 36-26-102, Ala. Code 1975, and other provisions of the FDA provided Christopher a substantive right to challenge the termination of her employment pursuant to a RIF policy. The SFA, in § 16-24C-6(h)(3), curtails that substantive right. Accordingly, we hold that § 16 — 24C—6(h)(3) is not applicable retrospectively in this case.

With regard to the merits of the appeal, the Board contends that the hearing officer erred in reversing its termination decision. We note that “ ‘ “[t]he decision of the hearing officer shall be affirmed on appeal unless the Court of Civil Appeals finds the decision arbitrary and capricious. ...” ’ [Bishop State Cmty. Coll, v.] Williams, 4 So.3d [1152,] 1157 [ (Ala.Civ.App.2008) ] (quoting § 36-26-104(b), Ala.Code 1975).” Bishop State Cmty. Coll. v. Thomas, 13 So.3d 978, 986 (Ala.Civ.App.2008).

This court has explained, in the context of cases involving terminations due to disciplinary reasons, the considerations the hearing officer or a court must employ in determining whether a board, pursuant to former § 36-26-102, Ala.Code 1975, justifiably terminated the employment of a non-probationary employee such as Christopher:

“If an employee properly contests the termination of his or her employment, see § 36-26-103(b), Ala.Code 1975 (setting out the procedure for contesting a termination under the FDA), the employee is entitled to a de novo hearing. § 36-26-104(a), Ala.Code 1975. Pursuant to the statutory charge, the hearing officer should first decide whether the employer has ‘stated and proved proper grounds for terminating an employee’s employment.’ Bishop State Cmty. Coll. v. Williams, 4 So.3d 1152, 1157 (Ala.Civ.App.2008). If the hearing officer concludes that the employer has met its initial burden, the hearing officer shall then decide whether the employer dismissed the employee to further an improper motive, i.e., for personal or political reasons. See Ex parte Wilson, 984 So.2d 1161, 1171 (Ala.2007) (construing the Teacher Tenure Act, § 16-24-1 et seq., Ala.Code 1975). Finally, the hearing officer ‘shall determine which of the following actions should be taken relative to the employee: Termination of the employee, a suspension of the employee, with or without pay, a reprimand, other disciplinary action, or no action against the employee.’ § 36-26-104(a), Ala. Code 1975.”

Bishop State Cmty. Coll. v. Thomas, 13 So.3d at 985.

In reaching his July 12, 2011, decision in this case, the hearing officer concluded that the Board’s decision to implement the RIF policy was financially justified. The hearing officer set forth a detailed statement of the evidence presented on the issue of the financial difficulties facing the Board; no useful purpose would be served by detailing that evidence in this opinion. Suffice it to say that the hearing officer’s conclusions that financial conditions over the last few years have resulted in the proration of school-system budgets throughout Alabama, that the Board had faced several recent cutbacks to its income, and that the Board’s financial situation worsened during the 2010-2011 school year are clearly supported by the evidence presented in this matter. Thus, we conclude that the hearing officer determined that the Board had met its initial burden of stating and proving proper grounds for terminating Christopher’s employment, which, in this case, was a justifiable decrease in jobs within the system. See Bishop State Cmty. Coll. v. Thomas, 13 So.3d at 985; see also Mobile Cnty. Bd. of Sch. Comm’rs v. Long, 46 So.3d 6, 9 (Ala.Civ.App.2010) (“The hearing officer was authorized to determine whether the Board proved the asserted ground for the dismissal — a justifiable decrease in jobs in the school system. See former § 36-26-102 and -104(a).”).

In this case, there was no allegation that the Board had an improper motive when it terminated Christopher’s employment pursuant to the RIF policy. See former § 36-26-102, Ala.Code 1975 (providing that a “termination of employment shall not be made for political or personal reasons on the part of any party recommending or voting to approve said termination”); and Bishop State Cmty. Coll. v. Thomas, 13 So.3d at 985. We also note that, unlike the appellant in Mobile County Board of School Commissioners v. Long, supra, there was no allegation that the Board did not comply with its RIF policy in reaching its decision to terminate Christopher’s employment. It also does not appear that Christopher contested the need for reductions in staffing in the school system caused by the financial crisis facing the Board and other school systems throughout the state.

Rather, Christopher argued that, based on her employment history with, and job performance for, the school system, her employment should not have been terminated. Christopher also argued that additional federal funds for teacher and other employees’ salaries became available in August 2010 and that the Board should have used those federal funds to rehire her at that time. The evidence presented with regard to those arguments is as follows.

Christopher was one of three arts instructors whose employment was terminated pursuant to the RIF policy. The undisputed evidence presented to the hearing officer was that Christopher was an excellent employee and instructor. The evidence and testimony indicated that Christopher had made substantial contributions toward developing and implementing the arts program in the school system. In addition, evidence was presented indicating that Christopher had had a positive impact on a number of students within the school system. The Board conceded that it had no complaint about Christopher’s work performance and that it would have preferred to maintain her employment.

The hearing officer also received evidence indicating that in August 2010 the United States Congress created the Education Jobs Fund. Pub.L. No. 111-226, 124 Stat. 2389. Pursuant to that program, the federal government allocated funds to local educational agencies for the creation and retention of education jobs. § 101(3), Pub.L. No. 111-226. That federal legislation specified that the federal funds were to be “used only for compensation and benefits and other expenses, such as support services, necessary to retain existing employees, to recall or rehire former employees, and to hire new employees, in order to provide early childhood, elementary, or secondary educational and related services.” § 101(5)(A), Pub.L. No. Ill— 226.

