author: SHAW, Justice.

text:
    EX PARTE PROFIT BOOST MARKETING, INC., d/b/a Hometown Values Coupon Magazine
    (In re: Mike Zak d/b/a Hometown Magazine v. City of Arab et al.)
    1160326
    Supreme Court of Alabama.
    December 1, 2017
    T. Dylan Reeves of McGlinchey Stafford, Birmingham, for petitioner.
    Alex R. Hirschfield and Lindsey R. Williams of The Hirschfield Law Group, LLC, Birmingham, for respondent Mike Zak d/b/a Hometown Magazine.
    Gary K. Grace and Bree Taylor Wilbourn of Grace, Matthews & Debro, LLC, Huntsville, for respondents City of Arab and Kim Johnson.
   SHAW, Justice.

Profit Boost Marketing, Inc., d/b/a Hometown Values Coupon Magazine ("HVCM"), one of the defendants below, petitions this Court for a writ of mandamus directing the Marshall Circuit Court to vacate its order denying HVCM's motion to dismiss the claims filed against it by Mike Zak d/b/a Hometown Magazine ("Zak") and to direct that court to enter an order dismissing Zak's claims against it. We grant the petition and issue the writ.

Facts and Procedural History

HVCM is a State of Washington based "print broker ... for direct mail advertising." Richard Hagedorn, doing business as HTV Etowah, LLC, apparently purchased, before the initiation of the underlying litigation, a license from HVCM to use its trademark for publication of a coupon magazine.

Hometown Magazine is a coupon distributor; Mike Zak is its sole proprietor. Following an initial inquiry initiated by Zak in August 2013, Zak and HVCM entered into a "Print Brokerage Agreement" and related "Licensing Agreement" whereby Zak was to become an exclusive "Area Publisher" of HVCM's coupon magazine in three specified zones within Alabama, namely Madison, Huntsville, and Arab/Guntersville. E-mail communications in the materials before us suggest that Hagedorn was aware of that agreement and that HVCM encouraged coordination and cooperation between Zak and Hagedorn with regard to their "neighboring" markets. On October 11, 2013, Zak obtained from the City of Arab ("the City") a business license to engage in "publishing industries." Zak ultimately published a single issue of a publication entitled Hometown Magazine. Thus, according to HVCM, "[i]nstead of publishing as [HVCM], Zak formed Hometown Magazine and used the [HVCM] trademark when he sold advertising to local business," i.e., allegedly, "Zak solicited ... Hagedorn's clients as [HVCM], sold them advertising using the [HVCM] trademark ..., and never published a magazine as [HVCM]." This action resulted in a dispute between Zak and Hagedorn.

On November 12, 2013, Hagedorn sent the Arab Chamber of Commerce ("the Chamber") the following e-mail communication regarding Zak and Hometown Magazine:

"There are 2 men going around Arab purporting to represent [HVCM]. Their names are Dion Hahn and Mike Zak; they are leaving behind this magazine telling merchants this is what they are getting. In fact they are not in anyway affiliated with [HVCM]. They have been delivered cease and desist orders due to copyright and trademark infringements. They are also telling people the method of distribution is direct mail when in fact it was distributed via The Arab Tribune. These people do not hold business licenses and should be reported to the appropriate authorities. I have attached a copy of my magazine. Please forward to all Chamber members."

The following day, the City posted on Facebook, a social-media Web site, an essentially verbatim copy of Hagedorn's e-mail regarding Mike Zak and Hometown Magazine. In response, Dion Hahn, purportedly an employee of Hometown Magazine, commented on the post, allegedly notifying the City that the information in its post was incorrect and should be promptly removed. The City, however, allegedly declined to remove it; instead, it posted a response indicating that it had " 'received [the] information through a mass email sent from the ... Chamber..., which has always been very reliable," and directed further inquiries to the Chamber.

On November 19, 2013, counsel purporting to represent both "HTV Etowah, LLC[, Hagedorn's business,] and [HVCM]" sent written communication addressed to Hahn and Zak alleging that, "[r]ather than contract[ing] to become a distributor of [HVCM's] magazine, [Zak] apparently and allegedly appropriated the name, likeness and attributes of [HVCM], marketed it as [his] own product and sold advertising to customers while representing to them [Zak was HVCM]." The letter further demanded that Zak "immediately cease and desist from any actions which violate [Hagedorn and HVCM's] proprietary ownership rights in [HVCM]" or warned that "appropriate legal action" would follow.

As a result of the above-described Facebook post, which Zak maintains "was entirely fallacious and possessed absolutely no truth," Zak allegedly began to receive queries from customers regarding the legality of his activities. Ultimately, according to Zak, his reputation was allegedly so "irreparably tarnished and damaged" that Zak was forced to close his business. On August 22, 2014, Zak sued, in the Cullman Circuit Court, the City, the Chamber, and various fictitiously named defendants.

Specifically, Zak sought to recover both compensatory and punitive damages on various theories, including defamation, negligence, and "wantonness/gross negligence."

On December 3, 2014, Zak issued several sets of discovery requests to the defendants, including interrogatories directed to the Chamber that sought information about any "communications with [HVCM] or ... Hagedorn." On January 12, 2015, Zak amended his complaint to add two additional counts against the City pursuant to 42 U.S.C. § 1983, asserting "civil rights depravation and violation" and also "inadequate training and supervision [and] failure to train." In its October 29, 2015, responses to Zak's discovery requests, as described above, the Chamber produced the November 12, 2013, e-mail from Hagedorn on which the offending post was based and identified Hagedorn as a party having information regarding the underlying events.

As best we are able to discern based on the limited materials before us, it appears that, following Zak's first amendment to his complaint adding federal claims, the matter was, at the request of the City, first transferred, in January 2015, from the Cullman Circuit Court to the Marshall Circuit Court on the ground that venue in the Cullman Circuit Court was improper and, in February 2015, removed to the United States District Court for the Northern District of Alabama. However, the two federal § 1983 claims were later dismissed by the federal court, and, on July 24, 2015, the matter was remanded to the Marshall Circuit Court.

On March 1, 2016-after the expiration of the two-year limitations period applicable to Zak's claims-Zak filed a "Second Amended Complaint" that, among other changes, specifically named HVCM and Hagedorn as defendants. Neither HVCM nor Hagedorn was substituted in place of any of the fictitiously named defendants in Zak's original complaint. Zak's second amended complaint asserted against HVCM and Hagedorn his previous tort-based claims for relief and further added counts alleging "tortious interference with business" and civil conspiracy.

In response, HVCM filed, pursuant to various provisions of Rule 12, Ala. R. Civ. P., a "Motion to Dismiss" all claims against it. Specifically, in its motion and accompanying brief, HVCM disputed the sufficiency of service, challenged the trial court's exercise of personal jurisdiction over it, and maintained that Zak's claims were time-barred. HVCM's motion was supported by, among other exhibits, evidence indicating that Zak was allegedly aware of HVCM's identity at the time he filed his original complaint and certainly before the statute of limitations expired. HVCM further noted that it was added as a new defendant rather than substituted for a previously identified but fictitiously named defendant. HVCM further denied sufficient contacts with Alabama to support personal jurisdiction under Alabama's long-arm rule and included affidavit testimony from HVCM's president aimed at establishing its alleged lack of contacts with Alabama.

In opposition to HVCM's dismissal request, Zak asserted that HVCM was properly served or that he should be allowed to correct service, that HVCM conducted "substantial business" within Alabama, and that his claims against HVCM were timely either as the result of tolling pursuant to removal of the matter to federal court or because his second amended complaint "relate[d] back" to the filing of his original complaint pursuant to Rules 9(h) and 15(c), Ala. R. Civ. P.

Thereafter, on September 8, 2016, the trial court denied a motion by HVCM to quash Zak's allegedly ineffective service of process and granted Zak leave to perfect service. On that same date, it denied HVCM's motion to dismiss.

HVCM later promptly filed, subsequent to Zak's perfection of proper service on HVCM, a motion again seeking dismissal on the grounds that the trial court lacked personal jurisdiction and that Zak's claims were untimely. The trial court denied the motion, and HVCM then filed the instant petition seeking mandamus relief; we subsequently ordered answers and briefs.

Standard of Review

" ' "A writ of mandamus is an extraordinary remedy, and it 'will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.' " ' Ex parte Monsanto Co., 862 So.2d 595, 604 (Ala. 2003) (quoting Ex parte Butts, 775 So.2d 173, 176 (Ala. 2000), quoting in turn Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993) ).... A petition for a writ of mandamus ... is the proper means to seek review of an order denying a motion to dismiss or for a summary judgment filed by a defendant added after the statute of limitations has run, under Rule 15(c)(3), Ala. R. Civ. P., which governs the relation back of amended complaints when the defendant has received notice of the action so that the defendant will not be prejudiced in maintaining a defense on the merits and the defendant knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the defendant. See, e.g., Ex parte Empire Gas Corp., 559 So.2d 1072 (Ala. 1990) (denying petition for writ of mandamus where parent corporation filed a motion to dismiss judgment creditors' amended complaint in which the judgment creditors sought to add parent corporation as a party under Rule 15(c), Ala. R. Civ. P., and to hold the parent corporation liable for the debts of its subsidiary). See also Ex parte Jackson, 780 So.2d 681 (Ala. 2000), Ex parte Snow, 764 So.2d 531 (Ala. 1999), and Ex parte Stover, 663 So.2d 948 (Ala. 1995).''

Ex parte Novus Utils., Inc., 85 So.3d 988, 995-96 (Ala. 2011).

Discussion

I.

