author: THOMPSON, Presiding Judge.

text:
    Jennifer Farley SMITH v. ALABAMA DEPARTMENT OF LABOR and City of Pelham
    2150739
    Court of Civil Appeals of Alabama.
    December 9, 2016
    Leirin M. Ragan and Alicia K. Haynes of Haynes & Haynes, P.C., Birmingham, for appellant.

      Joseph S. Ammons, gen. counsel, and Donald M. Harrison III, asst. gen. counsel, for appellee Alabama Department of Labor.
    Prank C. Ellis, Jr., J. Bentley Owens III, and Grace Graham of Ellis, Head, Owens & Justice, Columbiana, for appellee City of Pelham.
   THOMPSON, Presiding Judge.

Jennifer Farley Smith appeals from a judgment of the Shelby Circuit Court (“the circuit court”) dismissing her appeal from a decision of the Alabama Department of Labor’s Board of Appeals (“the board of appeals”) on the ground that the circuit court lacked jurisdiction over the matter.

The record indicates the following. Smith began working as an administrative assistant for the City of Pelham (“the city”) on November 7, 2003. On October 1, 2015, Smith was discharged from her job with the city after an investigation' revealed that, during work hours with the city, she was using the city’s computer equipment and e-mail accounts to conduct business for her second job.

Smith applied for unemployment compensation with the Alabama Department of Labor (“ADOL”). On October 30, 2015, an ADOL examiner issued a notice of determination finding that Smith’s discharge from the city for the unauthorized use of city equipment constituted misconduct that disqualified her from receiving unemployment-compensation benefits for eight weeks and that warranted a reduction in the benefits she would be eligible to receive thereafter. Smith appealed the examiner’s decision, and an administrative-hearing officer conducted a hearing by telephone on December 14, 2015. On December 15, 2015, the hearing officer issued a decision in which he modified ADOL’s original determination and disqualified Smith from receiving any unemployment-compensation benefits in connection with the loss of her job with the city.

The hearing officer’s decision indicated that it was mailed to the parties and to Smith’s attorney on December 15, 2015. The decision also included the following language:

“APPEAL RIGHTS: This decision becomes final unless an application for leave to appeal to the Board of Appeals is received in writing at the Department address above or by fax at [the department’s telephone number] on or before the FINAL DATE OF December 30, 2015.”

(Emphasis and capitalization in the original.)

The parties agree that the board of appeals received Smith’s application to appeal on January 4, 2016. On January 8, 2016, the board of appeals entered a decision stating that, pursuant to § 25-4-92(c), Ala. Code 1975, because Smith had failed to file her application to appeal before the December 30, 2015, deadline, the board had “no statutory powers to affirm, modify, or set aside the decision of the [hearing officer] because it became final prior to the time your application for appeal was received.”

Smith appealed the board of appeals’ decision to the circuit court on January 29, 2016. On February 19, 2016, ADOL filed a motion to dismiss the appeal on the ground that her application to appeal to the board of appeals had been untimely. In response, Smith submitted an affidavit to the circuit court in which she stated that she had received the hearing officer’s decision on January 2, 2016. After a hearing, the circuit court found that it did not have jurisdiction over the matter and dismissed Smith’s appeal in a judgment entered on April 22, 2016. Smith then appealed to this court.

The only issue Smith raises on appeal is whether the circuit court correctly interpreted and applied the law governing appeals from administrative decisions of ADOL to find that the board of' appeals and, consequently, the circuit court did not have jurisdiction to consider her appeal from the hearing officer’s deéision. The propriety of the hearing officer’s decision is not before this court.

Ordinarily, when 'considering a motion to dismiss for failure to state a claim, if a trial court considers matters outside the pleadings, such as Smith’s affidavit, the motion to dismiss is converted to a motion for a summary judgment. See Price v. Alabama One Credit Union, [Ms. 2141012, June 17, 2016] — So. 3d -, - (Ala. Civ. App. 2016); and Drees v. Turner, 10 So.3d 601, 603 (Ala. Civ. App. 2008). However,

“[u]nlike a motion to dismiss pursuant to Rule 12(b)(6)[, Ala. R. Civ. P.,] for failure to state a claim, a trial court may consider evidentiary matters submitted on a motion to dismiss attacking jurisdiction. Hutchinson v. Miller, 962 So.2d 884, 886 n. 2 (Ala. Civ. App. 2007). Therefore, the judgment disposing of Smith’s appeal can be reviewed as a Rule 12(b)(1) dismissal based on the trial court’s lack of jurisdiction. We review such a judgment in this matter de novo, without a presumption of correctness. Hill v. Hill, 89 So.3d 116, 118 (Ala. Civ. App. 2010).”

Johnson v. Dunn, 216 So.3d 1217, 1223 (Ala. Civ. App. 2016).

Smith contends that the time in which she had to appeal is governed by § 25-4-91(d)(1), Ala. Code 1975, which provides:

“Unless any party to whom notice of determination is required to be given shall, within seven calendar days after delivery of such notice or within 15 calendar days after such notice was mailed to his last known address, file an appeal from such decision, such decision shall be deemed final.”

Smith argues that § 25—4—91 (d)(1) provides two “alternative” dates for filing an appeal to the board of appeals: 7 days from the date of delivery of the notice of the decision or, she says, 15 days from the date such notice was mailed. In this case, Smith says, "she filed her application to appeal the hearing officer’s decision within seven days of January 2, 2016—the date she says she received the hearing officer’s decision. Therefore, she contends, the circuit court erred in finding that her application to appeal was untimely.

We are not persuaded by Smith’s argument,

“ ‘Statutes are in pari materia where they deal with the samé subject. Kelly v. State, 273 Ala. 240, 139 So.2d 326 [ (1962) ]. Where statutes are in pari materia they should be construed together to ascertain the meaning and intent of each. City of Birmingham v. Southern Express Co., [164 Ala. 529, 538, 51 So. 159, 162-63 (1909)]. Where possible, statutes should be resolved in favor of each other to form one harmonious plan and give uniformity to the law. Waters v. City of Birmingham, 282 Ala. 104, 209 So.2d 388 [(1968)]; Walker County v. White, 248 Ala. 53, 26 So.2d 253 [ (1946) ].’
“League of Women Voters v. Renfro, 292 Ala. 128, 131, 290 So.2d 167, 169 (1974).”

Ex parte Alabama Bd. of Cosmetology & Barbering, 213 So.3d 587, 590 (Ala. Civ. App. 2016).

The statute Smith relies on, § 25-4-91, governs “[determinations and redetermi-nations upon claims for benefits.” Specifically, it governs determinations by the initial examiner, that is, the person who initially makes a decision regarding a claim filed for unemployment-compensation benefits. There is no dispute that Smith filed a timely appeal of the examiner’s decision and that the review of that decision was heard by the administrative-hearing officer.

Section 25-4-92, Ala. Code 1975, governs the next step in the process of a disputed claim for unemployment benefits. That statute provides:

“(a) To hear and decide disputed claims and other due process cases involving a division of the Department of Industrial Relations, the director shall appoint one or more impartial appeals tribunals, consisting in each instance of an officer or an employee of the Department of Industrial Relations. The appeals tribunals shall be a separate division reporting to the director and shall be separate and apart from the direction and control of other divisions of the Department of Industrial Relations. No person shall participate in the hearing or disposition of any claim upon appeal thereof as an appeals tribunal, if he has an interest therein. At any such hearing all testimony shall be taken down, but need not be transcribed unless an appeal is applied for or taken.
“(b) The manner in which disputed claims before appeals tribunals shall be presented and the conduct of hearings and appeals before appeals tribunals shall be in accordance with regulations prescribed by the director for determining the rights of the parties.
“(c) The decision of an appeals tribunal shall become final 15 days after notice of such decision has been mailed, postage prepaid, to the claimant and other parties to the proceedings, at,the addresses furnished, or, if none shall have been furnished, at their last known addresses, unless within that time application be made to the board of appeals for permission to appeal to the board of appeals.”

(Emphasis added.) As this court has previously stated: “The pertinent statute regarding the procedure to appeal the decision of an appeals referee to the Board is Code 1975, § 25-4-92(c) ....” Haigler v. Department of Indus. Relations, 512 So.2d 113, 114 (Ala. Civ. App. 1987). Section 25-4-94, Ala. Code 1975, governs the board of appeals, which may hear challenges to the decision of the hearing officer or, in the words of the statute, the “appeals tribunal.” That statute provides, in pertinent part:

“(a) The board of appeals for the Department of Industrial Relations, created by Section 25-2-12, may, on its own motion at any time before a decision of an appeals tribunal becomes final, affirm, modify, or set aside any such decision on the basis of the evidence previously submitted in such case, or direct the taking of additional evidence, or may permit any party in interest to initiate an appeal to it. The board of appeals may remove to itself or transfer to another appeals tribunal the proceedings on any claim pending before an appeals tribunal. The board of appeals shall promptly notify in writing the parties to any proceedings of its findings and decision, together with the reasons therefor.
“(b) Unless the application for appeal described in subsection (c) of Section 25-4-92 is granted by the board of appeals within 10 days after its filing with it, the applicant may, within the following 10 days, take an appeal from the decision of the appeals tribunal to the circuit court of the county of the residence of the claimant.”

§ 25-4-94(a) and (b), Ala. Code 1975 (emphasis added). Section 25-4-95, Ala. Code 1975, in turn governs appeals from decisions of the board of appeals to the circuit court for judicial review.

We conclude that, when the statutes are read in para materia, the time in which an application to appeal a decision of the hearing officer, i.e., the appeals tribunal, to the board of appeals must be within 15 days of when the notice of the hearing officer’s decision has been mailed. § 25-4-92(c). See also Haigler, supra.