Based on the notification in August 2010 that funds from that federal legislation would be available, the Board rehired some employees whose employment had been terminated pursuant to the RIF policy. Dinish Simpson, the chief financial officer for the Mobile County School System, testified that when the school system learned it was to receive a portion of those federal funds, the Board decided to use the funds to rehire certain teachers, custodians, and assistant principals and to hire some new school-bus drivers; the federal funds were to be used to pay those employees’ salaries.

In reversing the Board’s decision to terminate Christopher’s employment, the hearing officer determined that although the Board’s implementation of the RIF policy was justified and that reductions in staff were necessary, the Board’s decision to terminate Christopher’s employment pursuant to the RIF policy was not justified. The hearing officer cited former § 36-26-104(a), which provided that, after he or she conducts a de novo hearing, the hearing officer must “determine which of the following actions should be taken relative to the employee: Termination of the employee, a suspension of the employee, with or without pay, a reprimand, other disciplinary action, or no action against the employee.” Former § 36-26-104(a), Ala. Code 1975. The hearing officer concluded that, in the context of RIF cases, former § 36-26-104(a) allowed a hearing officer to determine that, even if the RIF is necessary, it should not be applied to a specific employee.

In determining that the Board improperly terminated Christopher’s employment pursuant to the RIF policy, the hearing officer found that Christopher was an excellent worker and instructor, that her employment had benefited the school system as a whole, and that she had positively impacted the lives of many of the school system’s students. However, the hearing officer “hasten[ed] to add that [he] certainly [did] not attribute any ill will to any decision maker in this case. All of them made hard decisions and choices in awfully hard times, and every decision was made in good faith.” (Emphasis added.) The hearing officer also concluded that the Board had erred in failing to use some of the federal funds acquired after the termination of Christopher’s employment to rehire Christopher, and he calculated that the Board’s cost savings, achieved through the terminations made pursuant to the RIF policy, would not be significantly adversely impacted by rehiring Christopher.

We cannot agree with the hearing officer’s determination that former § 36-26-104(a) authorized him to determine, in the absence of allegations of improper motive, whether the termination of a particular employee’s employment was justifiable under a RIF policy. In situations in which an employee’s employment is terminated under the FDA as a form of discipline, the alternatives listed in former § 36-26-104(a) have a function. The hearing officer is allowed to consider whether, in light of the particular conduct of the employee and the facts of the case, termination was warranted or whether a lesser or no disciplinary sanction, i.e., “suspension of the employee, with or without pay, a reprimand, other disciplinary action, or no action,” would be warranted under the circumstances. In the case of a termination pursuant to a RIF policy, however, the conduct of the employee is not at issue. The purpose of a termination pursuant to a RIF policy is cost savings to the employing board. Where a termination of employment is made because of a justifiable decrease in the jobs in the system, see former § 36-26-102, the selection of any other form of discipline or sanction under former § 36-26-104(a) would not achieve the long-term cost-savings goal of the termination pursuant to a RIF policy.

Further, in the context of similar terminations under teacher-tenure laws, our courts have rejected the standard utilized by the hearing officer in this case. In Williams v. Board of Education of Lamar County, 263 Ala. 372, 82 So.2d 549 (1955), Williams’s employment was terminated pursuant to a predecessor to the TTA that provided that a teacher’s employment could be terminated for, among other reasons, a “ ‘justifiable decrease in the number of teaching positions.’ ” Williams, 263 Ala. at 375, 82 So.2d at 552 (emphasis omitted). The board at issue in that case cited a decrease in jobs as the basis for seeking to terminate Williams’s employment, and our supreme court agreed that the evidence supported a termination for that reason. Williams argued, however, that her employment was terminated for personal reasons, specifically, for her failure to move to the school system in which she was employed, which was a violation of a school-system rule. This court rejected that argument, noting that the board in that case had not sought to terminate Williams’s employment for that purported rule violation. Further, the court held that once it had been determined that the evidence supported the board’s determination that there had been a justifiable decrease in the number of teaching positions available, no further inquiry was necessary with regard to the termination. Our supreme court explained:

“As we see it, the only pertinent inquiry was whether there was a ‘justifiable decrease in the number of teaching positions’. That being established, the reason for selecting [Williams’s] contract as the one to be cancelled was not open to inquiry. We find nothing in the Tenure Act establishing a criterion for determining what particular tenured teacher’s contract should be cancelled when there is a ‘justifiable decrease in the number of teaching positions.’ In such situation, it seems to us that the right of selection is a matter resting entirely with the employing Board of Education.”

Williams, 263 Ala. at 375, 82 So.2d at 552. See also May v. Alabama State Tenure Comm’n, 477 So.2d 438, 440 (Ala.Civ.App.1985) (“[W]hen a Board is faced with a reduction in teaching positions, much must be left to the ‘enlightened discretion’ of the Board after considering the entire situation.” (quoting Woods v. Board of Educ. of Walker Cnty., 259 Ala. 559, 561, 67 So.2d 840, 841 (1953))).

In Walker v. Montgomery County Board of Education, 85 So.3d 1008, 1015 (Ala.Civ.App.2011), this court cited the above-quoted portion of Williams, supra, in rejecting a similar argument asserted by Walker, a contract principal whose employment had been terminated pursuant to a provision in her contract that allowed termination for, among other things, “ ‘[a] justifiable decrease in the number of positions due to decreased enrollment or decreased funding.’” 85 So.3d at 1016. Also, like Christopher in this case, Walker had argued that the board had other options available to it that would allow her to remain employed; in that case, Walker contended that the employment of other, probationary principals in other schools could have been terminated. This court rejected Walker’s arguments, concluding:

“Although Walker’s contract falls under the [Teacher Accountability Act (‘TAA’)] and not the TTA, we have found no provision in the TAA that ‘establishes] a criterion for determining what particular [contract principal’s] contract should be cancelled when there is a “justifiable decrease in the number of [principal] positions.” ’ Williams, 263 Ala. at 375, 82 So.2d at 552. The Board was entitled to make the decision regarding which contract principals would be nonrenewed or would have their contracts canceled. Courts are not permitted to usurp the role of the school board and cannot determine that another course of action other than the one taken by the school board might have been wiser or more equitable. State ex rel. Steele v. Board of Educ. of Fairfield, 252 Ala. 254, 261, 40 So.2d 689, 695 (1949), overruled on other grounds, Ex parte Jackson, 625 So.2d 425 (Ala.1992).”

