author: STUART, Justice. MOORE, Chief Justice

text:
    Ex parte George BLANKENSHIP. (In re George Blankenship v. State of Alabama).
    1120403.
    Supreme Court of Alabama.
    March 8, 2013.
    George Blankenship, pro se.
    Submitted on petitioner’s brief only.
   STUART, Justice.

WRIT DENIED. NO OPINION.

BOLIN, PARKER, MURDOCK, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., dissents.

MOORE, Chief Justice

(dissenting).

In 1981, George Blankenship pleaded guilty to first-degree robbery under the then newly enacted Alabama Criminal Code, which was effective January 1, 1980. He was sentenced to life imprisonment, and he did not appeal. He now seeks postconviction relief, arguing that the charged conduct occurred prior to January 1, 1980, and that, therefore, he pleaded guilty to a statutory offense that did not exist when he committed it. The trial court summarily dismissed his petition, and the Court of Criminal Appeals affirmed the dismissal in an unpublished memorandum.

Under the facts alleged in Blankenship’s petition for certiorari review, the circuit court did not have jurisdiction to convict and to sentence Blankenship under the Aabama Criminal Code because, he argues, the offense was committed before that Code took effect. Therefore, he argues, both the conviction and the sentence are nullities, and he is entitled to relief under Rule 32, Aa. R.Crim. P. Therefore, I would grant the petition for the writ of certiorari to consider the merits of Blankenship’s claims.

The Court of Criminal Appeals construed Blankenship’s Rule 32 petition as a challenge to the validity of his indictment, which charged the elements of statutory robbery and not common-law robbery. Before 2006, errors in an indictment were considered to be jurisdictional defects that could be raised at any time. See, e.g., Ex parte Lewis, 811 So.2d 485, 487 (Ma.2001) (“Failure to allege an essential element of the charged offense is a jurisdictional defect, and the failure to raise the defect at trial or on direct appeal does not constitute a waiver.”). In 2006, however, this Court, in Ex parte Seymour, 946 So.2d 536 (Aa. 2006), reversed course and held that defects in an indictment do not implicate the jurisdiction of the court. “Under our holding in Seymour, a defect in a criminal indictment no longer deprives the trial court of jurisdiction, as it had under the common law, but instead is a nonjurisdic-tional error that may be waived.” Ex parte Jenkins, 992 So.2d 1248, 1250 (Ala.2007). This Court also noted in Ex parte Batey, 958 So.2d 339, 342 n. 2 (Ala.2006), that, “[i]n Seymour, we held that a defective indictment does not deprive the trial court of jurisdiction to hear the case, and that, therefore, a claim that an indictment is defective is not exempt from the Rule 32 bar.”

Blankenship argues, however, that charging him under the law that was not yet in effect when the offense was committed was not a mere error in the indictment but, instead, was a transgression of an express legislative limit on the circuit court’s power. The temporal applicability section of the Alabama Criminal Code provides: “The provisions of this title do not apply to or govern the construction of and punishment for any offense committed pri- or to 12:01 A.M. January 1, 1980.... Such an offense must be construed and punished according to the provisions of law existing at the time of the commission thereof....” § 13A-l-7(c), Ala.Code 1975 (emphasis added).

This Court in Seymour stated:

“Subject-matter jurisdiction concerns a court’s power to decide certain types of cases.... That power is derived from the Alabama Constitution and the Alabama Code....
“Under the Alabama Constitution, a circuit court ‘shall exercise general jurisdiction in all cases except as may be otherwise provided by law.’ Amend. No. 328, § 6.04(b), Ala. Const.1901.”

946 So.2d at 538 (final emphasis added). Section 13A-l-7(c) is just such a specific legislative exception to the jurisdiction of the circuit court. See Smith v. State, 446 So.2d 68, 72 (Ala.Crim.App.1984) (noting that in an earlier ease “the actual offense occurred prior to [January 1, 1980,] and [the defendant] was therefore tried under the common law as required by the criminal code ” and citing Ala.Code 1975, § 13A-1-7(e) (emphasis added)).

If Blankenship is correct that the conduct for which he was punished occurred before January 1, 1980, the circuit court was without power to convict him and to sentence him under the Alabama Criminal Code. Therefore, I respectfully dissent from the denial of his petition for a writ of certiorari.

      . A defendant convicted of a criminal offense may seek relief on the ground that the trial court "was without jurisdiction to render judgment or to impose sentence.” Rule 32.1(b), Ala. R.Crim. P. Failure to raise the issue of jurisdiction at trial or on appeal does not preclude relief. Rules 32.2(3) and (5), Ala. R.Crim. P.


source: Caselaw Access Project

author: BRYAN, Justice.

license: Public Domain

text:
    FIRST COMMERCIAL BANK OF HUNTSVILLE v. Henry Moore NOWLIN III et al.
    1110910.
    Supreme Court of Alabama.
    March 15, 2013.

      Michael L. Fees, Allen L. Anderson, Stacy L. Moon, and Ryan G. Blount of Fees & Burgess, P.C., Huntsville, for appellant.
    Joseph E. Stott of Scott, Sullivan, Streetman & Fox, P.C., Birmingham, for appellee Henry Moore Nowlin III, Douglas Ray Bachuss, Jr., and Nowlin & Associates, LLC.
    Jesse P. Evans III and Michael B. Odom of Haskell Slaughter Young & Re-diker, LLC, Birmingham, for appellee First American Title Insurance Company.
   BRYAN, Justice.

First Commercial Bank of Huntsville (“the Bank”) appeals from a summary judgment in favor of various defendants on claims alleged by the Bank against those defendants. Because the summary judgment did not resolve all claims against all parties and because no part of the summary judgment was certified as final pursuant to Rule 54(b), Ala. R. Civ. P., the appeal is due to be dismissed as being from a nonfinal judgment.

The evidence below reveals the following facts. Quincy Wiggins applied to the Bank for a second-mortgage loan to finance the purchase of certain real property in Decatur. According to the Bank, Wiggins represented to the Bank that the purchase of the property would be further financed by a first-mortgage loan from First Franklin Financial Corporation (“FFF”) in the amount of $472,500. The property was appraised at a value of $730,000. The Bank approved the loan to Wiggins in the amount of $202,500. Henry Moore Nowlin III, Douglas Ray Bachuss, Jr., Nowlin & Associates, LLC, and First American Title Insurance Company (“FATIC”) participated in various capacities in closing the loan. The Bank and Wiggins closed the loan in April 2007.

In September 2008, the Bank refinanced Wiggins’s loan. The refinanced loan was secured by the same mortgage as was the original loan. In August 2008, during the process of refinancing the loan, the Bank learned that the first-mortgage loan from FFF was actually in the amount of $607,500 rather than $472,500, as previously represented by Wiggins to the Bank. Wiggins later defaulted on the refinanced loan.

In August 2009, the Bank sued Wiggins, Nowlin, Bachuss, Nowlin & Associates, and FATIC. With respect to Wiggins, the Bank alleged breach of contract, “amounts owed pursuant to a loan,” open account, account stated, unjust enrichment, fraud, misrepresentation, fraudulent suppression, and negligence. The Bank sued Nowlin & Associates, a law firm, and Nowlin and Bachuss, lawyers who were employed by the firm, under the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala. Code 1975, alleging fraud, misrepresentation, fraudulent suppression, negligence, and breach of fiduciary duty/duty of loyalty as an agent and/or attorney; the Bank also sought to hold Nowlin & Associates vicariously liable for the conduct of Nowlin and Bachuss. With respect to FATIC, the Bank alleged fraud, misrepresentation, fraudulent suppression, and negligence; the Bank also sought to hold FATIC vicariously liable for the conduct of Nowlin & Associates, Nowlin, and Bachuss.

