author: PITTMAN, Judge.

text:
    Frederick PEACE v. Verla PEACE.
    2110355.
    Court of Civil Appeals of Alabama.
    Oct. 19, 2012.
    Rehearing Denied Dec. 7, 2012.
    Certiorari Denied Aug. 16, 2013 Alabama Supreme Court 1120335.

      John C. Robbins of Robbins Law Firm, Birmingham, for appellant.
    Floyd C. Enfínger, Jr., Montrose, for appellee.
   PITTMAN, Judge.

Frederick Peace (“the former husband”) and Verla Peace (“the former wife”) were divorced in 2004. The pertinent provisions of the divorce judgment provided:

“6. The Wife shall be awarded one-half (1/2) of the value of the Husband’s pension fund, which is through Cytec Industries. It was represented to the Court that the Husband receives One Thousand Six Hundred Sixty Six Dollars ($1,666.00) per month from this pension, and, effective August 24, 2004, the Wife shall thereafter be awarded one-half (1/2) of this pension. The Court reserves jurisdiction to issue a Qualified Domestic Relations Order [ (‘QDRO’) ] in order to effectuate this transfer. Until said QDRO is placed into effect, however, the Husband shall have a duty to turn over to the Wife himself one-half (1/2) of the amount he receives in disposable income from said pension.
“8. Until the real estate and the mobile home are sold, the Husband shall pay to the Wife the sum of Four Hundred Dollars ($400.00) per month in periodic alimony, which shall terminate upon the Wife’s death, remarriage, or cohabitation with a member of the opposite sex. This figure shall then increase to the sum of One Thousand Two Hundred Dollars ($1,200.00) per month, once the said real estate and mobile home are sold.
“10. The Husband is ordered and directed to provide the Wife with health insurance, until such time as she can qualify for Medicare. The Husband shall be solely responsible for paying for said insurance.”

In April 2011, the former husband, acting pro se, filed a petition alleging that the former wife had remarried on March 12, 2011, and seeking to terminate (a) his periodic-alimony obligation; (b) his obligation to provide the former wife with health-insurance coverage; and (c) the qualified domestic-relations order (“QDRO”) directing that the former wife be paid $838 per month — half his monthly pension benefit of $1,666. The former wife answered and counterclaimed, seeking a finding that the former husband was in contempt of prior orders of the court.

At a hearing on the merits of the former husband’s petition, the former wife acknowledged that she had remarried and that she was covered under her current husband’s health-insurance policy. She stated that for the past year she had not been paid $838, or half of $1,666 — the amount of the former husband’s monthly pension benefit as ordered in the divorce judgment — but that she had been paid only $147.13 as her share of the former husband’s monthly pension benefit. The former husband argued that the divorce judgment had awarded the former wife half his pension, without specifying the total value of that pension; that, at the time of the divorce, he had been receiving a monthly pension benefit of $1,666; and that, when he had reached the age of 62, each party’s share of the monthly pension benefit had been reduced to $147.13. He stated that he had documents from his employer to substantiate the reduction in monthly pension benefits, but he did not seek to introduce those documents into evidence or to present any testimony concerning their contents.

At the conclusion of the hearing, the trial court announced its rulings from the bench:

“THE COURT: I am going to terminate the alimony requirement because that does by law terminate upon remarriage and that is undisputed. That will be terminated as of the month [the former wife] got married, which I believe was March.
“The insurance is slightly different. The insurance does not say that it is to terminate upon the [former wife’s] remarriage or cohabitation. It is not the same as the alimony, so I am not going to [terminate] that because it does have a timetable for when it expires .... [I]t [cannot] terminate automatically because it says so by its own terms, when it ends. So [the former husband] will have to reinstate the health care insurance.
“I cannot terminate the ... retirement. That is a property settlement .... That is not the same as alimony. [Property settlements] exist regardless of [the former wife’s] present marital status.”
The trial court informed the former husband that it would not amend the QDRO because the former husband had not pleaded the reduction in his monthly benefit as a reason for the requested change. The trial court memorialized its rulings in a judgment entered in favor of the former wife in the amount of $37,774 on July 28, 2011.

On August 23, 2011, the former husband, acting through counsel, filed a post-judgment motion, arguing that the former wife’s being covered by her current husband’s health-insurance policy constituted a material change in circumstances that has occurred since the entry of the divorce judgment that required the termination of his obligation to provide the former wife with health-insurance coverage. He also argued that the QDRO should be amended to reflect the fact that the former wife’s share of his monthly pension benefit was $147.13, rather than $833. At a hearing on the postjudgment motion, the former husband’s counsel argued:

“I know [the former husband] styled [his petition] to terminate [the QDRO requiring payment of half of $1,666 in monthly pension benefits to the former wife, but] what he wanted was for the court to modify [the QDRO] to be one-half of his retirement benefit. His retirement benefit, through no fault of his own, which was set up while they were married — when he turned 62, which was May 10th of 2010, the retirement — one-half of the retirement benefit was reduced to $147.13, which [the former wife] is ... receiving. And he was really asking for an order to reflect that, instead of one-half of the $1,600 which he ... no longer receives and is no longer his retirement benefit.... [T]he way the order is set up, [the former wife] is receiving even more than a hundred percent of his retirement benefits. His retirement is basically $300 a month. I don’t know if that was made clear to the court through testimony. I read the transcript of the testimony and I wasn’t sure my client was making that clear.”

(Emphasis added.) The trial court responded:

“THE COURT: Again, he chose to represent himself.
“MR. ROBBINS [the former husband’s counsel]: I understand that. I understand that. Next—
“THE COURT: I can’t solve that one.”

Counsel for the former wife replied:

“[Counsel for the former husband] says ‘through no-fault of his own the retirement was reduced.’ That’s not true. There’s been evidence in prior hearings that the amount was reduced because [the former husband] raised his retirement account.
“The fact is [that the former husband] represented to the court [at the time of the divorce that] $1,666 would be the pension. After [the divorce], the former husband] went and changed that and now he doesn’t want to be bound by it.”

Following the denial of his postjudgment motion, the former husband filed a timely appeal to this court.

I.

The former husband argues that the trial court erred in refusing to terminate his obligation to provide the former wife with health-insurance coverage pursuant to ¶ 10 of the divorce judgment because, he says, that obligation constituted spousal support in the nature of periodic alimony that terminated upon the former wife’s remarriage. The former husband’s argument presents a legal issue, which we review de novo without affording any presumption of correctness to the trial court’s decision.

“ ‘A trial court’s conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993). This court reviews the application of law to facts de novo. Allstate [Ins. Co. v. Skelton ], 675 So.2d [377] at 379 [ (Ala.1996) ] (“[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the [trial] court’s judgment carries no presumption of correctness.”).’ ”

Boudreau v. Slaton, 9 So.3d 495, 498 (Ala.Civ.App.2008) (quoting City of Prattville v. Post, 831 So.2d 622, 628 (Ala.Civ.App.2002)).

Although this court has never explicitly held that the provision of health-insurance coverage constitutes spousal support in the nature of periodic alimony, we have previously recognized that the provision of health-insurance coverage may constitute periodic alimony. See Robinson v. Robinson, 795 So.2d 729, 731 (Ala.Civ.App.2001) (observing that the trial court “awarded the wife periodic alimony in the form of a requirement that the husband pay for her health insurance for 36 months”); Parker v. Parker, 639 So.2d 1376, 1380 (Ala.Civ.App.1994) (noting that “the wife was awarded $500 per month plus $215 per month for COBRA coverage as periodic alimony”); and Elliott v. Elliott, 579 So.2d 1383,1384 (Ala.Civ.App.1991) (affirming an award to the wife of “$125.00 per week alimony as long as the husband maintains a specific hospital and medical insurance benefit for the wife, but should that insurance cease, the alimony payments increase to $150.00 per week”). Notably, we have also recognized that the provision of health-insurance coverage is an obligation that is modifiable. See Brinkley v. Brinkley, 646 So.2d 49 (Ala.Civ.App.1994) (af firming a trial court’s judgment that terminated a former husband’s obligation to pay the former wife’s health-insurance premiums).

We conclude that, in the present case, the award to the former wife of health-insurance coverage constituted spousal support in the nature of periodic alimony because the award was intended to compensate the former wife for a routine living expense and thereby to equalize the apparent disparity in the parties’ incomes, not to award her property. See Smith v. Smith, 959 So.2d 1146, 1151 (Ala.Civ.App.2006), in which this court stated:

“Given the disparity in the parties’ incomes, the wife’s health problems, her need for medical treatment, and her inability to obtain health insurance through her employer, we conclude that the trial court erred in failing to require the husband to pay the wife’s health-insurance premiums for at least the 36 months she was entitled to coverage under the husband’s health-insurance policy pursuant to COBRA. Cf. Wilkinson v. Wilkinson, 828 So.2d 924, 928 (Ala.Civ.App.2001) (holding that the trial court erred in failing to require a wife, at a minimum, to pay the husband’s health-insurance premiums for the 86 months he was entitled to coverage under the wife’s policy pursuant to COBRA).”