Before reaching the claims in HVCM's petition, we first consider Zak's contention that the petition is untimely. According to Zak, HVCM filed its petition more than 42 days-and, in fact, more than 4 months-after the trial court's September 8, 2016, order denying HVCM's original motion to dismiss. See Ex parte Franks, 7 So.3d 391, 393 (Ala. Civ. App. 2008) ("The presumptively reasonable time within which to file a petition for a writ of mandamus is the same time allowed for taking an appeal, i.e., 42 days from the date of entry of the judgment or order being challenged." (citing Rule 21(a)(3), Ala. R. App. P.; Rule 4(a)(1), Ala. R. App. P.; and Ex parte Fiber Transp., L.L.C., 902 So.2d 98, 99-100 (Ala. Civ. App. 2004) )). This petition was filed after HVCM's second motion to dismiss was denied. Zak cites Ex parte Jones, 147 So.3d 415 (Ala. 2013), for the proposition that a party's renewed filing raising essentially the same arguments as a previously disposed motion will not toll the presumptively reasonable time for petitioning for mandamus relief. In Jones, we held:

"To allow [a defendant] to ... petition this Court for a writ of mandamus following the denial of the 'renewed' motion for a summary judgment, after this Court had determined that his previously filed mandamus petition challenging the denial of his first summary-judgment motion based on the same arguments and grounds as the 'renewed' motion for a summary judgment [was untimely], would undermine the spirit and purpose of Rule 21(a)(3) [, Ala. R. App. P.,] and render that rule meaningless."

147 So.3d at 420. Zak further relies on authority establishing that "[t]he filing of [a] motion to reconsider [does] not toll the 42-day period for filing a petition for a writ of mandamus." Meadwestvaco Corp. v. Mitchell, 195 So.3d 290, 294-95 (Ala. Civ. App. 2015).

HVCM, however, maintains that the trial court's September 8 order was void as to HVCM as the result of ineffective service. See Bank of America Corp. v. Edwards, 881 So.2d 403, 405 (Ala. 2003) (" 'A judgment rendered against a defendant in the absence of personal jurisdiction over that defendant is void.' " (quoting Horizons 2000, Inc. v. Smith, 620 So.2d 606, 607 (Ala. 1993) )). Alternatively, HVCM argues that it filed the instant petition within a reasonable time-and certainly within 42 days of the trial court's January 3, 2017, order denying HVCM's renewed motion following Zak's perfection of service. Under the present circumstances, we agree.

A notable factor distinguishing this case from Mitchell, supra, where the pleadings omitted the "statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time," Rule 21(a)(3), Ala. R. App. P., is the following explanation for HVCM's delay:

"Because service is a threshold jurisdictional issue, the [September 8, 2016,] order denying the remainder of [HVCM's] motion to dismiss was void, and an appeal was not necessary. Med-Call, Inc. [v. Livingston], 64 So.3d [1051] at 1053 [ (Ala. Civ. App. 2010) ]. To preserve for appeal the personal jurisdiction and statute of limitations issues, [HVCM] filed a new motion to dismiss once it was served.... If this Court believes that [HVCM] should have appealed the September 8, 2016, order ..., then pursuant to Ala. R. App. P. 21(a)(3), [HVCM] states that this petition is filed within a reasonable time because it was reasonable to require [Zak] to perfect service upon [HVCM] before it appealed lack of personal jurisdiction."

(HVCM's petition, at p. 4 n.5.)

In comparable circumstances in Ex parte Franks, supra, the Court of Civil Appeals permitted an apparently untimely petition where the petitioner included a statement explaining that he had not been served with the underlying complaint until more than 43 days from the entry date of the order his petition challenged. Holding that the petitioner's explanation constituted good cause because "the [petitioner] was not a party to the action until after the expiration of the presumptively reasonable time for challenging the May 13, 2008, order," the court considered the petition. 7 So.3d at 393-94. Although, unlike the petitioner in Ex parte Franks, HVCM did apparently receive notice of and an opportunity to be heard at the hearing preceding the entry of the trial court's September 8 order, HVCM's concerns regarding the validity of that order before proper service and the potential impact of a void order on a subsequent appeal were valid. See Ex parte Washington, 176 So.3d 852, 854 (Ala. Civ. App. 2015) ("This court cannot conduct a review of void orders; therefore, the ... petition is due to be dismissed."). Moreover, HVCM's second motion represented an apparent attempt to obtain a valid order denying HVCM's claims that would support a mandamus petition. It was, therefore, neither a mere request for reconsideration of the trial court's original denial nor an improper attempt to attain a " 'second bite' at appellate review"; HVCM's second motion also did not serve to eviscerate Rule 21(a)(3), which concerned the Court in Jones, 147 So.3d at 420. Therefore, HVCM's petition establishes that HVCM was not dilatory and that the instant petition should not be deemed untimely.

II.

In its petition, HVCM maintains that it lacks sufficient contacts with Alabama to support personal jurisdiction and that the trial court thus erred in denying its motion to dismiss. Alternatively, HVCM contends that mandamus should issue to direct dismissal of Zak's claims because those claims were filed after the statute of limitations expired and do not relate back to the filing of Zak's original complaint. Without commenting on the merits of HVCM's personal-jurisdiction challenge, because of our disposition of HVCM's challenge based on the statute of limitations and the doctrine of relation back, we pretermit discussion of the personal-jurisdiction issue. See Favorite Mkt. Store v. Waldrop, 924 So.2d 719, 723 (Ala. Civ. App. 2005) (stating that this Court would pretermit discussion of further issues in light of the dispositive nature of another issue). See also Ex parte Lost River Oilfield Servs., LLC, 167 So.3d 371, 375 (Ala. Civ. App. 2014) (pretermitting discussion of trial court's alleged lacked of personal jurisdiction over petitioner based on the holding that the trial court lacked subject-matter jurisdiction to hear the respondent's workers' compensation claim).

In his filings below, Zak conceded both that a two-year statute of limitations applied to all claims pending against HVCM and that his claims accrued in November 2013. It further appears undisputed that Zak did not include HVCM as a named defendant in his original complaint, but added it as a defendant for the first time in his second amended complaint filed on March 1, 2016, after the two-year limitations period had expired in November 2015. Finally, Zak candidly acknowledged that his second amended complaint did not substitute HVCM for one of the fictitiously named defendants included in the original complaint. Based on those facts, HVCM argues, none of the provisions in Rule 15, Ala. R. Civ. P., support its untimely addition as a party under relation-back principles. Specifically, HVCM contends that, contrary to Zak's contention in the trial court, the claims asserted against HVCM do not relate back to the filing of the original complaint as permitted by Rules 9(h) and 15(c)(4), Ala. R. Civ. P. Instead, HVCM says, it was added as a new defendant rather than substituted for a fictitious one, despite the fact that Zak's 2014 discovery requests clearly indicated that he was aware of HVCM's identity well before the statute of limitations expired. Also according to HVCM, it would be substantially prejudiced if added, pursuant to Rule 15(c)(3), as a defendant at this late stage -an error that it contends a postjudgment appeal would not correct.

The petition points this Court to the well established principles cited in Ex parte Novus Utilities, supra, in which we explained:

" Rule 15(c) provides, in pertinent part:
" '(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when
" '....
" '(3) the amendment, other than one naming a party under the party's true name after having been initially sued under a fictitious name, changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the applicable period of limitations or one hundred twenty (120) days of the commencement of the action, whichever comes later, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party....'
"The Court of Civil Appeals has correctly stated:
" 'Our Supreme Court has held that the granting of amendments to pleadings other than those of right under Rule 15(a), Ala. R. Civ. P.[,] are within the discretion of the [trial] court. However, if the statute of limitations has run, the amendment may relate back only if the requirements of Rule 15(c), [Ala.] R. Civ. P.[,] are met. Ex parte Tidmore, 418 So.2d 866 (Ala. 1982).'
" Weaver v. Redwing Carriers, Inc., 475 So.2d 869, 871 (Ala. Civ. App. 1985).
"We note that federal decisions construing the Federal Rules of Civil Procedure are persuasive authority in construing the Alabama Rules of Civil Procedure because the Alabama Rules were patterned after the Federal Rules. Borders v. City of Huntsville, 875 So.2d 1168 (Ala. 2003).
" 'The purpose of the relation back concept is to permit a claim to be tried on its merits rather than being dismissed based on a technicality so long as the purpose underlying the statute of limitations has been satisfied. James Wm. Moore, Moore's Federal Practice § 15.19(3)(a)(3d ed. 2005). The primary purpose of statutes of limitation is to ensure that defendants have notice of an action against them before evidence has been lost or becomes unavailable and with enough time to prepare an adequate defense. [Rebecca S.] Engrav, [ Relation Back of Amendments Naming Previously Unnamed Defendants Under Federal Rule of Civil Procedure 15(c), 89 Cal. L. Rev. 1549] at 1573 [ (2001) ]. Thus, if a party has been notified of litigation involving a specific factual occurrence, it has received the protection that the statute of limitations requires. See, e.g., Williams v. U.S. Postal Serv., 873 F.2d 1069, 1073 (7th Cir.1989). Under such circumstances, courts should freely grant leave to amend. Woods v. Ind. Univ.-Purdue Univ. at Indianapolis, 996 F.2d 880, 883 (7th Cir. 1993) (stating that courts should attempt to avoid permitting defendants to rely on technical defects to avoid litigation).'
" Mitchell v. CFC Fin., LLC, 230 F.R.D. 548, 549-50 (E.D. Wis. 2005)."

85 So.3d at 996-97.

As set out above, Rule 15(c)(3) excludes fictitious-party pleading and instead applies to a plaintiff's attempt to amend in order to correctly identify a defendant included in or contemplated by the plaintiffs' original complaint. That is not what occurred in the present case. Instead, Zak's second amended complaint specifically acknowledged that it "add[ed] additional Defendants," including HVCM, as well as "additional claims relating to the new Defendants," and Zak acknowledges that no substitution occurred.

Even assuming that the provisions of Rule 15(c)(3) apply to the present circumstances, we further note that the rule limits application of the relation-back principles to situations where the party added by the amendment received notice of the commencement of the action either before the expiration of the applicable limitations period or within 120 days of the filing of the complaint initiating the action. Finally, the rule requires that the added party both would not be prejudiced by having to maintain a defense and understood that, in the absence of a mistake regarding its identity, it would have been included in the original complaint:

"[I]n order for the [plaintiffs] to obtain the benefits of the relation-back doctrine when they attempted to add ... a new party, the amended pleading adding [that party] must satisfy the requirements of Rule 15(c)(3), Ala. R. Civ. P. The party added must have received notice of the institution of the action within the applicable limitations period or within 120 days of the filing of the original complaint (whichever comes later) so that it is not prejudiced in maintaining a defense on the merits. Rule 15(c)(3). A court may impute notice of the institution of an action against the original defendant to a subsequently named defendant if there is an 'identity of interests.' "

Ex parte Novus Utils., 85 So.3d at 1001.