The Bank moved for a partial summary judgment against Wiggins on its breach-of-contract claim and against the other defendants on all claims against them. Nowlin, Bachuss, Nowlin & Associates, and FATIC moved for a summary judgment on all of the Bank’s claims against them. On January 25, 2012, the trial court entered an “order on motions for summary judgments,” in which it stated, in pertinent part:

“(I) This matter came before the Court on a Motion for Partial Summary Judgment filed by [the Bank] against ... Wiggins. The Court did not receive any response from ... Wiggins. After consideration of the matters submitted, the Court finds that there is no genuine issue of material fact and the [Bank] is entitled to a Judgment as a matter of law.
“Accordingly, it is Ordered, Adjudged and Decreed that the Judgment be and the same is hereby entered in favor of the [Bank] and against ... Wiggins
“(II) This matter is also presented to the Court on Motion of [the Bank] for Partial Summary Judgment against the remaining defendants. After consideration of the matters presented, it is Ordered that said Motion for Partial Summary Judgment be and the same is hereby denied.
“(Ill) This matter is also presented to the Court on Motion[s] of the Defendants ... Nowlin, ... Bachuss, ... Nowlin & Associates, ... and [FATIC] for Summary Judgment in their favor against the claims of the [Bank]. After consideration of all matters submitted, the Court finds that there is no genuine issue of material fact and that the said Defendants are entitled to a Judgment as a matter of law.
“It is therefore Ordered, Adjudged and Decreed that Summary Judgment be and the same is hereby entered in favor of the Defendants ... Nowlin, ... Bachuss, ... Nowlin & Associates, ... and FATIC.”

With some exceptions not applicable here, an appeal lies only from a final judgment. Ex parte Green, 58 So.3d 135, 144 (Ala.2010); see also Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990); § 12-22-2, Ala.Code 1975. “The general rule is that a trial court’s order is not final [for purposes of appeal] unless it disposes of all claims as to all parties.” Dickerson v. Alabama State Univ., 852 So.2d 704, 705 (Ala.2002). Rule 54(b), Ala. R. Civ. P., establishes an exception to the general rule. Rule 54(b) provides, in pertinent part:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

In this case, the Bank’s partial-summary-judgment motion requested a judgment on the breach-of-contract claim against Wiggins and on all the claims against the other defendants. However, the Bank’s motion did not request a summary judgment as to the remaining claims against Wiggins. Thus, the trial court’s order with regard to the motion did not dispose of all of the Bank’s claims against Wiggins, and the order was not final in regard to Wiggins.

The motions for a summary judgment filed by Nowlin, Baehuss, Nowlin & Associates, and FATIC did request a judgment in their favor on all of the Bank’s claims against them, and the trial court’s order with regard to that motion did dispose of all pending claims against those defendants. However, because claims remain pending against Wiggins and the record does not contain a Rule 54(b) certification as to those — or any — claims, the order is not final as to Nowlin, Baehuss, Nowlin & Associates, and FATIC as well. As noted, a nonfinal judgment will not support an appeal. See Ex parte Green, supra. Accordingly, we dismiss the appeal as being from a nonfinal judgment.

APPEAL DISMISSED.

MOORE, C.J., and BOLIN, MURDOCK, and MAIN, JJ., concur.

      . See Rules 4(a), 4(d), and 5, Ala. R.App. P.


author: DONALDSON, Judge.

text:
    George R. MCCALL by Ethel McCall, agent v. HOUSEHOLD FINANCE CORPORATION.
    2110905.
    Court of Civil Appeals of Alabama.
    March 1, 2013.

      Juraldine Battle-Hodge, Montgomery, for appellant.
    Alan D. Leeth and Rachel R. Friedman of Burr <& Forman LLP, Birmingham, for appellee.
   DONALDSON, Judge.

George R. McCall (“Mr. McCall”) appeals from an order of the Autauga Circuit Court dismissing his complaint against Household Finance Corporation. We affirm.

Facts

Mr. McCall’s Statement of the Facts does not contain citations to the record as required by Rule 28(a)(7) and (g), Ala. R.App. P. Because this is an appeal from the dismissal of a complaint, however, the pertinent facts are those contained in the complaint.

The original complaint, filed November 11, 2011, described the plaintiff as “Ethel McCall, agent for George R. McCall,” and the defendant as “Household Finance Corporation.” A document signed by Mr. McCall naming his wife Ethel as his attorney-in-fact was attached to the complaint as an exhibit. In the complaint, Mr. McCall claimed he obtained a loan from Household Finance Corporation in July of 1996 that was secured by a mortgage on Mr. McCall’s home. He claimed that the loan was approved for $32,000 but that he only received $15,000 of the proceeds at that time with the remaining $17,000 available to him in the future. Mr. McCall further claimed that he “was never told the loan was a line of credit” or “that the loan was like a credit card.” He alleged that “[o]ver a time frame of 10 years of paying $250-$400 per month, [he] realized that the balance was not decreasing.” He further alleged that “had [he] been aware that the loan was like a credit card, [he] would have used his bank as a lender.” Attached to the complaint was a document Household Finance had sent to Mr. McCall dated February 12, 2009, which detailed the history of the loan including numerous additional cash advances. Another letter from Household Finance, dated August 4, 2011, was also attached to the complaint, providing additional details of cash advances allegedly occurring in 1997 and 1998. Mr. McCall denied receiving those advances but agreed that he had received a $2,000 cash advance in August 1997.

Count one of the complaint purported to allege a cause of action for breach of contract, although it is sprinkled with references to fraud as well. In this count, Mr. McCall claimed that in July 1996, Household Finance “promised that [he] would only be responsible for the initial loan plus any cash advances and that [he] would be able to pay the loan off in ten (10) years.” Mr. McCall further claimed that Household Finance “fraudulently charged [him] for advances he did not receive and it was realized that the loan as set up would not pay off, the contract was breached [sic].”

In count two, Mr. McCall attempted to state a cause of action for fraud by alleging that he was “promised” that the 1996 loan would pay off in ten years. That promise allegedly occurred when the loan was obtained in 1996, although it is unclear whether it occurred before or after the loan documents were executed. Mr. McCall claimed that Household Finance “had no intention to set a loan up that [Mr. McCall] could repay.”.

In count three, Mr. McCall claimed Household Finance intentionally inflicted emotional distress on him by representing that the loan would be discharged in ten years, and by calling him at inappropriate times including Sundays.

Household Finance filed a motion to dismiss the complaint on December 13, 2011. The motion pointed out that the correct name of the intended defendant was “Household Financial Corporation of Alabama.” The motion asserted that all of the claims were barred by the applicable statute of limitations, and that the count alleging intentional infliction of emotional distress failed to state a claim upon which relief could be granted under Alabama law.

On January 12, 2012, while the motion to dismiss was pending, Mr. McCall filed a motion to amend the complaint. The motion did not indicate the purpose or nature of the proposed amendment, nor was a proposed amendment attached. Household Finance filed an objection to the motion on March 9, 2012.

The hearing on the motion to dismiss and the motion to amend was continued several times. On May 11, 2012, Mr. McCall submitted a response to the objection to the amendment filed by Household Finance and attached a proposed amended complaint. The proposed amended complaint appears only to change the description of the plaintiff to “George R. McCall, by Ethel McCall under Power of Attorney,” and to change the name of the defendant to “Household Financial Corporation of Alabama.” It appears that Ethel McCall was not a party to the loan transactions and was named only in a representative capacity as Mr. McCall’s attorney-in-fact. On May 14, 2012, the trial court granted the motion to dismiss filed by Household Finance without specifying the grounds for dismissal and without ruling on Mr. McCall’s motion to amend the complaint. The order simply stated that the motion to dismiss was granted and the case was “dismissed in its entirety.” On May 21, 2012, the trial court entered an order granting Mr. McCall’s motion to amend, but it rescinded the order on May 23, 2012.

