author: Sandra Bell, pro se. PARKER, Justice SHAW, Justice MOORE, Chief Justice

text:
    Sandra BELL v. Luther STRANGE, as Attorney General of the State of Alabama, et al.
    1120603.
    Supreme Court of Alabama.
    Sept. 27, 2013.
    Rehearing Denied Nov. 22, 2013.
   Sandra Bell, pro se.

Luther Strange, atty. gen., and Andrew L. Brasher, deputy atty. gen., and Margaret L. Fleming and Laura E. Howell, asst, attys. gen., for appellees.

STUART, Justice.

AFFIRMED. NO OPINION.

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

PARKER and SHAW, JJ., concur specially.

MOORE, C.J., dissents.

PARKER, Justice

(concurring specially).

On April 28, 2011, the Alabama Legislature passed Act No. 2011-197 (“Act No. 197”), a Senate Joint Resolution, creating the “Constitutional Revision Commission” (“the commission”). Act No. 197 charged the commission with reviewing certain articles of the Alabama Constitution and ■with recommending amendments to that document to the legislature.

On November 5, 2012, Sandra Bell filed a declaratory-judgment action, naming as defendants in their official capacities Attorney General Luther Strange, Lieutenant Governor Kay Ivy, President Pro Tem-pore of the Alabama Senate Del Marsh, Speaker of the Alabama House Mike Hubbard, and Secretary of State Beth Chapman. In her complaint, Bell asked the trial court to declare Act No. 2012-275 (“Act No. 275”) and Act No. 2012-276 (“Act No. 276”), Ala. Acts 2012, violative of Art. XVIII, § 286, Ala. Const.1901, which provides the exclusive means of rewriting the Alabama Constitution. According to Bell, Act No. 197 circumvented the exclusive procedure for proposing a new constitution, as provided in § 286, by establishing the commission to recommend changes in the Alabama Constitution article by article. She also asked the trial court to declare that the legislature exceeded its constitutional authority by enacting Act No. 275 and Act. No. 276. She further sought an injunction prohibiting the secretary of state from certifying the results of the November 2012 vote on Amendments 9 (Act No. 275) and 10 (Act No. 276), which propose repealing and replacing certain sections of the Alabama Constitution.

On January 16, 2018, the trial court dismissed Bell’s complaint on the basis that her complaint failed to state a justicia-ble controversy. On February 21, 2013, Bell filed her notice of appeal. On appeal, Bell addresses her arguments exclusively to Act No. 197, the joint resolution establishing the commission, instead of to Act No. 275 and Act No. 276, the acts proposing article by article constitutional amendments to a vote of the people. Thus, Bell has waived her arguments as to Act No. 275 and Act No. 276.

For that reason, I concur with the Court’s affirmance of the trial court’s dismissal of Bell’s complaint. I write separately to express my concern not with Act No. 197 specifically, but with legislative proposals, allegedly proposed to the people pursuant to Art. XVIII, § 284, Ala. Const. 1901, to amend many sections of the Alabama Constitution by the validation of a single amendment, as was done with Act No. 275 and Act No. 276, which resulted in Amendments 9 and 10, respectively, being placed on the November 6, 2012, ballot.

As Chief Justice Torbert noted in his special concurrence in State v. Manley, 441 So.2d 864 (Ala.1988):

“There is a difference between the power of the Legislature to enact statutes and the power to change the Constitution. Jones v. McDade, 200 Ala. 230, 75 So. 988 (1917). In Bourbon v. Governor of Maryland, 258 Md. 252, 257-58, 265 A.2d 477, 480 (1970), the Maryland Court of Appeals, considering the legislature’s role in initiating constitutional change, wrote:
“ ‘[T]he legislature does not exercise its ordinary legislative power or any sovereignty of the people that has been entrusted to it but acts under a limited power which the people have conferred upon it and which with equal propriety and appropriateness might have been conferred upon either house, the governor, a special commission or other body or tribunal. In proposing amendment of the Constitution the legislature does not have the plenary powers it has in enacting laws but only the powers specifically delegated to it.’
“(Citations omitted). The Legislature has plenary power with respect to statutory matters, but only a limited power as to constitutional matters. Johnson v. Craft, [205 Ala. 386, 87 So. 375 (1921) ]; Opinion of the Justices [No. 92 ], 252 Ala. 89, 39 So.2d 665 (1949). In regard to its powers to change the Constitution, the Legislature, as the representative of the people, has only those powers specifically granted by the people through the Constitution. Opinion of the Justices [No. 116], [254 Ala. 183, 47 So.2d 713 (1950) ].”

Manley, 441 So.2d at 877-78 (Torbert, C.J., concurring).

The people, through the Alabama Constitution, have entrusted to the legislature two powers in regard to amending or changing the constitution: 1) to propose an amendment to the people for validation by their vote, pursuant to either § 284 or Art. XVIII, § 284.01, Ala. Const.1901, and 2) to call a constitutional convention, pursuant to § 286, which will commence only upon a majority vote of the people. The effect of an article-by-article amendment approach is the creation of a third legislative power in regard to changing the constitution. This is an enlargement of legislative power in contravention of Art. I, § 2, Ala. Const. 1901, which provides, in pertinent part: “That all political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit.... ”

It is the “tendency of vested power to broaden and exalt itself.” Ellingham v. Dye, 178 Ind. 336, 345, 99 N.E. 1, 4 (1912). For this reason, it is “[t]he people[] in whom resides the vital power in reference to organic law” and not the legislature. Collier v. Frierson, 24 Ala. 100, 105 (1854). Through the constitution, the people have “ ‘prescribe^] the exclusive modes by which it may be altered or amended, or its effect and operation changed.’ ” Manley, 441 So.2d at 873 (quoting Johnson v. Craft, 205 Ala. 386, 393, 87 So. 375, 380 (1921)). As stated by Chief Justice Torbert, the legislature is limited to the powers entrusted to it by the people. Because of the tendency of governments to expand their own power and suppress the rights of the people, this Court must vigilantly protect the “inalienable and indefeasible right” of the people to create and maintain the form and function of the State “in such manner as they may deem expedient.” Art. I, § 2, Ala. Const.1901.

SHAW, Justice

(concurring specially).

In the trial court, the pro se plaintiff, Sandra Bell, attacked two acts of the legislature, Act No. 2012-275 and Act No. 2012-276, Ala. Acts 2012, which allowed for a vote of the electorate on what were styled as two constitutional “amendments” altering Article XII and Article XIII of the Alabama Constitution of 1901. Although the legislature may adopt an act submitting to the electorate an amendment to the constitution, see Ala. Const.1901, Art. XVIII, § 284, it may not adopt an act submitting to the electorate a new constitution, because that must be done by a constitutional convention, see Ala. Const.1901, Art. XVIII, § 286. State v. Manley, 441 So.2d 864 (Ala.1983).

The defendants raised numerous issues in the trial court, including: that the case was barred by the legislative immunity of all the défendants, that the case was moot, and that there had been no violation of § 284 and § 286. None of these issues are challenged on appeal. Instead, in her brief, Bell challenges only Act No. 2011-197, Ala. Acts 2011, a Senate Joint Resolution that created the Constitutional Revision Commission, the entity that recommended Act Nos. 2012-275 and 2012-276 to the legislature.

“When an appellant confronts an issue below that the appellee contends warrants a judgment in its favor and the trial court’s order does not specify a basis for its ruling, the omission of any argument on appeal as to that issue in the appellant’s principal brief constitutes a waiver with respect to the issue.”

Fogarty v. Southworth, 953 So.2d 1225, 1232 (Ala.2006). See also Tucker v. Nichols, 431 So.2d 1263,1265 (Ala.1983) (“[T]he appellant has an affirmative duty of showing error upon the record.”), and Rule 28(a)(10), Ala. R.App. P. (providing that an appellant’s brief shall contain an argument “with respect to the issues presented”). Because Bell has elected not to address the issues upon which the defendants relied in the trial court (immunity, mootness, and lack of merit), she has waived those issues for purposes of appeal. We cannot address those issues on Bell’s behalf: “[T]his Court will not ‘reverse a trial court’s judgment ... based on arguments not made to this [Cjourt.’ Brown v. WalMart Stores, Inc., 864 So.2d 1100, 1104 (Ala.Civ.App.2002). This principle applies with particular force to issues involving the constitutionality of a statute.” Yellow Dog Dev., LLC v. Bibb Cnty., 871 So.2d 39, 41-42 (Ala.2003) (citations omitted). Bell’s failure to attempt to show why the case is not barred by legislative immunity, why it is not moot, and why Act No. 2012-275 and Act No. 2012-276 are unconstitutional requires that the judgment of the trial court be affirmed.

As to the issue whether the Senate Joint Resolution creating the Constitutional Revision Commission sets up a scheme that is unconstitutional under the rationale of Manley, supra, I note that joint resolutions are not law.

“A resolution such as this one is not a law.... The Legislature has no power to make or change law by resolution. Art. IV, § 61, Ala. Constitution (‘No law shall be passed except by bill....’); Gunter v. Beasley, 414 So.2d 41 (Ala.1982). Whatever the Legislature may have intended by Resolution 99-94 is irrelevant to our resolution of the issues presented on this appeal. The controlling law here is that expressed in the applicable ... acts. See Opinion of the Justices No. 275, 396 So.2d 81 (Ala.1981); Opinion of the Justices No. 265, 381 So.2d 183 (Ala.1980) (a statute cannot be amended by a joint resolution of the Legislature).”

