text:
    Regina Diane WEATHERS, Appellant v. Scotty Wade GUIN, Appellee.
    No. 2013-CA-01366-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2014.
    Michael Lee Dulaney, Tupelo, attorney for appellant.
    James Roger Franks Jr., William Rufus Wheeler Jr., attorneys for appellee.
    Before IRVING, P.J., FAIR and JAMES, JJ. •
   IRVING, P.J.,

for the Court:

¶ 1. After awarding custody of Regina Weathers and Scott Guin’s minor son, Jacob, to Regina, the Chancery Court of Itawamba County entered a modification order transferring custody of Jacob to Scott and ordering Regina to pay child support for Jacob. The chancery court later entered a contempt order, finding Regina in contempt for violating the modification order. Regina appeals from the modification order, arguing that there was no basis for the custody modification because no hearing was held and she did not consent to the terms of the order. Regina also argues that the chancery court erred by finding her in contempt.

¶2. For the reasons that follow, we reverse and remand for further proceedings.

FACTS

¶ 3. Regina and Scott were divorced on December 1, 2008. In the divorce decree, the chancery court awarded primary custody of two of Regina and Scott’s minor children, Jacob and Brittany, to Regina, with Scott having visitation with them. The chancery court awarded Scott primary custody of the third minor child, Courtney, with Regina being awarded visitation.

¶ 4. On June 4, 2013, Scott filed a complaint in the chancery court, seeking modification of the initial custody order to grant him custody of Jacob and Brittany based on substantial and material changes in circumstances, specifically: (1) Regina’s consumption of alcohol in the children’s presence, (2) Regina’s disparaging statements about Scott to the children, and (3) Regina’s threats to move the children to another state. Scott also insisted that Regina had allowed Jacob and Brittany to suffer injuries, although he did not specify the type of injuries or how they occurred.

¶ 5. By order filed July 8, 2013, without citing a material change in circumstances, the chancery court modified the original custody order and awarded permanent physical and legal custody of Jacob to Scott, with Regina having visitation. The chancery court also ordered Regina to pay child support for Jacob. Pursuant to the modification order, neither Scott nor Regina could move the children out of state, make disparaging remarks about each other in the children’s presence, consume alcohol in the children’s presence, or operate a motorized vehicle with either of the children while under the influence of alcohol. Despite the language in the modification order stating that the chancery court had made its findings after “both parties [had] appeared with counsel” and that the parties had appeared “[o]n the date and time set for hearing,” no transcript has been provided to this Court on appeal. The modification order was approved as to form by Scott’s attorney and Regina’s attorney.

¶ 6. Also on July 8, 2013, Scott filed a second complaint in the chancery court, alleging that Regina had refused to return Jacob to Scott’s custody on Friday, July 5, 2013, and that Regina had made disparaging remarks about Scott in Jacob’s presence. Scott also insisted that Regina had failed to meet her child-support obligation and had refused to allow the children to speak with Scott when he called. On July 22, 2013, Regina filed a motion to set aside the modification order, arguing that she had neither agreed to nor approved the order and insisting that the order was entered without a hearing or presentation of any proof. The record reveals that the chancery court did not rule on the motion to set aside its modification order.

¶ 7. On August 7, 2013, Regina appealed “to the Supreme Court of Mississippi against ... Scott ... from the [o]rder filed on July 8, 2013.” On August 22, 2013, the chancery court filed an order of contempt, finding that Regina was not in contempt for failing to return Jacob to Scott on July 5, 2013, but finding that Regina was in contempt for failing to fulfill her child-support obligation for Jacob and for making disparaging remarks about Scott in Jacob’s presence.

¶ 8. In her appeal, Regina argues that the chancery court erred by modifying custody of Jacob without an agreement between the parties or a hearing on the merits to determine whether Scott had proved, by a preponderance of the evidence, that the custody modification was warranted. She insists that although her attorney approved the modification order as to form, she did not consent to its terms.

¶ 9. In response, Scott argues that the chancery court made its findings following a one-day trial. According to Scott, the chancery court instructed Scott’s attorney to prepare the modification order, which was later presented to, and approved by, Regina’s attorney. Scott insists that the chancery court modified custody of Jacob only after interviewing Jacob and Brittany in chambers. Additionally, Scott argues that the chancery court correctly applied the Albright factors in determining Jacob’s best interest, and that both the modification order and the contempt order were proper.

DISCUSSION

¶ 10. At the outset, we note that the chancery court’s failure to rule on Regina’s motion to set aside the modification order does not affect the validity of this appeal, as Regina’s motion was filed more than ten days following the entry of the order modifying custody, and Regina filed her notice of appeal within thirty days of the entry of the modification order. Thus, Regina’s motion to set aside the modification order must be treated as a Rule 60 motion. A Rule 60 motion pursuant to the Mississippi Rules of Civil Procedure “does not affect the finality of a judgment or suspend its operation.” Bank of Edwards v. Cassity Auto Sales, Inc., 599 So.2d 579, 582 (Miss.1992); see also M.R.C.P. 60(b)(6).

¶ 11. We also note our lack of jurisdiction over issues concerning the contempt order due to Regina’s failure to properly appeal from that order. Rule 3(a) of the Mississippi Rules of Appellate Procedure provides that “[a]n appeal permitted by law as of right from a trial court ... shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4.” Rule 4 of the Mississippi Rules of Appellate Procedure provides that a “notice of appeal ... shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” Here, Regina appealed only the modification order. Therefore, we only discuss the issues raised by Regina concerning the modification order.

I. Child, Custody

¶ 12. In support of her argument that the chancery court erred by modifying custody of Jacob without a hearing and without her consent to the modification order, Regina cites two cases, Klein v. McIntyre, 966 So.2d 1252 (Miss.Ct.App.2007), and Samples v. Davis, 904 So.2d 1061 (Miss.2004). Before discussing these cases, we should point out that we cannot ascertain from the record whether the modification order was entered without the benefit of a hearing.

¶ 13. In Regina’s designation of record, she asked that the transcript of the hearing conducted on July 1, 2013, be made a part of the record. Yet no transcript was provided. Further, the order granting the modification -does not reference a hearing on a specific date, although it does state that both parties appeared with counsel on the date and time set for the hearing. Noticeably, however, the order does not state that any evidence was adduced at the hearing or that the court made its findings based on any evidence adduced at the hearing. Additionally, the docket does not indicate that a hearing was set for July 1, 2013, although an “order of setting” was entered on June 18, 2013, apparently setting something for a hearing. It could have been a setting for a hearing on the motion for modification, but we are unable to ascertain from the record if that was the case. With this said, we return to the cases cited by Regina and discuss them in reverse order.

¶ 14. In Samples, following a divorce and after the parties had entered into a consent judgment governing the custody and maintenance of their children, the parties sought modifications of the judgment. Id. at 1062-63 (¶¶ 1-5). The parties went before the chancery court for a hearing, but no hearing was held due to a possible settlement of the parties’ issues. Id. at 1063 (¶ 6). The parties later went before the chancery court a second time with a settlement agreement, which the appellant refused to sign. Id. at 1066 n. 2. The chancery court later entered that judgment as a purported consent judgment. Id. The Mississippi Supreme Court found that because neither the appellant nor his attorney had signed the purported consent judgment and because the terms of the judgment were not announced in open court and recorded by a court reporter, there was not substantial credible evidence to support the judgment. Id. at 1065 (¶ 14). The facts of that case are distinguishable from the case before us. Here, the modification order is not a purported consent judgment.

¶ 15. In Klein, the chancery court entered a consent judgment as well as a judgment that was not consented to by the parties, both of which were signed by the chancery court and the parties’ attorneys. Klein, 966 So.2d at 1254 (¶ 4). There was no transcript of any prior hearings held before the judgments were entered. Id. at 1256 (¶ 14). The judgments contained spaces, which were designated for the parties’ attorneys’ signatures and which indicated that the judgments were “Approved as to Form.” Id. at 1254 (¶ 4). However, when signing the judgments, to make it clear that the appellant did not agree to the substance thereof, the appellant’s attorney made a handwritten notation near the space designated for his signature, indicating that the judgments were “Approved as to Form Only.” Id. at (¶¶ 4-5). On appeal, the pro se appellant submitted a statement from her attorney in which the attorney stated:

I have enclosed copies of the agreed judgment and of the judgment reflecting the recent ruling by the Judge in your case. You will note that I signed them, but stated they were approved as to form only[,] which means that you do not agree with the content of the orders.

Id. at (¶ 6). Also on appeal, the appellant argued that the chancery court erred by entering both judgments because she had not agreed to their contents, as indicted by her attorney’s handwritten notations. Id. at 1255 (¶ 8). As to the consent judgment, this Court found that the. appellant had not expressed full agreement because she had agreed to the form of the consent order, but not to its substance. Id. at 1256 (¶ 15). As to the order that was not a consent judgment, this Court found that “[i]f ... the order was not the result of the parties’ agreement, the [chancery court] was required to make specific findings of fact to support the modification[.]” Id. at 1258 (¶ 20). Klein is distinguishable from the case now before us because this case does not involve a consent judgment. As previously indicated, there is no language in the modification order that suggests that Scott and Regina had reached an agreement on the issues presented to the chancery court in Scott’s first petition. Consequently, before entering the modification order, the chancery court was required to make factual findings to support the modification. The modification order makes no findings.