Mr. McCall filed a timely appeal on June 14, 2012, from the May 14 order dismissing the complaint.

Standard of Review

The complaint was dismissed pursuant to Rule 12(b)(6), Ala. R. Civ. P., based solely on the allegations contained in the complaint, which included the exhibits. See Rule 10(c), Ala. R. Civ. P. Therefore, we apply no presumption of correctness on appeal:

“ ‘In Nance v. Matthews, 622 So.2d 297 (Ala.1993), [the supreme court] stated the standard of review applicable to a ruling on a motion to dismiss:
“ ‘ “On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [it] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [it] may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.”
“ ‘622 So.2d at 299 (citations omitted).’ “Knox v. Western World Ins. Co., 893 So.2d 321, 322 (Ala.2004).”

Westwind Technologies, Inc. v. Jones, 925 So.2d 166, 170-171 (Ala.2005).

On appeal, Mr. McCall contends that the breach-of-contract and fraud counts were not barred by the applicable statute of limitations and that the intentional-infliction-of-emotional-distress count sufficiently stated a cause of action upon which relief could be granted. He also contends that the motion to amend the complaint should have been granted. We address the amended complaint first.

Rule 15(a), Ala. R. Civ. P., provides that amendments to a complaint may be made without leave of court unless the case has been set for trial:

“Unless a court has ordered otherwise, a party may amend a pleading without leave of court, but subject to disallowance on the court’s own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires.”

Mr. McCall could have filed the amended complaint rather than filing a motion to amend even though a motion to dismiss the original complaint was pending. See In re Colonial Ltd. P’ship Litig., 854 F.Supp. 64, 80 (D.Conn.1994) (“It frequently happens in the district court that a plaintiff amends its complaint while a motion to dismiss is pending”), quoted with approval in Ex parte Puccio, 923 So.2d 1069 (Ala.2005) (discussing the effect of an amended complaint filed while a motion to dismiss the original complaint is pending). On appeal, Mr. McCall states the proposed amendment would have “clean[ed]-up technical parts” and would not have made any substantive changes to the allegations.” Appellant’s brief, p. 20. The only purpose of the amendment was to change the descriptions of the plaintiff and defendant. Both parties appear to agree that Mr. McCall is the intended plaintiff and Household Financial Corporation of Alabama is the correct name of the defendant. Therefore, any error in failing to grant the motion to amend before ruling on the motion to dismiss is harmless as the proper parties were before the court. See Rule 45, Ala. R.App. P.

Breach-of-Cantract Claim

In count one, Mr. McCall attempted to state a cause of action for breach of contract. The allegations of the complaint are somewhat contradictory in that Mr. McCall claimed there “was not a meeting of the minds.” The claim was dismissed based on the statute of limitations applicable to contract actions of six years. § 6-2-34(9), Ala.Code 1975. Such a defense must be clearly established from the face of the pleading. Crosslin v. Health Care Auth. of Huntsville, 5 So.3d 1193 (Ala.2008). This Court has stated:

“‘The statute of limitations on a contract action runs from the time a breach occurs rather than from the time actual damage is sustained.’ AC, Inc. v. Baker, 622 So.2d 331, 335 (Ala.1993).
“ ‘ “Breach” consists of the failure without legal excuse to perform any promise forming the whole or part of the contract. 17 Am.Jur.2d Contracts § 441 at 897. Where the defendant has agreed under the contract to do a particular thing, there is a breach and the right of action is complete upon his failure to do the particular thing he agreed to do. 17 Am.Jur.2d, supra.’
“Seybold v. Magnolia Land Co., 376 So.2d 1083, 1085 (Ala.1979).”

Martin v. Hodges Chapel, LLC, 89 So.3d 756, 767 (Ala.Civ.App.2011).

Mr. McCall’s complaint repeatedly asserts that the repayment plan for the loan was not set up as he anticipated at the inception of the parties’ relationship, i.e., in 1996. He further claims that he made regular payments as required by the loan agreement, but the balance of the loan did not decrease as he expected. Based on these allegations, the breach, if any, occurred in 1996 and the six-year statute of limitations had expired by the time the complaint was filed in 2011. Mr. McCall states that “the contract might have been breached from its inception; however, the Plaintiff was not aware of the breach at the inception of the contract.” Although it is not entirely clear from the complaint or from his argument on appeal, it appears Mr. McCall claims that the statute of limitations would not begin to run until the loan did not pay off in 2006. This would be an element of damage, however, and does not extend the time for filing a complaint for a precedent breach. Stephens v. Creel, 429 So.2d 278 (Ala.1983) (the statute of limitations for breach of contract begins to run when the breach occurs even if it precedes any actual damage).

With respect to the claim of breach of contract regarding the allegedly unauthorized advances on the loan in 1997 and 1998, Mr. McCall asserts that “[t]he contract was breached each time the Defendant alleged that the Defendant received an advance.” Since the advances allegedly occurred in 1997 and 1998, this claim is likewise time-barred under § 6-2-34(9).

Alternatively, Mr. McCall argues that the breach-of-contract count was timely because Household Finance committed “successive” breaches each time his loan payment was not applied in the manner he anticipated, with the final breach occurring in 2006 when the loan was not paid off as he expected. See, e.g., AC, Inc. v. Baker, 622 So.2d 331 (Ala.1993) (discussing, but not accepting, the concept of a “continuing contract” theory). But, Mr. McCall’s passing argument does not comport with the allegations of the complaint that the loan was not initially set up in the manner Mr. McCall anticipated and, therefore, fails.

Fraud

Viewing the allegations of the complaint most favorably to Mr. McCall as required, count two alleges that he was told something about the loan that was inconsistent with the terms of the documents he executed. Mr. McCall failed to specify whether this alleged misrepresentation occurred before or after the documents were signed. Nevertheless, any claim of fraud is barred by the applicable two-year statute of limitations as the complaint affirmatively shows the misrepresentation, if any, occurred in 1996. See § 6-2-38(1), Ala.Code 1975. Mr. McCall asserts on appeal he was merely inquiring about the loan and the balance owed when he contacted Household Finance in 2009, and did not believe he had been defrauded until 2010. Mr. McCall did not allege any facts in the complaint that would support the application of § 6-2-3, Ala.Code 1975, to suspend or toll the time period for filing a fraud claim, and he does not raise that argument on appeal. See Smith v. National Sec. Ins. Co., 860 So.2d 343, 346 (Ala.2003) (“When ... the plaintiffs case is barred by the statute of limitations, the complaint must also show that he or she falls within the savings clause.”). Nor would the facts alleged in the complaint support such an allegation even if it had been asserted, because the February 2009 letter provided all details of the loan that formed the basis of his complaint. Because the complaint containing the fraud count was not filed until November 2011, approximately 15 years after the alleged misrepresentation and more than 2 years after Household Finance had provided Mr. McCall with a letter containing the details of the loan history, the trial court properly dismissed that count.

Intentional Infliction of Emotional Distress

Mr. McCall has cited no authority in support of the assertion that the trial court’s dismissal of the count alleging intentional infliction of emotional distress was erroneous. The failure to properly support this argument on appeal leaves this court with nothing to review and precludes our consideration of the argument.

“Rule 28(a)(10)[, Ala. R.App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If they do not, the arguments are waived. Moore v. Prudential Residential Servs. Ltd. P’ship, 849 So.2d 914, 923 (Ala.2002); Arrington v. Mathis, 929 So.2d 468, 470 n. 2 (Ala.Civ.App.2005); Hamm v. State, 913 So.2d 460, 486 (Ala.Crim.App.2002). ‘This is so, because “ ‘it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.’ ” ’ Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala.2007) (quoting Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003), quoting in turn Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)).”

