text:
    REEVES CONSTRUCTION & SUPPLY, INC., A Corporation, and Ken Reeves d/b/a Reeves Construction, Appellants, v. Kate CORRIGAN, Appellee.
    No. 2008-CA-01072-COA.
    Court of Appeals of Mississippi.
    Jan. 5, 2010.

      Brandon Larue Brooks, Hattiesburg, attorney for appellants.
    M. Ronald Doleac, Hattiesburg, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. This appeal evolved from a dispute involving a contract between Reeves Construction Company, Inc. (Reeves, Inc.) and Kate Corrigan for repair work that Reeves, Inc. was to perform on Corrigan’s home in Hattiesburg, Mississippi. After Reeves, Inc. had performed a portion of the work contemplated by the contract, a dispute arose, and as a result, Corrigan refused to pay Reeves, Inc. for any further work. Ken Reeves, the principal owner of Reeves, Inc., filed a notice of construction lien against Corrigan’s property. Reeves did not file the notice of construction lien in his capacity as an agent of Reeves, Inc. Instead, Reeves filed it under his own name as an individual. Corrigan sued Reeves, Inc. and “Ken Reeves d/b/a Reeves Construction.” Corrigan raised causes of action for breach of contract, false notice of a construction lien, and slander of title. Reeves responded with an answer and a counterclaim to enforce the previously-filed construction lien.

¶ 2. After other procedural matters, which will be discussed in greater depth as necessary, Corrigan filed a motion for summary judgment. Corrigan did not claim that she was entitled to summary judgment because Reeves could not demonstrate the existence of a genuine issue of material fact regarding his counterclaim. Instead, Corrigan claimed that she, as the plaintiff, was entitled to summary judgment incident to her claims for false notice of a construction lien and slander of title. After a hearing on the matter, the Forrest County Circuit Court found that it was undisputed that there was no contractual relationship between Reeves, individually, and Corrigan. Accordingly, the circuit court found that there was no genuine issue of material fact that Reeves “wrongfully” filed his notice of construction lien against Corrigan’s property. The circuit court went on to find that Corrigan was entitled to statutory damages against Reeves. However, the circuit court denied Corrigan’s request for summary judgment incident to Corrigan’s cause of action for slander of title. Reeves appeals and claims the circuit court erred when it granted Corrigan’s motion for summary judgment incident to her claim for false notice of a construction lien. However, after careful consideration, we find that the circuit court improvidently granted a final judgment pursuant to Mississippi Rule of Civil Procedure 54(b). Accordingly, we dismiss this appeal for lack of jurisdiction.

FACTS AND PROCEDURAL HISTORY

¶ 3. “Reeves Construction” submitted an estimate of $46,500 to perform numerous interior and exterior repairs of Corrigan’s home. Later, Reeves, Inc. and Corrigan entered into a contract for repair work to Corrigan’s home after her home sustained damage caused by Hurricane Katrina. Corrigan agreed to pay Reeves, Inc. $46,500. Among other things, Reeves, Inc. agreed to replace Corrigan’s roof. On February 15, 2006, Corrigan made a partial payment of $26,181.05 to “Reeves All Pro Roofing” for work that had been completed up to that time. On that same date, per Corrigan’s request, Reeves executed a release of lien for $26,181.05. The release of lien document was in the name of “Ken Reeves, All Pro Roofing” or “Reeves All Pro Roofing.”

¶ 4. The record is not entirely clear as to the events that transpired after February 15, 2006. However, it is clear that the relationship between Corrigan and Reeves soured. On March 2, 2006, Corrigan sent a letter to “Reeves All Pro Roofing.” In that letter, Corrigan referenced a letter that her daughter-in-law had sent to Reeves on February 23, 2006. That letter does not appear in the record. However, Corrigan’s March 2, 2006, letter indicated that it was a “list of work remaining and [a] punch list for [her] home.” Corrigan also stated that she had “requested [the] schedule by 26 February for completion of the work” and that “[t]o date, I have not received that schedule.” Additionally, Corrigan informed Reeves that he had “three days to complete this work or [he would] be released from [his] contract for non-performance.”

¶ 5. On March 4, 2006, Corrigan sent another letter to “Mr. Reeves” at “Reeves All Pro Roofing.” In that letter, Corrigan stated that: “As of the date of this letter[,] you are hereby dismissed from your responsibilities per our contract signed 25 January 2006 due to your default of the terms of the contract, failure to meet the schedule, and failure to perform the required work in the contract.” Corrigan also informed Reeves that he was “dismissed due to default in the terms of the contract by [his] failure to obtain a permit for the work on [Corrigan’s] home at the start of the job. [The] permit was not obtained until 3 March, well after the start of the work in January 2006 and the completion of the roof and structural [sic] on 15 February 2006.” Corrigan included a list of repairs that she considered incomplete. Corrigan went on to state that “[t]he balance of payment to Reeves as of the date of this letter is $10,148.16, which includes the siding and the above outstanding items.”

¶ 6. According to the record, the next notable event occurred on March 9, 2006, when Reeves filed a notice of construction lien against Corrigan’s property for $12,450. Reeves, acting pro se, did not file the notice of construction lien on behalf of Reeves, Inc. or “Reeves All Pro Roofing.” Instead, Reeves filed on behalf of “Ken Reeves d/b/a Reeves Construction.”

¶7. Approximately five months later, Corrigan filed a complaint in the Forrest County Chancery Court. As mentioned, Corrigan raised causes of action for breach of contract, false notice of a construction lien, and slander of title. Reeves responded with an answer and a counterclaim to enforce the previously-filed construction lien. A portion of Reeves’s response stated that Reeves had “suffered a loss of expectation interest of future wealth which would have been gained had [Corrigan] not breached the contract.” Reeves also moved to transfer all matters to the Forrest County Circuit Court. The chancellor granted Reeves’s motion and transferred all claims to the circuit court. However, before the claims were transferred to the circuit court, Reeves agreed to cancel the construction lien and filed a lis pendens notice on Corrigan’s property, thus disposing of Reeves’s counterclaim to enforce his construction lien. The chancellor subsequently entered an order cancelling Reeves’s notice of construction lien.

¶ 8. On March 25, 2008, Corrigan next filed a motion for summary judgment. On April 18, 2008, the circuit court conducted a hearing on Corrigan’s motion. Approximately one month later, the circuit court entered its opinion on Corrigan’s motion. Specifically, the circuit court found as follows:

The Court is of the opinion and does find that Defendant Ken Reeves individually was under a duty and obligation to distinguish the contractual relationship with Plaintiff as between Plaintiff and the Reeves Corporation and Ken Reeves d/b/a Reeves Construction. The issue of no contractual relationship between Plaintiff and Ken Reeves d/b/a Reeves Construction is undisputed and the Court finds that there is no dispute as to the lack of contractual relationship in this case between Plaintiff Kate Corri-gan and Defendant Ken Reeves d/b/a Reeves Construction. Therefore, the Court finds that Defendant Ken Reeves d/b/a Reeves Construction wrongfully filed his Construction Lien Notice against Plaintiffs homestead property and for which Defendant Ken Reeves d/b/a Reeves Construction is liable in the statutory penal amount of $12,450.00 being the amount of his wrongful Lien Notice and for which Plaintiff is entitled to Judgment against Ken Reeves d/b/a Reeves Construction in the amount of $12,450.00 as allowed by Section 85-7-201 of the Mississippi Code of 1972 Annotated.

Accordingly, the circuit court granted Cor-rigan’s motion in part and found that Cor-rigan was entitled to summary judgment incident to her claim that Reeves had filed a false notice of a construction hen. However, the circuit court declined to grant summary judgment incident to Corrigan’s slander-of-title claim. Accordingly, Corri-gan’s claims for breach of contract and slander of title are still viable. Reeves appeals and claims the circuit court erred when it granted Corrigan’s motion for summary judgment incident to her claim that Reeves had filed a false notice of a construction lien.

ANALYSIS

¶ 9. Corrigan’s claim that she was entitled to statutory damages based on Reeves’s filing of a false notice of a construction lien is based on Mississippi Code Annotated section 85-7-201 (Rev.1999), which provides as follows:

Any person who shall falsely and knowingly file the notice mentioned in section 85-7-197 without just cause shall forfeit to every party injured thereby the full amount for which such claim was filed, to be recovered in an action by any party so injured at any time within one year from such filing; and any person whose rights may be adversely affected may apply, upon two days’ notice, to the chancery court or to the chancellor in vacation, or to the county court, if within its jurisdiction, to expunge; whereupon proceedings with reference thereto shall be forthwith had, and should it be found that the claim was improperly filed rectification shall at once be made thereof.

¶ 10. Reeves claims the circuit court erred when it granted Corrigan’s motion for summary judgment because there is a genuine issue of material fact regarding whether he filed his notice of construction lien with malice. Additionally, Reeves argues that Corrigan’s letters are the equivalent of admissions that she was dealing with Reeves individually. Finally, Reeves argues that a portion of Corrigan’s March letters demonstrate that Corrigan only made a partial payment to Reeves and that Corrigan owed Reeves additional funds.

¶ 11. We do not reach the merits of Reeves’s arguments. Pursuant to Mississippi Rule of Civil Procedure 54(b):

When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

The record does not contain a motion for certification pursuant to Rule 54(b). Instead, the circuit court simply entered its opinion and order finding that Corrigan was entitled to summary judgment incident to her claim for false notice of a construction lien-but not as to her claim for slander of title.

¶ 12. As mentioned above, Corrigan had also filed a claim for breach of contract, and although the parties agreed to cancel Reeves’s notice of construction lien, a portion of Reeves’s response included an allegation that Corrigan was liable for breach of contract. In Reeves’s lis pen-dens notice, Reeves indicated that the basis of the lis pendens notice was a lawsuit for breach of contract. In the circuit court’s opinion and order, the circuit court instructed Corrigan’s attorney to “prepare an appropriate [fjinal judgment.” The final judgment simply stated that the circuit court “finds that there is no just reason for delay and hereby directs entry of this [fjinal [jjudgment on Count Two ip this cause.” As best we can tell, this language was intended to act as the circuit court’s certification pursuant to Rule 54(b).