An award of spousal support in the nature of periodic alimony may be limited to a specific period, see Enzor v. Enzor, 98 So.3d 15 (Ala.Civ.App.2011), as it was in this case (“until such time as [the former wife] can qualify for Medicare”), or it may extend into the indefinite future, see Frye v. Frye, 115 So.3d 932, 937 (Ala.Civ.App.2012), but in either case such an award is in the nature of periodic alimony and, thus, is subject to the mandatory limitations of § 30-2-55, Ala.Code 1975, which provides, in pertinent part:

“Any decree of divorce providing for periodic payments of alimony shall he modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.”

(Emphasis added.)

“‘By adoption of amendment 390 to the constitution and enactment of § 30-2-55, it has become the law and thus the public policy of this state that periodic alimony decreed by the court, which always has been modifiable upon a showing of changed circumstances, Sanders v. Sanders, 342 So.2d 380 (Ala.Civ.App.1977), is now to be terminated upon remarriage of the spouse receiving it. Such law and public policy is consistent with our jurisprudence. Divorce was not a common law right. It is purely statutory. The power to award alimony is also purely statutory. Ivey v. Ivey, 378 So.2d 1151 (Ala.Civ.App.1979). Alimony is derived only through the authority of statute and the exercise of the discretion of the trial judge. Therefore, what the legislature has granted it may take away. It has chosen to limit the discretion of the court by directing that an award of alimony in a prior decree be terminated by the court upon proof that the receiving spouse has remarried. It is well within the power of the legislature to do so.’ ”

Ex parte Murphy, 886 So.2d 90, 94 (Ala.2003) (quoting Oliver v. Oliver, 431 So.2d 1271, 1275-76 (Ala.Civ.App.1983), and holding that a former wife’s right to receive periodic alimony was terminated by her remarriage, notwithstanding the parties’ agreement that the former husband would continue to make a reduced periodic-alimony payment to the former wife following her remarriage).

The trial court determined that the former husband’s obligation under ¶ 10 of the divorce judgment did not terminate upon the former wife’s remarriage because ¶ 10 has its own “timetable for when [the former husband’s obligation] expires” and “does not say that it is to terminate upon the [former wife’s] remarriage or cohabitation.” An award of periodic alimony need not expressly specify, however, that the obligation ceases upon the death or remarriage of the recipient spouse because “the term ‘periodic alimony,’ by definition, means a payment to a spouse that will cease upon death, remarriage, or cohabitation.” Wheeler v. Wheeler, 831 So.2d 629, 635 (Ala.Civ.App.2002). See also Lowe v. Lowe, 495 So.2d 1123, 1127 (Ala.Civ.App.1986) (stating that a wife’s “contention that § 30-2-55 is not self-effectuating and that she was thus entitled to receive ‘ alimony5 until the husband petitioned the court under the statute and proved the fact of her remarriage [was] of little merit” and opining that it was “implicit in the language of § 30-2-55 that periodic alimony would be terminable as of the date of the receiving spouse’s remarriage”).

Based on the foregoing authorities, we conclude that the trial court erred as a matter of law in failing to terminate the former husband’s obligation to provide the former wife with health-insurance coverage, effective as of the date of the former wife’s remarriage.

II.

Citing Rose v. Rose, 70 So.3d 429 (Ala.Civ.App.2011), the former husband contends that the former wife’s award of a share of his pension benefits constitutes periodic alimony, rather than a property settlement or alimony in gross, and that it was, therefore, terminable upon the former wife’s remarriage. That argument, however, was not presented to the trial court and cannot be raised for the first time on appeal. See White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1057 (Ala. 2008).

In the alternative, the former husband contends that the trial court erred in refusing to modify the QDRO ordering the payment to the former wife of $833 per month from his pension fund. The former husband maintains that because the trial court never established the value of his pension fund and, instead, merely awarded the former wife a monthly distribution from that fund based upon the monthly distribution that the former husband had been receiving at the time of the divorce judgment, there is no impediment to modifying the QDRO to reflect a reduced monthly distribution.

We reject the former husband’s argument for two reasons. First, the former husband presented no evidence to substantiate his claim that the distributions from his pension fund had been reduced by his employer or the fund manager, rather than at his own direction, as the former wife’s attorney stated. Second, the former husband cites no authority in support of his argument that the provisions of ¶ 6 of the divorce judgment are modifiable.

“Rule 28(a)(10), Ala. R.App. P., requires that arguments in an appellant’s brief contain ‘citations to the cases, statutes, other authorities, and parts of the record relied on.’ Further, ‘it is well settled that a failure to comply with the requirements of Rule 28(a)(10) requiring citation of authority in support of the arguments presented provides this Court with a basis for disregarding those arguments.’ State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala.2005) (citing Ex parte Showers, 812 So.2d 277, 281 (Ala.2001)). 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.” ’ Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003) (quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)).”

Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala.2007).

III.

The former husband insists that the trial court miscalculated the amount of the $87,774 judgment in favor of the former wife. He apparently contends that the trial court erroneously added $685.87 (the difference between $833 and $147.13) to his preexisting alimony and retirement-obligation arrearage for each month after May 10, 2010, when he reached the age of 62 and, he says, the monthly distributions to each party from his pension fund were reduced from $833 to $147.13. That argument is foreclosed by our disposition of the former husband’s argument in Part II, supra.

Conclusion

The trial court erred in failing to terminate the former husband’s obligation to provide the former wife with health-insurance coverage because that obligation was in the nature of spousal support and terminated upon the former wife’s remarriage. Accordingly, that portion of the judgment requiring the former husband to reinsti-tute health-insurance coverage for the former wife is reversed, and the cause is remanded for entry of a judgment in compliance with this opinion. The remaining portions of the judgment are affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . The record contains a judgment in favor of the former wife entered on February 2, 2009, in the amount of $21,747, representing an arrearage in monthly periodic-alimony payments of $1,200 and monthly retirement obligations of $833 (half of $1,666 from June 1, 2007, through January 31, 2009). The former husband was ordered to pay the judgment as follows: "$6,000 due and payable in 30 days from January 26, 2009, and the balance paid at the rate of $300 per month to be paid in addition to the $1,200 alimony and retirement obligations referenced above."


source: Caselaw Access Project

license: Public Domain

text:
    Ex parte Eddie CHAMBERS. (In re Eddie Chambers v. City of Birmingham).
    2110537.
    Court of Civil Appeals of Alabama.
    Feb. 22, 2013.
    Rehearing Denied July 12, 2013.
    Certiorari Denied Aug. 16, 2013 Alabama Supreme Court 1121229.

      Horace V. O’Neal, Jr., Birmingham, for petitioner.
    Laura C. Nettles of Lloyd, Gray, Whitehead & Monroe, P.C., Birmingham, for appellant.
   PITTMAN, Judge.

Eddie Chambers (“the employee”), a worker employed by the public-works department of the City of Birmingham (“the City5’) — a municipality located in Jefferson County — was cited by the City in December 2010 for having failed to comply with an earlier order of the City’s personnel department directing him to attend anger-management counseling sessions; the City contended that the employee had thereby violated a number of substantive regulations promulgated by the Jefferson County Personnel Board (hereinafter “the Personnel Board” or simply “the Board”), including regulations addressing conduct unbecoming a classified employee, insubordination, neglect of duty, and violation of appointing-authority rules or directives of superior officers or supervisors, among others. The employee, after a hearing, was notified by the City that his employment would be terminated, whereupon the employee timely invoked his right to appeal from that decision to the Board.

The Board, which was created pursuant to Act No. 248, Ala. Acts 1945 (hereinafter referred to, as amended, as “the Act” ), a general act of purely local application based upon a population restriction contained therein, is empowered by the legislature under Section 2 of the Act to exercise “control, by rules and regulations and practices ..., of all employees and appointees holding positions in the classified service of’ Jefferson County and its municipalities having populations of over 2,500 people. Under Section 22 of the Act, a dismissed municipal employee “may within ten days after notice[ ] appeal from the action of the appointing authority by filing with the Board and the appointing authority a written answer to the [disciplinary] charges” against the employee, after which the Board must “order a public hearing of such charges” before itself or a hearing officer; if the Board finds an appealing employee guilty of the charges, it has the authority to determine whether that employee “shall be dismissed, demoted, suspended, or otherwise disciplined.” Id. In this case, a hearing officer appointed by the Board conducted such a hearing in August 2011 and issued a recommendation to the Board that the termination of the employee’s employment by the City be upheld. The Board, on September 20, 2011, entered an order, signed by two of its three members, affirming the City’s termination of the employee’s employment.

Section 22 of the Act further provides that “[t]he decision of the Board based upon all proceedings before the Board shall be final subject to appeal by either party to the Circuit Court,” i. e., the Jefferson Circuit Court, “to review questions of law and the question of whether or not the decision or order of the Board is supported by the substantial and legal evidence.” Id. Crucially, the Act then states:

“The appeal shall be perfected by filing with the Director of Personnel a statement in writing signed by the party appealing to the effect that said party appeals from the decision or order of the Personnel Board to the Circuit Court, which statement shall be filed within ten days from the announcement of the decision or order of the Personnel Board.”