White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008).

Nevertheless, we note that the allegations of the complaint are insufficient to state a claim for relief under this theory of liability, which is also known as the tort of outrage. Ex parte Bole, 103 So.3d 40 (Ala.2012); Chaney v. Ala West-AL, LLC, 22 So.3d 488 (Ala.Civ.App.2008). In count three, Mr. McCall claims that Household Finance “harassed” him by telephoning him at inappropriate times and on Sundays. The complaint failed to specify when the allegedly harassing telephone calls occurred and failed to specify the allegedly harassing content of any of the telephone calls. The complaint did not allege the type of egregious conduct that would support a claim for the tort of outrage or intentional infliction of emotional distress. See Ex parte Bole, supra (discussing the extremely limited circumstances in which the cause of action would be sustainable). Further, we note that Mr. McCall does not assert on appeal that he should have been permitted to amend the complaint further, nor did he provide any additional allegations regarding this count in his proposed amendment to the complaint in the trial court.

Conclusion

Although dismissal of a complaint under Rule 12(b)(6), Ala. R. Civ. P., is rarely appropriate, the allegations of breach of contract and fraud were barred by the applicable statute of limitations from the face of the complaint and attached exhibits. As to the claim alleging intentional infliction of emotional distress, Mr. McCall waived this argument by failing to comply with Rule 28(a)(10), Ala. R.App. P. Moreover, that claim was insufficiently pleaded as a matter of law. Therefore, we affirm the dismissal of the complaint.

AFFIRMED.

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


author: MOORE, Judge. THOMPSON,

text:
    Carol Renee HITT v. Melvin Loy RODEN.
    2110061.
    Court of Civil Appeals of Alabama.
    March 1, 2013.
    Bingham D. Edwards and James M. Smith, Decatur, for appellant.
    Joan-Marie Dean, Huntsville, for appel-lee.
   On Application for Rehearing

MOORE, Judge.

APPLICATION GRANTED; OPINION OF DECEMBER 21, 2012, WITHDRAWN; AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(A), Ala. R.App. P.; Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992); and Empiregas, Inc. of Ardmore v. Hardy, 487 So.2d 244, 251 (Ala.1985).

PITTMAN, THOMAS, and DONALDSON, JJ., concur.

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

THOMPSON,

Presiding Judge, dissenting.

This is a postdivorce proceeding in which, among other things, Carol Renee Hitt (“the wife”) sought a finding of contempt against Melvin Loy Roden (“the husband”) based on his alleged failure to comply with provisions in the parties’ divorce judgment regarding the payment of periodic alimony and alimony in gross. I would reverse the trial court’s judgment and remand this cause to the trial court for it to enter a judgment explaining how it determined a credit against its alimony-in-gross award to the wife based on the proceeds of the sale of a parcel of real property owned by the husband. See Blasdel v. Blasdel, 65 So.3d 428, 433 (Ala.Civ.App. 2010). Therefore, I respectfully dissent.


author: THOMAS, Judge.

text:
    Ex parte VEOLIA ENVIRONMENTAL SVC. (In re Christopher Herring v. Veolia Environmental SVC).
    2120270.
    Court of Civil Appeals of Alabama.
    March 8, 2013.

      James L. Sanders II and Lauren C. Farrington of Estes, Sanders & Williams, LLC, Birmingham, for petitioner.
    Clark Hall, Gadsden, for respondent.
   THOMAS, Judge.

Veolia Environmental SVC (“Veolia”) is the defendant in a workers’ compensation action brought in the Etowah Circuit Court by Christopher Herring. On August 29, 2012, Veolia filed a motion to dismiss or, in the alternative, to change venue under the forum non conveniens statute, Ala.Code 1975, § 6-3-21.1, seeking to have the action transferred to the Tal-ladega Circuit Court. In support of its motion, Veolia provided an “Employer’s First Report of Injury or Occupational Disease” form (“the first-report-of-injury form”), completed after Herring reported his injury to his supervisor, and the affidavit of Odis Moore, Veolia’s area safety manager.

The first-report-of-injury form lists Veo-lia’s address as 1430 Speedway Boulevard, Lincoln, Alabama. The first-report-of-injury form also indicates, by virtue of a checked box, that Herring’s injury occurred on Veolia’s premises. On the first-report-of-injury form, the typed description of the injury indicates that Herring told his supervisor that he injured his knee on or about April 18, 2011, “when he was climbing ... on his truck to get a cart. He alleges he hit his right knee on the lip of the packing blade.”

Moore’s affidavit indicates that Veolia’s principal place of business is located in Talladega County. He also avers that “all witnesses who were involved in this accident made the basis of this lawsuit were employees who worked out of’ Veolia’s Talladega County location. Finally, Moore states that it would be inconvenient for Veolia to defend the action in Etowah County because Herring worked out of Veolia’s Talladega County location and “most witnesses reside nearer to Talladega County than to Etowah County.”

On October 10, 2012, Herring filed a response in opposition to the motion to transfer. The trial court denied Veolia’s motion on October 31, 2012. Veolia sought reconsideration of the denial of its motion to transfer on November 19, 2012, and the trial court denied that motion on November 20, 2012. Veolia filed this petition in our supreme court on December 10, 2012, and that court transferred the petition to this court, because it falls within our jurisdiction, on January 7, 2013.

In addition to the materials mentioned above, Veolia has appended to its petition an affidavit from Erskine Watson Riddle, Herring’s direct supervisor and an expected witness. Based on the fact that Riddle’s affidavit was not mentioned in Veo-lia’s November 19, 2012, motion seeking reconsideration of the trial court’s denial of the motion to transfer and on the fact that the affidavit is dated November 20, 2012, the day after Veolia moved the trial court to reconsider its denial of the motion to transfer, we question whether Riddle’s affidavit was submitted to the trial court. In any event, the affidavit states only that Riddle would be inconvenienced if he had to travel to Etowah County for the trial.

Veolia argues that it is entitled to a writ of mandamus directing the Eto-wah Circuit Court to transfer the action to the Talladega Circuit Court because, it contends, it established both that Tallade-ga County would be a more convenient forum for the parties and witnesses and that the interests of justice compelled transfer of the action under § 6-3-21.1. Veolia relies heavily on our supreme court’s opinion in Ex parte Indiana Mills and Manufacturing, Inc., 10 So.3d 536 (Ala.2008). However, as explained below, we cannot agree that Veolia has met the burden of proving that it has a clear legal right to the relief it seeks, which is a requirement for mandamus relief.

“The proper method for obtaining review of a' denial of a motion . for a change of venue in a civil action is to petition for a writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 302 (Ala.1986). ‘When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court abused its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). ‘A .writ of mandamus is an extraordinary remedy, requiring the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’ Ex parte Nichols, 757 So.2d 374, 376 (Ala.1999).”

Ex parte Yocum, 963 So.2d 600, 602 (Ala.2007).

Veolia relies on the forum non con-veniens statute, § 6-3-21.1(a), which reads:

“With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein. Provided, however, this section shall not apply to cases subject to [Ala.Code 1975], Section 30-3-5.”

Under the forum non conveniens statute, a trial court must transfer an action when a party seeking the transfer proves either (1) that the convenience of the parties or witnesses would be significantly aided by transfer, see Ex parte Nichols, 757 So.2d 374, 378 (Ála.1999) (“[T]he burden is on the party moving for the transfer to prove that the transferee forum is significantly more convenient than the plaintiffs chosen forum.”), or (2) that the “interests of justice” necessitate a transfer. Ex parte National Sec. Ins. Co., 727 So.2d 788, 790 (Ala.1998) (“[T]he ‘interest of justice’ [prong] require[s] the transfer of [an] action from a county with little, if any, connection to the action, to the county with a strong connection to the action.”).