Walker, 85 So.3d at 1015-16.

In this case, like the appellants in Williams, supra, and Walker, supra, Christopher’s employment was terminated pursuant to a statutory provision allowing such a termination due to a “justifiable decrease” in the number of jobs within the system caused by financial constraints. The FDA has often been interpreted with reference to cases interpreting teacher-tenure law or caselaw. See Bishop State Cmty. Coll. v. Thomas, 13 So.3d at 985 (citing Ex parte Wilson, 984 So.2d at 1171, and Madison Cnty. Bd. of Educ. v. Wilson, 984 So.2d 1153 (Ala.Civ.App.2006) (both construing the TTA)); and Athens State Coll. v. Ruth, 795 So.2d 703, 706 (Ala.Civ.App.1999), rev’d on other grounds, Ex parte Athens State Coll., 795 So.2d 709 (Ala.2000). Accordingly, given that precedent and the similarity in the statutory language at issue in this case to that of Williams, supra, and Walker, supra, we apply the reasoning and holdings of Williams and Walker to the facts of this case.

It is undisputed in this case that the RIF policy was necessary and that, given the financial condition of the school system, terminations of the employment of some of the Board’s employees was required pursuant to the RIF policy. As with the TTA and the Teacher Accountability Act, § 16-24B-1 et seq., Ala.Code 1975, there are no established criteria set forth in the FDA for determining which of a board’s employees should be terminated when a RIF policy must be implemented. See Williams, supra; and Walker, supra. Further, there is no allegation that the Board did not comply with its RIF policy in reaching its termination decision in this case. Regardless, the hearing officer determined that the Board erred in terminating Christopher’s employment. The hearing officer was correct that Christopher’s Service through her employment has been invaluable, a fact that is not disputed by the Board. However, once the determination that Christopher’s employment was properly terminated due to a justifiable decrease in jobs within the system was made, the hearing officer had no authority to second-guess the termination decision of the Board.

We note that the experience of this court leads us to conclude that many, if not all, of the employees in various school systems throughout the state are excellent employees who have had positive impacts on school systems through their employment. The need to terminate the employment of teachers and other school-system employees is an unfortunate burden faced by many boards of education throughout the state. We agree with the Board that the responsibility for making the difficult decisions regarding which positions to eliminate pursuant to a justified implementation of a RIF policy rests with the Board and that hearing officers and the courts “are not permitted to usurp the role of the school board.” Walker, 85 So.3d at 1016.

Based on the foregoing, we conclude that the hearing officer erred in reversing the Board’s decision to terminate Christopher’s employment pursuant to its RIF policy. We reverse the hearing officer’s decision and remand the cause for the entry of a decision in conformity with this decision.

REVERSED AND REMANDED.

PITTMAN and BRYAN, JJ., concur.

THOMAS and MOORE, JJ., concur in the result, without writings.

      . The evidence indicated that approximately 90% of the Board’s budget was expended on employee-related expenses.

      . Walker v. Montgomery County Board of Education, supra, was determined under the procedure set forth in the Teacher Accountability Act, § 16-24B-1 et seq., Ala.Code 1975, which governs the employment of school principals.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    ALABAMA DEPARTMENT OF INDUSTRIAL RELATIONS v. Alvin ROBERSON.
    2100938.
    Court of Civil Appeals of Alabama.
    May 25, 2012.

      Frank D. Marsh, gen. counsel, and Shirley Z. Brown, deputy gen. counsel, Department of Industrial Relations, for appellant.
    William J.N. Coxwell and J. Milton Cox-well, Jr., of Coxwell & Coxwell, Monroe-ville, for appellee.
   PITTMAN, Judge.

Alvin Roberson appealed to the Monroe Circuit Court from an adverse decision by the Alabama Department of Industrial Relations (“the Department”) on his claim for unemployment benefits. Following a bench trial, the circuit court entered a judgment in favor of the Department on October 29, 2010. Roberson filed a post-judgment motion on November 9, 2010, and the Department responded to that motion one week later. On November 18, 2010, the circuit court set a hearing on the motion for February 16, 2011 (the 99th day after Roberson had filed his postjudgment motion challenging the judgment in favor of the Department). On February 28, 2011, the circuit court purported to grant Roberson’s postjudgment motion and to enter a new judgment in favor of Roberson. The Department appealed to this court on April 8, 2011.

“Rule 59.1, Ala. R. Civ. P., provides that a postjudgment motion that remains pending for 90 days is deemed denied by operation of law, and the trial court loses jurisdiction to rule on that motion. See, e.g., Ex parte Davidson, 782 So.2d 237, 241 (Ala.2000). ‘ “There are only two methods listed in Rule 59.1 for extending the 90-day period: (1) the express consent of all parties to an extension of the 90-day period, [and] (2) the grant of an extension of time by an appellate court.” ’ Davidson, 782 So.2d at 241 (quoting Farmer v. Jackson, 553 So.2d 550, 552 (Ala.1989)). Neither of those methods to extend time were invoked in this case. Moreover, ‘ “the operation of Rule 59.1 makes no distinction based upon whether the failure to rule appears to be ‘inadvertent [or] deliberate.’ ” ’ Ex parte Chamblee, 899 So.2d 244, 247 (Ala.2004) (quoting Ex parte Johnson Land Co., 561 So.2d 506, 508 (Ala.1990), quoting in turn Howard v. McMillian, 480 So.2d 1251, 1252 (Ala.Civ.App.1985)).”