¶ 16. It is well established that “[chancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters, and their decisions will not be reversed if the findings of fact are supported by substantial credible evidence.” Tidmore v. Tidmore, 114 So.3d 753, 757 (¶8) (Miss.Ct.App.2013) (quoting Wilson v. Wilson, 79 So.3d 551, 560 (¶ 37) (Miss.Ct.App.2012)). “A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. A chancellor’s conclusions of law are reviewed de novo.” McDonald v. McDonald, 39 So.3d 868, 879 (¶ 33) (Miss. 2010) (citing Lowrey v. Lowrey, 25 So.3d 274, 285 (¶ 26) (Miss.2009)).

¶ 17. “When considering a modification of child custody, the proper approach is to first identify the specific change in circumstances, and then analyze and apply the Albright factors in light of that change.” Marter v. Marter, 914 So.2d 743, 746 (¶ 5) (Miss.2005) (quoting Sturgis v. Sturgis, 792 So.2d 1020, 1025 (¶ 19) (Miss.Ct.App.2001)). “In determining whether a material change of circumstances has occurred, a chancellor should look at ‘the overall circumstances in which a child lives.’ ” McDonald, 39 So.3d at 880 (¶ 37). “[A] chancellor’s failure to make specific findings as to each individual Al-bright factors is reversible error.” Davidson v. Coit, 899 So.2d 904, 911. (¶ 18) (Miss. Ct.App.2005) (citing Powell v. Ayars, 792 So.2d 240, 249 (¶ 18) (Miss.2001)).

¶ 18. Generally, absent a record indicating otherwise, we assume that a chancery court’s order was based on adequate evidence. See Thompson v. Miss. Dep’t of Human Seros, ex rel. Surber, 856 So.2d 739, 741 (¶ 8) (Miss.Ct.App. 2003). Additionally, an appellate court “will not reverse a [cjhancery [c]ourt’s factual findings, be they of ultimate fact or of evidentiary fact, where there is substantial evidence in the record supporting these findings.” Bryan v. Holzer, 589 So.2d 648, 658 (Miss.1991) (citing Mullins v. Ratclijf 515 So.2d 1183, 1189 (Miss. 1987)).

¶ 19. Here, the record reveals that in the modification order, the chancery court completely failed to identify a material change in circumstances warranting modification before finding that it was in Jacob’s best interest to grant Scott custody of Jacob. The order simply provides that “it is in the best interest of [Jacob] for [the chancery court] to award permanent physical and legal custody of [Jacob] to [Scott] with [Regina] having visitation as previously set out[.]” The remaining provisions of the order concern child support, financial obligations of Regina and Scott, and behavioral restrictions placed on Regina and Scott. Because the chancery court failed to identify a material change in circumstances warranting custody modification, the modification order is insufficient for us to determine the chancery court’s basis for the custody modification. Moreover, the chancery court failed to make specific findings as to each individual Al-bright factor. Accordingly, we reverse the modification order as to the custody modification and remand for further proceedings.

II. Child Support

¶ 20. Prior to the entry of the modification order, Scott was obligated to pay $250 per month in child support for Jacob. However, in the modification order, the chancery court terminated Scott’s child-support obligation and imposed child support on Regina, for Jacob, in the amount of $100 per month.

¶21. We are aware that our law presumes that a noncustodial parent will pay child support. See generally Brewer v. Holliday, 135 So.3d 117, 120-21 (¶14) (Miss.2014) (finding that “[noncustodial parents pay child support to custodial parents for the benefit of the child, not the parent, and that support belongs to the child, not the custodial parent”). However, because we reverse the modification order as to child custody, we pretermit discussion of the chancery court’s imposition of child support on Regina, and we reverse the modification order as to child support, pending resolution of the custody-modification issue.

¶ 22. THE JUDGMENT OF THE ITAWAMBA COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . Scott styled this petition as a "Complaint for Modification and for Citation of Con- > tempt,” although he did not ask the chancery court to find Regina in contempt in the petition.

      . Regina is represented by a different attorney on appeal.

      .Scott also styled this petition as a "Complaint for Modification and for Citation of Contempt,” although he did not ask the chancery court for a custody modification in the petition.

      . Albright v. Albright, 437 So.2d 1003 (Miss.1983).


source: Caselaw Access Project

author: IRVING, P.J.,

license: Public Domain

text:
    D’Andre TERRELL a/k/a D’Andre M. Terrell a/k/a Dandre Marshaund Terrell, Appellant, v. STATE of Mississippi, Appellee.
    No. 2013-KM-01129-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2014.

      Jeffrey A. Varas, Hazlehurst, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before IRVING, P.J., FAIR and JAMES, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. D’Andre Terrell was convicted of driving under the influence (DUI) in the Justice Court of Copiah County, and he appealed to the Copiah County Circuit Court for a trial de novo that resulted in him also being found guilty of DUI. Terrell now appeals, arguing that (1) the circuit court erred in denying his motion for a directed verdict, and (2) the evidence was insufficient to support his conviction.

¶ 2. Finding no error, we affirm.

FACTS

¶,3. On November 10, 2012, Terrell was charged with DUI after he stopped at a driver’s license checkpoint set up by Mississippi highway patrolmen Craig Morgan and Timothy Fuller. During trial in the circuit court, Trooper Morgan testified that Terrell drove towards the checkpoint as Trooper Morgan and Trooper Fuller were setting up. Trooper Morgan could not recall whether he had activated his blue lights before Terrell approached the checkpoint. Trooper Morgan stated that when Terrell approached, he noticed that Terrell’s pupils were dilated, that his eyes were red, and that he was somewhat argumentative. Trooper Morgan also smelled alcohol on Terrell’s breath. Trooper Morgan testified that he checked Terrell’s driver’s license, which was valid. Trooper Morgan then asked Terrell to exit Terrell’s vehicle so that Trooper Morgan could administer an initial portable breath test (PBT), which yielded positive results. Trooper Morgan stated that upon Terrell exiting his vehicle, Terrell had to lean on Terrell’s car for support. Trooper Morgan asked Terrell if he had been drinking, and according to Trooper Morgan, Terrell indicated that it was his birthday. Trooper Morgan also observed a marijuana cigarette in Terrell’s vehicle. Trooper Morgan then administered a second PBT, which also yielded positive results. Trooper Morgan could not recall whether he asked Terrell to undergo any field sobriety tests.

¶ 4. Trooper Morgan testified that he transported Terrell to the Copiah County Sheriffs Department to administer a breath test to determine Terrell’s breath-alcohol-concentration (BAC) level. Trooper Morgan was not able to get any BAC-test results in two attempts. During the first attempt, a frequency from a cell phone or some other device went off as the intoxilyzer was attempting to read the results. Trooper Morgan was not allowed to explain what happened the second time the attempt was made. Trooper Morgan testified that the factors that he considered in charging Terrell with DUI were the odor of alcohol on Terrell’s breath, the positive PBTs, and Terrell’s red eyes and dilated pupils.

¶ 5. At the conclusion of the State’s case, Terrell moved for a dismissal, arguing that the State had not met its burden of proving DUI. Following the circuit court’s denial of that motion, Terrell testified in his own defense. According to Terrell, on that night, he left a friend’s house around 11:40 p.m. After driving approximately fifteen feet, he noticed flashlights on the side of the road. Terrell stated that he eventually noticed Trooper Morgan and Trooper Fuller, so he stopped his car to present his driver’s license to Trooper Fuller, not Trooper Morgan. According to Terrell, after he stopped and rolled his window down, Trooper Fuller asked Terrell if he had been drinking, and Terrell stated that he had not, although it was his birthday. Trooper Fuller asked Terrell why his eyes were red, and Terrell replied that he had an irritated contact and that he was suffering from a cold. On cross-examination, Terrell stated that Trooper Fuller administered two PBTs, neither of which detected the presence of alcohol. Also on cross-examination, Terrell testified that while in transport to the sheriffs department, he revealed to Trooper Morgan that he had had several cough drops, which may have explained the smell of alcohol on his breath. Terrell admitted that Trooper Morgan was present at the checkpoint that night.

¶ 6. Jalisa Fulgham testified that Terrell had visited her on the night of November 10, 2012, and that Terrell did not seem to be intoxicated during his visit. Fulg-ham also stated that Terrell did not drink any alcoholic beverages while he was at her house, and that he did not seem intoxicated when he left her house around 11:40 p.m.

¶ 7. At the conclusion of trial, the circuit court found that the State had proved beyond a reasonable doubt that Terrell was guilty of DUI, and affirmed the judgment of the justice court. Terrell filed a motion for reconsideration, which the trial court denied.

DISCUSSION

¶ 8. Although Terrell characterizes his ore tenus motion as one for a directed verdict, there was no verdict to direct, as the case was heard in a bench trial. Instead, Terrell’s motion is best characterized as a motion to dismiss based on insufficient evidence. Although Terrell has presented two issues for review — whether the circuit court erred in denying his “motion for directed verdict” and whether the evidence is sufficient to support the guilty conviction — they are in reality a single issue challenging the sufficiency of the evidence. See Thames v. State, 5 So.3d 1178, 1188 (¶ 32) (Miss.Ct.App.2009) (citation omitted).

¶ 9. “In reviewing a challenge to the legal sufficiency of the evidence, [an appellate court] considers all of the evidence in the light most favorable to the prosecution and accepts all evidence supporting the verdict as true.” Bradford v. State, 102 So.3d 312, 314 (¶ 7) (Miss.Ct. App.2012) (citation omitted). “We will reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.” Id. at 315 (¶ 7) (citation omitted).

¶ 10. Mississippi Code Annotated section 63-11-30(1)(a) (Rev. 2013) states that “[i]t is unlawful for a person to drive or otherwise operate a vehicle within this state who ... [i]s under the influence of intoxicating liquor[.]” As noted, during trial, Trooper Morgan testified that when Terrell stopped at the checkpoint, he smelled alcohol on Terrell’s breath and he noticed that Terrell had dilated pupils and red eyes. Trooper Morgan stated that when he asked Terrell to exit his vehicle, Terrell had to lean on the vehicle to support himself. Additionally two PBTs revealed alcohol on Terrell’s breath.

