author: PARKER, Justice. MURDOCK, Justice

text:
    EX PARTE STATE OF ALABAMA BOARD OF EDUCATION et al. (In re: Sharper D. Adams et al. v. State of Alabama Board of Education et al.)
    1150366
    Supreme Court of Alabama.
    Sept. 9, 2016

      David R. Boyd, Dorman Walker, and G. Lane Knight of Balch & Bingham LLP, Montgomery; and Juliana T. Dean, Alabama Department of Education, Montgomery, for petitioners.
    Candis A. McGowan of Wiggins Childs Pantazis Fisher & Goldfarb, LLC, Birmingham; John D. Saxon, Birmingham; and Clinton M. Daughtrey, Montgomery, for respondents Sharper D. Adams et al.
    Robert M. Weaver of Quinn, Conner, Weaver, Davies & Rouco, LLP, Decatur, Georgia, for respondents Lucy Armstrong et al.
   PARKER, Justice.

The State of Alabama Board of Education (“SBOE”); Dr. Thomas B. Bice, individually and in his official capacity as the State Superintendent of Education; and Dr. Edward R. Richardson, individually and in his official capacity as the State Intervention Chief Financial Officer (hereinafter referred to collectively as “the petitioners”), petition this Court for a writ of mandamus directing the Jefferson Circuit Court (“the circuit court”) to vacate its order denying the petitioners’ motion to dismiss the claims filed against them by Sharper D. Adams and numerous other former employees of the Birmingham Board of Education (“the BBOE”) (hereinafter referred to collectively as “the respondents”) and to enter an order dismissing with prejudice all claims against the petitioners on the basis of immunity. We grant the petition in part, deny it in part, and issue the writ.

I. Facts and Procedural History

The School Fiscal Accountability Act, § 16-13A-1 et seq., Ala. Code 1975 (“the Accountability Act”), which became effective on June 1, 2006, Act No. 2006-196, Ala. Acts 2006, requires the State superintendent of education to oversee the financial integrity of the local school boards in Alar bama, § 16-13A-2, Ala. Code 1975. The Accountability Act also requires local school boards to submit certain financial reports, including an annual projected budget, to the State chief education financial officer (“the CEFO"). §§ 16-13A-6 and -7, Ala. Code 1975. In addition, local school boards must establish and maintain a minimum-reserve fund equal to one month of the local school board’s operating expenses. § 16-13A-9, Ala. Code 1975.

At the end of fiscal year 2011, the CEFO determined that 31 of Alabama’s 134 local school boards, including the BBOE, did not have a fully funded minimum-reserve fund. In fiscal year 2012, although the BBOE’s monthly operating expenses were approximately $17 million, the balance of the BBOE’s minimum-reserve fund was approximately $2 million. Thus, pursuant to § 16-13A-9, the BBOE’s minimum-reserve fund was underfunded by approximately $15 million.

In February 2012, because of the BBOE’s failure to fully fund its minimum-reserve fund, the CEFO met with representatives of the BBOE and other noncom-pliant local school boards to help them prepare a plan' to build and maintain the required minimum-reserve fund. Pursuant to the authority granted to the CEFO under the Accountability Act, the CEFO required the BBOE and other noncompli-ant local school boards to submit to the SBOE for its approval, by April 2, 2012, a financial-recovery plan detailing how the boards planned to fully fund their required minimum-reserve funds. Once approved by the SBOE, the local school boards’ financial-recovery plans were-to be adopted as a resolution by the local school board. The resolutions adopting the financial-recovery plans were to be submitted to the SBOE by May 31, 2012.

The BBOE failed to submit a financial-recovery plan to the SBOE for its approval by the April' 2, 20Í2, deadline, and its minimum-reserve fund remained underfunded. As a result, on April 12, 2012, the SBOE adopted a “Resolution for an Investigative Review of the Governance of the [BBOE].” This resolution authorized and directed Dr. Bice to “investigate, review, and resolve by , appropriate order(s) all controversies and matters” concerning the BBOE.

Throughout April and May 2012, the SBOE and the BBOE worked to create a financial-recovery plan for the BBOE. The CEFO met with the BBOE to discuss the specifics of a potential financial-recovery plan on April 18, April 24, and May 24, 2012.

On May 31, 2012, the CEFO and the superintendent of the BBOE presented a financial-recovery plan (“the financial-recovery plan”) to the BBOE for the BBOE’s adoption. The financial-recovery plan included, among other things, a reduction in force (“RIF”), which required that the jobs of the respondents, among others, be eliminated. The financial-recovery plan projected that the BBOE’s required minimum-reserve fund would be fully funded at $17 million within two years of implementation of the plan.

On June 5,2012, a motion was presented to the BBOE to approve the financial-recovery plan; the motion failed for lack of a majority. At the BBOE’s next regular meeting, held on June 12, 2012, all the BBOE members present voted to approve the financial-recovery plan, but the financial-recovery plan as approved did not include details as to how the financial-recovery plan would be implemented.

On June 14, 2012, as a result of the BBOE’s continued failure to approve the required financial-recovery plan (including a plan for implementation), the SBOE adopted a resolution, pursuant to § 16-6B-4, Ala. Code 1975, authorizing Dr. Bice to appoint a person to provide oversight of the BBOE’s day-to-day operations and to advise and assist the BBOE with the implementation of the financial-recovery plan. This resolution further authorized Dr. Bice, in the event a financial-recovery plan, including implementation, was not approved by the BBOE at its June 26, 2012, meeting, to intervene and to assume direct control of the fiscal operation of the BBOE and to appoint a chief financial officer to manage the financial operations of the BBOE in order to restore the BBOE to a sound financial condition.

On June 26, 2012, the CEFO and the superintendent of the BBOE presented the implementation phase of the financial-recovery plan to the BBOE for its approval. However, the BBOE did not approve the financial-recovery plan. Dr. Bice then intervened and appointed Dr. Richardson as the chief financial officer for purposes of intervention, i.e., the State Intervention Chief Financial Officer.

The BBOE continued to resist the SBOE’s efforts to implement the financial-recovery plan. As a result, the SBOE, Dr. Bice, and Attorney General Luther Strange (“the State plaintiffs”) sued the BBOE and its members, in their official capacities, in the Jefferson Circuit Court on July 20, 2012, seeking declaratory and injunctive relief (“the SBOE action”). The State plaintiffs sought to determine the authority of the SBOE and Dr. Bice to control the BBOE’s financial operations. The court entered a temporary restraining order preventing the BBOE from interfering with the implementation of the financial-recovery plan; fi’om interfering with any other decision or action deemed necessary by the SBOE to ensure that schools included in the Birmingham School System opened for the academic year in a timely and orderly manner; or from interfering with Dr. Bice’s and his staffs access to offices of the BBOE and its computers and files.

Meanwhile, on July 24, 2012, Dr. Bice presided over a BBOE meeting. At this meeting, the superintendent of the BBOE requested that the members of the BBOE vote to approve the implementation of the financial-recovery plan, which included the RIF: The vote of the members of the BBOE bn the adoption of the financial-recovery plan was evenly split; Dr. Bice overrode the tie vote of the members of the BBOE and approved the implementation of the financial-recovery plan.

On August 13, 2012, the court in the SBOE action granted the SBOE’s request for an injunction. The court held that the SBOE and Dr. Bice were authorized by Alabama law to take all the actions they had taken with respect to the BBOE. On October 11, 2012, after the final judgment had been entered, the respondents filed a motion to intervene in the SBOE action, which the Jefferson Circuit Court denied.

On January 22, 2013, the respondents filed the underlying action against the petitioners, the BBOE, and certain BBOE officials (the BBOE and the BBOE officials are hereinafter referred to collectively as “the BBOE defendants”). In their complaint, the respondents sought a judgment declaring that the petitioners did not have the authority under state law to adopt and to implement the financial-recovery plan. Specifically, the respondents sought a judgment declaring that the petitioners did not have the authority to implement the RIF. Rather, the respondents alleged that the BBOE was the entity with the authority to adopt and to implement the financial-recovery plan, including the RIF, which, the respondents argued, it did not do, because its vote ended in a tie vote overridden by Dr. Bice’s action. The respondents requested that they be reinstated to their now eliminated positions with the BBOE and that they be awarded money damages in the form of backpay from the time their positions with the BBOE were eliminated as a result of the implementation of the RIF. In a separate count, the respondents alleged that their due-process rights had been violated by the elimination of their positions. The respondents cited 42 U.S.C. § 1983 and alleged:

“[The petitioners’] aforementioned conduct violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution, U.S. Const, amend. XIV, § 1, and the guaranty of due process contained in the Alabama Constitution, Ala. Const. 1901, art. I, §§ 1, 6, 13, and 22, denying [the respondents’] property rights without providing due process of law as evidenced by the failure of [the petitioners] to provide [the respondents] with proper notice of the adverse employment actions taken against them in the illegal RIF of July 24, 2012, in express violation of the Students First Act, § 16-24C-6(b)[, Ala. Code 1975].”

Under this count, the respondents requested the following relief:

“An order declaring that [the respondents], having been denied proper notice of the adverse employment actions taken against them in the illegal July 24, 2012 RIF implemented in 2012 and 2013, in violation of § 16-24C-6(b), Code of Alabama (1975), have been denied due process of law under the Constitution of Alabama ... and the Constitution of the United States, Amendment XIV.
“That [the respondents] be immediately reinstated to their pre-RIF positions, compensation, duties, work stations, reporting and supervisory channels, and all terms and conditions of their pre-RIF employment.
“That [the respondents] be awarded general compensatory damages, to include all back pay, where appropriate, and to restore any and all benefits, as required; and such other and further relief as necessary to make [the respondents] fully whole.”

On March 1,2013, the BBOE defendants filed an answer to the complaint. On March 15, 2013, the petitioners filed a motion to dismiss the complaint. On March 25, 2013, the respondents amended their complaint to add a claim alleging that the petitioners and the BBOE defendants had failed to follow certain administrative procedures in implementing the RIF.

