text:
    FAMILY SECURITY CREDIT UNION v. Richard W. ETHEREDGE
    Family Security Credit Union v. Kendrick M. Nettles
    Family Security Credit Union v. Wanda J. Pezent
    Family Security Credit Union v. David Moore
    Family Security Credit Union v. Martha H. Dunagan
    Family Security Credit Union v. Gene McClure
    Family Security Credit Union v. Kayla N. Williams
    Family Security Credit Union v. Dana Dunn and Timothy Dunn
    1151000 1151001 1151002 1151003 1151004 1151005 1151006 1151007
    Supreme Court of Alabama.
    May 19, 2017
    Gerald P. Gillespy of Burr & Forman LLP, Birmingham; and Michael D. Strasavich of Burr & Forman LLP, Mobile, for appellant.
    Joseph C. McCorquodale III of McCorquodale Law Firm, Jackson, for appellees.
   MAIN, Justice.

Family Security Credit Union ("FSCU") appeals the trial court's denial of its motions to compel arbitration in eight separate but closely related cases. We reverse and remand.

I. Facts and Procedural History

Action Auto Sales ("Action Auto") is a car-financing group that financed the vehicle inventory of Pine City Auto ("Pine City"), a used-car dealership. Action Auto held the titles to the vehicles in the inventory it financed and released a title only when a vehicle was sold and Pine City paid off a proportional amount of the inventory financing. Pine City eventually went out of business without paying off the inventory financing on some of the vehicles it had sold. Action Auto sued Pine City and the purchasers of eight vehicles who had purchased vehicles from Pine City and financed those purchases through FSCU. Action Auto sought possession of the vehicles and money damages. The purchasers each filed counterclaims and cross-claims against Action Auto and Pine City and third-party claims against FSCU, alleging negligence, wantonness, and conspiracy. The purchasers' third-party claims against FSCU are based on FSCU's alleged failure to perfect its security interest in the vehicles before financing the purchasers of the vehicles. FSCU moved for each of those third-party claims to be submitted to arbitration, and, to support its motions, FSCU attached a copy of a "Retail Installment Sale Contract" and a "Dealer's Assignment and Buyer's Consent to Assignment" that each purchaser had executed when he or she purchased the vehicle. The purchasers opposed the motions to compel arbitration, but they did not submit any evidence. After hearing oral arguments, the trial court denied all eight motions to compel arbitration. FSCU filed these eight appeals, which this Court consolidated for the purpose of issuing one opinion.

As part of the purchase of the vehicle, each purchaser executed a "Retail Installment Sale Contract" with Pine City and a "Dealer's Assignment and Buyer's Consent to Assignment," which assigned the sale contract to FSCU. The "Dealer's Assignment and Buyer's Consent to Assignment" contained the following arbitration provision immediately above the signature lines:

"Any controversy or claim arising out of or relating to this Agreement shall be settled by binding arbitration. Dealer and Buyer further agree that any such arbitration shall take place in Morgan County, Alabama. Judgment upon any award rendered by the arbitrator may be entered by any court having jurisdiction thereof. The arbitrator shall determine the prevailing party, and the costs and expenses of the arbitration proceeding, including the arbitrator's fees, shall be borne by the non-prevailing party, unless otherwise required by law. No provision of this Agreement, nor the exercise of any right under this Agreement, shall limit the right of the Credit Union to (1) obtain provisional or ancillary remedies, such as injunctive relief, writ of attachment, or protective order from a court having jurisdiction before, during, or after the pendency of any arbitration; (2) exercise self-help remedies, such as set-off; (3) foreclose against or sell any real or personal property collateral by the exercise of a power of sale under a mortgage or other security agreement or instrument, a deed of trust, or applicable law; (4) exercise any other rights under this Agreement upon the breach of any term or condition herein; or, (5) ... proceed with collection of the account through all other legal methods, including, but not limited to, proceeding in court to obtain judgment. Any and all arbitration under this contract will take place on an individual basis; class arbitrations and class actions are not permitted. DEALER AND BUYER FURTHER AGREE THAT YOU ARE WAIVING THE RIGHT TO TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION."

(Capitalization in original.)

In denying FSCU's motions to compel arbitration, the trial court held that "FSCU's promise to arbitrate is merely illusory and does not serve as valid consideration to support the arbitration agreement" because "the arbitration clause does not preclude FSCU from pursuing several alternative avenues of relief against the borrower, including the filing of a judicial lawsuit," but "requires that borrowers ... settle '[a]ny controversy or claim arising out of or relating to this Agreement' through binding arbitration."

Further, the trial court held that the arbitration provision was unconscionable. Specifically, the court stated:

"In the present case, the terms of the arbitration clause contained in the Assignment are grossly favorable to FSCU. Although consumer debtors such as [the purchasers] are required to arbitrate all disputes they may have against FSCU, FSCU has the option of pursuing several alternative remedies to arbitration, including the filing of a judicial lawsuit. The huge disparity in the rights of the contracting parties is one-sided and unreasonably favors FSCU.
"In addition, FSCU, a large and sophisticated business entity, has overwhelming bargaining power. To obtain the financing needed to purchase a used car from Pine City, [the purchaser] had no choice but to execute FSCU's boilerplate Assignment containing the arbitration clause, along with FSCU's form applications for membership to the credit union and for credit financing.
"Under the circumstances, the used car sales transaction evinces the necessary elements to support a finding of unconscionability. Hence, the arbitration requirement contained in the Assignment should be declared invalid and unenforceable, and FSCU's motion to compel arbitration should be denied."

(Citations omitted.)

II. Standard of Review

" 'This Court reviews de novo the denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala. 2000). A motion to compel arbitration is analogous to a motion for a summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala. 1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction affecting interstate commerce. Id."[A]fter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question." Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n.1 (Ala. 1995) (opinion on application for rehearing).' "

Elizabeth Homes, L.L.C. v. Gantt, 882 So.2d 313, 315 (Ala. 2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala. 2000) ).

III. Discussion

It is undisputed that FSCU moved to compel arbitration and supported its motions with contracts that were executed by the purchasers and that each contract contained the above-quoted arbitration provision. It was also undisputed that the contracts evidenced a transaction affecting interstate commerce. Thus, the burden shifted to the purchasers to present evidence that the arbitration agreements were not valid or that they did not apply to the disputes in question. The purchasers did not present any additional evidence. They presented only argument. Therefore, unless on its face the arbitration provision is not valid or does not apply to the dispute in question, the trial court's decision to deny the motions to compel arbitration was erroneous.

A. Unconscionability

The trial court held that the arbitration provision in each contract is unconscionable on its face. Concerning unconscionability, this Court has stated:

" 'Unconscionability is an affirmative defense, Green Tree Fin. Corp. v. Wampler, 749 So.2d 409, 415 (Ala. 1999), and the party asserting the defense bears the burden of proof. Ex parte Napier, 723 So.2d 49, 52-53 (Ala. 1998).' Fleetwood Enters., [Inc. v. Bruno,] 784 So.2d [277] at 281 [ (Ala. 2000) ]. In order to meet that burden, the party seeking to invalidate an arbitration provision on the basis of unconscionability must establish both procedural and substantive unconscionability. Blue Cross Blue Shield of Alabama v. Rigas, 923 So.2d 1077, 1087 (Ala. 2005). As this Court explained in Rigas:
" 'Substantive unconscionability
" ' " 'relates to the substantive contract terms themselves and whether those terms are unreasonably favorable to the more powerful party, such as terms that impair the integrity of the bargaining process or otherwise contravene the public interest or public policy; terms (usually of an adhesion or boilerplate nature) that attempt to alter in an impermissible manner fundamental duties otherwise imposed by the law, fine-print terms or provisions that seek to negate the reasonable expectations of the nondrafting party, or unreasonably and unexpectedly harsh terms having to do with price or other central aspects of the transaction.' "
" ' Ex parte Thicklin, 824 So.2d 723, 731 (Ala. 2002) (emphasis omitted) (quoting Ex parte Foster, 758 So.2d 516, 520 n.4 (Ala. 1999), quoting in turn 8 Richard A. Lord, Williston on Contracts § 18:10 (4th ed. 1998) ). See also Leeman v. Cook's Pest Control, Inc., 902 So.2d 641 (Ala. 2004).
" 'Procedural unconscionability, on the other hand, "deals with 'procedural deficiencies in the contract formation process, such as deception or a refusal to bargain over contract terms, today often analyzed in terms of whether the imposed-upon party had meaningful choice about whether and how to enter into the transaction.' " Thicklin, 824 So.2d at 731 (quoting Foster, 758 So.2d at 520 n.4, quoting in turn 8 Williston on Contracts § 18:10 ).'
" 923 So.2d at 1086-87."

Newell v. SCI Alabama Funeral Servs., LLC, 233 So.3d 326, 330 (Ala. 2017) (emphasis added).

In the present case, to invalidate the arbitration provision on the basis of unconscionability, the purchasers were required to establish both procedural and substantive unconscionability. The purchasers presented no evidence of procedural unconscionability, i.e., they did not present any evidence concerning the contract-formation process. The argument the trial court found persuasive-that on its face the arbitration provision is grossly favorable to FSCU because FSCU reserved the right to avail itself of the courts while forcing the purchasers to arbitrate every conceivable claim-concerns only substantive unconscionability. Having no evidence of procedural unconscionability before it, the trial court erred in holding that the arbitration provision in each contract is unconscionable.

