author: MOORE, Judge. THOMPSON,

text:
    Bona Faye HICKS v. Donald Ray HICKS.
    2110408.
    Court of Civil Appeals of Alabama.
    Sept. 14, 2012.
    Rehearing Denied Nov. 9, 2012.

      Jerry Wayne Baker, Jr., and Thomas B. Woodall, Albertville, for appellant.
    W.N. Watson of Watson & Neeley, LLC, Fort Payne, for appellee.
   MOORE, Judge.

Bona Faye Hicks (“Bona Faye”) appeals from a December 15, 2011, judgment of the DeKalb Circuit Court (“the trial court”) denying her motion for contempt, sanctions, and specific performance stemming from a previous judgment entered by the trial court deciding a boundary-line dispute between Bona Faye and Donald Ray Hicks (“Donald”). We dismiss the appeal.

On January 9, 2009, Dennis Hicks (“Dennis”) and Bona Faye filed a complaint against Donald in the trial court regarding a boundary-line dispute. Following a trial, the trial court entered a judgment on September 18, 2009, ordering Donald to relocate a fence, which had been erected by Donald, to the location of a previous fence that Donald had removed.

On August 12, 2010, Dennis and Bona Faye filed a motion for contempt, sanctions, and specific performance. In that motion, they asserted that Donald had failed to comply with the trial court’s September 18, 2009, judgment because he had moved the fence only partially rather than according to the trial court’s directions. On September 29, 2011, Donald filed a suggestion of death, indicating that Dennis had died. On October 3, 2011, Donald filed a motion to dismiss, asserting that Dennis had died and that Dennis’s estate, which, Donald argued, was an indispensable party to the action, had not been opened. Donald requested the trial court to dismiss the action for the failure of Bona Faye to add Dennis’s estate as an indispensable party. On October 5, 2011, however, the trial court entered an order denying Donald’s motion to dismiss and noting that Bona Faye was prosecuting the motion for contempt, sanctions, and specific performance on her own behalf. The trial court also concluded that Donald had substantially complied with the trial court’s September 18, 2009, judgment and denied Bona Faye’s motion for contempt, sanctions, and specific performance.

Bona Faye filed a motion to alter, amend, or vacate on November 1, 2011, asserting, among other things, that the trial court lacked subject-matter jurisdiction to enter its October 5, 2011, judgment because no filing fee had been paid upon the filing of the motion for contempt, sanctions, and specific performance. On November 30, 2011, Donald filed a motion to dismiss Bona Faye’s postjudgment motion; he also sought an attorney fee.

On December 15, 2011, the trial court entered an order that stated, in pertinent part:

“It has been held that the payment of a docketing fee or the filing of a court-approved verified statement of substantial hardship is a jurisdictional prerequisite to the commencement of an action, and that a motion to enforce a previous order or judgment of the court is a new action that requires the payment of such a fee. Odom v. Odom, [89 So.3d 121 (Ala.Civ.App.2011) ]; Opinion of the Clerk [No. 17 ], Supreme Court of Alabama, 363 So.2d 97 (Ala.1978). A jurisdictional defect cannot be waived and the rule of equitable estoppel has not been applied to remedy such a defect.
“The Alabama Supreme Court has ruled, however, that when a filing fee has not been paid, the trial court may make such orders as are reasonable and necessary to ensure payment, and has approved the trial court giving a party an opportunity during the course of a proceeding to pay a filing fee that was not paid at the time of filing. Espinoza v. Rudolph, 46 So.3d 403 (Ala.2010).
“It appears to the court that the payment of the filing [fee], even at this stage of the proceeding, will cure the jurisdictional defect and that the court has the discretion to permit such late payment. Accordingly, the court finds that either party may, within 14 days from the date of this order, pay the filing fee that was unpaid by [Bona Faye], and upon such payment, the court will deny [Bona Faye’s] motion to alter, amend or vacate its order of October 5, 2011. In the event the filing fee is not paid within such period, then the court will vacate its order of October 5, 2011.”

On December 19, 2011, Donald filed a notice to the court, indicating that he had paid the filing fee associated with Bona Faye’s motion. Bona Faye filed her notice of appeal to this court on January 26, 2012.

Bona Faye raises only one issue on appeal — that the trial court lacked subject-matter jurisdiction to enter its October 5, 2011, judgment because no filing fee had been paid when the motion for contempt, sanctions, and specific performance was filed. Both parties agree that a “contempt action is a separate action requiring the payment of a filing fee.” G.E.A. v. D.B.A., 920 So.2d 1110, 1113 (Ala.Civ.App.2005). Citing Odom v. Odom, 89 So.3d 121 (Ala.Civ.App.2011), Bona Faye argues that the trial court lacked subject-matter jurisdiction to rule on her contempt motion for her failure to pay a filing fee when she filed that motion.

In Odom, the former husband filed a “motion for modification” of the support provisions of a judgment divorcing him from the former wife. The trial court purported to deny the former husband’s motion, and the former husband appealed. 89 So.3d at 121-22. Citing Vann v. Cook, 989 So.2d 556 (Ala.Civ.App.2008), this court dismissed the appeal and concluded that, because the former husband had failed to pay a docket fee or file a verified statement of substantial hardship seeking waiver of prepayment of any applicable docket fee, the trial court was without jurisdiction to act on the former husband’s motion. 89 So.3d at 123. This court stated in Vann:

“Section 12-19-70, Ala.Code 1975, provides that ‘a consolidated civil filing fee, known as a docket fee, [shall be] collected ... at the time a complaint is filed in circuit court or in district court,’ although that payment ‘may be waived initially and taxed as costs at the conclusion of the case’ if ‘[a] verified statement of substantial hardship’ is filed and is approved by the trial court. In turn, § 12-19-71(a)(7), AIa.Code 1975, specifies that a filing fee of $248 is to be collected ‘for cases filed in the domestic relations docket of the circuit court seeking to modify or enforce an existing domestic relations court order ’ (emphasis added [in Vann]). The payment of a filing fee or the filing of a court-approved verified statement of substantial hardship is a jurisdictional prerequisite to the commencement of an action. See De-Gas, Inc. v. Midland Res., 470 So.2d 1218, 1222 (Ala.1985); see also Farmer v. Farmer, 842 So.2d 679, 681 (Ala.Civ.App.2002) (‘The failure to pay the fifing or docketing fee is a jurisdictional defect.’).
“In this case, the record does not reflect that the mother paid any docketing fee with respect to her August 2005 motion to enforce the divorce judgment or her September 2005 petition for protection from abuse. Likewise, the record does not reflect that the father paid any filing fee with respect to his September 2005 motion to enforce the divorce judgment or his December 2005 petition for custody. Each of those filings may be characterized as ‘cases ... in the domestic relations docket of the circuit court seeking to modify or enforce an existing domestic relations court order’ under § 12-19-71(a)(7), yet on none of those occasions was the appropriate docketing fee paid.
“The trial court, in exercising jurisdiction over the parties’ claims asserted after the entry of its default judgment in April 2005, acted outside its jurisdiction because the parties did not pay the docketing fees required under Ala.Code 1975, § 12-19-70 et seq., for that court to acquire subject-matter jurisdiction. A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment. Hunt Transition & Inaugural Fund, Inc. v. Grenier, 782 So.2d 270, 274 (Ala.2000). The mother’s appeal is, therefore, dismissed, and the trial court is instructed to vacate all orders entered after the April 2005 default judgment. See, e.g., State Dep’t of Revenue v. Zegarelli, 676 So.2d 354, 356 (Ala.Civ.App.1996). Any further pleadings filed in the trial court in which either party may seek to enforce or modify that court’s April 2005 default judgment should be accompanied by the requisite filing fee.”

989 So.2d at 558-60.

Donald attempts to distinguish Odom and Vann from the present case by asserting that, in those cases, no filing fee was paid by either party at any time, whereas, in the present case, he argues, Donald paid the filing fee subsequent to the entry of the trial court’s December 15, 2011, order allowing either party to pay the filing fee.

In Bernals, Inc. v. Kessler-Greystone, LLC, 70 So.3d 315, 319 (Ala.2011), the Alabama Supreme Court discussed whether a jurisdictional defect can be cured with regard to lack of standing at the time a complaint is filed:

“The question of standing implicates the subject-matter jurisdiction of the court. Ex parte Howell Eng’g & Surveying, Inc., 981 So.2d 413, 419 (Ala.2006). ‘When a party without standing purports to commence an action, the trial' court acquires no subject-matter jurisdiction.’ State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999). Moreover, ‘[t]he jurisdictional defect resulting from the plaintiffs lack of standing cannot be cured by amending the complaint to add a party having standing.’ Cadle Co. v. Shabani, 4 So.3d 460, 463 (Ala.2008). When the absence of subject-matter jurisdiction is noticed by, or pointed out to, the trial’ court, that court has no jurisdiction to entertain further motions or pleadings in the case. It can do nothing but dismiss the action forthwith.’ Id. When a circuit court lacks subject-matter jurisdiction, all orders and judgments entered in the case, except an order of dismissal, are void ab initio. Redtop Market, Inc. v. State, 66 So.3d 204 (Ala.2010). Thus, if Brentwood lacked standing to. commence this action, then the absence of subject-matter jurisdiction was not cured by the substitution of Kessler, and every order and judgment entered by the trial court is void.”

Applying that discussion to the present case, we conclude that the lack of subject-matter jurisdiction at the outset of the case could not be cured by the subsequent payment of the filing fee.

The trial court relied on Espinoza v. Rudolph, 46 So.3d 403 (Ala.2010), in its judgment, concluding that Espinoza stood for the proposition that, “when a filing fee has not been paid, the trial court may make such orders as are reasonable and necessary to ensure p'ayment,” and that the trial court may “giv[e] a party an opportunity during the cour.se of a proceeding to pay a filing fee that was not paid at the time of filing.” We disagree.