“ ‘A defendant moving for a transfer under § 6-3-21.1 has the initial burden of showing that the transfer is justified, based on the convenience of the parties or witnesses or based on the interest of justice.’ ” Ex parte Kane, 989 So.2d 509, 511 (Ala.2008) (quoting Ex parte National Sec. Ins. Co., 727 So.2d at 789). “Our review is limited to only those facts that were before the trial court.” Ex parte Kane, 989 So.2d at 511. Further, “those facts ‘must be based upon “eviden-tiary material,” which does not include statements of counsel in motions, briefs, and arguments.’ ” Ex parte Indiana Mills & Mfg., Inc., 10 So.3d at 541 n. 3 (quoting Ex parte ADT Sec. Servs., Inc., 933 So.2d 343, 345 (Ala.2006)).

The facts established by the meager evi-dentiary materials presented to the trial court and made exhibits to Veolia’s mandamus petition establish that Herring’s injury occurred in Talladega County, that Veo-lia’s principal place of business is located in Talladega County, that expected witnesses were employed by Veolia in Tal-ladega County, that Veolia would find it inconvenient to defend the action in Eto-wah County, that expected witness Riddle would find it inconvenient to travel to Eto-wah County for trial, and that, according to Moore, “most witnesses reside nearer to Talladega County than to Etowah County.” This court must consider whether these facts are sufficient to require a transfer of the action under the forum non conveniens statute.

We first consider whether a transfer of the action was required under the convenience-of-the-parties prong. A review of the caselaw relevant to the convenience-of-the-parties prong of the forum non conveniens statute indicates that the meager showing made by Veolia is insufficient to support a conclusion that the trial court abused its discretion in denying Veo-lia’s motion. As our supreme court explained in Ex parte Nichols, 757 So.2d at 379, the location of nonparty witnesses is an appropriate factor for the trial court to consider. However, the Nichols court further held that the convenience of nonparty witnesses that are employees of one of the parties to the case, and therefore whose presence may be obtained by one of the parties, does not weigh heavily in favor of a transfer. Id.; Ex parte Yocum, 963 So.2d at 602 (“Further, the inconvenience to nonparty witnesses does not weigh heavily where, as here, those witnesses are employees of the ... defendants and their presence at trial can be secured by those defendants.”); see also 15 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3851, at 216-217 (3d ed.2007) (discussing 28 U.S.C. § 1404(a), which permits transfer between United States district courts “[f]or the convenience of parties and witnesses, in the interest of justice,” and stating that “the convenience of witnesses who are employees of a party is given less weight by the court because that party can obtain their presence at trial”). In any event, “[t]he doctrine oí forum non conve- niens ‘provides for transfer to a more convenient forum, not to a forum likely to prove equally convenient or inconvenient,’ ” Ex parte Nichols, 757 So.2d at 379 (quoting Van Dusen v. Barrack, 376 U.S. 612, 645-46, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964)), and Alabama courts have typically required a party seeking the transfer “to prove that the transferee forum is significantly more convenient than the plaintiffs chosen forum.” Ex parte Nichols, 757 So.2d at 378. The fact that the witnesses employed by Veolia, like Riddle, might be located closer to Talladega County or might be inconvenienced by having to travel to Etowah County, then, does not entitle Veolia to a transfer of the action under the forum non conveniens statute.

Turning now to an analysis of the interest-of-justice prong, this court must consider whether Veolia has established that Talladega County has a strong connection to Herring’s action and that Eto-wah County has “little, if any,” connection to the action. Ex parte National Sec. Ins. Co., 727 So.2d at 790. Veolia has presented evidence indicating that its principal place of business is in Talladega County and that the accident giving rise to this action occurred in Talladega County. Thus, it has established that the action indeed has a connection to Talladega County.

However, Veolia has not presented evidence equivalent to that of the evidence presented by the respondent in Ex parte Indiana Mills and Manufacturing, Inc., the case on which it relies in arguing that it is entitled to a writ of mandamus in the present case. In Ex parte Indiana Mills and Manufacturing, Inc., 10 So.3d at 541, the defendant presented evidence indicating that only one defendant resided in the forum county and that “none of the relevant facts in th[e] case actually involve[d]” the forum county; through affidavits and testimony, the defendant established that the accident had occurred in the transferee county and that all the evidence relating to the accident and its investigation was located in the transferee county. Similarly, the petitioners in Ex parte National Security Insurance Co., 727 So.2d at 790, Ex parte First Family Financial Services, Inc., 718 So.2d 658, 662 (Ala.1998), and Ex parte Independent Life and Accident Insurance Co., 725 So.2d 955, 956 (Ala.1998), established, in addition to other facts demonstrating a significant connection to the transferee county, that the plaintiffs in each of those actions did not reside in the forum county and instead resided in the transferee county. Veolia may have established that Herring’s action has a significant connection with Talladega County, but it has not established that “ ‘the “nexus” or “connection” between [Herring’s] action and the original forum is [not] strong enough to warrant burdening [Herring’s chosen] forum with the action.’ ” Ex parte Price, 47 So.3d 1221, 1225 (Ala.2010) (quoting Ex parte First Tennessee Bank Nat’l Ass’n, 994 So.2d 906, 911 (Ala.2008)).

Because Veolia had in the trial court the burden of demonstrating that the convenience of the parties and witnesses or the interest of justice necessitated a transfer of the action, see Ex parte Kane, 989 So.2d at 511, and because Veolia has the burden in this court of demonstrating a clear legal right to relief, Ex parte Yocum, 963 So.2d at 602, but has not met those burdens, we cannot agree that it is entitled to the writ of mandamus it seeks. Thus, we deny the petition for the writ of mandamus.

PETITION DENIED.

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

      . The petition refers to Veolia as Veolia Environmental SVC. Certain of the exhibits refer to Veolia as Veolia Environmental Services, Inc., Veolia Environmental Service, and Veo-lia ES Solid Waste, Inc.


text:
    James Michael PATTERSON v. Sara ASKEW.
    2120080.
    Court of Civil Appeals of Alabama.
    March 8, 2013.
    Jason M. Jackson and David G. Thomas, Alexander City, for appellant.
    Submitted on appellant’s brief only.
   THOMAS, Judge.

On July 24, 2011, Sara Askew filed a complaint in the Tallapoosa Circuit Court seeking a judgment requiring James Michael Patterson to contribute to the post-minority educational expenses of the parties’ son, Joshua Aaron Patterson. A hearing was held on September 17, 2012. The circuit court entered its judgment on September 18, 2012, which required James to pay postminority educational support in the monthly amount of $509 for up to 4 years or until Joshua reached 23 years of age, so long as Joshua maintained a “C average” as a full-time student.

James filed a motion to alter, amend, or vacate the September 18, 2012, judgment on September 21, 2012. In his postjudgment motion, James contended that the circuit court could not properly award any amount of postminority educational support because, he said, the circuit court had heard undisputed testimony that he and Joshua were estranged, that Joshua’s grades were not consistent with an aptitude for a college education, that Joshua could have continued to attend Central Alabama Community College “with little or no cost,” that James would not have paid Joshua’s college expenses if James and Sara were married, and that James did not have the financial ability to contribute to Joshua’s college education. The circuit court denied James’s post-judgment motion on September 25, 2012. James filed a timely appeal with this court on September 28, 2012, seeking this court’s review as to whether the circuit court erred because, he says, it is undisputed that the circuit court did not properly consider his financial resources, Joshua’s aptitude for a college education, his estranged relationship with Joshua, and whether James would have paid Joshua’s college expenses if the parties had married and remained married.