Laidlaw Transit, Inc. v. Alabama Educ. Ass’n, 769 So.2d 872, 883 (Ala.2000). The legislature, however, is by no means bound by the commission, which has no power or authority: it only makes recommendations. The commission might recommend to the legislature an act to propose a constitutional change that violates § 284 of the constitution, or it might recommend an act that does not violate § 284. It is the legislature’s adoption of the recommended act that might be unconstitutional. The focus is not on “[wjhatever the Legislature may have intended” by its resolution; instead, the “controlling law here is that expressed in the applicable ... acts,” namely, Act No. 2012-275 and Act No. 2012-276. It was the legislature, not the commission, that purportedly attempted to revise or amend the constitution. Act No. 2011-197 could not change the law or constitution because it is itself a resolution; it is not a law. Instead, Act No. 2012-275 and Act No. 2012-276 changed the law and the constitution, but they are not challenged on appeal.

MOORE, Chief Justice

(dissenting).

Every judicial officer in this State takes an oath to uphold the Constitution of the United States and the Constitution of the State of Alabama. Art. XVI, § 279, Ala. Const.1901. I consider this case to be one of the most important to be before this Court in recent history. For the reasons stated herein, I respectfully dissent from the majority’s no-opinion affirmance of the trial court’s dismissal of this case. From my own inquiry I have found very few citizens who fully understand the changes made by the recent amendments to the Alabama Constitution under the act challenged in this case or who comprehend the potential danger of future changes to the constitution under this act. This Court spends the majority of its time deliberating on the meaning of the words in statutes, yet here we decline to review the action of the legislature — one branch of our government — in initiating a revision of the entire Alabama Constitution.

I. Background

A. Facts

In 2011, the legislature passed and the governor signed Senate Joint Resolution 82, which created a 12-member Constitutional Revision Commission (“the commission”). Act No. 2011-197, Ala. Acts 2011 (“the Act”). The Act gave each of three specified members — the governor, the speaker of the House of Representatives, and the president pro tempore of the Senate — the authority to appoint three additional members. The intellectual engine of the Commission is the Alabama Law Institute:

“(c) The Alabama Law Institute shall serve as staff for the Commission. The institute will analyze the current Constitution of Alabama of 1901, as amended, with a view toward identifying those provisions which are antiquated, unnecessary, or duplicative of other provisions. The goal of the institute’s analysis shall be the following:
“(1) To provide the commission with specific guidance for constitutional revision.
“(2) To recommend to the commission an article-by-article revision of the constitution.
“(3) To report its recommendations to the commission of articles to be revised for the next regular session of the Legislature by December 31 beginning December 31, 2011.”

Act No. 197, § (c).

The Act created a timetable for review of 11 of the 18 articles of the Alabama Constitution.

“(d) The goal of the Legislature is to consider reviewing the Constitution according to the schedule as follows:
“(1) In 2011:
“Article XII, Private Corporations.
“Article XIII, Banking.
“Remove unconstitutional language throughout the Constitution.
“(2) In 2012:
“Article III, Distribution of Powers.
“Article IV, Legislative Department.
“Article IX, Representation.
“(8) In 2013:
“Article I, Declaration of Rights.
“Article V, Executive Department.
“Article XIV, Education.
“(4) In 2014:
“Article VII, Impeachments.
“Article X, Exemptions.
“Article XVII, Miscellaneous.”

Act No. 197, § (d).

Six of the remaining seven articles “shall be excluded from consideration by the commission due to a previous revision of the article or because revision is not considered needed....” Act No. 197, § (e). Finally, “Article XI Taxation is excluded from the consideration by the commission at this time and not subject to the timetable established by this resolution.” Act No. 197, § (f) (emphasis added).

The Act charged the commission with “the following duties and responsibilities”:

“(1) Create a public awareness of and educate the public on the changes recommended.
“(2) Provide the Legislature with recommendations for any changes to the article under consideration.
“(3) Report its findings, conclusions, recommendations, and suggestions to each article to be considered in each House of the Legislature by the third legislative day of each year after 2011.”

Act No. 197, § (g).

Nine years before the passage of the Act, the then director of the Alabama Law Institute identified an article-by-article revision of the constitution according to a multi-year timetable as one approach to revising the 1901 constitution. See Robert L. McCurley, Jr., Constitutional Revision, 63 Ala. Law. 92 (2002). “Under this first approach, approximately two or three articles are considered and revised by the legislature each year. A revision of the entire constitution could be accomplished in the next three years.” Id. at 93. The defendants in this case noted that the commission “serves primarily as an intermediary giving voice to the Alabama Law Institute’s recommendations for constitutional change.” (Defendants’ trial brief of Dec. 12, 2012, p. 4.)

Pursuant to the schedule set out in the Act, the commission prepared proposed revisions of Articles XII and XIII. The legislature approved the proposals, which became statewide Amendments 9 and 10 on the 2012 general election ballot. Both were adopted.

B. Procedural History

On November 5, 2012, one day before the general election, Sandra Bell filed a complaint in the Montgomery Circuit Court seeking declaratory and injunctive relief against five Alabama state officials: the attorney general, the lieutenant governor, the president pro tempore of the Senate, the speaker of the House of Representatives, and the secretary of state. “The goal of [the Act],” Bell stated, “is to allow the Legislature ... to propose a new constitution for the State article by article according to a certain schedule.” According to Bell, statewide Amendments 9 and 10, scheduled for a vote the following day, “would beg[i]n the process of rewriting the entire Constitution of Alabama of 1901....”

The Act, Bell alleged, “violated Section 286 of the Constitution of Alabama of 1901, which provides the exclusive method for the purpose of proposing a new constitution.” She further alleged that submission of the two proposed amendments to the voters, which resulted from implementation of the Act, also violated § 286. Additionally, she alleged that the Act abridged her right as a voter under § 286 “to approve or disapprove the call for constitutional convention.” Bell sought a judgment declaring that the defendants had “acted in excess of their authority as set forth in Section 286 of the Constitution of Alabama of 1901.” She also sought preliminary and permanent injunctions directing the secretary of state not to certify the results of the vote on Amendments 9 and 10. The trial court took no action on Bell’s complaint in the afternoon before election day.

On November 27, 2012, the legislative defendants filed a motion to dismiss Bell’s action, claiming absolute legislative immunity. On December 12, 2012, all the defendants collectively filed a motion to dismiss, reiterating the defense of legislative immunity and arguing that the certification of the election results on November 28, 2012, rendered injunctive relief against the secretary of state moot. Thus, they argued, legislative immunity and mootness combined to render the controversy nonjusticiable. On January 16, 2013, the trial court held a hearing on the motion to dismiss. Bell presented to the court a brief opposing the motion, which is not included in the record; a transcript of the hearing, however, is. She argued as follows:

“I am here about our State Constitution.
“[W]e need you to determine whether the Legislature, if they acted within their constitutional ability in putting forth [the Act], in passing that. We don’t believe they were existing within their authority.
“I’ll reference Alabama v. Manley [, 441 So.2d 864 (Ala.1983)]. I have a copy here for you, Judge.”

Referring to Amendments 9 and 10, Bell stated:

“According to [§] 286 in our Constitution, a Constitutional Convention has to be put together to do that, not by the legislative process. They can’t do it this way. It has to be very narrow and limited as to how they can amend it through this method, through the legislative method. It can only be done through the constitutional method according to Manley.
“If you look at what they are planning to do in 2011, it was dealing with private corporations, banking, and even removing things all the way through the Constitution. And they can’t do that according to Manley.”

The defendants, resting on their brief, did not present argument at the hearing. During the hearing the trial court gave no indication of its views on the motion. Later the same day the court granted the motion to dismiss by noting on the bottom of the first page: “1/16/13 Granted. Dismissed.”

On appeal Bell renews her argument that only a constitutional convention called pursuant to § 286 can engage in the broad revision of the Alabama Constitution that the Act contemplates. The defendants in response argue primarily that the matter is nonjusticiable for lack of a proper defendant.

II. Standard of Review

“Where a [Rule] 12(b)(6)[, Ala. R. Civ. P.,] motion has been granted and this Court is called upon to review the dismissal of the complaint, we must examine the allegations contained therein and construe them so as to resolve all doubts concerning the sufficiency of the complaint in favor of the plaintiff. First National Bank v. Gilbert Imported Hardwoods, Inc., 398 So.2d 258 (Ala. 1981). In so doing, this Court does not consider whether the plaintiff will ultimately prevail, only whether he has stated a claim under which he may possibly prevail. Karagan v. City of Mobile, 420 So.2d 57 (Ala.1982).”

Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985). “[I]f under a provable set of facts, upon any cognizable theory of law, a complaint states a claim upon which relief could be granted, the complaint should not be dismissed.” Id.

III. Justiciability

A. Legislative Immunity

The defendants are correct that ordinarily legislators cannot be sued for their role in enacting legislation. “It is beyond doubt that the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts.” United States v. Brewster, 408 U.S. 501, 525, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1971) (quoted in Marion v. Hall, 429 So.2d 937, 944 (Ala.1983) (Torbert, C.J., concurring specially)). Invocation of this principle, however, misses the point. Bell does not attack the process by which the Act was passed. She instead argues that the Act itself is unconstitutional. Surely an unconstitutional act may be attacked in the courts without implicating legislative immunity. A number of Supreme Court cases “reflect a decidedly jaundiced view towards extending the Clause so as to privilege illegal or unconstitutional conduct beyond that essential to foreclose executive control of legislative speech or debate and associated matters such as voting and committee reports and proceedings.” Gravel v. United States, 408 U.S. 606, 620, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972).