In Espinoza, a filing fee was not submitted alongside a counterclaim,; the circuit court later dismissed the complaint that had initiated the action, and a subsequent motion to set aside the order dismissing the action, based on the still-pending counterclaim, was filed. 46 So.3d at 409. The circuit court entered an order allowing the counterclaimant 14 days to pay the requisite fee for her counterclaim; the court indicated that, upon her paying the fee, the status of the case would be changed from “disposed” to “active.” Id. The counter-claimant paid the filing fee and was ultimately successful on her counterclaim. Id. at 411. On appeal, the Alabama Supreme Court concluded that the circuit court had not erred by reinstating the counterclaims upon payment of the filing fee, stating, in pertinent part:

“In De-Gas, Inc. v. Midland Resources, 470 So.2d 1218 (AIa.1985), the plaintiffs did not pay the docket fee required by § 12-19-70(a)[, Ala.Code 1975,] until nearly two months after they had filed their complaint. The statute of limitations on the action had expired between the time the complaint was filed and the time the plaintiffs paid the docket fee. In considering whether the plaintiffs’ action commenced for statute-of-limitation purposes before the payment of the docket fee, this Court observed that ‘§ 12-19-70 requires the payment of filing fees ... at the time of filing the complaint ’ and that ‘the defendant in an initial action cannot know of the existence of the suit against him’ until the fees are paid and certain judicial action is taken on the complaint. Accordingly, this Court concluded that the payment of the fees required by § 12-19-70 ‘is a jurisdictional prerequisite to the commencement of an action for statute of limitations purposes.’ De-Gas, 470 So.2d at 1222. But cf. Rule 3(a), Ala. R. Civ. P. (‘A civil action is commenced by filing a complaint with the court.’).
“Section 12-19-71(a)(8), Ala.Code 1975, requires the clerk to collect a filing fee for a counterclaim filed in the circuit court. Jabez argues that, like the docket fee mandated by § 12-19-70, the filing fee for a counterclaim is ‘jurisdictional.’ See De-Gas, 470 So.2d at 1222. Jabez suggests that a counterclaim is not truly ‘filed,’ and thus does not become part of the action, until the filing fee required by § 12-19-70 is paid.
“Although § 12-19-70 expressly requires that the docket fee must be ‘collected from [the] plaintiff at the time [the] complaint is filed,’ § 12-19-70(a), Ala.Code 1975 (emphasis added), the legislature has not expressly provided that a, filing fee must be collected at the time a counterclaim is filed. Cf. DeGas, 470 So.2d at 1220 (‘ “There shall be a consolidated civil filing fee ... collected from a plaintiff at the time a complaint is filed....” ... It was the obvious intent of the legislature to require that either the payment of this fee or a court-approved verified statement of substantial hardship accompany the complaint at the time of filing.’ (quoting § 12-19-70, Ala.Code 1975)). Therefore, when Rudolph delivered the counterclaim to the clerk, the counterclaim was ‘filed’ and became a part of the action over which the trial court had jurisdiction. See Rule 5(e), Ala. R. Civ. P. (‘The filing of papers with the court as required by these rules shall be made by filing them with the clerk of the court....’); Rubin v. Department of Indus. Relations, 469 So.2d 657 (Ala.Civ.App.1985) (‘ “[A] pleading or other paper may be said to have been duly filed when it is delivered to the proper filing officer.” ’ (quoting Covington Bros. Motor Co. v. Robinson, 239 Ala. 226, 194 So. 663 (1940))); cf. Cunningham v. Lavoie, 874 So.2d 1068, 1071-72 (Ala.2003) (distinguishing the statutory fee for filing a claim in the probate court from the docket fee statutorily required to be submitted with complaint in a civil action in the circuit or district court); De-Gas, 470 So.2d at 1222 (distinguishing the docket fee submitted with a complaint from the filing fee required in conjunction with the filing of an appeal).”

46 So.3d at 413-14 (footnotes omitted).

Thus, the supreme court distinguished between the necessity of a filing fee alongside a complaint, which, in accordance with De-Gas, Inc. v. Midland Resources, 470 So.2d 1218 (Ala.1985), is jurisdictional, and the failure to pay a docket fee at the time a counterclaim is filed, which, it determined, may be subsequently cured.

Donald argues in his appellee’s brief that

“[ajddressing the jurisdictional defect in the manner prescribed by the trial court prevents plaintiffs, such as [Bona Faye] in this case, from filing a claim and pursuing it to the end, but getting another bite at the apple when they disagree with the final judgment. The trial court has already invested substantial time and money in the resolution of this case and to allow [Bona Faye] to pursue her claim a second time would cause the court’s already stretched resources to be stretched even further.”

Although we agree that this result is not particularly judicially economical, we note that this court has already considered whether a jurisdictional defect may be overlooked on the basis of estoppel in Vann, in which we stated: “[W]e reject the father’s contention that the mother is estopped to assert nonpayment of filing fees as a ground of attack on the trial court’s jurisdiction because (1) ‘jurisdiction over the subject matter of a proceeding cannot be conferred by estoppel.’ ” 989 So.2d at 559 (quoting Alves v. Board of Educ. for Guntersville, 922 So.2d 129, 134 (Ala.Civ.App.2005)).

Because no filing fee was paid when Bona Faye filed her motion for contempt, sanctions, and specific performance, we conclude that the trial court lacked subject-matter jurisdiction over the action. Because a judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal, we dismiss the appeal, albeit with instructions to the trial court to vacate all orders stemming from the filing of Bona Faye’s motion for contempt, sanctions, and specific performance. See Vann, supra.

APPEAL DISMISSED WITH INSTRUCTIONS.

THOMAS, J., concurs.

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

THOMPSON, P.J., dissents, with writing.

PITTMAN, J., dissents, without writing.

THOMPSON,

Presiding Judge, dissenting.

I respectfully dissent. I believe that the facts of this case are distinguishable from those of De-Gas, Inc. v. Midland Resources, 470 So.2d 1218 (Ala.1985), and that in subsequent cases this court has incorrectly applied the holding of that case.

In De-Gas, supra, the plaintiffs sued De-Gas, Inc., and others (“the defendants”) alleging breach of contract and fraud. However, because the plaintiffs did not pay the docket fee, the trial-court clerk only stamped the action as “filed”; she did not “assign the complaint a case number, list the case in the index of pending actions, docket the case, or forward the summonses and copies of the complaint to the sheriffs office for service.” De-Gas, 470 So.2d at 1219. The clerk in that case explained that it was the policy of the clerk’s office to hold an action and not take further action if the plaintiff had failed to pay the filing fee. The plaintiffs paid the filing fee two months after the statute of limitations had expired on their fraud claim. The defendants argued, among other things, that the fraud claim was barred by the applicable statute of limitations. The trial court disagreed and denied that part of the defendants’ summary-judgment motion that asserted that argument with regard to the fraud claim. Our supreme court reversed, concluding that “the payment of the fees required by § 12-19-70[, Ala.Code 1975,] or the filing of a court-approved verified statement of substantial hardship is a jurisdictional prerequisite to the commencement of an action for statute of limitations purposes.” De-Gas, Inc. v. Midland Res., 470 So.2d at 1222 (emphasis added). The supreme court noted that the clerk’s testimony in that case established

“that, unless the filing fees are paid at the time a complaint is filed, there is absolutely no judicial notice to a defendant that an action has been filed against him. Regardless of the fact that the clerk’s office stamped the complaint and summonses ‘filed’ on June 14, no real action was taken to set this suit in motion until the filing fees were paid, by which time the limitations period had expired. Not only were the defendants not notified by personal or other service, but they could not have even gone to the clerk’s office and found evidence that a suit had been filed against them because the case was not listed in the index of pending actions. Thus, the defendants received no more notice of this action than if the plaintiffs’ attorney had retained the complaint in his desk drawer.”

De-Gas, Inc. v. Midland Res., 470 So.2d at 1221.

Later, in Farmer v. Farmer, 842 So.2d 679 (Ala.Civ.App.2002), this court expanded the holding in De-Gas, supra. In that divorce case, during a hearing on a post-judgment motion that the father conceded was untimely filed, the father handed a petition to modify custody to the judge in open court. The record on appeal did not indicate that the petition to modify was filed in the trial court or with its clerk. The mother objected to the purported petition to modify, arguing, among other things, that the father was required to properly file and serve the modification petition and that he had failed to pay a filing fee for the modification action. The trial court overruled the mother’s objections, but it ultimately denied the father’s petition to modify. This court dismissed the appeal, holding that the father had failed to properly file the petition as required by Rule 5(e), Ala. R. Civ. P., so as to invoke the jurisdiction of the trial court. This court also noted that the father had failed to pay the filing fee and stated that “[t]he failure to pay the filing or docketing fee is a jurisdictional defect.” Farmer v. Farmer, 842 So.2d at 681 (citing De-Gas, supra). This court held that the trial court’s judgment was void for want of jurisdiction and dismissed the appeal.

This court again characterized a failure to pay a filing fee as a defect in. the trial court’s subject-matter jurisdiction in Vann v. Cook, 989 So.2d 556 (Ala.Civ.App.2008). In that case, the mother argued for the first time on appeal that the trial court had no jurisdiction over the modification and postjudgment proceedings initiated by both of the parties because neither she nor the father had paid the required filing fees for their respective filings in the trial court. In that case, this court held that the failure to pay the filing fee required in § 12-19-70(a), Ala.Code 1975, implicated the subject-matter jurisdiction of the trial court and dismissed the appeal as void for want of subject-matter jurisdiction. Vann v. Cook, supra.

This court went further in Odom v. Odom, 89 So.3d 121 (Ala.Civ.App.2011), and dismissed an appeal ex mero motu after examining the record on appeal and determining that the appellant had failed to pay filing fee in the trial court. This court again concluded that the failure to pay the filing fee rendered the trial court’s judgment void for want of subject-matter jurisdiction. Odom v. Odom, supra.

