author: BOLIN, Justice.

text:
    Robert O. NEWELL v. SCI ALABAMA FUNERAL SERVICES, LLC, and Richard T. Johnson III
    1151078
    Supreme Court of Alabama.
    March 17, 2017

      Margaret M. Miller, Mobile, for appellant.-
    Edward A. Dean and Sam Gaillard Ladd, Jr., of Armbrecht Jackson LLP, Mobile, for appellees.
   BOLIN, Justice.

Robert 0. Newell appeals from an order of the Mobile Circuit Court granting a motion to, compel arbitration filed by SCI Alabama Funeral Services, LLC, and Richard T. Johnson III (hereinafter collectively referred to ás “SCI”).

Facts and Procedural History

Newell’s wife Lisa passed away at their home on November 17, 2013. Newell telephoned E-911, and an ambulance and the sheriffs department soon arrived. According to Newell, he requested that Lisa’s body be transported to Mobile Memorial Gardens Funeral Home. However, unbeknownst to Newell, Lisa’s body was transported to Radney Funeral Home.

The following day Newell, accompanied by his sister, two daughters, and a son-in-law, went to Mobile Memorial Gardens Funeral Home to make the final arrangements for Lisa. Newell testified that he asked his family to accompany him because he was distraught over Lisa’s death. When Newell and the others arrived at Mobile Memorial Gardens Funeral Home they met with Richard T. Johnson III, an employee of Mobile Memorial Gardens. Johnson informed Newell at that time that Lisa’s body had been transported to Rad-ney Funeral Home instead of Mobile Memorial Gardens Funeral Home. According to Newell, Johnson informed him that Lisa’s body had been transported to Rad-ney instead of Mobile Memorial Gardens because Radney was now a part of the Dignity Memorial Company and because Mobile Memorial Gardens did not have a crematory service. Newell stated that he was upset when he learned that Lisa’s body had been transported to Radney Funeral Home instead of Mobile Memorial Gardens Funeral Home.

Newell informed Johnson during the meeting that he wanted Lisa’s remains cremated and that he wanted to conclude the process as soon as possible. Johnson responded that they could return Lisa’s ashes to Newell within 5 to 10 days. According to Newell, Johnson then began asking him a series of questions from a “checklist” that Newell said he found “very insensitive,” including whether he wanted to pay to have Lisa’s eyes and mouth sewn shut during the cremation process. Newell elected not to have Lisa’s body embalmed because Johnson had represented that Lisa’s ashes would be returned to him in 5 to 10 days. After Newell answered the questions, he executed a contract providing for the disposition of Lisa’s remains by cremation.

The contract contained immediately above the signature lines a section entitled “NOTICES TO PURCHASER/CO-PURCHASER.” Within that section appeared the following:

“SEE PART THREE FOR TERMS AND CONDITIONS THAT ARE PART OF THIS AGREEMENT. DO NOT SIGN THIS AGREEMENT BEFORE YOU READ IT OR IF IT CONTAINS ANY BLANK SPACES. YOU ACKNOWLEDGE RECEIPT OF AN EXACT COPY OF THIS AGREEMENT.
“BY SIGNING THIS AGREEMENT, YOU ARE AGREEING THAT ANY CLAIM YOU MAY HAVE AGAINST THE SELLER SHALL BE RESOLVED BY ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A COURT OR JURY TRIAL AS WELL AS YOUR RIGHT OF APPEAL.”

(Capitalization in original.) The contract contains in part three a section entitled “TERMS AND CONDITIONS.” This section contains the arbitration provision, which provides:

“ARBITRATION: YOU AGREE THAT ANY CLAIM YOU MAY HAVE RELATING TO THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT (INCLUDING ANY CLAIM OR CONTROVERSY REGARDING THE INTERPRETATION OF THIS ARBITRATION CLAUSE) SHALL BE SUBMITTED TO AND FINALLY RESOLVED BY MANDATORY AND BINDING ARBITRATION IN ACCORDANCE WITH THE APPLICABLE RULES OF THE AMERICAN ARBITRATION ASSOCIATION (‘AAA’); PROVIDED, HOWEVER, THAT THE FOREGOING REFERENCE TO THE AAA RULES SHALL NOT BE DEEMED TO REQUIRE ANY FILING WITH THAT ORGANIZATION, NOR ANY DIRECT INVOLVEMENT OF THAT ORGANIZATION. THE ARBITRATOR SHALL BE SELECTED BY MUTUAL AGREEMENT OF THE PARTIES. IF THE PARTIES FAIL TO OR ARE UNABLE TO AGREE ON THE SELECTION ' OF AN APPROPRIATE ARBITRATOR, THE AAA SHALL SELECT THE ARBITRATOR PURSUANT TO ITS RULES AND PROCEDURES UPON THE APPLICATION OF ONE OR BOTH PARTIES. THIS AGREEMENT TO ARBITRATE ALSO APPLIES TO ANY CLAIM OR DISPUTE BETWEEN OR AMONG THE SELLER, YOU AS THE PURCHASER, ANY PERSON WHO CLAIMS TO BE A THIRD PARTY BENEFICIARY OF THIS AGREEMENT, ANY OF THE SELLER’S EMPLOYEES OR AGENTS, ANY OF THE SELLER’S PARENT, SUBSIDIARY, OR AFFILIATE CORPORATIONS, EXCEPT AS MAY BE REQUIRED BY LAW, NEITHER PÁRTY NOR AN ARBITRATOR MAY DISCLOSE THE EXISTENCE, CONTENT, OR RESULTS OF ANY ARBITRATION .HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF BOTH PARTIES.”

(Capitalization in original.) The contract also requested that Newell provide his Social Security number directly below the signature line; however, Newell wrote “refused” on the line provided for the Social Security number.

Newell states that after Lisa’s memorial service on November 21, 2013, SCI did not return any of his telephone calls or e-mails inquiring as to the status of Lisa’s remains. Newell eventually Went to Radney Funeral Home on December 4, 2013, to obtain an answer regarding the status of Lisa’s remains. Newell learned at that time that Lisa had,not yet been cremated because the funeral home had not yet received the death certificate from a physician. Newell stated that at that time he was so upset over the lack of communication and the knowledge of the status of Lisa’s remains that he requested that his sister re-identify Lisa’s remains. Newell alleged that he was emotionally distraught over the potential state of Lisa’s remains because, based on Johnson’s representation that she would be cremated within 5 to 10 days, he had elected not to embalm her. Lisa’s ashes were ultimately returned to Newell on December 6, 2013.

On November 17,2015, Newell sued SCI alleging negligence, wantonness, the tort of outrage, and fraud. On March 8, 2016, SCI moved the trial court to compel arbitration. On May 12, 2016, Newell filed a response in opposition to the motion to compel arbitration or, in the alternative, seeking discovery relating to arbitration, arguing that the arbitration provision was unconscionable. Specifically, Newell argued that the terms of the arbitration provision were grossly favorable to SCI, that SCI had overwhelming bargaining power over a grieving husband, and that the arbitration provision violated public policy. On May 31, 2016, the trial court entered an order granting SCI’s motion to compel arbitration. Newell appeals.

Standard of Review

This Court’s standard of review of a ruling on a motion to compel arbitration is well settled:

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

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

Discussion

Newell argues that the arbitration provision in part three of the contract is unconscionable, and therefore void, because, he says, the terms of the -provision are grossly favorable to SCI. “Unconscion-ability is an affirmative defense, Green Tree Fin. Corp. v. Wampler, 749 So.2d 409, 415 (Ala. 1999), and the party asserting the defense bears the burden of proof. Ex parte Napier, 723 So.2d 49, 52-53 (Ala. 1998).” Fleetwood Enters., 784 So.2d at 281. In order to meet that burden, the party seeking to invalidate an arbitration provision on the basis of unconscionability must establish both procedural and substantive unconscionability, Blue Cross Blue Shield of Alabama v. Rigas, 923 So.2d 1077, 1087 (Ala. 2005). As this Court explained in Rigas:

“Substantive unconscionability
“ ‘ “relates to the substantive contract terms themselves and whether those terms are unreasonably favorable to the more powerful party, such as terms that impair the integrity of the bargaining process or otherwise contravene the public interest or public policy; terms (usually of an adhesion or boilerplate nature) that attempt to alter in an impermissible manner fundamental duties otherwise imposed by the law, fine-print terms or provisions that seek to negate the reasonable expectations of the nondrafting party, or unreasonably and unexpectedly harsh terms having to do with price or other central aspects of the transaction.” ’
“Ex parte Thicklin, 824 So.2d 723, 731 (Ala. 2002) (emphasis omitted) (quoting Ex parte Foster, 758 So.2d 516, 520 n. 4 (Ala. 1999), quoting in turn 8 Richard A. Lord, Williston on Contracts § 18:10 (4th ed. 1998)). See also Leeman v. Cook’s Pest Control, Inc., 902 So.2d 641 (Ala. 2004).
“Procedural unconscionability, on the other hand, ‘deals with “procedural deficiencies in the contract formation process, such as deception or a refusal to bargain over contract terms, today often analyzed in terms of whether the imposed-upon party had meaningful choice about whether and how to enter into the transaction.” ’ Thicklin, 824 So.2d at 731 (quoting Foster, 758 So.2d at 520 n. 4, quoting in turn 8 Williston on Contracts § 18:10).”

923 So.2d at 1086-87.

Relying upon Anderson v. Ashby, 873 So.2d 168 (Ala. 2003), Newell initially argues that the arbitration provision was substantively unconscionable.

I.