B. Consideration

Like its holding concerning unconscionability, the trial court held that the arbitration provision in each contract failed for lack of consideration because, allegedly, "the arbitration clause does not preclude FSCU from pursuing several alternative avenues of relief against the borrower, including the filing of a judicial lawsuit," but "requires that borrowers ... settle '[a]ny controversy or claim arising out of or relating to this Agreement' through binding arbitration." This holding was based on the allegation that the arbitration provision lacked mutuality of remedy. However, this Court has stated that, "properly understood, the concept of mutuality of remedy has no application to arbitration agreements." Ex parte McNaughton, 728 So.2d 592, 598 (Ala. 1998). Further,

" '[t]he doctrine of mutuality of remedy is limited to the availability of the ultimate redress for a wrong suffered by a plaintiff, not the means by which that ultimate redress is sought. A plaintiff does not seek as his ultimate redress an arbitration proceeding or a court proceeding. Instead, he seeks legal relief (e.g., damages) or equitable relief (e.g., specific performance) for his injury, and he uses the proceeding as a means to obtain that result.' "

Green Tree Fin. Corp. of Alabama v. Vintson, 753 So.2d 497, 504 (Ala. 1999) (quoting Ex parte McNaughton, 728 So.2d 592, 598 (Ala. 1998) ). Therefore, the trial court's holding was erroneous.

Also, to the extent that the trial court's holding might have been based on the argument that consideration separate and distinct from that which supports the contract as a whole is required to enforce an arbitration provision, this Court has repeatedly rejected that argument. See Vintson, 753 So.2d at 502 n.3.

Although not addressed in the trial court's order, on appeal the purchasers allege that the contract as a whole lacked consideration. This Court has stated:

" ' "A test of good consideration for a contract is whether the promisee at the instance of the promisor has done, forborne or undertaken to do anything real, or whether he has suffered any detriment, or whether in return for the promise he has done something he was not bound to do, or has promised to do some act or to abstain from doing something."
" ' Roberts v. Lindsey, 242 Ala. 522, 525, 7 So.2d 82, 84 (1942) ; Russell v. Russell, 270 Ala. 662, 668, 120 So.2d 733, 738 (1960). "[T]o constitute consideration for a promise, there must have been an act, a forbearance, a detriment, or a destruction of a legal right, or a return promise, bargained for and given in exchange for the promise." Smoyer v. Birmingham Area Chamber of Commerce, 517 So.2d 585, 587 (Ala. 1987).' "

Merchants Bank v. Head, 161 So.3d 1151, 1155-56 (Ala. 2014) (quoting Ex parte Grant, 711 So.2d 464, 465 (Ala. 1997) ).

In the present case, the first paragraph of each of the contracts containing the arbitration provision states:

"The Buyer has purchased an automobile from Dealer, both of whom have executed the attached agreement setting forth the Buyer's obligation to pay (said obligation hereinafter 'Contract'). Buyer has executed the Contract in order to purchase the automobile described in the Contract (said vehicle hereinafter 'Vehicle'). The Buyer is a Credit Union member who requests the Credit Union purchase the contract from Dealer so that Buyer may make payments directly to the Credit Union. The Dealer hereby assigns the Contract, to the Credit Union."

Each purchaser executed the contract in order to purchase a vehicle through a loan from FSCU, and FSCU purchased the contracts at the purchasers' request so that the purchasers could make payments directly to FSCU. Those acts constitute valid consideration for the contract as a whole. Therefore, the arbitration provision in the contract does not fail for lack of consideration.

C. Scope of the Arbitration Provision

The purchasers allege that their tort claims against FSCU fall outside the scope of the arbitration provision. "[T]he burden of proving that the dispute falls outside the scope of the arbitration agreement shifts to the nonmovant after the movant proves the existence of a contract containing an arbitration provision and that the transaction that is the subject of the contract had an impact on interstate commerce." Edwards Motors, Inc. v. Hudgins, 957 So.2d 444, 447 (Ala. 2006). "Whether an arbitration provision encompasses a party's claims 'is a matter of contract interpretation, which interpretation is guided by the intent of the parties, and which intent, absent ambiguity in the clause, is evidenced by the plain language of the clause.' " Vintson, 753 So.2d at 505 (quoting Allied-Bruce Terminix Cos. v. Dobson, 684 So.2d 102, 110 (Ala. 1995) ). This Court has stated:

" ' "[There is a] strong presumption in favor of arbitration" created by the Federal Arbitration Act. See, generally, Blue Cross Blue Shield of Alabama v. Rigas, 923 So.2d 1077, 1083 (Ala. 2005). "In interpreting an arbitration provision, 'any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.' " The Dunes of GP, L.L.C. v. Bradford, 966 So.2d 924, 927 (Ala. 2007) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) ) (emphasis omitted). Indeed, " 'a motion to compel arbitration should not be denied "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." ' " Id. (quoting Ex parte Colquitt, 808 So.2d 1018, 1024 (Ala. 2001), quoting in turn United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) ) (emphasis omitted). "While, 'as with any other contract, the parties' intentions control, ... those intentions are generously construed as to issues of arbitrability.' " Carroll v. W.L. Petrey Wholesale Co., 941 So.2d 234, 237 (Ala. 2006) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) ).' "

Green Tree-AL LLC v. White, 55 So.3d 1186, 1192 (Ala. 2010) (quoting Kenworth of Mobile, Inc. v. Dolphin Line, Inc., 988 So.2d 534, 544-45 (Ala. 2008) ).

In the present situation, the contract states: "Any controversy or claim arising out of or relating to this Agreement shall be settled by binding arbitration." This Court has stated that "the phrase 'any controversy or claim arising out of or relating to' in arbitration agreements covers a broad range of disputes." Vann v. First Cmty. Credit Corp., 834 So.2d 751, 754 (Ala. 2002). In fact, " '[t]his Court has held [that] where a contract signed by the parties contains a valid arbitration clause that applies to claims "arising out of or relating to" the contract, that clause has a broader application than an arbitration clause that refers only to claims "arising from" the agreement.' " Vintson, 753 So.2d at 505 (quoting Reynolds & Reynolds Co. v. King Autos., Inc., 689 So.2d 1, 2-3 (Ala. 1996) ).

The purchasers claimed that FSCU negligently and wantonly deprived them of clear title to their vehicles and that FSCU, Action Auto, and Pine City conspired to deprive them of clear title to their vehicles. The purchasers alleged that the purchases of their vehicles were "financed by a purchase money loan obtained from [FSCU], which loan was secured by an alleged lien on the [vehicle] in favor of [FSCU]," and that FSCU failed to perfect its security interest in the vehicles by failing to ensure that title was properly applied for and issued by the State of Alabama for the purchased vehicles. The purchasers further alleged that they were damaged by being required to "pay[ ] loan on vehicle without clear title." Those claims against FSCU clearly "aris[e] out of or relat[e] to" the contract containing the arbitration provision. All the claims relate to the title of the vehicles purchased through contracts that were assigned to FSCU through the agreements containing the arbitration provision. Without the agreement containing the arbitration provision, no relationship as to the vehicles would exist between the purchasers and FSCU. Accordingly, the broad language of the arbitration provision encompasses the purchasers' claims against FSCU.

D. Jury Waiver

Finally, although not mentioned in the trial court's order, the purchasers make the argument on appeal that "the lack of any valid jury trial waiver provides another viable basis for the setting aside of the Assignment's arbitration requirement." Purchasers' brief, at 54. They further argue:

"Although a party may contractually waive his or her fundamental right to a jury trial, such a waiver must be narrowly and strictly construed. Ex parte Cupps, 782 So.2d 772, 775 (Ala. 2000). The court is to 'indulge every reasonable presumption against waiver.' Aetna Ins. Co. v. Kennedy ex rel. to Use of Bogash, 301 U.S. 389, 393, 57 S.Ct. 809, 812, 81 L.Ed. 1177 (1937)."

Purchasers' brief, at 54-55.

However, the purchasers' argument confuses jury-waiver provisions, like the one at issue in Ex parte Cupps, 782 So.2d 772 (Ala. 2000), and the other cases cited in the purchasers' brief, and arbitration provisions, like the one at issue in the present case. This Court has previously recognized the distinction between those two types of provisions: "[A]nalogy [of jury-waiver provisions] to arbitration cases is inappropriate because of the inapplicability of the Supremacy Clause of the United States Constitution based on cases from the United States Supreme Court construing the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and the resulting application of opposite presumptions in interpreting arbitration and jury-waiver provisions." Ex parte Carter, 66 So.3d 231, 239 (Ala. 2010) (plurality opinion); see also Ex parte Carter, 66 So.3d at 241 (Murdock, J., concurring in the result) ("I agree with the skepticism expressed in the main opinion as to the appropriateness of analogizing principles distilled from arbitration cases to cases involving jury-waiver provisions. As the main opinion notes, the Supremacy Clause of the United States Constitution applied in relation to cases construing the Federal Arbitration Act, 9 U.S.C. § 1 et seq., on the one hand, and the constitutional right to a trial by jury, on the other hand, result in 'opposite presumptions in interpreting arbitration and jury-waiver provisions.' ").