“Our standard of review in a case involving a modification of a child-support order is well-settled. Matters related to child support, including modifications of a child-support order, rest soundly within the trial court’s discretion and will not be disturbed on appeal, absent a showing that the ruling is not supported by the evidence and, thus, is plainly and palpably wrong. Berryhill v. Reeves, 705 So.2d 505 (Ala.Civ.App.1997); Williams v. Braddy, 689 So.2d 154 (Ala.Civ.App.1996).
“ ‘In Ex parte Bayliss, 550 So.2d 986 (Ala.1989), our supreme court held that the trial court has discretion whether to order postminority support at all, and that, in exercising that discretion, the trial court shall consider
“ ‘ “all relevant factors that shall appear reasonable and necessary, including primarily the financial resources of the parents and the child and the child’s commitment to, and aptitude for, the requested education.”
‘Ex parte Bayliss, 550 So.2d at 987 (emphasis in original). In addition, the trial [court] may consider
“ ‘ “the standard of living that the child would have enjoyed if the marriage had not been dissolved and the family unit had been preserved and the child’s relationship with his parents and responsiveness to parental advice and guidance.”
‘Id.’
“Stinson v. Stinson, 729 So.2d 864, 868 (Ala.Civ.App.1998).”

West v. West, 875 So.2d 323, 324-25 (Ala.Civ.App.2003).

Sara testified that Joshua had been enrolled in Central Alabama Community College and had a grade point average (“GPA”) of 1.5 on a 4.0 scale. Joshua had transferred to Southern Union State Community College with the goal of applying for admission to Auburn University. Sara’s testimony that Joshua had a 1.5 GPA is the only evidence in the record regarding Joshua’s aptitude for a college education. Similarly, Sara’s testimony is the only evidence in the record regarding Joshua’s commitment to a college education. Sara testified that Joshua “dropped some classes,” and she admitted that dropping the classes required Joshua’s willingness to accept a grade of zero in the classes. Sara did not testify as to any reason, valid or otherwise, that Joshua had for dropping the classes. Thus, we determine that the evidence before the circuit court revealed that, after four semesters of undergraduate studies, Joshua had failed to demonstrate a commitment to, and an aptitude for, a college education.

Unless a trial court receives evidence indicating that a student is committed to, and has an aptitude for, the requested education, it may not award postminority educational support because the student’s commitment to, and aptitude for, the requested education is a primary consideration. See Ex parte Bayliss, 550 So.2d 986, 987 (Ala.1989). In this case, the circuit court failed to properly consider Joshua’s lack of commitment to, and aptitude for, a college education. The fact that the circuit court conditioned James’s payment of postmi-nority educational support on Joshua’s ability to “maintain a reasonable academic standard (‘C’ average)” does not alter our conclusion because, in this case, Sara failed to provide sufficient evidence to the circuit court that could indicate that Joshua had a commitment to, and an aptitude for, a college education. Therefore, the circuit court’s September 18, 2012, judgment is plainly and palpably wrong and we reverse the judgment.

Due to the dispositive nature of our determination of the issue addressed above, we pretermit discussion of James’s arguments that the circuit court did not properly consider his financial resources, his estranged relationship with Joshua, or whether he would have paid for Joshua’s college expenses if the parties had married and remained married. See Nelson v. Robinson, 74 So.3d 979, 983 (Ala.Civ.App.2011); Favorite Mkt. Store v. Waldrop, 924 So.2d 719, 723 (Ala.Civ.App.2005) (pre-termitting discussion of certain issues in light of dispositive nature of another issue).

REVERSED AND REMANDED.

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

      . Ambiguous language in the September 18, 2012, judgment — requiring Joshua to "maintain a reasonable academic standard ('C' average)" — could refer to a single semester’s grade point average ("GPA”) or to a cumulative GPA. Because there was no evidence before the circuit court that Joshua ever had a semester or cumulative GPA above 1.5 on a 4.0 scale (on which a "C” average would correspond to a GPA of 2.0), we need not decide the import of the ambiguous language. See Lindenmuth v. Lindenmuth, 66 So.3d 267, 273 (Ala.Civ.App.2010).

      . James and Sara were never married; however, postminority educational support is not restricted to the children of divorced parents. See Ex parte Jones, 592 So.2d 608, 610 (Ala. 1991).


text:
    A.H. v. HOUSTON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2120061, 2120062 and 2120063.
    Court of Civil Appeals of Alabama.
    March 8, 2013.

      Laura Peterman Wells, Dothan, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   THOMAS, Judge.

On July 16, 2012, the Houston County Department of Human Resources (“DHR”) filed three petitions in the Houston Juvenile Court (“the juvenile court”) alleging that J.W.M. Ill, A.L.M., and A.J.M. (sometimes referred to collectively as “the children”) were dependent and requesting that the juvenile court terminate the parental rights of A.H. (“the mother”)- and J.W.M., Jr. (“the father”). The mother filed a petition for the return of custody of the children on September 20, 2012. A hearing was held on September 24, 2012, at which the juvenile court heard evidence ore tenus. The juvenile court entered judgments declaring the children dependent and terminating the mother’s and the father’s parental rights to each child on September 26, 2012. The judgments also denied the mother’s petition for return of custody of the children. The mother filed a timely notice of appeal from each judgment with this court on October 2, 2012. We have consolidated the appeals.

The record on appeal is sparse regarding the details of the mother’s criminal history and her ensuing incarceration as well as the circumstances under which DHR initially became involved with the family. The record indicates the following facts relevant to these appeals. At the time of the trial, A.L.M. was 11 years old, A.J.M. was 9 years old, and J.W.M. Ill was 7 years old. The mother and the father had divorced in 2007. DHR had been involved with the mother and the children since March 2010, when the children were removed from the mother’s home. The record indicates that at some point the mother was convicted in Alabama of manufacturing methamphetamine. It is unclear whether the mother was incarcerated after that conviction. However, it is undisputed that, at the time of the trial, the mother was serving a two-year house-arrest sentence in Bonifay, Florida, where she was living at the time of the trial. The mother testified that she was initially sentenced to serve three years’ probation for assault and battery of a law-enforcement officer and for resisting arrest with violence. She later violated her probation by moving her residence without notifying her probation officer; at that time, her probation was revoked, and she was sentenced to house arrest and 150 hours of community service. The house-arrest sentence is set to terminate on April 3, 2014, although the mother opined that she might be eligible for early release on April 3, 2013.

The mother admitted at trial that the children had not lived with her for 30 months. During that time, DHR had attempted to place the children with a maternal aunt, their paternal grandparents, and their maternal grandmother. At one point, the children were placed with the father; however, the father moved with the children from Alabama to Florida without informing DHR. Because the father proved uncooperative in returning the children to Alabama, DHR was forced to obtain a pickup order to retrieve the children. Alicia Anderson, the DHR worker assigned to the mother and the children, approximated that the children had been moved 10 times since August 2011.

The mother admitted at trial that she had had a problem with alcohol and drugs. Anderson testified that, as part of the mother’s Individualized Service Plan (“ISP”), DHR had requested that the mother complete a substance-abuse-treatment program. However, in response to questions from the juvenile court,- the mother admitted that she had not completed an inpatient or an outpatient substance-abuse program, even though a substance-abuse assessment indicated that the mother needed to complete an inpatient-treatment program. The mother further stated that she had stopped using alcohol and methamphetamine on her own without the assistance of a formal treatment program.