On April 19, 2013, the petitioners filed a motion to dismiss the respondents’ amended complaint. The petitioners argued that all of the respondents’ claims were due to be dismissed as an impermissible collateral attack on the final judgment entered in the SBOE action, which declared that the SBOE had the authority to implement the RIF. The petitioners did not argue in the motion that they were entitled to immunity. The respondents filed a memorandum of law in opposition to the petitioners’ motion to dismiss their first amended complaint.

On August 24, 2014, after extensive briefing- and oral argument, the circuit court treated the petitioners’ motion to dismiss and the respondents’ response as cross-motions for a summary judgment. The circuit court entered a partial summary judgment in favor of the, petitioners on the respondents’ -declaratory-judgment claim, entered a partial summary judgment in favor of the respondents on their duerprocess claim, and dismissed the respondents’ administrative-procedure claim. In analyzing the respondents’ due-process claim, the circuit court determined that the respondents had ,a property interest under state law in their employment with the BBOE and that they were entitled to certain due-process protections under federal law. The circuit court determined that the petitioners had violated the respondents’ federal due-process rights by depriving them of their property interest without due process of law because, the circuit court concluded, the petitioners failed to comply with the procedural requirements of the Students First Act, § 16-24C-1 et seq., Ala. Code 1975 (“the SFA”). Specifically, the circuit court concluded that the SFA, a state law, required that the respondents receive notice of the fact that the implementation of the RIF would result in the termination of their employment positions with the BBOE and that the petitioners failed to give the respondents such notice. Accordingly, the circuit court concluded that the respondents’ federal due-process rights had been violated.

On September 8, 2014, the petitioners filed a motion requesting that the circuit court “reconsider” its partial summary judgment in the respondents’ favor as to the respondents’ due-process claim. It was in this motion that the petitioners first argued that they were entitled to immunity from the respondents’ claims. The petitioners alleged, among other things, that “[the respondents] are not permitted to assert a § 1983 claim for money damages against [the petitioners] in their official capacities.” The petitioners additionally alleged that the § 1983 .claim against Dr. Bice and Dr. Richardson in their individual capacities is barred by qualified immunity. Moreover, the petitioners argued that the respondents’ state-law claims are barred by State immunity and State-agent immunity. The circuit court denied the petitioners’-motion on May 13, 2015, without specifically addressing the petitioners’ immunity-based arguments.

On July 12, 2015, the respondents amended their complaint a second" time to add as plaintiffs additional former employees of the BBOE. In response, on July 13, 2015, the petitioners filed a motion to dismiss the respondents’ second amended complaint. In their motion, the petitioners raised the same immunity arguments they had raised in their “motion to reconsider,” which the circuit court had denied on May 13, 2015. "

On December 3, 2015, the circuit court denied the petitioners’ motion to dismiss the respondents’ second amended complaint. On January 13,2016, the petitioners filed this petition for a writ of mandamus requesting review of the circuit court’s denial of their motion to dismiss. The petitioners argue that they are immune from liability on the respondents’ due-process claim, which the circuit court decided in favor of the respondents in its partial summary judgment; neither the petitioners nor the respondents make .any argument concerning the circuit court’s order as to the respondents’ declaratory-judgment claim or their administrative-procedure claim.

II. Standard of Review

“‘The writ of mandamus is an extraordinary legal remedy. Ex parte Mobile Fixture & Equip. Co., 630 So.2d 358, 360 (Ala.1993). Therefore, this Court will not grant mandamus relief unless the petitioner shows: (1) a clear legal right to the order sought; (2) an imperative duty upon the trial court to perform, accompanied by its refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the Court. See Ex parte Wood, 852 So.2d 705, 708 (Ala.2002).
“Ex parte Davis, 930 So.2d 497, 499 (Ala.2005). A ‘petition for a writ of mandamus is an appropriate means for seeking review of an order denying a claim of immunity.’ Ex parte Butts, 775 So.2d 173, 176 (Ala.2000).
“ ‘In reviewing the denial of a motion to dismiss by means of a mandamus petition, we do not change our standard of review.’ Ex parte Haralson, 853 So.2d 928, 931 (Ala.2003).
“ ‘In Nance v. Matthews, 622 So.2d 297 (Ala.1993), this Court stated the standard of review applicable to a ruling on a motion to dismiss:
“ ‘ “On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [it] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [it] may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.”
“ ‘622 So.2d at 299 (citations omitted):’
“Knox v. Western World Ins. Co., 893 So.2d 321, 322 (Ala.2004).”

Ex parte Troy Univ., 961 So.2d 105, 107-08 (Ala.2006).

III. Discussion

The petitioners argue that they are entitled to the protection of immunity as to the respondents’ due-process claim. Initially, we note that there is some confusion and disagreement between the parties as to whether the respondents allege a violation of their federal or state due-process rights. In order to properly address the petitioners’ immunity arguments, we must first determine whether the respondents’ due-process claim is based on federal or state law so that we can determine whether the principles of federal immunity or state immunity apply.

The petitioners argue that the respondents’ due-process claim “seeks to vindicate an alleged violation of state law, the Students First Act.” In support of their argument, the petitioners cite the respondents’ complaint, in which the respondents alleged that they have been damaged “by the failure of [the petitioners] to provide [the respondents] with proper notice of adverse employment actions taken against them in the illegal RIF ... in violation of the Students First Act.” The petitioners also cite the circuit court’s order, which, they allege, “reinforced the notion that [the respondents’] § 1983 claim is based upon an alleged violation of the Students First Act, writing that [the circuit court] ‘most significantly ... relies on the SFA in declaring below [the respondents] were unlawfully separated from their BBOE jobs.’ ” The petitioners argue that the respondents’ due-process claim is not a § 1983 claim because the respondents seek only to vindicate a violation of state rights.

The respondents argue that their due-process claim is a § 1983 claim that seeks to vindicate an alleged violation of their federal due-process rights. The respondents state that their due-process claim, “as stated both in the complaint and in the partial summary judgment order, is a federal claim under 42 U.S.C. § 1983, to vindicate the constitutional right of due process,” and that it “is squarely based in federal law: it is a claim under 42 U.S.C. § 1983.” The respondents state that they relied on the SFA only to establish that they have a property interest in their employment with the BBOE, “[b]ut [that] once there is a property interest, then the question of what ‘process’ is ‘due’ under the United States Constitution is a matter of federal law.” They state that their “claim under 42 U.S.C. § 1983 properly established that they had a property interest in their positions pursuant to state law. Once that property right attached, however, federal due process law determines whether the employees received the process they were due.” Concerning whether federal or state principles.of immunity apply, the respondents state:

“Only federal immunity law is relevant in this review. The circuit court issued a summary judgment in favor of the employees on one claim, pursuant to 42 U.S.C. § 1983: that [the petitioners] deprived employees of property without due process (or any process at all) in violation of the Fourteenth Amendment.”

Looking solely at the respondents’ complaint and the partial-summary-judgment order, it appears to us that the respondents alleged that both their federal and state due-process rights were violated. In their complaint, as set forth above, the respondents alleged that the petitioners’ conduct violated “the Due Process Clause of the Fourteenth Amendment to the United States Constitution, U.S. Const, amend. XIV, § 1, and the guaranty of due process contained in the Alabama Constitution, Ala. Const. 1901, art. I, §§ 1, 6, 13, and 22.” The respondents also alleged that the petitioners violated the procedural requirements of the SFA. These are clearly allegations that the respondents’ federal and state due-process rights were violated. However, in their responses before this Court, the respondents unequivocally abandon any allegation they may have made in their complaint that the petitioners violated their state due-process rights. Accordingly, based on the respondents’ abandonment of their allegation that the petitioners violated their state, due-process rights, we conclude that the respondents’ due-process claim is a § 1983 claim. Therefore, only the petitioners’ immunity arguments concerning the respondents’ § 1983 claim are before us,' and we will consider only whether the petitioners are immune under federal principles of immunity. See Ex parte Madison Cty. Bd. of Educ., 1 So.3d 980, 987, 989 (Ala.2008) (immunity against a federal constitutional claim under § 1983 is not a matter of state immunity law but a matter of federal immunity law).

We turn now to the petitioners’ federal immunity arguments. First, the petitioners argue that they are entitled to immunity from the respondents’ § 1983 claim under the Eleventh Amendment: “To the extent this Court is inclined to treat [the respondent^’] claim as a claim- under § 1983, the [petitioners] are entitled to dismissal pursuant to the Eleventh Amendment to the United States Constitution.”

We first consider -whether the SBOE is entitled to Eleventh Amendment immunity from the respondents’ § 1983 claim. In Alabama State University v. Danley, 212 So.3d 112, 133 (Ala.2016), this Court stated: “ ‘ “It is clear ... that in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment. This .jurisdictional bar applies regardless of the nature of the relief sought.” ’ ” (Quoting Ex parte Retirement Sys. of Alabama, 182 So.3d 527, 537-38 (Ala.2015), quoting in turn Pennhurst State Sch. & Hosp. v. Halder-man, 465 U.S. 89, 101, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)(emphasis added).) In State Board of Education v. Mullins, 31 So.3d 91, 96 (Ala.2009), this Court stated that “[t]he [SBOE] ... [is an] agencfy] of the State. Ex parte Board of Educ., 810 So.2d 773, 776 (Ala.2001); Ex parte Craft, 727 So.2d 55, 58 (Ala.1999).” It is undisputed that the SBOE did "not consent to the respondents’ suit against it. Accordingly, the SBOE, as an agency of the State, is entitled to immunity under the Eleventh Amendment from the respondents’ § 1983 claim.