The legislators are named as defendants, not for their role in passing the law, but as representatives of the body that is administering the law. The Act creates a Constitutional Revision Commission within the legislature and a procedure for the commission to propose large-scale revision to the constitution. The legislature’s role in administering the revision process under the Act makes the legislators proper defendants, just as the head of an executive agency that implements an unconstitutional law may be sued to enjoin enforcement of the law. Two of the legislators, the speaker of the House and the president pro tempore of the Senate, sit on the commission and have appointed six of the other members. Thus, between themselves and their appointees they account for 8 of the 12 members of the commission. Four legislative committee chairs are ex officio members of the commission. Act No. 197, § (a)(7). The commission is staffed by the Alabama Law Institute, an official advisory body to the legislature whose “reports, studies and recommended publications shall be printed and shall be distributed by the Secretary of State in the same manner as acts of the Legislature.” §§ 29-8-4 and -5, Ala.Code 1975. One of the “duties and responsibilities” of the commission is to “[p]rovide the Legislature with recommendations for any changes to the article under consideration.” Act No. 197, § (g)(2). See Albert L. Sturm, The Procedure of State Constitutional Change — With Special Emphasis on the South and Florida, 5 Fla. St. U.L.Rev. 569, 585 (1977) (“Constitutional commissions were developed initially and have been used primarily, as auxiliary staff arms of state legislative assemblies.”).

In Bush v. Orleans Parish School Board, 188 F.Supp. 916 (E.D.La.1960), affd, 365 U.S. 569, 81 S.Ct. 754, 5 L.Ed.2d 806 (1961), the federal district court enjoined a legislative committee from assuming control of the New Orleans public schools. The committee and its members claimed legislative immunity.

“The argument is specious. There is no effort to restrain the Louisiana Legislature as a whole, or any individual legislator, in the performance of a legislative function. It is only insofar as the lawmakers purport to act as administrators of the local schools that they, as well as all others concerned, are sought to be restrained from implementing measures which are alleged to violate the Constitution. Having found a statute unconstitutional, it is elementary that a court has power to enjoin all those charged with its execution. Normally, these are officers of the executive branch, but when the legislature itself seeks to act as executor of its own laws, then, quite obviously, it is no longer legislating and is no more immune from process than the administrative officials it supersedes.”

188 F.Supp. at 922. In this case, two of the legislative defendants sit on the commission and are authorized to appoint six other members who together with them constitute a two-thirds majority of the commission. Thus, the legislature is both the law-making and law-implementing agency. The legislature, acting as “executor of its own laws ... is no longer legislating” and thus is not cloaked with legislative immunity. See Ex parte Simpson, 36 So.3d 15, 30 (Ala.2009) (“ ‘[Legislative] immunity applies only to actions that are inherently legislative (policy-making) as opposed to administrative (policy-applying ).’ ” (quoting Grider v. City of Auburn, 628 F.Supp.2d 1322, 1336 (M.D.Ala.2009))); Black’s Law Dictionary 45 (6th ed. 1990) (defining “[a]dministrative acts” as “[t]hose acts which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body_”).

Furthermore, the legislature, when proposing amendments to the constitution, does not act in its law-making capacity. When considering ordinary legislation, a majority vote suffices for passage and gubernatorial approval is required. §§ 63, 125, Ala. Const.1901. Bills proposing constitutional amendments, however, require a three-fifths vote of all members, and no executive approval is needed. §§ 284, 287, Ala. Const.1901. See Gafford v. Pemberton, 409 So.2d 1367,1374 (Ala.1982) (noting “differences between proposed constitutional amendments and acts of the Legislature”); Johnson v. Craft, 205 Ala. 386, 394, 87 So. 375, 381 (1921) (stating that “in proposing amendments to [the constitution], to be voted upon by the electorate, the Legislature is not exercising its other power to make laws”).

B. Mootness

The defendants argue that the claim for injunctive relief to prevent the secretary of state from certifying the results of the vote on Amendments 9 and 10 is now moot. The election is over and the vote was certified on November 28, 2012. However, under Alabama law the holding of an election on a constitutional amendment followed by certification of the results does not preclude judicial inquiry. “The theory that a favorable vote by the electorate, however unanimous, on a proposal to amend a Constitution, may cure, render innocuous, all or any antecedent failures to observe commands of that Constitution in respect of the formulation or submission of proposed amendments thereto, does not prevail in Alabama....” Johnson v. Craft, 205 Ala. at 400, 87 So. at 387. In Craft, the Court set aside a “road-bond” amendment in response to a constitutional challenge filed 10 months after the amendment was certified as adopted. Id.

In this case, Bell’s challenge, to Amendments 9 and 10 was filed a day before the election, not 10 months after. If the Act is unconstitutional, then the amendments presented to the electorate in accordance with its plan are invalid. “[Ejvery principle of public law and sound constitutional policy requires the courts to pronounce against every amendment, which is shown not to have been made in accordance with the rules prescribed by the fundamental law.” Collier v. Frierson, 24 Ala. 100, 109 (1854). See also Hunt v. Decatur City Bd. of Educ., 628 So.2d 398, 396-97 (Ala.1993) (holding that the rule that “prescribed amendment procedures must be strictly followed ... applies notwithstanding a vote by the electorate in favor of the amendment”).

IV. Merits

A. Amendment versus Revision

Sections 284 through 286 of the Alabama Constitution provide the exclusive modes for amending, altering, or revising the constitution. State v. Manley, 441 So.2d 864, 873 (Ala.1983). Section 284 prescribes the manner in which “[ajmendments may be proposed to this Constitution by the legislature.” Three-fifths of all the members elected to both the Alabama Senate and the Alabama House of Representatives must approve the proposed amendments, after which the proposals must proceed to a vote by the electorate. Id. If approved by a majority of voters, “such amendments shall be valid to all intents and purposes as parts of this Constitution.” Id.

Section 286 prescribes the manner of holding a convention “for the purpose of altering or amending the Constitution of this state.” § 286, Ala. Const.1901. A majority of the legislature must approve “an act or resolution calling a convention,” after which the voters must decide “the question of convention or no convention.” Id.

“[Njothing herein contained shall be construed as restricting the jurisdiction and power of the convention, when duly assembled in pursuance of this section, to establish such ordinances and to do and perform such things as to the convention may seem necessary or proper for the purpose of altering, revising, or amending the existing Constitution.”

§ 286, Ala. Const.l901(emphasis added).

In 1983, this Court considered whether the Alabama Constitution permitted the legislature to submit to the voters a total revision of the constitution as an amendment under § 284 without calling a constitutional convention. “[Tjhe legislature’s power to initiate proceedings toward a new constitution,” the Court held, “is limited to the provisions of § 286.” Manley, 441 So.2d at 876. The proposed “amendment” would have repealed the existing constitution and replaced it with a new constitution. The Manley Court held the act unconstitutional because it embodied a plan to revise the constitution, rather than merely to amend it. Id. at 872-75. “[Tjhe Constitution distinguishes between ‘amendment’ and ‘revisions.’ ... Only § 286, providing for conventions, speaks of ‘revisions’ to the Constitution; § 284, providing for direct proposals by the Legislature, speaks only of alterations or amendments.” Id. at 878 (Torbert, C.J., concurring specially). This “juxtaposition” reveals “that the people intended to reserve to themselves [by means of a constitutional convention] the power of general revision.” Id. at 878-79 (Torbert, C.J., concurring specially).

Section 284 provides that amendments duly approved “shall be valid to all intents and purposes as parts of this Constitution.” § 284, Ala. Const.1901 (emphasis added). A replacement document does not become “part of’ the document sought to be replaced because “to destroy is not to amend. A thing amended survives.” Manley, 441 So.2d at 875 (quoting City of Ensley v. Simpson, 166 Ala. 366, 52 So. 61, 65 (1909)). Sections 284 and 286 preclude the legislature from initiating a wholesale revision of the constitution. “[Ojnly conventions have the power to make ... sweeping change.” Manley, 441 So.2d at 875. This Court has distinguished between the “legislative mode” for amending the constitution and the “convention mode” for revising it:

“ ‘[T]he purpose of the legislative mode is to bring about amendments which are few and simple and independent; and on the other hand, that of the mode through Conventions is to revise the entire Constitution, with a view to propose either a new one or, as the greater includes the less, to propose specific and particular amendments to it. Where a few particular amendments only are desired, if the Constitution provides for both modes, the legislative mode should be employed; but if a revision is or may be desired, the mode by a Convention only is appropriate, or ... permissible.’ ”

Manley, 441 So.2d at 869 (quoting John Alexander Jameson, A Treatise on Constitutional Conventions § 574c (4th ed. 1887)).

Constitutional revision can take two forms: (1) replacing the current constitution with a new constitution, or (2) amending the current constitution so substantially as to transform it into a different document. “[A] revision of the whole Constitution [has] the purpose of proposing either, first, a new one, or, secondly, the old one, if on the whole satisfactory, but with such amendments as to the Convention should seem desirable.” Manley, 441 So.2d at 870 (quoting Jameson, § 574c). A § 286 revision, therefore, can occur even if the constitution is not replaced in its entirety.

