author: PITTMAN, Judge.

text:
    Fredrick J. DOUGLAS and Linda L. Douglas v. TROY BANK & TRUST COMPANY.
    2110053.
    Court of Civil Appeals of Alabama.
    Aug. 24, 2012.
    Rehearing Denied Jan. 4, 2013.
    Certiorari Denied March 15, 2013 Alabama Supreme Court 1120485.

      Fredrick J. Douglas, pro se, and Linda L. Douglas, pro se.
   PITTMAN, Judge.

In April 2011, Troy Bank & Trust Company (“the bank”) brought an action in the Coffee Circuit Court seeking the ejectment of Fredrick J. Douglas and Linda L. Douglas from a particular parcel of real property located in Coffee County. In its complaint, the bank alleged, in pertinent part, that the Douglases had mortgaged that property to secure the repayment to the bank of a particular promissory note, but had defaulted in making payments on that note, whereupon the bank had foreclosed upon the mortgage and had subsequently purchased the real property at an auction held pursuant to the power of sale in that mortgage; the bank further alleged, in paragraph 4 of its complaint, that although the bank had made a demand for possession of the property, the Douglases were continuing to occupy the property, and it contended that the Douglases had thereby forfeited their rights of redemption as to the property. The Douglases answered the complaint, admitting the truth of paragraph 4 but otherwise denying the bank’s statements. After the Douglases had filed their answer, the bank filed a motion seeking a trial setting; on May 27/2011, the trial court set an initial trial date of June 22, 2011. The Douglases filed a motion to continue, which was granted, and a new trial date of September 6, 2011, was set.

On September 1, 2011, the Douglases filed a motion to dismiss, asserting that the trial court lacked subject-matter jurisdiction because, they said, the bank was not a “holder in due course” of the note or the mortgage made the basis of the foreclosure sale and that the bank had failed to surrender to the Douglases the “original wet ink signature promissory note and mortgage.” After an ore tenus proceeding (the transcript of which does not appear in the record), the trial court entered a judgment in favor of the bank and awarded the bank possession of the property at issue. The Douglases, after the denial of their postjudgment motion filed pursuant to Rule 59(e), Ala. R. Civ. P., appealed; their appeal was transferred to this court pursuant to Ala.Code 1975, § 12-2-7(6).

In their appellate brief, and citing various portions of the Uniform Commercial Code (“UCC”), the Douglases, appearing pro se as they did throughout the proceedings in the trial court, argue that the trial court did not have subject-matter jurisdiction because, they say, the bank neither surrendered the original promissory note and mortgage to them nor filed those documents with the trial court. This sort of challenge to creditors’ rights has been raised in a sufficient number of cases arising in states that, like Alabama, authorize foreclosure by means other than judicial action (such as a contractually reserved power of sale) that the contention itself has earned the shorthand moniker “show me the note.” See generally Diessner v. Mortgage Elec. Registration Sys., 618 F.Supp.2d 1184, 1187 (D.Ariz.2009) (noting that federal “district courts ‘have routinely held that [the] “show me the note” argument lacks merit,’ ” citing opinions by federal district courts sitting in Arizona, Nevada, and California, and further holding that “Arizona’s non-judicial foreclosure statute does not require presentation of the original note before commencing foreclosure proceedings”).

In Farkas v. Suntrust Mortgage, Inc., Civil Action No. 10-0512-CG-M, December 15, 2010 (S.D.Ala.2010) (not reported in F.Supp.2d), a federal magistrate judge considering whether to allow similar claims presented by a debtor in an offensive, rather than a defensive, capacity, agreed in his report and recommendation with the proposition that, under Alabama law, such “show me the note” contentions do not prevent a creditor from attaining possession of property mortgaged as security for repayment of a debt:

“[A]s best the Court can understand it, ... Plaintiffs want Defendants to prove that they have the legal authority to foreclose on the purchased properties before they take such action; these have been referred to as ‘show me the note’ claims. See, e.g., Zambrano v. HSBC Bank USA, Inc., [Civil Action No. 01:09-cv-996] (E.D.Va. May 25, 2010) [not reported in F.Supp.2d]. To this end, Plaintiffs have referenced various laws which the Court will now consider.
“Defendants have argued that Plaintiffs’ fundamental justification for this action is without support as Alabama is a non-judicial foreclosure state and the proof that Farkas seeks is not required .... Alabama statutes set out the procedures for foreclosing on property in this State which do not require the parties to go into court; nothing therein provides for the relief Plaintiffs claim they are due. See Ala.Code [1975], §§ 35-10-11 [et seq.] Plaintiffs have directed this Court’s attention to no law supporting their assertions of ‘show me the note.’ On the other hand, Defendants have pointed to federal court decisions which have rejected such claims in non-judicial foreclosure states. See Zambrano [, supra ]; Pelzel v. First Saving Bank Northwest, [No. C10-5688BHS] (W.D.Wash. September 27, 2010) [not reported in F.Supp.2d]; Diessner v. Mortgage Electronic Registration Systems, 618 F.Supp.2d 1184, 1187 (D.Ariz.2009). Finding those opinions consistent and well-reasoned, coupled with Plaintiffs’ failure to demonstrate any law which supports their assertions, the Court finds that Plaintiffs have not stated a viable claim in asserting that Defendants need to demonstrate ownership of the mortgage note before taking any action against them.
“Plaintiffs have also referenced Article 3 of the [UCC] in asserting Defendants’ need to ‘show them the note’.... Under Alabama law, the UCC is irrelevant to non-judicial foreclosure proceedings (see Ala.Code [1975,] §§ 35-10-11 through 14). Plaintiffs’ claim is without merit.”

The reasoning of the magistrate judge’s report and recommendation, which was adopted by . the presiding district judge as the district court’s own opinion supporting its judgment of dismissal (see Farkas v. Suntrust Mortg., Inc., Civil Action No. 10-0512-CG-M (S.D.Ala. January 5, 2011) (not reported in F.Supp.2d)), was later endorsed in large measure by the United States Court of Appeals for the Eleventh Circuit, which affirmed the district court’s judgment:

“Farkas’s claim that SunTrust had to establish a ‘proof of claim’ under the [UCC] to enforce the promissory note as a ‘negotiable instrument’ did not state a claim for relief under Alabama law. A foreclosure is an action on a mortgage and, as such, is not governed by the [UCC]. See Ala.Code [1975, § ] 7-3-104(a) ... (defining a negotiable instrument); Ala.Code [1975,] §§ 35-10-11 to 35-10-14 ... (Alabama’s foreclosure statute); Triple J Cattle, Inc. v. Chambers, 551 So.2d 280, 282 (Ala.1989) (stating that, upon a default, the mortgagee has various remedies, including obtaining a judgment on the note secured by the mortgage and a separate action to foreclose the mortgage). Alabama’s foreclosure statute sets forth the requirements for conducting a non-judicial foreclosure under the ‘power of sale’ contained in the mortgage, but the statute does not provide a cause of action for a mortgagor to require the mortgagee to establish proof of claim prior to initiating the foreclosure.”

Farkas v. SunTrust Mortg., Inc., 447 Fed.Appx. 972, 973 (11th Cir.2011) (emphasis added).

At a minimum, then, the substantive merits of the Douglases’ “show me the note” attack upon the trial court’s subject-matter jurisdiction are suspect. The Douglases have cited no authority in which a nonjudicial foreclosure has been held invalid for failure to produce or present original documentation evidencing the underlying debt and security for repayment thereof. The record reveals that the bank introduced into evidence at trial various evidentiary exhibits, including photocopies of a note and a mortgage instrument bearing the Douglases’ signatures and the date of February 8, 2008. Because, in this case, we must conclusively presume, in the absence of a trial transcript, that the court’s judgment is supported by the omitted evidence, see Stone v. Stone, 26 So.3d 1228, 1231-32 (Ala.Civ.App.2009), we conclusively presume that the trial court deemed those photocopies sufficient to prove the bank’s right to seek ejectment. See Rule 1003, Ala. R. Evid. (admissibility of photocopies); cf. Ala.Code 1975, § 7-3-309(a) (UCC provision applicable to negotiable instruments setting forth circumstances under which a person is entitled to enforce such an instrument despite lacking possession of it).

Because the Douglases have failed to demonstrate that the trial court, our state’s court of general jurisdiction (see § 142(b), Ala. Const.1901), did not have subject-matter jurisdiction to adjudicate the bank’s ejectment claim, we conclude that the judgment under review is due to be affirmed.

AFFIRMED.