The issue before us is whether the trial court erred in denying FSCU's motions to compel arbitration under the arbitration provision in the "Dealer's Assignment and Buyer's Consent to Assignment." No issue concerning a jury-waiver provision is properly before this Court. Therefore, this argument does not present a basis on which to affirm the trial court's judgment.

IV. Conclusion

Based on the foregoing, we conclude that the trial court erred in denying FSCU's motions to compel arbitration. Accordingly, we reverse the trial court's judgment and remand these cases for proceedings consistent with this opinion.

1151000-REVERSED AND REMANDED.

1151001-REVERSED AND REMANDED.

1151002-REVERSED AND REMANDED.

1151003-REVERSED AND REMANDED.

1151004-REVERSED AND REMANDED.

1151005-REVERSED AND REMANDED.

1151006-REVERSED AND REMANDED.

1151007-REVERSED AND REMANDED.

Stuart, C.J., and Parker and Bryan, JJ., concur.

Bolin, Murdock, and Shaw, JJ., concur in the result.

      Those purchasers are Richard W. Etheredge, Kendrick M. Nettles, Wanda J. Pezent, David Moore, Martha H. Dunagan, Gene McClure, Kayla N. Williams, and Dana Dunn and Timothy Dunn, the appellees in these appeals. Action Auto sued each purchaser, along with Pine City, in a separate case.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Jack Dzurian DUBOSE v. Kay MCATEER, individually and as administrator of the Estate of Daniel W. McAteer, deceased
    2150687
    Court of Civil Appeals of Alabama.
    May 5, 2017
    Jason T. Fleishman of Fleishman Law Firm, Tuscaloosa, for appellant.
    Luann B. Springer, Northport, for appellee.
   MOORE, Judge.

Jack Dzurian DuBose appeals from a default judgment entered against him by the Tuscaloosa Circuit Court ("the trial court"), an order denying his Rule 55(c), Ala. R. Civ. P., motion to set aside the default judgment, and an order denying his Rule 60(b), Ala. R. Civ. P., motion. See discussion, infra. We affirm the trial court's default judgment and orders.

Procedural History

On February 2, 2016, Kay McAteer, both individually and as administrator of the estate of Daniel W. McAteer, deceased, filed a complaint in the trial court. McAteer alleged that she individually owned a mobile home and that the estate of Daniel W. McAteer owned fee-simple title to the land upon which the mobile home resided ("the property"). McAteer claimed that DuBose had agreed to purchase the mobile home through a lease-to-own arrangement, which, she claimed, DuBose had not honored; she also claimed that DuBose had "trashed" the property and had failed and refused to vacate the property. McAteer requested that the trial court order DuBose to vacate the property, to clean the property, to restore to her the possession of the mobile home, and to "pay such sums as the court may assess for damages, mesne profits, and other injury to the land."

On March 7, 2016, McAteer filed an application for the entry of a default judgment; she asserted therein that DuBose had failed to answer or otherwise defend against the complaint and that more than 30 days had elapsed since he had been served with the complaint. In the application, McAteer demanded possession of the property and the mobile home, but she did not claim any money from DuBose. The trial court entered a default judgment against DuBose on March 10, 2016, awarding possession of the mobile home to McAteer individually and possession of the property to the estate.

In a letter to the court dated March 18, 2016, DuBose requested that the trial court set aside the default judgment; he asserted that he had been served with the complaint on February 11, 2016, upon returning home from Texas where he had worked for several days and that he had believed that an answer to the complaint would have been timely if it was filed by March 12, 2016. Beneath his signature on the letter, DuBose included as his address a post office box located in Northport ("the Northport address"). The trial court set his request to set aside the default judgment for a hearing on March 30, 2016, which DuBose did not attend, prompting the trial court to enter an order on that date denying his request to set aside the default judgment.

In a second letter to the court dated April 11, 2016, DuBose again requested that the default judgment be set aside; he asserted that he had not received notice of the March 30, 2016, hearing. Along with that letter, DuBose filed a request for a change of address, requesting that all notices be mailed to him at the Northport address. The trial court entered an order on April 12, 2016, denying DuBose's April 11, 2016, request to set aside the default judgment. On May 3, 2016, the trial court entered an order that stated:

"A default judgment was previously entered in this case. Subsequently, [DuBose] requested that the judgment be set aside. Those motions were denied. The clerk's office today informed the undersigned that the office, through oversight, failed to change [DuBose's] address in the court record when requested. This Court will, by separate order, set a status hearing to review this matter."

On that same date, the trial court entered a notice indicating that DuBose's request to set aside the default judgment was set for a hearing on May 9, 2016, and designating that notice of the hearing be sent to DuBose at the Northport address. At the hearing, DuBose's attorney moved that the hearing date be continued; that motion was denied. DuBose's attorney filed an affidavit signed by DuBose in which DuBose asserted that he was rightfully occupying the property pursuant to a written contract to purchase the property. McAteer moved to strike the affidavit on May 10, 2016. DuBose filed a notice of appeal on May 11, 2016.

Issues on Appeal

Before proceeding further, we must first determine the scope of this appeal. On March 10, 2016, the trial court entered a default judgment, which was a final judgment. See McGugin v. McGugin, 23 So.3d 682 (Ala. Civ. App. 2009). Although the trial court did not award McAteer any damages as alleged in the complaint, which ordinarily would prevent the default judgment from becoming a final judgment, see Ex parte Family Dollar Stores, Inc., 906 So.2d 892 (Ala. 2005), McAteer has informed this court that she waived any claim for damages by applying only for possession of the property and the mobile home, so the default judgment resolved all the matters in controversy. See Tidwell v. Tidwell, 496 So.2d 91 (Ala. Civ. App. 1986) (defining a "final judgment" as "a terminal decision which demonstrates there has been complete adjudication of all matters in controversy between the litigants").

On March 18, 2016, DuBose filed a letter, which we construe as a motion to set aside the default judgment under Rule 55(c), Ala. R. Civ. P., which the trial court denied by an order entered on March 30, 2016. DuBose filed a letter on April 11, 2016, indicating that he had not received notice of the March 30, 2016, hearing that had been scheduled on his Rule 55(c) motion and requesting that the trial court reconsider its order denying that motion. However, because more than 30 days had elapsed since the entry of the default judgment, the trial court could not reconsider its denial of the Rule 55(c) motion to set aside the default judgment, which had become a final judgment. See R.D.J. v. A.P.J., 142 So.3d 662 (Ala. Civ. App. 2013) (trial court lost jurisdiction after it denied original motion to set aside default judgment such that it could not consider motion to reconsider the denial of that motion).

The trial court could consider the April 11, 2016, letter only as a motion, pursuant to Rule 60(b), Ala. R. Civ. P., to vacate the March 10, 2016, default judgment. See Thurmond v. Parrish, 152 So.3d 358, 360 n.1 (Ala. Civ. App. 2014). The trial court denied the Rule 60(b) motion by an order entered on April 12, 2016. Thereafter, the trial court purported to reconsider its April 12, 2016, order, but a trial court has no jurisdiction to reconsider an order denying a Rule 60(b) motion, which is a final judgment. See Ex parte Keith, 771 So.2d 1018, 1022 (Ala. 1998).

Based on the foregoing, we conclude that the trial court entered three valid, final judgments-the default judgment entered on March 10, 2016, the order denying the Rule 55(c) motion to set aside the default judgment entered on March 30, 2016, and the order denying the Rule 60(b) motion entered on April 12, 2016. See Terry v. Frisbee, 404 So.2d 345 (Ala. Civ. App. 1981) (order denying Rule 60(b) motion to vacate default judgment was final, appealable judgment). DuBose timely filed his notice of appeal in regard to all three judgments, see Rule 4, Ala. R. App. P., but he indicates in his notice of appeal that he is appealing only from the default judgment entered on March 10, 2016. However in his docketing statement, DuBose indicates that he was prejudiced by the lack of notice of the hearing on his Rule 55(c) motion to set aside the default judgment, which was the gravamen of his Rule 60(b) motion that was denied on April 12, 2016. In his brief to this court, DuBose argues that the trial court erred in failing to set aside the default judgment and in failing to notify him of the hearing date on his Rule 55(c) motion to set aside the default judgment. Because McAteer has responded to those arguments, we conclude that no prejudice would result from treating the notice of appeal as arising from all three final judgments. See Rules 1 & 2, Ala. R. App. P.; see also Okafor v. State, 225 So.3d 72 (Ala. Civ. App. 2016) (holding that contents of docketing statement can be considered when determining from which judgment an appeal has been taken), rev'd on other grounds by Okafor v. State, 225 So.3d 93 (Ala. 2016). Therefore, we consider the propriety of all three judgments in this appeal.

Analysis

Under Rule 55(a), Ala. R. Civ. P., a party may obtain a default judgment against an opposing party against whom a judgment or affirmative relief is sought who has failed to timely plead or otherwise defend after receiving service of process. In this case, the record shows that DuBose was served on February 2, 2016, and that he had not appeared, filed a pleading in, or otherwise defended the action as of March 7, 2016, when McAteer filed an application for the entry of a default judgment, which was 34 days after he had been served. See Rule 12(a), Ala. R. Civ. P. (giving defendant 30 days from service of summons and complaint to file answer). Therefore, the trial court had the authority to enter a default judgment against DuBose.