B. The Express Purpose of the Act is Revision, Not Amendment

The Act appoints the Alabama Law Institute to “analyze the current Constitution of Alabama of 1901, as amended, with a view toward identifying those provisions which are antiquated, unnecessary, or duplicative of other provisions,” and empowers the Institute “[t]o provide the commission with specific guidance for constitutional revision [and t]o recommend to the commission an article-by-aHicle revision of the constitution.” Act No. 197, § (c) (emphasis added). In addition to naming the new commission the Constitutional Revision Commission, the Act used the word “revise” or “revision” with respect to the constitution or its articles a total of four times. See Act No. 197, §§ (c) & (e). A “revision” is “[a] general and thorough rewriting of a governing document in which the entire document is open to amendment.” Black’s Law Dictionary 1434 (9th ed. 2009). The Act never refers to “amending” or “altering” the constitution, only to “revising” it.

C. Only a Convention Can Revise the Constitution

Contrary to the defendants’ argument (Strange’s brief, pp. 13-14), the exclusion of 7 of 18 articles of the constitution from review for possible change does not make the Act any less of a plan to revise the constitution. The Act sets a four-year timetable for legislative review of articles I, III-V, VII, IX-X, XII-XIV, and XVII. Because they were previously amended, or because “revision is not considered needed,” Articles II, VI, VIII, XI, XV, XVI, and XVIII are excluded from consideration by the commission. Act No. 197, §§ (d) & (e). Although specifically assigning only 11 out of 18 articles to the commission for review, the legislature in the process has reviewed every article in the constitution. Instead of serving, therefore, as the Act’s saving grace, the exclusion of seven articles from review by the commission vividly illustrates the fatal flaw of the Act. The legislature, not the people, determined that 11 articles are due for an overhaul but that 7 others should remain untouched. The legislature, not the people, deemed certain unspecified provisions of the constitution to be “antiquated” and “unnecessary.” The legislature, not the people, is now overseeing an extensive and unified program of constitutional revision. The Act thus represents a complete review and revision of the entire constitution. Even in the process of building a new house, “[s]ome of the material contained, in the old house may be used again, some of the rooms may by constructed the same, but this does not alter the fact that you have altogether another or a new house.” Manley, 441 So.2d at 874 (quoting Wheeler v. Board of Trustees, 200 Ga. 323, 330, 37 S.E.2d 322, 327 (1946) (emphasis added)).

The defendants argue that the Act merely authorizes recommendations for amendments (Strange’s brief, p. 5), and that the procedural requirements of § 284 will govern all proposed amendments generated by the commission. (Strange’s brief, p. 11.) In fact, however, the Act, like the act held unconstitutional in Manley, involves “numerous changes on a great many different subjects.” 441 So.2d at 873. Such a global plan of revision can be the fruit only of a § 286 convention, not of the legislative-amendment process under § 284. See id. at 868-69. By undertaking to massively revise the constitution, the legislature “circumvent[ed] the people’s right to vote initially on the question of whether to call a constitutional convention, prior to an election regarding the recommendations of such a convention.” Manley, 441 So.2d at 872 n. 8. Additionally, as Bell notes, the people lost their ability “to have input in selecting the drafters of the proposed new constitution.” (Bell’s brief, p. 18.)

Stretching out the revision process over a number of years by submitting to the people two or three revised articles per general election under the amendment procedures of § 284 does not change the reality that a near total revision of the constitution is occurring. The Act’s design to achieve large-scale revision by a carefully planned series of amendments is an artful evasion of the constitutional-convention process. The legislature’s assumed prerogative to initiate and control the process of constitutional revision is a notable and disturbing innovation. By wresting the convention process from the people, the legislature has made itself the paramount mechanism of constitutional revision. See Robert F. Williams, Are State Constitutional Conventions Things of the Past? The Increasing Role of the Constitutional Commission in State Constitutional Change, 1 Hofstra L. & Pol’y Symp. 1, 4 (1996) (noting that constitutional commissions have been used “as devices for assisting legislatures in avoiding conventions, and thus retaining control of constitutional change”); James A. Henretta, Foreword: Rethinking the State Constitutional Tradition, 22 Rutgers L.J. 819, 831 (1991) (noting that constitutional commissions “represented a diminution of activist popular sovereignty. In a carefully calculated fashion, these maneuvers removed power from the hands of the citizenry. The result was a constitution revised as much through administrative procedures as through constitutional debate and political compromise.”); Albert L. Sturm, The Development of American State Constitutions, 12 Publius: Journal of Federalism 57, 84 (1982) (“The mounting popularity of constitutional commissions is attributable mainly to them general acceptability to state legislators who prefer to rely on bodies over whose proposals they have control.”); W. Brooke Graves, State Constitutional Law: A Twenty-Five Year Summary, 8 Wm. & Mary L.Rev. 1, 10 (1966) (stating that constitutional commissions have “‘one inherent and fatal weakness in that their every act is measured in terms of what they believe the legislature will accept’ ” (quoting Bennett M. Rich, Convention or Commission?, Nat’l Mun. Rev. 133-39 (March 1948))). Almost 50 years ago two students of constitutional commissions observed:

“The crux of the matter is ultimate legislative control. Legislative bodies are jealous of their constitutional amendment and revision prerogative. When they are presented with an alternative that enables them to preserve this prerogative, in contrast with one, such as the constitutional convention, over which their powers are far more limited, the choice is obvious to most lawmakers.”

Albert L. Strum and James B. Craig, Jr., State Constitutional Commissions: Fifteen Years of Increasing Use, 39 State Gov’t 56, 63 (1966).

Sections 284 and 286 require that a program of total revision, such as the Act mandates, must arise from the citizens of Alabama in a constitutional convention, and not from a legislatively created advisory commission. “Revision by commission” is an unauthorized method to propose to the people of Alabama a comprehensive rewriting of the constitution. The legislature has only the power to amend the constitution, not to revise it. “In proposing amendment of the Constitution the legislature does not have the plenary powers it has in enacting laws but only the powers specifically delegated to it.” Manley, 441 So.2d at 878 (Torbert, C.J., concurring specially) (quoting Bourbon v. Governor of Maryland, 258 Md. 252, 257-58, 265 A.2d 477, 480 (1970)). The people delegated to the legislature only the power to propose “amendments which are few and simple and independent.” Manley, 441 So.2d at 869 (quoting Jameson, § 574c). “The people of this State ... have decreed that they reserve, in revising or replacing the Constitution, a role much more active than merely passing upon a proposal someone else has written.” Id. at 877 (Torbert, C.J., concurring specially). The effect of the Act is to achieve article by article what the constitution prohibits the legislature from doing all at once. If, instead of placing all the courses of a banquet on the table at the same time, they are served individually in sequence separated by intervals of time, the gastronomic result is still the same, even though the latter presentation may appear easier to digest.

If the legislature inherently possessed plenary power to propose a massive revision of the constitution, then § 284, the provision authorizing the legislature to propose discrete amendments, would be superfluous. The presence of § 284 in the Alabama Constitution, however,

“ ‘fights against the contention that the general grant of legislative authority bears in its broad arms, by implication, any power to formulate and submit proposed organic law, whether in the form of an entire and complete instrument of government to supersede the existing one, or a single amendment. For if the General Assembly has the greater power, unfettered power [of revision], under the general grant, what necessity could there have existed for giving the lesser, special power [of amendment], with the checks and limitations accompanying it?’ ”

Manley, 441 So.2d at 872 (quoting Ellingham v. Dye, 178 Ind. 336, 356, 99 N.E. 1, 8 (1912)). A construction of the constitution that renders one of its provisions superfluous conflicts with this Court’s acknowledgment that “[t]he Constitution contains no idle assertions, no meaningless language, no ephemeral purpose.” Johnson v. Craft, 205 Ala. at 399, 87 So. at 386.

V. Conclusion

“[T]he legislature’s power to initiate proceedings toward a new constitution is limited to the provisions of § 286.” Manley, 441 So.2d at 876 (emphasis added). A constitutional convention may convene only after the voters have approved a legislative act or resolution calling for the convention. Thus, a legislature desirous of revising the Alabama Constitution has one, and only one, option at its disposal: “pass[ ] an act or resolution calling a convention.” § 286, Ala. Const.1901. The treatise on constitutional conventions relied on in Manley states that “whenever a Constitution needs a general revision, a convention is indispensably necessary.” Jameson, § 219. As this Court has stated: “Section 286 of the Constitution of 1901 does not vest in the legislature the power to call a constitutional convention.” Opinion of the Justices No. HI, 263 Ala. 151, 81 So.2d 688, 689 (1955). The legislature may not evade this limitation on its power through the ingenious mechanism of an in-house constitutional convention dubbed a “Constitutional Revision Commission.”

Creating a Constitutional Revision Commission and granting it the responsibility to propose an article-by-article revision of the constitution exceeds the scope of the legislature’s authority under §§ 284 and 286 of the Alabama Constitution. Because the Act is likely unconstitutional as a legislative usurpation of the exclusive and sovereign right of the people to revise the constitution through a convention called for that purpose, I would reverse the order granting the motion to dismiss and remand the case for further proceedings. Bell has stated a cognizable theory of law and therefore may possibly prevail on her complaint. Nothing more is required at the pleading stage. Additionally, because legislative immunity does not shield the named legislators from being defendants in this matter, and because Bell’s challenge to Amendments 9 and 10 is not moot, questions of justiciability, in my view, do not defeat Bell’s complaint.