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

      . We would remind the Bench and Bar that Rule 40(a), Ala. R. Civ. P., provides, subject to certain limited exceptions not present in this case, that "[t]he trial of actions shall be set ... at least sixty (60) days before the date set for trial.''

      . The bank has not favored this court with a brief.

      . Moreover, to the extent that the Douglases appear to contend that claimed violations on the part of the bank of the federal Real Estate Settlement Procedures Act, codified at 12 U.S.C. § 2601 et seq., vitiate the bank's right to seek ejectment, we note our recent holding in Coleman v. BAC Servicing, 104 So.3d 195 (Ala.Civ.App.2012), to the contrary; in that case, we said that a foreclosing entity's violations of another federal statute, i.e., the Federal Housing Act, pertaining to loss mitigation “may not be raised as a defense to an ejectment action following a nonjudicial foreclosure.” 104 So.3d at 206.


source: Caselaw Access Project

author: MOORE, Judge. THOMPSON, Presiding Judge,

license: Public Domain

text:
    Theophilus HALL v. Frankie C. HALL.
    2110943.
    Court of Civil Appeals of Alabama.
    Jan. 11, 2013.
    Rehearing Denied March 8, 2013.

      Randall W. Nichols and Shay N. Click of Massey, Stotser & Nichols, PC, Birmingham, for appellant.
    William M. Pompey of Pompey & Pompey, P.C., Camden, for appellee.
   MOORE, Judge.

Theophilus Hall (“the husband”) appeals from the denial of his motion, filed pursuant to Rule 60(b), Ala. R. Civ. P., to set aside a 2004 judgment, entered by the Dallas Circuit Court (“the trial court”). That judgment divorced him from Frankie C. Hall (“the wife”), divided the marital estate, and ordered the husband to pay child support and periodic alimony. The husband also sought to set aside a 2011 judgment entered in a modification action that was resolved during mediation. We dismiss the appeal in part because the trial court lacked subject-matter jurisdiction to enter part of its judgment, and we affirm the remaining portions of the judgment.

Background

On May 14, 2003, the wife filed a complaint in the trial court seeking a divorce from the husband; that complaint was assigned case no. DR-03-118. In March 2004, after the wife was unable to perfect personal service upon the husband via certified mail or via a special process server, the trial court granted the wife’s motion for service by publication on the husband.

On May 24, 2004, the wife requested that the trial court enter a default judgment against the husband. The wife attested in a sworn and notarized affidavit that the husband had failed, after service, to answer or otherwise defend against her complaint and that, to her knowledge, the husband was not on active military duty. The trial court granted the wife’s motion and entered a default judgment of divorce. In that judgment, the trial court ordered the husband, among other things, to pay $766.48 per month as child support for the benefit of the parties’ minor child; to pay an additional $400 per month until a specified child-support arrearage was satisfied; to pay the wife $1,500 per month as periodic alimony; to convey his interest in real property located on Seymore Road in Dallas County to the wife; to pay all the parties’ debts associated with real property located on Church Street in Dallas County; to pay the parties’ marital debts; and to pay the college expenses of the parties’ child, if he attended college. The trial court also awarded the wife one-half of any retirement or pension benefit to which the husband was entitled or had a vested interest in as of the date of the divorce judgment and ordered the husband to pay $3,500 toward the wife’s attorney fees. A wage-withholding order was subsequently issued to the husband’s employer for the purpose of garnishing his wages to comply with his obligations under the divorce judgment.

On September 1, 2010, the husband, through legal counsel, filed a petition in the trial court seeking to modify the 2004 judgment of divorce. In that petition, the husband asserted that, since the entry'of the May 24, 2004, divorce judgment, the parties’ child had reached the age of majority and, therefore, that the wage-withholding order issued by the trial court should be terminated..

The husband also asserted that he had been on active military duty when the wife had filed her divorce complaint; that the wife had known his whereabouts but had chosen not to serve him with the summons and complaint; that he and the wife “had never separated” before she had filed her divorce complaint and, therefore, that he could not have had a child-support arrear-age as established in the trial court’s May 24, 2004, divorce judgment; and that he had not challenged the terms of the May 24, 2004, divorce judgment “because he was willing to provide for the minor child regardless of the deception on the part of the [wife].”

The husband requested that the trial court set aside the child-support provisions of the May 24, 2004, judgment, terminate the wage-withholding order, and “set aside the Order requiring the [husband] to pay $400 per month in arrearages that were never accrued or due in this matter.” The husband’s modification petition was assigned case no. DR-03-118.01.

The wife answered the husband’s modification petition and counterclaimed for contempt, asserting that the husband had not complied with numerous provisions of the May 24, 2004, divorce judgment. She sought “full compliance” with the divorce judgment, interest, and an award of attorney fees. On May 19, 2011, the trial court ordered the parties to mediation.

On July 13, 2011, the parties entered into a “Mediation Settlement Agreement.” Pursuant to the terms of that agreement, the husband and the wife agreed that the husband’s child-support and periodic-alimony obligations should be terminated; that .the husband would maintain a $250,000 life-insurance policy naming the wife as the beneficiary; that the husband would cooperate with the wife’s attorney so that a qualified.domestic relations order (“QDRO”) could be entered; that the, husband would pay to the wife’s attorney $8,600 as attorney fees; and that the husband would pay to the wife a total of $250,000 at a rate .of $1,500 per month to satisfy his child-support and alimony ar-rearages. According to the State Judicial Information System (“SJIS”), on August 5, 2011, the trial court adopted the parties’ settlement agreement and entered it as the judgment of the trial court. An August 12, 2011, entry on SJIS indicates that the .01 action was “disposed on 08/01/2011 by (settled).”

On August 16, 2011, the wife filed a “Verified Motion for Pendente Lite Relief.” In her motion, the wife asserted that the husband -had failed to abide by paragraph 11 of the 2004 divorce judgment, in which the trial court had ordered the husband to pay all the parties’ debts and to indemnify the wife for her payment of such debts. The wife asserted that the husband had refused to make the payments due on a Lexus SC 430 automobile; that the husband had failed to indemnify the wife for payments she had made on that automobile; and that the husband had damaged her credit by failing to timely make the required payments. The wife requested that the trial court order the husband to pay all amounts due on the Lexus automobile, that she be awarded possession of the Lexus automobile, that she be awarded $8,000 in damages for injury to her credit, and that she be awarded attorney fees. Although the wife’s motion appears to assert a new contempt claim against the husband, there is no indication that the wife paid a filing fee at the time she filed that motion, and the motion was docketed under case no. DR-03-118.01.

On August 23, 2011, without a hearing, the trial court ordered the husband to immediately turn over possession of the Lexus automobile to the wife and to immediately make all back payments owed on “both cars” to the wife. The trial court also scheduled a hearing for the husband to show cause why further relief should not be granted to the wife.

On August 24, 2011, the husband filed a “Motion to Vacate Judgment.” In that motion, the husband asserted that the 2004 divorce judgment was void for lack of personal jurisdiction over him. The husband also asserted that, because the 2004 divorce judgment was void, the August 2011 judgment, entered on the parties mediation agreement, also was void.

On October 25, 2011, the wife amended her motion for pendente lite relief; in that amended motion, she requested that the trial court exercise jurisdiction over the Lexus automobile. On that same date, the husband opposed the wife’s motion for pendente lite relief, as amended, asserting that the trial court had no jurisdiction over the Lexus automobile because it had not been part of the marital estate, it had been purchased after the divorce had been finalized, and, assuming that the parties’ mediation agreement was valid and binding upon the parties, that agreement did not require the husband to pay for the Lexus automobile. The husband requested that the trial court impose sanctions against the wife for the filing of her motion for pen-dente lite relief, which the husband characterized as frivolous; he also sought an award of attorney fees.

On November 11, 2011, the parties entered into a written stipulation agreeing to extend the time for the trial court to rule on the husband’s motion to vacate the divorce judgment. On December 19, 2011, the wife filed a motion to compel the husband to “Comply with Previous Court Order.” She asserted that, in September 2011, the trial court had ordered the husband to immediately turn over possession of the Lexus automobile to the wife and to make all back payments owed on it. The wife asserted that the husband had failed to comply with that September 2011 order, and she requested that the trial court order him to immediately pay Wells Fargo, which had repossessed the Lexus, and, if the husband failed to do so, to take certain other specified actions to secure the debt owed on that automobile. The following day, on December 20, 2011, the trial court granted the wife’s motion to compel.

