author: MURDOCK, Justice.

text:
    Ex parte MERSCORP, INC., and Mortgage Electronic Registration Systems, Inc. (In re Nancy O. Robertson, in her official capacity as Probate Judge of Barbour County, on behalf of herself and all others similarly situated v. MERSCORP, Inc., and Mortgage Electronic Registration Systems, Inc.) Ex parte U.S. Bank National Association (In re Walker County, on behalf of itself and all other similarly situated Alabama counties, and Rick Allison, Walker County Probate Judge v. U.S. Bank National Association).
    1111370 and 1111567.
    Supreme Court of Alabama.
    Sept. 20, 2013.

      Barry A. Ragsdale and R. Ryan Daugherty of Sirote & Permutt, P.C., Birmingham; and Courtney R. Potthoff and Joel P. Smith, Jr., of Williams, Potthoff, Williams & Smith, LLC, Eufaula, for petitioners MERSCORP, Inc., and Mortgage Electronic Registration Systems, Inc.
    Larry B. Childs of Waller Lansden Dortch & Davis, LLP, Birmingham; and Henry F. Reichner of Reed Smith LLP, Philadelphia, Pennsylvania, for petitioner U.S. Bank National Association.
    W. Lewis Garrison, Jr., and Christopher B. Hood of Heninger Garrison Davis, LLP, Birmingham, for respondent Probate Judge Nancy O. Robertson.
    James C. King, Henry C. Wiley, Jr., Franklin G. Williams, and Keith McKerall of King, Wiley & Williams, Jasper; Richard Frankowski of Burke, Harvey & Fran-kowski, Birmingham; and Debra Brewer Hayes of Reich & Binstock, Houston, Texas, for respondent Walker County, on behalf of other similarly situated Alabama counties.
   MURDOCK, Justice.

Before us are two petitions for a writ of mandamus seeking review of orders denying motions to dismiss the actions based on the alleged lack of standing by the plaintiffs and, in turn, the alleged lack of subject-matter jurisdiction of the trial courts and seeking an order requiring the trial courts to grant the motions to dismiss. We have consolidated the petitions for the purpose of issuing one opinion, because the issues raised in the two petitions are identical.

In case no. 1111567, U.S. Bank National Association (“U.S. Bank”), the defendant below, petitions this Court for a writ of mandamus requiring the Walker Circuit Court to dismiss an action filed by Walker County (“the County”) on behalf of a putative class of all Alabama counties similarly situated to Walker County in relation to U.S. Bank and seeking declaratory, injunc-tive, and monetary relief. In case no. 1111370, MERSCORP, Inc. (“MER-SCORP”), and Mortgage Electronic Registration Systems, Inc. (“MERS”) (hereinafter referred to collectively as “the MERS defendants”), petition this Court for a writ of mandamus requiring the Barbour Circuit Court to dismiss an action filed by Barbour Probate Judge Nancy 0. Robertson, in her official capacity, on behalf of a putative class of all probate judges in Alabama, also seeking declaratory, injunctive, and monetary relief. We deny the petitions.

I. Facts and Procedural History

The general factual background required to understand the nature of the actions brought by the County and by Judge Robertson is the same. At issue is a particular aspect of the mortgage-securi-tization process. The process begins when a borrower secures a note to pay a lender by executing a mortgage on the real property the borrower, or mortgagor, purchases with the loan from the lender, or mortgagee. The mortgage is recorded in the probate office of the county in which the property is located. See §§ 35-4-50, 35-4-51, 35^-62, 35-4-90, Ala.Code 1975 (“the recording statutes”). Loans between borrowers and lenders compose the primary mortgage market.

The note associated with the mortgage is a negotiable instrument, however, under Article 3 of the Uniform Commercial Code, and as such it can be bought and sold. When loans between borrowers and lenders are pooled and sold on the secondary mortgage market, investors benefit by receiving a low-risk investment and borrowers benefit by receiving loans at lower interest rates. Such is the process of sec-uritization.

“The process of ‘securitization’ can be described as the process of distributing risk by aggregating debt instruments in a pool, then issuing new securities backed by the entire pool. This reduces the risk of investors’ loss from default on any one debt instrument. For mortgage loans, investment banks take pools of real property loans and then use the cash flows from the loan payments to pay the bondholders secured by the underlying mortgage loans. In the residential context, the process of securitization can be boiled down to the pooling of various residential mortgage loans and issuing securities backed by the mortgage loans.
“The general process of creating a residential mortgage-backed securitization (RMBS) is to first have a lender or lenders originate various mortgage loans to borrowers. Next, the originating lenders transfer these loans to a freestanding entity, known generally as a SPV, specifically created for the securiti-zation. As an independent entity, the SPV is protected from any bankruptcy or insolvency proceedings of the originating lender. The SPV aggregates the mortgage loans into pools and issues securities to investors, with the proceeds from the securities being used to pay the originating lender for selling the loans. Thereafter, the investors of these securities receive the proceeds from, and the credit risks of, the mortgage loans in the underlying pool. In many cases, the originating lender will continue to collect the loan payments from the borrowers as they become due and will simply pass the collected monies onto the investors. The investors are protected, by the laws governing assignments, from certain origination and servicing risks assumed by the originating lenders and servicers, and therefore the investors can accept a lower interest rate and yield on the loans.”

Derrick M. Land, Residential Mortgage Securitization and Consumer Welfare, 61 Consumer Fin. L.Q. Rep. 208, 209 (2007) (footnotes omitted).

The rights and obligations of the parties in the above-described securitization process typically are set forth in a pooling and servicing agreement (“PSA”). The PSA also explains the role of the trustee that holds the residential mortgage-backed securities (“RMBS”). U.S. Bank is a trustee for certain RMBS trusts that hold, among others, loans on the secondary mortgage market secured by mortgages on real property in the County.

Although the development of the secondary mortgage market benefited both investors and mortgagors, the “recording process became cumbersome to the mortgage industry, particularly as the trading of loans increased.” Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1039 (9th Cir.2011). This is where MER-SCORP and MERS entered the process. MERS was created to streamline the mortgage process through the use of electronic documentation. “MERS is a private electronic database, operated by MER-SCORP, Inc., that tracks the transfer of the ‘beneficial interest’ in home loans, as well as any changes in loan servicers.” Cervantes, 656 F.3d at 1038. “Officially launched in 1997, [MERS] is a corporation owned by its members who are typically also users of the MERS system. It is funded by membership and transaction fees that members pay for use of the system.” Robert E. Dordan, Mortgage Electronic Registration Systems (MERS), Its Recent Legal Battles, and the Chance for A Peaceful Existence, 12 Loy. J. Pub. Int. L. 177, 181 (2010). “MERS does not solicit, fund, service, or actually own any mortgage loans.” Christopher L. Peterson, Foreclosure, Subprime Mortgage Lending, and the Mortgage Electronic Registration System, 78 U. Cin. L.Rev. 1359, 1361 (2010). Instead, when a mortgage is executed, the borrower and the lender designate MERS as mortgagee “acting solely as nominee for the Lender and Lender’s successors and assigns.” “The loan is then assigned to a seller for repackaging through securitization for investors. Instead of recording the assignment to the seller or the trust that will ultimately own the loan, however, the originator pays MERS a fee to record an assignment to MERS in the county records.” Peterson, 78 U. Cin. L.Rev. at 1370. “The benefit of naming MERS as the nominal mortgagee of record is that when the member transfers an interest in a mortgage loan to another MERS member, MERS privately tracks the assignment within its system but remains the mortgagee of record.” Jackson v. Mortgage Elec. Registration Sys., Inc., 770 N.W.2d 487, 490 (Minn.2009). Thus, “[t]he MERS system is designed to allow its members, which include originators, lenders, servicers, and investors, to assign home mortgage loans [on the secondary market] without having to record each transfer in the local land recording offices where the real estate securing the mortgage is located.” Id.

Judge Robertson filed her action in her official capacity as probate judge on November 22, 2011, in the Barbour Circuit Court against MERSCORP and MERS. The complaint sought class-action status on behalf of “all Probate Judges of the State of Alabama” because the MERS defendants allegedly “systematically obstruct Ala.Code §§ 35-4-50, 35-4-51, and 35-4-62,” and allegedly interfere with the duty of all probate judges to keep records of “conveyances of real property” as required by § 12-13-43, Ala.Code 1975. The complaint alleges that “[t]he [MERS] Defendants, to profit their shareholders and customers, operate to circumvent the laws of Alabama which prescribe the recording of interests in real estate inclusive of conveyances and grants of such interests. The circumvention obstructs such laws, preventing their fulfillment.” Judge Robertson sought a judgment declaring that the MERS defendants’ conduct is “an obstruction to Alabama law,” a permanent injunction prohibiting the MERS defendants from engaging in their allegedly illegal conduct and requiring them to comply with Alabama’s recording statutes, “a thorough and fully accurate accounting to [Judge Robertson] and Class of all interests in real estate that have been transferred to and within the MERS system within the last ten (10) years,” and reimbursement to “the Probate Courts of Alabama for the recording fees which would have been paid but for the [MERS] Defendants’ obstruction and circumvention of Alabama law.”

On May 11, 2012, the MERS defendants filed an amended motion to dismiss the complaint. The MERS defendants argued, among other things, that Judge Robertson lacked standing to bring a private cause of action under the recording statutes. Judge Robertson filed a response in opposition to the motion to dismiss. The Barbour Circuit Court conducted a hearing on the motion on June 25, 2012. On July 10, 2012, the Barbour Circuit Court denied the MERS defendants’ motion to dismiss the complaint. On July 19, 2012, the MERS defendants petitioned this Court concerning the circuit court’s denial of their motion to dismiss the complaint.

The County filed its action on March 21, 2012, in the Walker Circuit Court against U.S. Bank. The complaint sought

“to certify a Class of all Alabama counties with mortgages recorded in their offices of judge of probate that designate MERS as ‘nominee’; that are attached to notes deposited in RMBS trusts administered by Defendant U.S. National Bank, as Trustee; and that lack all recorded mortgage assignments from the originating lender to the depositor to the trust.”