We also find Smith’s assertion on appeal that the administrative rule and the statutes governing this matter are in conflict with ADOL regulations to be without merit. ADOL’s administrative code states: “A person applying for leave to appeal to the Board of Appeals from a decision of a hearing officer shall file the same within 15 days after notice of such decision shall have been mailed.” Rule 480-1-3-02(1), Ala. Admin. Code (ADOL). The time given to file an application to appeal as stated in the record is in accord with the time set forth in § 25^-92(c) and Rule 480-1-3-.02(1).

Moreover, even if § 25-4-91(d)(l) could be construed as being applicable in this case, in Olsen v. Moffat Road Veterinary Clinic, 441 So.2d 971 (Ala. Civ. App. 1983), this court, in dictum, rejected the rationale Smith is attempting to apply in support of her contention that she had seven days from the date she said she received the hearing officer’s decision in which to appeal. In Olsen, this court wrote:

“The legislature provided in •§ 25-4-91 that an interested party has seven days from the delivery of notice within which to appeal. It further provided that where notice is mailed, the interested party has fifteen days to appeal. It appears to this court that the extra days are allowed when the mail is used in order to give the interested party sufficient time to receive the notice of determination and perfect an appeal.”

441 So.2d at 974. Thus, we disagree with Smith’s reading of § 25-4-91(d)(l) that she had until the later of 7 days from the date she received the hearing officer’s decision, that is, the date it was “delivered” to her through the mail, or 15 days from the date the hearing officer’s decision was mailed in which to file her appeal.

The evidence is undisputed that the hearing officer mailed his decision to the parties on December 15, 2015. Pursuant to § 25-4-92(c), Rule 480-l-3-.02(l), and the language contained in the hearing officer’s decision itself, Smith had until Wednesday, December 30, 2015, to file her application to appeal the decision to the board of appeals. She failed to meet the deadline.

In Haigler, 512 So.2d at 114-15, this court wrote:

“The Department contends that the notice of appeal was not timely filed because it was not received by the Board within fifteen days after the decision of the appeals referee. We find meritorious the Department’s argument that the appeal procedure in this case is exclusive and Alabama’s unemployment compensation law does not contato a good cause exception based upon equity. Code 1975, § 25-4-96, provides:
“’The procedure provided in this article for the making of determinations with respect to claims for unemployment compensation benefits and for appealing from such determinations shall be exclusive.’ ”

Because Smith’s application to the board of appeals to appeal the hearing officer’s decision was untimely, the board of appeals did not have authority to consider her appeal. Consequently, the circuit court did not have authority to consider Smith’s appeal of the board of appeals’ decision, and it properly dismissed the appeal. State Dep’t of Labor v. Grayson, 141 So.3d 1081, 1083 (Ala. Civ. App. 2013).

For the reasons set forth above, the judgment of the circuit court dismissing Smith’s appeal from the decision of the board of appeals is affirmed. .

AFFIRMED.

Pittman, Thomas, Moore, and Donaldson, JJ'., concur.

      . In her brief on appeal, Smith states: "The parties agree that Ms, Smith received the Decision on Saturday, January 2, 2016.” However, in their briefs to this court, ADOL and the city state that they do not agree with Smith's statement, adding that they do .not know when she “actually put her hands on the Decision, nor is such information relevant for purposes of this appeal and in applying the applicable statutory law.” (The briefs submitted by ADOL and by the city are identical.) We have found no evidence in the record indicating that ADOL or the city agreed that Smith received the hearing officer's decision on January 2, 2016.


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    Terry W. FIELDS v. STATE DEPARTMENT OF HUMAN RESOURCES on Behalf of Renetta Fields
    2150799
    Court of Civil Appeals of Alabama.
    December 9, 2016
    Melvin Hasting, Cullman, for appellant.

      Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Jennifer M. Bush, asst. atty. gen., Department of Human Resources, for appellee.
   DONALDSON, Judge.

This appeal involves the right of a person whose wages are subject to a writ of garnishment to an opportunity to be heard to contest the writ. We hold that the person whose wages are subject to a writ of garnishment is entitled to be heard if a hearing is requested. See Robbins v. State ex rel. Priddy, 109 So.3d 1128, 1131 (Ala. Civ. App. 2012) (“Alabama’s garnishment statutes recognize that both the putative garnishee and the defendant are entitled to notice and an opportunity to appear as parties in interest entitled to assert their respective positions as to the plaintiffs garnishment claim.”).

Terry W. Fields (“the former husband”) and Renetta Fields (“the former wife”) were divorced by a judgment of the Jefferson Circuit Court (“the trial court”) in January 1993. Pursuant to the parties’ settlement agreement that was incorporated into the divorce judgment, the former husband agreed to pay $399 per month in support for the parties’ two minor children.

On November 9, 2015, a process-of-garnishment form was filed’ in the trial court under the case number assigned to the divorce proceedings. The record shows that the form was prepared by the State of Alabama Department of Human Resources (“DHR”), and it listed “State of Alabama, ex rel. Renetta Fields,” in thev space provided for the name of the plaintiff or person asserting the claim. In the space-provided for the designation of the attorney for the plaintiff, the name of a DHR attorney was listed. The address for DHR was also listed as the address for the plaintiff. The former husband was listed as the defendant. On the form, DHR identified the date of the judgment sought to be collected by the garnishment as July 21, 2015, and a purported judgment amount of $149,275.41. DHR included costs of $45,95 for a total amount claimed of $149,321.36.

The form contained a preprinted affidavit that states, in part: “I make oath that I have obtained the above judgment and believe the named garnishee is or will be indebted to the named defendant or has or will have effects of the defendant under the garnishee’s control.” An attorney for DHR signed the affidavit before a notary public.

The trial court issued a writ of garnishment, which was served on the former husband’s employer, Cullman Casting Corp. (“the garnishee”), on November 12, 2015. The former husband was served with notice of the garnishment on November 23, 2015. The notice form contained information notifying the former husband that he could file a claim of exemptions to the garnishment. On December 1, 2015, the garnishee filed its answer in the trial court in which it stated: “[Ojbligor is employed and garnishee will withhold from the salary, wages, or compensation, as required, and pay into court.”

On January 14, 2016, DHR filed a motion requesting the trial court to condemn the funds that had been withheld under the garnishment to that point and to enter an order directing that future garnished amounts be forwarded to the Alabama Child Support Payment Center. On January 15, 2016, the trial court entered an order granting DHR’s motion.

On January 26, 2016, the former husband filed a “motion to quash garnishment and motion for relief from judgment.” He described the motion as being filed under Rule 60, Ala. R. Civ. P. In the motion, the former husband asserted, among other things, that no action pertaining to the divorce judgment had been filed since the entry of the January 1993 judgment, that there had been no determination of any child-support arrearage or a judgment entered for the amount claimed, that he did not owe any child support, and that he had been denied due process of law by the issuance of the writ of garnishment without an underlying judgment to support the writ.

On February 1, 2016, the trial court entered an order purportedly granting the former husband’s motion to quash but also ordering that “[t]he garnishment be stayed and the Clerk of the Court is to hold all current funds received via the garnishment and shall not dispose of any funds pending further order of this Court.” The matter was set for a hearing on March 3, 2016. On April 20, 2016, the trial court entered an order that provided, among other things, that “the order to stay the garnishment is hereby set aside and held for naught” and that “the garnishment shall continue as previously ordered.”

On May 27, 2016, the former husband filed another motion, entitled “motion for relief from judgment,” seeking to have the trial court set aside its April 20, 2016, order and the writ of garnishment. In the motion, the former husband made the same factual assertions that he had made in his previous motion, but he also asserted that the former wife had failed to appear at the hearing on March 3, 2016, and that the trial court had continued the case in order to have the former wife appear at a future hearing. The record does not indicate that the trial court ruled on the former husband’s May 27, 2016, motion. The former husband filed a notice of appeal to this court on May 31, 2016. Assuming we have jurisdiction, see discussion, infra, appellate jurisdiction of this matter is appropriate in this court pursuant to § 12-3-10, Ala. Code 1975, because it is an appeal from a judgment entered in a domestic-relations case. See also § 6-6-464, Ala. Code 1975 (“An appeal [in garnishment proceedings] lies to the supreme court or the court of civil appeals, as the case may be, at the instance of the plaintiff, the defendant, the garnishee, or the contestant, or claimant.”).

We must first determine whether this court has jurisdiction to consider the former husband’s appeal. Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987) (“[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.”). The former husband filed two motions attacking the issuance of the writ of garnishment, which he claimed were filed pursuant to Rule 60, Ala. R. Civ. P. One motion was filed on January 26, 2016, and a second motion was filed on May 27, 2016. Although the trial court purportedly “granted” the former husband’s January 26, 2016, motion in its February 1, 2016, order, that order only temporarily stayed the garnishment until a hearing could be held on the motion. In its April 20, 2016, order, the trial court denied the former husband’s January 26, 2016, motion and dissolved the stay of the garnishment. The former husband thereafter filed a second motion attacking the writ of garnishment, but, according to the record, the trial court had not ruled on that motion at the time of the former husband’s May 31, 2016, notice of appeal.

The former husband’s January 26, 2016, motion contained the following arguments and requests for relief, among other requests:

“10) That the Defendant is being deprived of Due Process of law when a garnishment is issued by the Clerk and there is no judgment entered as alleged in the process of garnishment.
“11) The Defendant would request that this court set this matter for a hearing to determine if there is a judgment and the amount of the arrearages, if any that are owed by the Defendant.”