(Emphasis added.) The employee in this case, acting through counsel, sent a letter to the Board’s personnel director on September 26, 2011, six days after the issuance by the Board of the September 20, 2011, order, giving notice of appeal from that order. The employee did not file anything in the circuit court until October 5, 2011, 15 days after the Board’s order was issued, at which time he filed a “petition for judicial review” naming the City and the Board as defendants and in which he sought to invoke the Alabama Administrative Procedure Act (“the AAPA”), § 41-22-1 et seq., Ala.Code 1975.

The Board thereafter filed a motion to dismiss the employee’s appeal as untimely, noting that the employee had filed no papers with the circuit court until after 10 days had passed after the issuance of its order. The Board cited as authority mandating dismissal of the appeal one of its regulatory provisions, Rule 12.13(b) (“the Rule”), which provides that an appeal of a disciplinary determination of the Board

“shall be perfected by filing with the Director and the Clerk of the Circuit Court of Jefferson County, a statement in writing, signed by the party appealing, to the effect that said party appeals from the decision or order of the Board to the Circuit Court, which statement shall be filed within ten (10) calendar days from the announcement of the decision or order of the Board.”

(Emphasis added.) Although Section 22 of the Act provides that appeals from disciplinary orders of the Board are to be “assign[ed] ... to three Circuit Judges of said Circuit who shall jointly review the record of the hearing before the Personnel Board,” the Board’s motion was set for a hearing before a single judge acting as the chair, or presiding judge, of the three-judge panel. After considering the Board’s motion relying upon the Rule, the employee’s objection relying upon the Act, and the Board’s reply, the presiding judge unilaterally granted the Board’s motion and dismissed the employee’s appeal.

The employee filed a notice of appeal to this court. However, Section 22 of the Act provides that in appeals to the circuit court from adverse rulings of the Board, “there shall be no appeal to any appellate court of Alabama.” Nevertheless, as we noted in Ex parte Dixon, 841 So.2d 1273 (Ala.Civ.App.2002), a party aggrieved by a circuit-court decision in such a matter is not without a remedy in the appellate courts; he or she may file a petition for a writ of certiorari in this court, as to which the appropriate standard of review limits this court to “ ‘a review of whether the circuit court properly applied the law,’ ” “ ‘whether the decision is supported by any legal evidence,’ ” and “[whether] there ha[s] been [a] violation of a party’s fundamental rights.” 841 So.2d at 1278 (quoting Ex parte Jackson, 733 So.2d 456, 457 (Ala.Civ.App.1999), and citing Evans v. City of Huntsville, 580 So.2d 1323 (Ala.1991)). Thus, we have considered the employee’s purported appeal from the circuit court’s decision on the employee’s appeal from the Board’s order as a petition for a writ of certiorari in accordance with our customary practice.

The employee contends, among other things, that the Rule is contrary to the Act in the field of perfection of an appeal from an order of the Board and that, to the extent of the conflict arising therefrom, the Act must prevail such that his appeal should be deemed timely. We agree. Whereas the Act states that an appeal from a determination by the Board in an employee-disciplinary matter is “perfected” by means of the employee’s filing of a notice of appeal with the Board’s personnel director within 10 days of the issuance of the Board’s order, the Rule states that such an appeal is “perfected” only by filing such a statement both with the director and with the clerk of the circuit court. To the extent that the Board, by adoption of a regulation that purports to amend a duly enacted statute, has sought to impose a further prerequisite upon parties to disciplinary proceedings before the Board before their appeals may be deemed perfected, the Board has done so in the absence of authority.

“It is settled law that the provisions of a statute will prevail in any case in which there is a conflict between the statute and a ... regulation.
“ Tt is axiomatic that administrative rules and regulations must be consistent with the constitutional or statutory authority by which their promulgation is authorized. “A regulation ... which operates to create a rule out of harmony with the statute, is a mere nullity.” This is because an administrative board or agency is purely a creature of the legislature, and has only those powers conferred upon it by its creator.’
“An administrative agency cannot usurp legislative powers or contravene a statute.”

Ex parte Crestwood Hosp. & Nursing Home, Inc., 670 So.2d 45, 47 (Ala.1995) (citations omitted; quoting Ex parte City of Florence, 417 So.2d 191, 193-94 (Ala.1982), quoting in turn Manhattan Gen. Equip. Co. v. Commissioner, 297 U.S. 129, 134, 56 S.Ct. 397, 80 L.Ed. 528 (1936)).

Because the circuit court has, in this case, enforced the Rule to bar an appeal that, according to the Act, was properly perfected by the employee, we conclude that that court has erred. We therefore reverse the judgment under review and remand the cause for the circuit court to allow the employee’s appeal to proceed.

REVERSED AND REMANDED.

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

      . The legislature amended Act No. 248, Ala. Acts 1945, by multiple enactments in 1977. Section 2 and Section 22 of the Act' — the two sections discussed and quoted in this opinion — were each amended in 1977 through two acts: Act No. 677 and Act No. 782, Ala. Acts 1977 (Section 2), and Act No. 679 and Act No. 684, Ala. Acts 1977 (Section 22); after approval by the governor, each of the pertinent acts became effective at 6:00 p.m. on May 23, 1977. The provision of Section 2 quoted in this opinion is substantially identical in Act No. 677 and Act No. 782, and, likewise, the provisions of Section 22 quoted in this opinion are substantially identical in Act No. 679 and Act No. 684; moreover, neither this court nor our supreme court has been called upon to determine which versions of these sections is controlling. See Fraternal Order of Police, Lodge No. 64 v. Personnel Bd. of Jefferson Cnty., 103 So.3d 17 (Ala.2012).

      . To the extent that such general statutes of local application, also colloquially known as "bracket bills,” were enacted on or before January 13, 1978, without observance of the notice and publication provisions contained in Section 106 of the Alabama Constitution of 1901, they were ratified in 1980 by Amendment No. 389 to that Constitution. See generally Freeman v. Purvis, 400 So.2d 389, 391-92 (Ala.1981).

      . We agree with the Board that it is not a state agency as to whose orders appellate review is governed by the AAPA. See City of Dothan Pers. Bd. v. DeVane, 860 So.2d 881, 883 (Ala.Civ.App.2002).

      . Although the employee has contended in this proceeding that the presiding judge of the three-judge panel hearing his appeal did not have the authority to act unilaterally on a dispositive pretrial motion, we have previously held squarely to the contrary. Ex parte Personnel Bd. of Jefferson Cnty., 513 So.2d 1029, 1031 (Ala.Civ.App.1987).

      . Ex parte City of Florence erroneously attributes part of the quoted material to Lynch v. Tilden Produce Co., 265 U.S. 315, 44 S.Ct. 488, 68 L.Ed. 1034 (1924), a case that is cited but is not quoted by the Court in Manhattan General.

      . Although petitions for extraordinary writs directed to circuit courts, such as petitions for the writ of certiorari, are ordinarily governed by Rule 21, Ala. R.App. P., this court treats cases such as this one, in which review by this court has been sought of judgments of the Jefferson Circuit Court reviewing decisions of the Board, as appeals for purposes of preparing records and briefs, and the nature of this court's prior judgments in such cases reflects that treatment (i.e., we "affirm” or "reverse” the circuit court’s judgment in such cases rather than "grant” or "deny” a petition for, or issue, a writ of certiorari). E.g., Ex parte City of Birmingham, 870 So.2d 742, 747 (Ala.Civ.App.2003). Our disposition in this case reflects our adherence to that custom.


author: THOMAS, Judge.

text:
    HUNTSVILLE CITY BOARD OF EDUCATION v. Clark SHARP. Clark Sharp v. Huntsville City Board of Education.
    2110366.
    Court of Civil Appeals of Alabama.
    May 3, 2013.
    Certiorari Denied Aug. 16, 2013
    Alabama Supreme Court 1120959.

      Edward E. Wilson, Jr., of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellant/cross-appellee Huntsville City Board of Education.
    Christian M. Comor of Wilmer & Lee, P.A., Huntsville; and Sabrina L. Comer of Comer & Gundlach, PLLC, Montgomery, for appellee/cross-appellant Clark Sharp.
   On Application for Rehearing

THOMAS, Judge.

The opinion of January 4, 2013, is withdrawn, and the following opinion is substituted therefor.

Clark Sharp was employed by the Huntsville City Board of Education (“the Board”) as a mechanic; Sharp was a non-probationary support employee. In 2010, the Board was facing a nearly $20 million shortfall in its fiscal year 2009 budget and had also failed to comply with the Fiscal Accountability Act, codified at Ala.Code 1975, § 16-13A-1 et seq., specifically § 16-13A-9, which requires the Board to maintain at least one month’s operating budget in reserve. The State Board of Education (“the State”), through its Deputy Superintendent for Finance and Administration, Dr. Craig Pouncey, notified the Board of its concern over the Board’s fiscal issues. Among the issues that raised significant concern for Dr. Pouncey was that over 85% of the Board’s local funds were used to pay what Dr. Pouncey considered to be an exorbitant number of support staff. In fact, the Board spent $1,400 a year per pupil on its support staff. Based on his review of the Board’s finances, Dr. Pouncey urged the Board to implement a drastic reduction in personnel or, he warned, face having the State intervene and take over the operation of the school system.

