author: SHAW, Justice.

text:
    Annette CLARK v. WELLS FARGO BANK, N.A.
    1071192.
    Supreme Court of Alabama.
    May 15, 2009.

      Roderick Graham, Birmingham, for appellant.
    D. Keith Andress and James H. White IV of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, for appel-lee.
   SHAW, Justice.

Annette Clark appeals from an order of the Jefferson Circuit Court dismissing, pursuant to Ala.Code 1975, § 6-5-440, her counterclaims against Wells Fargo Bank, N.A. (“Wells Fargo”). We reverse and remand.

Facts and Procedural History

On February 23, 2007, following the foreclosure on the mortgage on property owned by Clark, Wells Fargo filed an ejectment action against Clark in the Jefferson Circuit Court seeking damages for wrongful retention and possession of the foreclosed property, which, the complaint alleged, Clark had refused to vacate. Clark filed an initial answer to Wells Fargo’s complaint on May 14, 2007, which asserted various affirmative defenses but contained no counterclaims.

Meanwhile, on March 23, 2007, Clark had initiated a separate federal action in the United States District Court for the Northern District of Alabama (“the federal court”) against Wells Fargo and other Wells Fargo entities; Edith Pickett, an Alabama attorney, who, the complaint alleged, “was in charge of collecting the false debt in this case”; and Shapiro & Pickett, LLP (“S & P”), the law firm at which Pickett was a partner. As last amended, Clark’s federal action, which indicated that it was brought pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., asserted the following claims stemming from the mortgage foreclosure: violation of the Fair Debt Collection Practices Act (count I); conversion (count II); breach of contract (count III); fraud (count IV); suppression (count V); conspiracy (count VI); negligent and wanton hiring, training, supervision, and retention (count VII); and wrongful foreclosure (count VIII). Clark further sought injunc-tive relief (count IX).

On September 11, 2007, Clark amended her answer in the case pending in the Jefferson Circuit Court to add counterclaims, which included a statement of factual allegations virtually identical to those alleged in Clark’s federal complaint and which asserted the following claims against Wells Fargo: conversion of funds (count I); breach of contract (count II); fraud (count III); voiding of foreclosure sale (count IV); voiding of deed (count V); fraudulent foreclosure (count VI); injunc-tive relief (count VII); and malicious and fraudulent prosecution (count VIII).

Thereafter, on October 3, 2007, Wells Fargo moved to dismiss its complaint on the ground that Clark had vacated the property that was the subject of the foreclosure. The circuit court granted that motion on October 5, 2007.

On December 7, 2007, the federal court apparently dismissed with prejudice counts II, III, and IV against Pickett and S & P; dismissed without prejudice counts I, III, and IV against Wells Fargo; dismissed without prejudice counts I, V, VI, VII, and VIII against Pickett and S & P; dismissed with prejudice count II against Wells Fargo for failure to state a claim; struck counts IX and X; and afforded Clark 15 days to amend her complaint accordingly. The federal court’s case-action summary further indicates that Clark filed an amended complaint on December 21, 2007.

On January 14, 2008, Wells Fargo moved the Jefferson Circuit Court, pursuant to Ala.Code 1975, § 6-5-440, to dismiss Clark’s counterclaims on the ground that the counts asserted as counterclaims in the circuit court action were “virtually identical to the allegations filed by Clark against Wells Fargo in the Federal District Court for the Northern District of Alabama” and that Clark was unable to maintain two actions against Wells Fargo based on a single dispute. In opposition to the motion to dismiss filed by Wells Fargo, Clark argued that § 6-5-440, which prohibits simultaneous actions for the same cause against the same party, does not apply here because, she said, that section “applies to situations where a plaintiff files a lawsuit in federal court and then files the same lawsuit in state court” and is thus inapplicable to situations in which the first-filed suit is in the state court.

The circuit court conducted a hearing on Wells Fargo’s motion on January 18, 2008. Without making written findings of fact, the circuit court granted Wells Fargo’s motion and dismissed Clark’s counterclaims on March 14, 2008. Clark subsequently filed a motion to alter, amend, or vacate that decision and a contemporaneous motion for additional findings of fact or conclusions of law, both of which were opposed by Wells Fargo. The circuit court denied Clark’s motions. Thereafter, Clark filed a “renewed” motion to alter, amend, or vacate, which was likewise denied. Clark appeals.

Standard of Review

“When the facts underlying a motion filed pursuant to § 6-5-440 are undisputed, as is the case here, our review of the application of the law to the facts is de novo. Greene v. Town of Cedar Bluff, 965 So.2d 773, 779 (Ala.2007).” Ex parte Metropolitan Prop. & Cas. Ins. Co., 974 So.2d 967, 969 (Ala.2007).

Discussion

On appeal, Clark argues, as she did below, that the circuit court erred in dismissing her counterclaims in the state-court action because, she says, § 6-5-440 does not provide for the dismissal of a state-court action when it is the first-filed action and a second, identical action is later filed in a federal court. We agree.

“The petitioners contend that the ‘cross-claims’ filed ... in the Clarke County action must be dismissed pursuant to Ala.Code 1975, § 6-5-440, which generally prohibits a plaintiff from maintaining duplicate actions:
“ ‘No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times.’
“This Code section, by its plain language, forbids a party from prosecuting two actions for the ‘same cause’ and against the ‘same party.’ This Court has previously held that an action pending in a federal court falls within the coverage of this Code section:
“ ‘ “The phrase ‘courts of this state,’ as used in § 6-5-440, includes all federal courts located in Alabama. This Court has consistently refused to allow a person to prosecute an action in a state court while another action on the same cause and against the same parties is pending in a federal court in this State.” ’
“Ex parte University of South Alabama Found., 788 So.2d 161, 164 (Ala.2000) (quoting Weaver v. Hood, 577 So.2d 440, 442 (Ala.1991) (citations in Weaver omitted in University of South Alabama)). Additionally, a compulsory counterclaim is considered an ‘action’ for purposes of § 6-5-440. Penick v. Cado Sys. of Cent. Alabama, Inc., 628 So.2d 598, 599 (Ala.1993).”

Ex parte Norfolk S. Ry., 992 So.2d 1286, 1289-90 (Ala.2008).

Our caselaw provides that, for purposes of § 6-5-440, when a compulsory counterclaim exists, a defendant is considered a “counterclaim plaintiff’ at the time the underlying action is initiated:

“ ‘This Court has held that the obligation ... to assert compulsory counterclaims, when read in conjunction with § 6-5-440, Ala.Code 1975, which prohibits a party from prosecuting two actions for the same cause and against the same party, is tantamount to making the defendant with a compulsory counterclaim in the first action a “plaintiff’ in that action (for purposes of § 6-5-440) as of the time of its commencement. See, e.g., Ex parte Parsons & Whittemore Alabama Pine Constr. Corp., 658 So.2d 414 (Ala.1995); Penick v. Cado Systems of Cent. Alabama, Inc., 628 So.2d 598 (Ala.1993); Ex parte Canal Ins. Co., 534 So.2d 582 (Ala.1988). Thus, the defendant subject to the counterclaim rule who commences another action has violated the prohibition in § 6-5-440 against maintaining two actions for the same cause.’
“Ex parte Breman Lake View Resort, L.P., 729 So.2d 849, 851 (Ala.1999). See also [Ex parte] University of South Alabama Found., 788 So.2d [161] at 165 [ (Ala.2000) ] (holding that a party in an action pending in a federal court was subject to the counterclaim rule and thus violated § 6-54140 by commencing another action in a state court); Ex parte Parsons & Whittemore Alabama Pine Constr. Corp., 658 So.2d 414 (Ala.1995) (holding that the prosecution in a subsequent action of claims that had been compulsory counterclaims in a previously filed declaratory-judgment action violated § 6-5-440).”