The former husband’s January 26, 2016, motion sought “relief from the garnishment issued by the Clerk on October 29, 2015.” In the January 26, 2016, motion, the former husband specifically requested a hearing to challenge the writ of garnishment by asserting that he did not owe the amounts being claimed and that there was no judgment to support the garnishment. It is not clear whether the mere issuance of the November 10, 2015, writ of garnishment is a final judgment to which a motion under Rule 60 could be directed. See Hallman v. Marion Corp., 411 So.2d 130, 132 (Ala. 1982)(“Interlocutory orders and judgments are ... not brought -within the restrictive provisions of Rule 60(b), Alabama Rules of Civil Procedure, which provides for relief from final judgments.”). Regardless of the pendency of the May 27, 2016, motion and regardless of whether the motions are properly analyzed under Rule 60, the April 20, 2016, order which denied the former husband’s January 26, 2016, motion to quash and ordered the garnishee to withhold wages from the former husband’s employment constituted a final, appealable judgment because it ‘eonelud[ed] the rights of the parties in respect to the cause of action involved.’ ” Robbins, 109 So.3d at 1132 (quoting Steiner Bros. v. First Nat’l Bank of Birmingham, 115 Ala. 379, 384, 22 So. 30, 31 (1897)(emphasis omitted)). Compare Edwards v. Edwards, 249 Ala. 350, 31 So.2d 69 (1947) (the denial of a motion to quash a garnishment would not support an appeal where the obligation of the garnishee to withhold wages was not established). Thus, the former husband timely filed his notice of appeal within 42 days of the entry of the April 20, 2016, final judgment. We now turn to the merits of the former husband’s appeal.

The former husband asserts that the issuance,of the writ of garnishment was improper because there was no supporting affidavit, pleading, exhibit, or other evidence to support a claim that the former husband owed a child-support arrear-age. Past-due installments of child support are money judgments, and a child-support obligee is not required to obtain a judgment of arrears from a court in order to proceed with garnishment. See Ex parte Morgan, 440 So.2d 1069, 1072 (Ala. 1983), and Moore v. Moore, 160 So.3d 325, 329 (Ala. Civ. App. 2014). “[T]he plaintiff or assignee in any judgment on which execution can issue may obtain process of garnishment ....”§ 6-6-390, Ala. Code 1975. Section 6-6-391, Ala. Code 1975, provides, in part, that '

“[t]o obtain [a] writ of garnishment, the plaintiff, his agent or attorney must make, before an officer authorized to administer oaths, and file, with the clerk of the court in which the action is pending or the judgment was entered, an affidavit stating the amount due from the defendant to the plaintiff, or his assignee, that process of garnishment is believed to be necessary to obtain satisfaction thereof and that the person to be summoned as garnishee is believed to be chargeable as garnishee in the case.”

The- affidavit in support of garnishment should be made by the real owner of the judgment. Jackson v. Shipman, 28 Ala. 488, 493 (1856). DHR asserts that it was able to execute the affidavit under its power to enforce child-support obligations. Section 38-10-3(a), Ala, Code 1975, enables DHR, among other things, to “operate child support programs as may be required under the provisions of Title IVD, including, but not limited to, ... establishing or modifying support orders [and] enforcing support obligations and related matters.” Section 38-10-7, Ala. Code 1975, further enables DHR to take action to collect unpaid child support; specifically, § 38-10-7(a) provides, in pertinent part:

“Whenever anyone owing the obligation of support has failed to provide support, and application is made to the department for support services as may be provided pursuant to the requirements of Title IV-D or for aid, the-department, and including the district attorney when providing services for the department, may take appropriate action under this article, or any other appropriate state and federal statutes, to assure that the .responsible person or persons owing the obligation of support provide support, including, but not limited to, civil or criminal actions to determine parentage or to establish, modify, or enforce support obligations.”

Accordingly, pursuant to DHR’s statutorily granted powers, DHR, acting as an agent of the former wife, had the authority to initiate the garnishment process and to have its representative sign the affidavit required by § 6-6-391.

The former husband also argues that he was denied due process because he was denied an opportunity to be heard on his defense to the claim that he owed past-due installments of child support. “Alabama’s garnishment statutes recognize that both the putative garnishee and the defendant are entitled to notice and an opportunity to appear as parties in interest entitled to assert their respective positions as to the plaintiffs garnishment claim.” Robbins, 109 So.3d at 1131. The record indicates that, although the trial court scheduled a hearing on the . former husband’s motion to quash the garnishment for March 3,2016, that hearing was continued to secure the former wife’s presence at the hearing. From the record before us, it appears that .the hearing, was not held. Therefore, the April 20, 2016, order reinstating the garnishment was entered without permitting the former: husband to be heard on his defenses to the writ of garnishment. Accordingly, the former husband was denied his right to be heard. Robbins, 109 So.3d at 1131. See also J & C Truck Driving Sch., Inc. v. Ingram, 166 So.3d 690, 693 (Ala. Civ. App. 2014) (holding that, pursuant to Rule 64B, Ala. R. Civ. P., a judgmént creditor was -entitled to a hearing ón its contest of a judgment debt- or’s claim of exemption). The April 20, 2016, judgment is reversed, and the cause is remanded with instructions to the trial court- to hold -a hearing at which the former husband may present his defenses to the writ of garnishment.

The former husband’s request for attorney fees on appeal is denied.

REVERSED AND ' REMANDED WITH INSTRUCTIONS.. ...

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

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

      . We note that "[a] trial court lacks jurisdiction to entertain a successive postjudgment motion requesting the same or similar relief as the original postjudgment motion or requesting reconsideration of the trial court's denial of the original postjudgment motion.” Green v. Green, 43 So.3d 1242, 1244 (Ala. Civ. App. 2009).

      . We observe that the writ of garnishment was actually issued on November 10, 2015.


text:
    Windham Todd PITTMAN, Rhonda Pittman, and Jonathan Pittman v. REGIONS BANK d/b/a Regions Mortgage
    2150455
    Court of Civil Appeals of Alabama.
    Dec. 2, 2016
    Kenneth James Lay of Hood & Lay LLC, Birmingham, for appellants.
    J. Marshall Gardner and J. Ben Segarra of Maynard, Cooper & Gale P.C., Mobile, for appellee.
   THOMPSON, Presiding Judge.

Windham Todd Pittman (“Windham”), Rhonda Pittman (“Rhonda”), and Jonathan Pittman (hereinafter referred to collectively as “the Pittmans”) appeal from a summary judgment entered in favor of Regions Bank, doing business as Regions Mortgage (“Regions”), in its ejectment action against the Pittmans. Specifically, Regions sought to recover possession of certain real property in Daleville (“the property’) that had been foreclosed upon and that was occupied by the Pittmans.

The evidentiary submissions the parties filed in support of and in opposition to Regions’ motion for a summary judgment indicate the following. Land Ventures for 2, LLC (“Land Ventures”)(which is not a party to this appeal), Windham, and Rhonda (hereinafter referred to collectively as “the borrowers”) obtained a $650,000 loan from Access Mortgage Corporation (“Access”) to purchase the property. On April 15, 2008, Windham, both as the managing member of Land Ventures and in his individual capacity, and Rhonda executed a promissory note, which was secured by a mortgage on the property. The mortgage was executed only by Windham as the managing member of Land Ventures. On June 29, 2009, Windham, again both as the managing member of Land Ventures and in his individual capacity, executed a loan-modification agreement. That agreement was among Land Ventures as the borrower, Regions as the lender or mortgage servicer, and Mortgage Electronic Registration Systems, Inc. (“MERS”), solely as the nominee for the “lender and lender’s successors and assigns,” as the mortgagee. On May 7, 2010, MERS, acting solely as nominee for Access, assigned the mortgage and the note to Regions.

It is undisputed that the borrowers failed to make the required monthly payments. Steven Purser, a vice president of Regions who serves as the manager of the “Real Estate Owned” Department, testified in his affidavit that Regions last received a payment from the borrowers on August 5, 2011. That payment had been due in April 2010, Purser said.

Windham submitted three affidavits at different times to oppose Regions’ motion for a summary judgment. In his affidavits, Windham testified that he did not receive proper notice of the default and that was he was not given an opportunity to cure the default. He also stated that he was not provided with proper notice of intent to accelerate, proper notice of acceleration, or proper notice of the foreclosure sale, which, he says, was required by law and by the mortgage contract. Windham also listed a number of other items that he says he should have received before foreclosure was proper. No documents from Regions to the borrowers indicating Regions’ intent to accelerate the note or to foreclose on the property are contained in the record before us.

In an affidavit, Windham also estimated that the property had a market value of approximately $658,000. In at least one of his affidavits, Windham said that his opinion was based on his knowledge of the neighborhood and the house, the corresponding values of similar properties in the neighborhood, and recent sales of similar properties. Windham testified that the property included six separate parcels that he described as “distinct” and not contiguous. One of the parcels included the Pitt-mans’ residence.

In his affidavits, Windham stated that he had asked Regions to sell the property in separate parcels rather than en masse. Windham opined that the property would have sold for more money if the individual parcels making up the property had been sold separately. He also said that, had the parcels been sold separately, he “could have potentially redeemed just the parcel where my family’s home is located.” Regions refused his request, Windham said.

Regions began foreclosure proceedings on the property in 2012. After publication of the appropriate notices in a Geneva County newspaper, the foreclosure sale was held on March 7, 2013. Purser testified that Regions submitted the highest and best bid of $367,500 and that the property was sold to Regions pursuant to the power-of-sale clause contained in the mortgage. The foreclosure deed, dated March 7, 2013, is included in the record. We note that the foreclosure deed includes the six parcels discussed in Windham’s affidavits. On March 7, 2013, attorneys for Regions sent a letter to Land Ventures, in care of Windham, demanding that the property be vacated within ten days. The Pittmans did not vacate at least the parcel on which their house was located, and Regions filed this ejectment action on October 28, 2014, seeking the Pittmans’ removal.