¶ 13. The Mississippi Supreme Court discussed Rule 54(b) in Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So.2d 897 (Miss.1987). Pursuant to Cox, this Court has the discretionary authority to review a Rule 54(b) final judgment for plain error. Id. at 899. Cox further directs that “the authority in a trial court to enter a Rule 54(b) judgment 'should be exercised cautiously in the interest of sound judicial administration in order to preserve the established judicial policy against piecemeal appeals in cases which should be reviewed only as single units.’ ” Id. at 900 (quoting Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980)). “It is incumbent on trial attorneys and trial judges to recognize that Rule 54(b) judgments must be reserved for rare and special occasions.” Id.

¶ 14. The Cox court went on to direct as follows:

While we have illustrated in this case an instance of when a Rule 54(b) judgment should not be given, we will not attempt to specifically elaborate every circumstance when such a judgment should be granted. These matters should be left to the discretion of the trial judges. Trial attorneys should review Wright and Miller, Moore’s Federal Practice and [federal case law before they propose a Rule 54(b) judgment to a trial court. In turn, trial judges should require such research and preparation before they even consider the propriety of granting it.

Id. Additionally, the supreme court “urge[d] trial judges to set forth the specific findings and the reasons for directing Rule 54(b) judgments.” Id. at 900-01. There is no indication in the record that either the trial attorneys or the circuit court followed the supreme court’s explicit recommendations in Cox. After the circuit court granted, in part, Corrigan’s motion for summary judgment, Corrigan had pending claims for breach of contract and slander of title. Reeves had a pending claim for breach of contract. It is unclear how the circuit court’s final judgment serves the interests of efficient judicial administration. Likewise, it is unclear why there is no just reason for delay in approving the final judgment. As stated by the supreme court, a final judgment pursuant to Rule 54(b) “should never even be considered ... unless the remainder of the case is going to be inordinately delayed, and it would be especially inequitable to require a party to wait until the entire case is tried before permitting him to appeal.” Id. at 900.

¶ 15. It is noteworthy that “the task of weighing and balancing the contending factors [involved with the determination whether to certify a judgment as final pursuant to Rule 54(b) ] is peculiarly one for the trial judge.” Curtiss Wright Corp., 446 U.S. at 12, 100 S.Ct. 1460. The trial judge’s “assessment merits substantial deference on review.” It is exceedingly difficult for an appellate court to conduct a deferential review of a trial judge’s decision when the trial judge does not elaborate on how he or she weighed and balanced the “contending factors.”

¶ 16. The comments to Rule 54 state that “Rule 54(b) may be invoked only in a relatively select group of cases and applied to an even more limited category of decisions.” “[Sjound judicial administration does not require that Rule 54(b) requests be granted routinely.” Curtiss Wright Corp., 446 U.S. at 10, 100 S.Ct. 1460. In entering a Rule 54(b) certification, it is proper for a trial court to do the following:

consider such factors as whether the claims under review were separable from the others remaining to be adjudicated and whether the nature of the claims already determined was such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals.

Id. at 8, 100 S.Ct. 1460. If “a commonality of operative facts” underlies the claims and defenses of a case, Rule 54(b) certification is not justified. Lowery v. Fed. Express Corp., 426 F.3d 817, 828 (6th Cir.2005).

¶ 17. This Court has held that although there were multiple causes of action in a case, where those causes of action arose “from a single set of facts,” granting Rule 54(b) certification “as a practical matter, would result in piecemeal litigation.” Byrd v. Miss. Power Co., 943 So.2d 108, 111-12(¶ 10) (Miss.Ct.App.2006). Accordingly, this Court found that the Rule 54(b) final judgment was “improvidently granted” and dismissed the appeal. We have also held that a trial court’s “authority to enter a Rule 54(b) judgment should be exercised with caution in the interest of sound judicial administration to preserve the judicial policy against piecemeal appeals.” Walters v. Walters, 956 So.2d 1050, 1054(¶ 13) (Miss.Ct.App.2007).

¶ 18. Corrigan’s motion for partial summary judgment concerned the claims for false notice of construction lien and for slander of title. The circuit court granted summary judgment incident to the claim for false filing of a construction lien. The circuit court denied Corrigan’s slander-of-title claim without any explanation. That claim remains to be adjudicated. To prevail on her slander-of-title claim, Corrigan must prove that Reeves filed the construction lien at issue falsely and with malicious intent. See Williams v. King, 860 So.2d 847, 850 (¶ 15) (Miss.Ct.App.2003) (“for [a] statement to form the basis of a claim for slander of title it must have been made not only falsely but maliciously”). However, Corrigan’s slander-of-title claim arises out of the allegedly wrongful filing of the construction lien. Therefore, it is evident that these two claims are intertwined, as they involve a “commonality of operative facts.” Accordingly, it was inappropriate to enter the Rule 54(b) final judgment. It follows that this appeal is not properly before this Court. Consequently, we dismiss this appeal for lack of jurisdiction.

¶ 19. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ALABAMA RECYCLING ASSOCIATION, INC. v. CITY OF MONTGOMERY.
    1070670.
    Supreme Court of Alabama.
    May 22, 2009.

      James S. Ward of Ward & Wilson, LLC, Birmingham; and D. Patrick Harris of Harris & Harris, L.L.C., Pike Road, for appellant.
    Wallace D. Mills and Walter R. Byars, City of Montgomery Attorney’s Office, for appellee.
   PER CURIAM.

Alabama Recycling Association, Inc., appeals from the trial court’s judgment in favor of the City of Montgomery (“the City”) in this action by Alabama Recycling seeking a judgment declaring the existence of a conflict between a statute and an ordinance adopted by the City and injunc-tive relief.

Facts and Procedural History

On June 14, 2007, the Governor approved Act No. 2007-451, Ala. Acts 2007, enacted by the Alabama Legislature to regulate secondary metals recycling and now codified at § 13A-8-30 et seq., Ala. Code 1975 (“the Act”). The Act applies to both ferrous metals (defined as those metal containing significant quantities of iron or steel, § 13A-8-30(l)) and nonferrous metals (defined as metals not containing significant amounts of iron or steel, such as copper, § 13A-8-30(2)). The Act places restrictions on secondary metals recyclers. A secondary metals recycler is defined as a person “who is engaged ... in the business of paying compensation for ferrous or nonferrous metals that have served their original economic purpose.” § 13A-8-30(8).

The Act requires secondary metals recyclers to maintain records of “all purchase transactions to which the secondary metals recycler is a party.” § 13A-8-31(a). Those records are to include: (1) the name and address of the secondary metals recy-cler; (2) the date of the transaction, (3) the amount and a description of the type of metal purchased; (4) the amount paid for the metal; (5) a signed statement from the seller stating that he or she is the rightful owner of the metal or is entitled to sell the metal; (6) the name and address of the seller; (7) the number from some form of identification from the seller; and (8) the license tag number of the vehicle used to deliver the metal to the secondary metals recycler.

Section 13A-8-31(b) provides as follows:

“(b)(1) For three years following September 1, 2007 [the effective date of the Act], the secondary metal[s] recycler shall not enter into any cash transactions in excess of one hundred dollars ($100) for copper or in excess of one thousand dollars ($1,000) for all other metals in payment for the purchase of the metal property. The check shall be payable to the name and address of the seller of the metal and mailed to the recorded address of the seller or picked up in person by the seller. At the end of three years, this subdivision shall be repealed and subdivision (2) shall apply.
“(2) Commencing three years and one day following September 1, 2007, the secondary metalfs] recycler shall not enter into any cash transaction in excess of one thousand dollars ($1,000) for any metals in payment for the purchase of the metal property. Payment shall be made by check issued to the seller of the metal. The check shall be payable to the name and address of the seller or picked up in person by the seller [sic].”

A law-enforcement official may issue a hold notice to a secondary metals recycler who the law-enforcement official reasonably believes is in possession of stolen metal property when the official has an affidavit from the rightful owner describing the stolen property. § 13A-8-33(a)(l). If the secondary metals recycler contests an allegedly rightful owner’s claim to the metal property, the rightful owner may file an action in the circuit court in the county in which the secondary metals recycler is located. § 13A-8-34(a). Certain classes of sellers are exempt from the Act. § 13A-8-35. The Act criminalizes giving false statements regarding ownership or a false or altered identification or vehicle tag number in connection with the sale of metal property. § 13A-8-36. A secondary metals recycler who knowingly and intentionally violates the Act is guilty of a misdemeanor, but if there is a pattern of such practices by the secondary metals recycler, then the recyeler is guilty of a Class C felony. § 13A-8-37(b). The Act provides that in cases where the acts prohibited by the Act also constitute violations of “any other provision of law,” then the provisions of law that carry the stricter penalty will be applied. § 13A-8-38. Section 13A-8-39 provides that the Act applies to all businesses regulated under the Act without regard to the location of the business within the State and that the Act shall take precedence over any and all local ordinances to the contrary.

On January 15, 2008, the City enacted Ordinance No. 3-2008, which was to become effective February 7, 2008 (“the ordinance”). In enacting the ordinance, the City Council specifically found “that copper thefts and illegal trade in stolen copper have had and continue to have a significant detrimental impact on the citizens and economy of the City of Montgomery by way of both the increase in illegal activity in the community and the cost of damages to the victims of copper theft.” § 1. The ordinance was enacted “to supplement and compliment [sic] the state law regarding the theft and purchase of copper, and the record keeping and reporting requirements imposed upon purchasers of copper thereby.” § 2. The ordinance defines a metals recycler as any person or entity that enters into a transaction to purchase salvaged copper. The ordinance identifies “copper” as “the element listed in the periodic table bearing the atomic number 29 and classified as a metal,” and “salvaged copper,” under the ordinance, includes “copper tubing, copper wire — bare and insulated, all brasses and bronzes, copper solids, auto radiators, copper and aluminum radiators.”

The ordinance provides, in pertinent part, that each metals recycler who purchases salvaged copper within the City shall be required to:

“1) Hold all payments for purchases of Salvaged Copper for a minimum of twenty-four hours after the said purchase; payment to be picked up by seller or mailed to seller.
“2) Pay for all purchases of Salvaged Copper by check made payable to the seller of copper;
“3) Capture and maintain by electronic means, a frontal, head and shoulders color photograph of the person from whom they purchase any quantity of Salvaged Copper in a form which is capable of transmission and delivery via computer to the person or entity designated by the Chief of Police of the Montgomery Police Department; said electronic photograph shall be maintained by the Metals Recycler for a period of at least one year from the date of the purchase of the Salvaged Copper and in the same manner which those records required to be kept by Ordinance 45-2006; said photograph and records shall viewable by any law enforcement officer upon request and shall be provided to the Chiefs designee by electronic means by request thereof.”