This Court has recognized “the settled principle that the people have forbidden the Legislature from conducting itself in a manner inconsistent with their constitution and when it does, it is incumbent upon the judiciary to nullify a legislative enactment contrary to the constitution.” Rice v. English, 835 So.2d 157, 162 (Ala.2002). That principle has full application to the prerogative of the people to call a constitutional convention, “the great agency through which democracy finds expression.” Henretta, Rethinking the State Constitutional Tradition, 22 Rutgers L.J. at 829 (quoting J. Dealey, Growth of American State Constitutions 258 (1915)).

      . As the defendants argued in the trial court, the acts in question did not propose an entirely new constitution. As discussed below, whether the acts submitted mere amendments, something more, or something impermissible, is not at issue in this appeal.

      . The Alabama Law Institute is "an official advisory law revision and law reform agency of the State of Alabama.” § 29-8-l(a), Ala. Code 1975.

      . To call a constitutional convention, Article XVIII, § 286, Ala. Const.1901, requires "a vote of a majority of all the members elected to each house” followed by a majority vote "of all the qualified electors of die state.”

      . Justice Shaw in his special concurrence implies that because the Act is a legislative resolution and not a law, it is not subject to a constitutional challenge. However, in Gunter v. Beasley, 414 So.2d 41 (1982), this Court considered at length a challenge to the constitutional and statutory validity of two resolutions passed during the 1971 Regular Session of the Alabama Legislature, holding ultimately that they "do not offend any of the constitutional and statutory provisions against which the State challenges their validity." 414 So.2d at 49.

      . Although the comprehensive revision of the judicial article in 1973 and the suffrage and elections article in 1996 may seem to establish a precedent for using § 284 in place of calling a § 286 constitutional convention, "a few sporadic offenses against an unambiguous constitutional mandate will not suffice to establish the basis for a subversion of its terms.” Craft, 205 Ala. at 402, 87 So. at 388-89.

      . We may search in vain for any meaningful term-limits provision in the legislature’s new proposed constitution. The commission apparently considered, but rejected, a term-limits provision. Article IV, § 46, Ala. Const. 1901, which defines the term of office for legislators, has no term limits. In its Tentative Final Revision of November 11, 2012, the commission lists as an "alternative” a term limit of "20 years of total service.” Subcommittee minutes indicate that this proposal was rejected. The. notes to the draft revision of § 46 state: “Commission members requested a term limit proposal be included but was rejected by the Subcommittee.” By contrast, a citizens commission not authorized by the legislature proposed to "[ljimit service of any legislator to three terms per chamber.” Jim Bennett & Sallie C. Creel, Final Report: Alabama Citizen's Commission for Constitutional Reform, 33 Cumb. L. Rev. 597, 609 (2003).


source: Caselaw Access Project

author: PER CURIAM. STUART, Justice BRYAN, Justice

license: Public Domain

text:
    Tammie L. BOYLES, as mother and next friend of Colton Elijah Powell BOYLES, a minor v. Denise DOUGHERTY, R.N.
    1120395.
    Supreme Court of Alabama.
    Sept. 27, 2013.
    Rehearing Denied Jan. 17, 2014.

      Stephen D. Heninger of Heninger Garrison & Davis, LLC, Birmingham, for appellant.
    Robert L. Williams of Hand Arendall, LLC, Birmingham, for appellee.
   PER CURIAM.

Tammie L. Boyles (“Boyles”), as mother and next friend of Colton Elijah Powell Boyles (“Eli”), a minor, filed a lawsuit on behalf of her son for injuries he allegedly sustained from an arterial stick while he was hospitalized at University of Alabama at Birmingham Hospital (“UAB Hospital”). Boyles appeals from a summary judgment in favor of Denise Dougherty, a registered nurse at UAB Hospital. We reverse and remand.

I. Facts and Procedural History

The evidence, viewed in the light most favorable to Boyles, shows the following: On September 24, 2009, Eli was born prematurely at UAB Hospital. On September 29, 2009, Eli’s treating physician ordered a blood culture, which was taken by Dougherty from Eli’s right arm. Later that day, Eli’s mother, who is also a nurse, noticed that Eli’s fingertips on his right hand were blue or “dusky.” Dougherty applied a warm compress to Eli’s right hand. The discoloration in Eli’s fingertips moved upward from his right hand toward his shoulder.

On October 1, 2009, Eli was transferred to Children’s Hospital of Alabama (“Gul-dren’s Hospital”) for treatment of a bowel perforation. While at Children’s Hospital, the fingertips of Eli’s right hand auto-amputated or fell off. Boyles claims her son’s injury occurred as a result of an improper arterial stick to his right arm by Dougherty.

On February 22, 2011, Boyles sued, alleging that Dougherty’s nursing negligence caused the auto-amputation of Eli’s fingertips. The complaint alleged that Dougherty performed an arterial stick on the right hand/arm of Boyles’s infant son, Eli, instead of an arterial stick to his heel, causing “poor perfusion to his hand with resulting thrombosis of the fingertips.” In the complaint, Boyles contended that “the recommended location for blood collection on a newborn baby is the heel and the prior sticks for [her] infant son had been to his heel until [Dougherty] negligently caused or negligently allowed the arterial stick to be done at his right hand/arm.”

Dougherty filed an answer denying that she was guilty of negligence and denying that there was a causal relationship between her actions and the injury alleged in the complaint. Boyles identified Lauren Cooper, R.N., as an expert witness in this case.

On October 17, 2012, Dougherty filed a motion for a summary judgment premised on Boyles’s failure to offer expert testimony as to causation in the case. Boyles filed a response to Dougherty’s summary-judgment motion arguing that Cooper was qualified to testify as an expert witness and that the Children’s Hospital records showed that the cause of the auto-amputation of Eli’s fingertips was “poor perfusion and thrombotic fingertips while at UAB [Hospital].” In opposing Dougherty’s summary-judgment motion, Boyles submitted: excerpts from her deposition; excerpts from Dougherty’s deposition; excerpts from Cooper’s deposition; UAB Hospital’s progress note dated September 30, 2009; certified copies of the medical records of Children’s Hospital; various photographs; and UAB Hospital’s Interdisciplinary Standard Regarding Arterial Punctures for Specimen Collection.

On November 21, 2012, the trial court entered a summary judgment in favor of Dougherty. The trial court concluded that a summary judgment in favor of Dougherty was proper because “[Boyles] lacks an expert capable of testifying as to causation [and] there has been no evidence presented to the [trial court] that [Eli]’s injuries were probably a result of a breach of the standard of care by Dougherty.” Boyles appealed.

II. Standard of Review

Boyles challenges the summary judgment in favor of Dougherty. In determining whether the trial court erred in entering the summary judgment, we consider the following:

“Under Rule 8, Ala. R. Civ. P., a complaint is sufficient if it puts the defendant on notice of the claims against him; however, the rule of generalized notice pleading may be qualified by rule or statute. Bethel v. Thom, 757 So.2d 1154, 1158 (Ala.1999). Section 6-5-551, Code of Ala.1975, provides that in any medical-malpractice action, ‘[t]he plaintiff shall include in the complaint filed in the action a detailed specification and factual description of each act and omission alleged by plaintiff to render the health care provider liable to plaintiff.’ The plaintiff is prohibited ‘from introducing at trial evidence of any other act or omission.’
“Substantial evidence is defined in the medical-malpractice context as ‘that character of admissible evidence which would convince an unprejudiced thinking mind of the truth of the fact to which the evidence is directed.’ § 6-5-542(5)[, Ala.Code 1975]. Rule 56, Ala. R. Civ. P., governing motions for summary judgment, must be read in conjunction with that definition of substantial evidence. Golden v. Stein, 670 So.2d 904, 907 (Ala.1995).
“This Court’s review of a summary judgment in a medical-malpractice case, as in other cases, is guided by the proposition that ‘this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant.’ Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997), quoted in Hauseman v. University of Alabama Health Servs. Found., 793 So.2d 730, 734 (Ala.2000).
“If the movant in a medical-malpractice case makes a prima facie showing that there is no genuine issue of material fact, then, as in other civil cases, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d 308, 311 (Ala.2001).
“ ‘To maintain a medical-malpractice action, the plaintiff ordinarily must present expert testimony from a “similarly situated health-care provider” as to (1) “the appropriate standard of care,” (2) a “deviation from that standard [of care],” and (3) “a proximate causal connection between the [defendant’s] act or omission constituting the breach and the injury sustained by the plaintiff.” ’
“Lyons v. Walker Reg’l Med. Ctr., 791 So.2d 937, 942 (Ala.2000) (bracketed language original).
“ ‘[A] medical malpractice plaintiff must produce substantial evidence that “the alleged negligence ‘probably caused the [complained of] injury,’ ” in order to survive a summary judgment motion, if the defendant has made a prima facie showing that no genuine issue of material fact exists as to the issue of causation.’
“Golden, 670 So.2d at 907.
“‘“To present a jury question, the plaintiff [in a medical-malpractice action] must adduce some evidence indicating that the alleged negligence (the breach of the appropriate standard of care) probably caused the injury. A mere possibility is insufficient. The evidence produced by the plaintiff must have ‘selective application’ to one theory of causation.” ’
“Rivard v. University of Alabama Health Servs. Found., P.C., 835 So.2d 987, 988 (Ala.2002).”