Newell first contends that the breadth of the arbitration provision meets the standard for substantive unconsciona-bility, because, he says, it reaches every possible action the party opposing arbitration may have against the party seeking to compel arbitration and protects every individual against whom a claim could be brought. The arbitration provision in Anderson provided:

“‘Borrower(s) and Lender agree that, except as otherwise set forth in this provision, all claims, disputes, or controversies of every kind and nature between Borrower(s) and Lender shall be resolved by arbitration including (i) those based on contract, tort or statute, (ii) those arising out of or relating to the transaction(s) evidenced by this agreement, the disclosures relating to this agreement, the Federal Disclosure Statement, any insurance certificates or policies, any documents executed at or about the same time this agreement was executed or (iii) those arising out of, [or], relating to any other prior, proposed or-actual loan or extension of credit (and the relationships which result from these transactions or any other previous transactions between Borrower(s) and Lender). Borrower(s) and Lender further agree that all issues and disputes as to the arbitrability of claims must also be resolved by the arbitrator.
“‘BORROWERS) AND LENDER UNDERSTAND THAT EACH HAS THE RIGHT TO LITIGATE SUCH DISPUTES THROUGH A COURT, AND BORROWER(S) AND LENDER VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL OR JUDGE TRIAL OF SUCH DISPUTES.
“‘BORROWER(S) AND LENDER AGREE THAT THE ARBITRATOR MAY AWARD PUNITIVE DAMAGES ONLY UNDER CIRCUMSTANCES WHERE A COURT OF COMPETENT JURISDICTION COULD AWARD SUCH DAMAGES. HOWEVER, IN NO EVENT SHALL AN AWARD OF DAMAGES EXCEED FIVE (5) TIMES THE ECONOMIC LOSS SUFFERED BY THE PARTY. BORROWERS) AND LENDER FURTHER AGREE- THAT THE ARBITRATOR SHALL NOT CONDUCT - ANY CLASS-WIDE PROCEEDINGS AND WILL BE RESTRICTED TO RESOLVING THE. INDIVIDUAL DISPUTES BETWEEN THE PARTIES.
‘Borrower(s) and Lender agree that, notwithstanding the foregoing, Lender retains the right to use judicial or self-help remedies (i) to repossess or foreclose on collateral or to enforce the security interests relating to this transaction, and (ii) to pursue collection actions against the Borrower(s) where the amount of the debt is $10,000 or less. The exercise of this right by Lender to pursue judicial or self-help remedies shall not constitute a waiver of Lender’s right to compel the arbitration of any claim or dispute subject, to this arbitration clause—including the filing of a counterclaim by Borrower(s) in a lawsuit filed by Lender.’ ”

873 So.2d at 170. This Court found the arbitration provision in Anderson unconscionable, on the basis that it contained a number of terms grossly favorable to the defendant and indicative .of unconscionability, including:

“1) the breadth of the arbitration agreement, which extends to every cause of action that might conceivably arise in favor of the Ashbys and that applies to every individual or entity against whom the Ashbys might bring a claim; (2) the provision purporting to invest the arbitrator with the threshold issue of arbi-trability; (3) the provision reserving to American General Finance the right to a trial by jury while mandating that the Ashbys arbitrate any and every claim that might arise; and (4) the provision limiting the Ashbys’ right of recovery for , all species of damages to no more than five times the economic loss while preserving American General Finance’s right to seek full redress for its claims.”

Anderson, 873 So.2d at 176-77.

Focusing on the provision in “Notices to Purchaser/Co-Purchaser” that states “BY SIGNING THIS AGREEMENT, YOU ARE AGREEING THAT ANY CLAIM YOU MAY HAVE AGAINST THE SELLER SHALL BE RESOLVED BY ARBITRATION,” Newell argues that, like the arbitration provision in Anderson, this provision is overly broad because it contemplates that every conceivable claim he might possibly have against SCI must be submitted to arbitration. This argument is not well taken.

The provision relied upon by Newell to form the basis of his argument is not the actual arbitration provision. Rather, the provision is contained in. the “Notices to Purchaser/Co-Purchaser” section and informs the signatory that the contract contains an arbitration provision. Further, the “Notices to Purchaser/Co-Purchaser” section expressly informs the signatory that the terms and conditions of the contract are found in part three of the contract. Part three of the contract contains the arbitration provision, which expressly limits it scope to “any claim ... relating to the transaction contemplated by this agreement.” Because the arbitration provision in this case expressly limited its scope to claims relating only to transactions contemplated by the contract of which it was a part and did not extend to every conceivable claim that may have arisen in favor of Newell against SCI, it is distinguishable from the arbitration provision in Anderson. Accordingly, because the scope of the arbitration provision is expressly limited to only those claims “relating to the transaction contemplated by this agreement,” we cannot say that it is so overly broad so as to be unconscionable.

II.

Newell, again relying upon Anderson, next argues that the arbitration provision, which vests the arbitrator with the jurisdiction to determine questions of arbitra-bility, is grossly favorable to SCI and therefore unconscionable. The arbitration provision in Anderson provided that “all issues and disputes as to the arbitrability of claims must also be resolved by the arbitrator.” 873 So.2d at 170. The arbitration provision presently before this Court provides that “any claim or controversy regarding the interpretation of this arbitration clause ... shall be submitted to and finally resolved by mandatory and binding arbitration.”

This Court has upheld arbitration provisions that give the arbitrator the authority to determine arbitrability:

“When deciding the threshold issue whether the court or the arbitrator decides a challenge to the enforcement of an arbitration clause entered into by the parties, the court first must satisfy itself that the terms of the arbitration clause are broad enough to permit the arbitrator to decide issues of arbitrability. However, a determination that, by the terms of the arbitration clause, the arbitrator is to decide issues of arbitrability does not end the inquiry. Where the attack is addressed to the arbitration clause itself, as opposed to the contract as a whole, the court, and not the arbitrator, resolves the issue. But, when the challenge goes to the whole contract, a contract that happens to contain an arbitration clause, the issue of enforceability of the contract, including the arbitration clause, is for the arbitrator to decide.”

Green Tree Fin. Corp. of Alabama v. Wampler, 749 So.2d 409, 413 (Ala. 1999). See also Regions Bank v. Neighbors, 168 So.3d 1 (Ala. 2014); Anderton v. Practice-Monroeville, P.C., 164 So.3d 1094 (Ala. 2014); and CitiFinancial Corp. v. Peoples, 973 So.2d 332, 340 (Ala. 2007).

As discussed above, this Court found unconscionable in Anderson a provision reserving to the arbitrator the authority to determine the threshold issue of arbitrability when considered in conjunction with several other terms in the contract that were grossly favorable to the defendant. Those other grossly favorable terms are not present in this case. Initially, we determined above that the arbitration provision was not. overly broad so as to include every conceivable claim that could arise between Newell and SCI because the arbitration provision in part three is expressly limited to the transaction contemplated by the contract. Second, the arbitration provision in this case contains no terms limiting Newell’s right to the recovery of damages. Accordingly, the terms found in the arbitration provision in this case, in addition to that reserving to the arbitrator the authority to determine any issues of arbitrability, are not so grossly favorable to SCI as to render the arbitration provision unconscionable.

III.

Continuing to rely upon Anderson, New-ell next argues that a defendant’s specific reservation of the right to avail itself of the courts while forcing a plaintiff to arbitrate every conceivable claim is grossly favorable to the defendant and therefore unconscionable. We find Anderson to be easily distinguishable from the'present case. In Anderson, the . defendant expressly reserved in the arbitration provision the “right to use judicial or self-help remedies (i) to repossess or foreclose on collateral or to enforce the security interests relating to this transaction, and (ii) to pursue collection actions against the Borrower(s) where the amount of the debt is $10,000 or less,” 873 So.2d at 170, while requiring the plaintiffs to arbitrate any and every claim that might arise between the parties.

We initially note that there is no express reservation by SCI in'the arbitration provision here of the right to avail itself of the courts, while relegating Newell to arbitration. Although the contract does allow SCI to refer the agreement to an attorney for collections, there is no express reservation of that right in the arbitration provision. In addition to expressly' reserving the right to pursue collections, the arbitration provision in Anderson expressly reserved to the defendant the right to avail itself of the courts in order to pursue foreclosure or repossession of collateral. That factor is not present in this case. Also, as discussed above, the arbitration provision here requires Newell to arbitrate only the claims relating to the transaction contemplated by the agreement between the parties, whereas the arbitration provision in Anderson expressly reserved for the defendant the right to avail itself of the courts in order to pursue the collateral and to allow for collections, while requiring the plaintiff to arbitrate any and every conceivable claim between the parties. Finally, the limitation of the plaintiffs right of recovery contained in the arbitration provision in Anderson is not present in this case. Accordingly, the contract term allowing SCI to refer the agreement to an attorney for collections is not so grossly favorable to SCI as to render the arbitration provision unconscionable.

Based on the foregoing, we conclude that Newell has failed to establish that the arbitration provision in this case was substantively unconscionable. Rigas, supra.

IV.

Newell next argues that the arbitration provision was also “procedurally” unconscionable because, he says, SCI had overwhelming bargaining power over him in that he was distraught and grieving when he executed the contract containing the arbitration provision. As set out .earlier in the quotation from Rigas, procedural unconscionability deals with the procedural deficiencies in the contract-formation process, “‘“such as deception or a refusal to bargain..over contract terms, today often analyzed in terms of whether the imposed-upon party had a meaningful choice about whether and how to enter into the transaction.” ’ ” Leeman v. Cook’s Pest Control, Inc., 902 So.2d 641, 645 (Ala. 2004)(quoting Ex parte Thicklin, 824 So.2d 723, 731 (Ala. 2002), quoting in turn Ex parte Foster, 785 So.2d 516, 520 n.4 (Ala. 1999)). Newell does not claim that SCI deceived him or coerced him into entering into the contract containing the arbitration provision. Rather, Newell claims that, when a contract involves funeral matters, time is of the essence with respect to making final arrangements and it is not practical to require a grieving family member to “shop around” for a funeral home that does not require the execution of an arbitration' agreement. Newell states that he had originally selected Mobile Memorial Gardens Funeral Home as the funeral home he wanted to use and that when he arrived there to make the final arrangements he was notified that Lisa’s remains had been taken to Radney Fuiieral Home without his knowledge. He claims that to require him at that point in time to make an additional choice regarding funeral homes in the state of mind he was in would have required him to expend considerable effort and resources. Newell contends that those considerable efforts and resources should be viewed in the context of a family making final arrangements for a loved one and that, when viewed in that light, SCI held overwhelming bargaining power over him.