Although I concurred in those cases, I am now convinced that this court’s holdings in Farmer v. Farmer, supra, Vann v. Cook, supra, and Odom v. Odom, supra, extend beyond our supreme court’s holding in De-Gas, supra, and that in those cases this court incorrectly determined that the trial courts had lacked subject-matter jurisdiction over those actions because of a party’s failure to pay the filing fee required by § 12-19-70, Ala.Code 1975. The holding in De-Gas, supra, addressed when an action is deemed commenced for the purposes of analyzing a statute-of-limitations defense. De-Gas, Inc. v. Midland Res., 470 So.2d at 1222. The statute of limitations for an action is an affirmative defense and does not implicate the subject-matter jurisdiction of the trial court. Waite v. Waite, 891 So.2d 341, 343 (Ala.Civ.App.2004) (“[Although a trial court may dismiss an action on its own motion on a jurisdictional basis, affirmative defenses such as the statute of limitations or the doctrine of res judicata are not jurisdictional bases upon which a court may base a sua sponte dismissal.”). Rather, the statute of limitations may be raised to bar a claim asserted in the trial court, and, as an affirmative defense, it may be waived if it is not asserted by the defendant. Special Assets, L.L.C. v. Chase Home Finance, L.L.C., 991 So.2d 668, 675 (Ala.2007); Taylor v. Newman, 93 So.3d 108, 115 (Ala.Civ.App.2011).

I do not agree that the payment of the filing fee is a matter that implicates the subject-matter jurisdiction of a trial court to consider an action that is otherwise within the subject-matter jurisdiction of the court. Our supreme court did not hold in De-Gas that the trial court lacked subject-matter jurisdiction over the action because the plaintiff had failed to pay the required filing fee. Rather, I interpret De-Gas as holding that a filing fee must be paid at the time of the filing of the complaint for the purposes of properly initiating an action in compliance with the statute of limitations applicable to that action.

However, the circuit courts exercise jurisdiction over claims that are not subject to a statute of limitations. In this case, the claims are in the nature of contempt and enforcement, and those claims are not required to be filed within a certain time prescribed by a statute of limitations. In actions involving claims to which no statute of limitations applies, I cannot see how the payment of filing fees or the filing of a statement of substantial hardship can be said to be a “jurisdictional prerequisite to the commencement of an action [such as the one currently before this court] for statute of limitations purposes.” De-Gas, 470 So.2d at 1222 (emphasis added). As is explained later in this writing, I believe that the failure to pay a filing fee in cases such as this one is curable.

Further, § 12-19-70 is not set forth in a part of the Alabama Code governing the matters over which the various courts have jurisdiction. Rather, it is contained in Title 12, Article 19, which governs court finances. As the court noted in De-Gas, the purpose behind the enactment of § 12-19-70 was to ensure the payment of filing fees and to prevent a trial-court clerk from having to collect those fees after the termination of litigation. See De-Gas, 470 So.2d at 1220 (“No doubt the purpose behind the passage of this provision was to discourage the filing of frivolous suits and to insure that the clerks of the circuit courts do not become ‘credit men.’ ”). Accordingly, I conclude that, although it is preferable that the filing fee is paid at the initiation of a new action, the failure to do so is a matter of concern for the trial-court clerk and does not determine the trial court’s subject-matter jurisdiction to consider the pending action.

Recently, in Johnson v. Hetzel, 100 So.3d 1056, 1056 (Ala.2012), our supreme court, based on the argument of the appellant, held a trial court’s judgment void for want of subject-matter jurisdiction because the appellant had not paid the required filing fee. In that case, our supreme court relied on this court’s holdings in Odom v. Odom, supra, and Vann v. Cook, supra, as well as its own holding on De-Gas, supra.

The precedent of our supreme court is binding on this court. § 12-3-16, Ala.Code 1975; Farmers Ins. Exch. v. Raine, 905 So.2d 832, 835 (Ala.Civ.App.2004). For that reason, because of our supreme court’s holding in Johnson v. Hetzel, supra, this court cannot overrule Farmer v. Farmer, supra, Odom v. Odom, supra, and Vann v. Cook, supra, as improperly expanding the holding of De-Gas, supra. However, I would urge the supreme court to reexamine its holding in Johnson v. Hetzel, supra, and to consider whether, in this case, the main opinion again improperly expands the holding of De-Gas to hold that, in all cases, a failure to pay a filing fee under § 12-19-70 divests the circuit court of subject-matter jurisdiction over an action. I do not believe that such a holding was the intention of the legislature in enacting the requirement that litigants pay filing fees to offset the costs of litigation at the commencement of their actions.

Further, even assuming that the requirement of a filing fee does affect a trial court’s subject-matter jurisdiction, when a late payment of a filing fee would not affect the claim with regard to its statute of limitations, I believe any defect in jurisdiction may be cured by the payment of the filing fee. To hold otherwise sets the stage for anyone who can create doubt as to whether a filing fee was paid to seek to set aside a judgment, regardless of how old the judgment might be or whether the parties or others have relied upon the judgment. See International Longshoremen’s Ass’n v. Davis, 470 So.2d 1215, 1217 (Ala.1985) (A judgment entered without subject-matter jurisdiction can “be set aside at any time as void, either on direct or on collateral attack....”); Alves v. Board of Educ. for City of Guntersville, 922 So.2d 129, 134 (Ala.Civ.App.2005) (same). Under the holding of the main opinion and the cases upon which it relies, it is easy to foresee a situation in which parties might rely on a judgment for many years but in which another party who wants to avoid being bound by the judgment seeks to set aside the judgment for a failure to pay a filing fee. See Shamburger v. Lambert, 24 So.3d 1139, 1142 (Ala.Civ.App.2009) (“Rule 60 allows a party to move to set aside a judgment that is void for lack of subject-matter jurisdiction at any time.”); and J.T. v. A.C., 892 So.2d 928, 931 (Ala.Civ.App.2004) (same). Such a result would be unfortunate in cases in which a judgment that would be void under the holding of the main opinion involved a monetary judgment or an injunction, but it would be extremely damaging in the context of a divorce or custody judgment. Thus, the holding of the main opinion and the cases upon which it relies can operate to defeat the policy in favor of finality of judgments upon which the litigants may rely. See Mississippi Valley Title Ins. Co. v. Hooper, 707 So.2d 209, 214 (Ala.1997) (discussing the policy favoring finality of judgments).

In addition, as is the situation in this case, the effect of the holding in the main opinion is to allow parties to sue for certain relief, and, if that relief is denied, to use their own failure to pay a filing fee as a means to avoid the ramifications of the litigation. See also Johnson v. Hetzel, 100 So.3d at 1057 (the appellant successfully nullified a summary judgment in favor of the defendants on the basis of his own failure to pay the required filing fee); and Vann v. Cook, supra. The courts of this state have ruled that, in certain circumstances, parties may not assert lack of subject-matter jurisdiction after receiving an unfavorable adjudication. See Levine v. Levine, 262 Ala. 491, 493, 80 So.2d 235, 237 (1955) (holding that former wife was es-topped from setting aside a divorce judgment based on a lack of jurisdiction when the basis for jurisdiction had been affirmed by the former wife on original submission and the former wife “ha[d] enjoyed the fruits of the original decree”). See also Shapiro v. Shapiro, 280 Ala. 115, 117, 190 So.2d 548, 549 (1966) (applying the “doctrine of estoppel by conduct” in circumstances similar to those in Levine); Reiss v. Reiss, 46 Ala.App. 422, 429, 243 So.2d 507, 513 (Civ.App.1970) (“Mrs. Reiss, having acquiesced in the divorce decree and the separation agreement and having accepted the fruits thereof for some ten years, is estopped to have the same annulled and is bound by the terms thereof.”); and Hughes v. Hughes, 624 So.2d 198, 199 (Ala.Civ.App.1993) (“[Pjarties may be estopped to assert the invalidity of a decree to their own advantage obtained by their own fraud.”). “To constitute estop-pel the conduct of the party must have been intended for his adversary to act upon.” Colvin v. Payne, 218 Ala. 341, 343, 118 So. 578, 579 (1928). In this case, it is clear that in filing the contempt petition, Bona Faye intended that Donald and the trial court take action in response to that petition.

For the foregoing reasons, I conclude that the trial court properly denied Bona Faye’s postjudgment motion. Accordingly, I respectfully dissent from the main opinion’s reversal of that order.

      . See also Ex parte Carter, 807 So.2d 534 (Ala.2001) (concluding that, although the circuit court purported to invoke subject-matter jurisdiction over an inmate’s Rule 32, Ala. R.Crim. P., petition by taxing the filing fee as costs at the end of the proceeding, when the inmate had failed to pay a filing fee and the circuit court had not approved an in forma pauperis declaration for the petition, the circuit court’s order was void because the circuit court never had jurisdiction to rule on the petition).

      . In this writing, I assert my belief that the failure to pay a filing fee required by § 12-19-70 does not implicate the subject-matter jurisdiction of the circuit courts. In referencing that failure to pay a filing fee in this writing, I also intend to include those situations in which a party fails to properly obtain a waiver of the filing fee on the basis of substantial hardship. See § 12-19-70(b), Ala. Code 1975 (in order to obtain a. waiver of a filing fee, "[a] verified statement of substantial hardship, signed by the plaintiff and approved by the court, shall be filed with the clerk of court”).

      . I also believe that my interpretation is consistent with the analysis of De-Gas set forth in our supreme court's recent decision in Espinoza v. Rudolph, 46 So.3d 403 (Ala.2010). In that case, our supreme court concluded that a trial court did not err in reinstating counterclaims after the defendant paid the filing fees for those claims. The trial court and our supreme court rejected the plaintiff’s argument that the trial court had not obtained subject-matter jurisdiction over the counterclaims because the defendant had not paid the filing fee at the time he asserted the counterclaim. The court noted that § 12-19-71, Ala.Code 1975, which set forth the amount of filing fees to be paid on a counterclaim, did not require that those fees be paid at the time the counterclaim was filed. 46 So.3d at 413-14. In its analysis in that case, our supreme court noted that De-Gas had held that the payment of fees was a " 'jurisdictional prerequisite ... for statute of limitations purposes.' ” Espinoza v. Rudolph, 46 So.3d at 413. The court also noted that, in that case, the plaintiff had made no argument that the filing fee for the counterclaim had not been paid before the statute of limitations expired on that claim. Id. at 414 n. 11.