Smith v. Smith, 4 So.3d 1178, 1181 (Ala.Civ.App.2008).

In the present case, the circuit court’s setting a hearing date for Roberson’s postjudgment motion did not toll the running of the 90-day period. Id. In fact, Roberson’s motion had already been denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P., on February 7, 2011, before the hearing was held. Thus, the circuit court’s February 28, 2011, order purporting to grant Roberson’s motion and to enter a judgment in his favor was a nullity. See Hurth v. Correctional Med. Servs., Inc., 980 So.2d 429, 431 (Ala.Civ.App.2007).

Because the Department’s notice of appeal was not filed within 42 days of February 7, 2011, the date on which Roberson’s motion was denied by operation of law pursuant to Rule 59.1, its appeal is untimely and must be dismissed. See Rule 4(a)(3), Ala. R.App. P. (“If [a] post-judgment motion is deemed denied under the provisions of Rule 59.1 of the Alabama Rules of Civil Procedure, then the time for filing a notice of appeal shall be computed from the date of denial of such motion by operation of law, as provided for in Rule 59.1.”). The circuit court is directed to vacate its February 28, 2011, order.

APPEAL DISMISSED WITH INSTRUCTIONS.

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


text:
    Michael WADDELL v. COLBERT COUNTY-NORTHWEST ALABAMA HEALTHCARE AUTHORITY, d/b/a Helen Keller Hospital.
    2100954.
    Court of Civil Appeals of Alabama.
    May 25, 2012.

      Frank B. Potts of Potts & Young Attorneys, L.L.P., Florence, for appellant.
    Daniel F. Bealsey, Robert N. Bailey II, and Jeffrey T. Kelly of Lanier Ford Shaver & Payne P.C., Huntsville, for appellee.
   PITTMAN, Judge.

Michael Waddell appeals from a summary judgment in favor of Colbert County-Northwest Alabama Healthcare Authority, doing business as Helen Keller Hospital (“the hospital”), in a premises-liability action. We affirm.

Facts and Procedural History

On December 7, 2007, Waddell sued the hospital, asserting claims of negligence and wantonness and alleging that, on December 8, 2005, he was a visitor to the hospital when the elevator in which he was a passenger malfunctioned and plummeted from the fourth floor to the basement, injuring him. Waddell’s wife also asserted a loss-of-consortium claim. In April 2010, the trial court set the case for trial on August 23, 2010.

The hospital moved for a summary judgment on July 23, 2010, attaching, among other materials, the affidavits of Jerry Ford and Chris Garrison. Ford, the director of plant operations for the hospital, stated that, from 2003 through 2008, the hospital had had an elevator-maintenance contract with ThyssenKrupp Elevator Corporation and that Chris Garrison had been the mechanic who had usually performed the maintenance. Garrison stated that, after the elevator had plunged to the basement with Waddell as a passenger, he had determined that the cause of the malfunction was a broken armature on the elevator’s FE relay. Garrison said that the only previous problem with the relay had occurred on July 20, 2005, when the relay had “stayed up intermittently.” Garrison explained that, on that occasion, he had taken the relay apart, repaired it, and tested it, after which he had determined that it was functioning properly. A week later, after receiving a report that the elevator was not operating, Garrison had again inspected the elevator, had located a problem that was unrelated to the relay, and had fixed that problem. Garrison said that, from July 28, 2005, to December 8, 2005, the date of the incident involving Waddell, he had performed regular maintenance on the elevator and had found no problems. Ford confirmed that there had been no reports of problems with the elevator during that period.

The trial court set the hospital’s summary-judgment motion for a hearing on August 10, 2010. On August 4, 2010, Wad-dell moved the trial court to continue the hearing and to order the parties to mediation. The hospital opposed Waddell’s motion, arguing that a party seeking to delay a ruling on a summary-judgment motion must comply with Rule 56(f), Ala. R. Civ. P.; that Waddell had had three years to conduct discovery and had filed no Rule 56(f) motion; and that the discovery deadline set out in the trial court’s scheduling order had already passed. Moreover, the hospital alleged, the parties’ “pre-suit negotiations ... [had] failed in 2007, and ... after litigating this matter for almost three years, [the hospital had] no desire to settle this case, and a mediation at this juncture would be a waste of time, money and resources.” Waddell responded by filing a Rule 56(f) affidavit, asserting that the hospital had misled him into thinking that “discovery would not be necessary because the case was a dispute over damages and not liability.” The trial court granted Waddell’s motion for a continuance but did not rule on the request for mediation.

The trial court rescheduled the hearing on the summary-judgment motion for September 22, 2010. Subsequently, Waddell moved for and obtained two more continuances of the hearing. Waddell still had not filed a response in opposition to the hospital’s summary-judgment motion on January 20, 2011, the latest date set for the hearing on the motion, when the hearing was continued to February 17, 2011, because of inclement weather. Waddell filed a response in opposition to the hospital’s summary-judgment motion on February 11, 2011. That response consisted of a three-paragraph legal argument without citation to authority, an unsworn statement from a safety consultant, Dr. Robert Hall, and a “preliminary report” in which Dr. Hall stated his “tentative opinions” that the sudden plummeting of the elevator was foreseeable, that the foreseeable injury was “sudden injury or death,” and that the basic cause of the injury could be traced to “functional and premises-management defects.” The hospital moved to strike Dr. Hall’s statement and report on the basis that they were unsworn, that they failed to establish Dr. Hall’s qualifications to provide opinions in the case (and that any such opinions were wholly conclu-sory), and that they referred to documents that had not been sworn or certified.