Here, HVCM denies receiving notice of Zak's action within the specified time frame. It is undisputed that the City and the Chamber were the only defendants actually named in either Zak's original or his first amended complaint. There is nothing suggesting identity of interests-or even a tenuous connection-between either of those municipal entities and HVCM. Moreover, the e-mail message that ultimately led to the initiation of the action appears to have originated solely from Hagedorn, not from HVCM. Nothing suggests that HVCM was even aware that the message had been sent or of Hagedorn's apparent dispute with Zak regarding local rights to distribute HVCM's products. Similarly, the November 2013 cease-and-desist letter also does not appear to have been sent to HVCM. In any event, even Hagedorn, the only party with whom HVCM had an arguable connection and from whom HVCM might have learned of the action, was not a party at any time within the parameters specified in Rule 15(c)(3). In sum, nothing in the materials before us indicates that HVCM either had notice of the institution of the action or should have understood that HVCM was, in the absence of mistake, an intended defendant.

In light of the foregoing, HVCM has demonstrated that it was added as a defendant-not substituted for a fictitiously named defendant-after the expiration of the applicable limitations period and that relation-back principles do not apply. We therefore conclude that HVCM established a clear legal right to the relief sought. See Ex parte Novus Utils., 85 So.3d at 995-96. See also, generally, Ex parte Hodge, 153 So.3d 734, 738 (Ala. 2014). "Because we hold that the second amended complaint does not relate back, we need not inquire whether [HVCM] would be prejudiced by allowing the amendment." Prior v. Cancer Surgery of Mobile, P.C., 959 So.2d 1092, 1097-98 (Ala. 2006) (footnote omitted).

In opposition to that showing, Zak-and, more particularly, his second amended complaint-fail to allege facts countering HVCM's claims. Instead, he raises two counterarguments: (1) that the claims against HVCM were timely added pursuant to the practice contemplated by Rules 9(h) and 15(c) and (2) that, as a result of removal to federal court, the statute of limitations was tolled pursuant to 28 U.S.C. § 1367(d), thus rendering his claims timely.

Despite Zak's present reliance on the rules of fictitious-party practice governed by Rules 9(h) and 15(c), we note that, as discussed above, in his response in opposition to HVCM's initial motion below, Zak conceded that "technically, the Second Amended Complaint does not substitute HVCM for the fictitious party as would be proper." Zak nevertheless seeks to have applied the analysis governing relation back in the fictitious-party setting. Zak's filings in this Court characterize his acknowledged failure to substitute as a "technicality" that, he maintains, he should have been granted leave to correct. There is, however, nothing in the materials before us demonstrating that Zak ever sought the trial court's permission to correct the alleged technical mistake or that he attempted, at any time, to file a "corrected" second amended complaint seeking to properly substitute HVCM for a defendant that had been previously named fictitiously. We can reach no other conclusion but that Zak's reliance on principles of fictitious-party practice avail him nothing under the present facts. That is especially true, here, where all evidence suggests-alleged outstanding discovery aside-that there is no conceivable way Zak could demonstrate that he was ignorant of the identity of HVCM-with whom Zak had directly negotiated and communicated-either at the time the original complaint was filed, at the time Zak's initial discovery requests clearly demonstrating his knowledge of HVCM were filed, or when Zak received the Chamber's discovery responses before the statute of limitations had expired. See Ex parte Nicholson Mfg. Ltd., 182 So.3d 510, 513 (Ala. 2015) (explaining, with regard to fictitious-party practice, that " 'the relation back principle applies only when the plaintiff "is ignorant of the name of an opposing party" ' " (quoting Ex parte General Motors of Canada, Ltd., 144 So.3d 236, 239 (Ala. 2013) )).

We are similarly unpersuaded by Zak's claims that the statutory tolling provision of 28 U.S.C. § 1367(d) undermines the merit of HVCM's petition. As Zak correctly notes, "[t]he statute of limitations for [a] plaintiff's state law claims are tolled during the pendency of the [federal] action pursuant to 28 U.S.C. § 1367(d) and continue to be tolled for an additional 30 days after dismissal." (Zak's brief, at pp. 17-18.) Nonetheless, this proposition is inapplicable in the present action.

" Section 1367(d), 28 U.S.C., specifically states:
" 'The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.' "

Weinrib v. Duncan, 962 So.2d 167, 169 (Ala. 2007) (original emphasis omitted; emphasis added). As discussed in detail above, however, Zak's claims against HVCM had not been asserted at the time the case was removed to federal court; therefore, those claims were not pending "in the same action that [was] voluntarily dismissed at the same time" as the other pending federal and state-law claims that were dismissed by the federal district court's July 24, 2015, opinion. See Rester v. McWane, Inc., 962 So.2d 183, 186 (Ala. 2007) (" Section 1367(d)... tolls state-law claims when those same claims are pending in federal court."). Moreover, as also discussed above, we have already concluded that the claims against HVCM do not relate back to the original complaint.

Based on the foregoing, we hold that the trial court erred in denying HVCM's motion requesting dismissal of Zak's claims on statute-of-limitations grounds. We therefore grant HVCM's petition and issue a writ of mandamus directing the Marshall Circuit Court to vacate its January 3, 2017, order denying HVCM's motion and to enter an order dismissing HVCM as a defendant in the underlying action.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Parker, Main, Wise, Bryan, and Sellers, JJ., concur.

      Although this petition was filed on behalf of "Hometown Values Coupon Magazine," its proper name is "Profit Boost Marketing, Inc., d/b/a Hometown Values Coupon Magazine."

      Nothing suggests that HVCM knew anything about this letter, which was presumably sent at Hagedorn's request.

      The fictitiously named defendants included:
      "Fictitious parties A, B, and C whether singular or plural, the person, firm, corporation, partnership or entities who or which caused or contributed to cause the damages complained of herein.
      "... Fictitious Parties D, E, and F whether singular or plural, firms or corporations, partnership or other entities who or which were or may have been responsible for the actions, conduct or were the principal or agent of any of the named Defendants who Defamed [Zak].
      "... Fictitious Parties G, H and I, those persons, firms or corporations who recklessly disseminated false or otherwise inaccurate information concerning [Zak], whose identity is not presently known but who will be substituted by amendment when ascertained."

      See Prior v. Cancer Surgery of Mobile, P.C., 959 So.2d 1092, 1095 (Ala. 2006) ("Even if otherwise barred by the applicable statute of limitations, an amendment to a complaint may be allowed if it 'arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading....' Rule 15(c)(2), Ala. R. Civ. P. However, if allowing the plaintiff to amend his or her complaint would prejudice the opposing party, the amendment should be denied. Ex parte Johnston-Tombigbee Furniture Mfg. Co., 937 So.2d 1035 (Ala. 2005)." (footnote omitted)).


source: Caselaw Access Project

author: BRYAN, Justice.

license: Public Domain

text:
    Tomeka MCELROY and Marlon McElroy v. Tracy MCELROY
    1160394
    Supreme Court of Alabama.
    December 15, 2017
    John G. Dana and James A. Stewart of Gordon, Dana & Gilmore, LLC, Birmingham, for appellants.
    Rodger M. Smitherman of Smitherman Law Offices LLC, Birmingham; and Wayman Powell III, Birmingham, for appellee.
   BRYAN, Justice.

Tomeka McElroy and Marlon McElroy (hereinafter referred to collectively as "the appellants") appeal from a judgment of the Jefferson Circuit Court ("the circuit court") denying their will contest. For the reasons set forth herein, we dismiss the appeal.

Procedural History

On April 14, 2010, Tracy McElroy filed a petition to probate the will of Clifton McElroy, Jr., in the Jefferson Probate Court ("the probate court"). The petition stated that Clifton died on April 11, 2010, and that Clifton's will, which was attached to the petition and which named Tracy as the executrix, was self-proving in accordance with the requirements of § 43-8-132, Ala. Code 1975. On the same day, the probate court admitted the will to probate and issued letters testamentary to Tracy.

On September 16, 2010, the appellants filed a will contest in the probate court, alleging that Clifton's signature on the will was forged and that, therefore, the will was not properly executed. The appellants, who were both Clifton's heirs and beneficiaries under his will, demanded that their will contest be transferred to the circuit court pursuant to § 43-8-198, Ala. Code 1975, which provides for the transfer of a will contest by the probate court to the circuit court, or that the administration of the estate, including the will contest, be removed to the circuit court pursuant to § 12-11-41, Ala. Code 1975, because, they said, the estate could be better administered in the circuit court.

Tracy filed a motion to dismiss the will contest, arguing that, because the will had already been admitted to probate, the will contest could not be filed pursuant to § 43-8-190, Ala. Code 1975, and that the only other provision for filing a will contest, § 43-8-199, Ala. Code 1975, required the appellants to file the will contest in the circuit court. Tracy also moved to dismiss the appellants' "petition to remove" the administration of the estate to the circuit court pursuant to § 12-11-41.

The appellants argued that the will contest was properly filed in the probate court because a local act applicable to Jefferson County gave probate courts concurrent jurisdiction with circuit courts to decide will contests. Specifically, Act No. 1144, Ala. Acts 1971, provides that the probate court has "general jurisdiction concurrent with that of the Circuit Courts of this State, in equity, in the administration of the estates of deceased persons." Thus, they argued, because the probate court shared concurrent equitable estate jurisdiction with the circuit court, the probate court had jurisdiction to consider their will contest pursuant to § 43-8-199 and Act No. 1144. They also argued that the circuit court could have jurisdiction over their will contest pursuant to § 12-11-41, which allows for the removal of the administration of an estate from probate court to the circuit court "at any time before a final settlement thereof."