“‘Although a party would not have to spend a considerable amount of time and effort to find alternatives, Alabama Courts, nevertheless, do require that a party “shop around” in order to show that there was no meaningful alternative.’ ” Leeman, 902 So.2d at 647 (quoting Pitchford v. AmSouth Bank, 285 F.Supp.2d 1286, 1295 (M.D. Ala. 2003)). Although the sensitive nature of the circumstances in this case are not lost upon this Court, we cannot say that those circumstances would have required Newell to expend considerable effort and resources in seeking an alternate funeral home as he claims'. Nothing in the record indicates that either Newell or one of the other family members accompanying him to make the final arrangements was unable to at least make a telephone call to one of the number of funeral homes in the Mobile area to inquire about funeral services. Newell’s assertions that he did not consider alternatives and that he was in no position to negotiate because of his emotional state must be viewed in light of his express refusal to provide his Social Security number and his negotiation of the services he desired for his wife, including the choice of cremation and the insistence that the cremation process be concluded as soon as possible. Based on the foregoing, we conclude that Newell has failed to establish that the circumstances under which he entered into the contract containing the arbitration provision were procedurally unconscionable. Rigas, supra.

V.

Newell last argues that the arbitration provision in part three of the contract violates public policy. “ ‘The [Federal Arbitration Act] preempts contrary state law (specifically, contrary law based on Ala. Code 1975, § “'8-1-41(3), and public policy) and renders enforceable a written predispute arbitration agreement but only if that agreement appears in a contract evidencing a transaction that “involves” interstate commerce.’” Tefco Fin. Co. v. Green, 793 So.2d 755, 758 (Ala. 2001) (quoting Southern United Fire Ins. Co. v. Knight, 736 So.2d 582, 585-86 (Ala. 1999)). This Court has consistently enforced arbitration agreements where the-following elements are established: (1) “ ‘the existence of a contract calling for- arbitration”’ and (2) “ ‘that contract evidences a transaction affecting interstate commerce.’ ” Kenworth of Mobile, Inc. v Dolphin Line, Inc., 988 So.2d 534, 539-39 (Ala. 2008)(quoting Fleetwood Enters., 784 So.2d at 280).

' In this case, we have before us a contract that includes ah arbitration‘provision that we have upheld as being'valid in the face of challenges based on unconscionability. Newell has made no argument that the contract is not one evidencing a transaction involving interstate commerce. Again, although we realize the sensitive nature of the circumstances surrounding the underlying transaction in this case, we cannot say that the arbitration provision in this case violates public policy.

Conclusion

Based on the forgoing, wé conclude that Newell has failed' to establish that the arbitration provision contained in the contract he executed with SCI for funeral services was unconscionable' or that it violated public policy. Accordingly, we affirm the trial court’s order compelling arbitration of the dispute.

AFFIRMED.

Murdock, Main, Wise, and Bryan, JJ., concur.

      . It appears that SCI Alabama Funeral Services, LLC, is an Alabama corporation that owns or is qtherwise affiliated with the Dignity Memorial network of funeral homes, of which Mobile Memorial Gardens Funeral Home and Radney Funeral Home are a part.


source: Caselaw Access Project

author: BRYAN, Justice. SHAW, Justice PARKER, Justice

license: Public Domain

text:
    SIMMONS GROUP, LTD v. Caine O’REAR, Jr. Family Trust et al.
    1150475
    Supreme Court of Alabama.
    March 24, 2017

      S. Allen Baker, Jr., James A. Bradford, Ed R. Haden, and Susan N. Han of Balch & Bingham LLP, Birmingham, for appellant.
    Gordon Griffith O’Rear of O’Rear & O’Rear, LLC, Jasper, for appellee.
    Joseph E. Powell, Birmingham, for ami-cus curiae Alabama Land Title Association, in support of the appellant.
   BRYAN, Justice.

This case began as an interpleader action filed by El Paso E & P Production, L.P. (“El Paso”), to determine who owns the mineral interest in a piece of property located in Walker County, Alabama (“the Landon parcel”), on which El Paso operates a methane well. The competing claimants for the mineral interest are Simmons Group, LTD (“Simmons Group”), on the one hand, and the Caine O’Rear, Jr. Family Trust, Mary Lou Foy, Susan Foy Spratling, Paula Robertson Rose, Stacy Baker Carson, and Warren Dane Baker (hereinafter referred to collectively as “O’Rear”), on the other hand. Simmons Group claims ownership by an unbroken chain of conveyances starting with an 1883 quitclaim deed from one Elizer Taylor to Musgrove Bros, purporting to convey the mineral interest (“the 1883 deed”). O’Rear claims ownership by a separate chain of conveyances originating in the adverse possession of the Landon parcel by one J.K.P. Chilton and allegedly ripening into ownership sometime before 1921. O’Rear does not argue that Chilton adversely possessed the mineral interest separate from the surface estate. Rather, O’Rear argues that the 1883 deed did not validly convey the mineral interest and that the mineral interest was not severed from the surface estate until after Chilton adversely possessed the Landon parcel. O’Rear does not dispute Simmons Group’s chain of title subsequent to the 1883 deed. Thus, it is undisputed that, if the 1883 deed validly conveyed the mineral interest to Musgrove Bros., Simmons Group is the rightful owner. Ownership of the mineral interest is the dispositive issue in this case.

The case was tried before the circuit court upon stipulations, admissions of fact, and briefs. The court did not hear oral testimony. The circuit court determined that Chilton had adversely possessed the Landon parcel with the mineral interest still attached and that O’Rear therefore owns the mineral interest.

Standard of Review

Because the circuit court did not hear oral testimony, our standard of review is de novo. § 12-2-7, Ala. Code 1975 (“[I]n deciding appeals, no weight shall be given the decision of the trial ¡judge upon the facts where the evidence is not taken orally before the judge, but in such cases the Supreme Court shall weigh the evidence and give judgment as it deems just.”). See also Eubanks v. Hale, 752 So.2d 1113, 1122 (Ala. 1999) (stating that “where no testimony is presented ore tenus, a reviewing court will not apply the presumption of correctness to a trial court’s findings of fact and ... the reviewing court will review the evidence de novo”).

Discussion

Neither Simmons Group nor O’Rear can trace its chain of title to Landon, the original owner. Indeed, there is a break in the chain of title to the Landon parcel because in 1877 a fire destroyed the Walker County courthouse along with the Walker County land records. Consequently, Simmons Group argues that its chain of title, which begins with the 1883 deed, is superior to O’Rear’s under Whitehead v. Hester, 512 So.2d 1297 (Ala. 1987). In Whitehead, this Court held that when all land records have been destroyed, the first conveyance recorded thereafter becomes the new beginning point of the chain of title. In this case, the first recorded conveyance subsequent to the total destruction of the land records in Walker County is the 1883 deed.

O’Rear argues that Whitehead is distinguishable from the present case for two reasons. First, O’Rear argues that Simmons Group failed to establish that all land records in Walker County were destroyed in the 1877 fire and that, therefore, Whitehead does not apply. Second, O’Rear argues that the evidence shows that Elizer Taylor did not own the mineral interest when she executed the 1883 deed and that the deed was therefore ineffective to sever the mineral interest from the surface estate.

I. Destruction' of the Walker County Land Records

This Court based its decision in Whitehead on the fact that “neither side in th[at] case [could] trace its title back to the sovereign or to a common grantor because of the total destruction of all the land records by the 1890 fire that also destroyed the Franklin County Courthouse.” Whitehead, 512 So.2d at 1301. O’Rear argues that Simmons Group failed to establish that*all the land records were destroyed in the 1877 fire and that, therefore, Whitehead is inapplicable. We disagree. It is undisputed that the Walker County courthouse burned to the ground in 1877. Furthermore, the record on appeal contains no evidence of any land records having survived that fire. The total destruction of the building housing the county records, along with the absence in the record of any surviving records, is substantial evidence that the Walker County land records were totally destroyed in the 1877 fire. O’Rear has offered no evidence to suggest that any records survived. Accordingly, the rule from Whitehead applies to reestablish the beginning point of the chain of title to the disputed mineral interest.

II. Evidence That Elizer Taylor Did, Not Own the Mineral Interest in 1883

Under' Whitehead, this Court presumes that the first recorded conveyance after the total destruction of land records to a property is the beginning point of a disputed chain of title. The Court looks to instruments that actually purport to convey an interest, rather than instruments merely concerning ownership of the land. This is because the purpose of the Whitehead rule is to bring clarity to title disputes where the best evidence of ownership—he., the intact chain of title—is lost. Only instruments that actually purport to convey an interest can serve the purpose of Whitehead; instruments that, by their terms, cannot convey an interest also cannot form part of the chain of title. Furthermore, by pinning the new beginning point of the chain of title to the first conveyance recorded after the destruction of the land records, the Whitehead rule protects parties from undertaldng the onerous task of showing who owned certain property more than a century after the best evidence of ownership has been lost. As the Court stated in Whitehead:

“To require • [the- parties] to somehow locate the originals of the instruments that were destroyed in the fire and, thus, establish their chain of title from the present date completely back to a government patent or to a common grantor, would place an unreasonable burden on them, or on others similarly situated.”

512 So.2d at 1302.

Of course, the Whitehead rule does nothing to disturb the basic property rule that a grantor' cannot convey more than the grantor1' actually owns. See, e.g., Chancy v. Chancy Lake Homeowners Ass’n, Inc., 55 So.3d 287, 297 (Ala. Civ. App. 2010)(stating that “[a] landowner cannot convey a greater interest in property than he possesses”). Thus, proof that the grantor of the first-recorded deed did not actually own the property at the time of the purported conveyance will defeat the presumption underpinning the Whitehead rule. O’Rear, however, presents no such proof.