Rule 55(c) provides, in pertinent part, that "[t]he court may ... set aside a judgment by default on the motion of a party filed not later than thirty (30) days after the entry of the judgment." We note that Rule 55(c) does not specifically require a hearing on a motion to set aside a default judgment. DuBose does not cite any authority for the proposition that a party moving to set aside a default judgment is entitled to a hearing. See Rule 28(a)(10), Ala. R. Civ. P. Our caselaw holds that a hearing may be required on a motion to set aside a default judgment, but only when a defendant has made a prima facie case in a written motion that a default judgment should be set aside. See D.B. v. D.G., 141 So.3d 1066 (Ala. Civ. App. 2013).

In order to have a default judgment set aside, a defendant must prove that he has a meritorious defense, that the plaintiff will not be prejudiced if the default judgment is set aside, and that the default judgment was not a result of the defendant's own culpable conduct. See Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala. 1988). A defendant makes out a prima facie case to have a default judgment set aside when the defendant presents arguments and affidavits or other evidence to establish each of the three Kirtland factors. D.B. v. D.G., 141 So.3d at 1071. If a defendant fails to meet its initial burden of demonstrating the existence of all three Kirtland factors, a trial court may summarily deny the motion to set aside the default judgment and does not commit reversible error by denying the motion to set aside the default judgment without conducting a hearing. Carroll v. Williams, 6 So.3d 463, 468 (Ala. 2008).

In the present case, after the default judgment was entered in favor of McAteer, DuBose requested, in his March 18, 2016, letter to the trial court that the court set aside that default judgment, asserting only that he had been mistaken regarding the time in which he could submit an answer. DuBose failed to argue before the trial court at that time that he had a meritorious defense to the claims asserted by McAteer in her complaint or that McAteer would not be unfairly prejudiced if the default judgment were to be set aside. Thus, DuBose failed to satisfy his initial burden under the Kirtland analysis, and his Rule 55(c) motion to set aside the default judgment could be properly denied without a hearing. Under these circumstances, any failure to notify DuBose of a hearing to which he was not entitled would be, at most, harmless error. See Rule 45, Ala. R. App. P.; see also Bearden v. Capital Bank, 985 So.2d 950, 952 (Ala. Civ. App. 2007) (holding that any failure to provide notice of a hearing on a summary-judgment motion was harmless error because the defendant had not attempted to argue that he had a meritorious defense such that the alleged lack of notice had prejudiced him).

Because DuBose did not make out a prima facie case that he was entitled to have the default judgment set aside, the trial court did not err in denying his Rule 55(c) motion to set aside the default judgment. Assuming that the trial court erred in failing to send DuBose notice of the March 30, 2016, hearing at his proper mailing address, that error would be harmless and would not require reversal of the default judgment. Accordingly, the default judgment, the order denying the Rule 55(c) motion to set aside the default judgment, and the order denying the Rule 60(b) motion are due to be affirmed.

McAteer's request for the award of attorney's fees on appeal is denied.

AFFIRMED.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.

      DuBose did raise a meritorious defense to the action in his affidavit filed on May 9, 2016. However, at that point, the trial court, having denied the Rule 55(c) motion to set aside the default judgment and having denied the Rule 60(b) motion, had lost jurisdiction over the case. Pursuant to its May 3, 2016, order, the trial court purported to reconsider the denial of the Rule 60(b) motion ex mero motu, but it had no jurisdiction to do so. See Ex parte Keith, 771 So.2d at 1022. Any proceedings conducted and any actions taken after April 12, 2016, were void and without any legal effect. See id. Therefore, the affidavit could not be considered by the trial court, and we cannot consider it on appeal.

      DuBose did not assert at any time in the proceedings below that McAteer would not be unfairly prejudiced if the default judgment were to be set aside.


author: DONALDSON, Judge.

text:
    ALABAMA PEACE OFFICERS' STANDARDS AND TRAINING COMMISSION v. Bryan Mark GRIMMETT
    2150888
    Court of Civil Appeals of Alabama.
    May 5, 2017
    Luther Strange, atty. gen.; and Joseph D. Steadman of Dodson & Steadman, P.C., Mobile, deputy asst. atty. gen. and gen. counsel, Alabama Peace Officers' Standards and Training Commission, for appellant.
    Kenneth J. Mendelsohn of Jemison & Mendelsohn, P.C., Montgomery, for appellee.
    Barry D. Watson, Montgomery, for amici curiae Alabama District Attorneys Association, Alabama Chiefs of Police Association, and Alabama Sheriffs Association, in support of the appellant.
   DONALDSON, Judge.

The Alabama Peace Officers' Standards and Training Commission ("the commission") appeals from the judgment of the Montgomery Circuit Court ("the trial court") reversing the commission's December 2015 order affirming its revocation of Bryan Mark Grimmett's law-enforcement certification. The commission's decision to revoke relied solely on a provision in a plea agreement filed in the Cullman Circuit Court in 2001 in which Grimmett had agreed not to work in law enforcement. The Cullman Circuit Court, however, had entered an order in May 2015 removing that provision in the plea agreement. Although the commission may base a decision regarding law-enforcement certification on an evaluation of an applicant's character, the commission did not conduct a character evaluation on Grimmett. Instead, the commission based its revocation of Grimmett's law-enforcement certification exclusively on the rescinded portion of the plea agreement. We therefore affirm the portion of the trial court's judgment reversing the commission's revocation of Grimmett's law-enforcement certification. In the judgment, the trial court also directed the commission to reinstate Grimmett's law-enforcement certification to work in a law enforcement agency. Because Grimmett had not completed the requirements necessary for a full reinstatement at the time his law-enforcement certification was revoked, we reverse that portion of the trial court's judgment.

Facts and Procedural History

The commission is an agency of the State of Alabama. Ex parte Alabama Peace Officers' Standards & Training Comm'n, 34 So.3d 1248, 1251 (Ala. 2009) (" Section 36-21-41, Ala. Code 1975, creates the Alabama Peace Officers' Standards and Training Commission. It is undisputed that the statutorily created commission is an agency of the State of Alabama."). The following facts in the administrative record before the commission are not in dispute.

Before 2001, Grimmett was employed as a state trooper and was certified by the commission to work as a law-enforcement officer. In 2001, Grimmett was indicted by a Cullman grand jury on felony charges of theft of property and of altering computer equipment with intent to defraud. The State was represented in the criminal case by the Alabama Attorney General's Office. Grimmett entered into a plea agreement ("the plea agreement") in the Cullman Circuit Court in which he pleaded guilty to the misdemeanor offense of violating § 13A-8-103(a)(1), Ala. Code 1975. As a part of the plea agreement, Grimmett agreed to the following condition, among others: "Bryan Grimmett agrees that he will not seek future employment in any capacity with any law enforcement agency." Grimmett also agreed to pay $1,740 in restitution. On June 25, 2001, based on the plea agreement, the Cullman Circuit Court dismissed the felony charges, adjudicated Grimmett guilty of the misdemeanor offense, and sentenced Grimmett to 12 months' hard labor. The sentence was suspended, and Grimmett was placed on unsupervised probation for 24 months. The commission was not notified of the conviction or of the terms of the plea agreement at that time.

Effective December 11, 2006, the Alabama Board of Pardons and Paroles granted Grimmett a pardon of his conviction in the criminal case in the Cullman Circuit Court. In December 2014, Grimmett applied to work as a state trooper with the Alabama Law Enforcement Agency ("ALEA"). ALEA hired Grimmett. A law-enforcement officer hired by ALEA must be certified by the commission to work in that capacity. See § 36-21-50, Ala. Code 1975. Apparently, Grimmett's certification to work as a law-enforcement officer had never been revoked following the 2001 plea agreement. Although the record is not clear, it appears that Grimmett's hiring by ALEA triggered an examination into his certification status. Grimmett was later discharged from his employment with ALEA. According to both parties, the discharge occurred in February 2015.

On May 11, 2015, Grimmett and an assistant district attorney in Cullman County ("the Cullman County assistant district attorney") filed a joint motion in the Cullman Circuit Court seeking an order deleting the provision in the plea agreement regarding Grimmett's agreement not to seek employment with any law-enforcement agency. On that same day, the Cullman Circuit Court entered an order granting the joint motion and removing the provision from the plea agreement. That action was taken without the knowledge or participation of the Attorney General's Office. At the time the Cullman Circuit Court entered that order, Grimmett had been discharged from probation.

On June 24, 2015, the commission sent Grimmett an "Official Notice of Revocation." The notice stated:

"As a result of your conviction of Altering Computer Equipment in violation of Ala. Code § 13A-8-103(a)(1), specifically the conditions of your plea agreement, which states that you 'would not seek future employment in any capacity with any law enforcement agency,' THE ALABAMA PEACE OFFICERS STANDARDS AND TRAINING COMMISSION HAS REVOKED YOUR CERTIFICATION as a law enforcement officer in Alabama. The revocation is effective immediately.
"Should your conviction be reversed or set aside, you may, at that time, request a hearing before the Commission."

The commission also sent a letter to Grimmett dated August 11, 2015, again stating that the sole basis of the revocation was Grimmett's plea agreement in which he had agreed not to seek future employment with a law-enforcement agency.