After a hearing on Regions’ motion for a summary judgment and after allowing the parties to file supplemental submissions, the trial court entered a summary judgment in favor of Regions on November 9, 2015. The Pittmans filed a timely motion to alter, amend, or vacate the judgment, which the trial court denied on January 14, 2016. The Pittmans appealed the judgment to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

On appeal, as they did before the trial court, the Pittmans raise a number of challenges to the validity of the underlying foreclosure. They assert that, in their evi-dentiary submission in opposition to Regions’ motion, they raised a number of factual questions that Regions failed to refute with evidence of its own. Therefore, the Pittmans argue, the trial court erred in entering a summary judgment in favor of Regions.

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala. 2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala. 2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala. 1989).”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala. 2004).

Regions filed its ejectment action against the Pittmans pursuant to,. § 6-6-280, Ala. Code 1975. That statute provides, in pertinent part, as follows:

“An action for the recovery of land or the possession thereof in the nature of an action in ejectment may be maintained without a statement of any lease or demise to the plaintiff or ouster by a casual or nominal ejector, and the complaint is sufficient if it alleges that the plaintiff was possessed of the premises or has the legal title thereto, properly designating or describing them, and that the defendant entered thereupon and unlawfully withholds and detains the same.”

§ 6-6-280(b). Therefore, to prevail on its motion for a summary judgment, Regions was required to present substantial evidence establishing that it had legal title to the property and that the Pittmans unlawfully remained on the property. Id. See also Turner v. Wells Fargo Bank, N.A., [Ms. 2150320, Sept. 30, 2016] — So.3d -, - (Ala. Civ. App. 2016).

The Pittmans assert numerous grounds that they say demonstrate that Regions did not have legal title to the property; thus, they say, the summary judgment entered for Regions in its ejectment action was improper. Among other reasons as to why they believe the foreclosure was improper, the Pittmans contend that Regions failed to provide them with proper notice of intent to accelerate the note and with proper notice of intent to foreclose, as required by Section 22 of the- mortgage. The Pittmans also contend that Regions was not a real party in interest because, they say, there was no evidence that Regions was a “holder” of the note. Additionally, they challenge Regions’ refusal to sell the property in separate parcels rather than en masse.

Regions contends that it is not required to provide a “full point-by-point rebuttal” of the Pittmans’ contentions challenging the foreclosure of the property because, it says, the Pittmans waived their right to challenge the foreclosure by not doing so in a timely manner. We agree with Regions that some of the many grounds the Pittmans assert for arguing that the foreclosure was improper cannot be used as defenses in this ejectment action, although not necessarily for the reasons Regions suggests. However, Regions’ argument is not .applicable to all the grounds the Pitt-mans raised in defense of this action.

“Not all irregularities in the foreclosure process, but only those irregularities that would render the foreclosure sale void, may be raised as affirmative defenses to an ejectment action.” Campbell v. Bank of America, N.A., 141 So.3d 492, 499 (Ala. Civ. App. 2012). In Campbell, this court explained:

“An ejectment action following a nonjudicial foreclosure ... is not a ‘foreclosure action,’ and-a defense in such an action asserting errors in the foreclosure process is a collateral attack on a -foreclosure. See Dewberry v. Bank of Standing Rock, 227 Ala. 484, 493, 150 So. 463, 470 (1933) (characterizing the action in Jones v. Hagler, 95 Ala. 529, 10 So. 345 (1891), in which the plaintiff sought possession. of certain property he had purchased from a trustee, who had sold the property pursuant to a power of sale in a deed of trust, and in which the defendant had asserted irregularities in the sale, as ‘a statutory action in the nature of ejectment—an. indirect or collateral attack upon the foreclosure of .real and personal property sold by a trustee, un: der the power [of sale in a deed of trust]’ (some emphasis in original; .some emphasis added)). Accord Pinkert v. Lamb, 215 Ark. 879, 883, 224 S.W.2d 15, 17 (1949) (stating that an ejectment action is a ‘collateral attack by appellees on the ... foreclosure decree.and sale ..., and the burden [is] on them to prove such defects therein as would render the sale and decree void’); Dime Sav. Bank, FSB v. Greene, 2002 PA Super 392, 813 A.2d 893, 895 (2002) (stating that ‘[a]n ejectment action is a proceeding collateral to that under which the land was sold’ and that, ‘where it is claimed that [an] underlying default judgment [in a judicial-foreclosure action] is merely voidable, that claim will not be entertained because such a judgment can not be reached collaterally’).
“In a direct attack on a foreclosure— that is, an action seeking declaratory and injunctive relief to halt the foreclosure sale before it occurs, see, e.g., Ferguson v. Commercial Bank, 578 So.2d 1234 (Ala. 1991); Bank of Red Bay v. King, 482 So.2d 274 (Ala. 1985); and Woods v. SunTrust Bank, 81 So.3d 357 (Ala. Civ. App. 2011), or an action to set aside the sale after it has occurred, see, e.g., Beal Bank, SSB v. Schilleci, 896 So.2d 395 (Ala. 2004); Kelly v. Carmichael, 217 Ala. 534, 536, 117 So. 67, 69 (1928); and Browning v. Palmer, 4 So.3d 524 (Ala. Civ. App. 2008)—any circumstance in the foreclosure process that would render the foreclosure sale void or voidable may be asserted. In a proceeding involving a collateral attack on a foreclosure, however, only those circumstances that would render the, foreclosure sale void may be raised as an affirmative defense.”

Campbell, 141 So.3d at 494.

In Campbell, after discussing generally the “types of flaws” that may occur in the foreclosure process, 141 So.3d at 495, this court discussed the circumstances under which a collateral attack of a foreclosure of real property can be used as an affirmative defense in an ejectment action in Alabama. Among the circumstances that .may render a foreclosure sale void, this court noted, were “(1) when the foreclosing entity does not have the legal right to exercise the power of sale, as, for éxample, when that entity is neither the assignee of the-mortgage ... nor the holder of the promissory note ... at the time it commences the foreclosure proceedings,” 141 So.3d at 495, or

“(2) when ‘the debt secured by the mortgage was fully paid prior to foreclosure,’ Lee v. Gaines, 244 Ala. 664, 666, 15 So.2d 330, 331 (1943); (3) when the foreclosing entity failed to give notice of the time and place of the foreclosure sale, Sanders v. Askew, 79 Ala. 433 (1885), but see Kelley Realty Co. v. McDavid, 211 Ala. 575, 577, 100 So. 872, 873-74 (1924) (stating that ‘a distinction must be made between cases where there is no sort of compliance with the requirement of advertisement or other notice of the sale, and cases where there is actually given some notice of the nature required, sufficient to give public information of the pendency and date of the sale, though it be ever so defective or incomplete,’ and that ‘[i]n the latter class of cases the foreclosure sale will not be void, but voidable only to the election of the mortgagor, properly and seasonably asserted’); and (4) when the purchase price paid is 1 “so inadequate as to shock the conscience, it may itself raise a presumption of fraud, trickery, unfairness, or culpable mismanagement, and therefore be sufficient ground for setting the sale aside,” ’ Hayden v. Smith, 216 Ala. 428, 430, 113 So. 293, 295 (1927).”

Campbell, 141 So.3d at 495-96.

In elaborating on the fourth ground, quoted above, for which a foreclosure may be rendered void, the Campbell court explained that in Berry v. Deutsche Bank National Trust Co., 57 So.3d 142 (Ala. Civ. App. 2010),

“a majority of this court reversed a summary judgment-in favor- of the mortgagee, holding that there was a genuine issue of material fact as to whether ‘the foreclosure sale was invalid on the ground that the price realized at the foreclosure sale was so low in relation to the market value of the property as to shock the conscience, which would constitute an affirmative defense to [the mortgagee’s] ejectment claim,’ 57 So.3d at 149. That holding is consistent with the general principle previously discussed that, if the purchase price is so inadequate as to shock the conscience and raise a presumption of fraud, the inadequacy is a' circumstance that' may render the foreclosure sale void in Alabama. See Hayden v. Smith, [216 Ala. 428, 113 So. 293 (1927) ].”

Campbell, 141 So.3d at 499.

Finally, the Campbell court discussed Hawkins v. LaSalle, Bank N.A., 24 So. 3d 1143 (Ala. Civ. App. 2009), overruled on another ground, Berry v. Deutsche Bank National Trust Co., 57 So.3d 142 (Ala. Civ. App. 2010), and recognized “a line of Alabama cases that appears, to point toward there being a fifth circumstance that will render a foreclosure sale void in Alabama: when an en masse sale injures the mortgagor and violates the mortgagee’s duty of fairness and good faith in executing the power of sale.” Campbell, 141 So.3d at 500. This court then concluded that the holdings in Berry and Hawkins were “consistent with the general principle that irregularities in the foreclosure process that would render the foreclosure sale void may be raised as affirmative defenses to an ejectment action.” Id.

Regions counters by arguing that the affirmative defense of an improper foreclosure is untimely if it is raised more than one year after the foreclosure sale. In support of that proposition, Regions cites Hawkins v. LaSalle Bank, supra. In that case, LaSalle Bank, N.A. (“LaSalle”), sought ejectment of Hawkins from property it had purchased as a result of a foreclosure sale. LaSalle was the holder of the mortgage at the time of the sale. 24 So.3d at 1144-45. LaSalle argued that the summary judgment entered in that case was due to be affirmed because Hawkins had failed to file a counterclaim or to attempt to redeem the subject property within the one-year redemption period set forth in § 6-5-252, Ala. Code 1975. Id. at 1152. As to this issue, this court wrote:

“The trial court rejected that argument, concluding that LaSalle was put on notice less than one year after the foreclosure sale that Hawkins was raising the defense that the foreclosure sale was improper, that Hawkins had amended his answer to specifically plead that defense, and that the amendment related back, pursuant to Rule 15(c), Ala. R. Civ. P., to the date of Hawkins’s original answer, filed on October 18, 2006. We agree with the trial court that that amendment related back to the date of the original answer.”