Cain v. Howorth, 877 So.2d 566, 575-76 (Ala.2003). See Breland v. Rich, 69 So.3d 803, 814-15 (Ala.2011). Additionally, regarding causation, this Court has stated:

“ ‘[A] theory of causation is not mere conjecture, when it is deducible as a reasonable inference from “known facts or conditions,” Alabama Power Co. v. Robinson, 447 So.2d 148,153-54 (Ala.1983). “ ‘[I]f there is evidence which points to any one theory of causation, indicating a logical sequence of cause and effect, then there is a judicial basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence.’ ” Griffin Lumber Co. v. Harper, 247 Ala. 616, 621, 25 So.2d 505, 509 (1946) (quoting Southern Ry. v. Dickson, 211 Ala. 481, 486, 100 So. 665, 669 (1924)).’
“Dixon v. Board of Water & Sewer Comm’rs of Mobile, 865 So.2d 1161, 1166 (Ala.2003).”

Miller v. Bailey, 60 So.3d 857, 867 (Ala.2010).

III. Analysis

On appeal, Boyles argues that the summary judgment was improper because, she says, she presented substantial evidence that Dougherty’s negligence probably caused Eli’s injury. Boyles contends that the record supports her contention that Dougherty breached the appropriate standard of care in her arterial stick to Eli’s arm, and, she says, the certified medical records from Children’s Hospital and the testimony by Cooper establish that the injury occurred as a result of the improper arterial stick by Dougherty.

Boyles alleged in her complaint that Eli sustained auto-amputation of his fingertips through negligence on the part of Dougherty. Dougherty filed a motion for a summary judgment, arguing that the only issue before the court was whether Boyles would be able to present testimony that any breach of the standard of care by Dougherty proximately caused Eli’s injury.

The record supports a “logical sequence of cause and effect” based on the time line and the absence of any other explanation in the record. See Miller v. Bailey, 60 So.3d at 867. Further, this logical sequence is corroborated under the facts of this case by certified medical records that were before the trial court and by the testimony of Boyles’s expert, Cooper. Boyles presented certified medical records and testimony that would support a reasonable inference that the negligent conduct of Dougherty probably caused the auto-amputation of Eli’s fingertips. See Miller. The evidence submitted by Boyles in opposition to Dougherty’s summary-judgment motion shows that Dougherty breached the appropriate standard of care in her arterial stick to Eli’s hand and in applying a warm compress to that hand, which worsened a problem with perfusion of blood circulation. The certified medical records establish that the injury occurred “following arterial stick.” The certified medical records from Children’s Hospital state that Eli had “poor perfusion of his right hand and thrombotic fingertips developed] while at UAB [Hospital].”

Boyles’s nurse expert, Cooper, testified that the arterial stick in this case was too high and that this could cause and did cause occluded blood flow to Eli’s right hand. Cooper testified:

“A. I believe that what caused the fingertips to turn black and ultimately be amputated was that when performing an ABG [arterial blood gas], you have to make sure that you have done the Allen’s test[] or you have used an illuminator—
“Q. Okay.
“A. —to make sure that when you are in one artery getting your blood that there is sufficient blood to the rest of the hand. If the blood is taken in the incorrect spot, then you have occluded the entire hand. You may be drawing the blood and at that moment you may not realize it, but that entire hand will not have perfusion. It has got to be performed in the correct spot or that will cause lack of perfusion and eventually sepsis and cell death.
“Q. Information that we were provided about what your opinions were said that you were of the opinion that the arterial stick was too high up.
“A. Yes, sir.
“Q. And that’s a paraphrase from me, that it should not be done above the wrist area.
“A. Uh-huh.
“Q. Is that correct?
“A. Yes, sir.
“Q. Is that one of your opinions?
“A. Yes, sir.
“Q. Is that what you were just talking about?
“A. Yes, sir.
“Q. What evidence did you find in the record that the arterial stick was above the wrist?
“A. Well, I believe because, like I said, what happens, it branches off at the wrist, and if it’s done in the correct spot, there would be no reason for sepsis and lack of perfusion.”

The certified medical records from Children’s Hospital provide that Eli developed poor perfusion of his right hand and thrombotic fingertips while he was at UAB Hospital. In addition, Dougherty acknowledged that an improperly performed stick can cause occlusion or blockage of blood flow to the hand. No contradictory evidence of any other plausible cause was presented by Dougherty.

We conclude that the certified medical records and the testimony sufficiently established causation for the purpose of rebutting Dougherty’s motion for a summary judgment. The medical records and the testimony are more than sufficient to create a question of fact as to whether the acts of Dougherty were the proximate cause of Eli’s injuries. The certified medical records, Cooper’s testimony, and Dougherty’s acknowledgment provides substantial evidence that the improperly performed arterial stick caused Eli’s injuries. Therefore, the summary judgment in favor of Dougherty was improper.

IV Conclusion

Based on the foregoing, we conclude that, under the facts of this case, the evidence is sufficient to “ ‘ “warrant the reasonable inference and conclusion that [Eli’s injuries] did so occur as alleged.” ’ ” Prowell v. Children’s Hosp. of Alabama, 949 So.2d 117, 130 (Ala.2006) (quoting McAfee v. Baptist Med. Ctr., 641 So.2d 265, 267 (Ala.1994), quoting in turn McKinnon v. Polk, 219 Ala. 167, 168, 121 So. 539, 540 (1929)). Boyles’s evidence sufficiently overcame Dougherty’s showing in support of her motion for a summary judgment. Therefore, we reverse the summary judgment entered in favor of Dougherty, and we remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and PARKER, MAIN, and WISE, JJ., concur.

MURDOCK, J., concurs in the result.

STUART, BOLIN, SHAW, and BRYAN, JJ., dissent.

STUART, Justice

(dissenting).

The main opinion reverses the summary judgment entered by the trial court in favor of Denise Dougherty, a registered nurse employed by University of Alabama at Birmingham Hospital, on the medical-malpractice claim asserted against her by Tammie L. Boyles (“Boyles”) on behalf of her minor son Colton Elijah Powell Boyles (“Eli”). I agree with the trial court that Boyles failed to identify an expert capable of testifying that Dougherty’s alleged breach of the standard of care probably caused the identified injury to Eli and that summary judgment was accordingly proper on that basis. I therefore dissent.

To prevail in a medical-malpractice case subject to the Alabama Medical Liability Act (“AMLA”), § 6-5-480 et seq. and § 6-5-541 et seq., Ala.Code 1975, a plaintiff must establish 1) the appropriate standard of care, 2) that the defendant health-care provider breached that standard of care, and 3) a proximate causal connection between the health-care provider’s breach and the identified injury. Bradford v. McGee, 534 So.2d 1076, 1079 (Ala.1988), and § 6-5-548, Ala.Code 1975. In the instant case, Boyles identified Lauren Cooper, a registered nurse with experience working in a neonatal intensive-care unit, as her sole expert witness. Cooper accordingly may have been a similarly situated health-care provider qualified to give testimony regarding the applicable standard of care and whether Dougherty breached that standard. See generally Springhill Hosps., Inc. v. Critopoulos, 87 So.3d 1178, 1187-89 (Ala.2011), and § 6-5-548. However, I do not believe that Cooper’s status as a registered nurse and a similarly situated health-care provider automatically qualifies her to testify regarding causation.

In Phillips v. Alamed Co., 588 So.2d 463, 465 (Ala.1991), this Court considered a challenge to a trial court’s ruling barring a registered nurse from testifying on the issue of proximate cause because, the trial court held, testimony from a physician was necessary to establish causation due to the “complex medical issues” in that case. We stated:

“Phillips ... argues that the court erred by sustaining Alamed’s objection to testimony by Anne Bailey-Alien, a registered nurse, on the issue of proximate cause. The trial court held that testimony on the issue of proximate cause could be provided only by a physician. As a general rule, decisions as to a witness’s competency to testify as an expert on a particular subject are within the discretion of the trial court. Ward v. Dale County Farmers Co-op., 472 So.2d 978 (Ala.1985). Those decisions will not be reversed by this Court absent an abuse of discretion. Bell v. Hart, 516 So.2d 562 (Ala.1987); Byars v. Mixon, 292 Ala. 661, 299 So.2d 262 (1974).
“The question of whether Alamed’s failure to report Ms. Phillips’s complaint of shortness of breath to her physician proximately caused her death is clearly a question involving complex medical issues. Therefore, we cannot say that the trial judge abused his discretion by requiring the testimony of a physician and, implicitly, holding that a registered nurse was not competent to testify as an expert on the issue of proximate cause. Bell, supra; Byars, supra.”