Ex parte Norfolk S. Ry., 992 So.2d at 1289-90 (emphasis added). See also Little Narrows, LLC v. Scott, 1 So.3d 973 (Ala.2008); Ex parte J.C. Duke & Assocs., Inc., 4 So.3d 1092 (Ala.2008). Therefore, for purposes of applying § 6-5-440, when a defendant has the obligation to file a compulsory counterclaim, that defendant is considered a counterclaim plaintiff at the time the action is commenced.

Here, Clark actually filed the federal action before asserting her counterclaims in the state-court action. However, Clark’s claims against Wells Fargo must be considered compulsory counterclaims because they are both logically related to and arose out of the same circumstances that gave rise to Wells Fargo’s original ejectment claim. See J.C. Duke & Assocs., 4 So.3d at 1094 (“ ‘Under the logical-relationship test “[a] counterclaim is compulsory if there is any logical relation of any sort between the original claim and the counterclaim.” Committee Comments on the 1973 adoption of Rule 13, ¶ 6.’ ” (quoting Bedsole v. Goodloe, 912 So.2d 508, 521 (Ala.2005))). See also Calhoun v. Pennsylvania Nat’l Mut. Cas. Ins. Co., 676 So.2d 1332, 1333 (Ala.Civ.App.1996) (“Both Rule 13(a), Ala. R. Civ. P., and Rule 13(a), Fed. R.Civ.P., require a party to file as a counterclaim ‘any claim ... the pleader has against any opposing party5 that arises out of the same transaction or occurrence involved in the opposing party’s claim.”); Mississippi Valley Title Ins. Co. v. Hardy, 541 So.2d 1057, 1062 (Ala.1989) (“[I]n a suit against a lender to set aside a note, the lender must, in addition to filing an answer, assert a compulsory counterclaim for any equitable relief to which the lender would be entitled if the Court were to decide to set aside the note.”); and Brooks v. Peoples Nat’l Bank of Huntsville, 414 So.2d 917, 919 (Ala.1982) (concluding that, because the claims based on default on a note and foreclosure on a mortgage arose from a single, continuous loan transaction, because the evidence was overlapping, because the claims arose from a single set of facts, and because they were “ ‘logically related,’ ” the claims were compulsory counterclaims in an action for fraud in the inducement of the execution of the note). Because Clark’s counterclaims are compulsory, under the relation-back doctrine, Clark became “a ‘plaintiff in [the state-court] action (for purposes of § 6-5^40) as of the time of its commencement” on February 23, 2007, when Wells Fargo first filed its ejectment complaint. Norfolk S. Ry., 992 So.2d at 1290. See also Liberty Mut. Ins. Co. v. Wheelwright Trucking Co., 851 So.2d 466, 485 (Ala.2002). Thus, Clark is correct in asserting that the state-court action is to be considered the first-filed action for the purposes of § 6-5-440.

Because Clark’s state-court action is considered to have been filed before the action in the federal court, § 6-5-440 does not apply.

“Unquestionably, the statutory and case law of this state stands for the proposition that a person cannot prosecute two suits at the same time, for the same cause against the same party. The purpose of the rule is to avoid multiplicity of suits and vexatious litigation. Title 7, § 146, Code; Foster v. Napier, 73 Ala. 595 (1883); Sessions v. Jack Cole Co., 276 Ala. 10, 158 So.2d 652 (1963). The rule had been applied where one suit is filed in federal court and another is filed in state court, and this Court has held that a state court action can be abated if there is pending a federal court action involving the same cause against the same party. Fegaro v. South Central Bell, 287 Ala. 407, 252 So.2d 66 (1971); Watson v. Mobile & O. RR., 233 Ala. 690, 173 So. 43 (1937). It should be noted, however, that in Fegaro and Watson, the state suit was filed after the federal suit was filed. In other words, to quote Alabama’s statute, ‘the pendency of the former (federal suit) is a good defense to the latter (state suit).’ We are faced with the opposite situation here. The question is: Does the rule of Fegaro and Watson apply? We think not.
“Had Brown Service and Liberty National attempted to get the second suit in federal court abated, they would have failed. The federal rule is summarized in Ermentrout v. Commonwealth Oil Co., 220 F.2d 527 (5th Cir.1955):
“ ‘... [T]he pendency of a state court action in personam is no ground for abatement or stay of a like action in the federal court, although the same issues are being tried and the federal action is subsequent to the state court action. The federal court may not abdicate its authority or duty in favor of the state jurisdiction.’ [Citations omitted.]”

Johnson v. Brown-Serv. Ins. Co., 293 Ala. 549, 551, 307 So.2d 518, 520 (1974). See also First Tennessee Bank, N.A. v. Snell, 718 So.2d 20, 27 n. 3 (Ala.1998) (See, J., concurring in the result) (“I note that this Court has properly held that Alabama’s statutory abatement rule does not operate where the first-filed action is pending in a state court and the second-filed action is pending in a federal court. The abatement statute does not provide for abatement of first-filed actions, and cannot abate federal court actions.”).

Although this result may be coun-terintuitive given the clear statutory prohibition against the prosecution of identical claims in two courts simultaneously, such a result was specifically contemplated in Johnson, in which the Court stated:

“The trial judge admits that the federal court would not have abated the federal action because the state suit was pending, but would have allowed both suits to proceed at once. He contends, however, that the Alabama rule differs, and that he, as trial judge, could have dismissed the state court suit, instead of requiring the plaintiffs to make an election, as he did. Brown Service and Liberty National, in support of the trial judge’s argument, say, in brief, as follows:
“‘If both of Petitioners’ suits had been filed in two State courts, the decisions of this court and the statute itself would have demanded, upon the issue being raised by a plea, that the second action be abated. If the suits had been filed simultaneously, an election would have been required by the statute [ (§ 6-5-440, AJa.Code 1975) ]. In the instant situation, however, the suit in the State court was filed first; the suit in the Federal court was filed second. If the order of filing had been reversed; that is, the Federal suit filed first and the State suit filed second, the statute and the decisions of this court would have required abatement of the second suit. The rule is not so lacking in substance and reason that the order of the filing of the suits should deny the effect of the rule. For example, in the City of Birmingham the United States Courthouse is within two blocks of the State Courthouse. If a lawyer starts with two complaints in his pocket, each by the same plaintiff against the same defendant for the same cause, and walks to the Federal Courthouse first to file his suit, then to the State Courthouse to file his suit there, the rule applies. Upon the issue being raised in the State court, the suit must be abated. But if this same lawyer, with these same complaints, were to intentionally or unintentionally walk to the State Courthouse first and file the process, then to the Federal Courthouse and file the same process, would he fortuitously or intentionally defeat the rule?’
“We answer the question posed in brief in the affirmative. We think the priority or order in which the suits are filed has some significance.”