Id.

In Hawkins, this court rejected La-Salle’s contention that, pursuant to Muller v. Seeds, 919 So.2d 1174 (Ala. 2005), Hawkins could not prevail in LaSalle’s ejectment action against him because he had failed to file a counterclaim challenging the foreclosure sale. This court explained:

“Muller does not stand for the proposition that the invalidity of a foreclosure sale may be raised only in a counterclaim to an ejectment action. Muller merely held that when the invalidity of a foreclosure sale is raised only in a counterclaim, that counterclaim will not be considered a defense to the ejectment action. In this case, Hawkins specifically pleaded the invalidity of the foreclosure sale as a defense to the ejectment action. As such, under Muller, by presenting substantial evidence in support of that defense, Hawkins presented sufficient evidence to defeat LaSalle’s motion for a summary judgment.”

Hawkins, 24 So.3d at 1152-53.

In this ease, the Pittmans did not file a counterclaim or a separate action seeking to have the foreclosure set aside as invalid. However, they have challenged the validity of the foreclosure sale as a defense to Regions’ ejectment action. One of the elements Regions is required to prove to prevail in this action is that it had legal title to the property. See § 6-6-280(b). As a defense to Regions’ action, the Pittmans have asserted that Regions does not have legal title because the foreclosure sale was void. We find no authority to support the contention that such a defense to an ejectment action must be raised within a year of the foreclosure, as Regions argues. If the party seeking the ejectment of the possessor of property does not hold legal title to that property, it cannot prevail in its ejectment action. § 6-6—280(b); see also Turner, — So. 3d at -. Therefore, if the Pittmans presented substantial evidence tending to show that a genuine issue of material fact existed indicating that the foreclosure was void, the summary judgment would be improper.

The Pittmans have challenged the foreclosure on three of the grounds that will render a foreclosure sale void and could, therefore, serve as affirmative defenses to Regions’ ejectment action: (1) that Regions was not the assignee of the mortgage, (2) that Regions’ purchase price of the property was so inadequate as to shock the conscience and raise a presumption of fraud, and (3) that Regions’ sale of the property en masse rather than in discrete parcels injured the Pittmans and violated Regions’ duty of fairness and good faith in executing the power of sale.

In Campbell, supra, this court noted that there is

“a long line of Alabama cases (a) indicating that a sale in parcels or lots is desirable because it ‘ “opens a field to a greater number of bidders, is conducive to a better price, tends to prevent odious speculation upon the distress of the debtor, and enables him to redeem some of the property without being compelled to redeem it all,” ’ Hawkins, 24 So.3d at 1149 (quoting J.H. Morris, Inc. v. Indian Hills, Inc., 282 Ala. 443, 455, 212 So.2d 831, 843 (1968)), and (b) holding, for the most part, that an en masse sale that causes injury to the mortgagor violates tjie mortgagee’s duty of' fairness and good faith in executing the power of sale and is, therefore, sufficient to invalidate the sale and the foreclosure deed.”

141 So.3d at 499-500.

The rationale for the preference that discrete parcels of property be sold in separate sales rather than en masse was explained in Muller v. Seeds, 975 So.2d 914 (Ala. 2007):

“In Kelly v. Carmichael, 217 Ala. 534, 117 So. 67 (1928), this Court discussed the propriety of a foreclosure sale conducted en masse' when the property foreclosed is capable of being sold in separate parcels:
“ ‘The power of sale in a mortgage is not only a power [coupled] with an interest, but it is quickened with an element of trust, “and the donee of the power is charged as a quasi trustee with the duty of fairness and good faith in its execution, to the end that the mortgagor’s property may be disposed of to his pecuniary advantage in the satisfaction of his debt.”
“ ‘The reason of the rule requiring property covered by a mortgage or lien which is in “separate parcels, distinctly marked for separate and distinct enjoyment,” to be first offered for sale in parcels rather than en masse, is that a sale in parcels or lots opens a field to a greater number of bidders, is conducive to a better price, arid “tends to prevent odious speculation upon the distress of the debtor,” and enables him to redeem some of the property without being compelled to redeem it all.... And this rule applies “where the property covered by the mortgage is separated into several distinct lots, either by natural boundaries, by the way in which it is platted or laid out, or by the fact that the parcels are not contiguous,” (41 C.J. 973, § 1421), and inures to the benefit of a party who has acquired rights in subordination to the mortgage by a conveyance from the debtor (Brock et al. v. Berry, 132 Ala. 95, 31 So. 517, 90 Am.St.Rep. 896 [ (1901) ]).’
“Kelly, 217 Ala. at 537-38, 117 So. at 70-71. The Court elaborated on this rule in J.H. Morris, Inc. v. Indian Hills, Inc., 282 Ala. 443, 455, 212 So.2d 831, 843 (1968):
“‘When the mortgaged land consists of widely separated lots, some of which are dedicated to separate and distinct uses, and are sold by the mortgagee, at one time en masse, and by that means are caused to bring a sum much less than their real value, equity should avoid the sale and let the complainants in to exercise then-equity of redemption. A mortgagee is, in a sense, a trustee for the mortgagor, and, in exercising the power of sale contained in the mortgage, the mortgagee must not disregard the rights of the mortgagor. The rule requiring that separate parcels be offered for sale separately arises out of the reasonable presumption, sanctioned by observation and experience, that property in distinct parcels, distinctly marked for separate and distinct enjoyment, will produce more when sold in parcels because the sale is thus accommodated to the probable wants of the purchasers. Of course, if such property is sold en masse and brings a fair price, the mortgagor will not be heard to complain. When a sale and purchase en masse are had under the power of sale contained in a mortgage, the mortgagor, if the purchaser acquires the property at a sum disproportionate to its real value, may, by seasonable action, have the sale annulled. Dozier v. Farrior, 187 Ala. 181, 65 So. 364 [ (1914) ].’ ”

Muller, 975 So.2d at 918-19.

In this case, it is undisputed that the property comprised six distinct, parcels and that the parcels were sold en masse. Regions’ single foreclosure deed includes each of the separate parcels in the description of the property purchased at the foreclosure sale. The parcels are not contiguous. In opposition to. the summary-judgment motion, the Pittmans submitted Windham’s affidavits, in at least, two of which he testified that 'the six parcels are not contiguous, are not related, and are taxed separately. The Pittmans’ residence is situated on one of the parcels. Windham testified that he made repeated requests of Regions that the parcels be sold separately. He said that he made the requests “because [he] knew that it would be easier to sell the property separately instead of together and that each parcel might fetch a better price individually than if the parcels were sold together.” ’ In one of his affidavits, Windham testified that he also asked Regions to sell the parcels separately

“so that [he] could later potentially redeem just the property with the home and not the other parcels of property which are vacant lots. I knew my ability to redeem just the parcel with the home would be something I could do after the foreclosure sale. However, by selling all of the properties at one sale, [Regions] inhibited my ability to keep the home or redeem it. This prevented me from redeeming the home; as I would have to redeem all of the property since it was all included in one sale. This clearly injured me and my family and hampered my ability to redeem the property where my home is .located.”

Regions did not submit any evidence to the trial court to refute Windham’s testimony.

We conclude that the Pittmans presented substantial evidence indicating that Regions ' refused their request to sell the property in separate parcels and that they were injured when the property was sold en masse. Therefore, there is a genuine issue of material fact as to whether Regions violated its duty of fairness and good faith in executing the power of sale, which would render the foreclosure void. Campbell, 141 So.3d at 500. Accordingly, the Pittmans have demonstrated that a genuine issue of material fact exists as to whether Regions had lawful title to the property when it sought to eject the Pitt-mans from the property.

Because there was a genuine issue of material fact before the trial court as to the validity of the foreclosure sale, and because voiding of the foreclosure sale would necessarily defeat Regions’ ejectment action, we reverse the trial court’s summary judgment in favor of Regions, and we remand the cause for further proceedings. We pretermit discussion of the other grounds for reversal raised by the Pittmans on appeal,

REVERSED AND REMANDED.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.


author: PER CURIAM.

text:
    Harold HOLT v. LIMESTONE COUNTY DEPARTMENT OF HUMAN RESOURCES
    2150851
    Court of Civil Appeals of Alabama.
    Dec. 9, 2016
    Harold Holt, pro se.
    . Luther Strange, atty. gen.,- and Sharon E. Fiequette, gen. counsel, and Jennifer M. Bush, asst. atty. gen., Department of Human Resources, for appellee Limestone County Department of Human Resources.
   PER CURIAM.

In April 2016, Harold Holt, an inmate in the state correctional system acting pro se, brought an action against the Limestone County Department of Human -Resourc.es (“the Limestone County DHR”), asserting that that agency had .unlawfully subjected him to a duty to pay child support with respect to. a child who had since reached adulthood but who, Holt said, was not his natural child; he sought an award of “every cent that [Limestone County DHR] ha[d] obtained” from him. In response to the filing of Holt’s complaint, an attorney representing the Limestone County DHR filed a notice of appearance and a motion to dismiss the complaint, asserting, among other things, that the Limestone County DHR is a state agency not subject to suit, that the relief sought by Holt was time-barred, that Holt’s complaint failed to state a cause of action under Alabama law, and that service of process was insufficient because Holt had failed to serve the head of the State Department of Human Resources and the attorney general. The motion to dismiss was electronically filed in the trial court on May 27, 2016, and bears the following certificate of service:

“I hereby certify that I have filed the foregoing document with the Clerk of Court using the Alabama Judicial System electronic filing system which will send notification of such filing to those parties of record who are registered for electronic filing, and I further certify that those parties of record who are not registered for electronic filing[] have been served by mail by depositing a copy of the same in the United States mail, first class postage prepaid and properly addressed.
“This the 27th day of May, 2016.
“[signature of counsel]”

Notably, Holt’s name and address were not listed in that certificate of service, although the second paragraph of Rule 5(d), Ala. R. Civ. P., requires that “[a] certificate of service shall list the names and addresses ... of all ... pro se parties upon whom the paper has been served.”