The Board decided to cooperate with the State; it hired the former State Superintendent of Schools, Dr. Ed Richardson, as a consultant to assist it with making a plan to reduce the Board’s operating budget. Dr. Richardson recommended a two-stage reduction of the Board’s personnel. Ultimately, the Board, utilizing its Reduction-in-Force (“RIF”) Policy, reduced personnel by terminating nearly all of its probationary support personnel in March 2011 (“the March RIF plan”) and by terminating the remaining probationary support personnel, reassigning 9 or 10 assistant principals, releasing 154 nontenured teachers, and terminating 77 nonprobationary support personnel in April 2011 (“the April RIF plan”) (the March RIF plan and the April RIF plan are sometimes referred to collectively as “the RIF plan”). Sharp was notified in April that he was recommended for termination of employment in conjunction with the April RIF plan.

The notification Sharp received from the Board’s superintendent, Dr. Ann Roy Moore, read as follows:

“You are hereby given notice of my intention to recommend termination of [your] employment [as] a Mechanic for Huntsville City Board of Education as provided in § 36-26-102, Ala.Code 1975. The reason for the proposed termination is as follows: justifiable decrease in jobs in the system or other good and just causes.
“The facts showing that the termination is taken for one or more of the reasons listed in § 36-26-102, Ala.Code 1975, are as follows:
“1) Due to financial circumstances, the Board must reduce the number of its employees. To accomplish this, the Board 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 are to be terminated before those with greater seniority).”

The notice further specified that the Board would hold a meeting on the proposed termination on May 17, 2011, and that Sharp was entitled to request a conference with the Board, provided he gave the Board the requisite notice of his desire for a conference.

Sharp appeared at the hearing, as did his counsel, who spoke with the Board regarding the proposed termination. The Board voted to terminate Sharp’s employment, and Sharp was given written notice of the termination. Sharp then gave the Board notice that he contested the termination and that he requested a hearing pursuant to the former Fair Dismissal Act (“the FDA”), former § 36-26-100 et seq., Ala.Code 1975, which has since been repealed and replaced by the Students First Act (“the SFA”), § 16-24C-1 et seq., Ala. Code 1975, effective July 1, 2011. A hearing was held before a hearing officer on November 2, 2011. After the hearing, the hearing officer entered an award overturning the Board’s decision to terminate Sharp’s employment.

In his award, the hearing officer noted that the Board had faced financial issues and that it had faced being taken over by the State if it had not acted to address its financial shortcomings. The hearing officer then found that Dr. Richardson had recommended to the Board which employees to terminate; he further found and took issue with the fact that, according to the hearing officer, Dr. Richardson had not conferred with John Brown, the Board’s Director of Maintenance, Facilities, Construction, Transportation, and Safety, regarding Brown’s opposition to the termination of all the mechanics in the Board’s employ. The hearing officer also stated that “[t]here was no evidence that by firing the mechanics and outsourcing their various duties, any money would be saved.” The hearing officer concluded:

“It was the duty of the Board to prove that [its] RIF of these mechanics did accomplish the statute requirement [(sic)] that the decrease in jobs was justifiable or that there was good and just cause[. Ala.Code 1975, § ] 36-26-102.
“In view of the absence and failure of the Board to establish a legitimate need to lay off this employee, I shall determine that no action should have been [ (sic) ] against this employee.”

Finally, the hearing officer noted that, after the institution of the RIF plan, the Board had added certain “staff employees” with salaries ranging from $49,271 to $141,600 per year, that the Board intended to contract with Teach for America to supply teachers for $550,000, and that the Board had purchased for $853,000 certain computer equipment for students in lieu of textbooks. The hearing officer stated that he had recited these expenditures in the award to “underscore the point that enough adjustment in the work force had been made and[, thus, that the financial issues faced by the Board had been resolved] and did not necessitate the termination of this employee who conceivably] saves money for necessary services.”

The Board sought to appeal the hearing officer’s award to this court. After the Board filed a letter brief setting out “special and important reasons,” pursuant to former Ala.Code 1975, § 36-26-104(b), we accepted the appeal. Sharp perfected a cross-appeal from the hearing officer’s award.

On appeal, the Board argues that the hearing officer impermissibly substituted his judgment for the Board’s judgment and erred by requiring the Board to prove a legitimate need to lay off Sharp instead of requiring the Board to prove only a justifiable decrease in jobs within the system. The Board further argues that it proved a justifiable decrease in jobs within the system. On cross-appeal, Sharp argues that the hearing officer should have also determined that the notice of proposed termination of his employment did not comply with former Ala.Code 1975, § 36-26-103(a), because it did not give him enough factual information to form a defense to the proposed termination. The Board argues that we should dismiss the cross-appeal filed by Sharp because the hearing officer’s award was wholly in Sharp’s favor and he therefore has no adverse decision from which to appeal. See, e.g., Personnel Bd. of Jefferson Cnty. v. Bailey, 475 So.2d 863 (Ala.Civ.App.1985). In the alternative, the Board further argues that the termination notice provided to Sharp complied with former § 36-26-103(a).

We will first consider the issues raised by the Board’s appeal. We have recently had the opportunity to clarify the role of a hearing officer when faced with an appeal from a termination of employment under a RIF plan. See Huntsville City Bd. of Educ. v. Stranahan, 130 So.3d 204, 206 (Ala.Civ.App.2013); Huntsville City Bd. of Educ. v. Frasier, 122 So.3d 193, 201 (Ala.Civ.App.2013); and Board of Sch. Comm’rs of Mobile Cnty. v. Christopher, 97 So.3d 163, 174 (Ala.Civ.App.2012). Once a hearing officer has concluded that a school board has demonstrated that it had established as a ground for termination a justifiable decrease in jobs within the system, in the absence of allegations that the termination was motivated by an improper motive, the hearing officer is not permitted to further inquire into “whether the termination of a particular employee’s employment was justifiable under a RIF policy.” Christopher, 97 So.3d at 174. As we have further explained, “the responsibility for making the difficult decisions regarding which positions to eliminate pursuant to a justified implementation of a RIF policy rests with the Board and ... hearing officers and the courts ‘are not permitted to usurp the role of the school board.’ ” Id. at 176 (quoting Walker v. Montgomery Cnty. Bd. of Educ., 85 So.3d 1008, 1016 (Ala. Civ. App.2011)).

In his award, the hearing officer specifically determined that the Board had not proven that it had “a legitimate need” to terminate Sharp’s employment specifically. In support of his conclusion, the hearing officer noted that Sharp and the other mechanics employed by the Board had performed valuable services that, according to the hearing officer, had saved money for the Board. In addition, the hearing officer concluded that the outsourcing of the duties performed by the mechanics would not result in any savings to the Board.

Those conclusions, however, are outside the scope of the question to be considered by the hearing officer when considering an appeal from a termination resulting from the implementation of a RIF plan. That Sharp or the other mechanics performed valuable services for the Board while employed is irrelevant to whether the termination of Sharp’s employment was permissible. Moreover, whether the outsourcing of the duties performed by the mechanics ultimately resulted in a savings to the Board is also outside the scope of the hearing officer’s review. The only “ ‘pertinent inquiry’ ” to be made by the hearing officer was whether the Board had proven a justification for decreasing the number of jobs in the system at the time the Board determined that a RIF plan should be instituted. Christopher, 97 So.3d at 174 (quoting Williams v. Board of Educ. of Lamar Cnty., 263 Ala. 372, 375, 82 So.2d 549, 552 (1955)).

As we explained in Frasier:
“The rule from Williams [v. Board of Education of Lamar County ], [263 Ala. 372, 82 So.2d 549 (1955)], as recently reiterated in Board of School Commissioners of Mobile County v. Christopher, [97 So.3d 163 (Ala.Civ.App.2012) ], 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 [Board] had correctly targeted the appellees’ specific employment for termination.
“The appellees clearly proved that they were valuable employees. However, it is doubtful that the [Board] 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 [Board] would experience no adverse consequences due to the terminations of the employment of the appellees. Dr. Richardson merely testified that he had recommended elimination of those positions he believed would least impact the classroom instruction of the students.... 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.”

122 So.3d at 198 (footnote omitted).

However, unlike the hearing officer in Frasier, the hearing officer in the present case did not clearly indicate whether he had determined that the Board had established that its financial condition was such that it was required to institute the RIF plan and, thus, that there was a justifiable decrease in jobs within the system. See Frasier, 122 So.3d at 206 (explaining that when a school board relies on a justifiable decrease in jobs in the system as a ground for an employee’s discharge, the board must prove a justifiable decrease in jobs in the system and, if poor financial circumstances are the root cause of the decrease in jobs in the system, must also- prove the existence of the poor financial circumstances). Some of the statements in the hearing officer’s award indicate that he might have questioned the extent of the RIF plan and whether all the terminations the Board imposed under the April RIF plan were necessary to secure the fiscal soundness of the system, .but the hearing' officer failed to make any determination regarding the threshold issue whether the Board had proven a justifiable decrease in jobs in the system due. to its financial condition. Without a determination that the Board had failed to demonstrate a justifiable decrease of jobs in the system, the hearing officer’s decision reinstating Sharp is arbitrary and capricious and without legal support. See former Ala.Code 1975, § 36-24-104(b) (stating that a hearing officer’s decision “shall be affirmed on appeal unless [this court determines that it is] arbitrary and capricious”). Thus, we reverse the hearing officer’s award and remand the cause to the hearing officer for him to enter an award determining whether, based on the evidence presented at the November 2011 hearing, the Board proved that its financial circumstances resulted in a justifiable decrease in jobs within the system such that the April RIF plan, which applied to certain nonprobationary support employees, including Sharp, was necessary. See Bishop State Cmty. Coll, v. Williams, 4 So.3d 1152, 1162 (Ala.Civ. App.2008) (instructing a hearing officer to address and resolve the issues originally presented to him without ordering a new hearing on those issues).