The complaint alleged that U.S. Bank

“did not record, or cause to be recorded, certain mortgage assignments at the time the trusts were created, nor did it pay the accompanying fees, which are preconditions for enjoying the enumerated benefits. Rather, U.S. Bank merely transferred notes to the trusts it administered and recorded the change in note ownership only in the records of Mortgage Electronic Registration Systems, Inc. (‘MERS’), a private corporation created for the express purpose of circumventing the payment of mortgage assignment fees to county governments.
“U.S. Bank failed to use the County’s recording services for the assignments necessary for the securitization, yet it represented to the public and to RMBS investors that the RMBS trusts had the benefit of perfected mortgages, a benefit that could only be obtained by using the County’s services for recording assignment.”

The County sought to recover damages based on unjust enrichment because, it argues, U.S. Bank “received the benefits of recording its mortgages” without paying the County for those benefits. Those benefits included “the ability to represent that all rights to mortgage loans had been deposited in the trust, free and clear of any encumbrance.” The County also sought a judgment declaring that “notes deposited in RMBS trusts are unperfected when the mortgages in the Counties’ offices of judge of probate list an originating lender, with MERS as nominee” and mortgage assignments are not recorded in the probate office of the county in which the mortgaged property is located. It also sought a declaration “establishing that MERS, and U.S. Bank-administered trusts receiving assignments from MERS, were not the parties in interest to prosecute foreclosures for notes in RMBS trusts administered by U.S. Bank as Trustee.” Finally, the County requested on behalf of itself and the putative class “a mandatory injunction requiring that [U.S. Bank] record all prior assignments from the originating lender to the depositor to the trust, and pay the associated recording fees, in order to clear title to properties in the Counties.”

U.S. Bank filed a motion to dismiss the County’s complaint on May 25, 2012, arguing, among other things, that the County lacked standing because “[t]he recording law does not authorize a cause of action to compel the recording of conveyances of interest in land.” (Emphasis added.) The County filed its opposition on August 2, 2012, and the Walker Circuit Court held a hearing on the motion on August 7, 2012. On August 27, 2012, the Walker Circuit Court denied U.S. Bank’s motion to dismiss the complaint. On September 10, 2012, the County filed a first amended complaint in which it added Walker County Probate Judge Rick Allison as a plaintiff to the action. On September 11, 2012, U.S. Bank filed its petition for the writ of mandamus with this Court.

II. Standard of Review

“ ‘ “The writ of mandamus is a drastic and extraordinary writ, to be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993); see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala.1995).” Ex parte Carter, [807 So.2d 534,] 536 [(Ala.2001) ].’
“Ex parte McWilliams, 812 So.2d 318, 321 (Ala.2001).
“ ‘Subject to certain narrow exceptions ..., we have held that, because an “adequate remedy” exists by way of an appeal, the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus.’ Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 761-62 (Ala.2002).”

Ex parte Kohlberg Kravis Roberts & Co., 78 So.3d 959, 965-66 (Ala.2011).

III. Analysis

A. The Parties’ Primary Arguments

As the standard of review indicates, we do not ordinarily entertain mandamus petitions concerning the denial of a motion to dismiss. One of the few “narrow exceptions” we have carved out of this general rule is when the motion denied by the trial court is one that challenged that court’s subject-matter jurisdiction, as in the case in which a motion to dismiss raises a question of “standing.” E.g., Ex parte Health-South Corp., 974 So.2d 288, 292 (Ala.2007). The petitioners argue for the benefit of this exception in the present cases based on the fact that their motions framed the issues presented as “standing” issues and, thus, as subject-matter-jurisdiction issues.

The manner in which the MERS defendants argue that Judge Robertson lacks “standing” is telling. To begin, they state that Judge Robertson “does not and cannot allege an injury in fact causally connected to a failure to record conveyances and grants of interests in real estate with the Probate Court.” (Emphasis added.) This is so, they say, first because “the law imposes no duty to record conveyances and grants of interests in real estate in the public land records” (emphasis added), and second because “Judge Robertson is not (and is not alleged in the Complaint to be) a purchaser or encumbrancer of land whom Alabama’s recording statutes are solely designed to protect.” In short, the MERS defendants assert,

“[njothing in the plain language of these statutes indicates that the Legislature intended to create a private right of action allowing a probate judge to seek damages or otherwise enforce the statutes, much less a right of action to recover fees which the probate judge was never entitled to impose or collect, in connection with instruments that are not alleged to have been recorded.”

(Emphasis added.)

Among other things, Judge Robertson responds to this argument by stating that she has standing because the MERS defendants’ failure to record the subject conveyances deprived Barbour County of recording fees to which it was entitled by statute. See § 12-19-90, Ala.Code 1975. Judge Robertson contends that she has an interest in those fees in her official capacity and, thus, that, when those fees are not collected, both she and Barbour County suffer an injury.

The MERS defendants respond to Judge Robertson’s protestations of standing by reiterating that the recording statutes provide only that interests in real property “can” or “may” be recorded to protect against future purchasers and encumbrances, i.e., in order for a security interest to be perfected, but that unrecorded conveyances and grants of interest in real estate are nonetheless perfectly valid. They also contend that Judge Robertson’s statutory duties of recording apply only when an instrument is submitted to the probate office for recording; the statutes, they say, do not and cannot fault her for failing to record transactions that have not been submitted to her office.

U.S. Bank’s primary argument is similar to that of the MERS defendants. It contends that “Alabama courts ... have repeatedly stressed that there is no duty to record, that unrecorded interests are valid as between the parties, and that the only ‘penalty* for not recording is that one fore-goes [sic] the protections of the recording laws.” (Emphasis added.) U.S. Bank concludes that, “[wjithout a duty to record, there can be no standing to assert a claim based on an alleged failure to record.” (Emphasis added.) In addition, U.S. Bank contends that “the law is clear that the Judge of Probate ... cannot collect fees for services that are neither rendered nor required. The Judge of Probate can only collect fees ‘for service[s] provided by the probate offices.’ Ala.Code [1975,] § 12-19-90.... ” U.S. Bank reasons that the probate judge therefore has no interest in fees that are not collected for unrecorded assignments.

Among other things, the County contends that, “but for [U.S. Bank’s] use of MERS, [the County] would have received mortgage assignment fees in the securiti-zation process and, thus, it alleged a com-pensable financial injury.” The County takes the position that Alabama’s recording statutes contain mandatory language that requires the recording of real-property ownership transfers. The County also contends it has been injured because, it says, U.S. Bank’s “conduct has obscured [the County’s] priority rights as a tax lien creditor and code violation creditor, thereby causing injury.”

In its reply, U.S. Bank reiterates that “[b]ecause there is no duty to record assignments under well-established Alabama law, the county does not allege an injury-in-fact causally connected to a failure to record.” (Emphasis added.) It also restates that even if recording was mandatory for all promissory-note assignments under Alabama law, no evidence suggests a legislative intent to allow a private cause of action to enforce that mandate.

B. Standing and Failure to State a Claim

We will not address whether the petitioners’ arguments related above as to what is and what is not required by Alabama’s recording statutes are correct. The questions raised by these arguments concern whether the legal theories asserted by the plaintiffs are recognized by Alabama law; they are not questions of the plaintiffs’ “standing” to assert and attempt to prove those legal theories in our courts. In fact, the petitions before us constitute further examples of the understandable, but repeated, confusion in our jurisprudence between the issues of standing and of the failure to state, or prove, a cognizable claim. The United States Supreme Court itself has acknowledged that “the question whether a plaintiff states a claim for relief ‘goes to the merits’ in the typical case, not the justiciability of a dispute, ... and conflation of the two concepts can cause confusion.” Bond v. United States, — U.S. -, -, 131 S.Ct. 2355, 2362, 180 L.Ed.2d 269 (2011); see also 13A Charles Alan Wright, Arthur K. Miller & Edward H. Cooper, Federal Practice & Procedure § 3531 (3d ed. 2008) (noting that “[t]he question whether the law recognizes the cause of action stated by a plaintiff is frequently transformed into inappropriate standing terms”).

This Court similarly has explained that

“the focus of an inquiry into standing is not on the viability of the legal theory asserted; rather, the focus is on whether the plaintiff is the ‘proper part[y] to bring the action.’ If the legal theory itself is not a viable one under applicable law, that is a different question. The question whether the right asserted hy [the plaintiff] is an enforceable one in the first place, i.e., whether [the plaintiff] has seized upon a legal theory our law accepts, is a cause-of-action issue, not a standing issue.”

Wyeth, Inc. v. Blue Cross & Blue Shield of Alabama, 42 So.3d 1216, 1220 (Ala.2010) (emphasis added).

The MERS defendants argue that “the law imposes no duty” on them to record all assignments and transfers of notes attached to mortgages on real property. They expressly assert that the plaintiffs do not have a legislatively created “private right of action.” These arguments, however, go to the viability of the plaintiffs’ legal theories, not an issue of “standing” to assert those theories.

To like effect are U.S. Bank’s arguments. Put simply, U.S. Bank’s position is that the recording statutes do not impose a duty to record loan assignments and transfers and, therefore, that the probate judges cannot complain of the failure to record such assignments and transfers. Clearly, this is an argument that challenges the plaintiffs’ interpretation of the recording statutes and, thus, the viability of the plaintiffs’ legal theory under Alabama law.

We previously have observed that “our courts too often have fallen into the trap of treating as an issue of ‘standing’ that which is merely a failure to state a cognizable cause of action or legal theory, or a failure to satisfy the injury element of a cause of action.” Wyeth, 42 So.3d at 1219. See also Steele v. Federal Nat’l Mortg. Ass’n, 69 So.3d 89 (Ala.2010) (quoting and relying upon Wyeth for the above-stated principle); Ex parte Kohlberg Kravis Roberts & Co., 78 So.3d at 979 (quoting at length from Wyeth with approval). In Ex parte BAC Home Loans Servicing, LP, [Ms. 1110373, September 13, 2013] — So.3d-(Ala.2013), this Court recently rejected the notion that questions, not unlike those raised here, regarding the cog-nizability of the plaintiffs’ legal theories, or claims, are “standing” issues rather than “cause of action” issues. We again reject that notion. Accordingly, the efforts to frame the questions before us as questions of standing and to thereby implicate the subject-matter jurisdiction of the trial courts must fail.