Anderson testified that the mother had made great strides since May 2012 toward improving her relationship with the children and cooperating with DHR. Further, according to Anderson, her supervisor had suggested to the mother that the mother should file the September 20, 2012, petition for custody of the children. Anderson also admitted, in response to examination by the mother’s attorney, that that suggestion was made to allow the mother more time to rehabilitate herself in light of the recent progress the mother had exhibited.

Anderson testified that the mother had passed three drug tests in the last six months. Anderson further testified that DHR had requested that the mother take a drug test on September 21, 2012, three days before the hearing; however, Anderson said that, although she had reported to the drug-testing facility, the mother left the drug-testing facility before completing the drug test. According to the mother, she left the facility because she had to return to her residence in Florida and did not have an adequate amount of time to complete the drug test. The mother further testified that had she remained at the drug-testing facility she would not have returned home by the time required by the conditions of her house arrest.

The mother testified that sheds currently living in a three-bedroom house that has plenty of room for the children. She also testified that, because she is currently unemployed, her family is helping her to pay for the house. The mother also admitted that she has moved 4 times in the last 30 months. The mother also testified that she had not been employed for approximately two months, that she had recently been employed cleaning condominiums in Panama City, Florida, and that that employment had ended because she did not have transportation to and- from work. Further, the mother testified that before her most recent employment she had not been employed since she was arrested on July 8, 2010. However, Rhonda Sanders, an employee of the Salvation Army in Bon-ifay, where the mother was completing her community-service hours, testified that the mother was a hard worker and dependable. Additionally, Sanders testified that the mother planned to work at the Salvation Army in the future.

It is undisputed that the mother had been exercising visitation with the children every other Friday since May 2012. Those visits were facilitated by DHR. However, there had been earlier periods when the mother did not have visitation with the children due to her incarceration. The mother had also completed anger-management and parenting classes. According to the mother, other than the missed drug test, she has complied with everything DHR has requested of her. Anderson also testified that, other than her failure to complete a substance-abuse-treatment program, the mother had complied with her ISP goals.

“Our standard of review of a judgment terminating parental rights is well settled. ‘A juvenile court’s factual findings, based on ore tenus evidence, in a judgment terminating parental rights are presumed to be correct and will not be disturbed unless they are plainly and palpably wrong.’ J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1183 (Ala.Civ.App.2007). However, a trial court’s application of the law to undisputed facts is not given a presumption of correctness on appeal, and this court applies a de novo standard of review to questions of law. See J.A. v. C.M., 93 So.3d 953, 954 (Ala.Civ.App.2012).”

J.K. v. Jefferson Cnty. Dep’t of Human Res., 114 So.3d 835, 842 (Ala.Civ.App.2012).

“ ‘To terminate parental rights, the trial court must first determine from clear and convincing evidence that the child is dependent. S.F. v. Dep’t of Human Res., 680 So.2d 346 (Ala.Civ.App.1996). The trial court must then determine that there exists no alternative to termination. L.A.G. v. State Dep’t of Human Res., 681 So.2d 596 (Ala.Civ.App.1996).’
“M.W. v. Houston Cnty. Dep’t of Human Res., 773 So.2d 484, 485-86 (Ala.Civ.App.2000).”

A.K. v. Henry Cnty. Dep’t of Human Res., 84 So.3d 68, 69-70 (Ala.Civ.App.2011).

The grounds for termination of parental rights are set out in § 12-15-319, Ala. Code 1975, which provides, in pertinent part:

“(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following:
“(2) Emotional illness, mental illness, or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of a duration or nature as to render the parent unable to care for [the] needs of the child.
“(12) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”

Clear and convincing evidence is “ ‘[evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’ ” L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting Ala. Code 1975, § 6-ll-20(b)(4)).

The mother appears to briefly challenge the juvenile court’s findings that the children were dependent by disputing the juvenile court’s finding that she is “unable or unwilling to provide a stable home for [the children].” At trial, the mother testified that she had moved 4 times in the last 30 months. Moreover, the mother has not maintained significant employment since July 2010, and her family appears to be her only source of income. Furthermore, although the record indicates that the mother could leave her house for work if she were to obtain employment, the mother is serving a two-year house-arrest sentence that is not due to terminate until April 3, 2014, although the mother avers that she might be eligible for early release on April 3, 2013.

The juvenile court had ample evidence before it to determine that the mother had not adjusted her circumstances to meet the needs of her children by her frequent moves, lack of employment, and refusal to participate in substance-abuse treatment. See § 12-15-102(8), Ala.Code 1975 (defining dependent child). Therefore, we conclude that the juvenile court did not err by finding the children dependent.

The mother next asserts in her brief that DHR did not prove by clear and convincing evidence that there were no viable alternatives to the termination of her parental rights. The juvenile court’s judgments included the following findings of fact:

“(2) That the said child is a dependent child within the meaning of Title 12-15-102 of the Code of Alabama of 1975 in that: The child is dependent on the public for support; is without a parent able to provide for the child’s support, training or education; and the mother and father have not been willing or able to discharge their responsibilities to and for said child or provide for the physical, emotional and financial needs of said child.
“(3) The parents are unable or unwilling to provide a stable home for said child.
“(4) The Department of Human Resources and this Court have considered several less drastic measures since March, 2010. The' Court finds there is no reasonable or viable alternative to the termination of parental rights.”

The mother argues that maintaining the status quo and allowing the children to remain in foster care while she completes her sentence is a viable alternative to termination of her parental rights. This court has held' that maintaining a child in foster care indefinitely while a parent attempts to rehabilitate himself or herself is not a viable alternative to the termination of parental rights. See T.L.S. v. Lauderdale Cnty. Dep’t of Human Res., 119 So.3d 431, 438 (Ala.Civ.App.2013). However, “ ‘the primary focus of a court ... is to protect the welfare of children and at the same time to protect the rights of their parents.’ Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990).” Ex parte A.S., 73 So.3d 1223, 1228 (Ala.2011).

We find AS. instructive in this case. The child in A.S. was found dependent due to the mother’s incarceration; custody of the child was awarded to the child’s maternal grandmother. At the maternal grandmother’s request, the juvenile court in that case entered a judgment terminating the mother’s parental rights to the child. Id. at 1227. The evidence before the trial court indicated that the mother had maintained contact with the child during her incarceration, had sought treatment for her kleptomania, and was “apparently behaving while she [was] incarcerated because she ha[d] earned good-time credit.” Id. at 1229. This court affirmed the trial court’s judgment, without an opinion. AS. v. I.M.S. (No. 2090774, November 19, 2010), 92 So.3d 188 (AJa.Civ.App.2010) (table). Our supreme court reversed this court’s judgment affirming the trial court’s judgment terminating the mother’s parental rights because the maternal grandmother had failed to present sufficient evidence demonstrating that no viable alternative to termination of the mother’s parental rights existed. 73 So.3d at 1229.

In the present case, DHR failed to present clear and convincing evidence demonstrating that the mother continues to suffer from a drug or alcohol addiction or that the mother is “unable or unwilling to discharge [her] responsibilities to and for the [children], or that the conduct or condition of the [mother] renders [her] unable to properly care for the [children] and that the conduct or condition is unlikely to change in the foreseeable future.” § 12-15-819(a), Ala.Code 1975. “This court has consistently held that the existence of evidence of cmrent conditions or conduct relating to a parent’s inability or unwillingness to care for his or her children is implicit in the requirement that termination of parental rights be based on clear and convincing evidence.” D.O. v. Calhoun Cnty. Dep’t of Human Res., 859 So.2d 439, 444 (Ala.Civ.App.2003). Although the mother had not attended a substance-abuse-treatment program, she had passed every drug test except the most recent one before trial, which she did not take due to time constraints imposed by her house arrest. Albeit with the help of her family, the mother had procured suitable housing for the children. Since May 2012, the mother has also consistently exercised visitation with the children.