On January 31, 2008, Alabama Recycling, an incorporated association composed of businesses in the City engaged in the purchase of ferrous and nonferrous metals, sued the City, seeking a judgment declaring that the ordinance conflicts with the Act. Alabama Recycling also sought relief in the form of a temporary restraining order, a preliminary injunction, and a permanent injunction, to prohibit the ordinance from taking effect on February 7, 2008. On February 4, 2008, the trial court held a hearing, following which it refused to enter a temporary restraining order. On February 6, 2008, Alabama Recycling filed a motion to stay the enforcement of the ordinance to the extent it conflicts with the Act; it also filed a notice of appeal from the denial of its request for a temporary restraining order. On February 8, 2008, the trial court entered an order stating that, “having considered complaint for Declaratory an Injunctive Relief, and after hearing testimony, the submission of documents, and argument of counsel, and for cause shown it is hereby ordered that [Alabama Recycling’s] relief sought is denied.” The trial court granted the motion to stay. On February 22, 2008, the City filed a motion to alter, amend, or vacate the order staying the enforcement of the ordinance. This Court remanded the case to the trial court for the sole purpose of considering the City’s motion to alter, amend, or vacate. On February 26, 2008, the trial court denied the City’s motion. On February 29, 2008, Alabama Recycling filed a motion to reinstate its appeal, which this Court granted.

Standard of Review

The question presented on appeal involves a pure question of law; thus, our review is de novo. See Barber v. Jefferson County Racing Ass’n, 960 So.2d 599 (Ala.2006) (holding that review of a declaratory judgment is ordinarily governed by the ore tenus standard, but when the facts are undisputed or uncontroverted and the questions presented are purely legal ones, the review is de novo).

Discussion

Alabama Recycling argues that the Act and the ordinance are inconsistent. “ ‘ “Whether an ordinance is inconsistent with the general law of the State is to be determined by whether the municipal law prohibits anything which the State law specifically permits.” ’ ” Gibson v. City of Alexander City, 779 So.2d 1153, 1155 (Ala.2000) (quoting Lanier v. City of Newton, 518 So.2d 40, 43 (Ala.1987), quoting in turn Congo v. State, 409 So.2d 475, 478 (Ala.Crim.App.1981)). In Lanier v. City of Newton, this Court addressed “inconsistency” with regard to a conflict between a statute and an ordinance, stating: “ ‘Inconsistent’ is defined by Black’s Law Dictionary (5th ed.1979) as ‘mutually repugnant or contradictory; contrary, the one to the other, so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other.’ It implies ‘contradiction — qualities which cannot coexist — not merely a lack of uniformity in details.’ City of Montgomery v. Barefield, 1 Ala.App. 515, 523, 56 So. 260, 262 (1911).” 518 So.2d at 43.

In Gibson, supra, a café owner brought an action challenging the city’s authority to adopt an ordinance restricting the sale of alcoholic beverages between midnight and 7 a.m., where the café owner had a license issued under the statutory provisions of the Alcoholic Beverage Licensing Code that allowed him to sell liquor 24 hours a day, 6 days a week. This Court held that the City’s ordinance merely enlarged upon the statutory provisions of the Alcoholic Beverage Licensing Code and that it was not inconsistent with Alabama statutory law.

In City of Montgomery v. Barefield, 1 Ala.App. 515, 56 So. 260 (1911), the court examined an alleged conflict between a city ordinance and statutes regarding work on public roads, which provided that all residents of a municipality over the age of 45 were exempt from road duty and that the inhabitants of a municipality were exempt from working on the roads outside the municipality but could be required to pay a street tax for maintenance and construction of the streets within the municipality. The city passed an ordinance that imposed an annual street tax on all residents between the ages of 21 and 45 and required those failing to pay the annual street tax to work the roads in the city. The appellate court held that the ordinance and the statutes were not in conflict, stating:

“The ordinance in question strikes down the provisions of no general law, is not repugnant to it, does not infringe its spirit, and is not in contravention of or in conflict with the operation or enforcement of the general law relating to the performance of road duty. The laws are not contradictory of nor repugnant to each other; they may both coexist and be enforced at the same time, without dependence one upon the other. Each has a separate field of operation in which it may be enforced. The city law specifies no particular persons as exempt, and makes a somewhat different class liable to the payment of street tax than are liable to the performance of road duty under the provisions of the law requiring persons to work the roads, but the constitutional requirement is not for conformity in the laws; it is that they shall not be inconsistent, and inconsistent implies contradiction — qualities which cannot coexist — not merely a lack of uniformity in details.”

1 Ala.App. at 523, 56 So. at 263. In City of Mobile v. Collins, 24 Ala.App. 41, 130 So. 369 (1930), the appellate court held that a city ordinance levying a street tax on men between the ages of 21 and 60 was not inconsistent with the same statutes at issue in Barefield.

In Congo v. State, supra, a criminal defendant argued that a municipal ordinance charging the offense with which he was charged — drunkenness on any street or other public place — was in conflict with a State statute providing that a person commits the crime of public intoxication if he appears in public under the influence to the degree that he endangers himself or another or his boisterous or offensive conduct annoys another person. Specifically, the defendant contended that the city ordinance was in conflict with the statute, and was therefore unconstitutional, because, he argued, the city ordinance prohibited merely being in a state of drunkenness whereas the statute required some manifestation of endangering or annoying conduct in addition to the intoxication. The Court of Criminal Appeals held that the city ordinance did not contravene a State statute and that it did not prohibit something the State statute affirmatively allowed.

In the present case, Alabama Recycling contends that the ordinance and the Act are in conflict because the Act permits cash purchases of copper for up to $100 and up to $1,000 for other metals and the ordinance prohibits any cash transactions for copper. The Act prohibits a metals recycler from purchasing copper with cash if the transaction is over $100, while the ordinance expands the cash prohibition to all transactions for the purchase of copper. The Act does not “specifically permit” cash purchases of copper at or below $100 in value. It simply does not regulate such purchases. The fact that the Act does not regulate purchases of $100 or less does not create a conflict with the ordinance, which does regulate such purchases. In other words, the Act does not prohibit payment by check for purchases of copper under $100. This portion of the ordinance does not conflict with the statute because the ordinance enlarges upon the provisions of the Act by adding certain restrictions.

Alabama Recycling also argues that a conflict exists because the Act allows for the immediate delivery of a check to the seller in a non-cash transaction and the ordinance requires that a check issued to the seller be withheld for 24 hours. The ordinance requires a metals recycler to hold a check paid for the purchase of copper for 24 hours, whereas the Act does not require a recycler to hold payment for any period. In adopting the Act, the legislature did not prohibit or permit a metals recycler from holding a check. The ordinance thus does not prohibit anything the Act expressly permits or permit anything the Act expressly prohibits. The Act is silent on this issue. Mere differences in detail do not create a conflict, and we cannot say a conflict exists merely because the Act is silent where the ordinance speaks.

Alabama Recycling argues that there is a conflict between the Act and the ordinance because the Act exempts from regulation metals that have not served their original economic purpose (i.e., new copper and other metals) whereas the ordinance regulates purchases of all copper, new or used. The ordinance defines the term “salvaged copper” and lists several items that are made of copper. The term “salvaged,” however, is not defined in the ordinance. Assuming, without deciding, that “salvaged copper” is copper that has served its original economic purpose, there would be no conflict between the ordinance and the Act. Even if we assume that the ordinance applies to both new and salvaged copper, the ordinance does not conflict with the Act because the phrase “metals that have served their original economic purpose” is part of the definition of “secondary metals recycler” and references to whom the provisions of the Act apply and not the definition of nonferrous metals. The definition of nonferrous metals in the Act is any metal not containing significant amounts of iron or steel, and copper is specifically set out as one of those metals,

Alabama Recycling does cite several cases in which Alabama appellate courts have found a conflict between a city ordinance and a statute. However, those cases involved ordinances that prohibited conduct that the State statute expressly allowed. See Riverbend P’ship v. City of Mobile, 457 So.2d 371 (Ala.1984) (holding that there was a conflict between the city ordinance and a State statute where the city ordinance denied the Board of Adjustment the power to grant variances to zoning laws and the State statute expressly provided for such power in the enabling legislation); Alabama Disposal Solutions-Landfill, LLC v. Town of Lowndesboro, 837 So.2d 292 (Ala.Civ.App.2002) (holding that a municipal ordinance prohibiting landfills within the city’s corporate limits and its police jurisdiction conflicted with a State statute to the extent that the city’s ordinance purported to regulate a solid-waste landfill outside the city’s corporate limits); and Atkins v. City of Tarrant City, 369 So.2d 322 (Ala.Crim.App.1979) (holding that city ordinance that made it illegal to be intoxicated while riding as a passenger in an automobile conflicted with State statute exempting from criminal liability for intoxication while traveling along a public highway persons traveling as a passenger in any public or private conveyance).

Lastly, Alabama Recycling argues that the Act was intended to “limit the requirements for all cases to its own terms” because § 13A-8-39 states that the Act applies statewide and that it “shall take precedence over any and all local ordinances to the contrary.” Had the legislature intended to occupy the entire field of regulating the sale of used metals, the legislature could have easily stated that the Act was to be exclusive. See, e.g., § 2-17-25, Ala.Code 1975 (establishing the jurisdiction of the agricultural commissioner as “exclusive” and providing that “no county or municipal board of health or other municipal agency shall have the power or jurisdiction to regulate the slaughtering” of certain animals). Instead, the legislature recognized that there could be existing or future city ordinances regarding metals recycling that would not be contrary to the Act. Also, § 13A-8-38 recognizes the coexistence of other criminal laws regulating the conduct addressed by the Act and recognizes that the Act was not intended to repeal those criminal laws and that, as between the two provisions, the harsher penalty would prevail.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.


author:
PER CURIAM.
      SHAW, Justice COBB, Chief Justice

text:
    Ex parte F. Scott ANDREWS, Jr. (In re F. Scott Andrews, Jr. v. Eva Sproull Andrews).
    1080593.
    Supreme Court of Alabama.
    May 22, 2009.
    Traci Owen Vella, Birmingham, for petitioner.
   PER CURIAM.