In this case, the only post-fire evidence concerning ownership of the mineral interest before the 1883 deed is an 1871 agreement, recorded in 1879, between one Nancy Landon and one Luiza Taylor (“the 1871 agreement”), and three 1920 affidavits sworn to by. G.W. Kilgore, E.S. Hutto, and W.R. Brown (“the 1920 affidavits”). The 1871 agreement states, in pertinent part:

“Contract made and executed the 28th day of November one thousand eight hundred and seventy one by and between Nancy Landon of the first part and Luiza Taylor of the second part both of the County of Walker and the State of Alabama[.] [T]he said Nancy Landon agrees to give to her daughter Luiza Taylor her property to take’care of her her life time and the said Luiza Taylor agrees to take care of her mother Nancy Landon her life time for the property of her mother all the following described Land ... [describing the Landon parcel] .... and if either of the above named parties fails to comply with the above named duty this obligation is void and set aside.” •

O’Rear argues that this agreement shows that the mineral interest had not been severed .from the surface éstate of the Landon parcel and that, therefore, Elizer Taylor did not own the mineral interest when she purported to convey it to Mus-grove Bros, in 1883. This argument is unpersuasive. At-most, the 1871 agreement is evidence that someone besides Elizer Taylor owned the mineral interest in 1871. Evidence that Elizer Taylor did not own the mineral interest in 1871 is not inconsistent with her ownership of the. interest 12 years later in 1883. Thus, the 1871 agrees ment cannot defeat the presumption that the 1883 deed is the beginning point of the chain of title.

The 1920 affidavits, which are each identical in substance, allege that, when the 1883 deed was executed, Elizer Taylor had been in adverse possession of both the mineral interest and surface of the Landon parcel for “more than one year.” O’Rear argues that, because those-affidavits establish that Taylor had been in adverse possession of the as-yet-unsevered mineral interest for less than the prescriptive period when she executed the 1883 deed, that deed could not convey title. This argument is also unpersuasive. The assertion in the 1920 affidavits that Taylor was in adverse possession of the mineral interest is a legal conclusion, not a factual allegation. Furthermore, the nonspecific assertion that Taylor had been in adverse possession for longer than a year does not support O’Rear’s argument that Taylor had been in adverse possession for less than the prescriptive period. That assertion is, in fact, fully consistent with Taylor’s possession for the prescriptive period. The 1920 affidavits contain no factual allegations inconsistent with Taylor’s actual ownership of the mineral interest and therefore cannot defeat the presumption that the 1883 deed is the beginning point of the chain of title to the mineral interest.

Conclusion

In this case, the first conveyance of the mineral interest recorded after the total destruction of the Walker County land records is the 1883 deed. As such, the 1883 deed is the presumed beginning point of the chain of title under the Whitehead rule. O’Rear has offered no evidence sufficient to rebut this presumption. Therefore, we hold that title to the mineral interest in the Landon parcel vests in Simmons Group. Accordingly, we reverse the circuit court’s judgment and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Bolin, Main, Wise, and Bryan, JJ., concur.

Shaw, J., concurs specially.

Murdock, J., concurs in the result.

Stuart and Parker, JJ., concur in the result in part and dissent in part.

SHAW, Justice

(concurring specially).

I concur. I write specially to note the following, which I discuss not as an independent theory on which to. decide this case, but simply as a broader discussion of the facts presented here.

There are two chains of title to two different estates. One chain shows a transfer of a mineral estate only. This is the chain claimed by the appellant, Simmons Group, LTD (“Simmons”). The other, with some aberrations, shows a transfer of a surface estate. This is the chain claimed by the appellees. The evidence before us tends to explain how these two chains came into being.

We have evidence indicating that John Landon received the property from the United States. We have an agreement dated 1871 indicating that a later Landon, Nancy, agreed to transfer the property to her daughter, Luiza Taylor. In 1883, another Taylor, Elizer, transferred the mineral estate to Simmons’s predecessor in title. Then, there is the 1887 deed by R.A, Baker and J.A. Baker conveying the property to A.H. Johnston; the nature of the interest they owned is not clear. However, in 1898, Johnston conveyed the surface rights of the property to William M. Wallace. Thus, we see Taylors receiving the property from Landons, and then Taylors selling the mineral estate. Subsequent history shows that the mineral estate and the surface estate were being separately transferred.

All of this appears to help explain what happened: The Landons transferred the property to the Taylors, and the surface estate and mineral estate were subsequently transferred separately by the Tay-lors. We have some evidence confirming or tending to confirm those transfers, but records showing other transfers were lost in the 1877 fire that destroyed the Walker County courthouse. Nevertheless, we do have some explanation as to how the two chains of title exist, and it tends to confirm the holding that results in this case by the application of the rule in Whitehead v. Hester, 512 So.2d 1297 (Ala. 1987).

PARKER, Justice

(concurring in the result in part and dissenting in part).

' I concur in the result insofar as the majority reverses the circuit court’s judgment in favor of the O’Rear defendants.

I dissent in part because I believe that the main opinion unnecessarily limits a trial court’s discretion in considering relevant evidence in a property dispute when it is presented with the situation, as in this case, where competing chains of title cannot be traced to a common grantor or to a patent deed from the United States as a result of the destruction of the relevant land records. I agree that the rule from Whitehead v. Hester, 512 So.2d 1297 (Ala. 1987), applies in this case; I disagree, however, with the majority’s interpretation and application of this rule.

Initially, I note that the Whitehead rule was created by this Court in 1987 to resolve a very specific factual situation before it and that it has not been applied since. The Whitehead Court made very clear that its decision announcing this novel, judicially created rule was to be limited to the facts before it. See Whitehead, 512 So.2d at 1301-02 (using language like “under the facts of this case” and “[i]n such circumstances”). The Whitehead Court did not have before it any evidence of recorded instruments other than deeds. The question now before this Court was not decided by the Whitehead Court. I do not think it would be wise to try to make the rule created by the Whitehead Court—intended to resolve a specific factual situation before it—into a “one-size-fits-all” rule with rigid application. With this in mind, I turn to a discussion of Whitehead.

In Whitehead, the parties disputed the ownership 1 of a mineral interest. This Court stated that “[t]he parties derive their respective claims of title to the minerals under two separate chains of title which do not emanate from a common grantor and which are not traced back to a patent from the United States.” 512 So.2d at 1298. This Court noted that the parties were unable to trace their claims of title back to the patent title from the United States “because in 1890, a fire destroyed the courthouse in which land records were maintained.” Id. Accordingly) there was a “break in each party’s chain of title.” Id.

The appellees in Whitehead claimed ownership of the mineral interest “by virtue of a direct and unbroken chain of conveyances commencing in 1892.” 512 So.2d at 1298. The original conveyance in thé appellees’ chain of title was a quitclaim deed dated October 7, 1892. It was undisputed that the October 7, 1892, deed was “the first documentary evidence,”' 512 So.2d at 1298-99, concerning the ownership of the at-issue mineral interest following the 1890 fire that had destroyed the relevant land records. The appellants in Whitehead “trace[d] their surface ownership through a chain of conveyances commencing with a warranty deed ... dated October 27, 1906, which was 14 years after the initial quitclaim deed conveying the mineral interest to [the appellees’] predecessor.” 512 So.2d at 1299.

The trial court in Whitehead had held that the quitclaim deed dated October 7, 1892, severed the mineral interest from the surface estate of the at-issue property. The appellants argued that the October 7, 1892, deed was “ineffective to transfer title, because there [was] no evidence which tracefd] title back to the United States or to a common.grantor.” 512 So.2d at 1301. This Court noted .that, “[o]f course, neither side.in this case can trace its title back to the sovereign or to a common grantor because of the total destruction of all the land records by the 1890 fire.” Id. This Court then stated:

“We cannot accept the assertion that [the grantor of the October 7, 1892, deed] was not the holder of legal title to the land and was not legally empowered to sever the- mineral interest, under the facts of this, case. The first conveyance covering the disputed mineral interest which was filed for record after the destruction of county records by fire was the conveyance in 1892 from [the grant- or of'the October 7, 1892, deed] to [the grantee]. This conveyance was competent and relevant evidence of a separate mineral estate, in which [the grantor of the October 7, 1892, deed] claimed an interest. Since the conveyance from [the grantor of the October 7, 1892, deed] to [the grantee] in 1892, the mineral interest has passed through a clear and unbroken chain of title directly to [the appellees]. If the argument of the [appellants] were sustained, then one who acquired a mineral interest created in Franklin County prior to 1890 might have difficulty in establishing the validity of his title. To require [the appellees] to somehow locate the originals of the instruments that were destroyed in- the fire and, thus, establish their chain of title from the present date completely back to a government patent or to a common grantor, would place an unreasonable burden on them, or on others similarly situated.
“The initial conveyance in the [appellants’] chain of title was from W.H. Tipton to J.A. Thorn in 1906, Again, because of the destruction of thé courthouse records by fire, there is nothing in the records to indicate that W.H. Tipton had any title whatsoever to convey in 1906. After the patent in 1844, the next .conveyance concerning the subject property filed for record—so far as the present records indicate— was the 1892 quitclaim deed from [the grantor of the October 7, 1892, deed] to [the grantee]. Some 14 years later, the [appellants’] chain of title begins with a deed from one W.H, Tipton to J.A. Thorn. In such circumstances, when dealing with two separate and distinct titles to the same property, as here, the Court should acknowledge the superiority of the title of those obtaining interests by the earliest recorded instruments. Pollard v. Simpson, 240 Ala. 401, 199 So. 560 (1941).”

512 So,2d at 1301-02. Thus, this. Court concluded that the appellees had established “paramount legal title” to the mineral interest. 512 So.2d at 1304.

In summary, this Court determined in Whitehead that, in that it was impossible for the claimants of the property to trace their chains of title to the original grantor because the land records needed to do so had been destroyed by fire, the Court presumed that the grantor of - the earliest recorded instrument subsequent to the destruction of the land records owned a fee-simple interest in the land the grantor was conveying. Accordingly, this Court determined that the party able to trace his chain of title to the earliest recorded instrument indicating ownership of the land had paramount legal title.

The Whitehead rule is one of practicality; it operates to establish a new starting point when there is a break in the chain of ownership concerning a disputed property as the result of the destruction of the relevant land records. The purpose of the Whitehead rule is to establish this new starting point as close in time as possible to the destruction of the relevant land records. Unlike the majority, I believe that the trial court should be permitted to consider any admissible evidence in applying the Whitehead rule in order to be as certain as possible that the new starting point begins with the actual owner of the property.