      . As is indicated in the main opinion, in this case, Donald paid the filing fee associated with Bona Faye’s motion.


source: Caselaw Access Project

author: PER CURIAM. SHAW, Justice MOORE, Chief Justice

license: Public Domain

text:
    Ex parte Donald Ray HICKS. (In re Bona Faye Hicks v. Donald Ray Hicks).
    1120227.
    Supreme Court of Alabama.
    May 31, 2013.
    W.N. Watson of Watson & Neeley, LLC, Fort Payne, for petitioner.

       Justice Bryan was a member of the Court of Civil Appeals when that court considered this case.

   PER CURIAM.

The petition for the writ of certiorari is denied.

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

WRIT DENIED.

STUART, BOLIN, PARKER, MURDOCK, MAIN, and WISE, JJ., concur.

SHAW, J., concurs specially.

MOORE, C.J., dissents.

BRYAN, J., recuses himself.

SHAW, Justice

(concurring specially). ■

I concur in denying the petition for the writ of certiorari. In the underlying case, Bona Faye Hicks and Dennis Hicks sued Donald Ray Hicks regarding a dispute over the location of a property line. The trial court entered a judgment in 2009 requiring Donald to relocate a boundary-line fence.

In August 2010, Bona Faye filed what is described in the Court of Civil Appeals’ opinion as a “motion for contempt, sanctions, and specific performance,” asserting that Donald had failed to comply with the trial court’s 2009 judgment. Hicks v. Hicks, 130 So.3d 184, 185 (Ala.Civ.App.2012). On October 5, 2011, the trial court found that Donald had in fact complied with the judgment and denied the motion. Bona Faye subsequently filed a “motion to alter, amend, or vacate,” asserting that the trial court lacked subject-matter jurisdiction to enter its October 5, 2011, decision denying her motion because no filing fee had been paid upon the filing of the “motion for contempt, sanctions, and specific performance.” Donald, the nonmovant, apparently then paid the filing fee.

On appeal to the Court of Civil Appeals, Bona Faye contended, as she had below, that the trial court lacked subject-matter jurisdiction to issue its October 5, 2011, decision because no filing fee had been paid when the “motion for contempt, sanctions, and specific performance” was initially filed. Proceeding under the premise, as argued by the parties, that a filing fee was required for the trial court to obtain subject-matter jurisdiction to rule upon that motion, the Court of Civil Appeals undertook to determine whether the presumed lack of subject-matter jurisdiction at the outset of Bona Faye’s motion, because she paid no filing fee, could be cured by Donald’s subsequent payment of that filing fee. That court, in a plurality decision, decided that Donald’s subsequent payment of the filing fee did not afford the trial court jurisdiction and dismissed the appeal with instructions for the trial court “to vacate all ■ orders stemming from the filing of Bona Faye’s motion for contempt, sanctions, and specific performance.” 130 So.3d at 189.

Donald petitions for certiorari review, contending that the Court of Civil Appeals erred in holding that the filing fee must be paid at the outset of the case and could not be paid at a later time. I see no probability of merit in Donald’s petition. See Rule 39(f), Ala. RApp. P. (providing that this Court may issue the writ of certiorari if it “concludes that there is a probability of merit in the petition....”). This is not because I agree with the rationale of the Court of Civil Appeals, nor is it because I do not believe that the allegations in the petition show no potential merit in the issue argued; instead, I reject the premise that a filing fee was actually required in this case. Specifically, trial courts retain “residual jurisdiction” to enforce their previous, final judgments. George v. Sims, 888 So.2d 1224, 1227 (Ala.2004) (“[A] trial court has ‘residual jurisdiction or authority to take certain actions necessary to enforce ... a final judgment....”’ (quoting Helms v. Helms’ Kennels, Inc., 646 So.2d 1343, 1347 (Ala.1994))). Here, Bona Faye’s motion “for contempt, sanctions, and specific-- performance” appears — from the limited facts before us — to be an attempt to have the trial court enforce its previous judgment requiring Donald to move the boundary-line fence. To the extent that that is what Bona Faye requested, the trial court retained “residual” jurisdiction to require Donald to do what the court’s final judgment required of him.

Both parties’ arguments in the Court of Civil Appeals were premised on a filing fee being required in order to move the trial court to enforce its 2009 judgment. I note that the cases cited in the Court of Civil Appeals’ opinion for that proposition— Odom v. Odom, 89 So.3d 121 (Ala.Civ.App.2011), and Vann v. Cook, 989 So.2d 556 (Ala.Civ.App.2008)—are both domestic-relations cases. As noted in both of those decisions, Ala.Code 1975, § 12-19-71(a)(7), requires a filing fee for petitions to “enforce an existing domestic relations court order.” (Emphasis added.) That Code section would not apply to require a filing fee in this case, which appears to involve an order in a property-line dispute, not a domestic-relations order. Further, G.E.A. v. D.B.A., 920 So.2d 1110 (Ala.Civ.App.2005), cited in the Court of Civil Appeals’ opinion, was also a domestic-relations case, but it cited Opinion by the Clerk, 381 So.2d 58, 59 (Ala.1980), for the proposition that a filing fee was required. As the Court of Civil Appeals recently noted, that Clerk’s Opinion was superseded, at least in part, in 1994 by the adoption of Rule 70A, Ala. R. Civ. P., governing contempt in civil cases. See Austin v. Austin, [Ms. 2120102, May 10, 2013]-So.3d- (Ala.Civ.App.2013). For all that appears, the authorities cited for the proposition that a filing fee was required for Bona Faye’s motion are inapplicable in this case.

From the limited materials before me, I would conclude that the trial court retained jurisdiction to entertain Bona Faye’s “motion for contempt, sanctions, and specific performance” and, thus, that no filing fee was required. However, I cannot reverse the judgment of the Court of Civil Appeals on this ground, because it is not argued to this Court in the petition stating the reasons this Court should issue the writ of certiorari. It is well settled that this Court will not reverse a lower court’s decision on an issue not raised on appeal. Hart v. Pugh, 878 So.2d 1150, 1157 (Ala.2003) (“[W]hen we are asked to reverse a lower court’s ruling, we address only the issues and arguments the appellant chooses to present.”), and Thompson v. Skipper Real Estate Co., 729 So.2d 287, 289 n. 2 (Ala.1999) (“Although this Court will affirm an order of the trial court on a ground not asserted below, ... this Court will not reverse a trial court’s judgment on a ground that has never been raised.”). This is true even if the argument would support a finding that a lower court had subject-matter jurisdiction. Crutcher v. Williams, 12 So.3d 631, 635 (Ala.2008) (“[T]his Court is not obligated to embark on its own expedition beyond the parties’ arguments in pursuit of a reason to exercise jurisdiction. The burden of establishing the existence of subject-matter jurisdiction falls on the party invoking that jurisdiction.”). This Court has no duty to perform a party’s legal research and cannot advocate legal arguments on any party’s behalf. Spradlin v. Birmingham Airport Auth., 613 So.2d 347, 348 (Ala.1993); see also Schiesz v. Schiesz, 941 So.2d 279, 289 (Ala.Civ.App.2006) (“It is not the function of [an appellate] court to advocate a position on behalf of an appellant or to create a legal argument for the appellant.”). The issue actually raised in Donald’s certiorari petition — whether a filing fee must be paid at the initiation of an action or whether it can be paid at a later time for purposes of bestowing on a trial court subject-matter jurisdiction — is an interesting one; however, because a resolution of that issue would be of no consequence, any discussion of it by this Court would be dictum. See Black’s Law Dictionary 454 (6th ed.1990) (defining “dictum” as “[statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand ..., [which] lack the force of an adjudication”).

It is true that the Court of Civil Appeals’ decision will stand in this case because the dispositive issue was not presented to this Court; however, such a result is not unique. This Court is routinely constrained to allow lower-court decisions to stand because the parties to the appeal have not placed before us the proper argument, even when we might believe those decisions to be erroneous. See, e.g., Ex parte McKinney, 87 So.3d 502, 509 n. 7 (Ala.2011) (calling into question prior case-law but refusing to overrule that caselaw because “this Court has long recognized a disinclination to overrule existing caselaw in the absence of either a specific request to do so or an adequate argument asking that we do so”).

MOORE, Chief Justice

(dissenting).

I dissent from the Court’s decision to deny the petition for the writ of certiorari in this case, because I conclude that Donald Ray Hicks raised a valid conflict between prior decisions and the Court of Civil Appeals’ decision that merits this Court’s review. The issue in this case is whether the failure to pay a filing fee in the trial court is a jurisdictional defect that deprives a court of subject-matter jurisdiction. The Court of Civil Appeals concluded that the trial court lacked subject-matter jurisdiction because Bona Faye Hicks did not pay a filing fee when she filed a motion for contempt. The Court of Civil Appeals dismissed Bona Faye’s appeal on that basis. Hicks v. Hicks, 130 So.3d 184 (Ala.Civ.App.2012).

In his certiorari petition to this Court, Donald argues that the Court of Civil Appeals’ decision conflicts with De-Gas, Inc. v. Midland Resources, 470 So.2d 1218 (Ala.1985), by improperly expanding the holding in that case. The Court in De-Gas stated that “the payment of the fees required by § 12-19-70[, Ala.Code 1975,] or the filing of a court-approved verified statement of substantial hardship is a jurisdictional prerequisite to the commencement of an action for statute of limitations purposes.” 470 So.2d at 1222 (emphasis added). Donald argues in his petition that the Court of Civil Appeals applied an incorrectly expanded holding in De-Gas by holding that the failure to pay a filing fee deprives the trial court of subject-matter jurisdiction. In so doing, the Court of Civil Appeals followed a line of its own cases construing De-Gas with similar breadth. See, e.g., Odom v. Odom, 89 So.3d 121 (Ala.Civ.App.2011), Vann v. Cook, 989 So.2d 556 (Ala.Civ.App.2008), and Farmer v. Farmer, 842 So.2d 679 (Ala.Civ.App.2002). Donald also asks the Court to overrule our decision in Johnson v. Hetzel, 100 So.3d 1056 (Ala.2012), which followed the Court of Civil Appeals’ expansion of the holding in De-Gas.