293 Ala. at 551-52, 307 So.2d at 520. Further, in order to effect the intended purpose of the statute of “avoiding] multiplicity of suits and vexatious litigation,” Johnson, 293 Ala. at 551, 307 So.2d at 520, even though it may not dismiss the first-filed state action, the state court does have other options at its disposal, including a stay of all state-court proceedings pending the outcome of the federal action. See 1 Am.Jur.2d Actions § 72 (2008); E.H. Schopler, Annotation, Stay of Civil Proceedings Pending Determination of Action in Federal Court in Same State, 56 A.L.R.2d 335 (1957).

Finally, Wells Fargo has not provided any contrary authority demonstrating that § 6-5-440 is applicable in this case. In fact, in its brief to this Court, Wells Fargo acknowledges that “[t]he abatement statute does not apply if a plaintiff files a lawsuit in state court, and then the plaintiff later files the same lawsuit in federal court.” (Wells Fargo’s brief, at p. 16.) In support of that statement, Wells Fargo cites this Court’s decision in Ex parte La-Coste, 733 So.2d 889 (Ala.1998), in which we concluded that, because the named defendant in the plaintiffs first-filed state-court action had not yet been named as a defendant in substantially similar class-action litigation pending in federal court at the time the plaintiffs state-court action was filed, the plaintiffs action “was not subject to dismissal under § 6-5-440.” 733 So.2d at 894.

Conclusion

For the foregoing reasons, the circuit court’s dismissal of Clark’s state-court counterclaims was improper. Therefore, we reverse the order of the circuit court dismissing Clark’s counterclaims, and we remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and LYONS, WOODALL, and PARKER, JJ., concur.

      . This case was originally assigned to another Justice on this Court. It was reassigned to Justice Shaw on February 6, 2009.

      . The circuit court inadvertently dismissed the entire action, including Clark’s counterclaims, in its October 5 order. Clark later filed a motion to reinstate her counterclaims, which the circuit court granted on December 13, 2007.

      . The copy of Clark's federal complaint, which was included as an exhibit to Wells Fargo’s motion to dismiss, does not include a count X.

      . Although Clark included a copy of the federal court's case-action summary in support of both motions to alter, amend, or vacate the judgment, the record does not include a copy of the federal court's order dismissing the various counts.

      . The circuit court's written order indicates that it was entered on March 14, 2007. However, because both the hearing date and the circuit clerk’s stamp record the year as 2008, we assume that the entry date in the order is merely a typographical error.

      .Clark's "renewed” motion to alter, amend, or vacate "was a nullity and did not suspend the 42-day time period for filing a notice of appeal from running.” Triplett v. Wal-Mart Stores, Inc., 857 So.2d 836, 838 (Ala.Civ.App.2003) (citing Humphries v. Humphries, 726 So.2d 698 (Ala.Civ.App.1998)). Nevertheless, Clark's notice of appeal was filed within 42 days of the entry of the order being appealed.

      . Wells Fargo contends that the filing of the counterclaims does not "relate back” to the filing of the complaint, and it further argues that this Court has previously "refused to adopt the relation back doctrine 'in the context of proceedings in which a party invokes § 6-5-440.' ” Wells Fargo’s brief, at p. 17 (quoting Ex parte Metropolitan Prop. & Cas. Ins. Co., 974 So.2d at 971-72). This Court, however, did not address the relation-back issue raised in Ex parte Metropolitan because the appellant there failed to include "any argument or authority (a) as to whether Metropolitan’s amended complaint relate[d] back to the date of filing of the initial complaint and, if so, (b) whether the 'legal fiction’ of relation back should apply in the context of proceedings in which a party invokes § 6-5-440.” 974 So.2d at 971-72 (footnote omitted). Contra, Norfolk S. Ry. and Liberty Mut. Ins. Co.


source: Caselaw Access Project

author: COBB, Chief Justice.

license: Public Domain

text:
    Sarah MOSLEY v. BROOKWOOD HEALTH SERVICES, INC., d/b/a Brookwood Medical Center.
    1071533.
    Supreme Court of Alabama.
    May 22, 2009.

      M. Clay Alspaugh of Smith & Alspaugh, P.C., Birmingham, for appellant.
    Thomas A. Kendrick and Holly S. Bell of Norman, Wood, Kendrick & Turner, Birmingham, for appellee.
   COBB, Chief Justice.

Sarah Mosley appeals from a summary judgment entered by the Jefferson Circuit Court in favor of Brookwood Health Services, Inc., d/b/a Brookwood Medical Center (“Brookwood”). We affirm.

Facts

On March 19, 2003, Mosley was admitted to the intermediate-care unit 2 (“IMCU-2 unit”) of the psychiatric department at the Brookwood Medical Center to be treated for depression.

While Mosley was in the IMCU-2 unit, another patient (“patient A”) was also receiving treatment there. Patient A had been admitted to the IMCU-2 unit for treatment of schizophrenia, agitation, violent behavior, and paranoia. Patient A’s medical records indicate that she was admitted to the hospital in part because she had been “picking fights with almost everyone around her.” The staff at Brook-wood Medical Center was under instructions to monitor and observe the patients in the IMCU-2 unit at 15-minute intervals and to note their observations. At 9:15 a.m. and again at 9:30 a.m. on March 20, 2003, patient A was at the nurses’ station, and she was agitated and combative. Patient A hit, kicked, cursed, and shoved staff members, including Brenda Freeman, a mental-health technician. Patient A was then placed in “time out” (i.e., she was sent to her room to be separate from the other patients for 15 minutes; the door to patient A’s room was unlocked). During the staffs 15-minute observations of patient A from 9:45 to 11:45 a.m., patient A remained quiet, staying either in her room or at the nurses’ station. Then, at some time between the staffs observation of patient A at 12:00 p.m. and the next scheduled observation of her at 12:15 p.m. on March 20, 2003, patient A attacked Mosley in Mosley’s room. Mosley cried out, and patients and staff went to her assistance. Mosley reported that patient A had pulled her hair and smashed her head on the floor. Patient A was subsequently transferred to a different psychiatric unit at Brookwood Medical Center.

Freeman testified in deposition that the procedures in the IMCU-2 unit required the staff to place combative patients in “time out” for 15 minutes. If the patient remained combative after the 15-minute “time out,” the staff was to contact the patient’s doctor and, if the doctor so ordered, to seclude the patient by placing the patient in a locked room used for that purpose.

Procedural History

On March 21, 2005, Mosley filed the instant medical-malpractice action against Brookwood. On March 27, 2007, Brook-wood filed a motion for a summary judgment. The trial court withheld ruling on Brookwood’s summary-judgment motion to allow Mosley further time for discovery. On June 23, 2008, after further proceedings and a hearing on the summary-judgment motion, the trial court entered a summary judgment in favor of Brookwood. Mosley appealed.

Standard of Review
“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 588 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12.”

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

Analysis

This medical-malpractice action is governed by the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-541 et seq., Ala.Code 1975 (“the AMLA”). See Mock v. Allen, 783 So.2d 828, 832 (Ala.2000) (noting that the AMLA “applies ‘[i]n any action for injury or damages or wrongful death, whether in contract or in tort, against a health care provider for breach of the standard of care.’ ” (quoting § 6-5-548(a), Ala.Code 1975)). “To prevail on a medical-malpractice claim, a plaintiff must prove ‘ “1) the appropriate standard of care, 2) the [health-care provider’s] deviation from that standard, and 3) a proximate causal connection between the [health-care provider’s] act or omission constituting the breach and the injury sustained by the plaintiff.” ’ ” Giles v. Brookwood Health Servs., Inc., 5 So.3d 533, 549 (Ala.2008) (quoting Pruitt v. Zeiger, 590 So.2d 236, 238 (Ala.1991), quoting in turn Bradford v. McGee, 534 So.2d 1076, 1079 (Ala.1988)).