Next, we will consider whether Dr. Bice and Dr. Richardson, in their official capacities, are entitled to immunity under the Eleventh Amendment from the respondents’ § 1983 claim. As set forth above, the respondents have requested money damages in the form of backpay and injunctive relief in the form of reinstatement to their pre-RIF positions. Concerning the respondents’ request for money damages, this Court has unequivocally stated that “[c]laims. for monetary relief against State officials in their official capacities are barred by the .Eleventh Amendment.” Ex parte Retirement Sys. of Alabama, 182 So.3d at 538 (citing Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (“ ‘[W]hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.’ ” (quoting Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945)))). Accordingly, Dr. Bice and Dr. Richardson, in their official capacities, are entitled to immunity under the Eleventh Amendment from the respondents’ § 1983 claim insofar as the respondents seek money damages. However, Dr. Bice and Dr. Richardson, in their official capacities, are not entitled to immunity under the Eleventh Amendment from the respondents’ §■ -1983 claim insofar as the respondents seek injunctive relief. In Lane v. Central Alabama Community College, 772 F.3d 1349, 1351 (11th Cir. 2014), the Eleventh Circuit stated:

“Generally speaking, the Eleventh Amendment bars civil actions against state officials in their official capacity ‘when the state is the real, substantial party in interest.’ Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984). Pursuant to the exception established in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), official-capacity suits against state officials are pemiissi-ble, however,, under the Eleventh Amendment when the plaintiff seeks ‘prospective equitable relief to end continuing violations of federal law.’ ”

The Eleventh Circuit has specifically held that “requests for reinstatement fall within the scope of the Ex parte Young exception and, thus, are not barred by the Eleventh Amendment.” M. Thus, Dr. Bice and Dr. Richardson, in their official capacities, are not entitled to immunity to the extent the respondents seek prospective injunctive relief in the form of reinstatement.

Next, we must consider whether Dr. Bfce and Dr. Richardson are entitled to immunity in their individual capacities. “[T]he Eleventh Amendment does not protect state employees sued in their individual capacity for employment-related acts.” Jackson v. Georgia Dep’t of Transp., 16 F.3d 1573, 1575 (11th Cir.1994) (citing Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)). Thus, Dr. Bice and Dr. Richardson are not entitled to Eleventh Amendment immunity in their individual capacities.

However, the.petitioners argue that Dr. Bice and Dr. Richardson, in their individual capacities, are entitled to qualified immunity from the respondents’ § 1983 claim. This Court has summarized the law on qualified immunity as follows:

“ ‘[Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or 'constitutional rights of which a reasonable person would have known.’
“Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). ‘Qualified immunity is designed to allow government officials to avoid the expense and disruption of going to trial, and is not merely a defense to liability.’ Hardy v. Town of Hayneville, 50 F.Supp.2d 1176, 1189 (M.D.Ala.1999). ‘Am official is entitled to qualified immunity if he is performing discretionary functions and his actions do “ ‘not violate clearly established statutory or -constitutional rights of which a reasonable person would have known.”” Hardy, 50 F.Supp.2d at 1189 (quoting Lancaster v. Monroe County, 116 F.3d 1419, 1424 (11th Cir.1997)).”

Ex parte Alabama Dep’t of Youth Servs., 880 So.2d 393, 402 (Ala.2003). “To receive qualified immunity, the government official must first prove that he was acting within his discretionary authority. ... Once the defendants have established that they were acting within their discretionary authority, the burden shifts to the plaintiffs to show that qualified immunity is not appropriate.” Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir.2003). Here, the parties do not dispute whether Dr. Bice and Dr. Richardson were acting within their discretionary authority. Thus, we must determine whether the respondents have demonstrated that Dr. Bice’s and Dr. Richardson’s actions violated the respondents’ clearly established rights, rendering qualified immunity inappropriate.

In analyzing whether a right is clearly established, we must consider whether preexisting law at the time of the alleged acts provided fair warning to Dr. Bice and Dr. Richardson that their actions were unconstitutional. See Hope v. Pelzer, 536 U.S. 780, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (“[Qualified immunity operates ‘to ensure that before [officials] are subjected to suit, [they] are on notice their conduct is unlawful.’ ” (quoting Saucier v. Katz, 533 U.S. 194, 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001))).

“For a constitutional right to be clearly established, its contours ‘must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, see Mitchell [v. Forsyth, 472 U.S. 511,] 535, n. 12, 105 S.Ct. 2806, 86 L.Ed.2d 411 [ (1985) ]; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.’ Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).”

Hope, 536 U.S. at 739.

The United States Supreme Court noted in Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999), that the law was not clearly established where the “state of the law was ... at best undeveloped.” The issue in Wilson involved whether a reasonable police officer could have believed that bringing members of the media into a home during the execution of an arrest warrant was lawful. Id. at 615. In concluding that the law regarding such an action was not clearly established, the Court reasoned:

“Petitioners have not brought to our attention any cases of controlling authority in them jurisdiction at the time of the incident which clearly established the rule on which they seek to rely, nor have they identified a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.”

Id. at 617. Because of the undeveloped state of the law, the Court concluded: “If judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.” Id. at 618, 119 S.Ct. 1692.

The United States Court of Appeals for the Eleventh Circuit has stated that, within that circuit, “the law can be ‘clearly established’ for qualified immunity purposes only by decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the state where the case arose.” Festa v. Santa Rosa Cty. Florida, 413 Fed.App’x 182, 185 (11th Cir.2011) (not selected for publication in the Federal Reporter) (quoting Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 827 n. 4 (11th Cir.1997)).

The respondents rely solely upon Collins v. Wolfson, 498 F.2d 1100 (5th Cir.1974), to support their argument that the principle that an employee with a property interest in his employment is entitled to notice and a hearing,’ even in an RIF situation, is clearly established. In Collins, one employee, with a “continuing contract” akin to tenure, alleged that his “vested property interest was not summarily defeasible by the Board’s couching the termination as a ‘reduction in force’ rather than as a discharge.” Id. at 1102. However, the United States Court of Appeals for the Fifth Circuit narrowly held only that the employee “should have been permitted by the court to establish entitlement to such a hearing, the purpose of which would be to assure that his position was in fact ‘discontinued’ within the meaning of the contract and, if he was instead the victim of a ‘reduction in force,’ that the trustees made their decision pursuant to their previously announced criteria.” Id. at 1104 (emphasis added). Because Collins held merely that the employee had a right to establish entitlement to a hearing to determine whether his position had been discontinued within the meaning of his contract or pursuant to an RIF, Collins does not clearly establish a right.to a hearing before termination of employment pursuant to a bona fíde RIF.. This is the only case the respondents cite to demonstrate that they had a clearly established right to a hearing before having their positions terminated pursuant to an RIF.

The petitioners cite several cases from other jurisdictions that they allege demonstrate that employees with a property interest in their employment do not have a clearly established right to notice and a hearing when their employment is terminated pursuant to a bona fide RIF. See Drivers, Chauffeurs & Helpers Local 639 v. District of Columbia Pub. Sch. (No. 02-7082, September 17, 2003) (D.C.Cir.2008) (not published in F. Supp.) (“[T]he Due Process Clause does not require individualized pre-termination hearings when discharges are occasioned by genuine redue-tions-in-force ....”); Duffy v. Sarault, 892 F.2d 139, 147 (1st Cir.1989) (“Where a reorganization or other cost-cutting measure results in dismissal of an employee no hearing is due.”); Misek v. City of Chicago, 783 F.2d 98, 101 (7th Cir.1986) (“Of course, if defendants on remand could show that plaintiffs were discharged pursuant to a reorganization in fact, plaintiffs would not be entitled to relief.”); and Franks v. Magnolia Hosp., 888 F.Supp. 1310, 1313 (N.D.Miss.1995), aff'd, 77 F.3d 478 (5th Cir.1996) (“[AJssuming arguendo that the plaintiff had a property interest in employment, a due process hearing is not required when the termination is the result of a bona fíde reduction in force. It is clear to the court that the termination of 71 employees is a bona fide reduction,”).

In Duffy, one of the cases relied upon by the petitioners to show that there is no clearly established right to notice and a hearing when employment is terminated as a result of an RIF, the United States Court of Appeals for the First Circuit held that “[wjhere a reorganization or other cost-cutting measure results in dismissal of an employee no hearing is due.” 892 F.2d at 147 (citing Hartman v. City of Providence, 636 F.Supp. 1395, 1410 (D.R.I.1986) (“Numerous federal and state courts have recognized that an employee who loses his or her job ... is not entitled to a hearing .., when- the position is abolished pursuant to a bona fide government reorganization or kindred cost-cutting measure.”)). In Duffy, the trial court found that the plaintiffs had a property interest in their jobs; however, the trial court also found that the “reorganization exception” to due-process hearings applied because the reorganization was not pretextual but was a valid reorganization. Id. The First Circuit agreed and held: “We find that because the appellants’ jobs were lost subject to a valid reorganization they were not entitled to due process prior to that reorganization taking effect.” Id.

The petitioners also cite Ex parte Moulton, 116 So.3d 1119 (Ala.2013), in which this Court cited Duffy favorably. Although not dispositive to this Court’s holding in Moulton—that the employee was not entitled to a due-process hearing under the terms of the staff-employee handbook— this Court did cite Duffy in a footnote in the context of its due-process discussion for the proposition that “where reorganization or cost-saving measures result in the termination of a public employee’s employment as a result of the elimination of the employee’s position, no hearing is required to satisfy due process.” Moulton, 116 So.3d at 1135 n. 6 (citing Duffy, 892 F.2d at 147).

In addition to the cases cited by the petitioners, other courts have suggested that no due-process violation occurs.when an employee is eliminated pursuant to a legitimate governmental reorganization. See Schulz v. Green Cty., Wisconsin, 645 F.3d 949, 952 (7th Cir.2011) (“When a government eliminates an employee’s position in connection with a ‘legitimate governmental reorganization’ ... the employee is not entitled to notice or a hearing.”); West v. Grand Cty., 967 F.2d 362, 367 (10th Cir.1992) (“The fact that [the county] labeled [the employee’s] discharge a ‘reduction in force’-does not .affect her entitlement to a pretermination hearing when she is asserting that the reduction in force was a sham aimed particularly at her.” (emphasis added)); and Edmiston v. Idaho State Liquor Div. (No. 1:11-CV-395-BLW, May 7, 2014) (D. Idaho 2014) (not selected for publication in F.Supp.) (“If she was fired for reasons connected to her performance rather than as part of a system-wide reduction-in-force, there is no dispute that she was entitled to certain due process rights that she did not receive.” (emphasis added)). In deciding to recognize a “reorganization, exception,” the United States District Court for the District of Rhode Island in Hartman, 636 F.Supp. at 1415, reasoned:

“[T]he ‘hearing’ to which [the plaintiff] belatedly claims an entitlement would be at best an utter waste of time, at worst a complete fiasco. There would be no bill of particulars or specification of charges to -be answered; rather, the dialogue would center around what revenues were available to government and how the City should best deploy them. Unless the trumpet is sounded with far more clarity than is here the case, courts ought not to march gratuitously into such a political thicket. Refusing to recognize a reorganization exception to § 904 would bring about, in the Trembley [v. City of Central Falls] phrase, ‘absurd or unreasonable results.’ 480 A.2d [1359] at 1363 [ (R.I.1984) ].' This court will not buy such tawdry goods.”