WRIT DENIED. NO OPINION.

WOODALL, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

LYONS, STUART, and SHAW, JJ., concur specially.

COBB, C.J., dissents.

SHAW, Justice

(concurring specially).

I concur in denying the petition for the writ of certiorari. Although certiorari petitions are normally denied by an order of the Court without the issuance of an opinion of the Court or a writing of an individual Justice, I feel compelled, in response to the Chief Justice’s dissent and her characterization of this Court’s rationale for denying the petition as “hyperteehnical,” to express my reasons for concurring.

This is a divorce case. The petitioner, F. Scott Andrews, Jr. (“the husband”), and his former wife, Eva Sproull Andrews (“the wife”), were divorced in April 2008. The trial court divided the marital property between the two. According to the husband’s statement of facts, property valued at $35,200 was awarded to him and property valued at $1,434,663 was awarded to the wife. The husband appealed.

The Court of Civil Appeals unanimously affirmed the trial court’s judgment in a no-opinion affirmance that cited no less than 20 supporting authorities, none of which the husband addresses in his petition. Andrews v. Andrews (No. 2070809, February 6, 2009), — So.3d -(Ala.Civ.App.2009) (table). The husband then petitioned this Court for certiorari review.

“Certiorari review is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only when there are special and important reasons for the issuance of the writ.” Rule 39(a), Ala. R.App. P. A certiorari petition may be granted only pursuant to the grounds specified in Rule 39(a)(1) (civil cases and non-death-penalty criminal cases) or (2) (death-penalty cases). Rule 39(a)(1) states:

“In all civil cases and in all criminal eases other than cases in which the death penalty is imposed, petitions for writs of certiorari will be considered only:
“(D) From decisions in conflict with prior decisions of the Supreme Court of the United States, the Supreme Court of Alabama, the Alabama Court of Criminal Appeals, or the Alabama Court of Civil Appeals; provided that:
“2. Where it is not feasible to quote that part of the opinion either because no wording in the opinion clearly shows the conflict or because no opinion was issued, the petition shall state that this subparagraph is applicable and then state, with particularity, how the decision conflicts with a prior decision .... ”

(Emphasis added.) In addition, this Court grants certiorari review only when it “concludes that there is a probability of merit in the petition .... ” Rule 39(f), Ala. R.App. P.

In this case, the husband seeks certiora-ri review under Rule 39(a)(l)(D)(2), which, as noted above, requires that he “state, with particularity, how the decision conflicts with a prior decision.” The husband’s discussion of this ground is as follows:

“The decision of the trial court to award [the husband] only 2% of the marital estate is grossly inequitable and this Court has consistently reversed decisions wherein one party is awarded a disproportionate portion of the marital estate. In Kaufman v. Kaufman, 934 So.2d 1073 (Ala.Civ.App.2005), this Court reversed a divorce decree where the husband received approximately 77% of the marital estate and the wife received 23%. An award of only 16% to one party was also found to be ‘so disproportionate as to be inequitable.’ Adams v. Adams, 778 So.2d 825 at 827 (Ala.Civ.App.2000).
“And in a case where Wife was awarded only 13% of the parties’ assets, the Alabama Court of Civil Appeals cited this Court in Kaufman v. Kaufman, supra, and Adams v. Adams, supra, in concluding the trial court’s property division was inequitable. Cunningham v. Cunningham, 956 So.2d 1157 (Ala.Civ.App.2006).”

From what the husband states in the text of his petition, those cases would appear to hold that the various ratios represented in the property divisions in those cases were inequitable. The husband does not, however, offer an actual discussion of the analysis undertaken by the Court of Civil Appeals in the above-cited cases in arriving at those holdings. Instead, he simply states the result of those decisions and then invites this Court — an invitation the Chief Justice accepts — to draw the conclusion that because the ratio in this case is similar, the property division should also be considered inequitable.

The cases the husband cites do not hold that, as a matter of law, a property division can be rendered inequitable by mere mathematical ratios. In fact, although the appellate courts of this State have reversed judgments on the basis that the division of marital property is disproportionate, “there is no rigid standard or mathematical formula on which a trial court must base its determination of alimony and the division of marital assets.” Yohey v. Yohey, 890 So.2d 160, 164 (Ala.Civ.App.2004). “Even if a property division favors one party over the other, that is not, in and of itself, an abuse of discretion.” Jordan v. Jordan, 547 So.2d 574, 576 (Ala.Civ.App.1989). See also Jenkins v. Jenkins, 781 So.2d 986, 989 (Ala.Civ.App.2000) (“The trial court’s property division and its alimony award are required to be equitable, not equal.”).

The Chief Justice concludes that the cases cited by the petitioner indicate “that a judgment dividing a marital estate in such disproportionate shares is inequitable and unsupportable on appellate review.” 24 So.3d at 1096. Again, the cases cited by the husband do not hold that the disparity in the percentage of marital property awarded to each party is per se sufficient to show that a property division is inequitable. Instead, those cases explain that in dividing marital property the trial court undertakes a complex analysis of numerous factual components, including:

“ ‘[T]he future prospects of the parties; their ages, health, and stations in life; the length of their marriage; the source, value and type of property owned; the standard of living to which the parties have become accustomed during the marriage and the potential for maintaining that standard; and, in appropriate situations, the conduct of the parties with reference to the cause of the divorce.’ ”

Adams v. Adams, 778 So.2d 825, 827 (Ala.Civ.App.2000) (quoting Bolton v. Bolton, 720 So.2d 929, 930 (Ala.Civ.App.1998)). One cannot make a proper property-division determination without resort to an analysis of these factual components, and they are wholly unaddressed in the husband’s petition.

The husband has implied in his argument that the property division violates a proposition of law that is not discernible from the cited cases. The Chief Justice concludes, however, that this argument shows “with sufficient particularity” that the Court of Civil Appeals’ decision conflicts with the cases cited in the husband’s petition and that “there are special and important reasons” requiring this Court to exercise its discretion and issue the writ. I respectfully disagree, especially in light of the complex factual analysis that underpins each of the decisions in the cited cases.

But this is only half the analysis this Court undertakes on preliminary examination of a petition for certiorari review. Once it is determined that the petition complies with the pleading requirements of Rule 39, this Court must also determine whether the petition illustrates a probability of merit. Rule 39(f), Ala. R.App. P. The Chief Justice does not undertake such an analysis in her dissent. I will now explain why I believe the petition also fails to show a probability of merit.

As stated above, a division of marital property in a divorce case “need not be equal, but must be graduated according to the particular circumstances of the case,” including the respective fault of the parties. Crowe v. Crowe, 602 So.2d 441, 443 (Ala.Civ.App.1992). A trial court’s property division is a fact-intensive analysis in which the trial court considers numerous factors, including “the source, value and type of property owned.” Adams, 778 So.2d at 827. Under the ore tenus rule, the trial court’s factual determination on these issues in a case in which it heard ore tenus evidence is presumed correct. Courtright v. Courtright, 757 So.2d 453, 456 (Ala.Civ.App.2000) (noting that, in an appeal challenging a division of marital property, “ ‘[a] divorce judgment based on ore tenus evidence is presumed correct ....’” (quoting O’Neal v. O’Neal, 678 So.2d 161, 164 (Ala.Civ.App.1996))). In such a case, the trial court’s judgment will be reversed only if there was “a plain and palpable abuse of discretion,” id., even if the property division “might appear disproportionate.” Mangina v. Mangina, 585 So.2d 1383, 1386 (Ala.Civ.App.1991) (emphasis added). See also Dowdy v. Dowdy, 473 So.2d 1091, 1093 (Ala.Civ.App.1985) (stating that the division of property in a divorce proceeding should be equitable, not necessarily equal, and that, after consideration of the equities, the division of property “ ‘is a matter for the discretion of the trial court, and will not be disturbed on appeal except upon a showing of palpable abuse’” (quoting Kirk v. Kirk, 371 So.2d 54, 55 (Ala.Civ.App.1979))). Again, the husband does not address any of the factors relevant in dividing marital property, much less explain how, if the writ were to issue, this Court would find that the trial court had exceeded its discretion in dividing the property or that its factual determinations are plainly and palpably wrong.

Furthermore, it is clear from the husband’s own statement of facts that the vast bulk of the marital estate consisted of funds held by the wife before the marriage or provided to the wife by her family. Specifically, the wife had an interest in the amount of approximately $637,152 in a trust account established by her parents “to distribute the family’s wealth.” The wife also held a “Morgan Stanley” account in her name that contained $690,702. According to the husband, the wife provided the “majority” of the family income from the interest on these accounts, which together total $1,327,854. As noted above, the trial court can consider, among other things, “the source” of the marital property, and it appears that a large portion of the property awarded to the wife was derived from sources outside the marriage. Adams, 778 So.2d at 827. The husband does not specifically contend in his petition, or provide a legal basis upon which to conclude, that he is entitled to any of these funds.

On the other hand, the facts describing the husband’s income and any money he brought into the marriage are vague. He states that he was employed as a “paint contractor” and then as a realtor, but he also states that his monthly income was insufficient to pay the family’s monthly bills. The husband does not indicate that he in any way contributed funds to the accounts held by the wife.

I also question how the husband and the Chief Justice can use the figure of $1,434,663 in determining what proportion of the marital estate was awarded to the wife. The facts indicate that during the marriage the wife purchased a farm with “her” money. Although the husband included the value of the farm — $216,000—in the total amount of the marital property awarded to the wife — $1,434,663—the husband also states that the wife, before the divorce, deeded the farm property to a trust for the benefit of her children. Additionally, the husband states in his petition that he did not claim an interest in two other parcels of property the wife owned; that said, one of the properties, valued at $54,000, was also included in computing the total award to the wife. For all that appears, most of the $1,434,663 figure the husband claims was awarded to the wife consisted of accounts she held before the marriage, funds given to the wife by her parents, or property the husband either did not claim he was entitled to or the wife no longer owned at the time of the divorce.