Grimmett administratively appealed the revocation and requested a hearing. The commission conducted a hearing on December 2, 2015. At the commencement of the hearing, one of the members of the commission announced that the subject of the hearing was Grimmett's law-enforcement certification. The member also stated that the commission first learned of the work restriction in Grimmett's plea agreement when Grimmett applied to become a state trooper again in December 2014. At the hearing, the commission received documents related to Grimmett's criminal case, including an arrest record, the indictment against him, the plea agreement, the case-action summary, and the Cullman Circuit Court's order modifying the plea agreement. One of the members of the commission stated: "We are here on [the Cullman Circuit Court's order to modify the plea agreement] and [the plea agreement] ... which was [Grimmett's] agreement."

The commission received testimony from the assistant attorney general who had prosecuted Grimmett in 2001 ("the assistant attorney general") regarding the circumstances of the plea agreement and the allegations against Grimmett that led to the indictment. The assistant attorney general testified that the Alabama Attorney General's Office was not consulted or notified regarding the 2015 joint motion to remove the work-restriction provision in the plea agreement that had been filed by Grimmett and the Cullman County assistant district attorney.

Grimmett submitted character evidence on his behalf; however, Grimmett did not testify at the hearing.

On December 8, 2015, the commission entered an order denying Grimmett's appeal, stating:

"The Commission finds based upon the uncontradicted documentary evidence, that Mr. Grimmett was indicted on felony charges in April 2001 by the Cullman County Grand Jury, including Count 1, a felony charge of altering computer equipment with intent to defraud pursuant to Section 13A-8-103(a)(1), and Count II, a felony charge of first degree Theft of Property pursuant to Section 13A-8-3 of the Code of Alabama. ... A felony conviction would have resulted in mandatory revocation of Mr. Grimmett's law enforcement certification pursuant to Section 36-21-52 of the Code Alabama.
"Pursuant to [the plea agreement], on June 18, 2001, Mr. Grimmett plead[ed] guilty to a Class A misdemeanor, altering computer equipment in violation of Section 13A-8-103(a)(1) Code of Alabama. The State's consent to the plea agreement was subject to a number of conditions precedent including that 'Bryan Grimmett agrees he will not seek future employment in any capacity with any law enforcement agency. Further, Grimmett agrees that a copy of this agreement and of his guilty plea will be filed with the Alabama Peace Officers Standards and Training Commission.' ... The Case Action Summary in [Grimmett's criminal case] reflects that the felony charges were dismissed pursuant to the plea agreement, and that Mr. Grimmett was sentenced on the misdemeanor charge under Section 13-8A-103 to twelve months hard labor suspended for twenty-four months on unsupervised probation. ... Mr. Grimmett was ordered to pay $1,740.00 in restitution. ...
"The Alabama Attorney General's Office prosecuted Mr. Grimmett in 2001, and agreed to the plea agreement. [The assistant attorney general], who testified before the Commission in this matter, handled the prosecution of Mr. Grimmett for the Attorney General's Office. [The assistant attorney general] testified that the Attorney General's Office had not been consulted concerning any recent motion in the Cullman County Circuit Court to remove the agreement not to work in law enforcement condition to the plea agreement, and had not joined in any motion to delete or alter this condition precedent to the plea agreement or the order entered by the Court in 2001 pursuant to the plea agreement.
"In the documents before the Commission, there is a Joint Motion to Amend Order which appears to have been filed in the Cullman County Circuit Court on May 11, 2015 by [the Cullman County assistant district attorney] with the Cullman County District Attorney's Office, and attorney Brandon C. Little on behalf of Mr. Grimmett. This order states '[b]oth parties waive any time limits that would prevent this amendment.' ... However, [the assistant attorney general] testified that the Alabama Attorney General's Office had not waived any time limits preventing amendment of the plea agreement and order. Furthermore, the Commission concludes that the parties cannot confer jurisdiction on the Circuit Court to modify an order entered over a decade ago. The Commission concludes that the order entered May 11, 2015 removing the restriction from Bryan Mark Grimmett being employed as a police officer in the State of Alabama, entered almost 14 years after the plea agreement was accepted, does not support the setting aside of the Commission's order of revocation.
"Accordingly, the Commission, by unanimous decision, hereby ORDERS that the appeal of BRYAN MARK GRIMMETT is DENIED, and the revocation of his law enforcement certification stands."

(Capitalization in original.)

On January 4, 2016, Grimmett petitioned the trial court for judicial review of the commission's decision. See Ala. Code 1975, § 41-22-20. Grimmett filed a brief arguing that the work-restriction provision in the plea agreement was invalid and unenforceable; that the Cullman Circuit Court removed that provision on May 11, 2015, and had the jurisdiction to do so; that testimony from the assistant attorney general should not have been allowed at the hearing before the commission; and that § 36-21-52, Ala. Code 1975, cited in the commission's order as the basis for the action, concerns only felony convictions and not misdemeanor convictions or felony charges. The commission filed a responsive brief, stating that "[t]he Commission revoked Grimmett's certification based on his voluntary guilty plea." The commission argued in part that the plea agreement restricted Grimmett from seeking employment with a law-enforcement agency; that the work restriction from the plea agreement was valid; that the Cullman Circuit Court lacked the jurisdiction to enter the May 11, 2015, order removing the work restriction in the plea agreement; and that testimony from the assistant attorney general was either admissible or at least not prejudicial to Grimmett. Grimmett filed a reply brief arguing that the commission did not have the authority to disregard the Cullman Circuit Court's May 11, 2015, order.

The trial court conducted a hearing during which it heard oral arguments from the parties. On June 30, 2016, the trial court entered a judgment reversing the commission's decision and ordering the commission to certify Grimmett. On July 13, 2016, the commission filed a motion to alter, amend, or vacate the judgment. The commission asserted that "[t]he commission's revocation order is based on the commission's finding that [Grimmett], then a State Trooper, agreed never to work in law enforcement as part of a Plea Agreement executed on June 18, 2001, and merged into the final order of the Circuit Court of Cullman County dated June 25, 2001, dismissing felony charges against [Grimmett] pursuant to the Plea Agreement." The commission reiterated its argument that the work-restriction provision of the plea agreement was valid and that the Cullman Circuit Court lacked jurisdiction to enter the May 11, 2015, order removing that provision. The commission also sought to remove the portion of the judgment referring to the trial court having received testimony because the assistant attorney general's testimony before the commission was the only testimony in the case. The commission also argued to remove the portion of the judgment ordering the reinstatement of Grimmett's certification. The commission asserted that Grimmett must pass a character review and complete an 80-hour "refresher" course before his certification can be reinstated. Grimmett filed an objection to the commission's postjudgment motion, arguing that the commission's order was based solely on the plea agreement and not on any character-review requirement. Grimmett conceded, however, that he will have to take the 80-hour refresher course, but he argued that the requirement was not a ground to amend the judgment.

On July 27, 2016, the trial court entered an order denying the commission's motion to alter, amend, or vacate. On July 29, 2016, the commission filed a notice of appeal to this court. This court has jurisdiction pursuant to § 12-3-10, Ala. Code 1975.

Upon the commission's motion, this court remanded the case to the trial court for it to enter a judgment compliant with § 41-22-20(l ), Ala. Code 1975. On September 7, 2016, the trial court entered an amended judgment, that stated, in relevant part:

"The Court having considered [Grimmett's] Petition for Judicial Review, and for cause shown it is hereby ORDERED that [the commission's] final decision refusing to reinstate Bryan Grimmett's law enforcement certification is at the very least, a violation of constitutional or statutory provisions, in excess of the statutory authority of [the commission], affected by other error of law, clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record, and unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion. Therefore, it is Hereby ORDERED, ADJUDGED, and DECREED that [the commission's] final decision in the above styled case is REVERSED and [the commission] is Ordered to reinstate Bryan Grimmett's law enforcement certification.
"....
"After hearing argument[s] and considering the evidence presented from both parties, this Court found that:
"This decision made by [the commission] was in violation of constitutional or statutory provisions.
"Firstly, [Grimmett] pled guilty to a Class A misdemeanor not a felony. Alabama Code § 36-21-52 provides that [the commission] shall revoke certification of an officer who is convicted of a felony. The record is clear that Grimmett was not convicted of a felony, but was convicted, by way of a guilty plea, of a Class A misdemeanor.
"Moreover, the decision made by [the commission] was in excess of statutory authority of [the commission].
"As it stands today, [the commission] is an Administrative Agency in the State of Alabama not a Court of law. As such, [the commission] holds no authority to deem any decision made by a Circuit Court Judge in the State of Alabama as having been made without standing or outside the statute of limitations. [The commission] went as far as to determine that 'The Commission concludes that the parties cannot confer jurisdiction on the Circuit Court to modify an order entered over a decade ago.' If [the commission] takes issue with the Circuit Court Judge in Cullman County's decision to enter an Order in that case removing the plea agreement clause at issue here, the proper court of review is the Alabama Court of Criminal Appeals not itself.
"Further, the decision made by [the commission] was affected by other error of law.
"The law is very clear that a sentence imposed following a conviction of a crime must conform to the statute and cannot exceed the term prescribed by law. Howard v. State, 390 So.2d 32 (Ala. Cr. App. 1980). In this case, the maximum punishment for this Class A misdemeanor would be twelve months in the county jail, a fine of up to $2,000, or both. Ala. Code §§ 13A-5-7, -12. A lifetime ban of working in law enforcement contemptibly exceeds the term of punishment set out in the statute for the aforementioned charge. This Court equates this type of proscription as akin to banishment cases in which Defendants agreed to leave the State and never return as a part of their plea agreements. The Alabama Court of Criminal Appeals ruled this was outside the jurisdiction of the Court and such clauses were deemed void.
"Additionally, the decision by [the commission] was clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.
"The record is clear that [the commission] in the above styled case was acutely aware that [Grimmett] pled guilty to a Class A misdemeanor not a felony. The Commission is given express authority to revoke a certification of an officer having been convicted of a felony offense not a misdemeanor. Moreover, [the commission] was also aware that the clause at issue was struck from the agreement by a Cullman County Circuit Court Judge. Yet, [the commission] decided that in the face of substantial evidence that there was no bar in place that would prevent Grimmett from being recertified, [the commission] decided otherwise.
"Finally, the decision by [the commission] was unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.
"[The commission] recertified Grimmett after the Court entered the May 11, 2015 Order granting an amendment to the plea agreement. Not one month later, June 24, 2015, [the commission] reversed course and revoked Grimmett's certification. This decision seems inconsistent. Why was Grimmett recertified in the first place if the Commission had concerns as to the clause contained in the plea agreement? Further, [the commission] took testimony from the prosecutor in Grimmett's criminal case who only pontificated his opinions on Grimmett's recertification, lauded [she] the lack of jurisdiction of the Circuit Court Judge to enter the Order at issue in this case, and scoffed at his having not been included in the motion to the Circuit Court to remove said provision contained in the plea agreement. None of the aforementioned take into consideration that no statutory or legal concept exists to prevent [the commission] from recertifying Grimmett.
"WHEREFORE, it is Hereby ORDERED, ADJUDGED, and DECREED that [the commission's] final decision in the above styled case is REVERSED and [the commission] is Ordered to reinstate Bryan Grimmett's law enforcement certification."

(Capitalization in original.)

This court granted a motion filed by the Alabama District Attorneys' Association, the Alabama Sheriffs' Association, and the Alabama Chiefs of Police Associations for leave to appear as amici curiae in support of the commission. On March 14, 2017, this court held oral argument on the appeal.

Standard of Review

The standard of appellate review to be applied by the circuit courts and by this court in reviewing the decisions of administrative agencies is the same. Alabama State Pers. Bd. v. Dueitt, 50 So.3d 480, 482 (Ala. Civ. App. 2010). Section 41-22-20(k), Ala. Code 1975, provides the limited scope of judicial review of an administrative agency's order:

"Except where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence or for further proceedings. The court may reverse or modify the decision or grant other appropriate relief from the agency action, equitable or legal, including declaratory relief, if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
"(1) In violation of constitutional or statutory provisions;
"(2) In excess of the statutory authority of the agency;
"(3) In violation of any pertinent agency rule;
"(4) Made upon unlawful procedure;
"(5) Affected by other error of law;
"(6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
"(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion."

" '[T]his court reviews a circuit court's judgment as to an agency's decision without a presumption of correctness because the circuit court is in no better position to review the agency's decision than is this court. Clark v. Fancher, 662 So.2d 258, 261 (Ala. Civ. App. 1994).' " Affinity Hosp., LLC v. Brookwood Health Servs., Inc., 143 So.3d 208, 211-12 (Ala. Civ. App. 2013) (quoting Brookwood Health Servs., Inc. v. Affinity Hosp., LLC, 101 So.3d 1221, 1225 (Ala. Civ. App. 2012) ). "[I]n order for the [agency's] decision ... to warrant affirmance, that decision would have to be supported by 'substantial evidence,' which in an administrative context is 'relevant evidence that a reasonable mind would view as sufficient to support the determination.' " Alabama State Pers. Bd. v. Dueitt, 50 So.3d at 482 (quoting Ex parte Personnel Bd. of Jefferson Cty., 648 So.2d 593, 594 (Ala. Civ. App. 1994) ).

Discussion

Section 36-21-52, Ala. Code 1975, is the only legal authority cited in the commission's order regarding the commission's authority to revoke Grimmett's law-enforcement certification. Section 36-21-52 provides:

"(a) The certification or authority of any law enforcement officer certified by the Alabama Peace Officers' Standards and Training Commission or otherwise exempt from the minimum standards pursuant to subsection (b) of Section 36-21-46, shall be revoked by the commission when a law enforcement officer is convicted of a felony. If the conviction is reversed or a new trial granted, the certification or authority of the law enforcement officer shall be restored.
"(b) Any law enforcement officer whose certification or authority is revoked pursuant to this section may request a hearing before the commission concerning the revocation. The only issue at the hearing shall be whether the revocation was based on a felony conviction of the officer."

Grimmett was convicted only of a misdemeanor offense. To the extent that the commission relied on § 36-21-52 as statutory authority for revoking Grimmett's certification, the commission's order was affected by an "error of law." § 41-22-20(k)(5).

The commission argues that it properly revoked Grimmett's certification because Grimmett was bound by the work-restriction provision in the plea agreement. We note that the commission was not a party to that agreement. Nonetheless, the commission had before it indisputable evidence that the Cullman Circuit Court had entered an order on May 11, 2015, that struck the provision in the plea agreement restricting Grimmett's employment. Disregarding the Cullman Circuit Court's order was "a clearly unwarranted exercise of discretion." § 41-22-20(k)(7). There was no evidence indicating that Grimmett was bound by the work-restriction provision of the plea agreement at the time of the hearing before the commission. Therefore, the commission's reliance on its finding that Grimmett was bound by the work-restriction provision in the plea agreement was "[c]learly erroneous in view of the reliable, probative, and substantial evidence on the whole record." § 41-22-20(k)(6).

The commission argues, as it had determined in its order, that the Cullman Circuit Court's order that struck the work-restriction provision in the plea agreement was invalid. We note that no action was taken in the Cullman Circuit Court attacking the validity of the May 2015 order. The trial court found that the commission did not have the authority to adjudicate the validity of the Cullman Circuit Court's order regarding Grimmett's criminal case. " ' "[A]n administrative board or agency is purely a creature of the legislature, and has only those powers conferred upon it by its creator." ' " Ex parte Chambers, 137 So.3d 912, 916 (Ala. Civ. App. 2013) (quoting Ex parte Crestwood Hosp. & Nursing Home, Inc., 670 So.2d 45, 47 (Ala. 1995), quoting in turn Ex parte City of Florence, 417 So.2d 191, 194 (Ala. 1982) ). We note that the Alabama Constitution provides for a separation of powers between the executive and judicial branches of government and that "[t]he criminal jurisdiction of this state is vested in the circuit courts, district and municipal courts and such officers as are by law clothed with criminal jurisdiction." § 12-1-3, Ala. Code 1975.

The commission does not address whether it had the requisite statutory authority to determine the validity of the Cullman Circuit Court's order. "When an appellant fails to argue an issue in its brief, that issue is waived." Boshell v. Keith, 418 So.2d 89, 92 (Ala. 1982). We therefore decline to further discuss that issue, and we affirm the trial court's finding that the commission exceeded its statutory authority as an agency and unlawfully proceeded to adjudicate the Cullman Circuit Court's order as invalid. See § 41-22-20(k)(2) and (4).

Moreover, an appeal of the Cullman Circuit Court's order is not before us. Because the commission fails to show that it had the authority to collaterally attack that order or the proceedings before the Cullman Circuit Court, we decline to discuss the parties' arguments regarding the validity of the Cullman Circuit Court's order, the validity of the provisions of the plea agreement, or whether the Cullman County assistant district attorney or the Attorney General's Office should have represented the State in the motion to remove the work-restriction provision from Grimmett's plea agreement. See Cooper v. Bailey, 288 Ala. 84, 86, 257 So.2d 332, 333 (1972) ("This court does not decide questions which are unnecessary to the disposition of a case on appeal.").

The commission argues that it otherwise had the authority to revoke Grimmett's certification pursuant to Ala. Admin. Code (Peace Officers' Comm'n), Rule 650-X-1-.15(7), which states, in part:

"The Commission shall have the following functions and duties together with all powers necessary or convenient for the performance thereof:
"....
"(7) To revoke its approval or certification of any person appointed or certified pursuant to this article for failure to meet the continuing training or education requirements set forth in the rules of the commission or for failure to meet the requirements of Section 3[6]-21-46[, Ala. Code 1975]."

In its initial brief on appeal, the commission asserts that "[it] may refuse admission to training necessary for recertification to applicants, like Grimmett, convicted of misdemeanor crimes."

Section 36-21-46(a)(5), Ala. Code 1975, requires that "[t]he applicant shall be a person of good moral character and reputation. In making this determination, the commission shall consider convictions for misdemeanors and other factors set forth in its duly adopted and promulgated rules." Alabama Admin. Code (Peace Officers' Comm'n), Rule 650-X-2-.05(3), states:

"Conviction of a misdemeanor pursuant to any municipal, state or federal law shall not automatically disqualify a person as a law enforcement officer. Such a conviction may be considered as a factor among several in evaluating fitness as a law enforcement officer, which factors shall include but not be limited to the nature and gravity of the offense or offenses, the time that has passed since the conviction and/or completion of the sentence and the nature of the job held or sought and such other factors as to affect the applicant's character. In the case of a misdemeanor conviction, involving a guilty plea or plea of nolo contendere, involving force, violence, moral turpitude, perjury, or false statements, notwithstanding suspension of sentence or withholding of adjudication, results of psychological testing shall also be considered as a factor in considering the applicant's fitness as a law enforcement officer."