On November 30, 2010, the appellants filed in the probate court a notice of withdrawal of their petition to remove the administration of Clifton's estate from the probate court to the circuit court. In the notice, the appellants specifically asked the probate court to maintain jurisdiction of the will contest. However, on December 14, 2010, the probate court entered an order purporting to remove the administration of Clifton's estate to the circuit court pursuant to § 12-11-41. The probate-court record was certified by the probate court and was filed in the circuit court on June 21, 2012. There is nothing in the record before this Court indicating that the circuit court entered an order removing the administration of the estate from the probate court.

After discovery delays, multiple continuances, and a failed summary-judgment motion filed by the appellants, the circuit court conducted a bench trial on the will contest over three days in December 2016. On December 29, 2016, the circuit court entered a judgment finding that Clifton's will did not meet the requirements of a self-proving will pursuant to § 43-8-132 but that the will was properly executed and, therefore, valid, pursuant to § 43-8-131, Ala. Code 1975. In that judgment, the circuit court, discussing its jurisdiction, stated that "the Probate Court of Jefferson County removed the administration of the Estate of Clifton McElroy, Jr. to the Circuit Court of Jefferson County pursuant to ... § 12-11-41" and that, "[a]fter the Probate Court of Jefferson County removed the administration of the [e]state ... to the Circuit Court of Jefferson County, the Circuit Court ordered the Jefferson County Probate Court to send the certified record (which included the will contest) and documents to the Jefferson Circuit Court." (Emphasis added.) The appellants timely appealed.

Jurisdiction

Although neither party raises a question before this Court regarding the circuit court's subject-matter jurisdiction to consider the appellants' will contest, the absence of subject-matter jurisdiction cannot be waived, and it is the duty of an appellate court to notice the absence of subject-matter jurisdiction ex mero motu. See MPQ, Inc. v. Birmingham Realty Co., 78 So.3d 391, 393 (Ala. 2011). If the circuit court's jurisdiction to consider the will contest was never properly invoked, then the judgment entered on December 29, 2016, is void and would not support an appeal. MPQ, 78 So.3d at 394 ('' 'A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment.' " (quoting Vann v. Cook, 989 So.2d 556, 559 (Ala. Civ. App. 2008) )).

"The jurisdiction of both the probate court and the circuit court over will contests is statutory and limited. Ex parte Stephens, 259 Ala. 361, 66 So.2d 901 (1953). The only jurisdiction a court can take over such cases is that granted by statute. A court cannot depart from the procedures delineated in the statute and still retain jurisdiction."

Kaller v. Rigdon, 480 So.2d 536, 539 (Ala. 1985).

Before both the probate court and the circuit court, Tracy maintained that the will contest was improperly filed because the appellants filed the contest in the probate court after the will had been admitted for probate.

"Alabama law pertaining to will contests is well settled and long-standing:
" 'In Alabama a will may be contested in two ways: (1) under § 43-8-190..., before probate, a contest may be instituted in the probate court or (2) under § 43-8-199..., after probate and within six months thereof, a contest may be instituted by filing a complaint in the circuit court of the county in which the will was probated.' "

Ex parte Floyd, 105 So.3d 1193, 1195 (Ala. 2012) (quoting Stevens v. Gary, 565 So.2d 73, 74 (Ala. 1990) (emphasis added)).

It is undisputed that Clifton's will was admitted for probate on April 14, 2010, approximately five months before the appellants filed their will contest in the probate court. Accordingly, the will contest could not have been filed pursuant to § 43-8-190. In most circumstances, the will contest in this case would have also been improperly filed pursuant to § 43-8-199 because, although it was filed within six months after the will was admitted for probate, the appellants filed the contest in the probate court rather than the circuit court. See Bond v. Pylant, 3 So.3d 852 (Ala. 2008) (holding that a will contest filed in the probate court after the will was admitted for probate was a nullity and stating that, pursuant to § 43-8-199, the contest should have been filed in the circuit court within six months of the admission of the will to probate). However, in this case, the will contest was properly filed in the probate court pursuant to § 43-8-199 because the probate court, which lies in Jefferson County, has concurrent equity jurisdiction over estates with the circuit court pursuant to Act No. 1144, § 1. In nearly identical circumstances, this Court has held that the Mobile Probate Court, which also shares general equity jurisdiction concurrent with that of the circuit courts of this State in the administration of the estates of deceased persons, see Act No. 974, Ala. Acts 1961, had jurisdiction to consider a will contest filed after the will was admitted for probate based on the concurrent jurisdiction imparted to the probate court by Act No. 974. See Coleman v. Richardson, 421 So.2d 113 (Ala. 1982) (analyzing former § 43-1-79, Ala. Code 1975, which is now codified at § 43-8-199, and holding that the probate court had jurisdiction over the will contest even though it was filed in the probate court after the will was admitted for probate based on the conference of concurrent equity jurisdiction by Act No. 974). Accordingly, we conclude that the probate court had jurisdiction over the appellants' will contest at the time it was filed. See Daniel v. Moye, 224 So.3d 115, 131 n.9 (Ala. 2016) (noting that "there are currently four counties in Alabama-Mobile, Jefferson, Shelby, and Pickens-in which the probate courts have been vested with concurrent equitable estate jurisdiction with the circuit court to try will contests after a will has been admitted to probate" (emphasis added)).

When they filed their will contest, the appellants moved the probate court to transfer the contest to the circuit court pursuant to § 43-8-198 or to remove the administration of the estate, including the will contest, to the circuit court pursuant to § 12-11-41. See generally Ex parte Clayton, 514 So.2d 1013, 1017 (Ala. 1987) ("Administration of the estate is a broad concept involving all matters necessary to reach a final settlement of the estate.... When the administration of the estate is removed, all aspects of the administration must be removed."). The record indicates that the appellants subsequently withdrew their request to have the will contest transferred to the circuit court or the administration of the estate removed to the circuit court; nevertheless, the probate court entered an "Order of Removal," citing § 12-11-41, stating that "the administration of the estate is hereby removed to the Circuit Court of Jefferson County." (Emphasis added.)

The probate court's "Order of Removal" was ineffective to invoke the circuit court's jurisdiction over the administration of the estate. In DuBose v. Weaver, 68 So.3d 814 (Ala. 2011), this Court held that "the filing of a petition for removal in the circuit court and the entry of an order of removal by that court are prerequisites to that court's acquisition of jurisdiction over the administration of the estate pursuant to § 12-11-41." 68 So.3d at 822 (some emphasis added). The Court in DuBose further noted that "the probate court does not have authority to transfer the administration of an estate to the circuit court; the authority to remove the administration of an estate from the probate court to the circuit court resides in the circuit court." 68 So.3d at 817 n.4. In the present case, there is no indication that any party filed a petition for removal in the circuit court or that the circuit court ever entered an order removing the administration of the estate from the probate court. Under the circumstances of this case, the removal of the administration of the estate was the only ostensible basis the circuit court had for exercising jurisdiction over the appellants' will contest. Accordingly, because the administration of the estate was not properly removed to the circuit court, the circuit never acquired subject-matter jurisdiction over the administration of the estate or the pending will contest.

The procedure for removing a case from the probate court to the circuit court pursuant to § 12-11-41 is not altered in any way by the fact that the probate court in this case had concurrent equitable estate jurisdiction with the circuit court pursuant to Act No. 1144. Section 6 of Act No. 1144 provides, in pertinent part:

"The jurisdiction conferred by this act on the Probate Courts and the Probate Judges of such counties is intended to be cumulative only, and it is not intended hereby to in any manner limit or restrict the present jurisdiction of the Circuit Courts or the Probate Courts of such counties, including, without limitation, the right to appeal from orders, judgments and decrees of the Probate Judges of such counties in the manner as now provided by law. Nothing in this act shall be construed as prohibiting or as creating any conditions to the removal of any estates, or the administration of any estates, from the Probate Court to the Circuit Court, in equity, as is now provided by law."

In Ex parte Clayton, supra, this Court, interpreting § 6 of Act No. 1144, stated that, "[t]hough the local act confers equity jurisdiction on the probate court, § 6 of the local act makes it evident that powers granted to the court pursuant to the local act in no way affect the rights and conditions for removal under the general statute." 514 So.2d at 1015-16. In that case, the Court held that the administratrix of an estate had the right to seek, and the circuit court had authority to order, the removal of the administration of an estate after the Jefferson Probate Court had invoked its concurrent equity estate jurisdiction to consider a breach-of-warranty claim against the estate and a claim against the administratrix individually.

Generally, "[o]nce the administration and settlement of an estate are removed from the probate court, the probate court loses jurisdiction over the estate, and the circuit court obtains and maintains jurisdiction until the final settlement of the case." Oliver v. Johnson, 583 So.2d 1331, 1332 (Ala. 1991). However, in this case, the administration of Clifton's estate was not properly removed from the probate court; therefore, the circuit court never obtained jurisdiction over the administration of Clifton's estate. Thus, the circuit court did not have subject-matter jurisdiction to consider the will contest, and the judgment entered by the circuit court on the will contest is void. Accordingly, the appeal is due to be dismissed. MPQ, 78 So.3d at 394.

Conclusion

The judgment of the circuit court is void and the appeal, therefore, is dismissed.

APPEAL DISMISSED.

Stuart, C.J., and Bolin, Murdock, and Main, JJ., concur.

      Some parts of the record indicate that the will contest was filed on September 15, 2010.

      The probate court included a cover page on its certified record that listed each document included in the certified record. The cover page also states: "In compliance with an Order of the Circuit Court, I hereby certify that the following are all the papers on file and of record in the matter of the Estate of Clifton McElroy, Jr., deceased." However, there is no order of the circuit court in the record on appeal asking the probate court to certify its record from the proceedings in the probate court.

      The first order entered by the circuit court is dated September 12, 2012, and it set the case for a status conference on October 10, 2012.