. The majority decision, however,- interprets Whitehead to hold that the earliest recorded instrument purporting to convey title is the only evidence that can establish a new starting point under the Whitehead rule. I disagree with this interpretation of the Whitehead rulé because it deprives the trial court of the discretion to consider admissible evidence, other than a recorded deed, for purposes of establishing a new starting point. Whitehead did not establish such a rigid precedent, and I see no reason to make the judicially created, fact-specific "Whitehead rule rigid at this time.

In Whitehead, this Court noted that the first recorded documentary evidence concerning ownership of the at-issue property following the destruction of- the land records was the October 7, 1892, deed. However, nothing in Whitehead indicates that the first documentary evidence must be a deed. It just so happened that in Wfiiite-head a recorded deed was the first documentary evidence; deeds were the only evidence presented concerning ownership of the property in Whitehead. It is within this context that' the Whitehead Court stated: “In such circumstances, when dealing with two separate and distinct titles to the same property, as here, the Court should acknowledge the superiority of the title of those obtaining interests by the earliest recorded instruments.” 512 So.2d at 1802 (emphasis added). Black’s Law Dictionary defines “instrument” as “[a] written document; a formal or legal document in writing, such as a contract, deed, will, bond, or lease.” Black’s Law Dictionary 719 (5th ed. 1979).

In the present case, the earliest recorded instrument concerning ownership of the property following the alleged destruction of all the land records is the November 28, 1871, agreement between Nancy Landon and Luiza Taylor, a legal instrument recorded in the Walker County Probate Court on March 21, 1879: The agreement does not convey an interest in the property; however, I do not find this fact to be dispositive. The agreément is reliable evidence. It even has all the formalities of a deed: It is signed .by both parties, witnessed by two parties, contains a metes- and-bounds description of the property, and is recorded in the deed book of the probate court. Why is this agreement, which clearly identifies the owner of the property as Nancy Landon, any less reliable than a quitclaim deed in determining the actual owner of the property after the destruction of all the relevant land records?

I also present the following hypothetical to demonstrate the danger of adopting the majority’s position of divesting the trial court of discretion to consider admissible evidence for the purpose of establishing a new starting point under the Whitehead rule in cases such as the present one. Suppose in the present case that, instead of the recorded agreement, Nancy Landon had recorded an affidavit concerning the ownership of the property. Assume that Nancy Landon had, at some time before the courthouse was destroyed and with it all of the land records, obtained an easement over her neighbor’s property. Also assume that Nancy Landon recorded the instrument conveying to her the easement before the land records were destroyed. The land records are then destroyed by fire. Suppose that Nancy Landon and the subservient property owner did not have a copy of the instrument conveying to Nancy Landon the easement to re-record. However, after the land records were destroyed, wanting to protect their respective interests, assume that Nancy Landon and the subservient property owner recorded a joint affidavit in the probate court stating that Nancy Landon owned her property and had obtained an easement over the property of the subservient property owner sometime prior to the destruction of the courthouse and the iand records.

Adopting the majority’s strict application of the Whitehead rule, the trial court would not be allowed to consider 'this admissible evidence concerning the actual ownership of the property for purposes of establishing a new starting point. I do not see the wisdom- in adopting such a strict application of the Whitehead rule. I suggest that allowing courts to consider evidence beyond recorded deeds in order to determine the owner of the property following the destruction of all records is consistent with the spirit of the Whitehead rule.

Under the actual facts of the present case, the November 28, 1871, agreement precedes the May 14, 1883, deed, which was not recorded until March 8,1884; it is the first documentary evidence concerning the ownership of the property following the alleged destruction of all the records concerning the conveyances of property in Walker County. Accordingly, as did the circuit court, I would apply the Whitehead rule in the present case to presume that Nancy Landon, not Elizer Taylor, owned a fee-simple interest in the property.

The practical result of my approach would be that Elizer Taylor’s deed to Mus-grove Bros, did not sever the mineral interest from the property because, at that time, Elizer Taylor had no interest in the property to convey. Therefore, I would affirm the circuit court’s judgment against Simmons Group. However, I do not agree with the circuit court’s judgment in favor of the O’Rear defendants because I believe that Simmons Group has demonstrated that the trial court erred in determining that “Chilton was the owner of the property in fee by adverse possession as of 1921.” .The evidence in the record does not support the trial court’s conclusion. Therefore, having concluded that the mineral interest had never been severed from the property, I would send the matter back to the circuit court and allow it to conduct further fact-finding in light of this holding. The property remaining one entire “bundle of sticks,” either party could then establish ownership of the property through the principle of adverse possession of the surface.

Stuart, J., concurs.

      . The original owner of the disputed interest was John W. Landon, who acquired the property by patent from the United States government in 1858.

      . When the mineral interest in a property is severed from the surface estate, adverse possession of the surface does not constitute adverse possession of the mineral interest. Sanford v. Alabama Power Co., 256 Ala. 280, 288, 54 So.2d 562, 569 (1951) ("To acquire by adverse possession the title to the mineral interests so severed, there must be an actual taking or use under claim of right of the minerals from the land for the period necessary to affect the bar.”).

      . When the mineral interest has not been severed from the surface estate, adverse possession of the surface is sufficient for adverse possession of the mineral interest. Black Warrior Coal Co. v. West, 170 Ala. 346, 351, 54 So. 200, 201 (1910) ("Had [the adverse possessor not attempted to sever] the coal and mineral interest in said lands ... there could be no question but that his adverse possession would have ripened into a perfect title to the entire interest in the land several years before his death.” (emphasis added)).

      . We say "purports to convey” because in lost-chain-of-title cases it is not possible to unequivocally determine the true owner of the disputed property at the time of the first-recorded conveyance. Indeed, this is' the problem the Whitehead rule is intended to remedy.

      . "While the legal title to real property can be shown by a valid deed, the record title is the highest evidence of ownership of real property and is not easily defeated.” 63C Am. Jur. 2d Property § 39 (2009) (emphasis added).

      . Furthermore, the 1871 agreement cannot itself serve as the presumed beginning point of the chain of title under Whitehead. The agreement is executory in nature and does not purport to convey an interest in the Landon parcel.

      . Section 35-4-70, Ala. Code 1975, governs the admissibility of affidavits as evidence in litigation over title to land and states that affidavits "shall be admissible as evidence of the facts therein recited and shall be sufficient to prima facie establish such facts.” (Emphasis added.)

      . Not surprisingly, given that the Whitehead rule has been applied only once, Jesse Evans’s Alabama Property Rights and Remedies, the preeminent property treatise in the state, does not cite Whitehead or provide any discussion of the Whitehead rule. I have researched cases from other jurisdictions and have not discovered any uniform rule concerning disposition of property given the situation raised in this case; Rather, in such a situation the various states have appeared to develop differing rules based on the specific facts before the respective courts.

      . I . note that the majority decision includes the following statement:
      "Of course, the Whitehead rule does nothing to disturb the basic property rule that a grantor cannot convey more than the grantor actually owns. See, e.g., Chancy v. Chancy Lake Homeowners Ass'n, Inc., 55 So.3d 287, 297 (Ala. Civ. App. 2010)(stating that ‘[a] landowner cannot convey a greater interest in property than he possesses’). Thus, proof that the grantor of the flrst-recorded deed did not actually own the property at the time of the purported conveyance will defeat the presumption underpinning the Whitehead rule. O’Rear, however, presents no such proof.”
      233 So.3d at 339. However, based on its interpretation of the Whitehead rule, the only evidence contemplated by the majority that may be considered by the trial court concerning ownership of. the property is a recorded deed.

      . The earliest recorded instrument in Whitehead was a quitclaim deed, which does not always convey an interest in property. Of course, “if a grantor in a quitclaim deed has a good legal title, the quitclaim is as effectual to pass the title as a warranty deed.” Jesse P. Evans III, Alabama Property Rights and Remedies § 4.5 (5th ed. 2012). However, "[a] quitclaim conveys nothing more than the interest owned by the grantor at the time of this execution and no more.” Id. Further,
      “[a] quitclaim deed purports to convey only the grantor's present interest in the land, if any, rather than the land itself. Since such a deed purports to convey whatever interest the grantor has at the time, its use excludes any implication that he has good title, or any title at all. Such a deed in no way obligates the grantor, If he has no interest, none will be conveyed.”
      Robert Kratovil and Raymond J. Werner, Real Estate Law 60 (8th ed. 1983) (final emphasis added).

      . Nancy Landon’s agreement with Luiza Taylor was recorded on March 21, 1879, more than four years before Elizer Taylor executed the May 14, 1883, deed in favor of Musgrove Bros. This Court has stated that "[t]he purpose of recording is to affect purchasers subsequent to the recording ... with notice.” Williams v. White, 165 Ala. 336, 337, 51 So. 559, 559 (1910); see also Jesse P. Evans III, Alabama Property Rights and Remedies § 5.3[a] (5th ed. 2012) ("[T]he recording of an instrument under the recording statutes is conclusive notice to any third person of everything that appears on the face of an instrument so recorded.”(footnote omitted)). As the earliest recorded instrument, the agreement put Elizer Taylor, Musgrove Bros., and all other third parties on notice of the fact that Nancy Landon claimed fee-simple ownership of the property.


author: MURDOCK, Justice.

text:
    EX PARTE MARSHALL COUNTY DEPARTMENT OF HUMAN RESOURCES (In re: Marshall County Department of Human Resources v. J.V.)
    1151039
    Supreme Court of Alabama.
    March 31, 2017

      See also 152 So.3d 370; 203 So.3d 1243.
    Luther Strange, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, ásst. atty. gen., Department of Human Resources, for petitioner Marshall County Department of Human Resources.
    Shane Hollaway, Guntersville, for respondent.
   MURDOCK, Justice.

J.J.V. (“the child”) is the daughter of J.V. (“the father”). The Marshall County Department of Human Resources (“DHR”) has filed with this Court a petition for a writ of mandamus by which it seeks an order directing the Marshall Juvenile Court to set aside or vacate its order of April 3, 2016, addressing the transfer of legal custody and physical custody of the child to the father.