Although the commission could have considered that Grimmett had agreed to the work restriction in his plea agreement as a factor in assessing Grimmett's fitness as a law-enforcement officer, the commission stated on appeal that it did not conduct a character evaluation on Grimmett nor consider Grimmett's character in making its decision to revoke his law-enforcement certification. Because the commission did not exercise its authority pursuant to Ala. Admin. Code (Peace Officers' Comm'n), Rule 650-X-2-.05(3), we cannot uphold the commission's revocation order based on a review of Grimmett's character.

The sole basis for revoking Grimmett's law-enforcement certification was the commission's finding that Grimmett was still bound to the work restriction in his plea agreement. Because the commission could not have relied on that finding, we affirm the trial court's reversal of the commission's revocation of Grimmett's law-enforcement certification.

The commission and amici curiae also argue that the judgment, insofar as it orders the reinstatement of Grimmett's law-enforcement certification, exempts Grimmett from the requirements for recertification such as taking a refresher course and passing a character evaluation. Although a negative character review was not a basis for the commission's revocation of Grimmett's law-enforcement certification, we note that Grimmett was not subjected to a character evaluation, and we are not provided with any reasons why the commission may not continue to assess his fitness as a law-enforcement officer. Regarding recertification courses, Ala. Admin. Code (Peace Officers' Comm'n), Rule 650-X-12-.02(4), provides:

"After a two year absence from employment as a law enforcement officer in this state, a previously certified law enforcement officer in this state shall be required to apply for renewal of his/her certification which will require successful completion of an approved 80-hour academy recertification course. A previously certified law enforcement officer in this state, who has not been employed as a law enforcement officer for two years or more in this state, may be provisionally appointed for six months by the employing agency upon their submitting a notice to the commission as required by Rule 650-X-1-.16(5) and an application for training as set out in Rule 650-X-2-.09, requesting to attend the next available 80-hour academy recertification course."

Alabama Admin. Code (Peace Officers' Comm'n), Rule 650-X-12-.02(10), provides:

"The certification of any law enforcement officer, not otherwise exempt, shall be suspended if the law enforcement officer's continuing education becomes delinquent twenty-four (24) or more hours. The law enforcement officer shall then be required to complete the Alabama Peace Officers Standards and Training Commission eighty (80) hour refresher training program before having his/her certification reinstated. The Executive Secretary shall notify the law enforcement officer and the chief law enforcement officer of the employing agency, thirty (30) days before the effective date of said suspension.
"(a) The certification of any law enforcement officer shall be automatically suspended if the law enforcement officer's employment is terminated and he/she is in violation of this section at the time of termination."

As indicated in the record, Grimmett conceded that he had not fulfilled the required 80-hour refresher course, and Grimmett is no longer employed with ALEA. Pursuant to Ala. Admin. Code (Peace Officers' Comm'n), Rule 650-X-12-.02(4) and (10), Grimmett's law-enforcement certification was suspended before the commission revoked it. Therefore, the trial court's judgment does not return Grimmett's certification to the status quo before the commission's revocation. Accordingly, we reverse the portion of the judgment fully reinstating Grimmett's law-enforcement certification.

In conclusion, we affirm the judgment insofar as it reversed the commission's order revoking Grimmett's law-enforcement certification. We reverse the judgment insofar as it ordered that Grimmett's law-enforcement certification be fully reinstated. We remand the cause to the trial court to enter an order requiring the commission to withdraw its revocation of Grimmett's law-enforcement certification and for other proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH INSTRUCTIONS.

Pittman, J., concurs.

Thompson, P.J., and Moore, J., concur in the result, without writings.

Thomas, J., recuses herself.

      In 2012, Act No. 2012-432, Ala. Acts 2012, repealed §§ 13A-8-100 through -103. The commission asserts that §§ 13A-8-110 through -119, Ala. Code 1975, now codify the offense of altering computer equipment.

      In the statement-of-facts section in its initial brief, the commission claims that the fact of the pardon was in the administrative record, but the commission also argues that information regarding the pardon was not in the administrative record. Regardless, a copy of the pardon is in the record.

      Section 41-22-20(l ) provides: "Unless the court affirms the decision of the agency, the court shall set out in writing, which writing shall become a part of the record, the reasons for its decision."

      It is further undisputed that Grimmett received a pardon for his conviction.

      Alabama Const. of 1901, Art. III, § 43, provides:
      "In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men."

      Accordingly, we pretermit discussion of the parties' arguments regarding whether Grimmett's criminal activity constituted moral turpitude.

      Judge Thomas participated in this case at oral argument. However, due to circumstances arising after oral argument, Judge Thomas has recused herself from further consideration of this appeal.


author: THOMAS, Judge.

text:
    Sharon OSBURN v. Michael OSBURN
    2160045
    Court of Civil Appeals of Alabama.
    May 5, 2017
    Gwendolyn Thomas-Kennedy, Montgomery, for appellant.
    J. Robert Faulk of McDowell, Faulk & McDowell, L.L.C., Prattville, for appellee.
   THOMAS, Judge.

Sharon Osburn appeals from a judgment entered by the Elmore Circuit Court on May 24, 2016. Before reaching the issues presented on appeal, this court must first determine whether it has jurisdiction over this appeal. "Jurisdictional matters are of such importance that a court may take notice of them ex mero motu." McMurphy v. East Bay Clothiers, 892 So.2d 395, 397 (Ala. Civ. App. 2004). "[T]he question whether a judgment is final is a jurisdictional question." Johnson v. Johnson, 835 So.2d 1032, 1034 (Ala. Civ. App. 2002).

In this case, the May 24, 2016, judgment did not dispose of issues regarding child custody. Specifically, the judgment reads: "[T]he issue[s] of child custody, child visitation[,] and child support remain[ ] and [are] reserved to this Court pending the recommendation[s] by the Guardian ad Litem and the report of Dr. K. Hollinger."

The May 24, 2016, judgment is not final because it did not determine all the rights or liabilities of the parties but, instead, reserved the issues of child custody and support pending the occurrence of a specific event, i.e., the receipt of certain recommendations. See Naylor v. Naylor, 981 So.2d 440, 441 (Ala. Civ. App. 2007) (citing Reid v. Reid, 844 So.2d 1212, 1213-15 (Ala. Civ. App. 2002) (holding a judgment that "reserved the issue of child support pending the mother's taking an examination ... to obtain her nursing license" to be nonfinal); and Tomlinson v. Tomlinson, 816 So.2d 57, 58 (Ala. Civ. App. 2001) (holding a judgment that stated that child support would be determined upon submission of CS-41 forms by the parties to be nonfinal)). Because a nonfinal judgment will not support an appeal, we must dismiss the appeal. See Reid, 844 So.2d at 1215.

APPEAL DISMISSED.

Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur.

      The parties are the legal guardians of a child.

      We have not overlooked the argument presented by Michael Osburn that, on February 22, 2017, more than four months after the notice of appeal was filed, the circuit court entered a purported final judgment. We note that, " '[o]nce an appeal is taken, the trial court loses jurisdiction to act except in matters entirely collateral to the appeal.' " Horton v. Horton, 822 So.2d 431, 434 (Ala. Civ. App. 2001) (quoting Ward v. Ullery, 412 So.2d 796, 797 (Ala. Civ. App. 1982) ). See also Pike v. Reed, 3 So.3d 201, 203 (Ala. Civ. App. 2008) (deeming an order entered after a notice of appeal from a nonfinal judgment had been filed to be a "nullity").


text:
    Isaac BRADLEY and Jeffrey Bradley v. Shannon SCOTT and Joanne Scott
    2160150
    Court of Civil Appeals of Alabama.
    May 5, 2017
    Robert C. King, Monroeville, for appellants.
    Anthony J. Bishop, Evergreen; and William Thomas Chapman II, Evergreen, for appellees.
   THOMAS, Judge.

Isaac Bradley and Jeffrey Bradley appeal a judgment of the Conecuh Circuit Court ("the trial court") in favor of Shannon Scott and Joanne Scott.

Background

On November 25, 2013, the Bradleys filed a complaint against the Scotts in the trial court. In their complaint, the Bradleys alleged that they owned a certain parcel of real property ("the Bradley parcel"), that Cedar Creek Land & Timber, Inc. ("Cedar Creek"), owned an adjacent parcel of real property ("the Cedar Creek parcel"), and that the Scotts owned a nearby parcel of property ("the Scott parcel"), across which the Bradleys, their predecessors in interest, and representatives of Cedar Creek had allegedly traveled "in excess of 30 years for access to their properties." In their complaint, the Bradleys further alleged that the Scotts had "wrongfully placed a locked gate blocking" an "open [and] defined roadway" that had allegedly been used to travel across the Scott parcel by the Bradleys, their predecessors in interest, representatives of Cedar Creek, and the public.