¶ 11. Terrell argues that the evidence was insufficient to support his conviction because Trooper Morgan did not have firsthand knowledge of the events that occurred on the night of Terrell’s arrest. Therefore, Terrell insists that Trooper Morgan’s testimony should not have been admitted by the circuit court. However, during trial, Terrell acknowledged that Trooper Morgan was present at the checkpoint. More importantly, Terrell failed to raise a contemporaneous objection to Trooper Morgan’s testimony during trial. Terell is, therefore, precluded from raising this issue for the first time on appeal. Smith v. State, 724 So.2d 280, 319 (¶ 155) (Miss.1998).

¶ 12. Terrell also argues that the evidence was insufficient because he had an adequate explanation for each factor that Trooper Morgan considered in charging him with DUI. However, this argument in effect challenges, not the sufficiency of the evidence presented by the State during trial, but the weight and credibility given by the circuit court to that evidence. The issue of the weight of the evidence presented against Terrell during trial is not before this Court on this appeal. After reviewing the record and considering the evidence in the light most favorable to the prosecution and accepting all evidence supporting the conviction as true, we conclude that the evidence was sufficient to support Terrell’s conviction. Accordingly, we affirm.

¶ 13. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT OF CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCE TO PAY A $500 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.


text:
    Derrick RANDLE a/k/a Derrick Cox, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00910-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2014.
    Derrick Randle, appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before IRVING, P.J., FAIR and JAMES, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Randle appeals the dismissal of his post-conviction-relief (PCR) motion by the Circuit Court of Holmes County. Randle appeals and raises two issues: (1) whether the circuit court erred in using the same facts at two different revocation hearings and (2) whether the circuit court erred in revoking his suspended sentence in a case for which he claims he had not started serving the post-release-supervision (PRS) portion of that sentence. As will be explained further, we dismiss Randle’s appeal as untimely.

FACTS

¶ 2. On February 5, 2008, Randle entered pleas of guilty to burglary of a commercial building in cause number 11,827 and to receiving stolen property in cause number 11,821. The circuit court sentenced Randle to concurrent terms of five years in the custody of the Mississippi Department of Corrections (MDOC), with two years to serve and three years on PRS.

¶ 8. On September 22, 2010, following a revocation hearing, the circuit court modified Randle’s probation in cause numbers 11,821 and 11,827 and ordered Randle to complete a restitution program. Randle was also ordered to pay court costs, attorney’s fees, and all moneys in arrears.

¶ 4. On October 1, 2010, Randle entered a plea of guilty to business burglary in cause number 10-0046. The circuit court sentenced Randle to five years in the custody of MDOC, with six months to serve, credit for time already served, and thereafter four and one-half years on PRS. The court also ordered Randle to pay restitution, attorney’s fees, and court costs in cause number 10-0046 while completing the restitution program in cause numbers 11,821 and 11,827.

¶ 5. On February 11, 2011, at a revocation hearing in all three cause numbers, the State presented Dewayne Montgomery, a parole officer, who testified that Randle had failed to comply with the rules of the restitution program by disobeying staff, being loud and boisterous, and being charged with disorderly conduct and public drunkenness by the Leake County Sheriffs Department on February 1, 2011. The circuit court ordered that Randle be transferred to another restitution center.

¶6. On March 22, 2011, the circuit court held a second revocation hearing in all three cause numbers. The State presented Al Jobe, a parole officer, who testified that Randle became aggressive towards Officer Montgomery and Sergeant Van Mayberry during the attempt to transfer Randle to the new restitution center. The court revoked Randle’s probation in all three cause numbers. •

¶ 7. On November 29, 2012, Randle filed his PCR motion, which was summarily denied by the circuit court on January 11, 2018. However, Randle did not attempt to appeal until July 8, 2013, and even then, he did not appeal the circuit court’s January 11, 2013 order. Instead, as we explain later in this opinion, he appealed the circuit court’s response to his petition for a writ of mandamus that he filed with the Mississippi Supreme Court.

DISCUSSION

¶ 8. As noted, the judgment from which Randle attempted to appeal was rendered on January 11, 2013. Rather than filing a timely appeal, Randle filed a petition for a writ of mandamus with the Mississippi Supreme Court on May 31, 2013, seeking an order compelling the circuit court to rule on his PCR motion filed on November 29, 2012. After the circuit court’s response to the petition for a writ of mandamus on June 20, 2013, advising the supreme court that Randle’s PCR motion had been decided January 11, 2013, the supreme court dismissed Randle’s petition for a writ of mandamus as moot.

¶ 9. As stated, Randle filed the instant appeal on July 8, 2013. Interestingly, Randle’s notice of appeal states that he is appealing the circuit court’s order of June 20, 2013. As noted, on June 20, 2013, the circuit court filed a response to Randle’s petition for a writ of mandamus, not an order. Therefore, there is not an order on that date to appeal from. To the extent that Randle seeks to appeal from the order of the circuit court entered on January 11, 2013, it is obvious that he is much too late, as his notice of appeal was filed well beyond the thirty days permitted by Rule 4(a) of the Mississippi Rules of Appellate Procedure. He has not sought an out-of-time appeal, and one has not been granted. Accordingly, we find that this appeal must be dismissed for lack of jurisdiction.

¶ 10. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HOLMES COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.


author: BRYAN, Justice. MURDOCK, Justice PARKER, Justice SHAW, Justice

text:
    Ex parte ALABAMA EDUCATIONAL TELEVISION COMMISSION et al. (In re Allan Pizzato and Pauline Howland v. Alabama Educational Television Commission et al.)
    1111494.
    Supreme Court of Alabama.
    Sept. 27, 2013.
    As Modified on Denial of Rehearing Jan. 24, 2014.

      Albert L. Jordan, Matthew D. Fridy, and Susan E. McPherson of Wallace Jordan Ratliff & Brandt, LLC, Birmingham, for petitioners Alabama Educational Television Commission et al.; and Dwayne L. Brown of Law Office of Dwayne L. Brown, P.C., Montgomery, for petitioner Gregory 0. Griffin, Sr.
    J. Mark White, Augusta S. Dowd, U.W. Clemon, Andrew C. Allen, and Katherine R. Brown of White Arnold & Dowd, PC, Birmingham, for respondents.
   BRYAN, Justice.

The Alabama Educational Television Commission (“the Commission”) and Ferris W. Stephens, Rodney D. Herring, Les Barnett, J. Holland, Dannetta K. Thornton Owens, Bebe Williams, and Gregory 0. Griffin, Sr. (hereinafter collectively referred to as “the Commissioners”), have petitioned this Court for the writ of mandamus directing the Jefferson Circuit Court to dismiss claims brought against them by Allan Pizzato and Pauline How-land and to strike Pizzato and Howland’s second amended complaint. We grant the petition and issue the writ.

Facts and Procedural History

The purpose of the Commission is to “mak[e] the benefits of educational television available to and promot[e] its use by inhabitants of Alabama.” § 16-7-5, Ala. Code 1975. The Commission is composed of seven commissioners, one from each congressional district in Alabama. During the relevant period, Stephens served as chairman of the Commission.

From 2000 until June 2012, Pizzato served as the executive director of Alabama Public Television (“APT”) and How-land served as the deputy director and chief financial officer of APT. Sometime before June 2012, tension arose between Pizzato and the Commissioners. At its regular quarterly meeting on June 12, 2012, the Commission voted to go into executive session to discuss Pizzato’s “general reputation, character, and job performance.” After the Commission returned to its regular meeting from the executive session, Barnett moved to terminate Pizzato’s and Howland’s employment, stating that “the Commission had decided to move APT in a new direction.” The motion passed by a vote of five to two. The Commission then voted to hire Don Boomershine as interim executive director of APT. Although the Commission had voted to terminate her employment, Howland agreed to continue functioning in her position as deputy director and chief financial officer at APT until the end of July, at which time APT would submit its budget for the 2018 fiscal year.

On July 11, 2012, Pizzato requested certain materials from the Commission pursuant to the Open Records Act, § 36-12-40 et seq., Ala.Code 1975. On July 18, 2012, Pizzato sued the Commission and the Commissioners in their individual and official capacities, alleging violations of the Open Meetings Act, § 36-25A-1 et seq., Ala.Code 1975, and the Open Records Act and seeking compensatory and punitive damages. Pizzato also requested a judgment declaring that Stephens improperly held the office of assistant attorney general while he was serving as a commissioner.

The Commissioners moved the circuit court to dismiss Pizzato’s claims against them, arguing that Pizzato did not have standing to bring an Open Meetings Act claim, that the Open Meetings Act does not provide for the recovery of compensatory or punitive damages, and that the complaint failed to state a claim under the Open Meetings Act. The Commissioners also argued that Pizzato’s Open Records Act claim was moot because, they said, the requested documents had been produced and that the circuit court did not have subject-matter jurisdiction over the request for a declaratory judgment because, they asserted, the allegations supporting that count failed to state a claim upon which relief could be granted. The Commission likewise moved the circuit court to dismiss the claims against it, adopting the Commissioners’ arguments and adding an argument that, as a State agency, the Commission was immune from suit.