The record does not contain a transcript of the hearing on February 17, 2011. On March 22, 2011, however, Waddell filed an amended response to the hospital’s summary-judgment motion, alleging that the trial court had allowed him extra time to submit a properly sworn affidavit and supporting documentation from Dr. Hall, as long as the new submission did not rely upon any additional evidence that had not previously been submitted. The trial court entered an order granting Waddell leave to file a new affidavit of Dr. Hall. On March 28, 2011, the hospital moved to strike Dr. Hall’s amended affidavit, asserting that, at the February 17, 2011, hearing, the tidal court had prohibited Waddell from submitting further evidence in opposition to the hospital’s summary-judgment motion and had allowed him to file only a “legal brief or argument.” The hospital pointed out that Dr. Hall’s amended affidavit contained new opinions that had not been included in the original unsworn statement.

On May 26, 2011, the trial court entered the following summary judgment in favor of the hospital:

“This cause came before this court for a hearing on the [hospital’s] motion for summary judgment. This case had been previously continued to allow [Waddell] to file opposition to said motion. At the hearing, [Waddell’s] response contained numerous deficiencies. Some of those deficiencies were due to a clerical error on the part of [Waddell’s] attorney’s office assistant. Although this court allowed a correction for clerical errors, after reviewing the matters contained therein, the correction for clerical errors did contain additional evidence. As [the hospital’s] attorney pointed out, this court informed [Waddell’s] attorney that [Waddell] would have an opportunity to file a legal argument, but that this court would accept no additional evidence, due to the fact that the case had been re-set numerous times to allow [Waddell’s] lawyer to file his pleadings.
“Upon consideration of the pleadings, the motion[ ] for summary judgment, and the arguments in court, the court is of the opinion that the [hospital] is entitled to a judgment as a matter of law, that there are no genuine issues as to any material facts, and the [hospital] has proven entitlement to summary judgment by substantial evidence.”

Waddell filed a timely notice of appeal on July 6, 2011. The appeal was transferred to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Standard of Review

Appellate review of a summary judgment is de novo. Ex parte Ballew, 771 So.2d 1040 (Ala.2000). A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see § 12-21-12(d), Ala.Code 1975.

Discussion

Waddell raises two issues on appeal: (1) whether the trial court erred in denying, sub silentio, his request for mediation in violation of § 6-6-20, Ala.Code 1975; and (2) whether he presented substantial evidence in opposition to the hospital’s motion for a summary judgment indicating that there were genuine issues of material fact as to the hospital’s liability for his injuries.

I.

Waddell argues that the trial court failed to follow the mandate of § 6-6-20, Ala.Code 1975, and Rule 2, Ala. Civ. Ct. Med. R., and thereby erred as a matter of law in not ordering mediation upon his request. It is true that § 6-6-20 “allows one party to require a court to order mediation of a dispute, irrespective of the position of any other party to the dispute,” Comment to Amendment to Rule 2, Ala. Civ.Ct. Med. R., effective June 26, 2002 (emphasis added), but it is also true that Waddell never obtained a ruling on his request for mediation and that he chose, instead, to defend against the hospital’s summary-judgment motion for the next seven months without mentioning the issue of mediation again. “ ‘ “A party cannot claim error where no adverse ruling is made against him.” ’ ” Kappa Sigma Fraternity v. Price-Williams, 40 So.3d 683, 694 (Ala.2009) (quoting Alcazar Shrine Temple v. Montgomery Cnty. Sheriffs Dep’t, 868 So.2d 1093, 1094 (Ala.2003), quoting in turn Holloway v. Robertson, 500 So.2d 1056,1059 (Ala.1986)).

Waddell cites Working v. Jefferson County Election Commission, 72 So.3d 18 (Ala.2011), in support of the argument that the trial court ruled on the motion by denying it sub silentio. In Working, three Jefferson County residents challenged the validity of a special election and prevailed on appeal. On remand, the plaintiffs sought attorney fees and costs, based on the common-benefit doctrine and their status as “prevailing parties” under 42 U.S.C. § 1988; they moved the trial court to enter an order providing for mediation of the attorney-fee issue. The trial court did not order mediation but denied the plaintiffs’ motion for an attorney-fee award on the merits. From that order, the plaintiffs appealed, arguing that the trial court had erred in sub silentio denying their motion for mediation. Our supreme court agreed that there had been a sub silentio denial. It held that mediation is mandatory when a party requests it, that the trial court had no discretion to deny the plaintiffs’ motion, and that the trial court had prematurely addressed the merits of the motion for attorney fees.

Working is distinguishable because the trial court in the present case did not sub silentio deny Waddell’s request for mediation. In light of the hospital’s response to Waddells’ request for mediation — that, “after litigating this matter for almost three years, [the hospital had] no desire to settle this case, and a mediation at this juncture would be a waste of time, money and resources” — and Waddell’s failure thereafter to press the trial court for a ruling on his request for mediation, the trial court was authorized to conclude that Waddell had reconsidered the advisability of seeking a mediated settlement and had decided, instead, to defend against the hospital’s dispositive motion on the merits. In other words, the trial court was warranted in determining that Waddell had abandoned his request for mediation.