IV. Conclusion

For the reasons explained above, these cases do not fall within the subject-matter-jurisdiction exception to our general rule that we will not engage in mandamus review of a trial court’s denial of a motion to dismiss. We therefore deny the request for mandamus relief in both of the cases before us.

1111370 — PETITION DENIED.

1111567 — PETITION DENIED.

MOORE, C.J., and STUART, BOLIN, PARKER, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

      . Section 35-4-50, Ala.Code 1975, provides:
      "Conveyances of property, required by law to be recorded, must be recorded in the office of the judge of probate.” Section 35-4-51, Ala. Code 1975, provides:
      "Except as may be otherwise provided by the Uniform Commercial Code, all deeds, mortgages, deeds of trust, bills of sale, contracts or other documents purporting to convey any right, title, easement, or interest in any real estate or personal property and all assignments of mortgages, deeds of trust or other securities for debt or extension agreements with respect thereto, when executed in accordance with law, shall be admitted to record in the office of the probate judge of any county. Their filing for registration shall constitute notice of their contents.”
      Section 35-4-62(a), Ala.Code 1975, provides:
      "Conveyances of real property shall be recorded in the county in which the property is situated.” Section 35-4-90(a), Ala.Code 1975, provides:
      "(a) All conveyances of real property, deeds, mortgages, deeds of trust or instruments in the nature of mortgages to secure any debts are inoperative and void as to purchasers for a valuable consideration, mortgagees and judgment creditors without notice, unless the same have been recorded before the accrual of the right of such purchasers, mortgagees or judgment creditors.”

      . A "quirk of MERS is that.... much of what is done in the name of MERS is in reality being done by the staff of member banks, but in their capacity as officers of MERS.” Dor-dan, 12 Loy. J. Pub. Int. L. at 182. This is because
      "MERS instructs its members to have someone on their own staff become a certified MERS officer with authority to sign on behalf of MERS. This procedure allows the member that owns the indebtedness to assign or foreclose the mortgage loan in the name of MERS, eliminating the need to either work through a third party or to execute an assignment of the security instrument from MERS back to the member.”

        Jackson v. Mortgage Elec. Registration Sys., Inc., 770 N.W.2d 487, 491 (Minn.2009).

      . The MERS defendants’ first motion to dismiss was filed in federal court when the action had been removed to that court, but the motion was not ruled upon before the action was remanded to the Barbour Circuit Court.

      . The circuit court also entered a separate order concerning discovery matters, but that order is not before us.

      . Judge Robertson also answers that she has standing because the MERS defendants’ "systematic” circumvention and obstruction of the recording statutes interferes with her duties under those statutes. See § 12-13-43, Ala.Code 1975; see also §§ 45-3-84.116, 43-3-84.90, and 45-3-84.91 (local statutes requiring the collection of recording fees).


source: Caselaw Access Project

author: PARKER, Justice. MURDOCK, Justice

license: Public Domain

text:
    Jamie GADDY v. Lisa Arleen BRASCHO.
    1111376.
    Supreme Court of Alabama.
    Sept. 20, 2013.
    Bruce J. McKee, S. Hughston Nichols, and Ashley Reitz Peinhardt of Hare, Wynn, Newell & Newton, LLP, Birmingham, for appellant.
    John D. Herndon and Jennifer Dever-eaux Segers of Huie, Fernambucq & Stewart, LLP, Birmingham, for appellee.
   PARKER, Justice.

Jamie Gaddy appeals the judgment of the Calhoun Circuit Court (“the circuit court”) dismissing with prejudice Gaddy’s medical-malpractice action against Lisa Arleen Brascho, a certified registered-nurse anesthetist. We dismiss the appeal.

Facts and Procedural History

An extensive recitation of the facts is not necessary for purposes of resolving this appeal. On November 8, 2007, J. Patrick Stewart, M.D., with the assistance of Bras-cho, performed a laproscopic hysterectomy on Gaddy (“the procedure”). In her complaint, Gaddy alleges that Brascho breached the standard of care in regard to the placement and monitoring of shoulder braces used during the procedure to hold Gaddy’s body in the proper position. Specifically, at issue was whether the shoulder braces were placed over Gaddy’s clavicle area rather than her acromion process. Gaddy alleges that Braseho’s alleged breach of the standard of care caused Gad-dy to suffer an injury to her brachial plexus.

On November 6, 2009, Gaddy filed a medical-malpractice action under the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et seq., Ala.Code 1975, against Brascho, among others. Before the trial, Gaddy’s claims against all the defendants but Brascho were disposed of. The trial court then set the case against Brascho for trial on June 18, 2012.

On June 8, 2012, Brascho filed a motion in limine requesting that the trial court “enter an [o]rder preventing [Gaddy] from attempting to introduce into evidence or otherwise argue to the jury that there is allegedly a higher probability of injury if the [shoulder] supports [were placed] over [Gaddy’s] acromion process.” The deposition testimony of Gaddy’s expert witnesses, Dr. J. Patrick Stewart and Dr. Amir M. Torabi, were the subject of Bras-cho’s motion in limine. Brascho’s motion in limine was based, in part, on the following argument:

“[Gaddy] contends that instead of the shoulder support being on the acromion process, the shoulder supports were located over the clavicle. The physicians have testified that the type of injury suffered by [Gaddy] can be caused by the shoulder supports being in either position.
“Since there is absolutely no evidence that the shoulder supports were improperly positioned, [Gaddy] is expected to attempt to introduce testimony that if the shoulder supports are over the clavicle, that statistically there is a higher chance of injury than if the shoulder supports are on the acromion process. However, this statistical evidence is immaterial, irrelevant and unduly prejudicial as it relates to the positioning of the shoulder supports in this particular case and immaterial, irrelevant and unduly prejudicial on the issue of causation.
“Of course, [Gaddy’s] burden is to introduce substantial evidence that more probably than not, there was a breach of the standard of care and that this breach of the standard of care probably caused the injury. The statistical evidence that we expect [Gaddy] to attempt to introduce is not relevant to show the location of the supports or causation.”

On June 11, 2012, the trial court granted Brascho’s motion in limine, as follows:

“Motion for [sic] in limine regarding statistical evidence filed by Brascho ... is hereby granted. [Gaddy] is hereby ordered to refrain from, directly or indirectly, making any mention to the jury of statistical evidence regarding the probability of the cause of [Gaddy’s] injury, at anytime during the trial of this case.”

It appears that Gaddy interpreted the trial court’s pretrial order granting Brascho’s motion in limine as having the practical effect of prohibiting Dr. Stewart and Dr. Torabi from testifying at trial.

On June 18, 2012, before the trial began and even though the trial court had already granted Brascho’s motion in limine, the trial court heard oral arguments concerning Brascho’s motion in limine, among other pending motions. After hearing oral argument on Brascho’s motion in limine, the trial court reaffirmed its June 11, 2012, order granting the motion. The following exchange between the trial court and Gad-dy’s trial counsel then occurred:

“THE COURT: Well, all right. Based on the fact that I have now granted that motion in limine, does the plaintiff wish to go forward?
“[Gaddy’s trial counsel]: Your Honor, I do not believe so.
“THE COURT: All right. There being no objection by the defendant, we will show that this ease is dismissed, and if you want to appeal, you certainly may do so.
“[Gaddy’s trial counsel]: Okay.”

On June 19, 2012, the trial court entered the following order dismissing Gaddy’s complaint against Brascho:

“On June 8, 2012, ... Bras[eh]o ... filed various [m]otions in [l]imine regarding evidentiary issues. On June 11, 2012, this [e]ourt entered an [o]rder granting various motions and setting other motions for oral argument to be held on June 18, 2012, the morning the trial was to begin.
“On June 18, 2012, this [c]ourt held oral argument on the [m]otions in [[li-mine. After consideration of the arguments of counsel, during the hearing, this [c]ourt in open [c]ourt granted [Brascho’s] [m]otion in [l]imine on issues which [Gaddy] acknowledged prevented her from meeting her burden of proof.
“Therefore, it is ordered, adjudged and decreed that the case is dismissed with prejudice, with each party to bear its own costs. Since this [o]rder dismisses all parties and claims, this is a [f]inal [o]rder pursuant to [the] Alabama Rules of Civil Procedure.”

Gaddy appealed.

On May 6, 2018, this Court entered the following show-cause order concerning Gaddy’s appeal:

“The record on appeal in the above-referenced cause reflects the following exchange in open court on June 18, 2012:
“ ‘THE COURT: Based on the fact that I have now granted [Brascho’s] motion in limine, does the plaintiff wish to go forward?
“ ‘[Gaddy’s trial counsel]: Your Honor, I do not believe so.
“ ‘THE COURT: All right. There being no objection by [Brascho], we will show that this case is dismissed, and if you want to appeal, you certainly may do so.’
“The record on appeal also reflects that the trial court entered a written order on June 19, 2012, which states, in part:
“ ‘On June 18, 2012, this court held oral argument on the motions in li-mine. After consideration of the arguments of counsel, during the hearing, this court in open court granted [Brascho’s] motion in limine on issues which [Gaddy] acknowledged prevented her from meeting her burden of proof.
“ ‘Therefore, it is ordered, adjudged, and decreed that the case is dismissed with prejudice, with each party to bear its own costs. Since this order dismisses all parties and claims, this is a final order pursuant to [the] Alabama Rules of Civil Procedure.’
“It is, therefore, ordered that the appellant, Jamie Gaddy, shall show cause to this Court, in writing and within 14 days from the date of this notice, why the above-referenced appeal should not be dismissed as from a non-appealable order.”