Pizzato amended his complaint on August 4, 2012. On August 6 and 7, the circuit court held a preliminary hearing on the claims in the amended complaint and heard oral argument on the motions to dismiss. On August 8, the circuit court granted the Commission’s and the Commissioners’ motions in part, dismissing the claims against the Commissioners in their individual capacities and all claims seeking compensatory and punitive damages. The circuit court denied the motions to dismiss to the extent that Pizzato sought the civil fines provided for in the Open Meetings Act, to the extent that Pizzato sought declaratory and/or injunctive relief against the Commission, and to the extent that Pizzato sought declaratory and/or injunc-tive relief against the Commissioners in their official capacities. The circuit court “reserve[d] its ruling” with regard to the Open Records Act claim and the request for a declaratory judgment as it related to Stephens.

On August 10, Pizzato filed a second amended complaint, adding Howland as a plaintiff and alleging an additional claim, pursuant to § 36-25A-7(b)(3), Ala.Code 1975, based on the alleged discussion of Howland during the executive session at the June 12 meeting. On August 13, the Commission and the Commissioners moved the circuit court' to certify three questions for an immediate permissive appeal: (1) whether § 36-25A-9(a), Ala.Code 1975, gave Pizzato and Howland standing to bring their claims; (2) whether § 36-25A-7(a)(l), Ala.Code 1975, prohibits the discussion in an executive session of the Commissioners’ personal knowledge regarding the job performance of certain employees; and (3) whether the Commission, as a State agency, was immune from suit for declaratory or injunctive relief. The Commission and the Commissioners moved to stay the proceedings in the circuit court pending the interlocutory appeal. The Commission and the Commissioners also moved the circuit court to strike thq second amended complaint and to amend or reconsider its order denying in part their motions to dismiss. The Commission and the Commissioners argued that Pizzato and Howland had not complied with Rule 15(a), Ala. R. Civ. P., in filing the second amended complaint and that the Commission and the Commissioners would be prejudiced if the second amended complaint were allowed to be considered.

After a hearing, the circuit court denied the Commission and the Commissioners’ motions, including the motion for a permissive appeal under Rule 5, Ala. RApp. P. The Commission and the Commissioners then petitioned this Court for mandamus relief and moved for an emergency stay of the circuit court’s orders. After the mandamus petition had been filed, this Court granted the motion to stay and ordered that discovery and other proceedings be stayed pending further order of this Court. The Commission and the Commissioners supplemented their mandamus petition, adding a request that the circuit court be directed to strike the second amended complaint.

Analysis

“ ‘ “Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805 (Ala.2000).
“Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003) (emphasis added). “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). Under such a circumstance, the trial court has ‘no alternative but to dismiss the action.’ 740 So.2d at 1029.”

Ex parte Chemical Waste Mgmt., Inc., 929 So.2d 1007, 1010 (Ala.2005).

The Commission and the Commissioners argue that they have a clear legal right to have the Open Meetings Act claims against them dismissed and to have the second amended complaint stricken on the ground that “[t]he circuit court lacks jurisdiction over [those] claim[s] because Pizzato [and Howland] lack[ ] standing and § [36-25A-]9(a) of the [Open Meetings] Act cannot supply it.” Petition, at 11.

“A ruling on a motion to dismiss is reviewed without a presumption of correctness. This Court must accept the allegations of the complaint as true. Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail.”

Newman v. Savas, 878 So.2d 1147, 1148-49 (Ala.2003) (citations omitted).

Section 36-25A-9(a) provides, in pertinent part: “Enforcement of this chapter may be sought by civil action brought in the county where the governmental body’s primary office is located by ... any Alabama citizen.” The Commission and the Commissioners argue that although § 36-25A-9(a) allows for enforcement by “any Alabama citizen,” a plaintiff must still satisfy the three requirements for standing set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

In Lujan, the United States Supreme Court stated:

“Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural” or “hypothetical.” ’ Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be ‘fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.’ Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976). Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ”

504 U.S. at 560-61. (citations omitted).

This Court has adopted the Lujan test as the means of determining standing in Alabama. See Ex parte King, 50 So.3d 1056, 1059 (Ala.2010) (“Traditionally, Alabama courts have focused primarily on the injury claimed by the aggrieved party to determine whether that party has standing; however, in 2003 this Court adopted the following, more precise, rule regarding standing based upon the test used by the Supreme Court of the United States: ‘A party establishes standing to bring a ... challenge ... when it demonstrates the existence of (1) an actual, concrete and particularized “injury in fact” — “an invasion of a legally protected interest”; (2) a “causal connection between the injury and the conduct complained of’; and (3) a likelihood that the injury will be “redressed by a favorable decision.” ’ ” (quoting Alabama Alcoholic Beverage Control Bd. v. Henri-Duval Winery, L.L.C., 890 So.2d 70, 74 (Ala.2003), quoting in turn Lujan, 504 U.S. at 560-61). See also Muhammad v. Ford, 986 So.2d 1158, 1162 (Ala.2007) (stating that, “[i]n [Henri-Duval ], this Court adopted a more precise rule regarding standing articulated by the United States Supreme Court” in Lujan); Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d 1253, 1256 (Ala.2004) (stating that the Court in Henri-Duval had “effectively restated” the standard for standing, using the three-pronged test from Lujan).

Applying the Lujan test here, we conclude that Pizzato and Howland do not have standing to bring this action because they have failed to demonstrate “a likelihood that [their alleged] injury will be ‘redressed by a favorable decision.’ ” Henri-Duval, supra. Pizzato and How-land argue that they were injured by the Commission’s termination of their employment and that that “termination was the direct result and consequence of the Commissioners’ violation of the Open Meetings Act.” Pizzato and Howland’s brief, at 21. They also argue:

“Pizzato amended his complaint to seek the relief mandated by statute and by the Circuit Court. Pizzato is both a citizen and the former Executive Director of APT, and his termination resulted directly from a violation of the Open Meetings Act. As such, he has every right to demand the civil fines specified in Ala.Code § 36-25A-9(g)[] in addition to whatever other relief the Circuit Court deems appropriate.”

Pizzato and Howland’s brief, at 23.

In Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 186, 120 S.Ct. 693; 145 L.Ed.2d 610 (2000), the Supreme Court held that civil penalties can serve as redress for standing purposes “[t]o the extent that they encourage defendants to. discontinue current violations and deter them from committing future ones.” The Supreme Court distinguished Steel. Co. v. Citizens for a Better Environment, 523 U.S. 83, 106, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), stating:

“Steel Co. established that .citizen suitors lack standing to seek civil penalties for violations that have abated by the time of suit. We specifically noted in that case that there was no allegation in the complaint of any continuing or imminent violation, and that no basis for such an allegation appeared to exist.”

Friends of the Earth, 528 U.S. at 187 (citation omitted).

Here, the only specific relief Pizzato and Howland requested was the civil fines provided for in § 36-25A-9(g). Like the injury in Steel Co., however, the alleged injury here was caused by an alleged onetime violation of the Open Meetings Act that was wholly past when Pizzato and Howland’s action was filed. Pizzato and Howland have not alleged any “continuing or imminent violation,” nor does any “basis for such an allegation appear to exist.” Friends of the Earth, 528 U.S. at 187. Thus, as in Steel Co., Pizzato and How-land’s request for civil fines “seeks not remediation of [their] injury ... but vindication of the rule of law.” Steel Co., 523 U.S. at 106. In fact, Pizzato and Howland argue:

“To argue as [the Commission and the Commissioners] have argued that Pizza-to has suffered no redressable injury is to argue that there is no public policy interest or value to an injured party in seeing wrongdoers held accountable for failing to follow the law. Hearing such an argument advanced by [the Commission and the Commissioners] is offensive to those who believe their government can — and should — do better. This callous and nonchalant attitude towards a clear violation of the law is indicative of the very reason this action must be maintained. Even if such a judgment will not make Pizzato whole, the value of enforcing the law cannot be viewed through the narrow lens of costs and benefits to those wronged by the violation. The significance and value of requiring Commissioners to comply with the Open Meetings Act includes the significance and value to Pizzato, but encompasses the general public as well. The fact that such value evades easy quantification by [the Commission and the Commissioners] does not diminish its importance.”

Pizzato and Howland’s brief, at 23-24. Fines sought for such purposes do not satisfy the redressability prong of the Lujan test. See Steel Co., 523 U.S. at 107 (“Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court; that is the very essence of the redressability requirement.”). Thus, Pizzato and Howland have failed to establish standing under the Lujan test for their claims against the Commission and the Commissioners.

Conclusion

Because Pizzato and Howland have not established standing to bring their action against the Commission and the Commissioners under the Open Meetings Act, the claims asserted in both the first amended and second amended complaints are due to be dismissed. Our decision in this regard pretermits consideration of the remaining arguments raised in the mandamus petition. Therefore, we grant the petition for mandamus relief and issue the writ, instructing the circuit court to dismiss Pizza-, to’s and Howland’s claims against the Commission and the Commissioners.

PETITION GRANTED; WRIT ISSUED.

STUART and WISE, JJ., concur.

MURDOCK, J., concurs specially.

BOLIN, J., concurs in the result.

PARKER, SHAW, and MAIN, JJ., dissent.

MOORE, C.J., recuses himself.

MURDOCK, Justice

(concurring specially, as substituted on denial of application for rehearing on January 24, 2013).

I have struggled mightily to reason my way past the redressability barrier cited in the main opinion. Having failed in that endeavor, I am compelled to concur.