The facts before us, which are provided by the husband, show that the wife brought a great deal of wealth into the marriage and that she left the marriage with both an award of a great deal of money and a large debt. The husband does not present an argument, much less authority, showing that if this Court were to issue the writ, he could overcome the presumption of correctness afforded the trial court’s decision and show that he is entitled to any of these moneys. The cer-tiorari petition raises more questions as to the merits of its own arguments than to the propriety of the property division and the Court of Civil Appeals’ affirmance of the trial court’s judgment. I see no conflict with prior caselaw, no probability of merit, no special and important reasons to issue the writ, and no need to exercise the Court’s discretion to order the issuance of the writ. Therefore, I concur in denying the petition.

LYONS and STUART, JJ., concur.

COBB, Chief Justice

(dissenting).

I respectfully dissent from the denial of the petition for a writ of certiorari filed by F. Scott Andrews, Jr., seeking review of a decision of the Court of Civil Appeals. Scott and Eva Sproull Andrews were married for approximately 10 years; they were divorced in April 2008. The trial court awarded Scott marital property valued at $35,200, or approximately 2.4 percent of the marital property, while it awarded Eva marital property valued at $1,434,663, or approximately 97.6 percent of the marital property. Scott appealed to the Court of Civil Appeals, which affirmed the trial court’s judgment without a written opinion. Andrews v. Andrews (No. 2070809, February 6, 2009), — So.3d - (Ala.Civ.App.2009) (table).

In his petition to this Court, Scott argued that the decision of the Court of Civil Appeals conflicts with Kaufman v. Kaufman, 934 So.2d 1073 (Ala.Civ.App.2005), Adams v. Adams, 778 So.2d 825 (Ala.Civ.App.2000), and Cunningham v. Cunningham, 956 So.2d 1157 (Ala.Civ.App.2006). The majority of this Court concludes that Scott failed to state with particularly how a ratio in the division of marital property of 97.6 percent to one party to 2.4 percent to the other conflicts with the aforementioned eases. I disagree. Each of the above cases indicates that a judgment dividing a marital estate in such disproportionate shares is inequitable and unsupportable on appellate review. I believe that Scott has stated the conflict with sufficient particularity for the members of this Court to comprehend the alleged conflict. I attach Scott’s petition as an appendix to my dissent so that practitioners may understand how the majority of this Court is evaluating petitions for certiorari review in a hypertechnical manner.

APPENDIX [To CHIEF JUSTICE’S DISSENT]

PETITION FOR WRIT OF CERTIO-RARI TO THE ALABAMA COURT OF CIVIL APPEALS

Comes now the Appellant, Scott Andrews, and, pursuant to Rule 39 of the Alabama Rules of Appellate Procedure, brings this Petition for Writ of Certiorari, and as grounds therefore, states the following:

1. The Alabama Court of Civil Appeals issued a decision in this matter on February 6, 2009, which affirmed the decision of the trial court, with no opinion.

2. No opinion was issued by the Court of Civil Appeals in the decision of the Court, and therefore Rule (a)(l)(D)2 is applicable. The Opinion of the Court is attached hereto as “Exhibit A.”

8. Since no statement of fact was made in the Court of Civil Appeals’ Order, a Statement of Facts is attached hereto as “Exhibit B.”

4. The decision of the trial court was in conflict with prior decisions of this Court as well as prior decisions of the Alabama Court of Civil Appeals.

(a)The decision of the trial court to award Appellant only 2% of the marital estate is grossly inequitable and this Court has consistently reversed decisions wherein one party is awarded a disproportionate portion of the marital estate. In Kaufman v. Kaufman, 934 So.2d 1073 (Ala.Civ.App.2005), this Court reversed a divorce decree where the husband received approximately 77% of the marital estate and the wife received 23%. An award of only 16% to one party was also found to be “so disproportionate as to be inequitable”. Adams v. Adams, 778 So.2d 825 at 827 (Ala.Civ.App.2000).
And in a case where Wife was awarded only 13% of the parties’ assets, the Alabama Court of Civil Appeals cited this Court in Kaufman v. Kaufman, supra, and Adams v. Adams, supra, in concluding the trial court’s property division was inequitable. Cunningham v. Cunningham, 956 So.2d 1157 (Ala.Civ.App.2006).
(b) The trial court’s award of primary custody to Appellee was also in conflict with Alabama precedent, which requires the court to consider: age and sex of the child; child’s emotional, social, moral, material, and educational needs; and the characteristics of those seeking custody, including their age, character, stability, mental and physical health, and their respective home environments. Kovakas v. Kovakas, Ala.Civ.App., Case Numbers 2050780 and 2060229, May 23, 2008, citing Ex parte Devine, 398 So.2d at 696-97.
There was clear testimony that Appellant had been the child’s primary care giver, whereas the Appellee primarily delegated parental responsibilities and made poor decisions while the child was in her care. R. 498, 144-6, 110, 131, 505-12,137, 416,146,169-70.
(c) Appellant did not receive his constitutional requirement of due process prior to the Court requiring him to pay rent on the marital residence. A hearing was set, but no evidence was heard, and the judge made a decision based on “what evidence might be offered....” Appellant, and in fact any litigant, has the right to “notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing.” Hosey v. Lowery, 911 So.2d 15 (Ala..Civ.App.2005), citing Ex parte Rice, 265 Ala. 454, 458, 92 So.2d 16, 19 (1957).

Wherefore, premises considered, the Appellant respectfully requests that this Honorable Court issue a Writ of Certiorari to the Alabama Court of Civil Appeals.

S/ Traci Owen Vella

TRACI OWEN VELLA (VEL002)

Attorney for Appellant

200 Office Park Drive Suite 216 Birmingham, AL 35223 (205) 868-1555

CERTIFICATE OF SERVICE

I certify that I have on this the 20th day of February, 2009, served a copy of the foregoing Petition on counsel of record for the Appellee as follows:

Arthur Fite The Fite Law Firm P.O. Box 363 Anniston, Alabama 36202

S/ Traci Owen Vella

TRACI OWEN VELLA

“Exhibit A”

REL: 02/06/2009

STATE OF ALABAMA — JUDICIAL DEPARTMENT

THE COURT OF CIVIL APPEALS

OCTOBER TERM[, 2008-2009

2070809

F. Scott Andrews, Jr. v. Eva Sproull Andrews.

Appeal from Calhoun Circuit Court (DR-07-900007).

BRYAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(), Ala. R.App. P.; Rule 28(a)(10), Ala. R.App. P.; State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 821 (Ala.2005); Ex parte Fann, 810 So.2d 631, 633 (Ala.2001); Ex parte Byars, 794 So.2d 345, 347 (Ala.2001); Ex parte Veazey, 637 So.2d 1348, 1349 (Ala.1993); Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981); Amberson v. Long, 998 So.2d 1078, 1079 (Ala.Civ.App.2008); Mullis v. Mullis, 994 So.2d 934, 941-42 (Ala.Civ.App.2007); Leopold v. Leopold, 955 So.2d 1031, 1034 (Ala.Civ.App.2006); McClelland v. McClelland, 841 So.2d 1264, 1269 (Ala.Civ.App.2002); Courtright v. Courtright, 757 So.2d 453, 456 (Ala.Civ.App.2000); Allegro v. State ex rel. Lett, 747 So.2d 913, 914 (Ala.Civ.App.1999); Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996); Glover v. Glover, 678 So.2d 174, 176 (Ala.Civ.App.1996); Driver v. Hice, 618 So.2d 129, 132 (Ala.Civ.App.1993); Crowe v. Crowe, 602 So.2d 441, 443 (Ala.Civ.App.1992); Mangina v. Mangina, 585 So.2d 1383, 1386 (Ala.Civ.App.1991); Jenkins v. Landmark Chevrolet, Inc., 575 So.2d 1157, 1161 (Ala.Civ.App.1991); Sims v. Sims, 515 So.2d 1, 2 (Ala.Civ.App.1987); Dowdy v. Dowdy, 473 So.2d 1091, 1093 (Ala.Civ.App.1985); and Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981).

The appellant’s request for an attorney’s fee on appeal is denied.

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

“EXHIBIT B”

STATEMENT OF FACTS

This is a divorce case involving the custody of one child and the division of marital property. The parties married in 1999 and had one child born of the marriage, [H.A.] .... R. 4 and 6.

The marriage was Wife’s fourth marriage and Husband’s first. R. 116, 389.

During the marriage, Wife only minimally worked outside the home as an artist. R. 7, 100. Husband worked as a paint contractor during the first years of the marriage, and then obtained his license and became a realtor in 2004. R. 385, 888. Wife testified she provided the majority of the family’s income during the marriage. R. 267. Wife’s income came from investments which originated from gifts from her parents. R. 8.

Husband testified he was the primary caretaker for [H.A.]. Contrary to Wife’s very general description of the role of the primary caretaker, Husband specifically testified that, when [H.A.] was a baby, he fed him, changed him, gave him bottles, and frequently stayed at home with him. R. 492. Later, he took [H.A.] to Mom’s Day Out, signed him up for school each year, bought school supplies, took him to the pediatrician, and took him to work with him. R. 495-7. Husband coaches soccer, participates in tennis, golf, and swimming with [H.A.], He takes him for haircuts, and attends all field trips, teachers meeting, and school events. R. 500-2. Wife conceded Husband was a good father. R. 41.

Although Wife did not work outside the home, while Husband worked, a nanny or housekeeper frequently looked after [H.A.] during the day. R. 498. Wife admitted drinking and driving while [H.A.] was in the car. R. 110. Husband also testified that Wife: missed a field trip with [H.A.] after promising to attend; failed to take him to his last day of Bible school; chose not to attend his very first day of school (Husband took him); missed a parent teacher conference; took [H.A.] to school while in her pajamas and forgot she was supposed to attend a field trip that day (Husband went instead); took him on a Tour of Homes after he was home sick for two days; curses in front of [H.A.]; and took him to school in 28 degree weather without a coat. R. 505-12.

Wife also left [H.A.] with her ex-husband on multiple occasions, including overnight, and the child slept with her ex-husband. R. 144,146,169-70.

Between the parties’ separation and the date of divorce, they had split time with [H.A.] equally. R. 302.

An audio tape was played for the Court wherein Wife cursed Husband, allegedly in the presence of [H.A.], R. 32, 118. Husband’s employer had overheard Wife cursing Husband over the telephone while he was at work. R. 429-30. Wife’s maid testified Wife “screamed” and “hollered” and that the child screamed back at her. R. 355. Testimony that Wife was physically abusive to Husband was not refuted: she kicked him in the back ( R. 393), gave him a black eye and a busted lip (R. 396), pushed him into a Tiffany lamp, breaking it while in the presence of the child (R. 114), and a witness testified he saw scratches made by Wife on Husband’s chest after overhearing them arguing. R. 463-4.