On May 17, 2013, Gaddy filed a brief in response to this Court’s show-cause order arguing that she did not consent to the trial court’s grant of Brascho’s motion in limine and that she did not request dismissal of her case. Gaddy argued that she

“was ‘aggrieved’ by the ‘adverse’ pretrial order that precluded her expert’s opinion testimony. The final judgment order of dismissal that immediately followed was simply a logically-necessary result of [Gaddy] not having an expert with which to proceed. The dismissal is certainly ‘adverse’ to Gaddy because she did not ‘consent.’ The pretrial, in limine order effectively dismissed the plaintiffs case, and the immediately-following order of dismissal was just a procedural formality to formally create a final judgment for closing the civil action.”

On May 29, 2013, this Court, by an order issued by the clerk’s office, dismissed Gaddy’s appeal, as follows:

“On May 6, 2013, this Court ordered the appellant, Jamie Gaddy, to show cause to this Court why the above-referenced appeal should not be dismissed as from a non-appealable voluntary dismissal. Gaddy filed a response to this Court’s show-cause order on May 17, 2013.
“After considering Gaddy’s response, this Court has determined that Gaddy has failed to demonstrate that the above-referenced appeal should not be dismissed as from a nonappealable voluntary dismissal, which the trial court granted instead of entering a judgment as a matter of law.
“It is, therefore, ordered that the above-referenced appeal is dismissed as from a non-appealable voluntary dismissal.”

On June 11, 2013, this Court, by an order issued by the clerk’s office, reinstated Gaddy’s appeal, as follows:

“This appeal having been dismissed as from a nonappealable voluntary dismissal,
“It is ordered, ex mero motu, that the order of dismissal issued on May 29, 2013, is withdrawn, and that this cause is returned to the active docket of this Court.”

Discussion

We must first determine whether this Court has jurisdiction over Gaddy’s appeal. Brascho argues in her appellate brief that Gaddy has no right to appeal the trial court’s order dismissing Gaddy’s action because Brascho never requested that the trial court dismiss the case and “the dismissal was at the request of or at the very least, was consented to by [Gaddy].” In her reply brief and in her brief in response to this Court’s show-cause order, Gaddy baldly alleges that she did not consent to the dismissal of her case; the record, however, clearly indicates that she did. Gaddy also argues, as set forth above, that the trial court’s grant of Brascho’s motion in limine “effectively dismissed [Gaddy’s] case, and the immediately-following order of dismissal was just a procedural formality to formally create a final judgment for closing the civil action.”

Gaddy’s appeal is undisputedly from the trial court’s June 19, 2012, judgment dismissing Gaddy’s case against Brascho, which Gaddy undisputedly requested, or at the very least consented to. Before this Court, Gaddy does not challenge the trial court’s dismissal of Gaddy’s case against Brascho, nor would this Court expect her to do so, because she requested the dismissal. According to Gaddy, the reason she requested the dismissal of her case against Brascho was to seek appellate review of the trial court’s decision granting Brascho’s motion in limine. However, this Court has stated that “where the plaintiff knowingly and willingly agrees to a stipulation of dismissal, he has no standing to appeal.” Copeland v. Williamson, 402 So.2d 932, 934 (Ala.1981) (citing Moore’s Federal Practice ¶ 41.02(6), pp. 41-43). Gaddy has not cited any authority, and we can find none, indicating that a plaintiff may appeal from the requested dismissal of his or her case. Therefore, based on Gaddy’s failure to demonstrate to this Court that we have jurisdiction over Gad-dy’s appeal, we dismiss Gaddy’s appeal.

APPEAL DISMISSED.

STUART, MAIN, WISE, and BRYAN, JJ., concur.

BOLIN and SHAW, JJ., concur in the result.

MOORE, C.J., and MURDOCK, J„ dissent.

MURDOCK, Justice

(dissenting).

As the main opinion explains, the following exchange occurred between the trial court and Jamie Gaddy’s counsel following the trial court’s ruling, over Gaddy’s strenuous objection, granting the motion in li-mine filed by the defendant, Lisa Arleen Brascho:

“THE COURT: Well, all right. Based on the fact that I have now granted that motion in limine, does the plaintiff wish to go forward?
“[Gaddy’s trial counsel]: Your Honor, I do not believe so.
“THE COURT: All right. There being no objection by the defendant, we will show that this case is dismissed, and if you want to appeal, you certainly may do so.
“[Gaddy’s trial counsel]: Okay.”

I read the comments of the trial court and Gaddy’s counsel as simply an admirably candid admission that, without the involuntarily excluded evidence, the plaintiff would not be able to present substantial evidence in support of her claims if the trial court were to allow the case to go forward. It is the type of admission that, in the interest of judicial economy and honesty to the court, this Court should encourage. Given that the dismissal of Gaddy’s claim was the logically and legally required consequence of this admission, which itself was merely an honest response to a involuntary and vigorously contested order in limine, the dismissal in this case cannot in any practical sense be construed as voluntary on the part of Gaddy.

I do not believe this Court is accurately reading from the transcript the practical sense intended by the informal exchange of both the trial court and Gaddy’s counsel. Indeed, the above-quoted colloquy concludes with the trial court’s own observation that, if Gaddy’s counsel wished to do so, he certainly could appeal from the trial court’s judgment. With this statement, the trial court itself evinced its own understanding that the dismissal it was ordering was by no means intended as a voluntary one by Gaddy and that it did not take its previous question or counsel’s answer to it as suggesting otherwise.

I believe Gaddy hereby is deprived of appellate review of the trial court’s decision regarding the exclusion of certain evidence, a review to which she is entitled. I therefore respectfully must dissent. In so doing, I express no view as to the merits of Gaddy’s position on the substantive issue of the admissibility of the excluded evidence.

      . Stedman's Medical Dictionary (27th ed.2000) defines “acromion," which is synonymous with “acromion process,” as "[t]he lateral end of the spine of the scapula which projects as a broad flattened process overhanging the glenoid fossa; it articulates with the clavicle and gives attachment to part of the deltoid and trapezius muscles. It’s lateral border is a palpable landmark (‘the point of the shoulder’).”

      . Merriam-Webster's Collegiate Dictionary 148 (11th ed.2009) defines "brachial plexus” as “a network of nerves lying mostly in the armpit and supplying nerves to the chest, shoulder, and arm.”

      . In her reply brief, the only Alabama case Gaddy relies upon in support of her argument that this Court should not dismiss her appeal is Martin v. Dyas, 896 So.2d 436 (Ala.2004). Martin has no applicability to the present case.
      In Martin, also a medical-malpractice case, the trial court granted a motion in limine filed by the defendant after trial began, thereby prohibiting the plaintiff’s expert witness from testifying. At the close of the plaintiff's case, the defendant filed a motion for a judgment as a matter of law ("JML”), which the trial court granted; nothing in Martin indicates that the plaintiff stipulated to the trial court's entry of the JML. The plaintiff appealed, and this Court considered the merits of the plaintiff's appeal. Martin is distinguishable from this case because there is no indication that the plaintiff in Martin asked for a JML to be entered against her and because Gaddy has appealed not a JML, but the requested dismissal of her case.
      Gaddy also relies upon Kysar v. BP America Production Co., 273 P.3d 867 (N.M.Ct.App.2012). We need not consider this authority because it is from a foreign jurisdiction. However, even if we did consider Kysar, it is distinguishable from this case. In Kysar, the Court of Appeals of New Mexico did not dismiss an appeal from a "stipulated conditional directed verdict.” 273 P.3d at 871. As stated above, Gaddy’s appeal is not from a “stipulated conditional directed verdict,” but from a requested dismissal.


author: MOORE, Chief Justice. PARKER, Justice MURDOCK, Justice BOLIN, Justice SHAW, Justice

text:
    ALTAPOINTE HEALTH SYSTEMS, INC. v. MOBILE COUNTY PROBATE COURT.
    1111199.
    Supreme Court of Alabama.
    Sept. 20, 2013.

      Wade B. Perry, Jr., and J. Ben Segarra of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile; and G.R. “Rick” Trawick of Slaten Law, P.C., Montgomery, for appellant.
    J. Michael Druhan, Jr., James C. Johnston, and Jason K. Hagmaier of Johnston Druhan LLP, Mobile, for appellee.
    Algert S. Agrícola, Jr., of Ryals, Plum-mer, Donaldson, Agricola & Smith, P.C., Montgomery, for amicus curiae Aabama Probate Judges Association, in support of the appellee.
   MOORE, Chief Justice.

AltaPointe Health Systems, Inc. (“AHS”), appeals from an order entered by Judge Don Davis of the Mobile County Probate Court denying its petition for an award of expert-witness fees in civil-commitment proceedings. This case presents a matter of first impression: Whether a publicly funded organization is entitled to expert-witness fees for an employee who gives expert testimony at involuntary civil-commitment hearings.

I. Facts and Procedural History

The board of directors of AHS, the community mental-health agency for Mobile County and Washington County, is appointed by the governing bodies that authorize and fund it. See § 22-51-1 et seq., Ala.Code 1975; Ex parte Greater Mobile-Washington Cnty. Mental Health-Mental Retardation Bd., Inc., 940 So.2d 990, 1005 (Ala.2006) (holding that AHS, although a public corporation, § 21-51-2, Ala.Code 1975, “is an independent entity rather than a State agency”). An AHS employee provides expert-witness testimony at civil-commitment hearings based on AHS’s court-ordered evaluation of respondents to involuntary-commitment petitions, known as “consumers.” Until April 2007, the Mobile County Probate Court had routinely paid AHS $160 to provide expert testimony at a commitment hearing. At that time, however, the probate court decided to terminate the payment of that fee because AHS was already being compensated independently for conducting mental-health evaluations of consumers. As the probate court explained:

“This action was taken when the Court learned that some of the other probate courts around the State of Alabama did not tax such fee requests as court costs in instances where the entity providing the evaluations received compensation from other sources, as the Court understood that AHS received funding from other sources with regard to the evaluations AHS was performing.”