Thus, several courts confronting the question of requisite due process in the context of an RIF have held that no due process is required in that situation.

Neither the United States Supreme Court, nor the Eleventh Circuit, nor this Court has expressly decided the issue (though this Court has cited Duffy; which found no right to due process in the context of an RIF, favorably). Numerous courts that have decided the issue have come out against a right to procedural due process in the context of a bona fide RIF. Due process has been required only in the context of an RIF where the employee with a property interest alleged that the RIF was a sham or pretextual. The respondents here have not so alleged. Thus, the right to such process is not sufficiently established to relieve Dr.- Bice and Dr. Richardson, in their individual. capacities, of immunity. Accordingly, Dr. Bice and Dr. Richardson, in their individual capacities, are entitled to qualified immunity.

IV. Conclusion

The SBOE is entitled to immunity under the Eleventh Amendment from the respondents’ § 1983 claim. Dr. Bice and Dr. Richardson, in their official capacities, are entitled to immunity from liability under the Eleventh Amendment insofar as the respondents seek money damages. Dr. Bice and Dr. Richardson, in their official capacities, are not, however, entitled to immunity from liability under the Eleventh Amendment insofar as the respondents seek in-junctive relief in the form of reinstatement. Dr. Bice and Dr. Richardson, in their individual capacities, are entitled to qualified immunity as to the respondents’ § 1983 claim. Therefore, we grant the petition in part and issue a writ directing the circuit court to vacate its December 3, 2014, order denying the petitioners’ motion to dismiss and to enter an order dismissing the respondents’ § 1983 claim against the SBOE, dismissing the respondents’ § 1983 claim against Dr. Bice and Dr. Richardson, in their official capacities, insofar as the respondents seek money damages, and dismissing the respondents’ § 1983 claim against Dr. Bice and Dr. Richardson, in their individual capacities; we deny the petition in part as to the petitioners’ argument that Dr. Bice -and Dr. Richardson, in their official capacities, are entitled to immunity from liability under the Eleventh Amendment from the respondents’ request for injunctive relief in the form of reinstatement.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

Stuart, Main, and Wise, JJ., concur.

Bolin, Murdock, Shaw, and Bryan, JJ., concur in the result.

MURDOCK, Justice

(concurring in the result).

I agree in the main with the analysis set out in the main opinion, and I concur in the result reached. I write separately to comment on two aspects of that opinion.

First, as to footnote 7,- 219 So.3d at 614, I have no objection to the respondents’ reliance on Ex parte Jones, 147 So.3d 415 (Ala.2013), as authority regarding the timeliness of a mandamus petition raising immunity concerns. Nonetheless, I have no objection to the timing of the petition in light of the subject-matter-jurisdiction nature of the issué presented.

Second, I see no need, in order to reach the result that is reached, to adopt the statement quoted by the main opinion from Festa v. Santa Rosa County, Florida, 413 Fed.App’x 182, 185 (11th Cir.2011) (an opinion not selected for publication in the Federal Reporter, 219 So.3d at 616), nor the negative implication that, if any of the listed courts has decided an issue,' the law regarding that issue is necessarily “clearly established” for purposes of determining qualified immunity.

      . Thomas B. Bice is no longer superintendent of education. See Rule 43(b), Ala. R. App. P., providing that, when a public officer is a party to an appellate proceeding and ceases to hold office, '-‘the public officer’s successor is automatically substituted as a party.”

      , The respondents refer to themselves as ‘'nonprobationary employees” and assert that they' have a property interest in their- former. employment positions with the BBOE, The petitioners dispute this fact.

      . Section 16-6B-4 states:
      "[I]f a local board of education is determined to have submitted fiscally unsound financial reports, the State Department of Education shall provide assistance and advice. If during the assistance the State Superintendent of Education determines that the local board of education is in an unsound fiscal position, a person or persons shall be appointed by the State Superintendent of Education to advise the day-to-day financial operations of the local board of education. If after a reasonable period of time the State Superintendent of Education determines that the local board of education is still in an unsound fiscal condition, a request shall be made to the [SBOE] for the direct control of the fiscal operation of the local board of education. If the request is granted, the State Superintendent of Education shall present to the [SBOE] a proposal for the implementation of management controls necessary to restore the local school system to a sound financial condition. Upon approval by the [SBOE], the State Superintendent of Education shall appoint an individual to be chief financial officer to manage the fiscal operation of the local board of education, until such time as the fiscal condition of the system is restored. The chief financial officer shall perform his or her duties in accordance with rules and regulations established by the [SBOE] in concert with applicable Alabama law. Any person appointed by the State Superintendent of Education to serve as chief financial officer to manage the fiscal operation of a local board of education shall be required to give bond with a surety company authorized to do business in Alabama and shall not be required to receive approval of the local superintendent to expend monies. The chief financial officer shall serve at the pleasure and under the direction of the State Superintendent of Education. The State Superintendent of Education, directly or indirectly through the chief financial officer, may direct or approve such actions as may in his or her judgment be necessary to: (1) Prevent further deterioration in the financial condition of the local board; (2) restore the local board of education to financial stability; and (3) enforce compliance with statutory, regulatory, or other binding legal standards or requirements relating to the fiscal operation of the local board of education.”

      . The BBOE defendants are not parties to this mandamus petition.

      . ' The respondents consist of two groups of former employees. The two groups filed sepa- , rate responses to .this petition for a writ of mandamus. The first group consists of the original plaintiffs and the second group consists of the additional former employees of the BBOE. Because we treat both groups of plaintiffs as respondents, we do not differentiate those responses in our discussion, except in note 6, infra.
      Roderick Jackson, a former employee of the BBOE whose employment position was eliminated by the RIF, had filed a motion to intervene in this action, which the circuit court granted. Further, the respondents had filed a motion to add as necessary parties all those former employees of the BBOE whose employment positions were eliminated or otherwise adversely affected by the RIF, which the circuit court granted. The respondents’ second amended complaint sought to add these parties as plaintiffs. As Used in the rest of this opinion, the term "the respondents” will include these parties as well.

      . See the original plaintiffs’ response, at pp. 15 (alleging the respondents' due-process claim "is squarely based in federal law: it is a claim under 42 U.S.C. § 1983”), 18 (the respondents state that their due-process claim, "as stated both in the complaint and in the partial-summary-judgment order, is a federal claim under 42 U.S.C. § 1983, to vindicate the constitutional right of due process”), and 19 ("the question of what ‘process' is ‘due’ under the United States Constitution is a matter of federal law”); and the additional plaintiffs’ response, at pp. 4-5 ("Only federal immunity law is relevant in this review.”) and 6 ("The [respondents’] claim under 42 U.S.C. § 1983 properly established that they had a property interest in their positions pursuant to state law. Once that property right attached, however, federal due process law determines whether the employees received the process they were due.’’).

      . We note that the respondents argue that the ; petitioners’ petition is untimely. However, the respondents rely solely on Ex parte Jones, 147 So.3d 415 (Ala.2013), to demonstrate the alleged untimeliness of the petition. In Jones, •this Court determined that a mandamus petition raising solely the issue of State-agent immunity was untimely. Jones did not consider the timeliness of a mandamus petition raising federal immunity arguments. The respondents have not cited any authority to support the conclusion that the petition is untimely as to the federal immunity issues, which are the only immunity issues before us in this case.

      . The respondents concede that they cannot recover money damages against Dr. Bice and Dr. Richardson in their official capacities.

      . The United States Courts of Appeals for the Second, Fourth, and Sixth Circuits have expressly declined to reach the question. See Connolly v. City of Rutland, Vermont, 487 Fed.App'x 666, 666-67 (2d Cir.2012)(not selected for publication in the Federal Reporter)(noting that, because the employee was afforded a pre-termination hearing, the court need not decide whether, also to adopt an exception to normal due-process-hearing requirements where dismissal is based on a reorganization or an RIF); Lehman v. Sturza, 28 F.3d 1210 n. 2 (4th Cir.1994) (table) (unpublished disposition) ("Because we find no property interest here, we need not reach defendants' alternative arguments that the Ordinance was merely a guide for management and that an RIF layoff does not require due process protections.”); and Upshaw v. Metropolitan Nashville Airport Auth., 207 Fed.App’x 516, 519 (6th Cir.2006) (not selected for publication in the Federal Reporter)("This case, however, does not require us to consider whether a general ’ reorganization exception permits [the employee's] termination without due process; the nature of the specific property right that [the employee] enjoyed in his position did not extend to protection from elimination of his position in the context of a reorganization.”), No federal circuit court has explicitly recognized a right to.a hearing in the context of a bona fide RIF, only when the RIF is alleged to be a sham. See West v. Grand Cty., 967 F.2d 362, 367 (10th Cir. 1992); Misek v. City of Chicago, 783 F.2d 101 (7th Cir.1986).


source: Caselaw Access Project

author: MURDOCK, Justice.

license: Public Domain

text:
    EX PARTE ARVEST BANK (In re: Iberiabank f/k/a Capitalsouth Bank v. Raymond E. Niland)
    1141421
    Supreme Court of Alabama.
    Sept. 16, 2016

      Jesse P. Evans III, Michael B. Odom, and Martin W. Evans of Rumberger, Kirk & Caldwell, P.C., Birmingham; and Thomas J. Skinner IV, Birmingham, for petitioner.
    Burt W. Newsome of Newsome Law, L.L.C., Birmingham; and G. Houston Howard II, Orange Beach, for respondent.
   MURDOCK, Justice.