Mosley alleges that Brookwood negligently failed to seclude patient A by placing her in a locked room used for that purpose after patient A’s combative behavior around 9:15 a.m. and negligently failed to contact a doctor for authorization to so seclude patient A. In support of this argument, Mosley relies on Freeman’s deposition testimony to establish the standard of care. Freeman testified that the standard of care required staff members in the IMCU-2 unit to place combative patients in “time out” for 15 minutes. According to Freeman, if the patient remained combative after the “time-out” period, the standard of care would have required the staff to contact a doctor to obtain further orders. If the doctor so ordered, the staff was then to seclude the combative patient in a locked room. Mosley produced no evidence indicating that Freeman or any other member of the staff of Brookwood Medical Center failed to follow these procedures. The undisputed evidence demonstrates that the staff placed patient A in “time out” when patient A was combative around 9:15 a.m. and again at 9:30 a.m., that patient A was not combative at the expiration of the “time-out” period, that patient A was monitored and observed at 15-minute intervals, and that patient A remained calm and noncombative until she attacked Mosley between 12:00 and 12:15 p.m. Thus, according to the standard of care as testified to by Freeman, from the time patient A became calm after the “time out” until she attacked Mosley, the staff had no duty to take further steps to isolate patient A from the other patients or to contact a doctor for authorization to seclude patient A in a locked room. Because the undisputed evidence demonstrates that Brookwood acted in accordance with the standard of care in isolating patient A, the trial court’s judgment is not due to be reversed on the issue of the standard of care. See Giles, 5 So.3d at 549 (holding that summary judgment was proper when the plaintiff did not present evidence indicating that a physician failed to act in accordance with the applicable standard of care).

Mosley also alleges that Brook-wood failed to properly monitor Mosley. Freeman testified that the general practice in the IMCU-2 unit was to monitor the patients every 15 minutes. Mosley accepts this practice as being within the standard of care. The evidence demonstrates that Freeman monitored Mosley at 15-minute intervals on March 20, 2003, including at 12:00 p.m. and 12:15 p.m. Relying on what she perceives as discrepancies in Brook-wood’s records, Mosley seems to question whether this evidence was fabricated after the fact and whether the staff indeed monitored Mosley at those times. However, Mosley presents no evidence to demonstrate that monitoring her at 15-minute intervals could have prevented the attack, which it is undisputed occurred between 12:00 and 12:15. Accordingly, with regard to Brookwood’s alleged negligence in monitoring Mosley, the trial court did not err in entering the summary judgment. See Crutcher v. Williams, 12 So.3d 631, 648 (Ala.2008)(opinion on return to second remand) (“[T]o prevail on a medical-malpractice claim ... the plaintiff must prove that a breach of the standard of care ... proximately and probably caused actual injury to the plaintiff.”).

Mosley also alleges that Brook-wood breached the standard of care by not responding promptly to the attack. However, Mosley cites no evidence as to the standard of care for responding to such an attack, and no evidence that any alleged delay in coming to Mosley’s assistance caused or contributed to her injuries. Therefore, with regard to Brookwood’s alleged negligence in responding to the attack, the trial court did not err in entering the summary judgment. See Giles, 5 So.3d at 548 (“To prevail on her medical-malpractice claim ... [the plaintifij must prove, among other things, that [the medical-services provider] violated the duty to ‘ “exercise such reasonable care, diligence, and skill as physicians ... in the same general neighborhood, and in the same general line of practice, ordinarily have and exercise in a like case.” ’ ” (quoting Pruitt, 590 So.2d at 238, quoting in turn Ala.Code 1975, § 6-5-484(a))); cf. McAfee v. Baptist Med. Ctr., 641 So.2d 265 (Ala.1994) (holding that, absent proof of actual injury caused by alleged delay in the diagnosis and treatment of disease, plaintiffs could not recover on their AMLA claims against medical-services providers).

Conclusion

No genuine issue of material fact exists, and Brookwood is entitled to judgment as a matter of law. Therefore, we affirm the summary judgment for Brookwood. See Rule 56(c), Ala. R. Civ. P.

AFFIRMED.

LYONS, STUART, BOLIN, and MURDOCK, JJ„ concur.

      . March 20, 2005, was a Sunday.

      . Freeman, a mental-health technician, is not a licensed nurse. Brookwood argues that Freeman’s testimony cannot be used to establish the standard of care for licensed nurses and the IMCU-2 unit as a whole because, according to Brookwood, Freeman is not a "similarly situated” health-care provider as required under § 6-5-548, Ala.Code 1975. Mosley argues to the contrary. Mosley further argues that, in any event, Freeman may at least testify as to the standard of care governing the mental-health technicians, including Freeman, who Mosley alleges negligently allowed the attack to occur. We need not address these arguments, however, because, as we explain in this opinion, even using the standard of care described by Freeman, Mosley did not produce substantial evidence indicating that any of the staff of Brookwood Medical Center breached that standard of care.


author: MURDOCK, Justice.

text:
    WASHINGTON MUTUAL BANK, F.A. v. Randall R. CAMPBELL.
    1060616.
    Supreme Court of Alabama.
    May 22, 2009.

      John G. Smith and Louis M. Calligas of Balch & Bingham, LLP, Montgomery, for appellant.
    Submitted on appellant’s brief only.
   MURDOCK, Justice.

Washington Mutual Bank, F.A. (“WMB”), appeals from an order of the Etowah Circuit Court granting Randall R. Campbell’s “motion for clarification” of the circuit court’s judgment of October 13, 2004, purportedly filed pursuant to Rule 60(b)(6), Ala. R. Civ. P. We reverse.

I. Facts and Procedural History

On February 27, 2002, Campbell purchased a house in Etowah County, procuring a loan for the purchase through Citizens Bank in Elizabethtown, Tennessee. As a requirement for closing, Campbell had to obtain hazard insurance on the property, had to designate Citizens Bank as the co-beneficiary of the insurance, and had to prepay 11 months of insurance premiums into an escrow account held by Citizens Bank. Following the closing on the property, Citizens Bank assigned the loan and all the rights and obligations thereto to WMB.

In the circuit court, Campbell alleged that he paid the proper amount at closing for escrow on the hazard insurance and that he subsequently paid each monthly installment of principal and interest on the loan and the amount required to be placed in escrow for the hazard insurance on the property. Campbell alleged that despite the fact that he paid the proper amount each month, WMB failed to pay the premiums on the hazard insurance. As a result, the hazard-insurance policy was canceled and, according to Campbell, WMB force-placed new hazard-insurance coverage on the property; the monthly premium for the new coverage was dramatically higher. Thereafter, WMB demanded a sharply increased monthly payment, which included an amount to cover the new insurance premiums and which Campbell allegedly paid in a timely fashion. According to Campbell, at some time WMB stopped accepting his payments, and it notified him of its intent to foreclose on the mortgage.