The redressability barrier before us is, as the main opinion indicates, the same redressability barrier that has been referred to by the United States Supreme Court as part of “the irreducible constitutional minimum of standing”:

“The ‘irreducible constitutional minimum of standing contains three requirements. Lujan v. Defenders of Wildlife, [504 U.S. 555] at 560 [ (1992) ]. First and foremost, there must be alleged (and ultimately proved) an ‘injury in fact’ — a harm suffered by the plaintiff that is ‘concrete’ and ‘actual or imminent, not “conjectural” or “hypothetical.” ’ Whitmore v. Arkansas, [495 U.S. 149] at 155 (1990) ] (quoting Los Angeles v. Lyons, 461 U.S. 95, 101-102 (1983)). Second, there must be causation — a fairly traceable connection between the plaintiffs injury and the complained-of conduct of the defendant. Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976). And third, there must be redressability — a likelihood that the requested relief will redress the alleged injury. Id., at 45-46; see also Warth v. Seldin, 422 U.S. 490, 505 (1975). This triad of injury in fact, causation, and redressability constitutes the core of Article Ill’s ease-or-controversy requirement, and the party invoking federal jurisdiction bears the burden of establishing its existence. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990).”

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 102-03, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (footnote omitted).

Justice Scalia wrote for the majority in Steel that it was not necessary to decide “whether being deprived of information that is supposed to be disclosed” under the public-information law at issue there was “a concrete injury in fact that satisfies Article III ... because, [even] assuming injury in fact, the complaint fails the third test of standing, redressability.” 523 U.S. at 105. Similarly in the present case, we may assume for the sake of discussion that the plaintiffs have suffered a concrete injury and that there is a sufficient causal link between this injury and the Commissioners’ violation of the statute. See also note 9, infra. Nonetheless, given the absence of a claim for reinstatement, the plaintiffs are in no better position vis-a-vis the requirement of redressability than was the plaintiff in Steel, about whose claim the Supreme Court noted as follows:

“The complaint asks for (1) a declaratory judgment that petitioner violated EPCRA [Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq.]; (2) authorization to inspect periodically petitioner’s facility and records (with costs borne by petitioner); (3) an order requiring petitioner to provide respondent copies of all compliance reports submitted to the [Environmental Protection Agency]; (4) an order requiring petitioner to pay civil penalties of $25,000 per day for each violation of §§ 11022 and 11028; (5) an award of all respondent’s ‘costs, in connection with the investigation and prosecution of this matter, including reasonable attorney and expert witness fees, as authorized by Section 826(f) of [EP-CRA]’; and (6) any such further relief as the court deems appropriate. None of the specific items of relief sought, and none that we can envision as ‘appropriate’ under the general request, would serve to reimburse respondent for losses caused by the late reporting, or to eliminate any effects of that late reporting upon respondent.”

523 U.S. at 105-06 (emphasis added).

As Justice O’Connor stated in her special concurrence in Steel:

“I agree that our precedent supports the Court’s holding that respondent lacks Article III standing because its injuries cannot be redressed by a judgment that would, in effect, require only the payment of penalties to the United States Treasury.”

523 U.S. at 110 (O’Connor, J., concurring specially) (emphasis added). Likewise, the plaintiffs’ loss of their jobs in the present case “cannot be redressed by a judgment that would, in effect, require only the payment of penalties to the [Alabama] treasury.”

That said, I believe it is important to take note of what is not before us in this case. First, we do not have before us a claim by which a media organization or a citizen seeks to enjoin an anticipated future violation of the statute, or even one in which the circumstances attendant to multiple (or perhaps even one) prior violation supports an inference that such violations will continue in the future but might be deterred by the judicial declaration of one or more such prior offenses and punishment for the same. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185-86, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (holding that in an appropriate case civil penalties can “afford redress to citizen plaintiffs who are injured or threatened with injury as a consequence of ongoing unlawful conduct”); Steel, 523 U.S. at 110 (O’Connor, J., concurring specially) (“[H]ad respondent alleged a continuing or imminent violation of the Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA), 42 U.S.C. § 11046, the requested injunctive relief may well have redressed the asserted injury”). Compare also, e.g., Federal Election Comm’n v. Akins, 524 U.S. 11, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) (finding redressability requirement satisfied in a public-information case in which the plaintiffs sought, among other things, an injunction to require a public-interest organization to make public certain information required to be disclosed by the Federal Election Commission Act of 1971).

Nor is this a case brought as permitted by § 36-25A-9(a), Ala.Code 1975, by the attorney general or the district attorney, officials constitutionally imbued with standing to act on behalf of the public for whose benefit the law was intended.

And finally, although an argument can be made that we do have before us today a case in which the plaintiffs can draw a sufficient connection between a private meeting of a public body and some action of that body that has injured them so as to satisfy the injury and causation elements of standing, the case before us is not one in which the plaintiffs seek, to be relieved of their specific injury, i.e., to be reinstated to their former positions of employment. See generally § 36-25A-9(f), Ala.Code 1975 (providing that the court may under certain circumstances invalidate an action taken during a meeting held in violation of the Open Meetings Act).

Consequently, all the plaintiffs can achieve for themselves in the case that is before us is the psychological satisfaction of knowing that those who purportedly injured them have been forced to pay a fine to the State. I agree with the main opinion that this is not enough. As our Court of Civil Appeals explained recently in Alabama Department of Environmental Management v. Friends of Hurricane Greek, 114 So.3d 47, 54 (Ala.Civ.App.2012):

“Any ... injury done to [plaintiffs] resulting from the possible continued existence of turbid waters downstream from the developer’s Williamsburg development will thus not be remedied; rather, [the plaintiffs] will derive only the abstract satisfaction that a perceived wrongdoer such as the developer has received what might be viewed as ‘just desserts’ for environmental violations. Such ‘[rjelief that does not remedy the injury’ does not satisfy the-redressability element of standing. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).”

PARKER, Justice

(dissenting).

I agree with Justice Shaw: Imposing the test set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), on the Open Meetings Act, Ala.Code 1975, § 36-25A-1 et seq., would effectively neuter the Act.

SHAW, Justice

(dissenting).

I respectfully dissent. I am not convinced that the test for determining standing under federal law, set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), is applicable in this ease. The standing analysis in Lujan is closely tied to the “case or controversy” provision in Article III of the United States Constitution, which grants judicial power to the federal judiciary. Lujan, 504 U.S. at 560 (“[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.”). The source of the third prong of the Lujan analysis, redressability, upon which the main opinion turns, looks to whether a plaintiff has a personal stake in the litigation.

The Alabama Constitution does not have a “cases or controversy” provision, but we have followed a similar analysis:

“[S]tanding[ ] goes to whether a party has a sufficient ‘personal stake’ in the outcome and whether there is sufficient ‘adverseness’ that we can say there is a ‘case or controversy.’

“‘Standing goes to the existence of sufficient adversariness to satisfy both Article III case-or-controversy requirements and prudential concerns. In determining standing, the nature of the injury asserted is relevant to determine the existence of the required personal stake and concrete adverseness.’

“13A Federal Practice & Procedure § 3531.6.

“Although the Alabama Constitution does not have the same Article III language as is found in the Federal Constitution, this Court has held that Section 139(a) of the Alabama Constitution limits the judicial power of our courts to ‘cases and controversies’ and to ‘concrete controversies between adverse parties.’ As Justice Lyons has stated:

“‘Standing is properly limited to circumstances stemming from lack of justiciability. A plaintiff must be so situated that he or she will bring the requisite adverseness to the proceeding. A plaintiff must also have a direct stake in the outcome so as to prevent litigation, initiated by an interested bystander with an agenda, having an adverse impact on those whose rights are directly implicated. See Diamond v. Charles, 476 U.S. 54, 61-62, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986).
“ ‘Much of the precedent in the area of standing comes from federal courts subject to the case-or-controversy requirement of Article III of the United States Constitution. Of course, we do not have a case-or-controversy requirement in the Alabama
Constitution of 1901, but our concepts of justiciability are not substantially dissimilar. See Pharmacia Corp. v. Suggs, 932 So.2d 95 (Ala.2005), where this Court, after noting the absence of a case-or-controversy requirement in our Constitution, observed:
“ ‘ “We have construed Art. VI, § 139, Ala. Const, of 1901 (as amended by amend, no. 328, § 6.01, vesting the judicial power in the Unified Judicial System), to vest this Court ‘with a limited judicial power that entails the special competence to decide discrete cases and controversies involving particular parties and specific facts.’ Alabama Power Co. v. Citizens of Alabama, 740 So.2d 371, 381 (Ala.1999). See also Copeland v. Jefferson County, 284 Ala. 558, 226 So.2d 385 (1969) (courts decide only concrete controversies between adverse parties).” ’
“Hamm [v. Norfolk So. Ry.], 52 So.3d [484] at 500 [ (Ala.2010) ] (Lyons, J., concurring specially).”

Ex parte McKinney, 87 So.3d 502, 513 (Ala.2011) (Murdock, J., dissenting). The focus of Alabama law regarding standing, generally, is on whether the parties have a “sufficient personal stake in the outcome” in the case, whether their interests are sufficiently “adverse,” and whether the plaintiff is “so situated” that he or she will bring “the requisite adverseness” to the proceeding.

It is well settled that the legislature may provide for a cause of action and may supply subject-matter jurisdiction to the courts of this State. Ex parte Seymour, 946 So.2d 536, 538 (Ala.2006) (“The jurisdiction of Alabama courts is derived from the Alabama Constitution and the Alabama Code.”). Here, the legislature, through the Open Meetings Act, Ala.Code 1975, § 36-25A-1 et seq. (“the Act”), has provided a cause of action, has designated who may file the action, and has designated the remedies. Specifically, the Act provides, among other things, that certain meetings by certain governmental bodies must be open to the public. A “civil action” may be brought by “any Alabama citizen” to enforce the Act. Ala.Code 1975, § 36-25A-9(a) (“Enforcement of this chapter may be sought by civil action brought ... by ... any Alabama citizen.... ”). The trial court may provide relief in various forms, including the imposition of civil penalties. § 36-25A-9(g).