On January 13, 2012, the husband filed a motion to vacate the December 20, 2011, order. On March 26, 2012, the trial court conducted a hearing on the husband’s pending motions to vacate; at that hearing, only the husband testified. At the conclusion of the hearing, the trial court requested that the parties submit letter briefs addressing the pertinent issues. The husband submitted his letter brief, and, on April 10, 2012, the wife filed a response thereto, attaching numerous supporting exhibits. On April 16, 2012, the husband moved to strike certain of the wife’s exhibits.

On May 16, 2012, the trial court entered a judgment denying “[the husband’s] motion to vacate and/or modify.” On that same date, the trial court entered a separate order denying the husband’s motion to strike the exhibits attached to the wife’s letter brief. The husband timely appealed to this court.

Denial of Motion to Vacate the 2001 Divorce Judgment

We first address the denial of the husband’s motion to vacate the 2004 divorce judgment as void for lack of personal jurisdiction.

“Rule 60(b)(4), Ala. R. Civ. P., provides for relief from a judgment when that judgment is void. Generally, this Court reviews a trial court’s ruling on a Rule 60(b) motion to determine whether the trial court exceeded its discretion. However, with regard to Rule 60(b)(4), this Court has stated:
“ ‘The standard of review on appeal from the denial of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process. Satterfield v. Winston Industries, Inc., 553 So.2d 61 (Ala.1989).’
“Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991). In other words, if the underlying judgment is void because the trial court lacked subject-matter or personal jurisdiction or because the entry of the judgment violated the defendant’s due-process rights, then the trial court has no discretion and must grant relief under Rule 60(b)(4). This Court reviews de novo the trial court’s decision on a Rule 60(b)(4) motion to set aside a judgment as void, because the question of the validity of a judgment is a question of law. Orix Fin. Servs., Inc. v. Murphy, 9 So.3d 1241, 1248 (Ala.2008)(Murdock, J., concurring specially). Notwithstanding our de novo review, in his special writing in Orix, Justice Murdock recognized that when a trial court, in ruling on a Rule 60(b)(4) motion, makes factual findings implicating the ore tenus rule, the trial court’s factual findings are entitled to some deference by this Court. In Ethridge v. Wright, 688 So.2d 818 (Ala.Civ.App.1996), the Court of Civil Appeals applied the ore tenus rule to oral testimony heard by the trial court regarding service of process challenged pursuant to Rule 60(b)(4).”

Allsopp v. Bolding, 86 So.3d 952, 957-58 (Ala.2011).

The husband asserts that, in 2003, when the wife filed her complaint seeking a divorce and, in 2004, when the wife purported to serve him by publication, he was a nonresident of Alabama and that a trial court could not obtain personal jurisdiction over a nonresident defendant via service by publication. We agree.

In Braley v. Horton, 432 So.2d 463, 465 (Ala.1983), our supreme court recognized that Rule 4.3, Ala. R. Civ. P., authorizes service by publication only on resident defendants. In Shaddix v. Shaddix, 603 So.2d 1096 (Ala.Civ.App.1992), the Court of Civil Appeals addressed the prohibition against service by publication on nonresident defendants, stating the following:

“It must here be admitted that reading and interpreting Rules 4.2 and 4.3, A[la]. R. Civ. P., in pari materia is a difficult venture. Moreover, it is not readily apparent from Braley[ v. Horton, 432 So.2d 463 (Ala.1983),] and other judicial attempts at construing these rules whether the injunction against service by publication applies where the plaintiff asserts simply that the defendant’s residence is unknown, but the defendant is, as a matter of fact, a nonresident. However, statements by our supreme court since Braley tend to indicate that service by publication is permissible only where a resident defendant has avoided service and cannot be located or where service is sought upon a corporation having one of its principal places of business within the state. See Wise v. Siegel, 527 So.2d 1281 (Ala.1988). Further, it would seem that the limits of constitutional due process militate against service by publication as a mechanism for acquiring personal jurisdiction over a nonresident defendant in an in personam proceeding. See Alabama Waterproofing Co. v. Hanby, 431 So.2d 141 (Ala.1983).”

Shaddix, 603 So.2d at 1098. Based on Braley and Shaddix, we agree with the husband that the trial court lacked personal jurisdiction over him at the time it entered the default judgment in 2004. That conclusion, however, does not resolve the issues before this court.

“A defense alleging a lack of personal jurisdiction because of insufficiency of service of process, however, can be waived if the defendant submits himself or herself to the jurisdiction of the trial court.” Klaeser v. Milton, 47 So.3d 817, 820 (Ala.Civ.App.2010) (citing Rule 12(h)(1), Ala. R. Civ. P.). In Klaeser, supra, a trial court entered a default judgment in favor of the father on February 29, 2008. Id. at 819. In May 2008 and in November 2008, the mother communicated with the trial court, notifying the court that she was in active military service and contesting the amount of child support awarded to the father in the default judgment. Id. After a hearing, the trial court denied the mother’s “contest” of the default judgment and denied her request for relief. Id. at 819-20.

The mother subsequently filed a motion, pursuant to Rule 60(b)(4), Ala. R. Civ. P., to vacate the default judgment, asserting, among other things, that the default judgment was void for lack of personal jurisdiction. Id. After the trial court denied that motion, the mother appealed. This court affirmed the denial of the mother’s Rule 60(b)(4) motion, recognizing that the mother had made a general appearance in the trial court after the entry of the default judgment and that she had failed to challenge personal jurisdiction at her earliest opportunity following the entry of the default judgment. Id. at 821. This court stated as follows:

“In Kingvision Pay-Per-View, Ltd, v. Ayers, 886 So.2d 45, 53 (Ala.2003), the Alabama Supreme Court quoted approvingly from Lonning v. Banning, 199 N.W.2d 60, 62 (Iowa 1972), for the proposition that:
“ ‘ “The rules which govern our consideration of this case are well established. The filing of a pleading is a general appearance. Rule 65(c), Rules of Civil Procedure. Jurisdiction of the person in a civil case may be acquired by service of notice in the manner and form prescribed by law, or by defendant’s general appearance. A general appearance is a waiver of notice and if a party appears in person or by attorney he submits himself to the jurisdiction of the court. He may not thereafter avoid that jurisdiction by special appearance.” ’

“This statement is in accord with earlier Alabama cases that hold that a- defendant waives the defense of improper service of process if that defendant does not raise the issue in his or her first appearance following the entry of a default judgment. In Pridgen v. Head, 282 Ala. 193, 198, 210 So.2d 426, 430 (1968), the Alabama Supreme Court stated:

“ ‘In Aetna Ins. Co. v. Earnest, 215 Ala. 557, 112 So. 145 [(1927)], [the Alabama Supreme Court] quoted approvingly from 4 Corpus Juris, Appearances, § 64, p. 1364, as follows:
“ ‘ “Where a judgment has been rendered by the court without jurisdiction of the person, a general appearance after such judgment waives all objection to the jurisdiction of the court over the person. Thus a general appearance by defendant after final judgment waives any and all defects and irregularities in the service of process and return, just as fully as it does where such appearance is entered before final judgment.”
“ ‘In the Aetna Ins. Co. case, supra, [the Alabama Supreme Court] pointed out that in the same text (§ 65, p. 1365) many cases were cited to the proposition that: “As to the immediate parties to the action, a general appearance validates a judgment that was theretofore absolutely void for want of jurisdiction.” ’ ”

Klaeser, 47 So.3d at 821 (citations to Iowa cases omitted).

The Klaeser case is strikingly similar to the present one. In this case, the trial court entered a default judgment in 2004, and, in 2010, the husband filed a petition to modify that default judgment. In his modification petition, the husband sought to terminate the child-support obligation imposed on him by virtue of the 2004 default judgment; the husband did not challenge the sufficiency of service of process or the trial court’s lack of personal jurisdiction over him in 2004. At the time the husband filed his 2010 modification petition, he was represented by legal counsel. Nothing in the husband’s 2010 modification petition placed the trial court or the wife on notice that the husband intended to challenge the trial court’s exercise of personal jurisdiction over him, as did the father in Hubbard v. State ex rel. Hubbard, 625 So.2d 815 (Ala.Civ.App.1993), on which the husband relies. We, therefore, find the present case distinguishable from Hubbard, supra.

Because the husband failed to challenge the trial court’s jurisdiction over him in his first appearance following the entry of the 2004 default judgment, he is deemed to have made a general appearance and to have waived that defense. As a result, the trial court’s denial of his Rule 60(b)(4) motion, seeking to vacate the 2004 default judgment, as well as the 2011 judgment entered on the parties’ mediation agreement, is due to be affirmed. In light of our resolution of this issue, we pretermit consideration of the husband’s challenge to th'e trial court’s denial of his motion to strike the wife’s exhibits from evidence.