PROPERTY

Wife owned an interest in Sproull Investments, Inc., a company created by her parents to distribute the family’s wealth. R. 8. Wife started receiving her interests in 2002 (during the marriage) with annual increases each year thereafter. Wife’s estimated value of that interest on December 31, 2007 was $637,152, but she provided a value of shares “based on estimated value due to decline in market” which was $557,035. Plaintiffs Exhibit 2.

Wife had a checking account in which she kept an average balance of $25,000, used during the marriage, and kept a balance in it for “security”. R. 89-90.

Another account in Wife’s name but used throughout the marriage was a Morgan Stanley account. Wife admitted she consistently took interest and dividends from the account for the parties to live on during the marriage. R. 14-5, 53, 98. The balance of the account at the time of the divorce was $690,000, though she owed $210,000 on the margin balance, for a net value of 480,000. R. 238.

The parties lived together before and during their marriage at 904 Forest Lane [hereinafter “Forest Lane”]. R. 14, 389. Wife bought the house in 1995 for $63,000, and after the parties married, Wife’s parents paid off the mortgage on the home. R. 75-7. The parties sold the home in 2002, netting $68,000. Wife testified she thought of the home as hers and Husband’s, and he signed the settlement forms at the closing because they were married. R. 78.

Before selling Forest Lane, Wife’s parents took them to view a larger home, and her parents told them they would buy the house for them. R. 397. Wife testified her mother wrote a check for the total sales price of $206,000 in 2001. R. 16-17. She said the house was initially a gift to both she and Husband. R. 82.

Husband alleges Wife’s brother thereafter became upset that their parents had purchased a home for them, which he believed was unfair to the rest of the family and thus Wife thereafter signed a note and a mortgage on the “loan.” Wife confirmed this description of events and added that her brother [“Jim”] told her ex-husband [“Vaughn Jr.”] to draw up the documents for the loan. R. 82-3.

Wife’s CPA testified a replacement note was prepared in 2002 to lower the interest rate on the loan and the total amt owed at that time was $194,000, although no witness for Wife could find a signed copy of the replacement note. R. 209. The CPA prepared the replacement note, but he did not know if Wife ever signed it. R. 232. During the trial, no signed copy was ever presented. Wife paid the $68,000 proceeds from the sale of the Forest Lane home on the loan (R. 18), as well as $14,000 which was paid in 2004, while another of Wife’s Complaints for Divorce against Husband was pending. R. 20, 83. Wife believed the present value of the home to be $215,000 at the time of trial, and she believed the amount owed on the loan from her parents was $165,000. R. 55. She admitted she was not obligated to make payments on the loan, as it was a demand note. R. 20.

Following the parties’ separation, Wife left the home, which had been the marital residence. R. 19, 284, 413. Husband testified he had no where else to live with [H.A.], that he could not afford to pay Wife rent for the marital residence because his expenses (including the family’s health insurance, which cost him $760 per month, and all the utilities at the residence) exceeded his income. R. 416-420.

The parties also owned a farm with ten acres [hereinafter referred to as “Hidden Hills”], which was purchased during the marriage for $140,000. Wife wrote a check for the property from her Morgan Stanley margin account. R. 21-3. The parties found the property together, but put it in Wife’s name because her family traditionally bought property “in the woman’s name in case the man gets sued.” They each testified they purchased the property as an investment. R. 85-6, 402. Husband found a renter for one of the two houses on the property, did various work on the property, and the parties used the other house as their marital residence for 6-8 months. R. 87-8, 403-11. Wife kept the rent and spent it for the family, including buying groceries. R. 88. The couple entertained guests at the property throughout the marriage. R. 92. Husband spent his money making repairs on the property, and he lived on the property during the parties’ separation in 2005. R. 405.

Wife, without Husband’s knowledge or consent, deeded the property to a trust for the benefit of her sons [V.] and [H.A.], R. 25-7, 85-86, 409. (Plaintiffs Exhibits 10 and 17). Wife also rented out the other house on the property after the separation, which produced $900 per month. R. 27, 414. Immediately after Husband learned of this transfer without his consent, Wife filed the final and current divorce. R. 93-4, 410.

Wife made her ex-husband Vaughn Jr. the trustee of the Trust. R. 162. Wife believed the fair market value of the property was $160,000 at the time it was deeded to the trust. R. 275. However, Husband testified an appraisal showed the value was actually $216,000. R. 413.

Wife had two properties in which Husband made no claims, though they were listed as her separate property. R. 95, 53.

Husband submitted a list of personal property, which is within Plaintiffs Exhibit 4. Husband R. 422. The Court then gave Wife the opportunity to review Husband’s list and mark the items to which she objected. Wife then marked said items with a letter “E”. R. 423. In the Final Decree, the Court awarded Husband several pieces of personal property, and awarded each party all personal property then in his or her possession, with the exception of the items specifically awarded to Husband. C. 100-1. Wife, in her response to Husband’s Motion to Alter, Amend or Vacate, “suggested” the Court amend the Final Decree, paragraph 11 (concerning personal property) with her own drafted paragraph. C. 119. Thereafter, Wife filed a Motion to Alter, Amend or Vacate and suggested another property division, attaching a new exhibit to the Motion, listing property Wife wanted. This exhibit had not been admitted during the trial of this matter. C. 125-139.

On April 17, 2008, the Court issued an Amended Judgment following the argument of counsel. Then on April 24, 2008, Wife submitted a “Proposed Order.” C. 139-140. Husband filed a Motion to Strike said Proposed Order as not timely filed (C. 141-2), and the Court denied said Motion to Strike on May 2, 2008 (C. 143), the same day the Court issued its final Amended Judgment, wherein the Court amended the Order pursuant to Wife’s request. C. 145.

The trial court divided property in the following manner:

HUSBAND
Auto-Nissan Pathfinder $ 14,000
Equity in Glenwood Terrace $ 30,200
Equity in Hidden Hills $ 5,000
Debt to Southern States Bank ($ 14,000)
TOTAL VALUE $ 35,200
WIFE
Auto-2004 Volvo $ 23,000
Glenwood Terrace $ 215,000
Morgan Stanley Account $ 690,702
Margin Debt ($ 210,440)
Wachovia Account $ 25,000
Hidden Hills Farm $ 216,000
Sproull Investment, LLC Interest $ 637,152
Loan from Sproull Investments ($ 165,751)
Office Building, 24 East 12th St. Farmers and Merchants Loan $ 54,000 ($ 50,000)
Interest in Eufala, AL Property value unknown
TOTAL VALUE $1,434,663

C. 98-102.

The court also awarded primary custody of [H.A.] to Appellee. C. 98-102.

      . The wife was also awarded custody of the couple’s minor child.

      . The Chief Justice has attached a copy of the husband's petition to her dissenting opinion. It is unfortunate that the details of the parties’ divorce, custody dispute, and private finances are now to be unnecessarily preserved for public view in the pages of the Southern Reporter. That said, I must also discuss some of these facts in order to respond to the Chief Justice's dissent.

      . It appears that this portion of the petition was taken verbatim from a filing in the Court of Civil Appeals, because the husband refers to the Court of Civil Appeals as "this Court.”

      . In fact, Kaufman v. Kaufman, 934 So.2d 1073 (Ala.Civ.App.2005), holds that the judgment dividing the property was to be reversed, in part, because the trial court improperly considered that some assets were not marital assets and improperly considered the parties’ settlement negotiations in making its property division. In Adams v. Adams, 778 So.2d 825 (Ala.Civ.App.2000), the trial court denied a party an equitable share of the marital assets solely on the basis that, in its opinion, the party would likely mismanage the assets. And Cunningham v. Cunningham, 956 So.2d 1157 (Ala.Civ.App.2006), while acknowledging the ratios of the awards in Adams and Kaufman as inequitable, reversed a judgment dividing property because the property division left a disabled party, who was awarded no alimony, with insufficient means to meet her basic expenses. As discussed below, there are no similar facts in the instant case.

      . I believe that to properly state a conflict with prior caselaw as grounds for review the husband would need to state the factors for determining a property division and then show how the specific facts of this case relate to those factors and indicate that the property division he is challenging is inequitable.

      . The trial court also required the wife to assume approximately $426,191 in debt.

      . Though the Court did not award Wife this property, the Court awarded Husband $5,000 of equity from the property, and failed to set aside Wife’s transfer of the property to the Trusts she created.


author: SMITH, Justice. MURDOCK, Justice

text:
    Jason PARHAM v. AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA.
    1070717.
    Supreme Court of Alabama.
    May 29, 2009.
    Joe R. Whatley, Jr., W. Tucker Brown, Adam P. Plant, and Sara C. Hacker of Whatley Drake <& Kallas, LLC, Birmingham; Edith M. Kallas of Whatley Drake & Kallas, LLC, New York City; Lynn W. Jinks III, Christina D. Crow, and Nathan A. Dickson II of Jinks, Crow & Dickson, P.C., Union Springs; and David L. Selby II of Kee & Selby, LLP, Birmingham, for appellant.
    Michael L. Bell and S. Andrew Kelly of Lightfoot, Franklin & White, LLC, Birmingham, for appellee.
    Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amici curiae Business Council of Alabama, Alabama Civil Justice Reform Committee, Automobile Dealers Association of Alabama, and Alabama Bankers Association, in support of the appellee.
   SMITH, Justice.

Jason Parham appeals from a February 6, 2008, order purporting to vacate an arbitration award in Parham’s favor. We dismiss the appeal for lack of subject-matter jurisdiction.

Facts and Procedural History

On January 11, 2007, Jason Parham, individually and as representative of a class, filed a complaint in arbitration with the American Arbitration Association (“the AAA”). Parham’s complaint contained numerous statutory, contract, and tort claims. Parham alleged that American Bankers Insurance Company of Florida (“American Bankers”) had charged Par-ham and other purchasers of an extended warranty, which was designated as the “Home Buyers Protection Plan,” premiums for services the purchasers did not receive. Specifically, Parham alleged that, in August 2003, he purchased from American Bankers an extended warranty for his newly purchased manufactured home; that, under the terms of the extended warranty, coverage would become effective upon expiration of the manufacturer’s one-year warranty and remain effective for 60 months; that the extended warranty actually became effective on the same date as the manufacturer’s warranty; and, as a result, that he had received coverage for only 48 months of the 60-month extended warranty period because the manufacturer’s warranty superseded the extended warranty during the 12-month period that both warranties were in place concurrently. Parham further alleged that “[t]hrough this scheme [American Bankers] has received unearned premiums from [Parham] and others similarly situated.”