The child was born in October 2006. The pertinent facts, as summarized in an earlier Court of Civil Appeals’ opinion involving the same parties, are as follows:

“In 2009, the Marshall County Department of Human Resources (‘DHR’) removed J.J.V. (‘the child’) from the custody of M.M.T. (‘the mother’). At that time, the child’s father, J.V. (‘the father’), was living-in Florida, where the child and the mother "had resided until the mother left, the father.[] The father came to Alabama to locate the mother and the child only to learn that DHR had removed the child from the mother’s home.
“The father, without the aid of counsel, attempted to work with DHR, and he briefly reunited with the mother. However, when a DHR: caseworker informed him that the child would not be returned to the parents if they resided together, the father left the mother’s residence. The father retained an attorney and secured supervised visitation with the child in the fall of 2010. In December 2010 and January 2011, the father was granted unsupervised visitation with the child; he had a total of five unsupervised visits with the child.
“On January 8,2011, a few hours after the child had returned from an unsupervised visit with the father, the child’s foster parents . contacted the child’s DHR caseworker, who was, at that time, Tracy Burrage. B.B. (‘the foster father’) told Burrage that the child had reported that the father had ‘hurt her butt.’ At Burrage’s instruction, the foster parents took the child to the emergency room, which then referred the child to Crisis Services of North Alabama for an examination by a forensic nurse examiner.
“After the accusation, the father’s visitation was changed to supervised visitation. The child cried and said that she did not want to attend visits with the father. When at the visits, the child barely interacted with the father.
“In October 2011, the father was charged with sexual abuse. He was arrested and placed in the Marshall County jail, where he remained for approximately 18 months. DHR filed a petition to terminate the father’s parental rights; however, the juvenile court denied that petition. DHR appealed, and this court reversed the juvenile court’s judgment declining to terminate the father’s parental -rights and remanded the cause for the juvenile court to reconsider DHR’s termination-of-parental-rights petition based on the evidence already adduced at trial, indicating in opr opinion that the juvenile court had perhaps mistakenly believed that late perfection of service of process on the father had prevented the juvenile court from considering the termination-of-parental-rights petition at the time of the termination-of-parental-rights trial. See Marshall Cty. Dep’t of Human Res. v. J.V., 152 So.3d 370 (Ala. Civ. App. 2014). On remand, the juvenile court entered another judgment declining to terminate the father’s parental rights; no appeal was taken from that judgment.”

Marshall Cty. Dep’t Human Res. v. J.V., 203 So.3d 1243, 1244-45 (Ala. Civ. App. 2016)(“J,V. I”).

In August 2013, the father agreed to submit to a polygraph examination in the criminal proceeding arising from the sexual-abuse charge. The results from that examination indicated that the father provided truthful answers to the questions posed to him. Based'on those results, the sexual-abuse charge against the father was dismissed with prejudice on February 11, 2014. Thereafter, the father, who was an illegal immigrant, was transferred to a Louisiana detention facility.

The father was released from the detention facility in September 2014 after his immigration status was changed to “an alien lawfully admitted for permanent residence.” 8 U.S..C. § ,1229b(b)(l). The father then moved to Canton, Georgia, where his sister resided. The Court of Civil Appeals in J.V. I summarized the procedural history as follows:

“The father filed a petition in the juvenile court on November 6, 2014, seeking an award of custody of the child. After a three-day hearing in December 2014, the juvenile court entered an order on December 29, 2014, stating the following:
“‘1. This matter is set for further review on disposition on January 20, 2015, at 9:00 a.m.
‘2. At that time, DHR shall:
‘“a. Present a plan to transition physical custody of the child to her father by the time the child completes her spring semester of school. This plan shall include the name of a licensed psychologist near the father’s residence in Georgia who can counsel the child and the father. This plan shall also include a proposal of gradually increased visitation, which visitation schedule shall take into account the father’s work schedule.
“‘b. Present a home study of the father’s residence in Georgia.
“‘3. Between now and January 20, 2015, DHR shall ensure that the father is able to visit with his child as frequently as once per week for a period of no less than two hours. These visitations may be supervised by DHR. The visitations shall be at times when the father is not working. The foster parents shall not attend the visitations or provide transportation to the visits.
“ ‘4. DHR shall pay the costs of any home study, and until further Orders, any and all counseling fees.
“ ‘5. On January 20, 2015, the father shall present photos of his house— both inside and out. At that time the father shall identify the school the child would attend, should the child live in the house. Also, the father should describe the provisions he will make for child care when he is at work and the child is not in school.’”

J.V. I, 203 So.3d at 1245-46.

The January 20, 2015, review hearing was rescheduled. On March 27, 2015, the juvenile court entered an order incorporating the transition plan that had been created by the parties and setting the matter for further review on May 12, 2015. The March 2015 order further stated:

“ ‘It is the intention of the parties and Court upon the receipt of an approved Home Study from Georgia that the father’s visits with his child shall transition to supervised visitation in his home. The Marshall County Department of Human Resources has agreed to provide a Spanish interpreter in addition to an in home service provider. The father’s visitation shall be as [set out in the following omitted subparagraphs]:
“ ‘... On June 12, 2015, physical custody of the minor child shall be placed with her father pending further Order of the court.
“ ‘... The child and father shall continue to participate and cooperate with counseling with Dr. Eassa, a licensed psychologist.’ ”

J.V. I, 203 So.3d at 1246. The Court of Civil Appeals continued:

“After the review hearing was held on May 12, 2015, an amended order regarding the transition plan was entered on May 18, 2015. The May 2015 order, like the March 2015 order, set out the specific transition plan and stated that the child would be permanently transitioned to the father’s physical and legal custody no later than July 27, 2015. The May 2015 order also contained the following provisions referencing a home study.
“ ‘3. It is the intention of the parties and Court upon the receipt of an approved Home Study from Georgia through the Interstate Compact [on the Placement of Children (“ICPC”), codified at Ala. Code 1975, § 44-2-20 et seq.], that the father’s visits with his child shall transition to supervised visitation in his home.
“ ‘4. On July 27, 2015, physical custody of the minor child shall be placed with her father pending further Order of the Court upon the receipt of an approved Home Study, from Georgia through the ... ICPC.’
“On June 23, 2015, DHR moved for an evidentiary hearing. In its motion, which was amended June 30, 2015, DHR alleged that the home study conducted pursuant to the Interstate Compact on the Placement of Children (‘the ICPC’), codified at Ala. Code 1975, § 44-2-20 et seq., had not been approved and that the child was not prepared to transition to the home of the father on July 27, 2015. The juvenile court held a hearing on July 2, 2015, at which the parties presented testimony regarding the progress of the father and the child toward reunification and the basis for the disapproval of the ICPC home study.”

J.V. I, 203 So.3d at 1246-47. We note that the home study submitted by the Georgia Division of Family and Children Services reflects that the father resided with his sister and her four children in a six-bedroom townhome that was adequate for the child. The home, study notes that “[t]he room identified for [the child] is painted pink and has a full size bed with night stand and chest of drawers. There is bedding on the bed. The closet in the room is empty. It would be sufficient in size and space for an 8 year old child.” The home had not been approved, however, because of concerns about the above-referenced sexual-abuse charges against the father and because of concerns that the father was single and worked full time, that he had never parented independently, that continued therapy was needed to strengthen the child’s relationship with the father, and that the father’s financial stability could not be verified to the satisfaction of the person conducting the home study.

On July 2, 2015, the juvenile court entered a “Transition Review Hearing Order,” which states:

“1. The physical transition of the child to the child’s father shall occur absolutely no later than the previously agreed upon date of July 27, 2015. The occurrence of this final transition is no longer conditioned upon anything. .
“2. Between this date and July 27, 2015, the Department of Human Resources shall continue to provide the services set out in previously agreed to Orders.
“3. For a period of one year after July 27, 2015, the father and the child shall continue counseling with Dr. Elaine Eassa. The Department of Human Resources shall be responsible for the costs of said- counseling sessions for the first six months of said year. The father of the child shall be responsible for the costs of the counseling sessions for the second six months of the year. The Department of Human Resources, the Guardian ad Litem and the father’s attorney shall be provided copies of the progress reports from the counselor. The frequency of the counseling sessions shall not- be more frequent than the frequency to date, but at the discretion of the counselor, the frequency of the counseling sessions may be reduced during the counseling period.
“4. In an effort to be perfectly clear, all physical custody, all legal custody and all authority over the child shall be returned to the father no later than July 27,2015.”

DHR appealed the July 2015 order to the Court of Civil Appeals. See J.V. I. On appeal, DHR argued that the evidence did not support the juvenile court’s conclusion that the child should be returned to the father’s custody. The Court of Civil Ap-péáls rejected that argument, noting that “[t]he evidence in the record regarding the father’s ■ alleged abuse- of the child was sharply conflicting, and the juvenile court, not this court, is the proper arbiter of the factual disputes presented by the conflicting evidence.” 203 So.3d at 1253. The J.V. I court agreed with DHR, however, that

“the juvenile court’s order that the child be returned to the custody of the father no later than July 27, 2015, is not in' the child’s best interest.”

203 Só.3d at 1253. That court stated:

“To support the July 2, 2015, judgment ordering the transition of custody to occur no later than July 27, 2015, the juvenile court must have determined that reuniting the child- with the father immediately would serve the child’s best interest. We agree with DHR that the record lacks evidence that would support the finding that the child’s best interest would be served by placing her in the custody of the father without further transitioning. ■
“The record is replete with evidence indicating that the child believes that the father abused her, that she fears the father, and that she does not want to be alone with the father, much less be placed in his custody. According to Dr. Eassa, the child has indicated that she might run away or possibly harm herself if forced to spend time alone with the father. The evidence presented at both the December 2014 hearing and July 2Q15 hearing further indicates that the ■child treats the father with disrespect, including going so far as to throw rocks at him, or indifference and establishes that she feels no familial affection for him. Similarly, the evidence indicates that the father is not fully prepared to handle the behavior the child is expected to display if she is placed in his custody; Dr. Eassa testified that the father would often ignore the child’s misbehavior and give in to the child. Placing a child who is expected to display oppositional and defiant behaviors with a father who is ill-prepared' to handle those behaviors would not serve the child’s best interest. At this time, the father and the child do not have a relationship strong enough to accomplish the transition of custody.
“The record does not support a conclusion that the child’s best interest would be served by immediately awarding custody to the father. Both the child and the father would be ill-served by a transition of custody at this time and under these circumstances. Accordingly, we reverse the judgment of the juvenile court insofar as it ordered an immediate transfer of the child’s custody to the father, and we remand the cause for proceedings consistent with this opinion.”