Denial of Motion To Vacate the December 2011 Judgment

Although on appeal the husband has not specifically addressed the trial court’s denial of his motion to vacate the trial court’s December 20, 2011, judgment, we must consider whether this court has jurisdiction to review that judgment. “ ‘[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Singleton v. Graham, 716 So.2d 224, 225 (Ala.Civ.App.1998) (quoting Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997), quoting in turn Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). “ ‘ “[Subject-matter jurisdiction may not be waived; a court’s lack of subject-matter jurisdiction may be raised at any time by any party and may even be raised by a court ex mero motu.’”” M.B.L. v. G.G.L., 1 So.3d 1048, 1050 (Ala.Civ.App.2008) (quoting. S.B. U. v. D.G.B., 913 So.2d 452, 455 (Ala.Civ.App. 2005),. quoting in turn C.J.L. v. M.W.B., 868 So.2d 451, 453 (Ala.Civ.App.2003)).

On August 16, 2011, when the wife filed her request for pendente lite relief and sought an order compelling the husband to comply with paragraph 11 of the 2004 dh vorce judgment, no action remained pending before the trial court. The trial court had disposed of the husband’s modification petition and the wife’s counterclaim on August 5, 2011, by entering a judgment on their mediation agreement. Additionally, the wife raised new issues that had not previously been asserted before the trial court. The wife, however, paid no filing fee at the time she filed her request for pendente lite relief or her motion to compel.

Although the trial court purported to consider and rule upon those additional pleadings during 2011 and 2012, those pleadings were nullities because they purported to initiate a new contempt action that should have been assigned a “.02” suffix by the trial court’s clerk and that would have required the payment of a new filing fee. See M.M. v. B.L., 926 So.2d 1038, 1041-42 (Ala.Civ.App.2005) (dismissing father’s appeal taken from a judgment purportedly entered on grandparents’ adoption petition because the petition was not properly filed in the action pending at that time before the juvenile court, the petition was not served on the father as required by the Alabama Rules of Civil Procedure, and no filing fee was paid, which was required to initiate a new action; as a result, the juvenile court lacked subject-matter jurisdiction to grant the adoption petition); and Farmer v. Farmer, 842 So.2d 679, 681 (Ala.Civ.App.2002) (father’s appeal was dismissed for lack of jurisdiction because a custody-modification petition could not substitute for a post-judgment motion and father had failed to pay a filing fee and had failed to properly serve mother with his custody-modification petition, which were required since the custody-modification petition would have initiated a new action). Cf. T.B. v. T.A.P., 979 So.2d 80, 91 (Ala.Civ.App.2007) (Pittman, J., dissenting) (recognizing that motions seeking relief under Rule 60(b), Ala. R. Civ. P., are deemed filed in the previous action and do not initiate a new action); and Moore v. Moore, 849 So.2d 969, 970 (Ala.Civ.App.2002) (recognizing a distinction between Rule 60(b) motions and a modification petition, the latter of which requires the payment of a filing fee).

As a result of the nonpayment of the filing fee, the trial court acquired no subject-matter jurisdiction over the issues raised in the wife’s August and December 2011 filings. Therefore, the trial court’s December 20, 2011, judgment, which purported to grant the wife’s motion to compel, is void and of no effect; the trial court’s May 16, 2012, judgment, to the extent it denied the husband’s motion to vacate that December 20, 2011, judgment is likewise void and of no effect. Because a void judgment will not support an appeal, we dismiss that portion of the husband’s appeal to the extent it seeks review of the denial of his motion to vacate the December 20, 2011, judgment, albeit with instructions to the trial court to vacate its December 20, 2011, judgment.

APPEAL DISMISSED IN PART WITH INSTRUCTIONS; AFFIRMED.

PITTMAN and BRYAN, JJ„ concur.

THOMPSON, P.J., concurs in part and dissents in part, with writing.

THOMAS, J., recuses herself.

THOMPSON, Presiding Judge,

concurring in part and dissenting in part.

I concur with that portion of the opinion affirming the trial court’s denial of the husband’s motion filed pursuant to Rule 60(b)(4), Ala. R. Civ. P. However, I respectfully dissent from that portion of the opinion holding that the trial court’s rulings on the mother’s request for pendente lite relief and her motion to compel were void for lack of subject-matter jurisdiction because the mother failed to pay a filing fee.

      . On February 22, 2011, the husband also filed a "Motion to Temporarily Set Aside Order of Child Support.” In that motion, the husband asserted that the parties’ child had reached the age of majority as of November 13, 2008, and that, as a result, his child-support obligation should be terminated.

      . We express no opinion as'to the propriety of the trial court’s December 20, 2011, judgment, had the wife paid the necessary filing fee.


author: MOORE, Judge.

text:
    HUNTSVILLE CITY BOARD OF EDUCATION v. Ann FRASIER et al.
    2110427.
    Court of Civil Appeals of Alabama.
    Feb. 22, 2013.

      William W. Sanderson of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellant.
    Jake Watson of Watson Graffeo, Huntsville; Brian Austin Oakes of White & Oakes, LLC, Decatur; and Quicha Riche, Huntsville, for appellees.
   On Application for Rehearing

MOORE, Judge.

This court’s opinion of November 30, 2012, is withdrawn, and the following is substituted therefor.

The Huntsville City Board of Education (“the HCBOE”) appeals from a hearing officer’s decision reversing the HCBOE’s action terminating the employment of Ann Frasier, Jodie Lindstrom, Johnna Lamelle, Rene Robinson, Deborah Hatton, Bryant Benson, Anthony McCurdy, Freeman Milton, Tracy Powell, Anthony Crutcher, Garrison Friend, Patty Smith, David Yarbor-ough, Carl Ford, Harvey Fisher, Jimmy Cobble, and Steve Berryhill (hereinafter referred to collectively as “the appellees”).

Procedural Background

On April 25, 2011, Dr. Ann Moore, who was at that time the superintendent of the HCBOE, gave notice to each of the appel-lees and to the HCBOE of her intent to recommend the termination of their services due to a “justifiable decrease in jobs in the system or other good and just causes.” The notices further stated, in pertinent part:

“Due to financial circumstances, the [HCBOE] must reduce the number of its employees. To accomplish this, the [HCBOE] has adopted a Reduction in Force Plan. The selection of the employees to be terminated is based upon the job classifications affected by the Reduction in Force Plan and years of service within the Huntsville School System (those with fewer years of service in each specifically identified area to be terminated before those with greater seniority).”

In response to Dr. Moore’s notices, the appellees contested their proposed terminations, as was their right under former § .36-26-102, Ala.Code 1975, a part of the former Fair Dismissal Act (“the FDA”), former § 36-26-100 et seq., Ala.Code 1975. Pursuant to conferences held by the HCBOE on May 17 and 18, 2011, the HCBOE voted to approve the recommended terminations. Each of the appel-lees contested the HCBOE’s decision in a consolidated hearing on October 24 and 25, 2011. On January 26, 2012, the hearing officer entered a decision reversing the HCBOE’s decision, concluding that no action should be taken against the appellees.

On February 3, 2012, the HCBOE filed a notice of appeal from the hearing officer’s decision. After concluding that the HCBOE presented “special and important reasons” for the appeal, see former § 36-26-104(b), Ala.Code 1975, this court accepted the appeal on June 19, 2012.

Evidentiary and Statutory Background

In 2006, the Alabama Legislature passed the School Fiscal Accountability Act (“the SFAA”). See § 16-13A-1 et seq., Ala. Code 1975. The SFAA mandates that all local boards of education adopt, and operate under, sound fiscal-management policies, § 16-13A-1, including establishing and maintaining a reserve fund equal to one month’s operating expenses. § 16-13A-9, Ala.Code 1975. To assure compliance, the SFAA provides for the appointment of local financial officers to verify and report on the financial transactions of each board of education. § 16-13A-4, Aia. Code 1975. The various financial reports are collected and analyzed by the Chief Financial Officer (“CFO”) of the State Board of Education. § 16-13A-2, Ala. Code 1975. If, upon analysis of the financial reports, it is determined that a local board of education is operating in a fiscally unsound manner, the CFO must provide assistance to restore the financial integrity of that local board of education. Id. In some cases, the CFO can recommend to the Superintendent of the State Board of Education (“the State Superintendent”) that he or she appoint a person to provide on-site continuous advice on day-to-day financial operations. Rule 290-4-1-.01, Ala. Admin. Code (State Bd. of Educ.). In extreme cases, when such continuous assistance does not remedy the situation, the State Board of Education, upon the recommendation of the CFO and the State Superintendent, may authorize the State Superintendent to assume direct control of the finances of a local board. Rule 290-4-1 — .01(d), Ala. Admin. Code (State Bd. of Educ.).