      We make no determination regarding whether the will contest could have been properly transferred to the circuit court pursuant to § 43-8-198 at the time the appellants requested such a transfer. See generally Bond, 3 So.3d at 854 (holding that § 43-8-198 must be read in conjunction with § 43-8-190 ). Regardless, the probate court's "Order of Removal" simply cannot be read as an attempt to transfer only the will contest to the circuit court pursuant to § 43-8-198.


author: MAIN, Justice.

text:
    Alan NEWELL v. Floyd NEWELL
    1160851
    Supreme Court of Alabama.
    December 15, 2017
    James D. Hughston and D. Edgar Black of Black & Hughston, P.C., Muscle Shoals, for appellant.
    Sharon Hindman Hester of Hester & James, LLC, Russellville, for appellee.
   MAIN, Justice.

Alan Newell appeals from a summary judgment entered against him on various claims and counterclaims relating to two tracts of real property located in Franklin County. For the following reasons, we reverse and remand.

I. Facts and Procedural History

This appeal arises from a dispute between a father, Floyd Newell, and his son, Alan, regarding the ownership of two tracts of land located in Franklin County. The two tracts are farmland referred to, respectively, as "the Hester farm" and "the DeVaney farm." Floyd is the title owner of the two properties. Alan, however, claims to be the true owner of the properties and asserts that the properties were deeded to Floyd only as security for loans Floyd made to Alan to purchase the land.

On February 21, 2013, Floyd sued Alan, asserting claims of ejectment and detinue. Specifically, Floyd alleged that Alan was unlawfully withholding possession from Floyd of the Hester farm and the DeVaney farm, as well as a number of items of personal property allegedly belonging to Floyd. Alan filed a counterclaim that also alleged claims of ejectment and detinue. Alan contended that it was, in fact, Floyd who had wrongfully obtained possession of the Hester farm and the DeVaney farm and who was precluding Alan's rightful access to the properties. Alan also contended that Floyd was wrongfully withholding various items of Alan's personal property. Alan subsequently amended his counterclaim to add counts seeking a declaration of an equitable mortgage for both the Hester farm and the DeVaney farm. Alan contended that he purchased each property with a loan from Floyd and that the deed to each property was placed in Floyd's name as security for purchase-money loans.

Floyd moved for a summary judgment as to the ejectment and equitable-mortgage counterclaims, contending that there was no genuine issue as to any material fact regarding the ownership of the two properties. The deposition testimony of Floyd and Alan was submitted in support of and in opposition to the summary-judgment motion. That testimony is hopelessly at odds.

Alan testified that the Hester farm was purchased in 1992. He claims that, upon learning that the farm was for sale, he arranged financing to purchase the property from a local bank. According to Alan, before the closing on the sale of the property, Floyd offered to finance the purchase so long as Alan agreed to repay the full purchase price of $65,000, plus $5,000 in interest. Alan says that, at the time of purchase, he paid Floyd $35,000 toward the purchase price. According to Alan, the title to the Hester farm was placed in Floyd's name as security for the loan Floyd made to Alan. Alan claims that he made payments toward the loan and that it was paid off in 1999. Alan also claims that he was in possession of the Hester farm following its purchase. He testified that he raised cattle on the Hester farm for several years; that he built an entrance to the farm secured by a gate; that he paid half the cost of constructing a barn on the farm; and that he placed a mobile home and a camper on the farm.

As to the DeVaney farm, Alan contends that he also purchased this property through a loan from Floyd and that the title to the DeVaney farm was, like the Hester farm, held by Floyd as security for the loan. Alan testified that the property was purchased at auction in 1995 for $89,000. Alan contends that repayment of the loan he used to purchase the DeVaney farm was accomplished by the withholding of $10,000 in annual compensation that he was allegedly due from the family business. Specifically, he claims that he was a partner in Floyd's heating and air-conditioning business and that, as part of his compensation, the company was making a $10,000 per year contribution into a retirement account established for Alan. Alan claims that he and Floyd agreed that Floyd would withhold the retirement contribution for nine consecutive years to pay off the loan. Alan states that he kept cattle on the DeVaney farm; that he cut, hauled, and stored hay on the farm; that he built a fence and gates around the farm; and that he paid for all the improvements to the farm.

Floyd flatly denies Alan's claim of ownership of the two farms. Floyd contends that he purchased both the Hester farm and the DeVaney farm and that he owns the farms outright. He denies lending Alan money to purchase the properties. He denies that Alan made any payments to him toward the purchase price of the farms. He disputes claims that Alan made improvements to the farms. He denies that Alan was a partner in his heating and air-conditioning business or that any retirement account or contribution was ever set up for Alan or that he received any payment from Alan through withholding such funds. Floyd admits to no more than allowing Alan to use the properties in varying degrees over the years.

On August 3, 2015, the trial court entered a partial summary judgment in favor of Floyd as to the ejectment claim and counterclaim and as to Alan's claim seeking recognition of an equitable mortgage. The trial court specifically held that the basis for Alan's claim of ownership of the two tracts of real property was barred by the Statute of Frauds. On May 15, 2017, the trial court entered a final judgment disposing of all remaining claims. This appeal followed.

II. Standard of Review

Alan's appeal concerns only the claims disposed of by the partial summary judgment. Our review of a summary judgment is de novo. Tanner v. State Farm Fire & Cas. Co., 874 So.2d 1058, 1063 (Ala. 2003). In reviewing a summary judgment, we apply the same standard used by the trial court-whether there has been a showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; Bond v. McLaughlin, 229 So.3d 760 (Ala. 2017). Moreover, we review all evidence in the light most favorable to the nonmovant. Foster v. North Am. Bus Indus., Inc., 236 So. 3d 70 (Ala. 2017).

III. Analysis

On appeal, Alan argues that there are material facts in dispute concerning his interest in the Hester farm and the DeVaney farm such that a summary judgment on the ejectment and equitable-mortgage claims was improper. Specifically, he contends that he presented sufficient evidence to support his equitable-mortgage claim. Further, he contends that his equitable-mortgage claim is not subject to the Statute of Frauds. Floyd, on the other hand, contends that the trial court properly concluded that the Statute of Frauds barred Alan's claims and also questions the sufficiency of the evidence submitted by Alan in response to the motion for a summary judgment.

It is clear from Alan's pleadings and from the arguments made in this Court and in the trial court that what Alan terms an "equitable mortgage" is what this court has long recognized as a "resulting trust in the nature of an equitable mortgage."

"When one person makes a loan to another with which to purchase lands, and by mutual agreement a deed is made directly from the vendor to the lender as security for the loan, the transaction partakes of the nature both of a resulting trust and a mortgage. A resulting trust, because the money loaned becomes that of the borrower, and the title acquired with his money is taken in the name of another; a mortgage, because it is given as security for the debt due from lender to borrower.
"For convenience this court has come to call it a trust in the nature of an equitable mortgage. For purposes of equitable relief it is treated as a mortgage. It is not subject to the statute of frauds."

O'Rear v. O'Rear, 220 Ala. 85, 86, 123 So. 895, 896 (1929). Stated another way:

"[W]hen complainant procures a loan of the funds from respondent, such funds belong to complainant, although provided by respondent; and that when title is taken in respondent as security for the loan, the respondent is held to receive the title in trust, and as complainant provided the funds it is a resulting trust in the nature of a mortgage, and the statute of frauds does not apply."

Pollak v. Millsap, 219 Ala. 273, 276, 122 So. 16, 19 (1928). See also Dorman v. Knapp, 284 Ala. 387, 390, 225 So.2d 799, 801-02 (1969) ; Holman v. Weed, 248 Ala. 179, 181, 26 So.2d 721, 722 (1946) ; Leonard v. Duncan, 245 Ala. 320, 322-23, 16 So.2d 879, 881 (1944) ; and Gunter v. Jones, 244 Ala. 251, 253, 13 So.2d 51, 53 (1943).

A resulting trust in the nature of a mortgage arises by implication of law and is therefore not subject to the Statute of Frauds. See, e.g., § 19-3B-1301, Ala. Code 1975 ("No trust concerning lands, except such as results by implication or construction of law, ... can be created, unless by instrument in writing ...."); McClellan v. Pennington, 895 So.2d 892, 897 (Ala. 2004) ; and Perryman v. Pugh, 269 Ala. 487, 493, 114 So.2d 253, 259 (1959) ("The equity sought to be enforced under the trust aspect is one which arises by operation of law and is not dependent upon a contract; hence, the statute of frauds is no obstacle to the establishment of such trust.").

In this case, because the Statute of Frauds is not applicable to a claim seeking a declaration of a trust in the nature of an equitable mortgage, the summary judgment entered on that basis was in error.

Furthermore, nearly every fact relevant to Alan's counterclaim seeking an equitable mortgage is disputed. Alan maintains that Floyd loaned him the money to purchase the Hester farm and the DeVaney farm and took the deeds to those properties as security for the loans. Floyd, on the other hand, denies the loans all together. Given the elemental nature of these disputed facts, summary judgment was inappropriate. See McClellan, 895 So.2d at 897 (holding that genuine issues of material fact precluded summary judgment as to claim of a resulting trust).

IV. Conclusion

Because the Statute of Frauds does not prohibit the establishment of a resulting trust in the nature of an equitable mortgage by parol evidence and because there are genuine issues of material fact regarding whether a resulting trust in the nature of an equitable mortgage was created, the summary judgment entered by the trial court was improper. Accordingly, that judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Stuart, C.J., and Bolin, Murdock, and Bryan, JJ., concur.

      The DeVaney farm is also sometimes referred to in the record as "the McAfee farm."

      We note that, in light of the recognition that a trust in the nature of an equitable mortgage may be proved by parol evidence, this Court has required that such proof be clear and convincing. See, e.g., Dorman, 284 Ala. at 391, 225 So.2d at 802 (" '[T]o entitle a complainant to relief in such cases, the testimony must be clear, consistent, strong, and convincing.' " (quoting Knaus v. Dreher, 84 Ala. 319, 319, 4 So. 287, 288 (1888) )). We make no comment at this time, however, regarding the application of this standard to the evidence before the trial court on summary judgment, and we do not mean to express any opinion as to the ultimate merits of the case.


text:
    EX PARTE Shaundalyn N. ELLIOTT
    (In re Shaundalyn N. Elliott v. Allstate Insurance Company)
    1160941
    Supreme Court of Alabama.
    December 22, 2017
    James G. Bodin of McPhillips, Shinbaum, L.L.P., Montgomery, for petitioner.
    De Martenson and John D. Herndon of Huie, Fernambucq & Stewart, LLP, Birmingham, for respondent.
   MAIN, Justice.