Presiding Judge Thompson dissented below and specifically urged this Court to reexamine our holding in Hetzel and

“to consider whether, in this case, the main opinion again improperly expands the holding of De-Gas to hold that, in all cases, a failure to pay a filing fee under § 12-19-70[, Ala.Code 1975,] divests the circuit court of subject-matter jurisdiction over an action.”

Hicks, 130 So.3d at 193. Judge Thompson raised several valid concerns. First, he pointed out that the statute of limitations is an affirmative defense that does not implicate a trial court’s subject-matter jurisdiction. Second, he noted that this Court in De-Gas did not hold that the trial court lacked subject-matter jurisdiction over the action because the plaintiff had failed to pay the filing fee, only that the action was barred by the statute of limitations. Third, he points out that the filing-fee statute, § 12-19-70, Ala.Code 1975, involves court finances and has nothing to do with a court’s subject-matter jurisdiction.

I agree with Judge Thompson’s concerns regarding De-Gas, Hetzel, and cases that have, in my opinion, improperly expanded the holding in De-Gas. This Court in De-Gas used the filing-fee requirement to determine whether a case had been “commenced” within the limitations period and referred to the fee as a “jurisdictional prerequisite.” Thereafter, the Farmer, Odom, and Vann decisions expanded upon the holding in De-Gas and made the failure to pay a filing fee in any case a bar to subject-matter jurisdiction. This Court in Hetzel appeared to endorse the expansion of the holding in De-Gas. But see Espinoza v. Rudolph, 46 So.3d 403 (Ala.2010) (noting that failure to pay a filing fee with counterclaims is not a jurisdictional defect and that the trial court may make such orders as reasonable and necessary to ensure payment). I join Judge Thompson in the belief that this Court and the Court of Civil Appeals have erroneously confused subject-matter jurisdiction and filing-fee requirements in cases applying the holding in De-Gas. I urge this Court to consider this issue in a future case.

      . Dennis died while this case was pending in the trial court.

      . It appears that Bona Faye’s motion was filed under, the case number of the original action — CV-09-4—and was not assigned a new case number, indicating that no “new” action was filed.

      . Both Bona Faye and Donald have the last name "Hicks,” raising the possibility that they could be related and that the dispute in this case might in fact stem from a prior domestic-relations case. However, I note that the trial court's case designation, containing a "CV” prefix, indicates that the underlying action was a civil action, not a domestic-relations case, which would have been given a “DR” prefix. Further, Bona Faye’s appeal was transferred from this Court to the Court of Civil Appeals pursuant to Ala.Code 1975, § 12-2-7(6), which authorizes the transfer of "any civil case.”

      . In certain situations, such as if a contempt proceeding is brought in the form of a counterclaim or cross-claim, the payment of a filing fee might be required. See Rule 70A(c)(1) (providing that a proceeding based on constructive contempt may be filed in the form of a counterclaim or a cross-claim) and Ala. Code 1975, § 12 — 19—71(a)(8) (providing for a filing fee to be paid with the filing of a counterclaim or a cross-claim).

      . Judge Thompson, with admirable contrition, noted that he had voted with the majority in Odom, Vann, and Farmer but that he now believes those opinions to be in error.

      . The De-Gas Court used the term "jurisdictional” in this one sentence only and did not otherwise discuss this issue in terms of the trial court's subject-matter jurisdiction. The isolated use of the term "jurisdictional” here, therefore, appears anomalous and, at most, dicta.


author: MOORE, Judge.

text:
    BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY v. Monica L. THOMAS. Monica L. Thomas v. Board of School Commissioners of Mobile County et al.
    2110728.
    Court of Civil Appeals of Alabama.
    Jan. 11, 2013.
    Rehearing Denied March 29, 2013.
    Certiorari Denied May 10, 2013 Alabama Supreme Court 1120803.
    Edgar P. Walsh of The Atchison Firm, P.C., Mobile, for appellant Board of School Commissioners of Mobile County and cross-appellees Board of School Commissioners of Mobile County; Levon C. Man-zie, William C. Foster, Ken Megginson, Judy P. Stout, and Reginald A. Crenshaw, in their official capacities as members of the Board of School Commissioners of Mobile County; and Roy D. Nichols, in his official capacity as superintendent of the Mobile County Public School System.
    Gregory B. Stein of Stein & Pilcher, L.L.C., Fairhope; and William F. Patty of Beers, Anderson, Jackson, Patty & Fawal, P.C., Montgomery, for appellee/cross-ap-pellant Monica L. Thomas.
   MOORE, Judge.

The Board of School Commissioners of Mobile County (“the Board”) appeals from a judgment of the Montgomery Circuit Court (“the trial court”) affirming Monica L. Thomas’s right to a hearing following the nonrenewal of her teaching contract with the Board. Thomas cross-appeals from the trial court’s dismissal of her counterclaim seeking redress from the Board and other individual defendants. We dismiss the appeal and the cross-appeal.

Facts and Procedural History

In a letter dated May 6, 2008, Roy D. Nichols, Jr., who was the superintendent of the Board at that time, notified Thomas that her employment contract with the Board would be nonrenewed at the end of the 2007-2008 school year. That letter provided, in pertinent part:

“You are being notified by this letter that during the May 5, 2008, meeting of the Board of School Commissioners, the Board by majority vote, approved the Superintendent’s motion to non-renew contracts of employment for some of the non-tenured teachers. Your name was on the list to be non-renewed. In keeping with the requirement of the Code of Alabama 1975, Section 16-24-12, this is your official notice that your contract of employment will not be renewed for the 2008-2009 school year.”

In a letter dated September 29, 2008, Thomas’s attorney asserted to Nichols that, based on Thomas’s employment history as a teacher within the Mobile County Public School System, she had acquired continuing-service status, or tenure, and requested that Nichols recognize Thomas’s status, reinstate her salary and benefits and pay her any sums due for the 2008-2009 school year, and return her to her last teaching position or another position acceptable to Thomas. That letter further indicated that, if Thomas was not accorded the requested relief within Í5 days of the date of the letter, her attorney would file an appeal of the decision not to renew her employment contract.

On October 14, 2008, Thomas filed a contest of her dismissal with the Chief Administrative Law Judge of the Division of Administrative Hearings, Office of the Attorney General (“the ALJ”); she requested an order finding that she had been dismissed in violation of the former Alabama Teacher Tenure Act (“the ATTA”), former § 16-24-1 et seq., Ala.Code 1975, and rescinding her dismissal. On November 3, 2008, the Board filed an answer to Thomas’s contest.

Both parties submitted briefs to the ALJ. The undisputed facts submitted to the ALJ reveal that Thomas had been employed by the Board as a teacher at Howard Elementary School for the entire 2003-2004 school year; at Meadowlake Elementary School for the entire 2004-2005 school year; and at Indian Springs Elementary School from the beginning of the 2005-2006 school year until January 30, 2006, at which time she voluntarily resigned her position. Thomas was rehired by the Board as a teacher at Craig-head Elementary School on September 14, 2006, for the remainder of the 2006-2007 school year and for the entire 2007-2008 school year, when she received Nichols’s May 6, 2008, letter regarding the nonre-newal of her employment contract. On July 8, 2011, the ALJ entered a final order, concluding that Thomas had attained tenure and that the Board was required to afford her a hearing pursuant to former § 16-24-21, Ala.Code 1975, a part of the ATTA.

On August 5, 2011, the Board filed a petition for a writ of certiorari in the trial court, requesting that the trial court reverse the decision of the ALJ. On September 15, 2011, Thomas filed a response to the Board’s petition; she also filed a counterclaim against the Board, also adding as counterdefendants Nichols and the other members of the Board, Reginald A. Cren-shaw, Judy P. Stout, Levon C. Manzie, Ken Megginson, and William Foster, in their individual and official capacities. In her counterclaim, Thomas sought a declaratory judgment, a writ of mandamus, and a permanent injunction to compel the counterdefendants to offer Thomas a position as a teacher in the Mobile County Public School System, to order the coun-terdefendants to recognize her status as a tenured teacher, and to order the counter-defendants to pay Thomas the liquidated amount she would have earned had she continued her employment as a teacher with the Mobile County Public School System at the end of the 2007-2008 school year.

The Board filed a brief in support of its petition on November 7, 2011. On November 11, 2011, the Board and the remaining counterdefendants filed a motion to dismiss Thomas’s counterclaim. In support of their motion to dismiss, the counterde-fendants asserted that Thomas had failed to state a claim upon which relief could be granted, pursuant to Rule 12(b)(6), Ala. R. Civ. P., and that her claims for backpay and other equitable relief were barred by the applicable statute of limitations. On November 16, 2011, Thomas filed a response in opposition to the Board’s brief supporting its petition for a writ of certio-rari and in support of her counterclaim. The Board and the remaining counterde-fendants filed a reply brief on November 28, 2011.

On December 6, 2011, the trial court entered a judgment denying the Board’s petition for a writ of certiorari, affirming the ALJ’s decision, and dismissing Thomas’s counterclaim. Thomas filed a post-judgment motion on December 20, 2011, requesting the trial court to reinstate her counterclaim or, in the alternative, to clarify its reason for dismissing her counterclaim. The Board- filed a postjudgment motion on December 27, 2011, requesting the trial court to reconsider its denial of its petition for a writ of certiorari; that motion was denied on January 3, 2012. The trial court denied Thomas’s postjudgment motion on March 12, 2012. On April 18, 2012, the Board filed its notice of appeal to this court. Thomas filed her cross-appeal on April 25, 2012.

Discussion

The Board argues on appeal that the trial court erred in affirming the ALJ’s decision because, it says, Thomas was not a tenured teacher and, thus, was not entitled to a hearing following the nonrenewal of her contract. Thomas cross-appeals on the ground that the trial court erred in dismissing her counterclaim. We cannot address those issues, however, because we conclude that this court lacks subject-matter jurisdiction. See Alabama Dep’t of Pub. Safety v. Barbour, 5 So.3d 601 (Ala.Civ.App.2008).