After the enactment of the SFAA, Dr. Warren Craig Pouncey assumed the duties of the CFO. Dr. Pouncey testified that the HCBOE was almost immediately placed under watch for its financial practices. On November 30, 2007, Dr. Pouncey wrote Dr. Moore a letter advising her that the HCBOE should take corrective measures in order to avoid further deteriorating finances. Despite that warning, by 2010, the HCBOE’s financial records showed that it had incurred financial obligations exceeding its ability to pay by approximately $20 million and that the HCBOE had not maintained a reserve fund of approximately $16 million as required by § 16-13A-9. Dr. Pouncey issued a report to the HCBOE in December 2010 indicating that the HCBOE had experienced a shortfall of $35,803,051 for the fiscal year 2009. In his deposition, Dr. Pouncey attributed that shortfall to a decrease in funding due to several years of state pro-ration of budget funds and diminishing local tax revenue, as well as to the failure of the HCBOE to make equivalent and anticipatory cuts in expenditures, particularly in regard to staffing, which, according to Dr. Pouncey, composed 86% to 87% of the HCBOE’s budget. Dr. Pouncey recommended that the HCBOE take various actions to cure its financial problems, including reducing its support staff from 1,100 positions to 850. Dr. Pouncey testified that, if the HCBOE had not acted as requested, “the State Board would have officially intervened and taken over control of the district” and made the necessary personnel cuts.

The HCBOE adopted an initial reduction-in-force (“RIF”) plan in February 2011, terminating the employment of, among others, 137 probationary support staff, i.e., support workers who had not yet been employed for 3 continuous years. After that RIF plan was adopted, the HCBOE retained Dr. Ed Richardson, a former Superintendent of the State Board of Education, as a consultant. Dr. Richardson, who also testified by deposition, agreed with Dr. Pouncey that the HCBOE had had “no other choice” but to reduce personnel. Dr. Pouncey and his office worked with Dr. Richardson to develop a plan to further reduce the support personnel and other personnel expenses of the HCBOE in a manner that was least likely to impact classroom instruction. Dr. Pouncey developed a list of positions that Dr. Richardson should investigate for possible employment action. Dr. Richardson then met with many of the heads of the various departments within the school system regarding how many, and which, of their support personnel would lose their jobs.

Three of the supervisors with whom Dr. Richardson had conferred testified before the hearing officer. Belinda Williams, the director of the HCBOE’s human-resources department, testified that she had not agreed with Dr. Richardson on the number of positions that could be eliminated in her department, but, she said, Dr. Richardson “would not budge” on his proposal to terminate the employment of two support employees in addition to the two support employees who had already lost their jobs under the initial RIF plan.

Marc Seldon, the materials coordinator for the HCBOE, testified that he managed several areas for the HCBOE, including its warehouse and, at one time, its landscaping department. Seldon testified that he had provided Dr. Richardson with an outline of the potential savings the HCBOE could expect from contracting landscaping services to outside contractors and that he had also discussed the impact of any reduction in the workforce employed in the warehouse area. Dr. Richardson had thereafter recommended eliminating the positions of all the landscape workers and inventory clerks, as well as some of the warehousemen. Seldon testified that he was not happy with Dr. Richardson’s decision and that he’ felt like the decision had been made without a clear understanding of what those positions accomplished for the HCBOE. Seldon stated that the plan had targeted more positions for elimination from his departments “than [he] would have liked.”

John Brown, the director of construction, maintenance, facilities, transportation, and safety for the HCBOE, testified that Dr. Richardson had informed him that his departments would be heavily affected by job cuts. According to Brown, Dr. Richardson had asked 'him to look at all the positions he supervised and determine which positions Brown considered to be nonessential. Brown testified that he had identified only one nonessential position— building-equipment operator — because, he said, it had become “archaic.” Dr. Richardson ultimately recommended terminating from Brown’s departments three of the four painter positions, all of the mechanics, three of four data-entry technicians, the lone welder, and at least two carpentry apprentices. Brown testified that he felt like the recommendations had been made hastily and without complete information and that, in some cases, they would not produce an efficient outcome.

Dr. Richardson did not personally meet with any of the appellees or review firsthand the appellees’ performance of their positions. Each appellee who testified stated that his or her job was essential to the proper functioning of the school system and that his or her job responsibilities would still have to be performed by someone. In most instances, no specific person had been identified to assume the duties of the appellees. In other cases, Dr. Richardson had recommended hiring independent contractors to perform the duties of the eliminated positions. The appellees presented some evidence, particularly in regard to automobile-mechanic work, indi-eating that it could cost the HCBOE more to hire independent contractors.

After his meetings, Dr. Richardson recommended that, overall, the employment of 45 additional probationary support staff and 77 nonprobationary support employees, i.e., employees with 3 or more years of continuous service, be terminated. Dr. Richardson testified that he had had to make the difficult decisions necessitated by the HCBOE’s financial condition to eliminate more positions than the supervisors had recommended. Working in coordination with Williams, and using the HCBOE’s RIF plan, which had been in effect since 1979, Dr. Richardson proposed a supplement RIF plan and created a list of those support employees whose employment he recommended for termination, including the appellees, all of whom are nonprobationary employees. Dr. Richardson testified that he had projected that the HCBOE would save approximately $3.1 million annually in support-personnel costs by implementing the supplemental RIF plan. According to Dr. Pouncey, following implementation of the supplemental RIF plan, the HCBOE would be spending $492 per pupil for support personnel, which, he said, would put the HCBOE in line with other school boards.

Dr. Moore presented the proposed supplemental RIF plan to the HCBOE, which adopted the plan through a meeting and vote held on April 21, 2011. Williams testified that the HCBOE had based its decision to terminate the employment of the employees on the best information that was available, indicating that the terminations were necessary for economic reasons and that the terminations would help the HCBOE reach a position of fiscal accountability.

In his deposition, Dr. Richardson testified that the terminations under the initial and supplemental RIF plans, along with other cost-savings measures, would result in approximately $46 million in savings over a two-year period. Dr. Richardson testified that the State Board of Education wanted the HCBOE to save as close to $40 million as possible over that two-year period in order to stave off intervention. Near the end of his deposition, Dr. Richardson testified as follows on direct examination:

“[Counsel for the HCBOE]: With regard to the requirement of the ... [State Board of Education] in order to avoid State take-over was to reduce that 38 to 40 million dollars that it needed to recover. Am I correct?
“Dr. Richardson: That’s it in a nut- ■ shell.”

He also testified on cross-examination:

“[Appellees’ counsel]: And that was a statement of you need to cut 40 million dollars or face State take-over, correct?
“Dr. Richardson: Yes, you need to make those substantial cuts. Now, if it came out to be 38.5, we wouldn’t have probably quibbled, but they had to be really close to that number.
“[Appellees’ counsel]: The key was to save 40 million dollars or you’re subject • to State take-over?
“Dr. Richardson: That’s right.”

After the HCBOE adopted the supplemental RIF plan, it hired a new superintendent, Dr. Casey Wardynski. Dr. Wardynski, in turn, hired several new administrators to either fill vacant positions or serve the HCBOE as administrators in a reorganized leadership structure. In one instance, Dr. Wardynski split one job into two new positions.- He also created a job entitled “Director of Transition.” Those positions increased the costs for support staff. Additionally, approximately one month after the supplemental RIF plan was adopted, the HCBOE rehired Lee Edminson, who had been a probationary employee. Brown testified that Edminson acted as a liaison for the HCBOE on ongoing large construction projects and that his expertise had enabled the HCBOE to save hundreds , of thousands, if not millions, of dollars in construction costs. Brown testified that the HCBOE, had advertised the job opening and that Brown had interviewed four candidates before eventually rehiring Edminson at his former salary.

The Hearing Officer’s Decision

The hearing officer made the following findings of fact. The duties performed by the appellees would still have to be performed by others upon their discharge. Although the HCBOE had plans to fill some of the positions by retained employees or to reassign or redistribute the job duties, those plans were, for the most part, vague and undeveloped and did not include an assessment of the new costs that would be incurred by the HCBOE. Likewise, the HCBOE presented no evidence as to the costs associated with hiring contractors to perform necessary welding and painting services. As for using contractors to perform landscaping, mechanic, and locksmith work, the hearing officer noted that the evidence indicated that it would actually cost the HCBOE more for the same work.