“ ‘ “[T]he termination of parental rights is a drastic measure, and we know of no means by which those rights, once terminated, can be reinstated. The evidence in [this] case[] ‘does not rise to the level of being so clear and convincing as to support termination of the parental rights of the mother, such action being the last and most extreme disposition permitted by statute.’ ” ’
“D.O. v. Calhoun County Dep’t of Human Res., 859 So.2d 439, 445 (Ala.Civ.App.2003) (quoting V.M. v. State Dep’t of Human Res., 710 So.2d 915, 921 (Ala.Civ.App.1998)).”

AS., 73 So.3d at 1230. Based on the evidence in the record before this court regarding the mother’s current conditions, we cannot agree that termination of the mother’s parental rights is warranted at this time because maintaining the status quo is a viable alternative to termination under the specific facts presented in this case. Accordingly, we reverse the judgments of the juvenile court terminating the parental rights of the mother, and we remand the causes for further proceedings consistent with this opinion.

2120061 — REVERSED AND REMANDED.

2120062 — REVERSED AND REMANDED.

2120063 — REVERSED AND REMANDED.

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

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

      . Separate actions relating to each child were initiated in the juvenile court. The juvenile court entered a separate judgment in each action; other than referencing a different child’s name, each judgment was identical. The judgment regarding A.J.M. was amended on October 2, 2012, in order to correct a clerical error.

      . The father did not appear at the trial; the father's attorney appeared before the juvenile court on the father’s behalf. The father did not appeal the termination of his parental rights to the children.

      . The underlying infraction for which the mother was arrested is not readily apparent from the record.

      . DHR attempted to maintain the placement of the children with the father in Florida. However, Anderson stated that Florida authorities objected to the placement, citing violations of Florida policy and the Interstate Compact on the Placement of Children.


author: BURKE, Judge.

text:
    Anthony BAGGETT v. STATE of Alabama.
    CR-11-0873.
    Court of Criminal Appeals of Alabama.
    June 29, 2012.
    Certiorari Denied March 15, 2013 Alabama Supreme Court 1111551.

      Anthony Baggett, pro se.
    Luther Strange, atty. gen., and Kristi 0. Wilkerson, asst. atty. gen., for appellee.
   BURKE, Judge.

Anthony Baggett appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, challenging his May 25, 2006, conviction of first-degree unlawful manufacture of a controlled substance and resulting sentence of life. He states in his petition that he has filed two previous Rule 32 petitions and received an evidentiary hearing on both. In his present petition, which Baggett stated was mailed on December 1, 2011, he marked that the circuit court lacked jurisdiction to render judgment or to impose sentence. In his attached argument in support of his petition, Baggett alleged that he did not waive his right to counsel for his first appeal due to his voluntary absence from his sentencing proceeding. He acknowledged that he was absent from his sentencing because he fled the jurisdiction, but he contended that this action did not constitute a waiver of counsel. He finally contended that this issue is not subject to the preclusionary grounds of Rule 32, Ala.R.Crim.P. Based on his claims, Baggett contended that he is entitled to an evidentiary hearing.

Baggett filed a motion for judgment in his favor based on the State’s failure to file a timely response to his petition. The State then filed a “Rule 32.2-Preclusion of Remedy” motion, alleging that the petition was due to be precluded because it was successive in that Baggett had filed two prior Rule 32 petitions; because the petition was not filed within one year of the time allowed for appeal; and because his ineffectiveness-of-counsel claim was precluded as this was a successive petition.

Baggett filed a response to the State’s filing and argued that his ineffectiveness claim did not concern the ineffectiveness of his counsel, but rather the denial of counsel and was therefore jurisdictional. He argued that the State’s failure to properly refute his claim resulted in its being accepted as true.

The circuit court summarily dismissed Baggett’s petition on the grounds that it was successive and untimely filed. The court also requested that this Court take judicial notice of the prior records on appeal of Baggett’s prior petitions. Baggett filed a motion contesting the circuit court’s order and again arguing that his claim was jurisdictional. The circuit court denied this motion.

On appeal, Baggett again argues that he was denied his right to counsel on his first appeal, which claim, he says, raises jurisdictional concerns and stripped the court’s authority to convict and sentence him. This Court, in affirming by unpublished memorandum opinion, the denial of Baggett’s first Rule 32 petition, stated that Baggett “failed to appear for sentencing on March 2, 2006; sentencing was reset for May 25, 2006; and he again failed to appear. The trial court then sentenced him in absentia....” Baggett v. State (CR-07-0872, October 24, 2008), 33 So.3d 653 (Ala.Crim.App.2008) (table). In his petition, Baggett states that he was subsequently apprehended in South Carolina and was transferred back to Alabama to prison. He states the date of his apprehension in South Carolina to have been October 26, 2006. He was sentenced on May 25, 2006, and the circuit court subsequently denied Baggett’s request for an out-of-time appeal. Baggett was not apprehended until after his 42 days to file an appeal had expired; therefore, he was not entitled to, nor did he request, an attorney while he was an escapee in South Carolina. Because Baggett voluntarily absented himself from the sentencing proceedings by escaping from the jurisdiction, he cannot now profit from this action by claiming that the trial court should have appointed him counsel for an appeal.

‘“Where the offense is not capital, a defendant’s voluntary absence, after the trial has begun in his presence, does not void the proceedings up to that point nor prevent the trial court from trying the case to conclusion and operates as a waiver of his right to be present. Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973); Diaz v. United States, [223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912)]; Young v. State, [455 So.2d 208 (Ala.Crim.App. 1984)]. A defendant who voluntarily absents himself from his trial proceedings may not later seek to profit from his own action by attacking the validity of the judicial process. Thomas v. State, 395 So.2d 1105 (Ala.Crim.App.1981).’”

Thompson v. State, 12 So.3d 723, 727 (Ala.Crim.App.2008), quoting Arrington v. State, 773 So.2d 500, 502 (Ala.Crim.App.2000). Compare Pratt v. State, 851 So.2d 142, 144 (Ala.Crim.App.2002) (Pratt’s claim that he failed to appeal through no fault of his own because neither the court nor his counsel informed him of this right was without merit because “Pratt admits in his brief on appeal and in his notice of appeal that he voluntarily fled the jurisdiction in order to avoid sentencing.... Because he voluntarily chose to be absent from his sentencing hearing and, as a result, voluntarily forfeited any information the trial court was to impart during the sentencing hearing, Pratt cannot now complain that he was not informed of his rights. Moreover, as for his trial counsel’s alleged failure to inform him of his right to appeal, trial counsel was no longer his counsel because trial counsel had moved to withdraw, presumably because Pratt failed to appear at sentencing. Therefore, Pratt’s failure to appeal was absolutely his own fault.”).

If Baggett had properly appeared at his sentencing, he would have been informed of his right to appeal and would have been appointed counsel for appeal if he so chose. However, because he fled and voluntarily absented himself from his sentencing, he intentionally and voluntarily absented himself from claiming his right to counsel on appeal.

Based on the foregoing, the circuit court’s summary denial of Baggett’s Rule 32 petition is due to be affirmed.

AFFIRMED.

WINDOM, P.J., and WELCH and KELLUM, JJ., concur. JOINER, J., concurs in the result.

      . Baggett was also convicted of unlawful possession of a controlled substance and possession of drug paraphernalia. This Court affirmed those convictions, without an opinion. See Baggett v. State (CR-07-0872, October 24, 2008), 33 So.3d 653 (Ala.Crim.App.2008) (table).

      . Baggett appealed only the denial of his first petition.

      . This denial was upheld by this Court on the appeal of Baggett’s first Rule 32 petition.