We turn now to the issue raised by Sharp in 'his cross-appeal. Sharp argues that the notice of proposed termination he received from the Board was deficient because it did not contain sufficient information to permit him to mount a defense to his proposed termination. Under former § 36-26-103(a), a notice of proposed termination was required to “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] Section 36-26-102.” Specifically, Sharp complains that the notice failed to contain facts supporting the need to implement the RIF plan, regarding the alleged impending takeover of the school system by the State, or indicating why mechanics like Sharp were selected for termination of employment under the RIF plan. Sharp reiies on Bishop State Community College v. Archible, 33 So.3d 588, 590 (Ala.Civ.App.2009), in which this court determined that' a termination notice given to an employee of a college had failed to apprise the employee of the facts underlying the charges giving rise to the proposed termination, as required by former § 36-26-103(a), and, thus, that the employee had been deprived of the opportunity to marshal facts to prepare an adequate defense to those charges.

The Board argues that Sharp’s cross-appeal is due to be dismissed. Typically, a party may not take an appeal from a decision that is wholly favorable to him. Bailey, 475 So.2d at 865-66. The hearing officer’s award overturned the Board’s termination of Sharp’s employment and restored Sharp to his employment; thus, that award was wholly favorable to Sharp. However, Sharp’s appeal is in the nature of a conditional cross-appeal, which becomes ripe for review in the event that the judgment under review is reversed as a result of the appeal. See First Props., L.L.C. v. Bennett, 959 So.2d 653, 657 (Ala. Civ.App.2006); Bess v. Waffle House, Inc., 824 So.2d 783, 787 (Ala.Civ.App.2001). We will therefore consider whether the hearing officer should have determined that the notice provided to Sharp was insufficient under former § 36-26-103(a).

As. we have recently determined, the notice of proposed termination of employment in a case involving the institution of a RIF plan is not required by former § 36-26-103(a) to include all the facts giving rise to the need for that RIF plan or supporting the decision to include a particular class of employees or a particular employee in that RIF plan. Stranahan, 130 So.3d at 208.

As we explained in Stranahan:
“In the present case, the Board cited a ‘justifiable decrease in jobs in the system’ as the reason for the proposed terminations. See former § 36-26-102, Ala.Code 1975. In the notices, the Board then explained that reason by citing financial circumstances that necessitated the imposition of the RIF policy, and it explained the manner in which the employees whose employment was to be terminated under the RIF policy would be selected. Thus, the notices of termination provided by the Board explained that the Board’s current financial circumstances warranted the decrease of jobs in the system. See Ex parte Soleyn, 33 So.3d [584,] 588 [ (Ala.2009) ].
“Stranahan and Holmes each argue that under [Bishop State Community College u] Archible, [33 So.3d 588 (Ala. Civ.App.2009) ], a more detailed explanation of the basis of the Board’s financial situation was required. We disagree. As the Board points out, in Archible, supra, the terminations at issue were proposed because of financial improprieties, and this court determined that more information was required. It seems axiomatic that a more detailed statement of allegations of misconduct would be necessary to allow an accused employee to defend against those allegations. In this case, however, there are no adverse allegations for Stranahan or Holmes to defend against. The basis for the proposed terminations was that the Board was experiencing financial difficulties necessitating the implementation of the RIF policy. The primary argument asserted by Stranahan and Holmes before the hearing officers was that the notice they received from the superintendent did not afford them sufficient information to defend against the specific selection of them as employees whose employment was to be terminated. We cannot conclude that the former FDA required, as part of the Board’s notice to each employee terminated under a RIF policy, that the Board set forth the specific facts underlying its financial condition and the expected benefit of the implementation of the RIF policy, particularly with regard to each employee terminated.
“We conclude that the hearing officers erred in determining that the superintendent’s notices to Stranahan and Holmes were insufficient under former § 36-26-103, Ala.Code 1975.”

130 So.3d at 208.

Similarly, in the present case, the Board provided notice to Sharp that he would be included in the proposed terminations necessitated by the RIF plan that the Board was planning to institute as a result of its precarious financial position. The Board was not required to give Sharp notice of every aspect of the Board’s financial issues that the Board had determined necessitated the RIF plan, the anticipated cost savings expected as a result of the RIF plan, or the basis the Board used to determine that Sharp’s position would be included in the RIF plan. See Stranahan, 130 So.3d at 212 (Moore, J., concurring specially) (stating that “[t]he notice necessarily imparted that the Board intended to reduce its workforce exclusively to save the costs associated with the salaries and other monetary benefits payable to [the employees] and not for any other reason,” that “[t]he letters did not convey to [the employees] the exact financial condition of the Board; nor did the letters specify the nature of the causes leading to that financial condition or the extent of the financial relief the Board anticipated from the reduction in force,” and that “former § 36-26-103(a) did not require such detail in order to provide a nonprobationary employee an opportunity to mount an adequate defense to the proposed termination of his or her employment for financial reasons”). Thus, based on Stranahan, we conclude that the notice provided to Sharp complied with former § 36-26-103(a).

APPLICATION GRANTED; OPINION OF JANUARY, 4, 2013 WITHDRAWN; OPINION SUBSTITUTED; APPEAL — REVERSED AND REMANDED WITH INSTRUCTIONS; CROSS-APPEAL — AFFIRMED.

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

      . Because the SFA does not apply retroactively, we apply the FDA in the present case. See Board of Sch. Comm’rs of Mobile Cnty. v.

        Christopher, 97 So.3d 163, 171 (Ala.Civ.App.2012).

      . As we have recently determined, a hearing officer may, of course, review whether the terms of the RIF policy were properly applied to a particular employee. See Huntsville City Bd. of Educ. v. McLemore, 114 So.3d 55, 57 (Ala.Civ.App.2012) (affirming a hearing officer’s reversal of an employee's termination when the Board had failed to properly apply the retreat provision of the RIF policy).


author: MOORE, Judge. THOMAS, Judge,

text:
    CITY OF NORTHPORT v. Johnny SLEDGE.
    2111171.
    Court of Civil Appeals of Alabama.
    June 28, 2013.

      Ronald L. Davis, city atty., Law Offices of Ronald L. Davis LLC, Tuscaloosa, for appellant.
    Bobby H. Cockrell, Jr., of Cockrell & Cockrell, Tuscaloosa, for appellee.
   MOORE, Judge.

The City of Northport (“the City”) appeals from the judgment of the Tuscaloosa Circuit Court, which reversed the decision of the Northport Civil Service Board (“the Board”) to uphold the City’s decision to terminate the employment of Johnny Sledge. We reverse and remand.

Procedural Background

Sledge was employed by the City. On or before June 1, 2011, Sledge was working at a job site with three other employees of the City, Gary Wilder, the backhoe operator; Doug Jones, the crew chief at the job site; and Carl Eatmon. Kenny Burns, the supervisor in charge of the other employees, was not at the job site. Sledge, Wilder, Jones, Eatmon, and Burns are sometimes referred to collectively as “the employees.” The City terminated all of the employees’ employment based on an incident that involved the employees’ taking scrap metal from a job site and selling it for personal profit; in order to sell the scrap metal, Sledge left the job site during working hours on at least two different occasions. The employees divided among themselves the money that was received from the sale of the scrap metal.

The employees appealed the City’s decision to the Board, and, on June 21, 2011, a hearing was held before the Board. Neither Wilder nor Sledge nor their attorneys appeared at the June 21, 2011, hearing. The Board overturned the City’s decision to terminate the employment of Eatmon and Jones, but it affirmed the City’s decision to terminate the employment of Sledge, Wilder, and Burns.

On June 30, 2011, Sledge appealed the Board’s decision to the Tuscaloosa Circuit Court (“the trial court”). In his notice of appeal, Sledge asserted that the Board’s decision was improperly based on his race and a reading disability and was in retaliation for complaints previously filed by Sledge against the City with the Equal Employment Opportunity Commission; Sledge also asserted that his supervisor had given the employees the scrap metal from the job site. The City moved to strike Sledge’s allegations of discrimination and his allegation of retaliatory discharge, asserting that those matters had not been raised before the Board and, therefore, pursuant to Act No. 1225, § 19, Ala. Acts 1969, were not properly presented to the trial court. The City also moved to dismiss Sledge’s appeal, asserting that he had failed to appear at the hearing before the Board.

On August 15, 2011, the trial court denied the City’s motion to dismiss and remanded Sledge’s case to the Board with instructions to conduct another hearing. On October 4, 2011, after another hearing before the Board, at which Sledge and his attorney appeared, the Board voted unanimously to uphold the City’s decision to terminate Sledge’s employment. The Board’s decision was filed with the trial court on October 5, 2011. A transcript of the hearing before the Board also was submitted to the trial court.