On July 30, 2007, in accordance with Rule 3 of the AAA’s Supplementary Rules for Class Arbitrations, the arbitrator issued an order referred to as a “clause construction award.” In that order, the arbitrator concluded that the language of the arbitration clause in the extended warranty permitted Parham to pursue class claims against American Bankers in arbitration and awarded Parham permission to pursue class claims in arbitration accordingly. On August 7, 2007, American Bankers filed in the trial court both a complaint seeking a judgment declaring the arbitrator’s order void and directing the trial court to order the arbitrator to enter an order precluding arbitration of class claims and a motion to vacate the arbitrator’s July 30, 2007, order; in each of those filings, American Bankers contended that the order was due to be vacated because, according to American Bankers, “the Arbitrator exceeded his authority, ignored applicable Alabama law, and improperly reformed the contract at issue.” On September 24, 2007, Parham filed a motion to compel arbitration of the class claims or, in the alternative, to dismiss American Bankers’ complaint for declaratory relief.

On February 6, 2008, the trial court entered an order purporting to grant American Bankers’ motion to vacate and “directing] the Arbitrator to enter a new Clause Construction Award consistent with Alabama substantive law.” This appeal followed.

Discussion

On appeal, Parham argues, among other things, that the trial court’s order vacating the arbitrator’s order is void because, Parham contends, the trial court lacked subject-matter jurisdiction to review that award. Our review of the argument that the trial court lacks subject-matter jurisdiction is de novo. State Dep’t of Revenue v. Arnold, 909 So.2d 192, 193 (Ala.2005).

In Championcomm.net of Tuscaloosa, Inc. v. Morton, 12 So.3d 1197 (Ala.2009), this Court stated:

“With some exceptions not applicable here,4 this Court is without jurisdiction to hear an appeal in the absence of a final judgment. See Hamilton ex rel. Slate-Hamilton v. Connally, 959 So.2d 640, 642 (Ala.2006) (quoting Cates v. Bush, 293 Ala. 535, 537, 307 So.2d 6, 8 (1975)). We therefore must consider whether a final judgment exists from which this appeal may lie.
“In Horton Homes, Inc. v. Shaner, 999 So.2d 462 (Ala.2008), this Court made clear that a judgment entered by the circuit clerk on an arbitration award pursuant to § 6-6-15, Ala.Code 1975, ‘does not become a final appealable judgment until the circuit court has had an opportunity to consider a motion to vacate filed by a party seeking review of the arbitration award.’ 999 So.2d at 467. Furthermore, as this Court observed in Jenks v. Harris, 990 So.2d 878, 882 (Ala.2008), the trial court’s order on such a motion is void unless the circuit clerk has first entered the arbitration award as the judgment of the court.
“It follows from these cases, and, more importantly, from the plain language of § 6-6-15, Ala.Code 1975, which governs the procedure for effecting an appeal in this case,[] that an arbitration award does not constitute a final judgment subject to review in our appellate courts merely upon the filing of the award, along with a notice of appeal, in the appropriate circuit court. See § 6-6-15, Ala.Code 1975 (‘[T]he clerk or register shall enter the [arbitration] award as the judgement of the court. Thereafter, unless within 10 days the court shall set aside the award ... the judgment shall become final and an appeal shall lie as in other cases. In the event the award shall be set aside, such action shall be a final judgement from which an appeal shall lie as in other cases.’ (emphasis added)); cf. Birmingham News Co. v. Horn, 901 So.2d 27, 31 (Ala.2004) (‘On January 13, 2003, the circuit clerk entered the arbitrators’ awards as the judgments of the court. The trial court did nothing further, so that on January 23, 2003, pursuant to Ala.Code 1975, § 6-6-15, the judgments became final.’ (footnote omitted)), overruled on other grounds, Hereford v. D.R. Horton, Inc., 13 So.3d 375, 381 (Ala.2009), and Horton Homes, supra; Collins v. Louisville & Nashville R.R., 70 Ala. 533, 533-34 (1881) (‘In the absence of a statute authorizing it, an appeal, writ of error, or other revisory remedy, will not lie to any court from the award of arbitrators.... The statute (Code of 1876, § 3547) authorizes the courts of primary jurisdiction to enter ... the award of arbitrators, as the judgment or decree of the court ...; and, employing the language of the statute, “from the judgment or decree so entered up, or from the judgment setting aside the award, an appeal shall lie, as in other cases.” ... The statute gives an appeal from that judgment, and not from the award.’).
“4 See Rules 4(a) and 5, Ala. R.App. P.; see also Rule 54(b), Ala. R. Civ. P. (permitting the trial court to ‘direct the entry of final judgment as to one or more but fewer than all the claims or parties’ in an action under certain circumstances).”

12 So.3d at 1199-1200 (footnote omitted).

We find no indication in the record that the clerk of the Shelby Circuit Court entered the arbitrator’s order as the judgment of that court as required under § 6-6-15, Ala.Code 1975; thus, there is no final judgment from which Parham can appeal. Accordingly, the trial court’s February 6, 2008, order is void and is hereby vacated, and this appeal is dismissed. See Harvey v. City of Oneonta, 715 So.2d 779, 781 (Ala.1998) (“A judgment of a court without jurisdiction is void. An appeal will not lie from a void judgment.” (citing, among other cases, Luken v. BancBoston Mortgage Corp., 580 So.2d 578 (Ala.1991))).

JUDGMENT VACATED; APPEAL DISMISSED.

COBB, C.J., and LYONS, WOODALL, STUART, BOLIN, PARKER, and SHAW, JJ., concur.

MURDOCK, J., dissents.

MURDOCK, Justice

(dissenting).

Because I read § 6-6-15, AJa.Code 1975, as providing to a party aggrieved by a circuit judge’s “setting aside” of an arbitration award the right to appeal from that action by the judge regardless of whether the circuit clerk had previously performed the ministerial duty of making a formal entry of the award (which, even if performed, would only have had the effect of converting the award into a preliminary, nonappealable judgment), I respectfully dissent.

Section § 6-6-15 provides for the return of an arbitration award and associated papers to the circuit court (“to the court to which the award is returnable”). Upon that return, the court has jurisdiction over the case. (I am not aware of any situation in which a court’s jurisdiction over a case depends on a preliminary judgment first having been entered by that court in the case, rather than whether the appropriate papers and filing fee have been delivered to the court.) At that juncture, by virtue of the general constitutionally based authority of a circuit judge to act in a case that is in his or her court, the judge has the authority to enter an order in the case setting aside the award. (Nothing in the terms of § 6-6-15 expressly purports to deny the judge this authority.)

Furthermore, the plain language of § 6-6-15 provides that “[i]n the event the award shall be set aside, such action shall be a final judgment from which an appeal shall lie as in other cases.” This final sentence expressly refers to “the award” as that which is to be set aside and expressly states that it is the “action” of “set[ting] aside” the award that constitutes a “final judgment from which an appeal shall lie.”

      . Rule 3 of the AAA's Supplementary Rules for Class Arbitrations provides, in pertinent part, that ‘‘[u]pon appointment, the arbitrator shall determine as a threshold matter, in a reasoned, partial final award on the construction of the arbitration clause, whether the applicable arbitration clause permits the arbitration to proceed on behalf of or against a class (the ‘Clause Construction Award').”

      . On December 10, 2008, this Court adopted Rule 71B, Ala. R. Civ. P., which sets out the procedure for talcing an appeal from an arbitration award and supersedes the procedure set out in § 6-6-15. This Court also adopted Rule 71C, Ala. R. Civ. P., which governs the enforcement of arbitration awards. Rule 71B and Rule 71C became effective February 1, 2009.

      . Championcomm.net of Tuscaloosa, Inc. v. Morton, 12 So.3d 1197 (Ala.2009), is distinguishable. Given the facts of that case, the result therein is consistent with the notion that, if the clerk had performed the ministerial function of entering an award, a preliminary "court judgment" would have been created, which, if not addressed by the trial judge, would automatically have "ripened" after 10 days into a final, appealable judgment. In Championcomm.net, however, neither the clerk nor the judge took any action to enter a judgment upon the arbitration award, and, therefore, no court order or judgment from which an appeal could be taken ever came into existence. The case did not involve a situation where the trial judge, without waiting on the clerk to act, proceeded to enter a judgment affirming the arbitration award or, as here, setting it aside.
      Nor do I read Jenks v. Harris, 990 So.2d 878 (Ala.2008), a recent decision in which I did not participate because it was decided by the division of this Court on which I do not sit, as binding authority on the issue I address here. The issue was not presented in Jenks itself, although a contrary view on this issue was expressed in an earlier, unpublished order (dismissing a previous appeal in the same dispute) that was quoted with approval in Jenks. 990 So.2d at 881-82.


author: PITTMAN, Judge.

text:
    CITY OF DOTHAN v. Earl R. McCLESKEY.
    2070536.
    Court of Civil Appeals of Alabama.
    Nov. 7, 2008.
    Rehearing Denied June 12, 2009.

      F. Lenton White, city atty., City of Do-than, for appellant.
    Jere C. Segrest and Kevin Walding of Hardwick, Hause, Segrest & Walding, Do-than, for appellee.
   PITTMAN, Judge.

The City of Dothan (“the City”) appeals from a judgment of the Houston Circuit Court that reversed a decision of the City of Dothan Personnel Board (“the Board”) upholding the termination of Earl R. McCleskey as a municipal employee.

It is undisputed that the Civil Service Act of Dothan, Act No. 92-442, Ala. Acts 1992 (hereinafter “the Civil Service Act”), governs the procedures for the termination of employees within the City’s classified-service system. It is also undisputed that McCleskey’s employment was terminated by his department head, Billy Mayes. Pursuant to the applicable provisions of the Civil Service Act, a department head may discharge an employee in the classified service, but the employee may appeal from that decision to the Board. McCles-key appealed from the termination of his employment to the Board, which conducted a hearing at which it received evidence and later entered an order affirming the decision to terminate McCleskey’s employment. Pursuant to another provision of the Civil Service Act, McCleskey appealed the Board’s decision to the local circuit court. Following the circuit court’s reversal of the Board’s decision, the City perfected the instant appeal.