Arvest Bank (“Arvest”) petitions this Court for a writ of mandamus directing the Autauga Circuit Court to vacate its order denying Arvest’s motion to quash a writ of execution obtained by Iberiabank f/k/a Capitalsouth Bank (“Iberia”) against real property owned by Evelyn L. Niland (“Evelyn”) and to issue an order granting the motion. We treat the petition as an appeal, and we reverse and remand.

I. Facts

The facts in this case are undisputed and were recounted in the trial court’s final order of September 7, 2015:

“1. On July 8, 2004, Thomas M. Karrh, II, transferred the property that Iberia seeks to sell (‘the property’) to Raymond E. Niland [ (‘Raymond’) ] and Evelyn L. Niland as joint tenants with right of survivorship.
“2. On August 8, 2007, the Nilands quit-claimed the property to [Evelyn], removing [Raymond’s] name from the title.
“3. In October of 2008, [Raymond] stopped paying an existing indebtedness to Iberia.[]
“4. On March 26, 2009, Iberia obtained a judgment against [Raymond] for $124,589.56.
“5. On April 9, 2009, Iberia filed its judgment for record in the probate office of Autauga County, creating a lien on all of [Raymond’s] property in the county.
“6. On September 11, 2012, [Evelyn] transferred the property back to herself and [Raymond], attempting to create a joint tenancy with right of survivorship. The Nilands executed á mortgage to Arvest Bank the same day.'
“7. [Raymond] died on December 5, 2012, less than, three months after title was returned to his name.”

In January 2015, Iberia secured.a writ of execution against the property, which was amended on June 15, 2015, to include postjudgment interest. On August 10, 2015, Arvest, as the mortgage holder, moved to intervene and to quash the scheduled sheriffs sale .of the property. The trial court granted the motion to intervene, stayed the sale pending further argument, and set a hearing for August 28, 2015. On August 26, 2015, Iberia filed an opposition to the motion to quash-the sheriffs sale.

■ On September 7, 2015, the trial court denied the motion to quash the sheriffs sale and vacated its previous order staying the sheriffs sale. On October 1, 2015, Ar-vest filed this petition for a writ of mandamus, after which the trial court received a supersedeas bond and again stayed the sheriffs sale.

II. Standard of Review

For reasons that will be explained in the analysis below, we believe this mandamus petition should be treated as an appeal. Thus, we do not apply the standard of review ordinarily associated with a mandamus petition. The trial court in this case applied the law to undisputed facts. Our review on appeal therefore is de novo.

‘“When this Court must determine if the trial court misapplied the law to the undisputed facts, the standard of review is de novo, and no presumption of correctness is given the decision of the trial court. State Dep’t of Revenue v. Garner, 812 So.2d 380, 382 (Ala.Civ.App.2001); see also Ex parte Graham, 702 So.2d 1215 (Ala.1997).’ ”

American Res. Ins. Co. v. H & H Stephens Constr., Inc., 939 So.2d 868, 873 (Ala.2006) (quoting Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 516-17 (Ala.2003)).

III. Analysis •

A. Iberia’s Motions to Dismiss

. Iberia has filed two motions to dismiss Arvest’s petition. In its first motion, Iberia contends that this Court has never formally determined that a ruling on a motion to quash an execution is reviewable by a petition for a writ of mandamus. Iberia cites early cases from this Court stating that a motion to quash an execution was reviewable by a writ of error, the predecessor to an appeal. See, e.g., Howard v. Kennedy’s Ex’rs, 4 Ala. 592 (1843) (reviewing an order refusing to set- aside a judgment and execution in ejectment by writ of error); Creighton v. Denly, Minor 250, 250 (Ala. 1824) (reversing by writ of error a trial court’s denial of a motion to quash a writ of execution). “[T]he Code of .1852 abolished the writ of error as the method of bringing civil cases to [the supreme] court for review, and ... established appeal as the remedy.” Theo. Poull & Co. v. Foy-Hays Constr. Co., 159 Ala. 453, 458, 48 So. 785, 785 (1909). Consequently, Iberia argues, “the court has since reviewed rulings on motions to quash by appeal.”

In this regard, Iberia’s position is well taken. There are ample examples of this Court reviewing a motion to quash an execution by way of an appeal. Here, Ar-vest seeks review of a final judgment; its petition to this Court is properly .treated as an appeal. See generally Kirksey v. Johnson, 166 So.3d 633, 643 (Ala.2014) (noting that “[t]his Court has treated a notice of appeal as a petition for a writ of mandamus ,.. and, conversely, treated a petition for a writ of mandamus as a notice of appeal”).

In its second motion to dismiss Ar-vest’s mandamus petition, Iberia contends that the petition is untimely because it was not filed within 14 days of the date of the trial court’s order it seeks to have reviewed. Iberia reasons that Arvest’s mandamus petition is actually an appeal from an interlocutory order under Rule 4(a)(1)(A), Ala. R. App. P. Iberia contends that Arvest seeks review of an order dissolving an injunction because the trial court’s September 7, 2015, order vacated a stay of the sheriffs sale that it had ordered on August 11, 2015. Specifically, Iberia contends that “[t]he ‘stay' order dated August 11,- 2015, was an ‘injunction’ because it ‘prevented] an action’: namely, the Sheriffs Sale.” It further argues that “[t]he order dated September 7, 2015— that Arvest contests—was an ‘order dissolving an injunction’ because it dissolved the injunction issued on August 11, 2015, which prevented the Sheriffs Sale.”

There are several problends with Iberia’s argument. To begin with, it contradicts the trial court’s view of its September" 7, 2015, order. In that order, the trial court stated: “There are no other issues before the court; this is a final order disposing of all parties and issues.” (Emphasis added.) Indeed, Iberia does not point to -anything that remains for the trial court to adjudicate in this matter, and nothing presents itself from the materials before us. The trial court’s order cleared the way for the sheriffs sale of the property to proceed. There were no other issues before the trial court. Given that the September 7, 2015, order was a final order, Arvest’s submission to this Court could not be considered an interlocutory appeal.

Moreover, a review of the procedural history of this case shows that Iberia misconstrues what Arvest seeks to have reviewed by this Court. Iberia, initially secured its writ of execution on January 26, 2015. On June .12, 2015, it amended the writ to include postjudgment interest. Ar-vest filed a motion to intervene on August 10, 2015. On August 11, 2015, the trial court granted Arvest’s motion to intervene and entered an order stating that “the Sheriffs Sale scheduled for August 17, 2015 is stayed pending further Order” of the court. On September 7, 2015, the trial court entered its order denying Arvest’s motion to quash execution of the sheriffs sale. Arvest filed its petition for a writ of mandamus on October 1, 2015.

Arvest’s motion to quash was not a, motion requesting an injunction but, rather, a request that the trial court nullify the writ of.execution of Iberia’s judgment. Arvest was not seeking a delay; it was seeking a nullification. The stay the trial court imposed was solely for the sake of giving the parties time to prepare, and the trial court time to hear, arguments concerning Ar-vest’s motion to quash. Merely because the trial court’s September 7, 2015, order had the effect of dissolving that stay does not mean that Arvest is seeking review in this Court of the dissolution. Clearly, Arvest is seeking review of the denial of the motion to quash the execution of the judgment. Therefore, Arvest is not seeking review of an order dissolving an injunction under Rule 4(a)(1)(A), Ala. R. App. P.

Based on the foregoing, Iberia’s motions to dismiss Arvest’s petition are denied. Review by appeal is appropriate in this case. Arvest filed its petition within the 42-day period for filing an appeal under Rule 4(a)(1), Ala. R. App. P., and provided an appropriate supersedeas bond;

B. Review of the Trial Court’s Judgment

Arvest in essence argues that the trial court erred in declining to grant its motion to quash Iberia’s writ of execution because, it says, the trial court misunderstood the effect Raymond’s death had on Iberia’s judgment hen in the context of a joint tenancy with a right of survivorship. Arvest contends that Iberia’s claim was extinguished when Raymond died and Evelyn assumed sole ownership of the property. Iberia offers various arguments in response to this contention, some of which mirror the trial court’s reasoning. For the reasons explained below, we believe that Arvest’s argument reflects an accurate understanding of the law.

The trial court provided the following reasons in its September 7, 2015, order for why Iberia could execute its judgment lien on Evelyn’s property:

“1. Iberia’s judgment lien attached to Mr. Niland’s interest in ‘the property simultaneously with Mrs. Niland’s conveyance to him on September 11, 2012.
“2. Iberia’s judgment lien therefore takes priority over, or primes, the sur-vivorship feature of the deed, if it is effective. It is unnecessary for the court to decide whether the conveyance of September 11, 2012, was effective to create a joint tenancy with right of surviv-orship. Mr. Niland owned an undivided, one-half interest in the property at his death.
“3. If the deed created a survivorship estate, then when Mr. Niland died on December 5, 2012, his one-half interest in the property ‘passfed] to the surviving joint tenant,’ Mrs. Niland, subject to Iberia’s lién. Ala. Code § 35-4-7 (1975). If the deed did not create a survivorship estate, then Mr. Niland’s one-half interest in the property passed to his estate subject to Iberia’s lien.
“4. Section 6-9-93[, Ala. Code 1975,] preserves Iberia’s right to execute ‘against any property on which the judgment was a lien at the time of the death of the defendant [Mr. Niland] ... in the same manner ... as if the defendant were living.’ Consequently, Iberia may now execute on Mr. Niland’s one-half interest in the property.”

■ The first problem with the trial court’s reasoning is that it is absolutely necessary to determine whether Raymond and Evelyn in fact created a joint tenancy with right of survivorship in the conveyance of September 11, 2012, in order to decide whether Iberia’s judgment lien is attached to the property. This Court observed in Johnson v. Keener, 425 So.2d 1108, 1109 (Ala.1983);

“Where a conveyance provides for concurrent ownership with the survivor to receive the fee, analysis of the surviv- or’s interest must begin with determining whether the grantees took as tenants in common or as joint tenants. See Durant v. Hamrick, 409 So.2d 731, 738 (Ala.1981). If they took as tenants in common, then the estate created is characterized as a tenancy in common with indestructible cross-contingent remainders in fee to the survivor.”