The ATTA provided that teachers could attain continuing-service status by serving “under contract as a teacher in the same county or city school system for three consecutive school years .... ” Former § 16-24-2(a), Ala.Code 1975. Teachers that attained continuing-service status, or tenure, could only be dismissed for certain grounds as stated in former § 16-24-8, Ala.Code 1975, and only by following the exact notice and hearing procedures established in former § 16-24-9, Ala.Code 1975. On the other hand, the employment contracts of teachers who had not attained continuing-service status, i.e., “nontenured” teachers, could be canceled if, “in the opinion of the [school] board, the best interests of the school require[d] it,” former § 16-8-23, Ala.Code 1975, and such a cancellation could be effectuated by simply notifying the teacher of the nonrenewal of his or her employment contract in compliance with former § 16-24-12, Ala.Code 1975. Nontenured teachers did not have any rights to a conference with the employing board or to a hearing before an administrative law judge or other hearing officer to contest the school board’s decision to cancel his or her employment contract. See, e.g., Nelson v. Etowah Cnty. Bd. of Educ., 708 So.2d 413 (Ala.Civ.App.1997).

Although the ATTA set out a very clear distinction between tenured and nontenured teachers, it did not provide any mechanism for resolving disputes regarding whether a particular teacher had attained continuing-service status. In Boyd v. Alabama State Tenure Commission, 406 So.2d 488 (Ala.Civ.App.1981), an employing school board determined that a teacher had not attained continuing-service status and summarily canceled the teacher’s employment contract. This court held that the teacher could not contest the school board’s determination through any administrative proceedings because the Tenure Commission could only hear appeals from tenured teachers. This court suggested that the issue whether the teacher had attained continuing-service status could be decided only through an original legal action filed in circuit court. 406 So.2d at 439.

In Berry v. Pike County Board of Education, 448 So.2d 315 (Ala.1984), our supreme court, relying on Boyd, held that whether a teacher has attained continuing-service status cannot be decided in an administrative proceeding. The court noted that, at that time, the ATTA bestowed upon the Tenure Commission the authority to hear employment-termination contests filed only by tenured teachers but that the ATTA did not give the Tenure Commission any authority over nontenured teachers. The supreme court stated: “Since the [Tenure] Commission lacks jurisdiction to render a decision that a teacher is not tenured, it lacks the authority to determine the issue of the existence, vel non, of tenure.” 448 So.2d at 317. The court further stated that “[n]o administrative remedy exists for a teacher who claims to be tenured, but who is treated by the employing board as not tenured.” Id. Thus, the supreme court agreed with Boyd that “the proper place to litigate that issued i.e., the question of a teacher’s tenured status,] is in the circuit court.” Id. Two years later, in Alabama Association of School Boards v. Walker, 492 So.2d 1013 (Ala.1986), the supreme court clarified that its holding in Berry applies in any case “in which a teacher’s tenure status vel non is itself the primary issue to be resolved, i.e., whether tenure status was ever gained.” 492 So.2d at 1015.

It is clear from the record that Nichols and the Board treated Thomas as a nontenured teacher. The May 6, 2008, letter from Nichols notified Thomas that the Board had designated her as a nontenured teacher and that the Board had summarily decided to nonrenew her employment contract. The letter did not apprise Thomas of any of the rights she would have under former § 16-24-9 as a tenured teacher. Thomas obviously disputed the position of the Board and Nichols, as outlined in her September 29, 2008, letter in which she asserted that she had attained continuing-service status and that she was thus entitled to the full protection of the ATTA before her employment could lawfully be terminated.

Thomas submitted the dispute regarding her tenure status to the ALJ in October 2008; however, the ALJ did not have jurisdiction over that dispute. As was the case in 1984 and 1986 when Berry and Walker were decided, as of 2008 the ATTA did not provide an administrative remedy to resolve a dispute as to tenure status. In 2008, former § 16-24-9 and former § 16-24-10, Ala.Code 1975, provided that hearing officers (as opposed to the former Tenure Commission) were to decide contests regarding the termination of employment contracts of tenured teachers, but not of nontenured teachers. Former § 16-24-21(a), Ala.Code 1975, upon which the ALJ in this case specifically relied for its jurisdiction, provided:

“A teacher who has attained continuing service status and has been denied a hearing before the local board of education as required by Section 16-24-6, 16-24-9, 16-24-15, or 16-24-18[, Ala. Code 1975,] shall have the right to appeal directly to the Chief Administrative Law Judge of the Office of Administrative Hearings, Division of Administrative Law Judges, Office of the Attorney General for relief.”

(Emphasis added.) Former § 16-24-21 provided appellate rights only for tenured teachers, not nontenured teachers. Consistent with the reasoning of Berry, Walker, and Boyd, the ALJ did not have jurisdiction to decide the - threshold question whether Thomas had attained continuing-service status. That issue could be decided only in a legal action before the circuit court, and any action taken by the ALJ on that issue is void and without effect.

In Ex parte Warwick Development Co., 681 So.2d 569 (Ala.1996), our supreme court denied a petition for a writ of certio-rari directed to this court’s decision in R.B.Z. v. Warwick Development Co., 681 So.2d 566 (Ala.Civ.App.1996), in which this court reversed a summary judgment entered by the trial court. At the time it denied certiorari review, the supreme court did not have any information before it indicating that the amount in controversy exceeded $50,000, the jurisdictional limit of this court. On a later petition for a writ of mandamus, the supreme court received information that the amount in controversy had exceeded the jurisdictional limit of this court. Ex parte R.B.Z., 725 So.2d 257, 258 (Ala.1997). The supreme court held that, if upon a review of the record in R.B.Z. v. Warwick Development Co., 681 So.2d 566, it determined that this court had acted without subject-matter jurisdiction, it' would treat the reversal by this court as a nullity and would consider the initial appeal as if it had been transferred by this court to the supreme court as it should have been originally. Ex parte R.B.Z., 725 So.2d at 260-61. In effect, the supreme court held that, if it had decided a petition for a writ of certiorari from a void decision, that decision would have no legal effect.

In this case, the Board purported to file a petition for writ of certiorari to the trial court. Although the petition asserted at one point that the Board was contesting the jurisdiction of the ALJ, the body of the petition merely attacked the legal conclusions drawn by the ALJ as to the merits of the contest regarding Thomas’s tenure status. The Board did not request that the trial court determine whether the ALJ had lacked subject-matter jurisdiction over that basic issue. See Riley v. Hughes, 17 So.3d 643, 648 (Ala.2009) (“[S]ubject-mat-ter jurisdiction cannot be waived by the failure to argue it as an issue.”). Accordingly, the trial court responded to the issues as set out in the petition, without first investigating whether the ALJ had acted within its statutory authority by asserting jurisdiction over the matter. Based on Ex parte R.B.Z., we conclude that the trial court lacked the authority to review on a petition for a writ of certiorari the substance of the order entered by the ALJ that was entered wholly without statutory jurisdiction and that the petition filed by the Board, essentially seeking judicial review of the merits of a void order, failed to invoke the trial court’s subject-matter jurisdiction.

Because the proceedings in the trial court were void ab initio, the trial court lacked the authority to enter its judgment against the Board. See Bernals, Inc. v. Kessler-Greystone, LLC, 70 So.3d 315, 321 (Ala.2011). Likewise, because the Board’s petition did not invoke the trial court’s jurisdiction, that court likewise did not obtain jurisdiction over Thomas’s counterclaims, filed in the same action, and its dismissal of those counterclaims is also void. See Blevins v. Hillwood Office Ctr. Owners’ Ass’n, 51 So.3d 317, 321-23 (Ala.2010) (Because plaintiff lacked standing, complaint failed to invoke trial court’s subject-matter jurisdiction, and action was due to be dismissed in toto, including defendant’s counterclaims.). A void judgment will not support an appeal or a cross-appeal. See Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008). Thus, we dismiss the appeal and the cross-appeal as being from a void judgment, albeit with instructions to the trial court to vacate its void judgment and to remand the cause to the ALJ with instructions that the ALJ vacate its void order as well.

APPEAL AND CROSS-APPEAL DISMISSED WITH INSTRUCTIONS.

PITTMAN and BRYAN, JJ., concur.

THOMPSON, P.J., and THOMAS, J., concur in the result, without writings.

      . The Board accepted her resignation in February 2006.

      . This case differs materially from Birmingham City Board of Education v. Hawkins, 48 So.3d 638 (Ala.Civ.App.2009). In Hawkins, it was undisputed that Hawkins, the teacher, had attained tenured status before allowing her teaching certificate to lapse. The local school board purported to cancel her employment contract without following the notice and hearing requirements established in former §§ 16-24-9 and -10, Ala.Code 1975, on the ground that the lapse had extinguished Hawkins’s status as a teacher. Hawkins appealed to an administrative law judge under former § 16-24-21, Ala.Code 1975, who held that, as a tenured teacher, Hawkins was entitled to notice and a hearing before her employment contract could be terminated. The local school board then filed a petition for writ of certiorari, which the Montgomery Circuit Court denied, prompting an appeal to this court. The issue in Hawkins was not whether Hawkins had acquired tenured status, but whether she was, in fact, still a teacher due to the lapse of her teaching certificate. Former § 16-24-21 provided a tenured teacher the right to appeal to an administrative law judge if he or she was denied his or her rights to notice and a hearing, so Hawkins followed the correct procedure in that case. In this case, Thomas and the Board dispute whether Thomas ever attained tenured status, which dispute cannot be decided under former § 16-24-21.


author: THOMPSON, Presiding Judge. MOORE, Judge,

text:
    HUNTSVILLE CITY BOARD OF EDUCATION v. James STRANAHAN. Huntsville City Board of Education v. Dwight Holmes.
    2110252 and 2110286.
    Court of Civil Appeals of Alabama.
    March 1, 2013.
    Certiorari Denied May 10, 2013 Alabama Supreme Court 1120699.