203 So.3d at 1253-54.

On remand, DHR and the father again agreed to a transition plan as to custody of the child. On April.3, 2016, the juvenile court entered an order incorporating that plan, which included increasingly longer periods of .visitation. The order provided that the father was to have supervised visitation at his home beginning on April 2, 2016, with a transition to periods of unsupervised visitation over the next few weeks. Beginning on April 29, 2016,- the father was to have unsupervised overnight visitation at his home, increasing to multiple days of unsupervised visitation over the next few weeks. The order then stated:

“2. On July 1, 2016 legal and physical custody of the minor child ... shall be transferred to her father .... '
“3. The child and father shall continue to participate and cooperate with counseling with Dr. Eassa, a licensed psychologist.
“4. The child and father shall participate in language classes to assist with communication.
“5. The Marshall County Department of Human Resources shall supervise the custody and placement of the minor child and father after July 1, 2016 for three (3) months.
“6. This matter is set for further review on disposition on October 3, 2016 at 9:00 a.m.”

On May 24, 2016, DHR filed a “Motion for Emergency Order to Cease Visitation Before May 27, 2016” in the juvenile court. The motion alleged that,

“[i]n early May, 2016, for the second time, [the child] attempted to harm herself by.cutting herself to avoid having to be with the father (the first incident was her attempt to electrocute herself). She has also threatened to run away from his home. Her behaviors indicate that her safety is at risk at the father’s home. Despite regular counseling sessions with Dr. Eassa, the child’s conduct or condition is not improving, but rather, is worsening. According to the foster parent, [the child] has exhibited disturbing behaviors, to wit: she cut herself intentionally because she said she would rather live in a hospital than with her father; she refused to bathe, brush her teeth, brush her hair, or have a bowel movement at her father’s home; she refused to eat food prepared at her father’s ■home; and she has become more withdrawn at school and at the foster home. The effect of forced visitation has been harmful to the child.” • ■

The “Motion for Emergency Order to Cease Visitation Before May 27, 2016” further referenced a report prepared by Lois W. Petrella, a clinical psychologist who had evaluated the child on May 13, 2016. A copy of the report was attached to the motion. According to the report, the child

“has consistently been resistant to visits with her biological father, whom she refers to as ‘J—.’ She continues to assert that he sexually molested her, that she is afraid that he will hurt her again, and that she wants nothing to do with him. Regarding her biological father, [the child] stated, ‘I don’t usually talk to him.’ She explained that she does not like him because, ‘He hurt me a long time ago when I was little—he hurt me in my privates.’ She was adamant that she does not want to see her biological father again. She stated she does not like to talk about her father or the abuse, and kept herself distracted during this line of questioning, e.g., exploring the office, playing with puzzles, trying to change the topic, etc. She stated, ‘I don’t like going there,’ indicating that she feels as though ‘people’ make her go there against her will. She stated, ‘I want to live with [the foster parents].’ She said she feels ‘sad’ and ‘mad’ about being forced to visit and ultimately live with her biological father. She explained, ‘I don’t play with kids right when I get there, but after a little while I start playing with them.’ The children [the child] was referring to are her cousins .... She explained that she eventually starts to play with them because, ‘it’s either that or be bored.’ ”

The report notes that the child “reportedly has never been hospitalized for psychiatric purposes and has no history of taking routine psychiatric medications.” The report further notes that the child

“stated that she cries ‘sometimes, when I have to leave my mommy,’ referring to [the foster mother], and that she is always sad ‘whenever I have to leave my mommy and daddy.’ She has concentration problems and distracted herself in various ways when reporting her history, particularly when the subject was her biological father. Her affect was different when discussing her father, and at times she appeared to be dissociative. [The child] showed the examiner a cut on her finger and explained, ‘It happened when I was at [the father’s] house—I picked up a can and just cut myself.’ She said she did this intentionally because, ‘It would be better living in a hospital instead of having to live with him—that’s my opinion.’ She reported that on another occasion, T got tweezers and I stuck it in a cord and it made a shock, which was not smart to do.’ She explained, ‘That was when I was with [the foster parents] ‘cause I wanted to go to the hospital.’ She said she would intentionally harm herself if she is forced to go back to [the father’s] house. She has also threatened to run away if she is forced to go to live with him.”

Petrella concluded in her report that the child was “experiencing some paranoia about her father, as well as passive suicidal ideation.” The report concludes:

“The transition from foster care to her biological father’s custody would be detrimental to [the child’s] health and safety. This child firmly believes that [the father] sexually molested her when she was younger, and clearly she still seems to fear him. Additionally, since she apparently has not yet bonded with her biological father after all of his encouragement, it appears unlikely that she will do so in the future.
“Regressive behaviors, i.e., regression to a previous stage of development, would be expected if [the child] is forced into a relationship with her biological father. Such behaviors might include reverting to baby talk, a decline in grades at school, lack of self care, and possibly more serious problems such as enuresis or encopresis. This becomes increasing important since [the child] soon will be entering another developmental stage, adolescence, which can be difficult for parents and children alike under the best of circumstances.
“Since [the child] has already made two small but significant attempts at self-harm and has thought of plans to run away from her biological father’s home, it certainly is possible that continuing extended visits and/or placing her in her biological father’s care would pose a threat of harm to herself or others. For the child’s health and safety, and continued emotional development, it would be in [the child’s] best interest if the visits were terminated.”

The “Motion for Emergency Order to Cease Visitation Before May 27, 2016” requested that the juvenile court enter an emergency order “ceasing visitation between the child and the father” and that the juvenile court “enter an Order continuing the minor child in the custody of [DHR].” The juvenile court denied the “Motion for Emergency Order to Cease Visitation Before May 27, 2016,” and it denied a motion DHR had filed seeking to stay the impending May 27 through May 30, 2016, visitation with the father.

On May 26, 2016, DHR filed an emergency motion to stay and a petition for the writ of mandamus in the Court of Civil Appeals. Ex parte Marshall Cty. Dep’t Human Res., 234 So. 3d 519 (Ala. Civ. App. 2016)(“J.V. II”). In denying that petition, the Court of Civil Appeals stated:

“The mandamus petition seeks an order from this court compelling the juvenile court to ‘terminate visitation between the child and the father,’ based on the premise that the juvenile court abused its discretion in not terminating visitation as requested. This court granted the stay pending resolution of this petition, which we now deny.
“DHR cannot show a clear legal right to the relief it seeks in its petition. The visitation of which DHR now complains is not true visitation. The visitation awarded in the April 3, 2016, order is transitional visitation aimed at preparing the child for the transition of custody to the father. DHR’s request that we order the juvenile court to ‘terminate’ the father’s visitation is in essence a request that we order the juvenile court to modify the award of custody to the father.
“However, this court has affirmed the award of custody of the child to the father. J.V., 203 So. 3d at 1253. DHR did not seek certiorari review of this court’s February 26, 2016, decision. The award of custody to the father has therefore become the law of the case. Ex parte S.T.S., 806 So.2d 336, 341 (Ala. 2001).
“‘The issues decided by an appellate court become the law of the case on remand to the trial court, and the trial court is not free to reconsider those issues. Murphree v. Murphree, 600 So.2d 301 (Ala. Civ. App. 1992). According to the doctrine of the law of the case, “whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.” Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala. 1987).’
“Ex parte S.T.S., 806 So.2d at 341. The child’s custody is to be vested in the father at the completion of the transitional period, and the juvenile court is not free to alter the custody award merely upon motion of the parties.
“DHR’s allegations that the child has .harmed herself and has threatened to run away from the father’s residence, although nearly identical to testimony presented at the July 2016 evidentiary hearing before the entry of the July 2, 2015, judgment giving rise to the appeal in J.V. [I], are, in fact, allegations, presumably supported by new evidence, regarding the child’s best interests. The juvenile court may consider those allegations and any such new evidence in a modification action. However, DHR’s attempt to present new evidence to alter the award of custody in this action cannot.succeed.
“Accordingly, DHR’s petition for the writ of mandamus is denied. This court’s stay order is lifted.”

234 So. 3d at 520-21.

On May 27, 2016, while the mandamus petition in J.V. II was pending in the Court of Civil Appeals, DHR filed in the juvenile court a “Motion to Set Aside Custody Order.” DHR made similar' allegations to those set'forth in its “Motion for Emergency Order to Cease Visitation” and again referenced the report prepared, by Petrella. The “Motion to Set Aside Custody Order” alleged that there “ha[d] been a material change in circumstances and that it [was] in the child’s best interests that the prior order awarding legal and physical custody of the child to the father be set aside,” (Emphasis added.) DHR requested that the April 2016 order awarding the father custody be set aside and that the juvenile court order that the child remain in DHR’s custody.

On June 24, 2016, before the decision in J.V. II was issued, DHR filed a second petition for a writ of mandamus in the Court of Civil Appeals. The second petition was assigned case no. 2150795. The second petition noted that no further visitation had occurred between the father and the child after the Court of Civil Appeals granted DHR’s motion' to stay while J.V. II was pending. The second petition continued:

“But currently there is no order preventing or stopping the transfer of custody of the child to the father on July 1, 2016. On May 27, 2016, DHR' filed a Motion to Set Aside Custody Order in the juvenile court asserting that the new evidence that the child’s emotional and. physical health is at risk and a transfer of custody to the father is contrary to the child’s best interests. The trial court failed to conduct a hearing on said motion and failed to enter any order on the motion.”

(Emphasis and reference to exhibit omitted.) DHR requested that the Court of Civil Appeals order the juvenile court to set aside its April 2016 order awarding custody to the father and that that Court consolidate the second petition with the petition then pending in J.V. II.