The case-action-summary sheet in the record indicates that on June 9, 2016, an order was rendered and entered by the trial court on the motion to dismiss. Although the text of that order is not contained in the record, a motion filed by Holt on June 20, 2016, requesting leave to file “additional pleadings” makes clear that that order had set the motion to dismiss for a hearing on June 28, 2016, at 11:45 a.m. In his motion of June 20, 2016, Holt specifically averred that the Limestone County DHR had “failed to provide [him] service of [the] motion” to dismiss or the grounds therefor and that, as a result, he was “being denied due process and being prejudiced because he [had no] idea of what [the] motion [to dismiss] consisted] of so that he [could] prepare to defend his lawsuit”; he requested, in effect, that the motion to dismiss be struck and that he be provided copies of filings made by the Limestone County DHR. On June 27, 2016, Holt sought to amend his complaint so as to seek costs of court and $100,000 in damages in addition to the recovery of child support he had previously paid, and, thereafter, he moved for an order requiring that he be transported so that he could appear at the hearing before the trial court.

On June 30, 2016, the trial court entered an order denying Holt’s motion for transport. On July 1, the trial court entered an order granting the motion to file additional pleadings, but it set aside that order by a separate order entered on the same day. Finally, on July 1, the trial court entered an order noting that it had held a hearing on the motion to dismiss on June 28; stating that counsel for the Limestone County DHR had appeared at that hearing but that Holt had not appeared in person or through counsel; and ruling that the motion to dismiss was due to be granted and that the case was dismissed with prejudice. Holt appealed to the Alabama Supreme Court; his appeal was transferred to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

The sole issue raised by Holt on appeal' concerns whether the trial court’s order granting the motion to dismiss denied him due process because, he says, he was not served with that motion. The Limestone County DHR, while primarily arguing the substantive grounds asserted in its motion to dismiss, points to its reference in the motion’s certifícate of service to having served parties “not registered for electronic service” by first-class mail, to which Holt responds in his reply brief that that certificate does not specify his name and address.

In our relatively recent case of Morris v. Glenn, 154 So.3d 1055 (Ala. Civ. App. 2014), this court considered a similar due-process challenge to a judgment of dismissal entered notwithstanding the absence of a certificate of service in compliance with Rule 5, Ala. R. Civ. P. In Morris, an attorney, who was the defendant in a legal-services-liability action filed by his former client, an inmate in the state correctional system, filed, among other things, two motions to dismiss the action, neither of which bore a certificate of service upon the inmate. After the trial court had granted the second of those motions, the inmate filed a post-judgment motion asserting that he had not been properly served with that motion to dismiss, but the trial court denied his postjudgment motion. On appeal, the inmate asserted that, because he had never received service of the second motion to dismiss, the trial court’s judgment was due to be reversed because it had been entered in a manner inconsistent with due-process principles. Our reasoning and our conclusion in that case are equally pertinent here:

“In Ex parte Weeks, 611 So.2d 259 (Ala. 1992), our supreme court explained:
“ ‘Procedural due process, as guaranteed by the Fourteenth Amendment to the United States Constitutioh and Article I, § 6, of the Alabama Constitution of 1901, broadly speaking, contemplates the rudimentary requirements of fair play, which include a fair and open hearing before a legally constituted court or other authority, with notice and the opportunity to present evidence and argument, representation by counsel, if desired, and information as to the claims of the opposing party, with reasonable opportunity to controvert them.’
611 So.2d at 261. The right to be heard and to present objections ‘has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.’ Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed.2d 865 (1950).
“To satisfy constitutional standards, notice must be ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ Id. Notice must also be ‘of such nature as reasonably to convey the required information,’ and ‘it must afford a reasonable time for those interested to make their appearance.’ Id. Whether the notice be ‘ “that an action has commenced or that the moving party has added a new or additional claim for relief ..., the need for notice is the same.” ’ Austin v. Austin, [159 So.3d 753, 758] (Ala. Civ. App. 2013) (quoting Varnes v. Local 91, Glass Bottle Blowers Ass’n of United States & Canada, 674 F.2d 1365, 1368 (11th Cir. 1982)).
“Service of written notice is ‘the classic form of notice’ and is ‘always adequate in any type of proceeding.’ Mullane, 339 U.S. at 313. Rule 5(a), Ala. R. Civ. P., provides that ‘every written motion other than one which may be heard ex parte, and every written notice, ... shall be served-upon each of the parties’ unless the rules provide otherwise. We note that Rule 5(d), Ala. R, Civ. P., requires a certificate of service to be included on ‘[a]ll papers after the complaint required to be served upon a party’ and that the ‘certificate of service shall list the names and addresses, including the e-mail addresses of registered electronic-filing-system users, if known, of all attorneys or pro se parties upon whom the paper has been served.’
“In Woodruff v. City of Tuscaloosa, 101 So.3d 749 (Ala. 2012), our supreme court stated:
“ ‘[D]ue-process requirements could prevent a trial court from ruling on a motion that had not been properly served in accordance with Rule 5, even though personal jurisdiction over the parties had been established. See, e.g., Neal v. Neal, 856 So.2d 766, 782 (Ala. 2002) (stating that a person already made a party to litigation could, “on some critical motion or for some critical proceeding within that litigation,” be deprived of the due process required by the Fourteenth Amendment to' the 'United States Constitution if he or she is not provided with “notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing”).’ ' " :
101 So.3d at 752. Thus, the failure to serve a motion in accordance with Rule' 5 might result in a violation of an opposing party’s due-process rights and can render a judgment entered pursuant to the motion void. See Pirtek USA, LLC v. Whitehead, 51 So.3d 291, 295 (Ala. 2010) (quoting Orix Fin. Servs., Inc. v. Murphy, 9 So.3d 1241, 1244 (Ala. 2008), quoting in turn Ins. Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala. 1991)) (‘ “ ‘A judgment is void ... if the court rendering it .... acted-in a manner inconsistent with due process.’ ” ’).
“Our ■ supreme court has recognized that the failure to serve a motion or other paper in compliance with Rule 5(a) will not always result in a due-process violation. See Woodruff, 101 So.3d at 752-53 (holding that the trial court did not violate due process in considering the defendant’s motion to dismiss because the defendant had corrected its error in not serving its motion to dismiss on the plaintiff and because the plaintiff had received adequate time to consider and respond to the arguments made in the motion). But, in this' case, we hold that [the inmate] has been deprived of due process.
“The trial court considered [the attorney's May 10, 2013, motion to dismiss without any notice being provided to [the inmate], and it dismissed the action on the ground alleged in [the atto'rney]’s motion without affording [the inmate] an opportunity to respond. Because [the attorney^ May. 10 motion had not been properly served in accordance with Rule 5 and because the record does not indicate that [the inmate] was provided with notice of [the attorney]’s motion, principles of due process required the trial court to refrain from ruling on the motion. We conclude that the judgment dismissing the action is void because it is inconsistent with due process. See Pirtek USA, LLC, supra.
“[The inmate]’s claim might lack merit, but the process followed in this case does not permit the claim to be dismissed under the existing circumstances. We, therefore, reverse the trial court’s judgment and remand the cause to the trial court.”

154 So.3d at 1057-59.

The record in this case indicates a similar denial of proper service of a motion to dismiss and of an absence of meaningful notice of the grounds stated in a defendant’s motion. Although the record in this case indicates that the Limestone County DHR’s motion to dismiss differed from the motions to dismiss filed in Morris because the Limestone County DHR did include some form of certificate of service, that certificate did not comply with Rule 5(d), Ala. R. Civ. P., which, as we noted in Morris, mandates that a party who files any paper after the initial complaint must specifically identify the intended recipients of service of that paper by listing each recipient’s name and address in the required certificate of service. Here, the Limestone County DHR’s assertion that it did serve Holt despite not having listed him in the certificate of service was refuted by Holt’s June 20, 2016, filing in which he denied receipt of the motion to dismiss and asserted a denial of due process thereby even though he acknowledged in that filing that he had received notice from the trial court that that court had scheduled a hearing on that motion. Notwithstanding Holt’s incarcerated status; his assertions in his June 20, 2016, filing that he had no effective means of countering the stated grounds for dismissal without being provided a copy of the motion that had asserted them; and the absence of any other filing on Holt’s part making a substantive response to the grounds asserted by the Limestone County DHR in its motion to dismiss, the trial court entered an order dismissing the complaint “with prejudice,” which amounts to an adjudication on the merits so as to bar Holt from ever maintaining his claim, see Calhoun v. Pennsylvania Nat’l Mut. Cas. Ins. Co., 676 So.2d 1332, 1334 (Ala. Civ. App. 1996). Under the circumstances of this case, we conclude that our holding in Morris with regard to due process precludes our affirmance of the trial court’s judgment of dismissal.

Based upon the foregoing facts and authorities, the judgment of dismissal with prejudice entered by the trial court in favor of the Limestone County DHR is reversed, and the cause is remanded with instructions that Holt be effectively served with a copy of the motion to dismiss and be afforded an opportunity to respond to the substantive and procedural arguments asserted by the Limestone County DHR in that motion. Our reversal in no way should be interpreted as commenting upon the merits of the Limestone County DHR’s grounds for seeking dismissal of the complaint in this case, nor as stating any view of the potential availability to Holt of any bases upon which he may properly seek to resist that motion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

All the judges concur.