Shaundalyn Elliott petitions this Court for a writ of mandamus directing the Lowndes Circuit Court to vacate its order transferring this case to the Montgomery Circuit Court. We grant the petition and issue the writ.

I. Facts and Procedural History

On June 11, 2014, Elliott, a resident of Montgomery County, was injured in an automobile accident in the City of Hayneville in Lowndes County. On February 23, 2017, Elliott filed this lawsuit in the Lowndes Circuit Court against her automobile insurer, Allstate Insurance Company ("Allstate"), seeking uninsured-motorist benefits related to the accident. Elliot alleged that the accident was caused by a "phantom driver," whose location is unknown.

On March 16, 2017, Allstate filed a motion to transfer the action from the Lowndes Circuit Court to the Montgomery Circuit Court. The motion stated:

"1. This is a breach of contract action wherein [Elliott] claims uninsured motorist insurance policy benefits against Allstate.
"2. [Elliott] is presently and was at the time of the motor vehicle accident in question a resident of Montgomery County, Alabama (see Complaint).
"3. Allstate is presently and was at the time of the incident in question a foreign corporation with [its] principal place of business in the State of Illinois.
"4. The Allstate insurance policy in question was entered into and issued to [Elliott] by Allstate in Montgomery County, Alabama....
"5. Upon information and belief, Allstate states that all medical treatment which [Elliott] claims is related to the accident in question occurred in Montgomery County, Alabama. Further, Allstate does business by agent in Montgomery County, Alabama.
"6. Additionally, pursuant to the provisions of § 6-3-21.1, [Ala. Code 1975,] this action is due to be transferred to the Circuit Court for Montgomery County, Alabama, for the convenience of the parties and witnesses and/or in the interest of justice. The only nexus to Lowndes County, Alabama, is that the accident in question occurred in Lowndes County, Alabama."

Attached to the motion was the affidavit of Suzanne Lowe, the insurance agent who issued the policy to Elliott. Lowe attested that the Allstate policy was issued to Elliott in Montgomery County.

Elliott filed a response to the motion for a change of venue. In her response, Elliott argued that because the accident and her injuries occurred in Lowndes County, Lowndes County, which has a strong connection to the action, is a proper venue under § 6-3-7, Ala. Code 1975. She noted that the accident was investigated by a City of Hayneville police officer. Citing prior precedent of this Court, Elliott argued that there was a strong nexus between the action and Lowndes County so that transferring the action to Montgomery County pursuant to § 6-3-21.1, Ala. Code 1975, would be improper. She further noted that Allstate had provided no evidence indicating that any party or witness would be inconvenienced by a trial in Lowndes County.

Following a brief hearing on the motion, the trial court, on June 23, 2017, granted Allstate's motion for a change of venue. Elliott then filed this petition.

II. Standard of Review

" 'The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 302 (Ala. 1986). "Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995). "When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court [exceeded] its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner." Id. Our review is further limited to those facts that were before the trial court.

Ex parte American Resources Ins. Co., 663 So.2d 932, 936 (Ala. 1995).' "

Ex parte Southeast Alabama Timber Harvesting, LLC, 94 So.3d 371, 373 (Ala. 2012) (quoting Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala. 1998) ).

III. Analysis

Elliott argues that the trial court erred in transferring this case to the Montgomery Circuit Court. As an initial matter, we note that, as the site of the underlying accident, it is undisputed that Lowndes County is a proper venue for this case. See § 6-3-7(a)(1), Ala. Code 1975 ("All civil actions against corporations may be brought ... [i]n the county in which a substantial part of the events or omissions giving rise to the claim occurred ...."). We further recognize that venue would also be proper in Montgomery County. See § 6-3-7(a)(3), Ala. Code 1975 ("All civil actions against corporations may be brought ... [i]n the county in which the plaintiff resided ...."). Alabama's forum non conveniens statute permits the transfer of a civil action from one appropriate venue to another "for the convenience of parties and witnesses, or in the interest of justice." The statute provides, in pertinent part:

"(a) With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein."

§ 6-3-21.1(a), Ala. Code 1975. " 'A defendant moving for a transfer under § 6-3-21.1 has the initial burden of showing that the transfer is justified, based on the convenience of the parties and witnesses or based on the interest of justice.' " Ex parte Southeast Alabama Timber Harvesting, LLC, 94 So.3d at 373 (quoting Ex parte National Sec. Ins. Co., 727 So.2d at 789 ). Furthermore, " '[w]hen venue is appropriate in more than one county, the plaintiff's choice of venue is generally given great deference.' " Ex parte J & W Enters., LLC, 150 So.3d 190, 194 (Ala. 2014) (quoting Ex parte Perfection Siding, Inc., 882 So.2d 307, 312 (Ala. 2003) ).

As to the "convenience of the parties" prong of § 6-3-21.1, this Court has held that a trial court should not grant a motion for a change of venue unless the defendant's proffered forum is " ' " ' "significantly more convenient" than the forum in which the action is filed.' " ' " Ex parte First Tennessee Bank Nat'l Ass'n, 994 So.2d 906, 909 (Ala. 2008) (quoting Ex parte Bloodsaw, 648 So.2d 553, 555 (Ala. 1994), quoting in turn Ex parte Johnson, 638 So.2d 772, 774 (Ala. 1994), quoting in turn Ex parte Townsend, 589 So.2d 711, 714 (Ala. 1991) ). Elliott argues that Allstate did not meet its burden of establishing that a change of venue is appropriate under the convenience-of-the-parties prong. In its brief before this Court, Allstate makes no argument concerning the convenience-of-the-parties prong of § 6-3-21.1 and concedes that the only issue is whether the case is due to be transferred "in the interest of justice." Thus, we agree with Elliott that the convenience-of-the-parties prong of the forum non conveniens statute does not support transfer of the case to Montgomery County.

Next, we turn to the interest-of-justice prong of § 6-3-21.1. This Court has stated:

"The 'interest of justice' prong of § 6-3-21.1 requires 'the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action.'
Ex parte National Sec. Ins. Co., 727 So.2d [788,] 790 [ (Ala. 1998) ]. Therefore, 'in analyzing the interest-of-justice prong of § 6-3-21.1, this Court focuses on whether the "nexus" or "connection" between the plaintiff's action and the original forum is strong enough to warrant burdening the plaintiff's forum with the action.' Ex parte First Tennessee Bank Nat'l Ass'n, 994 So.2d 906, 911 (Ala. 2008). Additionally, this Court has held that 'litigation should be handled in the forum where the injury occurred.' Ex parte Fuller, 955 So.2d 414, 416 (Ala. 2006). Further, in examining whether it is in the interest of justice to transfer a case, we consider 'the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county.' Ex parte Smiths Water & Sewer Auth., 982 So.2d 484, 490 (Ala. 2007)."

Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 540 (Ala. 2008).

Elliott argues that because the accident that caused her injuries occurred in Lowndes County, Lowndes County has a strong connection to this case, so that the interest of justice should not override her choice of forum. Indeed, although we have cautioned that it is not a talisman, this Court has stated that where the injury occurred is "often assigned considerable weight in an interest-of-justice analysis." Ex parte Wachovia, 77 So.3d 570, 574 (Ala. 2011). Our recent cases bear out this principle. See, e.g., Ex parte Tier 1 Trucking, LLC, 222 So.3d 1107 (Ala. 2016) ; Ex parte Wayne Farms, LLC, 210 So.3d 586 (Ala. 2016) ; Ex parte Quality Carriers, Inc., 183 So.3d 937 (Ala. 2015) ; Ex parte Manning, 170 So.3d 638 (Ala. 2014) ; Ex parte Morton, 167 So.3d 295 (Ala. 2014) ; Ex parte State Farm Mut. Auto. Ins. Co., 149 So.3d 1082 (Ala. 2014) ; Ex parte Southeast Alabama Timber Harvesting, LLC, 94 So.3d 371 (Ala. 2012). Nevertheless, "the location where the accident occurred ... is not, and should not be, the sole consideration for determining venue under the 'interest of justice' prong of 6-3-21.1." J & W Enters., 150 So.3d at 196-97.

Allstate, on the other hand, argues that Montgomery County has a strong connection to the lawsuit because: (1) Elliott resides in Montgomery County; (2) Elliott was treated for her injuries in Montgomery County; (3) Allstate does business by agent in Montgomery County; and (4) the insurance policy made the basis of Elliott's claims against Allstate was issued in Montgomery County. Even accepting Allstate's contention that Montgomery County has a "strong" connection to this action, we note that Allstate must also demonstrate that Lowndes County has a "weak" or "little" connection to the action. As we have explained:

"Our forum non conveniens analysis has never involved a simple balancing test weighing each county's connection to an action. Rather, to compel a change of venue under the 'interest of justice' prong of § 6-3-21.1, the county to which the transfer is sought must have a 'strong' nexus or connection to the lawsuit, while the county from which the transfer is sought must have a 'weak' or 'little' connection to the action. This inquiry necessarily depends on the facts of each case."

J & W Enters., 150 So.3d at 196.

In contending that Lowndes County has "little" connection to this action, Allstate relies primarily on our decision in J & W Enterprises. In that case, the plaintiff was injured in an automobile accident in Mobile County. The plaintiff filed suit in Clarke County, where the defendants resided. The defendants filed a motion to transfer the case to Mobile County. Upon denial of that motion, the defendants petitioned this Court for a writ of mandamus. In denying the petition, we reasoned:

"In the present case, the facts before this Court do not indicate that Mobile County has a particularly strong connection to this lawsuit. The accident occurred in Mobile County, and the Mobile Police Department prepared an accident report, but there the connections to Mobile County cease. None of the parties lives in Mobile County. Cruz did not receive treatment for his injuries in Mobile County. Coates and J & W have not identified any relevant documents that are located in Mobile County. No eyewitnesses are located in Mobile County, and the investigating police officer has testified that he is willing to travel to Clarke County. In light of the facts before us, Mobile County's nexus to the action is purely fortuitous-the place on the interstate where the accident occurred. Although we assign 'considerable weight' to the location where the accident occurred, it is not, and should not be, the sole consideration for determining venue under the 'interest of justice' prong of § 6-3-21.1.
"Nor is Clarke County's connection to the action markedly weak. Both defendants are located in Clarke County. Coates is a resident of Clarke County; J & W's place of business is located in Clarke County. Further, it stands to reason that documents relevant to Cruz's claims, particularly his claims of negligent or wanton entrustment, hiring, retention, and training, are located at J & W's place of business in Clarke County.
"Given the specific facts of this case, we cannot say that Mobile County has a significantly stronger connection to this case than does Clarke County so that the interest of justice will be offended by trial in Clarke County...."

150 So.3d at 196-97 (footnote omitted).

Allstate argues that, as was the case in J & W Enterprises, Lowndes County's connection to the lawsuit is "purely fortuitous"-it is merely the place were the accident occurred. Allstate thus argues that Lowndes County has a "little" connection to this action. We cannot agree.

This Court's decision in J & W Enterprises should not be read as undermining location-of-injury as the foremost factor in the interest-of-justice analysis. To the contrary, J & W Enterprises reaffirmed our assignment of " 'considerable weight' to the location where the accident occurred." 150 So.3d at 196. Instead, we merely recognized in J & W Enterprises that the location of the accident is not the sole factor to be considered in the interest-of-justice analysis and that there will be circumstances, as was the case in J & W Enterprises, where the interest of justice will not compel the case to be heard in the venue where the accident occurred.

In this case, both Lowndes County and Montgomery County have connections to this action. The accident, injuries, and police investigation occurred in Lowndes County. On the other hand, Elliott resides in Montgomery County, where she sought treatment for her injuries resulting from the accident and where the parties' contractual dealings arose. Under the specific facts of this case, Lowndes County's connection to the accident is not "little" or "weak," and Montgomery County does not have a significantly stronger connection to the case to justify a transfer of this case under the interest-of-justice prong of § 6-3-21.1. Therefore, we hold that the trial court erred in transferring this action to the Montgomery Circuit Court.

IV. Conclusion

For the above reasons, we conclude that the trial court exceeded its discretion in transferring this case to the Montgomery Circuit Court. Accordingly, the trial court is directed to vacate its order transferring this action from the Lowndes Circuit Court to the Montgomery Circuit Court.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Parker, Wise, Bryan, and Sellers, JJ., concur.

Shaw, J., concurs in the result.

Murdock, J., dissents.

The plaintiff resides in Montgomery County. The defendant does business in Montgomery County. The contract between the plaintiff and the defendant was entered into in Montgomery County. The payment allegedly due by the defendant to the plaintiff was due to be paid to the plaintiff in Montgomery County. When that payment was not made to the plaintiff in Montgomery County, the resulting alleged breach of contract occurred in Montgomery County. If the defendant is liable to the plaintiff for breach of contract, the gravamen of that claim is not the automobile accident that occurred in Lowndes County-it is the defendant's failure to make good on a contractual obligation to pay plaintiff insurance proceeds in Montgomery County.

Notwithstanding the foregoing, the propriety of venue in Lowndes County under § 6-3-7(a), Ala. Code 1975, has not been contested to this Court. Elliot does argue, however, that, under the interest-of-justice prong of § 6-3-21.1, Ala. Code 1975, the case should be heard in Lowndes County. The majority of this Court agrees. I do not.

Even under the extant interest-of-justice jurisprudence of this Court, with which I have repeatedly disagreed, see, e.g., Ex parte Wachovia Bank, N.A., 77 So.3d 570, 576-78 (Ala. 2011) (Murdock, J., dissenting); and Ex parte Autauga Heating & Cooling, LLC, 58 So.3d 745, 751-52 (Ala. 2010) (Murdock, J., dissenting), this Court has held that "[t]he 'interest of justice' prong of § 6-3-21.1 requires 'the transfer of the action from a county with little, if any, connection to the action, to the County with a strong connection to the action.' Ex parte National Sec. Ins. Co., 727 So.2d [788,] 790 [ (Ala. 1998) ]," Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 540 (Ala. 2008), and also that, as a general rule, "litigation should be handled in the forum where the injury occurred." Ex parte Fuller, 955 So.2d 414, 416 (Ala. 2006). For the reasons stated in the first paragraph, I see no way to conclude that Montgomery County has little or no connection to this action or that it is not the county where the injury-the breach of contract-occurred.


author: THOMPSON, Presiding Judge.

text:
    LAWSON STATE COMMUNITY COLLEGE v. Helen D. MITCHELL
    2160821
    Court of Civil Appeals of Alabama.
    December 1, 2017
    David M. O'Brien, sr. assoc. counsel, Alabama Community College System, Montgomery, for appellant.
    Helen D. Mitchell, pro se.
   THOMPSON, Presiding Judge.

Lawson State Community College ("Lawson State") appeals from a decision of the hearing officer appointed pursuant to the Students First Act of 2011 ("the SFA"), § 16-24C-1 et seq., Ala. Code 1975. The hearing officer's decision overturned the termination of Helen D. Mitchell's employment at Lawson State on the ground that the termination was arbitrary and capricious.

The record before us indicates the following. Mitchell was an administrative assistant in Lawson State's athletic department, having been hired for that position in August 2004. There is no dispute that, until the actions made the basis of this matter, Mitchell had performed her job well. At the time of the incidents that led to the termination of Mitchell's employment, Carlton Rice, Lawson State's athletic director, was her immediate supervisor. Sharon Crews was Lawson State's vice president for administrative services and served as its senior personnel officer. Dr. Perry W. Ward was the president of Lawson State, and he served as the hearing officer during Mitchell's termination hearing.

According to Mitchell's job description, a copy of which was admitted at the termination hearing, one of her duties was to "coordinate with Bob McCloskey Insurance for payments and claims for athletes." Bob McCloskey Insurance is the broker that procured the insurance policy ("the policy") used by the Alabama Community College Conference, which includes Lawson State, for their student athletes. At the termination hearing, Crews testified that Lawson State paid the premiums for coverage of its student athletes. The cost of the premiums was determined by the number of players on each of Lawson State's athletic teams. Crews said that the student whose claim was at issue ("the student") was included in that number when the premium was paid for the policy. Crews testified that the student was a covered person under the policy. The policy itself does not contain any language that would suggest that the student was ineligible for coverage under the policy.

In her role as insurance coordinator, Mitchell was to assist in processing insurance claims for student athletes who were injured. Evidence in the record, which is largely undisputed, indicates that Mitchell received an insurance claim ("the claim") from the student, who was attending Lawson State on an athletic scholarship. At all times relevant to this matter, the student was enrolled at Lawson State as a student athlete. Crews testified that Rice informed her that Mitchell had not filed the claim, and Crews told him to tell Mitchell to please file it. On November 15, 2016, Rice sent an e-mail to Mitchell telling her that it was "okay" for her to file the claim. Mitchell replied to Rice, and sent a copy of her reply to Crews, saying that it was not "okay" for her to file the claim because, Mitchell said, to do so would constitute fraud. During her testimony, Mitchell explained her position that, if a student had not had a physical examination, that student was not an "eligible player" and would not be covered under the policy. She said that her records indicated that the student had not yet had a physical examination and that, therefore, she had refused to submit the student's claim form. Mitchell acknowledged that she had not seen a copy of the policy.

In response to Mitchell's contention, Crews sent an e-mail to Mitchell telling her that if Mitchell did not want to file the claim, she did not have to, but to send the student's claim form to Crews or to Rice and Crews would file the claim. Crews testified that, the next day, after receiving Crews's e-mail, Mitchell told her that she "did not have anything to provide, and she could not assist us with that issue."

On November 17, 2016, Crews said, she met with Mitchell and Rice. At that meeting, Crews said, she asked Mitchell where the student's claim form was. Mitchell responded that she did not have the form. According to Crews, Mitchell said that the form "was trash, so she threw it away." Crews testified that the claim form was a record that belonged to Lawson State. Mitchell testified that documents containing confidential information regarding students were destroyed regularly.

Crews said that, when she asked Mitchell whether Rice had told her to file a claim for every student who submitted a claim form, Mitchell told her that Rice did not tell her what to do. Crews said that she then asked Mitchell whether the process was to "automatically" file a claim when a claim form is submitted and whether Rice had told her to follow that process on a regular basis. Crews testified that Mitchell said: "[N]o, Mr. Rice does not tell me anything to do because he doesn't know anything to tell me." Mitchell denied that she made that statement.

Crews said that, during the November 17, 2016, meeting, Mitchell was "defensive" and "arrogant" and "just blatantly disrespectful toward her supervisor." Crews said that Lawson State could not condone behavior such as the behavior that Mitchell had displayed because, she said, "[i]t would just create total chaos." Lawson State's disciplinary guidelines, of which Mitchell was aware, provide that disciplinary measures are to be determined on a case-by-case basis. The guidelines allow an employee's employment to be terminated for a first offense, if warranted.

Because of Mitchell's behavior, Crews said, she recommended that Mitchell's employment be terminated. On December 14, 2016, Crews provided Mitchell with written notice that she was recommending the termination of Mitchell's employment on the grounds of insubordination, failure to perform her duties in a satisfactory manner, and/or other good and just cause in connection with her refusal to file the student's claim.