Although in Phillips this Court did not expressly state the rationale for not allowing a nurse to testify regarding causation, the Court of Civil Appeals subsequently addressed that issue in Nelson v. Elba General Hospital & Nursing Home, Inc., 828 So.2d 301, 304-05 (Ala.Civ.App.2000), reversed on other grounds, 828 So.2d 308 (Ala.2001), stating:

“Although a registered nurse may be qualified to testify as to the standard of care that exists in the field of medicine applicable to registered nurses and as to whether that standard of care was breached, a registered nurse is not qualified to testify as an expert with regard to medical causation....
“There is a vast difference in the education and training of a physician and the education and training of a nurse and a vast difference in the activities they can perform. A licensed physician in the practice of medicine can
“ ‘diagnose, treat, correct, advise or prescribe for any human disease, ailment, injury, infirmity, deformity, pain or other condition, physical or mental, real or imaginary, by any means or instrumentality.’ “ § 34-24-50(1), Ala.Code 1975. A registered nurse in the practice of professional nursing can perform
“ ‘any act in the care and counselling of persons or in the promotion and maintenance of health and prevention of illness and injury based upon the nursing process which includes systematic data gathering, assessment, appropriate nursing judgment and evaluation of human responses to actual or potential health problems through such services as case finding, health teaching, health counselling; and provision of care supportive to or restorative of life and well-being, and executing medical regimens including administering medications and treatments prescribed by a licensed or otherwise legally authorized physician or dentist.’
“ § 34-21-1 (3)a[, Ala.Code 1975].
“The legislature has not authorized a registered nurse to make a medical diagnosis. Rather, a registered nurse is limited to providing ‘care and counselling’ for a patient and works at the direction of a physician. For this reason, it would be a gross miscarriage of justice to enter a summary judgment in favor of Elba General when the testimony supporting its summary-judgment motion, as to the question of medical causation, has been provided by a person who is not authorized to formulate medical diagnoses.
“We find helpful several cases from other jurisdictions addressing the issue of a nurse’s testimony as to medical causation. In Flanagan v. Labe, 446 Pa.Super. 107, 666 A.2d 333 (1995), affd, 547 Pa. 254, 690 A.2d 183 (1997), the Pennsylvania Superior Court held that a registered nurse is not competent to testify as to medical causation in a malpractice case. In Short v. Appalachian OH-9, Inc., 203 W.Va. 246, 507 S.E.2d 124 (1998), the West Virginia court held that a nurse was not qualified to testify as to cause of death, time of death, or whether resuscitation was possible. Long v. Methodist Hospital of Indiana, Inc., 699 N.E.2d 1164 (Ind.App.Ct.1998), involved a claim by a heart-surgery patient who claimed to have developed a serious staph infection following the surgery. The Indiana court held that a nurse was not qualified to offer expert testimony on the question whether the hospital’s conduct caused, or increased the risk of, infection. In Kent v. Pioneer Valley Hospital, 930 P.2d 904 (Utah Ct.App.1997), an action against a health-services provider, a registered nurse was held not qualified to give an opinion as to proximate cause of nerve damage.
“Three courts in Texas have addressed the issue. In Arlington Memorial Hospital Foundation, Inc. v. Baird, 991 S.W.2d 918 (Tex.App.-Fort Worth 1999), the court held that a nursing expert who was not shown to be qualified to medically diagnose thermal burns or to be an expert on the equipment used, was precluded from testifying as to medical causation. In Pace v. Sadler, 966 S.W.2d 685 (Tex.App.-San Antonio 1998), a nurse was not qualified to medically diagnose causation of a heart condition. In Lesser v. St. Elizabeth Hospital, 807 S.W.2d 657 (Tex.App.-Beaumont 1991), the court held that a nurse might be permitted to testify about proximate causation if she is shown to have specialized experience or training that qualifies her to testify as to medical causation.”

(Footnote omitted.) See also Robinson v. Baptist Health Sys., Inc., 24 So.3d 1119, 1125 (Ala.Civ.App.2009) (affirming trial court’s ruling that nursing expert was not qualified to express an opinion regarding causation).

In the instant case, the trial court considered the evidence in the record and, noting that Eli had been born prematurely and suffered from “many serious conditions,” concluded that a summary judgment was appropriate because there was “no qualified expert opinion as to causation.” The trial court had already recognized that Cooper had been identified to testify as to Dougherty’s alleged breach of the standard of care; thus, it is evident that the trial court did not consider Cooper qualified to give expert testimony regarding the cause of Eli’s injury based on the complex nature of the case. We have previously stated that it is within a trial court’s discretion to determine whether a witness is qualified to give expert testimony on a subject, see, e.g., Critopoulos, 87 So.3d at 1180, and Phillips, 588 So.2d at 465, and I do not believe the trial court exceeded its discretion in concluding that Cooper was not qualified to provide an expert opinion as to the cause of Eli’s injury. In the absence of any other expert witness to testify regarding causation, summary judgment was appropriate. See University of Alabama Health Servs. Found., P.C. v. Bush, 638 So.2d 794, 802 (Ala.1994) (“To prove causation in a medical malpractice case, the plaintiff must prove, through expert medical testimony, that the alleged negligence probably caused, rather than only possibly caused, the plaintiffs injury.” (emphasis added)).

I write further to emphasize the importance of expert testimony in AMLA cases. The legislature, in enacting the AMLA, evinced its intent that expert testimony be required in AMLA cases, see, e.g., § 6-5-548, and this Court has recognized that “[u]nless ‘the cause and effect relationship between the breach of the standard of care and the subsequent complication or injury is so readily understood that a layperson can reliably determine the issue of causation,’ causation in a medical-malpractice case must be established through expert testimony.” DCH Healthcare Auth. v. Duckworth, 883 So.2d 1214, 1217-18 (Ala.2003) (citing Cain v. Howorth, 877 So.2d 566, 576 (Ala.2003)). The Supreme Court of Minnesota has explained the purpose for requiring expert testimony in medical-malpractice cases as follows:

“ ‘The purpose of expert testimony is to interpret the facts and connect the facts to conduct which constitutes [medical] malpractice and causation.’ [Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 192 (Minn.1990) ]. This is based on the assumption that most medical malpractice cases involve complex issues of science or technology, requiring expert testimony to assist the jury in determining liability.”

Tousignant v. St. Louis County, 615 N.W.2d 53, 58 (Minn.2000). In the instant case, Boyles states in her complaint that this case involves an “arterial stick to [Eli’s] right hand/arm [that] caused poor perfusion to his hand with resulting thrombosis of the fingertips,” which allegedly resulted in auto-amputation of the same. This clearly involves matters outside the purview of a layperson, and expert testimony establishing causation is accordingly vital. Indeed, the trial court apparently determined that expert testimony from a physician was necessary under the facts of the case, and I fear that in reversing the trial court’s judgment in the absence of such testimony we are acting contrary to the will of the legislature, as expressed in the AMLA, that expert testimony be required in these cases. For these reasons, I respectfully dissent.

BOLIN and SHAW, JJ., concur.

BRYAN, Justice

(dissenting).

I respectfully dissent from the main opinion’s reversal of the trial court’s summary judgment in favor of Denise Dough-erty, R.N., and its remand of the cause for further proceedings. In its order, the trial court found that “[Tammie L. Boyles] had retained an expert to testify on Dougherty’s breach of the standard of care” but that, “[i]n the instant case, there is no qualified expert opinion as to causation.” The trial court went on to conclude: “Because [Boyles] lacks an expert capable of testifying as to causation, there has been no evidence presented to the Court that [Boyles’s] child’s injuries were probably the result of a breach of the standard of care by Dougherty.” I agree with Justice Stuart that these statements indicate that the trial court did not consider Boyles’s expert, Registered Nurse Lauren Cooper, qualified to give expert testimony regarding the cause of the child’s injury.

It is well established that, “[i]n a medical malpractice case, the plaintiff must prove by expert testimony that the [health-care provider] breached the standard of care and by the breach proximately caused the plaintiffs injury.” See University of Alabama Health Servs. Found., P.C. v. Bush, 688 So.2d 794, 798 (Ala.1994). Boyles has not argued on appeal that the trial court erred in finding that Cooper was not qualified to testify as an expert on the issue of causation, and Boyles did not present any other expert testimony as to that issue. Thus, she has not demonstrated that the trial court erred in finding either that “there [was] no qualified expert opinion as to causation” presented in this case or that Dougherty was entitled to a summary judgment on that basis. Therefore, I would affirm the trial court’s judgment.

      . Boyles originally named as defendants UAB Hospital, UAB Health System, and Denise Dougherty, R.N. UAB Hospital does not exist as a separate entity. UAB Health System was dismissed on joint motion.

      . Dougherty attached to her summary-judgment motion Boyles’s designation of Lauren Cooper, R.N., as her expert witness.

      . According to the record, an Allen’s test is "a method of confirming radial artery occlusion.”

      . The main opinion concludes that "the certified medical records and [Cooper’s] testimony sufficiently established causation for the purpose of rebutting Dougherty’s motion for a summary judgment.” 143 So.3d at 687 (emphasis added). Beyond the insufficiency of Cooper's testimony to establish causation, explained supra, I would also note that there is nothing in the medical records before us that indicates that Eli’s injury was caused by a breach of the standard of care committed by Dougherty. There are some general chart notes referring to poor perfusion and thrombotic fingertips; however, there is nothing in those medical records stating what caused that condition.

      . A similar requirement for expert testimony exists with regard to establishing the applicable standard of care and any breach thereof. See Anderson v. Alabama Reference Labs., 778 So.2d 806, 811 (Ala.2000) (reciting the general rule that a "plaintiff is required to produce expert medical testimony to establish the applicable standard of care and a breach of that standard of care” but noting an exception if the case involves a "want of skill or lack of care” that is readily comprehensible by a layperson).


author: MOORE, Chief Justice.

text:
    Luke EDWARDS et al. v. Bruce L. JOHNSON et al.
    1120569.
    Supreme Court of Alabama.
    Oct. 18, 2013.
    Rehearing Denied Jan. 10, 2014.

      William C. Brewer III, Livingston, for appellants.
    Ira Drayton Pruitt, Jr., of Pruitt & Pruitt, PA, Livingston; and Thomas T.
    Gallion III and Constance C. Walker of Haskell Slaughter Young & Gallion, LLC, Montgomery, for appellees.
   MOORE, Chief Justice.

This appeal is from a default judgment entered in the Greene Circuit Court. For the reasons discussed below, we dismiss the appeal as untimely.