Through its answer, WMB admitted that it force-placed new hazard-insurance coverage on the property, but it denied that it was at fault for the cancellation of the original policy. WMB stated that after the new insurance was in place and Campbell’s monthly mortgage payment had increased, Campbell paid only the original amount called for in the mortgage note, not the increased payment or any amount toward the escrow reserve established for the insurance. WMB alleges that between April and September 2003 it sent Campbell numerous foreclosure notices, detailing the actions Campbell needed to take to avoid foreclosure on his property. WMB says that despite his financial ability to pay, Campbell steadfastly refused to pay the amounts required to keep the loan and the insurance current. Accordingly, on April 20, 2004, WMB foreclosed on Campbell’s mortgage. WMB claimed that from that time forward, Campbell stopped making payments of any kind to WMB.

After the foreclosure, Campbell refused to leave the premises. Subsequently, Federal National Mortgage Association, commonly referred to as “Fannie Mae,” filed an ejectment action in the Etowah Circuit Court against Campbell, which was subsequently dismissed.

On August 6, 2004, Campbell filed an action against WMB in the United States District Court for the Northern District of Alabama, alleging claims of breach of contract, negligence and/or wantonness, fraud, violation of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq., and equitable relief stemming from the cancellation of the original hazard-insurance policy, the force-placing of new insurance, and the subsequent foreclosure on his property (“the federal action”). On August 10, 2004, Campbell filed an action in the Etowah Circuit Court against WMB and fictitiously named defendants, claiming wrongful foreclosure and seeking damages for loss of hazard-insurance coverage, the adverse effect on his credit rating, and extreme mental anguish (“the instant action”). It is this state-court action that is the subject of this appeal.

On October 13, 2004, pursuant to an oral motion to dismiss by WMB, the circuit court signed a written judgment dismissing the instant action pursuant to Rule 41(b), Ala. R. Civ. P. The judgment provided, in pertinent part:

“This cause comes before the Court on [WMB’s] oral motion to dismiss pursuant to Rule 41(b) of the Alabama Rules of Civil Procedure for failure of [Campbell] to prosecute and comply with an order of the Court, and it appearing to the satisfaction of the Court that said motion is due to be and is hereby GRANTED.
“It is therefore, ORDERED, ADJUDGED, and DECREED by the Court that the complaint in the above-referenced matter is DISMISSED pursuant to Rule 41(b) of the Alabama Rules of Civil Procedure.”

The judgment was entered on the same date, October 13, 2004, when it was filed with the circuit clerk. Also on October 13, 2004, the circuit clerk’s office typed the full text of the circuit court’s separate written judgment onto the case-action-summary sheet, including the following signature line: 7S/ WM. H. RHEA, III, CIRCUIT JUDGE.” The case-action-summary sheet indicates that copies of the circuit court’s written judgment were forwarded by mail to counsel for each of the parties.

Thirteen days later, on October 26, 2004, the circuit clerk’s office added the following statement to the case-action-summary sheet: “DISPOSED ON: 10/13/2006 BY (DISM W/O PREJ).” Unlike the circuit court’s separate written judgment of October 13, 2004, the record contains no indication that the parties were in any way notified of the October 26, 2004, entry on the case-action-summary sheet.

WMB filed a motion for a summary judgment in the federal action, contending that the federal action was barred by the doctrine of res judicata based on the circuit court’s October 13, 2004, order in the instant action. On August 1, 2006, the federal district court placed the federal action on its administrative docket and asked the parties to seek clarification in the circuit court concerning whether the October 13, 2004, order dismissed the instant action with or without prejudice. Thereafter, on September 21, 2006, Campbell filed a motion in the circuit court styled as a “motion for clarification,” purportedly invoking Rule 60(b)(6), Ala. R. Civ. P., and asking the circuit court to “clarify that the intention of its October 13, 2004 Order was to be a Dismissal without Prejudice.” Campbell contended that his “motion for clarification” was being filed “within the ‘reasonable time limits’ allowed by Rule 60(b)(6)” because he had not been aware that the October 13, 2004, order needed clarification until WMB filed its motion for a summary judgment in the federal action claiming res judicata as a defense. Campbell averred in a subsequent filing that he had “always taken the position .... that [the circuit court’s] Order was a dismissal without prejudice” and that “[t]here was no reason for [Campbell] to seek modification from this Court’s previous order because [Campbell] believed the Order was a dismissal without prejudice.”

On September 21, 2006, the same day Campbell filed his motion, the circuit court issued an order that provided that the October 13, 2004, order “was intended to be made WITHOUT prejudice.” Following an objection by WMB, however, the circuit court vacated its September 21, 2006, order and set the matter for a hearing. On September 27, 2006, WMB filed its written response to Campbell’s motion for clarification, in which WMB generally disputed the grounds for relief asserted in that motion. WMB stated in its response that on January 27, 2005, its counsel sent a letter to Campbell’s counsel explaining that, based on the state court’s judgment of dismissal, WMB intended to assert the defense of res judicata in the federal action. WMB also averred in its written response that it had asserted the defense of res judicata in the federal action in its answer filed on June 30, 2005, in a motion for a summary judgment, in briefs filed on September 30, 2005, and November 1, 2005, in support of that motion, and, finally, in a renewed motion for a summary judgment filed on May 18, 2006.

Following a hearing, the circuit court on December 29, 2006, issued an order that reinstated its September 21, 2006, order and provided, in pertinent part:

“The above-styled matter is before this Court on [Campbell’s] Rule 60(b)(6)[, Ala. R. Civ. P.,] Motion to clarify this Court’s October 13, 2004 Order to Dismiss. After reviewing the exhibits and [Campbell’s] Rule 60(b)(6) Motion, and based upon this Court’s original intentions with the October 13, 2004 Order to Dismiss, it is hereby ORDERED that the October 13, 2004 Order to Dismiss was intended to be made WITHOUT prejudice and the Original October 13, 2004 Order to Dismiss should be amended, as needed, to reflect that it was a dismissal without prejudice.”

WMB appeals from the circuit court’s December 29, 2006, order purporting to clarify the October 13, 2004, order dismissing the instant action.

II. Analysis

A. The Show-Cause Order

“The grant of a Rule 60(b)[, Ala. R. Civ. P.,] motion is generally treated as interlocutory and not appealable.” Ex parte Short, 434 So.2d 728, 730 (Ala.1983). Accordingly, on August 22, 2007, this Court ordered WMB to show cause why the circuit court’s December 29, 2006, order was appealable.

An order granting a Rule 60(b), Ala. R. Civ. P., motion generally is not appealable because “further proceedings are contemplated by the trial court.” Ex parte Overton, 985 So.2d 423, 424 (Ala.2007). When a “circuit court’s order [granting relief under Rule 60(b) ] was final because no further proceedings were contemplated in the circuit court,” however, we have held that the order should be “treated as a final judgment for purposes of appeal.” Id. (citing Sanders v. Blue Cross-Blue Shield of Alabama, Inc., 368 So.2d 8 (Ala.1979)). See generally § 12-22-2, Ala.Code 1975 (providing that an appeal lies from “any final judgment of the circuit court”).

WMB contends that the circuit court’s order is appealable because, although it purported to alter the final judgment in the instant action from a dismissal with prejudice to a dismissal without prejudice, it nonetheless was a dismissal and therefore constituted a final judgment. Consistent with the above-stated principles, we agree that the circuit court’s order acted as a final judgment in the instant action. We therefore will consider the merits of WMB’s appeal.