On November 30, 2011, the trial court conducted a hearing on Sledge’s appeal. At the conclusion of that hearing, the trial court questioned whether it was to review the City’s decision to terminate Sledge’s employment or the Board’s decision to uphold the City’s decision to terminate Sledge’s employment. Sledge contended that the trial court’s decision was governed by Ala.Code 1975, § 11-44B-48, while the City contended that the trial court’s decision was governed by the Northport Civil Service Act (“the Act”), Ala. Acts 1969, Act No. 1225. The trial court requested briefs from the parties on that issue.

On May 3, 2012, the trial court entered a judgment reversing the Board’s decision to uphold the City’s termination of Sledge’s employment. The trial court indicated that it was reviewing the Board’s decision pursuant to § 11-44B-48 and stated:

“2. In reviewing the decision of the Board to uphold the termination of Johnny Sledge[,] the Court took into consideration Mr. Sledge’s major role in the events leading to his termination, his prior disciplinary record, his allegations of retaliation against the City of Northport for filing prior discrimination complaints, his having received permission to receive the pipe from his overall supervisor, Kenny Burns, and his immediate supervisor, Doug Jones, who actually contacted Kenny Burns to obtain the permission and shared in the proceeds generated by the sale of the pipes, and the Board’s decision to reduce the termination to suspension for Doug Jones.
“3. In light of the evidence, including the Board’s decision to reduce the termination of Mr. Jones to a suspension, the Court is of the opinion that the decision to uphold the termination of Mr. Sledge is arbitrary and capricious and is not supported by substantial evidence. In the Court’s view, based on the evidence and the record, the culpability of. Mr. Jones is equal to if not greater than the culpability of Mr. Sledge. This is so particularly given the testimony by the City Administrator that he held the supervisor to a higher standard than the person being supervised.
“Accordingly, the Decision to Uphold the termination of Johnny Sledge is hereby reversed and this case is remanded to the ... Board for proceedings consistent with the Judgment of this Court.”

The City moved to alter, amend, or vacate the trial court’s judgment; the trial court denied that motion. The City timely filed its notice of appeal.

Analysis

The City first contends that Sledge’s appeal to the trial court was governed by the Act and not by Ala.Code 1975, § 11-44B-48, and, thus, that the trial court reviewed the evidence under the wrong standard of review. We agree with the City.

Alabama Code 1975, § 11-44B-40 et seq., establishes a personnel system that is applicable “only to Class 4 municipalities organized under Chapter 44B, and electing by ordinance within 30 days of March 15, 2006, to be subject to this article [i.e., Title 11, Chapter 44B, Article 2] and participate in the personnel system provided for in this article.” § 11-44B^40. The record contains nothing to establish that § 11-44B-40 et seq. is applicable to the City.

The City asserts that it is a Class 7 municipality, not a Class 4 municipality. See Ala.Code 1975, § 11-40-12 (establishing 8 classifications of municipalities based on population and specifying that Class 4 municipalities include “[a]ll cities with a population of not less than 50,000 and not more than 99,999 inhabitants”). Although the City did not make that assertion until it filed its postjudgment motion, the City’s failure to make that assertion earlier in the proceedings below did not justify the trial court’s application of § 11-44B-48 without some evidence indicating that the City met the eligibility requirements of § 11-44B-40 et seq.

Even assuming that the City is a Class 4 municipality, the record contains nothing to indicate that it ever elected to be subject to § 11-44B-40 et seq. and to participate in the personnel system established in those Code provisions. Such an election is an express requirement for the application of § 11-44B-40 et seq. We, therefore, agree with the City that the record before the trial court failed to demonstrate that § 11-44B-40 et seq. was applicable to Sledge’s appeal.

Conversely, the preamble to the Act indicates that its purpose is to “establish a Civil Service System for the City of North-port.” Among other things, that Act establishes a personnel board, i.e., the Board; divides the City’s employees into “exempt” and “classified” status; specifies the duties of the Board; specifies a method for filling vacant jobs with the City; addresses disciplinary actions to be taken against City employees, including suspensions, demotions, and dismissals; and authorizes the Board to review decisions of the City regarding employee discipline. Thus, it cannot be disputed that the Act applies to and governs Sledge’s appeal relating to the termination of his employment with the City.

In his brief to this court, Sledge acknowledges that the trial court erred in applying § 11-44B-48 to his appeal. He asserts, however, that that error was harmless. We disagree.

Section 19 of the Act, which establishes a method by which the City or employees of the City may appeal from adverse decisions of the Board, provides, in pertinent part:

“The employee, the appointing authority, or the city may, within ten (10) days after the decision of the board is rendered, appeal to the [Tuscaloosa Circuit Court] from any decision of the board.... by filing notice of such appeal with the court and causing a copy of such notice to be served on the appointing authority and any member of the board. Upon the filing of such notice, the board shall file with the court a certified transcript of the proceeding had before it with respect to the appeal, and its decision in the matter. The appeal shall be heard at the earliest possible date by the court sitting without a jury on the issues made before the board and the trial in the court shall be de novo.”

(Emphasis added.) Thus, the Act provides for a de novo review on appeal.

Alternatively, § ll-44B-8(f), Ala. Code 1975, which specifies the means by which a party may appeal to the circuit court from decisions of a personnel board created pursuant to § 11-44B-40 et seq., provides, in pertinent part:

“Review by the court shall be without a jury and confined to the record, including a transcript of the evidence. The court, upon the terms and conditions it deems proper, at any time before the hearing of the petition, may permit the taking of additional evidence before the board and allow modification of the findings and final decision of the board. The court upon a hearing of the petition, shall have power to affirm or reverse and render the decision of the board or reverse and remand the matter to the board for further proceedings consistent with the judgment of the court. The court shall affirm the decision of the board unless it finds that the substantial rights of the petitioner have been prejudiced because the final decision of the board was any of the following:
“(1) Unsupported by substantial evidence in the record submitted.
“(2) In excess of the authority conferred by this article on the board.
“(3) Violative of constitutional provisions.
“(4) Arbitrary or capricious.”

(Emphasis added.) Thus, in an appeal filed pursuant to § 11-44B-48, the trial court’s standard of review is similar to that applicable to a petition for the common-law writ of certiorari.

In Hallman v. City of Northport, 333 So.2d 152 (Ala.Civ.App.1976), this court addressed the de novo trial specified in the Act and distinguished it from the type of review allowed under § 11-44B-48. In Hallman, this court considered whether a Northport city ordinance had improperly attempted to modify the de novo trial specified in the Act; the ordinance at issue in Hallman provided that “ ‘[rjeview by the court shall be without a jury and be confined to the record, and to a determination of the questions of law presented; the Board’s findings of fact shall be final and conclusive.’ ” Hallman, 333 So.2d at 154. This court stated:

“Section 19 [of the Act] directed a de novo trial upon appeal to the Circuit Court. In the absence of terms of qualification, the meaning of trial de novo is well established by decisions of the appellate courts of this state. Smith v. Civil Service Board of City of Florence, 52 Ala.App. 44, [48,] 289 So.2d 614[, 616 (1974) ]. In that case we said:
“ ‘A true de novo hearing of a matter decided by an inferior court or administrative agency is tried and determined as if no other proceedings had ever taken place. It is a trial anew; a brand new proceeding, as if such proceeding had been commenced in the reviewing court from the start. Ball v. Jones, 272 Ala. 305, 132 So.2d 120 [ (1961) ].’
“There are no qualifying terms limiting the defined meaning of ‘de novo’ in Section 19. It is noticed that it is provided that the Board shall file with the court a certified transcript of the proceeding had before it and its decision. It is also noticed that the court is directed to hear the appeal on the issues made before the Board. However, these provisions are followed with the command that ‘the trial in the court shall be de novo.’ The directions of the rule effectively remove the right to a trial de novo.
“The adopted rule clearly eliminates the accepted meaning of de novo. The rule turns ‘trial de novo’ into a review by common law certiorari. Tarver v. Household Finance Corporation, 45 Ala. App. 344, [346,] 230 So.2d 534[, 535 (1970) ]. It is therefore inconsistent with the Act and is void.
“The rule being without effect, it follows that the acceptance, over objections, of the transcript of the proceedings before the Board, together with the Board’s decision was error. Such tran- . script could not supply evidence of a prima facie case in a trial de novo when objected to by Hallman. Being illegally before the court, the transcript could not support a judgment.
“We are unable to discern the purpose of the Act directing the filing of the transcript of the proceedings before the Board and its decision in the circuit court on appeal, unless it was intended to be used to determine the issues to be tried. The Act does not contain directions as to how the transcript may be used.... The uncertainty of the Act in respect to the purpose of filing the transcript on appeal does not affect the clearly stated right to a trial de novo.”

Hallman, 338 So.2d at 154.