In contrast,

“[a]t common law a joint tenancy was severed by any act which destroyed any of the four unities of time, title, interest and possession which were required for a joint tenancy to exist. Nunn [v. Keith, 289 Ala. 518, 268 So.2d 792 (1972),] held ... that the joint tenancy estate is destructible as at common law.
“At common law, one way in which the joint tenancy could be severed was by the death of one of the joint tenants. Of course, this normally vested the entire estate in the survivor.”

Kempaner v. Thompson, 394 So.2d 918, 921 (Ala.1981).

In other words, if the Nilands created a tenancy in common, then upon Raymond’s death a one-half interest in the property would pass through his estate, and Evelyn would own the other half of the property. If they created a joint tenancy with a right of survivorship, then upon Raymond’s death Evelyn owned the entire property in fee. See, e.g., Porter v. Porter, 472 So.2d 630, 632 (Ala.1985) (observing that “[t]he major distinction between a tenancy in eommon and a joint tenancy is that the intérest held by tenants in common is de-visable and descendible, whereas the interest held by joint tenants passes automatically to the last survivor”); Fitts v. Stokes, 841 So.2d 229, 231 (Ala.2002) (“If the joint tenancy was not extinguished, Betty Stokes owned the entire interest in the property upon the death of Richard Fitts by virtue of her right of survivorship. If the divorce judgment extinguished the joint tenancy, both Wanda Fitts- [Richard Fitts’s second wife] and Betty Stokes [Richard .Fitts’s first wife] would have a one-half interest in the property as tenants in common.”).-

Section 35-4-7, Ala. Code 1975, provides:

“When one joint tenant dies before, the severance, his interest does not survive .to the other joint tenants but descends and vests as if his interest had been severed and ascertained; provided, that in the event it is stated in the instrument creating such tenancy that such tenancy is with right of survivor-ship or other words used therein showing such intention, then, upon the death of one joint tenant, his interest shall pass to the surviving joint tenant or tenants according to the intent of such instrument. This shall include those instruments of conveyance in which the grantor conveys to himself and one or inore other persons and in which instruments it clearly appears that the intent is to create such a survivorship between joint tenants as is herein contemplated.”

(Emphasis added.)

This Court has stated (referring to § 19, Title 47, Code of Alabama 1940, the identical predecessor Code provision of § 35^4-7) that this section “recognizes joint tenancy, with right of survivorship in realty and personalty. The statute requires intent of survivorship expressed in the instrument of conveyance, and eliminates common law unity of time. Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972).” Germaine v. Delaine, 294 Ala. 443, 445, 318 So.2d 681, 682 (1975),

There is no dispute that the Ni-lands met the requirement in § 35-4-7 of clear intent to create a right of survivor-ship. The warranty deed by which Evelyn conveyed the property to herself and Raymond was titled “Warranty Deed Jointly for Life with Remainder to Survivor,” and the text of the deed stated that Evelyn conveyed the property to Evelyn and Raymond “for and during their joint lives,-and upon the death of either of them, then to the survivor of them in fee simple, together with every contingent remainder and right of reversion.”

Iberia does dispute that Raymond and Evelyn met the common-láw requirements of unity of interest and title. Iberia contends that its judgment lien attached to Raymond’s interest in the property the moment the property was transferred into his name by the warranty deed. Iberia argues that, “[a]s a result, there was never a unity between [Evelyn’s] ‘title’ or ‘interest’ and [Rhymond’s] ‘title’ or ‘interest.’ [Raymond’s] title was encumbered by Iberia’s lien, but [Evelyn’s] title was not. [Evelyn’s] title was ‘good,’ but [Raymond’s] title was ‘bad.’ ”

Iberia misunderstands the concepts of unity of interest and unity of title in the context of a joint tenancy.

“Unity of title meant that all must acquire title by -the same deed or will or by a joint adverse possession. Unity of interest meant that the joint tenants must have identical interests both as to , the share of the common property and as to the period of duration of the interest of each. One could not take as a life tenant and the other in fee or in fee tail; one could not have a one-fourth interest and the other three-fourths.”

2 American Law of Property § 6.1, 5-6 (A. James Cásner ed., 1952) (footnotes omitted). As .for unity of title, there is no question that Raymond and Evelyn acquired title by the same deed. As for unity of interest, if the September 11, 2012, deed was effective at all, it was effective in accordance with its terms, thereby vesting in both Raymond and Evelyn an estate in fee simple held by joint tenancy. The fact that, upon its conveyance, Raymond’s interest in the property became encumbered by a lien did not affect the unity of title or interest.

“[T]he judgment lien does not invest the [creditor] with title, hence [the creditor] has no estate in the land and is not a joint owner, and his judgment only attaches to the undivided interest of [the judgment debtor], which is subject to sale under execution issued in the name of [the judgment creditor], or the lien may be enforced in equity.”

Hargett v. Hovater, 244 Ala. 646, 648, 15 So.2d 276, 278 (1943). In other words, the judgment lien does not alter or diminish the intrinsic nature of the interest in the land held by the debtor; it does not operate to make the "debtor’s interest in the land of a different nature than that of the cotenant. It therefore does not change the “unity of interest” of the joint tenants.

Because the warranty deed conveying the property to Raymond and Evelyn contained a clear expression of intent to create a joint tenancy with a right of survivor-ship that fulfilled the unities of interest, title, and possession, Evelyn and Raymond created a joint tenancy with a right of survivorship.

Iberia is correct, and Arvest concedes, that because the judgment was recorded, the-lien attached to Raymond’s interest in the property upon.its conveyance to him in September 2012. See, e.g., W.T. Rawleigh Co. v. Patterson, 239 Ala. 309, 311-12, 195 So. 729, 730 (1940) (stating that “[t]he statutory judgment lien attaches to property of the debtor subject to levy and sale, acquired after the registration of the judgment’’); Shrout v. Seale, 287 Ala. 215, 217, 250 So.2d 592, 594 (1971) (observing that “[o]n the recording of the judgment certificate, the judgment lien attached to the life estate of Farmer Seale”).

But in order for the judgment lien to attach to Raymond’s property interest, Raymond must' first have or receive a property interest. Here, the interest Raymond received—the only interest he received pursuant to the September 11, 2012, deed—was a specific one, i.e., a joint tenancy with right of survivorship. The nature and limitations of this interest were first defined- by the deed conveying- that interest to him; the recorded judgment could effect! a lien only as to that -interest. The conveyance to Raymond—such as- it is— must come before any lien attaches to that interest.

This Court has noted:

“Recording a judgment is not the same as execution on a judgment. The filing of the judgment ... only creates a lien in favor , of the judgment creditor and .although this filing can preserve assets for the creditor, in the event an execution later occurs, filing has no other interlocking aspects with execution on the judgment.”

Kiker v. National Structures, Inc., 342 So.2d 746, 748 (Ala.1977). In other words, as is implicit from the passage from Har-gett quoted above, recording a judgment lien in itself does not sever a joint tenancy. Execution on a judgment severs a joint tenancy—but not the mere recording of a lieh. See 48A C.J.S. Joint Tenancy § 53 (2014) (stating that “[a] levy on and sale of a joint tenant’s interest pursuant to a judgment against him or her terminates the joint tenancy”).

American Jurisprudence puts it this way:

“The mere docketing of a judgment against a joint tenant,- even though a lien results from it, does not result in a severance of a joint estate. A judgment lien against the interest of a joint tenant is not, of itself, sufficient to operate as a severance of the joint tenancy, since if the judgment debtor should die prior to execution on, sale of, or expiration of the period of redemption after sale of the property subject to the lien, the surviving tenant becomes the sole owner of the property, free from any lien by reason of the judgment.”

20 Am. Jur. 2d Cotenancy and Joint Ownership § 30 (2015) (footnotes omitted; emphasis added). See John W. Fisher II, Creditors of a Joint Tenant: Is There a Lien After Death? 99 W. Va. L. Rev. 637, 641 (1997) (explaining that, at common law, “it was generally recognized that the recovery of a judgment, without the execution thereon, did not sever survivorship”). See also Albright v. Creel, 236 Ala. 286, 289, 182 So. 10, 13 (1938) (opinion on rehearing) (noting that “the judgment, execution, and levy on the interest of Oscar Greathouse was evidence of a severance of the joint tenancy between Oscar and his mother”).

In the words of the Hargett Court, the “judgment only attaches to the undivided interest of [the judgment debtor],” whatever that interest may be. 244 Ala. at 648, 15 So.2d at 278.

“The lien of a judgment attaches to the precise interest or estate which the judgment debtor has actually and effectively in the property, and only to such interest.
“... Stated another way, a judgment creditor cannot acquire more property rights in a property than those already held by the judgment debtor.”

50 C.J.S. Judgments § 787 (2009).

Iberia could have a lien only against whatever property Raymond held. Thus, we examine closer the “precise interest” Raymond held as a result of the September 11, 2012, conveyance.

“An estate in joint tenancy is one held by two or more persons jointly, with equal rights to share in its enjoyment during their lives, and having as its distinguishing feature the right of survivor-ship. Because of this right of survivor-ship, upon the death of a joint tenant, the entire estate goes to the survivor or, in the case of more than two joint tenants, to the survivors, and so on to the last survivor. The estate passes free and exempt from all charges made by the deceased cotenant or cotenants.”

20 Am. Jur. 2d Cotenancy and Joint Ownership § 4 (2015) (footnotes omitted). “ ‘[T]he right of survivorship ... is the sine qua non of joint tenancy.’ ” Watford v. Hale, 410 So. 2d 885, 886 (Ala.1982) (quoting Mann v. Bradley, 188 Colo. 392, 395, 535 P.2d 213, 215 (1975)). “The principal practical aspect of a joint tenancy consists in the fact that on the death of one of the joint tenants, no severance of his interest having theretofore occurred, the exclusive title inures to the surviving joint tenant or tenants.” Annot., What Acts by One or More Joint Tenants Will Sever or Terminate the Tenancy? 64 A.L.R.2d 918, 922 (1959).