B. Standard of Review

“Whether to grant or to deny relief under Rule 60(b)(6) is within the discretion of the trial judge, and the trial judge’s ruling on that question will not be reversed except for an abuse of that discretion.” Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.1995). An appeal from an order granting or denying a Rule 60(b) motion “presents for review only the correctness of the trial court’s order on the motion.” Combs v. Alabama Gas Corp., 577 So.2d 1269, 1271 (Ala.1991). Finally, “[w]hile we recognize that the decision to grant or deny a Rule 60(b)(6) motion is within the discretion of the trial court, ... this discretion ... is not unbridled.” Chambers County Comm’rs v. Walker, 459 So.2d 861, 866 (Ala.1984).

C. Campbell’s “Motion for Clarification” of the October IS, 2004, Order

Beyond the fact that the October 26, 2004, statement was placed on the case-action-summary sheet by someone in the circuit clerk’s office, the record contains no indication that this statement was authorized by the circuit court. Before this statement was placed on the case-action-summary sheet, the circuit court’s actual judgment of October 13, 2004, was duly rendered and entered in compliance with Rule 58, Ala. R. Civ. P., as it then provided. Specifically, the circuit court rendered judgment by “executing a separate written document” in the form of the October 13, 2004, judgment described above. See Rule 58(a), Ala. R. Civ. P. (describing methods for the rendition of judgments and orders). This judgment was then duly entered in compliance with Rule 58(c), as it read at that time, both by the filing of that separate judgment with the clerk and by the entry by the clerk of a notation of the judgment (in this case, a verbatim recitation of the judgment) on the case-action-summary sheet. See Rule 58(c) (describing methods for the entry of judgments and orders); see also Rule 5(e) (defining “filing”). Both of these entries of the circuit court’s actual judgment were made on October 13, 2004, the same date that that judgment was rendered by the circuit court. Consequently, the circuit clerk’s placement of a notation on the case-action-summary sheet on October 26, 2004, stating that the action was dismissed without prejudice, was superfluous to the prior entries of the actual judgment.

Further, nothing in the October 13, 2004, judgment itself indicates that the circuit court intended its dismissal to be without prejudice. The October 13 judgment stated that WMB’s motion to dismiss was granted for “failure of [Campbell] to prosecute and comply with an order of the Court.” Moreover, the judgment explicitly ordered dismissal “pursuant to Rule 41(b) of the Alabama Rules of Civil Procedure.”

Rule 41(b), Ala. R. Civ. P., provides:

“For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, [Ala. R. Civ. P.,] operates as an adjudication upon the merits.'”

(Emphasis added.)

The circuit court’s October 13, 2004, order did not state that it was dismissing the instant action without prejudice, and the reason for its dismissal was not “for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19,” Ala. R. Civ. P. Therefore, by its terms and by the terms of Rule 41(b), the circuit court’s October 13, 2004, order clearly constituted a dismissal of the instant action with prejudice. The very purpose of Rule 41(b) is to remove doubt about a court’s intention when it dismisses an action. See Weissinger v. United States, 423 F.2d 795, 798 (5th Cir.1970) (explaining that Rule 41(b), Fed. R. Civ. P., “seeks to avoid ‘any need for speculation as to the intent of the court and the effect of its dismissal order where the order fails to indicate whether or not it is with prejudice.’ ” (quoting 5 Moore, Federal Practice, ¶ 41.14(1), at 1176 (2d ed.1969))).

Presumably, Campbell filed his “motion for clarification” pursuant to Rule 60(b)(6) because he perceived it to be his only avenue for possible relief from the judgment. At the time Campbell filed that motion, the periods for filing a motion under Rule 59(e), Ala. R. Civ. P. (to alter, amend, or vacate a judgment) or a motion under Rule 60(b)(1), Ala. R. Civ. P. (asking the court to relieve a party from a judgment for “mistake, inadvertence, surprise, or excusable neglect”), had long since expired. “Therefore, our inquiry should be whether the motion can properly be considered a Rule 60(b)(6) motion for ‘any other reason justifying relief from the operation of the judgment.’ ” Textron, Inc. v. Whitfield, 380 So.2d 259, 260 (Ala.1979).

“ ‘ “Relief under Rule 60(b)(6) is reserved for extraordinary circumstances, and is available only in cases of extreme hardship or injustice.” ’ ” R.E. Grills, Inc. v. Davison, 641 So.2d 225, 229 (Ala.1994) (quoting Chambers County Comm’rs v. Walker, 459 So.2d 861, 866 (Ala.1984), quoting in turn Douglass v. Capital City Church of the Nazarene, 443 So.2d 917, 920 (Ala.1983)). As the “catchall” provision of Rule 60(b), “[c]lause (6) ... is mutually exclusive of the specific grounds of clauses (1) through (5), and a party may not obtain relief under clause (6) if it would have been available under clauses (1) through (5).” Davison, 641 So.2d at 229. Further, “despite the general discretion vested in trial courts to grant or deny relief from a judgment, a Rule 60(b) motion ‘is not a substitute for appeal and is not available to relieve a party from his failure to exercise the right of appeal.’ ” Wal-Mart Stores, Inc. v. Pitts, 900 So.2d 1240, 1245 (Ala.Civ.App.2004) (quoting Morgan v. Estate of Morgan, 688 So.2d 862, 864 (Ala.Civ.App.1997)).

“Although grounds for relief under Rule 60(b)(1) generally cannot be valid grounds under Rule 60(b)(6), this Court has recognized an exception when, in the interest of justice, aggravating circumstances may be considered sufficient to allow the trial court to treat what would otherwise be a Rule 60(b)(1) motion as within Rule 60(b)(6).”

Davison, 641 So.2d at 229 (also noting that in Giles v. Giles, 404 So.2d 649, 651 (Ala.1981), this Court stated that “ ‘ “[a] quite typical kind of case [for this exception] is that in which a party comes in more than ... [four months] after judgment to assert that he is the victim of some blunder by his counsel” ’ ”).

The circumstances surrounding Campbell’s motion for clarification do not fall within the aggravating-circumstances exception. Instead, the record in the instant action indicates a lack of diligence on Campbell’s part to protect his interests. As noted, a failure to prosecute the instant action was one of the two reasons for the dismissal of this action in the first place. At the time the circuit court entered its December 29, 2006, order in this case, the parallel federal action had been pending for over 28 months. Campbell did not file a Rule 60(b)(6) motion in the circuit court until approximately two years after the October 13, 2004, judgment of dismissal, and even then only at the urging of the federal district court.

For all that appears from the record, throughout the two-year period between the October 13, 2004, judgment of dismissal and the proceedings in the circuit court initiated in September 2006 at the behest of the federal district court, neither party to this action was aware of the statement placed on the case-action-summary sheet by the circuit clerk on October 26, 2004. Although Campbell mentioned the October 26, 2004, statement on the case-action-summary sheet in his motion for clarification and attached it as an exhibit to the motion, he did not assert that he was aware of that statement at any time before September 2006 or that that statement was the reason he had “believed the [October 13, 2004,] order was a dismissal without prejudice.” As Campbell explained in a separate filing, he “always had taken the position ... that [the circuit court’s] Order was a dismissal without prejudice.” Further, in contrast to the indication in the record that copies of the circuit court’s October 13, 2004, judgment were mailed to counsel for each of the parties, there is no such indication in the record with respect to the October 26, 2004, statement on the case-action-summary sheet. In other words, for all that appears, Campbell had no reason to interpret the circuit court’s October 13, 2004, judgment in any way other than the interpretation required by the plain language of that judgment and the provisions of Rule 41(b), yet Campbell sought no relief from the terms of that judgment for approximately two years.