      Edward E. Wilson, Jr., of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellant.
    Robert C. Lockwood and Christopher L. Lockwood of Wilmer & Lee, P.A., Huntsville; and Sabrina L. Comer of Comer & Gundlach, PLLC, Montgomery, for appel-lees.
   On Applications for Rehearing

THOMPSON, Presiding Judge.

This court’s opinion of November 2, 2012, is withdrawn, and the following is substituted therefor.

, On April 25, 2011, the superintendent for the Huntsville City Board of Education (“the Board”), Dr. Ann Roy Moore (“the superintendent”), notified James Strana-han and Dwight Holmes; among others, of her intention to seek the termination of their employment with the Board. Strana-han and Holmes were employed as mechanics for the Board. As the basis for the terminations, the superintendent stated in the notices that, because of adverse financial conditions, the Board was required to terminate the employment of some of its employees and that the Board had implemented a Reduction in Force (“RIF”) policy to accomplish that task. Stranahan and Holmes each contested the proposed termination of his employment pursuant to the RIF policy. We note that these actions are governed by the former Fair Dismissal Act (“the former FDA”), § 36-26-100 et seq., Ala.Code 1975, which has been repealed' and replaced by the Students First Act (“the SFA”), § 16-24C-1 et seq., Ala.Code 1975, effective July 1, 2011. See also Board of Sch. Comm’rs of Mobile Cnty. v. Christopher, 97 So.3d 163, 171 (Ala.Civ.App.2012) (holding that portions of the SFA that provide that the SFA is effective upon its passage were substantive in nature and, therefore, that the SFA could not have retrospective application). It is undisputed that Strana-han and Holmes were nonprobationary employees under the former FDA.

On May 17, 2011, the Board approved the termination of the employment of Stra-nahan and Holmes, among others, and Stranahan and Holmes each sought review of that decision pursuant to former § 36-26-105, Ala.Code 1975. On September 14, 2011, a hearing officer received ore tenus evidence in Stranahan’s action, and on November 19, 2011, the hearing officer entered a decision reversing the decision of the Board. On October 7, 2011, a hearing officer conducted a hearing in Holmes’s action, and on December 1, 2011, the hearing officer entered a decision reversing the decision of the Board.

The Board filed timely requests for an appeal in both actions. See former § 36-26-104(b), Ala.Code 1975. This court accepted the appeals. Stranahan’s appeal was assigned appeal number 2110252, and Holmes’s appeal was assigned appeal number 2110286. This court ordered, ex mero motu, that the two appeals be consolidated.

On appeal, the Board first argues that the hearing officers each erred in determining that the Board did not provide Stranahan and Holmes proper notice of the intended termination of their employment. We note that the facts pertaining to this issue are undisputed, and, therefore, the argument involves whether the hearing officers properly applied the law to the undisputed facts. Accordingly, this court reviews this issue de novo. Ex parte Soleyn, 33 So.3d 584, 587 (Ala.2009).

The former FDA provided that a notice of termination to a nonprobationary employee “shall state the reasons for the proposed termination, shall contain a short and plain statement of the facts showing that the termination is taken for one or more of the reasons listed in Section 36-26-102, and shall state the time and place for the board’s meeting on the proposed termination.... ” Former § 36-26-103(a). The former FDA provided that the employment of nonprobationary employees such as Stranahan and Holmes may be terminated “for failure to perform his or her duties in a satisfactory manner, incompetency, neglect of duty, insubordination, immorality, justifiable decrease in jobs in the system, or other good and just causes.” Former § 36-26-102, Ala.Code 1975.

The termination notices sent by the superintendent to Stranahan and Holmes stated, in pertinent part:

“You are hereby given notice of my intention to recommend termination of [your employment as] a Mechanic for Huntsville City Board of Education as provided in § 36-26-102, Ala.Code 1975. The reason for the proposed termination is as follows: justifiable decrease in jobs in the system or other good and just causes.
“The facts showing that the termination is taken for one or more of the reasons listed in § 36-26-102, Ala.Code 1975, are as follows:
“1) Due to financial circumstances, the Board must reduce the number of its employees. To accomplish this, the Board had adopted a Reduction in Force plan. The selection of the employees to be terminated is based upon the job classifications affected by the Reduction in Force plan and years of service within the Huntsville School System (those with fewer years of service in each specifically identified area are to be terminated before those with greater seniority).”

The hearing officer reviewing Strana-han’s action found that the notice quoted above was “very vague and [did] not provide sufficient information to an employee to mount a defense.” The hearing officer in Holmes’s action found the notice vague and ambiguous and stated that it “provided no factual rationale relative to the Board’s decision to terminate.” In reaching their decisions, both hearing officers concluded that the notices did not sufficiently apprise Stranahan and Holmes that the reason for the termination of their employment, or that the termination of employment of other mechanics, was a cost-savings measure.

The Board contends that its statement of the basis for the proposed terminations of Stranahan’s and Holmes’s employment was a sufficient “short and plain statement of the facts” under former § 36-26-103(a). The Board argues that the former FDA did not require that it include in its “short and plain statement of the facts” a detailed explanation of proration of state funding, the funding of school boards, and the Fiscal Accountability Act, § 16-13A-1 et seq., Ala. Code 1975.

In Bishop State Community College v. Archible, 33 So.3d 588 (Ala.Civ.App.2009) (“Archible ”), this court addressed whether a notice of termination under the former FDA was sufficient under former § 36-26-103. In that case, two employees were notified of the intent to terminate their employment with Bishop State, a community college subject to the former FDA. The notices that the employees received stated an identical factual basis for each employee’s termination, specifically: “ You committed financial improprieties in relation to the receiving of financial 'aid and scholarships.’ ” Archible, 33 So.3d at 590. This court originally held that, considering the notice and the surrounding circumstances, that notice was sufficient under the former FDA. Bishop State Cmty. Coll. v. Archible, 33 So.3d 577, 584 (Aa.Civ.App.2008). On certiorari review, our supreme court held that this court had erred in considering the “surrounding circumstances” in determining whether the notice provided to the employees by Bishop State was sufficient, and it reversed this court’s judgment. Ex parte Soleyn, 33 So.3d at 587. In so holding, our supreme court stated:

“Section 36-26-103 provides the exclusive means by which an employer such as Bishop State may terminate employees such as Archible and Soleyn. Under § 36-26-103(a), Bishop State was clearly obligated to provide each employee with a notice of intent to terminate his employment that ‘state[d] the reasons for the proposed termination’ and that ‘contained] a short and plain statement of the facts showing that the termination [was] taken for one or more of the reasons listed in Section 36-26-102.’ ”

Ex parte Soleyn, 33 So.3d at 588.

In Archible, supra, on remand from the supreme" court’s decision in Ex parte Soleyn, supra, this court stated:

“This court has held that, in order to afford minimal due process to an employee under the [Fair Dismissal] Act, the notice of proposed termination must advise the employee ‘ “of the cause or causes for his [or her] termination in sufficient detail to fairly enable him [or her] to show any error that may exist.” ’ State Tenure Comm’n v. Page, 777 So.2d 126, 131 (Ala.Civ.App.2000) (quoting James v. Board of School Comm’rs of Mobile County, 484 F.Supp. 705, 715 (S.D.Ala.1979), quoting in turn Stewart v. Bailey, 556 F.2d 281, 285 (5th Cir.1977)); see also State Tenure Comm’n v. Jackson, 881 So.2d 445, 449 (Ala.Civ.App.2003) (stating that the notice of proposed termination should be ‘sufficiently-detailed to provide an adequate opportunity for [the. employee] to prepare a defense to those charges’). In the present cases, the-notices of proposed termination do not meet the requirement of setting forth a ‘short and plain statement of the facts.’ Neither notice set forth what ‘financial improprieties’ had been committed so as ‘to provide an adequate opportunity for [the employees] to prepare a defense to those charges.’ Jackson, 881 So.2d at 449. The language used is so vague as to fall below the minimum due process that must be afforded an-employee under the Act.”

Archible, 33 So.3d at 590-91.

In the present case, the Board cited a “justifiable decrease in jobs in the system” as the reason for the proposed terminations. See former § 36-26-102, Ala.Code 1975. In the notices, the Board then explained that reason by citing financial circumstances that necessitated the imposition of the RIF policy, and it explained the manner in which the employees whose employment was to be terminated under the RIF policy would be selected. Thus, the notices of termination provided by the Board explained that the Board’s current financial circumstances warranted the decrease of jobs in the system. See Ex parte Soleyn, 33 So.3d at 588.

Stranahan and Holmes each argue that under Archible, supra, a more detailed explanation of the basis of the Board’s financial situation was required. We disagree. As the Board points out, in Archible, supra, the terminations at issue were proposed because of financial improprieties, and this court determined that more information was required. - It seems axiomatic that a more detailed statement of allegations of misconduct would be necessary to allow an accused employee to defend against those allegations. In this case, however, there are no adverse allegations for Stranahan or Holmes to defend against. The basis for the proposed terminations was that the Board was experiencing financial difficulties necessitating the implementation of the RIF policy. The primary argument asserted by Stranahan and Holmes before the hearing officers was that the notice they received from the superintendent did not afford them sufficient information to defend against the specific selection of them as employees whose employment was to be terminated. We cannot conclude that the former FDA required, as part of the Board’s notice to each employee terminated under a RIF policy, that the Board set forth the specific facts underlying its financial condition and the expected benefit of the implementation of the RIF policy, particularly with regard to each employee terminated.

We conclude, that the hearing officers erred in determining that the superintendent’s notices to Stranahan and Holmes were insufficient under former § 36-26-103, AACode 1975. The hearing officer in Holmes’s action concluded that the notice Holmes received was insufficient and pre-termitted consideration of the other issues raised. Accordingly, we reverse the decision entered with regard to Holmes, and we remand the cause in appeal number 2110286 to the hearing officer for further proceedings consistent with this opinion.