In his conclusions of law, the hearing officer determined that the HCBOE had asserted two reasons for seeking to terminate the employment of the appellees — a justifiable decrease in jobs and other good and just cause — neither of which phrases had been defined for purposes of the FDA. The hearing officer noted that Alabama law defines “good cause” as “ ‘ “any ground put forward by a school committee in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the committee’s task of building up and maintaining an efficient school system.” ’ ” See Ellenburg v. Hartselle City Bd. of Educ., 349 So.2d 605, 609 (Ala.Civ.App.1977) (quoting 68 Am.Jur.2d Schools § 188). Based on that definition, the hearing officer reasoned that the HCBOE “must provide sufficient proof that it was suffering a severe financial hardship, that the actions taken were in response to that hardship, and that it is reasonably likely that the actions will improve the financial condition of the [HCBOE].”

The hearing officer assumed, “without deciding,” that the HCBOE was suffering a severe financial hardship, but he decided that the HCBOE had failed to prove “by sufficient evidence that the action taken in response to this hardship is a necessary and reasonable step designed to directly improve [its] financial position....” The hearing officer recognized that, by terminating the employment of the appellees, the HCBOE would reduce its obligation to pay their associated payroll expenses; however, he also recognized that the HCBOE had not proven that it would actually save money from those terminations because the HCBOE had not proven “that the work done by the [appellees] would either be performed by reassigned staff with no diminution in their ability to perform their original tasks, that the work could be outsourced or subcontracted at a reduced price, or that some or all of the [appellees]’ tasks could be eliminated.” Based on the testimony of Brown and Sel-don, the hearing officer concluded that the HCBOE would realize “little or no cost savings” from the proposed terminations.

The hearing officer further determined that the HCBOE had failed to prove that the terminations of the employment of the appellees was mandated by financial concerns. The hearing officer noted that the HCBOE had a shortfall of approximately $36 million and that Dr. Richardson had testified that a savings of $40 million over two years would be adequate to address that shortfall. Therefore, the hearing officer concluded, any savings beyond that amount “exceeded the ‘due to financial circumstances’ rationale given in the notice[s] of intent to terminate.” The hearing officer determined that “budget cuts already made and excluding in their entirety [the proposed terminations under the supplemental RIF plan] would have been sufficient to achieve this goal of $40 million over two years.”

Finally, the hearing officer rejected the HCBOE’s argument that it was overstaffed in comparison with other local school boards within the state because the HCBOE had not included in its notices to the appellees the allegation that overstaff-ing had contributed to its financial hardship. Moreover, the hearing officer stated that the HCBOE had proven only that the HCBOE had more staff than other similarly sized school districts within the state. The hearing officer also noted that the HCBOE “did not present evidence of any other circumstances on which the [hearing officer] can conclude that they are similarly situated nor did it present any qualitative evidence that those other systems were on sounder financial footing.”

Issues on Appeal

The HCBOE argues on appeal that the hearing officer’s decision was arbitrary and capricious because he applied the wrong burden of proof and incorrectly assessed the issue to be decided. The HCBOE also argues that the hearing officer erred in concluding that the HCBOE gave the appellees insufficient legal notice of the reason for their proposed terminations. We consider those issues out of order.

Notice

The FDA provided that a notice of intent to terminate “shall state the reasons for the proposed termination, shall contain a short and plain statement of the facts showing that the termination is taken for one or more of the reasons listed in [former] § 36-26-102, [Ala. Code 1975,] and shall state the time and place for the ... meeting on the proposed termination .... ” Ala.Code 1975, former § 36-26-103(a). Any notice intended to comply with former § 36-26-103 must satisfy due process by being reasonably calculated to alert the affected employee of the grounds for termination upon which an employing board is relying so that the employee has a reasonable opportunity to defend against those grounds. Bishop State Cmty. Coll, v. Archible, 33 So.3d 577, 582 (Ala.Civ.App. 2008), overruled on other grounds, Ex parte Soleyn, 33 So.3d 584 (Ala.2009).

In this case, the HCBOE sent letters to the appellees stating that it proposed to terminate their employment due to a “justifiable decrease in jobs in the system.” Former § 36-26-102. As to the factual underpinnings for that statutory reason, the HCBOE cited “financial circumstances” without further elaboration. Nevertheless, during the hearing, the attorneys representing the appellees stipulated “that [the appellees] were afforded whatever due process they were required under the [FDA],” including “that the notice was properly given.” That stipulation effectively removed from consideration any argument that the HCBOE had not adequately informed the appellees of the “financial circumstances” that had led to their proposed terminations. See George H. Lanier Mem’l Hosp. v. Andrews, 901 So.2d 714 (Ala.2004) (recognizing that stipulation relieves opposing party from establishing an element of a claim).

Notably, the hearing officer did- not conclude that the HCBOE’s use of the general phrase “financial circumstances” failed to reasonably notify the appellees of the precise financial condition of the HCBOE or that the notices failed to apprise the appel-lees that economic events had necessitated the supplemental RIF plan under which the appellees’ employment would be terminated. The hearing officer actually addressed those issues, implying that he had honored the stipulation made by the attorneys for the appellees acknowledging that the appellees had been properly notified that their employment was being terminated for financial reasons.

The hearing officer addressed the issue of lack of proper notice only as to “over-staffing,” treating that problem as if it constituted an independent and separate ground from the “financial circumstances” referred to in the notices. The hearing officer specifically stated that, because ov-erstaffing might not cause financial difficulties, the reference in the notices to “financial circumstances” did not adequately inform the appellees that the HCBOE intended to terminate their employment in order to reduce its support staffing to levels comparable with other local boards of education. Based on Ex parte Soleyn, supra, in which the Alabama Supreme Court held that the notice of intent to terminate must be sufficient to apprise the employee of the facts supporting the grounds for termination without referencing “surrounding circumstances,” the hearing officer reasoned that the HCBOE could not rely on overstaffing as a separate ground for termination.

The HCBOE did not, however, assert “overstaffing” as an independent reason for terminating the employment of the ap-pellees. The HCBOE presented evidence from Dr. Pouncey indicating that the HCBOE maintained far more staff than other local boards of education, resulting in per-pupil personnel expenses of more than double many other school boards according to at least one exhibit in the record. Dr. Pouncey testified that the HCBOE had been able to at least absorb those costs in “flush” times, but, he said, when the economy took a downturn, resulting in decreased tax revenues available for school funding and consecutive years of statewide proration, the HCBOE had incurred a $20-million budget deficit by failing to reduce its personnel costs and other expenditures accordingly. Dr. Pouncey testified that overstaffing was one of the main factors that had led to the financial circumstances facing the HCBOE. Dr. Pouncey also testified that, after he had identified overstaffing as a primary component of the fiscal crisis facing the HCBOE, he concluded that the HCBOE could resume a sound financial condition only by reducing its personnel expenses.

Rather than simply slash personnel indiscriminately until the shortfall could be covered, Dr. Richardson had determined that personnel expenses should be reduced only insofar as those reductions affected classroom performance as minimally as possible. Dr. Pouncey testified that he and his staff had researched the per-pupil personnel expenses of other local boards of education within the state and had found that those boards were delivering educational services to their students at a rate of less than half the personnel costs of the HCBOE. Dr. Richardson testified that the HCBOE was not producing above-average educational results due to its increased personnel expenses but was actually producing results on par with other school systems spending far less funds. That testimony shows that the HCBOE effectively used the financial structure of other local boards of education as a target to measure the amount of personnel expenses the HCBOE could safely reduce in order to resolve its deteriorating financial condition without compromising its educational mission. Hence, reducing staff numbers to comparable statewide levels was only a part of the solution to the financial crisis facing the HCBOE and was not an independent goal in and of itself.

Given all the circumstances in this case, we hold that no evidence supports the hearing officer’s determination that the HCBOE relied on overstaffing as a separate ground for terminating the employment of the appellees such that it should have expressly notified the appellees of that justification. The hearing officer acted arbitrarily and capriciously in finding otherwise. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (holding that a decision of a hearing officer must not be made arbitrarily and capriciously but must be based on some evidence); see also Ex parte Soleyn, supra (holding that arbitrary-and-eapricious standard of review applies to factual determinations of hearing officers in FDA cases). We thus proceed with our review of the remainder of the HCBOE’s appeal to determine whether the hearing officer had sufficient other grounds for rejecting the proposed termination of the employment of the appellees.