We cannot conclude that the circumstances of this case constitute the kind of extraordinary circumstances and extreme hardship and injustice that warrant relief under Rule 60(b)(6). We therefore conclude that the circuit court erred in granting Campbell’s Rule 60(b)(6) motion so as to change the disposition of the dismissal in the instant action from a dismissal with prejudice to a dismissal without prejudice.

III. Conclusion

For the foregoing reasons, the circuit court’s order of December 29, 2006, is reversed. As a result of this reversal, the trial court’s order of October 13, 2004, remains in effect as the final judgment in the instant action.

REVERSED.

COBB, C.J., and LYONS, STUART, and BOLIN, JJ., concur.

      . Although it is unclear from the record, we assume that Fannie Mae had received an assignment of rights from WMB under the mortgage.

      . Section 6-5-440, Ala.Code 1975, provides:
      "No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times.”
      This Court has held that the phrase "the courts of this state” in § 6-5-440 includes federal district courts located in Alabama. See, e.g., Ex parte Myer, 595 So.2d 890, 892 (Ala.1992); Terrell v. City of Bessemer, 406 So.2d 337, 339 (Ala.1981). As has been noted, § 6-5-440
      "does not operate on the jurisdiction of the trial court. The statute does not provide that the trial court ‘is deprived of jurisdiction over the second-filed action, or that the second-filed action ‘is void.' Instead, § 6-5-440 provides that when two actions are commenced at different times, the pen-dency of the first-filed action 'is a good defense’ to the second-filed action. Thus, a defendant must raise the first-filed action as a defense in a motion to dismiss.”

        First Tennessee Bank, N.A. v. Snell, 718 So.2d 20, 27 (Ala.1998) (See, J., concurring in the result). The materials before us do not reflect whether WMB sought to dismiss the instant action pursuant to § 6-5-440, nor does WMB make any argument on appeal concerning the applicability of that section. Thus, we do not address the extent to which § 6-5-440 might have applied in the present case.

      3.It is not apparent from the record what order of the circuit court Campbell failed to comply with, and the record does not include a transcript of the hearing at which WMB made its oral motion to dismiss.

      . Rule 58(c) as it read before an amendment effective September 19, 2006, is applicable to the instant action; Rule 58(c) then provided, in part, as follows:
      "Notation of a judgment or order on separately maintained bench notes or in the civil docket or the filing of a separate judgment or order constitutes the entry of the judgment or order.”
      Effective September 19, 2006, Rule 58(c) was amended to provide that an order or judgment shall be deemed "entered” "as of the actual date of the input of the order or judgment into the State Judicial Information System."

      . The case-action-summary sheet also shows a subsequent entry on the same date (October 26, 2004) with similar wording: "DISPOSED BY (DISM W/O PREJ) ON 10/13/2006.”

      . Even the circuit court’s December 29, 2006, order does not mention the October 26, 2004, entry on the case-action-summary sheet.

      . See note 4, supra.

      . We have previously noted that “[bjecause the Federal Rules of Civil Procedure were used as a model for Alabama’s procedural rules, these 'federal decisions are highly persuasive when we are called upon to construe the Alabama Rules.’ ” Ex parte Full Circle Distribution, L.L.C., 883 So.2d 638, 643 (Ala.2003) (quoting City of Birmingham v. City of Fairfield, 396 So.2d 692, 696 (Ala.1981)).

      . Campbell, who has not favored this Court with a brief, also did not argue to the circuit court that his motion should be treated as a motion under Rule 60(a), Ala. R. Civ. P., which provides that ”[c]lerical mistakes in judgments [and] orders ... arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party .... ” We recognize that this Court can affirm a trial court’s judgment on “any valid legal ground,” regardless of whether that ground was considered, or even if it was rejected, by the trial court, except where due process constrains us from doing so. See Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs., 881 So.2d 1013, 1020 (Ala.2003). Even if treating Campbell's motion as a Rule 60(a) motion would provide a valid legal ground for affirming the circuit court's judgment, to affirm the judgment on this ground under the circumstances of this case arguably would raise due-process concerns for WMB. Such concerns aside, we decline as a discretionary matter in this case to take up the issue without the benefit of briefing by both parties.


author: BRYAN, Judge.

text:
    GREATER WASHINGTON PARK NEIGHBORHOOD ASSOCIATION v. BOARD OF ADJUSTMENT OF the CITY OF MONTGOMERY and Friendship Mission Church.
    2080336.
    Court of Civil Appeals of Alabama.
    May 15, 2009.

      Tiffany B. McCord, Montgomery, for appellant.
    Wallace D. Mills, Montgomery, for ap-pellee Board of Adjustment of the City of Montgomery.
    J. Doyle Fuller, Montgomery, for appel-lee Friendship Mission Church.
   BRYAN, Judge.

In 2003, Friendship Mission Church (“the Church”) petitioned the Board of Adjustment of the City of Montgomery (“the Board”) for a special exception to the zoning ordinance of the City of Montgomery (“the City”). The Church’s application requested a special exception to build a “church/homeless shelter” on property (“the property”) belonging to the Church in an M-l (industrial) zoning district. At a meeting on January 16, 2003, the Board granted the special exception. The minutes of that meeting simply indicate that the Church requested a “special exception church/shelter” and that the Board granted that request. Thereafter, the Church constructed a building for use as a church and homeless shelter on the property. The record on appeal suggests that the Church had planned to build a 15,000-square-foot building on the property. However, the Church actually constructed a 5,137-square-foot building on the property.

In 2008, the Church petitioned the Board for approval of a “Revised Master Plan for [an] additional building” on the property, and the Board approved the Church’s request. The Church intended to build the additional building for use as a shelter on the property, a use for which the Church was granted a special exception in 2003. A “development plan application” indicated that the Church plans to construct an additional 7,863-square-foot building on the property.

The Greater Washington Park Neighborhood Association (“the Association”), a group of homeowners living near the property, appealed the Board’s 2008 decision to the Montgomery Circuit Court, pursuant to § 11-52-81, Ala.Code 1975. The Church subsequently intervened in the appeal. The Church filed a motion to dismiss the appeal, asserting various grounds. The trial court held a hearing on the Church’s motion, at which counsel for the parties presented oral arguments. Following the hearing, the trial court entered a judgment in favor of the Board and the Church. The judgment stated, in pertinent part:

“The decision by the Board to allow an exception to build the shelter was passed in 2003. Only a part of the shelter originally approved was erected at that time. Now the Church seeks to finish the shelter in accordance with the original exception. The City told the Church it must return to the Board for permission to finish the shelter.
“The Court disagrees. Having already approved the project once, the Board has no need to approve it again. The Court is unaware of, and has not been provided, any law that suggests that the Board’s decision in 2003 expires after the passage of time or must be renewed periodically. Accordingly, the Church need only obtain a building permit to commence construction.
“... In this instance, the Court believes that the decision of the Board was redundant because the decision to allow the shelter in 2003 was not appealed, and[, therefore, that decision] became legal. Further, even if the recent decision were renewable, the Court does not find it to be arbitrary.”

The Association timely appealed to this court.