Despite the probate court’s change in policy, AHS continued to submit monthly bills for providing testimony at commitment hearings. On October 27, 2009, the probate court held a hearing on these accumulated requests for payment. On January 14, 2010, the probate court denied payment, holding that the testimony of a salaried AHS employee did not require reimbursement by the court. “AHS is not actually incurring the fees for which it is seeking payment from the Alabama State General Fund and it appears that AHS is seeking double payment for a service it has provided.” The probate court viewed the testimony as “a vital and integral part of the evaluation process,” for which AHS was already compensated through general public funding. The court also noted that the AHS employees testifying “do not individually bill either AHS or the Court for their time spent” and that any payment would go to AHS, not the employee/witness. AHS did not appeal the denial of its request.

On August 17, 2011, AHS filed a new fee petition, seeking payment for testimony at commitment hearings from July 2008 through August 2011. An exhibit to the petition listed all the days AHS employees had provided testimony and the number of hearings on each day. In total, AHS requested $188,800, representing testimony at 1,180 hearings at a rate of $160 per hearing. On average, AHS provided testimony on the advisability of involuntary commitment at 400 hearings per year, or about 8 per week. The probate court typically held all the hearings for the week on the same day of the week. AHS supported its petition with affidavits from Kevin Markham, AHS’s chief financial officer, and Joyce Barber, its coordinator of social services. Markham and Barber also testified at the hearing on AHS’s petition held on October 5, 2011.

Markham testified that AHS received funding from the City of Mobile, Mobile County, Medicare, Medicaid, from private insurance companies, and from federal grants. None of these funds, however, he said, could be used for payment of expert-witness fees at commitment hearings. Markham provided documentation that neighboring Washington County authorized payment at a flat rate of $180 for AHS’s expert testimony at commitment hearings; that Chilton County paid $100 per hour to a local mental-health center for court screening, evaluation, and testimony; and that the Montgomery County Probate Court allowed payment of expert-witness fees at a rate of $70 per hour to the Montgomery Area Mental Health Authority for testimony at commitment hearings by qualified employees.

Barber is “the designated employee of [AHS] who ... testifies during civil commitment proceedings in the Probate Court.” Markham Affidavit. Her full-time job (except for Tuesday afternoons) is “preparing to testify and testifying in Probate Court.” The expert-witness services that AHS provides to the probate court consist solely of Barber’s work. “In defining expert witness services in this manner,” Barber stated, “I have excluded the services provided by the clinical staff persons who perform the evaluations and the services of the clinical staff persons who provide mental health treatment to the consumers.”

Barber provides specialized knowledge that not only assists the trier of fact, but also is indispensable to its decision-making. In the week before each commitment hearing, Barber reviews records, interviews patients and relevant personnel, and consults with the treating physicians. Coupled with her formal training and experience as a professional counselor, she is qualified by knowledge, skill, experience, training, and education as an expert on civil-commitment evaluations. She does not merely report the professional opinion of the treating psychiatrist. Instead, she is intimately involved in the evaluation process from beginning to end. Barber carefully develops her understanding of each case for the purpose of accurately informing the probate court of the status and prospects of each consumer.

The probate judge acknowledged that Barber provided “an expert opinion” and complimented her on the quality of her testimony. “[S]he is very prepared. She is able to — to answer most questions that lawyers and I have.... So I want to compliment Ms. Barber for the manner in which she discharges her duties at the court hearings. And thank you for what you do in that regard.” See Charles Gamble, McElroy’s Alabama Evidence § 127.02(2) (5th ed. 1996) (“The quantum of necessary expertise is determined by whether it is sufficient to justify an opinion that will be of aid to or assist the trier of fact.”).

In its order of April 19, 2012, denying payment of expert-witness fees to AHS, the probate court did not dispute that Barber qualified as an expert witness but instead claimed that “[t]he statute is not intended to reimburse an employer for time spent by an employee testifying, even if such employee may qualify as an expert witness.” Thus, the probate court held, if AHS retained an outside consultant to testify at commitment hearings and then proffered the bills to the court for payment, “such expert fees may be awarded if reasonable.” The court also found that AHS’s in-court testimony was an integral part of the evaluation process and thus not separately reimbursable as expert testimony.

The probate court denied the fee petition in its entirety. AHS filed a notice of appeal on May 31, 2012.

II. Standard of Review

Because the issue before this Court is the proper interpretation of § 22-52-14, Ala.Code 1975, our review is de novo. “A ruling on a question of law carries no presumption of correctness, and appellate review is de novo.” Ex parte City of Brundidge, 897 So.2d 1129, 1131 (Ala.2004).

III. Analysis

“The jurisdiction of the probate court is limited to the matters submitted to it by statute.” Wallace v. State, 507 So.2d 466, 468 (Ala.1987). See § 12-13-1, Ala.Code 1975. Probate courts have jurisdiction over petitions seeking the involuntary commitment of persons believed to be mentally ill. Section 22-52-1.2, Ala.Code 1975. The Code also provides for payment of the costs of the commitment proceeding, including expert-witness fees.

“In any commitment proceeding, the fees of any attorney appointed by the probate judge to act as advocate for the petition and any attorney or guardian ad litem appointed by the probate judge for the person sought to be committed shall be set at the rates established by Section 15-12-21; and any expert employed to offer expert testimony, in such amounts as found to be reasonable by the probate judge; and all other costs allowable by law shall be paid by the state general fund upon order of the probate judge....”

§ 22-52-14, Ala.Code 1975 (emphasis added).

The issue for resolution in this appeal is whether AHS is eligible for expert-witness fees under § 22-52-14 when Barber or another qualified employee of AHS testifies as an expert witness in a civil-commitment hearing.

In interpreting a law, we first look to the plain language of the statute. “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used, a court is bound to interpret that language to mean exactly what it says.” Tuscaloosa Cnty. Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa Cnty., 589 So.2d 687, 689 (Ala.1991). Section 22-52-14, Ala.Code 1975, states: “In any commitment proceeding, the fees of ... any expert employed to offer expert testimony, in such amounts as found to be reasonable by the probate judge ... shall be paid by the state general fund upon order of the probate judge.... ” (Emphasis added.)

The probate court contends that AHS, as a recipient of public funding, is entitled to no separate compensation for providing expert testimony to the court. However persuasive such an argument might be as a matter of public policy, the statute itself makes no such distinction, but instead applies to “any expert employed to offer expert testimony.” Whether publicly funded regional mental-health agencies should be denied expert-witness fees for presenting expert testimony regarding court-ordered evaluations is an issue for the legislature to decide, not the courts. Once the AHS employee qualifies as an expert witness, reasonable fees “shall be paid.” Further, “all questions of propriety, wisdom, necessity, utility and expediency in the enactment of laws are exclusively for the legislature, and are matters with which courts have no concern.” Jansen v. State, 273 Ala. 166, 168, 137 So.2d 47, 48 (1962). Because the amendment of statutes is a task for the legislature, not the courts, we are not at liberty to add exceptions to a statute that the legislature has not seen fit to supply. See Personnel Bd. of Mobile Cnty. v. City of Mobile, 264 Ala. 56, 60-61, 84 So.2d 365, 369 (1955) (“[T]he only authority which has the power to make State laws is the legislature.”).

The probate court complained that it had “not been provided any authority which would allow for fees ... for services rendered by salaried employees of the party making the request.” But no such additional authority is necessary when the statute in question makes no exception to its general requirement for payment of reasonable fees for expert testimony. The probate court’s order states: “AHS is not employing outside experts and thus is not incurring any expert fees or expenses.” Section 22-52-14, however, does not require that AHS hire an outside expert and incur specifically billed fees before AHS may qualify for expert-witness fees. Should the legislature desire to change the statute to disallow experts such as those employed by AHS from receiving expert-witness fees from the State’s general fund, it is free to do so. Neither the probate court nor this Court, however, is free to limit the scope of the statute through an exclusionary judicial construction not stated in its text. See Dennis v. Chang, 611 F.2d 1302, 1307 (9th Cir.1980) (rejecting argument that award of attorney fees to state-funded legal-services organization was unfair “double payment” and finding that by not including such an exception in the Fee Awards Act, the “question of fairness has been resolved by Congress”); Del. Op. Att’y Gen. No. 78-003 (Feb. 13, 1978) (noting that state statute “governing the payment of expert witness fees, draws no distinction between expert witnesses who are public employees and other expert witnesses”). Just as “the trial court does not have the discretion to award fees for expert witnesses unless a statute authorizes the recovery of such fees,” Southeast Envtl. Infrastructures, L.L.C. v. Rivers, 12 So.3d 32, 52 (Ala.2008), it also does not have discretion to refuse reasonable fees where the legislature has authorized their payment.

IV. Conclusion

By disqualifying AHS from receiving expert-witness fees for the testimony of its employees, the Mobile County Probate Court erred as a matter of law. If the probate court desires fact testimony regarding the services rendered by AHS to those committed to its care and the response of such persons to that care, the court may order the appearance of “non-expert” employees who do not provide an opinion and for whom no fee is required. However, when the probate court elicits testimony from an expert witness provided by AHS on the issue of civil commitment and the witness is an employee of AHS, a plain reading of § 22-52-14 entitles AHS to such fees as the probate court in its discretion determines are reasonable.

We therefore reverse the Mobile County Probate Court’s order of April 19, 2012, and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

STUART, J., concurs.

PARKER, J., concurs specially.

MURDOCK, J., concurs in part as to the rationale and concurs in the result.

BOLIN, MAIN, WISE, and BRYAN, JJ., concur in part and dissent in part as to the rationale and concur in the result.

SHAW, J., dissents.

PARKER, Justice

(concurring specially).

I join in the main opinion, and I concur specially for the following reasons.

First, § 22-52-14, Ala.Code 1975, has been amended by the legislature so as to authorize payment to any expert providing expert testimony to a probate court in commitment proceedings. As initially enacted, the statute limited payment to expert witnesses who were employed by the attorney appointed to represent the subject of the proceeding:

“In any commitment proceeding, the fees of any attorney appointed by the probate judge to act as advocate for the petition any attorney appointed by the probate judge for the person sought to be committed and any expert employed by the attorney appointed to represent the person sought to be committed to offer expert testimony in such amounts as found to be reasonable by the probate judge, and all other costs allowable by law shall be paid by the State General Fund upon the order of the probate judge.... ”

Act No. 1226, § 11, Ala. Acts 1975 (emphasis added).