      . Holt’s invocation of Rule 25, Ala. R. App. P., in support of his argument is unavailing because the Rules of Appellate Procedure do not apply to courts other than this court, our supreme court, and the Court of Criminal Appeals (see Rule 1, Ala. R. App. P.).


author: MOORE, Judge.

text:
    H.B. v. J.N. and C.N.
    2150884
    Court of Civil Appeals of Alabama.
    Dec. 9, 2016

      S. Edward Coey, Hanceville, for appellant.
    Submitted on appellant’s brief only.
   MOORE, Judge.

H.B. (“the mother”) timely appeals from a judgment entered by the Cullman Juvenile Court (“the juvenile court”) terminating her parental rights to Ca.N. (“the child”) and awarding the sole physical and legal custody of the child to J.N., the child’s paternal grandfather, and C.N., the child’s paternal stepgrandmother, who are hereinafter referred to collectively as “the paternal grandparents. We affirm the juvenile court’s judgment.

The judgment at issue provides, in pertinent part:

“1. [The child] was bom on October 8, 2012 to [the mother] and [Z.N. (‘the father’) ]. ;
“4. [The child] was declared depen-dant [sic] after having been born positive for methadone, resulting from [the mother]’s use. After treatment at Children's] Hospital in Birmingham, Alabama, the child was allowed to go home with [the mother] for one night, but the [Cullman County] Department of Human Resources [(‘DHR’)] obtained a required safety plan which placed the child and mother in the home of. [the paternal grandparents] ....
“[5]. [The mother] subsequently plefaded] ‘Guilty’ to charges of Child Endangerment. In addition, the evidence showed that [the mother] had lost custody of an older child whose whereabouts are as yet unknown by [the mother],
“[6]. [S.F. (‘the paternal grandmother’) ] shared custody of the child, along with [the paternal grandparents,] with physical possession alternating between the two homes virtually since his birth. Clearly all three grandparents love this child deeply.
“[7], Each of the parents, however, have made scant, if any progress toward rehabilitating themselves as necessary to regain custody of [the child]. The hearing in this matter has been scheduled for weeks, yet when requested by the Court to submit to a drug screen, the father refused—a tantamount admission that he would not pass such a screen. The mother did submit, but her screen showed her continued use of methadone, the drug which was the precipitating cause of the child’s dependency determination. [The mother] 'testified to more than one effort to discontinue such drug, but has not done so. In addition, she has otherwise failed to adjust her circumstances in order to parent [the child]..
“[8]. The father , spent several months in the State Penitentiary, has not maintained employment, and appears to still be using illegal drugs. In addition, he and [the mother] clearly intend to remain together, a fact which does not reassure the Court. Their relationship and conduct as a parental unit shows a continuing unwillingness to adjust their circumstances to meet the needs of [the child].
“[9]. Therefore, the Court does find, from clear and convincing evidence^] that [the child] is dependent and in need of care and protection such that the parental rights of [the mother] and [the father] should be terminated.
' “[10]. The Court must determine whether a viable alternative exists which would make termination unnecessary. The Court finds no such alternative.
'' “[11]. The mother and [the father] were directed to have only strictly supervised visitation, but evidence convinces the Court that [the paternal grandmother] has not been compliant either with the letter or spirit of such condition. Evidence reveals that she allowed significant contact between [the mother, the father, and the child] and apparently facilitated the child’s knowledge of his parents’.residence, schedule, pictures and phone contact—all in contravention of the Court’s prior Orders. ■.Thus, the Court finds, by clear and convincing evidence, that continued .placement with [the paternal grandmother] is not a viable alternative to termination of parental rights.
“[12]. [The paternal grandparents], on the other hand, have provided a stable, loving home for [the child] , and sought out any therapy, treatment or other helpful assistance in securing his welfare. The disruptive nature of the parties’ current schedule is, in the Court’s opinion, no longer in the child’s best interests. [The paternal grandparents] have, in the past, pursuant to Court Order, attempted to provide opportunities for the parents to rehabilitate themselves, provided a home in which the parent-child relationship could be maintained in hopes of reunification. Such efforts have not been met with any meaningful cooperation by either parent.
Therefore, the Court finds, from clear and convincing evidence^] that no reasonable viable alternative exists save and except termination of parental rights of both parents.”

The judgment terminated the parental rights of the mother and the father and awarded sole legal and physical custody of the child to the paternal grandparents.

On appeal, the mother argues solely that the juvenile court erred in terminating her parental rights because, she says, “parental rights cannot be terminated where viable alternatives to termination exist, the existence of viable relative resources being one such alternative.” Specifically, the mother maintains that, as a matter of law, a juvenile court cannot terminate parental rights when the-child at issue can be placed into the custody of fit and willing relatives, such as the paternal grandparents in this case. .The mother argued this point to the juvenile court in a motion to dismiss at the opening of the trial, in a motion for a judgment on partial findings at the close of the presentation of the evidence by the paternal grandparents, which was renewed at the end of the trial, and again in a rnotion to alter, amend, or vacate the judgment. The juvenile court rejected the argument on all occasions. Because that argument raises a pure question of law, we review the judgment of the juvenile court de novo without a presumption of correctness. See S.G. v. Barbour Cty. Dep’t of Human Res., 148 So.3d 439, 444 (Ala. Civ. App. 2013).

A natural'parent has a fundamental right to the custody of his or her child, which right may not' be severed by state-government interference without due process as mandated by the Fourteenth Amendment to the United States Constitution. See Ex parte Beasley, 564 So.2d 950, 953-54 (Ala. 1990). As a matter of substantive due process, a state can terminate parental, rights only in order to protect a child from parental abuse, neglect, or other harm, and only when less drastic measures would be unavailing. See Hunley v. Houston Cty. Dep’t of Pensions & Sec., 365 So.2d 81, 84 n.1 (Ala. Civ. App. 1978) (applying reasoning of Roe v. Conn, 417 F.Supp. 769, 779-80 (M.D. Ala. 1976)). Based on that reasoning, our supreme court has declared that a juvenile court should not terminate parental rights when a viable alternative exists. See Ex parte Beasley, 564 So.2d at 955. In Ex parte Ogle, 516 So.2d 243, 243 (Ala. 1987), our supreme court held that, when it is in the best interests of the child, placement with a suitable relative can constitute a viable alternative to termination of parental rights. However, the mere feasibility of relative placement does not ipso facto prevent termination of parental rights under Alabama law.

In Miller v. Alabama Department of Pensions & Security, 374 So.2d 1370 (Ala. Civ. App. 1979), this court held that a juvenile court should exhaust every available means to protect a child before permanently removing the child from his or her parents’ custody.

“For example, á court would certainly consider returning the child to parental custody on a trial basis subject to certain definite conditions being met and subject to supervision by DPS [Department of .Pensions and Security] workers or other trained personnel; or temporary custody in a foster home with specific visitation with the child and conduct requirements to be met by parents; or that the parents are to be deprived of custody temporarily pending a correction of deficiencies in the home environment that were having or would have a harmful éffect on the child should the child be placed back in the family relationship.”

374 So.2d at 1374. In D.M.P. v. State Department of Human Resources, 871 So.2d 77, 91 (Ala. Civ. App. 2003) (authored by Murdock, J., with Crawley, J., concurring and Yates, P.J., and Thompson and Pittman, JJ., concurring in the result), Judge Murdock explained that, consistent with Miller, a juvenile court cannot terminate a parent’s parental rights if a temporary alternative custodial arrangement can safeguard the child while the parent undergoes rehabilitation toward family reunification. However, once it becomes clear that an unfit parent cannot or will not reform and that continued rehabilitation efforts will not result in family reunification in the foreseeable future, a juvenile court may terminate parental rights in order to provide a child a permanent alternative custodial arrangement if doing so would be in the best interests of the child.

“In other words, once ‘the interests of the child and the natural parents ... diverge’ because of irremediable parental unfitness, the rationale for the legal presumption that custody in the natural parent is in the best interest of the child no longer exists.. At that juncture, the State may proceed, unaffected by a par rental presumption, to determine simply what disposition of the child would then be in his or her best interest. The possibility of some custodial arrangement that would be a suitable alternative to the termination of parental rights no longer constitutes an absolute bar to termination.” ■

D.M.P., 871 So.2d at 94 (quoting Santosky v. Kramer, 455 U.S. 745 at 760, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)) (emphasis added).

In A.E.T. v. Limestone County Department of Human Resources, 49 So.3d 1212, 1219 (Ala. Civ. App. 2010), a majority of this court adopted the reasoning of Judge Murdock as set forth in D.M.P. In A.E.T., the father, a convicted murderer serving a 99-year sentence, proffered D.M. as a suitable relative to assume custody of the child. Home studies revealed that D.M. was, in fact, a fit and willing relative and a viable placement for the child. Based on that undisputed evidence, this court framed the issue bn appeal as “whether the existence of D.M. as a potentially viable placement alternative prevented] the termination of the father’s parental rights.” 49 So.3d at 1217. Relying extensively on D.M.P., this court concluded in A.E.T. that, when family reunification is not reasonably foreseeable, the mere existence of a viable custodial placement alternative “would not, in and of itself, prevent [a] juvenile court from terminating [a parent’s] parental rights .... ” 49 So.3d at 1219. Under A.E.T., a juvenile court may terminate parental rights if the juvenile court determines that viable options to termination do not serve the best interests of the child.