The Bradleys requested declaratory and injunctive relief, specifically asking that the trial court, among other things, "[e]nter an [o]rder which declares that the open, defined roadway that crosses [the Scott parcel] is a public roadway by prescription or[,] in the alternative[,] that the [Bradleys] have an easement by agreement, by prescription, by implication, by necessity[,] and/or by adverse possession." The Scotts answered the Bradleys' complaint, generally denying their allegations. Neither Conecuh County ("the county") nor Cedar Creek were ever made parties to the action.

In December 2015, the trial court conducted an ore tenus trial at which it received testimony from, among other witnesses, Keith Johnson, a Cedar Creek "reading manager" whose duties included management of the Cedar Creek parcel. Another Cedar Creek employee, Luke Mitchell, also testified; he stated that he was not responsible for managing the Cedar Creek parcel, but, he said, he had hunted on the Cedar Creek parcel under a lease. The evidence presented at trial established that the Cedar Creek parcel is situated between the Bradley parcel and the Scott parcel and that traveling to the Bradley parcel from the Scott parcel via the access road at issue requires crossing over the Cedar Creek parcel.

At the close of the Bradleys' case-in-chief, the Scotts moved for a judgment as a matter of law regarding the Bradleys' claim that an easement had been established by adverse possession, which the trial court granted. At the close of all the evidence, the trial court heard closing statements from the parties' attorneys, who had the following exchange:

"[The Scotts' attorney]: You also have in question here the fact that, you know, even if [the Bradleys] got access to come across [the Scott parcel,] what if one day Cedar Creek said no, you ain't coming across ours? What are you gonna do then?
"[The Bradleys' attorney]: Same case. Same facts.
"[The Scotts' attorney]: It very well may be, but it may require another court action. And so we submit that it just isn't-They just haven't proved their case is our position, Judge.
"[The trial court]: All right. I'll take it under advisement."

On October 4, 2016, the trial court entered a judgment, which provides, in relevant part:

"[The Bradleys] and [the Scotts] are owners of [p]roperty in Conecuh County, Alabama[,] which are in the same area [as] each other but do not share a common border. They are separated by [the] Cedar Creek [parcel.]
"[The Bradleys] are claiming an easement across the [Scott parcel] by means of original unity of ownership, by [the Bradleys'] open, visible and continuous travel across the [Scott parcel] for a number of years[,] and that access through [the Scott parcel] was reasonably necessary and indispensable.
"... [T]he original access was not a road across the [Scott parcel] but [was instead] a walking trail[.]
"... [T]he road was actually made in the last few years by Cedar Creek to access timber being cut on the [Cedar Creek parcel] and ... the access was strictly used for timber access and also did not extend through the [Cedar Creek parcel] and actually reach the [Bradley parcel]. The road ended in the middle of [the Cedar Creek parcel] and no road was cleared to [the Bradleys'] property line by Cedar Creek.
"... [T]here is at least one other avenue of access for [the Bradleys] to use in accessing [the Bradley parcel]. Said access is a longer travel but is fully a[cc]ess[i]ble. It is therefore ORDERED and ADJUDGED that the [Bradleys'] complaint for easement and right of way is hereby DENIED[,] and the Court finds in favor of the [Scotts]."

On October 28, 2016, the Bradleys filed a timely notice of appeal to the Alabama Supreme Court. The appeal was transferred to this court by the supreme court pursuant to § 12-2-7(6), Ala. Code 1975. On appeal, the Bradleys argue that the trial court's judgment should be reversed because, they say, the evidence presented at trial demonstrated that either an easement by implication or an easement by necessity had been established. We reverse the trial court's judgment and remand this cause for additional proceedings.

Analysis
"The absence of an indispensable party is a jurisdictional defect that renders the proceeding void. See Gilbert v. Nicholson, 845 So.2d 785, 790 (Ala. 2002). Although no party to this appeal has raised the issue of indispensable parties, the absence of an indispensable party can be raised for the first time on appeal by the appellate court ex mero motu, even if the parties failed to present the issue to the trial court. Id.
"Our supreme court has stated:
" 'Rule 19, Ala. R. Civ. P., provides for joinder of persons needed for just adjudication. Its purposes include the promotion of judicial efficiency and the final determination of litigation by including all parties directly interested in the controversy. Where the parties before the court adequately represent the absent parties' interests and the absent parties could easily intervene should they fear inadequate representation, no reason exists why the trial court could not grant meaningful relief to the parties before the court. Also, joinder of absent parties is not absolutely necessary where determination of the controversy will not result in a loss to the absent parties'
interest or where the action does not seek a judgment against them. ...
" '[The supreme court] has also held, however, that in cases where the final judgment will affect ownership of an interest in real property, all parties claiming an interest in the real property must be joined.'
" Byrd Cos. v. Smith, 591 So.2d 844, 846 (Ala. 1991) (citations omitted). See also Johnston v. White-Spunner, 342 So.2d 754 (Ala. 1977) (when a trial court is asked to determine property rights of property owners not before the court, the absent property owners are indispensable parties and any judgment entered in the absence of those parties is void)."

Allbritton v. Dawkins, 19 So.3d 241, 243-44 (Ala. Civ. App. 2009).

In Allbritton, Mark Allbritton and Kristie Allbritton sought a judgment declaring that a dirt road called "Allbritton Lane" that ran across property owned by the defendant, Robert Dawkins, Jr., was a public road or, alternatively, that an easement by prescription or by necessity existed in favor of the property on which they lived. Id. at 242. On appeal, we noted that the Allbrittons had no legal interest in any of the property at issue and that they were living with Mark's mother at the time the action was commenced. Id. at 243.

Additionally, we noted that

"other evidence established that, although Dawkins owns a portion of the property over which Allbritton Lane runs, he does not own the entire length of Allbritton Lane. Carl Allbritton, a third party who was not joined in this action, also owns a portion of the property over which Allbritton Lane runs. In traveling along Allbritton Lane in order to access the property owned by Mark's mother, the Allbrittons must pass across Carl Allbritton's property; moreover, to access his property, Dawkins also must pass across Carl Allbritton's property. However, Carl Allbritton was not made a party to the action; the Allbrittons named only Dawkins as a defendant."

Id. In applying the principles summarized above, we concluded that

"the Allbrittons requested that the trial court determine whether Allbritton Lane is a public or private road or, alternatively, to determine whether easements existed in favor of the property on which the Allbrittons live. Because any determination of those issues could impact the ownership interests in real property of Carl Allbritton, Mark's mother, and any other person owning an interest in property over which Allbritton Lane runs, those absent property owners are indispensable parties to this action. Byrd Cos. [v. Smith ], [591 So.2d 844 (Ala. 1991) ] ; and Johnston [v. White-Spunner ], [342 So.2d 754 (Ala. 1977) ]. The absence of the other affected property owners renders the trial court's judgment on those issues void."

Id. at 244. See also King v. King, 193 So.3d 733, 737 (Ala. Civ. App. 2015) (applying the principles articulated in Allbritton in a factually similar appeal and noting that " '[n]o way of necessity can be presumed or acquired over the land of a stranger' " (quoting Hamby v. Stepleton, 221 Ala. 536, 538, 130 So. 76, 77 (1930) )).

As in Allbritton, the evidence presented in this case established that the access road at issue runs across property owned by an entity that has not been made a party to this action, namely, Cedar Creek. The Bradley parcel and the Scott parcel do not share a common border; the Cedar Creek parcel separates them. Therefore, to access the Bradley parcel from the Scott parcel via the road at issue, the Bradleys must pass over the Cedar Creek parcel. Because any determination of the issue whether an access easement in favor of the Bradley parcel exists could impact Cedar Creek's interest in the Cedar Creek parcel, Cedar Creek is an indispensable party, and its absence from the action renders the trial court's judgment void. Furthermore, although Johnson and Mitchell, two Cedar Creek employees, testified at trial, that fact "does not negate the requirement that [Cedar Creek] be joined as a party to the action." Allbritton, 19 So.3d at 244 (citing Boles v. Autery, 554 So.2d 959, 961 (Ala. 1989) ("That a witness is present in court and testifies in the proceedings does not necessarily mean that the witness should not be joined as a party.")).

Additionally, it is unclear from the record whether the Bradleys have intentionally abandoned their alternative claim that the access road at issue is a public road; however, to the extent that they so allege, we note that "the county is an indispensable party to an action seeking to determine whether a road is public or private." Allbritton, 19 So.3d at 244 (citing Boles, 554 So.2d at 962, and § 23-1-80, Ala. Code 1975)("The county commissions of the several counties of this state have general superintendence of the public roads ... within their respective counties ...."). As already mentioned, the county was not joined as a party to this action; therefore, the trial court's judgment is void to the extent that it determined whether the access road at issue is a public road.

" 'The absence of a necessary and indispensable party necessitates the dismissal of the cause without prejudice or a reversal with directions to allow the cause to stand over for amendment.' J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834, 850-51 (Ala. 1981). See also Brewton v. Baker, 989 So.2d 1137, 1140 (Ala. Civ. App. 2008) (quoting and relying on J.C. Jacobs Banking Co., supra )."

Allbritton, 19 So.3d at 244. As in Allbritton, we reverse the judgment of the trial court and remand this cause to allow the joinder of all necessary and indispensable parties and for further proceedings consistent with this opinion. Id.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur.