author: PARKER, Justice.

text:
    Julie GERSTENECKER v. Janice GERSTENECKER
    1160144
    Supreme Court of Alabama.
    May 19, 2017
    William T. Fortune, Jr., Birmingham, for appellant.
    Ashley L. Neese of Dominick • Feld • Hyde, P.C., Birmingham, for appellee.
   PARKER, Justice.

Julie Gerstenecker appeals a judgment entered by the Jefferson Circuit Court ("the trial court") in favor of Janice Gerstenecker.

Facts and Procedural History

As of September 2014, Julie, who at that time was married to Adam Gerstenecker, Janice's son, owed approximately $78,000 on two student loans she had borrowed to fund her education. Janice testified that Julie "was upset about" "the amount of interest that she owed on her student loans" and that Janice "decided that [she] would offer [Julie] an interest-free loan to pay off those student loans." Janice testified that she had a discussion with Julie and Adam about the possibility of lending Julie the money to repay her student loans. According to Janice, Janice agreed to repay Julie's student loans and Julie agreed to repay Janice by "pay[ing] [Janice] $700 a month until [Julie and Adam's child] turned one. And then the payments would rise to $1,000." Janice testified that the terms of the agreement between her and Julie were not reduced to writing. Adam also testified at trial; his testimony supports the events as testified to by Janice.

Julie testified that she had never borrowed money from Janice and that she does not recall Janice telling her that Janice would lend her money to repay her student loans.

On September 15, 2014, Julie sent Janice an e-mail informing Janice of Julie's student-loan lenders and the amount of indebtedness she owed each of them. Julie's e-mail indicated that Julie owed Department of Education FedLoan Servicing ("FedLoan Servicing") $72,124.04 and that she owed Sallie Mae $6,319.98. On September 16, 2014, Janice mailed checks in the amount of Julie's indebtedness to FedLoan Servicing and Sallie Mae.

Janice testified that, after she repaid Julie's student loans, she received four payments from Julie on the interest-free loan Janice alleges she made to Julie. Janice testified that, on October 6, 2014, Adam gave her a check in the amount of $700 "for loan repayment." Janice testified that, on October 31, 2014, Julie gave her a check in the amount of $530. Janice explained that the amount of the October 31, 2014, check was $530, instead of $700, because Julie and Adam had bought Janice and her husband a sound bar for their television. The cost of the sound bar was deducted from the $700, leaving $530. Julie testified that she had no recollection or explanation as to why she wrote the October 31, 2014, check to Janice. Janice testified that, on November 22, 2014, she received a check in the amount of $700 "for Julie's repayment of the loan." Janice testified that Julie gave her a check on December 29, 2014, in the amount of $227. Janice explained that the amount of the December 29, 2014, check was $227, instead of $700, because Janice reimbursed Julie for items Julie had purchased on Janice's behalf in the amount of $473. Julie testified that she had no recollection or explanation as to why she wrote the December 29, 2014, check to Janice. Adam testified that each of the checks were given to Janice for repayment of the loan Janice made to Julie. Janice testified that, since receiving the December 29, 2014, check, she has not received any further payments on the loan from Julie.

On January 7, 2015, Julie sent Adam an e-mail discussing the terms of their pending divorce. In their e-mail exchange, Adam indicated that the monthly repayment amount under the agreement between Janice and Julie would be decreased from $700 to $500.

On December 3, 2015, Janice sued Julie alleging that Julie had breached their agreement and requesting $78,444 in damages, an amount that Janice alleged was equal to the amount of the outstanding debt Julie allegedly owed Janice. On December 17, 2015, Julie filed an answer; Julie did not assert any affirmative defenses. On September 5, 2016, at 11:27 p.m., Julie filed an amended answer asserting the Statute of Frauds as an affirmative defense. On the next day, September 6, 2016, the trial court conducted a bench trial.

On September 13, 2016, the trial court entered an order in favor of Janice. The trial court essentially held that Julie had waived the Statute of Frauds affirmative defense by failing to plead it in her initial response. The trial court also held that, even if Julie had not waived the Statute of Frauds affirmative defense, the Statute of Frauds was not applicable "because the evidence submitted at trial showed that, without dispute, the contract made the subject of this lawsuit was no longer executory because [Janice] had fully performed her part of the bargain." The trial court further held that Janice had "proven her case," and it entered a judgment against Julie "in the amount of $75,644.00 (the outstanding balance testified to without dispute)."

Standard of Review

"Because the trial court heard ore tenus evidence during the bench trial, the ore tenus standard of review applies. Our ore tenus standard of review is well settled. ' "When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error." ' Smith v. Muchia, 854 So.2d 85, 92 (Ala. 2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala. 1996) ).
" ' "The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses."
Hall v. Mazzone, 486 So.2d 408, 410 (Ala. 1986). The rule applies to "disputed issues of fact," whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala. 1995). The ore tenus standard of review, succinctly stated, is as follows:
" ' "[W]here the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court's conclusion on issues of fact, and this Court will not disturb the trial court's conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence." '
" Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala. 2000) (quoting Raidt v. Crane, 342 So.2d 358, 360 (Ala. 1977) ). However, 'that presumption [of correctness] has no application when the trial court is shown to have improperly applied the law to the facts.' Ex parte Board of Zoning Adjustment of Mobile, 636 So.2d 415, 417 (Ala. 1994)."

Kennedy v. Boles Invs., Inc., 53 So.3d 60, 67-68 (Ala. 2010).

Discussion

First, Julie argues that the trial court exceeded its discretion in holding that she waived the affirmative defense of the Statute of Frauds. Julie does not dispute that she failed to raise the Statute of Frauds as an affirmative defense until the eve of trial, literally at the 11th hour. Julie argues, however, that the issue of the Statute of Frauds was tried by the implied consent of the parties and that her answer was, thus, effectively amended under Rule 15(b), Ala. R. Civ. P., to assert that affirmative defense.

In Adams v. Tractor & Equipment Co., 180 So.3d 860, 867 (Ala. 2015), this Court set forth the following concerning the waiver of the affirmative defense of the Statute of Frauds:

"The Statute of Frauds is included in the list of affirmative defenses in Rule 8(c), Ala. R. Civ. P., and that rule requires that such a defense be specially pleaded. See Wallace v. Alabama Ass'n of Classified Sch. Emps., 463 So.2d 135, 136 (Ala. 1984). However, although it is generally true that a party's failure to assert an affirmative defense in its answer works as a waiver of that defense, that rule is subject to certain exceptions."

In Tounzen v. Southern United Fire Insurance Co., 701 So.2d 1148, 1150 (Ala. Civ. App. 1997), the Appeals stated that " Rule 15(b) [, Ala. R. Civ. P.,] is an exception to the rule that an affirmative defense is waived if it is not specifically pleaded. Mid-South Credit Collection v. McCleskey, 587 So.2d 1212 (Ala. Civ. App. 1991)." Rule 15(b) provides, in pertinent part:

"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues."

This Court set forth the following concerning a trial court's discretion in determining whether a party's pleadings have been amended pursuant to Rule 15(b) :

" 'We also note that a determination "as to whether [an] issue has been tried by express or implied consent under Rule 15(b) is a matter for the trial court's sound discretion, which will not be altered on appeal absent an abuse [of that discretion]." ' International Rehab. Assocs., Inc. v. Adams, 613 So.2d 1207, 1214 (Ala. 1992) (quoting McCollum v. Reeves, 521 So.2d 13, 16 (Ala. 1987) ). ' "[W]hether pleadings are deemed to be amended in order to conform to the evidence presented is also a matter within the discretion of the trial court," and a decision in that regard will not be disturbed on appeal absent an abuse of discretion.' Adams, 613 So.2d at 1214 (quoting McCollum, 521 So.2d at 16-17 )."

Ammons v. Tesker Mfg. Corp., 853 So.2d 210, 216-17 (Ala. 2002).

Julie argues that the following evidence presented by Janice demonstrate that the issue of the Statute of Frauds was tried by implied consent:

"[Janice] presented evidence at the trial of this matter to the effect that there was an oral agreement for [Janice] to pay off Julie's student loan debt of some $80,000.00 and for Julie to pay her back at the rate of $700.00 per month for a year, then to raise the payments to $1,000.00 per month until paid in full. Clearly the contract could not be performed within a year. [Janice] further acknowledged there was no writing supporting the agreement other than Julie's email to her, Julie's email to Adam, and the 4 checks. Thus, facts invoking the Statute of Frauds were admitted, not only without objection, but in fact, by [Janice] in her case in chief."

Julie's brief, at p. 19. However, Julie has not cited any authority indicating what facts are significant to the affirmative defense of the Statute of Frauds. Neither has Julie provided any analysis explaining why the above-summarized facts presented by Janice pertain solely to the issue of Julie's affirmative defense of the Statute of Frauds. Accordingly, we need not consider this argument.

"Rule 28(a)(10)[, Ala. R. App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived. Moore v. Prudential Residential Servs. Ltd. P'ship, 849 So.2d 914, 923 (Ala. 2002) ; Arrington v. Mathis, 929 So.2d 468, 470 n. 2 (Ala. Civ. App. 2005) ; Hamm v. State, 913 So.2d 460, 486 (Ala. Crim. App. 2002). 'This is so, because " 'it is not the function of this Court to do a party's legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.' " ' Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala. 2007) (quoting Butler v. Town of Argo, 871 So.2d 1, 20 (Ala. 2003), quoting in turn Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala. 1994) )...."

White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008).

Moreover, even if we were to consider Julie's argument that her answer was amended pursuant to Rule 15(b), Julie has not demonstrated that the trial court exceeded its discretion in determining that Julie's answer was not so amended. Janice argues that the facts relied upon by Julie in arguing that the issue of the Statute of Frauds was tried by the implied consent of the parties were actually presented by Janice to prove the elements of her breach-of-contract claim. See Capmark Bank v. RGR, LLC, 81 So.3d 1258, 1267 (Ala. 2011) ("In order to recover on a breach-of-contract claim, a party must establish: (1) the existence of a valid contract binding the parties; (2) the plaintiff's performance under the contract; (3) the defendant's nonperformance; and (4) damages.").

"When a party contends that an issue was tried by express or implied consent and the evidence on that issue is also relevant to the issue expressly litigated, there is nothing to indicate that a new issue was raised at trial, and the pleadings are not deemed amended under Rule 15(b)."

McCollum v. Reeves, 521 So.2d 13, 17 (Ala. 1987) (citing Wright & Miller, Federal Practice and Procedure, Civil, § 1493 (1971) ). We agree with Janice; Julie has not demonstrated that the trial court exceeded its discretion in concluding that Julie's answer was not amended by implied consent pursuant to Rule 15(b).

Julie also argues that the trial court erred in concluding that the affirmative defense of the Statute of Frauds was not applicable. However, our conclusion that the trial court did not exceed its discretion in concluding that Julie waived the affirmative defense of the Statute of Frauds pretermits consideration of that argument.

Next, Julie argues that the trial court "committed legal error in concluding there was a contract between the parties for [Julie] to repay [Janice] for paying off her student loans." Julie's brief, at p. 21. Julie argues that Janice failed to present evidence sufficient to prove mutual assent between the parties and, thus, failed to prove the existence of a contract between her and Janice. Specifically, Julie argues that "[t]here is no tangible evidence supporting the assertion that Julie intended to agree to pay [Janice] back." Id., at p. 22.

The only authority relied upon by Julie is a plurality decision by the Appeals, Mobile Attic, Inc. v. Kiddin' Around of Alabama, Inc., 72 So.3d 37 (Ala. Civ. App. 2011). Although this plurality decision has little, if any, persuasive value, the Appeals did summarize this Court's well established precedent indicating that acceptance of an offer may be demonstrated by a means other than signing a written contract:

"[I]n Denson [v. Kirkpatrick Drilling Co., 225 Ala. 473, 144 So. 86 (1932),] ... our supreme court began by explaining the general rule that, unless a contract is required by law to be in writing and signed by the parties, an offeree need not sign the contract to evince his or her mutual assent to it. Denson, 225 Ala. at 479, 144 So. at 91. The court then cautioned that ' "such an acceptance, however, to become effective as a binding contract must be positive and unambiguous." ' Id. (quoting Stephenson Brick Co. v. Bessemer Eng'g & Constr. Co., 218 Ala. 325, 326, 118 So. 570, 571 (1928), and citing 1 Williston on Contracts, pp. 127, 168, §§ 72, 90). In the context of that discussion, the court noted that '[t]his statement of the general rule precludes acceptance by mere silence and inaction, as "generally speaking an offeree has a right to make no reply to offers, and his silence and inaction cannot be construed as an assent to the offer." ' Id. (quoting 1 Williston on Contracts, p. 168, § 91).
"However, even if 'mere silence' cannot be considered an assent to an offer, this case does not involve 'mere silence.' ' "It is well settled that whether parties have entered a contract is determined by reference to the reasonable meaning of the parties' external and objective actions." ' Cook's Pest Control, Inc. v. Rebar, 852 So.2d 730, 738 (Ala. 2002) (quoting SGB Constr. Servs., Inc. v. Ray Sumlin Constr. Co., 644 So.2d 892, 895 (Ala. 1994) ). Neither the uncommunicated beliefs of a party nor any misunderstandings regarding the import of particular terms prevent an objective manifestation of intent from being effective. Lilley [v. Gonzales ], 417 So.2d [161,] 163 [ (Ala. 1982) ] ; Mayo v. Andress, 373 So.2d 620, 624 (Ala. 1979) ; and Johnson v. Boggan, 325 So.2d 178, 182, 56 Ala.App. 668, 672 (Ala. Civ. App. 1975)."

72 So.3d at 44-45.

Julie argues that Janice has not presented evidence indicating that Julie positively and unambiguously accepted Janice's offer. Julie acknowledges the evidence demonstrating that she e-mailed Janice the information necessary to repay Julie's student loans and the evidence of the two checks Julie personally signed and presented to Janice. However, without citing any supporting authority, Julie simply states that "this evidence is not positive and unambiguous." Julie's brief, at p. 24.

Janice argues that she did present evidence sufficient to prove that an agreement existed between her and Julie. Janice presented evidence indicating that she and Julie met and discussed Janice's offer to loan Julie money to repay Julie's student loans. Janice also testified that she agreed to repay Julie's student loans and that Julie agreed to "pay [Janice] $700 a month until [Julie and Adam's child] turned one. And then the payments would rise to $1,000." Adam testified to the same facts. Janice presented the e-mail Julie had sent her in which Julie references a meeting she had had with Janice and, in accordance with the terms of the agreement Janice testified to, includes the details of Julie's student loans Janice had agreed to repay. Julie also included in her e-mail to Janice specific instructions on how to repay those loans. Further, Janice presented evidence indicating that Julie and Adam made four payments in accordance with the terms of the agreement.

Janice has presented evidence indicating that an agreement existed between her and Julie and evidence detailing the specific terms of the agreement. Julie provided Janice with the information necessary for Janice to perform her obligation under the agreement. After Janice satisfied her obligation under the agreement by repaying Julie's student loans, Julie then began performance of her obligation under the agreement to repay Janice. In Deeco, Inc. v. 3-M Co., 435 So.2d 1260, 1262 (Ala. 1983), this Court stated: "Conduct of one party from which the other may reasonably draw the inference of assent to an agreement is effective as acceptance. Mayo v. Andress, 373 So.2d 620, 624 (Ala. 1979)." Julie has not directed this Court's attention to any authority indicating that the trial court's conclusion that Julie's conduct indicated a positive and unambiguous acceptance of the agreement is plainly and palpably wrong.

Next, Julie argues that, even if an agreement does exist between Janice and Julie, the trial court "committed legal error in entering a judgment in the full amount provided by [Janice] where there was no testimony of an acceleration clause being part of the alleged agreement." Julie's brief, at p. 26. Julie argues that Janice presented no evidence indicating that the oral agreement between the parties included an acceleration clause and, thus, that the trial court erred in awarding Janice the entire amount of the outstanding loan, rather than only the payments Julie had missed at the time the judgment was entered against her.

In making her argument, Julie relies on Rosenfeld v. City Paper Co., 527 So.2d 704 (Ala. 1988), and Meigs v. Estate of Mobley, 134 So.3d 878 (Ala. Civ. App. 2013). In Meigs, it was undisputed that an oral contract existed between a lender and a borrower in which the lender agreed to loan the borrower $50,000 and the borrower agreed to make monthly payments in a specified amount until the principal amount, plus interest, was paid in full. 134 So.3d at 879-80. There was no evidence offered indicating that the oral contract contained an acceleration clause. The borrower made payments pursuant to the terms of the oral contract for some time, but eventually stopped making payments, thereby breaching the oral contract. The lender sued, asserting breach of contract and requesting damages. It was undisputed that, at the time the lender sued the borrower, the past-due amount was less than the total amount of the outstanding debt. The trial court, however, awarded the lender the entire amount of the outstanding debt, rather than only the past-due amount. 134 So.3d at 885.

On appeal, the borrower argued, among other things, "that the oral contract did not contain an acceleration clause and that, in the absence of an acceleration clause, the trial court should have limited the judgment to the monthly payments that had accrued at the time the judgment was entered." 134 So.3d at 888. In so arguing, the borrower relied on Rosenfeld. The Appeals summarized the applicable portion of Rosenfeld:

"In Rosenfeld [v. City Paper Co., 527 So.2d 704 (Ala. 1988) ], the parties entered into a written agreement for the payment of money that did not contain an acceleration clause. In Rosenfeld, the pertinent language of the promissory note at issue read:
" ' "In the event that the relationship between [Rosenfeld/payor] and [City Paper Company/payee] terminates, regardless of the reason for such termination, the outstanding balance then due on the obligation expressed herein shall be due and payable, without interest, in five (5) equal annual installments, beginning one year from the date of the termination of the relationship of the parties." '
" 527 So.2d at 704-05.
"Apparently, Rosenfeld breached the agreement. Among other issues, the trial court entered a summary judgment in favor [of] City Paper Company based on the full amount of the note, even though only two of the five installments had become due at the time of the entry of the judgment. Our supreme court reversed the judgment as to this issue and remanded the case with instructions to the trial court to enter the judgment based on the sum of two accrued annual installments. 527 So.2d at 704. In so doing, our supreme court rejected the application of 'anticipatory breach' to unilateral contracts for the payment of money only. Id. at 705.
"In analyzing the issue, our supreme court reasoned, in part:
" 'City Paper Company agrees that the note contains no acceleration clause, and that the case law, generally speaking, supports Rosenfeld's contention that "acceleration of the maturity of unaccrued payments" is not to be read into payment contracts by implication. For a collection of the cases so holding, see 10 C.J.S., Bills & Notes § 529 at 1160 (1938)....
" '....
" '... "Anticipatory breach" has a field of operation where the nondefaulting parties remain liable for certain obligations under a bilateral contract. To require the nondefaulting party to continue the discharge of his contractual duties, in face of a clear, unequivocal repudiation of the contract by the defaulting party, is a senseless requirement that unduly penalizes the nondefaulting party.
" 'The majority of jurisdictions faced with this issue have drawn the distinction and have not allowed the "anticipatory breach" doctrine to apply to unilateral contracts, particularly for the payment of money only. The "settled" rule was succinctly expressed by Justice Cardozo in Smyth v. United States, 302 U.S. 329 at 356, 58 S.Ct. 248 at 253, 82 L.Ed. 294 (1937) :
" ' "[T]he doctrine of anticipatory breach has in general no application to unilateral contracts, and particularly to such contracts for the payment of money only."
" 'Some of the cases cited above reference Professor Williston's treatise for the rationale that rejects the application of the "anticipatory breach" doctrine to installment contracts that contain no acceleration clause: "[A]llowing the promissee immediate recovery is nothing but a direct bonus to the promissee beyond what he was promised and a direct penalty to the promissor." See, for example, Mabery v. Western Casualty & Surety Co., 173 Kan. 586, 250 P.2d 824, 828-29 (1952), citing 5 Williston on Contracts § 1328 (rev. ed. 1937).
" 'Indeed, the use of the "acceleration of maturity of payment" clause is in recognition of the nonapplicability of the anticipatory breach doctrine in installment payment contracts. Once the promissee has done all there is for him to do under the contract and the promissor's obligation is confined to payment by installments as specified by the contract, the doctrine of anticipatory breach has no field of operation and will not intercede to rescue the promissee from the consequences of the absence of an acceleration clause.
" 'While City Paper Company's "judicial economy" argument has its appeal, the right of the parties to the protection of the rule of law cannot be sacrificed on the altar of judicial efficiency.'
" Rosenfeld, 527 So.2d at 705-06 (footnote omitted)."

Meigs, 134 So.3d at 888-89. The Appeals then applied the principles from Rosenfeld to the facts before it in Meigs:

"We recognize that Rosenfeld involved a written unilateral agreement for the payment of money, and the case before us involves an oral unilateral agreement for the payment of money. However, we have found no Alabama cases involving the issue whether acceleration of payments can be read into an oral unilateral agreement for the payment of money. Logically, and in fairness, the requirement that a borrower must specifically agree to the acceleration of payments in such a written agreement should apply to a borrower under an oral agreement. Therefore, we hold that the trial court erred in reading the acceleration of payments into the oral agreement before us. Accordingly, we reverse the judgment as to this issue. On remand, the trial court should determine the amount owed based on the accrued payments as of the date of the judgment and not the full amount of the outstanding loan balance."

134 So.3d at 889.

Julie's argument based on Rosenfeld and Meigs is convincing. In the present case, as in Meigs, there is no evidence indicating that the oral unilateral agreement for the payment of money between Janice and Julie contained an acceleration clause. Therefore, the trial court erred in reading the acceleration of payments into the oral agreement between Janice and Julie.

Janice argues that the trial court properly awarded her the entirety of the outstanding debt based on principles of equity. Janice argues that "the trial court was forced to determine whether a contract existed, and this task, being declaratory in nature, invoked the court's equity jurisdiction." Janice's brief, at p. 26. However, Janice has not demonstrated that the trial court invoked the principles of equity in determining that an oral agreement existed between her and Julie. Instead, based on the evidence presented by Janice, the trial court determined that Janice proved that a contract existed and that Julie breached that contract. Determining the amount of damages under the contract requires no resort to equitable principles, but to the terms of the agreement. This is a purely legal action. See Simler v. Conner, 372 U.S. 221, 223, 83 S.Ct. 609, 9 L.Ed.2d 691 (1963) (noting that a breach-of-contract claim in which the amount of damages is based on the terms of the contract is "a traditionally 'legal' action. ... The fact that the action is in form a declaratory judgment case should not obscure the essentially legal nature of the action. The questions involved are traditional common-law issues.").

Conclusion

Based on the foregoing, we affirm the trial court's judgment insofar as it assessed liability against Julie for breaching the agreement she had with Janice. However, because the trial court erred in reading an acceleration-of-payments clause into the agreement between Janice and Julie, we reverse the trial court's damages award and remand this case for the trial court to determine the amount owed based on the accrued payments as of the date of the judgment and not the full amount of the outstanding loan balance.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

Shaw, J., concurs in the result.

      Janice also asserted various equitable claims, including unjust enrichment, fraudulent inducement, moneys had and received, and breach of an implied-in-law contract.

      We note that Janice, as an alternative to her breach-of-contract claim, asserted in her complaint that there was an implied contract between her and Julie, which Julie allegedly breached. This Court has stated the following concerning implied contracts:
      "[A] contract implied by law or quasi contract is not a contract at all. 'A quasi contractual obligation is one that is created by the law for reasons of justice, without any expression of assent and sometimes even against a clear expression of dissent. ...' 1 A. Corbin, Corbin on Contracts, § 19, at 46 (1963). The purpose of imposing these contractual obligations is to bring about justice. 1 S. Williston, A Treatise on the Law of Contracts, § 3A (3d ed. 1957). Moreover, these obligations are usually based on unjust enrichment or benefit; the defendant may be required to surrender the benefit he has received or even restore the plaintiff to a former status. Williston, supra, at 15. '... As the law may impose any obligations that justice requires, the only limit in the last analysis to the category of quasi contracts is that the obligation in question more closely resemble those created by contract than those created by tort. ...' Williston, supra, at 13."
      Berry v. Druid City Hosp. Bd., 333 So.2d 796, 798-99 (Ala. 1976). Janice presented evidence and argued that an actual contract existed between her and Julie. As stated above, we are convinced by Janice's argument that an actual contract exists between her and Julie. The trial court had no need to apply principles of equity to determine the existence of a contract between Janice and Julie.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Carolyn J. DAILEY v. MONROE COUNTY BOARD OF EDUCATION
    2150965
    Court of Civil Appeals of Alabama.
    May 12, 2017
    Henry H. Cadell of Thiry & Caddell, LLP, Mobile; and Daniel L. McCleave of McCleave & Shields, Mobile for appellant.
    Alicia F. Bennett of Hill, Hill, Carter, Franco, Cole & Black, P.C., Birmingham, for appellee.
    On Application for Rehearing
   THOMPSON, Presiding Judge.

The opinion of February 17, 2017, is withdrawn, and the following is substituted therefor.

On January 12, 2016, the superintendent of the Monroe County Board of Education ("the Board"), pursuant to the Students First Act ("the SFA"), § 16-24C-1 et seq., Ala. Code 1975, notified Carolyn J. Dailey, a nonprobationary classified employee, of his intention to terminate Dailey's employment with the Board. Dailey timely contested the superintendent's proposed termination of her employment, and she requested a hearing pursuant to the SFA. See § 16-24C-6(b), Ala. Code 1975.

The Board conducted a hearing. On March 23, 2016, at the close of the hearing, the Board orally informed Dailey that it had voted to uphold the superintendent's recommendation to terminate her employment.

On April 22, 2016, Dailey filed a notice of appeal to the State Superintendent of Education, requesting an administrative hearing. See § 16-24C-6(e), Ala. Code 1975. An administrative-hearing officer conducted a hearing on July 26, 2016. It is undisputed that the Board did not include a written decision in the record it submitted to the hearing officer; Dailey disputed that she had received a written decision from the Board terminating her employment. At the close of the administrative hearing, the Board, apparently orally, moved to supplement the administrative record to include a copy of the Board's written decision to terminate Dailey's employment. The Board later filed an undated post-hearing brief that included a motion to supplement the administrative record with a copy of its written decision to terminate Dailey's employment. The Board stated that it had attached its written decision as an exhibit to that filing, but that exhibit is not included in the record before this court. Dailey opposed the Board's motion to supplement the administrative record, and both parties submitted briefs on their respective positions on that issue. The hearing officer never ruled on the motion to supplement.

The hearing officer issued an undated decision affirming the Board's termination decision; in a motion to clarify filed after that decision was issued, Dailey alleged that the hearing officer's decision had been transmitted to her or her attorney on August 4, 2016. In the August 10, 2016, motion to clarify that decision, Dailey requested that the hearing officer clarify his decision to specify whether he found that she had received the Board's written decision and, if he found that she had not received the Board's written decision, to determine the effect of the Board's failure to notify her in writing of its termination decision. The hearing officer denied the motion to clarify on August 10, 2016.

Later, in an August 16, 2016, letter Dailey's attorney sent to the hearing officer concerning the composition of the record on appeal to be submitted to this court, Dailey's attorney asked, among other things, for a copy of "[a]ny document filed with you represented as the decision or notice of decision from the [Board] terminating the employment of [Dailey]." The hearing officer responded by letter, dated August 24, 2016, stating, in pertinent part, that "any such document as it might be interpreted by the parties is in the original record."

Dailey timely appealed the hearing officer's affirmance of the Board's termination decision to this court. On appeal, Dailey argues that the SFA requires that the Board issue a written decision and that its failure to do so deprived her of her due-process rights under the United States Constitution. In support of her argument that the SFA requires that she be provided written notice of the Board's termination decision, Dailey cites § 16-24C-6(d). That section provides:

"Whether or not the employee requests a hearing before the governing board ..., the chief executive officer shall give written notice to the employee of the decision regarding the proposed termination within 10 calendar days after the vote of the board.... If the decision follows a hearing requested by the employee, the notice shall also inform the employee of the right to contest the decision by filing an appeal as provided in this chapter."

(Emphasis added.)

Dailey contends that she did not receive written notice of the Board's decision until the close of the administrative hearing, when the Board sought to supplement the record before the hearing officer to include its written decision; she avers in her brief submitted to this court that, out of an abundance of caution, she had appealed following the oral ruling of the Board within the period set forth in the SFA. The Board maintains that it did provide Dailey with "post-hearing notice of the Board's decision," but it concedes that the official record submitted to the hearing officer did not include a written decision by the Board concerning Dailey's employment.

Thus, the parties agree that the record before the hearing officer contained no written notice of the Board's decision. The parties disagree, however, regarding whether such notice was required.

" '[It is well established that where the issues involve only the application of law to undisputed facts appellate review is de novo. See, e.g., State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 810 (Ala. 2005). This has been held to be true where a hearing officer's decision is otherwise subject to more limited review. Ex parte Wilbanks Health Care Servs., 986 So.2d 422, 425 (Ala. 2007) ("Review of the hearing officer's conclusions of law or application of the law to the facts is de novo."); Barngrover v. Medical Licensure Comm'n of Alabama, 852 So.2d 147, 152 (Ala. Civ. App. 2002) ("The presumption of correctness does not attach to the hearing officer's conclusions of law; further, no presumption of correctness exists when a hearing officer improperly applied the law to the facts.").'
" Ex parte Soleyn, 33 So.3d 584, 587 (Ala. 2009). See also Huntsville City Bd. of Educ. v. Stranahan, 130 So.3d 204, 206 (Ala. Civ. App. 2013) ('We note that the facts pertaining to this issue are undisputed, and, therefore, the argument involves whether the hearing officers properly applied the law to the undisputed facts. Accordingly, this court reviews this issue de novo.'). We are not required to resolve any factual disputes in order to answer the questions of law presented in this case. Our review is therefore de novo."

Ex parte Lambert, 199 So.3d 761, 765 (Ala. 2015).

In support of the hearing officer's decision, the Board relies upon Cox v. Mobile County Board of School Commissioners, 157 So.3d 897 (Ala. Civ. App. 2013). In that case, Cox contested, pursuant to the SFA, the decision of the Mobile County Board of School Commissioners ("the Mobile Board") to terminate her employment. The Mobile Board conducted a hearing on August 2, 2012, but did not issue its written notice of its termination decision until August 24, 2012. In her appeal, Cox argued that the Mobile Board's failure to issue its written notice of decision within 10 days after the hearing, as provided in § 16-24C-6(d) of the SFA, constituted an abandonment of its termination decision. This court disagreed, concluding that Cox had failed to show that she was prejudiced by the Mobile Board's late issuance of its written decision and, therefore, that her due-process rights were not violated under the facts of that case. 157 So.3d at 903-04. In reaching its holding, this court stated, in part:

" 'In this case, as in all cases of statutory interpretation, we must consider the intent of the legislature in enacting the statute. Morgan County Board of Education v. Alabama Public School & College Authority, 362 So.2d 850 (Ala. 1978) ; Drake v. Pennsylvania Threshermen & Farmers' Mutual Casualty Insurance Co., 265 Ala. 444, 92 So.2d 11 (1957). The statute in this case is very clear in its provisions. It precedes every provision with the word "shall." The word shall is normally considered to be mandatory, but in some cases has been held to be merely directory.
" 'It has been held that where a provision relates only to form or manner, it is directory. Mobile County Republican Executive Committee v. Mandeville, 363 So.2d 754 (Ala. 1978) ; Board of Education of Jefferson County v. State, 222 Ala. 70, 131 So. 239 (1930). In the Mobile County case it was also stated that legislative intent controls over the use of the words "shall," "may," or "must." See also Morgan v. State, 280 Ala. 414, 194 So.2d 820, appeal dismissed , cert. denied, 389 U.S. 7, 88 S.Ct. 47, 19 L.Ed.2d 6 (1967). The use of the word "shall," therefore, should not be construed as mandatory if the intent of the legislature shows that the term is merely directory.' "

157 So.3d at 902 (quoting Key v. Alabama State Tenure Comm'n, 407 So.2d 133, 135 (Ala. Civ. App. 1981) ). In Cox, supra, this court concluded that the 10-day period after a hearing in which a written notice of decision is to be issued by a board is directory, rather than mandatory; it then concluded that Cox had not argued or demonstrated that the "tardy notice" she had received of the Mobile Board's written decision had prejudiced her. Cox, 157 So.3d at 903-04. The court then noted that "[w]hether a longer or a more clearly prejudicial delay might constitute reversible error is not properly before us ...." Cox, 157 So.3d at 904.

In this case, unlike in Cox, supra, the issue is not the timeliness of a written notice of decision of the Board pursuant to § 16-24C-6(d). Instead, in this case, the record does not demonstrate that any such written notice of decision was provided by the Board. The intent of the legislature in enacting the SFA was, in part, to provide "for fundamental fairness and due process to employees covered by" the SFA and to "[e]liminat[e] costly, cumbersome, and counterproductive legal challenges to routine personnel decisions by simplifying administrative adjudication and review of contested personnel decisions." § 16-24C-2(1) & (5), Ala. Code 1975. In addition, in enacting the SFA, the legislature specified that the SFA was intended to "to provide rights, remedies, and obligations with respect to employment actions affecting or involving certain employees or categories of employees of city and county boards of education ...." Act No. 2011-270, Ala. Acts 2011, Title. Thus, it is clear from the intent of the legislature in enacting the SFA that, although the SFA is intended to simplify contests and reduce costs, it is intended to do so while protecting the rights of the employees and teachers to which the SFA applies.

The requirement that the Board provide written notice of its termination decision to an employee is a " 'provision[ ] which relate[s] to the essence of the thing to be done; that is, to matters of substance, [and, therefore, is] mandatory.' " Board of Educ. of Jefferson Cty. v. State, 222 Ala. 70, 74, 131 So. 239, 243 (1930) (quoting Alabama Pine Co. v. Merchants' & Farmers' Bank of Aliceville, 215 Ala. 66, 67, 109 So. 358, 359 (1926) ). See also Howard v. Cullman Cty., 198 So.3d 478, 485 (Ala. 2015) (affirming a determination by the trial court that "the timing provision of former § 40-7-42[, Ala. Code 1975,] is directory, while the requirement to levy the amount of property taxes necessary to fund a county's expenses is mandatory"). That conclusion is consistent with the holding of Cox, supra, which determined that the provision pertaining to the timing of the required written notice is directory.

The record does not demonstrate that the Board complied with the mandatory requirement that it provide Dailey with written notice of its decision. That conclusion, however, does not end this court's analysis. Rather, this court must consider whether the hearing officer obtained jurisdiction to conduct an administrative review of the Board's decision in the absence of the written notice of the decision required by § 16-24C-6(d). D.C.S. v. L.B., 84 So.3d 954, 957 (Ala. Civ. App. 2011) ("[J]urisdictional issues are of such importance that this court may take notice of them ex mero motu.").

In a recent case, this court considered, among other things, whether jurisdiction existed to consider an administrative action under the Alabama Administrative Procedure Act ("the AAPA"), § 41-22-1 et seq., Ala. Code 1975. Huntsville Hous. Auth. v. State Licensing Bd. for Gen. Contractors, 179 So.3d 146 (Ala. Civ. App. 2014). In that case, the Alabama Licensing Board for General Contractors ("ALBGC") denied an application by the Huntsville Housing Authority ("HHA") for a general contractor's license, and the HHA requested an administrative hearing. After that hearing, a representative of the ALBGC informed a representative of the HHA that the application had again been denied and that a written decision would be sent to the HHA. The HHA appealed when it did not timely receive a written decision from the ALBGC; this court's opinion recognized that the HHA argued that it had not received a written notice, but that it had appealed the oral denial regardless. 179 So.3d at 148. The circuit court dismissed the HHA's appeal, concluding that it had failed to meet the requirements of the AAPA in filing its appeal. On appeal of that judgment to this court, this court concluded, among other things, that the AAPA requires that a final order be in writing, see § 41-22-16(a), Ala. Code 1975, and, therefore, that the ALBGC's failure to enter the written decision required by the AAPA resulted in there being no decision of which the circuit court could obtain jurisdiction to review. Huntsville Hous. Auth., 179 So.3d at 153-55. This court stated: "To be clear, this court holds that because there is no written final decision within the meaning of the AAPA in the present case, there is nothing for HHA to appeal from to invest the circuit court with subject-matter jurisdiction." Huntsville Hous. Auth., 179 So.3d at 156. This court held that the circuit court had dismissed the HHA's appeal for an incorrect reason, and, although it affirmed the result, i.e., the judgment of dismissal, this court directed the trial court to enter a judgment in compliance with its opinion. Id.

Although Huntsville Housing Authority, supra, was decided under the AAPA, the conclusions of this court in that case and in this case are that the applicable statute requires the issuance of a written decision by the pertinent agency. There is no indication in the record that the Board complied with the mandate of § 16-24C-6(d) requiring that it issue a written notice of its termination decision to Dailey. Accordingly, the record contains no decision from which Dailey could appeal that would have invested the hearing officer with subject-matter jurisdiction. The hearing officer is therefore instructed to enter an order dismissing the action. See § 16-24C-6(d), Ala. Code 1975. We pretermit discussion of the other issues raised in the parties' appellate briefs.

After this court released its opinion on original submission, the Board filed, together with an application for rehearing, a motion to supplement the record on appeal to include its written decision. The Board correctly points out that the written decision was referenced as having been attached as an exhibit to that part of its post-hearing brief in which it sought to supplement the administrative record. It contends on application for rehearing that that exhibit should have been included in the original record as an exhibit to that filing. However, neither in its motion to supplement nor in its application for rehearing does the Board explain why it did not seek to supplement the record on original submission to include that decision.

The Board also argues for the first time on rehearing that the hearing officer's August 24, 2016, letter in response to a letter from Dailey's attorney about the composition of the record on appeal indicates that the hearing officer did consider the Board's written decision and, therefore, that this court should also consider that decision in reaching the merits of the appeal. However, that letter was sent after the hearing officer denied Dailey's motion to clarify, and it cannot be said to be a ruling in this matter.

The Board cites Walker v. Eubanks, 424 So.2d 631, 633 (Ala. Civ. App. 1982) (opinion on application for rehearing), in which this court allowed an appellant to supplement a record on appeal as a part of an application for rehearing to correct the "inadvertent omission" by the trial-court clerk of an earlier judgment that was relevant to the analysis of an appeal of the denial of a motion filed pursuant to Rule 60(b), Ala. R. Civ. P. In this case, however, there was no "inadvertent omission" of a part of the record. Both parties recognized on original submission that the written decision was not included in the original record. The Board did not seek to supplement the record on original submission pursuant to Rule 10(f), Ala. R. App. P. Rather, the Board argued in its brief on original submission that the hearing officer had determined that the termination of Dailey's employment was proper even without the written notice of its decision, that Dailey was not prejudiced by its alleged failure to provide her written notice of its decision, and that the fact that the written notice of its decision was "not part of the record did not and does not prejudice Ms. Dailey in any way."

The Board's arguments in its motion to supplement and its arguments in its application for rehearing concerning supplementing the record on appeal, made only after this court reached a decision adverse to the Board, are impermissibly made for the first time on rehearing. See Kaufman v. Kaufman, 22 So.3d 458, 466 (Ala. Civ. App. 2007) (holding that an argument that the record on appeal should be supplemented on rehearing was improperly raised for the first time on application for rehearing).

"A rehearing is not an opportunity to raise new issues not addressed on original application. See Town of Pike Road v. City of Montgomery, [57 So.3d 693, 694] (Ala. 2006) (opinion on application for rehearing) ('As a general rule, the Court does not consider matters raised for the first time in an application for rehearing.' (citing Morgan Keegan & Co. v. Cunningham, 918 So.2d 897, 908 (Ala. 2005) )); Riscorp, Inc. v. Norman, 915 So.2d 1142, 1155 (Ala. 2005) (opinion on application for rehearing) (" 'The well-settled rule of this Court precludes consideration of arguments made for the first time on rehearing.' " (quoting Water Works & Sewer Bd. of Selma v. Randolph, 833 So.2d 604, 608 (Ala. 2002) )); and Kirkland v. Kirkland, 281 Ala. 42, 49, 198 So.2d 771, 777 (1967) ('We cannot sanction the practice of bringing up new questions for the first time in application for rehearing.'). Nor is an application for rehearing an invitation to reargue the issues already thoroughly considered on original application. See Willis v. Atlanta Cas. Co., 801 So.2d 837, 838 (Ala. 2001) (overruling an application for rehearing when it was 'simply an earnest reiteration of the appellant's original brief') (Johnstone, J., concurring specially). Instead, this Court invites an application for a rehearing so that we may be informed of a fact or a point of law that we have 'overlooked' or one that we have 'misapprehended.' "

Chism v. Jefferson Cty., 954 So.2d 1058, 1106-07 (Ala. 2006) (See, J., concurring specially on application for rehearing). In its application for rehearing, the Board does not contend that this court "misapprehended" its arguments; rather, it has impermissibly altered its arguments. "Matters not argued in an appellant's brief on original submission cannot be raised for the first time on application for rehearing." SouthTrust Bank v. Copeland One, L.L.C., 886 So.2d 38, 43 (Ala. 2003) (opinion on application for rehearing). We deny the Board's motion to supplement the record. See Walker v. Eubanks, 424 So.2d at 633-34 (holding that the decision whether to allow a party to supplement the record on appeal after this court has reached a decision and the matter is before the court on application for rehearing is a matter within this court's discretion); and Putnam v. City of Huntsville, 48 Ala.App. 33, 35, 261 So.2d 754, 756-57 (Civ. App. 1972) (opinion on application for rehearing) ("Several issues decided by the original decision are now presented to us again in the application for rehearing, but with new and different supporting argument; this new argument cannot now be considered. It comes too late.").

APPLICATION FOR REHEARING GRANTED; OPINION OF FEBRUARY 17, 2017, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED WITH INSTRUCTIONS.

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

      The parties dispute in their appellate briefs whether Dailey had a due-process right to written notice of the Board's decision and whether due process required that any such written notice contain findings of fact. We have concluded that the SFA required the Board to issue written notice to Dailey of its decision and that the Board failed to provide such notice, and, therefore, this court does not discuss any due-process issues in resolving this appeal.

      We note that, even assuming that the written decision had been attached as an exhibit to the Board's post-hearing brief in the original record, this court could not consider that decision as a part of the administrative record absent some indication that the hearing officer had considered it or included it in the record. See, e.g., Ex parte Price, [Ms. 1151041, April 14, 2017] --- So.3d ----, ---- (Ala. 2017) (holding that, in the context of a motion to dismiss, when there is no indication that a trial court has considered additional materials, the appellate courts will not consider those materials). Nothing in this court's opinion should be interpreted as reaching the issue whether the hearing officer should or should not have allowed the supplementation of the record to include the Board's written decision.

      Also, on application for rehearing, the Board argues for the first time that the appropriate remedy would be for this court to remand the action and to instruct the hearing officer, on remand, to address its motion to supplement the record. See SouthTrust Bank v. Copeland One, L.L.C., 886 So.2d 38, 43 (Ala. 2003) (opinion on application for rehearing)(issues may not be raised for the first time on application for rehearing). The Board has cited no applicable authority for the proposition that a failure to invest an administrative-hearing officer with jurisdiction may be cured by a reconsideration of a motion to supplement the record.


author: THOMPSON, Presiding Judge. MOORE, Judge, dissenting.

text:
    K.R. v. W.L.
    2150660
    Court of Civil Appeals of Alabama.
    May 12, 2017
    Erin B. Welborn, Columbiana, for appellant.
    Sandi Eubank Gregory and Courtney Brown Dubberly, Homewood, for appellee.
   THOMPSON, Presiding Judge.

On March 6, 2015, W.L. and L.L. filed petitions in the Shelby Juvenile Court ("the juvenile court") seeking to terminate the parental rights of C.C.J. ("the father") and K.R. ("the mother") to their two minor children. L.L., who has divorced W.L., withdrew or failed to prosecute her claims in the termination actions.

The juvenile court conducted an ore tenus hearing over the course of two days. On March 3, 2016, the juvenile court entered orders in which it terminated the parental rights of the mother and the father and awarded permanent legal custody of the children to W.L. We note that the March 3, 2016, orders stated, in part, that the termination-of-parental-rights actions were "consolidated" with an adoption action W.L. had filed in the Shelby Probate Court ("the probate court") and that had been transferred to the juvenile court. In Hanner v. Metro Bank & Protective Life Insurance Co., 952 So.2d 1056, 1060-61 (Ala. 2006), our supreme court determined that, when cases are consolidated, no final judgment arises until all the claims to the consolidated actions have been adjudicated unless the trial court certifies its judgment as final under Rule 54(b), Ala. R. Civ. P. Accordingly, this court questioned, ex mero motu, whether the March 3, 2016, orders were final. See Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987) ("[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu."). We note that no filings from the adoption action are contained in the record on appeal. The record indicates that the adoption action was "transferred" to the juvenile court, but, other than the reference in the March 3, 2016, orders and references by the parties to "consolidation," the record contains no indication that the actions were consolidated. Accordingly, this court remanded the actions to the juvenile court to notify this court of any order consolidating the termination-of-parental-rights actions with the adoption action that had been transferred from the probate court. On April 18, 2017, the juvenile court entered an order stating that it had not intended to consolidate the actions and that no order consolidating the actions had been entered. Therefore, the March 3, 2016, orders entered by the juvenile court in the termination-of-parental-rights actions were final judgments in the termination-of-parental-rights actions.

The mother filed a timely postjudgment motion on March 17, 2016. See Rule 4(a)(3), Ala. R. App. P. ("The filing of a post-judgment motion pursuant to [Rule 59] of the Alabama Rules of Civil Procedure ... shall suspend the running of the time for filing a notice of appeal."); Rule 1(B), Ala. R. Juv. P. (In juvenile actions, "[a]ll postjudgment motions ... must be filed within 14 days after entry of order or judgment and shall not remain pending for more than 14 days ...."); and F.G. v. State Dep't of Human Res., 988 So.2d 555, 557 (Ala. Civ. App. 2007) ("In a juvenile case, a postjudgment motion must be filed no later than 14 days after the entry of the judgment."). On March 29, 2016, the juvenile court entered an order, applicable to both termination-of-parental-rights actions, stating: "Motion to Alter, Amend, or Vacate filed by the mother is hereby specifically set for hearing on April 8, 2016, at 8:30 a.m." The juvenile court purported to enter a postjudgment order applicable to both termination-of-parental-rights actions on April 8, 2016. However, the juvenile court lacked jurisdiction to enter that order because the mother's March 17, 2016, postjudgment motion had been denied by operation of law on March 31, 2016, which was 14 days after that motion was filed. See Rule 59.1, Ala. R. Civ. P.; Rule 1(B), Ala. R. Juv. P. See also T.P. v. T.J.H., 10 So.3d 613, 614 (Ala. Civ. App. 2008) (the juvenile court lacked jurisdiction to rule on a postjudgment motion more than 14 days after that motion was filed). The mother had 14 days, or until Thursday, April 14, 2016, to timely appeal the March 31, 2016, denial by operation of law of her postjudgment motion. Rule 1(B), Ala. R. Juv. P.; J.S. v. State Dep't of Human Res., 597 So.2d 1376, 1377 (Ala. Civ. App. 1992).

However, the mother filed her notice of appeal on April 15, 2016. The mother's notice of appeal was untimely and did not invoke the jurisdiction of this court, and, therefore, we must dismiss the appeals. J.S. v. State Dep't of Human Res., supra ; T.P. v. T.J.H., supra.

W.L.'s motion to strike the mother's amended brief on appeal is denied as moot.

APPEAL DISMISSED.

Pittman, J., concurs.

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

Moore, J., dissents, with writing, which Donaldson, J., joins.

MOORE, Judge, dissenting.

On March 3, 2016, the Shelby Juvenile Court ("the juvenile court") entered its final judgments terminating the parental rights of K.R. ("the mother") to her two minor children. The mother filed a timely postjudgment motion in the actions on March 17, 2016. On March 29, 2016, the juvenile court entered an order, applicable to both actions, stating: "Motion to Alter, Amend or Vacate filed by the mother is hereby specifically set for hearing on April 8, 2016 at 8:30 a.m." After that hearing, on April 8, 2016, the juvenile court entered an order, applicable to both actions, purporting to grant the postjudgment motion in part and to deny the postjudgment motion in part. The mother filed a notice of appeal seven days later, on April 15, 2016.

According to Rule 1(B), Ala. R. Juv. P., a postjudgment motion filed in a juvenile-court proceeding can remain pending for only 14 days, at which point it will be denied by operation of law, unless, within that 14-day period, the time allowed for the postjudgment motion to remain pending has been extended:

"(1) By written order of the juvenile court on its own motion, or upon motion of a party for good cause shown, for not more than 14 additional days; or
"(2) Upon the express written consent of all the parties, which consent shall appear of record; or
"(3) By the appellate court to which an appeal of the judgment would lie."

(Emphasis added.) In these cases, the juvenile court entered a written order within the 14-day period in which the mother's postjudgment motion could remain pending, but the written order stated only that the hearing on the postjudgment motion would take place after the initial 14-day period had expired. The written order did not specifically provide that the juvenile court intended to extend the time that the postjudgment motion could remain pending.

Rule 1(B)(2) and (3), Ala. R. Juv. P., follows Rule 59.1, Ala. R. Civ. P., which allows the parties and the appellate court to extend the time in which a postjudgment motion may remain pending. In regard to an agreement of the parties to extend the time that a postjudgment motion may remain pending, the appellate courts of this state have consistently held that an agreement by the parties to continue a hearing on a postjudgment motion does not equate to an agreement to extend the time a postjudgment motion can remain pending under Rule 59.1, Ala. R. Civ. P. See Ex parte Bolen, 915 So.2d 565, 569 (Ala. 2005) (explaining that Rule 59.1 has been construed consistently since at least 1979). However, I cannot locate any cases construing Rule 1(B)(1), Ala. R. Juv. P., in the same manner.

In K.T. v. B.C., 232 So.3d 897 (Ala. Civ. App. 2017), this court held that a juvenile court can, by written order, extend the time for ruling on a postjudgment motion by entering a written order granting itself additional time to rule on the merits of the motion and by scheduling a subsequent hearing for that purpose, so long as the ruling on the motion takes place within the additional 14-day period provided by Rule 1(B)(1). In these cases, the juvenile court, in substance, scheduled a hearing within the additional 14-day period allowed in Rule 1(B)(1) in order to determine the merits of the mother's postjudgment motion. The juvenile court's order communicated that it was extending the time to rule on the postjudgment motion. Although the juvenile court did not expressly state as much, its order clearly implied that it was planning to hear arguments regarding the postjudgment motion and to rule upon the motion following those arguments, which it did, after the postjudgment motion otherwise would have been denied by operation of law. The juvenile court is presumed to know and apply the law. See Ex parte Slaton, 680 So.2d 909 (Ala. 1996). If we were to interpret the written order as scheduling a hearing after the juvenile court lost jurisdiction, we would be presuming that the juvenile court either was ignorant of Rule 1(B)(1) or that it intentionally acted in contravention of the law.

Furthermore, in a Rule 59.1 situation, the parties must place on the record their agreement to extend the time that a postjudgment motion can remain pending. The contents of that agreement are wholly within the power of the parties. In a Rule 1(B)(1) situation, the parties have no control over the content of the written order issued by the juvenile court. Presumably, a party could seek clarification of such an order, but the party does not have any input into its original wording. Given those circumstances, the rule should be liberally construed in a manner different from the manner in which Rule 59.1 has been construed so that a written order scheduling a hearing within the additional 14-day period provided by Rule 1(B)(1) should be considered as extending the time in which the postjudgment motion can remain pending unless the context of the order clearly indicates otherwise.

Finally, the Alabama Rules of Civil Procedure and the Alabama Rules of Juvenile Procedure should be not be construed in such a manner that it creates a trap for an unwary attorney. Kissic v. Liberty Nat'l Life Ins. Co., 641 So.2d 250, 252 (Ala. 1994). The manner in which the appellate courts have construed Rule 59.1 has certainly ensnared many an appellant who, in reliance on an agreement to extend the time for a hearing on a postjudgment motion, has failed to timely file a notice of appeal, leading many supreme court justices and judges of this court to question the justness of that construction. See Harrison v. Alabama Power Co., 371 So.2d 19, 21 (Ala. 1979) (Maddox, J., dissenting); State v. Redtop Mkt., Inc., 937 So.2d 1013, 1015-17 (Ala. 2006) (in which Nabers, C.J., and Stuart and Bolin, JJ., all expressed that the overly technical construction of Rule 59.1 should be overruled); Traylor v. Traylor, 976 So.2d 447, 450 (Ala. Civ. App. 2007) (Bryan, J., concurring in result, joined by Thomas, J., stating that an agreement to extend the time to hold a hearing should be considered an agreement to extend the time that a postjudgment motion can remain pending). I believe that, in a proper setting, the supreme court would overrule the line of cases that have construed Rule 59.1 so strictly. Therefore, in my opinion, this court should not construe Rule 1(B)(1) in the narrow manner that has led to so many unjust results under Rule 59.1 and I believe that would likely be overruled by the supreme court on certiorari review in light of its experience with Rule 59.1.

Construing Rule 1(B)(1) correctly, the juvenile court in this case properly extended the time for ruling on the postjudgment motion so that it was not denied by operation of law on March 31, 2016, as the main opinion concludes. 238 So.3d at 665. The juvenile court entered a valid order on April 8, 2016, within the extended 14-day period afforded by Rule 1(B)(1). That order concluded the proceedings. The mother filed her notice of appeal on April 15, 2016, less than 14 days later. See Rule 28(C), Ala. R. Juv. P. ("Written notice of appeal shall be filed within 14 days of the date of the entry of order or judgment appealed from, whether the appeal is to an appellate court or to the circuit court for trial de novo."). This court has jurisdiction over the appeal because the mother provided an adequate record for review. See Rule 28(A)(1)(c), Ala. R. Juv. P. Therefore, I respectfully dissent from the decision to dismiss the appeal.

Donaldson, J., concurs.

      The father is not a party to this appeal.

      Although the juvenile court referred to an adoption action and indicated that the adoption action had been consolidated with the termination-of-parental-rights actions, the juvenile court has informed this court that no consolidation order had ever been entered. Thus, as the main opinion holds, 238 So.3d at 665, the rule from Hanner v. Metro Bank & Protective Life Insurance Co., 952 So.2d 1056 (Ala. 2006), does not apply.


text:
    Melissa Kay HUMBER v. Austin Levi HUMBER, Jr.
    2150922
    Court of Civil Appeals of Alabama.
    May 12, 2017
    Mark B. Turner, Birmingham, for appellant.
    Submitted on appellant's brief only.
   THOMPSON, Presiding Judge.

Melissa Kay Humber ("the mother") appeals from a judgment of the Walker Circuit Court ("the trial court") suspending the child-support obligation of Austin Levi Humber, Jr. ("the father"), "until such time [as the mother] can prove to the Court beyond a reasonable doubt that [the father] can pay the court ordered child support."

The record indicates the following. The parties divorced in 2003. According to the pleadings in this matter, on June 23, 2006, the trial court ordered the father to pay child support in the amount of $1,299 for the parties' two children. On September 16, 2015, the father filed in the trial court a petition to modify his child-support obligation alleging that, since the entry of the June 2006 order, there had been a material change in circumstances warranting modification of that order. At the May 27, 2016, hearing on the modification petition, the father testified that he had worked for United States Steel Corporation ("USX") for 21 years but that he had been laid off on August 23, 2015. The father testified that whether USX would call him back was "still up in the air."

Evidence demonstrated that, before he was laid off, the father's annual gross income was $53,463. When the 2006 child-support order was entered, the father had earned a gross annual income of $64,800. At the time of the hearing, the father testified that the unemployment benefits he had received from the State of Alabama because of the layoff had expired. However, the record indicates that he had not sought to make a new claim for further state unemployment benefits, which his notice of final payment under his initial claim directed. The father testified that he still received "supplemental unemployment benefits" from USX. Documents showed that, from January 1, 2016, to April 2, 2016, the father had received $5,394 from USX. He said that he received from USX a net income of $465 every two weeks but that he would lose the supplemental unemployment benefits after he had been laid off for two years. He also continued to receive family health insurance through USX. The father testified that he is not able to meet his monthly child-support obligation of $1,299 because, he said, he does not even bring home that much money each month. Evidence indicates that the father had made partial payments of varying amounts toward his child-support obligation at various times since being laid off.

The father said that he had applied for dozens of jobs since being laid off from USX and that he had even had some offers. However, he said, the jobs he was offered paid between $8 and $9 an hour. The father testified that, after taxes, he received approximately the same amount from his supplemental unemployment benefits from USX as he would have received from those jobs. Furthermore, if he took one of those jobs, the father said, USX required that he take the new employer's health insurance as his primary insurance. USX provided the family with health insurance at no cost to the father. The father said that he felt like he was "stuck between a rock and a hard place" regarding whether it was better to remain unemployed and rely on his USX supplemental unemployment benefits or to accept a lower-paying job.

The father testified that, at the time of the hearing, he was enrolled in a program that "pays for people that were displaced because of foreign products to learn another trade," and, through that program, he was enrolled at a community college, taking courses to become an electrician.

The father also testified that, when he was laid off, he was just two days from being fully vested with USX for retirement purposes. He explained USX's retirement policy and said that, because of the layoff, he now had to wait until August 2017, the month he turns 47, to be eligible to receive his pension. He said that he did not know the specific amount his pension benefit would be at that time, but he estimated that it would be between $2,200 and $2,500 a month.

The mother testified that she was an area supervisor for a fast-food restaurant. She said that her gross annual income at the time of the hearing was $89,400. At the time of the hearing, the parties' children were ages 16 and 14.

The evidentiary hearing was held on May 27, 2016. That same day, the trial court filed a completed "Child-Support Guidelines" form ("the CS-42 form") on which it calculated the parties' respective child-support obligations. The form reflects that the father had a gross monthly income of $1,560 and that the mother had a gross monthly income of $7,450. The trial court determined that the father's percentage share of income was 17.31% and that his basic child-support obligation, reflected on line four of the form, was $1,438. However, on line eight of the form, the trial court found that the father's child-support obligation was $318.23. The trial court then gave the father a $400 adjustment for the payment of health insurance for the children, resulting in a deficit of $81.77 as the "recommended child support order."

Also on May 27, 2016, the trial court entered a judgment finding that, as a result of being laid off from USX, the father's income had been "dramatically reduced from over $5,000 a month to only receiving unemployment supplemental income of $250 every two weeks. Once [the father] was laid off, his ability to pay his child support was impaired if not completely damaged." In the judgment, the trial court stated:

"Once [the father] provided the Court the evidence of his inability to pay the court ordered amount, [the mother] was obligated to prove beyond a reasonable doubt that [the father] was financially able to pay the amount of child support ordered. She did not provide the evidence to support the evidentiary burden imposed by law."

The trial court also found that the father could not "obtain work at a sufficient income level to pay his child support without sacrificing his children's health." The judgment continued:

"The Court did calculate child support taking into consideration a $9 an hour at 40 hours a week job for [the father] with him still paying the health insurance and [the mother's] current income. His child support payment would be -$82 a month. The parties can recognize a negative child support amount is contrary to the law so the child support guidelines will not be followed."

The trial court then directed that the father's child-support obligation be terminated.

On June 24, 2016, the mother filed a timely motion to alter, amend, or vacate the judgment in which she asserted, among other things, that the father had not sought a termination of his child-support obligation but only a reduction in that obligation and that the evidence did not support the trial court's judgment. The next day, June 25, 2016, the trial court amended its judgment to suspend the father's child-support obligation, as opposed to terminating child support, "as of November 1, 2015, until such time [as the mother] can prove to the Court beyond a reasonable doubt that [the father] can pay the court ordered child support." On July 19, 2016, the trial court entered an order denying the mother's postjudgment motion.

The mother filed a timely notice of appeal to this court. The father did not submit a brief on appeal.

On appeal, the mother asserts that the father did not meet his burden of demonstrating that his changed circumstances were both substantial and continuing; therefore, she says, a modification of the father's child-support obligation was not warranted. Specifically, the mother argues that the father failed to demonstrate that his reduction in income was not just temporary and that he could not earn sufficient income to meet his child-support obligation.

The applicable standard for reviewing this issue is well settled:

" 'When a trial court hears ore tenus evidence, its judgment based on facts found from that evidence will not be disturbed on appeal unless the judgment is not supported by the evidence and is plainly and palpably wrong. Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala. Civ. App. 1990). Further, matters of child support are within the sound discretion of the trial court and will not be disturbed absent evidence of an abuse of discretion or evidence that the judgment is plainly and palpably wrong. Id.'
" Spencer v. Spencer, 812 So.2d 1284, 1286 (Ala. Civ. App. 2001). However, the trial court's application of law to facts is reviewed de novo. See Ladden v. Ladden, 49 So.3d 702, 712 (Ala. Civ. App. 2010)."

Jones v. Jones, 101 So.3d 798, 802 (Ala. Civ. App. 2012).

"An award of child support may be modified only upon proof of a material change of circumstances that is substantial and continuing. Browning v. Browning, 626 So.2d 649 (Ala. Civ. App. 1993). The parent seeking the modification bears the burden of proof. Cunningham v. Cunningham, 641 So.2d 807 (Ala. Civ. App. 1994). Whether circumstances justifying modification of support exist is a matter within the trial court's discretion. Id. We will not disturb the trial court's decision on appeal unless there is a showing that the trial court abused that discretion or that the judgment is plainly and palpably wrong. Id.; Douglass v. Douglass, 669 So.2d 928, 930 (Ala. Civ. App. 1995)."

Romano v. Romano, 703 So.2d 374, 375 (Ala. Civ. App. 1997) (emphasis added). The mother has not challenged the burden of proof the trial court imposed on her in this matter. Therefore, any argument she could have made on appeal regarding whether the trial court applied the correct burden of proof in this case is deemed waived. Gary v. Crouch, 923 So.2d 1130, 1136 (Ala. Civ. App. 2005) ("[T]his court is confined in its review to addressing the arguments raised by the parties in their briefs on appeal; arguments not raised by the parties are waived."); see also Palmer v. Palmer, 192 So.3d 12 (Ala. Civ. App. 2015) (same).

In support of her contention that the father failed to prove that his decrease in income is substantial and continuing, the mother pointed out (and the trial court recognized) that the father had turned down offers for jobs paying $9 an hour. Additionally, the mother referred to the evidence showing that the father did not actually know how long he would be laid off and that, at the latest, he would begin receiving additional income in August 2017, when he would begin receiving a pension benefit of up to $2,500 a month. Therefore, the mother contends, the father failed to prove that he had had a material change of circumstances that was both substantial and continuing.

The evidence also indicates that the father was laid off from his job with USX on August 23, 2015. At the time of the trial on May 27, 2016, nine months after being laid off, the father was still unemployed. He submitted into evidence a letter from Caroline Fikes, a USX employee-services representative, indicating that he was "placed on layoff ... with no call back date known at this time." The letter was dated February 5, 2016. At the trial, which was held nine months after the father had been laid off, the father testified that there still was not a "call back date" and that the layoff was continuing.

In King v. Barnes, 54 So.3d 900, 904 (Ala. Civ. App. 2010), this court reversed a judgment denying a request to modify the child-support obligation of a father who had lost his job and had been unable to find permanent employment. The father in that case testified that he had worked sporadically since losing his job but that "those sporadic earnings did not enable him to pay his past-due bills." Id. The mother in that case failed to present evidence to dispute that contention. Id. We held that, based on the undisputed evidence indicating that the father did not have the ability to pay child support despite his efforts to find employment, the circuit court had abused its discretion in refusing to modify the father's child-support obligation. Id.

In King, we discussed a similar case involving a request for a child-support modification after a father lost his job.

"In Rotar v. Weiland, 591 So.2d 893 (Ala. Civ. App. 1991), this court reversed a decision of the Mobile Circuit Court that failed to modify the father's child-support obligation. In Rotar, the evidence revealed that the father had lost his job, that he had 'vigorously sought employment but his efforts to earn income ha[d] failed,' that he had taken money out of his retirement plan in order to pay child support, and that he was being supported by his new wife at the time of the trial. 591 So.2d at 895. In determining that there was no evidence to indicate that the father had any means with which to pay the ordered child support and in reversing the trial court's judgment, this court stated: 'While the trial court is afforded the discretion to determine whether there has been a material change in a parent's circumstances, it is not at liberty to ignore undisputed evidence concerning a parent's ability to pay.' Id. See also Banks v. Spurlock, 470 So.2d 1300, 1302 (Ala. Civ. App. 1985) ('A parent is entitled, upon petition for modification, to be relieved from an order of payment of child support if the evidence undisputedly shows he or she is without the financial means of complying.')."

King, 54 So.3d at 904.

In Poh v. Poh, 64 So.3d 49, 57-58 (Ala. Civ. App. 2010), this court relied on our holdings in King and Rotar v. Weiland, 591 So.2d 893 (Ala. Civ. App. 1991), to reject establishing a bright-line rule regarding what constitutes a sufficient time for a period of unemployment to be deemed a "continuing" material change in circumstance. This court explained that

"our jurisprudence holds that each domestic-relations case is factually unique, especially with regard to a noncustodial parent's ability to pay child support to the other parent because the financial status of parties varies widely from case to case (as do the needs of their respective children).
"For that reason, this court has, on numerous occasions, stated that " '[c]hild support is always subject to modification based upon changed circumstances and a parent's ability to pay.' " Lo Porto v. Lo Porto, 717 So.2d 418, 421 (Ala. Civ. App. 1998) (quoting Gordy v. Glance, 636 So.2d 459, 461 (Ala. Civ. App. 1994) ) (emphasis added) (holding that clear error occurred when a trial court awarded a custodial parent real property as an advancement of the noncustodial parent's child-support obligation for two years after the divorce because the judgment did not practically permit the obligation to be modified during that two-year period); Gordy, 636 So.2d at 461 (noting that child support is always subject to modification based on changes in circumstances such as a parent's ability to pay; consequently, a custodial parent may be entitled to an increase in support in the future, if warranted); and Cole v. Cole, 540 So.2d 73, 75 (Ala. Civ. App. 1989) (rejecting a trial court's judgment that 'would have prevented any further modification of child support for any reason, regardless of how radically such circumstances or needs might be altered by future events')."

Poh, 64 So.3d at 58.

In this case, the trial court found that the father had been "offered other jobs but the income from those prospective employers would jeopardize the couple's children's health care insurance. Unfortunately in today's economic market, [the father] not only lost his job but he cannot obtain work at a sufficient income level to pay his child support without sacrificing his children's health." The trial court also explicitly found that the father's income had been "dramatically reduced" and that, once he was laid off, the father's "ability to pay his child support was impaired if not completely damaged."

There was substantial evidence before the trial court to support a conclusion that the father had proven a material change in circumstance since his child-support obligation had been established and that that change was substantial and continuing. Based on the record before us, our standard of review, and the arguments the mother has made on appeal, we cannot say that the trial court abused its discretion in granting the father's request for a modification.

The mother also contends that the trial court abused its discretion by suspending the father's child-support obligation because the father did not request such relief. Related to this issue is the mother's contention that the trial court's child-support calculations were incorrect and that the trial court failed to apply the child-support guidelines as required by Rule 32, Ala. R. Jud. Admin.

In completing the CS-42 form, the trial court determined that the father had a monthly gross income of $1,560. In its judgment, the trial court stated that, in calculating child support, it had imputed income to the father of $9 an hour for 40 hours a week. The CS-42 form accurately reflects the trial court's calculation. The child-support income affidavit the father filed with the trial court indicated a gross monthly income of $2,376, which included the state unemployment compensation of $1,060 that the father was receiving at the time he completed that affidavit. The father testified that he was no longer receiving that amount at the time of the trial, however. If the unemployment compensation is deducted from the gross monthly income reflected in the income affidavit, his gross monthly income would be $1,316, which is the amount of supplemental unemployment benefits he received from USX each month.

This court has held:

"The application of the Rule 32 child-support guidelines is mandatory. Thomas v. Norman, 766 So.2d 857, 859 (Ala. Civ. App. 2000). 'The trial court is not bound by the income figures advanced by the parties, and it has discretion in determining a parent's gross income. However, " '[t]his court cannot affirm a child-support order if it has to guess at what facts the trial court found in order to enter the support order it entered....' " Willis v. Willis, 45 So.3d 347, 349 (Ala. Civ. App. 2010) (quoting Mosley v. Mosley, 747 So.2d 894, 898 (Ala. Civ. App. 1999) ).' Morgan v. Morgan, 183 So.3d 945, 961 (Ala. Civ. App. 2014)."

Walker v. Lanier, 221 So.3d 470, 473-74 (Ala. Civ. App. 2016). The trial court's determination that the father had a gross monthly income of $1,560 is less than the father's actual income at the time the father filed his income affidavit, but it is more than the amount the father was receiving in supplemental unemployment benefits at the time of trial. The father had been offered jobs paying $9 an hour, but he had not accepted those jobs because he would then lose the health insurance USX was still providing to the father and the children. The trial court took into account the father's testimony that, if he accepted another job, he would have to pay for health insurance for the children and would not come out ahead financially. Based on the father's circumstances as reflected in the record, we cannot say that the trial court abused its discretion in imputing income to the father of $9 an hour for a 40-hour week.

However, on the CS-42 form, the trial court gave the father a $400 credit for the payment of health-insurance premiums. The father's testimony showed that one of the reasons he did not accept any of the jobs he was offered was because he would lose his health insurance through USX, which covered the children and for which he paid nothing. The father stated that, if he took another job, he would have to pay for health-insurance coverage. As the mother points out in her appellate brief, a review of the record reveals no evidence demonstrating that, at the time of the hearing, the father was incurring any expense toward the children's health insurance. In other words, the evidence does not support the trial court's determination that the father was to be given a $400 credit toward his child-support obligation because he was paying for health-insurance coverage for the children.

Because the trial court erred in giving the father credit for health-insurance payments he was not making, we reverse the judgment establishing the father's child-support obligation and remand the cause to the trial court to redetermine the father's child-support obligation in compliance with the Rule 32, Ala. R. Jud. Admin., child-support guidelines.

The mother's request for an attorney fee and costs on appeal is denied.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      The trial court also found, in a separate action with a separate case number, but tried at the same time as the father's modification action, that the father owed the mother $1,282 as reimbursement for his share of the children's medical expenses not covered by health insurance.

      In her brief, the mother did not make a legal argument or cite any legal authority to support her contention that the father's change in income was not substantial. "Rule 28(a)(10)[, Ala. R. App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived." White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008).