Justifiable Decrease in Jobs'

The HCBOE relied on a “justifiable decrease in jobs” as the sole ground for terminating the employment of the ap-pellees. Alabama law has not specifically defined that phrase. Through legal parlance, a decrease in jobs is “justifiable” when a school board is capable of providing a good reason for reducing or eliminating the number of positions or the number of employees within each position. See Black’s Law Dictionary 944" (9th ed. 2009) (defining “justifiable” as “[cjapable of being legally or morally justified; excusable; defensible”). An adverse change in the financial circumstances of a school board constitutes a sufficient good reason justifying a decrease in jobs. See, e.g., Board of Sch. Comm’rs of Mobile Cnty. v. Christopher, 97 So.3d 163 (Ala.Civ.App.2012) (school board experienced deteriorating financial condition due to state proration); Mobile Cnty. Bd. of Sch. Comm’rs v. Long, 46 So.3d 6 (Ala.Civ.App.2010) (board terminated employment of programmer through RIF necessitated by financial crisis); Glass v. Anniston City Bd. of Educ., 957 So.2d 1143 (Ala.Civ.App.2006) (board eliminated job of attendance officer, which was locally funded, after receiving over $500,000 less in funding from city than in prior years); and Woodham v. Alabama Aviation & Tech. Coll., 537 So.2d 934, 935 (Ala.Civ.App.1988) (recognizing, without directly deciding the propriety of the ac: tion, that college’s decision to close cafeteria that had consistently lost money for years in order to lease the foodrservice facility or to contract for food service justified termination of cafeteria manager).

When a board of education cites a justifiable decrease in jobs as a basis for discharging a nonprobationary employee, “the only pertinent inquiry [i]s whether there was a ‘justifiable decrease in the number of [jobs].’ ” Williams v. Board of Educ. of Lamar Cnty., 263 Ala. 372, 375, 82 So.2d 549, 552 (1955) (construing analogous provision of former Teacher Tenure Act). As part of that inquiry, the burden of proof rests on the school board to prove a “justifiable decrease in jobs.” See Tipton v. Board of Educ. of Blount Cnty., 276 Ala. 571, 574, 165 So.2d 120, 123 (1964) (holding that board that had failed to produce any evidence of justifiable decrease in jobs could not rely on that ground for terminating employment of teacher); see also Whitney v. Board of Sch. Trs. of DeKalb Cnty. Eastern Cmty. Sch. Dist., 416 N.E.2d 1289 (Ind.Ct.App.1981) (mere recitation in notice letter informing employee that her job was being eliminated due for budgetary reasons did not provide necessary evidence of justifiable decrease in jobs). Axiomatically, if a school board claims that poor financial circumstances require a decrease in the number of jobs within its system, the school board must, as a threshold matter, prove the existence of such poor financial circumstances. The burden then rests on the school board to show that reducing personnel would be at least one rational response to address its financial condition. See Taborn v. Hammonds, 324 N.C. 546, 552, 380 S.E.2d 513, 517 (1989) (construing North Carolina’s statute allowing school board to terminate the employment of teachers because of “‘justifiable decrease in the number of positions due to ... decreased funding ”).

If a school board presents a pri-ma facie case of a “justifiable decrease in jobs,” the burden shifts to the affected employee to disprove the ground for the termination of his or her employment. An employee cannot meet that burden by showing that the school board erroneously selected his or her employment contract fpr termination as opposed to the contract of some other employee. Once a school board establishes a good reason for reducing its workforce, “the reason for selecting [a particular employee’s] contract as the one to be cancelled [i]s not open to inquiry.... [T]he right of selection is a matter resting entirely with the employing Board of Education.” Williams, 263 Ala. at 375, 82 So.2d at 552. Rather, a nonprobation-ary employee contesting a justifiable decrease in jobs must show “that there is no rational basis for the decision [to implement a RIF] or that it is based on personal, political or discriminatory motives or is a subterfuge to avoid rights arising from [the employee’s nonprobationary status].” Taborn, 324 N.C. at 556, 380 S.E.2d at 519. Absent such proof, a nonprobationary employee can avoid cancellation of his or her employment contract only by showing that the board failed to follow its RIF policy, see Mobile Cnty. Bd. of Sch. Comm’rs v. Long, supra, or impermissibly retained a probationary employee in his or her position. See, e.g., Pickens Cnty. Bd. of Educ. v. Keasler, 263 Ala. 231, 82 So.2d 197 (1955).

The hearing officer did not apply the law as stated above; rather, he applied the standard set out in Ex parte Wilson, 984 So.2d 1161 (Ala.2007), for determining whether a board of education has “good and just cause” for terminating the employment of a teacher with continuing-service status under the former Teacher Tenure Act. In Ex parte Wilson, the supreme court stated that “good cause,” in a statute like the former Teacher Tenure Act,

“ ‘ “ ‘includes any ground put forward by a school committee in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the committee’s task of building up and maintaining an efficient school system.’ ” ’ ”

Id. at 1168 (quoting Madison Cnty. Bd. of Educ. v. Wilson, 984 So.2d 1153, 1158 (Ala.Civ.App.2006), quoting in turn Ellenburg v. Hartselle City Bd. of Educ., 349 So.2d 605, 609-10 (Ala.Civ.App.1977), quoting in turn 68 Am.Jur.2d Schools § 183) (emphasis omitted). Based on that definition, the hearing officer placed the burden on the HCBOE to prove “that it was suffering a severe financial hardship, that the actions taken were in response to that hardship, and that it is reasonably likely that the actions will improve the financial condition.”

To some extent, the legal standard used by the hearing officer coincided with the proper legal standard. Under the correct legal standard, the HCBOE had the burden of proving that it was suffering a severe financial hardship and that its action in implementing the supplemental RIF plan was taken in response to that hardship. The hearing officer did not decide whether the HCBOE had satisfied its burden as to the first element; instead, for purposes of his analysis, the hearing officer presumed that the HCBOE was in a poor financial condition based on Dr. Pouncey’s deposition testimony regarding an approximately $36.5 million shortfall in its budget. The hearing officer did, however, decide the second element, finding that the HCBOE had failed to prove that it had adopted the supplemental RIF plan in response to its financial problems. In that respect, the hearing officer erred.

The hearing officer found that Dr. Poun-cey and Dr. Richardson had determined that the HCBOE could overcome all of its financial problems within two years by cutting $40 million in expenses. Dr. Richardson projected that his cost-cutting measures would save the HCBOE $23 million per fiscal year in 2011 and 2012, or a total of $46 million. Thus, the hearing officer concluded, the HCBOE would save $6 million beyond the stated goal. The hearing officer reasoned that, because the supplemental RIF plan amounted to a savings of $3.1 million, which was less than the $6 million excess, the HCBOE did not need to sacrifice the appellees’ jobs in order to reach its financial target, so the supplemental RIF plan was not necessary.

The hearing officer misunderstood the evidence. Simple mathematics show that, by saving $40 million over two years, the HCBOE would only be meeting its annual $20 million operating budget deficit ($20 million x 2 years = $40 million). Unless the HCBOE were to receive additional funding, which turned out not to be the case, the HCBOE would not have been able to place any funds in reserve as required by the SFAA. Dr. Richardson specifically testified that, by cutting $46 million in expenditures, the HCBOE would create a $6 million “buffer” against expected future proration, which is precisely the purpose of the reserve funds required by the SFAA. The HCBOE needed the “additional” $6 million to at least begin to accumulate some reserve funds, although it would still be over $10 million short of its SFAA-mandated reserve goal.

As set out in the excerpts of his deposition quoted in our factual summary, Dr. Richardson stated that the purpose of saving $40 million was to avoid having the State Board of Education assume control of the finances of the HCBOE. But, even if Dr. Richardson had opined that saving $40 million over two years would solve all HCBOE’s financial problems, it is undisputed that he acted solely as a consultant for the HCBOE. and not as its decision maker, with the HCBOE voting on all the appropriate measures to.undertake in response to its financial crisis. Williams testified without dispute that the HCBOE had voted to adopt the supplemental RIF plan as a necessary financial measure, and the above calculations prove that it acted prudently in that regard. Contrary to the findings of the hearing officer, the HCBOE had not already alleviated its financial problems before implementing the supplemental RIF plan and that action remained necessary.