Two years later, the statute was amended to read:

“In any commitment proceeding, the fees of any attorney appointed by the probate judge to act as advocate for the petition, any attorney or guardian ad litem appointed by the probate judge for the person sought to be committed and any expert employed to offer expert testimony, in such amounts as found to be reasonable by the probate judge, and all other costs allowable by law shall be paid by the State General Fund upon order of the probate judge.... ”

Act No. 670, § 1, Ala. Acts 1977 (emphasis added). Among other changes, the legislature deleted the phrase “by the attorney appointed to represent the person sought to be committed” that originally followed “any expert employed.” This amendment removed the restriction that limited the payment of expert witnesses to those experts employed by the appointed attorney. The statute was amended again in 1984, but the phrase “any expert employed to offer expert testimony” remained undisturbed. Act No. 84-833, § 2, Ala. Acts 1984.

The legislative history of this statute reveals the legislature’s intent to remove the original restriction that limited the payment of fees to experts hired by the appointed attorney and to authorize the payment of fees to any expert employed to offer expert testimony in commitment proceedings. In light of this legislative intent, AltaPointe Health Systems, Inc. (“AHS”), is entitled, under § 22-52-14, to reasonable fees for the services it provided the probate court.

Second, the conclusion in the main opinion that AHS is entitled to expert-witness fees is buttressed by the Alabama Rules of Evidence, which clearly provide for the compensation of expert witnesses appointed by the court. Rule 706, Ala. R. Evid., provides, in relevant part:

“(a) Appointment. The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection....
“(b) Compensation. Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. Except as otherwise provided by law, the court shall order that the compensation be paid by the parties in such a proportion as the court may direct, to be paid by the parties as the court may direct....”

(Emphasis added.) The Advisory Committee’s Notes to Rule 706(a) provide that the power of the trial court “to appoint its own expert witnesses” is an “historic power.” (Citing Alabama Great S. R.R. v. Hill, 90 Ala. 71, 8 So. 90 (1890).)

The plain and clear language of Rule 706, providing that expert witnesses appointed by the court are entitled to compensation, applies to all court proceedings in our state, including those in the probate courts. Rule 101, Ala. R. Evid., provides that “[the rules of evidence] govern proceedings in the courts of the State of Alabama to the extent and with the exceptions stated in Rule 1101.” Rule 1101(a), Ala. R. Evid., provides: “Except as otherwise provided by constitutional provision, statute, this rule, or other rules of the Supreme Court of Alabama, these rules of evidence apply in all proceedings in the courts of Alabama, including proceedings before referees and masters.” (Emphasis added.) The Advisory Committee’s Notes to Rule 1101(a) clarify that the legislative intent of that rule “is to make the Alabama Rules of Evidence applicable to the same proceedings that were governed by the general law of evidence at the time of their adoption,” including proceedings in the probate courts. (Citing § 12-13-12, Ala.Code 1975 (statutory rules of evidence, “so far as the same are appropriate,” are applicable in probate courts).) The Advisory Committee also noted that “[t]hese rules in no way change preexisting law regarding the applicability of evidence rules in the probate court.” Id. This makes it clear that the intent is that the Alabama Rules of Evidence apply in the probate courts.

The language of the Alabama Rules of Evidence unambiguously establishes not only the power of the courts to appoint expert witnesses, but also the entitlement of court-appointed expert witnesses to compensation. Because such provisions apply to probate courts, it is clear that AHS is entitled to reasonable fees for expert-witness services provided to the probate court.

MURDOCK, Justice

(concurring in part as to the rationale and concurring in the result).

I concur in the result achieved by the main opinion and, save for two aspects, agree with the analysis by which it reasons to that result. The primary holding of the main opinion, as I read it, is that the fact that the expert in this case is employed by an entity that receives public funds does not remove that expert from the ambit of the directive regarding payment of expert-witness fees in § 22-52-14, Ala.Code 1975. On this issue, the main opinion and the special writing of Justice Bolin appear to be in accord. Before explaining the two aspects in which I decline to join the main opinion, I first offer two preliminary observations.

First, I believe the primary conclusion reached in both the main opinion and in Justice Bolin’s special writing is supported by the Act of the Alabama Legislature by which the statute in question, § 22-52-14, was most recently amended, Act No. 84-833, Ala. Acts 1984. The title of that Act makes clear the intent of the legislature that experts employed to provide expert testimony in commitment hearings are to be paid a reasonable fee, notwithstanding the fact that they are supplied and employed by a facility that receives State funds. That title states that the Act has as its purpose “[t]o amend 1975 Code of Alabama, Sections 22-52-14 and 22-52-17, which relate to mental health evaluations and commitments, so as to require all probate judges to utilize mental health facilities of the State of Alabama when available.” Section 1 of the same Act that in Section 2 adopts the current language of § 22-52-14 at issue in this case clearly contemplates that mental-health facilities supported by public funds will be used “to perform mental evaluations of persons sought to be committed for use in final commitment hearings.” Act No. 84-833, § 1, amending Ala.Code 1975, § 22-51-17.

Second, I read the main opinion as interpreting — and correctly so in my opinion— § 22-52-14 to require the payment of expert witnesses employed in a commitment hearing but, in accordance with the language of the statute, only to the extent such fees are “reasonable.” Accordingly, I am not sure how much, if any, space actually exists between the position expressed in the main opinion and that expressed in Justice Bolin’s special writing (with much of which I also agree).

Insofar as the foregoing bears on the issue of the standard of review, however, I do agree with the axiomatic position taken by the main opinion that the question of the meaning of the statute (as either requiring a reasonable fee or not) is a question of law to be decided by this Court de novo. I also agree with Justice Bolin, however, and I do not read the main opinion as saying otherwise, that our review of the amount of fee to be awarded an expert is not de novo, but instead is based on an excess-of-discretion standard.

Having expressed these preliminary concerns, I turn now to the two aspects of the main opinion that I decline to join. First, I decline to join in the following statement in the Conclusion section of the opinion and the footnote (footnote 5) that accompanies it: “If the probate court desires fact testimony regarding the services rendered by [AltaPointe Health Systems, Inc. (‘AHS’),] to those committed to its care and the response of such persons to that care, the court may order the appearance of ‘non-expert’ employees who do not provide an opinion and for whom no fee is required.” 141 So.3d at 1003-04. I find this sentence and the footnote that accompanies it unnecessary to the result achieved. More than that, I am uncertain and concerned as to their import on a practical level.

The quoted sentence from the text speaks of the ability of the court to order, without payment, the appearance and testimony of what it labels “ ‘non-expert’ employees.” It speaks of these “non-experts” as giving “fact testimony.” It contemplates that these “fact” witnesses will provide their testimony in a commitment hearing conducted by a judge, without formal medical training, for the purpose of receiving medical evidence and formulating an opinion on a patient’s condition, the patient’s ability to function safely with or without certain treatments, and, ultimately, the need for institutionalization. The sentence contemplates that the value of ordering testimony from such a witness will derive from the fact that the patient is “committed to its care” and that the witness will be able to testify competently as to that care and “the response of such [patient] to that care.” As a general rule, the only person qualified or competent to testify as to the “facts” of a patient’s condition and the patient’s clinical response to treatments that have been provided will, in fact, be a medical expert. Moreover, it almost invariably will be the case that expert opinion testimony, not just the “facts” of raw clinical data or observations, is necessary to assist a court in making the necessary judgments as to these matters. Accordingly, I question whether this extra step taken by the main opinion of implicitly sanctioning the calling of such experts as “fact -witnesses” to share the “facts” pertaining to their clinical assessments and conclusions (conclusions that would never have been formed had the patient not been sent by the probate court to the witness or his or her employer for assessment in the first place) in effect just undermines the general rule requiring the compensation of such witnesses that we otherwise uphold today.

Furthermore, and independent of the foregoing concerns, I am concerned by footnote 5 in its own right. I fail to see how the encouraged “separation of the treatment and testimony functions” addresses the stated concern for the impairment of the doctor-patient relationship when the “separate” witness’s testimony simply relays information the witness has received from the doctor.

Secondly, in terms of the main opinion, I decline to join footnote 4. The first sentence of this footnote states, in part, that “we do not wish to imply that the probate court must in all instances pay the fee of any expert ... who testifies in a civil-commitment hearing.” 141 So.3d at 1003. Again, subject to the reasonableness restriction, that is exactly what I read the main opinion as not only implying, but expressly holding. If an expert has in fact testified as an expert, it will be because the “preliminary questions” regarding his or her qualifications to do so have already been resolved by the court in the witness’s favor.

Because of these concerns and because I believe the preceding aspects of the main opinion go beyond the question before us today, I respectfully decline to join them.

BOLIN, Justice

(concurring in part and dissenting in part as to the rationale and concurring in the result).

The probate judge in this case entered an order denying the petition for expert-witness fees filed by AltaPointe Health Systems, Inc. (“AHS”), under § 22-52-14, Ala.Code 1975, based on his findings that the fees were “improper” and not “allowable” under the statute. Specifically, the probate court determined that “AHS is not actually incurring the fees for which it is seeking payment,” because “AHS is not employing outside experts and thus is not incurring any expert fees or expenses.” The probate court further stated that “the time spent by a medical expert witness, both preparing to testify and actually testifying in court, must be considered a part of the overall evaluation services provided by AHS in involuntary mental commitment cases.” The main opinion reverses the probate court’s order, based on its interpretation of § 22-52-14, Ala.Code 1975, applying a de novo standard of review. Specifically, the main opinion interprets § 22-52-14 as mandating the payment of a reasonable fee for any expert qualified to testify in a commitment proceeding.

Section 22-52-14 provides:

“In any commitment proceeding, the fees of any attorney appointed by the probate judge to act as advocate for the petition and any attorney or guardian ad litem appointed by the probate judge for the person sought to be committed shall be set at the rates established by Section 15-12-21; and any expert employed to offer expert testimony, in such amounts as found to be reasonable by the probate judge.... ”

(Emphasis added.)