I. Facts and Procedural History

On October 4, 2010, Bruce L. Johnson, Michael L. King, and William Harrison sued Luke Edwards, the Apostolic Advancement Association, Heritage Real Investment, Inc., Alabama-Mississippi Farm, Inc., and certain officers and board members of those corporations and that association in the Greene Circuit Court (the corporations, the association, the officers, and the board members are hereinafter referred to collectively as the “corporate defendants”). Given the disposition of this appeal, a recitation of the plaintiffs’ factual allegations is unnecessary.

On November 22, 2010, the plaintiffs filed an application for the entry of a default judgment against Edwards pursuant to Rule 55, Ala. R. Civ. P., for his failure to plead or otherwise to defend the allegations in the complaint. See Rule 55(a), Ala. R. Civ. P. On July 11, 2011, the plaintiffs filed another application for the entry of a default judgment along with supporting affidavits, requesting the trial court to enter default judgments against both Edwards and the corporate defendants (hereinafter referred to collectively as “the defendants”) for their failure to plead or defend.

On August 25, 2011, the trial court held a hearing on plaintiffs’ second application for a default judgment. The trial court thereafter entered a default judgment against the defendants and awarded damages in the amount of $6,599,648 and court costs. The same day, Edwards filed a motion styled “Deny Application for Entry of Default and Motion to Dismiss,” maintaining that he had not been personally served with the summons and complaint. Edwards also asserted that the plaintiffs’ action failed to state a claim, that it was barred by the doctrine of res judicata, and that the trial court lacked subject-matter jurisdiction over the action. The trial court never ruled on Edwards’s August 25, 2011, motion.

On September 20, 2011, Edwards and the corporate defendants jointly moved to set aside the default judgment. See Rule 55(c), Ala. R. Civ. P. On December 19, 2011, 90 days after the motion was filed, the defendants’ Rule 55(c) motion was deemed denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P.

Subsequently, the plaintiffs attempted to execute on the default judgment. On May 4, 2012, the defendants filed a motion to quash the writ of execution, stating that their September 20, 2011, motion to set aside the default judgment was still pending and was due to be set for a hearing. On that basis, they argued, the default judgment was not a final judgment that could be enforced by a writ of execution.

On May 7, 2012, the plaintiffs filed a motion to strike or to deny the defendants’ motion to quash the writ of execution, arguing that the defendants’ Rule 55(c) motion to set aside the default judgment had been denied by operation of law 90 days after its filing. The plaintiffs also noted that the 42-day period in which to appeal the denial of defendants’ Rule 55(c) motion had expired on January 30, 2012. See Rule 4(a)(1), Ala. R.App. P. The plaintiffs argued that, because the time for appeal had expired, the defendants’ motion to quash the writ of execution should be stricken or denied.

On July 2, 2012, the defendants filed a motion to vacate the trial court’s default judgment pursuant to Rule 60(b), Ala. R. Civ. P. In their motion, the defendants acknowledged that their September 20, 2011, Rule 55(c) motion to set aside the default judgment “was deemed denied 90 days after its filing.”

On January 5, 2013, the trial court denied defendants’ Rule 60(b) motion to vacate the judgment and concluded that “defendants’ contention that the default judgment is void is without merit.” On February 15, 2013, the defendants filed a notice of appeal of the order denying their Rule 60(b) motion to vacate and of the denial by operation of law of their Rule 55(c) motion to set aside the default judgment.

II. Analysis

The defendants concede they did not file a timely appeal from the Rule 59.1 denial by operation of law of their Rule 55(c) motion. In an effort to circumvent the requirement of Rule 4, Ala. R.App. P., that a notice of appeal be filed within 42 days of the judgment or order being appealed, the defendants argue that only a portion of their Rule 55(c) motion to set aside the default judgment was deemed denied by operation of law pursuant to Rule 59.1 and that this Court should construe the portion that was not denied after the passage of 90 days as a Rule 60(b) motion. They also argue that their July 2, 2012, Rule 60(b) motion was merely a resubmission that should relate back to the filing of their September 20, 2011, motion to set aside the default judgment.

The defendants cite no authority for the proposition that a Rule 59.1 denial by operation of law could operate on only a portion of their Rule 55(c) motion. The Court of Civil Appeals has rejected such piecemeal application of Rule 59.1. See Carnes v. Carnes, 365 So.2d 981, 983 (Ala.Civ.App.1978):

“Defendant now attempts to escape the consequences of Rule 59.1 by asking this court to treat portions of his motion for new trial as a motion for relief from judgment under [Ala. R. Civ. P.] 60(b)(6) which provides:
“‘On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (6) any other reason justifying relief from the operation of the judgment.’
“Our cases hold that a Rule 60(b) motion cannot be used to extend the time for appeal. Personnel Board for Mobile County v. Bronstein, 354 So.2d 8 (Ala.Civ.App.1977), cert, denied, 354 So.2d 12 (Ala.1978); State v. Wall, 348 So.2d 482 (Ala.1977). Similarly, we do not believe that defendant should be allowed to argue now for the first time that his motion for new trial was in reality a Rule 60(b) motion simply to avoid the applicability of Rule 59.1. While our Rules of Civil Procedure contemplate a liberal construction of pleadings and motions, we do not think they envision the kind of construction defendant now urges.”

In order to evade the effects of the 90-day denial by operation of law under Rule 59.1 and the 42-day filing requirement for a notice of appeal under Rule 4, the defendants advance a very liberal construction of their own motions. As did the defendant in Carnes, the defendants argue that a part of their Rule 55(c) motion “could and should be deemed a motion filed pursuant to Rule 60(b) since it clearly raised the issue of service of process on all of the [defendants].” We agree with the analysis in Carnes, and we do not believe that the defendants should be allowed to argue for the first time on appeal that a portion of their Rule 55(c) motion was in reality a Rule 60(b) motion simply to avoid the applicability of Rule 59.1.

We note that the Alabama Rules of Civil Procedure do not necessarily preclude a defendant from filing alternative Rule 55(c) and Rule 60(b) motions with the trial court. “[T]he Rules do not, at the present time, preclude the filing of alternative Rule 55(c) and 60(b) motions; however, the better practice is to file a Rule 60(b) motion only when there is a final judgment in the case.” Ex parte Vaughan, 539 So.2d 1060, 1061 (Ala.1989). See Ex parte Lang, 500 So.2d 3, 4 (Ala.1986) (“Notwithstanding the designation in its title, the document ... was clearly a Rule 60(b) motion (albeit, prematurely filed) seeking relief under grounds (1) and (6); the trial court properly treated it as such.”). However, the defendants’ Rule 55(c) motion does not clearly seek alternative relief under Rule 60(b) that might warrant treating the defendants’ Rule 55(c) motion as an alternative or bifurcated Rule 55(c) motion and Rule 60(b) motion. On July 2, 2012, the defendants admitted that their Rule 55(c) motion to set aside the default judgment was deemed denied 90 days after its filing. The defendants cannot avoid the operation of Rule 59.1 where their Rule 55(c) motion does not clearly seek Rule 60(b) relief in the alternative.

A denial of a postjudgment motion by operation of law pursuant to Rule 59.1 triggers the 42-day period in which to file a notice of appeal pursuant to Rule 4, Ala. R.App. P. The defendants admit they did not file a timely notice of appeal from the Rule 59.1 denial of their Rule 55(c) motion. Accordingly, this Court has no jurisdiction to consider the defendants’ appeal. “The appeal, taken after the time prescribed by statute, will be dismissed ex mero motu, because this court is without jurisdiction to consider same.” Irwin v. Weil, 228 Ala. 489, 490, 153 So. 746, 746 (1934). See Meeks v. State Farm Mut. Auto. Ins. Co., 286 Ala. 513, 514, 243 So.2d 27, 28 (1970).

The defendants ask this Court to construe their Rule 60(b) motion as a request to reconsider or as a supplement to a portion of their Rule 55(c) motion. Rule 60(b), however, is not a substitute for a timely filed notice of appeal. “[A] Rule 60(b) motion may not be used to seek reconsideration of a trial court’s denial of a postjudgment motion, nor are Rule 60 motions substitutes for appeal.” Landers v. Landers, 812 So.2d 1212, 1216 (Ala.Civ.App.2001). We have stated that a Rule 60(b) motion

“ ‘cannot serve as a basis for a motion that, in effect, seeks a reconsideration of matters already considered by the trial court in a previous post-judgment motion when the facts alleged in the Rule 60(b) motion “were known by the moving party at the time of his original [post-judgment] motion.” Ex parte Dowling, 477 So.2d 400, 403 (Ala.1985). Such a Rule 60(b) motion, and a subsequent appeal of the denial of such a motion, cannot be used as a substitute for an appeal of the trial court’s original judgment.’ ”

Ex parte Haynes, 58 So.3d 761, 765 (Ala.2010) (some emphasis omitted). Because the defendants’ Rule 60(b) motion is a nullity, the only order the defendants could appeal from was the Rule 59.1 denial of their Rule 55(c) motion by operation of law. The time to appeal that Rule 59.1 denial expired on January 29, 2012.

III. Conclusion

We conclude that the defendants’ notice of appeal was untimely. We are without jurisdiction to hear the appeal, and we therefore dismiss it.

APPEAL DISMISSED.

BOLIN, MURDOCK, MAIN, and BRYAN, JJ., concur.

      . "No postjudgment motion filed pursuant to Rule[ ] ... 55 ... shall remain pending in the trial court for more than ninety (90) days.... A failure by the trial court to render an order disposing of any postjudgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.”