McCleskey has filed a motion to dismiss the City’s appeal; relying on his interpretation of the Civil Service Act, he asserts that the City does not have standing to appeal the circuit court’s decision. Because the issue of standing is jurisdictional, we must first address the issue whether the City has standing to bring the appeal in this matter. This court has previously addressed standing in regard to the exact same Board and municipality in City of Dothan Personnel Board v. DeVane, 860 So.2d 881 (Ala.Civ.App.2002). The procedural posture in the two cases is essentially identical. After the Board upheld the City’s termination of DeVane’s employment, he appealed to the Houston Circuit Court and obtained a reversal. However, when the Board attempted to appeal from the circuit court’s decision, this court concluded that the City was the real party in interest and dismissed the appeal. 860 So.2d at 887. Although McCleskey named both the City and the Board as defendants in his petition for judicial review from the Board’s decision, the record is clear that the City, not the Board, has taken the instant appeal. Based upon this court’s decision in De-Vane, McCleskey’s assertion that the City cannot properly appeal from an adverse decision of the circuit court is without merit, and his motion to dismiss the appeal is due to be denied.

“[Appellate] review of cases like this one is limited [and] .... is the same as that of the circuit court.... The decision of an administrative agency will be affirmed unless the appellant can prove that the agency acted in an arbitrary and capricious manner or failed to comply with the applicable law. [Ex parte Personnel Bd. for Mobile County, 637 So.2d 888, 889 (Ala.1994) ]. The Board’s decision ‘must be affirmed if there is substantial evidence to support the [Board’s] findings.’ Id.”

Ex parte City of Dothan Pers. Bd., 791 So.2d 353, 356 (Ala.2000).

In order to determine whether the circuit court properly reversed the Board’s decision, we must also remember that our “review [of the Board’s decision] is limited to the record made before the Board and to questions of law presented.” City of Mobile v. Seals, 471 So.2d 431, 433 (Ala.Civ.App.1985). If there is substantial evidence to support the Board’s determination, the Board’s decision should be affirmed, and a reviewing court may not properly substitute its judgment for that of the Board. Substantial evidence is “relevant evidence ... that might be accepted by reasonable minds as adequate to support a conclusion.” City of Mobile v. Trott, 596 So.2d 921, 922 (Ala.Civ.App.1991). In the administrative-law context, substantial evidence exists if there is “ ‘a rational basis for the conclusions approved by the administrative body.’ ” Seals, 471 So.2d at 434 (quoting Ex parte Morris, 263 Ala. 664, 668, 83 So.2d 717, 720 (1955)). In no event are reviewing courts permitted to judge the wisdom of the decision of the Board. City of Mobile v. Robertson, 897 So.2d 1156, 1159 (Ala.Civ.App.2004) (citing Creagh v. City of Mobile Police Dep’t, 543 So.2d 698 (Ala.Civ.App.1989)). Thus, if the Board properly applied the law and there was substantial evidence to support its decision, that decision is to be affirmed on judicial review. City of Dothan Pers. Bd. v. Herring, 612 So.2d 1231, 1232-33 (Ala.Civ.App.1992).

The evidence presented to the Board tended to show the following pertinent facts. McCleskey had been employed by the City’s utilities department since 1977; by June 2006, McCleskey was serving as the City’s wastewater-collection supervisor. He was responsible for supervising 17 employees and was himself supervised directly by the City’s utilities manager, Billy Mayes.

On July 11, 2006, pursuant to department policy, McCleskey submitted a travel-expense request to Mayes in advance for a training class he planned to attend with two of his subordinates on July 20-21, 2006. The amount McCleskey requested for that out-of-town trip included sums for one night’s lodging, two days’ meals, and fuel for the trip for the three employees; his request in the amount of $335.60 was approved. McCleskey testified that he had received the money before leaving on the two-day trip and that he had paid the expenses and kept up with the receipts for the expenses incurred by the three men. McCleskey testified that, upon their return to Dothan after the class, which had occurred around 6 p.m., the men had agreed to stop at a restaurant to eat supper before going home. Stopping at a restaurant that served chicken, McCleskey suggested to his subordinates that, because they had not spent any money for food that day, each of them could spend up to $25 on their meal; McCleskey also suggested that they “get the best deal for their money.” Thereafter, each man ordered a carry-out meal consisting of 12 pieces of chicken, 3 large side dishes, and 6 biscuits. The receipt from the restaurant indicated that the total cost of those three meals was $74.49.

Pursuant to departmental policy, following the completion of any travel on City business, employees are to submit receipts indicating actual travel expenses incurred, such as for gasoline, hotels, meals, and telephone service; those expenses must be submitted and certified by the employee to his department head. Upon his return to the office, McCleskey submitted to the City’s accounting department receipts from the trip (including the carry-out meal purchase) with his report. After that department returned the expense report to McCleskey’s supervisor for his signature, Mayes advised McCleskey that he believed the $74.49 was used to purchase an unreasonable amount of food for 3 people; he returned the expense report to McCleskey and stated that he would only authorize the expense of 1 12-piece meal for the 3 men, or a total amount of $24.83. Mayes reminded McCleskey that departmental policy required that all expenses paid by the City were to be those of the pertinent employees themselves and that only normal meal expenses were allowed. Mayes concluded by noting that the City’s expense policy specifically stated that “[a]ny employee who willfully claims fraudulent travel expenses shall be subject to legal prosecution and termination.”

McCleskey maintained that the total meal expense was proper, refused to change the expense report, and insisted that Mayes approve the report as submitted. Mayes responded by telling McCles-key that the meal expense was excessive and told McCleskey to correct the report. McCleskey again refused to change the report and told Mayes that he would file a grievance if Mayes did not approve the expense report. Mayes again refused to authorize the expenses, and McCleskey filed a grievance concerning the matter on July 26, 2006.

Mayes testified that he had not made a decision whether to take disciplinary action until after he had interviewed the other two employees who had accompanied McCleskey to the class. However, Mayes stated that, during those interviews, he had learned for the first time that all three men had taken the meals home to share with their families. According to Mayes, McCleskey’s subordinates had volunteered to reimburse the City after learning that City policy allowed travel expenses for City employees only and that Mayes would not approve such an expenditure.

On or about August 3, 2006, Billy Mayes served on McCleskey a “Notice of Determination Hearing and Possible Disciplinary Action.” In that document, McCles-key was charged with violating City rules and policies as follows:

“3.41(11) Improper us of, or failure to exercise, supervisory authority and responsibility;
“3.42(11) Irresponsible use of City’s credit, purchasing authority;
“3.42(19) Other. ‘Influencing the employees under your supervision to be involved with the purchase of a meal that was unreasonable and excessive and stating that it was acceptable to spend the City’s funds in such a way.’
“3.43(5) Deliberate falsification of records and/or personal misrepresentation of statements given to supervisor, officers, the public or boards;
“3.43(19) Other. Fraudulent submission of expense receipts per City of Dothan Standard Operating Guideline No. 2, Fraudulent Claim B. ‘[McCleskey] submitted an expense claim for a meal 1) that a reasonable person would find excessive (a 12 piece chicken dinner with 3 large sides & 6 biscuits) for one person to consume for one meal, 2) that was purchased upon arrival back in Dothan, 3) that was purchased as a carry-out and not [to] eat at the restaurant but to be taken home.’ ”

Although the first three charges had various disciplinary measures associated with them, the two final charges were classified by the rules and policies as an “intolerable offense” and were punishable by termination of employment. An internal “predetermination” hearing was conducted on August 7, 2006. Three days later, Mayes issued his decision that McCleskey had been guilty of all charges stated in the notice, and he terminated McCleskey’s employment as of that date.

On August 15, 2006, McCleskey filed his notice of appeal to the Board. On October 26, 2006, the Board conducted a hearing. At that hearing, McCleskey and Mayes testified; in addition, numerous exhibits were admitted into evidence, including McCleskey’s entire personnel record. Mayes informed the Board that the only reason McCleskey’s employment had been terminated was because he had certified as reimbursable a travel-expense request for the cost of food that had been taken home to be consumed by his family, an action that violated the City’s Standard Operating Guideline No. 2 concerning fraudulent-reimbursement claims. Following the Board’s hearing, but before the Board issued its decision, McCleskey filed paperwork to retire effective January 1, 2007. On January 8, 2007, the Board affirmed Mayes’s decision to terminate McCleskey’s employment. Two days later, McCleskey filed a notice of appeal to the Houston Circuit Court. As noted previously, the circuit court entered a judgment that reversed the Board’s decision. That judgment ordered the Board to reinstate McCleskey; subsequently, the Board filed a motion as a nonparty to modify the judgment, and the City filed a motion to stay the judgment. On October 16, 2007, the circuit court granted the Board’s motion and amended its judgment so as to direct the City to reinstate McCleskey and to refund his backpay and benefits.

As discussed previously, this court’s limited review of the Board’s and the circuit court’s decisions is based solely upon “the record made before the Board and to questions of law presented [there].” City of Mobile v. Seals, 471 So.2d at 433; see also Ex parte City of Dothan Pers. Bd., 791 So.2d at 356. “ ‘This court is likewise governed by the same standard as the [circuit] court; if we conclude that substantial evidence existed to support the Board’s decision, we must uphold it.’ ” City of Mobile v. Robertson, 897 So.2d at 1159 (quoting Creagh v. City of Mobile Police Dep’t, 543 So.2d at 699). Based upon our review of the evidence summarized previously that was presented to the Board during the hearing of McCleskey’s appeal to that body, we conclude that the Board had before it substantial evidence indicating that McCleskey had committed an “intolerable offense.” Thus, Mayes’s termination of McCleskey’s employment was properly affirmed by the Board. Because we have concluded that the Board’s ruling was proper, we must also conclude that the circuit court improperly reversed the decision of the Board. Therefore, that judgment reversing the Board’s decision is hereby reversed, and the cause is remanded with instructions to the circuit court to enter a judgment affirming the Board’s decision.

MOTION TO DISMISS DENIED; REVERSED AND REMANDED WITH INSTRUCTIONS.

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