In this case, it is apparent that no severance of the joint tenancy occurred during Raymond’s lifetime. The joint mortgage executed by Evelyn and Raymond did not effect a severance. See 48A C.J.S. Joint Tenancy § 2 (2014) (explaining that “[a] mortgage to two or more persons as security for a single debt due to them jointly may be also held in joint tenancy”). More important in terms of the present issue, as we have seen from the above-quoted authorities, the judgment lien did not sever the joint tenancy because Iberia did not file an execution on the judgment during Raymond’s lifetime.

Because no severance of the tenancy occurred until Raymond’s death, the entire estate in the property vested in Evelyn at Raymond’s death because Raymond’s interest ceased at that time. The judgment lien did not attach to Evelyn’s interest because she assumed sole ownership of the property by virtue of the deed; Raymond’s interest did not pass to her. Because a joint tenant’s property interest ceases at death, and because Iberia could hold only the same interest in the property that Raymond possessed, it follows that Iberia’s claim on Raymond’s property interest was extinguished when Raymond died. Indeed, in Fretwell v. Fretwell, 283 Ala. 424, 426, 218 So.2d 138, 140 (1969), this Court noted the idea that “a surviving joint tenant becomes the absolute owner of the property held in joint tenancy upon the death of the cotenant, free of the claims of the heirs, because the survivor does not acquire title through the deceased but by virtue of the deed.” (Emphasis added.)

The rule governing this case is one with ancient roots: “So it is if one joint-tenant acknowledge a recognizance or a statute, or suffereth a judgment in an action of debt, ... and dieth before execution had, it shall not be executed afterwards. But if execution be sued in the life of the [cogni-zor], it shall bind the survivor.” 1 Sir Edward Coke, Systematic Arrangement of Lord Coke’s First Institute of the Laws of England 582 (1836).

“In consequence of the right of surviv-orship among joint-tenants, all charges made by a joint-tenant on the estate determine by his death, and do not affect the survivor; for it is a maxim of law that jus accrescendi proefertur oneribus [The right of survivorship is preferred to encumbrances]. ... But if the grantor of the charge survives, of course, it is good. ... So, if one joint-tenant suffers a judgment in an action of debt to be entered up against him, and dies before execution had, it will not be executed afterwards; but if execution be sued in the life of the cognizor, it will bind the survivor. ...”

1 William Blackstone, Commentaries on the Laws of England 148 n.13 (Edward Christian et al., eds., W.E. Dean 1848).

It is also an understanding that has been almost universally adopted.

“According to the authorities cited in the annotation, it may be stated that in general, where land is held by joint tenants, one of whom is a judgment debtor, the mere docketing of the judgment does not effect a severance of the joint estate, and if the debtor dies before levy of execution, the judgment creditor loses his rights against the debtor’s interest, all of which passes to the surviving joint tenant .... ”

Annot., Rights and Remedies of Judgment Creditors or of Purchasers under Execution, 111 A.L.R. 171,172 (1937).

“It appears that all of the courts which have considered this issue in situations where the debtor-tenant died pri- or to execution, sale, or expiration of the period of redemption after sale have concluded that the lien did not sever the joint tenancy, reasoning that upon the death of the debtor that party’s interest went to the survivor and therefore there ■was no property interest to which the lien could attach.”

Francis M. Daugherty, Judgment Lien or Levy of Execution on One Joint Tenant’s Share or Interest as Severing Joint Tenan-c% 51 A.L.R.4& 906 (1987). See also 20 Am. Jur. 2d and 50 C.J.S., supra; 48A C.J.S. Joint Tenancy § 3 (2014) (observing that “[a] joint'tenancy ends, and the right of survivorship terminates once there is only a single surviving joint tenant as the last survivor holds the entire interest in the property, free from thé claims of the heirs or creditors of the deceased coten-ant”).

One of the many cases reaching the foregoing conclusion explained well the reasoning behind and the fairness of the rule:

/‘The legal proposition thus presented can. be stated as follows: Where real property is held by joint tenants, one of whom is a judgment debtor, and the judgment debtor dies prior to a levy of execution but after an abstract of the judgment has been recorded, and a levy of execution is made after the death of the judgment debtor against the interest of the debtor, does the purchaser at the execution sale secure any rights in the property, or does the surviving joint tenant take the entire property free and clear of the lien of the judgment?
“It is well settled in this and other states that, while all joint tenants are alive, execution may be had upon the interest of one of the joint tenants, and that upon the purchase of the interest of that joint tenant at execution sale the joint tenancy is severed and the purchaser and the other joint tenant or tenants become tenants in common. See cases collected and commented on in 111 A.L.R. 171; Pepin, v. Stricklin, 114 Cal. App. 32[, 299 P. 557 (1931) ]; Hilborn v. Soale, 44 Cal.App. 115[, 185 P. 982 (1919)]. The question, in the present case, is whether a judgment lien on the interest of one joint tenant prior to execution severs .the joint tenancy. We are of the opinion that it does not.
“The right of survivorship is the chief characteristic that distinguishes a joint tenancy from other interests in property. The surviving joint tenant does not secure that right from the deceased joint tenant, but from the devise or conveyance by which the joint tenancy was first created. (Green v. Skinner, 185 Cal. 435[, 197 P. 60 (1921) ].) While both joint tenants are alive each has a specialized form of a life estate, with what amounts to a contingent remainder in the fee, the contingency being dependent upon which joint tenant survives. The judgment lien of respondent could attach only to the interest of his debtor, William B.,Nash. That interest terminated upon Nash’s death. After his death there was no interest to levy upon. Although the title of the execution purchaser dates back to the date of his lien, that doctrine' Only applies when the rights of innocent third parties have not intervened. Here the rights of the surviving joint tenant intervened between the date of the lien and the date of the sale. On the latter date the deceased joint tenant had no interest in--the property, and his judgment creditor has no greater rights.
« .
“This rule is sound in theory and fair in its operation. When a creditor has a judgment lien against the interest of one joint tenant he can immediately execute and • sell the interest of his judgment debtor, and thus sever the joint tenancy, or he can keep his lien alive and wait until the joint tenancy is terminated-by the death of one of the joint tenants. If the judgment debtor survives, the judgment lien immediately attaches to the entire property. If the judgment debtor is the first to die, the lien .is lost., If the creditor sits back to await this- contingency, as respondent did in this case, he assumes the risk of losing his lien.”

Zeigler v. Bonnell, 52 Cal.App.2d 217, 219-22, 126 P.2d 118, 119-21 (1942). See, e.g., Toma v. Toma, 163 P.3d 540, 544-45 (Okla. 2007); Jamestown Terminal Elevator, Inc. v. Knopp, 246 N.W.2d 612, 614 (N.D.1976); Northern State Bank v. Toal, 69 Wis.2d 50, 56, 230 N.W.2d 153, 156 (1975); and Musa v. Segelke & Kohlhaus Co., 224 Wis. 432, 272 N.W. 657, 658 (1937).

As contrary authority Iberia cites Dieden v. Schmidt, 104 Cal.App.4th 645, 128 Cal.Rptr.2d 365 (2002), and a couple of other California appellate court cases that relied' upon Dieden, but the situation , in Dieden differed from the one presented in this case and those cited above as authorities in one key respect: The original property interest held by the judgment debtor was not a joint tenancy, but a tenancy in common. The facts in Dieden were as follows:

“In 1981, Benjamin and Conchita Dieden sued Stanley Schmidt. The Died-ens lost and the court entered judgment for Schmidt. The court awarded Schmidt his attorney fees and costs. Schmidt recorded an abstract of judgment (the first abstract) and obtained a lien against real property located in Berkeley owned by the Diedens. Schmidt, however, did not force a sale of the Berkeley property.
“In- 1991, First Nationwide Bank made a loan to the Diedens secured by a deed of trust on the Berkeley property.
“Schmidt renewed his judgment in 1992, but only, against Benjamin Dieden. Schmidt then recorded a second abstract of judgment. It is undisputed that at the time Schmidt recorded this abstract, the Diedens owned the Berkeley property as tenants in common.
“In 1994, the Diedens conveyed their interests in the Berkeley property to themselves as joint tenants.
“In 1998, Benjamin Dieden filed a complaint against Schmidt to quiet title to the Berkeley property. Benjamin, however, died in 1999, leaving Conchita as the surviving joint tenant.”

Dieden, 104 Cal.App.4th at 648-19, 128 Cal.Rptr.2d at 367-68 (footnote omitted; emphasis added). Conchita Dieden argued that Schmidt’s lien expired upon Benjamin Dieden’s death because they held the property as joint tenants at that time. But the court rejected her argument, reasoning:

“As Schmidt points out, however, his judgment lien attached to Benjamin Dieden’s interest as a tenant in common, before the creation of any right of sur-vivorship. Until the hen was satisfied or extinguished, it was enforceable against Benjamin’s interest in the Berkeley property regardless of who held that interest. Under Code of Civil Procedure section 697.390, subdivision (a), a subsequent conveyance or encumbrance of an interest in real property subject to a judgment lien does not affect the lien. Further, under section 695.070, the judgment lien may be enforced against the property in the same manner and to the same extent as if there had been no transfer, even after the death of the judgment debtor. (Id., § 695.070.)
“In fact there is some logical appeal to Schmidt’s argument that after the transfer, the judgment lien could be enforced against the entire property because the property interest Benjamin conveyed to himself was subject to the lien (see e.g., Code Civ. Proc, § 697,340, subd. (b)), as was the interest conveyed to Conchita. Once again, however, it is the language of the Code of Civil Procedure sections 697.390 and 695.070 that controls. Under those sections, Schmidt may enforce his judgment in the same manner and to the same extent as if the property had never been transferred. (See Oliver v. Bledsoe (1992) 5 Cal.App.4th 998, 1009[, 7 Cal. Rptr.2d 382] [lienholder’s rights against the property remain as they were before the transfer].) Therefore, Schmidt retained his lien against a one-half interest in the property as if the transfer and Benjamin’s death never occurred.
“Zeigler [v. Bonnell, 52 Cal.App.2d 217, 126 P.2d 118 (1942),] is inapposite here. The judgment lien in Zeigler attached to an existing joint tenancy interest. There was no transfer of property from one form of ownership to joint tenancy.”

Dieden, 104 Cal.App.4th at 650-52, 128 Cal.Rptr.2d at 369-70 (footnote omitted; some emphasis added).