The findings of fact made by a hearing officer in an FDA case will be sustained unless they are arbitrary and capricious. See former § 36-24-104(b), Ala.Code 1975. Under the arbitrary-and-capricious standard, a finding of fact will not stand if it is completely unsupported by any evidence. See King v. City of Birmingham, 885 So.2d 802 (Ala.Civ.App.2004). Therefore, we conclude that the hearing officer acted arbitrarily and capriciously in finding that the HCBOE did not need to implement the supplemental RIF plan because it had already achieved all of its financial goals.

As to the last element from his analytical framework, the hearing officer noted that the HCBOE had received information indicating that discharging the ap-pellees would reduce the HCBOE’s expenditures by the amount of the appellees’ combined salaries but that the HCBOE had not considered the costs of replacing the services performed by the appellees. That factual finding is somewhat inaccurate because some exhibits presented to the HCBOE indicate the expected replacement costs of some services. Nevertheless, the record does support a finding that the HCBOE did not perform a cost-benefit analysis as to each individual appellee to determine whether retention of his or her position would be more efficient than elimination. In that regard, the hearing officer concluded that the HCBOE had used “an overly simplistic analysis.” The question before the hearing officer, however, was not whether the HCBOE had used the most appropriate, thorough, and reasonable method for designating the employees who would be discharged under the supplemental RIF plan, see Taborn, 324 N.C. at 559, 380 S.E.2d at 521, but whether the method it did use, no matter how simplistic, was rationally related to the purpose of reducing personnel costs given the existing exigent circumstances. Although at one point in his decision the hearing officer explicitly stated that the HCBOE had not acted rationally in formulating the supplemental RIF plan, his decision as a whole reflects his conclusion that the HCBOE could have, and should have, acted more rationally by using the analysis advocated by the appellees.

That analysis, however, violates well-settled Alabama law. The rule from Williams, supra, as recently reiterated in Board of School Commissioners of Mobile County v. Christopher, supra, holds that, once it is determined that there is a “ ‘ “justifiable decrease in the number of positions due to decreased enrollment or decreased funding” ’ and that the employee at issue was discharged pursuant to that ground, a hearing officer may not inquire into the reasoning behind the selection of that particular employee for discharge. 97 So.3d at 175 (quoting Walker v. Montgomery Cnty. Bd. of Educ., 85 So.3d 1008, 1016 (Ala.Civ.App.2011)). By examining the benefits of the services provided by the appellees, and the costs of replacing those services, the hearing officer necessarily undertook to • determine whether the HCBOE had correctly targeted the appellees’. specific employment for termination.

The appellees clearly proved that they were valuable employees. However, it is doubtful that the HCBOE could have selected any support employees for inclusion in the supplemental RIF plan who did not provide some necessary service. See Christopher, 97 So.3d at 176 (“[M]any, if not all, of the employees in various school systems throughout the state are excellent employees who have had positive impacts on school systems through their employment”). Dr. Richardson did not testify that the HCBOE would experience no adverse consequences due to the terminations of the employment of the appel-lees. Dr. Richardson merely testified that he had recommended elimination of those positions he believed would least impact the classroom instruction of the students. The HCBOE evidently agreed with Dr. Richardson’s assessment when discharging its “unfortunate burden” of making the “difficult decisions regarding which positions to eliminate pursuant to [the supplemental RIF plan].” Id. The hearing officer could not “ ‘usurp the role of the school board,’ ” id. (quoting Walker v. Montgomery Bd. of Educ., 85 So.3d at 1016), by second-guessing the financial wisdom of its choices.

We conclude, therefore, that the hearing officer erred in applying an incorrect analysis when determining whether the HCBOE acted rationally in terminating the employment of the appellees. Based on that error, as well as the factual errors discussed herein, we hold that the decision of the hearing officer must be reversed.

Conclusion

We reverse the decision of the hearing officer, and we remand the cause for further consideration by the same hearing officer based on the standards outlined herein. We instruct the hearing officer to determine whether the HCBOE proved that it was suffering from a valid financial hardship, whether the HCBOE adopted its supplemental RIF plan due to that financial hardship, and whether the supplemental RIF plan amounted to one rational method of responding to that financial hardship under the circumstances, without considering whether the HCBOE could have used a more thorough and reasonable approach when selecting the individual employees to be discharged. If the hearing officer determines that the HCBOE lawfully terminated the employment of the appellees due to a justifiable decrease in jobs, the hearing officer should address any remaining issues raised by the appel-lees as to whether the HCBOE followed its supplemental RIF plan and/or whether the HCBOE impermissibly retained probationary employees in the appellees’ positions. To accomplish those tasks, the hearing officer shall not conduct any further hearings, but should rely only on the evidence adduced at the previous hearing. The hearing officer shall produce his decision on remand within 90 days of the date of the issuance of this opinion.

APPLICATION GRANTED; OPINION OF NOVEMBER 30, 2012, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . The FDA has since been repealed and replaced by the Students First Act, § 16-24C-1 et seq., Ala.Code 1975, effective July 1, 2011. Because the Students First Act does not apply retroactively, we apply the FDA in the present case. See Board of School Comm’rs of Mobile Cnty. v. Christopher, 97 So.3d 163, 166-67 (Ala.Civ.App.2012).

      . "Support staff” refers to employees who did not serve in a teaching capacity.

      . Of the appellees, Benson, McCurdy, Milton, and Powell work as landscape technicians.

      . Friend serves as an inventory clerk.

      . Crutcher is employed as a warehouseman/mover.

      . Fisher acts as a building-equipment operator.

      . Cobble works as a painter.

      . Berryhill is designated as a mechanic.

      . Smith is employed as a data-entry technician.

      . Ford is the only welder employed by the HCBOE.

      . Yarborough is classified as a carpentry apprentice but also works as a locksmith.

      . Dr. Richardson further recommended the termination of the employment of 154 non-probationary teachers and the elimination of 4.5 nonprobationary assistant-principal positions, which recommendation the HCBOE approved.

      . Frasier, Lindstrom, Lamelle, Robinson, and Hatton are classified as clerical assistants in the supplemental RIF plan.

      . According to Williams, once Dr. Richardson identified the class of jobs subject to the supplemental RIF plan, the appellees were selected for the RIF based on their employment seniority.

      . The appellees have maintained their employment with the HCBOE throughout the appeals process and continue to receive their salaries and benefits.

      . Although the notices stated that the HCBOE was proposing to terminate the employment of the appellees for "other good and just causes,” at the hearing the HCBOE did not offer any other reason for terminating the employment of the appellees other than because of financial distress. Thus, the HCBOE abandoned that alternative statutory ground. See generally Hooks v. State, 21 So.3d 772 (Ala.Crim.App.2008) (party abandons claim by failing to present evidence at trial in support of claim).

      . In their application for rehearing, the ap-pellees attempt to raise the argument that they were generally uninformed of the "financial circumstances” providing the basis for the supplemental RIF plan. However, the appellees did not file a conditional cross-appeal, see Bess v. Waffle House, Inc., 824 So.2d 783, 787 (Ala.Civ.App.2001) (describing a conditional cross-appeal as one filed by an appellee raising issues for review in the event the judgment in his or her favor is reversed), and, thus, we cannot consider that issue.

      . For that reason, the hearing officer did not discuss the effect of the evidence presented by the appellees regarding the hiring of new and additional administrative staff and the rehiring of Edminson following the implementation of the supplemental RIF plan.

      . Section 16-3A-9(b), Ala.Code 1975, provides:
      "Local boards of education are authorized to expend such reserve funds if either of the following occur:
      "(1) The Governor declares proration in the Education Trust Fund.
      "(2) Total state funds appropriated by the Legislature to the local boards of education are less than the same appropriation for the preceding fiscal year.”

      . The hearing officer agreed with those calculations in his order, but he determined that he was constrained from concluding that the HCBOE would not sufficiently cure its financial problems by cutting only $40. million, stating: "Where [the HCBOE’s] agents have testified that $40 million is sufficient, it would be an inappropriate substitution of the wisdom of the Hearing Officer for the actions of the [HCBOE] to suggest that more is needed.”

      .At least at one point in his deposition, Dr. Richardson alluded to overcoming the $36.5 million shortfall through personnel cuts, although he later testified repeatedly that the purpose of the $40 million target was to stave off intervention by the State Board of Education. See McGough v. G & A, Inc., 999 So.2d 898 (Ala.Civ.App.2007) (holding that deposition must be viewed as a whole in determining the substance of the deponent’s testimony).

      . Dr. Richardson testified that he had not recommended the termination of the employment of any of the appellees for poor performance or like cause.