Typically this court finds that the trial court’s application of a more stringent standard does not amount to reversible error. See Rehfeld v. Roth, 885 So.2d 791, 795 (Ala.Civ.App.2004) (stating that any error in applying the Ex parte McLendon, 455 So.2d 863 (Ala.1984), standard to a custody-modification petition was harmless error because the trial court’s determination that the petitioner had satisfied the McLendon standard necessarily meant that the petitioner had met the less stringent best-interests standard); and I.M. v. J.P.F., 668 So.2d 843', 845 (Ala.Civ.App. 1995) (noting that “the trial court applied the McLendon standard ... rather than the ‘best interest’ standard, but because the McLendon standard is more stringent, the trial court’s error in that regard is harmless”). In this case, however, the trial court indicated on the record that if it considered the evidence under the Act it would reach a different result than if it considered the evidence under § 11-44B-48. Therefore, we cannot agree with Sledge that the trial court's error in relying on § 11-44B^48 was necessarily harmless. Accordingly, we reverse the trial court’s judgment and remand the cause for it to reconsider the evidence in light of the standards established by the Act.

Because of our resolution of the above issue, we pretermit consideration of the City’s other issues. On remand, the trial court should consider under the appropriate standards only the evidence presented at the de novo hearing it conducted. Hall-man, supra.

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN, J., concurs.

THOMPSON, P.J., concurs in the result, without writing.

THOMAS, J., concurs in the result, with writing.

DONALDSON, J., recuses himself.

THOMAS, Judge,

concurring in the result.

I agree that the judgment of the Tuscaloosa Circuit Court should be reversed and the cause remanded; however, I do not agree with the rationale in the main opinion. The City of Northport (“the City”) terminated Johnny Sledge’s employment. The Northport Civil Service Board (“the Board”) upheld the City’s decision. The trial court concluded that the appeal was governed by § 11-44B-48, Ala.Code 1975; thus, it reviewed the decision of the Board.

As explained in the main opinion, the appeal is governed by the Northport Civil Service Act, Ala. Acts 1969, Act No. 1225 (“the Act”), which requires the trial court to review the decision of the City de novo. The trial court has not reviewed the City’s decision. I would remand the cause and instruct the trial court to review the City’s decision pursuant to the Act.

      . The record does not indicate the specific date on which the conduct made the basis of this appeal occurred.

      . Wilder also appealed to the circuit court, but his appeal was assigned to a different judge.

      . The City also asserted that Sledge’s allegations of race and disability discrimination as well as retaliation by the City were the subject of litigation pending in the United States District Court for the Northern District of Alabama. Additionally, the record also reflects that, on July 25, 2011, Sledge was awarded unemployment-compensation benefits based on the City’s termination of his employment. The hearing officer for the Alabama Department of Industrial Relations (now known as the Alabama Department of Labor) determined that, because Sledge had taken the scrap metal with the permission of his supervisor, he had not acted dishonestly or engaged in criminal conduct and, thus, was not precluded from receiving unemployment-compensation benefits.


text:
    STILLWATERS RESIDENTIAL ASSOCIATION, INC. v. SW PROPERTIES, LLC.
    2120456.
    Court of Civil Appeals of Alabama.
    June 28, 2013.
    Russell C. Balch of Akridge & Balch, P.C., Auburn, for appellant.
    Thomas A. Radney and David G. Thomas, Alexander City, for appellee.
   THOMAS, Judge.

In 2003, SW Properties, LLC (“SW Properties”), purchased a parcel of property (“the property”) located in Tallapoosa County from “Still Waters Development Co., LTD Partnership” (“SW Development”), by a special warranty deed. On July 19, 2012, SW Properties filed a petition for reformation of the deed in the Tallapoosa Circuit Court (“the trial court”). In the petition, SW Properties asserted that, according to the sales contract between it and SW Development, the property was not subject to any covenants or restrictions but that the deed erroneously contained language indicating that the property was subject to the covenants and restrictions of the Blue Creek Point Subdivision. SW Properties requested, among other things, that the trial court reform the deed to remove the language regarding covenants and restrictions from the deed.

SW Properties filed a motion for a hearing on August 27, 2012. The trial court held a hearing on October 23, 2012. At the hearing, SW Properties informed the trial court that SW Development had failed to respond to the petition for reformation of the deed. The trial court entered a default judgment on October 23, 2012, ordering the reformation of the special warranty deed. On October 25, 2012, StillWaters Residential Association, Inc. (“the association”), filed a motion to intervene, in which it asserted that the property was located within the StillWaters Development and was subject to the covenants and restrictions of the Blue Creek Point Subdivision. The association further asserted that it had recorded a lien on the property for unpaid maintenance fees and assessments.

On November 14, 2012, the association filed a motion to vacate the October 23, 2012, judgment and stated that it was unaware of the judgment when it filed its motion to intervene. The trial court did not rule on either of the association’s motions. The association filed an appeal to our supreme court on February 20, 2013; the appeal was transferred to this court pursuant to § 12-2-7(6), Ala.Code 1975, on March 8, 2013. In its brief on appeal, the association argues that the trial court erred by denying its motion to vacate because it was a necessary party to the action below. However, before we can address the association’s argument, we must first determine whether the appeal is properly before this court.

It is settled law that a party whose motion to intervene has been denied has a right to appeal from that decision. See Shaw v. State ex rel. Hayes, 953 So.2d 1247, 1251-52 (Ala.Civ.App.2006) (citing Thrasher v. Bartlett, 424 So.2d 605, 607 (Ala.1982), and Universal Underwriters Ins. Co. v. Anglen, 630 So.2d 441, 442 (Ala.1993)). This court has held that, “ ‘ “in order to be immediately appealable, an order denying a motion to intervene must be truly final with respect to the proposed intervenor — that is, the order must rule definitively on the party’s participation in the litigation before the [trial] court.” ’ ” D.S. v. Cullman Cnty. Dep’t of Human Res., 42 So.3d 1284, 1285-86 (Ala. Civ.App.2010) (quoting Shaw, 953 So.2d at 1252, quoting in turn United States v. City of Milwaukee, 144 F.3d 524, 528 (7th Cir. 1998)). Furthermore, “1 “[i]t is a well established rule that, with limited exceptions, an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved.” ’ ” Ex paHe Landry, 117 So.3d 714, 718 (Ala.Civ. App.2013) (quoting Owens v. Owens, 739 So.2d 511, 513 (Ala.Civ.App.1999), quoting in turn Taylor v. Taylor, 398 So.2d 267, 269 (Ala.1981)). Despite a thorough review of the record on appeal and the State Judicial Information System ease-detail sheet, we cannot find an order of the trial court addressing the association’s motion to intervene. Therefore, the motion to intervene remains pending before the trial court. Because the trial court has not yet ruled on the association’s motion to intervene, we conclude that the association’s appeal is premature.

Insofar as the association argues that the trial court erred by denying its motion to vacate, we first note that, because the motion to intervene remains pending below, the association was never made a party to the underlying action. Our research does not yield Alabama case-law directly on point; however, “[t]he basic rule that a nonparty cannot appeal the judgment in an action between others seems obviously sensible.” 15A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3902.1 (2d ed.1992). Although a successful intervenor acquires “full status” to bring an appeal, it is also the rule that an “unsuccessful applicant for intervention cannot appeal from any subsequent order or judgment in the litigation.” Shore v. Parklane Hosiery Co., 606 F.2d 354, 356 (2d Cir.1979). Therefore, because it is not a party to the underlying action, the association did not have standing to file a motion to vacate the trial court’s October 23, 2012, judgment, nor does it have standing to appeal from the denial by operation of law of that motion. See Ballentine v. Alabama Farm Credit, ACA, 138 So.3d 1005,1007 (Ala.Civ.App.2013).

Because the motion to intervene remains pending in the trial court, and because the association is not a party to the action, this appeal must be dismissed.

APPEAL DISMISSED.

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

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

      . Included in the record is documentation indicating that SW Development's registered agent had been properly served.

      . In its brief, the association asserts that it filed its appeal to our supreme court after its motion to vacate was denied by operation of law.


author: BURKE, Judge.

text:
    STATE of Alabama v. Emmanuel L. THOMAS.
    CR-10-1401.
    Court of Criminal Appeals of Alabama.
    May 25, 2012.

      Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellant.
    Matthew Cory Drinkard, Grove Hill; and James M. Byrd, Mobile, for appellee.
   BURKE, Judge.

Emmanuel Thomas was convicted of first-degree robbery, a violation of § 13A-8-41, Ala.Code 1975, and second-degree assault, a violation of § 13A-6-21, Ala. Code 1975. He was sentenced to consecutive terms of 28 years’ imprisonment for the robbery conviction and 10 years’ imprisonment for the assault conviction. This Court affirmed his convictions on February 22, 2008. See Thomas v. State (CR-06-1549, February 22, 2008) 21 So.3d 799 (Ala.Crim.App.2008) (table). On March 27, 2008, Thomas filed a petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P., and the circuit court granted his request to proceed in forma pauperis. The petition was subsequently amended on April 25, 2008, and again on December 15, 2009. After a response from the State, the circuit court granted Thomas’s petition and ordered that he be granted a new trial. The State now appeals.

In his initial petition (C. 6-21), Thomas argued that his convictions for first-degree robbery and second-degree assault violated the Double Jeopardy Clause of the United States Constitution because he was being convicted for two offenses based on the same conduct. He also argued that the first-degree-robbery indictment was vague and failed to adequately inform him of the nature of the charge against him. Finally, Thomas contended that the trial judge, as opposed to the circuit clerk, administered the oath to the jury. According to Thomas, his trial counsel was ineffective for failing to raise appropriate objections to the above. Thomas also contended that he was denied effective assistance of appellate counsel because, he says, his attorney failed to “diligently investigate several arguable claims for appeal” and “failed to comb the record for possible errors....” (C. 20-21.) Additionally, Thomas contended that he was denied due process of law when the circuit court failed to poll the jurors.