After the hearing, Ward issued a written decision setting forth his findings of fact and determining that "Ms. Mitchell had no objectively valid justification for refusing to process [the student's] insurance form or for not providing the same to Mr. Rice or Ms. Crews. Moreover, she had no objectively valid justification for destroying a record of [Lawson State]." Ward further determined that there was no credible evidence to suggest that the proposed termination of Mitchell's employment was based on political or personal reasons. Ward then concluded, based on the evidence presented, "as well as the demeanor and credibility of the witnesses," including a determination that Crews's testimony regarding Mitchell's comments to Rice was "far more credible" than Mitchell's testimony, that Mitchell's conduct constituted "insubordination, failure to perform duties in a satisfactory manner, and/or other good and just cause." He then adopted the recommendation to terminate Mitchell's employment with Lawson State.

Mitchell appealed the decision in accordance with the requirements of the SFA. Lawson State submitted the record of the termination hearing to the hearing officer designated to consider the appeal ("the hearing officer"). Mitchell attempted to submit additional documents to the hearing officer, who granted Lawson State's motion to strike those documents. The decision of the hearing officer on appeal was based solely on the record created before Ward. The hearing officer did allow arguments by the parties.

After the arguments, the hearing officer issued a decision on appeal in which he accepted Ward's factual findings. However, the hearing officer wrote, "the sanction imposed on ... Mitchell for the misconduct shown was extremely harsh and severe and not rationally related to her actions." The hearing officer noted that Mitchell had served as the administrative assistant to the athletic director for nine years and that she had received excellent job reviews. The hearing officer stated:

"[Lawson State] has terminated an excellent long term employee based upon her refusal to submit a claim she believed was fraudulent, [Ward's] finding that she was insubordinate by talking back in a meeting about its submission, and [Ward's] finding that an easily replaceable insurance form was a 'record of the College' and had been destroyed. [Mitchell] did not refuse to file the claim out of any personal animus or willful neglect of her duties. To the contrary, she was concerned that [Lawson State] was submitting what she thought was an improper insurance claim, especially in view [of] her previous attempt to ensure the eligibility of that athlete. While it was not within her abilities or duties to make such a decision she was nonetheless acting, in her view, in her employer's best interests. The importance of this 'record of the College' is belied by the fact that no one ever simply called the student athlete and asked him to file a new one. [Rice] did not testify to any mental anguish from her criticism. No doubt he has suffered much worse abuse in the performance of his duties. This disciplinary action was unduly harsh and severe in view of [Mitchell's] work record, the magnitude of the offenses found to have occurred, and the multitude of disciplinary actions less than termination that could have been imposed."

Citing Ex parte Lambert, 199 So.3d 761 (Ala. 2015), the hearing officer concluded that the decision to terminate Mitchell's employment rose to the level of being arbitrary and capricious and remanded the matter for consideration of a lesser penalty. Lawson State appealed the hearing officer's decision to this court.

On appeal, Lawson State contends that the hearing officer erred in reversing the decision to terminate Mitchell's employment. Specifically, Lawson State says, the hearing officer failed to give Ward's decision the deference he was required to give it pursuant to § 16-24C-6(e), Ala. Code 1975, a section of the SFA. In reversing the decision, Lawson State says, the hearing officer improperly "engaged in fact-finding and interjected speculation as a basis for his decision."

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

Ex parte Lambert, 199 So.3d at 765.

"The plurality decision in Ex parte Lambert explained that
" 'the arbitrary-and-capricious standard of review applicable to appellate courts reviewing decisions under the [former Teacher Tenure Act, Ala. Code 1975, § 16-24-1 et seq. (repealed),] and the [former Fair Dismissal Act, Ala. Code 1975, § 36-26-100 et seq. (repealed),] now applies to hearing officers' review of employers' decisions under the SFA. The SFA provides that "[a] final ruling, either affirming or reversing the employer, shall be rendered" by the hearing officer. § 16-24C-6(e). "When a hearing officer chooses [a penalty] option other than the cancellation voted for by a board of education, the hearing officer has 'reversed the decision' of the board." Ex parte Wilson, 984 So.2d 1161, 1166 ( [Ala.] 2007). The Court of Civil Appeals correctly recognized in its decision below that "[i]mplicit in giving the hearing officer the authority to reverse a Board's decision is the power to remand the action." Lambert [v. Escambia Cty. Bd. of Educ. ], 199 So.3d [751] at 760 [ (Ala. Civ. App. 2013) ]. Under the arbitrary-and-capricious standard of review, if a hearing officer determines that the sanction imposed by an employer is arbitrary and capricious, the hearing officer may remand the matter with instructions to the employer to impose a lesser penalty.'
" 199 So.3d at 768-69."

Escambia Cty. Bd. of Educ. v. Lambert, 255 So.3d 198, 206 (Ala. Civ. App. 2016).

" 'The arbitrary-and-capricious standard is " ' "extremely deferential," ' " prohibiting the reviewing hearing officer from substituting his judgment for that of the Board. [ Ex parte Lambert, 199 So.3d 761, 767 (Ala. 2015) ] (quoting Ex parte Dunn, 962 So.2d [814,] 816 [ (Ala. 2007) ] (emphasis omitted)). Put another way, " '[w]here "reasonable people could differ as to the wisdom of [the Board's] decision[,] ... the decision is not arbitrary." ' " Id. (quoting Ex parte Dunn, 962 So.2d at 816 ). Traditional definitions of the terms "arbitrary" and "capricious" indicate that few decisions will be found to violate the standard.
" ' " 'A decision is not arbitrary where there is a reasonable justification for the decision or where the determination is founded upon adequate principles or fixed standards.' Sexton v. Tuscaloosa County Civil Serv. Bd., 426 So.2d 432, 435 (Ala. Civ. App. 1983). ' " ' "[A] decision is capricious if it is so unreasonable as to 'shock the sense of justice and indicate lack of fair and careful consideration.' " ' " ' Alabama Dep't of Human Res. v. Dye, 921 So.2d 421, 427 (Ala. Civ. App. 2005) (quoting Westring v. James, 71 Wis.2d 462, 476-77, 238 N.W.2d 695, 702-03 (1976), quoting in turn Scharping v. Johnson, 32 Wis.2d 383, 390, 145 N.W.2d 691, 695 (1966) )."
" ' Alabama Dep't of Youth Servs. v. State Pers. Bd., 7 So.3d 380, 386 (Ala. Civ. App. 2008).'
" Escambia Cty. Bd. of Educ. v. Lambert, 255 So.3d 198, 209 (Ala. Civ. App. 2016)."

J.F. Ingram State Tech. Coll. v. Carter, 227 So.3d 499, 509 (Ala. Civ. App. 2017) (footnote omitted).

In this case, after accepting Ward's factual finding determining that Mitchell had failed to perform her duties in a satisfactory manner and explicitly agreeing with Ward's determination that Mitchell had been insubordinate, the hearing officer then set forth reasons that he apparently believed mitigated Mitchell's conduct. Ward had found that Mitchell had no objectively valid justification for her conduct. Based on his own view of the evidence, however, the hearing officer concluded that, because Mitchell had previously been a good employee and did not act out of malice, termination of her employment was unduly harsh and "not rationally related to her actions." He also concluded that Rice did not suffer mental anguish as a result of Mitchell's comment. Whether Rice did or did not suffer mental anguish is irrelevant to the consideration of whether Ward's decision was appropriate.

"The Board, not the hearing officer, is the entity charged with making factual determinations and with determining the appropriate penalty for violations of its own policies. The hearing officer may reverse the decision of the Board and remand the matter for the entry of a lesser punishment only if the Board's decision is arbitrary or capricious." Escambia Cty. Bd. of Educ. v. Lambert, 255 So.3d at 210 ; see also Carter, supra. We note that, in the context of the administrative proceedings afforded for two-year educational institutions, Ward acted in the same capacity as "the Board" in the quoted authority. See § 16-24C-3(5), Ala. Code 1975.

In his decision, Ward set forth the facts on which his decision was based, and those facts are supported by the record. Based on those facts, Ward concluded that Lawson State had met its burden of demonstrating that Mitchell's conduct constituted insubordination, failure to perform her duties in a satisfactory manner, and/or good and just cause for discipline. Ward also determined that the conduct proven warranted the termination of Mitchell's employment. We cannot say that the disciplinary action Ward took against Mitchell "is so unreasonable as to 'shock the sense of justice and indicate lack of fair and careful consideration.' " Carter, 227 So.3d at 509 (quoting other cases; internal quotation marks omitted).

After reviewing the record and giving Ward's decision the due deference required, we conclude that the decision to terminate Mitchell's employment at Lawson State was not arbitrary and capricious. The hearing officer substituted his judgment for Ward's in deciding that the penalty for Mitchell's conduct was unduly harsh, and, in doing so, he exceeded his authority. Accordingly, the hearing officer's decision is reversed, and we render a judgment reinstating Ward's decision in its entirety.

Lawson State's motion to strike portions of Mitchell's brief is denied as moot.

REVERSED AND JUDGMENT RENDERED.

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

      Crews testified that Rice had showed her a document indicating that the student had had a physical examination. However, Crews did not know the date of that examination.

      This court in Escambia County Board of Education v. Lambert referred to the main opinion in Ex parte Lambert as a plurality decision, noting that,
      "[a]lthough a majority of the supreme court agreed that the arbitrary-and-capricious standard was the appropriate standard for the hearing officer to apply to his review of the Board's decision, three members of the court opined that the remand to the hearing officer was unnecessary because, as a matter of law, the Board's decision could not be considered arbitrary and capricious. Ex parte Lambert, 199 So.3d 769-70 (Shaw, J., concurring in part and dissenting in part, joined by Stuart and Bolin, JJ.)."
      255 So.3d at 202 (footnote omitted). This court also noted that
      "[t]wo members of the court opined that the appropriate standard to be applied to review of the Board's decision was a standard 'similar to the "clearly erroneous" standard of review.' Ex parte Lambert, 199 So.3d at 771 (Bryan, J., concurring in part and dissenting in part, joined by Wise, J.). Those justices concurred to reverse the hearing officer's decision and to remand the cause to the hearing officer, but they would have instructed the hearing officer to apply what they believe is the appropriate standard of review."
      255 So.3d at 202 n. 1.