Pizzato and Howland allege in their complaint that certain members of the Alabama Educational Television Commission were motivated by personal, political, and religious views and that they made “threats” against Pizzato and others. They allege that Pizzato’s “general reputation, character, and job performance,” as well as Howland’s “job performance,” were discussed in a closed meeting in violation of the Act and that, immediately after the meeting, their employment was terminated. They seek the imposition of civil penalties under Aa.Code 1975, § 36-25A-9(g) — the only relief apparently available to them — for the commissioners’ alleged violation of the Act in a meeting where the apparent decision to terminate Pizzato’s and Howland’s employment was made. This action is not pursued by a disinterested third party or stranger to the incident, but rather by the parties who were allegedly wronged by a procedure that purportedly did not comply with Aabama law. It seems to me that the allegations in Pizzato and Howland’s complaint indicate that their interests are sufficiently “adverse” to those of the petitioners and that they are “so situated” that they bring “the requisite adverseness” to the proceeding. For all that appears, this fulfills the requirements of standing.

      . Howland was added ás a plaintiff in the second amended complaint filed on August 10, 2012.

      . “Executive session” is defined in the Open Meetings Act, § 36-25A-1 et seq., Ala.Code 1975, as "[t]hat portion of a meeting of a governmental body from which the public is excluded for one or more reasons prescribed in Section 36-25A-7(a)[, Ala.Code 1975].” § 36-25A-2(2), Ala.Code 1975.

      . Pizzato and Howland acknowledge that, sometime after the complaint was filed, the Commission and the Commissioners produced certain documents that had been requested under the Open Records Act. They go on to argue, however, that they "questionf ] whether [the Commission and the Commissioners] have fully complied" with the Open Records Act. Pizzato and Howland’s brief, at 6. Pizzato and Howland do not identify any records that should have been produced but, instead, suggest that there may be some records missing and that "[g]iven [the Commission’s and Commissioners’] flagrant violation of their responsibilities under the Open Records Act, Pizzato [and Howland] believe[] that but for the lawsuit, [the Commission and the Commissioners] would never have complied with their legal obligations.” Pizzato and Howland's brief, at 6-7.

      . Section 36-25A-9(g) provides, in pertinent part: "For each meeting proven to be held in violation of this chapter for one or more reasons, the court shall impose a civil penalty. The maximum penalty for each meeting shall not exceed one thousand dollars ($1,000) or one half of the defendant’s monthly salary for service on the governmental body, whichever is less.”

      . As noted, Pizzato and Howland also request "whatever other relief the Circuit Court deems appropriate.” Pizzato and Howland’s brief, at 23. We need not speculate as to other forms of relief that may or may not be available to Pizzato and Howland. See Allsopp v. Bolding, 86 So.3d 952, 960 (Ala.2011) ("This Court will not ‘create legal arguments for a party based on undelineated general propositions unsupported by authority or argument.' ” (quoting Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992))).

      . The terminology of the Alabama Constitution limiting jurisdiction to cases and controversies is not unlike the language of the United States Constitution upon which the so-called "case-or-controversy requirement” noted in Steel is based. Indeed, no clause of the United States Constitution groups the words "case or controversy” into a single phrase. Article III, § 2, of the United States Constitution provides that the judicial power "shall extend to all Cases, in Law and Equity, arising under the Constitution, the Laws of the United States, and Treaties made.” The terms "case” and "controversy” are dispersed throughout other clauses of Article III to grant judicial power as to specific subjects. Article VI, § 142 of the Alabama Constitution grants circuit courts power over "cases,” and § 140 of the same article provides this Court power over "cases and controversies as provided by this Constitution.” We have construed Article VI, § 139, Ala. Const. of 1901 (as amended by Amend. No. 328, § 6.01), to vest this Court "with a limited judicial power that entails the special competence to decide discrete cases and controversies involving particular parties and specific facts.” Alabama Power Co. v. Citizens of Alabama, 740 So.2d 371, 381 (Ala. 1999). See also Copeland v. Jefferson Cnty., 284 Ala. 558, 226 So.2d 385 (1969) (holding that our courts decide only "concrete controversies” between adverse parties).

      . The notion of concrete injury has in fact been applied more liberally in so-called "public-information” cases. See, e.g., Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 449, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) ("Our decisions interpreting the Freedom of Information Act have never suggested that those requesting information under it need show more than that they sought and were denied specific agency records.”).

      . I note that Steel does not involve a. governmental defendant. It does however, involve a suit to require a third party to fulfill an obligation that, whatever else may be said of it, clearly was intended by Congress as an obligation to disclose information for the benefit of the public at large. In that sense, it arguably can be considered a "public-law” case. In any event, in those relatively rare cases (like Steel) in which a legislature purports to create by statute a cause of action and to legislatively prescribe elements of the same in which are not embedded all three of the components of standing (a circumstance that to my knowledge is unknown to common-law causes of action and that is unknown to almost all statutorily created causes), it has attempted to give the court jurisdiction over something that it cannot, because that something is not a case or controversy. Such was the case in Steel and such is the case here, at least given the limited nature of the relief requested in this case. As the author of this Court’s recent opinion in Ex parte BAC Home Loans Servicing, LP, [Ms. 1110373, September 13, 2013] - So.3d - (Ala.2013), I must confess that the statements in BAC suggesting a limitation of standing to public-law cases involving governmental defendants would be better understood as statements of a general rule that admits of the aforesaid exception, but only in rare instances involving inadequately formed statutory causes of action as in Steel.

      . See Massachusetts v. E.P.A., 549 U.S. 497, 518, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007), citing with approval Sugar Cane Growers Cooperative of Fla. v. Veneman, 289 F.3d 89, 94—95 (C.A.D.C.2002), for the proposition that ‘‘[a litigant] who alleges a deprivation of a procedural protection to which he is entitled never has to prove that if he had received the procedure the substantive result would have been altered. All that is necessary is to show that the procedural step was connected to the substantive result.” As the Court in Lujan v. Defenders of Wildlife, 504 U.S. 555, 573 n. 7, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), noted, ”[t]here is this much truth to the assertion that 'procedural rights' are special: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy. Thus, under our case law, one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency’s failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years.” Nonetheless, there must at least be some likelihood that the relief sought will prevent, undo, or compensate the plaintiff for a threatened or past violation of rights or other injury that provides the basis for standing.

      . But see § 36-25A-9(f) (stating that an action taken at an open meeting conducted in accordance with the Act shall not be invalidated because of a violation that occurred prior to such meeting). The plaintiffs argue in this case that the decision to terminate their employment actually occurred in the noncompliant meeting of which they complain. The issues surrounding that assertion, however, are issues of the plaintiffs' ability to allege, or prove, a cause of action (as to which neither I nor this Court expresses any view today), not an issue of standing. See, e.g., Ex parte BAC Home Loans Servicing, LP, [Ms. 1110373, September 13, 2013] — So.3d -(Ala. 2013).

      . Our previous decisions applying Lujan that are cited in the main opinion involve general challenges to whether certain elections or legislative acts were constitutional. See Ex parte King, 50 So.3d 1056, 1059 (2010) (holding that there was "no injury” under Lujan to the plaintiffs in an action challenging the propriety and constitutionality of an election occurring over 100 years before the suit was filed); Muhammad v. Ford, 986 So.2d 1158, 1162 (Ala.2007) (holding in a case challenging the constitutionality of a constitutional amendment providing for "bingo” gaming that there was no actual, concrete, and particularized injury where the plaintiffs alleged that they were injured because they were denied the opportunity to live in a county in which a valid law on bingo-game operations existed); Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d 1253, 1256 (Ala.2004) (holding that an elector presenting a constitutional challenge to an election legalizing the sale of alcohol had failed to show a particularized injury); and Alabama Alcoholic Beverage Control Bd. v. Henri-Duval Winery, L.L.C., 890 So.2d 70, 74 (Ala.2003) (holding that there was no injury where the plaintiff challenged the constitutionality of, and sought a refund for, a tax that it was not required to pay). I believe that in such general challenges to government action, the Lujan analysis is helpful. In the instant case, however, we do not have a general constitutional challenge. Instead, we have a very specific cause of action provided by Alabama law, which provides a very limited form of relief. Further, we have not strictly followed the three Lujan factors. See, e.g., Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111 (Ala.2003) (holding that a plaintiff who suffered no damage had standing despite Lujan, because she had suffered a "legal wrong” and an "invasion of a legally protected interest”).


author: THOMAS, Judge.

text:
    CITY OF PRATTVILLE v. S & M CONCRETE, LLC, and Bobby Steve Carter II.
    2120271.
    Court of Civil Appeals of Alabama.
    Sept. 13, 2013.
    Rehearing Denied Nov. 1, 2013.
    Certiorari Quashed March 14, 2014 Aabama Supreme Court 1130188.

      David A. McDowell of McDowell, Faulk & McDowell, LLC, Prattville, for appellant.
    Chip Cleveland of Cleveland & Riddle, LLC, Attorneys at Law, Prattville, for ap-pellees.
   THOMAS, Judge.

The City of Prattville (“the City”) appeals from a judgment of the Autauga Circuit Court (“the circuit court”) in favor of S & M Concrete, LLC (“the business”), and Bobby Steve Carter II. Carter is the owner of property located within the City (“the property”); he is also the sole owner of the business. The record indicates the following relevant facts and procedural history. Carter applied for a building permit to build a structure on the property sometime in 2006; the City issued the permit on December 18, 2006. In January 2008, Carter applied to the City for a business license for the business and listed the property as the business’s address. The City ultimately denied the business-license application, stating that the property was zoned “R-3” (single-family residential).