As we noted above, the property interest to which Iberia’s judgment lien attached was Raymond’s interest in the joint tenancy with Evelyn because that was the property interest conveyed to Raymond. In that context, Iberia’s claim was extinguished when Raymond’s interest in the property ceased upon his death. In contrast, in Dieden the property interest to which Schmidt’s judgment lien attached was Benjamin Dieden’s interest as a tenant in common with his wife. Under California’s civil code, the Diedens’ transfer of the property to themselves as joint tenants did not change the nature of the interest Schmidt held by virtue of his judgment lien; therefore, Benjamin’s death had no effect on the survival of Schmidt’s claim.

As Arvest notes, there are only two instances by statute under which a writ of execution may issue after a debtor’s death, and these are prescribed in Ala. Code 1975, §§ 6-9-62 and 6-9-63. Iberia does not contend on appeal that § 6-9-62 is applicable in this case, as it plainly is not because that statute applies only when the writ of execution is “issued and received by the sheriff during the lifetime of the defendant,” and that was not the case here. Iberia does argue, however, that § 6-9-63 provides it a statutory right to proceed with the sheriffs sale.

Section 6-9-63 provides:

“After six months from the date of the grant of letters testamentary or of administration on the estate of any defendant, in a judgment for money, execution thereof may be had by leave of the court entering the judgment, or of the judge thereof, upon cause shown, against any property on which said judgment was a lien at the time of the death of the defendant, and a sale of such property may be made in the same manner and with the same effect as if the defendant were living. In case of the death of the defendant in a judgment for the recovery of real or personal property, execution may be had without revival in the same manner as if the defendant had not died.”

Iberia argues that § 6-9-63 does not contain an exception for judgments against a property interest of a joint tenant and that, therefore, it has a right to have the property at issue in this case sold “in the same manner and with the same effect as if [Raymond] were living.”

The primary problem with this argument is that, in context, § 6-9-63 refers to executing upon property in the estate of the defendant. The introductory clause of § 6-9-63 provides: “After six months from the date of the grant of letters testamentary or of administration on the estate of any defendant, in a judgment for money, execution thereof may be had.” This language clearly indicates that the judgment will be executed upon property in the estate. As we have already noted, however, a joint tenant’s property interest in the tenancy— unlike a tenant in common’s interest—does not pass into the tenant’s estate upon death if he or she is survived by another joint tenant. Instead, the property interest is extinguished and the surviving tenant owns the property in fee under the conveying instrument. Therefore, § 6-9-63 is not applicable in this situation. Indeed, as Ar-vest notes:

“Section 6-9-63 was adopted as part of the Code of Alabama of 1907 as section 4096.... This statute was adopted during the period of outright abolition of joint tenancies in Alabama that existed from the 1818 Act of the Alabama Territorial Legislature until 1945 when Ala. Acts No. 505 was adopted. At the time of the adoption of Ala. Code § 6-9-63 tenancies in common were the only form of co-ownership and joint tenancies did not exist.”

See, e.g., Nunn v. Keith, 289 Ala. 518, 523, 268 So.2d 792, 797 (1972) (explaining that “the purpose behind the passage of the original statute [the predecessor to § 35-4-7, Ala. Code 1975,] was to abolish common law joint tenancies with their inherent right of survivorship. .,. Subsequently, in 1945, the legislature amended the statute (Title 47, § 19) to make it possible tó convey in joint tenancy, with right of sur-vivorship, simply by expressly stating such intention in the instrument of conveyance”). Thus, § 6-9-63 was not written with joint tenancies in mind inasmuch as such tenancies do not implicate the estate of the deceased.

Because it is clear that Raymond and Evelyn created a joint tenancy with a right of survivorship in the September 11, 2012, deed, and because Raymond’s interest in the property to which Iberia’s judgment lien attached was extinguished upon his death, Iberia has no interest in the property. It follows that Iberia lacks the authority to obtain a writ of execution on its judgment lien against the property. Therefore, the trial court erred in refusing to grant Arvest’s motion to quash the writ of execution.

IV. Conclusion

Based on the foregoing, we reverse the trial court’s order denying Arvest’s motion to quash the writ of execution and remand the case for that court to enter an order granting Arvest’s motion.

MOTIONS TO DISMISS DENIED; REVERSED AND REMANDED.

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

Bolin; J., concurs in the result.

      . The debt consisted of two promissory notes Raymond executed to Capitalsouth Bank in October 2007. Capitalsouth Bank was acquired by Iberiabank in September 2012.

      . "A writ of error constitutes a direct attack on the judgment, and ... an appeal by writ of error is simply another mode of appeal.” 4 C.J.S. Appeal and Error § 30 (2007).

      . See, e.g., State ex rel. O'Dell v. Coker, 59 So.3d 670; 672 (Ala.2010); Wingard v. Little, 883 So.2d 677, 679 (Ala.Civ.App.2003); Cauthen v. Norman, 224 Ala. 371, 371, 140 So. 565, 565 (1932); McDaniel v. Johnston, 110 Ala. 526, 527, 19 So. 35, 36 (1895); Harrison v. Hamner, 99 Ala. 603, 12 So. 917 (1893) (reversing order granting a motion to .quash an execution on the bond); Scheuer v. King, 100 Ala. 238, 239, 13 So. 912, 912 (1893); Sheffey v. Davis, 60 Ala. 548, 550 (1877); and Chambers v. Stone, 9 Ala. 260, 261 (1846).

      . Although there are cases in which this Court has reviewed disputes over executions by way of petitions for a writ of mandamus, dióse commonly involved execution orders in service of or as part of some underlying dispute or litigation. See, e.g., Ex parte Alfab, Inc., 586 So.2d 889 (Ala.1991) (denying mandamus petition seeking to set aside trial court order staying execution of previously es-crowed funds pending appeal of an underlying .judgment); Ex parte Alabama Mobile Homes, Inc., 468 So.2d 156 (Ala.1985) (reviewing on the merits denial of motion to quash garnishment); and Ex parte Mid-Continent Sys., Inc., 470 So.2d 677 (Ala.1985) (denying mandamus petition seeking review of denial of motion to quash certain garnishments and executions).

      . The Nunn Court held that the version of joint tenancy recognized in § 35-4-7
      "differs from the common law estate of the same name only in so far as (1) the statutory--requirement that the intention to have the right of survivorship must be clearly expressed in the instrument of conveyance, and (2) elimination of the common law unity of time. We further hold that such estate is destructible as at common law,”
      Nunn v. Keith, 289 Ala. 518, 524, 268 So.2d 792, 797(1972).

      . In support of its argument Iberia cites Stewart v. AmSouth Mortgage Co., 679 So.2d 247, 249 (Ala.Civ.App.1995), which held that "a mortgage by one joint tenant severs the joint tenancy” because " ‘a mortgage was a conveyance, so it necessarily destroyed the unities of title and interest.' 4 Thompson on Real Property § 31.08(b) at 49 (Thomas ed. 1994).” But a mortgage by this understanding is different than a judgment lien. Unlike a mortgage, a lien does not transfer ownership of properly; it simply gives the judgment creditor a claim against any property owned by the judgment debtor. See Wozniak v. Wozniak, 121 Wis.2d 330, 334, 359 N.W.2d 147, 149 (1984) (explaining that "[wjhile a mortgage serves as security for a particular piece of property, a judgment lien ordinarily is riot a lien on any specific real estate of the judgment debtor but is a general lien on all of the debtor’s real property”). Hence a lien by itself does not interfere with the unities of a joint tenancy or cause a severance thereof.

      . As one treatise on property law explains:
      "Survivorship is central to a joint tenancy. The joint tenant who survives the other cotenants takes the entire estate; the estates of deceased joint tenants have no interest. Theoretically the survivor’s interest attaches by means of the original conveyance, not by transfer from the decedent.”
      Creation of Joint Tenancy, 7 Powell on Real Prop. (MB) ¶ 51.03[3] (June 2013) (footnotes omitted).

      . Iberia contends that Raymond’s interest in the property did not cease to exist upon his death because § 35-4-7 states that "upon the death of one joint tenant, his interest shall pass to the surviving joint tenant.” Iberia argues that the statutory language means that Raymond’s interest in the property and the attached lien passed to Eveyln upon Raymond’s death. Iberia’s only support for this interpretation is Johnson v. Keener, 425 So.2d 1108, 1109-10 (Ala.1983),. which Iberia cites for the proposition that § 35-4-7 "modifies the common law estate of joint tenancy with right of survivorship.” But in Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972), and other cases, the Court made it clear that § 35-4-7 modified the common law only in the senses that the conveying instrument must clearly provide for a right of survivorship and the unity of time is not required to create a joint tenancy.'
      Alabama cases are united with other authorities in indicating that the last survivor of a joint tenancy takes full ownership under the .conveying instrument, not because the deceased joint tenant passed an interest to the surviving joint tenant. Indeed, the whole discussion in Johnson of tenancies in common with cross-contingent remainders versus joint tenancies with a right of survivorship is based on this assumption. The interest'of the deceased joint tenant "passes” in the sense that the surviving joint tenant attains full ownership rather than sharing full ownership with the deceased joint tenant’s heirs. As one court has explained it:
      "In a legal sense, [the deceased joint tenant’s] death does not transfer the rights that he possessed in the property to the surviving tenants. Death does not enlarge or change the estate. Death terminates [the deceased joint tenant’s] ■ interest in the estate. It is rather a falling away of the tenant from the estate than the passing of the estate to others.”
      Fleming v. Fleming, 194 Iowa 71, 174 N.W. 946, 953 (1919), modified on reh’g, 194 Iowa 71, 184 N.W. 296 (1921). See also In re Estate of MacFarline, 14 P.3d 551, 558 n.5 (Okla. 2000) (stating that "[t]his survivorship right does not pass anything from a deceased joint tenant to the survivor upon the death of the former since, by the very nature of the tenancy, title of the joint tenant who dies first terminates at death and vests eo instanti (i.e., immediately) in the survivor. ... Because joint tenants are seised of the whole, while alive, the survivor’s interest is simply a continuation, or extension, of his/her existing interest”). t