Section § 22-52-14, regarding payment of fees to be taxed as costs in involuntary-commitment proceedings, is unambiguous in establishing that the probate judge appoints attorneys to act as advocates and attorneys or guardians ad litem for the respondent and that their fees are set by statute, while the fees awarded to unappointed expert witnesses “employed,” or, put another way, “used,” to offer expert testimony are determined by the probate court, not by statute, in such amounts as found to be reasonable by the court. Hence, I submit that the proper standard of appellate review of the probate court’s order in this proceeding should be guided by whether the probate judge exceeded his or her discretion, and therefore not subject to the interpretation and analysis of the statute embodied in the main opinion.

The key phrase of the statute, i.e., “found to be reasonable,” clearly vests the probate court with the discretion to fix and determine the appropriate expert-witness fee under the statute, subject only to correction if the probate court exceeds its discretion. The reasonableness of an expert-witness fee to be paid is a matter within the discretion of the probate court and its decision on such matter will not be reversed on appeal unless the court exceeds that discretion. Cf., by analogy to counsel fees, Lanier v. Moore-Handley, Inc., 575 So.2d 83, 85 (Ala.1991) (“The reasonableness of an attorney fee under a contract providing for the recovery of reasonable attorney fees is largely within the discretion of the trial court.”); see also Commercial Standard Ins. Co. v. New Amsterdam Cas. Co., 272 Ala. 357, 362, 131 So.2d 182, 186 (1961) (“The matter of fixing the fee rests largely within the discretion of the trial court, subject only to correction for abuse of discretion.”). The probate court in this case was not interpreting the statute, and neither is it necessary for this Court to do so to properly review the probate court’s decision. Rather, this Court should be reviewing whether the probate court exceeded its discretion in declining to award any fee because the expert qualified to testify in this case was an employee of AHS, a publicly funded mental-health agency.

As stated, the first part of § 22-52-14 applies to the payment of court-appointed attorney/advocates and court-appointed attorneys or guardians ad litem for the respondent. These attorneys, pursuant to the statute, are paid fees in amounts set by a fixed standard in § 15-12-21, Ala.Code 1975. The second part of § 22-52-14 specifically provides for the payment of expert-witness fees and provides that such fees are to be set “in such amounts as found to be reasonable.” Although the first part of § 22-52-14 empowers the probate court to “appoint” the necessary attorneys or guardians for the proceedings, the second part of the statute simply refers to any expert “employed” to offer expert testimony. In this case, AHS “designate[d]” or provided the expert-witness testimony to be given to the probate court during the “merits” hearing. Because the expert witness in this case was not appointed by the court, the use of the term “employed” in the statute must be given its plain meaning. Words in a statute must be given their natural, ordinary, commonly understood meaning. Ex parte Weaver, 871 So.2d 820 (Ala.2003). In the context of this statute, the word “employ[ed]” is defined by Black’s Law Dictionary 586 (8th ed. 2006) as “[t]o make use of’ or “to hire.” See also American Heritage Dictionary of the English Language 428 (New College ed. 1976) defining “employ[ed]” as “[t]o engage the services of.”

The probate court declined to award any fee whatsoever to AHS based on the court’s findings (1) that AHS was not employing a non-employee outside expert witness to testify and was, therefore, not incurring any fees for which it was seeking payment; (2) that the expert witness designated by AHS to testify was a salaried AHS employee, who does not individually bill either AHS or the court for her time spent testifying; and (3) that the time spent by the expert witness, both preparing to testify and actually testifying in court, must be considered a part of the overall evaluation services provided by AHS. Applying the exceeding-its-diseretion standard as I submit that we should, I conclude that the probate court exceeded its discretion in denying AHS’s requested fees under the facts in this case. First, the fact that the expert witness in this case was employed by AHS is no different than a private psychiatrist who testifies as an expert witness being employed by a professional practice group, whereby the entity requesting an expert fee might well be the psychiatrist’s employer. Indeed, AHS pays the salary of its designated expert witness from its own budget, and the record reflects that it is not reimbursed for that expenditure by any outside funding source. Second, I do not agree that the expert testimony in this case must be considered as part of the overall evaluation services provided by AHS. A respondent in an involuntary-commitment proceeding is “evaluated” to determine whether a mental illness exists and, if so, the respondent’s diagnosis. A respondent then receives “treatment” for the particular diagnosis. These functions are obviously carried out by a hospital or mental-health facility outside the court’s presence. At the hearing before the court, however, there must be “expert testimony” to convince the probate court as to whether a serious mental illness is present, and whether the respondent should be ordered committed on either an inpatient or outpatient basis. According to AHS, “expert witness services” refer to “the activities of planning and preparing to testify, and actually testifying during civil commitment hearings.” In this case, AHS’s designated expert sometimes spends “forty (40) hours per week preparing to, and actually testifying in, the hearings before the Probate Court.” AHS is not seeking reimbursement by way of costs from the State General Fund for the “evaluation and treatment” of consumers in involuntary-commitment proceedings. Rather, it is seeking reimbursement solely for the expert testimony of its employees that it provides to the probate court in those proceedings. Regardless of whether AHS employs a paid outside expert to provide such testimony or whether it makes use of, or engages the services of, its own in-house expert to provide the testimony, AHS is still providing an invaluable service by way of expert testimony to the probate court, for which it should be entitled to reasonable compensation. Arguably, AHS might not have need for this particular employee in its employ if not for her role in providing expert testimony and would therefore not have an expenditure for her salary. But, as here, where AHS does pay an employee to provide this service, and the service is received by the probate court, AHS should be entitled to an award of a reimbursed expert-witness fee in a reasonable amount set by the probate court. Because I conclude that the probate court exceeded its discretion in denying AHS’s requested expert-witness fees, I concur with the main opinion that AHS is entitled to reasonable compensation under the statute for those fees.

However, I respectfully disagree with any implication in the main opinion that an expert-witness fee must be paid to any qualified expert giving testimony in all possible circumstances. In the event a probate judge deems a witness qualified to testify, there still may be circumstances in which the judge declines to award a fee for that testimony. The probate court in this case acknowledged that AHS’s designated witness was qualified to testify and that she provided valuable testimony; however, that may not always be the case. For instance, what would happen in the event multiple family members or friends of a respondent each provided a different expert to give testimony to the court; in such event, must the probate judge pay an expert fee to each expert qualified by the court, even if their testimony was cumulative? Further, should an occasion arise in which a witness qualified to testify as an expert, or that witnesses’s employer, was found to receive funding for giving expert testimony from an additional source, must that witness be paid again as part of the costs of court? The clear answer to each example is in the negative based on a probate court’s proper exercise of discretion as given to it in § 22-52-14, not as a matter of law as the main opinion concludes.

There are 67 probate courts and 68 probate judges in the State of Alabama presiding over involuntary-civil-commitment proceedings. The facilities and resources available to provide medical help and assistance to persons with a serious mental illness vary greatly from county to county. Some urban counties have multiple hospitals, psychiatrists, and resources to treat mental illness, while some rural counties must make do with little or limited resources. Still, the legislature was tasked with enacting a statute regarding the payment of expert-witness costs in those proceedings that would be workable and fair in all the probate courts in Alabama. The legislature answered this calling by vesting the probate courts with the discretion to fix and determine “reasonable” compensation in this area, and, accordingly, a valid exercise of that discretion under different facts than we have herein might well be that no fee is due to be awarded. For this reason probate judges have the latitude, or put another way — the discretion given to them under the statute — to determine, on a case-by-case and witness-by-witness basis, whether a fee should be awarded and taxed as costs to a qualified expert, or to an expert’s employer, and, if so, the reasonableness of that fee.

MAIN, WISE, and BRYAN, JJ„ concur.

SHAW, Justice

(dissenting).

I believe that under the plain language of Ala.Code 1975, § 22-52-14, the probate judge in this case had the discretion to deny the payment of expert-witness fees. The Code section states, in applicable part:

“In any commitment proceeding, the fees of any attorney appointed by the probate judge to act as advocate for the petition and any attorney or guardian ad litem appointed by the probate judge for the person sought to be committed shall be set at the rates established by Section 15-12-21; and any expert employed to offer expert testimony, in such amounts as found to be reasonable by the probate judge; and all other costs allowable by law shall be paid by the state general fund upon order of the probate judge.... ”

This Code section contains three clauses set apart by semicolons. The first clause provides that the fees to be paid to attorneys who act as advocates or guardians ad litem are set at the rates found in Ala. Code 1975, § 15-12-21. The second clause provides that the probate judge (as opposed to a Code section) sets the fees to be paid to experts based on what it finds reasonable. The third clause provides “all other costs” — i.e., not the fees of attorneys or expert witnesses — are to be paid if the probate judge so orders.

The issue in this case involves the fee for an expert witness under the second clause: the fee for an expert is set at such amount “found to be reasonable by the probate judge.” Here, the probate judge found that no fee was reasonable. I do not believe that he exceeded his discretion in so finding.

I do not read the language from the third clause, “shall be paid,” as commanding the probate judge to order the payment of fees to expert witnesses. Instead, it requires only that fees or costs be paid if so ordered by the probate judge. Specifically, the clause states that what “shall be paid” is only what the probate judge orders to be paid: “shall be paid ... upon order of the probate judge....” This language is not directing the probate judge to award fees to the expert, which is the issue involved in this case; it is instead directing that all fees and costs “shall be paid” pursuant to an “order [by] the probate judge.” If there is no “order of the probate judge,” then there is nothing that “shall be paid by the state general fund.” I agree that “any expert employed ... shall be paid” but that that expert will be paid only if the probate judge so orders.

      . In its opening brief, AHS requests this Court to render a reduced award of $114,400, representing expert-witness testimony at 715 hearings from January 2010 through August 2011, approximately half the period covered by its petition in the probate court.

      . "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Rule 702(a), Ala. R. Evid.