On January 16, 2009, Carter filed an application with the City Planning Commission (“the planning commission”) to rezone the property from “R-3” to “B-2” (general business). After a public hearing on May 21, 2009, the planning commission voted to not recommend the zoning change to the city council. The city council held a public hearing regarding the requested zoning change on July 7, 2009, after which it unanimously voted to deny the zoning change. On July 8, 2009, the City sent Carter a letter stating that the business had until July 30, 2009, to relocate. Carter and the business filed an appeal from the city council’s decision in circuit court on July 21, 2009. In the appeal, Carter and the business requested that the circuit court grant a temporary restraining order (“TRO”) and a preliminary injunction, pursuant to Rule 65, Ala. R. Civ. P., and they sought permanent injunctive relief. The circuit court issued a TRO on July 21, 2009. After a hearing, the circuit'court issued a preliminary injunction on July 28, 2009, ordering the City to issue a business license for the business and to allow the business to continue to operate on the property.

After filing the appeal in the circuit court, Carter submitted a variance request to the Prattville Board of Zoning Adjustment (“the BZA”). After a hearing, the BZA denied the variance request on September 8, 2009. On September 25, 2009, Carter and the business amended the appeal in the circuit court to include an appeal from the denial of the variance request and to seek declaratory relief pursuant to § 6-6-220 et seq., Ala.Code 1975. Carter and the business filed a motion for a default judgment as to the requested declaratory relief on October 23, 2009; the City responded to the amended appeal on October 29, 2009. The motion for a default judgment was denied on November 3, 2009.

After a lengthy period of discovery, the City filed a motion for a summary judgment on June 3, 2011. Carter and the business filed a motion to strike the City’s motion for a summary judgment on June 8, 2011, alleging that the motion for a summary judgment was untimely pursuant to Rule 56(c)(2), Ala. R. Civ. P., and the circuit court’s scheduling order. The first day of trial was held on June 14, 2011, at which the circuit court heard evidence ore tenus. The circuit court granted Carter and the business’s motion to strike and denied the City’s motion for a summary judgment by entry directly into the State Judicial Information System (“SJIS”) on June 14, 2011. Testimony was not completed on June 14, 2011; therefore, the case was next called on January 25, 2012. The City filed a motion for a “directed verdict” on that same day. The last day of trial was held on May 1, 2012; the record indicates that the circuit court also denied the motion for a “directed verdict” on May 1, 2012.

The circuit court entered a final judgment in favor of Carter and the business on July 27, 2012. In its judgment, the circuit court judicially rezoned the property “B-2” and granted the requested in-junctive and declaratory relief. The City filed a motion to alter, amend, or vacate the judgment on August 27, 2012; Carter and the business responded on November 7, 2012. The circuit court denied the motion to alter, amend, or vacate on November 13, 2012. The City filed a timely appeal with our supreme court on December 17, 2012; the appeal was then transferred to this court pursuant to § 12-2-7(6), Ala.Code 1975.

In its brief on appeal, the City raises several issues that may be summarized as whether the circuit court erred in granting the requested relief because, it says, Carter and the business failed to prove that the City acted in an arbitrary and capricious manner in denying the request to change the zoning classification of the property. The City also argues that the circuit court did not have jurisdiction over the appeal from the BZA’s decision because that appeal had been untimely filed.

Because the circuit court heard evidence ore tenus, “ ‘a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.’ ” Pollard v. Unus Props., LLC, 902 So.2d 18, 23 (Ala.2004)(quoting American Petroleum Equip. & Constr., Inc. v. Fancher, 708 So.2d 129, 132 (Ala.1997)). However, “ ‘[wjhen the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment. In addition, the ore tenus presumption of correctness has no application to a trial court’s conclusions on questions of law.’” Id.

Both parties argue that the circuit court’s review of the City’s denial of the request to change the zoning classification of the property is governed by the fairly debatable standard. Our supreme court has stated:

‘“When a municipal body acts either to adopt or to amend a zoning ordinance, it acts in a legislative capacity and the scope of judicial review of such action is quite restricted. The restricted role in reviewing the validity of a zoning ordinance or regulation has been stated as follows:
“ ‘ “Zoning is a legislative matter, and, as a general proposition, the exercise of the zoning power should not be subjected to judicial interference unless clearly necessary. In enacting or amending zoning legislation, the local authorities are vested with broad discretion, and, in cases where the validity of a zoning ordinance is fairly debatable, the court cannot substitute its judgment for that of the legislative authority. If there is a rational and justifiable basis for the enactment and it does not violate any state statute or positive constitutional guaranty, the wisdom of the zoning regulation is a matter exclusively for legislative determination.
“ ‘ “In accordance with these principles, it has been stated that the courts should not interfere with the exercise of the zoning power and hold a zoning enactment invalid, unless the enactment, in whole or in relation to any particular property, is shown to be clearly arbitrary, capricious, or unreasonable, having no substantial relation to the public health, safety, or welfare, or ... plainly contrary to the zoning laws.” ’
“[Homewood Citizens Ass’n. v. City of Homewood,] 548 So.2d [142,] 143 [ (Ala.1989) ] (quoting 82 Am.Jur.2d Zoning and Planning § 338 (1976) (citations omitted)).”

Pollard, 902 So.2d at 24 (footnote omitted). Moreover, “the Court in Homewood Citizens Association further stated: ‘The burden is upon the party seeking relief from an ordinance to show that the ordinance was not a fairly debatable issue before the municipal governing body.’ 548 So.2d at 144.” Id. at 25 n. 9.

The circuit court made the following findings in its final judgment:

“1. That the Appeal is accepted, jurisdiction assumed.
“2. That the [City] was improper in failing to change the requested zoning to B-2 of the Prattville Zoning Ordinance. “3. That the [City] had improperly changed the zoning and was completely unable to present testimony that the subject property was not B-2, as the [City] could not advise this Court as to the zoning assigned as this area was originally annex[ed], or the history of the changes in the area.
“4. That the predecessor in title to [Carter], maintained the property as a business location, with a gravel pit and further utilized the same with a mobile home located thereon.”

We first address the circuit court’s finding that Carter’s predecessor in title had used the property at one time as a business location, which could indicate that Carter had the right to continue the nonconforming use of the property. The definitions section of the City’s zoning ordinance defines a nonconforming use as “[a] use of any structure or land which, though originally lawful, does not conform with the provisions of this ordinance or any subsequent amendments thereto for the district in which it is located.” Section 4 of the City’s zoning ordinance, in pertinent part, further explains:

“(B) Any use or structure existing at the time of enactment or of subsequent amendment to this ordinance, but not in conformity with its provisions, may be continued with the following limitations: Any use or structure which does not conform to the provisions of this ordinance, except with the written approval of the Board of Zoning Adjustment, shall not be:
“(a) Chained [sic] to another nonconforming use.[]
“(b) Re-established after discontinue [sic] for one (1) year.
“(c) Rebuilt after fire or storm loss, exceeding its value, above foundation, at the time of loss.”

According to Carter, his father used the property as a gravel pit or a dirt pit (hereinafter referred to as “the gravel pit”) from sometime in the early 1980s until sometime in 1993 or 1994; testimony at the trial revealed that Carter’s mother was awarded the property when she and Carter’s father divorced in 1993. In Mousseau v. City of Daphne Board of Zoning Adjustments, 6 So.3d 544, 550 (Ala.Civ. App.2008), this court, quoting 8A Eugene McQuillin, The Law of Municipal Corporations § 25.188.50 at 67-69 (3d ed. rev. 2003), stated:

“ ‘A nonconforming use will not be recognized in the absence of sufficient competent evidence to prove it was lawfully in existence at the time the ordinance was enacted and that it has con-tinned in existence. The burden of proof is upon the party asserting a right to a nonconforming use to establish the lawful and continued existence of the use at the date of the enactment of zoning laws pertaining to it.’ ”

(Emphasis added.)

Although he was not abundantly clear as to the dates, Carter testified that he resided in a manufactured home located on the property between 1994 and 2000. Carter stated that, during the time he resided on the property, it was still being used as a gravel pit; however, he could not remember anyone removing dirt or gravel from the property during that period. At trial, the City repeatedly asked Carter to approximate the year in which the property ceased to be used as a commercial gravel pit. Carter would not directly answer the City’s question, instead responding that he “didn’t know” or “[couldn’t] answer that” or that “it was a long time ago.” For example, in response to the City’s inquiry as to whether the property “[w]as ... commercially being used as a dirt pit” while Carter was living on the property, Carter stated: “I can’t — I wasn’t there every day, so I don’t know. I mean, I didn’t sit out there by the road with, a chair and watch for trucks coming in and out.” The circuit court stated that, based on its having presided over Carter’s parents’ divorce in 1993, it was “relatively sure Mrs. Carter didn’t let Mr. Carter come use the [gravel] pit after the divorce.”

Carter’s testimony is not sufficient evidence to support the conclusion that the property continued to be used as a gravel pit while he resided on the property. Instead, we conclude that Carter failed to prove that the nonconforming use of the property, which was established before the zoning ordinance was enacted in 1987, had continued after his mother became the owner of the property in 1993. Thus, because there is no evidence indicating that the nonconforming use continued after 1993, we conclude that the nonconforming use of the property had been discontinued for at least one year, and, therefore, no nonconforming use could be established on the property without first seeking a variance from the BZA.