The Court of Civil Appeals did not enter a order consolidating DHR’s petitions. On July 1, 2016, the Court of Civil Appeals issued its decision in J.V, II. Also on July 1, 2016, the Court of Civil Appeals issued an order in case no. 2150795 denying DHR’s second petition for a writ of mandamus and denying a motion to stay DHR had filed with its second petition.

DHR then petitioned this Court for a writ of mandamus, and DHR filed a -motion to stay the custody transfer scheduled for July 1, 2016. This Court granted the motion to stay pending our resolution of the petition for a writ- of mandamus. In its petition, DHR seeks an order from this Court directing that the April 2016 order “transferring legal and physical custody of [the child] to [the father] on July 1, 2016” be vacated or set aside.

As this Court has stated:

“Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.”

Ex parte Integon Corp., 672 So.2d.497, 499 (Ala. 1995).

The Court of Civil Appeals erred as to its conclusion in J.V. II that “the juvenile court is not free to alter the custody award merely upon motion of the parties,” 234 So. 3d at 521, and that DHR must file a new action in order to present evidence to the juvenile court as to facts that arose after the entry of the . April 2016 order. The underlying proceeding is a dependency case and, as discussed in note 3, supra, “[u]nlike many other types of cases, dependency proceedings often involve a series of appealable dispositional custody orders.” S.P. v. E.T., 957 So.2d 1127, 1131 (Ala. Civ. App. 2005). Although, .the April 2016 order at issue purported to award legal custody and physical custody of the child to the father as of July 1,2016, that order further provided:

“3. The child and father shall continue to participate and cooperate with counseling with Dr. Eassa, a licensed psychologist.
“4. The child and father shall participate in language classes to assist with communication.
“5. The Marshall County Department of Human Resources shall supervise the custody and placement of the minor child and father after July 1, 2016 for three (3) months.
“6. This matter is set for further review on disposition on October 3, 2016 at 9:00 a.m.”

In light of foregoing “restrictions”' as to the custody award to the father, it is clear that the juvenile court did not intend the April 2016 order “to be its ‘final’ disposi-tional order as to the pending case,” “free from any intervention or supervision by the state under the' dependency statutes” and regardless of what might transpire— or fail to transpire—during the transition of custody. 957 So.2d at 1131. See also Ala. Code 1975, § 12-15-102(8)a.8 (providing that a “dependent child” 'includes a child “[w]ho ... is in need of the care and protection of the state”);' Ala. Code 1975, § 12-15-314(a) (“If a child is found to be dependent, the juvenile court may make any of the following orders of disposition to protect the welfare of the child: (1) Permit the child to remain with the parent, legal guardian, or other legal custodian of the child, subject to conditions and limitations as the juvenile court may prescribe. . ;. (4) Make-any other order as the juvenile court in its discretion shall deem to be for the welfare and best interests of the child.”).- Thus, the juvenile court was free to take into account evidence regarding matters occurring after the entry of its April 2016 order and before any order it might issue on -October 3, 2016, in determining whether a modification of the terms of transition was warranted. For example, the juvenile court was free to take into account the failure of-transitional efforts (which it had previously ordered) to achieve the results that were contemplated by it and that would be necessary for an eventual transfer of custody that would serve the child’s best interest.

. Presiding Judge Thompson commented in his dissenting opinion in J.V. II that the decision in J.V. I

“reversed that part of the judgment of the Marshall Juvenile Court (‘the juvenile court’) transferring immediate custody of J.J.V. (‘the child’) to J.V. (‘the father’) because of our concern for the welfare and safety of the child and to allow a more appropriate relationship between the father and the child to develop. [J.V. L] This court held that the father and the child did not ‘have a relationship strong enough to accomplish the transition of custody* and that ‘[bjoth the child and the father would be ill-served by a transition of custody at this time and under these circumstances.’ [J.V. I], 203 So.3d at 1254.
“Following this court’s decision in [J.V. I], the parties arrived at and the juvenile court sanctioned a ‘visitation plan to transition to legal and physical custody of the child to the father, which began with supervised visitation and gradually increased to unsupervised, overnight visitation. The ultimate goal of the transition was to have the father assume legal and physical custody of the child on July 1, 2016. The transition plan also provided that ‘[t]he child and [the] father shall continue to participate and cooperate with counseling with Dr. [Elaine] Eassa, a licensed psychologist.’
“In its petition for a writ of mandamus filed in this court, the Marshall County Department of Human .Resources (‘DHR’) alleges that certain events have occurred during the transition period, and it requests that this court order the juvenile court to ‘cease visitation in order to preserve the health and safety of the child.’ In support of its petition, DHR presented evidence indicating that Dr. Lois W. Petrella, a licensed psychologist, evaluated the nine-year-old child in mid-May 2016. Dr. Pe-trella diagnosed the child as having post-traumatic stress disorder, among other things. The child cut herself with a can while visiting her father and attempted to shock or electrocute herself in order to avoid being forced to visit the father. This child has also stated that—at nine years of age—she has had thoughts of suicide when faced with having to visit the father. The evidence presented in [J.V. I] indicated that, because the Georgia home study regarding the father’s home had not been approved, the Georgia child-protection agency would not monitor the family in connection with this case when the child visits the father or after the child is placed in the father’s custody in Georgia.
“Regardless of whether this court affirmed the initial award of custody to the father, the juvenile court possesses the power to halt visitation based upon the best interests and welfare of the child and to consider any properly filed modification action. Although I understand that the juvenile court is attempting to meet one of the goals of the Alabama Juvenile Justice Act (‘the AJJA’), § 12-15-101 et seq., Ala. Code 1975, by seeking to reunite the father and the child, I note that the AJJA requires that reunification be achieved in a manner that ensures the child’s safety. See § 12—15—101(b)(3), Ala. Code 1975 (A goal of the AJJA is ‘[t]o reunite a child with his or her parent or parents as quickly and as safely as possible when the child has been removed from the custody of his or her parent or parents unless reunification is judicially determined not to be m the best interests of the child.’).
“The evidence from the most recent psychological evaluation of the child is consistent with previous evidence indicating that the child has engaged in self-destructive behavior, and it appears to me that the situation has deteriorated rather than improved since the issuance of our last opinion. I can see no reason to alter my position that an immediate transfer of custody to the father is not presently in the best interests of the child. It is the function of the courts of this state to protect the children before them. J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1211 (Ala. Civ. App. 2007); C.S. v. Mobile Cty. Dep’t of Human Res., 166 So.3d 680, 684 (Ala. Civ. App. 2014). The juvenile court appears to have rejected the allegations that the father sexually abused the child. In any regard, whether the child needs protection from the father or not, it is clear that the child needs protection from her own potential conduct if she is forced to visit the father or transition to his home.”

234 So. 3d at 521-23 (Thompson, P.J., dissenting).

The materials before us support the above-stated concerns of Presiding Judge Thompson and raise a substantial question as to whether the father can communicate with and control the child in a manner sufficient to ensure her safety upon the transfer of custody to him. We note, however, that no evidentiary hearing was conducted by the juvenile court as to the matters raised by DHR in its May 2016 filings. Given the allegations made by DHR and the contents of the report prepared by Petrella, the clinical psychologist, the juvenile court could not conclude that the concerns raised by DHR and Petrella could be ignored as a matter of law. Instead, the juvenile court should have scheduled a hearing so that it could properly evaluate any evidence DHR might present (including any testimony from Pe-trella) as to the alleged change in the child’s circumstances after the entry of the April 2016 order. Ex parte Fann, 810 So.2d 631, 638 (Ala. 2001) (“It is the court’s duty to scrupulously guard and protect the interests of children.”).

Based on the foregoing, the petition is granted; the juvenile court’s order of April 3, 2016, transferring legal and physical custody of the child to the father is vacated.

PETITION GRANTED; WRIT ISSUED.

Stuart, Bolin, Parker, Shaw, Main, Wise, and Bryan, JJ., concur.

      . DHR's petition asks this Court to direct the Court of Civil Appeals to order the Marshall Juvenile Court to vacate the April 3, 2016, order. Because the Court of Civil Appeals denied DHR's petition for a writ of mandamus, we treat the petition to this Court as a petition seeking a writ directed to the trial judge. See Rule 21(e), Ala. R. App. P,

      . The father and the mother were not married.

      . In S.P. v. E.T., 957 So.2d 1127 (Ala. Civ. App. 2005), the Court of Civil Appeals noted:
      "Unlike many other types of cases, dependency proceedings often involve a series of appealable dispositional custody orders. Eventually the trial court enters an order in a dependency proceeding that is intended to be its 'final’ dispositional order as to the pending case, i.e., a custodial placement that is intended to be permanent, to the extent custody awards can be permanent. See Ex parte J.P., 641 So.2d [276,] 278 [ (Ala. 1994) ] ('by its very nature, custody is always temporary and never permanent' because it is always subject to change based upon an appropriate petition and evidence). Under ideal circumstances, such final dis-positional orders coincide with the end of the child's dependency, i.e., the child has a proper custodian 'and' is no longer 'in need of care or supervision’ by persons other than the custodian. See Ala. Code 1975, § 12-15-l(10)n, In other words, under ideal circumstances, the final dispositional order results in a custody award wherein the parent or custodian is able and willing to have the care, custody, and control of the child, free from any intervention or supervision by the state under the dependency statutes.”
      957 So.2d at 1131. Title 15 of Chapter 12, Ala. Code 1975, has been significantly amended and renumbered, See Ala, Code 1975, § 12— 15-102(8)a.8 (providing that a "dependent child” includes a child "[w]ho ... is in need of the care and protection of the state.”). See also Ala. Code 1975, § 12-15-314(a) ("If a child is found to be dependent, the juvenile court may make any of the following orders of disposition to protect the welfare of the child: (1) Permit the child to remain with the parent, legal guardian, or other legal custodian of the child, subject to conditions and limitations as the juvenile court may prescribe. ... (4) Make, any other, order as the juvenile court in its discretion shall deem to be for the welfare and best interests of the child.”).

      . In its petition to this. Court, DHR states that "[t]he trial court failed to conduct a hearing on said motion and failed to enter any order on the motion.” We note that the motion did not include a request for a hearing.