Thomas amended his petition on April 25, 2008. (C. 36-87.) In the amended petition, he argued that his conviction and sentence were null and void because, he says, the trial judge suffered from “diminished capacity.” (C. 36.) Thomas attached several newspaper articles regarding judicial-ethics charges filed against Judge Stuart DuBose. According to the articles, Judge DuBose claimed that he suffered from diminished capacity that affected his ability to make rational decisions. (C. 38-42.)

On December 15, 2009, Thomas filed a second amended petition in which he argued that he was deprived of due process of law because, according to Thomas, the trial court never read the indictments for first-degree robbery, criminal mischief, and resisting arrest to the jury. Therefore, Thomas argues that “jeopardy never attached in the Robbery 1st degree case, the Criminal Mischief case or the Resisting Arrest case.” (C. 68.) Thomas also argued that jeopardy did not attach to those convictions as well as his second-degree-assault conviction because he “never pleaded to the [indictments] in the presence of the jury and the plea ... was never stated to the jury.” (C. 69-70.) Lastly, Thomas alleged that he was denied effective assistance of appellate counsel because his attorney did not raise these arguments on appeal.

In its response, the State argued that Thomas’s petition was due to be denied on several grounds. As to Thomas’s allegations relating to double jeopardy, an improperly sworn jury, and the contention that the jury was not polled, the State asserted that those arguments were due to be denied pursuant to Rules 32.2(a)(3)-(5), Ala. R.Crim. P., because they could have been raised at trial or on appeal, but were not. Further, the State argued that those allegations, as well as the allegations relating to the trial judge’s mental capacity, were not sufficiently specific as required by Rule 32.6, Ala. R.Crim. P., nor were they meritorious.

As to Thomas’s ineffective-assistance-of-counsel claims, the State argued that Thomas failed to satisfy the two-part test laid out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, the State alleged that Thomas failed to demonstrate that his attorney’s performance was deficient and that, but for the alleged failures, the outcome of the trial would have been different. The State made the same arguments relating to Thomas’s claim of ineffective assistance of appellate counsel.

In its order, the circuit court addressed only the first-degree robbery conviction, case number CC-2006-311. (C. 87.) The court stated: “[I]t is hereby ORDERED, ADJUDGED, and DECREED, on the grounds that the trial court failed to read the Robbery First Degree Indictment to the jury, that the Motion for Relief from Judgment be granted and Emmanuel Thomas be granted a new trial.” (C. 87.)

This Court has held that a trial court is not necessarily required to read an indictment to the jury. Wiggins v. State, 347 So.2d 543, 545 (Ala.Crim.App.1977). The only requirement is that the “jury must be fairly appraised of the nature of the charges against the accused.” Id. See also Mitchell v. State, 450 So.2d 140, 142 (Ala.Civ.App.1984) (“The reading of an indictment to the jury is not required; only that the jury be fairly informed of the charges against the accused.”), citing Wiggins v. State, supra. Additionally, in Knotts v. State, 686 So.2d 431, 458 (Ala. Crim.App.1995), the appellant argued that the jury was misled by the court’s generic instructions relating to the underlying offenses. This Court did not find plain error in the trial court’s failure to read the indictment and held that ■

“the evidence presented, the details and explanations of each indictment presented by the state in its opening statement and closing arguments, the trial court’s instructions in their entirety, and the comments of the trial court to the jurors at the time of voir dire examination and at the commencement of the trial about the nature of the cases to be tried, considered together, sufficiently defined the crimes charged.... In our opinion, there is no reasonable probability that the jury would have found the appellant guilty of a crime not charged or of a theory not presented.”

Id. Thus, so long as the jury understands what it is called on to decide, there is no error in a trial court’s failure to read the indictment in its entirety.

A review of the record reveals that, before any evidence was received, the trial court read only the indictment for second-degree assault to the jury. (R. 9-10.) The court then stated: “Each of the other indictments were issued at the same time before the same grand jury.” (R. 10.) However, at the conclusion of the trial, the court issued the following charge to the jury:

“The defendant is charged in this case with consolidated indictment number one fifty-eight with the offense of robbery in the first degree in 'violation of Section 13A-8-41. A person commits the crime of robbery in the first degree if, in the course of committing a theft, he uses or threatens the imminent use of force against the person of the owner of the property or the property — or any person present with the intent to overcome that person’s physical resistance or physical power of resistance. And, in so doing, he is armed with a deadly weapon or dangerous instrument.
“I’ll say that again in case I messed it up.”

(R. 293-94.) The court then restated the same. Next, the court stated:

“That the defendant, Emmanuel Thomas committed or attempted to commit a theft of a cash register containing U.S. currency, that in the course of attempting to commit the theft, the defendant either used force against the person of [the victim] with the intent to overcome his physical resistance or his physical power to resist, or threatened imminent use of force against the person of [the victim] with the intent to compel acquiescence in the taking of or escaping with the property, and that the defendant was armed with a deadly weapon or dangerous instrument.”

(R. 294.) The court went on to explain the crime of theft of property as well as to define a deadly weapon. (R. 295.) Therefore, it appears from the record that the jury was fairly appraised of Thomas’s first-degree robbery charge and understood what it was called on to decide. Accordingly, the circuit court erred in granting Thomas’s petition on the ground that the trial court “failed to read the Robbery First Degree Indictment to the jury.”

Thomas also argued that jeopardy did not attach because the judge did not read the robbery indictment to the jury. It is well settled that jeopardy attaches when the jury is empaneled and sworn and the indictment is read. See Murray v. State, 210 Ala. 603, 98 So. 871, 872 (1924); Epps v. State, 28 Ala.App. 105, 179 So. 895, 396 (1938); Ex parte Davidson, 736 So.2d 1146, 1148 (Ala.Crim.App. 1999). However, nothing in these cases requires that the indictment be read directly after the jury is sworn. Because the trial court’s above-stated instructions substantially tracked the language of Thomas’s robbery indictment (C. 22), we find that the court did in fact read the indictment to the jury. Consequently, jeopardy attached to Thomas and his argument is without merit.

“The standard of review on appeal in a post conviction proceeding is whether the trial judge abused his discretion when he denied the petition.” Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App.1992). “A judge abuses his discretion only when his decision is based on an erroneous conclusion of law or where the record contains no evidence on which he rationally could have based his decision.” Miller v. State, 63 So.3d 676, 697 (Ala.Crim.App.2010). Since the circuit court reviewing Thomas’s Rule 32 petition based its ruling solely on the ground that the trial court failed to read the indictment to the jury, it appears that its decision was based on an erroneous conclusion of law. Accordingly, the circuit court abused its discretion in granting Thomas’s petition, and its judgment is due to be reversed.

Additionally, we note that the circuit court addressed only the issue relating to the trial court’s failure to read the robbery indictment to the jury. The circuit court is hereby instructed to address the remaining issues raised in Thomas’s petition.

For the foregoing reasons, the judgment of the circuit court is reversed and this cause is remanded for proceedings consistent with this opinion. Due return should be made within 28 days.

REVERSED AND REMANDED.

WELCH and KELLUM, JJ„ concur.

WINDOM, P.J., and JOINER, J., concur in the result.

      . Thomas was also convicted of criminal mischief and resisting arrest. He was sentenced to 6 months’ imprisonment for each of those convictions to run concurrently with the 10-year sentence for his assault conviction.

      . Thomas’s appellate counsel filed a "no-merit” brief in substantial compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . We note that Thomas's in forma pauperis application showed that he had deposited the sum of $657.14 in his inmate account in the 12 months preceding the filing of his application. (C. 34.) That sum is more than twice the amount necessary to pay the filing fee for a Rule 32 petition.
      The circuit court would not have abused its discretion if it had denied the request to proceed in forma pauperis. It could have issued an order requiring Thomas to pay the requisite filing fee before ruling on the petition. As this Court held in Ex parte Wyre, 74 So.3d 479 (Ala.Crim.App.2011):
      ”[A]n inmate who has appreciably more than the amount necessary to pay a filing fee deposited in his inmate account in the 12 months preceding the filing of an [in forma pauperis] request is not indigent as that term is defined in Rule 6.3(a), Ala. R.Crim. P. Wyre had $876.52 deposited to his account in that period — more than twice the amount necessary to pay the filing fee. Thus, he is not indigent."
      74 So.3d at 482.

      . We note that on appeal, Thomas did not argue that the jury was not properly sworn and empaneled. " ' "[AJllegations ... not expressly argued on ... appeal ... are deemed by us to be abandoned.” United States v. Burroughs, 650 F.2d 595, 598 (5th Cir.), cert. denied, 454 U.S. 1037, 102 S.Ct. 580, 70 L.Ed.2d 483 (1981).' ” Burks v. State, 600 So.2d 374, 380 (Ala.Crim.App.1991). "We will not review issues not listed and argued in brief.” Brownlee v. State, 666 So.2d 91, 93 (Ala. Crim.App. 1995).