In the context of another method of alternative dispute resolution, our supreme court has stated that “[w]hether a party’s participation in an action amounts to an enforceable waiver of its right to arbitrate depends on whether the participation bespeaks an intention to abandon the right in favor of the judicial process and, if so, whether the opposing party would be prejudiced by a subsequent order requiring it to submit to arbitration.” Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So.2d 897, 899 (Ala.1995) (emphasis added). Cf Roberts v. Roberts, 278 Wis.2d 814, 691 N.W.2d 928 (Ct.App.2004) (table) (unpublished opinion) (determining that litigant who had “requested mediation in a written pleading, but never objected to the court’s decision to proceed without it, despite numerous opportunities to do so,” had waived the right to mediation).

In the present case, Waddell’s actions for the seven-month period after August 4, 2010, bespoke an intention to abandon his right to mediation in favor of defending against the hospital’s dispositive motion. After he requested mediation, Waddell never sought a ruling on his request, nor did he file a petition for a writ of mandamus, see Ex parte Morgan Cnty. Comm’n, 6 So.3d 1145, 1147-48 (Ala.2008) (reviewing by mandamus an order denying a request for mediation because the petitioner had no other adequate remedy), or a post-judgment motion bringing the mediation request to the trial court’s attention. Instead, he sought three continuances of the hearing on the hospital’s summary-judgment motion and defended against that motion without ever mentioning his previous request for mediation.

When Waddell requested mediation on August 4, 2010, the parties had been litigating the case for 32 months. It appears that the request for mediation was an attempt to buy more time to respond to the hospital’s motion, which had been scheduled for a hearing on August 10, 2010. It further appears that Waddell was satisfied that, without insisting on mediation, he had succeeded in gaining more time to respond to the motion by having the hearing continued on three occasions. We do not believe that the mandatory mediation called for in § 6-6-20 permits Waddell’s attempt to “sandbag” the trial court by raising the issue now on appeal. Nor do we believe that reversing the trial court’s judgment with directions to order mediation would serve any useful purpose at this point.

II.

As a visitor to the hospital, Wad-dell was a business invitee to whom the hospital owed the duty to keep the premises in a reasonably safe condition by the exercise of ordinary and reasonable care. See Ex parte Wooten, 681 So.2d 149 (Ala.1996). “There is no presumption of negligence which arises from the mere fact of an injury to an invitee.” Tice v. Tice, 361 So.2d 1051, 1052 (Ala.1978). A premises owner is not an insurer of the safety of its invitees, and the doctrine of res ipsa loqui-tur is generally not applicable. Ex parte Harold L. Martin Distrib. Co., 769 So.2d 313, 314 (Ala.2000). “[A] mere malfunction [of the elevator] would be insufficient to invoke the doctrine of res ipsa loquitur under Alabama law, because ‘one can reasonably conclude that the accident could have happened without any negligence on the part of the defendant! ].’ ” Kmart Corp. v. Bassett, 769 So.2d 282, 287 (Ala.2000) (quoting Ex parte Crabtree Indus. Waste, Inc., 728 So.2d 155, 158 (Ala.1998)). “Generally, an invitee must show not only that he was injured as the result of a defective condition on the owner’s premises, but also that the owner knew or should have known of the defective condition.” Edwards v. Intergraph Servs. Co., 4 So.3d 495, 502 (Ala.Civ.App.2008).

The materials submitted in support of the hospital’s summary-judgment motion established, prima facie, that the hospital had used reasonable care in providing for the inspection and maintenance of the elevator and that it neither knew nor should have known of the existence of the defective armature on the elevator’s FE relay. In opposition to the hospital’s summary-judgment motion, Waddell failed to timely present any admissible evidence, either that the hospital failed to inspect the elevator or maintain the elevator in a reasonably safe condition or that its inspection-and-maintenance contract with ThyssenKrupp was unreasonable. See Kmart Corp. v. Bassett, 769 So.2d at 285.

Citing Oliver v. Townsend, 534 So.2d 1038 (Ala.1988), Waddell maintains that the legal argument made by his attorney in opposing the hospital’s summary-judgment motion was itself sufficient to raise a genuine issue of material fact as to the hospital’s breach of duty. Oliver is inapt; the issue in that case was whether an attorney’s statements in a trial brief could satisfy the procedural requirements of Rule 56(f), not whether such statements could satisfy the substantive requirements of Rule 56(c)(3), Ala. R. Civ. P. See Oliver, 534 So.2d at 1042 (stating that “[w]e do not mean to imply that substantive facts can be established simply by an attorney’s signature on a brief. The matters represented here relate only to procedural matters not otherwise reflected in the record ....”).

The trial court acted within the limits of its discretion in refusing to consider new evidence submitted by Waddell 33 days after the hearing on the motion. “ ‘ “ ‘[T]he trial court can consider only that material before it at the time of submission of the motion’ and ... any material filed thereafter 'comes too late.’ ” ’ ” Ex parte Organized Cmty. Action Program, Inc., 852 So.2d 92, 95 (Ala.2002) (quoting Bean v. State Farm Fire & Cas. Co., 591 So.2d 17, 20 (Ala.1991), quoting in turn Sheetz, Aiken & Aiken, Inc. v. Spann, Hall, Ritchie, Inc., 512 So.2d 99, 101 (Ala.1987)).

Based on the foregoing authorities, we affirm the judgment of the Colbert Circuit Court.

AFFIRMED.

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

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

      . Waddell also sued fictitiously named defendants who, he alleged, were the entities responsible for the purchase, installation, maintenance, and repair of the elevator, but he never amended the complaint to substitute actual defendants for the fictitiously named defendants.

      . The wife's claim was later dismissed after she and Waddell divorced.


author: BURKE, Judge.

text:
    Cleveland Bennett REESE v. STATE of Alabama.
    CR-10-1220.
    Court of Criminal Appeals of Alabama.
    Feb. 10, 2012.

      Rebecca Denean McCorkel, Dothan, for appellant.
    Luther Strange, atty. gen., and William D. Little, asst. atty. gen., for appellee.
   BURKE, Judge.