      . We understand "employed” to mean "to make use of” or "to use advantageously.” Meiriam-Webster’s Collegiate Dictionary 408 (11th ed. 2003).

      . Although the qualifications of AHS's designated representative to give expert testimony are not at issue in this case, we do not wish to imply that the probate court must in all instances pay the fees of any expert, or proposed expert, who testifies in a civil-commitment hearing. The probate court, as in all cases, has the responsibility to qualify witnesses to testify. “Preliminary questions concerning the qualifications of a person to be a witness ... shall be determined by the court....” Rule 104(a), Ala. R. Evid. See also Advisory Committee's Notes to Rule 104(a) (“This principle is also applied when a trial court determines whether a witness's qualifications authorize the witness to testify as an expert.”).

      . When the treating therapist also functions as a forensic witness, the doctor-patient relationship may be impaired. See Ralph Sloven-ko, On a Therapist Serving as a Witness, 30 J. Am. Acad. Psychiatry Law 10 (2002). AHS’s separation of the treatment and testimony functions may thus be beneficial to the consumers.

      . I also agree with the views expressed by Justice Parker in his special concurrence and would join that concurrence if not for the two concerns regarding the main opinion expressed herein.

      . The footnote that accompanies this sentence and appears to provide context for it reads as follows: "When the treating therapist also functions as a forensic witness, the doctor-patient relationship may be impaired.... AHS’s separation of the treatment and testimony functions may thus be beneficial to the consumer.” 141 So.3d at 1004 n. 5.

      . "This Court has for several years been using the phrase 'exceeded its discretion’ rather than the phrase 'abused its discretion.’ The word 'abused' has a negative connotation this Court does not believe is useful in describing file judicial acts of our trial court judges, thus prompting us to use the word 'exceeded.' The standard of review remains the same.” State v. Isbell, 985 So.2d 446, 453 n. 3 (Ala.2007).

      . By virtue of the nature of involuntary-commitment proceedings and the required statutory findings, should relief be granted, i.e., if the probate court orders outpatient or inpatient treatment pursuant to §§ 22-52-10.2 and 22-52-10.4, Ala.Code 1975, it is difficult to conceive of a factual basis sufficient for a probate court to order either such relief without the receipt of expert testimony.
      Section 22-52-10.2, Ala.Code 1975, provides:
      "A respondent may be committed to outpatient treatment if the probate court finds, based upon clear and convincing evidence that: (i) the respondent is mentally ill; (ii) as a result of the mental illness the respondent will, if not treated, continue to suffer mental distress and will continue to experience deterioration of the ability to function independently; and (iii) the respondent is unable to make a rational and informed decision as to whether or not treatment for mental illness would be desirable.”

      (Emphasis added.) Section 22-52-10.4(a), Ala.Code 1975, provides:
      "(a) A respondent may be committed to inpatient treatment if the probate court finds, based upon clear and convincing evidence that: (i) the respondent is mentally ill; (ii) as a result of the mental illness the respondent poses a real and present threat of substantial harm to self and/or others; (iii) the respondent will, if not treated, continue to suffer mental distress and will continue to experience deterioration of the ability to function independently; and (iv) the respondent is unable to make a rational and informed decision as to whether or not treatment for mental illness would be desirable."

      (Emphasis added.) It would difficult, and seemingly impossible, for a probate court to order any relief to a petitioner pursuant to the elements of the statutes above without expert testimony.


author: SHAW, Justice.

text:
    RAYMOND JAMES FINANCIAL SERVICES, INC., and Bernard Michaud v. Kathryn L. HONEA.
    1110424.
    Supreme Court of Alabama.
    Sept. 20, 2013.

      A. Inge Selden III, Andrea M. Greene, and Kathryn Dietrich Perreault of Maynard, Cooper & Gale, P.C., Birmingham, for appellants.
    James L. North and J. Timothy Francis of James L. North & Associates, Birmingham, for appellee.
   SHAW, Justice.

Raymond James Financial Services, Inc. (“Raymond James”), and its employee, Bernard Michaud, the defendants below (hereinafter collectively referred to as “RJFS”), appeal from an order of the trial court vacating an arbitration award in their favor and entering a judgment in favor of Kathryn L. Honea, the plaintiff below. We dismiss the appeal for lack of subject-matter jurisdiction.

Honea, who had multiple investment accounts with Raymond James, sued RJFS in the Jefferson Circuit Court alleging violations of the Alabama Securities Act and seeking damages for breach of contract, breach of fiduciary duty, negligence, wantonness, and fraud. RJFS moved to compel arbitration, and the trial court granted the motion.

An arbitration panel unanimously entered an award in favor of RJFS on Ho-nea’s claims. Honea filed a motion in the Jefferson Circuit Court seeking to vacate the arbitration award. The trial court ultimately vacated the award, and RJFS appealed. On appeal, this Court reversed the trial court’s judgment vacating the arbitration award, holding that a provision in the arbitration agreement Honea had signed when she opened the accounts required the trial court to conduct a de novo review of the arbitration award, and remanded the case for it to conduct such a review. Raymond James Fin. Servs., Inc. v. Honea, 55 So.3d 1161, 1162-64 (Ala.2010) (“Raymond James I ”).

On remand, the trial court conducted a de novo review of the arbitration award. Thereafter, it entered a lengthy and detailed order vacating the award and entering a judgment in favor of Honea in the amount of $1,169,113.35. RJFS appeals.

In their briefs to this Court, as in Raymond James I, neither side raised an argument concerning this Court’s jurisdiction to hear the present appeal. However, “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987).

“In Championcomm.net of Tuscaloosa, Inc. v. Morton, 12 So.3d 1197 (Ala.2009), this Court stated:
“With some exceptions not applicable here, this Court is without jurisdiction to hear an appeal in the absence of a final judgment. See Hamilton ex rel. Slate-Hamilton v. Connolly, 959 So.2d 640, 642 (Ala.2006) (quoting Cates v. Bush, 293 Ala. 535, 537, 307 So.2d 6, 8 (1975)). We therefore must consider whether a final judgment exists from which this appeal may lie.
“ ‘In Horton Homes, Inc. v. Shaner, 999 So.2d 462 (Ala.2008), this Court made clear that a judgment entered by the circuit clerk on an arbitration award pursuant to § 6-6-15, Ala.Code 1975, “does not become a final appeal-able judgment until the circuit court has had an opportunity to consider a motion to vacate filed by a party seeking review of the arbitration award.” 999 So.2d at 467. Furthermore, as this Court observed in Jenks v. Harris, 990 So.2d 878, 882 (Ala.2008), the trial court’s order on such a motion is void unless the circuit clerk has first entered the arbitration award as the judgment of the court.
“ ‘It follows from these cases, and, more importantly, from the plain language of § 6-6-15, Ala.Code 1975, which governs the procedure for effecting an appeal in this case, that an arbitration award does not constitute a final judgment subject to review in our appellate courts merely upon the filing of the award, along with a notice of appeal, in the appropriate circuit court. See § 6-6-15, Ala.Code 1975 (“[T]he clerk or register shall enter the [arbitration] award as the judgement of the court. Thereafter, unless within 10 days the court shall set aside the award ... the judgment shall become final and an appeal shall lie as in other cases. In the event the award shall be set aside, such action shall be a final judgement from which an appeal shall lie as in other cases.” (emphasis added)); cf. Birmingham News Co. v. Horn, 901 So.2d 27, 31 (Ala.2004) (“On January 13, 2003, the circuit clerk entered the arbitrators’ awards as the judgments of the court. The trial court did nothing further, so that on January 23, 2003, pursuant to Ala.Code 1975, § 6-6-15, the judgments became final.” (footnote omitted)), overruled on other grounds, Hereford v. D.R. Horton, Inc., 13 So.3d 375, 381 (Ala.2009), and Horton Homes, supra; Collins v. Louisville & Nashville R.R., 70 Ala. 533, 533-34 (1881) (“In the absence of a statute authorizing it, an appeal, writ of error, or other revisory remedy, will not lie to any court from the award of arbitrators .... The statute (Code of 1876, § 3547) authorizes the courts of primary jurisdiction to enter ... the award of arbitrators, as the judgment or decree of the court ...; and, employing the language of the statute, ‘from the judgment or decree so entered up, or from the judgment setting aside the award, an appeal shall lie, as in other cases.’ ... The statute gives an appeal from that judgment, and not from the award.”).’
12 So.3d at 1199-1200 (footnote omitted).
“We find no indication in the record that the clerk of the Shelby Circuit Court entered the arbitrator’s order as the judgment of that court as required under § 6-6-15, Ala.Code 1975; thus, there is no final judgment from which Parham can appeal. Accordingly, the trial court’s February 6, 2008, order is void and is hereby vacated, and this appeal is dismissed. See Harvey v. City of Oneonta, 715 So.2d 779, 781 (Ala.1998) (‘A judgment of a court without jurisdiction is void. An appeal will not lie from a void judgment.’ (citing, among other cases, Luken v. BancBoston Mortgage Corp., 580 So.2d 578 (Ala.1991))).”

Parham v. American Bankers Ins. Co. of Florida, 24 So.3d 1102, 1103-04 (Ala.2009) (first emphasis added; footnotes omitted). See also Dawsey v. Raymond James Fin. Servs., Inc., 17 So.3d 639, 641-42 (Ala.2009).

There is no indication in the record that the arbitration award to RJFS in this case was entered as the judgment of the trial court. Both parties acknowledge on appeal that the award has not been entered as a judgment of the trial court. In consideration of the foregoing, and the undisputed fact that the arbitration award to RJFS was not entered as a judgment of the trial court as required by § 6-6-15, Ala.Code 1975, we can reach no other conclusion but that the trial court lacked subject-matter jurisdiction to review the award on remand. Accordingly, the trial court’s judgment purporting to vacate that award and to enter a judgment in favor of Honea is void and will not sustain an appeal, Parham, supra, and this appeal is dismissed.

APPEAL DISMISSED.

MOORE, C.J., and STUART, PARKER, and WISE, JJ., concur.

      . It appears from the record that the issue was actually discussed at a hearing.