In appeal number 2110252 pertaining to Stranahan, the hearing officer also determined that the Board had not met its burden in presenting evidence in support of the termination of Stranahan’s employment. The hearing officer determined that the Board had not demonstrated a proper basis for determining that terminating Stranahan’s employment would result in a cost savings to the Board. However, this court held in Christopher, supra, that, when it has been determined that a teacher’s employment was terminated because of a “justifiable decrease in jobs in the system,” see former § 36-26-102, the hearing officer lacks the authority to determine whether the termination of the employment of a particular employee was justifiable. 97 So.3d at 176. In that case, the hearing officer, although recognizing the validity of the implementation of the RIF policy, found that Christopher was an excellent employee and an asset to the school system and, thus, reversed the termination decision. This court reversed the decision of the hearing officer, concluding that termination decisions under a RIF policy were within the discretion of the employing board. The court explained, in part:

“In the case of a termination pursuant to a RIF policy, ... the conduct of the employee is not at issue. The purpose of a termination pursuant to a RIF policy is cost savings to the employing board. Where a termination of employment is made because of a justifiable decrease in the jobs in the system, see former § 36-26-102, the selection of any other form of discipline or sanction under former § 36-26-104(a)[, Ala.Code 1975,] would not achieve the long-term cost-savings goal of the termination pursuant to a RIF policy.”

Christopher, 97 So.3d at 174.

In this case, the hearing officer in Stranahan’s action determined that the Board had failed to meet “its burden to prove the reasons for termination stated in the termination letter,” i.e., that there were financial reasons warranting the imposition of the RIF policy. In his analysis of that issue, the hearing officer found that any cost savings from terminating Strana-han’s employment were minimal at best, that the Board did not present evidence in the form of a cost analysis to demonstrate its savings in terminating Stranahan’s employment, and that the Board “used the artifice of terminating employees and shifting to contractors” in order to attempt to save money. However, under the holding in Christopher, supra, the merits of the Board’s decisions made pursuant to a RIF policy, so long as those decisions are not made with an improper motive, are not within the scope of review of the hearing officer. Accordingly, “[w]e agree with the Board that the responsibility for making the difficult decisions regarding which positions to eliminate pursuant to a justified implementation of a RIF policy rests with the Board and that hearing officers and the courts ‘are not permitted to usurp the role of the school board.’” Christopher, 97 So.3d at 176 (quoting Walker v. Montgomery Cnty. Bd. of Educ., 85 So.3d 1008, 1016 (Ala.Civ.App.2011)). Accordingly, we reverse the decision of the hearing officer in Stranahan’s appeal, number 2110252, and we remand the cause to the hearing officer for further proceedings consistent with this opinion.

2110252 — APPLICATION FOR REHEARING GRANTED; OPINION OF NOVEMBER 2, 2012, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

2110286 — APPLICATION FOR REHEARING GRANTED; OPINION OF NOVEMBER 2, 2012, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

PITTMAN and DONALDSON, JJ., concur.

MOORE, J., concurs specially, which THOMAS, J., joins.

MOORE, Judge,

concurring specially.

The primary issue on appeal is whether James Stranahan and Dwight Holmes received sufficient notice of the reasons for the proposed termination of their employment, pursuant to former § 36-26-103(a), Ala.Code 1975, a part of the former Fair Dismissal Act (“the former FDA”), former § 36-26-100 et seq., Ala.Code 1975, which provided, in pertinent part, that a notice of termination to a nonprobationary employee “shall state the reasons for the proposed termination [and] shall contain a short and plain statement of the facts showing that the termination is taken for one or more of the reasons listed in Section 36-26-102[, Ala.Code 1975]

The records in these consolidated appeals show that Dr. Ann Roy Moore, then superintendent of the Huntsville City Board of Education (“the Board”), sent letters to Stranahan and Holmes stating that she was recommending termination of their employment because of “a justifiable decrease in jobs in the system or other good and just causes.” Both of those grounds are contained in former § 36-26-102. Thus, the letters clearly informed Stranahan and Holmes of the statutory reasons for the proposed termination of their employment.

The letters further stated that, “[d]ue to financial circumstances, the Board must reduce the number of its employees.” The hearing officers who reviewed the actions of the Board in terminating the employment of Stranahan and Holmes concluded that this information did not satisfy the requirement in former § 36-26-103(a) that the Board supply “a short and plain statement of the facts showing that the termination is taken for one or more of the reasons listed in Section 26-26-102.” In particular, the hearing officers determined that the notices failed to comply with the standards established in Bishop State Community College v. Archible, 33 So.3d 577 (Ala.Civ.App.2008) (“Archible I”), reversed, Ex parte Soleyn, 33 So.3d 584 (Ala.2009), opinion on remand, 33 So.3d 588 (Ala.Civ.App.2009) (“Archible II ”).

In Archible I, this court held that a school board must comply with due process by giving its nonprobationary employees “notice of the reasons for their terminations in sufficient detail to provide them an adequate opportunity to prepare a defense to those charges.” 33 So.3d at 583. This court agreed that a notice complies with due process when it “ ‘creates a material and clear “[bjurden of [p]roof” for the [e]mployer and an equally clear “[p]osition of [d]efense” for the [e]mployee’ ” because the notice “must be sufficient to apprise the employee of the grounds for termination the employer intends to prove and against which the employee will have to defend.” 33 So.3d at 583 (quoting hearing officer’s decision). Under that standard,

“an employing authority subject to the [former FDA] may not simply recite a statutory ground for termination, but must notify the employee of the factual bases underlying that ground... However, the employer need not provide a detailed statement of the evidence that would be presented against the employee at a termination hearing to prove the factual basis for the termination.”

Id. In Ex parte Soleyn, our supreme court further clarified that the notice must contain sufficient information on its own to allow an employee an adequate opportunity to contest the proposed termination without reference to “surrounding circumstances.” Ex parte Soleyn, 33 So.3d at 587-88. On remand from the supreme court, this court held that a letter informing Angelo Archible.that his employment was to be terminated for “ ‘financial improprieties in relation to the receiving of financial aid and scholarships’ ” did not adequately apprise Archible of the specific “improprieties” that he had allegedly committed. 33 So.3d at 590-91.

In this case, the Board cited “financial circumstances” as the reason for its decision to reduce its workforce. By naming “financial circumstances” as the motivating factor, the Board notified Stranahan and Holmes that it was not basing the reduction in force on a decrease in the student population, technological advances eliminating the need for their positions, the reorganization of the school district or the mechanic department within the district, the discontinuance or reduction of the .use of the vehicles they serviced, or other similar justifications. The notice necessarily imparted that the Board intended to reduce its workforce exclusively to save the costs associated with the salaries and other monetary benefits payable to Stranahan and Holmes and not for any other reason.

The letters thus informed Stranahan and Holmes that the Board intended to prove that it had decided to lessen the number of its employees as one rational method of correcting a poor financial condition. See Huntsville City Bd. of Educ. v. Frasier, 122 So.3d 193 (Ala.Civ.App.2013). The letters sufficiently notified Stranahan and Holmes that they could defend against the termination of their positions by showing “ ‘that there is no rational basis for the decision [to implement a reduction in force] or that it is based on personal, political or discriminatory motives or is a subterfuge to avoid rights arising from [the employee’s nonprobationary status],’ ” Frasier, 122 So.3d at 204 (quoting Taborn v. Hammonds, 324 N.C. 546, 556, 380 S.E.2d 513, 519 (1989)), or, additionally, by proving that the Board did not follow its reduction-in-force policy or that the Board had impermissibly retained a probationary employee in their positions. Frasier, supra.

The letters did not convey to Stranahan and Holmes the exact financial condition of the Board; nor did the letters specify the nature of the causes leading to that financial condition or the extent of the financial relief the Board anticipated from the reduction in force. However, former § 36-26-103(a) did not require such detail in order to provide a nonprobationary employee an opportunity to mount an adequate defense to the proposed termination of his or her employment for financial reasons. In these cases, the letters crystallized the position of the Board sufficiently enough for Stranahan and Holmes to investigate the statements of the Board as to its financial condition and to depose two of the financial officers with relevant information as to the financial condition of the Board and the measures taken by the Board to correct that financial condition. At the hearings, the Board did not surprise Stranahan and Holmes with some new factual basis for the termination of their employment, nor did the Board reveal some previously hidden or concealed information upon which it was relying for its stated reason for the reduction in force.

Thus, based on the de novo standard of review applicable to these cases, see Ex parte Soleyn, 33 So.3d at 587, I concur that this court should reverse the determinations of the hearing officers. The hearing officers should vacate that portion of their determinations finding that the Board did not comply with former § 36-26-103(a) and address the merits of the cases.

THOMAS, J., concurs.

      . The parties to these appeals were invited to submit briefs as amici curiae on a jurisdictional issue to be addressed in Board of School Commissioners of Mobile County v. Christopher, supra. Briefing in these appeals was stayed pending the decision in that case.

      . Under former § 36-26-104(a), the hearing officer could select any of the following actions to be taken with regard to the employee: "Termination of the employee, a suspension of the employee, with or without pay, a reprimand, other disciplinary action, or no action against the employee.”

      . On application for rehearing, Stranahan and Holmes each contend that he alleged that his employment was terminated for an improper reason. See Christopher, 97 So.3d at 173-74 ("We cannot agree with the hearing officer's determination that former § 36-26-104(a) authorized him to determine, in the absence of allegations of improper motive, whether the termination of a particular employee's employment was justifiable under a RIF policy.”). In asserting that argument, Stranahan and Holmes each cite to portions of the record in support of their allegation that the terminations were "arbitrary.” We note that that allegation is irrelevant to a determination whether notice of the termination itself was sufficient. Further, to the extent Stranahan argues that the hearing officer could consider his purported allegation of improper motive to determine whether the termination of his employment was valid under the RIF policy, we conclude he has failed to demonstrate error. In the context of the former FDA, a termination of employment for "improper reasons” required that the termination be shown to have occurred for personal or political reasons. See former § 36-26-102, Ala.Code 1975 (the termination of a non-probationary employee’s employment "shall not be made for political or personal reasons on the part of any party recommending or voting to approve said termination”); Bishop State Cmty. Coll. v. Thomas, 13 So.3d 978, 985 (Ala.Civ.App.2008). The allegation by Stranahan or Holmes that the termination of his employment was "arbitrary” does not constitute an argument that the termination was made for personal or political reasons.