Although A.E.T. involved an incarcerated parent, in A.F. v. Madison County Department of Human Resources, 58 So.3d 205 (Ala. Civ. App. 2010), this court extended the holding in A.E.T. to apply equally to a mother who had “failed- to adjust her circumstances and resolve her substance-abuse problem over a four-year period.” 58 So.3d at 214. In A.F., the mother at issue in that case argued that her parental rights could not be terminated because the half brother of the father of the child and the wife of the half brother had not been excluded as potential custodians for the child by the Madison County Department of Human Resources and because the juvenile court had commented, after terminating the mother’s parental rights, that it would consider placing the child with those relatives. This court reasoned in A.F. that, once the juvenile court had determined that the mother was not likely to overcome her drug addiction so as to be in a position to safely assume custody of the child within the foreseeable future, the juvenile court “was no longer required to consider whether a viable placement alternative existed before terminating the mother’s parental rights.” Id. at 215. Thus, this court held, the mere fact that the child could possibly be placed with relatives did not prevent the juvenile court from entering a judgment terminating the parental rights of the mother to the child.

This case differs from A.E.T. and A.F, because, in this case, the juvenile court actually awarded the paternal grandparents sole custody of the child, coincidentally with its judgment terminating the mother’s parental xdghts. The same analysis applies, however. The mere fact that the juvenile court concluded that the paternal grandparents could provide the child a safe and proper home did not, in and of itself, bar the juvenile court from terminating the mother’s parental rights. In its judgment, the juvenile court found that the child originally had been placed with the paternal grandparents for the purpose of facilitating the rehabilitation of the mother but that the mother had not meaningfully cooperated by adjusting her circumstances to meet the needs of the child. The juvenile court further determined that, at the time of the trial and despite the passing of nearly four years, the mother remained in the same condition and in the same circumstances that had led to the original separation of the family unit and that her condition and circumstances would not likely change in the foreseeable future. Based on those findings, which are not contested by the mother, the juvenile court, in acting for the best interests of the child, could lawfully terminate the parental rights of the mother, despite its other finding that the paternal grandparents could adequately care for the child.

The mother does not make any other argument for reversal of the juvenile court’s judgment. Her sole argument lacking any merit, we affirm the judgment.

AFFIRMED.

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

Thomas, J., recuses herself.

      . The father did not appeal from the judgment.


author: PER CURIAM. LABARGA, C.J.,

text:
    Matthew MARSHALL, Petitioner, v. Julie L. JONES, etc., Respondent.
    No. SC16-779
    Supreme Court of Florida.
    [May 4, 2017]
    Neal Andre Dupree, Capital Collateral Regional Counsel, and Todd G. Scher, Assistant Capital Collateral Regional Counsel, and Jessica Houston, Staff Attorney, Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Lisa-Marie Lerner, Assistant Attorney General, West Palm Beach, Florida, for Respondent
   PER CURIAM.

Petitioner Matthew Marshall has filed a petition for writ of habeas corpus, challenging the constitutionality of his death sentence, which was based upon a judicial override. See Marshall v. State, 604 So.2d 799, 802 (Fla. 1992). We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. Because Marshall’s sentence became final before Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), was decided, he is not entitled to relief. See Asay v. State, 210 So.3d 1 (Fla. 2016). Accordingly, we deny the petition.

It is so ordered.

LEWIS, QUINCE, POLSTON, and LAWSON, JJ., concur,

CANADY, J., concurs in result.

LABARGA, C.J., dissents with an opinion, in which PARIENTE, J., concurs.

LABARGA, C.J.,

dissenting.

I dissent from the decision of the majority to deny Matthew Marshall habeas corpus relief. Although his sentence admittedly became final prior to the issuance of Ring, this Court has “the power to reconsider and correct erroneous rulings in exceptional circumstances and where reliance on the previous decision would result in manifest injustice, notwithstanding that such rulings have become the law of the ease.” State v. Owen, 696 So.2d 715, 720 (Fla. 1997). Marshall’s death sentence, which was based upon a judicial override, constitutes an injustice that should be remedied.

The standard for review of a judicial override was articulated in Tedder v. State, 322 So.2d 908, 910 (Fla. 1975), abrogated by Hurst v. State, 202 So.3d 40 (Fla. 2016):

A jury recommendation under our ... death penalty statute should be given great weight. In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.

This elevated standard “honors the underlying principle that [the] jury’s advisory sentence reflected the ‘conscience of the community’ at the time of ... trial.” Keen v. State, 775 So.2d 263, 283 (Fla. 2000). The key focus under Tedder is whether there exists a “reasonable basis in the record to support the jury’s recommendation of life.” San Martin v. State, 717 So.2d 462, 471 (Fla. 1998). This is distinctly different from the weighing process that a trial court performs after a jury issues a recommendation of death. The recommendation of life “changes the analytical dynamic and magnifies the ultimate effect of mitigation on the defendant’s sentence.” Keen, 775 So.2d at 285. For example, with respect to the life recommendation in Keen, this Court noted that “[w]hile any of us might or might not have come to the same conclusion .,. had we been jurors, that is not the legal standard by which we must evaluate the override of the, jury’s recommendation.” Id. at 286 (emphasis added).

Marshall killed fellow inmate Jeffrey Henry at a correctional facility in Martin County. Marshall, 604 So.2d at 802. Although the jury recommended life impris-bnment, the trial court overrode that recommendation and imposed a sentence of death. Id, The court found four aggravating circumstances: (1) Marshall was under a sentence of imprisonment; (2) prior violent felony; (3) the murder occurred while Marshall was engaged in the commission of, or an attempt to commit, a burglary; and (4) the murder was espe-pially heinous, atrocious, or cruel. IdL at 802. In mitigation, the trial court found that Marshall behaved acceptably during trial, .and he entered prison at a young age. Id. The court rejected as mitigation that Marshall’s older brother led him astray to “run the streets” and engage in illegal conduct, and his mother caused him to believe that there would be no negative consequences for his behavior. Id. In overriding the jury recommendation, the trial court cursorily stated:

Sufficient aggravating circumstances exist as enumerated in section 921.141(5), and there are insufficient mitigating circumstances to outweigh the aggravating circumstances. The facts supporting this conclusion are so clear and convincing that no reasonable person could differ.

On direct appeal, this Court affirmed Marshall’s death sentence by a bare majority vote. Id. at 806. Chief Justice Bark-ett, in a concurring in part and dissenting in part opinion that was joined by Justices Shaw and Kogan, concluded that a reasonable basis for the jury’s recommendation of life existed, and the trial court abused its discretion when it overrode, that recommendation:

In addition to considering the stipulated testimony of Marshall’s father, the jury could have reasonably viewed the evidence of the murder in a light more favorable to Marshall. In his closing argument to the jury, defense counsel conceded that the aggravating circumstances of murder committed while under a sentence of imprisonment and previous conviction of a violent felony-were established, but strongly argued against the existence of the other ag-gravators presented' by the State, He argued that the death penalty should be reserved only for the worst murderers and worst aggravation. He pointed out that the evidence showed that Marshall and Henry had no prior problems with each other and had socialized together at the prison. Defense counsel emphasized that the circumstances of the crime indicate no prior plot or plan to kill since Marshall entered the cell unarmed and the murder was committed with a battery pack belonging to and found within the cell of the victim. He argued that offensive wounds on Henry’s hands showed that the murder occurred during the course of a fight and that Henry was a violent person. He also noted that Henry’s skull was not fractured and his facial bones weren’t broken, indicating that Marshall did not intend to.torture the victim or inflict additional injuries once he was rendered unconscious. Defense counsel also pointed out that the murder was not committed for financial gain. Finally, defense counsel argued that Marshall’s age and background mitigate the offense as well. He pointed out that a life sentence of 25 years on top of the sentence of 46 years that Marshall was already serving would keep Marshall in prison for a substantial period of time.
While the jury may not have believed that Marshall acted in self defense to excuse the killing, it could have reasonably inferred from the evidence that a fight erupted between Marshall and Henry and that Marshall killed Henry in a fit of rage. It is also likely that the jury rejected some of the aggravators found by the judge or assigned them minimal weight. Additionally, the jury could have reasonably found mitigation in Marshall’s family background and determined, based on the nature of the crime and the circumstances surrounding it, that the death penalty was not the appropriate penalty in this case.

Id. at 806-07 (citations omitted) (Barkett, C.J., concurring-in part and dissenting in part).

I agree - with Chief Justice Bárkett’s well-reasoned conclusion that under Ted-der, it was an abuse -of discretion for - the trial court to override the jury recommendation. -It cannot be said the facts of this case so clearly suggest a sentence of death “that virtually no reasonable person could differ.” Tedder, 322 So.2d at 910. The fact that three members of this Court dissented to the affirmance of the override demonstrates just the opposite is true.

I do not dispute that this was a violent murder. Matthew Marshall may be a violent person who deserves to be in prison for the rest of his life. However, in my opinion, the trial court failed to conduct the proper analysis under Tedder, and this Court failed to honor the “conscience of the community” when it affirmed the override in this case. Keen, 775 So.2d at 283. The time.has come to correct that erroneous ruling and afford Marshall what he is entitled to under the law—the sentence recommended by the jury who heard, considered,' and' carefully weighed the evidence presented.

Therefore, ! dissent.

PARIENTE, J., concurs.

      . Marshall had a "record of violent felonies consisting of kidnapping, sexual battery, and seven armed robberies." Id. at 806.

      . According to the decision on direct appeal:
      Marshall claimed that Henry was a "muscle man” for several inmates who operated a football pqol; When Marshall tried to collect his winnings from the inmates, they told him to get the money from Henry. Marshall claims he entered Henry's cell only to collect his winnings but that Henry refused to pay, and that Henry then ■ attacked him, so he fought back.
      Id. at 802. The Court later stated:
      [W]e find the circumstance of murder committed during the course of a burglary to have been proven beyond a reasonable doubt, Even if Marshall initially entered Henry’s cell with consent for the purpose of collecting a gambling debt, the only reasonable inference apparent from Marshall’s reentering the cell was that he intended to resume his attack on the victim.
      Id. at 805.