We further conclude that the record contains credible evidence indicating that the City did not act in an arbitrary and capricious manner by denying Carter’s request to change the zoning classification of the property. Carter purchased the property from his mother on November 6, 2006; he applied for the building permit on December 8, 2006. As required by the City, Carter submitted a building plan, which was labeled “office layout,” with the building-permit application. ' Carter and the business seem to argue that, because the City granted the building permit, the City was on notice of, and consequently approved, the use of the property for solely commercial purposes. We disagree that a city employee’s approval of the building plan in any way culminated in the City’s approval of the use of the property in a manner inconsistent with the zoning ordinance. This is further substantiated by the fact that the City, which had in previous years issued a business license for the business, denied Carter’s application for a business license after it was notified that the business had been relocated to the property.

In Fort Morgan Civic Association, Inc. v. Baldwin County Commission, 890 So.2d 139, 145 (Ala.Civ.App.2003), this court stated:

“The standard of review in rezoning cases is ‘whether the reclassification is sound and fair. If it is fairly debatable as to whether the reclassification is sound and fair, the Court will not substitute its judgment for that of the [local government].’ [City of Tuscaloosa v. Bryan, 505 So.2d 330, 337 (Ala.1987)]. The ‘fairly debatable’ rule was discussed in American Petroleum Equipment & Construction, Inc. v. Fancher, 708 So.2d 129 (Ala.1997). Our supreme court determined that ‘ “ ‘[i]f the application of a zoning classification to a specific parcel of property is reasonably subject to disagreement, that is, if its application is fairly debatable, then the application of the ordinance by the zoning authority should not be disturbed by the courts.’ ” ’ 708 So.2d at 131 (quoting Byrd Cos. v. Jefferson County, 445 So.2d 239, 247 (Ala.1983), quoting in turn Davis v. Sails, 318 So.2d 214, 217 (Fla. Dist.Ct.App.1975)).”

We find further guidance regarding the applicability of the “fairly debatable” rule in American Petroleum Equipment & Construction, Inc. v. Fancher, 708 So.2d 129, 132 (Ala.1997).

“Because the adoption of an ordinance is a legislative function, the courts must apply a highly deferential standard in
zoning cases. City of Mobile v. Karagan, 476 So.2d 60, 63 (Ala.1985). This Court has said:
“ ‘ “[I]f the adoption of the ordinance raises questions upon which reasonable differences may exist in view of all the circumstances, and the wisdom of the ordinance is fairly debatable, then the action of a municipal governing body in adopting the ordinance will not be deemed arbitrary, a court being unwilling under such circumstances to substitute its judgment for that of the municipal governing body acting in a legislative capacity. Leary v. Adams, 226 Ala. 472, [147] So. 391 [ (1933) ]; Episcopal Foundation of Jefferson County v. Williams, [281 Ala. 363, 202 So.2d 726 (1967) ].” ’
“City of Birmingham v. Norris, supra, 374 So.2d [854,] 856 [ (Ala.1979) ] (quoting Waters v. City of Birmingham, 282 Ala. 104, 209 So.2d 388 (1968)).”

We also find Byrd Cos. v. Jefferson County, 445 So.2d 239 (Ala.1983), instructive in the present case. In Byrd, property owners submitted a request to the Jefferson County Commission to rezone the property at issue from residential to commercial. Id. at 243. Similar to the present case, the property owners in Byrd did not argue that the property could not be used for residential purposes but instead argued that it was cost-prohibitive to construct a residence. Id. at 242. The Jefferson County Commission denied the rezoning request. Id. at 243. Our supreme court, in affirming the trial court’s judgment, noted with approval the words of the trial court:

‘“[T]he Court does not mean to imply that the proposed development would have a negative impact on any of the elements enumerated above[;] ... however, since the Court believes the decision of the County Commission did bear a relationship to the police power, and that its decision satisfied the “fairly debatable” test, the Court does not need to go further.’ ”

Id,

In the present case, both the planning commission and the city council held public hearings regarding Carter’s request to rezone the property. At both meetings, individuals who lived on the same street as the property spoke in opposition to the rezoning request. Three neighboring residents each testified at trial that he or she had moved to that area because of the residential qualities of the area and that each of them opposed rezoning the property.

We note that the circuit court did not find that the City had acted arbitrarily or capriciously in denying Carter’s rezoning request. Rather, the circuit court’s judgment is based upon its belief that the City had improperly changed the zoning of the property and, also, that Carter’s predecessor in title had used the property as a business location. We cannot agree that the City failed to present the circuit court with evidence of the property’s zoning history, including evidence that the property was not zoned “B-2.” Joel Duke, the city planner, testified that the property was zoned “R-3” at least since 1987, if not before.

“[Carter and the business’s attorney:] So I — thought you, said in '87 it became R-3?
“[Duke:] Make sure I’m clear on that. It was — it had been R-3 prior to that. The last time that I know that there is a chance that it might have been changed or could have been changed would have been 1987 when a map was adopted for the entire city. It remained R-3. City records are not sufficient for me to determine exactly when it became R-3 the first time. But a comprehensive rezoning of the property and the whole city was done where a new map was adopted for the entire city in 1987.”

Furthermore, Carter and the business did not assert at trial, nor do they assert on appeal, that the property was ever zoned “B-2.”

We conclude that it is evident from the record that the decision of the City to deny Carter and the business’s request to rezone the property satisfied the “fairly debatable” test. We also conclude that the City’s action was not “ ‘ “arbitrary, capricious, or unreasonable, having no substantial relation to the public health, safety, or welfare.” ’ ” Pollard, 902 So.2d at 24.

We now address the City’s argument the circuit court lacked jurisdiction over the appeal from the BZA’s denial of the variance request because that appeal was untimely. Section 11-52-81, Ala.Code 1975, states:

“Any party aggrieved by any final judgment or decision of such board of zoning adjustment may within 15 days thereafter appeal therefrom to the circuit court by filing with such board a written notice of appeal specifying the judgment or decision from which the appeal is taken.”

The BZA denied Carter’s request for a variance on September 8, 2009. Carter and the business amended the appeal to the circuit court to include an appeal from the BZA’s decision on September 25,. 2009, more than 15 days after the request was denied. Carter and the business argue that the appeal from the BZA’s decision is timely based on the relation-back doctrine espoused in Rule 15(c), Ala. R. Civ. P. However, we have held that,

“since the right to appeal in zoning board cases did not exist at common law, the 15-day time limit for appealing a board’s decision is jurisdictional in nature rather than procedural. Lindsey v. Board of Adjustment, 358 So.2d 469 (Ala.Civ.App.1978). Therefore, compliance with this time period within which appeals must be filed is a condition precedent to the right to maintain an appeal to the circuit court. Lindsey, supra. Furthermore, since this provision is jurisdictional, this court cannot alter or enlarge that period by resorting to the Alabama Rules of Civil Procedure. Lindsey, supra.

Board of Adjustment of Town of Midland City v. Evans, 577 So.2d 471, 472 (Ala.Civ.App.1990).

Because the time provision of § 11-52-81 is jurisdictional, and because this court is not at liberty to alter or enlarge that period by resorting to the Alabama Rules of Civil Procedure, we cannot conclude that Carter and the business’s attempt to “relate back” under Rule 15(c) extended the time to appeal from the BZA’s decision. Because Carter and the business did not comply with the statutory requirements of § 11-52-81, the circuit court did not have jurisdiction to entertain the appeal from the BZA’s decision.

Based on the foregoing, we conclude that the circuit court erred by entering a judgment in favor of Carter and the business. We, therefore, reverse the judgment of the circuit court, and we remand the cause for the circuit court to enter a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

      . The City had previously issued a business license for the business; however, January 2008 was the first time that the property was listed on a business-license application as the business’s address.

      . Although the City moved for a “directed verdict," we recognize that that motion is properly characterized as a motion for a judgment on partial findings pursuant to Rule 52(c), Ala. R. Civ. P. See Lawson v. Harris Culinary Enters., LLC, 83 So.3d 483, 490 n. 7 (Ala.2011).

      . The record indicates that the case was immediately reset for May 1, 2012, due to “technical difficulties.”

      . We note that comparable zoning ordinances of other municipalities located in Alabama provide that a nonconforming use may not be “changed to another nonconforming use.” (Emphasis added.)

      . We find no evidence in the record indicating that a business license was ever issued for a business located on the property. However, the City does not appear to dispute that the property was used as a commercial gravel pit before 1987, when the City’s zoning ordinance was enacted.

      . We note that this argument is, in effect, an equitable-estoppel argument. However,
      ‘‘[our supreme c]ourt has held that ‘[t]he doctrine of equitable estoppel, as a general rule, is not applicable to the state, to municipal subdivisions, or to state-created agencies,’ because ‘ “[pjersons dealing with agencies of government are presumed to know the legal limitations upon their power and cannot plead estoppel on the theory that they have been misled as to the extent of that power.” ’ Marsh v. Binningham Board of Education, 349 So.2d 34, 36 (Ala.1977), quoting City of Birmingham v. Lee, 254 Ala. 237, 247, 48 So.2d 47, 55-56 (1950).”

        Ex parte City of Jacksonville, 693 So.2d 465, 467 (Ala.1996).

      . Duke also testified that, at some point, the City purported to pass an ordinance rezoning the area in which the property is situated from "R-3” to a different residential classification that allowed manufactured homes. However, Duke further explained that he and the city attorney, while researching the history of the property in preparation for this action, discovered that the notice requirements promulgated in § 11-52-77(2), Ala. Code 1975, were not followed when that ordinance rezoning the property was passed. Therefore, because that ordinance purporting to change the zoning classification was invalid, see Town of Stevenson v. Selby, 839 So.2d 647, 649 (Ala.Civ.App.2001), a decision was made by Duke and the city attorney that the last proper zoning classification for the property was "R-3.” We conclude that, because either zoning classification was for residential use, not commercial use, the purported change does not affect our analysis of this issue.