On appeal, the Association argues that the trial court erred in concluding that the Board’s 2008 decision was superfluous and by not fully addressing the merits of that decision. The Association notes that the issue the Church presented to the Board in 2008 was distinct from the issue the Church presented to the Board in 2003. In 2003, the Board granted a “special exception for a church/homeless shelter” on the property. In 2008, the Board approved a “Revised Master Plan for [an] additional building” on the property. Therefore, the Association contends, because the issues before the Board in 2003 and 2008 were distinct, the trial court erred in concluding that “[the Board, having already approved the project once [in 2003, had] no need to approve it again [in 2008].” Certainly, there are distinctions between the issues presented to the Board in 2003 and the issues presented to the Board in 2008. However, the Association does not address whether, in light of the Board’s scope of authority, there is a need for the Board to approve the plans for an additional building on the property or whether the Board even had the authority to address those plans at all. The Association seems to assume that the issue presented by the Church to the Board in 2008 was properly before the Board; of course, the trial court concluded otherwise. A discussion of the powers of the Board illustrates that the Association seems to misunderstand the Board’s function.

“[T]he board of zoning adjustment sits as an administrative body performing a quasi-judicial function. [Nelson v. Donaldson, 255 Ala. 76, 50 So.2d 244 (1951) ]. Accord, Ball v. Jones, 272 Ala. 305, 132 So.2d 120 (1961). And, since the board of adjustment derives its powers directly from the state legislature, such powers cannot be circumscribed, altered, or extended by the municipal governing body. Nelson v. Donaldson, 255 Ala. 76, 50 So.2d 244 (1951). Accord, Water Works Board v. Stephens, 262 Ala. 203, 78 So.2d 267 (195[5]).”

Swann v. Board of Zoning Adjustment of Jefferson County, 459 So.2d 896, 899 (Ala.Civ.App.1984).

The Board is limited to the authority established in § 11 — 52—80(d), Ala.Code 1975:

“(d) The board of adjustment shall have the following powers:
“(1) To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this article or of any ordinance adopted pursuant thereto;
“(2) To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance; and
“(3) To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done.”

(Emphasis added.)

Regarding special exceptions, our supreme court has stated:

“A special exception is a conditionally permitted use, that is, it is an enumerated use specified in the zoning ordinances that requires the approval of an administrative board or agency. A special exception ‘allows a property owner to put his property to a use which the regulations expressly permit under conditions specified in the zoning regulations themselves.’ 101A C.J.S. Zoning & Land Planning § 229, p. 656 (1979). This contrasts with a ‘variance,’ which requires a showing of unnecessary hardship and results from a request that the zoning authorities grant relief from the literal requirements of the zoning ordinances. Ex parte Chapman, 485 So.2d 1161 (Ala.1986).”

Ex parte Fairhope Bd. of Adjustment & Appeals, 567 So.2d 1353, 1355 (Ala.1990).

The language found in § ll-52-80(d)(2) concerning special exceptions is the same as the language contained in Section 7 of the Standard State Zoning Enabling Act. Julian Conrad Juergensmeyer & Thomas E. Roberts, Land Use Planning and Development Regulation Law 200-01 (2003). “Under the Standard Act, before the board [of adjustment] can exercise [its] power, the [municipal] legislative body must list the uses to be treated as special. The board may issue a permit for only those uses listed and only if the conditions set forth in the ordinance are met.” Id. at 201 (footnote omitted).

“The special [exception] process is designed to deal with uses that by their nature are difficult to fit within any use zone where they can operate by right. These uses may be especially sensitive and need special protection or they may pose unusual harm to neighboring land. An administrative process [before the board of adjustment] deals with these uses on a case by case basis to take these concerns into account. The term ‘special’ relates to the type of use rather than the uniqueness of the property as with a variance.”

Id. at 200 (footnote omitted).

“It is said that a board of adjustment has the power, even without express authorization, to attach conditions, as long as they are not unreasonable, arbitrary or oppressive, to a grant of a special exception. See, e.g., 3 R. Anderson, American Law of Zoning 2d § 19.29 (1977); 101A C.J.S. § 288; Annot., 168 A.L.R. 18, 60 (1947). However, we have found no authorities which would allow a board of adjustment the discretion, without express authorization, to ignore the terms of the zoning regulations under which it operates. Indeed, the authorities are to the contrary. See generally 101A C.J.S. § 229; 82 Am.Jur.2d § 255.”

Lindquist v. Board of Adjustment of Jefferson County, 490 So.2d 16, 18 (Ala.Civ.App.1986).

In this case, in 2003, the Board, acting pursuant to § 11 — 52—80(d)(2), granted the Church a special exception to use the property for the purpose of a “church/shelter.” That is, the Board concluded that a special exception was due to be granted for that particular use of the property, consistent with the special-exception provisions of the City’s zoning ordinance. In 2008, the Church, apparently at the instruction of an official of the City, sought the Board’s approval of plans for an additional building to be used as a shelter on the property. That is, the Church sought the Board’s approval in 2008 for the same use that the Board had previously approved in 2003. Significantly, the record does not contain the provisions in the City’s ordinance concerning the requirements for the Board’s granting of exceptions in particular zoning districts. Therefore, it is unknown whether the ordinance contains a provision that might require the Church to obtain a “second” special exception given the facts of this case. The record does not indicate that the Board placed conditions on the 2003 special exception that were implicated in the 2008 proceedings before the Board. Therefore, for all that appears in the record, insofar as the Church may have sought a “second” special exception in 2008, it appears that such action was unnecessary, as the trial court concluded. “The burden is on the appellant to present a record containing sufficient evidence to warrant a reversal.” Seidler v. Phillips, 496 So.2d 714, 716 (Ala.1986). “This court cannot assume error, nor can it presume the existence of facts as to which the record is silent.” Newman v. State, 623 So.2d 1171, 1172 (Ala.Civ.App.1993).

Further, there is no indication that the Board had the authority to initially approve or disapprove the plans for an additional building on the property after having already granted the special exception. It is unclear under what authority the Board purported to approve the proposed building plans in this case. The Board, pursuant to § ll-52-80(d)(2), had previously granted a special exception to the Church to use the property for the purpose of a shelter. The Association does not argue that the Church was required to obtain a variance from the Board, pursuant to § 11 — 52—80(d)(3). Although the Association at times refers to the Church’s 2008 petition to the Board as an “appeal,” apparently in reference to the Board’s authority to hear appeals from the decisions of “an administrative official” under § 11-52-80(d)(l), the record does not indicate that this case involves an appeal to the Board under that provision. Instead, the record suggests that an official of the City unnecessarily instructed the Church to obtain the Board’s approval of the plans for the new building. The Association has not established that such approval from the Board, which has limited statutory powers, see § ll~52-80(d) and Swann, supra, was necessary. The City’s zoning ordinance provides that, in order for a new building to be constructed, the City’s “administrative official” must issue a building permit “including a statement that the plans, specifications and intended use of such structure, in all respects, conform with the provisions of this ordinance.” Therefore, it is the administrative official, not the Board, who initially considers the plans for new construction.

Accordingly, the Association has failed to establish that the trial court erred in concluding that the Church was not required to obtain the Board’s approval of the building plans.

AFFIRMED.

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

      . Section 11-52-81, Ala.Code 1975, provides, in pertinent part:
      “Any party aggrieved by any final judgment or decision of such board of zoning adjustment may within 15 days thereafter appeal therefrom to the circuit court by filing with such board a written notice of appeal specifying the judgment or decision from which the appeal is taken.... [T]he action in such court shall be tried de novo.”

      . The record does contain other portions of the zoning ordinance relating to building permits. Although a complete copy of the City's zoning ordinance is not included in the record, at the conclusion of the hearing before the trial court, counsel for the Church gave the trial judge a copy of the ordinance.