Cleveland Bennett Reese appeals the order of the circuit court removing him from a work-release program. On July 28, 2010, Reese pleaded guilty to first-degree unlawful possession of marijuana, a violation of § 13A-12-213, Ala.Code 1975, and was sentenced to 15 years’ imprisonment to be served in the Houston County Community Corrections. On March 1, 2011, a Houston County Community Corrections officer issued a delinquency report, which charged Reese with failing to comply with the rules and regulations of the work-release program by possessing “an electronic device that has video, picture, and music capabilities.” (C. 7.) This device was considered contraband, and Reese had been informed of this regulation. Thus, he was charged with third-degree promoting prison contraband. The record indicates that Reese was found to have been in possession of an electronic device on two separate occasions. On March 18, 2011, Reese filed a motion for reconsideration of the revocation of his participation in the work-release program. Subsequently, on April 19, 2011, the circuit court revoked Reese’s assignment to the work-release program as part of the community corrections program and ordered him to return to the Alabama Department of Corrections (“DOC”) to serve the remainder of his sentence. On May 2, 2011, Reese filed a notice of appeal.

On appeal, Reese argues that the circuit court abused its discretion when it removed him from the community-corrections work-release program and ordered him to serve the remainder of his sentence with the DOC. Specifically, Reese contends that he is a technical violator, pursuant to § 15-22-54(4)(l)(f)., Ala.Code 1975; thus, he argues, he should serve a period with the DOC not to exceed 90 days in accordance with the technical-violator statute. Second, Reese argues that he was not afforded a revocation hearing; therefore, he argues, the order of the circuit court removing him from the community-corrections program was erroneous.

I.

Reese submits that the revocation of his community-corrections sentence was the result of a technical violation; thus, he argues, the remainder of his sentence should be served in accordance with § 15-22-54(4)(l)(f)., Ala.Code 1975. The State claims that § 15-22-54, Ala.Code 1975, applies only to probation revocations rather than to the revocation of community-corrections status, and that Reese is thus not eligible for consideration under the technical-violator statutory provision.

Section 15-22-54(d)(l)f., Ala.Code 1975, provides, in pertinent part:

“(1) If the defendant violates a condition of probation or suspension of execution of sentence, the court, after a hearing, may implement one or more of the following options:
“f. If the probation violation is a technical violation, defined as a violation of a condition of probation other than the commission of a new offense, an eligible offender may be required to serve a term of not more than 90 days imprisonment in a Department of Corrections facility, which may include participation in the restart program, LIFETech program, or a technical violator program or, if no space is available in a Department of Corrections facility, not more than 90 days in the county jail.”

As to Reese’s argument that he is entitled to be sentenced as a technical violator because his work-release community-corrections sentence was revoked, this Court recently addressed this issue in Ballard v. State, 85 So.3d 485, 486-87 (Ala.Crim.App.2011). In Ballard, where the community-corrections aspect of Ballard’s sentence had been part of a split sentence rather than a condition of probation, this Court stated:

“Although the revocation of a sentence being served under a community-corrections program is treated the same as a probation revocation, see § 15-18-175(d)(3)b., Ala.Code 1975, and Ex parte Hill, 71 So.3d 3 (Ala.2009), serving a term of probation and serving in a community-corrections program as part of a split sentence are different. A person who is serving a term of probation has had his or her sentence suspended, see § 15-22-50, Ala.Code 1975, whereas a person serving a community-corrections sentence as part of a split sentence is serving the confinement portion of his or her sentence and is in the custody of the Department of Corrections. See § 15-18-171.1, Ala.Code 1975, and § 15-18-175(d)(3)e., Ala.Code 1975. Section 15-22-54.1, Ala.Code 1975, applies to inmates currently incarcerated following revocation of probation. Ballard was not serving a term of probation, but, instead, was serving his split sentence in a community-corrections program. Ballard’s split sentence was revoked.
Therefore, Ballard is not eligible to be resentenced under § 15-22-54.1, Ala. Code 1975. Accordingly, the circuit court properly held that it did not have jurisdiction to resentence Ballard.”

85 So.3d at 486-87.

Similarly, Reese was not serving a term of probation, but instead was serving his sentence in a community-corrections program, and therefore he is not eligible to be resentenced under § 15 — 22—54(d)(l)f., Ala.Code 1975. Consequently, the circuit court did not abuse its discretion in revoking Reese’s sentence to the community-corrections program.

II.

Reese claims that the circuit court erred by not conducting a proper probation-revocation hearing before removing him from the community-corrections program. The State argues that Reese’s claim that the hearing held by the circuit court was insufficient is meritless.

According to the record, the hearing went as follows:

“THE COURT: Okay. He has a fifteen year sentence, which he has been serving in Community Corrections. And on January 24th, Community Corrections reports that he was in possession of some electronic device that has video and music capabilities. This is considered contraband. Are they informed of that?
“COMMUNITY CORRECTIONS OFFICER: Yes, Your Honor. Everyone that comes into Community Corrections is informed of the rules and signs a document that has the rules on it. I have that document if you’d like to see it, your Honor.
“THE COURT: Was this a cell phone? Is that what it was?
“COMMUNITY CORRECTIONS OFFICER: Yes, sir. It was kind of PDA-type of cell phone with multi-func-tional devices. It could make cellular calls, as well as pictures, video, music, and stuff like that.
“THE COURT: Did you not understand you weren’t supposed to have that?
“[Reese]: Sir, I understand. That is not what it was. It was an MP3 player. It is set for trial, actually, next week in Judge Lewis’s courtroom. I had my folks to bring my manual before I go there, because it didn’t do no phone calls, no texting. It was nothing of that nature.
“COMMUNITY CORRECTIONS OFFICER: It is still contraband, Your Honor. If it can produce pictures, videos, and music, it is still contraband.
“THE COURT: Okay.
“COMMUNITY CORRECTIONS OFFICER: They are only allowed to have — if it’s an MP3 player, they are only allowed to have it where it has no LCD screen and you can’t access music and pictures and video. They can only have music, not a multi-functional device where you can take pictures of yourself or videos or whatnot.
“THE COURT: Okay. Anything further?
“[Reese]: Like I said, what I was telling him, I have a trial set for that, therefore, this doesn’t exist, because I haven’t been found guilty of that. So that would not be grounds for them to bring me back for that — like I said, it’s set for trial in Judge Lewis’s courtroom next week.
“THE COURT: And you don’t think they have got a right to ask that you be revoked until you have a trial? Is that what you are saying?
“[Reese]: I feel like if that is grounds for what they are doing, I feel like that should be taken care of first, yes, sir, I do.
“THE COURT: Okay.
“[Prosecutor]: Judge, I think there is a slight miscommunication. The device we are talking about was on January 24th. And then on March 1st Officer Price tells me he did have a cell phone.
“COMMUNITY CORRECTIONS OFFICER: He had a cell phone on March 1st. The device we are talking about currently was on January 24th.
“THE COURT: So you had two different occasions?
“COMMUNITY CORRECTIONS
OFFICER: Two different occasions. Officer Duffy and I or the DSI guard were performing cell searches on that day. And he was actually in his cell getting dressed for work and we found that cell phone in his pants pocket on that day. And he did admit that that cellular phone was his. I also have that in evidence if we need to bring that up here. I didn’t charge him again with promoting prison contraband on that second occasion. I just figured I’d remove him and save him another court date.
“THE COURT: Okay. You are ordered to be delivered to the proper authorities for execution of your sentence.
“[Reese]: Your Honor, may I ask you a question? On what grounds?
“THE COURT: For being in possession of contraband. What do you think?
“[Reese]: I wasn’t charged with contraband.
“THE COURT: Well, you were by this thing today.”

(R. 3-6.)

In Ex parte Hill, 71 So.3d 3 (Ala.2009), the Alabama Supreme Court explained:

“We first note that the revocation of a sentence served under a community-corrections program is treated the same as a probation revocation. See § 15-18-175(d)(3)b., Ala.Code 1975 (‘A revocation hearing shall be conducted before the court prior to revocation of the community corrections sentence. The court shall apply the same due process safeguards as a probation revocation proceeding and may modify or revoke the community punishment sentence and impose the sentence that was suspended at the original hearing or any lesser sentence....’); Richardson v. State, 911 So.2d 1114 (Ala.Crim.App.2004) (treating the revocation of a community-corrections sentence as a probation revocation); see also Jackson v. State, 867 So.2d 365 (Ala.Crim.App.2003) (providing that the rules of preservation apply to probation-revocation proceedings unless no revocation hearing is conducted, the record does not contain an adequate written or oral revocation order, or the probationer was not informed of his right to counsel). We hereinafter sometimes in our discussion of the due-process issue presented here make reference to probationers and probation-revocation proceedings.”

Ex parte Hill, 71 So.3d at 8-9.

Moreover, in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the United States Supreme Court set forth the minimum constitutional requirements that must be met before probation may be revoked. The requirements include:

“ ‘(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.’ ”

Andrews v. State, 975 So.2d 392, 394 (Ala.Crim.App.2007) (footnote omitted) (quoting Morrissey v. Brewer, 408 U.S. at 489; see also Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); and Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975).

In the present case, the record indicates that Reese was given written notice of the claimed violations, which included both the January 24 incident concerning the possession of a MP3 player and the March 1 incident concerning the possession of a cellular telephone while in the community-corrections program. The circuit court thereafter held a hearing to consider the first instance, and the second instance had been scheduled for a hearing on a later date. The correctional officer indicated that Reese admitted to being in possession of the cellular telephone; however, that charge was not the basis of the hearing and Reese did not clearly admit to possessing the MP3 device, nor did the judge state that his holding was based on an admission. Rather the court appeared to base its decision on the unsworn statements of the correctional officer. Moreover, it appears that Reese did not understand the charge nor was he or his attorney given an opportunity to cross-examine the witness or to present his claimed evidence. Thus, this proceeding did not constitute the “meaningful hearing” to which he was entitled under Morrissey v. Brewer and Gagnon v. Scarpelli, and Armstrong v. State. Ex parte Hill, 71 So.3d 3, 9-10 (Ala.2009).

Based on the foregoing, this case is due to be remanded to the circuit court for Reese to be afforded the opportunity to present evidence and witnesses and to confront the DOC’s witnesses. A return, including the circuit court’s findings, should be returned to this Court within 42 days of this opinion.

REMANDED WITH INSTRUCTIONS.

WINDOM, P.J., and KELLUM and JOINER, JJ., concur.

WELCH, J., dissents.

      . On the first occasion, Reese possessed a MP3 device; this possession was the basis of the present ruling. The later occasion concerned his possession of a cellular phone that he admitted was his.

      . Section 15-18-171(6) defines a community-corrections program as "[a]ny program designed as an alternative to incarceration and maintained by a county commission or an authority or nonprofit entity for the purpose of punishing and for correcting a person convicted of a felony or misdemeanor or adjudicated a youthful offender and which may be imposed as part of a sanction, including, but not limited to confinement, work release, day reporting, home detention, restitution programs, community service, education and intervention programs, and substance abuse programs.”

       Note from the reporter of decisions: On May 11, 2012, on return to remand, the Court of Criminal Appeals affirmed, without opinion.